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https://www.courtlistener.com/api/rest/v3/opinions/2766063/	[J-52-2013] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. COMMONWEALTH OF PENNSYLVANIA, : No. 657 CAP : Appellee : Appeal from the Order entered on : 04/04/2012 in the Court of Common Pleas, : Criminal Division of Montgomery County at v. : No. CP-46-CR-0002785-2005 : : JOHN CHARLES EICHINGER, : : Appellant : SUBMITTED: June 19, 2013 : CONCURRING OPINION MR. JUSTICE STEVENS DECIDED: December 31, 2014 I join the Majority in its entirety. I write separately to emphasize my agreement with the Majority’s admonishment to PCRA capital counsel, the Federal Community Defender Office, that the tactics employed in this case, which are designed to impede the already overburdened wheels of justice, cannot be tolerated. Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and, thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims.” Commonwealth v. Chmiel, 612 Pa. 333, 468, 30 A.3d 1111, 1191 (2011) (citation and footnote omitted). If change is desired, the proper path of action is to lobby the legislature rather than to overwhelm our courts with such a systematic attack on the death penalty statute. The record establishes that Appellant’s crimes were particularly heinous. On March 25, 2005, Appellant planned the murder of Heather Groves, stabbed her repeatedly seeking to puncture her organs, stabbed and murdered Heather’s three- year-old daughter, who had witnessed the stabbing of her mother, and then murdered Heather’s sister, Lisa, to eliminate her as a witness. Not done yet, Appellant returned to Heather and stabbed her in the diaphragm and slit her throat, killing her. As described by the well-reasoned Majority, Appellant received full representation and due process, resulting in court-appointed counsel litigating numerous pre-trial and post-trial motions, a three-day death penalty phase hearing, as well as this Court’s examination of the proceedings, evidence, and sentence upon direct appeal. See Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122 (2007), cert. denied, 552 U.S. 894 (2007). However, thereafter, the record reflects PCRA capital counsel raised 27 claims of error, which can only be described as excessive, in the amended PCRA petition. This resulted in 22 days of PCRA court evidentiary hearings and a 129-page PCRA court opinion. PCRA capital counsel has continued with this strategy on appeal to this Court by presenting 12 issues for our consideration, many of which are frivolous arguments, “which is to say arguments that cannot conceivably persuade the court[.]” Chmiel, 612 Pa. at 468, 30 A.3d at 1190 (quotations and quotation marks omitted). While an attorney may have an ethical obligation to be a zealous advocate, he has no duty to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further personal political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which his client may be granted relief; but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Such personal political viewpoints, manifested in such a manner as to cause disruption and paralysis, have no legitimate place in our court system. Moreover, the public resources wasted by PCRA capital counsel’s pursuit of numerous frivolous claims cannot be tolerated. Substantial investigative resources, police officers testifying in court, and judges, along with court personnel, devoting precious time to the rejection of excessive frivolous claims is a basis for imposing sanctions upon those attorneys who violate or ignore their obligations under our Rules of Professional Conduct. While federally-financed lawyers, such as those who represented Appellant as PCRA capital counsel in this case, have the duty, like any attorney, to raise and pursue viable claims, they must do so within the ethical limits which govern all Pennsylvania lawyers. In the case sub judice, Appellant committed his brutal murders more than nine years from the date of this writing; however, and despite the fact that a jury made the agonizing decision to sentence Appellant under the death penalty laws, this case illustrates the administration of justice is more often than not paralyzed by what the Majority accurately calls “predictable tactics.” Due, in part, to PCRA capital counsel’s dysfunctional strategies, the families of the victims become yet another victim to Appellant’s brutal crimes. As Chief Justice Castille eloquently stated in his Concurring Opinion in Commonwealth v. Spotz, 610 Pa. 17, 170, 18 A.3d 244, 335 (2011): “[T]his Court is not obliged to indulge political tactics that seek to dismantle or impede governing law. The difference of death does not mean that any and all tactics in pursuit of the defeat of capital judgment are legitimate.” Mr. Chief Justice Castille joins this concurring opinion.	01-03-2023	12-31-2014
https://www.courtlistener.com/api/rest/v3/opinions/3444812/	Affirming. A.S. Tribble is appealing from a judgment entered in conformity with the verdict of a jury in an action in which he sought to recover of G.H. Giles $544.20 with interest from August 23, 1923, on a writing alleged to be a due bill. In his petition as amended appellant, alleged that on August 23, 1923, appellee executed and delivered to him a due bill whereby he promised and agreed to pay him the sum of $544.20, balance due on a farm settlement, no part of which had been paid. The alleged due bill consists of a page in a book kept by appellant and introduced in evidence purporting to set forth items of a partnership farm account between the parties which shows sums expended by appellant and credit due appellee. The balance in favor of appellant being $544.20 and at the foot of the page is the following: "August 23, 1923. Balance due A. S. Tribble, balance on farm settlement on Young farm." This is signed by G.H. Giles. By answer as amended appellee admitted that he signed the writing sued on but pleaded payment, satisfaction and settlement in full of all accounts between him and appellant and further pleaded limitations. By agreement of parties all affirmative matter in the answer as amended was controverted of record. There is a sharp controversy between the parties as to whether the page of the book kept by appellant and signed by appellee is a due bill, it being the contention of appellee that it is a mere acknowledgment of the status of the accounts to the date indicated. It is to be doubted whether the writing sued on by appellant was intended by the parties to be or whether it is in fact a due bill. We are inclined to the opinion that it was merely a memorandum showing the amount due appellant as of that date. See Patterson v. Swickard, 41 S.W. 435, 19 Ky. Law Rep. 661. If it was merely Page 360 an accounting between the parties it was barred by limitations since the action was not brought for nearly 15 years after that date. But it is unnecessary to determine that question since the judgment may be affirmed on other grounds. The evidence shows that in 1919 the parties purchased a 120-acre farm from John Young for $24,000 and entered into a partnership for the operation of the farm. Appellant was most active in looking after the farm and kept the accounts. The book filed in evidence shows that the accounts continued for a year or two after the settlement referred to in the pleading was made. The evidence discloses that due to the high price paid for the land, the venture proved to be unprofitable and the parties finally sold the farm and at the end owed John Young $8000 evidenced by their personal notes. Mr. Young was growing old and desired to have the matter closed out so he proposed to accept $2000 in satisfaction of the notes. Appellee testified that appellant paid Mr. Young $500 in cash and that he, appellee, and his brother conveyed to Young a tract of land to make up the balance of the $2000 in satisfaction of the note; that it was agreed between appellant and appellee that it was a final and complete settlement between them and it was likewise agreed by all parties concerned that it was a full and complete settlement between them and Young and that the notes were thereupon surrendered. This was denied by appellant who testified that a settlement between him and appellee was not involved in the Young transaction and that appellee still owed him the sum sued for. The court apparently treated the paper evidencing the amount and signed by appellee as a due bill since he instructed the jury to find for appellant the sum sued for with interest from August 23, 1923, unless they believed from the evidence that appellee paid or satisfied the due bill by the agreement with defendant at the time the partnership made its final settlement with John Young, in which event the jury would find for appellee. Under that instruction which was not objected to the jury apparently believed and accepted appellee's theory of the case and found for him, and since there was evidence to support their verdict, it should not be disturbed. Appellee further contends that subsequent to August Page 361 23, 1923, appellant made no accounting to him for proceeds and profits derived from the farm and appellant is complaining that he was not permitted to go into detail as to items of expenditure made by him after August 23, 1923, to show that there were no profits but that on the other hand, there were sums due him in addition to the amount sued for. The court did permit him to state that there was a sum due him in addition to the amount sued for but did not permit him to go into detail concerning items of accounting subsequent to the settlement in controversy. Clearly appellant was not prejudiced because of the exclusion of the evidence referred to since the court disregarded that claim of appellee altogether and instructed the jury to find for appellant unless the jury believed that the due bill or paper sued on was paid or satisfied at the time when the partnership made its final settlement with John Young, which was after the farm operation and accounts had ceased. Some other questions are argued by appellee but they are of minor importance and not of sufficient merit to warrant discussion. Judgment affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2897092/	NO. 07-07-0312-CV IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JUNE 24, 2008 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________ IN THE MATTER OF A.G.N., A CHILD _________________________________ FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY; SITTING AS A JUVENILE COURT NO. 9084-J#1; HONORABLE W. F. ROBERTS, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Â Â Â Â Â Â Â Â Â Â A.G.N., a juvenile, appeals an order of commitment to the Texas Youth Commission (âTYCâ). We agree with appointed counselâs conclusion the record fails to show any arguably meritorious issue which would support the appeal, and affirm the juvenile courtâs judgment. Â Â Â Â Â Â Â Â Â Â On June 22, 2007, A.G.N. was committed to TYC by indeterminate order modifying disposition. Tex. Fam. Code Ann. Â§ 54.05 (Vernon Supp. 2006). His trial counsel filed a notice of appeal on July 9, 2007, and was thereafter granted leave to withdraw from the representation. On August 7, 2007, the juvenile court denied the application of A.G.N.âs mother for court-appointed counsel. Finding no indication that A.G.N. subsequently received appointed or retained appellate counsel, we abated and remanded this cause to the juvenile court, in part, for a determination of whether A.G.N. was entitled to appointed counsel. Thereafter, counsel was appointed to represent appellant in this appeal. Â Â Â Â Â Â Â Â Â Â Appellant's appointed appellate counsel has filed a motion to withdraw and a brief in support pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re D.A.S., 973 S.W.2d 296 (Tex. 1998) (finding procedures enumerated in Anders apply to juvenile matters), in which he certifies that he has diligently reviewed the record and, in his professional opinion, under the controlling authorities and facts of the cases, there is no reversible error or legitimate grounds on which a non-frivolous appeal can arguably be predicated. The brief discusses in detail the procedural history, facts, and law applicable to this matter. Counsel also notes a potential issue on which error may lie but, with reference to supporting law, concludes the record does not support an appeal. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.â Waco 1994, pet. ref'd). By letter, this Court also notified appellantâs mother of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Neither appellant nor his mother have filed a response. Â Â Â Â Â Â Â Â Â Â Â In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.âSan Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the juvenile court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellate counsel points to one ground on which an arguably meritorious argument may lie on appeal. Counsel notes potential legal and factual insufficiency of the evidence to support the juvenile courtâs modification of its original disposition. After a complete review of the record, however, we agree with appellate counsel that the grounds identified do not arguably support an appeal. Â Â Â Â Â Â Â Â Â Â The evidence in the record demonstrates that appellant was originally adjudicated for aggravated sexual assault of a child and was placed on probation, subject to certain terms and conditions, including the successful completion of a program at a facility outside his home. Appellant was subsequently placed at Pegasus School, Inc. After appellant was unsuccessfully discharged from this facility, the State moved to modify the disposition. The record reflects that at the time of the disposition hearing, appellant was unable to abide by the rules in several facilities, even those of a highly structured nature. The record also shows that appellant lacked family support with regard to his treatment needs and appellantâs mother was uncooperative with efforts to place appellant in less restrictive environments. Â Â Â Â Â Â Â Â Â Â Juvenile courts are vested with broad discretion in determining the suitable disposition of children found to have engaged in delinquent conduct. In re E.R.L., 109 S.W.3d 123, 128 (Tex.App.âEl Paso 2003, no pet.); In re T.R.S., 115 S.W.3d 318, 320 (Tex.App.âTexarkana 2003, no pet.). This is particularly true in hearings to modify disposition. Id. An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial courtâs decision. In re E.R.L., 109 S.W.3d at 128. See also In re J.R.C., 236 S.W.3d 870, 875 (Tex.App.âTexarkana 2007, no pet.). Our review of the trial court is informed by the explicit considerations put forth in section 54.04(i) of the Family Code. See Tex. Fam. Code Ann. Â§ 54.04(i) (Vernon 2007). We note also that where the underlying offense was aggravated assault of a child, as here, commitment to TYC is authorized. Tex. Fam. Code Ann. Â§ 54.05(f) (Vernon 2007). The evidence in the record before us is sufficient to support the juvenile courtâs modification of the disposition order. Â Â Â Â Â Â Â Â Â Â Our review convinces us that appellate counsel conducted a complete review of the record for this cause. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal from the juvenile courtâs order modifying its original disposition. We agree the record presents no arguably meritorious grounds for review. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the juvenile court.Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Â Â er; page-break-after:avoid; mso-outline-level:2; font-size:13.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:"Times New Roman"; mso-bidi-font-family:"Times New Roman"; color:#4F81BD; mso-bidi-language:EN-US;} h3 {mso-style-noshow:yes; mso-style-priority:9; mso-style-qformat:yes; mso-style-link:"Heading 3 Char"; mso-style-next:Normal; margin-top:10.0pt; margin-right:0in; margin-bottom:0in; margin-left:0in; margin-bottom:.0001pt; line-height:115%; mso-pagination:widow-orphan lines-together; page-break-after:avoid; mso-outline-level:3; font-size:11.0pt; font-family:"Arial","sans-serif"; mso-fareast-font-family:"Times New Roman"; mso-bidi-font-family:"Times New Roman"; color:#4F81BD; mso-bidi-language:EN-US;} h4 {mso-style-noshow:yes; mso-style-priority:9; mso-style-qformat:yes; mso-style-link:"Heading 4 Char"; 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margin:1.0in 1.0in .7in 1.0in; mso-header-margin:.5in; mso-footer-margin:.4in; mso-title-page:yes; mso-footer:url("07-09-0119.CR%20opinion_files/header.htm") f3; mso-paper-source:0;} div.Section3 {page:Section3;} --> NO. 07-09-00119-CR, 07-09-00120-CR Â IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS Â AT AMARILLO Â PANEL E Â MAY 25, 2010 Â Â RYAN LANCE HUTTON, APPELLANT Â v. Â THE STATE OF TEXAS, APPELLEE Â Â FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; Â NO. 20,480-C, 20-481-C; HONORABLE ANA ESTEVEZ, JUDGE Â Â Before CAMPBELL and PIRTLE and BOYD, S.J.[1] Â Â OPINION Â Â Appellant Ryan Lance Hutton appeals from his convictions for the offenses of stalking and the resulting concurrent sentences of imprisonment for twenty years in the Institutional Division of the Texas Department of Criminal Justice.Â Via three issues, appellant contends a defect in the information affected his substantial rights and the evidence presented at trial was legally and factually insufficient to support his conviction.Â We will modify the judgments and as modified, affirm. Background In September 2008, appellant was charged by indictment with stalking two individuals on May 8 of that year.Â Appellant moved to quash the indictment, arguing the stalking statute makes it an offense to stalk a single victim on more than one occasion, not one victim on one occasion and another victim on another occasion as the indictment alleged.Â After a hearing, the court sustained that motion.Â Thereafter, the State filed separate felony complaints and informations alleging appellant stalked each victim on more than one occasion.[2]Â By joint motion of the parties, all of the pleadings filed in the original cause were transferred to the two newly-filed causes. In February 2009, a bench trial was held on the two newly-filed causes.Â At trial, each of the victims testified about the events that led to the stalking allegations against appellant.Â The first victim testified that about daybreak on the morning of May 8, 2008, she went running alone on a one-mile stretch of 45th Street in Amarillo. She testified that during a span of several minutes,[3] a man driving a Honda followed her.Â She said he more than once turned off of 45th Street into adjacent neighborhoods, but returned to follow her.Â Frightened after the Honda made a u-turn in the street behind her, she concentrated on the vehicleÂs license plate number and eventually ran to a convenience store.Â She gave the clerk a license plate number that later was traced to appellant and his four-door 1994 Honda. The victim identified appellant in a photo lineup as the person who followed her.[4]Â The second victim, a ten-year-old girl, also testified at trial.Â She testified that on the afternoon of May 8, she walked home from a nearby park and was followed by a man driving a car she thought was a blue Honda.Â After following her for something over a block, the man passed her, going out of her sight.Â Shortly after, the girl saw the car driving down her street.Â When she reached her house, the car was there and the driver asked her through the open car window if she would help him find his dog.Â After he asked the girl for help a second time, the man drove away when an adult opened the front door of the house.Â The adult called out to a neighbor who was backing out of his drive-way, asking that he follow the car.Â The girl testified she was nervous that the driver of the Honda was going to abduct her or hurt her when she realized the car was following her. The girl picked two photographs out of a police photo lineup, one of which was appellantÂs.Â The neighbor, who followed the car, saw the driver when the car made a u-turn and obtained the carÂs license plate number, also identified appellant in a photo lineup. Appellant testified on his own behalf at trial, stating he did not stalk either individual and had never seen them before trial.Â He also provided an alibi, telling the court he believed he loaned his car to a friend that day and stayed at his girlfriend=s house.Â Â Appellant=s girlfriend testified appellant was with her on May 8.Â AppellantÂs friend testified he did not see appellant that day and had never borrowed appellant=s car.Â The trial court found appellant guilty of each offense and sentenced him to imprisonment for a term of twenty years for each cause, to be served concurrently.Â This appeal followed. Defective Information Our stateÂs stalking statute, Penal Code section 42.072, provides: (a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that: (1) the actor knows or reasonably believes the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person's family or household; or (C) that an offense will be committed against the other person's property; (2) causes the other person or a member of the other person's family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person's property; and (3) would cause a reasonable person to fear: (A) bodily injury or death for himself or herself; (B) bodily injury or death for a member of the person's family or household; or (C) that an offense will be committed against the person's property. Tex. Penal Code Ann. ' 42.072 (Vernon 2003).Â All three of appellantÂs issues on appeal focus on the statuteÂs phrase Âon more than one occasion.Â In appellant=s first issue, he points out the language Aon more than one occasion@ was absent from the informations, and argues its absence affected his substantial rights.Â The State argues this issue is not preserved for our review, and we agree. Appellant did not object to the asserted defect in the informations prior to trial.Â A defendant forfeits the right to object to a defect of form or substance in an information if he does not object before the date trial commences. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005);[5] State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991).Â Accord Clements v. State, 19 S.W.3d 442 (Tex.App.BHouston [1st Dist.] 2000, no pet.) (finding similar contention waived for same reason).Â The information charging appellant with stalking the runner each contained a paragraph alleging appellant followed her on May 8, and a paragraph by which it was again Âfurther present[ed]Â that on May 8, he followed the runner.Â The information charging appellant with stalking the ten-year-old similarly contained two paragraphs, each alleging he followed the victim on May 8.Â Nonetheless, as noted, appellant contends on appeal the informations were deficient because they did not contain language alleging he followed the victims in violation of the statute on more than one occasion.Â Appellant filed a motion taking exception to the substance of the informations, but neither the motion nor appellantÂs argument to the trial court concerning it complained of omission of the phrase Aon more than one occasion.@ See Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005) (stating that when the grounds urged at trial do not comport with those urged on appeal, the latter have not been preserved for review); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.BAmarillo 2002, pet. ref=d) (noting same). Nothing is preserved for our review on the issue presented on appeal.Â We overrule appellant=s first issue. Legal and Factual Sufficiency In appellant=s second and third issues, he contends the evidence presented at trial was legally and factually insufficient to show he stalked the victims on more than one occasion.Â Instead, he argues, the evidence shows he encountered each victim only on one occasion, on May 8.Â The State argues the record supports appellant=s convictions because each time appellant drove out of sight and then returned to follow the victims on that day constituted a separate occasion as required by the statute.Â In reviewing issues of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found each element of the offense beyond a reasonable doubt.Â Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979).Â If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt of the defendant=s guilt, due process requires that we reverse and order a judgment of acquittal.Â Swearingen,Â 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L. Ed. 2d 791 (1993). Reviewing its factual sufficiency, we consider the evidence in a neutral light, favoring neither the State nor the defendant. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008).Â A factual sufficiency review considers whether the evidence supporting guilt, though legally sufficient, is so weak the finding seems clearly wrong and manifestly unjust, or evidence contrary to the finding is such that it is against the great weight and preponderance of the evidence.Â Grotti, 273 S.W.3d at 283; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006).Â The first victim, the runner, testified that about 6:40 a.m., during her run, she noticed a vehicle, a Honda, pull into a bank parking lot on 45th Street.Â She testified that as she Agot parallel with the vehicle the vehicle started moving with me as I was running.@Â The Honda then drove past the runner and turned south into the adjacent residential neighborhood.Â The runner lost sight of the vehicle for a short time.Â The Honda emerged from the neighborhood and drove very slowly by the runner.Â The Honda then turned north into the residential neighborhood to the north of 45th Street, causing the runner to lose sight of the Honda again. Each time the appellant would disappear from sight, the runner Abelieved that the stalking was over@ and Athen he would reappear.@ Shortly thereafter, the Honda passed the runner from behind and the driver looked at her as he drove by.Â The Honda turned into the first neighborhood again and the runner lost sight of the Honda a third time.Â The Honda came out of the neighborhood ahead of the runner, and turned in her direction.Â After driving past her, the Honda made a u-turn on 45th Street.Â The runner testified that by that time, she was fearful for her life and began to concentrate on memorizing the Honda=s license plate number.Â The Honda turned back into the neighborhood but quickly came back out.Â The runner began sprinting toward a convenience store.Â The next time the runner saw the Honda, it was sitting in the parking lot of a church on the south side of 45th Street. Â She Ajust ran as fast as I could and he started coming out of that parking lot, like speeding up and, you know, just almost, you know trying to scare me.Â You know, just scaring me.Â And I ran as fast as I could past it and . . . I ran into the [convenience store] parking lot.@Â As she ran into the store, the runner told the clerk someone was following her and to write down the license plate number she had memorized.[6]Â The Honda drove past the front doors of the convenience store, very slowly.Â The runner testified she saw the driver of the Honda was sitting very low in the seat of the car with the windows halfway down.Â She was able to see the driver from his mouth up to the top of his head. The ten-year-old victim testified that on May 8, she was at an Amarillo park playing ball with friends, some four blocks from her home.Â While walking home, she noticed a car she thought was a blue Honda. She saw that the driver was leaning Apretty far@ back in the seat. The car followed the girl for a while and then passed her, going out of her sight.Â She continued walking for another one to two blocks and turned onto her street.Â When she reached her house, the car [approached the girl] and the driver asked, through the car window, if she would help him find his dog.Â After the driver asked the girl for help a second time, an adult opened the front door of the house and asked who she was talking to. The driver drove away.Â The girl testified she got nervous that the driver of the Honda was going to abduct her or hurt her when she realized the car was following her. Both the girl and a neighbor later identified appellant in a photographic lineup as the person they saw that day.[7] To constitute the offense of stalking, our statute requires proof the defendant engaged in conduct Âon more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person . . . .ÂÂ Tex. Penal Code Ann. ' 42.072 (Vernon 2003).Â Guilt thus requires the finder of fact to find instances of prohibited conduct that are sufficiently related to be Âpursuant to the same scheme or course of conduct,Â but sufficiently discrete to constitute Âmore than one occasion.ÂÂ The statute does not define either phrase. Words in a statute are to be read in context and construed according to the rules of grammar and common usage. Tex. Gov't Code Ann. ' 311.011(a) (Vernon 2005); Tex. Penal Code Ann. ' 1.05(b) (Vernon 2003); Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.BAustin 1995, pet. ref=d). Undefined words in a statute are ordinarily given their plain meaning unless the statute shows that they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex.Crim.App.1988); State v. Wofford, 34 S.W.3d 671, 680 (Tex.App.BAustin 2000, no pet.). In construing the plain meaning of the language of a statute, courts may consult dictionary definitions. See Hansen v. State, 224 S.W.3d 325, 329 (Tex.App.ÂHouston [1st Dist.] 2006, pet. refÂd) (making use of dictionary definition of term in stalking statute); see generally Bingham v. State, 913 S.W.2d 208, 209â10 (Tex.Crim.App.1995).Â Arguing the evidence shows he followed each of the victims on May 8 on only one occasion, appellant points to cases in which Texas courts have applied our stalking statute.Â See Sawyer v. State, No. 12-07-00077-CR, 2008 Tex.App. LEXIS 1975, 2008 WL 726369 (Tex.App.BTyler, 2007, pet. dism=d); Hansen, 224 S.W.3d 325.Â Here, the events involving the runner that the State contends show appellant followed her on more than one occasion took place within minutes of each other, and along a stretch of street less than a mile in length.Â The elapsed time between the events involving the ten-year-old is less clear from the record but they similarly occurred within a relatively short span of time and within two residential blocks.Â Appellant is correct that Sawyer and Hansen involve stalking incidents occurring on different days, sometimes months apart, and at different locations.Â Sawyer, at 2-4; Hansen, 224 S.W.3d at 327.Â But neither opinion addresses the issue presented here, and we cannot agree they place boundaries on the usage of the word Âoccasion.Â Considering the plain meaning and common usage of the word Âoccasion,Â we find guidance in the dictionary entry defining the word as Âa time at which something happens: instance.ÂÂ Merriam-WebsterÂs Collegiate Dictionary 857-58 (11th ed.). The entry contains the synonyms ÂhappeningÂ and Âincident.Â Id.Â We see nothing in the plain meaning or common usage of the term ÂoccasionÂ to require the elapse of a particular or minimum interval of time for events to occur on Âmore than one occasion.Â [8]Â A fact finder could determine that all of appellantÂs conduct directed toward the runner on May 8 occurred on one occasion, and that his conduct on that day thus does not meet the terms of the stalking statute.Â But viewing the evidence in the light most favorable to the courtÂs conclusion, we think a finder of fact rationally also could see the sequence of events as including more than one occasion of following.Â Specifically, we think the trial court rationally could have viewed the runnerÂs testimony appellant made a u-turn and followed her as she ran in fear down the middle of the street spoke of one instance and her testimony that she next saw appellantÂs car in the church parking lot after which he drove behind her as she sprinted to the convenience store, as another instance.Â That appellant was out of the womanÂs sight for only a short time as she ran, likely under a minute, is not determinative.Â The evidence is legally sufficient to support appellantÂs conviction. Nor can we agree that the evidence supporting a conclusion appellant followed the runner on more than one occasion, viewed in the neutral light appropriate to a factual sufficiency review, is so weak that the conclusion seems clearly wrong and manifestly unjust, or that contrary evidence is such as to make the conclusion against the great weight and preponderance of the evidence.Â Accordingly, we find the evidence factually sufficient to support appellantÂs conviction. Applying the same analysis, the court rationally could have found appellantÂs conduct on the afternoon of the same day, involving the ten-year-old, also contravened the stalking statute.Â The girlÂs testimony spoke of her encounter with appellant during her walk home.Â He followed her in a way that caused her fear, then left her sight.Â Then, after she had walked a further distance and reached her house, she there encountered appellant a second time.Â A rational fact finder, viewing the evidence in the light most favorable to that conclusion, could have determined the second encounter, although occurring within two blocks and within a few minutes of the first, constituted a second occasion of following prohibited by the statute. See Hansen, 224 S.W.3d at 329.Â And we find the evidence supporting that conclusion, viewed in a neutral light, is neither so weak nor so contravened by contrary evidence as to be clearly wrong and manifestly unjust, or against the great weight and preponderance of the evidence.Â The evidence is both legally and factually sufficient to support appellantÂs conviction. We overrule appellantÂs second and third issues. Reformation of Judgments In our review of the record, it came to our attention that each of the judgments includes a clerical error. Page one of each judgment indicates appellant plead "guilty" to the offense.Â The reporter's record indicates appellant plead "not guilty" to each offense. This court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.--Dallas 1991, pet. ref'd). "The authority of an appellate court to reform an incorrect judgment is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Asberry, 813 S.W.2d at 529-30. Because the record unambiguously indicates appellant plead "not guilty" to each offense, we modify each judgment to correct the error. As modified, we affirm the judgments of the trial court. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Publish. [1] Â John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.Â [2]Â See Tex. Penal Code Ann. ' 42.072 (Vernon 2003).Â Appellant plead true to the enhancement paragraph set forth in each information, enhancing his maximum potential imprisonment from 10 years to 20 years.Â See Tex. Penal Code Ann. '' 12.32, 12.33 (Vernon 2003).Â 3 The victim testified she was running Âabout an 8-minute mileÂ pace.Â During cross-examination, the victim agreed appellant followed her for approximately six minutes. [4]Â The victim also identified the photograph of another individual as the person who followed her that day.Â Appellant does not challenge the evidence identifying him as the stalker, so we do not address it further. [5]Â Article 1.14(b) provides that A[i]f the defendant does not object to a defect, error or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding.@Â Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Â [6] The license number she gave the clerk was the same number the ten-year-old victimÂs neighbor gave police that afternoon.Â [7]Â The trial judge also heard from two other witnesses who testified to similar encounters in May 2008.Â One witness testified a young man in a bluish-gray, four-door Honda Accord repeatedly followed her while she was walking her dogs on May 11.Â The driver drove past her, pulled onto an adjacent street out of her sight, and returned to drive by her again and stare. This occurred about eight times and caused the witness to be concerned for her safety. The witness identified appellant in a photo lineup. The second witness, an eleven-year-old girl, testified to her repeated and fear-inducing encounters with a man driving a small blue car as she was riding her bike to a friend=s house on May 17.Â The driver once spoke to her through the carÂs passenger-side window.Â After fleeing down an alley only to encounter the car again at the end of the block, she ran into her friendÂs fenced back yard. Her friendÂs mother testified the girl was shaking and crying. The girl later picked appellant=s photograph out of a photo lineup.Â [8] See State v. Russell, 922 A.2d 191, 205 (Conn.App. 2007) (applying stalking statute requiring proof defendant ÂrepeatedlyÂ followed victim and noting statute Âcontains no explicit limitations as to the temporal interval between actsÂ); State v. Cummings, 701 A.2d 663, 679-80 (Conn.App. 1997) (rejecting challenge to jury instruction, applying term Ârepeatedly,Â stating that stateÂs stalking statute Âdoes not attempt to place the boundaries of time or space around a prescribed repetitive conductÂ and informing jury that was their function as finders of fact).	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/126924/	537 U.S. 1170 JINKSv.RICHLAND COUNTY, SOUTH CAROLINA, ET AL. No. 02-258. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA. 2 Sup. Ct. S. C. [Certiorari granted, ante, p. 972.] Motion of the Solicitor General for divided argument granted.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/4538743/	In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-264V (not to be published) ************************* NICOLE MOATS, * * Chief Special Master Corcoran * Petitioner, * Filed: May 5, 2020 * v. * * Attorney’s Fees and Costs. SECRETARY OF HEALTH * AND HUMAN SERVICES, * * * Respondent. * * ************************* Diana L. Stadelnikas, Maglio Christopher and Toale, PA, Sarasota, FL, for Petitioner. Adriana R. Teitel, U.S. Dep’t of Justice, Washington, DC, for Respondent. DECISION GRANTING FINAL AWARD OF ATTORNEY’S FEES AND COSTS1 On February 20, 2018, Nicole Moats filed a petition seeking compensation under the National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged she suffered from idiopathic thrombocytopenia purpura as a result of the influenza vaccine she received on October 7, 2016. Petition (ECF No. 1). On September 16, 2019, Petitioner filed a motion for a decision, and on October 9, 2019, I dismissed the petition for insufficient proof. ECF No. 26. 1 Although I have not designated this Decision for publication, it will be made available on the United States Court of Federal Claims’ website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from the public Decision. 2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”). Petitioner has now filed a motion requesting final attorney’s fees and costs, dated December 23, 2019 (ECF No. 31) (“Fees App.”). Petitioner requests a total award of $21,478.12 (representing $20,686.10 in fees, plus $792.02 in costs). Fees App. at 1. Pursuant to General Order No. 9, Petitioner warrants that she has not personally incurred any costs in pursuit of this litigation. ECF No. 41. Respondent reacted to the Fees Motion on January 2, 2020, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case, and deferring to my discretion to determine the amount to be awarded. Response, ECF No. 32, at 2-3. Petitioner filed a reply on January 8, 2020, reiterating her belief that the requested amount of fees and costs is reasonable. ECF No. 33. For the reasons set forth below, I hereby GRANT Petitioner’s motion, awarding final attorney’s fees and costs in the amount of $21,478.12. ANALYSIS I have in prior decisions set forth at length the criteria to be applied when determining if fees should be awarded for an unsuccessful claim. See, e.g., Allicock v. Sec’y of Health & Human Servs., No. 15-485V, 2016 WL 3571906, at 4-5 (Fed. Cl. Spec. Mstr. May 26, 2016), aff’d on other grounds, 128 Fed. Cl. 724 (2016); Gonzalez v. Sec’y of Health & Human Servs., No. 14- 1072V, 2015 WL 10435023, at 5-6 (Fed. Cl. Spec. Mstr. Nov. 10, 2015). In short, a petitioner can receive a fees award even if their claim fails, but to do so they must demonstrate the claim’s reasonable basis through some objective evidentiary showing and in light of the “totality of the circumstances.” The nature and extent of an attorney’s investigation into the claim’s underpinnings, both before and after filing, is a relevant consideration. Cortez v. Sec’y of Health & Human Servs., No. 09-176V, 2014 WL 1604002, at 6 (Fed. Cl. Spec. Mstr. Mar. 26, 2014); Di Roma v. Sec’y of Health & Human Servs., No. 90–3277V, 1993 WL 496981, at 2 (Fed. Cl. Spec. Mstr. Nov. 18, 1993) (citing Lamb v. Sec'y of Health & Human Servs., 24 Cl. Ct. 255, 258–59 (1991)). Although Petitioner was not successful in her claim, I do not doubt that the claim was filed in good faith. Additionally, I find that a reasonable basis existed for the filing of the petition. Respondent also has not argued that the claim lacked reasonable basis. Accordingly, a final award of attorneys’ fees and costs is appropriate. Determining the appropriate amount of that award is a two-part process. The first part involves application of the lodestar method – “multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Avera v. Sec'y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed. Cir. 2008) (quoting Blum v. Stenson, 465 U.S. 886, 888 2 (1984)).3 The second part involves adjusting the lodestar calculation up or down to take relevant factors into consideration. Avera, 515 F.3d at 1348. This standard for calculating a fee award is considered applicable in most cases where a fee award is authorized by federal statute. Hensley v. Eckerhart, 461 U.S. 424, 429-37 (1983). Petitioner requests the following rates for the work of her counsel, Ms. Diana Stadelnikas: $359.00 per hour for work performed in 2016, $372.00 per hour for work performed in in 2017, $396.00 per hour for work performed in 2018, and $415.00 per hour for work performed in 2019. Fees App. Ex. 1 at 11. These rates are consistent with what Ms. Stadelnikas has previously been awarded by me and other special masters for her work in the Vaccine Program, and they are reasonable for the work performed in the instant case. In addition, I have reviewed the billing entries and otherwise find them to be reasonable. The billing entries describe with sufficient detail the task being performed and the time spent on each task. Respondent has not identified any particular entries as objectionable and upon review, I did not find any entries to be objectionable either. Accordingly, Petitioner is entitled to a final award of attorney’s fees of $20,686.10. I will next turn to costs. Just as they are required to establish the reasonableness of requested fees, petitioners must also demonstrate that requested litigation costs are reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992); Presault v. United States, 52 Fed. Cl. 667, 670 (Fed. Cl. 2002). Reasonable costs include the costs of obtaining medical records and expert time incurred while working on a case. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at 16 (Fed. Cl. Spec. Mstr. Aug. 27, 2013). When petitioners fail to carry their burden, such as by not providing appropriate documentation to substantiate a requested cost, special masters have refrained from awarding compensation. See, e.g., Gardner-Cook v. Sec’y of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at 4 (Fed. Cl. Spec. Mstr. June 30, 2005). 3 An attorney's reasonable hourly rate is more precisely understood to be the “prevailing market rate” in the relevant forum. Avera, 515 F.3d at 1349; Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at *2 (Fed. Cl. Spec. Mstr. July 27, 2009), mot. for rev. denied, 91 Fed. Cl. 453 (2010), aff'd, 632 F.3d 1381 (Fed. Cir. 2011). That rate is in turn determined by the “forum rule,” which bases the award rate on rates paid to similarly qualified attorneys in the forum where the relevant court sits (Washington, D.C., for Vaccine Program cases). Avera, 515 F.3d at 1348. After the hourly rate is determined, the reasonableness of the total hours expended must be considered. Sabella, 86 Fed. Cl. at 205-06. This reasonableness inquiry involves consideration of the work performed on the matter, the skill and experience of the attorneys involved, and whether any waste or duplication of effort is evident. Hensley, 461 U.S. at 434, 437. In some cases, determining the proper hourly rate for a particular attorney requires consideration of whether there is a significant disparity between the forum rate applicable to the Vaccine Program generally and the geographic forum in which the attorney practices, in order to adjust the rate used for the lodestar calculation. Avera, 515 F.3d at 1349, (citing Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir. 1999) ). 3 Petitioner requests $792.02 in overall costs. Fees. App. Ex. 2 at 1. This amount is comprised of obtaining medical records, the filing fee, and postage. I have reviewed all of the requested costs and find them to be reasonable, and Petitioner has provided adequate documentation supporting them. Accordingly, Petitioner is entitled to the full amount of costs requested. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. 42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $21,478.12 as a lump sum in the form of a check jointly payable to Petitioner and her counsel, Ms. Diana Stadelnikas, Esq. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision.4 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 4	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/126940/	537 U.S. 1171 BIDEGARYv.UNITED STATES. No. 02-621. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari denied. Reported below: 39 Fed. Appx. 506.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3051936/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLISTON BASIN INTERSTATE  PIPELINE COMPANY, Plaintiff-Appellant, v. AN EXCLUSIVE GAS STORAGE LEASEHOLD AND EASEMENT IN THE CLOVERLY SUBTERRANEAN GEOLOGICAL FORMATION, INCLUDING No. 06-35660 BUT NOT LIMITED TO THE FORMATION BENEATH SECTION 35, T9S, R23E  D.C. No. CV-06-00010-RFC CARBON COUNTY, MONTANA, AND OPINION BENEATH SECTION 19, T58N, R99W PARK COUNTY, WYOMING, AND CERTAIN OIL OR GAS WELLS LOCATED THEREIN; HOWELL PETROLEUM CORPORATION; ANADARKO PETROLEUM CORPORATION, Defendants-Appellees.  Appeal from the United States District Court for the District of Montana Richard F. Cebull, District Judge, Presiding Argued and Submitted February 5, 2008—Seattle, Washington Filed May 9, 2008 Before: Raymond C. Fisher, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges. 5153 5154 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE Opinion by Judge Ikuta 5156 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE COUNSEL Robert T. Hall, III (argued) and Andrea Wolfman, Thelen Reid Brown Raysman & Steiner LLP, Washington, D.C., for the plaintiff-appellant. Jon Metropoulos and Dana L. Hupp, Gough, Shanahan, John- son & Waterman, Helena, Montana, for the plaintiff- appellant. W. Scott Mitchell and Jason S. Ritchie, Holland and Hart LLP, Billings, Montana, for the defendant-appellee. Patrick R. Day (argued), Holland and Hart LLP, Cheyenne, Wyoming, for the defendant-appellee. WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5157 OPINION IKUTA, Circuit Judge: Williston Basin Interstate Pipeline Company (Williston) claims that it has lost and is continuing to lose natural gas stored in its Elk Basin Storage Reservoir due to the operation of gas production wells owned by Howell Petroleum Corpora- tion and Anadarko Petroleum Corporation (Howell/ Anadarko). Two of those wells are located within the lateral boundaries of Williston’s storage reservoir, but are completed in geologic formations (the Morrison and Sundance forma- tions) below the geologic formation in which Williston stores its natural gas (the Cloverly formation). Williston brought an action in federal district court, seeking damages and injunc- tive relief pursuant to its state law claims of conversion and negligence and also seeking to condemn the two Howell/ Anadarko wells located within the lateral boundaries of the Elk Basin Storage Reservoir. The district court dismissed Williston’s action. In this appeal, we consider Williston’s arguments that the district court erred in dismissing Willis- ton’s complaint for lack of subject matter jurisdiction or for failure to state a claim under the Natural Gas Act (NGA), 15 U.S.C. §§ 717-717z. Williston contends that the district court erred in holding that Williston needed authorization from the Federal Energy Regulatory Commission (FERC) before it could condemn Howell/Anadarko’s wells, and therefore erred in dismissing Williston’s condemnation claim. Williston also contends that its state law claims raised a substantial federal question because they were aimed at enforcing a duty created by the NGA. We reject both of Williston’s arguments and affirm the district court. I Williston is an interstate natural gas pipeline company that delivers gas to a variety of customers in Montana, North Dakota, South Dakota and Wyoming. As part of its opera- 5158 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE tions, Williston stores gas in the Elk Basin Storage Reservoir within the Elk Basin Field, which is located in southern Mon- tana and northern Wyoming. The Elk Basin Storage Reservoir is located in an underground geological formation (the Cloverly formation) from which the producible natural gas has already been removed. Williston now uses this formation for storage and withdrawal of its stored natural gas, and has installed seven active injection/withdrawal wells in the reser- voir for this purpose. As an interstate natural gas company, Williston is subject to federal regulation. See 15 U.S.C. § 717(a), (b). The NGA authorizes FERC to regulate the “transportation of natural gas” in interstate commerce. See id. § 717(a); 42 U.S.C. § 7172(a). Williston’s gas storage facilities are regulated by FERC “since those facilities are a critical part of the transpor- tation of natural gas and sale for resale in interstate com- merce.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 308 (1988); see also 18 C.F.R. § 284.1(a) (providing that “[t]ransportation includes storage”). Under the NGA, a natu- ral gas company must obtain a certificate of public conve- nience and necessity (CPCN) from FERC before it can engage in the acquisition, construction, operation or extension of any facility. 15 U.S.C. § 717f(c)(1)(A). Natural gas compa- nies must operate their facilities in compliance with the terms and conditions set forth in their CPCN and in FERC regula- tions. See id. §§ 717(a), 717f(c)(1)(A), 717f(e). The Elk Basin Storage Reservoir was previously owned by Billings Gas Company (Billings). In 1949, FERC issued Bil- lings a CPCN to acquire and use the “Elk Basin Cloverly gas reservoir” for purposes of underground storage. Billings Gas Co., 8 F.P.C. 1166, 1166-67 (1949). The CPCN stated that the reservoir was “more fully described in the application in these proceedings and exhibits appended thereto.” Id. at 1167. Montana-Dakota Utilities Co. (Montana-Dakota) then acquired the reservoir and operated it until 1985, at which time FERC approved Williston’s application for a CPCN to WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5159 acquire and operate natural gas facilities including the Elk Basin Storage Reservoir. The CPCN noted again that the facilities were “more fully described in the application.” Wil- liston Basin Interstate Pipeline Co. & Montana-Dakota Utils. Co., 30 F.E.R.C. ¶ 61,143, 61,253 (1985). Billings, Montana-Dakota, and Williston operated the Elk Basin Storage Reservoir until 2002 without any notable inter- ference. During this period, Howell Petroleum Corporation owned leases and mineral interests in oil and gas producing formations in the Elk Basin Field. Problems began in 2002 when Anadarko Petroleum Corp., a corporation engaged in natural gas exploration and production, purchased all of How- ell’s stock. Soon after the stock purchase, Howell/Anadarko drilled several wells within the Elk Basin Field, including wells 19-1 and 195. Well 19-1 was completed in the Sun- dance formation and well 195 was completed in the Morrison and Sundance formations. Although the Morrison and Sun- dance formations are located below the Cloverly formation where Williston’s natural gas is stored, both wells are located within the lateral boundaries of the Elk Basin Storage Reser- voir and their well bores cross through the Cloverly formation to reach the lower geologic formations. On January 27, 2006, Williston filed a complaint in district court against Howell/Anadarko, alleging that “[d]efendants have caused and are causing the loss . . . of Williston’s stor- age gas.” Williston claimed it conducted an analysis of Elk Basin Storage Reservoir data which indicated that the loss of gas in Williston’s storage reservoir was directly correlated to increased production from Howell/Anadarko’s wells. The complaint asserted state law conversion and negligence claims and sought damages and injunctive relief. After Howell/Anadarko filed a motion to dismiss for lack of subject matter and diversity jurisdiction, Williston filed an amended complaint which added a claim for condemnation 5160 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE under Rule 71A of the Federal Rules of Civil Procedure.1 This amended complaint sought condemnation of wells 19-1 and 195 under the authority of Williston’s 1985 CPCN. Williston did not allege that its CPCN specifically described the prop- erty Williston sought to condemn, nor did Williston provide the district court with a copy of the map exhibits which accompanied its CPCN application, or with any other applica- tion materials depicting the lateral and vertical boundaries of the reservoir approved by FERC in the 1949 or 1985 order. In the absence of any FERC authorization to condemn the two wells, Howell/Anardarko argued, among other things, that Williston’s amended complaint failed to state a condemnation claim and that the court lacked subject matter jurisdiction over that claim. On July 14, 2006, the district court granted Howell/Anadarko’s motion to dismiss Williston’s federal claims and declined to exercise supplemental jurisdiction over the state law claims. II We first review Williston’s challenge to the district court’s dismissal of Williston’s condemnation claim. Because the dis- trict court’s order discussed only jurisdictional grounds for dismissal, it apparently dismissed Williston’s condemnation claim for lack of subject matter jurisdiction. However, the parties agree that the district court may have dismissed this claim for failure to state a claim. Because we can affirm the district court on any basis supported by the record, see Foster v. Wilson, 504 F.3d 1046, 1050 (9th Cir. 2007), we will con- sider both bases for dismissal. 1 At the time Williston filed its amended complaint, Rule 71A of the Federal Rules of Civil Procedure governed the procedure for the condem- nation of real and personal property in federal court. The rule was amended in 2007, and is now Rule 71.1 of the Federal Rules of Civil Pro- cedure. WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5161 A We first consider Williston’s argument that the district court could not dismiss Williston’s condemnation claim for lack of subject matter jurisdiction. As a general rule, when “[t]he question of jurisdiction and the merits of [the] action are intertwined,” dismissal for lack of subject matter jurisdic- tion is improper. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Such an intertwining of jurisdiction and merits may occur when a party’s right to recovery rests upon the interpretation of a federal statute that provides both the basis for the court’s subject matter jurisdic- tion and the plaintiff’s claim for relief. See id. (citing Sun Val- ley Gas., Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)). As the Court explained in Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998), “if ‘the right of the petition- ers to recover under their complaint will be sustained if the Constitution and laws of the United States are given one con- struction and will be defeated if they are given another,’ ” then the court has jurisdiction over the dispute, and cannot dismiss on jurisdictional grounds. Id. at 89 (quoting Bell v. Hood, 327 U.S. 678, 685 (1946)). There is an exception to this general rule, however: “a suit may sometimes be dis- missed for want 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 juris- diction or where such a claim is wholly insubstantial and friv- olous.” Bell, 327 U.S. at 682-83; see also Steel Co., 523 U.S. at 89. [1] Here the district court concluded that it lacked jurisdic- tion over Williston’s condemnation claim based on the court’s construction of two provisions of the NGA, 15 U.S.C. § 717f(h) and 15 U.S.C. § 717f(c)(1)(A), as read together.2 2 15 U.S.C. § 717f(h) states, in pertinent part: When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with 5162 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE Section 717f(h) states that in order to bring a condemnation claim the natural gas company must have a CPCN and the acquisition must be “necessary.” See § 717f(h) (permitting a condemnation action when a holder of a CPCN cannot acquire “the necessary right-of-way” required for its natural gas pipe lines, or “the necessary land or other property” required for pipeline operation facilities). Sec- tion 717f(c)(1)(A), in turn, precludes a natural gas company from acquiring or extending a facility without a CPCN from FERC “authorizing such acts or operations.” [2] According to the district court, in seeking to condemn wells 19-1 and 195, Williston was undertaking to extend its facilities. Pursuant to § 717f(c)(1)(A), a natural gas company may not extend its facilities without a CPCN authorizing the extension. Because FERC had not issued Williston a CPCN specifically authorizing an expansion of Williston’s facilities to include wells 19-1 and 195, the district court concluded it the owner of property to the compensation to be paid for, the nec- essary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the neces- sary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other sta- tions or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. 15 U.S.C. § 717f(c)(1)(A) states, in pertinent part: No natural-gas company or person which will be a natural-gas company upon completion of any proposed construction or exten- sion shall engage in the transportation or sale of natural gas, sub- ject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any such facilities or extensions thereof, unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations . . . . WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5163 lacked jurisdiction to entertain Williston’s condemnation claim. Williston does not contest the district court’s determination that Williston would need a CPCN specifically authorizing an extension of its facilities before Williston could undertake any such extension. However, Williston argues that it is not bring- ing its condemnation claim for the purpose of extending its facilities pursuant to § 717f(c)(1)(A). Rather, Williston con- tends that it is bringing its condemnation claim for the pur- pose of operating and maintaining its existing facilities. In other words, Williston asserts that loss of natural gas from the reservoir impairs its operations, and Williston needs to con- demn Howell/Anadarko’s wells in order to prevent further losses. Because Williston is not attempting to extend its stor- age capacity or otherwise extend its operations, Williston claims that the acquisition of the Howell/Anadarko wells would not constitute an “extension of . . . facilities” that would trigger the restrictions imposed by § 717f(c)(1)(A). Therefore, Williston contends it does not need a CPCN autho- rizing its acquisition of these wells. [3] Instead, Williston relies on § 717(h), which gives the holder of a CPCN the right to acquire a “right-of-way to . . . construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property . . . for the location of . . . stations or equipment necessary to the proper operation of such pipe line or pipe lines.” § 717(h) (emphasis added). This language, Williston argues, supports Williston’s position that its existing CPCN gives Williston the right to condemn property it needs for the operation and maintenance of its existing facilities without further authorization from FERC. [4] Williston’s argument required the district court to con- sider § 717f(c)(1)(A) and § 717f(h) and evaluate the merits of Williston’s proposed interpretation of these statutes. Because Williston’s right to proceed with its condemnation claim 5164 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE would be “sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another,” Steel Co., 523 U.S. at 89 (internal quota- tion marks omitted), dismissal for want of subject matter jurisdiction is improper. The Bell exception to this rule is inapplicable here. While the district court was correct to reject Williston’s interpreta- tion of § 717f(c)(1)(A) and § 717f(h), see infra at 5170, the interpretation itself has not been foreclosed by our precedent. See Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974). Moreover, despite Howell/Anadarko’s argument that Williston’s condemnation claim is facially defi- cient under Rule 71A, we cannot say the claim is so immate- rial, insubstantial, or frivolous on its face as to defeat federal jurisdiction. See Bell, 327 U.S. at 682-83; see also FED. R. CIV. P. 71A (2006) (current version at FED. R. CIV. P. 71.1 (2007)). B We nonetheless affirm the district court’s dismissal of Wil- liston’s condemnation claim on the ground that Williston’s complaint fails to state a claim upon which relief can be granted. See Foster, 504 F.3d at 1050; FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “[W]e may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice. We accept all factual allegations in the complaint as true and con- strue the pleadings in the light most favorable to the nonmov- ing party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007) (internal quotation marks and citation omitted). WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5165 Williston argues that it has stated a claim for relief under § 717f(h) by alleging that the property it seeks to condemn is necessary to the continued operation and maintenance of its existing facilities. Under Williston’s interpretation of § 717f(h) and § 717f(c)(1)(A), see supra at 5163, Williston is not seeking to extend its facilities, and thus can proceed with its condemnation claim without further authorization from FERC. Based on this interpretation, Williston contends that it has sufficiently stated a claim for relief, and the district court erred in dismissing its condemnation claim. Williston does not dispute that it would lack authority to condemn Howell/ Anadarko’s wells, and thus would not be able to state a claim for relief, if acquisition of those wells constituted an extension of Williston’s facilities. Therefore, our determination regard- ing whether dismissal was proper under Rule 12(b)(6) turns on our answer to the question whether Williston is seeking an “extension” of its facilities for purposes of § 717f(c)(1)(A). [5] We start with the plain language of the statute. Gwalt- ney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987). Although the NGA does not define what constitutes the “extension of any facilities,” see § 717f(c)(1)(A), the common usage of the word “extension” at the time the NGA was enacted would include an expansion of the physical boundaries of a facility by adding additional property.3 See WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 900 (2d ed. 1937) (defining “exten- sion” as “enlargement in dimension, area, duration, or 3 The phrase “extension of any facilities” in § 717f(c)(1)(A) first appeared in § 7(c) of the Natural Gas Act of 1938, Pub. L. No. 75-688, 52 Stat. 821 (1938), which provided: “No natural-gas company shall undertake the construction or extension of any facilities for the transporta- tion of natural gas . . . until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require such new construction or operation of any such facilities or extensions thereof . . . .” This section was amended in 1942 to its current form. See An Act to Amend Section 7 of the Natural Gas Act, Pub. L. No. 77-444, 56 Stat. 83, 83-84 (1942). 5166 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE scope”). Williston has not pointed to any language in the NGA or implementing regulations supporting Williston’s interpretation of the word “extension” as excluding the addi- tion of property in cases where such property is useful for a natural gas company’s operation or maintenance of its exist- ing facilities. [6] Rather, the structure of the NGA and its implementing regulations indicate that § 717(c)(1)(A) applies in every case where a natural gas company acquires additional property, even for operation and maintenance purposes. The NGA gives FERC “comprehensive authority” over the control of natural gas companies’ facilities. See Schneidewind, 485 U.S. at 308. “[A] natural gas company must obtain from FERC a ‘certifi- cate of public convenience and necessity’ before it . . . extends . . . any facility,” because FERC must first be assured that the project will be carried out “in compliance with” FERC’s rules and regulations, and that the project is “in accordance with the public interest.” Id. at 302-03. Allowing a natural gas company to condemn property beyond the scope of its CPCN whenever that property could be useful for the operation or maintenance of an existing facility would create a significant gap in FERC’s oversight of new projects and acquisitions, one of the principal goals of § 717f(c)(1)(a). See id. Moreover, it is inconsistent with a key Congressional goal in enacting the NGA, namely, to have FERC balance the com- peting public interests involved in a proposed project through the issuance of certificates of public convenience and neces- sity. See § 717f(e); Schneidewind, 485 U.S. at 300-04; see also Consol. Edison Co. of N.Y., Inc. v. F.E.R.C., 315 F.3d 316, 319 (D.C. Cir. 2003) (“FERC may authorize or certifi- cate any pipeline project that the agency determines is neces- sary or desirable in the public interest.”) (internal quotation marks omitted). [7] Moreover, Williston’s proposed interpretation of the word “extension” in § 717f(c)(1)(A) as excluding acquisitions of property useful for operation or maintenance is contrary to WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5167 FERC’s implementation of the NGA. FERC has consistently interpreted the NGA as requiring natural gas companies to obtain a CPCN before expanding a facility’s physical bounda- ries to include additional property, even when the natural gas company is undertaking such expansion for the purpose of establishing a buffer zone to prevent gas migration from an existing storage reservoir. In implementing the Congressional scheme, FERC has promulgated regulations to ensure that landowners will be informed of any proposed infringement of their property rights, and will have an opportunity to contest such proposed infringements, prior to condemnation proceed- ings. Thus the applicant for a CPCN is required to submit a complete map of the proposed project, 18 C.F.R. § 157.14(a)(6), and provide notification to all affected land- owners, id. § 157.6(d), including owners of property interests whose property “[i]s within the area of proposed new storage fields or proposed expansions of storage fields, including any applicable buffer zone.” Id. § 157.6(d)(2)(iv). The CPCN applicant must inform the landowner of its rights “at the Com- mission and in proceedings under the eminent domain rules of the relevant state.” Id. § 157.6(d)(3)(v). Landowners then have an opportunity to intervene and protest the proposed project. See id. § 157.10. Even when FERC provides a mecha- nism for giving qualifying natural gas companies advance approval to “acquire, construct, modify, replace, and operate facilities for the remediation and maintenance of an existing underground storage facility,” id. § 157.213(a), (b), FERC does not allow such qualifying companies to expand their storage facilities’ physical boundaries. Rather, natural gas companies may undertake the specified improvements with- out prior FERC authorization “provided the storage facility’s certificated physical parameters—including . . . reservoir and buffer boundaries . . . remain unchanged.” Id. These regula- tions, which provide multiple layers of protection for land- owners, are inconsistent with Williston’s proposed interpretation of the NGA as allowing a natural gas company 5168 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE to condemn property for operation or maintenance purposes without having to obtain FERC approval. ANR Pipeline Co., 76 F.E.R.C. ¶ 61,263 (1996), further sig- nals FERC’s rejection of an interpretation of the NGA that would allow natural gas companies to expand their storage facilities’ physical boundaries without FERC authorization. In ANR Pipeline Co., FERC considered an application by ANR, a natural gas company that sought to condemn property it deemed necessary to prevent migration of stored gas beyond its existing storage field boundary. 76 F.E.R.C. at ¶ 62,346. ANR sought a “revised, larger boundary” for its storage field in order “to acquire, through eminent domain if necessary, the property rights it needs to protect the stored gas.” Id. FERC described its role under § 7171f(c) as follows: Since ANR is an interstate natural gas pipeline engaged in the transportation of natural gas in inter- state commerce, it is subject to the jurisdiction of the Commission and to section 7(C) [15 U.S.C. § 717f(c)] of the NGA. Where appropriate, the Com- mission has granted jurisdictional storage field oper- ators amended certificate authority to revise their storage field boundaries in order to allow them to initiate condemnation procedures to seek storage easements that will allow for continued efficient operation of their certificated gas storage facilities. ANR Pipeline Co., 76 F.E.R.C. at ¶ 62,346. As indicated in ANR Pipeline Co., FERC must authorize natural gas compa- nies to seek condemnation of additional property needed for efficient operation, and will grant such authorization only where “appropriate” and “required by the public convenience and necessity.” Id. There would be no need for a natural gas company to apply to FERC for an amended authorization if it were free to condemn property required for efficient opera- tion or maintenance purposes without FERC approval. See id.; see also Trunkline LNG Co., 51 F.E.R.C. ¶ 61,202 (1990) WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5169 (determining that the acquisition of property for “dispersion exclusion zones,” constitutes an extension of the certificated facilities and requires pre-approval from FERC). The Sixth Circuit reached a similar conclusion in the lead- ing case of Columbia Gas Transmission Corp. v. An Exclusive Gas Storage Easement, 776 F.2d 125 (6th Cir. 1985). In that case, a natural gas company, Columbia, sought to condemn an easement for underground storage of natural gas in property that was one to two miles away from Columbia’s storage field. See id. at 125-26. Columbia possessed a 1953 CPCN which did not cover the property it sought to condemn, but Columbia argued that it did not need an amended CPCN because the property it sought to condemn contained gas that had migrated from Columbia’s gas storage reservoir and the easement was necessary to protect its certificated natural gas storage pool. See id. at 126. The district court had disagreed. Noting that a natural gas company’s certificated facilities were those described in the map attached to its application for a CPCN, Columbia Gas Transmission Corp. v. An Exclusive Gas Storage Easement, 578 F. Supp. 930, 934-35 (N.D. Ohio 1984); see 18 C.F.R. § 157.14(a)(6) (requiring the attachment of a detailed geo- graphical map to an application for a CPCN), the district court held that a CPCN holder’s power of eminent domain “extends only to the property located within the geographical area des- ignated on the map or maps attached to the application for the certificate of public convenience and necessity” as required by the FERC regulations. 578 F. Supp. at 932. The Sixth Cir- cuit affirmed the district court, ruling that § 717f(h) allowed Columbia to condemn the additional property, but only if it first “secure[d] a valid certificate of public convenience and necessity” encompassing that property. 776 F.2d at 128-29. See also B&J Oil & Gas v. Fed. Energy Reg. Comm’n, 353 F.3d 71, 73-74 (D.C. Cir. 2004) (noting FERC’s authority to enlarge a storage field boundary when expansion is necessary to preserve the integrity of the storage field); Tenn. Gas Pipe- 5170 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE line Co. v. 104 Acres of Land, 749 F. Supp. 427, 432 (D.R.I. 1990) (holding that a natural gas company was not entitled to expand the scope of an easement authorized by its CPCN without further authorization). Williston’s efforts to distinguish Columbia Gas are unavailing. Williston notes that Howell/Anadarko’s wells are drilled through the Elk Basin Storage Reservoir and are within the lateral boundaries of Williston’s storage facility, while in Columbia Gas the wells were drilled in areas beyond the lateral boundaries of the natural gas company’s facility. However, § 717f(c) and 717f(h) make no distinction between extensions to property interests outside the lateral boundaries of a certificated facility and those outside the vertical bounda- ries of a certificated facility. Columbia, like Williston, was attempting to use a condemnation action to stop a third party from engaging in gas production operations that were alleg- edly capturing gas from Columbia’s storage pool, and the Sixth Circuit held that the NGA required Columbia to first obtain an amended CPCN. The fact that Williston’s condem- nation action is aimed at stopping the production of gas in a lower geologic formation is not material. Williston is seeking to acquire property that belongs to another party, the acquisi- tion of which has not been specifically authorized by FERC. [8] Because Williston’s strained interpretation of the word “extension” is inconsistent with the structure and logic of the NGA and with FERC regulations, we agree with the Sixth Circuit that a natural gas company may not condemn addi- tional property that is not specifically described in its existing CPCN, even if the natural gas company seeks to acquire such property in order to operate and maintain an existing storage facility. In the typical case, the property covered by the exist- ing CPCN will be specifically designated in the map exhibits attached to the application for the CPCN pursuant to 18 C.F.R. § 157.14(a)(6). Williston does not dispute that the facility described in Williston’s application for a CPCN does not include Howell/Anadarko’s leasehold interests in the two WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5171 wells completed in the Sundance and Morrison formations. Therefore, Williston’s CPCN provided no basis for a condem- nation order under § 717f(h). Accordingly, Williston’s amended complaint failed to “state a claim to relief that is plausible on its face,” Twombly, 127 S. Ct. at 1974, and the district court did not err in dismissing the complaint. The district court also acted well within its discretion in declining to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c) (“The district court may decline to exercise supplemental jurisdic- tion over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction . . . .”); see also Foster, 504 F.3d at 1051-52 (holding that the “decision whether to continue to exercise supplemental jurisdiction over state law claims after all federal claims have been dismissed lies within the district court’s discretion”). III We next turn to Williston’s argument that the district court erred in holding that it lacked federal subject matter jurisdic- tion over Williston’s state law claims. Williston argues that it does not need to rely on supplemental federal jurisdiction over its state law claims, because the state law claims them- selves invoke federal subject matter jurisdiction under 28 U.S.C. § 1331 and 15 U.S.C. § 717u. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Section 1331 provides: “The district courts shall have original jurisdiction of all civil actions arising under the Con- stitution, laws, or treaties of the United States.” Section 717u provides, in relevant part: The District Courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chap- ter or the rules, regulations, and orders thereunder, 5172 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, reg- ulation, or order thereunder. [9] While § 717u does not expressly limit its jurisdictional grant to cases “arising under the Natural Gas Act,” thereby paralleling the statutory language in § 1331, the Court has held that “[s]uch limitation is clearly implied.” See Pan Am. Petroleum Corp. v. Superior Court, 366 U.S. 656, 665 n.2 (1961). The Court has consistently interpreted jurisdictional stat- utes with an “arising under” qualification, like 28 U.S.C. § 1331 and 15 U.S.C. § 717u, as “giv[ing] the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded com- plaint establishes either that [1] federal law creates the cause of action or that [2] the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). The second basis for jurisdiction arises when a federal court determines that “a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable, 545 U.S. at 314. We first consider the argument that the district court had jurisdiction over Williston’s state law claims under § 717u. Our cases have interpreted jurisdictional provisions substan- tially identical to § 717u, namely 15 U.S.C. § 78aa and 16 U.S.C. § 825p,4 as giving federal courts jurisdiction over state 4 15 U.S.C. § 78aa provides, in pertinent part: The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5173 law claims brought to enforce federal obligations. See Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838-43 (9th Cir. 2004) (holding that 16 U.S.C. § 825p provided a basis for subject matter jurisdiction over a state common law claim predicated on a violation of a FERC tariff); Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, 159 F.3d 1209, 1211-12 (9th Cir. 1998) (holding that 15 U.S.C. § 78aa provided a basis for subject matter jurisdiction over a state common law claim predicated on a violation of federal securities law). Williston argues that Lockyer and Sparta are controlling in this case and require us to hold that § 717u gave the district court jurisdiction over Williston’s state law claims to enforce a duty created by the NGA. Williston characterizes its claims as follows: Williston has a duty to operate the Elk Basin Stor- age reservoir pursuant to its CPCN, and in accordance with the Natural Gas Act and FERC regulations. Williston’s con- version and trespass claims, and its associated request for injunctive relief, are intended to prevent Howell/Anadarko from taking actions that interfere with Williston’s compliance with these federal legal requirements. Because § 717u gives a district court jurisdiction over any action “to enforce any lia- bility or duty created by” the NGA and associated rules and regulations, Williston contends that the district court had of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations there- under. 16 U.S.C. § 825p provides, in pertinent part: The District Courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder. 5174 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE jurisdiction to grant an injunction to prevent Howell/ Anadarko from taking actions that could threaten Williston’s ability to perform its duties under the NGA. [10] This argument is meritless. Unlike the state law claims at issue in Lockyer and Sparta, Williston’s state law claims do not fall within the relevant exclusive jurisdiction provision. Section 717u does not provide federal jurisdiction for a state law claim against a party whose obligations or duties under the NGA are not at issue. See § 717u (giving a court jurisdic- tion “to enforce any liability or duty created by, or to enjoin any violation of, this chapter [NGA] or any rule, regulation, or order thereunder.”). Williston has not identified any obliga- tion imposed on Howell/Anadarko by the NGA. Indeed, Con- gress has excluded natural gas production and gathering operations, the very operations Howell/Anadarko is undertak- ing in the Elk Basin field, from the scope of the NGA. See 15 U.S.C. § 717(b) (the provisions of the NGA are not applicable to “the production or gathering of natural gas”); see also Fed. Power Comm’n v. Panhandle E. Pipe Line Co., 337 U.S. 498, 509-13 (1949) (holding that § 717(b) precluded FERC from regulating an activity excluded from the NGA under that pro- vision, even when the activity would negatively impact a nat- ural gas company’s ability to fulfill its duties and obligations under the NGA). By contrast, the plaintiffs in Lockyer and Sparta were attempting to enforce the defendants’ obligations under federal law. See Lockyer, 375 F.3d at 841 (holding that federal jurisdiction existed under 16 U.S.C. § 825p when “[t]he state lawsuit turns, entirely, upon the defendant’s com- pliance with a federal regulation”); Sparta, 159 F.3d at 1212 (holding that federal jurisdiction existed under 15 U.S.C. § 78aa where plaintiff’s state law claims were founded on the propriety of defendants’ federally regulated conduct). Because resolution of plaintiffs’ state law claims in both Lockyer and Sparta required us to determine whether defen- dants had complied with rules that had the effect and force of federal law, we determined that we had jurisdiction under § 825p and § 78aa, respectively. WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE 5175 Williston argues that federal courts have jurisdiction to ensure compliance with the NGA in the face of third party threats, even when those threats are excluded from regulation under § 717(b) of the NGA. To support this theory, Williston cites Columbia Gas Transmission Corp. v. Burke, 768 F. Supp. 1167, 1170-71 (N.D. W. Va. 1990), in which a district court held it had subject matter jurisdiction over a natural gas company’s state law trespass action based in part on the impact the trespass would have on the company’s ability to comply with the NGA. We disagree with this conclusion to the extent the district court’s assertion of federal jurisdiction was based on the natural gas company’s own duty to comply with the NGA, rather than on enforcing the defendant’s obli- gations under the NGA. The NGA does not authorize a fed- eral court to enjoin non-regulated activities that interfere with a regulated company’s operations. See 15 U.S.C. § 717u. Therefore, Williston’s reliance on Burke is unavailing. [11] Because Williston is not trying to enforce the defendants-appellees’ obligations under the NGA, its claims do not fall within § 717u and do not invoke the federal courts’ exclusive jurisdiction. Therefore, we reject Williston’s argu- ment that Lockyer and Sparta are controlling. [12] Finally, we consider whether Williston has otherwise established that its state law claims arise under federal law. As noted in Grable, in order for a state law claim to provide a basis for federal jurisdiction, the state claim must “turn on substantial questions of federal law,” and “really and substan- tially involv[e] a dispute or controversy respecting the valid- ity, construction or effect of [federal] law.” 545 U.S. at 312- 313 (internal quotation marks omitted; alterations in original). In Grable, the Court determined it had federal jurisdiction over a state claim where “the meaning of the federal statute” was an essential element of a state quiet title action, “and the meaning of the federal statute [wa]s actually in dispute.” Id. at 315. Here, we cannot say that a court would need to resolve a disputed provision of the NGA in order to resolve Willis- 5176 WILLISTON BASIN v. AN EXCLUSIVE GAS STORAGE ton’s state law conversion or negligence claims, because no provision of the NGA constitutes an essential element of those claims. In sum, Williston has not identified a “substan- tial question[ ] of federal law” upon which its state law negli- gence and conversion claims would turn. Id. at 312. Therefore, the federal courts have no jurisdiction over such claims. IV In conclusion, we affirm the district court’s dismissal of Williston’s condemnation claim on the ground that it failed to state a claim, and hold that the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claims. We also affirm the district court’s dismissal of Williston’s state law claims for lack of subject matter jurisdiction. AFFIRMED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3051957/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DUSTIN VADE MILLER,  Petitioner-Appellant, No. 06-36090 v. SHARON BLACKETTER,  D.C. No. CV-05-00267-PA Superintendent, Eastern Oregon OPINION Correctional Institution, Respondent-Appellee.  Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding Argued and Submitted December 4, 2007—Portland, Oregon Filed May 12, 2008 Before: Diarmuid F. O’Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge O’Scannlain 5273 MILLER v. BLACKETTER 5275 COUNSEL Kristina Hellman, Assistant Federal Public Defender, Port- land, Oregon, argued the cause for the petitioner-appellant and filed a brief; Patrick J. Ehlers, Assistant Federal Public Defender, Portland, Oregon, also filed a brief. Carolyn Alexander, Assistant Attorney General, State of Ore- gon, Salem, Oregon, argued the cause for the respondent- 5276 MILLER v. BLACKETTER appellee and filed a brief; Mary H. Williams, Solicitor Gen- eral, and Hardy Myers, Attorney General, State of Oregon, Salem, Oregon, were on the brief. OPINION O’SCANNLAIN, Circuit Judge: We are called upon to decide whether a defendant, whose attorney moved on the morning of trial to withdraw from the case and to postpone proceedings, was denied his right to the counsel of his choice when the trial judge denied the motions. I A Thirty-four-year-old Dustin Vade Miller, unarmed but pur- porting to be holding a gun, robbed several small retail estab- lishments over a ten-day period in 1998. He was apprehended by police, fought back, and later confessed to the crimes. Mil- ler was charged in Lane County, Oregon, with several counts of robbery, assaulting a public safety officer, and resisting arrest. He pled not guilty to all counts and Janise Augur, of the Lane County Public Defender’s Office, was appointed to represent him. Trial was scheduled, but was continued for thirty days upon Augur’s motion because she had not yet received a tape of Miller’s confession from the State. During this period, Augur and the State attempted to negotiate a plea agreement, but never agreed to the terms. On the evening before trial, Miller left a telephone message on Augur’s home answering machine stating that he was no longer comfortable with her representation and that he wanted a new lawyer. In response, Augur filed motions the next morning to withdraw as Miller’s counsel and to postpone trial. MILLER v. BLACKETTER 5277 Oregon Circuit Judge Lyle C. Velure immediately held a pro- ceeding in open court to consider the motions, with Miller present. Augur spoke first and explained that Miller’s father (“Mr. Miller”) had told his son the day before that he would be willing to pay for private representation. In addition, Augur described Miller’s phone call and stated that he had become unwilling to communicate with her further about the case. Given these developments, she told the judge that she felt she could no longer effectively represent Miller. Finally, Augur speculated that a new attorney could be ready to try the case “within a month,” but conceded that Miller had not yet retained a new attorney. The prosecutor objected to postponement, arguing that the State was ready to proceed and that all of its witnesses were present at the courthouse that morning. Further, the prosecutor characterized Augur as competent and able counsel, noting that she had actively attempted to negotiate a plea on Miller’s behalf and that she had recently filed a pretrial motion to sup- press Miller’s confession. The prosecutor also argued that the motions made that morning were simply Miller’s attempt to delay trial and to pressure the State into a more favorable plea agreement than it had offered previously. The trial judge then expressed his view that Augur was “one of the most competent criminal defense attorneys in the county” and also noted that one continuance had already been granted.1 The judge then heard from Miller, who alleged that Augur had not met with him until two days before trial, leav- ing him “completely in the dark” regarding the status of his case. Miller went on to contend that Augur “had no defense prepared,” specifically noting that she had not arranged for 1 The parties dispute whether this initial continuance, due to the non- delivery of evidence, was caused by the State’s negligence or Augur’s, and the record is silent on this point. Still, because this was the trial judge’s sole reference to the continuance, we do not view it as a material factor in his ruling on the motions. 5278 MILLER v. BLACKETTER any witnesses to testify on his behalf. In response to the trial judge’s questions, however, Miller acknowledged that Augur had met with him on each of the two previous days and con- ceded that he never informed her of any witnesses who could testify on his behalf. Judge Velure also allowed Miller’s father to address the court. Mr. Miller explained his belated willingness to pay for private counsel by noting that his son had informed him of the potential length of his sentence only during a phone conversa- tion the night before. Although Mr. Miller had previously decided to stay out of his son’s legal troubles, he explained that he felt compelled to intervene once he learned of the “to- tally ridiculous, ridiculous” amount of prison time Miller was facing. Mr. Miller informed the court that he hoped to hire an attorney who could “talk candidly” and be “available to me,” and that he had a particular attorney in mind, Fred Hartstrom, a friend from “many years back.” When asked, Mr. Miller stated that he had not yet been able to reach Hartstrom, but that he had “made the call” that morning. After his father spoke, Miller reiterated his complaints about Augur’s preparation, and Augur reiterated her belief that Miller would not cooperate with her. The trial judge then took a ten-minute recess, during which he reviewed Augur’s pretrial motion to suppress Miller’s confession. Upon his return, the judge denied Augur’s motions to withdraw and to continue trial, emphasizing his reluctance to encourage crimi- nal defendants in filing last-minute motions to fire their law- yers. He also found Miller’s allegations that Augur was unprepared unfounded, noting specifically that her pretrial motion was “appropriately prepared and appropriately formed.” Nevertheless, in response to Miller’s concerns, the trial judge decided to delay opening statements from the cur- rent date, a Friday, until the following Tuesday, giving Augur and Miller the intervening time to work together on his defense. In addition, the judge emphasized to Miller that he would be “extremely liberal” in construing procedural rules in MILLER v. BLACKETTER 5279 Miller’s favor and that he would permit Augur to introduce any witnesses or evidence Miller revealed to her, even if Augur had not previously supplied such information to the prosecution. Augur renewed her motion to withdraw, which was again denied. Next, Mr. Miller addressed the court, stating that while he had “no problem” with the ruling, which was “good enough and fair enough,” he remained “really frightened” by the expected sentence. The trial judge assured Mr. Miller that he would ensure that his son would be “fairly and adequately represented” and emphasized that Miller needed to take advantage of the short delay the judge had provided to com- municate with his attorney. Later, in exchange for the State’s promise to recommend a reduced sentence, Miller waived his right to a jury trial and agreed to a stipulated facts trial. The trial judge found Miller guilty on all counts and imposed a 210-month sentence, con- sistent with the State’s recommendation. B Miller directly appealed his convictions to the Oregon Court of Appeals, which affirmed without opinion, and the Oregon Supreme Court denied review. Next, Miller filed for post conviction relief in Oregon state court, but the court denied the petition in its entirety. Again, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. On February 5, 2005, Miller filed a pro se petition for a writ of habeas corpus in the United States District Court for the District of Oregon. The district court construed all of Mil- ler’s claims as waived except his contention that the trial judge violated his Sixth Amendment rights by denying Augur’s motions to withdraw and to postpone trial. The dis- trict court denied the petition, concluding that no clearly 5280 MILLER v. BLACKETTER established federal law provided that (1) the trial judge’s deci- sion was a denial of Miller’s right to counsel of choice, or that (2) the trial judge’s inquiry into the breakdown in Miller and Augur’s relationship deprived him of the effective assistance of counsel. Miller timely filed this appeal, challenging only the first of the district court’s determinations.) II Miller’s sole claim on appeal is that the state trial judge’s denial of Augur’s motions to withdraw and to postpone vio- lated his right to the counsel of his choice. At the outset, we emphasize that because the question has not been preserved, we do not consider whether the deterioration in Miller and Augur’s relationship prevented the effective assistance of counsel. Instead, our inquiry is limited to the narrower ques- tion of whether the trial judge’s denial of Augur’s motions deprived Miller of his right to choice of counsel. A Miller’s claim is governed by the Antiterrorism and Effec- tive Death Penalty Act of 1996, which limits relief in cases such as this to situations in which the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see Wil- liams v. Taylor, 529 U.S. 362, 407-09 (2000). Thus, to deter- mine whether Miller is entitled to habeas relief, we first consider the Supreme Court precedent in existence at the time of the trial judge’s decision that applies to Miller’s claim. Second, we consider whether the trial judge’s decision was contrary to or involved an unreasonable application of that pre- cedent.2 As the Supreme Court recently emphasized in Carey 2 In reviewing a petition for habeas, we look to “the last reasoned state- court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). Because the Oregon appellate courts summarily affirmed Miller’s convic- tions and summarily denied his petition for post-conviction relief, the trial judge’s decision to deny the motions is the proper focus of our analysis. MILLER v. BLACKETTER 5281 v. Musladin, 127 S. Ct. 649 (2006), only the “holdings, as opposed to the dicta, of [the] Court’s decisions” are relevant to this analysis. Id. at 653 (internal quotation marks omitted). B [1] The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. This right “guarantees a defendant the right to be repre- sented by an otherwise qualified attorney whom that defen- dant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drys- dale, Chartered v. United States, 491 U.S. 617, 624-25 (1989); see also Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.”). In addition, a defen- dant who establishes that his right to counsel of choice was violated need not demonstrate prejudice in order to be entitled to relief, as a defendant claiming ineffective assistance of counsel is required to do. United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2562 (2006) (explaining that once the right to counsel of choice is violated, “[n]o additional showing of prejudice is required to make the violation ‘complete.’ ”). [2] The Supreme Court has emphasized, however, that the right to counsel of choice is “circumscribed in several impor- tant respects.” Wheat v. United States, 486 U.S. 153, 159 (1988). Indeed, there are four specific situations in which the Sixth Amendment does not entitle a defendant to preferred counsel: A defendant does not have the right to be represented by (1) an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant; (3) an attorney with a con- flict of interest; or (4) an advocate (other than himself) who is not a member of the bar. Id. In addition, the Court has established that a trial court requires “wide latitude in balanc- ing the right to counsel of choice against the needs of fairness, 5282 MILLER v. BLACKETTER and against the demands of its calendar.” Gonzalez-Lopez, 126 S. Ct. at 2565-66 (citation omitted). As such, trial courts retain the discretion to “make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel.” Id. at 2566. With these principles set forth, we turn to the question of whether the trial judge’s decision to deny Augur’s motions to withdraw and to continue the trial date either contradicted or unreasonably applied their commands.3 C It is clear that the trial judge’s decision was not contrary to clearly established Supreme Court precedent, as the Court has never considered a case involving facts sufficiently similar to those presented here to be controlling, nor did the trial judge apply a rule which contradicted the Court’s instructions. See Williams, 529 U.S. at 405-06 (explaining that a state court’s decision will be “contrary to” clearly established federal law where the state court “applies a rule that contradicts the gov- erning law” set forth by the Supreme Court or where it “con- fronts a set of facts that are materially indistinguishable” from one of the Court’s decisions and nevertheless arrives at a dif- ferent result). Still, a state court may unreasonably apply clearly established federal law where it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407. Thus, we consider whether the trial judge’s decision was an unreasonable exercise of its discre- 3 We reject Miller’s suggestion that the district court deemed his Sixth Amendment claim waived. While the district court noted that Miller “may have waived” his right to counsel of choice, it expressly stated that it would treat the claim as preserved and proceeded to assess the merits of Miller’s petition at length in a reasoned decision. It is that decision which we review here. MILLER v. BLACKETTER 5283 tion to balance Miller’s right to his chosen counsel against concerns of fairness and scheduling. See Gonzalez-Lopez, 126 S. Ct. at 2565-66. We identify three factors as particularly rel- evant to the trial court’s decision.4 1 [3] First, at the time Augur moved to withdraw and to post- pone trial, Miller had not yet retained another attorney to take her place. In Gonzalez-Lopez, the Supreme Court accepted the government’s concession that a trial court wrongfully denied a defendant the right to counsel of choice where the court refused to grant pro hac vice admission to an attorney the defendant hired who was willing and prepared to begin repre- sentation immediately. 126 S. Ct. at 2560-61. Similarly, in Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2007) (en banc) (plurality), we held that a state trial court violated a habeas petitioner’s right to counsel of choice when it denied her motion to replace appointed counsel with retained counsel who “assured [the court] that he would be ready by the date appointed for trial.” Id. at 1096; see id. at 1102 (Clifton, J., concurring in the judgment). [4] In this case, however, Miller sought a thirty-day contin- uance during which he hoped to search for and to retain a new lawyer with the funds his father had belatedly offered to pro- vide. At the time of the motions, no such attorney had been retained. While Miller’s father had placed a call to Hartstrom, there was nothing to suggest that Hartstrom would be willing 4 Both Miller and the State devote significant attention to the procedural adjustments the trial judge made in response to Miller’s dissatisfaction with Augur, specifically his decisions to postpone opening statements from Friday to Tuesday, to allow Augur to introduce evidence not dis- closed during discovery, and to be “exceedingly liberal” in construing pro- cedural rules in Miller’s favor. While such remedies are relevant to a claim of ineffective assistance of counsel, Gonzalez-Lopez instructs that they are irrelevant to a claim for denial of counsel of choice. See 126 S. Ct. at 2562. 5284 MILLER v. BLACKETTER or available to take Miller’s case. Moreover, it was unclear how much time a new attorney, once hired, would have needed to prepare for Miller’s trial. Although Augur specu- lated that preparation would take approximately one month, other commitments in the new attorney’s schedule may have made such a timeline unrealistic. 2 [5] Second, the trial judge reasonably concluded that Augur was sufficiently prepared for trial. Under our precedents, the trial judge had a duty to inquire into the problems between Augur and Miller when they were first raised.5 Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) (citing Schell v. Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000) (en banc)). The judge conducted such an inquiry, affording both Miller and Augur an opportunity to explain the cause of Mil- ler’s dissatisfaction. Miller’s sole contention was that Augur was unprepared for trial, having not met with him until two days before and having prepared no witnesses to testify. Yet upon the judge’s questioning, Miller acknowledged that Augur had met with him on both of the two prior days and that he never furnished Augur with the names of any potential witnesses. In addition, while Augur expressed concerns about her ability to represent Miller in light of his refusal to cooper- ate, she never indicated that she was unprepared to try the case. Finally, the prosecution described Augur’s active attempt to negotiate a plea agreement on Miller’s behalf and the judge examined Augur’s pretrial motion to exclude Mil- ler’s confession, finding it to be appropriately prepared. 5 Miller contends that the trial judge was required to conduct an ex parte hearing on the motions. We disagree. We have approved of such devices where a defendant alleges that his attorney has a conflict of interest. See United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001); United States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998). But in this case, Miller’s only contention was that Augur was unprepared. Because the trial judge’s inquiry and firsthand observation was sufficient to establish that Augur was prepared to begin trial, an ex parte hearing was not required. MILLER v. BLACKETTER 5285 In our view, this information provided the trial judge with reasonable grounds on which to conclude that Augur was pre- pared to try the case that morning, as scheduled. While we do not address the question of whether an irreconcilable conflict existed between Miller and Augur, see supra at 5280, we note that “we are not aware of any [Supreme Court precedent] that stands for the proposition that the Sixth Amendment is vio- lated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust.” Plumlee, 512 F.3d at 1211. 3 [6] Third, we consider the timing of Augur’s motions to withdraw and to postpone trial. Miller was indicted sixty- eight days before trial, and we are satisfied that such time pro- vided him with ample opportunity to arrange for an alterna- tive to court-appointed counsel by whatever means he saw fit, including by seeking his father’s financial assistance. The fact that Mr. Miller’s generosity was not prompted until the eve of trial in no way suggests that the court denied Miller a full and fair opportunity to seek the counsel of his choice. In any event, we reject Miller’s suggestion that the Sixth Amend- ment entitled him to a fair opportunity to seek the counsel of his choice starting at the moment when his father offered to pay for private representation. Moreover, we note that Miller’s attorney did not move to withdraw and to continue the trial date until the morning trial was set to begin. The Supreme Court has held that “only [a trial court’s] unreasoning and arbitrary ‘insistence upon expe- ditiousness in the face of a justifiable request for delay’ ” vio- lates the Sixth Amendment, Morris v. Slappy, 461 U.S. 1, 11- 12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)), and has emphasized the timing of the defendant’s motion in analyzing such trial court decisions. 5286 MILLER v. BLACKETTER [7] In Wheat, the defendant moved to substitute his attorney only two court days before trial. 486 U.S. at 157. The Supreme Court held that the trial court did not abuse its dis- cretion in denying the motion, concluding that “with the motion for substitution of counsel made so close to the time of trial,” the trial court properly relied on “instinct and judg- ment” and did not exceed its “broad latitude.” Id. at 163. Sim- ilarly, in Morris, the Court held that the trial court did not violate the defendant’s Sixth Amendment rights in denying his motion for a continuance until the public defender initially assigned to his case was to be available. 461 U.S. at 12. In that case, the defendant’s public defender was hospitalized and replaced by another public defender six days before trial. Id. at 5. The trial court found the new attorney was prepared and trial began on schedule. Id. at 6. The defendant did not move for a continuance until the first day of trial, and the Supreme Court held that the trial court was “abundantly justi- fied” in denying the motion, noting the trial court could have reasonably construed the defendant’s “belated request[ ]” as a “transparent ploy for delay.” Id. at 13. [8] Here, Miller did not express any dissatisfaction with Augur’s representation until the day his father offered to pay for a private attorney, and the trial judge was not presented with the motions until the next morning, the morning trial was set to begin. Of course, the late timing of a motion to substi- tute counsel or to postpone trial does not always preclude relief. See Daniels v. Woodford, 428 F.3d 1181, 1200 (9th Cir. 2005) (“Even if the trial court becomes aware of a conflict on the eve of trial, a motion to substitute counsel is timely if the conflict is serious enough to justify the delay. This is particu- larly true where the trial court has reason to know of the con- flict months before the trial but does not inquire into the conflict.” (citation omitted)). However, in this case, with no justification for Miller’s delay other than his father’s change of heart, we cannot conclude that the trial judge’s decision to deny the motions was the type of unreasoning and arbitrary MILLER v. BLACKETTER 5287 insistence on expeditiousness that clearly established federal law prohibits. See Morris, 461 U.S. at 11-12. III [9] Viewing the foregoing factors under the deferential standard that § 2254(d)(1) requires, we conclude that the trial judge’s decision to deny the motions to withdraw and to post- pone trial did not exceed his discretion to balance Miller’s right to counsel of choice against concerns of fairness and scheduling. See Gonzalez-Lopez, 126 S. Ct. at 2565-66. Accordingly, the district court’s denial of Miller’s petition for a writ of habeas corpus is AFFIRMED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3051961/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KIMBERLY JACOBS; DONALD JACOBS;  LINDA ROWLEY; DWIGHT TERRY, JR.; DWIGHT TERRY, SR.; SHANE DRESSER; DONALD DRESSER; WENDY DRESSER; LONA FINLEY; WHITNEY ROSE; LYNN ROSE; DEANNA WRIGHT, Plaintiffs-Appellants, No. 05-16434 v. D.C. No. CLARK COUNTY SCHOOL DISTRICT;  CV-S-04-01490- MARGE APPUGLISE; SHIRLEY RLH BARBER; SUSAN BRAGER-WELLMAN; OPINION DENISE BRODSKY; PENNY ELLIOT; EMELIO FERNANDEZ, JR.; CARLOS GARCIA; RUTH JOHNSON; LARRY MASON; SHEILA MOULTON; DARLENE RUSSELL; MARY BETH SCOW; MILANA WINTER, Defendants-Appellees.  Appeal from the United States District Court for the District of Nevada Roger L. Hunt, District Judge, Presiding Argued and Submitted March 8, 2007—Tempe, Arizona Submission Vacated May 3, 2007 Resubmitted August 15, 2007 Filed May 12, 2008 Before: Michael Daly Hawkins, Sidney R. Thomas, and Richard R. Clifton, Circuit Judges. 5177 5178 JACOBS v. CLARK COUNTY SCHOOL DIST. Opinion by Judge Hawkins; Dissent by Judge Thomas JACOBS v. CLARK COUNTY SCHOOL DIST. 5181 COUNSEL Allen Lichtenstein, General Counsel, ACLU of Nevada, Las Vegas, Nevada, for the plaintiffs-appellants. C.W. Hoffman, Jr., Clark County School District, Office of the General Counsel, Las Vegas, Nevada, for the defendants- appellees. 5182 JACOBS v. CLARK COUNTY SCHOOL DIST. OPINION HAWKINS, Circuit Judge: Public school districts across the country have increasingly turned to the adoption of mandatory dress policies, sometimes referred to as “school uniform policies,” in an effort to focus student attention and reduce conflict. These policies are not without controversy, and many students, as well as their par- ents, find them offensive to their understanding of core First Amendment values. In a case of first impression in this cir- cuit, we address just such a set of challenges and largely con- clude that public school mandatory dress policies survive constitutional scrutiny. FACTUAL & PROCEDURAL HISTORY In 2003, the Clark County School District (“the District”) promulgated Regulation 5131 (“the Regulation”),1 which cre- ated a standard dress code for all Clark County students2 and established a means by which individual schools in the Dis- trict could establish more stringent mandatory school uniform policies.3 These uniform policies were to be established “for 1 The Regulation was passed pursuant to section 392.458 of the Nevada Revised Statutes (“N.R.S. § 392.458”), which authorizes “[t]he board of trustees [of a Nevada school district] . . . , in consultation with the schools within the district [and] parents and legal guardians of pupils who are enrolled in the district, . . . [to] establish a policy that requires pupils to wear school uniforms.” 2 This dress code contained typical student dress provisions, such as pro- hibitions on wearing hats in class, wearing clothing that is obscene, dis- ruptive, or hazardous to student safety, and wearing skirts that are too short. None of the plaintiffs challenge the constitutionality of this basic dress code. 3 Significantly, in its original incarnation, the Regulation required any school considering a uniform policy to first conduct a parental survey. Only if at least 51% of the school’s parents returned the surveys—and, of those responding, at least 70% favored the policy—could the policy be implemented. JACOBS v. CLARK COUNTY SCHOOL DIST. 5183 the purpose[s] of increasing student achievement, promoting safety, and enhancing a positive school environment.”4 A number of schools in the District instituted such uniform policies. For example, Liberty High School (“Liberty”) insti- tuted a policy requiring all students to wear “solid khaki- colored bottoms and solid-colored polo, tee, or button-down shirts (blue, red or white) with or without Liberty logos.”5 Kimberly Jacobs (“Jacobs”), then an eleventh-grader at Lib- erty, repeatedly violated Liberty’s uniform policy (at least once by wearing a shirt containing a printed message reflect- ing her religious beliefs). As a result of these violations, Jacobs was repeatedly referred to the Dean’s office and was ultimately suspended from school five times for a total of approximately twenty-five days. Although Liberty provided Jacobs with educational services during her suspensions6— and, in fact, Jacobs’s grade point average improved during that time period7—Jacobs claims that she missed out on class- room interactions, suffered reputational damage among her teachers and peers, had a tarnished disciplinary record, and was unconstitutionally deprived of her First Amendment rights to free expression and free exercise of religion because of Liberty’s enforcement of its mandatory school uniform pol- icy.8 4 Although the second and third purposes were not expressly listed in the original version of the Regulation, they were listed in a revised version of the Regulation and, according to an unrebutted affidavit from the Dis- trict’s superintendent, were purposes of the Regulation from the outset. 5 The other schools involved in this case implemented similar uniform policies, though most of these did not allow student clothing to contain a school logo. 6 Her teachers apparently provided Jacobs with homework, corrected that homework, allowed her to take tests, and communicated with her via telephone and e-mail. 7 Jacobs was not “penalized academically”; in fact, the undisputed evi- dence shows that her academic performance improved. 8 Nor was Jacobs “forced to transfer to another school”; rather, she decided—as she is entitled to do—that she would rather attend a school without a dress code than comply with the dress code at Liberty. 5184 JACOBS v. CLARK COUNTY SCHOOL DIST. Jacobs and her parents thus brought suit against the District and various individual defendants (collectively, “Defen- dants”), asking the court to: (1) declare N.R.S. § 392.458, the Regulation, and Liberty’s mandatory school uniform policy unconstitutional as violating the First Amendment’s Free Speech and Free Exercise clauses, as well as the Fourteenth Amendment’s Due Process Clause; (2) expunge all related discipline from Jacobs’s record; and (3) award her appropriate damages.9 Without expressing any view on the constitutional- ity of Liberty’s uniform policy or its authorizing regulation and statute, the district court granted Jacobs’s motion for a preliminary injunction and enjoined Liberty from further dis- ciplining or suspending Jacobs for failing to adhere to the poli- cy.10 Following this decision, the District slightly amended the Regulation, with the only significant changes being: (1) a relaxation of the amount of parental support needed to enact a school’s uniform policy;11 and (2) elimination of one portion of the Regulation about which the district court expressed “strong reservations.”12 Additionally, Liberty expunged all uniform-related discipline from Jacobs’s record. 9 Jacobs also alleged violations of Article 1, Section 9 of the Nevada Constitution and other provisions of Nevada law. Because Article 1, Sec- tion 9 of the Nevada Constitution is “coextensive [with] . . . the First Amendment to the United States Constitution,” S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243, 251 (Nev. 2001), and because none of the state law claims are at issue in this appeal, this decision focuses only on Jacobs’s arguments under the United States Constitution. 10 The preliminary injunction was based on the district court’s finding that Liberty’s uniform policy was likely implemented without complying with the original Regulation’s parental survey requirements—a claim Plaintiffs have since abandoned. See infra Part IV (objecting to policy’s implementation only insofar as it violated due process, not state law). 11 Under the revised version of the Regulation, a school could implement a uniform policy if, of the parental survey responses it received, at least 55% expressed approval for the policy. A “minimum response rate” was no longer needed. 12 This portion made an exception to the uniform policy for “nationally recognized youth organizations such as the Boy Scouts or the Girl Scouts.” The district court’s reservations were based on its tentative con- clusion that that portion of the Regulation created a “content-specific clothing exception[ ].” Compare infra Part II.A. JACOBS v. CLARK COUNTY SCHOOL DIST. 5185 Encouraged by Jacobs’s success in obtaining a preliminary injunction—and concerned about the suit’s viability after Jacobs had withdrawn from Liberty and moved to a new school district—a number of other District students and their parents (collectively, “Plaintiffs”) joined the suit.13 Shane Dresser (“Dresser”)—a student at Jim Bridger Mid- dle School (“Bridger”) at the time this suit was filed14— alleged, inter alia, that his right to free exercise of religion was violated when, after being denied a religious exemption from Bridger’s uniform policy, he was forced to wear the required uniform. Dresser had applied for an exemption on the ground that his religion teaches its members to embrace their individuality and further teaches that, even though “uni- formity can be accepted by an individual if they choose to do so by their own free will, . . . no one can force uniformity onto a person.” Dresser’s application was denied without explana- tion.15 Dwight Terry, Jr. (“Terry”)—a student at Chaparral High School (“Chaparral”)—alleged that, on at least five occasions, he was sent to the principal’s office for the remainder of the school day for failing to wear the required school uniform. Neither the amended complaint nor any evidence in the record provides any additional information regarding Terry’s viola- tions. Specifically, the record does not indicate whether Terry’s non-compliance was due to a religious objection, a 13 Like Jacobs’s original complaint, the amended complaint sought declaratory and injunctive relief, as well as appropriate damages. 14 Dresser no longer attends Bridger and, as Plaintiffs’ counsel conceded at oral argument, does not presently attend a school in the District with a mandatory uniform policy. 15 The explanation given by the District’s deputy superintendent for the denial of a similar application filed by Dresser’s brother, Quinn (who is not a named plaintiff in this suit), was that the Dressers’ religion did not require its members to wear certain items of clothing to school and that the Dressers made “no showing” that the uniform policy prevented their son from engaging in conduct that was required by his religion. 5186 JACOBS v. CLARK COUNTY SCHOOL DIST. desire to communicate a particular message (either via his dress itself or via a printed message contained on his cloth- ing), a desire to cause disruption in his school, or simple for- getfulness. Chaparral is not presently enforcing a school uniform policy. Whitney Rose and John Does I & II—students at Frank E. Garside Jr. High School (“Garside”) and Glen Taylor Elemen- tary School (“Glen Taylor”), respectively—alleged that their due process rights were violated when their schools imple- mented school uniform policies without complying with the parental survey requirements included in the original Regula- tion.16 Of these three students, only John Doe I continues to attend a District school with a mandatory uniform policy. Defendants moved to dismiss Plaintiffs’ amended com- plaint under Rule 12(b)(6). After advising the parties that Defendants’ motion might be construed as one for summary judgment, and after the parties supplemented the record accordingly, the district court struck two provisions of the Regu- lation,17 but otherwise granted summary judgment in favor of 16 John Doe I also alleges that he was unconstitutionally forbidden from wearing a “Say No to Uniforms” button at school; however, as the district court properly found, this claim appears nowhere in the amended com- plaint and the brief treatment the subject was given in Plaintiffs’ summary judgment filings was “insufficient to assert a cause of action meriting fur- ther discussion.” Jacobs v. Clark County Sch. Dist., 373 F. Supp. 2d 1162, 1174 n.3 (D. Nev. 2005). 17 These provisions—which exempted students from complying with the uniform policies when doing so “violates [the] student’s/parent’s religion” and permitted school principals to “grant exceptions for designated spirit days, special occasions, or special conditions”—were found unconstitu- tional because they provided “almost unlimited discretion to school administrators.” See Jacobs, 373 F. Supp. 2d at 1184 (citing City of Lake- wood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (free exercise clause violated when “unbridled discretion” given to enforcing authori- ties)). Defendants do not appeal these rulings, though—as discussed infra Part III.B—Plaintiffs argue that the district court’s decision to strike the religious exemption on “excessive discretion” grounds solved one consti- tutional problem only by creating another. JACOBS v. CLARK COUNTY SCHOOL DIST. 5187 Defendants, finding no other constitutional infirmity with N.R.S. § 392.458, the Regulation, or the individual schools’ uniform policies. See generally, Jacobs, 373 F. Supp. 2d at 1162. Plaintiffs appeal this judgment. DISCUSSION I. Justiciability [1] Before turning to the constitutional claims lodged against the District’s school uniform policies, we must ensure that at least one plaintiff presents a justiciable “case or contro- versy” with respect to each constitutional claim. U.S. Const. art. III; City of S. Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980). For a plaintiff’s claim to be justiciable, he or she must have standing to bring the claim, and the claim must not be moot. Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). A plaintiff has standing to challenge allegedly unconstitu- tional conduct as long as: (1) he or she has “suffered an ‘injury in fact’ ”; (2) there is a “causal connection between the injury and the conduct complained of”; and (3) it is likely “the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). While standing is determined based on the facts “as they exist[ed] at the time the complaint was filed,” id., a case becomes moot—and, hence, non-justiciable—if the “requisite personal interest” captured by the standing doctrine ceases to exist at any point during the litigation. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980); Bernhardt v. County of Los Ange- les, 279 F.3d 862, 871 (9th Cir. 2002). Although many of Plaintiffs’ claims for declaratory and injunctive relief appear to be moot (as only one plaintiff con- tinues to attend a District school that is currently enforcing a mandatory school uniform policy), Plaintiffs’ amended com- 5188 JACOBS v. CLARK COUNTY SCHOOL DIST. plaint seeks not only prospective relief, but also “appropriate damages.” As this court clarified in Bernhardt, a “live claim for [even] nominal damages will prevent dismissal for moot- ness.” 279 F.3d at 872. We thus examine each of Plaintiffs’ constitutional claims to determine whether at least one plain- tiff meets the three standing requirements and retains a “live claim for [at least] nominal damages.” See id. A. Freedom of Speech Plaintiffs allege that the District’s mandatory school uni- form policies infringe upon students’ free speech rights by preventing them from engaging in both constitutionally pro- tected “pure speech” and constitutionally protected “expres- sive conduct,” as well as by compelling them to “speak” in a particular manner.18 When a plaintiff alleges violation of a constitutional right, the Supreme Court has held that, even if compensatory dam- ages are unavailable because the plaintiff has sustained no “actual injury”—such as an economic loss, damage to his rep- utation, or emotional distress—nominal damages are nonethe- less available in order to “mak[e] the deprivation of such right[ ] actionable” and to thereby acknowledge the “impor- tance to organized society that [the] right[ ] be scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 266 (1978); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (“Our discussion [in Carey] makes clear that nominal damages . . . are the appropriate means of ‘vindicat- 18 Although the district court did not address Plaintiffs’ “compelled speech” argument in its decision, the argument was properly raised both to the district court and to this court; thus, we consider the argument on appeal. Donovan v. Crisostomo, 689 F.2d 869, 874 (9th Cir. 1982). We do not, however, consider Plaintiffs’ argument that the uniform policies worked to foreclose to Plaintiffs an “entire medium of expression,” see City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994), as that argument was not properly raised to the district court. Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996). JACOBS v. CLARK COUNTY SCHOOL DIST. 5189 ing’ [constitutional] rights whose deprivation has not caused actual, provable injury.”). [2] Here, while it is questionable whether Jacobs has pre- sented sufficient evidence of actual damages to be entitled to compensatory relief19—and it is clear that Dresser has not even attempted to do so—this is not fatal to the justiciability of their claims. Jacobs has standing to bring a non-moot claim for nominal damages because she alleges an “injury in fact”— namely, deprivation of her First Amendment right to commu- nicate a particular written message on her clothing—that was caused by Liberty’s mandatory uniform policy and would be redressed if this court were to find the policy unconstitutional. See RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1055 (9th Cir. 2002) (free speech case found justiciable based solely on plaintiffs’ allegations that city regulation “pre- vent[ed] them from playing the music of their choice”). Simi- larly, Dresser has standing to bring a non-moot claim for nominal damages because he alleges “injuries in fact”— namely, deprivation of his First Amendment rights to engage in expressive conduct via his choice of clothing and to be free from compelled speech—that was caused by Bridger’s man- datory uniform policy and, again, would be redressed if this court found that policy unconstitutional. See id. Thus, although Jacobs and Dresser may be entitled to col- 19 Jacobs alleges that, although her scholastic record did not suffer as a result of her repeated suspensions, she nevertheless suffered compensable reputational damage, as well as damages emanating from her missed class- room interactions. Defendants counter that Jacobs has put forth no admis- sible evidence of such damages. Although we note that Jacobs did put forth competent evidence that she was suspended for 25 days and that missing classroom time caused her some educational harm, we need not decide whether this evidence would, itself, be sufficient to support a claim for compensable damages. As explained below, even taking the facts in the light most favorable to Jacobs, none of Jacobs’s constitutional rights were violated; thus, the district court properly dismissed Jacobs’s suit at the summary judgment stage. 5190 JACOBS v. CLARK COUNTY SCHOOL DIST. lect only nominal damages were they to succeed on their free speech claims, they nonetheless present justiciable challenges to all speech-related aspects of the District’s uniform policy. See Lujan, 504 U.S. at 560-61; Bernhardt, 279 F.3d at 872; RK Ventures, 307 F.3d at 1055. The merits of these free speech claims will be discussed in Part II. B. Free Exercise of Religion [3] Plaintiffs also allege that the District’s mandatory uni- form policies prevented Jacobs and Dresser from freely exer- cising their respective religions. Again, these two plaintiffs have standing to assert non-moot claims for at least nominal damages because they allegedly sustained “injuries in fact” that were caused by their schools’ uniform policies and would be redressed if the court found those policies unconstitutional. See Lujan, 504 U.S. at 560-61; Bernhardt, 279 F.3d at 872; Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (allow- ing free exercise claim for only nominal damages to proceed). Specifically, Jacobs was allegedly prevented from practicing her religion (which she wanted to do by wearing clothing expressing her beliefs), while Dresser was allegedly (1) pre- vented from expressing his individuality via his clothing, and (2) required to engage in an act of conformity by wearing the school uniform—both of which, he claims, violate the teach- ings of his religion. The merits of these free exercise claims will be discussed in Part III. C. Due Process [4] Finally, Plaintiffs allege that their due process rights were violated when several schools in the District—including Liberty, Bridger, Garside, and Glen Taylor—instituted school uniform policies without complying with the parental survey requirements contained in the original Regulation. Because the students at these schools were allegedly deprived of a cog- nizable liberty interest in free speech as a result of the school uniform policies, they too have standing to bring a non-moot JACOBS v. CLARK COUNTY SCHOOL DIST. 5191 claim for nominal damages. See Lujan, 504 U.S. at 560-61; Bernhardt, 279 F.3d at 872; Carey, 435 U.S. at 266 (“[T]he denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”). The merits of these due process claims will be discussed in Part IV. Because at least one plaintiff has alleged a viable claim for at least nominal damages with respect to each constitutional issue, our justiciability inquiry ends there,20 and we proceed to the merits of their claims. II. Free Speech Claims Plaintiffs raise three speech-related claims. First, Plaintiffs contend that the District’s school uniform policies (which pro- hibit students from displaying any printed messages on their clothing save for, in some cases, the school logo) unconstitu- tionally restrict students’ rights to engage in “pure speech” while in school. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (“[S]tudents [do not] . . . shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”). This claim is best exemplified by Liberty’s refusal to allow Jacobs to wear t-shirts containing written messages expressing her religious beliefs in school.21 Second, Plaintiffs claim that the uniform policies unconstitu- tionally restrict students’ rights to engage in “expressive con- duct.” See id. This claim is best exemplified by Bridger’s refusal to allow Dresser to express his individuality (and his objection to forced uniformity) by wearing clothing different from his classmates.22 Third, Plaintiffs claim that requiring 20 Specifically, because we find such relief inappropriate on the merits, we need not consider (and, thus, do not decide) whether Plaintiffs’ requests for declaratory and injunctive relief are justiciable. 21 Such conduct is unquestionably protected by the First Amendment. See Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 440 (5th Cir. 2001). 22 We need not decide whether such conduct is imbued with sufficient communicative intent to be protected by the First Amendment. See Spence 5192 JACOBS v. CLARK COUNTY SCHOOL DIST. students to wear a uniform amounts to unconstitutional “com- pelled speech.” See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); see also supra note 18. This claim is best exemplified by Dresser’s contention that he is being forced to convey a message of uniformity (with which he strongly dis- agrees) by wearing the same clothing as his classmates. We agree with the district court that none of Plaintiffs’ free speech claims survive summary judgment. Ballen v. City of Redmond, 466 F.3d 736, 741 (9th Cir. 2006) (reviewing grant of summary judgment in free speech case de novo). We reach this conclusion because, as explained in more detail below, the District’s encroachment upon its students’ rights to free speech and expression via its content-neutral school uniform policies need only survive intermediate scrutiny to be constitutional—a level of scrutiny we find the uniform poli- cies easily withstand. Moreover, enforcement of the manda- tory uniform policies does not amount to “compelled speech” because, under the circumstances, it is unlikely anyone view- ing a uniform-clad student would understand the student to be communicating a particular message via his or her mandatory dress. A. Pure Speech and Expressive Conduct 1. The District’s School Uniform Policies Need Only Withstand Intermediate Scrutiny to be Constitutional The court below concluded that the District’s uniform poli- cies did not infringe upon students’ rights to engage in pure v. Washington, 418 U.S. 405, 409 (1974) (per curiam). Rather, we follow the Fifth Circuit’s lead and assume (without deciding) that wearing cloth- ing different from one’s classmates is sufficiently expressive of a student’s views about non-conformity to merit First Amendment protection. See Lit- tlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 285-86 (5th Cir. 2001); Canady, 240 F.3d at 440-41 & n.3. JACOBS v. CLARK COUNTY SCHOOL DIST. 5193 speech or expressive conduct because the policies withstood intermediate scrutiny.23 Jacobs v. Clark County Sch. Dist., 373 F. Supp. 2d 1162, 1181, 1185-87 (D. Nev. 2005). Plain- tiffs take issue with this analysis from the outset, arguing that applying intermediate scrutiny to student speech is foreclosed by Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992). Specifically, they argue that, under Chandler, speech that is neither “vulgar, lewd, obscene, [or] plainly offensive” nor “school-sponsored”—like the speech Plaintiffs wish to engage in here—must be analyzed under the stricter standard the Supreme Court utilized in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 509 (1969),24 and, most importantly, that Chandler leaves room for no other alternative. Plaintiffs’ argument is superficially appealing. Chandler laid out three categories of student speech—“(1) vulgar, lewd, obscene, and plainly offensive speech, (2) school-sponsored 23 Intermediate scrutiny’s precise contours vary slightly depending upon which constitutional right is at issue. In the First Amendment context, intermediate scrutiny takes the form of the “O’Brien test” for restrictions on expressive conduct, see United States v. O’Brien, 391 U.S. 367, 376-77 (1968), and the “time, place and manner test” for viewpoint- and content- neutral restrictions on pure speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661-62 (1994). See also Clark v. Cmty. for Creative Non- Violence, 468 U.S. 288, 298 (1984) (confirming that the two tests are, in essence, identical). 24 That is, that the restriction is unconstitutional unless the school can show that “engaging in the forbidden conduct would ‘materially and sub- stantially interfere with the requirements of appropriate discipline in the operation of the school.’ ” Id. (quoting Burnside v. Byers, 363 F.2d 744, 749 (5th Cir. 1966)). Although Tinker did not equate its “substantial inter- ference” test with the “strict scrutiny test” that is now commonly used in First Amendment cases (perhaps because that terminology was not in common parlance at the time, see First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (earliest Supreme Court case using this terminology in the free speech context)), Plaintiffs’ argument rests on the “substantial interference” test being more difficult to withstand than the intermediate scrutiny test. 5194 JACOBS v. CLARK COUNTY SCHOOL DIST. speech, and (3) speech that falls into neither of these categories”—and explained that speech in the first category should be analyzed under Bethel School District Number 403 v. Fraser, 478 U.S. 675 (1986), speech in the second category should be analyzed under Hazelwood School District v. Kuhl- meier, 484 U.S. 260 (1988), and speech in the third category should be analyzed under Tinker, 393 U.S. at 513-14. See 978 F.2d at 529. As both parties concede, Plaintiffs’ speech falls into neither of the first two categories. Plaintiffs thus argue that, just as the policy in Tinker was found unconstitutional because allowing students to wear black armbands in silent protest would not “substantially interfere with the work of the school or impinge upon the rights of other students,” 393 U.S. at 509, the policy here (i.e., forbidding students from wearing their choice of clothing to school) should be found unconstitutional because it fails Tinker’s “substantial interference” test, as well. What Plaintiffs miss—but the district court and one of our sister circuits have correctly recognized—is a key flaw in this logic. See Canady v. Bossier Parish Sch. Dist., 240 F.3d 437, 441-43 (5th Cir. 2001); Jacobs, 373 F. Supp. 2d at 1175-81. While Chandler certainly says that all speech in the third cate- gory must be analyzed under Tinker, it does not say that all speech in this category has to be evaluated at the same level of scrutiny as that ultimately used in Tinker. In other words, while Chandler dictates that Tinker must guide our analysis of this case, it does not require us to blindly apply the stan- dard employed therein. We thus start by carefully examining what the Tinker decision does—and, even more importantly, what it does not—say. JACOBS v. CLARK COUNTY SCHOOL DIST. 5195 a. Tinker Is Silent About How Content-Neutral Regulations of Pure Speech and Regulations Affecting Expressive Conduct Should be Evaluated In Tinker, a group of students had arranged to wear black armbands to school to protest the involvement of the United States in the Vietnam War. 393 U.S. at 504. Upon learning of this plan, the Des Moines Independent School District adopted a policy prohibiting students from wearing such arm- bands, apparently fearing the disturbance they might cause. Id. at 504, 508. When the students were suspended for violat- ing the no-armband policy, they filed suit, arguing that the policy violated their rights to free speech under the First Amendment. Id. at 504. The Supreme Court agreed, holding that, “[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id. at 509. The Court further explained: [I]n our system, undifferentiated fear or apprehen- sion of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any vari- ation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this rel- atively permissive, often disputatious, society. 5196 JACOBS v. CLARK COUNTY SCHOOL DIST. Id. at 508-509 (internal citation omitted). [5] In short, the Court made clear that suppressing the expression of unpopular or controversial opinions—even in the name of avoiding potential in-school disturbances—was a violation of the First Amendment unless the school could show that, absent such suppression, the school’s orderly oper- ation would be “materially and substantially” compromised. Id. at 509. [6] Despite Plaintiffs’ attempt to read Tinker more broadly, this is all Tinker expressly holds. Two things are notable about this limited holding. First, as the Court itself made clear, its “substantial interference” test applies only to restric- tions on “pure speech,” and does not necessarily apply to school policies placing incidental restrictions on expressive conduct. See id. at 507-08 (“The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment.”); King v. Sad- dleback Jr. Coll. Dist., 445 F.2d 932 (9th Cir. 1971) (declin- ing to employ Tinker analysis to student’s claim that policy disallowing long hair for male students violated the First Amendment). Thus, Tinker leaves unresolved the question of how restrictions upon expressive conduct in schools should be evaluated.25 But see generally Texas v. Johnson, 491 U.S. 397, 406 (1989) (“The government generally has a freer hand in restricting expressive conduct than it has in restricting [pure speech].”). [7] Second, the holding itself extends only to viewpoint- based speech restrictions, and not necessarily to viewpoint- neutral speech restrictions. Although these two terms of art had not yet been used by the Supreme Court when Tinker was decided in 1969, see Young v. Am. Mini Theatres, Inc., 427 U.S. 50 (1976), the Tinker opinion makes clear that the Court’s principal objection to the armband prohibition was 25 We take up this as-yet unresolved question in Part II.A.1.c. JACOBS v. CLARK COUNTY SCHOOL DIST. 5197 that it was motivated by a “desire to avoid the discomfort and unpleasantness that . . . accompany an unpopular viewpoint.” 393 U.S. at 509 (emphasis added). In essence, the Court found the armband prohibition unconstitutional not simply because it worked to prohibit students from engaging in a form of pure speech, but because it did so based on the particular opinion the students were espousing. Id. at 510-11 (finding it signifi- cant “that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial signifi- cance, . . . [but only] the wearing of armbands . . . worn to exhibit opposition to this Nation’s involvement in Vietnam”). Although a slightly more expansive reading of Tinker sug- gests that its mode of analysis should also be used when a school’s regulation is content-based (not only when it is viewpoint-based),26 no reading of Tinker suggests that viewpoint- and content-neutral restrictions on student speech should also be subjected to “Tinker scrutiny.” Indeed, neither this court nor the Supreme Court has ever analyzed a content- neutral restriction on student speech under Tinker; rather, the Tinker test has only been employed when a school’s restric- tions have been based, at least in part, on the particular mes- sages students were attempting to communicate.27 26 As Supreme Court jurisprudence since Tinker has made clear, viewpoint-based and content-based restrictions on speech are, for the most part, equally pernicious and, thus, restrictions of either variety must ordi- narily be subjected to the same degree of scrutiny. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 544 (2001); Nat’l Ass’n for Advancement of Psy- choanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1055 (9th Cir. 2000) (both viewpoint-based and content-based speech restrictions trigger strict scrutiny). 27 See Tinker, 393 U.S. at 509; Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006) (students suspended for signing petition criticiz- ing football coach); LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir. 2001) (student expelled for showing teacher poem he wrote containing imagery of violent death and suicide); Chandler, 978 F.2d at 529 (students prohibited from wearing buttons containing the word “scab” during a teacher strike); Karp v. Becken, 477 F.2d 171 (9th Cir. 1973) (student sus- 5198 JACOBS v. CLARK COUNTY SCHOOL DIST. It is thus our view that Tinker says nothing about how viewpoint- and content-neutral restrictions on student speech should be analyzed, thereby leaving room for a different level of scrutiny than that employed in either Bethel, Hazelwood, or Tinker when student speech is restricted on a viewpoint- and content-neutral basis. Accord Canady, 240 F.3d at 441-43.28 b. District’s School Uniform Policies Are Viewpoint- and Content-Neutral Before turning to precisely what level of scrutiny that should be, we pause to explain why we find the school uni- form policies at issue in this case to be both viewpoint- and pended for attempting to distribute signs protesting school’s refusal to renew an English teacher’s contract); Hatter v. L.A. City High Sch. Dist., 452 F.2d 673 (9th Cir. 1971) (students suspended for distributing leaflets and wearing tags opposing school’s chocolate drive). To our knowledge, every other circuit has applied Tinker in this man- ner, as well. See, e.g., Guzick v. Drebus, 431 F.2d 594 (6th Cir. 1970) (applying Tinker when student suspended for refusing to remove an anti- war button), cert. denied, 401 U.S. 948 (1971); Scoville v. Bd. of Educ. of Joliet High Sch. Dist. 204, 425 F.2d 10 (7th Cir. 1970) (applying Tinker when students expelled for distributing a non-school-sponsored newspaper critical of the school); see also Behymer-Smith v. Coral Acad. of Sci., 427 F. Supp. 2d 969 (D. Nev. 2006) (applying Tinker when student prohibited from reciting poem containing the words “hell” and “damn”). Although the Supreme Court recently suggested that there are some instances in which even content-based restrictions may be analyzed under a less demanding standard than that used in Tinker, see Morse v. Freder- ick, 127 S. Ct. 2618 (2007) (upholding school’s ban on sign reading “Bong Hits 4 Jesus” even though it did not “substantially disrupt the work and discipline of the school”), the Morse holding in no way contradicts our holding here—i.e., that content-neutral speech restrictions need not withstand Tinker scrutiny either. 28 This conclusion does not contradict Chandler, as Plaintiffs contend, but merely recognizes that there exists a fourth category of student speech that had not been explored by either this court or the Supreme Court prior to Chandler and, thus, was left unaccounted for in that case’s recitation of student speech law. JACOBS v. CLARK COUNTY SCHOOL DIST. 5199 content-neutral29 and, thus, deserving of a different level of scrutiny than that applied to the viewpoint-based policy in Tinker. [8] On its face, the portion of the Regulation authorizing schools to implement mandatory uniform policies is aimed at “increasing student achievement, promoting safety, and enhancing a positive school environment.” Nothing in the Regulation’s language suggests it was directed at the type of messages or specific viewpoints previously conveyed by stu- dents’ wardrobe choices; indeed, the record evidence unam- biguously indicates that the District’s purpose in enacting the Regulation was to further the Regulation’s stated goals, not to suppress the expression of particular ideas.30 For example, the referendum sent to parents listing the advantages and disad- vantages of the proposed uniform policy included as potential advantages: (1) “Promot[ing] safety by reducing the ability to hide weapons, drugs or alcohol”; (2) “Allow[ing] students and staff to focus more attention to increasing student achieve- ment”; (3) “Eliminat[ing] dress differences that emphasize different income levels”; and (4) “Simplif[ying] daily school preparation and maintenance for families.” None of the pro- posed advantages related to the “benefits” of preventing stu- dents from expressing unpopular views or communicating about particular subjects via their clothing choices. Of course, while evidence of a viewpoint- and content- 29 From this point forward (unless otherwise noted), we use the term “content-neutral” to capture the dual concepts of viewpoint-neutrality and content-neutrality, and do the converse with the term “content-based.” See supra note 26 (explaining that viewpoint- and content-based speech restrictions are equally disfavored in First Amendment jurisprudence and, thus, are interchangeable insofar as they are both subject to the same degree of judicial scrutiny). 30 See Turner, 512 U.S. at 642 (“[T]he principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or disagreement with the message it con- veys.” (internal quotation marks, citation, and alterations omitted)). 