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https://www.courtlistener.com/api/rest/v3/opinions/996932/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-1833
S. REBECCA DACHMAN,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
97-4352-PJM)
Submitted: November 5, 1998 Decided: November 18, 1998
Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Rebecca Dachman, Appellant Pro Se. George Levi Russell, III,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
S. Rebecca Dachman appeals the district court’s order dismiss-
ing this civil action. We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we
affirm on the reasoning of the district court. Dachman v. United
States, No. CA-97-4352-PJM (D. Md. May 5, 1998). 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.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4539919/ | FILED
06/05/2020
06/08/2020
Bowen Greenwood
CLERK OF THE SUPREME COURT
STATE OF MONTANA
Case Number: DA 20-0052
IN THE SUPREME COURT OF THE STATE OF MONTANA
Supreme Court Cause No. DA 20-0052
GARY AND CAROLYN KAUL,
Plaintiffs and Appellants,
v. GRANT OF EXTENSION
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant and Appellee.
Appellee State Farm Mutual Automobile Insurance Company (“State Farm”)
has requested a 30-day extension from June 5, 2020, up to and including July 6,
2020, to file its Response Brief in this matter. Good cause appearing therefore,
IT IS HEREBY ORDERED that Appellee State Farm shall have until and
including July 6, 2020, within which to file its Response Brief.
Electronically signed by:
2992898 Bowen Greenwood
Clerk of the Supreme Court
June 5 2020 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3063003/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13572 ELEVENTH CIRCUIT
APRIL 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00031-CR-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID OTERO CRUZ,
a.k.a. Fredy Jahir Cruz,
a.k.a. David Cruz Otero,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 2, 2010)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
David Otero Cruz appeals his sentence of 80 months’ imprisonment, which
the district court imposed following Cruz’s plea of guilty to one count of illegal
reentry into the United States following deportation or removal for an aggravated
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Cruz argues that
the district court erred when it added one criminal history point for a sentence
imposed following a February 2005 Georgia misdemeanor conviction for
possession of alcoholic beverages by a person below the legal age. He asserts that
this conviction was presumptively void because he was not represented by counsel
when he pled guilty, and did not knowingly and voluntarily waive his right to
counsel. Cruz also argues that his 30-month sentence is procedurally and
substantively unreasonable.
I.
We review a district court’s application of the Sentencing Guidelines de
novo. United States v. Baker, 116 F.3d 870, 872 (11th Cir. 1997).
As a general rule, a sentencing court may not examine the constitutionality
of a prior state court conviction being used to enhance a defendant’s sentence.
United States v. Cooper, 203 F.3d 1279, 1287 (11th Cir. 2000). Nevertheless,
when a defendant “sufficiently asserts facts that show that an earlier conviction is
‘presumptively void,’ the Constitution requires the sentencing court to review this
2
earlier conviction before taking it into account.” United States v. Roman, 989 F.2d
1117, 1120 (11th Cir. 1993) (en banc). The defendant must present enough to “lay
a factual foundation for collateral review” of the prior conviction. Id.
The Supreme Court has held that an indigent criminal defendant does not
have a right to appointed counsel in a case involving a misdemeanor conviction for
which no term of imprisonment was imposed. Scott v. Illinois, 440 U.S. 367, 373-
74 (1979). In so holding, the Court explained that “actual imprisonment is a
penalty different in kind from fines or the mere threat of imprisonment.” Id. at
373. The Supreme Court additionally has held that “an uncounseled misdemeanor
conviction, valid under Scott because no prison term was imposed,” may be used to
enhance a defendant’s punishment following a subsequent conviction. Nichols v.
United States, 511 U.S. 738, 749 (1994). Based on these Supreme Court decisions,
we have held that a district court should include uncounseled misdemeanor
sentences for which no term of imprisonment was imposed in calculating a
defendant’s criminal history score. Baker, 116 F.3d at 872; see also U.S.S.G.
§ 4A1.2, comment. (backg’d) (same).
In this case, Cruz challenges the district court’s imposition of one point to
his criminal history score based upon his February 2005 Georgia misdemeanor
conviction and sentence of a $200.00 fine for possession of alcoholic beverages by
3
a person below the legal age. Based on Supreme Court and this circuit’s precedent,
even if Cruz was not represented by counsel when he pled guilty to the
misdemeanor charge, he was only sentenced to pay a $200.00 fine, and thus, the
district court did not err in adding one criminal history point for that sentence.
II.
Cruz also challenges the procedural and substantive reasonableness of his
sentence. We review a sentence imposed by a district court for reasonableness,
using an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274,
1278 (11th Cir. 2009). In reviewing the reasonableness of a sentence, we must
ensure, first, “that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). The district court
is not required to specifically discuss each § 3553(a) factor, provided that it is clear
from the record that the court considered all of the factors. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005).
In this case, the district court followed the proper procedures in determining
Cruz’s sentence. Although Cruz asserts that the court focused exclusively on his
4
criminal history, and failed to consider the other § 3553(a) factors, the district court
stated that it had given careful consideration to all of the § 3553(a) factors, and
specifically cited the nature and circumstances of the offense, Cruz’s history and
characteristics, and the need for the sentence to reflect the seriousness of the
offense, provide deterrence, and protect the public. Thus, the record indicates that
the court considered all of the statutory factors.
We also cannot state that Cruz’s 80-month sentence is substantively
unreasonable. Cruz was removed to Mexico in April of 2007 after he was
convicted of an aggravated assault charge which stemmed from an incident where
he had fired a gun at a moving vehicle. Cruz returned to the United States shortly
after his removal, and continued his involvement in criminal activity becoming
involved with SUR-13, a criminal street gang. He was arrested on a second
aggravated assault charge after he allegedly fired a handgun at three individuals.
We cannot state that the district court abused its discretion in sentencing Cruz to a
term of 80 months imprisonment.
AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063004/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 2, 2010
No. 08-16947 JOHN LEY
________________________ CLERK
D. C. Docket No. 06-00155-CR-2-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRINSON ALLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 2, 2010)
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Brinson Allen appeals his convictions and sentence for conspiring to commit
bank fraud, 18 U.S.C. §§ 1344, 1349, bank fraud, id. § 1344, and making false
statements in a credit application, id. § 1014. Allen’s convictions stem from his
participation as a straw borrower and purchaser in a fraudulent scheme operated by
his wife. Allen challenges the sufficiency of the evidence to support his
convictions, the calculation of the loss that he intended to cause, the denial of his
request for a sentencing reduction based on his minor role in the offense, and the
procedural and substantive reasonableness of his sentence. After careful review,
we affirm.
I. BACKGROUND
Allen’s wife, Adriene Newby-Allen, operated an extensive mortgage fraud
scheme in which she defrauded banks into loaning her millions of dollars to
purchase real estate in the Atlanta, Georgia, area at inflated sales prices. Allen
participated in the scheme as a straw borrower and purchaser; he purchased real
estate in his name by obtaining loans based on false qualifying information. Two
of the banks that Allen and Newby-Allen attempted to defraud became suspicious
and notified the Federal Bureau of Investigation.
Agents worked with the banks to plan a sting closing for Allen’s attempted
purchase of the house at 320 Longvue Court, and agents arrested Allen at the
closing. Allen was indicted for conspiring to commit bank and wire fraud, 18
U.S.C. §§1343–44, 1349; four counts of bank fraud, id. § 1344; making false
2
statements in a credit application, id. § 1014; and making false statements in a loan
application, id. At trial, the government presented evidence that Allen participated
in several fraudulent transactions, but only two transactions are relevant to this
appeal.
The government presented evidence that Allen attempted to purchase the
house at 320 Longvue Court. The list price for the house was $1.639 million, but
Allen and Newby-Allen entered into a contract to purchase it for $3.3 million. The
sales contract provided that the sellers would receive $1.65 million and that the
remaining $1.65 million would be placed in escrow to be used for repairs. Allen
applied for mortgage loans to fund the transaction. The loan applications falsely
represented Allen’s employment, income, and assets, and falsely reported that
Allen owned certain real estate. Allen testified that a loan officer, J. Lynn, who
was also a participant in the scheme, brought the loan applications to Allen’s
house, showed Allen where to sign and initial the applications, and left the
applications with Allen while Newby-Allen gave Lynn a tour of the house. Allen
reviewed the applications “very quickly” and signed them before Lynn returned
from the tour.
To facilitate the sting operation, Southstar Funding and Citibank approved
loans to Allen that totaled $2.475 million and scheduled a closing for March 13,
3
2006. Both Allen and Newby-Allen attended the closing. Yetta Ellman, the
sellers’ agent, testified that the HUD-1 settlement statement that was prepared for
the closing incorrectly stated that the entire $3.3 million contract price would be
paid to the sellers. At the closing, Ellman mentioned the error and stressed that the
parties should not proceed with the closing until the HUD-1 settlement statement
was corrected to state that $1.65 million would be placed in escrow. Newby-Allen
responded that the sellers could write Allen a check for the excess amount after the
closing, but Ellman told her that transaction would be inappropriate.
Allen signed the errroneous HUD-1 settlement statement. He never asked
the closing attorney to correct the settlement statement or to place any funds in
escrow. Allen also signed the final loan applications after the closing attorney
advised him to make sure the numbers were “roughly right.” Allen testified that he
quickly reviewed the application documents before he signed them, but he denied
knowing that they contained false representations. He also testified that he
believed the excess loan proceeds would be used for “renovations” and “upgrades”
of the property.
The government also presented evidence that Allen guaranteed a $50,000
line of credit from Bank of America for Newby-Allen’s shell company, F&R
Computer Solutions. Allen testified that he agreed to guarantee the line of credit
4
because he knew that Newby-Allen would be unable to qualify on her own and he
believed Newby-Allen would make all necessary payments on the loan. The
application information that Newby-Allen provided to Bank of America contained
several misrepresentations about F&R Computer Solutions. A representative from
Bank of America testified that its policies require the guarantor to be physically
present at the closing, to provide two forms of identification, and to sign the
promissory note. Bank of America scheduled and held a closing, and the final
promissory note purportedly was signed by Allen, on behalf of F&R Computer
Solutions. Allen testified that he did not know the application contained false
statements, that he did not attend the closing, and that he never signed the
promissory note. Allen also testified that he and Newby-Allen agreed to pay a
broker $10,000 for his assistance in obtaining the loan.
After a two-week trial, the jury convicted Allen of conspiring to commit bank
fraud, 18 U.S.C. §§ 1344, 1349; one count of bank fraud (based on his attempted
purchase of the house at 320 Longvue Court), id. § 1344; and making false
statements in a credit application, id. § 1014. The jury acquitted Allen of two
counts of bank fraud and of making false statements in a loan application. The jury
was unable to reach a verdict on a third count of bank fraud.
The district court sentenced Allen to 37 months of imprisonment on each of
5
his three convictions, to run concurrently, as well as five years of supervised
release. The advisory guidelines provided a sentencing range of 37 to 46 months
of imprisonment. The sentencing range included an enhancement of 14 levels to
Allen’s base offense level of seven because the district court found that Allen
intended a loss on the Longvue Court transaction of $825,000. See United States
Sentencing Guidelines § 2B1.1(b)(1)(H) (Nov. 2008). The district court denied
Allen’s request for a reduction in his offense level based on his minor role in the
offense. See id. § 3B1.2.
II. STANDARDS OF REVIEW
We apply four standards of review in this appeal. First, we review de novo
whether sufficient evidence supports a conviction. United States v. Silvestri, 409
F.3d 1311, 1327 (11th Cir. 2005). We view the evidence in the light most
favorable to the government, and we make all reasonable inferences and credibility
determinations in favor of the government. Id. “A conviction must be upheld
unless the jury could not have found the defendant guilty under any reasonable
construction of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351
(11th Cir. 1999). Second, we review for clear error determinations under the
Guidelines as to the amount of actual or intended loss. United States v. Grant, 431
F.3d 760, 762 (11th Cir. 2005). Third, we review for clear error findings as to a
6
defendant’s role in the offense. United States v. Griffin, 945 F.2d 378, 385 (11th
Cir. 1991). Fourth, we review a sentence for procedural and substantive
reasonableness under an abuse of discretion standard. United States v. Livesay,
587 F.3d 1274, 1278 (11th Cir. 2009).
III. DISCUSSION
Allen presents four arguments on appeal. We discuss each argument in turn.
All of Allen’s arguments fail.
A. Sufficient Evidence Supports Allen’s Convictions.
Allen’s argument that the evidence was insufficient to support his
convictions for bank fraud and conspiracy to commit bank fraud fails. To prove
bank fraud under section 1344, “the Government must prove specific intent to
defraud.” United States v. Goldsmith, 109 F.3d 714, 716 (11th Cir. 1997). Allen
concedes that a scheme to defraud existed, but he contends that the government
failed to prove that he was a knowing and intentional participant in that scheme to
defraud. A reasonably jury could have found from the circumstances of the
Longvue Court transaction that Allen knew that the loan applications he signed
contained materially false representations and that Allen intended to further the
scheme through his participation. See United States v. Williams, 390 F.3d 1319,
1325 (11th Cir. 2004) (noting that “circumstantial evidence may prove knowledge
7
and intent”). Additionally, the jury could have disbelieved Allen when he testified
that he neither knew about the false representations on the loan applications nor
shared his wife’s fraudulent intent. See United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995).
Allen’s argument that the evidence was insufficient to support his conviction
for making false statements in a credit application also fails. Section 1014 makes it
a crime to “‘knowingly mak[e] any false statement or report . . . for the purpose of
influencing in any way the action’ of a Federal Deposit Insurance Corporation
insured bank.” United States v. Wells, 519 U.S. 482, 489–90, 117 S. Ct. 921,
926–27 (1997) (quoting 18 U.S.C. § 1014). Allen contends that the government
failed to prove that he signed any documents in connection with the application for
the line of credit or that he knew that the documents contained false
representations. The government, however, presented evidence that Bank of
America requires the guarantor of a loan physically to attend the closing and
present two forms of identification, that a closing was held, and that the promissory
note for the line of credit purported to contain Allen’s signature. A reasonable jury
could have found from this evidence that Allen attended the closing and signed the
promissory note. A reasonable jury also could have found that Allen knew the
credit application contained false qualifying information because Allen was aware
8
that his wife had paid a broker an exorbitant fee in exchange for his assistance in
obtaining the loan. See Williams, 390 F.3d at 1325. Additionally, the jury could
have disbelieved Allen when he testified that he never signed any documents to
obtain the line of credit and that he did not know the application contained false
representations. See Brown, 53 F.3d at 314.
B. The District Court Did Not Clearly Err in Calculating the Loss Amount.
Allen argues that the district court erred when it found by a preponderance
of the evidence that he intended to cause a loss of $825,000, which is the
difference between the amount of the loans and the value of the collateral for the
loans, on the Longvue Court transaction and increased his offense level under
section 2B1.1(b) on that basis. Allen contends that he did not intend to cause any
loss on the Longvue Court transaction because he and Newby-Allen planned to use
the excess loan proceeds to improve the property, which would have increased the
value of the collateral for the loans. We disagree.
The district court did not clearly err when it found that Allen intended a loss
of $825,000. Although the sales contract provided that $1.65 million would be
placed in escrow for repairs, the HUD-1 settlement statement, which Allen signed
at the closing, provided that the sellers would receive $3.3 million. Neither Allen
nor Newby Allen corrected the settlement statement or asked the closing attorney
9
to make sure the excess loan proceeds would be placed in escrow. Quite the
contrary, Newby-Allen told the sellers that they could write Allen a check after the
closing to settle the difference. The district court did not clearly err in finding that
Allen intended to pocket the excess loan proceeds, not use the proceeds to improve
the property.
C. The District Court Did Not Clearly Err by Denying Allen a Sentencing
Reduction Based on His Minor Role in the Offense.
Allen contends that the district court clearly erred by denying his request for
a reduction in his offense level of at least two levels under section 3B1.2(b). In
determining whether a defendant is entitled to a reduction for his mitigating role in
the offense, the district court should “measure the defendant’s role against the
relevant conduct for which []he was held accountable at sentencing,” and then the
district court should “measure the defendant’s role against the other participants . .
. in that relevant conduct.” United States v. Rodriguez De Varon, 175 F.3d 930,
939 (11th Cir. 1999) (en banc).
The district court did not clearly err by denying Allen a reduction under
section 3B1.2(b). At sentencing, Allen was held accountable only for the Longvue
Court transaction and the line of credit from Bank of America. Although his role
in those transactions was less substantial than that of Newby-Allen or Lynn, his
participation nonetheless was integral to the success of the scheme. See United
10
States v. Boyd, 291 F.3d 1274, 1277–78 (11th Cir. 2002). “[T]he fact that a
particular defendant may be least culpable among those who are actually named as
defendants does not establish that he performed a minor role in the conspiracy.”
United States v. Zaccardi, 924 F.2d 201, 203 (11th Cir. 1991).
D. Allen’s Sentence is Reasonable.
Allen contends that his sentence is procedurally unreasonable because the
district court incorrectly determined the amount of intended loss, denied his
request for a minor-role reduction, and treated the Guidelines as mandatory instead
of advisory. Allen’s first two arguments fail for the reasons explained above. His
third argument also fails.
After careful review of the record, we are satisfied that the district court had
a reasoned basis for imposing the sentence that it did. The district court did not
treat the Guidelines as mandatory. Treating the Guidelines as mandatory
constitutes procedural error, Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007), but the district court need only “set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).
Allen also challenges the substantive reasonableness of his sentence. In
11
reviewing whether a sentence is substantively reasonable, we “take into account
the totality of the circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597. Because Allen’s
sentence of 37 months of imprisonment is within the guidelines range, we “may,
but [are] not required to, apply a presumption of reasonableness.” Id. We easily
conclude that Allen’s sentence of 37 months of imprisonment—a sentence at the
bottom of his guidelines range—is substantively reasonable.
IV. CONCLUSION
We AFFIRM Allen’s convictions and sentence.
12 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063006/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12905 ELEVENTH CIRCUIT
APRIL 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A094-911-744
MARIA TOMAS JUAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 2, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Maria Tomas Juan, a native and citizen of Guatemala, proceeding pro se,
appeals the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying her application for asylum, withholding
of removal under the Immigration and Nationality Act (“INA”), and relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (“CAT”). INA §§ 208, 241; 8 U.S.C. §§
1158, 1231; 8 C.F.R. § 208.16(c). On appeal, Tomas Juan argues that the BIA
erroneously denied her asylum application because there are extraordinary
circumstances, namely the fact that she entered the United States at age thirteen,
that excuse the untimely filing of her petition. She further argues that she suffered
past persecution on account of a protected ground because she is a member of a
particular social group, the Mayans, and she suffered persecution at the hands of
guerrillas who attacked her village.
We deny Tomas Juan’s petition for the following reasons. First, we do not
have jurisdiction over her asylum claim. The IJ determined that Tomas Juan failed
to file an asylum application within one year of her arrival in the United States in
accordance with INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), or present
extraordinary or changed circumstances to excuse her untimeliness pursuant to
INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Thereafter, Tomas Juan failed to
2
challenge this determination before the Board.1 Accordingly, we lack jurisdiction
to consider her claim that her youth at the time of entry, limited education, lack of
proficiency in the Spanish language, and economic circumstances qualify as an
exception to the one-year deadline. Amaya-Artunduaga v. U.S. Atty. Gen., 463
F.3d 1247, 1250 (11th Cir. 2006) (“[W]e lack jurisdiction to consider claims that
have not been raised before the BIA.”) (quotation omitted). Moreover, even if
Tomas Juan had appealed the IJ’s determination before the BIA, we would still
lack jurisdiction to consider her claims regarding extraordinary and changed
circumstances. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir.
2005) (per curiam) (“8 U.S.C. § 1158(a)(3) divests our Court of jurisdiction to
review a decision regarding whether an alien complied with the one-year time limit
or established extraordinary circumstances that would excuse his untimely filing.”)
(quotation omitted). Therefore, we dismiss Tomas Juan’s petition for asylum due
to lack of jurisdiction.
We also deny Tomas Juan’s petition for withholding and CAT relief because
she is unable to satisfy the “more stringent” standards governing these claims. See
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007)
(quotation omitted) (“To qualify for withholding of removal or CAT relief, an alien
1
Although the BIA noted its agreement with the IJ’s denial of Tomas Juan’s
asylum application due to untimely filing, it also noted that Tomas Juan did not challenge this
determination on appeal.
3
must establish standards more stringent than those for asylum eligibility.”). In
addition to demonstrating past or future persecution, to qualify for withholding of
removal, an alien must demonstrate that it is more likely than not that her life or
freedom would be threatened on account of race, religion, nationality, membership
in a particular social group, or political opinion if removed. INA §241(b)(3), 8
U.S.C. § 1231(b)(3); Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir.
2006). CAT relief is only available where an alien can demonstrate a likelihood
that she will be tortured at the “acquiescence” of the government upon return to her
home country. Rodriguez Morales, 488 F.3d at 891.
Where the BIA issues its own opinion, as here, we review only that decision.
Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009) (quotation omitted).
We review the BIA’s findings of fact under the “highly deferential” substantial
evidence test, which requires that we affirm the BIA’s decision if it is “supported
by reasonable, substantial, and probative evidence on the record considered as a
whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005)
(quotation omitted). Thus, we may reverse “only when the record compels a
reversal; the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Mehmeti v. U.S. Att’y
Gen., 572 F.3d 1196, 1199 (11th Cir. 2009) (emphasis added).
4
Even if Tomas Juan could show that she suffered past persecution on
account of a protected ground, she cannot show that it is more likely than not that
her life or freedom would be threatened upon removal to Guatemala, or that she
will be tortured at the acquiescence of the government. The BIA correctly found,
in accordance with the record, that the guerrillas and the government of Guatemala
signed peace accords which ended the civil war in 1996, the very year in which
Tomas Juan fled her country. In light of these changed political circumstances,
there is nothing in the record to demonstrate a likelihood of future persecution.
Substantial evidence supports the BIA’s decision, and the record does not compel
reversal.
PETITION DENIED IN PART, DISMISSED IN PART.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063007/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11568 APR 2, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-21737-CV-JLK
CRISTOBAL NAVARRO,
and all others similarly situated,
Plaintiff-Appellant,
versus
SANTOS FURNITURE CUSTOM DESIGN, INC.,
DOMINGO SANTOS,
ROBERTO SANTOS,
ROSA M. SANTOS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 2, 2010)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD,*
District Judge.
EDENFIELD, District Judge:
Appellant Cristobal Navarro brought a claim for unpaid overtime wages
pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., against
Appellees Santos Furniture Custom Design (“Santos Furniture”), Roberto Santos,
Domingo Santos, and Rosa Santos. At trial, the district court granted Appellees’
motion for judgment as a matter of law as to Domingo and Rosa Santos, and the jury
ultimately returned a verdict in favor of Appellees Santos Furniture and Roberto
Santos. Navarro now appeals the district court’s dismissal of Domingo Santos and
Rosa Santos, as well as the jury verdict. He asserts that both rulings were the result
of the district court’s improper application of the time limitation set forth in 29 U.S.C.
§ 255(a).
In his complaint, Navarro sought damages for unpaid overtime wages spanning
his fourteen-year employment with Santos Furniture. Section 255(a) of the FLSA
provides, in pertinent part: “Any action . . . to enforce any cause of action for unpaid
minimum wages, unpaid overtime compensation, or liquidated damages, under the
Fair Labor Standards Act . . . may be commenced within two years after the cause of
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
2
action accrued, and every such action shall be forever barred unless commenced
within two years after the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced within three years after the cause
of action accrued.” 29 U.S.C. § 255(a).
At trial, Navarro introduced testimony in an attempt to show that Domingo and
Rosa Santos qualified as employers under the FLSA. Following the close of
Navarro’s case-in-chief, Appellees moved the court for judgment as a matter of law
as to the individual liability of Domingo and Rosa Santos. Appellees urged that, at
most, they could only be liable for lost wages for the period beginning three years
prior to the filing of the complaint, and it was undisputed that Navarro had not
presented any evidence that Domingo and Rosa Santos had exercised active
supervisory control over Santos Furniture during that three-year period. The district
court agreed and granted the motion, dismissing Domingo and Rosa Santos as
defendants. The trial continued as to Santos Furniture and Roberto Santos. The
district court instructed the jury as follows:
The Plaintiff is entitled to recover lost wages from the present time back
to no more than two years before this lawsuit was filed on June 18,
2008, unless you find the employer either knew, or showed reckless
3
disregard for the matter of whether its conduct was prohibited by the
FLSA. If you find that the employer knew, or showed reckless disregard
for the matter of whether its conduct was prohibited by the FLSA, the
Plaintiff is entitled to recover lost wages from the present time back to
no more than three years before this lawsuit was filed.
The jury answered “no” to the first question on the verdict form, concerning whether
Appellees failed to pay Navarro overtime wages as required by law. Thereafter,
Navarro filed this appeal.
On appeal, Navarro urges that the district court’s application of § 255(a)’s
limitation was improper because Appellees had waived the limitation by failing to
properly plead it in their Answer. Appellees, on the other hand, urge that § 255(a) is
not a traditional statute of limitations that must be raised as an affirmative defense.
In the alternative, they claim that they adequately raised the limitation in their Answer
and in the pretrial stipulations submitted to the district court.
The Court reviews a district court’s instructions to the jury for abuse of
discretion. U.S. v. Lopez, 590 F.3d 1238, 1247-48 (11th Cir. 2009). The Court
reviews de novo a district court’s grant of a F.R.Civ.P. 50 motion for judgment as a
matter of law. D’Angelo v. Sch. Bd., 497 F.3d 1203, 1208 (11th Cir. 2007).
4
This Court has held that the § 255(a) statute of limitations is “an affirmative
defense which must be specifically pled.” Day v. Liberty Nat’l Life Ins. Co., 122 F.3d
1012, 1015 (11th Cir. 1997) (citing F.R.Civ.P. 8(c)).1 In Day, the Court ruled that the
defendant had waived the § 255(a) statute of limitations by failing to assert it until
after the jury had rendered a verdict. As a result, the Court reversed the district
court’s grant of a judgment notwithstanding the verdict based on the statute of
limitations defense. Id. at 1015-16 The Day Court emphasized the fact that the
defendant’s failure to raise the defense until after the jury rendered a verdict deprived
the plaintiff of the opportunity to contest the application of the limitation. Id. at 1015
(“[I]f [the defendant] had brought the limitations issue to the court during the . . . trial,
[the plaintiff] could have offered evidence that the statute was tolled during some
period of time, or have insisted that the jury instructions reflect the effect of the
statute of limitations on any possible recovery by him.”). In finding a waiver, the Day
Court relied on the Fifth Circuit’s earlier opinion in Pearce v. Wichita County, 590
1
The Court notes that the plaintiff in Day brought suit pursuant to the Age Discrimination
in Employment Act (“ADEA”) and not the FLSA. This distinction is of no effect on the Court’s
analysis, however, as, at the time of Day’s termination, § 255(a) applied to ADEA cases just as it
does to FLSA cases. See Day, 122 F.3d at 1014 (“At the time of the events giving rise to this
litigation, the ADEA incorporated the two-tiered statute of limitations contained in the
Portal-to-Portal Pay Act of 1947. See 29 U.S.C. § 626(e)(1). That statute provided that an action
would be ‘forever barred unless commenced within two years after the cause of action accrued,
except that a cause of action arising out of a willful violation may be commenced within three years
after the cause of action accrued....’ 29 U.S.C. § 255(a).”).
5
F.2d 128, 134 (5th Cir. 1979).2 The Pearce Court had addressed a situation almost
identical to that in the Day case. In Pearce, the defendant had not raised the statute
of limitations defense in its pleadings or in objection to the court’s jury instructions.
Id. It had waited until after the jury verdict, finally bringing the limitations issue to
the Court’s attention in a motion for judgment notwithstanding the verdict. Id. The
Pearce Court held that such a delay constituted waiver of any objection to the
limitations period that was applied. Id.
The case at hand is clearly distinguishable from the Day and Pearce cases,
however, as Appellees raised § 255(a) several times before the case was submitted
to the jury. First, Appellees stated in their Answer (under the heading “Affirmative
Defenses”) that “[a]ny violation of the [FLSA] by Defendants was not willful, and
was wholly unintentional. Defendants continuously acted in good faith with regard
to the administration of its [sic] pay plan.” Next, more than a month before trial, the
two-or-three-year limitation was referenced more than once in the parties’ Joint
Pretrial Stipulation. Specifically, under the heading “Defendants’ Statement of the
Case,” Appellees stated that “Defendants dispute . . . that Plaintiff was not paid for
any overtime he may have worked during the last two or three years of his
2
The Eleventh Circuit, in an en banc decision, Bonner v. City of Pritchard, 661 F.2d 1206,
1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
6
employment.” Also, in the Stipulation, the parties stated that the following fact was
agreed upon and would not require proof at trial: “The corporate Defendant grossed
in excess of $500,000.00 per year during the last three years of Plaintiff’s
employment.” Finally, the parties and the court addressed this matter during trial,
when, following the close of Navarro’s case, the Appellees based several motions for
directed verdict on the three-year maximum limitations period. Navarro’s counsel,
armed with case law, responded with the contention that the Appellees had not pled
§ 255(a) as an affirmative defense. The Court reviewed the proffered case, but
ultimately ruled that § 255(a) would apply so that, at most, Navarro would recover
for a three-year time period. Thus, this case stands in stark contrast to the Day and
Pearce cases, where defendants had waived the defense by not raising it until after
the jury had rendered a verdict.
The Court finds that Appellees timely raised the § 255(a) statute of limitations.
Even if Appellees’ assertions in their Answer did not comply with a strict reading of
F.R.Civ.P. 8(c), under this Court’s precedent, the limitation was still not waived.
That is, although Rule 8(c) requires that a statute of limitations defense be raised as
an affirmative defense, this Court has noted that “the purpose of Rule 8(c) is to give
the opposing party notice of the affirmative defense and a chance to rebut it,” and, as
a result, “if a plaintiff receives notice of an affirmative defense by some means other
7
than the pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause
the plaintiff any prejudice.’” Grant v. Preferred Research, Inc., 885 F.2d 795, 797
(11th Cir. 1989) (quoting Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.
1988)). In Grant, the defendant raised the statute of limitations defense for the first
time in a motion for summary judgment filed approximately one month before trial.
Id. This court ruled that, because the plaintiff was “fully aware” that the defendant
intended to rely on the defense, and because the plaintiff did not assert any prejudice
from the lateness of the pleading, the defendant’s failure to comply with Rule 8(c) did
not result in a waiver. Id. at 797-98.
As demonstrated above, in this case, Navarro was given ample notice of
Appellees’ intent to rely on § 255(a) in several instances prior to trial. Moreover,
when the issue was debated in light of the Appellees’ directed verdict motions,
Navarro’s counsel made a thorough argument (including case citations) against the
statute’s application. He never claimed during that argument that he had been
surprised or somehow otherwise prejudiced by defense counsel’s reliance upon §
255(a) at trial. As a result, the district court did not err in limiting the jury’s
consideration of unpaid overtime to the two- or three-year period prior to the filing
of the complaint. Further, because it was uncontested that there was no evidence that
Domingo or Rosa Santos exercised any active supervisory control over the company
8
for the period three years prior to the filing of the complaint, the district court did not
err in granting Appellees’ motion for judgment as a matter of law on the issue of the
individual liability of either of them. Accordingly, we affirm the judgment entered
on the jury’s verdict.
AFFIRMED.
9 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063023/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10282 ELEVENTH CIRCUIT
MARCH 31, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00040-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL GENE PHILLIPS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 31, 2010)
Before EDMONDSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Darrell Gene Phillips appeals his 564-month total sentence imposed for drug
and firearm offenses, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(c). No
reversible error has been shown; we affirm.
On appeal, Phillips argues that he should have received only a five-year
mandatory minimum sentence for his firearm offense, not the seven-year
mandatory minimum he received for brandishing a firearm. We review this issue
for plain error because Phillips did not raise it in the district court. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).1
Under section 924(c), a person convicted of using or carrying a firearm in
relation to a drug offense must be sentenced to a consecutive mandatory minimum
five-year sentence. 18 U.S.C. § 924(c)(1)(A)(i). But this mandatory minimum is
increased to seven years if, during sentencing, the district court determines that the
firearm was brandished. 18 U.S.C. § 924(c)(1)(A)(ii); United States v. Gray, 260
F.3d 1267, 1281-82 (11th Cir. 2001). “Brandish” is defined as an act meant “to
display all or part of the firearm, or otherwise make the presence of the firearm
known to another person, in order to intimidate that person, regardless of whether
1
Under plain-error analysis, Phillips must show that “(1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
2
the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4).
Phillips maintains that the evidence did not show that he intimidated a
confidential informant (“CI”) with the firearm. We disagree. Phillips made no
objections to the facts in the presentence investigation report; thus, he is deemed to
have admitted the facts. See United States v. Bennett, 472 F.3d 825, 833-34 (11th
Cir. 2006). And those facts indicated that a CI arrived at Phillips’s doorstep,
unannounced, to purchase methamphetamine. Phillips thought the CI’s presence
could have been a robbery attempt; so, while at the door, Phillips admonished the
CI that he had a loaded UZI machine gun with him and claimed that it was a fully
automatic weapon. On these facts, we conclude that Phillips’s act in warning the
CI about the presence of a firearm was intended to intimidate the CI; and the
district court committed no error, plain or otherwise, in determining that Phillips
brandished the firearm.
We turn to Phillips’s argument that his guidelines sentence substantively is
unreasonable.2 We typically review substantive reasonableness arguments under an
abuse of discretion standard. Gall v. United States, 128 S.Ct. 586, 591 (2007). But
2
Phillips’s guidelines range was 480 months’ to life imprisonment for the drug charge in
addition to the 84-month mandatory minimum sentence for the firearm charge. But the statutory
maximum term of imprisonment for the drug charge was 480 months. So, the statutorily
authorized maximum sentence became the guidelines sentence. See 21 U.S.C. §
841(b)(1)(A)(ii), (viii), U.S.S.G. § 5G1.1(a).
3
an alleged error cannot serve as grounds for reversal if the appealing party
“induces or invites the district court into making [the alleged] error.” United States
v. Stone, 139 F.3d 822, 838 (11th Cir. 1998).
Here, Phillips requested that the district court sentence him at the low end of
the guidelines range. The district court complied and sentenced him to the lowest
possible guidelines sentence of 564 months. Because Phillips now challenges the
very act that he asked the district court to undertake, we do not reach the merits of
Phillips’s argument about the substantive reasonableness of his sentence. See
United States v. Love, 449 F.3d 1154, 1156-57 (11th Cir. 2006) (defendant
precluded from challenging the length of the supervised release portion of his
sentence when he specifically had “induced or invited the district court to impose a
sentence that included a term of supervised release”).3
AFFIRMED.
3
We also note that the district court provided many reasons -- all supported by the record
and the 18 U.S.C. § 3553(a) factors -- for a guidelines sentence, including Phillips’s extensive
(but unscored) criminal history, the large amount of drugs involved, and his failure to take
responsibility for his acts.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063024/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14094 ELEVENTH CIRCUIT
MARCH 31, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00263-CV-HLM-4
SARA VALDEZ,
Plaintiff-Appellant,
versus
STAPLES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 31, 2010)
Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Sara Valdez appeals from the district court’s grant of summary judgment in
favor of Staples, Inc. in her retaliation claim, filed pursuant to the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d).1 We affirm.
Valdez, a 53-year-old woman, was terminated from her position as a part-
time cashier at the Staples store in Rome, Georgia on April 18, 2006. She alleges
that during a meeting with Tara Mayes, her store manager, Mayes called Velez
“nothing but an old bag”. Valdez contacted Bob Noon from Staples’s human
resources department to report that Mayes had been loud and disruptive and had
called her an “old bag.” Valdez admits that she did not expressly raise the issue of
age discrimination in this conversation. Rebecca Ward, a colleague of Noon’s
from human resources, was sent to the Rome store to investigate Velez’s
complaints about Mayes. Ward concluded that all of Valdez’s claims about Mayes
were unsubstantiated and that Valdez’s behavior since the meeting had been
disruptive and unprofessional. As a result, Ward recommended that Valdez be
counseled for unprofessional behavior in the workplace.
Sometime thereafter, one of Valdez’s coworkers informed Mayes that she
had seen Valdez filling out reward card applications using the phone book, in
violation of Staples’s policies. When Mayes asked Valdez if she had, in fact, filled
out applications in this manner without customer consent, Valdez admitted that she
1
Valdez also brought a claim for age discrimination but later dismissed it voluntarily,
with leave of the court. Accordingly, that claim is not presently before us.
2
had done so, but asserted that she was only doing what Mayes had previously
instructed her to do. Mayes contacted Ward who, after another investigation,
determined that Valdez should be terminated for falsifying documents in violation
of Staples’s ethics policy. Valdez was then terminated by Ward via telephone with
Mayes and her assistant manager present.
We find no reversible error in the district court’s conclusion that Valdez
failed to present sufficient evidence to create a genuine issue of material fact as to
whether she was terminated because of her complaint regarding Mayes. After
Valdez complained about Mayes’s “old bag” comment, Ward came to the Rome
store and conducted an investigation, finding no merit to Valdez’s complaint.
Although Valdez may be dissatisfied with the results of Ward’s investigation into
Mayes’s comment, the evidence shows that an independent investigation into her
claims was completed.
Further, after this investigation was completed, an independent report was
made by one of Valdez’s coworkers that she falsified documents in violation of
company policies, a claim which Valdez does not dispute. Ward conducted
another investigation into Valdez’s claim that she had been instructed by Mayes to
falsify documents and again found no merit in this claim Valdez’s intervening act
of misconduct and the intervening investigation by the corporate office were
3
sufficient to erode any causal connection created by the close temporal proximity
between Mayes’ comment and the termination.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2885303/ | NO. 07-01-0443-CR
NO. 07-01-0444-CR
NO. 07-01-0445-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 28, 2001
______________________________
JOHN RICHMOND PHILLIPS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 43,736-E; 43,962-E; 43,963-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
On July 23, 2001, appellant John Richmond Phillips pled guilty to three different
criminal charges in the 108th District Court of Potter County (“the trial court”) pursuant to
plea bargains. The trial court honored the plea bargains and imposed sentences in all
three causes on July 23, 2001.
In our Cause No. 07-01-00443-CR, appellant pled guilty to and was convicted for
theft, enhanced, in trial court Cause No. 43,736-E, and was sentenced to confinement for
nine years in the Texas Department of Criminal Justice-Institutional Division. The trial
court docket sheet indicates that counsel was appointed to represent appellant in the
cause.
In our Cause No. 07-01-00444-CR, appellant pled guilty to and was convicted for
forgery of a financial instrument, enhanced, in trial court Cause No. 43,962-E, and was
sentenced to confinement for nine years in the Texas Department of Criminal Justice-
Institutional Division. The clerk’s record does not indicate that appellant claimed indigency
in such cause, nor that counsel was appointed to represent him in the cause. He was
represented by the same counsel that represented him in trial court Cause No. 43,736-E.
In our Cause No. 07-01-00445-CR, appellant pled guilty to and was convicted for
credit card abuse, enhanced, in trial court Cause No. 43,963-E, and was sentenced to
confinement for nine years in the Texas Department of Criminal Justice-Institutional
Division. The clerk’s record does not indicate that appellant claimed indigency in such
cause, nor that counsel was appointed to represent him in the cause. He was represented
by the same counsel that represented him in trial court Cause No. 43,736-E.
On October 16, 2001, the district clerk of Potter County file-marked a letter from
appellant directed to the trial judge. The letter listed the three cause numbers referenced
hereinabove and stated that appellant planned to appeal “this case” and the 3 nine-year
2
sentences and requested appointment of counsel for appeal. The envelope in which such
letter was sent was apparently postmarked August 15, 2001. No separate appointment
of counsel appears to have been made for appeal in any of the causes. No appearance
has been made by any counsel for appellant on appeal in any of the causes. See TEX .
CRIM . PROC . CODE ANN . art. 1.051(d) (Vernon Supp. 2001); TEX . CRIM . PROC . CODE ANN .
art. 26.04(a) (Vernon 1989) (an attorney appointed to represent an indigent defendant in
a criminal case shall represent the defendant until charges are dismissed, the defendant
is acquitted, appeals are exhausted or the attorney is relieved of his duties by the court or
replaced by other counsel); TEX . R. APP . P. 6.4(b). The clerk of this court has received
and filed a letter from appellant requesting instructions and forms in regard to appointment
of counsel on appeal.
In Texas, every person convicted of a crime has a statutory right to appeal. See
TEX . CRIM . PROC . CODE ANN . § 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376,
378-79 (Tex.App.--Houston [14th Dist.] 2000, no pet. h); Johnson v. State, 885 S.W.2d 641,
644 (Tex.App.--Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the
United States Constitution guarantee to a criminal defendant the right to counsel on a first
appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An
attorney must be appointed by the state to represent an indigent defendant on the first
appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108
S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated
3
to appoint the appellate attorney for an eligible indigent defendant. See TEX . CRIM . PROC .
CODE ANN . §§ 1.051(d)(1), 26.04(a).
Accordingly, the three appeals are abated and the causes remanded to the trial
court. TEX . R. APP . P. 43.6. Upon remand, the judge of the trial court is directed to cause
notice to be given of and to conduct a hearing to determine: (1) whether appellant desires
to prosecute these appeals; (2) if appellant desires to prosecute the appeals, then whether
appellant is indigent; (3) if appellant is indigent and desires to prosecute the appeals,
whether appellant’s previously appointed counsel should be replaced and separate
counsel for appeal appointed, and whether counsel should be appointed for the appeals
in which no counsel has thus far been appointed; and (4) what orders, if any, should be
entered to assure the filing of appropriate notices and documentation to dismiss
appellant’s appeals if appellant does not desire to prosecute the appeals, or, if appellant
desires to prosecute the appeals, to assure that the appeals will be diligently pursued. If
the trial court determines that the attorney appointed prior to appellant’s plea and
conviction should be replaced, the trial court should cause the clerk of this court to be
furnished the name, address, and State Bar of Texas identification number of the newly
appointed attorney. In this regard, we note that although appellant’s correspondence
requests appointment of a particular attorney on appeal, appellant is not entitled to
designate which attorney is to be appointed to represent him, if any. The determination
of which attorney is to be appointed to represent an indigent defendant is within the
discretion of the trial court.
4
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations in each of the three
causes, and cause them to be included in supplemental clerk’s records; (3) cause the
hearing proceedings to be transcribed and included in reporter’s records of the hearing;
and (4) have records of the proceedings made to the extent any of the proceedings are not
included in the supplemental clerk’s records or the reporter’s records of the hearing. In
the absence of a request for extension of time from the trial court, as to each of the
causes, the supplemental clerk’s record, reporter’s record of the hearing, and any
additional proceeding records, including any orders, findings, conclusions and
recommendations, are to be sent so as to be received by the clerk of this court not later
than January 11, 2002.
Per Curiam
Do not publish.
5 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3816168/ | The trial court sustained a demurrer to plaintiff's petition, and from this order the plaintiff appeals.
The plaintiff alleges that the defendant in the action fraudulently induced the plaintiff, who was an ignorant, illiterate negro, to purchase a worthless mule, said mule being sold with a warranty and being represented to be young, sound, and a first class mule. Plaintiff alleges that these representations were all false, that the mule was old, diseased, and practically worthless. The defendant thereupon induced the plaintiff to accept a second mule which turned out to be as worthless as the first, and also a third broken down mule in lieu of the second animal. The plaintiff paid for the broken down, worthless mule by the giving of a note secured by a mortgage on four hogs.
The defendant sued on the note and replevied the hogs under the mortgage. The justice court sustained the plaintiff's plea of fraud and gave him (the plaintiff in this action) judgment for the return of his hogs. Upon an appeal the county court of Pittsburg county, Okla., again gave judgment for the plaintiff in this action. The defendant in this action gave notice of appeal and secured an order allowing 90 days in which to make and serve a case-made. This was done in June, 1920, and in September, 1920, the defendant in this action abandoned the appeal.
The instant suit was brought in July, 1921, within one year after the termination of the former action. The basis of this suit is the malicious and groundless prosecution of the first action. The allegations as to fraud in the original transaction are explanatory of the transaction.
The trial court apparently sustained a demurrer on the ground that the suit was barred by the statute of limitations. This was error.
The statute of limitations as to actions for malicious prosecution begins to run at the date of the termination of the prior action which is alleged to be malicious, and suit may be brought thereon within one year thereafter. Comp. Stat. 1921, sec. 185. The present action is timely.
The petition in this cause contains the requisite averments for the maintenance of the action, which are: (a) The prosecution of the original suit by the present defendant; (b) termination in favor of plaintiff; (c) malice and want of probable cause; (d) damages. (See 18 Rawle C. sec. 50, page 68.)
An examination of the petition in this cause discloses that all of the facts requisite for stating a good cause of action in malicious prosecution have been alleged. The petition is not perhaps technically or artfully drawn, but the facts stated are with sufficient clearness and the petition states a good cause of action.
The rule is that where a petition is challenged by a general demurrer the same will be liberally construed in favor of the pleader, and if any facts are stated which entitle the pleader to any relief the demurrer will be overruled. Carter v. Grimmett, 89 Okla. 37, 213 P. 732; Nale v. Hernstein,84 Okla. 35, 202 P. 284; Good v. First Nat. Bank, 88 Okla. 110,211 P. 1051; Newman v. City of Okmulgee, 84 Okla. 147,202 P. 1006.
The judgment of the trial court sustaining the demurrer is reversed, with directions to overrule the demurrer and require the defendant to answer.
By the Court: It is so ordered.
Note. — See under (1) 26 Cyc p. 70; (2) 26 Cyc pp. 72, 74, 75, 77, 78. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3816169/ | This is an original proceeding to review an award of the State Industrial Commission rendered on July 28, 1932, in favor of Gardner Wilson. The Commission found that claimant was in the employ of petitioners, and that while engaged in a hazardous occupation he received an accidental injury to his right eye. The Commission further found that claimant had suffered 25 per cent. permanent partial disability in his right eye; that he had suffered the complete loss of his left eye in an injury some three years previous and in no wise connected with the case at bar; and made an award to claimant, under section 7290, C. O. S. 1921, on a basis of 500 weeks. There is no finding in the award that notice was given to petitioners or a finding excusing claimant from giving notice.
Petitioners appeal to this court from said award, and contend:
"The Commission had no jurisdiction to make the order because the claimant failed to give the statutory notice of injury and failed to show that the employer had not been prejudiced by the failure to give the notice, and for the further reason that the Commission failed to make any finding excusing the failure to give the notice."
Claimant testified that he received an injury on September 6, 1929. A person by the name of Pierce was employed by petitioners to dig a hole in which to place a gasoline tank. Pierce procured claimant to aid in digging the hole. It took slightly over two days to dig the hole, and claimant claims that while at work the second day he was hit in the eye by a piece of gravel. He continued to work until the excavating was done and never made any mention thereof to petitioners. He never made any mention of the injury, neither did he give written notice to either of petitioners in said case, within 30 days. He testified that, more than two weeks after the injury, which occurred at Smithville, he was at Broken Bow and went by a certain station of petitioners and asked to see the boss. On being told that the boss of the station was away, he told some person around the station that he had received an injury to his eye and wanted medical attention for the same. But he further testified that he did not know whether the person to whom he spoke was in the employ of petitioners or not. This is the only attempt made to give notice as shown by the record.
The Commission did not make a finding relative to notice, either being given or excusing the failure to give the same. Section 7292, C. O. S. 1921, is our statutory provision relative to the giving of notice. Said section has been considered by this court and construed on numerous occasions. *Page 130
In the case of Ford Motor Co. v. Hunt et al., 146 Okla. 105,293 P. 1038, the court held:
"Under section 7292, C. O. S. 1921, providing that notice of an injury for which compensation is payable under the Workmen's Compensation Act of Oklahoma shall be given to the employer within 30 days after injury, failure of the employee to give such notice will bar a claim for compensation under the act, unless the employee shall excuse such failure by affirmative proof that such notice could not have been given or that his employer was not prejudiced thereby."
Where, in a proceeding before the State Industrial Commission, actual notice to the employer is relied upon as an excuse for failure to give the written notice provided for by the statute, the evidence should show information imparted to the employer sufficient to show an accidental injury received in the course of and growing out of the employment, or information of an injury and such other facts as would indicate a desire for medical attention and securing compensation for the injury or for diminished earning power, otherwise there is no evidence upon which to base an excuse by the Commission of failure to give the statutory written notice or to show that the employer was not prejudiced. Velie Mines Corp. v. Rogers,150 Okla. 185, 1 P.2d 853, McMann Oil Gas Co. v. Garrett,155 Okla. 76, 7 P.2d 686, Trigg Drilling Co. v. Thomas,160 Okla. 85, 15 P.2d 985, Dover Oil Co. v. Bellmyer,163 Okla. 51, 20 P.2d 556, and Coline Oil Corp. v. Vaughn,157 Okla. 101, 11 P.2d 121.
We observe in the case at bar that the Commission did not make a finding regarding notice, even though said question was a controverted question in said cause. Under the holdings of this court, if there was competent evidence to sustain such an award, the case would be reversed and sent back for further proceedings (Pioneer Gas Utilities Co. v. Howard,154 Okla. 239, 7 P.2d 435); but the evidence introduced in said cause does not show any competent evidence relieving claimant from the giving of the notice prescribed by the statute and required by the decisions of this court. Neither is the testimony such as to bring the case within the exceptions provided in cases of this kind.
Claimant having failed to comply with the provisions of the statute or to bring himself within the provisions of the decisions of this court relative to the failure to give notice, the petition to vacate is granted and the cause remanded for further proceedings.
RILEY, C. J., and SWINDALL, ANDREWS, McNEILL, OSBORN, BAYLESS, and BUSBY, JJ., concur. WELCH, J., absent. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1473735/ | 173 F.2d 488 (1949)
WALLAN et al.
v.
RANKIN et al. FIRST NAT. BANK OF PORTLAND
v.
RANKIN et al. THOMPSON
v.
RANKIN et al.
Nos. 11995-11997.
United States Court of Appeals Ninth Circuit.
March 11, 1949.
Rehearing Denied April 11, 1949.
*489 *490 Gerald Bridges, of Los Angeles, Cal., McCarty, Dickson & Swindells, of Portland, Or., L. Orth Sisemore and John B. Ebinger, both of Klamath Falls, Or., for appellants.
O'Connor & O'Connor, of Los Angeles, Cal., for appellees.
Before HEALY, BONE, and ORR, Circuit Judges.
HEALY, Circuit Judge.
On February 23, 1947, in the state of Oregon, an aeroplane owned by John Rankin and R. S. Norswing, co-partners doing business under the names of Rankin Aeronautical Academy and Rankin Aviation Industries, and allegedly operated by the said Rankin in furtherance of the partnership business, crashed upon taking off, fatally injuring Rankin and two of his passengers, Lanier Wallan and John Elie, and injuring the third passenger, Milton Thompson.
As an outgrowth of the crash Margie Wallan, as administratrix of the estate of Lanier Wallan, and the First National Bank of Portland, as executor of the last will of John Elie, separately sued in the district court for the southern district of California for the benefit of the respective surviving widow and minor children of the deceased; and the injured Thompson sued in that court in his own behalf. The suits were filed in February of 1948. In each action the defendants are the partnership, R. S. Norswing individually as surviving partner, and Shirley Rankin as executrix of the estate of John Rankin. The complaints allege that the accident was caused by Rankin's negligent operation of the plane. General damages are claimed in each case. All plaintiffs are citizens of Oregon and all defendants citizens of California; and the amounts in controversy severally exceed the statutory sum of $3,000.
In each action the defendants moved for a dismissal on the grounds (1) failure of the complaint to state a claim upon which relief may be granted, (2) lack of capacity in the plaintiff to sue, (3) lack of capacity in the defendants to be sued, and (4) lack of jurisdiction of the subject matter. The motions were granted and judgments of dismissal entered.
Concretely, the arguments in support of the judgments resolve themselves into two propositions: first, that in the state of the forum (California) causes of action for personal injury or wrongful death abate upon the death of the tortfeasor (in the present instance, Rankin); second, that the Oregon executor and administratrix, suing here without obtaining ancillary letters, have no standing as suitors in the local courts. These are conflict of law questions. In deciding them a federal court is bound to apply the conflict of law rules obtaining in the state in which the court sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477.
1. In California, conformably with the general rule, it is held that an action in tort is governed by the law of the jurisdiction where the tort was committed, and the action being transitory it may be maintained in any jurisdiction where the defendant is found. Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264; Ryan v. North Alaska Salmon Co., 153 Cal. 438, 95 P. 862. The local courts will enforce the foreign law if not contrary to the public policy of the forum, to abstract justice or pure morals, or injurious to the public welfare. Loranger v. Nadeau, supra; McManus v. Red Salmon Canning Co., 37 Cal. App. 133, 173 P. 1112.
We turn to the Oregon law defining the substantive rights and liabilities of the parties. The statutes of that state provide an action for wrongful death maintainable *491 by the personal representative of the deceased for the benefit of the surviving spouse and dependents of the deceased. § 8-903, Oregon Compiled Laws Annotated.[1] The construction given this statute by the Oregon courts is that if any of the statutory beneficiaries are in existence, there is no right of action for death by wrongful act for the benefit of the estate, the only recovery being for the named beneficiaries. Hansen v. Hayes, 175 Or. 358, 376, 154 P.2d 202; Natwick v. Moyer, 177 Or. 486, 496, 163 P.2d 936. Causes of action arising out of injury to or the death of a person, caused by the wrongful act or neglect of another, do not abate upon the death of the wrongdoer; and the injured person or the personal representative of one meeting death has a cause of action against the personal representatives of the wrongdoer. § 8-904, O.C.L.A.[2] In respect of a partnership, the statutes provide that where by any negligence of a partner, acting in the course of the business of the partnership, loss or injury is caused to any person other than a partner, the partnership is liable to the same extent as the partner so acting; and all partners are liable jointly and severally for such wrongful act. §§ 79-305, 79-307, O.C.L.A. A partnership is not terminated by dissolution through death of a partner, but continues until the partnership affairs are fully wound up. §§ 79-602, 79-603, O.C. L.A. And the dissolution of the partnership does not of itself discharge the existing liability of any partner. § 79-608.[3]
Such being the condition of the Oregon law it follows that had these suits been brought in Oregon the plaintiff in each would be possessed of a cause of action maintainable against all the defendants. We have to inquire whether the enforcement of the causes runs counter to the public policy of the forum, or to principles of abstract justice or good morals obtaining there. We are not able to find that it does.
California has a wrongful death statute, Code Civ.Proc. § 377, providing that the heirs or personal representatives of a deceased person may maintain an action for damages against the person wrongfully causing the death. In such action damages may be awarded as under all the circumstances of the case may be just. This statute, so it has been held, modifies the common law to the extent of giving a right of action for damages to the decedent's heirs only, or to his personal representative for their benefit. Ruiz v. Santa Barbara, etc., Co., 164 Cal. 188, 191, 128 P. 330.[4] To that extent, clearly, the public policy of the forum is in harmony with the Oregon law as invoked here. The statute does not, however, abrogate the common law rule relative to the abatement of a cause of action for injury to or the death of a person upon the death of the wrongdoer, Clark v. Goodwin, 170 Cal. 527, 150 P. 357, L.R.A.1916A, 1142; and it is largely upon the holding to that effect in the decision cited that the defendants take their stand.
Appeals to Clark v. Goodwin are unavailing. In the more recent case of Hunt v. Authier, 1946, 28 Cal. 2d 288, 169 P.2d 913, 916, 171 A.L.R. 1379, the Supreme Court of *492 the state reached the conclusion that another statute, namely § 574 of the Probate Code as amended in 1931, effected at least a partial survival of a cause of action for wrongful death, maintainable against the personal representative of the deceased wrongdoer. In that case a Dr. Hunt was murdered by one Mounsey, who thereafter committed suicide. Hunt's widow and minor children sued Mounsey's personal representative for a sum alleged to be the pecuniary loss of and damage to the property and estate of the plaintiffs growing out of Hunt's death. A judgment dismissing the suit was reversed on the view that the complaint stated a cause for recovery. The court noted a trend in the American decisions toward enlargement of the causes or rights of action which will survive death. It said that while the amended statute does not use express words of survival, nevertheless it affords the right to maintain actions after the death of those who could have been plaintiffs or defendants if they had lived, in cases of injury to all species of property rights, and to that extent marks a departure from the common law rule that actions ex delicto do not survive. "The fact," said the court, "that the complaint states facts which would have constituted a cause of action against the tortfeasor in his lifetime does not foreclose the maintenance of the same or a similar cause of action to the extent authorized by section 574." The permissible recovery under that section was held to comprehend the material losses sustained by the plaintiffs, including the present value of future support from their decedent during their normal life expectancies. Non-pecuniary deprivation, such as loss of consortium, alone seems to be excluded.
In Nash v. Wright, 1947, 82 Cal. App. 2d 475, 186 P.2d 691, 692, which had been begun as an ordinary action for wrongful death under § 377 of the Code of Civil Procedure, the tort-feasor died during the progress of the litigation and his personal representative was substituted as a party defendant over defense objection. The appellate court upheld the substitution on the authority of Hunt v. Authier, supra, saying that it was able to find "no substantial difference between the nature of the action brought by the Hunt heirs and that instituted by the respondents." And in Moffatt v. Smith, 1948, Cal.App., 197 P.2d 798, the doctrine of Hunt v. Authier was further extended to embrace a right of recovery on the part of the surviving victim himself as against the personal representative of the deceased tort-feasor.
Where in the forum as well as in the jurisdiction where the tort occurred a right of recovery for such a tort exists it is notable that differences between the foreign law and that of the forum, even though of major consequence, are not thought an impediment to enforcement. Thus in Loranger v. Nadeau, supra, the California court applied the Oklahoma law permitting recovery by a guest passenger of damages for personal injury on proof of ordinary negligence on the part of the driver, notwithstanding the California statute permitted recovery in such cases only on proof of gross negligence. The court observed that the liability of a host to his guests for negligent injuries existed in both states, and enforcement of the Oklahoma law was not thought to do violence to any fundamental principle, public policy, or good morals of the forum.[5]
This line of cases demonstrates, we think, that the present causes of action would survive at least in major part in California and that their maintenance there does not offend any fundamental policy of the state. As regards the subsisting liability of the partnership and of the surviving partner, no more need be said than that in respects here important the law of California is *493 identical with that of Oregon. Consult California Civil Code, §§ 2407, 2409, 2424, 2425, 2430.
2. It remains to inquire whether the Oregon administratrix and executor are entitled to maintain their suits in California.[6] They are not, we repeat, seeking to recover on behalf of their estates but for the benefit only of the respective widows and children of their decedents. As plaintiffs they occupy the status of statutory trustees of the type empowered to sue under § 377 of the California Code of Civil Procedure in actions for wrongful death, as indicated in Ruiz v. Santa Barbara, etc., Co., supra, 164 Cal. pages 191, 192, 128 P. 330. It is clear, therefore, that the real parties in interest are the widows and dependents, since under Oregon law any amount recovered accrues to them personally free from any possible claims of creditors.
It is, of course, the universal rule, true in California as elsewhere, that in the ordinary situation a suit by a foreign executor or administrator may not be maintained without ancillary appointment in the state of the forum. Code of Civil Procedure, § 1913. The reasons for this practice are too familiar to warrant elaboration here. Cf. Ghilain v. Couture, 84 N.H. 48, 146 A. 395, 65 A.L.R. 553, and annotation. Whether suits such as the present constitute an exception to the rule is a question to which the California authorities give no precise answer. In at least two cases, however, the courts of that state have departed from the rule in exceptional circumstances. Cf. In re Estate of Rawitzer, 175 Cal. 585, 166 P. 581; Fox v. Tay, 89 Cal. 339, 24 P. 855, 26 P. 897, 23 Am. St. Rep. 474.
Considering the generally liberal spirit of the California decisions there can be little doubt that as a matter of comity the courts of that state would entertain a suit by a foreign administrator or executor seeking recovery, as here, in the special statutory capacity of a trustee for the benefit solely of the dependants of his decedent. Many and persuasive authorities approve such a principle. See Ghilian v. Couture, supra; Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 162 A.L.R. 318; Wierner, Administrator, v. Specific Pharmaceuticals, Inc., 298 N.Y. 346, 83 N.E.2d 673, and cases there cited.
We conclude that the court was wrong in dismissing the suits, and the judgments in all cases are reversed.
NOTES
[1] "§ 8-903. Action by personal representative for wrongful death: Limitations: Amount recoverable. When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the the death, and damages therein shall not exceed $10,000."
[2] In actions arising under § 8-904, as under § 8-903, the damages recoverable may not exceed $10,000.
[3] The several cited provisions are contained in the Uniform Partnership Act, in force in Oregon.
[4] In Ruiz v. Santa Barbara Co., the court said, (164 Cal. page 191), 128 P. page 332: "It is settled by the decisions that an action of the character authorized by section 377 of the Code of Civil Procedure is one solely for the benefit of the heirs, by which they may be compensated for the pecuniary injury suffered by them by reason of the loss of their relative, * * *".
[5] Two cases, Thome v. Macken, 58 Cal. App. 2d 76, 136 P.2d 116, and Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374, are called to our attention illustrative of the other side of the picture. The first of these cases was a suit by an Oregon resident to recover for alienation of affection occurring in Oregon. The court declined enforcement for the reason that a positive law of the forum forbids the prosecution of an action for such a tort. In the Von Hamm case the suit was for damages for a tort committed in Hawaii by the defendant's minor child. Enforcement was refused as against the parent on the ground that in California a parent is not liable, without more, for the tort of his child.
[6] The capacity of Thompson to sue is governed by the law of his domicile. Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. There is no claim that he lacked capacity to sue in Oregon. Thompson's right to recover from the defendants in his own behalf appears settled by the holding in Moffatt v. Smith, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4000599/ | 1 Reported in 98 P.2d 658.
Upon the application of the relator, this court, on December 30, 1939, issued an order directing *Page 489
the judges of the superior court of King county to appear before it on January 19, 1940, and show cause why the court should not issue a peremptory writ of mandate, commanding each of them to forthwith appoint an official reporter for his particular department. The respondents appeared and demurred to the application, and, without waiving the demurrer, made answer. Briefs were filed by the parties, argument was heard on the return day, and the matter is now ready for decision.
By chapter 126, Laws of 1913, p. 386, the legislature provided for the appointment of official court reporters in the state of Washington. Section 13, p. 390, read as follows: "This act shall not apply to any county having a population of two hundred thousand, or over."
By chapter 66, Laws of 1919, p. 133, that section was amended by substituting the words "two hundred and eighty thousand" for "two hundred thousand," and § 9, p. 389, was also amended. Section 1, p. 386, was amended by chapter 42, Laws of 1921, p. 147. The act, as thus amended, appears in Rem. Rev. Stat. as §§ 42-1 to 42-13 [P.C. §§ 8595 to 8607], inclusive.
By chapter 178, Laws of 1939, p. 545, the legislature repealed § 13. Thus, a five-page act, drafted and designed to meet the specific needs of small counties, having in most cases but one or two superior court judges, was extended, without any substantial change in its provisions, to King county, which has fifteen judges, among whom the judicial work is so divided and specialized that several have little or no need of a stenographer. The King county judges, acting as a body, appointed eight regular reporters and three pro tem reporters. Subsequently, still acting jointly, they appointed fifteen reporters, all of whom, it appears, work only part time.
It is the contention of the relator that chapter 126, *Page 490
Laws of 1913, as amended, requires the respondents, and each of them, to appoint "an official court reporter for his particular department," and the prayer is that this court issue a peremptory writ of mandate commanding each of them to do so.
[1, 2] We do not find it necessary to construe the act or enter into a discussion of the merits, for, in our opinion, the respondents have successfully challenged the relator's capacity to maintain the action. In his application, the relator alleged that he is a resident of Seattle, King county, Washington, an elector and taxpayer therein, and a skilled and qualified court reporter. Later, he set up, by amendment, that one of the respondent judges has promised to appoint him, if it is decided, as he contends, that the appointments can only lawfully be made by the judges individually.
The jurisdiction given to this court by the state constitution in Art. IV, § 4, to issue writs of mandamus to state officers, does not authorize it to assume general control or direction of official acts. At the suit of an individual, it can only command a state officer to do thus and so, if such action be necessary to vindicate or protect some private right of the relator. Tacomav. Bridges, 25 Wash. 221, 65 P. 186; Powers v. Webster,47 Wash. 99, 91 P. 569; State ex rel. Pacific American Fisheriesv. Darwin, 81 Wash. 1, 142 P. 441; State ex rel. Clithero v.Showalter, 159 Wash. 519, 293 P. 1000.
And even in such a case, the court will generally refuse to exercise original jurisdiction. State ex rel. Ottesen v.Clausen, 124 Wash. 389, 214 P. 635; State ex rel. Goodwin v.Savidge, 133 Wash. 532, 234 P. 1; State ex rel. Van Brocklynv. Savidge, 140 Wash. 361, 249 P. 996.
In the instant matter, the relator alleges no private or pecuniary interest, merely that he is qualified for appointment and has been promised an appointment if *Page 491
the respondents are required to appoint individually. But such a promise is clearly legally unenforceable, and cannot be said to establish a tangible, or even an inchoate, right. Approaching the question in another way, let it be supposed that the writ issue and the fifteen reporters hitherto appointed be displaced. What right of the relator would be protected or vindicated, or in what respect would he be advantaged by the issuance of the writ? It would not insure his appointment as a court reporter. At the very most, it could do no more than render his appointment possible.
The demurrer interposed by respondents is sustained, and the cause dismissed.
BLAKE, C.J., MILLARD, JEFFERS, and SIMPSON, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4000600/ | 1 Reported in 131 P.2d 736.
Plaintiff instituted this action in the superior court to recover judgment for damages to its motor truck caused in an automobile collision. The complaint charged that plaintiff's truck was damaged through the negligence of Virgil Jones, now deceased, who was the driver of the Packard coupe just before and at the time of the accident. The charges of negligence were in operating the car with more than three persons in the front or operator's seat, in driving at a rate of sixty miles per hour, and in driving the vehicle in a negligent manner in reckless disregard of the rights of other users of the highway, particularly the plaintiff.
A demurrer to the complaint, in so far as the estate of Virgil Jones was concerned, was sustained by the trial court. *Page 605
Defendant, in her individual capacity and as administratrix of the estate of Virgil Jones, deceased, filed her answer in which she denied negligence on the part of Virgil Jones, and in a cross-complaint alleged that the accident was caused by the negligence of the driver of plaintiff's truck. The charges of negligence were in driving a truck on the wrong side of the street, in turning the truck to the left before it had reached the street intersection, the failure to give a signal of an intention to turn, and in driving the truck across the rightful course of the car driven by Virgil Jones.
The cause was tried to a jury and a verdict rendered in favor of defendant in her individual capacity without damages and a verdict without damages in her favor, as administratrix of the estate of Virgil Jones, deceased.
Subsequent to the return of the verdict defendant presented a motion asking for a new trial on the ground that the court had erroneously given instructions Nos. 6, 9, and 20. The motion was granted by the trial court. Plaintiff appealed and has assigned as error the granting of the motion for a new trial.
The accident occurred in Tacoma at about 11:00 p.m., August 30, 1940, at a point south of the intersection of Pacific avenue and 19th street. Pacific avenue, one of the main traveled streets of the city of Tacoma, runs in a northerly and southerly direction. 19th street on the west side intersects Pacific avenue, but does not extend east thereof. Both streets were paved. At the time of the accident there was a double street car track in Pacific avenue so laid that the approximate center of the avenue was that portion lying between the north and south bound tracks. At the time of the accident the pavement was dry, the night clear, and the street lights were burning. Appellant's truck was being driven in a northerly direction close to the west side *Page 606
of the easterly car tracks. Respondent's coupe was driven in a southerly direction by Virgil Jones. Seated next to him was his wife, Vernita Jones. To her right sat Mr. Bernard holding Mrs. Bernard on his lap. Pictures introduced in evidence demonstrated that the right front corner of the truck and the left front corner of the coupe came into contact.
The evidence relating to the cause of the accident and the actions of the different parties was in hopeless conflict. Appellant's evidence showed that the truck was traveling at a speed of twenty or thirty miles per hour on its own side of the street; that, some time before reaching 19th street, the driver drove the truck near to the center of the street and, by automatic signal situated on the left front side of the truck, gave the signal of his intention to turn to his left into 19th street, but had not yet turned when struck by respondent's car.
Appellant's evidence further showed that respondent's coupe came from the north on the wrong side of the street, traveling at a rate of fifty miles per hour, and collided with the right front portion of the truck.
The evidence produced by respondent presented the following facts: That four people were riding in the front seat; that the coupe was being driven by Virgil Jones in a southerly direction on the western portion of Pacific avenue at a speed of not to exceed twenty-five miles per hour; and that, when respondent's coupe was within fifteen or twenty feet of the truck, it suddenly turned to its left in front of the coupe, thus causing the collision. As one witness put it, in speaking of the movement of the truck:
"It started easing towards over to get in the tracks, and then made a sort of a short turn. . . . Sort of a left turn." *Page 607
During the trial the jury viewed the scene of the accident.
Instruction No. 6 read as follows:
"In this connection I instruct you that a person who, at the time of an accident, is engaged in the violation of a positive law, has the burden of proving by clear, cogent and preponderance of the evidence that such violation did not in any way contribute to cause such accident."
This instruction of course was given to apply to the drivers of both vehicles, each of whom was charged with violation of traffic regulations.
[1] Statutes or municipal ordinances prescribing the rules of traffic establish rules of conduct which must be obeyed. They are standards for testing negligence and contributory negligence. The rule in this state is that a violation of those rules constitutes negligence per se. In Johnson v. Heitman, 88 Wash. 595,153 P. 331, Judge Ellis, speaking for the court, stated:
"This court is definitely committed to the rule that `a thing which is done in violation of positive law is in itself negligence,' in the absence of pleading and proof of such peculiar facts as would tend to justify the violation. Engelkerv. Seattle Elec. Co., 50 Wash. 196, 96 P. 1039; Wilson v.Puget Sound Elec. R. Co., 52 Wash. 522, 101 P. 50, 132 Am. St. 1044; Hillebrant v. Manz, 71 Wash. 250, 128 P. 892; Andersonv. Kinnear, 80 Wash. 638, 141 P. 1151.
"In consonance with that rule, this court, in common with others, has repeatedly held that, in the absence of evidence of circumstances tending to excuse by making such a course reasonably necessary, a failure to observe the law of the road, resulting in injury, is negligence as a matter of law."
"It is settled law in this state that `a thing done in violation of positive law is in itself negligence.'" Twedt v.Seattle Taxicab Co., 121 Wash. 562, 210 P. 20.
Accord: Snyder v. Smith, 124 Wash. 21, 213 P. 682; Sliterv. Clark, 127 Wash. 406, 220 P. 785; Benson *Page 608 v. Anderson, 129 Wash. 19, 223 P. 1063; Geitner v.Stephenson, 137 Wash. 464, 242 P. 1099; Keller v. Breneman,153 Wash. 208, 279 P. 588, 67 A.L.R. 92; Price v. Gabel,162 Wash. 275, 298 P. 444.
[2] The question of whether one who at the time of an accident is engaged in the violation of positive law has the burden of showing that the violation did not contribute to the injury, has been the subject of discussion in many of our cases.
In Segerstrom v. Lawrence, 64 Wash. 245, 116 P. 876, this court called attention to the provisions of the statute requiring drivers to "seasonably turn to the right of the center of the way when passing another vehicle going in the opposite direction" and then stated:
"There is a `law of the road' also, arising from usage and custom, which requires persons traveling upon a continuously used street or highway to keep upon the right side of such way. These are regulations to avoid collisions, and the one who neglects it and collides with another usually has the burden of explaining his conduct."
In speaking of the rule relative to driving and turning to the left side of the street, this court stated in Burlie v.Stephens, 113 Wash. 182, 193 P. 684:
"Complaint is made of instruction No. 14 to the effect that the burden of proving a violation of an ordinance of the city was upon the plaintiff, and that even if the driver of the automobile did violate the ordinance, such violation would not constitute negligence upon which recovery could be had, `unless the act which constituted the violation of the ordinance was the proximate cause of the injury,' and that, if the jury believed that the driver of the automobile turned it from the right to the left side of the street in violation of the ordinance, but did so in an emergency, and in an effort to avoid an injury, then such violation would not constitute negligence. This instruction does nothing more than inform the jury that the mere fact, if it should be *Page 609
such, that Ligman turned his automobile to the left side of the road in violation of the ordinance and statute, that fact alone would not be sufficient to make respondents liable in damages, and that whether in so doing the driver was guilty of negligence approximately causing the injury would depend upon the circumstances and the reasons existing at the time. We have no doubt that this is a correct statement of the law. Circumstances may arise where it is entirely proper, in the exercise of reasonable care, to violate the ordinance by turning an automobile to the wrong side of the street. The mere fact that the automobile may be on the wrong side of the street at the time of the collision is not conclusive of negligence, because the driver of the automobile had a right to show why he so did and to excuse that action, and if the jury believed that, in the exercise of ordinary care under the circumstances, he was justified in turning to the wrong side of the street, there could be no negligence in such act upon which recovery could be had."
This court stated in White v. Kline, 119 Wash. 45,204 P. 796, as follows:
"Of course, it is negligence per se to operate a vehicle without complying with the positive requirements of a statute or ordinance in regard to such operation, but that does not mean that the person guilty of negligence in that respect cannot recover against someone else whose negligence immediately occasioned the injury. Negligence arising from the violation of a statute has the same effect as any other negligence; if it is not the proximate cause of the injury it will avoid liability, the same as any other negligence."
Accord: Bone v. Yellow Cab Co., 129 Wash. 503, 225 P. 440.
In Shelley v. Norman, 114 Wash. 381, 195 P. 243, the following instruction was approved:
"`One who violates the law of the road by driving on the wrong side assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side of the road. If a collision takes place *Page 610
under such circumstances, the presumption is against the party who was on the wrong side. But the presumption is prima facie
and has the effect only of casting the burden of justifying his position upon the man who was on the wrong side.'"
We find the following rule in Twedt v. Seattle Taxicab Co.,121 Wash. 562, 210 P. 20:
"It is the rule, also, that, when one acts in direct disobedience of positive law and meets with an accident while in the very act of disobedience, he cannot charge the fault to another without a very clear showing to the effect that his fault did not contribute to the accident."
Benson v. Anderson, 129 Wash. 19, 223 P. 1063, states the rule as follows:
"One injured while in the act of disobedience of them [statutes regulating traffic] should be compelled to show with clearness that his act in no way contributed to his injury."
In Millspaugh v. Alert Transfer Storage Co., 145 Wash. 111,259 P. 22, it was held:
"It is settled law in this state that a thing done in violation of positive law is in itself negligence. . . . But it does place the burden upon the party guilty of a violation of positive law to show that such violation did not contribute to the injury in any material degree.
"Since the appellant was guilty of negligence in operating his motorcycle in violation of the state law, and since he did not show that such negligence did not contribute to the injury he received, we conclude that the trial court did not err in its judgment dismissing his action."
In Martin v. Bear, 167 Wash. 327, 9 P.2d 365, the law was announced as follows:
"If a car, while driven on the wrong side of the highway, collide with another car, the burden is upon the driver upon the wrong side of the highway to justify *Page 611
his violation of the law of the road. Berry on Automobiles (2d ed.) § 171, p. 206.
"Respondents insist that they were not violating the law of the road when they were on the wrong side of the road; that they traveled upon their own right-hand side of the pavement until their car skidded from that side of the pavement over on to the left or wrong side of the pavement; and that they were under no duty to explain how and why the accident happened.
"True, the mere skidding of respondents' automobile was `not an occurrence of such uncommon or unusual character that alone and unexplained it can be said to furnish evidence of negligence in the operation of a car.' Osborne v. Charbneau, 148 Wash. 359,268 P. 884, 64 A.L.R. 251; Huddy Encyc. of Automobile Law (9th ed.), vol. 3-4, § 68, p. 120.
"The law of the road, however, required respondents' automobile to keep to the right of the center of the highway. The presence of that automobile on the wrong side of the highway caused an injury and created liability, unless excusable or justifiable. While respondents were excusable if, without fault on their part, their automobile skidded across the center line of the highway, the burden of proving excuse or justification was upon them."
This rule was cited with approval in Hughes v. Wallace, 6 Wash. 2d 396, 107 P.2d 910, and Tutewiler v. Shannon, 8 Wash. 2d 23, 111 P.2d 215.
We held in Haines v. Pinney, 171 Wash. 568, 18 P.2d 496, as follows:
"While skidding, in itself, is not ordinarily evidence of negligence, where a car skids upon its left-hand side of the road and collides with another automobile, the burden is upon the driver upon the wrong side of the highway to justify the violation of the law of the road."
In Stack v. Dowell, Inc., 172 Wash. 9, 19 P.2d 125, it was stated:
"When a defendant has violated the statute (or an ordinance), he has the burden of proving excuse or justification. He has the affirmative of the issue to justify his violation of the law of the road." *Page 612
In Bredemeyer v. Johnson, 179 Wash. 225, 36 P.2d 1062, error is based upon the refusal of the trial court to give instructions to the effect that one who violated an ordinance must show that his violation was not the proximate cause of the collision which caused an injury. In that case, this court set out the quotation contained in Millspaugh v. Alert Transfert Storage Co., supra, to which we have just referred, and then held that it was overruled
". . . in so far as it holds that the burden of proof is on a plaintiff to show that negligence on his part is not a proximate cause of the injury."
In McPherson v. Wakamatsu, 188 Wash. 320, 62 P.2d 732, we upheld an instruction which read in part as follows:
"`The law of the road requires that automobiles be operated on the right of the center of the highway, and where an automobile skids across the center line of the road to the left side the burden is on the driver upon the wrong side of the highway to excuse his violation of the law of the road.'"
The following statement is found in Brotherton v. Day NightFuel Co., 192 Wash. 362, 73 P.2d 788:
"Of course, one who violates a statute or lawful rule of the road must show that he has, in fact, exercised due care, and that he is not, in law, responsible for his infringement of the law."
The rule is restated as follows in Weaver v. Windust,195 Wash. 240, 80 P.2d 766:
"Even though skidding in itself is not ordinarily evidence of negligence, where an automobile skids over onto its left-hand side of the road and collides with another automobile, the burden is upon the driver on the wrong side of the road to justify the violation of the law of the road and establish that he was free from fault." *Page 613
In Zurfluh v. Lewis County, 199 Wash. 378, 91 P.2d 1002, this court decided as follows:
"The trial court gave an instruction, to which the appellant objects, which withdrew from the jury all evidence which had been admitted touching the question of whether Smith sounded his horn or gave any other signal of his intention to pass the Chevrolet automobile before he passed it. Rem. Rev. Stat., Vol. 7A, § 6360-35 [P.C. § 2696-772], provides that:
"`Every motor vehicle shall be equipped with a suitable horn, which shall be sounded at any time . . . where in the exercise of due care warning should be made. . . .'
"This statute places the duty upon the operator of a motor vehicle to sound a horn whenever, in the exercise of due care, such warning should be made or given. In this case, if the jury should find that the conditions present required, in the exercise of due care, that a warning be given, then Smith, by attempting to pass without sounding a horn, failed to perform a duty imposed upon him by the statute. Failure to perform such a duty is in itself negligence, Twedt v. Seattle Taxicab Co., 121 Wash. 562,210 P. 20; Benson v. Anderson, 129 Wash. 19, 223 P. 1063, and placed upon the operator of the truck the burden of showing that such violation of the statute did not contribute to the injury in any material degree. Millspaugh v. Alert Transfer Storage Co., 145 Wash. 111, 259 P. 22; Weaver v. Windust,195 Wash. 240, 80 P.2d 766."
In American Products Co. v. Villwock, 7 Wash. 2d 246,109 P.2d 570, 132 A.L.R. 1010, it was stated:
"Furthermore, the burden of proving negligence by a preponderance of the evidence rests upon the party alleging it, and the party charged is not required to assume the burden of proving that he was not negligent, but is only required, in response to a prima facie case of negligence made against him, to come forward with evidence excusatory of his negligence. The extent to which he must go in that respect is only to the point of producing evidence sufficient to balance the scales upon that issue. Beyond that point, he is not *Page 614
required to go. The original burden of proving negligence by a preponderance of the evidence remains throughout the case upon the party charging negligence."
We adhere to the rule as announced in the White, Bredemeyer, and American Products Company cases and overrule the Zurfluh
case in so far as it holds contrary to that rule.
[3] Instruction No. 6 was improperly worded and should not have been given.
[4] Instruction No. 9 reads:
"When physical facts are uncontroverted and speak with a force that overcomes testimony to the contrary, you are bound to follow the physical facts rather than the testimony of the witnesses."
We find no fault with the instruction as worded, but fail to find that it applies to the facts as presented in this case. The physical facts, as disclosed by the evidence, did not in any way dispute the testimony of the witnesses for the appellant or those for the respondent.
[5] Appellant argues that because of the fact that the jury viewed the scene of the accident and observed the streets and the surrounding physical objects that it had before it "real evidence" and were in a position to determine that the things they saw overcame the testimony of the witnesses. We are unable to agree with this contention.
Rem. Rev. Stat., § 344 [P.C. § 8509], authorizes the trial court, in its discretion, to allow a jury to view the place where the "material fact occurred." The purpose of viewing, however, is only to allow the jury to better appreciate and understand the evidence produced before them in open court. The purpose is not that of supplying evidence or allowing the jury to obtain new or additional evidence. State v. Lee Doon, *Page 615 7 Wash. 308, 34 P. 1103; State v. Much, 156 Wash. 403,287 P. 57; Laflin v. Chicago, W. N.R. Co., 33 Fed. 415; Wright v.Carpenter, 49 Cal. 607; Crane v. Oregon R. N. Co.,66 Ore. 317, 133 P. 810; Sorenson Co. v. Denver R.G.R. Co., 49 Utah 548,164 P. 1020; Norfolk v. Anthony, 117 Va. 777,86 S.E. 68; Southern Oregon Orchards Co. v. Bakke, 106 Ore. 20,210 P. 858; Geohegan v. Union Elevated R. Co., 258 Ill. 352,101 N.E. 577; Snyder v. State, 59 Ind. 105; Guinn v. Iowa St.L.R. Co., 131 Iowa 680, 109 N.W. 209.
If the rule was as contended for by appellant, it would make the individual view of each juror, derived from the view, an element in arriving at a conclusion as to the acts of the parties to the action without it being introduced in evidence for the benefit of the other jurors or for the benefit of the parties litigant.
[6] Instruction No. 20 was given by the court in the following language:
"Even if you find from the evidence in this case that plaintiff's vehicle was proceeding down the left hand portion of Pacific Avenue, if you further find that being in the position in which it was plaintiff's truck could not, in the moment before collision, due to its size and weight, evacuate that position, if you further find notwithstanding the foregoing that the truck was visible and lighted and that the operator of the Packard could have stopped before striking the same, then I instruct you that the driver of the Packard, Virgil Jones, deceased, the husband of the defendant herein, had the last clear chance to avoid the accident and that his failure so to do was negligence and your verdict shall be for the plaintiff."
It was improper to give this instruction. The doctrine of last clear chance has two phases, depending upon whether the party charged actually saw the person injured in time to have avoided the accident, or whether the individual charged should have seen the other in time to avoid the accident but really did not. *Page 616
Under the first phase involving actual knowledge of the other's plight, the rule of this court has been that the doctrine is applicable even though the negligence of the injured individual may have continued down to the moment of the impact.
Under the second phase, however, in which the individual charged should have seen the other in time to avoid the injury, but actually did not, the rule has no effect unless it is shown that the negligence of the injured party terminated or culminated in a situation of peril from which he could not extricate himself.
Considered from the view point of respondent, it is plain that the negligence of the driver of appellant's truck was not apparent until immediately before the moment of the impact. The driver of the truck was not in a position of danger until the moment he turned his truck in the path of the approaching coupe, and the driver of the coupe, had he seen him, would not be required to anticipate that the truck driver would so negligently conduct himself as to risk injury by turning in front of the moving car. There is no room for the application of the rule until the negligence of the injured person has commenced. Stubbsv. Boone, 164 Wash. 368, 2 P.2d 727.
In Hartley v. Lasater, 96 Wash. 407, 165 P. 106, we stated:
"Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation."
Accord: Burlie v. Stephens, 113 Wash. 182, 193 P. 684;Colwell v. Nygaard, 8 Wash. 2d 462, 112 P.2d 838.
On the other hand, if we consider the question as presented by appellant's evidence, we must hold that the instruction was erroneous for the reason that appellant's *Page 617
driver was not negligent and was not in a position of peril.
[7] Appellant contends that in any event the case should be reversed, for the reason that the driver of the coupe was guilty of contributory negligence, as a matter of law, and that erroneous instructions were not prejudicial.
The evidence adduced by respondent was sufficient, if believed by the jury, to have justified a verdict in her favor.
Appellant argues, however, that, by having four people in the front seat, the driver of the coupe violated Rem. Rev. Stat., Vol. 7A, § 6360-116 [P.C. § 2696-874], and for that reason was negligent and cannot recover.
The evidence given by respondent and Mr. and Mrs. Bernard showed that the activities of the driver of the coupe were not in any way restricted by the presence of the three persons occupying the seat with him. The question of whether or not the fact that four rode in the driver's seat contributed to the accident, was one for the consideration of the jury.
We are unable to hold that the driver of the coupe was guilty of such negligence as would preclude a verdict in favor of respondent.
We conclude that the instructions given to the jury were improper and that the court was justified in granting a motion for a new trial.
Order affirmed.
ROBINSON, C.J., BEALS, MILLARD, STEINERT, BLAKE, and JEFFERS, JJ., concur. *Page 618 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4000602/ | The plaintiff brought this action against the executrix of her divorced husband's estate, asking for a half interest in the estate property, and for an accounting of the rents and profits. From a judgment in favor of the defendants, plaintiff appeals.
Two questions are raised by appellant: first, was the property in question community property? and second, has appellant traced any of her own funds into the purchase of the properties?
[1] The first question is simple of answer. The appellant and the deceased were married at Dwight, Illinois, on July 5, 1900, where they both resided. He was a traveling jewelry salesman, his work taking him away from home about three months at a time, at the close of which he spent a week to ten days at home. Immediately after their marriage, they took a wedding trip to the coast, and probably passed through the state of Washington. They returned to Illinois and lived there as before, until they were divorced in 1920. They owned no home in Dwight, but occupied rooms close to appellant's parents. They discussed coming to Washington at some time to live, but never established a home nor lived here at any time, although he purchased property here and sold goods in this state. These facts demonstrate clearly and unmistakably that the home of the parties was at all times in Illinois.
Under the law of that state, during their married life there was no statute making property acquired during coverture community property. On the contrary, *Page 3
under the laws of that state, all property acquired by the decedent from the earnings of his labor was his separate property. It is the settled law of this state that personal property acquired by either spouse in a sister state where the law of the place of acquisition makes it separate property, continues to be of the same character when brought within this state.
In Brookman v. Durkee, 46 Wash. 578, 90 P. 914, 123 Am. St. 944, 13 Ann. Cas. 839, 12 L.R.A. (N.S.) 921, we announced the rule to be:
"Therefore, without entering further into the reasons for the rule, we are clear that personal property acquired by either husband or wife in a foreign jurisdiction, which is by law of the place where acquired the separate property of one or the other of the spouses, continues to be the separate property of that spouse when brought within this state; and it being the separate property of that spouse owning and bringing it here, property in this state, whether real or personal, received in exchange for it, or purchased by it if it be money, is also the separate property of such spouse."
This doctrine was reaffirmed by us in Witherill v.Fraunfelter, 46 Wash. 699, 91 P. 1086, and again in Meyers v.Albert, 76 Wash. 218, 135 P. 1003.
[2] Upon the second point, we are unable to find any substantial testimony in the record disclosing that any certain amount of appellant's funds went into any particular piece of property purchased by decedent. The nearest approach to such evidence is found in the testimony of appellant's sister who said that appellant had obtained one thousand dollars upon an insurance policy, had given it to decedent who put it into their joint checking account, and had drawn upon that account in the payment for the Walla Walla property. However, the witness neither knew the purchase price of the Walla Walla property nor had actual knowledge *Page 4
of whether the insurance money was actually paid thereon. Her testimony, while clear enough upon some points, is too vague and unsatisfactory for any court to find as established the fact that appellant's funds were used in the purchase of real property in this state, or, if they were used, in what amount or in what proportion the advancements so made bear to the purchase price.
Appellant, apparently recognizing this failure of proof, claims a half interest in the properties by reason of statements alleged to have been made by decedent in which he referred to himself and appellant as "partners." It may be assumed that decedent, if he used these words, used them not with reference to their marriage relation but to their material possessions; yet, even these words fail to indicate what that partnership was, whether equal or according to some understanding had between themselves, or whether based upon moneys advanced by appellant in proportion to the purchase price of the properties, or upon a gift by him to her of some interest therein. There is no presumption that there was an equal partnership, simply because under our community property laws the spouses are presumed to own equally property acquired after coverture. The burden was upon appellant to establish her claim of right to an interest in these properties and this, we are clear, she has failed to do.
[3] There is another compelling reason in this case which establishes the correctness of the judgment of the trial court. In 1920, decedent obtained a divorce in Illinois from appellant by default, and upon the ground of serious misconduct. At that time he alleged that all the property which had been acquired was either obtained through inheritance or as a result of his own labors, and prayed the court to so find, and determine it to be his, free from any claim of appellant. *Page 5
After hearing, the court entered its decree January 6, 1920, in part as follows:
"It is further ordered, adjudged and decreed that the defendant do not have and recover of the complainant any alimony either now or hereafter; that the title to all property, whether real or personal, heretofore used and enjoyed in common between them is the sole property of the complainant and the same is and forever shall remain free from any right of dower, homestead, claim or demand of any kind or description whatsoever by the defendant."
It is true that thereafter appellant sought to set aside the decree, which action, although carried to the supreme court of the state of Illinois, and finally to the supreme court of the United States, was denied. It was six years after the divorce decree was entered that decedent died. During this time, while her divorced husband was alive and all the necessary facts could have been gone into, appellant made no effort to establish any claim in the state of Washington to the property in question. Such conduct under all the circumstances hardly bespeaks any valid belief in a right to any part of the properties in question.
The judgment is affirmed.
MACKINTOSH, C.J., MAIN, FULLERTON, and HOLCOMB, JJ., concur. *Page 6 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1897207/ | 451 F. Supp. 355 (1978)
SECURITIES AND EXCHANGE COMMISSION, and Securities Investor Protection Corporation, Plaintiffs,
v.
KENNETH BOVE & CO., INC., Defendant.
No. 72 Civ. 2287 (MP).
United States District Court, S. D. New York.
June 1, 1978.
*356 Kevin H. Bell, Washington, D. C., for plaintiff Securities Investor Protection Corp.
William W. Golub, pro se.
Rosenman, Colin, Freund, Lewis & Cohen, New York City, for trustee.
MEMORANDUM ON FEE APPLICATIONS
POLLACK, District Judge.
The Trustee and counsel have applied for final fee allowances for their services in connection with the liquidation of a brokerage firm pursuant to the Securities Investor Protection Act of 1970, 15 U.S.C. §§ 78aaa et seq. (SIPA hereafter). Kenneth Bruce & Co., the broker-dealer, was taken over for liquidation in 1972. William W. Golub, Esq. was named Temporary Receiver on May 25 of that year, and Trustee on August 17. In due course, the law firm of Rosenman Colin Freund Lewis & Cohen[*] was named as Trustee's counsel. Golub is a senior partner of the Rosenman firm. In addition, Touche Ross & Co. were appointed to be the Trustee's accountants.
The fees sought total $460,000: $104,000 for the Trustee and $356,000 for his law firm. Counsel also seeks $12,882.09 as reimbursement for expenses. The applicants heretofore have received $150,000 on account of the final allowances to be made herein: $35,000 for the Trustee and $115,000 for his attorneys.
*357 The Securities Investor Protection Corporation (SIPC hereafter) has filed affidavits of its General Counsel stating that in the agency's opinion, the fees requested are reasonable. SIPC will furnish sufficient funds to permit payment of such allowances as this Court might award.
The clear intent of SIPA is to make section 241 of the Bankruptcy Act, 11 U.S.C. § 641, applicable to fee allowances in brokerage liquidations. See 15 U.S.C. § 78fff(c)(1). That section provides that "the judge may allow . . . reasonable compensation for services rendered . . in a proceeding under this chapter . . . by the trustee and . . . [his] attorneys." Section 241 also specifically makes inapplicable section 48 of the Bankruptcy Act, 11 U.S.C. § 76, which governs the trustee's compensation in straight bankruptcies. Thus, as in Chapter X reorganizations and unlike straight bankruptcies, rigid economy is not the primary criterion for fee allowances in SIPC liquidations. At the same time, the Court must be careful to avoid permitting a brokerage liquidation to be turned into an opportunity for vicarious generosity at the expense of a stricken entity, or of the brokerage community which supports SIPC. SIPC v. Charisma Securities Corp., 352 F. Supp. 302, 306 (S.D.N.Y. 1972).
The debtor.
Kenneth Bove & Co., Inc., a stockbrokerage organization, had its principal office at 42 Broadway, New York City. It also had five branch offices: two in New York City, and one in each of Boston, Los Angeles and Miami. The organization employed about 155 employees, and held approximately 7,000 customers' accounts. Assets subject to administration, including money advanced by SIPC, totalled about $6,000,000. Securities worth nearly $3,500,000 and almost $912,000 in cash were distributed to Bove's customers.
The Trustee.
William Golub has been a member of the New York Bar for approximately forty years. He has extensive experience with respect to securities, reorganizations and bankruptcies: he served as trustee in another broker-dealer liquidation under SIPA, and as counsel to trustees and receivers in other insolvency proceedings. He acts as the attorney in charge of the Rosenman firm in such matters, and is recognized as one of the leading members of the bar in his field. His appointment as Trustee no doubt was based on the legal expertise which he was expected to, and did, employ, and his fee application certainly requests compensation for services beyond caretaking and responsibility for the assets.
Following his appointment, the Trustee took possession of the enterprise for liquidation, inventoried its assets, and took the necessary steps to discontinue its business. He established communications with customers and issued statements of their accounts. He took possession of securities on hand and invested available cash. Appraisals were arranged, and the debtor's tangible property was sold.
The Trustee engaged a permanent staff of eight of Bove's employees, as well as additional full time employees to expedite the transfer and delivery of securities, with SIPC's advance authorization and approval. He also hired temporary personnel from time to time to perform various clerical tasks. The accountants collated and prepared the requisite financial information relating to the estate, segregating assets into appropriate categories and making the necessary calculations and summaries. The resulting statements were not audited. For these services, the accountants have been paid a total of $307,188.05.
To detail the services performed by the Trustee, as set out at length in his initial 1975 fee application, would unnecessarily expand this review. Suffice it to say that he maintained close control of the liquidation and did whatever needed to be done. He attended at Bove's offices two or three days a week, was in daily communication with his office manager there, and conferred with his office staff and accountants at least once a week. A major time-consuming *358 duty was to receive and respond to an endless stream of inquiries by customers, broker-dealers, priority claimants, general creditors, and SIPC and other governmental agencies.
In his 1975 application, the Trustee wrote that it was
"essential for applicant to devote a major portion of his time to the performance of his duties herein over extended periods. Moreover, with relatively few exceptions, applicant was called upon to perform some services on a daily basis throughout the course of this proceeding."
Expenses of administration, including accountants' fees but not including allowances for the Trustee or his counsel, total $738,908.12 to date.
Beginning in December, 1973 with the substantial completion of the distribution of cash and securities, the Trustee released employees who were no longer needed and combined the functions of the remainder. The estate appeared essentially ready to close on April 29, 1975, the only then open items being a tax refund claim and a dispute over withholding tax incurred during the administration period. In his application of April 30, 1975, the Trustee requested an allowance of $95,000, noting the services still to be performed. He also disclosed that the fee which was allowed would be shared with his law partners in the same manner as all other professional partnership income.
The Trustee recently amended the 1975 application, reporting that with the addition of the time which he devoted to administration in the interim, he spent 1,406.75 hours on this proceeding through December 31, 1977. He estimated that fifteen more hours probably would be required before the case was closed. On this basis, he requests an allowance of $104,000, pointing out that this is substantially less than the regular rate which his firm charges for his services.
Trustee's counsel.
The Trustee's partners have submitted a separate application for a fee for the law firm. It contains a historical review of the proceedings similar in outline and content to the Trustee's, except possibly more expansive. It claims that the Trustee's partners devoted 1,057 hours to this proceeding, that associates employed by the firm contributed 6,438.5 hours, and that the firm's paralegals supplied 1,968 hours. On this basis the firm requests $360,000, which as SIPC points out amounts to an average of $43.32 per hour.
The papers submitted did not provide enough information to permit an appropriate evaluation of the fee application. Cf. City of Detroit v. Grinnell Corp., 495 F.2d 448, 470-73 (2d Cir. 1974) (attorneys' fees in class action settlement). Accordingly, the Court requested and received a breakdown of the hours spent by individual associates and paralegals on this proceeding, together with their respective rates of compensation. In addition, since the services described in the application include many mechanical functions not calling for professional legal work, the Court requested a breakdown of the time spent by associates and paralegals on non-legal, clerical and ministerial duties. However, the firm has advised the Court that no such segregation was or could be made. The partnership states that "all the work covered by our firm's application was typical of the activities of counsel for a Trustee in a Chapter X proceeding."
Discussion.
The fee application by Trustee's counsel is troublesome in two respects. Both difficulties arise in part from the commingling of interests which occurs when a trustee's lawyers also are his law partners, and they share one another's fees. A lawyer-trustee's employment of his own law firm is a questionable practice in substantial estates, see In re Ira Haupt & Co., 361 F.2d 164 (2d Cir. 1966) (dictum), especially when the trustee has been selected by SIPC for his legal expertise.
As Judge Friendly pointed out in Haupt, the Court should be able to rely on the trustee for assistance in assessing the necessary expenses of administration. Yet, a *359 trustee who is represented by his own firm disables himself from offering such assistance with respect to the application for counsel fees. Thus, although the trustee is not prohibited from utilizing his own firm, to do so causes serious problems when compensation is sought. 361 F.2d at 168.
In the instant case, difficulties arise, first, in connection with segregating the work attributable to the law firm from that of the Trustee. The recital of the entire history of the liquidation, set forth in both applications, furnishes no basis for measuring the worth of the Trustee's and the firm's separate services. It is not amiss again to recall that the Trustee, a highly experienced attorney, claims to have spent a major portion of his time on this case for two and a half years.
The litigation services described in the firm's application are, of course, viewed as distinct from the services expected from the Trustee. Litigation, however, can account for only a small fraction of the claimed legal fees. Actions prosecuted by counsel resulted in payments to the Trustee totalling $57,563 and waivers of claims with a face amount of $14,725, in all about a fifth of the amount sought in fees.
So far as the Court could observe, the legal issues posed by this liquidation were relatively simple. As the accredited legal expert on such matters, the Trustee himself undoubtedly passed upon legal questions of any consequence. Accordingly, some of the legal services supplied by his firm seemingly were unnecessary or duplicative. To compensate both the Trustee and the firm in the amounts claimed in their applications might well involve a redundant and improvident expenditure.
The second difficulty presented by the firm's application is that it is impossible to ascertain how many hours were devoted to professional legal work, compensable by a fee award, and how many were devoted to non-legal services, so as to be compensable only as reimbursable disbursements. According to the table submitted by the firm, the average salaries for its associates were $20,000-26,000, and $11,425 for its paralegals. Assuming that the firm can bill 1,500 hours per annum for each employee, its average salary expense per hour was $13.33-17.33 for associates and $7.62 for paralegals. Even when account is taken of higher hourly rates for partners and the overhead attributable to employees, it seems clear that the firm's application, at a mixed rate of $43.20 per hour, seeks a profit on every hour expended on this proceeding.
Only services requiring legal expertise are compensable by an award of counsel's fees. In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir. 1968); Bankruptcy Rule 10-215(c)(3) (formerly Rule 219(c)(3)). Even if the hours devoted to non-legal matters by firm personnel were a prudent expenditure of time, they may only be reimbursed at cost.
Enumeration of the hours spent on clerical and ministerial services is doubly essential because the Trustee, as a partner of the firm representing him as counsel, will share in the firm's profits. The rule permitting trustees to share in the compensation received by a law firm of which he is a partner, Bankruptcy Rule 10-215(d) (formerly Rule 219(d)) must be read in its context as an exception to the general principle, that a trustee may not derive any profit from the rendition of services to the estate, York International Building Co. v. Chaney, 527 F.2d 1061, 1075-76 (9th Cir. 1975); Sexton v. Sword S.S. Line, Inc., 118 F.2d 708, 710-11 (2d Cir. 1941). Thus, the fee application of a law firm of which the trustee is a partner must carefully segregate the services rendered, lest the trustee be permitted to profit from non-legal services to the estate in violation of his fiduciary duties.
There is no evidence that SIPC addressed these questions in reviewing the applications before giving its blanket approval. SIPC owes the brokerage community which supports it a closer consideration of such troublesome matters.
Years have passed since most of the services for which compensation is sought were rendered. Consequently, the opportunity to question the propriety of the retention of *360 the Trustee's own firm as counsel, and to insist on more detailed recordkeeping, has been lost with respect to this proceeding.
In order fairly to fix the amounts of compensation in spite of these obstacles, the Court has carefully scrutinized the applications and supporting affidavits. In addition, the Court obtained and examined the docket and other materials from the court files, to supplement the parties' submissions. Thus, the Court is as fully informed as possible under the circumstances as to the services performed by the applicants and their context in the whole liquidation. Finally, the Court necessarily relied on its own extensive experience in private law practice.
On the basis of careful deliberation, and a realistic evaluation of the imponderables, the Trustee shall be awarded the sum of $104,000 and the firm shall be awarded a fee of $237,500 together with $12,882.09 in reimbursement for expenses. From these amounts there shall be deducted the sums previously allowed on account of the final fee awards. Accordingly, the Trustee shall receive the net sum of $69,000 and the firm shall receive the total net sum of $135,382.09.
This shall constitute an order authorizing such payments.
SO ORDERED.
NOTES
[*] Known at the time of appointment as Rosenman Colin Kaye Petschek Freund & Emil. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1896834/ | 684 F. Supp. 607 (1988)
Eddie SMITH, Plaintiff,
v.
ROCKWOOD INSURANCE COMPANY and Crawford & Company, Defendants.
No. LR-C-86-518.
United States District Court, E.D. Arkansas, W.D.
May 3, 1988.
Robert Pschiemer, Little Rock, Ark., for Eddie Smith.
Tom F. Lovett, Little Rock, Ark., for Rockwood Ins. Co.
Walter Murray, Bill Frye, Little Rock, Ark., for Crawford & Co.
MEMORANDUM AND ORDER
HENRY WOODS, District Judge.
Defendants Rockwood Insurance Company and Crawford and Company and plaintiff Eddie Smith have motions for summary judgment now before the Court.
As stated by the United States Supreme Court, in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 488, 7 L. Ed. 2d 458 (1962):
Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case "show that ... there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.Rules Civ.Proc.
In compliance with Local Rule 29, the parties have submitted statements of the material facts as to which they contend there is no genuine issue to be tried. Based on the statements of the parties, and for the sole purpose of consideration of these motions, we accept the following facts as true, and turn now to the defendants' motions for summary judgment.
*608 1. Plaintiff was an employee of Royal Floor Covering and was injured in the course of his employment on or about March 28, 1983.
2. Defendant Rockwood Insurance Company was the workers' compensation insurance carrier for Royal Floor Covering at the time of plaintiff's injury.
3. Defendant Crawford and Company was the insurance adjuster which the insurance carrier employed on plaintiff's claim.
4. Defendants caused repeated delays in payment of temporary total disability benefits when the plaintiff was clearly entitled to the benefits, despite plaintiff's repeated demands for payment.
5. Defendants failed to pay temporary total disability benefits when the plaintiff was clearly entitled to the benefits, and despite plaintiff's repeated demands for payment.
6. Defendants failed to pay permanent disability benefits, after the assignment of a permanent medical impairment rating by his physician, plaintiff being clearly entitled to the benefits, and making repeated demands for payment.
7. Defendants delayed payment of certain medical bills and refused to pay for hospitalization for plaintiff despite an Administrative Law Judge's Order to do so, filing a frivolous, meritless appeal to the Administrative Law Judge's Order in an effort to delay plaintiff's hospitalization, all done despite plaintiff's being clearly entitled to payment and despite repeated demands for payment.
8. Defendants, through their agent, servant, or employee, Melanie Zumstein, an employee of Crawford and Company, established grossly inadequate reserves despite knowledge that the plaintiff's injuries were severe and likely disabling.
9. Melanie Zumstein, of Crawford and Company, made false statements to the plaintiff's legal representatives on two occasions.
10. Melanie Zumstein tried to discourage plaintiff's employer from ever hiring plaintiff again.
11. The defendants ignored medical information in their possession which showed that plaintiff was entitled to temporary total disability benefits and failed to pay same. Defendants also ignored medical information in their possession which showed that the plaintiff's physician had assigned a permanent impairment rating to the plaintiff, and the defendants failed to pay permanent disability benefits that the plaintiff was entitled to because of that rating.
12. Plaintiff's complaint alleges that defendants have committed the tort of bad faith, fraud, and intentional infliction of severe mental and emotional distress.
Working from these facts which we accept as true, we next note that we must determine how these facts relate to the pertinent statute in this case, Ark.Code Ann. § 11-9-105(a) (1987), which provides:
The rights and remedies granted to an employee subject to the provision of this chapter [the "Workers Compensation Law"], on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer or any principal, officer, director, stockholder, or partner acting in their capacity as an employer, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer.
The defendants, in almost identical motions for summary judgment, argue that the Arkansas Supreme Court has construed the statute in question so as to bar, as a matter of law, plaintiff's claim in this court. Plaintiff contends that the facts of his case are distinguishable from any cases previously decided by the Arkansas Supreme Court, that the Arkansas Supreme Court has not yet ruled whether there may be a bad-faith tort action based on mishandling of a workers' compensation claim, and that he is therefore not barred from pursuing this action. If the Arkansas Supreme Court has construed the statute in light of facts similar to those before us, we are bound to follow that construction. Slaaten *609 v. Cliff's Drilling Co., 748 F.2d 1275 (8th Cir.1984).
In determining whether the Arkansas Supreme Court has found that the tort of bad faith is actionable against a workers' compensation insurance carrier, we initially note that the tort of bad faith is available in other types of insurance cases. Aetna v. Broadway Arms, 281 Ark. 128, 664 S.W.2d 463 (1984); Employers Equitable Life Insurance v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984). However, the narrower issue of whether the tort of bad faith is available against a workers' compensation insurance carrier is discussed in the more recent case of Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986). A few excerpts from the brief opinion in Cain summarize the case:
This third-party tort of bad faith action was filed by a workers' compensation claimant against the compensation insurer. The claimant pleaded that the insurer stipulated it was liable for all medical expenses, but failed to pay those expenses and, as a direct result, the claimant suffered emotional distress, humiliation, and embarrassment. The trial court dismissed the complaint. We affirm [emphasis added]....
We have previously ruled on this issue. In Johnson v. Houston General Insurance Co., 259 Ark. 724, 536 S.W.2d 121 (1976), we held that the benefits payable pursuant to the workers' compensation act, and the procedure set out in that act for obtaining those benefits, constitute an exclusive remedy, and that remedy precludes an action at law, even for an intentional tort arising out of the nonpayment of benefits [emphasis added].
The case of Johnson v. Houston General Ins. Co., 259 Ark. 725, 536 S.W.2d 121 (1976), cited in Cain was an appeal from the trial court's dismissal of the complaint for failure to state a cause of action. Plaintiff, injured while in the course of employment, was awarded a lump-sum amount by the Workers' Compensation Commission in October of 1974. When plaintiff did not receive his payment from the insurance carrier, he brought suit in March, 1975, alleging that the defendant withheld payment "for the purpose of harassment, vexation and torment," that the defendant's conduct was "retaliatory and spiteful," and that plaintiff had been caused "substantial mental anguish, injury, and damages" as a result of defendant's behavior. The Arkansas Supreme Court, in affirming the dismissal of the complaint at the trial level, found meritless the plaintiff's argument that the Workers' Compensation Act was not the exclusive remedy under the facts of the case. We can say, based upon Cain and Johnson, that the Workers' Compensation Act is an exclusive remedy precluding actions at law "even for an intentional tort arising out of the nonpayment of benefits." Cain, 290 Ark. at 240, 718 S.W.2d 444.
Plaintiff strenuously contends that his facts are distinguishable from Cain and Johnson in that affirmative acts of misconduct have occurred in the case at bar. For example, the defendants' insurance adjuster lied concerning an alleged conversation with plaintiff's employer, and defendants' insurance adjuster discouraged plaintiff's employer from hiring plaintiff back after the injury. Though plaintiff urges that the above acts should be characterized as affirmative acts of misconduct which distinguish the case at bar factually from the Johnson and Cain cases, we do not agree.
An examination of the dissenting opinion in Cain emphasizes the similarity of the complaint in that case with the one at bar. The Cain dissent pointed out that the tort of bad faith had been recognized in the context of some types of insurance, citing Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978), and Aetna v. Broadway Arms, 281 Ark. 128, 664 S.W.2d 463 (1984). The dissent further observed:
that a claim based on the tort of bad faith must include allegations of affirmative misconduct by the insurance company, without a good faith defense, and that the misconduct must be dishonest, malicious, or oppressive in an attempt to avoid its liability under an insurance policy. *610 Cain v. National Union Life Ins. Co., supra, at 445, 718 S.W.2d 444.
After stating these requisites of a bad-faith claim, the dissent went on to say that the complaint in Cain "tracked" these prior decisions which had recognized the tort of bad faith. Id. Those allegations necessarily included facts similar to those herein, namely, that the defendants' "affirmative misconduct" was "dishonest, malicious, or oppressive."
A review of paragraph 10 of the complaint, a catalog of the affirmative wrongdoings of defendants, bolsters our belief that this action is barred. Seven subparagraphs set forth the specific acts of the defendants. The fourth subparagraph (10(d)) provides that defendants intentionally, wrongfully, and fraudulently made statements which were false and were made "with the intent and design to deceive and avoid payment" under the workers' compensation insurance policy. The complaint notes that defendants stated that certain conversations had taken place between defendants and plaintiff's physician and employer, when the conversations had not occurred. These alleged conversations, according to the complaint, were a "pretext to avoid liability" under the insurance policy. The allegations of paragraph 10 of the complaint clearly indicate that plaintiff seeks relief for an intentional tort arising out of the nonpayment of benefits.
We note again that the Arkansas Supreme Court found the Workers' Compensation Act the exclusive remedy in Cain, precluding an action at law, even for an intentional tort arising out of the nonpayment of benefits. We believe the complaint before us seeks relief based upon an intentional tort arising out of the nonpayment of benefits. Thus, plaintiff's sole remedy is relief under the workers' compensation law of Arkansas.
We are aware of the case of Heskett v. Fisher Laundry and Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 23 (1950), where an employee, intentionally attacked by his employer during the course of his employment, was afforded a common-law remedy in tort. We do not believe that the Arkansas Supreme Court, in Johnson or Cain, overruled Heskett or held that there can never be an action in tort against the employer or the workers' compensation insurance carrier. However, the Arkansas court is quite clear that the common-law remedy for an intentional tort is not available for acts arising out of the nonpayment of benefits. We find plaintiff's action to be one for relief for intentional acts arising out of the nonpayment of benefits, as in Cain and Johnson, and that we are bound to follow the Arkansas Supreme Court's previous construction of the statute. Therefore, the workers' compensation statutes provide the exclusive remedy for plaintiff, and summary judgment should be entered in favor of the defendants.[1]
NOTES
[1] Plaintiff's motion for summary judgment is denied. All pending discovery motions are moot as a result of the granting of the defendants' motion for summary judgment and are therefore denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1897158/ | 451 F.Supp. 260 (1978)
Cyril G. BARBACCIA, Lena M. Barbaccia, Louis P. Barbaccia, Eva M. Barbaccia, Albert B. Smith, Isabel A. Smith, William J. Mabie, and Inez Mabie, Plaintiffs,
v.
The COUNTY OF SANTA CLARA, the City of San Jose, Sig Sanchez, Dominic Cortese, Dan McCorquodale, Rodney Diridon and Geraldine Steinberg, Individually and as members of the Board of Supervisors of the County of Santa Clara, Janet Gray Hayes, Joseph A. Colla, Lawrence R. Pegram, Roy B. Naylor, Susanne B. Wilson, Jim Self, and Alfredo Garza, Jr., Individually and as members of the City Council of San Jose, Defendants.
Civ. No. C-76-1182 SW.
United States District Court, N. D. California.
May 10, 1978.
*261 *262 Selby Brown, Jr., County Counsel, Allan R. Saxe, Richard K. Abdalah, Deputy County Counsels, San Jose, Cal., for County defendants.
Evelle J. Younger, Atty. Gen. of the State of California, Larry C. King, Deputy Atty. Gen., Sacramento, Cal., for People of the State of California.
Goldstein, Barceloux & Goldstein, San Francisco, Cal., Watson, Tedesco, Sanguinetti & Alphonse, Campbell, Cal., for plaintiffs.
Peter G. Stone, City Atty., Richard K. Karren, Asst. City Atty., Harry Kevorkian, Div. Chief Atty., Robert W. Hurley, Deputy City Atty., William M. Siegel, County Counsel, James T. Rohner, Allan R. Saxe, Deputy County Counsels, San Jose, Cal., for defendants.
MEMORANDUM OF OPINION
SPENCER WILLIAMS, District Judge.
Plaintiffs filed this action in June of 1976 alleging, inter alia, that the City of San Jose and the County of Santa Clara, as well as certain city and county officials, had violated plaintiffs' constitutional rights by taking their property without just compensation and otherwise denying them due process and equal protection of the law. Shortly after the complaint was filed all the defendants moved the court to dismiss or abstain. A preliminary hearing was held on November 19, 1976 at which time the court continued the motions for the purpose of allowing the plaintiffs the opportunity to process some application or seek some land use approval from the city and county defendants. This temporary and informal abstention proved salutary. On August 16, 1977 the Board of Supervisors of Santa Clara County acted upon plaintiffs' application and rezoned the property from R1-1AC (one residence per 10 acres) to R1-6 (one residence per 6,000 square feet). At a second hearing on defendants' motions, held November 18, 1977, the court dismissed the county defendants because the county had voluntarily provided the relief which plaintiffs sought. At the same time the court took under advisement the city defendants' motion to dismiss or abstain. Having carefully considered the parties arguments the court denies the motion with minor exceptions set forth below.
FACTUAL BACKGROUND
Plaintiffs are owners of 98.8 acres of land in Santa Clara County located to the west of Cottle Boulevard and to the south of the proposed West Valley Freeway. The property, which plaintiffs have owned since the 1940's, became surrounded by the City of San Jose in recent years as the city expanded and annexed adjoining land. Recognizing the city's interest, in, and probable acquisition of, this island in its midst, the county relinquished to the city much of its control over the property. The county retained some regulatory authority, but local *263 agency formation agreements and amended City Policies 61 and 62 brought the property within the city's designated area and sphere of influence and subjected it to city planning and developmental control. An important consequence of this dual control is that plaintiffs' land is included in the growth plans adopted by both entities, plans which at the present time express inconsistent visions of appropriate use. The county, at all times relevant herein, has designated the property for residential development. The city, on the other hand, designated the property for residential development at a density of 5 + units per acre prior to 1971 and then amended its general plan to designate the property as private recreational open space.
Plaintiffs first attempted to develop their property in 1966 when they submitted to the county a proposal for a light industrial park. The proposal was rejected on the ground that the land, like adjoining property, was best suited for eventual residential development. Presumably plaintiffs could have obtained approval from the city for annexation and residential development at this time since the city annexed surrounding property for such development throughout this period. No doubt hoping for greater appreciation in land values as the area grew, plaintiffs postponed development and built a golf course on the property at a cost in excess of one million dollars. The golf course produced modest profits for several years but is in financial trouble today, allegedly due to competition from city and county operated courses not subject to taxation. Plaintiffs contend that the presence of these public courses make profitable operation of their course impossible[1]. The golf course is operated by a tenant under a lease that nominally runs to 1986 but is terminable by the plaintiffs at an earlier date.
By 1972-1973 the combination of soaring land values and declining golf course revenues led plaintiffs to seek residential development of their property. While plaintiffs were proceeding with their development plans, a number of adjoining property owners allegedly began meeting with city officials in an effort to persuade the city to purchase the property so that the golf course might be preserved. Plaintiffs learned of these overtures and initiated direct negotiations with the city regarding public acquisition. During the course of these negotiations and discussions the city was urged to purchase the property or to put the question of purchase before the public in the May, 1975 bond election. The city failed to pursue either alternative, but agreed with the plaintiffs to jointly retain a real estate appraiser to value the property. The appraiser's report, received on July 23, 1975 set the value of the land at $4.4 million dollars based upon its residential and/or commercial value. According to the plaintiffs the city's interest in the acquisition dimmed markedly at this point.
Plaintiffs' development plans were equally unsuccessful. They submitted plans for a redevelopment entitled Oak Ridge Village which contemplated construction of detached, single family homes similar to those in the surrounding neighborhoods. The city's Environmental Commission found no reason to deny approval, but recommended public acquisition of the land as an alternative. The City Planning Commission also found the design unobjectionable. However, the commission recommended denial of the application in light of the 1971 amendment to the general plan calling for the preservation of the land as open space. On July 29, 1975, one week after the appraiser's report had been received, the San Jose City Council voted to reject plaintiffs' proposed development and denied pre-zoning for annexation. Neither plaintiffs nor their representatives were present at the council meeting allegedly because city officials deliberately misled them into believing the vote on their application would be taken at a later meeting. Apparently, the sole reason the city council denied the Oak *264 Ridge application was the desire to retain the land as a golf course or other use consistent with the open space designation in the general plan.
Subsequent to the filing of this lawsuit plaintiffs applied to the county for rezoning of their property from a one residence per 10 acre designation to a one residence per 6,000 square feet designation. The County Board of Supervisors granted the rezoning but noted that development of the property at this density could occur only if the plaintiffs were allowed access to the city sewer system. Plaintiffs allege that development at the lesser one unit per ten-acre density would be disallowed as well without city sewer hook-ups since the physical conditions of the property make development using septic tanks inappropriate. At the hearing on defendants' motion to dismiss, counsel for the city informed the court that the city is precluded by local ordinance from providing sewer hook-ups to residential users outside city limits.[2]
Chronicling the above course of events plaintiffs conclude they have been deprived of all profitable use of their land: the golf course cannot be operated in competition with public courses except at a loss; no other private recreational use can be conducted profitably on the property; and all residential development is barred absent city sewer hook-ups.
MOTION TO ABSTAIN
Preliminarily defendants urge this court to decline to exercise its jurisdiction over this cause of action because it involves a traditional land use and zoning dispute. California's complex regulatory scheme of land use control should not be disrupted by federal intervention, defendants urge, where California courts are equally competent to adjudicate federal constitutional claims and more familiar with local zoning laws.
The policy considerations of comity and judicial economy upon which the abstention doctrine rests look to the potential for conflict in federal-state relations. This particular controversy does not presage a federal-state conflict arising from state court decisions which may substantially eliminate or minimize federal constitutional issues. Railroad Comm'n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1943). Neither does it promise insensitive and unnecessary disruption of a complex regulatory scheme. Burford v. Sun Oil, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In short, abstention would be justified in this case only if it were appropriate in all California land use cases. A federal court cannot channel federal constitutional issues to state courts merely to avoid a federal decision, Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), rather it is the obligation of a federal court to exercise its discretion in each case disavowing jurisdiction only where the potential for conflict in federal-state relations clearly outweighs the plaintiffs right to a federal trial. The unique factual circumstances of this case suggest that any decision by this court is not likely to have significant precedential value or upset any particular scheme of regulation. Therefore, defendants' motion to abstain is denied.
MOTION TO DISMISS
The motion to dismiss pursuant to Fed.R. Civ.Pro. 12(b)(6) advances independent theories to demonstrate that the complaint *265 fails to state a claim. Defendants' arguments the facts alleged do not constitute a taking, the claims are barred for untimeliness, and recovery is precluded by immunities are considered seriatim.
Taking
Defendants have moved to dismiss asserting there is no case or controversy because plaintiffs have failed to allege facts sufficient to state an unconstitutional taking. The gist of the complaint, defendants argue, is that the city (1) amended its general plan in 1971 designating plaintiffs' property as open space; (2) failed to adopt a pre-annexation zoning ordinance in 1975 on plaintiffs' application; (3) expressed a desire to acquire plaintiffs' property but never carried such a plan to fruition; and (4) acted in concert with the County of Santa Clara to damage plaintiffs' property. By defendants' estimation these allegations are not enough. Premising their argument for dismissal on California law, defendants rely most heavily on Selby v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111 (1973) and Dale v. City of Mountain View, 55 Cal.App.3d 101, 127 Cal. Rptr. 520 (1976).
The California Supreme Court in the Selby case sustained a demur to a complaint for inverse condemnation where the plaintiff only had alleged the defendant county had adopted a general plan which might require a partial dedication of plaintiff's land for a street extension at some indefinite future time. Noting the singular importance of general plans, the court wrote:
[A]doption of a general plan is several leagues short of a firm declaration of an intention to condemn property. . . . In order to state a cause of action for inverse condemnation, there must be an invasion or appropriation of some valuable property right which the landowner possesses and the invasion or appropriation must directly and specially affect the landowner to his injury. 10 Cal.3d at 119-20, 109 Cal.Rptr. at 805, 514 P.2d at 117.
Since the county had placed no obstacles in the path of plaintiff's use of his land by way of a denial of a permit to build or other specific action there was no invasion or appropriation of any valuable property right.
A similar result was reached by the court of appeal in the Dale case where the owner of a golf course located in an area zoned for agricultural use sought rezoning for residential development. The city of Mountain View declined to rezone the property and shortly thereafter amended its general plan designating plaintiffs' land for open space recreational uses. Relying on Selby the Dale court found that the plaintiffs failed to state a claim for inverse condemnation.
In the instant case, there was no rezoning, no specific denial of any permit to the Dales that occurred after the city's adoption of [its amendment] to the general plan. The city's resolution merely confirmed an existing use and zoning classification . . .. 55 Cal.App.3d at 108, 127 Cal.Rptr. at 524.
Defendants' reliance on these cases is misplaced. Selby and Dale held that the adoption of a general plan cannot constitute a taking; rather, a claim for inverse condemnation is stated only when the public entity goes beyond adoption and takes steps toward implementation of the plan which invade or appropriate valuable property rights in an immediate and tangible fashion. Thus, in Dale, no claim for inverse condemnation was stated because the city had done nothing following amendment to its general plan to interfere with plaintiffs' use of their property; that is, the city did not deny the plaintiffs' request for a zoning change based on provisions of the amended plan, the only denial came before the adoption of the open space designation. In Selby the plaintiff had based his inverse condemnation claim solely on the county's adoption of a general plan.
Plaintiffs in the instant case have alleged more than adoption (amendment) of a general plan. Unlike the plaintiffs in Selby and Dale, plaintiffs here maintain the defendants, acting under authority of the *266 1971 amendment to the general plan, took specific action in 1975 which resulted in the appropriation of a valuable property right. They do not allege harm from adoption of the plan but from the city's action pursuant to that plan.
Defendants also argue the complaint fails to state a claim because there is no legal relationship between the city and plaintiffs' property. It is true the California Constitution prohibits the extraterritorial application of a municipality's police power. But, that fact does not compel the conclusion defendants lacked the opportunity to condemn plaintiffs' property for public use without just compensation. The extraordinarily unique circumstances of this case cannot be disregarded. Although plaintiffs' property is technically outside the formal city limits, it has been subjected to city planning and regulation by local agency agreements and city policies. The city has successfully blocked development by its refusal to pre-zone and annex and by its refusal or inability to provide city sewer hook-ups. In the majority of cases a municipality will have no obligation to annex surrounding territory or provide non-city users access to its sewer system, but when a city envelopes county land and then, while holding a monopoly on the disposal of sewerage, denies annexation or sewer hook-ups the city cannot hide behind the fiction that its power and responsibility stops at its borders. After enjoying the benefits of regulating the property in question it ill becomes the city to deny its own effectiveness.
Viewing the allegations of the complaint as true and considering the total course of conduct thereby portrayed, the court concludes plaintiffs have stated a claim for an unconstitutional taking. Compare with, Arastra Limited Partnership v. City of Palo Alto, 401 F.Supp. 962 (N.D.Cal.1975); Klopping v. City of Whittier, 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972); Peacock v. County of Sacramento, 271 Cal.App.2d 845, 77 Cal.Rptr. 391 (1969). Neither the nature and sequence of the actions alleged, nor the relationship of the parties defeats the taking claim. Furthermore, as this court has previously observed, the determination of whether a taking has occurred is essentially a factual one, and therefore not appropriate to a motion to dismiss. M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354 (N.D.Cal.1975); accord, Dahl v. City of Palo Alto, 372 F.Supp. 647 (N.D.Cal. 1974); Sanfilippo v. County of Santa Cruz, 415 F.Supp. 1340 (N.D.Cal.1976).
Statute of Limitations
Plaintiffs' second claim for relief, labeled inverse condemnation, is based upon Article I, section 19, of the California Constitution, and the ninth claim for relief is based upon 42 U.S.C. § 1983. Defendants move to dismiss these claims on the ground they are barred by the statute of limitations. The applicable statute is five years for the inverse condemnation, Cal.Civ.Pro.Code §§ 318, 319 (West), and three years for the § 1983 claim, Cal.Civ.Pro.Code § 338 (West). Defendants contend the statute should run from the date of the city's amendment to its general plan in March of 1971. Plaintiffs, on the other hand, contend the statute runs from the date the city denied their development proposal in July of 1975.
Resolution of this dispute is controlled by United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). The Supreme Court held in Dickinson that where a continuous chain of events or course of conduct is involved the cause of action accrues at the time of the final act in that series of events or course of conduct. 331 U.S. at 748-49, 67 S.Ct. 1382. The purpose of this rule is not only to avoid multiple actions but to allow aggrieved property owners to assess the full extent of their losses before filing suit. This rule has also been adopted in California, Pierpont Inn, Inc. v. California, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969). Based upon these cases plaintiffs' cause of action did not accrue until July 1975 when the defendants denied plaintiffs' development proposal. As defendants so vigorously maintain, the amendment of the general plan designating plaintiffs' property as *267 open space did not give rise to a cause of action; only when the city sought to effectuate the open space designation by denying plaintiffs' application for development did the cause mature.
California Claims Statute
On the same theory advanced above, namely that plaintiffs' claim accrued in 1971, defendants seek dismissal of all damage claims against the city because a demand pursuant to California Government Code § 911.2 was not filed within one year of March 29, 1971. Plaintiffs filed a claim within one year of the July 1975 council meeting where pre-annexation zoning was denied. For the reasons given above, plaintiffs' filing was timely and the court need not determine whether the California statute would be effective to limit federal constitutional rights.
Immunities
Defendants assert all monetary claims against individual members of the city council and the city should be dismissed on grounds of statutory and common law immunity. This court has previously observed that California statutes protecting public entities from suit for monetary damages growing out of local land use regulation do not apply in actions brought to enforce federal constitutional provisions guaranteeing just compensation for public taking of private property. Sanfilippo v. County of Santa Cruz, 415 F.Supp. 1340, 1343 (N.D.Cal.1976). Similar reasoning suggests the California legislature lacks the power to withdraw the substantive protections extended to landholders by the taking language of the California Constitution, Article I § 19.
Alternatively, defendants assert immunity from suit under 42 U.S.C. § 1983. Their assertion is correct with regard to the city because it is not a person within the meaning of the statute. Monroe v. Pape, 365 U.S. 167, 187-98, 81 S.Ct. 473, 5 L.Ed.2d 492 (1960). The individual members of the city council, however, are sued both in their official and individual capacities. In M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354, 360 (N.D.Cal.1975), this court noted a split of authority on whether public officials could be held liable for monetary damages when sued in their official capacity. The Ninth Circuit has since held respondeat superior liability will not lie under the Civil Rights Act. Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976). Additionally, it would be anomalous to find the city immune from money damages under § 1983 and then circumvent that holding by allowing damages against city officials sued in their representative capacities. See Monell v. Dept. of Social Services, 532 F.2d 259 (2d Cir. 1976), cert. granted 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). For these reasons the court concludes the § 1983 action against the city and against the city council members in their official capacities must be dismissed.
The remaining question then is whether the city council members are also immune from individual liability under § 1983 due to some absolute or qualified common law privilege. Defendants insist they are protected by an absolute legislative privilege. However, the actions set forth in the complaint do not involve the promulgation of legislation of a general or prospective nature, rather, they depict discretionary determinations with respect to a single parcel of land. This court has previously found the appropriate scope of protection for public officials making discretionary zoning decisions in the qualified immunity of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354, 360 (N.D.Cal.1975). Qualified immunity exonerates actions taken in good faith and upon a reasonable belief, questions of fact which preclude a 12(b)(6) dismissal.
