url
stringlengths 54
59
| text
stringlengths 0
2.08M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/3436559/ | In his original petition plaintiff alleged that the defendant was reckless in the operation of his automobile at the time in question in several particulars, not including intoxication. In his first amendment to the petition, he alleged that the injuries were "approximately caused" as a result of the defendant being under the influence of intoxicating liquor. By a second amendment, he struck the allegation of the first amendment and in substitution alleged that the defendant's "being under the influence of intoxicating liquor was the proximate cause of the damage and injury."
In the substituted answer of defendant, division one thereof contained certain admissions and a general denial. In division two, it was alleged that the injuries to the intestate, DeRuther, were caused by the negligence of Kenneth Jensen, the driver of the other colliding automobile, and not by any negligence, recklessness, or intoxication of defendant. In division three, defendant alleged that a number of hours before the fatal collision he and DeRuther had partaken of some intoxicating liquor at the same times and to the same extent, and that DeRuther, with such knowledge, voluntarily became and remained the guest of defendant in his automobile until the accident, and that if there was any danger involved in being a passenger in defendant's automobile, at the time and place, because of the fact that defendant had drunk some liquor, DeRuther voluntarily acquiesced therein, and assumed the risk of a resulting accident.
It was upon these issues that the case was tried. With little, if anything, to the contrary, it appears from the record that the defendant, a young man in his early twenties, living with his parents, a few miles outside of Knoxville, was employed at a Sinclair service station in the town. He had worked at the station until noon on Christmas Day, 1939, and then went to his home in the country where he remained until about 4:30 o'clock that afternoon. At that time, a young man, whose name was Gee, about 22 years of age, telephoned him and asked if he would not come in with his automobile and take Gee and *Page 1161
DeRuther to a dance at Oskaloosa. Defendant met the other boys at the appointed place and after each had drunk a 10c glass of beer, the three left for the dance with defendant driving. No liquor was drunk on the way to Oskaloosa. Defendant had with him a pint of whiskey, which he had bought the day before, but it was not opened until they reached the dance hall. The carburetor of defendant's automobile had not been working well for some days, and because thereof the speed limit of the car was not in excess of 40 miles an hour. This speed was not exceeded in going to Oskaloosa. They reached Oskaloosa about 6:00 o'clock and from that time until about 8:00 o'clock that evening the three young men — DeRuther was about 23 years old — were in a restaurant having dinner. Unaccompanied by any ladies, they then went to the dance hall. Shortly after arriving there, the pint of whiskey was opened, and the three, with an attendant employed at the dance hall, each drank about two ounces of whiskey by using it to "spike" Coca Cola. Gee then put the whiskey bottle, with what little whiskey was left in it, in his pocket, and defendant saw no more of it. They danced until an intermission for the orchestra about 10:30 o'clock, and then went to the restaurant where they had dined. Two young lady acquaintances of Knoxville were sitting in a booth and they joined the young men, and a quart bottle of beer was ordered and drunk by the five. We have now stated the full extent of the drinking of intoxicating liquor by these young people, as shown by the record. At each time when they drank, DeRuther and defendant sat beside each other in the same booth. The boys returned to the dance hall, and a little later the girls joined them. About midnight, one of the girls suggested going to a tavern or dance hall about seven or eight miles north of Oskaloosa, on Primary Highway 63. DeRuther and Gee, who had paired off with the two girls, asked defendant if he would not take them out to this place. Accompanied by his four companions, defendant drove out to this "night spot," only to find it closed. There was a membership club on the same road back to Oskaloosa, and about four miles north of the city. One of the girls thought she might get the group admitted to this place, for a dance. It was located not far west of No. 63, but the road to it was hilly and not hard surfaced, and had some *Page 1162
sharp curves and turns. The two boys and the girls secured admittance, but the defendant, having no lady companion, was not permitted to go in. He waited outside about 15 minutes and then asked the doorkeeper to tell his companions to come on, as he wished to be on the way home. He waited a few minutes longer and then was permitted to enter to get his friends. Shortly thereafter, they all came out and got in the car. DeRuther and his companion in the back seat, and Gee and his lady in the front seat with the defendant, who was driving. He drove back to No. 63 and obeyed the stop sign by halting his car before driving onto the pavement. In all of his driving that night, up to this time, there is no evidence that he had any traffic difficulties, or that there was anything careless or contrary to the law of the road in his operation of the car. He turned south on No. 63 and proceeded up a long hill on the right, or west side, at a speed of not to exceed 30 miles an hour. The defendant and Gee testified that as they reached the top of the hill, they saw the lights of an approaching car in the east lane of the pavement a few hundred yards to the south, and that as it approached to within ten or twelve feet of them it suddenly turned across the black lines into the west lane where the defendant's car was traveling and crashed into the left front part of the car. Gee was the least injured. Defendant was seriously injured and covered with blood from severe cuts and bruises about the head and chest, and remembered nothing more until several hours later in the hospital, to which he and Gee were taken by the deputy sheriff. DeRuther and the two young ladies apparently died at the time of, or shortly after, the collision.
The other car was the Jensen car. It was driven by Jensen. In the front seat with him were a man and his wife. In the rear seat was their baby. There were no other occupants. The injuries received by them are not shown in the record. Jensen was the only one of them who testified. In an affidavit of plaintiff, attached to a motion for continuance, it was stated that if the married lady were present as a witness she would testify that the defendant's car approached the Jensen car, without lights dimmed, on the wrong side of the road, and was at least 5 feet east of the center of the road when the cars collided. *Page 1163
Jensen testified that he saw defendant's car approaching from the north on "my side of the road;" that he (Jensen) was driving at 40 or 45 miles an hour on the right side of the road, and that all he knew was that the cars came together. He was not asked, nor did he testify, as to the speed of the defendant's car. The only testimony as to the speed of defendant's car is that of the defendant and Gee that it did not exceed 30 miles an hour. We have set out all of the evidence as to the operation of both cars, at and just before the collision. Jensen testified that he and his party spent considerable time at a drinking club in Ottumwa before leaving for Hedrick at midnight preparatory to their trip north on No. 63.
Other witnesses who came upon the scene shortly after the collision testified as to the position of the cars. After colliding, the rear end of each car swung outward and forward about 90 degrees and the cars came to rest facing each other at about right angles to their paths of travel before the collision. The front of the Jensen car was near the east edge of the paving on the shoulder. The front of the defendant's car was a little east of the black lines, leaving sufficient space between them for traffic. The entire front, radiator and crankcase, and front wheels of the Jensen car were smashed and broken. The left front corner and left front wheel and radiator of the defendant's car were crushed and driven back. The breaking of the left front wheel of defendant's car allowed the axle to drop to the pavement. The spring on that side was fastened to the axle by clamps bolted to the axle. These bolts extended below the axle. Some distance west of the center line of the pavement, in the west slab, were three freshly made holes. Pictures were taken of them. Evidence showed that the bolts on the clamp fitted exactly into these holes.
Without reviewing the evidence on the issue of intoxication, we have no hesitancy in saying that it fully supports the finding of the jury that defendant was not under the influence of intoxicating liquor. No witness who saw him before the collision testified that he gave any appearance of intoxication. Only the sheriff and his deputy, who did not see the defendant until he was delirious and semi-conscious front his injuries, thought that he was under the influence of intoxicating liquor. *Page 1164
The court, on its own motion, submitted three special interrogatories to the jury, to be answered by "Yes" or "No." No. 1 was:
"Do you find that the defendant, Robert Momyer, was reckless in the operation of his automobile at the time and place of the accident under investigation? ANSWER No. * * *
"No. 2. Do you find that the defendant, * * * was under the influence of intoxicating liquors at the time and place of the accident under investigation? ANSWER No. * * *
"No. 3. If you should find that the defendant, * * *, was under the influence of intoxicating liquors at the time and place of the accident under investigation, do you find that the deceased, Melvin DeRuther, assumed the risk of riding with him, as such assumption of risk is defined in these instructions? ANSWER Yes."
The record fully justifies the answers. They confirm the general verdict for defendant. It was necessary that plaintiff establish one of the two propositions involved in the first two interrogatories. The jury answered both adversely to his contention. The third involved an affirmative defense pleaded by defendant. The answer established the defense.
[1] Appellant complains that the words "accident under investigation" in each interrogatory improperly directed the attention of the jury to the criminal investigation against defendant by the Grand Jury. We see no foundation for the contention. The words clearly direct the jury to the investigation being conducted in the civil trial then being had. Calling the jury's attention to a criminal prosecution against the defendant growing out of the collision could hardly prejudice plaintiff's case. Whatever the crime was for which he was indicted and tried, we were told in oral argument that a jury acquitted him of its commission.
Appellant assigns error in the giving of several instructions. No requested instructions were offered by either side. We have carefully considered each assigned error. It is our conclusion that none of the instructions complained of are erroneous. In view of the evidence, and of the entire record, *Page 1165
and of the answers to the special interrogatories, none of the errors assigned could have been prejudicial to appellant.
[2] I. Appellant complains that because assumption of risk was pleaded only to the issue of intoxication, and not to the issue of reckless operation of the car, Instruction 12 was erroneous, since it told the jury that plaintiff could not recover if they found this defense established. Appellee maintains that the defense covered both issues. We are constrained to disagree with the appellee in this, but we believe there is no error. Appellee moved for a directed verdict. In overruling the motion, the court said: "I am going to submit this case to the jury. I realize it is a very close question as to whether or not there is evidence of recklessness in this case."
The only evidence of reckless operation is the testimony of Jensen that defendant drove his car over onto the east lane of the pavement and collided with his car, and the unsworn statement of the lady in his car to the same effect. Accepting this evidence as true, and construing the entire record most favorably to appellant, we cannot rightfully say that the issue of reckless operation of defendant's automobile was established. That issue should not have been submitted to the jury. There was, therefore, no error in Instruction 12.
[3] II. Appellant complains because in Instruction 5 the court said: "Neither can recklessness be determined by the results of an accident; that is, the fact that the results of an accident were serious is not of itself any evidence of recklessness." The appellant urges that the language forbids the jury from considering the physical facts involved as a result of the accident. The word "results" covers a broad field and perhaps leaves the meaning intended by the court in the instruction open to different interpretations. The court did not mean that the extent or character of the physical damage to the cars, or the surroundings, or the physical facts evident from the collision were never any evidence of recklessness, particularly when considered with other matters shown. In another instruction, the court told the jury that these matters might be considered. It is our thought that the court meant only to caution the jury that the serious consequences of the collision in the loss of three lives and serious injuries to others should not have weight with *Page 1166
them in determining the issue of recklessness. It is our judgment that this is a fair construction to put upon the instruction, and that the jury was not misled to the prejudice of the plaintiff.
[4] III. It is also insisted that the court erred in Instruction 6 in telling the jury that the burden was upon plaintiff to establish that he was administrator of the estate of the decedent. Plaintiff made proper allegation that he was the administrator. The defendant neither admitted, nor denied the allegation. Under sections 11207 and 11208, Code of 1939, a denial of the representative capacity alleged to be effective must specifically set out the grounds supporting the denial. See Jordison v. Jordison Bros., 215 Iowa 938, 247 N.W. 491; Richards v. Hellen Son, 153 Iowa 66, 73, 133 N.W. 393; University of Chicago v. Emmert, 108 Iowa 500, 503, 79 N.W. 285; Schalk v. Smith, 224 Iowa 904, 910, 277 N.W. 303. Since there was no such denial, the plaintiff could have rested the issue on his pleading, but he established the allegation by testimony of plaintiff and the deputy clerk of the court. Under the circumstances, the court should not have instructed as it did, but under the whole record and in view of the answers to the interrogatories, any error was not prejudicial.
[5] IV. Appellant urges error in Instruction 8 because in the definition of recklessness, the court said that "by the term reckless operation of a motor vehicle, * * * is meant the operation of the same in such manner as there can be implied therefrom that the defendant consciously operated his automobile with a total indifference as to whether the deceased or other persons might be injured", etc. (Italics supplied.) The claim is made that in using the word "consciously" the jury would be led to believe that the defendant's conduct must have been wanton or wilful to entitle plaintiff to recover. We think the court used the word in the sense of "knowingly," and that the jury so understood it.
[6, 7] V. Appellant complains that in Instruction 9 the court erred in not defining what is meant by having "a car under control." While this court has on several occasions defined the phrase, we think there was no occasion for it in this case, under the facts as shown. More often than otherwise, it *Page 1167
refers to speed. Speed was not an element in this case. We have said that a car is under control if it is moving at such a rate of speed and the driver has the mechanism and power under such control that it can be brought to a stop with a reasonable degree of celerity. Carruthers v. Campbell, 195 Iowa 390, 392,192 N.W. 138, 28 A.L.R. 949; Carlson v. Meusberger, 200 Iowa 65, 76,204 N.W. 432; Altfilisch v. Wessel, 208 Iowa 361, 225 N.W. 862; Johnston v. Johnson, 225 Iowa 77, 87, 279 N.W. 139, 118 A.L.R. 233. As said in the last cited case, the word "control" would naturally be understood in its practical and ordinary sense and could not well have been misunderstood by the jury. In Altfilisch v. Wessel, supra, the term "under control" was not defined by the court, but in the absence of a request to define it, the court held that there was no error in not doing so. Johnston v. Johnson, supra.
[8] VI. In Instruction 10 the court said that a person was under the influence of intoxicating liquors when by reason of the use thereof his faculties have been overcome or affected, and he is unable to exercise proper control over his actions, or his judgment is impaired. Appellant complains of the use of the word "overcome" as placing too heavy a burden upon the plaintiff, since he was not required to show that defendant was overcome with intoxicating liquor. The objection is without merit, as such is not the clear meaning of the instruction.
[9] VII. Error is assigned because of Instruction 11, in which the court instructed upon the pleaded defense that the proximate cause of the collision was the negligence of Jensen. Appellant insists that this singles out and gives undue emphasis to this phase of the case. We find no error in this. It was proper that the court instruct on this defense.
[10] VIII. In Instruction 13 the court instructed upon the various elements which the jury might consider in fixing the amount of damages. Appellant complains because certain elements were mentioned of which there was no evidence. If there was error, and we do not find that there was, it was without prejudice, since the jury found that plaintiff was not entitled to any damages.
We have passed upon every error assigned and are firmly *Page 1168
convinced that the judgment should be affirmed. It is so ordered. — Affirmed.
MILLER, C.J., and STIGER, SAGER, MITCHELL, OLIVER, GARFIELD, and HALE, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2900536/ | Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
MONARCH ASSETS, INC.,)
No. 08-03-00030-CV
)
Appellant,)
Appeal from
)
v.)
162nd District Court
)
CONCOURSE PROFESSIONAL SUITES, )
of Dallas County, Texas
INC.,)
)
(TC# DV02-02564-I)
Appellee.)
MEMORANDUM OPINION
This appeal is before the Court on its own motion for determination of whether it should be
dismissed for want of prosecution. Finding that the Appellant has failed to file a brief or respond
to our inquiry letter, we dismiss the appeal.
FACTS
On June 26, 2003, this Court informed Appellant by letter that its brief was past due and no
motion for extension of time had been filed. The Court advised Appellant that the appeal would be
dismissed unless it responded within ten days and provided a reason why the appeal should be
continued. See Tex.R.App.P. 38.8. No reply has been filed.
This Court possesses the authority to dismiss an appeal for want of prosecution when
appellant has failed to file its brief in the time prescribed, and gives no reasonable explanation for
such failure. Tex.R.App.P. 38.8(a)(1); Elizondo v. City of San Antonio, 975 S.W.2d 61, 63
(Tex.App.--San Antonio 1998, no writ). We have given notice of our intent to do so, requested a
response if a reasonable basis for failure to file the brief exists, and have received none. We see no
purpose that would be served by declining to dismiss this appeal at this stage of the proceedings.
Pursuant to Tex.R.App.P. 42.3(c) and 38.8(a)(1), we dismiss the appeal for want of prosecution.
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/2986874/ | Order filed, May 16, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00309-CV
____________
ANGELA WILLIAMS, Appellant
V.
SHELL EXPLORATION AND PRODUCTION COMPANY - AMERICAS,
BRICE PETERSON, AND CARMIE CHATTERS, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2011-61948
ORDER
The reporter’s record in this case was due May 06, 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 Susan Leediker, 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/128662/ | 538 U.S. 959
DESERT PALACE, INC., DBA CAESARS PALACE HOTEL & CASINOv.COSTA.
No. 02-679.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. [Certiorari granted, 537 U. S. 1099.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument granted. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128766/ | 538 U.S. 967
DAVISv.UNITED STATES.
No. 02-9276.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 793. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1028852/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP HENRY BARFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (7:01-cr-00035-F-1; 7:04-cv-00142-F)
Submitted: April 21, 2009 Decided: May 11, 2009
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Phillip Henry Barfield, Appellant Pro Se. Rudolf A.
Renfer, Jr., Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Henry Barfield seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2008) 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 Barfield 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/3819548/ | The plaintiffs in error in this case were jointly tried under an information charging them with the theft of an engine of the value of $300, the personal property of Montgomery, Shaffer
Montgomery, and the jury convicted them, fixing the punishment of the defendant Lumpkins at imprisonment in the penitentiary for a term of one year, and of the defendant Cantrell *Page 143
at imprisonment in the penitentiary for a term of six months. From the judgments rendered on the verdicts they have appealed to this court, but no briefs in support of the assignments of error have been filed.
While the defendants are not represented in this court, we have carefully gone through the record.
The undisputed facts are that, on the date alleged, an engine owned by Montgomery, Shaffer Montgomery, was taken from their lease in Stephens county; it was hauled to Konawa by the defendant Cantrell on his truck; that Dr. C.H. Hellman purchased the engine from the defendant, Lumpkins, to be delivered on his lease near Konawa.
The defense urged by the defendant Lumpkins was that he had authority from a man named Brown to sell the engine for $200 and he was to receive a commission of $25; he testified that he told Brown that Dr. Hellman wanted to buy a secondhand engine, but would not pay over $200; that Brown said he and Joe Anderson, his partner, would sell and give a bill of sale of the engine; that they would hire Bill Cantrell to haul the engine to Konawa; that he went out on Cantrell's truck, and Brown and two other fellows followed in a Buick car; that they disconnected and loaded the engine; that he went with Cantrell on the truck to Konawa; that when they got there Mr. Osmun, acting for Dr. Hellman, said he thought $100 was too much to charge for hauling the engine; witness called Dr. Hellman over the phone, and the doctor told him he would arrange that when they returned; that when they returned to Duncan both were arrested.
As a witness in his own behalf, the defendant Cantrell testified that Sid Lumpkins told him that he had bought an engine for Dr. Hellman, and wanted him to *Page 144
haul it; that he went into the supply house and found that the engine weighed 4,000 pounds; that he came back and Lumpkins said that he had an order from Dr. Hellman authorizing Mr. Osmun to pay for the drayage; that he agreed to haul it, and drove out to the lease with Lumpkins; three other men were there and they loaded the engine on the truck and he hauled it over to Konawa, and Lumpkins went with him; that when it was unloaded Mr. Osmun asked him what the drayage was, and he told him that he was supposed to get $100; that his truck registered 110 miles; that he did not receive his pay, and when he returned to Duncan was arrested; that Lumpkins said that he was to receive $25 for selling the engine; that he was never before arrested.
As to the defendant Lumpkins, the verdict has ample support, and the record presents no error. As to the defendant Cantrell, we cannot say that the evidence is sufficient to sustain his conviction. No witness for the state connects him with the transactions leading up to the taking of the engine; his claim that he was acting in good faith, under the direction of his codefendant is not disputed, and it was not shown that he had personal knowledge as to the ownership of the engine. It also appears that the trial judge expressed a doubt as to the sufficiency of the evidence to support the verdict against this defendant.
After a careful examination of the record, we conclude that the evidence is insufficient to support the verdict and judgment of conviction against the defendant Bill Cantrell. The judgment as to him is accordingly reversed.
In our opinion the evidence on the part of the state was amply sufficient to sustain the verdict against the *Page 145
defendant Sid Lumpkins, and finding no prejudicial error, the judgment is affirmed.
BESSEY, P.J., and EDWARDS, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3238578/ | Petition of Frank M. Carter for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Carter v. State, 39 So.2d 297.
Writ denied.
BROWN, SIMPSON and STAKELY, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1028915/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY EZEKIEL BECKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00250-RJC-CH-10)
Submitted: May 21, 2009 Decided: May 28, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey Ezekiel Becks, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Ezekiel Becks appeals the district court’s
order denying his motion for a reduction of sentence pursuant to
18 U.S.C. § 3582(c) (2006). We have reviewed the record and
find no reversible error. See United States v. Hood, 556 F.3d
226, 232-33 (4th Cir. 2009). Accordingly, we affirm for the
reasons stated by the district court. United States v. Becks,
No. 3:04-cr-00250-RJC-CH-10 (W.D.N.C. Dec. 15, 2008). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/997781/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7278
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JACQUELYN M. KUBINSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Fayetteville. Malcolm J. Howard, Dis-
trict Judge. (CR-93-28-5, CA-97-944-5-H)
Submitted: January 5, 1999 Decided: February 10, 1999
Before WILKINS and NIEMEYER, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jacquelyn M. Kubinski, Appellant Pro Se. Robert Edward Skiver,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court’s order denying
her motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).
We have reviewed the record and the district court’s opinion and
find no reversible error. Accordingly, we deny a certificate of
appealability and dismiss the appeal on the reasoning of the dis-
trict court. United States v. Kubinski, No. CR-93-28-5; CA-97-944-
5-H (E.D.N.C. Aug. 6, 1998). Appellant’s motion for the appoint-
ment of counsel is denied. 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
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2907527/ | I.J. Moore v. Coday (C/R)
NO. 10-91-049-CV
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
          I. J. MOORE, JR.,
                                                                                            Relator
          v.
          HONORABLE BRYAN CODAY, OFFICIAL COURT
          REPORTER, 40TH DISTRICT COURT, ELLIS
          COUNTY, TEXAS,
                                                                                            Respondent
* * * * * * * * * * * * *
Original Proceeding
* * * * * * *
MEMORANDUM OPINION
* * * * * * *
          We granted leave to file the petition for writ of mandamus to compel the court reporter to
prepare the statement of facts in a criminal case pending in this court and set a hearing for April
25, 1991. On April 22, the statement of facts was received and the hearing was postponed so that
the attorneys could review the statement of facts.
          After review, the statement of facts was filed as of the date of its reception. We dismiss
this proceeding as moot.
                                                                                 PER CURIAM
Before Chief Justice Thomas,
          Justice Cummings and
          Justice Vance
Dismissed
Opinion delivered and filed July 11, 1991
Do not publish
appeal. The date
sentence was imposed was April 28, 2010. LeeÂs notice of appeal was filed on
October 6, 2010 and was thus untimely. See Tex. R. App. P. 26.2(a)(1) (providing that notice of appeal
must be filed within 30 days after date sentence imposed or 30 days after entry
of appealable order).
LeeÂs response complains of the trial
courtÂs delay in responding to his October 3, 2010 letter and his trial
attorneyÂs alleged ineffective assistance. We lack jurisdiction to address
these grounds and to grant an out-of-time appeal; that authority belongs
exclusively to the Court of Criminal Appeals through a writ of habeas corpus. See
Parr v. State, 206 S.W.3d 143, 144-45 (Tex. App.ÂWaco 2006, no pet.).Â
Because LeeÂs notice of appeal is untimely, we lack jurisdiction and dismiss
his appeal. LeeÂs motion for appointment of counsel and for a free record is
dismissed as moot.
Â
Â
REX
D. DAVIS
Justice
          Â
Â
Â
Before Chief
Justice Gray,
Justice
Davis, and
Justice
Scoggins
Appeal
dismissed; motion dismissed
as moot
Opinion
delivered and filed June 15, 2011
Do not publish
[CRPM]
Â
 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3445428/ | Affirming.
Charged with the crime of incest, appellant was found guilty, and sentenced to serve two years in the penitentiary. From the judgment, he appeals.
He relies upon three grounds for reversal: First, he was entitled to a peremptory instruction; secondly, the verdict is flagrantly against the evidence; thirdly, the admission of incompetent evidence.
For the commonwealth, Sherman Crumb testified that some time before the finding of the indictment herein, he not being specific as to the exact time, he saw the appellant and his daughter Sula in the field back of appellant's house engaged in sexual intercourse. Confronted by an affidavit signed with his mark after the finding of the indictment to the effect that he saw Sula engaged in sexual intercourse with some one, but it was not her father, Crumb testified that he could neither read nor write, that he had never told the person who wrote the affidavit what the affidavit now contains, and that it had never been read over to him before he signed it. He intimated that the appellant and his daughter were active in trying to prevent him from testifying in this case.
John L. Kirk testified that he saw appellant and his daughter Sula engaged in sexual intercourse in a berry patch. He fixed the time in August, 1927. This not being the act to which Crumb testified, and upon which the commonwealth relied for conviction, the court admonished the jury, in substance, that this evidence was admissible only as corroborative of the testimony offered to prove the particular offense charged in the indictment, if the jury believed it did so.
This evidence of Kirk is that which it is claimed was improperly admitted, but that it was admissible for the purpose stated by the court is well settled. Smith v. Commonwealth,109 Ky. 685, 60 S.W. 531, 22 Ky. Law Rep. 1349; Newsom v. Commonwealth, 145 Ky. 628, 140 S.W. 1042; McCreary v. Commonwealth, 158 Ky. 612, *Page 374 165 S.W. 981; Render v. Commonwealth, 206 Ky. 1,266 S.W. 914, and see Alford v. Commonwealth, 227 Ky. 732,13 S.W.2d 1026. Kirk testified that appellant's children Ollie and Leonard were present on the occasion about which he testified.
For the appellant, he and his daughter made a sweeping denial of all of the commonwealth's testimony. Ollie and Leonard testified that no such things occurred in the berry patch as testified to by Kirk. Appellant also introduced the justice of the peace who swore Crumb to the affidavit to which we have referred, and he testified that he read it over as written three times to Crumb before the latter signed it with his mark. The appellant admitted that Sula was his daughter, and she admitted to being the mother of five children, although unmarried. She was unable to designate with much certainty the respective fathers of these children.
From this resume of the evidence, it is plain that the question of appellant's guilt was one for the jury. They had a right to believe Crumb and his explanation of the affidavit as well as to believe Kirk and to disbelieve the witnesses of appellant, most of whom were quite interested. Nor can it be said, in view of these considerations, that the verdict was flagrantly against the evidence.
The judgment of the lower court is therefore affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1876743/ | 829 F. Supp. 1401 (1993)
Robert L. HALL, Plaintiff,
v.
Lawrence B. FLYNN, et al., Defendants.
No. 92-CV-834.
United States District Court, N.D. New York.
July 26, 1993.
Robert L. Hall, pro se.
Corp. Counsel for the City of Schenectady (L. John Van Norden, of counsel), Schenectady, NY, for defendants Schenectady Police, Charles M. Mills, Richard E. O'Conner, Christopher Mahar, James Bradshaw and William Siler.
Schenectady County Atty. (Robert A. DePaula, of counsel), Schenectady, NY, for defendants Schenectady County Sheriff Dept. and William W. Barnes.
Tobin & Dempf (John T. Mitchell, William H. Reynolds, of counsel), Albany, NY, for defendant N.Y. Telephone Co.
Breslin & Breslin (Michael G. Breslin, of counsel), Albany, NY, for defendants Capital Dist. Transp. Auth., Carmino Basile and William Sheldon.
Maynard, O'Connor & Smith (Christopher Dressler, of counsel), Albany, NY, for defendants Colonie Police and James W. Flater.
DECISION AND ORDER
McAVOY, Chief Judge.
I. FACTS
The court reviews a June 18, 1993 Report-Recommendation issued by Magistrate Judge Ralph W. Smith, Jr. recommending that plaintiff's complaint be dismissed in its entirety.
Plaintiff, a former employee of the New York State Department of Environmental Conservation, filed this civil rights complaint on July 1, 1992. By order of this court dated May 20, 1993 (the "Order"), a discovery and Rule 16 conference was scheduled for June 17, 1993 at 4:00 P.M. before Magistrate Judge Smith. The Order also required plaintiff to provide a copy of his motion to compel discovery to counsel for the City of Schenectady (the "City") by noon on June 10, 1993.
In the Order scheduling the conference, plaintiff was advised that his failure to appear could result in dismissal of his complaint. Furthermore, two separate defense counsel informed Magistrate Judge Smith *1402 that they had had telephone discussions with plaintiff regarding his obligation to appear.
Plaintiff failed to appear at the aforementioned conference or contact the chambers of Magistrate Judge Smith to explain his inability to do so. Magistrate Judge Smith's Report-Recommendation also indicated that plaintiff failed to provide a copy of a motion to compel discovery to the City as required by the Order. Magistrate Judge Smith has recommended that plaintiff's complaint be dismissed in its entirety pursuant to Fed. R.Civ.P. 16(f) and 37(b)(2)(C) "[i]n view of plaintiff's continuing and contemptuous refusal to comply with court procedures and orders and in light of the apparent frivolous nature of the complaint ...".
Plaintiff filed timely objections to the Report-Recommendation. Plaintiff asserts (1) that he did, in fact, provide a copy of the aforementioned discovery motion to counsel for the City of Schenectady; (2) that he did not fail to attend the June 17, 1993 Rule 16 conference, inasmuch as the conference was rescheduled for July 8, 1993; and (3) that "I did not have a copy of the May 20, 1993 order in my files, so I asked the clerk to provide me with a copy on June 23, 1993." Pltf. Objections ¶ 4.
Although plaintiff's first objection is legitimate, the court finds the latter two to be without merit. Accordingly, the Report-Recommendation is adopted and plaintiff's complaint is dismissed.
II. DISCUSSION
There is no dispute that plaintiff provided a copy of his motion to compel discovery to counsel for the City of Schenectady. Apparently, counsel for the City inadvertently overlooked plaintiff's motion papers because they were attached to several other motions submitted by plaintiff. Van Norden Letter 05/18/93. Thus, sanctions against plaintiff are not warranted on that basis.
Plaintiff also claims that he did not appear at the June 17, 1993 conference because he received a notice, dated June 1, 1993, rescheduling the same. Thus, plaintiff asserts that the conference was to actually take place on July 8, 1993. The surrounding facts, however, belie this assertion.
Significantly, the rescheduling notice to which plaintiff refers pertains not to the instant action, but to another of plaintiff's pending civil rights actions: Hall v. Dworkin, 829 F. Supp. 1403. Plaintiff would have the court believe that he overlooked this fact, thereby mistaking the two actions. Without presupposing plaintiff's disingenuousness, suffice it to say that the court places the burden squarely on plaintiff to organize and discriminate between the papers attendant to his many pending civil rights actions. In so doing, the court does not ignore that many pro se plaintiff's are unfamiliar with the formalities of legal practice and procedure and hence must be held to a lesser standard of competence. To be sure, the court does not now hold plaintiff to a higher standard than other pro se plaintiffs. This pro se plaintiff, however, who is all too familiar with the litigation process and the rules of this court, and who continues to demonstrate a lack of due diligence in the face of clear warnings, will only be afforded so much latitude. Thus, although the court is normally inclined to grant the typical pro se litigant all benefit of doubt, the court declines to do so here.
In addition, plaintiff has requested countless adjournments and extensions throughout the course of his litigation in this jurisdiction, with the court repeatedly bending over backwards to afford him substantial deference due to his pro se status. No more. On this occasion plaintiff shall be held accountable and bear the consequences for his failure to abide the Order of this court.
Finally, plaintiff's assertion that he never received the May 20, 1993 Order is rejected. There is every indication that plaintiff received the Order and was well aware of the June 17, 1993 conference. Several defense counsel have indicated, at least one under penalties of perjury, that they had telephone conversations with plaintiff shortly before the scheduled conference wherein plaintiff confirmed his knowledge of the conference, and wherein counsel reminded him of his obligation to appear.
*1403 The court recognizes that dismissal is a drastic remedy that should be used sparingly to enforce the orders of the court. Nevertheless, the Second Circuit has held "that dismissal of an action can be appropriate when a party, even a pro se litigant, has failed to comply with Court orders, or cooperate in discovery, when such failure is willful or in bad faith." Civil v. New York City Dep't of Corrections, 1993 WL 51156, *2, 1993 U.S.Dist. LEXIS 1918, *3 (S.D.N.Y. 1993) (citing Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759 (2d Cir.), cert. denied, 499 U.S. 943, 111 S. Ct. 1404, 113 L. Ed. 2d 459 (1991); Minotti v. Lensink, 895 F.2d 100 (2d Cir.1990); McDonald v. Head Criminal Court Superior Officer, 850 F.2d 121 (2d Cir.1988); and Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67 (2d Cir.1988)).
The court finds plaintiff's failure to attend the June 17, 1993 conference to have been willful, and plaintiff cannot now extricate himself by claiming what the court finds to be implausible mistake and excuse. In short, because this court likewise finds dismissal justified, and can find no clear error or manifest injustice in Magistrate Judge Smith's Report-Recommendation, the court will not disfavor his counsel.
In so holding, the court is conscious of its obligation to zealously guard the rights of pro se litigants. However, the court also recognizes its duty to balance those rights against the commensurate interest of defendants in avoiding unnecessary time, energy and expense.
Finally, the court is mindful of the Second Circuit's decision in Branum v. Clark, 927 F.2d 698 (2d Cir.1991). However, plaintiff in the instant case, unlike the plaintiff in Branum, is by no means a first-time pro se litigant. As noted, plaintiff here has become well-acclimated, if not skillful, in utilizing the rules of the court to his advantage.
Based on the foregoing, it is hereby
ORDERED, that the Report-Recommendation dated June 18, 1993 is adopted; and it is further
ORDERED, that plaintiff's complaint is dismissed in its entirety with prejudice pursuant to Fed.R.Civ.P. 16(f) and 37(b)(2)(C).
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877236/ | 829 F. Supp. 293 (1993)
Sidney E. VANN, Petitioner,
v.
Frank X. HOPKINS, Respondent.
No. 4:CV92-3359.
United States District Court, D. Nebraska.
June 28, 1993.
*294 Sidney Carl Vann, pro se.
Donald B. Stenberg, Atty. Gen., Lincoln, NE.
MEMORANDUM AND ORDER ON PLAINTIFF'S OBJECTION TO MAGISTRATE'S REPORT AND RECOMMENDATION AND MOTION FOR EVIDENTIARY HEARING
URBOM, District Judge.
The petitioner, Sidney E. Vann, has filed a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge David L. Piester has reviewed the second petition and has recommended that the five claims in the petition be dismissed as being either successive or barred under Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). See Filing 16. The petitioner has filed a timely objection to the report and recommendation and has also moved for an evidentiary hearing. Filings 17 & 14. At the petitioner's request and pursuant to 28 U.S.C. § 636(b)(1) I have undertaken a de novo review of the entire record. Following my review, I will adopt the magistrate judge's recommendation that the petition be dismissed and deny the petitioner's motion for an evidentiary hearing.
In his second petition for writ of habeas corpus the petitioner has challenged his conviction on five grounds previously reviewed by the court, including 1) denial of due process arising from insufficient evidence of a chain of custody of certain physical evidence; 2) denial of due process because he was tried on more severe criminal charges from those which he was bound over for trial; 3) denial of due process arising from his sentencing under the Nebraska habitual criminal statute; 4) illegal search and seizure; and 5) pretextual arrest. See Filing 1.
The magistrate judge ruled that, pursuant to Rule 9 of the Rules Governing Section 2254 Proceedings[1], I had denied claims one and two on their merits in reviewing the first *295 petition and that, therefore, these claims should be dismissed as successive. Filing 16 at 2. In reviewing Vann's second petition, I do not find that he has alleged either new or different grounds for relief. These two due process claims were squarely addressed on their merits in the first petition for writ of habeas corpus. Accordingly, I shall dismiss the first two claims as successive.
The magistrate judge has also recommended that the third claim denial of due process during the habitual criminal hearing be dismissed as successive. As the magistrate noted, the petitioner did not exhaust this claim on direct appeal in state court nor was he successful in demonstrating cause and prejudice in this court. Consequently, I earlier dismissed this claim as waived in the petitioner's first petition for writ of habeas corpus. See Vann v. Gunter, CV89-L-45, filing 28 at 7.
In reviewing the same claim under the second petition I find that the magistrate judge correctly determined that the controlling issue was "whether a claim which has been denied for failure to overcome a state procedural default was decided `on the merits' for purposes of determining whether the claim is subject to dismissal pursuant to rule 9(b)." Filing 16 at 3. I further find that the magistrate judge's analysis is persuasive and therefore adopt his recommendation to dismiss this claim as successive.
Lastly, the magistrate judge reviewed claims four and five unlawful search and seizure and pretextual arrest and recommended that both claims be dismissed because they are barred from federal habeas review under the doctrine enunciated in Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976). In Stone the United States Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a fourth amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Id. at 482, 96 S.Ct. at 3046.
The operative word in Stone is opportunity. If the state court has afforded the litigant an opportunity to fully and fairly litigate his or her fourth amendment claim or claims, then a federal court is precluded from habeas review of that claim as a fourth amendment claim.
My review of the state court trial proceedings clearly establishes that the suppression hearing before Douglas County District Judge Theodore Carlson provided an opportunity for full and fair litigation of claims alleging illegal search and seizure as well as pretextual arrest. However, my review of the trial transcript reveals that many of the material facts underlying both fourth amendment claims were never developed and presented to Judge Carlson at the suppression hearing, nor was any evidence offered by the defense to support either claim. From what I am able to adduce from the transcript of the suppression hearing, no brief in support of the motion to suppress was ever submitted.[2] Furthermore, as the Nebraska Supreme Court declared in its opinion, the defense failed to make timely objections at Vann's trial to the district court's receipt of the physical items which were the subject of the motion to suppress. State v. Vann, 230 Neb. 601, 606-07, 432 N.W.2d 810, 814 (1988). Nonetheless, the petitioner was afforded an opportunity for full and fair litigation of these claims, and thus I am precluded under Stone from considering his illegal search and seizure and pretextual arrest claims as fourth amendment claims on habeas review.
Perhaps, in part, because the Stone doctrine can produce a great injustice on a criminal defendant, the United States Supreme Court announced in Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1985), that the restriction of federal habeas review of fourth amendment claims as mandated by Stone does not preclude habeas review of sixth amendment claims of ineffective assistance of counsel which are founded upon ineffective representation with respect *296 to fourth amendment issues. Id. at 374-75, 106 S.Ct. at 2582-83. High Elk v. Solem, 804 F.2d 496, 497-98 (8th Cir.1986). In Kimmelman, the Court declared:
"In order to prevail, the defendant must show both that counsel's representation fell below an objective standard of reasonableness, Strickland [v. Washington], 466 U.S. [668] at 688, [104 S. Ct. 2052, at 2064-65, 80 L. Ed. 2d 674], (1984) and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694 [104 S.Ct. at 2068]. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice."
477 U.S. at 375, 106 S.Ct. at 2582-83.
In his second petition for writ of habeas corpus the petitioner has not advanced a sixth amendment claim of ineffective assistance of counsel. However, he did assert such a claim in his first petition for writ of habeas corpus.[3]See Vann v. Gunter, CV89-L-45, Filing 1. Because both defense trial and appellate counsel worked for the Douglas County Public Defender's Office, the petitioner could not have asserted his claim against appellate counsel on direct appeal, and a conflict of interest would have been present had appellate counsel asserted a sixth amendment claim of ineffective assistance against the trial counsel.
Nebraska law provides a postconviction remedy for criminal defendants. Neb.Rev. Stat. § 29-3001 et seq (Reissue 1989). The magistrate judge correctly stated that state postconviction relief is available to the petitioner should he wish to pursue his sixth amendment claim on the basis of ineffectiveness of either or both counsel. As the magistrate judge earlier explained, because a claim of ineffective assistance of counsel would provide a basis for habeas corpus relief, the petitioner must first present the claim to the state court, as an independent claim, before it may be considered by this federal court as a basis for lifting a procedural bar. See Vann v. Gunter, CV89-L-45, filing 17 at 3 & n. 4. Accordingly, I must dismiss claims four and five because the petitioner has not exhausted his state postconviction remedy.
Should the petitioner decide to pursue state postconviction relief and be unsuccessful, I can review the claims of illegal search and seizure and pretextual arrest, but only if they are framed as sixth amendment ineffective-assistance-of-counsel claims, alleging failure to litigate fourth amendment issues properly. Otherwise, these two claims will be dismissed again as barred under the Stone doctrine.
IT IS THEREFORE ORDERED that I adopt the magistrate judge's memorandum, order and recommendation, filing 16, to dismiss all five claims and deny the petitioner's motion for an evidentiary hearing, filing 14.
MEMORANDUM, ORDER AND RECOMMENDATION
PIESTER, United States Magistrate Judge.
Petitioner, incarcerated in the Nebraska State Penitentiary, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. *297 § 2254. Liberally construing the allegations of the petition, Carlson v. State of Minnesota, 945 F.2d 1026, 1029 (8th Cir.1991) (pro se petitions are to be liberally construed in favor of petitioner), I conclude claims one, two and three should be dismissed as successive pursuant to Rule 9(b) of the Rules Governing Section 2254 Proceedings, and consideration of claims four and five is barred by Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). I shall therefore recommend dismissal of this petition.
Under attack is petitioner's 1987 conviction for possession with intent to deliver a controlled substance. Following an habitual criminal hearing petitioner was sentenced to 15 to 25 years imprisonment. The conviction was affirmed on direct appeal. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
In 1989 petitioner filed a petition for writ of habeas corpus in this court, (Vann v. Gunter, CV89-L-45), challenging his conviction and sentence on six grounds: 1) denial of due process through insufficient evidence of the chain of custody of certain physical evidence; 2) denial of due process because he was tried on different charges from those on which he was bound over for trial; 3) denial of due process as a result of his sentencing under the habitual criminal statute; 4) unlawful search and seizure; 5) pretextual arrest; and 6) ineffective assistance of appellate counsel. Petitioner voluntarily dismissed the sixth claim of the petition because he had failed to exhaust the claim in state courts, and had an available state court remedy for the claim.
Following the appointment of counsel and the submission of briefs, I recommended the petition be denied in all respects. Vann v. Gunter, CV89-L-45, filing 28 (July 6, 1990).[1] Subsequently, Judge Urbom adopted the recommendation and denied the petition, Vann v. Gunter, CV89-L-45, filing 32 (Sept. 12, 1990), and such denial was affirmed by the Eighth Circuit Court of Appeals. Vann v. Gunter, No. 90-2717 slip op., Nov. 27 (8th Cir.1990).
Petitioner now has filed a second petition for writ of habeas corpus in this court, challenging his conviction once again on the five grounds previously considered by the court: 1) denial of due process through insufficient evidence of the chain of custody of certain physical evidence; 2) denial of due process because he was tried on different charges from those on which he was bound over for trial; 3) denial of due process as a result of his sentencing under the habitual criminal statute; 4) unlawful search and seizure; and 5) pretextual arrest.
SUCCESSIVE PETITION
The presentation of this action subjects the claims of this action to dismissal pursuant to Rule 9 of the Rules Governing Section 2254 Proceedings, which provides in relevant part:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits....
Rule 9(b) of the Rules Governing Section 2254 Proceedings.
In this instance all claims were presented in a previous § 2254 action. The first two claims were clearly denied on their merits and should be dismissed as successive. There is some question as to whether the third claim should be dismissed as successive.
Petitioner's third claim, denial of due process in his habitual criminal hearing, was also raised in his previous petition. The claim had not been exhausted in state courts and no remedy was then available in state courts. Petitioner was granted leave to demonstrate "cause and prejudice" to overcome the procedural default, as required by Wainwright v. Sykes, 433 U.S. 72, 97, 97 S. Ct. 2497, 2511-12, 53 L. Ed. 2d 594 (1977). Petitioner was unable to demonstrate cause or prejudice and the claim was therefore dismissed as waived. Vann v. Gunter, CV89-L-45, filing 28 at 7.
*298 The issue to be determined is whether a claim which has been dismissed for failure to overcome a state procedural default was decided "on the merits" for purposes of determining whether the claim is subject to dismissal pursuant to rule 9(b). The Eighth Circuit has not previously faced this issue directly. This court has found only one case squarely addressing this question. Howard v. Lewis, 905 F.2d 1318 (9th Cir.1990).
In Howard, the Ninth Circuit held that a claim dismissed from a § 2254 petition for failure to overcome a state procedural default may be dismissed as successive if it is brought in a second habeas petition. Id. at 1323. The court, noting that the successive petition doctrine was formulated in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) reiterated the Supreme Court's holding that a dismissal of a successive petition may occur if "the prior denial ... rested on an adjudication of the merits of the ground presented in the subsequent application." Howard at 1321-22, citing Sanders at 16, 83 S.Ct. at 1077. The Ninth Circuit stated,
While a court in dismissing a petition because of state procedural default (and a failure to show cause and prejudice), is not determining the merits of the underlying claims, it is making a determination on the merits that the underlying claims will not be considered by a federal court for reasons of comity. See Wainwright v. Sykes, 433 U.S. 72, 84, 87 [97 S. Ct. 2497, 2505, 2506, 53 L. Ed. 2d 594] (1977) (citing Francis v. Henderson, 425 U.S. 536, 538-39 [96 S. Ct. 1708, 1709-10, 48 L. Ed. 2d 149] (1976)); Jackson v. Cupp, 693 F.2d 867, 869 & n. 2 (9th Cir.1982). Such a determination should be considered "on the merits" for purposes of the successive petition doctrine.
Howard at 1322 (emphasis in original). The court noted that other circuits have determined that a dismissal for failure to exhaust a presently available state court remedy is not a determination "on the merits" for purposes of a successive petition, and stated,
a dismissal for failure to exhaust state remedies is distinguishable from a dismissal for state procedural default. In the former situation, the state courts have not rendered a decision regarding the merits of defendant's claims, but the opportunity is still open for the defendant to obtain a disposition on the merits of his or her claims in the state courts. After exhausting state court remedies, a subsequent federal petition for habeas corpus could be entertained while preserving the principles of federal-state comity. In the case of state procedural default, a state court has not rendered a decision regarding the merits of the defendant's claims, but the defendant has no further opportunity to obtain a disposition on the merits of his or her claims in the state courts. In a subsequent petition raising the same claims that were dismissed previously on the basis of state procedural default, the interest underlying the dismissal of the first petition, i.e., federal-state comity, is still present.... We conclude, therefore, that the dismissal of a federal habeas petition on the ground of state procedural default is a determination "on the merits" for the purpose of the successive petition doctrine.
Id. at 1322-33 (emphasis added).
In Hill v. Lockhart, 877 F.2d 698 (8th Cir.1989), aff'd in relevant part, 894 F.2d 1009 (en banc), cert. denied, 497 U.S. 1011, 110 S. Ct. 3258, 111 L. Ed. 2d 767 (1990), the Eighth Circuit addressed the question of what constitutes a decision "on the merits" of a claim of ineffective assistance of counsel. In Hill, the petitioner, who had pleaded guilty at trial, filed his first § 2254 action in 1983 claiming that ineffective assistance of counsel rendered his guilty plea involuntary. The district court denied habeas relief and the court of appeals affirmed. A rehearing en banc was granted and the court, by way of an equally divided vote, affirmed the trial court's ruling. The case was taken to the Supreme Court, which found that the petitioner had failed to satisfy the "prejudice" prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Supreme Court did not decide whether the petitioner had shown cause. Hill at 700-01.
The petitioner in Hill then filed a second § 2254 petition making a more specific factual *299 allegation of prejudice. The district court granted habeas relief. The court of appeals found that the writ was properly granted. The court noted that Rule 9(b) allows, but does not require, a judge to dismiss a successive petition. The court went on to say that the Supreme Court's holding did not reach the merits of the petitioner's claim because of a failure to properly plead prejudice. The Eighth Circuit found that the Supreme Court did not apply the full Strickland "cause and prejudice" test because insufficient facts were alleged in the petition to show prejudice. The Eighth Circuit stated that "The District Court did not abuse its discretion in entertaining this second habeas petition." Hill at 702.
In Hill, the Eighth Circuit did not address the appropriateness of a court dismissing a successive petition. Its holding stated only that a district court has the discretionary power to consider claims even though they are brought in a successive petition. In the case at hand, petitioner's claims were fully presented in a prior proceeding. The court did not, as in Hill, consider merely the allegations of the petition. After an evidentiary hearing, the court found that petitioner Vann had not overcome a state procedural default. This factual situation distinguishes the present case from Hill. I find the Ninth Circuit's reasoning in Howard to be persuasive. I shall therefore recommend claim three be dismissed as successive.
FOURTH AMENDMENT CLAIMS
In his fourth and fifth claims petitioner challenges his conviction on grounds of illegal search and seizure under the Fourth Amendment to the United States Constitution. The Supreme Court has held that Fourth Amendment claims are not cognizable in a federal habeas action unless petitioner did not receive a full and fair opportunity to litigate the Fourth Amendment claim in the state courts. Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976). In previously considering these claims, I found that petitioner did have a full and fair opportunity to litigate the claims in state court. These two claims are therefore barred from consideration in this action by Stone, supra. The notions of comity which compel the dismissal of the procedurally barred claim as described above also promote the position that the claims barred by Stone in a previous petition should be dismissed as successive in this petition. See Stone v. Powell, 428 U.S. at 478, fn. 11, 96 S.Ct. at 3044, fn. 11. I shall therefore recommend claims four and five be dismissed.
Petitioner has requested the court appoint counsel to represent him in this matter. Because I recommend this case be dismissed, I shall deny petitioner's request for appointed counsel.
IT IS ORDERED that petitioner's motion for appointment of counsel is denied.
FURTHER, IT THEREFORE IS HEREBY RECOMMENDED, pursuant to 28 U.S.C. § 636(b)(1)(B), that the petition be dismissed.
Petitioner is hereby notified that unless objection is made within ten days after he is served with a copy of this recommendation, he may be held to have waived any right he may have to appeal the court's order adopting this recommendation.
Dated January 7, 1993.
NOTES
[1] Rule 9(b) provides in relevant part:
A second or successive petition may be dismissed if the judge find that it fails to allege new or different grounds for relief and the prior determination was on the merits.
Rule 9(b) of the Rules Governing Section 2254 Proceedings.
[2] Defense counsel's attempt to suppress evidence at the hearing was limited to his cross-examination of two Omaha police officers.
[3] In his first petition for writ of habeas corpus the petitioner alleged that Brian Munnelly, appellate defense counsel, did not provide effective assistance of counsel because he failed to adequately brief and present the pretextual arrest claim to the Nebraska Supreme Court. My review of the state court proceedings suggests that if there was a failure to litigate the petitioner's fourth amendment claim of pretextual arrest, the failure to litigate occurred at the suppression hearing and trial, not at the appeal stage. I concur with the state-appellee's argument which states:
The motion to suppress (T5) refers only to the arrest warrant and arresting officers and does not speak to the search warrant nor the searching officers. The motion does not state the appellant's theory on appeal that the arrest for felony theft was a mere pretext to search for the narcotics contraband. Therefore, the appellee would assert that the appellant has failed to allege the error now complained of at any time during the trial.
Brief of Appellee, State v. Vann, 432 N.W.2d at 814.
[1] I recommended the first two claims be dismissed on their merits. I found that petitioner had failed to overcome a procedural default committed on the third claim; consideration of the fourth and fifth claims was barred by Stone supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2999186/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2006
Decided May 2, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-2388
MUSARAT N. SHARAFI, Petition for Review of the Board of
Petitioner, Immigration Appeals
v. No. A76-772-198
ALBERTO R. GONZALES,
Respondent.
ORDER
Musarat Sharafi, a native and citizen of Pakistan, sought adjustment of
status before an immigration judge (“IJ”) in 2001. The IJ denied her request and
ordered her removed from the United States. Later she moved to reopen the
proceedings, claiming that she was prejudiced at her hearing by ineffective
assistance of counsel. The IJ denied the motion largely on the ground that she
failed to satisfy one of the requirements for establishing ineffective assistance of
counsel under In re Lozada, 19 I. & N. Dec. 637 (BIA 1988): she did not show that
she had filed a complaint against her former counsel with an appropriate
disciplinary authority. Sharafi appealed this decision to the Board of Immigration
Appeals (“BIA”), which affirmed without opinion in 2003. More than a year later,
Sharafi moved to reopen proceedings before the BIA, asserting that she had “new
No. 05-2388 Page 2
and material evidence” to support her application for adjustment of status. The
BIA denied her motion to reopen as untimely, and then rejected the arguments she
advanced in a motion to reconsider. Sharafi next sought our review of “the
underlying orders in this cause.” After oral argument, we ruled from the bench that
the petition would be denied. We now supplement our ruling with this order.
A petition for review must be filed within 30 days of the decision to be
reviewed, see 8 U.S.C. 1252(b)(1); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.
2006); see Stone v. INS, 514 U.S. 386, 395 (1995) (holding that motion to reconsider
does not toll time for review of underlying order), but Sharafi failed to comply with
the deadline as to any of the BIA’s rulings except its order denying her motion to
reconsider. Our review is confined to consideration of that denial; all we can do is
determine whether she gave the BIA reason to reconsider. Rehman v. Gonzales,
441 F.3d 506, 508 (7th Cir. 2006); Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir.
2004). Sharafi, however, fails even to mention the denial of the motion to
reconsider in the discussion section of her brief; thus she has waived her right to
review of that decision. See Asere, 439 F.3d at 381. Only after the government
pointed out this omission did she attempt to address in her reply brief the denial of
the motion to reconsider, but arguments that appear for the first time in a reply
brief are no less waived. See, e.g., United States v. Alhalabi, No. 05-2209, 2006 WL
910331, at *4 (7th Cir. Apr. 11, 2006); Harper v. Vigilant Ins. Co., 433 F.3d 521, 528
(7th Cir. 2005); El-Gharabli v. INS, 796 F.2d 935, 940 (7th Cir. 1986) (per curiam).
At oral argument, moreover, counsel again ignored the denial of the motion to
reconsider and instead attacked the denial of the underlying motion to reopen. We
invited counsel to explain how, consistent with the Supreme Court’s decision in
Stone, we might consider his arguments, but he refused to do so. Because Sharafi
failed to obtain judicial review of the BIA’s denial of her motion to reopen and
because she has failed to present any argument concerning the denial of her most
recent motion to reconsider, there is no argument properly before us. Stone, 514
U.S. at 397; see Rehman, 441 F.3d at 508; Asere, 439 F.3d at 380; Ajose v. Gonzales,
408 F.3d 393, 394-95 (7th Cir. 2005). Accordingly, we DENY the petition for review. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3098791/ | NO. 07-11-0045-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 27, 2012
______________________________
DIANNE HOPKINS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 119[TH] DISTRICT COURT OF TOM GREEN COUNTY;
NO. B-10-0068-SA; HONORABLE BEN WOODWARD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Dianne Hopkins, was convicted by a jury of murder, with special findings of sudden passion and use of a firearm. Punishment was assessed at twenty years confinement. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We modify a portion of the trial court's judgment, grant counsels motion to withdraw, and affirm the judgment as modified.
Factual Background
At the time of the offense, Appellant was sixty years old, disabled, lived alone and suffered from various medical conditions. The deceased was a young woman in her twenties. Both of them lived in the same trailer park and were hostile toward each other due to a prior altercation that occurred in February 2009. During that altercation the deceased allegedly assaulted Appellant, requiring a visit to the emergency room, after Appellant kicked the deceased's car.