5200 JACOBS v. CLARK COUNTY SCHOOL DIST. neutral purpose strongly suggests that a regulation is, in fact, content-neutral, mere assertion of a benign purpose is insuffi- cient to conclusively establish a regulation’s content- neutrality. Turner, 512 U.S. at 642. Here, Plaintiffs argue that, despite the District’s stated purposes, the Regulation is not content-neutral because it allows student clothing to contain the school logo—an allowance that, in Plaintiffs’ view, sanc- tions expression of messages touting the District’s schools, but not messages relating to any other topic or viewpoint. At first blush, Plaintiffs’ argument seems viable. Indeed, if the Regulation allowed for school uniforms that consisted only of plain-colored clothing without any words, logos, or printed material whatsoever, Plaintiffs’ argument against the Regulation’s content-neutrality would almost certainly fall flat. As it stands, however, Plaintiffs have at least a colorable claim that, by allowing student clothing to contain school logos, the Regulation reflects an impermissible content-based (and, indeed, viewpoint-based) preference for expressions of school pride. [9] While the District could have steered far clear of the First Amendment’s boundaries by foregoing the logo provi- sion entirely, we nevertheless conclude that allowing stu- dents’ otherwise solid-colored clothing to contain a school logo—an item expressing little, if any, genuine communica- tive message—does not convert a content-neutral school uni- form policy into a content-based one. Indeed, the District’s very narrow exception to its other- wise content-neutral school uniform policy is a far cry from those regulations previously found by the Supreme Court to be content-based. See, e.g., United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) (statute restricting cable companies’ dissemination of sexual programming); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (ordinance banning commercial handbills on news racks but allowing newspapers); Boos v. Berry, 485 U.S. 312 (1988) JACOBS v. CLARK COUNTY SCHOOL DIST. 5201 (statute prohibiting display of signs critical of a foreign gov- ernment near a foreign embassy); Carey v. Brown, 447 U.S. 455 (1980) (statute prohibiting all picketing in residential neighborhoods except labor picketing tied to a place of employment); Police Dep’t of City of Chi. v. Mosley, 408 U.S. 92 (1972) (similar); see also ACLU of Nev. v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006) (ordinance prohibiting speech soliciting donations, “charity, business or patronage”). [10] Moreover, “[w]hatever marginal expression wearing [a school] logo implicates, it does not rise to the level of expres- sion to implicate concerns of viewpoint [non-] neutrality.” Long v. Bd. of Educ. of Jefferson County, Ky., 121 F. Supp. 2d 621, 625 n.5 (W.D. Ky. 2000). The content-based/content- neutral dichotomy is not grounded in the text of the First Amendment itself, but was created by the Supreme Court as a tool for distinguishing those regulations that seek to advance “legitimate regulatory goals” from those that seek to “sup- press unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion.” Tur- ner, 512 U.S. at 641. Here, Plaintiffs put forth no evidence that the Regulation’s logo allowance was an attempt by the District to inundate the marketplace of ideas with pro-school messages or to starve that marketplace of contrary opinions; rather, all evidence suggests that the District considered the logo to be an identifying mark, not a communicative device. [11] We thus decline Plaintiffs’ invitation to take the term “content-based” to its literal extreme, and we hold that the District’s school uniform policies are content-neutral despite their allowances for clothing containing school logos.31 31 We also reject Plaintiffs’ argument that the Regulation is viewpoint- based because it allows students to convey messages of conformity, but prohibits students like Dresser from expressing their views about non- conformity. First, it is unlikely students complying with a school uniform policy would be viewed by others as communicating their approval for conformity, see Spence, 418 U.S. at 410-11, thus undermining Dresser’s 5202 JACOBS v. CLARK COUNTY SCHOOL DIST. c. Intermediate Scrutiny Is the Appropriate Standard As discussed above, the school uniform policies at issue here implicate the First Amendment only insofar as they place content-neutral restrictions on students’ pure speech and place incidental restrictions on students’ expressive conduct.32 Because neither type of restriction is governed by Tinker, see supra Part II.A.1, we must now decide how to evaluate the constitutionality of these policies. [12] Outside the school speech context, the Supreme Court has repeatedly held that a law restricting speech on a viewpoint- and content-neutral basis is constitutional as long as it withstands intermediate scrutiny—i.e., if: (1) “it furthers an important or substantial government interest”; (2) “the governmental interest is unrelated to the suppression of free expression”; and (3) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the fur- therance of that interest.” Turner, 512 U.S. at 661-62. The same is true of a regulation that has an incidental effect on expressive conduct. United States v. O’Brien, 391 U.S. 367, 376-77 (1968).33 argument that his school’s uniform policy facilitates communication of conformist messages at all. Second, under Dresser’s logic, any policy requiring students to behave like their fellow students could be seen as favoring conformity and disfavoring non-conformity, yet nobody would seriously contend that requiring students to raise their hands before speak- ing, being polite to classmates, or—perhaps most relevant to this case— wearing a gym uniform, would be a viewpoint-based “speech” restriction containing an implicit preference for conformist “expression.” 32 Notably, these restrictions apply only during the school day and do not limit all speech, just “speech” that is communicated via students’ clothing. 33 O’Brien contemplates a fourth prong of the intermediate scrutiny analysis—namely, that the regulation be within the government’s power to enact. 391 U.S. at 377. Because Plaintiffs do not question the District’s power to implement mandatory school uniform policies under N.R.S. § 392.458, no further discussion of this prong is necessary. Accord Little- field, 268 F.3d at 286. JACOBS v. CLARK COUNTY SCHOOL DIST. 5203 [13] We agree with the district court that this same level of scrutiny should extend to the school speech context. See Jacobs, 373 F. Supp. 2d at 1181; accord Canady, 240 F.3d at 443.34 Applying intermediate scrutiny to school policies that effect content-neutral restrictions upon pure speech or place limitations upon expressive conduct (or, as is the case here, do both) not only strikes the correct balance between students’ expressive rights and schools’ interests in furthering their edu- cational missions, but, as the Fifth Circuit explained, is entirely consistent with the Supreme Court’s other school speech precedents, not to mention the remainder of the Court’s First Amendment jurisprudence. See Canady, 240 F.3d at 442-43.35 [14] Accordingly, if the District’s school uniform policies advance important government interests unrelated to the sup- pression of free speech, and do so in ways that effect as mini- mal a restriction on students’ free expression as possible,36 34 If anything, the scrutiny should be even less demanding, as “the con- stitutional rights of students in public school are not automatically coex- tensive with the rights of adults in other settings, and . . . the rights of students must be applied in light of the special characteristics of the school environment.” Morse, 127 S. Ct. at 2622 (internal quotation marks and citations omitted). Because we find that the District’s school uniform poli- cies withstand intermediate scrutiny, however, we have no occasion to consider whether an even more lenient standard would be consistent with the Constitution. 35 Although we have never applied intermediate scrutiny in the student speech context, we have recently suggested that the standard might be appropriate for “assessing content-neutral regulations that restrict [student] speech or inherently expressive conduct.” See Pinard, 467 F.3d at 759 n.1 (declining to apply intermediate scrutiny because parties did not brief the issue, but inviting parties to explore that issue on remand). 36 While “the incidental restriction on alleged First Amendment free- doms [must be] no greater than is essential to the furtherance of [the gov- ernment’s] interest, . . . a regulation need not be the least speech- restrictive means of advancing the [g]overnment’s interests,” Turner, 512 U.S. at 662 (emphasis added); it need only promote “a substantial govern- ment interest that would be achieved less effectively absent the regula- tion,” id. (internal quotation marks and citations omitted). 5204 JACOBS v. CLARK COUNTY SCHOOL DIST. then the uniform policies should be upheld. We now turn to whether those criteria are satisfied here. 2. Applying Intermediate Scrutiny a. School Uniform Policies Further Important Government Interests The District claims its uniform policies further three impor- tant state interests: (1) “increasing student achievement”; (2) “promoting safety”; and (3) “enhancing a positive school envi- ronment.”37 The District supports its claim with affidavits from school personnel confirming that the school uniform policies were implemented with these purposes in mind and that the policies have, in fact, been effective in advancing these goals. [15] Plaintiffs do not contend that the District’s stated inter- ests are unimportant or insignificant. Instead, they argue that, even though these interests may be laudable, the District’s real justification for its uniform policies was its goal of “visi- ble conformity”—an interest Plaintiffs argue is not important or substantial. But this is not how the intermediate scrutiny test works. Indeed, a court’s job in evaluating a policy under this test’s first step is to determine whether the government’s stated goals qualify as important or substantial. See Turner, 512 U.S. at 664 (specifically, the court must determine whether the government’s evidence “demonstrate[s] that the recited harms are real, not merely conjectural and that the reg- ulation will in fact alleviate these harms in a direct and mate- rial way”). Whether those stated goals are mere pretexts for 37 The stated purpose of the dress code was not simply to “promote ‘school spirit.’ ” The dissent relies on the affidavit of Donald Jacobs for this assertion, but such reliance is not appropriate on summary judgment, and, in any event, the affidavit certainly does not constitute the “stated purpose” of the dress code. The actual purpose of the dress code—student achievement, safety, positive school environment—is stated explicitly in the regulation and reflects important government interests. JACOBS v. CLARK COUNTY SCHOOL DIST. 5205 a more insidious government purpose is taken up in the sec- ond and third steps of the analysis. See id.; O’Brien, 391 U.S. at 377-80. [16] Here, the government’s stated goals unquestionably qualify as “important.” See Canady, 240 F.3d at 443-44 (find- ing comparable goals sufficiently important to withstand intermediate scrutiny); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 391-92 (6th Cir. 2005) (“[B]ridging socio- economic gaps between families within the school district, focusing attention on learning, increasing school unity and pride, enhancing school safety, promoting good behavior, reducing discipline problems, improving test scores, improv- ing children’s self-respect and self-esteem, helping to elimi- nate stereotypes and producing a cost savings for families . . . are all important governmental interests [served by a school uniform policy].”). Indeed, it is hard to think of a government interest more important than the interest in fostering condu- cive learning environments for our nation’s children. [17] Additionally, not only do affidavits from District administrators indicate that the school uniform policies have been effective in achieving the Regulation’s three goals— which itself is evidence that the contemplated “harms are real” and that the policies do “in fact alleviate these harms in a direct and material way,” Turner, 512 U.S. at 664—the Department of Education has also acknowledged the efficacy of school uniforms in advancing such state interests. See U.S. Dep’t of Ed. Manual on Sch. Uniforms (1996), available at http://www.ed.gov/updates/uniforms.html.38 In the absence of 38 This manual lists as the potential benefits of school uniform policies: • Decreasing violence and theft—even life-threatening situations—among students over designer clothing or expen- sive sneakers; • Helping prevent gang members from wearing gang colors and insignia at school; 5206 JACOBS v. CLARK COUNTY SCHOOL DIST. any evidence from Plaintiffs that the uniform policies fail to advance the important government interests of increasing stu- dent achievement, enhancing safety, and creating a positive school environment, we conclude that the first prong of the intermediate scrutiny test is satisfied. b. The District’s Interests Are Unrelated to the Suppression of Free Expression Because the District’s stated interests are “unrelated to the suppression of free expression,” we conclude that the second prong of the intermediate scrutiny test is satisfied, as well. See Turner, 512 U.S. at 662; O’Brien, 391 U.S. at 377. [18] On their face, the District’s goals have nothing to do with quelling speech or limiting expression. Accord Castorina ex rel. Rewt v. Madison County Sch. Bd., 246 F.3d 536, 548 (6th Cir. 2001) (Kennedy, J., concurring) (“[A] stable, disruption-free educational environment is a substantial gov- ernment interest . . . unrelated to the suppression of student expression.”). Additionally, the record is devoid of any evi- dence suggesting that the District’s stated goals were mere pretexts for its true purpose of preventing students from expressing their views on particular subjects, such as support for a particular faith (in Jacobs’s case) or opposition to con- formity (in Dresser’s case). The District may have known that views like these would be incidentally suppressed because of its schools’ uniform policies; however, its reasons for enact- ing the uniform policies were—as far as the record reveals— entirely divorced from preventing student speech. • Instilling students with discipline; • Helping parents and students resist peer pressure; • Helping students concentrate on their school work; and • Helping school officials recognize intruders who come to the school. JACOBS v. CLARK COUNTY SCHOOL DIST. 5207 [19] Again, the referendum sent home to parents is telling. Although the District acknowledges in this referendum that its school uniform policies would limit student creativity and restrict students’ freedom to express themselves in non- violent ways, it lists these effects in the “Cons - Disadvan- tages” column, thus implying that the District enacted the Regulation authorizing school uniforms not because of, but in spite of, the impact school uniform policies would have on students’ expressive opportunities. We thus conclude that the District’s interests are not pretexts for an underlying desire to limit free speech but, rather, are directed only at creating an educational environment free from the distractions, dangers, and disagreements that result when student clothing choices are left unrestricted. Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (expressing less First Amend- ment concern regarding policies “aimed not at the content” of the forbidden speech, but rather at the “secondary effects” of that speech).39 c. The District’s School Uniform Policies Do Not Restrict More Speech Than Necessary The third prong of the intermediate scrutiny test has been stated in several forms but, for purposes of this case, it focuses on whether the regulation “leave[s] open ample alter- native channels” for student communication. Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir. 1998). 39 We reject Plaintiffs’ argument in response—i.e., that a school policy that purports to regulate conduct, but “specifically includes a prohibition on all messages in the actual text of the policy,” is necessarily related to the suppression of communication. To start, the Regulation nowhere refer- ences “messages” or “writing” in its text. Although it does limit students’ clothing choices to plain-colored (or school logoed) clothing, and this does prevent students’ clothing from containing written messages, if preventing expression of such messages were the primary aim of requiring clothing to be solid-colored, then striped, polka-dot, or plaid clothing would have been permitted, as would clothing of all colors, not just a select few. 5208 JACOBS v. CLARK COUNTY SCHOOL DIST. [20] As the district court appropriately noted, although the school uniform policies may limit students’ abilities to express themselves via their clothing choices, “students may continue to express themselves through other and traditional methods of communication throughout the school day.” For example, students are still permitted (if not encouraged) to have verbal conversations with other students, publish articles in school newspapers, and join student clubs. Moreover, even a student’s ability to communicate through his or her choice of clothing is not completely curtailed, as students are still permitted to choose what clothing to wear after school, on weekends, and at non-school functions. [21] Because the District’s uniform policies limit only one form of student expression (while leaving open many other channels for student communication) and apply during the narrowest possible window consistent with the District’s goals of creating a productive, distraction-free educational environment for its students,40 the District’s uniform policies are a narrowly-tailored way of furthering the District’s peda- gogical goals without infringing upon students’ First Amend- ment rights any more than is necessary to achieve these goals. See Turner, 512 U.S. at 661-62; O’Brien, 391 U.S. at 376-77. Accordingly, the policies withstand intermediate scrutiny and do not unconstitutionally abridge a student’s rights under the First Amendment to engage in free speech while at school. B. Compelled Speech Plaintiffs next argue that the District’s uniform policies infringe upon students’ First Amendment rights because they compel students to express support for conformity—a mes- sage with which students like Dresser disagree.41 Although the 40 The Regulation limits the uniform policy’s enforcement to only “regu- lar school hours while in attendance at the school or school approved func- tions.” 41 Because Dresser is the only plaintiff who claims that, by being required to wear his school uniform, he was compelled to communicate a message with which he disagreed, we analyze Plaintiffs’ compelled speech argument by considering only Dresser’s allegations. JACOBS v. CLARK COUNTY SCHOOL DIST. 5209 district court did not address this argument in its order grant- ing summary judgment, Plaintiffs did raise the argument both to the district court and in their opening brief here; thus, we will consider the contention on appeal. Donovan v. Crisos- tomo, 689 F.2d 869, 874 (9th Cir. 1982). [22] Dresser contends that uniforms usually convey sym- bolic messages, see, e.g., Daniels v. City of Arlington, Tex., 246 F.3d 500, 504 (5th Cir. 2001) (wearing police uniform conveys message of government-sanctioned authority), and thus that, by requiring him to wear a school “uniform,” Bridger compelled him to convey a symbolic message—here, support for conformity and community affiliation—against his will. We disagree. First, although there are times when “wearing a uniform is expressive, identifying the wearer with other wearers of the same uniform, and with the ideology or purpose of the group,” Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206 (2d Cir. 2004), wearing Bridger’s school uniform (which, here, consists of nothing more than plain-colored tops and bottoms) can hardly be com- pared to wearing the type of “uniform” contemplated in Kerik —i.e., a white hooded gown that clearly identifies its wearer as a member of the Ku Klux Klan and, presumably, as a sub- scriber to its views.42 [23] Second, given both “the nature of [Dresser’s] activity” and “the factual context and environment in which it was undertaken,” the likelihood that a person viewing Dresser wearing his mandated school uniform would have understood Dresser to be conveying a message of conformity is extremely small. Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (finding conduct to be expressive only when that 42 This does not necessarily mean that a student choosing to defy a school’s mandatory uniform policy would not be communicating a mes- sage others could understand; it means only that wearing a solid-colored top and khaki bottoms does not, itself, communicate a discernable mes- sage akin to that communicated by wearing Ku Klux Klan garb. 5210 JACOBS v. CLARK COUNTY SCHOOL DIST. likelihood was “great”). Wearing a uniform does not involve written or verbal expression of any kind, cf. Barnette, 319 U.S. at 628-29, 642 (requiring students to pledge allegiance to the American flag each morning), it is passive rather than active, cf. id., and if it conveys a message at all, that message is imprecise, rather than “particularized,” cf. Spence, 418 U.S. at 411. See Troster v. Pa. State Dep’t of Corr., 65 F.3d 1086, 1090-91 (3d Cir. 1995) (citing these reasons when concluding that requiring state corrections officers to wear American flag patch on their uniforms was not likely a form of compelled speech). Indeed, Dresser puts forth no evidence to suggest that, even though every student at Bridger was required to wear the uniform, a person observing these similarly clad stu- dents would understand any of them to be expressing a per- sonal affinity for conformity. See id. at 1092. Dresser’s argument that Bridger’s uniform policy amounts to a form of “compelled speech” thus fails. Indeed, Bridger does not force Dresser to communicate any message whatsoever—much less one expressing support for confor- mity or community affiliation—simply by requiring him to wear the solid-colored tops and bottoms mandated by its uni- form policy. Accord Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 283-86 & n.8 (5th Cir. 2001). [24] In sum, we conclude that none of Plaintiffs’ speech- related rights were violated by the District’s mandatory school uniform policies and, thus, summary judgment in the Defen- dants’ favor on these claims was appropriate. III. Free Exercise Claims Plaintiffs next contend that the District’s uniform policies violated their First Amendment rights to free exercise of reli- gion. See U.S. Const. amend. I. Specifically, they claim that Liberty’s uniform policy unconstitutionally forbade Jacobs from wearing shirts expressing her religious beliefs and that Bridger’s refusal to grant Dresser an exemption from its uni- JACOBS v. CLARK COUNTY SCHOOL DIST. 5211 form policy unconstitutionally forced Dresser to violate the anti-conformity teachings of his religion. A. Jacobs’s Free Exercise Claim [25] Jacobs’s free exercise claim fails for the simple reason that both the Regulation and the school uniform policy Lib- erty implemented thereunder were “valid and neutral law[s] of general applicability” and, as such, did not implicate the Free Exercise Clause at all. See Employment Div., Or. Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993). There is no evidence in the record sug- gesting that Liberty was motivated to enact its uniform policy because its administrators “disapprove[d] of a particular reli- gion or of religion in general.” City of Hialeah, 508 U.S. at 532. Moreover, Liberty’s policy prohibits students like Jacobs from wearing message-bearing t-shirts not because Liberty feared students would undertake to do so for religious rea- sons, but because Liberty did not want students to encounter any clothing-related distractions during the school day. Id. Indeed, a school uniform policy like Liberty’s is the quin- tessence of a “neutral [rule] of general applicability.” Smith, 494 U.S. at 879. The policy applies to all students equally (regardless of the students’ religious beliefs), and it prohibits conduct (i.e., wearing clothing in colors and styles other than that prescribed by the uniform policy) that presents no obvi- ous impediments to the free exercise of any particular religion or religions. Thus, like other regulations that have been found to be “neutral” and “of general applicability,”43 the District’s 43 See, e.g, Smith, 494 U.S. at 890 (law prohibiting ingestion of peyote valid even as applied to those whose religions required use of peyote in religious ceremonies); Gillette v. United States, 401 U.S. 437 (1971) (Selective Service System valid even as applied to those whose religions opposed a particular war on religious grounds); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (Sunday-closing law valid even as 5212 JACOBS v. CLARK COUNTY SCHOOL DIST. Regulation (and the individual uniform policies it authorizes) do not implicate the Free Exercise Clause. B. Dresser’s Free Exercise Claim Although Dresser makes a somewhat different free exercise argument, our analysis is, in essence, the same. Dresser contends that his school arbitrarily denied him a religious exemption from its mandatory uniform policy and that this denial itself violated his free exercise rights. As the district court concluded, Dresser is correct that his school was not permitted to inquire into the validity or orthodoxy of Dresser’s religious beliefs when deciding whether or not to exempt him from its mandatory uniform policy. See Jacobs, 373 F. Supp. 2d at 1185 (citing Littlefield, 268 F.3d at 292- 93). The district court, however, already struck the religious exemption on this ground—an aspect of its decision neither party appeals. See id. [26] Thus, the only argument Dresser can make now (other than the argument that the district court’s remedy for curing the Regulation’s grant of “unfettered discretion” to school administrators impermissibly leaves the Regulation without any religious exemption whatsoever—an argument that is now moot)44 is that he is entitled to at least nominal damages applied to those whose religious practices compelled them to refrain from work on other days); Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor law valid even as applied to mother whose religion required her to use her children to dispense literature in the streets); cf., e.g., City of Hia- leah, 508 U.S. at 527, 535 (ordinance prohibiting anyone from “unneces- sarily kill[ing], torment[ing], tortur[ing], or mutilat[ing] an animal in a public or private ritual or ceremony” invalid because ordinance targeted a particular Santeria religious practice). 44 After striking the Regulation’s overly discretionary religious exemp- tion, the district court noted that it would be possible for the District to include a valid religious exemption in its Regulation as long as the exemp- JACOBS v. CLARK COUNTY SCHOOL DIST. 5213 based on Bridger’s prior refusal to grant him an exemption from its uniform policy. As explained in the previous section, however, the District’s school uniform policies are neutral laws of general applicability and, thus, even if Dresser’s beliefs about non-conformity were sincerely held and reli- gious in nature, see Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994), he had no right under the Free Exercise Clause to a religious exemption. Smith, 494 U.S. at 879. Accordingly, we conclude that the District’s mandatory school uniform policies infringed upon neither Jacobs’s nor Dresser’s free exercise rights.45 tion included “ ‘narrow, objective, and definite standards’ ” to constrain school administrator discretion. See id. at 1185 & n.7 (quoting Shuttles- worth v. City of Birmingham, Ala., 394 U.S. 147, 151 (1969)). Responding to this invitation, the District passed a re-revised regulation in August 2005, thus mooting Dresser’s objection to Bridger’s then-exemptionless school uniform policy. The District’s revised regulation is not before the court; thus, we express no opinion regarding its constitutionality or the constitutionality of a uniform policy lacking any religious exemption. 45 We reject Plaintiffs’ contention that Jacobs and Dresser raise “hybrid rights” claims that should be subjected to strict scrutiny. The “hybrid rights” doctrine has been widely criticized, see, e.g., City of Hialeah, 508 U.S. at 566-67 (Souter, J., dissenting) (explaining why doctrine is “ulti- mately untenable”); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (calling doctrine “completely illogical” and declining to recognize doctrine until Supreme Court expressly does so itself); Littlefield v. Forney Indep. Sch. Dist., 108 F. Supp. 2d 681, 704 (N.D. Tex. Aug. 3, 2000) (refusing to apply doctrine in school uniform case because entire doctrine is likely based upon a misreading of Smith, 495 U.S. at 881-82), aff’d 268 F.3d 275 (5th Cir. 2001); Erwin Chemerin- sky, Constitutional Law: Principles and Policies § 12.3.2.3 at 1215-16 (2d ed. 2002) (calling doctrine’s contours “unclear”), and, notably, no court has ever allowed a plaintiff to bootstrap a free exercise claim in this man- ner, see Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 557-58 (2004). We decline to be the first. 5214 JACOBS v. CLARK COUNTY SCHOOL DIST. IV. Due Process Claims Plaintiffs’ final contention is that their due process rights were violated because they were each made subject to a man- datory school uniform policy that was implemented without following the parental survey procedures included in the orig- inal Regulation.46 We first clarify that Plaintiffs are not making the due pro- cess argument typically made in school policy cases—i.e., that District schools disciplined students like Jacobs and Terry for violating the mandatory uniform policies without first con- firming, via “fundamentally fair procedures,” that the alleged violations actually occurred. Cf. Goss v. Lopez, 419 U.S. 565, 574 (1975) (recognizing need for procedural due process before student can be suspended and thereby deprived of her “legitimate entitlement to a public education” and her interest in her “good name, reputation, honor, [and] integrity”). Jacobs and Terry admit they violated their schools’ uniform policies and have never contended that they were disciplined—and, in Jacobs’s case, repeatedly suspended—without being given fair warning of the prohibited conduct or an opportunity to explain their behavior. See id. at 579. Instead, Plaintiffs make the novel argument that the District schools at issue violated due process when they acted in “complete defiance of their own regulations” and instituted 46 That Regulation required any school that chose to implement a uni- form policy to “survey all families at the school” and to only implement the policy if “at least fifty-one (51) percent of the surveys [were] returned [and there was a] seventy percent favorable response supporting school uniforms from the respondents.” According to Plaintiffs, Liberty initially implemented a uniform policy without conducting a parental survey at all, Garside did so despite failing to receive the required 51% response rate and 70% approval rate, and Glen Taylor did so by improperly aggregating a series of parental surveys so that the response and approval rates met the Regulation’s requirements. JACOBS v. CLARK COUNTY SCHOOL DIST. 5215 school uniform policies absent the requisite level of parental approval. [27] As the district court correctly concluded, however, even if the manners in which these District schools imple- mented their uniform policies violated the Regulation,47 they did not violate the Fourteenth Amendment. It has long been recognized that individuals have no due process right to par- ticipate in government policymaking. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 444-46 (1915) (due process not violated when taxpayer adversely impacted by new local ordinance was given no opportunity to be heard before ordinance was passed). Moreover, Plaintiffs provide no authority for their suggestion that a federal due process claim lies whenever a local entity deviates from its own procedures in enacting a local regulation.48 Accordingly, although it might be preferable for schools to seek parental approval before instituting controversial school policies, and it might be a violation of state law for schools not to do so if a local statute or regulation so dictates,49 the Due Process Clause in no way requires this. See id. at 445. 47 And perhaps even N.R.S. § 392.458 (authorizing Nevada school dis- tricts to implement uniform policies, but only “in consultation with . . . parents and legal guardians of pupils who are enrolled in the district”). 48 Of course, if the local rule itself were required by due process, then a federal due process claim would surely lie. See, e.g., United States v. James Daniel Good Real Prop., 510 U.S. 43, 62 (1993) (requiring a local- ity to “afford notice and a meaningful opportunity to be heard before seiz- ing real property subject to civil forfeiture”). Here, however, that is not the case. 49 See Jacobs v. Clark County Sch. Dist., No. CV-S-04-1490-RLH (D. Nev. Nov. 10, 2004) (order granting preliminary injunction because Plain- tiffs were likely to succeed on merits of state law statutory interpretation claims that District schools implemented mandatory uniform policies in violation of N.R.S. § 392.458 and the Regulation). 5216 JACOBS v. CLARK COUNTY SCHOOL DIST. CONCLUSION We thus affirm the district court’s grant of summary judg- ment in favor of the District. Neither the District’s Regulation nor the individual school uniform policies implemented there- under violate Plaintiffs’ free speech, free exercise, or due pro- cess rights. AFFIRMED. THOMAS, Circuit Judge, dissenting: Kim Jacobs wanted to wear a T-shirt to Liberty High School containing a message expressing her religious beliefs as a member of the Church of Jesus Christ of Latter-day Saints. When she did, she was suspended four times, for a total of twenty-five days, because the only messages allowed on shirts were those promoting the school.1 She alleges that she was penalized academically, suffered emotional harm, and eventually was forced to transfer to another school.2 1 The school policy stated that “Logos on tops will be excepted [sic] only if they are Liberty High School logos or designs.” The affidavit of Donald Jacobs states that he was told that “the sole reasons for imposing discipline on Kim was that her shirts with religious messages did not con- form to the Liberty School regulation that only allows pro-school mes- sages on shirts.” He further averred that he has “observed that other Liberty High School students wearing message bearing shirts, including those with slogans touting the school’s athletic teams, have not been disci- plined.” He stated that he “was told that since these messages promoted the school, they were acceptable under the policy.” The school has con- ceded that a design bearing a school logo with the universal “no” symbol through it (a circle with a diagonal line) would not be permitted under school policy. 2 Although there are other plaintiffs and other claims, I will focus ini- tially on Jacobs’ claim because it demonstrates my fundamental difference with the analysis adopted by the district court and the majority. JACOBS v. CLARK COUNTY SCHOOL DIST. 5217 The district court and the majority have determined, in very thoughtful opinions, that the school’s ban on her speech need only withstand intermediate scrutiny to pass constitutional muster, and that it does in this case. However, this conclusion directly conflicts with Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and Chan- dler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992). It also represents a substantial rewriting and undermin- ing of the First Amendment protections afforded by Tinker. Therefore, I respectfully dissent. I As everyone agrees, Chandler governs the analysis of stu- dent speech in our Circuit. Chandler establishes three catego- ries of student speech: (1) vulgar, lewd, obscene, and plainly offensive speech (analysis of which is governed by Bethel School District Number 403 v. Fraser, 478 U.S. 675 (1986)); (2) school-sponsored speech (analysis of which is governed by Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)); and (3) speech that does not fall into either of the first two categories (analysis of which is governed by Tinker). 978 F.2d at 529. Everyone also agrees that the speech at issue in this case does not fall under either of the first two categories. There- fore, under Chandler, the analysis must be controlled by Tin- ker. Id. However, rather than applying the plain terms of Chandler, the district court and the majority have imported and imposed a new analytical framework that cannot be rec- onciled with Supreme Court jurisprudence, or with ours. In examining student speech, the Supreme Court has con- sistently focused on the nature of the speech itself, as we rec- ognized in Chandler. Id. If vulgar, lewd, obscene, and plainly offensive speech is at issue, the Fraser analysis applies, and the governmental regulation is reviewed in that context. When 5218 JACOBS v. CLARK COUNTY SCHOOL DIST. school-sponsored speech is involved, the Hazelwood analysis applies. When issues of speech and other expressive conduct are involved, the Tinker analysis applies, and the governmen- tal action is reviewed in that context. Id. In short, under the Supreme Court’s analytical framework, and under ours, the initial inquiry is the character of the speech at issue. Only once that has been established do we examine the governmen- tal response. The government has, to my dismay, urged an approach— adopted by the district court and the majority—that amounts to little more than an analytical sleight of hand, a trick of mis- direction. Rather than examining the nature of the speech, the majority has instead decided that the focus should be on the regulation of the speech. If the regulation is content- and viewpoint-neutral, the majority reasons, then the type of expressive conduct at issue is irrelevant. In that instance, regardless of the type of speech involved, a deferential level of scrutiny applies. That reasoning, of course, is diametrically opposed to the teachings of Fraser, Hazlewood, and Tinker. One need only examine the facts of Tinker and Chandler to see the logical disconnect. In Tinker, the Supreme Court held that a school could not prohibit students from wearing black armbands. In Chandler, we held that a school could not prohibit students from wearing pro-teacher buttons. If we applied the Liberty High School uniform policy to those cases, that policy would have prohibited students in Tinker and Chandler from wear- ing those same armbands or buttons.3 However, under the 3 In fact, the assistant principal of Glen Taylor Elementary School informed another one of the plaintiffs in this case, Lona Finley, that her child’s button, stating “say no to uniforms” violated the school’s dress code as a “slogan or advertising on clothing which by [its] nature disrup- t[s] the educational setting.” One can imagine that the students in Tinker and Chandler would also have been so informed. Of course, Ms. Finley was also told that “[t]he standard student attire policy was not the reason Ms. Finley’s child was required to remove the button.” It was actually JACOBS v. CLARK COUNTY SCHOOL DIST. 5219 majority’s analysis, this would not have resulted in a constitu- tional violation because the regulations were content- and viewpoint-neutral. It is obvious that the majority’s holding cannot be reconciled with Tinker and Chandler. It is the char- acter of the speech, not the content of the governmental regu- lation that forms the framework of the First Amendment analysis in student speech cases. II The analysis of this case should have been conducted under Tinker. In Tinker, the Supreme Court confirmed a student’s right to free speech in public schools. In balancing that right against the state’s interest in maintaining an ordered and effective public education system, the Court declared that a student’s speech rights could only be curtailed if the speech: (1) would impinge on other students’ rights; or (2) would result in a “substantial disruption of or material interference with school activities.” 393 U.S. at 513-14. Here, there is no dispute that Kim Jacobs’ wearing of a T- shirt that contained pre-printed expressions of her religious faith would not impinge on the rights of other students. Nor is there any suggestion that her T-shirt could possibly have resulted in a substantial disruption or material interference with school activities. Plainly then, under the standard described in Tinker, the school’s lengthy suspension of Jacobs violated her First Amendment rights. because the metal pin fastener “presented a safety hazard and the button presented a disruption to the school environment.” Even if Ms. Finley’s child had selected a pin with the same slogan, but fastened it to his or her clothing with a “straight pin”—considered by Glen Taylor Elementary to be a safer option—the record still suggests that the button would be con- sidered impermissible as a “disruption.” This is clearly irreconcilable with Chandler and Tinker. The record also shows that students at the same school were allowed to wear shamrocks pinned on their shirts. 5220 JACOBS v. CLARK COUNTY SCHOOL DIST. III Even if we were to adopt the majority’s legal analysis and assume Tinker only applies to viewpoint- and content-neutral restrictions on student speech, the result in this case still can- not be sustained. The lynchpin of the majority’s reasoning— that Liberty High School had a viewpoint- and content-neutral regulation—is unsupported, even by the limited record at hand. The school prohibits all messages on clothing, except for messages that support the school. The literal language of the rule describes logos and designs,4 but the affidavits pro- vided in this case indicate that other messages were allowed, so long as they expressed pro-Liberty sentiments.5 Confining messages to pro-government content cannot be said to be viewpoint- or content-neutral. A regulation is con- tent based “if either the main purpose in enacting it was to suppress or exalt speech of a certain content, or it differenti- ates based on the content of speech on its face.” ACLU v. City of Las Vegas, 466 F.3d 784, 793 (9th Cir. 2006). Here, shirts with messages “touting the school’s athletic teams” are per- mitted, while a shirt bearing an anti-school spirit message would be prohibited. A policy that allows students to wear messages that express support of the school, while prohibiting messages that oppose school policy cannot be considered content-neutral: such a policy is indubitably content-based. Indeed, expressing anti-government sentiments constitutes paradigmatic political speech. Nor can a policy become content-neutral merely because each student is forced to adopt the message. Thus, on the face of this record, the Liberty High School policy cannot be considered viewpoint- or content- neutral. 4 Liberty High School’s “Campus Wardrobe Basic Guidelines” provide that “[t]ops must be solid color plan [sic] red, white or navy blue,” but that “[l]ogos on tops will be excepted [sic] only if they are Liberty High School logos or designs.” 5 For example, Jacobs’ father observed that shirts printed with “slogans touting the school’s athletic teams . . . were acceptable under the policy.” JACOBS v. CLARK COUNTY SCHOOL DIST. 5221 IV Even assuming the majority’s analysis is correct and inter- mediate scrutiny applies, the school uniform policies at issue here fail at step one of that analysis. As the majority agrees, a viewpoint- or content-neutral restriction on speech is consti- tutional if (1) “it furthers an important or substantial govern- ment interest;” (2) “the governmental interest is unrelated to the suppression of free expression”; and (3) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661-62 (1994) (inter- nal quotation marks omitted) (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). So what is the “important or substantial” government pur- pose here? It is not, as some have suggested in similar con- texts, to reduce socio-economic divisions. Rather, the state purpose of the school uniform and printed message ban is to promote “school spirit.” Assuming this is an important gov- ernment purpose—an assumption indeed—the majority neglects to consider whether the record demonstrates that the school uniform policy actually furthers this interest. The school argues that the imposition of mandatory school uniforms and the ban on expressive messages results in an improvement of the educational process in individual schools through increasing student achievement, promoting safety, and enhancing a positive school climate. There is no empirical evidence of this in the record, only conclusory affidavits filed by school officials. Indeed, the only empirical evidence in the record is that Kim Jacobs’ academic performance suffered as the direct result of the imposition of the speech ban.6 On this record, the governmental interest in promoting “school spirit” 6 While Kim Jacobs did manage to keep her grades up despite being sus- pended for twenty-five days, she was penalized for the in-class work she was forced to miss. 5222 JACOBS v. CLARK COUNTY SCHOOL DIST. cannot come close to outweighing Kim Jacobs’ First Amend- ment rights. V There are, of course, other issues in this case, and it is easy to be diverted by them. There is the broader question of free- dom of dress. See Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry and Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11 (2006). There are interesting and important questions about the legal difference between dress codes (which limit the uni- verse of clothing options) and mandatory uniform policies (which define the universe of clothing). There is the question of whether, following a Tinker analysis of Jacobs’ speech claims, her Free Exercise Clause claims should be subjected to strict scrutiny under a hybrid rights analysis. See Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999). All of these issues, and more, form part of the larger question of the con- stitutionality of mandatory school uniforms. However, in the present context, these are questions that need not be answered. The simple question for me is whether the district court and the majority properly rejected the tradi- tional Tinker analysis. Because I believe the law of our Cir- cuit mandates that Tinker applies, I would reverse the judgment of the district court and remand for a proper re- examination of the case under Tinker. I would not reach any of the other issues urged by the parties. For these reasons, I respectfully dissent.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2324035/	240 F.Supp.2d 768 (2002) Albert H. RUMPKE, Plaintiff, v. The RUMPKE CONTAINER SERVICE, INC., and Affiliates of Defined Benefit Pension Plan, Defendant. No. C-1-00-524. United States District Court, S.D. Ohio, Western Division. July 30, 2002. 770 Paul Henry Tobias, Tobias & Kraus-1, David Donald Kammer, Tobias, Krauss & Torchia, Cincinnati, OH, for Plaintiff. Louis Francis Gilligan, Keating Muething & Klekamp-1, Cincinnati, OH, for Defendants. ORDER SPIEGEL, Senior District Judge. This matter is before the Court on Plaintiffs Motion for Judgment on the Merits (doc. 31), See Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir.1998); Defendant's Response In Opposition and Cross Motion for Judicial Determination Affirming the Decision of the Plan Committee (doc. 33) and Plaintiffs Reply (doc. 36). Plaintiff, Albert Rumpke, Jr., filed a Complaint on June 28, 2000, alleging violation of Title 29 U.S.C. § 1132(b)(1)(a) entitled the Employee Retirement Income Security Act (hereinafter "ERISA")(doc. 1). Basically Plaintiff claims that he has been an employee of Defendant and thus is entitled to ERISA benefits, whereas Defendant claims that Plaintiff has been an independent contractor. Defendant filed an Answer on August 28, 2000 (doc. 4). Plaintiff moved for class certification on January 16, 2001 (doc. 8) to which Defendants filed a Memorandum in Opposition February 20, 2001 (doc. 9). The Court denied Plaintiffs Motion for class certification September 6, 2001 (doc. 27) based on Plaintiffs failure to meet the prerequisites of Fed.R.Civ.P. 23(a). Plaintiff filed the instant Motion on April 1, 2002 (doc. 31). Defendant filed its Response on May 1, 2002 (doc. 33); and Plaintiff filed its Reply on May 31, 2002 (doc. 36). In order to properly analyze the issue before the Court, a review of the relevant factual issues of this ease is required. The following facts have been derived from the various pleadings, motions, and the administrative record in this case. The Rumpke Company (hereinafter, "Rumpke") is a family business that began operations in 1932 (doc. 31). The purpose of this business is waste disposal. The structure of this business entity is at the heart of this litigation. The customers of Rumpke are serviced by thirty-five route supervisors. These route supervisors are given a commission by Rumpke based on gross revenues and are responsible for all business conducted within an assigned geographic area (doc. 31). Approximately eight hundred drivers operate under the supervision of these route supervisors and are responsible for the actual waste collection within each assigned geographic region. 771 Defendant contends that the route supervisors are independent contractors and that the drivers are employees of these route supervisors (doc. 33). Plaintiff contends that these route supervisors as well as their drivers are common law employees of Defendant and as such are entitled to participation in Defendant's pension plan created pursuant to the provisions of ERISA (doc. 31). Defendant denies this contention and asserts that since these route supervisors are independent contractors, Defendant is under no obligation to allow either the route supervisors or their employees to participate in its ERISA Plan (doc. 33). Plaintiff worked as a route supervisor for Defendant from 1972 until 1989 (doc. 1). In this capacity, Plaintiff supervised a crew that operated trash collection trucks, as did all such route supervisors (Id.). Plaintiff contends that he also operated such trucks on his own (Id.). Defendant owned and maintained all the trucks that the route supervisors and their drivers operated (Id.). Defendant also paid for all the gas used and provided insurance for all of the trucks either used or supervised by the route supervisors (Id.). In his Complaint, Plaintiff asserts that Defendant kept all of the company's books and was responsible for billing Rumpke customers. There is no evidence of any written contracts between Defendant and the route supervisors (doc. 33). Furthermore, Defendant contends that a number of the route supervisors have incorporated business entities to administer their routes and have established their own ERISA plans, 401(k) plans, and health plans for their employees (doc. 33). The route supervisors are also responsible for hiring and firing the employees who work their routes (Id.). These employees are paid from the commissions that the route supervisors receive (Id.). Plaintiff contends that Defendant wrongfully misclassified Plaintiff as an independent contractor instead of an employee (doc. 31). According to Plaintiff, even though he was classified as independent contractor, he met the requirements for consideration as a common law employee, and as such, was entitled to participate in Defendant's ERISA pension plan (Id.). STANDARD OF REVIEW The Court must first consider the appropriate standard of review to apply in this case and the corresponding deference which is due to the Plan Administrator's determination that Plaintiff was an independent contractor during the period in question. Plaintiff contends that the appropriate standard of review in this case is de novo (doc. 31). Defendant disputes this assertion and contends that since the Plan in this case affords the Committee complete discretion over interpretation and administration of the Plan, an arbitrary and capricious standard should apply (doc. 33)(citing Leahy v. Trans Jones, Inc., 996 F.2d 136, 139-40 (6th Cir.1993)); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir.1991). Defendant is correct in its assertion that the Plan in this case gives the Committee the discretion over interpretation and administration of this Plan (doc. 33). Plaintiff makes two arguments, however, which convince this Court that de novo review is nonetheless appropriate. First, the question of whether a person is an employee or an independent contractor is a question of law. Berger Transfer & Storage v. Central States, 85 F.3d 1374, 1377 (8th Cir.1996)("The standard of review has been well expressed as follows: The existence and degree of each fact is a question of fact while the legal determinations to be drawn from those factswhether workers are employees or independent contractorsis a question of law."). Courts give no discretion to 772 administrators for legal determinations. Penn v. Howe-Baker Eng'rs Inc., 898 F.2d 1096 (5th Cir.1990). Second, there is evidence that there is a conflict of interest as the owners of this business were also the Plan administrators who made the determinations in this case. In conflict of interest cases, review is de novo. Kotrosits v. GATX Corp., 970 F.2d 1165 (3d Cir.1992). Therefore, the Court has concluded that a de novo review is appropriate in this case. At a very minimum, de novo review is appropriate as to the legal determination as to whether Plaintiff was indeed an employee or independent contractor. The determination of whether a particular individual is a common law employee is a factual determination made by looking at over thirteen factors. Nationwide Mutual Ins. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). There the Supreme Court stated: In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and the means by which the product is accomplished. Among the other factors relevant to this inquiry are the skills required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Id. at 323-24, 112 S.Ct. 1344. Plaintiff argues that a number of factors dictate a determination by this Court that Plaintiff was a common law employee. The Court will now analyze these factors in turn. The Supreme Court has traditionally looked for guidance in its analysis to the Restatement of Agency. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752 n. 31, 109 S.Ct. 2166, 104 L.Ed.2d 811. This Court will do the same. ANALYSIS Skills Required and the Source of Instrumentalities and Tools Work that does not require extensive education or skill is a factor indicating the relation of employer-employee. Restatement (Second) of Agency § 220(2)(h). As a route supervisor, Plaintiffs duties were driving trucks, picking up and dumping garbage, and supervising a work crew of drivers that picked up garbage from residential and commercial customers (doc. 31). Plaintiff argues that these tasks were all relatively low skilled (Id.). Defendant provided or required training for new drivers, which demonstrated company control and a lack of independence of skills by route supervisors and drivers. Defendant offered no evidence demonstrating that Plaintiffs job required skills demonstrating an independent trade or profession nor prior training or experience. The Court concludes that this factor weighs in favor of classifying Plaintiff as an employee. The fact that a hiring party furnishes significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship. Restatement (Second) of Agency § 220(2)(k). Defendant supplied the trucks, fuel, maintenance, safety equipment, waste containers, and office supplies for the route supervisors (doc. 31). There was no capital investment required by Plaintiff, and Defendant told Plaintiff that he could not purchase his own trucks, but that the company would provide them (Id). The 773 trucks were all labeled with the name of the Rumpke Company (Id.). The Court finds that this factor likewise weighs in favor of classifying Plaintiff as an employee. Location of Work Control over an employee is indicated when work is performed on the premises of the hiring party or when the worker can be compelled to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required. Restatement (Second) of Agency § 220(2)(h). In this case, part of Plaintiffs workday was on the company-owned landfill and part of the day was in the main office (doc. 31). Up until 1984, Plaintiff was required to report into the main office everyday; after that time he was required to report in twice weekly but call in daily (Id.). Plaintiff was assigned a mailbox in Defendant's office that would contain notes, new starts, cancellations, missed stops, and the like (Id.). Often Plaintiff was required to see Bill Rumpke, the head of the company, who would tell Plaintiff, for example, to go back and pick up garbage from a missed stop (Id.). The company told Plaintiff on which days he should collect from customers (Id.). The Court finds that Defendant exercised significant control over the direction, scheduling, and timing of off-premises activities. This fact, combined with the requirement that Plaintiff report regularly to the company and spend a part of his day at the Rumpke landfill, indicates that Plaintiff was an employee. Duration of the Relationship A continuing relationship between a worker and the hiring party indicates that an employer-employee relationship exists. Restatement (Second) § 220(2)(j). There is no question that Plaintiff steadily served Defendant as a route supervisor for about sixteen years (doc. 36). This indicates that Plaintiff was an employee. The nature of the relationship is further demonstrated to be one of employment when the hiring party maintains a right to discharge the worker, and the worker maintains the right to terminate the relationship without incurring liability. See Rev. Rul. 87-41, 1987-1 C.B. 296, 298-99 (examining the common law rules for determining employment status). An independent contractor, by contrast, cannot be fired so long as he produces a result that meets contract specifications, and cannot terminate the relationship without risking breach of contract. See id. During the years of Defendant's relationship with Plaintiff, Defendant reserved the right to discharge Plaintiff at any time, and threatened termination of Plaintiff upon occasion (doc. 31). Plaintiff was also told that he could leave at any time (Id.). The Court therefore finds that Plaintiffs relationship with Defendant was one of a long-term, at-will employee, as opposed to an ad hoc, per project, definite duration contractor. The Hiring Party's Right to Assign Additional Projects and the Extent of Hiring Party's Discretion Over When and How Long to Work The right of a hiring party to assign additional projects to a worker is another indicator of control over the worker demonstrating the worker is an employee. See Rev. Rul. 87-41, 1987-1 C.B. 296; Dumas v. Gommerman, 865 F.2d 1093, 1105 (9th Cir.1989). Defendant assigned additional projects to Plaintiff: collecting second bills, advertising, inspecting trucks, training, and administering tests (doc. 36). These additional assignments indicate an employment relationship. The establishment of set hours of work by the hiring party is another indicator of control. See Rev. Rul. 87-41, 1987-1 C.B. 296. Defendant set the days when trash pickups would take place (doc. 31). Defendant 774 spoke with Plaintiff about his employees arriving too late at the landfill (Id.). Defendant gave Plaintiff minimum starting times and earliest reporting times (Id.). These facts indicate Defendant's control over Plaintiff as an employee. The Method of Payment Payment on a straight commission or by the job generally indicates that a worker is an independent contractor. Payment by the hour, week, or month generally points to an employer-employee relationship. See Rev. Rul. 87-41, 1987-1 C.B. 296; Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 574 (8th Cir.1984). Plaintiff asserts that though he was paid by commission, a number of factors in his case militate against the determination that he was an independent contractor. First, he says that Defendant's control of the instrumentalities and tools, and refusal to yield such control to Plaintiff, resulted in a reduced commission (doc. 31). Plaintiff argues that if he were truly an independent contractor he could have provided such instrumentalities himself and increased his commission (Id.). Second, Plaintiff argues that Defendant had such control over his route, that it could, and did increase or decrease the route size at will, which directly increased or decreased Plaintiffs compensation (Id.) Plaintiffs arguments concerning compensation are well-taken. Defendant exercised enough flexible control over Plaintiffs payment to cast doubt upon the label of such payment as pure commission. Defendant ultimately reserved control over Plaintiffs payment. The Court therefore concludes that this factor also indicates an employer-employee relationship. The Hired Party's Role in Hiring and Paying Assistants When a worker hires, supervises, and pays assistants pursuant to a contract under which worker is responsible for the attainment of a result, this factor indicates independent contractor status. See Rev. Rul. 87-41, 1987-1 C.B. 296. When the party who hires a worker supervises and pays the worker's assistants, this factor shows control over all the workers on the job and indicates that the worker is an employee. Though route supervisors hired, paid, and fired assistant drivers, Defendant retained a high degree of control over those drivers. Defendant set forth in writing and maintained a hiring system over which Plaintiff had no control (doc. 31). Defendant dictated wage levels for new hires and retained the right to discipline and terminate Plaintiffs drivers (Id.). The company even reinstated a driver under Plaintiff whom Plaintiff had purportedly terminated (Id.). The Court finds that the company's role in hiring and paying Plaintiffs assistants demonstrates that Plaintiff and drivers were employees of Defendant. Whether the Work is Part of the Regular Business of the Hiring Party The integration of the worker's services into the business operations of the hiring party generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business. See United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947). The collection, hauling, and disposal of garbage is part of the regular business of Defendant. Plaintiffs job was highly integrated into the business operations of the company. As such, Defendant's control over Plaintiff indicates an employment relationship. 775 The Provision of Employee Benefits The providing of employee benefits is an indication of an employment relationship. See, e.g., Restatement (Second) § 220(2)0). Benefits are evidence of longer-term employment and are a form of compensation that is not tied to a commission or the completion of a particular project. Plaintiff was a participant in Defendant's health care plan (doc. 31). Other route supervisors were also members of the plan as were many drivers (Id.). Defendant states that Plaintiff was a "member" of the plan who was required to pay the company the premium cost to obtain coverage and not a "covered employee" to whom coverage was provided at no cost as an employee benefit (doc. 33). Defendant states that it was an error to have provided access to the health insurance plan to its workers classified as subcontractors, and that it has discontinued the practice (Id.). Plaintiff, in contrast, produced a card issued to him indicating that he was a "covered employee" (doc. 31). Plaintiff states that the health plan by its terms was only open to employees (doc. 36). A hiring party would generally not provide access to a health care plan to an independent contractor. Thus the Court concludes that Plaintiffs access to a health care plan is evidence of an employment relationship. The Tax Treatment of the Hired Party The tax treatment of the worker can also shed light upon the nature of the relationship between the hiring party and the worker. See, e.g., Short, 729 F.2d 567, 574. Despite the company's treatment of Plaintiff as an independent contractor, the Court finds persuasive Plaintiffs arguments that upon specific request to the IRS by filing a form SS-8, it was determined in 1992 that Plaintiff was an employee (doc. 31). The IRS found that Plaintiff was an employee of Defendant because, among other reasons, the truck and equipment were supplied by Defendant; Plaintiff operated under Defendant's name; Defendant reserved the right to discharge Plaintiff at any time without incurring liability; Defendant had right to control and direct Plaintiffs work; and Plaintiffs services were performed under Defendant's instruction and training (Id.) The Court finds the 1992 determination of the IRS to be persuasive. Such determination indicates that Defendant's classification of Plaintiff as an independent contractor was in error. Right to Control Manner and Means The final Darden consideration is overarching and is informed by all of the preceding factors. When the factors taken together indicate that the hiring party possesses control over the manner and means by which the product is accomplished, then the worker is classified as an employee. When the worker operates autonomously to produce the product, the worker is an independent contractor. In this case, Defendant "owned" the customer routes, not Plaintiff. Defendant owned the trucks and equipment by which the product of waste disposal was physically accomplished. Defendant controlled the management of the route supervisors' routes by reserving the right to change routes, set days and times of services, providing written work instructions, disciplining drivers, and by impeding Plaintiff from operating an outside business. Defendant's control over the manner and means of its waste disposal business shows that the route supervisors within its company were employees. The common law test to determine whether an individual qualifies as an "employee" provides no "shorthand formula or magic phrase that can be applied to find the answer,... all of the incidents of the relationship must be assessed and *776 weighed with no one factor being decisive." Darden, 503 U.S. at 324, 112 S.Ct. 1344, citing NLRB v. United Insurance Co. of America, 390 U.S. 254, 258, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). It is of no consequence that Plaintiff was designated "independent contractor" when his relationship with Defendant was that of an employee. See Rev. Rul. 87-41, 1987-1 C.B. 296. The Court concludes after its de novo review of the administrative record in light of the Darden factors that Plaintiff was an employee. CONCLUSION Therefore, having reviewed the administrative record, the Court hereby GRANTS Plaintiffs Motion for Judgment on the Merits (doc. 31) and DENIES Defendant's Cross Motion for Judicial Determination Affirming the Decision of the Plan Committee (doc. 33). SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2792360/	State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: April 9, 2015 518559 ________________________________ In the Matter of the Claim of JONATHAN GAGER, Respondent. GANNETT SATELLITE INFORMATION NETWORK, INC., Doing MEMORANDUM AND ORDER Business as PRESS AND SUN BULLETIN, Appellant. COMMISSIONER OF LABOR, Respondent. ________________________________ Calendar Date: February 10, 2015 Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ. __________ Bond, Schoeneck & King, PLLC, Syracuse (L. Michael Zinser of Zinser Law Firm, Nashville, Tennessee, admitted pro hac vice), for appellant. James W. Cooper, Warrensburg, for Jonathan Gager, respondent. Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent. Satterlee Stephens Burke & Burke LLP, New York City (Mark A. Fowler of counsel), for New York News Publishers Association, amicus curiae. __________ -2- 518559 Lynch, J. Appeals from two decisions of the Unemployment Insurance Appeal Board, filed May 30, 2013, which ruled, among other things, that Gannett Satellite Information Network, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Claimant delivered newspapers for Gannett Satellite Information Networks, Inc. under four separate contracts from March 2004 until September 2009. Gannett has appealed from two Unemployment Insurance Appeal Board decisions finding that claimant was an employee entitled to benefits, for which Gannett was liable for unemployment insurance contributions. The indicia of control retained by Gannett through the agreements with claimant are nearly identical to the factors identified to establish an employment relationship in Matter of Armison (Gannett Co., Inc.-Commissioner of Labor) (122 AD3d 1101 [2014], lv dismissed 24 NY3d 1209 [2015]). Accordingly, we find that the Board's decisions are supported by substantial evidence (see Matter of Travis [Gannett Satellite Information Network, Inc.- Commissioner of Labor], ___ AD3d ___ [decided herewith]; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 AD3d 1166, 1167-1168 [2015]). Lahtinen, J.P., Garry and Devine, JJ., concur. ORDERED that the decisions are affirmed, without costs. ENTER: Robert D. Mayberger Clerk of the Court	01-03-2023	04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897342/	JERRY PHILLIP V. THE STATE OF TEXAS NO. 07-07-0417-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 14, 2008 ______________________________ JERRY DEEANN PHILLIP AKA JERRI DEEANN JONES AKA JERRY DEEANN (JONES) SMITH AKA JERRY DEANNETTE SMITH, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY; NO. 98336; HONORABLE LAYNE WALKER, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINIONAppellant Jerry Deeann Phillip appeals from the judgment revoking her deferred adjudication community supervision, adjudicating her guilty of the offense of aggravated assault and sentencing her to 25 years of confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and certifies that there are no non-frivolous issues to appeal. Agreeing with appointed counselâs conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial courtâs judgment. Â Â Â Â Â Â Â Â Â Â In August 2006, appellant was indicted for aggravated assault with a deadly weapon. In May 2007, pursuant to a plea agreement, appellant plead guilty as charged in the indictment, and, in June 2007, received deferred adjudication community supervision for a period of five years, and a fine of $1000. Appellantâs deferred adjudication was conditioned on her compliance with specified terms and conditions. Â Â Â Â Â Â Â Â Â Â In August 2007, the State filed a Motion to Revoke Unadjudicated Probation, alleging four violations of the terms of appellantâs deferred adjudication community supervision. This motion was heard by the court in September 2007. Appellant plead âtrueâ to three of the Stateâs allegations. The court heard evidence from appellant that she failed to report or pay as required by the terms of her community supervision. Â Â Â Â Â Â Â Â Based on appellantâs pleas of âtrue,â the court revoked appellantâs community supervision, adjudicated appellant guilty of aggravated assault as alleged in the August 2006 indictment and assessed appellantâs punishment at 25 years of confinement in the Institutional Division. The court certified appellantâs right of appeal, and she timely filed notice of appeal. Â Â Â Â Â Â Â Â Â Â Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which he certifies that he has diligently reviewed the record and, in his professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds on which a non-frivolous appeal can arguably be predicated. The brief discusses the procedural history of the case and the proceedings in connection with the motion to adjudicate guilt. Counsel discusses the applicable law and sets forth the reasons he believes there are no arguably meritorious issues on which to appeal. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of her right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd). By letter, this Court also notified appellant of her opportunity to submit a response to the Anders brief and motion to withdraw filed by her counsel. Appellant has not filed a response. The State has filed a response indicating its agreement with counselâs conclusion. Â Â Â Â Â Â Â Â Â Â Â In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.âSan Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).Â Â Â Â Â Â Â Â Â Â Â We agree with counsel that the record provides no reason to doubt that appellant freely, knowingly, and voluntarily entered her pleas of âtrueâ to three of the allegations contained in the Stateâs motion to revoke. A plea of âtrueâ to even one allegation in the Stateâs motion is sufficient to support a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.âSan Antonio 2006, pet. denied). Â Â Â Â Â Â Â Â Â Â Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal from the revocation, adjudication of guilt and sentence. We agree it presents no arguably meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Do not publish. ay notice provision is to encourage pre-suit negotiations so as to avoid the cost of litigation, De Checa, 852 S.W.2d at 938, and the requirement of that notice is mandatory, Schepps, 652 S.W.2d at 938. The effect of the abatement is to keep the defendant free of litigation during the abatement period. See America Online, Inc. v. Williams, 958 S.W.2d 268, 277 (Tex.App.-- Houston [14th Dist.] 1997, no pet.) (distinguishing between adding other defendants during the abatement period and certifying a class which added thousands of plaintiffs with a claim against a defendant). We are disturbed by the fact that, if an abatement for failure to give the required notice under the act automatically extends the deadline for filing the medical expert report, a plaintiff would in fact be rewarded with additional time for the filing of his report by his failure to comply with the statutory notice requirement. In other words, a health care provider would be placed in the position of having to choose whether to seek an abatement for the failure of the plaintiff to give him the statutorily required 60-day notice or to hold the plaintiff to the statutorily required deadline for filing the expert report. We cannot believe that the intent of the legislature to discourage frivolous lawsuits and encourage settlement of claims would be served by such a construction, since the legislature has determined that failing to timely file an expert report means that the claim is either frivolous or at best has been prematurely brought. See American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). Moreover, we fail to see how the claimant is damaged by being required to adhere to the statutory requirement. The plaintiff to some extent chooses when to file his lawsuit and, at the time of filing, knows he has 180 days to file his expert medical report. The trial court also has authority to extend the deadline for an additional 30 days upon a showing of good cause or that the failure of a claimant's attorney to file the report was the result of an accident or mistake. Article 4590i § 13.01(f) and (g). Without reaching a decision as to whether a medical expert report could be filed during the abatement period if the 180-day deadline occurred during that time, or the effect of a stay mandated under some other provision of the Texas statutes, we believe that, under the facts before us, the medical expert report was untimely filed. Thus, we sustain Hagedorn's first issue and overrule Tisdale's second issue. In his third issue or cross-point, Tisdale argues that the trial court erred in concluding that the expert report of Dr. Michael A. Mitchell did not constitute a good faith effort to comply with the requirements of article 4590i. In opposition, Hagedorn asserts in his second issue that the trial court did not err in its conclusion. We review the trial court's ruling under an abuse of discretion standard. Palacios, 46 S.W.3d at 878. That test is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operator, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). A trial court may grant a motion challenging the adequacy of an expert report only if it appears, after hearing, that the report does not constitute a good faith effort to comply with the definition of an expert report. Article 4590i Â§ 13.01(l). An "expert report" is defined as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. Â§ 13.01(r)(6). While the report does not have to present all the plaintiff's proof, it must include the expert's opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878. The report must inform the defendant of the specific conduct being questioned and provide a basis for the trial court to conclude the claims have merit. Id. at 879. A report that merely states conclusions about the standard of care, breach, and causation is not sufficient. Id. Nevertheless, the report does not have to meet the same requirements as the evidence offered in support of a summary judgment proceeding or at trial. Id. One basis upon which Hagedorn attacked the report was that it failed to show Dr. Mitchell's qualifications. A person may qualify as an expert witness on the issue of whether a physician departed from accepted standards of medical care only if the person is a physician who (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose, (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, and (3) is qualified on the basis of training or experience to offer an expert opinion regarding the accepted standards of medical care. Article 4590i Â§ 14.01(a). In determining whether the expert is qualified on the basis of training or experience, the court is to consider whether, at the time the claim arose or the testimony is given, the witness is board certified or has other substantial training or experience in an area of practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. Â§ 14.01(c). Tisdale was treated in the emergency room of University Medical Center by Hagedorn after falling about six feet off a scaffold. Hagedorn ordered x-rays of the spine, chest and pelvis, which showed bone spurs in the spine, but no fractures or abnormalities in the chest. Tisdale's wounds were cleaned and sutured. At the time he was to be discharged, he complained of the inability to move his legs. Hagedorn then ordered a CT scan of the neck and head and a cervical MRI was also performed, which showed a contusion and swelling of the spinal cord. Tisdale underwent surgery and claims he is now a quadriplegic. Hagedorn argues that neither Dr. Mitchell's report or his curriculum vitae show the requisite knowledge of accepted standards of medical care for the diagnosis, care, or treatment of a suspected spinal cord injury due to a fall or the qualifications to express an opinion on causation. Specifically, it fails to show any training or experience in rendering emergency medical care in general or emergency care for a suspected spinal cord injury. In response, Tisdale claims that Dr. Mitchell is board certified in family medicine and geriatrics and is certified as an instructor in advanced trauma life support and advanced pediatric life support. He is also supervising physician/medical director at a rural health clinic in Holliday, Texas. Tisdale further points to Dr. Mitchell's years of private practice in medicine and his period of employment as medical director at the Oklahoma Department of Corrections. He posits that we should focus on the condition involved in the claim, rather than Dr. Mitchell's particular area of expertise. Every licensed doctor is not automatically qualified to testify as an expert on every medical question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). On the other hand, the fact that an expert is not a specialist in the particular branch of the profession for which the testimony is offered will not automatically disqualify him as an expert. Blan v. Ali, 7 S.W.3d 741, 745 (Tex.App.--Houston [14th Dist.] 1999, no pet.). The issue is the specific subject matter and the expert's familiarity with it. See Heise, 924 S.W.2d at 153; Ali, 7 S.W.3d at 745. As already noted, there are specific criteria to be met under the Medical Liability and Insurance Improvement Act for an expert to testify as to whether a physician departed from accepted standards of medical care. Applying those criteria to Dr. Mitchell, it appears from his resume that he was practicing medicine both at the time the report was prepared and at the time the claim arose; however, that practice appears to be a general one. The only indication that he has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the injury sustained is his certification in advanced trauma life support and his statement that a failure to palpate the neck following negative x-rays and to maintain in-line mobilization while doing so will result in immediate failure in advanced trauma life support training. There is no indication Dr. Mitchell has ever practiced in emergency medicine, trauma, or the treatment of spinal injuries, and he does not state that he has knowledge of the accepted standards of medical care for the diagnosis, care and treatment of traumatic spinal injuries. Even if Dr. Mitchell's qualifications were sufficient, Hagedorn also challenges Dr. Mitchell's report on the basis that it does not represent a good faith effort to provide a fair summary of the standard of care, breach, and causation. In his report, Dr. Mitchell is critical of Hagedorn in several areas: 1) removal of stabilization devices, 2) prescribing Valium and Demerol, 3) the failure to make a neurological evaluation or if one was made to document it, and 4) the delay in re-evaluating the patient for 25 minutes after being notified that he could not move his legs. For each of these complaints, Dr. Mitchell was required to state the standard of care, identify the breach of that standard, and demonstrate causation. Dr. Mitchell opined that Tisdale's "condition was worsened by having stabilization devices removed before they should have been removed." The standard of care was arguably described in the following excerpt: Palpation of the neck for tenderness should be done following negative x-ray examination. In-line stabilization is maintained while the cervical spine ispalpated for tenderness, spasm or deformity. Failing to perform this is criteria for immediate failure in Advanced Trauma Life Support training. Immobilization is also maintained in some manner during palpation of the thoracic and lumbar spine. However, Dr. Mitchell asserts that, "[b]y the record, I must assume that Mr. Tisdale's immobilization devices were removed early on in his evaluation." Even though Dr. Mitchell opines that the condition was worsened by the stabilization devices being removed before they should have, he is not able to say when they were removed and only "assumes" they were removed early. He also claims that at the time of admission to the emergency room, the patient only complained of pain in his legs, and therefore "[s]omething must have happened in the intervening period of time to produce the paresis" and, in his opinion, that occurred due to "the immobilization devices being removed and the patient being moved around repeatedly over a rather extended period of time." This opinion is based on one assumption or conclusion built upon another, which is not sufficient to show a breach of the standard of care. He also fails to state how the immobilization would have prevented or impeded the bleeding and swelling from a contusion. With respect to the prescribing of Valium and Demerol, Dr. Mitchell states the following: I also believe that the ER physician strayed from the standard of care in giving Valium twice while in x-ray. This medication could potentially have covered up muscle spasms or subtle strength differences, which may have been important findings in leading the physician to the conclusion that a neurological injury probably existed. Demerol would have further compromised the ongoing exam by covering up both pain and spasms. These meds should not have been given until it was reasonably certain that no neurological or internal injuries existed. In his summary on this complaint, he states, "[f]rom my review of the chart, I see no reason for him to have been sedated with the Valium and Demerol. This may have also delayed proper diagnosis and treatment." Although once again Dr. Mitchell arguably states the standard of care, he can only say that Valium could potentially cover up symptoms which may have been important and that proper treatment may have been delayed by the Valium and Demerol. He does not state that any delay alone, even if it occurred, caused Tisdale's injuries, except as it is related to the assumed failure to maintain stabilization. The third complaint is a failure to either perform or document the performance of a neurological examination. If a neurological exam was performed but not documented, Dr. Mitchell does not explain how that lack of documentation resulted in the injuries to the patient. With respect to the actual failure to perform a neurological examination, Dr. Mitchell states as follows: Any patient with neurological deficits should be considered to have an unstable spinal injury. Neurological evaluation should have been carried out initially and then repeated at intervals throughout his time in ER and X-ray. By documentation, this was not done and is outside the current standard of care. Had a neurological deficit been noted, immobilization should have been continued and early consultation by neurology or neurosurgery should have been carried out. It is outside current standard of care for neurological injury to be picked up at discharge from the ER. Although Dr. Mitchell furnishes the standard of care and opines that a breach occurred, he does not state how this failure resulted in the injuries. He does not claim that the patient would have exhibited neurological deficits if the exam had been performed, nor does he state that any delay resulting from the failure to perform this examination caused Tisdale's injuries, except as it relates to the assumed failure to maintain immobilization devices. As to the delay in evaluation of the patient after he complained of not being able to move his legs, Dr. Mitchell only says that it "distresses" him that Hagedorn was notified of the patient's condition but did not examine him until 25 minutes later. He states, "I certainly think this appears to be inappropriate." Neither a standard of care nor causation is provided in this statement. As our analysis shows, the report fails to provide a fair summary for each of the three required elements, i.e., the standard of care, breach, and causation for each asserted complaint. Based on this record, we cannot say that the trial court abused its discretion in finding that the expert report did not constitute a good faith attempt to provide a fair summary of the required elements. We sustain Hagedorn's second issue and overrule Tisdale's third issue. Having found no abuse of discretion in the court's findings as to the lack of timeliness of the filing of the expert report and the sufficiency of that report, we must address both Hagedorn's contention that the trial court should have dismissed the cause with prejudice, as well as Tisdale's claimed error in the award of attorney's fees. The statute provides that on the failure of the claimant to timely furnish the expert report, the trial court shall on the motion of the physician enter an order awarding sanctions against the claimant or the claimant's attorney, those sanctions being the reasonable attorney's fees and costs of court, the forfeiture of any cost bond, and the dismissal of the action of the claimant against the defendant with prejudice to the refiling of the claim. Article 4590i Â§ 13.01(e). As noted, the language of the statute contains the word "shall" as opposed to "may." It has been held that the trial court is required to dismiss with prejudice on the motion of the defendant when the statutory 180-day period has passed without a proper report being filed. Palacios, 46 S.W.3d at 880. The trial court's stated reason for not dismissing the case with prejudice was that the complainant had already non-suited his cause. However, we have determined that the trial court still maintained jurisdiction to consider Hagedorn's motion to dismiss in spite of the non-suit, and therefore the court had the authority to award the sanctions provided by statute. See Clearwater Constructors, 788 S.W.2d at 908. The legislature provided for a dismissal with prejudice, and the complainant should not be able to escape the legislated sanction by filing a non-suit without prejudice one week prior to the court's scheduled hearing on the health care provider's motion to dismiss and prior to entry of the court's order. We therefore believe that the trial court should have granted the dismissal with prejudice. Accordingly, we sustain Hagedorn's issue on this matter. Having also found that the award of attorney's fees was warranted, we will address Tisdale's contention that there is no competent evidence to support the amount of attorney's fees, i.e., the evidence is legally and factually insufficient. The statute provides for the award of reasonable attorney's fees. The amount of an award of an attorney's fee is within the discretion of the trial court. Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 556 (Tex.App.--Austin 1999, pet. denied). To determine legal sufficiency, we must examine the record for any probative evidence, which when viewed in the light most favorable to the judgment, supports it. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In our review of the factual sufficiency, we examine the record to determine if there is some probative evidence to support the finding and if in light of all the evidence the finding is not manifestly unjust. Id. Jim Hund testified that he represented Hagedorn in the case, had been in practice since 1983, and was board certified in civil trial law. As of the time of the hearing, $11,690 in attorney's fees had been incurred in the case. Hund stated that his hourly rate was $150 per hour, another attorney who had worked on the case had a rate of $125 per hour, and the two paralegals who worked on the case were billed at $65 and $60 per hour. He further stated that all of the fees incurred were reasonable and necessary in the representation of his client. Upon questioning by the court, Hund affirmed that he had taken the hourly rate of each person working on the case, multiplied them by the hours worked by each individual, and added them together to arrive at the sum of $11,690. Tisdale contends there is no evidence as to the amount of time that counsel spent in defending the claims or that he was precluded from other employment by that representation, no evidence as to the fees customarily charged in the locality for similar legal services, or time limitations imposed upon counsel by the client. The reasonableness and necessity of attorney's fees is shown by evidence that the fees were incurred while in litigation with the party sought to be charged with the fees on a claim which allows the recovery of such fees. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Factors to be considered by the court in determining the amount include (1) the time and labor required, novelty and difficulty of the question presented, and the skill required, (2) the likelihood that acceptance of employment precluded other employment, (3) the fee customarily charged for similar services, (4) the amount involved and the results obtained, (5) the time limitations imposed by the client or the circumstances, (6) the nature and length of the professional relationship with the client, (7) the experience, reputation, and ability of the lawyer performing the services, and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). While these are factors that may be considered, the court is not required to receive evidence on each of those factors. The court can also look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. Chilton Insurance Co. v. Pate & Pate Enterprises, Inc., 930 S.W.2d 877, 896 (Tex.App.--San Antonio 1996, writ denied). The court is required to determine the nature and extent of the services performed, which is typically expressed by the number of hours and the hourly rate. Pitts v. Dallas County Bail Bond Bd., 23 S.W.3d 407, 413-14 (Tex.App.--Amarillo 2000, pet. denied), cert. denied, ___ U.S. ___, 121 S. Ct. 1094, 148 L.Ed.2d. 967 (2001). However, there is no rigid requirement that both facts must be in evidence for such a determination to be made. In this instance, the court had testimony as to the total amount of fees claimed, as well as the hourly rate for each person working on the case. The court also had testimony that the amount claimed had been arrived at by multiplying the hourly rate by the hours worked. Therefore, while the court did not have the total number of hours spent on the case by each person who had devoted time to it, it still had some means to determine the approximate number of hours spent. We find the evidence both legally and factually sufficient to support the amount of attorney's fees awarded. In summary, we overrule Tisdale's issues and sustain those of Hagedorn. Thus, the judgment of the trial court is modified to reflect that the cause of action is dismissed with prejudice, and as modified, the judgment is affirmed. John T. Boyd Chief Justice Publish. 1. Later references to section numbers refer to article 4590i of the Revised Civil Statutes unless otherwise specifically denominated.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892593/	NO. 07-03-0051-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 24, 2005 ______________________________ J. H. (BUSTER) REEDY AND DEBBIE L. REEDY, APPELLANT V. GENE SCOTT, APPELLEE _________________________________ FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY; NO. 9875; HONORABLE H. BRYAN POFF, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellants, J.H. (Buster) Reedy and his wife Debbie Reedy, bring this appeal challenging a summary judgment in favor of Gene Scott on Scott’s claim for breach of an earnest money contract for the sale of property by the Reedys. We overrule appellants’ three points of error and affirm the judgment of the trial court. The events giving rise to this litigation began in May 1991 when the Reedys executed a written lease to Diane Powell1 for a house on a seventeen-acre tract in Wheeler County. The lease term began June 1, 1991, and was to run for thirty-six months. At the same time the Reedys executed a hand-written agreement to sell the property to Powell “upon said lease dated May 23, 1991.” The agreement provided the Reedys would not sell the property to anyone else unless Powell breached the lease agreement. Disputes arose between the Reedys and Powell concerning the property, resulting in litigation. The Reedys offered the property for sale and Scott made an offer of $55,000 in January 1993. Scott would later allege the Reedys told him of Powell’s lease and that she was occupying the property, but told him Powell was in default for failure to pay rent and would be removed. The Reedys accepted Scott’s offer, leading to execution of an earnest money contract dated January 26, 1993. That contract required the Reedys to provide title insurance subject only to eight listed exclusions and a warranty deed subject to the same exclusions. Powell’s lease and contract were not listed in the exclusions. On February 26, 1993 the Reedys executed and delivered a deed conveying the property to Scott in exchange for cash and Scott’s assumption of the outstanding mortgage. On March 16, 1993, Powell filed her May 1991 lease and the hand-written agreement for record in the Wheeler County property records. Scott filed his deed for record on April 2, 1993. A new commitment for title insurance dated the same day listed the lease and agreement recorded by Powell as additional exceptions to title insurance 1 Powell also uses the name Dayna Dawn’yel and both names appear in documents in the record. There is no question both names refer to the same person. -2- coverage. Scott filed suit against the Reedys on September 15, 1993, for breach of the earnest money contract and breach of warranty. He sought specific performance and damages. His suit also asserted claims against Powell for trespass to try title and to remove the cloud on his title. Powell filed counterclaims against Scott. See Powell v. Scott, No. 07-97-0241-CV (Tex.App.–Amarillo July 14, 1998, no pet) (unpublished opinion). The record indicates the claims between Scott and Powell were settled in June 1999, resulting in Powell’s release of her claims under the May 1991 agreement.2 Scott sold the property for $35,000 in April 2000. In May 2001 he moved for summary judgment on the basis his summary judgment evidence conclusively established the Reedys’ breach of the earnest money contract. The motion alleged he was “precluded from selling the property because of the encumbrances created by” the lease and agreement filed by Powell. Scott’s motion also sought recovery of liquidated damages, including attorney’s fees. The Reedys filed a response May 22, 2001, in which they objected to Scott’s summary judgment affidavit on the basis it was conclusory, and asserted that a factual dispute existed concerning Scott’s actual notice of Powell’s claim to the property and his “failure to timely record the deed [from the Reedys].” The Reedys offered the affidavit of J.H. Reedy in support, which asserted Scott “was aware of litigation between [Reedy] and [Powell] regarding this real estate in the justice and county courts of Wheeler County, 2 The lease terminated by its own terms in June 1994. The earlier, separate suit between the Reedys and Powell was dismissed in January 1995. -3- Texas when [he] purchased said property[.]” The trial court heard the summary judgment motion the same day but took no immediate action on it. The Reedys then filed a third amended answer, adding their allegations that Scott was aware of the litigation over the property at the time of his purchase. Scott subsequently objected to J.H. Reedy’s affidavit asserting it sought to establish an affirmative defense which was never plead. In a brief filed in support of his motion Scott conceded actual knowledge of Powell’s interest would bar his claim, but reiterated his position that the absence of a pleading to support the defense prevented consideration of the evidence. He also argued the court should not permit the filing of the Reedys’ amended answer because they failed to obtain leave of court to file the amendment less than seven days before the hearing on his motion. See Tex. R. Civ. P. 63; Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988) (applying Rule 63 to amendments before summary judgment hearing). The trial court later held a second hearing at which it denied the Reedys’ motion for leave to file their third amended answer but sustained a challenge to a portion of Scott’s attorney’s fees. It granted Scott’s motion and rendered a final summary judgment in his favor, awarding damages of $51,964.02, prejudgment interest of $28,607.19, and attorney’s fees of $8,880.17. The Reedys requested findings of fact and conclusions of law and timely perfected appeal. The Reedys present three points of error on appeal. They contend the trial court erred in (1) failing to file properly requested findings of fact and conclusions of law; (2) -4- granting the motion for summary judgment because the pleadings and evidence raise a genuine question on Scott’s actual knowledge “of that which [Scott] claims as a cloud on his title”; and (3) granting the motion for summary judgment because the pleadings and evidence raised an issue on Scott’s constructive notice of the cloud on the title. The Reedys cite Rule of Civil Procedure 296, Tenery v. Tenery, 932 S.W.2d 29 (Tex. 1996), and Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989), for the proposition that a trial court’s failure to file findings of fact on a proper request is presumed harmful. Their reliance on those authorities is misplaced. The Texas Supreme Court has consistently held requests for findings of fact and conclusions of law “have no place in a summary judgment proceeding.” IKB Industries Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). This is so because for summary judgment to be rendered, there cannot be a genuine issue as to any material fact, Tex. R. Civ. P. 166a(c), and the legal grounds are limited to those stated in the motion and response. 938 S.W.2d at 441. We overrule the Reedys’ first point. In their two remaining points the Reedys argue the pleadings and summary judgment evidence raised a fact issue on Scott’s actual or constructive notice of Powell’s claim to the property and such notice, if proven, would defeat Scott’s claim. On appeal, Scott continues to characterize the Reedys’ contention that his notice of Powell’s claim defeats his breach of contract action as an affirmative defense, and asserts their failure to plead the defense prevents their reliance on it. The Reedys’ brief does not directly address the trial court’s ruling denying leave to file their third amended petition, by which they attempted to plead Scott’s knowledge of Powell’s claims. At oral argument, the Reedys -5- advanced the contention their response to the motion for summary judgment may be considered a pleading for this purpose. By supplemental brief, Scott contests that contention, arguing Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 494 (Tex. 1991), supports the conclusion the Reedys could not raise the affirmative defense of Scott’s notice for the first time in their summary judgment response in the face of his objection in the trial court to their failure to plead the affirmative defense. For resolution of the narrow issues presented on appeal, we do not find it necessary to address the sufficiency of the Reedys’ pleadings or whether the issues they raised in opposition to Scott’s motion for summary judgment are properly characterized as affirmative defenses. The Reedys second and third points of error are based on the premise that Scott’s entitlement to recovery on his breach of contract claim is dependent on his status as a bona fide purchaser. This court has said a bona fide purchaser is one who acquires apparent legal title to property in good faith for a valuable consideration and without actual or constructive notice of an outstanding equity or an adverse interest or title. Newman v. Coker, 310 S.W.2d 354 (Tex.Civ.App.–Amarillo 1958, no writ). See generally 4 Leopold and Lange, Texas Practice: Texas Land Titles & Title Examination §§ 881-885, 883 n.3 (1992). A bona fide purchaser takes title to the property unburdened by such interests as those based on unrecorded instruments. See, e.g., Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (per curiam). See also Tex. Prop. Code Ann. §13.001 (Vernon 2003). Contending in support of their second issue that Scott’s actual knowledge of Powell’s claim to the property “prevented [Scott] from being a bona fide purchaser without notice of such claim and prevented [Scott] from prevailing against [the Reedys] on his claim -6- therefore,” the Reedys cite Lefevere v. Sears, 629 S.W.2d 768 (Tex.Civ.App.--El Paso 1981, no writ), Cornish v. Yarbrough, 558 S.W.2d 28 (Tex.Civ.App.–Waco 1977, no writ), and Foster v. Buchele, 213 S.W.2d 738 (Tex.Civ.App.–Fort Worth 1948, writ ref’d n.r.e.). Contending constructive notice similarly prevented Scott from attaining the status of a bona fide purchaser, they also cite Langley v. Norris, 173 S.W.2d 454 (Tex. 1943). The cases cited state the rule that actual or constructive notice of a claimed interest in real property prevents a buyer from avoiding the interest as a bona fide purchaser.3 Scott denies that his breach of contract claim against the Reedys required him to prove he was a bona fide purchaser. To be entitled to summary judgment a plaintiff must conclusively establish all the essential elements of his cause of action as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). In his motion for summary judgment, Scott set out the elements of his cause of action for breach of contract as requiring proof there was a binding earnest money contract between him and the Reedys containing obligations to be performed by both sides; that he performed his obligations as specified in the contract; that the Reedys failed to perform all the obligations required of them by the contract; and that he incurred damages 3 In accordance with the standard of review of a summary judgment, we take the statements in J. H. Reedy’s affidavit favorable to his position as true, and indulge every reasonable inference in the Reedys’ favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). -7- as a result of their breach.4 Neither his motion nor his summary judgment evidence refers to proof he lacked knowledge of Powell’s claims or that he was entitled to bona fide purchaser status with respect to his purchase of the property from the Reedys. We see no basis for a contention that Scott’s status as a bona fide purchaser was an element of the breach of contract cause of action on which summary judgment was granted. The cases the Reedys cite do not support such a contention. Nor do we see any reason why Scott’s knowledge of Powell’s purported interest necessarily would constitute a defense to the breach of contract claim. We must conclude the evidence of Scott’s knowledge of Powell’s claims was not material to the claim on which he sought summary judgment. A dispute on a fact which is not material does not prevent disposition by summary judgment. See Howell v. Murray Mortgage Co., 890 S.W.2d 78, 84 (Tex.App.–Amarillo 1994, writ denied); Borg- Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140, 144 (Tex.App.–Amarillo 1984, writ ref’d n.r.e.). Accordingly, we overrule appellants’ second and third points and affirm the trial court’s judgment. 4 The essential elements of an action for breach of contract are: (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach. Hussong v. Schwan’s Sales Enterprises, Inc., 896 S.W.2d 320, 326 (Tex.App.–Houston [1st Dist.] 1995, no writ). This appeal does not present a general issue challenging the grant of summary judgment, see, e.g., Friedman v. Atlantic Funding Corp., 936 S.W.2d 38, 40 n.1 (Tex.App.–San Antonio 1996, no writ), or a contention that the grounds alleged in Scott’s motion were insufficient to support summary judgment, see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Clear Creek Basin Authority, 589 S.W.2d at 678. -8- James T. Campbell Justice Johnson, C.J., not participating. -9-	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056785/	Case: 12-10078 Date Filed: 10/02/2012 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-10078 Non-Argument Calendar ________________________ D.C. Docket No. 1:08-cr-20897-DMM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES JOVAN LADSON, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2012) Before WILSON, HILL and KRAVITCH, Circuit Judges. PER CURIAM: Richard Klugh, appointed counsel for James Jovan Ladson, in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. Case: 12-10078 Date Filed: 10/02/2012 Page: 2 of 2 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 Ladson’s sentences are AFFIRMED. 2	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/2884326/	In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00033-CR ______________________________ ERIC LAMOND DAVIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 349th Judicial District Court Houston County, Texas Trial Court No. 08-CR-123 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Eric Lamond Davis was on trial in Houston County1 for murder. After the first day of testimony, one of the jurors serving in Davis' trial was arrested on a hot-check charge pending in another county. Over Davis' objection, the trial court released the arrested juror from further service in this case, seated one of the two alternate jurors that had previously been selected, and overruled Davis' motion for mistrial. From a murder conviction and a life sentence, Davis appeals, asserting that the trial court erred in denying his motion for mistrial. We affirm the judgment, because by statute an alternate juror may replace a disqualified juror. In his sole point of error, Davis argues that "statutes do not allow an alternate juror to serve in place of a disqualified juror." We disagree. Article 33.011 allows a trial court to select up to four alternate jurors to "replace jurors who, prior to the time the jury renders a verdict on the guilt or innocence of the defendant . . . become or are found to be unable or disqualified to perform their duties . . . ." TEX . CODE CRIM . PROC. ANN . art 33.011(b) (Vernon Supp. 2008) (emphasis added). A person is disqualified from serving as a juror if he or she is under indictment or other legal accusation for misdemeanor theft or a felony. TEX . CODE CRIM . PROC. ANN . arts. 35.16, 35.19 1 This case was transferred to this Court from the Twelfth District Court of Appeals in Tyler as part of the Texas Supreme Court's docket equalization program. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005). We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal. See TEX . R. APP . P. 41.3. 2 (Vernon 2006). In this case, no one disputes that the disqualified juror was "under indictment or other legal accusation for misdemeanor theft or felony" or that the alternate juror replaced the disqualified juror before the verdict. Accordingly, once the arrested juror was "found to be" disqualified, the trial court was required to, and did, excuse her from the jury. See TEX . CODE CRIM . PROC ANN . arts. 35.16, 35.19. The court then appropriately replaced her with an alternate juror. See TEX . CODE CRIM . PROC. ANN . art. 33.011(b). The trial court did not err. We overrule Davis' point of error and affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: September 15, 2009 Date Decided: September 18, 2009 Do Not Publish 3	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892589/	NO. 07-04-0456-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MARCH 24, 2005 ______________________________ IN THE MATTER OF THE MARRIAGE OF ARTURO JOEL MARIN AND ELIZABETH FRIDAY AND IN THE INTEREST OF MALISSA MARIN, A CHILD _________________________________ FROM THE COUNTY COURT AT LAW NO. 1, LUBBOCK COUNTY; NO. 2004-526,011; HONORABLE RUSTY B. LADD, JUDGE _______________________________ Before QUINN and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Elizabeth Friday, (1) acting pro se, perfected appeal from a default decree of divorce terminating her marriage to appellee Arturo Joel Marin. That decree, rendered August 12, 2004, named appellee as sole managing conservator and named appellant possessory conservator of the couple's only child. Appellant timely perfected appeal by filing a notice of appeal September 3, 2004. See Tex. R. App. P. 26.1. The trial court's docket sheet contains a notation that the court also treated appellant's notice of appeal as a motion for new trial and set the motion for a hearing. Appellant filed an amended motion for new trial November 16, 2004, and the motion was heard November 22, 2004. On receiving a third supplemental clerk's record on January 27, 2005, containing an order signed by the trial court judge January 25, 2005, providing appellant's motion for new trial "is hereby GRANTED," we considered the effect of that order on the pending appeal. After reviewing the clerk's record we concluded the order granting a new trial signed January 25, 2005, was ineffective because it was signed after the time for such orders allowed by Rule of Civil Procedure 329b. In re Marriage of Marin, No. 07-04-0456-CV (Tex.App.-Amarillo February 7, 2005). Our February 7 order directed appellant to file her brief no later than March 7, 2005, and cautioned her the failure to do so, or seek an extension of time in which to file her brief, would make her appeal subject to dismissal for want of prosecution. Tex. R. App. P. 38.8(a)(1). Appellant has not filed a brief or motion for extension as directed in our February 7 order. Litigants representing themselves must comply with the same procedural rules as are applicable to represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.App.-Amarillo 2000, no pet.). Because of her failure to file a brief or make any other response to this court's order, appellant's appeal is hereby dismissed. Tex. R. App. P. 38.8(a)(1), 42.3(b),(c). Per Curiam 1. Appellant's docketing statement reflects her current name as Elizabeth Friday Atnip. iority="9" QFormat="true" Name="heading 6"/> NO. 07-08-00298-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 28, 2010 JAMES RAY BARROW, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY; NO. B4148-0710; HONORABLE EDWARD LEE SELF, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant James Ray Barrow appeals from his jury conviction of the offense of robbery and the resulting sentence of ten years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Through two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Finding the evidence sufficient, we affirm the judgment of the trial court. Background Appellant was charged by an indictment alleging he committed robbery by intentionally or knowingly threatening or placing his victim in fear of imminent bodily injury or death.[1] After his not-guilty plea, the State presented its case through four witnesses. The defense cross-examined each of the State=s witnesses and presented two defense witnesses, including appellant. Evidence showed that at around 10:00 on the night of September 3, 2007, two teenage males visited a convenience store in Tulia, Texas. They arrived at the store in the driver=s pick-up truck and as they parked, appellant, a man in his late thirties, approached the passenger side of the truck, opened the door, and asked for money. Appellant then offered to give the boys a gold pendulum chain in exchange for money. The complainants told appellant they did not have any money. The driver of the pick-up truck decided to move to another parking space because he was Areally scared.@ The passenger testified the driver moved Abecause [they] were scared...[b]ecause someone opened my door I didn=t know. I didn=t know if he was going to hurt me orByou know, just opened the door without asking or anything; just opened the door.@ As the driver prepared to pull into another space, appellant said, AI=ll just get in. I=ll just get in.@ Appellant Agot on top of [the passenger=s] lap. The passenger testified appellant had his hand in his sweater[2] Aand I didn=t know if he may have had a weapon, if I was going to get hurt orBI didn=t know what was happening, because he jumped in.@ The driver testified he Awas really pretty scared because I didn=t want somebody I didn=t know in my pickup.@ The driver also testified he believed Aa little bit@ that appellant could hurt him. Appellant then asked the driver and passenger for cigarettes, which they told him they did not have. Appellant asked again for money but the complainants again told them they had none. In response, as appellant opened the door of the truck, he reached over to the console of the truck and took three dollars that were in the cup holder. He got out of the truck and left. The passenger closed the door of the pick-up truck and they left Abecause we were scared. We didn=t want to stay there.@ The driver took the passenger to a nearby friend=s house. About five to ten minutes after the incident, the passenger complainant observed appellant on the street near the home. He told his friend Athat=s the guy.@ His friend identified him as appellant, calling him ABaby James.@ The passenger then talked to the driver of the pick-up truck and the boys went to the police department. The complainants provided written statements and identified appellant in a line-up. The defense provided evidence to show appellant did not intend to commit theft but merely asked the complainants if they had any money he could borrow. He also testified he offered to sell a necklace to the boys in exchange for ten dollars. He further contended the driver offered him the three dollars. After hearing the evidence presented, the jury found appellant guilty of robbery and sentenced him to imprisonment for a term of ten years. This appeal followed. Analysis Through two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for robbery. He argues that at most he is guilty only of misdemeanor theft.[3] Applicable Law Reviewing its legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979). If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt of the defendant=s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975,113 S.Ct. 1422, 122 L. Ed. 2d 791 (1993). A factual sufficiency review of the evidence is Abarely distinguishable@ from the legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury=s verdict is against the great weight and preponderance of the evidence. Id.; Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. We must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009); Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000) (citing Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994)). Likewise, "reconciliation of conflicts in the evidence is within the exclusive province of the jury." Wyatt, 23 S.W.3d at 30 (citing Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986)). The jury may choose to believe some testimony and disbelieve other testimony, Wyatt, 23 S.W.3d at 30. As pertinent here, a person commits robbery Aif, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.@ Tex. Penal Code Ann. ' 29.02(a)(2) (Vernon 2003). A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. ' 31.03 (Vernon 2007). Proving robbery by showing the defendant placed another in fear does not require an actual threat. Burton v. State, 230 S.W.3d 846, 852 (Tex.App.BHouston [14th Dist.] 2007, no pet.), citing Childress v. State, 917 S.W.2d 489, 494 (Tex.App.BHouston [14th Dist.] 1996, no pet.) (A[t]he fact-finder may conclude that an individual was >placed in fear= in circumstances where no actual (verbal) threats were conveyed by the accused@). Under the Aplaced in fear@ language in section 29.02 of the Penal Code, the factfinder may conclude that an individual perceived fear or was Aplaced in fear,@ in circumstances where no actual threats were conveyed by the accused. Williams v. State, 827 S.W.2d 614, 616 (Tex.App.BHouston [1st Dist.] 1992, pet. ref=d). Application Appellant argues the evidence presented at trial was insufficient to prove he was guilty of robbery because the complainants were not placed in fear and because the State did not prove appellant intended to, or knew his conduct would, place the complainants in fear. We disagree. First, appellant argues the evidence did not show the complainants were placed in fear. However, each complainant here testified they were scared when appellant, a man they did not know, opened the door, asked for money, and jumped into the truck. The passenger testified he was afraid appellant had a gun because his hand was in his pocket.[4] The driver testified similarly. Both complainants testified they were scared of being hurt by appellant. The driver testified he was Areally scared@ because he Adidn=t know what [appellant] was going to do, what he had on him, you know. Maybe I felt a little threatened.@ Appellant was Areally, really persistent@ about asking for money and was Akind of not going to let us leave.@ The driver testified the three dollars appellant took out of the cup holder in the console of the truck belonged to him and he did not give appellant permission to take it. The three dollars were never returned to him. On appeal, appellant refers us to specific testimony he argues supports his contention that the evidence is insufficient to support the complainants were placed in fear: Q. (by defense counsel): And isn=t it true, [passenger], that [appellant] never made any threat to harm you or [driver]? A. (by passenger): No, sir. Q. That=s not true, or that is true? A. That is true, that he did not ever....@ * Q. (by defense counsel) Now, did [appellant] ever say anything to you or to [passenger] to give you the idea that he would do something to you if you didn=t give him any money? A. (by driver) No, sir. * Q. And did he ever act like heBdid he make any overt or any direct acts like he was wanting to hurt either you or [passenger]? A. No, sir. Q. Did he say anything like, you know, AGuys, if you don=t give me some money, I=m going to take you out in the parking lot and beat the snot out of you@? A. No, sir. Q. Did he make any statements of any kind that wouldBthat you would take as a threat? A. No, sir. Appellant further argues that the State=s evidence of the driver complainant=s emotions, ranging from feeling a Alittle threatened@ to being a Alittle bit@ afraid of imminent bodily injury is not legally sufficient evidence he was placed in fear of robbery. We nevertheless find the jury reasonably could have found, based on the complainants testimony, the complainants were placed in fear. Appellant also argues there is no evidence to support the jury=s implicit finding appellant intended by his conduct to put the driver complainant in fear of imminent bodily injury to induce him to part with his money. He testified he took a walk that evening after having an argument with his wife. He acknowledged having the chain necklace in his pocket and approaching the complainants. He said he saw the passenger get out of the truck and asked for money. He stated AI have a nice necklace on me maybe one of you young guys would like to have.@ He asked for ten dollars in exchange for the necklace, which he said he believed was worth eighty or ninety dollars. The passenger told appellant he did not have any money but took the necklace and asked the driver if he wanted to buy it. The driver told the passenger he had only three dollars. The passenger returned the necklace to appellant. The driver then offered appellant the three dollars he had in the truck. Appellant testified he never threatened the complainants, never intended to take anything from them, and never got into the pick-up. He also testified he thanked the boys for the money when he saw them at a nearby house. He crossed the street and waved Ahello@ to them and the passenger=s friend said hello, referring to appellant as ABaby James.@ In making his argument that he did not intentionally or knowingly act in a way to place the complainants in fear, appellant also points to the driver complainant=s testimony agreeing that no harm was done to either complainant, no aggressive movements were made by appellant to them, and appellant gave them no Amean looks.@ During redirect, however, the driver agreed with the prosecutor that opening the truck door uninvited and jumping in on the passenger=s lap were aggressive movements. As noted, the jury was free to believe the complainants version of the events rather than appellants. Wyatt, 23 S.W.3d at 30; Chambers, 805 S.W.2d at 461. From the testimony the jury heard, we conclude the jury could have inferred from appellants conduct that he intended to, or knew his conduct would, place the complainants in fear. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App. 1980); Dominguez v. State, 125 S.W.3d 755, 761 (Tex.App.Houston [1st Dist.] 2003, pet. refd) (a jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant). Viewing the evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to establish appellant intentionally or knowingly acted in such a way to place the complainants in fear. The evidence is likewise legally sufficient to show the complainants were placed in fear. Viewing all the evidence in a neutral light, we conclude the proof of appellants guilt is also neither so obviously weak as to undermine confidence in the jurys determination, nor such that it is greatly outweighed by contrary proof. The evidence is factually sufficient. We overrule appellant=s issues and affirm the trial court=s judgment. James T. Campbell Justice Do not publish. [1] See Tex. Penal Code Ann. ' 26.02(a)(2) (Vernon 2003). [2] The passenger later testified appellant was wearing Aa little hoodie@ with Alittle pockets.@ [3] The courts charge to the jury included an instruction on the lesser-included offense of misdemeanor theft. [4] At trial, the defense examined a police officer to establish that when the officer saw appellant that night, he was wearing plaid shorts and a Ablack sleeveless-type undershirt@ but was not wearing a hoodie. He further established that the shirt appellant was wearing did not have pockets that the officer saw.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2897498/	NO. 07-07-0022-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B APRIL 10, 2008 ______________________________ JOHN A. REDER, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant v. THE STATE OF TEXAS, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2006-414,285; HON. CECIL PURYEAR, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Â Â Â Â Â Â Â Â Â Â John A. Reder (appellant) appeals his conviction for indecency with a child. Via three issues, he contends the trial court erred by failing to 1) admit evidence from a CPS report and 2) grant his motions for continuance. We affirm.Â Â Â Â Â Â Â Â Â Â Â Issue One Â Â Â Â Â Â Â Â Â Â The evidence that appellant thought the court wrongfully excluded consisted of information contained in a report to the Child Protective Services. The information concerned an allegation that the victim (who was four years old at the time) was âpurgingâ at home and in school and was caught by her uncle in bed with her four-year-old cousinâs head between her legs. During the latter episode, the child purportedly said ââdo it like daddy does it.ââ Who made the report to CPS went unmentioned and so did the identity of the uncle. So, it is unknown if the information was communicated by the uncle, by the child, by the childâs mother, or by the next door neighbor after hearing it as gossip in a local beauty shop. Moreover, CPS made no disposition of the allegation; in other words, it made no determination of whether the allegations in the report were true or not. Given these circumstances, and assuming that the report had relevance, see Johnson v. State, 933 S.W.2d 195, 198-99 (Tex. App.âWaco 1996, pet. refâd) (stating that the decision about whether evidence of prior sexual conduct is admissible is one of relevance), it at the very least would be within the realm of reasonable disagreement to conclude that any potential value of the report was far outweighed by the potential prejudice or confusion of issues accompanying it. This is especially so when nothing in the document purports to suggest that someone other than appellant committed the acts underlying the indictment at bar. Consequently, we cannot say that the trial court abused its discretion in excluding the information. Metts v. State, 22 S.W.3d 544, 550 (Tex. App.âFort Worth 2000, no pet.) (holding that in matters of evidence, the trial courtâs decision can be upheld by any legitimate ground). Therefore, we overrule the issue. Â Â Â Â Â Â Â Â Â Â Â Issues Two and Three Â Â Â Â Â Â Â Â Â Â In the next and final two issues, appellant contends that the trial court erred in denying his motions to continue the trial. Continuance was necessary, in his view, so that he could flesh out the allegations in the aforementioned CPS report, which allegations he believed were exculpatory. We overrule the issues. Â Â Â Â Â Â Â Â Â Â Whether the trial court erred in denying the continuances depends upon whether it abused its discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). Furthermore, when a continuance is sought after trial begins, the movant must establish that the delay is needed because of âsome unexpected occurrence since the trial began, which no reasonable diligence could have anticipatedâ and which caused him surprise. Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 2006). Â Â Â Â Â Â Â Â Â Â Two motions for continuance are at issue. One was filed before trial began, the other after trial began. Regarding the latter, appellant had received the CPS report in question during the week prior to trial. Having received the report before trial, the discovery of its contents falls outside the scope of âsome unexpected occurrence since trial began.â (Emphasis supplied). Â Â Â Â Â Â Â Â Â Â As for the initial motion to continue filed before the jury was selected, appellant effectively sought time to find someone he considered to be a material witness. The witness sought was the âuncleâ mentioned in the CPS report to which we previously alluded. Given this reason for seeking a continuance, appellant had the burden to illustrate how the uncleâs testimony was material before he could obtain a continuance. Hubbard v. State, 912 S.W.2d 842, 844 (Tex. App.âHouston [14th Dist.] 1995, no pet.). And, he attempted to satisfy this requirement by arguing that the uncleâs testimony could be used to show that appellant never assaulted the child and that someone else did. Â Â Â Â Â Â Â Â Â Â We do not question that evidence indicating someone other than the accused committed the crime indeed may be material. Yet, appellantâs argument is founded on a defective factual basis. That is, nothing in the CPS report exculpates him. Nothing in it suggests that he did not molest the child as alleged in the indictment, even if the circumstances mentioned in the report were deemed true. Rather, the circumstances described (when intertwined with imagination) suggest that the child could have been the victim of other molestation at the hands of unknown parties, or so a reasonable jurist could have interpreted the circumstances. But, nothing in the report suggests that appellant never committed the acts for which he was charged. Consequently, we cannot say that a trial court was obligated to postpone trial so that appellant could find the âuncleâ and have him testify about what he saw. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (holding that when the standard of review is one of abused discretion, then the trial courtâs decision must be affirmed if supported by any valid ground). Â Â Â Â Â Â Â Â Â Â Accordingly, we affirm the judgment rendered below. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Brian Quinn Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Chief Justice Do not publish. . 1945)). There appears to be no dispute that a four-year statute of limitations would apply to Stewart's claims against her father. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002) (prescribing four-year limitations period for claims of fraud and breach of fiduciary duty). (12) We find the summary judgment record conclusively shows the statement Stewart attributes to Johnson to the effect "that it was too late - I had signed an agreement in '81, it was now '89, it was too late to do anything . . . ." was not a misrepresentation. Because the summary judgment evidence negated an element of her cause of action against Johnson, summary judgment was appropriate. We overrule appellant's second issue. Our disposition of her second issue makes consideration of Stewart's first and third issues unnecessary. Tex. R. App. P. 47.1. We affirm the trial court's judgment. James T. Campbell Justice 1. John T. Boyd, Chief Justice (Ret.) Seventh Court of Appeals, sitting by assignment. 2. For simplicity, we refer to appellees as "Johnson." Stewart asserts no claim against the law firm McWhorter, Cobb & Johnson, L.L.P., other than its vicarious liability for the actions of its member Johnson. 3. The exchange agreement, although dated January 1, 1982, also is sometimes referred to in the summary judgment record as the "1981 agreement." 4. The summary judgment record contains no testimony from either defendant about the events Stewart described. 5. Stewart's pleadings alleged that, among other things, she learned from the bank's records that Johnson "had been involved in this matter as the attorney for her father and American State Bank since at least [a date in October 1982]." In her deposition, Stewart testified that, so far as she knew, Johnson had no involvement in the preparation of the exchange agreement. 6. On appeal, Stewart's brief asserts for the first time that her suit also alleged a breach of fiduciary duty. We agree with Johnson that Stewart's pleadings cannot be read to claim that Johnson owed her a fiduciary duty. Instead, she alleged her father owed her a fiduciary duty. 7. Appellant also makes reference to claims against her father for breach of fiduciary duty. As we later discuss, our disposition of her appeal would be the same whether her unpursued claim against her father would have been based on fraud or breach of fiduciary duty. 8. In addition to her complaint that Johnson falsely told her it was "too late" to bring a fraud claim against her father, Stewart complains that Johnson's statement he "knew nothing" about fraudulent conduct by her father was false, and complains of Johnson's failure to disclose he had a conflict of interest because of his representation of her father and American State Bank. The only injury she identifies as arising from her telephone conversation with Johnson, however, is her failure to take action against her father for his fraud. 9. The summary judgment record contains no expert testimony about Stewart's chances of success in a fraud action brought against her father in 1989. The parties do not address the consequences of the absence of such expert testimony, and we need not consider it. 10. Relying on much of the same evidence and making essentially the same argument, Johnson's motion also contended that the summary judgment evidence conclusively negated the injury element of Stewart's fraud claim against him. See FirstMerit Bank, N.A., 52 S.W.3d at 758 (elements of fraud include injury suffered from reliance on false representation). 11. The certified mail return receipt shows Stewart signed for the letter on March 25, 1983. Stewart testified she had a distinct memory of her receipt of the letter. 12. But see Rice v. Louis A. Williams & Assocs., Inc., 86 S.W.3d 329, 333 (Tex.App.-Texarkana 2002, no pet.) (discussing authority that a two-year statute of limitations applied to breach of fiduciary claims before 1999). The result in this case would, of course, not be different if a two-year statute had applied.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2993829/	Order Michigan Supreme Court Lansing, Michigan September 23, 2015 Robert P. Young, Jr., Chief Justice 150710 & (44) Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano HOWARD T. LINDEN, Conservator for the Richard H. Bernstein, Estate of INDIA ARNE THOMAS, a/k/a INIA Justices ARNE THOMAS, Plaintiff-Appellee, Cross-Appellant, v SC: 150710 COA: 312702 Ingham CC: 10-001572-NF CITIZENS INSURANCE COMPANY OF AMERICA, Defendant/ Third-Party Plaintiff-Appellant, Cross-Appellee, and WILLIAM THOMAS and TAMAKIA THOMAS, Third-Party Defendants. _________________________________________/ On order of the Court, the application for leave to appeal the November 13, 2014 judgment of the Court of Appeals and the application for leave to appeal as cross- appellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 23, 2015 t0916 Clerk	01-03-2023	09-24-2015