Although the plaintiffs retain viable monetary claims against the city and city council members the court is moved to repeat the admonition given in Sanfilippo v. County of Santa Cruz, 415 F.Supp. 1340, 1343 n.1 (N.D.Cal.1976):
*268 [M]onetary damages are not judicially favored in land regulation cases absent actual physical damage or invasion, regulations which allow no reasonable use of the complainant's property or are exceptionally restrictive, or confiscatory intent or bad faith on the part of the government. Because court-ordered acquisition is likely to be extremely burdensome for the community, and because the burden on the plaintiff can be remedied by removal of the offending land-use restriction, courts have found it appropriate to limit relief in inverse condemnation cases to a declaration that the regulation in question is invalid.
CONCLUSION
In their moving papers the defendants have raised certain arguments not directly addressed in this memorandum. It is the court's view that these arguments are better addressed in a motion for summary judgment or a trial on the merits. By way of summation, defendants' motion to dismiss or abstain is denied with one exception. The claim for relief pursuant to 42 U.S.C. § 1983 against the city and against the individuals sued in their official capacities is dismissed.
IT IS SO ORDERED.
NOTES
[1] Whether the city might be subject to a federal antitrust cause of action is a question not discussed by the parties. See City of Lafayette v. Louisiana Power & Light Co., ___ U.S. ___, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978).
[2] An issue which neither side has addressed directly in its pleadings involves plaintiffs' right to compel the city of San Jose to provide access to its sewers. If the city were so compelled, plaintiffs could presumably begin more profitable development of their property immediately.
The traditional rule is that a municipality may not be forced to extend its sewer lines to property lying outside its boundaries. However, several state courts have recently held that a city holding itself out as the sole provider of sewer services in a given locale will be considered a public utility and allowed to deny sewer hook-ups to property within its "service area" only for such utility-related reasons as lack of capacity. See, e. g., Robinson v. City of Boulder, 547 P.2d 228 (Colo.Sup.Ct.1976); Mayor and Council of City of Dover v. Delmarva Enterprises, Inc., 301 A.2d 276 (Del.Sup.Ct. 1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2871803/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00473-CR
Travis Lavel Ghant, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 53391, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Travis Lavel Ghant guilty of sexual assault of a child. See
Tex. Pen. Code Ann. § 22.011 (West Supp. 2005). The court assessed punishment, enhanced by
previous felony convictions, at imprisonment for life. Appellant contends that the court erred by
overruling two of his jury challenges and by permitting the State to offer evidence of the
complainant’s prior sexual conduct. We find no reversible error and affirm the conviction.
The complainant testified that appellant forced her to have sexual intercourse with
him on numerous occasions between September 1999 and July 2000. She made her first outcry in
early 2002, when she was told that appellant was planning to return to the Killeen area.
In his first point of error, appellant contends that the trial court erred during jury
selection by refusing his request for two additional peremptory strikes. Whether appellant was
entitled to the additional strikes depends on whether the trial court should have granted appellant’s
challenges for cause to two venire members. See Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim.
App. 1992). We review a ruling on a challenge for cause with considerable deference and will
reverse only if a clear abuse of discretion is shown. Newbury v. State, 135 S.W.3d 22, 32 (Tex.
Crim. App. 2004).
The first of the two challenged venire members said during individual questioning
that he had two daughters aged eleven and eighteen. The older daughter was sexually abused when
she was fifteen, and the venire member had “mixed feeling about . . . whether I can be fair to the
accused.” When asked if he would favor the State, he answered, “I can’t answer that, sir.” Asked
if he would require the defense to present evidence, he replied, “I can’t really answer that. I got to
hear the case.” He indicated that he would “probably” like to hear the defendant testify, but he
understood the right to remain silent and would follow the law. He added, “I will follow the law.
I will try to be fair on my decision but it will be real difficult for me to hear the case.”
The second challenged venire member had been sexually assaulted when she was five.
When asked if it would be difficult for her to put aside her personal experience and decide this case
on the evidence, she first said that it would but then said that it would not. In response to questions
by defense counsel, she said that she would want to hear the defendant testify before deciding the
case. But when questioned by the prosecutor, she stated that she would follow the law and not take
the defendant’s silence as evidence of guilt. She agreed that she “would have to look at all the
evidence and the facts” before deciding whether appellant was guilty.
2
Appellant did not specify the grounds for his challenges at trial, and he does not do
so on appeal. We infer that appellant contends that the venire members in question were biased
against him or the law on which he was entitled to rely, specifically the right to remain silent. See
Tex. Code Crim. Proc. Ann. art. 35.16(a)(9), (c)(2) (West Supp. 2005). Although both venire
members indicated that their personal experiences would make it difficult for them to serve, neither
expressed a bias against appellant or in favor of the State. The two venire members expressed a
preference for hearing the defendant testify, but were willing to follow the law and base their verdicts
on the evidence. We find no clear abuse of discretion in the trial court’s denial of the challenges for
cause. It follows that appellant was not entitled to additional peremptory strikes. Point of error one
is overruled.
In his second point of error, appellant complains that the trial court erred by
permitting the State to offer evidence of the complainant’s prior sexual conduct in violation of rule
412. See Tex. R. Evid. 412. Outside the jury’s presence, the complainant testified that she had been
sexually abused by an uncle several years before the assault for which appellant was on trial, and that
this earlier abuse did not involve the penetration of her sexual organ. Appellant asked the court for
permission to question the complainant about this earlier abuse in order to rebut or explain the
anticipated medical testimony. See id. rule 412(b)(2)(A). The request was denied. In separate
rulings, the court also denied appellant permission to question the outcry witness and the
complainant’s counselor about this earlier abuse. Appellant does not challenge these rulings on
appeal.
3
After these rulings were made, the State called the sexual assault nurse examiner who
examined the complainant in April 2002 following the outcry against appellant. The nurse testified
that the complainant’s hymen had been torn, apparently by blunt force trauma. The laceration was
well-healed. The witness could not date the laceration or state that it was the result of a sexual
assault.
The State then recalled the complainant. Over appellant’s objection, she was
permitted to testify that appellant was the only person with whom she had sexual intercourse prior
to the date of the nurse’s examination. She also testified that no object had ever been forced into her
vaginal opening. It is the admission of this testimony that appellant contends was error.
No violation of rule 412(b) is shown. The rule generally prohibits the admission of
evidence of specific instances of an alleged sexual assault victim’s past sexual behavior. Tex. R.
Evid. 412(b). The complainant’s testimony did not violate this rule because it concerned the absence
of past sexual behavior.1 Point of error two is overruled.
We received a pro se brief from appellant. Although hybrid representation is not
allowed, we have reviewed the pro se brief in the interest of justice. See Patrick v. State, 906 S.W.2d
481, 498 (Tex. Crim. App. 1995). The pro se brief relies on asserted facts not contained in the
record and adds nothing to the brief filed by counsel.
1
This distinguishes the evidence adduced by the State from the evidence appellant was not
permitted to offer. We also note that the uncle’s prior abuse would not have rebutted or explained
the State’s medical evidence because the complainant said that her uncle did not penetrate her
vagina.
4
The judgment of conviction is affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: April 13, 2006
Do Not Publish
5 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/127494/ | 537 U.S. 1216
CASTELLANOS-LOZA, AKA LOZA-CASTELLANOSv.UNITED STATES.
No. 02-8330.
Supreme Court of United States.
February 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 263. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3007261/ | Court of Appeals
of the State of Georgia
ATLANTA, September 24, 2015
The Court of Appeals hereby passes the following order
A16D0033. ANTHONY OGUFERE v. NORTH FORSYTH EQUITY, LLC.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
15A56338
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, September 24, 2015.
I certify that the above is a true extract from the minutes of
the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk. | 01-03-2023 | 10-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062384/ | IN THE COURT OF APPEALS OF IOWA
No. 15-1103
Filed October 14, 2015
IN THE INTEREST OF P.F. and A.F.,
Minor Children,
H.F., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David Staudt,
Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant
mother.
Kelly Smith of Kelly J. Smith, P.C., Waterloo, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd and Kathryn K.
Lang, Assistant Attorneys General, Linda Fangman, County Attorney, and
Steven Halbach and Kathleen Hahn, Assistant County Attorneys, for appellee
State.
Melissa Anderson Seeber of Juvenile Public Defender’s Office, Waterloo,
for minor children.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
DANILSON, Chief Judge.
A mother appeals from the juvenile court order terminating her parental
rights to her children P.F. and A.F.1 The mother maintains she should have been
given an additional six months to work towards reunification rather than have her
parental rights terminated. She also maintains termination is not in the best
interests of the children and termination is detrimental to the children because of
the closeness of the parent-child bond. Because we cannot say the conditions
that led to removal would no longer exist if the mother was granted a six-month
extension, termination is in the best interests of the children, and the parent-child
bond does not weigh against termination, we affirm the juvenile court’s order
terminating the mother’s parental rights.
I. Background Facts and Proceedings.
A.F. was born in August 2005, and P.F. was born in in October 2006. The
family’s involvement with the Iowa Department of Human Services (DHS) began
in late 2005, when A.F. was four months old. The family’s current involvement
with DHS—the sixth time a protective assessment has been completed—began
in January 2014. The children were removed on January 6, 2014, due to claims
both children were in the home and present during an incident of domestic
violence between the mother and father. There were also allegations that both
parents were using methamphetamine while supervising the children. The
parents stipulated to the removal of the children.
On January 30, 2014, A.F. and P.F. were each adjudicated as a child in
need of assistance. The juvenile court considered the five previous child
1
The father’s parental rights were also terminated. He does not appeal.
3
protective assessments, noting a pattern of exposure to drugs and domestic
violence.
The mother was incarcerated at the Iowa Correctional Institution for
Women from January 25, 2014, until February 20, 2014, when she was released
to the Women’s Center for Change. She was then discharged from the Women’s
Center for Change on July 17, 2014, so she could have surgery. The mother
enrolled herself in a drug rehabilitation program in March 2014 and successfully
completed the program in June 2014. She provided approximately twenty clean
drug tests during this period of time and attended visits consistently. As a result,
visitation was scheduled to move to semi-supervised.
On September 24, 2014, before the semi-supervised visits began, the
mother tested positive for marijuana and methamphetamine. When confronted
with the results, the mother self-reported that she had also relapsed and abused
alcohol. The mother tested positive for the use of marijuana again on
October 21. As a result, her probation was revoked, and she was incarcerated
on October 28, 2014. The mother remained incarcerated until February 14,
2015.
The termination hearing was held on February 26, 2015. The mother
testified she was committed to her sobriety and believed she had a positive
support system in place. The mother had been diagnosed with manic
depression, bipolar disorder, and issues with anger management. In the
approximately two weeks after her release before the hearing, she had missed a
drug test and a scheduled visit with the children. She had also cancelled and
“no-showed” appointments at the mental health center. She did set up and
4
attend a meeting to initiate an anger management course. The mother testified
that she believed A.F. and P.F. could be returned to her care if she was given an
additional six months to work towards reunification.
Following the hearing, the juvenile court entered an order terminating the
mother’s parental rights to A.F. and P.F. pursuant to Iowa Code sections
232.116(1)(e), (f), and (l) (2015). The mother appeals.
II. Standard of Review.
Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,
40 (Iowa 2010). We give weight to the juvenile court’s findings, especially
assessing witness credibility, although we are not bound by them. In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be
upheld if there is clear and convincing evidence of grounds for termination under
section 232.116. Id. Evidence is “clear and convincing” when there are no
serious or substantial doubts as to the correctness of the conclusions of law
drawn from the evidence. Id.
III. Discussion.
A. Statutory Grounds.
Iowa Code chapter 232 termination of parental rights follows a three-step
analysis. P.L., 778 N.W.2d at 39. The court must first determine whether a
ground for termination under section 232.116(1) has been established. Id. If a
ground for termination has been established, the court must apply the best-
interest framework set out in section 232.116(2) to decide if the grounds for
termination should result in termination of parental rights. Id. Finally, if the
statutory best-interest framework supports termination of parental rights, the
5
court must consider if any of the statutory exceptions set out in
section 232.116(3) weigh against the termination of parental rights. Id.
The mother maintains the State has not proven the statutory grounds for
termination by clear and convincing evidence. On appeal, we may affirm the
juvenile court’s termination order on any ground we find supported by clear and
convincing evidence. D.W., 791 N.W.2d at 707. One of the grounds upon which
the juvenile court terminated the mother’s parental rights to A.F. and P.F. was
Iowa Code section 232.116(1)(f). The juvenile court may terminate a parent’s
parental rights pursuant to section 232.116(1)(f) when, at the time of the
termination hearing, the child was four years of age or older, had been
adjudicated a child in need of assistance, had been removed from the parent’s
care for at least twelve of the last eighteen months, and could not be returned to
the parent’s care.
At the time of the termination hearing, on February 26, 2015, A.F. was
nine years old and P.F. was eight years old. They were each adjudicated as a
child in need of assistance on January 30, 2014. They had been removed from
the mother’s care since the initial removal on January 6, 2014. The only disputed
element was whether the children could be returned to the mother’s care at the
time of the hearing. There is clear and convincing evidence that they could not.
The mother had had two periods of incarceration since the children’s removal,
and she had only recently been discharged from jail. She had yet to submit to
drug testing and had not met with her mental health counselor. The mother was
purportedly living at her sister’s home, but she had stayed at three different
places in the two weeks since her release from jail. She was unemployed and
6
could not support the children. Moreover, even before she went back to jail in
October, the mother was having only supervised visits with the children.
There is clear and convincing evidence the children could not be returned
to her care at the time of the termination hearing, and the grounds for termination
of the mother’s parental rights to A.F. and P.F. were met pursuant to
section 232.116(1)(f).
B. Best Interests.
The mother maintains termination of her parental rights is not in the best
interests of the children. We believe the record shows otherwise. Alyssa
Rasmussen, the DHS caseworker assigned to the family, testified that A.F. has
expressed she would like to be adopted because she no longer trusts her
parents. Although the visits between the mother and children go well, the
children tend to act out more both in school and their foster home after seeing
their mother. The children have been exposed to a pattern of domestic violence
and drugs throughout their lives; they need stability. Termination will enable A.F.
and P.F. to achieve permanency. See In re A.M., 843 N.W.2d 100, 113 (Iowa
2014) (citing In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring
specially) (noting the “defining elements in a child’s best interest” are the child’s
safety and her “need for a permanent home”)).
There is clear and convincing evidence termination of the mother’s
parental rights is in A.F.’s and P.F.’s best interests.
C. Permissive Factors.
The mother maintains the closeness of the parent-child bond weighs
against the termination of her parental rights. See Iowa Code § 232.116(3)(c).
7
The caseworker testified that the children share a bond with their mother, but she
also questioned whether the bond was healthy. As noted above, the children
tend to act more aggressively and ignore rules after a visit with their mother.
They have been out of her care for more than a year. At times during that year,
they were unable to have visits with her due to her incarceration. Moreover, the
children have thrived in the stable environment of the foster home. We do not
believe the bond between the mother and the children makes termination
unnecessary in light of the children’s need for permanency.
D. Six-Month Extension.
The mother contends she should be given a six-month extension to work
towards reunification with A.F. and P.F. We acknowledge the mother made
positive strides between the time the children were removed in January 2014 and
the termination hearing in February 2015. She recognized her relationship with
the father was toxic and initiated divorce proceedings. She also successfully
completed a drug rehabilitation program and was able to maintain her sobriety for
approximately nine months. However, the mother relapsed on alcohol,
marijuana, and methamphetamine. Additionally, much of the time she was sober
was while she was incarcerated or in a residential facility. The mother admits
she has been using illegal substances and battling addiction for approximately
twenty years. Her nine months of sobriety during the pendency of the case is
one of the longest periods she was able to maintain it. We are encouraged by
the mother’s desire to maintain her sobriety in the future, and we hope she is
able to do so. However, at the time of the termination hearing, the mother had
only been out of jail for approximately two weeks and had not been able to prove
8
she could maintain her sobriety outside of a structured environment. We do not
believe an additional six months would allow her to establish she can remain
sober in the long term. Children should not be forced to wait for their parent to
be able to care for them, particularly when we have so little evidence to rely upon
to believe the circumstances will be different in six months. See In re N.F., 579
N.W.2d 338, 341 (Iowa Ct. App.1998).
Although the mother has made progress during the pendency of the case,
we cannot say the issues that led to removal would no longer exist at the end of
a six-month extension.
IV. Conclusion.
Because we cannot say the conditions that led to removal would no longer
exist if the mother was granted a six-month extension, termination is in the best
interests of the children, and the parent-child bond does not weigh against
termination, we affirm the juvenile court’s order terminating the mother’s parental
rights.
AFFIRMED. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062387/ | IN THE COURT OF APPEALS OF IOWA
No. 15-1297
Filed October 14, 2015
IN THE INTEREST OF M.H.,
Minor Child,
J.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
A mother appeals the termination of her parental rights to her child, born in
2012. AFFIRMED.
Nancy L. Pietz, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John Sarcone, County Attorney, and Kevin Patrick, Assistant
County Attorney, for appellee State.
Michael R. Sorci of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2
VAITHESWARAN, Presiding Judge.
A mother appeals the termination of her parental rights to her child, born in
2012. She (1) challenges the grounds for termination cited by the juvenile court
and (2) contends termination was not in the child’s best interests.
I. The juvenile court cited several statutory grounds for termination. We
may affirm if we find clear and convincing evidence to support any of the
grounds. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
The mother has a twenty-year substance abuse history, with her drugs of
choice being crack cocaine and marijuana. The child was adjudicated in need of
assistance based on the mother’s use of drugs while the child was in her care.
The mother entered a residential recovery center, but five months before
the termination hearing, left the program and provided no forwarding contact
information. At the termination hearing, she admitted using marijuana less than a
month earlier. She also admitted her last drug test was probably seven months
before the termination hearing. Finally, the mother was not slated to begin
outpatient drug treatment services until the evening of the termination hearing.
In sum, the mother had yet to take significant steps to address her long-
standing addictions. On our de novo review, we conclude the juvenile court
appropriately terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(h) (2015), which requires proof of several elements including
proof the child could not be returned to the parent’s custody.
II. The mother argues termination was not in the child’s best interests. In
re P.L., 778 N.W.2d 33, 37-38 (Iowa 2010). We disagree. Although the mother
regularly attended supervised visits with the child and interacted appropriately
3
with him, there was no indication she could safely care for him on an
independent basis. Had she remained at the residential recovery center, her
unsupervised parenting skills would have been reviewed and tested. Her
decision to leave and resume her illegal drug use compromised the safety of the
child and the prospects for reunification. We conclude termination was in the
child’s best interests.
AFFIRMED. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2311047/ | 962 F. Supp. 93 (1996)
Francisco ASTORGA, et al., Plaintiffs,
v.
CONNLEAF, INC., Defendant.
No. EP-96-CA-366-H.
United States District Court, W.D. Texas.
September 11, 1996.
*94 Francisco X. Dominguez, Texas Rural Legal Aid, Inc., El Paso, TX, for Plaintiffs.
Clara B. Burns, Kemp, Smith, Duncan & Hammond, P.C., El Paso, TX, Ken Coffman, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, TX, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
HUDSPETH, Chief Judge.
This is a case involving the alleged exploitation of migrant workers. Defendant, through Carlos Moran, an El Paso-based labor contractor, recruited and hired Plaintiffs to harvest tobacco in Massachusetts. Defendant corporation worked closely with Moran by providing him with literature that enabled him to recruit employees. Among the materials that were sent by Defendant to Moran were the "Migrant Labor Contracts" that were ultimately signed by Plaintiffs. The employment contracts contained a number of promises that were allegedly breached when Plaintiffs reached Massachusetts. Accordingly, Plaintiffs filed the present lawsuit in the 327th Judicial District Court, El Paso County, Texas alleging that Defendant violated the Migrant and Seasonal Agricultural Worker Protection Act (AWPA) and the Fair Labor Standards Act (FLSA) by: paying Plaintiffs less than the minimum wage, wrongfully deducting money from Plaintiffs' *95 paychecks, failing to post housing conditions, failing to provide housing that meets federal and state safety and health requirements, causing Plaintiffs to suffer personal injuries, and endangering the life and safety of Plaintiffs. The case was subsequently removed to this Court pursuant to 29 U.S.C. § 1854(a).
Defendant moves the Court to dismiss Plaintiffs' complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2), Federal Rules of Civil Procedure. Plaintiffs bear the burden of establishing this Court's personal jurisdiction over Defendant. Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1067 (5th Cir.1992), cert denied, 506 U.S. 867, 113 S. Ct. 193, 121 L. Ed. 2d 136. When the district court decides the defendant's motion to dismiss for want of personal jurisdiction without an evidentiary hearing, the plaintiff's burden is met by presenting a prima facie case for personal jurisdiction. The allegations of the complaint, except as controverted by opposing affidavits, must be taken as true, and all conflicts in the facts must be resolved in favor of the plaintiff for the purposes of determining whether a prima facie case for personal jurisdiction has been established. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985).
Since the AWPA and FLSA are silent with regard to service of process, this Court may exercise personal jurisdiction over only those defendants who are subject to the jurisdiction of Texas courts. Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir.1992). Accordingly, Defendant's amenability to personal jurisdiction in this Court is governed by Texas' long-arm statute. Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 106, 108 S. Ct. 404, 411, 98 L. Ed. 2d 415 (1987). Texas' long-arm statute extends personal jurisdiction to the constitutionally permissible limits of due process. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Therefore, the determination of personal jurisdiction in the present case compresses into a due process assessment. Aviles, 978 F.2d at 204.
The Due Process Clause requires that an individual be given "fair warning" that a particular type of activity might subject him to the jurisdiction of a foreign forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S. Ct. 2174, 2183, 85 L. Ed. 2d 528 (1984). This requirement is satisfied if a defendant has purposefully directed his activities at residents of the forum state and the litigation results from harm arising out of or relating to those specific activities. Id.; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 772, 104 S. Ct. 1473, 1478, 79 L. Ed. 2d 790 (1984). It is not always necessary that the defendant come to the forum state in person; mail and wire communications across state lines, if they are purposefully directed toward a resident of the forum state, may suffice to establish minimum contacts. Burger King, 471 U.S. at 474, 105 S. Ct. at 2184.
The record before the Court provides ample support for Plaintiffs' contention that Defendant had minimum contacts with Texas. The uncontroverted affidavit of Carlos Moran shows that he worked closely with Defendant to recruit agricultural workers for the 1994 tobacco harvest. In particular, Defendant sent Moran a package of contracts and company regulations that were used to recruit workers in Texas. During the process of recruiting the Plaintiffs, Moran had several telephone conversations with Defendant's home office, some of which were initiated by Defendant. After Moran recruited the Plaintiffs, Defendant sent him a contracting fee as well as enough money to pay each of the Plaintiffs' travel expenses. The sworn statements of several of the Plaintiffs also confirm that they were recruited in Texas. These contacts are sufficient to satisfy the "minimum contacts" requirement of the due process test.
Defendant's assertion that Aviles v. Kunkle is dispositive of the present case is incorrect. In Aviles, the Fifth Circuit ordered the district court to dismiss a complaint where "[d]efendants' only contact with Texas was one telephone call and one letter which merely advised plaintiffs of the start date of the employment they had already accepted the previous summer in Ohio." Aviles, 978 F.2d at 205. The facts of the case presently before the Court require a different result than that in Aviles. The contacts between Defendant and Texas greatly exceeded one telephone *96 call and one letter. In Aviles, the Fifth Circuit expressly stated that the plaintiffs' cases were not based upon any contract or recruitment in Texas. Id. In the present case, Plaintiffs were recruited in Texas and their employment contracts were signed in Texas.
Even though Plaintiffs' have shown "minimum contacts" in the present case, the Court is obligated to consider the contacts in light of other factors to determine whether the assertion of personal jurisdiction over Defendant would comport with "fair play and substantial justice." Burger King, 469 U.S. at 64, 105 S. Ct. at 477; International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95 (1945). In reviewing the fairness of requiring Defendant to litigate this case in Texas, the Court may consider such factors as the burden on Defendant, Texas' interest in adjudicating the dispute, the Plaintiffs' interest in obtaining convenient and effective relief, and the interests of the several states. Asahi Metal Ind. Co., Ltd. v. Superior Court of California, 480 U.S. 102, 113, 107 S. Ct. 1026, 1033, 94 L. Ed. 2d 92 (1987). Defendant's statement that "Texas has no interest in asserting jurisdiction over Connleaf" is entirely misplaced. Texas has a significant interest in preventing its citizens from being exploited by out-of-state employers. Texas' interest is reflected in the specific provision of its long-arm statute that a nonresident who recruits Texas residents for employment outside the state is subject to service of process. TEX. CIV. PRAC. & REM. CODE § 17.042(3). Furthermore, Defendant is a sophisticated corporation that has already retained local counsel to defend the present lawsuit. Plaintiffs, on the other hand, will be unable to pursue their claims unless the case remains in Texas. The assertion of personal jurisdiction by this Court is fair and safely within the limits imposed by due process. In light of the factors articulated by the United States Supreme Court in Asahi, this Court's exercise of personal jurisdiction over Defendant does not offend traditional notions of fair play and substantial justice.
Finally, Defendants challenge venue pursuant to Federal Rule of Civil Procedure 12(b)(3). This argument fails because the AWPA provides that "any person aggrieved by a violation of this chapter ... may file suit in any district court of the United States having jurisdiction over the parties, ... without regard to citizenship of the parties." 29 U.S.C. § 1854(a). Since this Court has jurisdiction over the parties, the case is properly venued in this Court. Stewart v. Woods, 730 F. Supp. 1096, 1097 (M.D.Fla.1990). Additionally, venue is proper in the Western District of Texas pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to Plaintiffs' claims occurred in this District.
It is therefore ORDERED that Defendant's 12(b)(2) motion to dismiss for lack of personal jurisdiction be, and it is hereby, DENIED.
It is further ORDERED that Defendant's 12(b)(3) motion to challenge venue be, and it is hereby, DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996962/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6694
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLAYTON DOUGLAS DANGERFIELD, a/k/a Robert
Douglas Dangerfield,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-94-301, CA-97-1127-18-2)
Submitted: October 8, 1998 Decided: November 16, 1998
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clayton Douglas Dangerfield, Appellant Pro Se. Matthew R. Hubbell,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Clayton Douglas Dangerfield seeks to appeal the district
court’s order denying his motion filed under 28 U.S.C.A. § 2255
(West 1994 & Supp. 1998). We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. Accordingly, we
deny a certificate of appealability and dismiss the appeal on the
reasoning of the district court. United States v. Dangerfield, No.
98-6694 (D.S.C. March 19, 1998). 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 deci-
sional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029581/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6291
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID WILLIAM LINDER, a/k/a Dr. Benway,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:04-cr-00191-JBF-TEM-1; 2:07-cv-00581-JBF)
Submitted: July 23, 2009 Decided: July 29, 2009
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
David William Linder, Appellant Pro Se. Laura Pellatiro Tayman,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David William Linder seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2009) motion. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability
will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Linder has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3224231/ | I understand the rule to be in this state, where the scintilla doctrine prevails, that, if there is any evidence tending to show that the plaintiff has made out a case, it should be submitted to the jury. Or if the evidence creates a reasonable inference, as distinguished from a mere speculation or conjecture, that the plaintiff has made out his case, it should be submitted to the jury. On the other hand, if the evidence as to the material facts is only conjectural and speculative, the defendant would be entitled to the general charge.
The foregoing opinion of Justice BOULDIN holds that the evidence was sufficient to create a reasonable inference of subsequent negligence on the part of the defendant's servant and the defendant was not due the general charge. As to this, we are in agreement.
I also understand that, while the plaintiff made out a case sufficient to get to the jury, the verdict was so contrary to the great weight of the evidence as to put the trial court in error for refusing the defendant's motion for a new trial. I think the expression of Justice BOULDIN, in discussing the motion for a new trial, to the effect that any inference of negligence after discovery of peril would be a matter of "pure conjecture, such as should never be the basis of a verdict and judgment," is inaccurate and misleading. If the evidence creates a mere conjecture, the defendant was entitled to the general charge, but, if it created a reasonable inference, the case should have been submitted to the jury, but the verdict, being contrary to the great weight of the evidence, should be set aside. *Page 285 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2311229/ | 38 F. Supp. 2d 1120 (1998)
Carl MORSE, Plaintiff,
v.
SOUTHERN UNION COMPANY, Defendant.
No. 96-0719-CV-W-6.
United States District Court, W.D. Missouri, Western Division.
March 3, 1998.
*1121 Michael S. Ketchmark, Brett A. Davis, Ketchmark & Eischens, Kansas City, MO, for plaintiff.
John R. Phillips, Toni Hays Blackwood, Brian J. McGrath, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, Curtis E. Woods, Tamara Seyler-James, Sonnenschein Nath & Rosenthel, Kansas City, MO, for defendant.
*1122 MEMORANDUM AND ORDER
SACHS, District Judge.
Pending before the court are motions for judgment as a matter of law, new trial, or remittitur.[1]
Carl Morse has enjoyed extraordinary success in his age discrimination suit against his former employer, Missouri Gas Energy or MGE, a division of Southern Union Company. After an unblemished thirty-year career with MGE and its gas company predecessors, he was summarily removed as Supervisor of the Plant Accounting Department and simultaneously discharged from the company in January 1996. The meeting where he was informed of his termination consisted of a brief discussion of paperwork which left him in a state of shock. There was no meaningful explanation of his removal from his job assignment, and no reason was given for the firing.
Displacement from the plant accounting unit has been explained at trial as the result of computer-assisted efficiencies. That ultimately allowed one accountant and a Southern Union supervisor, giving limited time to the work, to accomplish the tasks previously performed by three or four persons. Plaintiff, the eldest, in his early fifties, was the first to be let go.[2] The remaining part-time supervisor and the accountant who absorbed his duties are somewhat younger than he probably enough younger, and with a younger appearance, to be considered materially younger for discrimination analysis.
Morse had a varied career with the gas company, including service in the engineering department at Lee's Summit, Missouri, before he was recruited in early 1994 to return to plant accounting (dealing with records of company properties) at divisional headquarters on Broadway in Kansas City. After a commendable record noted by his supervisor, Stuart Harbour, Controller for MGE, in November of that year, his performance during the second year was less admirable, according to Harbour's ratings made in November 1995. Harbour's stated reservations about Morse's work related to-alleged deficiencies in adjusting to a new computer system installed in July 1995. Harbour now disclaims any disciplinary intent, however, and contends simply that Morse's work was taken over by a computer. Moreover, even after the hostilities engendered by litigation, Harbour generalizes that Morse was nearly an average quality employee, perhaps "slightly" below average.[3]
The termination aspect of the decision lacks a reasonable, legitimate explanation.[4] At trial there was some suggestion by Harbour and Ms. McDonald, the former head of the Human Resources Department, that the thought of transferring Morse within the company flickered through their minds, and allegedly was halfheartedly pursued by Harbour before the date of termination. I assume this evidence was rejected by the jury, except as confirmation that it would be ordinary business practice to review alternatives for retaining a long-term employee with an adequate record, rather than discarding him like an obsolete computer system. The Harbour testimony about a job search was disputed by Jerry Fast, then a supervisor at Lee's Summit. There were also serious inconsistencies between the Harbour *1123 testimony and that of Ms. McDonald. In any event, nothing was said to Morse about exploring the possibility of retaining him in the company, such as asserting that there was unfortunately no place for him to go. He has no memory that he was told that job performance was not an issue, and he reacted accordingly as though he had been fired for some undisclosed deficiency. There is no claim that the termination was announced in a sympathetic manner. There was no hand shake or back-patting. Some fifteen months earlier Morse had been partied and feted by Harbour, in honor of his three decades with the company. Something must have changed.
Apart from some recorded reservations about Morse's abilities to master the new computer work and another supervisor's undisclosed impatience about his failure to prepare the manual, the major event that would most likely explain the termination was an occasion in April 1995, where old-timers and other managerial employees at MGE were introduced to the thinking of Southern Union's top management, including the Chief Operating Officer, Peter Kelley. According to plaintiff's middle-aged and aging witnesses, who were probably believed by the jury, it was a traumatic event for them. Dramatic changes were said to be on the way. "Young blood" was needed. MGE would have a "fresh new look." Employees should expect to work for a number of companies during a career. MGE was not a place were people should expect to retire. Discipline should be tightened. Managers were asked to recall when they had last fired someone. Even defendant's reply brief, at page 19, concedes the jury could conclude that the defendant's top management "expressed a preference for a younger work force."
The older managerial employees in particular felt threatened as to their job security. Nine months later Morse was gone.[5]
There is no proof that Kelley or other top managers at Southern Union were directly involved in the Morse termination (although Kelley claimed it was his practice to review all performance reviews of managerial employees, including Morse). Harbour was present at the meeting, and the jury was entitled to conclude, as I noted before trial, that it could reasonably be inferred that he took his "marching orders" from the discussion at the round table session, if such a message was verified at trial. Harbour's superior at Southern Union, Donald Kvapil, was also present, which may have been significant, although he has not been proved to have been a motivator of the termination.[6]
The jury was entitled to conclude that a harshly handled termination of a longtime management employee, without making a good faith effort to relocate a person whose general ability is unquestioned and who apparently had transferable skills, is so remarkable that, with other evidence of age consciousness and desire for a "new look," it probably was because of his age.[7] agree with the jury in its finding for Morse on the termination.
*1124 Without belaboring the evidence, I am more skeptical of that part of the special verdict that finds age discrimination in the shrinking of the plant accounting unit, and choosing Morse as the one to leave. It is, however, in my evaluation, a jury question, particularly when supported by plaintiff's version of the roundtable discussions.[8]
I.
Defendant contends that plaintiff failed to make a submissible case. On the contrary, I believe this was an exceptionally strong case, although packaging and boxing it in legal terms may be more difficult. As suggested in my pretrial orders, I have engaged in some semantic waffling. It may not be a "smoking gun" direct evidence case, but it is a good deal stronger than a purely circumstantial case, where there is no direct evidence of corporate intent to rejuvenate the workplace. Such evidence is rarely available.
On balance I suppose it qualifies as a direct evidence case.
The most vulnerable aspect may be whether an available job at Lee's Summit could be found, but this was not necessary to establish liability in light of the verdict as to the accounting unit itself. If the jury did not have enough evidence to support that part of the verdict, however, the Fast testimony was alone probably sufficient. An opening was testified to, based on the resignation of a particular supervisor. The "maybe" qualifier now cited by defendant (Tr. 471) could mean various things, including whether plaintiff wanted that particular job. In context the jury could conclude that a job was probably available for an employee as versatile as plaintiff. Defendant did not cross-examine on the point and did not bring in its own contrary evidence, as it seems to do in a post-trial affidavit which limits itself to supervisory positions.[9]
Defendant asks the court to "confine" Throgmorton, supra, "to its facts." This is more properly addressed to the Court of Appeals. Giving the message from Southern Union managers its full flavor, I doubt that the "pervasive" hostility in Throgmorton makes that case exceptional. When the boss tells lesser executives that he wants a "younger work force" it may be assumed they will listen.[10] I am also satisfied that an employee who has been harshly terminated has no legal duty to "apply" *1125 for a transfer. In any event, the jury rejected the failure to mitigate hypothesis presented in Instruction No. L.
II.
Defendant contends that the jury was misdirected in the special verdict form, in the definition of determining cause. Defendant contends that I should have used an edited version of Eighth Circuit model instruction 5.92, as submitted by it and refused.
There are several responses. The unedited version of instruction 5.92 has the very language that defendant objects to, as an alternative that judges may use in their discretion, noting that the language to which defendant objects may be rejected as a "comment on the evidence." Note on Use, number 5. It is not substantively questioned by the committee, even in the 1998 version.
The problem referred to was not raised on the record at the instruction conference, and is thus not a sound basis for appeal. Dupre v. Fru-Con Engineering, Inc., 112 F.3d 329 (8th Cir.1997). Although portions of the applicable part of the instruction conference (Doc.127) were off the record, I am satisfied the point was not made at that time. Off the record portions of the discussion are generally used by me for paper-shuffling and judicial brain-storming, not to suppress argument. The point now made may well have been in counsel's head, but I am satisfied it was not expressed.
In any event the ultimate question directed to the jury was clear, as was the underlying instruction. If the language used by the committee in the discretionary part of the definition may have been inept or contrary to other parts of the submission I am satisfied there was no harmful misunderstanding and, of course, there were no questions from the jury about claimed inconsistency.
III.
There is little doubt that plaintiff proved a willful violation of the ADEA. Defendant's argument that Chief Judge Arnold's opinion in Maschka v. Genuine Parts Co., 122 F.3d 566 (8th Cir.1997), applies "an erroneous standard" is best addressed to the Court en Banc.
IV.
The punitive damage award was appropriately imposed under Missouri law, but I agree it was quite excessive and is subject to remittitur (unless plaintiff elects to retry the case).
It is hard to imagine a much more flagrant violation of age protection laws than for the highest executives of the company, in a get-acquainted session with local management, to express "a preference for a younger work force" particularly in a conference challenging managers to exercise their firing powers, and declaring that modern company practices will result in multiple employments before retirement. The jury was entitled to conclude that Messrs Harbour and (likely) Kvapil hardened their hearts, forgot about commonly-accepted personnel practices in their company and elsewhere, and took an early opportunity to discharge plaintiff, despite his proven ability to perform adequate service. Harbour's apparent discomfort with the procedure seems obvious from his termination session with Morse, worthy of a session with an embezzler.[11]
Under the evidence, as found by the jury, I do not see how the jury could fail to be outraged and to find that defendant was at least recklessly indifferent to the rights of its employee. That is what is required under Missouri law. Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 803 (8th Cir.1994).
*1126 Defendant argues that the court failed to use the "clear and convincing" standard of proof for punitive damages, as required by a Missouri Supreme Court decision handed down some months before trial. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996) The parties did not object to that aspect of the submission, however, and waived the issue. Letz v. Turbomeca Engine Corp., 1997 WL 727544, (Mo.App. W.D., Nov.25, 1997), n. 5; Fed. Crop Ins. Corp. v. Hester, 765 F.2d 723, 727 (8th Cir.1985). In any event, I am positive that any instructional error was harmless, given the amount of the award and the evidence of outrageous conduct.
The amount of the award cannot, however, be approved, given the pattern of punitive damage awards in comparable cases approved by the Circuit. Considering back pay, front pay and the appropriate emotional distress award, as well as the caps placed by Congress in discrimination cases (including double-recovery in age cases) and punitive damage awards approved by the Missouri courts, I believe $400,000 is the maximum that should be allowed the plaintiff.[12] Such an award is driven largely by what defendant calls "the `phantom' plan to eliminate older workers," more euphemistically described by it elsewhere as Mr. Kelley's "expressed ... preference for a younger work force." As stated earlier, this introductory statement of the policies of new management was surely a plan of action, affecting the entire staff at MGE.
My conclusion, as well as the jury's, is based upon the firing of plaintiff, not his mere displacement from the accounting department. The displacement alone (with a soft landing elsewhere in the company) would probably not merit an award of $100,000.
It is unnecessary to decide whether $6.25 million would violate Due Process, but my selection of $400,000 (or even $1 million) seems entirely safe.
V.
The emotional distress award of $450,000 seems so far out of line from termination awards generally that I conclude it must be reduced to $70,000, as a more appropriate figure, unless plaintiff elects a new trial.
Plaintiff's recovery for emotional trauma is in a sum far in excess of the allowable recovery in cases involving wrongful terminations, even in humiliating circumstances. In what may be considered a typical case, an opinion by Chief Judge Posner opined that $21,000 was too much. "Judges and juries must not be casual with other people's money." Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1229 (7th Cir.1995). A remittitur of $10,500 was allowed, "to keep the award ... within the limits of the rational."[13]
On the other hand, significantly larger awards in comparable contexts have been approved. EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995) ($50,000, where unusual mental suffering was shown); McIntosh v. Irving Trust Co., 887 F. Supp. 662, 666-8 (S.D.N.Y.1995) (noting that most awards have been in the $5,000-$10,000 range but citing New York proceedings where awards have ranged as high as $300,000); Hughes v. Regents of University of Colorado, 967 F. Supp. 431, *1127 437-9 (D.Colo.1996) ($50,000 awarded on remittitur, noting comparable awards where emotional damage was severe).
The present case justifies an award that is considerably out of the ordinary, in light of plaintiff's long service to defendant and its predecessors, with much greater shock likely than where a short-term employee has been wrongfully discharged; the Kafkaesque manner of termination; and the expert proof and family proof of plaintiff's reactive depression. An award of $70,000, about five times that which would ordinarily be justified, seems the maximum authorized here.
VI.
Defendant claims prejudicial surprise and insufficiency of proof on the theory of recovery based on termination (failure to transfer) as an element separate from and more aggravating than the mere displacement of plaintiff from his position as accounting supervisor.
I acknowledge that both sides in the litigation appear to have prepared themselves far more thoroughly on the minor aspect of the case (the job displacement) than on the major aspect (the termination). Pre-trial briefing in particular seemed to concentrate on that point. However, both sides were well prepared on why plaintiff, rather than others in the small accounting group, was selected for displacement. This was an aspect of the termination question, since a reorganization of the accounting group that retained plaintiff would have avoided termination.
There was also deposition preparation on whether plaintiff could have been placed in Lee's Summit, transferring back to his line of work before 1994. This was referred to by plaintiff in opening statement. Tr. 128 (Doc. 143). It was dealt with in testimony without objection. Tr. 470 (Doc. 144). Plaintiff also offered testimony, without objection, that plaintiff was trained to "do every task out there (in Lee's Summit) in operating services or any supervisory jobs." Tr. 465 (Doc. 144).
Defendant was well aware of the transfer problem it was facing, and suggested a voir dire question dealing with that subject. Tr. 78 (Doc. 143).
Defendant's proposed instructions presented the issue of wrongful termination as such (Instructions No. 17 and 25) and did not limit themselves to the removal of plaintiff from his accounting position. As I suggested to counsel early on, perhaps off the record, even if the attorneys neglected to develop fully or argue the possibility of transfer within the company, a juror in deliberations could always perceptively note that displacement might be justified, but that would not answer the termination question, which was the bottomline issue. That is why I used an instruction that made clear that plaintiff, an employee at will, could legally be terminated rather than transferred if there were no reason to keep him in his particular job assignment, but that an age-based decision to fire rather than transfer him would violate the law.
The claim of unfair surprise is therefore unwarranted. Moreover, defendant did not ask for even a day's continuance to prepare itself more thoroughly on the transfer issue. In a post-trial affidavit, defendant apparently takes issue with testimony that a supervisor's position was available at Lee's Summit, by reason of the resignation of a "young supervisor," but that would not establish that no suitable positions were available there. Defendant also does not explain why there was no rebuttal to the Fast testimony about a supervisory vacancy. Presumably fresh memory about such a personnel issue could have been pulled together in a matter of hours, and computerized records could also have been quickly scanned.
CONCLUSION
For reasons discussed, and after considering all of defendant's contentions, I deny its motions for judgment as a matter of law or for new trial, but will grant remittitur of the punitive damage award to $400,000 *1128 and of the emotional distress award to $70,000, unless, within 20 days of this date, plaintiff files notice of his election to retry the case.[14] SO ORDERED.
NOTES
[1] Separately pending is a front-pay issue, which will be granted up to age 62, and a fee issue, still being briefed.
[2] It is not clear whether clerical employees who left the work were terminated or relocated within the company.
[3] The jury may have been favorably impressed by Morse's crisp, intelligent testimony. While I was troubled by a credibility issue regarding alleged progress in preparing a manual for the new computer system, that was not a material issue in the case as no such progress was reported to Harbour.
[4] Arbitrary action by employers is within their prerogatives, but invites a close look for likely prohibited motivation. Senseless inhumanity in personnel decisions is not to be ordinarily expected. Furnco Construction Corp. v. Waters, 438 U.S. 567, 580, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978).
[5] The sense of underlying hostility at the meeting toward older long-time employees was somewhat bolstered in briefing by defendant's characterization of the old gas company as an inefficiently operated organization. The scene was laid, therefore, for a shakeup, targeting older employees.
[6] There are reasons to suppose that Harbour was influenced or directed by Kvapil. In the November 1995 review, Harbour's records suggest an intention that Morse remain in place for some months, if not indefinitely. Kvapil wrote on the form that "immediate" action should be taken by Morse to produce an operating manual for the new computer system. Harbour talked to Kvapil about Morse and, instead of directing Morse to hurry up with his work on the manual, he decided to terminate Morse and did so summarily. It may be inferred that both Kvapil and Harbour remembered Kelley's expressed wish to rejuvenate the work force. In my view it is preposterous to use a "stray remarks" defense in this case.
[7] Compare, Throgmorton v. U.S. Forgecraft Corp., 965 F.2d 643, 645 (8th Cir.1992). Other possible explanations such as downsizing or reduced cash flow are contrary to the evidence. Ms. McDonald's trial testimony of an impression there were no openings over a long period of time is contrary to specific evidence of job availabilities. Although not presented to the jury, there was also statistical evidence of significant turnover, presumably resulting in job openings.
Of course, as the jury was instructed, there is no legal duty to look for a safety net before discharging a thirty-year employee. Large layoffs, or layoff of unsatisfactory or short term employees, may not be commonly accompanied by an attempt to place employees elsewhere in the company. But an attitude of cold disinterest in someone with Morse's record of service is most consistent with the purpose of achieving a "fresh new look." or at least the jury, exercising common sense and their experiences in life, could so find.
[8] The testimony of plaintiff's witnesses regarding the roundtable session rings true, despite some probable misattribution to Mr. Kelley and the like. I found the denials unconvincing. The most interesting testimony was from Ms. McDonald, who was theoretically an "independent" witness. Even if in her current work she has no financial expectations from Southern Union, her professional competence would be in issue if the roundtable discussion triggers a multi-million dollar personnel problem. Doubts will be enhanced regarding such matters as her sophistication about age discrimination linguistics, her authority within the company and her courage. If she heard unfortunate remarks why did she not stop the proceeding to publicly lecture or pass a strong note to the "top brass"? She testified she would have done so, but this may be doubted.
[9] It cannot be assumed, as defendant seems to, that plaintiff would reject a less desirable position, with less pay, at least temporarily. The evidence is that he was willing to travel several hours daily to obtain somewhat comparable work. The relocation pay grade might affect damages, but not liability.
[10] Neither side introduced statistical evidence, but I do not believe that helps defendant. Reducing the work force age level would not occur overnight, or even after nine months, unless it could be inferred that Kelley advocated using a firing squad.
[11] Contrary to plaintiff's theory, which may have been accepted by the jury, my supposition is that Harbour was unusually age sensitive but not personally unfair to plaintiff because of plaintiffs age. I believe he was driven or strongly influenced by the round table session and the desire to carry out company policy.
[12] Apparently other discharged employees will rely on some of the same evidence. The allowable punitive damages, if only plaintiff were a claimant, would in my judgment total $1 million. While the Missouri courts seem not to have considered whether the likelihood of multiple claims should limit punitive damage recoveries, I believe such a factor may be required by Due Process, and is quite likely to be used in remittitur proceedings under § 510.263.6 RSMo. See Dunn v. HOVIC, 1 F.3d 1371, 1391 (3d Cir.1993) (citing Restatement of Torts); Stafford v. Puro, 63 F.3d 1436, 1444 (7th Cir.1995) (citing Illinois law). I would confine § 510.236.4 RSMO, which is not applicable in any event because there is no prior related case, to cases based on identical facts typically mass-tort cases.
[13] Circuit Judge Bright of the Eighth Circuit was on the Avitia panel.
[14] Presumably plaintiff can cross-appeal my remittitur ruling even if he chooses not to seek a new trial, but my suggestion on this appellate question is not researched or binding on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/127564/ | 537 U.S. 1221
TATEv.ILLINOIS.
No. 02-8490.
Supreme Court of United States.
February 24, 2003.
1
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS FOR THE FIRST DISTRICT.
2
App. Ct. Ill., 1st Dist. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2897384/ | NO. 07-08-0066-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 1, 2008
______________________________
In the Matter of the Marriage of SHARON KAY SINYARD
and RODNEY WAYNE SINYARD
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 07-03-20778; HON. PAT PHELAN, PRESIDING
_______________________________
Order of Dismissal
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Rodney Wayne Sinyard filed his notice of appeal in this cause on January 30, 2008.
The final judgment from which he appealed was signed by the trial court on November 7,
2007. Normally, an appeal must be perfected within 30 days of the date the judgment is
signed. However, that deadline can be extended to 90 days if, among other things, the
appellant timely requests findings of fact and conclusions of law. TEX . R. APP. P.
26.1(a)(4). That is what Rodney purported to do here. Thus, he had 20 days from
November 7, 2007 (or until November 27, 2007) to submit his request for such findings and
conclusions. TEX . R. APP. P. 296 (stating that the request must be filed within 20 days of
the date the judgment was signed). However, his request was not filed until December 6,
2007. It being late, it did not serve to extend the time within which he had to perfect his
appeal.
That he may not have received notice from the clerk of the judgment’s entry until
November 26, 2007, does not change the outcome. While the failure to receive such
notice may extend the time within which to request findings of fact and conclusions of law,
notice must be garnered at least 20 days “after” the judgment is signed. Tex. R. Civ. P.
306a(4). Rodney received his within 19 days; thus, Rule 306a(4) is of no benefit to him.
Given the circumstances, we have no jurisdiction over the appeal and dismiss it.
Brian Quinn
Chief Justice
2 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540659/ | El Juez Asociado Señor Kolthoff Caraballo
emitió la opi-nión del Tribunal.
Mediante el presente caso interpretamos la reciente Ley Núm. 243-2011, que introdujo importantes enmiendas a la Ley Núm. 266-2004, conocida como Ley del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores.
Así, determinamos el efecto de algunas de esas enmien-das sobre una persona cuyo nombre fue inscrito en el refe-rido registro, como consecuencia de haberse declarado culpable por el delito de maltrato de menores que establece el Art. 75 de la Ley Núm. 177, infra, pero cuya causa fue sobreseída después de haber cumplido con el programa de desvío que provee el Art. 80 de la propia Ley Núm. 177, infra. Además, pautamos si tales enmiendas deben tener efecto retroactivo.
I
En Sr. Jeffrey Hernández García (peticionario) fue acu-sado por infracción del Art. 75 de la Ley Núm. 177-2003,(1) conocida como Ley para el Bienestar y la Protección Integral de la Niñez.(2) En la acusación, únicamente se alegó que el peticionario maltrató a su hija de un año al insul-tarla verbalmente. Así las cosas, el peticionario suscribió *662un preacuerdo con el Ministerio Público mediante el cual hizo alegación de culpabilidad y recibió el beneficio del pro-grama de desvío dispuesto en el Art. 80 de la Ley Núm. 177, supra. (3) Conforme a ello, el Tribunal de Primera Ins-tancia paralizó los procedimientos y concedió al señor Her-nández García el privilegio de la libertad a prueba por el término de un año.
Una vez el peticionario cumplió con el desvío, el Tribunal de Primera Instancia archivó el caso y ordenó su sobreseimiento. Sin embargo, y como consecuencia del pro-ceso, el nombre del peticionario fue incluido en el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores (Registro), creado por la Ley Núm. 266-2004.(4) Posteriormente, y a solicitud del peticionario, el Tribunal de Primera Instancia ordenó al Superintendente de la Po-licía que devolviera al peticionario las huellas dactilares y fotografías que se le tomaron como parte de la investiga-ción criminal realizada. A pesar de dicha orden, cada año la Policía continuó tomándole las huellas dactilares y fotogra-fías al peticionario. Ante esta situación, el señor Hernán-dez García acudió al Tribunal de Primera Instancia y soli-citó que se le ordenara a la Policía que se abstuviera de tomarle fotos y huellas dactilares cada año y, además, que se eliminara su nombre del Registro.
Luego de varios trámites procesales, el Tribunal de Pri-mera Instancia celebró una vista argumentativa sobre la solicitud del peticionario en la que determinó su elimina-ción del Registro. No obstante, el Ministerio Público pre-sentó una moción de reconsideración en la cual argumentó que, según decisiones recientes del Tribunal de Apelacio-nes, el señor Hernández García se debía considerar como "convicto” de acuerdo con la Ley Núm. 177, supra, por lo que el peticionario debía permanecer en el Registro. Luego *663de evaluar los argumentos de ambas partes, el Tribunal de Primera Instancia emitió una resolución en la que deter-minó que ciertamente el peticionario debía permanecer en el Registro.
Inconforme con la resolución del Tribunal de Primera Instancia, el señor Hernández García presentó ante el Tribunal de Apelaciones un recurso de certiorari en el cual solicitó la revocación de la resolución. Sin embargo, el Tribunal de Apelaciones confirmó al Tribunal de Primera Ins-tancia fundamentado en que la alegación de culpabilidad del peticionario por el delito de maltrato de menores —Art. 75 de la Ley Núm. 177, supra— había que considerarla como una convicción, aunque la persona se haya benefi-ciado del programa de desvío. Por lo tanto, el peticionario debía permanecer en el Registro.(5) Específicamente, el Tribunal de Apelaciones señaló lo siguiente:
A la luz del análisis realizado, concluimos que el peticiona-rio es un convicto, bajo las disposiciones de la Ley [Núm.] 177 y que no procede que este Tribunal, por fiat judicial, esta-blezca excepciones no contempladas en el estatuto. La Ley Núm. 266 no contempla excepciones ni concede discreción al Tribunal para eximir a determinados convictos del requisito de registrarse.(6)
En desacuerdo con la decisión del Tribunal de Apelacio-nes, el señor Hernández García presentó un recurso de apelación ante esta Curia en el que señaló, en síntesis, que había errado el foro apelativo intermedio al determinar que este era un convicto según las disposiciones de la Ley Núm. 177, supra, y que, por lo tanto, debía permanecer en el Registro.
Ahora bien, estando el recurso en turno para considera-ción de esta Curia, el 27 de enero de 2012, la Oficina del Procurador General compareció mediante una Moción de *664desestimación por academicidad. A través de esta moción, el Procurador General señaló que mediante la aprobación de la Ley Núm. 243, supra, el estado de derecho en la Ley Núm. 177, supra, cambió, concediéndole al peticionario lo que este solicita y, por lo tanto, haciendo académico su recurso. No obstante, decidimos atender la Moción de des-estimación por academicidad que presentó el Procurador General como una en la cual se allana a lo solicitado en el recurso de certiorari(7) Siendo así, y de acuerdo con la Re-gla 50 del Reglamento del Tribunal Supremo, 183 D.P.R. 386, 484 (2011), resolvemos.
*665hH I — i
A. Ley Núm. 177-2003 conocida como Ley para el Bienestar y la Protección Integral de la Niñez(8)
La Ley Núm. 177, supra, renfocó la política pública en Puerto Rico hacia la concertación de esfuerzos privados, comunitarios, familiares y gubernamentales con énfasis en la reunificación y el fortalecimiento de las familias.(9) El Art. 3 de esta ley creó, como nueva política pública del Estado, asegurar el mejor interés, la protección y el bienestar integral de la infancia y la adolescencia, y que, en el deber de asegurar ese bienestar, se deben pro-veer oportunidades y esfuerzos razonables que permitan conservar los vínculos familiares y comunitarios cuando ello no les perjudique.(10)
Como parte de esa política protectora, la Ley Núm. 177, supra, tipificó delitos, impuso penalidades, y creó medidas y mecanismos protectores necesarios para proteger a los menores. Esta legislación establece un procedimiento dirigido a velar por el bienestar de los menores al tiempo que propende a la rehabilitación de los padres para que éstos puedan ejercer su deber correctamente.(11) Relacionado con la consecución de esa rehabilitación, el Art. 80 de la Ley Núm. 177, supra, estableció un procedimiento de desvío que tienen disponible —a discreción del tribunal— aquellos primeros transgresores de esta ley. En lo pertinente, este artículo dispone que
[e]n cualquier caso en que una persona que no haya sido pre-viamente convicta por violar las disposiciones de esta Ley o de cualquier otra ley de Puerto Rico o de los Estados Unidos re-*666lacionada con conducta maltratante hacia menores, incurra en conducta tipificada como delito en esta Ley, el tribunal podrá, motu propio o a solicitud de la defensa o del Ministerio Fiscal, después de la celebración del juicio y sin que medie una con-vicción, o luego de hacer una alegación de culpabilidad, suspender todo procedimiento y someter a dicha persona a un programa de desvío para la reeducación y readiestramiento de personas que incurren en conducta maltratante contra meno-res. ...
Si la persona beneficiada del programa de desvío que esta-blece este Artículo cumple a cabalidad con las condiciones im-puestas como parte del mismo, el Tribunal podrá, en el ejerci-cio de su discreción y previa celebración de vista, ordenar el sobreseimiento del caso en su contra. El sobreseimiento bajo este Artículo se realizará sin pronunciamiento de sentencia del tribunal, pero éste conservará el expediente de la causa con carácter confidencial, no accesible al público y separado de otros récords, a los fines exclusivos de ser utilizado por los tribunales al determinar si en procesos subsiguientes la persona cualifica para el beneficio provisto en este Artículo.
El sobreseimiento del caso no se considerará como una con-vicción a los fines de las descualificaciones o incapacidades impuestas por ley a los convictos por la comisión de algún delito y la persona cuyo caso haya sido sobreseído tendrá de-recho a que el Superintendente de la Policía le devuelva cua-lesquiera récords de huellas digitales y fotografías que obren en poder de la Policía de Puerto Rico tomadas en relación con la violación de ley por la cual fue procesado.(12)
Ahora bien, el Art. 80 de la Ley Núm. 177, supra, creó interpretaciones inconsistentes sobre lo que se consideraba un “convicto” para efectos de la ley. Por ejemplo, un panel del Tribunal de Apelaciones interpretó que “convicto” era solamente aquella persona contra la cual se había dictado un fallo de culpabilidad e imponía una sentencia y, por lo tanto, aquel que disfrutaba de un desvío no se podía consi-derar convicto para ser inscrito en el Registro.(13) Por otro lado, otros paneles del foro apelativo intermedio interpre-taron que las personas que hacían alegación de culpabili-dad y recibían el beneficio del programa de desvío de la Ley *667Núm. 177, supra, se consideraban convictos y, por lo tanto, estaban obligados a estar inscritos en el Registro.(14)
B. Ley Núm. 266-2004 conocida como Ley del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menoresi(15)
El 29 de julio de 1994, en una pequeña comunidad central del estado de Nueva Jersey, Jesse Timmendequas violó y asesinó a Megan Kanka, una niña de siete años quien —junto a sus padres— era su vecina. Al momento del ase-sinato de esta niña, ya Timmendequas contaba con dos convicciones previas por delitos sexuales contra menores. En aquel entonces, este terrible crimen acaparó la atención nacional, principalmente porque los padres de la pequeña Megan iniciaron una campaña para presionar a la legisla-tura de Nueva Jersey a que aprobaran una ley mediante la cual a los ciudadanos se les notificara de la presencia de ofensores sexuales en su comunidad. Así, en octubre 31 de 1994, la legislatura de Nueva Jersey aprobó una ley que requiere la creación de un registro de ofensores sexuales en ese estado, haciendo además obligatorio notificar a los re-sidentes de las comunidades sobre la presencia de este tipo de convicto.(16)
Después de la acción que tomó el estado de Nueva Jersey, muchos estados copiaron la iniciativa estableciendo re-gistros de ofensores sexuales según sus propios términos y parámetros. En 1994, el Congreso de Estados Unidos aprobó la Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Ací(17) (conocida como Megan’s Law), mediante la cual se estimuló a que los *668estados aprobaran leyes que establecieran este tipo de registros.(18) Desde entonces, y ante la presión tanto de la opinión pública como del Congreso de Estados Unidos, cada estado ha adoptado alguna versión de la Megan's Law.
Así, el 9 de septiembre de 2004 se aprobó en Puerto Rico la Ley Núm. 266, supra, que creó el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores. El propósito de este registro es proteger a la comunidad contra actos de abuso sexual y abusos contra menores, además de servir como un medio para garantizar la seguridad, la protección y el bienestar general. (19) Así se señala claramente en su exposición de motivos al indicar que “el Estado tiene la obligación de proteger a la ciudadanía y a las víctimas de delito”.(20) Y es que existe un patente peligro de reincidencia en la comisión de delitos que implican crímenes sexuales o que constituyen abuso contra menores, lo que representa un riesgo y se puede traducir en graves daños a las posibles víctimas.(21)
A consecuencia de lo anterior, la Asamblea Legislativa entendió que existía la necesidad de que, tanto las agencias de orden público como la comunidad, conozcan el paradero de aquellas personas que han sido convictas de delitos de esta naturaleza. (22) En armonía con todo lo anterior, el Art. 1 de esta ley dispone, en lo pertinente, lo siguiente:
Ante el peligro que representa que la persona convicta por *669delitos de esta naturaleza incurra nuevamente en esa conducta [,] y ante el riesgo que puede representar y el daño que puede causar una persona con tendencia irreprimida de cometer delitos sexuales!,] es necesario establecer un Registro en el que se anote su dirección y que contenga información sobre su persona y otros datos relevantes. Por medio de este Registro se mantendrán informadas todas las personas o enti-dades que lo soliciten, sobre el paradero de aquellas personas que han sido convictas de delitos sexuales o abuso contra me-nores, según se definen estos términos en la Ley, cuando éstas se reintegren a la libre comunidad. El Registro que se crea mediante esta Ley no tiene un propósito punitivo; es un medio para garantizar la seguridad, protección y bienestar general de los sectores más vulnerables y merecedores de protección de nuestra sociedad. (Enfasis suplido).
C. Ley 243-2011
Recientemente, se aprobó la Ley Núm. 243-2011, con el propósito de enmendar la Ley del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores, Ley Núm. 266, supra.(23) En la Exposición de Motivos de la ley, la Asamblea Legislativa explicó que esta se creó para atemperar la Ley Núm. 266, supra, a las disposiciones de la Ley Federal Adam Walsh Child Protection and Safety Act of 2006, también conocida como Sex Offender Registration and Notification Act (SORNA). En su Exposición de Motivos, la Ley Núm. 243 dispone lo siguiente:
La Ley [SORNA] de 2006 establece unas obligaciones míni-mas a los estados y territorios de los Estados Unidos, con res-pecto al registro de personas convictas por delitos sexuales. En particular, dicho estatuto establece una revisión completa de los estándares nacionales para el registro y notificación de los ofensores sexuales, designada para fortalecer y aumentar la efectividad del registro para la seguridad del público. Además, sus disposiciones deberán ser implementadas en todas las ju-risdicciones de Estados Unidos de América, los cincuenta (50) estados, los territorios, incluyendo a Puerto Rico y las nacio-nes indígenas federalmente reconocidas. Entre las disposicio-nes sobresalientes de esta legislación federal se encuentra el *670establecimiento de unas guías mínimas publicadas por el De-partamento de Justicia Federal para ser cumplidas por todas las jurisdicciones de Estados Unidos. Las guías revisadas fue-ron aprobadas el 2 de julio de 2008. Federal Register Vol. 73, No. 128. Estas guías establecen unos estándares mínimos de cumplimiento. Sin embargo, no prohíbe que los estados, sus territorios y las naciones indígenas adopten medidas adiciona-les más estrictas que suplementen las guías.(24)
En lo pertinente al caso de autos, la Ley Núm. 243, supra, enmendó la Ley Núm. 266, supra, añadiendo nuevas definiciones y, en específico, estableciendo tres clasificacio-nes de lo que se considerará un “ofensor sexual” para efec-tos del Registro de la Ley Núm. 266, supra. Además, se dispone sobre los deberes de la persona incluida en el Re-gistro y los deberes de las agencias que mantienen la infor-mación del Registro actualizada.
D. Art. 1 de la Ley Núm. 243, supra
Para aclarar concluyentemente quién se considera “convicto” para efectos del Registro, la Ley Núm. 243, supra, definió por primera vez este término. Así, el Art. 1 de la Ley Núm. 243 enmendó el Art. 2 de la Ley Núm. 266 para establecer que “convicto” es toda persona convicta por algún delito, sus tentativas o conspiraciones, según establecidos en la propia ley, e incluye, además, a “toda persona que disfrute de libertad bajo palabra, condicionada, libertad a prueba o algún método de cumplimiento alterno de la pena de reclusión, por los delitos, sus tentativas o conspiraciones, establecidas en esta Ley”. (Enfasis suplido).(25) Quiere decir, entonces, que se considerará convicto a toda persona que cumpla según cualquier método alterno la pena de reclusión, como es el programa de desvío establecido en la Ley Núm. 177, supra. Además, y como adelantamos, el Art. 1 de la Ley Núm. 243 también enmendó el Art. 2 de la Ley Núm. 266 para establecer quién *671se considerará un “ofensor sexual”, estableciendo tres cla-sificaciones basadas en el delito sexual cometido: ofensor sexual tipo I, ofensor sexual tipo II y ofensor sexual tipo III.
Por otra parte, y muy pertinente al caso de autos, el Art. 2(8)(iii) de la Ley Núm. 266, supra, según enmendada, ahora dispone que se considerará un ofensor sexual tipo I aquella persona que incurra en el “[d]elito de maltrato a menores, según establecido en los Artículos 75 y 76 de la Ley Núm. 177-2003, según enmendada, cuando se incurre en conducta constitutiva de abuso sexual”. (Enfasis suplido). De manera que, una persona que infringe el Art. 75 de la Ley Núm. 177, supra, se considerará ofensor sexual tipo I y se registrará en el Registro únicamente si su conducta constituyó abuso sexual.
E. Art. 2 de la Ley Núm. 243, supra
El Art. 2 de la Ley Núm. 243, supra, enmendó el Art. 3 de la Ley Núm. 266, supra, para establecer cuáles personas tendrán ahora la obligación de aparecer en el Registro. En lo pertinente, este artículo dispone que se re-gistrarán los ofensores sexuales tipo I, ofensores sexuales tipo II y ofensores sexuales tipo III. Además, el inciso (c) de este mismo artículo expresa que también se registrarán las personas convictas que disfrutan de algún método alterno de cumplimiento de la pena de reclusión por haber come-tido alguno de los delitos enumerados en el Art. 3 de la Ley Núm. 266, supra, según enmendada(26) Sin embargo, en su inciso (d), este artículo también dispone que serán regis-tradas
[Z]as personas que al momento de la aprobación de esta Ley se encuentren recluidas o participando de algún programa de desvío, tratamiento o rehabilitación de la Administración de Corrección, o que posterior a la aprobación de esta Ley sean *672sometidos a dichos programas, por la comisión de alguno de los delitos enumerados o sus tentativas o conspiraciones en el Artículo 2 de esta Ley. Disponiéndose que en estos casos, una vez el acusado cumpla con las condiciones impuestas por el Tribunal, y éste ordene el sobreseimiento de la acción criminal, según lo disponen las leyes pertinentes a dichos programas, el Sistema eliminará la inscripción del acusado en el Registro aquí establecido. (Énfasis suplido).
De lo anterior podemos colegir que a partir de la apro-bación de la Ley Núm. 243-2011, una vez la persona cum-ple con el programa de desvío y el tribunal ordena el sobre-seimiento de la acción criminal, se deberá eliminar su nombre del Registro.
F. Art. 15 de la Ley Núm. 243, supra
El Art. 15 de la Ley Núm. 243, supra —“Vigencia”— tiene como propósito establecer cuándo comenzarán a regir todas las enmiendas que el estatuto introduce a la Ley Núm. 266, supra, señalando que éstas tendrían vigencia inmediata a la aprobación de la ley. No obstante, este artículo también establece que las disposiciones de esa ley —con la excepción de dos instancias— podrán tener efecto retroactivo.(27) Al utilizar la palabra “podrán” es evidente que el legislador parece haberle imprimido un carácter discrecional a la aplicación retroactiva de todas aquellas disposiciones que expresamente éste no exceptuó.(28) Así también lo reconoce el Procurador General en su Moción de desestimación por academicidad, al hablar del “efecto retroactivo discrecional de la Ley Núm. 243”. (Enfasis en el original).(29)
*673Ahora bien, el Art. 9 del Código Penal de 2004 establece el principio de favorabilidad.(30) Este artículo dis-pone sobre la aplicación retroactiva de una ley penal que favorece a una persona imputada de delito. En lo pertinente, el Art. 9 dispone lo siguiente:
(a) Si la ley vigente al tiempo de cometerse el delito es dis-tinta de la que exista al procesar al imputado o al imponerle la sentencia, se aplicará siempre la ley más benigna.
(b) Si durante el término en que la persona está cumpliendo la sentencia entra en vigor una ley más benigna en cuanto a la pena o ala medida de seguridad o al modo de ejecutarlas, se aplicará retroactivamente.
(c) Si durante el término en que la persona está cumpliendo la sentencia entra en vigor una ley que suprime el delito, o el Tribunal Supremo emite una decisión que despenalice el he-cho, la pena quedará extinguida y la persona liberada, de es-tar recluida o en restricción de libertad. (Énfasis suplido).
El principio de favorabilidad establece que si una ley penal se aprueba posterior a la comisión de unos hechos delictivos, y sus efectos resultan en un tratamiento más favorable para un acusado, ésta se debe aplicar retroactivamente, de modo que el acusado disfrute de sus beneficios. No obstante, hemos señalado que el principio de favorabilidad no tiene rango constitucional, por lo que la aplicación retroactiva de las leyes penales que favorezcan al acusado queda dentro de la prerrogativa total del legislador. (31) Siendo así, es permisible restringir su alcance mediante legislación.(32) Por eso, para poder aplicar retroactivamente un nuevo estatuto penal en beneficio de un ciudadano —principio de favorabilidad— debemos, en primer lugar, determinar si el legislador no ha limitado tal alcance.(33)
*674III
En el presente caso, luego de que el peticionario Her-nández García presentara su petición de apelación ante esta Curia, entraron en vigor las enmiendas a la Ley Núm. 266, supra, introducidas por la Ley Núm. 243, supra. Entre los cambios incorporados por esta ley se encuentra el que, al definir la palabra “convicto” en el marco de la Ley Núm. 266, el legislador aclaró que una persona que dis-frute de libertad bajo palabra, condicionada, libertad a prueba o algún método de cumplimiento alterno de la pena de reclusión se considerará convicto. Por lo tanto, en el caso de autos el foro a quo tenía razón al interpretar que las personas que hacían alegación de culpabilidad y reci-bían el beneficio del programa de desvío de la Ley Núm. 177, supra, se consideran convictos.
Por otro lado, y como vimos, la enmienda a la Ley Núm. 266, supra, también creó un sistema de clasificación que establece que si una persona ha infringido el Art. 75 de la Ley Núm. 177, supra, se clasificará como un ofensor sexual tipo I siempre y cuando incurra en conducta que constituya abuso sexual. Al introducir esta enmienda, el legislador no sólo define por primera vez la figura del ofensor sexual para efectos del Registro y establece gradaciones relaciona-das a ésta, sino que aclara su alcance en el contexto de los artículos 75 y 76 de la Ley Núm. 177, supra, señalando que la convicción que requerirá inscripción es aquella constitu-tiva de abuso sexual. Tal limitación no existía en la Ley Núm. 266, supra, antes de esta enmienda, pues el estatuto no especificaba que la conducta que infringía el Art. 75 de la Ley Núm. 177, supra, tenía que constituir abuso sexual.
Sin embargo, en cuanto al Art. 3 de la Ley Núm. 266-2004, según enmendado por la Ley Núm. 243-2011, en-mienda que permite ahora la eliminación del Registro de aquellos ciudadanos cuyas causas hayan sido sobreseídas como consecuencia de haber cumplido con un programa de *675desvío, es claro que las circunstancias particulares del pe-ticionario Hernández García no están contenidas en el estatuto. Esto, pues “al momento” de la aprobación de la enmienda, el peticionario no se encontraba participando del programa de desvío de la Ley Núm. 177, sino que lo había completado y se había sobreseído la causa criminal en su contra. Como resultado de lo anterior, y a pesar de la discreción que el legislador otorgó a los tribunales para aplicar la nueva enmienda en favor del ciudadano, éste no incluyó las circunstancias particulares del aquí peticionario.
Una circunstancia parecida ocurre con la aplicación de la enmienda que hizo la Ley Núm. 243-2011 al Art. 2(8)(iii) de la Ley Núm. 266. Aunque el legislador dejó fuera de la definición de “convicto” para efectos de la Ley Núm. 266 el delito por el cual el aquí peticionario hizo alegación de cul-pabilidad, nada dispuso con relación a aquellas personas que, como Hernández García, estuvieran inscritos como consecuencia de delitos que pudieran haberse entendido como incluidos en la ley, pero que ya sin duda no lo están.
Por otro lado, es un hecho que la inscripción de una persona en el Registro creado por la Ley Núm. 266-2004, supra, surge como consecuencia obligada de una convicción por alguno de los delitos que expresamente establece la ley, y como parte del acto de lectura de sentencia que se dicta en su contra.(34) Sin embargo, la Exposición de Motivos de la Ley Núm. 266-2004, según enmendada, ex-presa claramente que el Registro no tiene un propósito punitivo.(35) Esto es, la intención del Estado al ordenar que como parte de su sentencia una persona convicta sea inscrita en el Registro no constituye un castigo. No empece lo anterior, es evidente que una persona cuyo nombre aparece inscrito en el referido Registro se perjudica al sufrir el des-*676crédito que implica ser identificado pública y constante-mente como un ofensor sexual o maltratante de menores, y al padecer del estigma social que inevitablemente ello aca-rrea; ciertamente las consecuencias son muy negativas. Como señaló el Tribunal Supremo de Estados Unidos en Smith v. Doe, 538 U.S. 84, 99 (2003): “The publicity [of the sex offender registration] may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism”. (Este es el caso en el que el Tribunal Supremo federal sostuvo la constituciona-lidad a nivel federal de los registros de ofensores sexuales {Megan’s Law) ante el planteamiento de que violaban la cláusula ex post facto de la Constitución Federal).
Ahora bien, si el propósito del Registro no es punitivo, ¿a qué obedece entonces su implantación? Nuevamente, la Exposición de Motivos de la Ley Núm. 266-2004, según enmendada, supra, así como el primer artículo de la propia ley nos proveen la contestación a tal interrogante al seña-larnos que el Registro “es un medio para garantizar la se-guridad, protección y bienestar general de los sectores más vulnerables y merecedores de protección [en] nuestra sociedad”.(36) Esto es, “[a]nte el peligro que representa que la persona convicta por delitos de esta naturaleza incurra nuevamente en esa conducta y ante el riesgo que puede representar y el daño que puede causar una persona con tendencia irreprimida de cometer delitos sexuales”, (37) lo que se pretende “exclusivamente [es] proteger la seguridad y el bienestar de los sectores más vulnerables ... de nues-tra sociedad”.(38)
De igual manera y de forma reiterada lo expuso la Asamblea Legislativas en la Exposición de Motivos de la Ley Núm. 243-2011, supra, al señalar lo siguiente:
*677Resulta meritorio, además, aprovechar esta ocasión para reiterar que nuestro Registro, al igual que los Registros esta-blecidos en todos los estados de los Estados Unidos, no tiene un propósito punitivo; es un medio por el cual el Estado puede velar por la seguridad, protección y bienestar general. Igual-mente, enfatizamos que brindar mayor protección y seguridad a los menores de edad en cuanto a la explotación sexual y crímenes violentos se refiere; promover la seguridad de los jóvenes; atacar y prevenir el abuso infantil y la pornografía infantil, entre otros asuntos, reviste uno de alto interés pú-blico, que amerita la aprobación por parte de la Asamblea Le-gislativa de Puerto Rico de esta Ley.(39)
Como corolario de todo lo anterior, es forzoso concluir que la inscripción en el Registro creado por la Ley Núm. 266-2004, supra, constituye una medida de seguridad que, aunque no surge de una ley penal, es impuesta como consecuencia del incumplimiento de una ley penal por parte de un ciudadano, medida de seguridad que recae como parte de su sentencia. Esto es, la persona que se encuentra inscrita en el Registro está cumpliendo con parte de lo que es —por mandato de ley— su sentencia penal.
El hecho de que la Ley Núm. .266-2004, supra, sea iden-tificada expresamente por el legislador como una ley no penal, no significa que sus disposiciones no puedan ser comprendidas por el principio de favorabilidad del Art. 9 del Código Penal, supra.(40) Después de todo, las llamadas Megan’s Law son leyes auxiliares de leyes penales cuya aplicación —como en el caso de autos— se da muchas veces como parte de un proceso penal. En ese sentido, aunque la Ley Núm. 266-2004, supra, sea una ley civil “no punitiva”, según designada por el legislador, ese hecho no es óbice para la aplicación del principio de favorabilidad en aque-llas instancias en que la denominada ley “no punitiva” *678tiene efectos notablemente perjudiciales en el individuo a quien se le aplica.
Por otro lado, es cierto que la medida de seguridad que constituye la inscripción en el Registro de un ofensor sexual es distinta a la del Art. 91 del Código Penal, 33 L.P.R.A. sec. 4719, pues esta última conlleva la reclusión de la persona en alguna institución para tratamiento. No obstante, eso no implica que toda medida de seguridad requiera la reclusión de la persona. Tanto el Art. 96 del propio Código Penal, 33 L.P.R.A. sec. 4724, como la Regla 241(e) de Procedimiento Criminal, 34 L.P.R.A. Ap. II, facultan al tribunal para permitir que una medida de seguridad se complete en la libre comunidad, siempre y cuando exista supervisión(41) Además, en Smith v. Doe, supra, el Tribunal Supremo federal equiparó la acción de inscribir a un ofensor sexual en un registro público (Megan’s Law), a una medida de seguridad (restrictive measure).(42)
*679En el presente caso, año tras año la Policía de Puerto Rico le ha tomado fotos y huellas dactilares al señor Her-nández García por el hecho de que éste se encuentra ins-crito en el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores. Es claro, entonces, que las circunstancias son las descritas por el inciso (b) del Art. 9 del Código Penal, supra, id est, “durante el término en que” el peticionario Hernández García se encontraba su-friendo los efectos —-justos o injustos— de lo que fuera el proceso de su alegación de culpabilidad, desvío y sobresei-miento de su causa, “entr[ó] en vigor una ley más benigna en cuanto a la pena o a la medida de seguridad o al modo de ejecutarl[a]’\
¿Debe aplicarse esa enmienda que favorece al peticionario retroactivamente? Ciertamente, ya que éste satisface los requerimientos del Art. 3(d) de la Ley Núm. 266. Toda enmienda producida por la Ley Núm. 243 a la Ley Núm. 266, conocida como Ley del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores, que resulte en un beneficio para aquellas personas que están sufriendo los efectos de la Ley Núm. 266, supra, se deberá aplicar retroactivamente de acuerdo con el Art. 9(b) del Código Penal, supra. Claro está, siempre y cuando la persona cumpla con las condiciones establecidas en la Ley Núm. 266, según enmendada, supra.
De esta manera, interpretamos que la discreción otor-gada por el legislador en la aplicación de estas enmiendas —Art. 15 de la Ley Núm. 243, supra— no aplica a aquellas que puedan beneficiar a un ciudadano cuyo nombre se en-cuentra inscrito en este Registro. Esto, ya que el legislador no limitó expresamente la retroactividad del beneficio. Al contrario, la intención legislativa de la Ley Núm. 243, supra, con relación este tipo de enmienda en beneficio del ciudadano fue aclarar la Ley Núm. 266, supra, y hacer re-troactivos sus efectos. Así surge, no sólo del texto de la *680Exposición de Motivos —refiriéndose al nuevo Art. 3 de la Ley Núm. 266 — (43) sino del texto mismo del Art. 3 según fuera enmendado, el cual en su inciso (d) retrotrae el al-cance de este artículo a “[l\as personas que al momento de la aprobación de esta Ley se encuentren ... participando de algún programa de desvío, tratamiento o rehabilitación .... Disponiéndose que en estos casos, una vez el acusado cum-pla con las condiciones [y se] ordene el sobreseimiento de la acción criminal!,] el Sistema eliminará la inscripción del acusado en el Registro aquí establecido”. El hecho de que tal retroactividad no alcanzara las circunstancias del aquí peticionario, precisa entonces la aplicación, como hemos hecho, del principio de favorabilidad.
En el caso de autos, a pesar de que el señor Hernández García cumplió con el programa de desvío dispuesto en el Art. 80 de la Ley Núm. 177, supra, y el Tribunal de Primera Instancia ordenó el sobreseimiento de la causa penal, su nombre fue inscrito en el Registro por tratarse de un delito contra la protección a los menores. Aunque esta úl-tima realidad jurídica fue cambiada mediante las enmien-das introducidas a la Ley Núm. 266, supra, por la Ley Núm. 243, supra, persiste una resolución del Tribunal de Primera Instancia en perjuicio del peticionario. Así las co-sas, al comparar los artículos pertinentes de la Ley Núm. 266, supra, vigentes al momento de la resolución del Tribunal de Primera Instancia y las enmiendas producidas por la Ley Núm. 243, supra, es evidente que la nueva ley es más favorable para el señor Hernández García. Por lo tanto, debemos aplicar el principio de favorabilidad.
Al peticionario se le imputó infringir el Art. 75 de la Ley Núm. 177, supra, y pudo optar al desvío del Art. 80 de *681dicha ley precisamente porque la conducta imputada no implicó abuso sexual. Por lo tanto, el delito por el cual hizo alegación de culpabilidad ya no requiere la inscripción en el Registro. Además, el peticionario cumplió con su pro-grama de desvío y su causa fue sobreseída, por lo que, como resultado de la reciente enmienda al Art. 3 de la Ley Núm. 243, supra, su nombre hubiera tenido que ser elimi-nado del Registro de todos modos. Ante esta situación, no existe base legal para que el señor Hernández García per-manezca en el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores de la Ley Núm. 266, supra, según enmendada.
IV
Por los fundamentos antes expuestos, acogemos el es-crito presentado como una petición de “certiorari”, expedi-mos el auto y revocamos la sentencia del Tribunal de Apelaciones. Ordenamos que se elimine al señor Hernández García del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores.
Se dictará sentencia de conformidad.
El Juez Presidente Señor Hernández Denton hace cons-tar la expresión siguiente:
El Juez Presidente Señor Hernández Denton concurre con el resultado de la Opinión mayoritaria por entender que el prin-cipio de favorabilidad del Art. 9 del Código Penal, 33 L.P.R.A. see. 4637, no plica a los hechos de este recurso. El Art. 1 de la Ley que creó el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores, Ley Núm. 266-2004 (4 L.P.R.A. see. 536 et seq.), dispone claramente que este estatuto “no tiene un propósito punitivo”, lo cual excluye la aplicación del principio de favorabilidad. Además, en lo pertinente al caso ante nos, la Ley Núm. 243-2011 enmendó el Art. 3(d) de la Ley Núm. 266-2004, supra, para establecer que el nombre del ciudadano se eliminará del Registro una vez este cumpla *682con un programa de desvío y el tribunal ordene el sobresei-miento de la acción criminal. Según el Art. 15 de la Ley Núm. 243-2011, las disposiciones de esa ley podrán tener efecto retroactivo. Consiguientemente, hubiera dejado sin efecto los dictámenes de los foros inferiores mediante la interpretación de la Ley Núm. 266-2004, según enmendada, supra, sin hacer referencia al Código Penal.
La Juez Asociada Señora Rodríguez Rodríguez hace constar la expresión siguiente:
La Juez Asociada Señora Rodríguez Rodríguez concurre con la Opinión del Tribunal por entender que la Ley Núm. 243 de 14 de diciembre de 2011, ley para enmendar la Ley del Regis-tro de Personas Convictas por Delitos Sexuales y Abuso contra Menores y otros fines, excluyó de este registro a aquellas per-sonas que incurrieron en el delito de maltrato de menores ti-pificado en los Arts. 75 y 76 de la Ley Núm. 177 de 2003 (8 L.P.R.A. sees. 450c y 450d), cuando el maltrato no constituyó abuso sexual. Cónsono con las enmiendas, procede excluir al peticionario de dicho Registro, ya que los hechos por los cuales hizo alegación de culpabilidad no constituyeron abuso sexual.
Asimismo, la Juez Asociada Señora Rodríguez Rodríguez considera que el principio de favorabilidad incluido en el Art. 9 del Código Penal, 33 L.P.R.A. see. 4637, no aplica en este caso. El Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores tiene como fin garantizar la seguridad, la protección y el bienestar general de los menores, no impo-ner una pena. En este sentido, el legislador puede otorgarle discreción a los tribunales para excluir o mantener a una persona convicta de abuso sexual en el mencionado Registro.
El Juez Presidente Señor Hernández Denton se unió a las expresiones de la Juez Asociada Señora Rodríguez Rodríguez. El Juez Asociado Señor Martínez Torres emitió una opinión concurrente, a la cual se unió la Jueza Aso-ciada Señora Pabón Charneco.
El Art. 75 de la Ley Núm. 177-2003 dispone, en lo pertinente, que
“[t]odo padre, madre o persona responsable por el bienestar de un menor o cualquier otra persona que por acción u omisión intencional que cause daño o ponga en riesgo a un menor de sufrir daño a su salud e integridad física, mental o emocio-nal, incluyendo pero sin limitarse a incurrir en conducta constitutiva de delito sexual, incurrir en conducta constitutiva de violencia doméstica en presencia de menores, incurrir en conducta obscena o la utilización de un menor para ejecutar conducta obscena será sancionado ...”.
8 L.P.R.A. sec. 450c.
8 L.P.R.A. sec. 450h.
4 L.P.R.A. sec. 536 et seq.
Apéndice de la Apelación, págs. 149-150.
íd., pág. 151.
Decidimos atender la Moción de desestimación por academicidad que pre-sentó el Procurador General como una en la cual se allana a lo solicitado en el recurso de certiorari por lo siguiente: En el presente caso, el Tribunal de Primera Instancia emitió una Resolución el 29 de julio de 2011 en la que determinó que el peticionario permanezca en el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores (Registro). Véase Apéndice de la Petición de certiorari, pág. 78. Tal determinación fue confirmada por una sentencia final del Tribunal de Apela-ciones el 16 de noviembre de 2011. Véase íd., pág. 132. Con relación a esa sentencia final es que el peticionario recurre en tiempo ante esta Curia. Es entonces que so-breviene un cambio en la ley que crea un estado de derecho distinto —en esta ins-tancia y por lo que explicamos en la Opinión— en beneficio del peticionario.
Ahora bien, con su Moción de desestimación por academicidad, el Procurador General sometió también una copia de una Moción informativa que el Ministerio Público presentó ante el Tribunal de Primera Instancia el 25 de enero de 2012, esto es, dos días antes de que se presentara ante este Tribunal la Moción de desestima-ción por academicidad. Véase Anejo Núm. 2 de la Moción de desestimación por academicidad. En esta moción informativa, el Ministerio Público le solicita al Tribual de Primera Instancia que “tome conocimiento de que el Ministerio Público no habrá de oponerse a la eliminación del señor Hernández García del Registro de Personas Convictas por Delitos Sexuales y Abuso Contra Menores”. Id., pág. 17. Sin embargo, es menester señalar que en la etapa procesal en la que se encuentra este caso, el foro primario no puede reconsiderar su posición, puesto que ha perdido su jurisdicción con relación a aquellas materias o asuntos que se cuestionan en el recurso.
Siendo así, es claro que lo único que ha ocurrido en el caso de autos es un cambio en la norma cuestionada, mas no así en las circunstancias que provocaron la apela-ción del peticionario, pues este permanece, conforme a la sentencia del Tribunal de Apelaciones que confirma la resolución del foro de instancia, inscrito en el mencio-nado Registro. De hecho, no podría ser de otra forma, ya que cualquier acción en pro de eliminar al peticionario del mencionado registro sería, hasta que no advenga final y firme la decisión de esta Curia, en violación a una resolución final de un tribunal con jurisdicción.
8 L.P.R.A. sec. 444 et seq.
Estrella, Monge v. Figueroa Guerra, 170 D.P.R. 644 (2007).
Íd.
Estrella, Monge v. Figueroa Guerra, supra.
Véase 8 L.P.R.A. sec. 450h.
5) Véase Pueblo v. Rivera Mojica, KLC2009-01591.
Véanse: Pueblo v. Battle Torres, KLCE2009-00181; Pueblo v. Pérez Flores, KLCE2010-00861.
4 L.P.R.A. sec. 536 et seq.
En realidad, esta no fue la primera ley que requirió tal tipo de registro en un estado de Estados Unidos. En 1990, el estado de Washington ya había aprobado el Community Protection Act. Wash. Rev. Code Ann. Sec. 4.24.550.
42 U.S.C. sec. 14071 (1994 y Supl. IV 1998).
El Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act realmente no obligaba a los estados a aprobar este tipo de ley, sino que advertía que aquellos que no las aprobaran perderían el 10% de la subvención federal para programas de justicia criminal otorgada según el Byrne Program.
M.E. Rivera Negrón, Legislación sobre los derechos de las víctimas, 44 (Núm. 1) Rev. Jur. U.I.P.R. 161, 182 (2010).
Exposición de Motivos de la Ley Núm. 266-2004. Véase, además, Art. 1 de la Ley Núm. 266, supra.
Exposición de Motivos de la Ley Núm. 266, supra.
Íd.
Esta ley también enmendó el Art. 8 de la Ley Núm. 175-1998, conocida como Ley del Banco de Datos de ADN de Puerto Rico.
Véase Exposición de Motivos de la Ley Núm. 243-2011.
Art. 2(1) de la Ley Núm. 266, según enmendada.
Art. 3(c) de la Ley Núm. 266, supra, según enmendada.
Este Art. 15 exceptúa de esta retroactividad los incisos (f) y (g) del Art. 4, pues señala que los mismos tendrán efecto prospectivo. Estos incisos expresan la prohibición que tienen las personas inscritas en el Registro de establecer su residen-cia a quinientos pies de una escuela o cuido de niños, y la obligación de la agencia concernida de notificar al ofensor sexual con relación a esa prohibición.
Estos incisos son el (f) y (g) del Art. 4 de la Ley Núm. 243, supra. No discutimos dichos artículos por no ser pertinentes a la controversia que nos ocupa.
Véase Moción de desestimación por academicidad del Procurador General, pág. 7.
33 L.P.R.A. sec. 4637.
Pueblo v. González, 165 D.P.R. 675 (2005).
Íd.
D. Nevares-Muñiz, Nuevo Código Penal de Puerto Rico, comentado, 5ta ed., San Juan, Inst, para el Desarrollo del Derecho, 2004-2005, pág. 10.
4 L.P.R.A. sec. 536b.
Exposición de Motivos de la Ley Núm. 266, supra.
Íd.
Íd. Véase 4 L.P.R.A. sec. 531.
Íd.
Exposición de Motivos de la Ley Núm. 243-2011, supra.
Nótese, además, que la propia Ley Núm. 266-2004, supra, contiene penas para las personas que infrinjan sus disposiciones. Así, la referida ley tipifica tal conducta como delito menos grave y le impone una pena de hasta seis meses de reclusión, o multa de hasta $5,000, o ambas penas, a discreción del Tribunal. Art. 11 de la Ley Núm. 266-2004 (4 L.P.R.A. sec. 536h).
Los Arts. 94, 95 y 96 del Código Penal, 33 L.P.R.A. secs. 4722, 4723 y 4724, encuentran su razón de ser en el hecho de que —como señalamos en el cuerpo de la Opinión— el Art. 91 se refiere a una medida de seguridad que conlleva reclusión, distinto a la diseñada por la Asamblea Legislativa mediante la creación del Registro de la Ley Núm. 266-2004. Esto es, la persona, a pesar de haber sido —por razón de incapacidad mental o trastorno mental transitorio— encontrada no culpable, se en-frenta a la posibilidad real de ser recluida en una institución para recibir tratamiento. En ese contexto, lo cierto es que ese ciudadano podría verse privado de su libertad hasta que ya no constituya una amenaza para la comunidad o para sí mismo. Claro está, y como señala también el Art. 92 (33 L.P.R.A. sec. 4720), el tiempo de esa reclusión nunca podrá ser superior a la pena aplicable al delito por el cual se le acusó.
A eso responden los requisitos que imponen los referidos artículos: a la necesi-dad de que, previo a la implantación y mientras el ciudadano esté sometido a la restricción de su libertad, el proceso en todo momento le provea las garantías míni-mas que aseguren la oportunidad de cuestionar si tal reclusión es realmente necesaria. Por eso la necesidad, previo a la implantación de la medida, de un informe siquiátrico o sicológico y un informe social (Art. 94); el derecho a que se celebre una vista para poder confrontar a los autores de dichos informes con sus conclusiones (Art. 95), y la necesidad de revisiones periódicas para evaluar si la reclusión im-puesta como medida de seguridad se puede dejar sin efecto o modificar (Art. 96). Por lo anterior, es claro que tales artículos no aplican en el caso de la medida de seguri-dad que constituye la inscripción en el Registro que establece la Ley Núm. 266-2004.
Smith v. Doe, 538 U.S. 84, 93 (2003).
La Exposición de Motivos de la Ley Núm. 243, supra, señala lo siguiente:
“Igualmente, se aclara que estarán obligados a registrarse las personas que participen en programas de desvío, tratamiento o rehabilitación de la Administra-ción de Corrección. Disponiéndose que una vez cumplidas las condiciones y archivado el caso por el Tribunal, la inscripción será eliminada del Registro”. (Enfasis suplido). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3050607/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARIZONA HEALTH CARE COST
CONTAINMENT SYSTEM; ANTHONY D.
RODGERS, in his official capacity as
Director of the Arizona Health
Care Cost Containment System,
Plaintiffs-Appellees,
v.
MARK B. MCCLELLAN, in his
official capacity as administrator
of the Centers for Medicare and
Medicaid Services; MIKE LEAVITT, No. 05-16386
in his official capacity as
Secretary of the US Department of D.C. No.
CV-03-02445-PGR
Health and Human Services; THE
CENTERS FOR MEDICARE AND OPINION
MEDICAID SERVICES; THOMAS A.
SCULLY, Administrator, in his
official capacity as administrator
of the Centers for Medicare and
Medicaid Services; DEPARTMENT OF
HEALTH & HUMAN SERVICES;
TOMMY G. THOMPSON, in his
official capacity as Secretary of
the US Department of Health and
Human Services,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
15641
15642 ARIZONA HEALTH CARE v. MCCLELLAN
Argued and Submitted
May 15, 2007—San Francisco, California
Filed December 3, 2007
Before: Diarmuid F. O’Scannlain and Sandra S. Ikuta,
Circuit Judges, and Leonard B. Sand,* Senior Judge.
Opinion by Judge Ikuta
*The Honorable Leonard B. Sand, Senior United States District Judge
for the Southern District of New York, sitting by designation.
ARIZONA HEALTH CARE v. MCCLELLAN 15645
COUNSEL
Jonathan H. Levy, Civil Division, U.S. Department of Justice,
Washington, D.C., for the defendants-appellants.
Charles A. Miller and Donald J. Ridings Jr., Covington &
Burling, Washington, D.C., for the plaintiffs-appellees.
OPINION
IKUTA, Circuit Judge:
This appeal requires us to resolve conflicting statutory
interpretations of § 402(e) of the Indian Health Care Improve-
ment Act, 42 U.S.C. § 1396d(b), which requires the federal
government to pay 100 percent of certain Medicaid costs for
services “which are received through an Indian Health Service
facility.”1 The Arizona Health Care Cost Containment System
1
42 U.S.C. § 1396d(b) states, in pertinent part:
Notwithstanding the first sentence of this section [explaining how
the “Federal medical assistance percentage,” the federal share of
Medicaid expenses, will be calculated for each state], the Federal
medical assistance percentage shall be 100 per centum with
respect to amounts expended as medical assistance for services
which are received through an Indian Health Service facility
whether operated by the Indian Health Service or by an Indian
tribe or tribal organization (as defined in section 1603 of Title
25).
15646 ARIZONA HEALTH CARE v. MCCLELLAN
(“Arizona”), the state entity that administers Arizona’s Med-
icaid program, interprets this language as requiring the federal
government to reimburse states for all health care services
provided to Medicaid-eligible Indians under referral agree-
ments between health care service providers and the Indian
Health Service (“IHS”). By contrast, the Health Care Financ-
ing Administration (“HCFA”),2 the federal entity that admin-
isters Medicaid, interprets this language as requiring the
federal government to reimburse states only for health care
services provided by “an IHS facility which offers, is respon-
sible for and bills Medicaid for the services provided.” The
district court held that Arizona’s interpretation was correct
and granted Arizona’s motion for summary judgment. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and now
reverse.
I
As part of its unique government-to-government relation-
ship with American Indian Tribes and Alaska Native corpora-
tions, the federal government provides health care services to
roughly 1.9 million American Indian and Alaska Native peo-
ple. See 25 U.S.C. § 1601; Lincoln v. Vigil, 508 U.S. 182, 185
(1993); IHS Fact Sheet (2007), http://info.ihs.gov/Files/
IHSFacts-Jan2007.doc (last visited November 7, 2007). Since
1955, IHS, now a federal agency within the Department of
Health and Human Services (“HHS”), has been responsible
for providing these services. From its inception, IHS had
sought to accomplish its objectives primarily by building and
staffing its own facilities on or near Indian communities. Am.
Indian Policy Review Comm’n, Report on Indian Health 94,
105 (Comm. Print 1976). Geographical, logistical, and finan-
cial limitations made it impossible for IHS to provide the full
2
Although the Health Care Financing Administration (“HCFA”) was
renamed the Centers for Medicare & Medicaid Services, 66 Fed. Reg.
35,437 (July 5, 2001), we will use the term HCFA, which was the name
of the federal agency during the time period at issue here.
ARIZONA HEALTH CARE v. MCCLELLAN 15647
range of medical services in this manner, and IHS routinely
entered into different types of agreements with other health
services providers to fill in gaps in IHS services. Id. at 105.
In 1965, the Medicaid program was signed into law. Med-
icaid, a joint federal and state medical welfare program, pro-
vides for state Medicaid agencies to reimburse health care
providers for the cost of covered services delivered to Medic-
aid beneficiaries. 42 U.S.C. §§ 1396, 1396a. The federal gov-
ernment then reimburses the states for all or part of those
expenditures. 42 U.S.C. §§ 1396b, 1396d(b). The rate at
which the federal government reimburses the states for Med-
icaid expenditures, called the “federal medical assistance per-
centage,” or “FMAP,” typically ranges from 50 to 83 percent.
See 42 U.S.C. § 1396d(b). The federal government recalcu-
lates the FMAP reimbursement rate annually based on each
state’s per capita income. See id. §§ 1396d(b), 1301(a)(8)(B).
Although Medicaid-eligible Indians were entitled to use non-
IHS service providers to the same extent as other citizens of
a state, the degree to which Indians actually benefitted from
the newly established Medicaid programs is “unclear.” Report
on Indian Health, supra, at 85.
In 1976, Congress found that many IHS facilities were “in-
adequate, outdated, inefficient, and undermanned,” and
enacted the Indian Health Care Improvement Act (“IHCIA”)
to “implement the Federal responsibility for the care and edu-
cation of the Indian people by improving the services and
facilities of Federal Indian health programs and encouraging
maximum participation of Indians in such programs.” IHCIA,
Pub. L. No. 94-437, 90 Stat. 1400 (1976). Title IV of the
IHCIA contained numerous provisions aimed at upgrading the
overall quality of IHS facilities. See IHCIA §§ 401-03.
Relevant here, § 402(a) of the IHCIA amended the Social
Security Act to permit IHS facilities to obtain Medicaid reim-
bursement for services provided to Medicaid-eligible Indians.
See IHCIA § 402(a), 42 U.S.C. § 1396j. As a result, IHS facil-
15648 ARIZONA HEALTH CARE v. MCCLELLAN
ities could receive reimbursement from Medicaid as well as
funding through direct Congressional appropriations. Because
states previously did not provide Medicaid funding for IHS
health care services, this enactment would have imposed an
additional burden on states’ Medicaid programs. To avoid this
result, Congress amended § 1905(b) of the Social Security
Act, 42 U.S.C. § 1396d(b), by inserting the following lan-
guage:
Notwithstanding the first sentence of this section
[explaining how the “federal medical assistance per-
centage” will be calculated for each state], the Fed-
eral medical assistance percentage shall be 100 per
centum with respect to amounts expended as medical
assistance for services which are received through
an Indian Health Service facility.
IHCIA § 402(e), 42 U.S.C. § 1396d(b) (emphasis added).
Immediately after the enactment of the IHCIA, and for the
next twenty years, HCFA interpreted this language as requir-
ing a FMAP reimbursement rate of 100 percent for health care
services provided by IHS for Medicaid-eligible Indians, when
IHS billed Medicaid directly for those services. HCFA did not
allow a FMAP reimbursement rate of 100 percent for health
care services provided by non-IHS providers, even when IHS
had entered into referral agreements with those providers.
HCFA’s interpretation of § 402(e) corresponded to the dif-
ferent types of agreements IHS had used to supplement its
services. In some cases, an IHS facility would offer a health
care service to its Indian patients, and provide the service by
purchasing it from a contractor (a non-IHS health service pro-
vider). After the enactment of the IHCIA, IHS billed Medic-
aid directly for these services. IHS also entered into referral
agreements with non-IHS providers. Under these agreements,
the non-IHS provider agreed to furnish medical services at a
rate no higher than the prevailing Medicare allowable rates to
ARIZONA HEALTH CARE v. MCCLELLAN 15649
Medicaid-eligible Indians referred by IHS. Reimbursement
Rates for Health Care Services Authorized Under the Indian
Health Service Contract Health Service Regulations, 51 Fed.
Reg. 23,540 (June 30, 1986). IHS did not bill Medicaid for
such services. Before 1997, Arizona neither received nor
claimed a FMAP reimbursement rate of 100 percent for ser-
vices provided to Medicaid-eligible Indians under these refer-
ral agreements.
In 1997, HCFA issued a memorandum to an associate
regional administrator in HCFA Region IX3 in response to
Arizona’s question whether non-emergency transportation
provided to Indians was eligible for a FMAP reimbursement
rate of 100 percent. The HCFA memo stated:
[W]e do not agree that non-emergency transportation
is a service provided “through an IHS facility.” Our
position on this issue is that in order for IHS services
to qualify for 100% FMAP, the service must be: (1)
provided by IHS, or a contractual agent of an IHS or
tribal facility, (2) considered as a “facility service”;
that is, a service that would be within the proper
scope of services which can be claimed by that facil-
ity, and (3) claimed by the IHS facility as a service
of that facility. These services are referred to in regu-
lation at 42 CFR 440.10 (“Inpatient hospital ser-
vices”) and 42 CFR 440.20 (“Outpatient hospital
services and rural health facility services”)[.]
For most facilities, services are furnished within the
physical confines of the facility. Satellite facilities
owned or leased, and operated by IHS or tribal 638
programs, are also considered to be within the physi-
cal confines of an IHS/tribal facility.4 Referred ser-
3
Currently, Region IX includes Arizona, California, Hawaii, Nevada,
and the Territories of American Samoa, Guam and the Commonwealth of
the Northern Mariana Islands.
4
Facilities owned or operated by tribes or tribal organizations under
agreements with IHS are known as “638” facilities after the public law
15650 ARIZONA HEALTH CARE v. MCCLELLAN
vices, provided through a contractual arrangement,
can also be considered provided “through an IHS
facility” and reimbursed at the 100% FMAP rate as
long as these are services that could be provided as
a “facility service”, as referenced by regulation
above. Any other type of services, such as non-
emergency transportation, are not considered to be
“facility services”, and therefore should be reim-
bursed at the normal State/Federal match rate.
Memorandum from the Acting Dir., Medicaid Bureau, to the
Assoc. Reg’l Adm’r, Div. of Medicaid, Region IX (May 15,
1997) (emphasis added).
Arizona interpreted the memorandum’s statement that a
FMAP reimbursement rate of 100 percent applied to
“[r]eferred services, provided through a contractual arrange-
ment” as extending to all health care services provided under
referral agreements between IHS and non-IHS service provid-
ers. As a result of this interpretation, Arizona developed a
procedure for claiming a FMAP reimbursement rate of 100
percent for services that met five criteria: (1) the recipient was
a Medicaid-eligible Indian who had chosen IHS as his or her
health plan as of the date of the service; (2) the service was
provided by a non-IHS provider; (3) the service was furnished
pursuant to an agreement between an IHS facility and the
non-IHS provider at the time the service was provided; (4) the
service was a “facility service,” under 42 C.F.R. § 440.10 or
§ 440.20;5 and (5) the date of the service was on or after May
15, 1997, the date of the non-emergency transportation mem-
orandum.
number of the Indian Self-Determination and Education Assistance Act of
1975, Pub. L. No. 93-638, 88 Stat. 2203.
5
42 C.F.R. § 440.10 (defining “inpatient hospital services”) and 42
C.F.R. § 440.20 (defining “outpatient hospital services and rural health
clinic services”) identify services that are reimbursable through FMAP for
purposes of Medicaid. See 42 U.S.C. § 1396d(a); 42 C.F.R. § 440.1.
ARIZONA HEALTH CARE v. MCCLELLAN 15651
Arizona made its first claim under the new procedure for
the quarter ending March 31, 1999. As a result of its new pro-
cedure, Arizona claimed an additional $1,838 of federal reim-
bursement, which HCFA allowed without deferral or
investigation. However, in late 1999, HCFA began to defer
action on Arizona’s reimbursement claims, and ultimately dis-
allowed Arizona’s subsequent claims to the extent they
exceeded the normal FMAP reimbursement rate.
Arizona appealed HCFA’s disallowance of approximately
$36 million of Arizona’s claims. The Departmental Appeals
Board (“DAB”)6 upheld HCFA’s disallowance in a 2001
administrative decision. In this decision, the DAB held that
the meaning of “received through an Indian Health Service
facility” was ambiguous, because it could mean “by means
of” or “in.” Following its long-standing procedures for resolv-
ing disputes over ambiguous statutory language, the DAB
held:
(1) HCFA’s reasonable and long-standing interpreta-
tion of the costs eligible for 100% FMAP was lim-
ited to those ‘received through’ an IHS facility
which offers, is responsible for and bills Medicaid
for the services provided; (2) Arizona was notified of
and long operated consistently with this interpreta-
tion; (3) HCFA did not change this policy in its
memorandum of May 1997; (4) Arizona did not rea-
sonably rely on an alternative interpretation; and (5)
the costs disallowed here were not eligible for 100%
FMAP rate under HCFA’s interpretation.
6
The DAB is a separate adjudicatory department within HHS that pro-
vides independent review of disputed decisions for many HHS programs.
The DAB generally issues HHS’s final decision, which may then be
appealed to a federal court. Among its many functions, the DAB hears dis-
putes pertaining to HCFA’s (now CMS’s) disallowances of FMAP reim-
bursement. See 42 U.S.C. § 1316(d); 42 C.F.R. § 430.42(b).
15652 ARIZONA HEALTH CARE v. MCCLELLAN
Accordingly, the DAB upheld all the disallowances at issue.7
Arizona brought suit in the District of Arizona to challenge
the DAB’s decision. Ruling on cross-motions for summary
judgment and applying the framework of Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), the district court ruled in favor of Arizona. Noting its
agreement with the only two federal courts that had then
addressed the issue, North Dakota ex rel. Olson v. Ctrs. for
Medicare & Medicaid Servs., 286 F. Supp. 2d 1080 (D.N.D.
2003), rev’d, 403 F.3d 537 (8th Cir. 2005), and Ellenbecker
v. Ctrs. for Medicare & Medicaid Servs., 335 F. Supp. 2d 999
(D.S.D. 2003), rev’d, 403 F.3d 537 (8th Cir. 2005), the dis-
trict court reversed the DAB, concluding that “as a matter of
law . . . the language of [§ 402(e)] at issue is clear and unam-
biguous and . . . the phrase ‘received through’ is properly
interpreted as pertaining [to] services that are provided as a
result of a referral from an IHS facility by private health care
providers who bill the state Medicaid program for those ser-
vices.”8 The district court determined that HCFA’s interpreta-
tion (to which the DAB had deferred) was unreasonable.
Therefore, the district court granted Arizona’s motion for
summary judgment, which HCFA now appeals.
7
The DAB subsequently issued a second decision that incorporated the
first decision and upheld the remaining disallowance.
8
After the district court rendered its decision, the Eighth Circuit
reversed the decisions of the South Dakota and North Dakota district
courts. North Dakota ex rel. Olson v. CMS, 403 F.3d 537, 540 (8th Cir.
2005). The Eighth Circuit ruled that the language of § 402(e) was unclear,
but the legislative history “is clear and consistent” and established that
Congress’s use of “received through” rather than “provided in” did not
cover services provided by non-IHS providers under a referral agreement
such as those at issue in this appeal. Id. Therefore, the Eighth Circuit con-
cluded that a FMAP reimbursement rate of 100 percent did not apply to
services provided by non-IHS health care providers under a referral con-
tract with IHS. Id.
ARIZONA HEALTH CARE v. MCCLELLAN 15653
II
[1] We review the district court’s grant of Arizona’s motion
for summary judgment de novo. Balint v. Carson City, 180
F.3d 1047, 1050 (9th Cir. 1999). There is no dispute that the
DAB’s decision is the product of formal adjudication that
merits Chevron deference. See United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001). Therefore, we follow a two-step
process in reviewing the DAB’s interpretation of federal law.
Chevron, 467 U.S. at 842-43. First, “if a court determines that
Congress has directly spoken to the precise question at issue,
then that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.” United States v. Haggar Apparel Co.,
526 U.S. 380, 392 (1999) (internal citations and quotations
omitted). Second, if “the agency’s statutory interpretation fills
a gap or defines a term in a way that is reasonable in light of
the legislature’s revealed design, we give [that] judgment con-
trolling weight.” Id. (internal citations and quotations omit-
ted).
A
We begin with the plain language of the statute. Gwaltney
of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.
49, 56 (1987). The district court focused on the meaning of
the word “through” in the phrase “services which are received
through an Indian Health Service facility,” in § 402(e). The
word “through” is not defined elsewhere in the statute or by
regulation. Accordingly, we consider whether there is an
unambiguous common sense meaning of the word that
resolves the question whether this phrase includes services
provided by non-IHS providers via a referral agreement with
IHS, as Arizona would have it, or is limited to services “pro-
vided by a particular IHS facility within its scope of services”
and billed by that facility to Medicaid, as the DAB held. See
Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1061 (9th Cir. 2003) (en banc) (when no statutory or
15654 ARIZONA HEALTH CARE v. MCCLELLAN
regulatory provision defines the meaning of a term, we con-
sider the common sense meaning of the words, including
review of dictionaries), amended by 360 F.3d 1374 (9th Cir.
2004) (en banc).
[2] After referring to dictionaries that were current when
Congress was drafting this legislation, we are unable to
resolve this ambiguity. As noted by the DAB, the phrase
“through” can mean “by means of” and “by the help or
agency of,” Webster’s Third New International Dictionary
2384 (1971), which supports Arizona’s interpretation, as well
as “in” and “within,” which supports HCFA’s interpretation.
Black’s Law Dictionary 1652 (4th ed. 1968).9
In construing specific words in a statute, we must also look
to the “language and design of the statute as a whole,” K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), and read the
specific words “with a view to their place in the overall statu-
tory scheme.” Wilderness Soc’y, 353 F.3d at 1060 (quoting
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809
(1989)). Arizona argues that because Congress used the
phrases “provided in” or “offered by” in various Medicaid
provisions, it intended the phrase “received through” in
§ 402(e) to mean something different. For example, the
IHCIA provides that states must be reimbursed under Medic-
aid for “services provided in [Indian Health] Service facili-
ties,” IHCIA § 402(a), (b). In addition, various subsections
within 42 U.S.C. § 1396d restrict Medicaid coverage to ser-
vices that are provided “by” or “in” a facility. See, e.g., id.
§ 1396d(a)(13) (“medical assistance” includes physician-
recommended medical services “provided in a facility”);
§ 1396d(a)(2) (medical assistance includes ambulatory ser-
vices “offered by a rural health clinic”); § 1396d(t)(4) (cover-
ing laboratory services “customarily provided by or through,
9
Black’s Law Dictionary is one source this court has used to determine
the “common sense meaning” of statutory language. See, e.g., Wilderness
Soc’y, 353 F.3d at 1061.
ARIZONA HEALTH CARE v. MCCLELLAN 15655
a general practitioner, family medicine physician, internal
medicine physician, obstetrician/gynecologist, or pediatri-
cian”). Because a court must presume that Congress intended
a different meaning when it uses different words in connec-
tion with the same subject, see SEC v. McCarthy, 322 F.3d
650, 656 (9th Cir. 2003), Arizona contends it is clear that
Congress did not intend to limit the FMAP reimbursement
rate of 100 percent to services provided in or offered by an
IHS facility.
[3] We agree that Congress has used a variety of expres-
sions to describe the relationship between Medicaid-covered
medical services and the service provider, and has variously
limited Medicaid coverage to services provided in, by, or
through a particular type of provider. However, this conclu-
sion does not explain what Congress meant by the language
in § 402(e), providing a FMAP reimbursement rate of 100
percent for services “received through an IHS facility.” Even
if we agreed that Congress did not intend the FMAP reim-
bursement rate of 100 percent to be limited to services
received by patients within the boundaries of an IHS facility,
we note that HCFA does not interpret § 402(e) as imposing
this limitation. Rather, HCFA interpreted the FMAP reim-
bursement rate of 100 percent as applying to services pro-
vided by certain non-IHS contractors so long as the services
are billed through the IHS facility. Despite Arizona’s efforts
to distinguish “received through” from other similar expres-
sions, Congress’s use of the phrase “received through” does
not answer the question whether the FMAP reimbursement
rate of 100 percent applies to services provided by a non-IHS
health services provider under a referral agreement with an
IHS facility. To this extent, we agree with the Eighth Circuit,
that “even if ‘received through’ has a broader connotation
than ‘provided in,’ the statute does not specify how far
‘received through’ should extend. Thus the statutory language
is susceptible to multiple interpretations and does little to
resolve the present controversy.” North Dakota ex rel. Olson
15656 ARIZONA HEALTH CARE v. MCCLELLAN
v. Ctrs. for Medicare & Medicaid Servs., 403 F.3d 537, 540
(8th Cir. 2005).
[4] Moreover, reading “received through an IHS facility” in
the context of the IHCIA as a whole weighs in favor of
HCFA’s more limited interpretation. HCFA argues that Con-
gress linked the FMAP reimbursement rate of 100 percent to
IHS facilities and their services, rather than to other health
service providers. In other words, the purpose of Title IV of
the IHCIA was to benefit IHS facilities by enabling them to
receive Medicaid reimbursement, which must be placed in a
special fund and used “exclusively for the purpose of making
any improvements in the facilities of such Service which may
be necessary to achieve compliance with the applicable condi-
tions and requirements of [Title XIX of the Social Security
Act].” See IHCIA § 402(c), 25 U.S.C. § 1642(a). Therefore,
the statutory structure better supports interpreting “received
through an IHS facility” to ensure that the FMAP reimburse-
ment benefits the IHS facility. Interpreting § 402(e) as apply-
ing the FMAP reimbursement rate of 100 percent only to
services paid for (and billed to Medicaid by) IHS furthers this
goal better than the more expansive Arizona interpretation.10
B
At the next step in the Chevron analysis, the parties argue
that any ambiguity in § 402(e) is clarified by legislative his-
tory. See United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.
10
HCFA also argues that Alaska Department of Health & Social Ser-
vices v. Centers for Medicare & Medicaid Services, 424 F.3d 931 (9th Cir.
2005), defined the word “through” when it characterized the FMAP reim-
bursement rate of 100 percent as applying to “state expenditures on behalf
of eligible Native Americans at IHS facilities.” Id. at 935 n.1 (emphasis
added). However, this footnote merely provides background about the
funding of IHS facilities, and does not purport to address the scope of
§ 402(e). When “a statement is made casually and without analysis,” it
does not constitute a precedential decision of this court on an undecided
issue. United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001).
ARIZONA HEALTH CARE v. MCCLELLAN 15657
1999). We disagree, and part company with the Eighth Circuit
in its conclusion to that effect. HCFA argues, and the Eighth
Circuit held, that Congress intended § 402(e)’s FMAP reim-
bursement rate of 100 percent to apply only to services pro-
vided “in” a facility, because various congressional committee
reports described that rate as being limited to services pro-
vided “in” IHS facilities. See H.R. Rep. No. 94-1026, pt. I, at
108, reprinted in 1976 U.S.C.C.A.N. 2652, 2746 (FMAP
reimbursement rate of 100 percent “for services provided to
any Indian in an IHS facility”); id., pt. III, at 7, reprinted in
1976 U.S.C.C.A.N. 2652, 2782 (“services provided to Indians
in IHS facilities”); id., pt. III, at 21, reprinted in 1976
U.S.C.C.A.N. 2652, 2796 (“Indians receiving services in IHS
facilities”). However, the change in terminology from com-
mittee reports to Congressional enactment equally supports
the opposite conclusion, namely, that in enacting § 402(e),
Congress decided not to use the narrower phrase “provided
in.” Instead, Congress opted for a broader scope of reimburse-
ment when it chose to use the phrase “received through,” the
words that actually appear in the statute.
Arizona relies on legislative history and the structure of the
IHCIA to argue that Congress intended the FMAP reimburse-
ment rate of 100 percent to apply to all referred services. Title
V of the IHCIA specifically addresses the health care needs
of urban Indians, who do not live on reservations and do not
necessarily rely on the IHS system for health care. See IHCIA
§§ 501-08, 25 U.S.C. §§ 1651-58. Arizona points to commit-
tee report language indicating that Congress intended Title IV
of the IHCIA (which includes the statutory language at issue)
to focus on the plight of Indians who do live on or near reser-
vations, and primarily rely on the IHS system for health care.
See, e.g., H.R. Rep. No. 94-1026, pt. I, at 16-18, 107, 114,
reprinted in 1976 U.S.C.C.A.N. 2652, 2655-57, 2745, 2752.
Arizona argues that because improving the health status of
reservation Indians was the principal concern of Title IV,
Congress intended the FMAP reimbursement rate of 100 per-
cent to apply to all services provided in the IHS system,
15658 ARIZONA HEALTH CARE v. MCCLELLAN
including all referred services. By contrast, health services
outside of the IHS system, such as those used by some urban
Indians, would not be subject to the FMAP reimbursement
rate of 100 percent. According to Arizona, “Congress’s deci-
sion . . . thus reflected a well understood distinction between
these two groups of Native Americans at the time the IHCIA
was enacted.”
We are not persuaded. First, the statutory sections within
Title IV do not distinguish between urban Indians and reser-
vation Indians. Also, the legislative history does not establish
that Congress sought to assist reservation Indians by ensuring
a FMAP reimbursement rate of 100 percent for the broadest
possible range of IHS health care services, such as those res-
ervation Indians receive from a non-IHS health care provider
with a referral agreement. Finally, the higher FMAP reim-
bursement rate does not assist Indians, whether living on res-
ervations or in cities; rather, it merely adjusts the financial
responsibility for health care between the state and federal
fiscs. Neither the distinction between reservation and urban
Indians, nor Arizona’s purported principal purpose of Title IV
resolves the ambiguity in § 402(e).
The parties also reach opposite conclusions based on lan-
guage in a House Report indicating that the “Committee [on
Interior and Insular Affairs] took the view that it would be
unfair and inequitable to burden a State Medicaid program
with costs which normally would have been borne by [IHS].”
H.R. Rep. No. 94-1026, pt. I, at 108, reprinted in 1976
U.S.C.C.A.N. 2652, 2746. The House Report suggests that
Congress included § 402(e) in order to eliminate such a bur-
den.
Both parties draw support from this legislative language.
HCFA argues that in light of the payor of last resort rule,
which has been in place since 1956,11 the Medicaid program
11
See 55 Fed. Reg. 4606, 4608 (Feb. 9, 1990). The rule is currently
located at 42 C.F.R. § 136.61. Under the “payor of last resort” rule, IHS
does not pay if there is another source of health care funds available such
as Medicaid. 42 C.F.R. § 136.61.
ARIZONA HEALTH CARE v. MCCLELLAN 15659
would have been responsible for the costs of services pro-
vided by non-IHS providers to any Medicaid-eligible Indians.
Because the standard FMAP reimbursement rate would have
applied to such costs before Congress enacted the IHCIA,
HCFA argues that its interpretation of § 402(e) does not shift
any costs previously borne by IHS to state governments.12
Arizona, on the other hand, argues that as a practical mat-
ter, IHS generally paid for services provided by non-IHS pro-
viders under its various agreements with IHS. The same
House Report mentions the Senate Finance Committee’s
acknowledgment that “with respect to matters relating to Indi-
ans, the Federal Government has traditionally assumed major
responsibility.” H.R. Rep. No. 94-1026, pt. I, at 108, reprinted
in 1976 U.S.C.C.A.N. 2652, 2746; see also id., pt. I, at 14,
reprinted in 1976 U.S.C.C.A.N. 2652, 2653-54. Arizona also
relies on language indicating that many otherwise-eligible
Indians did not enroll or participate in Medicaid because of
geographical constraints and reliance on IHS health care, id.,
pt. I, at 107, reprinted in 1976 U.S.C.C.A.N. 2652, 2745, but
the report states that predicting this number would be “nearly
impossible.” Id., pt. I., at 26, reprinted in 1976 U.S.C.C.A.N.
2652, 2665-66.
[5] Based on our review of the record, neither party has
established whether the state or IHS paid for services pro-
vided by non-IHS service providers under referral agreements
before Congress passed the IHCIA. Nor does the legislative
history suggest that in 1976, Congress knew that IHS had this
burden, and thus intended for a FMAP reimbursement rate of
100 percent to apply to such expenditures. In the absence of
12
Arizona argues that HCFA’s burden-shifting argument is not applica-
ble to Arizona because it was the only state not a member of the Medicaid
program in 1976 when the IHCIA was enacted. However, for purposes of
interpreting the meaning of a generally applicable federal statute, Arizo-
na’s specific status under Medicaid is irrelevant.
15660 ARIZONA HEALTH CARE v. MCCLELLAN
such evidence, the legislative history is of no assistance in
clarifying the meaning of § 402(e).13
C
[6] Because the statutory language is ambiguous, and is not
clarified by the usual interpretive aids, we must turn to the
DAB’s interpretation of § 402(e) and determine whether it is
based on a “permissible construction of the statute.” Chevron,
467 U.S. at 843. If a statute’s language can reasonably be con-
strued in more than one way, a court “may not substitute its
own construction” of the statute “for a reasonable interpreta-
tion made by” the agency that Congress has entrusted to
implement the legislation. United Food & Commercial Work-
ers Union v. NLRB, Local 1036, 307 F.3d 760, 767 (9th Cir.
2002) (en banc) (quoting Chevron, 467 U.S. at 844). An agen-
cy’s interpretation of a statute is permissible unless it is “arbi-
trary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 844.
[7] Here, the DAB interpreted “received through” in
§ 402(e) by deferring to HCFA’s long-standing interpretation
that the costs eligible for a FMAP reimbursement rate of 100
percent were “limited to those ‘received through’ an IHS
facility which offers, is responsible for and bills Medicaid for
the services provided.” This interpretation is not “manifestly
13
Arizona also asks us to consider a bill introduced in 1973 but never
enacted, which provided that states were entitled to a FMAP reimburse-
ment rate of 100 percent for medical costs of individuals “who . . . resided
on or adjacent to a Federal Indian reservation.” H.R. 3153, 93d Cong.
§ 174(a), 119 Cong. Rec. 38350, 38367 (1973). Arizona argues that Con-
gress intended the “received through” language in § 402(e) to mean the
same thing as “on or adjacent to.” The Supreme Court has considered pre-
decessor bills when the operative language of the original bill was carried
forward into the enacted legislation and the legislative history of the
enacted legislation referred to the older bill. See United States v. Enmons,
410 U.S. 396, 405 n.14 (1973). In this case, however, the enacted legisla-
tion makes no reference to the 1973 bill, which thus is irrelevant.
ARIZONA HEALTH CARE v. MCCLELLAN 15661
contrary” to § 402(e), Chevron, 467 U.S. at 844, but rather is
consistent with the statutory language. Under the DAB’s
interpretation, the FMAP reimbursement rate of 100 percent
is not limited to costs incurred solely within the boundaries of
an IHS facility, but would cover the costs for some services
received at a non-IHS facility, in those cases where IHS has
taken responsibility for providing that service to its Indian
patient and actually bills Medicaid for that service. This inter-
pretation is consistent with and gives effect to the statutory
language used by Congress. Moreover, HCFA adopted this
interpretation contemporaneously with the enactment of the
IHCIA, and has adhered to it for over 20 years. We should
“normally accord particular deference to an agency interpreta-
tion of ‘longstanding’ duration.” Barnhart v. Walton, 535
U.S. 212, 220 (2002). Because the DAB’s interpretation of
§ 402(e) is not arbitrary, capricious, or manifestly contrary to
the statute, we must defer to it.
Arizona argues that the DAB’s interpretation is unreason-
able both because it conflicts with HCFA’s 1997 memoran-
dum and because it is bad policy. HCFA argues that its 1997
memorandum is consistent with its long-standing interpreta-
tion of § 402(e) and is good policy. We need not resolve this
dispute, because “[i]nterpretations such as those in opinion
letters — like interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which
lack the force of law — do not warrant Chevron-style defer-
ence.” Christensen v. Harris County, 529 U.S. 576, 587
(2000); see also City of Los Angeles v. U.S. Dep’t of Com-
merce, 307 F.3d 859, 874 (9th Cir. 2002). Nor should we
make policy decisions for the agency:
When a challenge to an agency construction of a
statutory provision, fairly conceptualized, really cen-
ters on the wisdom of the agency’s policy, rather
than whether it is a reasonable choice within a gap
left open by Congress, the challenge must fail. In
such a case, federal judges — who have no constitu-
15662 ARIZONA HEALTH CARE v. MCCLELLAN
ency — have a duty to respect legitimate policy
choices made by those who do.
Chevron, 467 U.S. at 866.
III
The DAB’s interpretation of § 402(e) is a permissible con-
struction of an ambiguous statute. We therefore defer to the
DAB’s interpretation that the costs eligible for a FMAP reim-
bursement rate of 100 percent are “limited to those ‘received
through’ an IHS facility which offers, is responsible for and
bills Medicaid for the services provided.” The district court
erred in interpreting the phrase “received through” to mean
“pertaining [to] services that are provided as a result of a
referral from an IHS facility by private health care providers
who bill the state Medicaid program for those services.” We
therefore reverse the district court’s grant of Arizona’s motion
for summary judgment, and remand for proceedings consis-
tent with this ruling.
REVERSED and REMANDED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050609/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ACTION APARTMENT ASSOCIATION,
INC., a California corporation;
MATHEW MILLEN,
No. 05-56533
Plaintiffs-Appellants,
v. D.C. No.
CV-04-10343-AHM
SANTA MONICA RENT CONTROL
OPINION
BOARD, a municipal entity; MARY
ANN YURKONIS,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
June 18, 2007—San Francisco, California
Filed December 3, 2007
Before: Sidney R. Thomas, Raymond C. Fisher, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Thomas
15615
15618 ACTION APARTMENT ASS’N v. SANTA MONICA
COUNSEL
Robert J. Franklin (argued) and Rosario Perry, Santa Monica,
California, attorneys for Plaintiffs-Appellants Action Apart-
ment Association, Inc., and Mathew Millen.
ACTION APARTMENT ASS’N v. SANTA MONICA 15619
David Pettit and Michael Roth (argued), Los Angeles, Cali-
fornia; and David Daniels and Michaelyn Jones, Santa Mon-
ica, California, attorneys for Defendants-Appellees, Santa
Monica Rent Control Board and Mary Ann Yurkonis.
OPINION
THOMAS, Circuit Judge:
In this appeal, we are presented with a claim that Santa
Monica’s rent control ordinance is unconstitutional under
both the “public use” component of the Fifth Amendment’s
Takings Clause and the substantive component of the Four-
teenth Amendment’s Due Process Clause. We conclude that
the Fifth Amendment claims are not viable, that the facial
Fourteenth Amendment claim is time-barred, and that the as-
applied Fourteenth Amendment claim is unripe. We therefore
affirm the judgment of the district court, dismissing the com-
plaint.
I
In 1979, the people of Santa Monica, California, enacted a
rent control ordinance by popular referendum. In 1991, we
upheld that ordinance against a due process challenge and a
takings challenge. Schnuck v. City of Santa Monica, 935 F.2d
171, 172 (9th Cir. 1991). We held that Santa Monica’s desire
to control rapidly rising rents and to cure housing shortages
constituted a legitimate governmental purpose, and we held
that the 1979 rent control ordinance was a rational means of
accomplishing that purpose.
The ordinance has remained in effect continuously since
1979, but the Santa Monica Rent Control Board (“the Board”)
has amended its provisions on three occasions, twice prior to
2002 and once in 2002. Among the 2002 amendments, the
15620 ACTION APARTMENT ASS’N v. SANTA MONICA
Board enacted some new provisions, including, most signifi-
cantly, provisions that make it harder for landlords to evict
their tenants.
Action Apartment Association (“Action”), an association of
landlords, and Matthew Millen (“Millen”), an individual land-
lord, filed suit under 42 U.S.C. § 1983 exactly two years after
the effective date of the 2002 amendments. In their complaint,
Action and Millen (collectively, “the Landlords”) alleged that
the rent control ordinance violates the Fifth Amendment’s
Just Compensation Clause, the Fifth Amendment’s Public Use
Clause, and the Fourteenth Amendment’s Substantive Due
Process Clause.
Acknowledging that Schnuck is binding, the Landlords do
not contend that rent control is unrelated to any conceivable
public purpose. Rather, they contend that the Board’s 2002
decision to reenact rent control with only minor alterations
was an arbitrary and irrational response to the many problems
that have arisen and persisted since the ordinance went into
effect in 1979. Specifically, the Landlords contend that no
rational legislator could have expected the more stringent
eviction requirements to remedy Santa Monica’s housing dif-
ficulties. They also contend that the only rational solution to
the identified housing problems would be to implement a
means test, by which rent ceilings would be available only to
poor tenants.