On the morning of September 22, 2009, the deceased was driving with her children down the dirt road exiting the trailer park when a sprinkler hanging from Appellant's fence sprayed her in the face. The deceased backed her car into Appellant's driveway, exited the car and went to Appellant's front door to complain about the sprinkler. According to Appellant's statement, since the February assault she lived in fear of the deceased and customarily answered the door armed with a .38 revolver and pepper spray. According to a witness, the deceased repeatedly beat on the door, shouted obscenities and ordered Appellant to open the door. Although the evidence is conflicting as to what transpired between the two when Appellant finally opened the door, the end result was that Appellant shot the deceased in the left side of her chest. Both Appellant and a neighbor immediately called 911.
Evidence presented at trial demonstrated that Appellant and the deceased were both confrontational people. There was also testimony that each had made threats against the other. Defense counsel tried the case under a theory of self-defense and the jury was properly charged. The jury, however, rejected that theory and found Appellant guilty of murder. During the punishment phase of trial, evidence was presented that Appellant acted with sudden passion arising from an adequate cause. The jury answered Appellant's sudden passion issue in the affirmative and assessed her punishment at twenty years confinement.
Ander's Brief and Motion to Withdraw
In support of his motion to withdraw, Appellant's counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying her of the right to file a pro se response if she desired to do so, and (3) informing her of the right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant an opportunity to exercise her right to file a response to counsels brief, should she be so inclined. Id. at 409 n.23. Appellant did file a response. The State filed a letter brief agreeing with the trial court's judgment and indicating it would not be filing a response on the merits.
Analysis
A person is guilty of murder if he or she intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b) (West 2011). Upon the law of self-defense, a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect himself or herself against the other's use or attempted use of unlawful force. Id. at § 9.31(a). Self-defense does not justify the use of force against another in response to verbal provocation alone. Id. at § 9.31(b)(1). The sine qua non of self-defense is the defendant's subjective state of mind. Smith v. State, 676 S.W.2d 584, 585 (Tex.Crim.App. 1984).
Murder is a first degree felony punishable by confinement for life or for any term of not more than 99 years or less than 5 years. Id. at § 12.32(a). If, however, during the punishment stage of a murder trial, the defendant raises the issue of sudden passion arising from an adequate cause and proves that issue in the affirmative by a preponderance of the evidence, the crime is punishable as a second degree felony with a maximum sentence of twenty years confinement. Id. at §§ 19.02(d) and 12.33(a). The core concept of "sudden passion" is that at the moment of the killing the actor's mental state rendered him or her incapable of rational thought and collected action. See Perez v. State, 323 S.W.3d 298, 305 (Tex.App.--Amarillo 2010, pet. ref'd). See also Swearingen v. State, 270 S.W.3d 804, 820 (Tex.App.--Austin 2008, pet. ref'd). While sudden passion doesn't justify the actor's conduct, it may ameliorate the appropriate punishment.
Here, Appellant was given an appropriate self-defense charge which the jury considered and rejected. The jury was also properly instructed on the law pertaining to sudden passion, which it accepted.
By the Anders brief counsel raises three arguable issues, to-wit: (1) sufficiency of the evidence to support the conviction; (2) sufficiency of the evidence to prove that Appellant did not act in self-defense; and (3) ineffectiveness of trial counsel. Counsel then analyzes the potential issues and concludes they have no merit. We agree. We have also made a thorough and independent review of the record and we find no other potentially plausible basis to support an appeal.
Pro Se Response
When we have an Anders brief by counsel and a pro se response by an appellant, we have two choices. We may determine that the appeal is wholly frivolous and issue an opinion explaining that we have reviewed the record and find no reversible error, Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders, 386 U.S. at 744); or we may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).
We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record, counsels brief, and Appellants pro se response, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe, 178 S.W.3d at 824.
Attorney's Fees
We do note, however, a clerical issue not raised by Appellant regarding the assessment of attorney's fees. The Bill of Costs reflects that Appellant owes $500 in court-appointed attorney's fees and the judgment reflects that Appellant owes court costs in accordance with that bill. In order to assess attorney's fees in a judgment, a trial court must determine the defendant has financial resources that enable him or her to offset in part or in whole the costs of legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). Furthermore, the record must reflect some factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.). The record in this case does not contain any evidence to support such a determination. Therefore, we conclude that the inclusion of attorney's fees in the court ordered costs was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we modify the judgment to delete the order that Appellant pay $500 in court-appointed attorney's fees.
Conclusion
Counsel's motion to withdraw is granted and as modified, the trial courts judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540806/ | Opinión disidente emitida por el
Juez Asociado Señor Rivera García.
“El sustento de miles de servidores públicos merecía un Tribunal que examinara a cabalidad sus planteamientos de acuerdo con la prueba que en su momento se presentara, y no que se atendieran sus reclamos mediante una decisión que valida, cual sello de goma, los argumentos del Estado”.(1)
El 11 de jimio de 2013, una mayoría de este Tribunal emitió una resolución en la cual le ordenó al Tribunal de Primera Instancia (TPI) que, con suma diligencia y premura, celebrara una vista evidenciaria en los casos de epígrafe y, además, emitiera los remedios provisionales necesarios para que se atiendan a tiempo las reclamaciones de los peticionarios. El foro primario atendió el caso y desestimó las causas de los demandantes. Hoy, una mayoría de este Tribunal avala este endeble rumbo decisorio.
En la nefasta opinión que hoy se certifica, una-mayoría ha optado por navegar un curso de acción apresurado, sin que se haya presentado en los tribunales la prueba necesaria para establecer que las modificaciones al Sistema de Retiro constituyen la alternativa menos onerosa a la luz de la situación fiscal de Puerto Rico. Peor aún, so pretexto de *860atender una crisis, a fin de cuentas el resultado nos lleva inevitablemente hacia una hecatombe mayor. Con esta decisión, se conduce al servidor público a un estado de indefensión y se le condena a a que viva al final de su carrera, en el ocaso de su existencia, al borde de la pobreza. Sin duda alguna, el Estado, haciendo uso de su poder, ha echado a un lado al empleado público que por años dedicó su vida al servicio del pueblo. Ante la postura pusilánime asumida por cinco miembros de este Tribunal, no me queda más que disentir.
I
En vista de que se ordenó que se consolidaran los casos y que las controversias de estos están estrechamente entrelazadas, exponemos los hechos por separado para facilitar su comprensión.
CT-2013-08
En este caso tenemos ante nuestra consideración una demanda presentada el 21 de mayo de 2013 por Víctor A. Trinidad Hernández y otros 45 miembros de la Policía de Puerto Rico (los peticionarios) contra el Gobierno de Puerto Rico y la Administración de los Sistemas de Retiro de los Empleados del Gobierno y la Judicatura de Puerto Rico (Sistema de Retiro). Estos impugnan la constitucionalidad de la Ley Núm. 3-2013 (Ley 3) por menoscabar su relación contractual con el Gobierno y tener una aplicación arbitraria e irrazonable al alterar los beneficios de retiro que tenían la expectativa de recibir. Además, solicitan que se emita un injunction preliminar y permanente para detener su implantación.
En síntesis, los peticionarios alegan que están cobijados por la Ley Núm. 447 de 15 de mayo de 1951, según enmendada, 3 LPRA see. 761 et seq. (Ley 447), y la Ley Núm. 1 de 16 de febrero de 1990 (3 LPRA sec. 766b et seq.), que aplica a aquellos empleados que entraron al Sistema de Retiro *861después del 1 de abril de 1990. La See. 3 de la Ley Núm. 1 (3 LPRA sec. 766d) establece una pensión idéntica a la pensión por mérito de la Ley 447, dirigida únicamente a los miembros de la Policía. Plantean, además, que las enmiendas realizadas por la Ley 3 son inconstitucionales, toda vez que constituyen un menoscabo sustancial de su relación contractual con el Estado.
Esto, pues con la aprobación de la Ley 3, se enfrentan a un panorama de retiro totalmente distinto al que planificaron. Aducen que tienen derecho a retirarse con una anualidad equivalente a 75% de su salario promedio si cuentan con treinta años de servicio y con al menos 55 años de edad al momento de su retiro, o 65% de su salario promedio si cuentan con treinta años de servicio y menos de 55 años de edad.
Con la aprobación de la Ley 3, supra, se enmendó la Ley Núm. 447 y con ello el compromiso y la garantía que tenían los peticionarios de recibir una pensión correspondiente al 75% o 65% de su salario promedio. Establece esta ley, además, que aquellos que se retiren antes de 30 de junio de 2013, podrán continuar recibiendo las aportaciones gubernamentales al plan médico así como el bono de medicamentos y el bono de navidad. Por el contrario, aquellas personas que se retiren del 1 de julio de 2013 en adelante no recibirán estas aportaciones. Asimismo, cuestionan la eliminación de la pensión por incapacidad y la imposición de un seguro compulsorio por incapacidad.
Por otro lado, como agravante, los peticionarios expresan que son servidores públicos de alto riesgo y que no pueden aportar al Seguro Social, por lo que no recibirán pensión alguna por ese concepto cuando se retiren. Así pues, luego de varios incidentes procesales acaecidos en el Tribunal de Primera Instancia, el señor Trinidad Hernández y otros presentaron el 5 de junio de 2013 un recurso de certificación ante esta Curia. Examinada la petición, emitimos una resolución en la que, entre otros asuntos, se or*862denó al Tribunal de Primera Instancia a que celebrase una vista evidenciaria no más tarde de 18 de junio de 2013, en la que las partes presentaran prueba sobre las edades de los demandantes y los años cotizados en el servicio público.
Conforme a ese mandato, el foro primario emitió una orden en la que citó a las partes a una vista evidenciaria el 18 de junio de 2013, a las 8:30 a. m. No obstante, el 17 de junio de 2013 desestimó esta demanda mediante Sentencia Declaratoria e Injunction. De esta determinación se presentó ante el Tribunal de Apelaciones un recurso de apelación. Sin embargo, ante la inminencia de la entrada en vigor de la Ley 3, los peticionarios acuden ante nos mediante una petición de certificación. En esencia, nos solicitan que ante el poco tiempo que falta para que entre en vigor la Ley 3, actuemos con celeridad y expidamos el auto de certificación.
CT-2013-09
Los peticionarios en este caso son 68 empleados de la Oficina del Contralor de Puerto Rico que entraron en el servicio público hace más de 23 años. Entre estos, figuran el Subcontralor de Puerto Rico; la Directora de Auditoría de los Sistemas de Retiro y Asuntos Financieros de la Oficina del Contralor; la Directora Ejecutiva de la Oficina de Asuntos Legales, Investigaciones y Litigios; el Director Ejecutivo de la Oficina de Prevención y Anticorrupción; el Director de la División de Análisis de Datos Forense Digital y Desarrollo Tecnológico; la Directora de Auditoría Interna; la Directora Ejecutiva de la Oficina de Asuntos de Auditorías; el Director de la División de Auditorías de Departamentos y Agencias, y la Directora de la División de Auditorías de Municipios, además de varios subdirectores de divisiones, gerentes, auditores y ayudantes ejecutivos.
Todos estos empleados han aportado al Sistema de Re-tiro vigente de forma compulsoria. Por formar parte del servicio público antes del 1 de abril de 1990, cada uno está protegido por la estructura de beneficios que adquirieron *863cuando comenzaron sus labores. Cada uno es participante en un plan de pensión de tipo “beneficio definido” basado en la Ley 447, estatuto que estableció la llamada “pensión por mérito”. Por décadas, se les ha garantizado que al día de su retiro, disfrutarán de una anualidad equivalente a 75% de su salario promedio si cuentan con 30 años de servicio y con al menos 55 años de edad al momento de retirarse, o 65% de su salario promedio si no cuentan con 55 años de edad. Los peticionarios tienen entre 44 y 57 años de edad y todos han cotizado para su plan de retiro por más de 20 años al amparo de la Ley 447. Empero, hoy ninguno ha alcanzado los 55 años de edad ni los 30 años de servicio que los cualifica para recibir la pensión por mérito.
Actualmente, los demandantes se enfrentan a tener que optar entre dos alternativas: (1) retirarse en o antes del 30 de junio de 2013 para acogerse al sistema antiguo de re-tiro, o (2) continuar trabajando en el Gobierno por un espacio de entre 1.6 a 17 años adicionales a lo contemplado en la ley anterior para, eventualmente, jubilarse con una anualidad significativamente menor a la que les fue prometida cuando ingresaron al sistema y quedar desprovistos de un plan médico, beneficio que también tendrían al amparo de la Ley 447.
Por esta razón, el 8 de mayo de 2013, los peticionarios presentaron una petición ante el TPI para solicitar una sentencia declaratoria e interdicto preliminar y permanente para impugnar la constitucionalidad de ciertas disposiciones de la recién aprobada Ley 3, que menoscaban su derecho a retirarse según el plan por el cual contrataron con el Gobierno de Puerto Rico.
Luego de varias incidencias procesales, y al igual que en el caso anterior, la Sra. María del Carmen Alvarado y otros presentaron el 5 de junio de 2013 un recurso de certificación ante este Tribunal. Posteriormente, ordenamos al Tribunal de Primera Instancia que celebrara una vista evidenciaría antes del 18 de junio de 2013. Sin embargo, el *864foro primario desestimó la demanda de autos el día antes de celebrar la vista.
Inconformes con ese proceder, los peticionarios presentaron ante el Tribunal de Apelaciones un recurso de apelación. No obstante, ante la proximidad de que cobren vigencia las disposiciones de la Ley 3, supra, acuden ante nos mediante una petición de certificación. En esencia, nos solicitan que expidamos el auto y que declaremos inconstitucional las condiciones de la Ley Núm. 3 que tienen el efecto de menoscabar las relaciones contractuales del Gobierno con los empleados.
CT-2013-10
El presente recurso es instado por 50 empleados de la Autoridad de Acueductos y Alcantarillados, cuatro empleados del Departamento de la Vivienda, tres del Municipio de Bayamón, uno del Departamento de Transportación y Obras Públicas, uno del Departamento de Asuntos del Consumidor, y dos del Departamento de la Familia. Estos plantean que la Ley 3 menoscaba retroactivamente los derechos adquiridos por los peticionarios al amparo de la Ley 447 y a la luz de la indubitada relación contractual existente entre estos y la Administración del Sistema de Retiro. Alegan, además, que esa relación contractual les fue impuesta por parte del recurrido como requisito compulsorio e irrevocable cuando fueron reclutados en sus respectivos empleos.
Cónsono con lo anterior, los peticionarios arguyen que confiados en la certidumbre de sus derechos y las obligaciones del Gobierno, planificaron su futuro económico con la expectativa de acogerse al retiro con los beneficios y en las fechas que las leyes correspondientes establecían. Fundamentan su posición en que realizaron préstamos, los cuales están pagando, para que le acreditaran tiempo no cotizado y así completar los años requeridos. De igual forma, alegan que tenían planes de saldar sus deudas con la liquidación a la que tienen derecho para luego costear *865sus gastos con lo que recibirían de pensión. Arguyen, además, que rechazaron ofertas de empleo más lucrativas en el sector privado por no poner en riesgo su retiro.
Al igual que los casos anteriores, los peticionarios confrontan una situación espinosa: optar por una pensión sustancialmente menor a la pactada o continuar trabajando un gran número de años adicionales para finalmente recibir una pensión menguada y sin los beneficios de plan médico, bonos y bajo unas condiciones totalmente diferentes.
En atención a ello, el Sr. José A. De Jesús Vera y otros presentaron, el 6 de junio de 2013, una petición de sentencia declaratoria e interdicto provisional y permanente ante el TPI. Este recurso fue consolidado a nivel de instancia con los casos mencionados y, al igual que estos, sus reclamaciones fueron desestimadas por el foro primario el 17 de jimio de 2013.
Ante el factor inminente de que cobren vigencia los postulados de la Ley 3, los peticionarios presentaron un recurso de certificación ante este tribunal. En este, nos solicitan que con carácter de urgencia expidamos el auto solicitado y declaremos la inconstitucionalidad de la Ley Núm. 3, ordenemos la celebración de una vista ante un Comisionado Especial a los fines de determinar la edad de los demandantes y los años cotizados al Sistema de Retiro. Además, nos imploran que emitamos una orden de interdicto preliminar contra la Administración de Retiro, para prohibirle realizar gestión o trámite alguno sobre el retiro de los peticionarios hasta la adjudicación del presente recurso.
hH I—I
A. Antes de entrar a discutir el marco doctrinal que aplica a los reclamos de los demandantes, debemos expresarnos respecto a la procedencia de la petición de injunction preliminar que presentaron ante el TPI.
*866Cuando emitimos nuestra resolución de 11 de junio de este año, fuimos enfáticos en que “de no proveerse un remedio interlocutorio oportuno, los peticionarios se ver[í] an obligados a tomar decisiones drásticas que podrían ir desde renunciar a sus empleos y acogerse a un plan de pensión menor del esperado o continuar trabajando por años y acogerse a la nueva estructura de retiro provista por esa ley”.(2) Ciertamente, el TPI posee discreción para otorgar este tipo de remedios. 32 LPRA see. 3522. Sin embargo, ante la situación particular que presentan estos casos, era procedente que se emitiera un interdicto preliminar para paralizar los efectos de la Ley 3, en lo que se dilucidaba esta controversia. Elaboremos.
Como regla general, un interdicto para suspender los efectos de una ley es improcedente. Art. 678 del Código de Enjuiciamiento Civil, 32 LPRA see. 3524. No obstante, el citado precepto en su inciso (3) dispone, en lo pertinente, que:
[...] [Un] tribunal podrá dictar orden de entredicho provisional, injunction preliminar o permanente sujeto a los términos de la Regla 57 de Procedimiento Civil:
(a) En aquellos casos en que ello sea indispensable para hacer efectiva su jurisdicción y previa una determinación de que la orden es indispensable para evitar un daño irreparable a la parte peticionaria.
(b) Cuando en la petición se alegue que alguna persona, bajo la autoridad de alguna ley, ordenanza, o reglamento del Estado Libre Asociado de Puerto Rico, esté privando o sea el causante de que alguien esté privando al peticionario de algún derecho, privilegio o inmunidad protegido por la Constitución o las leyes del Estado Libre Asociado de Puerto Rico o por la Constitución o leyes de los Estados Unidos de América que sean aplicables a las personas bajo la jurisdicción del Estado Libre Asociado de Puerto Rico.
Disponiéndose, además, que al dictar dicha orden el tribunal debe considerar el interés público envuelto y concluir que la parte peticionaria tiene una posibilidad real de prevalecer en *867los méritos de su petición. Dicha orden sólo tendrá vigor en el caso específico ante el tribunal y entre las partes. (Enfasis nuestro).
El caso ante nuestra consideración involucra asuntos complejos que requieren una dilucidación seria y ponderada. Precisamente, por esa razón es que se le ordenó al foro primario que celebrara una vista evidenciaría. Así también, ante la postura del TPI de no celebrarla ni emitir remedio provisional alguno, se hacía necesario que hoy emitiéramos un interdicto preliminar paralizando la vigencia de la Ley Núm. 3, supra, para que este pleito se pudiera atender correctamente. Y es que no existía otra forma de evaluar responsablemente los reclamos de los demandantes en este caso. Sin ánimos de ser repetitivos, nos remitimos a todas las razones que para ello esbozamos en nuestra resolución del pasado 11 de junio. Como bien ex-presó el Juez Presidente hace pocos años, “[;ri\o haberles provisto a las partes una oportunidad adecuada de probar sus puntos de vista y disponer del caso sin el rigor que nos exige una controversia como la de autos, es a todas luces contraria al principio de igualdad procesal que debe regir todo proceso judicial [...] priva a los empleados públicos afectados de sus derechos adquiridos sin tan siquiera haberles provisto un proceso judicial completo y transparente”.(3) (Énfasis nuestro).
Concluido este primer asunto, entendemos que los hechos de este caso presentan una fuerte presunción de que los artículos de la Ley 3 que afectan los derechos adquiridos de los participantes del Sistema de Retiro mediante la *868Ley 447, supra, son inconstitucionales y, por ende, se hacía imperativo acceder a la petición de interdicto preliminar de los peticionarios. Pasemos ahora a exponer el derecho aplicable a los planteamientos constitucionales de los demandantes que a nuestro juicio operan con mayor fuerza en detrimento de la constitucionalidad de esas disposiciones.
B. Toda comunidad políticamente organizada tiene lo que se conoce como “police power” o poder público del Estado, que opera en función de salvaguardar la seguridad, la salud y el bienestar de sus habitantes. Domínguez Castro et al. v. E.L.A. I, 178 DPR 1, 36 (2010). Ese poder es amplio y responde a las circunstancias de cada caso. Así por ejemplo, la precariedad económica es “una realidad que necesariamente pesa en la definición del ámbito de la acción gubernamental bajo el poder de razón de Estado”. Id., pág. 37. Ahora bien, ello no implica que ese poder se pueda ejercer de manera omnímoda en ausencia de parámetros.
En Puerto Rico, la protección de las relaciones contractuales encuentra apoyo en el Art. II, Sec. 7 de nuestra Constitución, LPRA, Tomo 1, que prohíbe que se promulguen leyes que menoscaben las obligaciones contractuales. Esa disposición es análoga al Art. I, sec. 10 de la Constitución federal, LPRA, Tomo 1, por lo que al interpretar la nuestra, debemos mirar cómo el Tribunal Supremo federal ha evaluado esa cláusula. Tales decisiones constituyen las protecciones mínimas que nos vemos precisados a proveer en nuestro ordenamiento. Domínguez Castro et al. v. E.L.A. I, supra, pág. 80; Bayrón Toro v. Serra, 119 DPR 605 (1987). Cabe señalar que mediante ésta se protegen las obligaciones entre partes privadas como las contraídas por el Estado.
Es conocido que la cláusula contractual no constituye una prohibición absoluta, pues como ya mencionamos, el Estado tiene la facultad de reglamentar en favor del bienestar del pueblo. Bayrón Toro v. Serra, supra, pág. 619. En *869otras palabras, no prohíbe que se promulgue ninguna legislación que tenga el efecto colateral de menoscabar una obligación contractual pública o privada. U.S. Trust Co. of New York v. New Jersey, 431 US 1, 20-21 (1977). Lo que hay que observar es si el menoscabo sobrevive al escrutinio constitucional. Id.
Para evaluar las situaciones en que el Estado modifica sus propias obligaciones, el escrutinio que se emplea es más cuidadoso que el que se utiliza cuando el Gobierno interfiere en relaciones contractuales privadas. Es decir, es más severo. Véanse: Domínguez Castro et al. v. E.L.A. I, supra, pág. 81; Bayrón Toro v. Serra, supra; Warner Lambert Co. v. Tribunal Superior, 101 DPR 378 (1973). La función del foro judicial es evaluar la validez de la legislación estableciendo un balance entre el poder del Estado para salvaguardar el bienestar ciudadano y el interés de proteger las relaciones contractuales. Id.
Como cuestión de umbral, al analizar reclamaciones según esta doctrina es preciso auscultar si existe una relación contractual sobre la cual se reclama la protección. Domínguez Castro et al. v. E.L.A. I, supra, págs. 81—84; U.S. Trust Co. of New York v. New Jersey, supra. En ese ejercicio, procede examinar si la actuación estatal ha menoscabado sustancialmente esa relación. Id. Por último, el hecho de que eso haya ocurrido no implica que la actuación gubernamental se convierta ipso facto en inconstitucional. Id. La medida del Estado podría prevalecer si a pesar de menoscabar la relación contractual, es necesaria y razonable y persigue adelantar un propósito gubernamental importante. Id.
Expuesto este marco general, pasemos a discutir más detalladamente la doctrina.
1. Relación contractual entre el Estado y los servidores públicos demandantes
En el caso de autos la relación contractual que pretenden vindicar los demandantes deriva de la Ley 447, que *870creó el Sistema de Retiro. Ese estatuto, ¿puede considerarse como un acuerdo contractual entre el Estado y el empleado? Veamos.
Para propósitos de determinar que una legislación es inconstitucional en el contexto de que el Estado se obligó contractualmente con el demandante mediante cierta legislación, es necesario que de la medida en controversia se deriven derechos contractuales. NRPC v. Atchinson, T. & S.F.RY Co., 470 US 451, 466-467 (1985). Pues como regla general, las medidas legislativas no crean automáticamente una relación contractual con las personas beneficiadas por el estatuto de que se trate. Id.
No obstante, varios tribunales estatales han resuelto que los estatutos referentes a los sistemas de retiro dan génesis a una relación contractual.(4) Nuestra norma jurisprudencial nos lleva a la misma conclusión. De hecho, desde Bayrón Toro v. Serra, supra, rechazamos la teoría arcaica de que las pensiones de los empleados públicos retirados eran una mera dádiva del gobierno e hicimos hincapié en que estas constituían una obligación del Estado cimentada en bases de moral. Dijimos también allí que “los participantes de un Sistema de Retiro del Gobierno tienen un derecho adquirido de naturaleza contractual que surge con el ingreso del empleado al sistema, independientemente de que la participación sea voluntaria o compulsoria”. Id., pág. 618. Esta norma derrota cualquier *871alegación que pretenda convencemos de que no existen derechos adquiridos sobre la pensión antes de que el empleado se retire. Si fuera así, ¿por qué Bayrón Toro nos enfatiza que ese derecho adquirido de naturaleza contractual surge con el ingreso del empleado al sistema?
Tan recientemente como el año pasado en Pagán Santiago et al. v. ASR, 185 DPR 341, 352 (2012), reiteramos lo que habíamos colegido en Bayrón Toro respecto a que
“[e]l derecho a pensión de retiro por años de servicio del empleado público tiene un respetable contenido ético y moral y constituye un seguro de dignidad para el hombre o la mujer que habiendo dedicado al servicio público sus años fecundos, no debe encontrarse en la etapa final de su vida en el desamparo, o convertido en carga de parientes o del Estado”.(5) Pagán Santiago et al. v. ASR, supra, pág. 353.
Finalmente, acotamos que entre el Estado y el empleado existe un acuerdo de voluntades que produce un efecto jurídico vinculante para ambas partes, lo que hacía que el plan de retiro al amparo de la Ley 447, supra, fuera parte de ese contrato. Pagán Santiago et al. v. ASR, supra, pág. 353. Sostuvimos entonces que por esa razón “la Asamblea Legislativa no tiene facultad para menoscabar ese derecho adquirido de naturaleza contractual, o que ha sido ‘comprado’, por ese participante mediante aportaciones compulsorias provenientes de su salario”.(6) Id., pág. 354.
Nótese la connotación que se le da a la pensión de los empleados, impartiéndole características de un derecho adquirido fundamentado en una relación contractual. Esta es la norma establecida por este Tribunal hace años y que hasta hoy no ha sido revocada. Y aún en caso de que no existiera ese precedente, para evaluar el reclamo contractual procedería estudiar el lenguaje de la ley para ver si se *872desprende un intento legislativo de crear derechos de ese tipo. Véase NRPC v. Atchinson, T & S.F.RY. Co., supra.
En ese sentido, podemos mencionar como ejemplo la Ley Núm. 35-2007 (3 LPRA sees. 766 y 766d), que enmendó la Ley 447, supra, en varios aspectos. Entre las enmiendas se aumentó un 3% a las pensiones que allí se mencionaron. Esos aumentos se concedieron porque el legislador reconoció que “con el paso del tiempo, el aumento en el costo de vida conlleva una disminución relativa de las anualidades de lo(a)s pensionado(a)s”. Exposición de Motivos de la Ley Núm. 35-2007, 15ta Asamblea Legislativa, 5ta Sesión Ordinaria, pág. 1. Asimismo, añadió que de esa manera “el Gobierno enfrenta la obligación moral de ayudar a mejorar la condición de vida de los pensionados, personas que dieron lo mejor de su vida en el servicio al Pueblo de Puerto Rico”. íd.
Aprovechamos la coyuntura para plasmar la ironía de “la obligación moral” que existió para aumentarle un 3% a las pensiones de retiro en aquel entonces, pero que hoy no existe para garantizarles un retiro digno a los demandantes. Fíjese que a costa de esa y otras medidas poco analizadas es que esa “obligación moral”para con los retirados se desvanece entre las páginas de la Exposición de Motivos de la Ley 3, supra.
Así pues, quedando meridianamente claro que el precedente jurídico y las expresiones legislativas avalan la existencia de una relación contractual en cuanto a las pensiones de retiro, pasemos al siguiente asunto ante nuestra consideración.
2. Menoscabo sustancial de los acuerdos contractuales entre los servidores públicos y el Estado
Como regla general, la cláusula constitucional contra el menoscabo de las obligaciones contractuales se activa cuando la modificación afecta de manera adversa los términos esenciales que se tuvieron en cuenta al momento de contratar, de modo que se afecten las expectativas razona*873bles de las partes. Domínguez Castro et al. v. E.L.A. I, supra, pág. 83. Véase, también, Baltimore Teachers Union v. Mayor, 6 F.3d 1012 (4to Cir. 1993).
Cuando resolvimos Bayrón Toro v. Serra, supra, dictaminamos que ciertas enmiendas al Sistema de Retiro de los empleados de la Universidad de Puerto Rico no eran irrazonables. Se estableció los 55 años como la edad mínima de retiro, se redujo el importe de la pensión a los participantes que se jubilaran antes de los 58 años de edad y se aumentó la aportación de los participantes al fondo del sistema. En ese caso, antes de la enmienda todo participante aportaba mensualmente 4% de los primeros $350 de su sueldo, más, el 6.5% del sueldo restante. Luego de la enmienda, la aportación mensual de un 4% se aumentó a un 5% del sueldo mensual hasta la cantidad máxima cotizable al seguro social y en lugar de un 6.5 % se aportaría el 7% de la porción del sueldo en exceso de esa cantidad. Estos hechos, en nada se asimilan a la situación de los hoy demandantes, quienes verán sus beneficios reducidos dramáticamente.
En ese mismo caso, dijimos que cuando un empleado se ha retirado y cumple con todas las condiciones para el re-tiro, su pensión no está sujeta a menoscabo. Empero, antes de que ese empleado se acogiera al retiro, los términos del sistema podían enmendarse si las modificaciones eran razonables y con el fin de adelantar la solvencia del sistema. Y es que no debe ser de otra forma. La cláusula constitucional no le prohíbe al Estado poner en vigor medidas que tengan el efecto colateral de menoscabar una obligación contractual. Ahora bien, esto debe hacerse en los parámetros de la necesidad y razonabilidad.
3. Criterios de necesidad y razonabilidad
Un menoscabo contractual sustancial no es razonable si el problema que se intenta resolver mediante la medida impugnada existía cuando el Estado entró en la obligación contractual que se intenta proteger. Si ese problema previ*874sible se agravó con el tiempo, pero se agravó solo en cuanto al grado o magnitud, el menoscabo no es razonable. Véase U.S. Trust Co. of New York v. New Jersey, supra, pág. 31; Massachusetts Community College Council v. Com., 649 N.E.2d 708 (1955). Así se resolvió en Carlstrom v. State, 103 Wash.2d 391 (1985), cuando le correspondió al Tribunal Supremo de Washington dilucidar si por el hecho de haber declarado una emergencia fiscal, el Gobierno podía negarse a honrar sus acuerdos contractuales con la parte demandante. El Tribunal señaló que, aunque la situación financiera había empeorado, lo que ocurrió fue un cambio en el grado del problema y no en la clase o tipo de problema. También se concluyó que como las medidas impugnadas eran irrazonables no necesitaba abordar el cuestionamiento en cuanto a si eran necesarias.(7)
Por otra parte, en Singer v. City of Topeka, 607 P.2d 467 (Kan. 1980), el Tribunal Supremo de Kansas señaló que las modificaciones a los planes de pensión eran razonables si tenían una relación material con la esencia del sistema de retiro y si propendían a su administración exitosa. No obstante, cambios que resultaran en desventajas para los empleados debían venir acompañados con nuevas ventajas. Véase, además, Calabro v. City of Omaha, 247 Neb. 955 (1995). Ese análisis comparativo de desventajas y nuevas ventajas compensatorias debe enfocarse en el empleado que tiene el derecho a la pensión. Betts v. Board of Administration, 582 P.2d 614 (Cal. 1978).
Existe cierta controversia en los tribunales apelativos del circuito federal en cuanto a cuál de las partes tiene la carga probatoria para demostrar la ausencia o presencia *875de la necesidad y razonabilidad de la medida impugnada.(8) Varias interpretaciones han surgido a partir del caso normativo U.S. Trust Co. of New York v. New Jersey, supra. Allí el Máximo Foro federal hizo la expresión siguiente: “the State has failed to demonstrate that repeal of the 1962 covenant was similarly necessary”. Id., pág. 30.
En 2007, la Corte de Apelaciones de Estados Unidos para Cuarto Circuito resolvió que el demandante es quien debe demostrar que hubo un menoscabo contractual y que el Estado no ejerció legítimamente su poder de reglamentación. Catawha Indian Tribe of South Carolina v. City of Rock Hill, SC, 501 F.3d 368, 371 (4to Cir. 2007). Poco después, en Fraternal Order v. Prince George County, 645 F. Supp.2d 492, 508 (4to Cir. 2009), ese tribunal señaló:
To pass constitutional muster, however, a State, or as in the present case, a County, when exercising this power, by enacting legislation that constitutes a substantial impairment of its own contracts, must demonstrate that the legislation is “reasonable and necessary to serve an important public purpose”.
Sin embargo, hace poco en United Auto., Aerospace, Agr. Implement Workers of America Intern. Union v. Fortuño, 633 F.3d 37, 45-47 (1er Cir. 2011), el Primer Circuito le impuso la carga de la prueba a la parte que reclama que el menoscabo a la obligación contractual no era razonable ni necesario. Pero, tan reciente como el año pasado, el cuarto circuito en Cherry et al. v. Mayor and City Council of Baltimore,(9) expresó:
[...] However, the Fortuño court addressed the matter in the initial pleading context, holding that generalized allegations of illegitimate purpose and the existence of other alternatives are insufficient to allege a plausible claim that challenged legislation was not reasonable and necessary to serve an impor*876tant public purpose. In sum, the Court finds the burden of proof issue unresolved, at least for courts outside the First Circuit.
In any event, the Court will assume that Plaintiffs have the burden of proving that the impairment of their contract rights by the Ordinance was not “reasonable and necessary to serve an important public purpose.” As discussed herein, Plaintiffs have carried that burden, if they had it. (Escolio omitido).
Si bien el Tribunal concluyó que los demandantes habían cumplido con su carga probatoria, si alguna, dejó constar lo siguiente:
If required to predict the burden of proof allocation that would be adopted by the appellate courts, the Court would find a useful analogy in the McDonnell Douglas burden of proof scheme. Mc Donnel Douglas Corp v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973). Therefore, consistent with the First Circuit decision in Fortuno, the Court would impose a threshold burden on a plaintiff to plead (and ultimately to prove) facts sufficient to create a prima facie case that an impairment was not “reasonable and necessary to serve an important public purpose”. Then, the ultimate burden would be on the plaintiff to disprove the government unit’s asserted basis for contending that the impairment was “reasonable and necessary to serve an important public purpose”. Id., esc. 15.
Así mismo lo concluyó el Juez Presidente señor Hernández Denton hace poco más de tres años al interpretar U.S. Trust Co. of New York v. New Jersey, supra, expresó lo siguiente:
[e]n cuanto a la valoración de los elementos de razonabilidad y necesidad de una medida impugnada en casos como el de autos, el máximo foro federal resolvió que no procede otorgarle deferencia absoluta al juicio legislativo cuando el propio interés del Estado está en juego. Lo contrario, razonó el Tribunal Supremo federal, implicaría que la cláusula constitucional contra el menoscabo de las obligaciones contractuales no proveería protección alguna y, en esencia, sería letra muerta. Por lo tanto, el Estado debe probar en los tribunales que la medida es razonable y necesaria. (Enfasis en el original suprimido, énfasis suplido y citas omitidas). Domínguez Castro et al. v. E.L.A. I, supra, pág. 104, opinión disidente del Juez Presidente Señor Hernández Denton.
*877En ese proceder de evaluar la razonabilidad y necesidad de una medida que menoscaba una obligación contractual —aunque con un alcance algo indefinido— el Estado disfruta de una limitada deferencia que se le debe al criterio de la Legislatura en relación a si la obligación contractual debe perjudicarse. U.S. Trust Co. of New York v. New Jersey, supra, pág. 26. Cuando se alega que el Estado menoscabó un contrato público del cual es parte, la determinación de razonabilidad y necesidad de la Asamblea Legislativa merece menos deferencia. Id. Una deferencia completa en estos casos no es apropiada porque es el propio interés del Estado el que está en juego. Id. Aporta a la determinación final de razonabilidad de la medida el hecho de que la legislación impugnada se promulgue debido a una situación de emergencia y que su aplicación sea temporal o transitoria. Domínguez Castro et al. v. E.L.A, I, supra, pág. 85. No obstante, la existencia de un interés público importante no es suficiente para prevalecer en cuanto a la limitación constitucional. U.S. Trust Co. of New York. v. New Jersey, supra, pág. 21. No se sostendrá el menoscabo de una obligación contractual si para alcanzar el objetivo perseguido por el Estado existen otras medidas alternas menos severas. Id., pág. 27.
Ante este marco normativo discutamos por qué entendemos que las secciones de la Ley 3 que afectan los derechos adquiridos de los participantes del Sistema de Retiro bajo la Ley 447, presentan una fuerte presunción de inconstitucionalidad.
III
A. La Ley 3 menoscaba sustancialmente la relación contractual entre los demandantes y el Gobierno de Puerto Rico
Comencemos explicando a rasgos generales cómo opera el sistema de retiro de los demandantes.
*878La Ley 447 creó el Sistema de Retiro de los empleados del Gobierno de Puerto Rico en 1951, con un programa de retiro de beneficios definidos.(10) Este tuvo el propósito de garantizarles a sus participantes un ingreso sustentable una vez concluida su carrera en el servicio público. El Sistema se nutre de las contribuciones individuales de cada uno de los participantes y se considera un fideicomiso, ya que los fondos deben utilizarse “en provecho de los miembros participantes de su matrícula, sus dependientes y beneficiarios, para el pago de anualidades por retiro y por incapacidad, anualidades y beneficios por defunción y otros beneficios”. 3 LPRA sec. 761. Véanse: Pagán Santiago et al. v. ASR, supra, pág. 352; Aquino González v. A.E.E.L.A., 182 DPR 1 (2011).
El Sistema tiene tres estructuras de beneficios: (1) el plan de retiro según la Ley 447 para los participantes que entraron al Sistema antes de 1 de abril de 1990 y al cual pertenecen los peticionarios; (2) la estructura mediante la Ley Núm. 1 de 16 de febrero de 1990, supra, y (3) el plan de retiro conocido como Reforma 2000 para aquellos participantes que entraron al Sistema a partir del 1 de enero de 2000.
Ahora bien, con la aprobación de la Ley 3, se crea un nuevo sistema de retiro a base de un Programa Híbrido de Contribuciones Definidas. El sistema nuevo elimina por completo el criterio de mérito por años de servicio y también aumenta la edad de retiro a 61 años para los empleados cobijados por la Ley 447. Ciertamente, esta es la primera vez que el Gobierno aplica cambios sustanciales de forma retroactiva a los planes de retiro de sus servidores *879públicos. A pesar de que en 1990 ese principio de mérito fue eliminado para los nuevos empleados, los peticionarios continuaron bajo el sistema pactado al momento de su reclutamiento. Es decir, los cambios anteriores se han realizado de forma prospectiva sin menoscabar los intereses de los que ya eran participantes y sus derechos adquiridos a través de los años.
Contrario a lo que ha sido la práctica en el pasado, las enmiendas aprobadas mediante la Ley 3 implican un aumento drástico en la cantidad de tiempo que tendrán que trabajar los empleados para cualificar y poder retirarse. Aun así, después de esos años adicionales de servicio, solo tendrán derecho a una pensión considerablemente menor a la pactada al momento que ingresaron al Sistema de Retiro. Todo ello constituye un menoscabo sustancial y severo a su relación contractual con el Estado.
B. El fin público que se intenta alcanzar con la Ley Núm. 3 y la razonabilidad de esa medida.
Ciertamente, alcanzar la estabilidad del Sistema de Re-tiro es un fin público de gran envergadura y es sumamente apremiante atender esa crisis. Ahora bien, las medidas que aquí se impugnan, ¿son razonables y necesarias?
Cuando el TPI analizó el reclamo de los demandantes sobre si la Asamblea Legislativa consideró alternativas menos onerosas para atender el problema fiscal del Sistema, este foro concluyó que “la determinación del Legislador en cuanto a la serie de medidas escogidas constituye un ejercicio de política pública, que merece deferencia [...] por lo que no corresponde realizar una determinación de novo sobre la misma”. Tiene razón el foro primario en que el criterio de razonabilidad y necesidad del legislador merece deferencia. Domínguez Castro et al. v. E.L.A. I, supra, pág. 85. Pero como ya explicamos, cuando se trata de casos en los que el Estado es parte de la obligación contractual, ese análisis es más cuidadoso. Lo mínimo que eso implica es que se debe ponderar adecuadamente si lo que el legis*880lador impregnó en la ley es razonable y necesario para alcanzar el fin público que se busca. No se puede dar deferencia al criterio legislativo meramente porque el legislador opina que la medida es razonable. Hay que evaluar si existían alternativas menos onerosas, si el problema que se intenta remediar era conocido o desconocido, si se compensan los daños causados, entre otras cosas. Lo contrario equivaldría a obviar toda la norma jurisprudencial que hemos discutido que señala que el foro judicial debe justipreciar esos criterios lo que sería muy conveniente para el Estado.
Para que esto se lograra se hacía necesario emitir un injunction preliminar y ponderar la prueba pertinente.(11) Por ello entendemos que, ante el menoscabo sustancial que evidentemente han sufrido los demandantes, le correspondía al Estado presentar prueba de que las medidas impugnadas eran necesarias y razonables como bien lo puntualizó el Juez Presidente en su opinión disidente de Domínguez Castro. En cuanto a esto encontramos muy acertadas las expresiones que se hicieron en Cherry et al. v. Mayor and City Council of Baltimore, supra, disponiendo que una vez los demandantes demostraran que sufrieron un menoscabo sustancial, la carga probatoria pasa al Estado. Así pues, le correspondía al Estado probar en este caso que era necesario y razonable afectar tan dramáticamente las pensiones de los empleados que ya estaban a punto de retirarse. También debía demostrar que era razonable y necesario obligarlos a trabajar un sin número de años adicionales para al final recibir menos beneficios.
Cónsono con lo anterior, una razón por la cual entendemos que las secciones de la Ley 3 que afectan los derechos adquiridos de los participantes del Sistema de Retiro según la Ley 447 son irrazonables es debido a que los proble*881mas que intenta remediar no eran desconocidos para el Estado cuando entró en una obligación contractual con sus empleados mediante la Ley 447. Esto requiere que dediquemos algunas líneas para explicar con detalle a lo que nos referimos.
El Sistema de Retiro ha carecido de una buena planificación así como de un sistema de contribución eficiente desde sus inicios en 1951. Surge del estudio intitulado Review of the Events and Decisions That Have Led to the Current Financial Crisis of the Employees Retirement System of the Government of Puerto Rico, que la estructura del sistema ha estado arruinada por años.(12) No obstante, se señala qué acciones que se realizaron en el periodo de 2004 a 2008 han exacerbado el deteriorado estado fiscal del sistema.(13) Entre estas, la emisión de los bonos de obligaciones de pensión o Pension Obligation Bond Transactions (POB, por sus siglas en inglés), los programas o ventanas de retiro temprano,(14) el incremento en la cuantía permitida de préstamos personales, procedimientos inadecuados y las leyes especiales de concesión de beneficios para retirados, a saber, bonos de verano, bonos para medicamentos, aguinaldo de Navidad, ajustes por costo de vida, entre otros.(15)
*882Específicamente, el estudio critica severamente el aumento en la cantidad permitida por préstamo personal contra los fondos de retiro, de $5,000 a $15,000.(16) Esto, porque ello tuvo un efecto nefasto sobre la liquidez del sistema. De las entrevistas realizadas por los investigadores a varios empleados clave, se llegó a la conclusión de que al permitir ese cambio en 2007, no se ejerció el debido cuidado por la administración y la Junta de Directores.(17) No constaban en archivos análisis documentados ni información que indicara que incrementar la cuantía de los préstamos personales era un paso fundamentado, hecho con el debido análisis que revelara el impacto que ello tendría sobre la salud financiera del sistema. Esa documentación nunca apareció, y es que, según los propios empleados del sistema, esos análisis nunca se realizaron.(18)
De otra parte, en 2008, los POB se aprobaron para resolver el problema de liquidez del Retiro. Al emitir los bonos se incrementarían los activos del sistema y, por ende, el coeficiente de financiación, el cual se esperaba aumentara en un 70% según se estimó. Sin embargo, ese efecto nunca se alcanzó. Surge que los cálculos realizados para verificar el resultado de esa emisión sobre el coeficiente de financiación fueron erróneos, pues ignoraron la deuda en la que consistió la emisión. Realmente, el incremento sería en un 9.7%, un porcentaje drásticamente menor al estimado por el Sistema de Retiro durante el proceso de emisión. Esta crasa falta llevó a los autores del estudio a *883cuestionar cómo los responsables en la toma de decisiones entraron en este tipo de transacción, y se les escapó un paso tan fundamental en el método de cómputo del coeficiente de financiación.(19) Según establece el estudio, los riesgos de esa decisión no se midieron o no se entendían, lo que indica que tanto la gerencia como la Junta de Síndicos del Sistema de Retiro y la Junta de Directores del Banco Gubernamental de Fomento fueron negligentes. El arreglo de la liquidez del sistema a corto plazo realmente provocó un problema mayor que ha resultado en grandes costos que se pagarán en décadas por venir.(20) Precisamente, en consideración a ello, se recomendó en el informe que las autoridades correspondientes realizaran más investigaciones sobre la toma de decisiones que permeó el proceso de la emisión de bonos en 2008.(21) Hasta ahora, lo único que sabemos es que la factura se le pasó a quien no tuvo la culpa: los servidores públicos que hicieron sus aportaciones y confiaron el fruto de su trabajo a un sistema mal manejado.
Entre otros errores administrativos, que ahora paga el pueblo, resaltamos que varias leyes especiales que otorga*884ban beneficios se aprobaron ignorando las metas de reforzar el sistema, de manera que este contara con fuentes suficientes de fondo a largo plazo. Entre ellas, algunas fueron la Ley Núm. 524-2004, la Ley Núm. 144-2005 (3 LPRA sec. 761 n. y 18 LPRA sec. 383) y la Ley Núm. 35-2007, supra. De esta forma, los beneficios especiales, los cuales no son un componente explícito del Sistema de Retiro han sido cubiertos con sus activos. Esto, pues, el Fondo General, las corporaciones públicas y municipios han faltado a su responsabilidad de pagar los beneficios concedidos por estas leyes especiales.(22) Tanto así que para jimio de 2009, los beneficios provistos por las leyes especiales ocupaban $2.3 billones de $19 billones en deudas actuariales del sistema.
Como vemos, es más que obvio que el Estado conocía la crisis por la que atraviesa la Administración del Sistema de Retiro cuando contrató con los demandantes. Es cierto que la estabilización del Sistema de Retiro no deja de ser un “propósito público importante” por el hecho de que era previsible la severa crisis que se intenta remediar mediante la Ley 3. Sin embargo, las enmiendas impugnadas no son razonables al analizarlas desde esta perspectiva. El hecho de que exista un deseo genuino de aminorar ese problema no implica que automáticamente la Ley 3 sea razonable en toda su extensión. Véase U.S. Trust Co. of New York v. New Jersey, supra.
Así también, si analizamos las medidas impugnadas de la Ley 3, examinando las ventajas y desventajas es más que predecible el resultado. La desventaja que se legisla no viene acompañada de ningún beneficio, como se ha resuelto en algunas jurisdicciones estatales. Todo lo contrario, quedan desamparados con la ínfima pensión que recibirán.
*885Por otra parte, en cuanto a los criterios de razonabilidad y necesidad el Estado alega que este caso es similar a Domínguez et al. Castro v. E.L.A. I, supra, donde se evaluó la constitucionalidad de la Ley 7. En ese caso es que se am-para una mayoría de este Tribunal para darle la espalda a los servidores públicos puertorriqueños. Veamos cómo un examen de las dos medidas legislativas nos lleva a concluir que la pauta allí establecida no es óbice para que atendamos los reclamos de los demandantes.
C. “Domínguez Castro v. E.L.A. I” es distinguible del caso de autos
Hoy, una mayoría de este Tribunal fundamenta su decisión en un análisis equivocado del caso Domínguez Castro et al. v. E.L.A. I, supra. Ese caso trataba sobre el Plan Integrado de Estabilización que incluía despidos de empleados públicos al amparo de la Ley Núm. 7-2009, según enmendada, denominada como la Ley Especial Declarando Estado de Emergencia Fiscal y Estableciendo Plan Integral de Estabilización Fiscal para Salvar el Crédito de Puerto Rico.
Contrario a lo que concluye la mayoría, los hechos en Domínguez Castro no representan la misma situación que en el caso de autos. La Opinión del Tribunal se recuesta de los fundamentos de ese precedente, pero se equivoca al ignorar las diferencias básicas entre ambos estatutos. Veamos.
En Domínguez Castro esta Curia estableció que la ley era razonable y necesaria y que la razón principal para su aprobación era la crisis fiscal que existía y que le impedía al Gobierno incluso pagar la nómina gubernamental en ese momento. Allí la Asamblea Legislativa realizó un análisis de otras medidas que fueron presentadas y evaluadas conjuntamente con las medidas propuestas en esa ley. Sobre este particular el tribunal resolvió haciendo alusión a la Exposición de Motivos de la Ley Núm. 7-2009:
*886“Todas las alternativas típicamente usadas como pasos previos a la reducción de personal [o sea] traslados, reubicaciones, readiestramientos, licencias sin sueldo y reducción de jornada, entre otros no son viables dentro del contexto de la magnitud del déficit estructural del Gobierno y la precariedad de la situación. Es necesario reducir dramáticamente y de forma expedita, el gasto gubernamental. En vista del tamaño de la nómina y del tamaño del déficit, ninguna de las demás alternativas es compatible con este objetivo o no son viables ante su impacto sobre la operación del Gobierno. Los traslados, las reubicaciones y los readiestramientos meramente transfieren el empleado y, por consiguiente, el gasto de un lado a otro. La reducción general de jornada y mucho menos las licencias sin sueldos, no son alternativas viables pues tendrían que ser de tal magnitud y duración que impactarían gravemente la gobernabilidad de la Rama Ejecutiva”.
Por otro lado, y como bien se explica en la Exposición de Motivos de la ley, el establecer medidas impositivas únicamente, tampoco es una alternativa viable. De manera que, la Asamblea Legislativa, como funcionarios electos y legítimos representantes del Pueblo de Puerto Rico, determinaron que la imposición al contribuyente de los recaudos necesarios para cerrar una brecha de $3,200 millones en el déficit ahogarían a la ciudadanía y hundirían a Puerto Rico en una depresión catastrófica. (Enfasis en el original suprimido, énfasis suplido, corchetes en el original y escolio omitido). Domínguez Castro et al. v. E.L.A. I, supra, págs. 61-62.
Como puede observarse, en aquella ocasión validamos la razonabilidad y necesidad de la Ley Núm. 7-2009 debido a que esta se aprobó luego de evaluar otras alternativas y determinar que estas no podrían resolver la crisis fiscal de aquel momento. En otras palabras, las medidas impuestas al amparo de la Ley Núm. 7-2009 eran las menos onerosas en las alternativas disponibles para lograr el fin propuesto.(23)
*887Ahora bien, a diferencia de la Ley Núm. 7-2009 en esta Ley Núm. 3-2013 no surge de la Exposición de Motivos cuales fueron las gestiones hechas durante el proceso legislativo para evaluar otras alternativas menos onerosas que pudiesen resolver la crisis que afecta al Sistemas de Retiro. Lo que sí surge de la exposición de motivos es que, distinto al panorama de insolvencia económica que imperaba en momentos que se aprobaba la Ley Núm. 7-2009 el Gobierno no tenía la solvencia económica para pagar la nómina gubernamental en ese momento, el Sistema de Re-tiro tiene fondos suficientes para cubrir sus gastos hasta el 2018. Por tal razón, era imperativo que se estudiara esta situación con más detenimiento y se evaluaran otras alternativas, previo a la aprobación de la ley.
No obstante, a pesar de presentar una variedad de razones que llevaron a los problemas fiscales que atraviesa el Sistema de Retiro, la ley se limita, exclusivamente, a disminuir los beneficios de los empleados. No se menciona en toda la Ley 3 una sola alternativa que haya sido considerada y que las aprobadas finalmente fueran las menos onerosas. Todo ello, en clara distinción a la Ley Núm. 7-2009.
Por otro lado, la Ley Núm. 7-2009 establecía tres fases que ofrecían diversas opciones en beneficio de los empleados que voluntariamente se acogieran a estas. Así pues, en la Fase 1 de implementación, el empleado o empleada tenía la opción de: (1) acogerse a una reducción permanente de jornada si contaba con más de veinte años de servicio, de hacerlo, recibiría un incentivo económico; (2) renunciar voluntariamente, recibiendo ayudas incluyendo que el Gobierno subsidiaría el primer año de su sueldo en el sector privado o en alguna organización sin fines de lucro, además de brindar incentivos económicos según el tiempo que llevaba trabajando; (3) vales educativos para que finaliza*888ran sus estudios; (4) vales de adiestramiento para que aprendieran las herramientas necesarias que les permitiera reintegrarse a la fuerza laboral; (5) recibir subsidio económico de plan médico hasta por un año; (6) el pago de gastos de relocalización si el cambio requería una mudanza, y (7) vales para establecer un negocio propio.
La Fase II, por su parte, comenzaría con despidos de empleados irregulares o transitorios, pasando luego a los regulares, de ser necesario, y siguiendo el principio de antigüedad. Los empleados afectados bajo esta fase recibirían el pago del plan médico por seis meses y podían participar en el Programa de Alternativas al Empleado, además de ser incluidos en un registro de elegibles por el cual tendrían prioridad sobre otros candidatos para ser contratado en una agencia en la que se desempeñaran labores similares. Es decir, la Ley Núm. 7-2009 creó un registro de reingreso al gobierno con prioridad para aquellas personas cesanteadas.
Finalmente la Fase III incorporaba dos medidas adicionales: (1) la congelación de aumentos, beneficios marginales o compensación adicional, y (2) la suspensión de ascensos, traslados y movimiento de personal.
Distinto a la Ley 3, la Ley Núm. 7-2009 era de carácter temporero y su vigencia fue de dos años. Por el contrario, las enmiendas aprobadas al Sistema de Retiro condenan a miles de servidores públicos a un nuevo estado de pobreza y de marginación social. No existe un periodo de orientación o de espera suficiente para que el empleado pueda tomar una decisión ponderada que le permita lidiar con un cambio tan súbito en sus planes de vida, tanto emocional como financieramente.
Por otro lado, diferente a la Ley Núm. 7-2009, los empleados no tienen otra alternativa, más allá de retirarse para no perder beneficios pactados previamente como el pago de plan médico y el bono de navidad. Tampoco existen medidas para compensar de alguna manera el menoscabo *889de las relaciones contractuales de los empleados por parte de la aprobación de esta ley. No hay vales, ni posibilidades de readiestramiento, ni incentivos, ni subsidios para empresas del sector privado que puedan contratarle. No existe compensación alguna que aminore los severos daños que sufrirán los demandantes a causa del menoscabo de sus expectativas contractuales con el Gobierno. Estos daños cobran más fuerza en el caso de los miembros de la fuerza policiaca, quienes no cotizan para el Seguro Social y que, por mandato de ley, deben retirarse a los 58 años de edad. La medida impugnada no contiene disposición alguna que intente aminorar los vejámenes y vicisitudes que tendrán que enfrentar los peticionarios.