https://www.courtlistener.com/api/rest/v3/opinions/3053846/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT B. POSEY,  Plaintiff-Appellant, v. No. 07-35188 LAKE PEND OREILLE SCHOOL DISTRICT NO. 84; BOARD OF  D.C. No. CV05-272-N-EJL TRUSTEES, LAKE PEND OREILLE SCHOOL DISTRICT NO. 84; JIM OPINION SOPER, Building Principal, in his individual and official capacities, Defendants-Appellees.  Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Argued and Submitted August 28, 2008—Seattle, Washington Filed October 15, 2008 Before: Michael Daly Hawkins, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges. Opinion by Judge Hawkins 14529 14532 POSEY v. LAKE PEND OREILLE SCHOOL COUNSEL John M. West (presented argument and authored briefs), Bredhoff & Kaiser, Washington, D.C., for the plaintiff- appellant. Mark D. Sebastian (presented argument) and Brian K. Julian (authored brief), Anderson, Julian & Hull, LLP, Boise, Idaho, for the defendants-appellees. POSEY v. LAKE PEND OREILLE SCHOOL 14533 OPINION HAWKINS, Circuit Judge: This case requires us to determine whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law. Plaintiff Robert Posey sued Lake Pend Oreille School Dis- trict No. 84 (the “School District”), arguing that by eliminat- ing his job, the School District retaliated for his prior speech, in violation of the First and Fourteenth Amendments to the United States Constitution. The district court granted sum- mary judgment in favor of the School District, concluding— purely as a matter of law—that the speech in question had been spoken pursuant to Posey’s job responsibilities and thus in his capacity as a public employee, and that it was therefore not constitutionally protected. Posey appeals. We have juris- diction under 28 U.S.C. § 1291. We conclude that, following Garcetti, the inquiry into whether a public employee’s speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law. Summary judgment is therefore inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justi- fication for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff’s employment duties. Accordingly, we reverse the grant of summary judgment on Posey’s First Amendment retaliation claim and remand to the district court for further proceedings consistent with this opinion. 14534 POSEY v. LAKE PEND OREILLE SCHOOL I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background Posey, an employee of the School District assigned as a “security specialist” to Sandpoint High School, believed the School District’s safety and emergency policies were inade- quate. In November 2002, Posey met with Sandpoint Princi- pal Jim Soper to express his concerns about student discipline and safety issues, including ongoing drug and weapons viola- tions and Posey’s feeling that his hands were tied in enforcing school policies. Soper did not respond directly to Posey’s expression of concern, and Posey became increasingly uneasy about security and safety issues throughout the following school years. Posey’s disquiet eventually led him, in October 2003, to compose and deliver a lengthy letter to School District Chief Administrative Officer Steve Battenschlag, with whom Posey had a friendly relationship. The letter was copied to Superin- tendent Mark Berryhill and two other school administrators, Kathy Chambers and Todd Reed. It complained in general and specific terms about both personal grievances and what Posey perceived to be inadequate safety and security policies at the high school. With respect to personal grievances, the letter complained that Principal Soper had dealt with Posey “poorly” and occasionally in “an angry, threatening manner.” It acknowledged that Posey had “been fighting with the new administration for over a year now” because, in Posey’s view, the administration’s “new philosophy is to keep me out of everything except for parking and lost and found.” The bulk of the letter, however, addressed Posey’s concerns about inadequate safety and security policy and enforcement at the school. Posey hoped his letter would prompt the school district to “correct the problems before someone gets seri- ously hurt.” The letter specifically detailed concerns about: (1) the administration’s general unresponsiveness to safety POSEY v. LAKE PEND OREILLE SCHOOL 14535 problems, (2) inadequate staff and faculty training, (3) con- cealment and insufficient documentation of safety violations, (4) ineffective enforcement of truancy policies, (5) ineffective enforcement of sexual harassment policies, and (6) inadequate fire safety and school evacuation planning. Each of these concerns was substantiated by at least one specific example, including Posey’s recollection of students bringing weapons to school, student intoxication, sexual harassment and possibly rape among school staff, persistent student truancy, and failure to evacuate the building when there had been smoke in the hallways and the fire alarm had gone off. Posey also stated his concern that the Columbine school shootings “can happen here and almost did,” alleging that the administration’s failure to update safety and emer- gency policies “is not right” and “is plain negligence.” Fol- lowing delivery of the letter to Battenschlag, Posey met with Battenschlag and Berryhill at Posey’s home, outside of school hours, to discuss his concerns. The parties do not dispute that Posey wrote the letter at home, with his own resources, on his own time, and of his own initiative. The letter was written on plain paper and casu- ally addressed to “Steve.” The parties also do not dispute that Posey’s workplace resources were inconsistent with his hav- ing written the letter on school premises. The parties do dispute, however, whether Posey wrote the letter as part of his official employment responsibilities. The evidence indicates that Posey was initially hired in 1995 as a “parking lot attendant” for Sandpoint High School. His job title changed periodically throughout his subsequent nine years of employment for the District. Some time before 2002, Posey’s title was changed to “Security Specialist.” In that role, Posey was initially responsible for twenty enumerated tasks relating to preventing and responding to student miscon- duct. 14536 POSEY v. LAKE PEND OREILLE SCHOOL In 2002, however, Principal Soper substantially reduced Posey’s job responsibilities. Posey was relieved of responsi- bility for all specified tasks except assisting with security and crime prevention, and supervising the school parking lot, grounds, and hallways. Posey had been but was no longer responsible for liaising with police, enforcing truancy poli- cies, searching students, and investigating student miscon- duct. The parties specifically dispute whether Posey had any policy-making responsibility or authority to support a conclu- sion that Posey’s letter “was required as a part of [his] official duties,” Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir. 2007). In 2002, for instance, Soper instructed Posey to “up- date” the school’s emergency plan. Posey subsequently sub- mitted a “document” updating the plan. The School District therefore insists that Posey “provided reports and information about security matters at the high school” as “an inherent part of his duties” and characterizes his letter as an “internal com- munication” that “ar[ose] as part of [his] job duties.” Posey counters that no aspect of his job description required him to “report[ ] wrongdoing by administrators or co-workers” and that “his role in student discipline did not extend beyond discrete tasks such as ensuring that the parking lot remained orderly at the end of the school day.” Indeed the record indicates, by Soper’s own admission, that responsibil- ity for updating the emergency plan was reassigned in part “[b]ecause Mr. Posey was not in full charge of those issues.”1 1 Adding to the confusion surrounding Posey’s job responsibilities, the parties’ characterizations appear to have shifted in the time between their depositions and the identification of the relevant legal questions at issue in this case. Principal Soper, for instance, indicated in 2006 that Posey “was very good at coordinating the parking lot . . . . but as far as the actual security of it, not really, he didn’t have a lot to do with that.” And around the same time, Posey insisted that ensuring student safety and security “was my job description [and] was a function of my job.” In their briefing before this court, each party has made a resolute 180-degree turn in their respective characterizations of Posey’s duties. POSEY v. LAKE PEND OREILLE SCHOOL 14537 At the conclusion of the 2003-04 school year, Posey was informed that the School District would be combining his job responsibilities as security specialist with three other employ- ees’ responsibilities, in a new consolidated “preventative spe- cialist” position. Posey applied but was not hired for the position. He filed a grievance with the School District, which initially determined that he had been retaliated against for his letter to Battenschlag. The District’s governing board subse- quently overrode that determination and refused to hire Posey. B. Proceedings Below Posey filed suit under 42 U.S.C. § 1983 in Idaho state court asserting, in addition to a range of state law claims, that the District’s elimination of his position and failure to rehire him in the newly consolidated position constituted retaliation for his letter to Battenschlag and subsequent meeting with Batten- schlag and Berryhill, in violation of the First and Fourteenth Amendments. The School District removed the case to the Federal District Court for the District of Idaho pursuant to 28 U.S.C. § 1446. Following discovery, the School District moved for sum- mary judgment, arguing that Posey’s speech was not pro- tected by the First Amendment because his “statements were made pursuant to his duties” in his role as “Security Special- ist.” Granting the motion, the district court concluded that Posey had not communicated his concerns regarding school security and safety issues to the newspapers or his legislators and that his speech had stemmed from activities that he was paid to do. Because, in the district court’s view, Posey had not spoken as a private citizen, it granted summary judgment in favor of the School District on Posey’s First Amendment retaliation claim. The court remanded Posey’s remaining state law claims to the Idaho state court. Posey now appeals the grant of summary judgment. 14538 POSEY v. LAKE PEND OREILLE SCHOOL II. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1131 (9th Cir. 2003). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Because this appeal is taken from an order of summary judgment in favor of the School District, “ ‘[t]he evidence of [Posey] is to be believed, and all justifiable inferences are to be drawn in his favor.’ ” Garcetti, 547 U.S. at 442 n.13 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). III. DISCUSSION A. The Protected Speech Inquiry after Garcetti [1] In order to sustain a First Amendment retaliation claim, a public employee must show “(1) [t]he employee engaged in constitutionally protected speech, (2) the employer took adverse employment action against the employee, and (3) the employee’s speech was a ‘substantial or motivating’ factor in the adverse action.” Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir. 2006) (citing Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)). Until recently, the first element of this test required the court to determine as a matter of law (1) whether the speech at issue “ ‘touch[ed] on a matter of public concern,’ ” and if so, (2) whether “ ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern [outweighed] the interest of the State, as an employer, in promoting the effi- ciency of the public services it performs through its employ- ees.’ ” Dible v. City of Chandler, 515 F.3d 918, 926 (9th Cir. 2008) (quoting City of San Diego v. Roe, 543 U.S. 77, 82-83 (2004)) (some internal quotations omitted). POSEY v. LAKE PEND OREILLE SCHOOL 14539 If a court determined that the speech at issue in any given case failed to raise a matter of public concern sufficient to outweigh the state’s interest in efficient operation, then the speech was not protected and a jury did not need to resolve the factual questions presented by the second and third ele- ments of the test. This two-stage inquiry into the protected status of the speech was purely legal and therefore properly decided on summary judgment. See Connick v. Myers, 461 U.S. 138, 148 n.7 (1983) (“The inquiry into the protected sta- tus of speech is one of law, not fact.”). Garcetti, however, added a third stage to the first element of the First Amendment retaliation test, requiring a determina- tion whether the plaintiff spoke as a public employee or instead a private citizen. The plaintiff in Garcetti, Deputy District Attorney Ceballos, had been assigned to review a case in which the police had allegedly filed an inaccurate affidavit to obtain a search warrant. 547 U.S. at 413-14. Concluding the affidavit contained serious misrepresentations, Ceballos submitted to his superiors a memorandum stating his findings and recommending dismissal of the case. Id. at 414. The dis- trict attorney nevertheless proceeded with the prosecution. Id. When Ceballos was subsequently reassigned, transferred, and passed over for a promotion, he filed suit claiming that his supervisors had violated his First Amendment rights in retali- ation for the memo. Id. at 415. [2] There, the Supreme Court concluded that when a public employee speaks pursuant to his or her official duties, as Ceballos did, the speech is not protected because any restric- tion on that speech “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 422. The Court distinguished “work product” that “owes its existence to [an employee]’s professional responsibilities” from “contributions to the civic discourse,” which “retain the prospect of constitutional protection” for the speaker. Id. at 421-22. Because Ceballos’s preparation of the memo “fell within the scope of his job responsibilities”— 14540 POSEY v. LAKE PEND OREILLE SCHOOL because it was written in his capacity as employee and not citizen—the memo itself fell outside the sphere of First Amendment protection. Id. at 422. [3] But in Garcetti there was no dispute that Ceballos’s internal memorandum had been written in execution of Cebal- los’s official employment responsibilities. Id. at 424 (“[T]he parties in this case do not dispute that Ceballos wrote his dis- position memo pursuant to his employment duties.”). Thus the Court had “no occasion to articulate a comprehensive frame- work for defining the scope of an employee’s duties in cases where there is room for serious debate.” Id. Here there is room for precisely such debate regarding whether Posey wrote and delivered his letter in execution of his official employment duties.2 Given the factual disputes presented in the record, we must therefore determine whether the inquiry into the protected status of speech remains one purely of law as stated in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law. Our sister circuits are split over the resolution of this ques- tion. In Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), for example, the magistrate judge had concluded that the question whether Charles’s statements were made in his capacity as a citizen or an employee presented a genuine issue of material fact requiring trial. Id. at 513 n.17. On appeal, however, the Fifth Circuit disagreed, concluding that “even though analyz- ing whether Garcetti applies involves the consideration of factual circumstances surrounding the speech at issue, the question whether Charles’s speech is entitled to protection is 2 We have twice considered First Amendment retaliation claims after Garcetti. See Marable, 511 F.3d 924; Freitag, 468 F.3d 528. We con- cluded that statements are made in the speaker’s capacity as citizen if the speaker “had no official duty” to make the questioned statements, Mar- able, 511 F.3d at 932-33, or if the speech was not the product of “ ‘perform[ing] the tasks [the employee] was paid to perform,’ ” Freitag, 468 F.3d at 544 (quoting Garcetti, 547 U.S. at 422). POSEY v. LAKE PEND OREILLE SCHOOL 14541 a legal conclusion properly decided at summary judgment.” Id. The Tenth Circuit has also concluded that “[all] three steps” of the inquiry into the protected status of speech, including the “determin[ation] whether the employee [has spoken] pursuant to [his] official duties,” “are to be resolved by the district court [and not] the trier of fact.” Brammer- Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir. 2007). There, despite a dispute among the parties, the court found at summary judgment that some of the plain- tiffs’ speech had been made pursuant to their employment duties and some had not. Id. at 1204. The District of Columbia Circuit has also held, following Garcetti, that the question whether a plaintiff “ha[s] spoken as a citizen on a matter of public concern” is a “question[ ] of law for the court to resolve,” and not a “question[ ] of fact ordinarily for the jury.” Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (internal quotation omitted) (going on to affirm summary judgment because, on review of the evi- dence of plaintiff’s alleged but apparently disputed employ- ment duties, the speech “easily” fell within the plaintiff’s job responsibilities). In conflict with the Fifth, Tenth, and D.C. Circuits, the Third Circuit has “held that ‘whether a particular incident of speech is made within a particular plaintiff’s job duties is a mixed question of fact and law.’ ” Reilly v. City of Atlantic City, 532 F.3d 216, 227 (3d Cir. 2008) (quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)). In Foraker, the Third Circuit considered a First Amendment retaliation case that had already gone to trial. The court applied “clear error” review to the factual finding that the plaintiffs’ speech had been “made pursuant to employment duties.” Foraker, 501 F.3d at 250 (Pollak, J., concurring). 14542 POSEY v. LAKE PEND OREILLE SCHOOL The Seventh Circuit has implicitly sided with the Third Cir- cuit, concluding in Davis v. Cook County, 534 F.3d 650 (7th Cir. 2008), that summary judgment was appropriate because “no rational trier of fact could find” that Davis’s speech had been made in her capacity as a private citizen. Id. at 653. And, prior to Garcetti, the Eighth Circuit had already concluded (with respect to the second element, requiring the balancing of interests between the individual and the state3) that “any underlying factual disputes concerning whether the speech at issue [is] protected should [be] submitted to the jury.” Casey v. City of Cabool, 12 F.3d 799, 803 (8th Cir. 1993) (citing Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993)).4 3 The circuits are also split on the question whether the balancing inquiry is an issue of law or fact. See Weaver v. Chavez, 458 F.3d 1096, 1101 (10th Cir. 2006) (recognizing the circuit split). For example, compare Johnson v. Ganim, 342 F.3d 105, 114-15 (2d Cir. 2003) (“factual disputes pertaining to the potential for disruption and defendants’ motivations in suspending and terminating plaintiff” are issues which “would properly be regarded as a question of fact, to be answered by the jury prior to the dis- trict court’s application of the Pickering balancing test” (quotations omit- ted)), and Belk v. City of Eldon, 228 F.3d 872, 881 (8th Cir. 2000) (“Although the balancing of interests is a matter of law for the district court, the underlying factual questions should be submitted to the jury, generally through interrogatories or a special verdict form.”), with Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987) (holding that the balancing inquiry presented questions which “were not factual issues for the jury,” but “involved questions of constitutional law for the court” and therefore that the “jury had no role to play”). This case does not present an occasion for us to enter this additional, albeit related, fray. 4 In the face of this conflict, district courts within this circuit have also reached conflicting decisions. Compare, e.g., Neveu v. City of Fresno, No. CV-F-04-6490, 2007 WL 2330775, at 3 (E.D. Cal. 2007) (concluding that “[t]he inquiry into the protected status of speech,” including whether speech was made pursuant to job responsibilities, “is one of law, not fact” and going on to grant summary judgment despite apparent factual dispute regarding job responsibilities (internal quotation marks omitted)) with, e.g., Shewbridge v. El Dorado Irrigation Dist., No. CIV. S-05-0940, 2006 WL 3741878, at 7 (E.D. Cal. 2006) (declining to grant summary judg- ment “because there are factual issues about whether plaintiff’s job responsibilities included the obligation to report wrongdoing by the dis- POSEY v. LAKE PEND OREILLE SCHOOL 14543 [4] Upon consideration, we agree with the Third, Seventh, and Eighth Circuits and hold that the determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law. [5] Although the Supreme Court has previously recognized “the vexing nature of the distinction between questions of fact and questions of law,” Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982) (citing Baumgartner v. United States, 322 U.S. 665, 671 (1944)), and characterized the distinction as “elusive,” Miller v. Fenton, 474 U.S. 104, 113 (1985), it has also offered some guidance. Facts that can be “found” by “ap- plication of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 n.17 (1984). As the present case demonstrates, the scope and content of a plaintiff’s job responsibilities can and should be found by a trier of fact through application of these principles. The Garcetti Court itself seems to have anticipated as much when it explained that “[t]he proper inquiry is a practical one,” requiring more than mere mechani- cal reference to “[f]ormal job descriptions[, which] often bear little resemblance to the duties an employee actually is expected to perform.” Garcetti, 547 U.S. at 424-25. Because the task of determining the scope of a plaintiff’s job responsibilities is concrete and practical rather than abstract and formal, we are confident that a factual determina- tion of a plaintiff’s job responsibilities will not encroach upon the court’s prerogative to interpret and apply the relevant trict either internally to his supervisors or externally to other agencies”). See also Clarke v. Multnomah County, No. CV-06-229, 2007 WL 915175, at *12 (D. Or. 2007) (stating that “[w]hether particular speech qualifies for constitutional protection is a question of law” but nevertheless concluding that summary judgment was appropriate because “no reasonable juror could conclude anything but all of plaintiff’s communications regarding the four subject areas, were pursuant to her official job duties”). 14544 POSEY v. LAKE PEND OREILLE SCHOOL legal rules. “An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question,” Miller, 474 U.S. at 113, and this is not a situation in which the fact-finding process has any potential to “cross[ ] the line . . . into the realm of a legal rule upon which the reviewing court must exercise its own inde- pendent judgment,” Bose Corp., 466 U.S. at 501 n.17. Indeed, although a fact-finder’s determination as to a plaintiff’s job responsibilities may at times appear in itself dispositive of the protected status inquiry, the “rule of independent review” will always require the court independently to evaluate the ulti- mate constitutional significance of the facts as found. Id. at 500-01. [6] Accordingly, we conclude that the third element of the protected status inquiry—whether the plaintiff spoke as a pub- lic employee or a private citizen—is a mixed question of fact and law. We further conclude that the pleadings and evidence in this case present genuine disputes of material fact regarding the scope and content of Posey’s job responsibilities. B. The Content of Posey’s Letter and the School District’s Justification for Adverse Employment Action Determining that there are genuine disputes of material fact as to Posey’s employment duties does not necessarily mean, however, that the grant of summary judgment was improper. If Posey’s letter and subsequent meeting were to fail either of the other two elements of the protected status inquiry, then summary judgment would have been appropriate on these alternate grounds. We conclude, however, that Posey’s speech did raise matters of public concern and, as the School District has already conceded, there was no “adequate justification for treating [him] differently from any other member of the gen- eral public.” Garcetti, 547 U.S. at 418 (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). POSEY v. LAKE PEND OREILLE SCHOOL 14545 [7] “ ‘[C]ommunication on matters relating to the function- ing of government . . .’ [such as] misuse of public funds, wastefulness, and inefficiency in managing and operating government entities are matters of inherent public concern,” regardless of the purpose for which they are made. Johnson v. Multnomah County, Or., 48 F.3d 420, 425 (9th Cir. 1995) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion))). Here, there is little doubt that Posey’s assertions about the inadequacy and inefficacy of school security and safety policies were “ ‘re- levan[t] to the public’s evaluation of the performance of’ ” the school’s administration. Freitag, 468 F.3d at 545 (quoting Coszalter, 320 F.3d at 973-74).5 Principal Soper’s alleged failure to address Posey’s initial expressions of concern is therefore “undoubtedly of great public interest” in itself, but “the specific allegations in this case [are particularly] mat- ter[s] of acute concern to the entire community.” Id. (empha- sis added). School staff members presumably come into contact with students on a daily basis. Whether they have committed acts of sexual harassment or rape certainly is of “grave concern,” id. at 545, to the parents of those students. So too is whether fires had occurred in school buildings with- out proper student evacuation, and whether students had brought deadly weapons onto school premises and threatened the lives of staff members. These matters would be of great importance to any community concerned with the safety of its school children. Posey’s letter thus was unquestionably “re- late[d] to . . . issue[s] of ‘political, social, or other concern to 5 That a portion of Posey’s letter addressed personal grievances is not relevant. In Connick, the Supreme Court considered whether an internal questionnaire prepared by the plaintiff raised a matter of public concern, concluding it was sufficient for First Amendment purposes that only “one of the questions in Myers’ survey touched upon a matter of public con- cern.” 461 U.S. at 149. We therefore agree with the Sixth Circuit that statements presenting “mixed questions of private and public concern” properly fall within the scope of First Amendment protection. See Bonnell v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001). 14546 POSEY v. LAKE PEND OREILLE SCHOOL the community’ ” sufficient to satisfy the First Amendment. Gilbrook v. City of Westminster, 177 F.3d 839, 866 (9th Cir. 1999) (quoting Connick, 461 U.S. at 146-47). [8] There is also no dispute that the School District lacked “an adequate justification for treating the employee differ- ently from any other member of the general public,” Garcetti, 547 U.S. at 418 (citing Pickering, 391 U.S. at 568). Indeed, the School District conceded below that none of Posey’s statements adversely affected the School District’s mission or impinged on the efficiency of its operations. CONCLUSION Agreeing with the Third, Seventh, and Eighth Circuits, we hold that after Garcetti the inquiry into the protected status of speech presents a mixed question of fact and law, and specifi- cally that the question of the scope and content of a plaintiff’s job responsibilities is a question of fact. [9] District courts should therefore determine first whether “the expressions in question were made by the speaker ‘ . . . upon matters of public concern,’ ” Garcetti, 547 U.S. at 416 (quoting Connick, 461 U.S. at 146-47), and second whether the state lacked “adequate justification for treating the employee differently from any other member of the general public,” id. at 418 (citing Pickering, 391 U.S. at 568). “If the answer [to both questions] is yes, then the possibility of a First Amendment claim arises.” Id. at 418 (emphasis added). [10] After having answered each affirmatively, only then should the court consider whether the plaintiff spoke as a pri- vate citizen or a public employee. But when there are genuine and material disputes as to the scope and content of the plain- tiff’s job responsibilities, the court must reserve judgment on this third prong of the protected status inquiry until after the fact-finding process. POSEY v. LAKE PEND OREILLE SCHOOL 14547 [11] Here, Posey spoke on matters of public concern, and the School District lacked adequate justification to treat him differently from other citizens. Because there are genuine dis- putes of material fact regarding his job responsibilities, we REVERSE the grant of summary judgment and REMAND the case to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3053849/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LAURA HOFFMAN, an individual, on  behalf of herself and all others No. 07-55616 similarly situated, Plaintiff-Appellant,  D.C. No. CV-06-00571-AJG v. OPINION CITIBANK (SOUTH DAKOTA), N.A., Defendant-Appellee.  Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Argued and Submitted June 9, 2008—Pasadena, California Filed October 14, 2008 Before: Stephen Trott, Sydney R. Thomas and Raymond C. Fisher, Circuit Judges. Per Curiam Opinion; Concurrence by Judge Trott 14485 14488 HOFFMAN v. CITIBANK COUNSEL Barry L. Kramer, Law Offices of Barry L. Kramer, Los Ange- les, California, and Gretchen A. Carpenter, Strange & Carpen- ter, Los Angeles, California, for the plaintiff-appellant. Julia B. Strickland, Stroock & Stroock & Lavan LLP, Los Angeles, California, for the defendant-appellee. OPINION PER CURIAM: Plaintiff-Appellant Laura Hoffman (“Hoffman”) appeals the district court’s order compelling arbitration in her class action suit against her credit card company, Defendant- Appellee Citibank (South Dakota) N.A. (“Citibank”). The dis- trict court found that Hoffman was party to an arbitration agreement that waived her right to proceed on a class basis. Applying South Dakota law — the law chosen in the credit card agreement — the district court enforced the class arbitra- tion waiver and ordered Hoffman to proceed on a non-class basis. Nonetheless, the district court found substantial grounds for a difference of opinion regarding a controlling HOFFMAN v. CITIBANK 14489 issue of law, “whether California law or South Dakota law should be used to determine the enforceability of the arbitra- tion agreement,” and issued an order for immediate appeal. The case was stayed without completion of discovery. We granted permission for the appeal, and we have jurisdiction under 28 U.S.C. § 1292(b). Because we are persuaded that the district court’s order compelling arbitration erroneously relied on cases that do not properly apply California choice of law rules, we remand for a determination of whether California or South Dakota law applies to the class arbitration waiver. FACTUAL AND PROCEDURAL BACKGROUND In 1994, Hoffman opened a credit card account with Citi- bank subject to a written credit card agreement. The card agreement contained a choice of law provision stating that “[t]he terms and enforcement of this Agreement shall be gov- erned by South Dakota and federal law.” The agreement per- mitted Citibank to change its terms by mailing Hoffman written notification of the change at least 15 days before the effective billing cycle. Upon receiving notice, Hoffman was provided 25 days to reject the changes in writing. Silence or using the card was deemed acceptance of the changes in accordance with South Dakota Codified Laws § 54-11-10. Approximately seven years later, following the procedures set forth in § 54-11-10, Citibank mailed Hoffman a “Notice of Change in Terms Regarding Binding Arbitration to Your Citi- bank Card Agreement.” The added arbitration provision stated, in pertinent part: ARBITRATION: PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, 14490 HOFFMAN v. CITIBANK INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. Agreement to Arbitrate: Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”). Claims Covered: • What Claims are subject to arbitration? . . . Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitra- tor may award relief only on an individual (non- class, non-representative) basis. * * * • Broadest Interpretation. Any questions about whether Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced. This arbitration provision is governed by the Federal Arbitration Act (the “FAA”). * * * • Who can be a party? Claims must be brought in the name of an individual person or entity and must HOFFMAN v. CITIBANK 14491 proceed on an individual (non-class, non- representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If you or we require arbitration of a Claim, neither you, we, nor any other person may pursue the Claim in arbi- tration as a class action, private attorney general action or other representative action, nor may such Claim be pursued on your or our behalf in any litiga- tion in any court. Claims, including assigned Claims, of two or more persons may not be joined or consoli- dated in the same arbitration. The arbitration provision also included terms giving the card- member the option to sue in small claims court and requiring Citibank to reimburse or advance arbitration fees under cer- tain circumstances. Citibank printed the following message on Hoffman’s October 2001 statement alerting her to the enclosed notice: PLEASE SEE THE ENCLOSED CHANGE IN TERMS NOTICE FOR IMPORTANT INFORMA- TION ABOUT THE BINDING ARBITRATION PROVISION WE ARE ADDING TO YOUR CITI- BANK CARD AGREEMENT. The change in terms provided that the arbitration provision would become effective on the day after the closing date appearing on Hoffman’s November 2001 billing statement. Hoffman’s November 2001 statement included a reminder advising her to call Citibank if she wanted another copy of the arbitration provision. The change in terms expressly gave Hoffman “Non- Acceptance Instructions”: If you do not wish to accept the binding arbitration provision contained in this change in terms notice, 14492 HOFFMAN v. CITIBANK you must notify us in writing within 26 days after the Statement/Closing date indicated on your November 2001 billing statement stating your non acceptance. . . . If you notify us by that time that you do not accept the binding arbitration provisions contained in this change in terms notice, you can continue to use your card(s) under your existing terms until the end of your current membership year or the expiration date on your card(s), whichever is later. At that time your account will be closed and you will be able to pay off your remaining balance under your existing terms. (Emphasis added.) Hoffman did not notify Citibank of her non-acceptance and continued to use her account by making additional charges and payments. Had she notified Citibank of her non-acceptance, it appears that her relationship with Citi- bank would have continued without change for the duration of the agreement. Hoffman brought this consumer action in California state court against Citibank on behalf of herself and other similarly situated California cardholders. Hoffman alleged that Citi- bank increased the class members’ interest rates retroactively, without advance notice, resulting in additional lump sum finance charges being improperly imposed. The suit was ini- tially brought in California state court but was removed to federal court by Citibank. The operative pleading, the First Amended Complaint, alleges a violation of the Unfair Com- petition Law, California Business & Professions Code §§ 17200, et seq.1 1 The initial pleading alleged a violation of California’s Consumer Legal Remedies Act, California Civil Code §§ 17500, et seq. (“CLRA”). Hoff- man indicates she will not pursue her CLRA claim on remand, and does not base this appeal on her CLRA pleadings in the light of Berry v. Am. Express Publ’g, Inc., 54 Cal. Rptr. 3d 91, 92 (Cal. Ct. App. 2007) (holding that the CLRA does not apply to credit card transactions). HOFFMAN v. CITIBANK 14493 Before filing an answer, Citibank filed a motion to compel arbitration and stay proceedings. The district court issued an order granting Citibank’s motion to compel arbitration of Hoffman’s claims on an individual, non-class basis. In that order, the district court found that Hoffman was party to an arbitration agreement that was subject to a choice of law provision favoring South Dakota law. The district court then concluded without further analysis that the choice of law provision was enforceable, and thus South Dakota law gov- erned the agreement. Applying South Dakota law, the district court concluded that the class arbitration waiver was not unconscionable and was enforceable. Hoffman subsequently moved to certify the district court’s order compelling arbitration for immediate appeal. The dis- trict court granted Hoffman’s motion, finding that the choice of law issue presented substantial grounds for difference of opinion and was a controlling question of law, the appeal of which would materially advance the litigation. We granted Hoffman’s petition for permission to be heard. STANDARD OF REVIEW AND BURDEN OF PROOF We review de novo a district court’s order compelling arbi- tration. See Davis v. O’Melveny & Myers, 485 F.3d 1066, 1072 (9th Cir. 2007). An arbitration agreement governed by the Federal Arbitration Act is presumed to be valid and enforceable. See Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226-27 (1987). The applicable state law controls whether an arbitration agreement is unconscionable and, therefore, unenforceable. See Doctor’s Assocs., Inc. v. Casa- rotto, 517 U.S. 681, 686-87 (1996). “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000). 14494 HOFFMAN v. CITIBANK DISCUSSION I. The Need for Remand [1] Federal courts sitting in diversity look to the law of the forum state when making choice of law determinations. See Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th Cir. 2005). In this case, Hoffman sued in California. When an agreement contains a choice of law provision, California courts apply the parties’ choice of law unless the analytical approach articulated in § 187(2) of the Restatement (Second) of Conflict of Laws (“§ 187(2)”) dictates a different result. See Discover Bank v. Superior Court, 113 P.3d 1100, 1117 (Cal. 2005). The California Supreme Court has held that under California’s choice of law analysis, a court must deter- mine as a threshold matter “whether the chosen state has a substantial relationship to the parties or their transaction, or . . . whether there is any other reasonable basis for the parties’ choice of law.” Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148, 1152 (Cal. 1992). If either of these tests is satis- fied, the second inquiry is whether the “chosen state’s law is contrary to a fundamental policy of California.” Id. If such a conflict with California law is found, “the court must then determine whether California has a materially greater interest than the chosen state in the determination of the particular issue.” Id. (internal quotations marks omitted). [2] Here, the district court found that determining which law applied posed a close call, yet its order did not follow the requisite California choice of law analysis. Instead, in decid- ing to apply South Dakota law to determine the enforceability of the class arbitration waiver, the district court reasoned: Two respected judges in this district facing almost the same facts have ruled that under Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459 [834 P.2d 1148] (1992), South Dakota law governs any enforceability or unconscionability defenses to the HOFFMAN v. CITIBANK 14495 arbitration clause. Egerton [v. Citibank, N.A.], 2004 WL 1057739, at 2 [(C.D. Cal. Feb. 18, 2004)]; Lowman v. Citibank (South Dakota) N.A., CV 05- 8097 RGK, slip op. at 3 (C.D. Cal. March 24, 2006). [3] To understand the district court’s reasoning, we look to both Egerton and Lowman. Neither decision properly applied California’s choice of law rules articulated in § 187(2) and Nedlloyd, and therefore the district court should not have exclusively relied on those decisions. The court in Egerton merely mentioned Nedlloyd in a conclusory statement without describing its analytical framework before concluding “that South Dakota law controls enforceability and the uncons- cionability defense.” Egerton, 2004 WL 1057739, at 2. The court in Lowman similarly concluded that “pursuant to Ned- lloyd . . . South Dakota law governs” without providing any additional choice of law analysis. Lowman, CV 05-8097 RGK, slip op. at 3. Because neither court adequately applied California’s choice of law analysis, it was error for the district court to rely exclusively on Egerton and Lowman to conclude that South Dakota law governs here. Instead, the district court was required to explicitly apply the analytical approach artic- ulated in § 187(2) and Nedlloyd to the particular facts of this case. We remand for that analysis. II. Analysis on Remand [4] Hoffman concedes that South Dakota has a “substantial relationship” to the instant transaction. Thus, on remand the district court should focus on the second step of the Nedlloyd test and specifically address whether the enforceability of this class arbitration waiver under South Dakota law is contrary to a fundamental policy of California.2 California has a funda- 2 We agree with the district court’s conclusion that Citibank’s class arbi- tration waiver is not procedurally unconscionable under South Dakota law and therefore is enforceable if South Dakota law controls. See S. D. CODI- FIED LAWS § 54-11-10; see also Nygaard v. Sioux Valley Hosp. & Health Sys., 731 N.W.2d 184, 195 (S.D. 2007) (requiring both substantive and procedural unconscionability when reviewing a contract). 14496 HOFFMAN v. CITIBANK mental policy against unconscionable class arbitration wai- vers. See Klussman v. Cross Country Bank, 36 Cal. Rptr. 3d 728, 739-40 (Cal. Ct. App. 2005); see also CAL. CIV. CODE § 1668.3 The California courts have explained the need for this policy, reasoning that a defendant could “essentially grant[ ] itself a license to push the boundaries of good busi- ness practices to their furthest limits, fully aware that rela- tively few, if any, customers will seek legal remedies” and that “[t]he potential for millions of customers to be over- charged small amounts without an effective method of redress cannot be ignored.” Klussman, 36 Cal. Rptr. 3d at 739 (inter- nal quotation marks omitted) (quoting Discover Bank, 113 P.3d at 1108). Thus, if Citibank’s class arbitration waiver is unconscionable under California law, enforcement of the waiver under South Dakota law would be contrary to a funda- mental policy of California. Whether a specific class arbitration waiver is unconsciona- ble under California law turns on (1) whether the agreement is a consumer contract of adhesion drafted by a party that has superior bargain- ing powers; (2) whether the agreement occurs in a setting in which disputes between the contracting parties predictably involve small amounts of dam- ages; and (3) whether it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con- sumers out of individually small sums of money. Shroyer v. New Cingular Wireless Serv., Inc., 498 F.3d 976, 983 (9th Cir. 2007) (internal quotation marks omitted); see also Klussman, 36 Cal. Rptr. 3d at 739-40 (citing Discover 3 In addition, various district courts in California have followed Kluss- man’s analysis. See, e.g., Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061, 1066 (N.D. Cal. 2007); Brazil v. Dell, Inc., No. C-07-01700, 2007 WL 2255296 at 4 (N.D. Cal. Aug. 3, 2007). HOFFMAN v. CITIBANK 14497 Bank, 113 P.3d at 1110). Although this test has both substan- tive and procedural elements, these components exist on a sliding scale such that they need not be present in the same degree. See Armendariz v. Found. Health Psychcare Serv., Inc., 6 P.3d 669, 690 (Cal. 2000). Instead, “even if the evi- dence of procedural unconscionability is slight, strong evi- dence of substantive unconscionability will tip the scale and render the arbitration provision unconscionable.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1281 (9th Cir. 2006) (en banc); see also Gatton v. T-Mobile USA, Inc., 61 Cal. Rptr. 3d 344, 356 (Cal. Ct. App. 2007) (“[U]nder Armendariz, we conclude that courts are not obligated to enforce highly unfair provisions that undermine important public policies simply because there is some degree of consumer choice in the mar- ket.”) (internal citation omitted). [5] Citibank’s class arbitration waiver would be substan- tively unconscionable under California law on the facts alleged. Hoffman claims that Citibank’s challenged billing practice resulted in an additional finance charge of approxi- mately $68, which easily constitutes the requisite “small amount of damages.” See Oestreicher v. Alienware Corp., 502 F. Supp. 2d 1061, 1067-68 (N.D. Cal. 2007) (finding an amount of over $4,000 “not substantial”); Cohen v. DirectTV, Inc., 48 Cal. Rptr. 3d, 813, 820 (Cal. App. 2006) (holding $1,000 insufficient to warrant individual litigation). Hoff- man’s allegation that Citibank adopted this practice to ensure that it could charge a higher interest rate for at least a month before the affected customers could do anything to avoid these charges qualifies as a “scheme to deliberately cheat large numbers of consumers out of individually small sums of money.” Discover Bank, 113 P.3d at1108; see Cohen, 48 Cal. Rptr. 3d at 820-21.4 4 Citibank argues that Hoffman’s allegations are insufficient to prove that the class arbitration waiver is unconscionable and therefore the Fed- eral Arbitration Act requires enforcement of the arbitration agreement. This argument misunderstands the important, albeit slight, difference 14498 HOFFMAN v. CITIBANK [6] With respect to procedural unconscionability, it is plain that Citibank was in a superior bargaining position to Hoff- man and that Citibank’s contract was offered in such a way that Hoffman was unable to negotiate its terms. These two elements often render a contract provision oppressive, and therefore procedurally unconscionable. See Gatton, 61 Cal. Rptr. 3d at 352-53; Flores v. Transamerica HomeFirst, Inc., 113 Cal. Rptr. 2d 376, 381-82 (Cal. App. 2001). The disposi- tive questions that the district court has thus far not addressed, however, are the practical impacts of Citibank’s “non- acceptance instructions” and whether, when placed on Cali- fornia’s sliding scale, the non-acceptance provision renders the class arbitration waiver conscionable when compared to the degree of substantive unconscionability. We have held that providing a “meaningful opportunity to opt out” can pre- clude a finding of procedural unconscionability and render an arbitration provision enforceable. See Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1199 (9th Cir. 2002). In contrast, although “bill stuffer” amendments are not per se unconscio- nable, Discover Bank, 113 P.3d at 159-63, a California court has held that a “bill stuffer” that includes a class arbitration waiver provision that the customer is deemed to accept unless she closes her account is procedurally unconscionable. See Cohen, 48 Cal. Rptr. 3d at 819-20. Moreover, two district courts in our circuit have determined that the ability to rescind a contract within 21 or 30 days does not necessarily insulate class arbitration waivers within such contracts from proce- dural unconscionability. See Oestreicher, 502 F.Supp.2d at between determining that South Dakota’s enforcement of an unconsciona- ble provision is counter to a fundamental policy of California and actually finding the provision unconscionable under the substantive law of con- tract. In the choice of law context, California courts applying Nedlloyd and Discover Bank require only that “the allegations allege the defendant has ‘carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money.’ ” Klussman, 36 Cal. Rptr. 3d at 739 (emphasis added) (quoting Discover Bank, 113 P.3d at 1108); see also Shroyer, 498 F.3d at 983. HOFFMAN v. CITIBANK 14499 1070; Brazil v. Dell Inc., No. C-07-01700, 2007 WL 2255296, at 8 (N.D. Cal. Aug. 3, 2007). Additionally, this circuit has “consistently followed the courts that reject the notion that the existence of ‘marketplace alternatives’ bars a finding of procedural unconscionability.” Shroyer, 498 F.3d at 985. [7] Given this legal landscape, we remand to the district court so that it may conduct additional fact finding regarding the nature and scope of Citibank’s “instructions for non- acceptance” provision to determine whether the waiver pro- vided enough of a meaningful opportunity to opt out to be enforceable. Expanding the record with respect to issues such as how much additional time the expiration date cutoff typi- cally provides, how many customers exercise their ability to opt out and whether other banks use similar provisions will enable the court to determine whether Citibank provided an “actual, meaningful, and reasonable choice” such that its class arbitration waiver is not procedurally unconscionable. Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101, 1106 (9th Cir. 2003).5 III. Conclusion We respectfully conclude that the district court erred because it did not apply California’s choice of law analysis as articulated in Restatement § 187(2) and Nedlloyd, and more 5 Under Nedlloyd, if there is a fundamental conflict with California law, then the choice of law analysis would turn to whether California has a materially greater interest than South Dakota in the outcome of this case. See Nedlloyd, 834 P.2d at 1152. Because the procedural unconscionability of the class arbitration waiver remains an open question, it is premature to reach a holding on the materially greater interest prong of this test. Nev- ertheless, because the district court expressed some confusion on this issue, we emphasize that the instant case is distinguishable from the two cited by the district court because it was brought by a California resident, on behalf of a California-only class, under a California statute for an allegedly deceptive practice whose injury was felt in California. See Oestreicher, 502 F. Supp. 2d at 1069; see also Klussman, 36 Cal. Rptr. 3d at 741. 14500 HOFFMAN v. CITIBANK specifically because it did not address whether Citibank’s class arbitration waiver, accompanied by a non-acceptance provision, is unconscionable under California law. This panel retains jurisdiction over any future appeals. REVERSED and REMANDED. TROTT, Circuit Judge, concurring: Given the narrow question presented by this appeal, I con- cur in our per curiam opinion. Nevertheless, I add some observations designed, I hope, to shed light on remand on the underlying question: is the arbitration “agreement” — includ- ing a class arbitration waiver — enforceable, or not. California law is far from settled. In Citibank (South Dakota), N.A. v. Walker, No. A117770, slip op. at 8 (Cal. Ct. App. September 11, 2008), Division Four of the First Appel- late District held in an unpublished opinion that the arbitration waiver at issue is not unconscionable or unenforceable under California law. In so holding, that court focused on a card- holder’s choices: Here, although the change was made in a “bill stuff- er,” Walker was given an opportunity to opt out of arbitration. By opting out of the amendment, Walker would have been permitted to use his card until it expired, at which time he would have been able to pay off his balance under the existing terms. This does not present the same take it or leave it scenario found to be procedurally unconscionable in Discover Bank [v. Superior Court, 113 P.3d 1100 (Cal. 2005).] Moreover, Discover Bank [v. Superior Court] does not stand for the proposition that “bill stuffer” amendments are per se unconscionable. HOFFMAN v. CITIBANK 14501 Rather, it focuses on the take it or leave it nature of the contractual modification. Walker, No. A117770, slip op. at 10 (citation omitted). However, Division Seven of the Second Appellate District held in Firchow v. Citibank (South Dakota), N.A., No. B187081, 2007 Cal. App. Unpub. LEXIS 178, at 26 (Ct. App. Jan. 10, 2007), that the “agreement” under our legal microscope is unconscionable. This brings us to Jones v. Citigroup, Inc., 38 Cal. Rptr. 3d 461 (Ct. App. 2006). In Jones, Division Three of the Fourth Appellate District declined to conclude that a similar attempt to avoid classwide arbitration was unconscionable under Cali- fornia law: Our case is different [from Discover Bank v. Supe- rior Court]. Here, although the change was made in a “bill stuffer,” plaintiffs were given an opportunity to opt out of arbitration. By giving written notice of their rejection of the amendment, they could con- tinue to use their cards until the cards expired and then would be able to pay off their balances under the terms of their existing agreement without accel- eration. This does not present the take it or leave it scenario described in Discover [Bank v. Superior Court] or Szetela [v. Discover Bank, 118 Cal. Rptr. 2d 862 (Ct. App. 2002),] as being procedurally unconscionable. Rather, it appears that defendant was cognizant of the oppressive nature of forcing a nonconsenting cardholder to either agree to arbitra- tion or immediately cancel the account and took steps to avoid it. Jones, 38 Cal. Rptr. 3d at 465. The good news, if there is any good news in all of this, is that the California Supreme Court vacated and remanded the 14502 HOFFMAN v. CITIBANK Jones decision for further proceedings in light of its decision in Gentry v. Superior Court, 165 P.3d 556 (Cal. 2007). Jones v. Citigroup, Inc., 171 P.3d 547 (Cal. 2007). There it is. Mixed signals from the California courts. One hopes on remand in this case that the legal dust will soon set- tle and that our district court will have some reliable authority upon which to base its decision.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056786/	[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-16112 ELEVENTH CIRCUIT OCTOBER 2, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK D. C. Docket Nos. 08-81395-CV-KLR ; 06-80143 CR-KLR CHARLES T. MCDANIEL, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (October 2, 2012) Before BARKETT, PRYOR and FAY, Circuit Judges. PER CURIAM: Charles McDaniel, a federal prisoner serving a total 57-month sentence after pleading guilty to multiple firearm-related charges, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. For the reasons set forth below, we affirm. I. In 2006, McDaniel pleaded guilty to seven counts of making false statements in connection with gun purchases and seven counts of possessing a firearm while being a convicted felon. He was assigned an enhanced base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because he had unlawfully possessed firearms subsequent to sustaining a felony conviction for a crime of violence, namely, driving under the influence (“DUI”). McDaniel initially objected to his DUI offense being classified as a crime of violence. However, he voluntarily withdrew this objection as part of an agreement with the government. The district court sentenced him to 57 months in prison and three years of supervised release on each count, all terms to be served concurrently. McDaniel filed a notice of appeal, but then successfully moved to dismiss the appeal with prejudice. In 2008, McDaniel timely filed a § 2255 motion alleging that a DUI conviction could no longer be considered a crime of violence in light of the Supreme Court’s decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and, thus, the increase in his base offense level was 2 illegal. He sought retroactive application of Begay, a 6-level reduction in his base offense level, and a corresponding 27-month reduction in his sentence. The government responded that McDaniel’s claim was not cognizable under § 2255 because the alleged error was not constitutional and did not result in a fundamental miscarriage of justice. The government also argued that the claim was procedurally defaulted because McDaniel failed to raise it on direct appeal. The magistrate judge, relying on an unpublished decision by a panel of this Court, found that McDaniel’s claim was not cognizable under § 2255 because it was non-constitutional and could have been, but was not, raised on direct appeal. The district court ultimately adopted the magistrate’s report and denied the § 2255 motion. We granted a certificate of appealability (“COA”) on the issue of whether the district court erred in finding that McDaniel’s claim was not cognizable under § 2255.1 II. In a § 2255 proceeding, we review questions of law de novo and the district 1 We note that, while McDaniel’s appeal was pending in this Court, he was released from prison. This does not render the instant appeal moot because McDaniel is still serving his term of supervised release, which involves restrictions on his liberty. See Dawson v. Scott, 50 F.3d 884, 885-86 & n.2 (11th Cir. 1995) (declining to dismiss as moot the appeal of a 28 U.S.C. § 2241 habeas petitioner who challenged his term of imprisonment, as the petitioner was still serving his term of supervised release); United States v. Page, 69 F.3d 482, 487 & n.4, 495 (11th Cir. 1995) (declining on direct appeal to dismiss the defendants’ challenges to their sentences, as the defendants were still on supervised release). 3 court’s findings of fact for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). Although we granted the COA on the threshold issue of whether McDaniel’s claim was cognizable under § 2255, we decline to reach this issue and instead hold that his claim was barred under the doctrine of procedural default. See McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011) (declining to address the issue of cognizability, framed as the threshold issue in the COA, and instead denying the movant’s § 2255 claim on grounds of procedural default); see also Lynn, 365 F.3d at 1233 (“In many cases in the past, this Court has opted to address the issues of procedural default . . . without expressly addressing the threshold inquiry of whether the claimed error is even cognizable in a § 2255 proceeding.”). Under the rule of procedural default, “a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn, 365 F.3d at 1234. A defendant may avoid a procedural bar by establishing one of the two exceptions to the procedural default rule. Id. Under the first exception, “a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Id. If a defendant fails to establish cause and prejudice, he may still be entitled to relief if he can show that he is “actually 4 innocent.” Id. at 1234-35. In this case, McDaniel has procedurally defaulted on his claim because he failed to raise it on direct appeal. See id. at 1234. In fact, he affirmatively withdrew his objection to his DUI offense being considered a crime of violence. Thus, McDaniel is not eligible for § 2255 relief unless he shows (1) cause and prejudice, or (2) actual innocence. See id. McDaniel does not allege cause and prejudice on appeal to this Court, and, therefore, we will not consider the issue. See McKay, 657 F.3d at 1196 (declining to consider the issue of cause and prejudice where the defendant did not raise it on appeal). As to actual innocence, our recent decision in McKay resolves the question against McDaniel. In McKay, the defendant claimed in a § 2255 motion that he was erroneously sentenced as a career offender because, in light of Begay, his prior conviction did not qualify as a crime of violence under the Guidelines. Id. at 1194-95. We held that the actual-innocence exception did not excuse the defendant’s procedural default. Id. at 1198-1200. We reasoned that his claim concerned only legal innocence, not factual innocence, because he did not allege that he did not commit the offense underlying his prior conviction. Id. at 1199. Likewise, because McDaniel does not assert that he was factually innocent of the DUI offense, his claim rests only on legal innocence and does not fall within the 5 actual-innocence exception. See id. Accordingly, McDaniel failed to present a valid excuse for procedurally defaulting on his § 2255 claim, and we affirm the district court’s denial of his § 2255 motion. AFFIRMED. 6	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056787/	Case: 11-14853 Date Filed: 10/01/2012 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-14853 Non-Argument Calendar ________________________ D.C. Docket Nos. 3:10-cv-01101-VMC-TEM 3:07-cr-00112-VMC-TEM-1 WALTER BYRON LEWIS, lllllllllllllllll lllllllllllllllllllllllPetitioner-Appellant, versus UNITED STATES OF AMERICA, llllllllllll lllllllll lllllllllllllllllllRespondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (October 1, 2012) Before CARNES, MARCUS and WILSON, Circuit Judges. PER CURIAM: Case: 11-14853 Date Filed: 10/01/2012 Page: 2 of 7 Walter Lewis, a federal prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We granted a certificate of appealability as to the issue of “[w]hether the district court erred in denying, without an evidentiary hearing, Lewis’s claim that counsel rendered ineffective assistance by refusing to allow him to testify at the suppression hearing, despite his express request to do so.” The suppression hearing involved challenges to large amounts of money seized in two separate vehicle stops, one where Lewis was the driver and sole occupant, and one where he was a passenger. On appeal, Lewis argues that the district court erred in denying his ineffective assistance claim concerning his counsel’s refusal to let him testify because the magistrate judge had recommended denying his motion to suppress on the ground that Lewis had neither testified nor produced any witnesses or evidence to support his claim that he did not consent to the search. After thorough review, we affirm. When we review the denial of a § 2255 motion, we review the district court’s findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). An ineffective assistance of counsel claim is a mixed question of law and fact that we review de novo. Caderno v. United States, 256 F.3d 1213, 1216-17 (11th Cir. 2001). However, we review the district court’s denial of a § 2255 evidentiary hearing for abuse of discretion. Aron v. United States, 291 F.3d 2 Case: 11-14853 Date Filed: 10/01/2012 Page: 3 of 7 708, 714 n.5 (11th Cir. 2002). Courts construe pro se habeas motions more liberally than those filed by attorneys. Id. at 715. In a § 2255 motion, if the prisoner alleges facts that, if true, would entitle him to relief, a district court should order an evidentiary hearing. Id. at 714-15. But a district court is not required to hold a hearing if the petitioner’s claims are affirmatively contradicted by the record or are patently frivolous. Id.; see also 28 U.S.C. § 2255(b) (establishing an exception to the evidentiary hearing requirement where the record conclusively shows that the prisoner is entitled to no relief). To succeed on a claim of ineffective assistance, a defendant must show that (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must satisfy both the performance and prejudice prongs to satisfy Strickland. Id. To establish prejudice, the defendant must demonstrate that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the case would have been different. Id. at 694. In Fourth Amendment analysis, generally, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 809-10 (1996). The officers’ subjective motivations for a search do not invalidate an otherwise objectively justified 3 Case: 11-14853 Date Filed: 10/01/2012 Page: 4 of 7 search. Id. at 812-13. Under the established automobile exception to the warrant requirement of the Fourth Amendment, if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits police to search the vehicle. Maryland v. Dyson, 527 U.S. 465, 467 (1999). If a police officer detects the odor of marijuana, this gives rise to probable cause for a warrantless search. United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc). The passenger of a vehicle may challenge the constitutionality of the vehicle’s stop. Brendlin v. California, 551 U.S. 249, 251 (2007). However, a passenger in a private car, who has no possessory interest in the automobile, does not have a legitimate expectation of privacy in the interior of the automobile, and, therefore, cannot contest the vehicle’s search on Fourth Amendment grounds. See Rakas v. Illinois, 439 U.S. 128, 140, 143 n.12, 148 (1978). The operator of a motor vehicle with expired registration commits a traffic infraction. Fla. Stat. Ann. § 320.07(3) (2012). The operator of a motor vehicle with faulty mirrors commits a traffic infraction. Fla. Stat. Ann. §§ 316.215(1) and 316.294 (2012). Here, the district court did not abuse its discretion in denying an evidentiary hearing because, even if Lewis’s counsel violated a constitutionally protected right that Lewis be allowed to testify, the error did not result in prejudice. See Strickland, 4 Case: 11-14853 Date Filed: 10/01/2012 Page: 5 of 7 466 U.S. at 694.1 Lewis claims that he would have proffered testimony in the suppression hearing that he did not consent to the search of his vehicle and that the officer did not smell marijuana emanating from his vehicle.2 However, the evidence in the record established that the officers had probable cause to believe that the vehicles in each stop were being used to facilitate narcotics transactions and might contain contraband. First and foremost, immediately preceding both seizures, authorities monitored conversations between a cooperating informant and Lewis in regard to planned narcotics transactions. This probable cause, established for each stop and search, justified them both. See Dyson, 527 U.S. at 467. Lewis’s proffered testimony therefore would not have invalidated the probable cause that justified the stops and searches. 1 We have not expressly held that the right to testify applies to pretrial suppression hearings, but the Supreme Court has said that the right to testify “reaches beyond the criminal trial.” Rock v. Arkansas, 483 U.S. 44, 51 n.9 (1987). Because we conclude that any error concerning Lewis’s failure to testify did not result in prejudice, we need not need address whether Lewis had a constitutional right to testify at his suppression hearing. In any event, the record is insufficient to determine whether Lewis’s counsel prevented him from testifying at the suppression hearing when he requested to testify, as Lewis claims. The letter from Lewis’s counsel only established what his counsel advised him after the suppression hearing, rather than what Lewis’s counsel advised before or during the suppression hearing. 2 Lewis also argues that he would have testified that he had not consented to the interview that had followed the February 2007 search. Because his suppression motion addressed only the large sums of money that authorities had recovered during their vehicle searches, the proffered testimony concerning the post-seizure events would have been irrelevant. 5 Case: 11-14853 Date Filed: 10/01/2012 Page: 6 of 7 Moreover, the officers had alternative, independent grounds for the stops and searches. As for the February 2007 search, Officer Bishop had probable cause to stop Lewis because his vehicle had an expired tag. See Whren, 517 U.S. at 809-10. Similarly, Bishop had probable cause to search Lewis’s vehicle because he smelled marijuana coming from Lewis’s vehicle. See Tobin, 923 F.2d at 1512. In addition, Officer Bishop testified that Lewis said that Bishop could search the vehicle; thus, at most, Lewis’s proffered testimony would have been balanced against Officer Bishop’s testimony. In light of the full record, Lewis has not shown that his proffered testimony would have led to the granting of his motion to suppress the money seized from the February 2007 search. As for the March 2007 search, Lewis was a passenger and therefore only had standing to contest the vehicle stop. See Brendlin, 551 U.S. at 251. However, because Officer Bishop had probable cause to stop the vehicle based on the broken side-view mirror, Lewis’s proffered testimony would not have invalidated the probable cause that justified the stop. See Whren, 517 U.S. at 809-10. Further, the vehicle’s driver, John Winn, consented to the search of the vehicle; since Lewis lacked standing to contest the search, Lewis’s proffered testimony would not have invalidated the search that uncovered the money. See Rakas, 439 U.S. at 140, 143 6 Case: 11-14853 Date Filed: 10/01/2012 Page: 7 of 7 n.12, 148. As a result, Lewis’s proffered testimony would have not affected the denial of his motion to suppress the money seized from the March 2007 search. In short, because Lewis’s proffered testimony would not have changed the outcome of the denial of his motion to suppress, the refusal of Lewis’s counsel to allow him to testify at the suppression hearing could not have resulted in Strickland prejudice. See Strickland, 466 U.S. at 694. Without prejudice, Lewis cannot sustain a Strickland claim. Id. at 687. Therefore, the district court did not abuse its discretion in denying Lewis an evidentiary hearing on this claim. See Aron, 291 F.3d at 714-15. We affirm the denial of Lewis’s § 2255 motion. AFFIRMED. 7	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3056789/	Case: 12-10550 Date Filed: 09/28/2012 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-10550 Non-Argument Calendar ________________________ D.C. Docket No. 3:10-cr-00297-TJC-JBT-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus HENRY MANNS, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 28, 2012) Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Henry Manns appeals his 168-month sentence, an upward variance from the Case: 12-10550 Date Filed: 09/28/2012 Page: 2 of 5 10-year statutory minimum, imposed after he pleaded guilty to attempted possession with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. On appeal, Manns argues that his sentence is substantively unreasonable because the district court failed to consider and properly weigh the 18 U.S.C. § 3553(a) factors as well as the policies contained in the sentencing guidelines, and focused too much on his significant criminal history. The guideline range based on Manns’s offense level and criminal history category is 57–71 months. But the statutory minimum for his offense is 120 months, or 10 years, and the maximum is life imprisonment. Upon consideration of the § 3553(a) factors, the district court applied an upward variance, bringing the total sentence to 168 months, or 14 years. We review the substantive reasonableness of sentences under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “We may set aside a sentence only if we determine, after giving a full measure of deference to the sentencing judge, that the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc), cert denied, 131 S. Ct. 1813. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is 2 Case: 12-10550 Date Filed: 09/28/2012 Page: 3 of 5 insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. A sentence, such as this, that is outside of the guideline range is not presumptively unreasonable. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Instead, the party appealing the sentence must prove that the sentence is unreasonable in light of the record and the § 3553(a) factors. “[W]e are to vacate the sentence if, but only if, we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted). Under § 3553(a), the district court must impose a sentence “sufficient, but not greater than necessary,” to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and protect the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(1)–(2). The court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Commission, and the need to avoid unwarranted sentencing disparities. § 3553(a)(1), (3)–(7). After reviewing the record here, we conclude that Manns 3 Case: 12-10550 Date Filed: 09/28/2012 Page: 4 of 5 has not shown that his sentence resulted from an unreasonable application of the § 3553(a) factors. Manns contends that the upward variance is substantively unreasonable because the district court put too much emphasis on his criminal history and the nature of the offense, which had already resulted in an increase of the statutory minimum under 21 U.S.C. § 841(b)(1)(B) and could have been considered under § 4A1.3 of the sentencing guidelines. Criminal history and the nature of the offense are each factors expressly made part of the § 3553(a) analysis. See § 3553(a)(1)–(2)(A). As long as the final sentence is reasonable, “a district court can rely on factors in imposing a variance that it had already considered in imposing an enhancement . . . and there is no requirement that a district court must impose an enhancement before granting a variance.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010) (internal citations omitted). The district court also indicated that it relied on other § 3553(a) factors. The court explained that a longer sentence was necessary to promote respect for the law, protect the public, and afford adequate specific deterrence insofar that this was the second time that Manns had violated the terms of his supervised release. The court also considered whether there would be an unwarranted sentence disparity among defendants with similar records and determined that any disparity 4 Case: 12-10550 Date Filed: 09/28/2012 Page: 5 of 5 would be warranted because Manns was not a typical offender and this was not just a “small-time drug involvement.” The sentencing guidelines and policy statements of the Sentencing Commission were also factors in the district court’s analysis. Finally, the district court considered the mitigating factors presented by Manns at sentencing in declining to give “even a more significant sentence.” In light of the record, Manns’s 168-month sentence is reasonable and the district court did not abuse its discretion. Accordingly, we affirm. AFFIRMED. 5	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/1886731/	609 F.Supp. 532 (1985) VOYAGEURS NATIONAL PARK ASSOCIATION DEFENDERS OF WILDLIFE, Sierra Club, National Parks and Conservation Association, Friends of the Earth, Friends of Animals and Their Environment, Help Our Wolves Live, Inc., the International Ecology Society, and the National Audubon Society, Plaintiffs, v. G. Ray ARNETT as Assistant Secretary of the Interior for Fish and Wildlife and Parks, the Department of Interior, and the Minnesota Department of Natural Resources, Defendants. Civ. No. 3-84-261. United States District Court, D. Minnesota, Third Division. March 6, 1985. Brian B. O'Neill, Amy B. Bromberg, and Cynthia Pope, law student, Minneapolis, Minn., for plaintiffs. Lisa Hemmer, Washington, D.C., and Jon Hopeman, Minneapolis, Minn., for G. Ray Arnett and the Dept. of Interior. Philip J. Olfelt, and C. Paul Farici, St. Paul, Minn., for the Minn. Dept. of Natural Resources. 533 MEMORANDUM AND ORDER RENNER, District Judge. Before the Court are 1) plaintiffs' motion for summary judgment on Count I of the Complaint; 2) defendant Minnesota Department of Natural Resources' motion to dismiss the complaint for failure to state a claim for relief; and 3) defendants G. Ray Arnett and the Department of Interior's motion for summary judgment. The Court, having accepted affidavits and exhibits on these matters, will treat all the motions as requesting summary judgment. FACTS Plaintiffs are nine environmental organizations challenging the federal approval of a state wildlife management plan governing the eastern portion of Black Bay in Rainy Lake in the state of Minnesota. The one thousand acre area at the eastern end of Black Bay is known as the Gold Portage area. It consists primarily of water, including only about thirty acres of dry land. H.Rep. No. 871, 97th Cong., 2nd Sess. 3 (1982) [hereinafter cited as "House Report"]. This tract of land and water was once a part of Voyageurs National Park (hereinafter "the Park" or "Voyageurs"). The recent history of the Gold Portage area lends perspective to this controversy. In 1971, Congress authorized Voyageurs National Park. See Pub.L. No. 91-661, 84 Stat. 1970-1973, 16 U.S.C.A. §§ 160-160k (West 1973). Before the Park could be formally established, Congress required the State of Minnesota (hereinafter "the State") to donate to the United States all State lands within the proposed park boundaries. Id. § 160a (West Supp.1984). The Gold Portage region was part of these lands. In 1975, Minnesota completed the transfer of its lands to the federal government, and the Secretary of Interior (hereinafter "the Secretary") formally established Voyageurs National Park. See Minn.Stat. § 84B.01-.10 (1984); 40 Fed.Reg. 15,921-15,922 (April 8, 1975). Inclusion of the Gold Portage region within the Park boundaries generated extensive controversy. House Report at 3. Apparently, an early version of a map representing the proposed Voyageurs National Park excluded this area and led some people to believe it would not become part of the Park. Public Land Management Policy: Hearings Before the Subcomm. on Public Lands and National Parks of the Comm. on Interior and Insular Affairs, House of Representatives, 97th Cong., 2nd Sess. 11 (1982). Once it became part of Voyageurs, National Park regulations prohibited all hunting and trapping there. 36 C.F.R. §§ 2.2, 2.4 (1984). Since the eastern end of Black Bay was reputedly one of the few good duck hunting spots in the county, local interests were, from the beginning, disgruntled with the duck hunting prohibition. Letter to George B. Hertzog from Robert L. Herbst (April 13, 1972). The federal government's authority to regulate hunting on the bay was challenged, without success. See United States v. Brown, 431 F.Supp. 56 (D.Minn.1976), aff'd, 552 F.2d 817 (8th Cir.), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977). Thereafter, the duck hunting controversy continued to inhibit the development of the Park. In an attempt to eliminate the dispute, Congress enacted the Boundary Revision Act (hereinafter "the Act"). Act of Jan. 3, 1983, Pub.L. No. 97-405, 96 Stat. 2028, 16 U.S.C.A. § 160a-1 (West Supp.1984). The Act deleted the one thousand acre region of Black Bay from the Park and transferred it back to the State. Id. § 160a-1(b)(1)(E). In return, Minnesota gave other lands to the United States for inclusion in Voyageurs. Id. § 160a-1(b)(1)(C), (D). Before the Gold Portage tract could be transferred to the State, the Act required that the State enter into an agreement satisfactory to the Secretary that: (i) the State has established a wildlife management area in the area authorized to be deleted and conveyed to the State by paragraph (1)(E); (ii) the State has prepared a plan acceptable to the Secretary to manage all the waters of and State lands riparian to 534 Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve to the fullest extent possible the purposes for which the park was established. Id. § 160a-1(b)(2)(B)(i), (ii). Paragraph (1)(E), requiring the wildlife management area, refers to the one thousand acres of Black Bay to be conveyed to the State. On September 27, 1984, the Secretary (acting through the Midwest Regional Director of the National Park Service) entered into an agreement with the State pursuant to section 160a.[1] The wildlife management plan (hereinafter "the Plan") submitted under the agreement permitted duck hunting during its established seasons. The plan also permitted trapping, stating as follows: Furbearers may only be taken by trapping during the established seasons within the established zones. Unprotected mammals may only be taken during an open trapping season for any protected species, but only during such hours and dates and by the same methods as allowed for taking protected species. The Park Service and the DNR will monitor trapping and its effects on animal populations, including incidental taking of animals for which there is no open season. If it is determined that trapping results in significant adverse effects on these populations within Voyageurs National Park, the Commissioner will further limit or prohibit trapping by order. State of Minnesota, Dep't of Natural Resources, Commissioner's Order No. 2162 (September 9, 1983) (emphasis supplied). CLAIMS OF PARTIES In Count One (I) of their Complaint, plaintiffs allege the Secretary violated the Boundary Revision Act by approving a wildlife management plan which permitted trapping in the Gold Portage area and the remainder of Black Bay. During argument, plaintiffs narrowed their request to one for declaratory relief as to the Gold Portage area. Plaintiffs request judgment declaring that the Secretary violated the Act. In Count Three (III) of the Complaint,[2] plaintiffs allege that the Secretary's approval of the Plan was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C.A. §§ 701-706 (West 1977). Finally, plaintiffs allege that the Environmental Assessment of the wildlife management plan was contrary to the National Environmental Policy Act, 42 U.S.C.A. §§ 4321-4370a (West 1977 & Supp.1984) and the Council on Environmental Quality Regulations, 40 C.F.R. §§ 1500-1517.7 (1984). 535 Defendants contend that they are entitled to summary judgment on all counts of the Complaint. They argue that the agreement between the Secretary and the State is lawful and consistent with congressional intent. Defendants further assert that the actions of the Secretary and the Fish and Wildlife Service were neither arbitrary nor capricious. Finally, defendants claim that the Environmental Assessment's finding of no significant environmental consequences was not unreasonable. ANALYSIS In ruling on a summary judgment motion, the Court must determine whether there is any issue of material fact precluding such judgment and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As to Count One (I), the parties do not dispute the facts but disagree as to their interpretations of the Boundary Revision Act. Plaintiffs reason that by permitting trapping, the Plan violates the Act because it does not "complement to the fullest extent possible the purposes for which the Park was established." See 16 U.S.C.A. § 160a-1(b)(2)(B)(ii). Plaintiffs construe the clear intent of Congress to forbid all hunting and trapping within the Gold Portage area except duck hunting. Defendants argue that Congress left approval of the Plan's hunting and trapping provisions to the Secretary's discretion. Defendants contend that the Act, on its face, does not prohibit trapping and that park purposes do not specifically preclude trapping. Furthermore, defendants interpret Congress' intent as permitting a wildlife management plan that allows trapping. 1. Facial Analysis A de novo standard of review is to be applied to agency interpretations of questions of law, such as the interpretation of a statute. First National Bank in Sioux Falls v. National Bank of South Dakota, 667 F.2d 708, 711 (8th Cir.1981). The starting point for the statutory analysis must be the plain language of the statute itself. United States Marshal Service v. Means, 741 F.2d 1053, 1056 (8th Cir.1984) (citing Kosak v. United States, 465 U.S. 848, ___, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984); United States v. Weber Aircraft Corp., 465 U.S. 792, ___, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984)). If the language is unambiguous, absent a clearly expressed legislative intent to the contrary, the language is usually considered conclusive. Id. (citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983)). As to the thousand acres involved in this dispute, the Act required two things. First, the State must establish a "wildlife management area" in the Gold Portage region. 16 U.S.C.A. § 160a-1(b)(2)(B)(i). Second, the State must develop a plan acceptable to the Secretary to manage all the waters of and State land riparian to Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve the natural resources of the area so as to complement to the fullest extent possible the purposes for which the park was established. Id. § 160a-1(b)(2)(B)(ii) (emphasis supplied). On its face, neither provision refers to hunting or trapping. Defendants argue that the absence of a specific reference to these activities indicates that they are permitted. The Court disagrees. The plain meaning of the phrase "wildlife management area" suggests that wildlife is to be managed in a particular manner. The phrase could mean that wildlife is to be managed by permitting extensive hunting and trapping designed to limit wildlife populations. Alternatively, "wildlife management" may mean that the taking of wildlife is prohibited so as to preserve natural wildlife populations. "Wildlife management area" could also refer to the term as it is used by the Minnesota Department of Natural Resources. See State of Minnesota, Dep't of Natural Resources Commissioner's Order No. 1961, Regulations Relating to the Public Use of Wildlife Management Areas, § 2. This ambiguity in the term "wildlife management area" requires the 536 Court to look elsewhere for insight into the congressional intent. Both parties seize upon section 160a-1(b)(2)(B)(ii) as support for their respective positions. Defendants contend that the language "the purposes for which the park was established" refers to section 160 of Title 16, United States Code which recites the "purpose" for Voyageurs as: to preserve, for the inspiration and enjoyment of present and future generations, the outstanding scenery, geological conditions, and waterway system which constituted a part of the historic route of the Voyageurs who contributed significantly to the opening of the Northwestern United States. 16 U.S.C.A. § 160 (West 1973). Since an explicit prohibition against trapping is not included, defendants argue that the decision to permit trapping was within the State and Secretary's discretions. Plaintiffs argue that "the purposes for which the park was established" also refers to the 1916 Organic Act in which the "fundamental purpose" of national parks is described as: to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 16 U.S.C.A. § 1 (West 1974). Since the Boundary Revision Act refers to the plural "purposes," and sections one and 160 each describe a park "purpose," the Court is of the opinion that, under the Act, "park purposes" refers to both sections one and 160. In addition, the Eighth Circuit has said that, "the fundamental purpose of national parks, including Voyageurs Park, is `to conserve ... the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave [it] unimpaired for the enjoyment of future generations.'" United States v. Brown, 552 F.2d 817, 822 n. 7 (8th Cir.), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977) (quoting 16 U.S.C.A. § 1) (emphasis supplied). To implement this purpose, the Secretary has passed regulations prohibiting all hunting and trapping within national parks. 36 C.F.R. §§ 2.2, 2.4 (1984). Plaintiffs argue that if park purposes require that wildlife be unimpaired for the enjoyment of future generations, then the Plan's trapping provision violates the Act because it does not "complement [park purposes] to the fullest extent possible" as stated in section 160a-1(b)(2)(B)(ii). Congress structured the Boundary Revision Act to treat the Gold Portage area separately. This region alone was designated as a "wildlife management area." 16 U.S. C.A. § 160a-1(b)(2)(B)(i). Because it was national parkland, Congress had a strong interest in controlling the tract's future uses. Furthermore, the Gold Portage area extends into national park territory much like a peninsula extends into a body of water. Congress, however, required that the Gold Portage area, as well as all of the State-owned lands and waters of Rainy Lake, be managed so as to complement park purposes to the fullest extent possible. Id. § 160a-1(b)(2)(B)(ii). If the Court were to construe this section to prohibit trapping as inconsistent with park purposes, it would impose federal regulations against trapping upon all State owned waters of, and land riparian to, Rainy Lake. This area includes much State owned land not previously part of Voyageurs, and over which national park regulations would not ordinarily apply. Moreover, such an interpretation would logically require a wildlife hunting prohibition in the entire area, a measure which might generate yet another bitter controversy. Therefore the Court rejects such a construction of subpart (ii). Yet, because of the special treatment accorded the thousand acres, the Court views subpart (ii)'s requirement that the Plan complement park purposes to the fullest extent possible as much more rigorous when applied to the thousand acres. 537 2. Congressional History Since the Act is facially unclear, the Court seeks guidance in its legislative history. The Boundary Revision Act (H.R. 846) was introduced in the House by Minnesota Congresspersons Oberstar and Vento. 127 Cong.Rec. H90 (daily ed. Jan. 13, 1981). Minnesota Senators Durenburger and Boschwitz introduced the companion bill (S. 625) into the Senate. 127 Cong.Rec. S1838 (daily ed. March 5, 1981). The nearly identical bills were the result of extensive negotiations between the State, National Park Service, and citizens groups. The bills had broad bi-partisan support from the State, Department of Interior, and the Minnesota congressional delegation. Id.; 128 Cong.Rec. H7874-H7875 (daily ed. Sept. 29, 1982). Senate bill 625 was referred to the Committee on Energy and Natural Resources (hereinafter "Senate Committee") and from there it was referred to the Subcommittee on Public Lands and Reserved Water (hereinafter "Senate Subcommittee"). The House referred H.R. 846 to the House Subcommittee on Public Lands and National Parks of the Committee on Interior and Insular Affairs (hereinafter "House Subcommittee" and "House Committee" respectively). On October 29, 1981, the Senate Subcommittee conducted hearings on S. 625. Boundary Revision of Voyageurs National Park: Hearing Before the Subcomm. on Public Lands and Reserved Water of the Comm. on Energy and Natural Resources, United States Senate, 97th Cong., 1st Sess. (1981) [hereinafter cited as "Senate Hearings"]. On May 25, 1982, the Senate Committee submitted a report recommending passage of S. 625 with amendments. S.Rep. No. 97-423, 97th Cong., 2nd Sess. (1982) [hereinafter cited as "Senate Report"]. On June 10, 1982, the Senate considered and passed S. 625. 128 Cong. Rec. S6656 (daily ed. June 10, 1982). The House Subcommittee then held hearings on H.R. 846 and S. 625 in July and August, 1982. Public Land Management Policy: Hearings Before the Subcom. on Public Lands and National Parks of the Comm. on Interior and Insular Affairs, House of Representatives, 97th Cong., 2nd Sess. (1982) [hereinafter cited as "House Hearings"]. Later in August, the House Subcommittee considered and passed amendments to H.R. 846 in a mark-up hearing. H.R. 846, Voyageurs National Park, House of Representatives Subcomm. on Public Lands and National Parks, Comm. on Interior and Insular Affairs (Aug. 19, 1982) [hereinafter cited as "Subcommittee Mark-Up"]. Another mark-up hearing was held before the full House Committee on September 15, 1982. H.R. 846, To Revise the Boundary of Voyageurs National Park, House of Representatives, Comm. on Interior and Insular Affairs (September 15, 1982) [hereinafter cited as "Committee Mark-up"]. Finally, on September 29, 1982, the House passed H.R. 846. 128 Cong.Rec. H7874 (daily ed. Sept. 29, 1982). Congress later made additional amendments not relevant to this action. See, e.g., 128 Cong.Rec. S13237 (daily ed. Oct. 1, 1982); id. at H9784 (daily ed. Dec. 14, 1982); id. at S15308 (daily ed. Dec. 16, 1982). Committee reports are considered the most persuasive indicia of congressional intent. Housing Authority of City of Omaha, Nebraska v. United States Housing Authority, 468 F.2d 1, 7 n. 7 (8th Cir.1972). The Senate Report on S. 625 is not without reference to wildlife. The Report includes the following statement from the Acting Secretary of the Interior: S. 625 would also authorize the deletion of approximately 1,000 acres of land at Black Bay within the present boundary of Voyageurs National Park on condition that the State of Minnesota designate, and subsequently administer, the deleted portion as a State wildlife management area. This provision of S. 625 would resolve a controversy over duck hunting in this area which has existed since shortly after the Park's authorization. The Black Bay area was hunted by as few as 20-25 hunters a year prior to the Park's creation, but the issue 538 has taken on an emotional aspect harmful to the local and State cooperation needed for the effective administration of the Park. It is understood that while waterfowling within the management area would be permitted in season, the taking of wildlife would be controlled by the State of Minnesota. Senate Report at 7. (emphasis added) The House Report also contains the language emphasized above. House Report at 8-9. These references to the wildlife management area clearly indicate that duck hunting will be permitted within season. The same sentences also indicate that the State will impose substantial controls on the taking of other wildlife. To understand the type of control Congress intended, the Court must look to the remaining legislative history. Throughout the entire legislative history, one theme is pervasive the one thousand acres of Black Bay were ceded to the State to resolve a controversy over duck hunting. Inumerable indications of congressional intent to permit duck hunting in the Gold Portage Area appear in the record. During the Senate Subcommittee hearings, Senator Durenberger testified that the transfer of the thousand acres was "contingent upon DNR designation of the portion ... as a wildlife management area, permitting the hunting of ducks...." Senate Hearings at 3. Similarly, in a prepared statement Russell Dickenson, the Director of the National Park Service, indicated that "the State of Minnesota would agree to designate and administer the area as a state wildlife management area, where waterfowling would be permitted in season." Id. at 25. The record also indicates that only waterfowl hunting would be allowed within the Gold Portage Area. Senator Boschwitz testified that, "[t]he State of Minnesota has agreed to then designate the Black Bay area as a wildlife management area, permitting duck hunting but protecting other wildlife." Senate Hearings at 37; see also House Hearings at 151. Similarly, Congressman Oberstar said in his prepared statement before the Senate Subcommittee that, "[t]he State of Minnesota would manage the lands and water of Black Bay as a wildlife management area, in which only waterfowl hunting would be permitted." Id. at 42 (emphasis supplied). This latter testimony evidences a congressional intent to prohibit all wildlife taking except waterfowl hunting within the thousand acres designated as a "wildlife management area."[3] In interpreting the statute, these statements of the legislation's sponsors should be given substantial weight. Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976). Further evidence of congressional intent to prohibit all taking of non-waterfowl appears in the mark-up sessions. Before recommending H.R. 846 to the full committee, the House Subcommittee held a mark-up session to consider an amendment to the bill. The amendment would have changed section 160a-1(b)(2)(B)(ii) to read: (ii) the State has prepared a plan acceptable to the Secretary to manage all the waters of and State lands riparian to Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve the natural resources of the area so as to complement to the fullest extent possible the purposes for which the park was established, to prevent degradation in air and water quality, to protect fish and wildlife, including the spawning concentrations of fish in Black Bay, Rat Root River, and Rat Root Lake, to protect the stands of vegetation around the margin of Black Bay, to prohibit the construction of permanent duck 539 blinds, to prohibit the hunting of species other than waterfowl, and to preserve the scenery geologic conditions, and waterway systems of the park. Amendment in the Nature of Substitute of H.R. 846 (emphasis supplied). In commenting on the bill as enacted, in light of this potential substitute, Congressman Seiberling stated, "[b]ut as the bill is written, it only permits wildfowl hunting, not other types." Subcommittee Mark-up at 9. Congressman Vento replied, "[t]hat is correct." Id. Later, when the full House Committee considered the substitute, Congressman Vento offered an amendment to it. His amendment proposed subpart (ii) as it was later enacted by Congress. In submitting his amendment Congressman Vento commented: While the State is willing to accept the first part of the amendment [referring to the amendment quoted above] as the members read it in the bill, they are concerned about the specificity and the loss of flexibility that they have with the latter parts. One would prohibit hunting on state land other than waterfowl. At least that is the interpretation they have rendered to this amendment. That certainly wasn't out intent. What this does is simplifies the requirement. The Secretary would still have to approve that plan. I would remind members this would be on land that is State land, but this is part of the agreement. Committee Mark-up at 8. Congressman Seiberling then said to Vento: I certainly have no objection to the amendment [referring to Vento's amendment which was subsequently enacted], and I think the language in the amendment is sound, because while we are ceding a portion of the Black Bay that was thought to be in the park and is considered in the park, we are ceding it back to the States. It is adjacent to the park, itself, and it is important that the entire Black Bay area be managed in some compatible manner. That is what this provides. It is still my understanding that it is not the intent of this amendment [again referring to Vento's amendment] to change the intent of this bill which is that the hunting on Black Bay, itself, will be limited to waterfowl. Id. at 8-9 (emphasis supplied). Congressman Vento then replied, "[t]hat is correct. The hunting in Black Bay would only be limited to waterfowl and, of course there would have to be a plan submitted in terms of that." Id. at 9.[4] Defendants argue that in rejecting the state opposed amendment explicitly prohibiting hunting of non-waterfowl on the State-owned land and waters of Rainy Lake, Congress abandoned its intent to prohibit hunting within the Black Bay area ceded to the State. The discussions in the mark-up hearings clearly contradict this interpretation. Congressman Vento, who sponsored the subpart (ii) amendment, twice assured the committees that his amendment would not change the limitation on hunting in Black Bay itself. Defendant relies on the testimony of Joseph Alexander, the Commissioner of the Minnesota Department of Natural Resources (hereinafter "the DNR") to argue that Congress intended to permit trapping within the Gold Portage region. When testifying before the House Subcommittee, Commissioner Alexander indicated that some wildlife management areas (hereinafter "WMA's") were managed partly as refuges. House Hearings at 21. Commissioner Alexander also stated that WMA's were managed: 540 for the production and propagation of game, wild rice, and in some cases minor fisheries or minnow activities but primarily for waterfowl and for some species of upland game pheasants, sharktail, grouse, and in some cases, marginally, for rough grouse. But primarily for waterfowl and pheasants. Id. at 22 (emphasis supplied). These comments do not indicate that beaver, otter, muskrat, or other animals would be subject to trapping. Instead they lead one to believe that WMA's are managed primarily to permit waterfowl hunting and limited hunting of some other birds. In his testimony before the Senate Subcommittee, Commissioner Alexander stated that, "S. 625 would delete [the Gold Portage] area from the park. This would permit hunting within the area." Senate Hearings at 49. Commissioner Alexander's reference to hunting was so vague that Senator Wallop later sent a letter to Alexander inquiring whether hunting other than duck hunting, or trapping would be permitted in the WMA. See id. at 79-82. Commissioner Alexander replied, "[y]es, unless I close the area to certain kinds of hunting or trapping by order." Id. at 81. He also answered that he would "consider taking such actions if necessary ... to cooperate with park management." Id. Commissioner Alexander's response shows his willingness to be flexible in his management of the WMA. Nothing here indicates that Congress intended the Gold Portage WMA plan to be identical to any other State WMA's.[5] Moreover, Commissioner Alexander was not a member of Congress, and his intentions for Black Bay were not necessarily those of Congress. In fact, as discussed earlier, his view that nonwaterfowl hunting would be permitted was expressly contradicted by several Congresspersons.[6] Finally, the court relies upon the representations made to the House before it approved H.R. 846. First, Congressman Vento remarked: The main thrust of this legislation and perhaps the park's most pressing problem is the controversy that has been generated through the inclusion of a portion of the Black Bay area within the park..... To settle this matter, yet still provide for the utmost protection of the resources in the area, this legislation spells out procedures for turning over the 1,000 acres at Black Bay ... to the State of Minnesota for protection as a wildlife management area. To insure the continued proper utilization of the Black Bay area, the Interior Committee was careful to insert a number of specific provisions, including the use of a reverter clause. 128 Cong.Rec. H7875 (daily ed. Sept. 29, 1984) (emphasis supplied). Later, Congressman Oberstar stated: The return of Black Bay to the State removes a nearly two-decades-old understanding about the boundaries of Voyageurs National Park and how this particular area should be managed. It will return to the people of Minnesota in this small area the opportunity for recreational uses not permitted within a national *541 park, and will resolve a longstanding controversy over duck hunting in Black Bay. Id. at H7877 (emphasis supplied). The Court concludes that Congress intended to resolve a long standing boundary dispute and duck hunting controversy in the Gold Portage area. To fulfill its concern that the wildlife there be protected, Congress provided that the State must establish a Gold Portage wildlife management area for the Secretary's approval. Congress intended that the wildlife management area covering the thousand acres preclude all taking of wildlife except waterfowl. By approving a provision for trapping within the Gold Portage region, the Secretary of Interior violated the Boundary Revision Act.[7] ORDER Since this opinion disposes of plaintiffs' claims, the Court will enter judgment as follows: IT IS ORDERED that plaintiff's motion for summary judgment on Count I of the Complaint is granted as to the one thousand acre tract ceded to the State. IT IS FURTHER ORDERED that the defendants' motions for summary judgment are denied. IT IS DECLARED that the Secretary of Interior violated the Boundary Revision Act by approving a wildlife management plan which permitted trapping within the one thousand acres ceded to the State of Minnesota. LET JUDGMENT BE ENTERED ACCORDINGLY. NOTES [1] The State first submitted a draft management plan to the Superintendent of Voyageurs (hereinafter "the Superintendent") for comments. Letter to Russell W. Berry from Joseph N. Alexander (April 29, 1983). This plan permitted waterfowl hunting, game hunting, and trapping. The Superintendent objected to the provisions for game hunting and trapping as contrary to congressional intent. Memorandum to Regional Director, Midwest Region from Superintendent, Voyageurs National Park (May 31, 1983). The Department of Interior's Acting Regional Director for the Midwest Region concurred in the Superintendent's objections. Memorandum to Superintendent, Voyageurs from Acting Regional Director, Midwest Region (June 8, 1983). In response, the State deleted the provision for game hunting but refused to eliminate the trapping section. Letter to Russell W. Berry from Joseph N. Alexander (July 20, 1983). Contrary to the recommendation of the Park Superintendent, the Acting Regional Director approved the management plan with the trapping provision, and the land was conveyed by quit claim deed on September 27, 1983. See Memorandum to Regional Director, Midwest Region from Superintendent, Voyageurs National Park (September 12, 1983); Agreement Between the United States of America and the State of Minnesota Regarding the Management of Certain Waters of and Adjacent to Black Bay of Rainy Lake (September 13, 1983). [2] Count Two (II) of plaintiffs' complaint contains allegations that the Secretary violated the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (West 1974 & Supp.1975-1983), by failing to consult with the Fish and Wildlife Service on the effects of trapping on the endangered grey wolf and bald eagle species. See id. § 1536. On May 18, 1984, the Secretary consulted with the Fish and Wildlife Service pursuant to 16 U.S.C. § 1536. Consequently, this issue is moot. Plaintiffs may, however, still challenge the Fish and Wildlife Service's finding of "no jeopardy" as arbitrary and capricious. [3] Here, and elsewhere throughout the record, members of Congress used the term "Black Bay" to refer to the one thousand acre tract ceded to the State. This is particularly apparent in the above-quoted comments of Congressman Oberstar and Senator Boschwitz, which refer to Black Bay as the wildlife management area. The Act, however, designated only the thousand acres as a wildlife management area. Black Bay is actually many times the size of the tract transferred to Minnesota. [4] Here Congressman Vento and Seiberling refer to "Black Bay" when describing the thousand acres ceded to the State. Congressman Seiberling comments on "the entire Black Bay area" and on "Black Bay itself." The Court believes the remarks make sense if construed to refer to Black Bay in the first instance and the Gold Portage area in the latter. Thus, according to Congressman Seiberling, the Act required that the entire Black Bay area be managed to complement the park, while the Gold Portage area ("Black Bay, itself") would be managed as a WMA where only waterfowling was permitted. See also supra note 3. [5] Commissioner Alexander also submitted the regulations governing State WMA's to both the House and Senate Subcommittees. These regulations included provisions permitting nonwaterfowl hunting and trapping. Yet, his testimony was clear that WMA's are managed differently depending on the circumstances. Therefore, the Court cannot conclude that these regulations were considered as governing the Gold Portage WMA, especially when members of Congress believed no nonwaterfowl hunting would be allowed there. [6] Defendants contend that the record evidences no intent to prohibit trapping because nearly all references are to hunting. The legislative history suggests that Congress transferred the Gold Portage region to the State to permit duck hunting, and that it viewed duck hunting as a narrow exception to the broad proscription against hunting and trapping within the national parks. When the Act was passed, the Park Service regulations used the term "hunting" to include trapping. See 36 C.F.R. § 2.32 (1982) (entitled "Wildlife; Hunting"). Consequently, the word "hunting" encompassed trapping. The Court finds that Congress intended to prevent the hunting of nonwaterfowl regardless of the form of taking. See supra page 538. [7] After the House Subcommittee discovered that the Secretary had approved a management plan permitting trapping, it held an oversight hearing. See Oversight Hearing on Fiscal 1985 Budget Request and the Land and Water Conservation Fund Before the House Subcomm. on Public Lands and National Parks, 98th Cong., 2nd Sess. 34-42 (1984). During the hearing, Congressman Vento scolded Secretary of Interior Ray Arnett for approving a plan which permitted trapping, and he expressed his opinion that the Secretary had violated Congress' intent in providing for trapping in the area. Id. at 35. Although subsequent history is not entitled to great weight, it is still entitled to consideration, Montana Wilderness Ass'n v. United States Forest Service, 655 F.2d 951, 957 (9th Cir.1981). Cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and here it substantiates the Court's conclusion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1001215/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-6064 RESTONEY ROBINSON, Plaintiff - Appellant, versus W. DOUGLAS ALBRIGHT, SR., Resident Judge; CARRIE A. MOCK; PRISONER LEGAL SERVICE, Defendants - Appellees. Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CA-99-271-1) Submitted: March 23, 2000 Decided: March 30, 2000 Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Restoney Robinson, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Restoney Robinson filed an action alleging denial of access to courts and challenging his conviction. We affirm, on the reasoning of the district court, the district court’s order adopting the magistrate judge’s recommendation and dismissing the denial of access to courts claim. See Robinson v. Albright, No. CA-99-271-1 (M.D.N.C. Nov. 15, 1999). To the extent that Robinson challenges his conviction, the district court was without jurisdiction to consider the claim because Robinson failed to obtain authorization from this court under 28 U.S.C.A. § 2244 (West Supp. 1999). Therefore, we affirm the denial of relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1886543/	221 B.R. 956 (1998) In re Donald Edgar RICHARDSON, Don Richards, Debtor. Donald RICHARDSON, Defendant-Appellant, v. HIDY HONDA, INC., Plaintiff-Appellee. Bankruptcy No. 95-10255, No. 97-CV-71-J. United States District Court, D. Wyoming. June 26, 1998. 957 Stephen R. Winship, Winship & Associates, Casper, WY, for Donald Edgar Richardson. Bruce N. Willoughby, Keith Aurzada, Brown, Drew, Massey & Sullivan, Casper, WY, David W. Cox, Xenia, OH, for Hidy Honda, Inc. ORDER AFFIRMING APPEAL FROM BANKRUPTCY COURT ALAN B. JOHNSON, Chief Judge. I. Introduction This case is before the court on the debtor's appeal of the bankruptcy court's determination that his debt to Hidy Honda, Inc. was nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(4) as a debt for embezzlement. Debtor/appellant Donald Richardson admits that the original debt was obtained through his wrongdoing, but contends that the bankruptcy court erred on procedural and substantive matters and therefore the current debt is dischargeable in bankruptcy. The court has considered the entire file and is fully advised. II. Factual and Procedural Background Debtor admits that his original debt to Hidy Honda arose from his wrongful taking of money entrusted to him. He filed the following affidavit in the adversary proceeding, setting forth sufficient background for the purposes of this appeal. 2. That in 1989, I was an independent automobile broker living and working in Scottsdale, Arizona. 3. That in that year, I had contracted with Buckeye Acura to purchase several automobiles, which Buckeye Acura would transport and resell in Ohio. 4. That there was no written contract between Buckeye and myself. The terms were arranged over the telephone whereby upon receipt of Buckeye's check of $200,000.00, I would make the automobile purchase. 5. Because of other urgent financial needs, I did not use the funds from Buckeye to purchase the vehicles. 6. In early 1990, I was arrested because of the above situation. 7. As shown by Exhibit "A," I pleaded guilty in United States District Court for the District of Arizona on September 17, 1990 to a violation of 18 U.S.C. § 2314. 8. During my probation, I made the required restitution payments through the probation office. 9. That at the completion of my probation, I was directed by the U.S. Attorney's Office (Exhibit "B"), to execute the Promissory Note attached hereto as Exhibit "C." Record 74-75. Debtor pleaded guilty to one count of Interstate Transportation of Stolen Monies in violation of Title 18. He was placed on five years' probation and ordered to pay $300 a month restitution through the U.S. Department of Justice. Pursuant to this obligation he executed a promissory note in the amount of $195,587.50 in favor of the Financial Litigation unit of the U.S. Attorney's office. The last payment on this first note was to be paid on September 5, 1995. On October 10, 1995, debtor was notified he was to make the restitution payments directly to his victim, Hidy Honda. Pursuant to this obligation, he executed a second promissory note on September 5, 1995, the same day his probation ended. The second note is in the amount of $194,687.50 and it provides: For value received and pursuant to the restitution provisions previously ordered 958 by the United States District Judge in its judgment and commitment order in United States v. Donald Edgar Richardson, CR 90-00016-PHX-RGS, I promise to pay Make Traen/Buckeye Acura at c/o Hindy [sic] Honda, 1031 Cincinnati Avenue, Xenia, OH, 45385, the sum of $194,687.50, payable in monthly installments of $300.00 by the 10th day of each month, commencing 10/95. * * * * * * This note shall be governed by and construed in accordance with the laws of the State of Arizona. . . . Record at 79 (underlining in original). The note has a default acceleration clause and an attorney's fee provision. Id. On November 13, 1995, two months after signing the second note, debtor filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On January 24, 1996, Hidy Honda filed a complaint to determine the dischargeability of its debt. On February 27, 1996, the last day to file complaints to determine the dischargeability of debts, Hidy Honda filed its Amended Complaint. At that time Hidy Honda was represented by out-of-state attorneys. On February 27, 1996, the Clerk of the Bankruptcy Court issued a summons to accompany service of the complaint. Service was made by placing the summons and complaint in the mail on March 7, 1996.[1] It was postmarked on March 13, 1996. The debtor says he received it on March 20, 1996. On March 22, 1996, debtor filed a Motion to Dismiss the adversary proceeding alleging that Hidy Honda had not retained local counsel as required by Local Bankruptcy Rule (L.B.R.) 910(a) and (b). On March 28, 1996, the bankruptcy court ordered compliance with those rules. Rec. at 122. Hidy Honda timely complied. Its out-of-state attorney was admitted to practice in this district pro hac vice on April 11, 1996. Its local counsel entered his appearance on April 9, 1996. The bankruptcy court then denied debtor's Motion to Dismiss as moot. On August 8, 1996, the debtor filed a Motion for Summary Judgment on the basis that service of process was not made with a valid summons pursuant to Fed.R.Bank.P. 7004(b)(9) and (f) and L.B.R. 910. On October 11, 1996, the bankruptcy court denied the motion. He found that the summons was stale and therefore the service was ineffective. However, pursuant to Fed.R.Civ.P. 4(j), as made applicable to adversary proceedings pursuant to Fed.R.Bank.P. 7004, the bankruptcy court also found good cause to permit Hidy Honda to re-serve the summons and complaint. Hidy Honda did reserve the summons and complaint. Debtor and Hidy Honda filed cross-motions for summary judgment seeking a determination of whether the debt was nondischargeable under 11 U.S.C. § 523(a)(4). The parties submitted the case on their cross-motions for summary judgment and stipulated facts. Rec. at 44. The bankruptcy court found that although the Arizona statute of limitations for filing a civil action on a claim for embezzlement had expired, the debt arose from Richardson's embezzlement and therefore was non-dischargeable. The bankruptcy court further found that Hidy Honda was the successor-in-interest to Buckeye Acura Inc., of Xenia, Ohio. As assignee of the note, it therefore had standing to pursue claims, including a claim for non-dischargeability, based upon the note. Debtor timely appealed. III. Issues on Appeal The debtor contends that the bankruptcy court erred because the dischargeability complaint was not filed timely. He contends that the bankruptcy court abused its discretion in finding that there was good cause to extend the time for service. He also contends that the complaint was not timely filed because it was signed by counsel, who at the time of the signature was an out-of-state attorney. The debtor contends that the debt was unenforceable under state law because the statute of limitations for bringing a civil action on the basis of embezzlement under Arizona state law had expired. He contends that a subsequent promissory note memorializing a nondischargeable debt supersedes and extinguishes the nondischargeable nature of that debt. He also appeals the bankruptcy 959 court's decisions to consider an affidavit of David Hidy and its resulting finding that Hidy Honda was the proper party in interest. Hidy Honda contends that the bankruptcy court's decision is supported by the record and the law. IV. Jurisdiction and Standard of Review This court has jurisdiction pursuant to 28 U.S.C. § 158(c)(1)(B). This court reviews the bankruptcy court's legal conclusions de novo. Gillickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir.1997). However, we review the bankruptcy court's findings which underpin its conclusions under the more deferential clearly erroneous standard. In re Wes Dor, Inc., 996 F.2d 237, 241 (10th Cir.1993). We review de novo mixed questions consisting primarily of legal conclusions drawn from the facts. Id. Finally, we are cognizant in our review of the requirement that the Bankruptcy Code must be construed liberally in favor of the debtor and strictly against the creditor. In re Adlman, 541 F.2d 999, 1003 (2d Cir.1976). Gillickson, 108 F.3d at 1292. This court reviews a bankruptcy court's decision to extend the time for service of process for "good cause" under Fed.R.Civ.P. 4(j) to determine whether it abused its discretion. Hendry v. Schneider, 116 F.3d 446, 449 (10th Cir.1997). "It is, of course, well-established that `good cause' determinations entail discretionary conclusions by the [trial] court and will not be disturbed absent an abuse of discretion." Floyd v. United States, 900 F.2d 1045, 1046 (7th Cir.1990). The trial court abuses its discretion in determining whether there is "good cause" if its decision is arbitrary, capricious, or whimsical. Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir.1991). Hendry, 116 F.3d at 449 (affirming trial court's finding of good cause to extend time for service under Fed.R.Civ.P. 4(m)). V. A. Complaint Timely Filed The debtor contends that the bankruptcy court erred in finding that there was good cause to allow service of the later summons and complaint. He contends that Rule 4(j) rather than the newer and more liberal Rule 4(m) should apply to this case. Bankruptcy Rule 7004 provides for service in an adversary proceeding. Subsection (f) of this rule provides in part: If service is made by any authorized form of mail, the summons and complaint shall be deposited in the mail within 10 days following issuance of the summons. If the summons is not timely delivered or mailed, another summons shall be issued and served. Rule 7004 incorporates the major portion of Fed.R.Civ.P. 4. As a preliminary matter, it appears that the debtor is correct that former subsection (j) rather than current subsection (m) of Fed.R.Civ.P. 4 is applicable to the issue before this court. In 1993, Fed. R.Civ.P. 4 was amended and subsections redesignated. Among other changes, former subsection (j) was replaced with current subsection (m). However, it was not until the 1996 amendments to the Federal Rules of Bankruptcy Procedure, effective December 1, 1996, that this change was made applicable to adversary proceedings by Fed.R.Bank.P. 7004. See Broitman v. Kirkland (In re Kirkland), 181 B.R. 563, 566 (D.Utah 1995) (collecting cases) and Barr v. Barr (In re Barr), 217 B.R. 626, (Bankr.W.D.Wash.1998) (noting that Rule 4(m) was later incorporated into Rule 9004 effective December 1, 1996). All of the events at issue regarding service in this case occurred prior to December 1, 1996. Therefore, former Rule 4(j) is applicable. It provides: If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service is required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the 960 court's own initiative with notice to such party or upon motion. Former Fed.R.Civ.P. 4(j). The debtor did receive a copy of the summons and complaint well within the 120 days provided by law. He received them less than 30 days after the filing of the Amended Complaint. As noted by the bankruptcy court, the debtor then participated in the adversary proceeding as if effective service had been made. The rule relating to "stale" summonses requires merely that the summons be reissued and re-served. Fed.R.Bank.P. 7004(f); See Barr, 217 B.R. at 631 (plaintiff's "failure to comply with the ten day time limit was not fatal to her case"). Under the facts of the case as determined by the bankruptcy court, the court finds no abuse of discretion in the bankruptcy court's finding of good cause to extend the time for service. The debtor also contends that the adversary proceeding was not timely filed because the complaint was not signed by a resident attorney. The court finds no error or abuse of discretion in the bankruptcy court's determination that this issue was moot when counsel was admitted pro hac vice and obtained local counsel. Therefore, the complaint was timely filed. B. Embezzlement Section 523(a)(4) of the Bankruptcy Code excepts from discharge in bankruptcy "any debt . . . for embezzlement." 11 U.S.C. § 523(a)(4). The United States Supreme Court has recently examined dischargeability of a debt under a related subsection of § 523 in the case Cohen v. de la Cruz, ___ U.S. ___, 118 S. Ct. 1212, 140 L. Ed. 2d 341 (1998). Cohen involved a complaint to determine the dischargeability of a debt for treble damages for "fraud" under 11 U.S.C. § 523(a)(2)(A). The Supreme Court's discussion of several matters is applicable to this case: The Bankruptcy Code has long prohibited debtors from discharging liabilities incurred on account of their fraud, embodying a basic policy animating the Code of affording relief only to an "honest but unfortunate debtor." Grogan v. Garner, 111 S.Ct. at 659-660. . . . A "debt" is defined in the Code as "liability on a claim," § 101(12), a "claim" is defined in turn as a "right to payment," § 101(5)(A), and a "right to payment," "we have said is nothing more nor less than an enforceable obligation." Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 559, 110 S. Ct. 2126, 109 L. Ed. 2d 588 (1990). Those definitions "reflec[t] Congress' broad . . . view of the class of obligations that qualify as a `claim' giving rise to a `debt,'" id., 495 U.S. at 558. * * * * * * Petitioner's reading of "debt for" in § 523(a)(2)(A), however, is at odds with the meaning of the same phrase in parallel provisions. Section 523(a) defines several categories of liabilities that are excepted from discharge, and the words "debt for" introduce many of them, viz., "debt . . . for a tax or a customs duty . . . with respect to which a return . . . was not filed," § 523(a)(1)(B)(i), "debt .. for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny," § 523(a)(4), "debt . . . for willful and malicious injury by the debtor to another entity," § 523(a)(6), and "debt . . . for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated," § 523(a)(9). None of these use "debt for" in the restitutionary sense of "liability on a claim to obtain"; it makes little sense to speak of "liability on a claim to obtain willful and malicious injury" or "liability on a claim to obtain fraud or defalcation." Instead, "debt for" is used throughout to mean "debt as a result of," "debt with respect to," "debt by reason of," and the like, see American Heritage Dictionary 709 (3d ed.1992); Black's Law Dictionary 644 (6th ed.1990), connoting broadly any liability arising from the specified object, see Davenport, supra, at 563, 110 S. Ct. 2126, (characterizing § 523(a)(7), which excepts from discharge certain debts "for a fine, penalty, or forfeiture" as encompassing "debts arising from a `fine, penalty, or forfeiture'"). * * * * * * 961 The various exceptions to discharge in § 523(a) reflect a conclusion on the part of Congress "that the creditors' interest in recovering full payment of debts in these categories outweigh[s] the debtors' interest in a complete fresh start." Grogan, 498 U.S. at 287. Cohen, 118 S.Ct. at 1216-17 and 1218. Debtor contends that because the time period under state law for bringing a civil action based upon an allegation of embezzlement has expired, Hidy Honda is now barred from determining that the debt evidenced by the promissory note was the result of, or by reason of, embezzlement. In support of this position, debtor relies upon a line of cases represented by In re Pascucci, 90 B.R. 438 (Bankr.C.D.Cal.1988).[2] Arizona law provides a two-year statue of limitations for a cause of action for embezzlement. Ariz.Rev.Stat. § 12-542(5); Estate of Kirschenbaum v. Kirschenbaum, 164 Ariz. 435, 793 P.2d 1102, 1104 (App.Div. 2 1989). Debtor contends that because this action was not brought within the two-year period the debt for embezzlement is "extinguished." This is not correct. The debt owned by debtor to Hidy Honda was memorialized under two successive promissory notes. Under any statute of limitations analysis, the debt remains fully enforceable, unless it is dischargeable in bankruptcy. The court agrees with the bankruptcy court's analysis of the issue of the state law statute of limitations and with its interpretation of the Tenth Circuit's decision in In re McKendry, 40 F.3d 331, 337 (10th Cir.1994); reh'g denied (1994). The question in McKendry was "where a debt has been reduced to judgment in state court, can the bankruptcy court be barred by a state statute of limitations from considering the underlying nature of the debt in determining whether that debt is dischargeable." Id. at 336. This same issue is presented in this case, with the unimportant difference that the debt was reduced to judgment in federal court pursuant to a criminal restitution order. As noted by the court in McKendry: In bankruptcy court there are two separate and distinct causes of action: One cause of action is on the debt and the other cause of action is on the dischargeability of that debt, a cause of action that arises solely by virtue of the Bankruptcy Code and its discharge provisions. . . . * * * * * Until the debtor filed his petition for relief under the Bankruptcy Code, the plaintiffs obviously had no cause of action under § 523(a)(4) . . . The only relevant question with respect to Ohio's statute of limitation is whether the plaintiffs sought to enforce their "debt" against the debtor within the period prescribed by the statute of limitations. The debtor does not dispute that the plaintiffs did so. In the instant adversary proceeding, the nature of the alleged debt, i.e., whether the debt is of a type determined by Congress to be nondischargeable, is to be decided by the this court. * * * * * * We likewise find two distinct issues in a nondischargeability proceeding. The first, the establishment of the debt itself, is governed by the state statute of limitationsif suit is not brought within the time period allotted under state law, the debt cannot be established. However, the question of the dischargeability of the debt under the Bankruptcy Code is a distinct issue governed solely by the limitations period established by bankruptcy law. In this case, the debt has already been established so the state limitations period is immaterial. The only applicable limitations period is the sixty day period provided by § 523(c). Because the [creditor] filed its complaint for a determination of dischargeability within the sixty day period provided in § 523(c), the district court erred in holding that the [creditor] was barred by the state 962 statute of limitations from proving the underlying nature of the debt. 40 F.3d at 336-37 (quoting In re Moran, 152 B.R. 493, 495 (Bankr.S.D.Ohio 1993)). In this case, as in McKendry, the debt has already been established so the state limitations period is immaterial. As discussed above, the complaint was timely filed within the period provided in § 523(c). Therefore the bankruptcy court correctly proceeded to determine the underlying nature of the debt. The debtor also contends that any claim Hidy Honda had against the debtor was satisfied and superseded by the second promissory note. In support of this position he cites Matter of West, 22 F.3d 775, 777 (7th Cir.1994). This case is distinguishable from West because in this case there was no settlement and express release between Hidy Honda and the debtor. Instead, the promissory notes were imposed upon the debtor as part of the court-ordered criminal restitution obligation. See United States v. Walters, 176 B.R. 835, 880 (distinguishing West) and Roy v. United States (In re Roy), 189 B.R. 245, 247 (Bankr.D.N.H.1995) (West inapplicable where facts show no express release, "much less any facts which convince the Court that the parties intended to substitute the new obligation for the old"). Further, this court finds persuasive and will follow the opinion of the Court of Appeals for the District of Columbia, which rejected the rationale of West in United States v. Spicer, 57 F.3d 1152 (D.C.Cir.1995) cert. denied, 516 U.S. 1043, 116 S. Ct. 701, 133 L. Ed. 2d 658 (1996). In Spicer, the court held that a debtor may not alter the nondischargeable form of his or her debt "through the alchemy of a settlement agreement." This court believes that to follow West would be contrary to the public policy embodied in § 523's exceptions to discharge. In rejecting West, the court in Spicer followed the case Greenberg v. Schools, 711 F.2d 152 (11th Cir.1983). Thus, the Spicer court held that "[r]ather than looking to the current legal form of the debt, the court should inquire into the factual circumstances behind the settlement agreement to ascertain whether . . . the debt . . . was derived from the alleged fraudulent conduct.'" 57 F.3d at 1155 (quoting Greenberg, 711 F.2d at 156). The debtor's guilty plea to the charge of the crime of transportation of stolen moneys establishes the elements of embezzlement and he is collaterally estopped from re-litigating those matters established by his guilty plea. In fact, he did not seek to do so in the bankruptcy proceeding, instead relying on many of the same arguments he brings on appeal. Thus, the debt evidenced by the second promissory note was undisputedly "as the result of" or "with respect to" embezzlement and therefore was a "debt for" embezzlement within the meaning of § 523(a)(4). See Cohen, supra. The bankruptcy court determined that the debt was nondischargeable pursuant to § 523(a)(4) and this court finds no error in that decision. C. Standing As noted by the bankruptcy court, the debtor does not argue that Hidy Honda's allegation of ownership is untrue or disputed. Instead he merely contends that the affidavit of David Hidy is explaining that Hidy Motors is the successor in interest to Buckeye Acura and that the second promissory note is an asset of Hidy Motors, Inc., is insufficient to establish ownership. This court agrees with, and finds fully supported by the record, the bankruptcy court's finding that debtor did not raise an issue of fact to contest Hidy Honda's right to proceed in actions on the note. The court finds no abuse of discretion in the bankruptcy court's having considering the affidavit. VI. For the foregoing reasons, this court finds the bankruptcy court's findings to be fully supported by the record and finds no error in its conclusions of law. Accordingly, it is therefore ORDERED that the bankruptcy court's February 3, 1997, Order on Cross-Motions for Summary Judgment determining that the debt of debtor/appellant to Hidy Motors is 963 non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(4) is AFFIRMED. NOTES [1] Fed.R.Bank.P. 7004(b) allows service by first class mail. [2] The court finds reliance on these cases in the debtor's brief to be unsupportable when the Tenth Circuit in McKendry, infra expressly rejected as "unpersuasive" Pascucci and the line of cases it represents.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3053886/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALAN MERRIFIELD, an individual;  URBAN WILDLIFE MANAGEMENT INC., a California corporation individually as a successor in interest to Alan Merrifield dba Urban Wildlife Management; CALIFORNIA NUISANCE WILDLIFE CONTROL OPERATORS ASSOCIATION, a California non-profit corporation, Plaintiffs-Appellants, No. 05-16613 v. D.C. No. BILL LOCKYER, Attorney General, CV-04-00498-MMC Defendant, and  ORDER AMENDING KELLI OKUMA, Registrar of the OPINION AND California Structural Pest Control AMENDED Board; GRETCHEN A. BRIGAMAN, OPINION Protest Officer of the California Department of Transportation; JEAN MELTON, Member of the California Structural Pest Control Board; BILL MORRIS, Member of the California Structural Pest Control Board; MICHAEL ROTH, Member of the California Structural Pest Control Board; MUSTAPHA SESAY, Member of the  14673 14674 MERRIFIELD v. LOCKYER California Structural Pest Control  Board; THURMAN, Member of the California Structural Pest Control Board; KENNETH L. TRONGO,  Member of the California Structural Pest Control Board, Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Argued and Submitted August 16, 2007—San Francisco, California Filed September 16, 2008 Amended October 22, 2008 Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges. Opinion by Judge O’Scannlain; Partial Concurrence and Partial Dissent by Judge Hawkins MERRIFIELD v. LOCKYER 14677 COUNSEL Timothy Sandefur, Pacific Legal Foundation, Sacramento, California, argued the cause for the plaintiffs-appellants and filed briefs; Meriem L. Hubbard, Pacific Legal Foundation, Sacramento, California, was on the briefs. 14678 MERRIFIELD v. LOCKYER Diann Sokoloff, Deputy Attorney General, Oakland, Califor- nia, argued the cause for the defendants-appellees and filed a brief; Bill Lockyer, Attorney General for the State of Califor- nia, Alfredo Terrazas, Senior Assistant Attorney General, Wilbert E. Bennett Supervising Deputy Attorney General, Oakland, California, were on the brief. ORDER Appellants’ motion for clarification is GRANTED. The opinion filed in this case on September 16, 2008, slip op. at 12915, is amended as follows: At slip op. at 12942, second to last paragraph, lines 4-5: Delete “and shall enjoin the Board from denying him a Branch II license to engage in his chosen profession”. The petition for rehearing and rehearing en banc remains pending. Subsequent petitions for rehearing will be enter- tained. OPINION O’SCANNLAIN, Circuit Judge: We must decide whether a state regulatory scheme violates the equal protection rights of pest controllers. I A Alan Merrifield appeals from a grant of summary judgment denying his request for a permanent, prospective injunction of MERRIFIELD v. LOCKYER 14679 California’s structural pest control licensing requirements. He engages in “non-pesticide animal damage prevention and bird control” (“ADP & BC”), which includes installing spikes, screens, and other mechanical devices in or on buildings and other structures so as to remove vertebrate pests—e.g., skunks, raccoons, squirrels, rats, pigeons, starlings, bats—or to keep them away from structures. California law requires all persons engaged in structural pest control to obtain licenses, with certain statutory exemptions. Merrifield argues that the applicable licensing requirement is intended for pesticide- based pest control, and that he should be exempt from such requirement because he does not use pesticides.1 Persons who engage in structural pest control without a license in California face misdemeanor convictions punish- able by fines of up to $1,000 and six months imprisonment per violation.2 Cal. Bus. & Prof. Code (“Code”) § 8553. The state Structural Pest Control Board (“Board”) enforces the licensing requirements. The record includes correspondence between Merrifield and Board officials making clear that his bids for a government project to birdproof the Trans Bay Ter- 1 Appellants also include Urban Wildlife Management (“UWM”), a company that Merrifield owns, and the California Nuisance Wildlife Con- trol Operators Association (“CNWCOA”), a trade group of businesses that are “engaged in the nonpesticide removal or exclusion of vertebrate pests.” Merrifield has standing because he cannot engage in his trade unless he first satisfies the current licensing requirement or receives an exemption. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The CNWCOA also has standing because its members suffer the same injuries. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-43 (1977). UWM does not have standing to bring a privileges and immunities claim because it is a corporation. See W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907) (“[A] corporation cannot be deemed a citizen within the meaning of the clause of the Constitution of the United States which protects the privileges and immunities of citizens of the United States . . . .”). For convenience, this opinion refers to the plaintiffs- appellants as “Merrifield.” 2 Submitting a bid to a public agency without a license qualifies as such misdemeanor. Cal. Bus. & Prof. Code § 7028.15(a). 14680 MERRIFIELD v. LOCKYER minal in San Francisco would not be considered unless he had a “Branch II” license. On February 21, 1997, the Board warned Merrifield to comply with the licensing statute. After quoting the text of the licensing requirement, the letter stated: It has come to the Board’s attention that you do not posses [sic] the proper Branch II (General Pest Con- trol) License or Company Registration Certificate issued by the Board. It is also apparent that you are advertising and conducting Rodent Proofing (rats, mice, etc.) activities. If you or your firm is conducting any pest control activity or advertisement which requires a Branch II License or Company Registration Certificate, you are ordered to cease and desist all activity unless properly licensed or are [sic] in compliance with Section 8555(g) Business and Professions Code. This notice will be your only warning that any firm or person which violates the provisions of the Struc- tural Pest Control Act will be investigated and appropriate legal action will be initiated through the District Attorney’s Office. Compliance with these requirements . . . shall be mandatory by March 31, 1997. If you are interested in becoming licensed in Branch II, please contact the Board’s Licensing or Enforce- ment Division . . . . Merrifield has never applied for such a license and claims none is necessary for his business activity. B Since 1941, California has provided that the Board will reg- ulate those engaged in the business of “structural pest con- MERRIFIELD v. LOCKYER 14681 trol.” Cal. Bus. & Prof. Code § 8520. The Board’s “primary mission,” according to Code section 8520, is “consumer pro- tection.” Id. The State forbids “any individual to engage or offer to engage in the business or practice of structural pest control . . . unless he or she is licensed” in conformity with state law and the Board’s requirements. Id. § 8550(a). The applicable statute sets forth a tri-partite licensing scheme: Branch I for fumigation, Branch II for general pest control,3 and Branch III for termite control. Id. § 8560. Under the 1941 Code, both pesticide-based and non- pesticide-based pest control operators were required to obtain a Branch II license because the term “structural pest control” was defined to include: identification of infestations or infections; the mak- ing of an inspection or inspections for the purpose of identifying or attempting to identify infestations or infections of household or other structures by such pests or organisms; the making of inspection reports, recommendations, estimates, and bids, whether oral or written, with respect to such infestations or infec- tions; and the making of contracts, or the submitting of bids for, or the performance of any work includ- ing the making of structural repairs or replacements, or the use of insecticides, pesticides, rodenticides, fumigants, or allied chemicals or substances, or mechanical devices for the purpose of eliminating, exterminating, controlling or preventing infestations or infections of such pests, or organisms. Id. § 8505 (emphasis added).4 3 “General pest” control is defined as “[t]he practice relating to the con- trol of household pests, excluding fumigation with poisonous or lethal gases.” Cal. Bus. & Prof. Code § 8560(a). 4 The Code uses the term “structural pests” to encompass “household pests and wood destroying pests or organisms, or such other pests which may invade households or other structures, including railroad cars, ships, docks, trucks, airplanes, or the contents thereof.” Cal. Bus. & Prof. Code § 8560(a). 14682 MERRIFIELD v. LOCKYER In 1995, the California legislature enacted an express exemption from the Branch II license requirement for “[p]ersons engaged in the live capture and removal or exclu- sion of vertebrate pests, bees, or wasps from a structure with- out the use of pesticides.” Id. § 8555(g). The new provision limited its definition of “vertebrate pests” to ensure that per- sons controlling mice, rats, or pigeons would still need to obtain Branch II licenses: “ ‘Vertebrate pests’ include, but are not limited to, bats, raccoons, skunks, and squirrels, but do not include mice, rats, or pigeons.” Id. (emphasis added). Obtaining a Branch II license requires proof that the appli- cant has had at least two years of “actual experience . . . or the equivalent” working in “the particular branch” for which a license is desired. Id. § 8562(b). Since 1993, each applicant has also been required to provide proof of a year of experi- ence as a licensed Branch II “field representative” or “the equivalent of that training or experience.” Id. § 8562(f). Finally, the applicant must pass the Board-administered Branch II exam with a score of 70 percent or better. Id. § 8560(a), (f). The sample Branch II exam and preparation materials entered in the record reveal that most subject areas “relate to the use and storage of pesticides and/or the identifi- cation and control of invertebrate pests.” Merrifield v. Lock- yer, 388 F. Supp. 2d 1051, 1054 (N.D. Cal. 2005). The district court found that “[o]f the 200 questions on the sample exam supplied, at most 18 questions relate to mice, rats, and/or nonrodenticide-based mouse or rat control,” six questions related to “compliance procedures [that] are possibly applica- ble to all pest-control enterprises,” and “[o]ne question con- cerns bat droppings.” Id. C Faced with the prospect of either punishment if he worked without a license or enduring much expense and effort to obtain the license, Merrifield filed this 42 U.S.C. § 1983 suit MERRIFIELD v. LOCKYER 14683 against the Board and various other officials5 (collectively “the Board”) in the district court on February 6, 2004. The complaint alleged that the Branch II licensing requirement violates the Equal Protection, Due Process, and Privileges or Immunities Clauses of the Fourteenth Amendment, and sought declaratory and injunctive relief. The parties submitted and amended their filings, and conducted extensive civil dis- covery, including pages of interrogatories posed by Merrifield and responses by Board members. Several experts entered depositions and declarations, including those who testified on the effectiveness of non-pesticide pest control and on the potential rationale behind the licensing rules and the 1995 exemption therefrom. The parties then cross-moved for summary judgment on the issue of whether the Branch II licensing requirement in sec- tion 8555(g) was rationally related to a legitimate government purpose. On August 1, 2005, the district court granted sum- mary judgment to the State and denied summary judgment to Merrifield. Merrifield, 388 F. Supp. 2d at 1064-65. Merrifield timely appealed.6 II Merrifield first claims that California’s Branch II pest con- trol licensing requirement violates the Privileges or Immuni- ties Clause of the Fourteenth Amendment because it infringes on his right to practice his chosen profession. The state con- tends that this provision cannot be invoked by citizens against the legislative power of their own states, except with regard to the right to travel. 5 The original complaint named several other state officials, including Arnold Schwarzenegger, Governor of California; Valerie Brown, Califor- nia Assemblywoman; and Bill Lockyer, Attorney General of California, but these defendants were dismissed from the case. 6 We review a district court’s decision on cross-motions for summary judgment de novo. Bader v. N. Lina Layers, Inc., 503 F.3d 813, 816 (9th Cir. 2007). 14684 MERRIFIELD v. LOCKYER [1] The Privileges or Immunities Clause of the Fourteenth Amendment does not expressly contain a home-state restric- tion, for it states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. amend. XIV, § 1, cl. 2. How- ever, the Supreme Court drew tight boundaries around the Privileges or Immunities Clause of the Fourteenth Amend- ment in the Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1872). The Court ruled that the clause only secures those rights which “own their existence to the Federal government, its National character, its Constitution, or its laws.”7 Id. at 79. Some examples of Federal privileges or immunities protected by the Fourteenth Amendment listed by the Supreme Court were the right to petition the Federal government and to “de- mand the care and protection of the Federal government over his life, liberty, and property when on the high seas.” Id. at 79. However, the Court made it very clear that the traditional privileges and immunities of citizenship “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments,” such as the right to engage in one’s profession of choice, see Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823), were not protected by the Privi- leges or Immunities Clause if they were not of a “federal” character. Slaughter-House Cases, 83 U.S. (16 Wall.) at 78- 79. In Saenz v. Roe, 526 U.S. 489 (1999), however, the Court held that “[d]espite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the major- ity and dissenting opinions in the Slaughter-House Cases, it 7 With respect to the Privileges and Immunities Clause of Article IV, the Slaughter-House Court concluded that “[i]ts sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restric- tions on their exercise, the same, neither more nor less, shall be the mea- sure of the rights of citizens of other States within your jurisdiction.” Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1872). MERRIFIELD v. LOCKYER 14685 has always been common ground that this Clause protects the third component of the right to travel.” Id. at 503 (citation omitted). According to the Court, the third component of the constitutional right to travel protects, “for those travelers who elect to become permanent residents [of a State], the right to be treated like other citizens of that State.” Id. at 500. The Court thus reopened a debate that many had considered fore- closed by the Slaughter-House Cases. Merrifield argues that the right to pursue one’s chosen pro- fession now falls within the purview of the clause arguing that the Slaughter-House Court’s holding that the right to earn a living in a common occupation was not among the rights of national citizenship has since been repudiated. It is true that the Court has recognized a federal right to pursue one’s cho- sen profession under substantive due process. Conn v. Gab- bert, 526 U.S. 286, 291-92 (1999); Schware v. Bd. of Bar Exam’rs of N.M., 353 U.S. 232, 238-39 (1957). However, Saenz represents the Court’s only decision qualifying the bar on Privileges or Immunities claims against “the power of the State governments over the rights of [their] own citizens.” Slaughter-House Cases, 83 U.S. (16 Wall.) at 77. That case was limited to the right to travel. The Court has not found other economic rights protected by that clause, although many scholars have argued for overruling the Slaughter-House Cases in toto.8 [2] Given the Slaughter-House Cases limitation on the Privileges or Immunities Clause of the Fourteenth Amend- ment, we cannot grant relief based upon that clause unless the 8 Akhil Reed Amar, Substance and Method in the Year 2000, 28 Pepp. L. Rev. 601, 631 n.178 (2001) (“Virtually no serious modern scholar-left, right, and center-thinks that this [Slaughter-House Cases] is a plausible reading of the [Fourteenth] Amendment.”); Douglas W. Kmiec, “God’s Litigator”, 70 Notre Dame L. Rev. 1247, 1253 n.29 (1995) (reviewing William Bentley Ball, Mere Creatures of the State? Education, Religion, and the Courts: A View From the Courtroom (1994)). 14686 MERRIFIELD v. LOCKYER claim depends on the right to travel. Merrifield’s claim does not invoke that right, and therefore must be denied. III [3] Merrifield next claims that California’s Branch II pest control licensing requirement violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. All parties agree that rational basis review applies.9 A Merrifield relies heavily on two recent cases, which struck down regulatory schemes, to establish both his due process and equal protection claims: Cornwell v. Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999) and Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002). 1 Cornwell involved an “African hair braider” who engaged in “natural hair care” and asserted that she should be permit- ted to braid hair without fulfilling California’s cosmetology licensing requirement. 80 F. Supp. 2d at 1102, 1104-05. The district court agreed, because Cornwell could not “reasonably be classified as a cosmetologist as it is defined and regulated presently,” and “[e]ven if [she] were defined to be a cosmetol- ogist, the licensing regimen would be irrational as applied to her because of her limited range of activities,” which over- lapped only minimally with the types of activities covered in the state’s principal training curriculum and examination. See id. at 1108, 1110, 1115 (finding “well below ten percent” of the curriculum to be relevant to Cornwell’s actual activities and 11 percent of exam questions to be relevant to Cornwell’s 9 Under rational basis review, a statute will pass constitutional muster if it is “rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). MERRIFIELD v. LOCKYER 14687 actual activities). The court viewed this marginal overlap as constitutionally infirm due to overbreadth (by including per- sons to whom the license was not relevant) and underinclu- siveness (by failing to ensure the competency of hair braiders). The court found the only imaginable justification to be economic protectionism of the cosmetology industry, which it deemed illegitimate. Id. at 1117-18 & n.50. Thus, the licensing requirement violated Cornwell’s due process and equal protection rights. In Cornwell, the district court observed that under the Equal Protection Clause “ ‘sometimes the grossest discrimina- tion can lie in treating things that are different as though they were exactly alike.’ ” Id. at 1103 & n.2 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)). In Jenness, however, the Supreme Court used the phrase in response to an argument that a Georgia state election law that treated traditional politi- cal parties differently than newer parties for ballot qualifica- tion violated equal protection. Jenness, 403 U.S. at 441-42. The Court noted that it was rational for Georgia to treat the two types of political organizations differently based on the different challenges that each entity faces and Georgia’s need properly to manage elections. Id. The Court cited Williams v. Rhodes, 393 U.S. 23 (1968), in which it struck down an Ohio ballot access law due to its different treatment of established and new political parties. In other words, in both Jenness and in Williams, the challenged laws imposed different require- ments on two different groups, traditional and new political parties. However, in Cornwell the challenge was by an Afri- can hair stylist who challenged a uniform licensing scheme. While the reasoning of the district court in Cornwell may be consistent with our due process analysis, it cannot survive equal protection analysis. 2 In Craigmiles, the Sixth Circuit affirmed the decision of a district court, following a bench trial, that the inclusion of cas- 14688 MERRIFIELD v. LOCKYER ket merchants within the licensing requirement for funeral directors violated equal protection and due process. 312 F.3d at 222. The court cited the district court’s findings that requir- ing casket sellers to learn the skills of funeral directors did not further health and safety, because casket sellers did not engage in funeral activities, such as cleaning and embalming corpses. The court did discern one possible reason for regulat- ing casket merchants: “The quality of the caskets used poten- tially threatens public health.” Id. at 225 (emphasis omitted). However, the court rejected this rationale for lack of a rela- tionship to the licensing requirement, which ensured that “the only difference between the caskets [sold by licensed and unlicensed persons] is that those sold by licensed funeral directors were systematically more expensive.” Id. at 225-26. The court also rejected the government’s argument that the licensing law helped ensure that persons selling caskets knew how to respond to customers’ grief (such matters were tested on the exam). Id. at 228. Having rejected all possible reasons the government provided or that the court could reasonably conceive, it concluded that the licensing law imposed a bur- den upon casket merchants merely “to prevent economic com- petition” with funeral directors. Id. at 225. As such, the law failed rational basis review. The casket retailers in Craigmiles argued that their business was so different from funeral directors that the government’s interest in public health and safety in regulating funeral direc- tors was not implicated. Id. In other words, although the cas- ket sellers brought claims under both the Due Process and Equal Protection Clauses, and the Sixth Circuit affirmed on both grounds, their argument was not that they were being treated differently in violation of the Equal Protection Clause, but that they were suffering an unconstitutional barrier to practice their profession— a due process claim.10 10 The cases cited by Craigmiles highlight that an equal protection analy- sis was not really applicable. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) struck down a law preventing a group home that serviced the mentally disabled from operating under a zoning law which expressly classified “the feeble-minded” differently from other groups. Craigmiles, 312 F.3d at 227. MERRIFIELD v. LOCKYER 14689 3 The plaintiffs in Cornwell and Craigmiles were treated the same as other groups under the challenged statutory frame- work. Therefore, the equal protection analytical framework requiring a rational connection between a legitimate interest and different classifications was inapplicable to these cases. Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Pro- tection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently per- sons who are in all relevant respects alike.”). Because Craigmiles and Cornwell involved plaintiffs argu- ing that they were different from other groups and should not be treated the same, these cases are not directly applicable to Merrifield’s claim that he is the same as other non-pesticide exterminators and is being treated differently.11 However, the cases are analogous and applicable to Merrifield’s due process claim that he is different from pesticide-using exterminators and should not be treated the same as them, because such treatment is an unconstitutional barrier on his liberty under the Due Process Clause. B 1 [4] Merrifield argues that the licensing requirement for non-pesticide pest controllers bears no relationship to any legitimate interest such as public health, safety, or consumer protection. With respect to Merrifield’s due process claim, the first aspect of the rational basis test is easily satisfied by the 11 Although not directly applicable, Craigmiles does have a helpful dis- cussion regarding how, in either a due process or an equal protection anal- ysis, the history of the legislation in question may affect whether a government’s action may survive rational basis scrutiny. The relevance of this portion of Craigmiles is discussed below in Part III.C. 14690 MERRIFIELD v. LOCKYER government’s interests in public health and safety and con- sumer protection. See Watson v. Maryland, 218 U.S. 173, 177 (1910) (“It is too well settled to require discussion at this day that the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.”); cf. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189-90 (1997) (finding consumer protec- tion to be a legitimate federal governmental interest). How- ever, if the statute is unrelated to these interests, the statute lacks a rational basis. 2 The Branch II licensing statute includes three requirements: 1) at least two years of “actual experience . . . or the equiva- lent” working in “the particular branch” for which a license is desired, Cal. Bus. & Prof. Code § 8562(b); 2) a year of experience as a licensed Branch II “field representative,” id. § 8562(f); and 3) passage of the Board-created Branch II exam with a score of 70 percent or better, id. § 8560(a), (f). Merrifield asserts that these requirements have no legitimate purpose for persons engaged in structural pest control without pesticides, and simply inhibit competition in the marketplace. We now turn to the individual Branch II license requirements in light of Merrifield’s due process challenge. i [5] Merrifield does not offer any significant argument chal- lenging the validity of the training requirements. Nor would that be possible. “A State can require high standards of quali- fication, such as good moral character or proficiency . . . before it admits an applicant . . . , but any qualification must have a rational connection with the applicant’s fitness or capacity to practice [the profession].” Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 239 (1957) (discussing state require- ments to practice law). The training requirement in section 8562(b) ensures that structural pest controllers have perspec- MERRIFIELD v. LOCKYER 14691 tive, judgment, and skills related to their occupation. Although Merrifield asserts that the pesticide license exami- nation and training requirements are almost entirely geared toward establishing an applicant’s expertise with regard to pesticides and invertebrates, the training requirements do not require persons to work with pesticides or invertebrates. Mer- rifield offers no evidence that the state has rejected a person’s training because it involved non-pesticide work.12 The second requirement, section 8562(f), requires a year of work as a Branch II “field representative.” Again, this provision does not specify that the work must be with pesticides. Therefore, the licensing scheme does not inflict the same burden as the scheme in Cornwell, which required a hair braider to engage in business activities that she otherwise would not have engaged in during the course of her business to get the license. Cornwell, 80 F. Supp. 2d at 1108, 1110, 1115. [6] Additionally, unlike the plaintiffs in Cornwell and Craigmiles, Merrifield offers no reason to believe that train- ing would not increase the safety of his profession. As the government points out, the work of non-pesticide pest con- trollers is not without risk of harm. Like other structural pest controllers, Merrifield must climb on people’s roofs to install his pigeon wires and apparatuses; he must enter businesses and homes; he must deal with pests that can spread disease. Proper training and oversight would help him to obtain the requisite skills and competency. Thus, Merrifield’s suggestion that the training requirements serve no purpose must be rejected. ii [7] Merrifield’s challenge to the third requirement, a 70 percent score on the licensing examination, requires careful 12 Merrifield does not aver that all current Branch II licensees work with pesticides, which would leave applicants no option but to work with pesti- cides. 14692 MERRIFIELD v. LOCKYER analysis. Merrifield asserts that the examination requirement exceeds its purpose because the test simply focuses on pesticide-handling. He relies heavily on the rationale of Corn- well, which rested much of its analysis on the lack of relevant hair braiding questions on the cosmetology exam. He cites to the pesticide-centric questions on the licensing examination and objects that the test has no relevance for persons who do not use pesticides. To substantiate this point, Merrifield sub- mits a sample licensing examination, in which he asserts “[o]ne hundred and eighty-four of the 200 questions on the test are entirely irrelevant to what [he] does.” In further sup- port of his claim, he points to the licensing exemption in sec- tion 8555(g), which, he believes, belies the government’s contention that the Branch II requirement is necessary for non-pesticide pest control. Merrifield also contends that the licensing scheme fails to achieve its purpose by being too narrow: “A test that is focused on the use, storage, and disposal of chemical poisons, and which contains no questions about pigeons or non- pesticide pest control techniques, cannot fairly evaluate an applicant’s fitness or capacity to install screens and pigeon spikes” (emphasis added). If the licensing requirement were aimed at public health and safety and consumer protection, he argues, the requirements would have included provisions regarding non-pesticide techniques as well. The government responds that “[l]icensure ensures that structural pest control operators are educated about potential health threats caused by vertebrate pests, including mice, rats, and pigeons.” By requiring structural pest controllers to obtain licenses, the state creates a framework to monitor them and keep them accountable. Furthermore, requiring persons who do not use pesticides to learn about the risks of pesticides is rationally related to the government’s interest in public safety because persons like Merrifield work in environments where they may be exposed to pesticides that have been applied previously and left on-site. Finally, the government MERRIFIELD v. LOCKYER 14693 contends that structural pest controllers should be educated on the various consumer options with respect to pest control, so that they can advise their customers on the relative effective- ness and flaws of different control techniques. The govern- ment offers no evidence that pigeons have been covered in prior examinations, but points out several aspects of the examination covering skills and knowledge relevant to all per- sons engaged in structural pest control. [8] The merits of the government’s contentions are best understood by reference to the sample examination itself. With respect to the exam, a significant number of the ques- tions on the examination are very relevant for persons like Merrifield. Other questions on the examination address inver- tebrate pests, or vertebrate pests that are not mice, rats, or pigeons. But those questions are equally “irrelevant” to pesticide-based pest controllers who specialize in targeting mice, rats, and pigeons. The licensing statute does not fail because it is not tailored to each precise specialization within a field. “It is enough that there is an evil at hand for correc- tion, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical, 348 U.S. 483, 488 (1955). Finally, many more questions do relate directly to Merri- field’s line of work. For example, 12 questions discuss rats and mice. Some other questions test the applicant’s ability to recognize what pest is responsible for an infestation by describing signs and asking the applicant which animal would leave such marks. These questions are relevant. Even if the answer is not “mice,” “rats,” or “pigeons,” a person specializ- ing in mice, rats, or pigeons should be able to recognize what traces such pests would not leave. In this way, many questions that Merrifield discounts as irrelevant, perhaps based on the fact that their correct answers are not “mice,” “rats,” or “pi- geons,” in fact test knowledge relevant to all structural pest control. 