The district court dismissed the complaint, holding that all
Fifth Amendment claims were premature and that all substan-
tive due process claims were preempted by the Fifth Amend-
ment. The Landlords appeal the public use claims and the
substantive due process claims. They do not appeal the district
court’s dismissal of their just compensation claims.
II
Because we conclude that the Plaintiffs failed to distinguish
this court’s decision in Schnuck, we affirm the district court’s
dismissal of the plaintiffs’ public use claims.
ACTION APARTMENT ASS’N v. SANTA MONICA 15621
[1] The Public Use Clause generally holds that “one per-
son’s property may not be taken for the benefit of another pri-
vate person without justifying public purpose, even though
compensation be paid.” Thompson v. Consolidated Gas Utili-
ties Corp., 300 U.S. 55, 80, 57 S. Ct. 364, 376 (1937). As the
Supreme Court made clear in Kelo v. City of New London,
Connecticut, 545 U.S. 469, 125 S. Ct. 2655 (2005), this
requirement is not a stringent one. Indeed, Kelo specifically
noted that the Fifth Amendment provides “legislatures broad
latitude in determining what public needs justify the use of the
takings power.” Id. at 483. Under that flexible and deferential
standard, there can be little doubt that Santa Monica’s desire
to control rising rents and to remedy housing shortages consti-
tutes a legitimate public purpose. In fact, we have already so
held. Schnuck, 935 F.2d at 176.
Recognizing that Schnuck is binding, the Landlords do not
ask us to hold that the rent control ordinance is unrelated to
a public purpose. In fact, they fully concede that the ordinance
and its amendments intend to serve a legitimate public need.
The Landlords’ only Fifth Amendment argument is that the
2002 amendments to the rent control ordinance are not ratio-
nally related to the purpose they intend to serve.
[2] In construing this argument as a Public Use Clause
claim, the Landlords rest primarily on the Supreme Court’s
opinion in Hawaii Housing Authority v. Midkiff, 467 U.S.
229, 104 S.Ct. 2321 (1984). In that case, the Court held that
a regulatory taking would satisfy the public use clause if it
was “rationally related to a conceivable public purpose.” Id.
at 241. The Court then conducted a two-step inquiry to deter-
mine whether the regulatory taking at issue was constitu-
tional. The first question, of course, was whether the
legislature’s purpose constituted a “conceivable public pur-
pose.” Then, after determining that the legislature’s purpose
was permissible, the Court asked as a subsequent test of con-
stitutionality whether the legislature’s specific approach was
rational. See id. at 241-42. Action and Millen focus exclu-
15622 ACTION APARTMENT ASS’N v. SANTA MONICA
sively on this second prong of the Midkiff test, arguing only
that the 2002 re-enactment and amendments take an irrational
approach to solving Santa Monica’s housing problems.
[3] This court has confronted such claims before. In Rich-
ardson v. City and County of Honolulu, 124 F.3d 1150 (9th
Cir. 1997), the plaintiffs challenged a Honolulu condominium
conversion law, similar to the state law upheld by the
Supreme Court in Midkiff. The plaintiffs argued that although
the state law may have been rationally related to a public pur-
pose when passed, subsequent increases in the price of hous-
ing subject to the law (at a rate greater than increases in
unregulated housing) demonstrated that a conversion law
could no longer be considered a rational solution to Hawaii’s
housing problems. Id. at 1159. The court rejected the argu-
ment, holding that deference to a legislature’s public use
determination is required “unless the use involves an ‘impos-
sibility’ or is ‘palpably without reasonable foundation.’ ” Id.
at 1156 (quoting Midkiff, 467 U.S. at 240-41). Under Midkiff,
“whether the statute actually succeeds is irrelevant.” Id. at
1159 (emphasis added). The court concluded that despite how
poorly the state law may have performed, the city could have
rationally believed that prices would have been even worse
had the law not been in effect. Id. at 1159-60.
[4] The Landlords’ “public use” claims are similar to the
claims this court rejected in Richardson. Even assuming that
the Landlords’ allegations concerning the effects of the Santa
Monica rent control scheme are true, that would not demon-
strate that the city’s re-enactment of the rent control statute
was irrational. This court has already determined that
“[c]ontrolling rents to a reasonable level and limiting evic-
tions substantially alleviate hardships to Santa Monica ten-
ants.” Schnuck, 935 F.2d at 175. “That rent control may
unduly disadvantage others, or that it may exert adverse long-
term effects on the housing market, are matters for political
argument and resolution; they do not affect the constitutional-
ity of the Rent Control Law.” Id. The same reasoning holds
ACTION APARTMENT ASS’N v. SANTA MONICA 15623
true today. As in Schnuck, we decline to second-guess Santa
Monica’s chosen means of implementing its indisputably
legitimate goals. See Kelo, 545 U.S. at 488 (“ ‘[E]mpirical
debates over the wisdom of takings . . . are not to be carried
out in the federal courts’ ”) (quoting Midkiff, 467 U.S. at 242).
[5] The 2002 amendments to the Santa Monica rent control
law do not change this analysis. The amendments merely
tweak the rent control scheme enacted in 1979. We fail to see
how these minor changes could alter this court’s determina-
tion in Schnuck that the Santa Monica rent control law is
rationally related to a legitimate purpose. We therefore hold
that there was a valid public purpose for the amendments to
the rent control law, and on that basis, affirm the district
court’s dismissal of claims three and five of the complaint.
III
We also affirm the district court’s dismissal of the Land-
lords’ substantive due process claims, but we again affirm on
different grounds than the district court stated. Although in
light of recent Circuit authority we must disagree with the dis-
trict court’s conclusion that the Fifth Amendment preempts
the Landlords’ substantive due process claims, we conclude
that Action’s facial claim is time-barred and that Millen’s as-
applied claim is unripe.
A
[6] This court previously had held that the Fifth Amend-
ment preempts certain substantive due process challenges to
land use regulations. Armendariz v. Penman, 75 F.3d 1311,
1321-24 (9th Cir. 1996). But we recently recognized that the
Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528, 125 S. Ct. 2074 (2005), signaled that substan-
tive due process can be an appropriate vehicle to challenge the
rationality of land use regulations. Crown Point Dev., Inc. v.
Sun Valley, No. 06-35189, 2007 WL 3197049 (9th Cir. Nov.
15624 ACTION APARTMENT ASS’N v. SANTA MONICA
1, 2007). Thus, as an initial matter, we conclude that the
Landlords’ substantive due process claims are not preempted
and that they are cognizable.
The Supreme Court has long held that certain substantive
due process claims might be precluded if the same claims
could be decided under an “explicit textual source of constitu-
tional protection” rather than under the “generalized notion of
‘substantive due process . . . .’ ” Graham v. Connor, 490 U.S.
386, 395 (1989). In other words, under the Graham rule, a
substantive due process claim will be preempted if the
asserted substantive right can be vindicated under a different
—and more precise—constitutional rubric.
Although the Supreme Court has never cited or applied this
preemption rule outside the context of criminal procedural
rights, this court had explicitly held that the rule applied to the
Public Use Clause. In Armendariz, we cited Graham to hold
that litigants may not state their claims as substantive due pro-
cess claims if the governmental action they challenge is a tak-
ing of property for private rather than public use. 75 F.3d at
1321-24.
Relying on our construction of this rule in Squaw Valley
Development Co. v. Goldberg, 375 F.3d 936, 949-50 (9th Cir.
2004), the Board here argues that the public use clause pro-
vides a preemptive textual source of constitutional protection
against the governmental action that the Landlords challenge.
Indeed, the Board cites Squaw Valley for the broad proposi-
tion that, under Armendariz and Graham, no substantive due
process claim will survive if it is based on a deprivation of
real property.
To the extent that Squaw Valley can be read to support the
Board’s expansive understanding of Armendariz, the Supreme
Court’s decision in Lingle effectively overruled that portion of
the Squaw Valley opinion. See Crown Point, 2007 WL
3197049, at *4 (citing Miller v. Gammie, 335 F.3d 889, 993
ACTION APARTMENT ASS’N v. SANTA MONICA 15625
(9th Cir. 2003) (en banc) (holding that a three-judge panel
should declare a prior opinion effectively overruled if the
prior opinion is clearly irreconcilable with intervening
Supreme Court authority)). After Lingle, “it is no longer pos-
sible . . . to read Armendariz as imposing a blanket obstacle
to all substantive due process challenges to land use regula-
tions.” Id.
In Squaw Valley, we noted that a substantive due process
challenge brought “in the context of regulating use of real
property” might not be “viable in this circuit.” 375 F.3d at
950. The sole basis for that skepticism was the Fifth Amend-
ment’s preemptive effect. The Squaw Valley opinion traced a
line of cases that started with and followed from Armendariz,
and the Squaw Valley opinion indicated that those cases cre-
ated a “blanket prohibition” of any substantive due process
claim “based on a deprivation of real property.” Id. at 949,
950 n.7. The court then rejected the specific substantive due
process claim at issue in Squaw Valley on the ground that the
claim could be stated as a takings claim—that is, as a chal-
lenge to the regulation’s ability “ ‘substantially [to] advance
legitimate state interests.’ ” Id. at 950 (quoting Macri v. King
County, 126 F.3d 1125, 1129 (9th Cir. 1997)).
[7] As we recently recognized, that specific logic cannot
survive the Supreme Court’s decision in Lingle. Crown Point,
2007 WL 3197049, at *4. In Lingle, the Court specifically
held that an arbitrary and irrational deprivation of real prop-
erty, although it would no longer constitute a taking, might be
“so arbitrary or irrational that it runs afoul of the Due Process
Clause.” 544 U.S. at 542. Given that holding, it must be true
that the Armendariz line of cases can no longer be understood
to create a “blanket prohibition” of all property-related sub-
stantive due process claims. Squaw Valley, 375 F.3d at 949.
After Lingle, “the Fifth Amendment does not invariably pre-
empt a claim that land use action lacks any substantial relation
to the public health, safety, or general welfare,” Crown Point,
15626 ACTION APARTMENT ASS’N v. SANTA MONICA
2007 WL 3197049, at *4, regardless of anything Squaw Val-
ley said to the contrary.
[8] We see no difficulty in recognizing the alleged depriva-
tion of rights in real property as a proper subject of substan-
tive due process analysis. We have long held that a
substantive due process claim “must, as a threshold matter,
show a government deprivation of life, liberty, or property.”
Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.
1998). In Squaw Valley, we specifically reaffirmed the princi-
ple that landowners have “a constitutionally protected prop-
erty interest” in their “right to devote [their] land to any
legitimate use.” 375 F.3d at 949 (internal quotation marks
omitted) (citing Harris v. County of Riverside, 904 F.2d 497,
503 (9th Cir. 1990)). An arbitrary deprivation of that right,
thus, may give rise to a viable substantive due process claim
in any case in which the Takings Clause does not provide a
preclusive cause of action.1
[9] The Landlords do not assert that the government has
“taken” their property within the meaning of the Fifth
Amendment. They do, however, assert that the provisions of
the rent control ordinance neither serve nor are “rationally
related to any legitimate government purpose,” and therefore
1
In another recent opinion, we explained the distinction between sub-
stantive due process and Takings Clause claims:
“[The Takings Clause] ‘is designed not to limit the governmental
interference with property rights per se, but rather to secure com-
pensation in the event of otherwise proper interference . . . .’ Due
process violations cannot be remedied under the Takings Clause,
because ‘if a government action is to be found impermissible—
for instance because it fails to meet the ‘public use’ requirement
or is so arbitrary as to violate due process—that is the end of the
inquiry. No amount of compensation can authorize such
action.’ ”
Equity Lifestyles Properties, Inc. v. County of San Luis Obispo, No. 05-
55406, slip. op. 12437, 12455 n.16 (9th Cir. September 17, 2007) (citing
Lingle, 544 U.S. at 537, 543).
ACTION APARTMENT ASS’N v. SANTA MONICA 15627
unconstitutionally violate their right to use their property as
they see fit. [GB 23] Specifically, they argue that the provi-
sions are “arbitrary, unreasonable, and unrelated to the gen-
eral welfare” because “there is no legitimate interest in
subsidizing non-housing uses of rental properties nor in pro-
viding new rights and affirmative defenses for illegal occu-
pants,” particularly where California law does not recognize
illegal occupants as tenants. [RB 12, GB 23] “[A] regulation
that fails to serve any legitimate governmental objective may
be so arbitrary or irrational that it runs afoul of the Due Pro-
cess Clause.” Lingle, 544 U.S. at 542 (citing Lewis, 523 U.S.
at 846). The Landlords’ challenges to the rent control provi-
sions satisfy this standard and state a viable substantive due
process theory.
B
Despite the legal viability of the Landlords’ substantive due
process theory, both of their Fourteenth Amendment claims
fail on timeliness grounds. Action’s claim is time-barred, and
Millen’s claim is unripe.
1
Because Action’s claim rests on provisions of the rent con-
trol ordinance that have been in effect since 1979, its 2004
complaint was filed well beyond California’s two-year statute
of limitations for § 1983 claims.
[10] It is well-established that claims brought under § 1983
borrow the forum state’s statute of limitations for personal
injury claims, see Wilson v. Garcia, 471 U.S. 261, 266-67
(1985), and in California, that limitations period is two years.
See Cal. Code Civ. P. § 335.1. “Generally, the statute of limi-
tations begins to run when a potential plaintiff knows or has
reason to know of the asserted injury.” De Anza Properties X,
Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1086 (9th Cir.
1991).
15628 ACTION APARTMENT ASS’N v. SANTA MONICA
[11] In the context of a facial challenge under the Takings
Clause, we have held that the cause of action accrues on the
date that the challenged statute or ordinance went into effect.
See id. at 1087 (citing Wall v. City of Santa Barbara, 833 F.2d
1270, 1276 (9th Cir. 1986)). We also have held that the mere
re-enactment of a statutory scheme does not restart the clock,
id. at 1086, and that substantive amendments to a takings stat-
ute will give rise to a new cause of action only if those
amendments alter “the effect of the ordinance upon the plain-
tiffs.” id.
[12] Although we have not yet held that these accrual rules
apply to facial substantive due process claims, see Levald,
Inc. v. City of Palm Desert, 998 F.2d 680 (9th Cir. 1993)
(rejecting a facial takings claim as time-barred but consider-
ing a similar substantive due process claim on the merits,
without discussing timeliness), we see no reason to distin-
guish between facial takings claims and facial substantive due
process claims. First, the Wilson limitations period applies to
all § 1983 claims, regardless of the civil right asserted. 471
U.S. at 272. Second, the logic for the accrual rules in the tak-
ings context applies with equal force in the substantive due
process context. Given the general rule that “the statute of
limitations begins to run when a potential plaintiff knows or
has reason to know of the asserted injury,” it stands to reason
that any facial injury to any right should be apparent upon
passage and enactment of a statute. De Anza, 936 F.2d at
1086. Action, thus, should have known of its injury on the
date of the ordinance’s enactment.
The only question that remains is whether Action’s asserted
injury arises from provisions that were enacted in 1979 or
from substantive amendments that were enacted in 2002 and
that altered “the effect of the ordinance on” Action. If Action
challenges either the substance of the 1979 provisions or the
mere re-enactment of those provisions in 2002, then its claim
is time-barred.
ACTION APARTMENT ASS’N v. SANTA MONICA 15629
[13] Unlike its “public use” clause claim, Action’s substan-
tive due process claim makes no mention whatsoever of the
2002 amendments. Action states only that the “application of
Rent Control to Plaintiffs’ property deprives Plaintiffs of their
property rights without due process of law because Rent Con-
trol is not rationally related to its stated purposes.” That alle-
gation was as true in 1979 as it is today.
[14] We therefore hold that Action’s facial substantive due
process claim is time-barred.
2
Millen’s substantive due process challenge is time-barred
in part and unripe in part.
[15] First, Millen alleges that the enforcement of rent ceil-
ings for the benefit of a wealthy tenant is irrational. That
claim is time-barred because the rent ceiling has been in effect
continuously since 1979 and was not substantively altered in
2002.
Second, Millen seems to allege that the new eviction
requirements, which were enacted in 2002, give rise to a new
injury on the ground that the application of those provisions
for the benefit of the same tenant would be arbitrary. Millen,
however, has not alleged that the government has actually
enforced any of those provisions against him and for the bene-
fit of the identified tenant.
“[A] substantive due process violation is complete as soon
as the government action occurs.” Macri v. King County, 126
F.3d 1125, 1129 (9th Cir. 1997). However, “[t]he mere exis-
tence of a statute, which may or may not ever be applied to
plaintiffs, is not sufficient to create a case or controversy
within the meaning of Article III.” Stoianoff v. State of Mont.,
695 F.2d 1214, 1223 (9th Cir. 1983).
15630 ACTION APARTMENT ASS’N v. SANTA MONICA
[16] In this case, the “government action” that Millen chal-
lenges is the enforcement of the new eviction requirements
for the protection of a particular tenant in his building. That
specific government action has not yet occurred. As a result,
his claim is not yet ripe for review.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050618/ | Volume 1 of 4
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN COOPER,
Petitioner-Appellant, No. 05-99004
v.
D.C. No.
CV-04-00656-H
JILL L. BROWN, Warden, California
State Prison at San Quentin, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
January 9, 2007—San Francisco, California
Filed December 4, 2007
Before: Pamela Ann Rymer, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Rymer;
Concurrence by Judge McKeown
15663
COOPER v. BROWN 15667
COUNSEL
Norman C. Hile and Ali Kazemi, Orrick, Herrington & Sut-
cliffe LLP, San Francisco, California, for the petitioner.
Holly D. Wilkens, Deputy Attorney General, State of Califor-
nia, San Diego, for the respondent.
OPINION
RYMER, Circuit Judge:
Kevin Cooper appeals the district court’s denial of his third
federal petition for a writ of habeas corpus. Sitting en banc,
we held that Cooper made out a prima facie case that entitled
him to file a second or successive application; authorized him
to file it; and remanded for the district court to order that two
tests be performed so that “the question of Mr. Cooper’s inno-
cence can be answered once and for all.” Cooper v. Wood-
ford, 358 F.3d 1117, 1124 (9th Cir. 2004). The two tests were
a mitochondrial test of blond hairs found in one of the vic-
tim’s hands, and a test for the presence of the preservative
agent EDTA on a bloody T-shirt that was not part of the pros-
ecution’s case at trial but that Cooper specifically asked, on
appeal, to have tested. On remand, the district court conducted
15668 COOPER v. BROWN
the mitochondrial DNA testing on the hairs and EDTA testing
on the T-shirt. The results do not show Cooper’s innocence.
The court also held extensive evidentiary hearings at which
forty-two witnesses testified with respect to all issues encom-
passed in Cooper’s third application. In a 159-page ruling that
comprehensively addresses each of the claims, then-Chief
United States District Judge Marilyn L. Huff denied the peti-
tion on the merits and, alternatively, on the ground that Coo-
per’s claims in the successive petition are procedurally barred.
Order Denying Successive Petition for Writ of Habeas Corpus
(May 27, 2005) (Order) (attached as Appendix A).
Cooper sought, and we provisionally granted, a Certificate
of Appealability (COA) on whether the district court abused
its discretion by denying discovery, necessary forensic test-
ing, evidentiary hearings, and a request to expand the record;
whether he is entitled to relief on his claims of actual inno-
cence, that the state contaminated or tampered with key evi-
dence, that the state failed to disclose material exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), and that Josh Ryen’s testimony was unreliable; and
whether he demonstrated multiple constitutional errors with-
out which the jury would have returned a not guilty or non-
capital verdict. We leave the COA in place, but we see no
abuse of discretion in any respect and we agree with, and
adopt, the district court’s analysis on each of the claims.
Accordingly, we affirm.
I
Cooper was convicted of the first-degree murders of Frank-
lyn Douglas Ryen, Peggy Ryen, his wife, Jessica Ryen, their
10-year old daughter, and Christopher Hughes, an 11-year old
neighborhood friend of Joshua Ryen, the Ryen’s 8-year old
son who was brutally assaulted but lived. Following his con-
viction, Cooper was sentenced to death.
COOPER v. BROWN 15669
Cooper escaped from the California Institute for Men
(CIM), a state prison, on Thursday, June 2, 1983, and hid out
in a vacant house (the Lease house) next door to the Ryens’
residence on Thursday night, all day Friday, and Friday night
before the murders on Saturday night, June 4. Using a hatchet
or axe and a knife that came from the Lease house, Cooper
hacked to death Doug, who had 37 separate wounds, Peggy,
who had 32 separate wounds, Jessica, who had 46 wounds
that included carving on her chest, and Christopher, who had
26 wounds. Cooper inflicted chopping wounds to the head,
and stabbing wounds to the throat, of Joshua. Christopher’s
father found the bodies late Sunday morning.
The facts are set out in meticulous detail in the district
court’s order. Order at 15703-32; 15796-810. Suffice it to
summarize here that Cooper admitted staying in the Lease
house; a blood-stained khaki green button identical to buttons
on field jackets issued at the state prison from which Cooper
escaped was found on the rug at the Lease house; tests
revealed the presence of blood in the Leases’ shower and
bathroom sink; hair found in the bathroom sink was consistent
with that of Jessica and Doug Ryen; a hatchet covered with
dried blood and human hair that was found near the Ryens’
home was missing from the Lease house, and the sheath for
the hatchet was found in the bedroom where Cooper had
stayed; Cooper’s semen was found on a blanket in the closet
of the Lease house; one drop of blood (A-41) that belongs to
an African-American male, which Cooper is, was found on
the wall of the Ryen hallway opposite where Jessica was
found and post-trial DNA testing confirms that Cooper is the
source of A-41; plant burrs found inside Jessica’s nightgown
were similar to burrs from vegetation between the Lease
house and the Ryen house, and to burrs found on a blanket
inside the closet where Cooper slept at the Lease house, and
in the Ryen station wagon, which was missing when the
bodies were discovered but turned up, abandoned, in Long
Beach; two partial shoe prints and one nearly complete one
found in or near the Ryens’ house and in the Lease house
15670 COOPER v. BROWN
were consistent both with Cooper’s shoe size and Pro-Keds
Dude tennis shoes issued at CIM that Cooper did not deny
having; a hand-rolled cigarette butt and “Role-Rite” tobacco
provided to inmates at CIM was in the Ryens’ vehicle, and
similar tobacco was in the bedroom of the Lease house; and
a hair fragment found in the Ryen station wagon was consis-
tent with Cooper’s pubic hair. Cooper checked into a hotel in
Tijuana about 4 o’clock on Sunday afternoon.
The district court’s order likewise recounts the procedural
history from Cooper’s February 19, 1985 conviction. Order at
15696-703. In sum: the judgment of conviction and sentence
was affirmed by the California Supreme Court, which
observed that the “sheer volume and consistency of the evi-
dence is overwhelming,” People v. Cooper, 53 Cal.3d 771,
837, 281 Cal.Rptr. 90, 129 (1991), and the United States
Supreme Court denied a petition for certiorari, Cooper v. Cal-
ifornia, 502 U.S. 1016 (1991). Cooper’s first federal petition,
subsequently amended and supplemented, was filed August
11, 1994, and denied August 25, 1997; we affirmed, Cooper
v. Calderon, 255 F.3d 1104 (9th Cir. 2001) (Cooper I); and
his petition for a writ of certiorari was denied, 537 U.S. 861
(2002). Cooper filed a second federal petition on April 20,
1998, which we construed as an application for authorization
to file a second or successive petition and denied. Cooper v.
Calderon, 274 F.3d 1270 (9th Cir. 2001) (Cooper II). He
sought to file another successor petition that involved DNA
testing and tampering, which we denied, Cooper v. Calderon,
No. 99-71430 (9th Cir. Feb. 14, 2003, April 7, 2003) (orders).
Meanwhile, Cooper filed seven petitions in the California
Supreme Court together with a writ of mandate and various
motions, a habeas petition in the San Diego County Superior
Court, and six other petitions for a writ of certiorari in the
United States Supreme Court as well as two petitions for
habeas corpus, each of which was denied. Cooper’s February
2, 2004 petition to the California Supreme Court raised simi-
lar claims to those asserted in this application; that court
denied all claims on the merits on February 5, 2004, and also
COOPER v. BROWN 15671
denied as untimely those having to do with evidence tamper-
ing, failure to disclose exculpatory evidence, submission of
false testimony to the jury, and offering Joshua Ryen’s unreli-
able testimony. On February 6, 2004, Cooper filed another
application to file a successive application, which was ini-
tially denied, Cooper v. Woodford, 357 F.3d 1019 (9th Cir.
2004), withdrawn, 357 F.3d 1054 (Editor’s Note Feb. 8,
2004), but was later granted after this court sua sponte
decided to rehear the application en banc, Cooper v. Wood-
ford, 357 F.3d 1054 (9th Cir. 2004). En banc, we authorized
Cooper’s third habeas petition to be filed, and stayed execu-
tion pending resolution of this application. Cooper, 358 F.3d
at 1124 (Cooper III).
The district court denied the petition and denied Cooper’s
request for a COA. Judgment was entered on May 31, 2005.
When Cooper then filed a request for a COA in this court, we
allowed the appeal to go forward conditioned upon further
consideration once briefing was completed. The state asks
that we withdraw the COA, but we decline to do so. 28 U.S.C.
§ 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-37
(2003). This means that Cooper has leave to assert that even
though the district court allowed the testing that we ordered,
it abused its discretion in how the tests were conducted and
in the scope of the evidentiary hearings that it held; and to
appeal denial of claims one through four (actual innocence,
contamination or tampering with evidence, Brady violations,
and unreliability of Joshua Ryen testimony), and six through
nine (unlawful destruction of bloody coveralls, ineffective
assistance of counsel for failing to present evidence of another
person’s confession, ineffective assistance of counsel in fail-
ing to connect the bloody coveralls to Lee Furrow, ineffective
assistance of counsel in failing to introduce evidence that vic-
tims were clutching hair in their hands, and denial of constitu-
tional rights by cumulative law enforcement errors and
misconduct) of his third petition.
15672 COOPER v. BROWN
II
Standards of review under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) are well-known and are
fully set out in the district court’s order. See Order at 15732-
40. However, the framework for analyzing an actual inno-
cence “gateway” claim under Schlup v. Delo, 513 U.S. 298
(1995), remains unsettled. There is a question whether such a
claim is governed by the Schlup standard itself, or by the
AEDPA conditions for filing a second or successive applica-
tion, 28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii).1 Cf. House v.
Bell, 126 S.Ct. 2064, 2078 (analyzing a first habeas petition
seeking consideration of defaulted claims based on a showing
of actual innocence under Schlup rather than AEDPA). How-
ever, this need not detain us for Cooper fails to meet either
standard.
Beyond this, a district court’s decision to exclude expert
testimony is reviewed for an abuse of discretion. Stilwell v.
Smith & Nephew, Inc., 482 F.3d 1187, 1191 (9th Cir. 2007).
“The trial court has wide discretion in determining whether
1
To make a successful claim under Schlup, “a petitioner must show that
in light of all the evidence, including new evidence, ‘it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.’ ” Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir.
1997) (en banc).
For authorization to file a second or successive application for habeas
corpus under AEDPA, a petition must show that
(B)(i) the factual predicate for the claim could not have been dis-
covered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light
of the evidence a a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. §§ 2244(b)(2)(B)(i) and (ii). See Cooper III, 358 F.3d at 1119
(discussing the differences but finding it unnecessary to decide which
standard applies).
COOPER v. BROWN 15673
particular scientific tests are reliable enough to permit expert
testimony based upon their results.” United States v. Gilles-
pie, 852 F.2d 475, 480 (9th Cir. 1988) (citations omitted). The
determination whether an expert witness has sufficient quali-
fications to testify is reviewed for an abuse of discretion.
United States v. Abonce-Barrera, 257 F.3d 959, 964 (9th Cir.
2001).
We also review a district court’s decision to permit or deny
discovery in habeas proceedings for an abuse of discretion.
Bittaker v. Woodford, 331 F.3d 715, 728 (9th Cir. 2003) (en
banc). Such discovery is available only “for good cause.”2
Hayes v. Woodford, 301 F.3d 1054, 1065 n.6 (9th Cir. 2002).
“We review for an abuse of discretion the district court’s
denial of an evidentiary hearing and the scope of an evidenti-
ary hearing held.” Williams v. Woodford, 384 F.3d 567, 586
(9th Cir. 2004).
III
We first consider issues that relate to whether the district
court abused its discretion as Cooper contends it did in deny-
ing discovery, failing to order forensic testing, limiting what
he could show at evidentiary hearings, and refusing to expand
the record on certain claims. Many of these issues are inter-
woven with the merits of claims one through four and six
through nine, but Cooper raises discrete procedural challenges
that we treat separately as best we can because, if the district
court did not abuse its discretion in these procedural rulings,
we agree with its other determinations. Necessarily there is
overlap; to the extent there is, and reference to the district
court’s discussion on the merits is helpful to understanding its
2
Rule 6(a) of the Rules Governing Section 2254 Cases provides:
(a) A judge may, for good cause, authorize a party to conduct dis-
covery under the Federal Rules of Civil Procedure and may limit
the extent of discovery.
15674 COOPER v. BROWN
procedural rulings, we incorporate (without repeating) its
analysis.
A
Cooper complains that the district court denied the bulk of
his discovery requests, but focuses on only three of them:3 his
request for photographs and documentation of the examina-
tion and testing of the bloodstained T-shirt, blood drop A-41,
and the cigarette butts V-12 and V-17; San Bernardino Sher-
iffs Department (SBSD) files reviewed by Deputy Derek
Pacifico after Cooper filed his third habeas petition as part of
an investigation into whether CIM Warden Midge Carroll had
or had not contacted SBSD before trial with Brady informa-
tion regarding shoeprint evidence; and his request for test data
of Dr. Gary Siuzdak, one of the EDTA testing experts
selected by the court, when Siuzdak withdrew his results after
discovering EDTA contamination in his laboratory. Cooper
offers only a sketchy explanation why denying these requests,
without prejudice, abused the court’s discretion. We discern
no basis for concluding that it did.
[1] The state produced materials relating to the post-
conviction DNA testing in 2001 and these materials were also
exhibits in the evidentiary hearing conducted by the district
court. We cannot see how denying discovery as to these mate-
rials mattered at all.
[2] Warden Carroll’s January 30, 2004 declaration stated
that she had learned before trial — and had communicated to
3
Cooper’s briefing mentions other requests, e.g., for discovery related
to instructions to investigating authorities at the time of the murders to
stop pursuing evidence pointing to someone other than Cooper, and of the
notes of San Bernardino Sheriffs Department (SBSD) investigators who,
after the third petition was filed, investigated employees and patrons of the
Canyon Corral Bar on the night of the murders. However, he develops no
argument with respect to them and we deem appeal as to these denials, and
others, abandoned.
COOPER v. BROWN 15675
one of the lead detectives on the Cooper case — that the shoes
CIM carried were not specially designed prison-issue shoes
and were common shoes available to the general public
through Sears and other such retail stores.4 Because the en
banc court was persuaded that a Brady violation appeared to
be indicated, see Cooper III, 358 F.3d at 1120-21, the district
court set an evidentiary hearing to address Cooper’s claim
that the prosecution failed to disclose Carroll’s information. It
heard testimony from Carroll; Lt. Donald Smith, a former
investigator at CIM under Carroll; Don P. Luck, a former
executive and sales manager for Stride Rite Corporation, the
company that manufactured the Pro-Keds Dude tennis shoe;
and Sandra Coke, the defense investigator who obtained dec-
larations from Carroll, James Taylor, a CIM inmate who testi-
fied at trial that he gave Pro-Keds Dude tennis shoes to
Cooper, and Detective Derek Pacifico of SBSD.5 Carroll’s
files about Cooper’s escape and the murder investigation were
also in evidence. They are extremely detailed and include
records of telephone conversations; however, they contain no
indication that she spoke with the SBSD about tennis shoes
worn by CIM inmates. In part for this reason, the court did not
abuse its discretion in concluding that Cooper’s request for all
4
Although the district court cited a phone slip with the name of “Midge
Carroll” dated 9/19/83 and two pages of notes from trial counsel David
Negus’s files, its determination does not depend upon proof that Negus
knew about Carroll’s investigation of the tennis shoes. There was, there-
fore, no need for Cooper to have been allowed to expand the record to cor-
rect this error, if any. For this reason, the court neither abused its
discretion nor ignored the truth, as Cooper contends, in denying his
Motion to Expand the Record Pursuant to Rule 7.
5
Carroll was, of course, known to Cooper from day one. She had con-
tact with defense investigators before and after trial. Carroll’s availability
to Cooper would not necessarily derogate the state’s affirmative Brady
obligation to disclose material exculpatory information that it knew about,
but her accessability does highlight the lack of any meaningful connection
between the breadth of Cooper’s request and the possibility of adducing
favorable, material information that would tend to exculpate him. It is
unlikely that the SBSD would have thought itself capable of suppressing
information that Carroll herself could easily have provided to Cooper.
15676 COOPER v. BROWN
SBSD files reviewed by Pacifico was unjustified by the possi-
bility that Pacifico’s review may have overlooked SBSD doc-
uments reflecting a communication that Carroll’s own
detailed files do not show. In addition, the prosecution’s the-
ory was not that Pro-Keds Dude shoes were limited to prison
inmates (the Stride Rite records introduced at trial showed
distribution to other government institutions), but that there
was a link between the imprints found at and near the Ryen
house and in the Lease house to Cooper, who never denied
having a pair of Pro-Keds Dude shoes. Contracts from Stride
Rite that were in evidence at trial show that CIM purchased
1,390 Pro-Keds Dude shoes. Carroll herself had no personal
knowledge whatsoever about the availability of the tennis
shoes at CIM or elsewhere. Thus, even if she had called
SBSD as her declaration avers, all that she could have com-
municated was her belief that Pro-Keds Dude shoes weren’t
available at CIM but were available at places like Sears —
which is both mistaken and immaterial. Consequently, her
communication could not have had any appreciable bearing
on a Brady claim. Cf. Pham v. Terhune, 400 F.3d 740, 743
(9th Cir. 2005) (noting that discovery under Rule 6(a) should
not be denied if it is essential to develop fully a petitioner’s
claim).
Finally, the court acted within its discretion in denying
access to Dr. Siuzdak’s data. His EDTA test results did not
reflect the expected results from the PBS buffer reagent blank
control and so were unreliable. Contamination was not
remarkable, as laboratories use EDTA in testing. As Suiz-
dak’s results were unreliable, they could not be used to prove
Cooper’s tampering claim.
B
Cooper contends that the district court’s testing protocol for
the bloody T-shirt was flawed in five respects: (1) while the
court facially complied with the en banc order allowing only
Cooper to select a stain from the T-shirt for limited anti-
COOPER v. BROWN 15677
clotting agent testing, it refused to allow presumptive blood
testing to determine whether the stain tested was even a blood
stain; (2) it did not allow his experts, Dr. Peter DeForest and
Dr. Kevin Ballard, to view the T-shirt as a first step in design-
ing the protocol; (3) it accepted at face value Dr. Gary Siuz-
dak’s retraction of his EDTA testing results; (4) it denied
testing for anti-clotting agent migration; and (5) it denied test-
ing for other anti-clotting agents such as citric acid that were
used to preserve Cooper’s blood. He also maintains that while
the district court facially complied with this court’s order to
perform mitochondrial DNA testing to determine whether
hairs at the crime scene belonged to a third party perpetrator,
the testing ignored the recommendation of Dr. Edward Blake
to evaluate unexamined groups of hair. As a result, Cooper
submits, a large group of hairs was never examined for ana-
gen roots (roots that indicate the hair was pulled instead of
having been cut or broken), and thus hairs in that group were
never considered for testing. He also argues that the Cooper
DNA against which the hairs were examined was contami-
nated and therefore could not prove that he was a possible
source of the hairs. We disagree that the district court abused
its discretion in conducting either test.
[3] The district court held a tutorial on mitochondrial DNA
and EDTA testing at which experts for Cooper and the state
testified. At the tutorial, Cooper’s expert, Dr. Terry Melton,
explained that mitochondrial testing cannot be used effec-
tively to identify the source of hairs, but rather is primarily an
exclusionary method as it determines only whether a hair
shares maternal DNA with a particular individual. The court
developed a protocol and ordered that ten hairs suitable for
testing from Jessica’s hands be tested for mitochondrial DNA
and that two hairs (one found on Doug Ryen’s hand and one
on Chris Hughes’s arm) identified in 2001 as having anagen
roots also be tested. Dr. DeForest, Cooper’s criminalist,
selected the hairs. Two proved to be animal hairs, and tests on
the remaining hairs could not exclude Jessica, Peggy, Josh or
their maternal relatives as donors. Therefore, the results of
15678 COOPER v. BROWN
mitochondrial DNA tests did not indicate that these hairs were
pulled out of the head of a third party perpetrator.
With respect to testing the T-shirt for the purpose of deter-
mining whether the blood, previously associated with Coo-
per’s DNA, had been planted, the district court developed the
EDTA protocol over a three-month period and after extensive
input from counsel and the experts. Upon the parties’ recom-
mendation, the court also adopted a “control” method of test-
ing in which the amount of EDTA detected in a stain would
be compared to the amounts of EDTA found in various con-
trol swatches and from other non-stained portions of the T-
shirt. Pursuant to the protocol, the stain was to be extracted
by Dr. DeForest and shipped to Dr. Ballard and Dr. Suizdak
for double-blind EDTA testing. After the test results were
submitted, the parties proposed a protocol for DNA testing to
determine whether the main stain fabric cut-out from the
EDTA testing contained Cooper’s blood. From the results of
that testing, Cooper could not be excluded as a contributor of
the DNA extracted from the cut-out, while Peggy Ryen, Jes-
sica Ryen, Josh Ryen, Doug Ryen and Chris Hughes were
each eliminated as a possible contributor. The court ultimately
concluded that EDTA testing lacks sufficient indicia of reli-
ability to be admissible under Daubert v. Merrell Dow Phar-
maceuticals, Inc., 509 U.S. 579, 589 (1993). However, the
court alternatively found that Dr. Ballard’s results disprove
Cooper’s theory of tampering because Cooper’s theory
requires a high level of EDTA presence in the blood, but the
EDTA level in the stain with blood was actually lower than
that of most of the control areas. See Order at 15760-89
(describing process and making EDTA findings).
[4] Turning to Cooper’s contentions about testing of the T-
shirt, we note at the outset that it is immaterial whether the
EDTA tests were flawed or not because the district court had
discretion to conclude that EDTA testing does not meet Dau-
bert standards. “In Daubert, the Court set out four factors to
be reviewed when applying Rule 702: (1) whether the theory
COOPER v. BROWN 15679
or technique can be or has been tested, (2) whether the theory
or technique has been subjected to peer review, (3) whether
the error rate is known and standards exist controlling the
operation of the technique, and (4) whether the theory or tech-
nique has gained general acceptance.”6 United States v.
Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000).
There is no evidence in the record that application of mass
spectrometry to forensic analysis of blood evidence to deter-
mine EDTA levels can be or has been tested. The technique
has been offered to courts only twice before; in one case,
there was no challenge to the EDTA evidence and in the
other, Dr. Ballard, as well as the EDTA testing that he was to
perform, were rejected by the court. EDTA testing has not
been subjected to peer review and there has been no discus-
sion of forensic EDTA testing in scientific literature since a
1997 article that headlines the need for a better analytical
method. In short, for reasons explained in detail by the district
court, Order at 15774-85, EDTA testing has not gained gen-
eral acceptance in the scientific community.
[5] Regardless, Cooper fails to explain why additional
inspection of the T-shirt was necessary, for an appropriate
stain and controls were selected after 6G, the stain that was
initially selected, proved unavailable because it had already
been consumed. Dr. DeForest did not participate in this selec-
tion because he had removed himself, but Cellmark — a labo-
ratory that Cooper agreed was highly qualified — replaced
6
Federal Rule of Evidence 702 governs admissibility of scientific evi-
dence in federal district court. Clausen v. M/V NEW CARISSA, 339 F.3d
1049, 1055 (9th Cir. 2003). It provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon suf-
ficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the prin-
ciples and methods reliably to the facts of the case.
15680 COOPER v. BROWN
him to conduct the extraction. No basis appears in the record
to question selection of the stain that was used, and Cooper
points to none on appeal. Dr. Maddox of Cellmark and the
state’s expert, Steven Myers, selected an area between two
stains designated “6J” and “6K,” each of which had earlier
been found to be blood containing primarily Cooper’s DNA.
Nor does any reason appear why Dr. Suizdak’s representa-
tions should not have been accepted at face value; the testing
he was to undertake was double-blind, he is a well respected
scientist, and he had no interest in the outcome.
[6] Cooper never asked for presumptive blood testing
before the protocol was implemented, which is sufficient rea-
son to reject his argument on appeal; in any event, as DNA
analysis on the tested area later confirmed that Cooper could
not be excluded as a contributor of the DNA extracted from
the cut-out, there is no point to his complaining now about the
lack of presumptive testing. Likewise, Cooper articulated no
concern before the test results were in about the possibility
that EDTA could have migrated from the selected stain.
Regardless, if his post-hoc migration theory were correct, it
would be theoretically impossible to achieve meaningful
results from further testing as there is no way to determine
whether the background EDTA levels throughout the shirt are
higher than normal for there is no “normal” base level of
EDTA.
[7] Finally, Cooper’s suggestion that testing for other anti-
clotting agents such as citric acid should have been allowed
is misplaced as the only occasion where his blood was pre-
served in a tube containing citric acid was when it was drawn
by the San Quentin Prison, not by the SBSD, and the only
blood sample of Cooper’s to which the SBSD had access was
drawn into a tube containing EDTA as a preservative. Further
testing on the T-shirt was, therefore, not required.
[8] Neither was the mitochondrial DNA testing deficient as
Cooper argues. By way of background, Cooper’s forensic
COOPER v. BROWN 15681
expert (Dr. Blake) and Department of Justice criminalist Ste-
ven Myers spent six days in 2001 jointly conducting visual
and microscopic examination of approximately 1000 hairs
recovered from the victims’ bodies in order to identify hairs
that had properties of hair pulled from the skin. Only hairs
with anagen roots can be used to identify an assailant because
only they, as contrasted with a cut or broken hair, can indicate
that the victim may have pulled the perpetrator’s hair in a
struggle. Three hairs meeting the experts’ criteria were identi-
fied, but nuclear DNA testing of these hairs yielded no human
DNA. Responsive to the en banc ruling, the district court
allowed Cooper’s criminalist to select up to 10 hairs from
those removed from Jessica’s hands for mitochondrial DNA
testing. No anagen hairs were identified and the 10 hairs
selected were tested along with the two remaining hairs sub-
jected to nuclear DNA testing in 2001. The results show that
Jessica, Peggy, and Josh Ryen could not be excluded as the
source of the hairs in Jessica’s hands.
Cooper contends that the court turned its back on its “own
expert’s” view that hair testing must be designed to ensure
that it is complete and thorough, but the premise is faulty on
two accounts. First, the expert referred to — Dr. Blake — was
not the court’s expert, as Cooper characterizes him; he was
Cooper’s expert in state court and has been throughout the
federal proceedings, and did not become otherwise solely on
account of his appointment by the court for the purpose of
assuring adequate compensation. More importantly, Dr. Blake
did not recommend that every hair be examined, as Cooper
suggests. To the contrary, Blake testified that “[t]he only rea-
son to go through this process one more time is simply to be
much more rigorous and detailed in the survey, should that be
deemed to be a useful thing to do.” He never opined that it
would be useful or reasonable.
[9] Cooper’s argument that his blood sample was contami-
nated is beside the point. The hairs were never examined to
see if they came from Cooper, and there has never been any
15682 COOPER v. BROWN
evidence or suggestion to that effect. Rather, Cooper’s theory
was that the hairs came from a third party, that is, from the
real killer, and if this could be shown, then the presence of a
third party at the scene would prove his innocence. That is
why the en banc court ordered mitochondrial testing. See 358
F.3d at 1124 (noting that mitochondrial testing of the blond
or light brown hair in Jessica Ryen’s hand, if favorable to
Cooper, could positively identify Lee Furrow or perhaps oth-
ers as the killer or killers). Thus, even if Cooper’s sample
were contaminated, it is irrelevant.
C
[10] Cooper maintains that the district court refused to
allow him to present evidence related to the three suspicious
men in the Canyon Corral Bar. This is belied by the record.
See Order at 15811-23. He points to exclusion of Al Warren,
a bartender who was not present on the night of the murders,
for whom his only proffer was that Warren was “presumably”
privy to discussion of the incident. Having heard from the
bartender who was on duty (Edward Lelko), the manager, the
waitress who served the three men drinks, two patrons who
saw the three men, another waitress who was working that
night, a bouncer, and others who frequented the Canyon Cor-
ral, the court had discretion to decline to hear another bar
employee who was not percipient. Cooper also points to lim-
ited inquiry into witness tampering with Lance Stark. Stark
testified that before the evidentiary hearing, he was
approached by an individual wearing a white, short sleeve
shirt and driving a white, unmarked Ford Crown Victoria with
a computer extending out from the dashboard on an arm,
whom he believed to be a member of law enforcement and
who made it clear that it would be in Stark’s best interest not
to talk about the Cooper case. However, the court had discre-
tion to find that Cooper’s request for further inquiry would be
a wild goose chase as Cooper had no license plate or other
information that might lead to the driver, and to conclude that
it would be unlikely to produce anything of probative value.
COOPER v. BROWN 15683
Stark testified, so the incident did not inhibit him and even if
it were law-enforcement related as he speculates, it would
have no tendency to prove what happened at the Canyon Cor-
ral Bar.
[11] Cooper also submits that the court improperly refused
to allow him to examine Daniel Gregonis, the SBSD criminal-
ist responsible for examining and testing several items of evi-
dence including the bloodstained T-shirt, blood drop A-41,
and the cigarette butts V-12 and V-17. However, Cooper was
given an evidentiary hearing in state court in 2003 to present
evidence of his tampering claims, and Gregonis testified and
was examined by Cooper’s counsel. He had an opportunity to
develop a record, and the district court was not obliged to pro-
vide another one.
The same is true to the extent Cooper contends that further
testing is needed in general to show that these items, blood
spots identified as the “UU Series,” and a blood sample drawn
from him at the time of his arrest (VV-2) were tampered with.
Each claim is procedurally barred and, in addition, both the
tampering with the UU Series claim and the planting of ciga-
rette butts claim have been previously adjudicated. See, e.g.,
Cooper v. Calderon, No. 92-CV-427H at 41, 50-51. As we
have explained, it doesn’t matter to any of Cooper’s claims
whether his blood sample (VV-2) was contaminated or not; it
wasn’t used for anything material.
Cooper also insists that the fact that the size of one of the
cigarettes (V-12) changed by 3 millimeters after having been
unrolled for testing demonstrates tampering, but his position
was rejected by the San Diego County Superior Court after an
evidentiary hearing and Cooper has not overcome the defer-
ence due that determination under 28 U.S.C. § 2254(d). The
first measurement (4 mm) was of a “butt,” whereas the second
measurement (7 mm) is one of two dimensions given for
“burned paper in box 7x7 mm.” It is clear that the second
measurement is of unrolled paper, whereas the first measure-
15684 COOPER v. BROWN
ment is of the rolled butt. That the dimensions would be dif-
ferent is self-evident, and the difference in no way calls into
question the state court’s finding or requires further inquiry at
this stage.
[12] Cooper continues to assert that the bloody T-shirt is
connected to at least one of the perpetrators and that the dis-
trict court limited the evidence he was allowed to develop and
present to show tampering. This goes nowhere for reasons we
have just explained. Nor did the district court abuse its discre-
tion in not allowing Cooper to recall Dr. Ballard to clarify the
reliability of his testing methods, to state that he could test for
other anti-clotting agents, and to testify to the reliability of his
laboratory; or to cross-examine experts with respect to anti-
clotting agent testing; or to cross-examine Dr. Suizdak and
Dr. Lewis Maddox, who prepared the stain solutions for test-
ing. To the extent relevant and helpful, ample opportunity for
expert input and consultation was afforded.
[13] Cooper also faults the district court for refusing to per-
mit him to pursue examination of informant Albert Anthony
Ruiz, who testified at an evidentiary hearing on August 6,
2004, about what he might have heard from sources other
than law enforcement in San Bernardino County. The asserted
relevance was to Cooper’s Brady claim that the prosecution
failed to disclose evidence from Ruiz that law enforcement
was ordered to plant evidence inculpating Cooper. We see no
abuse of discretion, as Ruiz did not work for and had no deal-
ings with SBSD and had no direct information about the
investigation. All that he could possibly have learned was sec-
ondhand public information recounted by Jim Parsons, a dep-
uty with the Riverside County Sheriff’s Department who
submitted a declaration himself and who, in any event, had no
involvement in the Cooper case or knowledge of it beyond
what he read in the papers or saw on television. In light of
this, the court committed no error in excluding information
that was hearsay and speculation as well as immaterial to
SBSD’s Brady obligations.
COOPER v. BROWN 15685
[14] Cooper’s contention that the district court improperly
refused to allow him to uncover and present evidence regard-
ing daily logs and a blue shirt listed on the log for June 6,
1983, fails as no evidence contradicts the state’s submission
that the log was available to Cooper before trial. Cooper’s
counsel represented to the trial judge that he had the daily
logs. The issue could, and should, have been pursued long
before now. See Order at 14869-74.
[15] Cooper argues that he was precluded from fully
exploring his tennis shoe claims by the court’s refusal to
allow him to review the records Pacifico reviewed and to send
written questions to Michael Newberry, who worked for
Stride Rite Corporation and testified at trial that Stride Rite
had a contract with CIM for Pro-Keds Dude tennis shoes that
were not available in retail stores. We have already explained
why the court did not abuse its discretion in declining to order
discovery into all the SBSD files reviewed by Pacifico, and
Cooper makes no proffer why questions to Newberry would
shed any light on the contracts which were, themselves, in
evidence, or on distribution of the Pro-Keds Dude shoe as to
which there is no substantial dispute — except for Carroll’s
unfounded belief.
[16] Cooper also complains that he was not allowed to
cross-examine Josh Ryen in connection with Claim Four,
which asserts that Josh’s testimony at trial was altered and
unreliable. As the district court found, the facts and circum-
stances surrounding Josh Ryen’s statements and how they
were presented to the jury have been known for twenty years.
The jury heard two taped statements pursuant to the parties’
stipulation: a videotape of an interview on December 9, 1984
when Cooper’s counsel and the prosecutor questioned Josh
under oath, and an audiotape of a December 1, 1983 interview
with Dr. Lorna Forbes, Josh’s treating psychiatrist. He did not
identify an assailant in either one, but said on the one hand
that three Hispanic workers visited the ranch the day of the
murders, and on the other that he saw a single man with a
15686 COOPER v. BROWN
“puff” of hair standing over his mother. On April 22, 2005,
the district court allowed Josh Ryen, along with Christopher
Hughes’s parents, to make a statement about their views of
the matter as victims.7 Cooper argues that he should have
been allowed an evidentiary hearing because the April 22,
2005 statement (during which Josh Ryen recalled a man with
“bushy” hair) was a “third version” that further proves the
manipulation, and unreliability, of the trial version. We dis-
agree that the court abused its discretion.8 Even accepting
Cooper’s position that Josh Ryen’s April 22, 2005 statement
satisfies the requirements for an evidentiary hearing in
§ 2254(e)(2) because the latest version could not have been
discovered earlier, § 2254(e)(2)(B)9 nevertheless applies to
bar relief as the jury knew that Josh Ryen had given some-
what inconsistent accounts yet convicted Cooper anyway. We
7
This was after the close of evidence. The district court allowed Hughes
and Josh Ryen an opportunity to make a statement consistent with Con-
gress’s intent in The Justice For All Act, Pub. L. No. 108-405, § 102, 118
Stat. 2260, 2261-62 (2004), that victims be heard.
8
Aside from noting that the jury never heard Josh’s recollection of a
man with bushy hair, the district court did not base its Claim Four determi-
nation on anything that Josh said in his victim statement. Rather, it found
that the defense was benefitted at trial by the taped presentations because
Josh Ryen did not identify his assailant, the jury heard his earlier state-
ment that three Hispanic workers had been at the ranch, and the stipulation
avoided the sympathy factor of having Josh present on the stand. It con-
cluded that deference was due to the state court’s determinations and, as
Cooper has known about Josh’s somewhat inconsistent versions since the
murder, he failed to exercise due diligence in developing the factual predi-
cate for a new evidentiary hearing. See Order at 14878-79; 28 U.S.C.
§ 2254(e)(2).
9
In relevant part, 28 U.S.C. § 2254(e)(2)(B) provides that an evidentiary
hearing shall not be held on a claim unless it relies on a factual predicate
that could not have been previously discovered through the exercise of due
diligence, and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
COOPER v. BROWN 15687
cannot conclude that no reasonable juror would have con-
victed Cooper knowing that Josh Ryen now recalls a man
with bushy hair.
Finally, Cooper maintains that the district court purported
to make credibility determinations of witnesses based solely
on documents. Even if this weren’t allowed (which it is, in
appropriate circumstances), he points to no instances where
this happened.
[17] Accordingly, there is no basis to remand for examina-
tion and more testing of the evidence, or additional evidenti-
ary hearings, as Cooper urges.
IV
The district court denied Cooper’s claim of actual inno-
cence after detailing the DNA evidence that shows he is the
donor of the DNA extracted from the drop of blood found in
the hallway outside the Ryen master bedroom (A-41), saliva
from the hand-rolled and manufactured cigarette butts (as
used at CIM) found inside the abandoned Ryen station wagon,
and blood smears on the T-shirt found near the Canyon Corral
Bar (even though it was not used to establish Cooper’s guilt
at trial); explaining why Cooper’s challenge to the DNA evi-
dence is unavailing; reviewing prior court findings that docu-
ment overwhelming evidence of guilt; and considering the
testimony from forty-two witnesses and numerous exhibits
introduced at evidentiary hearings held after remand. Order at
15789-853.
Cooper argues the district court was incorrect in light of
substantial evidence of third party perpetrators in the Canyon
Corral Bar and Albert Anthony Ruiz’s testimony. That he
didn’t do it, Cooper suggests, is bolstered by his showing of
alternative suspects through the Kenneth Koon confession and
information concerning Lee Furrow and his bloody coveralls.
15688 COOPER v. BROWN
We disagree, for reasons stated by the district court. See Order
at 15846-47; 15850-51.
[18] We agree with the district court’s conclusion that all
of Cooper’s challenges “have come back the same: there is
overwhelming evidence that Petitioner is the person guilty of
these murders.” Order at 15854. Considering all the evidence,
new and old, Cooper has not shown that it is more likely than
not that no reasonable juror would have found him guilty
beyond a reasonable doubt. Schlup, 513 U.S. at 327; see
House, 1265 S.Ct. at 2076-78 (explaining the Schlup stan-
dard). Thus, Cooper meets neither Schlup’s gateway nor
AEDPA’s.10 It follows that Cooper has not met Herrera’s
standard for actual innocence. Herrera v. Collins, 506 U.S.
390 (1993).
V
[19] In discussing Cooper’s procedural challenges, we have
already indicated why he is not entitled to relief on his claim
that the state contaminated or tampered with the evidence
with respect to examination and testing of the T-shirt and the
blood spot (A-41). The T-shirt, of course, was not used as evi-
dence against Cooper so it is difficult to see how it could have
had any inculpatory effect. Post-conviction, however, it has
become the center of attention. See, e.g., Cooper III, 358 F.3d
at 1124 (observing that this case centers on Cooper’s claim
that he is innocent, and quoting his argument that with EDTA
testing “ ‘the question of Mr. Cooper’s innocence can be
10
In addition to finding that most of Cooper’s allegations relate to evi-
dence that was already presented at trial and previously rejected, and that
the remainder rest on unreliable or incorrect information and source, the
court concluded that Cooper did not meet his burden under 28 U.S.C.
§ 2244(b), which requires a factual claim not discoverable through due dil-
igence that establishes by clear and convincing evidence that, but for con-
stitutional error, no reasonable factfinder would have found him guilty, or
under § 2254(d), which requires that the state court’s decision be contrary
to or an unreasonable application of clearly established federal law.
COOPER v. BROWN 15689
answered once and for all’ ”); id. (Silverman, CJ, concurring
in part and dissenting in part) (noting that “[e]verything
comes down to the bloody t-shirt”). The San Diego County
Superior Court took evidence on the tampering claim and
found none, and the California Supreme Court denied Coo-
per’s petition for writ of mandate on the issue. EDTA testing
turned up nothing to indicate tampering.
There was neither visible blood remaining on the paint
chips comprising A-41 nor control areas around the blood
sample for purposes of determining if there is a significant
difference between the amounts of EDTA in the stain com-
pared with areas surrounding it. Accordingly, for reasons it
explained that are well-founded in the record, the district
court concluded that A-41 is not able to be reliably tested for
the presence of EDTA. Order at 15786-89. This leaves in
place the finding of the state court that no tampering occurred.
Cooper offers no convincing evidence why that finding is not
correct and entitled to deference.
[20] To the extent his appeal extends beyond these items,
we also agree with the district court’s analysis that Cooper’s
claims of evidence tampering and withholding lack merit. See
Order at 15874-78.
VI
[21] Cooper argues that the district court’s analysis of his
Brady claims was contrary to clearly established federal law
as set forth in Kyles v. Whitley, 514 U.S. 419, 435-36 & n. 10
(1995), in that it analyzed each Brady claim individually with-
out analyzing their cumulative effect. We agree with the dis-
trict court’s analysis with regard to the state’s alleged
withholding and manipulation of evidence related to shoe-
prints found in the Ryen home and hideout house, the bloody
coveralls, the blue shirt, and the Canyon Corral Bar. As there
is no individual Brady violation, there are no violations to
cumulate.
15690 COOPER v. BROWN
[22] Apart from what we have already discussed, the dis-
trict court held an evidentiary hearing to evaluate Cooper’s
claim that he discovered in 1998 a disposition report initialed
“KS” that contradicted Deputy Frederick Eckley’s trial testi-
mony that on his own, he had destroyed the coveralls that
Diana Roper gave him. After considering the testimony of
Eckley and Deputy Ken Schreckengost (the “KS” of “KS”)
and evaluating their credibility, the court found that Eckley
did act on his own in destroying the coveralls without discuss-
ing it with Schreckengost. So, as the district court held, the
disposition report does not cast doubt on Eckley’s testimony
or undermine the prior findings and conclusions of the Cali-
fornia Supreme Court or the district court’s own determina-
tion that the coveralls were not material exculpatory evidence
in Cooper’s case. Order at 15857-59. We are not firmly con-
vinced this finding is wrong.
[23] The district court rejected Cooper’s contention that the
prosecution failed to disclose that a police officer was present
at the Canyon Corral Bar on the night of the murders based
on extensive testimony about what actually happened that
night and what it viewed as the more credible version of those
events. Cooper’s argument on appeal is insubstantial and
leaves us without a firm conviction that the district court
erred. As there was no police presence at the bar on the night
of the murders, there was no evidence for the prosecution to
suppress.
[24] Cooper additionally alludes to the fact that Detective
Timothy Wilson had information that three suspicious men
were seen in the bar, which he passed on to the sergeant in
charge of the Ryen/Hughes investigation but which the prose-
cution failed to disclose to Cooper. However, Cooper offers
no suggestion why this information undermines confidence in
the verdict. It was no secret that three strangers were at the
bar. The district court found that the more credible version of
events came from employees and patrons interviewed shortly
after the murders who testified at trial. In any event, none of
COOPER v. BROWN 15691
the witnesses casts doubt on the physical evidence of Coo-
per’s guilt. As the court’s exhaustive recital of all the Canyon
Corral evidence — both that adduced at trial and at the evi-
dentiary hearing — shows, see Order at 15811-24, rumors
that Wilson picked up from word on the streets could not have
been exculpatory, impeaching or material.
VII
[25] The district court noted that the jury heard two taped
statements of Joshua Ryen, pursuant to stipulation, that bene-
fitted the defense because he did not identify his assailant, had
earlier indicated that three Hispanic workers had been at the
ranch, and was not on the stand to garner sympathy. The court
deferred to denial of Cooper’s constitutional claim on the
merits by the California Supreme Court pursuant to 28 U.S.C.
§ 2254(d), and found that Cooper had not demonstrated that,
but for constitutional error, no reasonable juror would have
found him guilty if Josh Ryen had been subjected to testifying
at trial. Order at 15878-80. We agree.
VIII
Cooper’s initial briefing posits that he is entitled to relief on
his claim that SBSD unlawfully destroyed the bloody cover-
alls, and on his claims that trial counsel rendered ineffective
assistance in failing to present evidence of another person’s
confession to the murders, failing to connect the bloody cov-
eralls to Lee Furrow, and failing to introduce evidence that
victims were clutching hair in their hands. He pursues none
of these claims in reply. Each has been adjudicated previously
in one forum or another. And we are in accord with the dis-
trict court’s treatment of all these claims. See Order at 15846-
53.
IX
[26] Our conclusion that Cooper prevails on none of his
claims moots his last submission, that his conviction and sen-
15692 COOPER v. BROWN
tence were infected by multiple constitutional errors without
which the jury would have returned a not guilty or non-capital
verdict. As the district court, and all state courts, have repeat-
edly found, evidence of Cooper’s guilt was overwhelming.
The tests that he asked for to show his innocence “once and
for all” show nothing of the sort.
AFFIRMED.
COOPER v. BROWN 15693
APPENDIX A
Order Denying Successive Petition for Writ of Habeas
Corpus (May 27, 2005)
United States District Court
Southern District of California
COOPER v. BROWN 15887
McKEOWN, Circuit Judge, concurring:
I.
I concur in the opinion but am troubled that we cannot, in
Kevin Cooper’s words, resolve the question of his guilt “once
and for all.” I do not fault the careful and extensive review by
the district court or the multiple levels of appeal carried out
under statutory and Supreme Court standards. Rather, the
state bears considerable responsibility in making such resolu-
tion unavailable. I separately concur to underscore the critical
link between confidence in our justice system and integrity of
the evidence.
Significant evidence bearing on Cooper’s culpability has
been lost, destroyed or left unpursued, including, for example,
blood-covered coveralls belonging to a potential suspect who
was a convicted murderer, and a bloody t-shirt, discovered
alongside the road near the crime scene. The managing crimi-
nologist in charge of the evidence used to establish Cooper’s
guilt at trial was, as it turns out, a heroin addict, and was fired
for stealing drugs seized by the police. Countless other
alleged problems with the handling and disclosure of evidence
and the integrity of the forensic testing and investigation
undermine confidence in the evidence. As the Supreme Court
observed in Kyles v. Whitley, “[w]hen, for example, the pro-
bative force of evidence depends on the circumstances in
which it was obtained and those circumstances raise a possi-
bility of fraud, indications of conscientious police work will
enhance probative force and slovenly work will diminish it.”
514 U.S. 419, 446 n.15 (1995).
The legitimacy of our criminal justice system depends on
the “special role played by the American prosecutor in the
search for truth in criminal trials.” Banks v. Dretke, 540 U.S.
668, 696 (2004) (quoting Strickler v. Greene, 527 U.S. 263,
281 (1999)). The same principle extends to the police and
their investigatory work in supporting the prosecution. Of
15888 COOPER v. BROWN
course we don’t demand or expect perfection. But we expect
full disclosure, competency in the investigation, and confi-
dence in the evidence. To be sure, sometimes the prosecution
is hampered by sloppy police work. And sometimes inept
investigation and disclosure by the police colors the prosecu-
tion. But, the obligation of the prosecutor to disclose evidence
favorable to the defense serves to “justify trust in the prosecu-
tor as ‘the representative . . . of a sovereignty . . . whose inter-
est . . . in a criminal prosecution is not that it shall win a case,
but that justice shall be done.” Kyles, 514 U.S. at 439 (quoting
Berger v. United States, 295 U.S. 78, 88 (1935)).
Despite the presence of serious questions as to the integrity
of the investigation and evidence supporting the conviction,
we are constrained by the requirements of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2244(b)(2)(b). The only exception potentially applicable in
Cooper’s case requires Cooper to present facts that “could not
have been discovered previously through the exercise of due
diligence,” and that, if proven, and “viewed in light of the evi-
dence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [Cooper] guilty of
the underlying offense.” 28 U.S.C. § 2244(b)(2)(B) (empha-
ses added).
In light of this demanding statutory barrier, I agree that
Cooper has failed to qualify for relief. Nonetheless, I write
separately to draw attention to the illustrative troubling cir-
cumstances involving the alleged state mishandling of evi-
dence. The forensic evidence in this case is critical and yet
was compromised.1 These facts are all the more troubling
because Cooper’s life is at stake.
1
Other evidence, such as the eye witness testimony, was wide-ranging
and contradictory. For example, following the murders, Josh initially sig-
naled that three men were his attackers. He also signaled that they were
not black or dark-skinned. Later, he saw Cooper on television and said that
Cooper was not the attacker and that he had never seen Cooper, an obser-
vation he also shared with his grandmother. A year and a half later, Josh
testified that Cooper had done the killing.
COOPER v. BROWN 15889
II.
Following are illustrative examples of evidentiary gaps,
mishandling of evidence and suspicious circumstances.
DESTRUCTION OF BLOODY COVERALLS
During the pre-trial investigation, a woman named Diana
Roper phoned police to report a pair of bloody coveralls left
at her house by her then-boyfriend, Lee Furrow. Roper told
police that Furrow may have been involved in the Ryen-
Hughes murders. Furrow’s hatchet was missing from his tool
belt after the murders, and Roper also reported erratic behav-
ior and remarks that aroused her suspicion.
According to Roper and her sister, on the day after the mur-
ders, Furrow showed up in a car that matched the description
of the Ryens’ station wagon. Roper also explained that Fur-
row bragged about his three rules “to follow anytime you do
a crime:” “wear gloves, never wear your own shoes and never
leave a witness alive.”
In the face of this potential link between Furrow and the
murders, and despite being a convicted murderer, Furrow was
never pursued as a suspect. See, e.g., Allen v. Woodford, 395
F.3d 979, 986 (9th Cir. 2005) (“When Furrow and Kitts were
finally left alone, Furrow began to strangle Kitts, only to be
interrupted by a phone call . . . . Furrow then strangled Kitts
to death . . . tie[d] stones to Kitt’s wrapped-up body and . . .
[threw] it into a canal.”).
The coveralls were turned over to a detective, but case
investigators did not follow up. The homicide division did not
return phone calls. Then, before completion of the preliminary
hearing, the detective threw the coveralls away in a dumpster.
Although the destruction of the coveralls was known at trial
and was pursued during Cooper’s first federal habeas petition,
the destruction of evidence was claimed to be the misguided
15890 COOPER v. BROWN
act of a single officer. Only later, long after the trial, did the
defense discover previously undisclosed documentary evi-
dence to the contrary—a police department memorandum
confirming destruction of the coveralls, signed by a higher
ranking supervisory officer. Destruction of bloody coveralls
from a potential suspect is not an inconsequential forensic
gaffe.
THE MISSING SHIRT
Although two suspicious and potentially bloodied t-shirts
were apparently turned over to the police and logged in as
evidence during the murder investigation, only one of these—
a yellow t- shirt—was disclosed to the defense. However, the
police logged in a second, possibly blood-covered shirt and
recorded it as a blue shirt. The blue shirt was not produced to
the defense and reference to the shirt was only found when,
post-conviction, defense counsel was combing through later-
discovered police logs.
In yet another investigative contradiction, the state now
claims that the blue t-shirt was actually the yellow t-shirt that
was properly disclosed. However, the woman who found the
shirt on the side of the road not far from the crime scene and
who reported the blue t-shirt remembers it as blue. The writ-
ten log clearly reflects a blue t-shirt, and separately notes a
yellow t-shirt.
The district court concluded that the log reflecting the blue
t-shirt was produced to the defense earlier, and hence the blue
t-shirt did not constitute new evidence. Cooper claims the
page in question is not stamped in the same format as the
other police log pages produced in pre-trial discovery. No
explanation is provided for this discrepancy. Even had the
page been produced, the t-shirt itself was undeniably never
produced. Has the t-shirt gone the way of the destroyed cover-
alls? Is the blue t-shirt really the yellow t-shirt? How could a
COOPER v. BROWN 15891
shirt described as blue become yellow? Once again, bungled
records and bungled investigative work obscure the truth.
BLOOD DROP A-41
Blood drop A-41 is the most controversial and crucial
aspect of the state’s case, yet it was handled carelessly from
the time it was first acquired. To begin, no one actually
remembers finding A-41; everyone claims that someone else
pointed it out.
When originally tested, Cooper’s blood type was identified
as Type B, and subsequently A-41 was identified as Type B.
Soon after, it came to light that Cooper’s blood type was actu-
ally RB, and then A-41 was determined to be RB as well. One
criminologist changed his testimony regarding the depletion
of the sample. The criminologist originally thought he ran low
on the blood stored inside a small pill box, but later more “ap-
peared” to him that he claimed not to have seen initially. In
1991, the Supreme Court of California determined that after
the final pre-trial tests on A-41, the sample was “completely
consumed.” People v. Cooper, 809 P.2d 865, 878 (Cal. 1991).
Criminologist Daniel Gregonis, who tested Cooper’s blood,
saliva and semen, is alleged to have repeatedly mishandled
the biological evidence both pre- and post-trial. Evidence
points to the fact that Gregonis broke the seal on A-41 in
1999, potentially contaminating it, and conducted testing of
unknown source evidence specimens by placing them along-
side the samples drawn from Cooper. In state court, Gregonis
testified that he did not open the glassine envelope containing
A-41 during the time it was in his unsupervised custody.
However, photographic evidence reveals that A-41 was
opened and resealed with the initials DJG (Daniel John Gre-
gonis) and the date “8/13/99,” which was during the period
that the sample was checked out to Gregonis. After trial, Gre-
gonis also allegedly checked out and mislaid a sample of Coo-
per’s saliva. On several other occasions, Gregonis altered his
15892 COOPER v. BROWN
laboratory notes and changed his testimony about laboratory
testing. The chain of custody of the blood sample is also in
question due to mishandling by Gregonis.
To make matters worse, the manager of the San Bernadino
Sheriff’s Crime Laboratory was a heroin addict during the
time period in question and was later dismissed from his
employment for allegedly stealing heroin from the police evi-
dence cache. As in House v. Bell, “the evidentiary disarray”
and the “limited rebuttal of it in the present record, would pre-
vent reasonable jurors from placing significant reliance on the
blood evidence.” 126 S. Ct. 2064, 2083 (2006). Resting Coo-
per’s conviction on the DNA evidence, which was not before
the jury, is particularly problematic because of the extensive
evidence documenting the mishandling of the evidence.
THE WIDE AVAILABILITY OF KEDS SHOES
The Keds tennis shoes are perhaps the most damning evi-
dence against Cooper. As the prosecution stated in its opening
statement, the shoes “were supplied strictly for prison use
within the state of California and unavailable through retail
stores in California.” However, we now know that the Keds
shoes believed at trial to be issued only to prison inmates
were actually provided by various government entities,
including the Forest Service, Navy, and state hospitals, and
were available through retail catalogs.
In district court, Cooper produced a catalog, not before the
jury in 1985, that demonstrated that the shoes were available
for retail sale. According to Cooper, the widespread availabil-
ity of the shoes was known to the prosecution at the time of
trial, as it had been reported by the warden of the minimum
security prison from which Cooper escaped. But the prosecu-
tion failed to disclose this evidence. Before trial, the warden
reported to a lead investigator that the notion that the shoes
were prison-issue only was inaccurate and that the shoes were
commercially available to the public through Sears Roebuck
COOPER v. BROWN 15893
and other retail outlets. Cooper’s trial attorney confirmed that
at the time of trial he was “not aware the Pro Keds Dude ten-
nis shoes were listed for sale in a retail catalogue” and that
had he known this information he “would have featured that
fact prominently in the defense at trial.”
The habeas process does not account for lingering doubt or
new evidence that cannot leap the clear and convincing hurdle
of AEDPA. Instead, we are left with a situation in which con-
fidence in the blood sample is murky at best, and lost,
destroyed or tampered evidence cannot be factored into the
final analysis of doubt. The result is wholly discomforting,
but one that the law demands. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3050625/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30597
Plaintiff-Appellee,
v. D.C. No.
CR-05-00101-RFC
BART LINDEN HOLT,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
November 6, 2007—Seattle, Washington
Filed December 5, 2007
Before: William C. Canby, Jr., Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
15975
UNITED STATES v. HOLT 15977
COUNSEL
Cynthia K. Smith, Smith Jasper, P.C., Missoula, Montana, for
the defendant-appellant.
Eric B. Wolff and Marcia Hurd, Assistant United States
Attorneys, Billings, Montana, for the plaintiff-appellee.
15978 UNITED STATES v. HOLT
OPINION
GOULD, Circuit Judge:
Bart Linden Holt appeals his sentence following his guilty
plea conviction for coercing and enticing a minor to engage
in sexual activity in violation of 18 U.S.C. § 2422(b) and pos-
session of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm the district court’s sentence.
I
On December 7, 2004, as part of an undercover operation,
Federal Bureau of Investigation Special Agent Daniel Vier-
thaler posed as a thirteen-year-old girl in an Internet chat
room. Holt, a then forty-five-year-old podiatrist, contacted
Vierthaler through the Internet chat room, misrepresented
himself as a nineteen-year-old college student, and engaged
Vierthaler’s online persona in sexually explicit conversations.
Over the next six months, Holt continued to contact Vier-
thaler, often discussing the young age of Vierthaler’s online
persona, Holt’s desire to have sexual intercourse with Vier-
thaler’s online persona, and the fact that Holt would be crimi-
nally liable if he engaged in sexual intercourse with a minor.
On June 21, 2005, more than six months after his first con-
tact with Vierthaler, Holt revealed his true age to Vierthaler,
and on July 12, 2005, Holt revealed his true identity. On two
separate occasions, on July 26 and 27, 2005, Holt transmitted
to Vierthaler webcam footage of himself masturbating to the
point of ejaculation. Throughout July of 2005, Holt made
arrangements for a sexual encounter with Vierthaler in Bil-
lings, Montana. On August 1, 2005, Holt traveled from Mis-
soula to Billings to have sexual intercourse with Vierthaler.
After Holt arrived at the meet site, he was approached by law
enforcement. He attempted to flee but was apprehended.
UNITED STATES v. HOLT 15979
A subsequent search of Holt’s computers uncovered images
of child pornography that he had downloaded from the Inter-
net, including images of the sexual penetration of very young
children. Holt later admitted to engaging in other similar con-
versations with a girl in Great Falls, also using his webcam to
transmit sexually explicit images of himself to her.
On August 19, 2005, a federal grand jury indicted Holt. On
July 13, 2006, Holt pleaded guilty to coercing and enticing a
minor to engage in sexual activity in violation of 18 U.S.C.
§ 2422(b) and possession of child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B).
The presentence report (“PSR”) prepared in accordance
with Holt’s guilty plea calculated the base offense level for
his coercion and enticement violation at 24 and applied two
enhancements, a two-level enhancement for misrepresentation
of identity pursuant to U.S.S.G. § 2G1.3(b)(2)(A) and a two-
level enhancement for use of a computer pursuant to U.S.S.G.
§ 2G1.3(b)(3)(A), to reach an adjusted offense level of 28.
The PSR calculated the base offense level for Holt’s posses-
sion of child pornography violation at 18, with five enhance-
ments, including a two-level enhancement for minors under
the age of twelve pursuant to U.S.S.G. § 2G2.2(b)(2), a four-
level enhancement for sadistic or masochistic conduct pursu-
ant to U.S.S.G. § 2G2.2(b)(4), and a two-level enhancement
for vulnerable victim pursuant to U.S.S.G. § 3A1.1(b), mak-
ing the adjusted level for this offense 33. Holt received a
three-level deduction for his early acceptance of responsibility
and timely notification of plea, making Holt’s total offense
level 31 and his final guideline range 121 to 151 months.
On November 2, 2006, Holt appeared for sentencing and
objected to the advisory guideline calculation on two grounds.
First, Holt argued that the district court improperly applied a
two-level enhancement for knowing misrepresentation of
identity pursuant to U.S.S.G. § 2G1.3(b)(2)(A). Holt admitted
that he initially misidentified himself as a nineteen-year-old
15980 UNITED STATES v. HOLT
college student but contended that, because he revealed his
true name and age before sending Vierthaler webcam footage
of his masturbation and before traveling to Billings to meet
with Vierthaler, he had not misrepresented his identity in
order to coerce or entice a minor to engage in sexual activity.
The district court overruled this objection, finding that Holt
initiated the online conversations in December of 2004 and
did not reveal his true age until after he had engaged in six
months of “grooming what he thought was a 13-year old
minor.”
Holt’s second objection was to the vulnerable victim
adjustment contained in U.S.S.G. § 3A1.1(b). Holt argued that
the district court would be double counting if it applied the
four-level enhancement for the sadistic or masochistic nature
of some of the images and the two-level enhancement for vul-
nerable victim based on the small size of the victims and the
pain they must have experienced due to the sexual penetra-
tion. The district court overruled Holt’s objection, supporting
its decision with the young age of the children, our holding in
United States v. Wright, 373 F.3d 935 (9th Cir. 2004), and
Holt’s occupation as a doctor, which provided him with spe-
cialized knowledge of human anatomy.
On November 7, 2006, the district court sentenced Holt to
120 months’ imprisonment and fifteen years of supervised
release. Holt timely appealed his sentence.
II
We review de novo the district court’s interpretation of the
United States Sentencing Guidelines (“the Guidelines”),
review for clear error the district court’s factual determina-
tions, and review for abuse of discretion the district court’s
applications of the Guidelines to the facts. United States v.
Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
UNITED STATES v. HOLT 15981
III
[1] Holt opposes the district court’s enhancement of his
sentence on two grounds. First, Holt contests the district
court’s application of a two-level enhancement for misrepre-
sentation of identity to the base level of his coercion and
enticement offense. The Guidelines suggest applying this
enhancement if “the offense involved the knowing misrepre-
sentation of a participant’s identity to persuade, induce,
entice, coerce, or facilitate the travel of, a minor to engage in
prohibited sexual conduct.” U.S.S.G. § 2G1.3(b)(2)(A). Holt
argues that the enhancement was improperly applied to his
base offense level because he revealed his true age and iden-
tity before engaging in any unlawful conduct. We hold, how-
ever, that the district court properly applied the two-level
enhancement because Holt initially identified himself as a
nineteen-year-old college student and revealed his true age
and identity only after more than six months of sexually
explicit Internet chats with an undercover officer who had
portrayed himself in his online persona as a thirteen-year-old
girl. The district court reasonably could have concluded that
Holt was misrepresenting his identity in a prolonged effort to
groom what he thought was a thirteen-year-old girl for illicit
sexual contact.
Second, Holt challenges the district court’s enhancement of
the base level of his possession of child pornography offense
by application of, among other enhancements, a two-level
enhancement for vulnerable victim pursuant to U.S.S.G.
§ 3A1.1(b) and a four-level enhancement for the sadistic or
masochistic conduct portrayed in the images pursuant to
U.S.S.G. § 2G2.2(b)(4). Holt argues that the district court
improperly “double counted” by applying both enhancements
for essentially the same harm—namely, the extreme pain that
necessarily would have been experienced by a very young
child depicted in the pornography as being sexually pene-
trated.
15982 UNITED STATES v. HOLT
[2] “Impermissible double counting occurs when one part
of the Guidelines is applied to increase a defendant’s punish-
ment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guide-
lines.” United States v. Nagra, 147 F.3d 875, 883 (9th Cir.
1998) (internal quotation marks omitted). However, “[d]ouble
counting is not always impermissible; it is sometimes autho-
rized and intended by the Sentencing Guidelines when each
invocation of the behavior serves a unique purpose under the
Guidelines.” United States v. Syrax, 235 F.3d 422, 428 (9th
Cir. 2000) (internal quotation marks omitted).
[3] We have previously held that a district court can apply
the sadistic conduct enhancement any time images portray the
penetration of prepubescent children by adult males because
such images are necessarily pleasurable for the participant and
painful for the child. United States v. Rearden, 349 F.3d 608,
614-15 (9th Cir. 2003). Here, it follows even more strongly
that the district court properly applied the enhancement where
at least one image in Holt’s possession depicted the penetra-
tion of a two- or three-year-old child by an adult male.
[4] A district court can apply the vulnerable victim
enhancement where a child is so young and small that he or
she is less able to resist than other child victims of pornogra-
phy and will experience greater pain from sexual penetration.
See Wright, 373 F.3d at 943-44 (holding that the district
court’s application of both the enhancement for children
under twelve and the enhancement for vulnerable victim did
not constitute improper double counting). Although Holt
argues that we should distinguish Wright on the ground that
the victim in Wright was an infant, whereas here a toddler vic-
tim could have walked away,1 that argument is so weak as to
1
“[T]he victim in Wright was 11 months old and therefore unable to
walk or talk. The victims who the District Court found to be vulnerable
in Mr. Holt’s case were two to three years old and presumably able to
walk and talk.”
UNITED STATES v. HOLT 15983
be frivolous. There can be no serious dispute that the two- or
three-year-old child shown being sexually penetrated in the
pornography was not in a position of sufficient strength to
resist the sexual abuse.
[5] Both the sadistic conduct and vulnerable victim
enhancements account for the pain experienced by a young,
small victim of child pornography, but the enhancements also
account for distinct characteristics of the crime: the sadistic
conduct enhancement accounts for the pleasure necessarily
experienced by the perpetrator, while the vulnerable victim
enhancement accounts for the inability of the victim to resist
sexual abuse. Because the two enhancements account for
these distinct wrongs, it was proper, and no abuse of discre-
tion, for the district court to apply both to the challenged
criminal conduct. See Nagra, 147 F.3d at 883.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/708333/ | 70 F.3d 1257
David J. Ryznerv.PA Board of Probation & Parole, Rober Taylor
NO. 94-7197
United States Court of Appeals,Third Circuit.
Oct 26, 1995
Appeal From: M.D.Pa., No. 94-00119
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3238570/ | The parties to this appeal make and file in this court an agreement that the judgment be reversed, and that judgment be entered here against appellant for $25, and costs in the court below.
Such judgment cannot be entered here. In the first place, if the judgment is reversed and the cause remanded, the cause would then be out of this court, and we would have no authority to enter a judgment against the appellant for a fine and costs.
In the next place, this court will not put the lower court in error by an agreement of counsel when no error appears. Boss Livery Co. v. Griffith, 17 Ala. App. 474, 85 So. 849.
However, parties to civil actions may by written agreement withdraw an appeal, in which case the cause is returned to the lower court for proper disposition.
Taking the agreement on file to be a settlement between the parties, the cause is remanded to the circuit court for such order as the parties may desire.
Cause is remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2897392/ | NO. 07-08-0123-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 30, 2008
______________________________
In re MARY JANE BARTON,
Relator
_________________________________
Original Proceeding
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE
, JJ.
Pending before the court is a petition for writ of mandamus filed by Mary Jane Barton. She requests that we order the Honorable John B. Board, 181
st
Judicial District Court (trial court) to amend its order granting a partial new trial to include retrying the “issue of [B.B.’s] domicile.” We deny the petition.
Per its final decree signed on December 7, 2006, the trial court granted Mary Jane and William Barton a divorce. So too did it address who would have custody of their only child, B.B. Both were named joint conservators. Yet, the trial court ordered that “the primary residence of the child shall be Potter or Randall County,” that the child could not be removed from those counties “for the purpose of changing the primary residence of the child” without court approval, that Mary Jane “shall have the exclusive right to designate the child’s primary residence within Potter or Randall County,” and that “this geographical restriction on the residence . . . shall be lifted if . . . .” William moves from those counties.
Within a month of the judgment’s execution, William sought a new trial requesting “that primary custody of the child be modified to give [William] the right to determine the residence of the child until such time as [Mary Jane] gives her official notice of change of residence . . .” to Potter or Randall Counties. Apparently, William lived within the environs of Amarillo, Texas, while Mary Jane lived in Gilmer, Texas. Furthermore, a change in custody was needed, he believed, because Mary Jane had not taken sufficient steps to change her “‘permanent residence’” to Amarillo; that is, she had yet to buy a house, lease an apartment, or make arrangements for the child’s daycare or preschool. Nor was she seeking employment in the area; instead, she continued to work in Gilmer. Given these factual allegations and the tenor of his motion, we see that William was not complaining about the child having to live in either Randall or Potter County. Nor was he complaining about he and his ex-wife having joint custody over the child. Indeed, the concept of his wife having the “exclusive right to designate the child’s primary residence within” either county was not truly at issue. Rather, and until Mary Jane ultimately exercised her power to determine where in Randall or Potter Counties the child would live, he wanted to have the authority to designate the place. New trial was granted only to that extent, via an order signed on February 16, 2007.
On March 14, 2007, Mary Jane moved the trial court to amend its order granting new trial to include the matter forming the basis of her request for mandamus. Again, that matter is whether new trial should “include . . . the issue of [B.B.’s] domicile,” that is, whether B.B.’s home should be geographically limited to some locale within Randall or Potter Counties. This motion was denied.
Years ago we held that an appellate court generally will not review, by mandamus, an order granting new trial.
City of Perryton v. Boyer
, 423 S.W.2d 170, 171 (Tex. Civ. App.–Amarillo 1968, mandamus overruled). Only two exceptions to the rule have been recognized. One involves situations in which the order granting new trial is void (such as when it is entered after the trial court’s jurisdiction expired), and the other encompasses situations wherein the trial court orders new trial simply because the jury’s answers to special issues were conflicting.
Id.
,
quoting, Johnson v. Court of Civil Appeals
, 162 Tex. 613, 350 S.W.2d 330 (1961). Moreover, this rule remains viable.
See Stolhandske v. Stern,
14 S.W.3d 810, 815-16 (Tex. App.–Houston [1
st
Dist.] 2000, pet. denied) (reiterating the same rule). Here, Mary Jane does not contend that the order granting new trial is void; nor does it appear so given that it was entered before the trial court’s plenary jurisdiction ended. As for conflicting jury answers, that ground appears nowhere in either the order or motion for new trial. Consequently, we cannot interfere with the trial court’s discretion in granting the partial new trial.
We further note that we may deny mandamus relief to a dilatory party.
In re Users Sys. Servs., Inc.
22 S.W.3d 331, 337 (Tex. 1999). According to the documents appended to Mary Jane’s motion, she waited almost three months to seek mandamus relief after the trial court opted not to reconsider its decision. Moreover, she allowed approximately a month to lapse between the time the trial court ordered a partial new trial and the date she asked it to reconsider its decision. Why she so delayed in either situation went unexplained. And, this is troublesome given that the needs and stability of a child are implicated.
We also note that Mary Jane has cited us to no authority holding that a trial court cannot order a new trial simply on the question of which parent should be given the exclusive right to establish the child’s primary residence within a particular county. Nor did our own research uncover such authority. So, it is difficult for us to conclude that the trial court engaged in some
clear
abuse of discretion, which is required before we can issue mandamus relief.
Walker v. Packer
, 827 S.W.2d 833, 839 (Tex. 1992).
Finally, it appears that the question of who has the right to establish the child’s primary residence differs from whether to impose a geographic limitation on the exercise of that right. The former affords one parent the discretion to follow his or her own choices while the latter assures somewhat that the interests of the other parent in interacting with the child will be protected. They are not the same issue and the evidence pertinent to one need not be the same as the evidence pertinent to the other. So, contrary to Mary Jane’s contention, we do not necessarily agree that it would be “unfair” to rehear one but not the other.
Accordingly, the petition is denied.
Brian Quinn
Chief Justice | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898650/ | NO. 07-08-0353-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 7, 2009
                                       ______________________________
GINGER BROWN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;
NO. 1152; HONORABLE STEVEN EMMERT, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellant, Ginger Sue Brown, was convicted of aggravated sexual assault of a child
and subsequently sentenced to 10 years in the Institutional Division of the Texas
Department of Criminal Justice. By two issues, appellant contends that the trial judge
committed reversible error by 1) allowing hearsay testimony of a forensic interviewer to be
admitted before the jury, and 2) refusing to admit the previously recorded statement of
appellantâs co-defendant into evidence. We affirm.
Factual and Procedural Background
          On March 5, 2006, Jimmy Brown, the husband and co-defendant of appellant, was
arrested by Lipscomb County Deputy Jessica Kay for violating a protective order. While
being transported to jail, Brown began relaying information to Kay of an alleged sexual
assault of appellantâs son, Joey, that had occurred on or about March 2, 2002. After
arriving at the Lipscomb County jail, Brown gave two written statements and a video taped
statement to deputies. After receiving this information, the Lipscomb County Sheriffâs
Office dispatched another deputy, Jason McCarthy, to pick up the appellant for
questioning. Upon being brought to the jail, and after being advised of her right to remain
silent, appellant gave two written statements and a video taped statement admitting her
participation in the sexual assault. During her interviews, appellant stated that it was
Jimmyâs idea for her to have sex with her son. She further stated that Jimmy was
physically and emotionally abusive to her and the children. The statements did not,
however, contend that on the night in question that Jimmy physically forced her to have sex
with her son.
          At trial, in addition to the deputies who took the statements in the case, the State
produced the testimony of Shelly Bohannon, a forensic interviewer with the Bridge
Childrenâs Advocacy Center in Amarillo. Bohannon was qualified as an expert forensic
interviewer. She testified about her interviews of Joey. It was a portion of Bohannonâs
testimony that gave rise to appellantâs first contention.
          The State also presented the testimony of the co-defendant, Jimmy, to the jury.
Jimmy had given a number of statements to the authorities that contained inconsistencies.
During appellantâs presentation of the evidence, Jimmy was recalled to the witness stand
and those inconsistencies were explored. At one point, appellant attempted to admit the
video taped statement given by Jimmy. From the record, it appeared that the offer was
made in an attempt to impeach Jimmyâs testimony. The trial court sustained the Stateâs
objection to the introduction of the statement. The exclusion of the video taped statement
is the basis of appellantâs second contention.
          We disagree with appellantâs contentions and will affirm the judgment of the trial
court. Both of appellantâs contentions deal with the trial courtâs evidentiary rulings.
Standard of Review
          We review a trial court's decision regarding the admissibility of evidence under an
abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.
2007). Because trial courts are in the best position to decide questions of admissibility,
appellate courts will uphold a trial court's admissibility decision when that decision is within
the zone of reasonable disagreement. Id. An appellate court may not reverse a trial
court's decision regarding the admissibility of evidence solely because the appellate court
disagrees with the decision. Id. A trial court abuses its discretion when its decision lies
outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372,
391 (Tex.Crim.App. 1990) (op. on rehâg).
Â
Hearsay Objection to Bohannonâs Testimony
          Appellant lodged hearsay objections to much of Bohannonâs testimony. To properly
consider these objections, we must first determine whether or not Bohannon was offered
as an expert. An expert is someone whose âscientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue, . . . .â See Tex. R. Evid. 702.
The record reflects that the State spent a substantial
amount of testimonial time going over the witnessâs education, training, and experience as
a forensic interviewer. Additionally, Bohannon testified about the procedure for conducting
a valid forensic interview, especially as it related to child victims of abuse. After a hearing
outside the presence of the jury, the trial court accepted Bohannon as an expert witness
on the subject of forensic interviews. Additionally, the State had filed a notice pursuant to
the Texas Code of Criminal Procedure to allow Bohannonâs testimony to be received as
an âoutcry witness.â See Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 2005). At the
conclusion of the hearing, the record reflects that the trial court had ruled that Bohannonâs
testimony could also be received as an âoutcry witness.â Appellantâs objections as to
hearsay purport to find error with each ruling by the trial court.
          The following is the portion of Bohannonâs testimony that appellant objects to on
appeal. (All questions were by the State on direct examination.)
Q. Okay. So he said that his mom had not abused him, is that right?
Â
A. Thatâs correct. Thatâs what he said.
Â
Q. Okay. Did he talk about seeing the Defendantâs lingerie?
Â
A. He talked about someâsome clothes that may have holes in them, but I
donât know if he was talking about lingerie or day wear or really what that
was.
Â
Q. Did he ever express to you concerns that his mother would walk around
in provocative clothing?
Â
A. No.
Â
Q. Did he ever say he saw her in the clothing?
A. In provocative, no.
Â
Q. Okay. Now did he discuss the role that the Co-Defendant Jimmy Brown
played?
Â
A. In which?
Â
Q. In the sexual assault.
Â
A. He - - he talked about Jimmy having his mother, Joeyâs mother go and get
him out of his bed and bring him into her bedroom and place him in the bed
with her and that he sat in a chair or recliner next to the bed and just
watched.
Â
Q. And he said he was just watching. Did he say what his mother was
doing?
Â
A. He - - he said he couldnât remember.
Â
Q. Did he ever give you any details as to the sexual assault by the Defendant
and the Co-Defendant against him?
Â
A. No, he never did.
Â
Q. Is it - - but he never specifically said about his motherâs private parts or
anything happening to him by his mother; is that correct?
Â
A. No he denied that.
Â
Q. Okay. Ms. Bohannon, based on your training and experience and the
number of forensic interviews that you have had with children, is it common
or uncommon for children not to disclose to you whatâs been happening?
Â
A. We see that pretty frequently.
Â
Q. Okay. Is it common or uncommon for children to only partially disclose?
Â
A. We see that quite a bit too, yes.
Â
          Initially, we observe that whether or not Bohannon was an âoutcry witnessâ may be
determined by whether or not the statements made by Joey were sufficient to describe the
alleged sexual assault. See Tex. Crim. Proc. Code Ann. art. 38.072 § 2. A review of the
objected to testimony would lead to the conclusion that it did not describe the assault, in
fact, Joey said he could not remember or it did not happen. See Garcia v. State, 792
S.W.2d 88, 90-91 (Tex.Crim.App. 1990) (stating that the statement to an outcry witness
must describe the alleged offense in some discernable manner as opposed to a general
allusion that something in the area or child abuse was going on). Here the child did not
give any testimony that could be viewed to sustain the requirement of the statute.
          However, this is not the end of our inquiry. The State posits that the objected to
evidence was not offered for the truth of the matters asserted, rather they were offered to
establish the underlying facts or data to support the expertâs opinion about the reluctance
of the victim to testify. In this regard it appears that the jury could use this information to
evaluate Bohannonâs testimony that child victims commonly are reluctant to disclose the
facts of the assault and, in fact, may deny or only partially disclose any information about
the event. See Rule 705(a); Austin v. State, 222 S.W.3d 801, 812 (Tex.App.âHouston [14th
Dist.] 2007, pet. refâd). Accordingly, the evidence was admissible for that purpose.
          Appellant, however, contends that, even if it was admissible for that purpose, there
was a danger that the jury would use the information for other purposes than the evaluation
of the expertâs opinion. See Rule 705(d). Our review of the record does not support
appellantâs contention. This evidence was given to explain the victimâs reluctance to
discuss the events at issue. Further, appellantâs statements admitting the sexual assault
were admitted prior to Bohannonâs testimony. Therefore, there could be little danger of the
jury using the underlying interview to convict appellant of the offense for which she had
already confessed in written and video taped statements. Finally, the record further
reflects that the victim later testified before the jury and testified to some of the events of
the assault but again stated that he could not remember some of the events. Based on
the record before us, we cannot say the trial court abused its discretion in admitting the
testimony of Bohannon. See Cameron, 241 S.W.3d at 19. Accordingly, appellantâs first
issue is overruled.
Previously Recorded Statement of Jimmy Brown
          Appellant next contends that the trial court committed reversible error in refusing to
admit the previously recorded statement of Jimmy Brown into evidence. According to
appellant, the statement was admissible under the provisions of Rule 803(24) as an
admission against interest. See Rule 803(24). However, at trial appellant offered the
statement as a prior inconsistent statement. See Rule 801(e)(1)(A). As such, appellantâs
complaint on appeal does not comport with his objection at trial. See Reyna v. State, 168
S.W.3d 173, 179 (Tex.Crim.App. 2005) (an offer of evidence under one theory does not
preserve an appeal that the evidence was admissible under a different theory).
Accordingly, nothing has been preserved for appeal. See Tex. R. App. P. 33.1(a)(1)(A).
Therefore, appellantâs second issue is overruled.
Conclusion
          Having overruled appellantâs issues, we affirm the judgment of the trial court.
Â
                                                                Mackey K. Hancock
                                                                         Justice
Â
Do not publish.
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NO. 07-09-00391-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL B
Â
OCTOBER
15, 2010
Â
Â
ANTHONY C. PARSON, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 364TH DISTRICT COURT OF LUBBOCK
COUNTY;
Â
NO. 2009-423,019; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
Â
Â
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
Â
Â
MEMORANDUM OPINION
Â
Appellant, Anthony C. Parson, was
convicted of attempted[1]
burglary of a habitation with intent to commit murder or aggravated assault.[2]Â The indictment included punishment enhancment
allegations of two prior felony convictions.[3]Â At the punishment hearing, appellant pleaded
true to the enhancement allegations in the indictment and the jury assessed
appellantÂs punishment at confinement in the Institutional Division of the
Texas Department of Criminal Justice for 50 years. Appellant subsequently filed this appeal
contending that the evidence was legally insufficient to support the conviction
and that the trial court had committed reversible error in allowing the State
to introduce evidence of an extraneous offense.Â
We will affirm the conviction.
Factual and Procedural Background
Appellant and Kathleen McCullough,
the victim, had previously had a dating relationship. Appellant and McCullough had broken up before
the events of October 10, 2008. Earlier
in the day on October 10, before the events that resulted in appellantÂs
conviction, McCullough was doing her laundry at a laundromat when appellant came
in and began yelling at McCullough. According
to McCulloughÂs testimony, appellant continued walking toward her and
threatening her. McCullough stated she
was backing away from appellant when he grabbed her keys. He then left the laundromat in the truck she
had borrowed from her brother. McCullough
called a relative who came to the laundromat and took her back to her
apartment. Upon arriving at her
apartment, McCullough found the front door unlocked. While McCullough was trying to determine if
it was safe to go into her apartment, appellant drove up in the truck. Appellant again began shouting at McCullough
and was threatening her. After a short
time, appellant left the apartment complex.Â
McCullough eventually went inside her apartment.
A few hours later (the record is not
clear as to exactly how much time passed) appellant again returned to the
apartment complex. Appellant went to
McCulloughÂs apartment door and tried to gain entry. Upon finding the door locked he began to beat
and kick on the door and shout threats at McCullough. McCullough became afraid for her safety and
called 911. While talking to the 911
operator, McCullough heard a window break, and she retreated to the
closet. At some point, McCullough heard
more windows being broken and specifically heard appellant say, ÂBitch, IÂm
going to kill you.ÂÂ
The police arrived in response to the
911 call and found appellant outside the apartment. Appellant was detained and placed in the back
of Officer Travis DensonÂs police car. When
appellant was placed in the rear seat of the police car, Denson activated the
video recording device and placed the camera so as to record appellant. A copy of the video was played for the
jury. In the video, appellant continued
to curse and threaten McCullough. Upon
going back to the door of the apartment, Denson observed that the couch had
been pulled in front of the door and, upon entry, observed the broken
windows.Â
Denson then made the decision to
arrest appellant and transport him to the City of Lubbock holding
facility. During transportation to the
city holding facility, appellant continued to threaten to kill McCullough. Upon arrival at the city facility, appellant
got into a fight with two other inmates.Â
This fight was the subject matter of the extraneous offense of assault
that the trial court allowed into evidence before the jury. AppellantÂs trial counsel objected to the
introduction of the extraneous offense.Â
However, the trial court overruled the objection and allowed the
testimony before the jury.
The jury subsequently convicted
appellant as charged in the indictment and sentenced him to serve 50 years in
the ID-TDCJ. Appellant appeals
contending that the evidence is legally insufficient to prove that appellant
had the requisite intent at the time of the attempted entry into the
apartment. Additionally, appellant
contends that the trial court abused its discretion in allowing evidence of the
extraneous offense to come before the jury.Â
We will affirm the judgment of the trial court.Â
Legal Sufficiency of the Evidence
AppellantÂs first issue contends that
the evidence was legally insufficient to sustain the judgment. Specifically, appellant challenges the legal
sufficiency of the evidence to prove the requisite intent of appellant at the
time of the attempted burglary.
Standard of Review
           A legal sufficiency review consists of reviewing 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross
v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). However, the jury is the sole judge of the
weight and credibility of the evidence. Â
Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996)
(citing Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.
1991)). We resolve inconsistencies in
the evidence in favor of the verdict. Curry
v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as probative as
direct evidence in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49
(Tex.Crim.App. 2004). Furthermore, the
standard of review is the same for both direct and circumstantial
evidence. Id.
Â
Â
Analysis
           In
order to convict for the offense of attempted burglary of a habitation with
intent to commit murder or aggravated assault, the State must prove that
appellant attempted to enter McCulloughÂs habitation without her effective
consent with the intent to commit the offense of murder or aggravated
assault. There is no argument from
appellant regarding the elements of attempt, consent, or habitation. Appellant specifically argues that there is
legally insufficient evidence of his intent to commit murder or aggravated
assault. Accordingly, our analysis will
be confined to that area of the evidence.
           When
considering the question of intent to commit the act charged, we must first
realize that a personÂs intent is within his own mind. See Norwood v. State, 135
Tex. Crim. 406, 120 S.W.2d 806, 809 (1938).Â
Next, in an effort to ascertain intent, we may look to the outward
expression of that intent through the words, acts, and conduct of the
individual in question. Id. Finally, it is from all of these circumstances
that we determine his intent. See
Smith v. State, 965 S.W.2d 509, 518 (Tex.Crim.App. 1998) (citing Gray
v. State, 55 Tex. Crim. 90, 114 S.W.635, 645-46 (1908)).Â
           When
these considerations are applied to the facts of this case, we find that the record
reveals: 1) appellant accosted McCullough on two occasions on the day in
question; 2) each time appellant approached McCullough, he did so in a
threatening manner stating it was his intent to harm or kill her; 3) appellant
was detained outside of McCulloughÂs apartment while shouting threats; 4) the
windows had been broken out of McCulloughÂs apartment, and entry had been
attempted by kicking the door in; 5) McCullough recognized appellant as the one
attempting to get in the apartment; 6) after appellantÂs arrest, he continued
to make threats to kill McCullough. In
short, from the observation of appellantÂs conduct and speech, a rational jury
could have concluded beyond a reasonable doubt that appellant intended to kill
or seriously injure McCullough. See
Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Therefore, the evidence was legally
sufficient. See Jackson,
443 U.S. at 319; Ross, 133 S.W.3d at 620. AppellantÂs first issue is overruled.
Extraneous Offense
           AppellantÂs
last issue deals with the trial courtÂs admission of extraneous offense
testimony. The trial court permitted the
StateÂs attorney to ask Denson if appellant had assaulted two other inmates
upon arrival at the City of Lubbock holding facility. Â Appellant contends that the admission of the
evidence was an abuse of discretion because such testimony was not relevant,
and even if relevant, its probative value was clearly outweighed by its
prejudicial impact.Â
Standard of Review
           We
review a trial courtÂs decision to admit or exclude evidence under an abuse of
discretion standard. See McCarty
v. State, 257 S.W.3d 238, 239 (Tex.Crim.App. 2009). A trial court abuses its discretion when the
decision to admit the evidence in question lies outside the zone of reasonable
disagreement. Id.Â
Law of Extraneous Offenses
           As
a legal maxim, extraneous offenses are not admissible during a criminal trial,
especially to prove the character of a defendant and that the defendant acted
in conformity with that character trait at the time in question. See Tex.
R. Evid. 404(b).[4]Â There are exceptions to this general
prohibition. Specifically, extraneous
offense evidence is admissible if it tends to prove or disprove an element of
the offense. See De La Paz v.
State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009). This is the inquiry into the relevance of the
evidence. See Rule 404(b); De
La Paz, 279 S.W.3d at 343. The
proponent for admissibility of the extraneous offense evidence must carry the
burden of establishing the admissibility of such evidence. See Montgomery v. State, 810
S.W.2d 372, 387 (Tex.Crim.App. 1991) (op. on rehÂg). Once the relevance is established, the
evidence may still be excluded if its probative value is substantially
outweighed by its unfair prejudicial effect.Â
Rule 403; Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.
1997).Â
           If
a rule 403 objection is made, the trial judge must then conduct a balancing
test to ascertain whether or not the probative value is substantially
outweighed by the prejudicial impact of the proffered extraneous offense. Id.Â
In conducting this balancing test the trial court considers the
following: 1) how compellingly the extraneous offense evidence serves to make
the fact of consequence more or less probable; 2) the potential for this
evidence to impress the jury in some irrational but indelible way; 3) the time
required to develop the evidence; and 4) the force of the proponentÂs need for
the evidence. Id.Â
Â
Analysis
           Our
first inquiry is whether or not the proffered extraneous evidence is
relevant. Rule 404(b); De La Paz,
279 S.W.3d at 343. A review of the
record reflects that the State had a substantial amount of evidence that bore
upon the intent of appellant to murder or assault McCullough at the time he
attempted the unauthorized entry into the apartment. Further, the quality of the evidence in
demonstrating the intent of appellant was much more direct and persuasive than
evidence of assaults involving strangers at some time removed from the events
that led to appellantÂs arrest. A
further review of the closing arguments reveals that even the proponent of the
evidence must have thought that it was not particularly important, for it is
barely even mentioned during those arguments.Â
What was the relevance of this evidence, especially in light of the
entire record? Our review yields the
conclusion that this extraneous offense evidence was only minimally
relevant. For purposes of this opinion,
we will treat the evidence as relevant, as it did have some propensity to prove
the element of intent. See De
La Paz, 279 S.W.3d at 343.
           Therefore,
we now turn to the balancing test pursuant to rule 403. Santellan, 939 S.W.2d at 169. Our first inquiry into the strength of the
evidence results in a determination that the evidence in question, a subsequent
assault of other inmates at a time after the offense being considered, is only
minimally compelling. See id. In addition, we find the force of the StateÂs
need for this evidence to be barely above negligible. See id. The presentation of the evidence required
only a minimal amount of time, and, to that extent, did not detract the jury
from the real issues at hand. See
id. However, when you review the
entire record, the most that can be said for this extraneous offense evidence
is that it proved appellantÂs propensity to be aggressive and perpetrate
assaults. Thus, it did have the
potential for impressing the jury in an irrational but indelible way. See id. As such, this evidence should not have been
placed before the jury and to do so was error.Â
Rule 403.Â
However, our finding that the
admission of the evidence was error does not end the inquiry. Rather, we must continue the inquiry to determine
whether the admission had an effect on appellantÂs substantial rights by a Rule
44.2(b) harm analysis for non-constitutional errors. See Tex.
R. App. P. 44.2(b);[5]
Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App. 2005). A substantial right is implicated when the
error had a substantial and injurious effect on the juryÂs verdict. Haley, 173 S.W.3d at 518. In order to ascertain the effect the error
may have had on the juryÂs verdict, we are directed to consider everything in
the record, including all of the evidence received by the jury and how the
alleged error might be considered in connection with other evidence supporting
the verdict. See id.
When we apply the analysis required
to the facts of this case, we find that we have a significant amount of
evidence that went to the issue of appellantÂs intent. Further, the proponent of the evidence in
question mentioned the objected-to evidence only minimally during closing
arguments. A complete review of the
evidence leads us to the conclusion that the error in admitting the evidence of
the assaults at the city holding facility did not affect appellantÂs
substantial rights. See Rule
44.2(b). Therefore, the error was
harmless. See Haley, 173
S.W.3d at 518. Accordingly, appellantÂs
final issue is overruled.
Conclusion
Having overruled appellantÂs issues,
we affirm the judgment of the trial court.
Â
                                                                                               Mackey
K. Hancock
                                                                                                           Justice
Â
Do
not publish.Â
[1]
See
Tex. Penal Code Ann. § 15.01(a)
(Vernon 2003).
Â
[2]
See
id. § 30.02(a)(1) (Vernon 2003).
Â
[3] See id. § 12.42(d) (Vernon. Supp.
2010), § 30.02(d) (Vernon 2003).
[4]
Further reference to the Texas Rules of Evidence
will be by reference to ÂRule __Â or Ârule ___.Â
[5]
Rule of Appellate Procedure 44.2 provides:
Â
(a)Â Constitutional Error.Â
If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a
judgment of conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction or
punishment.
Â
(b)Â Other Errors.Â
Any other error, defect, irregularity, or variance that does not affect
the substantial rights must be disregarded. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892615/ | NO. 07-04-0513-CR
NO. 07-04-0514-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 17, 2005
______________________________
GUSTAVO RAMIREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B15475-0404 & 15478-0404; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J. (1)
MEMORANDUM OPINION
Pursuant to pleas of guilty, appellant Gustavo Ramirez was convicted of aggravated
sexual assault in cause number B15475-0404 and sentenced to 12 years confinement and
a $2,000 fine and convicted of burglary in cause number B15478-0404 and sentenced to
two years confinement and a $1,000 fine.
The clerk's records in these appeals reflect that the trial court entered certifications
of defendant's right to appeal in which it certified these cases were plea bargain cases with
no right of appeal. By letter dated February 16, 2005, this Court notified appellant that the
certifications indicate no right of appeal and requested a response by March 7, 2005, noting
that failure to file amended certifications showing a right of appeal or failure to provide other
grounds for continuing the appeals would result in dismissal. See Tex. R. App. 25.2(a)(2)
& (d); see also Stowe v. State, 124 S.W.3d 228, 232 (Tex.App.-El Paso 2003, no pet.).
Appellant did not respond and no amended certifications indicating a right to appeal have
been filed in a supplemental record. Thus, we dismiss these appeals.
Accordingly, these appeals are dismissed. (2)
Don H. Reavis
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. The certification filed in cause number 07-04-0512-CR, an appeal from a revocation
order, indicates a right of appeal and was abated to the trial court for further proceedings.
g 1"/>
NO. 07-09-0135-CV
IN
THE COURT OF APPEALS
FOR THE
SEVENTH DISTRICT OF TEXAS
AT
AMARILLO
PANEL
D
APRIL 27, 2010
______________________________
Estate of JERRY DON CATLIN, Deceased
______________________________
FROM THE 64TH DISTRICT
COURT OF HALE COUNTY;
NO. A35890-0802; HON. ROBERT
W. KINKAID, JR., PRESIDING
____________________________________
Opinion
____________________________________
Before QUINN, C.J., and
CAMPBELL and PIRTLE, JJ.
This appeal concerns the interpretation of a lost will
executed by Jerry Don Catlin (Catlin Sr.) and which created a testamentary
trust. A copy of the document was probated
in its stead. The testators son, Jerry
Don Catlin, II, (Junior) challenged the effort of Douglas Glenn Barnes (his
stepbrother) to probate the document.
Junior lost the challenge and now appeals. His two issues involve the sufficiency of the
evidence underlying the trial courts conclusion that the original will was
lost and the accuracy of the trial courts interpretation of the document. For reasons which will be discussed below, we
affirm the judgment.
Issue One Lost Will and
Probate of a Copy
Junior initially asserts that there was insufficient
evidence to establish a cause of the non-production of the Will. This was allegedly so because the proponent
of the will . . . [Barnes] had the burden of proof and the presumption that the
will was revoked to overcome. And, saying
we looked and we can not find it was not enough, in his view. Thus, Barnes supposedly failed to satisfy the
statutory requirements authorizing the probate of a copy. We overrule the issue.
According to §85 of the Texas Probate Code,
A written will which cannot be produced in
court shall be proved in the same manner as provided in the preceding Section
for an attested written will or an holographic will, as the case may be, and
the same amount and character of testimony shall be required to prove such will
as is required to prove a written will produced in court; but, in addition thereto, the cause of its
non-production must be proved, and such cause must be sufficient to satisfy the
court that it cannot by any reasonable diligence be produced, and the
contents of such will must be substantially proved by the testimony of a
credible witness who has read the will, has heard the will read, or can
identify a copy of the will.
Tex.
Prob. Code Ann. §85 (Vernon Supp. 2009)
(emphasis added). This provision
establishes a method by which a copy of a will may be probated when the
original cannot be found. The elements
of the statute in play here are those requiring the wills proponent to prove
the cause of its non-production and that it could not be produced through
the use of any reasonable diligence.
The appellate
record before us discloses that the will purporting
to be the final testament of Catlin Sr. was represented via a copy marked and
admitted as Exhibit 1. Furthermore, the
attorney who drafted it attested that Exhibit 1 was an unsigned duplicate of
the actual document that Catlin Sr. executed.
Two witnesses present at its execution also identified the exhibit as a
copy of Catlin Sr.s last will. One further
stated that had Exhibit 1 merely been a draft of the final will, as opposed to
an actual copy, it would have been marked draft. However, because it was marked copy it was
a duplicate of the actual, executed will.
Diane King, Catlin
Sr.s stepdaughter, also testified that she had spoken to her stepfather about
his will. He informed her that he wanted
to make some changes to it and was acquiring information to do so. However, those changes were not made before
his death. She further stated that she
searched for his will after he died. Her
search encompassed both his home and his place of business, Oswald
Printing. Though the original was never
found, a copy represented by Exhibit 1 was.
The latter was discovered in Catlin Sr.s briefcase along with documents
relating to the estates of his mother and his pre-deceased wife, Doris. She further attested that her search uncovered
no other item purporting to be Catlin Sr.s last will.
Barnes also
testified about the effort undertaken to uncover the document. Those looking for it went through his office
at the house and at Oswald Printing, he said. So too did they go to every bank in town,
basically, or well the banks that [Glen] knew that [Catlin Sr.] had any kind of
a business relationship with. At those
banks, they checked for safety deposit boxes.
A search of the files of the attorney who acquired the practice of the
lawyer who drafted the will was also undertaken, but it met with little success.
In In re Estate of Capps, 154 S.W.3d 242
(Tex. App.Texarkana 2005, no pet.),
the evidence illustrated that the testator executed her will, kept the
original, and provided a copy of it to someone for safekeeping with church
records. The copy was placed in a locked
file cabinet. After Capps died, a search
was undertaken for the original. Its
scope encompassed her house and a metal box in which she normally retained
important documents. Yet, as here, the
original was never found. When asked if
such evidence satisfied the requirements of §85 of the Probate Code, the panel
in Capps said yes. Id. at 244-45. No
less of a search was conducted here. Not
only did it include Catlin Sr.s house but also his business and the banks with
which he maintained a business relationship.
Given this and Capps, we hold that
the record before us contains both legally and factually sufficient evidence supporting
the trial courts findings that 1) Catlin Sr. did not revoke the February 1993
will submitted for probate, 2) Exhibit 1 was a true and correct copy of the
original February 1993 will, and 3) [t]he Applicants have provided good and
sufficient evidence as to the cause of the original Wills non-production and
this cause is sufficient to satisfy the Court that the original Will cannot, by
any reasonable diligence, be produced.
It was not necessary for Barnes to also show how it was lost such as through
the eating habits of a neighbors goat, the occurrence of a Kansas tornado, the
devastation of a flash flood, or the like.
Issue Two Termination of the Trust
Junior next
argues, via issue two, that the trust which the will purported to create failed
or terminated because Doris predeceased her husband. Thus, the property designated to comprise its
corpus could not pass to the trusts remaindermen,
who happened to be Juniors stepsiblings.
We overrule the issue.
It is settled that in construing a will, we
focus on the testators intent. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639
(Tex. 2000); In re Dillard, 98 S.W.3d 386, 391-92 (Tex. App. Amarillo
2003, pet. denied). Furthermore,
that intent is drawn from the will, not the will from the intent. San Antonio Area Foundation v. Lang, 35 S.W.3d at 640; In re Dillard, 98 S.W.3d at 391. In other words, the testators intent must be
garnered from the actual language within the four corners of the document. San Antonio Area Foundation v. Lang, 35 S.W.3d at 639; In re Dillard, 98 S.W.3d at 391. Nevertheless, if those words are open to more
than one reasonable construction, evidence of the testators situation, the
circumstances surrounding or influencing the wills execution, and like indicia
which enable the court to place itself in his shoes at the time the document
was executed may be admissible. San
Antonio Area Foundation v. Lang, 35 S.W.3d at 639. This is so because they may facilitate the
determination of intent at that time.
But, again, this exception applies only when words are susceptible to
more than one construction. San
Antonio Area Foundation v. Lang, 35 S.W.3d at 641; In
re Dillard, 98 S.W.3d at 391-92.
If they are not, then the court can look to nothing other than the face
of the instrument. In re Dillard,
98 S.W.3d at 391-92.
So too must we remember that our
task is to harmonize potentially conflicting terms in a way that effectuates all
aspects of the document. Hutton v.
Methodist Home, 615 S.W.2d 289, 292 (Tex. Civ. App.Fort Worth 1981, writ
ref'd n.r.e.). No provision should be
rendered meaningless, if at all possible.
Myrick v. Moody, 802 S.W.2d 735, 738 (Tex. App.Houston [14th
Dist.] 1990, writ denied). Nor should
we arrive at a construction that results in partial intestacy, if possible, for
such an outcome is disfavored. Shriners Hosp. Etc. v. Stahl, 610 S.W.2d
147, 151-52 (Tex. 1980); Atkinson v. Kettler,
372 S.W.2d 704, 710 (Tex. Civ. App.Dallas), affd, 383 S.W.2d 557 (Tex. 1964). With these precepts in mind, we turn to the
writing before us.
Via subpart 2.1 of the document, we
see that the testator initially bequeath[ed]
to [his] spouse [Doris] all of [his] interest in the household and yard and
garden furniture, personalty used for recreational
purposes, automobiles, clothes, jewelry, and personal effects used or worn by
him. However, if Doris were to die
before him, the aforementioned property was to become a part of that property
devised and bequeathed by subpart 2.3 of this section [i.e. Section II] of [his] Will.
In subpart 2.2, Catlin Sr. left to his descendants living at the time
of [his] death a sum equal to one-tenth of the rest, residue, and remainder
of [his] property estate. If no such
descendants were alive, however, the one-tenth was to become a part of the
rest, residue and remainder of [his] property. . . devised
and bequeath[ed] by subpart 2.3 as well. Incidentally, Junior was the only person who
fell within the wills definition of descendant.
Through subpart 2.3, Catlin Sr.
devised all the rest, residue, and remainder of [his] property and estate,
real and personal . . . to the Trustee or Trustees hereinafter named in Section
III . . . to be held, administered and distributed as provided in such
section. As for Section III of the will,
the testator used it to create the Jerry Don Catlin Trust. Therein, he appointed Barnes trustee and directed
that the income from the trust . . . be used . . . to pay the expenses . . . incident to administering and
operating the trust and to the preservation of the trust corpus. All of the remaining income of the trust
was then to be distributed, in equal shares, to [his] spouse [Doris] and Jimmy
Wayne Barnes, Diane Marie King, and Douglas Glen Barnes at such intervals as
shall be deemed reasonable by my Trustee
. . . . The trustee was also
granted the authority to invade the trust corpus if the income proved insufficient
to provide for the health, education, support and maintenance . . . of the
beneficiaries. Catlin Sr. then directed
the trust to terminate upon the death of [his] spouse and that upon its
termination, all the trust corpus shall belong and be delivered to Jimmy Wayne
Barnes, Diane Marie King, and Douglas Glen Barnes, in equal shares or to the
respective children of any of those three who had died. From these various provisions we reach the following
conclusions.
First, the will contained no
residual clause other than that vesting the trust with the remaining 9/10ths of
the testators property interests. We
mention this because Juniors interpretation of the will and circumstances of
the case would result in a partial intestacy.
That is, if the provisions relating to the creation of a trust are
somehow nullified because Doris predeceased her husband, then no residual
clause exists to direct how the remaining 9/10ths of the estate should be distributed. Consequently, the rules of intestate
succession would come into play, which is a result disfavored by our
jurisprudence. Shriners Hosp. v. Stahl, supra.
And, application of those rules would
effectively pass the estate to Junior as Catlin Sr.s only child. Tex.
Prob. Code Ann. §38(a)(1) (Vernon 2003).
Next, and irrespective of the legal
mechanism by which his estate was to pass, Catlin Sr. specified, and therefore
intended, that Junior receive no more than 1/10th of his estate
after specific bequests to Doris were disbursed. Again, the testators descendants (i.e. Junior) living at the time of
[his] death a sum equal to one-tenth of the rest, residue, and remainder of
[his] property estate. Nothing was left
them or Junior elsewhere in the document.
More importantly, any interpretation of the will that resulted in a
partial intestacy would effectively contradict the testators intent for they (i.e. Junior) would receive more than the
1/10th limitation specified by the instrument.
We next conclude that Doris
interest in both her husbands estate and the trust was contingent upon her
surviving him. Again, the specific
bequests given her were to go to the trust per subpart 2.3 of the will if she predeceased
him. Furthermore, her enjoyment of the
trust income and corpus ended when she died since at that point the trust
terminated and the remaining property was to be distributed to her children, James,
Jimmy, and Diane.
So too do we see that creation of
the trust was not dependent upon Doris surviving her husband. To conclude otherwise would be to nullify subpart
2.1 of the will. Through that provision,
Doris was to receive various personal items of her husband so long as she
outlived him. Yet, if she died before
him then all of the foregoing items [were to] become a part of [the] property
devised and bequeathed by subpart 2.3, the latter being the clause placing the
property in trust. Given that we must
interpret the will in a manner that gives effect to each provision, Hutton
v. Methodist Home, 615 S.W.2d at 292, we can only conclude that by
requiring property to be placed in trust even if Doris died before Catlin Sr., the
latter intended to create a trust irrespective of whether she survived him.
Additionally, Junior cites us to no
authority prohibiting the creation of a trust followed by its immediate
termination. He does though turn to §58a(d) of the Texas Probate Code and uses it to support his
contention that because Doris died before her husband, the trust never came
into creation. That section, which
concerns bequests left to a trust, is the Texas version of the Uniform Testamentary
Additions to Trusts Act. Tex. Prob. Code Ann. § 58a(a) (Vernon 2003); In
re Estate of Canales, 837 S.W.2d 662, 667 (Tex. App.San Antonio 1992, no writ). According to subsection (d) of that statute,
[u]nless the testator's will provides otherwise, a revocation or
termination of the trust before the
testator's death causes the devise or bequest to lapse. Id.
at §58a(d) (emphasis added). For a trust to have terminated before the testators death,
it must have been in existence prior thereto; indeed, an event cannot end if it
never began in the first place. Yet, the
Jerry Don Catlin Trust was created through Catlin Sr.s will, and no one
suggests otherwise. Moreover, the terms
of that will did not take effect until he died.
Meyer v. Shelley, 34
S.W.3d 619, 623 (Tex. App.Amarillo 2000, no pet.), citing Shriners Hosp. v. Stahl, 610 S.W.2d 147,
150 (Tex. 1981) (holding that a will speaks at
the time of the testators death). At that point the trust arose, and it
instantaneously acquired title to the property bequeathed to it by Catlin Sr. See Tex. Prob. Code Ann. §37 (Vernon 2003)
(stating that when a person dies testate, title to property immediately vests
in the devisees or legatees); accord, In
re Hite, 700 S.W.2d 713, 717 (Tex. App.Corpus Christi 1985, writ refd
n.r.e.) (stating that there
is no shorter interval of time than when the testator dies and his estate
passes to his devisees). So, the circumstances before us are not those governed by
§58a(d).
Young folk of the
1970s sang about how a long strange trip its been.[1] That seems to capture the essence of our
discourse, that is, a long trip encompassing odd circumstances. Nonetheless, engaging in the journey serves
to illustrate how the words of the will truly manifest the intent of Catlin Sr.
and why our disposition of this appeal abides by that intent. In rejecting Juniors assertion, we avoid the
chance of intestacy, apply the words utilized by the testator within the four
corners of the will, follow legal principles established as road markers, and,
by vesting his stepchildren with the remaining 9/10ths of his estate, arrive at
the destination his father selected.
Having overruled
each issue, we affirm the judgment of the trial court.
Brian
Quinn
Chief
Justice
[1]Grateful Dead, Truckin. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1074865/ | COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Lemons and
Senior Judge Duff
Argued at Alexandria, Virginia
TERRY JANSEN FORNEY
MEMORANDUM OPINION * BY
v. Record No. 0978-98-4 JUDGE DONALD W. LEMONS
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
John J. McGrath, Jr., Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.
Ruth M. McKeaney, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Terry Jansen Forney was convicted of driving after having
been declared an habitual offender in violation of Code
§ 46.2-357(1), and four counts of forging a public document in
violation of Code § 18.2-168. On appeal, he argues that the
trial court erroneously admitted evidence of a prior conviction
for driving after having been adjudged an habitual offender,
that the admission of such evidence violated the rule against
the admission of evidence of prior crimes, and that the court
erred in denying Forney’s motion to strike.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I. BACKGROUND
On May 19, 1997, Warden Jeffrey Allen Larson of the
Virginia Game and Inland Fisheries was patrolling the Elizabeth
Furnace area of Shenandoah County, checking fishing licenses,
when he noticed Terry Jansen Forney fishing in a stream. Larson
testified that he approached Forney and his two companions and
asked to see their fishing licenses. Forney denied that he was
fishing, but Larson told Forney that he was going to issue him
summonses for fishing without a license. Forney went to his car
and presented Larson with his driver’s license which indicated
that he was “Gregory Lewis.” Larson further testified that
Forney told him that the address on the license was correct.
Forney was given three summonses related to fishing without a
license, and he signed each one with the name “Gregory Lewis.”
Larson stated that Forney and his companions entered the car and
Forney got into the driver’s seat and drove away.
On June 24, 1997 Forney appeared and pled no contest in the
name of “Gregory Lewis” to the charges of fishing without a
license and paid fines in the General District Court of
Shenandoah County. Deputy Clerk Linda Sue Hawkins testified
that Forney signed a payment agreement with the name “Gregory
Lewis.” Both Larson and Hawkins identified Forney as the man
they had witnessed sign his name as “Gregory Lewis.”
Larson later learned Forney’s true identity and checked his
driving record which revealed that Forney was listed as an
- 2 -
habitual offender. Forney was then charged with operating an
automobile after having been adjudged an habitual offender, as
well as with four counts of forgery. At trial, the
Commonwealth’s Attorney sought to introduce two orders
convicting Forney of driving after being declared an habitual
offender in Bristol, Virginia, and Winchester, Virginia. The
trial court excluded the order from Winchester because of
confusion of the dates listed on the document. The order from
Bristol was initially excluded, but the court ultimately
admitted it for the limited purpose of determining whether
Forney had notice of his adjudication as an habitual offender.
II. EVIDENCE OF PRIOR CONVICTION
On appeal, Forney argues that the court erred in admitting
evidence of a prior conviction for driving after having been
adjudicated an habitual offender for purposes of proving
knowledge of his prior adjudication. Forney contends that he
was convicted in his absence and there was no evidence that he
had been made aware of his conviction by the general district
court.
“The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.”
Brown v. Commonwealth, 21 Va. App. 552, 555, 466 S.E.2d 116, 117
(1996) (citations omitted). “Evidence of other crimes or bad
acts is inadmissible if it is offered merely to show that the
- 3 -
defendant is likely to have committed the crime charged.” Goins
v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127, cert.
denied, 519 U.S. 887 (1996). However, “[e]vidence of other
crimes is admissible if it tends to prove any fact in issue,
even though it also tends to show the defendant guilty of
another crime.” Bullock v. Commonwealth, 27 Va. App. 255, 260,
498 S.E.2d 433, 435 (1998). “[E]vidence of other crimes is
[also] properly received if it is relevant and probative of an
issue on trial, such as an element of the offense charged or the
required predicate for enhanced punishment.” Pittman v.
Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 695 (1993).
Forney was charged with driving after having been
adjudicated an habitual offender, second or subsequent offense,
see Code § 46.2-357(3), but convicted of a violation of
46.2-357(1), a misdemeanor not requiring proof of prior
conviction for the same offense. The Commonwealth was required
to prove that Forney had knowledge that he had been adjudicated
an habitual offender.
On February 6, 1996, Forney was charged on a misdemeanor
warrant with “after having been declared a habitual offender by
a court, driv[ing] a motor vehicle on the highway in a manner
which (did not) endanger the life, limb, or property of another
(the current offense being a second or subsequent violation of
this statute).” The language of the offense charged describes a
felony. However, the felony charge was erroneously written on a
- 4 -
misdemeanor arrest warrant in Bristol, Virginia. Because of the
error in the 1996 warrant, the court refused to admit it as
evidence of a prior conviction. However, the court did admit
the document as evidence that Forney had knowledge that he had
been adjudicated an habitual offender. The arrest warrant,
which stated the offense charged, was served upon Forney upon
his arrest on February 6, 1996. The court instructed the jury
that it was to consider the misdemeanor warrant only for the
purpose of determining whether Forney had knowledge of his
adjudication as an habitual offender.
Whether Forney knew of his adjudication was an element of
the offense charged. “Evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue
in the case.” Ragland v. Commonwealth, 16 Va. App. 913, 918,
484 S.E.2d 675, 678 (1993). In addition, “evidence is
admissible if it tends to prove any relevant element of the
offense charged or if the evidence is connected with or leads up
to the offense for which the accused is on trial.” Woodfin v.
Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988)
(citations omitted). Because the arrest warrant was served on
Forney at the time of his arrest, it was relevant to the
question of Forney’s knowledge of his adjudication as an
habitual offender.
- 5 -
III. PREJUDICIAL EFFECT OF PRIOR CONVICTION
Forney argues that the admission of his prior conviction as
an habitual offender was error because it created the
possibility of prejudice with respect to the forgery charges.