Cabe señalar, además, que un importante pronunciamiento en Domínguez Castro et al. v. E.L.A. I, supra, fue la inaplicabilidad del Art. 3 del Código Civil, 31 LPRA sec. 3, que dispone que “[e]n ningún caso podrá el efecto retroactivo de una ley peijudicar los derechos adquiridos al amparo de una legislación anterior”. Entonces resolvimos que un empleado despedido por virtud de la Ley Núm. 7-2009 no podía “hablar de un derecho adquirido a la retención o a no ser cesanteado de un empleo en el servicio público, pues se encuentra ausente el elemento del amparo de una ley anterior que hubiese concedido tal derecho”. (Enfasis nuestro y en el original). Domínguez Castro et al. v. E.L.A. I, supra, págs. 69—70. Es decir, en ausencia de orna ley que los protegiera, el Art. 3 del Código Civil, supra, no los cobijaba.(24)
La situación de los peticionarios y sus derechos al amparo de la Ley 447 es ampliamente distinta. Estos claramente tienen sus derechos garantizados por una ley anterior. Si bien podría argumentarse que ese derecho se activa una vez el empleado se retira y comienza a devengar *890su pensión, ciertos pronunciamientos de Bayrón Toro v. Serra, supra, nos motivan a rechazar ese planteamiento.
En ese caso señalamos que “los participantes de un Sistema de Retiro del Gobierno tienen un derecho adquirido de naturaleza contractual que surge con el ingreso del empleado al sistema, independientemente de que la participación sea voluntaria o compulsoria”. Bayrón Toro v. Serra, supra, pág. 618. La naturaleza contractual y el tratamiento que se le ha impartido a la relación que existe entre los empleados públicos y el Gobierno varían en las distintas jurisdicciones estatales. Pero aquí en Bayrón Toro concluimos que los participantes de un sistema de retiro tienen un derecho de naturaleza contractual desde que ingresan al Sistema, eso quiere decir, desde que comenzaron a cotizar para este. De esta forma, todo menoscabo a ese derecho debe pasar el crisol de la razonabilidad y necesidad.
Igualmente, es preciso recordar que la Quinta Enmienda de la Constitución de Estado Unidos establece: “[N]or shall private property be taken for public use, without just compensation”. Asimismo, nuestra Carta Magna dispone en su Art. II, Sec. 9, en lo pertinente, que: “No se tomará o perjudicará la propiedad privada para uso público a no ser mediante el pago de una justa compensación y de acuerdo con la forma provista por ley”. LPRA, Tomo 1, ed. 2008, pág. 323.
En casos sobre controversias de legislaciones que afectan los sistemas de pensiones de empleados públicos es común que se hagan planteamientos sobre incautación en conjunto a reclamaciones bajo el menoscabo de relaciones contractuales. En ese contexto, el interés del empleado en las promesas contractuales puede constituir un derecho propietario cuando estas estén protegidas por la cláusula del menoscabo de las relaciones contractuales o la doctrina *891estatal sobre el sistema público de pensiones.(25) J.M. Beermann, The Public Pension Crisis, 70 Wash. & Lee L. Rev. 3, 63-64 (2013). El Tribunal Supremo de Estados Unidos ha señalado que los intereses propietarios se extienden más allá de las formas tradicionales de propiedad, tales como el dinero, inmuebles, entre otros bienes. Regents v. Roth, 408 U.S. 564, 577 (1972). A esos efectos, la Corte Suprema ha expresado que:
[...] To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead have a legitimate claim of entitlement to it.
Asimismo, hemos expresado que son factores que determinan la existencia de un interés propietario el hecho de que un interés esté protegido por ley o que las circunstancias creen una expectativa de continuidad. Domínguez Castro et al. v. E.L.A. I, supra. De esa forma, al considerar la constitucionalidad de las enmiendas legislativas a los planes de pensiones la determinación sobre los derechos adquiridos de un empleado yace en si este tiene suficientes años de servicio en el sistema y si ha descansado o confiado sustancialmente en el recibo de tales beneficios contratados. Véanse: Booth v. Sims, 456 S.E.2d 167, 181 (1995); J.M. Beermann, The Public Pension Crisis, 70 Wash. & Lee L. Rev. 3, 40 (2013).
Los demandantes ciertamente tienen un derecho propietario sobre su pensión según acordada y sobre las aportaciones hechas al sistema. Véase Bayrón Toro v. Serra, supra, pág. 612. Pero el reclamo de los empleados cobijados *892por la Ley 447, supra, descansa en que con el pasar del tiempo confiaron en que a través de su esfuerzo laboral y sus aportaciones obtendrían los beneficios acordados contractualmente al alcanzar las edades dispuestas en la disposición. Después de todo, su seguridad económica y su calidad de vida están de por medio y ello tendrá un efecto social que de una forma u otra padeceremos todos.(26) Estas enmiendas despojan a los participantes de sus derechos adquiridos a recibir una pensión completa y su expectativa sobre la fecha para acogerse al plan de retiro.
En fin, surge con meridiana claridad que el análisis de la constitucionalidad de la Ley tiene que realizarse distinguiéndolo considerablemente del examen elaborado en Domínguez Castro y la evaluación de razonabilidad y necesidad de la Ley Núm. 7-2009. Hacer lo contrario denota una equívoca metodología adjudicativa sin precedentes. Para dar la atención meritoria a estos asuntos tan sensitivos y de vital importancia para la estabilidad social y económica de estas personas, era necesario auscultar responsablemente los reclamos de los peticionarios.
La opinión de la mayoría, Per curiam, pág. 831, señala que “[a]nte este dilema, examina [ron] cuidadosamente los recursos presentados a la luz de nuestro ordenamiento constitucional [...]”. Respetuosamente dudamos de esa aseveración, pues “para determinar los hechos relevantes, la opinión mayoritaria se sustenta exclusivamente en la Ex-posición de Motivos y acepta, sin prueba, [...] que no existe otra opción para corregir el déficit”.(27) “En otras palabras, *893la mayoría de este Tribunal no tomó en consideración posiciones distintas a la adoptada por la Legislatura, porque no hubo oportunidad para recibir y dirimir prueba en un Foro de Primera Instancia o administrativo”.(28) (Enfasis en el original). Esto, pues “lo único que hay en los expedientes de los casos es la demanda, el recurso de certificación y las mociones interlocutorias” (énfasis suprimido),(29) y de esta forma la mayoría quiere “apresurarse a resolver el asunto constitucional”.(30) “Un análisis somero de los ex-pedientes de los recursos consolidados nos permite percibir que las controversias que se presentan no tan sólo son complejas, sino múltiples y diversas”.(31)
Cada uno de estos asuntos pudo requerir la intervención del foro administrativo o del Tribunal de Primera Instancia para dirimir la prueba y crear un expediente que permitiera la labor efectiva de los foros apelativos, incluyendo la de este Tribunal Supremo. Es axiomático que el derecho no se aplica en el vacío, requiere de hechos que sirvan de base para aplicar las normas. (Énfasis suprimido).(32)
Tal como dijimos en nuestra resolución del pasado 11 de junio “los intereses públicos involucrados en estos casos son excepcionales. Los peticionarios han hecho unos planteamientos que merecen una consideración seria y pronta”. (Énfasis suplido). Alvarado Pacheco y otros v. ELA., 188 DPR 594, 623 (2013). “La Ley Núm. 3, supra, entra en vigor en poco menos de un mes y, de no proveerse un remedio interlocutorio oportuno, los peticionarios se verán obligados a tomar decisiones drásticas [...] las repercusiones de estos casos pueden afectar a los peticionarios por el resto de sus días”. (Énfasis suplido). Resolución del Tribunal Supremo de 11 de junio de 2013, María del C. Alvarado Pacheco et *894al. v. E.L.A., CT-2013-05/06/07. Las Juezas Asociadas Señoras Rodríguez Rodríguez y Fiol Matta emitieron votos particulares disidentes. El Juez Presidente Señor Hernández Denton emitió un voto particular disidente. El Juez Estrella Martínez emitió un voto particular y disintió en que no se expidieran en aquel momento los autos de epígrafe.
Es insostenible que hoy una mayoría de este Foro se olvide de todas esas y otras tantas palabras. Cómo mínimo este Tribunal debió proveerles a los demandantes la oportunidad de que presentaran su caso, cumpliendo cada parte con su carga probatoria. Hace poco este Tribunal en Lozada Sánchez et al. v. JCA, 184 DPR 898 (2012), se ex-presó muy acertadamente respecto a cómo deben decidir los jueces. Allí dijimos:
En tiempo reciente no hemos vacilado en indicar que a “los jueces no nos puede dominar el temor a decidir” [...] Ahora, tenemos que añadir que la imparcialidad debe ser la piedra angular que guíe nuestros razonamientos, sin importar quiénes sean las partes ni la empatia que sus planteamientos nos provoquen. Eso implica que si bien nuestras ideas y experiencias influyen en nuestro análisis al momento de adjudicar una controversia, debemos analizar los argumentos de las partes involucradas como lo haría la famosa Dama de la Justicia, con la mayor objetividad que nuestra condición humana nos permita. En esta coyuntura, conviene recordar cómo Juan Carlos Mendonca describe el mandamiento judicial de la imparcialidad:
[...] El litigante lucha por su derecho, en tanto que tú luchas por el derecho; y esto no debes olvidarlo nunca. No te dejes llevar por sus simpatías o antipatías, por conveniencias o compasiones, por temor o misericordia. La imparcialidad implica el coraje de fallar contra el poderoso, pero también el valor, mucho más grande, de fallar contra el débil. (Citas omitidas), íd., pág. 926.
IV
Todo lo que hemos enunciado nos lleva a la conclusión de que algunas secciones la Ley 3 son irrazonables, lo que *895nos sugiere están revestidas de fuertes visos de inconstitucionalidad. Los problemas que se intentan remediar con esa medida no eran desconocidos para el Gobierno de Puerto Rico a través de las décadas en que mantuvo a sus servidores públicos a la expectativa de que tendrían un retiro digno y justo. Tampoco se les compensa con algún tipo de beneficio la severidad del menoscabo en sus expectativas de retiro. Para evaluar esta controversia con más detenimiento y responsabilidad era necesario que emitiéramos el injunction preliminar que nos solicitaron los peticionarios para paralizar la aplicación de esa ley.
Según expresé recientemente, “[el] último foro representativo del Poder Judicial, no puede callar mientras se diseña el escenario perfecto para un ardid contra el pueblo de Puerto Rico”.(33) Hoy, lamentablemente la mayoría de esta Curia por razones que, en su consciencia llevarán, han desatendido su responsabilidad con nuestros ciudadanos. A mucho pesar, ciertamente es un día lúgubre para las familias y el pueblo puertorriqueño. Ahora me resta esperar que en un futuro quienes ocupen posiciones de liderato en el servicio público nunca olviden que la persona no está en función del sistema económico, sino que es el sistema económico el que está en función de la persona.
Hoy el Estado plantea enérgicamente que este Tribunal no debe pasar juicio sobre la sabiduría legislativa que se empleó cuando la Asamblea promulgó la Ley 3. Quieren total deferencia. Sin embargo, nos preguntamos si esa misma sabiduría legislativa fue o pudo ser un factor determinante de la crisis que hoy se intenta resolver a costa del empleado público. En esto son pertinentes las palabras que hace más de dos décadas plasmó el entonces Juez Asociado Alonso Alonso en su voto particular en Bayrón Toro v. Serra, supra, pág. 624:
*896[e]l Estado no debe justificar cambios al sistema de retiro al alegar que son necesarios y razonables para mantener la solvencia económica de éste cuando la debilidad fiscal del mismo se debe al descuido y a la falta de cuidado del Estado propiamente.
En cuanto a esto también es preciso que hagamos cons-tar cierta preocupación de los demandantes, la cual transcribimos según ellos mismos la han expresado:
[germinamos indicando que el planteamiento mediático de los demandados de que la responsabilidad del crédito de Puerto Rico está en manos del Tribunal Supremo es absurdo y más aún, un medio de presión del Ejecutivo para obtener su propósito. Es imperioso e indispensable recordar la separación de poderes, que a su vez implica una separación de responsabilidades, de nuestro sistema democrático. El rol de los Tribunales en el sistema judicial no es proveer las alternativas para resolver la crisis fiscal de la Isla ni del Sistema de Retiro. El rol es asegurarse que en el descargue de sus poderes, las demás ramas de gobierno, a quienes sí les corresponde buscar alternativas, no se excedan de las facultades conferidas por ley ni incidan inconstitucionalmente sobre los derechos adquiridos de las personas a quienes gobiernan; más aún de sus propios empleados, con quienes contratan. Petición de certificación Victor A. Rivera et. al. v. E.L.A., et. al., pág. 24.
Como último foro judicial estatal, en aras de promover un verdadero acceso a la justicia, debemos preguntarnos: ¿conocemos a las comunidades que servimos? Soy del criterio que, como consecuencia de esta detrimental medida legislativa, los retos económicos de toda una generación están incrementándose severa y adversamente. Empero, la comunidad de futuros pensionados afectados por la Ley 3, supra, ahora parece ser un “obstáculo para el crecimiento financiero” y damos por buenas las acciones del Gobierno sin más preguntas o análisis objetivos. Si hoy cientos de miles de puertorriqueños viven bajo los niveles de pobreza, sin infraestructura básica, bajo condiciones ambientales *897difíciles y viviendas deficientes(34) esta decisión judicial será el opresor de otros miles más. En ese sentido, concuerdo con la aseveración siguiente:
[W]e must reject abstract neutrality and acquire a different kind of objectivity, assume our role as guardians of procedural fairness, and learn to value the feelings and ideas of others [...]
Under the Constitution, the primary function of a judge is to guarantee the fundamental constitutional rights of every person. This duty is based on the conviction that judges, as citizens who are aware of the value of these rights in a democratic society, choose their profession knowingly, and they assume responsibility for protecting those rights. They are committed to this end, and part of this commitment is to be aware of the great adversities faced by communities that have limited access to courts, whose members hope to find a helping hand among legal professionals [...]
Judges as human beings are the sum of their own diverse experiences, ideas, situations, expectations, and realities. Therefore, when a judge neglects to recognize her own subjectivity, her judgments will be inevitably biased. We must become aware of our own subjectivities, ideologies, and paradigms. By doing so, we may be able to exercise our judgment more effectively and more closer to a truly impartial assessment of events. Our goal, the, is not neutrality but a reasonable objectivity.(35)
Si hoy los Jueces y las Juezas de este Tribunal no se hubieran apartado de estas sabias expresiones, estoy seguro de que actuarían como guardianes de nuestra Constitución. Asimismo, en las páginas de la historia de nuestro Pueblo no se escribiría de la nueva clase de pobreza que hoy están avalando. Espero que los estudiosos de estos temas puedan responsable y objetivamente escuchar el grito de justicia de estos empleados y no yerren como esta Curia hoy lo hace al ignorar los preceptos que en algún momento juró defender.
*898No olvidemos que el pueblo espera de los jueces que siempre estemos ávidos a escuchar las posturas que le plantean las partes en un pleito. Asimismo, espera que el juez sea un árbitro que cante las jugadas como las ve, no como otros pretenden que se vean. Que el éxito en las decisiones económicas que se pretenden implantar bajo el palio del bienestar común jamás sea pretexto para atropellar al ser humano y menos aún menospreciar su dignidad. Es oportuno evocar la ilustre frase de Cicerón, “summum ius summa iniuria”.
Por todos los fundamentos que anteceden, disiento.
Opinión disidente emitida por la Juez Asociada Señora Rodríguez Rodríguez, Domínguez Castro et al. v. E.L.A. I, 178 DPR 1, 158 (2010).
Resolución de 11 de junio de 2013, María del C. Alvarado Pacheco, et al. v. E.L.A., CT-2013-05/06/07, pág. 25.
Domínguez Castro et al. v. E.L.A. I, 178 DPR 1, 110 (2010), opinión disidente del Juez Presidente Señor Hernández Denton. En esa misma línea, opina el Prof. Paul Secunda, quien al respecto nos dice:
“[...] Because of the lack of legal uniformity in public pension regulation from one state to the next, the only possible way to determine whether state curtailment of public employee pension rights will be constitutional is by undertaking an in-depth legal analysis of the applicable pension laws, regulations, ordinances, court opinions and prior settlements”. (Énfasis nuestro). P.M. Secunda, Constitutional Contract Clause Challenges in Public Pension Litigation, 28 Hofstra Lab. & Em. L.J. 263, 300 (2011).
Muchos estados siguen la teoría contractual. Según este alcance, existe una relación contractual entre el Estado, como el patrono, y el empleado público en cuanto a los beneficios que se le han garantizado mediante la ley. En algunos estados los beneficios adquieren la categoría de derechos adquiridos dependiendo la etapa laboral en que se encuentre el empleado, por ejemplo: cuando comenzó a trabajar e ingresó al sistema de retiro; luego de cada día de servicio rendido en el empleo; cuando el empleado satisface los requisitos de elegibilidad o, cuando el empleado se retira y comienza a devengar su pensión. En otros estados los empleados obtienen derechos adquiridos absolutos en el plan de pensión una vez entran al sistema. Otros, tienen una visión más restrictiva. Para una discusión general sobre este asunto. Véase E.M. Madiar, Public Pension Benefits under Siege: Does state law facilitate or block recent efforts to cut the pension benefits of public servants'! 27 ABA J. Lab. & Emp. L. 179 (2012). Véase también, J.M. Beermann, The Public Pension Crisis, 70 Wash. & Lee L. Rev. 3, 40 (2013).
Citando a Rosa Resto v. Rodríguez Solis, 111 DPR 89, 92 (1981).
Citando a Calderón v. Adm. Sistemas de Retiro, supra, págs. 1041-1042. Claro está, esa limitación a menoscabar la relación contractual se encuentra supeditada al poder de razón del Estado que discutimos previamente.
"Since the State was fully aware of its financial problems while negotiating and prior to signing the Agreement, it cannot now be permitted to avoid the Agreement based on those same economic circumstances. Although the financial situation worsened, it was a change in degree, not in kind. We therefore find as a matter of law that because the State’s acts were not reasonable in view of the circumstances existing when it entered into a contract, [...] Finding the State’s acts unreasonable, we need not reach the question of necessity”. (Enfasis nuestro). Carlstrom v. State, 103 Wash.2d 391, 397 (1985).
Véase Secunda, supra, pág. 283.
2012 WL431446. http://www.gpo.gov/fdsys/pkg/USCOURTS-mdd-l_10-cv01447/pdfTJSCOURTS-mdd-l_10-cv-01447-0.pdf.
Es importante señalar las características generales de un sistema de pensiones de beneficios definidos. En este tipo de plan el patrono tiene la carga de aportar fondos al sistema de pensión en bases actuariales de modo que existan suficientes fondos para pagarle al empleado cuando se retire. Para una explicación más detallada véase, Secunda, supra, Parte I.
Al tener ante nuestra consideración un asunto tan importante, teníamos a nuestra disposición la Regla 51 del Reglamento del Tribunal Supremo de 2011 (4 LPRA Ap. XXI-B) que establece que este Tribunal puede a iniciativa propia ordenar que se celebre una vista evidenciaría ante un comisionado especial.
Véase también la Exposición de Motivos de la Ley 116-2011.
Véase Apéndice I del caso Núm. CT-2013-06, Otero Ruiz et al. v. E.L.A. et al. Review of the Events and Decisions That Have Led to the Current Financial Crisis of the Employees Retirement System of the Government of Puerto Rico, Conway MacKenzie, Inc. Octubre 2010.
Es preocupante que recientemente se haya aprobado la Ley 27-2013 que creó una ventana de retiro tempano a los empleados de la Autoridad de Puertos de Puerto Rico que tuvieran al menos veinte años de servicio. Más aún, la ley tiene vigencia inmediata a partir de su aprobación el pasado el 17 de junio de 2013. Esa ley en su Art. 1 señala que se promulga en estricto cumplimiento con las leyes laborales y los derechos adquiridos de los servidores públicos. Además, se les proveerá una bonificación mínima de $900 por cada año de servicio, hasta un máximo de $27,000 de bonificación. Señaló la legislatura que para ello se separaron $50 millones provenientes de la transacción del arrendamiento del aeropuerto Luis Muñoz Marín. Tal medida es contradictoria a lo enunciado en la Exposición de Motivos de la Ley 3.
Véase la propia Exposición de Motivos de la Ley Núm. 3, supra; Ley Núm. 524-2004, Ley Núm. 144-2005, Ley Núm. 35-2007.
«ipjjg potential impact of increasing the cap on personal loans from $5,000 to $15,000 on the System’s liquidity profile and investment portfolio should have been thoroughly vetted before the ERS [(Sistema de Retiro de Empleados) decided to amend the regulations pertaining to personal loans. Based on our review of the relevant documentation that was provided to us, including the 2007 ERS Board of Trustee minutes, and interviews with various key employees of the ERS, it appears that such due care was not used by the System Administrator in supporting this change or by the Board of Trustees in approving this change [...] Approving such a decision without supporting analyses demonstrates lack of fiduciary responsibility by ERS management and the Board of Trustees”. CT-13-06, Apéndice I, pág. 17.
íd., pág. 10.
íd.
Concretamente el estudio expresa lo siguiente:
“[...] Given the dramatic increase in the funding ratio presented to them, ERS [(el Sistema de Retiro)] management, the Board of Trustees and GDB [(Banco Gubernamental de Fomento)] Board of Directors had a responsibility to fully understand if the increase was reasonable and calculated consistently with prior period calculations. This lack of understanding falls short of what is expected from a director or a fiscal agent that is exercising prudence or acting within the general standards of reasonability”. Id., pág. 12.
íd., pág. 15.
“The POB transaction has negatively impacted the ERS and the Government, in general. Rather than addressing the System’s long-term funding problems, the POB transaction merely provided a short-term temporary measure to address the System’s liquidity needs. This short-term measure is pricey and its cost may be realized for decades to come. In our opinion, the POB transaction accomplished little more than passing on, and increasing the complexity of, the burden of fixing the System’s fundamental structural problems to future administrations of the ERS. We also believe that certain actions and omissions of the Board of Trustees, GDB Board of Directors and ERS management during the POB decision making process were not reasonable and potentially flawed. As such, Conway MacKenzie recommends that further investigation into the POB decision-making process should be pursued by the appropriate authorities”. Id., págs. 16-17.
Nótese que el Estado evade una responsabilidad previamente contraída con la Administración de los Sistemas de Retiro. Y así, a raíz de esa negligencia, intenta remediar el problema menoscabando los derechos adquiridos de los pensionados futuros. Véase U.S. Trust Co. of New York v. New Jersey, supra.
Cabe señalar que la propia Exposición de Motivos de la Ley Núm. 7-2009 establece que el Gobernador de Puerto Rico había tomado medidas para atender esta grave situación y que mediante las Órdenes Ejecutivas OE-2009-001 y OE-2009-004, había establecido medidas inmediatas de control de gastos incluyendo: la congelación de puestos vacantes; la prohibición a la creación de nuevos puestos; la eliminación de un 30% de los puestos de confianza en las agencias; la reducción de gastos operacionales equivalente al 10% de la mitad de los gastos operacionales presupuestados para el año fiscal 2008-2009; la prohibición del uso de tarjetas de crédito; la limita*887ción al uso de vehículos oficiales, y la prohibición del uso de fondos públicos para sufragar gastos relacionados al uso de celulares, entre otras medidas.
Sobre este particular expresamos que “ninguna ley al momento le reconoce al empleado público un derecho sin limitaciones a la retención, o un derecho a no ser cesanteado”. Domínguez Castro et al. v. E.L.A. I, supra, pág. 69.
Sin embargo, es posible que una acción estatal que no viola la cláusula contra el menoscabo de las relaciones contractuales —ya que esta acción estatal es razonable y necesaria para servir un interés público— viole la cláusula contra la expropiación sin justa compensación o taking. Esto así, ya que cuando el Estado toma propiedad privada, es irrelevante si lo hace con un fin importante, por ende, cuando expropia este debe pagar una justa compensación. J.M. Beermann, The Public Pension Crisis, 70 Wash. & Lee L. Rev. 3, 63-64 (2013).
Nótese que en la Exposición de Motivos de la Ley 3, supra, el legislador plasmó que “[e]l bienestar de todos los que vivimos en Puerto Rico se vería seriamente afectado si más recursos del Fondo General se compromete para pagar las pensiones de los pensionados”. También indicó que “[m]ás fondos para los Sistemas de Retiro implican menos fondos para educar a nuestros niños, proteger nuestros hogares, cuidar nuestra salud y mejorar la infraestructura que utilizamos todos los días”. El impacto económico que sufrirán los empleados retirados no tiene precedente. Las expresiones que acabamos de transcribir no contiene ápice de razonabilidad alguna y no ha sido objeto de prueba para ser aquilatado por un tribunal.
Domínguez Castro et al. v. E.L.A. I, supra, pág. 118, opinión disidente de la Jueza Asociada Señora Fiol Matta.
íd.
íd., pág. 115.
íd., pág. 111.
íd., pág. 114.
íd., pág. 114.
Alvarado Pacheco y otros v. ELA, 188 DPR 594, 643 (2013), voto particular del Juez Asociado Señor Rivera García.
L. Fiol Matta, J., Knowing the communities we serve, 49 Court Review, 13, 2013. Disponible en: http://aja.ncse.dni.us/publications/courtrv/cr49-l/CR49-lMatta.pdf (última visita, 24 de junio de 2013).
íd., pág. 19. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/128701/ | 538 U.S. 962
FUTURESOURCE, LLCv.REUTERS LTD. ET AL.
No. 02-1269.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. Reported below: 312 F. 3d 281. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128718/ | 538 U.S. 964
COTTENv.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, ET AL.
No. 02-8890.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 46 Fed. Appx. 213. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128725/ | 538 U.S. 964
MYERSv.BALTIMORE COUNTY, MARYLAND.
No. 02-8892.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 50 Fed. Appx. 583. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1008217/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6734
MICHAEL U. REED,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director, Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CA-01-478)
Submitted: July 25, 2002 Decided: August 2, 2002
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael U. Reed, Appellant Pro Se. Hazel Elizabeth Shaffer,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael U. Reed seeks to appeal the district court’s order
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 2002). We have reviewed the record and the district
court’s opinion and find no reversible error. Accordingly, we deny
a certificate of appealability and dismiss the appeal on the
reasoning of the district court. Reed v. Angelone, No. CA-01-478
(E.D. Va. Apr. 5, 2002). 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/3218098/ | DISMISS; and Opinion Filed June 28, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00717-CR
No. 05-16-00718-CR
EX PARTE SENRICK WILKERSON
Original Proceedings Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F10-01183 & F10-1184
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Brown
Opinion by Justice Brown
The Court has before it Senrick Wilkerson’s June 20, 2016 petition for out of time
appeals. The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus
from the Texas Court of Criminal Appeals filed under article 11.07 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); see also Portley v. State,
89 S.W.3d 188, 189 (Tex. App.—Texarkana 2002, no pet); Ashorn v. State, 77 S.W.3d 405, 409
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). This Court has no jurisdiction to grant out-of-
time appeals.
Because we lack jurisdiction, we dismiss these appeals.
Do Not Publish /Ada Brown/
TEX. R. APP. P. 47 ADA BROWN
JUSTICE
160717F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE SENRICK WILKERSON On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-16-00717-CR Trial Court Cause No. F10-01183.
Opinion delivered by Justice Brown, Justices
Lang-Miers and Evans participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 28th day of June, 2016.
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE SENRICK WILKERSON On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-16-00718-CR Trial Court Cause No. F10-01184.
Opinion delivered by Justice Brown, Justices
Lang-Miers and Evans participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 28th day of June, 2016.
–3– | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2926044/ | NUMBER 13-09-00024-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MANUEL SOTELO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Manuel Sotelo, guilty of the offense of driving while
intoxicated (“DWI”), a third-degree felony in this case because of prior convictions for the
same offense. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), § 49.09 (Vernon Supp.
2009). The trial court assessed punishment at three years’ imprisonment. By a single
issue, Sotelo contends that the trial court erred in overruling his objection to the State’s
allegedly improper jury argument. We affirm.
I. BACKGROUND
Around 11:23 p.m. on March 22, 2008, Port Aransas police officer Terry Syler
encountered a Chevy Impala blocking Mustang Island Beach’s flow of vehicular spring
break traffic. Upon closer inspection, Officer Syler realized that the Impala had been
involved in a minor accident with a nearby Dodge truck. The Impala’s front wheels were
buried in the sand and one of the wheels appeared broken; the driver, later identified by
Officer Syler as Sotelo, attempted to free the Impala by spinning its tires. Officer Syler
testified that he approached the driver’s side of the Impala and asked Sotelo to exit.
Officer Syler suspected that Sotelo was intoxicated because Sotelo’s breath smelled of
alcohol, he was “unsteady on his feet,” and his speech was slurred.
Texas Department of Public Safety Trooper Eloy Vasquez arrived on the scene to
assist Officer Syler. Trooper Vasquez testified that, in addition to the signs of intoxication
noted by Officer Syler, Sotelo had “watery eyes” and kept repeating himself. Trooper
Vasquez testified that Sotelo responded “Yes” when asked if “he had been drinking a lot.”
Due to the large number of people and traffic on the beach, Trooper Vasquez transported
Sotelo to the parking lot of the Port Aransas Police Department to conduct sobriety testing.
Trooper Vasquez testified that he conducted the horizontal gaze nystagmus test, the “walk
and turn” test, and the “one leg stand” test and that Sotelo failed each of the tests.
Although Sotelo refused to take a breath test, Trooper Vasquez testified that in his opinion,
Sotelo “had lost his mental and physical faculties. He was intoxicated.”
Sotelo testified that he arrived at the beach around 8:30 p.m., intending to meet
several friends. Sotelo parked his mother’s Impala and introduced himself to a few people
at a nearby bonfire. Sotelo testified that he offered to drive a man home a few hours later;
2
however, on cross-examination, Sotelo testified that he did not know the man’s name.
Sotelo admitted that he had consumed two beers that night and had two prior DWI
convictions. According to Sotelo, because he had seen many police officers on the beach,
he allowed the unidentified man to drive the Impala. Sotelo stated that he rode in the front
passenger seat as the man drove the Impala down the beach. At some point, a Dodge
truck backed into the Impala. Sotelo testified that he got out of the Impala and looked for
a cell phone to call the police, and the man who had been driving the Impala fled. Sotelo
insisted that no one was in the driver’s seat when the police arrived. On cross-
examination, Sotelo stated that he had not told the officers that someone else had been
driving the Impala at the time of the accident because “he was more concerned about [his]
vehicle.”
The jury found Sotelo guilty of third-degree felony driving while intoxicated, and the
trial court assessed punishment at three years’ imprisonment. See TEX . PENAL CODE ANN .
§§ 49.04, 49.09. This appeal ensued.
II. JURY ARGUMENT
In his sole issue, Sotelo contends that the State’s comments on his refusal to submit
to a breath test were improper, and the trial court erred by failing to sustain his objections
to those comments.
Closing arguments began with defense counsel’s argument that the State had not
met its burden of proof. Defense counsel argued that evidence of the three field sobriety
tests conducted was unreliable and that Sotelo had the right to refuse to submit to a breath
test. During the State’s closing argument, the following exchange occurred:
[State]: . . . And then [Sotelo] was offered the opportunity to
provide a breath sample. You know why? Because we
are always going to hear the argument, oh, these field
3
sobriety tests are too hard. No one can do it. So you
know what, he had his chance right there with his two
beers that he drank, to blow and prove to this Court and
to you all—
[Defense Counsel]: Objection, Your Honor. I just want to make sure the jury
doesn’t think the burden is being shifted, and I’m going
to object to this part of the argument that my client has
any burden to prove anything. I think she’s mentioned
that.
[State]: Your Honor, the refusal to perform the breath
sample—it has been used in court.
The Court: Overruled.
[State]: He had the opportunity to blow and show you that he
was below .08, and he refused. I know we talked about
this in voir dire about how that would take you to that
one level. And I wish I could give that to you, but it is
not up to me to give it. There was one person in this
room who could have given that evidence to you, and
he refused.
[Defense Counsel]: I’m going to object again. That’s burden shifting, Your
Honor. It’s inappropriate.
[State]: Your Honor, it is the same response. It can be used
against him in Court.
The Court: The evidence of his refusal is on the record.
[State]: So again, that can be used against him. . . .
A. Was the State’s Jury Argument Improper?
We review a trial court’s ruling on an objection to a jury argument under an abuse
of discretion standard. See York v. State, 258 S.W.3d 712, 717 (Tex. App.–Waco 2008,
pet. ref’d). “[P]roper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State, 270
4
S.W.3d 564, 570 (Tex. Crim. App. 2008). To determine whether a party’s argument
properly falls within one of these areas, we must consider the argument in light of the
record as a whole. See Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.–El Paso 2001,
pet. ref’d).
The State contends that its argument was proper because it was an answer to
defense counsel’s arguments and “the State may comment on appellant’s failure to
produce witnesses and evidence in his favor, so long as the remark does not fault the
defendant for exercising his right not to testify.” The State’s argument on appeal begins
with a line of cases that address whether a statement is an improper comment on a
defendant’s failure to testify. See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App.
2000); Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Livingston v. State,
739 S.W.2d 311, 338 (Tex. Crim. App. 1987); Caron v. State, 162 S.W.3d 614, 618 (Tex.
App.–Houston [14th Dist.] 2005, no pet.). However, Sotelo does not contend that the
State’s argument was a comment on his failure to testify; instead, he argues that the
State’s argument improperly shifted the burden of proof to him. Accordingly, we focus our
analysis on whether the State attempted to shift its burden to Sotelo.
Section 724.061 of the Texas Transportation Code provides that a person’s refusal
to submit to a breath test may be introduced into evidence. TEX . TRANS . CODE ANN . §
724.061 (Vernon 1999). Because evidence of Sotelo’s failure to take a breath test was in
evidence, the State could properly comment on his refusal in closing argument. See
Emigh v. State, 916 S.W.2d 71, 73 (Tex. App.–Houston [1st Dist.] 1996, no pet.); Jordan
v. State, 897 S.W.2d 909, 912-13 (Tex. App.–Fort Worth 1995, no pet.). However, the
issue before us is not whether the State erred by commenting on Sotelo’s refusal to take
a breath test, but whether the State’s comment improperly shifted the burden of proof to
5
Sotelo. We conclude that the State’s argument was improper.
Although evidence of Sotelo’s refusal to submit to a breath test was properly
introduced at trial, the State’s comments went beyond merely summarizing the state of the
evidence. The record indicates that the State’s comments began as an answer to defense
counsel’s argument that the sobriety tests were unreliable; however, the State’s argument
became improper when the State suggested that Sotelo had the burden “to blow and
prove” his innocence. By arguing that Sotelo had a chance “to prove” his innocence, the
State attempted to shift its burden to Sotelo. See Bartlett v. State, 270 S.W.3d 147, 153
(Tex. Crim. App. 2008) (concluding that although evidence of a person’s refusal to submit
to a breath test may be introduced at trial because it tends to show a consciousness of
guilt, a jury is not authorized “to presume a consciousness of guilt from the refusal to take
a breath test”). Accordingly, we conclude that the State’s argument was improper and the
trial court erred in overruling Sotelo’s objection. See Abbott v. State, 196 S.W.3d 334, 343-
44 (Tex. App.–Waco 2006, pet. ref’d) (concluding that jury argument was improper where
the State’s closing argument misstated the law on the burden of proof).
B. Did the Error Contribute to Sotelo’s Conviction?
Because the trial court erred in overruling Sotelo’s objection, we must determine
whether reversal is required. See TEX . R. APP. P. 44.2. “The law on the burden of proof
is constitutional: The Due Process Clause of the Fourteenth Amendment to the United
States Constitution requires that every state criminal conviction be supported by evidence
that a rational factfinder could find beyond a reasonable doubt.” See Abbott, 196 S.W.3d
at 344. Moreover, the presumption of innocence “arises from the constitutional guarantee
of a fair and impartial trial.” Id. (citing U.S. CONST . amend. XIV). Because the error is
6
constitutional, we must reverse the trial court’s judgment unless we determine beyond a
reasonable doubt that the error did not contribute to Sotelo’s conviction. See TEX . R. APP.
P. 44.2(a); Abbott, 196 S.W.3d at 344-45 (conducting a harm analysis under Texas Rule
of Appellate Procedure 44.2(a) after determining that the State’s closing argument was
improper where it misstated the law on the burden of proof).
In conducting a harm analysis under rule 44.2(a), our emphasis is not on “the
propriety of the outcome of the trial.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.
2007). Instead, we consider “the likelihood that the constitutional error was actually a
contributing factor in the jury’s deliberations in arriving at that verdict.” Id. In reaching this
decision, we consider: (1) the source and nature of the error; (2) the extent to which the
State emphasized the error; (3) the probable collateral implications of the error; (4) the
weight a juror would probably place upon the error; and (5) whether declaring the error
harmless would encourage the State to repeat it with impunity. Wall v. State, 286 S.W.3d
372, 374 (Tex. App.–Corpus Christi 2008, pet. ref’d) (citing Harris v. State, 790 S.W.2d
568, 587 (Tex. Crim. App. 1989)); Abbott, 196 S.W.3d at 344.
Although the trial court erred by overruling Sotelo’s objection, the source and nature
of the error was the State’s improper jury argument attempting to shift the burden of proof
to Sotelo. Turning to the second through fourth factors, we note that aside from the above
cited argument, the jury was properly instructed on the burden of proof throughout the trial.
During voir dire, the jury heard from defense counsel that the State had the burden to
prove that Sotelo was guilty of the offense of driving while intoxicated. Defense counsel
emphasized that Sotelo “has no burden at all to do anything.” When trial began, the
State’s opening argument informed the jury that the State had the burden to prove that
7
Sotelo committed the charged offense beyond a reasonable doubt. Defense counsel’s
opening statement reminded the jury that “the State always has the burden” and that “the
burden never shifts to my client.”
Before closing arguments, the trial court charged the jury, in pertinent part, as
follows:
Unless you so find beyond a reasonable doubt, or if you have a
reasonable doubt thereof, you will acquit the defendant of the felony offense
alleged in the indictment.
....
All persons are presumed to be innocent and no person may be
convicted of an offense unless each element of the offense is proved beyond
a reasonable doubt. The fact that a person has been arrested, confined, or
indicted for, or otherwise charged with, the offense gives rise to no inference
of guilt at his trial. The law does not require a defendant to prove his
innocence or produce any evidence at all. The presumption of innocence
alone is sufficient to acquit the defendant, unless the jurors are satisfied
beyond a reasonable doubt of the defendant’s guilt after careful and impartial
consideration of all the evidence in the case.
The prosecution has the burden of proving the defendant guilty and
it must do so by proving each and every element of the offense charged by
reasonable doubt and if it fails to do so, you must acquit the defendant.
....
In deciding the question of guilt or innocence, the jury shall be
governed by the law as it is stated in the charge. . . .
The charge was followed by defense counsel’s closing argument emphasizing the State’s
burden. After improperly attempting to shift the burden of proof to Sotelo via the previously
discussed closing argument, the State concluded its jury argument by stating that the State
bears the burden of proof and emphasizing that it had met its burden.
Sotelo does not contend that the evidence is legally or factually insufficient to
8
support his conviction. Moreover, the error did not occur until the State’s closing argument
in the guilt-innocence phase of trial. The evidence does not suggest that the State
emphasized its error or that the jury would place undue weight on the State’s improper
argument. Abbott, 196 S.W.3d at 344-45. Moreover, the jury was properly instructed on
the correct burden of proof numerous times throughout the trial. Because the jury is
presumed to follow these instructions, the impact of the State’s improper argument was
likely negated to some extent. See Crocker v. State, 248 S.W.3d 299, 306-07 (Tex.
App.–Houston [1st Dist.] 2007, pet. ref’d).
Finally, we must determine whether declaring the State’s error harmless would
encourage the State to repeat it with impunity. See Abbott, 196 S.W.3d at 344. The
defense’s closing argument questioned the reliability of the three sobriety tests given and
the veracity of the officer who conducted them. As previously discussed, the State’s
argument, although improper, began as a response to defense counsel’s arguments.
Although the State‘s argument went beyond merely responding to defense counsel’s
assertions, there is nothing in the record to suggest that the State intended to shift its
burden to Sotelo—Sotelo’s refusal to take the breath test was not emphasized during the
trial. Morevoer, soon after its improper argument, the State referred to the correct burden
of proof, and the jury was instructed as to the correct standard numerous times throughout
the trial.
After due consideration of the each of the aforementioned factors, we are certain
that the State’s error did not contribute to Sotelo’s conviction. Accordingly, the complained-
of error was harmless. See TEX . R. APP. P. 44.2(a); Abbott, 196 S.W.3d at 345. Sotelo’s
sole issue is overruled.
9
III. CONCLUSION
Having overruled Sotelo’s sole issue, we affirm the trial court’s judgment.
________________________
ROGELIO VALDEZ
Chief Justice
Do Not Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed
the 10th day of December, 2009.
10 | 01-03-2023 | 09-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128731/ | 538 U.S. 965
JACKSONv.KLEVENHAGEN ET AL.
No. 02-8934.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 591. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3056998/ | Case: 11-14878 Date Filed: 08/30/2012 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14878
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cv-00950-JA-KRS
MICHAEL HORN,
Petitioner-Appellant,
versus
SECRETARY, FLA. DEPT. OF CORRECTIONS,
Respondent-Appellee.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(August 30, 2012)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Michael Horn, who was convicted in Florida of animal cruelty and sentenced
to five years and one day in prison as a habitual felony offender, appeals the denial
Case: 11-14878 Date Filed: 08/30/2012 Page: 2 of 10
of his petition for a writ of habeas corpus. The district court granted a certificate of
appealability on a single claim – whether Mr. Horn’s trial counsel rendered
ineffective assistance by failing to object to the inclusion of an extraneous jury
instruction. After review of the record and the parties’ briefs, we affirm the denial of
habeas relief.
I
In relevant part, Fla. Stat. § 828.12(2) provides that “a person who intentionally
commits an act to any animal which results in the cruel death, or excessive or
repeated infliction of unnecessary pain or suffering, or causes the same to be done,
is guilty of a felony of the third degree[.]” The Florida Supreme Court has held that
animal cruelty under § 828.12(2) is a general intent crime, so that a defendant need
only intend to commit the act that resulted in the harm to the animal or animals. See
Reynolds v. State, 842 So.2d 46, 51 (Fla. 2002). As summarized below, the state
charged Mr. Horn with violating several criminal statutes, including § 828.12(2), and
the jury found him guilty of violating § 828.12(2).
The state’s evidence at trial showed that five of the adult dogs on Mr. Horn’s
premises were treated by animal services for puncture wounds, infections, untrimmed
nails, and poor nutrition. Some of the dogs, moreover, had scarring consistent with
those on dogs which have fought, and the wounds were of different ages with sone
2
Case: 11-14878 Date Filed: 08/30/2012 Page: 3 of 10
healed and others fresh. The dogs otherwise appeared happy and well-cared for,
though they were very aggressive towards each other. The county veterinarian
testified that the failure to keep the dogs apart was “mistreatment in the worst kind
of way.”
Mr. Horn testified on his own behalf at trial. He explained that two of the dogs
had scars because they had fought when one of his female dogs went into heat, that
he tried to treat the wounds with non-prescription ointment, and that he kept those
two dogs in separate pens after their fight. He also said that he treated the dogs with
over-the-counter medication for worms, though he was not sure whether he treated
them for hookworms.
The trial court instructed Mr. Horn’s jury as follows on the animal cruelty
charge:
To prove the crime of cruelty to animals, the state must prove the
following element beyond a reasonable doubt. Number 1, Michael Horn
knowingly committed an act or caused an act to be committed which
resulted in excessive or repeated infliction of unnecessary pain or
suffering to an animal.
Cruelty[,] torture or torment includes any act, omission for [sic]
negligence whereby unnecessary or unjustifiable pain or suffering is
caused, permitted or allowed to continue when there is reasonable
remedy or relief except when done in the interest of medical science.
The first portion of the charge was based on the Florida standard jury instruction for
3
Case: 11-14878 Date Filed: 08/30/2012 Page: 4 of 10
felony cruelty to animals. The second (and italicized) portion of the charge was based
on a Florida standard jury instruction which is supposed to be given only when the
cruel death of an animal is charged or when the state is seeking an enhanced sentence.
See Fla. Std. Jury Instr. (Cr.) 29.13 (§ 828.12(2), Fla. Stat.). Mr. Horn was not
charged with the cruel death of animal, and the state was not seeking an enhanced
sentence, so the second portion of the instruction should not have been given.
In closing argument, the prosecution asserted that Mr. Horn was guilty because
he had taught his dogs to fight. But the prosecution also relied on the second portion
of the instruction during closing, suggesting to the jury that even if it believed his
version of events Mr. Horn was guilty due to this negligence (e.g., “Even if you take
that version of those facts with you, Mr. Horn is guilty of animal cruelty. You see,
he’s negligent.”). The jury returned a general verdict of guilty on the animal cruelty
charge.
On direct appeal, the Fifth District ruled that it was error for the second portion
of the instruction to be given, but that Mr. Horn could not show fundamental error
because the jury was properly instructed (through the first portion of the instruction)
on the proper elements of the animal cruelty charge under § 828.12(2). See State v.
Horn, 17 So.3d 342, 342-43 (Fla. 5th DCA 2009). The trial court later denied Mr.
Horn’s motion for post-conviction relief by relying on the Fifth District’s ruling on
4
Case: 11-14878 Date Filed: 08/30/2012 Page: 5 of 10
direct appeal, and concluded that Mr. Horn could not show prejudice from any
deficient performance with respect to the instruction because the jury was properly
instructed on the elements of the animal cruelty charge. The Fifth District summarily
affirmed the denial of post-conviction relief.
II
In his habeas petition, Mr. Horn argued (as he does on appeal) that his trial
counsel should have objected to the second and improper portion of the instruction,
and that he was prejudiced by counsel’s failure to do so. The district court found that
Mr. Horn’s counsel had rendered deficient performance under Strickland v.
Washington, 466 U.S. 668 (1984), by not objecting to the inclusion of the second
(and erroneous) portion of the instruction. But it concluded that Mr. Horn could not
show prejudice under Strickland resulting from the deficient performance. As the
district court read Florida law, neglect could be the basis of animal cruelty under §
828.12(2) even where no animal died. See R1:16 at 11-12 (citing and discussing
Judge Griffin’s concurring opinion in Hynes v. State, 1 So.3d 328, 330-31 (Fla. 5th
DCA 2008)).
III
The case is governed by AEDPA, which means that we may grant Mr. Horn
habeas relief only if the Florida courts’ decisions were “contrary to, or an
5
Case: 11-14878 Date Filed: 08/30/2012 Page: 6 of 10
unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).
Significantly, “[a]s a federal habeas court, we are not applying Strickland de novo,
but rather through the additional prism of AEDPA deference. Thus, under this doubly
deferential standard, ‘[t]he pivotal question is whether the state court[s’] application
of the Strickland standard was unreasonable. And if, at a minimum, fair minded
jurists could disagree about the correctness of the state court[s’] decision, the state
court[s’] application of Strickland was reasonable and AEDPA precludes the grant
of habeas relief.” Morris v. Secretary, Dept. of Corrections, 677 F.3d 1117, ____ &
n.2 (11th Cir. 2012) (citations omitted / page references not available on Westlaw)
(noting in footnote 2 that standard set out in text with regard to performance prong
of Strickland also applies to the prejudice prong). Applying this standard, we affirm
the district court’s denial of habeas relief.
We accept the Fifth District’s conclusion that under Florida law the trial court
should not have given the second portion of the jury instruction on animal cruelty.
See Horn, 17 So.3d at 342-43. We also accept, for purposes of our discussion, the
district court’s ruling that Mr. Horn’s trial counsel rendered deficient performance
under Strickland by failing to object to the erroneous portion of the jury instruction.
The remaining question, then, is whether the Florida courts unreasonably concluded
that Mr. Horn had not shown prejudice under Strickland, i.e., had not shown a
6
Case: 11-14878 Date Filed: 08/30/2012 Page: 7 of 10
reasonable probability that, but for his counsel’s failure to object, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 694. That
question, in turn, requires us to evaluate the nature and effect of the second portion
of the animal cruelty jury instruction.
As a general matter, a jury instruction may constitute reversible error when it
broadens and constructively amends the indictment or information so that the
defendant can be convicted of a crime that was never charged. See, e.g., Stirone v.
United States, 361 U.S. 212, 217-19 (1960). For example, in United States v. Peel,
837 F.2d 975, 979-80 (11th Cir. 1988), we reversed a conviction because “the
erroneous instruction . . . alter[ed] the charging terms of the grand jury indictment by
advising the jurors that they could convict [the] appellant on the charged offense
based on a finding that does not constitute an element” of the offense, and because
it was not possible to say whether the conviction was based on the legally incorrect
theory. To determine whether there was a constructive amendment here, we examine
the second portion of the animal cruelty instruction.
Insofar as the second portion of the instruction mentioned “unnecessary or
unjustifiable pain or suffering,” there was not constructive amendment under Stirone
and its progeny, for such language was merely duplicative of the first (and correct)
portion of the instruction, which referred to “unnecessary pain or suffering.” See
7
Case: 11-14878 Date Filed: 08/30/2012 Page: 8 of 10
Peel, 827 F.2d at 979 (“A constructive amendment to the indictment occurs where the
jury instructions ‘so modif[y] the elements of the offense charged that the defendant
may have been convicted on a ground not alleged by the grand jury’s indictment.’”)
(citation omitted). The same goes for the word “cruelty,” which was also contained
in the first portion of the instruction.
Moving on to the word “torture” in the second portion of the instruction, we
conclude that its inclusion did not cause Mr. Horn any harm or prejudice. This is
because there was no evidence of torture presented at trial, and therefore “no
possibility that the jury convicted [Mr. Horn] on the basis of the extraneous element[]
interjected by the jury charge.” United States v. Ylda, 653 F.2d 912, 915 (5th Cir. Unit
A Aug. 14, 1981).
That leaves the reference to “negligence” in the second portion of the
instruction. As we see it, the use of the word “negligence” did not constitute a
constructive amendment, for a recent intermediate appellate decision in Florida seems
to support the district court’s view that § 828.12(2) allows a conviction based on
negligence even where no cruel death resulted.
In State v. Morival, 75 So.3d 810 (Fla. 2nd DCA 2011), the Second District held
that systematically depriving animals of nourishment could be properly charged as
felony animal cruelty. Relying in part on Judge Griffin’s concurrence in Hynes, the
8
Case: 11-14878 Date Filed: 08/30/2012 Page: 9 of 10
Second District explained that a felony charge under § 828.12(2) can be brought
where “an owner does not feed a dog or feeds a dog so little that it suffers
malnutrition over an extended period such that the animal loses a high percentage of
its normal body weight.” Id. at 812. The Second District’s decision in Morival and
Judge Griffin’s concurrence in Hynes together suggest that the intentional act
described in § 828.12(2) can be a negligent one. See also Borrack v. Reed, 53 So.3d
1253, 1259 (Fla. 4th DCA 2011) (May, J., specially concurring) (“The query then
becomes whether a party can allege that a defendant was negligent in committing an
intentional act? It appears that the answer is ‘yes.’”). Thus, even if the jury convicted
Mr. Horn based on his negligence, such a conviction would be consistent with, and
not an improper constructive amendment of, the charge based on § 828.12(2). See
Parker v. Secretary, Dept. of Corrections, 331 F.3d 764, 778 (11th Cir. 2003) (“an
independent basis for a jury verdict is not insufficient if the relevant error is,
considered separately, harmless”). See also id. At 778 n. 11 (noting that error with
respect to jury instructions is not structural). At the very least, fair minded jurists
could disagree about this point, and this means that the Florida courts’ resolution of
the prejudice prong of Strickland was not unreasonable.
Even if we have misread Florida law with respect to the mens rea under §
828.12(2), habeas relief is still unwarranted. The evidence of Mr. Horn’s guilt,
9
Case: 11-14878 Date Filed: 08/30/2012 Page: 10 of 10
though not overwhelming, was strong. First, some of the dogs had puncture wounds
and fresh scars, suggesting that they had been fighting. Second, some of the dogs
were also suffering from malnutrition and infections. Third, they jury was free to
reject Mr. Horn’s testimony and consider it as substantive evidence of guilt. See, e.g.,
United States v. Brown, 53 F.3d 312, 313-14 (11th Cir. 1995). On this record, we
cannot conclude that the Florida courts’ conclusion that Mr. Horn failed to show
prejudice was unreasonable. To the contrary, under the required AEDPA deference,
“we can ‘say, with fair assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not substantially swayed
by the error,’ and therefore ‘substantial rights’ were not affected. . . . [N]o reasonable
jury would have been influenced by a jury instruction and prosecutorial argument on
[a non-existent theory of] liability[.] United States v. Hornaday, 392 F.3d 1306, 1316-
17 (11th Cir. 2004) (quoting Kotteakos v. United States, 328 U.S. 750 (1946), and
applying the harmless error test enunciated in that case to situation where, as here,
jury was improperly instructed on a non-existent theory of criminal liability (aiding
and abetting) and prosecution argued that theory in closing argument).
IV
The district court’s denial of Mr. Horn’s habeas corpus petition is affirmed.
AFFIRMED.
10 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3218099/ | DISMISS; and Opinion Filed June 28, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00717-CR
No. 05-16-00718-CR
EX PARTE SENRICK WILKERSON
Original Proceedings Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F10-01183 & F10-1184
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Brown
Opinion by Justice Brown
The Court has before it Senrick Wilkerson’s June 20, 2016 petition for out of time
appeals. The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus
from the Texas Court of Criminal Appeals filed under article 11.07 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); see also Portley v. State,
89 S.W.3d 188, 189 (Tex. App.—Texarkana 2002, no pet); Ashorn v. State, 77 S.W.3d 405, 409
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). This Court has no jurisdiction to grant out-of-
time appeals.
Because we lack jurisdiction, we dismiss these appeals.
Do Not Publish /Ada Brown/
TEX. R. APP. P. 47 ADA BROWN
JUSTICE
160717F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE SENRICK WILKERSON On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-16-00717-CR Trial Court Cause No. F10-01183.
Opinion delivered by Justice Brown, Justices
Lang-Miers and Evans participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 28th day of June, 2016.
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE SENRICK WILKERSON On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-16-00718-CR Trial Court Cause No. F10-01184.
Opinion delivered by Justice Brown, Justices
Lang-Miers and Evans participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 28th day of June, 2016.
–3– | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3057056/ | Case: 12-10168 Date Filed: 08/20/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10168
Non-Argument Calendar
________________________
Agency No. A096-636-216
MICHAEL JARRETT,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 20, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 12-10168 Date Filed: 08/20/2012 Page: 2 of 4
Michael Jarrett, a native and citizen of Jamaica, petitions this court for
review of the Board of Immigration Appeals’s (BIA) denial of his motion for
reconsideration of its order affirming the Immigration Judge’s (IJ) pretermitting
his application for adjustment of status. After a thorough review, we deny the
petition.
In 2001, Jarrett entered the United States from Jamaica on a C1 visa to work
on a ship as a crewman for ten months, after which he returned to Jamaica. Using
the same visa, he reentered the United States in 2002, but could not find
employment he liked and quickly returned to Jamaica. When Jarrett entered the
United States in 2003, he again entered on his crewman’s visa, but he did not plan
to work, nor did he work, as a crewman. Jarrett remained in the U.S. without
authorization after the expiration of his visa.