14694 MERRIFIELD v. LOCKYER Furthermore, several questions address legal requirements that apply to all persons engaged in structural pest control and have no relation to the risks of pesticides or to any particular animal. [9] Having reviewed the examination questions, we con- clude that Merrifield’s claims understate their relationship to his line of work. All three licensing requirements have a con- nection to competence in the field, and therefore satisfy ratio- nal basis review. In other words, unlike in Craigmiles, California has a legitimate public health interest in requiring all structural pest controllers to obtain licenses. Therefore, Merrifield’s challenge to the rationality of the licensing requirement under due process must be rejected. C [10] Finally, Merrifield argues that the classification within the statutory exemption has no rational basis and thus violates equal protection. Section 8555(g) discriminates between non- pesticide pest controllers of vertebrate animals such as “bats, raccoons, skunks, and squirrels,” and non-pesticide pest con- trollers of “mice, rats, or pigeons.” Only the former are exempt from the licensing requirement. Merrifield argues that this distinction, based upon the type of pest controlled, is irra- tional. 1 [11] Under rational basis review, Merrifield’s claim must be rejected as long as “there is any reasonably conceivable state of facts that could provide a rational basis” for the chal- lenged law. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). The government is not required to substantiate its rea- soning with facts. “In an equal protection case of this type . . . those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true MERRIFIELD v. LOCKYER 14695 by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111 (1979) (emphasis added). “The State is not com- pelled to verify logical assumptions with statistical evidence.” Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812 (1976) (emphasis added). The Supreme Court has stated that “[l]egislatures may implement their program step by step, in . . . economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (internal citation omitted). “States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” Id. (emphasis added). Indeed, we must remember that “the judi- ciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along sus- pect lines.” Id. In Dukes, the Supreme Court upheld an ordinance which exempted pushcart owners who had been selling food for at least 8 years from a general prohibition on pushcarts in the French Quarter. Id. at 298-99. The Court determined that the city had a legitimate interest in maintaining the charm of the French Quarter and that limiting the number of pushcart ped- dlers by only allowing those who were older, was rationally related to that interest because the French Quarter’s older ped- dlers were part of the charm and had more of an established interest than newer ones. Id. at 304-05. The Sixth Circuit’s equal protection analysis in Craigmiles is also instructive. The court considered the history of the leg- islation and held that the state had “specifically amend[ed]” the legislation to include casket retailers. 312 F.3d at 227. The court determined that this fact, the singling out of a particular economic group, with no rational or logical reason for doing 14696 MERRIFIELD v. LOCKYER so, was strong evidence of an economic animus with no rela- tion to public health, morals or safety. Therefore, the court concluded that the funeral director licensing scheme which required casket sellers to obtain a license was unconstitutional for failure to survive rational basis scrutiny. Id. at 227-29. 2 Here, the record reveals at least one conceivable purpose, which the government’s expert, Eric Paulsen, discussed in his testimony. Paulsen worked for the Pest Control Operators of California (“PCOC”) from 1991 to 1997, for Mission City Fumigation and California Heat from December 1997 to Sep- tember 1998, and again for PCOC from September 1998 onward. These jobs gave him insights into the legislative his- tory of section 8555(g), because he represented the PCOC at meetings with legislators and Board members involved in reforming the licensing requirements.13 Paulsen explained that the California legislature decided to change its structural pest licensing requirements after Assemblywoman Valerie Brown received complaints from constituents who wanted to exter- minate pests with “homemade concoctions” that fell within the Branch II requirements but were not purchased as pesti- 13 Contrary to Merrifield’s suggestions, Paulsen did not express the viewpoint of the government. Merrifield asked the district court to strike much of Paulsen’s testimony on the grounds that Paulsen was not an expert on the matters in question—a point the district court rejected due to “Paulsen’s more than twenty years of experience in the field of struc- tural pest control.” Merrifield v. Lockyer, 388 F. Supp. 2d 1051, 1063 (N.D. Cal. 2005). Paulsen certainly had the ability to testify to his personal experiences with the legislature. However, the actual purpose of the legis- lature did not matter for rational basis review. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Thus the district court held Paulsen’s statements about the legislative history to be “irrelevant to the extent they relate to the actual purposes and motivations of the [Board] and its members,” but “since the Court did not consider the statements for this purpose, the Court declines to sustain [Merrifield’s] objections to the statements in this regard.” Merrifield, 388 F. Supp. 2d at 1064 (emphasis added). MERRIFIELD v. LOCKYER 14697 cides. They sought “to have their own license that dealt with their specialty.” However, Paulsen explained, the legislature did not want to create “additional licensing categories” and thus the question became whether to exempt persons who did not use “dangerous pesticides.”14 Paulsen explained that the PCOC opposed any licensing exemption, including with respect to pigeons. “[O]ur position as the Pest Control Opera- tors of California and my understanding [of] the Structural Pest Control Board’s position was that the trapping and exclu- sion of any of these birds [pigeons] really should [require] a structural pest control license.” When asked about a limited exemption based on the type of animal targeted, Paulsen asserted that such a compromise, would “from the lay per- son’s perspective . . . be irrational.” Merrifield argues that Paulsen’s testimony should be read to mean that any retention of the licensing requirement was irrational. The text belies that assertion—Paulsen thought the removal of the requirement could be viewed as irrational in the sense that the exempted activities also posed health risks. However, Paulsen explained at length that the compromise could be justified on the grounds that mice, rats, and pigeons are the most common structural pests, and in particular “[p]igeons are the primary bird which is attacking structures.” He also posited that the impact of non-pesticide based control of such pests would be relatively greater insofar as non- pesticide techniques would be the most common. Indeed, Merrifield’s experts did not dispute the rationality of maintaining a licensing requirement for persons engaged in structural pest control without pesticides. Instead, they argued that a separate category would be better, because “[t]he field covered by the Branch [II] category is simply too large to be covered by one examination.” The record itself reveals that, 14 The record corroborates Paulsen’s testimony regarding the impetus for the bill. 14698 MERRIFIELD v. LOCKYER as initially proposed, the legislation would have created a sep- arate licensing category. 3 [12] Generally, the legislature’s decision to remove certain licensing requirements that it no longer deems essential, rather than create a new licensing category, is a rational and quintessentially legislative decision. Despite the reasons given by the government for the exemption, it does not logically fol- low from the legislative assumptions that removing the licens- ing requirement for non-pesticide control of less common pests—especially those more commonly and effectively con- trolled by pesticides—would pose a lesser risk to public wel- fare. Indeed, those engaging in the non-pesticide control of less common pests are more likely to encounter prior pesti- cide use or are more likely to recommend that their clients use pesticides rather than their services. In other words, those exempted under the current scheme are more likely to be exposed to pesticides than individuals like Merrifield. The possibility that non-pesticide-using pest controllers might interact with pesticides or will need the skill to suggest pesticide use when it would be more effective is the very rationale that government’s counsel proffered, and we relied upon, in upholding the requirement that Merrifield obtain a license under due process grounds. We cannot simultaneously uphold the licensing requirement under due process based on one rationale and then uphold Merrifield’s exclusion from the exemption based on a completely contradictory rationale. Needless to say, while a government need not provide a per- fectly logically solution to regulatory problems, it cannot hope to survive rational basis review by resorting to irratio- nality. [13] This case is deceptively similar to Dukes, where the plaintiffs were prohibited from engaging in the same push- carting business that others were allowed to engage in. Here, MERRIFIELD v. LOCKYER 14699 Merrifield is engaged in the non-pesticide extermination of pests and those who are exempt from the licensing require- ment also engage in the same business. In Dukes, the City of New Orleans drew a classification line based on when a per- son began his or her pushcart business. Here, the line drawn by the State is based on what kinds of pests the business exterminates. However, unlike in Dukes, there is not a legitimate interest implicated by the classification. The Supreme Court in Dukes held that the City of New Orleans was legitimately concerned with maintaining the charm and beauty of the French Quarter and the limitation of pushcarts was rationally related to fur- thering that interest. Here, structural pest control implicates a state’s health and public safety interest. The Court in Dukes found that the line drawn was a rational way to balance the city’s interest in preserving the French Quarter with the estab- lished interest of older pushcart owners and the fact that some pushcarts actually contributed to the French Quarter’s charm. Here, however, when applying the state’s own rationale for requiring pest controllers such as Merrifield to take the licens- ing exam, the exemption scheme cannot be said to rest on a rational basis. Therefore, we conclude that Dukes does not require us to uphold the exemption scheme in this case. Moreover, just as in Craigmiles, the licensing scheme in this case specifically singles out pest controllers like Merri- field in the exemption legislation. Needless to say, this type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet the relatively easy standard of rational basis review. Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield.15 15 We conclude that mere economic protectionism for the sake of eco- nomic protectionism is irrational with respect to determining if a classifi- 14700 MERRIFIELD v. LOCKYER Although economic rights are at stake, we are not basing our decision today on our personal approach to economics, but on the Equal Protection Clause’s requirement that similarly situ- ated persons must be treated equally. The Craigmiles court said it best: Our decision today is not a return to Lochner, by which this court would elevate its economic theory over that of legislative bodies. See Lochner v. New York, 198 U.S. 45 (1905). No sophisticated eco- nomic analysis is required to see the pretextual nature of the state’s proffered explanations for the [ . . . ] amendment. We are not imposing our view of a well-functioning market on the people of [this state]. Instead, we invalidate only the [decisionmak- ing body]’s naked attempt to raise a fortress protect- ing [one subsection of an industry at the expense of another similarly situated] . . . . 312 F.3d at 229. [14] Here, the government has undercut its own rational basis for the licensing scheme by excluding Merrifield from the exemption. The exemption from the license is given to those non-pesticide pest controllers who are most likely to interact with pesticides. Additionally, the non-pesticide pest controllers who are least likely to interact with pesticides must remain part of the licensing scheme. Therefore, the exemption scheme is not supported by a rational basis review. cation survives rational basis review. In doing so, we agree with the Sixth Circuit in Craigmiles and reject the Tenth Circuit’s reasoning in Powers v. Harris, 379 F.3d 1208, 1218-19 (10th Cir. 2004). Powers rejected the Sixth Circuit’s conclusion that economic protectionism for its own sake is irrational. Id. We do not disagree that there might be instances when eco- nomic protectionism might be related to a legitimate governmental interest and survive rational basis review. However, economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest. MERRIFIELD v. LOCKYER 14701 [15] We conclude that the section 8555(g) license exemp- tion to the extent it does “not include mice, rats, or pigeons” is unconstitutional. IV For the foregoing reasons, summary judgment in favor of the State on the exemption issue is reversed. The district court, on remand, shall enter a judgment in favor of Merri- field. AFFIRMED in part & REVERSED in part and REMANDED. Costs are to be awarded to Appellant. HAWKINS, Circuit Judge, concurring in part and dissenting in part: I certainly agree with the majority’s carefully thought out determination that California is entitled to require testing for pesticide knowledge of rodent and pest control operators who employ non-pesticide methods. Like the district court, how- ever, I think it rationally follows from this that the state may determine which type of service providers should face a test- ing or licensing requirement and which should not. See, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (leg- islatures may adopt regulations that “only partially ameliorate a perceived evil”). I would affirm across the board.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3053891/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALASKAN INDEPENDENCE PARTY;  LINDA WINKELMAN; ALASKA LIBERTARIAN PARTY, INC.; SCOTT No. 07-35186 KOHLHAAS, D.C. No. Plaintiffs-Appellants, v.  CV-06-00040-TMB ORDER STATE OF ALASKA, Division of AMENDING Elections; LOREN LEMAN OPINION Lieutenant Governor, Defendants-Appellees.  Filed October 22, 2008 Before: Dorothy W. Nelson, A. Wallace Tashima and Raymond C. Fisher, Circuit Judges. ORDER A docketing error based on appellants’ notice of appeal resulted in the court erroneously referring to appellants as “Alaska Independence Party” instead of “Alaskan Indepen- dence Party”. Therefore, the opinion filed October 6, 2008, at slip op. 14117, is amended as follows: The caption of the opinion shall read: 14723 14724 ALASKAN INDEPENDENCE PARTY v. ALASKA ALASKAN INDEPENDENCE PARTY;  LINDA WINKELMAN; ALASKA LIBERTARIAN PARTY, INC.; SCOTT KOHLHAAS, No. 07-35186 Plaintiffs-Appellants, v.  D.C. No. CV-06-00040-TMB STATE OF ALASKA, Division of OPINION Elections; LOREN LEMAN Lieutenant Governor, Defendants-Appellees.  In addition, any reference to “Alaska Independence Party” throughout the opinion shall be replaced with “Alaskan Inde- pendence Party.” The Clerk of Court is instructed to amend the court docket to reflect the correct name of the parties. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2008 Thomson Reuters/West.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892596/	NO. 07-03-0106-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MARCH 23, 2005 ______________________________ TERRY ROJAS PERKINS, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY; NO. CR-01J-152; HON. H. BRYAN POFF, JR., PRESIDING _______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Appellant, Terry Rojas Perkins, appeals from her conviction of theft by check. In doing so, she claims in one issue that the trial court erred in denying her special plea of double jeopardy. We affirm the judgment of the trial court. Background In a prior proceeding in county court, appellant was charged in Cause No. 00-0147 for the offense of theft by check from Jim Feagan on December 23, 1999, in an amount of $20 or more but less than $500. She pled guilty, was convicted, and was placed on probation for one year. One of the terms of her probation was that she make restitution on 15 insufficient checks which were identified by amount and person. The State later sought to revoke her probation, and the trial court entered an agreed order on November 9, 2000, extending her probation and increasing the amount of restitution. When the State again sought to revoke her probation, she pled true to the alleged violations, one of which was the failure to make restitution, and was sentenced on January 30, 2003, to 180 days in the county jail. In the meantime, appellant was indicted on October 18, 2001, in the current proceeding for theft by check in 41 counts. Furthermore, the aggregate value of the property allegedly obtained through the theft was $1,500 or more but less than $20,000. Appellant filed a special plea of double jeopardy contending that the checks for which she was ordered to make restitution in Cause No. 00-0147 were included in the indictment in this cause (No. CR-01J-152). This subjected her to being twice punished for the same offense, she alleged. After the trial court denied the claim, she pled guilty. Applicable Law We review a trial court's decision to deny a double jeopardy claim under an abuse of discretion standard. Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.-Amarillo 2000, no pet.). In other words, the decision must fall outside the "zone of reasonable disagreement." Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.-Amarillo 1999, pet. ref'd). Moreover, in determining if it did, we consider issues of law de novo. Vasquez v. State, 22 S.W.3d at 31. However, when issues of fact underlying the decision were disputed or the resolution of those issues depended upon consideration of the credibility and demeanor of witnesses, we must defer to the manner in which the trial court resolved those issues and applied the facts to the law involved. Id. at 31-32. Next, the burden is on the defendant to come forward with evidence in support of his allegation of double jeopardy. Anderson v. State, 635 S.W.2d 722, 725 (Tex. Crim. App. 1982); Bowen v. State, 131 S.W.3d 505, 509 (Tex. App.-Eastland 2004, pet. ref'd); Bailey v. State, 44 S.W.3d 690, 694 (Tex. App.-Houston [14th Dist.] 2001), aff'd, 87 S.W.3d 122 (Tex. Crim. App. 2002). Thus, he must produce a record showing on its face that the State is attempting to punish him twice for the same offense. See Gonzalez v. State, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000). Additionally, if the record fails to contain evidence to support the plea of jeopardy, we may not reverse the trial court's ruling. Anderson v. State, 635 S.W.2d at 726. Application of Law The record includes a Restitution Breakdown that lists the debts that appellant was required to repay as a condition of her probation. The breakdown identified the entities and/or individuals to whom the defendant was indebted and the amount owed. However, there is no further identification of the debts by date or check number. Next, while the indictment in Cause No. CR-01J-152 mentions the name of the persons to whom the bad checks were written, nothing is said of the check number or its specific amount. And, while some of the names mentioned in the breakdown match some in the indictment, not all do. Furthermore, the Breakdown of Restitution attached to the order placing appellant on community supervision in this proceeding also contains only the entity and/or person owed and the amount, but no check number. (1) Thus, upon the record before us, the trial court could have held that appellant failed to prove that the same checks were involved in both proceedings and, therefore, that appellant was in fact being punished twice for the same offense. And, because of that, the trial court did not abuse its discretion in denying the plea. Accordingly, the judgment of the trial court is affirmed. Per Curiam Johnson, C.J., not participating. Do not publish. 1. We do not find that this list was before the trial court at the time that it ruled on the plea of double jeopardy. al to genital penetration in Count\ I is not distinct from proof of genital to genital penetration in Count II. See Vick, 991\ S.W.3d at 833 n.1. (noting proof of genital to genital penetration is distinct from proof of\ genital to mouth contact because each requires proof of an element the other does not).\ ' var WPFootnote12 = ' See Duran v. State, No. 07-07-0110-CR, 2008 WL 794869 (Tex.App.–Amarillo\ March 26, 2008, pet. ref’d). There, the amended indictment charged the defendant with\ penetration of the victim’s sexual organ (Count II) and penetration of the victim’s anus\ (Count III). In determining the defendant was not denied grand jury review of the charges\ against him, this Court stated “the amended indictment did not charge an additional or\ different offense; it merely separated the different means of committing the same offense,\ sexual assault, into two different counts.” See Tex. Code Crim. Proc. Ann. art. 21.24(a).\ ' var WPFootnote13 = ' But cf. Ex Parte Cavazos, 203 S.W.3d 333, 338 (Tex.Crim.App. 2006) in which\ the court overruled cases holding other factors such as degree of felony, range of\ punishment, and rules governing parole eligibility and awarding of good-conduct time\ should be used in making the determination of which offense is the most serious.\ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 \|\| floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( 'Close'); floatwnd.document.write( "" ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } NO. 07-07-0036-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E FEBRUARY 27, 2009 ______________________________ ROBERT L. GONZALES, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2006-414463; HON. CECIL G. PURYEAR, PRESIDING _______________________________ Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J. MEMORANDUM OPINION Appellant Robert L. Gonzales, Jr. appeals from his jury conviction of two counts of aggravated sexual assault and the resulting concurrent sentences of life imprisonment for each count. Appellant presents us with five points of error through which he urges reversal. We affirm the trial court’s judgment as to Count I and vacate the trial court’s judgment as to Count II. BackgroundBy a November 2006 indictment, appellant was charged with three counts of aggravated sexual assault and one count of indecency with a child by contact, the offenses alleged to have occurred in a single episode in July 2005. Following appellant’s plea of not guilty, the matter proceeded to jury trial in January 2007. The State elected to proceed on two aggravated sexual assault counts. One charged appellant with aggravated sexual assault of his eight-year-old daughter by penetration of her sexual organ, the second, by penetration of her anus. On July 17, 2005, following an incident during which appellant, the complainant’s father, seriously beat complainant A.G.’s mother, eight-year-old A.G. confided to her cousin and another female that appellant had sexually abused her the night before. A.G.’s mother was informed of her allegations and A.G. was taken to the hospital for examination. A.G. was also examined by individuals at the C.A.R.E. Center. Medical evidence introduced at trial reflected that A.G. had three tears in her genitalia and her labia was “very swollen and red.” No semen was found and no other noticeable trauma was present. A.G., ten years old by the time of trial, testified that appellant vaginally and anally penetrated her. She testified that these actions “hurt really bad” and that she screamed for her father to stop, telling him it hurt. The assault continued until A.G.’s baby sister woke up and cried. Appellant got up and A.G. went to the restroom, finding blood. The next day, A.G. saw her mother and observed the severity of her injuries. A.G. testified she went to a social gathering at her aunt’s that day where she swam, jumped on the trampoline, and went down the slide. A.G.’s mother testified A.G. appeared to be behaving normally that day. The jury found appellant guilty and assessed punishment at life imprisonment. Appellant filed a motion for new trial, which was denied without a hearing. This appeal followed. Issues Through five issues, appellant contends the trial court erred by: (1) denying his motion for continuance filed on the day of trial; (2) overruling his offer of proof at trial and wrongfully excluding evidence of a prior outcry and allegation of sexual abuse by A.G. against another individual; (3) including an unduly expansive and improper definition of “female sexual organ” in the jury instructions; (4) violating his double jeopardy rights by convicting him of two felonies allegedly committed against the same individual on the same occasion, differing only in their manner and means; and (5) abusing its discretion in denying appellant’s motion for new trial without conducting an evidentiary hearing. Analysis Denial of Motion for Continuance and Motion for New Trial Appellant’s first and fifth issues address the court’s ruling regarding appellant’s request for an appointed expert. In his first point of error, appellant argues that the trial court erred in granting his request and appointing an expert but denying his accompanying motion for a continuance. By doing so, he argues, the trial court denied him the right to an effective expert as appointing one at the start of trial did not allow sufficient time for the expert to prepare. In his fifth point of error, appellant argues the trial court abused its discretion by denying him a hearing on his motion for new trial because the motion set forth the need for an evidentiary hearing to resolve the question of the degree and severity of the due process harm suffered by appellant by not having an effective expert witness available at trial. Motion for Continuance A ruling on a motion for continuance is a matter left to the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006). We thus apply an abuse of discretion standard of review to the trial court’s ruling. Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995); Wilson v. State, 195 S.W.3d 193, 197 (Tex.App.–San Antonio, 2006, no pet.). To prevail here, appellant also must show that he was actually prejudiced by the trial court’s ruling. Heiselbetz, 906 S.W.2d at 511. Appellant’s motion for appointment of a medical expert to aid in his defense stated, as a factual basis, that discovery in the case showed “technical medical issues relating to the issue of penetration. More particularly, the available medical records of the alleged victim show no evidence of semen, an intact hymen, and minor trauma to the genital areas. Evidence of anal penetration as charged is similarly ambiguous, at least to a layman, showing what appears to be superficial external (?) (sic) trauma.” The motion named the physician appellant desired to have appointed, Dr. Kevin Funk. It asserted the expert’s services were “necessary to enable [appellant’s] counsel to prepare effectively for trial, present favorable evidence and to confront and cross-examine the state’s medical expert or experts.” The trial court granted appellant’s request and appointed Dr. Funk, but denied the motion for continuance. On appeal, appellant contends the trial court erred because the appointment of the expert without also granting a continuance resulted in inadequate preparation time for the expert to assist appellant in his defense. Appellant argues that as a consequence, appellant’s due process right to expert assistance was violated and he was actually prejudiced. Having reviewed the record, we find the trial court did not abuse its discretion by denying the continuance. Appellant’s motion for continuance was filed with the motion for appointment of a medical expert, on the morning of trial. The trial court was within its discretion to find that the fair and efficient administration of justice weighed more heavily in favor of denying the motion. See Greene v. State, 124 S.W.3d 789, 794 (Tex.App.–Houston [1st Dist.] 2003, pet. ref’d). Moreover, we are unable to see that the contention presented on appeal, i.e., without the continuance the appointment of a medical expert was ineffective, was ever expressly presented to the trial court. Although the motion for continuance incorporated by reference the motion for medical expert, the continuance motion did not tell the trial court that one was ineffective without the other. Nor was such an argument made during the pretrial hearing at which the request for an expert was granted. Finally, the record shows that Dr. Funk reviewed A.G.’s medical record and photographs taken at C.A.R.E. He prepared a brief report, which was received in the office of appellant’s counsel sometime during the second day of trial. Counsel saw it sometime after 5:00 p.m. that evening. Appellant has demonstrated neither an abuse of discretion or actual prejudice resulting from the trial court’s denial of a continuance on the morning of trial. Motion for New Trial Likewise, we find the trial court did not abuse its discretion in denying appellant’s motion for new trial without allowing him an opportunity to present evidence. Appellant’s complaint regarding the denial of his motion for new trial is predicated on essentially the same evidence as his complaint regarding the denial of his motion for continuance: the trial court deprived him of due process rights in appointing an expert without also granting a continuance. In support of his motion for new trial, appellant attached the appointed expert’s report and an affidavit from trial counsel describing his receipt of the expert’s brief report and his reaction to it. We review a trial court's denial of an evidentiary hearing on a motion for new trial for an abuse of discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003). A defendant's right to a hearing on a motion for new trial is not absolute. Rozell v. State, 176 S.W.3d 228, 230 (Tex.Crim.App. 2005). Thus, a trial court is not required to conduct a hearing of the defendant's motion for new trial if the matters raised in the motion are determinable from the record, or if the motion and supporting affidavits are not sufficient to put the trial court on notice that reasonable grounds for a new trial may exist. Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App. 1994). When there are no issues presented in a motion for new trial which would require proof to be developed outside the record, or when the matters raised are subject to being determined from the record, there is no error in overruling the motion without conducting an evidentiary hearing. Rodriguez v. State, 82 S.W.3d 1, 2 (Tex.App.–San Antonio 2001, pet. dism’d). As noted herein, all of the allegations raised in appellant’s motion for new trial were determinable from the trial record and accordingly, we find no abuse of discretion. The record shows counsel considered subpoenaing Dr. Funk after reading his brief report. We agree with the State that, far from demonstrating appellant suffered violation of his due process rights through counsel’s failure to do so, the record shows counsel’s reasonable exercise of professional judgment that making the jury aware of the opinions Dr. Funk expressed in his report would not be helpful to appellant’s defense. Like the Court of Criminal Appeals in Wallace, 106 S.W.3d at 108, we conclude that on this record, the trial court reasonably could have concluded appellant’s motion and accompanying affidavits did not show that he could be entitled to relief. In light of the entire evidentiary record and the opinions Dr. Funk expressed in his report, we cannot find persuasive appellant’s contention that the doctor’s more extensive involvement in the case “might have led to major exculpatory testimony.” Our review of the record reveals a second reason we must conclude the trial court did not abuse its discretion by failing to hold a hearing. Although appellant’s motion was entitled “Motion for New Trial and for Evidentiary Hearing,” the motion does not contain a request for a hearing, nor does the order in the record make reference to a hearing. See Rozell, 176 S.W.3d at 231 (reference to hearing in order attached to motion insufficient to request hearing when motion did not contain request). We overrule appellant’s first and fifth issues on appeal. Exclusion of Evidence Set Forth in Offer of Proof In appellant’s second issue, he asserts the trial court erred in overruling his offer of proof at trial concerning an earlier outcry of sexual abuse by A.G. regarding another individual. This evidence included medical records and testimony by A.G.’s mother. In appellant’s offer of proof, A.G.’s mother testified that in 2001 appellant’s sister told her that A.G. claimed she had been “hurt” by an uncle that touched her inappropriately. This claim was purportedly elicited after appellant’s sister asked A.G. leading questions. The medical evidence introduced in appellant’s offer of proof showed that A.G. was examined on that occasion, and that the examination revealed no injury or trauma. Appellant argued that A.G.’s prior experience with such an outcry, in conjunction with A.G.’s knowledge of appellant’s assault on her mother and her observations of her mother’s injuries from that assault, led to fabrication regarding the allegations against him, particularly in light of the fact that A.G.’s allegations against him came to light shortly after A.G. observed injuries sustained by her mother from an assault by appellant. Appellant contends that the evidence proffered was proof of motive, intent, plan, or knowledge on the part of A.G. or her mother, admissible under Texas Rule of Evidence 404(b). The trial court’s decision whether to admit evidence under Rule 404(b) will be upheld on appeal absent an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). Thus, we will not intercede as long as the trial court's ruling was at least within the zone of reasonable disagreement. Id. Evidence may be admissible under Rule 404(b) if it has relevance apart from character conformity; that is, it tends to establish some elemental fact, such as intent; that it tends to establish some evidentiary fact, such as motive, opportunity, or preparation leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing the absence of mistake or accident. Id. at 387-88. Relevant evidence is 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. Tex. R. Evid. 401. Relevant evidence is presumed admissible. Erazo v. State, 144 S.W.3d 487, 499 (Tex.Crim.App. 2004). Appellant contends on appeal that the excluded evidence served to support his theory that A.G. fabricated the story of the sexual assault. He points to evidence that A.G. voiced her outcry shortly after she first saw the injuries her mother suffered from appellant’s beating the night before. A.G. testified at trial that her mother looked “horrible.” During cross-examination, A.G. agreed with counsel that she felt “very angry” about the beating. In this context, appellant argues the jury should have been permitted to hear the evidence of “a previous unfounded accusation by [A.G.].” As the State points out, the testimony of A.G.’s mother in appellant’s offer of proof provides only indirect evidence of any statement by A.G. As noted, the mother testified that appellant’s sister told her of A.G.’s statements. A.G. made no outcry to her mother on that occasion. Appellant’s theory places the proffered evidence within the rule discussed in Lape v. State, 893 S.W.2d 949, 956 (Tex.App.–Houston [14th Dist.] 1994, pet. ref’d), in which the court affirmed the trial court’s exclusion of testimony concerning the complainant’s prior allegations of sexual assaults because the allegations were not shown to be false. The trial court reasonably could have viewed the testimony here in a similar light. Although it is clear from the mother’s testimony that she believed appellant’s sister was coaching A.G. in the 2001 incident, no evidence shows that the specific statement attributed to A.G., then five years old, was false. The trial court’s exclusion of the offer of proof testimony was not outside the zone of reasonable disagreement. Appellant’s second issue is overruled. Double Jeopardy Appellant’s fourth point of error asserts the trial court erred by overruling appellant’s objections on double jeopardy grounds to the application paragraphs of the jury charge, thereby violating appellant’s constitutional rights. Appellant specifically contends that his conviction of two counts of the same offense, committed against the same individual on the same day, differing only in manner and means, violated his constitutional rights. Double jeopardy prohibits: (1) a subsequent prosecution for the same offense after acquittal; (2) a subsequent prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Gonzales v. State, 8 S.W.3d 640 (Tex.Crim.App. 2000); Nickerson v. State, 69 S.W.3d 661, 670-71 (Tex.App.–Waco 2002, pet. ref’d). The double jeopardy guarantee against multiple punishments for the same offense does no more than to prevent greater punishment than the legislature intended. Hutchins v. State, 992 S.W.2d 629, 631 (Tex.App.–Austin 1999, pet. ref’d). Appellant argues here he has been subjected to multiple punishments for the same offense by virtue of multiple counts alleging differing manner and means. Thus, the inquiry here is whether the Legislature intended to permit multiple punishments for proscribed acts contained within the same statutory subsection. See, e.g., Ervin v. State, 991 S.W.2d 804, 814 (Tex.Crim.App. 1999). When multiple punishments arise out of one trial, the Blockburger test is the starting point in analyzing two offenses. Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App. 2008). See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Blockburger test asks whether each offense requires proof of an additional fact which the other does not. Id. at 304. See Vick v. State, 991 S.W.2d 830, 833 n.1 (Tex.Crim.App. 1999), citing United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993) (reaffirming Blockburger test). When each offense requires proof of an element that the other does not, multiple prosecution is not barred. Vick, 991 S.W.2d at 833 n.1. In this case, Count I required the State to prove penetration of A.G.’s anus by appellant’s penis (genital to genital act). Count II required the State to prove penetration of A.G.’s female sexual organ by appellant’s penis (also genital to genital act). The only fact not common between the two is the State would have to prove appellant penetrated A.G.’s anus with his penis in Count I whereas the State would have to prove appellant penetrated A.G.’s female sexual organ with his penis in Count II. The two offenses are therefore not the same under a strict application of the Blockburger test. However the Blockburger test is a rule of statutory construction and is not the exclusive test for determining if the two offenses are the same. Bigon, 252 S.W.3d at 370. In Ervin, 991 S.W.2d at 814, the Court of Criminal Appeals laid out a non-exclusive list of factors to consider when examining if two offenses are the same in the context of multiple punishment. Those factors include: (1) whether the offense provisions are contained within the same statutory section; (2) whether the offenses are phrased in the alternative; (3) whether the offenses are named similarly; (4) whether the offenses have common punishment ranges; (5) whether the offenses have a common focus, i.e. “gravamen;” (6) whether that common focus tends to indicate a single instance of conduct; (7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and (8) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Ervin, 991 S.W.2d at 814. These factors are not exclusive, and the question ultimately is whether the legislature intended to allow the same conduct to be punished under both of the offenses. Bigon, 252 S.W.3d at 371, citing Ervin, 991 S.W.2d at 814. We apply those factors here. The evidence presented at trial indicated that appellant sexually assaulted his daughter by means of penetrating her (1) anally (Count I) and (2) vaginally (Count II). Each of the offenses for which appellant was convicted are set forth in section 22.021 of the Penal Code. See Tex. Penal Code Ann. § 22.021 (Vernon 2007). In fact, each of the offenses are set forth in the same subsection of the statute. See Tex. Penal Code Ann. § 22.021(a)(B)(i) (Vernon 2007). This subsection provides: (a) A person commits an offense: (1) if the person: (B) intentionally or knowingly: (i) causes the penetration of the anus or sexual organ of a child by any means;.... The offenses for which appellant was convicted, penetration of A.G.’s anus and penetration of A.G.’s female sexual organ, are set forth in the same subsection in the alternative. The offenses both fall under the name “aggravated sexual assault” and differ only with regard to the part of the body penetrated. The proscribed acts are subject to the identical punishment, i.e., imprisonment for life or any term not more than 99 years or less than 5 years and a fine of not more than $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003). The focus of the offenses is the same: penetration of the child’s genital area. See Vick v. State, 991 S.W.2d at 833. Lastly, section 22.021 is a conduct-oriented offense in which the Legislature criminalized very specific conduct of several different types. Id. Each of the criminalized acts is set forth in detail in five separate subsections of the statute. Each section entails different and separate acts to commit the various, prohibited conduct. Id. The statute’s specificity in separating the acts reflects the legislature’s intent to separately and distinctly criminalize any act which constitutes the proscribed conduct. Id. Because the offenses for which appellant was convicted are under the same subsection, the Legislature did not intend to provide multiple punishments for two acts falling under a single subsection. We find each of the relevant factors weighs in favor of the two offenses being considered the “same” in these circumstances. We therefore agree with appellant that his convictions for both offenses constituted a violation of the double jeopardy guarantee. Generally, when a defendant is convicted of two offenses in violation of the double jeopardy guarantee, the offense carrying the more serious punishment will be retained and the other offense will be set aside. See Bigon, 252 S.W.3d at 372-73; Landers v. State, 957 S.W.2d 558, 560 (Tex.Crim.App. 1997); Hutchins, 992 S.W.2d at 632. Here, each offense carries the same punishment. We must, then, look to other criteria for determining which offense is the more serious. Bigon, 252 S.W.3d at 373. In a similar situation, the Court of Criminal Appeals looked to the degree of felony for each offense. Id. Again, we note both offenses for which appellant was convicted are first degree felonies subject to the same range of punishment and parole eligibility rules. See Tex. Penal Code Ann. § 22.021(e) (Vernon 2007); Tex. Penal Code Ann. § 12.32 (Vernon 2003). However, the trial court assessed court costs in the amount of $428 in Count I but did not assess any additional fees or costs in Count II. See Ex Parte Cavazos, 203 S.W.3d at 338-39 (same term of years assessed for each conviction, no fines assessed for either conviction, but restitution of $122 was ordered in the judgment for burglary with intent to commit theft and thus was the “most serious” offense). We find the offense under Count I is the more serious. There is a second reason to retain appellant’s conviction under Count 1. All other factors being equal, the conviction that should be affirmed is the offense named in the first verdict form. See Ex parte Cavazos, 203 S.W.3d at 339 n.8. Here, Count I appears first. For these reasons, we will retain appellant’s conviction and punishment for the offense alleged in Count I (aggravated sexual assault by penetration of A.G.’s anus by appellant’s penis) and vacate appellant’s conviction and punishment for the offense alleged in Count II (aggravated sexual assault by penetration of A.G.’s female sexual organ by appellant’s penis). Bigon, 252 S.W.3d at 372-73; Nickerson, 69 S.W.3d at 671. Our disposition of appellant’s first, second, fourth and fifth issues makes unnecessary our consideration of his third issue, which pertains to the jury charge on Count II. Accordingly, we vacate the trial court’s judgment as to Count II and affirm the trial court’s judgment as to Count I. James T. Campbell Justice Do not publish.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/126976/	537 U.S. 1174 POPEv.RAY, CHAIRMAN, GEORGIA BOARD OF PARDONS AND PAROLES, ET AL. No. 02-7678. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. 2 C. A. 11th Cir. Certiorari denied. Reported below: 46 Fed. Appx. 619.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/1256638/	116 Ga. App. 331 (1967) 157 S.E.2d 496 CODY v. THE STATE (two cases). 42973, 42974. Court of Appeals of Georgia. Submitted September 7, 1967. Decided September 19, 1967. Garland & Garland, Edward T. M. Garland, for appellant. Lewis R. Slaton, Solicitor General, J. Walter LeCraw, for appellee. PANNELL, Judge. In these cases a notice of appeal was filed appealing from an order of the trial judge refusing to grant a motion for suppression of evidence obtained by an alleged illegal search and seizure. The only judgments from which an appeal may be taken are those enumerated and set forth in Sec. 1 of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18; Code Ann. § 6-701). An order denying a motion to suppress evidence is not a final judgment within Paragraph 1 of that section, nor is it a judgment which would have been final "if it had been rendered as claimed for by the appellant" under Paragraph 2, nor is it among the types of judgments and orders listed in Paragraph 3 of that section. Accordingly, the motion to dismiss the appeals must be sustained. Appeals dismissed. Bell, P. J., and Whitman, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4005959/	The purposes of both suits are substantially the same: the first to enforce a forfeiture of all estate, rights and interests, of defendants Bessie M. Royer, Virginia F. Zinn, S. Alberta Flynn, and R. Stanley Dutterer, as devisees of the several tracts of land and interests therein devised to them by the will of the late Jacob H. Dutterer, in favor of the plaintiff J. Henry Dutterer and the defendant Flora K. Logan, the other devisees under the will, pursuant to a provision thereof, and to divide and partition said lands between them; the second, to enforce said forfeiture as to the personal estate of said decedent, in favor of the same parties, on the same ground, and for guidance and direction to said J. Henry Page 218 Dutterer, as one of the executors of said will, the defendant R. Stanley Dutterer being the other executor thereof. The testator, a prosperous farmer, by the eighth paragraph of his will, relied on as the basis for the relief prayed for, after making certain specific devises and bequests of real and personal property to his widow and to his two sons and four daughters, provided: "VIII. Direct that all the rest and residue of my estate, real, personal and mixed, of whatsoever kind and character, and wheresoever located, shall be equally divided among my six children, Virginia F. Zinn, Bessie M. Royer, Sarah A. Flynn, Flora K. Logan, J. Henry Dutterer and Robert S. Dutterer. Ifurther direct, in case that any of my children shall beinclined to be dissatisfied and cause any trouble in theadministration of my estate, I direct that they shall be cutoff of the provisions of my will, and direct that my executorspay them the sum of $10.00 in lieu of all interest." The last clause, italicised, is the forfeiture provision sought to have enforced. As ground for the alleged forfeiture, the bills allege that in December 1922, after the death of the testator in November 1921, and the probate of his will in December following, disregarding said forfeiture clause, the defendants Zinn, Royer, Flynn and R. Stanley Dutterer, who were inclined to be dissatisfied and to cause trouble in the administration of said estate, instituted a suit in equity in the circuit court for the purpose of contesting and having adjudged as no part of said will paragraph three thereof in favor of J. Henry Dutterer, on the alleged ground that the testator had been induced to execute the same and make the same a part of his will by the fraud and undue influence of the said J. Henry Dutterer and others; that said contest suit was instituted without probabilis causa litigandi, and that on the trial of the cause in the circuit court, a verdict had been directed for the defendants, and the bill dismissed, and that on appeal from that decree had been subsequently denied by this court; that plaintiff and Mrs. Logan were in possession of the lands forfeited; and the prayers of the bills were that the lands be Page 219 partitioned, and that the personal estate be divided in accordance with the alleged rights of the plaintiff and his sister, Mrs. Logan. The decrees appealed from and now before us for review granting the relief prayed for, were pronounced on August 2, 1926. Demurrers and answers to the bills challenge jurisdiction in equity to enforce the alleged forfeitures; and the answers set up by way of relief; (1) that the alleged forfeiture clause is too indefinite and uncertain to constitute the basis of forfeiture of the vested estates of defendants in the land and personal property devised and bequeathed to them respectively; (2) that the institution of the contest suit was not within the terms of the will against "giving trouble in the administration of the estate," but amounted simply to the asserting of a right, for probable cause charged, to test the validity of the specific provision of the will in favor of J. Henry Dutterer, on the grounds alleged in their bill; (3) that the alleged forfeiture clause containing no devise or bequest over, should be construed as merely an in terrorem provision, not enforceable in equity; (4) that there was probabilis causalitigandi, and the contest was instituted in good faith, and not for vexatious purposes, and the forfeiture clause should not be construed as intending to or to in fact cut off the devisees from appealing to the courts for a vindication of their rights and to prevent fraud and imposition upon them by the undue influence of other ambitious heirs or devisees. It is quite manifest that if we adopt the principle of the fourth proposition, and find it applicable to the facts pleaded and proven in this case, we need not further consider the other questions so ably and elaborately discussed in briefs and oral arguments of counsel, for its affirmance and application here will be decisive of the rights of the parties to the present litigation. It is well settled in those jurisdictions where the rule ofprobabilis causa litigandi prevails, that an unsuccessful contest will not be conclusive of the rights of the contestants Page 220 on the question of probable cause for instituting the contest.Stewart v. Sonneborn, 98 U.S. 187. In one of the leading cases on the subject, In Re Friend'sEstate, 209 Pa. 442, 449, it is said: "In view of this, we are now asked to say that the prior findings and conclusions of the court below are conclusive that there was not probable cause for this contest. The answer to this is, that the court, on the application for an issue devisavit vel non, made its findings and drew its conclusion after it had fully heard both sides, the contestant and the proponents of the will, and it is not to be assumed that they would have been the same if only the contestant and his witnesses had been heard." And generally, in suits for malicious prosecution, the advice of counsel constitutes a complete defense to an action for damages, if based on facts honestly obtained and fully disclosed. Sudnick v. Kohn, 81 W. Va. 492; Turner v. Brenner,138 Va. 323; Staunton v. Goshorn, 94 F. 52, 60, (C. C. A. Fourth Ct.); Stewart v. Sonneborn, supra; 18 Rawle C. L. p. 45. If such advice be a defense against a suit for criminal prosecution, it seems to us it ought to be equally so against the forfeiture of vested rights in property, which the law looks upon with the greatest disfavor, and equity will not enforce. Of course to avoid the consequences of a forfeiture, one claiming the benefits of a devise or bequest made subject to such a condition should be required to put himself clearly within the exception to the general rule. He should indeed have probable cause for instituting the contest. But on the other hand, before a court should deprive one of his right to litigate a just, or an apparent just, cause of action, it should in our opinion be satisfied that his complaint was not for the vindication of what he really believed a substantial right, but for vexatious purposes. Radochio v. Katzen, 92 W. Va. 342;Bailey v. Gollehon, 76 W. Va. 322, 328; Brady v.Stiltner, 40 W. Va. 289; Porter v. Mack, 50 W. Va. 581, 595. These cases are in accord with the great weight of modern decisions, English and American. Powell v. Morgan, Vern. 92, 23 Eng. Rep. 668; Morris v. Burroughs, 1 Atk. 404, 26 Eng. Rep. 256; Lloyd v. Spillet, 3 P. Wms. 344; Page 221 24 Eng. Rep. 1094; In Re Friend's Estate, supra; Grace v. Kleindinst,275 Pa. 266; Smithsonian Inst. v. Meech, 169 U.S. 399; Fifield v.Van Wyck, 94 Va. 557; Tate v. Camp,147 Tenn. 137; Wright v. Cummings, 108 Kan. 667; Whitehurst v.Gotwalt, 189 N.C. 577, Re Kennan, Wis., 205 N.W. 1001; Schouler on Wills, (5th ed.), § 605; 2 Alexander on Wills, 1519. The authorities to the contrary mainly relied on to support the strict rule of enforcement announced in Cook v. Turner, 15 M. W. 27, are Bradford v. Bradford, 19 Ohio St. 546; Thompson v. Gaut, 14 Lea, (Tenn.), 310; Donegan v. Wade, 70 Ala. 501; InRe Hite, 155 Cal. 436; In Re Miller, 156 Cal. 119; and Moran v. Moran, 144 Iowa 451. In Tennessee the court in a later case has evidently fallen in with the majority rule, as will appear from Tate v. Camp, supra, where it was decided that a contest in good faith and for probable cause will not result in a forfeiture. The Ohio case seems to have been based solely on Cook v. Turner, and Thompson v. Gaut, on the Ohio case. The case in New Jersey of Hoit v. Hoit,42 N.J. Eq. 388, also cited and relied on by counsel for plaintiff, involved provisions imposing upon contestant the costs of the proceeding, or compensation out of the funds received by him from the testator, not the harsh terms of forfeiture of the entire estate. The case of In Re Vom Saal'sWill, 82 Misc. 531, 145 N.Y.S. 307, involved a proposition of similar character. Other cases, such as Donegan v. Wade, supra, involved wills containing bequests over on breach of conditional forfeitures. We think there can be no doubt that the great weight of authority is against the strict enforcement of forfeitures contained in devises and bequests. On the contrary, that when there is probabilis causa litigandi, such forfeitures will not be enforced, certainly not where there has been no devises or bequests over of the forfeited estate. This is in accord with the highest judicial authority of this country, Smithsonian Inst. v. Meech, supra; and is the rule in Virginia, Fifield v. Van Wyck, supra; and is the rule of sound reason, in our opinion, which we are disposed to adopt and apply in this case. The question remains: Was there probable cause for the Page 222 contest, and were the facts fully and fairly laid before counsel, and defendants advised by them that there was probable cause? Very able, honorable, and distinguished counsel were employed by defendants. No other evidence of this need be shown than the briefs and oral arguments presented on the hearing. Indeed the briefs and oral arguments of counsel on both sides of the case rarely have been equaled, and seldom excelled, in any cause which has been brought before us; and we are pleased to thus commend the efforts of counsel to aid the court in disposing of cases of this importance. Of course the contestants and their counsel had before them the very pertinent fact, evidenced by the oft declared purpose of the testator, prior and subsequent to the making of his will, to divide his property according to value as nearly equally as possible among his children. He had so undertaken in a prior will, made in 1916, which the evidence tends to show was obtained from the testator by his son Henry, or delivered to him, after the last will was made, and burned up by him as shown, in the presence of one or two of the other members of the family, including the widow. Pursuant to his declared purpose the testator, prior to the making of his last will, had actually given in lands or money, or both, to each of his children sums aggregating about $28,000.00. And so jealous was he of this purpose, as it seems, that some time after he made the will, according to the evidence of his son Henry, he concluded that in his gift of land to Mrs. Logan he had probably not given her as much in actual value as she was entitled to, and then gave her United States bonds, one of $1,000.00 and one of $500.00, to equalize his gift to her. He then appeared to have no favorites among his children. His favoritism appeared at no time until the day he made his last will. Then, for the first time, for some reason, not apparent, he became disposed to prefer Henry over all the rest of his children, by devising to him the choicest of all his possessions, his home farm of eighty acres, estimated to be worth from $30,000.00 to $50,000.00, including a very fine orchard of forty-eight acres, with residence, barn and out buildings, subject only to the payment of $2,000.00 to each Page 223 of his other five children, in five equal annual installments of $400.00 each, without interest, with right to immediate possession to all except the twenty-eight acres of cleared land and buildings thereon, to be occupied by the widow during her life time, and requiring him to pay her annually one-fourth of the proceeds of the orchard for her support, he to look after her and provide for her at her expense. The widow and all the other children, unless it be Mrs. Logan, were surprised and dissatisfied on account of the unequal gift to Henry; and the widow was induced to renounce the provisions of the will in her favor and take such part of the estate as she was lawfully entitled to. And there is some evidence that Mrs. Logan was also dissatisfied, until she likely concluded that her interests would be better conserved by allying herself on the side of Henry, and the prospects of getting the benefits of the forfeitures of the estates of the brother and sisters. The evidence tends to show that Henry was domineering; that he was inclined to "lord it over" his father in his life time, and the other members of the family before and after the testator's death. His mother says that such was his disposition, and that he generally got what he went after. It was not contended that the testator was not possessed of sufficient testamentary capacity at the time he made his will, but that being admittedly in a weak physical condition the night before and the day he executed the will, he must have been dominated by some outside influence to swerve him from his manifest and declared purpose before and after making the will, that his children should share equally in the distribution of his estate. That Henry was in a position to have exercised such undue influence about the time of the making of the will, was also established by the evidence; and in connection with the fact of the preference, its inconsistency with the declared purpose of the testator, and his prior and subsequent dealings with his children, counsel who advised the contest had the additional facts given them by the contestants, and shown in their testimony. The one of them who seems mainly to have conducted the contest suit and defended the present suit, went upon the witness stand and declared Page 224 under oath just what was represented to him and on what facts he relied in giving the advice he did respecting the contest. As briefly summarized and digested as we can do it, he said, in chief: All the facts adduced in evidence on the trial were known to me and my associates. In addition we were advised that Mr. Nelson A. Roberts, (who prepared the will), had told certain of the contestants that Mr. Dutterer had often expressed his intention of equalizing his property among his children, and also that Mr. Dutterer's memory was hazy and bad on the day the will was being prepared. Counsel were also informed as other witnesses had stated, that Henry Dutterer had boasted before the will was read that he knew more about the contents than any one else, also that he had told his mother, when she complained to him of the provisions made for her, that, "We thought you were getting enough," or words to that effect. They were also informed that Mr. Dutterer was at the time in a very weak physical condition, due to the character of his disease, and that he had spent a very restless night preceding the day the will was written, and that Henry had told members of the family, including Stanley, that his father had had the worst night he had ever had, and had been delirious, had gotten out of bed, and that he had had a very difficult time to get him back into bed; and with these facts and the facts testified to by the contestants on the trial, counsel had advised the contest. On Cross-Examination: Counsel said that he did not consult Mr. Dutterer's physician, for the reason that he was satisfied with the facts related by members of the family, that while Mr. Dutterer was in a weak physical condition, he was in all probability of sufficient testamentary capacity to make his will, and his opinion was that by reason of the testator's weak physical condition, and his hazy and faulty memory, it would have been an easier matter to persuade him in that condition than if he had been in perfect mental and physical condition; that he did not realize that it was necessary in contemplation of a contest to consult the testator's physician Page 225 as to his ability to resist undue influence the day following his bad night, because he knew that such facts could be established by persons other than a doctor, and that while he knew the rules of evidence relating to incompetency, he was of opinion that the essential facts could be established by competent testimony; and finally, when asked what essential facts could be so established, he replied: "The fact that Henry was of a domineering nature and had been so all his life; that he had exerted a domineering influence over his father; that his father had personally stated that he intended for his children to share equally in the property, and that the will departed from that intention in the case of Henry to the extent of thirty or thirty-five thousand dollars; the fact that Henry had had the opportunity to influence his father by spending the night with him before the will was written, and also the following night before the codicil was written; the fact that Henry wanted the Beall tract of fifty acres of land; the fact that Henry had told his mother that 'We thought' enough provision had been made for the widow; the fact that within thirty or sixty days before his death, the testator had represented to his wife his intention of equalizing all his children; the fact that we expected Mr. Nelson R. Roberts to testify that Mr. Dutterer was hazy in his memory and had him repeatedly reread certain sentences and paragraphs of the will at the time it was being prepared; the fact that we expected Mr. Nelson R. Roberts to testify that Mr. Dutterer had told him repeatedly of his intention to equalize his children; the fact that Mr. Roberts had stated that he thought the contestants were justified in contesting the will; and we also expected to be able to establish the fact that after Mr. Dutterer's death, and before the will was read, that Henry had boasted that he knew more of the will than any other person, which fact we were not permitted to prove by reason of the rulings of the court that such testimony was not admissible as against Mrs. Logan, and on the further fact that we did not expect Mrs. Logan to object to the introduction of such testimony because of her previously expressed opinion that the will should be contested. And we also expected to Page 226 prove, and we did prove that Henry had no particular affection for his father, and had expressed no affection for him, but on numerous occasions had treated his father with disrespect before his death, and that after his death he had told funny stories and made course remarks over the body of his father; and the further fact that he told one of the tenants on the day of the funeral that it was not necessary for him to stop work long enough to attend the funeral; and other facts and circumstances that could not then be recalled." The position of counsel for plaintiff seems to be that defendants were not justified in instituting a contest until they or their counsel had first pursued every avenue of information and made certain that they were in possession of sufficient competent evidence to make the result of the contest absolutely certain. We do not understand that any such rigid rule finds support in the authorities. In addition to this proposition of counsel, they argue that the forfeiture clause should be construed as a devise over to the non-contestants, and as in effect as if it read: "I give all the rest of my property to my six children (naming them); but if any of them are inclined to be dissatisfied and cause trouble in the administration of my estate, then the share of him or them, except $10.00 to each, is to go to those who are not dissatisfied and do not cause trouble;" applying the maxim,"Ut res magis valeat quam pereat." We reply, as before, that courts of equity will give the strictest construction to provisions of forfeiture in deeds and wills, and never enlarge upon them or struggle to uphold them. Craig v. Hukill, 37 W. Va. 520;Chambers v. Perrine, 81 W. Va. 321, 325;Peerless Carbon Black Co. v. Gillespie, 87 W. Va. 441; 1 Schouler on Wills, (5th ed.), 809. Besides, this maxim of the law has ample matters left to feed upon without giving the forfeiture clause any such strained construction as called for. The exception to the general rule applied here is based on the theory that the testator, by omitting all devises or bequests over, or other provisions excluding the right to contest his will for good cause, did not intend to visit upon his children any such grave consequences. This construction leaves the Page 227 maxim to apply to vexatious or unfounded litigation, and so construed the forfeiture clause will not wholly perish. For the foregoing reasons we are of opinion to reverse the decrees and to remand the causes for further proceedings. Both causes, we think, are susceptible, by proper amendments, to be converted into suits for partition among all the heirs and devisees of the lands and personal estate, and for a settlement of the accounts of the executors in accordance with the principles herein enunciated. Reversed and remanded.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3447425/	Affirming. Byan Poyner, appellant, was indicted by the grand jury of Graves county in November, 1937, for the killing of Maurice Gorrell on Sunday night, October 17, 1937. Appellant's first trial, which took place the latter part of November, 1937, resulted in a hung jury. Upon his second trial, which took place in March, 1938, he was found guilty of voluntary manslaughter and the jury fixed his punishment at confinement in the State penitentiary for 21 years. From the judgment on this verdict Poyner appeals. Reversal is urged by appellant on the following grounds: (1) All the substantive evidence to be relied upon by the Commonwealth should have been produced before the grand jury, and the appellant, Poyner, afforded an opportunity to obtain from the grand jury stenographer a copy of the transcript of the evidence. (2) Appellant's substantial rights were violated by the procedure followed by the Commonwealth's attorney in having the Commonwealth's witnesses testify at a coroner's inquest, and causing a stenographic report thereof to be prepared, and in withholding this evidence from the defendant, and in introducing before the grand jury only a part of the evidence taken at the inquest, and in referring to the evidence given at the Page 815 inquest and in not filing a transcript of the evidence so taken with the grand jury, and in using this transcript at the final trial to refresh the witnesses' memory. (3) The Commonwealth's attorney in argument made statements not supported by the evidence, and misstated the evidence of a witness to the prejudice of appellant. (4) The court erroneously permitted the Commonwealth's attorney to ask appellant why he had not testified at the coroner's inquest, and in argument to comment upon his failure to do so. (5) The court erroneously refused appellant bail after a mistrial. Poyner left Murray, Kentucky, in an automobile late Sunday afternoon, October 17th, with Myrtle Hale, Frances Odle and Rex Darnell, and drove through Mayfield toward Paducah about two miles to Jesse Miller's road house. All of the members of the party were drinking. They reached the road house about 5:30 p. m.; stayed there a while, then returned to Mayfield, where a half pint of bootleg whiskey was bought, and then went back to Miller's road house, reaching there around 7:30 p. m. Darnell seems to have remained in the car, but the others went inside. There were some 20 or more persons in the road house, and from the evidence presented most everyone there was drinking. Gorrell rode out to the road house with John McClure, a minister of the Gospel, who was working for a garage known as The Anderson Motor Company. McClure went to the road house in answer to a call to fix a flat tire on a car there. It was raining when they reached the Miller place. Gorrell started helping McClure take the tire off the wheel, but he stopped when it began raining harder and went inside. McClure testified that, after he told Gorrell that he was going to take the tire back to town to fix it, Gorrell said that he would wait for him until he came back. When the tire was fixed McClure stated that he stepped inside the road house and asked for Maurice Gorrell and that he found him in a booth on the south side of the building talking with two fellows. He told Gorrell that he had the tire fixed and that he was ready to go. McClure stated that the three stopped talking when he stepped up, and that Gorrell told him that he did not believe he Page 816 would go now, and he asked him the second time to come on, let's go." McClure testified that appellant Poyner was sitting in the booth, and that Poyner looked up at him and said, "You had better take that damn fellow with you, he might get killed at a damn place like this." McClure stated that this happened something like an hour and a half before Gorrell was stabbed. Poyner and his party and Gorrell were all in the road house for an hour or more prior to the time Gorrell was stabbed. The stabbing was done at approximately 8:30 p. m. There is evidence that Gorrell was drinking also. It is not clear how the difficulty started, but it seems that shortly before he was stabbed, Gorrell backed up against the table in the booth where the girls were sitting and exchanged some words with Myrtle Hale as she got up out of the booth to go toward Poyner, who had previously left the booth to place a nickel in the victrola. According to the testimony of McClure, and from other evidence in the record, Gorrell and Poyner had evidently had some words prior to the time Myrtle Hale left the booth. Shortly after she left the booth Gorrell took off his coat and gave it to Pete Clark, who worked as "bouncer" at the road house for Jesse Miller, and stepped out on the floor. After Myrtle Hale joined Poyner they danced around the floor and back toward where Gorrell was standing. In the meantime Poyner had asked Myrtle what Gorrell said to her and she told him to "skip it." There is strong indication that Gorrell started toward Poyner, and, according to the testimony of Poyner and other witnesses, he struck at Poyner with his fist. On this point, however, Clark, who had walked to the place where the three were, testified that he had his hand on Gorrell's shoulder and that Gorrell did not strike at Poyner. Clark stated that they were in an argument when he reached the scene. Myrtle Hale said that Gorrell struck at Poyner with his fist doubled up. Poynor said that he saw Gorrell pull out a knife and start toward him, and that he threw up his arm and knocked the lick off. At this time Poyner stuck a knife in Gorrell's abdomen just below the ribs, which stabbing resulted in Gorrell's death. No other witness testified that he saw Gorrell with a knife, and no knife was found in his clothing after the fatal stabbing. Gorrell Page 817 seems to have walked toward a door leading out of the road house and was caught by Jesse Miller. Miller and others laid him on the floor and examined his wound. He was immediately taken to the Fuller-Gillium Hospital, and, according to the testimony of Dr. Fuller, Gorrell died from the knife wound two or three minutes after reaching the hospital. Poyner and Myrtle Hale started to leave the road house immediately after Gorrell was fatally wounded, but were stopped by Jesse Miller, Pete Clark and others. Both Miller and Clark testified that they hit Poyner and knocked him and Myrtle Hale down in their efforts to stop them from getting away. The sheriff and the Commonwealth's Attorney were immediately notified, and upon their arrival Poyner was arrested and a number of the persons who were at the road house were taken into Mayfield to the court house, where a coroner's inquest was held. A transcript of the testimony given at the inquest was taken. Myrtle Hale and Frances Odle did not testify, and both were placed in jail. Poyner refused to testify at the inquest. Frances Odle got out of jail by paying a fine, and when she did so she made a statement about the stabbing of Gorrell. Myrtle Hale got out of jail the morning after she was placed there, and seems to have made a statement at that time. She was released on bond and was later indicted in the case. She was still under indictment when Poyner's last trial was held. Appellant complains bitterly of the treatment he received at the road house after he stabbed Gorrell, and of the manner in which the inquest was held. Appellant cites section 110 of the Criminal Code of Practice in support of his contention that he was entitled to a copy of the transcript of the evidence taken at the coroner's inquest Sunday night, October 17, 1937. The last sentence of section 110 reads as follows: "Any person indicted by any grand jury for any crime or misdemeanor shall have a right to procure a copy of said stenographic record or any part thereof by paying the prescribed fee for said report." He cites the case of Turk v. Martin, 232 Ky. 479,23 S.W.2d 937, in which it was held that any person indicted by a grand jury shall have a right to procure a copy of the stenographic record made before the grand Page 818 jury concerning his indictment by paying the prescribed fee for the report. No such provision is contained in section 530 of the statutes. This section reads as follows: "The coroner shall swear witnesses, and commit to writing the substance of the evidence given before such jury, designating each witness and his testimony. He shall, furthermore, recognize the witnesses examined before him to appear before the circuit court on the first day of the next term, and shall forthwith return the recognizances, with the inquest and testimony so taken, to the circuit court clerk's office of the county." It is not required by the statute that testimony taken at the inquest be turned over to the grand jury, or furnished the accused. In an affidavit for a continuance dated November 29, 1937, appellant stated that, upon the return of the indictment by the grand jury, his attorney applied to the grand jury's stenographer for a copy of the transcript of the evidence introduced before the jury pertaining to his alleged crime, and that he had received such a copy which consisted of only 13 pages. His complaint, therefore, does not fall within the realm of the case of Turk v. Martin, supra, because in that case a copy of the transcript was denied the person indicted. The question narrows down to whether or not error prejudicial to appellant was committed when only a few of the witnesses appearing at the coroner's inquest were brought before the grand jury, and that while before the grand jury they were shown, and asked and permitted to read, statements made by them at the inquest, and then asked if the statements were true, when no part of the statements made at the inquest and referred to before the grand jury were contained in the copy of the transcript of grand jury testimony which appellant's attorney was furnished. While the procedure followed on the night of October 17, 1937, at the road house following the fatal stabbing of Gorrell, and at the coroner's inquest in Mayfield, was somewhat unusual, we are constrained to conclude that no substantial right of the appellant was prejudiced in this respect. There was no duty on the Commonwealth's Attorney to present evidence to the grand jury other than that sufficient to warrant an indictment by the jury. Page 819 Appellant's second contention has been discussed, in the main, in connection with his first contention, with the exception of the action of the Commonwealth's Attorney in using the statements made at the coroner's inquest to refresh the memory of witnesses on the final trial. A review of the record reveals no prejudice to appellant's substantial rights resulted from the manner in which the Commonwealth's Attorney referred to the statements made at the coroner's inquest. See Patterson v. Commonwealth, 256 Ky. 745, 77 S.W.2d 14; Pruett v. Commonwealth, 199 Ky. 35, 250 S.W. 131; Canterberry v. Commonwealth, 222 Ky. 510, 1 S.W.2d 976. Appellant's third contention is based upon the following statement made by the Commonwealth's Attorney in his closing argument to the jury: "The witness, John McClure, told the deceased to go into the road house while he returned to town to fix the tire." From the record of McClure's testimony referred to supra, this was an erroneous statement. The statement, however, did not substantially prejudice appellant's rights, because it could not have become the basis for any argument upon which the Commonwealth's Attorney attempted to prove the guilt of appellant. Why Gorrell went in the road house, in view of all the evidence, could make little difference, because he had stayed there an hour or more on his own accord prior to the time he received his fatal wound at the hands of Poyner, who admitted sticking a knife in him. As pointed out in Drake v. Commonwealth, 263 Ky. 107, 91 S.W.2d 1009, improper arguments must be found to be not only improper, but also substantially prejudicial to the accused to warrant reversal. While the statement complained of should not have been made, we must conclude, in view of all the evidence in the case, that it was not such a statement as would prejudice the jury against appellant. The fourth contention is predicated upon the view that the court erred in permitting the Commonwealth's Attorney to ask appellant why he had not testified at the coroner's inquest, and to comment upon his failure to do so before the jury. Section 1645 of the Statutes is cited by appellant. Section 1645 provides that in all criminal and penal prosecutions the defendant on trial, on his own request, shall be allowed to testify in his own Page 820 behalf, but that his failure to do so shall not be commented upon or be allowed to create any presumption against him. There is no reference in this section to a proceeding at a coroner's inquest, which proceeding is not one that comes within the meaning of section 1645. In the case of Gray v. Commonwealth,195 Ky. 307, 242 S.W. 8, a new trial was ordered because the prosecuting attorney commented upon the failure of the defendant to testify at the trial. In this case Poyner not only testified at his trial, but admitted sticking the knife in Gorrell. The Commonwealth's Attorney's reference to Poyner's failure to testify at the coroner's inquest, therefore, could not have prejudiced Poyner's rights in any substantial manner. See McDonald v. Commonwealth, 177 Ky. 224, 197 S.W. 665; Ridner v. Commonwealth, 242 Ky. 557, 46 S.W.2d 1102. Appellant's last contention is that the court erroneously refused him bail after a mistrial at the November 1937 term of court. It appears from the record that appellant filed a motion for bail on December 17, 1937. The motion was overruled and the following order to that effect entered on December 22, 1937: "The defendant's motion for bail coming on this day to be heard and by agreement, the transcript of evidence heretofore had on the trial of this case is submitted to the Court and filed by the Commonwealth as evidence to be considered on the trial of said motion for bail and the court being sufficiently advised from said proof, overruled said motion and refused to grant bail to the defendant, Byan Poynor, to which ruling of the court said defendant excepted and prayed an appeal to the Court of Appeals which is granted." Section 16 of the Constitution provides: "All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great * * " In capital cases, therefore, the matter of bail or no bail is in the sound discretion of the court. Commonwealth v. Stahl,237 Ky. 388, 35 S.W.2d 563. It is clear from the order entered on December 22, 1937, denying appellant bail that the court acted within its sound discretion, since the transcript of evidence taken at the first trial was before the court. In any event this Page 821 did not enter into the question of whether the accused had a fair and impartial trial on his second trial. It is our view, therefore, that the court's refusal to grant bail to appellant violated no right of appellant which would warrant reversal in this case. Finding no error prejudicial to appellant's substantial rights, the judgment is affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/7433298/	Habeas corpus denied without opinion.	01-03-2023	07-29-2022
https://www.courtlistener.com/api/rest/v3/opinions/126991/	537 U.S. 1175 GARCIAv.GIURBINO, WARDEN, ET AL. No. 02-7716. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. 2 C. A. 9th Cir. Certiorari denied. Reported below: 46 Fed. Appx. 881.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3224415/	Petition of Lee Biggs for certiorari to the Court of Appeals, to review and revise the judgment and decision of that court in the case of Biggs v. State, 103 So. 706. Writ denied. ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3221460/	Upon original consideration of this cause, this court was not favored with brief for appellee. Upon application for rehearing, appellee cites section 9277, Code of 1923, as having material bearing in support of the decree of the court below. There was no intimation in the record, including the learned chancellor's opinion or in brief for appellant, concerning any application of this Code section, and this we offer as some excuse (though admittedly insufficient) for the fact that this statutory provision (a codification of the Act of 1915, p. 744) escaped our notice. The exigencies of this case do not require a determination of the full force and effect of this statute. We are persuaded, however, that its provisions are not inconsistent with the conclusion reached in the instant case. It is therein expressly provided that the statute shall "not apply whenever a nuisance results from the negligent or improper operation of any such plant, establishment or any of its appurtenances." That a smoke nuisance to complainant has been established by the evidence we think is quite clear. As indicated in the original opinion, a study of this record is rather persuasive that this nuisance and harmful damage to complainant may be abated at reasonable cost and effort on respondent's part, and for the ascertainment of the most feasible and practical method to that end, a reference to the register was suggested. We are of the opinion that under the above-quoted proviso of the statute, the continuance of the nuisance which could, by reason of modern methods or inventions and at reasonable cost, be abated, would properly be classed as "a negligent or improper operation of any such plant," and therefore without the protective feature of the statute. Such is the effect of the holding in the instant case, and the ruling is therefore not out of harmony with the statute. Under rule 38 of this court, appellee having filed no brief upon original consideration is without right to make application for rehearing. As the statute to which our attention is now directed was overlooked, and in view of the further progress of the cause, we have deemed it proper to express our views thereon. But the application for rehearing must be stricken, in view of the cited rule, and in accordance with appellant's motion to that end. Application stricken. ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3221461/	The defendant was indicted for having, with the intent to hinder, delay, or defraud the Union Fertilizer Company, a corporation who had a valid claim thereto, under a written instrument, did sell four bales of cotton, the defendant having at the time a knowledge of the existence of such claim. *Page 365 The proof of the corpus delicti included the execution of a mortgage; the raising of the cotton included in the mortgage by defendant or for him and the sale of four bales of the cotton so raised, without the consent of the mortgagee. Over the timely objection of defendant, the state was allowed to make proof of these things by a confession of defendant, without other proof having been adduced. This was error, and, if this were all, the defendant would be entitled to a reversal. 7 Ala. So. Digest, Crim. Law, 517 (4). Subsequent to the admission of the confessions of the defendant, above referred, the state proceeded to introduce independent testimony tending to prove the various statements included in the confessions of defendant. This cured the error. The appellate court will not reverse on account of the admission of confessions, unless the record affirmatively shows that there was manifest error in its admission to the injury of defendant. The admission of the evidence of the confessions was irregular, and, at the time of admission, erroneous, but does not entitle defendant to a reversal. Caraway v. State, 20 Ala. App. 362, 101 So. 912. Other questions presented are without merit. The question of the signing of the mortgage, the raising of the cotton, the ownership of same, and its sale by defendant, were all questions for the jury, fairly and fully presented to them. There is no error in the record. Let the judgment be affirmed. Affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1889388/	603 F. Supp. 847 (1985) Michael CROW, Barbara Crow, Plaintiffs, v. NEWSPAPER DEALER SUPPLY, INC., Dennis W. Ramsey, Defendants. No. 83-0986C(3). United States District Court, E.D. Missouri, E.D. February 7, 1985. 848 Martin P. Zucker, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Mo., for plaintiffs. Eric J. Snyder, St. Louis, Mo., for defendants. MEMORANDUM HUNGATE, District Judge. This matter is before the Court for a decision on the merits on the claim of plaintiffs, Michael and Barbara Crow, against defendants, Newspaper Dealer Supply, Inc., and Dennis Ramsey. Plaintiffs bring this action to recover on a promissory note executed by defendants. Defendants assert various defenses, and counterclaim for breach of contract and fraud. The Court held a nonjury trial in this cause on September 17, 1984, allowing the parties a full opportunity to present evidence. Having carefully considered the pleadings, trial testimony, exhibits, stipulations, and memoranda of the parties, and being fully advised in the premises, the Court hereby makes and enters the following findings of fact and conclusions of law. Findings of Fact 1. Plaintiffs, Michael and Barbara Crow, are citizens of the State of Illinois and residents of DuPage County, Illinois. 2. Defendant, Newspaper Dealer Supply, Inc. (Newspaper Dealer Supply), is a corporation incorporated under the laws of the State of Missouri and a resident of St. Louis County, Missouri. 3. Defendant, Dennis W. Ramsey, is a citizen of the State of Missouri and a resident of St. Louis County, Missouri. 4. Nike Plastics Company (Nike) was a manufacturer of plastic film and bags located in Missouri and employing approximately forty persons. 5. On or about July 1, 1978, Michael Crow left the employ of a company that sold plastic products similar to those manufactured by Nike, moved from Michigan to Missouri, and entered into an employment contract with Nike as a salesman and marketing specialist. 6. Jerome Stan, the president of Nike, signed the employment contract on behalf of Nike which provided for a stock purchase agreement whereby Crow could purchase up to ten shares of Nike's common stock for a total of $2,000.00 per share. 7. On or about September 25, 1978, Crow paid $7,500.00 to Nike by personal check which entitled him to three and three-quarters shares of Nike stock according 849 to the terms of the stock purchase agreement. On or about January 27, 1979, Crow paid $5,000.00 to Nike by personal check for an additional two and one-half shares of Nike stock. 8. Between July 1, 1978, and January of 1979, Crow incurred business related expenses in the amount of approximately $2,500.00 for which Nike did not reimburse him as required by the employment contract. Crow entered into an oral agreement with Stan on behalf of Nike whereby he would be entitled to one and one-quarter additional shares of stock in lieu of reimbursement. 9. At no time were stock certificates or securities issued to Crow to represent the number of shares owned by him, nor were any such certificates requested by Crow. 10. In early 1979, Dennis Ramsey was president of Newspaper Dealer Supply which was Nike's largest customer. Nike was also the sole supplier of plastic bags to Newspaper Dealer Supply. 11. Nike's financial situation deteriorated throughout 1978 on into 1979, losing money during virtually every month during that period. On occasion, customers were required to guarantee Nike's raw material purchases to insure the manufacture of products they purchased from Nike. Newspaper Dealer Supply advanced money to Nike for raw materials, outstanding bills and payroll expenses, and those amounts were credited to Newspaper Dealer Supply's account with Nike. 12. By early 1979, Nike's financial position was so poor that capital contributions had been depleted and the shareholders were no longer willing to make additional investments to keep Nike afloat. 13. In early 1979, Ramsey entered into negotiations with officers of Nike including Stan concerning the possibility of Ramsey and Newspaper Dealer Supply gaining control of Nike to keep it from closing. 14. On March 12, 1979, a meeting of members of the board of directors and shareholders of Nike was held in Chicago, Illinois, for the purpose of reorganizing Nike so that Ramsey would own one-half of all Nike shares and be elected to the board of directors. All other shareholders had agreed to reduce the number of shares they held so as to accommodate Ramsey, and in return Ramsey was to infuse capital and equipment into the faltering company. 15. According to a resolution of the board of directors dated March 13, 1979, and signed by Ramsey as a member of the board of directors, Ramsey became owner of one-half of all the outstanding shares of Nike and the amount of stock owned by Crow was reduced from seven and one-half shares to six and three-quarters shares. All the other shareholders had their shares reduced also, and none have been heard to complain. No certificates of stock were issued to Ramsey, Crow, or any of the other stockholders. 16. Between March 13 and March 30, 1979, Ramsey entered discussions with Crow regarding the possibility of purchasing Crow's stock. It was Ramsey's intent to gain control of Nike by owning more than fifty percent of the outstanding shares. 17. On March 30, 1979, Newspaper Dealer Supply, by its president, Ramsey, and by Ramsey individually, executed a promissory note payable to the order of the Crows as joint tenants with right of survivorship, in the amount of $15,000.00. 18. The note executed by the defendants recited value received and called for installment payments of $500.00 per month commencing on April 15, 1979, and continuing thereafter until the entire sum was paid in full. The promissory note provided that if any installment was not paid when due, the entire balance of the note would, without notice, become immediately due and payable at the option of the holder and would bear interest at the rate of ten percent per annum after the date of default until paid. The note further provided that if default was made and the note placed in the hands of an attorney for collection, the makers and endorsers agreed to pay a reasonable attorney's fee for such collection. 850 19. Ramsey did not make the first two payments as scheduled, and then on June 1, 1979, Crow executed a so-called stockpower to Ramsey, whereby Crow purported to sell, assign, and transfer to Ramsey all of his rights, titles, and interest in any and all of Nike stock, and thereby irrevocably constitute and appoint Ramsey attorney to transfer the said shares on the books of Nike with full power of substitution in the premises. He further agreed to cooperate and execute all corporate resolutions that required his signature to reflect corporate action taken during the time he served as an officer of Nike. Ramsey signed the document as a witness. 20. On or about June 15, 1979, defendants paid $500.00 as the first installment on the promissory note, and thereafter made no further payments, claiming that Stan would not honor the power. The Crows demanded payment from defendants on October 11, 1979, and February 28, 1980. 21. Ramsey refused to pay and announced a rescission, claiming that Crow had defrauded him, that Crow violated the contract, a failure of consideration, and that Crow failed to deliver the shares of stock contracted for. 22. After the March 13 resolution, Ramsey spent time and money in an attempt to save Nike. An account was set up whereby Ramsey and Newspaper Dealer Supply could advance funds to Nike and Ramsey could draw checks on Nike. 23. In spite of Ramsey's efforts to turn Nike around, operations ceased in 1979 and the company was later dissolved in bankruptcy. 24. It was later discovered that the corporate charter of Nike was forfeited on January 1, 1979, when, through inadvertence, the corporate attorney or officers of Nike failed to file the appropriate franchise tax forms with the State of Missouri. When Nike was so informed by the Internal Revenue Service, the necessary steps were taken to restore the corporate charter, and on March 11, 1980, the Secretary of State of Missouri certified that the forfeiture was rescinded. Conclusions of Law 1. This Court has jurisdiction over this cause pursuant to 28 U.S.C. § 1332(a)(1) as there exists complete diversity of citizenship between the parties and the amount in controversy exceeds the sum of $10,000.00 exclusive of interest and costs. 2. Where an obligee brings an action to recover on a promissory note and the note imports consideration, as in this case, and the defendants makers/obligors assert a failure or insufficiency of consideration, the burden is upon the defendants to come forward and establish their defenses "by a clear preponderance of credible evidence, and their proof must be cogent and convincing." Empire Gas Corp. v. Small's LP Gas Co., 637 S.W.2d 239, 246 (Mo.App.1982), citing Gover v. Empire Bank, 574 S.W.2d 464, 468 (Mo.App.1978). 3. The fact the physical stock certificates representing shares of stock in Nike were not issued to the plaintiffs when they paid for the shares is not dispositive of the plaintiffs' ownership of said shares. It has long been held in Missouri that a share of stock is the actual property of the shareholder, an intangible property in the nature of a chose in action; the certificate of stock is a "muniment of title." Title to the shares may exist without the stock certificate, which is only evidence of the shareholder's property interest. Duncan v. Kelly, 435 S.W.2d 29, 33 (Mo.App.1968). Kaiser v. Moulton, 631 S.W.2d 44, 48 (Mo. App.1981) (plaintiff recognized as shareholder in spite of ineffective delivery of stock certificate where corporate resolution and minutes signed by defendant showed plaintiff to be a shareholder). Plaintiffs paid $2,000.00 pursuant to a stock purchase agreement for six and one-quarter shares of stock, and there exists no conflicting claim of ownership of those shares. Accordingly, the Court finds plaintiffs held, at the least, an equitable ownership interest in those shares. 851 4. Evidence at trial supported plaintiffs' claim that Nike was indebted to them for approximately $2,500.00 in business related expenses for which the company was bound to reimburse him pursuant to the employment contract. In Missouri, shares of stock may be issued by a corporation in return for the forgiveness of a debt. Mo.Rev.Stat. § 351.160; Mo. Const. Art. XI § 7 (statutory and constitutional prohibitions of watered stock requiring shares be paid for property or services and not a loan from the issuing corporation). In this case, although no certificates were issued, plaintiffs exchanged valuable consideration for the additional one and one-quarter shares of stock. Accordingly, the Court finds plaintiffs to be the equitable owners of those shares. Kaiser, supra. The Court therefore finds the plaintiffs to have been the equitable owners of a total of seven and one-half shares of Nike stock at the time of the board of directors meeting in March. 5. The Court finds no evidence of fraud in the circumstances surrounding the March, 1979, board meeting in Chicago where the meeting was solicited by the defendants for the purpose of accommodating his wish to become a one-half owner of Nike and he signed the resolution drafted as a result of the meeting. 6. The Nike corporate resolution dated March 13, 1979, shows that the number of shares owned by plaintiffs was reduced from a total of seven and one-half shares to six and three-quarters shares, that defendants were issued fifty shares. "In the absence of fraud in the transaction, the judgment of the board of directors as to the value of the consideration received for the shares will not be interfered with." Saigh v. Busch, 403 S.W.2d 559, 564-65 (Mo.1966). The Court finds, therefore, that as a result of this meeting and resolution, plaintiffs were the owners of six and three-quarters shares of Nike stock and defendants owned fifty shares. 7. Defendants have insisted that even if plaintiffs properly owned shares of Nike stock, they violated the contract for the sale of said stock by failing to deliver the securities or certificates of said stock to defendants as required by the Missouri Uniform Commercial Code (UCC) at Mo. Rev.Stat. § 400.8-309. The Investment Securities portion of the Missouri UCC cited by defendants governs the sale and negotiability of "securities" which are instruments or writings issued in bearer or registered form commonly recognized as a medium for investment which evidences a share, participation, or other in property or an enterprise, or evidences an obligation of the issuer. Mo.Rev.Stat. § 400.8-102. This section of the UCC governing the transfer of securities instruments, legal title of such instruments, and their negotiability, is not intended to "embrace the broad field of equitable rights and interests and their methods of transfer." Duncan v. Kelly, supra, 435 S.W.2d at 29 (distinguishing between the equitable ownership of a share of stock and the transfer of legal title without delivery of a certificate under the Uniform Stock Transfer Law, the predecessor to the Securities section of the UCC); see also Mo.Rev.Stat. § 400.8-101 Missouri Code Comment. Accordingly, defendants' reliance upon the Missouri UCC Investment Securities, Mo.Rev.Stat. §§ 400.8-101 through 400.8-406, is misplaced as to matter of endorsement, delivery, breach of warranty and rescission. 8. Now that it is established that plaintiffs owned shares in Nike, the issue is whether that ownership interest was transferred to defendants in consideration for defendants' promissory note. The "stock power" or assignment executed by plaintiffs and witnessed by defendants, by its terms purports to make just such a transfer. Missouri has the view of 6 A.C.J.S., Assignments, ¶ 49, p. 664, that "any language, however informal or poorly expressed, if it shows the intention of the owner of the property or chose in action to transfer it, clearly and unconditionally, and sufficiently identifies the subject matter will be sufficient to vest the property therein in the assignee." See Halvorson 852 v. Commerce Trust Co., 222 S.W. 897, 898(1) (Mo.App.1920). Greater Kansas City Baptist and Community Hospital Association, Inc. v. Businessmen's Assurance Company, 585 S.W.2d 118, 119 (Mo.App.1979). Therefore, the Court finds that defendants received all of plaintiffs' interest in Nike in return for defendants' promissory note. Defendants' defense of insufficiency or lack of consideration must fail as value was recited and given. 9. Defendants suggest that plaintiffs' ability to sue on the note may be affected in some way by the fact that Nike's corporate charter was forfeited from January 1, 1979, until the Secretary of State rescinded the forfeiture on March 11, 1980. To the extent that the dealings of the parties in this case could have been limited by a forfeiture, Mo.Rev.Stat. § 351.540(2) provides that corporate acts during forfeiture are certified and validated upon rescission. The effect of [§ 351.540(2)] for all practical purposes is to treat the forfeiture as if it had never occurred. In plain language the amendment provides for the restoration of all corporate rights and privileges to become effective from the very date of forfeiture and all acts taken between forfeiture and rescission are confirmed and held to be valid. Thus, even though it is unlawful for persons to exercise corporate powers after a charter has been forfeited, once that forfeiture has been rescinded the legislature has forgiven the illegal use of corporate powers. A.R.D.C., Inc. v. State Farm Fire & Casualty Co., 619 S.W.2d 843, 846 (Mo.App. 1981) (footnote omitted). The forfeiture of Nike's charter in this case, therefore, has no bearing on the rights of the parties. 10. Defendants also challenge the validity of the March 12 meeting and resulting resolution. They claim that not all of the board of directors were present, some shareholders were not notified, that only the new directors signed the resolution, and the meeting itself was improperly held outside the State of Missouri. However, the meeting was not held outside of Missouri to inconvenience the defendants, defendants sought the meeting itself, the purpose of the meeting was to accommodate defendants' ownership goals, all other shareholders agreed to reduce their shares in reliance upon defendants' assurances that he would help Nike survive, defendants signed the resolution as a member of the board of directors, and none of the other shareholders or board members are heard to complain. Even if defendants have the standing to raise these issues on behalf of others, the Court finds the defendants estopped to complain of these actions taken by Nike at his urging and with his full cooperation where plaintiffs have relied on same and as a result ended up owning fewer shares of stock and the company is now out of business. See Central Microfilm Service Corp. v. Basic/Four Corp., 688 F.2d 1206, 1218 (8th Cir.1982), cert. denied, 459 U.S. 1204, 103 S. Ct. 1191, 75 L. Ed. 2d 436 (1983) ("The Missouri cases consistently construe an estoppel claim to have three elements: (1) an act or statement inconsistent with the right later asserted; (2) reliance on such act or statement; and (3) injury.") 11. After careful consideration of the entire record, the Court concludes that plaintiffs did own shares of Nike stock and those shares were transferred to defendants as consideration for defendants' promissory note. For the reasons discussed above, judgment will be entered for plaintiffs and a reasonable attorney's fee, plus prejudgment interest at the rate of ten percent per annum from July 15, 1979, will be awarded to plaintiffs as agreed by the parties in the promissory note. JUDGMENT In accordance with the memorandum opinion of the Court filed this day, which is incorporated into and made a part of this judgment, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment be and the same is entered in favor of 853 plaintiffs, Michael and Barbara Crow, and against defendants, Newspaper Dealer Supply, Inc., and Dennis W. Ramsey, in the amount of $14,500.00, plus prejudgment interest thereon at the rate of ten percent per annum from July 15, 1979, a reasonable attorney's fee, and costs. IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that, within ten days, defendants shall respond to plaintiffs' affidavit for attorney's fees, filed as plaintiffs' exhibit 9 at trial.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3224227/	The appeal is by a married woman to review a decree denying relief on her bill seeking to set aside and annul a mortgage executed by her. The case does not fall within the purview of the statute (section 6138 of the Code), which provides that a married woman may, without giving security for costs, appeal from any judgment, order, or decree of any court of record subjecting any of her property to sale, etc., nor within any other provisions of that section. The court is, therefore, of opinion that appellee's motion to dismiss the appeal must be granted. Ex parte Johns, 209 Ala. 638, 96 So. 888. Appeal dismissed. ANDERSON, C. J., and SAYRE, GARDNER, and BOULDIN, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2897843/	NO. 07-07-0496-CR Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 07-07-0497-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JANUARY 22, 2008 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ______________________________ VICTOR TYRONE APLON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY; NO. 87672, 88596; HONORABLE JOHN STEVENS, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION Â Â Â Â Â Â Â Â Â Â Â Â Appellant Victor T. Aplon, acting pro se, filed a document with this Court on December 17, 2007, entitled âPetition for Acquittal and Arrest of Judgment.â Finding reason to doubt our jurisdiction over the matters addressed in appellantâs âpetition,â we requested by letter dated December 21 that he file any documents considered necessary for the Court to determine our jurisdiction. Â Â Â Â Â Â Â Â Â Â On January 10, 2008, in response to our letter, appellant filed a document entitled âDetermination of Jurisdiction Petitionâ in which he references various appellate rules that he contends confer jurisdiction on this Court. As we read his documents, appellant raises issues in connection with his convictions and resulting sentences in a district court of Jefferson County. The documents reference two causes in the Criminal District Court of Jefferson County, and recite that appellant appealed from the judgments to the Ninth Court of Appeals. Â Â Â Â Â Â Â Â Â Â In support of this Courtâs jurisdiction, appellant quotes several of the Texas Rules of Appellate Procedure. Those Rules establish procedures, not the jurisdiction of the appellate courts. Bayless v. State, 91 S.W.3d 801, 805 (Tex.Crim.App. 2002). This courtâs appellate jurisdiction generally is limited to cases appealed from trial courts in our court of appeals district, which does not include Jefferson County. Tex. Govât Code Ann. Â§ 22.201 (Vernon 2004). We see no basis for jurisdiction over appeal of appellantâs Jefferson County convictions, and nothing in the documents appellant has filed demonstrates we otherwise have authority to grant any relief he seeks. See Olivo v. State, 918 S.W.2d 519, 522-23 (Tex.Crim.App. 1996) (listing Government Code Â§ 22.201 among examples of laws that establish jurisdiction of courts of appeals). Â Â Â Â Â Â Â Â Â Â Appellantâs documents indirectly refer to Rule 17.1 of the Rules of Appellate Procedure, which concerns instances in which a court of appeals is unable to take immediate action, and directly refer to Rule 17.2, which provides for action by âthe nearest court of appeals that is able to take immediate action.â Tex. R. App. P. 17.1, 17.2. Appellant appears to contend that the rule applies here. Appellantâs petitions discuss actions taken by the Ninth Court of Appeals, which demonstrates conclusively that Rule 17 of the appellate rules has no application here. Â Â Â Â Â Â Â Â Â Â Appellant mentions in his response to our December 21 letter that the Ninth Court of Appeals âhas sent other casesâ to this Court. That is true, but cases are transferred to this Court from other courts of appeals pursuant to statute and by order of the Supreme Court of Texas, not by action of the appellant. Tex. Govât Code Ann. Â§ 22.220 (Vernon 2004); Tex. Govât Code Ann. Â§ 73.001 (Vernon 2005). We take judicial notice that appellantâs appeals from his Jefferson County convictions mentioned in his documents have not been transferred to this Court. Â Â Â Â Â Â Â Â Â Â Finding we lack jurisdiction to address appellantâs pleadings, we dismiss his attempted appeals. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Do not publish. e" Name="Colorful List Accent 5"/> 07-11-0252-CR Â IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS Â AT AMARILLO Â PANEL E Â JULY 26, 2011 Â ______________________________ Â Â MICHAEL WAYNE PARRISH, APPELLANT Â V. Â THE STATE OF TEXAS, APPELLEE Â Â _________________________________ Â FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; Â NO. 21,891-B; HONORABLE JOHN B. BOARD, JUDGE Â _______________________________ Â Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.[1] MEMORANDUM OPINION Pursuant to a plea bargain, Appellant, Michael Wayne Parrish, was convicted of assault on a public servant[2] and sentenced to four years confinement.Â The Trial Court's Certification of Defendant's Right to Appeal indicates that Appellant's case was a plea-bargain case with no right of appeal and that Appellant waived his right of appeal. Â Â Â Â Â Â Â Â Â Â Â By letter dated June 30, 2011, this Court notified Appellant's appointed counsel of the consequences of the certification and invited him to either file an amended certification showing a right of appeal or demonstrate other grounds for continuing the appeal on or before July 15, 2011.Â Counsel was also notified that failure to do so might result in dismissal of the appeal pursuant to Rule 25.2 of the Texas Rules of Appellate Procedure.Â Counsel did not respond to this Court's notice. Â Â Â Â Â Â Â Â Â Â Â Because neither an amended certification reflecting a right of appeal was filed nor good cause for continuing the appeal provided, this appeal is dismissed based on the certification signed by the trial court.Â See Tex. R. App. P. 25.2(d). Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Patrick A. Pirtle Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Â Do not publish. Â [1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.Â Tex. Gov't Code Ann. Â§ 75.002(a)(1) (West 2005). Â [2]Tex. Penal Code Ann. Â§ 22.01(b)(1) (West 2011).	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/127049/	537 U.S. 1179 JACKSON, WARDENv.LYONS. No. 02-807. Supreme Court of United States. January 27, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 2 C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 299 F. 3d 588.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3453044/	Reversing. Prior to October 17, 1921, the appellant and defendant below, W.C. Morris, operated a garage in the city of Bowling Green, Kentucky, and was also local agent for the sale of Hupmobile and Stutz automobiles. On that day he sold his business, with all stock and fixtures on hand, to appellee and plaintiff below, J.S. Gilliam. The contract was in writing and the price agreed to be paid was the amount of the invoice of the stock, plus carriage, and a stipulated sum for two new Hupmobiles owned by plaintiff and which were in his garage, the total purchase price amounting to slightly more than $6,000.00. The contract also included the sale of defendant's local agency for the two above makes of automobiles, the most valued of which was the agency for the Hupmobile, and which plaintiff averred and testified was the chief inducement for the purchase. After the written contract had been executed the parties went to the city of Louisville and had the state distributor of local agencies for the two automobiles to transfer the Bowling Green agency to plaintiff, which was done in writing. In it there was a stipulation that it might be cancelled at any time by giving notice. Plaintiff put in charge of the business his two sons and he immediately went to Florida, where he spent the winter and returned early in the spring of 1922. In the meantime, only two or three Hupmobiles had been sold by plaintiff's sons, who were operating the local agency at Bowling Green, and the state distributor for that machine, who was nothing more than the state agent for its sale, became dissatisfied and so notified plaintiff, and soon thereafter Mr. Boyd, president and manager of the state agency, went to Bowling Green and cancelled plaintiff's agency contract for the sale of Hupmobiles at that place and in that territory, and placed it with another under the same character of contract, all of which occurred about April 1, 1922. That person proved to be unsatisfactory and Boyd approached plaintiff to accept the agency. After considerable persuasion he agreed to do so, and this equity action was thereafter filed against him by plaintiff seeking to reform the contract of sale to him of the garage and of the local agency, by inserting therein by parol proof a stipulation that defendant was "not to in any way interfere or engage in this business during the time that plaintiff was engaged therein," which it was averred was omitted from the contract "by Page 765 oversight and mistake." It was further averred in the petition that defendant had violated the contract as made and as sought to be reformed, by reason of which plaintiff sustained damages in the sum of $4,000.00, for which he prayed judgment. The answer denied the material averments of the petition, and upon submission, after evidence taken, the court did not expressly order a reformation of the contract, but did so in effect by rendering judgment in favor of plaintiff in the sum of $2,100.00, and complaining of it defendant prosecutes this appeal. It is the universal rule, consistently followed by this court, that in order to obtain a reformation of an executed written contract on the ground of mistake it must be a mutual one and not a mistake of one of the parties alone, and the pleading seeking the reformation must so allege, either expressly, or aver facts from which the mutuality of the mistake is necessarily inferable. Pickrell and Craig Co. v. Castleman Blakemore Co., 174 Ky. 1; Stark v. Suttle, 181 Ky. 646; Commercial Auto v. Brandies Machinery and Supply Co.,198 Ky. 155; and Denny v. Crabtree, 194 Ky. 185. There was no such express averment contained in any of plaintiff's pleadings and it is doubtful if such mutuality of the alleged mistake was necessarily inferable from the allegations as made. But, however that may be, the rule is equally universal that in order to reform such a contract the proof must be clear,convincing and satisfactory that the mutual mistake was in fact made before a court will reform the contract. That rule is stated as the correct one by all text writers upon the subject, as well as approved and applied by all courts, including this one. Cook v. Day, 168 Ky. 282; Johnson v. Gadberry, 174 Ky. 66; Central Life Insurance Co. v. Robinson, 181 Ky. 511; Nichols v. Nichols, 182 Ky. 21; Hauger v. International Trading Co.,184 Ky. 798; Foxwell v. Justice, 191 Ky. 754; Farar v. Eli, 195 Ky. 31; Slater v. Hatfield, 195 Ky. 281, and Karr v. Pearl, 212 Ky. 387. See also Caldwell's Kentucky Law Dictionary, vol. 6, pages 235-9. In the cases of Littoral v. Bevins, 185 Ky. 514; Lamastus v. Morgan's Committee, 178 Ky. 805; Atha v. Webster, 181 Ky. 581, and Johnson v. Elkhorn Gas, Coal and Mining Co., 193 Ky. 585, the rule was announced that a mere preponderance of evidence is not enough to authorize the reformation of an executed written contract, and that before a court will do so the proof should be "clear and convincing, or such as to establish the fraud Page 766 or mistake beyond reasonable controversy." In this case defendant denied any such mistake, as well as denied the agreement sought to be interpolated into the contract by the reformation sought by the petition, although plaintiff testified to such facts. The other witnesses introduced by each side at least balanced each other, if, indeed, it did not preponderate in favor of defendant. So that, if for no other reason, the proof was insufficient, under the prevailing rule,supra, to authorize the judgment. Independently, however, of that objection, it uncontradictedly appeared in the case that plaintiff knew that the Hupmobile agency which he purchased was subject to cancellation by the state distributor at any time. He also testified that it was the chief consideration for him entering into the contract. Furthermore, the alleged omitted part of the contract (and which the reformation sought to insert therein and without which plaintiff would have no cause of action whatever) was that defendant "would not engage in this business in this city and would not in any way interfere with, or himself take the agency of said Hupmobile automobile so long as this plaintiff desired to remain in said business," i. e., as local agent for the sale of Hupmobiles. His desire to remain in that business was dependent entirely upon the will of the state distributor under whom he was employed, and when they or it withdrew consent by cancelling his agency, such cancellation necessarily terminated his right to continue "in said business." It did so happen in this case, and when defendant accepted the agency on July 1, 1922, plaintiff was no longer engaged in that business and had not been since about April 1, prior thereto. So that, there was no violation of defendant's contract, even if it had been made as plaintiff contends and had been properly proven to have been omitted from the writing by mutual mistake. It is said, however, that defendant procured such cancellation; but the evidence fails to establish that fact, since both he and Boyd not only testified to the contrary, but they each also stated that defendant reluctantly accepted the agency when tendered to him, and that he was beseeched to do so because he had made a success of it when he formerly operated it, and the state distributor procured him to do so for purely business reasons. The distributor had the right to do so and plaintiff can not *Page 767 maintain this action against defendant because that right was exercised. For the reasons stated, the judgment is reversed, with directions to set it aside and to dismiss the petition.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2897636/	NO. 07-08-0076-CR Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â NO. 07-08-0077-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B MARCH 4, 2008 ______________________________ ARNALDO ORTIZ, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant v. THE STATE OF TEXAS, Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee _________________________________ FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY; NOS. 10,937 and NO. 11,009; HON. DAN MIKE BYRD, PRESIDING _______________________________ Abatement and Remand _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Â Â Â Â Â Â Â Â Â Â Arnaldo Ortiz (appellant) filed notices of appeal from his two convictions of aggravated sexual assault on January 15, 2008. On the same day, the trial court filed its certification representing that appellant has the right of appeal in both cases. However, the appellate record reflects that appellant failed to sign the certifications pursuant to Texas Rule of Appellate Procedure 25.2(d) which requires the certifications to be signed by appellant and a copy served on him. Â Â Â Â Â Â Â Â Â Â Consequently, we abate the appeals and remand the causes to the 46th District Court of Wilbarger County (trial court) for further proceedings. Upon remand, the trial court shall take such action necessary to secure and file with this court certificates of right to appeal that comply with Texas Rule of Appellate Procedure 25.2(d) by April 3, 2008. Should additional time be needed to perform these tasks, the trial court may request the same on or before April 3, 2008. Â Â Â Â Â Â Â Â Â Â It is so ordered. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Per Curiam Â Do not publish. Â Â Â Â Â Â Â eption Locked="false" Priority="73" SemiHidden="false" UnhideWhenUsed="false" Name="Colorful Grid Accent 1"/> NO. 07-09-00367-CR; 07-09-00368-CR Â IN THE COURT OF APPEALS Â FOR THE SEVENTH DISTRICT OF TEXAS Â AT AMARILLO Â PANEL B Â NOVEMBER 4, 2010 Â Â EX PARTE ALBERT V. JESSEP Â Â FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; Â NO. 51,224-A, 51-225-A; HONORABLE HAL MINER, JUDGE Â Â Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Â Â MEMORANDUM OPINION Â Â Â Â Â Â Â Â Â Â Â Â Appellant Albert V. Jessep appeals from the trial court's order denying the relief requested in his subsequent application for writ of habeas corpus, filed under article 11.072 of the Code of Criminal Procedure. Â We affirm. Background Jessep=s computer was seized by peace officers while it was being repaired at an Amarillo computer shop.Â The computer=s hard drive contained pornographic images involving children.Â By two July 2005 indictments, he was charged with two possession of child pornography offenses.[1]Â Â In April 2006, Jessep, represented by retained counsel, plead guilty to each offense.Â The trial court deferred adjudication of his guilt and placed him on community supervision for a period of five years. Jessep filed notice of appeal in both cases.Â We dismissed his appeals because the trial court=s certifications under Rule of Appellate Procedure 25.2 stated he had no right of appeal and the record supported the certifications.Â Jessup v. State, No. 07-06-0242-CR, 07-06-0243-CR, 2006 WL 2660776 (Tex.App.BAmarillo Sept. 15, 2006, pet. ref=d) (mem. op., not designated for publication).[2]Â Jessep then filed pro se applications for writs of habeas corpus alleging deficiencies in the indictments and alleging ineffective assistance of counsel.Â The trial court denied his applications, and we affirmed the trial courtÂs denial order. Â Ex Parte Jessep, 281 S.W.3d 675 (Tex.App.ÂAmarillo 2009, pet. refÂd). In October 2009, Jessep filed a subsequent writ of habeas corpus alleging four grounds. The trial court considered and denied JessepÂs writ.Â This appeal followed. Standard of ReviewÂ Â Â Â Â Â Â Â Â Â Â Â Article 11.072 of the Code of Criminal Procedure provides an opportunity for habeas corpus relief for defendants seeking relief from an order or a judgment of conviction ordering community supervision. Â Tex. Code Crim. Proc. Ann. art. 11.072, Â§ 1 (Vernon 2005); Ex parte Cummins, 169 S.W.3d 752, 756 (Tex. App.--Fort Worth 2005, no pet.). To prevail on a writ of habeas corpus, the proponent must prove his allegations by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995), cert. denied, 518 U.S. 1021, 116 S. Ct. 2556, 135 L. Ed. 2d 1074 (1996). If the trial court denies the application in whole or in part, the applicant may appeal under article 44.02 and rule 31 of the Texas Rules of Appellate Procedure. Â Tex. Code Crim. Proc. Ann. art. 11.072, Â§ 8; Ex parte Villanueva, 252 S.W.3d 391, 396-97 (Tex.Crim.App.2008). In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling and, absent an abuse of discretion, uphold the ruling. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007); Ex parte Twine, 111 S.W.3d 664, 665 (Tex. App.--Fort Worth 2003, pet. ref'd). Â Â Â Â Â Â Â Â Â Â Â When, like here, an applicant files a subsequent application for a writ of habeas corpus after final disposition of an initial application under article 11.072, the court may not consider the merits of or grant relief on the subsequent application unless it Âcontains specific facts establishing that the current claims and issues have not been and could not have been presentedÂ in the initial application, Âbecause the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.Â Tex. Code Crim. Proc. Ann. art. 11.072, Â§ 9(a) (Vernon 2005). Â A claimÂs Âlegal basisÂ is unavailable if it Âwas not recognized by and could not have been reasonably formulated from a final decisionÂ of a federal or Texas appellate court at the time the previous application was filed. Â Id. Â§ 9(b). Â The factual basis of a claim is unavailable if it was not then ascertainable through the exercise of reasonable diligence. Id. Â§ 9(c). Application JessepÂs initial application for writ of habeas corpus challenged the sufficiency of the evidence supporting his prosecution and a claim of ineffective assistance of his retained counsel, both grounds being based on perceived defects in his indictments.Â 281 S.W.3d at 678.Â Addressing his contentions, we noted the general precept that challenges to the legal sufficiency of evidence supporting an underlying conviction are not cognizable in habeas corpus proceedings.Â Id. at 679, citing, inter alia, Ex parte Santana, 227 S.W.3d 700, 705 (Tex.Crim.App. 2007).Â We noted also that the rule has exceptions, including those in which an Âactual innocenceÂ claim is presented.Â Id. at 680, citing, inter alia, Ex parte Sparks, 206 S.W.3d 680, 683 (Tex.Crim.App. 2006).Â We then held that Jessep had not presented an actual innocence claim, and thus applied the general rule, finding his claims of the legal insufficiency of the evidence not cognizable in his habeas corpus proceeding.[3]Â Id. By his subsequent application, through his grounds two and four, Jessep attempts now to assert an actual innocence claim.Â Cognizant he must demonstrate that the basis of such a claim was unavailable to him when he filed his initial application, Jessep contends, via ground three, that the reporterÂs record from his original plea hearing was not included in the record of his initial application, despite his requests that it be included, thus preventing presentation of his claim.Â For purposes of addressing JessepÂs contention, we will assume, without so holding, that a deficiency in the record can make the factual basis of a claim unavailable for purposes of Â§ 9(c) of art. 11.072.Â We thus consider the merits of JessepÂs contentions.Â The reporterÂs record from the April 17, 2006 plea hearing is appended to JessepÂs subsequent habeas corpus application.Â It forms the basis for his contention he has demonstrated a complete absence of evidence to support his guilty plea.Â Beginning his analysis with article 1.15 and its requirement that the State produce evidence to support a plea of guilty, Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005), Jessep contends the trial court heard no evidence to support his plea.Â Jessep limits his analysis to the information the court heard from an informal stipulation.Â Toward the end of the plea colloquy, the trial court asked the prosecutor to briefly state Âthe facts.ÂÂ The prosecutor recited that Âsome imagesÂ were found on JessepÂs computer at a repair shop.Â Police were called, and took the computer.Â The ÂimagesÂ included those of children under the age of fourteen.Â After hearing Jessep affirm he had heard the prosecutorÂs brief recitation, the court asked, ÂIs that what happened?Â Jessep answered the court affirmatively.Â Â Â JessepÂs contentions in his subsequent application, and here on appeal, ignore the instruments he signed at the plea hearing, which includes his court-acceptedÂ written judicial confession.[4]Â Even assuming the trial court was authorized under Â§ 9(c) of article 11.072 to grant relief under JessepÂs attempted actual innocence claim, we find the court did not abuse its discretion by denying relief.Â The evidence the court had before it at the plea hearing met the requirements of the deferred adjudication statute to Âsubstantiate the defendantÂs guilt.ÂÂ Tex. Code Crim. Proc. Ann. art. 42.12 Â§ 5 (Vernon 2008); see Donovan, 68 S.W.3d at 636 (describing effects of deferral of adjudication); Labib v. State, 239 S.W.3d 322, 329-30 (Tex.App.ÂHouston [1st Dist.] 2007, no pet.) (same).Â The habeas record before the court in no way established JessepÂs actual innocence. By his fourth claim, Jessep also advances the contentions he was ineffective acting as his own counsel in his initial habeas corpus proceeding, and the trial court should have informed him of his right to counsel in that proceeding. Â The contentions are misguided.Â Outside of death penalty cases, in Texas there is no constitutional or statutory right to counsel in habeas corpus proceedings.Â See, e.g., Coleman v. Thompson, 501 U.S. 722, 754, 111 S.Ct. 2546, 115 L. Ed. 2d 640 (1991); Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001), cert. denied 534 U.S. 1163, 122 S.Ct. 1175, 152 L. Ed. 2d 118 (2002); Ex parte Graves, 70 S.W.3d 103, 113 (Tex.Crim.App. 2002); Cf. Tex. Code Crim. Proc. Ann. art. 11.071 Â§ 2 (Vernon 2007) (counsel for habeas corpus applicant seeking relief from judgment imposing death penalty).Â It follows there is no right to constitutionally effective counsel.Â Graves, 70 S.W.3d at 111.Â As we read it, the first ground asserted in JessepÂs subsequent application is a complaint about the time of the trial courtÂs handling of his initial application.Â The complaint is moot.Â This courtÂs mandate affirming the trial courtÂs denial of the initial application was issued on February 12, 2007.Â We find the trial court did not abuse its discretion by denying JessepÂs subsequent application for writ of habeas corpus.Â Â We overrule each of JessepÂs issues and affirm the trial courtÂs order denying habeas relief. We have carried with the appeal two motions filed by Jessep, one regarding his request for grand jury materials, the other requesting abatement of the appeal and remand to the trial court.Â Both are overruled. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Do not publish.Â Â Â Â Â Â Â Â [1] See Tex. Penal Code Ann. ' 43.26 (Vernon 2003).Â This is a third degree felony punishable by imprisonment for any term of not more than ten years or less than two years and a fine not to exceed $10,000.Â Tex. Penal Code Ann. ' 12.34 (Vernon 2003). [2] Appellant=s last name was spelled AJessup@ in the orders from which he appealed. [3] We remain aware that the adjudication of JessepÂs guilt was deferred.Â By addressing his contentions regarding the sufficiency of the evidence, we do not intend any general comment on evidentiary sufficiency challenges in deferred adjudication cases.Â Jessep has not been convicted of the offense to which he plead guilty.Â See Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002) (contrasting deferred adjudication and regular community supervision).Â [4] We take judicial notice of the contents of the clerkÂs record in our file on appellantÂs direct appeals, No. 07-06-0242-CR and No. 07-06-0243-CR. See Tex. R. Evid. 201 (judicial notice). Â In addition to showing the courtÂs acceptance of his written judicial confession, the plea papers include the trial courtÂs approval of his waiver of rights and his consent to stipulations of evidence. Â JessepÂs written judicial confession includes his statements that he had read the indictment filed in the case and that he Âcommitted each and every allegation it contains.ÂÂ See Menefee v. State, 287 S.W.3d 9 (Tex.Crim.App. 2009) (addressing satisfaction of article 1.15Âs requirements).	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/3819543/	This action was commenced in the district court of Oklahoma county by J.W. Clements, defendant in error, plaintiff below, against the American Oil Refining Company, a corporation, and Oklahoma Oil Securities Company, a corporation, plaintiffs in error, defendants below, for the recovery of $3,800, claimed to be due him as a commission for the sale of capital stock of the American Oil Refining Company. The parties will be referred to as plaintiff and defendants, as they appeared in the lower court. The petition alleges that the defendants are domestic corporations with principal places of business at Oklahoma City; that during the month of February, 1917, the plaintiff was employed by the defendants to secure subscriptions for the capital stock of the American Oil Refining Company, and that, under the terms of the plaintiff's contract with the defendants, he was to receive a commission of ten cents per share of all stock subscriptions he was able to procure; that on or about the 27th day of March, 1917, he procured the subscription for said stock to the amount of 38,000 shares from C.L. JoHansen, and that said stock reservations, or orders, were made in conformity with the terms of defendants' instructions to plaintiff and under his agreement with them. There was attached to said petition as exhibit a true copy of one of the reservation blanks, which was executed by the said C.L. JoHansen, by the terms of which he applied for stock in the said corporation in amounts none less than 500 shares and none more than 5,000 shares, aggregating the total of 38,000 shares; that plaintiff tendered the said reservation orders to defendants together with ten cents per share, being the first down payment, and demanded that he be paid his commission of ten cents per share, as provided by his agreement with the defendants; that defendants refused to accept the applications of the said C.L. JoHansen, without cause, and declined and refused to pay this plaintiff his commission due, under the terms of his said employment, amounting to $3,800, or to issue or reserve said stock, and prayed judgment for $3,800, together with costs of the action. Page 205 To a better and fuller understanding of the case we set forth in full exhibit "A," found at pages 6 and 7 of the case-made, which is as follows, to wit: "Stock Reservation Order. "Dated at Durant 3-27-1917. "Oklahoma Oil Securities Co., "Oklahoma City. Oklahoma. "Gentlemen: "I hereby reserve 50 shares of the stock in the American Oil Refining Company at $1.25 per share, I am handing you herewith $50 which is 10 cents per share. "I agree to pay the remaining $1.15 per share provided the American Oil Refining Company drills in two producing wells within ninety days from the date hereof: "It is undertood that these wells shall each produce one hundred barrels of oil or 10,000,000 cubic feet of gas per day. "It is further understood that the company now has two producing wells and that the two to be drilled in will make four producing wells before I owe any more on this reservation. "In the event that the company fails to drill in two additional producing wells as above stated within ninety days from the date hereof the 10 cents per share that I am paying herewith shall be refunded to me. "It is agreed that I am to have two options of paying the $1.15 per share above referred to: First. I can pay all cash and settle in full for $1.10 per share, or I can pay 15 cents per share within ten days after the second of the two wells shall have been drilled in and 25 cents per share each thirty days thereafter until the full amount shall have been paid. "It is understood and agreed that I am to pay no interest on the deferred payments on this contract. "The stock certificate for the number of shares shall be full paid and nonassessable and shall be issued to me as soon as I have completed all payments for same. "It is understood that my stock shall entitle me to a full pro rata interest in everything that the company now owns or may ever own. "This contract contains all the conditions of the sale. "(Signed) S.L. JoHansen, "Town, Durant, Okla. "Box 342. "Witness "J.W. Clements "Representative." To the above petition defendants filed their joint answer, denying all allegations not admitted, and denied that plaintiff was employed by the American Oil Refining Company to secure subscriptions for its capital stock, or for any purpose, but admit that he was so employed by the Oklahoma Oil Securities Company and that all transactions had by plaintiff, with reference to stock, occurred between plaintiff and the Oklahoma Oil Securities Company; that all the capital stock of the American Oil Refining Company, mentioned in the petition, was offered for subscription and sale by said Oklahoma Oil Securities Company, and that plaintiff's connection with such subscription was as agent of the Oklahoma Oil Securities Company and was in pursuance of an arrangement and understanding between the two defendants, by the terms of which the American Oil Refining Company reserved the right to reject subscriptions, of which plaintiff had knowledge and under which it was its right and privilege to reject the subscription, mentioned in plaintiff's petition, and that in the exercise of such right it did reject the same, and that under such arrangement between the defendants only a limited amount of the capital stock of the American Oil Refining Company was available for disposal, under the reservation subscriptions mentioned in the petition, of which the plaintiff had knowledge; and the alleged subscription of 38,000 shares was in excess of the stock so available, and the American Oil Refining Company refused to furnish the same for that, as well as other good and sufficient reasons; that the alleged subscriptions to the capital stock and the payment thereon were not made, as alleged in said petition, or at all; that the alleged subscriber paid nothing at all on said subscription and was not able, ready, and willing' to make payments for such stock, or responsible for such payments, according to the terms of subscription contract, and that said subscription and payment were subterfuges, by which plaintiff sought to secure said 38,000 shares of stock without payment therefor, to the end that they might subsequently sell the same in violation of the good faith due from said plaintiff to his said employer, and prayed that the case may be dismissed. Plaintiff filed reply by way of general denial. The cause was tried to a jury and at the close of plaintiff's testimony defendants demurred to the evidence, especially as to the liability of the American Oil Refining Company. The demurrer was overruled and exceptions saved. The trial resulted in a verdict in favor of the plaintiff in the sum of $3,800, with interest at the rate of six per cent. per annum from April 1, 1917. A motion for new trial was filed by defendants, Page 206 presented and overruled; exceptions saved. Judgment was pronounced upon the verdict of the jury in the sum of $2,610, principal and interest, with interest at the rate of six per cent. per annum from the 20th day of October, 1920, from which judgment this cause comes regularly on appeal by the defendants to this court. The attorneys for defendants set up five assignments of error, but choose to submit their argument under three separate and distinct heads, which are as follows: "I. The court erred in overruling the demurrer of the American Oil and Refining Company at the close of plaintiff's case. "II. The check sent by the plaintiff and rejected by the Oil Securities Company did not constitute a payment on said stock and the Oil Securities Company had a right to reject same. "III. The court erred in refusing instructions requested by the defendants. The defendants requested the court to instruct the jury as follows, which was refused by the court. "The court instructs the jury that the 10 cents per share to be collected by the plaintiff as the agent of the defendant on his subscriptions for stock would become and be the property of the defendants, and the plaintiff would have no interest whatever in it, and unless expressly authorized he would have no authority to accept anything but lawful money in payment of it. "Requested by defendants, refused by the court and excepted to by the defendants. "Geo. W. Clark, Judge." The first proposition urged by attorneys for defendants is that the court erred in overruling the demurrer to the American Oil Refining Company at the close of the plaintiff's case. It will be necessary in passing upon this assignment of error to examine the testimony in this case. The defendant the American Oil Refining Company had an authorized capital stock of 1,000,000 shares of the value of one dollar per share. 