Forney contends that the evidence was unduly prejudicial and
that no exceptions to the general rule prohibiting the
introduction of prior crimes were applicable to the forgery
charges. Forney argues further that a limiting instruction, in
which the jury was instructed to consider evidence of the prior
conviction only for purposes of knowledge of his habitual
offender status, did not correct the error.
Forney failed to raise an objection to the admission of
evidence of his prior conviction on this ground at trial.
Therefore, we are barred from considering it on appeal. See
Rule 5A:18; Walton v. Commonwealth, 24 Va. App. 757, 485 S.E.2d
641 (1997), aff’d, 255 Va. 422, 497 S.E.2d 869 (1998).
In addition, Forney could have requested severance of the
charges prior to trial. A defendant must request separate
trials before trial begins or the defendant has waived the
issue. See Colclasure v. Commonwealth, 10 Va. App. 200, 202,
390 S.E.2d 790, 791 (1990). Forney was aware of all charges and
the respective elements of each prior to trial. Forney is
charged with the knowledge that the Commonwealth was required to
prove knowledge of his prior adjudication as an habitual
offender. If Forney believed that prejudice was likely to
- 6 -
result, he should have moved to sever the charges against him.
He may not object for the first time on appeal to the
introduction of evidence necessary to prove one element of an
offense because of the possibility of prejudice on a second
charge.
IV. SUFFICIENCY OF THE EVIDENCE
Forney argues that the evidence was insufficient to sustain
his conviction for driving after having been adjudicated an
habitual offender. Forney contends that there was insufficient
evidence that he knew of his habitual offender status at the
time of his arrest.
We disagree. Where the sufficiency of the evidence is an
issue on appeal, an appellate court must view the evidence and
all reasonable inferences fairly deducible therefrom in the
light most favorable to the Commonwealth. See Cheng v.
Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). We
hold that the evidence introduced at trial was sufficient to
demonstrate Forney’s knowledge that he had been adjudicated an
habitual offender. Forney was arrested on February 6, 1996 for
driving after having been declared an habitual offender. The
arrest warrant stated the charge and his status as an habitual
offender and was served on Forney and proved that Forney had
knowledge of his habitual offender status. In addition, the
fact finder was entitled to draw an inference that Forney had
misrepresented himself and used a false name because he was
- 7 -
aware that he was driving in violation of his status as an
habitual offender.
IV. CONCLUSION
Based upon the foregoing, we hold that the trial court did
not err in admitting evidence of Forney’s prior conviction for
driving after having been adjudicated an habitual offender and
that the evidence was sufficient to support his convictions.
The convictions are affirmed.
Affirmed.
- 8 - | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2778581/ | IN THE COURT OF APPEALS OF IOWA
No. 13-1941
Filed February 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CARLOS DANILO OCAMPO MEDRANO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Patrick M.
Carr, Judge.
The defendant appeals from the district court’s denial of his motion to
suppress, challenging the district court’s finding of reasonable suspicion.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, Patricia A. Reynolds, Assistant
Appellate Defender, and Angela O’Kane, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Benjamin Parrott, Assistant Attorney
General, David Patton, County Attorney, and Julian West and Paul Allen,
Assistant County Attorneys, for appellee.
Heard by Danilson, C.J., and Tabor and Bower, JJ.
2
DANILSON, C.J.
Carlos Ocampo Medrano appeals the district court’s denial of his motion
to suppress regarding evidence obtained after the traffic stop. Ocampo Medrano
maintains that the officer did not have reasonable suspicion to stop his vehicle.
Reviewing the totality of the circumstances, we find the officer did not have
authority to stop Ocampo Medrano’s vehicle. The officer lacked a reasonable
suspicion he had the correct vehicle, and the alleged traffic violations reported by
a citizen complainant occurred two days earlier. Moreover, without a warrant and
without probable cause, the officer did not have authority to stop Ocampo
Medrano’s vehicle for a completed simple misdemeanor not observed by the
officer. Thus, we reverse the district court’s denial of the motion to suppress, and
we remand for further proceedings consistent with this opinion.
I. Background Facts and Proceedings.
On October 22, 2012, Ocampo Medrano was charged with two counts of
forgery for acts occurring on or about October 11, 2012.
Ocampo Medrano filed a motion to suppress on January 17, 2013. He
filed an amended motion to suppress on February 15, 2013. In the motion,
Medrano Ocampo maintained that Officer Abbas did not have probable cause to
stop his vehicle and requested the suppression of all evidence obtained from the
illegal stop.1
1
Ocampo Medrano’s motion to suppress also maintained that he had been interrogated
without the benefit of Miranda warnings and requested the suppression of all statements
and admissions made during the illegal interrogation. The district court granted this
portion of the motion—suppressing Ocampo Medrano’s confession—and it is not the
subject of this appeal.
3
On February 18, 2013, a hearing was held on the motion to suppress. At
the hearing, Officer Abbas testified she had received a complaint from a named
citizen on October 9, 2012. The citizen told Officer Abbas that he was driving on
450th Street, a gravel road near his home, when he witnessed a silver Grand
Prix run the stop sign and nearly cause a collision. The citizen told Officer Abbas
that he followed the car and actually encountered the occupants. The vehicle
was occupied by three males. He also reported the car was covered in dust and
had out-of-county license plates. The citizen also stated he had seen the vehicle
several times in the past driving in a reckless manner running the stop sign.2
On October 11, 2012, Officer Abbas was patrolling near 450th Street
when she saw a dusty, silver Grand Prix with out-of-county license plates and
three occupants. According to Officer Abbas, she did not observe Ocampo
Medrano commit any traffic violations, but she initiated a traffic stop in order to
“ID the driver and ask him about the complaints that [she] had received
previously.” Later, Ocampo Medrano confessed he was in the country illegally
and did not have a valid driver’s license.
On April 17, 2013, the district court filed a written ruling on the motion to
suppress. The district court concluded, “Deputy Abbas had ‘reasonable
suspicion’ to initiate a traffic stop of the Defendant’s vehicle. Although the
Defendant claims otherwise, Deputy Abbas did not need ‘probable cause.’
Stopping the motor vehicle and questioning the driver about whether he had a
valid driver’s license amounts to a Terry v. Ohio stop.” The court found the stop
2
The minutes of testimony report that three weeks earlier, another named citizen
reported a complaint of a vehicle driving in a reckless manner on the same gravel road.
4
was not illegal and denied Ocampo Medrano’s motion to suppress all evidence
obtained from the stop. Ocampo Medrano appeals.
II. Standard of Review.
Ocampo Medrano asserts his state and federal constitutional rights to be
free from unreasonable search and seizure were violated.3 We review
constitutional claims de novo. State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013).
“A de novo review constitutes an independent evaluation of the totality of the
circumstances as shown by the entire record.” Id. We give deference to the
factual findings of the district court because of its opportunity to evaluate the
credibility of witnesses, but we are not bound by the findings. Id. In conducting
our review, we consider evidence presented at the suppression hearing as well
as evidence presented at trial. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997).
III. Discussion.
The Fourth Amendment of the United States Constitution and article 1,
section 8 of the Iowa Constitution prohibit “unreasonable search and seizures.”
“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ . . .
even though the purpose of the stop is limited and the resulting detention quite
brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979). Stopping a vehicle and
detaining the occupant is not an unreasonable seizure when the officer has either
(1) probable cause due to observation of a traffic violation or (2) reasonable
3
Because Ocampo Medrano “has not proposed a standard for interpreting our search
and seizure provisions under the Iowa Constitution differently from its federal constitution
counterpart, we will apply the general standards as outlined by the United States
Supreme Court for addressing a search and seizure challenge under the Iowa
Constitution.” Tyler, 830 N.W.2d at 292.
5
suspicion, supported by articulable facts that a criminal act has occurred or is
occurring. State v. Tague, 676 N.W.2d 197, 201–04 (Iowa 2004).
The State concedes Officer Abbas did not observe Ocampo Medrano
commit any violations, did not have probable cause to stop Ocampo Medrano,
and did not have a reasonable suspicion that Ocampo Medrano had committed
an indictable offense. The State also concedes that error was preserved by
Ocampo Medrano’s motion to suppress although it did not specifically reference
reasonable suspicion. Thus, the question at hand is whether the officer had a
reasonable suspicion to support stopping Ocampo Medrano.
“[R]easonable suspicion is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the
evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). However, the State
has the burden “to show by a preponderance of the evidence that the stopping
officer had specific and articulable facts, which taken together with rational
inferences from those facts, to reasonably believe criminal activity may have
occurred.” Tague, 676 N.W.2d at 204. “Whether reasonable suspicion exists for
an investigatory stop must be determined in light of the totality of the
circumstances confronting the officer, including all information available to the
officer at the time the officer makes the decision to stop the vehicle. Id.
Here, a named citizen reported he witnessed a silver Grand Prix run a
stop sign and almost cause a collision. Iowa has adopted the position that
information imparted by a citizen informant is generally reliable. State v.
Niehaus, 452 N.W.2d 184, 189 (Iowa 1990). “The statement is merely a
presumption, however, and not a per se rule.” Id. “Implicit in this construction is
6
the idea that, even where a citizen informant is involved, a common-sense
analysis of the totality of the circumstances must be applied to assess the
reliability of the information.” Id. Even with the presumption the citizen
informant’s complaint was true, we find Officer Abbas did not have reasonable
suspicion to support stopping Ocampo Medrano. Officer Abbas testified she
believed Ocampo Medrano’s vehicle was the subject of the complaint because
both were dusty, silver Grand Prix with out-of-town license plates and had three
occupants. She added that both were seen in the same area. However, over
two days passed between the time of the citizen complaint and Officer Abbas
initiating the traffic stop. After that amount of time, the information from the
citizen informant regarding the area the car was in, the number of passengers in
the car, and the amount of dust on the car were no longer reliable identifying
factors as each could have easily changed, and presumably did, during the two-
day delay.4 Further, before stopping the vehicle, there was no evidence the
officer knew any identifying information of the operator. Thus, if we find Officer
Abbas had a reasonable suspicion to stop Ocampo Medrano’s vehicle, we would
have to find she had a reasonable suspicion to stop any dusty silver Grand Prix
4
The State relies on the supreme court’s holding in State v. Vance, 790 N.W.2d 775,
781–83 (Iowa 2010), for the proposition that if the tip established reasonable suspicion
to support stopping the car described in the complaint, the officer could infer the driver
was the same person both times. However, Vance holds:
[A]n officer has reasonable suspicion to initiate an investigatory stop of a
vehicle to investigate whether the driver has a valid driver’s license when
the officer knows the registered owner of the vehicle has a suspended
license, and the officer is unaware of any evidence or circumstances
indicating the registered owner is not the driver of the vehicle.
Here, there is no indication Officer Abbas knew who the registered owner of the vehicle
was or that there was any information about the registered owner which would justify
stopping the vehicle.
7
with out-of-county plates. We cannot do so. At best, Officer Abbas had a mere
suspicion.
Because we find the officer did not have reasonable suspicion that the
vehicle stopped was the same vehicle that was the subject of a citizen complaint
given two days earlier, we need not address the larger constitutional issue of
whether reasonable suspicion of a completed misdemeanor can ever support a
stop under the Fourth Amendment. But in the event we are in error, we choose
to address the issue.
The State asks us to decide the broader question of whether a reasonable
suspicion of a completed misdemeanor can ever support a stop under the Fourth
Amendment in order to dispose of this case. Federal courts are divided on the
issue. State v. Pals, 805 N.W.2d 767, 775 (Iowa 2011); compare Gaddis ex rel.
Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004) (holding police
may not make a stop with only reasonable suspicion of a “mere completed
misdemeanor”) with United States v. Hughes, 517 F.3d 1013, 1017–18 (8th Cir.
2008) (applying a balancing test), and United States v. Grigg, 498 F.3d 1070,
1081 (9th Cir. 2007) (same). And the Iowa Supreme Court has not yet decided
the issue. See Pals, 805 N.W.2d at 775 (distinguishing an ongoing civil infraction
from a completed misdemeanor); see also Tyler, 830 N.W.2d at 298 (finding the
officer did not have reasonable suspicion at the time of the stop and declining to
resolve whether the reasonable suspicion could have supported the stop for a
completed misdemeanor).
If given the opportunity to address the issue, we do not believe our
supreme court will find that reasonable suspicion of a completed misdemeanor
8
not observed by the officer is sufficient to effectuate a traffic stop amounting to a
seizure. In such circumstances, the officer would not be able to arrest or issue a
citation in lieu of arrest for the completed simple misdemeanor without probable
cause that the person to be arrested committed the offense. See Iowa Code
§ 804.7(2) (an officer may make an arrest without a warrant “[w]here a public
offense has in fact been committed and the peace officer has reasonable ground
for believing that the person to be arrested has committed it”); Iowa Code
§ 805.1(1) (a citation in lieu of arrest may be issued by “a peace officer having
grounds to make an arrest”). “Reasonable grounds” is synonymous with
probable cause. State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005).5
5
Our supreme court has noted the distinction between the authority to arrest for a felony
and the authority to arrest for a simple misdemeanor has existed since common law.
Young v. Des Moines, 262 N.W.2d 612, 616–20 (Iowa 1978) overruled on other grounds
by Parks v. City of Marshalltown, 440 N.W.2d 377, 379 (Iowa 2000). “At common law a
peace officer could make a warrantless arrest if he had reasonable suspicion a felony
had been or was being committed by the person to be arrested. An officer’s authority to
make warrantless misdemeanor arrests was limited, however, to offenses involving
breach of the peace committed in his presence.” Id. at 616. In Young, the court
concluded that if a public offense was being committed in the officer’s presence as
determined by his sensory perceptions and he had probable cause, the officer may
immediately apprehend the offender pursuant to Iowa Code section 755.4(1), the
predecessor statute to section 804.7(1). Id. at 616–20.
The distinction between arrests for simple misdemeanors and arrests for felonies
remains embodied in section 804.7, but the legislature has now categorized the offenses
by distinguishing between “public offenses” and “indictable offenses.” See Iowa Code §
804.7(1)-(3).
In Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 764 (Iowa 2002), our supreme court
recognized that the legislature had created “categories” of arrest distinguishing between
public offenses and more serious offenses. Id. at 769. The court explained, “A citizen
may make an arrest for any public offense if the offense is ‘committed or attempted in
the [citizen’s] presence.’” Id. (citing Iowa Code § 804.9(1)). However, if the public
offense is a felony, “a less stringent standard is imposed.” Rife, 641 N.W.2d at 769. If
the offense constitutes a felony and the felony has been committed, “the citizen must
only possess reasonable grounds to believe the person to be arrested committed the
felony.” Id.; see also Iowa Code § 804.9(2). The court also observed that citizens, like
police officers, may not make a warrantless arrest based upon “mere knowledge of the
commission of a misdemeanor offense” but rather must have detected the commission
of the offense through one or more of their senses. Rife, 641 N .W.2d at 769.
9
Further,
[E]xcept in those situations in which there is at least articulable and
reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an
occupant is otherwise subject to seizure for violation of law,
stopping an automobile and detaining the driver in order to check
his driver's license and the registration of the automobile are
unreasonable under the Fourth Amendment.
Prouse, 440 U.S. at 663. Because Officer Abbas did not have a warrant and
lacked probable cause, there was no purpose or basis for the stop unless the
officer believed there presently was criminal activity afoot. Here, Officer Abbas
solely relied upon the previous complaint and did not observe or suspect a
current violation of the law.
Without reasonable suspicion to support the stop, all evidence obtained
during the stop is inadmissible. See Tyler, 830 N.W.2d at 298. Even if
reasonable suspicion existed, without a warrant and without probable cause,
there was no basis to stop Ocampo Medrano’s vehicle for a completed simple
misdemeanor not observed by the officer. Thus, we reverse the district court’s
denial of Ocampo Medrano’s motion to suppress, and we remand the case for
further proceedings consistent with this opinion.
REVERSED AND REMANDED. | 01-03-2023 | 02-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898522/ | NO. 07-08-0337-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 6, 2009
______________________________
ANGELA OBALLY,
APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-412208; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
          Angela Obally, appellant, was convicted of possession with intent to deliver
methamphetamine (meth) of at least 400 grams or more.
Pursuant to appellantâs election,
the trial judge assessed punishment at confinement in the Institutional Division of the
Texas Department of Criminal Justice for 20 years. Appellant appeals via three issues.
We affirm.
Â
Factual and Procedural Background
          In August 2004, appellant was residing at 9007 Alcove in Lubbock County. Robin
Warren began staying at appellantâs home during August 2004. According to the record,
Warren was invited to come to the home to help appellant âcookâ some meth from a
Coleman camp fuel can. The record is clear that appellant took the camp fuel into the
home. Warren testified that appellant told her that Phil, who was identified as appellantâs
dealer, gave her the fuel can. Appellant, however, testified that she found it in the road on
her way home from work. Appellant testified that she went to bed, after returning home,
and awoke to find Warren and one of two males trying to âgasâ the meth while Warrenâs
infant child was in the room. This led to a disagreement and appellant left the home.
Warren, on the other hand, stated that the entire group was involved in the âcookingâ of the
meth but that they ran into difficulty and appellant took a portion of the liquid and left with
it. Appellant left in Warrenâs car and went to the home of Audra Bran.
          On August 13, 2004, Detective Eric Harris of the Lubbock Police Department was
attempting to find Warren regarding an outstanding felony warrant and some forgery
charges. Harris had received a tip that Warrenâs car was seen at a rural residence in
northwest Lubbock County, where Audra Bran resided. Harris proceeded to the residence
and saw Warrenâs car in the driveway. Because there appeared to be several people at
the residence, Harris called for backup and blocked the driveway with his vehicle. While
awaiting backup, Harris noticed that individuals would come out of the house and look at
him and go back into the home. Bobby Bran, the owner of the home, eventually came out
and gave Harris and the other officers, who had arrived at the scene, permission to enter.
Once inside, Harris was not able to find Warren, however, there was a strong chemical
smell that Harris said was associated with meth âcooking.â Appellant came forward and
informed Harris that she had driven Warrenâs car to the house. Further, appellant advised
Harris that Warren was at appellantâs home on Alcove. Appellant eventually drove back
to the Alcove address with Harris.
          The testimony at trial was differing about what appellant said to Harris on the drive
back to her home. Harris recounted that appellant advised him that narcotics might be
present at the house. Appellant testified that she told Harris that she had found a âmeth
labâ in the road while driving home. The record reflects that the âmeth labâ referred to by
appellant was actually the can of Coleman camp fuel. Upon arriving at appellantâs home,
appellant signed a consent to search form. Appellant hid in the car while Harris and other
officers went into the house and arrested Warren. While at the house, Harris called for
officers from the drug task force to be dispatched to the scene. Upon searching the house,
the officers found drug paraphernalia, including syringes, spoons with residue on them, and
items generally used in the production of meth. Additionally, officers found two containers
of meth inside a freezer, one in a small Mason jar and the other in a blue tupperware
pitcher. These were field tested and they tested positive for meth. Warren and another
individual, who did not testify at trial, were arrested that day. Appellant was arrested at a
later date.
          At the trial, Warren testified for the State and gave an account that identified
appellant as the person who had the âmeth labâ and claimed that she had recruited Warren
and her male companion to come over and assist in the meth âcook.â Further, Warren
identified a letter that appellant had sent to Warren while both were in jail. The letter,
which was introduced into evidence, contained admissions by appellant that she was sorry
that she got Warren involved in the meth situation and that appellant took the blame for the
meth that was located in the house. The State also provided the testimony of Randy
Nelson, an investigator for the State, who is a handwriting expert. Nelson testified that,
based upon his examination of a handwriting exemplar provided by appellant, the letter in
question was written by appellant and did not appear to be altered. The Stateâs chemist
testified that the amount of meth found at the house was 1.17 kg and that the solution was
in a base state, meaning that the liquid had not been gassed to extract the meth into a
powder form. Further, the chemist stated that the solution contained less than 1 percent
concentration of meth.
          Appellant testified in her own behalf and claimed that the only meth in the house
was what had been made with the Coleman camp fuel, minus the half of it that she took
to Audra Branâs house. Appellant testified that Warren and the two males had gassed the
meth she left. Further, appellant stated that she had no knowledge of the meth solution
found in the freezer in a Mason jar or plastic Tupperware pitcher. Additionally, appellant
attempted to contradict the testimony of Harris by saying that she told him about finding
the Coleman fuel can on her way home from work and that Harris was the one that told her
to hide in his car when he entered the house. Finally, appellant claimed that her letter to
Warren had been altered to reflect that she was responsible for the meth in the house.
          The jury returned a verdict of guilty to the charge of possession of meth with intent
to distribute. Appellant perfected her appeal and alleges that the evidence is legally
insufficient to link her to the meth discovered at the Alcove address; there is insufficient
corroboration of the testimony of the accomplice, Warren; and the evidence is factually
insufficient to prove possession of the meth with intent to distribute. Disagreeing with
appellant, we will affirm.
Corroboration of Accomplice Testimony
          We will first address appellantâs contention that the evidence was insufficient to
corroborate the testimony of Robin Warren, an accomplice as a matter of law. The record
reflects that there was no contested issue about Warrenâs status as an accomplice as a
matter of law and, in fact, the trial court so charged the jury. The standard by which we
review the corroboration of accomplice witness testimony requires that the reviewing court
eliminates all of the accomplice testimony from consideration and then examines the
remaining portion of the record to see if there is any evidence that tends to connect
appellant to the commission of the crime. See Castillo v. State, 221 S.W.3d 689, 691
(Tex.Crim.App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001)).
The corroborating evidence does not need to be sufficient to establish appellantâs guilt,
rather it need only tend to connect appellant to the offense. Id. There simply must be
some non-accomplice evidence which tends to connect appellant to the commission of the
offense alleged in the indictment. Id. However, the mere presence of appellant at the
scene of the crime is insufficient corroboration. See Malone v. State, 253 S.W.3d 253, 257
(Tex.Crim.App. 2008). In the final analysis, âthe issue then is not how an appellate court
would independently assess the non-accomplice evidence but whether a rational fact-finder
could conclude that the non-accomplice evidence âtends to connectâ appellant to the
offense.â Simmons v. State, 282 S.W.3d 504, 509 (Tex.Crim.App. 2009).
          When we apply the standard of review to the record, we find that appellant admitted
to living at the Alcove address where the meth in question was found. The evidence
further reflected that, while Harris was driving appellant from the Bran residence to her
house on Alcove, appellant admitted to Harris that he might find narcotics at the residence.
While it is true that appellant denied making the statement, it was up to the fact finder to
resolve that conflict and we must defer to the resolution adopted by the fact finder. See
Evans v. State, 202 S.W.3d 158, 163 (Tex.Crim.App. 2006). Further, there was the
physical evidence seized at the residence, including syringes, spoons with residue, the
supplies needed to manufacture meth, and the actual meth. Then, there is the letter
written by appellant to Warren while both were incarcerated. In the letter, appellant states:
1) that the blame for the meth lab being there to begin with was hers; 2) that she should
have never had the âstuffâ there; and 3) that she should have told Warren that it was there.
This admission is crucial because the record is clear that Warren knew about the Coleman
fuel can, so it is a reasonable inference that the âstuffâ that appellant was referring to in the
letter was the meth that was found in the freezer in a Mason jar and plastic Tupperware
pitcher. Accordingly, the jury could, following the courtâs charge, rationally find that there
was independent evidence that tended to connect appellant to the commission of the
offense. See Simmons, 282 S.W.3d at 509. Therefore, we overrule appellantâs issue
regarding corroboration of the accomplice witness testimony.
          Appellantâs next two issues challenge the legal sufficiency of certain aspects of the
Stateâs proof and factual sufficiency of other aspects of the Stateâs proof. Because both
the legal and factual sufficiency of the evidence are challenged, we must first address the
legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.
1996). If we find the evidence legally sufficient, we will then address the factual sufficiency
issue. Id. at 132.
Legal Sufficiency
          Appellantâs first issue challenges the legal sufficiency of the evidence tending to
connect appellant with the meth found at the Alcove address. In assessing the legal
sufficiency of the evidence, we review all the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620
(Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not
sit as a thirteenth juror, but rather must uphold the juryâs 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.Crim.App. 1988). We measure the legal sufficiency of the evidence against
a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240
(Tex.Crim.App. 1997).
          In the case before the court, appellant was not in exclusive possession of the house
where the meth was found. Therefore, we must view the evidence that would link appellant
to the contraband to determine whether a rational juror could have found appellant guilty
beyond a reasonable doubt. See Poindexter v. State 153 S.W.3d 402, 406 (Tex.Crim.App.
2005). The record reflects that appellant was the âownerâ of the home at the Alcove
address.
The record further reflects that Warren and the two males had been at the home
for a day or so prior to the arrest of Warren on the day that the meth in question was
discovered. During testimony of both appellant and Warren, the only meth discussed as
having been brought into the home was from the âmeth labâ that was the Coleman camp
fuel can. The meth discovered in the freezer was that for which appellant was indicted.
Harris testified appellant admitted there might be narcotics in the house and, while
appellant denied making the statement, it was for the jury to resolve that conflict. See id.
There was drug paraphernalia, in the form of syringes and burnt spoons with residue on
them, found in the house. There was meth manufacturing paraphernalia in the form of
tubing, glass beakers and jars, and pickling salt found in the house. Finally, there is the
admission of appellant regarding the âstuffâ that appellant said should not have been there
and that she should have told Warren about. Inasmuch as Warren knew about the
Coleman camp fuel can, the only other item appellantâs admission could refer to is the
meth found in the freezer. All of this evidence could lead a rational trier of fact to find that
appellant exercised control, management, or care over the meth in question and that
appellant knew the matter was contraband. Id.
          Appellant contends that this court should resolve this issue in her favor based upon
the case of Higgins v. State, 515 S.W.2d 268 (Tex.Crim.App. 1974). In Higgins, the house
in question was a large two story structure consisting of 10 rooms, a basement, and
hallways. There were 10 people in the house at the time of the seizure of contraband. The
only evidence linking the appellant in Higgins to the house was two letters found in the
dining room that were over five and a half months old. Plus, there were personal
belongings of other persons found in the house. These facts distinguish Higgins from the
case at bar. Here, the unequivocal testimony was that appellant was in some ownership
or possessory relationship with the house. Additionally, there is the issue of appellantâs
admission, which alters the factual framework. We do not feel the Higgins case controls
our review of the sufficiency of the evidence in the case before us.
          When all of the evidence is viewed in the light most favorable to the verdict, we
cannot say the jury was acting irrational when it found appellant guilty beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Accordingly, appellantâs first
issue is overruled.
Factual Sufficiency
          Appellantâs final issue is that the evidence is factually insufficient to support a finding
that appellant possessed at least 400 grams of meth with intent to distribute. When an
appellant challenges the factual sufficiency of the evidence supporting his conviction, the
reviewing court must determine whether, considering all the evidence in a neutral light, the
jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See
Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual
sufficiency review, we must give deference to the fact finderâs determinations if supported
by evidence and may not order a new trial simply because we may disagree with the
verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial
unless there is some objective basis in the record demonstrating that the great weight and
preponderance of the evidence contradicts the juryâs verdict. See id. Additionally, an
appellate opinion addressing factual sufficiency must include a discussion of the most
important evidence that appellant claims undermines the juryâs verdict. Sims v. State, 99
S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal Appeals has recently
declared that, when reviewing the evidence for factual sufficiency, the reviewing court
should measure the evidence in a neutral manner against a âhypothetically correct jury
charge.â Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v.
State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).
          The essence of appellantâs contention is that, because appellant offered evidence
that is inconsistent with her guilt, when we view all of the evidence in a neutral light, the
evidence becomes insufficient to support the juryâs determination of guilt. Such might be
the case if the appellate court was directed to re-weigh the evidence, however, that is not
our charge. Watson, 204 S.W.3d at 417. Rather, we must point to some objective basis
in the record that demonstrates that the great weight and preponderance of the evidence
contradicts the juryâs verdict. Appellantâs assertion that the conflict in the testimony about
the Coleman camping fuel can does nothing to demonstrate that the evidence contradicts
the juryâs verdict. To begin with, appellantâs analysis completely ignores her confession of
guilt in the letter written to Warren. Then, appellantâs analysis ignores the fact that the jury
has heard all of this evidence and resolved the conflict against her. We cannot simply
decide to ignore the juryâs determination of the factual conflicts. Id. Our review of the
evidence in a neutral light convinces us that the jury acted rationally when it found
appellant guilty beyond a reasonable doubt. Accordingly, appellantâs final issue is
overruled.
Conclusion
          Having overruled appellantâs issues, we affirm the judgment of the trial court.
Â
                                                                           Mackey K. Hancock
                                                                                    Justice
Do not publish.
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NO. 07-11-00154-CV
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL D
Â
APRIL
26, 2011
Â
Â
BANK OF AMERICA, N.A., APPELLANT
Â
v.
Â
LINDA LILLY, APPELLEE
Â
Â
FROM THE 146TH DISTRICT COURT OF
BELL COUNTY;
Â
NO. 247,955-B; HONORABLE RICK MORRIS, JUDGE
Â
Â
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
Â
Â
ORDER OF ABATEMENT
Â
Â
Appellant Bank of America, N.A.,
filed a motion to extend the time for filing its notice of appeal. Tex. R. App. P. 26.3. Before taking up the motion, we sua sponte
question our jurisdiction. See Jones v. Morales, 318 S.W.3d 419,
422 (Tex.App.--Amarillo 2010, pet. denied) (court
addressed possible jurisdictional issue on its own motion).
           The
clerkÂs record has been filed. It
indicates on January 28, 2011, the trial court granted appellee
Linda LillyÂs no-evidence motion for summary judgment against Bank of America
and signed an order severing Bank of AmericaÂs claim against her into a
separate proceeding bearing trial court cause number 247,955-B. According to the severance order, Â[t]he
severed case shall proceed to final judgment separate and apart from those
claims by [Bank of America] against Defendant Lilly Holmes, Inc., which remain
pending . . . .ÂÂ The record contains no
document identified as a final judgment in cause number 247,955-B.Â
           A
court of appeals has no appellate jurisdiction over an interlocutory order
unless expressly authorized by statute. New York Underwriters Ins.
Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex. 1990) (per curiam). The parties do not assert and the record does
not indicate this is an interlocutory appeal authorized by statute or agreement
and court order. See, e.g., Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a) (identifying certain immediately appealable
interlocutory orders), § 51.014(d) (otherwise unappealable
interlocutory order may be made appealable by agreements of parties and order
of court) (West 2008). ÂAs a rule, the
severance of an interlocutory judgment into a separate cause makes it final.ÂÂ Diversified
Fin. Sys., Inc. v. Hill, Heard, OÂNeal, Gilstrap
& Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (per curiam)
(citing Farmer v. Ben E. Keith Co.,
907 S.W.2d 495, 496 (Tex. 1995) (per curiam)). But where, as here, a severance order
expressly contemplates the severed claims will Âproceed to final judgment, a
final judgment is precluded until a later judgment is signed. In re S.A.A., No. 02-08-0080-CV, 2008 Tex. App. Lexis 3428, at *3 (Tex.App.--Fort Worth May 8, 2008, no pet.) (per curiam, mem.
op.) (citing Diversified
Fin. Sys., 63 S.W.3d at 795). Â
           Accordingly,
we abate this appeal to allow Bank of America time to obtain a signed final
judgment in cause number 247,955-B. See In re S.A.A., 2008 Tex. App. Lexis
3428, at *3 (when severance order contemplated further action, appellate court
granted parties opportunity to obtain final judgment); Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex.App.--Houston
[1st Dist.] 1999, no pet.) (court applied appellate
rule 27.2 to allow party to cure jurisdictional defect by obtaining order
creating finality). Bank of America
shall cause the signed final judgment to be included in a supplemental clerkÂs
record filed in this court within thirty days of this order. Failure to comply with this order will result
in dismissal of this appeal for want of jurisdiction. Tex. R. App. P. 42.3(a); In re S.A.A. at *2, *3-*4; Lyons at 717. Bank of AmericaÂs motion for extension of
time to file its notice of appeal remains pending.
           It
is so ordered.
Per Curiam
Â
 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3435937/ | This is an action at law to recover damages for personal injuries sustained by Alfred Smith while riding as a passenger in an automobile as a result of a collision between the automobile and a gas electric car operated by the C., B. Q. Railroad company. The railroad company filed a demurrer which was sustained by the lower court. Alfred Smith has appealed. The same legal propositions are involved in this case as in the case of Ella Mae Smith v. Chicago, B. Q. Railroad company in which an opinion was filed at this term of court, and will be found in227 Iowa 1404, 291 N.W. 417. That opinion decided this case.
It necessarily follows that the judgment of the lower court is reversed in part and affirmed in part. — Reversed in part; affirmed in part.
HAMILTON, C.J., and MILLER, SAGER, STIGER, and OLIVER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4000463/ | I concur in the second reason given for reversal, but not in what is said about the prior conviction. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/997232/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAVIER GIOVANNI SUAREZ-CISNEROS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-96-481-A, CA-98-630-AM)
Submitted: November 19, 1998 Decided: December 3, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Javier Giovanni Suarez-Cisneros, Appellant Pro Se. Mark D. Lytle,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Javier Giovanni Suarez-Cisneros seeks to appeal the district
court’s order denying his motion filed under 28 U.S.C.A. § 2255
(West 1994 & Supp. 1998), and his motion for reconsideration. We
have reviewed the record and the district court’s opinion and find
no reversible error. Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal on the reasoning of the district
court. United States v. Suarez-Cisneros, Nos. CR-96-481-A; CA-98-
630-AM (E.D. Va. May 7 & June 1, 1998). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2898786/ | NO. 07-08-0343-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 4, 2009
______________________________
LUDWIG CANALES,
                                                                                                 Appellant
v.
THE STATE OF TEXAS,
                                                                                                 Appellee
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-414,494; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Dismissal
______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Ludwig Canales appeals from an order denying his motion for bail pending appeal.
We dismiss the appeal as moot.
          Appellant appealed his convictions for aggravated assault with a deadly weapon.
As a result of filing appeals from his convictions, he requested that the trial court set an
appeal bond which the trial court denied. Appellant, further, appealed from that decision.
Subsequently, in Cause Number 07-08-0295-CR issued on May 29, 2009, we reversed
appellantâs convictions. The State filed a petition for discretionary review and appellant
requested that the Court of Criminal Appeals set reasonable bail pending the outcome of
the appeal. On August 28, 2009, we received an order from the Court of Criminal Appeals
wherein the court granted appellant bail pending the final determination of his appeal in the
above referenced trial court cause number.
          Accordingly, we dismiss the appeal as moot.
Â
                                                                           Brian Quinn
                                                                          Chief Justice
Do not publish.
sed="false" Name="Medium Grid 1"/>
NO. 07-11-0083-CR
Â
IN THE
COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL D
Â
MAY
2, 2011
Â
Â
RONALD LYNN WADSWORTH,
Â
                                                                                        Appellant
v.
Â
THE STATE OF TEXAS,Â
Â
                                                                                        Appellee
___________________________
Â
FROM THE COUNTY CRIMINAL COURT NO. 4 OF
DALLAS COUNTY;
Â
NO. MB0934577-E; HONORABLE TERESA
TOLLE, PRESIDING
Â
Â
Memorandum
Opinion
Â
Â
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
           Ronald Lynn
Wadsworth was convicted after a bench trial of evading arrest and sentenced to
sixty days confinement in the county jail. He contends the evidence is legally
insufficient to sustain that conviction and that the trial court erred in
admitting evidence of a syringe found in his pocket. We affirm the judgment.
           Legal Sufficiency
           We review
the legal sufficiency of the evidence under the standard discussed in Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Next,
the State was required to prove that appellant intentionally fled from a person
he knew was a peace officer attempting lawfully to arrest or detain him. See Tex. Penal Code Ann. §38.03(a) (Vernon
2003). Appellant argues that the
attempted detention or arrest was unlawful because there was no reasonable
suspicion that he had been, was, or soon would be engaged in criminal activity.Â
          The record shows that the officers had
the following information before chasing and detaining appellant. First, a vehicle was seen driving around the
neighborhood multiple times. Second,
that same vehicle parked in the driveway of a vacant house. Third, two men exited the vehicle. Fourth, the front door of the house was
unlocked but nonetheless barricaded by furniture. Fifth, the sliding door on the back of the vacant
house was open. Sixth, one man was
exiting the back door. Seventh, that man
initially attempted to deceive the officers by telling them that he was there
alone, contrary to what the officers had already been told. Eighth, the same person represented that he
was there simply to obtain tires from the backyard, which story failed to
explain why he was in the house. Ninth,
after eventually being told by the first detainee that there was indeed someone
else in the house (appellant), appellant ignored an officerÂs directive to come
out. Tenth, rather than reply, appellant
fled the scene and refused to stop until caught by the police. Viewed in their totality, the circumstances were
enough to provide an officer reasonable suspicion to believe that criminal
activity was afoot so as to justify appellantÂs detention. We have here evidence of conduct akin to
casing a neighborhood, a visitation to a known vacant house by those casing the
neighborhood, a barricaded front door to a vacant house, an open rear door to a
vacant house, misrepresentations uttered or attempts at deception engaged in by
appellantÂs colleague, and flight on the part of appellant. See
Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (stating
that evidence of flight and other guilty demeanor may tend to connect a
defendant with a crime). The first issue
is overruled.
Admission of
Evidence
           Appellant
also complains of the admission into evidence of testimony by an officer that a
hypodermic needle was found in his pocket.Â
He objected to the evidence as irrelevant and a violation of Texas Rules
of Evidence 403 and 404.[1]Â However, he did not object to the same
officer testifying that a Âsmall narcotics baggie was also found on him at the
scene. We overrule the issue.
           We review
the trial courtÂs ruling under the standard of abused discretion. Walters v. State, 247 S.W.3d 204, 217
(Tex. Crim. App. 2007). Next, evidence of extraneous offenses may be admitted
for the limited purpose of proving motive.Â
Tex. R. Evid. 404(b). For example, admitting it to establish an
accusedÂs motive for evading arrest has been held permissible. See
e.g. Guerra v. State, No. 07-09-0238-CR, 2010 Tex. App. Lexis 5655, at *16 (Tex. App.ÂAmarillo July 19, 2010, pet. denied) (so stating); West v. State, No. 05-04-01218-CR & No. 05-04-01219-CR, 2005
Tex. App. Lexis 6495, at *5 (Tex.
App.ÂDallas August 16, 2005, no pet.) (finding no abuse of discretion in
allowing evidence of false identification documents found in the defendantÂs
vehicle to prove the defendantÂs motive in evading arrest).[2]Â And, at the very least, whether appellantÂs
possession of a syringe and narcotics serves to make it more likely than not
that he intentionally fled from a policeman falls within the zone of reasonable
disagreement.  Thus, we cannot say that
the trial courtÂs decision to admit the evidence constituted an abuse of
discretion.Â
           The judgment
is affirmed.
Â
                                                                                   Brian
Quinn
                                                                                   Chief
Justice
Â
Do not publish.
[1]Appellant
does not discuss either Rule 403 or 404 on appeal. Thus, we do not consider them as potential
grounds for reversal.
[2]Compare
Couret v. State, 792 S.W.2d 106 (Tex.
Crim. App. 1990), a case cited by appellant, in which the defendant was charged
with burglary, and the court held evidence that he had a needle in his pocket
inadmissible because there was no suggestion that he committed burglary to
support a drug habit. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2986779/ | Order filed, May 30, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00368-CV
____________
BOWEN ZHU AND JAIN YU, Appellant
V.
KAI C. LAM AND THE HOUSEHOLD REALTY, INC., Appellee
On Appeal from the Co Civil Ct at Law No 3
Harris County, Texas
Trial Court Cause No. 997726
ORDER
The reporter’s record in this case was due May 28, 2013. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Laura Cutherell, the official court reporter, to file the record in
this appeal within 30 days of the date of this order.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3803507/ | This is an appeal from an order of the Corporation Commission requiring the railway company to stop its interstate trains Nos. 5 and 6 on flag at the station of Cameron. An identical order relating to the same town was reversed by this court inSt. L. S. F. R. R. Co. v. Reynolds et al., 26 Okla. 804,110 P. 668. As there is no material difference between the facts considered at that time and those disclosed by the present record, the order now involved must also be reversed.
It is so ordered.
TURNER, C. J., and DUNN and HAYES, JJ., concur; WILLIAMS, J., disqualified and not participating. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2899978/ | IN THE SUPREME COURT OF IOWA
No. 15–0641
Filed September 4, 2015
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
MICHAEL HOCINE SAID,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
The grievance commission reports the respondent committed
multiple ethical violations and recommends a thirty-day suspension of
the attorney’s license. LICENSE SUSPENDED.
Charles L. Harrington and Teresa Vens, Des Moines, for
complainant.
Matthew C. McDermott of Belin Lamson McCormick Zumbach and
Flynn, Des Moines, for respondent.
2
CADY, Chief Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged
attorney Michael Hocine Said with violating the rules of professional
conduct for failing to communicate with his client, making a false
statement to the court, and failing to comply with fee and trust account
requirements. Following a hearing, the Grievance Commission of the
Supreme Court of Iowa found Said violated several rules and
recommended a thirty-day suspension. On our review, we find Said
violated the Iowa Rules of Professional Conduct and impose a thirty-day
suspension.
I. Background Facts and Prior Proceedings.
Michael Said is an Iowa lawyer who is engaged in the practice of
law in Des Moines. He graduated from law school in 1989 and received
an LL.M. in international studies in 1990. He worked in Washington,
D.C., before moving to Iowa with his wife. Said was admitted to practice
law in Iowa in 1994. He founded his own law firm in 1999 and currently
practices with two other attorneys. His primary areas of practice are
immigration law and criminal defense. Said is fifty-five years old. He
has received four prior private admonitions.
Said is known to be a zealous, competent advocate who is devoted
to his clients. He has a good reputation among other lawyers. Said also
provides volunteer legal services to needy Iowans through a variety of
entities. He was cooperative with the Board throughout the proceedings,
was remorseful for his conduct, and has taken corrective measures to
prevent future problems.
The disciplinary action originates from Said’s conduct in
representing a client in a deportation proceeding. The facts were
revealed in a disciplinary hearing before the grievance commission on
3
January 23, 2015, after the Board filed a complaint on September 15,
2014.
The client, Pedro Hernandez, hired Said on June 1, 2006, after the
Department of Homeland Security commenced removal proceedings
against him. Said and Hernandez entered into a flat-fee contract of
$5200 for representation in the deportation case before the Executive
Office of Immigration Review. Hernandez paid $2600 on that day and
paid the remainder in monthly installments over the following nine
months. The written agreement included a provision authorizing Said to
withdraw seventy-five percent of the advance fee upon the filing of the
“application packet,” with the remainder withdrawn “as worked.”
Said placed the flat-fee advance payments into his trust account
and began making periodic withdrawals of various amounts shortly after
the initial deposit. He did not notify Hernandez of any of the
withdrawals, and he withdrew most of the funds by the end of 2007.
The proceedings against Hernandez were involved and spanned
several years, building to a hearing before an immigration judge in
January 2012. On October 15, 2012, the immigration court issued an
order denying Hernandez’s application to cancel the removal. It did,
however, grant him the opportunity for voluntary departure in lieu of
removal. The order was sent to Said’s office while the legal assistant
responsible for distributing the mail was on maternity leave and was
subsequently misplaced. It was not discovered until November 26, after
the thirty-day period for appeal had expired.
Said and another attorney in the office promptly prepared a motion
to stay deportation and a notice of appeal. Both documents were filed
with the Board of Immigration Appeals (BIA). The attorneys sought relief
based on the misplaced order. In particular, the motion to stay
4
deportation explained that Hernandez did not receive timely notice of the
order through no fault of his own and that Said was “preparing” a notice
of his conduct in missing the appeal deadline for review by the attorney
disciplinary board. Said further alleged in the motion that the notice
would be sent to the BIA under separate mailing, and he would forward a
copy of the notice to the immigration court after filing it with the
disciplinary board. Said, however, never self-reported his conduct to the
disciplinary board and, in turn, never forwarded any notice to the
immigration court. The BIA subsequently denied the relief sought by
Said for Hernandez on January 31, 2013.
Said presented evidence at the commission hearing that he
promptly told Hernandez about the immigration court order and the
missed deadline and that he further obtained the approval of Hernandez
to proceed with his case. Hernandez, however, testified Said did not
inform him of any of these matters until much later. Hernandez said he
was not told of the removal order or the missed appeal deadline until a
meeting with Said in March 2013. At that time, Said and Hernandez
discussed the problem, and Hernandez decided to obtain new counsel.
To support his claim that Said never told him about the removal order
and the missed deadline until March 2013, Hernandez testified that he
traveled by airplane after December 2012 and would never have done so
if Said had told him about the existence of a removal order, due to the
immediate risk of apprehension and deportation.
II. Board Complaint.
The Board charged Said with multiple violations of the Iowa Rules
of Professional Conduct and related court rules. Count I included the
violations relating to Said’s communication with Hernandez and the
immigration court. Said was charged with violating rules 32:1.4(a)(3)
5
(keep client reasonably informed), 32:1.4(b) (explain matters to extent
reasonably necessary for client to make informed decisions), and
32:3.3(a)(1) (candor with tribunal) of the Iowa Rules of Professional
Conduct. Count II encompassed violations relating to trust account
maintenance and fee payment. The Board charged Said with violating
Iowa Rule of Professional Conduct 32:1.15(c) (withdraw fees only as
earned) and four Iowa Court Rules under rule 32:1.15(f): rules 45.2(2)
(maintain complete records and provide accounting 1), 45.10(3)
(withdrawal of flat fee), 45.7(3) (withdraw fees as earned), and 45.7(4)
(notification and accounting upon withdrawal).
Following the January 2015 disciplinary hearing, the grievance
commission found the Board established Said violated all the rules in the
complaint by a “convincing preponderance of the evidence.” The
commission recommended Said’s license be suspended for thirty days.
Said asserts his conduct only supports a public reprimand.
III. Scope of Review.
“We review attorney disciplinary matters de novo.” Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 201 (Iowa 2015).
“Attorney misconduct must be proven by a convincing preponderance of
the evidence.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bartley, 860
N.W.2d 331, 335 (Iowa 2015). “We respectfully consider the
commission’s findings and recommendations, but are not bound by
them.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Engelmann, 840
N.W.2d 156, 158 (Iowa 2013). Upon a finding of misconduct, we may
1Because the violations occurred in 2006–2007, we apply the Iowa Court Rule
that was then in effect. In 2012, rule 45.2(2) was split with accounting requirements
remaining in rule 45.2(2), and records maintenance requirements greatly expanded and
explained in rule 45.2(3).
6
impose a greater or lesser sanction than recommended by the
commission. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ricklefs, 844
N.W.2d 689, 697 (Iowa 2014).
IV. Violations.
A. Duty to Keep Client Informed. We first consider the charge
that Said neglected his client by failing to keep him reasonably informed
about the status of his case. Iowa R. Prof’l Conduct 32:1.4(a)(3). The
commission found Said neglected his client by failing to notify him of the
removal order during and after the appeal period. Said claimed his
conduct in missing the appeal deadline was inadvertence, not
professional neglect. He also asserted he promptly informed his client
about the oversight after the appeal deadline was missed and that he
informed him of the steps he had taken to seek an appeal prior to the
time that he filed a motion to stay deportation and notice of appeal.
Professional neglect is more than an isolated instance of negligence
and “normally involves more than a single act or omission.” Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kennedy, 684 N.W.2d 256,
260 (Iowa 2004). Thus, “[a]cts or omissions resulting from mere
inadvertence or errors of judgment made in good faith do not generally
justify attorney discipline.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Dunahoo, 730 N.W.2d 202, 206 (Iowa 2007). On the other hand, the
failure to perform multiple obligations that the lawyer has assumed,
either through indifference or a conscious disregard for responsibilities
owed to the client, may rise to the level of professional neglect. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 438 (Iowa
2012).
The missed deadline in this case, by itself, would not support a
finding of neglect in violation of rule 32:1.4(b). The conduct by Said,
7
however, in failing to reasonably inform the client about the status of the
case following the missed deadline would support a finding of neglect.
Thus, the resolution of this issue ultimately depends upon the resolution
of the conflicting evidence presented at the commission hearing.
If evidence at a commission hearing is in conflict, we normally
defer to the credibility determination made by the commission. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 659 (Iowa
2013); see also Iowa Supreme Ct. Att’y Disciplinary Bd. v. Weiland, 862
N.W.2d 627, 639 (Iowa 2015). The commission in this case found Said
did meet with his client after the missed deadline was discovered, but did
not inform him of the matter. The commission rejected Said’s contrary
evidence and found he delayed in informing his client of the problem for
several months. We defer to the findings of the commission and
conclude Said violated rule 32:1.4(a)(3) by failing to keep his client
reasonably informed about the status of the case.
B. Duty to Explain Matters to Client. We next consider the
charge that Said failed to “explain a matter [to his client] to the extent
reasonably necessary to permit the client to make [an] informed
decision[] regarding the representation.” Iowa R. Prof’l Conduct
32:1.4(b). The commission found Said should have promptly advised his
client about the process of asserting a claim of ineffective assistance of
counsel as grounds for relief from the missed deadline, and he did not do
so until March 2013.
Since we find, as the commission did, that Said did meet with his
client on December 6, we also conclude he violated rule 32:1.4(b) by
failing to explain the missed deadline matter at that time so that the
client could make an informed decision about the representation. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Mendez, 855 N.W.2d 156, 170
8
(Iowa 2014); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Yang, 821 N.W.2d
425, 430 (Iowa 2012). The client should have been given information by
Said to better participate in the objective of the representation. See Iowa
R. Prof’l Conduct 32:1.4(b) cmt. 5.
C. Duty Not to Make False Statements. We next consider the
charge that Said knowingly made a false statement of fact to a tribunal,
or knowingly failed to correct a false statement. Id. r. 32:3.3(a). The
commission found Said falsely alleged in the motion for stay of
deportation filed with the BIA that he was “preparing” a “notice of this
matter for review by the Ethics Board,” and would “forward [the] filing to
the Board of Immigration Appeals” in support of the accompanying
motion to permit a late appeal.
Although Said never prepared a notice to the disciplinary board
and never forwarded any notice to the BIA, there was evidence in the
record that Said was working with an associate in his firm after the
missed deadline was discovered to protect the interests of his client.
This work included a discussion about making a report to the attorney
disciplinary board and using this report to permit the client to proceed
with an appeal based on ineffective assistance of counsel. When a
motion to reopen is based on a claim of ineffective assistance of counsel
due in part to a violation of ethical or legal responsibilities, “the motion
should reflect whether a complaint has been filed with the appropriate
disciplinary authorities regarding such representation, and if not, why
not.” In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (noting a report
to the disciplinary authorities is necessary “to deter meritless claims of
ineffective representation” and reinforce standards of conduct). Said,
however, subsequently failed to self-report to the Board. Said claims
9
these circumstances do not support a finding that he knew the statement
was false at the time it was made.
Rule 32:3.3 is violated when a lawyer “knowingly . . . make[s] a
false statement.” Iowa R. Prof’l Conduct 32:3.3(a)(1). The word
“ ‘knowingly’ . . . denotes actual knowledge of the fact in question.” Id.
r. 32:1.0(f). In this case, Said knew he made a statement to the
immigration court. The fact in question is whether he knew the
statement was false. He claims it was not false because he intended at
the time he made the statement to send a notice to the disciplinary board
and to forward it to the tribunal, but subsequently forgot.
The statement at issue in this case addressed both the present act
of preparing and filing a notice to the disciplinary board and the future
act of forwarding the notice to the BIA. The statement also informed the
tribunal that notice was being prepared for delivery by mail separate
from the motion being mailed to the tribunal. Overall, the statement
made by Said in the motion communicated to the tribunal that a notice
was going to the disciplinary board in conjunction with the filing of the
motion to the tribunal. Yet, Said acknowledged in his testimony at the
disciplinary hearing that he never prepared any notice. “A person’s
knowledge may be inferred from circumstances.” Id. The evidence does
not support a finding that Said was, in fact, preparing a notice to the
disciplinary board when the statement was made. Under all the
circumstances in this case, we conclude Said had actual knowledge that
the statement to the tribunal was false at the time it was made.
D. Withdrawal of Fees in Client Trust Account. We next
consider the charge that Said did not comply with the requirement to
withdraw fees in a client trust account only as he earned the fees. Id.
r. 32:1.15(c). The commission found Said violated this rule because the
10
withdrawals he made from the trust account did not coincide with his
separate records of the work performed.
The resolution of this charge is made difficult by Said’s poor
recordkeeping practices and the presence of a flat-fee arrangement. Said
argues that the flat-fee arrangement authorized him to withdraw fees at
times that would not necessarily coincide with the time he actually
worked on the case.
A flat fee is a fee for all services a lawyer must perform to complete
the agreed task. Id. r. 45:10(1). A “flat fee [i]s nothing more than an
advance fee payment” and all requirements for advance fees must be
followed. Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Apland, 577
N.W.2d 50, 55 (Iowa 1998). If the flat fee is paid in advance, the fee must
be deposited into the trust account. Iowa Ct. R. 45.10(2). A portion of
the fee may be withdrawn before all work is completed only if the portion
withdrawn has been earned. Id. r. 45.10(3). Yet, under a flat fee, the
portion earned does not necessarily track with the amount of time
devoted to the case. On the other hand, a flat fee does not authorize
withdrawals independent of the work performed or the work remaining to
be performed. See id.
We recognize withdrawal of portions of a flat fee paid in advance
can present difficult questions for lawyers. Yet, these questions can be
minimized by agreements that designate the times withdrawals will be
made and transparent recordkeeping that justifies the withdrawal of fees.
See id.; Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d
910, 918 (Iowa 2011) (noting contemporaneous accounting is necessary
in the event a refund is needed); Iowa Supreme Ct. Att’y Disciplinary Bd.
v. Piazza, 756 N.W.2d 690 697–98 (Iowa 2008) (requiring withdrawals
occur as earned, either at identified reasonable milestones or at the
11
completion of service). The important concept that must prevail is that
the withdrawal of fees be done in a way that promotes trust and
confidence in our legal system. See Boles, 808 N.W.2d at 441. The
client’s right to a refund of unearned fees in the event the client would
discharge the lawyer before the service is complete must be protected.
Iowa Ct. R. 45.10(3).
Said and his client did have a written flat-fee agreement that
provided for the periodic withdrawal of fees. Nevertheless, the
withdrawal terms of the contract had little relevance to the particular
case. The withdrawal terms dealt with those clients seeking to immigrate
to the United States by making an application. The agreement permitted
Said to withdraw seventy-five percent of the flat fee once the application
package was completed, with the remainder to be withdrawn “as
worked.” In this case, the client had entered the United States in 1988
under an asylum visa. He was being removed by the government. He
sought the services of Said to prevent the removal, not to immigrate.
Said was not preparing any application package, and the agreement to
withdraw fees in advance of completing the services in this case did not
apply.
The facts revealed Said periodically withdrew fees with no clear
connection to any milestone in the case, any specific work performed, or
any relationship to the services remaining to be performed. Instead, the
withdrawals were more consistent with the odd and frequent withdrawals
we have disapproved of in the past. See Clarity, 838 N.W.2d at 659. We
find Said violated Iowa Rule of Professional Conduct 32:1.15(c) in making
withdrawals from the advance payment of the flat fee deposited in a trust
account before he earned the portion withdrawn.
12
E. Duty to Comply with Court Rules Governing Trust
Accounts. We next consider the charge that Said violated rule 32:1.15(f)
by failing to comply with a number of court rules governing trust
accounts. Rule 45.2(2) requires an attorney to maintain complete
records of client property that comes into the lawyer’s possession and
regularly account to the client for the property. Iowa Ct. R. 45(2)(2).
Rule 45.10(3) requires any agreements for the withdrawal of flat fees paid
in advance protect the client’s right to a refund of unearned fees if the
lawyer is discharged before the service is completed. Id. r. 45.10(3). It
also repeats the rule 32:1.15(c) admonition that other unearned fees may
not be withdrawn. Id. Rule 45.7(3) requires a lawyer to deposit an
advance fee from a client into the trust account and withdraw it only as
it is earned. Id. r. 45.7(3). Rule 45.7(4) requires a lawyer who accepts an
advance fee to notify the client of the time, amount, and purpose of any
withdrawal, together with a complete accounting. Id. r. 45.7(4). The
Board claims Said violated each court rule.
Said admitted he violated rule 45.7(4) by failing to provide written
notification to his client when he withdrew fees. He also violated rule
45.2(2) by failing to properly account for the funds. We do not consider
the remaining claims that Said violated rule 45.10(3) and rule 45.7(3)
when he withdrew fees before they were earned. The Board prosecuted
Said for this conduct under rule 32:1.15(c). Nevertheless, we find Said
violated rule 32:1.15(f) by failing to comply with the court rules governing
trust accounts.
V. Sanctions.
“There is no standard sanction for particular types of misconduct.”
Clarity, 838 N.W.2d at 660. In the imposition of sanctions, we consider
the violations at issue, the need to deter future violations, the protection
13
of the public, the reputation of the bar, the attorney’s fitness to practice
law, and aggravating and mitigating circumstances. Bartley, 860 N.W.2d
at 337.
In neglect cases, our sanctions have generally ranged from a public
reprimand to a six-month suspension. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61 (Iowa 2009). When neglect
is combined with other misconduct, we typically impose a suspension.
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d 96,
109 (Iowa 2012). Trust account violations alone can result in public
reprimand, license suspension, or revocation, depending on the severity
and frequency of violation and whether misappropriation resulted. See
Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 588
(Iowa 2011).
When determining what sanctions to impose, we consider those
imposed in similar cases while remaining aware of the different
circumstances in each case. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Humphrey, 812 N.W.2d 659, 666 (Iowa 2012). In 2012, we publicly
reprimanded an immigration attorney who failed to communicate the
need to file an ethics complaint to proceed with an ineffective-assistance
appeal, but did not have any trust account violations before us. Yang,
821 N.W.2d at 430–31. In Dolezal, the attorney neglected client matters,
failed to deposit client funds into a trust account, and failed to provide
proper accounting, resulting in a thirty-day suspension. 796 N.W.2d at
922–23 (noting public reprimand would be more appropriate in a case
with a single instance of misconduct). In Boles, the attorney’s “flagrant,
multiyear disregard for the billing and accounting requirements of our
profession,” combined with subsequent corrections to trust account
practices, also resulted in a thirty-day suspension. 808 N.W.2d at 441–
14
42. In a case in which the attorney failed to refund unearned fees in
addition to deficient accounting, we suspended the attorney’s license for
sixty days. Parrish, 801 N.W.2d at 587, 590.
We also consider all mitigating and aggravating circumstances in
each case. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Adams, 749 N.W.2d
666, 670 (Iowa 2008). We consider prior discipline as an aggravating
factor. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 841 N.W.2d
114, 127 (Iowa 2013). Said had been the subject of four private
admonitions from the Iowa Supreme Court Attorney Disciplinary Board
starting in 2003, one of which included an admonishment for conduct
similar to one of the violations in this case. While “[p]rivate reprimands
are not discipline,” they provide notice of deficiencies in regards to
particular ethical requirements by attorneys. Van Ginkel, 809 N.W.2d at
110.
Said argues lack of harm to his client should be a mitigating factor.
Hernandez agreed he was not harmed by the trust account violations,
and he received all the services he was entitled to under his flat-fee
contract. Said argues his client was able to spend an additional two
years with his family during the pendency of the legal proceedings.
Further, Said points to a November 2014 executive order by the
President of the United States that could allow his client to avoid
deportation. However, the absence of client harm is not attributable to
Said’s actions, but instead is due to the pace of immigration proceedings
and a high-level policy change that was not in effect at the time of the
negligent and neglectful actions. Therefore, the absence of client harm is
not a mitigating factor. See Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Baldwin, 857 N.W.2d 195, 215 (Iowa 2014) (finding that a return to the
15
original state after the problems did not mean no harm resulted from the
neglect).
Nevertheless, mitigating factors have also been established. Said
has taken corrective measures, including cross-training staff, improving
trust account and billing practices, and employing an accountant to
ensure trust account compliance. See Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Nelson, 838 N.W.2d 528, 543 (Iowa 2013) (considering
the improvement of billing and accounting practices and the employment
of additional help as mitigating factors). He provides legal services to an
underserved community. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Taylor, 814 N.W.2d 259, 268 (Iowa 2012) (“Providing legal representation
to an underserved part of the community is a significant mitigating
factor.”). The service by an attorney to a vulnerable population with
limited English language skills and lack of familiarity with the American
legal system can be a mitigating factor. See Mendez, 855 N.W.2d at 173.
Said has also performed substantial pro bono work, another mitigating
factor. Boles, 808 N.W.2d at 442 (finding extensive community service
and pro bono practice to be a significant mitigating factor).
After careful consideration of all the relevant facts and
circumstances of the case, we agree with the commission that a thirty-
day suspension is appropriate. Said took proper action upon the
discovery of the appeal oversight, but did not timely communicate to his
client any of the events that followed or the consequences of those
events. He then failed to perform the actions he had told the court were
in progress and did not correct his statement to the court to admit his
inaction. Said also did not follow adequate billing and accounting
practices for a period of years. The business side of a law practice may
not be an area on which attorneys want to spend their time, but it
16
safeguards important client interests and requires the same attention to
detail as the entire practice of law.
VI. Conclusion.
We suspend Said’s license to practice law in this state with no
possibility of reinstatement for thirty days from the filing of this opinion.
The suspension applies to all facets of the practice of law. See
Iowa Ct. R. 35.13(3). Said must comply with the notification
requirements of Iowa Court Rule 35.23. Absent an objection by the
Board, Said shall be automatically reinstated after the thirty-day
suspension period under the condition that all costs assessed under rule
35.27 have been paid. Id. r. 35.13(2). We tax the costs of this action to
Said pursuant to Iowa Court Rule 35.27(1).
LICENSE SUSPENDED. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047371/ | [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 2, 2012
No. 11-13992
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cv-01965-WSD
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellant,
versus
MORGAN KEEGAN & COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 2, 2012)
Before BARKETT and HULL, Circuit Judges, and HINKLE,* District Judge.
PER CURIAM:
In this civil enforcement action, the Securities and Exchange Commission
(“SEC”) sued Defendant Morgan Keegan & Co. (“Morgan Keegan”) for violating
§§ 10(b) and 15(c)(1) of the Exchange Act, § 17(a) of the Securities Act, and SEC
Rule 10b-5. The SEC alleges that, in the critical time period of late 2007 and early
2008, Morgan Keegan’s brokers (1) misrepresented that auction rate securities
(“ARS”) were safe cash-equivalents with no liquidity risk and (2) despite myriad
auction failures and significant trouble in the ARS market, continued to
recommend ARS as short-term, liquid investments and failed to disclose the
known liquidity risk. The district court granted summary judgment to Morgan
Keegan. After review and with the benefit of oral argument, we vacate and
remand for further proceedings.
I. FACTUAL BACKGROUND
Defendant Morgan Keegan is an investment firm with more than 1,200
brokers and 300 offices throughout the southeast. The firm offers financial
products and services, such as securities brokerage, asset management, financial
*
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
2
planning, mutual funds, securities underwriting, sales and trading, and investment
advice. Morgan Keegan participated in the ARS market by underwriting and
selling ARS that were AAA-rated, issued by municipalities, and tax exempt.
Morgan Keegan underwrote approximately $1.1 billion of ARS. Morgan Keegan
also sold ARS underwritten by other firms. This action centers on Morgan
Keegan’s sales of ARS.
A. Auction Rate Securities
In the early 1980s, ARS were first offered for sale in the United States.
ARS were generally issued as municipal bonds, corporate bonds, or preferred
stock. By the beginning of 2008, there were approximately $330 billion of
outstanding ARS.
ARS typically have long-term maturities, or no maturity at all. Yet, ARS
were conceived as highly liquid investments designed to serve as an equivalent to
money-market funds and are structured for short-term holding periods.
ARS have a floating interest rate (or dividend) that resets periodically. The
interest rate (or dividend) for an issuance of ARS is reset through a “Dutch
auction” that occurs every 7, 28, or 35 days, depending on the governing
documents. In a Dutch auction, investors purchase and sell the securities at par
value, typically $25,000 per share. In advance of an auction, a potential investor
3
submits a bid (or “buy order”) to the managing broker–dealer (typically the
underwriter of the issuance), specifying the number of ARS shares the investor
wants to purchase and the minimum interest rate the investor will accept. Existing
holders of ARS can submit “sell orders” to sell a specified number of shares at a
certain interest rate, or “hold orders” to hold a specified number of shares.
An auction succeeds, or “clears,” if investors submit enough “buy orders” to
cover the “sell orders.” In a successful auction, the “clearing rate” is the lowest
interest rate that will cover all the “buy orders.” The clearing rate applies to each
buy order that is accepted, regardless of whether the buyer was willing to accept a
lower rate.
An auction fails if there are insufficient buy orders to purchase all of the
shares offered for sale. If an auction fails, the ARS interest rate resets to the
“maximum rate” until the next auction, and all of the current holders continue to
hold the securities, with minor exceptions. The maximum rate is usually either a
fixed rate or a floating rate, depending on the governing documents. Although an
auction failure means that the ARS investment is illiquid, the holder continues to
receive interest payments at the maximum rate, which is intended to compensate
the holder for the loss of liquidity until the next successful auction. In other
words, even if an auction fails, the issuer must continue to make all interest
4
payments due to holders of the ARS.
Underwriters of ARS, such as Morgan Keegan, historically prevented
auction failure by placing “supporting” bids to purchase, for their own accounts,
the excess securities offered for sale. The underwriter then would typically hold
these securities in its own inventory. Morgan Keegan, either as buyer or seller,
submitted orders in auctions for its own account to help ensure the liquidity of its
customers’ ARS.
B. 2008 Collapse of the ARS Market
Historically, ARS auctions rarely failed, and the ARS market was a
relatively safe and liquid market. Beginning in the second half of 2007, however,
ARS auctions began to fail. In a November 2007 email, the head of Morgan
Keegan’s short-term products desk commented, “We are in a credit crunch & it
will get worse before it gets better. . . Wall Street can’t carry anymore [ARS]
paper.”
In early February 2008, auctions failed at increasing rates, restricting the
ability of investors to liquidate their ARS and access their funds. This increased
auction failure resulted from most ARS underwriters, other than Morgan Keegan,
ceasing to place supporting bids. On February 8, 2008, the first auction co-
brokered by Morgan Keegan failed. In an email sent that day, Frank Phillips,
5
Morgan Keegan’s head of retail trading, stated that Morgan Keegan had
suspended all buying of ARS from dealers other than Morgan Keegan. On
February 9, 2008, Phillips sent an email to Kevin Giddis, the head of Morgan
Keegan’s retail fixed income trading desk, expressing concern about ARS auction
failures and brokers’ misunderstandings of ARS:
The [ARS auction] fail[ures] have potential to kill consumer
confidence and could cause a panic to sell based on fear of losing
liquidity. If this scenario of yelling fire in a crow[ded] room plays out,
then other types of auction rate securities will begin to fail and I fear,
will show that a lot of brokers have misrepresented [the] product to their
clients.
Being that I trade the auction rates, I know a lot of brokers do not
understand the product fully and do not know what a failed auction
means. If the broker doesn’t understand what a failed auction is, do you
think the customer does? Unfortunately, I don’t think so.
By February 12, 2008, there were approximately 100 failures in auctions in which
Morgan Keegan played some participating role (although not as lead manager).
On February 13, 2008, many major ARS underwriters stopped supporting
auctions, and auctions failed on a widespread basis. On February 15, 2008, Giddis
sent Morgan Keegan’s brokers an email titled “AUCTION-RATE UPDATE-
PLEASE READ.” The email included an attachment describing the state of the
ARS market and states, “Share the information with your customer but please
don’t send out.” Marked for internal use only, the attachment describes the ARS
market issues as “liquidity-driven” rather than “credit-driven,” and includes
6
background information about what happens when an auction fails. In a section
titled “Advice to Investors and Financial Advisors,” the attachment states that “the
credit quality of the auction rate market remains strong” and that no investor has
lost principal on a deal in which Morgan Keegan was involved. The attachment
further advises brokers to avoid the “impulse” to sell their customers’ ARS:
We stress the importance of ignoring the impulse to “test” the process
by selling your clients’ ARS holdings in a wholesale manner simply
because you or your clients might be worried you will not be able to sell
them; we maintain our commitment to supporting the ARS market to the
extent possible, but this is only possible with your cooperation.
Remember, your clients are being well-compensated for holding their
ARS positions and the liquidity concerns should eventually sort
themselves out.
Morgan Keegan continued to support auctions by buying ARS for its own
account and thereby provided liquidity for its ARS customers. As a result,
Morgan Keegan’s ARS inventory increased from $18 million to $54 million by
February 8, 2008, to $133 million by February 15, 2008, to $179 million by
February 21, 2008. On February 22, 2008, Giddis again emailed Morgan
Keegan’s brokers and noted that some auctions were still succeeding and that none
of the auctions for which Morgan Keegan was the lead manager had failed.
On February 27, 2008, Morgan Keegan elected to cap its ARS inventory at
$182 to 185 million. After reaching the inventory cap, Morgan Keegan stopped
purchasing ARS for its own account. On February 28, 2008, the first Morgan
7
Keegan-managed auction failed. As a result of the 2008 market collapse, Morgan
Keegan’s ARS customers could not sell their securities through the auction
process or liquidate their investments.1 In the end and as of March 20, 2008,
Morgan Keegan’s customers were left holding approximately $2.2 billion of ARS,
including approximately $1.1 billion of ARS underwritten by Morgan Keegan.2
C. 2006 SEC Investigation of Morgan Keegan’s Intervention in ARS Auctions
In 2006 (prior to this 2009 action), the SEC investigated the ARS
underwriting and auction procedures of Morgan Keegan and other broker–dealers.
Ultimately, the SEC issued a May 31, 2006 cease-and-desist order against Morgan
Keegan and several other broker–dealers. See In re Bear, Stearns & Co., et al.,
Securities Act Release No. 8684, Exchange Act Release No. 53888, 88 SEC
Docket 259 (May 31, 2006).
The SEC charged each of the broker–dealers, including Morgan Keegan,
with violating § 17(a)(2) of the Securities Act by engaging in improper ARS
auction practices. In settling the SEC’s administrative charges, the broker–dealers
1
The auction failures did not affect customers’ receipt of interest and principal payments
as scheduled. Further, the ARS market did not completely dry up because some investors were
willing to sacrifice liquidity for the higher interest payments—the maximum rate—resulting from
the auction failures.
2
The complaint alleges that, as of July 15, 2009, Morgan Keegan customers held about
$272 million of illiquid ARS, approximately $50 million of which was underwritten by Morgan
Keegan.
8
consented to the issuance of a cease-and-desist order, censure, and payment of a
civil fine.
The May 31, 2006 cease-and-desist order states that the broker–dealers, or
at least some of them, committed the following “violative practices”:
(1) completing “open” or “market” bids, which allowed the broker–dealer to
designate some of the bid’s parameters and which advantaged the investors
submitting open or market bids by displacing other investors’ bids; (2) without
proper disclosure, intervening in auctions to prevent failed auctions or to set a
market rate; (3) prioritizing certain customers’ bids to increase the likelihood that
those bids would be filled; (4) submitting or revising bids after auction deadlines;
(5) improperly allocating ARS to investors who bid at the clearing rate instead of
allocating them pro rata, as stated in the disclosure documents; (6) in
oversubscribed auctions, not requiring certain customers to purchase the pro rata
share of ARS for which they had bid, even though the bids were supposed to be
irrevocable, (7) providing certain customers with returns above the auction
clearing rate based on “an express or tacit understanding reached prior to or during
an auction”; and (8) providing different “price talk” to certain investors, giving
those investors an advantage in determining what rate to bid. Id. at 5-6. In a
footnote, the SEC specifically noted that it was not prohibiting broker–dealers
9
from bidding for their own accounts if proper disclosures were made.
In the cease-and-desist order, each broker–dealer agreed to provide all of its
current ARS customers and the ARS issuers “with a written description of the
[broker–dealer’s] material auction practices and procedures.” Id. at 8.
Additionally, each broker–dealer agreed to provide all first-time ARS purchasers
with a written description of the broker–dealer’s “material auction practices and
procedures.” Id.
The cease-and-desist order allows a broker–dealer to fulfill this notice
requirement as to first-time ARS purchasers “by including a written notification
with the trade confirmation, that a written description of the [broker–dealer’s]
material auction practices and procedures is available on a specified web page of
the [broker–dealer’s] website accessible” to those first-time purchasers. Id.
(emphasis added). This written notification with the trade confirmation (1) “must
be set forth prominently in such a manner as to call it to the attention of the
reader” and (2) must state that a written description of the broker–dealer’s
“material auction practices and procedures” will be sent to the purchaser upon
request. Id.
D. Trade Confirmations Sent to ARS Purchasers
Each Morgan Keegan customer who purchased ARS received a trade
10
confirmation after purchasing ARS. The trade confirmations primarily provide
information about each transaction, including the security purchased, the price, the
trade date, and the issuance and maturity dates of the security.
Morgan Keegan’s trade confirmations state, “For information regarding the
auction procedures refer to the Morgan Keegan website. Copies available upon
request.” The home page of Morgan Keegan’s website is listed in the top right
corner as www.morgankeegan.com. Although the trade confirmations refer to
“auction procedures,” they do not refer to “auction practices and procedures.”
Importantly for this case, the trade confirmations do not identify a specific web
page on Morgan Keegan’s website that contains its ARS auction practices and
procedures.
Morgan Keegan’s trade confirmations also do not refer to liquidity risk. At
best, the back side of the trade confirmations contain a generic statement that
investments in securities involve “investment risks.” Specifically, the back side of
each trade confirmation states, “Securities are not deposits or obligations of any
bank. . . . Investments in securities involve investment risks, including the loss of
principal.”3
The trade confirmations state that (1) “[i]f this or any transaction is in error
3
This statement is in the same font size as the rest of the information but is in bold
typeface and all capital letters.
11
or not in accordance with your understanding or instructions, please inform our
Customer Service Department immediately,” and (2) the transaction is “conclusive
and binding if not objected to in writing within ten business days.”
E. ARS Web Page
Although the trade confirmations do not mention liquidity risk, an ARS web
page posted on Morgan Keegan’s website shows that Morgan Keegan knew how
to advise customers about liquidity risk. The ARS web page first describes ARS
as “A Great Place for Short-Term Money” and states that many investors find ARS
“to be an attractive alternative” to tax-exempt money market funds, commercial
paper, certificates of deposit, and U.S. Treasury bills. However, the ARS web
page then cautions that “ARS provide (but do not guarantee) liquidity at par
through weekly and 35 day auctions.”
More significantly, this same ARS web page later on specifically mentions
the liquidity risk associated with ARS, and distinguishes between ARS and
money-market funds, as follows:
You should be aware that investing in auction rate securities involves
certain considerations that differentiate such securities from money
market investment instruments.
• Liquidity Risk—The ability of an investor to dispose of a share of an
auction rate security may be largely dependent on the success of the
auction.
12
There is no assurance that any particular auction will be successful, and
neither the issuer nor any broker dealer is obligated to take any action
to ensure that an auction will be successful. In the absence of successful
auctions, there is no assurance that a secondary market for the auction
will develop or, if such a market does develop, that shares will trade at
or close to par.
The SEC does not contest that the ARS web page, as a whole, adequately
describes the liquidity risk of ARS. The SEC complains, however, that Morgan
Keegan did not give the ARS information on this web page directly to its
customers and did not even direct its customers to this web page or make the ARS
web page easily accessible to its customers. The SEC notes that accessing this
ARS web page required four separate navigation steps from Morgan Keegan’s
homepage. And, despite the requirements in the cease-and-desist order, Morgan
Keegan’s trade confirmations did not provide customers with the URL for the
ARS web page where they could find the description of Morgan Keegan’s auction
practices and procedures.
Although it asserts that its ARS web page was easily accessible, Morgan
Keegan has not cited to us any evidence showing the structure of its website or the
navigation necessary to find its ARS web page. The only evidence in the record is
a five-page printout of an archived version of the web page itself.
F. ARS Manual
In addition to this ARS web page, Morgan Keegan relies on its 24-page
13
manual (the “ARS Manual”) describing its auction practices and procedures.
After the May 31, 2006 cease-and-desist order, Morgan Keegan prepared and sent
this ARS Manual to all customers who already held ARS at the time the ARS
Manual was prepared.
Like the ARS web page, the ARS Manual shows that Morgan Keegan was
aware of, and knew how to disclose, the liquidity risk of ARS. For example, the
ARS Manual has the same information quoted above from the shorter ARS web
page that discusses the liquidity risk of ARS. The ARS Manual also warns that
“[h]olders who have submitted sell orders should be aware that, in the event of an
auction failure, they will not be able to sell all, and may not be able to sell any,
securities in the auction.” A section entitled “Risk Factors and Special
Considerations” explains that (1) Morgan Keegan may act as a buyer or seller in
auctions, but is not obligated to do so, and (2) the fact that an auction clears
successfully does not mean that an ARS investment “involves no significant
liquidity or credit risk.” Under a section styled “No Assurances Regarding
Auction Outcomes,” Morgan Keegan warns that it “provides no assurance as to the
outcome of any auction. Nor does Morgan Keegan provide any assurance that any
bid will be successful, in whole or in part, or that any auction will clear at a rate
that a bidder considers acceptable.”
14
Also like the ARS web page, the SEC does not dispute that the ARS Manual
adequately advises about liquidity risk. Rather, the SEC stresses that Morgan
Keegan did not make the ARS Manual’s disclosures readily accessible to new
ARS customers in 2008 and did nothing else to ensure its customers saw or even
knew about the ARS Manual.
It is undisputed that Morgan Keegan did not require its brokers to distribute
copies of the ARS Manual directly to new customers before or after they
purchased ARS. And even though the ARS Manual was apparently posted
somewhere on Morgan Keegan’s website, Morgan Keegan has not cited evidence
showing specifically where it was on the website or how a customer would
navigate to it.4
G. ARS Brochure and New Disclosure Procedure
To underscore that Morgan Keegan knew about, and easily could have
disclosed, the liquidity risk of ARS (especially during the early 2008 time period),
4
The ARS web page in the record is an archived version of a web page, but the ARS
Manual in the record appears to be a hard copy of the Manual. We note that, in the top right side
of the ARS web page, there is the term “Auction Rate Securities Practices and Procedures,”
which is also the full title of the ARS Manual. However, Morgan Keegan’s brief has not cited
evidence to us showing whether this language is a link or, if so, whether the link retrieves the
ARS Manual. In any event, it appears that a customer would have to get to the ARS web page
(or the five-page archived version of the web page that is in the record) and then proceed to the
ARS Manual. The SEC does not dispute that the ARS Manual was somewhere on Morgan
Keegan’s website.
15
the SEC also points both to a Morgan Keegan ARS Brochure (published in hard
copy) and to the effective disclosure policy Morgan Keegan instituted after March
20, 2008.
The ARS Brochure is a short, tri-fold brochure describing Morgan Keegan’s
ARS products and their liquidity risk. The ARS Brochure includes many of the
same liquidity risk disclosures contained on the ARS web page and in the ARS
Manual. For example, the ARS Brochure states that (1) “investing in auction rate
securities involves certain risks that differentiate such securities from money
market investment instruments,” (2) “[t]he ability of an investor to dispose of a
share of an auction rate security may be largely dependent on the success of the
auction,” and (3) “[t]here is no assurance that any particular auction will be
successful, and neither the issuer nor any broker dealer is obligated to take any
action to ensure that an auction will be successful.”
During 2007 and 2008, Morgan Keegan had hard copies of the ARS
Brochure available at some of its office branches.5 Morgan Keegan also emailed
5
Disputing the availability of hard copies of the ARS Brochure, the SEC points out that
Morgan Keegan (1) did not post the ARS Brochure on its public website, (2) did not require the
ARS Brochure to be distributed to each branch office before March 20, 2008, (3) did not track
which branches requested or received hard copies of the ARS Brochure, (4) had no means of
identifying or determining whether hard copies were distributed to brokers at each branch office,
and (5) had no standard practice or procedure regarding where and how hard copies of the ARS
Brochure were displayed, maintained, or disseminated within each branch office.
16
the ARS Brochure to all of its brokers, but there is no evidence that Morgan
Keegan emailed the brochure to customers purchasing ARS. Instead, Morgan
Keegan provided the brochure to customers only upon request.
Morgan Keegan did institute a new disclosure policy on March 20, 2008,
after the collapse of the ARS market. Under the new policy, Morgan Keegan
required prospective ARS customers to sign this statement: “I understand that
many auction rate securities are currently, or have been recently, failing at auction.
I understand that it may be a considerable period of time before liquidity returns to
this investment and I view this with a longer term horizon.”
H. Morgan Keegan’s Alleged Oral Misrepresentations
During the early 2008 auction failures in the ARS market, Morgan Keegan
continued to sell ARS. Between January 2 and March 19, 2008,6 Morgan Keegan
sold approximately $647 million of ARS to about 1,145 customers. This is the
time frame at issue in this SEC enforcement action.
The SEC contends that, in late 2007 continuing through the collapse of the
ARS market in February 2008, Morgan Keegan’s brokers misrepresented ARS
liquidity risk in an attempt to increase sales. The SEC cites the testimony of four
6
The SEC chose to end the time period for this action on March 20, 2008, apparently
because that date was when Morgan Keegan instituted its new policy of requiring ARS customers
to sign a statement that they understood the liquidity risk of ARS and viewed the ARS
investment “with a longer term horizon.”
17
customers who stated that Morgan Keegan brokers misled them regarding the risk
associated with ARS. These four Morgan Keegan customers testified that Morgan
Keegan brokers told them that ARS (1) were “as good as cash”; (2) were “as good
as money”; (3) were “just like money markets and CDs”; (4) were “cash
equivalents to CDs and money markets”; (5) were “just as good as” an investment
in a CD insured by the FDIC; (6) were “completely liquid” except for a “possible
35-day hold”; (7) presented “zero concerns [and] zero risk”; and (8) involved
“absolutely no risk.”
The customers averred that the brokers did not disclose the possibility of an
auction failure and the associated liquidity risk. They testified further that some
Morgan Keegan brokers claimed that ARS investments carried no risk at all. The
SEC contends that these four customers never saw the ARS web page, the ARS
Manual, or the ARS Brochure, and that their brokers never told them where these
documents could be found.
The SEC also submitted written complaints from 14 customers, including
customer letters, civil actions filed in federal court, arbitration statements of claim
filed with the Financial Industry Regulatory Authority, complaints filed with state
regulators, and complaints filed with the SEC. These written complaints identified
similar misrepresentations of the liquidity risk of ARS by Morgan Keegan brokers.
18
II. PROCEDURAL HISTORY
On July 21, 2009, the SEC sued Morgan Keegan for securities fraud in
violation of § 17(a) of the Securities Act (Counts One and Two); § 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder (Count Three); and
§ 15(c)(1) of the Exchange Act (Count Four). The complaint alleged that Morgan
Keegan’s brokers and marketing materials misrepresented ARS as cash
alternatives and omitted mention that ARS carried liquidity risk.7
The SEC’s complaint sought this relief: (1) findings that Morgan Keegan
committed the violations alleged in the complaint, (2) a permanent injunction
prohibiting Morgan Keegan from violating Rule 10b-5, §§ 10(b) and 15(c)(1) of
the Exchange Act, and § 17(a) of the Securities Act, (3) an order requiring Morgan
Keegan “to repurchase all ARS that the Defendant sold prior to March 20, 2008,”
(4) disgorgement of “all ill-gotten gains or unjust enrichment,” and (5) civil
monetary penalties in accord with § 20(d) of the Securities Act and § 21(d)(3) of
the Exchange Act.
Following discovery, Morgan Keegan moved for summary judgment on all
counts on the ground that the undisputed facts failed to show a “material”
7
The complaint also alleged that Morgan Keegan’s brokers were insufficiently trained on
the liquidity risk of ARS and that Morgan Keegan continued to push ARS despite knowledge of
significant and increasing risk associated with ARS. These claims are not on appeal.
19
misrepresentation or omission, as required for liability under the Exchange Act,
the Securities Act, and Rule 10b-5. In a thorough order, the district court granted
Morgan Keegan’s motion. SEC v. Morgan Keegan & Co., 806 F. Supp. 2d 1253
(N.D. Ga. 2011). The district court first analyzed Morgan Keegan’s distribution of
its written disclosures about liquidity risk and concluded they were adequately
distributed. Id. at 1260-62. As to the materiality issue, the district court noted that
oral misrepresentations are not immaterial simply because proper written
disclosures exist but then concluded that “the oral statements of four brokers out
of hundreds would not lead a rational jury to believe that Morgan Keegan, as a
whole, misrepresented the risks of ARS investments to its customers.”8 Id. at
1265.
The district court observed that the Supreme Court’s standard for
materiality—whether a reasonable investor would view certain information as
significantly altering the “total mix” of information available—works well when
(1) a securities dealer makes a misrepresentation to an individual who brings a
private action against the dealer, or (2) when a dealer makes a misrepresentation to
the public, in a press release for example, and the SEC brings an enforcement
8
Although the SEC submitted written complaints by 14 other customers, the district court
declined to consider this evidence on the ground that the statements were inadmissible hearsay.
Morgan Keegan, 806 F. Supp. 2d at 1265 n.12.
20
action on behalf of the public. Id. at 1266. The district court characterized this
case as a “hybrid case where the SEC claims that Morgan Keegan misled the
public through the oral statements made to four individuals.” Id. In granting
summary judgment to Morgan Keegan, the district court concluded that the SEC
“must do more than show a few isolated instances of alleged broker misconduct to
obtain the relief it seeks.” Id.
The SEC appeals.9
III. DISCUSSION
The SEC alleges that Morgan Keegan violated §§ 10(b) and 15(c)(1) of the
Exchange Act, § 17(a) of the Securities Act, and SEC Rule 10b-5. To prove a
violation of § 10(b) or Rule 10b-5,10 the SEC must show (1) a material
misrepresentation or materially misleading omission, (2) in connection with the
purchase or sale of a security, (3) made with scienter. SEC v. Merch. Capital,
LLC, 483 F.3d 747, 766 (11th Cir. 2007). The elements of a § 15(c)(1) claim are
the same as a § 10(b) claim.11 SEC v. George, 426 F.3d 786, 792 (6th Cir. 2005).
9
“We review the entry of summary judgment de novo . . . .” SEC v. Warren, 534 F.3d
1368, 1369 (11th Cir. 2008).
10
Section 10(b) of the Exchange Act is codified at 15 U.S.C. § 78j(b). Rule 10b-5 is
codified at 17 C.F.R. § 240.10b-5.
11
Section 15(c) of the Exchange Act is codified at 15 U.S.C. § 78o(c).
21
To show a violation of § 17(a)(1), the SEC must prove (1) a material
misrepresentation or materially misleading omission, (2) in the offer or sale of a
security, (3) made with scienter. Merch. Capital, 483 F.3d at 766. Finally, to
establish a violation of § 17(a)(2) or 17(a)(3),12 the SEC must show (1) a material
misrepresentation or materially misleading omission, (2) in the offer or sale of a
security, (3) made with negligence. Id.
An important distinction exists between the elements of a private
enforcement action and an SEC enforcement action. In a private enforcement
action under § 10(b) or Rule 10b-5, the plaintiff also must show “justifiable
reliance” on the material misstatement or omission and that the misstatement
caused the plaintiff’s damages. See Bruschi v. Brown, 876 F.2d 1526, 1529 (11th
Cir. 1989). “Justifiable reliance,” however, is not an element of an SEC
enforcement action because Congress designated the SEC as the primary enforcer
of the securities laws, and a private plaintiff’s “reliance” does not bear on the
determination of whether the securities laws were violated, only whether that
private plaintiff may recover damages. See SEC v. Rana Research, Inc., 8 F.3d
1358, 1364 (9th Cir. 1993) (“The SEC need not prove reliance in its action for
injunctive relief on the basis of violations of section 10(b) and Rule 10b–5.”); SEC
12
Section 17(a) of the Securities Act is codified at 15 U.S.C. § 77q(a).
22
v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985) (“Unlike private litigants seeking
damages, the Commission is not required to prove that any investor actually relied
on the misrepresentations or that the misrepresentations caused any investor to
lose money.”); see also Merch. Capital, 483 F.3d at 766 (not including “reliance”
in the elements of a § 10(b) action in an SEC enforcement action).
In its summary-judgment motion, Morgan Keegan challenged only the
SEC’s failure to meet the “materiality” element of each of its claims. Accordingly,
the district court assumed that the SEC had met the other elements, namely that
Morgan Keegan’s brokers made oral misrepresentations or omissions “in
connection with” the purchase or sale of securities, and that these
misrepresentations or omissions were made with scienter or negligence, as
appropriate. Morgan Keegan, 806 F. Supp. 2d at 1259–60. Because both the
district court and the parties on appeal addressed only “materiality,” we do the
same.
A. The Test for Materiality
The U.S. Supreme Court has developed the materiality test in a series of
private actions in which the plaintiff investors alleged that the defendant
company’s public statements were misleading. See Matrixx Initiatives, Inc. v.
Siracusano, 131 S. Ct. 1309 (2011); Basic Inc. v. Levinson, 485 U.S. 224, 108 S.
23
Ct. 978 (1988); TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S. Ct.
2126 (1976). The parties agree that this materiality test also applies in this SEC
enforcement action.
The modern test for determining materiality derives from the Supreme
Court’s 1976 decision in TSC Industries v. Northway, Inc., which involved a
minority shareholder’s allegation that the defendant companies’ joint proxy
statement was materially misleading, in violation of § 14(a) of the Exchange Act.
426 U.S. at 441, 96 S. Ct. at 2129. The Supreme Court noted the “universal[]
agree[ment]” that materiality is an “objective” inquiry involving the significance
of an omitted or misrepresented fact to a reasonable investor. Id. at 445, 96 S. Ct.
at 2130. In TSC Industries, the Supreme Court adopted this standard for
materiality in a proxy solicitation: “An omitted fact is material if there is a
substantial likelihood that a reasonable shareholder would consider it important in
deciding how to vote.” Id. at 449, 96 S. Ct. at 2132. In other words, a
misstatement or omission is material if there is a “substantial likelihood that the
disclosure of the omitted fact would have been viewed by the reasonable investor
as having significantly altered the ‘total mix’ of information made available.” Id.;
see also SEC v. Ginsburg, 362 F.3d 1292, 1302 (11th Cir. 2004) (“Materiality is
proved by showing a substantial likelihood that the disclosure of the omitted fact
24
would have been viewed by the reasonable investor as having significantly altered
the ‘total mix’ of information made available.” (quotation marks omitted)); Merch.
Capital, 483 F.3d at 766 (applying “reasonable man” standard).
In its next major materiality decision, Basic Inc. v. Levinson in 1988, the
Supreme Court expressly applied the TSC Industries materiality test to a fraud
case under § 10(b) of the Exchange Act and Rule 10b-5. 485 U.S. at 231–32, 108
S. Ct. at 983 (stating that “to fulfill the materiality requirement there must be a
substantial likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered the ‘total mix’ of
information made available” (quotation marks omitted)). The plaintiffs in Basic
were former shareholders who sold their shares after the defendant company
issued public statements denying preliminary merger negotiations, even though the
defendant was in merger negotiations with a larger company. Id. at 227–28, 108
S. Ct. at 981. The defendant company in Basic proposed a bright-line rule for
determining the materiality of merger negotiations—“merger discussions do not
become material until ‘agreement-in-principle’ as to the price and structure of the
transaction has been reached between the would-be merger partners.” Id. at 233,
108 S. Ct. at 984.
In Basic, the Supreme Court acknowledged that considering merger
25
negotiations “material” only after an agreement in principle was reached would be
an easy materiality test to apply. Id. at 236, 108 S. Ct. at 986. However, “[a]ny
approach that designates a single fact or occurrence as always determinative of an
inherently fact-specific finding such as materiality, must necessarily be
overinclusive or underinclusive.” Id. (emphasis added). Noting that the
materiality test “requires delicate assessments of the inferences a ‘reasonable
shareholder’ would draw from a given set of facts and the significance of those
inferences to him,” the Supreme Court rejected the “agreement-in-principle” test
as underinclusive. Id.; see also Ginsburg, 362 F.3d at 1302 (noting that materiality
“requires delicate assessments of the inferences a reasonable [investor] would
draw from a given set of facts” and that “these assessments are peculiarly ones for
the trier of fact” (quoting TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133)). The
Supreme Court found “no valid justification for artificially excluding from the
definition of materiality information concerning merger discussions, which would
otherwise be considered significant to the trading decision of a reasonable
investor, merely because agreement-in-principle as to price and structure has not
yet been reached by the parties or their representatives.” Basic, 485 U.S. at 236,
108 S. Ct. at 986 (emphasis added).
Rather, Basic concluded that “materiality depends on the significance the
26
reasonable investor would place on the withheld or misrepresented information.”
Id. at 240, 108 S. Ct. at 988. The role of the materiality inquiry is “to filter out
essentially useless information that a reasonable investor would not consider
significant, even as part of a larger ‘mix’ of factors to consider in making his
investment decision.” Id. at 234, 108 S. Ct. at 985 (emphasis added). Thus,
“[w]hether merger discussions in any particular case are material . . . depends on
the facts.” Id. at 239, 108 S. Ct. at 987.
The Supreme Court’s recent application of the materiality test in Matrixx
Initiatives, Inc. v. Siracusano is also instructive as to what number of adverse
events it takes to make certain information “significant” to the reasonable investor.
131 S. Ct. 1309 (2011). There the plaintiff investors sued Matrixx, a
pharmaceutical company, for failing to disclose reports of adverse events caused
by Matrixx’s Zicam cold-remedy product, in violation of § 10(b) of the Exchange
Act and Rule 10b-5. The plaintiffs alleged that Matrixx knew of reports from
several doctors that their patients lost their senses of smell after using Zicam.13
13
Although Matrixx was aware of these doctors’ reports, Matrixx relied on its own
clinical trials and issued a press release stating that (1) Zicam products were manufactured and
marketed in compliance with FDA guidelines, (2) “Matrixx believes statements alleging that
intranasal Zicam products caused anosmia (loss of smell) are completely unfounded and
misleading,” and (3) in two double-blind, placebo-controlled, randomized clinical trials, there
were no reports of anosmia and “no statistically significant difference between the adverse event
rates for the treated and placebo subsets.” Matrixx, 131 S. Ct. at 1316.
27
Yet, Matrixx issued positive earnings expectations and failed to disclose that it
already was defending product-liability lawsuits involving Zicam.14
Matrixx’s defense was that the plaintiff investors failed to allege a
“statistically significant correlation between the use of Zicam and [loss of smell]
so as to make failure to publicly disclose complaints and [the doctors’ reports] a
material omission.” Id. at 1317. Rejecting this argument, the Supreme Court noted
that—like the defendant company in Basic—Matrixx was proposing a “bright-line
rule that reports of adverse events associated with a pharmaceutical company’s
products cannot be material absent a sufficient number of such reports to establish
a statistically significant risk that the product is in fact causing the events.” Id. at
1318–19 (footnote omitted). But this proposed rule would “artificially exclude
information that would otherwise be considered significant to the trading decision
of a reasonable investor.” Id. at 1319 (alteration and quotation marks omitted).
The Supreme Court reasoned that statistically significant data are not always
available and that medical researchers and the FDA routinely rely on other
14
In October 2003, Matrixx reported that Zicam was “poised for growth in the upcoming
cough and cold season” and predicted a 50% revenue increase and earnings per share of between
25 to 30 cents. Matrixx, 131 S. Ct. at 1315. In its 10-Q filed with the SEC in November 2003,
Matrixx warned that product-liability claims, “whether or not proven to be valid,” could have a
“material adverse effect” on its product branding and goodwill. Id. Matrixx did not disclose that
two plaintiffs had sued, alleging Zicam caused their loss of smell. Then, in January 2004,
Matrixx raised its revenue growth prediction to 80% and its earnings-per-share estimate to 33 to
38 cents. Id.
28
evidence to establish an inference of causation. “Given that medical professionals
and regulators act on the basis of evidence of causation that is not statistically
significant, it stands to reason that in certain cases reasonable investors would as
well.” Id. at 1321.15
B. The “Total Mix” of Information in an SEC Enforcement Action
We now apply this materiality test to the facts of this SEC enforcement
action. To do so, however, we must answer the threshold question of whether, in
an SEC enforcement action, a misstatement or omission by an individual broker to
an individual investor may be included in the analysis of the “total mix” of
information available to the hypothetical reasonable investor. For several reasons,
we conclude that the brokers’ alleged misstatements are included in the materiality
inquiry in an SEC enforcement action.
Morgan Keegan’s principal argument on appeal is that an SEC enforcement
action is designed to protect the public as a whole, and therefore the SEC must
15
Applying the Basic “total mix” standard, the Supreme Court in Matrixx concluded that,
at the motion to dismiss stage, materiality was established under these facts alleged in the
complaint: (1) Matrixx received information from medical experts revealing a plausible
connection between Zicam and the loss of smell, (2) consumers would likely have viewed the
risk of losing the sense of smell as outweighing the benefit of using Zicam to alleviate cold
symptoms, and (3) Zicam accounted for 70% of Matrixx’s sales. The Supreme Court concluded
that these facts suggested “a significant risk to the commercial viability of Matrixx’s leading
product” and that a reasonable investor would view information about this risk to the company’s
leading product as “significantly alter[ing] the total mix of information made available.” Matrixx,
131 S. Ct. at 1323 (quotation marks omitted).
29
demonstrate that Morgan Keegan misled the public as a whole and not just a small
subset of customers. Morgan Keegan argues that the “materiality” of a
misrepresentation in an SEC enforcement action is evaluated in the context of only
disclosures to the public as a whole and without any consideration of a broker’s
communications to a particular investor.16 This argument fails because the
Supreme Court’s materiality standard analyzes the “total mix” of information
available to a hypothetical reasonable investor, not just to the public at large. See
Matrixx, 131 S. Ct. at 1318 (stating the test for materiality is whether there is “a
substantial likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered the ‘total mix’ of
information made available” (emphasis added) (quotations marks omitted)); see
16
Citing Dupuy v. Dupuy, 551 F.2d 1005, 1015 (5th Cir. 1977), Morgan Keegan argues
that “materiality in SEC enforcement actions is appropriately evaluated in the context of
disclosures made ‘to the public, not to any particular investor.’” Morgan Keegan cites Dupuy
wholly out of context. First, the issue in Dupuy was whether the private plaintiff acted with due
diligence, not whether the defendant’s misrepresentations and omissions were material. Second,
Dupuy does not purport to limit SEC enforcement actions in any way. Rather, the Court was
explaining that the subjective knowledge or diligence of any particular investor is not relevant to
an SEC enforcement action, which focuses on whether a defendant violated the securities laws,
not whether any particular investor was harmed.
If anything, Dupuy bolsters our conclusion that the brokers’ statements must be included
in the materiality inquiry by stating that the “standard of conduct for defendants logically should
be the same whether the SEC or a private litigant enforces the duty” imposed by the securities
laws. Id. Because the materiality test determines whether a defendant’s conduct violates the
securities laws, the materiality test “logically should be the same whether the SEC or a private
litigant enforces the duty.” See id. The materiality test will be the same only if the “total mix” of
information is the same in an SEC enforcement action as it is in a private enforcement action.
30
also Basic, 485 U.S. at 236, 108 S. Ct. at 986 (stating the materiality analysis
“requires delicate assessments of the inferences a ‘reasonable shareholder’ would
draw from a given set of facts and the significance of those inferences to him”
(emphasis added)); Merch. Capital, 483 F.3d at 768–71 (applying “reasonable
man” standard). In other words, the materiality test requires the court to consider
all the information available to the hypothetical reasonable investor, which
necessarily includes private communications. See Aaron v. SEC, 446 U.S. 680,
682–83, 100 S. Ct. 1945, 1948–49 (1980) (considering, in SEC enforcement
action against managerial employee of broker–dealer, misleading statements by
two individual brokers to prospective investors). By failing to consider the
brokers’ alleged oral misrepresentations, Morgan Keegan’s analysis deprives the
publicly available written disclosures of their complete context and deprives its
brokers’ oral misrepresentations of any role in SEC enforcement actions.
The problem for Morgan Keegan is the SEC enjoys the authority to seek
relief for any violation of the securities laws, no matter how small or
inconsequential.17 And it is well-settled that a violation of § 10(b) of the
17
Both the Securities Act and the Exchange Act permit the SEC to bring a civil action
either to enjoin or to impose a civil penalty for any violation of the federal securities laws. See
15 U.S.C. § 77t(b) (“Whenever it shall appear to the Commission that any person is engaged or
about to engage in any acts or practices which constitute or will constitute a violation of the
[Securities Act], or of any rule or regulation prescribed under authority thereof, the Commission
may, in its discretion, bring an action in any district court of the United States . . . to enjoin such
31
Exchange Act requires only a (1) material misrepresentation or materially
misleading omission, (2) in connection with the purchase or sale of securities, (3)
made with scienter. Merch. Capital, 483 F.3d at 766. The SEC thus may seek a
civil penalty against any defendant who has made a single misstatement or
omission, if material and made with scienter and in connection with the purchase
or sale of securities.18 Morgan Keegan cannot show that its oral misstatements
were immaterial merely by showing that those statements were not made publicly.
Moreover, a rule excluding all individual broker–investor communications
from the materiality inquiry is underinclusive, just like the “agreement-in-
principle” rule the Supreme Court rejected in Basic and the “statistical
significance” rule it rejected in Matrixx. See Basic, 485 U.S. at 236, 108 S. Ct. at
986; Matrixx, 131 S. Ct. at 1319. That is, the hypothetical reasonable investor
looking for a short-term, liquid investment is likely to consider his broker’s
statements about the relative merit (and lack of risk) of certain investments in
acts or practices . . . .”); 15 U.S.C. § 78u(d)(1) (“Whenever it shall appear to the Commission
that any person is engaged or is about to engage in acts or practices constituting a violation of any
provision of [the Exchange Act], the rules or regulations thereunder, [or] the rules of a national
securities exchange or registered securities association of which such person is a member or a
person associated with a member . . . it may in its discretion bring an action in the proper district
court of the United States . . . to enjoin such acts or practices . . . .”); see also 15 U.S.C.
§§ 77t(d), 78u(d)(3) (authorizing the SEC to seek a monetary civil penalty against any person
who “has violated any provision” of the Securities Act or the Exchange Act).
18
Other limitations—such as money or time—may counsel against the SEC’s prosecuting
such actions. But the statutes grant the SEC this broad authority.
32
deciding among different investment options.19 And the fact-finder could easily
conclude that a reasonable investor would find liquidity risk an important factor in
determining whether to invest in ARS, especially given Morgan Keegan’s
advertising ARS as a highly liquid alternative to money market funds.
Further, there is no statutory or precedential support for Morgan Keegan’s
argument that some threshold number of investors must be misled before finding
its brokers’ misrepresentations “material” in an SEC enforcement action. The
SEC is not required to prove an institution-wide effort by brokers to mislead
customers in order to bring or to prevail in an SEC enforcement action. The extent
of the brokers’ misrepresentations may ultimately affect the size of the remedy,
such as fines or disgorgement imposed, but there is no minimum number of
misrepresentations required for a materiality finding in an SEC enforcement
action. Simply put, a numerical threshold for materiality runs counter to the
securities acts’ broad grant of authority to the SEC to bring an action for any
violation of the securities laws.
In this case, the SEC presented evidence that four Morgan Keegan brokers
19
Because this is an SEC enforcement action, we need not determine whether the
individual investor’s reliance on his broker’s statements is reasonable.
33
misrepresented the liquidity risk of ARS to customers.20 Under principles of
respondeat superior, Morgan Keegan is liable for the acts of these brokers so long
as they acted within the scope of their authority. See Paul F. Newton & Co. v.
Tex. Commerce Bank, 630 F.2d 1111, 1118 (5th Cir. 1980) (concluding that
“common law agency principles, including the doctrine of respondeat superior,
remain viable in actions” under the Exchange Act).21 Morgan Keegan concedes
that these four brokers were acting within the scope of their authority when they
made the alleged misrepresentations. Thus, the SEC, at a minimum, may establish
a securities violation with respect to each of those four investors irrespective of
“an institutional effort to mislead” customers and irrespective of whether any
additional brokers attempted to mislead Morgan Keegan’s other customers. In this
SEC enforcement action, we discern no reason to exclude Morgan Keegan’s
brokers’ misrepresentations from the materiality analysis of the “total mix” of
20
The SEC argues that the district court abused its discretion by refusing to consider the
SEC’s evidence of other alleged misrepresentations, including written complaints by 14 other
customers that their Morgan Keegan brokers had misrepresented the liquidity risk of ARS.
Because we conclude that the SEC met its burden to show “materiality” with respect to the
misstatements to the four investors, we need not address whether the district court erred in
excluding this evidence as hearsay during the summary judgment stage. We recognize that the
SEC argues that the district court may consider hearsay when ruling on summary judgment if the
statement could be reduced to admissible evidence at trial. The SEC will have an opportunity to
do just that as to these 14 customers on remand during the trial.
21
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
34
information available to the reasonable investor.
C. The Materiality of Oral Misrepresentations Conflicting With Morgan
Keegan’s Written Disclosures Is an Issue for the Trier of Fact
Having decided that these alleged oral misrepresentations by the four
Morgan Keegan brokers must be considered for purposes of materiality, we next
determine whether Morgan Keegan’s written disclosures nonetheless rendered its
brokers’ oral misrepresentations immaterial as a matter of law. The way
information is disclosed can be as important as its content. Thus, in evaluating the
effect of Morgan Keegan’s written disclosures, we must consider not only the
content of the written disclosures but also the way in which the disclosures were
made. After record review, we conclude that, even if a brokerage company’s
written disclosures might render its individual brokers’ oral misstatements
immaterial in some cases, Morgan Keegan’s manner of distribution of its written
disclosures in this particular case was insufficient to warrant summary judgment
for Morgan Keegan.
In this regard, the main securities cases the parties cite from our circuit
addressing the interplay of written disclosures and oral misrepresentations are
Bruschi v. Brown, 876 F.2d 1526 (11th Cir. 1989), and First Union Discount
Brokerage Servs., Inc. v. Milos, 997 F.2d 835 (11th Cir. 1993). Because these two
cases involve justifiable reliance rather than materiality, they are not on point. Yet
35
these cases show that the effect of oral misrepresentations conflicting with written
disclosures—whether measured by a private plaintiff’s reliance or by the
significance to a hypothetical reasonable investor—depends heavily on the facts of
each case.
In Bruschi, the defendant–broker gave the written disclosures directly to the
plaintiff–investor, but we concluded they did not warrant judgment as a matter of
law for the defendant in the plaintiff’s private action alleging oral
misrepresentations. The Bruschi plaintiff, an unsophisticated investor, hired the
defendant Brown as her broker and investment advisor. Id. at 1527. Employed at
Dean Witter Reynolds, Inc., defendant Brown recommended “the Elmco
investment,” which he described in positive terms, and stated it would provide the
plaintiff with “significant tax deductions.” Id. Brown did not disclose that the
Elmco investment was a complex and risky venture involving unregistered
securities and was neither endorsed nor offered by Dean Witter, or that Elmco was
paying Brown a commission for any securities he sold. Brown visited the
plaintiff’s home to close the transaction and gave her 160 pages of documents
describing the merits and risks of the Elmco investment. Id. at 1527–28. After
Brown assured that her signature “was a mere formality,” the plaintiff signed the
documents without reading them. Id. at 1528.
36
Defendant Brown argued that the extensive disclosure documents conflicted
with the alleged oral misrepresentations and that, as a matter of law, “an investor
is not justified in relying on oral misrepresentations that conflict with
contemporaneous written representations.” Id. at 1529. This Court noted that it
had never held that, “regardless of the circumstances, an investor is always
precluded from recovering under Rule 10b-5 if the misrepresentations upon which
the investor relied were oral and conflict in some way with contemporaneous
written representations available to the investor.” Id.22
In Bruschi, this Court then listed several factors for determining whether an
investor’s reliance is justified.23 This Court concluded that, “[w]hen all factors are
considered, it cannot be held as a matter of law that [plaintiff] Bruschi’s reliance
on the alleged oral misrepresentations was not justified.” Id. at 1530. Even in
22
In Bruschi, although the oral “misrepresentations conflicted with statements in the
disclosure documents that the economic and tax risks were substantial,” the Court also noted that
“[t]he disclosure documents . . . were consistent with Brown’s alleged oral misrepresentations
that (1) there were no material relationships between himself and Elmco and (2) that he had not
and would not be receiving any compensation from Elmco.” Bruschi, 876 F.2d at 1530. “Thus,
even if Bruschi had read the disclosure documents, she would have received conflicting signals
as to the reliability of the alleged oral misrepresentations rather than the obvious indication of
unreliability argued by Brown.”
23
The Bruschi court listed these factors: “(1) the sophistication and expertise of the
plaintiff in financial and security matters; (2) the existence of long standing business or personal
relationships between the plaintiff and the defendant; (3) the plaintiff’s access to relevant
information; (4) the existence of a fiduciary relationship owed by the defendant to the plaintiff,
(5) concealment of fraud by the defendant; (6) whether the plaintiff initiated the stock transaction
or sought to expedite the transaction; and (8) the generality or specificity of the
misrepresentations.” Bruschi v. Brown, 876 F.2d 1526, 1529 (11th Cir. 1989).
37
Bruschi, where the plaintiff bore the additional burden to show justifiable reliance,
this Court did not allow the written disclosures to trump oral misrepresentations as
a matter of law.24
Subsequently, in First Union v. Milos, this Court distinguished Bruschi in
holding that sophisticated investors could not have justifiably relied on a broker’s
oral representations that “predated and conflicted with the clear language” of two
contracts directly given to and signed by the investors. 997 F.2d at 846. The First
Union Court stated that “[i]n Bruschi, we explained that circumstances may
warrant departure from the usual presumption that reliance on an oral
representation that a written representation contradicts is not justified.” Id. at 846
n.22. This Court compared the factual circumstances in Bruschi and First Union
and concluded that the facts did not warrant departure in First Union: Factually,
24
Morgan Keegan also relies on Acme Propane, Inc. v. Tenexco, Inc., 844 F.2d 1317 (7th
Cir. 1988), but that private action involved written disclosures that were given directly to the
plaintiff investors. Acme Propane does include a curious footnote stating that, although the
precedent it cited was interpreting the reliance element of a securities fraud claim, “‘reliance’ in
securities law is just a code word for causation, which in turn usually means a material
misstatement.” Id. at 1322 n.*. However, this is an SEC enforcement action, which requires no
showing of justifiable reliance.
Moreover, the Supreme Court’s cases establish an objective, reasonable-investor standard
for determining “materiality.” Reliance, in contrast, focuses on the individual investor–plaintiff.
Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 159, 128 S. Ct. 761, 769
(2008) (stating the reliance element of a private action under Rule 10b-5 “ensures that . . . the
requisite causal connection between a defendant’s misrepresentation and a plaintiff’s injury
exists as a predicate for liability” (quotation marks omitted)). To the extent the Acme Propane
footnote says that justifiable reliance and materiality are the same inquiry, we find Acme Propane
unpersuasive and rely instead on the Supreme Court’s materiality cases outlined above.
38
Bruschi involved (1) “an offering memorandum”; (2) an investor who was
“unsophisticated and inexperienced in financial matters” and told not to read the
disclosure documents; (3) a security purchase “initiated” by the defendant–broker;
and (4) “some statements in the disclosure documents [that] confirmed some of the
alleged oral misrepresentations.” Id. (quotation marks omitted). By comparison,
in First Union: (1) the disclosures were in “two written contracts” given directly to
a “sophisticated investor”; (2) the investors “had full control over their
investments”; (3) “the written agreements violently contradicted the oral
representations”; and (4) First Union did not tell the investors not to read the
written agreements. Id.
While Bruschi and First Union involve “justifiable reliance,” they
nonetheless show that, in securities cases, whether written disclosures should
trump oral misrepresentations is highly fact-specific and therefore is not amenable
to bright-line rules. Cf. Matrixx, 131 S. Ct. at 1318–19; Basic, 485 U.S. at 236,
108 S. Ct. at 986; TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133.
Here, after considering the entire record, we conclude that Morgan
Keegan’s written disclosures do not warrant summary judgment for Morgan
Keegan on the “materiality” issue. The oral misrepresentations at issue here were
made directly to customer–investors who aver they never received or knew about
39
the written disclosures at the time of their purchases. Importantly too, the oral
misstatements must be considered in the factual context of a weak, or non-existent,
distribution of the written disclosures.
For example, although Morgan Keegan produced adequate written
disclosures in the ARS Manual and the ARS Brochure and gave the ARS Manual
directly to customers in 2006, there is no evidence that, during late 2007 and early
2008, Morgan Keegan directly gave customers these written disclosures before or
after customers purchased ARS. At most, the record shows that the ARS Brochure
was available at some of Morgan Keegan’s branch offices, but the ARS Brochure
was given to customers only upon a customer’s request.
The only written documents that were directly given to ARS purchasers
were the trade confirmations. But the trade confirmations say absolutely nothing
about liquidity risk.
The trade confirmations do refer customers to the website for “information
regarding the auction procedures,” but the trade confirmations list only the
Morgan Keegan home page (despite the cease-and-desist order’s explicit
instruction25 that the trade confirmations notify customers that a written
25
At oral argument, Morgan Keegan argued that the SEC should be estopped from arguing
that Morgan Keegan had not met its disclosure requirements because the cease-and-desist order
explicitly states that a broker–dealer could meet its disclosure obligations under the cease-and-
desist order by including a note in the confirmation that the broker–dealer’s “material auction
40
description of Morgan Keegan’s auction practices “is available on a specified
webpage of [Morgan Keegan’s] website”). While the evidence contains a copy of
an archived ARS web page on Morgan Keegan’s website, there is no evidence that
brokers directed customers interested in ARS to the ARS web page.26
We recognize that the back of the trade confirmations state that securities
“involve investment risks, including the loss of principal.” But given Morgan
Keegan’s knowledge of the increasing rate of auction failures in late 2007 and
early 2008, this general cautionary language is insufficient to render its brokers’
oral misrepresentations during that period immaterial as a matter of law. See
Merch. Capital, 483 F.3d at 768 (holding that a defendant’s performance
projections were materially misleading despite general cautionary language
because the defendant failed to disclose past performance information “that would
practices and procedures” is available on a specified web page on the broker–dealer’s website.
We are not persuaded. The cease-and-desist order deals with the distinct violation of failing to
disclose auction practices and procedures, not with misrepresenting or failing to disclose the
liquidity risk of ARS. In other words, the fact that a broker–dealer has adequately disclosed its
ARS auction procedures does not absolve the broker–dealer of liability for its brokers’ materially
misleading statements about the liquidity risk of ARS.
26
At this summary judgment stage, we need not resolve the dispute over how many steps a
customer would need to reach the ARS web page because Morgan Keegan has not presented
evidence that anyone ever visited the ARS web page or that any of its brokers ever directed a
customer to its ARS web page. At oral argument, Morgan Keegan’s attorney mentioned that a
customer could enter “auction” in the search box on its homepage and thereby reach the ARS
web page. We cannot find that in the record either. In any event, Morgan Keegan’s manner of
distributing its written disclosures of ARS liquidity risk in 2008 does not warrant summary
judgment for Morgan Keegan.
41
be useful to a reasonable investor in assessing those [optimistic performance
projections]”).
Moreover, the trade confirmations were provided only after the ARS
purchase and after the alleged oral misrepresentations. And because nothing in the
trade confirmations discloses the liquidity risk of ARS, customers would have no
reason to investigate whether to use the ten-day provision to rescind the
transaction. Accordingly, the ten-day-rescission remedy is insufficient to support
a finding, as a matter of law, that the brokers’ oral misstatements were immaterial.
Despite failing to provide its written disclosures directly to customers,
Morgan Keegan argues that the written disclosures were available to any
“reasonably diligent investor.” But due diligence is a distinct and subjective
element of a private action under Rule 10b-5, unrelated to the objective materiality
test. Thompson v. Smith Barney, Harris Upham & Co., 709 F.2d 1413, 1418 (11th
Cir. 1983) (“‘[D]ue diligence’ [is] a separate element in 10b-5 cases, apart from
questions of materiality, reliance, or defendants’ duties.”). And, because due
diligence focuses on whether “the carelessness of a plaintiff should preclude his
recovery,” it is properly considered only in a private action brought by an investor,
not an SEC enforcement action. See id. at 1418 n.7.
In sum, the materiality inquiry in this SEC enforcement action must account
42
for the oral misrepresentations of Morgan Keegan’s brokers. Because Morgan
Keegan’s written disclosures were not given directly to customers but were
distributed only in the weak or non-effective manner outlined above, we conclude
that the brokers’ misleading statements and failure to disclose the known liquidity
risk of ARS could have “been viewed by the reasonable investor as having
significantly altered the ‘total mix’ of information made available.” See Basic,
485 U.S. at 231–32, 108 S. Ct. at 983 (quotation marks omitted). Indeed, as noted
above, the materiality test requires “delicate assessments of the inferences a
‘reasonable shareholder’ would draw from a given set of facts and the significance
of those inferences to him, and these assessments are peculiarly ones for the trier
of fact.” TSC Indus., 426 U.S. at 450, 96 S. Ct. at 2133.
IV. CONCLUSION
For these reasons, we conclude that the district court erred in granting
summary judgment for Morgan Keegan based on the “materiality” element of the
securities violations charged in this SEC enforcement action. Our holding is
narrow and limited to materiality. We do not address whether the SEC has met
any other element of its claims or whether the SEC will ultimately prevail in this
43
litigation.27 Accordingly, we vacate the district court’s June 28, 2011 order
granting summary judgment to Morgan Keegan and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
27
In ruling on materiality, we have no occasion to address the remedies being sought by
the SEC. Upon remand, both parties should be given the opportunity to develop and litigate the
remedies being sought. If the SEC prevails and shows a securities violation or violations, the
fact-finder then can consider the appropriate size and scope of the remedies.
44 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047375/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-2-2009
Feigenbaum v. Merrill Lynch & Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3573
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3573
LYNNE FEIGENBAUM,
Appellant
v.
MERRILL LYNCH & CO., INC. BASIC LONG TERM
DISABILITY PLAN and its PLAN ADMINISTRATOR;
MERRILL LYNCH & CO., INC. SUPPLEMENTAL LONG
TERM DISABILITY PLAN and its PLAN ADMINISTRATOR;
METROPOLITAN LIFE INSURANCE CO.; PLAN ADMINISTRATORS
of the MERRILL LYNCH RETIREMENT PLAN, HEALTH
INSURANCE PLAN, AND LIFE INSURANCE PLAN;
MERRILL LYNCH & CO., INC; CORPORATIONS 1-30, fictitious defendants
Amended per Clerk's Order dated 10/1/07
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 06-cv-01075)
District Judge: The Honorable Faith S. Hochberg
Argued: January 15, 2009
Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges
(Opinion Filed: February 2, 2009)
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Kevin E. Barber, Esq. (Argued)
Niedweske Barber
98 Washington Street
Morristown, NJ 07962
Counsel for Appellant
Randi F. Knepper, Esq. (Argued)
McElroy, Deutsch, Mulvaney & Carpenter
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102-0000
Counsel for Appellees
OPINION
BARRY, Circuit Judge
Appellant Lynne Feigenbaum, a former employee of appellee Merrill Lynch &
Co., Inc., participated in Merrill Lynch’s ERISA-based Basic and Supplemental Long
Term Disability Plans. At times relevant to this appeal, Merrill Lynch, as the plan
administrator, delegated responsibility for claims administration to appellee Metropolitan
Life Insurance Co. Feigenbaum applied for and received benefits under both plans in
2001. After an independent physician review in December 2003, MetLife terminated her
benefits, finding, among other things, that she had failed to submit documentation of an
2
impairment that would prevent her from her work as a financial analyst. After
Feigenbaum’s appeal of this decision was denied, she filed suit under 29 U.S.C. §
1132(a)(1)(B). Following limited discovery and extensive argument on the cross-motions
for summary judgment, by Opinion and Order dated August 2, 2007, the District Court
granted defendants’ motion.
We, too, have heard extensive argument and have considered the parties’ written
submissions, including those addressed to the fairly recent decision of the Supreme Court
in Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), with its
“combination-of-factors method of review.” Suffice it to say that the evidence that
Feigenbaum’s reported vertigo has a physiological basis supporting the presence of a
significant balance disorder preventing full-time work was sparse. Moreover,
Feigenbaum failed to submit any additional medical documentation in support of her
appeal from the termination of benefits. We conclude, therefore, that the decision to
terminate those benefits was not so close that any alleged procedural errors unaddressed
by the District Court might tip the scales in favor of reversal or were other than harmless.
As the Eighth Circuit concluded in a similar case which hewed closely to Glenn, “there is
not a sufficiently close balance for the conflict of interest to act as a tiebreaker in favor of
finding that [MetLife] abused its discretion.” Wakkinen v. UNUM Life Ins. Co. of Am.,
531 F.3d 575, 582 (8th Cir. 2008).
We will affirm the judgment of the District Court.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047380/ | Case: 14-13556 Date Filed: 11/26/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13556
Non-Argument Calendar
________________________
D.C. Docket Nos. 5:14-cv-00343-TJC; 6:13-bk-14410-KSJ
In Re: CELIA ELLA CORRAD,
Debtor.
__________________________________________________________________
BANK OF AMERICA, N.A.,
Plaintiff-Appellant,
versus
CELIA ELLA CORRAD,
Defendants-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 26, 2014)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
Case: 14-13556 Date Filed: 11/26/2014 Page: 2 of 4
PER CURIAM:
This appeal concerns an order of the bankruptcy court permitting a debtor to
“strip off” an “underwater” second mortgage under § 506(d) of the Bankruptcy
Code.
I. BACKGROUND
Appellee Celia E. Corrad is a Chapter 7 debtor. She owns real property in
Yalaha, Florida that is encumbered by two mortgages. The balance of the first lien
exceeds the fair market value of the property, rendering the second lien, which
appellant Bank of America, N.A. holds, completely “underwater.”
On November 26, 2013, Corrad moved the bankruptcy court to declare Bank
of America’s interest in her property to be unsecured and void under § 506(d) of
the Bankruptcy Code. 11 U.S.C. § 506(d). Relying on In re McNeal, 735 F.3d
1263 (11th Cir. 2012), the bankruptcy court granted Corrad’s motion on May 12,
2014. Bank of America appealed that order to the district court, where it moved
for a summary affirmance. The district court granted Bank of America’s motion
on July 21, 2014, and this appeal followed.
II. STANDARD OF REVIEW
When the district court affirms an order of the bankruptcy court, we review
the bankruptcy court’s decision independently of the district court. In re TOUSA,
2
Case: 14-13556 Date Filed: 11/26/2014 Page: 3 of 4
Inc., 680 F.3d 1298, 1310 (11th Cir. 2012). We review de novo the bankruptcy
court’s legal conclusions. Id.
III. ANALYSIS
Section 506(d) of the Bankruptcy Code provides, in pertinent part, that “[t]o
the extent that a lien secures a claim against the debtor that is not an allowed
secured claim, such lien is void.” 11 U.S.C. § 506(d). In Folendore v. United
States Small Business Administration, we interpreted the above statutory language
to hold that even an allowed claim can be deemed voidable if it is wholly
unsecured. 862 F.2d 1537, 1538-40 (11th Cir. 1989). Thus, under Folendore, a
debtor can move a bankruptcy court to strip off an underwater lien. Id.
Three years after the Folendore decision, the Supreme Court issued its
opinion in Dewsnup v. Timm, 502 U.S. 410 (1992), which Bank of America argues
“squarely repudiated Folendore’s interpretation of section 506(d).” Bank of
America claims that “Folendore [] could not have survived Dewsnup.”
Unfortunately for Bank of America, we considered and rejected this same
argument in our 2012 McNeal decision. 735 F.3d at 1265-66. There, although we
acknowledged Dewsnup’s seeming disavowal of Folendore’s “plain language
analysis” of § 506(d), we declined to deviate from that opinion because Dewsnup
was “not ‘clearly on point,’” as it “disallowed only a ‘strip down’ of a partially
3
Case: 14-13556 Date Filed: 11/26/2014 Page: 4 of 4
secured mortgage lien and did not address a ‘strip off’ of a wholly unsecured lien.”
Id. at 1265. Consequently, McNeal held that Folendore remained the controlling
precedent within this Circuit. Id.
Under our prior precedent rule, we are bound by this Court’s prior decisions
“unless and until [they are] overruled by this court en banc or by the Supreme
Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). Bank of
America argues that Folendore was wrongly decided, but concedes that it and
McNeal remain binding precedent and control this case. Accordingly, the
bankruptcy court did not err by permitting Corrad to strip off Bank of America’s
underwater lien, and the decision of the district court is therefore affirmed.
AFFIRMED.
4 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892639/ | NO. 07-04-0228-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 10, 2005
______________________________
KEITH RUSSELL MAY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 14,187-B; HON. JOHN BOARD, PRESIDING
_______________________________
Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1
This appeal presents the question whether, during a hearing on a motion to revoke
probation and adjudicate guilt, the trial court reversibly erred in allowing certain testimony
concerning statements made by appellant Keith Russell May during an earlier plea bargain
conference which resulted in appellant being granted probation and deferred guilt
adjudication. We hold the trial court did not err and affirm its judgment adjudicating guilt
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
and sentencing appellant to ten years confinement in the Institutional Division of the
Department of Criminal Justice.
The record underlying this appeal reveals that appellant had originally pled guilty to
an indictment charging him with sexual assault (originally aggravated sexual assault) and,
as a result of the plea bargain, was granted deferred adjudication for a period of ten years
and a fine of $500. Subsequent to that grant, the State filed a motion to adjudicate guilt,
alleging appellant had consumed controlled substances during his probationary period.
The nature of appellant’s challenge requires us to review the factual background of
this proceeding in some detail. On November 25, 2003, a hearing was held on the motion
to revoke probation and to adjudicate guilt. At that hearing, appellant entered a non-
negotiated plea of true to the allegations. The trial court accepted the plea and proceeded
to hear evidence that might be tendered to determine the punishment to be assessed. At
that time, the State elected not to present evidence.
Appellant called Jim Coventry to testify on his behalf. Coventry, a licensed
psychotherapist in Amarillo, had been seeing appellant for about a year and during that
period had conducted approximately 24 one-hour sessions with appellant. Coventry
described appellant as a depressed individual with “fairly longstanding” chemical
dependency issues. Coventry said he was not particularly surprised that appellant had
violated the terms of his probation in the manner he did because after appellant had
graduated from college, he lost what little support system he had. Inasmuch as such a
support system was essential for appellant to maintain sobriety and deal with his mental
health issues, the absence of such a support system concerned Coventry. Even so,
Coventry believed that appellant’s two stints at an out-of-state rehabilitation center after the
2
motion to adjudicate was filed had helped his mental state and strengthened appellant’s
commitment to move on from drug use. Although the witness admitted appellant was at
risk to use drugs, he did not see appellant as a specific risk to again commit the sort of
assault that gave rise to his prosecution. Coventry opined that the best thing for appellant
if his probation was continued was to return to his hometown of Abilene where he would
have the support of his family.
On cross-examination, Coventry admitted that he was aware of certain
“representations” made by appellant during the plea bargain conference. He understood
that these “representations” concerned the fact that the charged offense occurred while
appellant was high on drugs. Coventry acknowledged that appellant continued to use
illegal drugs after he was placed on the unadjudicated probation but, even so, he opined
that the risk that appellant would again commit a sexual assault was a “very remote
possibility.” In response to a question from the court, and in explanation of his opinion that
appellant was not a serious risk to again commit a sexual assault on a minor, Coventry said
that he did not believe that appellant was aware that the 14-year-old minor involved in the
sexual assault was a minor, nor did appellant seem to be placing himself in a position
where he could seek out children.
After the trial court asked its questions, the State continued its cross-examination
and asked if Coventry was aware that while appellant was on the unadjudicated probation,
he had used the internet to set up a sexual tryst with more than one adult partner at a time.
Coventry responded that he was not aware of that fact and, if it was true, it would cause
him to have some concern about appellant’s risk level.
3
Appellant then took the stand. He recounted his attendance at two rehabilitation
clinics in California subsequent to the filing of the motions to adjudicate guilt. He also
acknowledged that his use of the internet mimicked his addictive behavior. On cross-
examination, appellant admitted he had arranged a tryst with other adult males over the
internet. He also testified that during the plea bargain conference, he told Gloria Diehl, the
mother of the minor child involved in the prosecution, that he had sexually assaulted her
son because he was depressed and using drugs. He also admitted that he had told her
during the meeting that he was “past that” and had moved on with his life.
At the conclusion of his testimony, appellant rested and both sides closed. After a
recess, with the observation that he thought it would be helpful for him to hear testimony
from the treatment provider or providers in the case, the trial judge announced that he was
continuing the hearing until December 22, 2003, at which time he would allow both sides
to present additional evidence. The hearing was later reset for January 9, 2004.