In 2005, Jarrett married a U.S. citizen and moved to adjust his status. While
his application was pending, the Department of Homeland Security issued a notice
to appear, charging him as removable under 8 U.S.C. § 1227(a)(1)(B), and moved
to pretermit Jarrett’s application for adjustment of status because Jarrett’s status as
a “crewman” rendered him eligible for adjustment of status. Jarrett responded that
he was not in fact a “crewman” and thus was eligible to adjust status.
The IJ granted the government’s motion, finding that Jarrett was ineligible
2
Case: 12-10168 Date Filed: 08/20/2012 Page: 3 of 4
for adjustment of status because he was a “crewman.” See 8 U.S.C. § 1255(c).
Jarrett appealed to the BIA, which affirmed the IJ’s decision and dismissed the
appeal on September 26, 2011. Jarrett did not petition this court for review of that
decision. Jarrett filed a timely motion for reconsideration with the BIA, reiterating
his previous arguments that he was not a crewman. On December 20, 2011, the
BIA denied the motion for reconsideration. Jarrett filed a timely petition for
review in this court on January 11, 2012, arguing that the IJ and BIA erred by
finding him statutorily ineligible for an adjustment of status.
An alien seeking review of a final order of removal must file a petition for
review in this court within 30 days of the issuance of the final order. 8 U.S.C.
§ 1252(b)(1). The 30-day deadline is “mandatory and jurisdictional.” Dakane v.
U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005). The finality of a
removal order is not affected by the filing of a motion to reconsider. Jaggernauth
v. U.S. Att’y Gen., 432 F.3d 1346, 1350-51 (11th Cir. 2005).
Here, Jarrett failed to file a timely petition for review of the BIA’s
September 26 order affirming the IJ’s decision that he was statutorily ineligible to
adjust status. Accordingly, we lack jurisdiction to review the September 26 order,
and we dismiss Jarrett’s petition for review to the extent that it challenges the
determination that he was ineligible to adjust status. See Dakane, 399 F.3d at
3
Case: 12-10168 Date Filed: 08/20/2012 Page: 4 of 4
1272 n.3.
Additionally, in his petition for review, Jarrett fails to offer any argument
challenging the denial of his motion for reconsideration. Therefore, Jarrett has
abandoned this issue. Because the denial of the motion for reconsideration was
the only issue properly before us, we deny the petition for review on this ground.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005)
(providing that issues not raised on appeal are deemed abandoned).
Dismissed in Part, Denied in Part.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047566/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-22-2009
Chen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3705
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Chen v. Atty Gen USA" (2009). 2009 Decisions. Paper 2003.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2003
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3705
___________
BAO YING CHEN; JIN BAO LIU,
Petitioners,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency Nos. A77-713-720; A72-432-397
Immigration Judge: Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 21, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: January 22, 2009
___________
OPINION
___________
PER CURIAM
Petitioners Bao Ying Chen and Jin Bao Liu, natives and citizens of the People’s
Republic of China, and wife and husband, were ordered removed by an Immigration
Judge after they were found not credible and after their requests for asylum, withholding
of removal, and relief under the Convention Against Torture were denied.1 In a decision
dated February 4, 2005, the Board of Immigration Appeals upheld the IJ’s adverse
credibility finding, affirmed the decision, and dismissed the appeal. We dismissed Chen’s
petition for review in Chen v. Gonzales, 173 Fed. Appx. 959 (3d Cir. 2006).
Chen sought asylum on the basis of political persecution because of her opposition
to China's coercive family planning policy.2 Chen and Liu were married in 1981, had a
son in 1982, and, after coming to the United States in 1999, Chen gave birth to the
couple’s daughter. At the merits hearing on June 19, 2002, both Chen and Liu testified
that they feared they would be subjected to forced sterilization by local Chinese family
planning officials because they already have two children. In affirming, the Board noted
material, unexplained inconsistencies and omissions in the testimony surrounding an
alleged forced abortion, citing Chen's testimony, documentary evidence from the record,
and Liu's asylum application.3 After careful review of the record, we found substantial
1
Chen is the lead petitioner, and we thus will refer primarily to her throughout our
Opinion.
2
To qualify for asylum or withholding of removal, an applicant must establish that she
has a well-founded fear that she will be persecuted if removed to her home country on
account of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). “[A] person who has a well
founded fear that he or she will be forced to [abort a pregnancy or undergo involuntary
sterilization] or [is] subject to persecution for [failure, refusal, or resistance to undergo
such a procedure] shall be deemed to have a well founded fear of persecution on account
of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
3
An applicant bears the burden of proving eligibility for asylum based on specific
facts and credible testimony. 8 C.F.R. § 208.13(a); Abdille v. Ashcroft, 242 F.3d 477,
2
evidence to support “the adverse credibility finding as to both Chen and Liu.” Id. at 961.
On March 1, 2007, Chen filed a motion to reopen proceedings with the Board. In
it she contended that she and Liu had new evidence, not previously available, that China
has a policy that Chinese nationals with two children will be subject to family-planning
enforcement upon resettlement in China, and that her motion was not untimely under the
“changed circumstances” exception of 8 C.F.R. § 1003.2(c)(3)(ii). The evidence
submitted with the motion included a marriage certificate, household registration booklet,
and birth certificate (Exhibits A-C), and other evidence, which we set forth in the margin,
directly bearing on Chen’s assertion of a persecutory policy.4 No State Department
Country Reports were submitted with the motion. In a decision dated August 13, 2007,
the Board denied Chen’s motion to reopen removal proceedings. This timely petition for
482 (3d Cir. 2001).
4
The other evidence was as follows: affidavits of Jin Bao Liu and Bao Ying Chen
dated January 11, 2007 (Exhibit D); affidavit of John Shields Aird, dated September 30,
2004 (Exhibit E); RefLex, Issue 70 – July 7, 1997, Canadian Immigration and Refugee
Board (Exhibit F); an article from “Road to East Asia,” Vol 1, June-August 1996 (Exhibit
G); an article from “Population Research Institute Review,” Vol. 9, April/May 1999
(Exhibit H); a transcript from ABC News Nightline, June 9, 1998 (Exhibit I); Liu v.
Gonzales, No. 03-4219 (2d Cir. September 28, 2006) (summary order) (Exhibit J); Guo v.
Gonzales, 463 F.3d 109 (2d Cir. 2006) (Board abused its discretion in failing to consider
documents purporting to show that foreign-born children would be counted in
determining violations of China's one-child policy) (Exhibit K); an Administrative
Opinion, Changle City Family-Planning Administration, May 22, 2003 (Exhibit L); an
Administrative Decision, Fujian Province, Department of Family Planning
Administration, 2003 (Exhibit M); an article from Martindale-Hubbell International Law
Digest, August 7, 2006 (Exhibit N); and an article from The New York Times, August 24,
2006 ( Exhibit O).
3
review followed.
We will grant the petition for review, vacate the Board’s August 13, 2007 decision,
and remand the matter for further proceedings. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1), (b)(1). We review the denial of a motion to reopen for abuse of discretion.
See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). We will not disturb the Board's
decision unless it is arbitrary, irrational, or contrary to law. Id. Chen contends on appeal
that the Board’s rationale in refusing to reopen proceedings and its failure to consider
relevant evidence annexed to her motion to reopen constituted an abuse of discretion. We
agree. In vacating the Board’s order and remanding for further proceedings, we rest our
holding solely on procedural deficiencies we find in the proceedings concerning the
motion to reopen. We do not reach the substantive issues whether Chen has (1) made out
a prima facie case of eligibility for asylum or the related relief, or (2) established changed
country conditions in China with respect to stepped-up or abusive local enforcement of its
family planning policy.5
The regulation governing motions to reopen provides that: “A motion to reopen
proceedings shall state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other evidentiary material.... A
5
We lack jurisdiction to address Chen’s arguments concerning the IJ’s adverse
credibility determination, because the underlying immigration proceedings are not before
us. 8 U.S.C. § 1252(b)(1) (providing for thirty day period in which to file petition for
review).
4
motion to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing ....” 8 C.F.R. § 1003.2(c)(1). Although a
motion to reopen “must be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R.
§ 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on
changed circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available and could
not have been discovered or presented at the previous hearing.” 8 C.F.R. §
1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Properly identifying Chen’s claim that she and her husband had new evidence that
Chinese nationals who return with children born in the United States may be subjected to
sterilization, the Board reached two conclusions: the motion was untimely and the changed
circumstances exception did not apply.6 The Board’s conclusion that the motion to reopen
6
Following its conclusion that the motion was untimely, and prior to addressing the
issue of changed circumstances, the Board stated that it was “unlikely” that Chen had a
realistic chance of establishing eligibility for asylum based on the Board’s prior
affirmance of the IJ’s original adverse credibility determination. Although, in addressing
a motion to reopen, the Board may “leap ahead” over the threshold issue of whether the
alien has introduced previously unavailable, material evidence that justifies reopening,
and “simply determine that even if they were met, the [alien] would not be entitled to the
discretionary grant of relief,” Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94,
105 (1988), here, the Board’s statement that it was “unlikely” that Chen had a realistic
chance of establishing eligibility for asylum does not contain the necessary certainty to
qualify it as an alternative holding, and we will not treat it as such.
5
was untimely because it was not filed within 90 days of the Board’s previous decision was
not an abuse of discretion. See 8 C.F.R. § 1003.2(c)(2). With respect to whether the
“changed circumstances” exception to the timeliness requirement applied, the Board stated
that “the majority of the evidence provided with the motion and all of the evidence directly
cited in the motion were available to [Chen and Liu] and could have been presented at the
previous hearing.” For example, the “main article” relied upon, the “Reflex” article, was
previously submitted. To the extent that roughly half of the evidence Chen submitted with
her motion to reopen was old and could have been, or was, presented at the original merits
hearing, the Board did not abuse its discretion. The July 1997 RefLex, Issue 70, from the
Canadian Immigration and Refugee Board, was attached as Exhibit F to the motion to
reopen. Other old evidence included the 1996 “Road to East Asia” article (Exhibit G), the
1999 “Population Research Institute Review” article (Exhibit H), and the 1998 ABC News
Nightline transcript (Exhibit I).
The Board went on to state that there was only one piece of evidence dated
subsequent “to the Immigration Judge’s decision,” the John Aird affidavit, which the
Board had previously determined was too general, and not based upon personal
knowledge, to be persuasive of changed circumstances regarding China’s enforcement of
its family planning policy. The Board cited its decisions in Matter of C-C-, 23 I. & N.
Dec. 899 (BIA 2006), and Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007). Therefore,
the Board concluded, the evidence submitted did not establish that circumstances in China
6
had changed since Chen and Liu’s “hearing before the Immigration Judge.” Insofar as we
too have rejected Aird’s position, see Yu v. U.S. Att’y Gen., 513 F.3d 346, 348-49 (3d Cir.
2008), the Board did not abuse its discretion in rejecting this new evidence.
However, we conclude that the Board abused its discretion in determining that only
the Aird affidavit was new and material. In her Memorandum of Law attached to the
motion to reopen, Chen cited directly the following other evidence, in addition to the Aird
affidavit, that was new: an Administrative Opinion from the Changle City Family-
Planning Administration, dated May 22, 2003 (Exhibit L), an Administrative Decision
from Fujian Province Department of Family Planning Administration, dated 2003 (Exhibit
M), an entry from the Martindale-Hubbell International Law Digest, dated August 7, 2006
(Exhibit N), and an article from The New York Times, dated August 24, 2006 (Exhibit O).
A.R. 21-23. All of these items post-date the June 19, 2002 merits hearing and provide
relevant information.7
Evidentiary material may only be presented at a merits hearing before the IJ. See
Filja v. Gonzales, 447 F.3d 241, 252-53 (3d Cir. 2006). The date of the merits hearing,
7
Chen also submitted two 2006 decisions from the Court of Appeals for the Second
Circuit (Exhibits J and K), but these cases added nothing more in that they merely discuss
the significance of Chen’s Exhibits L and M, the 2003 Changle City Family-Planning
Administration Opinion and 2003 Fujian Province Department of Family Planning
Administration Decision. Chen also submitted her own and her husband’s recent
affidavits, but, after careful review, we conclude that these affidavits are too general to be
persuasive of changed circumstances regarding China’s enforcement of its family
planning policy.
7
and not the date of the IJ’s decision (if they are different as they were here), is the critical
date in determining whether evidence is new. Id. In Chen’s case, the testimony was
completed on June 19, 2002 “with the exception of questions regarding [Liu’s] I-94, if
he’s able to locate it.” A.R. 403.8 The hearing was continued over on March 18, 2003,
and then, on July 29, 2003, the government asserted that it had “diligently [run] the I-94
number [supplied by Liu] ... through the system” but could not locate another “A” file for
him, A.R. 423. Thus, although the proceedings were continued a number of times to
permit Chen to submit an additional document, the record discloses that there were no
further hearings on the merits after June 19, 2002. Therefore, on the record before us, any
evidence dated after June 19, 2002 is new. We note that the IJ’s decision is dated “August
1, 2003” throughout, A.R. 221-254, and also bears a date-stamp of “February 20 2004,”
A.R. 221. Although the actual date of the IJ’s decision is thus far from clear on this
record, there is no indication whatever that a merits hearing was held on either of these
dates. Accordingly, the Board abused its discretion in concluding that only the Aird
affidavit was new.
The other new evidence also was potentially material. The 2003 Changle City
Family-Planning Administration decision stated that where either parent remains a Chinese
national with no permanent residence overseas, any child of such a couple is deemed a
8
An I-94 Arrival-Departure Record is regarded as an identification document, see,
e.g., United States v. Hammoude, 51 F.3d 288, 292 (D.C. Cir. 1995). Liu wished to
submit this item to the IJ.
8
Chinese national and shall be treated as such for domestic administrative purposes. See
Guo, 463 F.3d at 112-13 (discussing contents of 2003 Changle City decision). The
decision states that Chinese nationals having children in violation of China’s
family-planning policies will be sanctioned according to family-planning rules and
regulations enforced at the local level. Id. The Fujian Province Department of
Family-Planning Administration affirmed the Changle City opinion. Id. (discussing
contents of 2003 Fujian Province decision). In The New York Times article, “China
sentences blind activist to prison,” it states: “But Shandong government officials turned
bitterly against [Chen Guangcheng] in early 2005. It was then that he sought to represent
thousands of local residents forced to abort fetuses or submit to sterilization operations so
that Linyi City, Shandong, could meet its population-control quotas.” Chen notes in her
brief on appeal that the 2006 State Department Report on Country Conditions in China
confirms Chen Guangcheng’s plight for having exposed family planning abuses, and
suggests that the central government is punishing whistle blowers, rather than local
officials who use forcible measures to accomplish China’s family planning policy.9
As we recently emphasized in Zheng v. U.S. Att’y Gen., — F.3d — , 2008 WL
5006072 (3d Cir. November 26, 2008), the Board has “‘a duty to explicitly consider any
9
Chen has asked us to take judicial notice of the 2006 State Department Country
Report on China, which she did not submit with her motion to reopen. Insofar as we do
not reach the substantive issue of changed circumstances in China, and are remanding, we
think it more appropriate for her to make a request that the Board take administrative
notice of the Report.
9
country conditions evidence submitted by an applicant that materially bears on his claim,”
and “[a] similar, if not greater, duty arises in the context of motions to reopen based on
changed country conditions.’” Id. at *8 (quoting Guo, 463 F.3d at 115). See also Yang v.
Gonzales, 427 F.3d 1117, 1122 (8th Cir. 2005) (“If an agency makes a finding of fact
without mentioning or analyzing significant evidence, its decision should be
reconsidered.”) (internal quotation marks omitted). Furthermore, we noted with approval
the Eleventh Circuit Court of Appeals decision in Li v. U.S. Att’y Gen., 488 F.3d 1371,
1375-76 (11th Cir. 2007), holding that petitioners’ evidence in that case concerning the
conduct of local officials in Fujian, including the 2005 State Department Country Report,
clearly satisfied the criteria for a motion to reopen removal proceedings. Zheng, 2008 WL
5006072, at *7. In Chen’s case, the Board erred with respect to identifying what evidence
was new and failed to identify and discuss the various statements contained in the record
before it that she submitted with her motion to reopen. Given the Board’s failure to
discuss most of the evidentiary record, a remand is necessary. Although we will also
vacate the Board’s order, as in Zheng, 2008 WL 5006072, at *10, we express no view
whatever on whether the Board reached the correct result that the evidence Chen presented
should not lead to the reopening of her proceedings.
In closing out its written August 13, 2007 decision in Chen’s case, the Board stated
that “we cannot find that the evidence the respondent submitted establishes that
circumstances in China have changed since the respondents’ hearing before the
10
Immigration Judge. See Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007).” We realize
that S-Y-G- is the decision issued by the Board following the Second Circuit’s remand in
Guo, 463 F.3d 109, and, in it, the Board held that the applicant did not meet her burden to
show that the proffered evidence reflected “changed circumstances” in China.
Specifically, the Board held that the documents submitted, which, as in Chen’s case,
included the 2003 Changle City Administrative Opinion and the 2003 Fujian Province
Administrative Decision, reflected general family planning policies in her home province
that did not specifically show any likelihood that she or similarly situated Chinese
nationals would be persecuted as a result of the birth of a second child in the United
States. Id. at 254-256. With respect to one petitioner whose children were born many
years apart, the Board cited the State Department’s 2005 Profile of Asylum Claims and
Country Conditions for the proposition that provincial law indicates that married couples
may apply to have a second child within certain time frames that are being increasingly
relaxed. Id. at 256. When the petitioners again sought review in the Second Circuit, their
petition for review was denied. See Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008).
We will not attempt to intuit from the Board’s citation, without discussion, to S-Y-
G- that the new relevant evidence submitted by Chen actually was considered and rejected
by the Board. The Board did not mention the 2003 Changle City Administrative Opinion
or 2003 Fujian Province Administrative Decision in its decision, and the Board
specifically stated that only the Aird affidavit was new. The Board’s decision that the
11
evidence submitted did not establish that circumstances in China had changed since Chen
and Liu’s hearing rested on that incorrect finding. Furthermore, Chen submitted new
evidence with her motion to reopen, The New York Times article, which discussed an
activist’s representation of thousands of local residents forced to abort fetuses or submit to
sterilization, that was not considered or addressed by the Board in S-Y-G-. On remand,
the Board should reconsider the appeal and make a more complete analysis of the evidence
Chen submitted. With respect to The New York Times article, the Board may also wish to
take administrative notice of the 2006 State Department Country Report on China, see
generally Shao, 546 F.3d at 166 (discussing when taking administrative notice of recent
State Department reports does not violate due process right of aliens).
For the foregoing reasons, we will grant the petition for review, vacate the Board’s
order denying the motion to reopen, and remand the matter for further proceedings
consistent with this Opinion.
12 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047567/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2527
___________
Denise D. Toledo, *
*
Movant - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
United States of America, *
*
Respondent - Appellee. *
___________
Submitted: May 14, 2009
Filed: September 11, 2009
___________
Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Denise D. Toledo pleaded guilty to one count of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). She was sentenced to the statutorily
mandated minimum of 180 months’ imprisonment as an armed career criminal
pursuant to 18 U.S.C. § 924(e). Toledo appeals from the denial of her motion
pursuant to 28 U.S.C. § 2255 to vacate her sentence based on ineffective assistance
of counsel. She alleges that she is entitled to post-conviction relief because her
attorney withdrew objections to her presentence report that, if sustained, likely would
have resulted in a lesser sentence. In particular, she asserts that the predicate offenses
relied on at sentencing no longer constitute violent felonies following the Supreme
Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008). The district court1
denied Toledo’s motion but granted a certificate of appealability. We affirm.
Toledo claims that it was ineffective assistance on the part of her sentencing
counsel to withdraw objections to the recommendation in the presentence report that
she be sentenced as an armed career criminal. The presentence report stated that
Toledo had three earlier convictions for violent felonies, all in California state court:
two convictions for making terrorist threats in violation of California Penal Code §
422, and one conviction for grand theft from the person, California Penal Code §
487(c). Based on these earlier convictions, the presentence report recommended that
Toledo be sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e).
Toledo’s then-appointed counsel filed objections to the presentence report, including
an objection to her classification as an armed career criminal. That attorney then left
the Office of the Federal Public Defender, and Toledo was later appointed substitute
counsel at sentencing. Toledo’s substitute counsel withdrew all earlier objections to
the presentence report, including the objection to Toledo’s status as an armed career
criminal. Toledo did not directly appeal her sentence but instead filed a pro se motion
to vacate her sentence pursuant to 28 U.S.C. § 2255. The district court denied her
motion, finding that she suffered no prejudice, and granted a certificate of
appealability.
We review claims of ineffective assistance of counsel as mixed questions of law
and fact. Keys v. United States, 545 F.3d 644, 646 (8th Cir. 2008). “We review the
district court’s factual findings for clear error and the legal question whether those
findings amount to ineffective assistance de novo.” Id. In order to prevail on an
ineffective assistance of counsel claim, Toledo must show that (1) her “trial counsel’s
performance was so deficient as to fall below an objective standard of reasonable
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
-2-
competence”; and (2) “the deficient performance prejudiced [her] defense.” Nave v.
Delo, 62 F.3d 1024, 1035 (8th Cir. 1995) (citation omitted). Under the first element,
there is a “strong presumption that counsel’s conduct falls within the wide range of
professionally reasonable assistance and sound trial strategy.” Garrett v. United
States, 78 F.3d 1296, 1301 (8th Cir. 1996) (citing Strickland v. Washington, 466 U.S.
668, 689 (1984)). Assuming that counsel’s performance has been deficient, the
second element of prejudice requires a “reasonable probability that, but for a counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Garrett, 78 F.3d at 1301 (citations omitted).
Here, the conduct of Toledo’s counsel in withdrawing objections to Toledo’s
status as an armed career criminal was objectively reasonable. Toledo had two earlier
convictions under California’s terrorist threat statute, which provides that “[a]ny
person who willfully threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the statement . . . is to be
taken as a threat, even if there is no intent of actually carrying it out” is subject to a
felony charge of criminal threats. Cal. Penal Code § 422. At the time of her
sentencing, violation of this statute constituted a violent felony. See Rosales-Rosales
v. Ashcroft, 347 F.3d 714, 717 (9th Cir. 2003) (California Penal Code § 422 is a crime
of violence for purposes of finding an alien deportable as an aggravated felon); see
also United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir. 2009) (Minnesota’s
criminal threat statute addresses threats to commit crimes of violence2); United States
v. Boaz, 558 F.3d 800, 807 (8th Cir. 2009) (threats of death or serious bodily injury);
United States v. Reliford, 471 F.3d 913, 917 (8th Cir. 2006) (Kansas’s criminal threat
statute includes threat to commit violence communicated with intent to terrorize).
Toledo also had an earlier conviction for grand theft from the person pursuant to
California Penal Code § 487(c), which is violated “[w]hen the property is taken from
2
We construe the terms “violent felony” and “crime of violence” as being
interchangeable. United States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008); United
States v. Spudich, 510 F.3d 834, 836 (8th Cir. 2008).
-3-
the person of another.” This, too, constituted a violent felony at the time of Toledo’s
sentencing. See United States v. Wofford, 122 F.3d 787, 793 (9th Cir. 1997)
(California Penal Code § 487(c) is a violent felony for purposes of mandatory
minimum sentence as an armed career criminal); see also United States v. Hudson,
414 F.3d 931, 935-36 (8th Cir. 2005) (Minnesota’s felony theft from a person statute
qualifies as a violent felony); United States v. Strong, 415 F.3d 902, 908 (8th Cir.
2005) (Missouri’s stealing from a person statute constitutes a crime of violence);
United States v. Johnson, 326 F.3d 934, 936-37 (8th Cir. 2003) (Iowa’s felony theft
from a person statute constitutes a crime of violence). Toledo, therefore, had three
earlier convictions for violent felonies, qualifying her for armed career criminal status
pursuant to 18 U.S.C. § 924(e) .
Under the state of the law at the time of sentencing, Toledo’s counsel simply
withdrew objections that had no legal support. When Toledo was sentenced, her
predicate offenses were indeed violent felonies.3 It is not ineffective assistance of
counsel to withdraw objections that have no support in the law. See Hunter v. United
States, 559 F.3d 1188, 1191 (11th Cir. 2009) (not ineffective assistance of counsel to
fail to object when precedent foreclosed the argument that carrying a concealed
weapon was not a violent felony under the Armed Career Criminal Act), petition for
cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009) (No. 09-122). Accordingly,
sentencing counsel’s performance did not fall “below an objective standard of
reasonable competence.” Nave, 62 F.3d at 1035 (citation omitted).
3
Toledo impliedly concedes that the state of the law at the time of her
sentencing did not support an objection to the three earlier convictions being classified
as violent felonies, as her only argument is that the objection should have been
preserved in anticipation of Begay.
-4-
Nonetheless, Toledo argues that the Supreme Court’s decision in Begay, 128
S. Ct. 1581, renders the crime of grand theft from the person a non-violent felony.4
However, the argument that this crime would no longer qualify as a violent felony
misses the mark. We do not evaluate counsel’s performance using “the clarity of
hindsight, but in light of the facts and circumstances at the time of trial.” Carter v.
Hopkins, 92 F.3d 666, 669 (8th Cir. 1996) (citation omitted). Counsel is not
accountable for unknown future changes in the law. See Horne v. Trickey, 895 F.2d
497, 500 (8th Cir. 1990) (not ineffective assistance of counsel to fail to foresee “a
significant change in existing law.”); Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir.
1999) (not ineffective assistance of counsel to “fail[] to anticipate a change in the
law”). Here, the Supreme Court did not grant certiorari in Begay until September 25,
2007, nearly a year after Toledo’s sentencing. Thus, sentencing counsel’s
performance was not constitutionally deficient for failure to anticipate future changes
in the law. See Hunter, 559 F.3d at 1191 (rejecting similar arguments where crime
was a violent felony at sentencing but is no longer because of the Supreme Court’s
subsequent decision in Begay).
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
4
Toledo conceded at oral argument that the decision in Begay does not change
the categorization of the crime of terrorist threats as a violent felony.
-5- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/997816/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7307
JULIAN EDWARD ROCHESTER,
Petitioner - Appellant,
versus
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS;
CHARLES M. CONDON, Attorney General,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Henry M. Herlong, Jr., District
Judge. (CA-97-3924-20AJ)
Submitted: January 21, 1999 Decided: February 9, 1999
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Julian Edward Rochester, Appellant Pro Se. Donald John Zelenka,
Chief Deputy Attorney General, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Julian Rochester appeals 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 district court’s
opinion and find no reversible error. Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal on the reasoning
of the district court. See Rochester v. South Carolina Dep’t of
Corrections, No. CA-97-3924-20AJ (D.S.C. July 21, 1998). We dis-
pense 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/3047575/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-21-2009
USA v. Tammie Luettgen
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1411
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Tammie Luettgen" (2009). 2009 Decisions. Paper 2008.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2008
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1411
UNITED STATES OF AMERICA
v.
TAMMIE LUETTGEN,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-06-cr-00056-001)
District Court Judge: Honorable William W. Caldwell
Submitted Under Third Circuit L.A.R. 34.1(a)
January 8, 2009
Before: FUENTES, FISHER and ALDISERT, Circuit Judges
(Opinion Filed: January 21, 2009)
OPINION
FUENTES, Circuit Judge:
Tammie Luettgen’s attorney has filed a motion to withdraw as counsel, and
submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Luettgen has not
filed an opposing pro se brief. We agree that there are no nonfrivolous issues for appeal
and accordingly we grant the motion to withdraw as counsel and affirm the sentence
imposed by the District Court.
Because we write for the parties, we discuss only the facts relevant to our
conclusion. While on probation, Luettgen was arrested for violating the conditions of her
supervised release. On January 31, 2008, at the Supervised Release Revocation Hearing,
Luettgen admitted to misusing a company credit card for personal expenses, submitting a
false travel itinerary to the Probation Office, and failing to notify the Probation Office
about her change in employment. The Probation Office determined that these were Grade
C violations, with a Criminal History Category I, which carried a recommended sentence
of three to nine months. Luettgen requested a sentence of in-house detention, or in the
alternative, community confinement with work release. After consideration, the District
Court imposed a sentence of five months imprisonment because it found that Luettgen
had a “troubling history of fraud, theft, and deception.”
Third Circuit Local Appellate Rule 109.2(a) provides: “Where, upon review of the
district court record, trial counsel is persuaded that the appeal presents no issue of even
arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant
to Anders v. California . . . .” Our inquiry is twofold: “(1) whether counsel adequately
fulfilled the rule’s requirements; and (2) whether an independent review of the record
presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001).
2
These conditions are met here. Luettgen’s counsel identified three possible issues
for appeal: (1) whether the District Court lacked jurisdiction; (2) whether the admission
of guilt was counseled and voluntary; and (3) whether the sentence was reasonable. His
Anders brief adequately sets forth the reasons why these issues lack merit, and an
independent review of the record shows no reason to disagree.
First, the District Court clearly had subject matter jurisdiction under 18 U.S.C.
§ 3231, and was authorized to revoke a sentence of supervised release under 18 U.S.C.
§ 3583(e). Moreover, Luettgen’s admissions of guilt were by all appearances counseled
and voluntary, particularly since she never raised any objections on this basis. Finally,
the sentence imposed was well within the correctly calculated guideline imprisonment
range of three to nine months, and was supported by an adequate statement of reasons,
namely that Luettgen had “a troubling history of fraud, theft, and deception.”
For the foregoing reasons, we grant counsel’s motion to withdraw and affirm the
District Court’s order revoking Luettgen’s supervised release and sentencing her to five
months’ imprisonment.
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047577/ | FILED
FOR PUBLICATION MAR 06 2007
CATHY A. CATTERSON, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PROGRESSIVE WEST INSURANCE No. 06-17367
COMPANY,
D.C. No. CV-06-01785-FCD
Plaintiff - Appellant,
v. OPINION
SIMON H. PRECIADO,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted February 12, 2007
San Francisco, California
Filed March 6, 2007
Before: B. FLETCHER, CLIFTON, and IKUTA, Circuit Judges.
Opinion by Judge Ikuta, Circuit Judge:
This appeal raises the question whether the Class Action Fairness Act
("CAFA"), Pub. L. No. 109-2, § 5, 119 Stat. 12 (2005), gives the federal district
court removal jurisdiction over this action. We conclude that it does not, and
affirm the district court.
Factual and Procedural Background
On December 22, 2004, Progressive West Insurance Company
("Progressive") filed a breach of contract action in California state court against its
insured, Simon Preciado. Progressive sought $5,000 in reimbursement for medical
payments it made on behalf of Preciado. On February 17, 2005, Preciado filed a
cross-complaint1 against Progressive, which alleged (among other things) that
Progressive's policy of claiming such reimbursements was an unfair business
practice under California's unfair competition law, California Business and
Professions Code § 17200 et seq. Preciado sought remedies "on behalf of the
general public" for these unfair business practices but failed to allege the elements
of a class action necessary to bring a representative claim under California's unfair
competition law. See CAL. BUS. & PROF. CODE § 17203 (West 2005). On August
7, 2006, the state trial court granted Preciado leave to remedy this defect, and
Preciado subsequently filed an amended cross-complaint asserting the required
class action elements.
After Preciado filed the amended cross-complaint, Progressive removed the
action to federal district court, asserting federal jurisdiction under CAFA. See 28
1
In federal practice, Preciado's "cross-complaint" would be deemed a
"counterclaim." See CAL. CIV. PROC. CODE § 428.10; FED. R. CIV. P. 13.
-2-
U.S.C. § 1332(d). The federal district court remanded the action to state court.
Progressive appealed the remand order, and we accepted the appeal pursuant to
section 5 of CAFA, 28 U.S.C. § 1453(c)(1).
Analysis
Signed into law on February 18, 2005, CAFA significantly expanded federal
subject matter and removal jurisdiction over class actions that commenced on or
after CAFA's effective date. "CAFA amends, inter alia, the federal diversity
statute, 28 U.S.C. § 1332, and now vests original jurisdiction for class actions in
federal court where there is minimal diversity and the amount in controversy
exceeds $ 5,000,000." Bush v. Cheaptickets, Inc., 425 F.3d 683, 684 (9th Cir.
2005) (citing 28 U.S.C. § 1332(d)). CAFA makes it easier for litigants to remove
class actions to federal district courts. See 28 U.S.C. § 1453(b). It also gives
appellate courts jurisdiction over appeals from orders remanding class actions to
state court by creating an exception from the general rule in 28 U.S.C. § 1447(d)
that such orders are not reviewable. See 28 U.S.C. § 1453(c)(1).
The question we must answer is whether CAFA authorized Progressive's
removal of this class action. By its express terms, CAFA applies only to actions
"commenced on or after" February 18, 2005. Pub. L. 109-2, § 9, 119 Stat. 14 (note
on 28 U.S.C. § 1332). As noted above, both the original complaint and the
-3-
original cross-complaint in this action were filed before February 18, 2005. If
either of these pleadings is deemed to "commence" this action for purposes of
CAFA, the class action is not covered by CAFA.
Although CAFA does not define the term "commenced," we have held that
an action commences for purposes of CAFA when a suit becomes "a cognizable
legal action in state court" under "[a] state's own laws and rules of procedure."
Bush, 425 F.3d at 686. As this action arose in California state court, Bush requires
us to apply California's laws and rules of procedure to determine when it
commenced. See id. at 686–87. Under California law, an action commences when
the "complaint" is filed with the court. CAL. CIV. PROC. CODE §§ 350, 411.10
(West 2006); Bush, 425 F.3d at 686–87. The California Code of Civil Procedure
defines a "complaint" to include a cross-complaint, but does not define
"complaint" to include an amended cross-complaint. See CAL. CIV. PROC. CODE
§§ 426.10, 431.30, 438, 581, 583.110 (West 2006). Based on these California
statutes, Preciado's class action against Progressive commenced when Preciado
filed his original cross-complaint on February 17, 2005.
Progressive does not dispute this statutory analysis. Rather, Progressive
asserts that under California's "relation-back" doctrine, Preciado's amended cross-
complaint commenced a new action because it substantially changed the nature of
-4-
the action from an individual action to a representative action. Progressive urges
us to follow the Seventh Circuit's reasoning that an amended action may
commence a new action for purposes of removal under CAFA if it does not "relate
back" to an earlier filing. See Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805 (7th
Cir. 2005); see also Prime Care of Northeast Kan., LLC v. Humana Ins. Co., 447
F.3d 1284, 1285–89 (10th Cir. 2006) (discussing various positions taken by the
Fifth, Seventh, Eighth and Tenth Circuits on the application of the relation-back
doctrine in this context).
We, however, are bound by Bush, which requires us to consider whether
California's "laws and rules of procedure" permit application of the relation-back
doctrine in the circumstances before us. Bush, 425 F.3d at 686. California courts
have applied the relation-back doctrine in only two contexts. See Barrington v. A.
H. Robins Co., 702 P.2d 563, 566 (Cal. 1985). First, California courts have long
applied the relation-back doctrine "to determine the time of commencement of an
action for the purpose of the statute of limitations." Id. at 565. In this context, "an
amended complaint is not barred by the statute of limitations . . . if the amended
complaint relates back to a timely original complaint." Id.
The California Supreme Court has extended application of this doctrine to
one additional context, namely, to a statute requiring dismissal of an action for
-5-
failure to serve a summons within three years of its commencement. Id. at 566. In
Barrington, the California Supreme Court noted that "because the relation back
rule has so far been confined to the statute of limitations," the court below
"shrank" from applying the doctrine to this new context. Id. This was error,
however, because the nature and purpose of the statute of limitations and the
failure-to-serve statute were "virtually identical." Id. Both statutes "were
designed to move suits expeditiously toward trial," and both "conflict with the
strong public policy that seeks to dispose of litigation on the merits rather than on
procedural grounds." Id. (internal quotations omitted). In light of the similarity of
the two statutes and this strong public policy, the California Supreme Court
concluded that the relation-back doctrine, an exception "created to mitigate the
harshness of the statute of limitations," should be extended to mitigate the
harshness of the failure-to-serve statute. Id.
Barrington makes clear that California courts apply the relation-back
doctrine only in limited circumstances. Indeed, we are not aware of any California
Supreme Court decision since Barrington that has even considered extending the
relation-back doctrine to any additional contexts. Based on the reasoning in
Barrington, the California Supreme Court would extend the doctrine, if at all, only
-6-
to statutes that are "virtually identical" to the statute of limitations or the failure-
to-serve statute. See id.
CAFA is not "virtually identical" to these statutes. CAFA's effective date
does not bar any class actions that might otherwise be litigated on the merits; it
merely deprives litigants of one basis for removing the actions to federal court.
The parties have cited no authority, nor have we found any, indicating that
California courts have applied the relation-back doctrine to give litigants the
benefit of a new statutory regime, and Barrington suggests that applying the
doctrine in such a context would be an error. Therefore, we must conclude that
California's relation-back doctrine does not apply in this context. Because
Preciado commenced his class action lawsuit for purposes of CAFA on February
17, 2005, one day before CAFA became effective, Progressive cannot invoke
CAFA's removal provision.
This conclusion would not change if Progressive were able to point us to
California law applying the relation-back doctrine in a manner supporting
Progressive's position. Even if we assumed that CAFA is applicable to Preciado's
class action, we would agree with the district court's determination that
Progressive lacks the authority to invoke CAFA's removal provision.
-7-
The district court remanded this class action on the ground that a
plaintiff/cross-defendant, such as Progressive, is not a "defendant" for purposes of
the federal removal statutes and therefore cannot remove an action to federal
court. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941) (interpreting
the provision allowing an action to be removed "by the defendant or defendants"
in former removal statute 28 U.S.C. § 71 as precluding a plaintiff/cross-defendant
from removing an action on the basis of a counterclaim). Progressive argues that
given CAFA's purpose to increase class action litigants' access to federal courts,
we should interpret CAFA as allowing a plaintiff forced to defend a class action
on the basis of a cross-complaint to have the same right to remove the class action
as a defendant. However, CAFA is not susceptible to such an interpretation.
Although CAFA does eliminate three significant barriers to removal for
qualifying actions,2 CAFA does not create an exception to Shamrock's
longstanding rule that a plaintiff/cross-defendant cannot remove an action to
2
Specifically, CAFA's removal provision, 28 U.S.C. § 1453(b), expressly
"exempts qualifying actions from the § 1446(b) prohibition of removal more than
1 year after commencement of the [state court] action." Abrego v. Dow Chem. Co,
443 F.3d 676, 681 (9th Cir. 2006) (per curiam) (alteration in original) (internal
quotation marks omitted). CAFA also "overrides the judge-created requirement
that each defendant consent to removal." Id. Finally, it "allows for removal of
actions without regard to whether any defendant is a citizen of the State in which
the action is brought." Id. (internal quotation marks omitted).
-8-
federal court. CAFA's removal provision, section 1453(b), provides that "[a] class
action may be removed to a district court . . . in accordance with section 1446."
Section 1446, in turn, sets forth the removal procedure for "[a] defendant or
defendants desiring to remove any civil action . . . from a State court." 28 U.S.C.
§ 1446(a) (emphasis added). The interpretation of "defendant or defendants" for
purposes of federal removal jurisdiction continues to be controlled by Shamrock,
which excludes plaintiff/cross-defendants from qualifying "defendants."
Nor can we accept Progressive's invitation to read CAFA liberally as
making a sub silentio exception to Shamrock. We have declined to construe
CAFA more broadly than its plain language indicates. See Abrego v. Dow Chem.
Co, 443 F.3d 676 (9th Cir. 2006) (per curiam). "Faced with statutory silence . . .,
we presume that Congress is aware of the legal context in which it is legislating."
Id. at 683–84. This presumption is especially appropriate here, where "[t]he legal
context in which the 109th Congress passed CAFA into law features a
longstanding, near-canonical rule" that a state plaintiff forced to defend on the
basis of a cross-complaint is without authority to remove. See id. at 684.
Therefore, we must conclude CAFA does not alter the longstanding rule
announced in Shamrock that precludes plaintiff/cross-defendants from removing
class actions to federal court. For this reason, Progressive would lack statutory
-9-
authority to remove the action pursuant to CAFA even if the action had
commenced after CAFA’s effective date.
In conclusion, we hold that under California's laws and rules of procedure,
Preciado commenced his class action lawsuit for purposes of CAFA on February
17, 2005. As this was one day before CAFA became effective, Progressive could
not remove this action pursuant to section 1453(b). Moreover, even if CAFA
were applicable to Preciado's class action, the district court was correct to remand
the action because Progressive is a plaintiff/cross-defendant and not authorized to
remove an action under section 1453.
AFFIRMED.
-10-
COUNSEL LISTING
Craig E. Farmer, Farmer Smith Law Group, LLP, Sacramento, California;
John B. Moorhead and Paul Karlsgodt, Baker & Hostetler, LLP, Denver,
Colorado, for Appellant.
Michael J. Bidart and Ricardo Echeverria, Shernoff Bidart & Darras, LLP,
Claremont, California, for Appellee.
-11- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047579/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1593
___________
Horizon Asset Management Inc., *
*
Plaintiff/Appellant, *
*
Michael Nettie; Iron Workers Local 16 *
Pension Fund; Feivel Gottlieb; Adele *
Lebowitz; Phyllis J. Winters; Doris *
Staehr; Raymond J. Kadigan; *
Momentum Partners; Stephen T. *
Hibbard, *
*
Plaintiffs, *
*
v. *
*
H&R Block, Inc.; Mark A. Ernst; *
William L. Trubeck, *
*
Defendants/Appellees, * Appeals from the United States
* District Court for the
Frank J. Cotroneo: James W. Yabuki; * Western District of Missouri.
Bret G. Wilson; Thomas M. Bloch; *
Donna R. Ecton; Henry F. Frigon; *
Roger W. Hale; Louis W. Smith; *
Rayford Wilkins, Jr.; David Bak, *
*
Defendants. *
___________
No. 08-1670
___________
Horizon Asset Management Inc.; *
Michael Nettie, *
*
Plaintiffs, *
*
Iron Workers Local 16 Pension Fund, *
*
Plaintiff/Appellant, *
*
Feivel Gottlieb; Adele Lebowitz; *
Phyllis J. Winters; Doris Staehr; *
Raymond J. Kadigian, *
*
Plaintiffs, *
*
Momentum Partners, *
*
Plaintiff/Appellant, *
*
Stephen T. Hibbard, *
*
Plaintiff, *
*
v. *
*
H&R Block, Inc.; Mark A. Ernst; *
William L. Trubeck; Frank J. Cotroneo; *
James W. Yabuki; Bret G. Wilson; *
Thomas M. Bloch; Donna R. Ecton; *
Henry F. D. Seip; Jeffrey E. Nachbor; *
Melanie K. Coleman, *
*
Defendants/Appellees. *
-2-
___________
Submitted: October 16, 2008
Filed: September 9, 2009 (Corrected 10/7/09)
___________
Before RILEY, BOWMAN, and COLLOTON, Circuit Judges.
___________
COLLOTON, Circuit Judge.
This case involves two appeals arising from the dismissal of a putative
consolidated class action against H&R Block, Inc. (“Block”), and individual
defendants who are corporate officers or directors of Block. First, Horizon Asset
Management Inc. (“Horizon”) appeals the merits of the dismissal, arguing that the
district court erred in concluding that Horizon failed adequately to plead scienter
under the heightened pleading requirements of the Private Securities Litigation
Reform Act of 1995 (“PSLRA”). Second, Momentum Partners and Iron Workers
Local 16 Pension Fund (“Iron Workers”) appeal the district court’s appointment of
Horizon as the sole lead plaintiff to pursue all claims against the defendants. Iron
Workers contends that the district court’s ruling prevented them from litigating the
merits of their derivative claims against the individual defendants, because Horizon
refused to include the derivative claims in its consolidated complaint, and the district
court subsequently dismissed the complaint and the entire case. We affirm in part,
reverse in part, and remand for further proceedings.
I.
Block is a publicly traded corporation that provides a diverse range of tax,
investment, mortgage, and business services and products. In June 2005, Block
announced that it would restate its financial results filed with the Securities and
Exchange Commission (“SEC”) for fiscal years 2003 and 2004 and the first three
-3-
quarters of fiscal year 2005. The restatement corrected, among other things, errors in
the calculation of Block’s corporate income tax. In February 2006, Block announced
the need for a second restatement of its financial results for fiscal years 2004 and 2005
and the first two quarters of fiscal year 2006, which pertained primarily to errors in
determining Block’s state effective income tax rate. Also in early 2006, the Attorney
General of California commenced an action against Block, alleging that its Refund
Anticipation Loan program violated state and federal law, and the Attorney General
of New York filed suit asserting that Block fraudulently marketed its Express
Individual Retirement Account (“IRA”) program.
As a result of these events, shareholders of Block filed nine separate actions in
state and federal court. The cases were consolidated in the district court, and the court
appointed Horizon the lead plaintiff. Horizon filed a consolidated class action
complaint bringing securities fraud claims under section 10(b) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5. See 15 U.S.C. § 78j(b); 17 C.F.R.
§ 240.10b-5. The complaint alleged that Block and individual defendants, including
Mark A. Ernst, Block’s Chairman, President, and Chief Executive Officer, and
William L. Trubeck, Block’s Executive Vice President and Chief Financial Officer,
made false and misleading statements to public investors regarding Block’s financial
condition. Specifically, Horizon alleged that Block misled investors by (1) failing to
disclose the unlawful nature of its Refund Anticipation Loan and Express IRA
programs, which artificially inflated reported earnings; (2) failing to disclose its lack
of safeguards and procedural controls to ensure accurate financial statements; and (3)
misstating financial results due to errors in calculating its state effective income tax
rate, which resulted in Block’s filing restatements of its financial results. Horizon also
asserted an additional claim against the individual defendants, alleging liability of
“controlling persons” under section 20(a) of the Securities Exchange Act of 1934. See
15 U.S.C. § 78t(b).
The district court granted Block’s motion to dismiss the case. The court found
that Horizon failed to plead adequately that Block had made any false statements, with
-4-
the exception of the financial results that were based on the tax calculation errors. See
In re H&R Block Sec. Litig., 527 F. Supp. 2d 922, 926-28 (W.D. Mo. 2007). The
court concluded that Block admitted the falsity of the financial results by restating
them in a subsequent SEC filing, id. at 928, but dismissed the claims because Horizon
failed to plead scienter adequately. Id. at 930. Because the control-person claims
were predicated on the underlying securities fraud violations, the court determined
that those claims also failed. The court granted Horizon leave to amend its complaint,
but only with respect to the false statements of financial results. Id. at 931.
Horizon filed an amended consolidated class action complaint that removed its
claims regarding the Refund Anticipation Loan and Express IRA programs and added
some additional detail to its other allegations. The district court again granted Block’s
motion to dismiss, concluding that Horizon still failed to plead scienter adequately.
See In re H&R Block Sec. Litig., No. 06-0236, 2008 WL 482403, at *6-7 (W.D. Mo.
Feb. 19, 2008). Horizon appeals the dismissal of the amended complaint.
II.
To state a private securities fraud claim under section 10(b) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5, a plaintiff must allege: “(1) a material
misrepresentation (or omission); (2) scienter, i.e., a wrongful state of mind; (3) a
connection with the purchase or sale of a security; (4) reliance, often referred to in
cases involving public securities markets (fraud-on-the-market cases) as ‘transaction
causation’; (5) economic loss; and (6) ‘loss causation,’ i.e., a causal connection
between the material misrepresentation and the loss.” Dura Pharm., Inc. v. Broudo,
544 U.S. 336, 341-42 (2005) (internal citations omitted) (emphases omitted); see also
In re K-tel Int’l, Inc. Sec. Litig., 300 F.3d 881, 888 (8th Cir. 2002). The district court
dismissed Horizon’s complaint for failing to plead adequately the element of scienter,
and that is the only issue on appeal. We review the district court’s dismissal de novo.
Elam v. Neidorff, 544 F.3d 921, 926 (8th Cir. 2008).
-5-
The PSLRA imposes heightened pleading requirements on private securities
actions “to curb perceived abuses” of such actions, including “nuisance filings,
targeting of deep-pocket defendants, vexatious discovery requests and manipulation
by class action lawyers.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
320 (2007) (internal quotation omitted). As relevant to the pleading of scienter, the
PSLRA instructs that “the complaint shall, with respect to each act or omission
alleged to violate this chapter, state with particularity facts giving rise to a strong
inference that the defendant acted with the required state of mind.” 15 U.S.C.
§ 78u-4(b)(2). The required state of mind for private securities fraud actions is
“‘scienter, i.e., the defendant’s intention to deceive, manipulate, or defraud,’” or the
defendant’s “severe recklessness.” In re Ceridian Corp. Sec. Litig., 542 F.3d 240, 244
(8th Cir. 2008) (quoting Tellabs, 551 U.S. at 313).
“To determine whether the plaintiff has alleged facts that give rise to the
requisite ‘strong inference’ of scienter,” we must weigh “plausible nonculpable
explanations for the defendant’s conduct” against inferences favoring the plaintiff’s
allegation of scienter. Tellabs, 551 U.S. at 323-24. Although the inference of scienter
need not be “the most plausible of competing inferences,” it “must be more than
merely reasonable or plausible – it must be cogent and at least as compelling as any
opposing inference one could draw from the facts alleged.” Id. at 324 (internal
quotation omitted); see also Ceridian, 542 F.3d at 244. In conducting this
comparison, we “accept all factual allegations in the complaint as true,” Tellabs, 551
U.S. at 322, and may take judicial notice of Block’s public SEC filings. See Fla. State
Bd. of Admin. v. Green Tree Fin. Corp., 270 F.3d 645, 663 (8th Cir. 2001); United
States v. Eagleboy, 200 F.3d 1137, 1140 (8th Cir. 1999).1
While we assess Horizon’s factual allegations “holistically” and “collectively”
rather than “in isolation,” Tellabs, 551 U.S. at 326, Horizon must nevertheless raise
1
We therefore grant Horizon’s motion that we take judicial notice of Block’s
Form 8-K filed with the SEC on June 8, 2005.
-6-
a strong inference of scienter for each defendant and with respect to each alleged
misrepresentation. See Phillips v. Scientific-Atlanta, Inc., 374 F.3d 1015, 1018 (11th
Cir. 2004) (citing 15 U.S.C. § 78u-4(b)(2)); see also K-Tel, 300 F.3d at 896 (“taking
each defendant individually” when analyzing the pleading of scienter); cf. Kushner v.
Beverly Enters., Inc., 317 F.3d 820, 827 (8th Cir. 2003) (finding no strong inference
of scienter when, inter alia, the “complaint makes no particular assertion of which
defendant was responsible for which statement or omission or how any defendant
participated in the alleged scheme”). Thus, we must consider the allegations against
each defendant – Ernst, Trubeck, and Block – separately. Because Horizon’s
arguments against Ernst and Trubeck are substantially similar, however, we will
discuss both individual defendants together before turning to Block.
A.
The only false statements that Horizon alleges were made by Ernst and Trubeck
are the financial results misstated in nine of Block’s SEC filings from March 16, 2004
to December 12, 2005. See H&R Block, 527 F. Supp. 2d at 926-28. Specifically,
Horizon cites false financial results that were later restated in Block’s second
restatement on March 31, 2006. Although the exact dollar amounts varied, all nine
filings included errors in the reporting of state income tax expense, deferred income
tax assets, accrued income taxes, and other accounts in Block’s statement of income
and balance sheets that are calculated from these figures. As Block explained in its
second restatement of financial results, these misstatements were caused by “errors
in determining the Company’s state effective income tax rate, including errors in
identifying changes in state apportionment, expiring state net operating losses and
related factors, for the fiscal years ended April 30, 2005 and 2004, and the related
fiscal quarters.”
The nine SEC filings that contained the false financial results restated in the
second restatement can be grouped into three relevant time periods. The first period
includes just one statement, and covers the time until the internal control failures in
-7-
corporate tax were allegedly discovered by senior management in April 2004. The
second period lasts from when senior management allegedly became aware of internal
control failures until Block announced the need for the first restatement of financial
results on June 8, 2005, and includes five statements. The final period runs from
when Block announced the first restatement until it announced the second restatement,
and it includes the last three statements.
1.
The first false statement was made on March 16, 2004. Because Trubeck did
not begin his employment with Block until October 4, 2004, Horizon cannot state a
claim against him based on this first statement. There is also a time problem with
respect to Ernst. Horizon alleges that Ernst knew of accounting problems “[n]o later
than April 2004,” that is, no later than a month after the first false statement.
Horizon does allege that Tim Mertz, Block’s vice president for corporate tax,
told a confidential witness in 2001 or 2002 that “there were always problems with not
reconciling tax accruals and tax liabilities on the state level. This was common
knowledge in the accounting department.” This allegation, however, tells us nothing
about Ernst’s state of mind because he was not a part of the accounting department.
Horizon contends, based on the statements of a confidential witness, that “whatever
knowledge Mertz had about the Company, he shared with Ernst,” but such a general,
conclusory statement provides only weak support, if any, for an inference of Ernst’s
scienter. That Mertz at times reported directly to Ernst, also does not provide a basis
to infer that Ernst knew everything that Mertz did. See Kushner, 317 F.3d at 828
(“[T]he assertion that someone who may have been involved in the scheme ‘reported’
to [the defendant] is not specific enough to support a strong inference that he knew of
or participated in the fraudulent practice while it was occurring.”).
Horizon further alleges that by the time of the first false statement, other
problems were developing in the corporate tax department, including a decision by
-8-
Mertz to outsource corporate tax staffing in 2001, Mertz’s dismissals of three to four
staff members, and the department’s failure to properly maintain and upgrade the tax
accounting software. Horizon fails to allege, however, that Ernst even knew about
these issues. The one alleged problem that we can readily infer Ernst would have
known about is Block’s operation without a chief financial officer for eleven months,
a period which included the date when this first false statement was made. But a
vacancy in a corporate office does not suggest an intent to deceive or severe
recklessness on the part of Ernst. Such a vacancy is equally consistent, if not more so,
with the normal course of business operations, including the process of finding a
replacement officer. Therefore, considering all of the allegations regarding Ernst’s
state of mind when making the first false statement, we conclude that Horizon has
failed to raise a strong inference of scienter.
2.
The second set of false statements were made after April 2004, when, according
to Horizon, “the internal controls in Corporate Tax were known to be ineffective by
the Company’s senior management, including defendants Trubeck and Ernst as well
as the Manager of Corporate Tax, Timothy Mertz.” Horizon based this assertion on
a statement made by Brad Campbell, Block’s Assistant Vice President for Internal
Audit, alleging that the discovery of the control failures, specifically the tax
accounting errors, occurred during the process of Block’s efforts to comply with
section 404 of the Sarbanes-Oxley Act of 2002. See 15 U.S.C. § 7262. The complaint
is unclear about whether Horizon had direct knowledge of Campbell’s statement or
whether Horizon is relying on the second-hand reporting of a confidential witness to
whom Campbell made the statement. In any event, the allegation does not
significantly support Horizon’s efforts to plead scienter.
The allegation is inaccurate in one important respect: It contends that Trubeck
had knowledge of the accounting problems in April 2004, six months before he began
working for Block. Thus, the allegation does not support an inference of scienter with
-9-
respect to Trubeck, and the credibility of the statement is weakened with respect to its
allegations against Ernst. It also reveals another fault in the complaint: Horizon has
not alleged how Campbell discovered that Ernst was aware of the control failures or
how Campbell would have a basis to know what Ernst knew. See In re Hutchinson
Tech., Inc. Sec. Litig., 536 F.3d 952, 959-60 (8th Cir. 2008) (discussing the need to
plead the basis of a witness’s knowledge in order to have the witness’s allegations
meet the standard of the PSLRA). Moreover, even if we were to assume that the
allegation were true and that Ernst knew about the accounting problems, Horizon does
not allege that Ernst knew that the financial results released in the five SEC filings
were false or that he intended to deceive the public.