500,000 shares had been set aside as treasury stock. This treasury stock it determined to place upon the market and made an oral contract with Stanley H. Watson to take over the sale of said stock, but it was afterwards determined to organize the Oklahoma Oil Securities Company to take over the contract of Watson, and the purpose of the organization of the Oklahoma Oil Securities Company was to take over the contract of Watson and to sell this treasury stock as agent, trustee, or broker, and this was the only business it ever did transact, and the officers of the two defendant companies were the same, having the same telephones, and, as testified to by the president of the two companies, W.D. Skirvin, that he had supervisory power of all business of both corporations, paid the office rent and expenses of the office at the beginning, and maintained his office with the manager of the Oklahoma Oil Securities Company, and was advised of every transaction connected therewith and advised and controlled the manager and knew all that was going on in this office. Stanley H. Watson was the first manager and upon his death he was succeeded by N.A. Clay as manager, who was employed by W.D. Skirvin, the president of both companies, and all the matters and things connected with this cause of action transpired while N.A. Clay was acting as manager of said Oklahoma Oil Securities Company. It became necessary to appoint and authorize agents to put on the campaign of selling this stock as neither of the defendants acted in the matter except through these several agents. The plaintiff in this action became connected with the sales of stock by first purchasing 100 shares of this stock from O.L. Perry, one of the agents for the sale of the stock, who furnished him some blank applications to take subscriptions for reservations of said stock. Plaintiff obtained some subscriptions upon these blanks furnished, which he sent in to the defendant Oklahoma Oil Securities Company, which subscriptions were accepted by the company and commissions paid of ten cents for each share of stock, for which the subscriber was to pay $1.25 in payments, as heretofore set forth in this opinion in the form of stock reservation orders, and upon the conditions mentioned in said stock reservation order. Upon receipt of these reservation orders, sent in by plaintiff, the manager, N.A. Clay, wrote letters of commendation to the plaintiff, urging him to proceed with the sale of the stock, and on February 24, 1917, he wrote plaintiff the following letter: "Oklahoma Oil Securities Company. "Incorporated. "Skirvin Building. "Stanley H. Watson, Member, "Manager Oklahoma Oil Exchange. "Oklahoma City, Oklahoma. "February twenty-fourth, "1917. "Mr. J.W. Clements, "Marietta, Okla. "Dear Mr. Clements: "We are surprised to hear this morning that you had not received our letter confirming our agreement to accept five hundred shares of stock from you and to allow you as commission thereon, 10 cents per share. "At the same time to the same place, we Page 207 forwarded you some literature. We are duplicating this supply today and are sending you same under separate cover to Marietta. "Will you please let us know by phone if they fail to reach you. "This will be an authority for you to accept contracts on this reservation plan, until such a time that you may be advised to contrary from this office. "NAC. AB "Yours very truly, "By N.A. Clay." "Okahoma Oil Securities Co. And plaintiff testified that this is the only contract in writing that ever passed between himself and the company, although a copy of a letter was introduced that the defendant company claims was mailed to plaintiff prior thereto, but plaintiff denies that it was ever received by him, in which letter it claimed the right to accept or reject all applications, or orders, for stock. Plaintiff testified that he acted entirely, after the 24th day of February, 1917, upon the letter of that date, a copy of which is heretofore set forth in this opinion; that acting under this letter, from time to time, he sent in application orders for reservations of stock of the company, ranging from a few shares up to 9,000 and the evidence is that, as a matter of bookkeeping only, the company required the plaintiff to send in his personal check for the ten cents per share down payment and the company would immediately mail its check back to plaintiff for this amount as his commission, which he was entitled to under the contract: that none of plaintiff's orders were rejected by the company until plaintiff, on March 28, 1917, sent in to the company orders, signed by C.L. JoHansen, for 38,000 shares, together with his check for $3,800; that, on the day he sent in these orders, he had a telephone conversation with N.A. Clay, in which Clay, as manager of the company, commended him for his good work and urged him to take all orders he could, as the campaign would be closed for the sale of stock some time during the first days of April, thereafter, and in this conversation the agent, Clay, informed plaintiff that he would mail him additional books, containing blank orders for further reservations of stock, which books were actually sent by special delivery mail to plaintiff on the 29th day of March, 1917, and on the very day that the plaintiff secured the orders from C.L. JoHansen, the company, through its agent sent a letter congratulating plaintiff, in which it said: "I want to congratulate you upon the very splendid campaign you are conducting in that section and assure you that all of your customers will hear favorably from us in the course of the next few days." The orders for the 38,000 shares were mailed to the company on the 28th day of March, 1917, and on the 31st day of March, 1917, they were rejected by the company for the sole and only reason, as contained in their letter returning the reservation orders and check, in the following language: "We beg to advise that we cannot accept this business on account of the amount representing an oversubscription of this allotment of stock." But the company continued to accept other orders, sent in by plaintiff for reservation of stock, upon their receipt, accompanied by plaintiff's personal check, and at no time and no place does it appear that the company ever refused to accept each and all orders, without any investigation of the financial solvency of applicant, and each and every personal check of plaintiff, except to this one particular instance, and it occurs in the testimony that this same party, C.L. JoHansen, had been allotted 9,000 shares of this stock prior to this time, upon order secured by this plaintiff, and it further appears in the testimony that no notification was given to the plaintiff or other agents of the company that the stock was withdrawn from sale until the 2nd day of April, 1917. There was further testimony that plaintiff did not have actual cash to his credit in the bank upon which the check was drawn in the sum of $3,800, but that the defendants were informed that plaintiff had about $1,000 in the bank, and had made arrangements at the bank to have the check paid when presented, and the testimony further shows that the subscriber, JoHansen, did not have $47,500 at the time of the transaction to pay for said stock, but it was further shown, on part of the plaintiff, that JoHansen had placed a large portion of this stock with other parties, and that he was a man of some means, and he, himself, testified that he would have been able to meet the payments as they fell due, and it was further shown that the stock, soon after this transaction and before any further payment was due, practically doubled in value, and the testimony further showed that the plaintiff accepted title to the equity owned by JoHansen in a 320-acre farm as a down payment of the ten cents per share, required under the terms of the stock reservation order, and which was the plaintiff's commission for securing this order, but that plaintiff sent his personal check, as he had been doing on all other orders, to the company for $3,800, as heretofore stated, that he had made arrangements to have taken care of Page 208 by the bank when presented. The stock reservation certificates, by the terms, show how and when the payments were to be made on the deferred payments, and no stock certificates were to be delivered to any subscriber until every share was paid for in full. This, in substance, is a fair statement of the important facts, as presented to the court and jury, and at which the demurrer of the defendants was leveled. Attorneys for defendants contend that the demurrer to the evidence of plaintiff should have been sustained and urge that the evidence shows that the employment of plaintiff was by the defendant Oklahoma Oil Securities Company, and that there was no agreement or understanding by him with the American Oil Refining Company, and that the two corporations were two distinct and different entities. Upon a very careful reading of all the testimony introduced on part of the plaintiff we are forced to the conclusion that unquestionably the defendant Oklahoma Oil Securities Company is liable to this plaintiff, under the testimony, and plaintiff was entitled upon the proof offered by him to have the same go to the jury. We are forced to the conclusion that while the two companies were conducted, managed, and directed by W.D. Skirvin, the president of both companies, who interchangeably acted as president and manager, after he hired the manager, and at the beginning of the smaller company paid the office rent and other expenses of this company, and he, as president, and his secretary, who was also secretary of both companies, occupied the office with the manager of the smaller company, answered the telephone and communications to said company, and directed all of the business of the smaller company, and that, so far as the conduct of the affairs of this company is concerned, the two companies seemed to have been practically a one man company. The small company was organized as a matter of convenience for the sole and only purpose primarily to sell the stock of the larger company, and this business was the sole and only business that it ever conducted, during its lifetime, and the larger company, through its officers, had full knowledge of the connection of plaintiff with the smaller company, under his contract for the sale of the stock for which said smaller company was organized. The orders sent in by plaintiff for reservations of stock had always been accepted, without question and without any investigation as to the financial solvency of the applicants, and his personal checks, sent with the applications, had always been accepted by the defendant until the application for the 38,000 shares, accompanied by his personal check for $3,800, complained of in this action, was refused for the sole and only reason, assigned at the time, that the amount represented an over-subscription of the allotment of stock, although the company's agents had congratulated him upon this identical sale over the telephone, and on the next day had sent him additional blank applications, upon which to negotiate additional reservations, and, in a letter of the same date that this reservation was made, advised him, "* * * That all of your customers will hear favorably from us in the course of the next few days," and congratulated him upon the splendid campaign he was conducting, which, in effect, was an acceptance of this order, as we view it. The plaintiff introduced a letter received by him from the Oklahoma Oil Securities Company, which authorized him to accept contracts on the reservation plan, as shown by the application blanks, one of which is set forth in this opinion, "* * * Until such a time that you may be advised to the contrary from this office," and the record shows that he was advised with all the other agents of the company by messages sent to each to cease further sales on the 2nd day of April, 1917, then, under the plain directions of this letter, under which the plaintiff was acting, and under the letters of commendation for his good work and the telephone conversation, which, in effect, accepted this order, complained of, and the further fact that other orders, sent in by the plaintiff after this date, were accepted by the company, we are forced to the conclusion that this evidence was properly submitted to a decision of the jury. It is further complained of by attorneys for defendants that the personal check was not sufficient tender, although the evidence on part of the plaintiff showed that he had some money in the bank and had made arrangements with the bank to pay this check when presented, and the further fact that this matter of sending the check was a mere matter of bookkeeping, and the further fact that this was the method agreed upon by the plaintiff and defendant of carrying on this business, and the further and more important fact, which is fatal to the contention of defendants, that they made no objection at the time to this form of tender and did not reject the application upon this account at the time, so as to give the plaintiff an opportunity to make the tender in cash, the defendants cannot at this time urge this as a ground for reversal of this cause. Page 209 This court, in the recent case of Rupard et al. v. Rees,94 Okla. 49, 220 P. 893, held: "Failure to make objection to a check as tender at the time of payment is a waiver of the right to demand payment in money." Which is conclusive upon this phase of the case. It is further contended by attorneys for defendants that C.L. JoHansen was not financially responsible, and was not able to pay the $47,500 for this subscription of stock, and that he did not pay $3,800 in cash as the down payment. It was shown by plaintiff that this application had already bought 9,000 shares of stock, was a man of some means, had negotiated a large block of this stock subscribed for, and that, under the terms of the application, he had settled for the down payment of ten cents for each share by deed to the plaintiff for his equity in 320 acres of land, and that he had time to make partial payments, in the event that he had to make the payments, and that the stock increased in value nearly double before he would have had to make further payment at all, forcing us to the conclusion that this contention of attorneys cannot be sustained. The complaint that the agent took the amount of his commission in land rather than in money, under the system of bookkeeping and the system followed in these transactions with plaintiff, was of no material interest to the defendants, as this plaintiff was entitled to the immediate return to him of the company's check of this amount of money, and what he did with it was a matter that only concerned himself. Coupled with the further fact that no stock was to be issued by the company until the entire amounts had been paid by the subscriber was a full protection to the company for the further payment of the unpaid installments. The rule to be applied upon a demurrer to the evidence, as construed in the case of Great Southern Life Ins. Co. v. Long et al., and Ginner Miller Pub. Co. v. Sherman Machine Iron Works, 93 Okla. 221, 220 P. 650, is that: "Admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith." And, in such a case, the demurrer must be overruled. This has been so generally followed by this court that it is unnecessary to cite further authorities thereon, and applying this rule to the instant case, we are forced to conclude that the trial court was correct in overruling the demurrer to the evidence. There is no question, in our opinion that the smaller company, as broker, had full authority to employ agents for the sale of the stock of the larger company, and, under the peculiar circumstances of this case, that the larger company authorized the smaller company to employ subagents and had full knowledge of the employment of this plaintiff, and that it acquiesced in and ratified the employment of plaintiff, and this being our conclusion, all authorities agree that the larger company was responsible to the plaintiff for the payment of this commission, and that this plaintiff had full authority to take such subscriptions and to demand the commission claimed under his contract up to and including the 2nd day of April, 1917, the date of the notice that was contemplated would be given by the letter of February 24, 1917, which authorized plaintiff to accept contracts until such time that he was advised to the contrary from the office of defendants. This court has held where a broker, or agent, produces a purchaser ready to make the payment then due, the broker is not required to show that such purchaser had sufficient funds on hand at that time to make final payment. The general rule of law is that a broker, in order to earn his commission, must produce a purchaser ready and willing to make the payments upon the terms and within the time provided in the subscription order. Bleeker v. Miller et al., 40 Okla. 374, 138 P. 809; Thornburgh v. Haun, 79 Okla. 103, 190 P. 1083. And this rule was fully met by the plaintiff in this case. Having presented our reasons heretofore after a full and careful examination of the able briefs of counsel, submitted, and the record, we think that the second proposition, presented by counsel for defendants, has no merit under the peculiar circumstances of this case, and for the same reasons we do not think that the defendants were entitled to the instruction refused by the trial court and that the instructions given to the jury fairly stated the law of this case, and the jury having found its verdict against the defendants, based upon the law and the evidence, we conclude that the verdict of the jury was correct and that the judgment of the court upon said verdict is fully sustained by the law and the evidence and that there was no reversible error committed by the court in the Page 210 trial of this cause, and that this court should not disturb the verdict and judgment of the trial court on appeal. We are, therefore, of the opinion that the judgment of the trial court should be and is hereby affirmed. By the Court: It is so ordered.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3230590/	The cause was tried by the court without a jury. It is here insisted for the first time that no venue was proven. The finding of the court has the force and effect of a verdict of a jury and we think is entitled to the same protection. As to the venue, Mrs. Pearce, the principal state's witness, testified that, at the time of the alleged shooting, "I lived right this side of Ironaton on company land." The court takes judicial knowledge of the fact that Ironaton is in Talladega county, and the house of Mrs. Pearce being located between Talladega and Ironaton must of necessity have been within the county of the venue. Hodge et al. v. Joy et al., 207 Ala. 198,92 So. 171; 6 Enc. Digest (Mitchies) 31 P. 7 (2). The finding of the court on the question of venue was warranted by the evidence. It would be error for a trial court to permit details of a prior difficulty, but it is not error to permit the introduction of evidence as to all that was said in a conversation at the instance of the state, where a part of the conversation was brought out by the defendant. In other words, one party having brought out a part of conversation or dispute, the other party is entitled to all of it, that the jury may arrive at the true meaning of the parties from the whole, rather than from fragments. Other exceptions reserved to rulings of the court on the admission of evidence, relative to prosecutor's house having been shot into on previous occasions and in a different community by other parties, are so clearly without merit as to need no discussion. If the court trying the case believed the evidence for the state beyond a reasonable doubt, which apparently it did, there can be no doubt of the guilt of the defendant. As to this the evidence disclosed by the record is not of such character as would warrant this court in disturbing the judgment. Let the judgment be affirmed. Affirmed. On Rehearing. Our attention having been further called to the above cause, the court ex mero motu places the cause on rehearing for further consideration, and upon such consideration the former opinion is recalled, the foregoing opinion substituted, and application overruled and judgment of affirmance ordered to stand.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3453046/	Reversing. In July, 1936, W.A. Greene and Mrs. W.N. Hyden exchanged boilers and engines, the former agreeing to pay a difference or "boot" in the sum of $150.00 and to put a new boiler extension on the boiler he exchanged to Mrs. Hyden and to put the engine and boiler in good running condition. Mrs. Hyden used her boiler and engine in operating a grist mill. After the exchange and Greene had put on the boiler extension and claims to have made repairs necessary to put the boiler and engine exchanged to Mrs. Hyden in good running condition and had paid her the $150.00 as agreed in the contract, she instituted this action alleging in substance that the boiler had not been put in good condition but was dangerous and worthless. She sought to recover the difference between the fair market value of the engine she exchanged with Greene which she alleged was $500.00 and the sum he had paid her in the exchange. She further alleged that because of the failure of Greene to put the engine in good running condition she had been damaged by way of loss of customers and profits at her mill and sought recovery in the sum of $500.00. By answer and counterclaim Greene admitted the contract and exchange of the engines and boilers but made a general denial of the other material allegations of the petition and alleged that he complied with his contract and had put the boiler and engine in good running condition. He further pleaded failure of warranty of the boiler and engine which Mrs. Hyden traded to him, and loss of business occasioned thereby and sought to recover alleged damages growing out of the failure of warranty. Trial by jury resulted in a verdict for Mrs. Hyden in the sum of $300.00 for difference in engine and boilers and $200.00 for loss of profits in being unable to operate her mill and this appeal is from a judgment in conformity with that verdict. One of the principal grounds urged for reversal is that the court erred in instructing the jury. There is some evidence for appellant that after he had put on Page 786 the boiler extension and made repairs to the engine appellee accepted it and he thereupon paid her the balance of $150.00 which he had agreed to pay her in the exchange. There is also evidence indicating that she had never attempted to operate the engine after he claims to have put it in running condition, however, she testified that she had been advised that it was in such condition that it would be dangerous to attempt to operate it. The evidence on these matters is not clear or well developed. Under instruction No. 1 the jury was authorized to find for plaintiff such sum as they might believe was the difference between the price of the boiler and engine she exchanged with Greene and the one she received from him not to exceed the sum of $350.00, the amount claimed in her petition, if the jury believed that he failed to properly repair the engine, he exchanged with her and put it in good running condition. As we view the matter appellant agreed to turn the engine over to appellee in good running condition or in other words he warranted that it would be in such condition when he turned it over to her. Section 2651b-69, Kentucky Statutes, which is a part of our uniform sales act prescribes the remedies for breach of warranty and fixes the measure of damages in case of breach of warranty of quality. The measure of damages as therein fixed, aside from any special damages, is "the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty." Appellee pleaded damage by way of loss of business as a direct result of the failure of warranty and on proper showing of such damage would be entitled to recover on that account. Instruction No. 2 which authorized a finding for damages for loss of business or profit permitted a recovery for the full amount sought if the jury believed from the evidence that by reason of the failure of warranty of the engine, appellee was unable to continue and carry on her business. A somewhat similar instruction was condemned in St. Marys Machine Company v. Cook, 187 Ky. 112, 218 S.W. 733, in that it did not contain a proper criterion for recovery. It is difficult from the record to determine just on what theory appellee Page 787 was proceeding but apparently she has elected to retain the boiler and engine she received from appellant and to recover for breach of warranty or failure to put the engine in condition as agreed in the contract. In brief by counsel for appellee it is asserted that there has been no delivery of engines or boilers to appellee, and section 2651b-19, rule 2, is cited but it is quite obvious that the section has no application in this instance. Appellee would not be entitled to retain the engine and boiler and sit idly by without attempting to have appellant put it in order or do so herself; or without attempting to secure other power to operate her mill and recover damages indefinitely for loss of profit in being unable to operate her mill. According to her evidence the profit arising from the operation of her mill was about $7.00 per week although the evidence is somewhat vague regarding that matter. It is our view that in any event appellee would be entitled to recover damages only for such reasonable time as would have been required to put the engine and boiler in good running condition or to have secured power to operate the mill. It is our conclusion that instruction No. 1 is erroneous in that it did not fix the measure of damages substantially as indicated in subsection 7 of section 2651b-69 of the statutes, and instruction No. 2 is erroneous in that it permits recovery for loss of profit without any limit as to time as above indicated and this conclusion renders it unnecessary to discuss any other questions. Wherefore, the judgment is reversed for proceedings in conformity with this opinion.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3453047/	Affirming. This action in equity was instituted in the Magoffin circuit court on the 13th day of May, 1921, by the appellee, J.M. Whittaker and wife, against the appellant, Homer Whittaker, a daughter of J.M. Whittaker by a former marriage. The petition sought the cancellation of a deed executed on March 26, 1920, by which the appellees without valuable consideration conveyed to appellant thirty acres of land worth about $500.00 and owned by appellee, J.M. Whittaker. The cancellation was sought upon the ground that at the time the deed was executed J.M. Whittaker was in failing health and such a state of fear from repeated efforts of his brothers to assassinate him that he was so depressed in mind that he was incapable of transacting business or realizing the consequences of his acts and did not have sufficient mind to understand or comprehend what he was doing. The petition was duly verified and also alleged that appellant was an infant under fourteen years of age; that her mother was dead; that she resided with and was in the custody and control of her father and that she had no guardian, curator or committee. A guardian ad litem was appointed and process was executed upon him for her in accordance with section 52 of the Civil Code of Practice. Proof was taken upon interrogatories and an answer was filed by the guardian ad litem appointed by the court after service of process to defend for the infant defendant. Upon submission the chancellor cancelled the deed and from that judgment this appeal has been prosecuted in the name of the infant by her guardian ad litem. The grounds relied upon for reversal of the judgment are (1) the failure of appellees to file with their petition the original or a copy of the deed sought to be cancelled as required by section 492 of the Code; (2) that a court of equity is without power to cancel a deed to an infant in any event, and (3) that the evidence is not sufficient to sustain the chancellor's finding that the appellee, J.M. Whittaker, was of unsound mind at the time of the execution of the deed. The first and second grounds relied upon may be considered together, since both are based upon the theory that this is a proceeding to divest an infant of title to Page 681 real estate, and therefore either controlled by sections 489 to 498 inclusive of the Civil Code or not authorized at all. It is true that we uniformly have held that an infant can not be divested of title to real estate by sale unless authority therefor be found in these or other sections of the Code or except in the manner thereby prescribed. Conrad v. Conrad,152 Ky. 422, 153 S.W. 740; Wyatt's Trustees v. Grider, 158 Ky. 440, 165 S.W. 420; Noel v. Harper, 170 Ky. 657, 186 S.W. 503; Luscher v. Julian's Adm'r, 173 Ky. 150, 190 S.W. 692; Caulder v. Chenault's Ex'r, 154 Ky. 777, 159 S.W. 578; Ford v. May,157 Ky. 830, 164 S.W. 88; Grider's Judicial Sales of Real Estate, page 27. But all of these provisions and decisions treat only of proceedings to sell real property of persons under disability and have no reference whatever to an action such as this brought against an infant to determine and attacking the validity of his title to property. The power of a court to divest in infant (or any one else for that matter) of an admitted or established title to land by a sale thereof is purely statutory and therefore nonexistent except as limited and defined by statute; but there is no limitation in the Code or otherwise in this state upon the power of courts of general jurisdiction to determine and adjudge the rights of infants who are properly before and represented in the court in and to real estate or other property, and generally such courts have the same jurisdiction precisely in all such matters whether the parties be infants or under other disability or not. The rule in regard to actions by or against infants in respect to property rights is thus stated in 31 C. J. 1112-1114: "The fact that a person is an infant does not in any way prevent his suing, or being sued, either at law or in equity. "An infant may institute and maintain such actions as may be necessary and appropriate to maintain his property rights. "In the absence of statutory provision to the contrary, property rights may be enforced in actions or suits against infants as defendants, when such rights exist." Page 682 In an action very similar to the one now before us, Kraft's Guardian v. Koenig, 3 S.W. 803, 8 Ky. L. R. 870, it was held that a deed executed to an infant was properly set aside notwithstanding the fact that the grantees were infants to whom no fault or fraud could be imputed. We therefore are clearly of the opinion that neither of the appellant's first two complaints is tenable. Upon the question of the condition of appellee's mind at the time he executed the deed, the testimony is all one way and to the effect that he was not then of sound mind. We can not therefore disturb the chancellor's finding upon that question of fact. Perceiving no error in the record prejudicial to appellant's substantial rights the judgment is affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3453048/	Affirming. The appellant, Arvel Caudill, has been convicted of receiving stolen property of the value of more than $20 and sentenced to a term of one year and a day in the state penitentiary. The principal ground urged for reversal Page 675 of the judgment is alleged error of the court in overruling appellant's motion for a directed verdict of acquittal. It is argued that there was no evidence corroborating the two accomplices who testified. James Christian and Gus Ferguson, aged 15 and 16 years, respectively, testified that Christian entered the Morehead high school building in January, 1942, and stole a bronze plaque which was located in a hall in the building. Ferguson remained on the outside of the building and acted as a lookout. The two boys carried the plaque, which weighed 68 pounds, to a junk yard operated by a negro, Lee Story, who agreed to pay them $3. He paid 95c cash, and promised to pay the balance after he sold the plaque in Ashland, Kentucky. On the following day the boys sold the plaque to appellant, a dealer in junk and scrap metal, for $3. They returned to Lee Story the 95c he had advanced to them, and delivered the plaque in an alley to the appellant who loaded it in his truck. The transaction occurred after dark. They had seen appellant a few minutes earlier, had described the plaque to him, and he had agreed to purchase it for $3 and to meet them at the point where it was delivered. Christian testified that he told appellant the plaque had been stolen, and appellant said he would cut it and burn it to prevent identification. There was an inscription on the plaque containing the names of the members of the board of education serving at the time the building was erected, the name of the school superintendent at that time, the name of the contractor, and the date. A week or two after the transaction appellant took the plaque to Ashland and had it cut into several pieces in the plant of the Mansback Mill Company which possessed equipment for cutting metals to facilitate transportation. Appellant testified that he did not know the plaque was stolen, and that he had not at any time seen or read the inscription which identified it as property belonging to the Rowan county board of education. There was testimony for the Commonwealth to the effect that the plaque was worth between $75 and $100 at the time it was taken, while appellant testified that as scrap metal it was worth from $6 to $8. It in insisted that the testimony of Christian and Ferguson is not corroborated by other evidence as required by section 241 of the Criminal Code of Practice. Except under special circumstances, not present here, the thief and the receiver of the Page 676 stolen property are not accomplices. Duke v. Commonwealth,255 Ky. 403, 74 S.W.2d 471; Cole v. Commonwealth, 246 Ky. 149,54 S.W.2d 674. Furthermore section 1199 of Carroll's Kentucky Statutes, KRS 433.290, which defines the crime of knowingly receiving stolen goods, provides that possession by any person of any stolen property shall be prima facie evidence of his guilt. There is no escape from the conclusion that the evidence was sufficient to take the case to the jury and to sustain its verdict. Appellant complains because the presiding judge interrogated the appellant while he was on the witness stand. The record shows that the judge asked the appellant eleven questions, all of them obviously intended to clarify his prior testimony. A presiding judge is not prohibited from interrogating a witness in a criminal case provided he does not by the form of his question or his manner indicate to the jury his opinion as to the credibility of the witness being interrogated or the guilt or innocence of the accused. In the present case, however, we are not called upon to determine the probable effects of the questions or whether or not they were prejudicial, since no objection was made and no exception taken. Counsel for appellant has filed a supplemental brief in which the instructions are assailed. It is argued that instruction No. 1 is erroneous because it authorized the conviction of a felony without regard to the value of the property received, and that the court erred in failing to give a misdemeanor instruction on the theory that the property received was of less value than $20. We are unable to follow the argument since the record discloses that instruction No. 1 given by the court told the jury that if it found the defendant guilty of knowingly receiving stolen property it should punish him as for a felony if the value of the property received was $20 or more, and instruction No. 2 told the jury that he should be punished only as for a misdemeanor if the value was under $20. Instruction No. 1 is the same, in substance, as the instruction found in Stanley on Instructions, Section 931. We find no error prejudicial to appellant's substantial rights, and the judgment is affirmed. *Page 677	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2960955/	Order entered September 15, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00816-CR HECTOR JESUS CLAUDIO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 2 Dallas County, Texas Trial Court Cause No. MB14-04542-B ORDER The Court REINSTATES the appeal. On August 11,2015, we ordered the trial court to make findings regarding why the reporter’s record has not been filed. We ADOPT the finding that appellant no longer desires to pursue the appeal. We ORDER the appeal submitted as of the date of this order, without the reporter’s record and briefs, to a panel consisting of Chief Justice Wright and Justices Fillmore and Stoddart. See TEX. R. APP. P. 37.3(c), 38.84(b). /s/ ADA BROWN JUSTICE	01-03-2023	09-18-2015
https://www.courtlistener.com/api/rest/v3/opinions/1890188/	769 F. Supp. 575 (1991) UNITED STATES of America v. Joseph DiSOMMA, Defendant. No. SS 90 Cr. 428 (MGC). United States District Court, S.D. New York. August 1, 1991. 576 Otto Obermaier, U.S. Atty., S.D.N.Y., New York City by James B. Comey, for U.S. Joann Harris, New York City, for defendant Joseph DiSomma. OPINION AND ORDER CEDARBAUM, District Judge. On May 23, 1991, following an eight-week jury trial with six co-defendants, Joseph DiSomma was acquitted of mail fraud, RICO, and RICO conspiracy charges and convicted of one count of conspiracy to rob a jewelry store in violation of the Hobbs Act, 18 U.S.C. § 1951. I have denied DiSomma's motion for a judgment of acquittal under Fed.R.Crim.P. 29, and he is awaiting sentence. DiSomma now seeks bail pending sentence or appeal under 18 U.S.C. §§ 3143 and 3145(c). Section 3143 imposes stringent requirements for release pending sentence of persons convicted of crimes of violence. It also mandates detention of such persons pending appeal. Both sides agree that DiSomma cannot be released under § 3143 because conspiracy to rob is a crime of violence and DiSomma can be released on bail only if his application falls under the exception authorized by § 3145(c). That provision requires a clear showing of "exceptional reasons" for release. 18 U.S.C.A. § 3145(c) (West Supp.1991). Section 3145(c) also requires that the person seeking release meet the conditions set forth in § 3143(a)(1) or (b)(1), which I will consider first. Under § 3143(a)(1), a person awaiting imposition or execution of sentence may be released if "the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released...." 18 U.S.C.A. § 3143(a)(1) (West Supp.1991). The Government has stipulated that DiSomma meets this condition. Under § 3143(b)(1), a person who has filed an appeal or a petition for a writ of certiorari may be released if the judicial officer finds that the person is not likely to flee or pose a danger to any other person or the community and: (B) ... the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal[.] 18 U.S.C.A. § 3143(b)(1) (West Supp.1991). DiSomma will meet these conditions for release when his appeal is filed. DiSomma's appeal will raise a substantial question of law likely to result in reversal. DiSomma argued in his motion for acquittal, and will argue on appeal, that a reasonable juror could not conclude beyond a reasonable doubt that DiSomma conspired to commit robbery, as distinguished from burglary or larceny. DiSomma argued that the evidence was insufficient to show that he conspired to use "actual or threatened force, or violence...." 18 U.S.C.A. § 1951(b)(1) (West 1984). Although I denied DiSomma's motion for acquittal, the evidence supporting conviction was not overwhelming, and DiSomma raised a substantial question of law. If successful, DiSomma's appeal on this issue would result in reversal of his only conviction. DiSomma may be released under 18 U.S.C. § 3145(c) "if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." 18 U.S.C.A. § 3145(c) (West.Supp. 1991). The meaning of "exceptional reasons" in this new statute appears to be an issue of first impression. Neither § 3143 nor § 3145 defines "exceptional reasons." The ordinary meaning of "exceptional" is "being out of the ordinary," "uncommon," or "rare." Webster's Third New International Dictionary 791 (1986) (unabridged). The parties have offered as the only legislative history of the exception authorized 577 by § 3145(c) a letter from Carol Crawford, an Assistant Attorney General in the Justice Department's Office of Legislative and Intergovernmental Affairs, to Senator Paul Simon, the sponsor of the bill that amended § 3143 to provide for mandatory detention. The letter states that the Justice Department generally supports the bill but has concerns "about the mandatory nature of the proposed amendment" to § 3143. The letter then suggests that some provision be made for exceptions: While confinement will be the proper result in the vast majority of cases of persons convicted for crimes of violence and serious drug offenses, there may be rare instances in which release, under appropriate conditions, would be proper. For example, suppose a situation in which the convicted defendant does not pose either a danger to the community if released or a risk of flight, and in which the appeal raises a substantial question of law (e.g. an elderly man convicted under 18 U.S.C. [§] 1111 of the mercy killing of his spouse, who has lived in the community all his life without prior incident, and who is challenging the applicability of the federal murder statute to mercy killings, a question of first impression in the circuit). In such a case, release pending appeal or sentence might be a suitable disposition, and detention an unduly harsh remedy. The same might be true of even a convicted drug dealer who, because of wounds incurred during his capture, was temporarily incapacitated and thus not likely to commit further crimes or to flee, and whose appeal raised a novel and difficult search or seizure question on which the conviction will stand or fall. Letter from Carol T. Crawford to the Honorable Paul Simon, at 2 (July 26, 1989) (hereafter, "Crawford Letter"). DiSomma's application presents, in the language of Assistant Attorney General Crawford's letter, "a situation in which the convicted defendant does not pose either a danger to the community if released or a risk of flight, and in which the appeal raises a substantial question of law...." As in the examples given in that letter, DiSomma's appeal will raise an issue on which his only conviction will stand or fall. The unusual circumstance clearly shown by DiSomma is that the very element of his conviction about which he raises a substantial issue makes him ineligible for release under § 3143(a)(1) and (b)(1). Whether the evidence at trial was sufficient to prove beyond a reasonable doubt that DiSomma conspired to commit robbery, an essential element of which is the use or threatened use of violence, as distinguished from larceny or burglary, is the issue on which his motion for a judgment of acquittal was grounded and on which his conviction will stand or fall on appeal. It appears to me to be an exceptional reason for release that the substantial issue raised by DiSomma about his conviction the element of violence is the very element of his conviction that prevents his release under § 3143. The Government argues that DiSomma should not be eligible for release under § 3145(c) because his situation differs from the examples in Assistant Attorney General Crawford's letter. Although DiSomma's situation is not identical to either of those examples, it is nonetheless exceptional. The example of the elderly man convicted of a mercy killing under 18 U.S.C. § 1111 is exceptional because he raises "a question of first impression in the circuit." Crawford Letter, at 2. The example of the temporarily incapacitated drug dealer is exceptional because his appeal "raise[s] a novel and difficult search or seizure question...." Id. However, the language of § 3145(c) does not suggest that a person convicted of a crime of violence is required to raise a novel issue in a motion for acquittal or on appeal. Indeed, the reference in § 3145(c) to § 3143(b)(1) appears to incorporate the requirement in that provision that an appeal raise a substantial question of law or fact. Section 3145(c) says only that there must be "exceptional reasons." A motion for acquittal or an appeal that raises a novel issue may be one such reason, but nothing in the language of § 3145(c) suggests that it would be the only such reason. *578 Therefore, DiSomma and the Government are directed to submit proposed orders for DiSomma's release on bail. SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3443302/	Reversing. Appellant was convicted of the offense of grand larceny and sentenced to serve one year in the penitentiary. We are of opinion that his motion for a peremptory instruction should have been sustained. The only evidence introduced was that of the commonwealth. It proved by Mr. J.S. Berry that in October, 1927, he bought a now Oldsmobile sedan; that in the early part of November, while it was parked on a street of Central City, it was stolen by some one; that the next he saw it was when it was found in a ditch beside a road near Greenville. When found it was in a very muddy condition. He also stated that his license number was Muhlenberg County 4099. At this point it is necessary to state, for the benefit of those who are not acquainted with the system of automobile license plates used in the state of Kentucky in the year 1927, that these license plates carried not only the year and the name of our state, but also the name of the county in which the automobile was licensed. The system of numbering began with No. 1 in each county, so that there were 120 No. 1's in the state, and so on; the numbers in any one county coming to an end when the number of automobiles to be licensed therein was exhausted. While this system was in effect, the only way of identifying any particular Page 766 No. 1, or any number common to more than one county, was by adding thereto the name of the county to which it belonged as shown on the license plate. The commonwealth also proved by the witness Bone that along in the early part of November, 1927, the appellant visited him at his home in Christian county in an Oldsmobile closed car. Whether this car was a coupe or a sedan is not shown by his testimony. Bone also stated that the car was in a muddy condition. However, that was probably the condition of most of the cars in that community at that season of the year. Bone could not testify whether the car was a new one or not, but it was his impression that the speedometer showed that the car had been run about 500 miles. He stated that the license number was either 9940 or 4099, but he would not swear which it was. Neither could he recall whether the license plate bore the name of Muhlenberg county or not. The witness Strater testified that he saw the appellant in the early part of November, 1927, in an Oldsmobile closed car, but he does not say what character of closed car it was. He said that the car was muddy and appeared to be a new one. This is all the evidence upon which the commonwealth rested its case. While it is true that possession of stolen goods raises a prima facie presumption of their larceny on the part of the possessor (see Moore v. Commonwealth, 228 Ky. 643, 15 S.W.2d 434), yet of course there must be evidence to identify the property possessed by the accused as being that which was stolen. It is also well settled that while it is true that one may be convicted on circumstantial evidence, such evidence must do more than point the finger of suspicion at the accused. Pardue v. Commonwealth, 227 Ky. 205, 12 S.W.2d 288. The Attorney General in his brief very frankly states his doubts concerning the sufficiency of the commonwealth's evidence to sustain this verdict. We are of opinion that the evidence fails to identify the Oldsmobile car seen in the possession of the appellant as being the one belonging to Mr. Berry. This being so, there was no evidence upon which a conviction could be based. The judgment is therefore reversed, with instructions to grant the appellant a new trial in conformity with this opinion. Page 767	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/127073/	537 U.S. 1182 WHETSELv.SHERWOOD ET AL. No. 02-821. Supreme Court of United States. February 14, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. 2 C. A. 10th Cir. Certiorari dismissed under this Court's Rule 46.2. Reported below: 42 Fed. Appx. 353.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/3443358/	Affirming. In a zoning ordinance adopted by the City of Louisville in 1931, a large area in the eastern section of the City adjacent to Cherokee Park was classified as an "A" Single Family Residential District. The appellee Mrs. Edith Somers Taylor owns a tract of about 14 acres of land in this zoned area. On the tract is a 26-room residence. The appellee Louisville Hebrew Home, a corporation, agreed to purchase the Taylor property upon condition that such a change in the zoning of the property could be effected as would permit its use as a home or institution for the aged. On May 3, 1948, Mrs. Taylor applied to the building inspector of the City of Louisville for a certificate of occupancy to permit the use of the property as a home for the aged, and the building inspector refused to issue the certificate. Mrs. Taylor then filed with the Louisville Jefferson County Board of Adjustment and Appeals an application for a zoning variance under paragraph 3 of section 20 of the zoning ordinance of 1931, with a view to securing a certificate of occupancy authorizing the use of the Taylor property as a home or institution for the aged. A hearing on the application was conducted by the Board on May 12, 1948. A large number of owners of real estate adjacent to the Taylor property appeared at the hearing, and protested the granting of the application for a zoning variance. Among the protestants were the appellants Louise W. Thomson and William A. Thomson, Jr., her husband, and Glen E. VanSlyke and Pauline VanSlyke, his wife. Mrs. Thomson and her husband own 5 1/2 acres of land adjoining the Taylor property on the north. On the Thomson land is a large residence which the Thomsons have occupied for many years as their home. The appellants Glen VanSlyke and his wife own 2 1/2 acres of land which is adjacent to the Taylor property on the northwest, and is separated from it by a street, Woodford Place. The VanSlyke property is unimproved, but prior to the application for a change in zoning of the Page 755 Taylor property the VanSlykes had contracted for the construction of a residence on their land costing not less than $40,000. On June 9, 1948, the Board of Adjustment and Appeals adopted a resolution granting Mrs. Taylor's application. The resolution is as follows: "Whereas, this Board is authorized by the Zoning Ordinance to permit institutions of a philanthropic nature in any zoning, district; and "Whereas, due to the size and type of applicant's residence, it is no longer practical to maintain the building as a single family dwelling; and "Whereas, the use of the building as proposed, due to its location and the area of the property, will not adversely affect the surrounding residential neighborhood; and "Whereas, the applicant agrees to certain restrictions as to the future use of the property; it is "Resolved, that the application be and is hereby granted on condition that the deed conveying the property to the Louisville Hebrew Home contains the restrictive covenants as set forth in a letter to the Board of Adjustment and Appeals from Allen P. Dodd, Sr., and Carl K. Helman, dated May 13, 1948, which are as follows: "As a part of the consideration of this, deed, the party of the second part agrees for itself, its successors and assigns, that said above tract of land shall be used as an institution of a philanthropic nature, other than that of a correctional nature, and without profit, and if the second party should sell or convey any part of said property not used by it, or all of said property, the purchaser or purchasers thereof, or successor purchaser or purchasers thereof, shall use the property in accordance with the terms and provisions of the zoning ordinances and regulations with reference to adjoining property in that particular area within the City of Louisville that are in force and effect at the time of the sale, meaning thereby that no part of said property, if sold by the purchaser or its successors or assigns, shall be used except for single family residences unless and except the area is rezoned for other uses and purposes, and then only for such other uses and purposes as are Page 756 provided by the ordinances adopted by the City of Louisville in the future with respect to this property and the adjoining property. "And on the further condition that the property be restricted to the uses as set forth in a letter to the Board of Adjustment and Appeals from Carl K. Helman, dated May 14, 1948, which are as follows: "That the ordinance, which is now pending to change the present zoning of the property, will be immediately withdrawn and so long as the use is continued, no ordinance concerning the rezoning of the premises will be introduced by the owners of the land; that no laundry will ever be placed in the garage on the premises; no hospitalization facilities will be maintained on the premises; no bedridden guests will be admitted; no additional structures or additions to present structure will be made without permission of the Board of Zoning Adjustment and Appeals, or their successors, and that the existing main buildings be used only for the purpose of caring for aged and indigent persons, and staff, or as permitted by the existing zoning regulations in effect." Thereupon Mr. and Mrs. Thomson and Mr. and Mrs. VanSlyke, pursuant to KRS 100.085, filed in the office of the clerk of the Jefferson Circuit Court a statement of appeal. The appellees, Mrs. Edith Somers Taylor and Louisville Hebrew Home, filed a demurrer to the statement of appeal, the demurrer was sustained, and, the appellants having declined to plead further, the order of the Board of Adjustment and Appeals was affirmed and the appeal dismissed. From that judgment this appeal is prosecuted. It is first argued that the court was without authority to dispose of the case on demurrer, since the statutes on the subject mandatorily require the court to hear evidence. KRS 100.085(2) provides that after an appeal is taken from a ruling of the Board of Adjustment and Appeals the procedure shall be the same as provided in KRS 100.057 with reference to appeals from actions of the Zoning Commission. KRS 100.057(2) provides that the procedure shall be the same as in common law actions, and hearings in the Circuit Court shall be de novo and heard by the judge. Certainly the judge has authority Page 757 to determine on demurrer, as in any common law action, whether or not the facts stated in the statement of appeal, if proved, would entitle the appellants to the relief sought. The statement of appeal is in five paragraphs. Paragraph 1 sets forth the history of the proceedings, and alleges that the order appealed from is illegal and does not carry out the purposes and is contrary to the intent of KRS 100.031 and of the joint City and County planning and zoning plans and regulations adopted pursuant to the statute. Paragraph 2 alleges that the order is contrary to public policy and void in that it permits the use of a single tract of land located within a large area zoned as an "A" One-Family Residential District for institutional purposes, and constitutes spot zoning. Paragraph 3 alleges that the order was adopted under the ostensible authority of paragraph 3 of section 20 of the zoning ordinance of July 8, 1931, which is void because the City Council was without statutory authority to adopt it, such authority not being conferred by KRS 100.082, which defines the powers and duties of the Board of Adjustment and Appeals. Paragraph 4 alleges that the order deprives the owners of real estate affected thereby, including the appellants, of property without due process of law in contravention of the provisions of the Fourteenth Amendment of the Constitution of the United States and of section 13 of the Constitution of Kentucky, and therefore is void because "Neither Chapter 100 of the Kentucky Revised Statutes, nor the aforesaid ordinance adopted and approved July 8, 1931, nor any other statute or ordinance, contains any provision requiring the Board to give notice in advance of the Board's meetings to owners of real estate who will or may be adversely affected by the resolutions or orders adopted or entered at such meetings." Paragraph 5 alleges that the order is illegal, arbitrary and discriminatory because it permits an institutional use of property in "A" One-Family Residential District. The essence of appellants' case is found in paragraphs 3 and 4 of their statement of appeal. The remaining paragraphs contain only conclusions of law. Paragraph 3 of the statement of appeal alleges that the Board of Adjustment and Appeals granted the zoning variance here in question under authority of paragraph Page 758 3 of section 20 of the zoning ordinance, and that that paragraph of the zoning ordinance is void because in enacting it the Board of Aldermen exceeded the authority delegated to it by the General Assembly in KRS 100.082(3). The zoning ordinance adopted in 1931, pursuant to the statutes then in force, provides that "in the 'A' One-Family District no building or land shall be used and no building shall be hereafter erected or structurally altered, unless otherwise provided in this ordinance, except for one or more of the following uses." Then follow ten exceptions, including museums, libraries, parks, playgrounds or community centers owned and operated by the City of Louisville, one-family dwellings, churches, schools, and golf courses. Section 20 of the ordinance provides: "The Board of Adjustment and Appeals of Louisville may, in cases where it is exceptionally difficult if not impossible to comply with the exact provisions of this ordinance, make such variation as will prevent unwarranted hardship or injustice and at the same time most nearly accomplish the purpose and intent of the regulations of this ordinance. "Said Board shall especially have the following powers in addition to those specifically granted by Statute: * * * "(3) To permit the location of the following uses in a district from which they are prohibited by this ordinance: * * * institutions of an educational or philanthropic nature." The zoning ordinance was adopted pursuant to Chapter 86 of the Acts of 1930, sections 3037h-111 to 3037h-137, inclusive, of Carroll's Kentucky Statutes, 1936 Edition. Section 12 of the Act prescribed the powers and duties of the Board of Adjustment and Appeals, and apparently gave to it broader powers than does the present statute, KRS 100.082(3), which was enacted in 1942. Acts of 1942, Chapter 176, section 10. Section 12 of the 1930 Act provided that the City Council should provide for the appointment of a Board of Adjustment and Appeals, and in the regulations and restrictions adopted pursuant to the authority of the Act might provide that the Board of Adjustment and Appeals Page 759 might, "in cases where it is exceptionally difficult if not impossible to comply with the exact provisions of the ordinance, make such variations as will prevent unwarranted hardship or injustice and at the same time most nearly accomplish the purpose and intent of the regulations of the zoning plan." The Act provided that the Board of Adjustment and Appeals should have the following powers: "(a) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto. "(b) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance. "(c) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, the enforcement of the provisions of the ordinance will result in unwarranted hardship and injustice, but which will most nearly accomplish the purpose and intent of the regulations of the zoning plan." Under this Act the Board of Aldermen undoubtedly had the authority to enact paragraph 3 of section 20 of the zoning ordinance, and to empower the Board of Adjustment and Appeals to permit the location of institutions of a philanthropic nature in "A" One-Family Districts. The Board of Aldermen could have permitted such use without limitation in its zoning ordinance, but the delegation to the Board of Adjustment and Appeals of the power to permit such use in its discretion was not in excess of the authority conferred on the Board of Aldermen by the statute then in force. Section 1 of the 1942 Act, now KRS 100.035, preserves the ordinances adopted under the 1930 Act. The pertinent part of the section reads: "Any and all existing planning and zoning plans, ordinances, resolutions or orders, and regulations and restrictions, or amendments thereof, in effect within the respective territorial jurisdictions of such county and Page 760 such city shall continue and remain in full force and effect until superseded by new planning and zoning plans, ordinances, resolutions or orders, regulations and restrictions, approved and adopted as herein provided." The Board of Adjustment and Appeals supplies the "safety valve" function necessary to make a zoning plan effective and at the same time avoid arbitrariness. The legislative body of the City cannot foresee the exceptional cases that can arise in the administration of a zoning ordinance, and it has been found necessary to create a board of appeals to make variances in proper cases. In the present case, the order of the Board was not actually the granting of a variance, but was a granting of the use of property permissible under the zoning ordinance but subject to approval by the Board of Adjustment and Appeals. The order did not change any provision of the zoning ordinance, but merely applied the existing law as the Board was authorized to do and the act of the Board did not, therefore, constitute spot zoning, which distinguishes this case from Polk v. Axton,306 Ky. 498, 208 S.W.2d 497. Appellees argue that the police power does not extend to and embrace the authority to exclude from a class "A" One-Family Residential District the use of property, like that here involved, as a home for aged people, and they cite Village of University Heights v. Cleveland Jewish Orphans' Home, 6 Cir.,20 F.2d 743, 54 A.L.R. 1008, writ of certiorari denied275 U.S. 569, 48 S. Ct. 141, 72 L. Ed. 431; Women's Kansas City St. Andrew Society v. Kansas City, Missouri, 8 Cir., 58 F.2d 593, and State of Washington v. Roberge, 278 U.S. 116, 49 S. Ct. 50,73 L. Ed. 210, 86 A.L.R. 654, but in view of what has been said we do not reach that question. Appellants insist that the Board's order is void because the statute and ordinance under which it was entered violates the due process clauses of the Federal and State Constitutions, since neither the statute nor ordinance requires the Board to give notice of the meetings at which its orders are entered, nor to afford property owners whose rights may be affected an opportunity to be present and heard at such meetings, to compel the attendance of witnesses in their behalf nor to cross-examine adversary witnesses. KRS 100.082 empowers the *Page 761 Board of Adjustment and Appeals to hold hearings, and KRS 100.042 provides that the Board shall hold, at least, one regular meeting in each month, and shall adopt rules and regulations for the transaction of business. It was not alleged that the Board had not adopted a rule providing for notice to property owners whose rights might be affected by a hearing. On the contrary, it is conceded that such a rule had been adopted, and that all interested parties received notice in the present proceeding. It is not claimed that the notice given was not sufficient. Where the statute does not prescribe the character of the notice, some sort of reasonable notice must be given. Mollette v. Board of Education, 260 Ky. 737, 86 S.W.2d 990. Cf. Louisville Jefferson County Planning Zoning Commission v. Ogden, 307 Ky. 362, 210 S.W.2d 771. In view of the provisions of the zoning ordinance of 1931 heretofore mentioned, no facts are alleged by appellants showing that the contemplated use of the Taylor property is out of harmony with the general plan designed to secure and promote the public interest, nor that the order of the Board of Adjustment and Appeals will do substantial injustice to other owners in the district. It does not appear that the Board's action was arbitrary or discriminatory or that the Board abused the discretion vested in it, and unless it so appears the courts will not disturb its decisions. Crain v. City of Louisville, 298 Ky. 421, 182 S.W.2d 787; Selligman v. Von Allmen Bros., 297 Ky. 121, 179 S.W.2d 207; Smith v. Selligman,270 Ky. 69, 109 S.W.2d 14. The Circuit Court properly dismissed the statement of appeal, and the judgment is affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3099716/	Order entered August 14, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00775-CV IN RE THERESA BARNETT, Relator On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC10-00136 ORDER Before Justices Bridges, Francis, and Lewis The Court has before it relator’s August 6, 2013 “Motion for Emergency Relief from Sanctions Order.” Relator’s petition for writ of mandamus was denied by this Court on July 2, 2013. The sanctions order was signed on July 29, 2013 and applies to a motion to recuse and is unrelated to the mandamus proceedings. Accordingly, we DENY relator’s August 6, 2013 “Motion for Emergency Relief from Sanctions Order.” We likewise DENY the August 7, 2013 and August 8, 2013 supplemental emergency motions. /s/ DAVID L. BRIDGES JUSTICE	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/4538742/	In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS (Filed: May 4, 2020) * * * * * * * * * * * * * * JULIE KEEN WHITE, on behalf of * the ESTATE OF CYNTHIA LADEW * QUINN, * UNPUBLISHED * No. 17-1644V Petitioner, * * Special Master Dorsey v. * * Attorneys’ Fees and Costs * SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * * Collie B. Sledge, III, Rolling, Perrilloux & Sledge, Hammond, LA, for petitioner. Sarah C. Duncan, U.S. Department of Justice, Washington, D.C., for respondent. DECISION ON ATTORNEYS’ FEES AND COSTS1 On October 31, 2017, Cynthia Quinn filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (“Vaccine Act”). Ms. Quinn first alleged that she developed Guillain-Barré syndrome (“GBS”) as a result of a trivalent influenza (“flu”) vaccine she received on November 4, 2014. She then amended her claim to state that the flu vaccine she had received was the quadrivalent flu vaccine, rather than trivalent. 1 This Decision will be posted on the website of the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012). This means the Decision will be available to anyone with access to the internet. As provided by 44 U.S.C. § 300aa-12(d)(4)B), however, the parties may object to the published Decision’s inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b), each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical filed or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise the whole decision will be available to the public in its current form. Id. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012) (“Vaccine Act” or “the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C. §§ 300aa. On December 14, 2019, Ms. Quinn passed away for reasons unrelated to her GBS. Her daughter, Julie White (“petitioner”) assumed the role of petitioner and opted to continue pursuing the claim on behalf of her late mother’s estate. ECF No. 26. On July 22, 2019, the parties filed a proffer, which the previously assigned special master adopted as his decision awarding compensation on July 23, 2019.3 ECF No. 33. On January 20, 2020, petitioner filed an application for attorneys’ fees and costs. Motion for Attorney Fees (ECF No. 40). Petitioner requests compensation in the amount of $17,210.00. Fees App. at 4. Pursuant to General Order No. 9, petitioner warrants that she has not personally incurred costs in pursuit of this litigation. Fees App. at 6. Respondent filed his response on January 28, 2020 indicating that he “is satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this case.” Response, ECF No. 41, at 2. Petitioner did not file a reply thereafter. The matter is now ripe for disposition. For the reasons discussed below, the undersigned GRANTS petitioner’s motion and awards a total of $17,210.00. I. Discussion Under the Vaccine Act, the special master shall award reasonable attorneys’ fees and costs for any petition that results in an award of compensation. 42 U.S.C. § 300aa-15(e)(1). When compensation is not awarded, the special master “may” award reasonable attorneys’ fees and costs “if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” Id. at §15(e)(1). In this case, because petitioner received compensation, she is entitled to a final award of reasonable attorneys’ fees and costs. a. Reasonable Attorneys’ Fees The Federal Circuit has approved use of the lodestar approach to determine reasonable attorney’s fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first determines “an initial estimate of a reasonable attorney’s fee by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’” Id. at 1347-58 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). Then, the court may make an upward or downward departure from the initial calculation of the fee award based on other specific findings. Id. at 1348. Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health and Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health and Human Servs., 3 On October 8, 2019, this case was reassigned to the undersigned for resolution of attorneys’ fees and costs. ECF No. 39. 2 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of a petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). Special masters may rely on their experience with the Vaccine Program and its attorneys to determine the reasonable number of hours expended. Wasson v. Sec’y of Health and Human Servs., 24 Cl. Ct. 482, 484 (Fed. Cl. Nov. 19, 1991) rev’d on other grounds and aff’d in relevant part, 988 F.2d 131 (Fed. Cir. 1993). Just as “[t]rial courts routinely use their prior experience to reduce hourly rates and the number of hours clamed in attorney fee requests … [v]accine program special masters are also entitled to use their prior experience in reviewing fee application.” Saxton, 3 F.3d at 1521. i. Reasonable Hourly Rates Petitioner requests that her attorney, Mr. Collie Britain Sledge, III be compensated for his work at a flat rate of $200.00 per hour for all work performed, from 2015 to 2019. Mr. Sledge has been licensed to practice law since 2006. Fees App. at 5. The undersigned finds the requested hourly rates for his work to be reasonable in the instant case.4 ii. Reasonable Hours Expended The undersigned has reviewed the submitted billing entries and finds that the total number of billed hours appears reasonable in light of the work performed in the instant case. Respondent has not indicated that he finds any particular entry to be objectionable. Therefore petitioner is awarded the full amount of attorneys’ fees requested, $17,210.00. II. Conclusion Based on all of the above, the undersigned finds that it is reasonable compensate petitioner and her counsel as follows: Attorneys’ Fees Requested $17,210.00 (Total Reduction from Billing Hours) - Total Attorneys’ Fees Awarded $17,210.00 Accordingly, the undersigned awards $17,210.00 in attorneys’ fees and costs, in the form of a check payable jointly to petitioner and petitioner’s counsel, Mr. Collie Britain Sledge, III. 4 In finding the requested rates reasonable, the undersigned is not making a determination as to whether Mr. Sledge or any other attorney in Hammond, LA is entitled to forum rates or local rates. 3 In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of Court SHALL ENTER JUDGMENT in accordance with this decision.5 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 5 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 4	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/4538741/	In the United States Court of Federal Claims No. 20-601C Filed: June 3, 2020 NOT FOR PUBLICATION RYAN WEINSCHENK, Plaintiff, v. UNITED STATES, Defendant. OPINION & ORDER Tapp, Judge. On May 13, 2020, Plaintiff, Mr. Ryan Weinschenk (“Weinschenk”), proceeding pro se, filed a Complaint in this Court, alleging he “was continuously and deliberately harmed over 20+ years by direct and indirect action” of the Central Intelligence Agency, Indiana State Police, and other federal, state, and local government entities. (See Compl., ECF No. 1). In addition, Weinschenk filed a Motion to Proceed Under Seal, claiming the allegations contained in the complaint would impact unspecified criminal proceedings and the upcoming presidential election. (ECF No. 2). On May 27, 2020, Defendant, the United States, filed a Motion to Dismiss for lack of subject-matter jurisdiction and/or for failure to state a claim upon which relief can be granted, which also stated an opposition to Weinschenk’s Motion to Proceed Under Seal. (ECF No. 8). On June 1, 2020, Weinschenk filed his response. (ECF No. 9). Although the United States’ reply brief in support of its Motion to Dismiss is not due until June 18, 2020, the Court does not believe additional briefing is necessary to rule on this matter. Accordingly, there being no just cause for delay and for the reasons set forth below, the Court DENIES Weinschenk’s Motion to Proceed Under Seal and GRANTS the United States’ Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”). As the Court finds subject matter jurisdiction to be lacking, there is no occasion to address the United States’ alternative theory of dismissal under RCFC 12(b)(6). As an initial matter, with regard to Weinschenk’s Motion to Proceed Under Seal, there is a “strong presumption in favor of public access to court proceedings.” In re Violation of Rule 28(D), 635 F.3d 1352, 1356 (Fed. Cir. 2011) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Nevertheless, courts have “discretion to seal documents if the public's right of access is outweighed by competing interests.” Black v. United States, 24 Cl. Ct. 461, 464 (1991). The party seeking to limit the disclosure of discovery materials must show that “specific prejudice or harm will result if no protective order is granted.” In re Violation of Rule 28(D), 635 F.3d at 1357–58 (Fed. Cir. 2011) (citing Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002). Here, however, Weinschenk’s vague references to unspecified criminal proceedings and the upcoming presidential election are insufficient to overcome the “strong presumption in favor of public access to court proceedings.” See id. at 1356. Weinschenk has not identified any “criminal proceedings” that would be impacted by the present suit, nor has he explained how his allegations relate to any such proceedings or the presidential election. Thus, Weinschenk has failed to show that “specific prejudice or harm will result” if his motion is not granted. See id. at 1357. Turning to the United States’ Motion to Dismiss, the Court agrees that Weinschenk has failed to establish subject matter jurisdiction. Whether a court has jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). The burden of establishing subject matter jurisdiction rests with the plaintiff, who must do so by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). While a pro se plaintiff’s pleadings are generally held to “less stringent standards” than those of a professional lawyer, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), the Court cannot extend this leniency to relieve plaintiffs of their jurisdictional burden. Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). “If the Court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” RCFC 12(h)(3). This Court’s jurisdiction is generally delimited by the Tucker Act, 28 U.S.C. § 1491. The Tucker Act limits this Court’s jurisdiction to suits “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon and express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a). The Tucker Act itself is only a jurisdictional statute that does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify a “money- mandating” source of law to support a claim for money damages. See Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). If the claim is not based on a “money- mandating” source of law, then it lies beyond the jurisdiction of this Court. Metz v. United States, 466 F.3d 991, 997 (Fed. Cir. 2006). In his Complaint, Weinschenk alleges that he was “continuously and deliberately harmed over 20+ years by direct and indirect action of a federal agency directing employees from additional federal, state, and local government entities to take actions against [him] without a favorable outcome.” (Compl. at 1). Specifically, Weinschenk alleges, inter alia: Employee[s] of the Central Intelligence Agency directed assets with casting [Weinschenk] in the role of “Jesus” with surname translation “blood of Christ.” Contractors within the Indiana State Police (understood as Roman state) then proceeded to persecute [Weinschenk] outside the courts to force a life of poverty because of this surname deliberately ruining [Weinschenk’s] education, career, relationships, along with other actions to the point federal employees became suspicious. [Weinschenk] has never actually charged to 2 the best of his knowledge and these actions are intended to leave [Weinschenk] in a position where a career would not be viable. (Compl. at 1–3). Assuming these allegations are true and drawing all inferences in the light most favorable to Weinschenk, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), these claims are not founded upon the Constitution, any act of Congress, or any express or implied contract with the United States. See 28 U.S.C. § 1491. Rather, these claims “sound in tort” and therefore fall outside the jurisdiction of this Court. 28 U.S.C. § 1491(a) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States . . . not sounding in tort”) (emphasis added). Moreover, even if Weinschenk’s claims were sufficient for purposes of the Tucker Act, Weinschenk has not identified a “money-mandating” source of law that would bring his claims within the jurisdiction of this Court. See Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed. Cir. 2008). Consequently, Weinschenk has failed to establish subject- matter jurisdiction and his claims must be dismissed. RCFC 12(h)(3). In light of this, there is no occasion to address the United States’ alternative theory of dismissal pursuant to RCFC Rule 12(b)(6). For the reasons stated above, the Court hereby DENIES Weinschenk’s Motion to Proceed Under Seal and GRANTS the United States’ Motion to Dismiss for lack of subject matter jurisdiction pursuant to RCFC Rule 12(b)(1). As such, there is no occasion to address the United States’ alternative theory of dismissal pursuant to RCFC Rule 12(b)(6). The Clerk is directed to enter judgment accordingly. IT IS SO ORDERED. David A. Tapp DAVID A. TAPP, Judge 3	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/4538748/	In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-1966V (not to be published) KATHERINE P. CARTER, Chief Special Master Corcoran Petitioner, v. Filed: May 4, 2020 SECRETARY OF HEALTH AND Special Processing Unit (SPU); HUMAN SERVICES, Attorney’s Fees and Costs Respondent. Kyle Monroe Moore, The Law Office of Kyle M. Moore, LLC, Gainesville, GA, for Petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent. DECISION ON ATTORNEY’S FEES AND COSTS 1 On December 21, 2018, Katherine P. Carter filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). Petitioner alleges that she suffered an injury, described as adhesive capsulitis or frozen shoulder, which meets the Table definition for a shoulder injury related to vaccine administration (“SIRVA”) after receiving the seasonal influenza vaccination on 1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). October 18, 2017. (Petition at 1, ¶¶ 2, 12). On February 21, 2020, a decision was issued awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 23). Petitioner filed a motion for attorney’s fees and costs on March 23, 2020 (ECF No. 27), requesting a total amount of $16,148.25. 3 In accordance with General Order #9, Petitioner has also filed a signed statement indicating that Petitioner incurred no out-of- pocket expenses. (Id. at 11). Respondent reacted to the motion on March 23, 2020, indicating that he is satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this case and defers to the Court’s discretion to determine the amount to be awarded. (ECF No. 28). On April 23, 2020, I ordered Petitioner to file supporting documentation in her request for costs. (ECF No. 30). In response, Petitioner filed a second motion for attorney’s fees, reducing the total amount requested to $15,335.32, and providing the documentation requested in my order. (ECF No. 31). 4 I have reviewed the billing records submitted with Petitioner’s requests and find a reduction in the amount of fees to be awarded appropriate, for the reasons listed below. ANALYSIS The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Counsel must submit fee requests that include contemporaneous and specific billing records indicating the service performed, the number of hours expended on the service, and the name of the person performing the service. See Savin v. Sec’y of Health & Human Servs., 85 Fed. Cl. 313, 316-18 (2008). Counsel should not include in their fee requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). It is “well within the special master’s discretion to reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request sua sponte, apart from objections raised by respondent and without providing a petitioner notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs., 86 Fed. Cl. 201, 209 (2009). A special master need not engage in a line-by-line analysis of petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 719, 729 (2011). 3 Mr. Moore did not include the separate amount of fees or costs, only a total amount requested. (ECF No. 27 at 10). 4 As in the original motion for attorney fees and costs, however, Petitioner again failed to separate out fees from costs. The rationale for the reduction in total amount demanded was also not included in the second motion. 2 The petitioner “bears the burden of establishing the hours expended, the rates charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel “should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S., at 434. ATTORNEY’S FEES A. Hourly Rates Petitioner requests the rate of $250 per hour for his attorney Kyle M. Moore for alltime billed between 2017 - 2020. (ECF No. 27 at 3). Mr. Moore’s has been a licensed attorney since 2013, placing him in the range of attorneys with 4-7 years’ experience on the OSM Attorney Hourly Rate Schedule. 5 Mr. Moore was previously awarded the rate of $175 per hour for time billed through 2016. See Petterson v. Sec’y of Health & Human Servs., No. 15-960V, 2016 WL 1243, (Fed. Cl. Spec. Mstr. March 8, 2016). Although his requested rate is a significant hourly increase from his previously awarded rate, it is a reasonable request and within his appropriate experience range, and I therefore find no need to reduce or adjust the requested rate. Accordingly, based on my experience and the relevant factors, 6 I award the increased rate requested. B. Paralegal Tasks at Attorney Rates Mr. Moore billed his full attorney rate for multiple entries on tasks that are considered primarily paralegal. Attorneys may be compensated for paralegal-level work, but at a rate that is comparable to what would be paid for a paralegal. See, e.g. Doe/11 v. Sec’y of Health & Human Servs., No. XX-XXXV, 2010 WL 529425, at 9-10 (Fed. Cl. Spec. Mstr. Jan. 29, 2010) (citing Missouri v. Jenkins, 491 U.S. 274, 288 (1989)); Mostovoy v. Sec’y of Health & Human Servs., No. 02-10V, 2016 WL 720969, at 5 (Fed. Cl. Spec. Mstr. Feb. 4, 2016); Riggins. v. Sec’y of Health & Human Servs., 99-382V, 2009 WL 3319818, at 5 The Attorneys’ Fee Schedule for 2020 is available at http://www.uscfc.uscourts.gov/node/2914. 6 See McCulloch v. Health and Human Services, No. 09–293V, 2015 WL 5634323 at 17 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). McCulloch provides that the following factors are paramount in deciding a reasonable forum hourly rate: experience in the Vaccine Program, overall legal experience, the quality of work performed, and the reputation in the legal community and of the community at large. 3 20-21 (Fed. Cl. Spec. Mstr. June 15, 2009); Turpin v. Sec’y of Health & Human Servs., No. 99-535, 2008 WL 5747914, at 5-7 (Fed. Cl. Spec. Mstr. Dec. 23, 2008). Examples of these include: • November 20, 2017 (2 hrs) “Medical records requests drafted and sent via USPS for multiple medical providers”; • June 27, 2018 (2 hrs) “Draft and send via USPS updated medical records requests for multiple medical providers”; • November 28, 2018 (4 hrs) “Review and organize all medical records for preparation to file with USCFC. Reviewed all pages for completeness.”; and • November 26, 2019 (1.50 hrs) “Review and revise petitioner affidavit prior to submission to court. File affidavit with the court. Dra(f)t and submit statement of completion. Review and submit additional medical records to the court.” (ECF No. 31 at 3, 5, and 7). I hereby reduce Mr. Moore’s rate to the reduced rate of $145 per hour for tasks considered paralegal. This reduces the amount of attorney fees to be awarded in the amount of $1,102.50. 7 C. Travel Time Mr. Moore billed three hours of travel time to meet with Petitioner on both November 14, 2017, and May 2, 2018, for a total of six hours. (ECF No. 31 at 3 and 4). In the Vaccine Program, however, special masters traditionally have compensated for time spent traveling when no other work was being performed at one-half an attorney’s hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V, 2011 WL 3705153, at 24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No. 06-559V, 2009 WL 2568468, at 21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs., No. 01-61V, 2006 WL 3419805, at 12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). Special masters should not use this rule as standard practice but rather “[e]ach case should be assessed on its own merits.” Gruber v. Sec'y of Health & Human Servs., 91 Fed. Cl. 773, 791 (2010). “Even an automatic 50% 7 This amount consists of $250 - $145 = $105 x 10.5 hours = $1,102.50. 4 award may be too high for an undocumented claim, given the possibility that an attorney may use the travel time to work on another matter or not to work at all while traveling.” Id. Given that it appears that Mr. Moore drove to these meeting with Petitioner, additional work on the case could not have been performed during his travel. I therefore reduce the hours billed for travel by 50 percent, reducing the attorney fees to be awarded by $750.00. 8 ATTORNEY COSTS Petitioner requests $1,610.32 in overall costs. (ECF No. 31 at 10 – 21). This amount is comprised of obtaining medical records, shipping costs and the Court’s filing fee. I have reviewed the requested costs and find them to be reasonable and award requested amount in full. CONCLUSION The Vaccine Act permits an award of reasonable attorney’s fees and costs. Section 15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I award a total of $13,482.82 (representing $11,872.50 in attorney’s fees and $1,610.32 in costs) as a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in accordance with this decision. 9 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8This amount consists of $250 x 6 hrs = $1,500 x .50 = $750.00. 9 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their right to seek review. 5	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/3006625/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON MOTIONS FOR REHEARING AND EN BANC RECONSIDERATION Appellate case name: In re Prophet Ronald Dwayne Whitfield, Relator Appellate case numbers: 01-15-00657-CV & 01-15-00658-CV Trial court case numbers: 2015-08974 & 2015-22666 Trial courts: 295th & 333rd District Courts of Harris County The en banc court has voted to deny relator’s motions for second rehearing and for reconsideration en banc, construed together as his motions for en banc reconsideration of the memorandum opinion, issued on September 1, 2015, denying relator’s petitions for writs of mandamus. It is ordered that the motions for en banc reconsideration are denied. Judge’s signature: /s/ Evelyn V. Keyes  Acting for the En Banc Court* Date: October 1, 2015 * En banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Huddle, and Lloyd.	01-03-2023	10-02-2015
https://www.courtlistener.com/api/rest/v3/opinions/1028769/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6046 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADRIAN HOWARD JACKSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief District Judge. (0:98-cr-01126-JFA-2) Submitted: April 23, 2009 Decided: May 5, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Adrian Howard Jackson, Appellant Pro Se. Marshall Prince, II, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Adrian Howard Jackson appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and a subsequent order denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jackson, No. 0:98-cr-01126-JFA-2 (D.S.C. filed Dec. 18 & entered Dec. 19, 2008; filed Jan. 7, 2009 & entered Jan. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	01-03-2023	07-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/3996506/	1 Reported in 173 P.2d 188. Petitioner has filed in this court his application for a writ of habeas corpus. He alleges that he is illegally and unlawfully imprisoned in the state penitentiary. His claim is that November 20, 1943, he was charged with and tried for the crime of rape, and that the jury was discharged by the court when it reported that it could not reach an agreement. That thereafter he was brought to trial and convicted on a charge of carnal knowledge, based upon the same facts and conditions charged in the first case. It is petitioner's contention that he "was placed in double jeopardy," by being tried on two different occasions upon the same facts. A copy of the judgment was attached to the application. [1] The judgment and sentence, dated April 7, 1944, recites the facts that the petitioner was charged with, tried for, and convicted of the crime of carnal knowledge, and that he was sentenced to imprisonment in the Washington state penitentiary for a period of not more than twenty years. Facts relative to a former trial were not contained in the judgment. *Page 172 The judgment is valid and fair upon its face. It shows the compliance with all the requirements of law relative to trial, judgment, and sentence in criminal actions, and therefore is not subject to attack by petition for a writ of habeas corpus. Rem. Rev. Stat., § 1075 [P.P.C. § 58-23]; In re Grieve, 22 Wash. 2d 902, 158 P.2d 73; In re Bailleaux, ante p. 60,173 P.2d 122. The petition for writ of habeas corpus is denied. BEALS, C.J., STEINERT, MALLERY, and CONNELLY, JJ., concur.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3437565/	We find it necessary to discuss but one question: whether the plaintiff furnished a purchaser ready, able, and willing to consummate the transaction. The action is to recover the amount of an agreed commission earned. While the petition alleges a sale, the case was tried and submitted to the jury, and is submitted to this court, only as one for the recovery of a commission for finding a purchaser, and not for a commission on a sale actually consummated. The purchaser claimed to have been found was the Equitable Life Insurance Company of Iowa. The bonds in question, with other bonds, were sold under a financing contract to F.C. Hubbell. Defendant had a contract for paving in Hawarden, on which it apparently had earned a bond issue of $80,000. Hubert Everist was defendant's manager. On July 22, 1920, he wrote a letter, Exhibit A, to S.D. Mangum, who was secretary of the Iowa Association of Municipal Contractors, to the effect that defendant would have this issue December 15th, and would offer the bonds at 92 cents. The letter also referred to the proposition of another person to advance $55,000 for financing another section of the work. Plaintiff was officing with Mangum. Mangum showed the letter to plaintiff. Plaintiff interviewed F.M. Hubbell and F.W. Hubbell, who were, respectively, chairman of the board and vice president and secretary of the Equitable Life Insurance Company. The presentment to the defendant of the Equitable Life Insurance Company and of its proposal to purchase relied upon by the plaintiff is in the form of a letter, Exhibit E, by the Equitable Life Insurance Company of Iowa to the defendant, August 5, 1920, as follows: "Your favor of August 4th, with reference to the paving bonds to be issued by the City of Hawarden, has been received. Our understanding of your proposition is as follows: That you are to sell us on December 15, 1920, $80,000.00 of 6 per cent paving bonds, covering Section 2 of the Blue Print which you left at this office the bonds to be paid for at 92¢ on the dollar. This was the proposition offered to us by Mr. John MacVicar, Page 357 and we will accept the same subject to our approval of the legal status of the bonds and a satisfactory inspection of the benefited district. If this is the arrangement contemplated by you kindly advise us and we will arrange to have the district inspected within the very near future and then can enter into a definite contract for the purchase of the bonds, provided, of course, our inspection is satisfactory to us. "Awaiting your reply, we remain, "Very truly yours, "Equitable Life Insurance Company of Iowa." It will be noted that the company's alleged acceptance is stated to be "subject to our approval of the legal status of the bonds and a satisfactory inspection of the benefited district." It will be noted further that the Equitable Life Insurance Company referred the matter back to the defendant by this statement: "If this is the arrangement contemplated by you kindly advise us and we will arrange to have the district inspected within the very near future and then can enter into a definite contract for the purchase of the bonds, provided, of course, our inspection is satisfactory to us." This letter was written by F.W. Hubbell. As a witness for plaintiff, Mr. Hubbell testified that, following that correspondence: "I did not make any investigation as to the records and proceedings in these bonds. Before I heard further from Mr. Everist, he practically withdrew the offer, and said he had made other plans. * * These bonds were not purchased and never were purchased by me or through me from the Western Asphalt Paving Corporation for the Equitable Life Insurance Company of Iowa. * * * my father, F.C. Hubbell, entered into a contract with Mr. Everist to finance the work at Hawarden, and later purchased the bonds. * * * Q. At the time that letter was written by you, Mr. Hubbell, and mailed to Mr. Everist, and before any other or different arrangements were made, the Equitable Life Insurance Company of Iowa was ready, able, and willing to purchase the $80,000 bonds mentioned in that letter at 92 cents on the dollar, provided, of course, the legal status and the inspection of the district was satisfactory? A. Yes, Page 358 sir. * * The Equitable Life Insurance Company of Iowa cannot finance any job. * * * Q. As a matter of fact, you did not consider that you had entered into any contract to buy them? A. No, sir. We had only made an offer. That offer was never accepted by the defendants in this case, or any of them. * * * The fact is that neither I nor my company ever told anybody absolutely that the company would take these bonds at 92 cents on the dollar or any other sum. All that was ever said by me in that regard is contained in the letter marked Exhibit E. * * * I may have told Mr. MacVicar, subject to the approval of the district and the legal status of the proceedings, that I would take the bonds, but I cannot say definitely. * * * The investment committee [of the Equitable Life Insurance Company] agreed to take the bonds if they were satisfactory. * * * Before the Equitable Life Insurance Company would take any bonds, the legality of the bonds would have to be investigated by an attorney for the finance committee, and his approval obtained. This would have to be done, not only as to the proceedings, but as to the form. That never was done. * * * Nobody ever did go up to examine for the Equitable Life Insurance Company of Iowa in regard to these bonds on the Hawarden job, as far as I know. * * * Q. And while you didn't consider that as a binding contract, you did consider it, as you state in your deposition, as an offer on the part of the Equitable Life Insurance Company to take the $80,000 worth of bonds at 92 cents? A. Yes, sir." All street improvement bonds have the same form in the state of Iowa, practically, as far as witness knew. He said, "That was so understood at the time." Plaintiff testified that he first talked with F.M. Hubbell; left him a memorandum. Later talked with F.W. Hubbell. "On the next day after my interview with F.M. Hubbell, I called on him again, and he told me he had talked with F.W. Hubbell * * * and that the Equitable Life Insurance Company would take the $80,000 issue of bonds at 92 cents; that he could not take the $55,000 issue, for the reason that the money advanced was to carry on the work, and under the law the Equitable * * * was not permitted to advance money that way. * * * He repeated practically what F.M. Hubbell had said: that the Equitable Life Insurance Company of Iowa would take the Page 359 $80,000 worth of bonds at 92 cents, provided it was found satisfactory, — that their attorney found that the council's proceedings were regular." Plaintiff testified to a telephone conversation between Mangum and Everist, in which Mangum said to Everist: "`We have some money for you;' and then he went on to say that he had found a purchaser for the $80,000 or more of bonds. He also said that there would probably be a commission to pay. I did not hear what Everist said, but Mr. Mangum told me that he told him that he better come to Des Moines and complete the deal. He also told that the purchase was on the condition that everything was satisfactory and found to be regular. Before Mr. Everist came to Des Moines, I obtained a transcript or copies of the proceedings. * * I had this transcript taken to the office of F.W. Hubbell." After this, Everist and plaintiff had their first communication, in which plaintiff says that Everist "then agreed to pay a 2 per cent commission if I found a purchaser for the bonds." "I told him Mr. Hubbell agreed to take these bonds if the proceedings were found to be legal and regular. * * * Q. Previous to your seeing the Hubbells, as you have detailed, you had not had any conversation with Mr. Everist? A. No, sir. Q. You say that all you did in regard to selling these bonds you did before you ever saw Mr. Everist? A. Yes, sir. * * * Q. Up to that time, whatever you had done was done without any communication or agreement with Mr. Everist? A. Except the letter which Mr. Mangum showed me, Exhibit A. * * * In December, 1920, I knew the Equitable Life Insurance Company had not bought or financed the $55,000 worth of bonds. I swore to the first petition that I filed here in January, 1921. In that petition I claimed a commission on $135,000 worth of bonds. I knew that the Equitable Life Insurance Company would not take the $55,000 in bonds. * * * I did not take Mr. Everist over to the Equitable Life Insurance Company and introduce him to any of the officers." F.W. Hubbell made an investigation at Hawarden, and interviewed defendant at Sioux City. He testifies that he did not go there as an officer of the Equitable, to examine the proposition for the Equitable, and that nobody ever did, so far as he Page 360 knew. The reason he didn't go was that Everist had turned down the offer contained in the letter of August 5, 1920. Asked why the Equitable did not purchase the bonds, witness said: "Because Mr. Everist made new arrangements; thought he could complete the work on Sections 2 and 3 if he could get someone to finance it, and the Equitable Life Insurance Company of Iowa does not do any financing of that character. It can only purchase bonds that are legally issued." He says there was no money necessary to be advanced on the $80,000 bond issue prior to their delivery. They were ready for delivery without being financed. He says: "This transaction with the defendant and my father, F.C. Hubbell, was an independent and a valid contract, and he afterwards took the bonds in payment of the money which he had advanced to complete Sections 2 and 3 of the Hawarden paving." F.W. Hubbell also testified that he handled the transaction for his father, F.C. Hubbell. "Q. In connection with this investigation and going to Hawarden and these deals with Mr. Everist, for whom did you consider you were acting? A. For Mr. F.C. Hubbell." A contract dated August 12, 1920, was made between F.C. Hubbell and defendant, reciting that defendant had the paving contract with Hawarden, by the terms of which defendant was to receive cash, warrants, certificates, or bonds. By this contract defendant agreed to sell to F.C. Hubbell all of the bonds which defendant should be entitled to, for face, less discount of 11 per cent. F.C. Hubbell agreed to advance, as the work progressed, $100,000, on the statements of the city engineer, the money to be used to pay for labor and material in connection with the contract, and for no other purpose. All bonds were assigned by defendant to F.C. Hubbell, as security for payment of the amounts advanced. It is obvious that the negotiations with the Equitable Life Insurance Company were never carried to the point where that company stood in the attitude of offering to buy the bonds. The company never inspected the district, never ascertained whether the district or the bonds were satisfactory, never expressed itself as approving of the bonds or of the district. F.M. Hubbell, Page 361 F.C. Hubbell, and F.W. Hubbell were entirely distinct from the Equitable Life Insurance Company. The company was not they, and they were not the company. The inspection that was made was made for F.C. Hubbell, and for the purposes of a transaction that the Equitable Life Insurance Company could not enter into. The proposal set forth in Exhibit E was to have the district inspected, and then "enter into a definite contract for the purchase of the bonds; provided, of course, our inspection is satisfactory to us." It is elementary that, to entitle a broker to a commission for finding a purchaser, he must present either a valid obligation to buy, or must bring his employer and the proposed purchaser together, so that such a contract may be secured, if desired. "The agent only finds the purchaser by being the means of furnishing him to the principal as a buyer, to whom the sale might have been made, but for the principal's perversity; and the cases cited by appellees go no further than to hold that such perversity — i.e., refusal to sell as proposed — will not defeat the right to recover the agent's commission, as stipulated. * * * Surely, a purchaser has not been found unless the agent has been the means of procuring a person who has either bound himself in writing to buy, and advised his principal of the fact, or who has indicated his readiness to consummate the purchase to the only person who can sell. * * * Until a buyer who has obligated himself to purchase, or is ready to do so, has been proffered in some way by the agent to his principal, the contract to find a purchaser has not been fulfilled." Johnson Bros. v.Wright, 124 Iowa 61. See, also, Beamer v. Stuber, 164 Iowa 309; Allgood v. Fahrney,164 Iowa 540; Sanden Huso v. Ausenhus, 185 Iowa 389. This action is not brought to recover damages for preventing the plaintiff from performing his contract. The action is to recover a commission earned by furnishing a purchaser ready, able, and willing. The letter of the Equitable Life Insurance Company was merely a conditional offer to purchase. It was not an unqualified acceptance of any offer made by the defendant which would result in effecting contractual relations. As a proposition on its part, a formal acceptance of it by defendant would not have resulted in a contract. There was no agreement Page 362 to purchase, — nothing but a tentative offer. Batie v. Allison,77 Iowa 313; Corcoran v. White, 117 Ill. 118 (7 N.E. 525);Navarre Realty Co. v. Coale, 122 Md. 494 (89 A. 728); 1 Page on The Law of Contracts (2d Ed.), Section 74; Coffin v. City ofPortland, 43 Fed. 411; Bergmeier v. Eisenmenger, 59 Minn. 175 (60 N.W. 1097); 13 Corpus Juris 281. The Equitable Life Insurance Company made its proposition subject not only to approval of the legality of the bond issue, but to an inspection of the benefited district. The inspection was doubtless required so that the officials of the company might determine for the company whether the cost of the improvement was reasonable in proportion to benefits; whether the assessments in their opinion would or would not be excessive; whether they would probably be paid, or would be open to possible default or repudiation. In short, the company's proposal was conditioned upon the security's being ascertained by itself to be satisfactory to itself. If the proposition had been to pay $80,000 for a farm, subject to satisfactory inspection, or to make a loan of $10,000 on a farm, subject to satisfactory inspection, it would scarcely be contended that there was any contract, or that a broker who had secured such a proposition would, on that alone, be entitled to a commission. It was not merely a matter of verification. It was a matter of looking into the investment, to determine whether it was wise or safe. Hutchison v. Plant, 218 Mass. 148 (105 N.E. 1017); Damers v. Trident Fisheries Co., 119 Me. 343 (111 A. 418); Jordan v. McNally, 124 Me. 216 (126 A. 876); Anderson v.Preston (C.C.A.), 7 Fed. (2d Series) 70. Further, it was the company's thought that they then (after inspection) could "enter into a definite contract." The later negotiations between F.C. Hubbell and the defendant were for the purpose of accomplishing that which the Equitable Company could not do; were wholly independent of the previous negotiations for sale of the first bond issue. The investigation by F.W. Hubbell for F.C. Hubbell was not only for the purpose of a proposition of a different nature, and one in which the desirability of the bonds as an investment might not be so determinative, but by one who was not the Equitable Life Insurance Company, or acting for it, or, so far as shown, authorized to act for it. The acceptance of the bonds by F.C. Page 363 Hubbell was not an acceptance by the Equitable Life Insurance Company, nor even evidence that the Equitable Life Insurance Company would have accepted them. The proposal to buy $80,000 of bonds at 92 cents, as trustees, representing the policyholders, as well as the stockholders, of the life insurance company (even if F.C. and F.W. Hubbell were authorized to approve), was very different from one to purchase $135,000 at 89 cents on personal account, as a business venture in private financing. The "definite contract" which it was suggested might be made, was not made or offered. The defendant moved for the direction of a verdict, on the ground, among others, that the plaintiff had failed to show that he had produced a purchaser in the Equitable Life Insurance Company, ready, able, and willing to take the bonds, without reservations, or had offered an enforcible contract to accept and take them at the price fixed. We think the motion should have been sustained. The judgment is — Reversed. De GRAFF, C.J., and EVANS and ALBERT, JJ., concur.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/996817/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-2246 FRANKLIN COUNTY, a North Carolina Body Politic, Plaintiff - Appellee, versus GEORGE E. BURDICK; MARY K. BURDICK, Defendants - Appellants. No. 98-2247 FRANKLIN COUNTY, a North Carolina Body Politic, Plaintiff - Appellee, versus GEORGE E. BURDICK; MARY K. BURDICK, Defendants - Appellants, and BEN N. WILLIAMSON, III, Trustee; FARM CREDIT BANK OF COLUMBIA, Lienholder, Defendants. No. 98-2248 FRANKLIN COUNTY, a North Carolina Body Politic, Plaintiff - Appellee, versus GEORGE E. BURDICK; MARY K. BURDICK, Defendants - Appellants, and JOHN TANTUM, Trustee: Nationscredit Financial Services Corporation of America, Lienholder, Defendant. No. 98-2249 FRANKLIN COUNTY, a North Carolina Body Politic, Plaintiff - Appellee, versus GEORGE E. BURDICK, MARY K. BURDICK, Defendants - Appellants, and 2 BEN N. WILLIAMSON, III, Trustee: Farm Credit Bank of Columbia, Lienholder; JOHN TANTUM, Trustee: Nationscredit Financial Services Corporation of America, Lienholder, Defendants. Appeals from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. W. Earl Britt, Senior Dis- trict Judge. (CA-97-481-5-BR-3, CA-97-482-5-BR-3, CA-97-483-5-BR-3, CA-97-484-5-BR-3) Submitted: October 20, 1998 Decided: November 4, 1998 Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. George E. Burdick, Mary K. Burdick, Appellants Pro Se. Steven Hume McFarlane, Louisburg, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 3 PER CURIAM: In these four consolidated appeals, George and Mary Burdick appeal district court orders denying their motions for reconsid- eration and motions to amend their motions for reconsideration of four underlying orders remanding the four cases against them back to state court. Because the district court in this case remanded the cases on grounds expressly provided for in 28 U.S.C. § 1447(c) (1994), lack of subject matter jurisdiction, we are precluded from reviewing the remand orders, see 28 U.S.C. § 1447(d) (1994), and consequently orders denying motions for reconsideration of remand orders. We note that 28 U.S.C. § 1447(c) also authorizes the dis- trict court to require a party to pay just costs and actual expenses, including attorney’s fees. In light of the foregoing, we dismiss these four appeals for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court, and oral argument would not aid the decisional process. DISMISSED 4	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/3999920/	This action was brought for the right to be subrogated for the payment of a forfeited bail Page 195 bond and the recovery of three thousand dollars and attorney's fees. The case was tried to the court and a judgment rendered for the full amount and three hundred dollars attorney's fees. The bail bond was issued by the New Amsterdam Casualty Company, as surety, with Martin Lewis, as principal. Respondent is a Washington corporation conducting an agency for bond insurance companies. It is not authorized to write bonds in its own name, and acted as agent for the casualty company, which is authorized to do a general bonding business in this state. The agency of respondent was secured under a written agreement between it and the casualty company and a certain collateral agreement, under which respondent agrees to pay all premiums on bonds written and to hold collateral taken by respondent in connection with any bond written as security for the benefit of the casualty company, and in the event of any bond forfeited, respondent is required to pay the amount of the forfeited bond direct to the obligors of the bond. Prior to October 13, 1927, Martin Lewis, who was named as a party to this action, but never served because of his absence from the state as a fugitive from justice, had been charged with arson, convicted, and granted two new trials, in both of which the jury disagreed. Pending the third trial, Lewis disappeared, but was later apprehended and his bail exonerated. During the two trials in the superior court, appellant John F. Dore was his attorney, and on October 13, 1927, at which time Lewis was incarcerated in the King county jail, it is alleged and there is some evidence to prove that Dore applied to respondent for a bail bond. The company would not write the bond without indemnity. There is evidence tending to show Page 196 that Dore agreed that, if respondent would write the bond, he would indemnify respondent for any loss it might incur in obligating itself. On this condition, respondent, as agent for the casualty company, wrote the bail bond in the latter's name, and at the same time an indemnity agreement was signed by Lewis and also, apparently, by Dore running to the casualty company. There is a conflict in the evidence as to whether he personally conferred with the agent of respondent, or through an office assistant of his own. There is also a conflict in the evidence as to whether Dore paid to respondent the premium and service fees on the bond. There was oral testimony on behalf of respondent that it was paid by his personal check through respondent, which Dore disputed. Lewis again absconded, failed to appear for trial, and the bail bond given by the casualty company was forfeited. Upon judgment being entered on the forfeiture, demand was made upon Dore to pay the judgment, which he would not do. Execution was then issued against the casualty company on the judgment, and it, in turn, called upon respondent to make payment. Respondent paid the judgment direct to the state of Washington, the obligee, and brought this suit against Martin Lewis and Dore individually and the community composed of John F. Dore and Marian Dore, his wife. Appellant John F. Dore served and filed an answer, in which he admitted the allegation of the complaint that he had executed and delivered to the New Amsterdam Casualty Company the indemnity agreement referred to, and alleged as an affirmative defense that it was contrary to public policy and void; and further, that neither he nor the community composed of himself and wife received any consideration for the execution and delivery of the indemnity agreement. Appellant Page 197 Marian Dore served and filed an answer purporting to be on behalf of herself and for the marital community of herself and husband, in which she made a general denial of the allegations of the complaint on information and belief, and denied any information or knowledge concerning the allegations of the complaint. She alleged as an affirmative defense that the indemnity agreement was contrary to public policy and void, and that no consideration had been received for its execution. The indemnity agreement was received in evidence, and is before us. After respondent had rested its case, appellant Dore, called as a witness in his own behalf, attempted to testify that he had not signed the indemnity agreement, and that the purported signature thereto was not his. The contractual portions of the indemnity agreement are these: "FIFTH, that in the event of payment, settlement or compromise of liability, loss, costs, damages, attorneys' fees, expenses, claims, demands, suits and judgments as aforesaid, in connection with said bond or any continuation or renewal thereof, an itemized statement thereof, sworn to by the surety or the treasurer of said surety, or the voucher or vouchers or other evidence of such payment, settlement or compromise, shall be prima facie evidence of the fact and extent of the liability of the indemnitors in any and all claims or suits hereunder; . . . "SEVENTH, to waive and do hereby waive all right to claim any of their property, including homesteads, as exempt from levy, execution, sale or other legal process, under the laws of any state or states; "EIGHTH, that in case any of the Indemnitors shall fail to execute this instrument, or in case any of the Indemnitors who execute this instrument shall not be bound for any reason the other Indemnitors shall nevertheless be bound hereunder for the full amount of Page 198 liability, loss, costs, damages, attorneys' fees and expenses as aforesaid; . . . "TENTH, that this obligation shall be for the benefit of any person, company or companies that may join with the surety as co-surety or co-sureties upon such bond, continuation or renewal thereof, or that may issue reinsurance in favor of the said surety; or which, at the request of the said surety, shall execute such bond, continuations or renewals thereof;" The trial court rejected the evidence of Dore that the indemnity agreement did not bear his signature because of the state of the pleadings, in that the evidence was not within the issues. A qualified expert on handwriting was also introduced as a witness, and an offer was made to prove by the expert that he had examined the signature and compared it with many other authentic signatures of Dore, and that the signature to the indemnity agreement bears plain evidence of being forged. This evidence was also rejected as not being within the issues. [1] Although Dore had verified an answer in which he had admitted that the indemnity agreement had been signed by him, the answer having been drawn by his co-counsel during the absence of Dore in the East and his application to amend his answer and offer proof that the signature was not his, it would seem that the amendment should have been allowed and the evidence received and considered by the trial court. Pleadings have always been liberally construed and amendments liberally allowed under our code by this court, even before the taking effect of the new rules of court on January 24, 1927. The general rule in this state that amendments are allowed or disallowed in the discretion of the trial court was somewhat broadened by subdivision 2 of Rule III, 140 Wn. xxxvi, reading: Page 199 "The court, upon motion, at any stage of an action, may order or give leave to either party to alter or amend any pleading, process, affidavit or other document in the cause, to the end that the real matter in dispute, and all matters in the action in dispute, between the parties may be completely determined as far as possible in a single proceeding. But the order or leave shall be refused if it appears to the court (a) that the motion was made with intent to delay the action, or (b) that the motion was occasioned by lack of diligence on the part of the moving party and the granting of the motion would unduly delay the action or embarrass any other party, or (c) that, for any other reason, the granting of the motion would be unjust." Rem. Rev. Stat., § 308-3. There is no indication in this case that the motion was made with the intent to delay the action; or that it was occasioned by lack of diligence on the part of the moving party; or that the granting of the motion would have unduly delayed the action and embarrassed any other party; or that, for any other reason, the granting of the motion would have been unjust. We have allowed amendments of complaints, or considered them as amended at the trial, to conform to the evidence, with the utmost liberality, even in cases of trials to juries; Hahn v.Brickwell, 135 Wn. 189, 237 P. 305; and even over the strenuous objections of the adverse party; Hubbard v. HartfordFire Insurance Co., 135 Wn. 558, 238 P. 569, 240 P. 565. See, also, Pratt v. Rhodes, 142 Wn. 411, 253 P. 640,256 P. 503; Johnson v. Grays Harbor Railroad Light Co.,142 Wn. 520, 253 P. 819; Godefroy v. Reilly, 146 Wn. 257,262 P. 639; Keane v. Watson Co., 149 Wn. 424, 271 P. 73;Eastern Outfitting Co. v. Lamb, 169 Wn. 480, 14 P.2d 30. In the case last cited, we said that our practice calls for the liberal allowance of amendments in the furtherance Page 200 of justice, which principle has been frequently recognized in our decisions. Nelson v. Lewiston-Clarkston Improvement Co., 131 Wn. 235,229 P. 1027, cited and relied upon by respondent to the effect that the trial court improperly refused to allow the filing of an amended complaint, where we held that there was no abuse of discretion, was a case where the application to amend the complaint, which is the foundation of the controversy, was made in the progress of the trial after all the issues had been completed. It was also decided prior to the adoption of our quoted rule. Hepner v. Department of Labor and Industries, 141 Wn. 55,250 P. 461, where this court affirmed the lower court in refusing to permit the amendment to an answer, was also in the midst of a jury trial. We said that was especially the true rule in a jury trial. The rule of court was not then in force or invoked. For the foregoing reason, the judgment of the trial court should be reversed and remanded to permit amendment of the answer of appellant Dore and the introduction of such proffered evidence as was rejected. This, of course, would require the further reply and contravailing evidence on behalf of respondent. There remains to be said something as to the merits of the defenses of appellant. [2] If the indemnity agreement was never signed by appellant John F. Dore, then, of course, there can be no liability. On the other hand, if it was signed and is a valid instrument, being an indemnity agreement, it is a direct obligation on the part of appellant Dore. Austin v. Wright, 156 Wn. 24, 286 P. 48. That situation does not preclude respondent from being subrogated to the right of the casualty company Page 201 to recover. Subrogation is always liberally allowed in the interests of justice and equity. A party who discharges an obligation in the performance of a legal duty is entitled to be subrogated to and have the benefit of all the rights of the creditor; and where a principal, acting through an agent, stands a loss, which loss is made good by the agent, the agent is subrogated to any rights of his principal against third parties who may be obligated to reimburse the principal. Fitzpatrick v. Letten, 123 La. 748, 49 So. 494, and note in 17 Ann. Cas. 204; Hough v. Aetna Life Insurance Co.,57 Ill. 318, 11 Am. Rep. 18; Bank of Midland v. Harris,114 Ark. 344, 170 S.W. 67, Ann. Cas. 1916 B, 1255; Murrell v. Henry,70 Ark. 161, 66 S.W. 647; Freeburg v. Eksell, 123 Ia. 464,99 N.W. 118; Stoddart v. Black, 134 Kan. 838, 8 P.2d 305; Nettletonv. Ramsey County Land Loan Co., 54 Minn. 395, 56 N.W. 128, 40 Am. St. 342. [3] Regarding the liability of the marital community consisting of John F. Dore and Marian Dore, Dore was engaged in the general practice of law in Seattle. The ordinary business of a married man is presumed to be community business. Dore received either five hundred dollars or seven hundred and fifty dollars as attorney fees in the defense of Lewis. Whatever he did outside the regular business of an attorney at law in behalf of Lewis must be considered to have been something that he considered necessary for a proper defense. The fact that the marital relation exists and that the business conducted by a husband is his ordinary business, of necessity, raises the presumption that the business is a community business. Henrickson v. Smith, 111 Wn. 82,189 P. 550. The fact that no profit resulted to the community Page 202 from the transaction in regard to the indemnity bond is immaterial. Henning v. Anderson, 121 Wn. 53, 207 P. 1048;McNamara v. Gerbel, 167 Wn. 56, 8 P.2d 1001. Kanters v. Kotick, 102 Wn. 523, 173 P. 329, and like cases, based upon contracts of indemnity or guaranty outside of, and not in the course of, the regular business of a husband, but as a matter of pure accommodation, have no force in such a case as this. We conclude, therefore, that the interests of justice and equity require that the amendment and the proffered evidence be allowed, and the case is remanded for the sole purpose of permitting the answer of appellant John F. Dore to be amended and evidence received thereunder after the issues have been made by respondent, in order to ascertain whether the indemnity agreement was the agreement of John F. Dore, and therefore bound him and the marital community of both appellants. Appellants shall recover costs of appeal. BLAKE and GERAGHTY, JJ., concur. BEALS, C.J., and TOLMAN, J., concur in the result. *Page 203	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3999923/	1 Reported in 125 P.2d 291. In 1927, Andrew H. Phillips acquired a section of wheat land in Adams county, which was to have been offered for sale by the county October 17, 1936, for tax delinquency in the amount of $902.67. The sale could be postponed if $298.60 were paid prior to October 17, 1936. Phillips' endeavors to obtain a loan in the amount of $298.60 on the property from a number of banks and from a number of his neighbors, were unsuccessful. October 15, 1936, two days before the property was to be sold at tax sale, Phillips called Page 441 on W.L. Wenzelburger, who resided about five miles from the land in question, informed him of his predicament, and requested a loan in the amount of $298.60. Wenzelburger testified that Phillips also offered to sell the property to him. Wenzelburger expressed a lack of interest in the matter of purchasing Phillips' section of land, and stated that he did not have any money but that his sister-in-law, Louise Blaser, who worked and lived in the Wenzelburger home, might lend $298.60 to Phillips. Following her discussion of the subject with Wenzelburger and Phillips, Miss Blaser agreed to advance $298.60 to Phillips. October 16, 1936, about 3:30 p.m., Miss Blaser, Wenzelburger, and Phillips went to the office of an attorney, who was also a notary, in Ritzville, who prepared in longhand a quitclaim deed and took Phillips' acknowledgment thereto. That instrument recites that Phillips quitclaims unto Louise Blaser (mistakenly spelled "Balser") Phillips' section of land for a consideration of one dollar and other valuable consideration. Contemporaneously with the execution of the quitclaim deed, Miss Blaser and Phillips entered into a written agreement for the sale of the section of land in question by Miss Blaser to Phillips for $598.50, payable on or before November 1, 1937. The agreement provides that, unless Phillips pays $598.50 to Miss Blaser on or before November 1, 1937, the contract shall be void but that, in the event Phillips pays to Miss Blaser $598.50 prior to November 1, 1937, Miss Blaser will execute a quitclaim deed to the land in favor of Phillips. Immediately after the execution of the two instruments, Phillips, Blaser, and Wenzelburger went to the office of the county treasurer, to whom Phillips paid $298.60 by check from Wenzelburger to Phillips in that amount. The county treasurer issued a receipt to Phillips and sale of the land for taxes was averted. The Page 442 quitclaim deed was placed of record the same afternoon with the county auditor for Adams county. The contract was never recorded. April 20, 1937, Phillips, who at all times remained in possession of the land, exercised the right of leasing the land to Colley Brothers. Under the terms of that written lease, the lessees were obligated to farm the land and pay to Phillips a rental of one-sixth of the grain crop. That the Colley Brothers were on the land was known to the Wenzelburgers and Miss Blaser. Prior to his purchase of the land from Miss Blaser, E.A. Edwards knew that Colley Brothers were farming the land under a lease from Phillips. October 29, 1937, by check in the amount of $494.96 on his account with the First National Bank of Lind, Wenzelburger paid to the county treasurer for Adams county taxes due on the section of land in question. A few days thereafter, Blaser and Wenzelburger commissioned a realtor at Connell to sell the subject matter of this controversy for four thousand five hundred dollars, which was reduced to four thousand dollars under an agreement with E.A. Edwards to pay cash therefor. The attorney who examined the abstract for Edwards, advised the execution of a new deed from Phillips to Blaser showing the grantor was a bachelor, that Miss Blaser was a spinster, and that the true name of the grantee was "Blaser," not "Balser." The deed from Miss Blaser to E.A. Edwards was executed January 17, 1938. A corrected quitclaim deed was presented to Phillips for signature but he refused to execute same. An attorney took the original deed, which was written in longhand on a form October 16, 1936, struck the words "single man" and wrote the word "bachelor" after the name of A.H. Phillips. He changed the name from "Balser" to "Blaser," struck the words "single Page 443 woman," and wrote the word "spinster" following the name of the grantee. In the body of that instrument, above the signature of Phillips and without the latter's knowledge or consent, and with knowledge at the time that Phillips refused to make a new deed, the attorney wrote the following in longhand, which statement was written in the deed at the request of Louise Blaser and, of course, purports to be the statement of the grantor: "(It is the intention of this deed to correct spelling of the name of the grantee in that certain deed recorded in Book 56 of Deeds at page 272-3 of the records of the County Auditor of Adams County, Washington, in which said deed the surname of the grantee, was given as "Balser" instead of "Blaser," that the mispelling of the name of the grantee was an error of the scrivener.)" After this unauthorized correction of the original deed, it was refiled February 24, 1938. The abstract of title to the property was continued, containing this refiled deed at page fifty-five of the abstract, and was presented to Edwards' attorney as the duly acknowledged deed of Phillips. Edwards and his attorney had notice in the abstract, before sale by Blaser to Edwards was consummated, that this so-called new deed which was required by Edwards was not a new deed; it bore the same acknowledgment of October 16, 1936. When the option to sell the property to E.A. Edwards was signed, Edwards gave one check, dated November 17, 1937, in the amount of one hundred dollars payable to Wenzelburger and another in the amount of one hundred dollars payable to the realtor. On completion of the transaction, another check was given by Edwards in the amount of six hundred dollars and a draft in the amount of thirty-two hundred dollars, both of which were delivered to the attorney for Miss Blaser and Wenzelburger, making the cash consideration for the sale four thousand dollars. The checks, with the Page 444 exception of the one to the realtor and the draft, were all handled by Wenzelburger. Five days prior to closing the transaction between Edwards, Blaser, and Wenzelburger, those three persons discussed the question of Phillips' ownership of the land, but despite the information he had, Edwards paid the consideration to Blaser and Wenzelburger. An action was instituted by Phillips to have his quitclaim deed and the contemporaneously executed contract construed as a mortgage, and his title to the section of land in question quieted. Wenzelburger and wife are residents of the state of California. Following service upon them of summons and complaint in that state, they made a general appearance to the action by filing their demurrer. Subsequently they vainly attempted to disclaim any interest in the land. The cause was tried to the court, which entered a judgment in favor of Phillips against the Wenzelburgers, Blaser, and Edwards, who actually received rental from the property, but provided that, upon payment of the rental money into the clerk's office, the Wenzelburgers and Blaser should have a lien upon that portion which they had expended for taxes (and legal interest thereon) represented by Wenzelburger's checks in the amounts of $298.60 and $494.96; and gave Wenzelburgers and Blaser credit to that extent on the four thousand dollar judgment against them in favor of Edwards. The Wenzelburgers and Louise Blaser appealed from that judgment. Counsel for appellants argue that respondent Phillips failed to sustain the burden of proof that the transaction was a mortgage instead of a sale with option to repurchase the premises on or before November 1, 1937, by payment of a bonus of three hundred dollars to Miss Blaser for the amount of $298.60 advanced by Page 445 her to Phillips to enable him to prevent sale of his property for taxes. [1] The evidence is clear and convincing that the Wenzelburgers and Miss Blaser made a loan to respondent Phillips, and that there was no intention on the part of the lenders and the borrower that the transaction be an absolute sale rather than an equitable mortgage. To hold otherwise would permit the exaction from Phillips of usurious interest or defeat his equity of redemption and force him to relinquish his rights in the real property without consideration, which would be unconscionable. [2] In Collins v. Denny Clay Co., 41 Wn. 136,82 P. 1012, we held, in harmony with the weight of authority, that a mortgagor cannot through any device bargain away his right of redemption at the time of giving the mortgage; that, while a mortgagor may release his equity of redemption to the mortgagee by subsequent agreement, the courts look upon such agreements with distrust, and, if it appears that the mortgagee took advantage of the necessities of the mortgagor, or that the consideration for such release of the mortgagor's equity of redemption is grossly inadequate, the release will be disregarded and the original relationship of the parties held to continue. [3] No other reasonable conclusion may be drawn from the facts in this case than that Wenzelburger and Miss Blaser endeavored to take advantage of the necessitous circumstances of respondent Phillips. The evidence is conclusive that the alleged consideration of $298.60 advanced to Phillips is grossly inadequate. While the section of land was idle for a number of years and Phillips had difficulty in obtaining a loan thereon of three hundred dollars to avert tax foreclosure, appellants had no difficulty in selling the same property Page 446 to Edwards for cash in the amount of four thousand dollars. In Hoover v. Bouffleur, 74 Wn. 382, 133 P. 602, plaintiff, who owned real property, valued in excess of four thousand dollars, which was subject to a mortgage in the amount of two thousand dollars in arrears, attempted, as in the case at bar, to borrow two hundred and fifty dollars to meet overdue installments on the mortgage. Defendant lender testified that he refused to make a loan upon the property but that he informed plaintiff that he would buy the property, advance the two hundred and fifty dollars, and give plaintiff an option to repurchase the property within three months upon payment of three hundred and twenty-five dollars. A deed was executed by the plaintiff conveying the property to defendant subject to the unpaid balance of the mortgage and then an option to repurchase the property was executed. In the case at bar, Phillips executed a quitclaim deed to Blaser and signed a contract in which he promised to buy the land. There was no mention of an option to repurchase. Appellant in that case relied, as appellants in the case at bar rely, upon certain well-settled principles of law. That is, the integrity of a deed is such that, to overcome its terms, testimony must be clear and convincing; that the mere option to purchase will not in itself make a deed a mortgage. Johnson v. National Bank of Commerce, 65 Wn. 261,118 P. 21, L.R.A. 1916B, 4, was cited by appellant in Hoover v.Bouffleur, supra, and is cited by counsel for appellants in the case at bar in support of their contention. The following language from our opinion in Hoover v. Bouffleur, supra, is a complete answer to the argument of appellant in the case at bar, as it was to appellant in the case cited: Page 447 "Appellant has emphasized that part of the opinion in the case of Johnson v. National Bank of Commerce, supra, wherein we said: "`We think the better rule is that where there is a deed absolute in form, either with or without a contemporaneous agreement for a resale of the property, there being nothing uponthe face of the collateral papers to show a contrary intent, the presumption of law, independent of evidence, is that the transaction is what it appears to be, and that he who asserts the writing should be given a different construction, must show, by clear and convincing evidence, that a mortgage and not a sale with the right to repurchase was intended.' "We may adopt this expression as a fair statement of the general rule, but it was not our intention to hold that the intent of the parties must necessarily appear upon the face of the collateral paper. To do so would kill that true spirit of equity with which a court should approach cases of this kind. "Viewing the case at bar from all its angles and taking it by its four corners, we have no doubt that the transaction was conceived and carried out with purpose to evade the law designed to prevent the taking of usury. The record shows what seems to be a studied effort on the part of the defendant to bring himself within certain expressions of this court as he has gathered them from our written opinions. `That a deed regular in form is presumptive evidence of the highest character, that it voices the intention of the parties,' that `evidence relied on to prove that a deed is in fact a mortgage must be clear, cogent and convincing;' that `the evidence must show that it was intended by both of the parties;' that `a deed will not be held to be a mortgage when it appears that the grantee had declined to make a loan upon the property;' and that `a deed will be held to be absolute where there is nothing upon the face of the collateral papers to show a contrary intent.' All of these expressions will be found in the cases hereinbefore cited. The statements were pertinent at the time they were employed, but an examination of the cases will show that they were applied as governing rules where there was no such lack of Page 448 consideration as would shock the conscience, or the case was so wanting in equity or the equities were so balanced as to compel us to look to the instruments alone for guidance. It is certain that we never intended to mark a path around the statutes designed to protect the necessitous borrower from the exactions of those who are disposed to take unlawful return for a loan or forbearance of money." Miss Blaser's statement that she charged a rate of interest in excess of one hundred per cent on the money advanced to Phillips, entitled the latter to the protection of a court of equity. The evidence is overwhelming that appellants not only endeavored to defeat the equity of redemption to which respondent mortgagor is entitled as of right, but that in doing this they imposed the payment of an usurious interest rate upon him. Hoover v.Bouffleur, supra, and the case at bar, on principle, are indistinguishable. See, also, Beverly v. Davis, 79 Wn. 537,140 P. 696, to the effect that a deed with a mere option to repurchase will be construed as a mortgage where there was an existing disparity between the value of the land and the amount of the indebtedness. [4] The trial court correctly found that the original transaction was an arrangement to secure repayment of money borrowed instead of a sale, that the subsequent purchaser (Edwards) from the equitable mortgagee (Blaser) was not a purchaser in good faith, and then proceeded to place the parties in status quo. The statute (Rem. Rev. Stat., § 406 [P.C. § 8079]) grants to the superior court authority to enter a judgment which will determine the ultimate rights of all the parties to the action. "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the Page 449 parties on each side, as between themselves." Rem. Rev. Stat., § 406. [5] So, too, the case at bar is of equitable cognizance, and when equity assumes jurisdiction over the subject matter of the action and the parties to be affected by its decree, it will retain jurisdiction for all purposes. Income Properties Inv.Corp. v. Trefethen, 155 Wn. 493, 284 P. 782; Island Countyv. Calvin Phillips Co., 195 Wn. 265, 80 P.2d 840. [6] Wenzelburger and wife were nonresidents of this state at the time they were served with summons and complaint. They voluntarily consented to the jurisdiction of the court by making a general appearance. Subsequent to filing their demurrer to the complaint, they endeavored to disclaim any interest in the real property in controversy for the undoubted purpose of preventing the entry of a personal judgment against them. The court, having acquired jurisdiction over the persons of Wenzelburger and wife, could retain jurisdiction in order that a complete remedy might be afforded to all parties to the action. The judgment is affirmed. ROBINSON, C.J., MAIN, STEINERT, and DRIVER, JJ., concur. Page 450	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2897615/	NO. 07-07-0442-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 10, 2008 ______________________________ MARK EDWARD HENDERSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT OF HUTCHINSON COUNTY; NO. 34,675; HONORABLE FAYE BLANKS, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. PERMANENT ABATEMENT Â Â Â Â Â Â Â Â Â Â Â Â Appellant was convicted of deadly conduct and assessed punishment at two years probation. After a revocation hearing, appellant was sentenced to 180 days in the county jail and a fine of $1500. Appellant perfected an appeal, but a mandate has not yet been issued by this court. Â Â Â Â Â Â Â Â Â Â Appellantâs counsel has filed a Motion for Permanent Abatement of Appeal indicating that appellant is now deceased. The death of the appellant during the pendency of his criminal appeal deprives this court of jurisdiction. Freeman v. State, 11 S.W.3d 240 (Tex.Crim.App. 2000); Ryan v. State, 891 S.W.2d 275 (Tex.Crim.App. 1994); Tex. R. App. P. 7.1(a)(2). The proper action is abatement of the appeal. See Tex. R. App. P. 7.1(a)(2). Â Â Â Â Â Â Â Â Â Â Accordingly, appellantâs counselâs motion is granted and this appeal is permanently abated. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice Do not publish. residence, but when no one answered the door they drove to appellant's house. After Fidencio changed his clothes and shoes, the two "kicked back and smoked a cigarette." Thereafter, with Fidencio at the wheel, they drove to a friend's house in the victim's car looking for Adrian. Although their friend was not home, he was on the phone speaking with his sister and appellant was allowed to speak with him. He asked appellant to come pick him up at a residence in the neighborhood. Appellant drove the victim's car with Fidencio in the front seat. Meanwhile, the victim's stepfather and sister, together with Adrian, became concerned that the victim had not returned home and called the police and went out looking for her. While they were driving in the neighborhood, they noticed the car the victim had been driving pass them in the opposite direction and turned and followed. Unaware who was following, appellant tried to get away, but ran over a curb and sustained a flat tire. After Adrian got out of the car and demanded to know the victim's whereabouts, Fidencio fled on foot and appellant took Adrian aside and told him everything that had happened, including that the victim was "somewhere down by the tracks." According to Officer Greg Pace, he was dispatched to the crime scene at 4:25 a.m. Although it was dark outside, the spotlight on the train aided him in observing an individual walking on the tracks toward the train. He identified the person as Adrian and testified he was "distraught and upset." A few minutes later he observed another person tracing Adrian's steps along the tracks. That person was identified as appellant and both he and Adrian were placed in patrol cars until the investigation was concluded. By his first and second points of error, appellant contends the evidence is legally and factually insufficient to establish that he intentionally and knowingly caused the death of the victim while in the commission of the felony offense of robbery. We disagree. When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2002); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting a legal sufficiency review, we examine the verdict, after viewing the evidence in the light most favorable to the prosecution, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988). The standard of review is the same for direct and circumstantial evidence cases. Butler v. State, 769 S.W.2d 234, 238 (Tex.Cr.App. 1989), overruled on other grounds, Geesa, 820 S.W.2d at 161. After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record clearly demonstrates a different result is appropriate, we must defer to the jury's determination. Id. at 8. Before determining whether the evidence is legally sufficient to sustain the conviction, we must review the essential elements the State was required to prove. Capital murder requires proof that appellant intentionally or knowingly caused the death of an individual in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. Â§Â§ 19.03(a)(2) and 29.02(a) (Vernon 1994); see also Hall v. State, 970 S.W.2d 137, 140 (Tex.App.-Amarillo 1998, pet. ref'd) (noting that capital murder requires proof of, among other things, that the defendant killed the decedent and intended to obtain or maintain control of the decedent's property prior to or during the killing). The point at which the accused developed the requisite intent for robbery is critical, for it must show that he intended to take the victim's property before, or as, he murdered. Id. Evidence that shows the taking of property was an afterthought is insufficient to support a capital murder conviction. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Cr.App. 1995) (en banc). However, the evidence is sufficient if the State proves that the robbery of the victim occurred immediately after the murder of the victim. Nelson v. State, 848 S.W.2d 126, 131-32 (Tex.Cr.App. 1992) (en banc), cert. denied, 510 U.S. 830, 114 S. Ct. 100, 126 L. Ed. 2d 66 (1993). If the State proves that the requisite intent was present, it has proven that a murder occurred in the course of robbery, even though the element of appropriation occurred after the murder. Id. Additionally, in determining what appellant's intent was at the time, the fact finder is free to look to the conduct of the accused and make reasonable inferences therefrom. Robertson v. State, 871 S.W.2d 701, 705-06 (Tex.Cr.App. 1993), cert. denied, 513 U.S. 853, 115 S. Ct. 155, 130 L. Ed. 2d 94 (1994). Appellant urges that the State failed to prove beyond a reasonable doubt that he had the culpable mental state of intentionally and knowingly committing murder while in the course of robbery. Murder, intentionally or knowingly, is a result oriented offense. Cook v. State, 884 S.W.2d 485, 490 (Tex.Cr.App. 1994). The accused must have intended the result, death, or have been aware that his conduct was reasonably certain to cause that result. Id. Section 6.03 of the Texas Penal Code defines intentionally and knowingly as follows: (a) A person acts intentionally . . . with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. (b) A person acts knowingly . . . with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly . . . with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. In determining the legal sufficiency of the evidence to show appellant's intent or knowledge, and faced with a record that supports conflicting inferences, we must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution. Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.--Fort Worth 1999, pet. ref'd), citing Matson v. State, 819 S.W.2d 839, 846 (Tex.Cr.App. 1991). Further, in circumstantial evidence cases it is not necessary that every fact point directly and independently to the accused's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1579, 128 L. Ed. 2d 222 (1994); Armstrong v. State, 958 S.W.2d 278, 283 (Tex.App.--Amarillo 1997, pet. ref'd). After leaving the crime scene with police, appellant voluntarily gave a written and oral statement. According to Patrol Sergeant Paul Horn, who conducted the interview, appellant was "anxious to talk" and after his rights were administered, he gave his statement. He also consented to the taking of his blood, dental impression, and hair samples. Upon learning that an impression of a footprint on the victim's shirt might match his shoe, appellant conceded that he helped drag the victim's body across the barbed wire fence and onto the tracks and that he might have inadvertently stepped on her. By his statements, appellant implicated Fidencio as the instigator and described his participation as being in the wrong place at the wrong time. The State established that appellant was with the victim in her car when she was beaten unconscious. According to appellant, there was a massive amount of blood in the car. The evidence also showed that appellant participated in dragging the victim over the barbed wire fence and laying her body across the railroad tracks. The medical examiner that performed the autopsy testified that the victim's body was received in four pieces and sustained a total of 86 injuries by amputation and blunt force trauma. After his examination he concluded that the victim was still alive when she was placed on the tracks. He described a series of abrasions and linear scratches consistent with being dragged over a barbed wire fence. Numerous bruises were explained and the victim's black eyes were described as being enhanced by a factor of ten over injuries sustained from a fist fight. The examiner testified about multiple internal injuries, but noted that the only life threatening injury was to the liver. He was unable to determine whether the victim's brain injury could have been fatal because it was so distorted by the train overrun. He concluded that the cause of death was multiple blunt force trauma due to beatings and trauma caused by the train overrun. Further, he explained that the manner of death was a homicide, which he described as a death occurring at the hands of another through intent or negligence. By cross-examination, the defense attempted to establish that because the only life threatening injury to the victim was sustained by her liver, the superceding cause of death was attributable to the train. However, appellant should have been aware that the victim's death would result from his conduct in helping drag the badly beaten and unconscious victim over the barbed wire fence and placing her on the railroad tracks. Appellant was driving the victim's car when he was pursued by her stepfather, sister, and Adrian, and the victim was not in the car. The victim's stepfather testified that appellant did not have permission to drive the car. By his oral statement, appellant claimed that as the victim was being beaten she yelled, "You can take it. You can have the car. You can have whatever you want. Just don't hurt me." An inmate with whom appellant was transported to the courthouse testified that appellant told him that he and Fidencio killed the victim to steal her car for the stereo. Appellant's conduct and the reasonable inferences therefrom show that appellant intended to steal the car while the victim was being beaten, and the car was in fact stolen immediately after the victim was placed on the tracks. Hall, 970 S.W.2d at 140. There is no evidence to show that the victim's car was stolen as an afterthought. Thus, the combined and cumulative force of all the incriminating circumstances establish that the evidence is legally sufficient to support appellant's conviction for capital murder. Point of error one is overruled. Having concluded that the evidence is legally sufficient to support the verdict, we must now determine, after a neutral review of all the evidence, whether it is factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact finder to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong, 958 S.W.2d at 284. Although conflicting at times, the evidence established that appellant was in the car when the victim was beaten unconscious. Appellant also admitted that he participated in dragging the victim over the barbed wire fence and in helping place her body over the railroad tracks in a manner that was certain to cause death. He drove her car without consent and told a third person that he and Fidencio intended to steal the car to retrieve the stereo. Based on the foregoing evidence, we do not find that the verdict is so contrary to the overwhelming weight of the evidence as to require a different result. Accordingly, reviewing the evidence under Johnson, 23 S.W.3d at 11, and without substituting our own judgment, we conclude that the evidence is factually sufficient to support the verdict. Point of error two is overruled. By his third point of error, appellant asserts the trial court erred in applying the balancing test of Rule 403 of the Texas Rules of Evidence and admitting into evidence photographs labeled State's Exhibits 154, 143, 168, 161, 149, 85, 84, 77, 152, 144, 166, and 165 contending they were more prejudicial than probative. We disagree. The admission of photographs into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Cr.App. 2000). Rule 403 provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." The rule creates a presumption of admissibility of all relevant evidence and authorizes the trial court to exclude such evidence only when there is a "clear disparity between the degree of prejudice of the offered evidence and its probative value." Mozon v. State, 991 S.W.2d 841, 847 (Tex.Cr.App. 1999). In reviewing the trial court's balancing test determination, a reviewing court is to reverse the trial court's decision "rarely and only after a clear abuse of discretion." Mozon, 991 S.W.2d at 847, citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Cr.App. 1991) (op. on reh'g). The trial court's ruling must be measured against the relevant criteria by which a Rule 403 decision is made. Montgomery, 810 S.W.2d at 392. The relevant criteria include: (1) how compelling the extraneous offense evidence serves to make a fact of consequence more or less probable-a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the offense; (2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way"; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent's need fo this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Cr.App. 1997), citing Montgomery, 810 S.W.2d at 389-90; see also Long v. State, 823 S.W.2d 259, 270, cert. denied, 505 U.S. 1224, 112 S. Ct. 3042, 120 L. Ed. 2d 910 (1992) (noting that the prejudicial effect of photographs may also be determined by the number of exhibits offered, their gruesomeness, detail, and size, whether they are black and white or color, whether they are close-up, and whether the body is clothed). Appellant complains about the following autopsy photographs admitted into evidence: No. 154-left eye depicting hemorrhage; No. 143-right eye depicting hemorrhage; No. 168--upper torso depicting site of decapitated head and severed left shoulder; No. 161-back side of torso depicting scratches on buttocks and severed left arm; No. 149-back side of legs depicting scratches; No. 85-severed lower left arm; No. 84-right arm and hip area depicting scratches and bruising; No. 77-legs depicting wounds and pink ankle cord on left ankle; No. 152-decapitated head depicting tearing of scalp and exposed brain matter; No. 144-decapitated head and exposed brain matter with measuring device; No. 166-decapitated head with a left side view; and No. 165-decapitated head with view from chin and throat. Without authority, appellant argues that autopsy photographs should not be admitted into evidence when an alternative method such as a drawing can be used to aid the trier of fact. However, autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex.Cr.App. 1998). None of the photographs admitted into evidence reflect mutilation from the autopsy. At the time the exhibits were offered by the State, appellant objected on Rule 403 grounds. After the exhibits were admitted, the medical examiner explained the necessity of the photographs to assist in his testimony of the different injuries the victim sustained to multiple parts of her body. Although exhibits 152 and 144 both depict the victim's decapitated head and exposed brain matter, the medical examiner explained that exhibit 152 showed more of the full frontal face and the top surface of the head while exhibit 144 illustrated the injuries the victim sustained to the side of her head. According to the medical examiner, the exhibits showing different views and aspects of the victim's body parts were necessary to assist him in differentiating between the numerous injuries. Although some could have been considered repulsive, "they portrayed no more than the gruesomeness of the injuries inflicted." Wyatt, 23 S.W.2d at 30. Where, as here, there was no direct evidence that appellant caused the victim's death, the photographs of the injuries sustained by the victim served to make a fact of consequence, i.e., appellant's intent to cause the victim's death by blunt force trauma, more probable. Thus, not only was the evidence relevant, the State also established a need for the evidence. Appellant has failed to show that the prejudicial impact of the autopsy photographs outweighed their probative value. We find that the trial court did not abuse its discretion in admitting the 12 photographs of which appellant complains. Point of error three is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. 