Relevant to the question before us is Diehl’s testimony at the January 9 hearing. She
was asked by the prosecutor if she recalled the reason for the commission of the offense
given by appellant at the plea bargain negotiation meeting. Present at that meeting were
the attorney for appellant, the prosecutor, appellant, and Diehl. Before Diehl could answer
the question, appellant timely objected. The gist of his objection was: “But for the context
in which we met with the mother of the complainant and the State’s attorney, these
statements would never have been made.” Therefore, appellant reasons, they were
inadmissible under Texas Rule of Evidence 410. After the objection was overruled, the
witness testified that appellant told her that at the time of the incident, he was away from
home in college, was depressed, and was “in a really bad state in his life.” She also said
4
that appellant told her that he had been doing drugs, and “wasn’t real sure about what his
mental state was.” She also recalled that appellant told her at this meeting that “he learned
from his mistake . . . that he no longer used the internet . . . that he was getting alcohol and
drug counseling and getting help for what he had done.” She said that the purpose of the
plea bargain conference was to persuade her and the prosecutor to recommend
unadjudicated guilt and probation, a sentence appellant ultimately received.
At the conclusion of the January 9 hearing, the trial judge found the evidence
sufficient to establish that appellant had violated the conditions of his probation, adjudicated
him guilty of the offense of sexual assault, and assessed his punishment at ten years penal
confinement. Appellant filed a Motion in Arrest of Judgment in which he again argued that
the trial judge erred in admitting Diehl’s testimony and obviously considered it. Because,
he argued, the statements were per se prejudicial, the sentence was invalid and constituted
a miscarriage of justice. The motion was overruled by operation of law. Hence, this
appeal.
As we noted, appellant bottoms his appeal upon an asserted violation of Texas Rule
of Evidence 410. In material part, that rule renders inadmissible “any statement made [by
the defendant] in the course of plea discussions with an attorney for the prosecuting
attorney. . . that do not result in a plea of guilty or a plea of nolo contendere or that results
in a plea, later withdrawn, of guilty or nolo contendere.” Tex. R. Evid. 410. Appellant
correctly argues that the rule contemplates that fairness dictates the prosecution be
permitted to offer other statements made by a defendant in order to provide context to
statements by the defendant previously admitted into evidence. The gist of appellant’s
5
argument is that this exception does not apply to this case and the testimony in question
was per se inadmissible under the rule.
In support of his claim that the trial court reversibly erred, appellant primarily relies
upon the decisions in Neugebauer v. State, 974 S.W.2d 374 (Tex. App.–Amarillo 1998, pet.
ref’d) and Abdel-Sater v. State, 852 S.W.2d 671 (Tex. App.–Houston [14th Dist.] 1993, pet.
ref’d). However, that reliance is misplaced. In Neugebauer, the conversation about which
the State attempted to cross-examine the appellant was about whether his attorneys had
told him that he was probably going to receive probation from the jury. Neugebauer v.
State, 974 S.W.2d at 376-77. We held the State’s attempt was improper because it
concerned a privileged communication between attorney and client. Id. Moreover, if
considered as referring to a conversation that took place during plea bargain negotiations,
the proper predicate under Rule 410 had not been met because the State had not shown
the statement occurred in the course of a successful plea negotiation and that in fairness
it should be allowed to offer other statements made in the course of that negotiation. Id.
In Abdel-Sater, the statement which appellant attempted to introduce occurred after
the plea agreement was made, and the court held that because “the statement was not part
of the plea discussions, the trial court did not abuse its discretion in not allowing appellant
to disclose the terms of the plea negotiations to the jury.” Abdel-Sater v. State, 852 S.W.2d
at 673.
Suffice it to say, by its clear terms, the Rule 410(4) provision making inadmissible
statements by the defendant in the course of plea discussions only applies in cases in
which those discussions did not result in a plea of guilty, a plea of nolo contendere, or in
6
situations in which one of those pleas is withdrawn. The plea bargain discussions here
were successful and the trial court did not err in admitting the testimony in question.
Accordingly, the judgment of the trial court must be, and is hereby, affirmed.
John T. Boyd
Senior Justice
Do not publish.
7 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047381/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10205
Plaintiff-Appellee, D.C. No.
v. CR-04-00241-JAT
LIONEL MENDEZ, ORDER AND
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
February 16, 2006—San Francisco, California
Filed February 23, 2007
Before: Stephen Reinhardt, Richard A. Paez, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Reinhardt
2083
UNITED STATES v. MENDEZ 2085
COUNSEL
Jon M. Sands & Michael D. Gordon, Federal Public
Defender, Phoenix, Arizona, for the defendant-appellant.
Paul K. Charlton, John Joseph Tuchi & Bill C. Solomon,
United States Attorney, Phoenix, Arizona, for the plaintiff-
appellee.
ORDER
The majority opinion and dissent, filed October 30, 2006,
are hereby withdrawn. The superseding opinion will be filed
concurrently with this order. Further petitions for rehearing or
rehearing en banc may be filed.
OPINION
REINHARDT, Circuit Judge:
Lionel Mendez was pulled over by two police officers for
failure to display a visible license plate or registration tag. He
2086 UNITED STATES v. MENDEZ
was asked to exit the car, patted down for weapons and told
to sit on the curb behind the vehicle while a records check
was conducted. In response to questioning about matters unre-
lated to the purpose of the traffic stop, Mendez told the offi-
cers that he was a felon and that there was a gun in the
vehicle, at which point they arrested him, searched the car and
found the gun. After the district court denied his motion to
suppress the evidence, Mendez entered a conditional plea of
guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). The only issue on appeal is whether
the district court erred when it denied his motion to suppress.
We conclude that it did not.
I. FACTUAL AND PROCEDURAL HISTORY1
At approximately 9:18 p.m. on December 21, 2003, two
Phoenix gang enforcement officers pulled over a car driven
by Mendez because it did not appear to have a license plate
or temporary registration tag. Both officers testified that the
sole purpose of the stop was “no registration.” The officers,
Detectives Jaensson and Bracke, approached the car. Det.
Jaensson told Mendez why they had stopped him and asked
for “his identification or license.” Mendez presented a Cali-
fornia identification card. Det. Jaensson then instructed him to
get out of the vehicle and interlock his hands behind his head.
He proceeded to pat him down for weapons, during which
time he noticed a tattoo on Mendez’s left hand. The pat-down
produced no weapons. Det. Jaensson then instructed Mendez
to sit on the curb behind his car.
Det. Jaensson stayed with Mendez at the curb while Det.
Bracke took the identification card to the patrol car to conduct
a records check. While waiting for Det. Bracke to complete
the records check, Det. Jaensson again noticed the tattoo on
1
Our recitation of the facts is based primarily on the testimony adduced
at the suppression hearing. Detectives Jaensson and Bracke testified;
Mendez did not.
UNITED STATES v. MENDEZ 2087
Mendez’s left hand and recognized it as a gang-affiliated
insignia. Prompted by the gang tattoo, he asked Mendez sev-
eral questions, beginning with “Where are you from?”
According to Det. Jaensson, Mendez responded that he was
“from the Latin Kings,” a gang located in Chicago. Det. Jaen-
sson testified that he next asked Mendez about his other tat-
toos. In response to one of Det. Jaensson’s questions, Mendez
said that he had left the Latin Kings “in good standing,” and
had moved to Arizona “to get away from all that, to turn his
life around.”
While Det. Jaensson was questioning Mendez, Det. Bracke
was at the patrol car conducting a records check, using the
car’s Mobile Data Terminal (“MDT”).2 At this time, he
noticed in the rear window of Mendez’s vehicle a temporary
registration plate that had expired eight days earlier on
December 13th.
After completing the records check, which revealed that
Mendez had a valid driver’s license and no outstanding war-
rants, Det. Bracke returned to the curb with the intention of
informing him that the temporary registration plate in his rear
window had expired. While returning, Bracke overheard
Mendez telling Det. Jaensson that he had come to Arizona
“trying to get away from the gang life.” Det. Bracke also
overhead him say that he had spent time in prison in Illinois.
Upon approaching the curb, Det. Bracke asked Mendez why
he had been imprisoned. Mendez replied that he had been
convicted of a weapons violation. Det. Bracke then asked
whether he had any weapons in the car. According to the two
detectives, Mendez became agitated, told them that he was a
good father and was trying to make a good life for himself in
Arizona. He then added that there was a firearm in the driv-
er’s door handle. At this point, the officers arrested him. Det.
Bracke then searched the vehicle and found a loaded, small
2
The MDT is the computer in the patrol car that the officers use to con-
duct records checks.
2088 UNITED STATES v. MENDEZ
caliber, semi-automatic pistol in the driver’s side armrest. The
entire encounter up to the time of the arrest and search took
approximately eight minutes.
Mendez was indicted on charges of violating 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (felon in possession of a firearm).
He moved to suppress the handgun, arguing that the officers
improperly interrogated him about matters unrelated to the
traffic stop and failed to diligently investigate the purpose of
the stop. The district court denied the motion, finding that the
detectives “identified specific, objective factors sufficient to
permit them to expand the scope of questioning” and did not
unreasonably prolong the stop. Mendez subsequently entered
a conditional guilty plea, preserving his right to appeal the
court’s ruling on the suppression motion. The district court
sentenced him to fifty-seven months in prison. He appeals.
II. DISCUSSION
Mendez does not contest the legality of the initial traffic
stop. Instead, he argues that the officers’ unrelated question-
ing and the purported extended detention violated his Fourth
Amendment rights because (1) the officers did not observe
additional particularized, objective factors sufficient to create
reasonable suspicion to justify interrogating him about mat-
ters beyond the purpose of the stop, and (2) the officers unrea-
sonably prolonged the stop.3
[1] We agree with the district court that the stop was not
unnecessarily prolonged. Det. Jaensson’s questioning
occurred while Det. Bracke was running a check on Mendez’s
identification. It could not have expanded the duration of the
stop since the stop would, in any event, have lasted until after
the check had been completed. See Berkemer v. McCarty, 468
3
Mendez also claims that the officers’ questioning violated Arizona law.
However, Mendez forfeited his state law claim by failing to raise it before
the district court in his motion to suppress.
UNITED STATES v. MENDEZ 2089
U.S. 420, 437 (1984) (stating that a records check is an
expected part of a traffic stop). Having overheard Mendez’s
answer to Det. Jaensson as he was returning to his vehicle,
Det. Bracke immediately asked his two questions. The arrest
occurred only eight minutes after the stop.
Mendez further argues that the officers were not diligently
investigating the traffic violation because the officers did not
run a check on his car’s vehicle identification or its registra-
tion until after he had been arrested. However, the district
court’s factual determination that the officers were diligently
pursuing the purpose of the traffic stop was not clearly errone-
ous. The record suggests that, until Mendez told the officers
about his prison record and his possession of a weapon, Det.
Bracke may have intended to let him go with a warning about
his expired temporary registration plate and, thus, may have
seen no need to check his registration or vehicle registration
number further.
[2] Mendez’s primary argument, that the officers lacked
reasonable suspicion to support their questioning, is “prem-
ised on the assumption that the officers were required to have
independent reasonable suspicion in order to question [him]
. . . because the questioning constituted a discrete Fourth
Amendment event.” Muehler v. Mena, 544 U.S. 93, 100-01
(2005). In making this claim, Mendez understandably relied
on our precedent holding that, during a traffic stop, a police
officer may only “ask questions that are reasonably related in
scope to the justification for his initiation of contact” and may
expand the scope of questioning beyond the initial purpose of
the stop only if he “articulate[s] suspicious factors that are
particularized and objective.” United States v. Murillo, 255
F.3d 1169, 1174 (9th Cir. 2001); see also United States v.
Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001) (“An
officer must initially restrict the questions he asks during a
stop to those that are reasonably related to the justification for
the stop.”); United States v. Perez, 37 F.3d 510, 513 (9th Cir.
1994). The Supreme Court, however, recently decided in
2090 UNITED STATES v. MENDEZ
Muehler, that “mere police questioning does not constitute a
seizure” unless it prolongs the detention of the individual,
and, thus, no reasonable suspicion is required to justify ques-
tioning that does not prolong the stop. Muehler, 544 U.S. at
101 (internal quotation marks omitted). Although Muehler
involved an interrogation during a search of a building, and
made no mention of our precedent regarding questioning dur-
ing traffic stops, its reasoning is equally applicable in the traf-
fic stop context. See id. (noting that in Illinois v. Caballes,
543 U.S. 405, 408 (2005), it “rejected the notion that the shift
in purpose from a lawful traffic stop into a drug investigation
was unlawful because it was not supported by any reasonable
suspicion.” (internal quotation marks omitted)). To the extent
that Chavez-Valenzuela, Murillo, and Perez hold that such
questioning must be supported by separate reasonable suspi-
cion, they have been overruled by Muehler. See Miller v.
Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (holding that
a three-judge panel may depart from Circuit precedent that
has not “been expressly overruled by an en banc court” when
an intervening decision by the Supreme Court or en banc
court has “undercut the theory or reasoning underlying the
prior circuit precedent in such a way that the cases are clearly
irreconcilable”). Thus, because we conclude that the officers’
questioning did not prolong the stop, we are compelled to
hold that the expanded questioning need not have been sup-
ported by separate reasonable suspicion.
III. CONCLUSION
We hold that the officers’ questioning of Mendez did not
extend the duration of a lawful stop. For this reason, we also
hold that the expanded questioning need not have been sup-
ported by separate reasonable suspicion.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047382/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-30-2009
Tsakonas v. Cicchi
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4115
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Recommended Citation
"Tsakonas v. Cicchi" (2009). 2009 Decisions. Paper 1966.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4115
PAUL TSAKONAS,
Appellant
v.
WARDEN EDMOND CICCHI, individually and as Warden at
Middlesex County Correction Center; MIDDLESEX COUNTY
ADULT CORRECTION CENTER; COUNTY OF MIDDLESEX;
TRENTON STATE PSYCHIATRIC HOSPITAL;
WILLIAM J. MAY, individually and as CEO at Trenton State
Psychiatric Hospital; HUGH MOORE, Individually and as M.D.
at Middlesex County Correction Center; R.N. SANDRA VARGAS,
Individually and as a Nurse at Middlesex County Correction Center;
MARIA M. MCQUAY; KATHIE DEFURIA, Individually and
as supervisor at Middlesex County Probation Department;
MIDDLESEX COUNTY PROBATION DEPARTMENT;
THOMAS MANO, Individually and as Director of Health
Information Services at Trenton State Psychiatric Hospital;
COLLETTE DURAVAL, Individually and as an agent at
Trenton State Psychiatric Hospital; VICTORIA CANAVERA,
Individually and as Coordinator at State of New Jersey,
Department of Human Services, Division of Mental Health Services
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 04-cv-04973)
District Judge: The Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
January 15, 2009
Before: SLOVITER, BARRY, and SILER, JR.,* Circuit Judges
(Opinion Filed: January 30, 2009)
OPINION
BARRY, Circuit Judge
Appellant Paul Tsakonas appeals the order of the District Court granting the
motions for summary judgment of appellees Maria McQuay, Kathie DeFuria, Dr. Hugh
Moore, Sandra Vargas, Warden Edmond Cicchi, Middlesex County, and Middlesex
County Adult Correction Center (“MCACC”). We have jurisdiction under 28 U.S.C. §
1291, and will affirm.
I.
On March 6, 2003, Tsakonas pled guilty to violating a restraining order issued by
the Middlesex County Family Court and was sentenced to one year of probation, with the
condition that he participate in “any counseling probation deems necessary.” The
undisputed facts demonstrate that Tsakonas repeatedly missed meetings with his
probation officer and never provided documentation to prove that he attended any of the
required anger management counseling sessions. On October 26, 2003, Tsakonas was
*
The Honorable Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
2
arrested following an incident where he struck a pay phone in a motel lobby, and his
mother contacted his current probation officer, appellee Maria McQuay, to report his
erratic behavior and suspected abuse of ecstasy and crack cocaine. McQuay and her
supervisor, appellee Kathie DeFuria, ordered Tsakonas to enter into drug treatment and
warned him that failure to do so would be considered a violation of probation. When he
refused to do so, the officers initiated violation of probation proceedings.
Following a hearing, the Superior Court of New Jersey revoked Tsakonas’s
probation and sentenced him to a 30-day hospital inpatient evaluation. Finding that he
presented a substantial risk of harm to himself and others, the Court remanded him to the
custody of MCACC to await evaluation.
Because a hospital bed was not immediately available, Tsakonas remained in the
MCACC medical unit from November 6, 2003 until approximately January 7, 2004.
During this time, he was seen and evaluated by numerous mental health professionals
including appellee Dr. Hugh Moore, and he was placed on high visibility psychiatric
watch. After about one week at MCACC, he was temporarily transferred to Acute
Psychiatric Services (“APS”) at University Behavioral Healthcare for a determination as
to whether he met the standard of dangerousness necessary for immediate commitment.
Because he did not meet this standard, he was returned to the MCACC medical unit.
Appellee Sandra Vargas was the health services administrator at MCACC and
coordinated his eventual transfer to Trenton State Psychiatric Hospital (“TPH”). While at
3
MCACC, Tsakonas lost 24 pounds, showered only twice, did not shave, and developed
eczema of the feet, seborrhea of the scalp, athlete’s foot, and swollen knuckles on his
right hand. He claims that he did not move his bowels for 30 days.
Tsakonas now appeals the District Court’s decision granting summary judgment to
appellees on his 42 U.S.C. § 1983 claims for malicious prosecution in violation of the
Fourth Amendment, as against McQuay and DeFuria, and inadequate medical care in
violation of the Eighth and Fourteenth Amendments, as against the remaining appellees.
II.
A. Malicious Prosecution
Tsakonas argues that the District Court erred when it concluded that McQuay and
DeFuria had probable cause to initiate a violation of probation proceeding against him.
To prevail on a malicious prosecution claim brought under the Fourth Amendment, a
plaintiff must establish that: (1) the defendant initiated a criminal proceeding against the
plaintiff, (2) the proceeding ended in plaintiff’s favor, (3) the defendant was motivated
by malice, (4) the proceeding was brought without probable cause, and (5) the plaintiff
“suffered a deprivation of liberty consistent with the concept of seizure as a consequence
of a legal proceeding.” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).
The District Court did not err in granting summary judgment because the
undisputed evidence demonstrated that McQuay and DeFuria had probable cause to
initiate proceedings against Tsakonas. It is undisputed that Tsakonas missed numerous
4
meetings with his probation officer throughout 2003, failed to document that he attended
anger management counseling, and failed to enter a drug treatment program when
ordered to by the probation officers. We will affirm the District Court’s grant of
summary judgment to McQuay and DeFuria.
B. Inadequate Medical Care
The District Court evaluated Tsakonas’s claim for inadequate medical care under
the Eighth Amendment1 , which proscribes “unnecessary and wanton infliction of pain.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153,
173 (1976)). To establish a violation of the Eighth Amendment, a prisoner must show
that the defendants exhibited “deliberate indifference to serious medical needs.” Id.
1. Liability of MCACC Health Care Providers
Because appellees Moore and Vargas provided adequate medical care to Tsakonas
1
There is some suggestion in the record that Tsakonas was (or should be) considered
a pretrial detainee during his time at MCACC. Neither the parties nor the District Court
explicitly considered the question of whether status as a pretrial detainee would have
provided Tsakonas with additional protections under the Due Process Clause of the
Fourteenth Amendment. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005)
(holding that the Eighth Amendment is not applicable in cases involving pretrial detainees
because the detainees “are not yet at a stage of the criminal process where they can be
punished because they have not as yet been convicted of anything.”).
Because the parties have not raised this issue before us and because Tsakonas
argues only that appellees exhibited deliberate indifference to his serious medical needs,
we need not reach the issue and will evaluate his claim, as did the District Court, under
the Eighth Amendment. Natale v. Camden County Corr. Facility, 318 F.3d 575, 581 n.5
(3d Cir. 2003) (“As the issue was not raised before us, we do not decide whether the Due
Process Clause provides additional protections to pretrial detainees beyond those
provided by the Eighth Amendment to convicted prisoners.”).
5
while he awaited placement for hospitalization, the District Court correctly concluded
that they did not exhibit deliberate indifference to Tsakonas’s medical needs.
First, Tsakonas’s medical records from MCACC demonstrate – and, indeed, it is
undisputed – that Tsakonas was examined by several mental health professionals while at
MCACC and that he had access to treatment for his various physical conditions. His
need for a full mental health evaluation was recognized from the outset, and on his
transfer to APS he was also evaluated to determine whether he met the standard for
immediate commitment.
Second, the District Court did not err when it concluded that Tsakonas’s medical
ailments were not “serious medical needs” for purposes of the Eighth Amendment. In
order to be considered “serious,” “[t]he detainee’s condition must be such that a failure to
treat can be expected to lead to substantial and unnecessary suffering, injury, or death.
Moreover, the condition must be one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity
for a doctor’s attention.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir.
1991) (internal quotations and citations omitted). Tsakonas’s alleged medical problems
were weight loss, eczema of the feet, seborrhea of the scalp, athlete’s foot, constipation,
and swollen knuckles on his right hand. These are not life-threatening conditions, and it
is undisputed that he never complained about them while at MCACC or that he has
suffered any long-term effects from any delay in treatment.
6
The District Court did not err when it concluded that Tsakonas’s claim of
inadequate medical care fails as a matter of law.
2. Liability of Supervisory/Institutional Defendants
Tsakonas argues that appellees Cicchi, Middlesex County, and MCACC are also
subject to supervisory liability for the violation of his constitutional right to adequate
medical care while at MCACC. Supervisors may be held liable under § 1983 for
constitutional violations of their subordinates if it is shown that they, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom
which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne County
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). As discussed above, there was no
constitutional harm, as Tsakonas was provided with adequate medical care. Therefore,
the District Court correctly granted summary judgment to these appellees.
III.
For the reasons stated above, we will affirm the judgment of the District Court.
7 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2909395/ | Carl V. Long v. C. Tony Wright
IN THE
TENTH COURT OF APPEALS
No. 10-01-173-CV
     CARL V. LONG,
                                                                         Appellant
     v.
     C. TONY WRIGHT,
                                                                         Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 00-00-10201-CV
                                                                                                               Â
                                                                                                        Â
O P I N I O N
                                                                                                               Â
      Carl Long was accused of manufacturing methamphetamine. In August 1999, the trial court
appointed Don Phillips to represent him. Long subsequently hired C. Tony Wright as his lawyer.
The docket sheet reflects a pre-trial hearing in October 1999 attended by Wright; Longâs pre-trial
motions were denied. Over time, there were numerous disagreements between Long and Wright,
and in January 2000, Wright filed a motion to withdraw. However, at a hearing on January 19,
Long told the court he wanted Wright to continue to represent him; the court denied the motion
to withdraw.
      But Long and Wright continued to have disagreements, and Long eventually filed a grievance
against Wright. In addition, plea bargaining broke down between Long and the State. Without
issuing an order allowing Wright to withdraw, in April the court reappointed Don Phillips to
represent Long.
      Five days before trial in August, Wright filed another motion to withdraw which the court
granted. Trial proceeded with court-appointed counsel, Phillips. Long was convicted, and on
August 15, 2000, he was sentenced to forty-five years in prison. Another attorney was appointed
to represent Long post-trial.
      In December 2000, from his prison cell, Long filed a pro-se civil suit against Wright, alleging
inter alia:
      â¢Â    Long contracted with Wright for Wright to represent him through trial.
Â
      â¢Â    The agreed fee was $15,000, payable by September 1, 2001.
Â
      â¢Â    Long âsigned his homestead over to C. Tony Wright for collateral until he could pay
Attorney Tony Wright for his services.â
Â
      â¢Â    Wright did not show up at a pre-trial hearing on January 14, 2000. Although requested
to by Long, Wright did not reschedule the hearing.
Â
      â¢Â    Several months later, Long filed a grievance against Wright. âTony Wright broke the
contract agreement. . . . Carl Long simply wanted Tony Wright to do his job as was
agreed upon.â
Â
      â¢Â    Wright withdrew five days before trial, claiming a conflict of interest. âThis is Tony
Wrightâs excuse so he can steal Carl Longâs homestead.â
Â
      â¢Â    âNo property or money was refunded.â
Â
      â¢Â    Long is entitled to: (1) return of âhis homestead and homeowners deed,â or in the
alternative, $15,000, the âagreed upon value of said homestead . . . by nature of the
contract,â (2) punitive damages of at least $15,000, and (3) any attorneyâs fees that may
be incurred.
      Wright filed a general denial and requests for disclosure. Tex. R. Civ. P. 83, 194. In April
2001, the trial court issued an âOrder of Dismissalâ under chapter fourteen of the Civil Practice
and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ch. 14 (Vernon Supp. 2002). In the
order, the court made three fact findings:
      1.   âThe complaint fails to show a coherent cause of actionâ;
Â
      2.   âThe allegations contained therein are contrary to the Courtâs recollection of such events
of which the Court takes judicial knowledgeâ; and
Â
      3.   âSuch complaint is frivolous.â
Long appeals pro se from this order.
      Chapter fourteen provides that lawsuits in which an inmate files an affidavit of inability to
pay, as did Long, or the unsworn declaration allowed for those incarcerated, may be dismissed
if the action is frivolous or malicious or if the affidavit or declaration contains false claims. Id.
§ 14.003(a)(2) (Vernon Supp. 2002); Tex. R. Civ. P. 145; Tex. Civ. Prac. & Rem. Code Ann.
ch. 132 (Vernon 1992). The standard of review for a chapter fourteen dismissal is âabuse of
discretion.â Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.âWaco 1996, no pet.); Samuels
v. Strain, 11 S.W.3d 404, 406 (Tex. App.âHouston [1st Dist.] 2000, no pet.). A trial court
abuses its discretion in a chapter fourteen dismissal if it acts arbitrarily or unreasonably. Hickson,
926 S.W.2d at 398; see Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.
App.âAustin 1997, writ denied) (a chapter thirteen caseâthe equivalent dismissal proceeding for
non-inmate litigation; it is an abuse of discretion to dismiss a case that has an arguable basis in fact
or law) (citing Hector v. Thaler, 862 S.W.2d 176, 179 (Tex. App.âHouston [1st Dist.] 1993, no
writ)). The court may, but is not required to, hold a hearing before dismissing the case. See Tex.
Civ. Prac. & Rem. Code Ann. §14.003(c). Here the court did not.
      In determining whether the lawsuit is frivolous or malicious, the court may consider whether
or not (1) the actionâs realistic chance of ultimate success is slight, (2) the claim has no arguable
basis in law or in fact, (3) it is clear that the party cannot prove facts in support of the claim, or
(4) the claim is substantially similar to a previous claim filed by the inmate because the claim
arises from the same operative facts. Id. § 14.003(b). After our review of the record, we find
that Long has pled breach of a contract he claims he had with Wright. He has set forth facts
underlying his claim and has pled for appropriate remedies. We do not find his pleadings
âincoherent.â Furthermore, there is nothing in the record to contradict Longâs allegations. The
trial courtâs fact-findings do not establish that Long would not prevail at trial. Neither Wrightâs
general denial nor his brief on appeal address the substance of Longâs allegations.
In conclusion,
we find no basis in the record on which a trial court could reasonably determine Longâs case to
be frivolous.
      However, as Wright points out, Long never filed a separate affidavit or declaration as to
whether he had ever filed other suits pro se, as is required by section 14.004. Id. §14.004
(Vernon Supp. 2002). We have held that failure to file this affidavit is fatal, and can be the basis
of a dismissal. Hickson, 926 S.W.2d at 399.
      Accordingly, the order of dismissal is affirmed.
                                                                         BILL VANCE
                                                                         Justice
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed January 9, 2002
Do not publish
[CV06]
ustify;line-height:200%'> In Estelle v. Smith,
the Court construed the Sixth Amendment right to counsel quite broadly, beyond the
trial on the merits. 451 U.S. 454, 470, 101 S. Ct. 1866, 1876, 68 L. Ed. 2d
359 (1981).
It is central to [the Sixth
Amendment] principle that in addition to counselÂs presence at trial, the
accused is guaranteed that he need not stand alone against the State at any
stage of the prosecution, formal or informal, in court or out, where counselÂs
absence might derogate from the accusedÂs right to a fair trial.
Â
Id. (quoting United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149 (1967)).
         Conversely, the Court has
construed the Sixth Amendment right to jury trial more narrowly. Thus, the
Court has held that there is no right to jury trial for a petty offense,
defined as one in which the punishment assessed is no more than six months. Â Lewis
v. United States, 518 U.S. 322, 325-26, 116 S. Ct. 2163, 2166-67, 135 L.
Ed. 2d 590 (1996) (citing Duncan v. Louisiana, 391 U.S. 145, 159, 88 S. Ct. 1444, 1453, 20 L. Ed. 2d 491 (1968)).
         The Court has also held on
several occasions that there is no Sixth Amendment right to have a jury assess
punishment. See, e.g., Morgan v. Illinois, 504 U.S. 719, 725-26, 112 S. Ct. 2222, 2228, 119 L. Ed. 2d 492 (1992); Spaziano v. Florida, 468 U.S. 447, 464, 104 S. Ct. 3154, 3164, 82 L. Ed. 2d 340 (1984); accord Barrow v. State, 207
S.W.3d 377, 380 (Tex. Crim. App. 2006).
         In Apprendi v. New
Jersey and its progeny however, the Court has held that the Sixth Amendment
right to jury trial does extend to the punishment phase insofar as the State
may seek
imposition of a sentence
on the basis of findings beyond those Âreflected in the jury verdict or
admitted by the defendant.ÂÂ United States v. Booker, 543 U.S. 220, 232, 125 S. Ct. 738, 749, 160 L. Ed. 2d 621 (2005) (quoting Blakely v. Washington,
542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403 (2004)); see
also Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439-40, 153 L.
Ed. 2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000).
         The Court has also extended
at least a sub-part of a defendantÂs Sixth Amendment right of confrontation to
the punishment phase. Â ÂOne of the most basic of the rights
guaranteed by the Confrontation Clause is the accusedÂs right to be present in
the courtroom at every stage of his trial.  Illinois v. Allen,
397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d 353 (1970) (emphasis
added) (citing Lewis v. United States, 146 U.S. 370, 374-75, 13 S. Ct.
136, 137, 36 L. Ed. 1011 (1892)) (ÂOut of abundant tenderness for the right
secured to the accused by our constitution to be confronted by the witnesses
against him, and to be heard by himself or counsel, our court has gone a step
further, and held that it must be shown by the record that the accused was
present in court pending the trial.Â);[6]
accord Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004) (ÂOne
of the most basic of the rights guaranteed by the Confrontation Clause is the
accusedÂs right to be present in the courtroom during his trial.Â); Baltierra
v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979) (Âwithin the scope of
the right of confrontation is the absolute requirement that a criminal
defendant who is threatened with loss of liberty be physically present at all
phases of proceedings against himÂ) (emphasis added); Kessel v. State,
161 S.W.3d 40, 45 (Tex. App.ÂHouston [14th Dist.] 2004, pet. refÂd), cert.
denied, ___ U.S. ___, 126 S. Ct. 484, 163 L. Ed. 2d 369 (2005) (ÂOne of the
most basic rights guaranteed by the Confrontation Clause is the defendantÂs
right to be present in the courtroom at every stage of his trial.Â); In re
C.T.C., 2 S.W.3d 407, 410 (Tex. App.ÂSan Antonio 1999, no pet.) (juvenile Âhas
the same constitutional right to be present at the proceedings as a criminal
defendant hasÂ).
         Thus, in Kessel the
Fourteenth Court of Appeals reversed a defendantÂs punishment where the trial
court excluded the defendant from the courtroom during the punishment phase. See
Kessel, 161 S.W.3d at 47-49. And in Garcia, the Court of Criminal
Appeals reversed the defendantÂs conviction because he did not speak English
and no interpreter had been appointed to translate the proceedings for him. See
Garcia, 149 S.W.3d at 145-46; see also Baltierra, 586 S.W.2d at 559;
Miller v. State, 177 S.W.3d 1, 8 (Tex. App.ÂHouston [1st Dist.] 2004, no
pet.).
         From these decisions we
conclude that the Sixth Amendment right of confrontation applies in some, but
not all, respects to the punishment phase of an adult criminal trial.
Â
Â
Texas Decisions
         No Texas court has
expressly determined whether the Sixth Amendment right of confrontation applies
during the punishment phase of an adult criminal trial or the disposition phase
of a juvenile delinquency proceeding. Cf. Young v. State, No. 02-04-501-CR, 2005 Tex. App. LEXIS 9498, at *3-4 (Tex. App.ÂFort Worth Nov. 10, 2005, no pet.) (not designated for publication) (ÂWe believe
the right to counsel applies even at punishment in a bench trial. And until a
higher court instructs us to the contrary, we shall apply the Sixth Amendment
in its entirety, even to bench trials.Â). Rather, because the Court of
Criminal Appeals and six intermediate courts of appeals have addressed the
merits of claims that the right of confrontation was violated at punishment (or
have found those claims waived by a failure to object), these courts have at
least implicitly concluded that there is a Sixth Amendment right of
confrontation at punishment.[7]
         In similar fashion, the Eastland Court
of Appeals has implicitly concluded that the Sixth Amendment right of confrontation
applies during a hearing on a motion to modify a juvenile disposition when that
court addressed the merits of the appellantÂs confrontation complaint. See
In re J.R.L.G., No. 11-05-002-CV, 2006 Tex. App. LEXIS 3344, at *2-6 (Tex. App.ÂEastland Apr. 27, 2006, no pet.) (mem. op.).
         Conversely, this Court and three
others have concluded that a juvenile has no right of confrontation at a
discretionary transfer hearing. See In re S.M., 207 S.W.3d 421, 425
(Tex. App.ÂFort Worth 2006, pet. filed); In re D.L., 198 S.W.3d 228,
229-30 (Tex. App.ÂSan Antonio 2006, pet. denied); In re T.D.B., No.
10-05-015-CV, 2006 Tex. App. LEXIS Â 1491, at *3 (Tex. App.ÂWaco Feb. 22, 2006,
no pet.) (mem. op.); In re C.D.T., 98 S.W.3d 280, 283 (Tex. App.ÂHouston [1st Dist.] 2003, pet. denied).
         And two Texas courts have held that a
defendant in a community-supervision revocation proceeding has only a limited
right of confrontation under the Due Process Clause of the Fourteenth Amendment
rather than under the Sixth Amendment. See Diaz v. State, 172 S.W.3d 668,
669-72 (Tex. App.ÂSan Antonio 2005, no pet.) (citing Gagnon v. Scarpelli,
411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer,
408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)) (other citations omitted);
Smart v. State, 153 S.W.3d 118, 120-21 (Tex. App.ÂBeaumont, pet. refÂd)
(same), cert. denied, ___ U.S. ___, 126 S. Ct. 663, 163 L. Ed. 2d 527
(2005).
Decisions in Other Jurisdictions
         The federal courts of
appeals have virtually unanimously concluded post-Crawford that there is
no right of confrontation at sentencing.[8]Â
Courts in at least eleven other states have likewise held that there is no
right of confrontation at sentencing.[9]Â
Courts in two states have held in
similar fashion that a juvenile has no right of confrontation during the
disposition phase of trial. C.C. v. State, 826 N.E.2d 106, 111 (Ind. Ct. App. 2005); In re Romeo C., 40 Cal. Rptr. 2d 85, 89-91 (Cal. Ct. App. 1995).Â
But the high court of only one state has expressly
held that the Sixth Amendment right of confrontation applies at sentencing. Rodgers
v. State, No. SC04-1425, 2006 Fla. LEXIS 2542, at *12-13 (Fla. Oct. 26,
2006) (per curiam).
         In some states, courts have not taken
definitive positions.[10]Â By
comparison, the Arizona Supreme Court has recognized
a limited right of confrontation at sentencing. State v. McGill,
140 P.3d 930, 942 (Ariz. 2006) (Confrontation Clause applies to hearsay offered
at punishment to prove an aggravating factor but not to hearsay offered in
rebuttal of mitigating evidence); see also Dayton v. State, 2005 Alas.
App. LEXIS 147, at *8 (Alaska Ct. App. Sept. 8, 2005)
(Âa judge who is making findings of fact at sentencing proceedings can rely on
out-of-court statements described in the pre-sentence report for proof of the
matters asserted, unless the defendant offers a testimonial denial of those
statements and submits to cross-examination, in which case the State must
support its assertions with live testimony.Â).
Sixth Amendment Summary
         There is an indisputable
Sixth Amendment right to counsel during the punishment phase and an
indisputable right to be present during the punishment phase, the latter of
which is a part of the Sixth Amendment right of confrontation. However, there
is only a limited Sixth Amendment right to a jury during the punishment phase
under Apprendi at its progeny. And most state and federal courts which
have directly addressed the issue have concluded that there is no Sixth
Amendment right of confrontation at sentencing.
         Nevertheless, the Court of
Criminal Appeals and a significant number of the intermediate appellate courts
in Texas have at least implicitly concluded that a defendant has a Sixth
Amendment right of confrontation at sentencing by addressing the merits of such
claims or concluding that such claims were waived.
         Here, because this is a
juvenile proceeding, we need not determine the precise parameters of the Sixth
Amendment right of confrontation during the punishment phase of an adult
criminal trial. We do conclude, however, that at a minimum an adult criminal
defendant has a constitutional right of confrontation at sentencing: (1) in
cases in which the State seeks imposition of a sentence on the basis of findings beyond those Âreflected
in the jury verdict or admitted by the defendantÂ; see Booker, 543 U.S. at
232, 125 S. Ct. at 749; McGill, 140 P.3d at 942; and
(2) whenever the State calls a witness to testify at punishment. See Allen,
397 U.S. at 338, 90 S. Ct. at 1058; Garcia, 149 S.W.3d at 140; Baltierra,
586 S.W.2d at 556; Kessel, 161 S.W.3d at 45; C.T.C., 2 S.W.3d at
410.
Â
Â
Impact on Juvenile Proceedings
         Having determined that there is at
least a limited Sixth Amendment right of confrontation during
the punishment phase of an adult criminal trial, we now examine the impact
the application of that right would have on the juvenile justice system. See
Hidalgo, 983 S.W.2d at 752; J.S.S., 20 S.W.3d at 842.
         The Texas juvenile justice system requires courts to balance the
need for public safety and punishment for criminal conduct with the medical,
educational and rehabilitative needs and the best interests of the juvenile
delinquent, while simultaneously ensuring that his Âconstitutional and other
legal rights are protected. See Tex.
Fam. Code Ann. § 51.01 (Vernon 2002). Among other purposes, the
juvenile justice system is supposed to:
·                  Â
provide treatment, training,
and rehabilitation that emphasizes the accountability and responsibility of
both the parent and the child for the childÂs conduct;
Â
·                  Â
provide for the care, the
protection, and the wholesome moral, mental, and physical development of
children coming within its provisions; and
Â
·                  Â
achieve the foregoing
purposes in a family environment whenever possible, separating the child from
the childÂs parents only when necessary for the childÂs welfare or in the
interest of public safety and when a child is removed from the childÂs family,
to give the child the care that should be provided by parents.
Â
Id.
§ 51.01(2)(C), (3), (5).
         There appears to be only one potential
fact issue to be determined during the disposition phase of a juvenile
proceeding which may permit a disposition more severe than authorized by
findings Âreflected in the jury verdict [from the
adjudication phase].Â[11]
 See Booker, 543 U.S. at 232, 125 S. Ct. at 749. That issue is whether
the juvenile engaged in Âhabitual felony conduct. See Tex. Fam. Code Ann. § 54.04(m) (Vernon Supp. 2006).[12]
         Nevertheless, under Apprendi
and its progeny, a finding that a juvenile engaged in Âhabitual felony conductÂ
is nothing more than a finding that the juvenile has been previously and
sequentially adjudicated of at least two prior felonies. Such a finding does
not invoke the Sixth Amendment right to jury trial recognized in Apprendi.Â
See 530 U.S. at 490, 120 S. Ct. at 2362-63 (ÂOther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.Â) (emphasis added).
         Because there are no
findings to be made in the disposition phase which would invoke the Sixth
Amendment right to jury trial recognized by Apprendi and its progeny and
because of the importance of effectively addressing the medical, educational and rehabilitative needs
and the best interests of the juvenile delinquent as recognized by the Juvenile
Justice Code, we conclude that a juvenile has no Sixth Amendment right of
confrontation during the disposition phase. See C.C., 826 N.E.2d at 111;
Romeo C., 40 Cal. Rptr. 2d at 89-91. Such a conclusion preserves the
flexibility inherent in the design of the juvenile justice system for ensuring
that the needs of each child are adequately addressed in the disposition phase.
         Nevertheless, the Juvenile Justice
Code expressly recognizes that a juvenile must be provided a Âfair hearing and
his or her Âconstitutional and other legal rights must be Ârecognized and
enforced. Tex. Fam. Code Ann. §
51.01(6). Therefore, we hold that a juvenile has a limited right of
confrontation under the Due Process Clause of the Fourteenth Amendment rather
than under the Sixth Amendment. Cf. Gagnon, 411 U.S. at 782-86, 93 S. Ct. at 1760-62; Morrissey, 408 U.S. at 487-89, 92 S. Ct. at 2603-04;
Diaz, 172 S.W.3d at 670-71; Smart, 153 S.W.3d at 121.
Due Process Right of Confrontation
         The Supreme Court in Morrissey explained
that this Âprocess should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be admissible in an
adversary criminal trial.ÂÂ 408 U.S. at 489, 92 S. Ct. at 2604; accord Diaz,
172 S.W.3d at 670-71; Smart, 153 S.W.3d at 121. The Court discussed
this due process right of confrontation in more detail in Gagnon.
An additional comment is warranted with respect
to the rights to present witnesses and to confront and cross-examine adverse
witnesses. PetitionerÂs greatest concern is with the difficulty and expense of
procuring witnesses from perhaps thousands of miles away. While in some cases
there is simply no adequate alternative to live testimony, we emphasize that we
did not in Morrissey intend to prohibit use where appropriate of the
conventional substitutes for live testimony, including affidavits, depositions,
and documentary evidence. Nor did we intend to foreclose the States from
holding both the preliminary and the final hearings at the place of violation
or from developing other creative solutions to the practical difficulties of
the Morrissey requirements.
Â
411 U.S. at 782 n.5, 93 S. Ct. at 1760 n.5; accord
Diaz, 172 S.W.3d at 671.
         Therefore, the Supreme CourtÂs
jurisprudence regarding the Sixth Amendment right of confrontation, and
particularly Crawford, has no application to the disposition phase of a
juvenile delinquency proceeding. See Diaz, 172 S.W.3d at 672; Smart,
153 S.W.3d at 120-21. Instead, the due process right of confrontation
described in Gagnon applies. Id.; see also People v. Johnson,
18 Cal. Rptr. 3d 230, 232 (Cal. Ct. App. 2004); People v. Turley, 109
P.3d 1025, 1026 (Colo. Ct. App. 2004); Jenkins v. State, 2004 Del. LEXIS 549, at *8-9 (Del. 2004) (not designated for publication); Young v. United States, 863 A.2d 804, 807-08 (D.C. 2004); Peters v. State, 919 So. 2d
624, 626-28 (Fla. Ct. App. 2006, review granted); State v. Rose, 2006 WL
1459803, at *4 (Idaho Ct. App. 2006, review granted); Reyes v. State,
853 N.E.2d 1278, 1281-83 (Ind. Ct. App. 2006); State v. Abd-Rahmaan, 111
P.3d 1157, 1160-61 (Wash. 2005).
         Under the due process right of
confrontation described in Morrissey and Gagnon, a defendant has Âthe
right to confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing confrontation).ÂÂ Gagnon,
411 U.S. at 786, 93 S. Ct. at 1762 (quoting Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604); accord Ex parte Taylor, 957 S.W.2d 43, 44 (Tex. Crim. App.
1997) (per curiam); Diaz, 172 S.W.3d at 670; Smart, 153 S.W.3d at
121. Â Thus, the trial court must weigh the defendantÂs interest in confronting
and cross-examining an adverse witness against the StateÂs interest in not
having to produce that witness, Âparticularly focusing on the indicia of
reliability of the hearsay offered.ÂÂ Taylor, 957 S.W.2d at 46 (citing United
States v. McCormick, 54 F.3d 214 (5th Cir. 1995)) (other citations
omitted). This determination must be made on a case-by-case basis. Taylor, 957 S.W.2d at 46; see also Gagnon, 411 U.S. at 788-91, 93 S. Ct. at 1763-64; United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986); Downie
v. Klincar, 759 F. Supp. 425, 429 (N.D. Ill. 1991).
Texas
Constitution
         M.P. also contends that the admission
of the juvenile probation officerÂs report violated his right of confrontation
under article I, section 10 of the Texas Constitution.
         Article I, section 10 provides in
pertinent part, ÂIn all criminal prosecutions the accused  . . .  shall be
confronted by the witnesses against him and shall have compulsory process for
obtaining witnesses in his favor.ÂÂ Tex.
Const. art. I, § 10.
         Although M.P. observes some textual
differences between this provision and the Sixth Amendment, he does not cite
any authority which directly supports a proposition that the right of
confrontation under the Texas Constitution varies in any appreciable manner
from that provided in the Sixth Amendment. Rather, Texas courts have
consistently interpreted these provisions as providing the same protection. See,
e.g., Ex parte Johnson, 654 S.W.2d 415, 421 (Tex. 1983) (orig. proceeding);
Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997); Gomez
v. State, 183 S.W.3d 86, 91 (Tex. App.ÂTyler 2005, no pet.).
         Therefore, assuming without deciding
that the protections of article I, section 10 apply to a juvenile offender in
any instance, we hold that the right of confrontation under article I, section
10 does not apply to the disposition phase of a juvenile delinquency proceeding
just as we have previously determined that the Sixth Amendment right of
confrontation does not apply.
Â
Application
         Under Morrissey and Gagnon,
the trial court must balance the defendantÂs interest in confronting and
cross-examining an adverse witness with the StateÂs interest in not having to
produce that witness. Taylor, 957 S.W.2d at 46; see also United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v.
Martin, 382 F.3d 840, 844-45 (8th Cir. 2004); Barnes v. Johnson, 184
F.3d 451, 454 (5th Cir. 1999); Rose, 2006 WL 1459803, at *5; Reyes,
853 N.E.2d at 1283; Abd-Rahmaan, 111 P.3d at 1161-62. Here, the trial
court erred because it failed to conduct this balancing inquiry. We must determine
whether this error requires reversal. See In re D.I.B., 988 S.W.2d 753,
758-59 (Tex. 1999).
         According to the Juvenile Justice
Code, Â[t]he requirements governing an appeal are as in civil cases
generally.ÂÂ Tex. Fam. Code Ann.
§ 56.01(b) (Vernon Supp. 2006). Most courts which have discussed the
appropriate harm analysis have concluded that the harm analysis applicable in
civil appeals (Rule of Appellate Procedure 44.1) applies to a juvenile
delinquency appeal unless the appellant received a determinate sentence. See
In re J.H., 150 S.W.3d 477, 485 (Tex. App.ÂAustin 2004, pet. denied); In
re D.V., 955 S.W.2d 379, 380 (Tex. App.ÂSan Antonio 1997, no pet.); In
re D.Z., 869 S.W.2d 561, 565-66 (Tex. App.ÂCorpus Christi 1993, writ
denied); but cf. In re L.R., 84 S.W.3d 701, 707 (Tex. App.ÂHouston [1st Dist.] 2002, no pet.) (expressly declining to decide what harm analysis
applies for a case involving Ânon-determinate sentencingÂ). Because the court
did not impose a determinate sentence, we will apply the harm analysis of Rule
44.1.
         Rule 44.1(a) permits reversal for
error only if the error: Â(1) probably caused the rendition of an improper
judgment; or (2) probably prevented the appellant from properly presenting the
case to the court of appeals.ÂÂ Tex. R.
App. P. 44.1(a).
         Though the issue has apparently not
been decided in Texas, numerous courts in other jurisdictions have found such
error harmless in cases in which the hearsay evidence was sufficiently
reliable. See, e.g., United States v. Kelley, 446 F.3d 688, 692 (7th
Cir. 2006) (arresting officerÂs testimony and offense report); United States
v. Hall, 419 F.3d 980, 987 (9th Cir. 2005) (ÂHallÂs interest in excluding
[medical records and statements made for purposes of diagnosis or treatment]
was thus weakÂ); United States v. Morris, 140 F. AppÂx 138, 142-43 (11th
Cir. 2005) (per curiam) (not designated for publication) (written report
submitted to probation officer by defendantÂs case manager at halfway house
which was admissible as business record); State ex rel. Simpson v. Schwarz,
2002 WI App 7, ¶ 22, 640 N.W.2d 527, ¶ 22 (Wis. Ct. App. 2002) (good cause
requirement Âis always met when the evidence offered in lieu of an adverse
witnessÂs live testimony would be admissible under the Wisconsin Rules of
EvidenceÂ); see also United States v. Aspinall, 389 F.3d 332, 344 (2d
Cir. 2004) (no balancing required where evidence admissible under recognized
hearsay exception); United States v. Redd, 318 F.3d 778, 784-85 (8th
Cir. 2003) (upholding district courtÂs implicit findings with regard to
balancing test for Âdocumentary hearsay evidenceÂ); Williams v. Johnson,
171 F.3d 300, 306-07 (5th Cir. 1999) (failure to conduct balancing test
harmless because defendant did not dispute parole violation, proved by parole
officerÂs affidavit, but rather sought to prove reasons for violation).
         Here, the juvenile probation officerÂs
report was admissible in the disposition phase under a statutory exception to
the hearsay rule. See Tex. Fam.
Code Ann. § 54.04(b) (Vernon Supp. 2006). Thus, the Legislature has
determined that such reports have some degree of reliability for purposes of
determining the appropriate disposition in a particular case. In fact, such
reports have been required for the disposition phase of juvenile delinquency
proceedings since at least 1973.[13]Â See
Act of May 25, 1973, 63d Leg., R.S., ch. 544, § 1 54.04(b), 1973 Tex. Gen. Laws 1460, 1478. Our research has disclosed at least one appellate decision
which has addressed the reliability of such reports. See In re JV-512016,
923 P.2d 880 (Ariz. Ct. App. 1996). There, the court concluded that the
juvenile court did not abuse its discretion by accepting (1) hearsay statements
regarding extraneous offenses contained in the juvenile probation report and (2)
the juvenileÂs admissions to a clinician that he had committed these extraneous
offenses contained in the clinicianÂs report Âas reliable sources of
dispositional fact.ÂÂ Id. at 884.
         The report required by section
54.04(b) is very similar to the presentence investigation report required in
most felony cases. See Tex. Code
Crim. Proc. Ann. art. 42.12, § 9 (Vernon 2006). Courts have long held
that such reports have sufficient indicia of reliability to aid a court in
determining the appropriate sentence. See, e.g., United States v.
Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998); United States v.
Montoya-Ortiz, 7 F.3d 1171, 1180 (5th Cir. 1993); People v. Otto, 26
P.3d 1061, 1067-69 (Cal. 2001); State v. Crossman, 1994 Tenn. Crim. App. LEXIS 652, at *14-15 (Tenn. Crim. App. 1994); State v. Caldwell,
454 N.W.2d 13, 18 (Wis. Ct. App. 1990); see also Fryer v. State, 68
S.W.3d 628, 630-33 (Tex. Crim. App. 2002) (approving trial courtÂs
consideration of punishment recommendation by victim contained in PSI); Brown
v. State, 478 S.W.2d 550, 551 (Tex. Crim. App. 1972) (ÂTo suggest that the
judge should not use the information in the probation report because it
contains Âhearsay statements is to deny the obvious purpose of the statute.Â).
         Finally, we note that numerous courts
have found no due process violation arising from a trial courtÂs consideration
of a PSI report so long as the defendant is given a reasonable opportunity to
review the report before the hearing and the opportunity to dispute the
accuracy of information in the report and present controverting evidence. See
United States v. Inglesi, 988 F.2d 500, 502 (4th Cir. 1993); United States v. Musa, 946 F.2d 1297, 1306-08 (7th Cir. 1991); see also
Tex. Code Crim. Proc. Ann. art.
42.12, § 9(d), (e); DuBose v. State, 977 S.W.2d 877, 880-81 (Tex. App.ÂBeaumont 1998, no pet.) (discussing defendantÂs burden to dispute accuracy of
information in PSI); Garcia v. State, 930 S.W.2d 621, 623-24 (Tex. App.ÂTyler 1996, no pet.) (same); Hernandez v. State, 900 S.W.2d 835, 839 (Tex. App.ÂCorpus Christi 1995, no pet.) (same); Stancliff v. State, 852 S.W.2d 639,
641 (Tex. App.ÂHouston [14th Dist.] 1993, pet. refÂd) (same), overruled on
other grounds by Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000).
         Section 54.04(b) requires a juvenile
court to provide counsel for the child with access to any reports the court
will consider before the disposition hearing. Tex. Fam. Code Ann. § 54.04(b). To exercise the limited
right of confrontation we have recognized herein, a juvenile may subpoena any
necessary witnesses to challenge the accuracy of any information contained in
any reports to be offered under section 54.04(b). See In re M.R., 5
S.W.3d 879, 881-82 & n.3 (Tex. App.ÂSan Antonio 1999, pet. denied)
(describing limited right of confrontation available for transfer/release
hearing under section 54.11 of the Juvenile Justice Code).
Conclusion
         The juvenile probation officerÂs
report admitted during the disposition phase of M.P.Âs trial contains
sufficient indicia of reliability to allow us to conclude that the courtÂs
failure to conduct the balancing test required for the admission of hearsay
evidence without violating the limited due process right of confrontation
described in Morrissey and Gagnon did not Âprobably cause the
rendition of an improper judgment.ÂÂ See Kelley, 446 F.3d at 692; Hall,
419 F.3d at 987; Morris, 140 F. AppÂx at 142-43; Schwarz, 2002 WI
App 7, ¶ 22, 640 N.W.2d 527, ¶ 22; see also Aspinall, 389 F.3d at 344.
Therefore, we overrule M.P.Âs sole issue and
affirm the judgment.
Â
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief
Justice Gray issuing a separate opinion)
(Justice
Vance dissenting)
Affirmed
Opinion delivered and
filed February 7, 2007
[CV06]
[1]
         The report itself is nine pages,
excluding the cover page. There are about ninety pages of supporting
documentation appended to the report. ÂOver thirty referrals appears to be a
significant understatement. ÂOver sixty would be more accurate.
[2]
         Rule of Evidence 103(a)(1),
promulgated by the Supreme Court in 1982 for civil cases, was identical to the
quoted portion of the present Rule 103(a)(1). See Tex. R. Evid. 103(a)(1), 641-642 S.W.2d
(Tex. Cases) xxxvi (1982, amended 1988).
Â
[3]
         A similar rule applies in criminal
appeals.
Â
The trial court need never sort through
challenged evidence in order to segregate the admissible from the excludable,
nor is the trial court required to admit only the former part or exclude only
the latter part. If evidence is offered and challenged which contains some of
each, the trial court may safely admit it all or exclude it all, and the losing
party, no matter who he is, will be made to suffer on appeal the consequences
of his insufficiently specific offer or objection.
Â
Barnes v. State,
876 S.W.2d 316, 329 (Tex. Crim. App. 1994) (quoting Jones v. State, 843
S.W.2d 487, 492 (Tex. Crim. App. 1992)).
[4]
         The eight foundational decisions in chronological order: (1) Haley
v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948)
(coerced confession cannot be used against juvenile); (2) Kent v. United
States, 383 U.S. 541, 557, 86 S. Ct. 1045, 1055, 16 L. Ed. 2d 84 (1966)
(juvenile entitled to procedural protections in transfer hearing); (3) In re
Gault, 387 U.S. 1, 31-55, 87 S. Ct. 1428, 1445-58, 18 L. Ed. 2d 527 (1967)
(juvenile has due process rights of notice, counsel, confrontation,
cross-examination, and privilege against self-incrimination); (4) In re
Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075, 25 L. Ed. 2d 368 (1970)
(State must prove allegation of delinquent conduct beyond a reasonable doubt);
(5) McKeiver v. Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 1986,
29 L. Ed. 2d 647 (1971) (juvenile has no constitutional right to jury trial);
(6) Breed v. Jones, 421 U.S. 519, 528-29, 95 S. Ct. 1779, 1785, 44 L.
Ed. 2d 346 (1975) (double jeopardy protections apply to juveniles); (7) Schall
v. Martin, 467 U.S. 253, 281, 104 S. Ct. 2403, 2419, 81 L. Ed. 2d 207
(1984) (pretrial detention of juvenile does not violate due process); (8) New
Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 742-43, 83 L. Ed.
2d 720 (1985) (Fourth Amendment does not require probable cause to justify
school search).
[5]
         In Hidalgo, the Court of
Criminal Appeals addressed a juvenileÂs Sixth Amendment right to counsel in
connection with a court-ordered psychological examination under section
54.02(d) of the Juvenile Justice Code. See Hidalgo v. State, 983 S.W.2d
746, 748 (Tex. Crim. App. 1999) (citing Tex.
Fam. Code Ann. § 54.02(d)).
[6]
         In Lewis, the Supreme
Court was quoting the High Court of Errors and Appeals of Mississippi. See Lewis v. United States,
146 U.S. 370, 374-75, 13 S. Ct. 136, 137, 36 L. Ed. 1011 (1892) (quoting Dyson
v. State, 26 Miss. 362, 1853 WL 2394, at *15 (Miss. Err. & App. 1853)).
Â
[7]
         See, e.g., Russeau v. State,
171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 2982, 165 L. Ed. 2d 989 (2006); Stringer v. State, 196 S.W.3d 249,
251-52 (Tex. App.ÂFort Worth 2006, pet. granted); Nunes v. State, No.
05-04-1741-CR, 2006 Tex. App. LEXIS 2301, at *20 (Tex. App.ÂDallas Mar. 27,
2006, pet. refÂd) (not designated for publication); Smith v. State, No.
03-05-399-CR, 2006 Tex. App. LEXIS 2062, at *9-12 (Tex. App.ÂAustin Mar. 16,
2006, pet. refÂd) (not designated for publication); Ford v. State, 179
S.W.3d 203, 208-09 (Tex. App.ÂHouston [14th Dist.] 2005, pet. refÂd), cert.
denied, ___ U.S. ___, 127 S. Ct. 281, 166 L. Ed. 2d 215 (2006); Barela v.
State, No. 08-02-492-CR, 2004 Tex. App. LEXIS 8802, at *13-20 (Tex. App.ÂEl
Paso Sept. 30, 2004) (not designated for publication), affÂd on other
grounds, 180 S.W.3d 145 (Tex. Crim. App. 2005); Salazar v. State, 31
S.W.3d 726, 728-29 (Tex. App.ÂCorpus Christi 2000), revÂd on other grounds,
86 S.W.3d 640 (Tex. Crim. App. 2002).
Â
[8]
         See
United States v. Beydoun, 469 F.3d 102,
108 (5th Cir. 2006); United States v. Bustamante, 454 F.3d 1200, 1202-03
(10th Cir. 2006); United States v. Littlesun, 444 F.3d 1196, 1199-1201
(9th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 248, 166 L. Ed. 2d 149
(2006); United States v. Brown, 430 F.3d 942, 944 (8th Cir. 2005); United
States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005), cert. denied,
___ U.S. ___, 126 S. Ct. 1604, 164 L. Ed. 2d 325 (2006); United States v.
Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005); United States v. Roche,
415 F.3d 614, 618 (7th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 671,
163 L. Ed. 2d 541 (2005); United States v. Luciano, 414 F.3d 174, 179
(1st Cir. 2005); United States v. Martinez, 413 F.3d 239, 242-44 (2d
Cir. 2005), cert. denied, ___ U.S. ___, 126 S. Ct. 1086, 163 L. Ed. 2d 902
(2006); see also United States v. Statts, 189 F. AppÂx 237, 238 (4th
Cir. 2006) (per curiam) (not designated for publication); United States v.
Cabbagestalk, 184 F. AppÂx 191, 195-96 (3d Cir. 2006) (not designated for
publication).
Â
[9]
         See
People v. Arbuckle, 150 Cal. Rptr. 778,
781 (Cal. 1978); People v. Vensor, 116 P.3d 1240, 1243 (Colo. Ct. App.
2005), cert. granted, 2005 Colo. LEXIS 715 (Colo. Aug. 8, 2005); State
v. Henderson, 2006 Conn. Super. LEXIS 2395, at *36 n.31 (Conn. Super. Ct. 2004) (not designated for publication); Sivak v. State, 731 P.2d 192, 211 (Idaho 1986); Commonwealth v. Wilcox, 841 N.E.2d 1240, 1248 (Mass. 2006); Holland v. State, 93-DP-00494-SCT, ¶ 48, 705 So. 2d 307, 328 (Miss. 1997); State v. Moore, 2006-Ohio-816, ¶ 8, 2006 Ohio App. LEXIS 732, at *4
(Ohio Ct. App. 2006); McDonald v. Belleque,
138 P.3d 895, 897 (Or. Ct. App.), pet. denied, 143 P.3d 544 (Or. 2006)
(unpublished table decision); Moses v. Commonwealth, 498 S.E.2d
451, 455 (Va. Ct. App. 1998); State v. Peters, 2000 WI App 154, ¶ 11
n.10, 615 N.W.2d 655, 659 n.10 (Wis. Ct. App. 2000), revÂd on other grounds,
2001 WI 74, 628 N.W.2d 797 (Wis. 2001).
Â
[10]Â Â Â Â Â Â Â Â Â Â Â Â See Cockerham v. State, 933 P.2d 537, 539 n.10 (Alaska 1997)
(existence of right of confrontation at sentencing Âis debatableÂ); State v.
Berry, 168 S.W.3d 527, 539-40 (Mo. Ct. App. 2005) (ÂThere is ample doubt
and confusion about the application of the Sixth Amendment in this context.Â); Ledbetter
v. State, 933 P.2d 880, 895 (Okla. Crim. App. 1997) (ÂApplication of the
Confrontation Clause to punishment proceedings in capital cases is not clearÂ);
State v. Stephenson, 195 S.W.3d 574, 590-91 (Tenn. 2006) (noting that
federal courts hold that right of confrontation does not apply at sentencing,
but not expressly taking that position).
[11]
        There are numerous findings which
may affect a juvenileÂs disposition in some manner, but such findings will not
alter the applicable Âpunishment range. See, e.g., Tex. Fam. Code Ann. § 54.04(g) (Vernon
Supp. 2006) (deadly weapon finding), § 54.0406 (Vernon 2002) (finding that
juvenile possessed, used, or exhibited handgun); § 54.041(b) (Vernon Supp.
2006) (restitution), § 54.042 (Vernon Supp. 2006) (license suspension); see
also Harris v. United States, 536 U.S. 545, 568-69, 122 S. Ct. 2406, 2420,
153 L. Ed. 2d 524 (2002) (finding which increases minimum punishment need not
be submitted to jury under Apprendi); Surredin, 165 S.W.3d 751,
753 n.2 (Tex. App.ÂSan Antonio 2005, no pet.) (same).
Â
[12]
           Habitual felony conduct is conduct violating a penal law of the
grade of felony, other than a state jail felony, if:
Â
(1) the
child who engaged in the conduct has at least two previous final adjudications
as having engaged in delinquent conduct violating a penal law of the grade of
felony;
Â
(2) the
second previous final adjudication is for conduct that occurred after the date
the first previous adjudication became final; and
Â
(3) all
appeals relating to the previous adjudications considered under Subdivisions
(1) and (2) have been exhausted.
Â
Tex. Fam. Code Ann. § 51.031(a) (Vernon 2002).
              Â
[13]
        Juvenile social histories were
first expressly required by statute in 1967 for hearings to transfer a juvenile
delinquency proceeding to another county or to waive juvenile court
jurisdiction and transfer the child to an adult criminal court in felony cases
where the child was 15 or older. See Act of May 24, 1967, 60th Leg.,
R.S., ch. 475, § 6(d), 1967 Tex. Gen. Laws 1082, 1083 (repealed 1973). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2827824/ | Filed 8/17/15 P. v. Moreno CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B263263
(Super. Ct. No. 14C-34577)
Plaintiff and Respondent, (San Luis Obispo County)
v.
FRANCISCO GARCIA MORENO, JR.,
Defendant and Appellant.
Francisco Garcia Moreno, Jr. appeals his conviction by plea to grand theft-
1
auto (Pen. Code, § 487, subd. (d)(1)) , entered pursuant to a negotiated plea in which
appellant was sentenced to three years state prison. Appellant was ordered to pay, among
other things, victim restitution (§ 1202.4, subd. (f)), a $900 restitution fine (§ 1202.4,
subd. (b)), a $900 parole revocation fine (§ 1202.45), a $40 court security fee (§ 1465.8),
and a $30 conviction assessment (Gov. Code, § 70373).
We appointed counsel to represent appellant on this appeal. After
examination of the record, counsel filed an opening brief in which no issues were raised.
1
All statutory references are to the Penal Code unless otherwise stated.
On June 5, 2015, we advised appellant that he had 30 days within which to
personally submit any contentions or issues which he wished us to consider. We have
received no response from appellant.
The probation report reflects that appellant was a passenger in a stolen
vehicle and tried to flee during a traffic stop. Appellant admitted using heroin while in
the vehicle.
We have examined the entire record and are satisfied that appellant's
attorney has fully complied with his responsibilities and that no arguable issues exist.
(People v. Wende (1979) 25 Cal. 3d 436, 441; People v. Kelly (2006) 40 Cal. 4th 106, 125-
126.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J
2
Jacquelyn A. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Richard Lennon, for Appellant.
No appearance for Respondent.
3 | 01-03-2023 | 08-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540660/ | *683Opinión concurrente emitida por el
Juez Asociado Señor Martínez Torres,
a la que se une la Jueza Asociada Se-ñora Pabón Chameco.
Concurro con la decisión del Tribunal en que, en este caso, procede aplicar retroactivamente el Art. 2 de la Ley Núm. 243-2011, que enmendó el Art. 3 de la Ley Núm. 266-2004, 4 L.P.R.A. sec. 536a. Sin embargo, opino que es innecesario fundamentar nuestra decisión en el Art. 9 del Código Penal de 2004, 33 L.P.R.A. see. 4637. Al concluir de esa forma, la Opinión del Tribunal colisiona con el texto cristalino del Art. 1 de la Ley Núm. 266, supra, según en-mendado, 4 L.P.R.A. see. 536.
Los hechos del caso que nos ocupa se encuentran ex-puestos correctamente en la Opinión del Tribunal, por lo que no es necesario repetirlos aquí.
H-i
Como muy bien señala la Opinión mayoritaria, el Tribunal de Apelaciones, al interpretar la Ley Núm. 266, supra, antes de que fuera enmendada por la Ley Núm. 243, supra, "tenía razón al interpretar que las personas que hacían alegación de culpabilidad y recibían el beneficio del pro-grama de desvío de la Ley Núm. 177 [-2003], se consideran convictos”. Opinión del Tribunal, pág. 674. Eso implica que tenían que estar inscritos en el Registro de Ofensores Sexuales. Ahora bien, con la nueva ley, claramente las per-sonas que “se encuentren recluidas o participando de algún programa de desvío, tratamiento o rehabilitación de la Ad-ministración de Corrección”, o que posteriormente “sean sometidos a dichos programas”, serán removidas del Regis-tro de Personas Convictas por Delitos Sexuales y Abuso contra Menores tan pronto “el acusado cumpla con las con-diciones impuestas por el Tribunal, y éste ordene el sobre-*684seimiento de la acción criminal ...”. Art. 2 de la Ley Núm. 243, supra. Adviértase que la Asamblea Legislativa no ex-tendió expresamente lo dispuesto en el Art. 2, id., a las personas que ya habían terminado el programa de desvío cuando entró en vigor la ley nueva, como ocurre en este caso.
Para concluir que lo dispuesto en el Art. 2, id., aplica a las personas que terminaron el programa de desvío cuando entró en vigor la ley nueva, lo único que hay que hacer es recurrir al Art. 15 de la Ley Núm. 243, supra. Ese artículo establece que “[e]sta Ley comenzará a regir inmediata-mente después de su aprobación. Los incisos (f) y (g) del Artículo 4 tendrán efecto prospectivo. Las demás disposi-ciones podrán tener efecto retroactivo”. (Enfasis nuestro). Un análisis del artículo transcrito revela que la Asamblea Legislativa otorgó a la Rama Judicial la discreción de de-cidir si las disposiciones de la ley tienen carácter retroactivo. Hemos indicado que la discreción se nutre “de un juicio racional apoyado en la razonabilidad y fundamen-tado en un sentido llano de justicia; no es función al antojo o voluntad de uno, sin tasa ni limitación alguna”. Santa Aponte v. Srio. del Senado, 105 D.P.R. 750, 770 (1977), rei-terado en HIETel v. PRTC, 182 D.P.R. 451, 459 (2011). Asi-mismo, “ ‘no significa poder para actuar en una forma u otra, haciendo abstracción del resto del Derecho’ ”. (Enfasis suprimido). Bco. Popular de P.R. v. Mun. de Aguadilla, 144 D.P.R. 651, 658, (1997). Así, pues, amparándonos en la dis-creción que nos confirió el legislador, es correcta la conclu-sión de la Opinión del Tribunal. No hay razón para tratar distinto al peticionario por el mero hecho de que completó el programa de desvío. Disponer lo contrario sería un abuso de discreción.
No obstante, la Opinión del Tribunal recurre al Art. 9 del Código Penal de 2004, supra, que recoge el principio de favorabilidad. En lo concerniente, el Art. 9(b) del Código Penal, id., indica: “Si durante el término en que la persona está cumpliendo la sentencia entra en vigor una ley más *685benigna en cuanto a la pena o ala medida de seguridad o al modo de ejecutarlas, se aplicará retroactivamente”. (En-fasis nuestro). No obstante, la inclusión de una persona en el Registro de Personas Convictas por Delitos Sexuales y Abuso de Menores no es una pena ni una medida de seguridad. Ni siquiera se cumple una sentencia en este caso, pues el peticionario terminó el programa de desvío.
El Art. 1 de la Ley Núm. 266, supra, indica que “[e]l Registro que se crea mediante esta Ley no tiene un propó-sito punitivo’, es un medio para garantizar la seguridad, protección y bienestar general de los sectores más vulnera-bles y merecedores de protección de nuestra sociedad”. (Enfasis nuestro). Incluso, en la Exposición de Motivos de la Ley Núm. 243, supra, pág. 2, el legislador reitera que “nuestro Registro, al igual que los Registros establecidos en todos los estados de los Estados Unidos, no tiene un propósito punitivo’, es un medio por el cual el Estado puede velar por la seguridad, protección y bienestar general”. (Enfasis nuestro). Si bien la ley hace referencia constante-mente al término “convicto”, eso no es óbice para concluir que esa ley es penal. Para un análisis de derecho compa-rado con otras jurisdicciones en que existen leyes que esta-blecen registros similares, véase J. Ramírez Vélez, El Re-gistro de Personas Convictas por Delitos Sexuales y Abuso contra Menores: ¿seguridad o castigo?, 42 (Núm. 2) Rev. Jur. U.I.P.R. 337 (2008).
Por su parte, tampoco es correcto afirmar que la Ley Núm. 266, supra, constituye una medida de seguridad. Como bien indica la Opinión del Tribunal, pág. 677, el Art. 91 del Código Penal, 33 L.P.R.A. sec. 4719, no establece que la inscripción en el Registro de Personas Convictas por De-litos Sexuales y Abuso de Menores sea una medida de seguridad. Tampoco es esa la intención legislativa.
El citado Art. 91 del Código Penal permite que el tribunal conserve jurisdicción sobre una persona que resulte no culpable por incapacidad mental o trastorno mental tran-*686sitorio, y la interne en una institución adecuada para su tratamiento.(1) Por su parte, el Art. 94 del Código Penal de 2004, 33 L.P.R.A. see. 4722, establece que no “podrá impo-nerse medida de seguridad sin previo examen e informe siquiátrico o sicológico de la persona, realizado por un si-quiatra o sicólogo clínico designado por el tribunal y un informe social realizado por un oficial probatorio”.
De igual forma, el Art. 96 del Código Penal de 2004, 33 L.P.R.A. sec. 4724, impone al tribunal el deber de pronun-ciarse sobre el mantenimiento, la modificación o la cesa-ción de la medida de seguridad impuesta.
Una lectura integrada de los artículos citados revela que la medida de seguridad a la que hace referencia cons-tantemente el Código Penal es la medida de internación por incapacidad mental, trastorno mental transitorio o inimputabilidad. Véanse, por ejemplo: Arts. 2, 3, 4 y 5 del Código Penal de 2004, 33 L.P.R.A. secs. 4630 — 4633. A una conclusión idéntica arriban los expertos en la materia. J.P. Mañalich R., El concepto de delito bajo el Código Penal de Puerto Rico, 79 (Núm. 2) Rev. Jur. U.P.R. 1115, 1126-1127 (2010); D. Nevares-Muñiz, Código Penal de Puerto Rico, 5ta ed., San Juan, Inst, para el Desarrollo del Derecho, 2012, págs. 129-130. Por ello, no cabe hablar de la inscrip-ción en el registro como una medida de seguridad. Aquí no se requiere evaluación síquica o sicológica del obligado a registrarse.
Recurrir en este caso al Art. 9 del Código Penal, supra, tendrá como consecuencia la proliferación de litigios injustificados. Por ejemplo, si determinamos que la inscrip-*687ción de una persona en el registro es una medida de segu-ridad, ¿será necesaria la preparación de un informe presen-tencia conforme al Art. 94 del Código Penal, supra, que discuta la conveniencia de la inscripción en el registro? Por otro lado, ¿tendrá el Tribunal que revisar anualmente el mantenimiento, la modificación o la cesación de la medida de seguridad impuesta, a saber, la inscripción en el regis-tro, según requiere el Art. 96 del Código Penal del 2004, supra? ¿No tropieza la decisión que hoy se emite con la obligación que impone al tribunal el Art. 4 de la ley Núm. 266, supra, de ordenar al Ministerio Público la inscripción en el registro de ofensores?
El Art. 92 del Código Penal de 2004, 33 L.P.R.A. sec. 4720, establecía que debe existir proporcionalidad entre la medida de seguridad y la pena del hecho cometido. Con la opinión de la mayoría en este caso: ¿Debe existir proporción entre el tiempo en que una persona está inscrita en el Re-gistro y la pena del delito cometido? ¿No sería eso contrario a la Ley Núm. 266, supra, según enmendada? Todas esas interrogantes quedan en suspenso con la Opinión que emite este Foro.
El Tribunal intenta despachar estas preguntas en una nota al calce en la que expresa su impresión de que los Art. 92 al 96 del Código Penal, supra, no aplican. Si el Tribunal reconoce eso, ¿de dónde surge, entonces, que la inscripción en el Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores es una medida de seguridad? Pa-rece que surge del mismo sitio que la aplicación del Art. 9 del Código Penal, supra: de la preferencia personal de una mayoría de los Jueces de este Tribunal y no de la voluntad legislativa.
I — I I — 1
Por los fundamentos antes expuestos, acogería el escrito presentado como una petición de certiorari, expediría el *688auto y revocaría la decisión del Tribunal de Apelaciones. La Asamblea Legislativa nos concedió discreción para apli-car retroactivamente el Art. 2 de la Ley Núm. 243, supra. En el ejercicio de esa discreción, procede eliminar al señor Hernández García del Registro de Personas Convictas por Delitos Sexuales y Abuso contra Menores. Para arribar a ese resultado no es necesario recurrir al principio de favo-rabilidad incluido en el Art. 9 del Código Penal, supra.
Con la aprobación del nuevo Código Penal de 2012, Ley Núm. 146-2012, la regulación de las medidas de seguridad sufrió cambios sustantivos. El nuevo Art. 81 del Código Penal de 2012, equivalente al Art. 91 del Código de 2004, 33 L.P.R.A. sec. 4719, no hace alusión al trastorno penal transitorio como razón para declarar a una persona no culpable. Por su parte, el Art. 92 del Código Penal de 2004, 33 L.P.R.A. sec. 4720, fue suprimido del nuevo Código Penal, por lo que ahora la medida de seguridad no tiene que ser proporcional a la pena del hecho cometido. Finalmente, el nuevo Art. 85 del Código Penal de 2012 otorga discreción al tribunal a la hora de determinar si la medida de seguridad debe cesar. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3224236/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
GSC Construction, Inc. ) ASBCA Nos. 59644, 59956, 60069
) 60070,60112,60113
)
Under Contract No. W912HN-10-D-0035 )
APPEARANCE FOR THE APPELLANT: James S. DelSordo, Esq.
Argus Legal, LLC
Manassas, VA
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Brian P. Nutter, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Charleston
ORDER OF DISMISSAL
These appeals have been settled. By email dated 17 June 2016, appellant moved
to dismiss these appeals with prejudice. Appellant's motion is granted.
Wherefore, ASBCA Nos. 59644, 59956, 60069, 60070, 60112, and 60113 are
hereby dismissed with prejudice.
\~~
Dated: 21 June 2016
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA Nos. 59644, 59956, 60069
60070, 60112, 60113, Appeals of GSC Construction, Inc., rendered in conformance with
the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/127597/ | 537 U.S. 1223
CARTERv.UNITED STATES.
No. 02-8553.
Supreme Court of United States.
February 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 45 Fed. Appx. 807. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/127603/ | 537 U.S. 1224
DESIR ET AL.v.HALL, SUPERINTENDENT, OLD COLONY CORRECTIONAL CENTER, ET AL.
No. 02-8590.
Supreme Court of United States.
February 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.
2
C. A. 1st Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/127640/ | 537 U.S. 1226
MOORE ET AL.v.DETROIT SCHOOL REFORM BOARD ET AL.
No. 02-711.
Supreme Court of United States.
February 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
2
C. A. 6th Cir. Motion of Rosa L. Parks et al. for leave to file a brief as amici curiae granted. Certiorari denied. Reported below: 293 F. 3d 352. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4538764/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4404-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BASSEM Z. BESHAY,
Defendant-Appellant.
_______________________
Submitted May 13, 2020 – Decided June 4, 2020
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Municipal Appeal No. MA-
2019-006.
Fusco & Macaluso LLC, attorneys for appellant (Amie
E. DiCola, on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Bassem Z. Beshay appeals from a May 1, 2019 judgment of
conviction for soliciting business, N.J.S.A. 32:1-146.6(1), and criminal trespass,
N.J.S.A. 2C:18-3(b), resulting from his arrest at Newark Liberty International
Airport on October 13, 2018. We affirm.
Defendant was charged with violating N.J.S.A. 32:1-146.6, which states:
"(1) No person, unless duly authorized by the Port Authority, shall, in or upon
any area, platform, stairway, station, waiting room or any other appurtenance of
an air . . . terminal, owned or operated by the Port Authority, . . . (b) solicit any
business or trade . . . ." He was also charged with violating N.J.S.A. 2C:18-3(b),
which states: "Defiant trespasser. A person commits a petty disorderly persons
offense if, knowing that he is not licensed or privileged to do so, he enters or
remains in any place as to which notice against trespass is given by: (1) Actual
communication to the actor."
A Newark Municipal Court judge, who attempted to take defendant's
guilty plea, first addressed this matter in December 2018. However, after
considering defendant's testimony and that of the arresting officer , the judge
rejected defendant's plea because defendant's testimony was not "honest and
truthful."
A-4404-18T4
2
A trial ensued following the failed plea. The State adduced testimony
from a Port Authority police sergeant who authenticated three prior warnings
issued to defendant for criminal trespass dated March 30 and November 16,
2017 and October 10, 2018. The State also presented testimony from the
arresting officer who stated she saw defendant ask four or five passengers if they
needed a ride before she arrested him for unauthorized solicitation of business
and criminal trespass. Defendant adduced testimony from a fact witness who
claimed to be with defendant on the day of his arrest, which contradicted the
officer's claims that defendant was soliciting business. Defendant was
convicted, fined, and sentenced to a period of community service.
Defendant filed a de novo appeal in the Law Division and argued the
municipal court judge should have recused himself, pursuant to Rule 1:12-1(d)
and (g), because he expressed an opinion regarding defendant's veracity during
the plea proceedings, which affected the outcome. Defendant also challenged
the convictions on grounds the State failed to meet the burden of proof.
The trial judge rejected defendant's arguments and concluded recusal was
unwarranted because the municipal court judge had the obligation to
independently evaluate the facts as part of deciding whether to accept the plea.
The trial judge also found there was no indication the municipal court judge was
A-4404-18T4
3
biased, had an interest in the outcome of the case beyond its adjudication, or
expressed his opinion on the matter in any context other than in the proceedings.
Regarding the charges, defendant argued the arresting officer's testimony
was not credible because she gave differing accounts when she testified at the
plea proceeding and later at the trial regarding the number of travelers she saw
defendant solicit on the day of his arrest. Defendant also argued the arresting
officer's testimony was unreliable because she did not recall that defendant's fact
witness was with defendant and whether defendant was inside his vehicle or
outside of it soliciting business when he was arrested.
The trial judge found defendant guilty of the charges. The judge rejected
defendant's challenges to the arresting officer's testimony, finding it was
possible she gave differing testimony yet remained credible because her
testimony at the plea proceeding was "spontaneous and unprepared" as she was
called to testify only after defendant struggled to give a factual basis. The judge
found the discrepancy in the officer's recollection of the number of people
defendant solicited in the airport irrelevant because the statute only required one
violation to establish his guilt.
The judge concluded defendant was guilty of defiant trespass because the
three warnings issued to him prior to his arrest advised he would be arrested if
A-4404-18T4
4
he failed to comply, which proved he knew he was unauthorized to solicit
business at the airport. The judge found defendant acknowledged receipt of the
March 2017 warning by signing it and the warning contained his social security
and driver's license numbers, address, and a photocopy of his driver's license.
Although defendant refused to sign the November 2017 and October 2018
warnings, both notices contained the same data as the March 2017 notice and
the judge concluded the testimony of the State's witness proved defendant was
served with the warnings.
On this appeal, defendant raises the following points:
POINT ONE – THE COURT SHOULD REVERSE
THE [TRIAL JUDGE'S] DENIAL OF MR. BEHSAY'S
MUNICIPAL APPEAL BECAUSE THE
[MUNICIPAL COURT JUDGE] WAS REQUIRED TO
RECUSE HIMSELF[ ]ON JANUARY 16, 2019 WHEN
MR. BESHAY'S MATTER CAME BEFORE HIM
FOR TRIAL, PURSUANT TO NEW JERSEY COURT
RULE 1:12-1(d) and (g).
POINT TWO – THE COURT SHOULD REVERSE
THE [LAW DIVISION JUDGE'S] DENIAL OF MR.
BEHSAY'S MUNICIPAL APPEAL BECAUSE THE
STATE FAILED TO MEET ITS BURDEN OF PROOF
OF BEYOND A REASONABLE DOUBT WITH
REGARD TO THE CHARGES OF CRIMINAL
TRESPASS AND SOLICITATION FOR BUSINESS.
We review the Law Division judge's decision to determine whether there
is sufficient credible evidence in the record to support it. State v. Johnson, 42
A-4404-18T4
5
N.J. 146, 162 (1964). Unlike the trial court, which conducts a trial de novo on
the record pursuant to Rule 3:23-8(a)(2), we do not independently assess the
evidence. State v. Locurto, 157 N.J. 463, 471 (1999). Under the two-court rule,
only "a very obvious and exceptional showing of error" will support setting aside
the Law Division and municipal court's "concurrent findings of facts . . . ." Id.
at 474. When issues on appeal turn on purely legal determinations, our review
is plenary. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). "We
do not weigh the evidence, assess the credibility of witnesses, or make
conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We
defer to the trial court's credibility findings. State v. Cerefice, 335 N.J. Super.
374, 383 (App. Div. 2000).
Having considered defendant's arguments in light of the credible evidence
in the record, we conclude they are without merit. R. 2:11-3(e)(2). As the trial
judge noted, there was no basis either in fact or law for the municipal court judge
to recuse. The municipal court judge's role in deciding whether to accept or
reject defendant's plea required the judge to "evaluate the facts, both admitted
and debated, apply those facts that can be established to the law, and then test
the plea agreement against the facts, the law, and the range of permissible
sentences under the Code." State v. Madan, 366 N.J. Super. 98, 114 (App. Div.
A-4404-18T4
6
2004). Recusal was not mandated merely because the municipal court judge
articulated his reasons for rejecting defendant's plea.
Defendant also contends even though the trial judge's review was de novo,
he relied on the credibility findings of the municipal court judge. The record
belies this claim because defendant did not testify at trial and his plea testimony
was irrelevant at trial. Moreover, the trial judge adjudicated the matter
independent of the municipal court judge's findings and concluded the State met
the statutory elements for unauthorized solicitation at a Port Authority air
terminal and defiant trespass. The trial judge's findings regarding the elements
of the statutory offenses are unassailable and defendant's arguments to the
contrary are unpersuasive.
Affirmed.
A-4404-18T4
7 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2900537/ | Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
LESSIE GRIFFIN,)
No. 08-02-00335-CV
)
Appellant,)
Appeal from
)
v.)
Count Court at Law
)
STEPHEN RANDOLPH GRIFFIN,)
of Midland County, Texas
)
Appellee.)
(TC# FM-32,845)
MEMORANDUM OPINION
Pending before the Court is the joint motion of Appellant, Lessie Griffin, and Appellee,
Stephen Randolph Griffin, to dismiss this appeal pursuant to Tex.R.App.P. 42.1, which states that:
(a) On Motion or By Agreement. The appellate court may dispose of an appeal as
follows:
(1) On Motion of Appellant. In accordance with a motion of appellant, the
court may dismiss the appeal or affirm the appealed judgment or order unless
disposition would prevent a party from seeking relief to which it would
otherwise be entitled.
(2) By Agreement. In accordance with an agreement signed by the parties or
their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties' agreements;
(B) set aside the trial court's judgment without regard to the merits
and remand the case to the trial court for rendition of judgment in
accordance with the agreements; or
(C) abate the appeal and permit proceedings in the trial court to
effectuate the agreement.
By their motion, Appellant and Appellees voluntarily request dismissal of the appeal because
the parties have settled all matters in controversy. The motion is granted and the appeal is dismissed
with prejudice. The motion to dismiss does not specify an agreement regarding the payment of costs.
Absent an agreement, costs are taxed against Appellant. See Tex.R.App.P. 42.1(d)(absent agreement
of the parties, the court will tax costs against the appellant).
October 16, 2003
ANN CRAWFORD McCLURE, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/127683/ | 537 U.S. 1229
JANNEHv.GRIFFEN ET AL., 534 U. S. 839
No. 00-9978.
Supreme Court of United States.
February 24, 2003.
1
APPLICATION TO FILE PETITION.
2
Motion for leave to file petitions for rehearing denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3444478/ | Affirming.
The sole question involved in this appeal is the validity of the residuary clause of the will of Hanna Christie Violett, which was holographic and written and subscribed by her on August 27, 1920, she having died in April, 1924, a resident of Owen county, following which her will was duly probated by the county court of that county. Testatrix had no children and left surviving her no heirs or distributees, except her husband, and some nieces and nephews, who were the surviving children of a deceased sister. She made some special devises to them and other persons, and then wrote the residuary clause in contest, which is in these words: "Then what money is left I want it to go to the orphans' homes of Kentucky."
By an amended petition the Louisville Baptist Orphans' Home was made a party and it filed its separate answer and alleged that the testatrix when she made her will had it in mind and, therefore, intended for it to receive the residuary portion of her estate disposed of by the residuary clause of her will. The depositions of two members of the local Baptist congregation at Campbellsburg, Kentucky, where testatrix resided, were taken, and they proved that testatrix was a devout member of that congregation and that she had stated prior to her death and about the time the will was written that she intended to devise her property to the Baptist Orphans' Home. Upon submission of the cause the court adjudged "That there is no ambiguity in the will of Hanna Christie Violett, and that the administrator with the will annexed shall pay the residue of the estate of said Hanna Christie Violett, to all of the existing orphans' homes of the state of Kentucky at the date of death of testatrix, to-wit, April, 1924," and to reverse that judgment plaintiffs, composed of the administrator with the will annexed and the nieces and nephews of testatrix, prosecute this appeal.
It is insisted that the inserted residuary clause is void for uncertainty and for that reason it should be held that the testatrix died intestate as to all the property to which it applied, but we cannot agree with that contention. It will be observed that there is no intricate question here as to the uncertainty of beneficiaries in a charitable trust, nor any uncertainty as to the trustees or administrators *Page 61
of the trust, such as was involved in the cases of Kratz v. Slaughter's Executor, 185 Ky. 256; Goldberg v. Home Missions of the Presbyterian Church in the United States, 197 Ky. 724; State Bank Trust Company v. Patridge, 198 Ky. 403, and other like ones. Nor is there any indefiniteness as to the object and purposes of the devise. We are, therefore, relieved of the task of discussing any such questions, or of determining the applicable law to the facts presenting any such questions for the manifest reason that there exist here no such facts. The involved language is short, pointed and unambiguous. It specifically and clearly designates the objects of the devise, which are: "The orphans' homes of Kentucky," be they few or many. The beneficiaries of the charity are the occupants of those homes. Each of such homes within the state at the time of the death of the testatrix at once became vested with itspro rata share of the total devise, be it small or large; and being the administrator or trustee of its portion of the devise it was and is its duty to use it for the benefit of its beneficiaries who are the inmates of that particular home.
Nothing appears in the language of the testatrix in framing her residuary clause, nor in any other part of the will, to indicate that the shares of each orphans' home should be measured by the number of occupants, or that the division should be made in any other manner than equally among all orphans' homes in the Commonwealth, and the only fact, therefore, furnishing any support for the argument that the devise here is invalid for uncertainty does not arise because of any ambiguity in the will itself, but on the collateral facts that there are an indefinite number of orphans' homes in the Commonwealth and the consequent difficulty in ascertaining them; but we are cited to no case, nor have we been able to find one, where such an objection rendered the will invalid on the ground of indefiniteness. Suppose, by way of illustration, that a testator should devise his property equally and percapita among all of his surviving children, grandchildren and great-grandchildren, could it be successfully contended that the devise was void because there was a large number of devisees composing the designated classes and they were scattered over a broad territory and difficult of location? We think not, and the instant case differs nowise from the supposed one. We, therefore, *Page 62
conclude that the contention of appellants is without merit and can not be sustained.
We also concur in the judgment of the trial court that this is not a case wherein extrinsic testimony is admissible for the purpose of ascertaining the intention of the testatrix. Such testimony is never admissible except to explain certain classes of indefinite expressions contained in the will, as will be seen by a reference to the cases of Eichorn v. Morat, 175 Ky. 80; Parrott v. Crosby, 179 Ky. 658, and others cited in those opinions; or to remove a latent ambiguity, as is shown in the cases of Mitchell v. Walker, 17 Barb. M. 66; Day v. Asher, 141 Ky. 468, and Virginia I. C. C. Co. v. Combs, 165 Ky. 456. Since, therefore, there is no ambiguity in the residuary clause here involved, we need not enter into a discussion of the established rules as to when such testimony may or may not be heard for it is a universal principle that where there is no ambiguity arising from the language of the will as to the subjects of devise, or the objects thereof, extrinsic testimony is not admissible for the purpose of showing that it was the intention of the testator to refer to a different object than the one named in the will, or to point out a particular member or members of a class mentioned in the will as the one or ones exclusively intended by the testator as his beneficiaries.
It is, therefore, clear that the judgment appealed from was and is proper, and it is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444480/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 620
Reversing on the original appeal and affirming on the cross-appeal.
The appellant, Kentucky Hydro-Electric Company, is a Delaware corporation which has constructed and is now operating a hydro-electric plant on the Dix river near its junction with the Kentucky river. It transmits the electricity there generated over a transmission line which runs from the plant through Mercer and other counties until it reaches the Ohio river near Louisville in Jefferson county. There the transmission line crosses the Ohio river into Indiana. The power thus transmitted is sold to certain local public utility companies, such as the Kentucky Utilities Company in Shelbyville, and the Louisville Gas Electric Company in Louisville, which serve communities located along the transmission line. These local utility companies, in turn, sell the power thus bought to the communities they serve. The appellant, however, does not undertake to supply service to all individuals located along its transmission lines who may apply for such service. The transmission line consists of a series of steel towers placed at intervals of not less than six hundred feet, to the top of which on insulators are strung the wires which carry the current. Those towers are constructed of interchangeable parts so as to be easily repaired in the event of any part of them breaking or getting out of order. The power plant is equipped with circuit breakers which automatically cause the current, which courses through the wires, to be cut off the instant any wire breaks and grounds. *Page 621
In securing its right of way for its transmission line through the country from its plant to the Ohio river, the appellant, at least so far as Mercer county is concerned, was able to do so by private arrangements made with all the property owners through whose land the line passes with the exception of the appellee, C.S. Woodard, who owns a farm of 480 acres. Being unable to agree with him, the appellant instituted, in the Mercer county court, this proceeding to condemn a right of way or easement through appellee's farm for its transmission line. The nature of the easement thus sought to be condemned is accurately and concisely stated in one of the instructions of the circuit court to the jury, thus:
". . . (The) easement consists of the following rights: (a) To construct, operate and maintain at the points described in the evidence seven steel towers, each of which consists of four supports placed in the ground interlaced together for strength, and which shall occupy a space on the ground and in the air of not greater than 20 feet square. Said towers shall be located at intervals of not less than 600 feet. On said towers there shall be constructed cross arms and on the cross arms wires shall be strung from tower to tower which shall transmit electrical energy. All such wires shall be at least 20 feet above the ground at the nearest point and the aggregate width of all lines shall not exceed 25 feet.
"(b) . . . To trim or remove any and all trees on the lands of defendants (appellee's) within 50 feet of the center line of said transmission lines which might interfere with the construction, operation, repair, renewal or maintenance thereof.
"(c) . . . To prevent the landowner from erecting any building on his lands within a space of 25 feet on either side of said transmission lines.
"(d.) . . . To go upon the lands of the defendant for the construction, operation, repair and maintenance of said lines, but in exercising said right, it cannot go upon any part of the lands of the defendant except within a space of 12 1/2 feet on either side of the center line of said transmission line right of way described in the evidence.
"(f) The defendants retain the ownership, use, occupancy and enjoyment of the land not actually *Page 622
occupied by the towers of the plaintiff, to the extent that such ownership, use, occupancy and enjoyment may not interfere with the exercise of the rights of the plaintiff described in this instruction 1."
The appellant is to pay all damages that may be caused to fences, crops, animals and other property of the appellees, including the land not actually occupied by the towers in constructing, operating, repairing, maintaining and inspecting said line.
The transmission line (which has now been constructed) approximately bisects the appellees' farm, running through it for a distance of 5,821 1/2 feet. For a portion of its distance it runs along a private road on the side opposite to that on which appellees' house is located. It also runs between the appellees' house and their barn. The appellees in the county court took proper steps to question the right of appellant to condemn the right of way in question, but their efforts there in this regard were fruitless. The commissioners appointed by the county court reported that the land actually proposed to be taken by the appellant was worth $500.00 and the resulting damages to the rest of the farm was worth $450.00. On exceptions by both parties to this report the case was tried in the county court, where the jury found a verdict for the appellees in the sum of $12,000.00. The appellant paid this sum to the appellees and then prosecuted an appeal from the county court judgment to the circuit court but took possession of the easement it sought to condemn and constructed its transmission line. In the circuit court the appellees filed an amended answer to the effect that the judgment entered in the county court had been accepted by the appellant and paid; that the appellees had accepted that payment in full satisfaction of the judgment, and appellant had taken possession of the easement and constructed its line, by reason of all of which there was no further issue between the parties to be litigated. A motion to dismiss the appeal, based on the same state of facts, was also filed by appellees. This motion was overruled and a demurrer was sustained to the amended answer. On the trial, the jury found for the appellees in the sum of $10,000.00, of which $1,500.00 was for the land actually taken by appellant, and $8,500.00 for the resulting damages to the remainder of the farm. The judgment of the circuit court *Page 623
entered on this verdict provided that appellant should recover back from the appellees the $2,000.00 excess paid under the county court judgment but did not award appellant any interest on this sum. From this last judgment, appellant prosecutes this appeal, and the appellees prosecute a cross-appeal.
We will first dispose of the cross-appeal. Appellees insist, first, that the appellant, due to the character of its business, has no authority to condemn private property for such a transmission line as it has built here, and that if section 1599b-1, et seq., of the statutes give appellant such authority, these sections are unconstitutional. Secondly, that as appellant had paid to the appellees the amount of the county court judgment and had taken possession of the easement sought, it had no right to prosecute the appeal it did to the Mercer circuit court or this appeal to this court.
With regard to the first contention, appellees are now clearly estopped to question the right of appellant to condemn the easement in question. They took no appeal from the county court judgment of condemnation, but, on the contrary, accepted the money paid them by appellant in satisfaction of that judgment. Further, in the circuit court, appellees took the position, as indeed they do in this court, that there was no issue pending between them and appellant as the appellant had paid them the county court judgment, had taken possession of the easement it sought and they had accepted the payment in full satisfaction of the controversy. In the case of Elizabethtown L. B. S. R. Co. v. Catlettsburg Water Co.,110 Ky. 175, 61 S.W. 47, the appellee was questioning the right of the appellant to condemn a part of appellee's property. The record showed that the appellee took no appeal from the county court judgment of condemnation but, on the contrary, withdrew from court, by an agreed order, the amount of the judgment which the appellant had paid in. No writ of possession was issued in that case, but appellant took possession of the strip of land condemned and built its structures upon it. We held that the transaction was incapable of any other construction than that the appellee agreed to take the money and let appellant take the property, for which reason appellee was thereafter estopped to question the right of appellant to condemn the land in question. In the case before us, it is true that the appellant did not pay the *Page 624
judgment into court but directly to the appellees. It did take, with the acquiescence of the appellees, possession of the land without a writ of possession. The appellees accepted the payment thus made them, as they say in their amended answer and motion to dismiss the appeal in the circuit court, in full satisfaction of appellant's liability to them. They took no appeal to the circuit court. The fact that this money was not paid into court by appellant and withdrawn by appellees, as was done in the Catlettsburg Water Company case, supra, does not make this case different in legal principle from that case, since the payment into court and the withdrawal by the water company in the Catlettsburg case by an agreed order is not different in principle from a payment directly to the appellees in this case. The essence of the estoppel or waiver adjudged in the Catlettsburg Water Company case, supra, does not rest on the method by which the payment is made to the landowner, but rather on the fact that the landowner accepts the payment made to him, either directly or indirectly, by a payment into and a withdrawal from court of the amount, and then prosecutes no appeal to the circuit court from the county court. It is plain, then, that appellees may not blow both hot and cold, and having failed to take an appeal from the Mercer county court judgment, but, on the contrary, having accepted and retained the amount of the Mercer county court judgment in full satisfaction of appellant's liability to them, they are now estopped to question the right of appellant to condemn the easement here sought.
As to the second ground on which the cross-appeal is based, it was distinctly held in the case of Madisonville H. E. R. Co. v. Ross, 126 Ky. 138, 103 S.W. 330, construing section 839 of the statutes, that a condemnor clearly has the right to appeal from an adverse verdict, and yet, pending the appeal, take possession of the property, provided it pays into court for the benefit of the owner, or to the owner, the amount of the verdict and costs. As pointed out in Long Fork Ry. Co. v. Sizemore, 184 Ky. 54, 211 S.W. 193, if the condemnor elects to pay the verdict and costs into court and to take possession of the land sought to be condemned, it is not thereafter deprived of its right of appeal; but the condemnor may not thereafter, if the verdict on appeal is greater than that appealed from, elect not to take the property. In this Sizemore case it was further pointed out that the right *Page 625
to take possession before final determination and payment of the damages may be exercised by the condemnor only where the owner waives his constitutional right of actual previous payment to him, or where the deposit in court amounts to a tender to him, thus making it perfectly plain that the right to an appeal, despite the fact that payment has been made to the property owner, does not depend on whether the payment was made directly, as the Constitution requires, before the corporation can take possession of the strip, or into court under such circumstances showing a waiver on the part of the owner of an actual previous payment to him, or showing that such payment into court amounts to a tender to the landowner. The statutes plainly intended that the parties to condemnation proceedings should have the right of appeal and that the work should not be held up pending such an appeal. But under the Constitution, unless payment or tender be made to the landowner, the condemnor has no right to take possession of the land condemned. Hence any other construction than this court has put on the statute would result either in depriving the parties of an appeal or in holding up the work pending the appeal. The purpose and policy of the statute is plainly otherwise. The appellant made its election with regard to taking the property here involved when it paid the verdict to the appellees and took possession of the easement. It is thereafter confined on appeal to the sole question of how much it will have to pay for the land. Section 1599b-2 of the statutes prescribes the method of condemnation in cases like the one before us, and it adopts by reference the method laid down in sections 835-840, inclusive, of the statutes. Therefore, it is plain that, under the Ross and Sizemore cases, supra, the appellant did have the right to prosecute the appeal it did to the circuit court, and does have the right to prosecute this appeal to have determined what amount it must pay for the easement it has taken.
We conclude, therefore, that, on the cross-appeal, the judgment must be affirmed.
On the original appeal five grounds are urged for reversal: (a) Error in the exclusion of offered testimony; (b) error in the admission of testimony offered by appellees; (c) error in instructions; (d) excessiveness of the verdict; and (e) error in disallowing appellant interest on $2,000.00, being the difference between the *Page 626
amount of the verdict in the county court paid to the appellees by appellant, and the $10,000.00 verdict of the circuit court. Considering these grounds in their order:
(a) Appellant first offered to show that the land of the appellees through which its easement runs was not better in quality and value than the average of all the other lands in Mercer county through which its transmission line passes, and then offered to prove what the acquisition of the right of way through Mercer county, excepting, of course, appellees' land, had cost it. It will be noted that appellant did not undertake to prove simply the value of property similar to and in the vicinity of that of the appellees. Such testimony is admissible under the many opinions of this court, some of which are collected in the recent case of Big Sandy K. R. R. Co. v. Stafford, 207 Ky. 272, 268 S.W. 1071, on the theory that it tends to establish the value of the property sought to be condemned. But even this rule requires that the similarity in all essential particulars must be such as to raise a logical inference that practically the same elements of value are present in both cases. West Kentucky Coal Co. v. Dyer, 161 Ky. 407, 170 S.W. 967; 22 C. J. 761. What appellant here undertook to do was to prove what it had paid for a right of way through farms equal in quality and value to that of appellant. Now, it is obvious that the purchase price of such a right of way necessarily included the two elements of damage involved in this litigation; that is, the value of the land actually taken for the easement and the damage resulting to the rest of the land by reason of the taking of the easement. There is a total lack of proof in this case that appellant's transmission line, as it runs through the other farms in Mercer county, affects them in the same fashion as it does the farm of the appellees. For instance, as stated, appellant's line bisects appellees' farm, enters it near a spring, and, for a portion of its length, runs along a private right of way on the side opposite to that on which appellees' residence abuts; it crosses a road and a telephone wire connecting appellees' residence with the barn and the outside world; one of the towers is erected near the front of appellees' dwelling; and appellees' privacy in their home is in some measure curtailed by appellant's right of patrol. All of these matters may have a tendency to affect the market value of that part of appellees' farm not actually taken *Page 627
by appellant for its easement in the eyes of prospective purchasers. On the other hand, for aught that appears in this record, this transmission line may run through the other farms along a fence row, or across their back ends, out of sight of the residences and where its erection can interfere practically not at all with any use to which the owners may wish to put their farms. Thus it is clear that appellant failed to show such similarity in resulting damage between appellees' farm and the other farms of Mercer county through which its transmission line runs as to raise a logical inference that practically the same elements of value were present in both cases. What appellant paid for its right of way included compensation not only for such land as was taken but also such resulting damage as the rest of the property incurred. As this second factor must necessarily have been a variable one in the case of each farm, appellant failed to bring itself within the rule establishing the competency of testimony covering the value of similar tracts of land in condemnation suits. Indeed, we doubt if appellant could have gone into questions of similarity where the farms through which it ran were so many and the factor of resulting damage different in each case. It would have taken the trial too far afield in collateral matters in the determination of the question of similarity. But that question is not before us and we need not decide it here. Appellant has cited us to the note in 43 L.R.A. (N.S.) 985, collecting the authorities pro and con on the question whether evidence of what the condemnor has paid others for land substantially similar to the land in question is admissible in condemnation suits. But, as the annotator says in his note: "The reader will recognize that cases excluding the evidence simply on the ground that the properties were dissimilar, do not reach our question," and since, as we have seen, the appellant did not establish similarity of conditions here, if it be permissible in a case like the one before us for it to do so, the authorities thus collected do not bear upon our problem.
For these reasons, then, we do not believe the trial court committed any error in excluding the evidence offered by appellant, the exclusion of which appellant relies upon for reversal.
(b) It is next contended that the court erroneously permitted eleven members of the jury, which tried this case in the county court, to testify for appellees as expert *Page 628
witnesses on value on the trial in the circuit court. The argument is that the statute provides for a trial de novo in the circuit court; that it was impossible for the appellant to adequately cross-examine these eleven witnesses without eliciting from them the fact that they had been jurors in this case in the county court; that, necessarily, the jury in the circuit court would know, when this fact was brought out, what the verdict in the county court had been, and so would be influenced in the finding of their verdict by what their predecessors in the county court had done, and thus would be destroyed the provisions of the statutes providing for a trialde novo.
Section 605 of the Civil Code provides that, subject to the exceptions and modifications contained in section 606, none of which are applicable here, every person is competent to testify for himself or another unless he be found by the court incapable of understanding the facts concerning which his testimony is offered. Section 607 of the same Code provides that all other objections to the witnesses other than those referred to in section 606 shall go to their credit alone and be weighed by the jury or tribunal to which their evidence is offered.
Under these sections of the Code, appellees' witnesses here in question were competent. It may be that appellant would, in some measure, be circumscribed on its cross-examination if it feared that knowledge on the part of the circuit court jury of the fact that the witness had been a member of the county court jury would influence the former's verdict. But the provision of a trial de novo does not destroy the competency of witnesses. Although the authorities are not in accord on the proposition whether or not a juror in a pending case can be called from the box to testify in such case and then allowed to return to the box — See Wigmore on Evidence, vol. III, section 1910 — they are overwhelmingly in accord on the proposition that service as juror on a former trial of a cause does not disqualify one as a witness on a subsequent trial. Thus in Hughes v. Chicago, St. P. M. O. R. Co., 126 Wis. 525, a juror on a former trial was permitted in a subsequent trial to testify as to the condition of a railroad crossing on which the plaintiff was injured, which condition he had observed when taken, as a juror, to that place to view the premises. A like result was reached in Cramer v. City of Burlington, 42 Iowa 315. In Hull v. Seaboard Air Line Ry., 75 S.C. 278, *Page 629
10 L.R.A. (N.S.) 1213, a juror in a companion case to the one on trial was permitted to testify about the condition of a trestle he had learned on the trial in which he was juror. See also People v. Ostrander, 110 Mich. 60; Woolfolk v. State,85 Ga. 69; Savannah, etc. Ry. v. Quo, 40 L.R.A. 483 (Ga.). In all of those cases, the opposing side was somewhat handicapped, in its cross-examination of such witness, by the fact that it was desirable not to influence the present jury by knowledge of what a former jury had taken into consideration. Nevertheless, it was held that the competency of the witnesses was not thus destroyed. On the one hand, a party is entitled to the benefit of the testimony of all competent witnesses. On the other hand, the adverse party is entitled to a new trial as free from bias as can be given him. Again do we face a balancing of considerations. But in the determination of the truth, it is better that all competent evidence be heard than that some of it be suppressed because, forsooth, cross-examination may be handicapped for fear of a possible bias which it is the jury's duty to lay aside. The latter consideration cannot outweigh the former. We are of opinion, therefore, that the court did not err in permitting appellees' witnesses here complained of to testify.
(c) It is next contended that the court erroneously instructed the jury. This complaint of the appellant centers around instructions 5 and 7 as offered by it and 5 as given by the court. Instruction 7 as offered by the appellant, in substance, told the jury that it could not consider or award the appellees any sum in damages on account of any depreciation in the market value of defendant's lands arising out of any apprehension of danger by any one, which apprehension might arise from the existence of said transmission lines across said property. The court refused to give this instruction. Appellant's instruction 5 told the jury, inter alia, that it could not consider or award to the appellees any sum in damages on account of any apprehension by them or by any prospective purchasers of danger to themselves, their families, animals or property on account of the construction, operation, maintenance, and renewal of the transmission lines on the land sought to be condemned. The court gave this instruction, after modifying it by adding thereto a proviso to the effect that such apprehension of danger should grow out of a lack of knowledge of the *Page 630
practical operations and effect of said lines or any future negligent act or acts upon the part of the appellant or its agents.
Appellant's complaint that the modification of the court is confusing is well founded, especially with reference to that part of the modification dealing with future negligent acts of the appellant and its agents. It is very hard to understand what the court meant by it. Appellant is further correct in its position that instruction No. 5, as offered by it, should have been given to the jury unmodified. As stated, this instruction told the jury not to award appellees any damages on account of any fears of danger to themselves, their families or animals, which they or any future purchaser might entertain on account of the construction or maintenance of this transmission line. The measure of damages in a case like this does not include such fear. It was so held in Cincinnati Gas Transportation Co. v. Cartee, 149 Ky. 89, 147 S.W. 925. Cf. L. N. v. Hall,143 Ky. 497, 136 S.W. 905; L. N. v. City of Louisville, 131 Ky. 108, 114 S.W. 743. The damages are confined to the value of the land taken and the diminution, if any, in value of the rest of the land from which the strip is taken. But it does not follow that instruction No. 7 as offered by appellant should have been given unmodified. It will be remembered that this instruction told the jury that it could not award appellees any damages on account of any depreciation in the market value of that part of appellees' land not taken, arising out of any apprehension of danger by any one occasioned by the construction or operation of this transmission line. In support of this instruction, appellant relies on the case of Alabama Power Co. v. Keystone Lime Co. (Ala.), 67 Southern 833. That was a condemnation proceeding for a transmission line exactly like the one in the case before us. The Alabama court held thatmere fears of people from the presence of the line could not be made a basis on which to predicate any depreciation in market value. In developing its thesis, the court said:
"While, therefore, it is the intent of the law that all the actual damages which may naturally and proximately result to the remainder of a, man's tract of land, by reason of the condemnation of a right of way for a public purpose across it, shall be paid to *Page 631
him, the law will not permit mere speculative elements of damages, based upon an ill-defined fear that at some unknown and indefinite time in the future some misfortune may come to some man or beast by reason of such improvement, to enter into the consideration of those who, under the law, are required to fix the amount of the damages."
We think this premise of the Alabama court is sound. But it will be noted that it, in turn, is based on the idea that the fears entertained are ill-defined, speculative, not founded on reason or experience. Such fears should not enter into a calculation of damages to be awarded for depreciation of market value. They are too speculative and remote. But if such fears be reasonable, not ill-defined, but founded on practical experience, and if they be entertained so generally as to enter into the calculations of all who propose to buy or sell, can it logically be said that they do not depreciate the market value of the property? The property owner is to be paid for his actual damage. If he cannot sell his property at as good a figure with this line on it as he could without it by reason of reasonable fears, not speculative, but founded on experience, and entertained by those who wish to buy, has he not been damaged in this regard? It is no fault of his that the line has been erected. Under such assumed state of facts, his land has been depreciated on account of such fear on the part of buyers. Those who cause such damage should pay for it. The Utah Supreme Court so held in Telluride Power Co. v. Bruneau, 125 P. 399. The Cincinnati Gas Transportation Co. v. Cartee case,supra, in effect, likewise so holds, for, while we said in that case that "fear" was not an element of damage in a condemnation proceeding, it is evident the court was referring to a state of case covered by the fifth instruction offered by appellant and which we say was a correct exposition of the law. This Cartee case, however, did hold that the apprehension of future explosions was a factor to be considered by the jury in determining whether such probability of explosion would depreciate the market value of the land left after the condemned strip had been taken. In the case of L. N. R. Co. v. White Villa Club, 155 Ky. 452, 159 S.W. 983, it appeared that the railroad was condemning a strip of ground through the premises of a country club. Among other things, the railroad *Page 632
made excavations and constructed steep and unsightly banks on the strip taken. We held that if the market value of the property for the purpose for which it was being used and to which it was adapted was thus impaired, the jury were authorized to consider it in determining the depreciation, if any, of the market value of the land remaining after the strip condemned was taken. Although the considerations here were aesthetic in nature, yet as they, in fact, did depreciate the value of the land, they were something which, we held, should be taken into consideration in fixing compensation. It seems not only fair but extremely logical to us that, if there is a well-defined apprehension, not speculative, not unreasonable, but founded on experience and on a knowledge of the manner of the construction and operation of transmission lines such as the one here in question, and of the probability of harm in connection with such construction and operation so known, to persons and animals, which apprehension enters into the consideration of those who would buy appellees' property and tend to depreciate the price offered, such a kind of apprehension should be considered by the jury in determining the depreciation, if any, in the market value of the landowner's property. This being so, instruction No. 7 as offered by appellant was properly refused. On the next trial, however, if the evidence warrants it, the court will modify instruction No. 7 as herein indicated, and, as so modified, give it to the jury. It will omit the reference to future negligent acts of appellant and its agents. We do not see the necessity of the instruction No. 7 as given by the court, and it will be omitted.
(d) Appellant insists that the verdict in this case is grossly excessive. This verdict is composed of two elements: First, the amount awarded for the land taken or burdened by the easement here in question, which was $1,500.00; and, secondly, the amount awarded for the diminution in value of the remainder of the land, which was $8,500.00.
First, with reference to the amount awarded for the land taken or burdened by the easement. Appellees' farm is about three miles from Shakertown, in Mercer county, and lies about a quarter of a mile back from the public highway. Access is obtained to appellees' farm over a private passway which runs towards and then along the front of appellees' home to his barn and outbuildings. *Page 633
It is not contended in this record that appellees' farm is suitable for subdivision, either into town lots or small tracts of land. Although the farm is suited for general agricultural purposes, it has, in the main, been used for grazing purposes. Appellant's witnesses placed a value on this farm of from $80.00 to $100.00 per acre. Appellees' witnesses, exception Woodard himself, estimated the value to be from $125.00 to $150.00 per acre. Appellee Woodard placed a value on his farm of from $175.00 to $200.00 per acre. He paid for the farm in 1917, $40,000.00, which is slightly in excess of $80.00 per acre. He claimed that since 1917 the value of this land has increased from $10.00 to $12.00 per acre, exclusive of improvements, and that he had improved the farm by the expenditure of some $50,000.00 in barns, fences, tenant houses and in improvements on the residence. So far as the easement of the appellant is concerned, it undoubtedly took so much of appellees' land as was embraced within the space of the seven steel towers. As these towers were limited in size to a base of 20 feet square, the land actually occupied by them amounts to but a little more than a twentieth of an acre for the entire seven towers. It is true that the wires which are strung from tower to tower occupy some space in the air, but, as they must be maintained more than twenty feet from the ground, the possibility of their interference with the cultivation of the land beneath is very small. Although the company has the right to trim or remove all trees within fifty feet of the center line of the transmission line which interfere with the construction, operation or maintenance of that line, it is shown in this record that there were but four or five trees necessary to be cut and only one trimmed. The line does not run through any woodland or orchard, and, as the trees which may be trimmed, or cut are only such as may interfere with the construction or maintenance of the line, it is obvious that such a burden on the one hundred foot strip is not a very onerous one. The easement taken provides that the landowner may not erect any building within a space of twenty-five feet on either side of the transmission line, and, as such line has a breadth of twenty-five feet this means that within a strip seventy-five feet wide the landowner is precluded from erecting any building. This is a burden. But inasmuch as it is not shown that any part of this seventy-five *Page 634
foot strip is peculiarly suitable for building purposes, and as it is shown that no building is now on that seventy-five foot strip, the prohibition against erecting any buildings thereon, while a matter that should be taken into consideration, is not one for which very heavy damages should be expected in the state of this record. Lastly, the appellant has the right of patrol over a strip twelve and one-half feet on either side of the center line of the transmission line. The judgment provides, however, that any damage caused by the appellant in exercising this right of patrol shall be paid for at the time such damage is done. With the exception of these burdens, the landowner retains all of the land not actually occupied by the towers of the appellant, and can use the same to any extent he wishes in so far as such use will not interfere with any of the rights taken by the appellant in this case, which, in effect, means that he may cultivate it or graze it is much as he wishes. The line runs through the appellees' farm 5,821 1/2 feet. Had the appellant taken a strip 25 feet wide in fee, its entire line would have used only 3.43 acres. Had it taken a strip 100 feet wide, the maximum width over which it has any rights, it would have used only a little in excess of 13 acres. The 3.43 acres, valued at the highest value found in this record of $200.00 an acre (being the value Woodard put on his land), would come to but $700.00. At the average figure of the rest of Woodard's witnesses of $140.00 an acre, they would come to less than $490.00. The 13 acres at the same figure would come to a little in excess of $1,800.00. But it must be remembered that neither the 3.43 acres nor the 13 acres were all taken. Excepting the space occupied by the towers, amounting to a little more than one-twentieth of an acre, the appellees still have the right of use and occupancy of all this land, except so far as such rights are curtailed by the prohibition against the erection of buildings and by the right of appellant to cut or trim trees. In the light of such facts, and in view of the value per acre put on this property by appellee's own witnesses, it is manifest that the verdict for $1,500.00 on account of the land taken or burdened by the easement is excessive.
So far as the amount awarded for the diminution in value of the remainder of appellees' land is concerned, we must consider the evidence in this case in the light of what this court said in its response to the petition for *Page 635
rehearing in the case of L. N. v. Burnam, 214 Ky. 736,284 S.W. 391, at 396. We there pointed out that, although the court and jury should take into consideration the opinions of witnesses as to values, such opinions should be tested by the facts on which the witnesses based those opinions, and if the opinions are based on facts which are recognized to be more or less speculative and remote, and as well somewhat fanciful, little, if any, weight need be given them, and they may be in large measure ignored. As said in that opinion:
"If it can be said, as was done in the Chambers case and other like ones, supra, where the testimony related to physical facts or actual occurrences, that the court would be authorized, in its endeavor to administer justice, to decline to accept that testimony at its full face value, then it would seem to follow that the same authority would exist to likewise question the more or less fanciful figures which have for their foundation only the opinions of the witnesses founded as above stated. . . . While this court may not take judicial notice of the value of land as it is located, and must and will accept the opinions of witnesses showing themselves to be qualified to testify as to such value, still it may not shut its eyes to the resulting damage to land not appropriated, in light of the facts bearing upon such diminution. In such case it is placed in the same position as the witnesses who based their opinions upon the same facts."
With these observations in mind, we find that the witnesses for appellant placed the total damage done appellees not only for the diminution in the remainder of the land but also for the land taken or burdened by appellant's easement at not in excess of $1,200.00; but just how this was apportioned is not quite clear from their testimony. The witnesses for the appellees outside of Bonta and Woodard himself run the resulting damages up as high as $12,000.00. Woodard and Bonta placed the figure as high as $30,000.00. When cross-examined, however, appellees' witnesses admitted that their estimation of the damages was in large measure based on the fear the witness had of possible danger to persons arising out of the construction and maintenance of the *Page 636
line. They did not show that this fear was founded on experience, or was reasonable, or was based on the knowledge of how these lines were constructed and maintained, as we have seen above is essential to cause diminution in value brought about by apprehension of danger to be a factor to be considered by the jury in awarding compensation. Such fear as these witnesses testified about was that ill-defined, speculative and unreasonable fear which we condemned. Further, these witnesses did not show that this fear, had it been of the proper kind, was so broad that it affected the market value of the property. They testified only that, in their judgment, the land was depreciated in value because of the fear such witnesses
entertained. Woodard testified that nine-tenths of his estimate of resulting damages of $30,000.00 were attributable to the fear he entertained of danger to himself and family arising out of the construction and maintenance of the line. He showed no reasonable basis for such fear nor that such fear affected the market value of his property. Eliminating the part due to fear, we have left out of Woodard's estimate but $3,000.00 for the other elements of damage and yet the jury awarded him $8,500.00. It may be quite true that the market value of appellees' remaining land has been diminished, by reason of appellant's easement, because of the fact that there is an intrusion on the privacy of appellees' home due to appellant's right of patrol; because of the destruction, in part, of the beauty of appellees' residence on account of the erection of the two towers near to the front of that residence; because of the crossing by the transmission line of appellees' telephone wires, which run from their home to the barn; because of the inconvenience of cultivating the whole farm on account of the necessity of cultivating around these towers, and, perhaps, because of other facts. But in the light of the testimony in this record which shows that the large estimates of damage given by appellees' witnesses were based almost, if not entirely, on the element of fear not allowable, and that appellee himself did not put an estimate of resulting damages beyond a third of that allowed him by the jury, if the element of fear be eliminated, it is manifest that with that element eliminated, as it should have been, the verdict of $8,500.00 can not stand. It results, therefore, that appellant is correct in its contention that the verdict in this case on both elements is grossly excessive. *Page 637
(e) Lastly, it is claimed that the trial court erred in disallowing appellant interest on the difference between the county court and circuit court judgments from the date the appellees were paid the amount of the county court judgment by the appellant. Of course, in view of the fact that another trial of this cause must be had in which the evidence may possibly put a different complexion upon the facts involved, we cannot give any directions about the specific interest here involved. But we can say that, if on the next trial the circuit court judgment is less than that of the county court judgment, appellant should be allowed interest on the difference from the date of the payment by it to the appellee of the amount of the county court judgment. In Albers v. Norton Co. 147 Ky. 751,145 S.W. 757, on rehearing of the original opinion found in147 Ky. 187, 144 S.W. 8, we held that where money is paid into court and withdrawn by a party who retains and uses it as his own, but who later is determined not to be entitled to it, such party is chargeable with interest on such sum. A fortiori
should this be the rule where in condemnation proceedings the amount of a county court judgment is paid directly to the landowner, which amount is reduced on appeal and a recovery over for the difference awarded against such landowner. The fact that the money did not take its course through the court cannot affect the legal principle. See also Cummings v. Bradford, 15 Ky. L. R. 155, 22 S.W. 548. In this case appellee has had the benefit of the use of the amount of the county court judgment, and, if it turns out that he was not entitled to a portion of it, he must, under the underlying principle of the Albers case supra, pay interest on such portion.
For the reasons hereinbefore set out on the original appeal, the judgment in this case is reversed, with instructions to grant appellant a new trial in conformity to this opinion.
Whole court sitting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444485/ | Affirming.
This case involves the construction of a paper executed by J.M. McKinley shortly before his death in 1935. The paper, prepared in the form of a deed, was probated as the last will and testament of McKinley, with the wife of the maker as the grantee. It contains these provisions:
"This deed is made upon the conditions that it is not to be delivered to the second party except as in the name hereinafter provided and it is not to take effect or to become operative until and except in the event of the death of the first party.
"This deed is to be held in escrow by the firm of Duncan Duncan, Attorneys of Monticello, Ky., and it is not to be delivered by them to second party except upon the death of the first party and it is to be subject to the call by the first party at any time he desires.
"It is the purpose of this deed to convey a fee *Page 485
simple estate and give the second party a right to dispose of the property as she may see fit and in the event she does not dispose of the property before her death, I will and desire that at her death the land shall go to my bastard son, Bob McFarland, and I desire that my bastard son aid and assist my wife in managing said farm, but second party is to have absolute control of all of said lands free from any limitations whatever.
* * *
"* * * It is the intention of the first party to convey to second party upon his death and absolute estate in all his lands. This deed is to be and is so intended to be testamentary and is executed with the formality to render it testamentary in character should it be necessary for it to assume that character to be effectually as intended."
Two persons witnessed the paper. Those contesting the will, the appellants, instituted this action in the Wayne circuit court. After the appellees, defendants below, had introduced the witnesses to the will, the appellants moved the court to instruct the jury to find the paper offered in evidence not to be the last will of J.M. McKinley. This motion was overruled and, upon the failure of the appellants to offer any evidence to sustain their contentions, the court instructed the jury to find the paper to be the last will and testament of J.M. McKinley. This appeal is being prosecuted from the judgment on that directed verdict.
The appellants stress the following testimony of the draftsman of the paper under consideration:
"Q. Did you understand what you were being called for? A. I believe when Mr. McFarland came after me he said Mr. McKinley had some papers he wanted to be fixed; don't think until I got there I knew what he wanted.
"Q. You went under the impression that you were going to write a will? A. Yes, sir.
"Q. I notice this reads in the language of a deed, how come you not to write in the language of an ordinary will? A. I spoke to Mr. McKinley and asked him what he wanted with me and he told me he wanted me to write a deed and that he wanted *Page 486
the deed to be held by Duncan Duncan and I told him it wouldn't be a good deed and no delivery; I undertook to explain it to him, but it never seemed clear to him; he insisted on making a deed and that provision being in it and I knew the only way it could be effected was as a will.
"Q. Did he ever consent to making a will? A. I undertook to explain to him that a deed wouldn't be good and had it executed in the formality of a will.
"Q. He didn't tell you to do that? A. He insisted all the time on making a deed.
"Q. And not a will? A. Yes, sir.
"Q. You wrote a deed, but for obvious purposes had it executed as a will? A. That is true. I knew, under the circumstances, in case of death, it wouldn't be good.
"Q. You did write and put in it what he wanted? A. Yes, sir, I did.
"Q. He was under the impression that he executed a deed? A. Yes, sir.
"Q. No other intention intended? A. No, it was written as a deed.
"Q. Did he ever withdraw his purpose to make a deed at any time? A. He didn't, that I know of.
"Q. You left him under the impression he had made a deed? A. It is a deed.
"Q. He didn't know any better than just thought it was a deed? A. Yes, sir."
This witness further testified that he read the instrument to McKinley, explained it to him and advised him to have two witnesses sign it in his presence, which was done.
The appellants earnestly insist that the provisions of the instrument itself and the testimony of the draftsman show conclusively that McKinley had no intention of making a will, but rather that he intended to execute a deed and believed that he had done so. The appellees contend on the other hand that the paper is a will and *Page 487
that its provisions are clear and unambiguous. We think the paper is a will. There is this significant language in it:
"* * * It is the intention of the first party to convey to the second party upon his death an absolute estate in all his lands. This deed is to be and is so intended to be testamentary and is executed with the formality to render it testamentary in character should it be necessary for it to assume that character to be effectually as intended."
McKinley signed the paper with that statement in it and there were two witnesses to his signature. Furthermore, it is our view that the testimony of the draftsman shows that McKinley wanted prepared an instrument under which his lands would go to his wife at his death. That purpose is clear, though the draftsman did say that McKinley insisted that a deed be prepared, but the instrument itself shows that he intended that it be testamentary in character. We have frequently said that no particular form is required for a will. In the case of Simon v. Wildt, 84 Ky. 157, it was said:
"No particular form for a will is required. If an instrument be in form a deed, yet if it appears that the maker did not intend it to be operative until after his death, then it will be held to be a will.
"Whether it is the one or the other, is a question of intention. If no conclusive effect can be given to the paper until the death of the maker — if it appear that the maker did not intend any interest whatever to vest before his death, then the law regards the instrument as testamentary." See also Ward v. Ward, 104 Ky. 857, 48 S.W. 411; Ison v. Halcomb, 136 Ky. 523, 124 S.W. 813; Morrison v. Bartlett, 148 Ky. 833, 147 S.W. 761, 41 L.R.A., N.S., 39; Vaughn v. Metcalf, 274 Ky. 379, 118 S.W.2d 727.
It follows from what has been said that it is our view that the judgment should be and it is affirmed. *Page 488 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/127672/ | 537 U.S. 1228
WOODFINv.ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, ante, p. 1061.
No. 02-7052.
Supreme Court of United States.
February 24, 2003.
1
Petition for rehearing denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2799482/ | IN THE SUPREME COURT OF IOWA
No. 13–1757
Filed May 8, 2015
IN RE THE MARRIAGE OF TRACY LYNN HOFFMAN AND ERNST
FRANKLIN HOFFMAN,
Upon the Petition of
TRACY LYNN HOFFMAN,
Appellant,
And Concerning
ERNST FRANKLIN HOFFMAN,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert J.
Blink, Judge.
A father seeks further review of a court of appeals decision denying
a change in physical care of the father’s two children after his former wife
moved from Polk County to Monroe County with her new spouse.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
Eric G. Borseth of Borseth Law Office, Altoona, for appellant.
Alexander E. Wonio and David L. Brown of Hansen, McClintock &
Riley, Des Moines, for appellee.
2
HECHT, Justice.
In this case, we determine whether a substantial change of
circumstances justifying a modification of a dissolution decree occurred
when a mother with joint legal custody and primary physical care of two
children moved approximately seventy miles from a Des Moines suburb
to a rural home in a new school district. Upon our de novo review, we
find the children’s father failed to prove the change of circumstances
justified a modification of the decree. Accordingly, we affirm the court of
appeals decision, reverse the district court’s order modifying the physical
care provisions of the parties’ dissolution decree, and remand for
determination of child support and a visitation schedule based upon the
present circumstances.
I. Background Facts and Proceedings.
Ernst Hoffman, 1 an emergency room physician, married Tracy
Hoffman, 2 a registered nurse, in 1996. The couple had two children
together: a daughter born in 1999 and a son born in 2002. Tracy
became the primary caretaker of the children, enabling Ernie to
concentrate his energy on his profession and provide a high standard of
living for the family.
During the marriage, the Hoffman family spent much of their
leisure time engaging in equine and rodeo activities, including barrel-
racing and roping competitions. According to Tracy, the parties’
daughter has “grown up on horses” and has had success in competitive
barrel racing, pole bending, goat tying, and pleasure horse events. The
daughter had her best season in 2012, earning championship honors at
1Mr. Hoffman also goes by “Ernie,” so we use that name here.
2Tracy’s last name is now Bain. We refer to her as Tracy.
3
two separate rodeos. The parties’ son also participates in rodeo events,
including dummy roping, breakaway roping, barrels, and poles.