According to Horizon, the inference that Ernst and Trubeck made these five
false statements – or, with respect to Trubeck, at least the last three statements made
while he was employed by Block – is further strengthened by the slow pace of the
internal investigation once the accounting errors were discovered. We disagree. The
facts pled in Horizon’s complaint demonstrate that as soon as the accounting errors
were discovered in April 2004, Mertz directed that an internal investigation begin, and
that the issue was then researched “intensively” by two different employees. At some
point prior to announcing its first restatement of financial results on June 8, 2005,
Block also consulted with its independent auditors to conclude that a restatement was
necessary. This was a prudent course of action that weakens rather than strengthens
an inference of scienter. See Higginbotham v. Baxter Int’l Inc., 495 F.3d 753, 761
(7th Cir. 2007) (“Taking the time necessary to get things right is both proper and
lawful. Managers cannot tell lies but are entitled to investigate for a reasonable time,
until they have a full story to reveal.”).
Throughout the period that Block investigated its internal control failures, and
as soon as Block’s senior management allegedly became aware of the problems, Block
repeatedly disclosed its corporate accounting control weaknesses. In its Form 10-K
filed on July 2, 2004, it stated:
-10-
[W]e identified a series of control weaknesses related to our corporate
tax accounting function. These weaknesses relate specifically to the
reconciliation and level of detailed support of both current and deferred
income tax accounts. We also determined an acceleration of taxable
income was warranted in one of our segments, however, there was no
change to our total income tax provision. Upon identification of these
control weaknesses, immediate corrective action was undertaken. Our
efforts to strengthen financial and internal controls continue. We expect
these efforts to be completed by the end of fiscal year 2005.
Block included similar disclosures in all of its SEC filings until it filed its first
restatement of financial results on July 29, 2005. These statements do not support an
inference that Ernst and Trubeck intended to deceive the public or acted with severe
recklessness. Rather, they portray managers who disclosed known accounting
problems and warned that work on their internal controls was continuing. Therefore,
considering all of Horizon’s allegations relating to the second set of false statements,
we conclude that Horizon has failed to raise a strong inference that Ernst or Trubeck
acted with scienter.
3.
Turning to the third and final set of false statements – those made after the need
for the first restatement was announced on June 8, 2005 – Horizon’s central argument
is that Ernst and Trubeck acted with scienter in continuing to state false financial
results when they knew that the first restatement did not correct all of the false
financial results and that a second restatement would be necessary. Horizon’s
strongest allegation to support this argument is a statement by a confidential witness
that he
was directly informed by his manager Brad Campbell and also Jeff
Brown, who worked in accounting, that senior management, including
Ernst and Trubeck, knew and had spoken of the fact, as of September or
October of 2005, that a further restatement of the Company’s financial
-11-
statements with respect to the misstated tax accruals would be necessary,
although they did not yet know the exact amount.
Assuming that the confidential witness was told this information at the
beginning of September, the allegation would be relevant to whether the last two false
statements in this time period were made with scienter. The allegation is not strong
and compelling, however, because it does not provide the sources’ basis of
knowledge. See Hutchinson, 536 F.3d at 959-60; Cornelia I. Crowell GST Trust v.
Possis Med., Inc., 519 F.3d 778, 783 (8th Cir. 2008). The allegation does not state
whether Campbell and Brown spoke directly with Ernst and Trubeck or whether they
merely conveyed hearsay information that was passed along by others. Any inference
of scienter is further weakened by the fact that, elsewhere in Horizon’s complaint, this
same confidential witness inaccurately alleged that Trubeck had knowledge of
accounting errors at a time when he was not even employed by Block.
Block’s continued disclosures of its control problems in all three of the filings
that contained false financial results during this period also weaken the inference that
Ernst and Trubeck acted with scienter. In Block’s SEC filing that included the first
restatement of financial results on July 29, 2005, it explained that “as of the end of the
period covered by this Annual Report on Form 10-K,” Block’s “Disclosure Controls
and procedures were not effective.” Block then described the specific deficiencies
discovered in its accounting for income tax and stated that the “deficiencies resulted
in errors in the Company’s accounting for income taxes” that “were corrected prior
to the issuance of the” restated financial results. Block continued, however, to explain
that:
In the aggregate, these deficiencies represent a material weakness in
internal control over financial reporting on the basis that there is a more
than remote likelihood that a material misstatement of the Company’s
annual or interim financial statements will not be prevented or detected
by its internal control over financial reporting. Because of this material
weakness in internal control over financial reporting, management
-12-
concluded that, as of April 30, 2005, the Company’s internal control over
financial reporting was not effective . . . .
Although Block described the efforts it took to improve internal controls, and
stated that it “believes it has established appropriate controls and procedures and
created the appropriate tax account analysis and support subsequent to April 30,
2005,” it also disclosed that:
In addition to the above actions, management will conduct a
comprehensive evaluation of the corporate tax function, including
resource requirements, during the current fiscal year to identify and
implement additional improvements to ensure compliance with the
controls and procedures that have been put in place to remediate
deficiencies previously identified.
Similar disclosures discussing the ongoing review, the hiring of a third-party firm to
assist in the review, and additional improvements to controls were made in the
subsequent two SEC filings. Horizon argues that certain statements, such as Block’s
statement that it corrected the errors caused by the deficiencies and its belief that it
had established appropriate controls after April 2005, suggest that Ernst and Trubeck
deceptively made it appear that all of Block’s accounting problems were corrected.
But Horizon takes those statements out of context. Looking at Block’s disclosures
quoted above and in its other filings, it is apparent that Block disclosed an ongoing
process to remediate complex accounting problems.
Horizon attempts to overcome this deficiency by pointing to statements of
securities analysts who misinterpreted Block’s disclosures. One analyst, for example,
opined that “this blemish has been rectified and that it will not be an issue for
investors going forward.” Statements made by third-party securities analysts,
however, are insufficient to raise a strong inference of scienter where, as here, there
are no allegations that the defendants adopted the statements, represented that they
were true, used the analysts as conduits by providing them false information, or
-13-
otherwise became “‘entangled’” with the analysts. In re Navarre Corp. Sec. Litig.,
299 F.3d 735, 743 (8th Cir. 2002) (quoting Elkind v. Liggett & Myers, Inc., 635 F.2d
156, 163 (2d Cir. 1980)); see also Raab v. Gen. Physics Corp., 4 F.3d 286, 288-89
(4th Cir. 1993). We conclude, therefore, that these allegations with respect to the last
three false statements do not raise a strong inference that Ernst and Trubeck made the
statements with the requisite scienter.
4.
Horizon alleges that an inference that Ernst and Trubeck acted with scienter
also arises from their signing of certifications. Horizon argues that because Ernst and
Trubeck signed certifications pursuant to sections 302 and 906 of the Sarbanes-Oxley
Act of 2002, 15 U.S.C. § 7241; 18 U.S.C. § 1350, verifying that Block’s internal
controls were sufficient when the tax accounting controls were, in fact, inadequate,
there is a strong inference of scienter. This court rejected a comparable argument in
Ceridian, explaining that “if an allegation that a mandatory Sarbanes-Oxley
certification was later proven to be inaccurate is sufficient to give rise to the requisite
strong inference, ‘scienter would be established in every case where there was an
accounting error or auditing mistake by a publicly traded company, thereby
eviscerating the pleading requirements for scienter set forth in the PSLRA.’”
Ceridian, 542 F.3d at 248 (quoting Cent. Laborers’ Pension Fund v. Integrated Elec.
Servs. Inc., 497 F.3d 546, 555 (5th Cir. 2007)).
Horizon also alleges that an inference of scienter is strengthened by the fact that
Trubeck had motive to commit fraud because of his desire to receive almost $258,000
in bonuses under Block’s Short Term Incentive Program, which awarded bonuses
based upon corporate performance. “Motive can be a relevant consideration, and
personal financial gain may weigh heavily in favor of a scienter interference,” Tellabs,
551 U.S. at 325, but merely pleading “‘that a defendant’s compensation depends on
corporate value or earnings does not, by itself, establish motive to fraudulently
misrepresent corporate value or earnings.’” Kushner, 317 F.3d at 830 (quoting Green
-14-
Tree, 270 F.3d at 661). A complaint must show “that the benefit to an individual
defendant is unusual,” for example, that the benefit is of an “overwhelming
magnitude” and received under “suspicious circumstances.” In re Cerner Corp. Sec.
Litig., 425 F.3d 1079, 1085 (8th Cir. 2005). We have held that bonuses as high as
$630,000 and $355,000 paid to a corporate officer under a performance plan were not
unusual. See id.; Kushner, 317 F.3d at 830. Thus, Trubeck’s bonuses over two years
totaling approximately $258,000, where there are no allegations of suspicious timing,
are insufficient. See Ceridian, 542 F.3d at 247.
Horizon makes a similar allegation that Ernst and Trubeck had motive to
commit fraud because they wanted to ensure a subsidiary’s success in issuing $400
million in promissory notes, and Block’s profitability was important to that success.
This assertion is also unavailing. “The desire to make a company seem more
profitable is a desire universally held among corporations and their executives,” and
thus insufficient to support an inference of scienter, even when tied to a debt offering.
Cerner, 425 F.3d at 1085 (internal quotation omitted). Therefore, we find that
Horizon’s motive allegations do not support a strong inference of scienter.
Finally, Horizon contends that even if its complaint does not raise a strong
inference of intent “to deceive, manipulate, or defraud,” Tellabs, 551 U.S. at 313, it
at least raises a strong inference that Ernst and Trubeck acted with severe recklessness.
Proof of severe recklessness may establish the requisite scienter. Ceridian, 542 F.3d
at 244. To demonstrate severe recklessness, a plaintiff must allege “highly
unreasonable omissions or misrepresentations amounting to an extreme departure
from the standards of ordinary care, and that present a danger of misleading buyers
or sellers which is either known to the defendant or is so obvious that the defendant
must have been aware of it.” Kushner, 317 F.3d at 828. A plaintiff must allege more
than “incompetence” or corporate mismanagement before a claim of negligence rises
to the level of securities fraud. Ceridian, 542 F.3d at 249. None of the allegations
discussed above, with respect to any of the nine false statements, amounts to highly
unreasonable conduct or an extreme departure from the standards of ordinary care.
-15-
At best, Horizon may have alleged facts showing that Ernst was negligent in not
discovering problems in the corporate tax department sooner than he did.
In sum, after evaluating all of Horizon’s allegations with respect to each of the
nine false statements, and considering the competing inference that the statements
were made mistakenly due to corporate tax accounting problems, we conclude that
Horizon has not raised a strong inference that Ernst or Trubeck made any of the
statements with the requisite scienter. Therefore, the district court did not err in
dismissing Horizon’s claims against Ernst and Trubeck.
B.
Horizon argues that even if its complaint has not raised a strong inference with
respect to Ernst and Trubeck, it still sufficiently pleads scienter as to Block. The
appropriate standard for considering the pleading of corporate scienter under the
PSLRA appears to be an open question in this circuit. Horizon contends that Block’s
scienter can be imputed from the allegations of the scienter of Block corporate officer
Mertz, who was not named as a defendant in this action. Horizon argues that Mertz
need not be named as a defendant in order to impute his state of mind to Block, see
Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190,
196 (2d Cir. 2008), and that Mertz’s intent can be imputed to Block because Mertz
had “a senior position within the Company.”
Assuming for the sake of argument that Mertz’s state of mind can be imputed
to the corporation, either on Horizon’s theory or on a narrower basis, see, e.g.,
Southland Secs. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 365-66 (5th Cir.
2004), we conclude that Horizon’s complaint does not raise a strong inference that
Mertz acted with scienter. Many of the allegations regarding Mertz’s state of mind
– such as his knowledge in April 2004 that internal controls in corporate tax were
ineffective and the slow pace of the investigation – are identical to Horizon’s
insufficient allegations against Ernst and Trubeck.
-16-
The primary additional allegation is that Mertz told a confidential witness in
2001 or 2002 that “there were always problems with not reconciling tax accruals and
tax liabilities on the state level. This was common knowledge in the accounting
department.” Accepting the allegation as true, Mertz knew about the accounting
problems at the time of the first false statement on March 16, 2004, and before Block
announced its discovery of control weaknesses in corporate tax. Even so, however,
Horizon does not allege that Mertz knew or was severely reckless in not knowing that
the problems were causing materially false financial results. Horizon does not allege
that the problems of which Mertz was aware caused the false statements that were
corrected in the second restatement, rather than those statements that were corrected
in the first restatement. Horizon has thus failed to allege facts that raise a strong
inference that Mertz acted with scienter with respect to the false statements alleged in
the complaint.
For these reasons, Horizon has failed to plead scienter adequately with respect
to Block or the individual defendants. Because the control-person claims under
section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(b), are
predicated on some underlying primary violation, Horizon also has failed to state a
claim under section 20(a). See Hutchinson, 536 F.3d at 961-62. Therefore, the district
court did not err in dismissing the consolidated complaint.
II.
Momentum Partners and Iron Workers Local 16 Pension Fund each brought an
action in the district court asserting derivative claims on behalf of Block against its
directors. These claims alleged breaches of fiduciary duties relating to Block’s
allegedly wrongful business practices, including the sales of Refund Anticipation
Loans, Peace of Mind guarantees, and Express IRAs, as well as other illegal and
unethical practices. Seven other actions were also brought against Block in state and
federal court. Three of the actions asserted federal securities fraud claims against
Block and the individual defendants arising out of Block’s two successive
-17-
restatements of financial results and Block’s alleged misrepresentations regarding its
Refund Anticipation Loan and Express IRA programs. Four of the actions – including
three state actions that were removed to federal court – asserted derivative claims on
behalf of Block against members of Block’s board of directors, alleging breaches of
their fiduciary duties, including claims arising out of violations of federal securities
laws.
Block moved for the consolidation of the six direct and derivative securities
actions, and Momentum Partners and Iron Workers moved to consolidate their two
actions. The district court consolidated all nine cases together under Federal Rule of
Civil Procedure 42(a), and stated its intention to “appoint one institutional co-lead
plaintiff and one individual co-lead plaintiff,” who would together “file an amended
complaint asserting all claims against Defendants.” The district court also ordered
prospective lead plaintiffs “to provide the Court with the pertinent information
necessary to determine which two Plaintiffs will adequately represent each of the two
established classes of claims.”
On November 3, 2006, after reviewing requests to be appointed lead plaintiff
by Iron Workers, Horizon, and two individual plaintiffs in the securities derivative
actions, the district court appointed Horizon as the sole lead plaintiff. (R. Doc. 48, at
1). The court stated that it was departing from its initial plan to appoint one
institutional and one individual lead plaintiff, because only Horizon had complied
with its order to provide the pertinent information to determine the most adequate
plaintiff. (Id.). Iron Workers and Momentum Partners moved for reconsideration,
arguing that Iron Workers had provided the necessary information, and that Horizon
was not an adequate representative because it had admitted that it would not assert
derivative fiduciary claims. Alternatively, Iron Workers and Momentum Partners
asked for certification to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
The district court denied the motion, determining that the claims asserted by Iron
Workers and Momentum Partners “are not really derivative claims,” and concluding
that it was therefore irrelevant whether Horizon failed to assert derivative claims.
-18-
Horizon subsequently filed a consolidated complaint that asserted no derivative
claims. The district court eventually dismissed the consolidated amended complaint
for failure to state a claim, and entered a final judgment dismissing the case. See In
re H&R Block Sec. Litig., No. 06-0236, 2008 WL 482403, at *6-7 (W.D. Mo. Feb. 19,
2008). Iron Workers and Momentum Partners appeal, arguing that the district court
abused its discretion by appointing Horizon as the sole plaintiff.
The district court’s consolidation of the nine securities and derivative actions
against Block under Federal Rule of Civil Procedure 42(a) was not an abuse of
discretion. The actions involved common parties, overlapping legal issues, and
related factual scenarios, and the consolidation itself did not cause unfair prejudice.
But the district court’s decision to appoint Horizon as the sole lead plaintiff for all
claims against Block, including the derivative claims, is problematic. The district
court determined that the claims asserted by Iron Workers and Momentum Partners
“are not really derivative claims,” but provided little explanation for its conclusion.
Having reviewed Momentum Partners’ amended complaint, filed on August 24, 2006,
and Iron Workers’ complaint filed on June 8, 2006, we conclude that the complaints
allege derivative claims that are not predicated on violations of federal securities laws.
It may be debatable whether a conflict of interest necessarily prevents a single
plaintiff, such as Horizon, from bringing both direct claims against a corporation and
derivative claims on the corporation’s behalf. See, e.g., ShoreGood Water Co., Inc.
v. U.S. Bottling Co., No. 08-2470, 2009 WL 2461689, at *4-6 (D. Md. Aug. 10,
2009); Ryan v. Aetna Life Ins. Co., 765 F. Supp. 133, 135-37 (S.D.N.Y. 1991); First
Am. Bank & Trust v. Frogel, 726 F. Supp. 1292, 1298 (S.D. Fla. 1989). In this case,
however, Iron Workers presented the court with evidence that Horizon would not
assert its derivative claims, and asked the court to reconsider its appointment based
on the conflict of interest. A consolidated case “retain[s] its independent status,” and
plaintiffs in a consolidated action, like Iron Workers, are still “entitled to a decision
on the merits of their claims.” DeGraffenreid v. Gen. Motors Assembly Div., St.
Louis, 558 F.2d 480, 486 (8th Cir. 1977). Once it was clear that Horizon would not
-19-
pursue the derivative claims, it was error for the district court to abide by its decision
to appoint Horizon as the sole lead plaintiff to prosecute a single consolidated
complaint.
Accordingly, we reverse the district court’s order of November 3, 2006, insofar
as it designates Horizon the lead plaintiff for the derivative claims brought by Iron
Workers and Momentum Partners and requires a single consolidated complaint. On
remand, the separate complaints filed by Iron Workers and Momentum Partners shall
be reinstated.
* * *
For the foregoing reasons, the judgment of the district court is affirmed in part,
reversed in part, and the case is remanded for further proceedings consistent with this
opinion.
______________________________
-20- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047580/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3077
___________
Federal Trade Commission, *
*
Plaintiff/Appellee, *
*
United States of America, *
*
Intervenor Plaintiff, *
*
v. * Appeal from the United States
* District Court for the
Richard C. Neiswonger, individually * Eastern District of Missouri.
and as an officer of each corporate *
defendant doing business as Marketing *
Systems, *
*
Defendant/Appellant, *
*
SKGroup Inc.; Shapiro, Kossmeyer & *
Flom, PC, doing business as SKPC; *
Carl F. Kossmeyer, individually and as *
an officer of SKGroup, Inc. – Shapiro, *
Kossmeyer & Flom, PC; Medical *
Recovery Service, Inc.; Nancy Freeman, *
individually and as an officer of *
Medical Recovery Service, Inc.; Marc *
Freeman, individually and as an officer *
of Medical Recovery Service, Inc., *
*
Defendants, *
*
William S. Reed, *
*
Defendant/Appellant, *
Asset Protection Group, Inc., *
*
Defendant, *
*
Robb Evans & Associates, LLC, *
*
Receiver. *
___________
Submitted: April 16, 2009
Filed: September 9, 2009
___________
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
___________
RILEY, Circuit Judge.
Richard Neiswonger (Neiswonger) appeals the district court’s1 entry of a civil
contempt order against Neiswonger for Neiswonger’s violations of a prior permanent
injunction, enjoining him from using deceptive and misleading sales practices.
Neiswonger claims the district court erred in denying Neiswonger’s motion for a
separate hearing on the issues of damages and disgorgement of profits and also raises
sufficiency of the evidence and other issues. For the reasons stated in this opinion, we
affirm.
I. BACKGROUND
In November 1996, the FTC brought an action against Neiswonger and others,
seeking to enjoin Neiswonger from using deceptive and misleading practices in the
sale of business opportunity programs. In 1997, the parties stipulated to the entry of
a permanent injunction, enjoining Neiswonger and his co-defendants from making
1
The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri, now retired.
-2-
misrepresentations and omissions of material fact in the advertising, marketing and
sale of business opportunity programs. Neiswonger paid $425,000 in redress to the
FTC.
In a separate criminal proceeding, Neiswonger pled guilty to wire fraud and
money laundering in connection with the sale of the business opportunity programs
and was sentenced to 18 months imprisonment. Later, a civil forfeiture action was
initiated against Neiswonger after it was determined Neiswonger failed to disclose,
during plea negotiations, approximately $1.3 million in proceeds from the deceptive
business opportunity scheme. Neiswonger settled for a $750,000 forfeiture to the
government.
Neiswonger and William Reed (Reed)2 became business partners and formed
a company called Asset Protection Group, Inc. (APG), which began operation after
Neiswonger was released from prison. In exchange for paying a $9,800 “performance
deposit,” APG offered consumers the opportunity to become certified “asset
protection consultants” (APG consultants). The function of an APG consultant was
to market and sell APG’s services to clients seeking to protect their assets. APG’s
asset protection services included (1) the creation of Nevada corporations, and (2) the
formation of “offshore corporation[s] from the Commonwealth of the Bahamas, with
a corporate brokerage account in the Cayman Islands.”
APG consultants were told their “performance deposits” would be “100 percent
REFUNDED . . . at a rate of a $100 bonus per Nevada Corporation and a $250 bonus
per Bahamas Corporation” the consultant placed. In addition, APG’s marketing
literature claimed APG consultants could expect to make “very substantial profits”
2
Reed was a Colorado attorney. The Colorado Supreme Court suspended
Reed’s license in 1997 after finding Reed “engaged in misrepresentations and
dishonesty.” Colorado v. Reed, 942 P.2d 1204, 1205 (Colo. 1997). Reed authored
a book called Bulletproof Asset Protection, which provided advice on protecting
assets from judgments, creditors, and government agencies.
-3-
and would have “6-figure income potential, from, less than full-time schedule.” The
literature explained APG consultants earned an average of $1,700 to $6,400 per client,
and offered to arrange appointments for APG consultants “with new, good prospective
clients.” APG placed advertisements in The Wall Street Journal and USA Today, and
paid for advertisements during the radio shows of Larry King, Rush Limbaugh, Bill
O’Reilly, and Charles Osgood.
In July 2006, the FTC filed a motion requesting the district court to order
Neiswonger, Reed, and APG (collectively, defendants) “to show cause why they
should not be held in contempt” for violations of the 1997 permanent injunction. The
FTC sought injunctive and compensatory relief and disgorgement of profits obtained
from the deceptive business practices. The FTC claimed “APG consultants have
suffered considerable losses or have not seen earnings even close to those touted,” and
“it is extraordinarily unlikely that consumers will earn a substantial or ‘six-figure’
income as APG consultants.” Thus, the FTC claimed the defendants were “making
false and misleading income claims” in violation of the permanent injunction. The
FTC also claimed the defendants were in violation of the permanent injunction for
failure to disclose material facts, including (1) the fact APG was using paid references
to promote its program without disclosing this fact to consumers, and
(2) Neiswonger’s prior civil forfeiture for deceptive practices and his criminal
convictions. Finally, the FTC alleged Neiswonger violated the permanent injunction
“by failing to report his affiliation with APG to the FTC, and by failing to provide the
FTC with proof of a current $100,000 performance bond before promoting the APG
program over the past two years.”
The FTC also filed a motion for a temporary restraining order and other
ancillary equitable relief, which the district court granted, enjoining the defendants
from further violations of the permanent injunction, freezing the defendants’
individual and corporate assets, and appointing a temporary receiver to assume control
of APG. The district court also ordered the defendants to appear before the court to
-4-
show cause why it should not enter a preliminary injunction pending the outcome of
the FTC’s motion seeking to hold the defendants in civil contempt.
The district court convened a two-day hearing on October 25, 2006. The FTC
presented testimony from five witnesses: an FTC investigator, three consumers who
had become APG consultants and incurred losses, and a representative of the receiver.
The FTC also presented deposition testimony and declarations of various other
consumers. Only Neiswonger testified for the defendants. The receiver prepared a
report, which was admitted into evidence. According to the report, of the 1,930
individuals who became APG consultants, only 121 (6.3%) sold enough corporations
to earn back their initial $9,800 payment. Approximately 94% of the 1,930
consultants either did not sell a single corporation or did not sell enough corporations
to earn back their $9,800 payment. APG’s records indicated the defendants’ gross
sales from the APG consultant program were approximately $19.8 million.
The FTC moved to admit a document into evidence that purported to calculate
the income Neiswonger had received from his involvement in APG. Defendants
objected to the admission of the document, contending it was a self-serving document
that was generated at the request of the FTC, was missing information, and contained
unauthenticated information. Defendants also claimed the document was inadmissible
as a summary exhibit because the document and the underlying data were not made
available to defendants. The FTC claimed the underlying information came from the
data maintained by and accessible to the defendants, and the FTC had attempted to
email the document the previous week, but there had been a computer problem on the
defendants’ end of the transmission. The district court suggested, in light of
defendants’ objections, that the hearing may need to be postponed to give the
defendants adequate time to review the contested document and the underlying data.
Defendants withdrew their objection, stating they did not wish to postpone the
hearing, and the district court received the document subject to the defendants’ other
objections. The representative of the receiver estimated Neiswonger’s income from
sales of the APG program was $3,089,000, and Reed’s income was approximately
-5-
$4,900,000. The defendants declined to cross-examine the representative of the
receiver.
On April 23, 2007, the district court entered an order, finding Neiswonger in
contempt for several violations of the 1997 permanent injunction. The district court
also found Reed and APG in contempt for acting in concert and participating with
Neiswonger in violations of the permanent injunction. The district court modified the
permanent injunction, banning Neiswonger “from marketing and selling business
opportunity programs in the future.” The court determined it was appropriate to wait
to levy a compensatory sanction until the receiver submitted a final computation of
Neiswonger’s and Reed’s proceeds.
In March 2008, the receiver submitted the final computation of Neiswonger’s
proceeds. The receiver determined Neiswonger had obtained $3,213,719.13 in
connection with the APG program. On April 11, 2008, Neiswonger moved to exclude
the report and requested an evidentiary hearing. The district court denied
Neiswonger’s motion, finding the receiver “filed an exhaustive report” at the direction
of the district court, the defendants “had a full and complete opportunity to challenge
the evidence and testimony presented at the prior contempt hearing but chose not to
do so,” and “[i]t would be nothing less than an unnecessary delay to hold a new
hearing on the disgorgement amount” because there was “no genuine dispute of
material fact regarding the final accounting of the disgorgement amount.” The district
court entered an amended civil contempt order on July 30, 2008, using the receiver’s
final computation as the compensatory sanction. Neiswonger appeals.
II. DISCUSSION
A. Standard of Review
“[W]e review a district court’s imposition of a civil contempt order and
assessment of monetary sanctions for abuse of discretion.” Chaganti & Assocs., P.C.
v. Nowotny, 470 F.3d 1215, 1223 (8th Cir. 2006) (citation omitted). The district
-6-
court’s factual findings underlying that decision are reviewed for clear error.
Warnock v. Archer, 443 F.3d 954, 955 (8th Cir. 2006) (citation omitted).
B. Due Process
Neiswonger first asserts he was not afforded due process of law during the civil
contempt proceedings because the district court issued the civil contempt order
without giving Neiswonger an opportunity to be heard on the issue of damages.
“[C]ivil contempt sanctions, or those penalties designed to compel future compliance
with a court order, are considered to be coercive and avoidable through obedience, and
thus may be imposed in an ordinary civil proceeding upon notice and an opportunity
to be heard.” Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821,
827 (1994) (emphasis added).
Having reviewed the record, including the transcript of the October 2006
hearing, we conclude Neiswonger was afforded due process during the civil contempt
proceedings. In July 2006, the FTC put Neiswonger on notice of the FTC’s intent to
seek compensatory sanctions and disgorgement of Neiswonger’s APG program
profits. Also in July 2006, the court-appointed temporary receiver submitted a
preliminary report, estimating Neiswonger’s proceeds from the APG program were
$2,799,472. The district court initially scheduled the hearing on the motion to show
cause in July 2006; however, the parties filed a joint motion to continue the hearing
until September 2006. The hearing was again rescheduled to October 25 and 26,
2006, giving Neiswonger ample opportunity to prepare for the hearing.
At the October 2006 hearing, when the FTC moved to admit into evidence the
document calculating Neiswonger’s proceeds from the sales of the APG program,
Neiswonger initially objected. Neiswonger complained the compilation was
generated at the FTC’s request and based his objection on the lack of opportunity to
view the underlying data in advance of the hearing, and Neiswonger’s assertion that
the document contained missing and unauthenticated information. After hearing the
-7-
objections to the document and the FTC’s responses, the following exchange
occurred:
THE COURT: Well, it appears to me that after we’re through
here I may need to postpone this hearing and let everybody get up to
speed on it and then come back again.
MR. FRANKEL:3 Well, I hope not.
....
THE COURT: I hope not too. You say you’re not prepared, you
haven’t received the document, Mr. McAllister4 hasn’t received the
underlying documents.
....
MR. McALLISTER: Judge, clearly we do not want the
continuance. If that is the remedy, I withdraw my objection. . . .
....
But for purposes of this proceeding, I made the objection that the
Court wants to accept it subject to the objections to avoid any
continuance, that is fine with me.
MR. FRANKEL: And I agree with him, Mr. McAllister.
The district court received the document subject to the objections and permitted
the representative of the receiver to testify that Neiswonger’s estimated income from
the APG program was $3,089,000. The representative of the receiver testified
Neiswonger’s income was subject to change because the receiver had requested
additional documents that were not yet in the receiver’s possession. The
representative expected that any change in Neiswonger’s income would be an upward
adjustment, rather than a downward adjustment. Neiswonger and the other defendants
declined to cross-examine the representative. At the conclusion of the two-day
hearing, the district court gave the parties the opportunity to submit briefs and
3
Mr. Frankel represented Reed at the October 2006 hearing.
4
Mr. McAllister represented Neiswonger at the October 2006 hearing.
-8-
proposed findings of fact and conclusions of law. Neiswonger did not make any
further submissions; thus, the representative’s estimation of Neiswonger’s income was
otherwise unchallenged by Neiswonger.
In April 2007, the district court entered an order, finding Neiswonger in
contempt for the violations of the 1997 permanent injunction. When the district court
announced its intention, upon a final computation by the receiver, to disgorge
Neiswonger of his proceeds from the APG program sales, Neiswonger made no effort
then to challenge the evidence concerning Neiswonger’s proceeds. Neiswonger
challenged the receiver’s computation only after the receiver submitted its final
calculation of Neiswonger’s proceeds in March 2008.
We conclude Neiswonger was given notice and ample opportunity to be heard
on the issues of damages and disgorgement. Neiswonger chose not to take full
advantage of the opportunities. Most significantly, Neiswonger turned down the
district court’s offer to continue the show cause hearing to permit Neiswonger to
review the receiver’s computation of proceeds, and Neiswonger chose not to submit
a brief and proposed findings of fact and conclusions of law following the hearing.
We find no abuse of discretion in the district court’s denial of Neiswonger’s motion
for a hearing on the issue of damages and disgorgement.
In his reply brief, Neiswonger also argues he was denied due process because
the receiver’s report did not comply with Fed. R. Civ. P. 26(a)(2)(B)(iv) and Fed. R.
Evid. 706. These arguments were not made in Neiswonger’s opening brief. The FTC
filed a motion to strike this portion of Neiswonger’s reply brief. “Claims not raised
in an opening brief are deemed waived,” Jenkins v. Winter, 540 F.3d 742, 751 (8th
Cir. 2008) (citations omitted), and we do “not consider issues raised for the first time
on appeal in a reply brief ‘unless the appellant gives some reason for failing to raise
and brief the issue in his opening brief,’” id. (quoting Neb. Plastics, Inc. v. Holland
Colors Ams., Inc., 408 F.3d 410, 421-22 n.5 (8th Cir. 2005)). Because Neiswonger
provided no explanation for his failure to raise these arguments in his opening brief,
-9-
the arguments are waived and we grant the FTC’s motion to strike. Even if we were
to consider these arguments, we would nevertheless conclude the arguments lack merit
because we agree with the district court that the receiver was acting in its capacity as
a fiduciary agent of the court, rather than as an expert.
C. Evidentiary Findings
Neiswonger next complains the district court’s finding regarding Neiswonger’s
proceeds from the APG program sales “is not supported by the evidence submitted by
the FTC.” In addition to the due process arguments Neiswonger made above,
Neiswonger suggests the contempt sanction was based on the receiver’s “estimate
testimony of income” and the receiver incorrectly attributed certain amounts to
Neiswonger as proceeds. As we stated above, Neiswonger had ample opportunity to
challenge the receiver’s income computations before, during, and after the October
2006 hearing. Neiswonger withdrew his objection to the district court receiving into
evidence the receiver’s document calculating Neiswonger’s proceeds, chose not to
cross-examine the representative of the receiver at the hearing, made no attempt to
access the records underlying the receiver’s proceed calculations before or after the
hearing, and declined to submit a brief or proposed findings of fact and conclusions
of law to the district court following the hearing. Based upon the record in this case,
we cannot say the district court abused its discretion or clearly erred in adopting the
receiver’s calculation of Neiswonger’s proceeds.
D. Neiswonger’s Remaining Arguments
Neiswonger also asserts the district court’s contempt order violates state and
federal law, and is overly broad because the provision in the district court’s contempt
order which requires Neiswonger to turn over certain assets to the receiver in partial
satisfaction of the judgment violates state and federal law.5 First, Neiswonger claims
5
Neiswonger suggests the district court failed to consider these issues before
entering the amended contempt order. Contrary to Neiswonger’s suggestion, these
arguments were made and addressed by the parties in district court filings before the
-10-
the district court cannot compel Neiswonger to turn over real property located in Las
Vegas, Nevada, because Neiswonger’s wife, who is not a party to the action, has a
marital interest in the property. To support his argument, Neiswonger relies upon a
case which interpreted New Jersey law. See S.E.C. v. Antar, 120 F. Supp. 2d 431
(D.N.J. 2000). In Antar, the court considered whether, under New Jersey law, a
husband’s creditor could obtain partition or foreclosure of a marital home to satisfy
the debts of the husband when the husband held the home in tenancy by the entirety
with his wife. Id. at 449-50. The court held, under the circumstances of that case,
foreclosure and partition of the family home were inappropriate. Id. at 450. However,
Antar has no bearing on this case. The subject Neiswonger real property is located in
Nevada. Nevada is a community property state, and under the law of Nevada,
“community property is subject to a spouse’s debt irrespective of whether both
spouses were a party to the action.” Jones v. Swanson, 341 F.3d 723, 738 n.6 (8th Cir.
2003) (citing Randono v. Turk, 466 P.2d 218, 224 (Nev. 1970)); see also Cirac v.
Lander County, 602 P.2d 1012, 1017 (Nev. 1979) (noting “community property of
spouses may be subject to liability of judgments whether or not the wife was a party
to the suit” (citation omitted)).
Neiswonger next argues the district court abused its discretion by ordering him
to turn over the real property in Nevada because the property is owned by a trust that
bears Neiswonger’s wife’s initials, Neiswonger no longer resides in the home, and
Neiswonger’s wife resides in the home with her son. Our review of the trust
documents reveals Neiswonger is a trustor/grantor, trustee, and beneficiary of the
named trust, and Neiswonger cites no authority to support his arguments that he
cannot be compelled to turn over property owned by the trust. See F.T.C. v.
Affordable Media, 179 F.3d 1228, 1241 (9th Cir. 1999) (stating a defendant who
asserts he is unable to comply with a court order requiring him to turn over assets held
in trust “must show ‘categorically and in detail’ why he is unable to comply,” and
entry of the amended civil contempt order.
-11-
observing, ‘[i]n the asset protection trust context, . . . the burden on the party asserting
an impossibility defense will be particularly high because of the likelihood that any
attempted compliance with the court’s orders will be merely a charade rather than a
good faith effort to comply” (citation omitted)).
Finally, Neiswonger contends the portion of the amended contempt order
requiring Neiswonger to turn over the assets in his A.G. Edwards individual
retirement account (IRA) conflicts with state and federal law. Neiswonger claims he
should not be required to comply with this provision of the contempt order because
(1) the funds in his IRA are exempt from collection by creditors under Nevada law,
and (2) he would be required to pay a penalty to the Internal Revenue Service in order
to liquidate and transfer the funds in his IRA.
Neiswonger relies upon Dudley v. Anderson (In re Dudley), 249 F.3d 1170,
1172 (9th Cir. 2001), wherein the Ninth Circuit considered whether, under California
law, IRAs were exempt from creditors’ claims in a bankruptcy estate. The Ninth
Circuit recognized an IRA designed and used solely or principally for retirement
purposes would be exempt under California law. Id. at 1176-77. Neiswonger,
however, cites no authority to support his contention that the district court’s authority
to order him to turn over the assets in his IRA was limited by any Nevada state law
exemptions. On the other hand, the FTC cites other authority demonstrating a district
court is not constrained by state law exemptions in fashioning disgorgement orders.
See Steffen v. Gray, Harris & Robinson, P.A., 283 F. Supp. 2d 1272, 1282 (M.D. Fla.
2003) (“A district court has broad discretion in fashioning a disgorgement order. For
example, a district court can ignore state law exemptions as well as other state law
limitations on the ability to collect a judgment in fashioning a disgorgement order.”
(internal citations omitted)); see also S.E.C. v. Musella, 818 F. Supp. 600, 602
(S.D.N.Y. 1993) (“Contrary to [defendant’s] assertion, the extent to which [his] assets
and income would be exempt from attachment under New York law does not alter his
duty to pay the amount he owes under the [federal civil contempt] order.” (citation
-12-
omitted)). In this case, Neiswonger is not an innocent debtor covered by state debtor
protection legislation. Neiswonger violated a permanent injunction and used a
deceptive and misleading marketing scheme to sell business opportunity programs.
Neiswonger has failed to demonstrate the district court abused or exceeded its
discretion or clearly erred in imposing the amended civil contempt order.
III. CONCLUSION
For the reasons stated in this opinion, we affirm the district court. We also
grant the FTC’s motion to strike portions of Neiswonger’s reply brief.
______________________________
-13- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3047581/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-21-2009
Sulistiowati v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1148
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Sulistiowati v. Atty Gen USA" (2009). 2009 Decisions. Paper 2009.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2009
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________
No. 08-1148
_________
SULISTIOWATI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of Order
of the Board of Immigration Appeals
(Agency No. A95-461-992)
Immigration Judge: Hon. Rosalind K. Malloy
Submitted under Third Circuit LAR 34.1(a)
October 30, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed: January 21, 2009)
________
OPINION
________
PER CURIAM
The petitioner, an Indonesian citizen, seeks review of a final order of the Board of
Immigration Appeals (“BIA”). For the following reasons, we will grant the petition for
review.
I.
Sulistiowati entered the United States in 2001. She was served with a notice to
appear in 2003, charging her with being subject to removal under INA § 237(a)(1)(B).
While Sulistiowati conceded that she was removable as charged, she filed an application
for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”).1 She claimed that she had been persecuted in Indonesia due to her status as an
ethnic-Chinese Buddhist.
Sulistiowati claims to have been frightened (but not otherwise affected) by rioting
on numerous occasions, but her application for relief centers on two particular events.
During the May 1998 riots, Sulistiowati’s home (which was located in Bangkalan,
Madura Island) was broken into and looted. Sulistiowati and her neighbors were able to
escape from their homes, and they hid in a canal for four hours until the army dispersed
the crowd. During the riot, a Buddhist temple was burned, and she heard people
shouting, in Arabic: “Kill the infidels.” Although Sulistiowati did not believe that any of
the estimated 500 rioters were arrested, she stated that the army protected “the area” for
approximately one month until the tension eased.
1
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the United
States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231.
2
After the 1998 riots, Sulistiowati remained in Bangkalan, where she owned a
shrimp farm. As a single, ethnic-Chinese woman, she believed that she needed to hide
her ownership of the farm, so she hired ethnic-Indonesians to sell the produce. She
contended, however, that her employees defrauded her by keeping the profits, and that
they threatened to expose her as the owner unless she gave them more money.
Sulistiowati stopped operating the farm (though she did not sell it) after the fall 2000
harvest (which apparently coincided with more rioting) when a mass of people who lived
in the area stole the produce from the farm. She then moved to Jakarta.
In Jakarta, Sulistiowati rented and operated a store. In December 2000, she closed
the store because churches were being bombed and she became frightened. She reopened
in March 2001, but closed again after three months because she did not feel safe due to
demonstrations and church burnings. She received her passport in June 2001, and a visa
in July 2001; she left Indonesia in August 2001.
Sulistiowati lives in Philadelphia with her daughter, who received asylum in 1999.2
In Philadelphia, Sulistiowati is an active member of the Buddhist temple. Three of her
children still live in Indonesia—one in Surabaya and two in Jakarta—and her sisters
operate a shop that was previously owned by their parents. She did not testify that any of
her family in Indonesia is being or has been persecuted.
2
Sulistiowati testified that she did not know the basis on which her daughter received
asylum.
3
The Immigration Judge (“IJ”) denied all relief except for voluntary departure. The
IJ found that Sulistiowati’s experiences did not rise to the level of persecution, as she was
not physically injured, the army put down the 1998 riots and protected her neighborhood
thereafter, and the incidents she described were part of the general civil strife in
Indonesia. The IJ also determined that Sulistiowati did not demonstrate that the fraud and
extortion perpetrated by her employees or the looting of her shrimp farm occurred
because she was ethnic-Chinese. Finally, the IJ found that Sulistiowati did not establish a
well-founded fear of future persecution.
On December 20, 2007, the BIA affirmed the IJ’s decision without opinion.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). In situations like this, where the BIA adopts and affirms the IJ’s decision, we
review the decision of the IJ. Partyka v. Att’y Gen., 417 F.3d 408, 411 (3d Cir. 2005).
Whether an applicant has demonstrated past persecution or otherwise established a
likelihood of future persecution is a question of fact, which we review for substantial
evidence. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). This means that we
must uphold the IJ’s findings to the extent they are “supported by reasonable, substantial
and probative evidence on the record as a whole.” Id.
We will grant the petition for review because, although the conclusion that
Sulistiowati did not establish past persecution is supported by substantial evidence, the IJ
4
did not address whether ethnic-Chinese are subject to a pattern or practice of persecution
in Indonesia.3
We find no error in the conclusion that the incidents complained of, although
serious and undoubtedly frightening, do not amount to persecution. The crux of
Sulistiowati’s claim was that her home was looted and she was forced to hide in a canal
for four hours during a riot to protect herself. However, this incident, in addition to
witnessing and hearing about additional riots, does not warrant a finding that she suffered
sufficiently severe harm to constitute persecution. See Singh v. INS, 134 F.3d 962, 967
(9th Cir. 1998) (general violence does not rise to the level of persecution); see also Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (citing cases).
Additionally, Sulistiowati’s abandonment of her shrimp farm after being defrauded
and/or extorted by her employees and after people stole her inventory does not constitute
the “deliberate imposition of severe economic disadvantage” that qualifies as persecution.
See Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir. 2005). The IJ concentrated on the fact
that Sulistiowati did not demonstrate that the problems she encountered in maintaining
her business were on account of her ethnicity or religion, which is supported by the
record. It is also important to recognize that when Sulistiowati left her shrimp farm, she
maintained employment and was able to continue supporting herself by moving to Jakarta
3
Because Sulistiowati did not appeal from the denial of CAT relief, she has waived
that issue. See generally Kost v. Kozakiewicz, 1 F.3d 176, 182, 83 (3d Cir. 1993).
5
and opening a store. See id. at 169 (severe economic restriction amounted to persecution
where the petitioner was blacklisted from government and most other employment, lost
health benefits, school tuition, and food rations). Sulistiowati thus cannot demonstrate
that she was a victim of economic persecution, as we have defined it. See id.
Sulistiowati also argues that the IJ erred by not examining the issue of whether a
practice or practice of persecution exists against ethnic-Chinese in Indonesia. We find
that this issue was properly raised before the BIA, and that we thus have jurisdiction to
review it. 8 U.S.C. § 1252(d); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)
(“So long an immigrant petitioner makes some effort, however insufficient, to place the
Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed
to have exhausted her administrative remedies.”).
To establish a well-founded fear of persecution, the applicant must first
demonstrate a subjective fear of persecution through credible testimony that her fear is
genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The applicant must also
show, objectively, that a “reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question.” Id. To satisfy this prong, the
applicant must show that she would be singled out for persecution, or that “there is a
pattern or practice . . . of persecution against a group of persons similarly situated to the
applicant” on one of the protected grounds. 8 C.F.R. § 208.13(b)(2)(iii)(A). To
constitute a pattern or practice, the persecution of the group must be “systemic, pervasive,
6
or organized,” and must be committed by “the government, or forces the government is
either ‘unable or unwilling’ to control.” Lie, 396 F.3d at 537 (internal citation omitted).
Here, the IJ found that Sulistiowati had not established a well-founded fear of
persecution, stating only that she “could never fully articulate exactly what she feared if
she were to return to Indonesia.” (A.R. 59.) The IJ did not specifically address whether
a pattern or practice of persecution of ethnic-Chinese existed in Indonesia. Thus, we will
remand for consideration of this claim. See Sukwanputra v. Gonzales, 434 F.3d 627, 637
(3d Cir. 2006).
For the foregoing reasons, the petition for review will be granted, the order of the
BIA vacated, and the case remanded for further proceedings consistent with the dictates
of this opinion. Judge Roth voted to deny the petition for review.
7 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2768138/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ROBERT L. McCULLOUGH
United States Army, Appellant
ARMY 20090206
Headquarters, Joint Readiness Training Center and Fort Polk
Charles Hayes, Military Judge
Lieutenant Colonel Paula Schasberger, Acting Staff Judge Advocate (pretrial
& recommendation)
Colonel Keith C. Well, Staff Judge Advocate (addendum)
For Appellant: Frank J. Spinner, Esquire (argued); Captain Brent A. Goodwin, JA;
Frank J. Spinner, Esquire (on brief).
For Appellee: Major Adam S. Kazin, JA (argued); Colonel Michael E. Mulligan, JA;
Major Amber J. Williams, JA; Major Adam S. Kazin, JA; Captain Ryan D. Pyles, JA
(on brief).
13 August 2012
---------------------------------------------------
SUMMARY DISPOSITION ON REMAND
---------------------------------------------------
Per Curiam:
A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of carnal
knowledge with a person under the age of sixteen and one specification of adultery,
in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§
920, 934 (2006) [hereinafter UCMJ]. The panel sentenced appellant to a bad-
conduct discharge, confinement for three years and six months, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The convening authority reduced
the sentence of confinement to three years and four months and disapproved the
adjudged forfeiture of all pay and allowances. The convening authority approved
the remainder of the adjudged sentence and granted appellant’s request to waive
automatic forfeitures for six months.
McCULLOUGH—ARMY 20090206
On 7 June 2011, we issued an opinion in this case, affirming the findings of
guilty and the sentence. United States v. McCullough, ARMY 20090206, 2011 WL
2279623 (Army Ct. Crim. App. 7 June 2011) (mem. op.). On 29 September 2011,
our superior court vacated our decision and returned the record of trial to The Judge
Advocate General of the Army for remand to this court for consideration in light of
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). On 19 December 2011, we
issued an opinion in this case, affirming the findings of guilty and the sentence.
United States v. McCullough, ARMY 20090206, 2011 WL 6400551 (Army Ct. Crim.
App. 19 Dec. 2011) (summ. disp.). On 10 July 2012, our superior court reversed our
decision as to Charge II and its Specification and as to the sentence, and returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further consideration in light of United States v. Humphries, 71 M.J. 209
(C.A.A.F. 2012). Consequently, appellant’s case is again before this court for
review under Article 66, UCMJ.
Much like the specification at issue in Humphries, it was plain and obvious
error for the government to fail to allege the terminal elements of Article 134,
UCMJ, in the adultery specification at issue in this case. See Humphries, 71 M.J. at
214. Nonetheless, while Charge II and its Specification was defective and this
defect affected appellant’s constitutional right to notice under the Fifth and Sixth
Amendments, “it does not constitute structural error subject to automatic dismissal.”
Id. at 212. Instead, we must resolve “whether the defective specification resulted in
material prejudice to [appellant’s] substantial right to notice.” Id. at 215. To
resolve this issue, we must closely review the trial record. Id.
Close review of the trial record in this case reveals that appellant was on
notice of the missing terminal elements and that the terminal elements were
“essentially uncontroverted.” Id. at 215-16. The government called Special Agent
(SA) MB as its second witness. At one point during SA MB’s direct-examination,
the government asked him what effect appellant’s offenses had on the community.
Appellant’s defense counsel immediately objected, and the military judge sustained
this objection. The government then asked for an Article 39(a), UCMJ, session
outside the presence of the panel members. At this Article 39(a), UCMJ, session,
the government stated their intent to introduce evidence from SA MB in order to
prove the terminal elements associated with the adultery specification at issue.
Ultimately, the military judge ruled that the government would have to prove
the terminal elements “in some other way from some other witness other than
Special Agent [MB].” After the military judge confirmed that the government
understood his ruling, the following exchange took place:
CDC: Can I have one brief comment in the meantime,
Your Honor.
2
McCULLOUGH—ARMY 20090206
MJ: You certainly may.
CDC: And this is without even checking with co-counsel
or my client. But we are here to stipulate that if indeed
Sergeant McCullough had sexual intercourse with a 13
year-old girl, that is—and I am not amending the exact
words, but that is not good military actions.
MJ: That it would be prejudicial to good order and
discipline or service discrediting.
CDC: It definitely would be. In my cross examination of
the accuser, I said it’s disgusting it’s despicable. So if
indeed the panel found out that he did this we are going to
concede to that element.
Under the facts of this case, we are convinced that the record of trial
demonstrated appellant had sufficient notice of the terminal elements and the theory
of criminality pursued by the government. See Humphries, 71 M.J. at 216 (finding
that “[n]either the specification nor the record provides notice of which terminal
element or theory of criminality the Government pursued in this case”). Therefore,
appellant did not suffer prejudice from the omission of the terminal elements in
Charge II and its Specification.
CONCLUSION
On consideration of the entire record and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
3 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128745/ | 538 U.S. 966
EVANSv.MASSACHUSETTS.
No. 02-9119.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS.
2
Sup. Jud. Ct. Mass. Certiorari denied. Reported below: 438 Mass. 142, 778 N. E. 2d 885. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128747/ | 538 U.S. 966
CONDITv.KEMNA, SUPERINTENDENT, CROSSROADS CORRECTIONAL CENTER.
No. 02-9121.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C. A. 8th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128748/ | 538 U.S. 966
HOUSTONv.UNITED STATES.
No. 02-9305.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. Reported below: 313 F. 3d 372. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3062416/ | An unpublis ed order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123
IN THE SUPREME COURT OF THE STATE OF NEVADA
NEW LIFECARE HOSPITALS UP I No. 68920
NORTHERN NEVADA, LLC, DIBI’A I
TAHOE PACIFIC HOSPITALS, A I ,
NEVADA LIMITED LIABILITY 1’ E L E D
COMPANY,
Appellant, UN 1 3 2315
CE .LlN EMAN
VS.
DALE WRIGHT, INDIVIDUALLY, 0W5”
Res Unden‘tI "m "’ PUTV L '
ORDER DISMISSING APPEAL
Cause appearing, appellant’s nitration for a voluntary dismissal
of this appeal is granted. This appeal is dismissed. NRAP 423(k)).
It is so ORDERED.
CLERK OF THE SUPREME COURT
TRACIE K. LINDEMfN
BY: W
cc: HanPatrick Flanagan, District J udg‘e
Lansford W. Levitt, Settlement Judge
Randazza Legal Group, PLLC
H037 Chrissinger Kimmel, PC
Washoe'District Court Clerk
SUPREME. COURT
OF
NEVADA
CLERK'S DRDEH
. III Hm_f - $1 01% | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128781/ | 538 U.S. 968
GIBSONv.UNITED STATES.
No. 02-9297.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
2
Ct. App. D. C. Certiorari denied. Reported below: 814 A. 2d 964. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1879784/ | 790 F. Supp. 649 (1992)
RESOLUTION TRUST CORPORATION, as Receiver for Oak Tree Savings Bank, S.S.B. and as Conservator of Oak Tree Federal Savings Bank
v.
Nadalyn Miller COTTEN, et al.
No. 91-4656.
United States District Court, E.D. Louisiana.
April 7, 1992.
As Amended May 11, 1992.
Raymond P. Ward, Jerome R. Lepsich, Anthony Dunbar, Sessions and Fishman, and Paul J. Mirabile, Middleberg, Riddle and Gianna, New Orleans, La., for RTC.
Eric A. Holden, Patricia Garcia, New Orleans, La., for Nadalyn Miller Cotten, et al.
Thomas F. Daley, LaPlace, La., for Roger C. Cotten, Testamentary Trust.
ORDER AND REASONS
DUPLANTIER, District Judge.
The Resolution Trust Corporation as Receiver for Oak Tree Savings Bank, S.S.B. filed a motion to dismiss the counterclaim against it. For the following reasons, the motion is DENIED.
The issue is whether after a federally insured financial institution has been placed in receivership a district court must dismiss a suit filed against the institution prior to the appointment of the receiver, requiring the claimant to pursue administrative remedies and if unsuccessful then to return to court with a new suit. I have not found, nor has my attention been called, to any United States Supreme Court or Fifth Circuit decision on point. One district court decision supports R.T.C.'s position that the counterclaim should be dismissed, but I disagree with its reasoning. Homeyer v. Yorkville Federal Savings and Loan Association, 1991 WL 274226, 1991 U.S.Dist. Lexis 17939 (S.D.N.Y. December 12, 1991).
The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIERRA), Pub.L. No. 101-73 (1989), established, among other things, administrative procedures for adjudicating claims against the receiver of a failed bank and defined the jurisdiction of federal district courts to review claims which were disallowed. The statute contains the following provisions pertinent here:
the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action which was filed before the appointment of a receiver.
12 U.S.C. § 1821(d)(5)(F)(ii).
* * * * * *
Before the end of the 60-day period beginning on the earlier of
*650 (i) the end of the period described in paragraph (5)(A)(i)[1] with respect to any claim against a depository institution for which the Corporation is receiver; or
(ii) the date of any notice of disallowance of such claim pursuant to paragraph (5)(A)(i),
the claimant may request administrative review of the claim ... or file suit on such claim (or continue an action commenced before the appointment of the receiver) in the district ... court of the United States for the district within which the depositary institution's principal place of business is located ... (and such court shall have jurisdiction to hear such claim).
12 U.S.C. § 1821(d)(6)(A).
Mover contends that the counterclaim filed against it must be dismissed even though it was filed prior to the date the receiver was appointed, arguing that the receiver's appointment deprived this court of jurisdiction over the claim during the pendency of the administrative claim. Such a construction requires that those portions of the statute referring to the continuation of an action commenced before the appointment of the receiver must be read out of the statute and rendered meaningless. If the filing of an administrative claim deprives the district court of jurisdiction over a claim filed before a receiver is appointed, then such claims are treated identically to those filed after a receiver is appointed. If pre-receiver claims must be dismissed, there would be no need for the provisions relating to continuation of actions: there would be no action to continue. Once the action was dismissed a new suit would have to be filed in order to obtain judicial review of the administrative decision.