1. Fidencio Flores was also convicted of the capital murder of the 19-year old victim, and by opinion dated June 22, 2000, his conviction was affirmed. 2. The victim was Adrian's former girlfriend and the two remained friends.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2884065/	In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00017-CV ______________________________ A. E. SMITH AND EDITH A. SANDERS, Appellants V. CITY OF MOUNT PLEASANT, TEXAS, AND JERRY BOATNER, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF MOUNT PLEASANT, TEXAS, Appellees On Appeal from the 76th Judicial District Court Titus County, Texas Trial Court No. 32,586 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION A. E. Smith and Edith A. Sanders, appellants, have filed with this Court a motion to dismiss the pending appeal in this matter. They represent to this Court that the parties have reached a full and final settlement. In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot. We grant the motion and dismiss this appeal. Bailey C. Moseley Justice Date Submitted: February 11, 2008 Date Decided: February 12, 2008 2	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2899906/	NO. 07-09-0006-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 16, 2009 ______________________________ IN RE BARRY DWAYNE MINNFEE, Relator _________________________________ Opinion on Original Proceeding for Writ of Mandamus _________________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is the petition from Barry Dwayne Minnfee requesting that we issue a writ of mandamus against the Honorable Don Emerson, district judge of the 320 th Judicial District. This is one of many which he has filed to date. Furthermore, the petition deals with his purported motion to secure DNA testing and the appointment of legal counsel to represent him in that matter as well as others. The petition is not verified; nor does it contain a prisoner’s statement indicating that the factual allegations contained therein are accurate. Nor is a copy of the alleged motion for DNA testing attached to or included with the petition. Similarly missing is any explanation as to 1) why he believes himself entitled to such testing under article 64 of the Texas Code of Criminal Procedure or 2) why our ordering the trial judge to undertake that which he requests would not be tantamount to ordering the trial court to engage in frivolous acts and the needless waste of limited judicial resources. Additionally, Minnfee asks us to order the trial court to determine that he is an indigent entitled to appointed counsel. Yet, that we cannot do for we cannot tell a trial judge how to rule on motions pending before them before the trial judge himself rules on them. See O'Donniley v. Golden , 860 S.W.2d 267, 269 (Tex. App. – Tyler 1993, orig. proceeding) . Consequently, the petition for writ of mandamus is denied. Per Curiam	01-03-2023	09-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/4538750/	[Cite as Price v. Price, 2020-Ohio-3173.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT ANGELA PRICE : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DAVID PRICE : Case No. 2019 CA 00152 : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 2018 DR 00043 JUDGMENT: Affirmed DATE OF JUDGMENT: June 2, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant GREGORY J. RUFO STANLEY R. RUBIN 101 Central Plaza South 437 Market Avenue North Suite 600 Canton, OH 44702 Canton, OH 44702 Wise, Earle, J. {¶ 1} Defendant-Appellant, David Price, appeals the September 23, 2019 judgment entry of the Court of Common Pleas of Stark County, Ohio, Domestic Relations Division, finding him in contempt for failing to pay spousal support. Plaintiff- Appellee is Angela Price. FACTS AND PROCEDURAL HISTORY {¶ 2} The parties herein were granted a divorce on October 26, 2018. Pursuant to stipulations filed same date, the parties agreed on spousal support. Appellant was to pay appellee $2,708.33 in two equal installments on the first and fifteenth of each month for the remainder of the 2018 calendar year. The trial court retained jurisdiction as to the amount of spousal support, but not as to the duration which was set at fifty-four months. {¶ 3} Immediately following this stipulation, the parties amended the stipulation on spousal support.1 Appellant agreed to pay appellee $2,708.33 per month. However, appellant was to pay $1,083.33 in two equal installments on the first and fifteenth of each month for the remainder of the 2018 calendar year. Upon receipt of his bonus in May or June, appellant would pay the difference of $1,625.00 (the difference between $2,708.33 and $1,083.33 for each month of appellant's spousal support obligation). Again, the trial court retained jurisdiction as to the amount of spousal support, but not as to the duration which was set at fifty-four months. {¶ 4} In December 2018, appellant lost his job and a month later, found a new job earning less. He started paying appellee $833.00 per month. On January 29, 2019, 1According to appellee's brief at 5, this amended stipulation was inadvertently not filed at the time, but was filed on September 11, 2019. T. at 76-77. appellant filed a motion to modify his spousal support obligation. On May 2, 2019, appellee filed a motion to hold appellant in contempt for failing to pay the full spousal support amount. A hearing was held on September 5, 2019. By judgment entry filed September 23, 2019, the trial court denied the motion to modify and found appellant in contempt. {¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶ 6} "THE TRIAL COURT ERRED IN FINDING THE HUSBAND IN CONTEMPT FOR FAILING TO PAY AN AMOUNT OF SPOUSAL SUPPORT IN 2019 THAT THE PARTIES AGREED WOULD EXPIRE AT THE END OF 2018." I {¶ 7} In his sole assignment of error, appellant claims the trial court erred in finding him in contempt for failing to pay spousal support. We disagree. {¶ 8} As explained by our colleagues from the Fourth District in McDonald v. McDonald, 4th Dist. Highland No. 12CA1, 2013-Ohio-470, ¶17-18: Civil contempt exists when a party fails to do something ordered by a court for the benefit of an opposing party. Pedone v. Pedone, 11 Ohio App.3d 164, 165, 463 N.E.2d 656 (1983); Beach v. Beach, 99 Ohio App. 428, 431, 134 N.E.2d 162 (1955). The punishment is remedial, or coercive, in civil contempt. State ex rel. Henneke v. Davis, 66 Ohio St. 3d 119, 120, 609 N.E .2d 544 (1993). In other words, civil contempt is intended to enforce compliance with a court's orders. The party seeking to enforce a court order must establish, by clear and convincing evidence, the existence of a court order and the nonmoving party's noncompliance with the terms of that order. Wolf v. Wolf, 1st Dist. Hamilton No. C-090587, 2010-Ohio-2762, 2010 WL 2473277, ¶ 4; Morford v. Morford, 85 Ohio App. 3d 50, 55, 619 N.E.2d 71 (4th Dist.1993). {¶ 9} "Clear and convincing evidence" is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 10} "Once the prima facie case has been established by clear and convincing evidence, the burden shifts to the non-moving party to either rebut the initial showing of contempt or establish an affirmative defense by a preponderance of the evidence." Allen v. Allen, 10th Dist. Franklin No. 02AP-768, 2003-Ohio-954, ¶ 16. "Preponderance of the evidence" means evidence that is "more probable, more persuasive, or of greater probative value." In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7. {¶ 11} We will review a trial court's decision on contempt under an abuse of discretion standard. Wadian v. Wadian, 5th Dist. Stark No. 2007CA00125, 2008-Ohio- 5009, ¶12, citing In re Mittas, 5th Dist. Stark No. 1994 CA 00053, 1994 WL 477799 (Aug. 6, 1994). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983). {¶ 12} Appellant argues the trial court erred in finding him in contempt because he was obligated to pay $2,708.33 for the remainder of 2018 only and appellee was required to return to court to establish the amount of spousal support for 2019. Therefore, appellant cannot be held in contempt for noncompliance of a court order that did not exist. {¶ 13} The stipulation at issue states the following (filed September 11, 2019): Defendant shall pay as and for spousal support to the Plaintiff the sum of $2,708.33 which is based upon Defendant's earnings of $110,000.00 per/year and Plaintiff's earnings of $36,000.00 per/year. Defendant shall pay $1,083.33 in two (2) equal installments on the 1st and 15th of each month, commencing upon the journalization of the Final Decree of Divorce in this matter. Defendant shall pay the aforementioned amount of spousal support to Plaintiff for the remainder of the 2018 calendar year. Upon Defendant's receipt of his bonus from his employer in May or June of each year, he will pay Plaintiff the difference of $1,625 (the difference between $2,708.33 and $1,083.33) for each month of Defendant's spousal support obligation. The Court shall retain jurisdiction as to the amount of spousal support but the Court shall not retain jurisdiction as to the duration of Defendant's spousal support obligation which the parties hereto stipulate shall be 54 months, commencing with the date of Defendant's first spousal support payment to Plaintiff, terminable upon death or remarriage. (Emphasis added.) {¶ 14} The last entry of the stipulations state, "This Order shall remain in effect until March 1, 2020." {¶ 15} In his motion to modify spousal support filed January 29, 2019, appellant requested the following: For Cause, Defendant states that at the time the divorce was granted, the Court ordered spousal support in the amount of $2,708.33 per/month pursuant to the agreement of the parties. The Court expressly retained jurisdiction with respect to the amount of spousal support in the Final Decree. The Court's Order with respect to spousal support was based upon the Court's determination that Defendant would earn $110,000.00 per/year and Plaintiff earning $36,000.00 per/year. Defendant's income has decreased causing him to earn $58,000.00 per/year. A material change in the circumstances has occurred since the previous court order such that review and adjustment of the spousal support amount should be undertaken. {¶ 16} Nowhere in his motion did appellant argue the stipulated spousal support award expired at the end of 2018 and therefore a new amount needed to be determined. Appellant was operating under the stipulated amount of $2,708.33 per month. {¶ 17} In her motion to show cause, appellee argued the following: In addition, a second set of Stipulations was agreed to by the parties, which provided that Defendant would pay to Plaintiff, the sum of ONE THOUSAND EIGHTY THREE DOLLARS and THIRTY THREE CENTS ($1,083.33) in two (2) week installments on the first and fifteenth of each month, beginning in the year 2019 and that the Defendant, upon receipt of his bonuses from his employer, would pay the difference of ONE THOUSAND SIX HUNDRED TWENTY FIVE DOLLARS ($1,625.00) for each month of Defendant's spousal support obligation. Defendant received a bonus after the filing of Stipulations, but has failed to pay the adjusted spousal support monthly obligation for the months of January and February (to date) for the year 2019. {¶ 18} We note the second stipulation on spousal support did not contain the language "beginning in the year 2019," but rather "for the remainder of the 2018 calendar year." {¶ 19} A hearing on the motions was held on September 5, 2019. Appellant explained he lost his job on December 3, 2018, with a base salary of $65,000.00 plus bonuses, and started a new job a month later earning a base salary of $58,000.00 plus bonuses. T. at 7, 18, 21, 23. He paid appellee spousal support in January 2019, but could not remember the amount. T. at 27. In February 2019, he started paying appellee $833.00 per month. T. at 27-28. He admitted to not paying appellee the stipulated amount from January 2019 through August 2019. T. at 78. Appellant testified he was unable to continue paying appellee per the terms of the stipulation. T. at 29-30. He was not aware of any court order that permitted him to pay appellee only $833.00 per month. T. at 79. {¶ 20} In its September 23, 2019 judgment entry finding appellant in contempt, the trial court found the following: What bonuses Defendant may be entitled to receive from Zeigler Tire remains unresolved as well as whether or not he will receive a bonus from his current employer. The evidence is clear that if Defendant will receive a bonus from his current employer is based on the same concept that served his bonus formula at Zeigler Tire. The reduction of $7,000.00 per month [sic] [year] of Defendant's base salary is no justification for Defendant's voluntary decision to reduce his monthly spousal support payments from $1,083.33 to $833.00. Accordingly, this Court concludes that Defendant's unilateral decision to reduce his spousal support payments was intentional and in willful contempt of this Court's Order. Defendant may purge himself of this willful contempt by paying all spousal support arrearage no later than January 1, 2020. {¶ 21} Based upon the evidence presented, we cannot find that the trial court abused its discretion in finding appellant in contempt for failing to pay appellee the full amount of spousal support. While the stipulated order contained the language "for the remainder of the 2018 calendar year," it also discussed appellant's receipt of his bonus "in May or June of each year" and stated the order was to remain in effect until March 1, 2020. We find clear and convincing evidence of the existence of a court order and appellant's noncompliance with the order. We do not find any evidence to rebut the initial showing of contempt or to establish an affirmative defense by a preponderance of the evidence. {¶ 22} Upon review, we find the trial court did not abuse its discretion in finding appellant in contempt for failing to pay the stipulated spousal support amount. Because the contempt finding is affirmed, any attorney fees derived from the finding stand. {¶ 23} The sole assignment of error is denied. {¶ 24} The judgment of the Court of Common Pleas of Stark County, Ohio, Domestic Relations Division is hereby affirmed. By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur. EEW/db	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/3818475/	This was an action brought by D.B. Taliaferro against the St. Louis San Francisco Railroad Company to recover damages for an alleged common-law liability for negligence in failing to transport certain live stock to market within a reasonable time. The shipment was interstate. The defendant answered, denying the negligence, and further pleaded that the shipment was made under and by virtue of certain live stock contracts, which were form No. 1134, and which contained, among other things, the following provision: "(13) As a condition precedent to recovery of damages for any death, loss, injury, or delay of the live stock, the shipper shall give notice, in writing, of his claim, to some general officer of the company, or the nearest station agent, or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be promptly and fully investigated, and a failure to comply with this condition shall be a bar to the recovery of any damages for such death, loss, injury or delay." "(16) No suit or action for the recovery of any claim for damages for death, loss, injury, or delay of this live stock shall be sustainable, unless begun within six months next after the cause of action shall accrue, and if begun later, the lapse of time shall be conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding." It was alleged that there had been no compliance with either of these provisions of the contract. Defendant further Page 521 alleged that it had two rates on live stock, one of which was based upon shipments under special contract, and the other — a higher rate — upon shipment at carrier's risk, and that these rates were properly and duly published and filed with the Interstate Commerce Commission. The plaintiff replied, alleging that he was given no option, at the time of shipping the cattle, as to what rate he would pay or as to signing the special contract; that he did not have time or opportunity to read the contract; that he was not advised by the railroad company or its agent that there was any different contract made, or rate which he could pay; and that the provisions in regard to giving notice and bringing suit contained in said contract were unreasonable. Upon these pleadings a trial was had to a jury and a verdict returned for the plaintiff. There was a demurrer to the plaintiff's evidence, and a motion for an instructed verdict, both of which were overruled and exceptions taken. As to the validity of the two clauses of the contract above set out as to interstate shipments, there is no longer any question. St. L. S. F. R. Co. v. Bilby, 35 Okla. 589,130 P. 1089; St. L. S. F. R. Co. v. Zickafoose, 39 Okla. 302,135 P. 406; M., K. T. R. Co. v. Watson, 37 Okla. 517,133 P. 42; St. L. S. F. R. Co. v. Pickens, 61 Okla. 455,151 P. 1055; Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; St. L. S. F. R. Co. v. Cake, 25 Okla. 227, 105 P. 322; C., R.I. P.R. Co. v. Conway, 34 Okla. 356, 125 P. 1110; St. L. S. F.R. Co. v. Ladd, 33 Okla. 160, 124 P. 461. It is equally well settled that whatever manner or form of action the plaintiff may bring upon an interstate shipment, if it be pleaded and proved Page 522 that he entered into a special contract, in the absence of fraud or oppression upon the part of the carrier, or an attempt at rebating or unlawful billing, sufficient to avoid the contract, both parties will be bound by its terms. Kansas CitySouthern R. Co. v. Carl, 227 U.S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; A., T. S. F. R. Co. v. Robinson, 233 U.S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901; St. L. S. F. R. Co. v. Ladd,33 Okla. 162, 124 P. 461; M., K. T. R. Co. v. Walston,37 Okla. 517, 133 P. 42; and cases cited. St. L. S. F. R. Co.v. Peery, 40 Okla. 432, 138 P. 1027, did not go further than to hold that a common-law liability may be enforced where there was no question that there had not been a violation of such provisions of the special contract as had been held valid. There was no question at the trial that plaintiff had failed to comply with the terms of the special contract. There was absolutely no evidence that the conditions thereof were unreasonable in the particular case, which might have carried that question to the jury. St. L. S. F. R. Co. v. Phillips,17 Okla. 264, 87 P. 470. In fact the evidence showed that the defendant maintained an office at the National Stockyards, Illinois, where these cattle were delivered, for the very purpose of investigating these claims; that the cattle were delivered there about two o'clock one afternoon and were sold the following morning, without notice being given to the carrier or any opportunity for it to inspect the cattle and ascertain whether or not there had been such shrinkage of flesh as was afterwards claimed by the plaintiff. It is insisted, however, that the effect of these provisions is avoided by pleading that the plaintiff was given no opportunity to select any other rate. The evidence of the plaintiff himself, Page 523 which was the strongest offered in his behalf, was to the effect that he simply went to the office of the agent of the railroad company, was offered these contracts, and that he signed them; that the agent did not explain to him that there were two rates on live stock, and that he did not know it; that he did not read the contract and did not know what it contained; that he made no protest in regard to it. He was amply able to read and write. He testified that he had been shipping cattle for 25 years, and that he always signed contracts or bills of lading covering such shipments. Among other things, he was asked these questions: "Q. You have read this contract have you? A. I don't remember ever reading one of them. Q. You know, of course, about what they contain? A. Well, I can't tell you to save my life what is in one of them; I never paid any attention to that; that's all there is to sign; called in to sign a contract and usually do it." The contract which the plaintiff signed, and which was introduced in evidence, had printed across it in large, black letters, the following: "Read this contract carefully. Notice. This company has two rates on live stock. "The rate charged for shipment of live stock under the following contract is lower than the rate charged if the shipment is not made under the following contract, but at carrier's risk. The rates of freight are based upon the nature and extent of liability assumed by the carrier. The shipper has the right of election whether to ship live stock under this contract at the lower rate, or not under this contract, but at the carrier's risk, at a higher rate." The evidence on behalf of the defendant showed conclusively, and without dispute, that the rates covering shipments of live stock such as this were properly filed Page 524 with the Interstate Commerce Commission, and were published as required by law. The tariff contained a notation to the effect that if contracts were made under this special form, No. 1134, the rate should be a certain sum, whereas, if cattle were shipped not under the contract, but at carrier's risk, the rate should be 110 per cent. of that fixed for carriage under the contract. Under this testimony it is clear that there was no competent evidence which in any way would tend to support the verdict of the jury. Noncompliance with the contract being admitted, and its execution being likewise admitted, the circumstances detailed by the plaintiff did not excuse him from the performance of the contract. In the first place, he is charged by law with knowledge of the fact that there were two rates on live stock. This came from the proper publication of the rate and the notation above referred to, and its being filed with the Interstate Commerce Commission. In A., T. S. F. R. Co. v. Robinson, 233 U.S. 180, 34 Sup. Ct. 558, 58 L. Ed. 901, the Supreme Court of the United States said: "We regard these cases as settling the proposition that the shipper as well as the carrier is bound to take notice of the filed tariff rates and that so long as they remain operative they are conclusive as to the rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false billing. Great Northern R. Co. v. O'Connor,232 U.S. 508 [34 Sup. Ct. 380, 58 L. Ed. 703." In that case recovery was sought upon an alleged oral contract which did not contain the terms of the special contract. The court further said: Page 525 "The Supreme Court of the state in this case affirmed the instruction of the trial court upon which the case was given to the jury and held that the oral contract was binding, unless it was affirmatively shown that the written agreement, based upon the filed schedules, was brought to the knowledge of the shipper and its terms assented to by him. This ruling ignored the terms of shipment set forth in the schedules and permitted a recovery upon the contract made in violation thereof in a case where there was no proof that there was an attempt to violate the published rates by a fraudulent agreement showing rebating or false billing of the property, and no circumstances which would take the case out of the rulings heretofore made by this court as to the binding effect of such filed schedules and the duty of the shipper to take notice of the terms of such rates and the obligation to be bound thereby, in the absence of the exceptional circumstances to which we have referred." In Kansas City Southern R. Co. v. Carl, 227 U.S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683, a case involving two rates based upon declared value, the Supreme Court of the United States said. "He must take notice of the rate applicable, and actual want of knowledge is no excuse. The rate, when made out and filed, is notice, and its effect is not lost, although it is not actually posted in the station. Texas Pacific Ry. Co. v.Mugg, 202 U.S. 242 [26 Sup. Ct. 628, 50 L. Ed. 1011]: Chicago Alton Railway v. Kirby, 225 U.S. 155 [32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501]. It would open a wide door to fraud and destroy the uniform operation of the published tariff rate sheets. When there are two published rates, based upon difference in value, the legal rate automatically attaches itself to the declared or agreed value. Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which Page 526 the shipper must pay. The shipper's knowledge of the lawful rate is conclusively presumed, and the carrier may not be required to surrender the goods carried upon the payment of the rate paid, if that was less than the lawful rate, until the full legal rate has been paid." If the shipper be charged with knowledge that there are two rates upon declared valuation, he must likewise be charged with knowledge that there are two rates based upon different forms of contract provided for the shipment of live stock. In M., K. T. R. Co. v. Walston, 37 Okla. 517, 133 P. 42, this court said: "Neither is the question of the carrier's liability affected by the fact that the plaintiff had no actual knowledge of either the existence or contents of the tariffs and classifications at the time in force. He was charged with knowledge of the lawful rate. * * * The shipper can elect which of the two rates he desires. If no election is made, and the goods are billed out by the carrier at the lower rate, the shipper, in the absence of fraud, and particularly where without objection the lower rate of freight was afterwards paid, is bound by the terms thereof. If by his passive conduct he elects to take advantage of the lower rate, he cannot then insist upon another and different liability on the part of the carrier." Without further citation of authority it will be seen to be apparent that the shipper is just as conclusively charged with knowledge of the contents of the tariff as is the carrier, and just as much bound thereby. It cannot be said to be the duty of the carrier to enlighten him as to the rates, when he is as much presumed to know them as is the carrier. Nor was there any evidence in this case to justify the conclusion that the contracts were signed under such circumstances of fraud and oppression Page 527 as would render them nudum pactum, and enable plaintiff to enforce a liability of the carrier for negligence without reference to the terms of the contract. That there might be circumstances, such as a refusal of the carrier to allow the shipper any choice as to rates, or fraudulent or deceitful conduct on the part of the carrier, which would avoid the contract, is apparent. Toledo, St. L. Western R. Co. v.Milner (Ind. App.) 110 N.E. 756, is a case of this sort. See, also, Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251; A., T. S.F. R. Co. v. Dill, 48 Kan. 210, 29 P. 148; St. L. S. F. R.Co. v. Gorman, 79 Kan. 643, 100 P. 647, 28 L. R. A. (N. S.) 637, and cases cited. But there is no competent evidence of any kind in this case to support a conclusion that the contract was entered into under such circumstances of fraud and oppression as would avoid compliance with its terms. St. L. S. F. R. Co.v. Ladd, 33 Okla. 162, 124 P. 462, was very similar to this case upon the facts, and is controlling as to the rule of law applicable. In that case this court said: "It is admitted that plaintiff signed the special contract, but he contends that he did so under such circumstances as not to charge him with knowledge of its contents, and that he did not have an opportunity to exercise the option of choosing the rate under which he desired to ship. It seems that the cattle were loaded just a few moments before the departure of the train on which they were to be transported; that, immediately after they were loaded and before the shipper had time to get his bill of lading or sign his contract, the train crew commenced the necessary switching operations to transfer the loaded stock cars from the place they were loaded to their proper place in the train which was to carry them to their destination; that while this was going on the shipper went to the station agent, and signed the special contract referred to without reading it; that he made no inquiry whether or Page 528 not the company had two rates, and the agent (of the company) did not tell him that there were two rates, nor read the contract to him, nor call his particular attention to the conditions contained therein. It is also admitted that the cattle were on the road longer than the time usually necessary to transport them from Tuttle, Oklahoma, to Kansas City, Missouri, and that on their arrival at the market in Kansas City the cattle were considerably shrunken in flesh. "The rule seems to be well settled that a shipper of live stock cannot, in the absence of fraud by the carrier, avoid limitations of the carrier's liability contained in the bill of lading or shipping contract by showing that he executed the contract hurriedly, or without due care, or that he was ignorant of its contents or failed to read the same (citing cases). 'As has been said by one court,' says Elliott in his work on Railroads (Vol. 4, sec. 1502a), 'it would tend to disturb the force of all contracts if one in possession of ordinary capacity and intelligence were allowed to sign a contract and act under it in the enjoyment of all its advantages, and then to repudiate it upon the ground that its terms were not brought to his attention. In the absence of all fraud, misrepresentations, or mistakes, it must be presumed that he read the contract, and assented to its provisions.' " Under the doctrine of these authorities, there being no competent evidence at all which would support a conclusion relieving the plaintiff from compliance with the terms of the special contract, and it being shown without contradiction that he did not comply with the terms thereof, and the special contract being in evidence, and its execution admitted, it is clear that there was no competent evidence to support the verdict of the jury in favor of the plaintiff. It is likewise apparent that a new trial under the facts of this case, as developed in the record, could *Page 529 not result in anything but a verdict and judgment for the defendant. The order heretofore made in this case reversing the same for failure to file briefs by the defendant in error is set aside, and the cause reversed, with directions to the trial court to dismiss the cause. By the Court: It is so ordered.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/3445274/	Reversing. Gilmore Helm and the McCoy Realty Co. are real estate brokers. J.M. Taylor owned a farm in Jefferson Page 10 county, which he listed for sale with Gilmore Helm and which they had advertised in a daily paper. L.O. Alverson arld his wife jointly owned some residence property in the city of Louisville. Alverson desired a farm and had incidentally mentioned this fact to W.G. Archer, a salesman for the McCoy Realty Co. Alverson saw the advertisement and discussed the matter with Archer, indicating that he would like to have the farm if it suited him and an exchange could be arranged for the city property, but did not list the city property with him for sale or exchange or authorize him to negotiate for the farm. Archer accompanied Alverson to see Helm and the three visited the Taylor farm, with which Alverson was much impressed, and in a writing given to Helm proposed to exchange the city property therefor. The Taylors did not accept this proposition, but responded with a counter proposition duly executed by them and in which they offered their farm in exchange for the city property and $3,500.00, describing both properties and specifying terms of payment. This proposition was duly accepted in writing by Alverson, who made additional trips to the farm and arranged with the Taylors for an exchange of certain of the fixtures in the two buildings, and also contracted for a tenant to go on the farm. The Taylors prepared for a sale of their crops and for a surrender of possession of the farm, but Mrs. Alverson declined to execute a deed to the city property and the trade was not consummated. Gilmore Helm, and the McCoy Realty Company, brought this action against Alverson seeking to recover from him $517.00 brokerage commission on the Taylor farm, and $315.00 on the city property, which, according to the proven value of each, is admittedly the usual and customary charges of brokerage commissions for the sale of such property. The suit is based on the theory that the first sum would have been due from Taylor and the second sum from Alverson in the event the trade had been consummated; and that by reason of his breach of contract Alverson became liable for the entire amount. In addition to the above facts, Mr. Helm admits that he knew Mrs. Alverson was a joint owner of the city property and states that he asked that she sign the written contract, but that Mr. Alverson objected to this and stated "he did not want us to see his wife because he would attend to that part of it, that she would agree to sign the deed to the property." Alverson denies this and Page 11 states that nothing was said about his wife signing the contract or her consent being procured. The trial judge was of the opinion that Alverson had not listed his property for sale or exchange and had not agreed to pay any commission thereon and therefore gave a peremptory instruction in favor of the defendant as to the item of $315.00. He was further of the opinion that the writing evidenced an unqualified contract of purchase of the farm by the defendant, and that this was not affected by the character of the consideration; that defendant was bound by the written obligation, and as it was breached he was liable in damages for the commissions Gilmore and Helm would have realized from Taylor if the trade had been consummated, and that it was immaterial as to whether any mention of defendant's wife was made at the time the contract was signed. He therefore gave a peremptory instruction for the plaintiffs for $517.00 claimed in that item. Verdict was rendered and judgment entered accordingly. Defendant appeals, no cross-appeal being asked by the plaintiffs. Clearly appellant did not list the city property for sale or exchange with the McCoy Realty Company, nor did he employ that firm or Gilmore Helm to purchase the Taylor farm or to procure an exchange for the city property; yet it might be said that by this arrangement he authorized the brokers to exchange his city property for the farm property, and that while there was no express agreement to pay commissions on the city property, if he refused to convey the latter when tendered a sufficient deed for the farm, perhaps the law would imply a contract to pay the usual and customary commissions on the city property for the services of the brokers in his behalf. Gudgel v. Cook, 146 Ky. 439. If the facts fall within the principle laid down in that case it is further complicated by the fact that the brokers had actual knowledge of the condition of the title, and that Alverson did not claim to act as agent for his wife or make any representations as to her except to say that he did not wish them to see her, and that she would sign the deed, but, however that may be, as no cross-appeal is taken from the judgment dismissing that action, the right to commissions on the city property is not before us. As to the brokers' right to commissions on the Taylor farm, the facts establish a brokerage contract between Taylor and Helm and a contract between Taylor and defendant for the exchange of their real estate, Page 12 but do not show any undertaking upon the part of plaintiffs to act for defendant except to the extent of assisting him in the disposition of the city property, and it is difficult to perceive any privity between defendant and the other parties in the brokerage contract for the sale of the farm. Under the latter contract plaintiffs were required to procure for Taylor a purchaser who was ready, willing and able to carry out the terms of purchase, or in case of an exchange to carry out the terms of the contract. If instead of an exchange they had procured a purchaser having these qualifications and he had refused to comply with the contract, unquestionably Taylor would have looked to him for specific performance or damages for breach of contract and plaintiffs would have looked to Taylor alone for their commissions. This case must stand on the same principle. It was plaintiffs' duty to procure a person who was willing, ready and able to carry out the terms of the exchange. As Mrs. Alverson owns a one-half interest in the city property and refuses to convey, it is clear that Taylor could not have specific performance of the contract. Further, as his agents (plaintiffs) had actual knowledge of the condition of the Alverson title and accepted the contract upon his verbal promise that his wife would sign the deed, Taylor's right to recover damages at law for Alverson's breach of contract might be seriously questioned, but this question is not controlling and we do not deem it necessary to determine it. If the contract between Taylor and Alverson was enforceable, plaintiffs have a cause of action against Taylor for their commissions and their remedy is confined to him. If that contract was void and unenforceable they have not complied with their contract and are not entitled to commissions from anyone. Bird v. Rowell, 180 Mo. App. 422. Cavender v. Waddingham, 2 Mo. 551, and Atkinson v. Pack,114 N.C. 597, relied upon by appellee, do not conflict with this view. In the Cavender case a person employed brokers to purchase a tract of land from him at a certain price, their commissions to be paid by the vendor. They found a person who was ready, able and willing to sell, but the purchaser repudiated the contract and refused to accept the deed. It was held that the broker performed services for the purchaser under the contract and that it contemplated the payment of commissions therefor; that though Page 13 it was agreed for another person to pay for these services, as payment was prevented by the purchaser's breach of contract, he was liable therefor in damages. The Atkinson case was similar except that in it the brokers were employed by the vendor to sell at a certain price, commissions to be paid by the purchaser. They found a suitable purchaser and vendor refused to convey. He was held liable for their commissions on the same principle. Here the brokers were looking alone to Taylor for the payment of commissions on the sale or exchange of the farm, and under the contract defendant was no more liable therefor than he would have been under a contract to purchase for cash. It follows that the court should have given the jury a peremptory instruction to find for defendant. Wherefore, the judgment is reversed and cause remanded for proceedings consistent with this opinion.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/128005/	538 U.S. 909 SCOGGINSv.CALIFORNIA. No. 02-6141. Supreme Court of United States. March 10, 2003. 1 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. 2 Sup. Ct. Cal. Certiorari denied.	01-03-2023	04-28-2010
https://www.courtlistener.com/api/rest/v3/opinions/2792042/	FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 8, 2015 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff – Appellee, v. No. 13-1169 CHRISTIAN PAETSCH, Defendant – Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:12-CR-00258-WJM-1) John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson, Federal Public Defender, Interim, and Virginia L. Grady, Federal Public Defender, Interim, with him on the briefs), Denver, Colorado, for Defendant – Appellant. Robert M. Russell, Assistant United States Attorney (John F. Walsh, United States Attorney, and W. Aaron Vandiver, Special Assistant United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff – Appellee. Before BRISCOE, Chief Judge, TYMKOVICH, and PHILLIPS, Circuit Judges. PHILLIPS, Circuit Judge. At a street intersection in Aurora, Colorado, police officers barricaded 20 cars carrying 29 people after learning that one of the cars contained a tracker secreted in money stolen minutes earlier during a bank robbery. Delays in obtaining and properly using a homing beacon slowed police in isolating which car had the stolen money. Twenty-nine minutes into the stop, police removed Christian Paetsch from his car after seeing him act suspiciously and disobey their orders by putting his hands back inside his car. About an hour after this, and after police had removed everyone from their cars, they looked through Paetsch’s car window and saw a money band that banks use to wrap currency. Soon afterward, an officer with a homing beacon isolated the tracker’s signal as coming from Paetsch’s car. In total, police detained the other 28 people for 2 hours and 18 minutes. After conditionally pleading guilty to a bank robbery and a firearm charge, Paetsch appealed the district court’s denial of his motion to suppress evidence. He maintains that the barricade’s group seizure was unreasonable at its inception and, if not, became unreasonable because of its duration and the police’s tactics used during the barricade. We evaluate the stop at its two separate stages affecting Paetsch—first, the 29 minutes he was detained as part of the general barricade seizure, and, second, the 64 minutes or so after officers developed individualized suspicion of him due to his suspicious behavior. Finding that Paetsch’s Fourth Amendment rights were not violated at either stage, we affirm the district court’s order denying his suppression motion.1 FACTS 1 We grant Paetsch’s motion to take judicial notice of the materials outside the record. Appellant’s Br. at 56. -2- On June 2, 2012, at about 3:47 p.m., a Saturday, Christian Paetsch walked into a Wells Fargo Bank in Aurora, Colorado, wearing gloves, a bee-keeper’s mask, and dark clothes that concealed him from head to toe. In one hand Paetsch held an air horn, and in the other, a handgun. After blasting the air horn, he yelled for everyone to get down on the floor. He then snatched stacks of money from the teller’s drawer, stuffed them into his coat pockets, and fled. Unknown to Paetsch, one of the stacks of money contained a Global Positioning System (GPS) tracking device. Seconds after Paetsch had stolen the money from the teller drawer, the tracker began transmitting a silent signal to the Aurora Police Department, which allowed police to follow the tracker’s street location on a computer monitor. Using these tools, police could locate the tracker to about a 60-foot diameter. Soon after the money left the bank, dispatchers began radioing the tracker’s location to police officers in the field. About five minutes after the robbery, dispatch reported that the tracker had stopped about a half-mile from the bank. Three minutes later, dispatch reported that the tracker was again moving, this time at speeds of 30 to 40 miles per hour, which likely meant that the currency, the tracker, and the bank robber were traveling in a car. Soon after this, dispatchers reported that the tracker was moving eastbound on Iliff Avenue toward Buckley Road and then that it had stopped at the intersection. At 4:01 p.m., about 14 minutes after the bank robbery, Officer Kristopher McDowell arrived at the intersection and saw traffic stopped at a red light. Dispatch told him that the tracker was still stopped there. Before the light turned green, under pressure to make a -3- quick decision, Officer McDowell blocked the traffic with his patrol car and signaled with his arms and hands that the cars must remain stopped. Within minutes, several patrol cars arrived and barricaded the motorists from leaving in either direction. Using a public- address system, police ordered the motorists to raise their hands, outside their car windows if possible, and not to move. In all, the officers stopped a group of 20 cars containing 29 people. At 4:08 p.m., seven minutes after Officer McDowell had stopped traffic, Lieutenant Christen Lertch arrived and took charge. He confronted a difficult situation. First, the police had little information about the bank robber’s physical appearance. They knew only that one of the bank tellers thought the robber was male based on his voice, guessing that he was a Caucasian in his 20s or 30s. Second, the police had no information about what kind of car the bank robber was driving. Third, although the police knew that the bank robber was likely in one of those 20 cars, they could not say which particular car because the GPS could pinpoint the tracker’s location only to a 60-foot diameter. Lt. Lertch told dispatch to have officers working with “Safe Streets,” an FBI task force, get a homing beacon to the scene as soon as possible. These beacons allow police to pinpoint a tracker’s location to a 10-foot diameter. Dispatch notified Lt. Lertch that task-force officers were already coming with the beacon and would arrive within 20 to 30 minutes. Thirty minutes later, Lt. Lertch requested an update, and, after checking, dispatch told him it would be another 20 to 30 minutes. Frustrated, he then demanded to speak with the FBI Task-Force Officer, T.J. Acierno, a deputy sheriff working on the -4- FBI’s “Safe Streets” program, impressing upon him with strong language the need for him to arrive as soon as possible. Because it was a Saturday, Officer Acierno had begun the day off duty. When he learned of the bank robbery, he was at his home on the northwest side of Denver, about 25 miles from the barricade. To assist, Officer Acierno first needed to drive about 13 miles to an FBI office north of downtown Denver to get the beacon and then another 16 miles to get to Lt. Lertch on the southwest side of the city. He was delayed, first because he realized on the way that he had forgotten his keys to the FBI office and needed to return home to get them, and second because his siren broke along the way. At about 4:30 p.m., before Acierno arrived with the beacon, police officers removed occupants from three of the cars toward the back of the group of 20. In two of those cars, officers had noticed the solo occupants behaving suspiciously. An officer saw a man in a car (a sports utility vehicle) shifting in his seat, repeatedly looking around, and failing to keep his hands outside his car as ordered. Officers removed the man from his car. He was the bank robber, Christian Paetsch. To remove Paetsch from his car, a team of four officers approached it from the rear, with weapons drawn. They ordered Paetsch out of his car and on the ground. Paetsch complied. Officers approached him, handcuffed him, and sat him on a curb away from the cars. The officers used the same procedure to remove the other motorist who had acted suspiciously. They removed the occupants of a third car for tactical reasons. At about 4:55 p.m., Officer Acierno finally arrived with the beacon. Despite his training, it soon became evident that he was unable to use the beacon correctly to locate -5- the GPS tracker. Even so, he did get a weak signal from one of the 20 cars, specifically from Paetsch’s car. Because he could not use the beacon to its full capabilities, Officer Acierno called Patrick Williams, a Colorado state trooper also working as a “Safe Streets” task-force officer. Officer Williams was interviewing witnesses at the bank. Officer Acierno requested help with the handheld beacon, and Officer Williams began making his way to the barricade. No one told Lt. Lertch that Officer Williams was coming. Meanwhile, at a standstill after Officer Acierno’s disappointing performance with the beacon, Lt. Lertch ordered that his officers remove all occupants from the remaining 17 cars—again they did so using weapons and ballistic shields. Officers treated adults traveling without children as suspects and handcuffed them. At least in some cases, officers at close range fixed their firearms on the heads and bodies of the people removed from their cars. After ensuring that none were armed, officers sat them on the curb. By 5:25 p.m., the officers had cleared out every car. Then they did a “secondary search,” peering through car windows to ensure that nobody was hiding. R. vol. 3, at 197–98. During this secondary search, an officer saw through Paetsch’s car window a $2,000 “money band”—a slip of colored paper that banks use to wrap stacks of money. Id. at 198–99. Upon being informed of this, Lt. Lertch and several other officers came over to see the money band. Shortly after this, Officer Williams arrived. An expert in using handheld beacons, he set its functions correctly and quickly got a very strong signal from inside Paetsch’s car. Officers then arrested Paetsch and put him in the back of a police car. A search of his car -6- revealed more incriminating evidence: $22,956 in cash, two handguns, boxes of ammunition, a mask, a wig, a pair of gloves, an empty air horn package, two fake license plates, and, of course, the GPS tracker embedded within a stack of money. At 5:38 p.m., the police allowed the detained motorists to return to their cars but kept them there another 30 minutes to allow crime-scene investigators to gather information. In total, the police detained the innocent motorists from 4:01 to 6:19 p.m. Three days later, a federal grand jury indicted Paetsch on two counts: (1) armed bank robbery, under 18 U.S.C. § 2113(a), (d); and (2) using and brandishing a firearm during and in relation to a crime of violence, under 18 U.S.C. § 924(c)(1)(A)(ii). Paetsch filed a motion to suppress statements he had made to police as well as the physical evidence seized from his car. First, he argued that the initial stop had violated his Fourth Amendment rights because the police lacked individualized suspicion that any particular person stopped at the intersection had committed a crime. Second, he argued that the stop had violated his Fourth Amendment rights because the intrusion on the individuals’ Fourth Amendment interests outweighed the government’s interests. The district court held a 3-day hearing and heard 16 witnesses testify. After this, it granted Paetsch’s motion to suppress the statements he had made to police officers after invoking his right to speak to an attorney. United States v. Paetsch, 900 F. Supp. 2d 1202, 1221–22 (D. Colo. 2012). But the district court denied the motion to suppress the evidence seized from Paetsch’s car. Id. Paetsch conditionally pleaded guilty to both counts, reserving his right to challenge the district court’s suppression order. -7- The district court sentenced Paetsch to consecutive sentences of 2 months on the armed-bank-robbery count (despite an advisory guideline range of 41 to 51 months, and the mandatory minimum of 84 months on the § 924(c) count for brandishing a firearm during the bank robbery. Paetsch appealed. DISCUSSION Under the Fourth Amendment, Paetsch challenges the denial of his motion to suppress physical evidence seized from his car. He argues that the barricade was unreasonable at its inception, unreasonable in its duration, and unreasonable in the means used to carry it out. Specifically, he contends under Indianapolis v. Edmond that the group seizure was not “appropriately tailored.” And, under the balancing test set forth in Brown v. Texas, he argues that the barricade did not advance the public interest to a sufficient degree when weighed against its resulting interference with individual liberty. We conclude that the stop was constitutional at its inception because it was in fact “appropriately tailored” to catch a fleeing, armed bank robber. We also conclude that the gravity of the public concern in apprehending the armed bank robber and the likelihood of advancing the public interest justified the intrusion on individual liberty—at least until police developed individualized reasonable suspicion of Paetsch. After that point, we have no reason to evaluate the reasonableness of the barricade seizure.2 2 The Government has argued that any determination of whether the police violated any of the other barricaded people’s Fourth Amendment rights should be determined not here but in suits brought under 42 U.S.C. § 1983. We simply note that our analysis of the barricade ends at the point officers developed individualized reasonable suspicion of -8- We apply a clear error standard when reviewing the district court’s findings of fact. As noted by the district court, the operative facts are undisputed. Paetsch, 900 F. Supp. 2d at 1205. We review de novo the district court’s conclusions of law—including its finding of reasonableness under the Fourth Amendment. United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012). 1. Did the Barricade Violate Paetsch’s Fourth Amendment Rights? The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. Generally, a seizure made without individualized suspicion of wrongdoing is unreasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (holding that a roadway checkpoint randomly stopping motorists without individualized reasonable suspicion for the primary purpose of general crime control—interdicting illegal drugs—violated the Fourth Amendment). A traffic stop is a “seizure within the meaning of the Fourth Amendment.” Delaware v. Prouse, 440 U.S. 648, 653 (1979). Because roadblocks and checkpoints seize people without individualized reasonable suspicion, they would violate the Fourth Amendment if subject to that general rule. And, even here, where police had GPS information showing that the tracker (and likely the bank robber) were in one of the 20 cars, police initially lacked reasonable, articulable suspicion of any particular person. Paetsch, so nothing in this opinion speaks to the constitutionality of the barricade after that point. -9- But the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson v. California, 547 U.S. 843, 855 n.4 (2006). Accordingly, the Supreme Court has carved out exceptions to the general rule where the primary purpose of a group seizure went beyond ordinary crime control. See Edmond, 531 U.S. at 37–38. For example, the Court has upheld a border patrol roadblock3 designed to intercept illegal aliens. United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976). And it has upheld a sobriety checkpoint aimed at removing drunk drivers from the road to protect public safety. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990). In those situations, the Court has not required individualized reasonable suspicion, instead favoring a group- level balance of interests, weighing the public interest against intrusions on individuals’ liberty. In Indianapolis v. Edmond, the Court explained in dictum4 that “there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control.” 531 U.S. at 44. As one example, the Court noted, “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.”5 Id. The 3 As we use the terms in this opinion, roadblocks include checkpoints and barricades. 4 We are bound by the Court’s dictum on this issue. See United States v. Orona, 724 F.3d 1297, 1311 (10th Cir. 2013) (reiterating that “we are bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings, particularly when the dicta is recent and not enfeebled by later statements”). 5 Along the same lines, Justice Jackson addressed how reasonableness can accommodate emergencies in these words that help us and support Edmond: - 10 - Court distinguished the exigencies in those scenarios from “the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction.” Id. Here, the police knew far more than that an armed bank robber was fleeing on a “likely route”: they knew that the stolen money (and likely the armed criminal who stole it) sat in a car idling at that very intersection. And, because the police barricaded only the 20 cars possibly containing the bank robber, their barricade was appropriately tailored to achieve its constitutional purpose—“to catch a dangerous criminal who is likely to flee by way of a particular route.”6 See United States v. Abbott, 265 F. App’x 307, 309 (5th If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting). 6 Different courts have considered whether a roadblock is “appropriately tailored” at separate points in the analysis. Analyzing a programmatic checkpoint in Lidster, the Supreme Court treated it as a consideration in weighing the second Brown factor. The Court said, “The stop advanced this grave public concern to a significant degree. The police appropriately tailored their checkpoint stops to fit important criminal investigatory needs.” Lidster, 540 U.S. at 427. In Abbott, which analyzed an emergency roadblock like ours, the Fifth Circuit considered it a threshold question before turning to whether the roadblock was reasonable under the circumstances. It held that the roadblock at issue was not “unconstitutional per se” because it was “properly tailored to detect evidence of a particular criminal wrongdoing rather than for general crime control.” Abbott, 265 F. App’x at 309. Finally, in Palacios, the Second Circuit discussed the issue in conjunction with the third Brown factor. It said that there was appropriate tailoring because the - 11 - Cir. 2008) (concluding an emergency roadblock was “properly tailored” because officers used an electronic tracking device to limit the search area). As such, the barricade’s group seizure did not violate the Fourth Amendment simply because it lacked individualized suspicion of a particular motorist. But that does not entirely resolve whether the barricade comported with the Fourth Amendment. We still must examine whether it was reasonable under the totality of the circumstances. To do so, we return to the Fourth Amendment’s underlying principles and weigh the public interest justifying the seizure against the intrusion on individual liberty. Courts analyzing roadblocks have balanced those interests under three factors the Supreme Court announced in Brown v. Texas: “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” 443 U.S. 47, 51 (1979); see, e.g., Illinois v. Lidster, 540 U.S. 419, 427–28 (2004) (analyzing a checkpoint under the Brown factors); Martinez-Fuerte, 428 U.S. at 556–64 (same); United States v. Abbott, 265 F. App’x 307, 309 (5th Cir. 2008) (per curiam) (analyzing under the Brown factors an emergency roadblock set up to catch a bank robber); United States v. Rogers, 244 F. App’x 541, 542– 43 (5th Cir. 2007) (per curiam) (same). 1.1 The Gravity of the Public Concern Officers at the roadway intersection knew that Paetsch was fleeing a bank robbery, and they knew he had brandished a firearm. These circumstances represent a detention of patrons of a dance club was properly limited in scope and duration. Palacios, 589 F.3d at 565. - 12 - “substantial” public threat. See United States v. Abbott, 265 F. App’x 307, 309 (5th Cir. 2008) (per curiam) (“The public concern of apprehending armed bank robbers was substantial.”); 4 Wayne R. LaFave, Search and Seizure § 9.7(a), at 955–56 nn. 26–37 (5th ed. 2012) (collecting cases upholding the use of roadblocks to address serious crimes). Paetsch himself admits that “there was a grave public concern animating the dragnet stop.” Appellant’s Br. at 42. 1.2 The Degree to Which the Seizure Advanced the Public Interest When reviewing programmatic checkpoints, the Supreme Court has measured the second Brown factor based on what percentage of the total seizures uncovered wrongdoing. Officers here detained 20 cars, and one contained a bank robber. This 5% “hit” rate is higher than the hit rate of other roadblocks that the Supreme Court has found effective. See, e.g., Sitz, 496 U.S. at 455 (finding a checkpoint that resulted in arrest for 1.6% of drivers passing through to be effective); Martinez–Fuerte, 428 U.S. at 554 (finding a checkpoint that uncovered illegal aliens in 0.12% of the vehicles passing through to be effective). Of course, an emergency barricade like ours differs from a programmatic checkpoint.7 In an emergency situation, the hit-rate analysis does not fully capture the substantial 7 In the roadblock cases cited above, Martinez-Fuerte and Sitz, the Supreme Court examined programmatic checkpoints in which the police decided in advance to detain a random sample of dozens or hundreds of cars traveling along a particular route. They did so on the probability that they would find criminal activity. In our emergency barricade, by contrast, the police made a split-second decision to seize 20 cars in an emergency. And they did so based on specific evidence that they had ensnared an armed bank robber. Because our case is narrowly focused on a single armed bank robber and the emergency - 13 - weight of the second Brown factor in our case. Programmatic checkpoints address general public concerns, such as highway safety (Sitz) or border control (Martinez-Fuerte). Each “hit” incrementally advances the public interest—for example, by taking one drunk driver off the road. An emergency barricade, by contrast, addresses a specific concern—here, the threat posed by an armed, fleeing bank robber. In this context, a “hit” resolves the concern completely. This barricade’s outcome proves its effectiveness: Paetsch in custody. Not only was the barricade effective, but police knew it would be effective before setting it up. Edmond teaches that law enforcement must only employ an emergency roadblock absent individualized suspicion where a criminal is “likely to flee by way of a particular route.” 531 U.S. at 44. Here police had reliable information that they had penned the bank robber at the traffic intersection. See Palacios v. Burge, 589 F.3d 556, 559, 564 (2d Cir. 2009) (holding a group seizure lacking individualized suspicion valid under the Fourth Amendment partly because the police “were armed with reliable information that the perpetrators were among the group of individuals”). Further, the officers knew that they had access to a handheld beacon that would pinpoint the tracker and thus, most likely, the bank robber. he presented to public safety, we must weigh the Brown factors somewhat differently. For example, because of the emergency, we disagree with Paetsch that “all roadblocks” “must be brief and minimally intrusive, never ‘generat[ing] concern or … fright on the part of lawful travelers.’ ” Appellant’s Br. at 30 (internal quotation from Martinez-Fuerte, 428 U.S. at 557–58). Instead, the roadblock cases stand for the more general proposition that the balance of the Brown factors must prove favorable. This means that as the public interest increases so too does the latitude the Fourth Amendment provides. See supra, note 6. - 14 - Perhaps, as Paetsch suggests, the police could also have advanced the public interest by continuing to pursue Paetsch rather than barricading traffic at the stoplight. But “reasonableness under the Fourth Amendment does not require employing the least intrusive means….” Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837 (2002). In fact, the means chosen to advance the public interest need only represent one “choice among … reasonable alternatives.” Sitz, 496 U.S. at 453. Here, the district court found that the barricade advanced the public interest more effectively and less dangerously than the alternative proposed by Paetsch. Paetsch, 900 F. Supp. 2d at 1213– 14. With dozens of officers after him, Paetsch would likely have noticed the police in hot pursuit. Id. at 1214. As the district court found, this could have led to a dangerous high- speed chase, or to Paetsch discarding or disabling the GPS tracker, a possibility mentioned by Officer Michael Thrapp at the suppression hearing. Id. Further, because of the moderate-to-heavy traffic conditions, officers might have been unable to locate the tracker to any particular car had they continued pursuing the signal. And, finally, police had to consider that the tracker’s battery would last only four hours. In light of these factual circumstances and the Supreme Court’s admonition not to “indulge in unrealistic second-guessing,” United States v. Sokolow, 490 U.S. 1, 11 (1989) (internal quotation marks omitted), we conclude that the decision to barricade the 20 cars reasonably advanced the public interest. 1.3 The Severity of the Interference with Individual Liberty - 15 - The roadblock cases instruct us to weigh the first two Brown factors against the third—the severity of the interference with individual liberty. Here, police seized 29 people. When officers developed individualized suspicion of Paetsch, they had detained the innocent people in their cars for 29 minutes. While we sympathize with the innocent motorists caught in the barricade resulting from Paetsch’s armed bank robbery, we conclude that these intrusions on individual liberty do not tip the scale in Paetsch’s favor. First, the law distinguishes between Fourth Amendment rights in cars and those in “the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.” Martinez–Fuerte, 428 U.S. at 561. Second, by limiting detention to the 20 cars within the diameter of the GPS tracker, police took “reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy.” Illinois v. McArthur, 531 U.S. 326, 332 (2001). Third, the duration of the seizure was “no longer than reasonably necessary for the police, acting with diligence,” to identify the perpetrator. Id. When Lt. Lertch arrived, he learned from dispatch that the handheld beacon would arrive in 20 to 30 minutes. He reasonably relied on that estimate and detained the motorists accordingly. Within that time, police developed individualized reasonable suspicion of Paetsch. Here, we find instructive the Second Circuit’s decision in Palacios v. Burge. In that case, police detained patrons of a dance club without individualized suspicion while searching for suspects involved in a stabbing outside the club. Palacios, 589 F.3d at 559. Because the seizure did not occur in a private dwelling, the court afforded police more latitude under the Fourth Amendment. Id. at 564. The court also found appropriate - 16 - tailoring because, based on witness information, the officers limited the seizure to men inside the nightclub or standing in line outside. Id. Ultimately, the court found a 40- minute detention after police rounded up the 170 men to be reasonable. Id. Here, we find a 30-minute detention of 29 individuals to be reasonable. Paetsch argues that we should incorporate into our analysis the privacy intrusions suffered by all the motorists during the entire barricade. We decline to do so because police developed individualized suspicion of Paetsch midway through it. Twenty-nine minutes into it, they saw Paetsch acting suspiciously and disobeying their orders by placing his hands inside his car. The district court emphasized that officers then had “sufficient suspicion of [Paetsch] in particular to remove him from his vehicle using invasive tactics.” Paetsch, 900 F. Supp. 2d at 1216. Based on the GPS tracking information and Paetsch’s suspicious movements, officers had reasonable suspicion that Paetsch might have been “armed and presently dangerous” and that “criminal activity may be afoot.” See Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonable suspicion grew stronger yet when Officer Acierno’s beacon got a weak signal from just one of the 20 cars—that belonging to Paetsch. Notably, that occurred before police removed everyone from their cars. The individualized suspicion toward Paetsch distinguishes our case from other roadblock cases, such as Martinez-Fuerte and Sitz. In those cases, the Supreme Court analyzed programmatic checkpoints against intrusions on innocent motorists detained. Those cases did not reach the situation presented here—how to analyze a Fourth Amendment claim when officers develop individualized suspicion toward a particular - 17 - person after the initial checkpoint encounter. The Court itself made this distinction. In Sitz, for example, the Court noted the decision’s limited scope by acknowledging that there were “[n]o allegations … of unreasonable treatment of any person after an actual detention at a particular checkpoint.” 496 U.S. at 450. The suit challenged “only the use of sobriety checkpoints generally.” Id. Similarly, in Martinez–Fuerte, the Court acknowledged that it was not reviewing an “exercise of discretion in … operating a checkpoint,” which operation would be “subject to post-stop judicial review.” 428 U.S. at 559. See also Lidster, 540 U.S. at 428 (“The police stopped all automobiles systematically.”). Paetsch cites no case like ours where police developed individualized reasonable suspicion of a defendant midway through a group seizure. In our view, once individualized reasonable suspicion develops, a defendant may complain about the underlying checkpoint or barricade only for what happened up to that time. Once police develop individualized suspicion of a person seized as part of a group, that person may not rely on later intrusions on others detained by the barricade. To allow Paetsch to do so would violate the principle that “Fourth Amendment rights are personal rights that may not be asserted vicariously.” Rakas v. Illinois, 439 U.S. 128, 133 (1978). In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), the Supreme Court recently applied Rakas to disallow expanding Fourth Amendment rights of a driver shot and killed in a high speed chase to include the Fourth Amendment rights of his passenger, who was also shot and killed by police. The Court considered whether the officers had used excessive force in violation of the Fourth Amendment. Id. at 2020. It applied the Fourth Amendment’s “reasonableness” standard, which “requires a careful balancing of the - 18 - nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. Despite analyzing the totality of the circumstances, the Court rejected the argument that the presence of the passenger should be part of the driver’s Fourth Amendment calculus: Our cases make it clear that Fourth Amendment rights are personal rights which … may not be vicariously asserted. Thus, the question before us is whether petitioners violated [the driver’s] Fourth Amendment rights, not [the passenger’s]. If a suit were brought on behalf of [the passenger] under either § 1983 or state tort law, the risk to [the passenger] would be of central concern. But [the passenger’s] presence in the car cannot enhance [the driver’s] Fourth Amendment rights. After all, it was [the driver] who put [the passenger] in danger by fleeing and refusing to end the chase, and it would be perverse if his disregard for [the passenger’s] safety worked to his benefit. Id. at 2022 (omission in original) (footnote omitted) (citations omitted) (internal quotation marks omitted). Likewise here, it would be perverse if Paetsch’s disregard for the safety of the community worked to his benefit by enhancing his rights. In light of these considerations, we analyze only the liberty intrusions that occurred before individualized suspicion of Paetsch materialized. In a related argument, Paetsch suggests that we should incorporate into our analysis the privacy intrusions that ultimately occurred—the two-hour detention and the invasive police tactics—because they were foreseeable from the outset. We disagree. Our analysis turns on the “facts known to the officers.” Alabama v. White, 496 U.S. 325, 330 (1990). We must analyze the seizure “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 - 19 - (1989). And we recognize “that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 397. Here, the officers could only act on the information they had—that the beacon would arrive soon. We see no evidence that Lt. Lertch knew or should have known from the outset where the task-force officers were in relation to the beacon or how Officer Acierno would prove inept in operating the beacon despite his training on its use.8 Lt. Lertch surely could not have anticipated the delays caused by Officer Acierno’s forgotten keys and broken police siren. Because the record does not establish that a reasonable officer would have anticipated these conditions and the resulting delay, we do not include them in our analysis. In sum, officers set up the barricade to catch a fleeing, armed bank robber, and they knew they had access to a handheld beacon that could pinpoint him among the 29 people detained. Within the 30 minutes originally estimated for the beacon to arrive, police developed individualized reasonable suspicion of Paetsch. For the first 30 minutes of the barricade, until police obtained individualized reasonable suspicion of Paetsch, we 8 Paetsch asserts that we should apply the horizontal-collective-knowledge doctrine to “pool” the knowledge held by all the officers involved and conclude that Lt. Lertch constructively knew that Officer Acierno did not know how to use the handheld beacon. Appellant’s Br. at 50 & n.7. The doctrine applies when “individual officers have communicated the information they possess individually, thereby pooling their collective knowledge.” United States v. Whitley, 680 F.3d 1227, 1234 n. 3 (10th Cir. 2012); see also United States v. Shareef, 100 F.3d 1491, 1503 (10th Cir. 1996) (“The cases in which we have applied the ‘collective knowledge’ rule all have involved actual communication ….”). It is true that, upon arriving on the scene, Officer Acierno said, “I hope I remember how to work this.” Appellant’s Br. at 50. But that was at 4:55 p.m., after much of the delay had already occurred. Further, such a statement would not put a reasonable officer on notice that Officer Acierno would be unable to locate the GPS tracker. - 20 - conclude that the first two Brown factors—the gravity of the public concern and the degree to which the seizure advanced the public interest—outweighed the third—the severity of the interference with individual liberty. As such, we conclude that the barricade did not violate Paetsch’s Fourth Amendment rights. 2. Has Paetsch Established Any Other Violation of His Fourth Amendment Rights? We have determined that the barricade’s group seizure was constitutional at least until 4:30 p.m. when officers developed individualized suspicion of Paetsch. After that, we analyze Paetsch’s seizure on an individual basis. The district court found that the way in which the officers seized Paetsch “did not amount to an arrest of [him], but was simply a continuation of the investigative stop.” Paetsch, 900 F. Supp. 2d at 1216. This is unchallenged on appeal. Thus, we analyze the seizure after individual suspicion materialized as an investigatory stop and ask whether its scope and duration exceeded constitutional bounds. See United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). First, we find that the means used to detain and control Paetsch were not unreasonably intrusive. While most Terry stops can be minimally intrusive, officers may take reasonable steps to ensure their personal safety. United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996). Those steps can sometimes include the display of guns, the use of handcuffs, and the use of other force. Id. (concluding that the display of guns, a pat down search, and the use of handcuffs were reasonable due to the danger defendants posed). Here, officers had near-certain information that one of the 20 cars contained a fleeing, armed bank robber. Paetsch, sitting in one of the 20 cars, began acting suspiciously and - 21 - refused to comply with police commands. Reasonably concerned that he might “try to hurt [them] and try to get away,” officers approached his car cautiously, with guns drawn. R. vol. 3, at 294. They then ordered him to the ground, handcuffed him, and sat him on a curb while they continued to try to definitively identify the bank robber. These represent reasonable steps in light of the threat posed by an armed bank robber. Second, we find that Paetsch’s detention was not unreasonably long. We do not impose a rigid time limit on investigative detentions. United States v. Sharpe, 470 U.S. 675, 685 (1985). But the detention must “not exceed the reasonable duration required to complete the purpose of the stop.” United States v. Rice, 483 F.3d 1079, 1082 (10th Cir. 2007). Once police had individualized reasonable suspicion of Paetsch and separated him from the barricaded group of innocent motorists, they could detain him for the time it actually took to get the beacon to locate the tracker. See United States v. Villa–Chaparro, 115 F.3d 797, 802–03 (10th Cir. 1997) (detention of over forty minutes spent waiting for a drug-sniffing dog did not violate the Fourth Amendment). Here, Paetsch’s investigatory detention lasted about an hour and a half, from the beginning of the group seizure until his arrest. During that time, the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S. at 686. In particular, they waited for the handheld beacon. It is true that, faced with the delays, Lt. Lertch could have let all 20 cars loose, but he was reasonably concerned about the risk of a high-speed chase. He also decided not to release the cars one-by-one because he was reasonably concerned that the bank robber could then use his car as a weapon to injure an officer. The beacon’s delayed arrival prolonged - 22 - Paetsch’s detention, but under the circumstances, it was “no longer than reasonably necessary” to identify Paetsch as the bank robber and arrest him. McArthur, 531 U.S. at 332. CONCLUSION The barricade in this case did not violate Paetsch’s Fourth Amendment rights because, at least until individualized suspicion materialized, the public interest outweighed the intrusions on private liberty. After that, the officers’ removal of Paetsch from his car was not unreasonably intrusive, and the officers’ investigatory detention was not unreasonably long. Having found no Fourth Amendment violation, we affirm the district court’s order denying Paetsch’s motion to suppress. - 23 - No. 13-1169, United States v. Paetsch BRISCOE, Chief Judge, concurring. I concur in the result. Although I agree with the majority that the roadblock implemented by the police in this case was constitutional at its inception, I disagree with the majority that the police developed individualized reasonable suspicion of Paetsch within approximately 29 minutes of the beginning of the roadblock. To be sure, it is undisputed that approximately 29 minutes after the initiation of the roadblock, Paetsch and another individual were removed from their vehicles, handcuffed, and directed to sit on a nearby curb, based upon what the police perceived to be suspicious behavior on their part. But the record indicates that this was a protective measure taken by the police to ensure officer and public safety, rather than an identification or seizure of the person the police believed to be the bank robber. Quite simply, I find no support for the conclusion reached by the majority that the police had an individualized reasonable suspicion of Paetsch at that point in their investigation. Notably, the police informed Paetsch, after he was removed from his vehicle and handcuffed, that he was not a suspect and they asked for, but were denied, his consent to search his vehicle. United States v. Paetsch, 900 F. Supp. 2d 1202, 1209 (D. Colo. 2012). Further, following the removal and handcuffing of Paetsch and the other individual, the police continued to wait for the homing beacon to arrive and be used. And, long after Paetsch and the other individual were removed from their vehicles and handcuffed, the police removed all persons who were single occupants of vehicles and handcuffed them. In doing so, high-risk traffic stop techniques were utilized, with police officers in teams, and with weapons drawn, approaching the vehicles from behind. Ultimately, it appears that the police did not truly develop reasonable individualized suspicion of Paetsch until at least 5:28 p.m. (approximately 87 minutes after the initiation of the roadblock) when the police, in conducting their “secondary search” of every vehicle, observed through the front passenger side window of Paetsch’s vehicle “a $2,000 bank ‘money band,’ a slip of colored paper from banks that wraps around a stack of bills.” Id. at 1210. But, even if I were to conclude that the length of the stop resulted in a violation of Paetsch’s constitutional rights, I am not persuaded that this is an appropriate case in which to apply the exclusionary rule. As the Supreme Court has explained, the exclusionary rule is a “prudential” doctrine created to “compel respect for the constitutional guaranty” by “deter[ring] future Fourth Amendment violations.” Davis v. United States, 131 S.Ct. 2419, 2426 (2011) (internal quotation marks and citation omitted). Consequently, the Supreme Court has “limited the rule’s operation to situations in which this purpose is thought most efficaciously served.” Id. (internal quotation marks omitted). “Where suppression fails to yield appreciable deterrence, exclusion is clearly . . . unwarranted.” Id. at 2426-27 (internal quotation marks omitted). In other words, “[f]or exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id. at 2427. In this case, the record firmly establishes that the police acted in good faith, 2 both in initiating the roadblock and in attempting to identify the bank robber among the stopped motorists. The long delay in actually identifying Paetsch as the robber was not the result of “deliberate, reckless, or grossly negligent” conduct on the part of the police, id. (internal quotation marks omitted), nor was it the result of “any recurring or systemic negligence on the part of law enforcement,” id. at 2428 (internal quotation marks omitted). Rather, the record indicates that the delay was the result of “simple, isolated negligence” on the part of the police in obtaining and initially using the homing beacon. Id. at 2427-28 (internal quotation marks omitted). In short, the police errors that occurred in this case “lack[] the culpability required to justify the harsh sanction of exclusion.” Id. at 2428. For these reasons, I affirm the district court’s order denying Paetsch’s motion to suppress. 3	01-03-2023	04-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/1106911/	981 So.2d 298 (2008) CANTRELL v. GREEN. No. 2006-CT-00025-SCT. Supreme Court of Mississippi. May 22, 2008. Petition for writ of certiorari. Granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3051556/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAM G. OSBORNE,  Plaintiff-Appellee, v. No. 06-35875 DISTRICT ATTORNEY’S  D.C. No. CV-03-00118-RRB OFFICE FOR THE THIRD JUDICIAL DISTRICT; ADRIENNE BACHMAN,* OPINION District Attorney, Defendants-Appellants.  Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding Argued and Submitted October 10, 2007—San Francisco, California Filed April 2, 2008 Before: Alfred T. Goodwin, Melvin Brunetti, and William A. Fletcher, Circuit Judges. Opinion by Judge Brunetti Adrienne Bachman is substituted for former District Attorney Susan A. Parkes as appellant pursuant to Fed. R. App. P. 43(c)(2). 3359 OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3363 COUNSEL Nancy R. Simel, Assistant Attorney General, Anchorage, Alaska, for the defendant-appellant. Peter J. Neufeld and Colin Starger, Innocence Project, Benja- min N. Cardozo School of Law, New York, New York; Ran- 3364 OSBORNE v. DISTRICT ATTORNEY’S OFFICE dall S. Cavanaugh, Kalamarides & Lambert, Anchorage, Alaska; and Robert C. Bundy, Dorsey & Whitney LLP, Anchorage, Alaska, for the plaintiff-appellee. OPINION BRUNETTI, Circuit Judge: William Osborne, an Alaska prisoner, brought this action under 42 U.S.C. § 1983 to compel the District Attorney’s Office in Anchorage to allow him post-conviction access to biological evidence—semen from a used condom and two hairs—that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual inno- cence, intends to subject the evidence, at his expense, to STR and mitochondrial DNA testing, methods that were unavail- able at the time of his trial and are capable of conclusively excluding him as the source of the DNA. In a prior appeal, Osborne v. District Attorney’s Office, 423 F.3d 1050, 1056 (9th Cir. 2005) (hereinafter Osborne I),1 we held that Heck v. Humphrey does not bar Osborne’s § 1983 action because, even if successful, it will not necessarily dem- onstrate the invalidity of his conviction. We also remanded for the district court to address in the first instance whether the denial of access to the evidence violates Osborne’s feder- ally protected rights. In this post-remand appeal, we affirm the judgment of the district court that, under the unique and specific facts of this case and assuming the availability of the evidence in question, Osborne has a limited due process right of access to the evi- dence for purposes of post-conviction DNA testing, which 1 There are three prior “Osborne” appellate opinions, one by this court and two by the Alaska Court of Appeals. The two state opinions are both titled Osborne v. State and will be referred to as State I and II. OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3365 might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief. I A Following a March 1994 jury trial in Alaska Superior Court, Osborne was convicted of kidnapping, assault, and sexual assault, and was sentenced to 26 years imprisonment, with 5 years suspended. The charges arose from a March 1993 incident in which the victim, a female prostitute named K.G., after agreeing to perform fellatio on two male clients, was driven to a secluded area of Anchorage and brutally attacked. See generally Jackson v. State, Nos. A-5276, A- 5329, 1996 WL 33686444, at 1 (Alaska Ct. App. Feb. 7, 1996) (consolidated direct appeal). At gunpoint, K.G. was forced to perform fellatio on the driver while the passenger vaginally penetrated her with his finger and penis. The driver did not wear a condom, but the passenger wore a blue condom that K.G. had brought with her. When K.G. later refused their orders to get out of the car, the driver hit K.G. in the head with the gun, and at the driver’s urging the passenger choked her. K.G. eventually attempted to flee, but her attackers pursued and beat her with an axe handle. As she lay in the snow in the fetal position and played dead, she heard the gun fire and felt a bullet graze her head. Though she could not see her attackers’ faces, judging from their pants and footwear she believed it was the passenger who shot her. The attackers then partially covered K.G. with snow and fled in the car, leaving her for dead. K.G. heard the car drive away but continued to lie under the snow until she was sure her attackers had gone. She then got up, walked to the main road, flagged down a passing car, told its occupants what had happened, and—hoping to avoid the police—asked only for a ride home. The following day, 3366 OSBORNE v. DISTRICT ATTORNEY’S OFFICE however, a neighbor of one of the car’s occupants notified the police, who contacted K.G. Though initially uncooperative, K.G. eventually described the incident. K.G. underwent a physical examination, during which hair and blood samples were collected. A vaginal examination was not performed, however, because the passenger-rapist had worn a condom and K.G. had bathed repeatedly since the attack. At the crime scene, Anchorage Police recovered from the snow a used blue condom, part of a condom wrapper, a spent shell casing, and two pairs of K.G.’s grey knit pants stained with blood. The blue condom and shell casing were found “very near” each other and in close proximity to bloody patches of snow and the disturbed berm of snow where K.G. had been partially buried. A layer of new snow, which had fallen the morning after the attack, aided the police in distin- guishing between tire tracks made the night before by the assailants’ car and tracks made the following day by two known vehicles. Those cars were owned by K.G.’s rescuers and their neighbor, who had visited the crime scene the day after the incident before contacting the police. A week later, military police stopped Dexter Jackson for a traffic infraction. When Jackson opened his glove box to retrieve his registration, the officer spotted a gun case, which proved to hold a .380 caliber pistol. A further search of the car revealed a box of ammunition and a pocketknife. Observing that Jackson, his car, and his passenger at the time (who was not Osborne) resembled composite sketches that had been cir- culated after the assault on K.G., the military police contacted the Anchorage Police, whom Jackson told that Osborne was his accomplice on the night of the assault. K.G. later identified Jackson and Osborne from photo- graphic arrays. In identifying Jackson’s accomplice, K.G. indicated that Osborne’s and another person’s photos were the “most familiar” to her and Osborne was “most likely” to have been the passenger who raped and shot her. K.G. also identi- OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3367 fied Jackson’s car, and the police matched tire tracks at the crime scene to Jackson’s car. K.G. also identified the pocket- knife found in Jackson’s car as hers, and ballistics tied the spent shell casing found at the crime scene to Jackson’s pistol. The State’s crime lab subjected sperm found in the used condom to “DQ Alpha” DNA testing, which, similar to ABO blood typing, reveals the alleles present at a single genetic locus. The results excluded K.G., Jackson, and James Hunter (presumably Jackson’s passenger when he was arrested), and showed that the sperm had the same DQ Alpha type as Osborne. That same DQ Alpha type is shared, however, by 14.7 to 16 percent of African Americans and thus can be expected in one of every 6 or 7 black men. A DNA testing method called “RFLP,” which was rela- tively more discriminating than DQ Alpha typing but, accord- ing to the State, “not quite as discriminating as the testing [Osborne] now seeks to conduct,” was also available pre-trial but was not conducted on the sperm.2 The State’s crime lab expert considered sending out the sample for more discrimi- nating testing, which was then available through the FBI, but did not because, at least at that time, more discriminating test- ing required a better quality sample than was provided in the condom and the expert “felt that the sample was degraded.” Defense counsel also considered and rejected the option. 2 The State’s concessions that the RFLP DNA testing available pre-trial is “not quite as discriminating as” the STR and mitochondrial DNA testing Osborne now seeks, and that these methods were not available pre-trial, is an apparent reversal of the State’s representation to the state court that “the DNA testing that Osborne proposes to perform on this evidence existed at the time of Osborne’s trial, and . . . Osborne’s trial attorney was aware of this and consciously chose not to seek more specific testing.” Osborne v. State, 110 P.3d 986, 992 (Alaska Ct. App. 2005). According to the Superior Court’s dismissal order that was on appeal in that case, Osborne’s state claims involved (1) ineffective assistance at trial based on counsel’s failure to pursue “RFLP” testing, and (2) a request for post- conviction “mitochondrial DNA” testing. 3368 OSBORNE v. DISTRICT ATTORNEY’S OFFICE Counsel met with the DNA expert from the State crime lab, reviewed DNA research articles, and conferred with a Fair- banks public defender who was litigating the scientific basis of DNA testing. But defense counsel’s explanation for not pursuing pre-trial RFLP testing differs from the State’s expert’s reasons. According to her post-conviction affidavit, counsel disbelieved Osborne’s statement that he did not com- mit the crime, was concerned about a more inculpatory result nullifying Osborne’s misidentification defense, and concluded that “Osborne was in a strategically better position without RFLP DNA testing,” especially given the inherent uncertainty in the DQ Alpha results. The police also recovered two pubic hairs: one from the used blue condom, and a second from K.G.’s sweatshirt, which she had lain on top of during the sexual assault. DQ Alpha typing of these hairs was unsuccessful, likely because the sample was too small for analysis. Based on microscopic analysis, however, the State’s expert opined that both hairs were “dissimilar” to Jackson and Hunter but were “consis- tent” with having come from Osborne because they “exhibited the same microscopic features” as Osborne’s pubic hair sam- ple. Additional hairs having “negroid features” were also found on K.G.’s clothing but were inconsistent with any of the suspects investigated by police. Osborne and Jackson were tried jointly before a jury. Osborne presented alibi and mistaken identity defenses, spe- cifically arguing that there was too little time for him to have participated in the crime and pointing out flaws in K.G.’s identification. K.G. was not wearing her glasses on the night of the attack. She described the passenger who attacked her as black, between 25 to 30 years old, 6 feet tall, weighing 180-190 pounds, clean shaven, having his hair shaved on the sides and longer on top, and not wearing any jewelry. Osborne actually was 20 years old, weighed 155 pounds, and had a mustache. K.G.’s identification of Osborne was also cross-racial, Osborne being black and K.G. being white. OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3369 Nonetheless, at trial K.G. pointed to Osborne and identified him as the passenger who attacked her. Besides the biological and victim-eyewitness testimony, there was also circumstantial evidence of Osborne’s culpabil- ity. Paper tickets from the Space Station arcade, where Osborne had been before the crime, were found in Jackson’s car. One group of witnesses saw Osborne get into Jackson’s car before the time of the crime, and another group saw Osborne with Jackson after the crime and reported seeing blood on Osborne’s clothing. Apparently, no trace evidence of blood on Osborne’s clothing was admitted at trial, however. The jury rejected Osborne’s mistaken identity and alibi defenses and convicted him of kidnapping, first-degree assault, and two counts of first-degree sexual assault, although he was acquitted of two counts of attempted first-degree mur- der and one count of sexual assault. On direct appeal, the Alaska Court of Appeals rejected Osborne’s insufficient evi- dence claim and his other challenges and affirmed his convic- tion. Jackson, 1996 WL 33686444, at 7-8. Osborne did not seek direct review in the Alaska Supreme Court. B Osborne next filed an application for post-conviction relief in Alaska Superior Court, arguing first that his trial counsel was ineffective for failing to pursue RFLP testing, which was a potentially more precise type of DNA testing and was avail- able at the time; and second that he has a due process right, under either the state or federal constitution, to have evidence retested using DNA testing methods that were not available until after his trial. In June 2002, the Superior Court denied his application. Osborne not only appealed that decision to the Alaska Court of Appeals, he also subsequently filed the underlying § 1983 action in federal district court. While his state appeal and federal action were pending, in April 2004 Osborne also applied for discretionary parole with 3370 OSBORNE v. DISTRICT ATTORNEY’S OFFICE the Alaska Board of Parole. In his written application, Osborne confessed to participating in the attack on K.G. and described his actions in detail. He also confessed at his August 2005 hearing before the Parole Board and stated that he had told his mother and lawyer the truth about the incident. But despite his efforts at accepting responsibility, Osborne was denied parole. Osborne also lost his state appeal. In reviewing the Supe- rior Court’s dismissal of Osborne’s petition for post- conviction relief, the Alaska Court of Appeals affirmed in part, remanded in part for further proceedings, and retained jurisdiction in the interim. Osborne v. State, 110 P.3d 986, 995-96 (Alaska Ct. App. 2005) (hereinafter State I). The court rejected Osborne’s ineffective assistance claim, holding that he failed to establish deficient performance. Like the Superior Court, the Court of Appeals noted that trial counsel “re- searched and considered” RFLP DNA testing, but decided against it for fear that a more discriminating test would further inculpate Osborne. That decision, the court concluded, was a “tactical” one that fell within the permissible range of attor- ney competence. Id. at 991-92. The court made no mention of the State’s DNA expert’s trial testimony that the sperm sam- ple was too degraded to even permit RFLP testing. As to Osborne’s due process claim, the Court of Appeals initially observed that a prisoner “apparently” has no federal due process right to present new post-conviction evidence to establish a freestanding claim of factual innocence, absent an underlying constitutional defect at trial. Id. at 993, 995. “[A]s a matter of Alaska constitutional law,” however, the court was “reluctant to hold that Alaska law offers no remedy to defen- dants who could prove their factual innocence,” and it adopted a three-part test, which had been adopted by several other states, for cases in which defendants seek post- conviction DNA testing. Id. at 995. The court therefore remanded to the Superior Court for the limited purpose of determining whether Osborne could satisfy the test and, if so, OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3371 whether Osborne’s claim was otherwise procedurally barred under Alaska law. Id. The remand proceedings in Alaska Superior Court were still pending when we decided Osborne I in September 2005. Eight months later, the Alaska Superior Court held that Osborne failed to satisfy the three factors set forth by the Alaska Court of Appeals in State I and therefore denied Osborne’s request for DNA testing. The Superior Count found that (1) “Osborne’s conviction did not rest primarily upon eyewitness identification evidence,” (2) “no . . . demon- strable doubt as to Mr. Osborne’s identification [as the perpe- trator] has been established,” and (3) “[e]ven assuming that the DNA of either the pubic hair or the semen was tested and found not to be Mr. Osborne’s, . . . such evidence, if obtained, would not be conclusively exculpatory.” In Osborne v. State, 163 P.3d 973, 979-81 (Alaska Ct. App. 2007) (hereinafter State II), the Alaska Court of Appeals affirmed those three findings and the Superior Court’s under- lying factual findings and reasoning. Although Osborne sub- sequently filed a petition for review in the Alaska Supreme Court, which was pending when we heard oral argument in this case, that petition has since been denied. Osborne v. State, No. S-12799 (Alaska Jan. 22, 2008). C In June 2003—one year after the Alaska Superior Court first denied Osborne’s state petition for post-conviction relief, and one year before Osborne filed his application for discre- tionary parole in which he provided his written confession— Osborne filed the underlying action under 42 U.S.C. § 1983 alleging that the Anchorage District Attorney’s Office, then- District Attorney Susan Parkes, the Anchorage Police Depart- ment, and then-Chief of Police Walt Monegan violated his rights under the United States Constitution by denying him post-conviction access to evidence for DNA testing. Specifi- 3372 OSBORNE v. DISTRICT ATTORNEY’S OFFICE cally, he alleges violations of: (1) his due process right to access exculpatory evidence; (2) his due process right to dem- onstrate actual innocence; (3) his Eighth Amendment right to be free from cruel and unusual punishment; (4) his right to a fair clemency hearing; (5) his Sixth Amendment rights to con- frontation and compulsory process; and (6) his due process and equal protection rights to meaningful access to the courts. He requests as a remedy “the release of the biological evidence”—the semen and pubic hair from the blue condom and the pubic hair from K.G.’s sweater—and “the transfer of such evidence for DNA testing.” Osborne’s complaint explains that he intends to subject the evidence to two forms of DNA testing: Short Tandem Repeat (“STR”) analysis and Mitochondrial DNA (“mtDNA”) analy- sis. Unlike the DQ Alpha analysis used at trial, which looks to only one genetic locus, STR analysis examines the alleles at 13 genetic loci. Thus, it has the power to produce a far more specific genetic profile—one shared by one in a billion people, rather than one in 6 or 7. See generally United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc) (discussing the science and accuracy of STR testing). Moreover, if the DNA samples are unsuitable for STR anal- ysis, Osborne intends to submit them to mtDNA analysis. STR analysis, like DQ Alpha analysis, examines DNA found in the nucleus, and is incapable of reaching a result from a hair sample unless the root or follicle is attached. By contrast, mtDNA analysis looks to DNA found in the mitochondria, and does not require the presence of a root or follicle. Osborne asserts that neither STR nor mtDNA analysis was available at trial and that he will have the testing performed at his expense. In 2003, the State filed motions to dismiss Osborne’s § 1983 action, arguing that Osborne’s simultaneously pending state petition for post-conviction relief required federal court abstention under Younger v. Harris, 401 U.S. 37 (1971), and, OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3373 alternatively, that under Heck v. Humphrey, 512 U.S. 477 (1994), Osborne’s claims are not cognizable in a § 1983 action and may be brought only in a habeas proceeding. The district court granted the motion, holding that Younger absten- tion was inapplicable but that dismissal was required under Heck because Osborne sought to “set the stage” for an attack on his conviction. Osborne appealed, and in Osborne I we reversed, holding that Heck does not bar a prisoner’s § 1983 action seeking post-conviction access to biological evidence for purposes of DNA testing because, even if successful, the action will not necessarily demonstrate the invalidity of his conviction. Osborne v. District Attorney’s Office, 423 F.3d 1050, 1056 (9th Cir. 2005). We observed that “success would yield only access to the evidence—nothing more,” “there is a significant chance that the results will either confirm or have no effect on the validity of Osborne’s confinement” because “further DNA analysis may prove exculpatory, inculpatory, or inconclu- sive,” and “even if the results exonerate Osborne, a separate action—alleging a separate constitutional violation altogether —would be required to overturn his conviction.” Id. at 1054- 55. Expressing no opinion on the merits of Osborne’s claims, we remanded to the district court to address in the first instance whether Osborne has been deprived of a federally protected right. Id. at 1056. On remand, Osborne moved for summary judgment on his § 1983 claims. Days later, Osborne along with the Anchorage Police Department and Chief of Police Monegan filed a stipu- lation dismissing those two defendants in exchange for their withdrawal of opposition to Osborne’s claim for DNA testing and their agreement to make the evidence available as required by any final court order or upon direction from the State of Alaska, Department of Law. The remaining “State” defendants—the District Attorney and the District Attorney’s Office—filed both an opposition 3374 OSBORNE v. DISTRICT ATTORNEY’S OFFICE to Osborne’s summary judgment motion and a motion to stay proceedings based on the Colorado River and Pullman abstention doctrines. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). The district court denied the abstention motion, and the State has not appealed that denial. Months later, and just days after the Alaska Superior Court issued its Findings on Remand from State I, the State filed a cross-motion for summary judgment. The State asserted, in addition to its arguments opposing Osborne’s motion, that the Superior Court’s factual findings were entitled to preclusive effect in federal court and otherwise support the State’s posi- tion. This time the district court ruled in Osborne’s favor. Osborne v. Dist. Attorney’s Office, 445 F. Supp. 2d 1079 (D. Alaska 2006). After initially concluding that the Alaska Court of Appeals’ decision in State I “is not binding upon this Court,” the district court held that “there does exist, under the unique and specific facts presented, a very limited constitu- tional right to the testing sought.” Id. at 1080-81 (citing Har- vey v. Horan (Harvey II), 285 F.3d 298, 325 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing en banc); Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992); and Moore v. Lockyer, No. 04-1952, 2005 WL 2334350, at 8, 9 (N.D. Cal. Sept. 23, 2005)). The court continued: Significant to this conclusion is the fact that the test- ing sought was not available to Plaintiff . . . at the time of trial, the fact that the testing sought can be easily performed without cost or prejudice to the Government, and the fact that the test results can either confirm Plaintiff’s guilt or provide evidence upon which Plaintiff might seek a new trial. In this regard, and although the Court makes no findings as to whether Plaintiff would be entitled to a new trial, OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3375 the Court concludes that a favorable result for Plain- tiff might have a significant impact on a fact- finder[’]s evaluation of guilt or innocence. The Court also concludes that equity and funda- mental notions of fairness argue in favor of the relief Plaintiff seeks; especially, when considered in the appropriate context, e.g., the Government has no legitimate interest in punishing the innocent. The Court’s conclusion in this matter assumes the availability of the evidence sought. If the evidence were no longer available, for any legitimate reason, there exists no right to test it and no basis upon which Plaintiff could pursue the issue further. Id. at 1081-82 (footnote omitted). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s rulings on cross-motions for sum- mary judgment. Phillips v. Hust, 477 F.3d 1070, 1075 (9th Cir. 2007). We also review de novo the legal question of whether there exists a post-conviction right of access to evi- dence for DNA testing. Cf. id. at 1079. Whether the State’s refusal to grant access to evidence violates Osborne’s consti- tutional due process right is also reviewed de novo as a mixed question of fact and law. Cf. United States v. Duff, 831 F.2d 176, 177 (9th Cir. 1987). II [1] “It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Pennsyl- vania v. Ritchie, 480 U.S. 39, 57 (1987). Yet Ritchie, like the rest of the Supreme Court’s cases involving Brady rights, involved only the right to pre-trial disclosure. See id. (citing United States v. Agurs, 427 U.S. 97 (1976), and Brady v. 3376 OSBORNE v. DISTRICT ATTORNEY’S OFFICE Maryland, 373 U.S. 83, 87 (1963), both of which involved only pre-trial suppression); cf. id. at 60 (describing the duty to disclose as “ongoing,” yet simultaneously referencing only reconsideration of disclosure “as the proceedings progress” to ensure “the fairness of the trial”). The more novel question presented in this case is whether, and the extent to which, the Due Process Clause of the Fourteenth Amendment extends the government’s duty to disclose (or the defendant’s right of access) to post-conviction proceedings. [2] As both parties and the district court have recognized, this circuit’s closest precedent is Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992), in which we ordered the disclosure of potentially-exculpatory semen evidence in a habeas corpus proceeding where testing of the evidence was potentially material to a so-called “gateway” showing of actual innocence. Rather than relying on general discovery principles or a pre-trial Brady right, we expressly applied Brady as a post-conviction right, stating: [W]e believe the state is under an obligation to come forward with any exculpatory semen evidence in its possession. See Brady v. Maryland, 373 U.S. 83, 87, . . . (1963). We do not refer to the state’s past duty to turn over exculpatory evidence at trial, but to its present duty to turn over exculpatory evidence rele- vant to the instant habeas corpus proceeding. Thomas, 979 F.2d at 749-50. Although the State contends that Thomas is distinguishable on a variety of grounds, we find none of those arguments persuasive and conclude that Thomas is controlling here despite the factual and procedural differ- ences. [3] For instance, the State argues that Thomas involved pre- trial suppression in addition to post-conviction suppression, whereas Osborne had full pre-trial access to the biological evidence in question for purposes of DNA testing “using the OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3377 best technology available at that time.” Moreover, the State argues, in Thomas the petitioner claimed ineffective assis- tance based on trial counsel’s failure to test the evidence, whereas the Alaska state courts have already rejected Osborne’s similar ineffective assistance claim. But this is all rather beside the point given our reasoning in Thomas. It is patent in the above-quoted passage that in granting the peti- tioner a post-conviction right of access we expressly applied Brady as a post-trial right and specifically disclaimed reliance on a pre-trial Brady violation or any other pre-trial violation. Pursuant to Thomas, the more material facts here are that the STR and mtDNA testing methods now being requested were in fact not accessible to Osborne pre-trial, whether due to sup- pression, ineffective assistance of counsel, or historical scien- tific limitations; such methods are far more discriminating than the testing methods that were available pre-trial, such that only now can Osborne be identified or excluded as the source of the DNA to a virtual certainty; and, for the same reasons, these newly available methods have the potential to provide strong evidence upon which Osborne might seek post-conviction relief. Cf. Riofta v. State, 142 P.3d 193, 200, 203 (Wash. Ct. App. 2006) (distinguishing Thomas because Riofta had pre-trial access to the evidence and to testing “of equal accuracy” to that sought post-trial; also distinguishing a New Jersey case in which “DNA testing was not widely accepted and was expensive at the time of the . . . defendant’s trial”). At the time of briefing, the State further contended that the “Catch-22” that was present in Thomas does not exist here because Osborne had an alternative avenue for relief in state court, which he was at that time pursuing. As the Alaska Supreme Court has since denied Osborne’s petition for review in Osborne v. State, No. S-12799 (Alaska Jan. 22, 2008), the State’s argument is probably moot. But even if Osborne still had some available state remedy that he could pursue, the Catch-22 would remain. In both state and federal court the State has opposed Osborne’s access-to-evidence claim based 3378 OSBORNE v. DISTRICT ATTORNEY’S OFFICE on the argument that Osborne cannot prove his actual inno- cence; yet Osborne needs access to the evidence to make that very showing. Cf. Thomas, 979 F.2d at 749. Although the State further contends that even assuming favorable test results Osborne could not make a sufficient showing of actual innocence, that argument is out of place. The argument is cer- tainly relevant to the ultimate question of whether, given the state of the evidentiary record, the requested DNA testing would be sufficiently material to require disclosure in this case. See infra Part IV. But the State’s argument is irrelevant to the instant threshold issue of whether Osborne can even begin to invoke Thomas as establishing a post-conviction Brady right. Moreover, to the extent the existence of parallel state litigation might have raised abstention concerns, the State’s motions to dismiss or stay proceedings based on Youn- ger, Colorado River, and Pullman abstention were all denied by the district court, and the State failed to reassert its absten- tion arguments in either Osborne I or the instant appeal. [4] The State finally contends that Thomas is distinguish- able because Osborne does not have an ongoing federal habeas action to which the requested DNA testing would be material. According to the State, such a limitation on Thomas is necessary to prevent Brady from applying “in the abstract and in perpetuity.” We disagree and reject the notion that Thomas’ recognition of a post-conviction Brady right is inap- plicable per se in the absence of an ongoing habeas proceed- ing. While recognizing that Osborne’s sole purpose in bringing the underlying § 1983 action is to obtain post-conviction access to potentially exculpatory evidence and thereby “to ‘facilitate’ or ‘set the stage’ for a future attack on his convic- tion,” in Osborne I we specifically rejected the State’s posi- tion that a post-conviction access-to-evidence claim must be brought in habeas rather than under § 1983. 423 F.3d at 1055. Yet that would be the necessary consequence of the State’s proposed limitation of Thomas. The purportedly mandatory OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3379 habeas action would render any § 1983 action for access to evidence superfluous, leaving the habeas action as the exclu- sive vehicle for asserting Thomas rights. Thus, the State’s proposed limitation of Thomas does little more than rehash in different clothing the already rejected contentions that Osborne has failed to state a claim under § 1983 and “that a claim which can be brought in habeas must be brought in habeas.” Id. Furthermore, Osborne’s access-to-evidence claim has been pursued without undue delay and is specifically intended to support an application for post-conviction relief. Osborne has declared in his § 1983 complaint his intention, once he obtains the requested DNA testing, to file a petition for post- conviction relief based on a “freestanding” claim of actual innocence—i.e., despite the lack of any constitutional error at his trial, his incarceration is unconstitutional due to actual innocence—which Osborne might bring in either state or fed- eral court. Under Alaska law Osborne appears to have at least a poten- tially viable opportunity of bringing a freestanding actual innocence claim in a second or successive petition for post- conviction relief. However unfavorable the court’s rejection of Osborne’s first petition in State II may be, his state law options are not foreclosed entirely. In a concurrence, a two- judge majority stated that, regardless of any otherwise appli- cable procedural bars (presumably including those against successive petitions), the Alaska Constitution might require court intervention if a defendant were to present “clear genetic evidence of [his] innocence,” and “[i]f Osborne could show that he were in fact innocent, it would be unconsciona- ble to punish him.” State II, 163 P.3d at 984-85 (Mannheimer, J., joined by Coats, C.J., concurring). Thus, despite the improbability of success on the merits given the court’s find- ings regarding the expected immateriality of the requested DNA testing, if Osborne’s hunt for new evidence exceeds the state courts’ expectations (which remains a possibility, see 3380 OSBORNE v. DISTRICT ATTORNEY’S OFFICE infra Part IV.B) his actual innocence claim might be cogniza- ble under the authority of Judge Mannheimer’s concurrence. Federal law presents a similar opportunity. The State would take the position that a freestanding actual innocence claim is not cognizable under federal law; however, the State also con- cedes that it is presently an open question. In Herrera v. Col- lins, 506 U.S. 390, 417 (1993), the Supreme Court assumed without deciding that such a claim is possible. And in House v. Bell, 547 U.S. 518 (2006), the Court again declined to resolve “the question left open in Herrera” in such a way as to suggest that it will remain unanswered until it is squarely presented by a petitioner actually making a persuasive show- ing of actual innocence. Id. at 554-55 (concluding that “what- ever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it”). The same might be said of the question of whether there should be a dis- tinction between capital and non-capital cases, although Her- rera did suggest equal treatment. See Herrera, 506 U.S. at 405 (“[W]e have ‘refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus.’ ” (quoting Murray v. Giar- ratano, 492 U.S. 1, 9 (1989) (plurality opinion))). In this circuit we not only have assumed that freestanding innocence claims are possible but also have articulated a minimum standard: “a habeas petitioner asserting a freestand- ing innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is proba- bly innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc); see also Jackson v. Calderon, 211 F.3d 1148, 1164-65 (9th Cir. 2000). In resolving the instant appeal, we need not decide the open questions surrounding freestanding actual innocence claims. Instead, we assume for the sake of argument that such claims are cognizable in federal habeas proceedings in both capital and non-capital cases under the standard set forth in Carriger. OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3381 Such a claim is not yet before us; it would require the filing of “a separate action—alleging a separate constitutional viola- tion altogether.” Osborne I, 423 F.3d at 1055. Also, even where an actual innocence claim has been filed, Herrera, House, Carriger, and Jackson all support the practice of first resolving whether a petitioner has made an adequate evidenti- ary showing of actual innocence before reaching the constitu- tional question of whether freestanding innocence claims are cognizable in habeas. And under Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002), the testing of potentially exculpatory evidence may be given precedence over the consideration of even juris- dictional questions involving pure issues of law. [5] In Majoy, we held that the district court should first order that testing be conducted, hold an evidentiary hearing to permit full development of the facts supporting a “gateway” actual innocence claim under Schlup v. Delo, 513 U.S. 298 (1995), and determine whether that claim was factually meri- torious, all before considering whether the claim was jurisdic- tionally barred. Majoy, 296 F.3d at 776-77. We reasoned that the issue of whether a gateway actual innocence claim pro- vides a constitutional exception to AEDPA’s statute of limita- tions was such an “important legal question” that it “is not appropriately addressed by us in a hypothetical context,” par- ticularly given the “ ‘fact-intensive nature of this [actual inno- cence] inquiry, together with the District Court’s ability to’ ” obtain the necessary evidence. Id. at 777 (quoting Schlup, 513 U.S. at 332). By extension, until Osborne has actually brought an actual innocence claim and has been given the opportunity to develop the facts supporting it, Osborne’s access-to- evidence claim may proceed on the well-established assump- tion that his intended freestanding innocence claim will be cognizable in federal court. There are two notable differences between the out-of- circuit and district court cases that do not recognize a post- conviction right of access to evidence and those that do. First, the former tend to conflate the right of access to evidence 3382 OSBORNE v. DISTRICT ATTORNEY’S OFFICE with the ultimate right to habeas relief. See, e.g., State I, 110 P.3d at 992, 993 (noting that Osborne claims a right of access to evidence, but analyzing whether Herrera permits a claim of actual innocence based on new evidence); Harvey v. Horan (Harvey I), 278 F.3d 370, 375 (4th Cir. 2002) (dismissing under Heck). The latter distinguish the two actions. See, e.g., Harvey v. Horan (Harvey II), 285 F.3d 298, 322-24 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing en banc). Second, courts denying a post-conviction right of access read Brady and its progeny as applying only as a trial right. E.g., Grayson v. King, 460 F.3d 1328, 1337, 1342 (11th Cir. 2006) (ultimately limiting its holding to “the particular cir- cumstances of this case”); Harvey I, 278 F.3d at 378-79. By contrast, courts recognizing a post-conviction right have done so not necessarily based on Brady itself but based on the due process principles that motivated Brady, including fundamen- tal fairness, the prosecutor’s obligation to do justice rather than simply obtain convictions, and the “constitutional imper- atives of ‘protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.’ ” Wade v. Brady, 460 F. Supp. 2d 226, 246 (D. Mass. 2006) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see also Harvey II, 285 F.3d at 316-18 (Luttig, J., respecting the denial of rehearing en banc); Moore v. Lockyer, 2005 WL 2334350, at 8 (N.D. Cal. Sept. 23, 2005), appeal docketed, No. 06-15016 (9th Cir. argued Oct. 15, 2007). [6] This circuit has already staked out positions on both of these issues. In Osborne I, 423 F.3d at 1054-55, we drew a sharp distinction between access-to-evidence and habeas claims in holding that Osborne’s access claim is not barred by Heck v. Humphrey. And in Thomas, 979 F.2d at 749-50, we expressly applied Brady as a post-conviction right in a habeas proceeding based on the requirements of fundamental fair- ness. Faced now with the argument that Thomas should be limited to cases with ongoing habeas petitions, we reject that view and hold that Osborne is entitled to assert in this § 1983 OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3383 action the due process right to post-conviction access to potentially exculpatory DNA evidence that we recognized in Thomas. III The State alternatively contends that, even if there is a post- conviction right of access, the scope of the right recognized by the district court is too broad. It proposes a narrower stan- dard for judging the materiality of evidence favorable to Osborne. In the State’s view, before it is obligated to disclose any evidence post-conviction, Osborne should be required to satisfy the extraordinarily high standard of proof that applies to freestanding claims of actual innocence. Thus, under our case law, Osborne would be required to “go beyond demon- strating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Carriger, 132 F.3d at 476; see also Jackson, 211 F.3d at 1164. We disagree. The fundamental flaw in the State’s position is that it effec- tively equates Osborne’s access-to-evidence claim with a habeas claim. Under the State’s conception, Osborne would have to satisfy the same actual innocence standard in order to merely obtain potentially exculpatory evidence as he would in order to actually overturn his conviction. The only difference is in the factual predicate: we would analyze Osborne’s access claim taking into account the eventuality that further DNA testing will be favorable to Osborne, whereas habeas relief would require the actual results. The application of Carriger’s legal standard, however, would otherwise be identical. [7] The State is getting ahead of itself. Obtaining post- conviction access to evidence is not habeas relief. And requir- ing Osborne to demonstrate that he would be entitled to habeas relief if the test results are favorable in order even to conduct such testing is fundamentally inconsistent with Brady, Thomas, and Osborne I. Under these authorities, the most stringent materiality standard for simply obtaining post- 3384 OSBORNE v. DISTRICT ATTORNEY’S OFFICE conviction access to evidence must be more lenient than the standard of proof Osborne will ultimately have to satisfy in order to obtain habeas relief. While Brady ensures a fair trial, a defendant’s right to pre- trial disclosure under Brady is not conditioned on his ability to demonstrate that he would or even probably would prevail at trial if the evidence were disclosed. Rather, disclosure is required if there is a “reasonable probability” of a more favor- able result at trial, and “the adjective is important.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). As the Supreme Court explained in Kyles, “a showing of materiality does not require demonstration by a preponderance that disclosure of the sup- pressed evidence would have resulted ultimately in the defen- dant’s acquittal.” Id. Nor is it “a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434- 35. Instead, materiality for Brady purposes is established “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435. In Thomas, we extended Brady as supporting a habeas peti- tioner’s post-conviction right to obtain access to semen evi- dence for purposes of DNA testing. 979 F.2d at 749-50. While we did not expressly adopt Brady’s materiality stan- dard for post-conviction access claims or otherwise define the applicable materiality standard, our decision was in general accordance with the principles underlying Brady materiality. Despite the fact that the petitioner ultimately needed the semen evidence in order to establish a Schlup “gateway” claim of actual innocence for purposes of overcoming a pro- cedural default, we did not condition the petitioner’s right of access on his ability to first demonstrate that favorable test results would in fact enable the petitioner to make a colorable showing of actual innocence. Instead, we merely noted that “[a] semen sample, or tests thereof, might enable him to make OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3385 such a showing,” “[i]n light of the obvious exculpatory poten- tial of semen evidence in a sexual assault case.” Id. at 749, 750 n.2 (emphasis added). We put off analyzing the complete factual basis for petitioner’s actual innocence claim until the evidence, if it even still existed, was actually produced and tested. Id. at 750. Similarly, in Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997), we held that a habeas petitioner was statutorily entitled to post-conviction testing of physical evidence and other discov- ery because such “discovery is essential for Jones to develop fully his ineffective assistance of counsel claim,” and “the test results may establish the prejudice required to make out such a claim.” Id. at 1009 (emphasis added). And in Majoy, we found sufficient “the distinct possibility that given the oppor- tunity, Majoy may be able to muster a plausible factual case meeting the exacting gateway standard [of actual innocence] established by the Supreme Court in Schlup.” 296 F.3d at 775 (emphasis added). In Osborne I, we did not address the standards Osborne might have to satisfy in order to prevail on his access-to- evidence claim. But our decision that Heck v. Humphrey does not bar Osborne’s § 1983 action was based on the rationale that Osborne’s access-to-evidence claim is not the functional equivalent of a habeas petition because it would not necessar- ily demonstrate the invalidity of his conviction. Indeed, “a separate action—alleging a separate constitutional violation altogether—would be required to overturn his conviction.” Osborne I, 423 F.3d at 1055. Nonetheless, rather than allow the objective facts to come to light so that Osborne can actu- ally file his actual innocence claim and support it with hard evidence, the State effectively would have us fully analyze that same claim as a hypothetical by adopting the same habeas standard in the instant action. In accordance with the cases discussed above, we decline to do so. For his part, Osborne contends that the ordinary pre-trial Brady materiality standard is the most appropriate standard 3386 OSBORNE v. DISTRICT ATTORNEY’S OFFICE for evaluating a prisoner’s post-conviction right of access to evidence. Thus, he proposes that we require only a reasonable probability that, had the evidence been disclosed to the defense, the result of his trial would have been different. See Kyles, 514 U.S. at 434-35; United States v. Bagley, 473 U.S. 667, 682 (1985). As it turns out, however, Osborne’s case for disclosure is so strong on the facts that his proposed legal standard, which would give him the benefit of both the presumption of inno- cence and the requirement of jury unanimity for conviction, sets the bar far lower than what he is able to show in this case. Wherever the bar is, he crosses it. This case therefore does not require us to determine the full breadth of post-conviction Brady rights. The precise height at which the materiality bar should be set is largely an academic question, which we may leave to another day and another case that truly presses the issue. Resolving the instant case requires us to determine only that Osborne’s showing of materiality is sufficient to require disclosure, and not whether the same due process right might be invoked upon a lesser showing. [8] In accordance with that reservation and our analysis in rejecting the State’s proposal as setting the bar too high, we hold that the standard of materiality applicable to Osborne’s claim for post-conviction access to evidence is no higher than a reasonable probability that, if exculpatory DNA evidence were disclosed to Osborne, he could prevail in an action for post-conviction relief. Taking into account Osborne’s declared intention to file a freestanding claim of actual inno- cence, materiality would be established by a reasonable prob- ability that Osborne could “affirmatively prove that he is probably innocent.” Carriger, 132 F.3d at 476. And to para- phrase the Supreme Court’s definition of “reasonable proba- bility,” this materiality standard does not require a demonstration by a preponderance that disclosure of the DNA evidence will ultimately enable Osborne to prove his inno- cence. See Kyles, 514 U.S. at 434. The question is not whether OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3387 Osborne would more likely than not be granted habeas relief with the evidence, but whether in the absence of the DNA evi- dence Osborne would receive a fair habeas hearing, under- stood as a hearing resulting in a judgment “worthy of confidence.” Id. As discussed next, considered in light of the particular facts of this case, this standard is satisfied by the potential proba- tive value of the DNA evidence to which Osborne seeks access. IV A As an initial matter, the State contends that in assessing the potential materiality of further DNA testing, this court should give preclusive effect to three factual findings made by the Alaska Superior Court, and later affirmed by the Alaska Court of Appeals in State II, when the court rejected Osborne’s request for DNA testing under state law. Those findings are that (1) Osborne’s conviction did not rest primarily on eyewit- ness identification evidence, (2) there was no demonstrable doubt concerning the accuracy of the victim’s identification of Osborne as the perpetrator, and (3) additional DNA testing would not conclusively establish Osborne’s innocence. State II, 163 P.3d at 978. [9] Whether the state court’s factual findings have preclu- sive effect in this federal proceeding is a mixed question of law and fact that we review de novo. See Littlejohn v. United States, 321 F.3d 915, 919 (9th Cir. 2003). In § 1983 actions, we apply state law to determine the preclusive effect of a state court’s findings. Heck v. Humphrey, 512 U.S. 477, 480 n.2 (1994). Under Alaska law, factual findings are entitled to pre- clusive effect if the party against whom estoppel is asserted was a party to or in privity with a party to the prior action, the issue to be precluded is identical to that decided in the first 3388 OSBORNE v. DISTRICT ATTORNEY’S OFFICE action, and the issue in the first action was resolved by a final judgment on the merits. Holmberg v. State, 796 P.2d 823, 827 (Alaska 1990). The parties here raise no dispute regarding the privity and final judgment requirements. They dispute only whether the issues decided by the Alaska courts are identical to the issues raised by Osborne’s access-to-evidence claim under federal law. The state court’s first and second findings regarding the evidence supporting Osborne’s identification as the perpetra- tor are certainly relevant to our inquiry, but only insofar as such evidence is part of the broader evidentiary backdrop against which the materiality of exculpatory DNA tests is to be analyzed. The state court’s findings fundamentally differ from our materiality inquiry, however, in that they are exclu- sively historical, focusing only on the state of the evidence as it existed at trial and whether that trial record would lead one to question the integrity of that evidence, much like a suffi- ciency of the evidence inquiry under Jackson v. Virginia, 443 U.S. 307, 324 (1979). By contrast, the materiality of sup- pressed evidence and the viability of an actual innocence claim based on new evidence are far more comprehensive and forward-looking inquiries that do not “turn on discrete find- ings regarding disputed points of fact.” House, 547 U.S. at 539-40. “One does not show a Brady violation by demonstrat- ing that some of the inculpatory evidence should have been excluded [or was inherently flawed], but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence” in a decision made without the evidence. Kyles, 514 U.S. at 435. In assessing whether DNA results favorable to Osborne would be material to an actual innocence claim, we “must consider all the evidence, old and new, incriminating and exculpatory,” and “make a probabilistic determination about what [a reason- able fact-finder] would do.” House, 547 U.S. at 538 (internal quotation marks omitted). OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3389 [10] Thus, only the state court’s third finding—which is essentially its “materiality” finding under Alaska law—is in play here. But that finding is also not entitled to preclusive effect in this case because it was made in conformity with a materiality standard under state law that is more stringent than any standard this court would apply under federal law. Whereas the Alaska courts inquired as to whether DNA tests excluding Osborne as the source of the genetic material would “conclusively establish Osborne’s innocence,” State II, 163 P.3d at 981 (emphasis added),3 we have determined that mate- riality under federal law requires Osborne to demonstrate, at most, only a reasonable probability that with favorable DNA test results he could affirmatively prove that he is probably innocent. Cf. House, 547 U.S. at 538, 553-54 (holding that, although there was not “conclusive exoneration,” the peti- tioner satisfied the Schlup standard for a gateway claim of actual innocence—“that more likely than not, in light of the new evidence, . . . any reasonable juror would have reason- able doubt”). Indeed, Alaska’s materiality standard for merely obtaining post-conviction access to evidence is more stringent than even this circuit’s standard for obtaining habeas relief 3 The Alaska Court of Appeals originally phrased the broader issue under Alaska law as “whether further DNA testing . . . would likely be conclusive on the issue of Osborne’s guilt or innocence.” State II, 163 P.3d at 980 (emphasis added). But that inquiry undergoes a significant metamorphosis as the opinion progresses. After the court acknowledges that further DNA testing could produce three different results— inculpatory, inconclusive, or exculpatory—from that point forward the court presumes test results favorable to Osborne and the word “likely” dis- appears from its statement of the legal standard. Id. Thus, the inquiry ulti- mately becomes: “assuming that this third alternative came to pass—i.e., assuming that a more discriminating DNA test showed that the genetic material did not come from Osborne—would this test result be conclusive evidence of Osborne’s innocence?” Id. Moreover, even if we have misread or were to ignore this shift, we would reach the same result. First, it is unclear whether “likely” equates to “reasonable probability” within the meaning of Bagley and Kyles. And second, a freestanding actual inno- cence claim under Carriger requires only an affirmative showing of prob- able innocence, not conclusive proof. 3390 OSBORNE v. DISTRICT ATTORNEY’S OFFICE based on a freestanding claim of actual innocence. Compare State II, 163 P.3d at 981 (“conclusively establish Osborne’s innocence”), with Carriger, 132 F.3d at 476 (“affirmatively prove that he is probably innocent”). We therefore afford the state court’s findings no preclusive effect in determining whether the evidence in question is sufficiently material to require disclosure by the State. B The State contends that even DNA test results excluding Osborne as the source of the semen and pubic hair from the blue condom and the pubic hair from K.G.’s sweater would not cast sufficient doubt on his conviction to require disclo- sure of that evidence. In the State’s view, notwithstanding the prosecution’s reliance on such biological evidence in obtain- ing Osborne’s conviction, the evidence actually might be entirely unrelated to the rape and therefore immaterial to Osborne’s claim of innocence. Regarding the semen and pubic hair from the blue condom, the State acknowledges that the condom was recovered at the crime scene, that expert testimony was presented at trial com- paring Osborne’s hair to the pubic hair from the condom and matching Osborne’s DQ Alpha type to that of the sperm from the condom, which placed Osborne within 14.7 to 16 percent of the black population sharing that type, and that in the pros- ecution’s closing argument it specifically relied on the combi- nation of this genetic evidence as proof of Osborne’s guilt. Nonetheless, considering the possibility that more precise DNA tests might conclusively establish that Osborne did not use the blue condom, the State now argues that such evidence was “not the sole basis for finding Osborne guilty” in that there was circumstantial evidence placing Osborne with Jack- son on the night in question and K.G. identified Osborne as the passenger-rapist. Moreover, the State argues, “[o]ther con- clusions about the donor of the DNA in the sperm and the hair associated with the condom were plausible and equally recon- OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3391 cilable with Osborne’s guilt.” Based on the fact that the con- dom was recovered by the police more than twenty-four hours after the assault and, according to the State’s characterization, “in a semi-secluded area on the outskirts of Anchorage that was convenient for conducting sexual trysts,” the State now proposes three possible scenarios for how Osborne could be guilty despite exculpatory DNA tests. First, the blue condom could have been discarded at the crime scene by persons unre- lated to Jackson and Osborne either before K.G.’s attack or after the attack but before the police searched the area. Sec- ond, the blue condom could have been used at an earlier time by another individual, left in Jackson’s car, and discarded or dropped at the crime scene by Jackson and Osborne. Or third, trace biological material—particularly the pubic hair found on the outside of the condom—could have been transferred to the condom from another surface after its use. The State makes a similar argument regarding the pubic hair that was found on K.G.’s sweater. According to the State, the fact that K.G. was working as a prostitute, the propensity hairs have for transference, and the ability of K.G.’s knitted acrylic sweater to hold a hair all point to the possibility that it might be anyone’s pubic hair, and not necessarily her attacker’s. Thus, despite the fact that at Osborne’s trial the prosecution argued that “we know that the person that did this had contact with [K.G.’s] sweater” because “[t]here’s a pubic hair on it,” the State now argues that it has never been estab- lished that the pubic hair was from one of the assailants and that it “could have originated from any person who had ever been near K.G. or from any person who had ever been in Jackson’s car” prior to the rape. [11] On their face, the State’s hypotheticals are not beyond the bounds of reason. But that is not the applicable federal standard for determining the materiality of evidence that is favorable to the accused, notwithstanding the Alaska Court of Appeals’ interpretation of Alaska law. Cf. State II, 163 P.3d at 980-81 (concluding that further DNA testing “would not 3392 OSBORNE v. DISTRICT ATTORNEY’S OFFICE conclusively establish Osborne’s innocence,” based in part on the reasoning that the blue condom “might have been coinci- dentally left in the vicinity by another person before the police arrived”). Those hypotheticals must be assessed in light of the entire record. And in that regard, although the State points to the circumstantial and eyewitness evidence that is supportive of the prosecution’s case at trial and Osborne’s conviction, the State fails to point to any evidence in the record that would affirmatively support its newly imagined alternative theories of the crime and accordingly rebut its own presentation at trial regarding the significance of the biological evidence as posi- tively identifying the real perpetrator. Cf. House, 547 U.S. at 547 (noting the lack of evidence “in the present record” rebut- ting the new evidence supporting petitioner’s actual inno- cence claim). The State’s hypotheticals are formulated based on nothing more than the very uncertainties that necessarily arise where new evidence upsets accepted notions of reality and forces a fundamental reassessment of the factual record. Even worse, they fail to account for evidence already in the record that seriously calls into question whether the State’s hypotheticals might have any basis in reality. Cf. id. at 546 (“This should be a matter for the trier of fact to consider in the first instance, but we can note a line of argument that could refute the State’s position.”). The trial record reveals that the attack occurred down a ser- vice road, which was located in an isolated area on the out- skirts of Anchorage off Point Woronzof Drive and near Earthquake Park. Although the State characterizes it as a “semi-secluded” location that was “convenient for conducting sexual trysts,” which is apparently why the perpetrators chose the location, there does not appear to be any evidence in the record indicating that the location was ever used for such a purpose by any other persons on that night or the following day, or for that matter any other day. To the contrary, the evi- dence presented at trial seems to indicate that no one else had been down that service road, either by car or on foot, around the time of the crime. There was already snow on the ground OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3393 before the attack, and a layer of new snow fell by the next morning. Judging by the tracks in the snow, only a few known individuals visited the area at the end of the service road both on the night of the assault and the next day. Even though the police did not arrive until twenty-four hours after the attack, they found only a few sets of footprints and tire tracks. The police made castings of some of the show prints in the snow, but those were matched to K.G.’s rescuers and their neighbor and were therefore eliminated as suspect prints. Similarly, the trial record indicates the police found only three sets of tire tracks, all of which were later matched to known vehicles— those owned by Jackson, K.G.’s rescuers, and their neighbor. Because of the old and new snow layers, the police were even able to distinguish each of the three sets of tracks by the time periods in which they were made. The tracks from Jackson’s car were in a lower layer of snow, while the two other sets were fresh. This was due to the fact that K.G. had walked to the main road before being picked up, and her rescuers and their neighbor did not visit the crime scene until the following day after the new snow had fallen. Significantly, the trial record does not indicate the existence of any other tire tracks or shoe prints that might have indicated that some unknown, innocent person visited the scene either before or after the attack. Additional record evidence also tends to contradict the notion that the blue condom could be attributable to someone other than Jackson’s accomplice. The trial record indicates that the police recovered no condoms from Jackson’s car, they recovered only one condom and part of a blue foil condom wrapper from the crime scene, and the color and size of the blue condom and the color of the wrapper were the same as that of the condom and wrapper that K.G. had with her that night. K.G. also testified that she thought the condom was the same one that she had with her and that Jackson’s passenger wore during the rape. The police found the condom “at point C in the snow” right beside some blood and part of the blue and gold foil wrapper matching the condom K.G. was carry- 3394 OSBORNE v. DISTRICT ATTORNEY’S OFFICE ing, and it was also very near the spent shell casing from Jackson’s gun, K.G.’s bloody pants, the disturbed berm of snow in which K.G. had been partially buried, and the tire tracks from Jackson’s car, probably on the passenger side where Jackson’s accomplice would have been. Thus, the con- dom was found not merely in the vicinity of the crime scene but in the exact location where K.G. was attacked. Regarding the timing, although the police did not search the crime scene until twenty-four hours after the rape, K.G.’s rescuers reported seeing the condom lying in the snow when they vis- ited the crime scene around noon on the day after the attack. Thus, the time frame in which the condom could have been left there was far narrower than the State suggests. Finally, a crime lab technician testified that when he received the con- dom, which by then had been packaged in a closed plastic cup, the condom was rolled down and there was still a sub- stantial amount of semen inside that had not yet dried. Taken together, these facts are far more consistent with the prosecu- tion’s trial narrative—that Jackson’s passenger used K.G.’s condom during the rape, he removed and discarded it at the scene, and it remained undisturbed in the snow until it was recovered by the police—than any of the State’s newly pro- posed alternative explanations for the condom’s origin. The State also fails to recognize that further DNA testing is alone capable of establishing the supposedly missing link between the condom and K.G.’s rape. The potential probative value of the semen and pubic hair from the blue condom and the pubic hair from K.G.’s sweater must be considered collec- tively, not in isolation as the State has considered the evi- dence. See Kyles, 514 U.S. at 436 (explaining that materiality is defined “in terms of suppressed evidence considered collec- tively, not item by item”); House, 547 U.S. at 538 (“Schlup makes plain that the habeas court must consider all the evi- dence, old and new, incriminating and exculpatory” (internal quotation marks omitted)); see, e.g., id. at 552-53 (“If consid- ered in isolation, a reasonable jury might well disregard it. In combination, however, . . . the evidence . . . likely would rein- OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3395 force other doubts as to House’s guilt.”). As the State itself should expect given the prosecutor’s trial presentation and its continued belief in Osborne’s guilt, further DNA testing could establish a genetic match between the semen and pubic hair on the condom and the pubic hair on K.G.’s sweater, proving that the user of the condom was also in such contact with K.G. as to transfer a pubic hair to her sweater. As the prosecu- tor argued at trial, because the sweater was spread out under- neath K.G. during the rape, the most likely scenario is that the hair was transferred by Jackson’s accomplice at that time. Moreover, further DNA testing might even directly link the blue condom to K.G. herself. Although we have mainly focused on the semen and hair evidence that we know to exist, the trial record reveals that epithelial cells were found on the outside of the condom. Based on this evidence, the prosecu- tion argued at trial that it indicates how the condom was used because epithelial cells come from only the inside of the mouth, rectum or vagina. Further DNA testing might be able to go one step further and genetically match any such trace material from the condom to K.G., conclusively establishing that the condom was used in K.G.’s rape and disproving any of the State’s new hypotheses. New evidence favorable to Osborne could also lead to new lines of investigation and additional new evidence. See People v. Garcia, 22 Cal. Rptr. 2d 545, 551 (Cal. Ct. App. 1993); see also Bagley, 473 U.S. at 683 (“[T]he reviewing court may consider directly any adverse effect that the prosecutor’s fail- ure to respond might have had on the preparation or presenta- tion of the defendant’s case.”). Based on the State’s obstinate denial that Osborne might be innocent even if DNA test results exclude him as a source of the biological evidence used to convict him, the State would seem intent on develop- ing a case to continue to fight Osborne’s claim of innocence. But such an investigation might instead lead in the opposite direction and further solidify Osborne’s case for innocence. As Osborne contends, if the STR DNA test results exclude 3396 OSBORNE v. DISTRICT ATTORNEY’S OFFICE him, those results could then be placed into the state and national DNA databank system, which did not exist when Osborne was tried, and possibly identify the real perpetrator. See State I, 110 P.3d at 992 n.14 (noting that Alaska main- tains a DNA registry). [12] In summary, the State’s proposed hypotheticals for reconciling exculpatory DNA tests with Osborne’s guilt are so inconsistent with and improbable in light of the evidence in the trial record that they cannot negate the materiality of fur- ther DNA testing to possible post-conviction relief. Cf. House, 547 U.S. at 553-54 (holding that, although there was not “conclusive exoneration,” the petitioner satisfied the Sch- lup actual innocence standard). “In light of the obvious excul- patory potential of semen evidence in a sexual assault case,” Thomas, 979 F.2d at 750 n.2, and given the evidentiary record in this sexual assault case and the unique circumstances of this crime, we have no difficulty concluding that DNA tests favorable to Osborne would have extraordinary exculpatory potential and would be material to proving his actual inno- cence. At the very least, exculpatory DNA tests would entitle Osborne to an evidentiary hearing on his actual innocence claim in order to more fully develop the factual record and reconcile any conflicting evidence. See Cooper v. Woodford, 358 F.3d 1117, 1123-24 (9th Cir. 2004) (en banc); cf. House, 547 U.S. at 537 (addressing the merits of a Schlup gateway claim “based on a fully developed record”). C Thus far we have limited our analysis to the evidence in the trial record and the evidence that might be discovered if the State were forced to allow it to come to light. But the State also points to Osborne’s written confession in his application for parole and his oral confession at his subsequent parole hearing as foreclosing his right to obtain post-conviction access. OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3397 The confessions are certainly relevant to our inquiry. Because Osborne’s ultimate claim for post-conviction relief will be actual innocence rather than mere trial error, all new evidence may be considered in assessing the potential materi- ality of further DNA testing. See House, 547 U.S. at 538 (“all the evidence, old and new, incriminating and exculpatory, without regard to . . . admissibility . . . at trial” (internal quo- tation marks omitted)). No doubt, that includes Osborne’s written and oral confessions to the state parole board. See State II, 163 P.3d at 978-79. [13] We disagree, however, that the confessions foreclose Osborne’s right to obtain post-conviction access to evidence. The same rule that allows us to consider the probative value of the confessions requires that we do so in light of exculpa- tory DNA tests and all the rest of the new and old evidence in this case. Thus, the question before us is not how much weight we should afford Osborne’s confessions standing alone, but how they might be squared with exculpatory DNA tests and the remainder of the evidentiary record. See Gods- chalk v. Montgomery County Dist. Attorney’s Office, 177 F. Supp. 2d 366, 370 (E.D. Pa. 2001) (“While plaintiff’s detailed confessions to the rapes are powerful inculpatory evidence, so to any DNA testing that would exclude plaintiff as the source of the genetic material taken from the victims would be pow- erful exculpatory evidence.”). As we have already discussed, further DNA testing will be highly probative of Osborne’s guilt or innocence given the facts as we know them. We can therefore expect to see one of two possible scenarios unfold: Either the confessions will be proven accurate by test results proving Osborne was in fact the passenger-rapist and his case will proceed no further, or the test results will exclude him as the source of the biological material, in which case serious questions will be raised about the validity of his confessions and whether, as Osborne now claims, he was motivated to confess falsely as the most expeditious means available to obtain release from prison. Cf. Baylor v. Estelle, 94 F.3d 1321, 1323-25 (9th Cir. 1996) (holding that despite the defen- 3398 OSBORNE v. DISTRICT ATTORNEY’S OFFICE dant’s confession, trial counsel’s ineffective assistance in fail- ing to follow up on potentially exculpatory semen evidence in a sexual assault case was prejudicial because evidence exclud- ing the defendant as the semen donor “would necessarily have raised reasonable doubt about the validity of his confession”). [14] Accordingly, we decline to hold that Osborne’s con- fession during parole proceedings necessarily trumps the materiality of physical evidence or the right to obtain post- conviction access to evidence. Such a rule would ignore the emerging reality of wrongful convictions based on false con- fessions and the capability of DNA testing to reveal the objec- tive truth and exonerate the innocent. D The State finally contends that the district court erred in finding that further DNA testing “can be easily performed without cost or prejudice to the [State].” Osborne, 445 F. Supp. 2d at 1081. In the State’s view, prejudice is inherent in the granting of post-conviction access to evidence because it erodes the important value of finality in the criminal justice system. We disagree. Although finality is undoubtedly an important consider- ation, it is not such an immovable force as to override the due process interests presently at stake. If Osborne already had in hand the exculpatory evidence he seeks and filed a habeas petition stating a valid claim for relief, there would be no question that his petition must be heard despite finality con- siderations. “The federal writ of habeas corpus overrides all [such] considerations, essential as they are to the rule of law, when a petitioner raises a meritorious constitutional claim in a proper manner in a habeas petition.” McCleskey v. Zant, 499 U.S. 467, 492-93 (1991). Even a procedural default would not necessarily foreclose Osborne’s claim given the availability of a Schlup gateway claim of actual innocence. See, e.g., Thomas, 979 F.2d at 749. Though no doubt eroding finality, OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3399 such an exception “serves as ‘an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,’ guaranteeing that the ends of justice will be served in full.” McCleskey, 499 U.S. at 495 (quoting Stone v. Powell, 428 U.S. 465, 491-92 n.31 (1976)). The State’s conception of finality would reverse these pri- orities. The evidence in question can be produced easily and without cost to the State and, if favorable to Osborne, would be strong evidence in support of post-conviction relief. None- theless, the State seeks to foreclose such relief by its simple refusal to open the evidence locker. We rejected a similar tac- tic in Thomas, 979 F.2d at 749-50, and we reject it again here. The State supports its position with the argument that the circumstantial and eyewitness evidence in this case is also strong evidence of Osborne’s guilt, and thus granting access is not likely to “further the truth seeking function of our crim- inal justice system.” As recent history has shown, however, DNA evidence has the capability of refuting otherwise irrefut- able inculpatory evidence, and as we have already established this case is no exception. If the inculpatory evidence has been correctly interpreted, further DNA testing will confirm that Osborne is guilty as charged and convicted. But it remains a very real possibility that further DNA testing will be exculpatory and may even lead to Osborne’s exoneration. In the former case, the State will have lost nothing; indeed, it will gain even more defini- tive proof of Osborne’s guilt and will be relieved of the bur- den of further post-conviction litigation. In the latter case, however, Osborne will obviously gain a great deal, as will the State, whose paramount interests are in seeking justice, not obtaining convictions at all costs, and which will then have strong evidence for use in catching and punishing the real per- petrator. Importantly, the State is prejudiced in neither case, and the truth-seeking function of the criminal justice system is furthered in either case. 3400 OSBORNE v. DISTRICT ATTORNEY’S OFFICE V [15] In Thomas, we granted a prisoner’s request for post- conviction DNA testing to establish a gateway claim of actual innocence “[i]n light of the obvious exculpatory potential of semen evidence in a sexual assault case.” 979 F.2d at 750 n.2. This sexual assault case is no exception. We therefore agree with the district court and hold that Osborne’s right to due process of law prohibits the State from denying him reason- able access to biological evidence for the purpose of further DNA testing, where that biological evidence was used to secure his conviction, the DNA testing is to be conducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then avail- able, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or prejudice to the State, and the evidence is material to available forms of post- conviction relief.4 In so holding, however, we do not purport to set the stan- dards by which all future cases must be judged. We are pre- sented with a certain set of circumstances presenting a merito- rious case for disclosure, and our analysis and holding are addressed to those circumstances only. Despite the manner in which the parties have presented the issues, such questions as whether the scope of the right of post-conviction access should be broader or flexible to accommodate different cir- cumstances, whether the materiality standard for post- conviction access-to-evidence claims should be less stringent or defined in a different manner, and whether prisoners with 4 Given our holding, we need not reach Osborne’s alternative arguments that the State’s denial of access to potentially exculpatory DNA evidence is effectively a denial of meaningful access to courts in violation of the First and Fourteenth Amendments, see Christopher v. Harbury, 536 U.S. 403, 412-22 (2002), or that it violates his due process right to effectively pursue parole and executive clemency, see Harvey II, 285 F.3d at 320 (Luttig, J., respecting the denial of rehearing en banc). OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3401 a less compelling case might also be entitled to post- conviction access, all are questions that we need not answer and do not purport to answer in deciding this case. We leave them for another day. AFFIRMED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2960979/	Order entered September 11, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00359-CV LEE PURSER, Appellant V. BRENT L. CORALLI, JET TEXT, LLC, AND CORALLI, INC., Appellees On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-05082-2013 ORDER We GRANT the August 31, 2015 unopposed motion to withdraw as counsel filed by Patrick W. Powers, Peyton J. Healey, and the law firm of Powers Taylor, LLP. We DIRECT the Clerk of the Court to remove Mr. Powers, Mr. Healey, and the law firm of Powers Taylor as counsel for appellant. All future communications to appellant regarding this appeal shall be directed to him as follows: Lee Purser 350 New York Ave. New Braunfels, Texas 78130 (210) 259-6737. On the Court’s own motion, we grant appellant additional time to file his brief and ORDER the brief be filed no later than October 12, 2015. /s/ CRAIG STODDART JUSTICE	01-03-2023	09-18-2015