Ernie and Tracy divorced in 2006. The divorce decree incorporated
the parties’ stipulations and contained no provision establishing that the
parties agreed to remain in a particular school district or geographical
area. The decree granted the parents joint legal custody of the children,
but allocated primary physical care of the children to Tracy, with Ernie
receiving extraordinary visitation. 3 See Iowa Ct. R. 9.9 (defining
“extraordinary visitation” as visitation that “exceeds 127 days per year”).
Tracy and Ernie maintained residences in close proximity to each
other for a time after the dissolution. Tracy purchased a home in
Pleasant Hill, Iowa, near the former marital residence, with a barn and
five acres for the horses Tracy and the children owned. She did so in
furtherance of stability for the children after the divorce and for the
purpose of minimizing disruption in their schooling and
extracurricular—especially equine—activities. Ernie also lived in
Pleasant Hill for a time after the divorce, but he eventually built a new
home nearby in Runnells, intending to stay in close proximity to, and
actively involved with, the children. Ernie has had extensive involvement
in the children’s lives and has maintained a close relationship with them
after the dissolution.
Both Ernie and Tracy eventually married new spouses. Ernie
married Dawn Hoffman in 2008. Tracy married Rob Bain in 2012. Rob
3The visitation arrangement called for Ernie to have the children with him every
Thursday after school until Friday morning, every other weekend from Thursday after
school until Monday morning, every other week during the summer, and alternating
holidays and spring break periods.
4
owns a residence south of Albia, about seventy miles from Ernie and
Dawn’s home in Runnells.
In 2011, before purchasing the land for the Runnells home, Ernie
asked Tracy to confirm she intended to maintain her residence in
Pleasant Hill. In an email message to Tracy, Ernie stated he and Dawn
“would be looking elsewhere if the kids were going to be pulled to a
different area.” At the time, Tracy and Rob were engaged, but not yet
married. Tracy replied that she and Rob had not yet decided to vacate
the Pleasant Hill residence and stated they would “cross that bridge
when/if” they needed to do so. Tracy communicated with Ernie the
following day, informing him that a move “to Albia at [some point] is a
realistic option.” Ernie moved forward with his Runnells home
construction plans under the assumption Tracy would not move for at
least a few years.
Tracy and Rob were married in January 2012, and for several
months afterward, maintained two residences—Tracy’s in Pleasant Hill
and Rob’s in Albia. However, Tracy had fallen behind on mortgage
payments and was experiencing financial stress. Believing consolidation
of two households into one would foster their new family unit, reduce
financial pressures, and make their lives less chaotic, they eventually
decided to sell Tracy’s home in Pleasant Hill and live together in Rob’s
home near Albia. Tracy’s decision to move with the children to Albia was
also influenced by the fact that Polk County’s zoning ordinance
authorized the family to keep only two horses on the Pleasant Hill
property. This zoning restriction posed a problem because she and the
two children kept at least three and sometimes as many as five horses at
any given time.
5
Tracy listed her Pleasant Hill property for sale, but did not
promptly notify Ernie. When he was informed of the listing by the
parties’ daughter on May 10, 2012, Ernie asked Tracy whether she had
made plans to move. Assuming a change of residence was not imminent
because it could take many months to sell her property, Tracy told Ernie
no specific plan for a move had been established.
Tracy later decided to move with the children to Albia in December
2012. She informed Ernie of this plan by email on November 27, 2012.
After learning of the imminent move, Ernie promptly filed a petition
seeking a modification of the physical care and child support provisions
of the dissolution decree and sought injunctive relief preventing Tracy
from changing the children’s residence. Ernie asserted the proposed
move would disrupt the children’s lives by pulling them away from
teachers, friends, and peers; prevent the children from participating in
the athletic activities they enjoyed in the Southeast Polk Community
School District; separate them from their half-brother, R.H.; 4 negatively
affect their relationship with four grandparents living in the Des Moines
area; and substantially interfere with his extraordinary visitation and
active role in parenting the children. Tracy filed a counterclaim seeking
an increase in child support to account for a substantial increase in
Ernie’s income since the 2006 dissolution decree.
The district court denied Ernie’s application for a temporary
injunction, finding the reason for Tracy’s move “[didn’t] appear to be for
the purpose of circumventing [Ernie]’s rights as a joint legal custodian.”
Tracy and the children moved to Albia in December 2012, and the
4R.H. was born to Ernie and Dawn after their marriage. He fell ill during the
pendency of the modification proceeding and tragically passed away.
6
children were enrolled as students in the Albia Community School
District in January 2013.
Before ruling on the petition for modification, the district court
appointed attorney Lora McCollom as guardian ad litem (GAL) to
represent the children’s best interests. McCollom interviewed Ernie,
Dawn, Tracy, Rob, and the children, and submitted a report to the
district court recommending modifications of the decree. In particular,
McCollom recommended that Ernie should become the primary physical
custodian so that the children could return to schools within the
Southeast Polk school district, where they preferred to be. McCollom’s
recommendation would, in her words, allow the children to “receive their
education in a district with more resources, more options, and more
activities, while still allowing them to continue to enjoy rodeo and to
participate in the other outdoor activities in Albia.” McCollom’s
recommendations were based on her evaluation of several factors
considered by this court in In re Marriage of Frederici, 338 N.W.2d 156,
160 (Iowa 1983).
The first factor McCollom considered was the reason for Tracy’s
relocation of the children’s residence. See Frederici, 338 N.W.2d at 160.
McCollom concluded Tracy did not move to Albia to thwart Ernie’s
parental rights. However, McCollom believed the move was a matter of
“convenience to Tracy and to Rob, and not for the best interests of the
kids” who were separated from their friends and much of their family as
a consequence of their relocation. McCollom’s report also emphasized
that Tracy did not move to Albia in furtherance of a job promotion or to
be closer to a family support system.
McCollom also based her recommendations on an assessment of
the characteristics of the children’s new home environment and its
7
distance from Polk County. See id. She concluded the Albia residence
provided the children with a better venue for their rodeo and other
outdoor activities. 5 Yet, McCollom found the rural home located several
miles outside Albia is somewhat “isolated” and requires the children to
spend substantial time in the car before school on Mondays when
returning from weekends with Ernie.
McCollom’s report assessed other advantages and disadvantages of
the Albia residence. See id. Among the perceived advantages was the
fact that the Albia school district offers a lower teacher-to-student ratio
than the Southeast Polk school district. The smaller school in Albia,
McCollom opined, also offers the children the prospect of enhanced
opportunities to participate in school-sponsored sports activities.
Disadvantages arising from the move to Albia, according to McCollom,
included a loss of mid-week overnight visits with Ernie during the school
year and the increased distance affecting visitation. In comparing the
academic opportunities offered by the two school districts, McCollom
cited data suggesting that the Southeast Polk school district offered
higher student proficiency rates, better graduation rates, and a greater
percentage of graduates achieving college degrees.
McCollom’s assessment also considered the impact of the move on
both the children and their parents. See id. She noted both children
experienced a modest diminution in their academic performance after
moving to Albia. The move was a substantial adjustment for them and,
not unexpectedly, produced stress in their relationship with Tracy. Both
5Rodeo is an integral part of the children’s lives. Both children stated during
separate one-on-one interviews with McCollom that the best aspect of living in Albia
was their horses and rodeo activities and that they both wanted to continue
participating in rodeo.
8
children reported to McCollom that they missed their friends and
activities in Polk County.
McCollom noted the children have the luxury of having two good,
loving parents and two caring and attentive step-parents who provide
healthy and suitable home environments for the children. However, she
opined the move to Albia constitutes a material and substantial change
in circumstances justifying a change in the physical care provisions of
the divorce decree. McCollom recommended primary care be transferred
to Ernie in part because she believes better academic opportunities are
available to the children in the Southeast Polk school district, because
the children would prefer to live in Runnells where they would be closer
to more friends and extended family, and because the children’s equine
and rodeo interests could be best facilitated during extended summer
visitation with Tracy at the Albia residence.
The district court modified the decree by granting Ernie primary
physical care, prescribing an amended parenting schedule, and setting a
child support obligation for Tracy. The court largely followed McCollom’s
recommendations and found “Tracy’s decision to relocate is premised
primarily on her wants, rather than the children’s best interests or their
needs.”
Tracy appealed and sought a stay of the district court’s ruling. We
granted the stay and transferred the case to the court of appeals. The
court of appeals concluded Ernie had failed to prove a substantial
change of circumstances affecting the best interests of the children. The
court of appeals also concluded Ernie failed to prove he has a superior
ability to minister to the children’s needs. The court therefore reversed
9
the modification ruling in part 6 and remanded the case to the district
court for the determination of a suitable visitation schedule for Ernie and
an appropriate amount of child support under the present
circumstances.
Ernie sought, and we granted, further review.
II. Scope of Review.
Petitions to modify the physical care provisions of a divorce decree
lie in equity. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 476
(Iowa 1993). Accordingly, our review is de novo. Id.; see Iowa R. App. P.
6.907. Although we make our own findings of fact, “when considering
the credibility of witnesses the court gives weight to the findings of the
trial court” even though we are not bound by them. In re Marriage of
Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). The children’s best
interest is the “controlling consideration.” In re Marriage of Leyda, 355
N.W.2d 862, 865 (Iowa 1984); see also In re Marriage of Weidner, 338
N.W.2d 351, 356 (Iowa 1983) (“first and foremost consideration”).
Utilizing the best-interest standard “provides the flexibility necessary to
consider unique custody issues on a case-by-case basis.” In re Marriage
of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).
III. Analysis.
The general principles guiding our adjudication of petitions for
modification of dissolution decrees are well-established:
To change a custodial provision of a dissolution
decree, the applying party must establish by a
preponderance of evidence that conditions since the decree
was entered have so materially and substantially changed
6The court of appeals affirmed the district court’s determination that the parties
should pay their own attorney fees incurred in the district court proceedings. However,
it ordered Ernie to pay $7625 toward Tracy’s attorney fees on appeal.
10
that the children’s best interests make it expedient to make
the requested change. The changed circumstances must not
have been contemplated by the court when the decree was
entered, and they must be more or less permanent, not
temporary. They must relate to the welfare of the children.
A parent seeking to take custody from the other must prove
an ability to minister more effectively to the children’s well
being.
Frederici, 338 N.W.2d at 158. These principles clearly place a heavy
burden on a parent requesting a modification. The burden is necessarily
a heavy one undergirding the fundamental policy that “once custody of
children has been fixed it should be disturbed only for the most cogent
reasons.” Id.
A decision by a joint custodial parent with physical care of minor
children to change residences is “the kind of decision the other joint
custodian has a right to be consulted about.” Id. at 159. Ernie contends
Tracy failed to inform him and consult with him about her plan to move
the children from their Polk County home. See In re Marriage of
Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998) (concluding one
parent’s decision to move “should not have been made without [the other
parent]’s input,” and considering the lack of communication “adverse to
[the moving parent’s] position”). While we believe Tracy could have been
more forthcoming about the development of her plan to move with the
children to Albia, the record reveals Ernie anticipated the move might
occur and clearly communicated his opposition to the prospect more
than a year before it happened. When, as in this case, joint custodial
parents disagree on the question of whether their children’s residence
should be changed, “the parent having physical care of the children
must, as between the parties, have the final say concerning where [the
children’s] home will be.” Frederici, 338 N.W.2d at 159. We have noted
that “[t]his authority is implicit in the right and responsibility to provide
11
the principal home for the children. The right would mean little if the
other custodian could veto its exercise.” Id. at 159–60. And in our
“highly mobile society”—a characterization we used in Frederici that is
surely no less true today—periodic relocation is hardly a surprise. Id. at
160.
Yet, Tracy’s authority as the physical care custodian to decide the
location of the children’s residence is not unlimited. Her decision is, as a
consequence of Ernie’s modification proceeding, subject to judicial review
based on well-established principles protecting the best interests of the
children. With these principles in mind, we turn to the circumstances
surrounding the children’s move from Polk County to rural Albia.
A. Tracy’s Motive for the Move. We find no credible evidence in
this record tending to prove Tracy moved the children to rural Albia to
defeat Ernie’s visitation rights or undermine his relationship with the
children. Cf. In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa
2005) (modifying physical care after one parent “maintained a persistent
pattern of conduct that . . . served to diminish the children’s relationship
with their mother”); Quirk-Edwards, 509 N.W.2d at 480 (modifying
physical care when “the evidence was overwhelming that [one parent]
willfully sought to deprive [the other] of . . . visitation”); Leyda, 355
N.W.2d at 867 (modifying physical care when one parent’s relocation was
“motivated in large part by [a] driving need to separate [the child] from
her father, emotionally and physically”); In re Marriage of Downing, 432
N.W.2d 692, 694–95 (Iowa Ct. App. 1988) (modifying physical care when
the moving parent denied visitation, withheld health information,
intercepted mail, and even “remov[ed] the telephone from the house when
she left the children alone so they would not call their father”). The move
was instead calculated to form a more normal and cohesive family unit
12
with her new husband and the children. We conclude Tracy’s
motivations to live under the same roof with her new husband and to
eliminate financial pressures associated with maintaining two separate
households were quite appropriate under the circumstances. Although
Tracy did not relocate to Albia to realize a more lucrative employment
opportunity as was the case in Frederici, her motivations for the move
were no less legitimate. See Frederici, 338 N.W.2d at 158; In re Marriage
of Behn, 416 N.W.2d 100, 101 (Iowa Ct. App. 1987) (“We do not find
Barbara’s moves with her [new] husband justify a change of physical
care.”); see also Hollandsworth v. Knyzewski, 79 S.W.3d 856, 873 (Ark.
Ct. App. 2002) (“A rule of law that effectively requires custodial parents
to gamble custody of their children before they can live with their
children and new spouses . . . seems the very antithesis of domestic
stability.”); Theresa Glennon, Still Partners? Examining the Consequences
of Post-Dissolution Parenting, 41 Fam. L.Q. 105, 125–36 (2007) (exploring
a multitude of reasons why parents with physical care choose to move).
B. Location, Distance and Disruption. Ernie is understandably
opposed to the move to Albia because it interferes with the convenient
visitation he enjoyed when the children lived in Pleasant Hill. The
children’s new home separates them from Ernie by approximately
seventy miles and makes visitation significantly more challenging to him.
Yet, we found in Frederici a 700-mile move causing much greater
geographic separation between children and a joint custodial parent was
“not alone sufficient to justify shifting physical care to [a] non-moving
joint custodian.” Frederici, 338 N.W.2d at 160; see also In re Marriage of
Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (declining to modify
physical care when one parent moved to a new residence fewer than 150
miles away with a new spouse, even though the nonmoving parent “was
13
first told of the move by the children, who went to him telling him they
did not want to move”); In re Marriage of Hunt, 476 N.W.2d 99, 100, 102
(Iowa Ct. App. 1991) (finding no substantial change in circumstances
when one parent moved from Waterloo to Muscatine, approximately 130
miles); In re Marriage of Howe, 471 N.W.2d 902, 903 (Iowa Ct. App. 1991)
(finding no substantial change in circumstances when one parent moved
from Greenfield to Adel, a distance of forty-two miles). Further,
“[p]hysical care issues are not to be resolved upon perceived fairness to
the spouses, but primarily upon what is best for the child.” Hansen, 733
N.W.2d at 695.
Ernie contends the move of seventy miles has disrupted the
children’s lives by distancing them from their grandparents and network
of friends, and displacing them from schools where they were
comfortable. The record shows the disruption has produced some
emotional discord between Tracy and the parties’ teenage daughter, who
expressed to the GAL a desire to move back to the Pleasant Hill area
where her friends reside. On one occasion, Tracy and the daughter
slapped each other. On another occasion while they were traveling in a
car, an argument ensued and emotions escalated. Tracy parked the car
and used her phone to summon a police officer who calmed the daughter
and defused the conflict. We find, however, that these unfortunate
incidents in which the emotions of a mother and her teenage daughter
escalated do not fairly characterize the quality and character of the
relationship. This finding is consistent with the GAL’s assessment that
despite “bumps in the road,” mother and daughter “do very well
together.”
As we have previously noted, “[n]o move is easy, even for adults.
Some emotional trauma can be expected whenever children are removed
14
from familiar to unfamiliar surroundings.” Frederici, 338 N.W.2d at 160.
And “just as [the emotional trauma normally attending a move] does not
prevent parents from moving generally, it is not alone sufficient to justify
shifting physical care to the non-moving joint custodian.” Id. Although
we do not intend to minimize the reality of such trauma, we are
convinced on this record that it is transitory and not permanent in
nature. Notwithstanding the period of adjustment for the children, the
move will allow them to maintain their close relationship with Tracy, who
has been their primary caretaker since their births. See Hansen, 733
N.W.2d at 696 (“Stability and continuity factors tend to favor a spouse
who, prior to divorce, was primarily responsible for physical care.”). Our
rules governing modification of decrees place “greater importance on the
stability of the relationship between [children] and the[ir] primary
caregiver [than on] the physical setting of the child[ren].” In re Marriage
of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998); see Whalen, 569
N.W.2d at 630 (“While stability is important in a child’s life, stability can
be nurtured as much by leaving children with the same custodial parent
as leaving them in the same neighborhood.”).
C. The Children’s Preferences. The parties’ daughter expressed
to McCollom an adamant preference to remain in the Southeast Polk
school district. Her brother reported that he misses his friends in Polk
County, but he stopped short of expressing a desire to move back there.
The court considers a child’s wishes on this question, taking into
account the child’s age and maturity. Iowa Code § 598.41(3)(f) (2013);
see Hansen, 733 N.W.2d at 696 (stating although section 598.41(3) does
not expressly apply to physical care decisions, the factors in the statute
are relevant considerations); see also Jones v. Jones, 175 N.W.2d 389,
391 (Iowa 1970) (“[W]hen a child is of sufficient age, intelligence, and
15
discretion to exercise an enlightened judgment, his or her wishes, though
not controlling, may be considered by the court, with other relevant
factors, in determining child custody rights.”). Although the teenage
daughter’s preference is significant in our view, it is entitled to less
weight in this modification action than it would be given when allocating
physical care in an original custody proceeding. See In re Marriage of
Zabecki, 389 N.W.2d 396, 399–400 (Iowa 1986); Smith v. Smith, 257 Iowa
584, 591, 133 N.W.2d 677, 681 (1965). Iowa courts have noted this
distinction where, as here, a child’s preference to reside with one parent
seems to be rooted in resistance to a physical care provider’s relocation.
See In re Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000)
(denying modification when the record suggested one child’s “preference
has more to do with her Iowa friends and school than it does with [her
parents]”); In re Marriage of Smith, 491 N.W.2d 538, 539–40 (Iowa Ct.
App. 1992) (denying modification where children were unhappy about
their relocation from an urban area to a rural area).
D. Relative Advantages and Disadvantages of the Albia
Residence. A central feature of McCollom’s rationale for recommending
a modification of primary care was her conclusion that the Southeast
Polk school district offers more resources and educational opportunities
than the Albia school district. After conducting online research and
consulting unidentified educators, McCollom concluded the Southeast
Polk school district has “far more resources, opportunities, and course
options than Albia.” She also compared other data from the two districts
and reported as follows:
Southeast Polk students have a higher percentage of 8th
grade students proficient in reading (77.42% vs. 72.54%),
and a higher percentage of 11th grade students proficient in
both math (74.18% vs. 73.37%) and reading (73.80% vs.
16
71.01%). The only area that Albia had a higher percentage
of proficient students was 8th grade math (80% vs. 77.58%).
McCollom also reported other data suggesting that higher percentages of
Southeast Polk High School students graduate from high school (93.1%
vs. 81.6%), complete some college courses (59.8% vs. 37%), complete an
associate degree (23.8% vs. 17.7%), or complete a bachelor’s degree
(23.8% vs. 12.5%) than their counterparts from the Albia school district.
The court of appeals considered these comparative data and
concluded “the difference, if any, between the quality of the two schools
is not material and does not constitute a substantial change in
circumstances.” The court reasoned further:
The data regarding graduation rates and college
matriculation rates does not necessarily tell us anything
about the quality of instruction within the two school
districts. First, the difference in some metrics do not appear
statistically meaningful or legally material. For example, the
GAL reported that Southeast Polk students have a higher
percentage of 11th grade students proficient in math
(74.18% vs. 73.37%). Further, the data [were] not one-sided.
For example, the GAL reported Albia has a higher percentage
of 8th grade students proficient in math (80% vs. 77.58%).
In short, the data was mixed or inconclusive at best.
Further, because the data cited by the GAL was static, it fails
to tell us anything meaningful about the trends within each
district and the persistence of any meaningful distinction
between the performance of the students within each
district. Most important, however, the GAL’s conclusion that
the data supported the conclusion that one district was
superior to the other is not sound. The GAL’s report did not
account for socioeconomic differences (such as race,
ethnicity, marital status of the parents, educational
attainment of the parents, household income etc.) between
the two school districts. Relatedly, the GAL’s report did not
account for the differences between a large urban district
and a small rural school district and the potentially different
aspirations of the students within such districts as
measured by plans for educational advancement,
occupational choice, and future income expectations. In
sum, the data, in particular college entrance data, may not
reflect on the quality of instruction within the respective
districts so much as the different expectations and
aspirations of the students and parents within the districts.
17
The GAL’s report also focused greatly on the data
provided on the schools’ website without accounting for
other factors that might relate to the overall educational
experience of the children. For example, the GAL report did
not account for the Albia district’s correspondence program
with Indian Hills Community College that provided
educational opportunity in addition to that provided by
Albia.
We agree with the reasoning and conclusions of the court of appeals on
this point and conclude the record does not establish that the children’s
educational interests dictate that they should reside in the Southeast
Polk district. Cf. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.
App. 1994) (concluding the differences between public and private school
did not substantiate a parent’s concern that one type of education was
inferior, and did “not provide a basis for modification”). Notwithstanding
the stress associated with the move to Albia and the unfortunate loss of
their step-brother during the period of adjustment to the move, the
children’s course grades since the move have remained essentially stable
compared to their academic performance before the move.
In assessing the other advantages and disadvantages of the
children’s Albia residence, we find relative equipoise. Although the
children have verbalized that they miss athletic activities they enjoyed in
the Southeast Polk district, they have become involved in similar
activities in Albia and likely will see greater opportunities there to
participate in organized sports. Separation from friends who lived in
their Pleasant Hill neighborhood could be counterbalanced by the
children’s prospects for new friendships in Albia and the greater
opportunities to enjoy their equine hobbies in a rural area. 7 And even
though the children’s primary residence is in Albia, they will be able to
7The record reflects the Bain family now keeps more than fifteen horses on their
Albia property.
18
maintain regular contact with Polk County and the important people in
their lives who reside there.
We do not underestimate the disadvantages the relocation poses
for Ernie. The distance he must travel for visitation and to attend school
and athletic events is substantial if the children remain in Albia. The
frequent travel to and from Albia will cost him both time and money if
primary care of the children is not modified. However, his work schedule
—working twelve-hour shifts four nights and eight days each month—
could provide him with extraordinary flexibility for visitation
opportunities unavailable to other parents with customary work-week
schedules. 8
Upon our de novo review of the record, we agree with the court of
appeals’ determination that, under all the circumstances presented here,
Ernie has failed to meet his heavy burden to prove the children’s move to
Albia constitutes a substantial change of circumstances affecting the
best interests of the children. We also agree with that court’s conclusion
that Ernie has failed to prove a superior ability to minister to the needs
of the children. Although he is an excellent parent who has
demonstrated an admirable record of involvement in the lives of the
children, we cannot find on this record that his ability to minister to the
needs of the children is superior to Tracy’s. “If both parents are found to
be equally competent to minister to the children, custody should not be
changed.” In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.
App. 1994).
8Ernie’swork schedule also requires him to work every other weekend and every
other holiday. Since the children’s move to Albia, Ernie has chosen not to use his days
off work to attend the children’s activities because he “doesn’t agree with them living in
[and] having school in Albia.”
19
We have considered all of the arguments of the parties but have
addressed only those of material significance to our decision. In view of
our decision, we must remand this case to the district court for a
determination of an appropriate visitation schedule. As the district court
ordered a modification in Ernie’s favor, it did not decide Tracy’s claim
that Ernie’s child support obligation should be increased to reflect a
substantial change in his income. Accordingly, on remand the district
court shall modify Ernie’s child support obligation consistent with the
parties’ income and the child support guidelines.
IV. Conclusion.
“We do not award custody by determining whether a rural or urban
Iowa upbringing is more advantageous to a child.” In re Marriage of
Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993). Because we conclude
Ernie has failed to prove the children’s move to Albia constitutes a
substantial change of circumstances or that his ability to minister to the
needs of the children is superior to Tracy’s, we conclude the district
court erred in modifying the dissolution decree. Accordingly, we affirm
the decision of the court of appeals and reverse the district court’s
modification ruling. We remand to the district court for a determination
of an appropriate visitation schedule and modification of Ernie’s child
support obligation based on the present financial circumstances of the
parties and the child support guidelines.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Waterman, Wiggins, and Mansfield, JJ.,
who dissent.
20
#13–1757, In re Marriage of Hoffman
WATERMAN, Justice (dissenting).
I respectfully dissent. I would affirm the district court that decided
this case fairly and in the best interest of the children based on live
testimony and the recommendations of an experienced guardian
ad litem. Under the original decree, both parents agreed to continue
living in the Southeast Polk Community School District, home to their
extended families. That arrangement worked well for all concerned.
Then the mother, without consultation or adequate warning, abruptly
moved their children with her to Albia, seventy miles away. The move
was for her own convenience and unrelated to any change in her
employment. The district court correctly determined the father
established a substantial change in circumstances warranting
modification of the custody provisions of the original decree. The district
court’s modification kept the children together with their father in their
existing school district, consistent with the strong preference of the high-
school-age daughter. We should not second-guess the district court’s
ruling on appellate review of a cold transcript.
I. We Should Defer to the District Court’s Findings.
It is well-settled that “[b]ecause [the] trial court was present to
listen and observe the witnesses, we give weight to its findings.” In re
Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). There are good
reasons to defer to the district court’s factual findings:
A trial court deciding dissolution cases is greatly helped in
making a wise decision about the parties by listening to
them and watching them in person. In contrast, appellate
courts must rely on the printed record in evaluating the
evidence. We are denied the impression created by the
demeanor of each and every witness as the testimony is
presented.
21
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation
omitted) (internal quotation marks omitted). We have recently reiterated
“live, in-court testimony is preferable.” Book v. Doublestar Dongfeng Tyre
Co., 860 N.W.2d 576, 598 (Iowa 2015); see also Burke v. Quick Lift, Inc.,
668 F. Supp. 2d 370, 382 n.11 (E.D.N.Y. 2009) (“ ‘In determining
credibility, there is nothing like the impact of live dramatis personae on
the trier of the facts.’ ” (quoting Polaroid Corp. v. Casselman, 213
F. Supp. 379, 382–83 (S.D.N.Y. 1962))).
“Even though our review is de novo we give weight to
trial court findings of fact, especially when considering
credibility of witnesses. As difficult as it is to assess
credibility of live testimony, it is more difficult to assess
credibility from a cold transcript.”
In re Marriage of Woodward, 228 N.W.2d 74, 75 (Iowa 1975) (quoting
Zaerr v. Zaerr, 222 N.W.2d 476, 477 (Iowa 1974)). The court of appeals
recently elaborated on the fact-finding advantages enjoyed by the district
court’s front-row seat:
A witness’s facial expressions, vocal intonation, eye
movement, gestures, posture, body language, and courtroom
conduct, both on and off the stand, are not reflected in the
transcript. Hidden attitudes, feelings, and opinions may be
detected from this “nonverbal leakage.” Thus, the trial judge
is in the best position to assess witnesses’ interest in the
trial, their motive, candor, bias and prejudice.
In re Marriage of Rademacher, No. 11–0798, 2011 WL 5868041, at *3
(Iowa Ct. App. Nov. 23, 2011) (quoting Thomas Sannito & Peter J.
McGovern, Courtroom Psychology for Trial Lawyers 1 (1985)).
We should give even greater deference to the district court’s
findings on close questions. In re Marriage of Udelhofen, 444 N.W.2d
473, 474 (Iowa 1989) (“The deference we pay to trial court findings is
especially strong here. As will appear, the case turns, not so much on
what was said and done, as upon the implications of the words and
22
actions of the parties.”); In re Marriage of Reed, No. 09–0029, 2009 WL
4122884, at *6 (Iowa Ct. App. Nov. 25, 2009) (“In close cases such as
this, we give careful consideration to the district court’s findings.”); In re
Marriage of Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (“The
issue of whether Charles has met the heavy burden for modification is
close. We give weight to the fact findings of the trial court, particularly
as to credibility of witnesses, and affirm.”).
The majority, by second-guessing the district court’s equitable
resolution of a close case, will spawn more appeals, increasing the costs
to litigants in family law cases, many of whom can ill-afford an appeal.
The better practice is to affirm the district court’s decision in close cases.
Against this backdrop, I will now focus on the evidence supporting the
district court’s decision in Ernie’s favor.
II. Tracy’s Move to Albia Was Motivated by Her Own Self-
Interest, Not the Best Interests of the Children.
The district court found, “Tracy’s decision to relocate is premised
primarily on her wants, rather than the children’s best interests or their
needs.” When Tracy moved, she had not yet sold her house and
continued to commute to work in Des Moines. Her new husband, Rob,
had lived with her in Des Moines for nearly two years. Rob’s job required
frequent travel and did not demand that he live in Albia. Tracy testified
that one of the primary reasons for her move was that she could legally
only have two horses in Des Moines.9 Tracy uprooted the children from
their close family and school relationships in Southeast Polk primarily so
that she could pursue her own interest in horses and rodeo.
9Tracy testified she usually required space for three to five horses, depending on
family needs. During the pendency of this appeal, she acquired a sixteenth horse.
23
“Our appellate decisions which have previously addressed the
issue of a change in residence as a ground for modification generally
focus on the motivation behind the move, as well as the overall impact of
the move on the children.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa
Ct. App. 1996). In re Marriage of Frederici was a seminal case
establishing the burden for modification of child support when the
custodial spouse sought to move out of state. 338 N.W.2d 156, 158
(Iowa 1983). We found it significant that the mother’s relocation in that
case was to pursue a “unique and promising career opportunity.” Id. at
160. We affirmed the judgment of the district court, vacating the court of
appeals decision. Id. at 161. Unlike in Frederici, Tracy was not
motivated by a new job opportunity, but by her desire to raise more
horses for her personal recreation.
Iowa appellate courts have not hesitated to affirm custody
modifications when a parent relocates for reasons of personal preference
rather than for work. In In re Marriage of Quirk-Edwards, we affirmed a
modification giving physical custody to a father based on a mother’s
relocation four months after the divorce. 509 N.W.2d 476, 480 (Iowa
1993). We concluded that the mother had no good reason for making the
move. Id. at 479. In Dale, the court of appeals affirmed the district
court’s modification transferring physical custody to the father after the
mother moved in with her new husband. 555 N.W.2d at 244, 246. The
Dale court concluded that when the mother moved without having new
employment, she “showed no consideration for the overall welfare of [the
child] and her relationship with [the father].” Id. at 246. The same is
true here.
The district court correctly concluded that a modification of
custody was appropriate, given Tracy’s motivations and actions. Tracy
24
did not move to advance her career or to seek out new opportunities for
the children. The children had more educational opportunities, and
church and family connections in Des Moines. My de novo review
confirms Tracy moved for her own benefit despite the impact on their
children or Ernie, who shared joint custody. The move tore the children
away from their friends, their school activities, and significant time they
could spend with their father and extended family.
III. The Best Interests of the Children Are Served by
Remaining with Ernie.
I agree that a parent requesting modification of custody bears a
heavy burden, and a custodial parent’s relocation does not automatically
constitute a significant change in circumstances. In re Marriage of
Frederici, 338 N.W.2d at 158, 161. However,
[i]n determining whether removal should be prevented,
the trial court must consider all of the surrounding
circumstances. They include the reason for removal,
location, distance, comparative advantages and
disadvantages of the new environment, impact on the
children, and impact on the joint custodial and access rights
of the other parent.
Id. at 160. 10 Because custody cases are fact specific, “[p]rior cases have
little precedential value; we must base our decision primarily on the
10In re Marriage of Frederici was decided in 1983. In 2005, the legislature
enacted section 598.21D, stating:
If a parent awarded joint legal custody and physical care or sole
legal custody is relocating the residence of the minor child to a location
which is one hundred fifty miles or more from the residence of the minor
child at the time that custody was awarded, the court may consider the
relocation a substantial change in circumstances.
Iowa Code § 598.21D (2007). The plain language of the statute is permissive (“the court
may consider”). A move of more than 150 miles alone may not be a substantial change
under some circumstances, and a move of less than 150 miles may constitute a
substantial change under other circumstances. Thus, the factors discussed in Frederici
remain relevant.
25
particular circumstances of the parties in this case.” In re Marriage of
Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The most important factor is
the best interests of the children. In re Marriage of Hansen, 733 N.W.2d
683, 696 (Iowa 2007); In re Marriage of Leyda, 355 N.W.2d 862, 865
(Iowa 1984) (stating that the children’s best interest is the “controlling
consideration”).
Tracy’s move interfered not only with the children’s ability to
maintain their relationship with Ernie, but with their extended families,
sports teams, and church communities. There are specific educational
opportunities available in the Southeast Polk school district not found in
the Albia school district. The district court correctly found its
modification of custody was in the best interest of the children.
A. The Children’s Relationship with Ernie and Other Family
Members. The court of appeals has observed that relocation “can
present significant obstacles to regular and active visitation by the
noncustodial parent.” Dale, 555 N.W.2d at 245. The majority gives too
little weight to the disruption Tracy’s move caused the children. Their
son and daughter’s extended family, including all four grandparents, live
in the Des Moines area. During the original dissolution proceedings,
Tracy bought a home in the Southeast Polk school district with court
approval. Ernie, in reliance, purchased a lot to build a home near
Tracy’s and close to the children’s schools. While his new home was
under construction, Ernie rented in the same neighborhood so he could
be actively involved in the children’s lives. Ernie was granted
extraordinary visitation under the original decree. Tracy’s sudden and
unannounced move to Albia deprives their children of more than fifty
Thursday evenings spent with Ernie annually. Ernie testified about the
missed opportunity to spend time with their son and daughter:
26
A. Yeah. I mean, I could go—if I had a ball game, I could go
catch the ball game. I could go catch some practice. I could
go have lunch with them—if I wasn’t working—at the school.
Q. And that’s changed since the move; isn’t that
correct? A. Yes.
Q. It’s been a great struggle to stay as involved, even
to some minor degree, with these kids? A. Right, it has.
The GAL’s report also highlighted the loss of parenting time as the
biggest disadvantage of the children’s move to Albia:
In terms of disadvantages, the biggest disadvantage for the
kids is clearly the loss of the Thursday nights with their dad.
Additionally, both kids share a much stronger bond with
Ernie’s wife Dawn than they do with Rob (which is likely due
to the fact that Dawn has been involved in their lives longer),
and they both expressed that seeing Ernie and Dawn every
other weekend is not enough. I also see the distance as a
disadvantage, especially given the Monday morning drives to
Albia and the uncertainty of Iowa weather.
Tracy’s move significantly cuts down on the contact Ernie can reasonably
have with their son and daughter and makes it more difficult for the
children to have an ongoing relationship with Ernie and other family
members.
We have noted “a growing body of scholarship suggests that the
continued presence and involvement of both parents is often beneficial to
the lives of children.” In re Marriage of Hansen, 733 N.W.2d at 693. It is
a legislative goal for children of divorced parents to have as much
ongoing contact as possible with the noncustodial parent. Iowa Code
§ 598.41(1)(c) (2013) (“The court shall consider the denial by one parent
of the child’s opportunity for maximum continuing contact with the other
parent, without just cause, a significant factor in determining the proper
custody arrangement.”). To support these goals,
[p]arents in accepting an award of joint custody accept a
responsibility to communicate with each other and to
support the other parent’s relationship with the child.
Parents must put away their personal animosities toward
27
each other and work together to meet the children’s needs.
Substantial contact with both parents is one of these needs.
Children of a divorce have a need to maintain meaningful
relationships with both parents.
In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988).
Ernie, true to his extraordinary visitation schedule, actively participated
in the children’s lives, serving as a line coach for his son’s football
games, visiting the children during lunchtime at school, and stopping by
their home in the evenings. Tracy’s move to Albia sharply curtails the
amount of time Ernie is able to spend with their children.
B. Tracy’s Lack of Communication Makes It Unlikely She Will
Support an Ongoing Relationship with Ernie. The district court
stated, “The rather [dictatorial] non-communicative manner in which
[Tracy’s move to Albia] was executed demonstrates a lack of cooperative
parenting that would only be exacerbated by physical distance between
the households.” A primary physical custodian has the responsibility to
engage with the other parent in serious decisions concerning joint
custody. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App.
1998) (“We consider [the mother] making these decisions without [the
father]’s input adverse to her position.”). Ernie discovered Tracy had put
her house on the market when their daughter received a text from a
friend asking about the for-sale sign there. Ernie first learned of Tracy’s
plan to move the children when their daughter called him in tears two
days before Tracy emailed him notification. When Ernie applied for a
temporary injunction to prevent Tracy from taking the children to Albia,
Judge McLellan observed, “[T]he manner in which [Tracy] acted in
informing [Ernie] of the move and her failure to communicate her
decision with him is disturbing and should have been handled better.”
Tracy also posted disparaging comments about Ernie and the legal
28
system on social media that their children could see. The move to Albia
strained Tracy’s relationship with their daughter. On one occasion, they
slapped each other. On another occasion, matters escalated to the point
that Tracy called the police to confront their daughter.
The majority downplays Tracy’s behavior preceding her decision to
uproot the children from the agreed school district. Yet, every district
court judge involved in this case has expressed concern about Tracy’s
poor communication with Ernie and her pattern of unilateral decision-
making disparaging Ernie’s rights. Tracy repeatedly substituted motion
practice for dialogue. For example, she filed a contempt action against
Ernie on December 29, 2006—just two months after the decree of
dissolution—over payment of medical expenses. Ernie, who had paid the
expenses before he was served with papers, responded with his own
claim for contempt against Tracy for obstructing his access to their
children. The district court found that Tracy
is clearly demonstrating her unwillingness to promote and
enhance the relationship between the children and [Ernie].
There is clear hypocrisy in Tracy’s attitude in this
respect. . . . This court feels much the same about Tracy’s
behavior and attitude as did Judge Lloyd when, early on in
the case, he addressed the parties’ counter applications for
contempt. In a ruling entered April 20, 2006 Judge Lloyd
dismissed each party’s application against the other and
chastised Tracy for seeking contempt against [Ernie] when
her behavior was disingenuous.
Despite these admonitions by two district court judges, Tracy continued
to file unfounded contempt actions, twice in October of 2007 and again
in October of 2008. These contempt actions are symptomatic of Tracy’s
issues communicating with Ernie. See In re Marriage of Whalen, 569
N.W.2d at 628–29 (“We find [the mother’s] decision to make provisions
for the move without consulting [the father] a violation of the dictates of
29
the joint custody. This decision indicates an intention on her part not to
assure their father’s continual involvement in the children’s lives.”).
The past is prologue. The best predictor of what someone will do
tomorrow is what he or she did yesterday. The manner in which Tracy
handled her move to Albia shows her unwillingness to support Ernie’s
relationship with the children going forward. See In re Marriage of
Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992) (“In determining
what is in the best interests of the child we can look to a parent’s past
performance because it may be indicative of the quality of the future care
that parent is capable of providing.”). The district court correctly found
the move to Albia would exacerbate the relationship problems resulting
from Tracy’s poor communication and disingenuous behavior. The trial
judges who personally observed the testimony of Tracy and Ernie are
better positioned than our court to make that determination.
C. The Opportunities Available at Southeast Polk. The majority
fails to note specific opportunities available in Southeast Polk for the
daughter’s career interest as a veterinarian. The GAL’s report stated:
Her preference, as she described to me, is based primarily
upon her interest in a career in equine veterinary medicine.
There are specific classes available at Southeast Polk which
will help M.H. prepare for such a course of study.
Additionally, M.H. wanted to study French and it is not
offered in Albia. Finally, she also stated that there are many
more options for extra-curricular activities, classes, and
clubs at Southeast Polk.
Ernie testified that Southeast Polk schools also had specific
opportunities allowing students to obtain college credit. Tracy moved the
children to a new district in the middle of the school year, with a scant
few weeks’ notice, when they were already enrolled in athletics and
activities in Southeast Polk for the spring semester. All of the children’s
medical care had taken place in Des Moines, and they were able to
30
participate in both rodeo and extracurricular activities in Southeast Polk
before their move. Both children were also involved in church in
Des Moines. The daughter had difficulty making new friends in Albia,
and her studies suffered in the weeks leading up to the modification trial.
In In re Marriage of Frederici, we evaluated the relative
opportunities the two locations offered the children. 338 N.W.2d at 160
(“On the plus side, Littleton appears to be a nice city, and the Denver
metropolitan area offers advantages comparable to those in the
Des Moines area. With improvement in her income, Virginia should be
able to provide the children with the same material advantages they had
in Des Moines.”). There are specific educational opportunities available
at Southeast Polk that are unavailable to the children in Albia. Further,
there are educational and medical advantages to the larger school district
and hospital systems in Des Moines. The district court correctly relied
on those factors in determining the best interests of the children.
IV. The Daughter’s Preference to Remain with Ernie Should
Be Given More Weight.
The daughter’s preference to live with her father was just one
factor the district court and GAL relied on in concluding physical custody
should be modified, but I address it separately because I do not believe
the majority gives enough weight to her preference. Our law on the
preference of a minor is well settled:
It is also an almost universal rule that when a child is of
sufficient age, intelligence, and discretion to exercise an
enlightened judgment, his or her wishes, though not
controlling, may be considered by the court, with other
relevant factors, in determining child custody rights.
Jones v. Jones, 175 N.W.2d 389, 391 (Iowa 1970). The child’s preference
“is given some weight, but less weight in a modification than in an
31
original custodial determination.” In re Marriage of Mayfield, 577 N.W.2d
at 873.
Iowa Code section 598.41(3)(f) provides that in
considering what custody arrangement is in the best
interests of the minor child, the court shall consider whether
the custody arrangement is in accord with the child’s wishes
or whether the child has strong opposition, taking into
consideration the child’s age and maturity.
In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct. App. 1985).
There, the court of appeals discussed “numerous factors” when
determining how to weigh a minor child’s testimony: age and educational
level, strength of the preference, intellectual and emotional makeup of
the child, relationship with family members, reason for the decision, the
advisability of recognizing teenager’s wishes, and the recognition that we
are not aware of all of the factors that influenced the decision. Id. at
258–59.
Ernie and Tracy’s daughter, a high school sophomore, is old
enough to have a say. She strongly preferred living with her father in the
Southeast Polk school district and clashed with her mother in Albia. She
wants to attend school in Southeast Polk to follow her career aspirations
to be a veterinarian and take advantage of other educational offerings
available there. The GAL’s report states:
I believe that . . . M.H.’s preference should be given
significant weight. She is an intelligent young woman with
an incredibly strong preference; she shares a close
relationship with both Ernie and Dawn, and her preference
is not based solely upon the discord in her relationship with
Tracy. I also believe, unequivocally, that it is in both kids’
best interest to remain together and not to be separated from
each other.
I agree. Moreover, the GAL and district court judge are better positioned
than our appellate courts to determine the weight to be given the
daughter’s preference.
32
For all these reasons, I would vacate the court of appeals decision
and affirm the district court’s modification ruling.
Wiggins and Mansfield, JJ., join this dissent. | 01-03-2023 | 05-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3436551/ | About 7 P.M. on March 2, 1926, the sheriff, his deputy, and the county attorney of Marshall County undertook to arrest one Charles Wyatt and the defendant on a public street in the city of Marshalltown. The defendant and Wyatt were seated in a Hupp automobile on Eighth Avenue in said *Page 1134
city. Wyatt was the driver. As soon as the occupants of the automobile were apprised by the officers of their mission, or an attempt was made to arrest them, the automobile was started, and driven rapidly away. The officers followed, firing several shots at the oil tank and tires of the automobile. One bullet, however, struck the defendant in the right shoulder, inflicting a slight wound. During the flight, the defendant was seen by the officers to throw two gallon cans out of the automobile. These cans were found to contain alcohol. The defendant's explanation of his presence in the automobile was that he had gone to the city to get a razor which he had left to be honed, and, while he was standing on the street corner, he saw Wyatt drive up in his automobile, and called to him; that he got in the car, intending only to ride with him; that he had nothing to do with the transportation of the liquor, and did not know what was contained in the cans. The officers, however, testified that they saw the defendant apparently engaged in trying to get hold of the cans, which were in a place provided therefor, immediately back of and below, but not under, the seat. An examination of the automobile disclosed a small opening back of the seat into the body of the car. The space below and back of this opening was large enough to hold 20 or more gallon cans. The defendant was indicted as a principal, and so tried.
The sole proposition relied upon by appellant for reversal is an alleged prejudicial error in Paragraph 5 of the court's charge to the jury. The instruction is clearly not technically correct. The only exception preserved in the record to this instruction is the following:
"This [meaning the portion of the instruction complained of] was damaging and prejudicial to the defendant, and there was no alternative given to him to show that, even if he threw said cans from the car, the throwing of the can itself would not be a crime, unless the defendant knew that said cans contained intoxicating liquors."
The error in the instruction, if any, was in its peremptory direction as to the facts. The distinction between a principal and an accessory before the fact has been abolished by statute in this state. Section 12895, Code of 1924. The knowledge of the defendant as to whether the cans contained intoxicating liquor may have been material, but the instruction makes no *Page 1135
direct reference thereto. Impliedly, the instruction removes the question from the case. The exception preserved does not, however, go to this point. The statute prescribing the form and character of exceptions to instructions is clear, and has been too often interpreted by this court to require more than the mere citation of a single case. The rule is applicable to criminal prosecutions. State v. Higgins, 192 Iowa 201.
Only exceptions properly preserved will be considered or reviewed on appeal. The pending case is somewhat similar in its facts to the facts involved in State v. Duskin, 202 Iowa 425; but the evidence of culpability is much stronger, and the Duskin case is not controlling.
We find no reversible error in the record, and the judgment is affirmed. — Affirmed.
EVANS, C.J., and FAVILLE, KINDIG, and WAGNER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/127694/ | 537 U.S. 1231
MEDICAL BOARD OF CALIFORNIAv.HASON.
No. 02-479.
Supreme Court of United States.
March 3, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. [Certiorari granted, ante, p. 1028.] Motion of Lawrence C. Agee for leave to intervene denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/127734/ | 537 U.S. 1234
CAHNv.UNITED STATES ET AL.
No. 02-7635.
Supreme Court of United States.
March 3, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
2
C. A. 3d Cir. Certiorari denied. Reported below: 35 Fed. Appx. 356. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3444486/ | This is a contest of a local option election held in Cumberland county on February 13, 1937. The grounds of contest are that the local option act of 1936 (Acts 1936, c. 1) does not conform to the provisions of section 51 of the Constitution, in that it embraces more than one subject, and that the last publication in the county newspaper was nine days before the election, and the notice did not appear in the last issue of the paper immediately preceding the day of the election.
We have recently held in the case of Goodwin v. Anderson,269 Ky. 11, ___ S.W.2d ___, that the act does not offend section 51 of the Constitution, and is a constitutional law.
We do not think there is any merit in the contention as to the time of advertising. It appears that the first publication occurred January 14, but the first two publications in the newspaper stated that the election had been called by order of the Cumberland circuit court. A corrected notice showing the order calling the election was made by the county court, was published January 28, and February 4. 'It appears, therefore, that there was a publication of a correct notice sixteen days before the election. We do not think the omission from the edition of the paper immediately preceding the day of the election was such a substantial departure as to require that the election be set aside. It is not contended that the notices required to be posted in each precinct were not continued up to the very day of the election.
Our conclusion is that the judgment in the contest case should be affirmed. This will avoid a decision on the regularity of the order of the circuit court made in vacation thereafter, directing that the law be put into effect pending the appeal.
In Allen v. Griffith, 160 Ky. 621, 170 S.W. 33, we *Page 514
held that subsection 12 of section 1596a, Ky. Stats. (now section 1596a-12), providing that the court shall hear and determine election contest cases as speedily as possible, authorized the issuance of an immediate mandate. The issuance of the immediate mandate is not a matter of right, but one which lies in the discretion of the court. We are of the opinion that an immediate mandate should issue in this case, but the same shall be without prejudice to the right of appellant to file a petition for rehearing.
Wherefore the judgment is affirmed and immediate mandate will issue. Whole court sitting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444487/ | Affirming.
The appellant, Ephie Buckles, has prosecuted this appeal from a judgment of the Jefferson circuit court affirming an order of the Workmen's Compensation Board denying appellant compensation for an injury received while in the employment of appellee.
The questions to be determined in this appeal are, (a) did appellant notify appellee of his injury "as soon as practicable after the happening thereof * * *" as provided in Section 4914 of the Kentucky Statutes, *Page 646
and (b) whether delay in giving notice was a defensive plea and should have been specifically pleaded by appellee, under the provisions of Rule 15 of the Rules of Practice and Procedure in Trial of Compensation Cases. We will discuss these points in the order named.
(a) It is shown by appellant's own evidence that he received his injury on the morning of November 4, 1937. He said that when lifting a crate of vegetables he felt a "pain or something" in his right side; the pain kept bothering him and he went in the back room and looked at his side and there was a "bulge" in his side and he called in Bill Keith and Gorman Taylor, also employees of appellee, and let them look at his side and they saw the place or injury, and he said to them, "We better fill out a claim, one of the accidents reports that we have to fill out. I said, 'I don't know whether it is a hernia or not, but we will fill it out.' " He was further asked and answered as follows:
"Q. That was November 4th? A. Yes.
"Q. What did you do then? A. It was going right into the holidays and I thought if I turned it in they would want me to be operated on. That was going into Thanksgiving and Christmas, and I said 'We will wait until after the Holidays to turn it in.'
"Q. When did you next do anything? A. On Wednesday, about November 10th, I was down at Second and Oak and went to Dr. Osborne and had him examine me. I didn't know whether it was a hernia or not. He examined me and said it was a hernia and said the chances were there was no immediate danger. * * *
"Q. Go ahead. After you went to Dr. Osborne you continued your employment? A. I went on and worked through the holidays, and the first of the year, the 2nd, 3rd or 4th I gave the report to Mr. Wright and I guess he went ahead and gave it to the office.
"Q. What conversation did you have with Mr. Wright concerning the accident? A. I said, 'Mr. Wright, I hurt my side and here is the report we filled out when I was hurt.'
"Q. What position does he hold with the company? A. Superintendent or supervisor, I guess you would call it. *Page 647
"Q. You gave a report of the accident to Mr. Wright? A. Yes, the one we filled out when it happened.
"Q. A routine report? A. Yes.
"Q. Witnessed by Mr. Taylor and Mr. Keith? A. es sir.
"Q. What date was that? A. The date it happened.
"Q. The date you gave the report to Mr. Wright? A. That was the first of the year; I wouldn't say exactly, the second or third or fourth, shortly after New Years, after the holiday rush."
Appellant further testified that he continued to work from the date of his injury until after the first of the year, about January 3d or 4th, and that appellee had no knowledge of his injury until the latter date.
It was shown by the evidence of various doctors who examined appellant that at the time they made their examination they could not determine whether the hernia was of long standing or a fresh one.
Whether or not notice of an accident or injury is given to the employer, "as soon as practicable after the happening thereof," is to be determined by the proven facts and attendant circumstances of each case. What might be reasonable time or "as soon as practicable," in some circumstances, might not be under other circumstances — depending on the opportunity of the injured person to give notice, and the nature of the injury. Turner, Day Woolworth Handle Company v. Morris, et al., 267 Ky. 217, 101 S.W.2d 921. Also, in determining the importance or necessity of giving early notice, as affecting the rights of the employer, may depend largely upon the nature of the injury.
If it had been clearly shown that the very nature of appellant's injury was such that the delay in giving notice was not material, or, stated differently, that appellee's rights could not have been prejudiced by the delay, the argument that notice was given in reasonable time might be plausible; but even so, it is our view that that part of the statute requiring notice of an injury to be given as soon as practicable is as mandatory in its nature as it is in requiring notice at all, and if there is delay in giving notice, the burden is upon the injured person to show that it was not practicable to give notice *Page 648
sooner. While the rule of liberal construction will be applied to the workmen's compensation statutes, yet, liberal construction does not mean total disregard for the statute, or repeal of it under the guise of construction. And furthermore, it must not be forgotten that the very nature of appellant's injury was such that needed immediate attention. Hernia is a progressive injury and will increase with time. Whether or not appellant's hernia was an old one or a fresh one sustained at the time he claims was indeed of much importance to appellee, since, if it was of the former class, appellee would not have been liable. And, if appellant had received immediate treatment, his disability, in all reasonable probability, might have been lessened if not entirely cured. Appellee was entitled to the benefit of an early opportunity to ascertain whether appellant sustained the hernia at the time claimed by him or whether it existed previous thereto, and also an opportunity to have him treated in an effort to cure, or, at the least, minimize the extent of his disability. See 107 A.L.R. Annotation, at page 816, wherein it is said:
"The purpose of a notice of injury is to give the employer an opportunity to examine into the alleged accident and injury while the facts are accessible, and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and minimize the loss. Littleton v. Grand Trunk Ry. Company (1936) [276 Mich. 41], 267 N.W. 781." See also, to the same effect, 92 A.L.R. Annotation, beginning on page 505, citing the case of Frost v. Idaho Gold Dredging Company, 1934, 54 Idaho 312, 31 P.2d 270.
Section 4884 of the Kentucky Statutes, among other things, provides that:
"In all claims for hernia resulting from injury received in the course of and resulting from the employee's employment it must be definitely proved to the satisfaction of the board: One. That there was an injury resulting in hernia. Two. That the hernia appeared suddenly and immediately following the injury. Three. That the hernia did not exist in any degree prior to the injury for which compensation is claimed. * * *"
It may readily be seen that appellee might have been deprived of the defense provided in the statute, because *Page 649
of the delay in giving notice, since, as we have already noted, it is shown by medical testimony that at the time the doctors examined appellant they could not determine whether the hernia was of recent origin or of long standing. It appears from appellant's own testimony that while he did not know at the time that his injury was in the nature of a hernia, yet he indicated that he strongly suspected that it was; and, further, on November 10th, Dr. Osborne told him that he had a hernia, but he did not report the injury to his employer for 54 days after receiving this positive information from the doctor, and frankly admits that he withheld the information for the sole purpose of avoiding treatment in order that he might work during the holiday season which was more remunerative to him, since he was working on commission.
In the Turner, Day Woolworth Handle Company case, supra, it is held that the statutory limitation period commences to run from the time when it becomes reasonably apparent that a compensable injury has been sustained. In the present case it was reasonably apparent to appellant that he had sustained a compensable injury at the time he claims to have received it on November 4th, and in no event later than November 10th, when Dr. Osborne told him he had hernia. Hence, there is no escape from the conclusion that the statute requiring him to give notice to his employer as soon as practicable after he received the injury, commenced running not later than November 10th, at which time he was still in the employ of appellee and had every opportunity to notify it of his injury, but for reasons stated above, he failed to do so for 54 days thereafter. By no stretch of the imagination could it be said that appellant notified appellee of his injury, which he knew was a compensable one, as soon as practicable after he knew it.
(b) It is next insisted that appellant's failure to give notice as required by the statute was a defensive plea which should have been pleaded by appellee at least five days before the date the case was set for hearing, as provided in Rule 15 of the Rules of Practice and Procedure in the Trial of Compensation Cases. The second paragraph of that rule reads as follows:
"If the defendants rely upon the special defense that the injury or death of the employee was due to the willful misconduct of the employee, including intentional self-inflicted injury, intoxication, willful *Page 650
failure or refusal to perform a duty required by a statute or invoking any other provisions of this act relating to the reduction or forfeiture of compensation, or any other defense or confession and avoidance, such special defense must be pleaded by an affirmative answer at least five days before the date set for the hearing."
It is to be noticed that the things enumerated in that rule are read in connection with and have reference to "willful misconduct of the employee," which relates to some duty required by the statute relating to the injury or death of the employee, or relating to the reduction or forfeiture of compensation. We do not construe the rule to have any connection with or relation to notice of injury, as provided in Section 4914 of the Statutes.
A claimant for compensation has the burden of establishing his case and to do so, it is incumbent upon him to show, among other things, that he received an injury; that it arose out of and in the course of his employment, and that he notified his employer of the injury as required by the statute. These are fundamental pre-requisites to the right of maintaining an action for compensation.
It is our view that the purpose of Rule 15, supra, is to apprise the claimant of any special defense in order that he may be prepared to meet the issue. But we do not think it is necessary for the employer to plead as a special defense under Rule 15 the employee's failure to observe plain statutory provisions which are essential to his right to maintain his claim. It follows that there is no merit in appellant's contention on this point.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3228987/ | Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3228988/ | Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444489/ | Affirming.
For the killing of Will McWhorter, colored, the appellants, Everett Tuggle and Arthur Barton, were convicted of manslaughter and sentenced to serve fifteen years in prison. The homicide occurred at what is called throughout the record a "beer joint," three miles south of Hazard, about 2 o'clock in the morning, one night in July, 1934. Earlier in the night McWhorter's automobile had run out of gasoline nearby and at the place Barton let him have about two gallons taken from the tank of his taxicab. There was a quarrel over this, but it seems some one paid for the gasoline, and the parties separated. A few hours later McWhorter returned, according to the commonwealth's evidence, for the purpose of taking Charlie Wallace and another to Glomarr, a nearby village, where he was to get some money with which to buy McWhorter's pistol. While McWhorter was in his machine, Tuggle went to it with a pistol in his hand and wanted to know why he was running a taxi without a license. Some words passed between them, and Barton standing nearby called: "Shoot him, Everett, shoot him!" Whereupon Tuggle began shooting Mcwhorter, who had one arm in the open window of his car door and the other on the steering wheel. The car started moving and then McWhorter returned the fire. The door came open and he fell to the ground. No one went to his assistance for several hours, when he was found dead. He was shot five times in and about his head and shoulders. Neither Tuggle nor Barton was shot. They are cousins. There is some other evidence tending to show a concert of action.
The substance of the defendants' evidence is that the previous difficulty was over, although Barton had not beer paid for the gasoline. Barton had carried several taxi passengers to their destinations, and was *Page 442
again passing the place when one of his passengers suggested stopping for a bottle of beer. McWhorter drove up and, seeing the taxicab, asked who was running it. Barton went out and told him that he was, and the colored man asked if he was the man who had sold him the gasoline and demanded that he take his foot off the running board of his car or "I'll shoot you in two." McWhorter had a pistol in his hand, and as he raised it Barton grabbed it. The pistol went off, and Barton fell back to the ground, and some one holloed: "That nigger has killed Arthur Barton." Tuggle was standing about three feet away, and testifies that the blaze of the pistol's discharge came in his direction and he started shooting in self-defense.
There are several witnesses on each side, and important details were related; but it is apparent without further narration that there was no place for a directed verdict of acquittal as the appellants argue.
The indictment charged that one of the defendants had done the actual killing and the other was present "aiding and abetting and counseling and advising the same." The instruction authorized a conviction of Barton if the jury believed beyond a reasonable doubt that he did "aid, abet, advise, counsel, encourage and command" Tuggle to so shoot and wound McWhorter. It is claimed that prejudicial error was committed by the use of the additional phrase "encourage and command," since neither method of abetting the crime was charged in the indictment. We think such acts were embraced in the other descriptive methods. For practical purposes in this connection all the words are synonymous. It is to be noted the several methods were conjunctively rather than disjunctively submitted. The result was favorable to the defendant Barton, since, strictly interpreted, the jury was required to believe that each and every act or method of abetting was committed by him instead of only one of them.
The trial was had in February, 1935, but the ruling on the motion for a new trial was suspended for some time, apparently because of the illness of one of the defendants. In May supplemental grounds were filed, charging misconduct of a juror, Mrs. Marie Baker. This was in two distinct particulars.
One Clay Collins made an affidavit that on some undisclosed day prior to the trial while he was being *Page 443
conveyed as a prisoner from Tennessee to Hazard by John Baker, a deputy sheriff who is the husband of Mrs. Marie Baker, he and Baker discussed the homicide in her presence. Baker remarked that "they must be guilty because they had run off and it had been a hard job to get them back to Hazard for trial." There was no expression of opinion or indication of prejudice by Mrs. Baker. It has been often ruled that proof of bias by a juror must show that it existed at the time of the trial and it must be established by clear and convincing evidence. Chilton v. Commonwealth, 170 Ky. 491, 186 S.W. 191, Ann. Cas. 1918B, 851; Canter v. Commonwealth, 176 Ky. 360, 195 S.W. 825; Shelton v. Commonwealth, 224 Ky. 671, 6 S.W.2d 1094. The court properly held this ground for a new trial insufficient.
J.L. Ward deposed that during the progress of the trial he went to the home of the juror, Mrs. Baker, to get her laundry. She came to the door and invited him into the room while she gathered the laundry. During the course of the conversation, she observed that "half of the young generation ought to be in the penitentiary." There was no guard or any other person in the room except Mrs. Baker's little girl, who was asleep. The affiant deposed that if the juror had a guard at the time he did not see or hear her.
The record discloses that there were eleven men and one woman, Mrs. Baker, on the jury. She was placed in the charge of Pearl Riley, who was sworn as her guard. There is no other proof concerning the alleged separation of the jurors in violation of the Code provision. Ward's affidavit does not in fact show that her guard as an officer of the court was not performing her duty. She could have been in an adjoining room with the door open and have been fully cognizant of what was going on. There is a presumption that an officer performed his duty. The showing made here is hardly sufficiently explicit or positive that the guard did not perform her sworn obligation. Although the juror made some general extravagant statement about "half of the young generation," it is not suggested she had reference to the case on trial or the conversation related to it.
The Criminal Code of Practice provision, section 244, requiring that members of a jury of the same sex *Page 444
shall be kept together in charge of officers on the trial of offenses which may be punished capitally or by life imprisonment, is for the purpose primarily of assuring freedom from influence or the reception of information concerning the case other than during the progress of the trial in open court. It is in supplement of section 246, concerning the duty of jurors not to discuss the case among themselves or permit any one else to communicate with or speak to them on any subject connected with the trial. The trend of the rulings has been toward a liberal application and a construction that a substantial compliance with the statute was sufficient unless there was some fact or circumstance disclosed which indicated in some degree that a juror had been approached or an opportunity afforded for influencing him. Thus where the entire jury was so quartered or situated as to be under the eye and within the hearing of the deputy sheriff or guard, and it did not appear that there was any attempt to communicate with any separated juror, it is held not sufficient to warrant a new trial. Barnes v. Commonwealth, 179 Ky. 725, 201 S.W. 318; Wynn v. Commonwealth, 188 Ky. 557, 222 S.W. 955; Shackelford v. Commonwealth, 185 Ky. 51, 214 S.W. 788; Adkins v. Commonwealth, 197 Ky. 385, 247 S.W. 26; York v. Commonwealth,201 Ky. 431, 257 S.W. 38; Wilson v. Commonwealth, 243 Ky. 333,48 S.W.2d 3; Morter v. Commonwealth, 248 Ky. 37,58 S.W.2d 224. Of course, different circumstances require different conclusions, not only as to whether the letter and the spirit of the statute were observed, but, of controlling importance, whether the transaction adversely affected the substantial rights of the defendant. There must always be kept in mind, particularly on a review by this court involving a discretionary action of the trial judge, the repeated admonition of the statute that a judgment of conviction shall not be set aside or reversed for any error when upon a consideration of the whole case the court is satisfied that the substantial rights of the defendant have not been prejudiced thereby. Sections 271, 340, Criminal Code of Practice.
Judgment affirmed. *Page 445 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444490/ | Affirming.
Maud Thompson sued the board of drainage commissioners of Muhlenberg county and Jethro and Albert Buchanan to recover $500 for timber cut from a tract of 124 acres of land which she alleged she owned and to obtain an injunction against further trespasses thereon, and having been unsuccessful she has appealed. To understand this lawsuit we must first look at two others which are set out in the pleadings.
The Drainage Suit.
The 124-acre tract of land described in the petition was prior to August, 1922, owned by the heirs of one Andrew Glenn and Sallie J. Thompson, and by a judgment of the Muhlenberg county court at its May term, 1922, 72.68 acres of said tract of land were included in drainage district No. 3 in Muhlenberg county, Ky., which was established by that judgment, and at the *Page 69
September term of said county court, these 72.68 acres of land were duly appraised and classified as required by law, and the assessment record and roll of said district was filed in said county court, November 14, 1922. The amount of the minimum district assessment against these 72.68 acres was fixed at $461.84, and the amount of the district interest assessment was $374.
On December 2, 1922, the board of drainage commissioners made and entered an order permitting the owners of land in the district to pay the minimum district assessments in cash on or before January 15, 1923. Sallie J. Thompson had acquired a small interest in the 124-acre tract of land, of which the 72.68 acres were a part, on or before August 23, 1922, and acquired the remaining interests December 16, 1922. Neither she nor the heirs of Andrew Glenn had paid the minimum district assessment in whole or in part on January 15, 1923, when the bonds of said district were issued against the tracts of land upon which the cash payments were not made under the 15-year payment plan as provided by law. The district register was duly made and approved by the court, and the annual payment assessed against this 72.68 acres of hind in the district register was $43.92. The first of the installments became due and delinquent on December 1, 1923, and the second, third, fourth, and fifth of said annual installments became due and delinquent on December 1, 1924, 1925, 1926, and 1927, respectively; and Sallie J. Thompson failed and refused to pay any of said annual installments, or any part thereof.
Suit to Collect Assessments.
Assessments due in 1923, 1924, 1925, 1926, and 1927 not being paid, this 72.68 acres was sold by the sheriff and purchased by the board.
On December 1, 1928, the sixth of these assessments was due and delinquent. On December 29, 1928, the board of drainage commissioners filed their action in equity in the Muhlenberg circuit court describing this 72.68 acres, and setting up the foregoing and other facts necessary under section 2380b-30, Ky. Stats., to enforce their lien against the said tract of land. Sallie J. Thompson and her husband, J.M. Thompson, were served with summons. This summons is in the usual form, was directed to the sheriff of Warren county, *Page 70
where Mr. and Mrs. Thompson then resided, and the return thereon is: "Executed by delivering a true, copy of the within summons to each Sallie J. Thompson and J.M. Thompson, this January 14, 1929. H. Lee Kelly, S.W. C. by Roy Mouller, D. S." Judgment and order of sale of the 72.68 acres was entered September 21, 1929. The property was advertised, was appraised, and on October 28, 1929, it was sold, and the board of drainage commissioners became the purchaser. On January 14, 1930, sale was reported, January 21 the sale was confirmed, and September 25, 1931, a deed was made to the purchaser. The board thereafter leased this 72.68 acres to Jethro Buchanan, who entered upon it and began cutting timber, which started this litigation.
Maud Thompson's Title.
On January 31, 1929, Sallie J. Thompson and her husband, J.M. Thompson, executed a deed to their daughter, Maud Thompson, by which they conveyed to her several tracts of land, and while the 124 acres of land described in Maud Thompson's petition was not included, it was intended to be included, and has been included by a subsequent deed, and for the purpose of this opinion we shall treat it as though it had been correctly described and included in the deed of January 31, 1929.
The Suit Before Us.
The board and its lessee, Buchanan, in their answer set up with elaboration the proceedings had in the drainage suit and the suit to collect assessments, the lease of the 72.68 acres to Buchanan, and alleged that J.M. Thompson, acting either as agent of his wife or his daughter, Maud Thompson, had entered on this 72.68 acres and had cut and removed $300 worth of timber. They made Sallie J. Thompson and J.M. Thompson parties, prayed judgment against them and Maud Thompson therefor, that the petition of Maud Thompson be dismissed, etc.
Reply.
Maud Thompson by reply denied everything set up in the suit to collect assessments. The court sustained a demurrer to this reply, Miss Thompson declined to plead further, her petition was dismissed, and she and *Page 71
her father and mother were perpetually enjoined from asserting ownership of, entering upon, or otherwise disturbing the board of drainage commissioners or Jethro Buchanan in ownership, use, and enjoyment of the 72.68 acres, to which Maud Thompson alone excepted and prayed, and has prosecuted this appeal.
Alleged Errors.
Maud Thompson admits that her attack upon the judgments rendered in the drainage suit and in the suit to collect assessments is collateral, but as she had in her reply denied every allegation as to what had been done in them, and had denied that process had been served upon her father and mother, which things must be taken as true in passing upon the demurrer, she now contends that by her reply when taken as true it is shown, so she contends, that the judgment in the suit to collect, assessments was rendered by the court without service of process upon her parents, and hence the court had then no jurisdiction of them, and its judgment is void.
The Officer's Return.
When this process was put in the hands of the officer it was his duty to serve it on Mr. and Mrs. Thompson and to make return showing what he did. We have set out above the return he made. The defendants made this summons and return parts of their pleading, and our question relates to the effect of the plaintiff's denial that service was made.
This service was a matter about which this officer was required to make a certificate, he made it, and it is set up in pleading, and plaintiff is attacking it. By section 3760, Ky. Stats., there are only three circumstances in which an attack upon an officer's certificate is permissible: (a) In a direct proceeding against the officer; (b) upon an allegation of fraud in the party benefited thereby; (c) upon an allegation of mistake on the part of the officer.
Miss Thompson has not attacked this return by any of those ways. There are no other ways. Therefore, her attack on this return is unavailing, the judgment in the suit to collect assessments is not void, and Miss Thompson is bound thereby as we shall show.
Sections 2358a-1 and 2380b-52 Ky. Stats. *Page 72
While the drainage suit was pending Mrs. Thompson purchased the larger part of this 124 acres, and while the suit to collect assessments was pending Mrs. Thompson and her husband conveyed this 124 acres to their daughter, Maud Thompson. No lis pendens notice was ever filed in the county clerk's office as contemplated by section 2358a-1, therefore these ladies say they are not bound by subsequent proceedings in those suits. If section 2358a-1 stood alone their position would be correct, but after enacting section 2358a-1 et seq. in 1896, the Legislature in 1918 created an exception to it in certain cases. See section 2380b-52. Therefore, this position taken by these ladies cannot be sustained.
There is a vast difference between the attack here made on these judgments and the attack made upon the judgment in Francis v. Lilly's Executrix, 124 Ky. 230, 98 S.W. 996, 30 Ky. Law Rep. 391.
Miss Maud insists that her mother had for five years under sections 4156 and 4160, Ky. Stats., the right to redeem this land, but there is no question in this for us to decide, as her mother has never offered to redeem, so that question is not here. Miss Maud has attacked the description of the 72.68 acres as given in the suit to collect assessments, but at the most that would only render the judgment erroneous; it would not make that judgment void. Hence, if it were conceded this rendered the judgment erroneous, that is a matter not available in a collateral attack.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2452253/ | 231 F. Supp. 2d 1 (2002)
James CAMPBELL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
No. CIV.A. 89-3016(RMU).
United States District Court, District of Columbia.
June 20, 2002.
*2 *3 James Hiram Lesar, Washington, DC, Mark Steven Zaid, Krieger and Zaid, Washington, DC, for Plaintiff.
Marina Utgoff Braswell, Michael Thomas Ambrosino, Fred E. Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
URBINA, District Judge.
DENYING THE PLAINTIFF'S MOTION FOR PARTIAL RECONSIDERATION; DENYING THE DEFENDANT'S MOTION TO ALTER OR AMEND THE JUDGMENT; DENYING THE DEFENDANT'S MOTION FOR A PROTECTIVE ORDER
I. INTRODUCTION
The D.C. Circuit reviewed and remanded this 13-year-old Freedom of Information Act ("FOIA") case after providing the applicable guidelines in evaluating the national security justifications under FOIA's exemption 1, codified as 5 U.S.C. § 552(b)(1). Campbell v. United States Dep't of Justice, 164 F.3d 20 (D.C.Cir. 1998). After applying the guidelines set forth in the D.C. Circuit's decision, this court issued a Memorandum Opinion and supplemental order on September 28, 2001 denying the defendant's motion for summary judgment. As part of that ruling, the court also granted the plaintiff's motion for limited discovery as to the location and contents of the disputed tickler files to assist the plaintiff and this court in gauging the adequacy of the Federal Bureau of Investigation's ("FBI") search. The matter now comes before the court on the plaintiff's motion for partial reconsideration[1] of the court's September 28, 2001 Memorandum Opinion and supplemental order, the defendant's motion to alter or amend that same judgment, and the defendant's motion for a protective order staying the limited discovery allowed by the court. After considering the parties' submissions, the applicable law, and the substantial record herein, the court denies the plaintiff's and the defendant's respective motions.
II. BACKGROUND
A. Factual History
The facts giving rise to the plaintiff's claims are set forth in the D.C. Circuit's opinion, which reversed this court's decision denying the plaintiff's claims. Campbell, 164 F.3d 20. The plaintiff is a journalist and author commissioned by two London publishers to write a biography about the 1960s writer and civil-rights activist *4 James Baldwin. Compl. ¶ 4. On May 10, 1988, in the course of conducting his research, the plaintiff filed a FOIA request with the FBI's New York office seeking to obtain the FBI's "file" pertaining to James Baldwin. Id. Shortly thereafter, the FBI informed the plaintiff that his request was being forwarded to FBI headquarters for processing. Id. ¶ 5. Because of the sheer number of responsive documents combined with the overall number of FOIA requests, the FBI notified the plaintiff in September 1988 that his request would be dealt with in the order that it was received and that the FBI denied the plaintiff's request for expedited treatment. Id. ¶¶ 9-11. Following a flurry of written correspondence and the release of relatively few documents, the plaintiff filed his initial complaint on November 2, 1989, seeking to compel the FBI to expedite his request for the documents. Id. ¶¶ 1, 3. The defendant, the U.S. Department of Justice, represents the FBI in this action.
B. Procedural History
1. The Plaintiff's Initial Complaint and Proceedings
After the plaintiff's initial filing, Judge Pratt denied the plaintiff's request for expedited review and required the FBI to file a status report updating its progress as to its search for documents responsive to the plaintiff's request. Order dated Dec. 14, 1989 (Pratt, J.). That same day, the FBI released about 1,000 documents that were responsive to the plaintiff's request. Campbell v. United States Dep't of Justice, 1996 U.S. Dist. LEXIS 14996, at *4, 1996 WL 554511, at *1 (D.D.C.1996). On March 13, 1990, both the FBI and the Central Intelligence Agency ("CIA") released more documents relevant to the plaintiff's request. Id. at *5, 1996 WL 554511 at *1. Over the course of the next several years, Judge Pratt issued multiple stays giving the government more time to conduct reviews of withheld documents in light of new Supreme Court precedent and Executive Agency Guidelines.[2]Id. As a result of these reviews, the defendant declassified and released more documents to the plaintiff. Id. at *6, 1996 WL 554511 at *1. The defendant filed a motion for summary judgment in August 1990 and the plaintiff filed his motion for summary judgment in February 1995. In October 1995, the case was transferred to the below-signed member of this court. In June 1996, the parties filed their final briefings on the cross-motions for summary judgment and the case became ripe for decision.
This court initially granted in part and denied in part without prejudice the defendant's motion for summary judgment and granted in part and denied in part without prejudice the plaintiff's motion for summary judgment. Id. The court also ordered an in camera review of certain documents to determine the applicability of FOIA exemption 7(E), which affords protection to information that "would disclose techniques and procedures for law enforcement investigations or prosecutions ...." Id.; 5 U.S.C. § 552(b)(7)(E). Subsequently, the court granted in part the remainder of the defendant's summary judgment motion. Order dated Aug. 6, 1997.
*5 2. The Appeal, Remand, and Subsequent Ruling on the Parties' Cross-Motions for Summary Judgment
As previously stated, the plaintiff appealed the court's ruling on the summary judgment motions to the D.C. Circuit. The plaintiff argued that the FBI's search for documents responsive to his request was inadequate and that the documented support invoking the FOIA exemptions was "insufficiently detailed to establish the absence of a genuine dispute of material fact." Campbell, 164 F.3d at 26. The D.C. Circuit agreed with the plaintiff and reversed and remanded the case back to this court with directions to the FBI to search the electronic surveillance index ("ELSUR")[3] and tickler files[4] and to justify with sufficient detail its decisions to withhold information pursuant to FOIA exemptions 1,[5] 7(C),[6] and 7(D),[7] codified respectively as 5 U.S.C. §§ 552(b)(1), (b)(7)(C), (b)(7)(D). Id. at 36.
Cognizant of the mandate and standards established by the Court of Appeals, the FBI reevaluated its documents, conducted new searches and subsequently filed a new motion for summary judgment. Def.'s Mot. for Summ. J. at 1. The new motion asserted that the FBI had complied in full with the standards as directed by the D.C. Circuit. Id. The plaintiff filed an opposition claiming that the FBI had still failed to conduct an adequate search and disputing many of the exemptions claimed by the government. See generally Pl.'s Mot. for Summ. J. With cross-motions for summary judgment filed, a declaration provided by the FBI's FOIA officer, Scott Hodes ("Mr. Hodes"), along with a Vaughn Index, this court oversaw the remand ordered by the D.C. Circuit and determined whether compliance with that remand order had been achieved by the defendant.
In doing so, the court granted the defendant's motion for summary judgment with respect to FOIA exemptions 7, 7(C), and 7(D) because the court concluded that the defendant satisfied the D.C. Circuit's directives respecting those exemptions. Mem. Op. dated Sept. 28, 2001 at 15-24. The court, however, was not persuaded by the adequacy of the defendant's search or its withholding of files pursuant to exemption *6 1, and it denied the defendant's motion for summary judgment on that count. Id. at 7-14. Accordingly, the court granted the plaintiff's motion for summary judgment as to the adequacy of the search and the defendant's reliance on exemption 1 but denied the plaintiff's motion for summary judgment in all other respects. Id. In granting the plaintiff's motion for summary judgment as to the adequacy of the search, the court also allowed the plaintiff to conduct limited discovery as to the location and contents of the disputed tickler files. Id. at 10. In addition, in an October 4, 2001 order, this court directed the defendant to show cause as to why the defendant failed to comply with the D.C. Circuit's mandate in this case. See Order dated Oct. 4, 2001 ("Show Cause Order"). The defendant filed its response to the court's show cause order on October 16, 2001, contemporaneously with its pending motion to alter or amend the judgment. The plaintiff also filed his "motion for partial reconsideration" on October 16, 2001.[8] In his motion, the plaintiff requests the court to alter its decision granting summary judgment to the defendant for FOIA exemption 7(C), which allows the defendant in some circumstances to withhold information that may result in the invasion of an individual's privacy. Pl.'s Mot. for Recons.
The defendant, in turn, asks the court to alter or amend its decision granting the plaintiff's motion for summary judgment as to the adequacy of the defendant's search for the location and contents of tickler files and the allowance of limited discovery for those files. Def.'s Mot. to Alter or Amend J. ("Def.'s Mot.") at 1-3. In that regard, the defendant requests that the court reverse its decision denying that portion of the defendant's motion for summary judgment regarding exemption 1, which allows non-disclosure of certain documents for the purpose of national security. Id. at 3-8; 5 U.S.C. § 552(b)(1). In addition, on November 5, 2001, the defendant filed a motion for a protective order staying the court's prescribed limited discovery pursuant to Federal Rule of Civil Procedure 26(c).[9] Def.'s Mot. for Protective Order ("Def.'s Prot. Mot."). For the reasons that follow, the court denies the plaintiff's and the defendant's motions.
III. ANALYSIS
A. Legal Standards of Review
1. Legal Standard for Altering or Amending an Interlocutory Judgment
A district court may revise its own interlocutory decisions "at any time *7 before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.2000) (citing Federal Rule of Civil Procedure 60(b)'s Advisory Committee Notes). This court notes that the standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n. 6 (D.D.C.2001) and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C.1992) (Hogan, J.) with LaRouche v. Dep't of Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C.2000) (Lamberth, J.) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C.1996) (Richey, J.). A motion pursuant to 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F.Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam). Consequently, motions pursuant to Rule 60(b) may be granted for similar reasons. FED. R. CIV. P. 60(b); LaRouche, 112 F.Supp.2d at 51-52. Reconsideration of an interlocutory decision is available under the standard, "as justice requires." Childers, 197 F.R.D. at 190.
2. Legal Standard for the Issuance of a Protective Order
Protective orders are issued for good cause shown and to prevent annoyance, embarrassment, oppression, undue burden, or expense. FED. R. CIV. P. 26(c). A motion for a protective order usually follows the movant's unsuccessful attempt and both parties' good faith efforts to resolve the matter. Id. A protective order may, inter alia, deny discovery completely, limit the conditions, time, place, or topics of discovery, or limit the manner in which the confidential information is to be revealed. Id.; Burka v. Dep't of Health and Human Servs., 87 F.3d 508, 518 (D.C.Cir.1996). The moving party bears the burden of showing that there is good cause for the issuance of the order. FED. R. CIV. P. 26(c). Since such a motion limits the liberal discovery rules, "good cause" is only established when the movant demonstrates that disclosure would cause a clearly defined and serious injury. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir.1995). A district court may not grant a protective order without a showing of good cause. EEOC v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1411 (D.C.Cir.1996). In assessing good cause, a district court must exercise its discretion in light of the relevant facts and circumstances of the particular case. Tavoulareas v. Washington Post Co., 111 F.R.D. 653 (D.D.C.1986) (Gasch, J.) (applying Nixon v. Warner Comm., Inc., 435 U.S. 589, 599, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978) (holding that the assessment of the common law right of access to information is best left to the discretion of the trial court)). A mere showing that discovery may involve inconvenience and expense will not meet this threshold requirement. Lehnert v. Ferris Faculty Ass'n-MEA-NEA, 556 F. Supp. 316, 318 (W.D.Mich. 1983). Furthermore, if a court were to issue the protective order, the court must articulate specific facts justifying a protective order since that is imperative to ensure adequate appellate review. See Nat'l Children's Ctr., 98 F.3d at 1411.
B. The Court Denies the Plaintiff's "Motion for Partial Reconsideration"
As a preliminary matter, and as alluded to earlier, the court here is faced with *8 cross-motions to alter or amend its September 28, 2001 ruling an interlocutory judgment because it does not dispose of the whole case on its merits and, thus, does not qualify as a final decision. FED. R. CIV. P. 54(b); John Thompson Beacon Windows, Ltd. v. Ferro, Inc., 232 F.2d 366, 368 (D.C.Cir.1956) (quoting Bostwick v. Brinkerhoff, 106 U.S. 3, 4, 1 S. Ct. 15, 27 L. Ed. 73 (1882)); Ford Motor Co. v. Transport Indemnity Co., 795 F.2d 538, 543 (6th Cir.1986) (quoting Bostwick, 106 U.S. at 4, 1 S. Ct. 15).
The plaintiff's instant motion specifically targets that portion of the court's September 28, 2001 Memorandum Opinion that grants the defendant summary judgment with respect to the defendant's withholding of information pursuant to FOIA exemption 7(C). Under exemption 7(C), information may be withheld if it "could reasonably be expected to constitute an invasion of privacy." 5 U.S.C. § 552(b)(7)(C). "On this point, the Supreme Court has held that `[a]n agency may not withhold records under exemption 7(C) solely because disclosure would infringe legitimate privacy interests, but must balance privacy interests against the public's interest in learning about the operations of its government.'" Mem. Op. dated Sept. 28, 2001 at 18 (quoting Campbell, 164 F.3d at 33 (relying on United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495, 114 S. Ct. 1006, 127 L. Ed. 2d 325 (1994))).
"Both the circuit court and the plaintiff have articulated concern about the issue of invoking exemption 7(C) as to persons who are deceased." Id.; see also Campbell, 164 F.3d at 33; Pl.'s Mot. for Summ. J. at 41. In its September 28, 2001 Memorandum Opinion, "the court ... under the circuit court's mandate and as argued by the parties, assess[ed] the effect that death has on the balancing test to ensure that the FBI makes a `reasonable effort to account for the death of a person on whose behalf the FBI invokes exemption 7(C).'" Id. at 19 (quoting Campbell, 164 F.3d at 33). In assessing this issue, the court "held that the ... [FBI] has made adequate efforts to determine whether the persons who are subjects of information withheld on privacy grounds are still living." Mem. Op. dated Sept. 28, 2001 at 22. The plaintiff, nevertheless, "requests that the court reconsider its ruling with regard to the sufficiency of the ... [FBI's] efforts ...." Pl.'s Mot. at 3.
The plaintiff contends that the court should have ordered the defendant to make a more thorough search regarding the status of individuals who are the subject of information withheld on privacy grounds. Pl.'s Mot. This contention rests on the plaintiff's assertion that the defendant "could have used the Social Security Death Benefits Index [("SSDBI")] via the Internet to determine whether any of the people were dead." Id. at 1. The plaintiff attempts to bolster this point by referring to a recently decided case by the D.C. Circuit that the plaintiff claims "clearly implied that the [SSDBI] may be a database which should be searched." Pl.'s Mot. at 2 (referring to Schrecker v. Dep't of Justice, 254 F.3d 162 (D.C.Cir.2001)). The court is not persuaded by this rationale because Schrecker was decided in a different context with different facts, and, more importantly, because the D.C. Circuit in Schrecker did not hold that utilization of the SSDBI is a necessary prerequisite for an adequate search in any case. See Schrecker, 254 F.3d at 166-67. As the plaintiff himself posits, the D.C. Circuit's position as annunciated in Schrecker, at best, merely "implie[s] that the [SSDBI] may be a database which should be searched." Pl.'s Mot. for at 2 (emphasis added). Notwithstanding the utilization or non-utilization of the SSDBI to determine the status of individuals who are the subject of information withheld on privacy *9 grounds, this court has already "conclude[d] that the information contained in the record before the court adequately balances the competing public interest and the private interests and pays proper respect to the issue of death of the individuals involved." Mem. Op. dated Sept. 28, 2001 at 22. The Schrecker case does not state that the SSDBI must be utilized in order for such a search to be considered adequate or reasonable an important distinction that the defendant correctly notes. For the same reason, the court sustains its original determination that the defendant has demonstrated "adequate efforts" in that regard. Id. Indeed, the mere possibility that the SSBDI could be a useful resource in this context is not enough to warrant a change in the court's previous ruling since the court does not believe that "justice requires" such a change. Childers, 197 F.R.D. at 190. Accordingly, the court denies the plaintiff's motion.
C. The Court Denies the Defendant's Motion to Alter or Amend the Judgment
The defendant's motion asks the court to alter or amend that portion of its September 28, 2001 Memorandum Opinion denying the defendant's motion for summary judgment as to the adequacy of the FBI's search concerning the location and contents of tickler files, and, in turn, granting the plaintiff's motion for limited discovery of those files. Def.'s Mot. at 2-3.
1. The Adequacy of the Search for Tickler Files
Turning first to the FBI's search for the tickler files, when this court decided the adequacy of the FBI's search at the summary judgment stage, "the agency ha[d] the burden to show ... that it searched all likely locations to contain responsive materials." Mem. Op. dated Sept. 28, 2001 at 8 (relying on Oglesby, 920 F.2d at 68). At that time, the court determined that "the FBI's failure to adequately search for the ticklers ... constitute[d] grounds to declare the search inadequate." Id. at 10 (relying on Schrecker, 254 F.3d at 165). As a result, this court granted the plaintiff the right to limited discovery as to the tickler files. Id. at 10.
Given the fact that this court has already authorized discovery and the defendant is simply trying to relitigate the issue, the court denies the defendant's motion on this point. The court still recognizes, however, the defendant's contention that the discovery of the tickler files "is an issue that would be addressed in the [defendant's] supplemental declaration,"[10] a declaration that the defendant claims "should eliminate the need for any discovery." Pl.'s Opp'n at 2; Def.'s Mot. at 3. The defendant filed that supplemental declaration on March 27, 2002. The court addresses the adequacy of the FBI's search for the ticklers later in this opinion in conjunction with the court's evaluation of the defendant's motion seeking a protective order staying the court's prescribed discovery for the location and content of those tickler files. Supra at III.E.
2. FOIA Exemption 1 (National Security)
Moving next to the defendant's challenge to this court's decision authorizing limited discovery of the tickler files, the *10 court has delineated how the defendant could withhold files pursuant to exemption 1:
[T]he "national security exemption" to FOIA allows the withholding of information "specifically, authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy." See 5 U.S.C. § 552(b)(1)(A). Under this exemption, it is well-settled law that "[a]n agency bears the burden to justify exemptions under FOIA." See Campbell, 164 F.3d at 30 (quoting PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 250 (D.C.Cir.1993)). To satisfy its burden, the subject agency may submit a declaration from a qualified individual attesting to the basis for the agency's withholding of information under the exemptions. See id.
Mem. Op. dated Sept. 28, 2001 at 11.
In analyzing the FBI's attempt to meet this burden, this court stated that after "thoroughly review[ing] the Executive Order, affidavits, and indices submitted by the FBI, the court deems them to be in some respects consistent with the precedent of this circuit, while in other respects still lacking the detail and specificity required." Id. at 12-13. This is because, "[t]ime and again, the [FBI simply posits that] `the disclosure of [the] information [in question] could reasonably be expected to cause serious damage to the national security ....'" Id. at 14 (quoting Hodes Decl., Exs.). As this court has stated, "[r]eliance on this vague and, at best, ambiguous standard is not sufficient under the precedent of this circuit." Id. (relying on Campbell, 164 F.3d 20).
The defendant asks the court to reconsider its analysis of the exemption 1 issue, and states that the exemption 1 "standard ... set forth in the Executive Order ... involves the exercise of judgment based on knowledge of information that can be publicly released and that cannot be released." Id. at 7.[11] The court acknowledges that "`substantial weight' is merited to the agency's national security determinations." Mem. Op. dated Sept. 28, 2001 at 11 (quoting Campbell, 164 F.3d at 30 (citing King v. United States Dep't of Justice, 830 F.2d 210, 218 (D.C.Cir.1987))). In giving due deference to the judgment of the defendant on the national security issue, however, this court has also stated that the defendant must afford "the district court an adequate foundation to review ... the soundness of the withholding." Campbell, 164 F.3d at 30 (quoting King, 830 F.2d at 218). Thus, "[d]espite such deference attributed [to the agency] by the courts," the declaration must meet certain standards in order to justify a grant of summary judgment. Mem. Op. dated Sept. 28, 2001 at 11.
As explained earlier and in the September 28, 2001 Memorandum Opinion, the defendant did not meet these standards. Infra at III.C.2.; Mem. Op. dated Sept. 28, 2001 at 10-15. The defendant also fails to meet the standard necessary to cause this court to alter or amend its prior interlocutory ruling on this matter. Indeed, this court is not convinced that "justice requires" reconsideration of that ruling. Childers, 197 F.R.D. at 190. Accordingly, the court denies the defendant's motion as to FOIA exemption 1.
D. The Defendant Has Complied with the Court's Order Directing the Defendant to Show Cause for Withholding Documents Pursuant to FOIA Exemption 1
While the defendant did not meet the exemption 1 requirements previously provided *11 by the D.C. Circuit in its attempt to attain summary judgment, the court determines that the defendant now meets the D.C. Circuit's exemption 1 requirements as a result of the defendant's response to this court's October 4, 2001 show cause order. See Campbell, 164 F.3d at 29-31.
Indeed, in its response to the court's show cause order, the defendant complies with the circuit court's mandate by providing the plaintiff with "a meaningful opportunity to contest, and the ... court [with] an adequate foundation to review the soundness of [its] withholding [pursuant to exemption 1]." Campbell, 164 F.3d at 30 (citation omitted). The defendant's supplemental declarations by Mr. Hodes of the FBI, which were made after the issuance of the court's show cause order, have supplied the court with "reasonable specificity [as to] why the documents fall within the exemption." Id.
In Mr. Hodes's second declaration of November 16, 2001, the FBI supplements the initial declaration of Mr. Hodes of November 9, 2000 with justification pages corresponding to each redaction or withholding that was asserted in the original declaration. Def.'s Resp. to Show Cause Order, Ex. A. The justification pages "describe[] all of the redactions line by line, detailing all of the classified information withheld." Id. at 3. This line-by-line explanation provided in the justification sheets, supplemented by cross-references to specific paragraphs of Mr. Hodes's November 9, 2002 declaration, brings the defendant into compliance with the D.C. Circuit's requirements for exemption 1 withholdings because it supplies the plaintiff with the specificity he needs to be able to contest the defendant's basis for the redactions, and also provides the court with the information necessary to evaluate whether that basis is sufficient to warrant the protection of exemption 1. Id. at 4; Campbell, 164 F.3d at 29-31.[12] In addition, on appeal, the D.C. Circuit stated that a "new declaration need not exhaustively explain each redaction and withholding, but it must provide sufficient information to permit Campbell and the district court to understand the foundation for and necessity of the FBI's classification decisions." Campbell, 164 F.3d at 31 (citation omitted).
Accordingly, the court determines that in its response to this court's show cause order, the defendant has supplied the plaintiff and the court with sufficient information to comply with the exemption 1 requirements handed down by the D.C. Circuit in this case. Id. at 29-31.
E. The Court Denies the Defendant's Motion for a Protective Order and Further Orders the Defendant to Immediately Permit the Plaintiff's Limited Discovery Pursuant to the Court's Prior Ruling
Having resolved the parties' respective motions to alter or amend the court's prior *12 judgment, the court now considers the defendant's motion seeking a protective order.
1. The Plaintiff's Discovery Requests and the Defendant's Failure to Comply with the Court's Prior Ruling
The court resolves that the defendant must allow the plaintiff to conduct the limited discovery granted by the court's September 28, 2001 Memorandum Opinion and supplemental order. Mem. Op. dated Sept. 28, 2001; Order dated Sept. 28, 2001. The plaintiff has propounded the following discovery requests on the defendant: (1) Notice of Deposition, (2) Request for Production of Documents, and (3) Second Request for Production of Documents. As stated earlier, the D.C. Circuit directed this court to review the adequacy of the search conducted for the tickler files after determining the FBI's search to be inadequate. Campbell, 164 F.3d at 29. The D.C. Circuit also afforded the FBI the opportunity to search for the tickler files and ELSUR records. Id. The scope of the search was defined by the plaintiff's initial FOIA request. Id. In applying the guidelines provided by the D.C. Circuit, this court denied the defendant's motion for summary judgment with respect to the adequacy of the search and granted the plaintiff's motion for limited discovery. Mem. Op. dated Sept. 28, 2001 at 10.
Since that grant of discovery for the plaintiff, the defendant has demonstrated its non-compliance with the D.C. Circuit's mandate and this court's prior ruling, which the court now reviews. This court directed the defendant to show cause as to why it failed to comply with the D.C. Circuit's 1998 mandate to search for the tickler files and ELSUR records. Campbell, 164 F.3d at 29; Show Cause Order. The defendant thereafter filed a response to the court's order and additionally filed its motion to alter or amend this court's judgment permitting further limited discovery. All the while, the defendant still did not allow the plaintiff to conduct limited discovery as this court directed, nor did the defendant complete the search for the tickler files. Def.'s Further Mem. in Support of Def.'s Prot. Mot. at 1. Instead, the defendant filed its motion for a protective order staying discovery.
2. The Defendant's Argument that Discovery was Premature is Moot
The defendant argues that this court's grant of discovery was premature because the FBI requested seven field offices to conduct hand or physical searches for the tickler files requested by the plaintiff. Def.'s Mem. in Support of Def.'s Prot. Mot. at 6. That superfluous argument and others requesting permission to allow the supplemental declaration[13] is now moot in *13 light of the fact that the supplemental declaration regarding the search of the seven offices is complete, a search that ultimately yielded no "tickler copies."[14] 5th Hodes Decl. at 9-10. Thus, the court will not address those arguments.
3. The Plaintiff's Discovery Requests Do Not Exceed the Court's Grant of Limited Discovery
The defendant claims that the plaintiff's discovery requests exceed this court's limited grant of discovery and, as such, amounts to the proverbial "camel's nose under the tent." Def.'s Mem. in Support of Def.'s Prot. Mot. at 7. Further, the defendant states that the plaintiff's counsel is using discovery to obtain material that he cannot discover through the FOIA request for information regarding the location and contents of the requested tickler files. 5th Hodes Decl. at 4. The plaintiff denies these charges vigorously. Pl.'s Mem. in Resp. to Def.'s Prot. Mot. at 4. Rather, the plaintiff asserts that he is using discovery for its appropriate purpose to aid the plaintiff in establishing where ticklers may be located and how they may be found. Id. The court agrees with the plaintiff's position because it is precisely why the court originally allowed limited discovery as to the location and contents of the disputed tickler files.
4. The Defendant Fails to Demonstrate the Necessary Predicates Under Rule 26 for the Issuance of a Protective Order
The federal rules caution seekers of protective orders that the scope of discovery is very broad. See FED. R. CIV. P. 26. In assessing the merits of the defendant's request, the court notes that a protective order can issue only if the defendant demonstrates the two predicates of "good cause" and the occurrence of "annoyance, embarrassment, oppression, undue burden or expense." FED. R. CIV. P. 26(c). The rule also provides that the movant the defendant herein must confer with the non-movant the plaintiff herein and make a good faith effort to resolve the discovery dispute without requesting the court's intervention. Id. There is no indication from the motions, however, that the defendant made a good faith effort to resolve the instant discovery dispute before resorting to the court for its assistance in resolving the issue. Additionally, the court directs the defendant's attention to the court's Initial Scheduling Order, which provides in relevant part that:
... counsel are required, under both Federal Rule of Civil Procedure 26(f) and Local Civil Rule 7.1(m), to confer in good faith in an effort to resolve any discovery dispute before bringing it to the court's attention. If, in what should be the unusual case, counsel are unable to resolve their dispute, counsel shall contact chambers in order to arrange for a telephone conference with the court. Counsel shall not file a discovery motion without prior consultation with opposing counsel. Leave of court is required before the filing of a discovery dispute-related motion. Counsel are advised that if the court is called upon to resolve such a motion, the losing attorney (not the principal) will be sanctioned pursuant *14 to Federal Rule of Civil Procedure 37(a)(4).
Init. Sched. Order ¶ 3; see also Standing Order ¶ 8.
While the defendant did seek leave from this court to file its instant discovery motion at the October 18, 2001 status hearing, and leave was granted by the court, that fact alone does not abrogate the requirement that the defendant consult with the plaintiff and make a good faith effort to resolve the discovery dispute before filing its discovery motion. Id. The defendant fails to show the court that these conciliable steps were taken before filing the instant motion. Despite the defendant's non-compliance with the federal rules, local rules, Initial Scheduling Order, and Standing Order, the court will in this instance proceed to assess the arguments posited by the defendant's motion.
Even if the defendant did attempt to reconcile the discovery dispute over the tickler files before filing its motion, the defendant still fails to demonstrate Rule 26's two predicates necessary for the issuance of a protective order. The "good cause" that satisfies the first predicate under Rule 26 must clearly define a serious injury. Glenmede Trust Co., 56 F.3d at 483. Moreover, broad allegations of harm, unsubstantiated by specific examples will not suffice. Id.; Nat'l Children's Ctr., 98 F.3d at 1411 (remanding case for the district court for specific reasons substantiating the grant of the protective order). Here, the FBI relies on the completion of the supplemental declaration to absolve the need for discovery, after asserting that no tickler files were found, and without allowing the plaintiff any means by which the plaintiff can determine the adequacy of the search. Def.'s Mem. in Support of Def.'s Prot. Mot. at 2. This does not comport with the legal standard necessary to prove the need for a protective order. In averring that substantial harm would ensue if the protective order is not issued, the defendant states that the allowed discovery would be highly burdensome on the FBI in conducting a hand search of all the files which are manually stored. Id.; Def.'s Not. of Filing 5th Hodes Decl. at 1-2. While good cause would ordinarily be established if the discovery at issue constitutes an undue burden, the trial court has the discretion to examine the facts and circumstances of the case to adjudicate the request for a protective order. Tavoulareas, 111 F.R.D. 653 (determining that lifting the seal on discovery materials would be an undue burden where reliance on the protective order facilitated trial preparation without abuse of the discovery process). The defendant, however, fails to show specific examples of a clearly defined harm or burden that would arise from the plaintiff's opportunity to understand the filing system where ticklers may be located and how they may be found. Pl.'s Resp. to Def.'s Prot. Mot. at 4. Moreover, at no time did the plaintiff request the hand search that the defendant says would be burdensome. The defendant's assertion merely reflects an inconvenience and expense that has no direct relation to the discovery request and, thus, poses no challenge to the prescribed discovery since conducting a hand search is a different issue from allowing the plaintiff the limited discovery to determine the location and contents of the disputed tickler files.
Glenmede Trust involved a trust company defendant represented by a law firm in a diversity action where the plaintiff alleged breach of fiduciary duty, fraud, breach of contract, and negligence all claims arising from the defendant's role in a stock repurchase transaction. Glenmede Trust, 56 F.3d at 478. The defendant and his law firm sought to reverse an order denying their request for a protective order *15 relating to all work performed for the client (i.e., the defendant) regarding the repurchase transaction. Id. The Third Circuit upheld the denial because the law firm failed to establish "good cause" for withholding all of the law firm's file documents pursuant to a confidentiality agreement between itself and the defendant. Id. The Third Circuit determined that generalized allegations of injury to reputation and relationships, and embarrassment that may result from dissemination of privileged documents was insufficient to justify judicial endorsement of an umbrella confidentiality agreement. Id. at 484.
Just as the defendant in Glenmede Trust alleged a generalized injury of its reputation and relationships with other clients, similarly, the defendant here alleges a generalized injury that compliance with the plaintiff's discovery request and this court's order for limited discovery would be a strain on its resources. Def.'s Prot. Mot. at 2. In addition, the defendant fails to state the specific injury that would justify as harsh a measure as the issuance of a protective order. To wit, throughout the course of its arguments[15] to the court, the defendant does not state with the requisite specificity exactly how the injury would occur, nor does the defendant put forward facts that satisfy the "good cause" requirement. In an attempt to satisfy the "good cause" requirement, the defendant simply posits that an undue burden will accrue to the defendant if the plaintiff's discovery is allowed to occur because of the overbreadth of the plaintiff's discovery request and the defendant's need to submit some of the requested information to the classification review process. Def.'s Prot. Mot. at 7-10. But such conclusory statements only go to show inconvenience and expense on the part of the defendant and are, therefore, not sufficient to demonstrate the good cause required for the issuance of a protective order. Lehnert, 556 F.Supp. at 318.
Furthermore, the Fifth Hodes Declaration makes much of the fact that since the ticklers were not located in the offices searched, then the only means left would be a hand or physical search of all the FBI files, which would impose a great burden on the FBI. 5th Hodes Decl. at 6. All the plaintiff wants, however, is to elicit information regarding the location and contents of the ticklers. Pl.'s Resp. to Def.'s Prot. Mot. at 4-6. Additionally, the plaintiff redacted his original discovery request, further limiting the plaintiff's discovery and even withdrawing a file requested in one instance. Id. at 5-6. As stated before, this discovery is necessary for the determination of the adequacy of the search conducted and to measure the level of compliance with the D.C. Circuit's mandate. Thus, the court denies the defendant's motion for a protective order and hereby directs the defendant to immediately comply with the plaintiff's discovery requests forthwith.
5. Compensation to the Plaintiff
Finally, the issue remains as to whether the defendant's counsel must pay for the plaintiff's attorneys' fees, costs, and expenses related to the plaintiff's opposition to the defendant's motion for a protective *16 order. The question answers itself. As spelled-out earlier, pursuant to Federal Rule of Civil Procedure 37(a)(4), the court will sanction the losing attorneys (not the principal). FED. R. CIV. P. 37(a)(4); Init. Sched. Order ¶ 3; Standing Order ¶ 8. Accordingly, the court further directs the defendant's counsel to pay the plaintiff's attorneys' fees, costs, and expenses relating to the defendant's motion for a protective order. In addition, the plaintiff has 30 days to submit a list of itemized expenses both to the defendant's counsel and the court so that the court can calculate the exact amount which the defendant's counsel must pay the plaintiff. The defendant's counsel is allowed to file a response to the plaintiff's itemized expenses due within five days from the date the plaintiff's submission is filed with the court.[16] An order listing the exact amount owed to the plaintiff by defense counsel will follow once the court receives the aforementioned submission(s). Although the court may also impose sanctions on defense counsel payable to the court's registry, the court will refrain from levying further punishment on the defense. The court will not be so lenient should this same scenario occur again.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff's "motion for partial reconsideration" of the court's September 28, 2001 decision, and also denies the defendant's motion to alter or amend that same ruling. In addition, the court denies the defendant's motion for a protective order staying discovery. Furthermore, the defendant's counsel is ordered to pay the plaintiff's attorneys' fees, costs, and expenses relative to the defendant's motion for a protective order. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously executed and issued on this 20 day of June 2002.
NOTES
[1] The court notes that the Federal Rules of Civil Procedure do not recognize the terminology of a "motion for reconsideration." Although litigants will commonly refer to a request to alter or amend a court's prior judgment as a "motion for reconsideration," Rule 59(e) and this court refer to such a motion as a "motion to alter or amend a judgment." Fed.R.Civ.P. 59(e); Standing Order ¶ 15; Initial Scheduling & Procedures Order ("Init.Sched.Order") dated Sept. 14, 2000 ¶ 7. With their instant motions, the parties ask the court to revisit its prior decision, which is not a final judgment since it falls in the category of an interlocutory decision under Rule 54(b), whereby an appeal to the Court of Appeals may not be drawn until the resolution of the entire case forthwith.
[2] The court granted stays to allow review of documents in light of the more stringent review standards regarding confidential sources contained in United States Dep't of Justice v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 124 L. Ed. 2d 84 (1993) (holding that the government is not entitled to the presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of the section of FOIA exempting agency records compiled for law enforcement purposes). In addition, the court also granted an extension of time so that the defendant could apply the new guidelines issued by the United States Attorney General regarding FOIA requests. Campbell, 1996 U.S. Dist. LEXIS 14996, at **5-6, 1996 WL 554511, at *2.
[3] The ELSUR is an electronic index utilized by the FBI to store and organize FBI documents. Campbell, 164 F.3d at 27.
[4] "Tickler" is a term used by the FBI to indicate "a duplicate file containing copies of documents, usually kept by a supervisor. Such files can be of interest to a FOIA requester because they could contain certain documents that failed to survive in other filing systems or that include unique annotations." Campbell, 164 F.3d at 27 n. 1.
[5] Exemption 1 protects from disclosure national security information concerning the national defense or foreign policy, provided that it has been properly classified in accordance with the substantive and procedural requirements of an executive order. 5 U.S.C. § 552(b)(1). As restated later in this opinion, the executive order currently in effect is Executive Order 12,958, which was issued on October 14, 1995. 3 C.F.R. 333 (1996).
[6] Exemption 7(C) provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).
[7] Exemption 7(D) provides protection for "records or information compiled for law enforcement purposes [which] could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source. 5 U.S.C. § 552(b)(7)(D).
[8] As noted earlier, both the plaintiff and the defendant filed their motions pursuant to Rules 52 and 59 of the Federal Rules of Civil Procedure. Both of these rules, however, apply to final judgments. FED. R. CIV. P. 52, 59. In effect, the parties are asking the court to alter or amend its prior interlocutory decision concerning the parties' cross-motions for summary judgment. Therefore, the court analyzes their motions pursuant to Federal Rule of Civil Procedure 54(b), which addresses interlocutory judgments. FED. R. CIV. P. 54(b). It should also be noted that the court's Initial Scheduling Order along with the court's Standing Order state that "[s]o called `Motions for Reconsideration' of a prior court ruling are strongly discouraged .... [in addition] [,] the court will not entertain: (a) motions that simply reassert arguments previously raised and rejected by the court; and (b) arguments that should have been previously raised, but are being raised for the first time in the `Motion for Reconsideration." Init. Sched. Order ¶ 7 (citation omitted); Standing Order ¶ 15 (citation omitted).
[9] At the status hearing held on October 18, 2001, the defendant informed the court that it anticipated filing a motion for a protective order and the court directed that the motion be filed by November 5, 2001. Order dated Oct. 18, 2001.
[10] In early August 2001, the defendant stated that it would file a "supplemental declaration addressing the issue raised in Schrecker .... [T]he time necessary to prepare the ... declaration [,][however,] has been negatively effected ... [by the] recent terrorist attacks." Def.'s Mot. at 2 (referring to the events surrounding the attacks on our nation on September 11, 2001). The court acknowledges these circumstances and understands that "enormous F.B.I. resources" have been committed to the investigations, and also realizes that "discovery [deadlines] ... in this case [may] have to be adjusted to take this new reality into consideration." Def.'s Reply at 2.
[11] The court is aware that "the FBI re-reviewed all documents according to the provisions of Executive Order No. 12,958, 60 Fed. Reg. 19825 (April 17, 1995)." Mem. Op. dated Sept. 28, 2001 at 12.
[12] The defendant's response to the court's show cause order provides explanations to the court as to how the court can assess from the information submitted by the defendant whether compliance with the D.C. Circuit's exemption 1 requirements has been reached. For example, if a particular justification page in Mr. Hodes's Second Declaration explains that the classified information in a particular line of text identifies an intelligence source, then the court must turn to Mr. Hodes's First Declaration in which Mr. Hodes specifically describes the different types of intelligence information withheld and the analysis of harm that would occur if that specific information were disclosed. Def.'s Resp. to Show Cause Order, Ex. A at 3. Accordingly, the defendant explains that the justification of the withholding of exemption 1 information is "not complete unless the reader reads both documents in their entirety." Id. (underline in the original).
[13] The defendant advised the court that the supplemental declaration would be filed by January 31, 2002, but the actual date of the filing was March 27, 2002, almost two months after the deadline had passed. Never mind the fact that the defendant has failed to request an extension of time or leave from the court to late-file its supplemental declaration, the defendant should be made aware of the fundamental principle that serving and filing submissions in a timely manner benefits the private and public interests in having decisions rendered in a timely manner. Additionally, the defendant cites the terrorist attacks of and surrounding September 11, 2001 as placing a strain on the department's resources, thus asserting that the prescribed search is highly burdensome on the FBI. Def.'s Prot. Mot. at 2. This was aside from the defendant's blanket assertion that the discovery granted to the plaintiff was premature in light of the supplemental declaration that the FBI was preparing. Id. Without directly commenting on these assertions, the court simply notes for the record that the defendant has circumvented this court's procedures elucidated in the Initial Scheduling Order, Standing Order, and the federal rules, along with the directives stated in the court's September 28, 2001 Memorandum Opinion.
[14] The court notes that the Fifth Declaration is the sole declaration wherein the nomenclature of the term "tickler files" is disputed. 5th Hodes Decl. at 4, 5. Mr. Hodes states that the FBI defines "ticklers" as carbon or duplicative copies and, as such, there are no separate tickler files. Id. This distinction is irrelevant to the ultimate determination of the court's denial of the defendant's motion to stay discovery.
[15] The defendant asserts that the court is "well aware of the ... case law" and, as such, finds no need to summarize or apply the law to the facts of this case. Def.'s Prot. Mot. at 7. The court admonishes defendant's counsel that one of the main functions of litigators is to utilize their knowledge of case law and their ability to apply that body of law to the facts of their clients' cases. As one court has remarked, the premise of an adversarial system is that courts do not sit as self-selected entities of legal inquiry and research, but as arbiters of legal questions presented and argued by the parties before them. Tom v. Heckler, 779 F.2d 1250, 1259-60 (7th Cir. 1985) (Posner, J., dissenting).
[16] It should be made clear that the defendant need not file a response. If the defendant does wish to file a response to the plaintiff's calculated expenses, however, that response shall be limited to the narrow issue of calculating the proper compensatory sum owed to the plaintiff. In other words, the opportunity for the defendant to file the aforementioned response is not an additional opportunity to relitigate the issues resolved by this and the September 28, 2001 rulings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2885505/ | NO. 07-01-0222-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 19, 2001
______________________________
IN THE INTEREST OF K.B. AND J.B., MINOR CHILDREN
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO.59,921-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Margaret Baca1 appeals a bench trial judgment involuntarily terminating
her parental rights to her two minor children, K.B. and J.B. By four points of error, she
contends the trial court erred in finding by clear and convincing evidence that (1) she
engaged in conduct or knowingly placed the children with persons who engage in conduct
which endangers the physical and emotional well-being of the children because the
evidence was legally or factually insufficient, (2) the termination of the parent-child
relationship was not in the best interest of the children because the evidence was legally
1
Although the order also terminated the parental rights of the father, he did not
appeal.
or factually insufficient, (3) she knowingly placed or allowed the children to remain in
conditions or surroundings which endanger their physical or emotional well-being because
the evidence was legally or factually insufficient, and (4) she constructively abandoned the
children because the evidence was legally or factually insufficient. Based on the rationale
expressed herein, we affirm.
Although Margaret’s brief does not include a fact statement supported by record
references as required by Rule 38.1(f) of the Texas Rules of Appellate Procedure, in the
interest of justice, we have reviewed the entire record for disposition of this appeal. After
receiving a report of abuse and neglect, the Texas Department of Protective and
Regulatory Services (TDPRS) removed eight-year-old K.B. and two-year-old J.B. from
Benny and Margaret Baca’s custody and was appointed temporary managing conservator
on February 25, 1999. Shortly thereafter, on March 10, 1999, TDPRS was appointed
managing conservator and Margaret Baca was given the rights of possessory conservator,
which entitled her to scheduled visitations.
Prior to being in custody of TDPRS, the children and Margaret Baca had been living
in a one-bedroom hotel room with Margaret’s fiancé.2 During this time, although Margaret
was on probation and had failed two urinalyses tests, she used other rooms at the hotel
to use and deliver drugs. Shortly after TDPRS was appointed managing conservator of
2
Not the natural father.
2
the children, Margaret was offered the opportunity to participate in a Substance Abuse
Felony Treatment Program, but refused. TDPRS then developed a service plan in an
attempt to reunite the children with Margaret, whereby she would find employment,
maintain proper housing for the children, and attend a parenting class. On seven of
Margaret’s visits with the children, she was provided with a written copy of the plan and
oral explanations. However, even though she was informed that the services were free,
she made no effort to comply with the plan and failed to attend several scheduled
appointments. Margaret’s visits with her children became sporadic. She consistently
arrived late or did not attend at all. In response, TDPRS changed the visitation schedule
from one time per week to every other week. After December 1999, Margaret no longer
attended any scheduled visits with her children. Due to this lack of visitation and other
observations, TDPRS caseworkers testified, without objection, that it would be in the best
interest of the children to terminate the parent-child relationship as to both parents.
In its judgment, the trial court made the following three findings as grounds for its
conclusion that termination of the parent-child relationship was justified:
1. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-
being of the children;
2. engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being
of the children; and
3
3. constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department of Protective and
Regulatory Services or an authorized agency for not less than six months
and: (1) the Department or authorized agency has made reasonable efforts
to return the children to the parent; (2) the parent has not regularly visited
ormaintainedsignificantcontactwiththechildren;and(3)theparenthasdemonstratedaninabilitytoprovidethechildwithasafeenvironment.
The natural right existing between parents and their children is one of constitutional
dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination
proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846, 846 (Tex.
1980). A termination decree is complete, final, irrevocable, and divests for all time that
natural right as well as all legal rights, privileges, duties, and powers with respect to each
other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to
terminate the parent-child relationship brought under section 161.001 of the Family Code,
the petitioner must establish one or more acts or omissions enumerated under subsection
(1) of the statute, and must additionally prove that termination of the parent-child
relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon
Supp. 2001). Both elements must be established, and proof of one element does not
relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d
367, 370 (Tex. 1976).
Because termination of parental rights is of such weight and gravity, due process
requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam.
Code Ann. § 161.001 (Vernon Supp. 2001); In Interest of G.M., 596 S.W.2d at 847. This
4
standard is defined as that measure or degree of proof which will produce in the mind of
the trier of fact a firm belief or conviction as to the truth or the allegations sought to be
established. Id. Although the clear and convincing burden of proof required at the trial
level is well settled, appellate courts have struggled to reconcile this burden of proof with
the standard for appellate review of the sufficiency of evidence. As this Court has
previously noted, the clear and convincing standard does not alter the rules generally
applicable when appellate courts review factual findings. In Interest of M.D.S., 1 S.W.3d
190, 197 (Tex.App.–Amarillo 1999, no pet.).
Standards of Review--Legal and Factual Sufficiency of the Evidence
When presented with a challenge to the legal sufficiency of the evidence, the
reviewing court must consider all of the evidence in a light most favorable to the party in
whose favor the finding was rendered indulging every reasonable inference in that party's
favor. Associated Indem. Corp. v. Cat Contracting, 964 S.W.2d 276, 285-86 (Tex. 1998).
If there is any evidence of probative force to support the finding, the finding must be
upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). In
reviewing a challenge to the factual sufficiency of the evidence the court must consider,
weigh, and examine all of the evidence of record. Plas-Tex, Inc. v. U.S. Steel Corp., 772
S.W.2d 442, 445 (Tex. 1989). The court should only set aside a finding if the evidence
which supports the finding is so weak as to be clearly wrong and manifestly unjust. Cain
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
5
In the present case, the trial court ordered termination under sections
161.001(1)(D), (E), and (N) of the Family Code. These subsections provide for termination
if the court finds by clear and convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the
child;
(E) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being
of the child;
(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Protective and
Regulatory Services or an authorized agency for not less than six months,
and:
(i) the department or authorized agency has made reasonable
efforts to return the child to the parent.
(ii) the parent has not regularly visited or maintained
significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the
child with a safe environment.
Tex. Fam. Code Ann. § 161.001(1)(D), (E) & (N) (Vernon Supp. 2001). The Code also
requires that termination be in the best interest of the child. § 161.001(2) (Vernon Supp.
2001). In sum, a finding of a violation of either sections (D), (E), or (N), and a finding that
termination is in the best interest of the child will support a judgment terminating the
parent-child relationship.
6
We will first consider Margaret’s fourth point, which challenges the legal and factual
sufficiency of the evidence that she constructively abandoned her children in temporary
or permanent managing conservatorship of the TDPRS. In order to involuntarily terminate
parental rights under section 161.001(N), the evidence must show : (1) the child has been
in the permanent or temporary managing conservatorship of TDPRS for not less than six
months; (2) the department has made reasonable efforts to return the child to the parent;
(3) the parent has not regularly visited or maintained significant contact with the child; and
(4) the parent has demonstrated an inability to provide the child with a safe environment.
In re D.T., 34 S.W.3d 625, 633 (Tex.App.–Fort Worth 2000, pet. denied).
On March 10, 1999, after a brief period as temporary managing conservator,
TDPRS was named permanent managing conservator. At the time of the hearing in
January of 2001, TDPRS had been the temporary or permanent managing conservator for
at least six months, meeting the requirements of the first element. Element two requires
that the department make reasonable efforts to return the children. From February 17,
1999 until October 22,1999, the first case worker for TDPRS attempted to return the
children by creating a service plan which detailed the requirements that Margaret should
complete in order to have her children returned. Margaret was given seven copies of the
plan, each with an oral explanation. The case workers testified that TDPRS had made
more than sufficient efforts to return the children and that Margaret made no effort to have
the children returned. Margaret never completed the service plan even after she was
7
informed that the services were scheduled and paid for and all she had to do was keep the
appointments. Included in the service plan was an assessment to be completed by Leta
Acker. Acker contacted the case worker for TDPRS and stated she would no longer work
with Margaret because she had missed two four-hour scheduled assessments. From this
evidence, the trial judge could have concluded that the department made reasonable
attempts to return the children as required by the second element.
The next element of constructive abandonment is that the parent has failed to visit
or maintain regular contact with the child. Margaret was incarcerated in April 2000 and
remained in jail at the time of the hearing. We recognize this period alone is not sufficient
to establish constructive abandonment, id. at 634; however, before she was incarcerated
Margaret did not regularly visit the children. When the children were taken into custody,
Margaret was allowed weekly visits. She began to miss visits and arrive thirty to forty-five
minutes late when she did attend. TDPRS then changed the visitation schedule to every
other week. Margaret’s visitation was sporadic and in December 1999, she admittedly
made her last visit four months prior to her incarceration. The only contact Margaret
claims occurred after this date is through her sister. The trial judge could have found that
Margaret did not regularly visit her children.
The final element necessary in finding constructive abandonment is failure to
provide the child with a safe environment. In her brief, Margaret admits that she “made
error in judgment and has on isolated occasion engaged in conduct that she regrets.”
8
Further, soon after Margaret’s children were placed with TDPRS, she was asked to
complete a Substance Abuse Felony Treatment Program as an alternative to incarceration
for probation violation, but she refused and was incarcerated. As a result of her failure to
utilize treatment, the children remained in the custody of the TDPRS while she was
incarcerated. Margaret also failed two urinalyses while she was on probation.
Accordingly, her violation of the terms of her probation created an unsafe environment for
her children and we conclude that evidence is legally and factually sufficient to establish
that Margaret constructively abandoned her children. Margaret’s fourth point of error is
overruled.
By her second point of error, Margaret contends the evidence was legally and
factually insufficient to support a finding that termination was in the best interest of her
children.3 Factors to be considered when making the determination as to whether
termination is in the child’s best interest include: the desires of the child, the emotional and
physical needs of the child now and in the future, the emotional and physical danger to the
child now and in the future, parenting abilities, acts or omissions indicating the existing
parent-child relationship is not a proper one, and any excuse for the acts or omissions.
3
TDPRS contends that Margaret waived this point by failing to cite to authorities to
support her proposition. However, the Supreme Court’s policy is to construe the Texas
Rules of Appellate Procedure liberally so that decisions turn on substance rather than
procedural technicality. Motor Vehicle Bd. of Tex. v. EPIADA, 1 S.W.3d 108, 111 (Tex.
1999). Thus, because termination of parental rights is a right of constitutional dimension,
we will consider Margaret’s contention. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
9
In Interest of B.S.T., 977 S.W.2d 481, 485 (Tex.App.--Houston [14th Dist.] 1998, no pet.).
Without any objection, the two case workers for TDPRS testified that in their opinion,
termination of parental rights was in the best interest of the children and that the children
expressed desires to be adopted and live in new homes. Because evidence of a parent’s
history, admissions, and conduct relating to drug abuse, and her inability to maintain a
lifestyle free from arrests and incarcerations is also relevant to a best interest
determination, see Holley, 544 S.W.2d at 370, the evidence establishing that Margaret
violated probation, refused drug treatment, and used and delivered drugs can also be used
to support the court’s finding. We therefore conclude that the evidence was legally and
factually sufficient to support a finding that termination was in the best interest of the
children. Margaret’s second point of error is overruled. Our disposition of points of error
two and four pretermits consideration of points one and three. Tex. R. App. P. 47.1.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
10 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1898047/ | 599 F. Supp. 2d 556 (2009)
Douglas Arthur STRONG, Petitioner,
v.
Paul SCHULTZ, et al., Respondents.
Civil Action No. 08-3821 (RMB).
United States District Court, D. New Jersey.
February 26, 2009.
*557 Richard Coughlin, Federal Public Defender, Camden, NJ, for Petitioner.
John Andrew Ruyman, Assistant United States Attorney, United States Attorney for New Jersey, Trenton, NJ, for Respondents.
OPINION
BUMB, District Judge.
Petitioner Douglas Strong filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging the date set by the Bureau of Prisons ("BOP") for his pre-release custody placement in a residential re-entry center ("RRC"), also known as a community corrections center (hereinafter referred to as "CCC"). The BOP filed an Answer, accompanied by the declarations of Joseph Denby and Vanessa Herbin-Smith, together with several exhibits. Petitioner Strong filed a pro se Reply and a Reply through appointed counsel. For the reasons explained in this Opinion, the Court will grant the Writ and remand the matter to the BOP for re-determination of Petitioner's placement date.
I. BACKGROUND
Strong is incarcerated at FCI Fairton in New Jersey, serving a 33-month term of imprisonment imposed on November 13, 2007, by the United States District Court for the Southern District of California, based on his guilty plea to one count of bringing in illegal aliens without presentation. See United States v. Strong, Crim. No. 07-1989 (DMS) judgment (S.D.Cal. Nov. 13, 2007). The Petition, as amended, challenges the BOP's decision dated October 2, 2008, which determined that Strong is entitled to six months pre-release custody placement in a CCC from June 11, 2009, until his release date of December 7, 2009.
Specifically, Petitioner contends that the BOP determined this date pursuant to a directive from the General Counsel of the BOP that is contrary to the mandate of the Second Chance Act of 2007, Pub.L. No. 110-199, Title II, § 251, 122 Stat. 657, 692 (effective Apr. 9, 2008) (the "Second Chance Act"), codified at 18 U.S.C. §§ 3621, 3624. The Second Chance Act increases the duration of pre-release placement in a CCC from six to 12 months and requires the BOP to make an individual determination that ensures that the placement be "of sufficient duration to provide the greatest likelihood of successful reintegration *558 into the community." 18 U.S.C. § 3624(c)(6)(C) (Apr. 9, 2008). Strong seeks a CCC placement of 12 months because, given his health needs, 12 months will provide a greater likelihood of successful reintegration into the community than six months.
The facts are not in dispute. On December 20, 2007, Petitioner filed a Request for Administrative Remedy challenging his CCC placement date. On January 24, 2008, the Warden determined that Petitioner cannot be placed in a CCC prior to August 31, 2009. Petitioner appealed, arguing that he should receive the maximum CCC placement because he has been diagnosed with a terminal illness and must obtain medical and substance abuse treatment before obtaining employment. On February 22, 2008, the Regional Director determined that Petitioner will be evaluated for CCC placement no later than 11 to 13 months before his projected release date in accordance with applicable statutes, regulations, and case law, as it exists at that time.
Petitioner appealed to the Central Office. On May 19, 2008, Harrell Watts, National Inmate Appeals Administrator, responded, in relevant part, as follows:
Records indicate your projected release date is December 7, 2009, via Good Conduct Time Release. As a result of the Second Chance Act of 2007, you will be reviewed for RRC placement by your unit team between 17 and 19 months of your projected release date. If you are not satisfied with the recommendation by staff when rendered, you may initiate a Request for Administrative Remedy at your local institution.
(Administrative Remedy Response No. 477229-A1, by Harrell Watts dated May 19, 2008) (Docket entry #13-4, p. 4.)
On July 7, 2008, the Warden signed Strong's first Institutional Referral for a CCC placement of 60 days. On or about July 16, 2008, Strong filed the § 2241 Petition presently before this Court. The Petition challenges the 60-day placement as contrary to 18 U.S.C. § 3621(b) and § 3624(c), as amended by the Second Chance Act on April 9, 2008. Petitioner asserts that he is entitled to be considered for a 12-month CCC placement under the Second Chance Act and, given his long history of drug addiction, his history of non-violent drug-related crimes, his HIV diagnosis, the removal of his spleen, his need for various medications, and his relapse potential, he has a greater likelihood of successful reintegration with a 12-month placement.
On October 15, 2008, Respondents filed the Answer, together with the declarations of Joseph Denby, Petitioner's case manager, and Vanessa Herbin-Smith, Supervisory Paralegal Specialist, and several documents. According to the Answer, on August 20, 2008, United States District Judge Dana M. Sabraw amended Petitioner's judgment of conviction to provide for two years of supervised release and to delete the supervised release condition requiring Petitioner to reside in a CCC for 120 days. According to Joseph Denby, Petitioner's Unit Team reconsidered Petitioner's CCC placement date in light of this development. On October 2, 2008, Warden Schultz signed a second Institutional Referral for CCC Placement, which provides for a six-month placement (June 11, 2009, through December 7, 2009). The referral form states that Petitioner has a substance abuse history of alcohol, cocaine and heroin and sets forth the following specific pre-release needs:
Inmate Strong is being referred for Residential Reentry Center placement for a period of 180 days, pursuant to the Second Chance Act. The Unit Team has determined the recommended placement *559 is of sufficient duration to provide the greatest likelihood of successful reintegration into the community. He will be able to use this time to establish employment and enhance family ties. He has general job skills, life skills, and community resources. He has a letter of reasonable assurance from Exponents Drug Treatment. He has been excepted (sic) into the program. He has three years Supervised Release to follow. He is participating in the Inmate Financial Responsibility Program in order to pay his $100.00 Felony Assessment fee. He has been diagnosed [HIV positive]. He is currently taking medications daily for these health issues. Transitional Services will be requested because of his substance abuse history.
(Institutional Referral for CCC Placement dated Oct. 2, 2008) (Docket entry 13-3, p. 43.) (emphasis added)
Denby indicates that Petitioner's placement date of June 11, 2009, was determined pursuant to the Second Chance Act, as interpreted by a memorandum dated April 14, 2008, from the BOP's Office of General Counsel and Correctional Programs Administrator.[1] (Denby declaration, ¶ 5) (Docket entry #13-2, p. 3.) The memorandum is attached to Denby's declaration. (Memorandum for Chief Executive Officers, dated April 14, 2008, entitled "Pre-Release Residential Re-Entry Center Placements Following the Second Chance Act of 2007," from Joyce K. Conley, Assistant Director of Correctional Programs Division, and Kathleen M. Kenney, Assistant Director/General Counsel) (Docket entry #13-2, p. 19) (the "Memorandum"). The Memorandum provides in relevant part:
Regional Director Approval Required for Pre-Release RRC Placement Beyond Six Months. While the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements, Bureau experience reflects inmates' pre-release RRC needs can usually be accommodated by a placement of six months or less. Should staff determine an inmate's pre-release RRC placement may require greater than six months, the Warden must obtain the Regional Director's written concurrence before submitting the placement to the Community Corrections Manager.