Moreover, no purpose is served by dismissing the counterclaim. Counterclaimant's administrative claim was filed January 17, 1992. Nearly one-half of the 180 day stay period has elapsed. Nothing mandates that the R.T.C. use the entire 180 day period to determine a claim. If a determination of the claim is made promptly, and the determination is adverse to counterclaimant, a dismissal of the counterclaim now would result in a new suit shortly thereafter. The counterclaim would then be back in its present posture but as a separate action.
I construe the applicable provisions as requiring a stay of the counterclaim pending the administrative ruling. Staying the counterclaim in no way prejudices the RTC and eliminates the additional expenditure of time and money by all parties that would result from a dismissal and refiling of the action. Had Congress intended that suits filed prior to the receivership must be dismissed pending determination of the administrative claim by the RTC, it could easily have stated that. In the absence of such an explicit provision and considering the interests of judicial economy, I stay all further proceedings on the counterclaim until such time as the RTC issues a determination on the administrative claim or the expiration of the 180 day stay period, whichever occurs first. If it becomes necessary in the interest of justice to stay the main demand so as not to produce the inequitable result of a final judgment in the main demand prior to an adjudication of the counterclaim, I will stay the main demand for a like period on motion of either party.
NOTES
[1] 12 U.S.C. § 1821(5)(A)(i) provides: Before the end of the 180-day period beginning on the date any claim against a depository institution is filed with the Corporation as receiver, the Corporation shall determine whether to allow or disallow the claim and shall notify the claimant of any determination with respect to the claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1880014/ | 100 B.R. 106 (1988)
In the Matter of ASSOCIATED AIR SERVICES, INC., Bankrupt/Appellee.
Appeal of WJC, INC.
No. 88-6142-CIV, Bankruptcy No. 83-02275-BKC-AJC.
United States District Court, S.D. Florida.
December 29, 1988.
Fleming, O'Bryan, Fleming, Ft. Lauderdale, Fla., for appellant.
Reggie David Sanger, Ft. Lauderdale, Fla., for bankrupt/appellee.
ORDER OF DISMISSAL
PAINE, District Judge.
This cause comes before the Court upon the motion of Appellee, Associated Air Services, Inc. to Dismiss the Appeal for Lack of Jurisdiction (DE 9). A brief chronology of the events leading up to this appeal is in order. Associated Air Services, Inc., the debtor in possession, filed in 1983 a petition for reorganization under Chapter 11 of the Bankruptcy Code. WJC, Inc. was ruled, in an adversary proceeding, to be an unsecured creditor of Associated Air Services, Inc. WJC filed a claim in the bankruptcy proceeding, which claim was objected to by the debtor, Associated Air. On July 31, 1986, the Bankruptcy Court dismissed WJC's claim as a sanction for its willful failure to attend a deposition. WJC moved the Bankruptcy Court to rehear its dismissal ruling. The Bankruptcy Court conducted a hearing on August 25, 1986 on the motion for rehearing, and on September 15, 1986 the Bankruptcy Court denied that motion. On September 24, 1986 WJC appealed the Bankruptcy Court's order denying the motion for rehearing to the United States District Court. On January 6, 1987 that appeal was dismissed for failure to prosecute. On September 22, 1987 WJC moved the Bankruptcy Court to reinstate its claim and to reconsider its order dismissing WJC's claim. On December 4, 1987 the Bankruptcy Court denied the motion for reconsideration. Finally, on February 29, 1988 WJC appealed the Bankruptcy Court's order denying the motion to reconsider its order dismissing WJC's claim. Associated Air argues that this Court lacks jurisdiction over the present appeal. The Court agrees.
A party dissatisfied with an appealable bankruptcy order may appeal the court's decision immediately, or move the court to *107 reconsider its ruling. If a party opts to have the bankruptcy court reconsider its ruling, and does not get the desired result, he may then appeal both the order and the reconsideration ruling. The question presented in this case is whether a party may seek appellate review of a bankruptcy order denying reconsideration where the order sought to be revisited has been appealed and dismissed. In other words, may a party appeal a bankruptcy order and then, unsatisfied with the appellate court's ruling, go back to the bankruptcy court and ask it to reconsider the order? And, if so, may that party then appeal the bankruptcy court's denial of the motion for reconsideration?
Bankruptcy Rule 3008 provides that "A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order." Title 11 U.S.C. Section 502(j) similarly provides: "A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case. . . ." Section 502(j) has been construed to require that a motion for reconsideration must be filed before a case is closed. In Re Resources Reclamation Corp. of America, 34 B.R. 771 (9th Cir. BAP 1983). Rule 3008 has even broader time allowances for filing a motion for reconsideration. The Advisory Committee Notes to Bankruptcy Rule 3008 state:
The rule expands § 502(j) which provides for reconsideration of an allowance only before the case is closed. . . . If a case is reopened as provided in § 350(b) of the Code, reconsideration of the allowance or disallowance of a claim may be sought and granted in accordance with this rule.
Thus, the Bankruptcy Rules provide no clear deadline by which time a motion for reconsideration must be filed. In this case, when WJC moved the Bankruptcy Court to reconsider its order dismissing WJC's claim, the case was still open. The Bankruptcy judge did not consider the timeliness or procedural appropriateness of WJC's motion to reconsider. The Bankruptcy Rules do not explicitly prohibit filing of a motion for reconsideration after the order sought to be reconsidered has already been appealed. Nonetheless, it is implicitly obvious that such a practice would make a mockery of final judgments. Any party unsatisfied with an order could not only appeal the order, but then, if dissatisfied with the appeal, could move the bankruptcy court to reconsider the order; and, finally, if the bankruptcy court failed to reverse itself and the appellate court, the party could appeal the bankruptcy court's denial of the motion to reconsider. If this Court were to consider WJC's appeal and find it meritorious, we would be telling the bankruptcy court to reconsider an order this Court already upheld. Thus, even if WJC's motion for reconsideration was "timely," it was unauthorized.
Although it is unfortunate that WJC never received an appellate review of the order dismissing its claim on the merits, this Court cannot remedy that unfortunate situation by allowing an unauthorized appeal, based on an unauthorized motion before the Bankruptcy Court. Moreover, WJC has had its day in court. In fact, WJC has already enjoyed more than its fair share of days in court. It is, therefore,
ORDERED and ADJUDGED that WJC, INC.'s appeal is dismissed. All pending motions are dismissed as moot. The Clerk of the United States District Court is instructed to close the file.
DONE and ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1880051/ | 790 F. Supp. 1553 (1991)
Dacre Beth DRAPER, Plaintiff,
v.
John WALSH, individually and as Sheriff of Cleveland County, State of Oklahoma; and the Board of County Commissioners of the County of Cleveland, State of Oklahoma, Defendants.
No. CIV-91-1104-C.
United States District Court, W.D. Oklahoma.
December 17, 1991.
*1554 Norman P. McDonald, Oklahoma City, Okl., for plaintiff.
Reginald D. Gaston, Jamie J. McGraw, Dist. Attorney's Office, Norman, Okl., John M. Jacobsen, Dist. Attorney's Office, Oklahoma City, Okl., for defendants.
MEMORANDUM OPINION AND ORDER
CAUTHRON, District Judge.
I. INTRODUCTION
At issue is defendant John Walsh's motion for summary judgment filed November 19, 1991. Plaintiff Dacre Beth Draper responded on November 27, 1991. This case involves allegations of an illegal strip search of plaintiff following her arrest for public intoxication and subsequent detention at the Cleveland County Detention Center. This case is set on this Court's March 1992 trial docket.
II. STANDARD FOR SUMMARY JUDGMENT
The facts presented to the court upon a motion for summary judgment must be construed in a light most favorable to the nonmoving party. Board of Educ. v. Pico, 457 U.S. 853, 864, 102 S. Ct. 2799, 2806-07, 73 L. Ed. 2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985); Fed.R.Civ.P. 56(c).
Although the Court must view the facts and inferences drawn from the record in a light most favorable to the nonmoving party, "even under this standard there are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chem. Co., 849 F.2d 1269, 1273 (10th Cir.1988). As stated by the Supreme Court, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986) (quoting Fed. R.Civ.P. 1).
The Supreme Court articulated the standard to be used in summary judgment cases, emphasizing the "requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (emphasis in original). A dispute is "genuine" "if a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. The Court stated that the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512. "The mere existence of a scintilla of *1555 evidence in support of the [party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [party]." Id. at 252, 106 S.Ct. at 2512.
III. UNDISPUTED FACTS
Rule 14(B) of the Western District of Oklahoma provides a framework for determining undisputed facts at the summary judgment stage. The Rule provides:
The brief in support of a motion for summary judgment (or partial summary judgment) shall begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies. The brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section which contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.
W.D.Okla.R. 14(B).
A review of Walsh's brief and Draper's response reveals that the following facts are undisputed within the meaning of Rule 14(B) for the purposes of this motion only:
1. Probable cause existed to arrest Dacre Beth Draper on or about February 23, 1990, on the charge of public intoxication while she was an occupant in a vehicle being operated in the county of Cleveland County, State of Oklahoma.
2. Draper is not contesting the fact that there was probable cause for her arrest on or about February 23, 1990.
3. Subsequent to Draper's arrest, she was brought to the Cleveland County Detention Center in Cleveland County, State of Oklahoma, at approximately 1:30 a.m., February 23, 1990.
4. Draper was unable to post bond in her own behalf when she was brought to the Cleveland County Detention Center.
5. Draper was given the opportunity while at the Cleveland County Detention Center to place two phone calls. One call was completed. Records indicate that the call was placed approximately 8:17 a.m. on February 23, 1990. Records also indicate that Draper refused to place a second call, although given the opportunity.
6. When an arrestee is placed in the Cleveland County Detention Center, precautions are taken to insure the safety of the arrestee, along with jail personnel and other detainees in the Center. The precaution may involve strip searching the arrestee in order to maintain the security of the Center and insure the safety of all persons confined in the facility and the jail personnel.
7. The procedure for strip searching arrestees who are brought into the Cleveland County Detention Center and cannot post immediate bond for a bondable offense entails having only female jail personnel conduct strip searches of female arrestees, in an area segregated from view of all other arrestees, with no touching of the arrested person by jail personnel.
8. The strip search policy of the Cleveland County Detention Center is designed to maintain security in the facility and is conducted in a manner involving the least amount of personal intrusion, in a segregated place involving just the person being searched and jail personnel of the same gender.
9. Because of the relatively long period of detainment of Draper in the Center, such being approximately seven and a half hours, it became necessary to process her into the facility, classify her, and begin the procedure to move her upstairs to an area intermingling pretrial detainees and convicted persons.
10. Prior to moving an individual from the booking area to the upstairs holding *1556 cells, strip searches are conducted in order to maintain security of the facility and insure the safety of jail personnel, the person being moved upstairs, and other detainees.
11. At all times connected with this lawsuit, Sheriff John Walsh was functioning in his official capacity as Sheriff of Cleveland County, State of Oklahoma.
12. At no time did Walsh personally participate in the actual arrest, booking, search, or detainment of Draper.
13. At no time did Walsh act with ill will, malice, or a desire to injure plaintiff's constitutional rights.
14. Kenneth Zane, Cleveland County Detention Center Jail Administrator, has attested that during his employment at the Center, various items of contraband have been brought into the Center by arrestees and found during security checks.
15. Records kept by the Cleveland County Detention Center in the normal course of business operation indicate and detail that contraband has been concealed and carried into the Center by arrestees and in many occasions, contraband is found on the persons or inside the Center. Walsh's brief at 1-3 (Nov. 19, 1991); Draper's response brief at 1-2 (unnumbered) (Nov. 27, 1991).
IV. ANALYSIS
Walsh moves for summary judgment based on a qualified immunity defense. See Snell v. Tunnell, 920 F.2d 673, 696-97 (10th Cir.1990) (discussing qualified immunity defense), cert. denied sub nom., ___ U.S. ___, 111 S. Ct. 1622, 113 L. Ed. 2d 719 (1991); Coen v. Runner, 854 F.2d 374, 377 (10th Cir.1988) (discussing standard for granting summary judgment based on qualified immunity). The Court's task is a fact-specific legal inquiry: "Do the facts alleged by the plaintiff[] support a violation of clearly established statutory or constitutional rights of which a reasonable person would have known." Snell v. Tunnell, 920 F.2d at 696; see Meade v. Grubbs, 841 F.2d 1512, 1533 (10th Cir.1988) (the issue is whether the law was clearly established when the conduct complained of occurred). The facts in this case were not disputed by Draper pursuant to W.D.Okla.R. 14(B) as noted in the previous section. However, the Court sua sponte finds some genuine disputes of material facts as fully developed below. After considering these facts the Court finds that the law was clearly established at the time Draper was strip searched on February 23, 1990, that a reasonable official would know under the circumstances that her search violated her Fourth and Fourteenth Amendment rights. U.S. Const. amends. IV & XIV. The Fourth Amendment only prohibits unreasonable searches; however, with certain exceptions "[w]arrantless searches are per se unreasonable under the Fourth Amendment." United States v. Lopez, 777 F.2d 543, 550 (10th Cir.1985) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). Walsh must show that his actions were objectively reasonable in light of the law and the information he possessed at the time. Coen v. Runner, 854 F.2d at 377.
Seven years ago the Tenth Circuit Court of Appeals found 42 U.S.C. § 1983 liability when a detainee was strip searched after being jailed for an unpaid speeding ticket and violation of a driver's license restriction. Hill v. Bogans, 735 F.2d 391, 392-95 (10th Cir.1984); see generally Annotation, Fourth Amendment As Prohibiting Strip Searches Of Arrestees Or Pretrial Detainees, 78 A.L.R.Fed. 201, 216-19, § 6[b] (1986) & Supp. at 8-9 (1990). The Tenth Circuit found that there were no circumstances in that case that indicated the detainee might possess either a weapon or drugs, and that intermingling with the prison population was only one factor to consider in judging the constitutionality of a strip search. Hill v. Bogans, 735 F.2d at 394.
In the present case the Cleveland County Detention Center has instituted a policy of indiscriminate strip searching of all prisoners with total disregard to the constitutional mandates of the Fourth Amendment, which condones only reasonable searches. See Walsh's brief at Ex. A, p. 4, ¶ 11 (Nov. 19, 1991) (Cleveland County Sheriff's Department *1557 Admissions Procedure, No. 24.01 (Aug. 1, 1982)) (Detention Deputy "[w]ill inspect prisoner and prisoner[']s clothing for contraband while conducting unclothed body search.") (emphasis supplied).[1]
At the motion to dismiss stage, prior to the introduction of any evidence, this Court was undecided whether Draper's charge of public intoxication could be included as an offense where strip searching is per se permissible such as those associated with the concealment of weapons or contraband in a body cavity. See Order Granting Motion To Dismiss And Denying Motion To Strike at 2 (W.D.Okla. Sept. 4, 1991); see also Bell v. Wolfish, 441 U.S. 520, 523-24, 558-59, 99 S. Ct. 1861, 1866, 1884, 60 L. Ed. 2d 447 (1979) (finding that visual body cavity searches of correctional inmates did not violate the Fourth Amendment because of serious security dangers and the smuggling of money, drugs, weapons, and other contraband among inmates with more serious offenses than minor traffic offenses who were unable to make bail, awaiting trial for substantial periods, and who were returning from contact visits outside the institution).
However, in Hill v. Bogans the Tenth Circuit noted that it agreed with the analysis of the Fourth Circuit in Logan v. Shealy, 660 F.2d 1007 (4th Cir.1981), cert. denied sub nom., 455 U.S. 942, 102 S. Ct. 1435, 71 L. Ed. 2d 653 (1982). The Tenth Circuit quoted Logan v. Shealy for its analysis in holding unconstitutional the practice of strip searching a detainee charged with driving while intoxicated:
"On the undisputed and stipulated evidence, Logan's strip search bore no such discernible relationship to security needs at the Detention Center that, when balanced against the ultimate invasion of personal rights involved, it could reasonably be thought justified. At no time would Logan or similar detainees be intermingled with the general jail population; her offense, though not a minor traffic offense, was nevertheless one not commonly associated by its very nature with the possession of weapons or contraband; there was no cause in her specific case to believe that she might possess either; and when strip-searched, she had been at the Detention Center for one and one-half hours without even a pat-down search. An indiscriminate strip search policy routinely applied to detainees such as Logan along with all other detainees cannot be constitutionally justified simply on the basis of administrative ease in attending to security consideration."
Hill v. Bogans, 735 F.2d at 394 (emphasis supplied) (quoting Logan v. Shealy, 660 F.2d at 1013). The Tenth Circuit embraced the quoted analysis in Logan v. Shealy, which found that driving while intoxicated is not an offense that, without more, permits indiscriminate strip searching. Therefore, this Court concludes that public intoxication by alcohol, which is a less serious offense than driving while intoxicated, is likewise an offense not commonly associated by its very nature with the possession of weapons or contraband.[2]Cf. Lusby v. T.G. *1558 & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir.1984) ("A strip search is not improper when a suspect is going to be placed in the general jail population and has been charged with a drug offense such as possession of marijuana.") (emphasis supplied), vacated sub nom. and remanded for reconsideration on other grounds, Lawton v. Lusby, 474 U.S. 805, 106 S. Ct. 40, 88 L. Ed. 2d 33 (1985), reaffirmed on remand, 796 F.2d 1307, 1313 (10th Cir.), cert. denied, 479 U.S. 884, 107 S. Ct. 275, 93 L. Ed. 2d 251 (1986).
Moreover, while the Fourth Circuit in Logan v. Shealy was persuaded in part by the fact that the detainee in that case was not intermingled with the general detention center population that included convicted offenders, the Tenth Circuit in Hill v. Bogans, as noted above, did not find that factor to be conclusive as to whether strip searching was permissible, but rather "only one factor to consider in judging the constitutionality of a strip search." Hill v. Bogans, 735 F.2d at 394; see Logan v. Shealy, 660 F.2d at 1013 (quoted above). It is undisputed in this case that Draper was taken to an area in the Detention Center where detainees are intermingled with convictees.[3] The Court's task is to balance the need for the particular search against the invasion of personal rights that the search entails. This consideration involves the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Hill v. Bogans, 735 F.2d at 393-94.
Draper was subjected to a visual strip search, and it is undisputed that it was conducted in a manner involving the least amount of personal intrusion, in a segregated place involving just the person being searched and jail personnel of the same sex and not in the view of any other arrestees, with no touching of the arrested person by jail personnel.[4] The place of the search was proper.
However, with regard to the manner of the search, Walsh contends that the strip search was dignified. This characterization offends the Court's sensibilities. Second only to body cavity searches, strip searches are the most debasing indignities to which American citizens are subjected by the government. In quick passing, a strip search sounds innocuous enough, but on closer scrutiny it involves involuntary *1559 exposure and close inspection of the breasts, genitalia, and buttocks, as well as the unwelcome revelation of medical and other highly personal physical secrets to a cold stranger.[5]See Bell v. Wolfish, 441 U.S. at 558 n. 39, 99 S.Ct. at 1884 n. 39 ("If the inmate is a male, he must lift his genitals and bend over to spread his buttocks for visual inspection. The vaginal and anal cavities of female inmates also are visually inspected.").
The visual strip search is not as intrusive as the body cavity search where the investigator penetrates the body surface probing for contraband, but is certainly something less than the medical examinations in a clean, sterile environment to which Americans have become accustomed, and where privacy, confidentiality, and personal trust are respected and protected by law and professional licensing ethics. Strip searches can be described by a number of adjectives, but being dignified is not one of their number. Compare Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir.1986) (body cavity searches are demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, and signify degradation and submission; and perhaps are the greatest personal indignity searching officials can visit upon an individual) with Cruz v. Finney County, Kan., 656 F. Supp. 1001, 1004-06 (D.Kan.1987) (excellent survey of circuit opinions on strip-search law for detainees arrested for traffic violations or minor offenses) ("Strip searches involving the visual inspection of the anal and genital areas are `"demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission...."'") (emphasis supplied) (quoting Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (in turn quoting Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D.Wis.1979), aff'd and op. adopted per curiam, 620 F.2d 160, 161 (7th Cir.1980))); cf. also Bell v. Wolfish, 441 U.S. at 576-77, 594, 99 S.Ct. at 1893-94, 1903 (Stevens, J., dissenting) ("the body cavity searches ... represent one of the most grievous offenses against personal dignity and common decency." "The body-cavity search clearly the greatest personal indignity may be the least justifiable measure of all the security practices in the institution."); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980) (per curiam) (strip search of a minor student absent reasonable cause violates "any known principle of human decency" and "exceed[s] the `bounds of reason' by two and a half country miles.").
The Court is genuinely concerned with the manner, scope and necessity for the strip search under the circumstances of this case. Draper was detained for less than eight hours for the petty offense of public intoxication, and although she could not immediately bond out of jail due to the lack of funds on her person, there was a reasonable likelihood that she could make bond within a relatively short period of time as she made a phone call and arranged bond when she was first given the opportunity at 8:17 a.m. on February 23, 1990; she refused the second opportunity at 8:19 a.m., which was apparently unnecessary. Walsh's brief at Ex. B.
Draper was also cooperative during her arrest and there is no indication that she possessed weapons or contraband. The Fourth Amendment's mandates for reasonable searches are less restrictive on prisoners convicted of crimes than for detainees, such as Draper, who have not even been arraigned, and are held merely on a law enforcement officer's belief that there is probable cause for an arrest. At this stage of detention, and when the detainee is arrested for a petty offense, such as public intoxication, and there is no reasonable, individualized suspicion that the detainee is hiding contraband or weapons, then the Fourth Amendment requires that the detainee not be subjected to the humiliation of being totally stripped of all clothing *1560 while a government agent visually inspects the naked body for contraband. See Levoy v. Mills, 788 F.2d 1437, 1439 (10th Cir.1986) ("`"`[T]he greater the intrusion, the greater must be the reason for conducting a search.'"'") (quoting Blackburn v. Snow, 771 F.2d 556, 565 (1st Cir.1985) (quoting United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978) (in turn quoting United States v. Love, 413 F. Supp. 1122, 1127 (S.D.Tex.), aff'd, 538 F.2d 898 (5th Cir.), cert. denied, 429 U.S. 1025, 97 S. Ct. 646, 50 L. Ed. 2d 628 (1976)))); Mary Beth G. v. City of Chicago, 723 F.2d at 1273 ("The more intrusive the search, the closer governmental authorities must come to demonstrating probable cause for believing the search will uncover the objects for which the search is conducted.") (citing Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S. Ct. 1868, 1878 n. 15, 20 L. Ed. 2d 889 (1968)); Cruz v. Finney County, Kan., 656 F.Supp. at 1005 ("reasonable suspicion may result from the `nature of the offense, the arrestee's appearance and conduct, and the prior arrest record.'") (quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984) (per curiam) ("[W]e hold that arrestees charged with minor offenses may be subjected to a strip search only if jail officials possess a reasonable suspicion that the individual arrestee is carrying or concealing contraband."), cert. denied, 471 U.S. 1053, 105 S. Ct. 2114, 85 L. Ed. 2d 479 (1985)); cf. Levoy v. Mills, 788 F.2d at 1439 ("Given the procedural posture of this case, it would be premature for us to formulate what standard of suspicion must exist before prison officials can conduct a body cavity search. For now, it suffices to say that the government must demonstrate a legitimate need to conduct such a search and that less intrusive measures would not satisfy that need.").
While Walsh contends that there is a general necessity for strip searches, the clearly established law indicates that, without more, such a concern is not enough to overcome the safeguards of the Fourth Amendment. See Hill v. Bogans, 735 F.2d at 394. Except for the nature of the suspects' offenses, which both are minor, and the places of the search one in a public area, the other in a private area this case is almost indistinguishable from the circumstances in Hill v. Bogans. The Court believes that the detention center's paramount interest in institutional security in this case could have been satisfied by a clothed, pat-down search. See Levoy v. Mills, 788 F.2d at 1439. Walsh has not convinced this Court that the intermingling of petty offense arrestees with convicted offenders was even necessary, much less prudent. Also, the institution could have explored the possibilities of requiring arrestees to strip down only to underwear, or even consensual strip searches in return for the privilege of transfer into areas that provide more freedom, comfort, or other privileges.
With the exception of reducing the degree of the humiliating impact of the searches, Walsh has otherwise blindly disregarded the lessons taught by Hill v. Bogans and has permitted a policy of indiscriminate strip searching, which encompasses the most minor traffic and petty offense arrestees. These persons are subjected to strip searching before a judge has even determined if there is probable cause to support their charges and further detention.
Every citizen who happens to enter the jurisdiction of Cleveland County is vulnerable to being subjected to this policy at the discretion of a police officer's belief in probable cause for an arrest for a traffic violation or other minor offense. The Court finds that policy No. 24.01 of the Cleveland County Sheriff's Office is unconstitutional on its face. See Stewart v. Lubbock County, Tex., 767 F.2d 153, 155-57 (5th Cir.1985) (affirming permanent injunction of unconstitutional across-the-board strip search of arrestees, including those charged with public intoxication), cert. denied, 475 U.S. 1066, 106 S. Ct. 1378, 89 L. Ed. 2d 604 (1986); accord Mary Beth G. v. City of Chicago, 723 F.2d at 1273 (upholding finding that strip search policy was unreasonable under the Fourth Amendment). The Court therefore concludes that summary judgment cannot be granted on Walsh's qualified immunity defense, which "is available to police officers sued in their individual capacity when they could not reasonably have known that their actions violated the law." Munz v. Ryan, 752 *1561 F.Supp. 1537, 1540 (D.Kan.1990) (citing Ross v. Neff, 905 F.2d 1349, 1354 (10th Cir.1990)); see Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727, 2738-39, 73 L. Ed. 2d 396 (1982) ("If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct."); Melton v. City of Okla. City, 879 F.2d 706, 731 (10th Cir.) ("[O]fficials are presumed to know and abide by clearly established law."), reh'g en banc granted in part on other grounds, 888 F.2d 724 (10th Cir.1989) (per curiam), on reh'g en banc, 928 F.2d 920 (10th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 296, 116 L. Ed. 2d 241 (1991).
Finally, Walsh moves for summary judgment on Draper's claim for punitive damages. However, Draper contends, despite failing to dispute the fact pursuant to W.D.Okla.R. 14(B), that Walsh deliberately acted with reckless indifference to her rights. Viewing the facts as noted above in a light most favorable to the nonmoving party, the Court finds that it cannot grant summary judgment to Walsh on the punitive damages claim. See Munz v. Ryan, 752 F.Supp. at 1548 ("Punitive damages are available under § 1983 `when the defendant's conduct is shown to ... involve[] reckless or callous indifference to the federally protected rights of others.'") (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983)); cf. Lavicky v. Burnett, 758 F.2d 468, 477 (10th Cir.1985) (holding that arrogant ignorance of the applicable legal rules does not by itself indicate reckless or callous indifference to federally protected rights, but within the context of an unlawful search of an automobile), cert. denied, 474 U.S. 1101, 106 S. Ct. 882, 88 L. Ed. 2d 917 (1986)).
V. CONCLUSION
Accordingly, the Court finds that summary judgment for defendant Walsh is DENIED.
IT IS SO ORDERED.
NOTES
[1] The Court notes that in one of Oklahoma's sister states, Colorado, a search like the one conducted on Draper is statutorily prohibited. See Colo.Rev.Stat. § 16-3-405(1) ("No person arrested for a traffic or a petty offense shall be strip searched, prior to arraignment, unless there is reasonable belief that the individual is concealing a weapon or a controlled substance or that the individual, upon identification, is a parolee or an offender serving a sentence in any correctional facility in the state or that the individual is arrested for driving while under the influence of drugs."), quoted in Hill v. Bogans, 735 F.2d at 393 n. 1.
[2] Draper's arrest report indicates that there was a "strong odor of an alcoholic beverage about her person" when she was arrested, and she otherwise exhibited symptoms of alcohol intoxication such as slurred, loud speech; unsteady balance; and red-glossy eyes, as opposed to any distinguishing signs of drug intoxication, such as, for example, an odor of marijuana or needle marks, or rapid speech. See Walsh's brief at Ex. A (Nov. 19, 1991). Draper was cooperative during her arrest and there was no indication of weapons or contraband associated with her arrest. See id. Prior to her arrest Draper was a passenger in a car in which the driver was arrested for driving under the influence, and Draper was abandoned following the arrest of the driver. Subsequently, Draper was arrested for public intoxication. Id.
As noted by Draper, her offense was merely the violation of Ordinance No. 15-302 of the City of Norman, Oklahoma, and was not an offense under the laws of the State of Oklahoma. Walsh cites 21 Okla.Stat. § 11(B) to support his argument that Draper might have been confined for up to one day for her offense, but the applicability of that statute is suspect because it only applies to offenses in violation of state laws as opposed to municipal ordinances. In any event it is undisputed that Draper was detained for only seven and a half hours, and the Court concludes that Draper was detained for a petty offense.
[3] The Court notes the incongruence of Walsh's position where on one hand he expresses a concern for security due to the intermingling of short-term detainees with long-term convictees that requires indiscriminate strip searching, but on the other hand he has exercised his discretion to practice such a policy in the first instance, which inherently creates the very security problem of which he is concerned. In any event, Walsh has not expressed any institutional requirement that dictates such a suspect intermingling policy. The security of prisoners, staff, and the institution would be greatly enhanced if short-term detainees, such as Draper, who could not post immediate bond for a bondable offense, but were reasonably likely to shortly make bond, were segregated from inmates who are convicted of crimes. In this regard classification of prisoners is one of the primary, discretionary, security measures that an institution official can make.
[4] Draper "contends" in the most general way that her strip search was an affront to human dignity and that she was physically touched by jail personnel during the strip search to which she was subjected. Draper's brief at 2 (Nov. 27, 1991). However, a party resisting a motion for summary judgment must do more than make conclusionary allegations; that party "must set forth facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Dart Indus. v. Plunkett Co., 704 F.2d 496, 498 (10th Cir.1983); see Lake Hefner Open Space Alliance v. Dole, 871 F.2d 943, 945-46 (10th Cir.1989) (Plaintiff did not "by affidavits or as otherwise ... set forth specific facts showing that there is a genuine issue for trial.") (emphasis supplied). "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Advisory Committee Note to Fed.R.Civ.P. 56(e)).
[5] Certain persons may be more offended than others about exposing their unclothed bodies to governmental strangers. For example, certain persons would be more highly susceptible to extreme emotional trauma from being strip searched who had physical deformities or amputations such as mastectomies, obvious venereal diseases such as blisters from genital herpes, hemorrhoids, incontinence, obesity, or menses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1880244/ | 100 B.R. 55 (1989)
In re Michael Allen RUSH, a/k/a Michael A. Rush, d/b/a Dutch Goose Club, Debtor.
Carol A. RUSH, Plaintiff-Appellee,
v.
Michael Allen RUSH, Defendant-Appellant.
Bankruptcy No. 85-40428, No. 87-4094 (85-0141).
United States District Court, D. Kansas.
May 3, 1989.
Robert E. Keeshan, Hamilton, Peterson, Tipton & Keeshan, Topeka, Kan., for plaintiff-appellee.
John C. Frieden, Frieden & Forbes, Topeka, Kan., for defendant-appellant.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This is an appeal from the decision of a bankruptcy judge in an adversary proceeding. The bankruptcy judge decided that a monthly house payment made by the debtor for the house occupied by the debtor's ex-wife and children was not dischargeable. The debtor/appellant contends that the payment is in the nature of a property settlement and therefore should be dischargeable. The appellee, debtor's ex-wife, contends that the payment is in the nature of support and under 11 U.S.C. § 523(a)(5) is not dischargeable. The factual findings of the bankruptcy judge should not be set aside unless they are clearly erroneous. Bankruptcy Rule 8013. Questions of law and mixed questions of law and fact are freely reviewable. In re Yeates, 807 F.2d 874, 877 (10th Cir.1986).
The bankruptcy judge based his decision upon the following findings: that the house payment ($110.88) was necessary to meet the living expenses of debtor's ex-wife and children; that the payment was "an award for necessities to provide a roof over the plaintiff's [appellee's] head;" that a disparity in income of the parties at the time of the divorce made it necessary for the debtor to pay part of the housing cost; and that without the payment in question, the support ordered by the state court judge would have been inadequate.
The appellant argues primarily that the payment was detailed in the "property settlement" portion of the divorce decree. It was not listed as alimony or child support. Furthermore, unlike alimony, the obligation to make the payment did not cease upon the death or remarriage of the appellee. Appellant also notes that the payment derives from the second mortgage taken upon a house, purchased originally from appellee's grandmother, in return for a $10,000 loan for appellant's business. Upon their divorce, appellee received the house and the first mortgage. Appellant received the business and the obligation to pay the second mortgage on the house. The parties considered it "fair" that appellant pay back *56 the $10,000 borrowed on the home for the ownership of his business.
The Tenth Circuit provided some guidance for deciding this appeal in In re Goin, 808 F.2d 1391, 1392-93 (10th Cir.1987). There, the court stated:
Generally, the determination of whether an obligation arising out of a divorce settlement is support is a matter of federal law, not state law. In re Long, 794 F.2d 928 (4th Cir.1986). Although state court decisions are to be regarded with deference, "bankruptcy courts are not bound by state laws that define an item as maintenance or property settlement, nor are they bound to accept a divorce decree's characterization of an award as maintenance or a property settlement." In re Williams, 703 F.2d 1055, 1057 (8th Cir.1983).
Federal courts have held that a bankruptcy court must look beyond the language of the decree to the intent of the parties and to the substance of the obligation. Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984). Several factors are pertinent to the bankruptcy court's determination of whether the debt is support: (1) if the agreement fails to provide explicitly for spousal support, the court may presume that the property settlement is intended for support if it appears under the circumstances that the spouse needs support; (2) when there are minor children and an imbalance of income, the payments are likely to be in the nature of support; (3) support or maintenance is indicated when the payments are made directly to the recipient and are paid in installments over a substantial period of time; and (4) an obligation that terminates on remarriage or death is indicative of an agreement for support. Shaver v. Shaver, 736 F.2d at 1316.
Other guidance is contained in In re Yeates, supra, 807 F.2d at 878. There, the court recognized the value of an agreed divorce decree in determining the intent of the parties.
A written agreement between the parties is persuasive evidence of intent. Tilley v. Jessee, 789 F.2d 1074, 1077 (4th Cir. 1986). Thus, if the agreement between the parties clearly shows that the parties intended the debt to reflect either support or a property settlement, then that characterization will normally control. On the other hand, if the agreement is ambiguous, then the court must determine the parties' intentions by looking to extrinsic evidence.
Such "extrinsic evidence" included: the factors mentioned in the Shaver v. Shaver opinion; the testimony of the parties at the divorce hearing; and the need for support, which the Circuit considered quite important.
The spouse's need for support is a very important factor in determining the intent of the parties. When the agreement is ambiguous, evidence that payment of the debt is necessary in order for the plaintiff to maintain daily necessities such as food, housing and transportation indicates that the parties intended the debt to be in the nature of support.
807 F.2d at 879.
Recently, the Circuit again reviewed this issue in Sylvester v. Sylvester, 865 F.2d 1164 (10th Cir.1989). There, the court examined a settlement agreement labeled a "property settlement." In spite of the label, the court affirmed the finding that the settlement agreement placed nondischargeable support obligations upon the debtor. This finding was based upon the following facts:
The settlement agreement segregates the property settlement provisions from appellant's [debtor's] obligations, see Yeates, 807 F.2d at 879; the agreement states that the obligations imposed upon appellant [debtor] are in consideration of appellee "relinquishing any rights that she might have against [appellant] for support," see id.; the parties had a minor child at the time of the divorce and appellant [debtor] had substantially more income tha[n] appellee, see Goin, 808 F.2d 1392-93; the agreement provides that appellant [debtor] is to make payments directly to appellee over a substantial period of time, see id. at 1393; and the obligation to make monthly payments to appellee terminates on remarriage or death, see id. Additionally, as the district *57 court found, "[t]he provisions in the agreement in dispute had the actual effect of providing support to the appellee enabling her to maintain a home . . . and have a monthly income."
865 F.2d at 1166.
In the present case, the appellee had custody of the marriage's three minor children. There was an imbalance of income. There was a need for support. Indeed, it is undisputed that the payments in question were needed to make the house payment. The payments were to be made directly to plaintiff in installments over a substantial period of time. These facts support the bankruptcy court's order. We acknowledge that the payments were described in the divorce decree as part of the property division of the parties and that the payments are not contingent upon the death or remarriage of appellee. Nevertheless, the fact sheet prepared by appellee and admitted without objection or significant correction as an exhibit at the divorce hearing, clearly demonstrates a shared intention to calculate the payments as part of appellant's support obligation. This is confirmed by appellant's testimony during the 2004 exam, as cited in appellee's brief.
In sum, the court finds that the written agreement between the parties is ambiguous when construed with the fact sheet admitted at the hearing. The preponderance of the evidence demonstrates that the parties intended the payments be in the nature of support. We therefore agree with the bankruptcy court that appellant's obligations are covered by § 523(a)(5) and, therefore, are not dischargeable in bankruptcy.
The order of the bankruptcy court is affirmed. The appellee has requested that a judgment for attorney's fees be entered against appellant. The court does not view this appeal as frivolous or made in bad faith. We decline to assess attorney's fees against appellant. A copy of this order shall be transmitted to the Clerk of the Bankruptcy Court.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1339352/ | 119 Ga. App. 821 (1969)
168 S.E.2d 898
McINVALE et al.
v.
TIFTON AIR SERVICE, INC.
44471.
Court of Appeals of Georgia.
Argued May 5, 1969.
Decided June 18, 1969.
*822 H. Thad Crawley, Dan S. Beeland, for appellants.
Sutton, Kelly & Pittman, for appellee.
FELTON, Chief Judge.
1. Enumerated error 1 is the following charge: "Gentlemen, I charge you that the lien of the judgment rendered before the recording of the prior mortgage is superior to the lien of the mortgage. Thus, if you find that the claim of Mrs. McInvale is based upon a security instrument which has not been perfected by recordation prior to the levy of the execution, then it would be your duty to find in favor of the plaintiff, Tifton Air Service, insofar as your consideration of the bill of sale to secure debt that she contends that she held." The first sentence in the above charge was a correct and applicable statement of the existing law, as found in Ga. L. 1962, pp. 156, 397 (Code Ann. § 109A-9-301 (1b)). There is no evidence that the judgment creditor had knowledge of claimant McInvale's unrecorded, unperfected security interest when it "[became] a lien creditor" ( § 109A-9-301 (1b)), since it became a lien creditor when it obtained the judgment, rather than when the execution thereon was levied. Nor did the evidence authorize a finding that the property levied on was in the possession of claimant McInvale, so as to relieve her of the necessity *823 of filing a financing statement to perfect her security interest in said collateral, as provided by Ga. L. 1962, pp. 156, 398 (Code Ann. § 109A-9-302 (1a)). Instead, the evidence demands the finding that the judgment debtor had deeded the property to his mother, claimant McInvale, with an option to buy it back from her at such time as he might become financially solvent. This constituted a "bulk transfer," as defined by Ga. L. 1962, pp. 156, 321 (Code Ann. § 109A-6-102), and, as the evidence shows no compliance with the requirements of the Uniform Commercial Code Bulk Transfers (Code Ann. Ch. 109A-6), possession remained in the judgment debtor insofar as his creditors were concerned. Code Ann. § 109A-6-105. The fact that this instruction did not apply to the claimant bank should have been apparent to the jury, both from the fact that the judgment was not entered prior to the recording of the bank's prior mortgage and the fact that the second sentence of the instruction specifically applied it to only Mrs. McInvale's claim. Enumerated error 1 is without merit.
2. Enumerated error 2 is the following charge: "I charge you that certain acts by a debtor are declared to be fraudulent in law against creditors and others, and as to them, null and void. One such act is any assignment or transfer by a debtor, insolvent at the time, of real or personal property, or choses in action of any description, to any person, either in trust or for the benefit of, or in behalf of, creditors, where any trust or benefit is reserved to the assignor or any person for him.
"Every conveyance of real or personal property by writing or otherwise and every born suit [sic], judgment and execution or contract of any description, had or made with intention to delay or defraud creditors and such intention known to the party taking, is likewise null and void. A bona fide transaction on the value for [sic] consideration and without notice or grounds for reasonable suspicion shall be valid." (Emphasis supplied.)
Even if the above instruction was error, for the contended reason that there was no evidence that the judgment debtor was insolvent at the time of his assignment or transfer of the property in question, it was not harmful error as to the claimants, since the jury made the explicit finding of fact that there was *824 no intention of fraud on the part of claimants. Furthermore, as indicated in Division 1, hereinabove, the judgment debtor's assignment or transfer was not effective to divest himself of possession of the property because of failure to comply with the bulk transfer law, therefore the purported transfer was null and void as to claimants even if the judgment debtor was not insolvent at that time. Enumerated error 2 is without merit.
3. Enumerated error 3 is a charge of the court stating that the levy of the execution was made, whereas it is contended that there is no evidence thereof. The claim affidavits and bonds recite that the property has been levied on, therefore the claimants are estopped from denying the levy. Hardy v. George C. Murdock Freight Lines, 99 Ga. App. 459 (3) (108 SE2d 739) and cit.; Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (5a).
4. Enumerated error 4 is as follows: "The court erred in failing to charge all of the law of claims that was material and applicable to the evidence and facts of the case. It did not charge as issues contended by appellants as to the law showing the rank of priorities under the instruments of bills of sale, absolute conveyances as against judgment; and especially the law peculiar to conflicting claims under the Universal [sic] Commercial Code [citing page numbers in the transcript of evidence of certain exhibits introduced in evidence]."
The court correctly charged as to the subordination of unperfected security interests to the rights of a lien creditor. Although the issue of the validity of the claimant bank's prior recorded bill of sale, on account of an error in the description of the covered property, was raised during the trial and argued in appellants' brief, the above enumerated error is not specific enough to show what the court should have charged, especially since there was no objection to the court's failure to charge.
The court did not err in entering judgments on the verdict for any of the reasons contended.
Judgment affirmed. Pannell and Quillian, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2799618/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ANGEL LE BELLOT, DOCKET NUMBER
Appellant, AT-0845-14-0987-I-1
v.
OFFICE OF PERSONNEL DATE: May 8, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Michael Angel Le Bellot, Homestead, Florida, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his apparent overpayment appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For
the reasons discussed below, we DENY the appellant’s petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The administrative judge issued an initial decision dismissing the
appellant’s appeal for lack of jurisdiction on the basis that the appellant failed to
show either that the Office of Personnel Management (OPM) issued a final
appealable decision or that OPM’s failure to do so constituted a de facto
appealable decision. Initial Appeal File, Tab 6, Initial Decision at 2-3; see, e.g.,
Fletcher v. Office of Personnel Management, 118 M.S.P.R. 632, ¶ 5 (2012). The
appellant does not challenge this finding on review and we see no reason to
disturb it. Thus, the administrative judge correctly dismissed the appeal for lack
of jurisdiction.
¶3 Based on documents that the appellant submitted with his petition for
review, it appears that the appellant is attempting to challenge a debt allegedly
owed to his former employing agency which is being collected from his interim
annuity via administrative offset. Petition for Review File, Tab 1 at 4-5, Tab 5.
The Board has limited jurisdiction to review whether the former employing
agency provided the required due process before having OPM offset a debt
against the appellant’s interim annuity but only when the issue is integral to the
disposition of an otherwise appealable action. Secrist v. U.S. Postal Service,
115 M.S.P.R. 199, ¶ 6 (2010); Ramirez v. Department of the Army, 86 M.S.P.R.
211, ¶ 11 (2000). Because the appellant has not shown jurisdiction over the
3
underlying appeal, the Board lacks jurisdiction to consider his administrative
offset claim.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for
information regarding pro bono representation for Merit Systems Protection
4
Board appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C. | 01-03-2023 | 05-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892651/ | NO. 07-04-0389-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 8, 2005
______________________________
DENNIS WYNN FISHER and wife, JEAN M. FISHER,
Appellants
v.
DEFORD PROPERTIES, a partnership, HOMER H. DEFORD, individually,
and DEFORD LUMBER CO., a limited partnership,
Appellees
_________________________________
FROM THE 173rd DISTRICT COURT OF HENDERSON COUNTY;
NO. 91A-495; HON. JACK H. HOLLAND, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellants Dennis Wynn Fisher and his wife Jean M. Fisher (the Fishers) appeal
from a take-nothing judgment entered in their lawsuit against appellees DeFord Properties,
Homer H. DeFord and DeFord Lumber Co. (collectively referred to as "DeFord"). In that
lawsuit, the Fishers sought an injunction to prevent DeFord from interfering with their use
of a 30 foot wide easement across the property of DeFord and damages from past
interference with the use of that easement. (1) In two issues, the Fishers contend 1) the
evidence is legally and factually insufficient to support the trial court's conclusion that they
"did not sustain their burden of proof by a preponderance of the evidence and did not
establish any measure of damages with a reasonable degree of certainty," and 2) the trial
court erred in refusing to enter additional findings of fact and conclusions of law. We affirm
the judgment of the trial court.
The Veterans Land Board of Texas owns a 40-acre tract of land in Henderson
County which is surrounded by land owned by DeFord. The Land Board also has a 30-foot
easement across the property of DeFord by which to gain access to the 40-acre tract of
land. The Fishers have a contract for deed with the Veterans Land Board for the 40 acres.
No improvements are currently situated on the property. The Fishers complain of
interference with their use of the easement during the years 1985 through 1991.
Issue 1 - Sufficiency of the Evidence
In their first issue, the Fishers argue that the evidence does not support the trial
court's findings of fact. The trial court found that neither DeFord nor its agents, servants,
or employees committed any acts that interfered with or hindered the use and benefit of the
easement. More specifically, the court found that DeFord did not:
a. place hay bales, farm equipment or other obstructions on the easement
which interfered with Plaintiffs' use thereof:
b. construct a tank on lands owned by Defendants that diverted water onto
the easement way;
c. construct a barn or other improvements on the boundary line of the
easement that interfered with Plaintiffs' use thereof;
d. remove any trees adjoining or within the easement or recontour . . .
Defendants' land in any way that resulted in changing or rechanneling the
flow of water in any way such as to destroy the easement way and interfere
with Plaintiffs' use thereof.
A trial court's findings of fact have the same weight, force, and dignity as a jury's
verdict. Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 314 (Tex. App.-Amarillo
2001, pet. denied). To determine if the evidence is legally sufficient to support a finding,
all the record evidence and inferences must be viewed in a light favorable to the finding,
and if anything more than a scintilla of evidence exists, the finding is legally sufficient. Id.
In a factual sufficiency review, we review all the evidence and reverse only if the finding is
so against the great weight and preponderance of the evidence as to be manifestly unjust.
Id. at 314-15.
Homer DeFord testified that 1) he and his employees trimmed some overhanging
limbs on trees which belonged to him but never cut down any trees from the easement area
or trimmed brush on the easement, 2) he cleaned and enlarged a tank which existed on the
left side of the easement when he bought his land, but the elevation of the tank is lower
than the easement and does not divert water onto the easement, 3) he and his employees
never changed the contour of the land, 4) the first or second year he stored some hay
along the easement which took up four feet of the 30-foot easement, but never did so again
after the Fishers complained, 5) an eight foot wide fertilizer truck was parked on the
easement one time for a day or two, 6) he never did anything to his land or the adjoining
area that created a problem on the easement and he never interfered with the easement
rights, 7) because the Fishers left the gate open, he installed locks on the gate but gave
the Fishers a key, and 8) he was not required to maintain the easement.
David Anderson, who worked as ranch foreman for DeFord during the relevant
years, testified that 1) the land was never recontoured, 2) he used a bulldozer to clear
some brush around a tree but there was no change to the flow of the water on the land,
3) he trimmed a hanging limb and also observed the Fishers trimming trees, 4) the barn is
built off of the easement, 5) the fence is built on the edge of the easement and does not
interfere with its use, 6) he provided the Fishers with a lock so they had access to the
easement, 7) he parked a fertilizer truck on the easement on one or two occasions, 8) he
did not plant any trees on the easement, and 9) the water edge from the tank does not
reach the easement. The trial court also had photographs before it from which to observe
the location of the barn, fence, and tank, the condition of the easement, and the location
of trees.
Dennis Fisher testified that he had to cut trees and install a concrete crossing to
make the easement passable. Although his testimony as to acts of interference was
contradictory to some if not most of the evidence presented by DeFord, in a bench trial, the
trial court is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Sterquell v. Scott, 140 S.W.3d 453, 461 (Tex. App.-Amarillo 2004, no pet.);
Ponce v. Sandoval, 68 S.W.3d 799, 806 (Tex. App.-Amarillo 2001, no pet.). The trial court
also resolves inconsistencies in the evidence. Ponce v. Sandoval, 68 S.W.3d at 806. The
evidence cited above constitutes more than a scintilla of evidence to support the trial court's
findings. Furthermore, when the record is considered as a whole, it is not so against the
great weight and preponderance of the evidence as to be manifestly unjust. Therefore, the
sufficiency issues are overruled.
Issue 2 - Additional Findings of Fact and Conclusions of Law
In their second issue, the Fishers complain that the trial court failed to enter
additional requested findings of fact and conclusions of law. We overrule the issue.
The findings and conclusions sought by the Fishers contradict those actually entered
by the trial court. It is clear that a trial court does not err in refusing to issue additional
findings that are encompassed within its former findings but contradict them. Asai v. Vanco
Insulation Abatement, Inc., 932 S.W.2d 118, 121 (Tex. App.-El Paso 1996, no writ). That
is the circumstance here.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
1. DeFord counterclaimed against the Fishers, and the court ordered that DeFord take nothing on the
counterclaim. That portion of the court's judgment has not been appealed. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128806/ | 538 U.S. 970
WOODSONv.HUTCHINSON, WARDEN, ET AL.
No. 02-9375.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 52 Fed. Appx. 195. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3006164/ | ORIGE|\EAT
llntllt@nift[ btutts @ourt of ft[trs[ @lsimg
No. 15-324C FILED
iFiled: September 30. 2015)
sEP 3 0 20t5
WILLIAM GERALD PzuCE, oloti."oo.'&lpnL
Pro Se Plaintiff,
Motion to Dismiss for Lack of
Jurisdiction; RCFC 12(bXl); Pro Se
THE LINITED STATES,
Defendant.
ORDER
In this action, pro se plaintiff William Price seeks 53,000,000 from the United
States ("the govemment") as damages arising from actions of North Carolina state
officials and a private citizen in two North Carolina state court proceedings. Specifically,
Mr. Price alleges that in the first proceeding, a civil action between private parties, he
was prevented as a nonparty from addressing the court. He also complains that in both
proceedings, he was referred to as a member of the "sovereign citizen" movement.
Finally, he objects to being referred to as a citizen of the United States.
Mr. Price asserts that this court has jurisdiction under the Tucker Act, 28 U.S.C. $
149 I . In the alternative, Mr. Price requests that this court transfer the matter to another
court that would have jurisdiction. The government has moved to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States
court of Federal claims ('RCFC'). In addition, the government argues that transfer ts
not warranted.
The court has determined that oral argument is not necessary. For the reasons that
follow, the government's motion to dismiss is GRANTED and Mr' Price's request for
transfer is DENIED.
L lntroduction
Mr. Price filed his original complaint in this case on March 30, 2015. Mr' Price's
claims arise from two North Carolina state court proceedings. In one, a civil action
between private parties,, he was prevented as a nonparty from addressing the court.
Compl. 6. In both proceedings, Mr. Price was referred to as a member of the "sovereign
citizen" movement. Compl. 2-4. He requested damages "in excess of $3,000,000 for. ' .
gross negligence, inalienable rights deprivation, violations ofregulations of executive
departments, violations of acts ofcongress, constitutional violations, property rights
deprivation, slander, humiliation, embarrassment, Iand] defamation of character."
Compl, 6. Mr. Price also argued, citing the "Lieber Code" and the "Hague Conventions
of 1917," that it is a "capital crime to change [his] status from a civilian State Citizen to a
lunited States citizen]." Compl. 6. Finally, Mr. Price requested a jury trial, punitive
damages, and expenses. Compl. 7.
On April 23,2015, the government filed its hrst motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule l2(bX1). The govemment pointed out that,
despite the case caption, Mr. Price had not made any claims against the United States.
The govemment also argued that Mr. Price had not identified any particular federal
statutes or regulations he alleges were violated'
on June 2,2}l5,the court granted Mr. Price's motion to amend his complaint. In
the same order, the court stayed briefing on the government's motion to dismiss and
denied as moot a separate request by Mr. Price for enlargement of time.
Mr. Price filed an amended complaint on June 29,2015. As an initial matter, he
objects to the "mischaracterization of civilian citizens" as United States citizens. Am.
Compl. 1. In addition, while the underlying facts alleged did not change, Mr. Price added
claims ofunjust enrichment and deprivation of liberty and a reference to the "Geneva
Protocols of 1949;' ld. at1.
The following day, June 30,2015, the govemment filed a renewed motion to
dismiss for lack of jurisdiction. The government argues that Mr. Price's amended
complaint fails to allege a claim against the United States, or one that is based on a
contract with the United States, or which is based upon a money-mandating provision of
the Constitution, a federal statute, or a federal regulation, as required under the Tucker
Act. 28 U.S.C. $ 1491 . Mr. Price's claims seem to be against state officials and private
individuals in North Carolina and have "[no]thing whatsoever to do with any
Government contract, or with a money mandating statute, regulation, or constitutional
provision." Def s Renewed Mot. to Dismiss 6-7. Therefore, the govemment argues, this
court lacks jurisdiction.
On August 5,2015, Mr. Price filed a "motion for clarification and objection" in
response to the government's motion to dismiss. Mr. Price requested clarification
,,[w]hich united states is referred to, in the Motion to Dismiss" and objected that the
govemment failed to answer timely, plead, defend, or request an enlargement of time to
file a pleading. Pl.'s Mot. for Clarification & Obj. 1.
On August 26,2015,the govemment filed a response to Mr. Price' motion. The
response explained that the government's motion to dismiss was timely pursuant to
RCFC Rule l2({$) and reiterated the government's request for dismissal for lack of
subj ect matter jurisdiction.
Mr. Price frled a second motion for clarification and objection on September 10,
2015. Mr. Price largely repeats his earlier assertions and objections, but also requests
that the court transfer this case if the court determines that it lacks jurisdiction.
The government f,rled a response to Mr. Price's second motion on September 15,
2015. With regard to Mr. Price's request for transfer in the event the court finds that it
lacks jurisdiction, the govemment argues that this case does not meet the criteria for
transfer laid out in 28 U.S.C. $ 163 I because Mr. Price's claims are frivolous and do not
state any possible federal claim or any basis for federal court jurisdiction.
il. Legal Standards
The plaintiffbears the burden ofestablishing subject matter jurisdiction and must
do so by a preponderance of the evidence. Estes Express Lines v. United States ,739 F .3d
689,692 (Fed. Cir. 2014) (citing Reynolds v. Army & Air Force Exch. Serv.,846F.2d
746,748 (Fed. Cir. 1988)). Subject-matter jurisdiction can never be forfeited or waived.
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
4
In deciding a motion to dismiss for lack of subject matter jurisdiction, the court
accepts as true all uncontroverted factual allegations in the complaint, and construes them
in the light most favorable to the plaintiff. See Cedars-Sinai Med. Ctr. v. Watkins, 11
F.3d 1573, 1583-84 (Fed. Cir. 1993). However, if a motion to dismiss for lack of
jurisdiction challenges the truth of the alleged jurisdictional facts, a court is not restricted
to the face ofthe pleadings and may review extrinsic evidence in order to establish the
predicate jurisdictional facts. Id. at 1584; see also Banks v. United States ,741 F .3d 1268,
1277 $ed. Cir. 2014).