https://www.courtlistener.com/api/rest/v3/opinions/2960985/	Order entered September 11, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00475-CR No. 05-15-00476-CR EUGENE ANTHONY LYNCH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F13-51985-Q, F14-00063-Q ORDER The Court DENIES appellant’s second motion to extend time to file his brief. We ORDER the trial court to conduct a hearing to determine why appellant’s brief has not been filed. In this regard, the trial court shall make appropriate findings and recommendations and determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See TEX. R. APP. P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel. We ORDER the trial court to transmit a record of the proceedings, which shall include written findings and recommendations, to this Court within THIRTY DAYS of the date of this order. This appeal is ABATED to allow the trial court to comply with the above order. The appeal shall be reinstated thirty days from the date of this order or when the findings are received, whichever is earlier. /s/ ADA BROWN JUSTICE	01-03-2023	09-18-2015
https://www.courtlistener.com/api/rest/v3/opinions/3051599/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAREK MOLSKI; DISABILITY RIGHTS  ENFROCEMENT EDUCATION SERVICES: HELPING YOU HELP OTHERS, a No. 05-56452 California public benefit corporation, D.C. No. Plaintiffs-Appellants, CV-04-00450-ER v.  Central District of California, EVERGREEN DYNASTY CORP., d/b/a Los Angeles MANDARIN TOUCH RESTAURANT; ORDER BRIAN MCINERNEY; KATHY S. MCINERNEY, as joint tenants, Defendants-Appellees.  Filed April 7, 2008 Before: Jerome Farris and Ronald M. Gould, Circuit Judges, and Kevin Thomas Duffy,* Senior Judge. Order; Dissent by Judge Berzon; Dissent by Chief Judge Kozinski ORDER All judges on the panel have voted to deny Plaintiff/ Appellant’s Petition for Panel Rehearing, and so that petition is DENIED. *The Honorable Kevin Thomas Duffy, Senior United States District Judge for the Southern District of New York, sitting by designation. 3643 3644 MOLSKI v. EVERGREEN DYNASTY CORP. The full court has been advised of Defendant/Appellee’s Petition for Rehearing En Banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a majority of the active judges did not vote in favor of en banc consideration. Fed. R. App. P. 35. Accord- ingly, the Petition for Rehearing En Banc is also DENIED. No further petitions for rehearing or rehearing en banc shall be considered. BERZON, Circuit Judge, with whom KOZINSKI, Chief Judge, and PREGERSON, REINHARDT, HAWKINS, Mc- KEOWN, WARDLAW, W. FLETCHER, and PAEZ, Circuit Judges, join, dissenting from the denial of rehearing en banc: Pre-filing orders infringe the fundamental right to access the courts. They are properly reserved for extreme situations where there is absolutely no possibility that the allegations could support judicial relief and filing the suit is a burden on both the court and the opposing party — a costly exercise in futility. Under those circumstances, less draconian sanctions will not suffice. Because, by any measure, this is not such a case, I respectfully dissent from the denial of rehearing en banc. I. The First Amendment right to “petition the Government for a redress of grievances” — which includes the filing of law- suits — is “one of ‘the most precious of the liberties safe- guarded by the Bill of Rights.’ ” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine Work- ers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967)). Conse- quently, a determination that a litigant has repeatedly filed frivolous and harassing lawsuits itself implicates his First Amendment interest in access to the courts. Indeed, where an individual’s use of the courts is declared abusive or baseless, MOLSKI v. EVERGREEN DYNASTY CORP. 3645 “the threat of reputational harm[,] . . . different and additional to any burden posed by other penalties,” is alone sufficient to trigger First Amendment concerns. See id. at 530. Because the right to access the courts implicates due pro- cess and First Amendment rights, courts have been exceed- ingly reluctant to restrict such access. We have noted that because a pre-filing order “restricts an individual’s access to the court system, it is an extraordinary remedy that should be narrowly tailored and rarely used.” Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). This is so even though litigants and lawyers covered by a pre-filing order are not entirely enjoined from filing suits covered by the order, but must obtain the court’s approval first. This pre-clearance require- ment is in itself a serious imposition on the right to access the courts: “Among all other citizens, he is to be restricted in his right of access to the courts. As far as he is concerned, his future filings run the risk of delay and even possible rejection before he can call upon defendants to respond to those filings. . . . We cannot predict what harm might come to him as a result, and he should not be forced to predict it either. What he does know is that a Sword of Damocles hangs over his hopes for federal access for the foreseeable future.” Id. Because it interferes with the basic right of court access, “[a]n injunction cannot issue merely upon a showing of liti- giousness.” Id. Rather, “[t]he plaintiff’s claims must not only be numerous, but also be patently without merit.” Id. (empha- sis added). Other circuits have similarly emphasized the extreme caution to be used in imposing such orders. See, e.g., In re Powell, 851 F.2d 427, 434 (D.C. Cir. 1988) (“[M]ere litigiousness alone does not support the issuance of an injunc- tion. Both the number and content of the filings bear on a determination of frivolousness or harassment.” (citation and footnote omitted)); In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982) (“Oliver’s litigiousness alone would not support an injunction restricting his filing activities. . . . [L]egitimate 3646 MOLSKI v. EVERGREEN DYNASTY CORP. claims should receive a full and fair hearing no matter how litigious the plaintiff may be.”). The insistence that potentially meritorious suits, however numerous and similar, cannot be the basis for a pre-filing order has echoes in analogous areas of law that similarly reflect the First Amendment protection accorded court access. Under California law, for example, the California Supreme Court, emphasizing the importance of assuring access to the courts, has repeatedly held that improper motive alone is not sufficient basis for establishing the tort of abuse of process. See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986) (“[T]he mere filing or maintenance of a lawsuit — even for an improper purpose — is not a proper basis for an abuse of process action.”). The United States Supreme Court has established a similar test in determining when litigation can be enjoined or declared unlawful: “[O]ur holdings [in prior cases] limited regulation to suits that were both objectively baseless and subjectively motivated by an unlawful purpose.” BE & K Constr., 536 U.S. at 531 (emphasis in original) (discussing the sanctioning of litigation under the antitrust laws or as an unfair labor practice under the National Labor Relations Act). II. The panel opinion pays lip service to the long-standing and constitutionally-based principle that “[a]n injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must not only be numerous, but also be patently with- out merit.” 500 F.3d 1047, 1059 (9th Cir. 2007) (quoting Moy, 906 F.2d at 470). Yet, neither the panel nor the district court contend that all or most of Molski’s hundreds of ADA claims actually lack merit. In fact, both expressly concede that they are probably meritorious. Id. at 1062 (“We acknowledge that Molski’s numerous suits were probably meritorious in part — many of the establishments he sued were likely not in compliance with the ADA.”); Molski v. Mandarin Touch MOLSKI v. EVERGREEN DYNASTY CORP. 3647 Rest., 347 F. Supp. 2d 860, 865 (C.D. Cal. 2004) (“It is possi- ble, even likely, that many of the businesses sued [by Molski] were not in full compliance with the ADA.”). Instead, the panel relies on the district court’s finding that Molski’s “claims of injury . . . were patently without merit,” and con- cludes this is enough to make the litigation frivolous. 500 F.3d at 1059 (emphasis added). As an initial matter, the district court’s conclusion that Molski fabricated many allegations of injury, which was affirmed by the panel, simply cannot meet our standard for factual frivolousness. To be frivolous, factual allegations must be “wholly fanciful” or “conflicting with facts of which the district court may take judicial notice.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) (internal quotation marks omitted) (quoting Crisafi v. Holland, 655 F.2d 1305, 1307-08 (D.C. Cir. 1981) (per curiam)); see also In re Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007) (importing Franklin’s factual frivolousness standard to reviewing appeals submitted pursu- ant to pre-filing orders). The district court and the panel relied solely upon the simi- larity and multitude of Molski’s injuries: Numerous com- plaints alleged that he incurred physical injuries while attempting to overcome non-ADA-compliant public accom- modations. The panel asserts that “it is very unlikely that Molski suffered the same injuries, often multiple times in one day, performing the same activities — transferring himself from his wheelchair to the toilet or negotiating accessibility obstacles. Common sense dictates that Molski would have figured out some way to avoid repetitive injury-causing activ- ity; even a young child who touches a hot stove quickly learns to avoid pain by not repeating the conduct.” 500 F.3d at 1059. On this reasoning, the panel concludes that the district court’s finding that Molski “plainly lied” in his injury allegations was not clearly erroneous. But the similarity of these injuries alone does not lead to the conclusion that the allegations are patently false. First, as 3648 MOLSKI v. EVERGREEN DYNASTY CORP. the panel concedes, “[b]ecause many of the violations Molski challenged were similar, it would have been reasonable for Molski’s complaints to contain similar allegations of barriers to entry, inadequate signage, and so on.” Id. In addition, Mol- ski provided a reasonable explanation for the similarity of his injuries and the injurious nature of seemingly small acts. As another district court explained, in rejecting the district court’s analysis here and declining to find Molski a vexatious litigant: Molski explains that, as a paraplegic, he relies entirely on his upper extremities and the strain of the improper transfers to the toilet are real injuries to him. Even though the pain might be short-lived, the cumulative effect of the multiple injuries is to wear down his upper extremities, joints, and shoulders. Molski also frequently injures his buttocks when forced to transfer to a toilet that is not configured in compliance with the ADA. Molski explains that, because he sits on his buttocks all day, bruises on his buttocks do not heal quickly or easily. . . . Molski supports the veracity of his claims of injury with a declaration from his treating physician, Dr. Thomas Lyle Hedge. . . . Dr. Hedge declares that Molksi [sic] has suffered “repetitive, continuous and cumulative” trauma/physical injury to the upper extremities from confronting architectural barriers such as unpaved pathways and toilets without proper grab bars or at an improper height. Molski v. Rapazzini Winery, 400 F. Supp. 2d 1208, 1210-11 (N.D. Cal. 2005) (record citations omitted). Given this explana- tion,1 the factual allegations of injury here were simply not 1 Molski and Dr. Hedge both submitted declarations in the instant case providing the same explanations accepted in Rapazinni Winery. MOLSKI v. EVERGREEN DYNASTY CORP. 3649 “wholly fanciful,” Franklin, 745 F.2d at 1228, even if the incremental nature of the alleged injury was not spelled out. But even if Molski’s allegations of injury were meritless, the pre-filing order would not be justified: The allegations of injury are entirely irrelevant to Molski’s ADA causes of action; past actual injury is not necessary to bring a claim under Title III of the ADA. Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Allegations of injury are not necessary either to sue for statutory damages under Califor- nia’s Unruh Act. Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000). The panel appears to so recognize, but suggests that there are some scenarios under which Mol- ski might want to pursue actual rather than statutory damages under state law, so the allegations of physical injury “are not entirely irrelevant.” 500 F.3d at 1060 n.6. That may be. But the tangential connection of the physical injury allegation to the potential for success in the cases certainly makes it diffi- cult to characterize the complaints as a whole as frivolous in any ordinary sense of that term. The panel’s other complaints similarly fail to justify a pre- filing order. The panel complains that Molski sought daily statutory damages under California law, yet recognizes that these claims “might have been legally justified” because of a split among district courts on the issue. Id. at 1060 & n.5. The panel also relies upon the fact that Molski often waited a year before filing suit, which greatly increased the statutory dam- ages claim. But this conduct is permitted under the statute; if there is a problem created by the statutory scheme, the appro- priate fix is legislative, not judicial. In sum: The panel justifies its ruling by relying on assertedly false claims of injury that would be relevant only under California law and on permissible litigation strategies that increase Molski’s damages claim under California law. Not only do these reasons entirely fail to justify the extreme sanction of a pre-filing order, they are also exclusively con- 3650 MOLSKI v. EVERGREEN DYNASTY CORP. cerned with Molski’s claims under state law. Yet the pre- filing order enjoins Molski from filing only federal ADA claims. “If we are to permit pre-filing restrictive orders, these orders must be narrowly tailored to closely fit the specific vice encountered.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). At the very least, the pre-filing order should restrict Molski’s ability to file access claims only under California law. What we have here, in other words, is not a “close[ ] fit” but a grotesquely oversized pre-filing order, going far beyond the only “vice[s] encountered” in the complaints, none of which have anything at all to do with the allegations of ADA violations. III. I recognize that some of the tactics used by Molski and the Frankovich Group are cause for concern. But there are ample avenues for addressing any concerns raised by this case — avenues that do not involve one judge, acting alone, imposing a pre-filing order that covers an entire district.2 Let me emphasize the impact of the district court’s deci- sion: One judge has determined that Molski and the Frankovich Group are forbidden to file ADA complaints with- out prior approval in the entire Central District. That judge has not in any way specified what standards will be used in deciding which cases may be filed and which may not. Other judges in that district may disagree with the imposition of the pre-filing order — in fact, a majority may. Yet, they have no say at all in the matter. The likelihood of internal disagree- ment is highlighted by the fact that a judge in the Northern District has determined, on a similar record, that Molski should not be subjected to a pre-filing order. Molski v. Rapaz- zini Winery, 400 F. Supp. 2d at 1209-12. So Molski can now 2 Perhaps because of the existence of so many alternative avenues for sanctioning counsel, pre-filing orders have been overwhelmingly, if not exclusively, issued against pro se parties. MOLSKI v. EVERGREEN DYNASTY CORP. 3651 bring ADA suits in the Northern District seeking to assure access in places of public accommodation, but cannot do so in the Central District without subjecting himself to pre- screening by a single judge. There are alternative mechanisms for addressing the per- ception that a litigant or lawyer is engaged in widespread liti- gation abuse — mechanisms that do not allow one judge, acting alone, to bar the courthouse door in perpetuity. The Central District, like most districts, has detailed procedures to investigate and sanction attorney misconduct. See C.D. CAL. LOCAL R. 83-3. This process permits the involvement of mul- tiple judges and members of the bar, rather than the one-judge disciplinary committee presented here. Or, if the conduct of ADA litigation concerns the entire Central District judiciary, the court as a whole can issue a general order setting forth particular guidelines for ADA access cases, as the Northern District has. See N.D. CAL. GEN. ORDER 56. Moreover, Rule 11 is designed to deal on a case-by-case basis with the precise abuse found here: false factual allega- tions. See FED. R. CIV. P. 11(b)(3), (c)(1) (requiring an attor- ney or unrepresented party to certify that “the factual contentions [contained in a pleading or motion] have evidenti- ary support” and permitting sanctions on “any attorney, law firm, or party that violated the rule or is responsible for the violation”). As far as I can tell, Rule 11 sanctions have never been imposed on either Molski or the Frankovich Group for their ADA litigation. Surely a lesser sanction in an individual case should first be attempted to cure any offending conduct before a broad pre-filing order covering all future cases is imposed. See Lysiak v. CIR, 816 F.2d 311, 312 (7th Cir. 1987) (imposing pre-filing order where “the pattern of baseless liti- gation generated by Lysiak, even after prior sanction, demon- strates that it would be fruitless simply to impose an additional monetary penalty”). 3652 MOLSKI v. EVERGREEN DYNASTY CORP. IV. At bottom, the panel may be uncomfortable with ADA liti- gation that it suspects is being brought to induce settlement.3 This concern with serial access litigation is shared by many, rightly or wrongly. But the phenomenon is a creature of our federal and state statutes and cannot justify the issuing of pre- filing orders that enjoin meritorious lawsuits. Moreover, while self-interest surely drives serial access litigation in part, the reason there can be so many lawsuits about access to public accommodations is that there are so many violations of the laws that seek to assure access, and so many disabled people are thwarted from participating equally in the activities of everyday life. I fear that the panel’s opinion may be widely used to restrict critical private enforcement of civil rights laws by other litigants and lawyers. This case should have been heard en banc to prevent that result. KOZINSKI, Chief Judge, with whom Judges REINHARDT, W. FLETCHER and PAEZ join, dissenting from the order denying the petition for rehearing en banc: I agree with Judge Berzon that neither the district court nor our panel had an adequate basis for finding that Molski “plainly lied” about his injuries, or that his “claims of injury . . . were patently without merit.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 2007); see Mol- ski v. Mandarin Touch Restaurant, 347 F. Supp. 2d 860, 867 (C.D. Cal. 2004). But I do so on an additional ground: The district court had no power to make such findings, nor a 3 It is not clear why the settlements are so troubling. Judging by the doz- ens of settlement agreements in the record, the vast majority of these set- tlements include provisions for remedying barriers to access — precisely the goal sought by the ADA — as well as small amounts of monetary relief and payment of attorney’s fees. MOLSKI v. EVERGREEN DYNASTY CORP. 3653 record to base them on, because it never held an evidentiary hearing. Oh, sure, the docket indicates (somewhat misleadingly) that a “hearing” was held on the vexatious litigant motion, but it plainly was not an evidentiary hearing. What happened instead is this: The judge spent the first half of the hearing berating Molski and his lawyers, in pretty much the same terms as his subsequent order—which suggests that his views were cast in cement by the time of the “hearing.” Compare Excerpts of Record (ER) 1094 (“After examining plaintiff’s extensive collection of lawsuits . . . .”), and ER 1097 (“The Court simply does not believe that Molski suffered 13 identi- cal injuries generally to the same part of his body, in the course of performing the same activity, over a five-day peri- od.”), with Mandarin Touch Restaurant, 347 F. Supp. 2d at 864 (“After examining Plaintiff’s extensive collection of law- suits . . . .”), and id. at 865 (“The Court simply does not believe that Molski suffered 13 nearly identical injuries, gen- erally to the same part of his body, in the course of perform- ing the same activity, over a five-day period.”). After the judge was done, Molski’s counsel was allowed to address the court, ER 1102-06, but no witnesses testified, no evidence was presented, there was no cross-examination and there were no evidentiary rulings—in short, there was no trial. Molski, whose veracity the district court impugned, was not even present. How then did the judge manage to make factual findings, and how does this panel affirm those findings on appeal? It’s bad enough that the panel relies on its own armchair wisdom about plaintiff’s supposed ability to avoid repetitive injuries, Evergreen Dynasty, 500 F.3d at 1059, rather than looking to whether the record supports the findings of the district court. Worse still is that there is no record the panel could consult if it were of a mind to do so. There is no statement at all from Molski himself, as the complaint is not verified. The panel does not find the absence of an evidentiary record remarkable, 3654 MOLSKI v. EVERGREEN DYNASTY CORP. perhaps laboring under the mistaken impression that there must be an evidentiary record somewhere under all that paper. Still and all, those of us unfamiliar with the alchemy of mak- ing findings based on no evidence—and affirming them based on no record—would dearly love to know why the absence of an evidentiary record is not an insuperable obstacle to affirm- ing a district court’s factual finding. The bottom line is this: The district court made, and the panel affirms, a finding that Molski is a liar and a bit of a thief, without any evidence at all. The district court and the panel also manage to find that plaintiff just couldn’t have suf- fered the injuries he alleges, without the benefit of an expert or any other proof. But does the district court have authority to make findings that severely curtail access to the federal court, not only for plaintiff but also for his lawyers and their other clients (present and future), without swearing in a single witness? Without giving notice and an opportunity to present evidence? Without cross-examination? Without any of the other rudiments of due process? Isn’t Molski at least entitled to get on the stand, look the judge in the eye and tell his story? Fortunately, there’s a cure. The lawyers and judges of the Central District don’t have to put up with this kind of tyranny by one judge acting entirely on his own. A member of a multi-judge court should not be able to single-handedly cut off one party or law firm’s access to all the other judges of the court. The Central District judges can and should adopt a local rule or general order that any judge wishing to bar a liti- gant or a law firm from accessing the court must obtain the concurrence of a committee of his colleagues. Enforcement of the order, too, should not be entrusted to the judge who entered it, as he may take an unduly broad view as to its scope. Far wiser, and fairer, to have other judges, drawn at random, enforce the order in future cases. By adopting such measures, the court would ensure that draconian orders such as this one will not be the handiwork MOLSKI v. EVERGREEN DYNASTY CORP. 3655 of a single judge, subject only to cursory supervision by the court of appeals, but a shared responsibility of the court’s judges, as such orders should be. And the new local rule or general order should be applied retroactively to Molski’s case. Like Judge Berzon, I’m very sorry that such an order was ever entered, and on such a non-existent record. I’m even sor- rier that our panel has seen fit to affirm it, and that our full court has chosen to look the other way. But ultimately, it’s up to the judges of the Central District to ensure that due process is upheld and that an injustice is avoided. I have every confi- dence that they will be equal to the task. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2008 Thomson/West.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2792340/	NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-11717 COMMONWEALTH vs. ROBERT JONES. Middlesex. December 1, 2014. - April 9, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Indecent Assault and Battery. Obscenity, Dissemination of matter harmful to minor. Statute, Validity. Constitutional Law, Freedom of speech and press. Practice, Criminal, Argument by prosecutor. Indictments found and returned in the Superior Court Department on April 26, 2012. The cases were tried before Maureen B. Hogan, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Anne M. Paruti, Assistant District Attorney (Jessica L. Langsam, Assistant District Attorney, with her) for the Commonwealth. GANTS, C.J. A Superior Court jury convicted the defendant on two indictments charging indecent assault and battery on a 2 child under fourteen, in violation of G. L. c. 265, § 13B, and one indictment charging dissemination of matter harmful to minors, in violation of G. L. c. 272, § 28.1 The defendant presents two claims on appeal. First, he contends that, during the time period alleged in the indictment, § 28 was facially overbroad because it did not explicitly require the Commonwealth to prove that the defendant knew that the person receiving the harmful matter was a minor. Second, he argues that the prosecutor's closing argument created a substantial risk of a miscarriage of justice by suggesting that the defendant would have committed further sexual offenses against one of the child victims had the child not moved away. We conclude that, during the relevant time period, § 28 was not unconstitutionally overbroad because we interpret the statute to have implicitly required knowledge that the recipient was a minor as an element of the crime. We also conclude that the prosecutor's suggestion that the defendant would have committed further sexual offenses against the victim was improper but, in the context of the entire closing argument, did not create a substantial risk of a miscarriage of justice. We therefore affirm the convictions. Background. The two victims were the defendant's nephews, sons of two different sisters of the defendant. In 2006, one 1 An additional charge of indecent assault and battery on a child under fourteen was nol prossed before trial. 3 victim, C.J., who was approximately eleven years old, moved with his mother and younger brother to Woburn, which is also where the defendant was living at C.J.'s grandmother's house. A few days during each school week, and nearly every day during the summer, C.J. went to his grandmother's house where he and the defendant spent time together playing video games, using a computer, and playing sports. Because C.J. looked up to the defendant as a father figure, he did not feel uncomfortable when the defendant began asking him about his physical development through puberty. The defendant would routinely ask C.J. about any physical changes to his body and at one point asked if he had started to "play" with his genitals. In the summer of 2007, when C.J. was approximately twelve years old, the defendant began asking to see his genitals. With no one else in the room, the defendant and C.J. would often be sitting on the bed in the defendant's bedroom, playing video games or watching television, and the defendant would ask to see if any pubescent changes had occurred. C.J. would then stand up or kneel on the bed and pull down his pants and underwear; the defendant would look and touch with his hand the pubic region immediately above C.J.'s penis, but would not touch the penis itself. The defendant did not show his genitals to C.J. or ask C.J. to perform any sexual act with the defendant. 4 This pattern of asking to see C.J's genitals and touching his pubic region occurred at least twice a week, and continued for about one year before C.J. began to feel uncomfortable. C.J. first viewed these interactions as appropriate for a father figure to have with a son, but he felt more uncomfortable after he recognized that the defendant was asking to see his genitals nearly every time he visited.2 These interactions between the defendant and the victim stopped after C.J's family moved to Tewksbury in the summer of 2008, and shortly thereafter moved to New Hampshire. The second victim, J.B., also lived in Woburn, with his mother, stepfather, and sister. In 2007, J.B. was approximately nine years old and in fourth grade, and often went after school to his grandmother's house, where the defendant lived. The defendant and J.B. had a close relationship; they played sports, attended sporting events, and went ice-skating together. For three years, when J.B. was in the fourth, fifth, and sixth grades, the defendant went to his house to watch almost every Boston Bruins hockey game. 2 The defendant also routinely kissed C.J. on the lips when they parted. C.J. testified that kissing on the lips was a common greeting or farewell gesture in his family, but he started to feel uncomfortable when the defendant began kissing him multiple times and holding the kiss longer. 5 In the summer before J.B. was starting either fourth or fifth grade, the defendant asked him how puberty was going, but he did not know what puberty was. The defendant did not raise the topic again until the following winter. While the defendant and J.B. were alone watching television, the defendant asked, "How is puberty hitting you?" The defendant said, "Well, let me see then. I'll tell you how puberty is." J.B. then pulled down his pants and boxer shorts. From this point forward, about every other week, the defendant asked to see J.B.'s penis and J.B. showed him. The defendant did not touch J.B.'s penis during these interactions. On one occasion, when J.B. was in fifth grade, sometime between 2007 and 2008, the defendant asked him to look at something on the defendant's computer. J.B. sat on the defendant's lap while the defendant opened a computer program used for downloading music and video recordings. As the defendant scrolled through a list of pornographic video recordings, J.B. saw images of nude adult men and women displaying their genitals and engaging in sexual intercourse. The defendant then played a specific video recording, which showed a group of nude women using icicles as sexual toys. The defendant asked J.B. if he had ever searched for materials similar to what was shown in the video recording, and J.B. said 6 "no." As they watched the video recording, the defendant unbuttoned J.B.'s pants and pulled down his pants and boxer shorts. The defendant grabbed J.B.'s penis and stroked it with two of his fingers. J.B. did not recall any other instance where the defendant touched his genitals or showed him pornography. Discussion. 1. Dissemination of matter harmful to minors. At the time of the charged conduct, G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2, provided, "Whoever disseminates to a minor any matter harmful to minors, as defined in [G. L. c. 272, § 31], knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors" shall be guilty of a crime.3 Since then, the scope of the statute has twice been amended. In 2010, the Legislature amended § 31 to add to the definition of "matter" "any electronic communication including, but not limited to, electronic mail, instant messages, text messages, or any other communication created by means of use of the Internet 3 "Harmful to minors" is defined as "matter" that is "obscene, or if taken as a whole, . . . (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors." G. L. c. 272, § 31. "Minor" is defined as "a person under eighteen years of age." Id. 7 or wireless network." St. 2010, c. 74 § 2.4 In 2011, the Legislature amended § 28 explicitly to require that the dissemination be purposeful and "to a person [the defendant] knows or believes to be a minor." St. 2011, c. 9, § 19.5,6 4 This amendment was enacted after we held that the earlier definition of "matter" in § 31 did not encompass electronically transmitted texts or online conversations. See Commonwealth v. Zubiel, 456 Mass. 27, 33 (2010). 5 The amended G. L. c. 272, § 28, now reads, in relevant part, "Whoever purposefully disseminates to a person he knows or believes to be a minor any matter harmful to minors . . . knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to a person he knows or believes to be a minor, shall be punished . . . . A person who disseminates an electronic communication . . . shall not be found to have violated this section unless he specifically intends to direct the communication to a person he knows or believes to be a minor" (emphasis added). St. 2011, c. 9, § 19. 6 The 2011 amendment of § 28 followed the issuance of a preliminary injunction by a judge of the United States District Court for the District of Massachusetts, who declared that the 2010 amendments to § 31, as incorporated within § 28, violated the First Amendment to the United States Constitution. American Booksellers Found. for Free Expression vs. Coakley, U.S. Dist Ct., No. 10-11165-RWZ, at 9 (D. Mass. Oct. 26, 2010). The preliminary injunction arose from a civil suit filed by several individuals and organizations that used the Internet to disseminate sex-related information. Id. at 1, 4. The plaintiffs argued that § 28 was unconstitutionally overbroad because it did not require that a defendant know that the intended recipient of the harmful matter was a minor. Id. at 4- 5. The plaintiffs reasoned that those who disseminate "sexually frank" information through a generally accessible Web site cannot verify the age of every individual who accesses their Web site; therefore, they cannot prevent minors from viewing information that might be harmful to them but appropriate for adults, without significantly limiting adults from accessing this information. Id. at 4, 5 n.3. The Commonwealth agreed 8 The defendant contends that until § 28 was amended to require, as an element of the offense, that the defendant disseminated the harmful matter to a person "he knows or believes to be a minor," the statute was substantially overbroad in violation of the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. "The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions" (citations omitted). Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). Although the defendant does not contend that he did not know that the victims were minors, he need not do so in order to challenge the constitutionality of the statute, because the overbreadth doctrine "is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others." that, if § 28 did not require that the sender know that the recipient was a minor, the statute would be unconstitutionally overbroad. Id. at 5. The judge noted that she could not construe the statute to require such knowledge as an element of the offense because "in the absence of an explicit state court adjudication . . . revision of a state statute by a federal court would be inappropriate." Id. at 7. 9 Id. See Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, 460 Mass. 647, 676 (2011), cert. denied, 132 S. Ct. 2377 (2012) ("The overbreadth doctrine allows an individual whose speech may be constitutionally regulated to argue that a law is unconstitutional because it infringes on the speech of others"). The premise underlying the defendant's overbreadth claim is that § 28 prior to amendment did not require as an element of the offense that the defendant knew that the recipient of the harmful matter was a minor. If that premise is correct, the statute would be constitutionally suspect because it would chill the non-obscene, sex-related speech of those who cannot reasonably ensure that the matter they disseminate will be seen only by adults. See Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997) (governmental interest "in protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech addressed to adults" [citations omitted]). See also Smith v. California, 361 U.S. 147, 153-154 (1959) (punishing bookseller for possession of obscene books without knowledge of obscene content would cause self-censorship and severely limit public access to constitutionally protected matter, because booksellers are limited in amount of reading material with which they can 10 familiarize themselves and they would grow timid in face of "absolute criminal liability"). In determining whether to construe the statute prior to amendment to require such knowledge, we apply two principles of statutory construction. First, "a statute is to be construed where fairly possible so as to avoid constitutional questions." United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994). See Commonwealth v. Disler, 451 Mass. 216, 228 (2008) (it is our duty to interpret statutes in manner that avoids constitutional difficulties "if reasonable principles of interpretation permit it" [citation omitted]). See also O'Brien v. Borowski, 461 Mass. 415, 422 (2012) ("we have not hesitated to construe statutory language narrowly to avoid constitutional overbreadth"); Demetropolos v. Commonwealth, 342 Mass. 658, 660 (1961) ("where a statute may be construed as either constitutional or unconstitutional, a construction will be adopted which avoids an unconstitutional interpretation"). Second, where First Amendment rights are at issue, we presume "that some form of scienter is to be implied in a criminal statute even if not expressed." X-Citement Video, Inc., 513 U.S. at 69 (construing statute to require knowledge that performer in visual depiction of sexually explicit conduct was minor). See Commonwealth v. Buckley, 354 Mass. 508, 510 11 (1968) ("Statutes, purporting to create criminal offences which may impinge upon the public's access to constitutionally protected matter . . . , have been construed to require knowledge by the accused of the facts giving rise to criminality" [quotation and citation omitted]); Commonwealth v. Corey, 351 Mass. 331, 332-333 (1966). In Corey, 351 Mass. at 334, we applied both of these principles when interpreting an earlier version of § 28 to require scienter.7 The defendant was an employee in a Boston book store who sold a book entitled "Candy" to a seventeen year old girl who asked for the book by name. Id. at 332. The defendant argued that he could not be convicted under § 28 without evidence that he knew of the allegedly obscene content of the book; the Commonwealth conceded that it had offered no such evidence. Id. According to the Commonwealth, the absence of any language in the statute requiring scienter suggested that the Legislature intended to enact a strict liability criminal statute, much like it did when it enacted a strict liability 7 The relevant portions of the earlier version of § 28 read, "Whoever sells . . . to a person under the age of eighteen years a book . . . which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth . . . shall be punished . . . ." Commonwealth v. Corey, 351 Mass. 331, 331 (1966), quoting G. L. c. 272, § 28, as amended through St. 1959, c. 492, § 1. 12 criminal statute prohibiting the sale of liquor to minors. Id. at 333. We acknowledged that the Legislature had the authority in enacting criminal statutes to define criminal offenses that had no element of scienter, but also recognized that "a different situation is presented when the legislation is in an area where First Amendment rights are involved." Id. Where First Amendment rights are involved, "[t]he [United States] Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material." Id. at 332-333, quoting Mishkin v. New York, 383 U.S. 502, 511 (1966). Thus, if § 28 had no scienter requirement, "booksellers, unable to familiarize themselves with all the material on their shelves, would tend to restrict sales to minors to the relatively few books of which they had some knowledge of the contents or character. The result would be an impediment to the sale to minors not only of unprotected matter but also of that which is constitutionally protected." Corey, supra at 334. We held that § 28 "must be read as requiring scienter." Id. For similar reasons, we now construe § 28 prior to amendment to require scienter that the recipient was a minor. If scienter as to the recipient's age were not required, online booksellers and other Web site administrators who could not 13 reasonably identify the age of every person who visits their Web sites would be discouraged from disseminating material that is appropriate for adults but harmful to minors. See State v. Weidner, 235 Wis. 2d 306, 322 (Wis. 2000) ("By requiring an [I]nternet user . . . to prove lack of knowledge regarding the age of the person exposed to material deemed harmful to a child, the [Wisconsin statute on dissemination of matter harmful to minors] effectively chills protected [I]nternet communication to adults"). Thus, interpreting the statute to require knowledge that the recipient is a minor is necessary to avoid impinging on public access to constitutionally protected matter. See Corey, 351 Mass. at 334. We interpret § 28 to include an implied element of scienter, not only to preserve the constitutionality of the statute, but also to reflect what we understand to be the legislative intent. First, we note that the statute explicitly requires that the defendant have knowledge that the matter disseminated is harmful to minors. See G. L. c. 272, § 28, as appearing in St. 1982, c. 603, § 2 ("Whoever disseminates to a minor any matter harmful to minors . . . knowing it to be harmful to minors"). Second, we previously construed § 28 to require that the act of dissemination be "purposeful or intentional" rather than inadvertent, even though the statute 14 itself did not explicitly state the level of intent necessary to prove dissemination. Commonwealth v. Belcher, 446 Mass. 693, 696-697 (2006). Finally, because § 28 also made it a crime to possess any matter harmful to minors "with the intent to disseminate the same to minors," the Legislature likely intended that same intent be required to criminalize the dissemination of the same matter. See X-Citement Video, Inc., 513 U.S. at 72 ("the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct"). Where we adopt a limiting construction of a statute to avoid substantial overbreadth, as we have done here by requiring scienter that the recipient is a minor, "the statute, as construed, 'may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants.'" Oakes, 491 U.S. at 584 (opinion of O'Connor, J.), quoting Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 (1965). See Osborne v. Ohio, 495 U.S. 103, 119 (1990) ("Courts routinely construe statutes so as to avoid the statutes' potentially overbroad reach, apply the statute in that case, and leave the statute in place"). Here, where there can be no issue of fair warning, we conclude that § 28 included an implied scienter requirement before the 2011 amendment made that 15 requirement explicit and was therefore not unconstitutionally overbroad.8 8 On appeal, the Commonwealth also argues that the defendant's overbreadth challenge was rendered moot by the 2011 amendment, even though the amendment was not effective during the time period covered by the indictment. The Commonwealth's argument rests on the plurality opinion of Justice O'Connor in Massachusetts v. Oakes, 491 U.S. 576, 582 (1989), joined by three other Justices, which concluded that "overbreadth analysis is inappropriate if the statute being challenged has been amended or repealed." Justice O'Connor reasoned: "Overbreadth is a judicially created doctrine designed to prevent the chilling of protected expression. An overbroad statute is not void ab initio, but rather voidable, subject to invalidation notwithstanding the defendant's unprotected conduct out of solicitude to the First Amendment rights of parties not before the court. Because the special concern that animates the overbreadth doctrine is no longer present after the amendment or repeal of the challenged statute, we need not extend the benefits of the doctrine to a defendant whose conduct is not protected." Id. at 584. Justice Scalia wrote a separate opinion, Part I of which was joined by four other Justices, which stated that a subsequent legislative amendment of a statute does not "eliminate the basis for the overbreadth challenge." Id. at 585-586. Justice Scalia reasoned: "The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost free, as Justice O'Connor's new doctrine would make it -- that is, if no conviction of constitutionally proscribable conduct would be lost, so long as the offending statute was narrowed before the final appeal -- then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place" (emphasis in original). 16 Having construed § 28 prior to amendment to require knowledge that the recipient of the harmful matter was a minor, Id. at 586. It was only because Justice Scalia concluded that the statute prior to amendment was not impermissibly overbroad that Justice O'Connor's opinion had the five votes necessary to announce the judgment of the court to vacate the judgment below and remand for further proceedings. Id. at 585, 588, 590. Several circuit courts of the United States Court of Appeals have agreed that a subsequent amendment of a statute renders moot an overbreadth defense. See, e.g., National Advertising Co. v. Miami, 402 F.3d 1329, 1332 (11th Cir. 2005), cert. denied, 546 U.S. 1170 (2006); Stephenson v. Davenport Community Sch. Dist., 110 F.3d 1303, 1311-1312 (8th Cir. 1997); Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th Cir.), cert. denied, 522 U.S. 860 (1997). Yet, as the defendant notes, part I of Justice Scalia's opinion was the "only proposition to which five Members of the Court [had] subscribed." Oakes, supra at 591 n.1 (Brennan, J., dissenting). The Supreme Court has explained that where "no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .'" Marks v. United States, 430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976). However, the Court has also acknowledged that this test "is more easily stated than applied." Nichols v. United States, 511 U.S. 738, 745 (1994). See United States v. Robison, 521 F.3d 1319, 1323-1324 (11th Cir. 2008) ("narrowest grounds" approach does not make sense where two opinions "simply set forth different criteria" and one opinion does not constitute subset of broader opinion). "Since Marks, several members of the Court have indicated that whenever a decision is fragmented such that no single opinion has the support of five Justices, lower courts should examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced" (emphasis added). United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006), cert. denied, 552 U.S. 948 (2007). Because we construe the statute prior to amendment to be constitutional, we need not determine the appropriate method of interpreting fragmented Supreme Court decisions in order to decide whether, under Oakes, the 2011 amendment of § 28 rendered the defendant's overbreadth challenge moot. 17 we must address whether the defendant's conviction under § 28 can stand where the judge's final instructions to the jury did not inform them of this element. See Osborne, 495 U.S. at 118, citing Shuttlesworth v. Birmingham, 382 U.S. 87, 91-92 (1965) ("where a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written"). Where, as here, the defendant did not object to the judge's jury instructions, we determine whether the absence of such an instruction created a substantial risk of a miscarriage of justice. See Belcher, 446 Mass. at 696. We conclude that there was no such risk in this case, where the defendant was the uncle of the victim, J.B., and knew him very well, and where J.B. was well below eighteen years of age when the defendant showed him the pornographic material. 2. Closing argument. The defendant also contends that the prosecutor's closing argument improperly suggested that the defendant would have touched C.J. in the same manner that he touched J.B. if C.J. had not moved away. The prosecutor stated: "Was [the defendant] able to progress any further than touching [C.J.]'s pubic area? No. Why not? Because [C.J.] left, that's why. Not because he was done learning about sex from his uncle, because he physically moved to another state. You heard eighth grade he left. He was in Tewksbury for a short amount of time and then New Hampshire. At that point they saw each other infrequently, 18 not every day. The access collapsed and his opportunity at that point to take it further vanished." The prosecutor later reemphasized this theory, stating, "Now the point that [the defendant] got to with [J.B.] shows you exactly what his intent was when he started with [C.J.]. Due to circumstances beyond his control, that is a couple of hundred miles maybe or a state border, he was unable to reach that point with [C.J.]." The defendant contends that the prosecutor's argument regarding the sexual crimes that the defendant would have inflicted on C.J. had C.J. not moved was improper because it was speculative and played on the jury's fear that, if they found the defendant not guilty, he would "take it further" and commit more sexual crimes. See Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 569 (2010) (statements that "invited speculation about offenses uncommitted and . . . uncharged" are imprudent). Because the defendant failed to object to the closing argument, we review whether the prosecutor's argument created a substantial risk of a miscarriage of justice. See Commonwealth v. Renderos, 440 Mass. 422, 425 (2003). The prosecutor's remarks were improper in that they suggested that had C.J. not moved away, the defendant might have committed additional sexual offenses against him, which invited the risk that the jury would divert their focus from the 19 evaluation of the evidence regarding the defendant's alleged crimes, and consider instead what the defendant might have done under different circumstances. A prosecutor may make reasonable inferences as to what might have actually happened during the commission of the alleged crimes, but may not argue what might have happened had the victim not moved away. The challenged remarks, however, followed the defendant's closing argument, and must be evaluated in that context. See Renderos, 440 Mass. at 425 (prosecutor's remarks evaluated in context of entire closing argument, judge's instructions of law, and evidence at trial); Commonwealth v. Grandison, 433 Mass. 135, 143 (2001) (prosecutor may fairly respond to defendant's closing argument). In his closing argument, the defendant's trial counsel contended that the defendant was "trying to introduce these young men to this whole idea of sexual development, maturity, puberty and everything that goes along with sex education," albeit in a clumsy manner, and therefore "[n]one of these events were [sic] indecent." The prosecutor countered that the defendant's touching of the victims was not for the purpose of their sex education, but for his own sexual gratification and that the defendant took advantage of the trust he had built with the victims. In this context, a reasonable jury were more likely to have understood the prosecutor's 20 statements that suggested what the defendant might have done, had C.J. not moved away, as commentary on the intent of the defendant's earlier touching of C.J., rather than on the defendant's future sexual dangerousness. The prosecutor's statement, "[T]he point that [the defendant] got to with [J.B.] shows you exactly what his intent was when he started with [C.J.]," directed the jury to consider the defendant's conduct with J.B. in evaluating the defendant's intent in touching C.J. Having considered the prosecutor's improper statements in the context of the closing arguments and recognizing the strength of the evidence against the defendant, we conclude that there was no substantial risk of a miscarriage of justice. Conclusion. Because G. L. c. 272, § 28, was constitutional at the time of the defendant's charged conduct, and the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice, we affirm the defendant's convictions. So ordered.	01-03-2023	04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/2792345/	State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: April 9, 2015 519292 ________________________________ JOHN THOMAS PIACENTE, Respondent, v MICHAEL P. BERNSTEIN et al., MEMORANDUM AND ORDER Defendants, and ERIC S. ROCCARIO et al., Appellants. ________________________________ Calendar Date: February 11, 2015 Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ. __________ Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Andrew L. McNamara of counsel), for Eric S. Roccario and another, appellants. Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for Kathleen Ozsvath and another, appellants. Silberstein, Awad & Miklos, PC, Garden City (Joseph P. Awad of counsel), for respondent. __________ Devine, J. Appeal from an order of the Supreme Court (Teresi, J.), entered November 14, 2013 in Albany County, which granted plaintiff's motion to set aside a verdict in favor of defendants. -2- 519292 Plaintiff commenced this medical malpractice action against, among others, defendants Eric S. Roccario and Prime Care Physicians, PLLC (hereinafter collectively referred to as the Roccario defendants) and defendants Kathleen Ozsvath and The Vasular Group, PLLC (hereinafter collectively referred to as the Ozsvath defendants) and the action proceeded to trial in August 2013.1 Just prior to the close of proof, plaintiff requested that Supreme Court, pursuant to CPLR 4105 and 4106, empanel the first six jurors that had been selected and designate the remaining two jurors as alternate jurors.2 Concluding that a local rule enacted in the Third Judicial District regarding jury selection procedures required that the six deliberating jurors be chosen randomly by the court clerk, the court denied plaintiff's request. The jury, which was comprised of juror Nos. 1, 2, 3, 4, 5 and 8, ultimately rendered a verdict of no cause of action. Plaintiff then moved, pursuant to CPLR 4404 (a), to set aside the verdict in the interest of justice, asserting, among other things, that the violation of his statutory right to designate the first six jurors selected during voir dire denied him a fair trial. Supreme Court granted the motion and set aside the verdict. The Roccario defendants and the Ozsvath defendants now appeal. Initially, we find no evidence in the record indicating 1 Summary judgment was granted to defendants Michael P. Bernstein and Capital Region Cardiology Associates, P.C., and the action was voluntarily discontinued as to defendants Mikhail Kirnus, John Taggert and St. Peter's Hospital. 2 CPLR 4105 states that "[t]he first six persons who appear as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn and constitute the jury to try the issue." CPLR 4106 provides, among other things, that alternate jurors may be "drawn upon the request of a party and consent of the court" and will be selected, seated, sworn and "treated in the same manner as the regular jurors." This section further provides that, at the close of proof, "the court may, in its discretion, retain such alternate juror or jurors to ensure availability if needed." -3- 519292 that plaintiff waived any objection to Supreme Court's reliance on the Third Judicial District jury selection rule.3 "Waiver is an intentional relinquishment of a known right and should not be lightly presumed" (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988] [citation omitted]; see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). Toward the close of proof, plaintiff notified Supreme Court that, during voir dire, the parties had operated under the understanding that the first six jurors to be selected would ultimately serve and that the seventh and eighth jurors would become the alternate jurors. Counsel for the Roccario defendants agreed, stating that plaintiff had explicitly stated prior to jury selection that "he wanted [jurors 7] and [8] to be designated [alternates]" and that the parties had selected jurors accordingly. Counsel for the Ozsvath defendants differed, however, indicating that, although the parties had a conversation about designating jurors, no express agreement to that effect had ever been reached or otherwise communicated to the court. Thereafter, the attorney for the Roccario defendants opined that, because plaintiff had failed to notify the court that he wanted to designate the jurors before the trial commenced, she presumed that he had "abandoned" his request. Plaintiff insisted that, although he had intended to apprise the court at an earlier point in the trial that he sought to designate alternate jurors, the demands of the trial had occupied his attention and, further, that he was unaware that his reliance on the alternate juror designation statute was objectionable. Thereafter, plaintiff renewed his objection to the juror selection procedure before the court directed the clerk to randomly draw the six jurors. On this basis, we cannot agree that plaintiff waived or otherwise failed to preserve his objection to the denial of his right to 3 The local rule provides that "[a]ll prospective jurors (six plus the agreed upon number of alternates) will be selected at random from the panel and seated in the jury box. Unless there is consent of all parties and the presiding judge to designate alternates, the jurors selected will not be designated" (Civil Procedural Rules of the Third Judicial Dist., available at http://www.nycourts.gov/courts/3jd/index.shtml). -4- 519292 invoke the statutory juror designation provision at issue here. After having determined that its application of the Third Judicial District rule contravened plaintiff's substantial right to empanel the first six jurors that had been selected by the parties, pursuant to the "mandatory procedure" set forth in CPLR 4105, Supreme Court exercised its discretion and granted plaintiff's motion to set aside the verdict and order a new trial in the interest of justice. In the absence of evidence that the court abused such discretion, we will not disturb Supreme Court's determination in that regard (see CPLR 4404 [a]; Straub v Yalamanchili, 58 AD3d 1050, 1052 [2009]; Sorel v Iacobucci, 221 AD2d 852, 854 [1995]). McCarthy, J.P., Egan Jr. and Clark, JJ., concur. ORDERED that the order is affirmed, with costs. ENTER: Robert D. Mayberger Clerk of the Court	01-03-2023	04-09-2015
https://www.courtlistener.com/api/rest/v3/opinions/2892601/	NO. 07-04-0024-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MARCH 22, 2005 ______________________________ RAND McPHERSON AND GEORGETTE McPHERSON, APPELLANTS V. CITY OF LAKE RANSOM CANYON, APPELLEE _________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 99-506,390; HONORABLE SAM MEDINA, JUDGE _______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J.1 MEMORANDUM OPINION Rand McPherson and Georgette McPherson challenge the trial court’s judgment declaring them to be in violation of Section 2 of Ordinance 46 of the City of Lake Ransom Canyon, granting injunctive relief sought by the City, and severing their claims for malicious 1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. prosecution and abuse of process to be determined at a subsequent date. By their first five issues, the McPhersons contend the trial court erred in granting summary judgment because (1) the judgment failed to dispose of all claims of the parties in the record, (2) criminal proceedings were pending upon alleged violations of the subject ordinances, (3) sections 54.012 and 54.018 of the Texas Local Government Code are the exclusive civil remedies for enforcement of an ordinance regulating structures, (4) genuine and material issues of fact regarding the City’s claim of violation of municipal ordinances existed, and (5) ordering removal of the caboose is outside the scope of permissible declaratory relief. By their sixth issue, the McPhersons contend the trial court erred in ordering a severance of the remaining claims. We affirm. In 1996, the McPhersons purchased a tract of land in City of Lake Ransom Canyon, Texas and built a residence there. At all times material here, City Ordinance 51, entitled Substandard Building and City Ordinance 46, pertaining to Amendment of Building Code were in effect. According to the affidavit of the City Administrator, McPherson contacted the Architecture Control Committee and stated he wanted to install a 1914 Burlington Northern Caboose on his property to be used for storage and a bunkhouse/playhouse for grandchildren. After consideration, the Committee denied the request. The McPhersons then took their request to the City Council by personal appearance on May 13, 1997. Their request was presented orally along with a written summary. However, because a motion was not presented, no action was taken on the request for a permit. 2 The McPhersons made a second appearance before the City Council on July 1, 1997, and renewed their request for a permit to move the caboose onto their property. Following discussion, upon a motion to deny, the Council voted to deny the request. Then, without obtaining a building permit or other authority, in February 1999, the McPhersons had concrete pads installed on their property. Although a building official for the City observed the installation of the concrete pads, he did not object to the work. Then, without obtaining a variance or building permit, the caboose was placed on a trailer bed and moved to the McPherson’s property. After the wheels were reattached, a crane was used to place the caboose on the concrete pads. Commencing May 18, 1999, the City served the McPhersons with 15 citations charging violations of Ordinance 46, Section 2, and Ordinance 51; however, the judgment does not indicate the status of the citations on the docket of the municipal court. The citations prompted the McPhersons to file the underlying action seeking declaratory judgment and damages. Among other things, they alleged that a building permit was not required for the caboose project because it “represented a small and unimportant work, and the City waived any requirement for a building permit.” They sought a declaratory judgment declaring they had not violated any ordinances and the building official’s failure to “red tag” the project constituted a “no objection” or waiver of Ordinance 46. Also, the McPhersons contended that Ordinances 46 and 51 were unconstitutionally vague and overly broad. In addition, they sought attorney’s fees pursuant to section 36.009 of the Texas Civil Practice and Remedies Code and filed a separate claim for damages for malicious prosecution. In addition to its answer and special exceptions, the City likewise sought declaratory judgment seeking, 3 among other relief, a determination that the McPhersons were in violation of Section 2 of Ordinance 46, mandatory injunctive relief, and attorney’s fees. By its third amended motion for summary judgment, the City sought a declaration that (1) the McPhersons were in violation of Section 2 of Ordinance 46 for (a) constructing a concrete slab adjacent to their residence without obtaining a permit from the City or a variance for non-requirement of a permit, and (b) moving and placing the caboose on the concrete slab without obtaining a permit or variance, (2) there was no basis for the McPhersons’ claim of malicious prosecution, or (3) there was no basis for their claims of abuse of process as a matter of law. Following a hearing on the City’s motion, the trial court concluded: • the McPhersons are in violation of Section 2 of Ordinance 46 in (a) constructing a concrete slab on their property without obtaining a permit from the City or a variance for non-requirement for permit and (b) in moving and placing a railroad caboose on the concrete slab on their property without obtaining a variance for non-requirement thereof; • the McPhersons’ claims for malicious prosecution and abuse of process are separate and distinct and are properly severable; • the McPhersons’ claims that Ordinance 51 is unconstitutional are not relevant or material to the determination of the City’s motion based on Section 2 of Ordinance 46; • injunctive relief sought by the City to require the removal of the caboose and pad was proper under section 37.011 of the Tex. Civ. Prac. & Rem. Code; and rendered judgment accordingly. Before commencing our analysis of the McPhersons’ issues, we set forth the appropriate standards of review. 4 Standard of Review–Summary Judgment In reviewing summary judgment, this Court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985): 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either prove all essential elements of his claim, MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986), or negate at least one essential element of the non-movant's cause of action. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary 5 judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). By their first issue, the McPhersons contend the trial court erred in granting summary judgment when the judgment failed to dispose of all claims of the parties. By their sixth issue, they contend the trial court erred in ordering a severance of the claims of malicious prosecution and abuse of process. Because we disagree as to both contentions and these two issues implicate the severance of claims, we will consider them simultaneously. Pursuant to Rule 41 of the Texas Rules of Civil Procedure, the trial court was authorized to sever claims. Severance of claims is proper if the (1) controversy involves more than one cause of action, (2) severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guaranty Federal v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990). Also, we review the action of the trial court for abuse of discretion. Id. at 658. Moreover, a trial court may grant a severance sua sponte. Rice v. Travelers Express Co., 407 S.W.2d 534, 536 (Tex.Civ.App.--Houston 1966, writ ref’d n.r.e.). Considering the claims for malicious prosecution and abuse of process were independent claims and they were severed along with other issues, we are unable to hold the trial court abused its discretion in severing those matters. Due to the severance of the claims, the judgment challenged here is final and subject to appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191,195 (Tex. 2001). Issues one and six are overruled. 6 By their second issue, the McPhersons contend the trial court erred in granting summary judgment and denying their plea to the jurisdiction on the City’s declaratory judgment action when there were pending criminal proceedings on the subject ordinances. We disagree. Section 54.012 of the Texas Local Government Code provides that a municipality may bring a civil action for the enforcement of an ordinance. As we understand their contention, the McPhersons assert that because the section does not authorize simultaneous criminal prosecutions with civil enforcement proceedings, the City could not maintain its counterclaim for declaratory judgment while the criminal prosecutions remained pending. In connection with its argument, they cite City of Longview v. Head, 33 S.W.3d 47 (Tex.App.--Tyler 2000, no pet.); however, that case is not controlling because the underlying civil proceeding was commenced by the McPhersons after the citations for ordinance violations were issued and served. Moreover, the City filed its answer and counterclaim for declaratory judgment as permitted by the Texas Rules of Civil Procedure. Any error in this regard was therefore invited by the McPhersons and may not be considered on appeal as grounds for reversal. See Bell v. Showa Denko K.K., 899 S.W.2d 749, 760 (Tex.App.--Amarillo 1995, writ denied). Issue two is overruled. By their third issue, the McPhersons contend the trial court erred in granting summary judgment when the exclusive civil remedy for enforcement of an ordinance would have been pursuant to sections 54.012 and 54.018 of the Local Government Code and that a declaratory judgment action and mandatory injunction was improper. We disagree. 7 By their multiple responses to the City’s motion for summary judgment, the McPhersons did not expressly present to the trial court their contention that a mandatory injunction was not available. Accordingly, this issue may not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). See also McConnell, 858 S.W.2d at 341. Issue three is overruled. By their fourth issue, the McPhersons contend the trial court erred in granting summary judgment because material issues of fact regarding their violation of the municipal ordinance existed. By two sub-parts, they allege that issues of fact existed to prevent summary judgment (a) on the City’s claim that the placement of the caboose violated Section 2 of Ordinance 46, and (b) regarding unconstitutionally vague and broad language describing properties subject to waiver of the permit requirement. We disagree. Before we commence our review of the two sub-parts, we first note that because the record does not show that the McPhersons’ objections to the summary judgment evidence presented by the City were presented to the trial court and a ruling obtained thereon, they may not be considered on appeal. See Giese v. NCNB Tex. Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.--Dallas 1994, no writ); McConnell, 858 S.W.2d at 343. Section 2 of Ordinance 46 provides: That Section 301(a) of the Uniform Building Code, 1976 Edition, as amended by the City of Lubbock, Texas, which Ordinance was adopted by the Village of Lake Ransom Canyon as its Building Code in Ordinance No. 17 and Section 2:1 of Ordinance No. 24 be and they are amended to read as follows: Permits required. No person, firm or corporation shall erect, construct, enlarge, alter, repair, move, improve, remove, convert, 8 or demolish any building or structure in the Village, or cause the same to be done, without first obtaining a separate building permit for each building or structure from the building official, except that upon application and authorization of the building official, a building permit may be waived for small and unimportant work. No permit will be required for normal repair and maintenance of any building nor shall a permit be required for erection of a fence or construction of a patio so long as any such structure would not constitute a violation of any other provision of the building code. (Emphasis added). Sub-part (a). Waiver by Building Official. Per Section 2, upon application to the building official, the official may waive the requirement of a permit for small and unimportant work. According to the summary judgment evidence, in order to move the caboose to the McPherson property, it’s size required that it be placed on a trailer by a crane, an oversize permit obtained from the Texas Department of Transportation for movement on the highway and placement on the McPhersons’ property by crane. Unlike the construction of a gazebo, a barbeque pit, or a shed for lawn and garden hand tools without plumbing or electrical wiring, which some may consider to be small and unimportant work, the summary judgment evidence considered in the context of a residential subdivision does not raise a fact question that the construction of the concrete pad and the placement of the caboose or the property was both small and unimportant work. Accordingly, the fact that the building official did not red tag the project is not controlling because the exception for “small and unimportant work” would not have been available. Sub-part (b). Vagueness challenge. Although our decision in sub-part (a) that no fact question is presented that the installation of the caboose constituted “small and unimportant 9 work,” we briefly address the issue. The McPhersons did not apply to the building official for a building permit on any ground. Instead, they appeared before the Architecture Control Committee and twice before the City Council and their requests were denied. The decision of the City Council is not subject to collateral attack as the McPhersons attempt here. See Carr v. Bell Sav. & Loan Ass’n., 786 S.W.2d 761, 764 (Tex.App.--Texarkana 1990, writ denied). Issue four is overruled. By their fifth issue, the McPhersons contend the trial court erred in granting summary judgment ordering removal of the caboose which is outside the scope of permissible declaratory judgment. We disagree. Pleadings frame the issues for determination. Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex. 1982). By its second amended cross-petition for declaratory judgment, among other things, the City expressly sought mandatory injunctive relief to require the McPhersons to remove the caboose. Notwithstanding this pleading, the McPhersons did not challenge the appropriateness of injunctive relief by special exception. Accordingly, any contention that injunctive relief would not lie was waived. See Tex. R. Civ. P. 90; J.K. & Susie L. Wadley Research Inst. v. Beeson, 835 S.W.2d 689, 693 (Tex.App.--Dallas 1992, writ denied). Further, by its third amended motion for summary judgment, the City also sought injunctive relief. However, by their multiple responses to the City’s motion for summary judgment, the McPhersons did not expressly present to the trial court their contention that an order requiring removal by injunction was not appropriate. Accordingly, this issue may not be considered on 10 appeal as grounds for reversal. Tex. R. Civ. P. 166(a)(c); see also McConnell, 858 S.W.2d at 341. Issue five is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice 11	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/3445281/	Affirming. On September 26, 1933, Catherine Moriarty instituted this action against T.M. Howard, Jr., alleging in her petition that on January 1, 1930, T.M. Howard, Sr., and defendant executed and delivered to her a note of that date whereby they each promised and agreed to pay to her, one day after date, $4,134.37 with interest at 5 per cent. per annum; that thereafter and within about a week they delivered the note to her; that it was understood by all parties that defendant and his father, T.M. Howard, Sr., were each unable to pay the note upon its maturity date and therefore it should be payable at such time in the future as plaintiff might desire; that a short time after the execution and delivery of the note, T.M. Howard, Sr., died and T.M. Howard, Jr., was duly appointed and qualified as administrator; that plaintiff has repeatedly made demand upon defendant to pay the note, but that no part of same has been paid. She prayed for judgment against the defendant, individually, for the principal of the note with interest. By answer defendant denied that he executed and delivered the note to plaintiff, but admitted that his father executed and delivered same to her, but alleged that his (defendant's) name was not thereon. In a second paragraph he alleged that some time after his father signed and delivered the note sued on and while his father was very old and sick, plaintiff came to the home of his father and insisted that the note be renewed or something paid on it; that at that time and in the presence of his two sisters, plaintiff was informed that defendant would be the personal representative of his father and that the note would be taken care of out of Page 631 the liquidation of his father's estate; that several days after his father signed the note, and upon plaintiff's insistence and request, he placed his signature on the note as a witness to his father's signature and to indicate that he would look after same after his father's death and would take care of it out of his father's estate, but by inadvertence or error on his part, as was well known to plaintiff, he failed to qualify his indorsement on the note; that plaintiff knew at all times that he did not mean to bind himself personally; and that the error was mutual between him and plaintiff. The third paragraph of his answer consisted of a plea of no consideration. By amended answer he alleged that the note sued on was made payable at the Ashland National Bank at Ashland, Ky., and that it was never presented to that bank for payment or payment demanded during banking hours on the day the note became due, and that it was not protested for nonpayment, and by reason thereof he was discharged from all liability. By amended and substituted answer, defendant, in addition to a traverse of all the allegations of the petition, pleaded in a second paragraph that he was discharged from liability as an indorser under the provisions of sections 3720b-70 and 3720b-64, Ky. Stat., because the note was never presented for payment at the Ashland National Bank, where it was made payable. In a third paragraph he alleged that his name was signed on the back of the note long after its due date, and that the loan to his father had long been completed, and that neither he nor his father received any consideration for the signing of his name thereon. In a fourth paragraph he reiterated in substance the allegations of the second paragraph of his original answer respecting the purpose for which he signed the note, and asked that the note be so reformed that his signature should be qualified by adding the words, "As witness to the signature of Tom Howard only." By reply, plaintiff denied the material affirmative allegations of the answer, and further alleged that plaintiff placed his name upon the note after its maturity date and that it was understood by all parties, including defendant, that T.M. Howard, Sr., was not able to pay the note at the time it was delivered and Page 632 would not be able to pay same at its maturity date or at any time the note would be due and payable or at the time payment thereof could or should have been demanded, and for that reason presentment of the note for payment at its maturity date or at the time when demand was made, or should have been made, would have been futile and unnecessary, and for these reasons presentment was waived; that notwithstanding these facts plaintiff did present the note to T.M. Howard, Jr., and demanded payment thereof within a reasonable time after his name had been placed thereon as indorser. On motion of defendant the case was transferred to equity and by agreement of parties was referred to the master commissioner to hear proof and report his findings from the whole case. After hearing the evidence, the commissioner filed a report in which he summed up the facts appearing in evidence concerning the execution of the original note by T.M. Howard, Sr., and the renewals thereof. His summary, which we find to be in accord with the evidence, is, in substance, that some time prior to 1922, T.M. Howard, Sr., borrowed the principal sum involved from Catherine Moriarty and executed his note, which was renewed from year to year about the first of January and the accrued interest would be included in each renewal; that plaintiff and the Howard family were close friends and no security was required on the note, except that Mrs. Howard signed all notes with her husband until her death in March, 1929, shortly after which T.M. Howard, Jr., first appears in the transaction by signing his name across the back of a renewal note; that there is no evidence to show that he had anything to do with the transaction prior to that time, and the undisputed evidence shows that he was away from home and did not know of the indebtedness until after his mother's death; that it was a custom for the note to be renewed as of January 1, although it was sometimes executed after that date; that T.M. Howard, Jr., signed his name across the back of the first note indorsed by him after March 7, 1929, and this note was payable one day after date. The note was not paid, and Mrs. Moriarty, who was visiting in Philadelphia about the first of January of the following year, had her nephew write a renewal note, which is the note sued on payable one day after date, and it was mailed by Mrs. Moriarty Page 633 to Ashland for execution; that the note was executed by T.M. Howard, Sr., signed on the back by T.M. Howard, Jr., and mailed to the payee at Philadelphia some time prior to January 10, 1930, as evidenced by her letter of that date acknowledging receipt thereof. This, like the former note, was made payable at the Ashland National Bank, and it is admitted that it was never presented to the bank nor protested for nonpayment. The report then refers to the three defenses relied on by the defendant, namely: (1) That he only signed the note as a witness to his father's signature at the request of Mrs. Moriarty because she believed that Mr. Howard's mind was impaired and she anticipated some trouble about the note after his death; (2) that there was no consideration for his signing the note; and (3) that it was not presented for payment and was not protested for nonpayment. That there was an issue on all these questions except the last, and as a reason for nonpresentment of or protesting the note for nonpayment, plaintiff claimed that presentment and notice of nonpayment were waived by defendant; that during the hearing defendant presented an amended answer pleading the failure of plaintiff to list the note for taxation, but exception to the filing of this pleading was sustained, because defendant had filed in the record a statement showing that Mrs. Moriarty was a nonresident of the state of Kentucky and therefore the note did not have a taxable situs in this state; that after all the evidence was heard, plaintiff offered an amended reply which was rejected because it did not raise any issues not made by former pleading. The commissioner found that defendant had not sustained his first and second defenses, and without going into detail as to his reasons for such finding, it may be said that it is sustained by the evidence. Question is made by counsel as to whether or not this became a demand note because it was signed by the indorser after the date of maturity. The commissioner refers to this question, but correctly concludes that in either event it was the duty of the payee to comply with the law respecting presentment for payment, unless that requirement had been waived as claimed by her. He discusses at length authorities bearing on the question and the character of proof necessary to establish Page 634 waiver of presentment for payment, and concludes that plaintiff failed to sustain the burden of establishing the alleged waiver of presentment. He further found that the note was not presented to defendant for payment and demand was not made upon him within a reasonable time; that the proven facts and circumstances indicate that the reason for failure to present the note and to have it protested for nonpayment was due to lack of knowledge of plaintiff of the necessity of such action, rather than to anything defendant said or did. Plaintiff filed exceptions to all of the commissioner's report adverse to her, and defendant filed exceptions to so much of the report as was adverse to him. On final hearing the chancellor overruled exceptions of the respective parties to and confirmed the report of the commissioner and adjudged that plaintiff's petition be dismissed, and she is prosecuting this appeal. From what we have already said concerning the correctness of the commissioner's finding with respect to the first two defenses as enumerated in his report, it will be seen that the only question to be determined is whether appellee waived presentment for payment. Waiver of presentment may be either express or implied, and since there is no claim or showing of express waiver, the waiver, if any, must be implied from representations, acts, or conduct upon the part of appellee. We find it stipulated that between January 1, 1930, and July 22, 1930, the date of the death of T.M. Howard, Sr., there was not sufficient money in the Ashland National Bank to pay the note if it had been presented for payment. While we infer from the record that the maker of the note was insolvent, there is no direct evidence bearing on that question, nor is there any evidence showing that appellee was acquainted with his father's financial affairs, except that he learned after the death of his mother that his father owed the note to appellant on which his mother had been indorser. Mrs. Moriarty testified to statements made to her by appellee which would indicate that he did not expect the note to be paid during the life of his father but that it would be paid out of the latter's estate after his death. The original answer, as well as his evidence concerning his conversation with Mrs. Moriarty Page 635 leading up, to his signature on the note, would indicate that that was her view of the matter as expressed to him. On August 4, 1930, appellee wrote appellant a letter acknowledging receipt of a letter from her respecting the death of his father. He referred to debts due appellant and "Billie," and stated, "We (evidently referring to the heirs) had a meeting on Thursday night and at present are unable to do anything"; that his father's will, which was to be probated, provided that all the debts first be paid, and that as executor he would see that she got every cent due her, but asked her to be patient as she had been during the life of his father and mother; that because of depressed conditions the property would not bring 60 per cent. of its value; that they would try to sell the "Shamrock" lot and that it would nearly clear up all the debts; that there was no use for her to come to Ashland at present, as he would attend to her affairs respecting the loan. On July 31, 1931, appellant wrote to appellee to the effect that she had received a letter advising her that the property of T.M. Howard, Sr., was going to be sold and would not be sufficient to cover his debts and that she had better go to Ashland. She asked that he look after her part of it, stating that she was very lenient with his parents; that she had been ill during the summer and on advice of her physician was going to the seashore for two weeks; and that if her health was sufficiently improved she would then go to Ashland to attend to her business, but assured him that she was not uneasy so long as he was at that end of the line. She made some reference to the fact that the sheriff was investigating her failure to list the note for taxation. She stated that she did not want to cause the family any trouble but wanted her money as soon as she could get it. She asked him to see after her part because she had no one to do anything for her. Summing up, the evidence shows that appellee took his mother's place as indorser on the notes of his father, all of which were dated January 1 and due one day after date. The first renewal on the note on which his signature appeared was indorsed by him some time in March, and the next renewal was signed by him prior to the 10th of the following January, as is evidenced by Mrs. Moriarty's letter acknowledging receipt of it. In Page 636 conversations with appellee, Mrs. Moriarty indicated that she did not expect the note to be paid during the life of the maker but that it would be paid out of his estate, and that possibly appellee concurred in these views. In his letter to her he did not acknowledge individual liability but indicated that it would be paid out of his father's estate. It may be inferred from the record that the maker of the note was insolvent, and it is agreed that at no time between January 1 and the date of his death would he have had sufficient funds in the Ashland National Bank to pay the note if it had been presented there for payment. If there was a waiver of presentment for payment, it must be implied from these facts. In the case of Meyers Co. v. Battle, 170 N.C. 168,86 S.E. 1034, 1035, it is said: "Presentment and demand at the specified bank are necessary in order to charge a drawer or indorser, in the absence of some good and sufficient reason for failing to make presentment there. One of those reasons is that the maker had no funds at the bank to meet the obligation. If the maker of a note payable at a bank has no funds in the bank when it falls due, demand of payment there is unnecessary." To the same effect, see Sherer v. Easton Bank, 33 Pa. 134. In the case of Bessenger v. Wenzel et al., 161 Mich. 61,125 N.W. 750, 753, 27 L.R.A. (N.S.) 516, it is said: "Any act, course of conduct, or language of the drawer or indorser calculated to induce the holder not to make demand or protest or give notice, or to put him off his guard, or any agreement by the parties to that effect, will dispense with the necessity of taking these steps, as against any party so dealing with the holder." It was held, however, that the holder would not be released from presentment because the maker had no funds in the bank unless the indorser knew of that fact. From the foregoing and other cases from foreign jurisdictions, it will be seen that there is a conflict of authority respecting the necessity for presentment for payment when the maker had no funds in the bank. Page 637 In the recent case of Greenwade v. First National Bank of Louisa, 240 Ky. 60, 41 S.W.2d 369, 371, it is said: "It is true that a mere accommodation indorser, even though he knows that the note will not be paid when presented to the maker because of the maker's insolvency, is entitled to notice of protest." The opinion cites Taylor v. Bank of Illinois, 23 Ky. (7 T.B. Mon.) 576, where it was held in effect that an accommodation indorser is entitled to notice of dishonor, although he knew that the drawee had no funds of the drawer and there was no reasonable expectation that the bill would be honored. In the case of Slack v. Longshaw, 8 Ky. Law Rep. 166, it is said: "When the action is against the drawer he will not be permitted to defend on the ground that there was no demand or notice of protest, if he had no right to require or expect the bill to be paid; and it seems that the mere fact that he had no funds, and that none were provided to meet the bill, is prima facie sufficient to show that he had no such right. * * But even in that case the endorser is entitled to strict demand and notice, unless he has participated in the fraud of the drawer." In the Greenwade Case it appears that the notes in controversy were renewed from time to time, and the renewal notes would be delivered to the makers or to some of the indorsers and would be passed from one to another until all the signatures were secured, when they would be delivered to the bank; some time being required to secure the signatures and delivery of the renewal notes. It was said: "This method of executing and delivering the renewal notes strongly indicates that notice of protest and dishonor was intended to be and was thereby waived by the parties interested in them." We find it to be a general rule that insolvency or bankruptcy of the persons primarily liable does not excuse demand or notice of dishonor, even though the indorser knows of such insolvency or bankruptcy. Cristina v. Mattenberger (Cal.App.)289 P. 934, affirmed 212 Cal. 670, 300 P. 450; Foundry Mfg. Co. v. Farr, Page 638 96 Vt. 382, 119 A. 885. In the latter case it was held that this rule applies even though the instrument was indorsed when overdue. This rule has also been applied to corporate officers acting as indorsers for the corporation. Buehner v. Sehlhorst,149 Md. 474, 132 A. 70. To the contrary, however, see Waterproof Paper Co. v. Van Buren, 182 Wis. 640, 197 N.W. 338; Bassenhorst v. Wilby,45 Ohio St. 333, 13 N.E. 75. In the case of Farmers' Bank Trust Co. v. Dent et al., 206 Ky. 405, 267 S.W. 202, 204, it is said: "The waiver may result from any words and acts which by fair and reasonable construction are of such character as will justify the holder in assuming that the indorser intended to dispense with notice, or induce the holder to forego the usual steps necessary to fix the liability of the indorser. 8 C. J. 699. Inasmuch, however, as waivers are in derogation of the admitted rights of an indorser, they are construed rather strictly, and will not be extended beyond the fair import of the terms used, nor will they be inferred from doubtful acts or language." In Baker v. Valentine, 216 Ky. 801, 288 S.W. 771, it was held that waiver of presentment and notice of dishonor must be established by clear and satisfactory proof. To the same effect, see Mechanics' Farmers' Savings Bank v. Katterjohn,137 Ky. 427, 125 S.W. 1071, Ann. Cas. 1912A. 439. In the latter case it was held in effect that a promise to renew is not an admission of liability upon the part of the indorser, because he might have a willingness to renew but not to pay. In the case of Maynard Trust Co. v. Furbush, 243 Mass. 190,137 N.E. 270, it was held in substance that giving of renewal notes as maturity notes become payable, coupled with the fact that the indorser was treasurer of the corporate maker and director of the corporate payee, did not constitute waiver of presentment for payment. If an action had been brought against the maker of the note in controversy and he had interposed as a defense failure of presentment and notice of dishonor, the evidence as to the custom and course of dealings Page 639 between him and Mrs. Moriarty is such as would lead her to think that it was not expected or necessary that she should take such steps in order to fix the liability of the maker; but when we come to a consideration of evidence concerning the actions and course of conduct between appellant and appellee, an entirely different situation is presented. In order to fix liability on him and to hold that he waived presentment of payment would require too many doubtful inferences and implications; however, it must be admitted that a close question is presented and the balance might turn either way. It is a rule of general application that while the appellate court is not bound by a chancellor's finding of fact but will review and consider the evidence for itself, it will not disturb a finding supported by the weight of the evidence or where, on a consideration of the entire record, there is merely a doubt as to the correctness of the chancellor's finding. In view of this rule and the further rule running through all foreign and domestic cases that a waiver being a derogation of an indorser's rights, clear and convincing proof will be required to show waiver and to fix liability on the indorser, we would not be authorized to disturb the chancellor's decision. Judgment affirmed.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3051674/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PLATT ELECTRICAL SUPPLY, INC., an  Oregon corporation, Plaintiff-Appellant, v. No. 05-15672 EOFF ELECTRICAL, INC., Plaintiff,  D.C. No. CV-03-00992-RMW and OPINION UNDERWRITERS LABORATORIES, INC., a Delaware not-for-profit corporation, Defendant-Appellee.  Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding Argued and Submission Deferred February 16, 2007 Submitted February 14, 2008 San Francisco, California Filed April 15, 2008 Before: Ronald M. Gould and Johnnie B. Rawlinson, Circuit Judges, and Alfred V. Covello,* Senior Judge. Opinion by Judge Rawlinson *The Honorable Alfred V. Covello, Senior United States District Judge for the District of Connecticut, sitting by designation. 3993 3996 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL COUNSEL James O. Devereaux (argued), and Jan A. Kopczynski, Berd- ing & Weil LLP, Alamo, California, for Appellant Platt Elec- trical Supply, Inc. Michael J. Abernathy (argued), and Christopher I. Cedillo, Bell, Boyd & Lloyd LLC, Chicago, Illinois, for Appellee Underwriters Laboratories, Inc. OPINION RAWLINSON, Circuit Judge: In its complaint, Appellant Platt Electrical Supply, Inc. (Platt) alleged that Appellee Underwriters Laboratories, Inc. (UL), a non-profit consumer safety group, negligently misrep- resented and fraudulently concealed that defective in-wall heaters were safe. Platt challenges the district court’s grant of UL’s motion to dismiss and motion for judgment on the PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 3997 pleadings. Platt contends that the district court erred in dis- missing its negligent misrepresentation and fraudulent con- cealment claims as time-barred under California’s statutes of limitations. Platt asserts that its claims were not time-barred in view of California’s discovery rule and UL’s fraudulent concealment. Platt also maintains that the district court erred in dismissing its claims without leave to amend the complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the judgment of the district court. I. BACKGROUND Platt filed its complaint in 2003. According to its complaint,1 Platt was “engaged in the distribution, marketing, and whole- sale supply of electrical products intended for consumer pur- chase and use.” UL “is a not-for-profit corporation . . . principally engaged in the business of formulating safety stan- dards for new consumer products, testing such products against its standards, determining whether the product so tested conforms to the standards, and, if the product does comply, authorizing the product’s manufacturer to imprint UL’s distinctive mark on the complying product.” Platt asserted that Cadet Manufacturing Company (Cadet) “manufactured . . . in-wall space heaters under the names ‘Cadet’ and ‘Encore.’ ” UL evaluated Cadet’s heaters, and determined that the heaters complied with UL’s safety stan- dards. UL “authorized Cadet to include the UL mark on the labels of the Heaters.” UL’s “process is known as ‘listing’, and a product that has qualified to bear the UL mark is said to be a ‘listed product.’ ” 1 The factual background is based on Platt’s complaint, because, in reviewing a motion to dismiss, “[w]e accept as true all well-pleaded facts in the complaint and construe them in the light most favorable to the non- moving party.” Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006) (citation omitted). The same standard applies to judgment on the plead- ings. Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). 3998 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL Platt charged that by permitting these listings, “UL impliedly represented to Plaintiffs” that the heaters were “suitable for reasonably safe use as an in-wall heater . . .” Platt alleged that the heaters “manufactured between 1978 and the present, and listed by UL since at least 1985, are inherently defective.” According to Platt, “if the heaters had not been endorsed by UL then neither of the Plaintiffs would have engaged in the purchase, sale, advertisement, or distribu- tion of the Heaters. Moreover, Plaintiffs are informed and believe, and based thereon allege, that at no time prior to a 1999 CPSC [Consumer Product Safety Commission] recall did they become aware that the Heaters were inherently defective.” Platt alleged that “based on the express approval by UL of the Heaters, [it] distributed in excess of nineteen-thousand [sic] (19,000) Cadet heaters.” Platt also asserted “that since at least 1988, UL became aware that the Heaters were exhibiting defects . . . . However, UL took no action relative to rescinding its endorsement of the product or notifying the general public, product distribu- tors or retailers . . . of the dangerous defects inherent in the Heaters.” “Despite its knowledge, as early as 1988, of the defects inherent in the Heaters, UL continued to list Cadet heaters.” According to Platt, “Plaintiffs did not discover Defendants’ wrongful conduct or its basis for liability until 2001 when they became involved in [sic] consumer class action . . . and were granted through pre-trial discovery lim- ited access to Defendant UL’s files concerning the Heaters.” Additionally, Platt charged that “Defendants’ wanton and reckless refusal to disclose such information fraudulently con- cealed from Plaintiffs crucial facts . . .” “[I]n or around 1998, the [CPSC] became aware that Cadet heaters were defective. Accordingly, on or around January 14, 1999, the CPSC filed an administrative order recalling all PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 3999 Cadet heaters . . .” “Plaintiffs were required, under controlling federal statute to bear a portion of the costs of conducting the recall.” “[C]ontemporaneous to the CPSC recall, a consumer class action was filed on behalf of all purchasers of the Heaters . . .” Platt “was named as a defendant . . . [and] entered into a settlement agreement with the class, pursuant to which Plaintiff PLATT continues to pay money to the class.” According to Platt, it “has paid in excess of one-million one- hundred fifty-six-thousand dollars ($1,156,000.00) pursuant to the class settlement.” In its negligent misrepresentation claim, Platt alleged that “at least since 1989 [UL] had knowledge that the Heaters failed and could, and in fact had, caused catastrophic injury and death. Despite such knowledge, [UL] continued to repre- sent to the world at large that the Heaters were safe products.” “[UL] continued to allow its mark to be placed on the Heaters knowing that consumers, distributors, and retailers rely on the mark as an assurance of safety. [UL] continued to make such material representations of material facts without an adequate basis or knowledge for making such representations.” Accord- ing to Platt, “[UL] failed to act because such action would constitute a tacit admission that [UL’s] testing procedures were flawed and such an admission would undermine [UL’s] position as the self-proclaimed leader in certifying the safety of consumer goods.” Platt also alleged that “[a]t no time prior to the Class Action or CPSC recall did Plaintiffs have any reason to sus- pect that the Heaters were unsafe. Plaintiffs relied on the UL mark as an assurance of the Heaters’ safety and suitability for its end use . . .” In its fraudulent concealment claim, Platt alleged that it was not required to conduct an independent investigation of the heaters’ safety. Rather, Platt “heavily [relied] on the exis- 4000 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL tence, or non-existence, of the UL mark on a good.” Platt alleged that “[UL], by allowing their mark to remain on the Heaters, intentionally intended to mislead consumers, retail- ers, and distributors like Plaintiff into believing that [UL’s] listing procedures accurately reflected that the Heaters were suitable and safe for their intended use by consumers and were to be absolutely relied on so that [UL] could maintain their position as self-proclaimed leaders in certifying the safety of consumer goods.” Platt also asserted that UL “as- sumed a duty to disclose, whether by de-listing or public noti- fication, any known incidents that might dissuade consumers, retailers and distributors like [Platt] from trading in the Heat- ers.” The district court determined that Platt was “on inquiry notice of their claims as early as 1999. Specifically, the court held that “once [Platt] became aware [through the CPSC recall and class action] that the cadet heaters they sold were potentially defective, and they began to suffer damages, [they] were on inquiry notice that UL, on whose mark they relied, may have either negligently tested or negligently endorsed those products . . . .” The district court, therefore, dismissed Platt’s negligent misrepresentation claim as time-barred with- out leave to amend. However, the district court denied UL’s motion to dismiss Platt’s fraudulent concealment claim. The district court subsequently granted UL’s motion for judgment on the pleadings and dismissed Platt’s fraudulent concealment claim as time-barred, again without leave to amend. Platt dismissed its remaining equitable indemnification claim, and filed a timely notice of appeal. II. STANDARDS OF REVIEW We “review de novo the district court’s decision to grant a motion to dismiss pursuant to FRCP 12(b)(6).” Watson, 436 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4001 F.3d at 1157 (citation omitted). “A claim should be dismissed only if it appears beyond doubt that the plaintiff can establish no set of facts under which relief could be granted.” Id. (cita- tion omitted). We “review judgment on the pleadings de novo.” Stanley v. Trustees of the Cal. State Univ., 433 F.3d 1129, 1133 (9th Cir. 2006) (citation omitted). “Judgment on the pleadings is proper when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law.” Id. (citation omitted). The parties contest the applicable standard of review for the district court’s dismissal of Platt’s claims without leave to amend. Platt contends that the standard of review is de novo. UL counters that the standard of review is for an abuse of dis- cretion. This appeal involves the issue of whether any amendment would be futile due to dismissal pursuant to the applicable statutes of limitations. We review such issues for an abuse of discretion. See Naas v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997) (“[T]he district court did not abuse its discretion in denying leave to amend, as the Naases’ potential amended claim would still be barred by the statute of limitations.”); see also Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (“A district court, however, does not abuse its dis- cretion in denying leave to amend where amendment would be futile.”) (citation omitted). III. DISCUSSION A. The Discovery Rule And The Fraudulent Concealment Doctrine As Applied To Platt’s Claims [1] Pursuant to California Code of Civil Procedure § 338(d), there is a three-year statute of limitations for “[a]n 4002 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” For negligent misrepresentation, there is a two-year statute of limitations. Cal. Civ. Proc. Code § 339(1); Ventura County Nat’l Bank v. Macker, 49 Cal. App. 4th 1528, 1531 (1996). “Since a cause of action accrues when the elements of the cause of action, including damage occur, the appreciable and actual harm that results in accrual must be harm of the spe- cific type that is recoverable as damages on that type of cause of action.” County of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292, 317 (2006) (citations and internal quota- tion marks omitted) (emphasis in the original). [2] “A cause of action accrues when the claim is complete with all of its elements.” Slovensky v. Friedman, 142 Cal. App. 4th 1518, 1528 (2006), as modified (citation omitted). “Although this ordinarily occurs on the date of the plaintiff’s injury, accrual is postponed until the plaintiff either discovers or has reason to discover the existence of a claim, i.e., at least has reason to suspect a factual basis for its elements.” Id. at 1528-29 (citations omitted). “Plaintiffs are required to con- duct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” Id. at 1529 (citation and alteration omitted). “So long as there is a reasonable ground for suspicion, the plaintiff must go out and find the facts; she cannot wait for the facts to find her.” Id. (citation omitted). Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. In so using the term elements, we do not take a hypertechnical approach to the application of the discovery rule. PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4003 Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a par- ticular cause of action, we look to whether the plain- tiffs have reason to at least suspect that a type of wrongdoing has injured them. V.C. v. Los Angeles Unified Sch. Dist., 139 Cal. App. 4th 499, 516 (2006) (citations, alteration, and internal quotation marks omitted). “A common thread seems to run through all the types of actions where courts have applied the discovery rule. The injury or the act causing the injury, or both, must have been difficult for the plaintiff to detect.” Prudential Home Mortgage Co. v. Superior Court, 66 Cal. App. 4th 1236, 1246-47 (1998), as modified. “A close cousin of the discovery rule is the well accepted principle of fraudulent concealment.” Bernson v. Browning- Ferris Indus. of California, Inc., 7 Cal. 4th 926, 931 (1994) (In Bank) (citation, alteration and internal quotation marks omitted). “The rule of fraudulent concealment is applicable whenever the defendant intentionally prevents the plaintiff from instituting suit . . .” Id. at 931 n.3 (citation omitted). “In order to establish fraudulent concealment, the complaint must show: (1) when the fraud was discovered; (2) the circum- stances under which it was discovered; and (3) that the plain- tiff was not at fault for failing to discover it or had no actual or presumptive knowledge of facts sufficient to put him on inquiry.” Baker v. Beech Aircraft Corp., 39 Cal. App. 3d 315, 321 (1974) (citation omitted). “In urging lack of means of obtaining knowledge, it must be shown that in the exercise of reasonable diligence the facts could not have been discovered at an earlier date.” Id. (citation omitted). 1. Platt’s Negligent Misrepresentation Claim “Negligent misrepresentation is narrower than fraud.” Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th 967, 984 (2003). “The elements of a cause of action for fraud and a 4004 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL cause of action for negligent misrepresentation are very simi- lar . . . . [B]oth torts are defined as deceit. However, the state of mind requirements are different.” Intrieri v. Superior Court, 117 Cal. App. 4th 72, 85 (2004) (footnote reference omitted). “Negligent misrepresentation lacks the element of intent to deceive. Therefore, where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negli- gent misrepresentation, a form of deceit.” Id. at 86 (citations, alteration, and internal quotation marks omitted). [3] Platt was on inquiry notice of its negligent misrepresen- tation claim in 1999. In 1999, Platt became aware of the heat- ers’ defects due to the CPSC recall. Platt was statutorily required to bear a portion of the recall’s costs. “[C]ontemporaneous to the CPSC recall,” Platt was named a defendant in a class action concerning the heaters’ defects. In 1999, Platt should have been suspicious that UL negligently represented that the heaters were safe, given the recall and the class action suit. Based on the extensive legal and economic repercussions produced by the recall and class action, Platt had “reason to at least suspect that a type of wrongdoing ha[d] injured [it].” V.C., 139 Cal. App. 4th at 516. Platt, therefore, did not have to wait until 2001, during the discovery process for the class action, to “suspect that the injury was caused by someone’s wrongful act.” Brandon G. v. Gray, 111 Cal. App. 4th 29, 35 (2003); see also Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1113 (1988) (“[I]t is the discovery of facts, not their legal significance, that starts the statute.”) (citation omitted). [4] Similarly, Platt’s claim is not tolled pursuant to the fraudulent concealment doctrine. Platt alleged that it was not privy to UL’s documents concerning UL’s allegedly fraudu- lent conduct until 2001. However, Platt failed to demonstrate that UL’s conduct concealed the facts of its alleged negligent misrepresentation, as Platt had notice of UL’s potential wrongdoing as early as 1999. See Goldrich v. Natural Y Sur- gical Specialties, Inc., 25 Cal. App. 4th 772, 784 (1994) (“A PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4005 defendant’s fraudulent concealment tolls the statute of limita- tions only when, as a result of that concealment, the plaintiff fails to discover some critical fact.”) (citation omitted); see also Parsons v. Tickner, 31 Cal. App. 4th 1513, 1525 (1995) (“Under this rule constructive and presumed notice or knowl- edge are equivalent to knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to [its] investigation (such as public records or corporation books), the statute commences to run.”) (citation omitted). Platt’s reliance on Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797 (2005), is misplaced. In Fox, the plaintiff sued a physician for malpractice due to complications from gastric bypass surgery. Id. at 802. During the physician’s deposition, the plaintiff first learned of defects in the medical device uti- lized. Id. at 804. The plaintiff then filed a products liability action against the device’s manufacturer outside the applica- ble one-year statute of limitations. Id. at 804-05. The Califor- nia Supreme Court held: It is therefore consistent with our prior applications of the discovery rule to delay accrual of a products liability cause of action even when a related medical malpractice claim has already accrued, unless the plaintiff has reason to suspect that his or her injury resulted from a defective product . . . . [I]f a plain- tiff’s reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly dif- ferent sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim. Id. at 813. [5] Platt’s claims did not involve ignorance of the heater’s defects. Platt was aware of UL’s identity and alleged wrong- 4006 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL doing in 1999. Based on the recall and subsequent class action, it should have been obvious to Platt that its injuries potentially stemmed from UL’s misrepresentations of the heaters’ safety, particularly given Platt’s reliance on UL’s endorsement. The district court, therefore, properly dismissed Platt’s negligent misrepresentation claim, filed in 2003, as barred by the two-year statute of limitations. See Jolly, 44 Cal. 3d at 1113-14. 2. Platt’s Fraudulent Concealment Claim [6] “With respect to actions based on fraud, the statute of limitations is tolled whenever plaintiff is able to show the defendant fraudulently concealed facts which would have led him to discover his potential cause of action.” Snow v. A. H. Robins Co., Inc., 165 Cal. App. 3d 120, 127-28 (1985) (cita- tion omitted). “Otherwise, in such cases, the defendant by concealing his fraud, would effectively block recovery by the plaintiff because of the intervention of the statute of limita- tions.” Id. at 128 (citation omitted). [7] Platt’s fraud claim was not tolled pursuant to California law. In Norgart v. Upjohn Co., 21 Cal. 4th 383 (1999), the California Supreme Court articulated: [T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof — when, simply put, he at least suspects that someone has done something wrong to him, wrong being used, not in any technical sense, but rather in accordance with its lay understanding. He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. He has reason to suspect when he has notice or informa- tion of circumstances to put a reasonable person on inquiry; he need not know the specific facts neces- sary to establish the cause of action; rather, he may PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4007 seek to learn such facts through the process contem- plated by pretrial discovery; but, within the applica- ble limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place — he cannot wait for them to find him and sit on his rights; he must go find them himself if he can and file suit if he does. Id. at 397-98 (citations, alteration, and internal quotation marks omitted) (emphasis in the original). The California Court of Appeal has observed that “[t]he courts interpret dis- covery in this context to mean not when the plaintiff became aware of the specific wrong alleged, but when the plaintiff suspected or should have suspected that an injury was caused by wrongdoing.” Kline v. Turner, 87 Cal. App. 4th 1369, 1374 (2001). “A plaintiff need not be aware of the specific facts necessary to establish a claim since they can be devel- oped in pretrial discovery. Wrong and wrongdoing in this context are understood in their lay and not legal senses.” Id. (citation omitted). As the court reasoned in Brandon G.: Code of Civil Procedure section 338, subdivision (d), effectively codifies the delayed discovery rule in connection with actions for fraud, providing that a cause of action for fraud is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. In a case such as this, that date is the date the complain- ing party learns, or at least is put on notice, that a representation was false. 111 Cal. App. 4th at 35 (internal quotation marks omitted). [The California Supreme Court in] Norgart explained that by discussing the discovery rule in terms of a plaintiff’s suspicion of elements of a cause of action, it was referring to the generic ele- ments of wrongdoing, causation, and harm. In so 4008 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL using the term elements, we do not take a hypertech- nical approach to the application of the discovery rule. Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them. Fox, 35 Cal. 4th at 807 (citation and internal quotation marks omitted). Recently, in Hamilton Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203 (9th Cir. 2007), we determined that a manufacturer’s fraud claim was time-barred. We held: Appellant argues that its fraud claim did not accrue until a deposition in 2003, when it learned of Appel- lees’ specific intention to deceive their customers regarding the health hazards of Calidria. . . . [I]t is not necessary that Hamilton had notice of Appellees’ specific intention to deceive before the fraud action accrued. All that is relevant is that a reasonable per- son — especially a sophisticated manufacturer of asbestos — would have been on notice of a potential misrepresentation. This is the date that the complain- ing party learns, or at least is put on notice, that a representation is false. Id. at 1206-07 (citation omitted). [8] The rule stated in Hamilton Materials that a cause of action for fraud under California law accrues when a plaintiff has inquiry notice, that is, when he or she “learns, or at least is put on notice, that a representation is false[,]” 494 F.3d at 1207 (citation omitted), derives from a California Court of Appeal decision interpreting a provision of the California Code of Civil Procedure. See Brandon G., 111 Cal. App. 4th at 35 (explaining that the statutory provision at issue “effec- PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4009 tively codifies the delayed discovery rule in connection with actions for fraud” and that the date of discovery triggering the limitations period under that provision coincides with the date that the plaintiff learned or was put on notice of a false repre- sentation). [9] While the Hamilton Materials analysis is thus limited to cases of fraud governed by California law, the concept of inquiry notice to which Hamilton Materials alludes has also arisen in the federal securities fraud context in our recent decision in Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017 (9th Cir. 2007). In Betz, we held that once sufficient indicia of fraud exist to place an investor on inquiry notice, the statute of limitations will begin to run on a claim under § 10(b) of the Securities Exchange Act when the investor, in the exercise of reasonable diligence, should have discovered the facts giving rise to his or her claim. Id. at 1021, 1024-25. Under that standard, we concluded that fact issues existed, precluding summary judgment, about whether an investor was on inquiry notice and whether she should have discovered the facts underlying her fraud claim when she had raised concerns about her declining account balance, but was assured by rep- resentatives of the defendant brokerage firm that they would “take care of” the problems with her account and urged to refrain from any legal action. See id. at 1027. So far as we can discern from the record, the instant case differs from Betz in that Platt was given no assurances by UL that could have lulled Platt into inaction after the defects in the Cadet heaters became public knowledge pursuant to the 1999 CPSC recall. Furthermore, while declining account balances alone were held to be insufficient indicia of fraud to create inquiry notice as a matter of law in Betz, UL was engaged in endorsing prod- ucts for reasonably safe consumer use, and its listing of the Cadet heaters as safe, in combination with the 1999 recall, was sufficient to give Platt notice that UL’s prior assurances of the heaters’ safety were potentially false. It is irrelevant what else Platt might have learned through further diligent investigation after 1999 about UL’s misrepresentations or 4010 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL intent to deceive Platt and others regarding the Cadet heaters’ safety, because in 1999 Platt already knew that UL’s prior representations about the heaters’ safety were false, and that knowledge was sufficient to trigger the statute of limitations for fraud under California law. See Hamilton Materials, 494 F.3d at 1206-07 (holding that a plaintiff need not have “notice of [the defendant’s] specific intention to deceive before the fraud action accrued. All that is relevant is that a reasonable person . . . would have been on notice of a potential misrepre- sentation”) (citation omitted). [10] These cases demonstrate that Platt’s fraudulent con- cealment claim was not tolled. Platt conceded that “[i]t may be fair to say (as did the district judge in this case) that once Platt learned that the heaters were defective and posed a safety hazard, it was on notice that UL’s certification (and, thus, its representation) of safety was factually false.” At that point, Platt was aware that it had suffered an economic injury stemming from its payment of a portion of the costs from the 1999 recall and class action settlement. It also knew that this injury stemmed from UL’s alleged wrongdoing — the pur- ported misrepresentation. Platt acknowledged its reliance and dependence on UL’s representation and was involved in an extensive recall and subsequent class action litigation con- cerning the defective heaters. After becoming aware in 1999 of its economic injury stemming from the defective heaters and UL’s representations concerning their safety, Platt had a basis to question UL’s representations concerning the heaters’ safety. Platt’s fraudulent concealment claim, filed in 2003, was therefore barred by the three-year statute of limitations. See Hamilton Materials, 494 F.3d at 1206; see also Kline, 87 Cal. App. 4th at 1374.2,3 2 Grisham v. Phillip Morris U.S.A., Inc., 40 Cal. 4th 623 (2007), and E- Fab, Inc. v. Accountants, Inc. Servs., 153 Cal. App. 4th 1308 (2007), are not to the contrary. As we observed in Hamilton Materials, “Grisham is predominantly a personal injury case, and does not speak to whether knowledge of scienter is a required element for a fraud cause of action to PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL 4011 B. The District Court’s Denial Of Platt’s Request For Leave To Amend Its Complaint [11] The district court did not abuse its discretion in dis- missing Platt’s negligent misrepresentation and fraudulent accrue. Nevertheless, if one were to draw a strained comparison between the present case and Grisham, it is clear that Appellant has offered no credible evidence to rebut a presumption that it had knowledge of the wrongful cause of its alleged injuries.” 494 F.3d at 1207 n.1. In E-Fab, a case concerning misrepresentations related to a background check, 153 Cal. App. 4th at 1313, the California Court of Appeal emphasized that “both plaintiff’s injury and its cause were imperceptible.” Id. at 1326. Here, Platt’s injury and its cause were not “imperceptible,” as Platt acknowledged that it was aware of UL’s false representation and the sub- sequent injury before 2001. 3 Platt also contends that the district court erred in holding that UL did not have a duty to disclose the heaters’ unsafe conditions. The district court ruled in Platt’s favor on the issue of whether Platt stated a claim for fraudulent concealment. The district court incidentally stated that Platt had failed to allege a transactional or confidential relation- ship between Platt and UL as required to trigger a duty to disclose. How- ever, the dispositive ruling was that Platt’s fraudulent concealment claim was barred by the statute of limitations. “[C]ourts review judgments, not statements in opinions . . .” Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001) (citation and internal quotation marks omitted). “A party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” Id. (citations omitted). Because Platt pre- vailed on the issue of whether there was a viable fraudulent concealment claim, it lacks standing to appeal the district court’s favorable ruling. See id. at 1075-76. In any event, because Platt failed to allege that there was a transactional relationship between Platt and UL, the district court properly observed that, pursuant to California law, Platt’s fraudulent concealment claim could not be premised on a duty to disclose. See LiMandri v. Judkins, 52 Cal. App. 4th 326, 337 (1997) (“[W]here material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts . . . . As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.”) (citation omitted) (emphasis in the orig- inal). 4012 PLATT ELECTRICAL SUPPLY v. EOFF ELECTRICAL concealment claims without leave to amend. Platt contended that it could amend its complaint to allege that it received information in 2001, during discovery for the class action, that a former UL employee stated that UL concealed the heat- ers’ unsafe conditions. [12] However, because Platt’s claims are barred by the stat- ute of limitations, any amendments would have been futile. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (“Although there is a general rule that parties are allowed to amend their pleadings, it does not extend to cases in which any amendment would be an exercise in futility, or where the amended complaint would also be subject to dis- missal. . .” ) (citations omitted); see also Naas, 130 F.3d at 893. IV. CONCLUSION The district court properly dismissed Platt’s negligent mis- representation and fraudulent concealment claims as barred by the statutes of limitations, and did not abuse its discretion in dismissing Platt’s claims without leave to amend. AFFIRMED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/3051676/	FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT In re: AFI HOLDING, INC.,  Debtor, No. 06-55033 CHRISTOPHER R. BARCLAY, D.C. Nos. Successor Trustee,  CV-05-03232-PA Appellant, CV-05-04275-PA v. KEITH MACKENZIE, Appellee.  In re: AFI HOLDING, INC.,  Debtor, No. 06-55070 KEITH MACKENZIE Appellant,  D.C. No. CV-05-03232-PA v. OPINION CHRISTOPHER R. BARCLAY, Successor Trustee, Appellee.  Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Argued and Submitted February 12, 2008—Pasadena, California Filed April 16, 2008 4079 4080 IN RE AFI HOLDING, INC. Before: Stephen S. Trott, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Trott 4082 IN RE AFI HOLDING, INC. COUNSEL David R. Weinstein, Sharon Z. Weiss, Weinstein, Weiss & Ordubegian LLP, Los Angeles, California, for the appellant/ cross-appellee. Paul J. Laurin, Weiner & Laurin, LLP, Encino, California, for the appellee/cross-appellant. OPINION TROTT, Circuit Judge: The bankruptcy court granted summary judgment in favor of the Trustee for Advance Finance Incorporated (“AFI”), avoiding transfers from AFI to Keith Mackenzie under CAL. CIV. CODE § 3439.04(a), and holding that the good faith exception to fraudulent transfers under CAL. CIV. CODE §3439.08(a) was barred as a matter of law because no “rea- sonably equivalent value” was exchanged for the transfers. The district court reversed and remanded, holding that the IN RE AFI HOLDING, INC. 4083 good faith exception was not barred as a matter of law. We have jurisdiction pursuant to 28 U.S.C. § 158(d),1 and we affirm. I BACKGROUND Keith Mackenzie, like many others, invested funds in AFI. AFI was operated by Gary Eisenberg who entered a guilty plea to federal securities and mail fraud charges in 2002 and is currently serving a 63-month prison sentence. In that plea, he conceded that he operated AFI as a Ponzi scheme—paying investors purported profits with funds raised from other inves- tors. Mackenzie invested $73,400 with AFI in 1995 and 1996 as a purported limited partner. In connection with his subsequent withdrawal from AFI, he received payments totaling $89,824.18 between 1996 and 1997. Of the total payments, $73,400 was a return of Mackenzie’s principal investment. The rest, roughly $16,424, was a fictitious gain on the princi- pal investment. AFI’s bankruptcy proceedings commenced on October 22, 2001. In October of 2003, the Trustee, Carolyn A. Dye, com- menced adversary proceedings against approximately 170 of AFI’s investors, including Mackenzie, to avoid transfers made to them by AFI.2 The Trustee claimed avoidance and recovery 1 Although the district court’s order remanded the case to the bankruptcy court for further factual findings, and thus was not final, we have jurisdic- tion to hear the appeal. The Ninth Circuit has taken a flexible approach to finality in the context of bankruptcy proceedings, and where, as here, the issues raised are legal in nature and a resolution could “dispose of the case or proceedings and obviate the need for fact finding,” the court will retain jurisdiction in order to address the issues on appeal. In re Emery, 317 F.3d 1064, 1069 (9th Cir. 2003) (citation omitted). 2 While the suit was pending in the district court, Carolyn Dye was removed as the trustee and replaced by successor trustee Christopher R. Barclay. 4084 IN RE AFI HOLDING, INC. of fraudulent transfers pursuant to 11 U.S.C. §§ 544(b) and 550 and CAL. CIV. CODE §§ 3439.04 and 3439.09. The bankruptcy court granted the Trustee’s summary judg- ment motion seeking to avoid transfers made by AFI to Mac- kenzie. Mackenzie appealed the judgment to the district court, which reversed in part. The reversal was limited to the amount of principal initially “invested” by Mackenzie. The district court reasoned that Mackenzie had exchanged his pur- ported partnership interest for a proportionately reduced resti- tution claim, distinguishing the facts of the transaction from a simple receipt of money on account of an equity interest as a limited partner. The district court affirmed the bankruptcy court as to the remaining $16,424, the fictitious gain on Mac- kenzie’s principal investment, as it was in excess of Macken- zie’s restitution claim, and it was not transferred in connection with Mackenzie’s withdrawal from the partnership. The district court ordered the matter remanded to the bank- ruptcy court to determine whether Mackenzie had received the $73,400 transfer in good faith and to determine also how much, if any, prejudgment interest was payable to the Trustee. The Trustee appeals, arguing that the debtor’s estate is enti- tled to the entire amount transferred from AFI to Mackenzie, principal and the fictitious gain, as well as prejudgment inter- est. Mackenzie cross appeals, arguing that he is entitled to the entire amount transferred from AFI to him. II DISCUSSION A. Standard of Review. We review de novo the district court’s decision on an appeal from a bankruptcy court. In re Raintree Healthcare Corp., 431 F.3d 685, 687 (9th Cir. 2005). Thus, we apply the IN RE AFI HOLDING, INC. 4085 same standard of review applied by the district court. Id. at 687. No deference is given to the district court’s decision. In re Salazar, 430 F.3d 992, 994 (9th Cir. 2005). Summary judg- ment is to be granted if the pleadings and supporting docu- ments, viewed in the light most favorable to the non-moving party, show that there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). B. This is a Fraudulent Transfer Case. As an initial matter, it is important to recognize that this case implicates only fraudulent transfer law. Our concern here is not the law of preferences under 11 U.S.C. § 547, because we are years removed from that section’s ninety-day reach back period. See 11 U.S.C. § 547(b)(4)(A). Similarly, we are not concerned with the law of subordination under 11 U.S.C. § 510(b), because we are a step removed from distribution of the bankruptcy estate under § 510(b).3 See Wyle v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589, 597 (9th Cir. 1991) (“United Energy”). Instead, this case is driven by California state fraudulent transfer law. As a result, our “analysis is directed at what the debtor surrendered and what the debtor received irrespective of what any third party may have gained or lost.” Id. (emphasis added and internal quota- tion marks omitted). 3 We find unsupported the Trustee’s argument that the limited partner- ship interest should be subordinated because of the single unsecured credi- tor in this case. Although the Trustee represented to this court at oral argument that there are unsecured claims “at least in the low six figures,” the record, and attempted augmentation of the record by the Trustee, fail to show evidence of any unsecured creditor beyond the one minimal unse- cured creditor identified in the parties’ briefs. Such argument and unsup- ported representation cause us to view this argument with doubt. 4086 IN RE AFI HOLDING, INC. C. Applicable Law. [1] An action to recover fraudulent transfers under 11 U.S.C. § 548(a)(1) of the Bankruptcy Code is time barred because the transfers from AFI to Mackenzie occurred more than one year before bankruptcy proceedings commenced.4 Section 544(b) of the Bankruptcy Code, however, allows a bankruptcy trustee to avoid any transfer of a debtor’s property that would be avoidable by an unsecured creditor under appli- cable state law. See In re Acequia, Inc., 34 F.3d 800, 809 (9th Cir. 1994). One creditor of any amount will suffice for the purposes of § 544(b). Id. 809-10. In this case, at least one unsecured creditor existed, and CAL. CIV. CODE §§ 3439.04(a) and 3439.08(a) provide California state law allowing an unse- cured creditor to reach the transfers made by AFI to Macken- zie in 1996 and 1997. [2] Where state statutes are similar to the Bankruptcy Code, cases analyzing the Bankruptcy Code provisions are persua- sive authority. Hayes v. Palm Seedlings Partners-A (In re Agric. Research and Tech. Group, Inc.), 916 F.2d 528, 534 (9th Cir. 1990) (“Agretech”). Here, California’s fraudulent transfer statutes are similar in form and substance to the Bankruptcy Code’s fraudulent transfer provisions. United Energy, 944 F.2d at 594. Compare 11 U.S.C. § 548(a)(1) with CAL. CIV. CODE § 3439.04(a) (allowing a transfer to be avoided when the debtor acted with “actual intent to hinder, delay, or defraud” an entity or creditor, or where indicia of constructive fraud are present); compare also 11 U.S.C. § 548(c) with CAL. CIV. CODE §3439.08(a) (providing a safe harbor/good faith exception to transferees who took in good faith and for value). 4 The adversary proceeding from which this case arose was filed before the effective date of the Bankruptcy Abuse Prevention and Consumer Pro- tection Act of 2005, Pub. L. No. 109-8, 199 Stat. 23. That Act extended the one-year period for avoidance of fraudulent transfers under the Code to two years. IN RE AFI HOLDING, INC. 4087 D. Mackenzie’s Cross-Appeal: The Transfer From AFI to Mackenzie was an Actually Fraudulent Transfer Under 548(a)(1)(A). Mackenzie argues that he may be entitled to the entire transfer, including the fictitious gain made on account of his “investment.” The thrust of that argument is that genuine issues of material fact exist as to whether AFI transferred the $89,824.18 to Mackenzie with the “actual intent to hinder, delay, or defraud” an entity or creditor under § 548(a)(1)(A). We do not find that argument persuasive. [3] We allow “a finding of fraudulent intent under section 548(a)(1) [the analog to §3439.04(a)] on the basis of circum- stantial evidence.” Agretech, 916 F.2d at 534. Furthermore, “the mere existence of a Ponzi scheme” is sufficient to estab- lish actual intent under § 548(a)(1) or a state’s equivalent to that section. Id. at 535. Here, Eisenberg’s plea demonstrates the existence of fraudulent intent and a Ponzi scheme, and Mackenzie failed to identify evidence in the record that cre- ated a genuine issue of material fact as to either issue. Eisen- berg admitted the following in his plea: Eisenberg solicited investors for partnerships know- ing that the businesses of AFI, AFHI, and the part- nerships were not profitable from inception. As early as 1996, Eisenberg knew that the factoring business of AFI, AFHI, and the partnerships had already incurred $4 million to $5 million in operating losses and that he was running a ponzi scheme, that is, pay- ing investors purported interest payments with funds raised from other investors, rather than from the profits of the factoring business as Eisenberg repre- sented to investors. (emphasis added). Thus, the record shows Eisenberg’s opera- tion was a Ponzi scheme before Mackenzie “invested” in the partnership, well before the transfers were made from AFI to 4088 IN RE AFI HOLDING, INC. Mackenzie. That by itself is enough to establish the transfers were made with actual fraudulent intent. See Agretech, 916 F.2d at 535. [4] We find Mackenzie’s cross-appeal without merit, and we continue to the issue in the Trustee’s appeal: the applica- tion of the good faith exception under CAL. CIV. CODE §3439.08(a), which is the equivalent to 11 U.S.C. § 548(c). E. The Good Faith Exception Under CAL. CIV. CODE §3439.08(a) is Not Barred as a Matter of Law. We have twice addressed the application of the phrase “rea- sonably equivalent value” related to fraudulent transfer law in the context of a Ponzi scheme.5 The first time was in Agre- tech, where we held that a distribution on account of a part- nership interest relative to an investor’s capital contribution was not “reasonably equivalent value” as defined by the Bankruptcy Code and Hawaii’s analog. Agretech, 916 F.2d at 540. The second was in United Energy, where we held that a transfer in exchange for a proportionally reduced restitution claim was “reasonably equivalent value” as defined by the Bankruptcy Code and California’s analog. United Energy, 944 F.2d at 596. The question before us today is whether the transfer from AFI to Mackenzie was a distribution under Agretech, or a transfer in exchange for a proportionally reduced restitution claim under United Energy. A recitation of the relevant facts of each case is appropriate. 5 The Bankruptcy Appellate Panel (“BAP”) has decided a sister case to the present case. See Elite Pers., Inc. v. Barclay, No. 05-1483 (9th Cir. BAP Oct. 16, 1998). The facts of that case are substantially similar to the facts of the case before this court. The only major differences are the names of the investors, and the amounts invested into the debtor’s limited partnership. We have considered the disposition of that panel and disagree with its conclusion. IN RE AFI HOLDING, INC. 4089 1. Agretech. In Agretech, the debtor, Agretech, made a fraudulent trans- fer to one of its investors Palm Seedlings-A, (“Palm-A”). The bankruptcy trustee for Agretech brought an action against Palm-A, Palm-A’s general partner, and Palm-A’s limited part- ners to avoid transfers from the debtor to Palm-A pursuant to 11 U.S.C. § 544(b) and the applicable Hawaii state statutes. Agretech, 916 F.2d at 534. The district court found that Palm- A was a transferee in bad faith and avoided all of the trans- fers, ruling that the trustee could recover all monies from Palm-A and its limited partners. Id. at 531. On appeal, we agreed with the district court. We concluded that Agretech transferred money to Palm-A by means of a Ponzi scheme, and as a result, HAW. REV. STAT. § 651C- 4(a)(1), Hawaii’s equivalent of 11 U.S.C. § 548(a)(1)(A), applied. Id. at 531. We then analyzed the good faith exception under HAW. REV. STAT. § 651C-8, Hawaii’s equivalent of 11 U.S.C. § 548(c), and concluded also that the transferee, Palm- A, did not take in good faith. As a result, we held that the transfer of funds from Agretech to Palm-A was avoidable because the good faith exception did not apply. Id. at 539-40. The funds, however, had been passed from Palm-A to Palm-A’s limited partners relative to their capital contribu- tions. In analyzing this subsequent transfer, we held that under 11 U.S.C. § 550(a)(1) and (2) and HAW. REV. STAT. § 651C-8 the trustee was permitted to recover the conveyed funds from the initial transferee and any subsequent transfer- ees. We held further that the good faith exception did not apply because limited partnership interests are “equity securi- ties” under 11 U.S.C. § 101(15)6 and not “value,” which is defined in the Code as securing or satisfaction of debt. Id. at 540. 6 Since changed to 11 U.S.C. § 101(16). 4090 IN RE AFI HOLDING, INC. At no time did we analyze the relationship between the lim- ited partners and Palm-A, including any fraud that may or may not have taken place between the general partner and the limited partners. As a result, we addressed only “reasonably equivalent value” in terms of the “equity interest” created by the capital contributions made by the limited partners. We did not address any rescission or restitution rights held by the lim- ited partners. In the end, we allowed the Trustee to avoid the transfers to the limited partners because the transfers were merely a receipt of money on account of the limited partners’ equity interests held because of their capital contributions. 2. United Energy. In United Energy, United Energy Corporation (“UEC”) manufactured and marketed solar modules to the public. From 1982 to 1985, UEC sold 5,323 modules to 4,500 purchasers for $30,000 to $40,000 each. Roughly one third of the pur- chase price was a down payment, and the remaining balance was paid in installments secured by the modules themselves. United Energy, 944 F.2d at 591. At the time of each sale, purchasers were offered a contract called a “Power Purchase Agreement,” to sell the electric and thermal power generated by the modules to Renewable Power Corporation (“RPC”). RPC was owned by the same individual as UEC. The modules only produced a negligible amount of power. However, to attract more purchasers, UEC and RPC made it appear that the business venture was a success. The two companies fabricated fictitious kilowatt hours of produc- tion for each module. RPC then paid module owners for the phony production. Id. After bankruptcy proceedings commenced, the trustee for UEC and RPC filed adversary proceedings against many module purchasers seeking to avoid the fictitious power pay- IN RE AFI HOLDING, INC. 4091 ments. In each of the adversary proceedings, partial summary judgment was granted by the bankruptcy court allowing the trustee to recover the power payments as fraudulent transfers under CAL. CIV. CODE § 3439.04, California’s equivalent of 11 U.S.C. § 548(a)(1)(B). The bankruptcy court concluded as a matter of law that neither UEC nor RPC received reasonably equivalent value, or any value, in property or satisfaction of a present or antecedent debt, in exchange for the power pay- ments paid to the module purchasers. Id. at 592. The BAP consolidated the cases and reversed the bank- ruptcy court. In re United Energy Corp., 102 B.R. 757 (9th Cir. BAP 1989). The BAP held that the power payments given to the defrauded investors would be deemed to partially satisfy or release fraud or restitution claims. The trustee then appealed to this court. We noted, “the only issue for our determination, in connection with the fraudulent transfer question, is whether the investors gave reasonably equivalent value in exchange for the power payments they received.” United Energy, 944 F.2d at 594-95. We then focused directly on the language of 11 U.S.C. § 548(d)(2)(A), which defines “value.” See id. at 595. We found that the investors were duped into buying mod- ules, and because of that, they had claims for rescission and restitution which arose at the time of purchase. Id. at 596. In the end, we did not allow the Trustee to avoid the trans- fers made on account of the power payments because the “in- vestors exchanged reasonably equivalent value when their rights to restitution were proportionately reduced by the power payments they received.” Id. 3. The Trustee’s Arguments that Agretech Should Control Fail. The Trustee uses Agretech as a springboard for two argu- ments. First, he argues that this case, like Agretech, is about 4092 IN RE AFI HOLDING, INC. affirmative defenses to actually fraudulent transfers under CAL. CIV. CODE § 3439.04(a)(1), not about establishing a prima facie claim for constructive fraud under § 3439.04(a)(2). Second, the Trustee argues that both Agre- tech and this case involve a limited partnership, which by def- inition is an “equity security” interest. Although both assertions are correct, neither persuade us that Agretech should control the outcome in this case. The Trustee’s argu- ments are taken one at a time. i) The Distinction Drawn Between “Reasonably Equivalent Value” in the Context of an Affirma- tive Defense and in the Context of Establishing a Prima Facie Claim is a Distinction Without a Dif- ference. The Trustee notes a distinction between Agretech and United Energy. He says that Agretech dealt with affirmative defenses to actually fraudulent transfers, whereas United Energy dealt with the prima facie case for constructively fraudulent transfers. He then argues that, because of the dis- tinction, the case at bar, a case dealing with actually fraudu- lent transfers, should be decided under Agretech. The distinction drawn, however, is of no significance. This is because in both analyses, a determination of “reasonably equivalent value” is necessary. In fact, it is United Energy, not Agretech, that provides the more complete reasonably equivalent value analysis for an initial transferee. The Trustee argues also that “reasonably equivalent value” is irrelevant to § 3439.04(a)(1) given the following quoted language from Agretech: United Energy is distinguishable because the issue before that court concerned payment of an anteced- ent debt under 11 U.S.C. § 548(a)(2), the equivalent of HAW. REV. STAT. §651C-4(a)(2). The present IN RE AFI HOLDING, INC. 4093 issue, in contrast, concerns the avoidance of fraudu- lent transfers under HAW. REV. STAT. 651C-4(a)(1), the equivalent of 11 U.S.C. §548(a)(1), where the entire transfer may be avoided, even if reasonably equivalent value was given . . . . Agretech, 916 F.2d at 538. However, the Trustee does not provide the rest of the paragraph which reads, “so long as the transferor actually intended to hinder, delay or defraud its creditors and the transferee accepted the transfer without good faith.” Id. (emphasis added). [5] For a transfer to be avoided under § 3439.04(a)(2), the equivalent of § 548(a)(1)(B), a trustee must show that the “debtor made the transfer . . . without receiving reasonably equivalent value in exchange for the transfer.” For a transfer to be avoided under § 3439.04(a)(1), the equivalent of § 548(a)(1)(A), a trustee does not have to show that the debtor received less than reasonably equivalent value. The trans- feree, however, may be entitled to keep the transfer if she can show she is “a person who took in good faith and for a rea- sonably equivalent value . . . .” CAL. CIV. CODE § 3439.08 (emphasis added). In Agretech, we properly refused to apply the “reasonably equivalent value” analysis in the prima facie case because the evidence showed actual intent to defraud under § 548(a)(1)(A). Agretech, 916 F.2d at 539-40. We then pro- ceeded to the good faith defense, in which “reasonably equiv- alent value” analysis is proper. Id. at 539-40. However, we never reached the reasonably equivalent value analysis for the initial transfer because the initial transfer failed on the good faith prong of Hawaii’s equivalent to § 548(c). Id. [6] We find no reason, in statute or case law, to treat “rea- sonably equivalent value” differently for each of the Code’s provisions. Both the prima facie case for constructively fraud- ulent transfers under § 3439.04(a)(2), and the affirmative 4094 IN RE AFI HOLDING, INC. defense to actually fraudulent transfers under § 3439.08 require the determination of whether “reasonably equivalent value” was transferred from the transferee to the debtor. ii) Although Limited Partnership Interests are Pres- ent in Agretech and In This Case, Mackenzie was Defrauded by Eisenberg, Creating Rights Differ- ent Than the Rights Held by the Limited Partners in Agretech. The first sentence of the “Limited Partners” section of our Agretech opinion says, “The monies which Palm Seedlings-A allegedly received as a fraudulent conveyance was transferred to its limited partners in respect to their capital contribu- tions.” Agretech, 916 F.2d at 540. The three-paragraph section of that opinion dealing with the limited partnership issue operates from that premise. At no time did we discuss any fraud between Palm-A and the limited partners. See id. As a result, we never reached the question we answered in United Energy—whether a restitution claim qualified as “reasonably equivalent value.” Instead, as noted above, the analytical ful- crum driving our decision in Agretech was the other prong of § 548(c)—whether the initial transferee took in good faith. Id. at 539-540. Our discussion of “reasonably equivalent value” was only relevant in the initial transfer from Agretech to Palm-A in terms of measuring the good faith of Palm-A, the initial trans- feree. Id. at 539. As far as the secondary transfer, from Palm- A to the limited partners, we held that those “distributions were not for value because Palm Seedlings-A made the distri- butions on account of the partnership interests and not on account of debt or property transferred to the partnership in exchange for the distribution.” Id. at 540 (emphasis added). Although Agretech and the case at bar both involve limited partnerships, the posture of the limited partners makes the cases distinguishable. The limited partners in the case at bar IN RE AFI HOLDING, INC. 4095 were defrauded into their limited partnership role by the oper- ator of the Ponzi scheme, creating rights different than the rights held by the limited partners in Agretech. The Trustee’s argument that Agretech should control because both cases involve limited partners overly simplifies the cases and is not persuasive.7 4. United Energy Controls. The district court correctly concluded that the good faith exception is not barred as a matter of law. In reversing the bankruptcy court, the district court held that Mackenzie “ex- changed his partnership interest for a proportionately reduced restitution claim.” Although we agree with the district court in its ultimate conclusion, we wish to clarify further because we recognize the potential effect this case will have on a num- ber of other AFI fraudulent transfer cases. The Trustee argues that the parties did not expressly exchange the restitution claim for the $89,824.18, and instead, AFI transferred the money on account of Mackenzie’s part- nership interest. Although circumstances of the exchange were cloaked in terms of a partnership interest, we delve beyond the “form” to the “substance” of the transaction. See United Energy, 944 F.2d at 596. [7] As noted above, the record demonstrates that Eisen- berg’s operation was a Ponzi scheme before Mackenzie pro- vided his principal “investment,” and thus well before the transfers were made from AFI to Mackenzie. Because of this, Mackenzie acquired a restitution claim at the time he bought into Eisenberg’s Ponzi scheme, just as the investors in United 7 Evidence of the Trustee’s oversimplification of the role the limited partnership interest plays in this case is evident in his citation to In re Riverside-Linden Investment Co., 925 F.2d 320, 323 (9th Cir. 1991) (not- ing only that a legitimate partnership interest is not a claim contemplated by the bankruptcy code). 4096 IN RE AFI HOLDING, INC. Energy acquired a restitution claim at the time they bought their solar modules. Id. at 596. It is this restitution claim, in toto, that Mackenzie exchanged when AFI returned Macken- zie’s principal “investment” amount. If AFI had only pro- vided Mackenzie a portion of his initial investment, as a fictitious gain or otherwise, Mackenzie would be entitled also to keep that amount as an exchange for a proportionate reduc- tion in his restitution claim. See id. Even if Mackenzie did not acquire a restitution claim at the time he bought into AFI, the unique facts of this case still pro- vide us grounds to hold that he exchanged reasonably equiva- lent value for return of his principal “investment.” Mackenzie was not being paid on account of an equity position as were the investors in Agretech. Instead, he was ending his interest in the so-called partnership, creating something more than a simple equity payment in proportion to a capital contribution. Either way we skin this cat, Agretech is distinguishable, and United Energy is the more appropriate precedent. As a result, the district court was correct to determine that the good faith exception is not barred as a matter of law. If, on remand, the bankruptcy court concludes that Mackenzie took the transfer in good faith, Mackenzie is entitled only to the amount he initially provided to AFI. United Energy, 944 F.2d at 595 n.6. The fictitious gain, however, amounting to $16,424.18, is in excess of his restitution claim, and was not returned on account of his withdrawal from the partnership. Therefore the district court was correct to find that the Trustee was entitled to have that amount avoided. E. Prejudgment Interest. We agree with the district court, and conclude that any dis- cussion of the bankruptcy court’s discretion to award prejudg- ment interest is premature. We therefore decline to address that part of the Trustee’s appeal. That issue is left for the IN RE AFI HOLDING, INC. 4097 bankruptcy court once the application of the good faith excep- tion has been adjudicated. III CONCLUSION [8] Mackenzie’s cross-appeal argument that AFI’s transfers were not actually fraudulent fail because Eisenberg’s declara- tion, coupled with our treatment of Ponzi schemes in the con- text of fraudulent transfers, dictates to the contrary. Furthermore, the district court was correct to conclude that the good faith exception to actually fraudulent transfers is not barred as a matter of law because Mackenzie’s right to rescis- sion and restitution were “reasonably equivalent value” as described by United Energy. AFFIRMED and REMANDED.	01-03-2023	10-13-2015