(Id.)
Respondents argue in the Answer that this Court should dismiss the Petition because Petitioner did not appeal the October 2, 2008, Institutional Referral to the Regional Director and the General Counsel. Respondents alternatively argue that the Petition should be dismissed on the merits.
Petitioner filed a pro se Reply on October 30, 2008. (Docket entry #15.) Petitioner maintains that the April 14 Memorandum instructs prison officials not to comply with the Second Chance Act. (Docket entry #15, pp. 6-7.) Petitioner argues that, under the Second Chance Act
bureau staff must approach every individual inmates assesment (sic) with the understanding that he/she is now eligible for a maximum of 12 months pre-release placement.... Strong contends that BOP officials must work from the assumption that Strong should receive 12 months th[e]n and only th[e]n justify any less based upon individual circumstances.... As stated by the Woodall Court "The exercise of that discretion *560 must be based at least in part, on 3621(b) factors."
(Id., p. 17.)
Petitioner explains why, in his view, a CCC placement of six months is not of sufficient duration for him to successfully reintegrate. First, he asserts that because his medical condition has deteriorated to the extent that he has been diagnosed with AIDS, he must obtain appropriate medical care before finding a job and becoming self-sustaining. In addition, because he has a long history of substance abuse, he needs additional and lengthy substance abuse treatment.
By Order entered October 30, 2008, this Court appointed the Federal Public Defender to represent Petitioner, and extended the time for counsel to file a reply. Through counsel, Petitioner argues that the April 14 Memorandum contradicts Congress's directive that CCC placement time be of sufficient duration to provide the greatest likelihood of successful reintegration into the community. Petitioner argues that, by determining Petitioner's placement in accordance with the criteria set forth in the Memorandum, Respondents deprived Strong of the statutory opportunity to be individually considered for CCC placement for a period of up to one year on the basis of the neutral criteria identified by Congress in 18 U.S.C. § 3621(b). "Instead of striving to implement the intent of Congress `to provide the greatest likelihood of successful reintegration into the community,' the BOP, in a bit of institutional arrogance, announced that, notwithstanding the will of Congress, the presumptive norm would continue to be a maximum of six months RRC placement." (Docket entry #20, p. 6.) Petitioner asks this Court to direct the BOP to reconsider Strong for a 12-month placement, to explain application of the statutory criteria, and to file a sworn declaration stating that the April 14, 2008, Memorandum played no role in the exercise of discretion.
II. DISCUSSION
A. Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody" and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989). The federal habeas statute requires that the petitioner be in custody "under the conviction or sentence under attack at the time his petition is filed." Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.2004) (quoting Maleng, 490 U.S. at 490-91, 109 S. Ct. 1923).
This Court has subject matter jurisdiction under § 2241 to consider the instant Petition because Petitioner challenges the legality of his CCC placement by the BOP under federal law, and he was incarcerated in New Jersey at the time he filed the Petition. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242-44 (3d Cir. 2005); see also Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998).
B. Exhaustion
Respondents argue that the Petition should be dismissed without prejudice because Petitioner has not exhausted the three-step Administrative Remedy Program. The BOP acknowledges that Strong pursued all three steps of the Administrative Remedy Program, with the *561 final decision on May 19, 2008, by Harrell Watts of the Central Office. Respondents contend, however, that the Petition should nevertheless be dismissed as unexhausted because Petitioner did not exhaust administrative remedies a second time by appealing the Warden's October 2, 2008, determination.
This Court notes that Strong is currently scheduled to be placed in a CCC for the final six months of his sentence (from June 11, 2009, through December 7, 2009). Given that it took five months to exhaust administrative remedies the first time around, dismissal of the Petition as unexhausted would effectively moot Petitioner's § 2241 claim through no fault of his own. See Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 239 n. 2 (3d Cir.2005). Moreover, the purposes of exhaustion would not be served by requiring a second round of exhaustion, since Strong is challenging the validity of the BOP's April 14, 2008, guidance, not its application. This Court will therefore excuse the failure to exhaust administrative remedies. Id.
C. The Merits
Petitioner complains that, by determining his CCC placement period pursuant to the Memorandum, Respondents acted contrary to 18 U.S.C. § 3624(c). In sum, Respondents failed to consider him for a placement period that would give him the greatest likelihood of successful reintegration, i.e., 12 months.
This Court will first examine the relevant statutory regime, as amended by the Second Chance Act on April 9, 2008. Prior to the Second Chance Act, Section 3624(c) provided:
(c) Pre-release custody.The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extend practicable, offer assistance to a prisoner during such pre-release custody.
18 U.S.C. § 3624(c)(2007), amended by 18 U.S.C. § 3624(c) (Apr. 9, 2008).
As amended by the Second Chance Act, Section 3624(c) now provides, in relevant part:
(c) Prerelease Custody
(1) In General. The Director of the BOP shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community....
* * *
(6) Issuance of Regulations. The Director of the BOP shall issue regulations pursuant to this subsection not later than 90 days after the date of the enactment of the Second Chance Act of 2007, which shall ensure that placement in a community correctional facility by the BOP is
(A) conducted in a manner consistent with section 3621(b) of this title;
(B) determined on an individual basis; and
(C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.
*562 18 U.S.C. § 3624(c)(1) and (c)(6) (Apr. 9, 2008).[2]
The Second Chance Act modified Section 3624(c) by (1) doubling the pre-release placement period, (2) requiring the BOP to make CCC placement decisions on an individual basis, and (3) requiring the BOP to ensure that, consistent with the factors in Section 3621(b), the duration of the placement period gives the inmate the greatest likelihood of successful community reintegration. See 18 U.S.C. § 3624(c). Obviously, an underlying premise of these amendments is that the more time an inmate spends in a CCC before he or she is released from BOP custody, the more likely it is that his or her community reintegration will be successful.
Yet, five days after enactment of the Second Chance Act, the BOP issued the April 14, 2008, Memorandum which provides, in relevant part:
Regional Director Approval Required for Pre-Release RRC Placement Beyond Six Months. While the Act makes inmates eligible for a maximum of 12 months pre-release RRC placements, Bureau experience reflects inmates' pre-release RRC needs can usually be accommodated by a placement of six months or less. Should staff determine an inmate's pre-release RRC placement may require greater than six months, the Warden must obtain the Regional Director's written concurrence before submitting the placement to the Community Corrections Manager.
(Memorandum dated April 14, 2008, p. 4) (docket entry #13-2, p. 19).
As explained above, the Second Chance Act limits the BOP's discretion in determining the placement duration by requiring that each placement is "of sufficient duration [not to exceed 12 months] to provide the greatest likelihood of successful reintegration into the community." 18 U.S.C. § 3624(c)(6). By increasing the placement period to 12 months and requiring the BOP to ensure that placements are long enough to provide "the greatest likelihood of successful reintegration," Congress intended that each inmate would be considered for a placement of the longest duration12 monthsalthough the ultimate placement may be less than 12 months, if warranted by application of the § 3621(b) factors, i.e., the nature and circumstances of the offense, the inmate's history and pertinent characteristics, and any statement by the sentencing court.
This Court notes that, a few weeks after Strong's placement was decided, on October 21, 2008, the BOP adopted regulations which do not contain the limiting criteria of the April 14, 2008, Memorandum. See 73 Fed.Reg. 62440-01 (Oct. 21, 2008). The new regulation entitled "Time-frames" authorizes BOP staff to designate inmates to a CCC for the final 12 months of the sentence. See 28 C.F.R. § 570.21(a) (Oct. *563 21, 2008) ("Inmates may be designated to community confinement as a condition of prerelease custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months"). Unlike the April 14, 2008, Memorandum, the regulation entitled "Designation" does not limit the discretion of staff to designate inmates to a CCC for more than six months:
Inmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. § 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part.
28 C.F.R. § 570.22 (Oct. 21, 2008).
This Court finds that, by instructing staff that pre-release placement needs can usually be accommodated by a placement of six months or less and by denying staff the discretion to recommend a placement longer than six months (without advance written approval from the Regional Director), the April 14, 2008, Memorandum is inconsistent with the Second Chance Act's amendments to § 3624(c).[3] The April 14, 2008, Memorandum impermissibly constrains staff's discretion to designate inmates to a CCC for a duration that will provide the greatest likelihood of successful reintegration into the community, contrary to § 3624(c)(6)(C). Accordingly, because the duration of Strong's CCC placement was determined pursuant to these impermissible limitations, the BOP abused its discretion in determining that Strong's placement would be for six months. This Court will therefore grant the writ to Strong, and remand the matter to the BOP with instructions to consider Strong for a longer placement in a CCC, in accordance with the Second Chance Act, and without regard to the April 14, 2008, Memorandum. The BOP shall report the outcome to this Court.[4]
III. CONCLUSION
For the reasons set forth above, the Court grants a Petition for a Writ of Habeas Corpus to Douglas Strong directing Respondents to immediately reconsider his designation for the remainder of his term of incarceration.
NOTES
[1] Denby avers: "This memorandum provided Bureau institutions with guidance to implement the Second Chance Act of 2007 while the regulations are proceeding. Among other things, the memorandum advised institutions how to make an inmate's pre-release RRC placement decision in view of the Second Chance Act." (Docket entry #13-2, p. 3.)
[2] Section 3621(b) of Title 18 provides, in relevant part:
(b) Place of imprisonment.The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability...., that the Bureau determines to be appropriate and suitable, considering
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence [that articulated the purpose behind the sentence or offered a recommendation for placement] ...
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28....
18 U.S.C. § 3621(b) (April 9, 2009).
[3] The April 14, 2008, Memorandum is not entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). The limitations in the Memorandum were not embodied in a regulation or even a Program Statement, and it is settled that BOP Program Statements are not entitled to Chevron deference. See Reno v. Koray, 515 U.S. 50, 61, 115 S. Ct. 2021, 132 L. Ed. 2d 46 (1995) (because they are merely internal agency guidelines that are not "subject to the rigors of the [APA], including public notice and comment," BOP Program Statements receive only "some deference"). Under this standard, "[t]he weight [accorded to an administrative] judgment . . . will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." U.S. v. Mead Corp., 533 U.S. 218, 228, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944)). Given that the limitations contained in the April 14, 2008, Memorandum find no support in the statutory text, this Court declines to defer to the criteria contained in the Memorandum.
[4] Because Strong only has nine months left on his sentence, the BOP shall consider his designation to a CCC for the remainder of his term of incarceration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1900228/ | 594 F. Supp. 229 (1984)
In re GRAND JURY SUBPOENA TO the CREDIT BUREAU OF GREATER HARRISBURG.
Misc. No. 84-199.
United States District Court, M.D. Pennsylvania.
August 3, 1984.
*230 James J. West, First Asst. U.S. Atty., Harrisburg, Pa., for plaintiff.
Richard C. Ruben, Hanson & Ruben, Harrisburg, Pa., for defendant.
MEMORANDUM
RAMBO, District Judge.
On or about June 20, 1984, Mr. Lee West, President of the Credit Bureau of Greater Harrisburg (Credit Bureau) was duly served with a subpoena to testify before the grand jury. The information requested to be released and provided to the grand jury by the Credit Bureau is of the type governed by the Fair Credit Reporting Act, specifically 15 U.S.C. § 1681b (1982).
On June 27, 1984, the Credit Bureau filed a Motion to Quash the grand jury subpoena. This motion was supported by a brief filed on June 29, 1984. In that brief, the Credit Bureau correctly phrased the matter in issue as follows:
Is a grand jury subpoena duces tecum issued upon application of the United States Attorney's office and without judicial approval to be considered an order of court within the meaning of the provision of Fair Credit Reporting Act 15 U.S.C. § 1681b?
That section reads as follows:
§ 1681b. Permissible purposes of consumer reports
A consumer reporting agency may furnish a consumer report under the following circumstances and no other:
(1) In response to the order of a court having jurisdiction to issue an order.
(2) In accordance with the written instructions of the consumer to whom it relates.
(3) To a person which it has reason to believe
(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
(B) intends to use the information for employment purposes; or
(C) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or
(D) otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer.
[Emphasis added]
The Credit Bureau asserts that the majority of jurisdictions hold that a grand jury subpoena is not a "court order" as required by 15 U.S.C. § 1681b. The Credit Bureau cites Grand Jury Subpoena Duces Tecum Concerning Credit Bureau Inc., of Georgia, 498 F. Supp. 1174 (N.D.Ga.1980) and Application of Credit Information Corporation of New York to Quash Grand Jury Subpoena, 457 F. Supp. 969 (S.D.N.Y. 1978) to support its position. The court uncovered two other cases, In the Matter of Application to Quash Grand Jury Subpoena, 526 F. Supp. 1253 (D.Maryland 1981) and In re Vaughn, 496 F. Supp. 1080 (N.D. Ga.1980), which draw the same conclusion.
The government describes the issue as being the subject of a split in the district courts. They correctly cite In Re TRW, Inc., 460 F. Supp. 1007 (E.D.Mich.1978) which held that a federal grand jury is a judicial body and a grand jury subpoena is a court order within the meaning of § 1681b. The Government also correctly cited In Re Grand Jury Proceedings, 503 F. Supp. 9 (D.N.J.1980) for the same principle.
The only circuit court speaking directly to the issue was the Ninth Circuit in In Re Gren, 633 F.2d 825 (9th Cir.1980). That court held that a grand jury subpoena is not a court order within the meaning of the Act.
While the government contends that the only pertinent ruling in the Third Circuit is the New Jersey District Court case cited *231 above, we have found a Third Circuit case which, although not directly on point, seems both applicable and helpful. That case is In Re Grand Jury Proceedings, In Re Jacqueline Schofield, Witness, 486 F.2d 85 (3d Cir.1973). Although this case is significant because it requires what is now known as the "Schofield affidavit," it is relevant to the issue at hand because of Judge Gibbons' findings concerning grand juries and grand jury subpoenas. Judge Gibbons found the grand jury to be a law enforcement agency an investigative and prosecutorial arm of the executive branch of government. Id. at p. 90. He also found that grand jury subpoenas are instrumentalities of the United States Attorney's office. Because of this fact, Judge Gibbons goes on to say, grand jury subpoenas are exactly analogous to subpoenas issued by a federal administrative agency. Such subpoenas are not considered court orders.
Evaluating and analyzing the conflicting positions taken by the courts, this court leans strongly toward the position taken by the Credit Bureau and the cases it cites. However, in the interest of fairness and completeness, we will consider the policy arguments put forth by the government.
The government argues that the grand jury is an arm of the judiciary. We will not dispute this point. That, however, is not the same as saying that the grand jury is the judiciary. The grand jury is not the court and it doesn't issue court orders. Therefore, it is apparent that it cannot, in and of itself, comply with the clear requirement of 15 U.S.C. § 1681b (supra).
Next, the government argues that the subpoena in question is the court's own process. Again, this is partially true but there are other important factors to be considered. These subpoenas are issued by the Clerk of Courts, in blank. Fed.R. Crim.P. 17(a). The Clerk exercises no discretion in issuing these documents. They are not the equivalent of a court order.
The government goes on to argue, with no small amount of logic and persuasiveness, that the statute in question, 15 U.S.C. § 1681b, allows for various and sundry people to receive consumer reports and data similar to that sought by the government. See § 1681b(3)(A-E). This is true, and the wide and free dissemination of this information gives us pause. However, two other facts cause us to rule in favor of the movant here. First, the "persons" to whom disclosure is allowed under subsection 1681b(3)(A)-(E) are parties with whom the person about whom the data is being released either had or intends to have commercial transactions. Releasing information to such persons is substantially different than releasing information to persons or bodies who may use that information to support a criminal indictment.
The government comments on the unfairness and the absurdity of the statute's allowing someone such as the Credit Manager of K-Mart to obtain this information freely while setting up hurdles and barriers which interfere with the government's ability to obtain the same information. We don't deny that the government describes the facts accurately and these facts cast doubt on the wisdom of the statute in this regard. Nevertheless, we must be governed by the fact that Congress has very explicitly and unequivocally said in § 1681b that consumer reports can be furnished by a consumer reporting agency under three sets of circumstances. There is no question that the grand jury is not included in circumstances (2) and (3) under this section. Circumstance (1) requires the issuance of an order from a court having jurisdiction to issue such an order. If Congress wanted to exempt the grand jury from circumstance (1), it could and should have done so. This court has already determined that a grand jury subpoena is not such an order. Therefore, the grand jury has not met any of the three allowable circumstances for disclosure.
We cite at some length the Ninth Circuit's opinion in In re Gren, supra, because that opinion gives a fair and thorough summary of the legislative history of § 1681b. This history shows rather clearly *232 that Congress knew what it did when it passed subsection (1) of § 1681b:
The Fair Credit Reporting Act had a stormy birth in Congress. The Senate Bill (S.823) passed out of that house containing two separate sections pertinent to our inquiry.
Section 64 provided:
"A consumer reporting agency may furnish a consumer report under the following circumstances and no others:
"(1) In response to the order of a court having jurisdiction to issue such order ..."
Section 608 provided:
"Notwithstanding the provisions of Section 604, a consumer reporting agency may furnish identifying information respecting any consumer, limited to his name, address, former address, places of employment, or former places of employment, to a government agency."
H.R. 1634, which was the bill which ultimately became House version of this Act, originally contained Section 35:
"A consumer reporting agency may not furnish information on individuals in its files, except identifying information such as names, addresses, former addresses, places of employment, or former places of employment, to a governmental agency for purposes other than those listed in section 34(b) unless pursuant to legal process."
This provision was Section 608 of the 1970 amendments to the Act.
The Senate version won out, and when finally passed, the language enacted into law on this point is as follows:
"A consumer reporting agency may furnish a consumer report under the following circumstances, and no other:
"(1) In response to the order of a court having jurisdiction to issue such order," [15 U.S.C. 1681b] (emphasis added)
and
"Notwithstanding the provisions of Section 604 [15 U.S.C. 1681b], a consumer reporting agency may furnish identifying information respecting any consumer limited to his name, address, former address, places of employment or former places of employment, to a governmental agency." [15 U.S.C. 1681f]
A careful reading of the legislative history, and particularly the hearings before the Subcommittee on Consumer Affairs of the Committee on Banking and Currency of the House of Representatives, 91st Congress, 2nd Session, indicates that this very issue was before the Congress. Representatives of credit reporting agencies, including the one presently before this court, the AFL-CIO, and the American Civil Liberties Union all argued for the position that governmental agencies not engaged in an activity which included the extending of credit should have very limited access to information held by a consumer reporting agency.
On the other hand, Mr. Richard G. Kleindienst, then Deputy Attorney General of the United States, Mr. Hugo A. Rinta, then the Acting General Counsel of the Treasury Department, both argued forcibly that the governmental agencies should have unlimited access to this information, particularly in the law enforcement and revenue departments of the government. Indeed, Mr. Kleindienst suggested an amendment to or additional section to the Act which would read as follows:
"No provision of this Act is intended to prohibit or limit the furnishing of information requested by a public investigative or law enforcement agency in the performance of its official duty."
It was against this background that the Act was finally adopted containing the provisions set forth above.
What other attributes we may ascribe to Congress, this court can hardly hold that Congress did not know, when it enacted this law, that Grand Jury subpoenas were not the equivalent of a court order. Id. at 826-27.
*233 While we agree with the government that one of the major purposes of the FCRA is to protect the privacy of individual citizens and of records maintained by credit agencies, and while we also strongly agree that the grand jury is a secret institution whose records should not and generally cannot be disclosed, we cannot leap from these premises to the conclusions that § 1681b allows for disclosure of consumer records to the grand jury in response to its subpoena. Neither can we agree that a grand jury subpoena is the equivalent of a court order. Therefore, this court will grant Credit Union's Motion to Quash the Subpoena.
Finally, we note that the movant is ready, willing and able to comply with a court order in this matter, and that such an order may be sought through an in camera ex parte hearing before the court, at which time the United States Attorney need do no more than make a good faith showing that the material sought is relevant to the grand jury's investigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1899136/ | 478 F. Supp. 1163 (1979)
Arthur BURAS, Plaintiff,
v.
SHELL OIL COMPANY, Boater, Inc., Boatmaster, Inc., Bon Amis Boats, Inc., Defendants.
Civ. A. No. 78-3532.
United States District Court, E. D. Louisiana.
October 25, 1979.
Kevin A. Galatas, Baton Rouge, La., for plaintiff.
James E. Blazek, New Orleans, La., for defendant Shell Oil Co.
James G. Burke, Jr., Joseph P. Tynan, New Orleans, La., for defendants Boater, Inc. & Boatmaster, Inc.
MOTION FOR PARTIAL SUMMARY JUDGMENT
CASSIBRY, District Judge:
Plaintiff has brought this action as a result of an injury he alleges he sustained *1164 on a vessel, the M/V DELTA MOON, near a Shell Oil Co. ("Shell") rig in the Gulf. Plaintiff was the employee of Boatmaster, Inc., as the pilot of the M/V DELTA MOON, a 40-foot crewboat owned by Boater, Inc. and operated by Boatmaster. Boater was hired by Shell to provide certain transportation services between Shell's rigs and between Shell vessels in the Gulf. At the time of the alleged accident, the vessel was tied up at a Shell platform in Main Pass Block 35. A Shell supervisor told Mr. Buras that he would have to move the vessel. Mr. Buras told the supervisor that he could not do so alone because the seas were too rough, and the supervisor told Mr. Buras that he would send help. Mr. Buras waited a while and then attempted to move the vessel himself. Mr. Buras claims that at this point a large swell hit the vessel and he was knocked to the deck and injured.
Shell brings this motion for partial summary judgment for the first cause of action in plaintiff's complaint, the cause for unseaworthiness. Shell contends that since it was not the owner, operator, or bareboat charterer of the vessel, nor was Mr. Buras Shell's employee, it cannot be held liable for unseaworthiness.
The duty of maintaining a seaworthy vessel is the nondelegable duty of the owner of the vessel. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944). Nevertheless, under some circumstances, if sufficient control of a vessel is turned over to one who is not the direct owner of the vessel, that person will be deemed the owner pro hac vice of the vessel and responsible for its seaworthiness. Reed v. Steamship Yaka, 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963); Leary v. United States, 81 U.S. (14 Wall.) 607, 20 L. Ed. 756 (1972); Reed v. United States, 78 U.S. (11 Wall.) 591, 20 L. Ed. 220 (1871); Eskine v. United Barge Company, 484 F.2d 1194 (5th Cir. 1973). The Supreme Court has held that to create a demise, the owner of the vessel must completely and exclusively relinquish "possession, command, and navigation" of the vessel to the demisee. Guzman v. Pichirilo, 369 U.S. 698, 699, 82 S. Ct. 1095, 8 L. Ed. 2d 205 (1962). In Guzman, although the purported demisee claimed it had control of the vessel, the Supreme Court upheld the finding of the trial court that the captain of the vessel was employed by the owner and the owner was in possession and control of the vessel. There was, therefore, no transfer of ownership duties.
There is some evidence in this case, that while the M/V DELTA MOON was at the platform, Mr. Buras was under the direct supervision of the Shell supervisors. In at least one case, where there was no evidence of ownership of a barge presented, the court of appeals nevertheless upheld a finding of ownership pro hac vice where enough evidence was presented that during the particular operation the demisee had full charge of the vessel. Eskine v. United Barge Company, 484 F.2d 1194 (5th Cir. 1973). In Eskine, the employer moved the barge, tied it to the dock, controlled it during loading, and would have moved it after loading. The court found the employer to be the owner pro hac vice regardless of the absence of evidence of a contract between the employer and the owner of the barge.
On the other hand, in the instant case, there is a written contract defining the duties as between Boater, Inc. and Shell. The contract specifically provides that Boater, Inc. will equip, maintain in a seaworthy condition, and man all vessels used to transport Shell personnel. The contract also provides that the vessel will be manned by the contractor (Boater) and be subject to the contractor's control. Such a contract is inconsistent with a bareboat charter or a condition of ownership pro hac vice. The Supreme Court has said that where a written contract is involved, the result turns on construction of the terms of the contract. Leary v. United States, 81 U.S. (14 Wall.) 607, 20 L. Ed. 756 (1872). The Court stated:
If the charter-party let the entire vessel to the charterer with a transfer to him of its command and possession and consequent control over its navigation, he will *1165 generally be considered as owner for the voyage or service stipulated. But, on the other hand, if the charter-party let only the use of the vessel, the owner at the same time retaining its command and possession, and control over its navigation, the charterer is regarded as a mere contractor for a designated service, and the duties and responsibilities of the owner are not changed.
Leary at 610.
The latter is clearly the situation in the case at bar. Shell let use of the vessel, but command, possession, and control remained in Boater, Inc. and Boatmaster, Inc. Buras was Boatmaster's employee. His only testimony as to Shell's control of the vessel was that Shell supervisors told him where to go and when. Thus while I would be hesitant to decide exclusively on the terms of the contract in the face of de facto evidence to the contrary, there is no testimony that Buras ever relinquished any measure of control over command and navigation of the vessel to Shell. Shell, then, can be considered merely a contractor for the transportation services provided by Boater and Boatmaster, as the contract provides.
Under these circumstances, there are no issues of material fact in dispute, and Shell had no duty to maintain the seaworthiness of the vessel.
IT IS ORDERED that defendant Shell Oil Co. be granted partial summary judgment against plaintiff for the first cause of action in the complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2892642/ | NO. 07-04-0492-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 10, 2005
______________________________
CALIP JOSEPH FARMER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15,792-C; HONORABLE PATRICK PIRTLE, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant Calip Joseph Farmer appeals his conviction for the felony offense of
burglary of a habitation and punishment of twenty-five years confinement. The clerk's
record and reporter's record have been filed and appellant timely filed his brief on February
7, 2005. The State has filed a motion seeking abatement and remand to permit the trial
court to make orders it asserts are necessary to resolution of the appeal.
The record shows appellant filed a written pretrial motion to suppress oral and
written statements he made to police. That motion alleged the statements were
involuntary, specifically citing article 38.22 of the Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004). The trial court conducted a
hearing on the motion at which both parties presented evidence. At the conclusion of that
hearing the court determined appellant's written statement was given voluntarily. It found
the oral statement was admissible under article 38.22, § 3(c), exempting certain oral
statements from the requirement they be electronically recorded. The record does not
contain a written order on the voluntariness of appellant's statements. Appellant has not
objected to the absence of a written order.
Prior to filing its brief, the State has filed a motion seeking abatement of this appeal
and remand to the trial court, reinstating jurisdiction in that court so it may render and file
the written order containing the findings and conclusions required by article 38.22, § 6. It
also seeks abatement to permit the trial court to certify appellant's right to appeal as
required by Rule of Appellate Procedure 25.2(d). The State cites Green v. State, 906
S.W.2d 937 (Tex.Crim.App. 1995), for the proposition that abatement is necessary to allow
the trial court to make the required findings and conclusions.
In Green the Court of Criminal Appeals held the order required by article 38.22, § 6,
is mandatory regardless whether the defendant objects. Id. at 939. It also found an order
made after the trial court lost jurisdiction over the case was void. Id. at 940. (1) Appellant has
raised no objection to the relief sought by the State.
We grant the State's motion, abate this appeal and remand the case to the trial
court. The trial court is directed to consider and make those orders it finds proper. Any
order shall be filed in such time that a supplemental clerk's record may be filed in this court
within thirty days of this order. On the filing of a supplemental clerk's record the appellate
record will be complete. Appellant may file a substitute or supplemental brief within thirty
days of that date. Tex. R. App. P. 38.6(a). The State's brief shall be due within sixty days
from the filing of the supplemental clerk's record.
Per Curiam
Do not publish.
1. The continued vitality of Green may be uncertain. Urias v. State, No. PD-0335-03,
2005 Tex. Crim. App. Lexis 251 (Tex.Crim.App. February 16, 2005) (Keller, P.J., dissenting
from denial of motion for rehearing).
UnhideWhenUsed="false" QFormat="true" Name="Subtitle"/>
NO. 07-09-0262-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 7, 2010
______________________________
BRET ALAN AVERY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 19996-C; HONORABLE ANA ESTEVEZ, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and
HANCOCK, JJ.
ON ABATEMENT AND REMAND
Appellant, Bret Alan Avery, appeals
from his conviction for possession of a controlled substance in a drug-free
zone and sentence, pronounced on July 23, 2009, of 17 years incarceration in
the Texas Department of Criminal Justice, Institutional Division. Appellant filed notice of appeal on August 3,
2009.
The clerks record was filed on
September 24, 2009. The reporters
record was due on October 26, 2009. The
reporter neither filed the record nor requested an extension of time to file
the record by that date. On November 13,
2009, the reporter requested an extension of time to file the record and
indicated that the record was being edited at that time. The Court granted this extension request,
making the reporters record due on December 7, 2009. On December 8, 2009, the reporter again filed
a request for extension of time to file the record indicating that she was
having a difficult time editing the record due to the sound I am proofing with
as well as the way the attorneys presented their cases. The Court granted this extension request,
making the reporters record due on December 28, 2009. On December 29, 2009, the reporter filed a
third request for extension of time to file the record indicating only that I
am completing this record. Please give
me 30 more days. According to the
reporters monthly report, this record is being proofread. There is no explanation provided as to why the
reporter needs 30 days to proofread the record in this case. As such, we deny the reporters third request
for extension of time to file the reporters record as not being supported by
good cause.
Accordingly, we abate this appeal
and remand the cause to the trial court for further proceedings. See Tex.
R. App. P. 35.3(c). Upon remand,
the trial court shall immediately cause notice of a hearing to be given and,
thereafter, conduct a hearing to determine whether the reporters caseload is
such that an alternate or substitute reporter should or can be appointed to
complete the record in this appeal in a timely manner. If so, the trial court is directed to take
whatever steps are necessary to ensure that the reporters record in this
appeal is filed as soon as practicable.
The trial court shall cause the
hearing to be transcribed. In addition,
the trial court shall (1) execute findings of fact and conclusions of law
addressing the foregoing issues, (2) cause a supplemental clerks record to be
developed containing its findings of fact and conclusions of law and any orders
it may issue relating to this matter, and (3) cause a reporters record to be
developed transcribing the evidence and arguments presented at the
aforementioned hearing, if any. The trial
court shall then file the supplemental clerks record and any reporters record
transcribing the hearing with the Clerk of this Court on or before February 8,
2010. Should further time be needed by
the trial court to perform these tasks, same must be requested before February
8, 2010.
It is so ordered.
Per
Curiam
Do
not publish. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1897912/ | 599 F. Supp. 1278 (1984)
Jesus RAMIREZ; Arturo Garcia; Guillermina Garcia; Jose Garcia; Arturo Garcia, Jr.; Juan Rodriguez; Jose Jimenez; Raul Ramos; Jesus Mendoza; Tomas Valentin; Gregoria Guerrero; Zenaida Quinones; Janet Quinones; Awilda Quinones; Nelson Santiago; Cynthia McCleary; Martin Ramos; Domingo Coriano; Benedicto Padron; Timothy Ponce; Juan Guerrero, Jose Guerrero, Maria Guerrero, and Margarita Guerrero by their next friend, Gregoria Guerrero; Norma Garcia, Lupita Garcia, and Enedina Garcia by their next friend, Arturo Garcia; and Jose Angel Garza by his next friend Gregoria Guerrero; individually and on behalf of all others similarly situated, Alfredo Solis; Joe Manuel Solis by his next friend Alfredo Solis; Alvaro Aguilar and Nancy Aguilar, Plaintiffs,
v.
Jack E. WEBB and Gregory Kowalski, both individually and in their official capacity as agents of the Immigration and Naturalization Service; Paul E. McKinnon, both individually and in his official capacity as District Director of the Immigration and Naturalization Service; Jerald D. Jondall, both individually and in his official capacity as District Director of the United States Border Patrol; Ronald Dowdy and Edwin W. Earl, both individually and in their official capacity as agents of the United States Border Patrol; John Doe I through XXXXIV, both individually and in their official capacity as agents of the Immigration and Naturalization Service of the United States Border Patrol; Unknown Local Law Enforcement Agencies; Ronald Roe I and II, both individually and in their official capacity as agents of Unknown Local Law Enforcement Agencies, Defendants.
No. K 81-344.
United States District Court, W.D. Michigan.
December 10, 1984.
*1279 *1280 Gary Gershon, Grand Rapids, Mich., Philip R. Riley, Berrien Springs, Mich., Edward Preston, East Lansing, Mich., for plaintiffs.
Anne Vandermale Tuuk, Asst. U.S. Atty., Grand Rapids, Mich., for McKinnon, Webb, Kowalski, Jondall, & Dowdy.
Francesco Isgro, Immigration & Naturalization, Washington, D.C., Elizabeth Hacker, Immigration & Naturalization, Detroit, Mich., for defendants.
OPINION
ENSLEN, District Judge.
I. Background
In August, 1984 the Court certified a class of litigants for the purpose of pursuing this lawsuit against officials of the Immigration and Naturalization Service (INS), the United States Border Patrol (USBP) and unknown local law enforcement agencies, all of whom allegedly are involved in unlawful searches and seizures of Hispanics in this jurisdiction.
In certifying the class pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court expressed concern for the Fourth Amendment rights of Hispanic-appearing citizens, residents and legal workers. Although it has long been the rule that evidence obtained in violation of the Fourth Amendment cannot be used in legal hearings against individuals, Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920), the Supreme Court recently permitted evidence which had been unlawfully obtained by the INS to be used against a Hispanic man at a deportation hearing. INS v. Adam Lopez-Mendoza, 468 U.S. ___, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984). That ruling effectively negated the deterrent effect of the exclusionary rule, United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976), for many Hispanics.
In the present proceedings for preliminary injunctive relief, Plaintiffs claim imminent harm because of ongoing INS searches and seizures. They argue that their affidavits, live testimony, and exhibits indicate the Defendants are pursuing investigations that are constitutionally impermissible, and they request a preliminary injunction to require that Defendants act according to specific guidelines in conducting workplace searches, pedestrian stops and interrogations, and car stops.
The Defendants argue that the extraordinary relief of an injunction is inappropriate in this case, because the Plaintiffs have an available money damages remedy. However, there is no per se rule against suing for damages and injunctive relief in a single lawsuit. Twyman v. Rockville Housing Authority, 99 F.R.D. 314, 324 (1983), citing the rule of Robinson v. Lorillard, 444 F.2d 791, 801-802 (CA 4 1971), cert. dismissed, 404 U.S. 1006, 92 S. Ct. 573, 30 L. Ed. 2d 665 (1971).
Defendants also argue that the Supreme Court's recent rule regarding standing in lawsuits for injunctive relief is a bar to this action. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The Lyons ruling is distinguishable from this case, both because Lyons was not a class action and because the issue of statistical improbability underlying the Lyons ruling is not implicated in this suit. See, Lewis v. Tully, 99 F.R.D. 632 (1983). Nor is this case controlled by the Supreme Court's ruling in Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). Rizzo was a § 1983 action in which the plaintiff class alleged isolated violations by a city's police department and demanded relief which would have resulted in a massive intrusion by the federal government into local affairs. Again, statistical improbability is not involved here, and the federalism issue is factually irrelevant.
Although certain testimony and affidavits were offered regarding farm owners' complaints about INS and USBP intrusions on their property, that question is not properly before the Court. The Plaintiffs in *1281 this lawsuit cannot assert the rights of their employers to be free from INS and USBP practices. Illinois Migrant Council v. Pilliod, (Pilliod 1), 398 F. Supp. 882 (ND Ill.1975), aff'd, Illinois Migrant Council v. Pilliod (Pilliod 2), 540 F.2d 1062 (CA 7 1976) modified en banc, Illinois Migrant Council v. Pilliod (Pilliod 3), 548 F.2d 715 (CA 7 1977); See also, Illinois Migrant Council v. Pilliod (Pilliod 4), 531 F. Supp. 1011 (ND Ill.1982). "The Fourth Amendment confers rights which cannot be asserted vicariously." Pilliod 1 at 900. Therefore, the Court will not address the "open fields doctrine" issue raised during the proceedings. However, e.g., see, Oliver v. United States, ___ U.S. ___, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 894 (1924).
II. The Preliminary Injunction
In considering a motion for a preliminary injunction, the Court does not determine a case on the merits; rather, the Court determines whether there is sufficient evidence to support the exercise of its discretionary power to issue preliminary equitable relief. Adams v. Federal Express Corporation, 547 F.2d 319 (CA 6 1976). The general guidelines are set forth in Mason County Medical Association v. Knebel, 563 F.2d 256 (CA 6 1977):
1. Whether the plaintiffs have shown a strong or substantial likelihood or probability of success on the merits.
2. Whether the plaintiffs have shown irreparable injury.
3. Whether the issuance of the preliminary injunction would cause substantial harm to others.
4. Whether the public interest would be served by issuing a preliminary injunction. Id. at 261.
A. Probability of Success on the Merits
In this lawsuit, Plaintiffs have alleged violations of their Fourth Amendment rights in four settings. Only three of the settings are in issue in the present proceedings: the workplace, the vehicle stops, and pedestrian stops and interrogations.
There is no single Fourth Amendment doctrine that addresses all three settings. The Fourth Amendment protects the privacy rights of individuals, and as the individual changes settings, or changes his or her expectations of privacy, the Fourth Amendment protection of the privacy also changes. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967):
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 17 L. Ed. 2d 312, 315 87 S. Ct. 424 [427]; United States v. Lee, 274 U.S. 559, 563, 71 L. Ed. 1202, 1204, 47 S. Ct. 746 [748]. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 4 L. Ed. 2d 1688, 80 S. Ct. 1431; Ex Parte Jackson, 96 U.S. 727, 733 [6 U.S. 727, 733], 24 L. Ed. 877, 879. Katz, 389 U.S. 351-352, 88 S. Ct. 511-512.
A very recent Supreme Court decision reviewed the Katz holding and noted the general rule:
Since Katz v. United States, (citation omitted) the touchstone of [Fourth] amendment analysis has been the question whether a person has a "constitutionally protected reasonable expectation of privacy." (Citation omitted) The amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as "reasonable". Smith v. Maryland, 442 U.S. 735, 740-741, 99 S. Ct. 2577 [2580-2581], 61 L. Ed. 2d 220 (1979). Oliver v. United States, [___] US [___], 80 L. Ed. 2d 214, 104 S Ct [1735] (1984).
Therefore, the Court will analyze separately each of the settings in which the Plaintiffs claim an ongoing constitutional violation.
*1282 1. The Vehicle Stops
The United States Congress authorizes immigration officers "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States", 8 U.S.C. § 1357(a)(1), and "to conduct a search, without warrant, of the person, and of the personal affects of any person seeking admission to the United States, concerning whom such officer may have reasonable cause to suspect that grounds exist for exclusion from the United States..." 8 U.S.C. § 1357(c). As Pilliod 2, supra, stated:
Congress' plenary power to exclude aliens has been described as "a power to be exercised exclusively by the political branches of government." Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S. Ct. 2576, 2583, 33 L. Ed. 2d 683 (1972). "`[O]ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Id at 766, 92 S. Ct. at 2583, quoting from Oceanic Steam Navigation Company v. Stranahan, 214 U.S. 320, 339, 29 S. Ct. 671 [676], 53 L. Ed. 1013 (1909). Pilliod 2 at 1072.
But Congress may not legislate away the constitutionally protected right of individuals to be free from unreasonable search and seizure:
The needs of law enforcement stand in constant tension with the Constitution's protection of the individual against a certain exercise of official power. It is precisely the predictability of these pressures that counsels a resolute loyality to constitutional safeguards. It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg trials:
"These [Fourth Amendment rights], I protest, are not mere second-class rights, but belong in the catalogue of indispensible freedoms. Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. Brinegar v. United States, 338 U.S. 160, 180, 93 L. Ed. 2d 1879, 69 S. Ct. 1302 [1313] (Jackson, J. dissenting)."
Almeida-Sanchez v. United States, 413 U.S. 266, 273-274, 93 S. Ct. 2535, 2539-2540, 37 L. Ed. 2d 596 (1973). In Almeida-Sanchez, the Supreme Court stated that the immigration service's enforcement statute could not authorize Fourth Amendment violations. The Supreme Court threw out the conviction of a drug smuggler whose automobile was stopped without probable cause near the Mexican border.
Subsequent Supreme Court rulings have focused the constitutional inquiry into immigration search and seizure even further. The stopping of a vehicle implicates the Fourth Amendment. See, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694, 66 L. Ed. 2d 621 (1981). Seizure may not occur without valid reason by law enforcement officials. Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S. Ct. 1391, 1396-1397, 59 L. Ed. 2d 660 (1979). The reasonableness of a vehicle seizure requires a balancing of the individual's constitutional right to be free from arbitrary interference and the immigration service's statutory duty to seek out illegal aliens. United States v. Brignoni-Ponce, supra. Reasonableness in all cases must be measured by an objective standard, not by the discretion or the subjective impressions of the particular officer. United States v. Rocha-Lopez, 527 F.2d 476 (CA 9 1975); Delaware v. Prouse, supra, at 440 U.S. 648, 99 S. Ct. 1391. Specifically, officers on roving patrol who stop and seize a vehicle must provide objective "articulable facts" for doing so. Brignoni-Ponce, supra, at 422 U.S. 884, 95 S. Ct. 2581.
The case-law establishes that when an immigration officer stops a vehicle near the border, the officer may take into consideration the area they are in; the traffic patterns; previous experience with alien traffic and reasonable inferences drawn therefrom; occupants' behavior, suggesting *1283 evasion or erratic driving; aspects of the car such as fold-down seats or spare tires in which concealed aliens might hide; the weighted-down appearance of the car; or manner of dress indicating Mexican citizenship. Id. at 422 U.S. 884-885, 95 S. Ct. 2581-2582.
A seizure will never be considered reasonable if the officer stopped the vehicle near the border solely because of the Mexican ancestry of the occupant. Id. at 885-887, 95 S. Ct. 2582-2583.
The legal test for a vehicle stop requires specific articulable facts:
Officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that vehicles contain aliens who may be illegally in the country. Brignoni-Ponce at 422 U.S. 884, 95 S. Ct. 2581.
The facts of the vehicle stops in the case before this Court vary significantly from the predicate facts of Brignoni-Ponce. Significantly, the vehicle stops all took place in Michigan, very distant from the Mexican border. There is no issue of smuggling Hispanics across a border. The stop of Juan Guzman's car on September 21, 1984 was performed by an officer who ostensibly wanted to ask Mr. Guzman about his tinted windows. (Exhibit B to Plaintiffs' brief.) The officer who stopped Mary Ramirez on September 24, 1984, apparently gave no reason at all for stopping her; he only questioned her about her citizenship. (Exhibit C to Plaintiffs' brief.) The officers who stopped the Soto car on September 24, 1984, interrogated the four occupants about their citizenship but gave no reasonable explanation for stopping the car. (Exhibit P to Plaintiffs' brief.) Similarly, the stop of the Rangel vehicle on September 24, 1984, after the Border Patrol did a U-turn to follow Rangel, was performed with no apparent reasonable articulable facts for such a stop. (Plaintiffs' Exhibit R.) The affidavits of Theresa Schullo and Maria Aguilar, respectively a party store clerk and a receptionist of the Migrant Intermediate Care Center, indicate that the vehicle stops in this district, at least during this agricultural season, occur with some frequency. (Plaintiffs' Exhibits KK and Y.) Their numerous additional affidavits, as well as the live testimony of Robert Mireles, indicate that it is the practice of the immigration officers to stop Hispanic appearing persons solely because of their appearance, or because they are driving older cars, are dressed in work clothes, or have out of state license plates. Such facts, without more to indicate illegality, cannot justify the subjugation of individual rights.
It must be remembered that Brignoni-Ponce was a case based on an extreme settingi.e. within 25 miles of the Mexican border, and on a known smuggler's route. Even in the border smuggling context, the Supreme Court required articulable reasons for stopping the car before it would consider the legitimate goals of the immigration service as outweighing the normal Fourth Amendment rights of the individuals stopped.
The Defendants' affidavits and live testimony do not help their case; indeed, in some instances their testimony is quite harmful to their stated legal positions. The affidavit of Officer Buzaitis states, in regard to the Soto vehicle stop, that he was patroling in a region containing a heavy concentration of migrant labor during the harvest season, that he glimpsed a car whose occupants he wanted to observe more closely, that he followed it and questioned the passengers about their right to remain in the United States. (Defendants' Exhibit J.) There is a question whether the Sotos were pulled over, or whether, as Officer Buzaitis states, he came upon them after they had stopped. The difference might have some doctrinal significance, but that does not erase the doubt in my mind concerning the articulable facts which formed the basis of the officer's original reason for following the automobile. I am troubled by the officer's statement that "... in all instances when I question a person concerning his or her immigration *1284 status, I determine whether there is a reasonable suspicion that the person is an alien based upon several factors, including, among others, physical appearance, language ability, geographic area where the encounter occurs, manner of dress, and any inferences reasonably drawn from my experience and training." (Defendants' Exhibit J, pp. 2-3.)[1]
My concern stems from the fact that the sequence of establishing a reasonable suspicion of illegal alienage is out of sync. It would appear that Officer Buzaitis believes he can stop a vehicle and then discover reasonable articulable facts for doing so, based on closer observation and interrogation. That is not the case law or the constitutional principle. The reasonable articulable facts must precede the stop.[2]
If there are no present articulable facts, a stop may not occur. Brignoni-Ponce. If an individual is to be stopped in an automobile, and that individual's privacy thereby subjugated, there must be sufficient articulable facts preceding the stop, which establish a reasonable governmental need for the stop, and which thereby outweigh the rights of the individual. The train of logic articulable facts leading up to a stop may not be reversed as apparently occurred in the Soto stop.
I am also troubled by the Soto stop because of the "articulable facts" (physical appearance, language ability, geographic area where the encounter occurred, manner of dress and any inferences reasonably drawn from his experience.) I analyze the officer's stated facts as follows:
1. Physical appearance. Because the officer, later in his list of facts, states "manner of dress" as another factor, it appears that "physical appearance" may mean the Hispanic appearance of the individual. That is not a valid reason to stop anyone.
2. Language ability. Language ability can only be determined after a stop, so it cannot be a valid basis for stopping an automobile.
3. Geographic area. An agricultural region in Michigan is not identifiable by this Court, from a reading of pertinent case law, as an intrinsically suspect geographical area similar to the border. A particular farm conceivably may be shown to be a suspect geographical area, but that requires reasonable statistical proof.
4. Manner of dress. Manner of dress was a valid articulable factor in Brignoni-Ponce, but with a limitationthe manner of dress taken into account by the border patrol indicated that the suspects in fact were dressed like people who live in Mexico. Brignoni-Ponce at 422 U.S. 885 [95 S. Ct. 2582]. The suspicious manner of dress was not related to work clothes. It is difficult to ascertain from the affidavits if the manner of dress of the passengers in the Soto car were indicative of people who live in Mexico, or simply indicative of people who do field work. The live testimony of General Emil Orsack of the INS indicated that working clothes are considered a valid articulable factor in stopping individuals for questioning. That is not, however, the case law.
5. Inferences drawn from articulable facts. Immigration officers may draw inferences from valid articulable facts, in formulating the decision to stop a vehicle. The inferences, however, must be based on objective facts. Inference alone is merely "discretion". There is absolutely no discretionary right of any officer to stop a vehicle. A stop based solely upon the discretion of an individual officer is unconstitutional.
I find other similarly troubling revelations in the Defendants' evidence. At *1285 pages 3 and 4 of Defendants' Exhibit J, an officer notes that he followed a car containing four Hispanics because, at least in part, they were dressed in clothing common to agricultural workers and appeared to avoid his gaze. The Hispanics were riding in an older car with Florida license plates and were in a region of high migrant population during the harvest season. There was no other apparent reason for stopping the car. Defendants' Exhibit M indicates that an officer initiated an investigation based solely on an anonymous tip. There were no facts, save a phantom informant. Defendants' Exhibit N suggests that Michigan farms are targeted as suspect areas if, over a five and one-half year period, 63 aliens who were arrested either worked at the farm or "claimed to be employed at the farm". Such a statistic is slim indeed, and of dubious origin. Similarly, Defendants' Exhibit O indicates that appearance, dress, English language ability, and the agricultural locale provided the questionable basis for a vehicle stop and interrogation.
I especially note Defendants' Exhibit 1, the M-69 document entitled, US Department of Justice Immigration and Naturalization Service, "The Law of Arrest, Search and Seizure for Immigration Officers" (Revised 1983), at p. 3:
Degree of Suspicion
4. Reasonable suspicion that a vehicle contains an alien or aliens who may be in the United States illegally the degree of suspicion which an immigration officer on roving patrol (or at temporary checkpoints in the Ninth Circuit) must have before he may constitutionally stop a vehicle to question its occupants. This suspicion may be based on factors similar to those described in 3. above as well as on features of the vehicle such as fold down seats, spare tire compartments where a person could be concealed, a large number of passengers, or an unusually heavy load.
The "reasonable suspicion" analysis of the above excerpt from M-69 seems to permit immigration officers in Michigan to consider factors that are only valid near the Mexican border. The type of vehicle which might be used for smuggling aliens in small compartments at the border should not logically be weighed the same, once the use of the small compartments ceases to be a factor. That is, a make of car with a hidden tire-well might be suspect at the border because it might, during a border-crossing, contain an illegal alien. On the border the per se fact of the type of car is significant. Once that same car is several thousands of miles away from the Southwestern United States border, does the hidden tire-well still have some significance? Are the illegal aliens conceivably going to travel thousands of miles inside that confined space? Generally, are there "inland factors" which may be articulated to establish standards for the INS and USBP roving patrols in Michigan?[3]
The testimony of General Orsack, head of this INS sector, suggests there should be, but there probably is not, a localized standard for INS search and seizure. The General's testimony suggests there is a woeful laxity of statistical records regarding search and seizure, and there may be a lack of supervision over officers who conduct the "operational details" in this jurisdiction.
Based on the foregoing discussion, I believe there is sufficient evidence to establish the likelihood of success on the merits in regard to Plaintiffs' claims concerning vehicle stops to justify the issuance of a preliminary injunction in that regard, inasmuch as immigration service officers in this jurisdiction appear to be acting contrary to their own M-69 manual, and, more importantly, contrary to the Fourth Amendment.
2. Pedestrian Stops
In reflecting upon the issue of pedestrian stops of Hispanics in this jurisdiction, the *1286 Court considers the stop and questioning of Sally Aleman and her husband as a paradigm. The testimony of Ms. Aleman and Officer Huffman (Defendant's Exhibit C) apparently describe the same incident. Huffman describes a setting in which a Hispanic woman with a Hispanic man, on a sidewalk in Hartford, Michigan, were spotted and approached because (a) the man appeared to be Hispanic in an area frequented by illegal Hispanic aliens; (b) the man's dress was "gaudy", such as is frequently worn by illegal aliens on their days off; (c) the Hispanic looked at the officer's vehicle in a pronounced way; (d) the officer's experience suggested the Hispanic was an illegal alien. Ms. Aleman's recitation of the facts, including her description of her husband's shirtwine red with white feathersconforms to the officer's account, although she recalls the incident as occurring in October, while the officer recalls the incident as occurring in July. Ms. Aleman testified that she and her husband were on their way to a movie, and that during the two officers' questioning of her and her husband, she was frightened and believed she was not free to leave. She stated that she was frightened by the officers' official manner and by their guns, although the guns were never drawn from the holster. Officer Huffman states in his affidavit that he and his colleague questioned the couple for no more than two or three minutes.
The Defendants' M-69 document correctly notes that the case law regarding the stopping and questioning of pedestrians is less clear than the rules of vehicle stops. (Defendants' Exhibit 1, page 9, subsection 2). The immigration service is not alone in its wonderment at the subtlety of search and seizure doctrine, in this area.
Justice Rehnquist, writing for the Supreme Court, recently stated:
Although we have yet to rule directly on whether mere questioning of an individual by a police officer, without more, can amount to a seizure under the Fourth Amendment, our recent decision in [Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1393 (1983) (plurality opinion)] plainly implies that interrogation relating to one's identity or a request for identification does not, by itself, constitute a Fourth Amendment seizure. INS v. Delgado, [___] US [___, ___], 80 L. Ed. 2d 247, 255, 104 S.Ct. [1758, 1762] (1984).
In the Royer case, Drug Enforcement Agency Officers, using a drug courier "profile" to determine likely drug traffickers, approached a suspect who matched the "profile" of illegal types.
Justice Rehnquist also noted the case of Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979). In Brown, two police officers asked a pedestrian to identify himself, and he refused. The officers then detained the man. Chief Justice Burger, writing for the Supreme Court, stated that the detention was a violation of the Fourth Amendment:
... because the officers lacked any reasonable suspicion to believe appellant was engaged in or had engaged in criminal conduct. Id. at 443 U.S. 53, 99 S. Ct. 2641.
In Delgado, Justice Rehnquist did not reach the issue of what amount of justification for detention is required under United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), because he did not find that a seizure had occurred. However, Justice Rehnquist makes clear that in order to stop and question a pedestrian, there must be some reasonable suspicion of illegal conduct.
In contrast to the rule of Delgado, Royer, and Brown, the immigration service follows the rule in pedestrian cases that:
... to question a person concerning his right to be in the United States, as distinguished from detaining him, a reasonable suspicion of alienage is all that is required. (Emphasis added). (Defendant's Exhibit 1, page 9, subsection 2).
The M-69 manual defines "reasonable suspicion of alienage" as follows:
2. Reasonable suspicion of alienage the degree of suspicion that an immigration officer must have before he may, *1287 pursuant to INS policy guidelines, question a person. (In the Southern District of New York an officer must have a reasonable suspicion that the person is an alien illegally in the United States. See 3 below.) This suspicion must be based on more than ethnic physical appearance, e.g., Mexican or Chinese ancestry. This "reasonable suspicion" must be based on "specific articulable facts" particular characteristics or circumstances which the officer can, if called upon, describe in wordssuch as foreign manner of dress or grooming, apparent inability to speak English, officer's knowledge of a high concentration of aliens in the area, or a specific tip from an informant. (Id. at p. 3, subsection 2).
The authors of M-69 explain their reason for following a "reasonable suspicion of alienage" standard instead of the New York "reasonable suspicion of illegal alienage" standard as follows:
The Supreme Court did not decide this question in Brignoni-Ponce. The Courts of Appeals for the Seventh and Ninth Circuits and for the District of Columbia have held that to question a person concerning his right to be in the United States, as distinguished from detaining him, a reasonable suspicion of alienage is all that is required. (Footnote omitted) It is Service policy to follow this rule nationwide ... (Defendant's Exhibit 1, page 9, subsection 2).
I cannot agree with the M-69 authors' reasoning or conclusion as it applies to this jurisdiction.
It is true that Justice Powell did not expressly address the question of pedestrian stops in Brignoni-Ponce, because Brignoni-Ponce was not a pedestrian stop case. Justice Powell did note, however, that:
... when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly ... Brignoni-Ponce, supra, at 422 U.S. 881, 95 S. Ct. 2580.
If that is a miss, as M-69 claims, it is near miss. In fact, the Second Circuit, in analyzing a pedestrian stop and questioning, did not consider it a miss at all. The Second Circuit, like Delgado, Royer, Brown, and Brignoni-Ponce, required some reasonable suspicion of illegal conduct (e.g. illegal alienage) as a basis for immigration officers stopping and questioning an alien pedestrian. United States v. Sugrim, 732 F.2d 25 (CA 2 1984).
In light of Justice Powell's opinion in Brignoni-Ponce, Justice Burger's opinion in Brown, Justice White's opinion in Royer and Justice Rehnquist's opinion in Delgado, the New York rule must apply in this jurisdiction. Therefore, before an immigration officer stops and questions a pedestrian such as Ms. Aleman, the officer must have a reasonable suspicion of illegal alienage.
The statement of the constitutional rule governing this case does not necessarily require that a preliminary injunction issue. Justice Rehnquist noted in Delgado:
What is apparent from Royer and Brown is that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. Delgado, supra, ___ U.S. at ___, 104 S.Ct. at 1762, 80 L. Ed. 2d at 255.
As the Court's focus in this discussion is precisely on the question of "likelihood of success", Justice Rehnquist's words have added emphasis.
In reviewing the facts of the paradigm Aleman stop, the Court finds there may have been reasonable suspicion of illegal alienage. The officer states that the red shirt with white feathers indicated illegal alienage. The geographical area, the officer stated, is known to be frequented by illegal aliens.
In the context of the preliminary injunction proceedings, the Court is unable to conclude that there is a high likelihood that the immigration officers did not have a reasonable suspicion of illegal alienage. The officers may be able to prove at trial that illegal aliens wear "gaudy" clothing, and the officers may also be able to show by preponderating statistical evidence that *1288 the geographical area around the stop is reasonably suspected of harboring illegal aliens. Those facts are, at this point, of large significance but little certainty. Therefore, under the substantial likelihood prong of the Mason County test, the Court will not issue a preliminary injunction as to the pedestrian stop issue. The parties are advised, however, that the foregoing analysis of the constitutional prerequisites necessary to stop a pedestrian forms "the law of the case", and will form the guidelines for considering the evidence when trial takes place. Conduct of Defendants between the date of this Opinion and trial should, of course, conform to the law as discussed, infra.
3. Workplace Surveys
In comparison to the foregoing discussion of vehicle seizures and street seizures, the discussion of workplace surveys will appear attenuated.
Plaintiffs rely on Mancusi v. Deforte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968) for the proposition that workers have a reasonable expectation of privacy in their workplace. Mancusi implemented the logic of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), to the effect that individuals on premises where a search occurs may challenge its legality when the fruits of the search are to be used against the individual in subsequent legal actions. In light of Lopez-Mendoza and Delgado, it is clear that Mancusi is inapplicable in this case as a matter of public policy. The only apparent way Mancusi could apply to this case would be for Plaintiffs to prove statistically that the relevant workplaces are not predominantly Hispanic. They have not done so.
The Supreme Court's recent rulings regarding workplace surveys indicate that a Hispanic individual's expectation of privacy in a workplace where Hispanics predominate is outweighed by the government's interests in surveying those workplaces. The foundation of the policy decision is encapsulated in Justice O'Connor's characterization of deportation proceedings in general:
... [a deportation hearing] is designed to provide a streamline determination of eligibility to remain in this country, nothing more. Lopez-Mendoza, supra, 468 U.S. at ___, 104 S.Ct. at 3485, 82 L. Ed. 2d at 786.
The burden of discovering illegal aliens in the Hispanic workplace requires that administrative efficiency prevail over some traditional notions of constitutional restraint.
The relaxation of constitutional safeguards is not total, of course. In Delgado, Justice Rehnquist wrote that a seizure requiring constitutional justification may occur in the workplace if, in view of all the circumstances surrounding the questioning, the worker reasonably believes himself or herself unable to leave freely. Delgado ___ U.S. at ___, 104 S.Ct. at 1762, 80 L. Ed. 2d at 255. But in Delgado, because technically there was no seizure, Justice Rehnquist did not go on to instruct what justification would have been required in regard to each individual questioning of a worker. (The Ninth Circuit holding in International Garment Workers Union v. Sureck, 681 F.2d 624 (CA 9 1982), which was overruled in Delgado, merely assumed that a "detentive questioning" tantamount to seizure had occurred during the workplace survey, because border patrol agents were stationed at the exits. That assumption led the Ninth Circuit to require constitutional justification of each of the questionings. The Supreme Court's holding that no seizure occurred presumably displaces the Ninth Circuit's subsequent reasoning regarding the justification required.)
I note that the affidavits of Eutiquio Montoya at Plaintiffs' Exhibit H; Vladimira Medrano, at Plaintiffs' Exhibit N; and Simon Zuniga at Plaintiffs' Exhibit Z all indicate that the immigration officers' questioning of the worker was done in the open, unlike the arguably more confining situation in Lopez-Mendoza and Delgado. The affidavits indicate that the workers *1289 were somewhat fearful of the immigration officers, but none of the Plaintiffs tried to leave. The fields were never completely surrounded. The affidavits indicate that the immigration officers' interrogations were, with the possible exception of the Medrano questioning, short-lived and polite. In fact, the testimony by Mr. Blodgett and Mr. Gaskill indicate that the most serious confrontation in the setting of the workplace surveys in this district may be the confrontation between land-owners and immigration officers. See e.g., Blodgett affidavit at Plaintiffs' Exhibit AA. Again, it is axiomatic that the Plaintiffs in this lawsuit cannot assert rights of their employers. Pilliod 1 at 900.
Having before me the recent Supreme Court holdings in Delgado and Lopez-Mendoza, as well as the parties' affidavits concerning workplace surveys, I cannot find a substantial likelihood of success on the merits of the workplace survey issue. Therefore, a preliminary injunction against workplace surveys may not issue.
B. Showing of Imminent Irreparable Injury
There is no debate that a continuing injury to the constitutional rights of an individual is irreparable harm. Planned Parenthood v. Citizens for Community Action, 558 F.2d 861 (CA 8 1977). Nor is there debate whether law enforcement violations which have been shown to have occurred and which will apparently continue to occur, justify the issuance of a preliminary injunction. See e.g. the Pilliod case-line, supra; Nicacio v. INS, 595 F. Supp. 19 (ED Wash.1984); generally, Allee v. Medrano, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566 (1964); IGWU v. Sureck, supra.
Defendants, however, contest the validity of the imminent, ongoing injury alleged by Plaintiffs because Plaintiffs' affidavits are stale, and because Plaintiffs have alternative legal remedies under the Federal Tort Claims Act or under a Bivens theory cause of action.
The imminence issue raised by Defendants is one which the Court also raised at the first hearing on this matter. It initially appeared that Plaintiffs were relying heavily on affidavits relating to alleged dwelling raids in 1980, as well as various vehicle, pedestrian, and workplace stops of recent years. Assuredly, such stale affidavits would not satisfy the imminence requirement of Mason County.
However, the Court has received sufficient affidavits involving incidents occurring during the recent months of 1984 to recognize that the disputed incidents, whether or not they eventually are determined to be unconstitutional, are, in fact, numerous and ongoing. The affidavits and exhibits of the Defendants do nothing to suggest the practices allegedly injurious to the Plaintiffs have been discontinued. Instead, Defendants' evidence illustrates consistent, ongoing conduct.
Therefore, I find that this step of the Mason County test has been satisfied. There is a potential ongoing irreparable injury validly before the Court.
C. Substantial Harm Flowing to Others from the Preliminary Injunction
The Court is mindful that immigration officers feel caught in a cross-fire between the Constitution and Congress. Congress enacted 8 U.S.C. § 1357 to require the officers to seek out illegal aliens, but the Courts have invoked the Constitution to limit the officers' performance.
My reading of the affidavits and exhibits has convinced me that immigration officials often go out of their way not to visit a hardship on Hispanic suspects. There is evidence that these officers grant extended departure visas, and similar deference to detainees. The fact that these officers perform within the bounds of humane discretion is, in fact, worthy of emphasis in this Opinion. It is also encouraging to recognize that the officers are very aware of case-law principles relating to their work.
It is precisely because the officers are intelligent and are aware of the relationship between their work and case-law that *1290 it is unlikely that they would suffer a substantial harm from an appropriate equitable order issued by the Court.
Therefore, I do not find the "substantial harm to others" consideration controlling or troubling in this case.
D. The Public Interest
The Plaintiffs have stressed in their oral argument that this case has nothing to do with illegal aliens. They emphasize that this case is brought by legal citizens, residents, and legitimate workers in the United States. In other words, the Plaintiffs are the public. Their interest is the public interest.
The Defendants would rather focus the Court's attention on a "public" defined in larger terms. Defendants stress that the abstract benefit of excluding illegal aliens through the Immigration and Nationality Act extends to virtually every citizen and resident. Officer Pfeifer, Investigator Falkowski, and General Orsack all testified that there would be a "chilling effect" (reminding me of the First Amendmentnot the Fourth, and sounding somewhat rehearsed) on immigration officers in the event that this Court issued the injunction proposed by Plaintiffs. I am particularly not persuaded, however, by that single sweeping assertion. The assertion is based on the fact, as asserted by Pfeifer, Falkowski, and Orsack that the average immigration officer would be confused by yet another Court opinion, and therefore would be unwilling or unable to operate in this jurisdiction. In fact, the preliminary injunction anticipated by the Court adds virtually nothing, except the weight of immediacy, to the constitutional rules of search and seizure.
The Court's deliberation on the Plaintiffs' Motion for a Preliminary Injunction has, perhaps to a greater degree than any recent case, focused on the public interest prong of the Mason County test. The Court has weighed the strong public interest in preventing illegal aliens to be present in this jurisdiction, and the Court has weighed the strong public interest of the Plaintiff class in being free from unreasonable search and seizure. Additionally, the Court has weighed the general public's interest in assuring that its federal immigration officers, who enjoy a somewhat broader-than-normal scope of police power, do not exceed the scope of their authority.
The testimony of General Orsack, a polite and cooperative witness, would indicate that INS officers operating in this jurisdiction under his control do not, in fact, understand the constitutional limitations on their police power. General Orsack's testimony strongly suggests that officers may act against the public interest, both as to the specific class of Plaintiffs in this legal action, and as to the general public. The Court derived the impression from General Orsack's testimony that:
1. Although "geographical area" is a significant factor in deciding to stop a vehicle, the agency does not keep statistics, or develop reliable statistical proof regarding specific suspect sites. This suggests the possibility of arbitrary determinations of suspect geographical areas.
2. The M-69 document sets search and seizure policies for the immigration service. Following the 1983 revision of the M-69 document, there may not have been sufficient agency procedures to ensure that all INS officers comprehend the revisions. This suggests that officers may not be apprised of case law development and may not be capable of conforming their conduct accordingly.
3. General Orsack, who is in charge of the Sector which includes Michigan, Ohio, Illinois and Indiana, testified that he does not perceive a substantial difference between automobile stops in El Paso, Texas, and Hartford, Michigan. General Orsack also testified that M-69 sets a national policy and further, that he perceives there to be a local policy of search and seizure but that he is uncertain as to how the local policy is promulgated. All of this data, and additional data elicited by affidavits and live testimony, indicate that the immigration service *1291 may not sufficiently distinguish between search and seizure conditions and factors theoretically existing in the Southern and Southwestern part of this country, and those circumstances existing in this jurisdiction.
4. General Orsack, who is in charge of all officers of the INS in this jurisdiction, testified that a stop of a vehicle would not be justified on the following facts: old car, Hispanic driver, agricultural area, work clothes, and glancing at an INS automobile. Yet, on the basis of the Defendants' affidavits, it would appear that vehicle stops are, in fact, rationalized on that set of facts, and in many instancesless facts. This would suggest that immigration officers are not following local agency policy.
5. Following his cross-examination testimony concerning the hypothetical facts set forth in ¶ 4 above, General Orsack appeared to testify that "reasonable suspicion" and "articulable facts" are best determined by the officers' personal experience. This conclusion is, of course, wrong for at least two reasons: (1) the individual officer may have no experience except at the Mexican border, as the General testified, and may be acting alone and without supervision, and therefore without knowledge of local policy; and (2) the factors which the General did not believe were sufficient for a stop were stated as sufficient in the affidavits of the officers, and even fewer factors amounted to "articulable facts" in some of their affidavits.
6. General Orsack testified that he is the agency officer in charge of ensuring compliance with the guidelines set forth in the M-69 manual. The General testified that he "assumes" that officers follow the M-69 manual. He further testified that in 14 years service in the INS, he has never reprimanded an officer for an unconstitutional search. When questioned as to whether individual immigration officers would stop a vehicle under the hypothetical circumstances in paragraph 4 above, General Orsack testified, "I can't speak for each individual officer." This would suggest the possibility that supervision over local search and seizure practices may be unsystematic. One cannot have it both ways: on the one hand expressing total confidence in the officers' understanding of M-69 and the Constitution, while on the other hand expressing a lack of knowledge about the officers' actions while on "operational details" in this jurisdiction.
7. Testimony and affidavits offered by the Defendants indicate the possibility that search and seizure of vehicles in this jurisdiction rests largely or solely in the discretion of the individual immigration officer.
The public interest in a systematic and constitutional local policy of search and seizure is clear and compelling.
III. Conclusion
A central issue in this case, as the description of the Plaintiff class indicates, is whether Hispanic appearing United States citizens and residents are unreasonably singled out for intrusion and interrogation by immigration officers. In reflecting on the arguments of the partiesthe Plaintiffs claiming harassment and the Defendants claiming justification by way of national policyI cannot help recalling the oft-cited fact that the United States is a "melting pot" nation.
In Brignoni-Ponce, Justice Powell wrote the following:
In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens ... Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief the car concealed other aliens who were illegally in the country ... The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all *1292 Mexican-Americans to ask if they are aliens. Brignoni-Ponce at 422 U.S. 885-887, 95 S. Ct. 2582-2583.
If we truly are a "melting pot" nation, then are we not, in Michigan, in the middle of the pot where the broth has most thoroughly combined? Has not most, if not all the separate, adverse inference of illegal alienage dissolved from Hispanic citizens and residents? Should not the weight of appearance lift from them, and should not the immigration officers be required to show, at this distance from the southern border, a commensurately heavier weight of factors other than appearance?
INJUNCTION ORDER
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, and pursuant to this Court's written Opinion containing findings of fact and conclusions of law, attached hereto and made a part hereof, a preliminary injunction will issue on this date without security in accordance with the logic of the Court in Bass v. Richardson, 338 F. Supp. 478 (SD N.Y.1971).
IT IS HEREBY ORDERED:
THAT: JACK E. WEBB AND GREGORY KOWALSKI, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS AGENTS OF THE IMMIGRATION AND NATURALIZATION SERVICE; PAUL E. McKINNON, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE; JERALD D. JONDALL, BOTH INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DISTRICT DIRECTOR OF THE UNITED STATES BORDER PATROL; RONALD DOWDY AND EDWIN W. EARL, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY AS AGENTS OF THE UNITED STATES BORDER PATROL; JOHN DOES I THROUGH 44, BOTH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS AGENTS OF THE IMMIGRATION AND NATURALIZATION SERVICE OF THE UNITED STATES BORDER PATROL ARE RESTRAINED FROM STOPPING AUTOMOBILES IN THIS JUDICIAL DISTRICT CONTAINING PERSONS OF MEXICAN OR HISPANIC ORIGIN OR APPEARANCE, WITHOUT A VALID SEARCH OR ARREST WARRANT, OR WITHOUT FIRST HAVING IDENTIFIED OBJECTIVE ARTICULABLE FACTS AND REASONABLE INFERENCES TO SUPPORT A REASONABLE SUSPICION THAT THE VEHICLE CONTAINS AN ILLEGAL ALIEN. HISPANIC APPEARANCE ALONE IS NOT SUFFICIENT FACT TO JUSTIFY A STOP. THE SUBJECTIVE IMPRESSIONS OF THE OFFICER(S) ARE NOT ALONE SUFFICIENT TO JUSTIFY A STOP. THE OFFICER MAKING THE STOP SHALL IDENTIFY THE SPECIFIC ARTICULABLE FACTS LEADING TO THE STOP TO THE PERSON(S) STOPPED. THE DEFENDANTS SHALL KEEP A RECORD OF THE SPECIFIC ARTICULABLE FACTS RELIED UPON FOR EACH VEHICLE STOP, PENDING THE OUTCOME OF THIS LAWSUIT. THE RECORDS OF ALL AUTOMOBILE STOPS UNDER THE CONDITIONS OF THIS INJUNCTIVE ORDER SHALL BE ACCUMULATED AND MAINTAINED ACCURATELY AND ADEQUATELY TO BE PRODUCED UPON COURT ORDER.
NOTES
[1] The words of the officer are taken almost verbatim from M-69. While constitutionally correct, the conclusory nature of the words quoted here is not factually persuasive regarding the circumstances of the vehicle stop.
[2] As a corollary to footnote 1, I note that the officer's conclusions about the constitutional prerequisites to a "stop" appear to comport with a pedestrian stop, and not a vehicle stop.
[3] I do not, and will not answer these questions because it is not the duty of a court to write instruction manuals. I will, however, rule on whatever constitutional violations I find, because that is the duty of a court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2995967/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1598
GERALD SCHOBERT AND RONALD E. WERNER
Plaintiffs-Appellants,
v.
ILLINOIS DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois, East St. Louis Division.
No. 99-CV-67—Michael J. Reagan, Judge.
____________
ARGUED JANUARY 8, 2002—DECIDED SEPTEMBER 16, 2002
____________
Before POSNER, COFFEY, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. This appeal follows a jury
verdict in favor of the defendant Illinois Department of
Transportation (IDOT). Gerald Schobert and Ronald
Werner, maintenance workers for IDOT, accused their
employer of violating Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. They argued unsuccessfully
to the jury that IDOT discriminated against men by per-
mitting the one woman in the maintenance department to
be a “beneficiary” of what they called quid-pro-quo sexual
harassment. They also maintained that they were retali-
2 No. 01-1598
ated against after complaining about the discrimination.
Schobert and Werner now appeal the district court’s denial
of their motion for a new trial, arguing that the jury was
improperly instructed. We affirm the judgment of the dis-
trict court.
I
Schobert and Werner were employees in IDOT’s highway
sign shop in Fairview Heights, Illinois. Their responsibili-
ties included installing and maintaining signs, marking
pavement, and painting lines on the highway. One—and
only one—of their colleagues was female: Tame Roth. Much
of their trial testimony centers around her, and the prefer-
ential treatment they believed she received. Werner and
Schobert testified that Roth received special treatment
because of her sex. For example, Werner claimed that he
saw Roth sit in a suggestive way on Blake Pfannebecker,
the lead worker responsible for determining assignments.
Schobert also claimed Roth once took her shirt off in front
of an assistant technician (a position above other lead
workers such as Pfannebecker).
In addition, Werner and Schobert testified that Roth
received special treatment at the sign shop. They main-
tained that Roth was not required to do the more difficult
and dangerous jobs and that she never performed the
preventative maintenance work on her assigned truck
required of other employees. Schobert further claimed that
when he was forced to work with Roth, all the undesirable
assignments were reassigned to either him or other male
employees.
In September 1997, Schobert backed a truck into another
vehicle, causing substantial damage. He was given notice of
a pre-disciplinary hearing to review the incident. After
Schobert received the notice, he filed an internal complaint
No. 01-1598 3
of sex discrimination because his complaints regarding
Roth’s special treatment were being ignored. In his com-
plaint, he asserted that IDOT provided Roth preferential
treatment because of her sex. Schobert, this time with
Werner’s signature as well, then filed a complaint with the
Equal Employment Opportunity Commission (EEOC) again
alleging sex discrimination.
IDOT interviewed Schobert, Werner and others regarding
the internal sex discrimination complaint. Soon after the
interview, Schobert and Werner first experienced what they
considered to be retaliation. Their complaints range from
being forced to work in unsafe conditions to being unfairly
subject to discipline. For example, Schobert testified that he
was forced to use a cutting torch near natural gas, that he
was assigned to dig on an interstate that had not yet been
“JULIE’d” (checked and marked for underground wires and
utilities), and that he and Werner were forced to miss part
of the training on safety harnesses. Schobert also alleged he
was assigned for months to remove and install delineators
(steel posts with reflectors on the side of the road) without
proper equipment, even though such arduous work is or-
dinarily rotated. This assignment continued until he was
forced to go on leave because of back and hand problems.
Schobert and Werner further testified that IDOT retali-
ated by giving them incorrect assignments and blaming
them for other employees’ mistakes—all conduct that could
and did result in negative employment evaluations. For
example, Schobert claims that Pfannebecker tried to get
him to submit a false time sheet, that he and Werner were
blamed for leaving the gate to the supply yard open, and
that they were given conflicting assignment information by
the supervisors and were then blamed for the resulting
confusion. Schobert and Werner also complained that they
were forced to work with Joe Marti, the crew chief at the
sign shop, who would stop for lunch breaks in places that
had no bathroom and where they could not purchase lunch
as they liked to do. Finally, when Werner was crew lead-
4 No. 01-1598
er he was reprimanded for unfairly rotating duties. Al-
though some of these incidents led to negative evaluations,
Schobert and Werner were never disciplined and continued
to be employed by IDOT.
Although the jury heard all of this, most of what we have
recounted thus far came from either Schobert and Werner.
The problem for them, in a nutshell, is that the jury was
not compelled to accept their version of these events, or
their interpretation of the motivations behind these actions.
Instead, at this stage we must take the facts in the light
most favorable to IDOT, the winner of the jury verdict.
EEOC v. Bd. of Regents of Univ. of Wis. Sys., 288 F.3d 296,
301 (7th Cir. 2002). The jury had a considerable amount of
evidence in front of it that was contrary to Schobert’s and
Werner’s testimony, and it chose to believe IDOT’s wit-
nesses. IDOT denied it ever discriminated against or har-
assed Schobert or Werner. Roth and Pfannebecker main-
tained that she never sat on Pfannebecker’s lap, and Roth
also testified that she never removed her shirt in another
employee’s truck. Finally, IDOT offered testimony that
Schobert expressed derogatory views about women gener-
ally, and that he openly expressed the opinion that women
should not be in the workplace or have supervisory roles.
Pfannebecker and Dan Myers, head of the sign shop, also
testified that Schobert and Werner had personality conflicts
with sign-shop management and that they did not make
good-faith efforts to perform assignments.
After surviving pretrial motions, this case was tried to
a jury on Schobert’s sex discrimination claim as well as
Schobert’s and Werner’s retaliation claims. At the close of
evidence, the district court submitted a series of instruc-
tions to the jury. Schobert and Werner objected specifically
to Court’s Instructions 12 and 13. Court’s Instruction
12 stated with reference to Schobert’s sex discrimination
claim:
No. 01-1598 5
Gerald Schobert claims that he sustained damages and
that the Department of Transportation of the State of
Illinois intentionally discriminated against him because
of his sex in one or more of the following respects.
In giving him significantly worse job assignments
than were given to a female employee.
In allowing a female employee to refuse undesirable
job assignments.
Schobert further claims that the foregoing directly re-
sulted in his damages.
Defendant denies that it discriminated against Scho-
bert because of his sex and denies that any act or
omission on its part directly resulted in Schobert’s
claimed damages. The defendant further denies that
Schobert sustained damages.
Court’s Instruction 12 contained similar instructions on
Schobert’s and Werner’s retaliation claims.
Although we are only reproducing the portion of Court’s
Instruction 13 that applied to Schobert, the part of the
instruction applicable to Werner’s claim was identical. On
the retaliation claims, Schobert and Werner each had to
prove:
First, that the defendant intentionally acted in the way
claimed by Schobert stated to you in these instructions;
Second, that Schobert suffered adverse employment
action, as that term is defined in these instructions,
Third, that there was a causal connection between
Schobert’s internal claim of sex discrimination and/or
his filing a Charge of Discrimination with the United
States Equal Employment Opportunity Commission
and the adverse employment action,
Fourth, that Schobert suffered damages,
6 No. 01-1598
Fifth, that Schobert’s damages were a direct result of
defendant’s wrongful conduct. . . .
Schobert and Werner argued Court’s Instruction 12 im-
properly required the jury to find that Schobert and Werner
sustained damages to prevail. They further objected to
Court’s Instruction 13, arguing that it incorrectly in-
structed the jury on the elements of a prima facie case for
retaliation, which was no longer relevant after the case was
submitted to the jury. The district court did not alter the
instructions, emphasizing that Court’s Instruction 13 was
“not an instruction as to the prima facie case, but instead
is an instruction as to the burden of proof.”
The jury found in favor of IDOT, and Schobert and
Werner filed a motion for a new trial, claiming they were
prejudiced by the jury instructions. The district court
denied the motion and they appeal from that order.
II
The centerpiece of the appeal is the attack on the jury
instructions just set forth. Schobert and Werner claim that
these instructions misstated the law and that they suffered
prejudice from the inaccuracies. We review a district court’s
decision on a motion for a new trial only for abuse of dis-
cretion, as we recognize the district court is in a unique
position to rule on the motion. Research Sys. Corp. v.
IPSOS Publicite, 276 F.3d 914, 921 (7th Cir. 2002). When
a motion for a new trial under Fed. R. Civ. P. 59 is based on
a challenge to jury instructions, we consider a trial court’s
jury instructions with deference, analyzing them as a whole
to determine if they accurately stated the law and did not
confuse the jury. Knox v. Indiana, 93 F.3d 1327, 1332 (7th
Cir. 1996); Maltby v. Winston, 36 F.3d 548, 560 (7th Cir.
1994).
No. 01-1598 7
As an initial matter, IDOT claims that Schobert and
Werner failed properly to preserve their objections as re-
quired by Fed. R. Civ. P. 51. Rule 51 provides in relevant
part that any party wishing to contest a jury instruction
must distinctly state the matter objected to and the ground
of the objection. The objection must be specific enough that
the nature of the error is brought into focus. Knox, 93 F.3d
at 1333; Mankey v. Bennett, 38 F.3d 353, 361-62 (7th Cir.
1994). The party must also explain what is wrong with the
proposed instruction; it is not enough simply to submit an
alternative instruction. Pena v. Leombruni, 200 F.3d 1031,
1035 (7th Cir. 1999). There are no formal requirements, but
pragmatically speaking the district court must be made
aware of the error prior to instructing the jury, so that the
judge can fix the problem before the case goes to the jury.
Guerts v. Barth, 892 F.2d 622, 624 (7th Cir. 1989). Consis-
tency is required as well; to preserve the objection, the
party must state the same grounds when objecting to the
jury instruction as it does in its motion for a new trial or on
appeal. Charles A. Wright, Arthur R. Miller & Edward H.
Cooper, FEDERAL PRACTICE & PROCEDURE 2d § 2554 (2d ed.
1997).
IDOT admits that Schobert and Werner objected to these
instructions. However, it argues that their objections were
so vague they could not meet the requirements of Rule 51.
Schobert’s and Werner’s specific objection to Court’s In-
struction 12 was that “it requires the jury to find that Mr.
Schobert and Mr. Werner sustained damages in order for
them to prevail on their claims of discrimination and
retaliation.” As for Instruction 13, Schobert and Werner
stated:
the jury is going to have to find that Mr. Schobert and
Mr. Werner suffered damages in order to establish their
claims of gender discrimination and retaliation. Also,
we would object in that it states the elements of prima
facie case . . . and, we believe that there is no more
8 No. 01-1598
requirement of showing an adverse employment action
in order to establish a case of actionable retaliation.
We are satisfied that this was a specific enough objection
to serve the purpose for which Rule 51 was designed.
Schobert and Werner made it clear that they thought the
instructions were flawed in three respects: (1) they errone-
ously required the plaintiffs to prove damages to prevail, (2)
they wrongly submitted the prima facie case to the jury,
and (3) they incorrectly required the plaintiffs to prove an
adverse employment action for their retaliation theory. This
was enough to alert the district court to the pertinent areas
of disagreement.
IDOT also criticizes Schobert and Werner for failing to
present their preferred instruction to the district court. It
maintains that the district court probably misunderstood
the grounds for the instruction because of their failure to
propose that the district court use the term “injury” instead
of the term “damages” in the two instructions (which they
think would have been preferable). IDOT goes on to state
that Schobert and Werner should have told the district
court that they were satisfied with IDOT’s proposed in-
struction, which (according to IDOT) would have resolved
their concerns. However, IDOT cites no case to support its
argument that a party must approve of the opposing party’s
proposed instruction, which was also rejected by the district
court, to preserve a Rule 51 objection. Schobert and Werner
informed the district court that they objected to the use of
the term “damages” and the requirement that they estab-
lish a prima facie case; that is all they needed to do.
Schobert and Werner argue that Court’s Instructions 12
and 13 were inaccurate statements of law and were incon-
sistent with other instructions, which confused the jury.
This court looks at jury instructions in their entirety when
determining whether they properly informed the jury of the
applicable law. Reed v. Union Pac. R.R. Co., 185 F.3d 712,
No. 01-1598 9
715 (7th Cir. 1999). We are not looking for an “idealized set
of perfect jury instructions,” Knox, 93 F.3d at 1333, but the
jury instructions must be correct legal statements and
supported by the evidence. Jaffee v. Redmond, 51 F.3d
1346, 1353 (7th Cir. 1995). If an instruction is so mislead-
ing that a party was prejudiced, then reversal is required.
Humphrey v. Staszak, 148 F.3d 719, 723 (7th Cir. 1998).
Court’s Instruction 12 required Schobert and Werner to
prove that they suffered damages, and that their damages
were a result of wrongful conduct. Schobert protests that
under these instructions, IDOT could discriminate against
him on the basis of his sex, but he would not prevail if he
could not show damages. Similarly, Schobert and Werner
could prove they were subjected to unfair working condi-
tions and disciplinary actions, but would not prevail if they
could not demonstrate material damage. They argue that
this statement confused the jury because Title VII plaintiffs
do not have to prove damages, but must only prove discrim-
ination. (A prevailing party in a case with no concrete
damages like lost wages would still be entitled to an award
of nominal damages.) Schobert and Werner thus urge this
court, on the basis of authority such as Kyles v. J.K. Guard-
ian Sec. Servs., Inc., 222 F.3d 289, 298 (7th Cir. 2000)
(finding that employment discrimination “testers” who were
discriminated against had standing to sue under Title VII
even if they were not interested in employment), to find
that discrimination need not result in any damage, but that
it is the discrimination or unequal treatment that allows
plaintiffs to recover.
The problem with their argument (and for that matter,
with the court’s instructions, which we deal with in a
moment) is that it confuses the idea of monetary damages
with the idea of harm. Even in cases with no monetary
consequences to the plaintiff, it is still necessary for the
plaintiff to prove at least a dignitary harm. We know of no
authority that would permit us to find that no demonstra-
10 No. 01-1598
tion of harm is required to prevail. Every tort, whether it be
one derived from common law or a statutory tort like Title
VII, requires a showing of harm. JTC Petroleum Co. v.
Piasa Motor Fuels, Inc., 190 F.3d 775, 778 (7th Cir. 1999);
see also Timm v. Progressive Steel Treating, Inc., 137
F.3d 1008, 1010 (7th Cir. 1998) (“a plaintiff must suffer
some injury”) (emphasis in original). Indeed, Schobert and
Werner even argued to the jury that they were injured. For
example, Schobert asserted that he was assigned tasks on
the basis of his gender and treated differently. That is a
perfect example of harm that did not translate into dollars
and cents: his salary was unaffected, but he allegedly suf-
fered from undesirable job assignments and bearing the
brunt of others’ preferred treatment.
Schobert is correct that discrimination plaintiffs may
prevail even if they will receive very little by way of eco-
nomic compensation. Kyles, 222 F.3d at 298 (noting a
victim may still bring a Title VII suit even if her relief may
be limited). Plaintiffs may see value in a verdict against the
defendants even if they only receive nominal compensation,
and we have noted before that a civil rights plaintiff may
act as a “private attorney general vindicating a policy that
Congress considered of the highest importance.” Dunning v.
Simmons Airlines, Inc., 62 F.3d 863, 872 (7th Cir. 1995).
But at most, this suggests that the language the district
court used in the instruction was too imprecise. The court
should not have used the term “damages” as it did in the
two challenged instructions. Instructions should distinguish
between “injury” (meaning the plaintiff’s loss) and “dam-
ages” (meaning the monetary remedy). Here, unfortunately,
the single word “damages” was not used consistently. At
one point it was offered as a synonym for “injury” or
“harm,” while at another point it was presented as the “loss
of enjoyment of a normal life” and the “emotional pain,
suffering, and mental anguish experienced and reasonably
certain to be experienced in the future.” The district court
No. 01-1598 11
also gave an instruction for “nominal damages,” providing
a third use of the term. Greater precision would have
avoided the problem we are now facing.
The instruction given on the retaliation claims suffered
from the same type of flaw. The district court instructed the
jury that the plaintiffs could prevail on their retaliation
claim only if it found that they experienced “adverse em-
ployment actions.” Court’s Instruction 14 then defined an
adverse employment action as “discriminating against any
individual with respect to his compensation, terms, condi-
tions, or privileges of employment or limiting, segregating,
or classifying employees in any way that would deprive or
tend to deprive any individual of employment opportunities
or otherwise adversely affect his status as an employee.”
Schobert and Werner, pointing to the distinction the Su-
preme Court and this court have drawn between issues for
a judge and issues for a jury urge this court to find that the
instruction was an incorrect statement of the law because
it instructed the jury to find the elements of a prima facie
case. See United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715 (1983); Achor v. Riverside Golf
Club, 117 F.3d 339, 341 (7th Cir. 1997) (“[E]lements that
make up a ‘prima facie case’ are for the judge, not the
jury”); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.
1995) (“Once the judge finds that the plaintiff has made the
minimum necessary demonstration (the ‘prima facie case’)
and that the defendant has produced an age-neutral ex-
planation, the burden-shifting apparatus has served its
purpose, and the only remaining question—the only ques-
tion the jury need answer—is whether the plaintiff is a
victim of intentional discrimination.”).
Acknowledging this precedent, IDOT argues the district
court should nevertheless instruct the jury that it must find
an adverse employment action before a plaintiff may
prevail on a retaliation claim. It maintains that this is so
12 No. 01-1598
because the plaintiff bears the burden of persuasion. Yet
IDOT has not offered a reason why McDonnell Douglas
burden-shifting should apply in cases of retaliation during
trial proceedings (Schobert and Werner’s case), but not in
straightforward discrimination trials. See Achor, 117 F.3d
at 339. Retaliation is merely another form of discrimina-
tion. Knox, 93 F.3d at 1334. After the pretrial stage, plain-
tiffs needed only to demonstrate that they were discrimi-
nated against for opposing an “unlawful employment prac-
tice,” 42 U.S.C. § 2000e-3, to sustain a retaliation claim.
The jury here should have been asked only to consider
whether the plaintiffs suffered retaliation because of pro-
tected activity, rather than to decide whether the allegedly
adverse consequences amounted to an adverse employment
action. Cf. Aiken, 460 U.S. at 715.
The fact that these instructions may not have been
accurate is not, however, the end of our inquiry. If jury
instructions contain incorrect or confusing legal statements,
this court considers whether a party was prejudiced by the
instruction. United Airlines, Inc. v. United States, 111 F.3d
551, 555 (7th Cir. 1997). If the jury instructions are mis-
leading or inconsistent, we must be confident that the jury
resolved any inconsistencies. Although these instructions
were not as clear as they should have been and at times
were incorrect, Schobert and Werner have not shown that
they were prejudiced by the statements.
A. Schobert’s Sex Discrimination Claim
Schobert claims that he offered enough evidence to prove
discrimination by showing that the one woman employed at
his worksite received advantages he and the other male
employees did not. The evidence he presented does not bear
out that claim. Schobert’s argument was either that Roth
was sexually harassed and as a third-party he too suffered
from that harassment, or (more likely) that Roth had a con-
No. 01-1598 13
sensual relationship with a supervisor, who then granted
her preferential treatment. Schobert’s first argument was
rejected by the Fifth Circuit in Ellert v. Univ. of Texas, 52
F.3d 543, 546 (5th Cir. 1995). There the court held that a
plaintiff could not maintain an action for sexual harass-
ment where she was not actually subject to any harassing
conduct even if she felt discriminated against as a result of
harassment suffered by a fellow employee. We agree with
the Fifth Circuit and find that unless Schobert offered
evidence that he too directly endured the same kind of
harassment, which he has not, he does not have a claim of
sex discrimination.
His alternate argument, which is the one we understand
him to be stressing, is more akin to the employer’s favoring
the “paramour” over the other employees. Title VII does
not, however, prevent employers from favoring employees
because of personal relationships. Whether the employer
grants employment perks to an employee because she is a
protegé, an old friend, a close relative or a love interest,
that special treatment is permissible as long as it is not
based on an impermissible classification. See DeCintio v.
Westchester County Medical Center, 807 F.2d 304, 306 (2d
Cir. 1986) (rejecting the argument that male plaintiffs are
discriminated against if a supervisor prefers his female love
interest). From a practical standpoint, there is every reason
for an employer to discourage this kind of intra-office
romance, as it is often bad for morale, but that is different
from saying it violates Title VII. Had there been other
women in the sign shop, they would have suffered in
exactly the same way Schobert was allegedly suffering,
which also shows why this is not really a sex discrimination
problem.
B. Retaliation Claims
Turning to the retaliation claims, while we agree that
Schobert and Werner were not prejudiced by the instruc-
14 No. 01-1598
tion, our reasons differ from those IDOT has advanced.
IDOT argues that the plaintiffs were not prejudiced be-
cause they never received a change in compensation or
benefits and remained employed with IDOT. To the extent
that IDOT thinks that plaintiffs must prove an economic
loss to support a retaliation claim, it is mistaken. In fact,
we have often recognized non-economic forms of retaliation.
See, e.g., Markel v. Bd. of Regents of the Univ. of Wis. Sys.,
276 F.3d 906, 911-12 (7th Cir. 2002) (noting that employ-
ment discrimination results frequently in economic harm,
but leaving room for non-economic injury); Knox, 93 F.3d at
1334 (“There is nothing in the law of retaliation that re-
stricts the type of retaliatory act that might be visited upon
an employee who seeks to invoke her rights by filing a
complaint.”); Smart v. Ball State Univ., 89 F.3d 437, 440-42
(7th Cir. 1996) (describing the wide range of possible
adverse employment actions). The question for juries is not
whether a plaintiff demonstrated an adverse employment
action, it is whether the plaintiff can point to an adverse
event that occurred after asserting her protected rights; this
could include non-employment activities such as brick-
throwing, tire-slashing or other unfortunate acts. The only
requirement is that the adverse act must occur because of
the employee’s exercise of protected rights.
That being said, not every slight or inconvenience is
adverse enough to count as retaliation. Non-economic em-
ployment actions such as requiring a maintenance worker
to do an undesirable job, Conley v. Vill. of Bedford Park, 215
F.3d 703, 712 (7th Cir. 2000), by themselves are not
retaliatory acts forbidden by Title VII. The key question for
us is whether the limitation found in the instructions (to
employment actions) prejudiced Schobert and Werner.
Schobert and Werner spend several pages of their brief
describing the acts that they believe were retaliatory. Their
complaints ranged from receiving undesirable assignments
to being blamed for other employees’ mistakes. Although
No. 01-1598 15
these acts did not affect the “compensation” or “terms” of
employment, the district court’s definition of adverse
employment action included the “conditions” and “privi-
leges” of employment. It then went on to state that an ad-
verse employment action covered anything that involved
“limiting, segregating, or classifying employees in any way
that would deprive any individual of employment opportu-
nities or otherwise adversely affect his status as an em-
ployee.”
Schobert and Werner have not alleged that IDOT retali-
ated against them outside of their employment. In their
version of events, no one threw a rock through Schobert’s
bedroom window or slit Werner’s tires. The “adverse” acts
alleged by Schobert and Werner related only to the condi-
tions of their employment and their access to employment
privileges. Under the instructions as given, the jury was
therefore free to consider everything they presented, be-
cause all of the alleged retaliation occurred in the employ-
ment context. The jury simply did not believe their version
of events. We are confident that it heeded all the instruc-
tions and that it did not find that Schobert’s and Werner’s
conditions or privileges of employment were affected after
they complained about sex discrimination.
III
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-16-02 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/127723/ | 537 U.S. 1233
BROPHYv.PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW.
No. 02-979.
Supreme Court of United States.
March 3, 2003.
1
CERTIORARI TO THE COMMONWEALTH COURT OF PENNSYLVANIA.
2
Commw. Ct. Pa. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2899124/ | NO. 07-09-0108-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 29, 2009
______________________________
IN THE INTEREST OF D.A.C.,
                                                                                      A Child
_________________________________
FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NO. 12,093; HON. STEVEN RAY EMMERT, PRESIDING
_______________________________
Abatement and Remand
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Appellant, Jennifer Carpenter, appeals from the termination of her parental rights
to her minor child, D.A.C. Her appointed counsel has filed a motion to withdraw, together
with an Anders
brief, wherein he âfinds no error in the record and urges this Court allow
him to withdraw as Appellantâs attorney.â
On June 22, 2009, counsel for the Texas
Department of Family and Protective Services filed a response to the Anders brief
contending, among other things, that appellantâs counsel failed to address the nine issues
for appeal raised in appellantâs statement of points on appeal.
          We, too, find the brief to be deficient not only by failing to follow the procedural
requirements pursuant to Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18
L. Ed. 2d 492 (1967), but by failing to address the issues raised by appellant in her
statement of points. While we make no comment upon their ultimate merit, they
nonetheless pose arguable issues for appellate review. Thus, we do not accept appellate
counselâs representation concerning the merits of the appeal.Â
          Counselâs representation also poses another problem. In his uttering, via a public
record, that the appeal was meritless, one can reasonably question whether a conflict of
interest has arisen between counsel and client. So too could it be reasonably questioned
whether by making the statement, Carpenterâs current attorney can zealously represent her
if allowed to remain her attorney of record.
          Accordingly, we abate the appeal and remand the cause to the 31st District Court
of Wheeler County, Texas. Upon remand, the trial court shall remove appellantâs current
attorney and appoint another to represent her in this appeal. The trial court shall further
order the newly appointed counsel to file an appellantâs brief, as per the Texas Rules of
Appellate Procedure, developing the aforementioned arguable grounds, and all other
grounds that might support reversal or modification of the judgment. Should new counsel
determine, after a thorough review of the appellate record, that the appeal is indeed
frivolous, he may opt to file an Anders brief; however, he must comport with the
requirements specified in In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and In
re J.B., __ S.W.3d ___, 2009 WL 283197 (Tex. App.âEl Paso February 5, 2009, no pet.
h.) before doing so.
          The deadline for filing an appellantâs brief with the clerk of this appellate court is
extended to August 10, 2009, unless further extended by this court. Any responding brief
which the Department may care to submit shall be filed within 30 days thereafter. Finally,
the trial court is further directed to inform this court, in writing, of the name, address, and
state bar number of Carpenterâs newly appointed counsel by July 10, 2009.
          It is so ordered.
Â
                                                                                      Per Curiam
Â
Â
cent 5"/>
NO. 07-09-0383-CV
Â
IN THE COURT OF
APPEALS
Â
FOR THE SEVENTH
DISTRICT OF TEXAS
Â
AT AMARILLO
Â
PANEL A
Â
FEBRUARY 9, 2010
Â
__________________________
Â
THE STATE OF TEXAS,
APPELLANT
Â
V.
Â
FORTY-TWO (42)
GAMBLING DEVICES, AND THIRTY-SEVEN THOUSAND
EIGHTY-ONE DOLLARS
AND EIGHTY-NINE CENTS ($37,081.99) IN
UNITED STATES
CURRENCY, APPELLEE
__________________________
Â
FROM THE 181ST
DISTRICT COURT OF POTTER COUNTY;
Â
NO. 89-859-B;
HONORABLE BRYAN POFF, JR., JUDGE
____________________________
Â
Â
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Â
Â
ORDER
Â
Â
Appellee Merri Lewis as executor
of the estate of Mike Lewis filed a motion entitled T.R.A.P. Rule 24 Motion to
Unsuspend Enforcement of Trial Court Order.ÂÂ According to a certificate of conference
attached to the motion, the State opposed the requested relief. We held the motion for ten days but the State
filed no response. See Tex. R. App. 10.3(a) & 10.1(b).
           This appeal is brought by the
State. The record on the StateÂs appeal
has not been filed so we look to LewisÂs motion and attached exhibits for the
factual background surrounding the motion.Â
In the trial court, the State sought forfeiture of seized personal
property and money under Article 18.18 of the Code of Criminal Procedure. See Tex. Code
Crim. Proc. Ann. art. 18.18 (Vernon Supp. 2009). In one document, the trial court dismissed
the StateÂs case for want of prosecution and ordered delivery of the seized
property to Lewis. The State gave
written notification to the sheriff that release of the property would be
premature because of its appeal of the order.Â
The State subsequently filed a motion to reconsider and notice of
appeal.
           By the motion, Lewis asks us to
Âdetermine that the Trial Court Order was never effectively suspended and order
it complied with, or, alternatively, order that the Trial Court order be
unsuspended so that it can be enforced to place the parties in this appeal in
the posture that equity dictates.Â
           By her motion Lewis attempts to
invoke Rule of Appellate Procedure 24.Â
Rule 24.4 permits a party to the appeal to seek review of a trial
courtÂs ruling on supersedeas issues. Tex. R. App. P. 24.4(a).[1]
But the limited record Lewis presents does not include a trial court order
concerning supersedeas of the judgment, or otherwise
demonstrate the trial court has taken any action subject to our review under
Rule 24. Rather, the record shows the
trial court ordered delivery to Lewis of property the State seized.[2]Â Issues of the effect of the StateÂs appeal of
the trial courtÂs order on possession of the seized items have not been
presented to the trial court.Â
Accordingly,
we dismiss LewisÂs motion.
It
is so ordered.
Â
Per Curiam
Â
Â
[1] Rule 24.4 lists the following as trial court rulings
subject to review:Â (1) the sufficiency
or excessiveness of the amount of security; (2) the sureties on a bond; (3) the
type of security; (4) the determination whether to permit suspension of
enforcement; and (5) the trial courtÂs exercise of discretion concerning the
amount and type of security, the sufficiency of sureties, and modification of
security if circumstances change. Tex. R. App. P. 24.4(a).
Â
[2]
Lewis also cites Rule 24.2(5) as a basis for our
authority. But this rule concerns
suspension of enforcement of a judgment in favor of a governmental entity in
its governmental capacity. Tex. R. App. P. 24.2(5).Â
Here, the State appeals dismissal of its case for want of prosecution.
 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1899325/ | 478 F. Supp. 321 (1979)
Peter CAMARATA and Jack C. Vlahovic, Plaintiffs,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Frank E. Fitzsimmons, Individually and as General President thereof, Ray Schoessling, General Secretary-Treasurer thereof, John Doe and Mary Moe (fictitious names), Individually and as editors of International Teamster, Defendants.
Civ. A. No. 78-1588.
United States District Court, District of Columbia.
September 24, 1979.
*322 Craig H. Livingston and Margaret M. Hayden, Ball, Hayden, Kiernan & Livingston, Newark, N. J., Michael Krinsky, Rabinowitz, Boudin & Standard, New York City, David Rein, Rein, Drew, Garfinkle & Dranitzke, Washington, D. C., local counsel, for plaintiffs.
Robert M. Baptiste, Washington, D. C., for Intern. Broth. of Teamsters.
Barry M. Levine, Washington, D. C., for Fitzsimmons & Schoessling.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT
JOHN H. PRATT, District Judge.
1. This is an action under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401, et seq., for a declaratory judgment that a union publication has discriminated in favor of and against certain candidates in violation of §§ 401(c) and 501(a) of the Act and for injunctive relief to prohibit future violations and to require the union publication to carry in future issues articles which publicize plaintiffs' political activities. In a memorandum opinion dated December 12, 1978, plaintiffs' claim under § 501(a) was dismissed. An evidentiary hearing on the remaining claim was held on March 12-14, 1979.
The Parties
2. Plaintiff Peter Camarata is currently a member in good standing of Teamsters, Truck Drivers Local Union 299, Detroit, Michigan. Plaintiff Jack Vlahovic is currently a member in good standing of Teamsters, Building Material, Construction and Fuel Drivers Local Union 213, Vancouver, British Columbia, Canada. Both local unions are affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter, International Union). Both plaintiffs are members of the Teamsters for a Democratic Union (TDU). In early June, 1978, plaintiff Camarata announced his intention to run for the office of general president of the International Union and plaintiff Vlahovic announced his intention to run for the office of general secretary-treasurer of the International Union at the next convention of the International Union which will be conducted in June of 1981.
3. Camarata has never been elected to any office in any affiliated teamster organization nor has he ever been employed on a full or part-time basis by any teamster entity. Camarata ran for the office of vice-president of the Local Union 299 in December, 1977 and finished third in the voting out of four candidates. He has never held any official position with any teamster affiliate. Camarata has been a member and officer of TDU since its inception in September, 1976.
*323 4. Vlahovic does not presently hold any official position with any teamster affiliate nor has he held such a position at any time since September, 1977. In 1976, Vlahovic was elected to the office of secretary-treasurer of Local Union 213, a position he held from January 11, 1977 through September 21, 1977. Prior to his election, Vlahovic had served Local 213 for approximately six years as an appointed business agent. Vlahovic has been a member of TDU since late June or early July, 1977.
5. Defendant International Union is a "labor organization" as defined by § 3(i) of the LMRDA, 29 U.S.C. § 402(i), with its principal place of business located in the District of Columbia. As such, the International Union must conduct periodic elections of officers, as prescribed by Title IV of the Act, 29 U.S.C. § 481 et seq. The International Union is governed by a constitution, the current edition of which was adopted by the duly-elected delegates to the last International Convention held during the period June 14-17, 1976.
6. Defendants Frank E. Fitzsimmons and Ray Schoessling are the general president and general secretary-treasurer, respectively, of the International Union and, as such, are "officers" within the meaning of § 3(n) of the Act, 29 U.S.C. § 402(n). Each was elected to a five-year term of office by the duly-elected delegates to the International Union's 1976 convention. They are the principal executive officers of the International Union. (Constitution, Articles VI and VII).
Election Procedures
7. Pursuant to Article IV, Section 2(d) of the Constitution, nominations and an election will be held to fill the offices of general president and general secretary-treasurer, as well as the remaining sixteen (16) positions on the International Union's general executive board and three (3) trustees, at the next convention scheduled to be conducted during June, 1981. Candidates for International Union office will be nominated at the convention and elected by delegates who have been elected by the members of affiliated bodies in accordance with the provisions of Article III, Section 5 of the International Constitution.
8. Local unions affiliated with the International Union are entitled to send a specified number of delegates to the Convention based upon the average membership of the local union over a two-year period. (Constitution, Article III, Section 2). The number of delegates to which a local union is entitled is determined at the time of the Call for the Convention, issued by the general secretary-treasurer no less than ninety (90) calendar days prior to the convening of the convention (Constitution, Article III, Section 1).
9. Local union officers and business agents who have been elected by secret ballot vote of the membership of their local union are potential delegates to any convention which may take place during their term of office (Constitution, Article III, Section 5(a)(1)). Officers and business agents elected in local unions located in the United States are generally elected to serve a three-year term of office. (Constitution, Article XXII, Section 3(a)). Officers and business agents elected in local unions located in Canada may have a term of office up to five years in length. (Constitution, Article XXII, Section 3(a)). Local union officers are usually elected on the basis of their familiarity with local problems and to provide day-to-day representation for the members of that union.
10. If, at the time of the Call for the Convention, a local union is entitled to a number of delegates in excess of the total number of elected officers and elected business agents, the local must conduct a secret ballot election to select additional delegates. Elections for the purpose of selecting additional delegates must be conducted in the same manner as are elections of local union officers and must comply with the requirements of Title IV of the Act. Elections to select additional delegates must be conducted during the period immediately prior to the convening of the convention. (Constitution, Article III, Section 5). Candidates for positions as delegates sometimes run on *324 platforms committed to positions on national union matters which may be considered at the convention.
11. Each local union affiliated with the International Union is governed by a seven member executive board comprised of officers elected by secret ballot vote in accordance with the requirements of Title IV. (Constitution, Article XXII, Section 2(a)). Each local union must adopt its own bylaws in which the local's principal officer must be specifically designated. (Constitution, Article XXII, Section 1).
12. In the event a local union is advised, at the time of the Call for the Convention, that it is entitled to fewer delegates than the total number of elected officers and elected business agents, then the principal officer of the local union has first priority to serve as a delegate. (Constitution, Article III, Section 5(a)(2)). If the local union is entitled to send delegates in addition to the principal officer, or if the principal officer elects not to attend the convention, then the local union's executive board shall designate from among the remaining elected officers and elected business agents who shall attend the convention. (Constitution, Article III, Section 5(a)(2)).
13. The number of delegates any local union will be entitled to send to the 1981 convention cannot be determined at this time or at any time prior to the Call for the Convention. Nor can the identity of any delegate from any individual local union be determined at this time. However, local union officers and business agents elected by secret ballot vote during 1978, 1979 and 1980, provided their terms of office expire after June, 1981, and provided that they are still in office at that time, are potential delegates to the 1981 convention.
14. Candidates for any office on the general executive board of the International Union or for the offices of International Trustee must be nominated during the sessions of the convention. (Constitution, Article IV, Section 2). There are no other requirements for nomination. Candidates need not be delegates or alternate delegates to the convention or even be present at the convention. Candidates seeking office in the International Union must have been in continuous good standing status in an affiliated local union during the twenty-four (24) consecutive months prior to the month in which the convention is convened and must have been continuously employed at the craft within the International Union's jurisdiction during the same period of time. (Constitution, Article II, Section 4(a)(1), (2) and (3)). Good standing status requires payment of monthly dues on or before the last business day of the current month. (Constitution, Article X, Section 5(c)). Nominees must accept nomination at the time made, either in person or, if absent, in writing. (Constitution, Article IV, Section 2).
15. The twenty-four (24) month period, within which a prospective candidate seeking election to an International Union office at the 1981 convention must maintain continuous good standing and employment at the craft, does not begin until June 1, 1979 and will expire on May 31, 1981. Accordingly, the eligibility of plaintiffs as candidates for office in the defendant International Union cannot be determined before the first day of June, 1981. There is, however, nothing in the union constitution or bylaws which prevented them from announcing their candidacy at any time.
The International Teamster
16. The official publication of the International Union is the International Teamster (hereinafter I.T.), a monthly magazine mailed to each of the union's approximately 2.3 million members. From August, 1961 through June, 1978, issues of the I.T. were published under the direction of Wellington Allen Biggs (hereinafter Biggs). Since the July, 1978 issue, the I.T. has been published under the supervision of Carl Fritz Zeller (hereinafter Zeller). Zeller began his employment with the International Union on June 1, 1978, having been hired in early May, 1978.
17. At all relevant times, the I.T. consisted of thirty-two pages of text and a cover, a total of thirty-six pages of printed *325 material. Authority to supervise the magazine staff is vested in the general president of the International Union (Fitzsimmons) who must, in turn, comply with the policies of the general executive board. (Constitution, Article VI, Section 7). When Zeller was hired, he was advised by Fitzsimmons that the magazine should be streamlined, its layout modernized to make it more readable, and its coverage of local union matters increased. To accomplish these objectives, Zeller instituted changes in the magazine's format. Beginning with the July, 1978 issue, he exercised his editorial discretion to decrease the number of pictures of the International Union's officers, instituted separate sections devoted to coverage of news emanating from affiliated local unions, eliminated several traditional feature items, e. g., a joke page, and experimented with various cover designs.
18. As a result of the changes in editorial style, since July, 1978, the number of pictures of Fitzsimmons and Schoessling and the number of times their names have appeared in the magazine have decreased in comparison to the number of pictures and names appearing in issues published prior to July, 1978. Statistics provided by plaintiffs reveal that the name "Frank E. Fitzsimmons" appeared in the magazines published during the period April, 1977 through June, 1978 an average of 34.71 times per issue and Fitzsimmons' picture appeared an average of 8.2 times per issue. However, during the period July, 1978 through January, 1979, the name appeared an average of 15.14 times per issue while the picture appeared only 3.43 times per issue. Comparable figures for Ray Schoessling show about 12.4 times per issue pre-July, 1978 and 6.0 times per issue from July, 1978 through January, 1979. Schoessling's picture appeared 3.81 times per issue and 3.00 times per issue during the respective periods. Since February, 1979, the pictures and names of Fitzsimmons and Schoessling have appeared less frequently. See defendants' supplement exhibits 1A-1F. These references, if originally overdone and somewhat tasteless, are the typical coverage of the activities of the principal officers of an organization in its "house organ." The dosage of "pablum and puffery" is not too dissimilar to that contained in corporate reports to stockholders. Because the executive officers' activities reflect the position of their organization, they in the nature of things will be participants in matters of importance to the membership and will get more publicity than anybody else as a matter of course.
19. At no time was Zeller instructed, directed, or otherwise ordered by either Fitzsimmons or Schoessling, or by any other person acting at their direction, to make changes in the magazine's new format designed to decrease the coverage of either Fitzsimmons or Schoessling. Neither Zeller nor Biggs has ever received any direction from anyone to utilize the I.T. to promote the candidacy of either Fitzsimmons of Schoessling or to discriminate against the candidacy of any individual.
20. During the relevant period, the I.T. staff has included between 2 and 4 writers. The majority of the articles appearing in any issue of the I.T. are written by the members of the magazine's staff or by members of the International Union's staff employed in other departments. Sources for the articles include government publications, materials submitted by members and affiliated local unions, press releases and news items appearing in the commercial press. The members of the magazine staff travel to conferences and meetings conducted by various union entities and report thereon. Such travel assignments during the period in question were made by either Biggs or Zeller. Decisions concerning the content of the magazines published since April, 1977 were made exclusively by Biggs until June, 1978, and thereafter by Zeller.
21. Since the 1930's the I.T. has carried a "General President's" column which has discussed matters of current interest to the membership. All issues of the I.T. published since April, 1977 have contained such a column appearing over Fitzsimmons' signature. During this period, among the matters with which the column has dealt have been contract negotiations, organizing campaigns, union pension funds, the energy crisis *326 and its effect on the various crafts at which teamster members work, the state of the nation's economy, the legislative efforts to reform the National Labor Relations Act, and the various proposals to deregulate the trucking industry.
22. All of the columns referred to above, and all other "General President's" columns printed during the period were written, over Fitzsimmons' name, by Biggs until June, 1978 and thereafter by Zeller. Neither editor discussed the topic of the monthly column with Fitzsimmons before it was written. Nor was a draft submitted in advance for Fitzsimmons' approval of the style or content. Fitzsimmons first saw the "General President's" column after the entire issue of the magazine had been reduced to final page proofs, the last step prior to the magazine's publication. Fitzsimmons never changed the content or style of the "General President's" column after his review of the final page proof.
23. In addition to reviewing the "General President's" column, Fitzsimmons also routinely reviewed the contents of the entire magazine. Usually, the final page proofs were submitted to Fitzsimmons on the morning of the last Friday of the month. Fitzsimmons returned the final page proofs later that day or, on occasion, on the following Monday when the magazine was normally sent to the printer. Fitzsimmons never made any substantive changes in the content or layout of the magazine although he reviewed the final page proofs.
24. While Fitzsimmons routinely reviewed the final page proofs of each issue of the I.T. and occasionally submitted news items for the consideration of Biggs and, most recently, Zeller, decisions as to the articles and pictures included in the magazines published since April, 1977 were made by Biggs until June, 1978, and thereafter by Zeller. Schoessling never reviewed the magazine prior to its publication and never submitted articles for the consideration of Biggs or Zeller, and, other than on one occasion when he was asked to verify a procedure utilized by his office, played no role in the publication of the I.T. during the relevant period.
25. The testimony of Biggs and Zeller established that they had the complete responsibility of supervising the researching, writing, and compilation of the magazine. They decided what articles to include, selected accompanying photographs, approved headlines and layout, and personally wrote the column bearing Fitzsimmons' name. Both performed these tasks without receiving instructions from Fitzsimmons or Schoessling as to the materials to be included or excluded from the magazine. Neither Biggs nor Zeller submitted articles, pictures or the "General President's column to Fitzsimmons before the magazine was prepared in final page proof form. Neither discussed articles or the content of the "General President's" column with Fitzsimmons prior to the preparation of the final page proofs. Neither submitted final page proofs to or discussed the content of the magazine with Schoessling. During the relevant period, Fitzsimmons never made any substantive changes in the final page proofs of either the "General President's" column or the remainder of the magazine.
26. In March, 1977, it was announced that Fitzsimmons would resign from his position as a trustee of the Central States, Southeast and Southwest Areas Pension Fund (hereinafter Central States Pension Fund). The administration of this particular Fund had long been a matter of controversy extensively reported in the various news media. This resignation resulted in an outbreak of speculation, widely reported, that Fitzsimmons would also shortly resign from the office of general president of the International Union, a position to which he had been elected only eight months earlier. The possibility of Fitzsimmons' imminent resignation was widely discussed during March, 1977 by members of the International Union, including dissident teamster members who belonged to TDU. As part of his duties, Biggs repeatedly advised reporters that Fitzsimmons did not intend to resign from the office of general president but the news reports of his impending resignation and the rumors to that effect continued.
*327 27. In the April, 1977 issue of I.T., Biggs, included in the "General President's" column the statement that "I not only will serve out my term, but will be a candidate for reelection in 1981." As was customary, the column appeared over Fitzsimmons' signature. Biggs wrote the column without prior discussion with Fitzsimmons. Fitzsimmons had not previously told Biggs that he would be a candidate for reelection in 1981. However, Biggs was aware that Fitzsimmons had issued a statement to the news media in Chicago, on March 16, 1977, denying that he was going to resign from the office of general president and stating that he would be a candidate for reelection in 1981. Fitzsimmons first saw the column when it was submitted to him in final page proof form along with the remainder of the magazine. The evidence does not establish that Schoessling ever announced his intention to be a candidate for reelection at the 1981 convention.
28. Biggs concluded that his prior efforts to put an end to the rumors of Fitzsimmons' impending resignation had been unsuccessful and, therefore, he decided to add to the routine denial of imminent resignation in the April, 1977 "General President's" column, that Fitzsimmons intended to be a candidate for reelection for emphasis. Biggs further testified that he believed that a more emphatic denial had to be issued because the effect of the persistent rumors would be, in his view, to erode the collective bargaining and organizational strength of the International Union.
29. Despite the statement in the April, 1977 issue of the I.T., the rumors concerning the imminent resignation of Fitzsimmons from the office of General President persisted and were reported in the media throughout 1977 and early 1978.
30. Fitzsimmons and Schoessling, as the two principal executive officers of the International Union, routinely receive coverage in the I.T. in connection with their active participation in issues of importance to the union's membership.
31. Neither Camarata nor Vlahovic has ever submitted an article concerning any of his activities within the union to the I.T. Neither of them has ever advised the I.T., in advance, of any union-related activity in which he planned to be a participant so that coverage of his activities could be arranged. Nor have they reported their participation in any union-related event after the fact. No newsworthy union activities of plaintiffs were deliberately excluded from coverage in the I.T.
32. On June 9, 1978, counsel for plaintiffs wrote to the General Executive Board demanding that the next issue of the I.T. include an article announcing plaintiffs' candidacies. Schoessling responded on June 12, 1978, on behalf of the General Executive Board, and advised that the matter would be considered by the General Executive Board at its next regularly scheduled meeting in mid-July, 1978. By letter dated August 4, 1978, plaintiffs' counsel was notified that an announcement would be carried in the August, 1978 issue of the I.T. and counsel was provided with the text of the announcement at that time.
33. The August, 1978 issue of the I.T. included on page 28 a column containing an announcement, previously approved by the General Executive Board, of the candidacies of Camarata and Vlahovic. The announcement was submitted to the I.T. by defendant union's general counsel. Neither Camarata nor Vlahovic had submitted an announcement to the I.T. for inclusion in any issue of the magazine. Nor did either plaintiff submit a picture to the I.T.
34. Zeller was responsible for the publication of the August, 1978 issue and was personally responsible for the placement of the announcement of the Camarata and Vlahovic candidacies. Zeller included it in the regional news section of the magazine in a box and printed in bold type. Zeller made the decision to print the announcement as submitted and, as a matter of editorial style, decided not to put a headline on the column. All of the decisions regarding the placement of the announcement were made by Zeller, without consultation with either Fitzsimmons or Schoessling. The announcement did not appear in the *328 July, 1978 issue because all of the space in that issue had previously been allotted, including a pre-determined amount of space reserved for the prepared statement on inflation to be delivered at a press conference on June 23, 1978.
35. Since Zeller became the editor in June of 1978, by coincidence, the same month that the plaintiffs announced their candidacy the I.T. has not contained any reference to anyone's intention to be a candidate at the 1981 convention, with the sole exception of the plaintiffs' announcement in the August, 1978 issue. During the same period, the I.T. has likewise not contained any reference to "dissidents."
The Camarata and Vlahovic Candidacies
36. TDU was founded in September, 1976. One of its originally stated purposes was to have the views of minority factions within the union included in the I.T. The TDU was also dedicated to achieving direct election of officers of the International Union, rather than the present system of election by delegates at a convention. TDU viewed "the courts and government agencies as one tool among many that is to be used . . ." to achieve these and other stated goals.
37. The official publication of the TDU is a newspaper entitled Convoy. Approximately ten issues are printed each year by members of the TDU staff.
38. At the TDU convention held in September, 1977, consideration was given to instituting a lawsuit to secure a court-ordered membership referendum type of election for International Union officers. At the time, the leadership of TDU was convinced that Fitzsimmons would resign before the expiration of his term of office in 1981. One issue of Convoy reported:
He [Fitzsimmons] recently announced that not only would he not resign, but that he would run again in 1981. This is pure bluff. There is little likelihood that he will run in 1981 and there is a real possibility that he will be gone before the next union convention four years away.
The correspondence, memoranda, and issues of the Convoy published through December, 1977 reveal that the TDU leadership wanted to obtain through litigation a court-ordered membership referendum election of officers.
39. During the latter part of 1977, TDU's attorneys advised their clients that a suit to obtain a referendum election of international officers would not have a great chance of succeeding. However, the attorneys advised that a suit could be brought which would permit TDU to mail its program to every member of the union.
40. At the January, 1978 meeting of the TDU Steering Committee, the governing body of that organization, it was reported that Fitzsimmons' impending resignation would provide TDU with a number of options, among which was the possibility of filing a lawsuit for "`equal time' in Teamster publications."
41. In February, 1978, the members of the TDU Steering Committee were advised that work on the "equal time" suit was in progress, but that the suit could not be filed until a candidate for the office of general president was selected. On March 2, 1978, the Steering Committee was advised that the "equal space" suit was "in limbo pending the determination of the Steering Committee as to who should be the TDU candidate for International President to oppose Fitzsimmons or whoever else might be running." The Steering Committee was informed that the suit was "an opportunity for TDU to get its position across to the over two million teamsters in this country." Counsel strongly urged the Steering Committee to select a candidate.
42. At the March, 1978 Steering meeting, it was reported that the "lawsuit for `equal time' was ready to go, but TDU had to come up with its candidate for General President." The Committee adopted a four part motion to (1) pursue the court suit for "equal time;" (2) designate Camarata as the TDU candidate for general president; (3) designate Jack Vlahovic as the TDU candidate for general secretary-treasurer; and (4) designate Doug Allan as the alternate *329 candidate for general secretary-treasurer in the event Vlahovic declined.
43. Vlahovic did not accept the designation as the TDU candidate for general secretary-treasurer until after May 28, 1978. Before accepting, Vlahovic first obtained a commitment that he would not incur any of the costs of the "equal time" lawsuit, which were being borne by TDU and other non-teamster contributors.
44. On June 4, 1978, Vlahovic had issued on his own behalf a "General News Release" in Vancouver, British Columbia, identifying Vlahovic as the "deposed" secretary-treasurer of Teamsters Local 213 and announcing that "he [Vlahovic] has decided to put his name in the ring at the next Teamsters International Convention in 1981" for the office of general secretary-treasurer and that "his running mate will probably be Pete Camarata, who evidently will try to unseat General President Frank Fitzsimmons . . .." Vlahovic did not submit a copy of his release to the I.T.
45. On June 6, 1978, Camarata, while on a TDU sponsored trip to Washington, D.C., announced his candidacy to a number of reporters. No written statement regarding his candidacy was issued until June 8 and Camarata did not send a copy of that release to the I.T.
46. On June 23, 1978, Camarata held a press conference on the steps of the International Union's headquarters in Washington, D.C., at which he again announced his candidacy. The conference was scheduled to begin one hour prior to a previously scheduled press conference at which Fitzsimmons was to deliver a statement of the Union's position on inflation. No advance notice of Camarata's conference was given to the I.T. nor did Camarata send copies of the materials distributed to the press to the I.T. after the completion of his conference. TDU paid for Camarata's expenses in connection with the press conference.
47. Since June 23, 1978, Camarata has traveled in the United States and Canada on behalf of TDU at TDU expense. Camarata concedes that his candidacy is based upon the TDU platform and that it is impossible to distinguish between his activities as a TDU officer and his candidacy. Camarata seeks access to the I.T. to further his campaign for general president and in the interests of TDU.
48. Since June 23, 1978, Vlahovic's travels, with the exception of his attendance at the TDU convention in October, have been limited to British Columbia. His activities have been limited to distributing copies of Convoy. Vlahovic seeks access to the I.T. to advance his candidacy.
49. Both Camarata and Vlahovic are committed to proselytizing on behalf of TDU. Neither has significantly increased his activities promoting TDU since June 23, 1978, nor have they altered the type of activities in which they are involved. The vast majority of their activities are in connection with the TDU-sponsored events designed to recruit new members, activities identical to those in which they were involved before their candidacies were announced. In short, their political activities are primarily designed toward creating an atmosphere whereby TDU will attract attention and members and thereby be able to present formidable opposition to the present management of the defendant union.
50. The focus of the plaintiffs' political campaign reflects the primary interest of TDU. TDU's long-standing goal has been to gain access to the I.T. Only after being advised by its lawyers that said goal might be achieved by designating candidates for International Union office did the TDU consider that alternative. No complaints about the content of the I.T. were made prior to that time. TDU discounted the likelihood that Fitzsimmons would serve the remainder of his current term of office, let alone be a candidate in 1981, as late as January, 1978.
51. The types of events which plaintiffs propose be included in the I.T. are essentially to publicize TDU activities. Plaintiffs apparently claim that TDU should be entitled to space in the I.T. without regard to whether its candidates are engaged in newsworthy activities of interest to teamster members nationally.
*330 CONCLUSIONS OF LAW
1. The enforcement mechanism of Title IV, LMRDA, is set forth in the provisions of 29 U.S.C. § 482, which vests the Secretary of Labor with exclusive authority to enforce violations of Title IV through post-election proceedings. The provisions of § 482 are supplemented by 29 U.S.C. § 483, which provides that the rights and remedies existing independent of the LMRDA remain in full force and effect with the exception that the remedies of § 482 are exclusive with respect to actions challenging an election already conducted. Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L. Ed. 2d 190 (1964).
2. The single exception to the exclusive enforcement power of the Secretary is found in 29 U.S.C. § 481(c). This section provides that "bona fide" candidates for union office may, prior to an election, bring private enforcement actions with respect to certain pre-election conduct. Calhoon v. Harvey, supra, at 140, 85 S. Ct. 292. Such conduct, however, must bear upon one of the guarantees of § 481(c). The provisions of § 481(c) are not an open invitation to union members to challenge any union practices which may reflect upon the elective process, but are to be narrowly construed in accordance with the congressional intent to minimize judicial interference in union elections. In this regard, a complaining union member must be a "bona fide" candidate, seeking to challenge union conduct proscribed by § 481(c), regarding a specific election in which such candidate has been nominated or is legitimately seeking nomination. Murphy v. Operating Engineers, Local 18, 99 L.R.R.M. (BNA) 2074, 2120-21 (N.D. Ohio 1978).
3. Congress explicitly intended to limit the jurisdiction of the federal judiciary over complaints alleging a violation of § 401(c) to suits filed by a "bona fide" candidate. 105 Cong.Rec. 6728 (1959).
4. Regardless of whether their dedication to the growth and development of TDU as a strong voice of dissent motivated them to become candidates, plaintiffs are "bona fide" candidates, as required by § 401(c) of the LMRDA, 29 U.S.C. § 481(c). We therefore have jurisdiction.
5. Duly elected union officials have a right and a responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern. In accordance with this responsibility, elected union officials are entitled to use union publications to express their views and to have their union activities reported in said publications. They are not ordinarily required to give space therein to the expression of contrary views. Murphy v. Operating Engineers, Local 18, supra, at 2122. It is a fine line as to when the coverage of the newsworthy activities of an incumbent official by a union publication becomes so excessive column-wise or pictorially in relation to the other matters covered by the publication so as to render it campaign literature on behalf of the incumbent. Yablonski v. UMW, 305 F. Supp. 868 (D.D.C.1969). So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election, there is no violation of § 401(c). New Watch-Dog Committee v. New York City Taxi Drivers Union, 438 F. Supp. 1242 (S.D. N.Y.1977); Sheldon v. O'Callaghan, 335 F. Supp. 325 (S.D.N.Y.1971) aff'd, 538 F.2d 313 (2d Cir. 1976).
6. The issues of the I.T. published during the period April, 1977 through August, 1979 do not discriminate in favor of or against any candidate for office in the International Union's 1981 election and are not campaign literature in the statutory sense. 29 U.S.C. § 481(c).
(a) The issues of the I.T. presently before the Court were not published at a time proximate to the election as to which relief is sought by plaintiffs. Hodgson v. UMW, 344 F. Supp. 17 (D.D.C.1972); Hodgson v. Liquor Salesmen's Union, Local No. 2, 334 F. Supp. 1369 (S.D.N.Y.1971), aff'd 444 F.2d 1344 (2d Cir. 1971).
*331 (b) Neither plaintiff was attacked either directly or indirectly in any issue of the I.T. Sheldon v. O'Callaghan, supra at 325.
(c) Neither plaintiff holds an official position with the international union or with an affiliated organization which would merit coverage in the I.T. Yablonski v. UMW, supra at 868.
(d) The plaintiffs have not participated in any newsworthy, non-political activities which merit coverage in the I.T. Hodgson v. UMW, supra at 17.
(e) The few references to "dissidents" in the I.T. appear randomly throughout the various issues, and coincide with events rather than elections. At times, months lie between such comments.
(f) The I.T. does not evidence a consistent concentrated practice of undue and excessive coverage of incumbent officers, and denigration of dissidents, as to cross that fine line which distinguishes proper reporting of union activities from re-election campaigning by defendant incumbents. Murphy v. Operating Engineers, Local 18, supra, at 2123. The facts herein are completely distinguishable from those in Yablonski, supra.