The Tucker Act, 28 U.S.C. $ 1491, grants this court jurisdiction over claims
against the govemment that are founded on the Constitution, laws, treaties, or contracts of
the United States. See. e.g., Fisher v. United States , 402 F .3d 1167 , ll72 (Fed' Cir.
2005) (en banc in relevant part). However, the Tucker Act does not creates substantive
rights; it only waives sovereign immunity for claims premised on other sources of law,
such as statutes or contracts, that "can fairly be interpreted as mandating compensation by
the Federal Govemment for the damages sustained." Jan's Helicopter Serv.. Inc. v.
F.A.A., 525 F.3d 1299,1306 (Fed. Cir.2008) (quoting United States v. Mitchell,463
u.s. 206, 2r6-t7 (1983)),
A pro se complaint is held "to less stringent standards than formal pleadings
drafted by lawyers." Matthews v. United States, 750 F.3d 1320,1322 (Fed. Cir. 2014)
(quoting Haines v. Kerner, 404 U.S. 519,520-21 (1972)). However, a pro se plaintiff
must nevertheless meet jurisdictional requirements. Mora v. United States, 1 18 Fed. Cl.
713,715 (2014) (citing Kelley v. U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed' Cir'
1987); Bernard v. United States, 59 Fed. C|.497,499 (2004)).
Finally, if a court finds that it lacks jurisdiction to hear a case, the court must
transfer the case to another court, as defined in 28 U'S'C. $ 610, that does have
jurisdiction "if it is in the interest ofjustice." 28 U.S.C. $ 1631. The Federal Circuit has
determined that the phrase "if it is in the interest ofjustice" relates to claims which are
nonfrivolous. See Galloway Farms. Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir.
1987). "Put another way, this Court should transfer the matter unless it finds that the case
involves 'legal points not arguable on the merits' or that the 'disposition is obvious'"'
Ross v. United States,l22Fed. Cl. 343, 349 (2015) (citing Galloway Farms,834F.2d at
r 000-01).
ilI. Discussion
A. This court lacks jurisdiction to hear Mr. Price's claims'
Mr. Price's complaint fails to articulate a claim within this court's jurisdiction.
Despite naming the United States as defendant, Mr. Price's complaint seeks damages
arising from actions of North Carolina state officials and a private citizen in North
Carolina state court proceedings. This court lacks jurisdiction over claims where the
defendant is any entity other than the United States. Davis v. United States, No. 09-
862C,2010 WL 1685907, at *4 (Fed. Cl. Apr. 22,2010) (citing 28 U.S.C. $ 1491; United
States v. Sherwood,312 U.S. 584, 588 (1941). Therefore, any claims againstNorth
Carolina, state officials, or private individuals are outside this court's jurisdiction and
should be dismissed pursuant to RCFC 12(bXl). In addition, the actions of state officials
generally cannot be attributed to the united States. see withers v. United States, No. 06-
64C,2006 WL 5640831!, at *2 (Fed. Cl. June 14,2006) (citing Shewfeltv. United States,
104 F.3d 1333, 1337-38 (Fed. Cir. 1997). Finally, even if the court interprets Mr. Price's
claims as being made against the United States, he does not identifi' any source of law
that can fairly be interpreted as money mandating. Mr. Price's vague references to
violations of constitutional provisions, statutes, and regulations, as well as his citations to
the laws of war, are insuffrcient.
B. Transfer would not be in the interest ofjustice.
Mr. Price asks this court to transfer his case in the event this court finds that it
lacks jurisdiction. However, transfer is inappropriate here because no other court, as
defined in the transfer statute,r appears to have jurisdiction and because Mr. Price's
claims are frivolous. Mr. Price's case does not meet the requirements for diversity
jurisdiction under 28 U.S.C. $ 1332. As alleged in the complaint, Mr. Price is a citizen of
North Carolina and appears to be making claims against other private citizens of North
Carolina, North Carolina state officials, and the state itself. In addition, Mr. Price's
claims related to alleged "negligence, . . . slander, humiliation, embarrassment, [and]
defamation of character" do not raise a federal question under 28 U.S.C. $ 1331. Finally,
any claim that could be interpreted as raising a federal question entirely lacks merit. Mr.
t The term "courts" includes the courts of appeals and district courts of the United States,
the United States District Court for the District of the Canal Zone, the District Court of
Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims,
and the Court of International Trade. 28 U.S.C. S 610.
Price's objections to being prevented, as a nonparty, from addressing a court and to being
referred to as a member of the "sovereign citizen" movement and as a citizen of the
United States, without more, do not amount to a valid claim arising under the
Constitution, laws, or treaties of the United States. See id.; cf. Cooper v. United States,
104 Fed. Cl. 306, 315 (2012) (transferring, to district court, nonfrivolous claims that
related to pro se prisoner plaintiff s criminal trial, conviction, and imprisonment and
claims that the government acted in an unlawful manner in connection with the plaintiff s
prosecution).
W. Conclusion
For these reasons, the govemment's motion to dismiss Mr. Price's complaint for
lack of subject matter jurisdiction pursuant to RCFC l2(bxl) is GRANTED and Mr.
Price's request for transfer is DENIED. The Clerk is directed to enter judgment
accordingly. Each party shall bear its own costs.
IT IS SO ORDERED.
NANCY B. FIRESTONE
Judge | 01-03-2023 | 09-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128798/ | 538 U.S. 969
MANTILLAv.UNITED STATES ET AL.
No. 02-9346.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
2
C. A. 3d Cir. Certiorari denied. Reported below: 302 F. 3d 182. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/997809/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7144
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT CARL DOUGLAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
District Judge. (CR-92-33, CA-97-561-2)
Submitted: January 21, 1999 Decided: February 9, 1999
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Carl Douglas, Appellant Pro Se. Lisa Blue Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Carl Douglas 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 district court’s
opinion accepting the recommendation of the magistrate judge and
find no reversible error. Accordingly, we deny a certificate of
appealability and dismiss the appeal on the reasoning of the dis-
trict court. See United States v. Douglas, No. CR-92-33; CA-97-
561-2 (M.D.N.C. May 29, 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/128810/ | 538 U.S. 970
KEELERv.UNITED STATES.
No. 02-9392.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
2
C. A. 10th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3806549/ | Prior to the incident leading up to the filing of this action, the city of Poteau obtained its gas supply from the LeFlore County Gas Electric Company at a rate of 25c per thousand cubic feet for domestic purposes, and a minimum of 5c per thousand cubic feet for industrial purposes. The American Indian Oil Gas Company, plaintiff in error here, having developed a gas field in close proximity to Poteau, and desiring to find or create a market for their gas, applied to the city of Poteau for a franchise authorizing it also to pipe gas to the city. The franchise, in pursuance to the request of the plaintiff in error, was voted by the people of the city of Poteau, the rates fixed in said franchise to be charged for the gas not to be more than 15c per thousand cubic feet. Subsequently the plaintiff in error purchased the distributing line of the LeFlore County Gas Electric Company, thereby becoming the sole furnisher and distributor of gas to the citizens of the city of Poteau.
Plaintiff in error made application to the Corporation Commission for an increase in rates to be charged for the gas so furnished, and pending the hearing on this application a temporary rate of 25c per thousand cubic feet was agreed upon between the representatives of the plaintiff in error, the city authorities of Poteau, and the Corporation Commission, and on June 4, 1923, at a hearing of the application, the Corporation Commission by its order put into force and effect a rate of 20c per thousand cubic feet for the first one hundred thousand feet used each month. A rehearing was granted by the Corporation Commission, leaving in effect the temporary rate fixed by the Commission.
In January, 1924, the plaintiff in error filed another application for an increase in rates, and by agreement the two cases were consolidated, and after several hearings the Corporation Commission promulgated Order No. 2507, finding:
"That the reasonable present value of the properties used and useful by the American Indian Oil Gas Company of Poteau is $166,061.80; that is to say that the physical property of the plant in question, including working capital, is $87,597; that the value of the leases is $28,464.80, and the value of the gas wells amount to $50,000, constituting a total of $166,061.80; that the earnings of the company for the year 1923 amount to $36,464; that there is no substantial evidence tending to show that the gas sales for the future will be less than for the year 1923; that the earnings as shown for the year 1923, to wit, $36,464, applied to the value found by the Corporation Commission in Finding No. 1, of $166,061.80, is sufficient and adequate to constitute a reasonable return for the service rendered by the applicant company; that said earnings amount to 21.9% available for interest and depreciation * * * that the present schedule in effect for domestic and industrial purposes * * * should be modified so as to provide a rate as follows, to wit: For the first one hundred thousand cubic feet, 25c per thousand; next two hundred fifty thousand cubic feet, 7 1/2 per thousand; all in excess of three hundred fifty thousand cubic feet, 6c per thousand."
From which order of the Corporation Commission the plaintiff in error prosecutes its appeal to this court.
In determining whether the order of the Corporation Commission fixing the rate in this case should be affirmed, reversed, or modified, it is incumbent upon this court to examine the testimony offered by both sides and from the record in this case determine: First, the value of the property of the plaintiff in error used and useful in the public service; and, second, to ascertain what the operating expenses and gross income of the plaintiff in error are, from which the net income of the plaintiff in error can be determined; and, third, what is a proper return on the investment, taking into consideration the value of the property used by the utility, its operating expenses and its net income. And in order to determine these facts we must of necessity rely upon the evidence introduced by the respective parties as the same appears in the record, and, in doing that, we encounter great difficulty, for the reason that this testimony was furnished on the part of the utility by expert engineers and accountants, whom they hired to inspect the property and make an audit of the books of the company for the purpose of testifying in this case, and upon the other side by the engineers and accountants who made the inspection and audit at the direction of the Corporation Commission, by whom they were employed, in which testimony there is an irreconcilable conflict and unmistakable evidence that however honest and conscientious the witnesses may have been, they *Page 217
were biased in favor of the party for whom they were rendering the service in so testifying. We are much in the same situation that this court was in Western Oklahoma Gas Fuel Co. v. State et al. (decided December 9, 1924, petition for rehearing pending), from which opinion we quote the following statement:
"In this case our greatest trouble in determining the accrued depreciation and present fair value of the property is due to the fact that the evidence consists largely of the opinions of witnesses claiming to be experts upon the subject, and those opinions are so radically divergent as to be entirely incapable of reconciliation. The opinion of the expert upon each side goes to such an extremity in favor of the party for whom he was testifying that as to most of the items we are unwilling to accept the theory of either in arriving at our conclusion."
The property of the plaintiff in error is divided into a distributing system, including a main line from the field to the city of Poteau; and a production system, including leaseholds of some 1,600 acres of land, wells, etc. The engineers for the utility fixed the reproduction cost of the distribution system new, less accrued depreciation, or the present value of the distribution system at, in round numbers, $133,000, including about $14,000 for engineering and superintendence, law expenditures, interest, and miscellaneous expenditures, while the engineers for the Corporation Commission fixed the same, including working capital, in round numbers, at $87,000, denying that the last above items are proper estimates in fixing the present value of the utility.
Witnesses for the plaintiff in error, after inspecting the property, testified as to the cost of reproduction of the plant, including fourteen and one-half (14 1/2) per cent. for so-called overhead expenses, which included items such as interest, injuries, and taxes during construction; they also included engineering fees, legal fees, etc. The witnesses for the Corporation Commission testified that the above-named items were not expended nor incurred in the original construction of the plant.
In Oklahoma Natural Gas Co. v. Corporation Commission,90 Okla. 84, 216 P. 917, the rule for fixing the present value of the property laid down in the first and second paragraphs of the syllabus is as follows:
"The reasonable value of the property of a public utility used and useful in its public service at the time the inquiry is made should be taken as the basis of calculation in determining whether rates fixed by the Corporation Commission constitute a fair compensation for the use of the property, so that the owners are not deprived of their property without due process of law.
"In determining the present fair value of the property of a public utility, neither original cost nor reproduction cost new, considered separately, are determinative, but consideration should be given to both original cost and present reproduction cost, less depreciation, together with all the other facts and circumstances which would have a bearing upon the value of the property, and from a consideration of all these a fair present value is to be determined."
Also in McAlester Gas Coke Co. v. Corporation Commission,102 Okla. 118, 227 P. 83, in the syllabus thereof, this court said:
"In determining the present fair value of the property of a public utility, neither original cost nor reproduction cost new, considered separately, are determinative, but consideration should be given to both original cost and present reproduction cost, less depreciation, together with all the other facts and circumstances which would have a bearing upon the value of the property, and from a consideration of all these a fair present value is to be determined."
In Oklahoma Natural Gas Co. v. Corporation Commission (supra), this court laid down the rule that:
"In a proceeding instituted before the Corporation Commission by a public utility for the purpose of having established a rate to be charged by it for the service rendered, it is incumbent upon such public utility to establish, by competent evidence, the fair and reasonable value of its property used and useful in the public service at the time of the inquiry."
The production system of plaintiff in error consists of some 1,600 acres of leases, with ten or twelve gas wells, upon which the Corporation Commission fixed a total value of, in round numbers, $78,000. Of this valuation plaintiff in error complains, and we find some difficulty in arriving at a conclusion as to a rule in fixing the value of producing gas wells on large acreage that will, in our judgment, be just and equitable to both parties. Evidence was introduced on both sides as to the original cost of the leases, the cost of drilling the wells, and the value of leases on adjoining property, but counsel have not favored us with citations of authorities from this court fixing the rule by which we are to arrive at the value of the production system of the plaintiff in error, and we, therefore, presume that that subject has not heretofore been definitely settled by this court and we *Page 218
must look to other states for authorities on that subject.
In City of Erie v. Public Service Commission, 123 A. 471, the Supreme Court of Pennsylvania laid down the rule that:
"The value of mineral land for rate-making purposes depends primarily on the demand, quantity, cost of production, and price received for the marketed product.
"The value of gas lands for rate-making purposes is not the sale price of a cubic foot of gas as applied to the supposed quantity in a given field, but its value as a whole, or per acre."
In City of Charleston et al. v. Public Service Commission,120 S.E. 398, the Supreme Court of Appeals of West Virginia had under consideration a similar question, and the court quotes the following paragraph from the Commission's opinion:
"Whatever may be the difference of opinion as shown by court and commission decisions as to the ascertainment of fair value for other property of a gas utility, the many elements of uncertainty and speculation that must necessarily enter into all opinions regarding the value of gas leaseholds are so obvious and well-known as to render it manifestly unjust and unreasonable to place any value upon such property in excess of its actual cost."
And the court said:
"Unless the circumstances be exceptional we think this is true, and particularly so in a case like the present, where the applicant is permitted to charge the rentals and taxes necessary to carry the leasehold as an operating expense."
We can conceive of no better rule by which to fix the present value of the production system for rate-making purposes than to take its reasonable market value. This is what the Corporation Commission seems to have done.
Plaintiff in error seeks to place a much higher value on both its producing system and distributing system than the Corporation Commission found, and much is said in briefs and arguments as to the amount of money spent, the plant's value as a going concern, etc., but in view of the fact that the burden, in a measure, is upon plaintiff in error to prove that it is entitled to an increased rate, and further, in view of the fact that the Corporation Commission found that plaintiff in error is receiving a reasonable return on the value of the property as found from the evidence by the Corporation Commission, we are not inclined to disturb the order, although the rate paid by the citizens of Poteau is an unusually low rate and the record shows that the investment had not been a profitable one, but the rate was agreed to when the franchise was voted and the present embarrassment has been brought about by the officers of the company, themselves, and we feel that in equity and good conscience plaintiff in error should continue to furnish the gas at the rate prescribed in the order of the Corporation Commission until such time as it may be able to show by a preponderance of the evidence that a reasonable return cannot, under good management, be earned at such rates.
BRANSON, V.C.J., and HARRISON, MASON, LESTER, HUNT, CLARK, and RILEY, JJ., concur. NICHOLSON, C.J., dissents. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128821/ | 538 U.S. 971
GOINSv.UNITED STATES.
No. 02-9424.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
2
C. A. 6th Cir. Certiorari denied. Reported below: 53 Fed. Appx. 724. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8540807/ | Opinión disidente emitida por el
Juez Asociado Señor Estrella Martínez.
[e\l derecho a [la] pensión de retiro por años de servicio del empleado público tiene un respetable contenido ético y moral y constituye un seguro de dignidad para el hombre o la mujer que habiendo dedicado al servicio público sus años fecundos, no debe encontrarse en la etapa final de su vida en el desamparo, o convertido en carga de parientes o del Estado. (Énfasis suplido). Rosa Resto v. Rodríguez Solís, 111 DPR 89, 92 (1981).
Nuevamente comparecen ante este Tribunal cientos de servidores públicos clamando justicia. Acuden desde los empleados de la Oficina del Contralor que han dedicado sus vidas por más de dos décadas a la lucha contra la corrupción; hasta los policías de mayor veteranía que se encuentran al borde de la edad obligatoria de retiro y se enfrentan a un estatuto que elimina la pensión por mérito, *899reduce drásticamente el importe de la pensión y hasta duplica los años de servicio previo a retirarse.
Hoy todos los trabajadores peticionarios se enfrentan a una ley que menoscaba sustancialmente las obligaciones contraídas por el Estado. Además, se enfrentan a la realidad que revela el antiguo proverbio de que la cuerda triple no se corta fácilmente. En efecto, el hilo del Ejecutivo, el hilo del Legislativo y el hilo de una mayoría de este Tribunal se han entrelazado para crear una soga que, lejos de cortarse, ha estrangulado los derechos de los empleados públicos del Gobierno de Puerto Rico. Ciertamente, la soga no cortó por los más finos, cortó por los más humildes: los asalariados, los trabajadores, los que subsisten de quincena en quincena. Con ello, queda acreditado que las acciones de los componentes de esa cuerda triple han convertido en chatarra las obligaciones contractuales del Estado con los trabajadores y han degradado las garantías constitucionales del Pueblo.
En consecuencia, disiento por entender que la Ley Núm. 3-2013 está plagada de cambios drásticos al Sistema de Retiro que contravienen la Constitución de Puerto Rico. Veamos.
I
A. La See. 7 del Art. II de la Constitución de Puerto Rico garantiza que en nuestro sistema democrático de gobierno “no se apr[ueben] leyes que menoscaben las obligaciones contractuales”. LPRA, Tomo 1, ed. 2008, pág. 296. En iguales términos, la Sec. 10 del Art. I de la Constitución federal establece una prohibición homologa en su naturaleza, la cual veda que los estados de la Unión Americana promulguen estatutos que perjudiquen las relaciones *900contractuales(1) Art. I, Sec. 10, Const. EE. UU., LPRA, Tomo 1.
En términos generales, esta prohibición constitucional impide que los estados y sus gobiernos locales emitan legislación alguna que pretenda atenuar los compromisos de una parte contratante o dificultar irrazonablemente la ejecución de un contrato. 2 Rotunda Nowak, Treatise on Constitutional Law: Substance and Procedure 5th Sec. 15.8(b), pág. 879 (2012). A su vez, la referida cláusula persigue incentivar el crédito y el comercio, promoviendo la confianza en la estabilidad de las relaciones contractuales. U.S. Trust Co. of New York v. New Jersey, 431 US 1, 15 (1977).
En consecución con estos fines, los pronunciamientos jurisprudenciales de esta Curia y del Tribunal Supremo federal han reconocido que esta garantía constitucional impide que el Gobierno incida adversamente sobre dos tipos de obligaciones contractuales: (1) las sostenidas entre partes privadas, y (2) en las que el Gobierno constituya una de las partes contratantes. U.S. Trust Co. of New York v. New Jersey, supra, pág. 17; Domínguez Castro et al. v. E.L.A. I, 178 DPR 1, 80 (2010). Según lo estableceremos más adelante, esta distinción resulta trascendental al momento de seleccionar el escrutinio constitucional que un Tribunal habrá de emplear ante un reclamo incoado al amparo de la cláusula contra el menoscabo de relaciones contractuales. Domínguez Castro et al. v. E.L.A. I, supra, pág. 80. Conscientes de la importancia que conlleva la identificación de una relación contractual como privada o pública en su naturaleza, pasemos a elaborar el marco de análisis aplicable ante una interpelación constitucional erguida sobre la palestra de la protección constitucional bajo examen.
*901Como cuestión de umbral, cuando una parte reclame que el Gobierno, mediante la promulgación de legislación a esos efectos, ha menoscabado una relación contractual, un tribunal deberá determinar si la legislación impugnada realmente tuvo el efecto de perjudicar sustancialmente la alegada obligación contractual.(2) General Motors Corp. v. Romein, 503 US 181, 186 (1992); Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 US 400, 411 (1983); U.S. Trust Co. of New York v. New Jersey, supra, pág. 17. Ello, independientemente de si la relación contractual en disputa resulta ser pública o privada en su naturaleza.
El Más Alto Foro federal ha dividido este primer paso en tres factores adicionales, a saber: (1) si existe una relación contractual; (2) si un cambio legislativo ha menoscabado esa relación contractual, y (3) si el menoscabo infligido es sustantivo en su naturaleza. General Motors Corp. v. Romein, supra, pág. 186. Véanse, también: Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 US 470, 504 (1987); Domínguez Castro et al. v. E.L.A. I, supra, págs. 81-82.
Al emplear el análisis señalado, urge tener presente que la prohibición instaurada en la cláusula constitucional en contra del menoscabo de relaciones contractuales no es absoluta en su naturaleza. Home Bldg. & Loan Ass’n v. Blais*902dell, 290 US 398, 428 (1934) (“[T]he prohibition is not [...] to be read with literal exactness like a mathematical formula”). Véanse, también: Keystone Bituminous Coal Ass’n v. DeBenedictis, supra, pág. 502; Allied Structural Steel Co. v. Spannaus, supra, pág. 240; U.S. Trust Co. of New York v. New Jersey, supra, pág. 21; City of El Paso v. Simmons, 379 US 497, 508 (1965); Warner Lambert Co. v. Tribunal Superior, 101 DPR 378, 394 (1973). A esos efectos, la jurisprudencia federal ha establecido que un Estado puede afectar o modificar el remedio provisto por la relación contractual con la cual interviene, siempre y cuando no menoscabe derechos sustanciales.(3) City of El Paso v. Simmons, supra, pág. 503; Home Bldg. & Loan Ass’n v. Blaisdell, supra, pág. 430.
Es por ello que el Tribunal Supremo federal ha interpretado que la cláusula en contra del menoscabo de obligaciones contractuales debe quedar atemperada de cara al entendimiento de que en todo contrato, el Estado siempre se reserva un residuo de autoridad para poder legislar en consecución de la salud y seguridad pública, al igual que el bienestar general del pueblo. Energy Reserves Group, Inc. v. Kansas Power and Light Co., supra, pág. 410; Allied Structural Steel Co. v. Spannaus; supra, págs. 240-241 (“[T]he Contract Clause cannot obliterate the police powers of the State”); U.S. Trust Co. of New York v. New Jersey, supra, págs. 15-16; City of El Paso v. Simmons, supra, pág. 508 (“the reservation of essential attributes of the sovereign power [are] read into contracts as a postulate of the legal order”); Home Bldg. & Loan Ass’n v. Blaisdell, supra, *903págs. 434-440; Warner Lambert Co. v. Tribunal Superior, supra, pág. 394. Respecto a la deferencia que un Tribunal viene llamado a otorgarle al ejercicio de ese residuo de poder por parte del Estado, amerita traer a memoria la bifurcación de contratos señalada, enfocando nuestra mirada, primeramente, sobre los contractos de naturaleza privada.
Cuando el contrato afectado es de carácter privado, los tribunales estamos llamados a otorgarle amplia discreción en tomo a lo que la Legislatura entiende que es o no resulta ser necesario para el bienestar general. City of El Paso v. Simmons, supra, pág. 508; U.S. Trust Co. of New York v. New Jersey, supra, pág. 16. No obstante, esa deferencia no es irrestricta o carente de fronteras. City of El Paso v. Simmons, supra, pág. 509; Warner Lambert Co. v. Tribunal Superior, supra, pág. 394. Ante el choque de los intereses del Estado en el ejercicio de su poder inherente como soberano y los intereses de las partes contratantes en que sus acuerdos no sufran un peijuicio sustancial legislativamente infundido, es función del Tribunal servir como ente reconciliador. U.S. Trust Co. of New York v. New Jersey, supra, pág. 21.
El Tribunal Supremo federal afirmó lo anterior en los siguientes términos:
Whatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the state to adopt as its policy the repudiation of debts or the destruction of contracts or the. denial of the means to enforce them. (Énfasis suplido). City of El Paso v. Simmons, supra, pág. 509.
Lo anterior se debe a que, de lo contrario, la cláusula en contra del menoscabo de relaciones contractuales sería letra muerta y quedaría desprovista de significado constitucional alguno. Allied Structural Steel Co. v. Spannaus, su*904pra, pág. 241 (“[T]he Contract Clause remains part of the Constitution. It is not a dead letter”); U.S. Trust Co. of New York v. New Jersey, supra, pág. 16 (“Whether or not the protection of contract rights comports with current views of wise public policy, the Contract Clause remains a part of our written Constitution”).
En función de ello, el Tribunal debe tener presente que la garantía constitucional señalada limita ejercicios legítimos de legislación estatal y que la existencia de un interés público importante no siempre será suficiente para contravenir tal limitación. Keystone Bituminous Coal Ass’n v. De-Benedictis, supra, pág. 505; Allied Structural Steel Co. v. Spannaus, supra, pág. 242 (“If the Contract Clause is to retain any meaning at all, [...] it must be understood to impose some limits upon the power of a State to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power”); U.S. Trust Co. of New York v. New Jersey, supra, pág. 21 (“private contracts are not subject to unlimited modification under the police power”).
A la luz de lo reseñado, una legislación que pretenda afectar relaciones contractuales existentes, privadas en su naturaleza, debe responder a un interés público legítimo y significante.(4) Energy Reserves Group, Inc. v. Kansas Power and Light Co., supra, págs. 411-412; U.S. Trust Co. of New York v. New Jersey, supra, pág. 22; Domínguez Castro v. E.L.A. I, supra, pág. 84. Además, la legislación lesiva a los derechos y las responsabilidades de las partes contratantes debe ser razonable y necesaria. Allied Structural Steel Co. v. Spannaus, supra, págs. 244 y 247; U.S. Trust Co. of New York v. New Jersey, supra, pág. 22; Domínguez Castro v. E.L.A. I, supra, pág. 84. Como norma general, los tribunales le otorgarán deferencia al Estado respecto a la *905razonabilidad y necesidad de la legislación impugnada. Domínguez Castro v. E.L.A. I, supra, págs. 22-23.
Ahora bien, esta deferencia se limita estrictamente al análisis de contratos de carácter privado. Ello, pues, cuando la relación contractual menoscabada es pública en su naturaleza y el Estado constituye una de las partes contratantes, existen consideraciones adicionales que exigen un criterio de adjudicación constitucional mucho más oneroso para el Gobierno. U.S. Trust Co. of New York v. New Jersey, supra, pág. 23; Domínguez Castro v. E.L.A. I, supra, pág. 81. En primer lugar, será imperativo examinar si los derechos contractuales reconocidos por el Estado no representan un ejercicio ilegítimo de sus atributos esenciales como soberano. Específicamente, habrá que examinar si la legislatura contratante cedió poderes que vinculan indebidamente a las legislaturas futuras y sucesivas. U.S. Trust Co. of New York v. New Jersey, supra, pág. 23.
A esos fines, ya se ha determinado que el Estado tiene el poder de incurrir en compromisos financieros futuros con partes privadas. U.S. Trust Co. of New York v. New Jersey, supra, pág. 24. Una vez se crean estos compromisos financieros, el Estado viene obligado a satisfacerlos. Id. Aunque ciertamente el Gobierno puede modificar la obligación contractual incurrida mediante la promulgación de legislación, tal menoscabo sobrevivirá un examen constitucional solo si es necesario y razonable. Id., págs. 25—26.
En ese análisis, el Tribunal debe tener presente que el Estado velará por sus propios intereses. Por ello, y distinto al análisis empleado para relaciones contractuales de carácter privado, el Tribunal no puede conferirle deferencia al juicio de la legislatura respecto a qué representa una medida razonable y necesaria. Keystone Bituminous Coal Ass’n v. DeBenedictis, supra, pág. 505; Energy Reserves Group, Inc. v. Kansas Power and Light Co., supra, pág. 412 (“Unless the State itself is a contracting party, as is customary in reviewing economic and social regulations, courts *906properly defer to legislative judgments as to the necessity and reasonableness of a particular measure”) (énfasis suplido); U.S. Trust Co. of New York v. New Jersey, supra, pág. 26 (“[C]omplete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake [...] If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all”). (Enfasis suplido).
Por lo tanto, en su análisis de lo que constituye una medida necesaria, el Tribunal debe emplear un examen consistente de dos criterios. Primero, una medida no es necesaria si imparte una eliminación total de la relación contractual menoscabada, cuando existía la posibilidad de instaurar una modificación menos drástica en su naturaleza. U.S. Trust Co. of New York v. New Jersey, supra, págs. 29-30. En segundo plano, una medida no es necesaria si existieron medios alternos para alcanzar el interés público articulado por el Estado.(5) Id., pág. 30; Domínguez Castro et al. v. E.L.A. I, supra, pág. 84.
En consecuencia, la selección de política pública realizada por el Poder Legislativo entre las muchas alternativas disponibles, no merece entera deferencia. Domínguez Castro v. E.L.A. I, supra, pág. 84. Como bien lo indicó el Tribunal Supremo federal, “a State is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives. Similarly, a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purpose equally *907well”. (Énfasis suplido). U.S. Trust Co. v. New Jersey, supra, págs. 30-31.
Respecto al criterio de razonabilidad, el Tribunal deberá valerse de un examen de previsibilidad a la luz de todas las circunstancias cambiantes. Véanse: Energy Reserves Group, Inc. v. Kansas Power and Light Co., supra, págs. 415-416; City of El Paso v. Simmons, supra, pág. 511. A esos efectos, una legislación que menoscabe relaciones contractuales será razonable solo si los efectos que se pretenden mitigar no fueron previstos o intencionados por el Estado al momento en el cual contrajo la obligación afectada. U.S. Trust Co. of New York v. New Jersey, supra, pág. 31. Un cambio no previsto será aquel que ocurra en el tipo del efecto, mas no en el grado de este. Id., pág. 32. (“subsequent changes [...] of degree and not of kind”).
Finalmente, amerita añadir que, como parte del análisis concerniente a la razonabilidad y necesidad de una medida, resulta imperativo examinar si son temporeras y dirigidas a atender una situación pública de emergencia, social o económica en su naturaleza. Domínguez Castro et al. v. E.L.A. I, supra, pág. 85. Si estos criterios adicionales no están presentes, urge inclinar la balanza en favor de la protección de la relación contractual menoscabada. Allied Structural Steel Co. v. Spannaus, supra, pág. 250.
Teniendo presente los principios generales aplicables a todo reclamo instado al amparo de la cláusula constitucional en contra del menoscabo de relaciones contractuales, pasemos a particularizarlos en el contexto de los planes públicos de retiro.
B. Por más de dos décadas, esta Curia ha reconocido que las participaciones de un empleado público en el sistema de retiro del gobierno constituyen “un interés propietario de naturaleza contractual protegido por la garantía constitucional contra el menoscabo de obligaciones contractuales”. (Énfasis suprimido). Bayrón Toro v. Serra, 119 DPR 605, 607-608 (1987). En concreto, hemos estable*908cido, sin lugar a ambigüedades, que los planes de retiro son contratos públicos, mediante los cuales existe un “acuerdo de voluntades entre el Estado y el empleado, dirigido a producir un efecto vinculante para las partes”. (Énfasis suplido). Id., pág. 618.
Por un lado, la relación contractual acordada beneficia al Estado en su esfuerzo por reclutar y retener personal de alta calidad para el bien común del pueblo puertorriqueño. Bayrón Toro v. Serra, supra, pág. 615. Solo ofreciendo un atractivo plan de retiro, es que el Gobierno logra “atraer personal competente, que de otra forma ofrecería sus servicios a la empresa privada”. Id., pág. 616.
Por otra parte, el empleado público acepta la encomienda de servir a sus conciudadanos a cambio de este beneficio “de considerable importancia”, el cual “significa una fuente de ingreso futuro, que le permitirá disfrutar de su vejez con razonable seguridad económica”. (Énfasis suplido). Bayrón Toro v. Serra, supra, pág. 616. “Es indiscutible que cuando alguien acepta una oferta de empleo toma en consideración y descansa en la seguridad que le brinda el sistema de retiro”, convirtiéndose los términos y las condiciones de este beneficio en una “parte esencial de su contrato de empleo”. (Énfasis suplido). Id., págs. 616-617.
Reconociendo esta naturaleza contractual del plan de retiro gubernamental, hemos extirpado de nuestro ordenamiento legal la concepción anacrónica y retrógrada “de que las pensiones son [meras] concesiones o dádivas del Gobierno, y que un empleado participante [que aporta compulsoriamente a las mismas] no adquiere derecho alguno sobre” ellas. Bayrón Toro v. Serra, supra, pág. 610. A raíz de lo anterior, nuestra conceptualización de los planes de retiro en el plano legal, ha venido a descansar sobre el entendimiento certero de que “con el advenimiento de las democracias populares y la desaparición de los regímenes monárquicos, el fundamento jurídico de la pensión no lo *909constituye un acto de recompensa del soberano, sino una obligación moral del Estado”. (Enfasis suplido). Id., pág. 615, citando a Rivera v. Rodríguez, 93 DPR 21, 24 (1966).
Tal obligación persigue reconocer el principio indeleble de que las pensiones constituyen “una retribución final y bien ganada por el empleado público que honrando una vocación de servicio, que en muchas ocasiones conlleva sacrificio y renuncia de bienes materiales, dedica los años fructíferos de su vida al bien común”. (Enfasis suplido). Bayrón v. Serra, supra, pág. 615, citando a Sánchez Nieves v. A.S.R.E.G.J., 116 DPR 372 (1985); Román Mayol v. Tribunal Superior, 101 DPR 807, 811 (1973); Maldonado v. Tribunal Superior, 100 DPR 370 (1972). Cónsono con lo anterior, hemos pautado que “[e]l derecho a [la] pensión de retiro por años de servicio [...] tiene un respetable contenido ético y moral y constituye un seguro de dignidad para el hombre o la mujer que habiendo dedicado al servicio público sus años más fecundos, no debe encontrarse en la etapa final de su vida en el desamparo o convertido en carga de parientes o del Estado”. (Enfasis suplido). Bayrón Toro v. Serra, supra, pág. 616.
Ante la importancia trascendental de este beneficio contractual de carácter público, en Bayrón Toro v. Serra, supra, pág. 618, fuimos prontos en concluir, categóricamente, que “los participantes [del] Sistema de Retiro del Gobierno tienen un derecho adquirido de naturaleza contractual que surge con el ingreso del empleado al sistema, independientemente de que la participación sea voluntaria o compulsoria”. (Enfasis suplido). A su vez, explícitamente reconocimos dos dimensiones de este derecho adquirido: (1) la dimensión del pensionado ya retirado, y (2) la dimensión del participante de la pensión, quien aún está pendiente por retirarse.
A la primera de estas dimensiones le conferimos una protección absoluta a la luz de la cláusula en contra del menoscabo de obligaciones contractuales. Es por ello que *910establecimos que “[u]na vez el empleado se ha retirado [...], su pensión no está sujeta a cambios o menoscabos”. (Enfasis suplido). Bayrón Toro v. Serra, supra, pág. 618. Véanse, también: Rodríguez v. Retiro, 159 DPR 467, 474 y 477 (2003); Calderón v. Adm. Sistemas de Retiro, 129 DPR 1020, 1032 (1992) (“La Asamblea Legislativa no tiene facultad para menoscabar ese derecho adquirido de naturaleza contractual”). Respecto a la segunda dimensión del derecho adquirido bajo examen, aseveramos lo siguiente: “antes de que [un participante] pueda acogerse a la jubilación, los términos del sistema de retiro pueden ser enmendados por el Gobierno siempre que las enmiendas sean razonables y con el fin de adelantar” un fin importante del Estado. (Enfasis suplido). Bayrón Toro v. Serra, supra, pág. 618.
De tal manera, nuestras expresiones reconocieron que los términos del sistema de retiro pueden ser enmendados cuando el participante aún no se haya retirado. A esos efectos, también dispusimos que el aumento de la edad mínima para que un participante cualifique para el retiro; la reducción del importe de la pensión que recibirá el participante una vez se retire, y el aumento de la cantidad que un participante deberá aportar al fondo del retiro, constituyen, como mínimo, un menoscabo lo suficientemente severo como para que la cláusula constitucional en contra del perjuicio de obligaciones contractuales quede activada. Bayrón Toro v. Serra, supra, págs. 608-609 y 621-622.
A la luz de lo anterior, y adoptando los pronunciamientos del Tribunal Supremo federal en el ámbito de la garantía constitucional indicada, fuimos precisos en indicar que cuando una garantía contractual como esta quedaba menoscabada severamente por causa de las modificaciones señaladas, tal peijuicio solo quedaría justificado si el Estado sustentaba que la legislación promulgada a esos fines adelanta un fin público importante y que la modificación al *911plan de retiro resulta ser razonable y necesaria. Bayrón Toro v. Serra, supra, pág. 621. Sostuvimos el requerimiento de que la modificación sea necesaria, además de razonable, en el entendimiento de que, cuando se trata de un contrato público en el cual el Gobierno es parte, el escrutinio judicial que se ha de emplear “debe ser más cuidadoso para asegurar que la actuación del Estado no sólo sea en beneficio propio”. Id., pág. 620.
No obstante, a pesar de reconocer la exigencia de que el menoscabo de relaciones contractuales públicas requiere un escrutinio judicial más oneroso para el Estado, en el cual se evalúe si las modificaciones impuestas a los participantes no retirados del fondo de retiro público son necesarias y razonables, guardamos total silencio respecto al significado de aquello que constituye una modificación necesaria y razonable, según el Más Alto Foro federal ya había definido tales conceptos.
Así, nuestro caso normativo en esta materia omite distinguir lo que ya hemos explicado, a saber: (1) que una modificación a un plan de retiro será necesaria solo si no existen medidas alternas para alcanzar el fin público proferido por el Estado, y (2) que tal medida será razonable, solo si los efectos que se pretenden mitigar no fueron previstos o intencionados por el Estado al momento en el cual contrajo con sus empleados públicos los beneficios de retiro afectados.
Ante tal omisión, urge que hoy interpretemos nuestros pronunciamientos en Bayrón Toro v. Serra, supra, a la luz de estas consideraciones adicionales, las cuales ya estaban plasmadas en la normativa del Tribunal Supremo de EE. UU. al momento de emitirse esa opinión, y que constituyen la protección mínima garantizada por la Constitución federal. Además, en esa faena hermenéutica, está vedado olvidar que “las leyes que crean derechos al disfrute de pensiones se deben interpretar liberalmente a favor del *912beneficiario [,] a fin de que se cumpla el propósito reparador para las cuales fueron aprobadas”. Calderón v. Adm. Sistemas de Retiro, supra, pág. 1034.
Habiendo expuesto el marco jurídico aplicable a la controversia que nos atañe, pasemos a repasar las incidencias históricas, económicas y legislativas que han conducido al estado actual del plan de retiro de los empleados públicos del Gobierno de Puerto Rico.
II
A. El Sistema de Retiro de los Empleados del Gobierno de Puerto Rico se creó con el propósito de proveer seguridad económica a sus empleados a través del pago de una pensión vitalicia. Al 30 de junio de 2011, el Sistema de Retiro tenía un total de 135,972 participantes activos. Estos se distribuyen en 30,057, 50,346 y 55,569 empleados participantes de la Ley Núm. 447 de 15 de mayo de 1951 (3 LPRA see. 761 et seq.) (Ley Núm. 447), la Ley Núm. 1 de 16 de febrero de 1990 (3 LPRA sec. 766b et seq.) (Ley Núm. 1), y la Ley Núm. 305-1999 (3 LPRA see. 761 et seq.) (Reforma 2000), respectivamente. Además, existen 79,177 y 4,239 retirados para la Ley Núm. 447 y la Ley Núm. 1, respectivamente. Véase Valorización Actuarial del Sistema de Retiro al 30 de junio de 2011, Milliman, Wayne, PA.
Mediante el referido sistema, se pretende asegurar el ingreso de los pensionados para que se ajuste a las necesidades y al nivel de vida de cada uno de ellos, a la vez que se promueve la retención de recursos idóneos en el sector público. Con estos propósitos, se creó un fideicomiso conocido como el Sistema de Retiro mediante la Ley Núm. 447, en el que se estableció como edad promedio de retiro los 55 años de edad con veinticinco años de servicio. De esta forma, se sustituyeron los fondos de pensiones existentes mediante la Ley Núm. 70 de 3 de mayo de 1931 (3 LPRA see. 762 n.) (Cuerpo de la Policía Insular), la Ley Núm. 23 *913de 16 de julio de 1935 (3 LPRA see. 762 n.) (funcionarios permanentes del Gobierno de Puerto Rico) y la Ley Núm. 155 de 9 de mayo de 1938 (3 LPRA see. 762 n.) (pensiones a las viudas de los policías que perdían su vida en funciones de su deber). En consecuencia, desde la creación del fideicomiso, el sistema comenzó con un déficit actuarial que el Estado estaba obligado a amortizar en un periodo de treinta años. Este compromiso no se cumplió. Así, el Estado sabía de antemano el deber que tenía para asegurar los compromisos contraídos con sus servidores públicos.(6)
Un déficit actuarial se crea cuando se otorgan beneficios mayores a los activos que posee el sistema de retiro. Por ende, resulta elemental que un déficit actuarial incrementa por ciertas razones principales, a saber: (1) la falta de aportaciones recurrentes al sistema; (2) el aumento de obligaciones, producto de un mayor número de beneficiarios no contemplados en su implementación, y (3) el rendimiento inadecuado de las proyecciones. Ante el panorama de todas estas circunstancias, los actuarios y otros alertaron al Estado sobre la falta de solvencia económica del Sistema de Retiro creado.(7) A su vez, hicieron hincapié en la obligación que tiene el Estado para realizar asignaciones anuales para cumplir con los compromisos contraídos. El Estado no encaró oportunamente los problemas señalados.
Para la década de los ochenta, la divulgación de la información fluyó y creó consternación sobre el futuro del fondo de retiro. Ello abonó a la incertidumbre respecto a si *914los empleados públicos contarían con un sistema de retiro que atendiera sus necesidades. Nuevamente, el Estado se mostró indiferente. Mediante sus actuaciones continuó presentando medidas legislativas para aumentar los beneficios, incrementar los beneficiados y procedió con dejadez en el análisis de las necesidades para atender el déficit actuarial anunciado. Como consecuencia, el déficit actuarial ascendió a los $2.8 billones.(8)
La falta de acción provocó el crecimiento acelerado del déficit actuarial. Para una idea de la magnitud de las repercusiones, exponemos que al 30 de junio de 2011, el déficit actuarial ascendía a $23.7 billones para un total de $4.8 billones adicionales al 2009. No cabe duda que esto representa un problema que requiere ser atendido con extrema prontitud. Sin embargo, conforme a la propia Administración de los Sistemas de Retiro, el déficit actuarial surge desde el origen de la creación del fideicomiso, pero este no impediría la operación del sistema siempre que se pueda alcanzar un equilibrio actuarial. De esta forma, la Administración de los Sistemas de Retiro manifiesta que para lograr el equilibrio actuarial es necesario que el flujo de fondos provenientes de las aportaciones más el rendimiento de los activos sea adecuado para cubrir las obligaciones contraídas por el sistema. Según esa condición, el déficit actuarial no constituye un problema inmediato, ya que este únicamente se activa en caso de que se liquide el Sistema de Retiro. Véase Informe Final de 29 de junio de 2012 de la Comisión de los Sistemas de Retiro del Servicio Público de la Cámara de Representantes de Puerto Rico sobre la R. de la C. 283, 7ma. Sesión Ordinaria, 16ta Asamblea Legislativa, págs. 2-4.
La Administración de los Sistemas de Retiro sugiere concentrarse en un problema principal del Sistema de Re-tiro constituido por la falta de flujo de efectivo. Esta falta de dinero en caja afecta directa y recurrentemente el pago *915de las obligaciones contraídas por el Estado con sus empleados públicos y pensionados. Claro está, el enfoque ex-clusivo de atender la necesidad del flujo de efectivo, sin un plan en que se capitalicen los activos del sistema, resultaría en la crónica de una muerte anunciada.
El déficit de flujo de efectivo del Sistema de Retiro de los Empleados de Gobierno ascendió de 2008 a 2009 a $380 millones cuando de 2007 a 2008 era de $240 millones. De otra parte, el Banco Gubernamental de Fomento estima que el déficit del Sistema de Retiro tendrá un impacto en el Fondo General de aproximadamente $900 millones anuales por los próximos veinticinco años.(9) El flujo negativo de caja agotará los activos del Sistema de Retiro para el 2014.(10)
El déficit en el flujo de efectivo responde, en gran medida, a que las aportaciones individuales y patronales son insuficientes para mantener los beneficios concedidos y a las gracias adicionales otorgadas sin la debida identificación de fondos para sufragarlas. Básicamente, el Sistema de Retiro se nutre de estas aportaciones. Igualmente, era de esperarse un crecimiento significativo del déficit en caja, según incrementaran los beneficiarios mediante la Ley Núm. 447 y la Ley Núm. l.(11)
A pesar de la insuficiencia de efectivo para cumplir con las obligaciones contraídas, el Estado procedió a inyectar *916sumas no recurrentes para tratar de aminorar el impacto. Entre estas medidas, el Estado procedió a la venta de acciones de la Puerto Rico Telephone Company, la venta de activos del Sistema de Retiro, la adquisición de préstamos millonarios y la emisión desmedida de bonos. En este último caso, lejos de actuar con prudencia, el Estado emitió bonos de $3,000 millones que ocasionaron pérdidas al Sistema de Retiro. Por medio de esta emisión se crearon unas expectativas de rendimiento de 11%, las cuales resultaron únicamente en un ínfimo rendimiento real de 4.4% para cumplir con la obligación generada para con los bonistas de 6.6%. En 2008, la emisión de bonos alcanzó los $937 millones, los cuales para 2009 se habían convertido en tan solo $837 millones. No tan solo el rendimiento de estas emisiones de bonos fue muy por debajo de lo esperado, sino que el Estado prestó como colateral al pago de la deuda las aportaciones patronales, previamente comprometidas para el pago a nuestros pensionados. El resultado obtenido agravó aún más el Sistema de Retiro. Véanse: Primer Informe Parcial de 30 de junio de 2011 de la Comisión de los Sistemas de Retiro del Servicio Público de la Cámara de Representantes de Puerto Rico sobre la R. de la C. 417, 5ta Sesión Ordinaria, 16ta Asamblea Legislativa; Segundo Informe Parcial de 7 de octubre de 2011 de la Comisión de los Sistemas de Retiro del Servicio Público de la Cámara de Representantes de Puerto Rico sobre la R. de la C. 417, 6ta Sesión Ordinaria, 16ta Asamblea Legislativa; Tercer Informe de 30 de junio de 2012 de la Comisión de los Sistemas de Retiro del Servicio Público de la Cámara de Representantes de Puerto Rico sobre la R. de la C. 417, 7ma Sesión Ordinaria, 16ta Asamblea Legislativa.
La vorágine se acrecienta con las acciones y omisiones exclusivas del Estado, las cuales contribuyen a un mayor déficit que afecta a los miles de empleados públicos obligados a depender de este sistema para poder vivir digna*917mente luego de una jomada de arduo trabajo. Para señalar solo algunas de las irrazonables actuaciones realizadas por el Estado, identificamos las siguientes: (1) el pago no subsidiado de leyes especiales;(12) (2) la extensión de beneficios a los cónyuges e hijos de los participantes;(13) (3) el aumento de aportaciones a los gastos fúnebres;(14) (4) la cantidad de préstamos concedidos a los miembros del sistema, que en el 2011 era de $1,275 millones, equivalente a un 37% del portfolio de inversiones;(15) (5) la falta y dejadez en el cobro de aportaciones patronales a los patronos morosos y a los municipios;(16) (6) la falta de cobro de deudas por el pago de leyes especiales y otros beneficios legislados que deben sufragar los municipios y las corporaciones públicas; *918(7) la falta de cobro de intereses;(17) (8) la falta de aumento en el pago de las aportaciones patronales e individuales; (9) el aumento de pensionados (incluye las ventanas de re-tiro);(18) (10) el incremento porcentual en las pensiones sin *919identificar la procedencia de fondos para su pago;(19) (11) el aumento de los salarios de los empleados antes del retiro; (12) el pago de pensiones sin revisar si estas proceden porque los beneficiarios hayan fallecido;(20) (13) la alta incidencia de participantes que se acogieron al sistema por incapacidad; (14) el cambio de expectativa de vida de los participantes del sistema sin que se tomaran previsiones a tales efectos; (15) las pensiones por mérito,(21) y (16) las inversiones mal estructuradas en la emisión de bonos, entre otras.(22)
*920Todas estas razones eran conocidas por el Estado. Tan es así, que sirvieron de base para la Exposición de Motivos de la Ley Núm. 3-2013. Expresamente, el Estado señala que el Sistema de Retiro se afectó por las aportaciones inadecuadas que no estaban pareadas con los beneficios que se recibirían y la falta de proyección de los cambios económicos o actuariales que afectan a estos. Asimismo, el propio Estado destaca que una serie de leyes aprobadas entre 1960 y el presente debilitaron las finanzas, al aumentar los beneficios sin contar con aportaciones adicionales y sin que el propio Gobierno hiciera la aportación recomendada por los actuarios para cubrir los beneficios del retiro. De igual forma, el Estado reconoce el impacto de las leyes especiales —bonos de verano, para medicamentos, aguinaldo de Navidad, aportaciones a planes médicos, pensiones mínimas, beneficios por muerte o incapacidad y ajustes por el costo de vida— que fueron concedidos sin que los responsables por tal pago —el mismo gobierno, las corporaciones públicas y los municipios— remitieran el pago correspondiente.
El propio Estado admite que los programas de retiro temprano para reducir la plantilla laboral tuvieron el efecto de reducir los ingresos al Sistema de Retiro. Todo ello, unido a los cambios en la expectativa de vida de los participantes y los programas de préstamos personales, hipotecarios y de viajes culturales conferidos a los beneficiados, tuvieron un efecto de quebranto en la salud del Sis*921tema de Retiro. En cuanto a la emisión de bonos, el Estado reconoce que no fue realizada conforme al patrón seguido por otras jurisdicciones, que asignaron una fuente de pago externa para pagar el servicio de la deuda. Por el contrario, y para agravar la situación del fideicomiso, en Puerto Rico la emisión se estructuró como una deuda del mismo Sistema, en donde las aportaciones patronales sirvieron como fuente de repago de los bonos. Como consecuencia de esta emisión, el Sistema de Retiro está obligado a pagar alrededor de $6,000 millones en intereses, más el principal de $3,000 millones con las aportaciones al fondo de retiro, que son la única fuente de ingreso para el pago de los beneficios a los pensionados. Véase la Exposición de Motivos de la Ley Núm. 3-2013, págs. 5-8.
Por otra parte, en un intento incompleto por atender la crisis, el Estado aprobó legislaciones dirigidas a aumentar la capacidad de inversión del Sistema de Retiro.(23) Además, para responder con el pago de pensiones futuras y mantener la solvencia del Sistema de Retiro, el Estado realizó cambios a la estructura del referido fideicomiso mediante la aprobación de la Ley Núm. 1 de 26 de febrero de 1990 y la Ley Núm. 305-1999 (Reforma 2000).
Mediante la Ley Núm. 1, se aumentaron las aportaciones patronales (9.275%) e individuales (8.275%) para los empleados que ingresaron posterior al 1 de abril de 1990. No obstante, y advertido de ello, el Estado declinó aumentar las aportaciones a los servidores públicos cobijados por la Ley Núm. 447. De igual forma, se estableció que: (1) la retribución promedio sería a base de los últimos cinco años de servicios; (2) la edad normal de retiro aumentó a los 65 años de edad; (3) las aportaciones patronales e individuales se remitirían en un término determinado, y (4) se requirió la realización de estudios actuariales antes de adoptarse cualquier medida que liberalizara fondos.
*922Luego, y ante la insuficiencia de las medidas, se aprobó la Reforma 2000 para cerrar el Sistema de . Retiro y crear un Plan de Ahorros para el Retiro que beneficiara a los empleados que ingresen al gobierno a partir del 1 de enero de 2000. Mediante la Reforma 2000, los empleados públicos no recibían beneficios definidos, sino el rendimiento de sus ahorros en el sistema a los sesenta años de edad. Además, la aportación patronal que se hiciera para los participantes de la Reforma 2000 se utilizaría para sanear el déficit actuarial del antiguo sistema. A su vez, se eliminó el beneficio por incapacidad, no se garantizaron los beneficios al final de la jornada y el empleado quedó obligado a pagar un 25% de sus ganancias al Sistema para la administración de sus fondos.
Posteriormente, en el 2001 se presentaron varios proyectos con el fin de atemperar el quebranto del Sistema de Retiro. A pesar de ello, el Estado desatendió muchas de las medidas y declinó otras. Con sus acciones, aventajó los ingresos al Fondo General sobre los ingresos necesitados por el Sistema de Retiro. A modo de ejemplo, el 17 de abril de 2001, se presentó el P. de la C. 966 en el que se propuso destinar bianualmente 1% del monto total de las rentas anuales del Estado Libre Asociado al Sistema de Retiro para que fuera invertido y su rédito distribuido en los beneficiarios del Sistema. Este proyecto no fue aprobado por el impacto en el fondo general.
Más tarde, en el 2005 se presentó el P. del S. 476 con el fin de autorizar una emisión de bonos para financiar $2,000 millones para el Sistema de Retiro. Además, proponía un aumento en las aportaciones patronales e individuales. A pesar de que el P. del S. 476 contó con un informe positivo de la Comisión de Hacienda de la Cámara de Representantes, nunca fue llevado a votación en el pleno de la Cámara. Durante el 2009 hubo un nuevo intento de aumentar las aportaciones patronales —en específico las del Sistema de Retiro para Maestros— que tam*923poco fue evaluado. También quedó pendiente en el 2010 un plan de reorganización para integrar los sistemas de retiro y crear una Junta de Síndicos. Otro intento en el 2012 para ingresar fondos al sistema lo fue el P. de la C. 4059, en el que se propuso requerir que las contribuciones sobre ingresos pagadas, en tomo a las pensiones recibidas del Sistema de Retiro de Empleados del Gobierno de Puerto Rico, sean depositados en el fondo de retiro, a fin de allegarle fondos adicionales al sistema. La medida también quedó engavetada.
Más tarde en el 2012 se presentó el P. del S. 2509 a los fines de crear la “Pega Dominical” como un sorteo para reforzar las finanzas del Sistema de Retiro y crear un fondo especial para cubrir el déficit actuarial. El proyecto tampoco fue evaluado por la Comisión. Lo mismo ocurrió con el P. de la C. 3918, presentado en el 2012 a los fines de proveer un sistema de sorteo electrónico desde la computadora personal y asignar esos fondos al Sistema de Retiro. Sin embargo, el Estado acaba de duplicar determinados sorteos de juegos de azar, cuyos ingresos no están destinados al Sistema de Retiro.