https://www.courtlistener.com/api/rest/v3/opinions/2961159/	Fourth Court of Appeals San Antonio, Texas September 18, 2015 No. 04-15-00337-CR IN RE Abelardo G. GONZALEZ Original Mandamus Proceeding1 ORDER Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice On September 10, 2015, relator filed a second motion for extension of time in which to file a motion for rehearing. This court issued a per curiam opinion denying the mandamus petition in this proceeding as moot on August 5, 2015. Relator’s first motion for extension of time was granted, extending the deadline to file a motion for rehearing to September 14, 2015. The panel has now considered relator’s second motion and the motion is DENIED. It is so ORDERED on September 18, 2015. PER CURIAM ATTESTED TO: ________________________________ Keith E. Hottle Clerk of Court 1 This proceeding arises out of Cause Nos. 2008CRR000657 D1, 2008CRR000662 D1, 2008CRR000665 D1, styled The State of Texas v. Abelardo Gerardo Gonzalez, pending in the 49th Judicial District Court, Webb County, Texas, the Honorable Jose A. Lopez presiding.	01-03-2023	09-21-2015
https://www.courtlistener.com/api/rest/v3/opinions/3006633/	Order Michigan Supreme Court Lansing, Michigan September 30, 2015 Robert P. Young, Jr., Chief Justice Stephen J. Markman Mary Beth Kelly 150888 Brian K. Zahra Bridget M. McCormack David F. Viviano In re Attorney Fees of JOHN W. UJLAKY Richard H. Bernstein, Justices ____________________________________ PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v SC: 150888 COA: 316809 Kent CC: 05-011853-FH GILBERTO DELAROSA, Defendant, and JOHN W. UJLAKY, Appellant. _____________________________________/ On order of the Court, the application for leave to appeal the October 23, 2014 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 30, 2015 a0930 Clerk	01-03-2023	10-02-2015
https://www.courtlistener.com/api/rest/v3/opinions/996794/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-6811 NICHOLAS R. CROWDER, Petitioner - Appellant, versus LAWRENCE KELLEY, State’s Attorney; DAVID GOADE, Sheriff for Allegany County, Maryland, Respondents - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA- 98-1249-S) Submitted: October 8, 1998 Decided: October 26, 1998 Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Nicholas R. Crowder, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district court’s order summarily denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998) for failing to exhaust state remedies. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dis- miss the appeal on the reasoning of the district court. Crowder v. Kelly, No. CA-98-1249-S (D. Md. Apr. 30, 1998).* Appellant’s motion to proceed in forma pauperis is granted. His motion’s for habeas corpus relief and bail pending appeal are denied. We dispense with oral argument because the facts and legal contentions are adequate- ly presented in the materials before the court and argument would not aid the decisional process. DISMISSED * We note that the dismissal of Crowder’s petition in the district court is without prejudice to his refiling the petition once he has exhausted state remedies. 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/4538749/	[Cite as State v. Willey, 2020-Ohio-3172.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CHACE WILLEY : Case No. CT2019-0069 : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2019-0177 JUDGMENT: Affirmed DATE OF JUDGMENT: June 2, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant TAYLOR P. BENNINGTON JAMES A. ANZELMO 27 North Fifth Street 446 Howland Drive P.O. Box 189 Gahanna, OH 43230 Zanesville, OH 43701 Wise, Earle, J. {¶ 1} Defendant-Appellant, Chace Willey, appeals his July 23, 2019 conviction by the Court of Common Pleas of Muskingum County, Ohio. Plaintiff-Appellee is state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On April 4, 2019, the Muskingum County Grand Jury indicted appellant on one count of domestic violence in violation of R.C. 2919.25, a felony of the fourth degree due to a prior offense of domestic violence, and one count of abduction in violation of R.C. 2905.02. Said charges arose from an incident between appellant and L.C., the mother of his child. {¶ 3} A jury trial commenced on June 13, 2019. The jury found appellant guilty of the domestic violence count and not guilty of the abduction count. By entry filed July 23, 2019, the trial court sentenced appellant to eighteen months in prison. {¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 5} "THE TRIAL COURT ERRED BY BARRING WILLEY FROM INTRODUCING EVIDENCE MATERIAL TO HIS DEFENSE, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION." II {¶ 6} "WILLEY'S CONVICTION FOR DOMESTIC VIOLENCE IS BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION." III {¶ 7} "WILLEY'S CONVICTION FOR DOMESTIC VIOLENCE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION." I {¶ 8} In his first assignment of error, appellant claims the trial court erred in barring him from introducing evidence material to his defense. We disagree. {¶ 9} "Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake County, 58 Ohio St. 3d 269, 271, 569 N.E.2d 1056 (1991). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983). {¶ 10} Appellant argues the trial court abused its discretion in not permitting him to present evidence of threatening messages he received from the victim, L.C., via Snapchat. Appellant argues because L.C.'s name was associated with the messages, a sufficient foundation was provided to establish that L.C. sent the messages. {¶ 11} The defense called appellant's brother, Lon Willey, to the stand. Defense counsel asked Lon about any threats made to appellant by L.C. T. at 262. The state objected and the trial court sustained the objection, stating, "You need to lay a better foundation. Anywhere? Anytime?" Id. The trial court informed defense counsel he needed to "prove it was from her and when it was." Id. Defense counsel proceeded to ask questions about Snapchat messages and Lon explained messages sent via the messaging app is associated with a user name. T. at 263-264. The Snapchat message he saw had L.C.'s name on it. T. at 264. Defense counsel asked if the message was threatening and the state objected. T. at 265. The trial court sustained the objection, stating, "You cannot and have not proven it was actually sent by [L.]" as "[a]nybody can grab a phone and use it, or somebody's phone and their app." Id. Lon did not know if the message was actually sent by L.C. Id. {¶ 12} On cross-examination, Lon admitted it was easy to change one's name on Snapchat. T. at 269-270. Lon agreed the message does not show who actually sent it, and the message does not include a number or whose phone it came from. T. at 270. {¶ 13} Evid.R. 901(A) states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Lon testified he did not know if the message was actually sent by L.C. Evidence was not presented linking L.C. to the purported message. Appellant did not meet the low threshold of Evid.R. 901(A) for admissibility. {¶ 14} Upon review, we find the trial court did not abuse its discretion in not permitting appellant to present evidence of threatening messages received via Snapchat. {¶ 15} Assignment of Error I is denied. II, III {¶ 16} In his second and third assignments of error, appellant claims his conviction was against the sufficiency and manifest weight of the evidence. We disagree. {¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). {¶ 18} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. {¶ 19} Appellant was convicted on one count of domestic violence in violation of R.C. 2919.25(A) which states: "No person shall knowingly cause or attempt to cause physical harm to a family or household member." R.C. 2901.01(A)(3) defines "physical harm to persons" as "any injury, illness, or other physiological impairment, regardless of its gravity or duration." {¶ 20} L.C. testified she left work and went to Lon's home to pick up her child she shared with appellant. T. at 165. She was in her vehicle when appellant brought the child out and placed the child in the back seat. T. at 166-167. Appellant then sat in the front passenger seat in order to talk to L.C. about getting back together. T. at 167. She told him she did not want to talk. Id. Appellant became upset and squirted a water bottle everywhere. Id. As she attempted to exit the vehicle, appellant grabbed her hair multiple times, pulling her back. Id. She was scared. T. at 168. She felt she needed to hurry up and get out, so she ran inside Lon's home. Id. Appellant followed her inside and apologized, grabbed a towel, and went back to the vehicle to wipe up the water. Id. L.C. went back out to her vehicle because since appellant had apologized, she assumed he would "let me leave." Id. Outside, appellant got close to L.C.'s face and after she told him she did not want to talk, he pushed her up against Lon's vehicle by the throat "and then I slid down the truck, because I got lightheaded." Id. She started to yell and appellant had her in a "chokehold" and placed his other hand around her mouth so she could not scream. Id. Appellant raised his fist and struck her in the nose, knocking her eyeglasses off. T. at 170-171. Lon came out of his house and told appellant to get off of L.C. T. at 171. Appellant then grabbed his brother by the throat and L.C. ran to her vehicle, called the police, and drove to Love's Truck Stop. T. at 172. L.C. testified her nose was cracked on top, "it had a slit in it, it was bleeding, and it was bruised and swollen" and there were marks on her neck. T. at 174; State's Exhibits 3 through 7. {¶ 21} Muskingum County Sheriff's Deputy Adam Swope was dispatched to the truck stop. T. at 214-215. He testified L.C. was "upset, distraught. She was bleeding from her nose. Appeared to be kind of rattled." T. at 215. Her nose was swollen a little bit, she was crying, her mascara was running down her face, her pants had some mud on them below the knees, and she "looked extremely upset, scared." T. at 218. Deputy Swope took photographs of L.C.'s injuries. T. at 219; State's Exhibits 3 through 7. He testified the injuries depicted in the photographs were consistent with the story L.C. had told him of the incident. T. at 223-224. Deputy Swope then went to the scene of the incident. T. at 224. He found L.C.'s eyeglasses in the driveway, broken. T. at 226-227. Appellant told the deputy he grabbed L.C.'s arm to speak with her and "she just fell to the ground." T. at 227. He denied striking her in the nose and grabbing her throat and her hair. T. at 228. {¶ 22} At the conclusion of the state's case, appellant stipulated to a prior conviction for domestic violence. T. at 249; State's Exhibit 1. The incident involved his mother. T. at 310. {¶ 23} Appellant called his brother Lon to the stand. Lon testified he heard appellant and L.C. arguing and when he went outside, he saw both of them standing beside his truck. T. at 256. He did not see anything physical between them. T. at 257. He did not see any blood on L.C. or anything wrong with her nose. T. at 257-258. He told his brother "to step back and let her leave, get away from her" because L.C. "always threatened to call the cops on him for this and that." T. at 258. Appellant and L.C. were crying. T. at 261. Appellant never grabbed Lon's throat. T. at 274. {¶ 24} Lon's girlfriend, Rae Shaw, testified she heard appellant and L.C. arguing and when she went outside, Lon was holding appellant by his shoulders. T. at 280-281. She did not see any injuries on L.C. T. at 281-282. She heard Lon tell appellant to "let her go," "just calming him down." T. at 282-283. She did not hear any physical confrontation. T. at 289. {¶ 25} Appellant testified prior to L.C.'s arrival, they were communicating back and forth over the phone and L.C. threatened to get a restraining order and keep their child away from him. T. at 296-297. This upset him a little bit. T. at 297. L.C. arrived and appellant was putting the car seat back together after having cleaned it. T. at 298. Appellant placed the child in L.C.'s back seat and then sat in the passenger seat. Id. He engaged in a conversation with her and she "sat there and listened." T. at 299. He admitted to grabbing her water bottle and squeezing it, "but it wasn't deliberately at her or anything. I just done it being arrogant." Id. He never touched her hair. T. at 301. L.C. got mad and appellant apologized, and both of them went into the house so he could grab some rags to wipe up the water. T. at 300. As they left to return to the vehicle, L.C. was in front of appellant and appellant "grabbed her shoulder," not aggressively, and said, "just talk to me real quick." Id. L.C. spun around and "dropped to the ground. She's done this many times before." Id. "She just kind of went into hysterics, kind of - - just kind of like yelling and crying. She's done it many times before in the past." T. at 303. It lasted about three minutes. Id. At that point, Lon came outside. Id. Appellant helped L.C. off the ground and told her to go. Id. Appellant did not see any blood on her or any injuries at all. T. at 304. L.C. got into her vehicle and drove away. T. at 304-305. Appellant never grabbed his brother by the neck. T. at 305. He had no idea how L.C. got a bloody nose, but she was prone to nose bleeds. T. at 310-311. He denied ever hitting L.C. T. at 315. {¶ 26} The jury heard conflicting testimony. The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St. 3d 182, 552 N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997). The jury chose to believe L.C.'s version of events. The photographs taken by Deputy Swope depicted her injuries and were consistent with her report of the incident, and her broken eyeglasses were found at the scene. {¶ 27} Upon review, we find sufficient evidence, if believed, to support the conviction for domestic violence. We do not find any manifest miscarriage of justice. {¶ 28} Assignments of Error II and III are denied. {¶ 29} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed. By Wise, Earle, J. Gwin, P.J. and Delaney, J. concur. EEW/db	01-03-2023	06-04-2020
https://www.courtlistener.com/api/rest/v3/opinions/2884755/	NO. 07-99-0223-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 30, 1999 ______________________________ BRIAN MILLSAP, Appellant V. SHOW TRUCKS USA, INC., Appellee _________________________________ FROM THE 86TH DISTRICT COURT OF KAUFMAN COUNTY; NO. 53435; HON. GLEN M. ASHWORTH, PRESIDING _______________________________ BOYD, C.J., and QUINN and REAVIS, JJ. Following appellant’s failure to timely file a brief in this cause, we notified him on July 21, 1999 that his appeal would be dismissed, pursuant to Texas Rule of Appellate Procedure 42.3, unless he responded within ten days and showed good cause for continuing the appeal. Because of a clerical error in the July 21 notice, we again notified appellant to show good cause as to why the appeal should not be dismissed. Appellant’s response was due August 13, 1999. To date, appellant has failed to respond. We accordingly dismiss this appeal for want of prosecution pursuant to Texas Rules of Appellate Procedure 38.8(a)(1) and 42.3(b) and (c). Brian Quinn Justice Do not publish.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/3230594/	Appellant was indicted, tried, and convicted for an assault and battery upon one Henry Day. The jury assessed no fine, its verdict being, "We the jury find the defendant guilty as charged in the indictment." Such verdict is permissible, for the statute is, when an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine, but if, in their judgment, the defendant should only be punished in some other mode, may in such case only find him guilty, and leave the imposition of the punishment to the court. Section 5286, Code 1923. The verdict rendered by the jury was sufficient to support the judgment of the court imposing hard labor for the county, the sentence pronounced and entered being within the limitations provided by the statute. Section 3299, Code 1923. We discover no reversible error of any nature in the record. The judgment of conviction, appealed from, will stand affirmed. Affirmed. *Page 305	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3453504/	Affirming. Appellant brought this suit against appellee to recover $135,000.00, his commission as a real estate agent for selling coal properties in Bell county, Kentucky, for $1,350.000.00. The allegations of the petition were controverted, and at the conclusion of the evidence the court instructed the jury peremptorily to find for the defendant. The plaintiff appeals. The facts are these: The Louisville Property Company made a voluntary assignment to the United States Trust Company. It owned a large amount of land in Page 375 Kentucky, Tennessee, Alabama, etc. The assignee was authorized to sell the property and settle the affairs of the company, but one of the conditions of the writing was this: "(3) It is contemplated that the trust company will, through its own organization and as a part of the service hereinabove mentioned, look after the finding of purchasers and the negotiation of sales of property that shall come to its hands under said deed; but whenever in the judgment of the trustee it is necessary that the services of outside real estate agents or brokers be secured to aid in the disposition of any particular parcel or parcels of property, they are authorized to make such employments at the expense of the estate, provided the facts connected therewith and the proposed compensation to be paid are first submitted to the counsel of the trust company, hereinafter named, or their successors, and they approve in writing such employments and the terms thereof." The trust company employed Atwood R. Martin at a salary to make a prospectus of the property. This he did in three or four months, and his employment at a salary terminated on March 31, 1920. After this he kept his office on the second floor of the trust company's building as a real estate agent, but he was about the office of the trust company every day at times. On August 4, 1920, R.T. Irvine wrote to the trust company to make an engagement in regard to the land in controversy. The company wrote him that Mr. Veech, the president of the company, was away and would be back about September 1. A number of letters and telegrams passed between Irvine and the trust company, until September 25, when Irvine wired Veech, "Can I see you in your office Monday?" Veech replied that he would be glad to see him. On Monday, September 27, Irvine went from his home in another state to Louisville to the office of the trust company to see Mr Veech. He had had no communication with Mr. Martin. When he got to the trust company's office Mr. Veech was busy and while he was waiting for Mr. Veech he met Mr. Martin, who took him up to his office and talked with him about the property. This was the first communication that Martin had with Irvine in any way. The next day Martin wrote Veech a letter telling him what had occurred between him and Irvine, and concluding his Page 376 letter with these words: "I hope to secure a definite proposition from him in the near future." Irvine did not see Veech on that visit. He and Martin had some correspondence until November 1, 1920, when Martin wrote him a proposition to sell him 19,000 acres for $900,000.00 cash if accepted on or before January 1, 1921. Thus things ran along. Irvine did not accept the proposition, and on January 11 wrote Martin that owing to the severe pinch in money matters he had been unable to put the deal through. Martin, on January 12, wrote Irvine urging him to close the matter, saying that he had other parties in view. Some correspondence ensued between them until February 28, when Irvine wrote Martin that it was impossible for him to do much during the present financial depression. There all negotiations between Irvine and Martin ceased. Nothing more was done between them. In the following July lrvine and Veech had a conference with Mr. Helm Bruce, the attorney for the Louisville Property Company. Nothing was concluded, but Bruce suggested that the L. N. Railroad Company had a large debt against the Louisville Property Company and perhaps it could be arranged for the railroad company to take the bonds and thus relieve Irvine of the necessity of raising the price in cash. Thus matters stood until early in December, 1921, when Irvine came to Veech and asked him if he was in a position to negotiate for the sale of the Bell county property. Veech told him he was. About ten days later Irvine came back to Veech's office and he and Veech then agreed on a sale of 29,000 acres for $1,350.000.00, of which $50,000.00 was paid in cash. Notes for $50,000.00 each were executed, payable at intervals of six months, and the balance of the purchase money, $1,000,000.00, was to be paid in bonds maturing in fifteen years, the railroad company having agreed to take the bonds. The sale was then closed between Veech and Irvine, Martin having no part in the transaction after February 28, 1920. The trust company adopted the policy of allowing any real estate agent to sell any of the property in its hands as assignee, provided the proposition which he had from the purchaser and the proposed compensation to be paid him were first submitted to the counsel of the trust company and approved in writing by the counsel, who were Messrs. Helm Bruce and Clayton Blakey. Martin sold three or four pieces of property in this way and received his commission. He well knew the terms of the *Page 377 contract under which the trust company was selling the property. He at no time received a proposition in writing from Irvine. No proposition to him for a purchase of the property by Irvine was ever submitted to the counsel or approved by them in writing. The proposition which he made to Irvine was never accepted. The contract which was closed was entirely different from the one which he proposed to Irvine. He did not bring the parties together. He had no communication of any kind with Irvine before Irvine began his correspondence with the trust company. The rule is well settled that one who deals with an agent or a trustee, having notice of the limitations of his authority, is bound by these limitations. Martin well knew the limitations upon the authority of the trustee. He at no time had the counsel's approval in writing of his employment, or of any contract to pay him commission. To sustain Martin's claim here against the trust fund would be to entirely ignore the terms of the written contract. The purpose of the stipulation was to prevent the trust estate being involved in litigation over the claims of real estate agents for commissions for the sale of the property. The provision that employment should only be made at the expense of the estate with the written consent of the counsel, was a reasonable provision to this end, and no employment having been made, as provided by the contract, Martin is without remedy. 39 Cyc. 562-563, 26 Rawle C. L. p. 1372. Judgment affirmed. Judge Logan not sitting.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3453505/	Reversing. Birch Marcum and his wife, Nancy Marcum, were the joint owners of 80 acres of land in Martin county. Nancy Marcum died intestate in 1926, leaving her husband and ten children. On June 8, 1935, Birch Marcum and eight of the children, together with the spouses of those who were married, executed an oil and gas lease on the 80-acre tract of land to the Warfield Natural Gas Company. On September 13, 1935, Rebecca Marcum Triplett, one of the children who had not signed the lease, and her husband, Andy Triplett, conveyed to the Warfield Natural Gas Company their undivided interest in the oil and gas under the tract of land. On March 17, 1941, Norma Marcum Hammond, one of the ten children, and her husband, Gordon Hammond, ratified and approved the lease theretofore executed. Norma Hammond was under 21 years of age when the lease was executed in 1935. On September 18, 1935, a gas well was completed on the land, and the lessee paid the royalty of $300 a year until March 5, 1941, as follows: To Birch Marcum one-half thereof, or $150 a year, and to the ten children of Birch Marcum and Nancy Marcum, or their grantees, the remaining one-half. On March 5, 1941, Birch Marcum notified the lessee that he owned a curtesy interest in one-half of the land, and demanded one-third of the royalty due on his deceased wife's part of the land, or $50 a year. Thereafter the lessee retained $50 out of the annual royalty, but refused to pay it to Birch Marcum. On July 30, 1942, Birch Marcum brought this action against the Warfield Natural Gas Company to recover one-third of the royalties on that portion of the land owned by Nancy Marcum at the time of her death. The children of Nancy Marcum and the assignees of those who had sold their interests also were made defendants. The lessee filed an answer and cross-petition in which it averred that the plaintiff, the surviving husband of Nancy Marcum, had no interest in or right to royalties accruing on that part of the land owned by Nancy Marcum Page 815 at the time of her death since the lease thereon was executed by her heirs after her death. In its cross-petition it asked for a judgment against the children of Nancy Marcum in the event it should be held that the plaintiff was entitled to any part of the royalties under the lease of the Nancy Marcum portion of the lands. The chancellor adjudged that the plaintiff, Birch Marcum, was entitled to one-third of the royalties from the Nancy Marcum land under the lease of June 5, 1935, and that he "recover from the defendant, Warfield Natural Gas Company the sum of Fifty Dollars per year from September 18, 1935, and so long as the well mentioned in this action is a producing well and the lease above mentioned is in full force and effect, according to the terms of said lease, and during the life of the said plaintiff." The Warfield Natural Gas Company was given a judgment on its cross-petition against the other defendants. The company has appealed, and seeks a reversal of the judgment on two grounds: (1) Appellee's interest in the royalties on the one-half interest owned by Nancy Marcum at the time of her death is not absolute but is a life interest, and he is entitled only to the use of one-third thereof during his natural life; and (2) appellee is estopped from claiming any part of the royalties on the Nancy Marcum interest prior to the time he notified appellant of his claim. The rule in this and practically all other jurisdictions is that where property is held for life and after the life tenancy begins there is development not authorized under any lease or authority in existence at the beginning of the life tenancy, the life tenant is only entitled to interest on the royalties during the continuance of the life estate, and the corpus of the royalties will go to those who take as remaindermen. Mills v. Mills, 275 Ky. 431, 121 S.W.2d 962; Cook v. Cook's Adm'r,261 Ky. 501, 88 S.W.2d 27; Collins v. LeMaster's Adm'r,232 Ky. 188, 22 S.W.2d 567; Meredith v. Meredith, 193 Ky. 192,235 S.W. 757; 33 Am. Jur., Life Estates, Remainders, and Reversions, secs. 329 and 330; Annotation in 43 A.L.R. 811. In Collins v. LeMaster's Adm'r, supra, it was held that the widow and remaindermen may join in an oil and gas lease and agree orally, or in writing, how the royalties are to be apportioned among them, but in the absence of such an agreement such an apportionment must be made according to law. It was Page 816 also held that where mines are opened or wells drilled by the widow and remaindermen after the death of the owner who left no will or contract controlling the matter, the widow is entitled only to a life estate in one-third of the accruing royalties. The same rule applies, of course, to the husband's interest in his deceased wife's real estate. In Volume 1 of the Restatement of the Law of Property, Comment b, under sec. 119, reads: "When the owner of a possessory estate for life, not being privileged to make the removal on his own behalf, joins with the owner or owners of the subsequent interests in permitting the removal of timber, mineral, or oil deposits, from the land as to which such estate exists, then, in the absence of a specific agreement, otherwise fixing the respective rights of the parties, such owner of the estate for life receives as issues and profits under the rule stated in this Section, the use for his life of all sums paid for such permission." It follows from what has been said that the chancellor erred in adjudging the appellee absolutely one-third of the royalties. We find no merit in appellant's claim of estoppel, which is based upon the theory that appellee remained silent when it was his duty to speak. As defined in 19 Am. Jur., Estoppel, sec. 34: "Equitable estoppel or estoppel in pais is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion were allowed." Here the appellant was not ignorant of the true facts, and there was no fraud, culpable negligence or misleading conduct on the part of the appellee which would raise an estoppel and preclude him from asserting his rights. As said in Cox v. Simmerman, 243 Ky. 474, 48 S.W.2d 1078, 1080: "* * * where the basis for a claimed estoppel is silence or omission to give notice, *Page 817 the party relying thereon must have been without actual knowledge of the true state of facts, and without means of acquiring such knowledge, as by reference to public records." The judgment is reversed, with directions to enter a judgment in conformity herewith.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3063544/	[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-16062 APRIL 15, 2009 Non-Argument Calendar THOMAS K. KAHN CLERK D. C. Docket No. 05-02322-CV-AR-M DELORIS BURROUGHS, by and through her next friend Richard Burroughs with Power of Attorney, Plaintiff-Appellant, versus BROADSPIRE, f.k.a. Kemper Insurance Company, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Alabama (April 15, 2009) Before DUBINA, BLACK and FAY, Circuit Judges. PER CURIAM: This is not the first time we have considered an appeal of this case. Appellant Deloris Burroughs (“Burroughs”), originally brought an action in 2001 against BellSouth Telecommunications, Inc. and the BellSouth Long Term Disability Plan for Salaried Employees (“LTD Plan”), challenging the denial of benefits under such employee welfare benefit plan. The district court granted summary judgment in favor of Burroughs and the defendants appealed. A panel of this court reversed the district court’s judgment and remanded the case for entry of judgment for the defendants. See Burroughs v. Bellsouth Telecommunications, 248 Fed. App. 64 (11th Cir. 2007), (“Burroughs I”). Although challenging the same denial of benefits as in Burroughs I, and alleging that the same errors occurred, Burroughs characterizes her claims in the present case as breach of fiduciary duties. Broadspire moved to dismiss and the district court granted the motion. Burroughs then perfected this appeal on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989). “This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding.” Id. at 326–327. In evaluating a motion to dismiss, the court should disregard the legal conclusions drawn from the facts, as well as conclusory 2 allegations and unwarranted deductions of fact, to determine whether the complaint states a claim upon which relief may be granted. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246, 1253 (11th Cir. 2005). After reviewing the record and reading the parties briefs, we see no reversible error. Burroughs’ claims in the instant case are virtually identical to her criticisms of Broadspire in Burroughs I. Burroughs cannot state a claim for breach of fiduciary duties where she was able to assert a claim for an appropriate remedy for the denial of benefits under ERISA § 502(a)(1)(B). See Varity Corp. v. Howe, 516 U.S. 489 (1996). We have held multiple times, under these circumstances, a breach of fiduciary duty claim cannot be asserted. See Ogden v. Blue Bell Creameries, U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003); Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084 (11th Cir. 1999). Alternatively, under both claim and issue preclusion, our earlier decision in Burroughs I holding that Broadspire was neither arbitrary nor capricious precludes Burroughs from continuing to assert claims against Broadspire based on the same 2004 benefit decision. Accordingly, for the aforementioned reasons, we affirm the judgment of dismissal. AFFIRMED. 3	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3063545/	[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-13474 ELEVENTH CIRCUIT APRIL 15, 2009 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK D. C. Docket No. 07-14205-CV-KMM DAVID KELLY BREWSTER, Petitioner-Appellant, versus DEPARTMENT OF CORRECTIONS, Walter A. McNeil, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 15, 2009) Before DUBINA, MARCUS and FAY, Circuit Judges. PER CURIAM: Appellant David Kelly Brewster, a Florida state prisoner proceeding pro se, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, raising numerous claims for relief. However, we granted Brewster’s motion for a certificate of appealability on the following issue only: “Whether the district court violated Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), when it failed to address [Brewster’s] claim that his due process rights were violated where the evidence presented at trial did not support his conviction for bank fraud.” “We review de novo the district court’s denial of habeas relief under 28 U.S.C. § 2254.” Gamble v. Sec’y, Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). Out of “deep concern over the piecemeal litigation of federal habeas petitions,” in Clisby we exercised our supervisory authority over the district courts and instructed them to resolve all claims for relief raised in a petition for habeas corpus relief, regardless of whether habeas relief is granted or denied. 960 F.2d at 935-36. The procedures for handling habeas petitions were likewise designed to minimize disruption of the state criminal justice system. Id. at 935. A “claim for relief” is defined as “any allegation of a constitutional violation.” Id. at 936. When a district court fails to resolve all of the claims in a habeas petition, we “will vacate the district court’s judgment without prejudice and remand the case for consideration of all remaining claims.” Id. at 938. 2 Because the record here demonstrates that the district court failed to resolve Brewster’s claim that his constitutional due process rights were violated because the prosecution failed to prove all the elements of the charged offense, the district court’s judgment violated Clisby. Accordingly, we vacate the district court’s judgment and remand Brewster’s due process claim for consideration by the district court. VACATED and REMANDED. 3	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/3063550/	[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT APRIL 15, 2009 No. 08-16570 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 06-80081-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERRY SHULER, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 15, 2009) Before CARNES, HULL and WILSON, Circuit Judges. PER CURIAM: Jerry Shuler, a federal prisoner convicted of crack cocaine offenses, appeals the district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for a reduced sentence. After review, we affirm.1 Under § 3582(c)(2), a district court may modify an already incarcerated defendant’s term of imprisonment if the defendant’s sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2). However, “[w]here a retroactively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his or her sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, 129 S. Ct. 965 (2009); see also U.S.S.G. § 1B1.10(a)(2)(B). Thus, a reduction is not authorized if an applicable amendment does not lower a defendant’s applicable guidelines range “because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10 cmt. n.1(A). Shuler’s § 3582(c)(2) motion was based on Amendment 706 to the Sentencing Guidelines, which reduced the base offense levels in U.S.S.G. § 2D1.1(c) applicable to crack cocaine offenses. The district court did not err in concluding that Shuler was ineligible for a § 3582(c)(2) reduction. At his original sentencing, Shuler’s initial guidelines range, 1 “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). 2 based on § 2D1.1(c)’s drug quantity table, was 97 to 121 months’ imprisonment. However, because Shuler was subject to a statutory mandatory minimum sentence of 120 months’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A), Shuler’s guidelines range became 120 to 121 months. See U.S.S.G. § 5G1.1(c). The district court imposed the statutory mandatory minimum 120-month sentence. Shuler’s 120-month sentence was not based on the amount of crack cocaine attributed to him under § 2D1.1(c) to calculate his base offense level, but rather upon the statutory mandatory minimum. See United States v. Williams, 549 F.3d 1337, 1339-40 (11th Cir. 2008) (explaining that a defendant sentenced to a statutory mandatory minimum sentence is not eligible for a sentence reduction based on Amendment 706 because Amendment 706 had no effect on the statutory mandatory minimum sentence).2 Thus, even though Amendment 706 lowered the base offense level for Shuler’s crack cocaine offense by two levels, it did not lower Shuler’s ultimate sentencing range by virtue of the statutory mandatory minimum. Because Amendment 706 had no effect on Shuler’s sentencing range, Shuler was not eligible for a § 3582(c)(2) sentence reduction. AFFIRMED. 2 Shuler concedes that Williams is binding precedent, but raises this issue to preserve it for further review. See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (explaining that we are bound by our prior panel precedent unless it is overturned by the Supreme Court or this Court sitting en banc). 3	01-03-2023	10-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/8540625/	Opinión disidente emitida por el Juez Presidente Señor Hernández Denton, a la cual se une la Jueza Asociada Señora Fiol Matta. Al igual que las compañeras Juezas Asociadas Señoras Fiol Matta y Rodríguez Rodríguez, y el compañero Juez Asociado Señor Estrella Martínez, disentimos de la deci-sión de este Tribunal de desestimar la acción incoada por el Partido Independentista Puertorriqueño (P.I.P.). Con la decisión que hoy se emite, una mayoría de este Tribunal flexibiliza el proceso legislativo de aprobar en-miendas constitucionales y, con ello, deja atrás una inter-49pretación rigurosa que de nuestra Constitución hemos he-cho a través de los años para garantizar su estabilidad de generación en generación. Con esta actuación, validan la propuesta de unas enmiendas a nuestra Ley Suprema que cambian el ordenamiento constitucional actual, que le per-mite a las minorías tener una mayor posibilidad de estar representadas adecuadamente en la Asamblea Legislativa. En ese sentido, disentimos de la opinión mayoritaria por entender que la Resolución Concurrente del Senado Núm. 35, 16ta Asamblea Legislativa, 3ra Sesión Ordina-ria, no se aprobó por dos terceras partes del número total de los miembros de que se compone cada cámara, por lo que es nula. Por otro lado, la Resolución Concurrente del Senado Núm. 60, 16ta Asamblea Legislativa, 7ma Sesión Ordinaria, contiene más de un asunto y las breves expre-siones incluidas sobre la Resolución Concurrente del Se-nado Núm. 35 no validan un acto nulo ab initio. Esas me-didas violan la Constitución del Estado Libre Asociado de Puerto Rico (Constitución), el Reglamento del Senado de 2009 y principios jurídicos fundamentales. Del mismo modo, esto constituye un precedente peligroso que permite que en un futuro otras mayorías modifiquen fácilmente la Constitución hasta hacerla inoperante. I El 28 de septiembre de 2011, la Cámara de Represen-tantes de Puerto Rico (Cámara de Representantes) aprobó la Resolución Concurrente del Senado Núm. 35, 16ta Asamblea Legislativa, 3ra Sesión Ordinaria, en una vota-ción de treinta y siete (37) votos a favor, dieciséis (16) votos en contra y orna (1) ausencia. Posteriormente, el 10 de oc-tubre de 2011, el Senado de Puerto Rico (Senado) aprobó la misma resolución, en una votación de veinte (20) votos a favor, ocho (8) votos en contra, una (1) ausencia y dos (2) vacantes por renuncia previa del senador para el distrito de Guayama, Hon. Antonio Soto, y el senador para el dis-50trito de San Juan, Hon. Roberto Arango. Es decir, la Reso-lución Concurrente del Senado Núm. 35 contó con el voto afirmativo del 64.52 por ciento del total de los treinta y un (31) escaños que componen el Senado, o sea, con menos de las dos terceras partes (66.66%) del total de escaños que componen esa cámara. El Tribunal de Primera Instancia tomó conocimiento judicial de este hecho.(1) Así las cosas, el 9 de enero de 2012, el Gobernador de Puerto Rico, Hon. Luis G. Fortuño Burset, firmó la Ley 12-2012 conocida como la Ley Habilitadora del Referén-dum sobre la Reforma Legislativa. El Art. 2 de ese estatuto indica que la fecha de celebración del Referéndum Especial sería el 19 de agosto de 2012. Posteriormente, el 10 de mayo de 2012, el Senado aprobó la Resolución Concurrente del Senado Núm. 60, que también propone enmendar la Constitución para per-mitir que los jueces puedan denegarle a una persona acu-sada de ciertos tipos de asesinato el derecho a permanecer en libertad bajo fianza. Igualmente, la Cámara de Repre-sentantes aprobó esa resolución concurrente. Esa medida establece que la votación para esta en-mienda se hará conjuntamente con la votación de en-mienda de la reforma legislativa. En específico, la versión final aprobada por la Asamblea Legislativa solo cambió en lo sustantivo la Sección 2.(2) El texto final aprobado esta-blece: Sección 2.— La enmienda propuesta en esta Resolución Concurrente será sometida para su aprobación o rechazo a los 51electores capacitados en Puerto Rico en un Referéndum Especial a celebrarse el 19 de agosto de 2012, conjunto con la con-sulta para enmendar la Constitución a los fines de cambiar la composición de la Asamblea Legislativa, propuesta en la Reso-lución Concurrente del Senado Núm. 35, según la voluntad expresada por esta Asamblea Legislativa con la aprobación de la misma y la cual reiteramos en la presente Resolución Concurrente. La Comisión Estatal de Elecciones deberá publi-car la propuesta de enmienda constitucional con tres (3) meses de antelación a la fecha del referéndum. La Comisión Estatal de Elecciones desarrollará una campaña de orientación du-rante los sesenta (60) días anteriores a la fecha del Referéndum. (Enfasis suplido).(3) A esos efectos, el 14 de mayo de 2012, el Gobernador firmó la Ley Habilitadora, Ley Núm. 84-2012, para hacer viable el referéndum de esta enmienda. Esta ordena que esa consulta se haga el mismo día que el referéndum pro-puesto por la Resolución Concurrente del Senado Núm. 35 y la Ley 12-2012. Tras varios trámites procesales, certificamos el recurso, celebramos una vista oral el miércoles 27 de junio de 2012, y con la comparecencia de las partes, este Tribunal ha re-suelto declarar constitucionalmente válidas las acciones le-gislativas en cuestión. Por los fundamentos que se exponen a continuación, disentimos. II A. Concurrimos con la mayoría de este Tribunal en que el presente caso es justiciable. En síntesis, el P.I.P. demostró que tiene legitimación activa para ejercitar la acción en este caso. Además, tiene legitimación activa para representar a sus miembros, especialmente cuando las actuaciones im-pugnadas hacen onerosa o afectan negativamente y sustan-cialmente el potencial de un partido minoritario de tener representación legislativa, o lo coloca en una situación de 52inferioridad. P.P.D. v. Gobernador I, 139 D.P.R. 643 (1995); P.R.P. v. E.L.A., 115 D.P.R. 631 (1984); P.P.D. v. Peña Clós, 140 D.P.R. 779 (1996). Además, entendemos que la acción no presenta una cuestión política que viole la separación de poderes. Asimismo, coincidimos con la mayoría en que, al mo-mento de aprobar la Resolución Concurrente Núm. 35, el Senado incumplió con el requisito constitucional de dos terceras partes. Sin embargo, disentimos en cuanto a los efectos de ese incumplimiento y la posibilidad de subsanarlo. Nuestra po-sición es que: (1) el incumplimiento con el requisito de dos terceras partes acarrea la nulidad de la Resolución Concurrente Núm. 35 y, por consiguiente, de su Ley Habilitadora, y (2) la Resolución Concurrente Núm. 60 no es un vehículo válido para subsanar el defecto de la primera, entre otras razones, porque contiene más de un asunto. Exponemos nuestros fundamentos a continuación. Inicialmente, como intérpretes máximos de la Constitu-ción, debemos expresarnos por primera vez sobre el signi-ficado de la frase “dos terceras partes del número total de los miembros de que se compone cada cámara” expuesto en el Art. VII, Sec. 1 de la Constitución, que dispone, en lo pertinente: La Asamblea Legislativa podrá proponer enmiendas a esta Constitución mediante resolución concurrente que se apruebe por no menos de dos terceras partes del número total de los miembros de que se compone cada cámara. Toda proposición de enmienda se someterá a los electores capacitados en refe-réndum especial, pero la Asamblea Legislativa podrá, siempre que la resolución concurrente se apruebe por no menos de tres cuartas partes del número total de los miembros de que se compone cada cámara, disponer que el referéndum se celebre al mismo tiempo que la elección general siguiente. (Énfasis suplido).(4) 53Asimismo, nuestra Constitución fija la composición de ambas cámaras. A saber, el Art. III, Sec. 2, expone, en lo pertinente: El Senado se compondrá de veintisiete Senadores y la Cá-mara de Representantes de cincuenta y un Representantes, excepto cuando dicha composición resultare aumentada a vir-tud de lo que se dispone en la Sección 7 de este Artículo. (Énfasis suplido). Art. III, Sec. 2, Const. E.L.A., L.P.R.A., Tomo 1, ed. 2008, pág. 382. La sección 7 a la que se hace referencia en la disposición citada se refiere a la representación de las minorías.(5) Por esa sección, actualmente, la Cámara de Representantes está compuesta por cincuenta y cuatro (54) miembros y el Senado por treinta y un (31) miembros. Esta composición así delimitada garantiza “la expresión de la voluntad del pueblo en el funcionamiento del poder legislativo”. (6) Ese principio no puede sostenerse sin asegu-rarnos de que se proceda para una representación ade-cuada y justa, tanto en cuanto a los factores de geografía y población como a los de la diversidad de criterios e ideolo-gías que informan el pensamiento público. (7) Al interpretar ese lenguaje, debemos preguntarnos si al decir dos terceras partes del número total de los miembros que componen cada cámara los constituyentes quisieron referirse a la totalidad de los miembros que componen cada una de las cámaras, independientemente de las ausencias o vacantes que existan al momento de la votación. Es decir, si las vacantes afectan la composición total de la Asamblea Legislativa. Para comprender el significado de esa frase, pasemos a examinar el Diario de Sesiones de la Conven-ción Constituyente. 54En el debate entre los miembros de la Convención, en el contexto de enmiendas a la Constitución, el delegado Sr. José Trías Monge aclaró que ... hemos considerado conveniente el que se requiera una vo-tación más alta, no menos de tres cuartas partes de los miem-bros que componen cada cámara, para así hacer un poco más difícil el someter las enmiendas propuestas a una elección general .... Y eso justificaría, a nuestro modo de ver, el que se requiera una votación más alta. 2 Diario de Sesiones de la Convención Constituyente 1365 (1951). Asimismo, al enfrentar el mismo asunto, el delegado Sr. Miguel García Méndez sugirió una enmienda para que, al igual que una aprobación de la resolución concurrente por dos terceras partes del número total de miembros de cada cámara, la enmienda constitucional debía contar con dos terceras partes o más de los electores que voten. Diario de Sesiones, supra, Vol. 3, págs. 1828-1829. No obstante, el delegado Trías Monge explicó que ... el punto fundamental es en cuanto a las garantías de limi-tación a la etapa de iniciativa [en la aprobación de la resolu-ción concurrente] de la enmienda a la constitución. Ahí debi-damente reconocemos, como se reconoce en 47 constituciones de los estados, que para iniciar una enmienda la Asamblea Legislativa, únicamente podrá hacerse por no menos de dos terceras partes absolutas de los miembros que componen las cámaras legislativas. (Enfasis suplido). Id., pág. 1829. Así debatida, la enmienda sugerida por el delegado Gar-cía Méndez fue derrotada y prevaleció la postura del dele-gado Trías Monge. Igualmente, el debate de la Convención tuvo incidencias similares al referirse a las mayorías abso-lutas establecidas en la Constitución. En efecto, cuando se menciona el total de miembros elegidos se refiere a la com-posición total de cada cuerpo.(8) 55Del mismo modo, de las discusiones en la Convención Constituyente se refleja que las vacantes podrían ser el producto de la muerte, renuncia o expulsión de un miem-bro de la Asamblea Legislativa.(9) Como resultado, la Cons-titución provee un procedimiento para llenar las vacantes, dejando la titularidad del escaño inicialmente sobre el par-tido al cual pertenecía el legislador antes de producirse.(10) No se elimina ese escaño. O sea, la vacante mantiene un escaño vacío en la composición del cuerpo hasta que sea llenada oficialmente. Además, en diferentes instancias, este Tribunal ha analizado que las vacantes no tienen el efecto de disminuir la composición total de un cuerpo cons-titucional para efectos de las votaciones que requieren ma-yoría absoluta. En específico, ya hemos analizado el texto sobre la com-posición del número total de miembros con respecto a la forma como el Tribunal Supremo puede declarar una ley inconstitucional. Ello, pues la See. 4 del Art. V de la Cons-titución establece que “[n]inguna ley se declarará inconsti-tucional a no ser por una mayoría del número total de los jueces de que esté compuesto el tribunal de acuerdo con esta Constitución o con la ley”.(11) En ese contexto, para interpretar el mismo lenguaje que ahora está en controversia, dijimos que “requiere mayoría absoluta de sus miembros indistintamente de que hubie-sen vacantes, por lo que éstas se sumarían en el número ideal de sus miembros. No ocurre así con las restantes de-cisiones, las cuales responden al criterio de mayoría simple de los presentes”.(12) Lo mismo sucede con las abstenciones en el proceso 56legislativo. Por tal razón, en Puerto Rico un voto abstenido tiene el mismo efecto que un voto en contra de una medida.(13) Ello, pues no se reduce el total de la composi-ción del cuerpo para contar los votos. Al analizar de esta manera el significado que la propia Constitución quiso adoptar para el concepto mayoría abso-luta, nos adherimos a una importante corriente interpre-tativa constitucional encausada por el profesor Akhil Reed Amar de la Escuela de Derecho de Yale. En su artículo Intratextualism, el profesor Amar establece que: Interpreters squeeze meaning from the Constitution through a variety of techniques -by parsing the text of a given clause, by mining the Constitution’s history, by deducing entailments of the institutional structure it outlines, by weighing the practicalities of proposed readings of it, by appealing to judicial cases decided under it, and by invoking the American ideals it embraces. Each of these classic techniques extracts meaning from some significant feature of the Constitution- its organization into distinct and carefully worded clauses, its embedment in history, its attention to institutional architecture, its plain aim to make good sense in the real world, its provision for judicial review (and thus judicial doctrine), and its effort to embody the ethos of the American people. Here is another feature of the Constitution: various words and phrases recur in the document. This feature gives interpreters yet another set of clues as they search for constitutional meaning and gives rise to yet another rich technique of constitutional interpretation. I call this technique intratextualism. In deploying this technique, the interpreter tries to read a contested word or phrase that appears in the Constitution in light of another passage in the Constitution featuring the same (or a very similar) word or phrase. (Énfasis suplido). A.R. Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (2009). De esta manera, nos reafirmamos en que no pueden leerse aisladamente conceptos que la Constitución utiliza en más de una ocasión. Los constituyentes deben haber interesado el mismo propósito en todas las menciones de un mismo concepto. En fin, “el número total de miembros” 57del cual se compone determinado cuerpo constitucional se calcula de la misma manera para todos ellos. Por otra parte, a diferencia de nuestra Constitución, la Constitución de Estados Unidos no incluye urna especifica-ción sobre el total de los miembros electos o que componen cada cámara para las enmiendas a esa Constitución. El Art. V de la Constitución federal, L.P.R.A., Tomo 1, ed. 2008, pág. 178, dispone: [t]he Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States .... (Enfasis y traducción nuestros). Ese artículo contrasta con el lenguaje específico utili-zado en nuestra Constitución, al no requerir que sea del total de los miembros que componen cada cámara. Por tal razón, el Tribunal Supremo de Estados Unidos resolvió que el requisito de dos terceras partes, a menos que se especifi-que lo contrario, significa dos terceras partes de los votos emitidos o dos terceras partes de los miembros presentes. En específico, en State of Rhode Island v. Palmer, 253 U.S. 350, 386 (1920), el Tribunal Supremo federal expresó, respecto a enmiendas a la Constitución de Estados Unidos, lo siguiente: The “two-thirds vote” in each house, which is required in proposing an amendment to the Constitution, is a vote of two-thirds of the members present, assuming the presence of a quorum, and __ not a vote of two-thirds of the entire membership. (Énfasis suplido). Es decir que, en las disposiciones que no especifiquen la totalidad de los miembros electos o de los que componen el cuerpo, se analizará el voto de dos terceras partes a la luz de los miembros presentes o del quorum. 58No obstante, como bien indicaron nuestros constituyen-tes, la mayoría de las Constituciones de los estados sí in-cluyen un lenguaje específico para enmendar sus Constitu-ciones por iniciativa de una mayoría absoluta de las cámaras. Así pues, estos han resuelto que cuando una Constitución exige dos terceras partes del total de los miembros, un voto menor, aunque constituya quorum, no es suficiente. Ello, aunque existan vacantes, pues el requi-sito es sobre el total de la composición del cuerpo.(14) Consecuentemente, el Reglamento del Senado de Puerto Rico de 2009 utiliza el mismo lenguaje de nuestra Constitución. Esas reglas que rigen los procesos legislati-vos del Senado exigen: Sección 17.4— Aprobación [de Resoluciones Concurrentes] Conforme a lo establecido en la Constitución de Puerto Rico en su Artículo VII, Sección 1, las Resoluciones Concurrentes que proponen enmiendas a la Constitución se entenderán aprobadas al obtener el voto afirmativo de por lo menos dos terceras partes del número total de los miembros que compo-nen cada Cámara. En tal caso, se someterá la enmienda a los electores mediante un referéndum especial. (Énfasis suplido), íd., pág. 57. B. Por otra parte, también contrario a la Constitución federal, nuestra Constitución reglamenta minuciosamente el proceso para la aprobación de leyes.(15) En específico, la 59Sec. 17 del Art. III de ese cuerpo, L.P.R.A., Tomo 1, legal establece, en lo pertinente: ... No se aprobará ningún proyecto de ley, con excepción de los de presupuesto general, que contenga más de un asunto, el cual deberá ser claramente expresado en su título, y toda aquella parte de una ley cuyo asunto no haya sido expresado en el título será nula. La ley de presupuesto general sólo podrá contener asignaciones y reglas para el desembolso de las mismas. Ningún proyecto de ley será enmendado de manera que cambie su jpropósito original o incorpore materias extra-ñas al mismo. Id., ed. 2008, pág. 397. Como podemos ver, la Constitución requiere que todo proyecto de ley aprobado por la Legislatura regule sola-mente un asunto y que este sea expresado en su título.(16) De lo contrario, el asunto no incluido en el título será nulo.(17) Con esta exigencia constitucional se quiso impedir la práctica legislativa conocida como “logrolling”.(18) Esta práctica consiste en combinar distintas propuestas incon-gruentes entre sí en un solo proyecto de ley, para obtener una mayoría artificial al momento de la votación.(19) Con relación a lo anterior, el Informe de la Comisión de la Rama Legislativa de la Convención Constituyente ex-plicó que [l]as disposiciones sobre título y asunto “impiden prácticas fraudulentas, facilitan la labor legislativa y hacen imposible que grupos minoritarios incorporen sus proposiciones favoritas en una sola pieza de legislación y se unan para obtener una mayoría artificial, la cual no existiría si las distintas proposiciones se consideraran separadamente”. (Escolio omitido). Diario de Sesiones, supra, Vol. 4, pág. 2584. 60Entre los tipos de “logrolling”, figuran los “riders”. Estas son disposiciones de ley no relacionadas con el asunto principal de la legislación que son incluidas en proyectos de ley que probablemente serán aprobados debido a su necesidad para el buen funcionamiento del gobierno o a su aceptación pública.(20) En Puerto Rico, se rechazó esta práctica del Congreso estadounidense con la aprobación de la Sec. 17 del Art. III, supra.(21) En particular, el delegado de la Con-vención Constituyente, Sr. Luis Negrón López, explicó: Esta oración “no se aprobará ningún proyecto de ley con excepción de los de presupuesto general que contenga más de un asunto, el cual deberá ser claramente expresado en su tí-tulo” es una disposición encaminada a evitar los riders, a evi-tar que se hagan enmiendas extrañas al propósito de los pro-yectos y que se adultere el fin de un proyecto aprobando subrepticiamente algo que la Asamblea Legislativa no dejaba aprobar, no debió haber permitido que se aprobara de haber conocido la intención. Diario de Sesiones, supra, Vol. 2, pág. 896. De esta manera, la regla de un solo asunto en conjunto con el requisito de que este sea incluido en su título impide la aprobación de un proyecto de ley con disposiciones que no son advertidas en su título (riders) y previene el fraude en la legislación, entre otros.(22) Además, asegura que toda medida legislativa sea considerada por separado y que su aprobación sea decidida por sus méritos individuales.(23) Sobre este particular, la profesora Dragich nos ilustra lo siguiente: [s]imply stated, the single subject rule exists “to secure to every distinct measure of legislation a separate consideration and decision, dependent solely upon its individual merits.” 61One leading commentator observed, “limiting each bill to a single subject” allows legislators to “better grasp and more intelligently discuss” the issues presented by each bill. Without the rule, the danger is that “several minorities [may combine] their several proposals as different provisions of a single bill and thus consolidate] their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal ... could have obtained majority approval separately.”(24) (Citas omitidas). Por su parte, el Manual de Procedimientos Legislativos de Paul Mason se expresa en los mismos términos.(25) In-cluso, indica: “[w]hen the requirement of a single subject or separate vote is contained in a constitution or controlling statute, it is binding on the body and cannot be suspended”. (26) No obstante, hemos establecido que solamente ante un caso claro y terminante se justifica anular una ley por vio-lar esta disposición constitucional.(27) Al considerar si una ley cumple con estos requisitos, se debe determinar si sus disposiciones se relacionan entre sí y son afines con el asunto que se expresa en su título.(28) Lo que comprende “un solo asunto” se interpreta liberalmente, pero sin igno-rar el objetivo y propósito del mandato constitucional. íd. En particular, será válida una ley con varios asuntos, siem-62pre que estos sean “asuntos germanos”, es decir, siempre que exista una relación estrecha entre ellos. (29) En Herrero y otros v. E.L.A., supra, evaluamos la vali-dez de una condición existente en una medida de recaudo que sujetaba su efectividad a la aprobación del Presupuesto General 2005-2006. Encontramos que la medida de recaudo era necesaria para cubrir el exceso de las asigna-ciones comparado con los recursos totales estimados para el año económico 2005-2006. Por consiguiente, sostuvimos su validez tras concluir que ambas estaban razonable-mente relacionadas. Por otro lado, en Laboy v. Corp. Azucarera Saurí y Subirá, 65 D.P.R. 422 (1945), invalidamos una parte de una enmienda al Código Penal que introdujo un asunto civil, por no estar relacionado con el fin de la medida, según expuesto en su título. En específico, el Art. 553 del Código Penal de 1902 (33 L.P.R.A. ant. see. 553) ordenaba el cierre de ciertos establecimientos comerciales e industriales des-pués del mediodía del domingo. La ley enmendadora exten-día la prohibición a los sábados después de las nueve de la noche, según anunciado en su título. Sin embargo, incluía una parte en la que concedía a ciertos empleados el dere-cho a un día de descanso por cada seis de trabajo. Contrario a lo que establece la mayoría de esta Curia, sostenemos que la regla de un asunto también aplica a las resoluciones concurrentes para proponer enmiendas a la Constitución y a las resoluciones conjuntas que no tengan que ver con el presupuesto general. En primer lugar, como vimos anteriormente, la Sec. 17 del Art. III de nuestra Constitución, supra, pág. 397, dispone, en parte, que “[n]o se aprobará ningún proyecto de ley, con excepción de los de presupuesto general, que contenga más de un asunto”. De lo anterior, podemos apreciar que la única excepción a la regla de un asunto que menciona esta disposición es los proyectos 63 de ley sobre el presupuesto general.( 30 ) Como sabemos, el presupuesto general se aprueba mediante resolución con-junta, a lo cual no alude la Constitución. Es evidente, por consiguiente, que la frase “ningún proyecto de ley” es utili-zada en la Constitución para incluir los demás tipos de medidas legislativas, como las resoluciones conjuntas y concurrentes. Si la Sec. 17 del Art. III, supra, se limitara únicamente a los proyectos de ley, excluyendo las resolucio-nes concurrentes y resoluciones conjuntas, no tendría sen-tido la excepción referente al presupuesto general. En segundo lugar, la Sec. 15.6 del Reglamento del Se-nado de Puerto Rico de 2009, pág. 50, correspondiente a la actual Asamblea Legislativa, dispone que [t]odo proyecto de ley o resolución tendrá un título corto en el cual se expresará en forma clara y concisa el asunto y pro-pósito del mismo, de manera que, de la lectura del título se entienda el propósito de la medida. Ninguna medida, con excepción de la del presupuesto general, podrá contener más de un asunto. (Enfasis suplido). De esta forma, el Senado interpretó la Constitución de manera consistente con lo señalado al referirse a la “medi-da” y no específicamente a un “proyecto de ley”. Asimismo, el propio Senado delimitó la posibilidad de incluir más de un asunto en cualquier medida, con excepción de las de presupuesto general. En tercer lugar, la Sec. 17.3 del Reglamento, pág. 57, establece que “[I\as Resoluciones Concurrentes que propon-gan enmiendas a la Constitución, luego de radicadas, se tramitarán en la misma forma que un proyecto de ley”. (Énfasis suplido). Así ha sido desde 1917: Reglamento del Senado de Puerto Rico de 1917: No se apro-64bará ningún proyecto de ley, con excepción de los de presu-puesto general, que contenga más de un asunto, el cual deberá ser claramente expresado en su título. Regla XVI (12). Las resoluciones concurrentes del Senado tendrán el mismo trá-mite que los proyectos de ley y resoluciones conjuntas. Regla XVI (18). Reglamento del Senado de Puerto Rico de 1950: No se apro-bará ningún proyecto de ley, con excepción de los de presu-puesto general, que contenga más de un asunto, el cual deberá ser claramente expresado en su título. Regla XI (12). Las re-soluciones concurrentes del Senado tendrán el mismo trámite que los proyectos de ley y resoluciones conjuntas. Regla XI (12). Reglamentos del Senado de Puerto Rico de 1966, 1970, 1974 y 1977: Todo proyecto de ley y toda resolución tendrá un título corto exponiendo, brevemente, la naturaleza del asunto .... Regla XV (3). Las resoluciones concurrentes que propongan enmiendas a la Constitución se tramitarán en la misma forma que un proyecto de ley, excepto que no serán remitidas al Go-bernador para su aprobación. Regla XVII (2). Reglamentos del Senado de Puerto Rico de 1985 y 1989: Todo proyecto de ley o resolución tendrá un título corto en el cual se expresará en forma clara y concisa el asunto y propósito del mismo. Ninguna medida, con excepción de la del presupuesto general, podrá contener más de un asunto. Sec. 14.6. Las Re-soluciones Concurrentes que propongan enmiendas a la Cons-titución, luego de radicadas, se tramitarán en la misma forma que un proyecto de ley[.] Sec. 16.3. Reglamento del Senado de Puerto Rico de 1993: Todo pro-yecto de ley y toda resolución tendrá un título corto expo-niendo, brevemente, la naturaleza del asunto.... Regla XV (3). Las resoluciones concurrentes que propongan enmiendas a la Constitución se tramitarán en la misma forma que un pro-yecto de ley, excepto que no serán remitidas al Gobernador para su aprobación. Regla XVII (2). Reglamentos del Senado de Puerto Rico de 1997 y 2001: Todo proyecto de ley o resolución tendrá un título corto en el cual se expresará en forma clara y concisa el asunto y propósito del mismo. Ninguna medida, con excepción de la del presupuesto general, podrá contener más de un asunto. Sec. 15.6. Las Re-soluciones Concurrentes que propongan enmiendas a la Cons-titución, luego de radicadas, se tramitarán en la misma forma que un proyecto de ley[.] Sec. 17.3. Reglamento del Senado de Puerto Rico de 2005: Todo pro-yecto de ley o resolución tendrá un título corto en el cual se expresará en forma clara y concisa el asunto y propósito del 65mismo, de manera que, de la lectura del título se entienda el propósito de la medida. Ninguna medida, con excepción de la del presupuesto general, podrá contener más de un asunto. Sec. 15.6. Las Resoluciones Concurrentes que propongan en-miendas a la Constitución, luego de radicadas, se tramitarán en la misma forma que un proyecto de ley[.] Sec. 17.3.(31) Es harto sabido que las reglas adoptadas por los cuerpos legislativos los vinculan con fuerza de ley.(32) No obstante, en la opinión de la mayoría no se mencionan estas disposi-ciones del reglamento. Estas reglas vinculan a los cuerpos legislativos, sin dejar a un lado que las reglas constitucio-nales para la aprobación de legislación, como las referentes al título y contenido de las medidas legislativas, prevale-cen sobre cualquier otra regla de procedimiento legislativo.(33) Además, nótese que las resoluciones concurrentes se utilizan para asuntos de trascendencia muy distinta. Se-gún establece el Reglamento del Senado de 2009, se utili-zan para: (a) proponer enmiendas a la Constitución de Puerto Rico; (b) consignar expresiones de la Asamblea Le-gislativa que no tienen carácter de legislación; (c) disponer sobre el gobierno interno de la Asamblea Legislativa. (34) Es decir, entre los diferentes propósitos que puede tener una resolución concurrente, es innegable que el de propo-ner enmiendas a la Constitución es el de mayor trascen-dencia. La única razón por la que los Constituyentes esco-gieron que esto se hiciera mediante resolución concurrente fue para reservar a la exclusiva jurisdicción del Poder Le-gislativo la iniciativa de proponer enmiendas consti-66tucionales, sin que se requiriese la intervención del Poder Ejecutivo.(35) De ninguna manera puede interpretarse que la intención fue promover un procedimiento más laxo para enmendar la Constitución que el de aprobación de una ley. Sin embargo, la opinión mayoritaria, al citar esa sec-ción, pretende aplicar a la controversia ante nos el inciso (b) (consignar expresiones de la Asamblea Legislativa) como si proponer enmiendas a la Constitución y consignar expresiones de la Asamblea Legislativa fuera la misma cosa. Por nuestra parte, entendemos que el Senado dividió cada uno de los tres objetivos para los que se pueden apro-bar resoluciones concurrentes, precisamente porque son asuntos distintos. Así, pues, no respaldamos que se trate una enmienda constitucional como si fuera una mera ex-presión de la Asamblea Legislativa que no tiene carácter de legislación y a la cual no le aplica la regla que limita esta a un asunto. Por todo lo anterior, no cabe duda de que el requisito de un solo asunto aplica a las resoluciones concurrentes, por mandato constitucional y reglamentario. El requisito de un asunto contenido en la Sec. 17 del Art. III de nuestra Cons-titución, supra, aplica a todo tipo de medida legislativa, incluyendo las resoluciones concurrentes; no solamente a los proyectos de ley. Asimismo, el requisito de un asunto contenido en la Sec. 15.6 del Reglamento del Senado de 2009 dictamina expresa y terminantemente que ninguna medida podrá contener más de un asunto. Ello incluye las resoluciones concurrentes. Encima, la Sec. 17.3 del mismo Reglamento establece claramente que las resoluciones con-currentes que propongan enmiendas a la Constitución se tramitarán en la misma forma que un proyecto de ley, trá-mite que incluye la prohibición de incluir más de un asunto en una pieza legislativa. De hecho, para el referéndum que se celebrará el 6 de noviembre de 1994, la Asamblea Legislativa intentó obser-67var la regla de un asunto al aprobar tres resoluciones con-currentes independientes para cada mía de las enmiendas constitucionales que buscaba proponer al electorado: la Resolución Concurrente de la Cámara Núm. 14 de 13 de diciembre de 1993 proponía añadir una Sec. 20 al Art. VI de la Constitución para establecer unos límites al número de términos que una persona podría servir en cada uno de los cargos siguientes: gobernador, senador, representante a la Cámara y alcalde; la Resolución Concurrente de la Cámara Núm. 32 de 16 de mayo de 1994 proponía enmendar el Art. II, Sec. 11, Pár. 5 de la Constitución para limitar el derecho absoluto a la fianza, y la Resolución Concurrente del Senado Núm. 44 de 6 de julio de 1994 proponía una en-mienda al Art. V, Sec. 3 de la Constitución, para fijar en nueve el número de Jueces del Tribunal Supremo de Puerto Rico y, a su vez, derogar la disposición que provee que “[e]l número de sus jueces sólo podrá ser variado por ley, a solicitud del propio Tribunal Supremo”. Berríos Martínez v. Gobernador II, 137 D.P.R. 195, 204 (1994).(36) En fin, no podemos olvidar que, para enmendar nuestra Constitución, los Constituyentes eligieron un procedi-miento lo suficientemente rígido como para impartir a esta estabilidad y distinguirla de las leyes ordinarias.(37) III Al resolver la controversia ante nos, debemos ejercer nuestra función como último intérprete de la Constitución. Ello, teniendo en mente que al analizar la constitucionali-dad de una ley, debemos esforzamos por mantener su cons-titucionalidad, en deferencia a la interpretación inicial de 68la Constitución que hacen las ramas políticas de gobierno.(38) Así pues, coincidimos con la posición del P.I.P., acogida en la opinión mayoritaria, en cuanto a que los escaños le-gislativos vacantes tienen que tomarse en consideración al momento de determinar los votos necesarios para aprobar una resolución concurrente por dos terceras partes de la totalidad de los miembros que componen cada cámara. Sin lugar a dudas, el requisito de una mayoría absoluta para enmendar la Constitución requiere que se apruebe por dos terceras partes del número total de miembros que compo-nen cada cámara. El lenguaje en la Constitución es claro al fijar el número de miembros que componen cada cámara(39) y solo por activación de la ley de minorías es que se añaden miembros a su composición. Igualmente, es específico el lenguaje que requiere la mayoría absoluta para aprobar la resolución concurrente para enmendar la Constitución. Además, reafirmamos que ese lenguaje ya fue interpretado por este Tribunal en Sánchez Rodríguez v. López Jiménez, supra. Más aún, como señalamos, las partes estipularon que el Senado está compuesto por treinta y un miembros y el foro de primera instancia tomó conocimiento judicial de que la votación constituyó menos de dos terceras partes del total de escaños. Eso nos parece suficiente para aclarar que la composición del Senado de la Decimosexta Asamblea Le-gislativa es de treinta y un miembros y que ello no está sujeto a ser reducido por vacantes, muerte, expulsiones, ausencias u otras situaciones que puedan surgir durante su vigencia. Es inaceptable que, contrario a lo estipulado y establecido en la Constitución, el representante legal del E.L.A. que compareció ante nos sostenga que al momento 69de la votación de la Resolución Concurrente del Senado Núm. 35 ese cuerpo se componía por veintinueve miembros.(40) Precisamente por ello, porque mantienen un escaño va-cío o con efecto de un voto en contra, la ley aborrece las vacantes porque entorpecen la continuación de la adminis-tración de los asuntos públicos.(41) Igualmente, esa exigencia tan rígida para aprobar una resolución concurrente para enmendar la Constitución no puede violar el principio democrático de la representativi-dad en el funcionamiento de la Asamblea Legislativa. Nó-tese que las dos vacantes que existían al momento de la aprobación de la Resolución Concurrente Núm. 35 eran de un Senador del distrito de Guayama y otro del distrito de San Juan para cerca de 950,000 ciudadanos repre-sentados.(42) Por tal razón, de autorizar que las vacantes reduzcan la composición del Senado, dejaríamos dos distri-tos senatoriales y cerca de un millón de residentes fuera de un proceso tan crítico como iniciar la propuesta de enmien-das a la Constitución. No lo podemos permitir. Hemos rei-terado que el principio de “una persona, un voto” consa-grado por nuestra Constitución no se limita solamente al proceso eleccionario. De nada sirve que a los ciudadanos se les garantice su derecho al voto, si luego aquellos que fue-ron depositarios de la confianza de los electores son exclui-dos en momentos cruciales del proceso legislativo.(43) 70Tampoco podemos aceptar la interpretación que pre-senta el representante legal del E.L.A. respecto al requi-sito homólogo existente en la Constitución federal. Como explicamos, nuestra Constitución va más allá, mediante un lenguaje claro y específico. Allí donde la Constitución federal dice dos terceras partes de ambas cámaras, la nuestra establece dos terceras partes del número total de los miembros de que se compone cada cámara. Necesaria-mente, por esa distinción incluida en la mayoría de las constituciones estatales, es que la interpretación que las dos terceras partes se refiere a los presentes únicamente aplica a aquellas disposiciones que tienen el mismo len-guaje que la Constitución federal. Por el contrario, las cortes supremas de aquellos estados que especifican en su constitución la totalidad de la composición de las cámaras han llegado a la misma conclusión que estamos expresando. Sin embargo, la Resolución Concurrente Núm. 35 se aprobó en el Senado, el 10 de octubre de 2011, con veinte votos a favor. Se necesitaban veintiún votos afirmativos de ese cuerpo para aprobarla. Siendo así, no cumplió con el requisito constitucional de las dos terceras partes de los miembros que componen ese cuerpo.(44) Por ello, conclui-mos que la Resolución Concurrente Núm. 35 es inconstitucional. Por consiguiente, la Ley Habilitadora, Ley 12-2012, creada por esa resolución concurrente, tam-bién es inconstitucional. Habiendo resuelto lo anterior, es innecesario discutir el resto de los señalamientos sobre la inconstitucionalidad de la Resolución Concurrente del Senado Núm. 35 en cuanto a la agrupación indebida de múltiples proposiciones. Por otra parte, el 27 de marzo de 2012, el Senado pre-71sentó la Resolución Concurrente del Senado Núm. 60 para proponer una enmienda constitucional a los efectos de li-mitar el derecho a la fianza. Finalmente, el 10 de mayo de 2012, aproximadamente siete meses después de la aproba-ción de la Resolución Concurrente del Senado Núm. 35, el Senado aprobó la versión modificada de esa Resolución Concurrente. Esta vez, como citado anteriormente, la Sec-ción 2 disponía, en lo pertinente, lo siguiente: La enmienda propuesta en esta Resolución Concurrente será sometida para su aprobación o rechazo a los electores capacitados en Puerto Rico en un Referéndum Especial a ce-lebrarse el 19 de agosto de 2012, conjunto con la consulta para enmendar la Constitución a los fines de cambiar la composi-ción de la Asamblea legislativa, propuesta en la resolución Concurrente del Senado Núm. 35, según la voluntad expresada por esta Asamblea Legislativa con la aprobación de la misma y la cual reiteramos en la presente Resolución Concurrente. (Én-fasis suplido). íd., págs. 11-12. La versión de 27 de marzo de 2012 no incluía la reitera-ción de la Resolución Concurrente del Senado Núm. 35. Ni siquiera la mencionaba. Coincidimos con la mayoría de este Tribunal, cuando expresa que “por su evidente importancia, las Constitucio-nes no pueden ser enmendadas como si fueran cualquier otro estatuto”.(45) No obstante lo dicho, la mayoría optó por aplicar unas exigencias procesales menos restrictivas y ri-gurosas que las que se aplican a los proyectos de ley, al resolver que las resoluciones concurrentes para proponer enmiendas a la Constitución no son leyes ordinarias, sino un proceso legislativo diseñado para recoger la voluntad del Cuerpo, el cual no está atado a los procedimientos cons-titucionales que se requieren para la aprobación de las leyes.(46) No podemos avalar esa interpretación. Por el contrario, precisamente por esa “evidente importancia” de las en-72miendas a la Constitución debemos reconocer que los prin-cipios constitucionales referentes a la aprobación de leyes aplican a la aprobación de las resoluciones concurrentes para enmendar la Constitución, según la voluntad de los constituyentes y los reglamentos así aprobados por el Senado. Cabe recordar que la opinión mayoritaria ni si-quiera menciona el Reglamento del Senado sobre el requi-sito de un solo asunto. A la luz de este marco jurídico completo, observamos que el título de la Resolución Concurrente del Senado Núm. 60 solo anuncia la proposición de enmienda consti-tucional relacionada con la limitación del derecho a la fianza, sin mencionar la “reiteración” de la Resolución Con-currente del Senado Núm. 35 ni la reforma legislativa pro-puesta por esta. Siendo así, y según el derecho aplicable, procede analizar si ambas disposiciones se relacionan en-tre sí y son afines con el asunto que se expresa en su título(47) La propuesta de enmienda a nuestra Constitución para cambiar la composición de la Asamblea Legislativa es un asunto de carácter constitucional. Por otro lado, la pro-puesta de enmienda a nuestra Constitución para limitar el derecho a la fianza es de carácter penal. Ciertamente, una reforma legislativa, como mínimo, no tiene relación alguna con el derecho de un acusado a estar libre bajo fianza. Por lo tanto, la Resolución Concurrente del Senado Núm. 60 incluye dos asuntos, en contra de los principios constitucio-nales de un asunto y del Reglamento del Senado de 2009. Vemos, pues, que la “reiteración” de la Resolución Con-currente del Senado Núm. 35, incluida subrepticiamente en la See. 2 de la Resolución Concurrente del Senado Núm. 60, es un “rider”. Es una disposición (reforma legislativa) no relacionada con el asunto principal de la legislación (limi-tación del derecho a la fianza) que fue incluida en la Reso- 73lución Concurrente que probablemente iba a ser aprobada, como lo fue.(48) De esta manera, no se aseguró que la re-forma legislativa fuera “reconsiderada” por separado y que su aprobación fuera decidida por sus méritos individuales. Véase Dragich, op. cit. De hecho, es la primera y única vez, al menos desde 1993,( 49 ) que el Senado intenta “reiterar” una propuesta de enmienda constitucional mediante una Resolución Concu-rrente que no guarda relación alguna con esta, desviándose así de las exigencias constitucionales discutidas anterior-mente y de su propio reglamento.( 50 ) Más aún, esa Resolu- 74 ción Concurrente viola directamente el Reglamento del Se-nado del 2009 que establece la misma prohibición que nuestra Constitución para toda medida legislativa. La Opinión mayoritaria expresa que, mediante la vota-ción para la aprobación de la Resolución Concurrente Núm. 60, “[n]o hay duda de que la voluntad de más de dos terceras (2h) partes de los miembros del Senado de Puerto Rico es proponerle al Pueblo una enmienda constitucional para reducir el tamaño de la Legislatura”.(51) Respecto a lo anterior, amerita destacar que, según surge del historial de ambas resoluciones concurrentes, la senadora Hon. Sila M. González Calderón votó en contra de proponer la Reforma Legislativa (R. Cone, del S. 35) y a favor de proponer la limitación al derecho de la fianza (R. Cone, del S. 60). Esto demuestra precisamente lo que la regla de un solo asunto pretende evitar: que un asunto no favorecido se incluya subrepticiamente en una legislación que cuenta con los vo-tos necesarios para ser aprobada. En este caso, lo secundario no favorecido por la sena-dora fue la aprobación de la Resolución Concurrente Núm. 35, con la frase aislada insertada en la See. 2 de la Reso-lución Concurrente Núm. 60. La mayoría de este Tribunal sostiene que la senadora reconsideró su posición sobre la primera Resolución Concurrente y la favoreció. Lo consi-dera “un hecho” que “[fifingún Juez de este Tribunal puede controvertir ...”. (Énfasis suprimido). (52) Esta conclusión es contraria a todo lo expuesto sobre la inclusión de riders en las medidas legislativas y su rechazo expreso por los constituyentes. Nos reafirmamos en que los principios constitucionales pretenden proteger exactamente que el quehacer legislativo refleje claramente la voluntad de los 75legisladores y que se evite lo que sucedió en este caso. Bien podría ser que los senadores, en particular la senadora González, descansaron en que la Resolución Concurrente Núm. 35 fue aprobada válidamente o que, como mínimo, el voto que ya habían emitido respecto a la reforma legisla-tiva no podía cancelarse por una corta referencia a la reso-lución pertinente. Más aún, la mayoría establece “que nada impide que el Senado de Puerto Rico, mediante Resolución Concurrente posterior, reitere lo hecho en una anterior”.(53) De ser así, lo hecho, según resuelto en la propia opinión mayoritaria, fue no aprobar válidamente una Resolución Concurrente. O sea, no había nada “hecho”, nada que reiterar. Realmente, se estaría reiterando la nulidad de la Resolución Concu-rrente Núm. 35. Asimismo, con la conclusión de que la Resolución Con-currente Núm. 60 reiteró y validó la Resolución Concu-rrente Núm. 35, la mayoría de este Tribunal invierte el trá-mite cronológico exigido en la Constitución de que el proceso de enmiendas a la Constitución se inicie con la aprobación de la Resolución Concurrente. Es decir, la ma-yoría resuelve que la Ley Habilitadora 12-2012, aprobada el 9 de enero de 2012, se aprobó válidamente antes que la Resolución Concurrente que inicia el proceso, aprobada el 10 de mayo de 2012. Por consiguiente, es forzoso concluir que la See. 2 de la Resolución Concurrente del Senado Núm. 60 viola la See. 17 del Art. Ill de nuestra Constitución, supra, en la medida que, subrepticiamente, intenta reiterar lo aprobado incons-titucionalmente mediante la Resolución Concurrente del Senado Núm. 35. Además, viola la Sec. 15.6 del Regla-mento del Senado de 2009 que prohíbe que las medidas aprobadas por ese Cuerpo contengan más de un asunto. 76IV Las propuestas de enmiendas a la Constitución que la mayoría de este Tribunal valida permiten que las mayorías puedan enmendar la Constitución con exclusión de las minorías. Ello, incide en el objetivo claramente expresado y el espíritu que permeó la Convención Constituyente de garantizarle representación a las minorías. La aprobación de estas enmiendas podría conllevar el destierro de los par-tidos minoritarios, ya que un tercer partido político difícil-mente obtendrá un escaño en la Asamblea Legislativa. Al analizar los resultados de las votaciones para los cargos de Representantes y Senadores por Acumulación a través de los años, resulta notable que en su mayoría, quienes en-tran entre las primeras seis posiciones pertenecen al par-tido vencedor de la elección. La propuesta de enmienda en controversia perpetuaría este esquema. Ello supone una alteración significativa en nuestro orde-namiento político, que reconoce que tanto el P.I.P. hoy, como las minorías en general, son importantes fiscalizadores del proceso legislativo y constitucional y protegen a los ciuda-danos que responden a ideologías minoritarias. Por eso, se requiere la mayor rigurosidad en el proceso de proponer al Pueblo esta enmienda. Con su decisión, debilitándose al máximo ese proceso y convirtiéndolo en lo mismo que una expresión de felicita-ción de la Asamblea Legislativa, la mayoría trata con des-precio dos principios constitucionales firmemente arraiga-dos en nuestra sociedad: garantizar el derecho de las minorías a tener representación en el proceso legislativo y garantizar la estabilidad de la Constitución.(54) El proceso de enmiendas a la Constitución debe ser claro y riguroso. De esta forma, cuando el Pueblo esté llamado a tomar la decisión de reformular cualquier aspecto en la 77Constitución, podrá confiar en que el Poder Legislativo se adhirió a los postulados allí contenidos. Como la opinión mayoritaria es contraria a estos princi-pios, disentimos y declararíamos que la Resolución Concu-rrente del Senado Núm. 35, la Ley Núm. 12-2012, la See. 2 de la Resolución Concurrente del Senado Núm. 60 y la Ley Núm. 84-2012 son inconstitucionales. — O — (1) Apéndice, pág. 126. (2) El 27 de marzo de 2012, el Senado presentó una primera versión de esta Resolución Concurrente. Esta disponía: “Sección 2.— La enmienda propuesta en esta Resolución Concurrente será so-metida para su aprobación o rechazo a los electores capacitados en Puerto Rico en un Referéndum Especial a celebrarse el 19 de agosto de 2012. La Comisión Estatal de Elecciones deberá publicar la propuesta de enmienda constitucional con tres (3) me-ses de antelación a la fecha del referéndum. La Comisión Estatal de Elecciones desarrollará una campaña de orientación durante los sesenta (60) días anteriores a la fecha del Referéndum”. (3) R. Cone, del S. Núm. 60 de 10 de mayo de 2012, págs. 11-12. (4) Véase Black’s Law Dictionary, 9na ed., St. Paul, Ed. West Pub. Co., pág. 1041, “majority of all the members” y “majority of the entire membership” definido como a “majority of all the actual members, disregarding vacancies”. (5) Art. III, Sec. 7, Const. E.L.A., supra, pág. 386. (6) Informe Complementario de la Comisión de la Rama Legislativa de la Con-vención Constituyente de Puerto Rico 2590 (1951). (7) Id. (8) Véanse: 2 Diario de Sesiones de la Convención Constituyente 814-819 y 1297-1299 (1951); Informe de la Comisión de la Rama Legislativa, pág. 2581. (9) Véase la discusión en Diario de Sesiones, supra, Vol. 3, pág. 2021. (10) Art. III, Sec. 8, Const. E.L.A., supra. (11) Art. V, Sec. 4, Const. E.L.A., supra, pág. 412. (12) Sánchez Rodríguez v. López Jiménez, 116 D.P.R. 392 (1985). (Énfasis suplido y en el original). Véanse, además: P.P.D. v. Peña Clós, supra; Diario de Sesiones, supra, Vol. 1, págs. 455, 519-569, 594, 595 y 616; Diario de Sesiones, supra, Vol. 3, págs. 1697-1699 (1952); Diario de Sesiones, supra, Vol. 4, págs. 2349, 2456 y 2612 (1952). (13) Noriega Rodríguez v. Jarato, 136 D.P.R. 497 (1994). (14) Véanse: In re Opinion of the Justices, 228 Ala. 140 (1934); Warnock v. City of Lafayette, 4 La. Ann. 419 (1849); Zeiler v. Central Ry. Co., 84 Md. 304 (1896); Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581 (1940); Southworth v. Palmyra & J.R. Co., 2 Mich. 287 (1851); Green v. Weller, 32 Miss. 650 (1856); Missouri v. McBride, 4 Mo. 303 (1836); City of North Platte v. North Platte Water Works, 56 Neb. 403 (1898); English v. State, 7 Tex. App. 171 (1879); Buffington Wheel Co. Burnham, 60 Iowa 493 (1883); Griffin v. Messenger, 114 Iowa 99 (1901); Speed v. Crawford, 60 Ky. 207 (1860); Blood v. Beal, 100 Me. 30 (1905); Whitney v. Village of Hudson, 69 Mich. 189 (1888); Pollasky v. Schmid, 128 Mich. 699 (1901); Minnesota ex rel. Eastland v. Gould, 31 Minn. 189 (1883); Minnesota ex rel. Kohlman v. Wagner, 130 Minn. 424 (1915); Cleveland Cotton Mills v. Cleveland County Comm’rs, 108 N.C. 678 (1891). (15) J.J. Álvarez González, Derecho constitucional de Puerto Rico y relaciones constitucionales con los Estados Unidos: casos y materiales, Bogotá, Ed. Temis, 2009, pág. 244. (16) Herrero y otros v. E.L.A., 179 D.P.R. 277, 291 (2010); Dorante v. Wrangler of P.R., 145 D.P.R. 408, 427 (1998). (17) Íd. (18) Herrero y otros v. E.L.A., supra, pág. 293, citando a 1A Singer y Singer, Statutes and Statutory Construction Sec. 17.1, pág. 7 (2009). (19) Íd. (20) Herrero y otros v. E.L.A., supra, págs. 293-294. (21) Álvarez González, op. cit. (22) Herrero y otros v. E.L.A., supra, págs. 295; Dorante v. Wrangler of P.R., supra; Cervecería Corona, Inc. v. J.S.M., 98 D.P.R. 801, 812 (1970). (23) M.J. Dragich, State Constitutional Restrictions on Legislative Procedure: Rethinking the Analysis of Original Purpose, Single Subject, and Clear Title Challenges, 38 Harv. J. on Legis. 103, 114-115 (2001). (24) Íd. (25) En específico, el Manual de Procedimientos Legislativos de Paul Mason expresa lo siguiente: “[t]he constitutions of most states require that no bill shall contain more than one subject. Sometimes, they also contain other provisions, such as requiring, in an election, that candidates be voted upon separately. The purpose of these provisions is to secure the independent judgment of the members on each question and prevent members from being required to vote for one proposition, which they may not approve, in order to secure the enactment of another”. P. Mason, Mason’s Manual of Legislative Procedure, Denver, Ed. Thomson Reuters, 2010, Sec. 310, pág. 225. (26) Mason, op. cit., Sec. 312, pág. 226. (27) Herrero y otros v. E.L.A., supra, págs. 295; Dorante v. Wrangler of P.R., supra, págs. 429-431; Cervecería Corona, Inc. v. J.S.M., supra, págs. 811-812. (28) Herrero y otros v. E.L.A., supra, pág. 296; Cervecería Corona, Inc. v. J.S.M., supra, pág. 812. (29) Escuela de Administración Pública de la U.P.R., La nueva constitución de Puerto Rico, San Juan, Ed. U.P.R., 2005, pág. 403. (30) “y entonces, como el presupuesto general de gastos va a contener numerosas partidas, por eso se hace la salvedad, para lograr el propósito de prohibir los riders y de penarlos con la nulidad de la ley, salvando la validez de una ley que ha de conte-ner más de una partida, más de una asignación, más de un propósito y va a ser válida no obstante eso”. 2 Diario de Sesiones, supra, pág. 896. (31) Los Reglamentos del Senado de Puerto Rico correspondientes a Asambleas Legislativas anteriores fueron obtenidos a través de la Biblioteca del Tribunal Supremo de Puerto Rico y la Biblioteca del Senado de Puerto Rico. Los Reglamentos de 1954, 1958, 1962 y 1981 no fueron suministrados por el Senado para el momento de certificarse esta opinión. (32) R.E. Bemier y J.A. Cuevas Segarra, Aprobación e interpretación de las leyes en Puerto Rico, 2da ed., San Juan, Pubs. JTS, 1987, pág. 46. (33) La nueva Constitución de Puerto Rico, op. cit. (34) Sec. 17.1 del Reglamento del Senado de 2009. (35) 4 Diario de Sesiones, supra, pág. 2559. (36) En aquella ocasión, declaramos inconstitucional la Resolución Concurrente Núm. 14 por violar el requisito de separación de la Sec. 1 del Art. VII de la Constitución, supra, al presentar tres proposiciones de enmienda como una. Berríos Martínez v. Gobernador II, supra, pág. 238. (37) Córdova y otros v. Cámara Representantes, supra. (38) Véase Misión Ind. P.R. v. J.P., 146 D.P.R. 64 (1998). (39) por tai razón, dado que la Constitución establece el número total que com-pone cada cuerpo, es innecesaria la discusión sobre qué significan miembros, según planteado por el representante legal del E.L.A. (40) Consignamos nuestra sorpresa y preocupación con el hecho de que durante todo el trámite procesal de esta importante controversia constitucional el E.L.A. estuvo representado por una firma privada de abogados y no por el Procurador General de Puerto Rico. De ordinario, en los casos en los que se cuestiona la validez de una ley, su defensa de la constitucionalidad la asume el Procurador General, funcio-nario público con la responsabilidad primaria de representar al E.L.A. ante este Tribunal. Véase el Art. 60 de la Ley Núm. 205-2004 (3 L.P.R.A. sec. 2941). (41) Betancourt v. Gobernador, 119 D.P.R. 435, 447 (1987); Fernández v. Corte, 71 D.P.R. 161, 178 (1950). (42) Determinación final de la Junta Constitucional de revisión de distritos electorales senatoriales y representativos 2011, pág. 40. (43) Silva v. Hernández Agosto, 118 D.P.R. 45, 69 (1986). (44) Creemos que el Senado, con el proceder de la aprobación de la Resolución Concurrente Núm. 60, actuó conforme a nuestra interpretación. “Hoy juramentan dos senadores adicionales que nos permiten tener las dos terceras partes que nece-sitamos” dijo Seilhamer. http://www.vocero.com/se-aprobara-proyecto-para-limitar-fianza/ revisado 5 de julio de 2012. (45) Opinión mayoritaria, pág. 18. (46) Opinión mayoritaria, pág. 31. (47) Véanse: Herrero y otros v. E.L.A., supra, pág. 296; Cervecería Corona, Inc. v. J.S.M., supra, pág. 812. (48) Véase Herrero y otros v. E.L.A., supra, págs. 293-294. (49) La información disponible en la página cibernética del Sistema del Trámite Legislativo de la Oficina de Servicios Legislativos solo contiene las resoluciones con-currentes desde 1993. (50) véanse: R. Conc. del S. 2 de 9 de febrero de 1993; R. Conc. del S. 8 de 24 de noviembre de 1993; R. Conc. del S. 16 de 16 de julio de 1993; R. Conc. del S. 9 de 30 de abril de 1993; R. Conc. del S. 26 de 21 de enero de 1994; R. Conc. del S. 28 de 1 de febrero de 1994; R. Conc. del S. 29 de 8 de febrero de 1994; R. Conc. del S. 30 de 10 de febrero de 1994; R. Conc. del S. 37 de 19 de mayo de 1994; R. Conc. del S. 41 de 22 de junio de 1994; R. Conc. del S. 44 del 14 de julio de 1994; R. Conc. del S. 58 de 24 de abril de 1995; R. Conc. del S. 64 de 30 de enero de 1996; R. Conc. del S. 65 del 6 de febrero de 1996; R. Conc. del S. 9 de 4 de marzo de 1997; R. Conc. del S. 10 de 12 de marzo de 1997; R. Conc. del S. 21 de 26 de septiembre de 1997; R. Conc. del S. 22 de 30 de septiembre de 1997; R. Conc. del S. 37 de 6 de abril de 1998; R. Conc. del S. 41 de 2 de febrero de 1999; R. Conc. del S. 42 de 2 de febrero de 1999; R. Conc. del S. 43 de 2 de febrero de 1999; R. Conc. del S. 44 de 3 de febrero de 1999; R. Conc. del S. 48 de 18 de marzo de 1999; R. Conc. del S. 50 de 21 de junio de 1999; R. Conc. del S. 73 de 9 de septiembre de 2000; R. Conc. del S. 1 de 2 de enero de 2001; R. Conc. del S. 13 de 20 de abril de 2001; R. Conc. del S. 21 de 4 de septiembre de 2001; R. Conc. del S. 48 de 12 de noviembre de 2002; R. Conc. del S. 54 de 27 de enero de 2003; R. Conc. del S. 85 de 28 de agosto de 2003; R. Conc. del S. 96 de 18 de diciembre de 2003; R. Conc. del S. 2 de 2 de enero de 2005; R. Conc. del S. 3 de 2 de enero de 2005; R. Conc. del S. 38 de 23 de agosto de 2005; R. Conc. del S. 39 de 24 de agosto de 2005; R. Conc. del S. 64 de 19 de mayo de 2006; R. Conc. del S. 72 de 24 de julio de 2006; R. Conc. del S. 77 de 22 de septiembre de 2006; R. Conc. del S. 78 de 22 de septiem-bre de 2006; Sustitutivo de las R. Conc. del S. 2, 39, 48, 64, 77, 78 y los P. del S. 1462 y 1671 de 6 de octubre de 2006; R. Conc. del S. 74 de 30 de agosto de 2006; R. Conc. del S. 81 de 23 de enero de 2007; R. Conc. del S. 83 de 23 de enero de 2007; R. Conc. del S. 84 de 23 de enero de 2007; R. Conc. del S. 85 de 23 de enero de 2007; R. Conc. del S. 90 de 13 de febrero de 2007; R. Conc. del S. 99 de 24 de abril de 2007; R. Conc. del S. 104 de 1 de junio de 2007; R. Conc. del S. 81 de 7 de noviembre de 2007; R. Conc. del S. 2 de 2 de enero de 2009; R. Conc. del S. 6 de 12 de enero de 2009; R. Conc. del S. 10 de 3 de abril de 2009; R. Conc. del S. 12 de 6 de mayo de 2009; R. Conc. del S. 14 de 11 de mayo de 2009; R. Conc. del S. 17 de 17 de junio de 2009; R. Conc. del S. 23 de 7 de septiembre de 2009; R. Conc. del S. 25 de 14 de septiembre de 2009; R. Conc. del S. 27 de 18 de septiembre de 2009; R. Conc. del S. 28 de 24 de septiembre de 2009; R. Conc. del S. 29 de 24 de septiembre de 2009; R. Conc. del S. 7434 de 6 de abril de 2010; R. Cone, del S. 49 de 8 de junio de 2011; R. Cone, del S. 51 de 2 de septiembre de 2011; R. Cone, del S. 52 de 19 de septiembre de 2011; R. Con. del S. 55 de 17 de octubre de 2011; R. Cone, del S. 63 de 14 de mayo de 2012. (51) Opinión mayoritaria, págs. 29-30. (52) Id., pág. 30. (53) Íd., pág. 31. (54) Véanse: P.P.D. v. Peña Clós, supra; P.P.D. v. Gobernador I, 139 D.P.R. 643 (1995); P.R.P. v. E.L.A., 115 D.P.R. 631 (1984).	01-03-2023	11-23-2022
https://www.courtlistener.com/api/rest/v3/opinions/2961001/	Order entered September 10, 2015 In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00033-CV CITY OF DALLAS, VINCENT GOLBECK, STEPHEN WORDEN, RAQUEL HERNANDEZ AND CARLA D. NEWSON, Appellants V. ROBERT GRODEN, Appellee On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-01521 ORDER Appellee’s September 9, 2015 unopposed motion to extend the time in which to respond to Appellants’ motion to strike is GRANTED. Appellee’s response is due on or before September 28, 2015. /s/ ELIZABETH LANG-MIERS PRESIDING JUSTICE	01-03-2023	09-18-2015
https://www.courtlistener.com/api/rest/v3/opinions/2987538/	Order filed March 7, 2013 In The Fourteenth Court of Appeals ____________ NO. 14-12-00926-CV ____________ JAMES WHITAKER, Appellant V. NEIGHBORHOOD CENTERS, INC., Appellee On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2012-07101 ORDER Appellant’s brief was due February 18, 2013. No brief or motion for extension of time has been filed. Unless appellant submits a brief to the clerk of this court on or before April 5, 2013, the court will dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM	01-03-2023	09-23-2015
https://www.courtlistener.com/api/rest/v3/opinions/3099718/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Jimmy R. Williams v. The State of Texas Appellate case number: 01-13-01054-CR Trial court case number: 1362277 Trial court: 182nd District Court of Harris County Appellant filed a “First Motion for Representation of Self to File Appellant’s Pro Se Brief and Response Without an Attorney.” Within that motion, the appellant stated to the Clerk of this Court that he had no access to the record that his appellate counsel has in his possession. Appellant’s counsel’s motion to withdraw does not state that he sent the record to appellant. Pursuant to Kelly v. State, No. PD-0702-13, --- S.W.3d ----, 2014 WL 2865901, at *4 (Tex. Crim. App. June 25, 2014), we construe appellant’s motion to include a request for the record, grant it, and order the Clerk of this Court to mail the Clerk’s and the Reporter’s Record in this appeal to appellant. Further, we order the appellant to file his response to the Anders brief, if any, within 30 days of the date of this order, with no further extensions permitted. Appellant is further notified that if he fails to submit such a response within 30 days of this order, the Court will decide the motion to withdraw without an Anders response. It is so ORDERED. Judge’s signature: /s/ Laura C. Higley  Date: August 7, 2014	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1891248/	66 B.R. 821 (1986) In re Zenobia ELLIS, Debtor. ILLINOIS DEPARTMENT OF PUBLIC AID, Appellant, v. Zenobia ELLIS, Appellee. No. 85 C 5742. United States District Court, N.D. Illinois, E.D. August 4, 1986. Richard Grossman, James C. O'Connell, Sp. Asst. Attys. Gen., Chicago, Ill., for appellant. Linda Spak, Spak & Associates, Chicago, Ill., for appellee. MEMORANDUM OPINION GRADY, Chief Judge. Currently before the court is the appeal of the Illinois Department of Public Aid (the "Department") from the order of the bankruptcy court enjoining it from pursuing state court proceedings against appellee-debtor Zenobia Ellis ("Ellis") and imposing attorneys' fees and costs against the Department for violating the automatic 822 stay provisions of the Bankruptcy Code. For the reasons stated below, we affirm. FACTS Ellis received public assistance benefits from the Department from December 8, 1978, through November 24, 1980. Brief for Appellant, Appendix A at 1. She filed a petition in bankruptcy under 11 U.S.C. §§ 1301 et seq., ("Chapter 13") on November 3, 1983. Pursuant to that petition, she filed with the bankruptcy court a "wage earner" plan (the "plan") to repay her creditors. The bankruptcy court held a hearing to confirm that plan on November 3, 1983. A meeting of creditors to confirm the plan was held on December 6, 1984. The Department apparently appeared at that meeting and objected to confirmation of the plan. According to the bankruptcy case record, on that day the Department also filed a memorandum with the bankruptcy court objecting to confirmation of the plan. (A copy of that memorandum and the basis of the Department's objections are not in the record on appeal.) The bankruptcy court confirmed the plan over the Department's objections on January 3, 1984. On February 3, 1984, the Department filed a three-count complaint in the Circuit Court of Cook County, Illinois alleging that Ellis had received $9,662.69 in "overissuances." The complaint alleged that Ellis had breached her statutory duty to report a change in her living conditions and/or willfully concealed and failed to report that change. The complaint alternatively alleged that the Department had made an administrative error. Each count sought recovery of the overpayments. On April 10, 1985 Ellis filed a motion with the bankruptcy court for a rule to show cause against the Department for violating Section 362(a) the automatic stay provisions of the Bankruptcy Act.[1] On April 26, 1985, the bankruptcy court found the Department in contempt and entered an order enjoining it from proceeding further in the state court action and ordering the Department to pay Ellis $26.00 in costs and $1,045.00 in attorneys' fees.[2] The order was entered on the bankruptcy docket on May 1, 1985. The Department filed its appeal on May 10, 1985.[3] On appeal the Department argues that its state court action did not violate the automatic stay because it constituted an attempt by a governmental unit to enforce its police and regulatory power which is specifically exempted from the stay under Section 362(b)(4).[4] Section 362(b)(4) excepts from the stay: 823 the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power[.] The Department relies on Section 362(b)(4)'s legislative history and subsequent case law to support its interpretation of "police or regulatory power." Alternatively, it argues that, because its state court complaint sought only entry, not enforcement, of a judgment, its actions did not violate the stay. Ellis argues that the bankruptcy court had exclusive jurisdiction over her estate. She contends that because the Department sought to recover money from her, the purpose of the state suit was to obtain an economic advantage over third parties and the state suit therefore violated the automatic stay. STANDARD OF REVIEW The entry of a contempt order for violation of the automatic stay provisions of section 362(a) is a final appealable order in a core proceeding. 28 U.S.C. § 157(b)(1); 11 U.S.C. § 105; In the matter of Carmen Crum, 55 B.R. 455, 458 (Bkrtcy. M.D.Fla. 1985); In re Indus. Tool Distributors, 55 B.R. 746, 749 (N.D.Ga.1985); Better Homes of Virginia, Inc. v. Budget Services Co., 52 B.R. 426 (E.D.Va.1985). While findings of fact by a bankruptcy judge should not be set aside unless "clearly erroneous," Bankruptcy Rule 8013, the parties on appeal do not dispute the facts. Rather, the question is one of law and we may reach our own conclusions of law. In re Visiting Home Services, Inc., 643 F.2d 1356, 1358-59 (9th Cir.1981); Universal Mineral, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981). DISCUSSION Whenever a petition is filed under any chapter of the Bankruptcy Code, "almost all" efforts by creditors to recover on their claims against the debtor or the debtor's estate are automatically stayed pursuant to Section 362(a). R. Ginsberg, Bankruptcy ¶ 3002 at 3011 (1985) (hereinafter "Ginsberg"). By operation of law, the stay voids all actions taken by creditors outside of the bankruptcy court regardless of whether the creditor knew of the bankruptcy petition. Id. If a creditor knows of the bankruptcy proceeding and, without the bankruptcy court's permission, attempts to enforce a claim against the debtor or his estate in a forum other than the bankruptcy court, the creditor may be found in contempt. See In re Smith Corset Shops, 824 Inc., 696 F.2d 971 (1st Cir.1982); In re Carter, 691 F.2d 390 (8th Cir.1982). In effect, the automatic stay forces creditors into the bankruptcy court and makes them rely on the Bankruptcy Code to enforce their claims. Compared to Chapters 7 and 11, Chapter 13 is more circumscribed in the opportunities it presents creditors to enforce their claims against the debtor or the debtor's estate. For example, Chapter 13 creditors do not have the right to accept or reject confirmation of a plan proposed by the debtor to repay debts. They may, however, attempt to interpose several legal objections to confirmation. For example, if the creditor is secured, it might argue that the plan does not meet the liquidation or surrender requirements of 11 U.S.C. §§ 1325(a)(5)(B), (C). Unsecured creditors who meet the "priority" requirements of 11 U.S.C. § 507 may attempt to argue that the plan fails to provide payment in full over the life of the plan as required by 11 U.S.C. §§ 1322(a)(2), 1325(a)(1). Nonpriority unsecured creditors have little protection; under 11 U.S.C. § 1325(a)(4), a court can confirm a plan even if it fails to provide for repayment to these creditors. See Ginsberg ¶ 1008, at 1019-20 and n. 23 and cases cited therein. Finally, all creditors may argue that the plan has not been proposed in good faith under 11 U.S.C. § 1325(a)(3) or that it is not feasible under 11 U.S.C. § 1325(a)(6). If a plan is confirmed by the bankruptcy court, the debtor must devote his or her best efforts to making the repayments required by the plan during the life of the plan. 11 U.S.C. § 1325(b). But, when all payments required by a plan are completed, the debtor is automatically discharged from: having to pay the unpaid balances of all claims against him or her other than long-term debts that the debtor has cured under the plan . . ., claims for alimony, child support and the like, and certain post-petition debts. All other debts provided for in the plan, regardless of whether they would be dischargeable in a Chapter 7 case, are covered by a Chapter 13 discharge. Therefore, the debtor can use Chapter 13 to avoid claims based on fraud, willful and malicious injuries to persons or property, drunk driving injuries, educational loans and the like. Ginsberg ¶ 1008, at 1020-21 (footnotes omitted). See 11 U.S.C. § 1328(a)(1). Cf. Lee v. Schweiker, 739 F.2d 870 (3d Cir. 1984); In re Neavear, 674 F.2d 1201, 1203-04 (7th Cir.1982) (social security over-payments are dischargeable debts). Creditors who meet the qualifications of 11 U.S.C. § 362(b) are excepted from the automatic stay, however, and may pursue their claims against the debtor or the debtor's estate using their statutory or common law remedies in a nonbankruptcy forum. The debtor or any other party wishing to stop such proceedings must file an adversary proceeding and seek an injunction from the bankruptcy court. 28 U.S.C. § 157(b)(2)(A); 11 U.S.C. § 105(c); Bankruptcy Rules 7001(7), 7065. The party seeking the injunction "must show that the injunction is not only necessary, or at least appropriate to the administration of the bankruptcy case, but that the estate will suffer irreparable harm if the injunction is denied." Ginsberg ¶ 3101, at 3020. In addition, the hardships to the debtor caused by denial of the injunction must outweigh the hardships to the creditor in granting it. Id. For purposes of the Bankruptcy Code, a governmental unit such as the Department is considered to be like any other creditor and is subject to the automatic stay. Lee v. Schweiker, supra, 739 F.2d at 875; In re Nashville White Trucks, Inc., 731 F.2d 376 (6th Cir.1984). But, when a governmental unit commences or continues an action or proceeding to enforce its "police or regulatory power," it is excepted from operation of the stay. 11 U.S.C. § 362(b)(4). When Congress enacted the exception to the automatic stay for governmental units, it intended the exception to be construed narrowly "in order to permit governmental units to pursue actions to protect the public 825 health and safety and not to apply to actions by a governmental unit to protect a pecuniary interest in property of the debtor or property of the estate." 124 Cong.Rec. H11,092 (daily ed. Sept. 28, 1978) (statement of Rep. Edwards). According to the House committee that considered Section 362(b)(4): Paragraph (4) excepts commencement or continuation of actions and proceedings by governmental units to enforce police or regulatory powers. Thus where a governmental unit is suing a debtor to prevent or stop violation of fraud, environmental protection, consumer protection, safety, or similar police or regulatory laws, or attempting to fix damages for violation of such law, the action or proceeding is not stayed under the automatic stay. S.Rep. No. 989, 95th Cong., 2d Sess. 52, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5838; H. Rep. No. 95-595, 95th Cong., 2d Sess. at 343, reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6299. Most courts construing the exception have held that "the term `police or regulatory power' refers to the enforcement of state laws affecting health, welfare, morals, and safety, but not regulatory laws that directly conflict with the control of the res or property by the bankruptcy court." State of Missouri v. United States Bankruptcy Court, 647 F.2d 768, 776 (8th Cir. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1035, 71 L. Ed. 2d 318 (1982); see also Ginsberg ¶ 3103, at 3022. Several courts have suggested that courts employ two tests to determine whether governmental proceedings constitute an exercise of police or regulatory power: the "pecuniary purpose" test and the "public policy" test. See In re Charter First Mortgage, Inc., 42 B.R. 380, 382 (Bkrtcy. Ore.1984) (collecting cases); In re Herr, 28 B.R. 465, 468 (Bkrtcy.Maine 1983). While it is somewhat "elusive," courts applying the pecuniary purpose test "must look to what specific acts the government wishes to carry out and determine if such execution would result in an economic advantage over third parties in relation to the debtor's estate." In re Charter First Mortgage, Inc., supra, 42 B.R. at 382. Generally, these courts hold that "[i]f the focus of the police power is directed at the debtor's financial obligations rather than the state's health and safety concerns, the automatic stay is applicable." In re Sampson, 17 B.R. 528, 530 (Bkrtcy.D.Conn.1982). Thus, a state agency acting as the assignee of wage claims by a debtor's former employees cannot file a wage earner's lien against the debtor. Matter of Napco Graphic Arts, Inc., 51 B.R. 757, 764 (Bkrtcy.E.D.Wis.1985). Similarly, a state housing authority cannot evict a tenant for nonpayment of rent, In re Gibbs, 9 B.R. 758 (Bkrtcy.Conn.1981); a state hospital board cannot revoke a hospital's permission to build a new hospital where the primary factor in the board's decision is the hospital's insolvency, In re King Memorial Hospital, Inc., 4 B.R. 704 (Bkrtcy.S.D.Fla. 1980); and a state liquor control board cannot prohibit liquor wholesalers from making credit sales to the retailer-debtor unless the debtor pays its pre-petition debts, In re Jacobsmeyer, 13 B.R. 298 (Bkrtcy.W.D.Mo.1981). By contrast, courts have held that a state workers' compensation bureau may adjudicate claims of the debtor's employees for workers' compensation benefits where, based on the particular facts of the case, the adjudications did not affect the estate property, In re Mansfield Tire & Rubber Co., 660 F.2d 1108, 1113 (6th Cir.1981). Also, a town may prohibit a debtor-in-possession who owned a restaurant from operating a "disco" without a license, In re Cousins Restaurants, Inc., 11 B.R. 521 (Bkrtcy. W.D.N.Y.1981); a state racing board may deny a debtor's application to conduct horse racing in order to uphold the integrity of the industry, In re Alessi, 12 B.R. 96 (Bkrtcy.N.D.Ill.1981); and a state environmental agency may seek state court injunctive relief and request that bonds be posted to ensure that a polluting coal plant complies with the court's orders, Commonwealth, Dept. of Environmental Resources 826 v. Peggs Run Coal Co. 55 Pa. Cmwlth. 312, 423 A.2d 765 (1980). Instead of the pecuniary purpose test, at least one court has attempted to apply the exception by distinguishing between those proceedings which fulfill a public policy and those which adjudicate private rights. Thus, in In re Dan Hixson Chevrolet Co., 12 B.R. 917, 920 (Bkrtcy.N.D.Tex.1981), the court stayed a state motor vehicle commission from determining whether a debtor-franchisee's franchise should be revoked because of alleged violations of the franchise agreement. The court stayed the proceedings because the state commission was "seeking to adjudicate private rights rather than effectuate public policy." Id. at 921. Other courts have held that suits commenced by governmental units prior to the filing of the bankruptcy petition seeking injunctive as well as monetary relief are excepted from the stay under Section 362(b)(5).[5] These courts have drawn a distinction between entry and enforcement of a judgment, allowing entry but not enforcement. See Illinois v. Electrical Utilities, 41 B.R. 874 (N.D.Ill.1984) (state pollution authorities could seek injunctive relief and could obtain but not enforce a judgment against a polluter); E.E.O.C. v. Rath Packing Co., 37 B.R. 614, 617 (S.D. Iowa 1984) (Equal Employment Opportunity Commission could proceed with a Title VII enforcement action also seeking damages filed before the bankruptcy petition but could not seek enforcement of judgment). Relying on the legislative history quoted supra at 825, which the Department characterizes as the "crux" of its case, Brief for Appellant at 4, the Department argues that the state court action constituted a valid police or regulatory action to prevent or stop a violation of fraud on the welfare system. We disagree. First, we note that the suit filed by the Department against Ellis in no way prevented or stopped her alleged fraud on the Department. As the Department's state court complaint clearly indicates, Ellis did not receive any benefits from the Department after November 24, 1980. Brief for Appellant, Appendix A, Count I ¶ 1. The state proceeding was not commenced until February 3, 1984. At most, the Department might argue that its state suit served to stop or prevent welfare fraud by other recipients in the future. We do not think this is what Congress had in mind, though. Rather, Congress intended to except governmental actions to stop ongoing or continuing frauds or prevent them from happening in the first place. See, e.g., SEC v. First Financial Group, 645 F.2d 429, 437-39 (5th Cir.1981) (proper for district court to appoint receiver in SEC enforcement action "to prevent injury to . . . investors and to prevent further violations of the federal securities laws). Second, we think the Department's reliance on Electrical Utilities is misplaced. In Electrical Utilities, the state commenced an action in federal district court against a polluter seeking injunctive relief and damages. Soon thereafter, the polluter filed a petition in bankruptcy under Chapter 11. The polluter argued that the state's action was automatically stayed because it was no more than an attempt to obtain a money judgment. The court rejected the debtor's argument and allowed the pollution suit to proceed, holding that the state could obtain but not enforce a judgment against the debtor. "If and when the state gets a judgment against [the debtor] requiring it to expend resources, the state will become a creditor like those presently before the bankruptcy court." 41 B.R. at 877. The case is distinguishable, however, because it is clear that 827 the court based its conclusion on Section 362(b)(5), not Section 362(b)(4). As we noted supra at note 5, Section 362(b)(5) excepts actions by governmental units to enforce their police or regulatory power only where the governmental unit filed its suit before the debtor filed his or her bankruptcy petition. Here, the Department's suit was commenced after Ellis filed her Chapter 13 petition and Section 362(b)(5) is therefore inapplicable. We also believe Electrical Utilities and cases like it are distinguishable on a second ground. A close reading of Electrical Utilities and similar cases reveals a concern that the various debtors were attempting to escape disagreeable laws or regulations by filing bankruptcy petitions. See, e.g., E.E.O.C. v. Rath Packing, supra, 37 B.R. at 616-17 ("the exclusive authority of plaintiff to enforce federal law and policy against discrimination would be obstructed by the escape mechanism that § 362(a) would provide if EEOC enforcement actions would be stayed on the filing of a bankruptcy petition"). Here, Ellis stopped receiving her benefits from the Department on November 24, 1980, but she waited almost three years to file her Chapter 13 petition on November 3, 1983. There was no evidence produced that she in fact filed her petition because the Department was hotly pursuing the alleged overpayments. We find the second case upon which the Department relies, In re Herr, similarly distinguishable. There, the debtor filed a Chapter 7 petition and was subsequently notified by the state unemployment agency that he had received overpayments. After an initial administrative proceeding, it was determined that the debtor had indeed received overpayments and the state bureau disqualified him from receiving benefits for six months. In addition, it was determined that he had received $312.00 in overpayments. The debtor eventually sought and was granted a preliminary injunction from the bankruptcy court prohibiting the state bureau from taking any administrative actions to recover the overpayments. The bankruptcy court subsequently reversed itself, however, and denied the debtor a permanent injunction, holding that Section 362(b)(4) excepted the administrative proceedings as an exercise of the state's police or regulatory power. Relying on the legislative history quoted supra at 825, the bankruptcy court held that the administrative proceeding was an action to stop a violation of Maine's fraud law and an attempt to fix damages for that violation. 28 B.R. at 469. We think In re Herr is distinguishable, though, because it appears the debtor continued receiving or at least continued to be eligible to receive unemployment benefits during the bankruptcy proceedings. This apparently is why the state bureau disqualified the debtor from receiving benefits for six months. Therefore, the case represents an effort to stop a continuing violation of state fraud laws.[6] Here, as we previously *828 noted, the alleged fraud stopped almost three years before Ellis filed her Chapter 13 petition. Thus, the Department cannot fit its state court suit into Section 362(b)(4)'s exception for actions to stop continuing fraudulent activities. See supra at 826. To summarize, the record shows that the Department learned of Ellis' overpayments when she listed her debt to the Department in her plan. April 24, 1985 Transcript of Proceedings at 5. The Department appeared at the hearing held to confirm the plan submitted by Ellis. Not satisfied with the result, the Department then sought relief from state court. Clearly the Department was attempting to assert what it viewed as its financial rights in the debtor's estate; the Department's interest was pecuniary. By doing so the Department may have wanted to send a clear signal to persons who might attempt to cheat the welfare system. This desire is understandable, but the Department, like any other creditor in a bankruptcy proceeding, must avail itself of its bankruptcy remedies. While creditor remedies are admittedly limited in a Chapter 13 proceeding,[7] the Department could have appealed the finding of the bankruptcy court that Ellis' wage earner plan was proposed in good faith. See In re Rimgale, 669 F.2d 426, 431-32 (7th Cir.1982) (nonexclusive listing of factors to be used in determining whether debtor proposed plan in good faith). See also Ginsberg, ¶ 14,404, at 14,041. Or, the Department on appeal could have attempted to show that the plan was not feasible. Finally, the Department might have filed a motion with the bankruptcy court to revoke confirmation of the plan on the basis that it was obtained by fraud. 11 U.S.C. 1330(a). If the bankruptcy court had so found, it could have converted the petition to one under Chapter 7 and Ellis' debt to the Department would not have been subject to discharge. See note 7 supra. The Department pursued none of these options. Instead, it attempted to advance its pecuniary interest by circumventing federal bankruptcy jurisdiction. It therefore violated the automatic stay provisions of Section 362(a)(1) and the bankruptcy court properly imposed attorney's fees and costs against the Department under Section 362(h). CONCLUSION The order of the bankruptcy court holding the Department in contempt and imposing fees and costs under Section 362(h) is affirmed. NOTES [1] Under 11 U.S.C. § 362(a), the filing of a bankruptcy petition operates as a stay against: (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under [the Bankruptcy Code], (2) the enforcement, against the debtor or against the property of the estate, of a judgment obtained before the commencement of the case [under the Bankruptcy Code.] Ellis filed her motion under Section 362(a)(1). [2] Under 11 U.S.C. § 362(h): An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages. [3] The Department filed its appeal in a timely fashion. Under Bankruptcy Rule 9006(a), a notice of appeal from a decision of a bankruptcy judge must be filed within ten days of the date of the entry of the order or judgment. The date that the order or judgment is actually entered on the docket is the date of entry for purposes of Rule 9006(a). See Bankruptcy Rule 5003(a). Here, the contempt order was entered on the docket on May 1, 1985, and the Department's notice of appeal was filed on May 10, 1985. [4] We note that the Department has not argued that, because the order awarding fees constituted a suit against a state by one of its citizens seeking a money judgment, the assessment of fees violated the Eleventh Amendment. We have found no cases which have addressed an Eleventh Amendment claim in the context of a violation of the automatic stay provisions of the Bankruptcy Code. A number of cases have held that states may not rely on the Eleventh Amendment to object to the discharge of debts for social services previously received by debtors, however. See, e.g., In re Glidden, 653 F.2d 85, 89 (2d Cir.1981) cert. denied, 454 U.S. 1143, 102 S. Ct. 1003, 71 L. Ed. 2d 295 (1982) (discharge of child support obligations owed to the state); Matter of Crisp, 521 F.2d 172 (2d Cir.1975) (discharge of debt owed to state for hospital services). In one case, In re Goldrich, 45 B.R. 514, 12 B.C.D. 729 (Bkrtcy.E.D.N.Y.1984), the court held that a former debtor in a Section 1983 action could "probably" be awarded attorney's fees, "despite the bar of the Eleventh Amendment," where he alleged that he had been denied a student loan by the state because his previous loan had been discharged in bankruptcy. 45 B.R. 514, 12 B.C.D. at 734, citing Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978). The Second Circuit ultimately reversed on other grounds, though. 771 F.2d 28 (2d Cir.1985). Nevertheless, we think language from Hutto, which the bankruptcy court in Glidden relied on, supports the view that the Eleventh Amendment does not bar imposition of attorney's fees in this case. In Hutto, the district court assessed fees against a state corrections department, to be paid out of the department's funds, because the department had not complied with earlier orders to remedy cruel and unusual prison conditions. Affirming, the Supreme Court noted: [F]ederal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. Many of the court's most effective weapons involve financial penalties. . . . If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of ensuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail. The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief. In this case, the award of attorney's fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. . . . Hutto, 437 U.S. at 690-91, 98 S. Ct. at 2573. See also Note, Attorney's Fees and the Eleventh Amendment, 88 Harv.L.Rev. 1875, 1892 (1975). Here, the bankruptcy court imposed attorney's fees for the Department's knowing violation of the automatic stay. See supra note 2. The order served a remedialas well as a deterrent purpose and therefore satisfies Hutto. [5] It is important to distinguish between the exception provided in Section 362(b)(4) and the exception in Section 362(b)(5). Section 362(b)(4) excepts from the stay judicial or administrative proceedings to enforce a governmental unit's police or regulatory power that could have been commenced before the bankruptcy petition was filed. Section 362(b)(5) excepts from the stay enforcement of a judgment actually obtained by a governmental unit to enforce its police or regulatory powers before the debtor filed his or her bankruptcy petition. See 11 U.S.C. §§ 362(a)(1) and (2). [6] Moreover, we think Herr was wrongly decided because it is clear that the state, by instituting the administrative proceeding to recover the overpayments, was attempting to improve its position in the debtor's property with respect to other creditors. In essence, it was attempting to convert itself from a general unsecured creditor to a form of judgment creditor. The very purpose of the automatic stay is to force parties into the bankruptcy court to determine their rights as of the time the debtor filed his or her bankruptcy petition. This has been recognized by a line of casesignored by Herr and the Departmentholding that the Social Security Administration must recover overpayments through the bankruptcy process, not through separate administrative proceedings under which the government deducts the overpayments from current benefits. See, e.g., Lee v. Schweiker, 739 F.2d 870, 876 (3d Cir.1984); In re Neavear, 674 F.2d 1201 (7th Cir.1982); In re Hawley, 23 B.R. 236 (Bkrtcy.E.D.Mich.1982); In re Rowan, 15 B.R. 834 (Bkrtcy.N.D.Ohio 1981) aff'd, 747 F.2d 1052 (6th Cir.1984); In re Howell, 4 B.R. 102 (Bkrtcy.M.D.Tenn.1980). As the Third Circuit noted in Lee: Social welfare payments, such as social security, are statutory "entitlements" rather than contractual rights. The purpose of these payments is to provide income to qualifying individuals. Although the paying agency can ordinarily recover overpayments, just as creditors can ordinarily obtain payments from a debtor's future income, the Bankruptcy Code protects a debtor's future income from such claims once a petition has been filed, and the SSA violated the automatic stay in continuing to withhold part of Lee's benefits after she had filed her petition. 739 F.2d at 876. [7] As noted supra at 824, once a Chapter 13 debtor completes all payments provided for in the plan, all debts scheduled or listed in the plan are discharged. By comparison, an individual Chapter 7 debtor cannot obtain a discharge for debts based on the debtor's "fraud, false pretenses, misrepresentation or based on a false financial statement." 11 U.S.C. § 523(a)(2). Courts have noted this distinction and "have made it clear that the fact that the debtor is using Chapter 13 to get out of debts the debtor cannot get out of in Chapter 7 is a factor to be considered in determining whether the debtor's use of Chapter 13 is in good faith." Ginsberg ¶ 14,504 at 14,059.	01-03-2023	10-30-2013