7. Defendants have not been requested by plaintiffs to distribute by mail or otherwise at plaintiffs' expense campaign literature in aid of plaintiffs' candidacies to all members in good standing.
8. Since the I.T. is not campaign literature, defendants through the publication of the I.T. have not discriminated in favor or against any candidate with respect to the use of membership lists.
9. The plaintiffs have failed to meet the burden of establishing that injunctive relief is warranted and have failed to meet the criteria for granting such relief. U. S. v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953).
10. The relief requested by plaintiffs, i. e., the nationwide mailing at union expense of plaintiffs' campaign literature and the inclusion of such literature on the basis of equal space and prominence in future issues of the I.T., is beyond the authority of this court to grant, would compel the International Union to violate § 401(g) of the LMRDA, 29 U.S.C. § 481(g), and would infringe upon the union's First Amendment rights. Yablonski v. UMW, supra at 868; Yablonski v. UMW, 307 F. Supp. 1226 (D.D. C.1969); Sheldon v. O'Callaghan, supra at 328; Hodgson v. Liquor Salesmen's Union, Local No. 2, supra at 1377.
An order consistent with the foregoing has been entered this day. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2904478/ | J-S38024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Q. H. , A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Q. H., A MINOR
No. 2043 MDA 2014
Appeal from the Dispositional Order dated August 21, 2014
In the Court of Common Pleas of York County
Juvenile Division at No: CP-67-JV-0000275-2014
BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2015
Appellant Q.H. appeals from the August 21, 2014 dispositional order of
the Court of Common Pleas of York County (juvenile court), following his
delinquency adjudication for, inter alia, driving without a license and fleeing
or attempting to elude a police officer.1 Upon review, we affirm in part and
reverse in part.
The facts and procedural history underlying this case are undisputed.
On June 9, 2014, a juvenile petition was filed against Appellant, alleging that
Appellant committed the foregoing offenses on August 2, 2013. On August
6, 2014, the juvenile court conducted an adjudicatory hearing, at which the
Commonwealth presented the testimony of Officer Ed Pague, Northern York
____________________________________________
1
75 Pa.C.S.A. §§ 1501(a) and 3733(a).
J-S38024-15
County Regional Police Department. Officer Pague testified that on August
2, 2013, while in a marked police cruiser, he observed two dirt bikes
traveling on Route 30 West at a high-rate of speed. N.T. Hearing, 8/6/14, at
4-5. He activated the emergency lights and initiated pursuit. Id. Officer
Pague testified that the riders eventually proceeded north on Interstate 83
during heavy traffic. Id. He relayed that, during the pursuit, the riders
neither stopped nor yielded, passing other vehicles in an unsafe manner.
Id. at 5. Officer Pague testified that eventually the pursuit progressed onto
less crowded roads, where one of the riders either crashed or dropped the
dirt bike and fled. Id. at 6.
As Officer Pague’s backup approached from a distance, he continued to
chase the other rider, later identified as Appellant. Id. Officer Pague
testified that he managed to come within “a couple feet” of the other rider
and observed that the rider was a white male. Id. Specifically, Officer
Pague testified that “[t]here were multiple times where I would be either
almost beside him or extremely close to him as he would look back to see if
it was safe to get in the left lane.” Id. Officer Pague testified that the
pursuit concluded shortly after he allowed the rider onto the left lane to
avoid what Officer Pague believed was going to be an impending accident.
Id. at 7. He testified:
At that time if I wouldn’t have slowed down I think the [rider]
would have, one, made a left and hit me or ran into Officer
Ryman. So I slowed down. The [rider] then made it into the left
lane and proceeded to run the stop sign at Sinking Springs and
made a left onto Susquehanna Trail where we had then come
into the Stillmeadow Church Parking lot. And that’s where he
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had crossed a bridge where I was unable to get my vehicle
across.
Id. at 7. Officer Pague further testified that the pursuit occurred at 8:15
p.m. when it was still light out and spanned a total distance of 4.7 miles.
Id. He testified that at times he was “within inches” of the rider. Id. at 8.
In particular, he described that the rider wore an open-faced helmet with a
camera mounted on top, wore a tank top exposing an arm tattoo, and a pair
of dark shorts. Id. Officer Pague emphasized that he “saw [the rider’s] face
multiple times,” because the rider kept looking back at Officer Pague. Id.
Officer Pague testified that his investigation of the incident led him to a
vacant residence on Woodmont Drive. Id. at 15. Based on information
posted on the door of the residence, Officer Pague eventually called
Appellant’s mother, L.H.S. Id. Officer Pague testified that L.H.S. told him
that she relocated to another residence down the street from Woodmont
Drive. While still on the phone with L.H.S., Officer Pague drove to the new
residence. Id. at 16. Officer Pague testified that, as he was approaching
the residence, he observed a white vehicle backing out of the driveway. Id.
Officer Pague confirmed that it was L.H.S. driving the white vehicle. Id. He
testified that L.H.S. had a passenger in the vehicle, whom she identified as
her son (Appellant). Id. When Officer Pague observed her son exit the
vehicle, Officer Pague realized he “had the same tattoo that was on the
driver of the motorcycle that evening.” Id.
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Upon seeing Appellant, Officer Pague testified that he “asked him right
away who “the other person that you were riding the motorcycle with” was.
Id. According to Officer Pague’s testimony, Appellant replied he “didn’t
know.” Id. at 16-17. On cross-examination, Officer Pague acknowledged
that he did not recall any specifics about the arm tattoo. Id. at 20.
At the hearing, Appellant challenged Officer Pague’s testimony about
how Officer Pague ascertained Appellant’s identity, arguing that the
Commonwealth failed to respond to Appellant’s discovery request about the
manner in which Officer Pague identified Appellant. The juvenile court
sustained the objection.
On August 21, 2014, the juvenile court adjudicated Appellant
delinquent of, inter alia, fleeing or attempting to elude a police officer and
driving without a license. Following the juvenile court’s denial of Appellant’s
post-dispositional motion, Appellant timely appealed to this Court. Appellant
filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal,
raising two assertions of error:
[1.] Whether Appellant’s adjudication for driving without a
license was against the sufficiency of the evidence as there was
no evidence presented at the denial hearing to support
adjudication for driving without a license?
[2.] Whether Appellant’s adjudication on the fleeing and eluding
charge was against the weight of the evidence as the officers
[sic] testimony and identification were not reliable?
Appellant’s Rule 1925(b) Statement. In response, the juvenile court issued
a Pa.R.A.P. 1925(a) opinion, incorporating the reasons set forth in its August
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6, 2014 order. With respect to the first assertion of error, the juvenile court
acknowledged that “there was no evidence presented at the fact finding
hearing to support adjudication for driving without a license.” Juvenile Court
Rule 1925(a) Opinion, 1/5/15, at 2. The court, however, noted that it “had
personal knowledge of [Appellant’s] date of birth and the impossibility of
[Appellant] having a valid driver’s license” at the time of the incident. Id. at
n.1. As for the second assertion of error, the juvenile court concluded it did
not abuse its discretion in rejecting Appellant’s weight of the evidence
argument.
On appeal, Appellant repeats the same two assertions of error. Our
standard of review of dispositional orders is well-settled: “The Juvenile Act
grants broad discretion to the court when determining an appropriate
disposition. We will not disturb a disposition absent a manifest abuse of
discretion.” In the Interest of R.D., 44 A.3d 657, 664 (Pa. Super. 2012),
appeal denied, 56 A.3d 398 (Pa. 2012) (quoting In the Interest of
R.D.R., 876 A.2d 1009, 1013 (Pa. Super. 2005)). An abuse of discretion
“requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support as to be clearly erroneous.”
Commonwealth v. Rodriguez, 81 A.3d 103, 106 (Pa. Super. 2013)
(quotation omitted).
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We now turn to Appellant’s first assertion of error. Appellant argues
that the evidence was insufficient to sustain his conviction for driving without
a license.2 We agree. Instantly, the Commonwealth admits that the
juvenile court erred in adjudicating Appellant delinquent for driving without a
license, because the adjudication was not supported by sufficient evidence.
Appellee’s Brief at 13. In fact, as noted earlier, the juvenile court also
acknowledged that the Commonwealth failed to present sufficient evidence
to sustain Appellant’s adjudication for driving without a license. Accordingly,
Appellant’s delinquency adjudication for driving without a license was in
error.3
____________________________________________
2
We are mindful that:
[i]n reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s
verdict beyond a reasonable doubt. The Commonwealth can
meet its burden by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances. As an appellate court, we must review
the entire record and all evidence actually received. The trier of
fact while passing upon the credibility of witnesses and the
weight of the evidence produced is free to believe all, part or
none of the evidence. Because evidentiary sufficiency is a
question of law, our standard of review is de novo and our scope
of review is plenary.
In re C.R., 113 A.3d 328, 333-34 (Pa. Super. 2015) (citation and quotation
marks omitted).
3
To the extent the juvenile court suggests it may take judicial notice of
Appellant’s date of birth because of its familiarity with Appellant, we
disagree. Here, the juvenile court for the first time took judicial notice of
Appellant’s date of birth at the post-dispositional motion hearing. See
(Footnote Continued Next Page)
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Appellant next argues that his delinquency adjudication was contrary
to the weight of the evidence because Officer Pague’s testimony was not
credible. In support of this argument, Appellant points out that Officer
Pague’s testimony was not credible because Officer Pague did not remember
any details about the tattoo on Appellant’s arm. Appellant’s Brief at 13.
“A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the ground that the
evidence was so one-sided or so weighted in favor of acquittal that a guilty
verdict shocks one’s sense of justice.” In re J.B., 106 A.3d 76, 95 (Pa.
2014). Thus, we may only reverse the juvenile court’s adjudication of
delinquency if it is so contrary to the evidence as to shock one’s sense of
justice. In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014), appeal denied,
102 A.3d 986 (Pa. 2014) (citation omitted). Moreover, where the court has
ruled on the weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against the weight of the
evidence. Id. Rather, appellate review is limited to whether the juvenile
court palpably abused its discretion in ruling on the weight claim. Id.
Hence, a juvenile court’s denial of a weight claim is the least assailable of its
rulings. Conflicts in the evidence and contradictions in the testimony of any
witnesses are for the fact finder to resolve. Id.
_______________________
(Footnote Continued)
In Interest of D.S., 622 A.2d 954, 958 (Pa. Super. 1993) (A party
opposing judicial notice must be provided an opportunity for rebuttal).
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Here, Appellant essentially invites us to re-evaluate the juvenile
court’s credibility determination. We, however, decline to do so. As noted
above, we do not disturb the juvenile court’s credibility determination by
which we are bound. See Commonwealth v. Rivera, 983 A.2d 1211,
1225 (2009) (“A new trial should not be granted because of a mere conflict
in the testimony or because the judge on the same facts would have arrived
at a different conclusion.”). Thus, based on our review of the entire record,
as recited above, we do not conclude the juvenile court abused its discretion
in denying Appellant a new trial.
Dispositional order affirmed in part and reversed in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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https://www.courtlistener.com/api/rest/v3/opinions/4010725/ | Velma Grossman Painter, claimant and respondent, filed a claim against the estate of her father, August Grossman, deceased, defendant and appellant, on the 3d day of April, 1946, for services rendered and expenses incurred in caring for her father and mother during their lifetime, upon which judgment was entered for the full amount of the claim on the 24th day of August, 1946, in the sum of $1,863.70. Defendant appeals from the judgment. The facts will be set forth in the opinion. *Page 458
The question presented is whether a daughter who was employed and maintained living quarters in the city of Milwaukee, Wisconsin, can recover for services rendered in caring for her mother and father who lived at Dale, Wisconsin, where there was no express contract to pay for such services.
The presumption is that the services so rendered were gratuitous.Taylor v. Thieman (1907), 132 Wis. 38,111 N.W. 229; Estate of Goltz (1931), 205 Wis. 590, 238 N.W. 374;Miller v. Estate of Bell (1937), 224 Wis. 593, 273 N.W. 67. It was therefore incumbent upon the claimant to prove an express contract by direct and positive evidence or to prove by unequivocal facts and circumstances that which is the equivalent of direct and positive proof of an express contract. Hallv. Finch (1871), 29 Wis. 278; Tyler v. Burrington (1876),39 Wis. 376; Pellage v. Pellage (1873), 32 Wis. 136; Leitgabelv. Belt (1900), 108 Wis. 107, 83 N.W. 1111; Estate ofGoltz, supra.
The trial court allowed the full amount of the claim, and appellant here claims there was no evidence submitted by claimant to rebut the presumption of gratuity for services rendered. This requires an examination of the evidence.
August Grossman died testate on the 13th day of December, 1945, at Dale, Wisconsin, where he had operated a lumberyard adjacent to his home. He was an aged man, residing alone after his wife's death on January 10, 1942. Two children survived him, Velma Grossman Painter, who resided in Milwaukee, Wisconsin, and Waiter Grossman, who entered the army during World War II and remained there until the close of the war and after his father's death. August Grossman left an estate appraised at $8,378.44, personal property owned jointly by the deceased and his daughter, Velma Grossman Painter, appraised at $4,625, and personal property *Page 459
owned jointly by the deceased and his son, Walter Grossman, appraised at $7,942.89. In 1942, he deeded the homestead to claimant, reserving the life use of the property in himself. This property was appraised at $2,750. He also left a will, wherein he gave claimant the sum of $500 and divided the balance of his estate equally between claimant and her brother.
Claimant was employed as a waitress in the coffee shop at the Schroeder Hotel in Milwaukee, Wisconsin, for fifteen years prior to the death of her father. The testimony is undisputed that from salary and tips she earned approximately $200 a month. During that time, and prior to her mother's illness, she made an average of a trip a month to Dale to visit her parents. Anna Grossman, her mother, became ill in 1941, and was taken to a hospital at Appleton, Wisconsin, on December 1, 1941, where she died January 10, 1942. Claimant went to Dale November 30, 1941, and remained there until February 1, 1942, when she returned to Milwaukee and resumed her work at the Schroeder Hotel.
Claimant makes claim for $4 per day for the time spent at the hospital caring for her mother and $2 per day for the time spent at home after the death of her mother until February 1, 1942. Thereafter she made trips to Dale about twice a month, spending two or three days on each trip, until July 1, 1942, when her father became ill. She cared for him in his home from July 1, 1942, to August 31, 1942, inclusive. Claim is made for twenty-seven days at $4 per day while he was confined to his bed and thirty-five days at $2 per day when he was not confined to his bed. Thereafter she continued to make trips to Dale on the average of about twice a month during the balance of 1942 and the years 1943, 1944, and 1945, spending two or three days at home on each trip. November 22, 1945, her father again became ill, so she remained at home from November 22d until December 13, 1945, on which date he died. Claim is made for services at $3 per day from November 22d *Page 460
until November 28, 1945, and $6 per day from November 29th to December 13, 1945.
During May, 1943, claimant was home thirteen days; during June, 1943, nineteen days; and during July, 1943, seventeen days. Claim is made at $3 per day for each of these days. Claim is made for $2 per day for the days she was at home during the semimonthly trips. Further claim is made for two hundred sixteen trips from Milwaukee to Dale and return at $3 per trip to cover travel expenses, or a total of $648. The distance between Milwaukee and Dale, depending upon the route of travel, is at least one hundred miles.
Claimant maintained an apartment in Milwaukee for about thirteen years prior to the death of her father, including the entire period for which this claim for services is made. The evidence is undisputed that she went home on November 30, 1941, at the request of her father, who informed her it would be necessary for her to come home and take care of her mother or he would have to obtain the services of a trained nurse. She cared for her mother at the hospital in Appleton every day from December 1, 1941, to January 10, 1942, being at the hospital from 7 o'clock in the morning until 5 o'clock in the afternoon, spending the nights in the home at Dale where she did such housework as she could. After the death of her mother she remained at home caring for the house until February 1, 1942, when she returned to Milwaukee. The next extended period at home was from July 1, 1942, when her father became ill with a heart ailment, until September 1, 1942, during which time she cared for him and did the necessary housework. The next extended period at home began on November 22, 1945, at which time her father again became seriously ill and she remained home caring for him and doing the housework until December 13, 1945, on which date he died.
After the death of the mother the father lived in the home alone. He had no one to care for him during his illness except this claimant, although there is testimony there was a *Page 461
nurse there at one time. The testimony shows that the father requested her to come home and perform the services rendered for her mother. There is no testimony that he requested her to come home and care for him during his illness, but claimant lived a hundred miles away and immediately returned home and cared for him each time he was taken sick, and claimant was the natural person to turn to for assistance as the son, who lived at Appleton, was in service. The doctor testified the services rendered were necessary. In rendering these services she sacrificed an average of $8 per day which the father knew she could have earned if she had remained in Milwaukee, and she testified she expected compensation for such services.
Thus we have a daughter, maintaining her own living quarters more than a hundred miles from the home of her parents, gainfully employed, who returned home and cared for her mother during last sickness at the request of her father, and who twice later returned home immediately when her father was ill and without anyone to care for him, receiving information in some manner that he was ill and needed care, together with the sacrifice of a substantial amount of income on her part, seeking reasonable compensation for such services. It is said in Tyler v. Burrington, supra, p. 379, quoting from Addison, Contracts, 209:
"The intention of the parties to any particular transaction may be gathered from their acts and deeds, in connection with surrounding circumstances, as well as from their words. . . ."
While proof offered by claimant to overcome the presumption that the services were gratuitous is not too strong, it is considered sufficient to overcome the presumption and sustain the trial court in granting judgment for the services rendered during the extended periods above set forth.
The balance of the claim is for services rendered on semimonthly trips home made at her convenience between February 1st and July 1, 1942, and September 1, 1942, and *Page 462
November 22, 1945, together with the expenses of these trips. While claimant is to be complimented on the interest shown in her father and her desire to be helpful to him, and without doubt the father was happy to see her and such services as she rendered were helpful to him, nevertheless these trips home were no different than the trips she made home prior to the time her mother was taken sick, even though they may have been a little more frequent and the services rendered were somewhat greater. There is nothing to indicate that the father requested her to come home at the times in question, and certainly no parent would expect to pay a child for services when she occasionally drops in to visit for a day or two at a time. It follows that the balance of the claim for services and expenses of travel must be disallowed.
We conclude that the claim as filed for services rendered from December 1, 1941, to February 1, 1942, and from July 1, 1942, to August 31, 1942, and from November 22, 1945, to December 13, 1945, for a total of one hundred forty-seven days, amounting to $497 be allowed, and that the balance of the claim, including travel expense, be disallowed.
By the Court. — The judgment is modified as stated in the opinion, and affirmed as so modified. *Page 463 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1857409/ | 265 B.R. 357 (2001)
SEARS, ROEBUCK & CO., Appellant,
v.
Joan SPIVEY, Appellee.
No. 99-CV-3797 (NGG).
United States District Court, E.D. New York.
August 8, 2001.
*358 *359 Philip D. Anker, Bruce M. Berman, Wilmer, Cutler & Pickering, Washington, DC, Ronald L. Rose, Dykema Gossett, Bloomfield Hills, MI, for appellant.
Robert J. Musso, Rosenberg, Musso, & Weiner, LLP, Brooklyn, NY, for appellee.
MEMORANDUM & ORDER
GARAUFIS, District Judge.
This bankruptcy appeal presents the question of whether a bankruptcy judge may nullify a consensual redemption agreement in the absence of a motion for its approval. Although I answer the question in the affirmative, I nevertheless conclude that the court below erred in its legal holding and therefore vacate the bankruptcy court's order of October 15, 1998 and remand the matter back to the bankruptcy court.
I
Joan Spivey, represented by counsel, petitioned for voluntary Chapter 7 bankruptcy pursuant to 11 U.S.C. § 101 et seq. ("Bankruptcy Code") on July 23, 1998. Her creditors included, inter alia, Sears, Roebuck & Company ("Sears"). She valued her household goods, which she did not itemize and for which she claimed a collective exemption, at $750.00, and she scheduled Sears as an unsecured creditor owed $439.00. The proceeding was brought in bankruptcy court before then-Bankruptcy Judge Laura Taylor Swain.[1]
On August 31, at the creditors' meeting, Sears and Spivey entered into a redemption agreement ("Agreement"), concerning a particular piece of merchandise, a television/VCR unit ("TV") purchased by Spivey with her Sears credit card. The Agreement asserted that the TV was property exempted under § 522 or abandoned under § 554 and that Spivey was exercising *360 her right under § 722 to redeem the TV for $153.89, a value agreed to by the parties as the fair market value for redemption purposes. The Agreement stated that Spivey would pay this amount in lump sum before September 30, 1998. Pursuant to the Agreement, Spivey made out two checks to Sears totaling $153.89. Sears deposited the check for $75.00 but not the other.
The appointed United States Trustee for Spivey's estate closed the meeting of creditors on August 31 and certified a no-distribution report on September 1. The report stated that the trustee had made a "diligent inquiry into the financial affairs" of the debtor and that there was "no property available for distribution from the estate over and above that exempted by law." Under the bankruptcy rules, the deadline to object to claimed exemptions expired thirty days later, on September 30. No one objected to the report, to any exemptions, or to the Agreement.
Sears filed the Agreement with the court. On October 15, 1998, after receiving the filed Agreement, Judge Swain sua sponte issued an order ("Bankruptcy Order"). Judge Swain ordered that, in the absence of a motion to approve the Agreement, the Agreement would be null and void and Sears should refund all monies paid by Spivey. No motion was made, and Sears remitted a check in the amount of $75.00 to Spivey.
On November 16, Sears moved for reconsideration of the Bankruptcy Order. Sears argued that redemption is a personal right of the debtor to arrange to retain personal property for household, family, or personal use without entering into less attractive reaffirmation agreements. Sears claimed that redemption is achieved, whether or not approved by the court, when a lump-sum payment is made pursuant to a consensual redemption agreement between the parties. Sears further submitted that if debtors were required to file a motion for court approval for every redemption agreement, redemption would become too expensive an option for many debtors. Judge Swain took Sears' motion under advisement. In the meantime, she granted Spivey a discharge under § 727.
On March 5, 1999, Judge Swain issued an Opinion and Order denying Sears' motion for reconsideration. See In re Spivey, 230 B.R. 484 (Bankr.E.D.N.Y.1999). She held that neither the Bankruptcy Code nor the Federal Rules of Bankruptcy Procedure authorizes the performance of redemption agreements absent judicial approval, and that policy reasons supported her conclusion. Accordingly, she declined to rescind or modify the Bankruptcy Order. See id. at 491. On March 15, Sears timely appealed her decision, pursuant to 28 U.S.C. § 158(a).[2]
II
"Bankruptcy law aims to serve both the debtor and the creditor." In re Morgan, 182 F.3d 775, 778 (11th Cir.1999) (per curiam). Upon filing a Chapter 7 bankruptcy petition, all non-exempted property of the debtor becomes property of the bankruptcy estate and managed by the trustee. See 11 U.S.C. § 541(a); Taylor v. Freeland & Kronz, 503 U.S. 638, 642, 112 S. Ct. 1644, 118 L. Ed. 2d 280 (1992). The bankruptcy estate is then liquidated and the proceeds partitioned to the various creditors in satisfaction of the debtor's obligations. In this way, Chapter 7 gives the debtor a fresh start by expunging her *361 debts, see In re Boodrow, 126 F.3d 43, 51 (2d Cir.1997), cert. denied, 522 U.S. 1117, 118 S. Ct. 1055, 140 L. Ed. 2d 118 (1998); see also Lines v. Frederick, 400 U.S. 18, 19, 91 S. Ct. 113, 27 L. Ed. 2d 124 (1970) (per curiam) (stating that bankruptcy is designed to "give the debtor a `new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of pre-existing debt'") (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244-45, 54 S. Ct. 695, 78 L. Ed. 1230 (1934)), while enabling creditors to maximize their return through the liquidation of her assets.
A debtor may exempt from the bankruptcy estate particular articles of property needed to facilitate her fresh start. See 11 U.S.C. § 522(b); Owen v. Owen, 500 U.S. 305, 308, 111 S. Ct. 1833, 114 L. Ed. 2d 350 (1991); In re Bell, 225 F.3d 203, 215-16 (2d Cir.2000); see also H.R.Rep. No. 95-595, at 126 (Sept. 8, 1977) ("The historical purpose of these exemption laws has been to protect a debtor from his creditors, to provide him with the basic necessities of life so that even if his creditors levy on all of his nonexempt property, the debtor will not be left destitute and a public charge."), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6087. Only specific property may be claimed as exempt; exemptable property includes, inter alia, the debtor's interest in certain personal, family, or household goods. See 11 U.S.C. § 522(d)(3).
Because the debtor retains ownership and possession of exempt property, a secured creditor's lien on the property remains unsatisfied. Although a bankruptcy discharge disposes of all personal liability of the debtor, see id. § 524(a)(2), a discharge does not dissolve a creditor's lien on exempt property, see Dewsnup v. Timm, 502 U.S. 410, 418, 112 S. Ct. 773, 116 L. Ed. 2d 903 (1992); Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S. Ct. 1825, 114 L. Ed. 2d 337 (1991). Instead, the lien survives the bankruptcy proceedings and remains a vehicle for actions against the debtor in rem. See Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991). Thus, although bankruptcy staves off actions against the debtor personally, it does not prevent in rem actions, such as repossession or foreclosure, to recover exempted secured collateral.
Of course, a debtor discharged from bankruptcy is unlikely to be able to meet her continuing obligations on liens securing exempt property, which she may then lose to foreclosure or repossession immediately after discharge. Such a loss would contravene the primary purpose of exemption in the first place. The Bankruptcy Code provides two methods by which a debtor may protect her exempt property against in rem actions: reaffirmation and redemption.[3]
A debtor may reaffirm her personal liability on a dischargeable debt in exchange for less burdensome repayment options.[4]*362 See 11 U.S.C. § 524(c). This option may be attractive to the debtor for several reasons. If she cannot afford redemption, as many bankruptcy debtors cannot, reaffirmation may be the only way for her to keep necessary property which would otherwise be extremely costly to replace. See Cox v. Zale Del., Inc., 239 F.3d 910, 912-13 (7th Cir.2001) (Posner, J.). If she is a skilled negotiator, she might obtain a renegotiated lien with more favorable terms. See Boodrow, 126 F.3d at 52. Finally, reaffirmation may help reestablish her good credit standing after the bankruptcy discharge. See id. at 52.
The secured creditor might also value reaffirmation. In the absence of redemption or reaffirmation, the debtor's personal debt is extinguished and the creditor is left with in rem proceedings as its only recourse. See id. at 52. Repossession and foreclosure can be costly endeavors for a creditor. See Cox, 239 F.3d at 912; In re Pendlebury, 94 B.R. 120, 125 (Bankr. E.D.Tenn.1988). Moreover, resale may be unattractive where the collateral's value depreciates quickly. See Pendlebury, 94 B.R. at 125. For these reasons, most creditors realize that reaffirmation is a more favorable option than foreclosure. See id. at 125.
Reaffirmed terms are a matter of negotiation and subject to the creditor's approval. See Boodrow, 126 F.3d at 49; In re Bushey, 204 B.R. 661, 662-63 (Bankr.N.D.N.Y.1997). Because bankruptcy negotiations ordinarily involve disparate bargaining power between the debtor and creditor, courts have suggested that reaffirmation gives the creditor an effective veto on the debtor's ability to keep much-needed property if the debtor does not accede to the creditor's reaffirmation demands. See Boodrow, 126 F.3d at 51; cf. H.R.Rep. No. 95-595, at 127 ("In consumer cases, very often a secured creditor with a security interest in all of the debtor's property, including household and personal goods, uses the threat of foreclosure to obtain a reaffirmation of a debt. Otherwise, the secured creditor is able to deprive a debtor of even the most insignificant household effects, . . . even though the items have little if any realizable market value. However, the goods do have a high replacement cost, and thus the creditor is able to use the threat of repossession, rarely carried out, to extract more than he would be able to if he did foreclose or repossess."), reprinted in 1978 U.S.C.C.A.N. at 6088. But see Pendlebury, 94 B.R. at 125 (suggesting that the debtor has considerable bargaining power in the reaffirmation process).
Perhaps realizing this danger to the debtor's fresh start, Congress imposed on reaffirmation agreements several preconditions to their enforceability. See Cox, 239 F.3d at 912. The reaffirmation agreement must advise the debtor that he is not obligated to reaffirm and that the agreement may be rescinded. See 11 U.S.C. § 524(c)(2). It must be filed with the court, see id. § 524(c)(3), which, if the debtor is pro se, must apprise her of reaffirmation implications and obligations, see id. § 524(d). Finally, any reaffirmation agreement must be approved either by the debtor's counsel, or, if the debtor is pro se, by the court. See id. §§ 524(c)(3), (c)(6).
Recognizing that reaffirmation obligations, even with the protections afforded by the Bankruptcy Code, may not sufficiently ensure the debtor's fresh start, see H.R.Rep. No. 95-595, at 163, reprinted in 1978 U.S.C.C.A.N. at 6124; S.Rep. No. 95-989, at 7 (July 14, 1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5793, Congress "substantial[ly] change[d]" the Bankruptcy Code in 1978 to create the new right of redemption, see S.Rep. No. 95-989, at 95, reprinted in 1978 U.S.C.C.A.N. at 5881.
*363 Redemption agreements are completely different from reaffirmation agreements. Unlike reaffirmation terms, the redemption price is not subject to negotiation. Rather, the Bankruptcy Code specifies that the debtor must pay the creditor the amount of the allowed secured claim. See 11 U.S.C. § 722. That amount is further defined as the lesser of the unpaid balance of the claim or the value of the collateral.[5]See id. § 506(a); In re Hart, 8 B.R. 1020, 1022 n. 2 (N.D.N.Y.1981). Although some debtors have attempted to redeem by installment, the majority of courts require redemption by lump-sum payment. See, e.g., In re Schweitzer, 19 B.R. 860 (Bankr.E.D.N.Y.1982); Hart, 8 B.R. at 1022; In re Bell, 700 F.2d 1053, 1055 (6th Cir.1983).
Whereas reaffirmation is subject to creditor approval, redemption is the debtor's right; she may compel the creditor to enter into a redemption agreement if the agreement complies with the applicable statutory provisions. The redemption requirements are much less rigorous than the reaffirmation requirements. Redemption applies only to property which is either abandoned or exempt, which is for personal, family, or household use, and which is subject to a dischargeable consumer debt. See 11 U.S.C. § 722. Outside these prerequisites, the statute on its face requires little more than the debtor's check for the appropriate amount. If she can afford it, redemption is probably the debtor's most attractive option for retaining personal property because she keeps possession of the property free and clear of any debt. See Pendlebury, 94 B.R. at 122.
III
Court approval of redemption agreements is not mentioned in the Bankruptcy Code. Nevertheless, Judge Swain held the redemption agreement between Sears and Spivey null and void absent court approval. See Spivey, 230 B.R. at 491. In reaching her conclusion, Judge Swain looked to the statutory preconditions to proper redemption: the property must be either exempt or abandoned, it must be for personal, family, or household use, and it must be subject to a dischargeable consumer debt. Reasoning that judicial oversight was necessary to ensure compliance with these preconditions, Judge Swain concluded that § 722 contemplates judicial review of redemption agreements. See id. at 489. Otherwise, she reasoned, "unscrupulous or uninformed parties [could] enter[] into agreements purporting to redeem property that is not eligible for such treatment under section 722." Id. Judge Swain also noted that the redemption payment amount was not subject to negotiation but rather defined by § 506(a). Because valuations developed by the parties might not equate with the statutorily-defined amount, she concluded that judicial review of the amount was necessary. See id.
Comparing redemption to reaffirmation, Judge Swain then concluded that creditor abuses in the redemption context could be as pervasive as in the reaffirmation context. Under both, the creditor has the powerful leverage of repossessing property that the debtor is likely to value highly, even though the actual resale value of the *364 collateral is low. Thus, Judge Swain continued, "[a]n unscrupulous creditor could, by asserting that it has a valid security interest and threatening a debtor with repossession, obtain a redemption payment to which it is not entitled. Or, a creditor with a valid security interest could propose to an uninformed debtor a redemption price much higher than the actual value of the collateral." Id. at 490. Accordingly, she held that "Rule 6008 of the Federal Rules of Bankruptcy Procedure requires that the debtor file a motion in order to effectuate a redemption." Id. at 491 (emphasis added). At least three other courts have held similarly. See In re Ephraim, 249 B.R. 862 (Bankr.E.D.Mich.2000); In re White, 231 B.R. 551 (Bankr.D.Vt.1999); In re Lopez, 224 B.R. 439 (Bankr.C.D.Cal. 1998).
Sears argues that Judge Swain's decision misconstrued § 722 and Rule 6008. In Sears' view, neither of these provisions requires judicial approval of redemption agreements. In fact, Sears argues, a bankruptcy court can only exercise jurisdiction over a consensual redemption agreement when the parties dispute the valuation of the collateral.
Surprisingly, Spivey does not directly oppose Sears' arguments. Instead, Spivey argues that Sears has mispresented the question for review. The only appropriate question, Spivey claims, is whether Judge Swain erred in negating the redemption agreement in this case. In other words, Spivey contends, even if neither the Bankruptcy Code nor Rules requires judicial approval of consensual redemption agreements, they do not forbid bankruptcy courts from rejecting consensual agreements, either. In the absence of a statutory mandate, Spivey submits, § 105 and Rule 9029 give bankruptcy courts discretionary power to manage their proceedings, and therefore if this court were to find that the bankruptcy court was within its discretion in issuing the decision below, the decision must be affirmed.
In reply, Sears argues that when the statutory import is clear, bankruptcy courts have no power to circumvent it. In the case of redemption agreements, Sears takes the position that the Code and Rules affirmatively prohibit bankruptcy courts from requiring judicial approval.
IV
Federal district courts have appellate jurisdiction over bankruptcy appeals. See 28 U.S.C. § 158(a); In re AroChem Corp., 176 F.3d 610, 618 (2d Cir.1999). The district court has the power to "affirm, modify, or reverse" all or part of a bankruptcy court's order, "or remand with instructions." Fed. R. Bankr.P. 8013. Conclusions of law are reviewed de novo but factual resolutions are entitled to deference. See id. ("Findings of fact . . . shall not be set aside unless clearly erroneous. . . ."); AroChem, 176 F.3d at 620.
Bankruptcy courts have discretion in a number of matters. See, e.g., In re Sonnax Indus., Inc., 907 F.2d 1280, 1286 (2d Cir.1990) (discretion to lift the automatic stay); In re Blaise, 219 B.R. 946, 949-50 (2d Cir. BAP 1998) (discretion to convert a Chapter 13 case into a Chapter 7 case). Matters of discretion are reviewed for abuse of discretion. See Boodrow, 126 F.3d at 47; Blaise, 219 B.R. at 950. A bankruptcy court abuses its discretion when it bases its decision on an erroneous view of the law or clearly erroneous factual findings. See Blaise, 219 B.R. at 950 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)). A bankruptcy court also abuses its discretion if it commits a clear error of judgment. See id.
*365 V
Section 722 of the Bankruptcy Code states: "An individual debtor may . . . redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempted under section 522 of this title or has been abandoned under section 554 of this title, by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien." 11 U.S.C. § 722. Rule 6008 of the Federal Rules of Bankruptcy Procedure provides: "On motion by the debtor, trustee, or debtor in possession and after hearing on notice as the court may direct, the court may authorize the redemption of property from a lien or from a sale to enforce a lien in accordance with applicable law." Fed. R. Bankr.P. 6008.
A
The task of resolving a dispute over the meaning of Bankruptcy Code and Rule provisions must begin with the language of the provisions. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989). A literal reading of the textual provisions at issue does not mandate court approval. Section 722 curtly describes how a debtor must redeem appropriate property; nowhere does it mention court scrutiny. Rule 6008 does mention "authoriz[ation]" by the court. However, by its terms Rule 6008 only gives instruction after a particular party has made a motion. Rule 6008 is inapplicable in the absence of such a motion. There is nothing in either provision that expressly requires a motion for approval of a consensual redemption agreement, nor is there any indication that court approval is necessary in the absence of such a motion. The most natural reading of these two provisions, taken together, is that a debtor and creditor may cement a consensual redemption pursuant to the requirements in § 722 without having to resort to court action. If the debtor wishes to try to force the creditor into a redemption arrangement, she may make a motion pursuant to Rule 6008, at which point the court may compel redemption.
I recognize that § 722 and Rule 6008 admit a second plausible reading of the texts: § 722 sets forth the requirements for and Rule 6008 sets forth mandatory procedural preconditions to a completed, enforceable redemption agreement. Although it does not say so explicitly, Rule 6008 could be read as requiring both a motion and judicial authorization before any redemption agreement can take effect.[6] However, analyzing § 722 and Rule 6008 in the context of other bankruptcy provisions convinces me that the former reading is the correct one. Cf. Kelly v. Robinson, 479 U.S. 36, 43, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986) ("[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.") *366 (internal quotations and citations omitted); Midlantic Nat'l Bank v. N.J. Dep't of Envtl. Prot., 474 U.S. 494, 506-07, 106 S. Ct. 755, 88 L. Ed. 2d 859 (1986) (considering statutory context); Boodrow, 126 F.3d at 49.
1
A comparison to the reaffirmation agreement provisions bolsters the reading that neither § 722 nor Rule 6008 requires court approval absent a motion. Congress protected pro se debtors from being steamrolled into unfavorable reaffirmation agreements by explicitly conditioning them on court approval. See 11 U.S.C. § 524(c)(6); see also S. Rep. 95-989, at 81, reprinted in 1978 U.S.C.C.A.N. at 5867. Yet Congress was content to withhold that requirement when the debtor's own counsel approved of the agreement.[7]See 11 U.S.C. § 524(c)(3).
This facet of reaffirmation agreements is illuminating in two respects. First, it indicates that Congress could certainly impose the requirement of court approval where it saw fit to do so. That Congress failed to include a similar express provision mandating court approval in the redemption context implies that court approval of redemption agreements is not, in fact, a necessity there.
Second, it would be odd indeed for Congress to require judicial approval of a redemption agreement for a debtor, such as Spivey, represented by counsel, when Congress eliminated that requirement in the reaffirmation context, an option viewed as much more likely to disadvantage the debtor. As explained above, reaffirmation agreements consign the debtor to personal liability on the debt. And because they are subject to creditor consent, reaffirmation agreements are seen as the creditor's playthings. Despite these concerns, Congress did not impose mandatory court approval of reaffirmation agreements when the debtor was represented by counsel, presumably because an attorney would be an adequate safeguard. Unlike reaffirmation agreements, redemption agreements release the debtor from personal liability and are usually on terms more favorable to the debtor. For these reasons, redemption agreements are generally viewed as less hazardous for debtors. Inferring a congressional mandate of court approval for redemption agreements under these circumstances would be incongruous with the nature and scope of redemption and reaffirmation.
In fact, the legislative history supports the inference that Congress did not mean to impose the requirement of judicial approval on redemption agreements. Both Houses were expressly concerned with court approval of reaffirmation agreements. See S.Rep. No. 95-989, at 81 (stating definitively that a reaffirmation "must be entered into in good faith and must be approved by the court"), reprinted in 1978 U.S.C.C.A.N. at 5867; H.R.Rep. No. 95-595, at 366 (same), reprinted in 1978 U.S.C.C.A.N. at 6322. The legislative record evinces no similar concern in the redemption context. Compare S.Rep. No. 95-989, at 95 (expressing concern that the creditor's rights might be prejudiced by depreciation and nowhere indicating a need for court approval), reprinted in 1978 U.S.C.C.A.N. at 5881; H.R.Rep. No. 95-595, *367 at 127-28, 380-81 (lacking any mention of court approval), reprinted in 1978 U.S.C.C.A.N. at 6088-89, 6336-37. These reasons support the interpretation that neither § 722 nor Rule 6008 requires judicial approval of consensual redemption agreements.
2
A different contextual analysis seems, at first glance, to support the reading that § 722 contemplates judicial scrutiny of redemption agreements. Section 722 restricts redemption in three ways: (1) the property must be tangible, personal property, secured by a consumer debt and intended primarily for personal, family, or household use; (2) the property must be either exempted or abandoned; and (3) the redemption price must be equal to the amount of the allowed secured claim. See 11 U.S.C. § 722. The mere existence of these specific statutory conditions of redemption suggests the need for a judicial chaperon to ensure compliance. Upon close scrutiny, however, I do not find court intervention so necessary that § 722 in essence implicitly requires it.
The Bankruptcy Code and Rules themselves rely heavily on the adversarial nature of the proceedings to bring incidences of noncompliance to the court's attention. And, in the absence of a dispute, the parties' consensual view generally prevails. For example, a creditor's claim which has been properly and timely filed is deemed allowed absent objection. See 11 U.S.C. § 502(a); In re Harrison, 987 F.2d 677, 680 (10th Cir.1993). Similarly, property listed by the debtor as exempt is deemed exempt, even if improperly listed, unless a party or the trustee objects. See 11 U.S.C. § 522(1); Taylor, 503 U.S. at 643, 112 S. Ct. 1644. Property is deemed abandoned if the trustee fails to administer it, unless the court orders otherwise. See 11 U.S.C. § 554(c). In these specific examples, Congress has seen fit to permit allowance, exemption, and abandonment to take effect by consent of the parties and without judicial oversight. They evince Congress' overarching desire to curtail extraneous judicial supervision absent adversarial disputes.[8]See H.R.Rep. No. 95-595, at 4 ("The bill removes many of the supervisory functions from the judge in the first instance, transfers most of them to the trustee and to the United States trustee, and involves the judge only when a dispute arises. Because the judge no longer will have to take an active rule in managing bankruptcy cases, the bankruptcy court should become a forum that is fair in fact and in appearance as well."), reprinted in 1978 U.S.C.C.A.N. at 5966; *368 H.R.Rep. No. 95-595, at 107-08 ("The judges will become passive arbiters of disputes that arise in bankruptcy cases. . . . If an objection to the proposed action [of the trustee] is not made, then the trustee may proceed with the same authority as if he had obtained a court order authorizing the action. If an objection is made, the court will hear the dispute. . . ."), reprinted in 1978 U.S.C.C.A.N. at 6069.
Moreover, the bankruptcy provisions impose duties on the debtor and trustee to bring discrepancies to the attention of the court and interested parties. The trustee has affirmative, mandatory, duties to "ensure that the debtor . . . perform his intention [to redeem property]," 11 U.S.C. § 704(3), to "investigate the financial affairs of the debtor," id. § 704(4), and to "examine proofs of claims and object to the allowance of any claim that is improper," id. § 704(5). In addition, the trustee has duties of keeping records, making reports, and giving notice of the case to creditors. See id. § 704(7)-(9); Fed. R. Bankr.P.2015(a). These duties put him in a fiduciary relationship with the debtor and the creditors. See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 353, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985); In re Dinova, 212 B.R. 437 (2d Cir. BAP 1997); see also H.R.Rep. No. 95-595, at 88 ("The proposed United States trustees will be the repository of many of the administrative functions now performed by bankruptcy judges, and will serve as bankruptcy watch-dogs to prevent fraud, dishonesty, and overreaching in the bankruptcy arena."), reprinted in 1978 U.S.C.C.A.N. at 6049; H.R.Rep. No. 95-595, at 107 ("The bill gives him adequate powers to accomplish what must be done, and relieves him of the necessity for applying to the court and receiving court approval for every action he proposes to take."), reprinted in 1978 U.S.C.C.A.N. at 6069. The debtor has the affirmative duty to engage in good-faith "cooperat[ion] with the trustee." Fed. R. Bankr.P. 4002(4); accord In re Hines, 69 F.2d 52, 53 (2d Cir.1934) (directing a debtor to assist the trustee in the administration). There are, therefore, at least five individuals the debtor, the debtor's attorney, the creditor, the creditor's attorney, and the trustee scouring any given agreement and the status of the subject property who can bring anomalies or disputes to the court's attention.
I recognize the possibility that parties may attempt to redeem property which was never exempted or abandoned in the first place. Or, perhaps, the property or redemption price does not comply with the other redemption conditions. I also share Judge Swain's concern that such noncompliance may elude judicial scrutiny by one party's misrepresentations or by the parties' consensual subversion of the conditions. Nevertheless, the Bankruptcy Code and Rules are not toothless. Debtors and their attorneys face severe penalties under various provisions for engaging in improper conduct in bankruptcy proceedings. See, e.g., 18 U.S.C. § 152 (imposing criminal penalties for fraud in bankruptcy cases); 11 U.S.C. § 727(a)(4)(B) (authorizing denial of discharge for presenting fraudulent claims); Fed. R. Bankr.P. 1008 (requiring filings to "be verified or contain an unsworn declaration" of truthfulness under penalty of perjury); id. 1017(e) (permitting a bankruptcy court to dismiss a Chapter 7 case for the debtor's substantial abuse of the proceedings); id. 9011(c) (authorizing a broad range of appropriate sanctions for misrepresentations); id. 9020(a)-(b) (codifying the inherent contempt power of bankruptcy courts). In addition, bankruptcy courts have the power to sua sponte craft measures to ensure *369 compliance with the rules and procedures.[9]See Bushey, 204 B.R. at 664 (noting the power under § 105 but declining to exercise it); Cox, 239 F.3d at 916-17 (asserting that civil contempt, and perhaps even criminal contempt, is conferred by Rule 9020(b) and § 105); Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 445, 447 (1st Cir.2000) (holding § 105(a) broad enough to permit courts to fashion a broad array of remedies, including monetary relief, actual damages, disgorgement, attorney's fees, punitive damages, and contempt sanctions, for violations of non-complying reaffirmation agreements), cert. denied, ___ U.S. ___, 121 S. Ct. 2016, 149 L. Ed. 2d 1018 (2001). Finally, as amicus The Retail Council points out, the Bankruptcy Code authorizes compensatory and punitive damages to be assessed against creditors who engage in threatening or abusive tactics against the debtor or his property. See 11 U.S.C. § 362(h).
In short, the adversarial system provides strong justification for judicial passivity, and the bankruptcy provisions give courts vast power to remedy consensual or bad faith violations. Suffice it to say that I find that these forces substantially weaken the conclusion that the text of § 722 compels judicial scrutiny of redemption agreements. When measured against the reaffirmation comparison and the more natural reading of the language of § 722 and Rule 6008, the conclusion that they require judicial approval of redemption agreements cannot stand.
B
Policy ramifications stand opposed to this textually-based interpretation. Courts and commentators have suggested that judicial oversight is important to prevent creditors from terrorizing a debtor into disadvantageous redemption agreements with empty threats of repossession. See, e.g., White, 231 B.R. at 555-56 & n. 12; Spivey, 230 B.R. at 490; David A. Scholl, Article, "All the Small Things": How the Bankruptcy Courts are and should be Handling the Many Little Reaffirmation and Like Matters Before Them, 10 Temp. Pol. & Civ. Rts. L.Rev. 83, 100-01 (2000). I am sympathetic to this view. No doubt unscrupulous creditors have attempted to take advantage of unsuspecting and ignorant debtors. Although I question, in light of the considerations mentioned above, how prevalent such venality is in practice, see Scholl, supra, at 99 ("The survey results show that a significant number of judges never have had any such [redemption] matters come before them. I also note the added comments of many other judges commenting upon the rarity of such matters."), it certainly seems, in theory at least, a real possibility. Nevertheless, it is not for the courts, in the name of debtor protection, to wrest from legislative pronouncements mandates which do not appear there.[10]Cf. Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 13-14, 120 S. Ct. 1942, 147 L. Ed. 2d 1 (2000) ("Achieving a better policy outcome if what petitioner urges is that is a task for Congress, not the courts."); Bell, 225 F.3d at 220-22 (rejecting similar policy arguments as unpersuasive in light of the textual meaning of the bankruptcy provisions at issue). Accordingly, I hold that, absent a motion pursuant *370 to Rule 6008,[11] consensual redemption agreements do not require court approval.
VI
That I disagree with Judge Swain on this point of statutory construction does not, however, end the inquiry. Just because a statute does not require judicial action does not also render it prohibited. Spivey urges that nothing in the statutes prevented Judge Swain from voiding the redemption agreement, and that in the absence of statutory authority, Judge Swain was well within her discretion to act as she did. Sears, of course, argues that once Spivey made payment, redemption occurred, and the court was powerless to intervene.
Spivey holds the stronger argument here. By my reading of § 722 and Rule 6008, nothing prohibits a bankruptcy court from conditioning consensual redemption agreements on court approval. Section 722 states that "[a]n individual debtor may . . . redeem tangible personal property . . . by paying the [creditor] the amount of the allowed secured claim." 11 U.S.C. § 722. Admittedly, the language does initially suggest, as Sears advocates, that redemption is completed upon payment. Cf. H.R.Rep. No. 95-595, at 381 ("The redemption is accomplished by paying the holder of the lien. . . ."), reprinted in 1978 U.S.C.C.A.N. at 6337. But nothing in the text purports to affirmatively tie a court's hands with respect to redemptions. Section 722 does not unequivocally strip the court of authority by stating: "The court may intervene only if the parties object," or "Unless a motion to approve is made, property complying with this section becomes redeemed," or something to that effect, like other sections of the Bankruptcy Code which explicitly limit the court's power.[12]Cf. Fed. R. Bankr.P. 9006(b)(3) ("The court may enlarge the time for taking action under [certain Rules] only to the extent and under the conditions stated in those rules.") (emphasis added); 11 U.S.C. § 522(1) ("Unless a party in interest objects, the property claimed as exempt . . . is exempt.") (emphases added). There is no reason to suppose that § 722 mandates anything other than the normal prescription for redemption agreements, judicial approval or rejection notwithstanding.
Sears' argument is really only tenable if, as a general matter, bankruptcy courts may act only when the Bankruptcy Code or Rules authorize them to do so. The Second Circuit, however, has taken the opposite view, construing the express provisions of the Bankruptcy Code not as authority to act but as limits on otherwise broad discretion. See Boodrow, 126 F.3d at 53 (holding that the Code does not prohibit a bankruptcy court from permitting a debtor to retain collateral if the secured obligations are current); see also FDIC v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992) ("Because we discern neither in the Bankruptcy Code nor in the principles of equity which are the foundation of the Code any prohibition against *371 such [action by the bankruptcy court], we affirm. . . ."). Thus, if the provisions do not prohibit a bankruptcy court's action, the court has discretion to act.
The Second Circuit's position is supported by the unenumerated inherent equitable powers of bankruptcy courts; by § 105, which bestows on bankruptcy courts certain discretionary powers; and by Rule 9029, which gives bankruptcy courts the power to set and enforce local rules. A brief discussion of each is instructive.
"[C]ourts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity." Hunt, 292 U.S. at 240, 54 S. Ct. 695; accord In re Momentum Mfg. Corp., 25 F.3d 1132, 1136 (2d Cir.1994) ("It is well settled that bankruptcy courts are courts of equity, empowered to invoke equitable principles to achieve fairness and justice in the reorganization process."); In re Pottasch Bros., Co., 79 F.2d 613, 616 (2d Cir.1935) (Learned Hand, J.) (proclaiming that a bankruptcy court has "the ancient and elementary power" of amending prior orders); H.R.Rep. No. 95-595, at 13 ("The bill contemplates that the new bankruptcy courts will have contempt power commensurate with their responsibilities, and equal to the contempt power of other Federal courts. . . ."), reprinted in 1978 U.S.C.C.A.N. at 5974. This does not mean that bankruptcy courts may depart from established rules at whim. They may act only when not in contravention of the Bankruptcy Code and Rules. See Raleigh v. Ill. Dep't of Revenue, 530 U.S. 15, 24-25, 120 S. Ct. 1951, 147 L. Ed. 2d 13 (2000). Within the prescribed parameters, however, courts have wielded their inherent power with considerable force. See, e.g., In re Simon, 297 F. 942 (2d Cir.1924) (denying a discharge for the debtor's intentional failure to comply with Rule 4002 duties); In re Ishahak, 130 B.R. 16, 20 (Bankr. E.D.N.Y.1991) (same); In re Howard, 55 B.R. 580, 583 (Bankr.E.D.N.C.1985) (same); In re Country Woods Estates, Inc., 3 B.R. 721, 722 (E.D.N.Y.1980) (holding that a bankruptcy court has the discretion to allow a defective verification to be cured by amendment); cf. Link v. Wabash R. Co., 370 U.S. 626, 630-33, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (holding that district courts have the inherent discretionary power to sua sponte dismiss cases for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil Procedure contemplates a motion).
Section 105 of the Bankruptcy Code[13] bestows on bankruptcy courts a specific equitable power to act in accordance with principles of justice and fairness. Bankruptcy courts have broad latitude in exercising this power. See Momentum Mfg., 25 F.3d at 1136 ("Section 105(a) should be construed liberally to enjoin [actions] that might impede the reorganization process.") (internal quotation marks omitted); Bushey, 204 B.R. at 664 (noting broad power under § 105 but declining to exercise it); e.g., In re 183 Lorraine St. Assocs., 198 B.R. 16, 33 (E.D.N.Y.1996) (approving a sua sponte dismissal as a sanction under § 105); Cox, 239 F.3d at 916-17 (asserting that civil contempt, and perhaps even criminal contempt, is conferred by Rule *372 9020(b) and § 105); Bessette, 230 F.3d at 446 (holding § 105 empowers bankruptcy courts to entertain class actions); Morgan, 182 F.3d at 779 (holding that § 105(a) enables bankruptcy courts to toll the three-year priority period); In re Gurney, 192 B.R. 529, 537 (9th Cir. BAP 1996) (same); In re Richards, 994 F.2d 763, 765 (10th Cir.1993) (holding § 105(a) broad enough to suspend the 240-day assessment period); Pendlebury, 94 B.R. at 124 ("The court would not hesitate in appropriate circumstances to utilize its equitable powers and interject itself into the reaffirmation process."). As with their inherent powers, courts may exercise § 105 powers only "within the confines of the Bankruptcy Code." Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S. Ct. 963, 99 L. Ed. 2d 169 (1988); accord In re Ionosphere Clubs, Inc., 922 F.2d 984, 995 (2d Cir.1990) ("The bankruptcy court's equitable powers cannot be exercised in derogation of other sections of the Bankruptcy Code."), cert. denied, 502 U.S. 808, 112 S. Ct. 50, 116 L. Ed. 2d 28 (1991); Pertuso v. Ford Motor Credit Co., 233 F.3d 417, 423 n. 1 (6th Cir.2000) ("Section 105 undoubtedly vests bankruptcy courts with statutory contempt powers, but it `does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law.'") (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir. 1986)). Courts have interpreted § 105(a) to authorize sua sponte actions pursuant to a provision when the literal terms of the provision only explicitly contemplate judicial action after a motion. See, e.g., In re Duratech Indus., Inc., 241 B.R. 283, 287 (E.D.N.Y.1999) (approving sua sponte action under § 305(a) and § 105(a)).
Rule 9029 provides: "A judge may regulate practice in any manner consistent with federal law, these rules, Official Forms, and local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, Official Forms, or the local rules of the district unless the alleged violator has been furnished in the particular case with actual notice of the requirement." Fed. R. Bankr.P. 9029(b). Under this "direct analog" of Rule 83 of the Federal Rules of Civil Procedure, see Sears' Reply Br. at 12 n. 8; accord Fed. R. Bankr.P. 9029 Advisory Comm. Note; see also In re Spielfogel, 237 B.R. 555, 561 (E.D.N.Y.1999) (Spatt, J.) (applying Rule 83 standards to bankruptcy court local rules), bankruptcy courts have the power to enact local rules governing their practice, procedure, and conduct, see Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir.1991). The local rules have the force of law to the extent that they do not conflict with higher authority. See id. Because they are designed to ensure the efficient and expedient execution of justice, they invariably affect litigants' claims and rights. See id. at 1048; see also In re Ludwick, 185 B.R. 238, 245-47 (Bankr.W.D.Mich.1995) (exercising power under the local bankruptcy rules to suspend an attorney from practice for the attorney's constant dishonesty). For example, the Bankruptcy Court for the District of Vermont, in response to an increasing number of redemption agreements, has issued a standing local rule that requires redemption agreements to be filed with the court. See White, 231 B.R. at 552 n. 5 (citing Gen. Order No. 98-01).
These three digressions explain how a bankruptcy court may act even when not expressly authorized to do so. As long as the act is not in derogation of the clear directives of the Bankruptcy *373 Code or Rules, judges have discretion to set parameters and issue orders for the efficient dispensation of justice and equity. Under this aegis, and because neither § 722 nor Rule 6008 requires anything to the contrary. I conclude that a bankruptcy court has the power, in appropriate circumstances, to require judicial approval of a redemption agreement.
VII
Having concluded that bankruptcy courts are neither required to approve, nor prohibited per se from disapproving, consensual redemption agreements like the one entered into by Sears and Spivey, I must decide whether the court below was within the proper bounds of discretion. Judge Swain clearly held that "Rule 6008 of the Federal Rules of Bankruptcy Procedure requires that the debtor file a motion in order to effectuate a redemption." Spivey, 230 B.R. at 491 (emphasis added). Because no motion was filed, Judge Swain declined to rescind or modify the Bankruptcy Order nullifying the redemption agreement. See id. As I have stated, this view of the law is erroneous. Had Judge Swain ruled that judicial approval was warranted because Spivey's listing of Sears as an unsecured creditor called into question the propriety of the redemption agreement,[14] I might have held that the Bankruptcy Order was an appropriate exercise of judicial discretion. However, it is clear that Judge Swain relied on the mistaken view that the law required her to reject the agreement in the absence of a motion by the debtor. On this ground, the decision below cannot stand.
For the foregoing reasons, the order of October 15, 1998 is hereby VACATED and the matter is REMANDED to the bankruptcy court for further proceedings not inconsistent with this opinion.
SO ORDERED.
NOTES
[1] Judge Swain now sits as a district judge in the Southern District of New York.
[2] I granted The Retail Council of New York State leave to file an amicus brief in support of Sears' position.
[3] Besides redemption or reaffirmation, a debtor also has the options of challenging the creditor's secured standing or simply surrender the collateral. See In re Bushey, 204 B.R. 661, 663 (Bankr.N.D.N.Y.1997). In addition, in this circuit, a debtor who has not defaulted on her security obligations may retain the property and remain current on her payments. See Boodrow, 126 F.3d 43.
[4] In this respect, reaffirmation agreements are somewhat inconsistent with the purposes of Chapter 7. See In re Pendlebury, 94 B.R. 120, 125-26 (Bankr.E.D.Tenn.1988); see also H.R.Rep. No. 95-595, at 133-34 ("[A]n exception to discharge is contrary to the two most important principles of the bankruptcy laws: a fresh start for the debtor, and equality of treatment for all debts and creditors."), reprinted in 1978 U.S.C.C.A.N. at 6094-95.
[5] The "value of the collateral" option is subject to some debate. Some creditors argue that the value is represented by the replacement valuation developed by Associates Commercial Corp. v. Rash, 520 U.S. 953, 117 S. Ct. 1879, 138 L. Ed. 2d 148 (1997). However, most courts hold that the redemption price is the liquidation value: what the creditor would recover if it repossessed and resold the collateral. See, e.g., In re Weathington, 254 B.R. 895, 899 (6th Cir.BAP2000); In re Tripplett, 256 B.R. 594 (Bankr.N.D.Ill.2000).
[6] Rule 9019(a), worded similarly to Rule 6008, provides: "On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement." Fed. R. Bankr.P. 9019(a). Courts are split on whether the language of Rule 9019 by itself can require both a motion and judicial approval as preconditions to settlement. Compare In re Signet Indus., Inc., 165 F.3d 28 (table), 1998 WL 639168, at *3 (6th Cir. Sept. 10, 1998) (holding, in an unpublished opinion, that the language of Rule 9019 requires a motion and judicial approval), and In re Masters, Inc., 149 B.R. 289, 292 (E.D.N.Y. 1992) (holding Rule 9019 requires a motion and judicial approval), with Northview Motors, Inc. v. Chrysler Motors Corp., 186 F.3d 346, 351 n. 4 (3d Cir.1999) (holding that Rule 9019 cannot mandate court approval where the Bankruptcy Code does not also mandate it, but finding the requirement in § 363).
[7] Congress imposed the requirement of court approval only when the secured collateral is not real property. See 11 U.S.C. § 524(d)(2). At least one court confronted with a consensual reaffirmation agreement for real property has abstained from intervening, even when the debtor is pro se. See In re Phelan, 257 B.R. 776, 777-78 (Bankr.E.D.Va.2000). The court did, however, recognize its discretionary power to mandate court supervision. See id. at 778.
[8] In the related context of the statutory definition of the phrase "after notice and a hearing," see 11 U.S.C. § 102(1), Congress has stated: "The phrase means after such notice as is appropriate in the particular circumstances (to be prescribed by either the Rules of Bankruptcy Procedure or by the court in individual circumstances that the Rules do not cover . . .), and such opportunity for a hearing as is appropriate in the particular circumstances. Thus, a hearing will not be necessary in every instance. If there is no objection to the proposed action, the action may go ahead without court action. This is a significant change from present law, which requires the affirmative approval of the bankruptcy judge for almost every action. The change will permit the bankruptcy judge to stay removed from the administration of the bankruptcy or reorganization case, and to become involved only when there is a dispute about a proposed action, that is, only when there is an objection," S.Rep. No. 95-989, at 27-28, reprinted in 1978 U.S.C.C.A.N. at 5813; H.R.Rep. No. 95-595, at 315, reprinted in 1978 U.S.C.C.A.N. at 6272; see also H.R.Rep. No. 95-595, at 108 ("This concept, embodied in the phrase `after notice and a hearing', will free the judge from ruling on the many undisputed administrative decisions that must be made in a case, and will involve the judge only when there is an actual dispute to be resolved."), reprinted in 1978 U.S.C.C.A.N. at 6069.
[9] A bankruptcy court's discretionary powers are discussed in more detail infra in Part VI.
[10] In light of my conclusion, discussed infra in the following section, that bankruptcy courts can address this policy consideration via their own discretionary powers, the support for the argument that the textual provisions specifically mandate judicial scrutiny is even weaker.
[11] I make no comment on the role or powers of the court once a motion pursuant to Rule 6008 has been made.
[12] Nor is there any basis for inferring a limitation on the court's power from the permissive language of Rule 6008. The Rule could have explicitly restricted the court's ability to oversee redemption agreements by leading with the phrase "Only on motion," a phrase used to limit judicial power in other Rules. See, e.g., Fed. R. Bankr.P. 1007(a)(4) ("Any extension of time for the filing of the lists required by this subdivision may be granted only on motion for cause shown. . . ."); id. 1007(c) ("Any extension of time for the filing of the schedules and statements may be granted only on motion for cause shown. . . ."). Rule 6008 is not so restricted.
[13] Section 105 permits a bankruptcy court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process." 11 U.S.C. § 105(a).
[14] Sears claims that Spivey's debt of $439.00 was the purchase price of the TV and that it was subject to a purchase money security interest by virtue of the credit card transaction. In effect, Sears claims, Spivey erred when she listed Sears as an unsecured creditor. (Sears' Br. at 2-3 & nn. 3-4.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4538765/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4473-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
June 4, 2020
v.
APPELLATE DIVISION
ANDRES I. CHAVARRIA,
Defendant-Appellant.
__________________________
Submitted April 27, 2020 – Decided June 4, 2020
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Law Division, Sussex County, Accusation Nos. 18-10-
0303 and 18-10-0304.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Catlin A. Davis, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Defendant Andres I. Chavarria pleaded guilty to two counts of fourth -
degree operating a motor vehicle during a period of license suspension or
revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving
while under the influence (DUI), or N.J.S.A. 39:4-50.4a, refusal to provide a
breath sample. N.J.S.A. 2C:40-26(b). Defendant also pleaded guilty to DUI.
In accordance with his plea agreement, the court sentenced defendant to
an aggregate 360-day custodial sentence, with a 360-day mandatory period of
parole ineligibility, as a condition of serving probation. The sentence was
comprised of consecutive 180-day terms of imprisonment with 180-day
periods of parole ineligibility as a condition of probation for defendant's
convictions under N.J.S.A. 2C:40-26(b). The court also imposed a 180-day
concurrent custodial sentence on the DUI conviction.1
Defendant appeals from his sentence, arguing the probationary portions
of his sentence are illegal because the Criminal Code does not authorize
mandatory periods of parole ineligibility as a condition of probation. He also
contends the court did not consider and find the required factors for imposing
consecutive sentences under State v. Yarbough, 100 N.J. 627 (1985).
Originally argued on the excessive sentencing calendar, the appeal was placed
1
The sentence included other conditions—payment of fines and penalties; a
ten-year suspension of defendant's driving privileges; and other mandatory
penalties for defendant's DUI conviction—that are not pertinent to this appeal.
A-4473-18T3
2
on a plenary calendar to more fully develop the arguments challenging the
legality of defendant's sentences.
Defendant presents the following arguments for our consideration:
THE SENTENCES IMPOSED UPON DEFENDANT
ARE ILLEGAL, AS [N.J.S.A.] 2C:40-26 REQUIRES
A SENTENCE OF IMPRISONMENT,
PROBATIONARY SENTENCES CANNOT
INCLUDE PERIODS OF PAROLE INELIGIBILITY,
AND THE CONSECUTIVE TERMS WERE
IMPOSED WITHOUT CONSIDERATION OF THE
YARBOUGH GUIDELINES[.]
We have carefully considered the record and reject defendant's claim the
Criminal Code does not authorize a sentence of probation conditioned on
service of a term of imprisonment that includes a mandatory period of parole
ineligibility. We agree the court did not expressly address the factors required
for the imposition of consecutive sentences under Yarbough, and we find the
court incorrectly imposed sentences that included consecutive terms of
imprisonment and concurrent terms of probation. We therefore vacate the
court's imposition of consecutive terms of imprisonment and concurrent
probationary terms, and we remand for resentencing.
I.
Defendant contends his sentences are illegal because the Criminal Code
does not authorize a probationary sentence conditioned on service of
imprisonment that includes a mandatory period of parole ineligibility. Our
A-4473-18T3
3
Supreme Court has explained "[t]here are two categories of illegal sentences:
those that exceed the penalties authorized for a particular offense, and those
that are not authorized by law." State v. Hyland, 238 N.J. 135, 145 (2019).
Defendant contends his sentences are within the latter category because "[a]
sentence 'not imposed in accordance with law' includes 'a disposition [not]
authorized by the [Criminal] Code.'" State v. Drake, 444 N.J. Super. 265, 271
(App. Div. 2016) (quoting State v. Murray, 162 N.J. 240, 247 (2000)).
Defendant's argument his sentences are not authorized by the Criminal
Code is based on his interpretation of various statutory provisions. In the first
instance, defendant notes that a conviction under N.J.S.A. 2C:40-26 requires
imposition of a "term of imprisonment" which shall include "a fixed minimum
sentence of not less than 180 days during which the defendant shall not be
eligible for parole." N.J.S.A. 2C:40-26(c). He contends that, because a term
of imprisonment with a minimum period of parole ineligibility is a required
disposition under N.J.S.A. 2C:40-26, a sentence of imprisonment as a
condition of probation is not an authorized sentence for individuals convicted
of the crime.
Defendant also relies on N.J.S.A. 2C:43-2, which "enumerates the
available sentencing alternatives" under the Criminal Code. State v. O'Connor,
105 N.J. 399, 406 (1987). He argues that because N.J.S.A. 2C:40-26 mandates
A-4473-18T3
4
a sentence of imprisonment, the only enumerated sentencing alternative
available under N.J.S.A. 2C:43-2 is imposition of a term of imprisonment
under subsection (b)(3). In pertinent part, N.J.S.A. 2C:43-2(b)(3) provides, as
an authorized sentencing alternative, for "imprisonment for a term authorized
by . . . [N.J.S.A.] 2C:43-6."
Defendant acknowledges subsection (b)(2) of N.J.S.A. 2C:43-2
authorizes imposition of a sentence of up to 364 days of imprisonment as a
condition of probation for a criminal conviction. He claims, however, N.J.S.A.
2C:43-2(b)(2) does not authorize the sentences imposed by the court because
he was sentenced to terms of "imprisonment" under N.J.S.A. 2C:43-6.
Defendant contends that "by mandating the imposition[] of 'a term of
imprisonment' and a period of parole ineligibility, . . . the Legislature intended
one convicted of a [N.J.S.A.] 2C:40-26 offense to be sentenced to
imprisonment pursuant to [N.J.S.A.] 2C:43-2(b)(3), and that the probationary
sentencing option set forth in [N.J.S.A.] 2C:43-2(b)(2) is not available."
Defendant's arguments require an interpretation of the Criminal Code's
sentencing provisions. "'Questions related to statutory interpretation are legal
ones.' Thus, '[w]e review such decisions de novo, "unconstrained by deference
to the decisions of the trial court . . . ."'" State v. Rodriguez, 238 N.J. 105, 113
A-4473-18T3
5
(2019) (first quoting State v. S.B., 230 N.J. 62, 67 (2017), then quoting State
v. Grate, 220 N.J. 317, 329 (2015)).
Our review begins with the plain language of the statutes, "which is the
'best indicator' of legislative intent," ibid. (quoting DiProspero v. Penn, 183
N.J. 477, 492 (2005)), and, in conducting the analysis, "[a] statute's plain
language must be construed 'in context with related provisions so as to give
sense to the legislation as a whole,'" ibid. (quoting Spade v. Select Comfort
Corp., 232 N.J. 504, 515 (2018)). "Unless it is 'inconsistent with the manifest
intent of the legislature,' or 'another or different meaning is expressly
indicated,' we ascribe to the Legislature's words and phrases 'their generally
accepted meaning, according to the approved usage of the language.'" Ibid.
(quoting Finkelman v. Nat'l Football League, 236 N.J. 280, 289 (2019)).
Where, as here, "the plain language leads to a clear and unambiguous
result, . . . our interpretative process is over." Id. at 114 (quoting Johnson v.
Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)).
In construing the pertinent statutes, we follow the Court's lead in
Rodriguez, and we "begin our application of the canons of statutory
construction with" N.J.S.A. 2C:43-2, "the Criminal Code's provision
governing, generally, the imposition of sentences." Rodriguez, 238 N.J. at
114; see also State v. Crawford, 379 N.J. Super. 250, 258 (App. Div. 2005).
A-4473-18T3
6
N.J.S.A. 2C:43-2(a) states that "[e]xcept as otherwise provided by" the
Criminal Code, "all persons convicted of an offense or offenses shall be
sentenced in accordance" with N.J.S.A. 2C:43-2(b).
N.J.S.A. 2C:43-2(b) lists the available sentencing alternatives, and it
also makes clear imposition of the delineated alternatives is subject to two
exceptions. The statute states that, "[e]xcept as provided in subsection
[(a)] . . . and subject to the applicable provisions of the" Criminal Code, a
court "may sentence" a defendant pursuant to seven specified sentencing
alternatives. N.J.S.A. 2C:43-2(b). Pertinent to this appeal, the alternatives
include placing a defendant "on probation and, in the case of a person
convicted of a crime, to imprisonment for a term fixed by the court not
exceeding 364 days to be served as a condition of probation[.]" N.J.S.A.
2C:43-2(b)(2). "This is referred to as a split sentence, and the custodial term
[of imprisonment] must be served in a county jail, whereas a sentence of
imprisonment [exceeding 364 days] must be served in a state correctional
facility."2 Crawford, 379 N.J. Super. at 258 (citing State v. Hartye, 105 N.J.
411, 419 (1987)).
2
N.J.S.A. 2C:43-2(b)(2) is subject to the general exceptions set forth in
subsection (b) and also to an additional exception not at issue here. More
specifically, N.J.S.A. 2C:43-2(b)(2) states that "[e]xcept as provided in
subsection [(g)]," a defendant may be placed on probation. Subsection (g)
A-4473-18T3
7
N.J.S.A. 2C:43-2(b) includes another sentencing alternative pertinent
here. As noted, subsection (b)(3) provides for a sentence "[t]o imprisonment
for a term authorized by . . . N.J.S.A. 2C:43-6."3 The statute prescribes the
ordinary terms of imprisonment for the different degrees of crimes under the
Criminal Code, N.J.S.A. 2C:43-6(a)(1) to (4), and it details the standards for
imposition of periods of parole ineligibility "[a]s part of a sentence for any
crime," N.J.S.A. 2C:43-6(b).4
Defendant challenges the sentences imposed for his convictions for
violating N.J.S.A. 2C:40-26(b), a fourth-degree crime. The authorized
ordinary term of imprisonment for a fourth-degree crime is up to eighteen
months. N.J.S.A. 2C:43-6(a)(4). N.J.S.A. 2C:40-26, however, provides that
"[n]otwithstanding the term of imprisonment provided under N.J.S.A. 2C:43 -
(continued)
prohibits imposition of a probationary sentence for defendants convicted of
"any offense enumerated in" N.J.S.A. 2C:43-6.4(a). N.J.S.A. 2C:43-2(g).
3
N.J.S.A. 2C:43-2(b)(3) also provides for sentences of imprisonment for a
term authorized by N.J.S.A. 2C:11-3 (defining sentences for homicide
convictions); N.J.S.A. 2C:43-5 (providing for sentencing of young adult
offenders); N.J.S.A. 2C:43-7 (defining requirements for extended-term
sentences); N.J.S.A. 2C:43-8 (defining sentences for disorderly persons and
petty disorderly persons offenses); and N.J.S.A. 2C:44-5 (defining
requirements for sentences for multiple offenses). We do not address these
provisions because defendant does not argue they apply here.
4
N.J.S.A. 2C:43-6 includes other provisions related to sentencing that are not
relevant to the issues presented on appeal. See N.J.S.A. 2C:43-6(c) to (i).
A-4473-18T3
8
6," a person convicted of the offense must receive "a fixed minimum sentence
of not less than 180 days during which the defendant shall not be eligible for
parole." N.J.S.A. 2C:40-26(c). In other words, a conviction under N.J.S.A.
2C:40-26 requires imposition of a minimum 180-day period of imprisonment
with a 180-day minimum period of parole ineligibility, independent of the
authority to impose parole ineligibility periods under N.J.S.A. 2C:43-6(b).
"Title 2C does not allow a judge sentencing discretion to impose a lesser
period of incarceration when a mandatory minimum term is required, absent
specific language to that effect." State v. French, 437 N.J. Super. 333, 337
(App. Div. 2014) (citing State v. Lopez, 395 N.J. Super. 98, 107-08 (App. Div.
2007)). Indeed, "[a] sentence with a mandatory period of parole ineligibility
cannot be reduced below the statutorily mandated parole ineligibility term."
State v. Kearns, 393 N.J. Super. 107, 111 (App. Div. 2007) (citing State v.
Mendel, 212 N.J. Super. 110, 112-13 (App. Div. 1986)).
For each of defendant's criminal convictions, the court imposed a term of
imprisonment in precise compliance with the requirements of N.J.S.A. 2C:40 -
26(c). The court sentenced defendant for each conviction to a 180-day term of
imprisonment subject to the requirement that he serve 180 days without
eligibility for parole. See N.J.S.A. 2C:40-26(c). Defendant's aggregate
A-4473-18T3
9
sentence totaled 360 days, all of which is to be served without parole
eligibility.
As noted, an authorized sentence under N.J.S.A. 2C:43-2(b)(2) for
conviction of a crime includes "imprisonment for a term fixed by the court not
exceeding 364 days . . . as a condition of probation." Here, defendant's
separate sentences for each conviction under N.J.S.A. 2C:40-26, and his
aggregate sentence, fall within the parameters of the permissible term of
imprisonment under N.J.S.A. 2C:43-2(b)(2) for a split sentence. Thus,
defendant's sentences are expressly authorized by N.J.S.A. 2C:43-2(b)(2)'s
plain language, and they are not illegal. See Hyland, 238 N.J. at 145.
Moreover, the periods of parole ineligibility the court imposed are required by
N.J.S.A. 2C:40-26(c). See State v. Pimentel, 461 N.J. Super. 468, 475 (App.
Div. 2019) (noting N.J.S.A. 2C:40-26 "prescribes a mandatory minimum jail
sentence of 180 days").
Defendant ignores the plain language of N.J.S.A. 2C:43-2(b)(2), and he
contends the statute does not authorize a split sentence where the term of
imprisonment imposed includes a mandatory period of parole ineligibility. We
reject that argument because the statute does not include such a limitation, and
"[i]t is not our job to engraft requirements [on a statute] that the Legislature
did not include. It is our role to enforce the legislative intent as expressed
A-4473-18T3
10
through the words used by the Legislature." Lippman v. Ethicon, Inc., 222
N.J. 362, 388 (2015).
We are also not persuaded by defendant's claim the split sentences
imposed are illegal because they are not expressly authorized by the Criminal
Code. Defendant asserts there is no statutory provision permitting a split
sentence that includes a term of imprisonment subject to a mandatory period of
parole disqualification, and, for that reason, his sentences are illegal.
The enumerated sentencing alternatives listed in N.J.S.A. 2C:43-2(b)
must be applied "except as provided in subsection [(a)]," and subsection (a)
includes a more general exception. N.J.S.A. 2C:43-2(a) requires sentencing in
accordance with the seven enumerated sentencing alternatives, "[e]xcept as
otherwise provided by" the Criminal Code. In other words, the enumerated
sentencing alternatives are authorized and must be employed in sentencing
unless the Criminal Code provides otherwise.
As we have explained, defendant was sentenced in exacting compliance
with N.J.S.A. 2C:43-2(b)(2)'s plain language, and the Criminal Code does not
"otherwise provide[]" that a split sentence cannot include a period of parole
ineligibility. Indeed, defendant does not identify any statutory provision
barring imposition of a period of parole ineligibility on the term of
imprisonment imposed as part of a split sentence. Again, if the Legislature
A-4473-18T3
11
intended to prohibit a split sentence that included a term of imprisonment
subject to a mandatory period of parole ineligibility, it would have "otherwise
provided" for such an exception in the Criminal Code. It did not, and we
cannot find or rely upon that which is not there. See Lippman, 222 N.J. at 388.
In Rodriguez, the Court determined an intermittent custodial sentence
imposed pursuant to subsection (b)(7) of N.J.S.A. 2C:43-2 was not an
authorized sentence of imprisonment for a conviction under N.J.S.A. 2C:40-
26(c). 238 N.J. at 117. The Court discussed the differences between an
intermittent sentence of imprisonment and a sentence of imprisonment subject
to a period of parole ineligibility, and it found service of an intermittent
sentence under N.J.S.A. 2C:43-2(b)(7) is inconsistent with, and does not meet
the requirements of, the period of parole ineligibility mandated under N.J.S.A.
2C:40-26(c). Id. at 114-19. We have similarly held a sentence that is
inconsistent with service of a mandatory period of parole ineligibility is an
unauthorized and illegal sentence. See French, 437 N.J. Super. at 338 (holding
"no discretion exists in Title 2C to replace half of the mandatory 180 days of
incarceration with a non-jail rehabilitation program"); State v. Harris, 439 N.J.
Super. 150, 160 (App. Div. 2015) (holding "[b]ecause N.J.S.A. 2C:40 -26(c)
requires a 'fixed minimum sentence of not less than 180 days' without parole
A-4473-18T3
12
eligibility for violations of N.J.S.A. 2C:40-26(b), a sentence to a non-custodial
'alternative program,' instead of jail, is plainly illegal").
In Rodriguez, the Court reasoned that an intermittent sentence under
N.J.S.A. 2C:43-2(b)(7) is not authorized for a conviction under N.J.S.A.
2C:40-26 because N.J.S.A. 2C:40-26(c) "otherwise provide[s]" for service of a
mandatory period of parole ineligibility. 238 N.J. at 117. Here, unlike in
Rodriguez, there is no Criminal Code provision that "otherwise provides" for a
sentence that is inconsistent with imposition of a split sentence for a p erson
convicted of violating N.J.S.A. 2C:40-26. Imposition of the parole
ineligibility period required under N.J.S.A. 2C:40-26(c) is not inconsistent
with imposition of a split sentence. The period of parole ineligibility merely
defines the manner in which the term of imprisonment that is imposed as a
condition of probation will be served. The plain language of N.J.S.A. 2C:43 -
2(b)(2) imposes only one condition related to the permissible term of
imprisonment for a split sentence; it must be 364 days or less. Defendant's
sentences, individually and in the aggregate, satisfy that condition, and they
are therefore authorized by N.J.S.A. 2C:43-2(b)(2).
Defendant also contends he could not be sentenced in accordance with
N.J.S.A. 2C:43-2(b)(2) because the court imposed a term of "imprisonment" in
accordance with N.J.S.A. 2C:43-6. He relies on Hartye, where the Court
A-4473-18T3
13
considered whether a term of imprisonment as a condition of probation could
be imposed when, due to the defendant's lack of a prior conviction of an
offense, the presumption of non-incarceration under N.J.S.A. 2C:44-1(e)
applied. 105 N.J. at 418-20. In its analysis, the Court in Hartye explained that
"a sentence of imprisonment under N.J.S.A. 2C:43-2(b)(3) was intended by the
Legislature to be different and distinct from a prison term imposed as a
condition of probation under N.J.S.A. 2C:43-2(b)(2)." Id. at 419.
The Court recognized that both subsections (b)(2) and (b)(3) of N.J.S.A.
2C:43-2 provide for imposition of terms of "imprisonment," and it noted
differences between the imprisonment authorized in each subsection. Id. at
418-19. For example, the Court explained that a term of imprisonment under
subsection (b)(3) "must be served in a state correctional facility," whereas the
custodial portion of a split sentence under subsection (b)(2) may only be
served in the county jail. 5 Id. at 419; see also O'Connor, 105 N.J. at 409
5
The Court noted an additional difference between imprisonment under
N.J.S.A. 2C:43-2(b)(2) and (b)(3). Id. at 419. The Court explained that
"unlike a state prison term, the custodial element of a probationary sentence
may commence at any time during the probationary period, and may be
reduced on defendant's motion at any time before the sentence of probation has
expired." Ibid. (citations omitted). These differences are irrelevant to our
consideration of the legality of defendant's sentences because, as noted,
defendant's sentences render him ineligible to serve a state prison term, and the
Court in Hartye was not required to, and did not, address sentences that
included mandatory periods of parole ineligibility.
A-4473-18T3
14
(explaining the distinction between imprisonment under N.J.S.A. 2C:43-
2(b)(2) and (b)(3) is that "a term of imprisonment as a condition of probation
must be served in a county jail, while in the majority of cases a sentence of
imprisonment [under subsection (b)(3)] must be served in a state correctional
facility").
Measured against those standards, the custodial portion of defendant's
sentence, including imposition of the period of parole ineligibility, falls within
the imprisonment authorized by N.J.S.A. 2C:43-2(b)(2) and clearly outside the
imprisonment authorized by N.J.S.A. 2C:43-2(b)(3). Defendant's aggregate
sentence is less than 364 days, so he will serve the sentence in the county jail
and not in a state prison facility. Compare N.J.S.A. 2C:43-10(a) (providing
sentences of imprisonment of one year or greater shall be served in the custody
of the Commissioner of the Department of Corrections) with N.J.S.A. 2C:43-
10(c) (providing, in pertinent part, sentences of imprisonment of less than one
year shall be served in the county jail).
The Court in Hartye also stated that "a defendant sentenced to a prison
term as a condition of probation may not be exposed to the parole ineligibility
term authorized by N.J.S.A. 2C:43-6(b)." 105 N.J. at 419. In support of that
declaration, the Court cites State v. Guzman, 199 N.J. Super. 346 (Law Div.
1985), where the trial court explained its imposition of a custodial term that
A-4473-18T3
15
included a period of parole ineligibility under N.J.S.A. 2C:43-6(b). Ibid. The
court in Guzman did not impose a split sentence, but it noted that under the
circumstances presented, "no ineligibility term could be imposed on
imprisonment as a condition of probation," "as no sentence [was] imposed
under N.J.S.A. 2C:43-6 or any other section of the [Criminal] Code
authorizing or requiring same." 199 N.J. Super. at 349 n.1.
Thus, the court did not suggest a split sentence could not include a
period of parole ineligibility during a period of imprisonment imposed as a
condition of probation. To the contrary, the court stated only that it could not
impose a period of parole ineligibility because it was sentencing defendant to a
county jail term of 364 days imprisonment and the Criminal Code did not
otherwise authorize or require imposition of a period of parole ineligibility on
the term of imprisonment imposed.
Here, the periods of parole ineligibility imposed as conditions of
defendant's imprisonment do not fall within the Hartye proscription. 105 N.J.
at 419. The trial court did not sentence defendant to a term of imprisonment at
a state correctional facility in accordance with N.J.S.A. 2C:43-2(b)(3) or
impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b).
Instead, the court imposed a county jail sentence as authorized by N.J.S.A.
2C:43-2(b)(2) and imposed a parole ineligibility period solely as mandated by
A-4473-18T3
16
N.J.S.A. 2C:40-26(c).6 In addition, as implicitly recognized by the court in
Guzman, where, as here, a period of parole ineligibility is authorized or
required by another provision of the Criminal Code, imprisonment that
includes a parole ineligibility period may be imposed as a condition of
probation under N.J.S.A. 2C:43-2(b)(2). 199 N.J. Super. at 349 n.1.
We also observe that our Supreme Court has, in another context, directly
approved imposition of a split sentence under N.J.S.A. 2C:43-2(b)(2) that
included imprisonment and a period of parole ineligibility. In State v. Pineda,
the defendant pleaded guilty to death by auto, N.J.S.A. 2C:11-5(b), and he was
sentenced to a four-year custodial term, subject to a 270-day period of parole
ineligibility.7 119 N.J. 621, 622 (1990). At that time, the death by auto
6
As the State correctly notes, if defendant's sentences on each of his
convictions for violating N.J.S.A. 2C:40-26 were imposed pursuant to N.J.S.A.
2C:43-6, they would be illegal sentences. On each conviction, the court
sentenced defendant to 180-days imprisonment with a 180-day period of parole
ineligibility. Under N.J.S.A. 2C:43-6(b), however, a period of parole
ineligibility may not exceed fifty percent of the ordinary term imposed. If
defendant had been sentenced under N.J.S.A. 2C:43-6(b), the court would have
been required to impose a 360-day sentence on each of the N.J.S.A. 2C:40-26
convictions in order to impose the mandatory 180-day periods of parole
ineligibility. The court, however, did not run afoul of the limitation contained
in N.J.S.A. 2C:43-6(b) because it imposed the period of parole ineligibility in
accordance with N.J.S.A. 2C:40-26(c).
7
N.J.S.A. 2C:11-5 was amended in 1995. L. 1995, c. 285, §§ 1, 2. In
relevant part, the amendment renamed the crime "vehicular homicide,"
A-4473-18T3
17
statute, N.J.S.A. 2C:11-5(b), mandated either imposition of a 270-day period
of incarceration or 270 days of community service as part of any sentence
imposed for a conviction. Id. at 624.
On the defendant's direct appeal, we interpreted N.J.S.A. 2C:11-5(b) "to
mean that the sentencing judge must deprive a defendant of his liberty for at
least 270 days by imprisonment without parole, community related service or a
split sentence combining the two." State v. Pineda, 227 N.J. Super. 245, 250
(App. Div. 1988). The Court rejected our interpretation and directed that a
court sentencing a defendant under N.J.S.A. 2C:11-5(b) must first determine if
imprisonment is appropriate and, if so, decide the ordinary term of
imprisonment to be imposed. Pineda, 119 N.J. at 626. Where a term of
imprisonment is imposed, the Court required imposition of the 270-day period
of parole ineligibility provided in N.J.S.A. 2C:11-5(b). Id. at 627.
More pertinent here, the Court also directed that, where the trial court
concludes a probationary sentence is appropriate, "it must condition that term
on a 270-day period of community service or of incarceration without parole
eligibility." Ibid. (emphasis added). Thus, the Court permitted and approved a
split sentence under N.J.S.A. 2C:43-2(b)(2) that includes imprisonment and a
(continued)
changed the degree of the crime to a second-degree offense, and amended the
sentencing provisions of the prior version of the statute. Ibid.
A-4473-18T3
18
mandatory period of parole ineligibility. 8 We discern no basis to reach a
different conclusion here.
We are also mindful that N.J.S.A. 2C:40-26 was enacted in 2009 and
became effective on August 1, 2011, L. 2009, c. 333, § 1, long after N.J.S.A.
2C:43-2(b)(2) was enacted in 1979 as part of the Criminal Code. L. 1979, c.
178, § 82. We may therefore properly assume the Legislature was fully aware
of the requirements for imposition of a split sentence under N.J.S.A. 2C:43-
2(b)(2) when it established the sentencing paradigm set forth in N.J.S.A.
2C:40-26(c). See In re Expungement Petition of J.S., 223 N.J. 54, 75 (2015)
(explaining the Legislature "is presumed to have been 'thoroughly conversant
with its own [prior] legislation and the judicial construction of its statutes'"
(quoting Nebesne v. Crocetti, 194 N.J. Super. 278, 281 (App. Div. 1984))).
In enacting N.J.S.A. 2C:40-26, the Legislature required imposition of a
minimum 180-day custodial sentence with a 180-day period of parole
ineligibility for those convicted of the offense. The Legislature mandated that
8
Although not presented in the context of challenges to the legality of split
sentences that include imprisonment subject to parole ineligibility terms, we
have affirmed the imposition of such split sentences imposed under N.J.S.A.
2C:43-2(b)(2). See, e.g., Pimentel, 461 N.J. Super. at 493 (affirming
imposition of a one-year period of probation conditioned on imprisonment for
"six months" in the county jail for a conviction under N.J.S.A. 2C:40-26);
State v. Sylvester, 437 N.J. Super. 1, 2-3 (App. Div. 2014) (affirming a split
sentence of a three-year probationary term conditioned on imprisonment for
180 days on a conviction for violating N.J.S.A. 2C:40-26(b)).
A-4473-18T3
19
minimum custodial sentence of imprisonment with full knowledge the plain
language of N.J.S.A. 2C:43-2(b)(2) authorized imposition of imprisonment as
a condition of probation. If the Legislature intended to exempt sentences of
imprisonment imposed under N.J.S.A. 2C:40-26(c) from those permitted by
N.J.S.A. 2C:43-2(b)(2) as a condition of probation, it would have done so
directly. Instead, the Legislature let the plain language of N.J.S.A. 2C:43-
2(b)(2) define the terms of imprisonment that may be imposed as a condition
of probation, and, as noted, a sentence that is less than 364 days that includes a
mandatory period of parole ineligibility imposed under N.J.S.A. 2C:40-26(c) is
therefore authorized and legal.
While we conclude the plain language of N.J.S.A. 2C:43-2(b)(2)
authorizes defendant's custodial sentences as a condition of his probation, we
also observe a probationary sentence conditioned on service of the mandatory
period of parole ineligibility is consistent with the Legislature's
"criminaliz[ation] [of] the act of driving while one's license is suspended for a
second or subsequent [DUI] conviction" as part of its "arsenal of deterrence."
State v. Rizzitello, 447 N.J. Super. 301, 315 (App. Div. 2016). Those
convicted of a violation of N.J.S.A. 2C:40-26(b) have previously had their
driver's licenses suspended on at least two occasions, yet they choose to
continue to operate motor vehicles at the risk of being convicted of a fourth-
A-4473-18T3
20
degree crime and sentenced to a minimum 180 days of imprisonment. Indeed,
here, defendant not only drove while on suspension in violation of N.J.S.A.
2C:40-26, he did so on one occasion while under the influence.
"This court has acknowledged the escalating penalties imposed by the
Legislature in an attempt to deter chronic drunk drivers," Pimentel, 461 N.J.
Super. at 488, and N.J.S.A. 2C:40-26 serves that purpose by imposing "a
mandatory period of 'imprisonment' for [the] offense," thereby protecting the
"public safety" by ensuring, at least during a defendant's term of
imprisonment, that he or she does not "continue[] to drive despite the license
suspension," Harris, 439 N.J. Super. at 160.
The need to deter a defendant who has a history of DUI or refusal
offenses from driving while suspended in violation of N.J.S.A. 2C:40-26 does
not end with a release after a 180-day minimum mandatory sentence. It is
wholly consistent with "the State's strong policy objective of deterring repeat
drunk driving offenders," Pimentel, 461 N.J. Super. at 488, to require
defendants who are convicted of violating N.J.S.A. 2C:40-26 to obtain the
benefit of probation supervision following release from imprisonment.
Probation supervision provides access to resources to address issues related to
alcohol and substance abuse, see N.J.S.A. 2C:45-1(b)(1) to (14), and provides
continuing deterrence because a violation of probation may result in a
A-4473-18T3
21
defendant's resentencing to a period of imprisonment. The Legislature's
decision to allow split sentences for those convicted of violating N.J.S.A.
2C:40-26 is therefore not only supported by the plain language of N.J.S.A.
2C:43-2(b)(2), it is also consistent with the policies underlying N.J.S.A.
2C:40-26.
In sum, the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes the split
sentences imposed by the court on defendant's convictions for violating
N.J.S.A. 2C:40-26(b). The court imposed a custodial term of a length—360
days—that qualifies as a term of imprisonment permitting imposition of a split
sentence, N.J.S.A. 2C:43-2(b)(2), and defendant fails to identify any other
statute within the Criminal Code that otherwise provides the term of
imprisonment for a split sentence may not include a mandatory period of
parole ineligibility. We therefore reject defendant's claim the split sentence is
unauthorized or illegal.
II.
Defendant next argues the court improperly imposed consecutive
custodial terms for his N.J.S.A. 2C:40-26(b) convictions without considering
the factors set forth in Yarbough. Defendant requests a remand for
resentencing because the court did not provide a separate statement of reasons
for imposing consecutive sentences and, he contends, consecutive sentences
A-4473-18T3
22
are not warranted. The State claims the consecutive sentences should be
affirmed because the Yarbough factors supporting imposition of consecutive
sentences are self-evident. The State, however, requests a remand for
correction of the judgment of conviction because the court stated at sentencing
the probationary terms would run consecutively, but the judgment of
conviction provides the terms shall be served concurrently.
As we have explained, we affirm the court's imposition of the mandatory
minimum 180-days terms of imprisonment as a condition of probation on each
of defendant's convictions for violating N.J.S.A. 2C:40-26. However, for two
reasons, we are constrained to vacate the consecutive sentences of
imprisonment and probationary terms, and remand for resentencing.
First, the Court in Yarbough established the factors a trial court must
consider in determining whether to impose consecutive sentences. 100 N.J. at
643-44. A court must "articulate [its] reasons" for imposing consecutive
sentences "with specific reference to the Yarbough factors." State v. Abdullah,
184 N.J. 497, 515 (2005). "'[A] statement of reasons is a necessary
prerequisite for adequate appellate review of sentencing decisions . . . [in order
to] determine whether the trial court's imposition of consecutive sentences was
a valid exercise of discretion.'" State v. Soto, 385 N.J. Super. 247, 256 (App.
Div. 2006) (quoting State v. Miller, 108 N.J. 112, 122 (1987)). Here, the
A-4473-18T3
23
court's imposition of consecutive sentences is untethered to any findings of the
Yarbough factors. See id. at 256 ("Failure to provide reasons for the
imposition of a consecutive sentence may compel a remand for
resentencing.").
Second, based on our review of the record, we cannot discern the precise
manner the court intended the probationary terms to run. We therefore reject
the State's claim a remand for an amendment of the judgment of conviction is
all that is required to address the court's imposition of the probationary terms
of defendant's split sentences. The judgment of conviction provides the
custodial portions of the split sentences shall be served consecutively and the
probationary terms shall be served concurrently. The Criminal Code, however,
"does not permit, for multiple offenses, sentences that are partially consecutive
and partially concurrent." State v. Rogers, 124 N.J. 113, 120 (1991).
On remand, the court shall address and make findings under Yarbough
supporting its determination whether to impose concurrent or consecutive
sentences for the mandatory terms of imprisonment for defendant's convictions
under N.J.S.A. 2C:40-26. In its determination concerning the imposition of
probationary terms for defendant's split sentences, the court shall: consider it
cannot impose sentences that are partially consecutive and partially
concurrent; precisely define when any probationary terms imposed shall begin
A-4473-18T3
24
and end; and address and make findings concerning the imposition of
sentences for multiple offenses under N.J.S.A. 2C:44-5(f).
Affirmed in part, vacated in part, and remanded for further proceedings
in accordance with this opinion. We do not retain jurisdiction.
A-4473-18T3
25 | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2834691/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
GEMALTO, INC., )
)
Plaintiff, )
)
v. )
) C.A. No. N15M-07-052
MERCHANT CUSTOMER EXCHANGES, LLC, )
)
Defendant. )
)
Date Submitted: August 21, 2015
Date Decided: September 2, 2015
ORDER
GEMALTO’S MOTION TO COMPEL DISCOVERY OF DOCUMENTS AND
NON-PARTY PAYDIANT, LLC’S MOTION TO QUASH PLAINTIFF’S OUT-OF-
STATE SUBPOENA
Daniel A. Griffith, Esquire, WHITEFORD TAYLOR PRESTON, LLC, 405 North King Street,
Wilmington, DE 19801; Benjamin L. Stewart, Esquire, pro hac vice, BAILEY BRAUER, PLLC,
Campbell Centre I, 8350 N. Central Expy, Site 206, Dallas Texas 75206. Attorney for Gemalto,
Inc.
Karl G. Randall, Esquire, MORRIS, NICHOLS, ARSHT & TUNNELL, LLP, 1201 N. Market
Street, P.O. Box 1347, Wilmington Delaware 19899-1347. Attorney for Non-Party Paydiant,
LLC.
MANNING, Commissioner
Before the Court is Plaintiff Gemalto’s Motion to Compel Production of Documents,
based on its out-of-state subpoena dues tecum, directed against non-Party Paydiant, LLC.
Additionally, Paydiant, has moved to Quash Plaintiff’s out-of-state subpoena. Paydiant argues
that Gemalto’s subpoena is unduly burdensome and improperly seeks to obtain confidential and
trade secret information of Paydiant.
FACTS AND PROCEDURAL HISTORY
A business dispute between Gemalto and Merchant Customer Exchanges, LLC, (MCX)
is currently being arbitrated before the American Arbitration Association (AAA) in Texas. The
essence of the dispute is that MCX terminated its contact with Gemalto for the development of
payment processing software for use by smartphones, in violation of their agreement, and failed
to pay Gemalto a $40 million USD decommissioning indemnity payment. Upon termination of
the contract, MCX hired Paydiant to develop the same type of software; Paydient and Gemalto
were, and are still, direct competitors in this field. On April 21, 2015, the AAA authorized a
subpoena directed against Paydiant (Delaware Corporation). On July 10, 2015, a Delaware
subpoena duces tecum was served on Paydiant’s registered agent in Dover Delaware. Receiving
no acceptable response, Gemalto filed a Motion to Compel Production of Documents from
Paydiant on July 30, 2015. In turn, Paydiant filed a Motion to Quash Gemalto’s Motion on
August 7, 2015. Paydiant argues that the Request for Production is unduly burdensome and will
force it to reveal confidential and proprietary trade secret information to a direct competitor. 1 A
hearing before all parties was held on August 21, 2015.
1
Paydiant also points out that it was not afforded an opportunity to be heard by the AAA prior to issuance of the
subpoena in question and had no chance to object at that stage—a valid point as far as the Court can see.
1
ANALYSIS
Discovery in a civil case is generally controlled by Superior Court Civil Rule 26.2
“Parties may seek discovery of any non-privileged, relevant matter, as well as information
reasonably calculated to lead to the discovery of admissible information.” 3 Rule 26(a)(1)(a)(i)
states that the Court shall limit the extent of discovery if it determines that the “discovery sought
is unreasonably cumulative or duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive… .” Moreover, when trade secret information is
at issue, the dispute is controlled by Super Court Civil Rule 45(c)(3)(A). Rule 45(c)(3)(A) states
that “[o]n timely motion, the Court shall quash or modify a subpoena if it . . . (ii) requires
disclosure of privileged information or other protected matter and no exception or waiver
applies.”
2
Rule 26. General provisions governing discovery.
(a) Discovery methods. -- Parties may obtain discovery by one or more of the following methods: Depositions upon
oral examination or written questions; written interrogatories; production of documents or things or permission to
enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests
for admission.
(b) Discovery scope and limits. -- Unless otherwise limited by order of the Court in accordance with these rules, the
scope of discovery is as follows:
(1) In general. -- Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party, including the existence, description, nature, custody, condition and location
of any books, documents, or other tangible things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the Court if it
determines that: (i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly
burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the
parties' resources, and the importance of the issues at stake in the litigation. The Court may act upon its own
initiative after reasonable notice or pursuant to a motion under subdivision (c).
3
Huff Fund Inv. P’Ship v. CKX, INC., 2012 WL 3552687, at *1 (Del. Ch. August 15, 2012).
2
Deposition Topics
Gemalto’s Request for Production of Documents comprised a list of ten topics. 4 Gemalto
subsequently withdraw its request as to items No.5, No.6 and No.9. The crux of the dispute, as
Gemalto alleges, is that MCX terminated the contract for reasons of convenience—namely that
MCX’s new CEO, Dekker Davison, had a prior relationship with Paydiant, a company now
owned by eBay Inc., and wanted them to have the development contract. Conversely, MCX
claims that it terminated the contract based on the failure of Gemalto to meet performance goals,
and nothing more. Thus, the dispositive question is what was the real motivation behind MCX’s
termination of the contract with Gemalto.
According to argument by counsel for Gemalto, discovery against MCX is still on-going
at this stage and there are currently motions to compel pending in other courts. Additionally,
Gemalto’s pleadings indicate that, to date, MCX has provided over 312,000 pages of responsive
documents in discovery. As noted, the issue in this litigation is the reason why MCX terminated
the contract with Gemalto. Logically, documents evidencing MCX’s internal thought processes
and subjective opinions of Gemalto, will be found in the possession of MCX.
Gemalto has not made any showing, thus far, that it cannot obtain all relevant discovery
from MCX—it just wants to cast a wider net and see what Paydiant might have in its possession.
As a non-party to the litigation, requiring Paydiant to produce any discovery is burdensome;
whether it is “unduly burdensome” is a question for another day. In any event, as a non-party,
Paydiant should not be placed in a position of providing discovery that is duplicative, cumulative
or could more conveniently and reasonably be located in the possession of its creator—MCX.
However, the Court recognizes that in the course of soliciting Paydiant to take-over the software
4
Plaintiff’s Motion to Compel, Exhibit C at 4.
3
development from Gemalto, MCX may have communicated information concerning the reason
for Gemalto’s termination to Paydiant; information that may be relevant to Gemalto’s claim.
Accordingly, the Court will limit discovery to the following topics only:
1. All documents (created prior to the filing of the Arbitration Complaint) in the
possession of Paydiant regarding, referencing or concerning MCX’s decision to terminate its
agreement with Gemalto.
2. All documents (created prior to the filing of the Arbitration Complaint) in the
possession of Paydiant regarding the Lexington pilot, its alleged failure and/or Gemalto’s ability,
or lack thereof, to perform under the terms of its agreement with MCX.
3. All documents regarding Gemalto and its contract with MCX, between Paydiant and
Dekkers Davidson, created between July 2013 and the filing of the Arbitration Complaint.
As suggested by counsel for Gemalto at the hearing, Gemalto will pay all costs
reasonably associated with the discovery production by Paydiant. The term “document” will
have the same definition as originally provided by Gemalto. Nothing in this production should
be taken as to require Paydiant to disclose trade secrets or commercially sensitive information. If
necessary, however, Paydiant is entitled to redact such information and shall create a Privilege
Log for future review by the Court if necessary.
4
CONCLUSION
For the reasons set forth herein, Gemalto’s Motion to Compel is GRANTED in part and
DENIED in part; Paydiant’s Motion to Quash is also GRANTED in part and DENIED in
part.
IT IS SO ORDERED.
/s/ Bradley V. Manning
BRADLEY V. MANNING,
Commissioner
oc: Prothonotary
5 | 01-03-2023 | 09-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/997272/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6876
CHARLES PATRICK MCMANUS,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry C. Morgan, Jr., District
Judge. (CA-97-449-2)
Submitted: November 19, 1998 Decided: December 2, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Charles Patrick McManus, Appellant Pro Se. Leah Ann Darron, Assis-
tant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Patrick McManus seeks to appeal the district court’s
order denying relief on his petition filed under 28 U.S.C.A. § 2254
(West 1994 & Supp. 1998). We have reviewed the record and the dis-
trict court’s opinion accepting the recommendation of the magis-
trate judge and find no reversible error. Accordingly, we deny a
certificate of appealability and dismiss the appeal on the reason-
ing of the district court. McManus v. Angelone, No. CA-97-449-2
(E.D. Va. May 19, 1997).* We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
DISMISSED
*
Although the district court’s order is marked as “filed” on
May 18, 1998, the district court’s records show that it was entered
on May 19, 1998. Pursuant to the Federal Rules of Civil Procedure,
it is the date that the order was physically entered on the docket
sheet that we take as the effective date of the district court’s
decision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir.
1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/127716/ | 537 U.S. 1233
HARTFORD INSURANCE COMPANY OF THE MIDWESTv.HUTH.
No. 02-988.
Supreme Court of United States.
March 3, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 298 F. 3d 800. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2827815/ | This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1335, A14-1720
In re the Marriage of:
Kerry S. Spolum, petitioner,
Respondent,
vs.
Michael J. D’Amato,
Appellant
Filed August 17, 2015
Reversed and remanded
Worke, Judge
Ramsey County District Court
File Nos. 62-FA-10-2756, 62-DA-FA-10-852
Nancy Zalusky Berg, Aure Schermerhorn-Snyder, Walling, Berg & Debele, P.A.,
Minneapolis, Minnesota (for respondent)
Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota; and
Pamela L. Green, Golden Valley, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Hudson, Judge; and Worke,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant argues that the district court abused its discretion by awarding
respondent permanent maintenance and in calculating the amount of maintenance and his
income. We agree and reverse and remand.
FACTS
Appellant Michael J. D’Amato and respondent Kerry S. Spolum married on
September 15, 2001. They have one son, born July 6, 2003.
Spolum was a flight attendant, earning approximately $46,000 annually. Spolum
took a leave to plan the wedding, and extended the leave following the 9/11 attacks.
Spolum returned to work after five years, but quit in 2006 because her commute was
stressful. D’Amato is an orthopedic surgeon employed at HealthPartners since 2005.
The parties separated in July 2010, and Spolum petitioned for legal separation.
Although the parties attempted reconciliation and suspended proceedings, they remained
living apart. When reconciliation failed, Spolum requested that the action be placed back
on the active case calendar. Trial began in August 2013. At the time, Spolum was 49
years old and D’Amato was 45 years old.
Spolum testified that since the parties’ separation she assumed that she would
return to work, but wanted maintenance payments until their son reached 18. Spolum
was unsure about her career aspirations. She is high-school educated with some college
and art-school experience. Spolum worked at a clothing boutique and as a yoga
instructor. She was interested in a sales position and a position with a chocolate
2
company, but nothing came of either. When the parties attempted reconciliation, Spolum
sought to open a chocolate shop, but this endeavor was also not successful.
There was testimony that Spolum was “brilliant and creative” with party planning
and that she had a talent for that kind of work. While Spolum agreed that she “would be
a great party planner,” she did not want that as a career because of the time commitment.
Spolum is interested in animal-welfare advocacy and is on the board of directors for an
animal-welfare organization. This interest led her to pursue educational courses, but she
was released from the program for lack of undergraduate credits. Spolum testified that
she hoped to establish a career as an animal-welfare advocate.
A vocational-rehabilitation consultant performed an assessment on Spolum and
testified that without additional training, Spolum could work in a position earning
between $10-12 an hour. She stated that Spolum could enroll in a two-year vocational
program, which she could attend on a part-time basis or complete online.
Spolum testified that after D’Amato was let go from a physician practice, he was
unable to secure employment in Minnesota. D’Amato applied to HealthPartners as a last
resort; if he was not extended an offer, he would broaden his search out of state. Spolum
testified that she invited the head of the HealthPartners group to their home to advocate
reconsideration of the group’s rejection of D’Amato, and D’Amato was offered a position
following her efforts.
D’Amato testified that around 2004 or 2005, he began a second job as an
independent medical-legal consultant at EvaluMed. D’Amato worked approximately 20
hours a week for EvaluMed. Near the end of 2011, D’Amato quit his second job for
3
several reasons, primarily because it was time consuming. It was also unhealthy and the
stress and anxiety contributed to problems in the marriage. After leaving EvaluMed,
D’Amato’s health improved.
At HealthPartners, D’Amato works 50 hours a week on average, not including
committees, meetings, and on-call duties. D’Amato testified to earnings of
approximately $800,000 in 2013. He testified that he was seeing fewer patients due in
part to patients being diverted to the new physicians who are building practices.
Denis McCarren, the director of orthopedics and neurosciences for HealthPartners,
testified regarding HealthPartners’ “production” compensation system. He explained that
every year, each physician creates a draw—a standard amount paid every month. If a
physician sets a draw and has a deficit at the end of the year, the physician has to pay the
amount back. McCarren adjusts physicians’ draws throughout the year to avoid deficits.
McCarren testified that the trend in healthcare has been a decrease in patient
volume and surgical cases. He stated that D’Amato’s schedules are not at capacity due to
this trend. As a result, D’Amato’s income has been less each year since 2011.
McCarren predicted the continuance of this trend.
D’Amato testified that, based on discussions at HealthPartners, his projected
salary for 2014 was approximately $750,000. But he proposed that for spousal-
maintenance purposes, the district court use his income of $800,000 because that is what
he would earn in 2013. D’Amato asserted that the trend would continue to decrease his
yearly income, but because he had no proof, he believed $800,000 was reasonable.
4
D’Amato believed that he should pay spousal maintenance for four years to allow
Spolum time to acquire employment or training.
The district court entered its original judgment and decree on December 9, 2013.
D’Amato moved for amended findings, conclusions of law, and judgment and decree. In
June 2014, the district court issued an amended judgment and decree.1
In its original judgment, the district court set D’Amato’s income at $950,538.
D’Amato argued that there was no evidence supporting this figure, rather, all of the
evidence showed that his income is $800,000. But the district court did not modify
D’Amato’s income. The court, instead of relying on D’Amato’s draw of $800,000,
decided to average the last three years of D’Amato’s earnings from HealthPartners. And,
despite finding that D’Amato quit his second job “to create a more balanced life,” the
court stated that it would consider D’Amato’s income from EvaluMed in the event the
court overestimated D’Amato’s income because D’Amato is “better positioned to correct
the error by pursuing a myriad of options available to him and not to [Spolum].”
In its original judgment, the district court set Spolum’s monthly discretionary
spending at $9,943. D’Amato argued that the district court erred by giving Spolum a
higher discretionary budget than she requested. The district court modified Spolum’s
discretionary spending to $8,343. It reached this figure by relying on D’Amato’s
submission of historic patterns in discretionary spending. In 2009, each party’s monthly
discretionary spending was $8,343. The court explained that “the marital standard of
1
D’Amato sought review of the original judgment and decree and the amended judgment
and decree (A14-1335); this appeal was stayed pending appellate family law mediation.
5
living is best reflected by allocating the highest level of discretionary spending for the
period’s history.”
In its original judgment, the district court ordered D’Amato to pay Spolum
$18,225 per month in permanent spousal maintenance. D’Amato argued that the district
court made findings supporting Spolum’s earning capacity and ability to reenter the
workforce, but ignored those facts in ordering permanent maintenance.
The district court found that Spolum is “49 years old and in good physical and
emotional health.” The court was “impressed with [Spolum] during trial” and heard “no
reason why she could not find a successful career” because she is “healthy, intelligent,
articulate, creative, and capable.” The district court found that Spolum is immediately
employable in retail, but gave her one year to identify an employment plan and assigned
incremental income goals. The district court stated that it “made findings regarding
[Spolum’s] ability to earn for purposes of assisting the parties and the court should there
be future motions to modify maintenance or consider cost of living increases.”
The permanent-spousal-maintenance award was based on: (1) the high marital
standard of living, (2) the length of the marriage, (3) the fact that Spolum will never be
able to support herself in a manner approximating the marital standard of living, and
(4) the fact that D’Amato’s income would not decrease. The district court noted that
Spolum will receive approximately $1.2 million in marital assets, including the parties’
Caribbean home, “Seacliff,” and artwork valued at $110,000, but concluded that these
6
assets are unavailable to her until retirement. The district court ordered D’Amato to pay
permanent maintenance in the amount of $14,072 per month.2
DECISION
Permanent spousal maintenance
D’Amato first argues that the district court abused its discretion in awarding
Spolum permanent maintenance. We review a district court’s spousal-maintenance
award for an abuse of discretion, reversing if the district court’s findings are unsupported
by the record or if it misapplied the law. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn.
1997).
“Findings of fact concerning spousal maintenance must be upheld unless they are
clearly erroneous.” Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). A
finding of fact is clearly erroneous when it is “against logic and the facts on record.” Putz
v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); Kampf v. Kampf, 732 N.W.2d 630, 633
(Minn. App. 2007) (stating that “[f]indings of fact are clearly erroneous when they are
manifestly contrary to the weight of the evidence or not reasonably supported by the
evidence as a whole”) (quotation omitted)), review denied (Minn. Aug. 21, 2007);
Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (stating that a finding
is clearly erroneous if this court is “left with the definite and firm conviction that a
mistake has been made”) (quotation omitted)). This court reviews questions of law
2
D’Amato appealed the second amended judgment and decree entered on August 6, 2014
(A14-1720). The two appeals were consolidated for judicial economy.
7
related to spousal maintenance de novo. Melius v. Melius, 765 N.W.2d 411, 414 (Minn.
App. 2009).
A district court may award spousal maintenance if the requesting spouse (1) lacks
sufficient property, including allocated marital property, to provide for reasonable needs
considering the marital standard of living or (2) is unable to provide self-support through
appropriate employment, in light of the marital standard of living. Minn. Stat. § 518.552,
subd. 1 (2014). In determining an appropriate spousal-maintenance award, a district
court must consider relevant factors resulting in a “just” award. Id., subd. 2 (2014).
Factors include the (1) financial resources of the requesting party, including marital
property apportioned to that party, and the party’s ability to meet needs independently;
(2) time necessary to become self-supporting; (3) marital standard of living; (4) duration
of the marriage; (5) loss of employment benefits and opportunities foregone by the
requesting party; (6) age, physical condition, and emotional condition of the requesting
party; (7) ability of the obligor to meet the needs of both parties; and (8) contribution of
each party in the acquisition, preservation, and depreciation of marital property. Id.
D’Amato asserts that an analysis of these factors does not support an award of
permanent maintenance because the district court placed an “overriding emphasis” on the
marital standard of living, which is merely one factor.
Financial resources
The district court found that Spolum worked minimally since 2006, and concluded
that she, therefore, has “few independent sources of income.” But the district court also
found that Spolum was awarded approximately $1.2 million in marital assets as part of
8
the property division. While the district court found that the “bulk of these assets will be
unavailable to her until retirement and cannot support her monthly needs,” this finding is
unsupported by the record.
Only $288,913 of Spolum’s award is in the form of retirement assets. Spolum
was awarded Seacliff valued at over $1 million, based on her request despite D’Amato’s
proposal to sell the property, and artwork valued at $110,000. She is also entitled to an
equal share of the profits from the sale of the marital home. Additionally, Spolum
receives rental payments from Seacliff. She testified that she takes as many rentals as
possible and uses the property for personal use only 70 days a year. None of these assets
are available only upon retirement, and all may be sold at Spolum’s discretion. The
district court found as much, stating, “[u]ltimately, it will be up to [Spolum] to decide
whether the expense of [Seacliff] will continue to make financial sense for her.” The
district court’s finding regarding Spolum’s financial resources is clearly erroneous.
Time necessary to become self-supporting
The district court found that Spolum is immediately employable in retail. The
district court acknowledged that Spolum is “healthy, intelligent, articulate, creative and
capable,” and found “no reason why she could not find a successful career.” The district
court gave Spolum one year to identify a plan and assigned potential income to her, but
provided no means to review Spolum’s progress, and stated that it “made findings
regarding [Spolum’s] ability to earn for purposes of assisting the parties and the court
should there be future motions to modify maintenance or consider cost of living
increases.” The record supports the district court’s findings that Spolum is immediately
9
employable and that there is no reason why she cannot find a successful career. But the
district court abused its discretion by assigning potential income to Spolum, but failing to
provide for review of her progress.
The district court’s findings support an order for rehabilitative maintenance, not
permanent maintenance. For example, in Hall v. Hall, this court concluded that the
district court did not abuse its discretion by awarding rehabilitative maintenance when the
wife was 39 years old at the time of the dissolution; had been married 18 years; had a
high-school education but desired to obtain a four-year degree; had worked sporadically
during the marriage; and received a car, half of her spouse’s pension, and a half interest
in the homestead in the property distribution. 417 N.W.2d 300, 301, 303 (Minn. App.
1988). Similarly, Spolum is high-school educated; worked part-time jobs during the
marriage; desires a career, albeit she is uncertain of her employment future; and received
substantial marital assets.
Marital standard of living
The district court found that the parties enjoyed a high marital standard of living.
“The purpose of a maintenance award is to allow the recipient and the obligor to have a
standard of living that approximates the marital standard of living, as closely as is
equitable under the circumstances.” Peterka v. Peterka, 675 N.W.2d 353, 358 (Minn.
App. 2004).
In Chamberlain v. Chamberlain, this court concluded that the district court
properly considered “the long-standing affluent lifestyle of the parties” in affirming the
permanent-maintenance award. 615 N.W.2d 405, 412 (Minn. App. 2000), review denied
10
(Minn. Oct. 25, 2000). But in Chamberlain, while the district court considered the
marital standard of living, it determined that the parties’ standard of living was beyond
their means and reduced some of the wife’s claimed expenses and considered “the marital
standard of living that would have been within the parties’ means.” Id. at 410. The
district court stated that the wife needed “spousal maintenance in order [to] duplicate a
standard of living that . . . represents a substantial reduction from the standard of living
born of deficit spending.” Id. (emphasis added.) This court stated that while the district
court did not abuse its discretion in awarding permanent maintenance to the wife who
was 50 years old and had been in a 20-year marriage, that a different result was
supportable and that it might have reached a different result. Id. at 407, 412.
Here, Spolum agreed that the marital standard of living was “excessive and
unnecessary” and was a “mistake.” Unlike the district court in Chamberlain, the district
court here did not consider the parties’ marital standard of living within their means, nor
were the parties in a 20-year marriage. Additionally, unlike Spolum, the wife in
Chamberlain contributed to the parties’ combined wealth through her own career. Id. at
407.
Further, as D’Amato points out, the district court considered the standard of living
over the course of the marriage when D’Amato worked two jobs. The district court
found that D’Amato quit the second job in order to create a “more balanced life,” and this
finding is supported by the record. It seems unreasonable, then, for the district court to
consider a lifestyle that included income from a second job that contributed an average of
approximately $200,000 per year.
11
Duration of the marriage
The district court found that the parties were married 12 years. But Spolum
petitioned for legal separation in October 2010; thus, the parties lived together as husband
and wife for nine years. In Perlstein v. Perlstein, the district court awarded the wife
permanent maintenance following dissolution of a nine-year marriage. 356 N.W.2d 383,
384 (Minn. App. 1984). But in that case, the wife was 61 years old, had been
unemployed for more than 30 years, had no employable skills, had an eleventh-grade
education, and suffered from medical disabilities. Id. Here, the duration of the marriage
and the circumstances of the parties support an award of temporary maintenance.
Loss of employment benefits and opportunities
The district court found that Spolum “acquired minimal retirement assets in her
name alone. The loss of earnings, earning potential, seniority, and retirement benefits are
substantial.” The court then found that Spolum had “acquired approximately $1 million
in retirement, real estate and investment assets.”
The record shows that Spolum initially went on leave from her position as a flight
attendant in order to plan the parties’ wedding. Prior to the wedding, Spolum earned
approximately $46,000 annually. She owned no property and had very little retirement
savings. She was awarded her pension during asset allocation—it is listed as “[n]ot
valued.” Other than leaving a position in which she earned $46,000 annually, there is no
evidence in the record that Spolum’s loss is “substantial.”
12
Age, physical condition, and emotional condition
The district court found that Spolum is 49 years old and in good health. At most,
this finding supports an award of rehabilitative maintenance. See Maiers v. Maiers, 775
N.W.2d 666, 669 (Minn. App. 2009) (affirming award of temporary maintenance when
the receiving spouse, a trained and experienced flight attendant, could obtain additional
training hours as a flight attendant, and was “capable of obtaining additional vocational
training in order to become self-sufficient”).
Obligor’s ability to meet the needs of both parties
D’Amato does not dispute Spolum’s need for temporary maintenance or that he
has the ability to pay her maintenance.
Contribution in acquisition, preservation, and depreciation of marital property
The district court found that D’Amato worked long hours and that Spolum
primarily cared for the parties’ son. The district court found that Spolum “persuaded
HealthPartners to hire [D’Amato],” after she took the “extraordinary step of inviting the
person responsible for the hiring decision into their home.” While Spolum testified that
she invited the head of the HealthPartners group to their home to advocate D’Amato’s
hiring, she also testified that D’Amato was prepared to pursue a career out of state if not
hired by HealthPartners. Thus, Spolum’s efforts in assisting D’Amato in securing
employment was done to keep the family in Minnesota; it seems that D’Amato would
have been amenable to relocating—he worked in New York and Ohio before Minnesota.
Moreover, even if Spolum assisted in D’Amato’s hiring, he maintained employment with
13
HealthPartners for several years. Thus, the district court credited Spolum for D’Amato’s
employment, but failed to recognize that D’Amato maintained that employment.
Additionally, the district court failed to consider Spolum’s dubious use of assets.
When Spolum filed for legal separation, she transferred $125,000 from the parties’ joint
account into her own account. A court order required Spolum to “retain intact the
$125,000,” but she failed to do so, reducing the balance to a little over $40,000. The
district court declined to conclude that Spolum violated her fiduciary duty to preserve this
marital asset, finding that she used the money to start the chocolate shop and in her
position on the charitable board, which is “part of her marketability” for a possible career.
Spolum admitted that after signing the agreement to keep the funds intact, she
used approximately $85,000—she paid her required contribution to charitable
organizations, she paid her business partner in the chocolate shop, and she paid
approximately $25,000 in legal fees. The record shows that Spolum failed to preserve
this marital asset.
First, Spolum violated a court order. Second, Spolum being on a board for a
charitable organization is not essential to her marketability because her interest in a
career in animal-welfare advocacy requires higher education for which she lacks
undergraduate credits. Her position on a board is not a substitute for her lack of
education. Third, Spolum used funds to pay her legal fees for the dissolution. Finally,
Spolum testified that she intended to pay this “loan” back. The record does not support
the district court finding that Spolum had no duty to preserve this marital asset.
14
Applying the evidence to the relevant factors, the district court clearly erred in
several findings supporting its conclusion that Spolum is entitled to permanent spousal
maintenance and abused its discretion in awarding Spolum permanent spousal
maintenance.
Maintenance amount
D’Amato argues that the district court abused its discretion in ordering him to pay
$14,072 per month in spousal maintenance, specifically challenging the district court’s
findings regarding Spolum’s discretionary spending. While factual findings regarding
monthly expenses in a spousal-maintenance calculation “must be upheld unless clearly
erroneous,” McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989), “[a]
[district] court’s calculation of living expenses must be supported by the evidence.” Rask
v. Rask, 445 N.W.2d 849, 854 (Minn. App. 1989).
“Because maintenance is awarded to meet need, maintenance depends on a
showing of need.” Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989); see also Lee v. Lee,
775 N.W.2d 631, 642 (Minn. 2009) (stating that the district court awarded wife more
maintenance than she reasonably needed to support herself and instructing the district
court on remand to make findings that support the current award or a different award).
The district court set Spolum’s discretionary spending at $8,343 because the
“marital standard of living is best reflected by allocating the highest level of discretionary
15
spending for the period’s history.” D’Amato argues that $8,343 exceeds the amount
Spolum requested based on her need, which is approximately $6,0003 a month.
The record does not support the district court’s decision to use a discretionary
spending figure of $8,343 from 2009. First, the amount is in excess of what Spolum
needs. Second, the district court stated that it chose this amount from 2009 because it
“best reflected” the marital standard of living, but Spolum admitted that the marital
standard of living was “excessive,” “unnecessary,” and a “mistake.”
Third, the district court chose this amount to reflect the marital standard of living,
yet accepted D’Amato’s proposed budget for himself. The district court assigned $8,343
in discretionary spending to Spolum and not D’Amato, despite the fact that his
discretionary spending in 2009 was also $8,343. D’Amato proposed that his
discretionary spending was approximately $5,350. The court accepted this budget
because it was “not disputed by the parties.” However, Spolum did challenge D’Amato’s
budget for travel and food, believing that the numbers were too low.
Fourth, in 2009, the couple was spending money together, including funding their
“lavish” and “extravagant” parties and fundraisers, and paying for expensive dinners out
with friends and neighbors. Spolum testified that the couple enjoyed “hosting great
part[ies]” together and that this was one thing that drew them together. The couples’
3
Spolum’s monthly discretionary-spending budget included: food ($2,047.83),
clothing/shoes ($301.47), laundry ($3.55), transportation ($1,000.08), car insurance
($134.13), entertainment ($92.18), vacations ($658.50), printed material ($8.26), personal
allowances ($248.33), pet expenses ($352.73), gifts ($241.22), charitable contributions
($768.66), cell phone ($113.47), and cash withdrawals ($50.45), which totals
approximately $6,020.
16
spending also included family vacations. Spolum testified that they would take great
family vacations and that their love for travel was a commonality and something that
brought them together. There is no evidence that either party held lavish affairs after
their separation, treated their friends and neighbors to expensive dinners, or continued
family vacations.
Fifth, D’Amato’s income in 2009 was greater than in 2013. D’Amato was
working at EvaluMed, which contributed $230,000 to his income. His income in 2009
was $1,280,904 and his income for 2013 was $800,000. His income in 2009 was
approximately $330,000 greater than the $950,538 income that the district court assigned
D’Amato. With a higher income comes the benefit of increased discretionary spending.
The district court abused its discretion in setting Spolum’s discretionary spending.
D’Amato also challenges the district court’s award to Spolum of $167 per month
for additional travel when travel is included in discretionary spending and because the
$167 is for housing while she is in the Caribbean. There is no support in the record for
this allocation. Spolum does not need an allocation for housing when she owns a home
in the Caribbean.
Income
Finally, D’Amato argues that the district court clearly erred in determining that
his annual income is $950,838. The district court averaged D’Amato’s income from
HealthPartners for the last three years (2010-12) because it provided the best estimate of
his earning capacity. D’Amato argues that the record shows that his income in 2013 is
$800,000. “A district court’s determination of income for maintenance purposes is a
17
finding of fact and is not set aside unless clearly erroneous.” Peterka, 675 N.W.2d at 357.
A “maintenance obligation should [be] calculated based upon [the obligor’s] income at
the time of trial.” Carrick v. Carrick, 560 N.W.2d 407, 412 (Minn. App. 1997).
The district court declined to consider D’Amato’s income in 2013, despite the fact
that the record shows that D’Amato’s draw for 2013 was $800,000 and D’Amato testified
that he was on track to make approximately $800,000 in 2013. D’Amato submitted
paystubs for 2013 that showed his gross pay for a two-week period was $30,995, which
results in annual income of $805,870. The district court found that “two paystubs show
gross pay of $30,995 for a two-week period. This amount times 26 pay periods results in
annual income of $805,870 which is consistent with [D’Amato’s] annual draw.” But the
district court also found that the year-to-date gross pay on the paystubs ($517,591)
showed that D’Amato was “on pace to earn $1,000,000.” The district court decided to do
an average of income figures from 2010-12 because it was “unable to reconcile the
difference in annual income calculations.” But there is approximately $64,000 in bonus
payments from previous years included in the year-to-date figure. D’Amato explained
that it was “money on the production [he] had from the previous year.”
Additionally, the record shows that D’Amato’s income was declining, which was
not due to anything he did. D’Amato saw fewer patients due in part to patients being
diverted to new physicians who were building their practices. His schedules were not at
capacity due to the downward trend in patient volume and surgical cases. McCarren
stated that D’Amato’s income has been less each year since 2011, and predicted
continuation of the trend.
18
Finally, the district court determined that if it overstated D’Amato’s income,
D’Amato was in a better positon “to correct the error by pursuing a myriad of options
available to him and not to [Spolum].” This would likely require D’Amato to go back to
consulting work with EvaluMed or the like. But D’Amato is already working
approximately 50 hours a week at HealthPartners, not including committees, meetings,
and on-call duties. And the district court found credible that D’Amato quit his second job
in order to have a more balanced life. It seems unreasonable for the district court to
require D’Amato to work a second job in order to satisfy a maintenance award when
Spolum is not required to work even one job to attain self-support. Because the record
does not support the district court’s calculation of D’Amato’s income at $950,538,4 the
district court abused its discretion.
We reverse and remand to the district court to recalculate Spolum’s discretionary
spending and D’Amato’s income in a manner consistent with this opinion. We also
reverse the district court’s award of permanent spousal maintenance, and remand for a
determination of the appropriate level of maintenance in conformity with this opinion.
The district court, in its discretion, may reopen the record if doing so assists in
determining the amount and duration of the maintenance award.
Reversed and remanded.
4
If the district court decided to average income figures, it would have been more
appropriate to have had averaged the current year (2013) and the last two years, resulting
in an average income of $892,548.
19 | 01-03-2023 | 08-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539922/ | 06/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0543
No. DA 19-0543
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT LEWIS WING,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including July 15, 2020, within which to prepare, file,
and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
June 8 2020 | 01-03-2023 | 06-08-2020 |