Independiente a ello, el Estado promulgó la Ley Núm. 96-2011 (3 LPRA sec. 1914a) para inyectar $162 millones en bonos con la esperanza de recibir $1,200 millones en un periodo no mayor de 40 años. Por otro lado, la Ley Núm. 114-2011 aumentó la aportación patronal para el fondo del sistema de retiro de maestros. También, la Ley Núm. 116-2011 validó una nueva enmienda al Sistema de Retiro. La pieza legislativa original contemplaba las propuestas de cambio siguientes, las cuales no fueron adoptadas: (1) que se aumentaran a los alcaldes los requisitos para ser acreedores del sistema; (2) el aumento de aportaciones individuales y la revisión periódica de estas; (3) la limitación del gravamen para la adquisición del empréstito, y (4) un término para el recobro de las deudas acumuladas por aportaciones al Sistema de Retiro. Ninguna de estas propues*924tas fue avalada. Solamente, se validaron en esa ley las modificaciones parciales siguientes: (1) el incluir como miembros de la matrícula a los empleados transitorios; (2) aumentar las aportaciones patronales; (3) acoger la aprobación mediante certificación de deuda por parte del Sistema de Retiro al Centro de Recaudaciones sobre Impuestos Municipales o el Departamento de Hacienda, y (4) la imposición de criterios rígidos para conceder activos en garantías. A su vez, mediante la Ley Núm. 156-2011 (3 LPRA sees. 766 y 766d) y la Ley Núm. 196-2011 (3 LPRA sees. 785, 785a y 779a), se modificó la cartera de préstamos del sistema y el ingreso de las cooperativas en este programa. A pesar de ello, las medidas aprobadas en el 2011 no tendrán un impacto significativo en las finanzas del sistema. Véase Sistema de Retiro de los Empleados del Gobierno, Origen, déficit actuarial y recomendaciones, Comisión Especial Permanente sobre los Sistemas de Retiro, enero 2013, Vol. 3.
Ante este cuadro, desoyendo el reclamo de varios sectores y carente de información actuarial para valorizar las modificaciones, el Estado aprueba a la ligera la Ley Núm. 3-2013.(24)
B. Ante ello, es nuestro deber identificar el abanico de propuestas y recomendaciones que el Estado tiene ante sí, previo a recurrir e imponer sobre los servidores públicos todos los cambios drásticos incorporados con la aprobación de la Ley Núm. 3-2013. Veamos las alternativas disponibles que son menos drásticas y razonables.
*925En cuanto a las propuestas presentadas por los miembros de la Cámara de Representantes y del Senado, destacamos las que facilitan fondos recurrentes al Sistema de Retiro.(25) Revisemos.
Entre las opciones que tiene el Estado se encuentran un sinnúmero de proyectos presentados por la Cámara de Representantes con el fin de atender el problema del Sistema de Retiro. Realzamos los siguientes: (1) el R de la C. 786, que pretende crear la Ley de Justicia Tarifaria y Rescate del Sistema de Retiro de Puerto Rico, mediante la cual se propone la distribución al Sistema de Retiro del exceso de recaudos de $1,800 millones de la imposición fija del arbitrio especial a las entidades foráneas; (2) el P. de la C. 868, que propone la Ley de Juegos al Azar con el fin de transferir fondos de los ingresos brutos generados por las máquinas tragamonedas; (3) el P. de la C. 917, que promueve transferir de la Contribución Mínima Tentativa un porcentaje determinado al Sistema de Retiro; se estima que esta iniciativa podría redundar en $150 millones anuales; (4) el P. de la C. 922, que procura disponer que el 1% del arbitrio a la adquisición de cierta propiedad mueble y servicios se destine al Sistema de Retiro; (5) el P. de la C. 925, que propone un aumento en la aportación patronal al Sistema de Retiro y aumenta el tiempo de servicio y la edad de retiro para que los alcaldes puedan beneficiarse del programa; (6) el P. de la C. 926, que persigue eliminar la exención contributiva a los espíritus destilados u otras bebidas alcohólicas para asignar ese recaudo al Sistema de Retiro; se estima que la medida recaudaría $180,000,000; (7) el P. de la C. 981, que enmendaría la Ley de la Lotería de Puerto Rico y asignaría $10,000,000 al Sistema de Retiro; *926(8) el P. de la C. 997, que establece una contribución especial a las cooperativas de ahorro y crédito, subsidiarias y afiliadas para el fondo del retiro de los maestros, y (9) el P. de la C. 1045, que provee para descontar las deudas de ciertas remesas al Sistema de Retiro, lo cual resultaría en una inyección inmediata de $60,542,036.
De otra parte, los proyectos presentados por el Senado como opciones para atender la referida crisis son los siguientes: (1) el P. del S. 23, que persigue crear la “Pega Dominical”, cuyos fondos serían destinados a reforzar las finanzas del sistema; (2) el P. del S. 219, que propone enmendar la Ley de Seguro de Responsabilidad Obligatorio para Vehículos de Motor, a los fines de disponer que $4 de la prima pagada por el seguro obligatorio fuera destinada al Sistema de Retiro; se estima que existen 3,045,000 vehículos de motor, por lo que la medida podría aportar fondos en $12,180,000 anuales; (3) el P. del S. 428, que enmendaría la Ley de Seguro de Responsabilidad Obligatorio para Vehículos de Motor con el fin de incluir 84 centavos mensuales a la prima universal inicial del seguro de responsabilidad obligatorio y destinarla al Sistema de Retiro; la cual redundaría en $2,557,000 anuales; (4) el P. del S. 429, que crearía la Ley del Fondo de Ayuda al Sistema de Retiro del Estado Libre Asociado de Puerto Rico, que establecería que toda corporación multinacional que venda más de un billón de dólares por año estará obligada a dejar en la banca local un 25% de ese dinero en Puerto Rico, por un término de diez años y de ese dinero se le traspasará un 5% al referido fondo con el propósito de reducir el déficit actuarial; (5) el P. del S. 430, que autorizaría al Sistema de Retiro a tomar dinero prestado de la Asociación Conjunta del Seguro de Responsabilidad Obligatorio; (6) el P. del S. 431, que crearía la Ley de Justicia al Pensionado del Sistema de Retiro de los Empleados del Gobierno del Estado Libre Asociado de Puerto Rico, mediante la cual se cedería un 2% del dinero retenido por toda entidad bancaria o financiera en nuestra jurisdicción, como parte del dinero en *927circulación(26) de los depósitos de nómina de pensionados del Sistema de Retiro y de la nómina de empleados públicos; (7) el P. del S. 474, que destinaría al Sistema de Retiro el exceso de $6,500,000 de los fondos transferidos por la Asociación de Suscripción Conjunta, provenientes de la partida de Fondos Retenidos por el Asegurador Pertenecientes a Otros, luego de que estos se convierten en propiedad del Gobierno de Puerto Rico y pasen al Fondo General del Tesoro Estatal, y (8) el P. del S. 493, un proyecto similar al P. del S. 474, dirigido a crear una nueva asignación anual para nutrir el déficit actuarial del Sistema de Retiro.
Además, durante el proceso de la aprobación de la Ley Núm. 3-2013 participaron distintos sectores en representación de los grupos obreros y otros. Estos expusieron claramente las repercusiones que la medida conllevaría en los servidores públicos. En ese proceso no tan sólo presentaron sus opiniones, sino que emitieron recomendaciones al Estado. Muchas de las recomendaciones razonables y acciones necesarias que el Estado pudo implantar son las siguientes: (1) cobrar las deudas que mantiene el Sistema de Retiro y no condonarlas; (2) requerir que se cumpla con el envío de las aportaciones individuales y patronales retenidas y que se impongan multas y penalidades por tal incumplimiento; (3) aumentar la captación del Impuesto a la Venta y Uso; (4) atender la evasión contributiva; (5) evaluar aumentar razonablemente las aportaciones de los empleados; (6) reducir los contratos de servicios profesionales, consultivos y de publicidad; (7) solicitar informes sobre el impacto de aprobaciones de leyes que permitieron acogerse al retiro a ciertos empleados para evaluar si recibieron aumentos de sueldo con el propósito de gozar de mayores beneficios al momento de la jubilación; (8) establecer un “grandfather clause” para aplicarse a servidores públicos *928de más de cincuenta años para que puedan retener su derecho a retirarse por mérito; (9) investigar el desembolso de beneficios a favor de personas fallecidas, y (10) solicitar información certificada sobre: (a) las deudas patronales, planes de pago y cumplimiento de éstos, y (b) las deudas condonadas a patronos y las razones para ello. Véanse: Ponencia de 14 de marzo de 2013 del Grupo de Funcionarios y Empleados de la Oficina del Contralor de Puerto Rico, págs. 8 y 9; Ponencia de 20 de marzo de 2013 de Servidores Públicos Unidos de Puerto Rico, Concilio 95/AFSCME con relación al P. de la C. 888, págs. 15-17.
Queda evidenciado que el Estado tuvo y tiene a su alcance varias recomendaciones y alternativas viables para reducir la brecha del flujo de efectivo del Sistema de Re-tiro, el cual amenaza con afectar la solvencia del fideicomiso. A pesar de ello, el Estado procedió a aprobar la Ley Núm. 3-2013. Expongamos las consecuencias adversas y los cambios drásticos contenidos en la legislación que nos ocupa.
III
Como hemos expuesto, el Sistema de Retiro está enmarcado en tres legislaciones diferentes, a saber: la Ley Núm. 447, la Ley Núm. 1 y la Reforma 2000. La Ley Núm. 3-2013 propone cambios radicales, entre los que se destacan los siguientes: (1) crear un programa híbrido de contribución definida; (2) eliminar la pensión por mérito (edad más años de servicio); (3) modificar las estructuras de las leyes que cobijan a los empleados públicos en el Sistema de Retiro; (4) alterar y requerir más años de servicio a los servidores públicos para gozar de los beneficios de una jubilación; (5) reducir beneficios especiales; (6) aumentar la aportación individual del empleado público, y (7) aumentar el desembolso del empleado público al obligarle a adquirir *929un seguro por incapacidad e imponerle los gastos de la administración del sistema.
En términos generales, los beneficiarios de la Ley Núm. 447 y la Ley Núm. 1, hasta la aprobación de la Ley Núm. 3-2013, gozaban de un plan de beneficio definido y una pensión por mérito con ciertas condiciones. Por su parte, la Reforma 2000 no contemplaba un beneficio definido, ya que esta funcionaba como un plan de ahorro el cual repartía la aportación del empleado más el rendimiento que esta pudiera generar, por lo que no existía un beneficio mínimo estipulado.
Las anualidades de retiro de los participantes de la Ley Núm. 447 eran calculados a base del 1.5% del salario promedio multiplicado por los primeros veinte años de servicio, más un 2% del salario promedio multiplicado por los años de servicio restantes.(27) En todo caso, la anualidad no podía exceder de un 75% de su salario promedio. Además, al amparo de la Ley Núm. 447, los empleados tenían la opción de recibir una pensión por mérito equivalente al 75% de su salario promedio, siempre y cuando contaran con treinta años de servicio y 55 años de edad. No obstante, por virtud de la Ley Núm. 3-2013 la pensión por mérito ha quedado eliminada, excepto para todo empleado que entre el 1 de julio de 2013 y el 30 de diciembre de 2013, cumpla con las condiciones indicadas. Ahora bien, de estos empleados ejercer su derecho, su pensión quedará reducida hasta un 15%. Véase Informe de la Reforma del Sistema de Re-tiro, Ley Núm. 3-2013. http:// www.retiro.pr.gov/wpcontent/uploads/2013/04/Presentacion-Ley-3-17-de-abrilde-2013.pdf.
Por otra parte, al aprobarse la Ley Núm. 1 la anualidad de retiro de todo empleado que entrara al servicio público entre el 1 de abril de 1990 y el 31 de diciembre de 1999, *930equivaldría al 1.5% por ciento de su salario promedio multiplicado por sus años de servicio.(28) Ambas legislaciones contemplaban un beneficio mínimo.
La Ley Núm. 3-2013 alteró el pilar de estos sistemas al cambiar la fórmula de beneficio a partir de 30 de junio de 2013; eliminó la pensión por mérito, y exigió a los servidores públicos laborar por más tiempo, requiriéndoles, a su vez, mayores aportaciones y eliminando beneficios.
Básicamente, a partir de 30 de junio de 2013, los integrantes de la Ley Núm. 447 y la Ley Núm. 1 tendrán que trabajar más tiempo y luego de esa fecha sus beneficios para jubilación equivaldrían a un plan de ahorro.(29) En cuanto a los empleados bajo la Reforma 2000, estos no podrán contar con el rembolso en una suma global de lo que aportaron para luego poder invertirlo, sino que, por el contrario, dependerán de una anualidad vitalicia. Ante la incertidumbre de cuánto realmente será el rendimiento de su dinero, los empleados públicos tendrán mayores dificultades para planificar su retiro. A su vez, nadie les garantiza que el nuevo sistema de retiro goce de suficiente liquidez para cumplir con el pago de estas anualidades una vez estos empleados se retiren.
Con relación a la edad de retiro, debemos señalar que, en términos generales, bajo la Ley Núm. 447 un empleado podía retirarse a los 55 años de edad con 25 años de servicio, o 58 años de edad con diez años de servicio. De igual forma, la Ley Núm. 447 proveía para que un empleado se pudiera acoger a una pensión diferida.(30) Por el contrario, *931con las modificaciones introducidas por la Ley Núm. 3-2013, los participantes bajo la Ley Núm. 447 que tengan, al 30 de junio de 2013, 55 años de edad o menos, podrán retirarse a los 61 años de edad, por lo que tendrán que laborar y aportar, como mínimo, por tres años adicionales a los que se comprometieron al comenzar su faena de servicio. El examen de cada uno de los restantes grupos escalonados demuestra que los cambios efectuados, relacionados con la edad para acogerse a los beneficios, tienen el efecto de, como mínimo, duplicar los años que le faltaba a un empleado para retirarse bajo la Ley Núm. 447.(31)
Por su parte, la gran mayoría de los empleados cobijados por la estructura creada por la Ley Núm. 1 podrán retirarse a los 65 años de edad, pero no contarán con el beneficio de un retiro temprano y del ajuste actuarial que ello conllevaba. Recordemos que mediante la opción del re-tiro temprano existente, antes de entrar en vigor la Ley Núm. 3-2013, un empleado cobijado por la Ley Núm. 1, podía jubilarse una vez cumplía un mínimo de 25 años de servicio y alcanzaba la edad de 55 años. Ahora, estos empleados tendrán que esperar a la edad mínima de 65 años para recibir los beneficios. Un ejemplo basta para conceptualizar el alcance nefasto de esta situación. Un empleado público que a sus 21 años de edad comenzó a laborar para el servicio público el 1 de abril de 1990, hubiera podido optar por el retiro temprano de cumplir con 25 años de servicio y 55 años de edad. Por lo tanto, este empleado, al 30 de junio de 2013, le faltaban solo 2 años de servicios y tendría que haber esperado, únicamente, 11 años para cumplir con el requisito de edad y recibir su pensión por *932retiro temprano. No obstante, con los cambios impuestos por la Ley Núm. 3-2013, ahora tendrá que trabajar por los próximos 21 años hasta alcanzar los 65 años de edad, lo que equivale a 10 años adicionales de servicio a los que contempló originalmente al firmar su contrato de empleo.
Los empleados cubiertos por lo que era la Reforma 2000 podían retirarse a los 60 años de edad. Sin embargo, con las nuevas enmiendas introducidas por la Ley Núm. 3-2013, si estos no tienen la edad de 60 años al 30 de junio de 2013, se les duplica el tiempo que les resta por aportar al sistema, al igual que los beneficiados de la Ley Núm. 447.(32) De ahora en adelante, mediante la Ley Núm. 3-2013, todo empleado que ingrese al Sistema de Retiro podrá recibir los beneficios de jubilación a los 67 años de edad, o a los 55 años de edad, si es considerado un empleado de alto riesgo.
Con relación a la situación particular de los empleados de alto riesgo (policías y bomberos), bajo la Ley Núm. 447, podían retirarse al cumplir 50 años de edad y completar 25 años de servicio. Asimismo, estos servidores podían retirarse antes de cumplir los 50 años de edad si habían prestado entre 10 a 25 años de servicio. No obstante, esta segunda alternativa implicaba una anualidad diferida hasta la fecha en la cual cumplieran los 50 años de edad. En ambos casos, la anualidad sería equivalente a los demás empleados cobijados por la Ley Núm. 447. De igual forma, el retiro de los policías y bomberos era obligatorio a partir de los 62 años.
En el caso de los servidores públicos de alto riesgo cobijados por la Ley Núm. 1, podían retirarse a la edad de 55 años, siempre y cuando hubieran completado 30 años de *933servicio. En estos casos, distinto a otros empleados, se gozaba del derecho a un 75% de su retribución promedio. Si el empleado de alto riesgo se retiraba antes de los 55 años de edad con 30 años de servicio, se reducía su pensión a un 65% de su retribución promedio.
Con la Reforma 2000, para los empleados de alto riesgo el legislador mantuvo la edad de retiro en los 55 años. A su vez, eliminó la edad de retiro obligatoria para estos funcionarios. Respecto a la aportación individual de estos empleados, la ley mantuvo el 8.275% de su retribución mensual. Sin embargo, el empleado de alto riesgo que comenzara a laborar a partir del 1 de enero de 2000, vería limitado el importe de su pensión al total de ahorros generados por tales aportaciones a lo largo de su carrera, más el rendimiento alcanzado por la inversión de estas.
Con el advenimiento de la Ley Núm. 3-2013, se catalogó como empleados de alto riesgo a los policías, bomberos estatales y municipales, y a los oficiales de custodia, excluyendo de esta clasificación a los alguaciles. De igual forma, la Ley Núm. 3-2013 ubicó al personal de alto riesgo en un programa híbrido de contribución definida. Como consecuencia, aquellos empleados de alto riesgo cobijados por la Ley Núm. 447, tendrán que esperar hasta tener 55 años de edad y 30 años de servicio para retirarse, por lo que les aumentó en 5 años la edad de retiro y el tiempo de servicio. Igualmente, aquellos servidores de alto riesgo acogidos a la Ley Núm. 1 tendrán que esperar a los 55 años de edad y 30 años de servicio para jubilarse. Por lo tanto, de igual forma se incrementó por 5 años su tiempo de servicio. La situación de estos funcionarios se recrudece aún más al considerar que tienen que retirarse por obligación a los 58 años de edad y 30 años de servicio.
Por otra parte, mediante esta nueva pieza legislativa, se aumentan los desembolsos que los servidores públicos deben hacer. Así, su aportación se establece en un mínimo de 10% de su retribución. Como si ello no fuera poco, al elimi*934narse la pensión por incapacidad ocupacional o no ocupacional, se obliga a estos servidores a desembolsar para la adquisición de un seguro por incapacidad. Ese costo, aunque no debe exceder de un cuarto por ciento de la retribución del participante, aún no ha sido establecido por el Administrador del Sistema de Retiro.(33)
Por otra parte, la Ley Núm. 3-2013 elimina varios beneficios para los futuros retirados y reduce otros para los futuros pensionados: el bono de Navidad, la aportación patronal al plan médico, y el bono de medicamentos. De otra parte, esta ley elimina los reconocimientos de servicios no cotizados, la facultad de devolver y transferir aportaciones, y modifica los beneficios por defunción.
Con el marco expuesto, pasemos a aplicar el derecho discutido a la controversia ante nuestra consideración.
IV
En las peticiones de certificación ante nuestra consideración, cientos de empleados públicos alegan que la Ley Núm. 3-2013 es inconstitucional por menoscabar sustancialmente los beneficios de retiro contractualmente acordados entre ellos y el Estado. Distinto al criterio errado de una mayoría de esta Curia, los peticionarios están asistidos por la justicia y la razón. Veamos.(34)
Según lo discutido en nuestra exposición del Derecho, en nuestra jurisdicción no existe duda alguna de que las participaciones de un empleado público en el sistema de *935retiro del Gobierno de Puerto Rico constituyen un interés propietario de naturaleza contractual que activa la garantía constitucional en contra del menoscabo de relaciones contractuales. La Ley Núm. 3-2013, al aumentar considerablemente la edad de retiro y los años de servicio que un servidor público deberá satisfacer antes de acogerse al re-tiro; al reducir significativamente el importe de la anualidad que recibirán los empleados públicos una vez se jubilen; al eliminar la acumulación de beneficios conferidos por las Leyes Núm. 447 y Núm. 1, en aras de establecer un nuevo programa de contribución definida; al aumentar la aportación de los peticionarios al fondo de retiro; al eliminar o reducir los beneficios otorgados a los servidores públicos por virtud de ciertas leyes especiales, y al imponer el pago de un seguro de incapacidad, ha menoscabado sustancialmente las expectativas de retiro y el contrato de empleo de los servidores públicos, en el cual se les reconoció un derecho adquirido a sus participaciones en el fondo de pensión del Estado, según los términos y las condiciones dispuestas en la Ley Núm. 447, la Ley Núm. 1 y la Reforma 2000.
Un menoscabo contractual tan severo como este, solo puede sobrevivir las exigencias de nuestra Constitución si el Estado logra articular que la Ley Núm. 3-2013 es necesaria y razonable para alcanzar un fin público importante. Al considerar estos factores, no debe haber duda de que, por ser el sistema de retiro un contrato público en el cual el Estado es una de las partes contratantes, no hay cabida para otorgarle a la Asamblea Legislativa una deferencia ciega respecto a si las modificaciones instauradas por la Ley Núm. 3-2013 representaban la vía más necesaria y razonable para el fin público perseguido. Emplear el escrutinio constitucional bajo examen de tal manera, equivale a una renuncia tácita e ilegítima de nuestro poder constitucional para examinar la validez de las leyes a la luz del significado de nuestra Ley Suprema, según tal significado *936ha sido demarcado por esta Curia y el Tribunal Supremo de los EE. UU. Aclarado lo anterior, examinemos estos factores de cara al contexto específico de la Ley Núm. 3-2013.
La Exposición de Motivos de la Ley Núm. 3-2013, nos ilustra que el fin público perseguido por el Estado, al aprobar la disposición legal indicada, lo constituía atender la erosión total de los activos del sistema de retiro público y evitar la degradación del crédito de Puerto Rico al llamado nivel “chatarra”. Véase Exposición de Motivos de la Ley Núm. 3-2013. Para que la Ley Núm. 3-2013 sea válida constitucionalmente, las modificaciones instauradas por su texto para alcanzar ese fin público, debían ser las alternativas necesarias y razonables.
Como bien indicamos, una medida legislativa que menoscaba relaciones contractuales será necesaria si no existían medidas legislativas alternas que lograran la obtención del fin público perseguido de manera menos drástica. En el caso particular ante nuestra consideración, encontramos que existían medidas alternas menos drásticas para inyectarle fondos al sistema de retiro público y evitar la erogación de sus activos.
Según expusimos detalladamente en la Parte II-B de esta opinión, al momento de aprobarse la Ley Núm. 3-2013, los miembros de la Cámara y el Senado, y las entidades y los sectores de nuestra sociedad que representaban a los empleados públicos afectados, presentaron una miríada de alternativas razonables y menos drásticas a la Ley Núm. 3-2013, las cuales prometían allegar una cantidad significativa de fondos recurrentes al sistema de retiro público.
Estas numerosas alternativas hubiesen resuelto el problema de flujo de caja del sistema de retiro, evitando así la necesidad de imponer sobre los hombros frágiles de los empleados públicos, la carga onerosa de los déficits creados negligentemente por el Estado. Ante la disponibilidad abrumadora de medidas alternas que hubiesen evitado el *937menoscabo contractual aquí impugnado, resulta forzoso concluir que la Ley Núm. 3-2013 no era necesaria.
En iguales términos, la disposición bajo examen tampoco es razonable en su naturaleza. Según lo discutimos, una medida legislativa es razonable solo si los efectos que se pretenden mitigar con su promulgación no eran previsibles o intencionados por el Estado al momento en el cual contrajo la obligación menoscabada. Cuando analizamos la Ley Núm. 3-2013 a la luz de este crisol, encontramos que los efectos que pretende mitigar fueron previstos desde la fecha cuando se creó el sistema de retiro público. Peor aún, las acciones y omisiones del Estado por los pasados 62 años han sido esfuerzos que han agravado la crisis que hoy pretende remediar, a costas del bienestar de miles de empleados públicos inocentes.
Concretamente, desde el 15 de mayo de 1951, fecha en la cual se creó el sistema de retiro que hoy analizamos, el Estado conocía que el mismo sufría de un déficit actuarial millonario que debía atajar con prontitud. Desde 1957 hasta el presente, la Oficina del Contralor y otras entidades financieras públicas y privadas, pronosticaron el crecimiento desbocado de este déficit y aconsejaron al Estado respecto a la necesidad de atender la crisis financiera del retiro oportuna y adecuadamente.
A su vez, el Gobierno conocía que, por virtud del número significativo de participantes del sistema de retiro pronto a retirarse, el déficit actuarial quedaría agravado por un déficit en el flujo de efectivo, el cual incidiría sobre la liquidez del sistema y la fuente de pago de los beneficios de los empleados. A pesar de estas exhortaciones e indicios de peligro, el Estado se cruzó de brazos y permitió que los déficits trogloditas crecieran desmedidamente.
Peor aún, el Estado se convirtió en agente activo de la crisis que veía venir, tomando acciones en detrimento de la liquidez del fondo de retiro. Según lo expuesto, el Estado: (1) aprobó un número significativo de leyes especiales que *938concedieron unos beneficios adicionales a la anualidad de retiro; (2) mantuvo en un nivel insostenible el porcentaje mínimo de las aportaciones patronales y de los empleados; (3) emitió bonos garantizados por las aportaciones patronales requeridas para el pago de beneficios de retiro, y (4) otorgó un sinnúmero de préstamos que comprometieron la liquidez del sistema. Por causa de estas acciones, desde 1954 al presente, los déficits indicados continuaron su ascenso a niveles insostenibles.
Mientras tanto, el Estado se hizo el desentendido y se convirtió en el principal responsable de lo que hoy, en aras de evadir responsabilidad, pretende catalogar como una “acción inevitable”. Nada más lejos de la verdad. Todo lo reseñado apunta a que esta crisis era previsible desde el momento cuando se creó el sistema de retiro que hoy se encuentra al borde del abismo. Asimismo, las acciones y omisiones del Estado han sellado el fracaso del sistema, en aras de atender otros intereses de menor importe social. Ante tal proceder, la Ley Núm. 3-2013 no cumple con el criterio de razonabilidad.
En resumidas cuentas, las cargas impuestas a los trabajadores puertorriqueños por virtud de la Ley Núm. 3-2013 no eran necesarias ni razonables. Consecuentemente, no quedaba otra alternativa que reconocer los vicios de inconstitucionalidad presentes en la ley impugnada,(35)
Sin embargo, la decisión de una mayoría de este Tribunal opta por vindicar la Ley Núm. 3-2013, la cual solo puede interpretarse como la opción más drástica disponible en el arsenal legislativo del Estado, que conlleva la nefasta realidad de: (1) acelerar la decisión de jubilación o renuncia de los servidores públicos, ocasionando la erogación de fondos no previstos; (2) aumentar de manera dramática e irrazonable los años de servicio requeridos a un *939empleado para jubilarse; (3) reducir los beneficios de jubilación acordados cuando fue nombrado; (4) agravar la crisis económica y social que atraviesa Puerto Rico, al impedir que los empleados públicos puedan cumplir cabalmente con sus deudas contraídas, ya que al momento de jubilarse no contarán con los ingresos esperados y planificados para su jubilación; (5) limitar las opciones de los servidores públicos, quienes no gozan de alternativas con relación al disfrute de las aportaciones que realizaron; (6) promover la inestabilidad emocional, afectando así la salud y el bienestar de los servidores públicos, quienes desconocen el monto con el que podrán contar al momento de retirarse, y (7) impedir que el empleado público pueda ahorrar debido a que se gravan sus fondos al aumentar sus aportaciones y requerírsele que adquieran un seguro de incapacidad y que aporten al pago de la administración del sistema.(36)
Hoy, una mayoría de esta Curia obvia esta realidad. Como situación agravante, compran “el argumento ad terrorem de que la legislación [bajo examen] es intocable judicialmente debido a que la anulación causaría una posible degradación del crédito del país”.(37) De tal manera, permiten que el Estado cancele “unilateralmente su compromiso laboral con los servidores públicos [...], pretendiendo amordazar al Poder Judicial” en el proceso.(38) En efecto, dos hilos se han entrelazado armoniosamente con un hilo de la mayoría de este Tribunal y el resultado irremediable es que la cuerda triple amordazó a la justicia.
Al así obrar, la opinión mayoritaria le da la espalda al trabajador puertorriqueño, permitiendo que el Estado le imponga la carga de sus errores a los servidores públicos que confiaron en él. De este modo, olvidan las palabras acertadas del Juez Asociado Señor Alonso Alonso, quien, en *940una coyuntura similar a la que hoy examinamos, afirmó lo siguiente:
El Estado y las entidades que tienen responsabilidad sobre la administración y buena marcha de los sistemas de retiro tienen sobre sus hombros una gran responsabilidad de mantener la solvencia de los sistemas de retiro y de administrarlos con debido cuidado y prudencia.
El Estado no debe justificar cambios al sistema de retiro al alegar que son necesarios y razonables para mantener la solvencia económica de éste cuando la debilidad fiscal del mismo se debe al descuido y a la falta de cuidado del Estado propiamente. (Enfasis suplido). Bayrón Toro v. Serra, supra, pág. 625, voto particular del Juez Asociado Señor Alonso Alonso.
Ciertamente, el mal que hoy se le impone a los trabajadores es producto del descuido administrativo que, por décadas, el Estado ha venido arrastrando y postergando. Sin embargo, urna mayoría de este Foro ha castigado al más inocente —al empleado— y ha premiado la irresponsabilidad del más culpable: el Gobierno. Con ello, ha consentido a que el Estado apunte su lanza en contra de los servidores públicos, para así poder sembrar terror, acusarlos y repartirles las responsabilidades que declinó ejercer. Ante tal proceder, no me queda otra opción que disentir.
V
Por los fundamentos expuestos, resulta irremediable reconocer que la Ley Núm. 3-2013 adolece de patentes vicios constitucionales. En consecuencia, procedía revocar al Tribunal de Primera Instancia.
Esta prohibición constituye una de las limitaciones expresas de la Constitución federal al poder de Estados de la Unión. U.S. Trust Co. of New York v. New Jersey, 431 US 1, 14 (1977). Esta limitación no vincula al Gobierno federal. E. Chemerinsky, Constitutional Law: Principles and Policies, 4th ed., Maryland, Ed. Wolters Kluwer, Sec. 8.3.1, 2011, pág. 645. No obstante, el Gobierno federal queda sujeto a prohibiciones análogas en su naturaleza por virtud de la Quinta Enmienda de la Constitución federal, que garantiza el derecho a un debido proceso de ley. Id.
El Tribunal Supremo federal ha abordado este requerimiento en las siguientes palabras:
“[...] The severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of the contractual obligations may end the inquiry at its first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.
“The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the Framers placed on the protection of [...] contracts. Contracts enable individuals to order their personal [...] affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them”. (Enfasis nuestro). Allied Structural Steel Co. v. Spannaus, 438 US 234, 245 (1978).
En Dominguez Castro et al. v. E.L.A. I, supra, pág. 83, una mayoría de este Tribunal, según estaba compuesto en aquel entonces, añadió que un menoscabo contractual severo es aquel que modifica “adversamente los términos o condiciones esenciales del contrato que principalmente dieron motivo a la celebración de éste de modo que se frustren las expectativas de las partes”.
El Tribunal Supremo federal ha afirmado lo anterior en los siguientes términos:
“[...] [i]t is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights. Every case must be determined upon its own circumstances”. (Enfasis suplido y citas omitidas). Home Bldg. & Loan Ass’n v. Blaisdell, supra, pág. 430.
Se ha reconocido que el intento por remediar un problema social o económico de naturaleza amplia y general puede constituir un interés público importante y significativo. Energy Reserves Group, Inc. v. Kansas Power and Light Co., supra, pág. 412.
El profesor de derecho constitucional, Erwin Chemerinsky, al interpretar la exigencia del Tribunal Supremo federal respecto a que la medida empleada sea necesaria y que no existan alternativas cuyos efectos sean menos drásticos a la hora de alcanzar el interés público articulado por el Estado, concluyó que el Más Alto Foro federal equiparó el escrutinio utilizado en casos de menoscabo de relaciones contractuales públicas a un escrutinio estricto. Chemerinsky, op. cit., See. 8.3, pág. 655. Ello implica, necesariamente, que la inconstitucionalidad de la legislación impugnada debería presumirse.
Sistema de Retiro de los Empleados del Gobierno, Origen, déficit actuarial y recomendaciones, Comisión Especial Permanente sobre los Sistemas de Retiro, enero 2013, Vol. 3.
Desde 1957 la Oficina del Contralor, por medio de los distintos informes de auditoría, señaló el déficit actuarial y las recomendaciones que han de seguir. Mediante el Informe Núm. DB-58-04 de 30 de septiembre de 1957 se estableció un déficit actuarial de $23,705,363; el Informe Núm. DA-83-41 de 30 de junio de 1983 estableció un déficit actuarial de $1.1 billones al 30 de junio de 1975; el Informe Núm. DA-89-43 lo estableció en $2.8 billones al 30 de junio de 1984; el Informe Núm. DA-96-28 de 14 de mayo de 1996 lo estableció en $4.5 billones al 30 de junio de 1994, y el Informe Núm. RF-12-03 de 13 de enero de 2012 lo estableció en $17 billones al 30 de junio de 2009.
Véase el Informe de la Oficina del Contralor DA-89-43.
Véanse: Ponencia del Departamento de Hacienda sobre el P. de la C. 888 de 12 de marzo de 2013, pág. 3; Informe Positivo de 12 de junio de 2013 de la Comisión de Hacienda y Finanzas Públicas del Senado de Puerto Rico con relación al P. de la C. 1055, Ira Sesión Ordinaria, 17ma Asamblea Legislativa. En la actualidad, el Sistema de Retiro desembolsa cerca de $1.55 billones anualmente y recibe $750 millones, por lo que el 52% de sus obligaciones no están cubiertas. De estos se espera que para el 2014 el Estado desembolse el 1.4% del Fondo General. Véase Puerto Rico adopts major pension reform and proposes sales tax expansion for fiscal 2014 budget, May 15, 2013, Moody’s Investors Service, en: http://www.gdb-pur.com/documents/ PensionReformIssuerComment-5-15-13.pdf.
Véanse, además: Employee’s Retirement System of the Government of the Commonwealth of Puerto Rico, Estados financieros para el año término de 30 de junio de 2011 realizados por Deloitte & Touch, LLP y la Valorización Actuarial al 30 de junio de 2011, Milliam, Wayne, PA. Para este periodo los beneficios se entienden que procederán de dinero prestado.
Refiérase a las Valorizaciones Actuariales al 30 de junio de 2011 y al 30 de junio de 2007, Milliman, Wayne, PA.
Véanse: Ley Núm. 95 de 29 de junio de 1963 (3 LPRA secs. 729a-729m) (aportación a planes de salud); Ley Núm. 98 de 4 de junio de 1980 (3 LPRA see. 761 n.) (aguinaldo de Navidad); Ley Núm. 14 de 24 de abril de 1987 (3 LPRA see. 761 n. y 18 LPRA see. 383) (aguinaldo de Navidad); Ley Núm. 109-1997 (3 LPRA see. 761 n. y 18 LPRA see. 383) (aumentó el aguinaldo de Navidad); Ley Núm. 37-2001 (3 LPRA sec. 757g) (bono de verano); Ley Núm. 155-2003 (3 LPRA sec. 757j) (bono de medicinas); Ley Núm. 159-2003 (3 LPRA see. 761 n.) (aumentó el aguinaldo de Navidad); Ley Núm. 433-2004 (3 LPRA see. 761 n.) (aumentó el aguinaldo de Navidad); Ley Núm. 144-2005 (3 LPRA see. 761 n. y 18 LPRA see. 383) (aumentó el aguinaldo de Navidad).
Véanse: Ley Núm. 169 de 30 de junio de 1968 (25 LPRA see. 391 et seq.); Ley Núm. 105 de 28 de junio de 1969 (3 LPRA sec. 188a); Ley Núm. 4 de 7 de abril de 1985 (3 LPRA sec. 188a); Ley Núm. 13-1992 (3 LPRA sec. 188a); Ley Núm. 156-2003 (3 LPRA sees. 766 y 766d) (aumentó en un 50% la pensión al cónyuge).
Véanse: Ley Núm. 11 de 13 de abril de 1986(3 LPRA see. 773); Ley Núm. 316-2000 (3 LPRA see. 773) (aumentó en $250 pago mínimo por defunción); Ley Núm. 524-2004 (3 LPRA see. 773) (aumentó en $250 pago mínimo por defunción).
Véanse: Informe de Auditoría RF-13-10 de 8 de mayo de 2013 de Administración de los Sistemas de Retiro de los Empleados del Gobierno y la Judicatura para el período del 1 de julio de 2003 al 30 de junio de 2012; Employee’s Retirement System of the Government of the Commonwealth of Puerto Rico, Estados financieros para el año término del 30 de junio de 2011 realizados por Deloitte & Touch, LLP; Ley Núm. 72 de 20 de junio de 1956 (3 LPRA see. 750).
El Informe de Patronos Morosos al 13 de mayo de 2013, refleja que las corporaciones públicas y los municipios adeudan al sistema $58,618,412.18 y $26,772,919.33, respectivamente, en concepto de leyes especiales, tales como: bonos de navidad, bonos de medicamentos, pagos de préstamos, remesas y programas de retiro temprano, entre otros. Además, se estima que la Autoridad de Acueductos y Alcantarillados adeuda al Sistema de Retiro $833,219,000 y el Fondo del Seguro del Estado $984,943,000 por falta de cumplimiento con el Art. 2-116 de la Ley Núm. 447 (3 LPRA see. 781).
A modo de ejemplo: Ley Núm. 110 de 7 de junio de 1973 (1973 Leyes de Puerto Rico 480) (promovió un préstamo de $100 millones al presupuesto general sin el pago de intereses); Ley Núm. 97-2002 (3 LPRA sec. 830q); Ley Núm. 168-2005 (3 LPRA sec. 830q) (concedió un plan de pago a aquellos empleados que retiraron sus aportaciones del Sistema de Retiro).
Véanse: Ley Núm. 127 de 27 de junio de 1958 (25 LPRA see. 376 et seq.) (concedió beneficios a participantes de alto riesgo); Ley Núm. 2 de.26 de marzo de 1965 (3 LPRA secs. 21-24) (anualidad vitalicia a exgobernadores antes de 1992 y $10,000 a la viuda); Ley Núm. 80 de 13 de julio de 1988 (29 LPRA see. 814) (acreditó los servicios militares prestados con anterioridad y posterioridad a la Ley Núm. 447); Ley Núm. 71 de 17 de agosto de 1989 (3 LPRA see. 765) (acreditó el tiempo que un dirigente obrero sirvió a una unión); Ley Núm. 116-1993 (3 LPRA sec. 765) (acreditó los servicios prestados por los empleados de la Oficina Legal de Santurce, Inc.); Ley Núm. 24-1994 (27 LPRA see. 401 n.) (retiro temprano a los empleados de la Autoridad de Teléfonos de Puerto Rico y sus subsidiarias); Ley Núm. 90-1994 (7 LPRA sees. 1226-1226b) (retiro temprano a los empleados de la Corporación de Crédito y Desarrollo Comercial y Agrícola de Puerto Rico); Ley Núm. 149-1994 (3 LPRA see. 765) (acreditó los servicios prestados a la Asociación de Pensionados del Gobierno de Puerto Rico, Inc.); Ley Núm. 54-1995 (3 LPRA see. 761 n.) (Retiro Temprano a los empleados del Banco Gubernamental de Fomento); Ley Núm. 255-1995 (3 LPRA sees. 764-765) (eliminó el impedimento por edad para entrar al Sistema de Retiro y la acreditación por años de servicio); Ley Núm. 3-1996 (3 LPRA sees. 764 y 782) (incluyó compulsoriamente a los empleados y funcionarios municipales); Ley Núm. 49-1996 (3 LPRA see. 765) (incluyó como servicios acreditables los prestados por los empleados de la Asociación de Alcaldes de Puerto Rico, la Federación de Municipios de Puerto Rico y los Consorcios Municipales); Ley Núm. 57-1996 (3 LPRA see. 766) (incluyó a los alcaldes como funcionarios que pueden acogerse al Sistema de Retiro); Ley Núm. 204-1997 (23 LPRA secs. 306-306c) (retiro temprano a Compañía de Fomento Industrial); Ley Núm. 182-1998 (retiro temprano a empleados de las Ramas Ejecutiva, Legislativa y Judicial); Ley Núm. 217-1998 (3 LPRA see. 765) (acreditó el tiempo trabajado a los empleados de la Administración del Derecho al Trabajo); Ley Núm. 370-1999 (3 LPRA sees. 7001 y 7004) (retiro temprano a empleados del Municipio de San Juan); Ley Núm. 112-2000 (3 LPRA sees. 7011-7014) (retiro temprano a empleados del Banco Gubernamental de Fomento); Ley Núm. 119-2000 (3 LPRA sees. 7031-7041) (retiro temprano a empleados de la Corporación del Fondo del Seguro del Estado); Ley Núm. 174-2000 (3 LPRA sees. 5018-5034) (retiro temprano a empleados de las Ramas Ejecutiva, Legislativa y Judicial); Ley Núm. 193-2000 (3 LPRA see. 765) (acreditó el servicio prestado por empleados de San Juan Legal Services Incorporated); Ley Núm. 218-2000 (3 LPRA see. 765) (acreditó el servicio prestado por empleados de Agencias del Gobierno de los Estados Unidos de Norte América); Ley Núm. 339-2000 (3 LPRA sees. 5001-5002) (retiro temprano a los empleados del Departamento de Salud); Ley Núm. 464-2000 (3 LPRA sees. 7015-7017) (retiro temprano a los empleados del Banco Gubernamental de Fomento para Puerto Rico, la Autoridad para el Financiamiento de las Facilidades Industriales, Turísticas, Educativas, Médicas y Control Ambiental y de la Corporación para el Financiamiento de la Vivienda de Puerto Rico); Ley Núm. 360-2004 (7 LPRA sees. 1231-1236) (retiro temprano a los empleados de la Compañía de Comercio y Exportación de Puerto Rico); Ley Núm. 143-2005 (23 LPRA sees. 307-307Í) (retiro tem*919prano empleados de la Compañía de Fomento Industrial); Ley Núm. 273-2006 (23 LPRA see. 673 et seq.) (retiro temprano a los Empleados de la Compañía de Turismo); Ley Núm. 33-2007 (3 LPRA see. 765) (eliminó el requisito mínimo por tiempo servido al legislador municipal); Ley Núm. 66-2007 (7 LPRA sees. 1237 et seq.) (retiro temprano a los empleados de la Compañía de Comercio y Exportación de Puerto Rico); Ley Núm. 188-2007 (7 LPRA secs. 608-608h) (retiro temprano a los empleados del Banco Gubernamental de Fomento); Ley Núm. 59-2008 (28 LPRA see. 301 et seq.) (retiro temprano a los empleados de la Autoridad de Tierras de Puerto Rico); Ley Núm. 136-2008 (3 LPRA see. 331 et seq.) (retiro temprano a los empleados del Departamento del Trabajo y Recursos Humanos); Ley Núm. 244-2008 (3 LPRA see. 7051 et seq.) (retiro temprano a los empleados de la Junta de Calidad Ambiental); Ley Núm. 275-2008 (3 LPRA see. 7071 et seq.) (Retiro Temprano a los empleados de la Administración del Derecho al Trabajo); Ley Núm. 70-2010 (3 LPRA see. 8881 et seq.). Según cifras presentadas por la Oficina del Contralor en su Ponencia de 14 de marzo de 2013 sobre el P. del C. 888, pág. 3, el costo de los empleados que se acogieron al retiro temprano ronda en los $739,894,544.
Véanse: Ley Núm. 124 de 8 de junio de 1973 (3 LPRA see. 761 n.); Ley Núm. 23 de 23 de septiembre de 1983 (3 LPRA sec. 138ZZ) (la mitad del aumento de ciertas pensiones); Ley Núm. 221-1998 (3 LPRA see. 761 n.) (aumentó en un 3% las anualidades pagadas por la Ley Núm. 447); Ley Núm. 22-2005 (3 LPRA sec. 766g) (fijó la edad de retiro obligatorio de los miembros de la Policía de Puerto Rico y el Cuerpo de Bomberos a los 58 años de edad); Ley Núm. 35-2007 (3 LPRA sees. 766 y 766d) (concedió otro aumento de 3% a las anualidades pagadas para ciertas pensiones y aumentó la pensión mínima por $100 mensuales); Ley Núm. 15 de 24 de abril de 1987 (3 LPRA sees. 766 n.); Ley Núm. 207-1995 (3 LPRA sec. 779a); Ley Núm. 134-1996 (3 LPRA sec. 766e y 25 LPRA sec. 378a) (aumento COLA a pensionados de alto riesgo); Ley Núm. 221-1998 (3 LPRA see. 761 n.); Ley Núm. 208-2000 (3 LPRA see. 766f) (aumento de $200 a pensión de ciertos beneficiarios); Ley Núm. 40-2001 (3 LPRA see. 761 n.) (aumento adicional de 3%); Ley Núm. 156-2003, supra; Ley Núm. 157-2003 (3 LPRA see. 761 n.).
Conforme al Informe Final de 28 de septiembre de 2012 de la Comisión de los Sistemas de Retiro del Servicio Público de la Cámara de Representantes con relación a la R. de la C. 477, 7ma Sesión Ordinaria, 16ta Asamblea Legislativa, existen 4,027 pensionados y beneficiarios mayores a los noventa años de edad. Estos reciben una pensión mensual con leyes especiales de alrededor de $1,895,000.
Véanse: Ley Núm. 216-2008; y Ley Núm. 234-2008.
Sobre este particular refiérase a las ponencias presentadas durante la discusión del P. de la C. 888 que se convirtió en la Ley Núm. 3-2013: (1) Memorial *920Explicativo de 20 de marzo de 2003 sobre el P. de la C. 888, presentado por los Servidores Públicos Unidos de Puerto Rico Concilio 95/AFSCME, págs. 4-5; (2) Ponencia de 8 de marzo de 2013 del Ledo. Héctor Mayol Kauffmann, Administrador de la Administración de los Sistemas de Retiro de los Empleados del Gobierno y la Judicatura sobre el P. de la C. 888, pág. 3; (3) Ponencia de 12 de marzo de 2013 del Banco Gubernamental de Fomento sobre el P. de la C. 888, págs. 2-3; (4) Ponencia de 12 de marzo de 2013 del Departamento de Hacienda sobre el P. de la C. 888, pág. 4; (5) Ponencia de la Federación de Pensionados y Jubilados de Puerto Rico sobre el P. de la C. 888, págs. 2-4 y 6-7; (6) Ponencia de 12 de marzo de 2013 de la Federación del Trabajo de PR-AFL-CIO, la Central Puertorriqueña de Trabajadores, la Central Alianza Laboral y la Asociación de Maestros de Puerto Rico sobre el P. de la C. 888, págs.7-13; (7) Ponencia de 11 de marzo de 2013 de la Oficina de Gerencia y Presupuesto sobre el P. de la C. 888, pág. 2; (8) Ponencia de 14 de marzo de 2013 del Grupo de Funcionarios y Empleados de la Oficina del Contralor de Puerto Rico sobre el P. de la C. 888, págs. 2-3.
Ley Núm. 42 de 19 de junio de 1987 (3 LPRA see. 779); Ley Núm. 46 de 29 de junio de 1988 (3 LPRA secs. 779-779c).
Al momento de su aprobación, varios sectores reclamaron y denunciaron la falta de información actuarial para valorizar las propuestas aprobadas. Entre estos sectores, se encontraron los siguientes: los Servidores Públicos Unidos de Puerto Rico Concilio 95/AFSCME, la AARP, la Federación del Trabajo de PR-AFL-CIO, la Central Puertorriqueña de Trabajadores, la Central Alianza Laboral y la Asociación de Maestros de Puerto Rico, la Local 2396, representante exclusiva de los empleados de Comedores Escolares, la Local 1850, representante exclusiva de los empleados de la Asociación de Empleados del Gobierno de Puerto Rico, y el Sr. José Melara, representante internacional y “Organizing Coordinator” de la UAW.
Debido al gran número de propuestas, se propuso que se hiciera un solo proyecto para recogerlas, denominado Ley de Recáudos para Salvar las Pensiones de los Participantes y Empleados Públicos del Gobierno Central. Véase Ponencia de la Asociación de Empleados de Comedores Escolares de Puerto Rico UAW Local 2396 ante la Comisión de Asuntos Laborales y Sistemas de Retiro del Servicio Público de la Cámara de Representantes de Puerto Rico sobre el P. de la C. 888.
Se refiere al dinero depositado pero no acreditado a la cuenta de su destinatario. Ese dinero devenga intereses para las entidades bancarias mientras se finaliza ese proceso.
El salario promedio es calculado a base de los salarios más altos durante cualesquiera 36 meses.
El salario promedio es calculado a base de los últimos cinco años de servicio.
La Ley Núm. 3-2013 contempla que la rentabilidad de las aportaciones nunca será menor del 80% del rendimiento neto de la cartera de inversión por semestre de rentabilidad. La anualidad se hará a base de un factor a determinarse por el actuario del Sistema de Retiro y la expectativa de vida actuarial con la tasa fija garantizada.
Específicamente, la Ley Núm. 447 proveía para que un empleado público con menos de 58 años de edad y con diez a veinticinco años de servicios pudiera recibir una pensión diferida una vez alcanzara los 58 años de edad. Asimismo, este beneficio de pensión diferida también estaba disponible para aquellos servidores públicos que se hubiesen retirado con veinticinco años de servicio, pero con menos de 55 años de edad.
Ello surge de que hoy los funcionarios bajo la Ley Núm. 447, que al 30 de junio de 2013 no cumplan con las condiciones descritas, podrán retirarse escalonadamente de la manera siguiente: si el empleado tiene 57 años de edad, el retiro será cuando el empleado alcance los 59 años de edad; si el empleado tiene 56 años de edad, podrá retirarse a los 60 años de edad; si el empleado tiene 55 años de edad o menos, será elegible para el retiro cuando alcance 61 años de edad. Véase Sec. 17 de la Ley Núm. 3-2013.
Ello se desprende de que la edad de retiro para los participantes de la Reforma 2000 era, en su mayoría, de 60 años de edad. Ahora, con la nueva ley, si al 30 de junio de 2013 el empleado tiene 59 años de edad, el retiro será opcional a los 61 años de edad; si tiene 58 años de edad, podrá retirarse a los 62 años de edad; si tiene 57 años de edad, será elegible para el retiro a los 63 años de edad; si tiene 56 años de edad, podrá jubilarse a los 64 años de edad y si tiene 55 años o menos, será elegible a los 65 años de edad. Véase Sec. 17 de la Ley Núm. 3-2013.
Véase Secs. 19 y 26 de la Ley Núm. 3-2013.
Recordemos que las peticiones de certificación ante nuestra consideración impugnan una desestimación conferida por el Tribunal de Primera Instancia. Ante ello, tomamos como ciertos todos los hechos bien alegados en las demandas de los peticionarios. Epifanio Vidal, Inc. v. Suro, 103 DPR 793 (1975). Una desestimación solo procederá si, luego de resolver toda duda a favor de los peticionarios demandantes, encontramos que estos no exponen una reclamación que justifique la concesión de un remedio. Ramos Lozada v. Orientalist Rattan Furniture, 130 DPR 712 (1992). A su vez, tomamos conocimiento judicial de todas las ponencias y los proyectos de ley presentados ante la Asamblea Legislativa con relación al sistema de retiro de los empleados públicos.
En iguales términos, recordemos que toda legislación que procure menoscabar relaciones contractuales debe ser temporera en su naturaleza. Aquí, los cambios impugnados no tienen un ámbito de aplicabilidad limitado. Al contrario, estos son de carácter permanente. Ello abona a su inconstitucionalidad.
Véase Ponencia de 14 de marzo de 2008 del Grupo de Funcionarios y Empleados de la Oficina del Contralor de Puerto Rico sobre el P. de la C. 888, págs. 7-8.
A.S. Negrón García, Tribunal Supremo y sistema de retiro, El Nuevo Día, 18 de junio de 2013.
íd. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/997864/ | Filed: February 17, 1999
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 98-2392(L)
(CA-97-1534-A, CA-97-1859-A)
Bryant C. Brooks,
Plaintiff - Appellant,
versus
Burlington Coat Factory, etc., et al,
Defendants - Appellees.
O R D E R
The court amends its opinion filed December 30, 1998, as
follows:
On page 2, section 1, line 2 -- the judge’s name is corrected
to read "Theresa Carroll Buchanan, Magistrate Judge."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2392
BRYANT C. BROOKS,
Plaintiff - Appellant,
versus
BURLINGTON COAT FACTORY WAREHOUSE OF STERLING
PARK, INCORPORATED; TYRONE E. GIBSON, Manager,
Burlington Coat Factory; CHARLES E. HAYES,
JR., Security, Burlington Coat Factory; MONROE
MILSTEIN,
Defendants - Appellees.
No. 98-2402
BRYANT C. BROOKS,
Plaintiff - Appellant,
versus
TYRONE E. GIBSON, Manager, Burlington Coat
Factory; CHARLES E. HAYES, JR., Security,
Burlington Coat Factory; MONROE MILSTEIN,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Theresa Carroll Buchanan, Magis-
trate Judge. (CA-97-1534-A, CA-97-1859-A)
Submitted: December 17, 1998 Decided: December 30, 1998
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bryant C. Brooks, Appellant Pro Se. Joy Cummings Fuhr, Kimberly
Rose Hillman, MCGUIRE, WOODS, BATTLE & BOOTHE, Richmond, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
3
PER CURIAM:
Bryant C. Brooks appeals the district court’s orders granting
summary judgment to the Defendants and dismissing his civil
actions. We have reviewed the records and the district court’s
opinions and orders and find no reversible errors. Accordingly, we
affirm on the reasoning of the district court. See Brooks v.
Burlington Coat Factory, Nos. CA-97-1534-A; CA-97-1859-A (E.D. Va.
Jul. 17, 1998 & Jul. 23, 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.
AFFIRMED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2897567/ | NOS. 07-07-0088-CR
07-07-0089-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 2008
______________________________
FELIPE HERNANDEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 15,436-B, 15,437-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Felipe Hernandez, Jr., was convicted of aggravated robbery in two
causes and received seven year sentences in both cases, with the imposition of the
sentences being suspended for a period of ten years. The State subsequently filed a
motion to revoke appellant’s probation in both causes alleging that appellant had violated
the terms and conditions of probation by committing a new offense. The trial court
subsequently found the allegations in the State’s motion to revoke probation true and
sentenced appellant to concurrent terms of seven years incarceration in the Institutional
Division of the Texas Department of Criminal Justice. We affirm.
Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion
to withdraw, counsel certifies that he has diligently reviewed the record and, in his opinion,
the record reflects no reversible error upon which an appeal can arguably be predicated.
Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.
1978), counsel has candidly discussed why, under the controlling authorities, there is no
error in the trial court’s judgments. Additionally, counsel has certified that he has provided
appellant a copy of the Anders brief and motion to withdraw and appropriately advised
appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d
503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a
pro se response. Appellant has not filed a response.
By his Anders brief, counsel raises grounds that could possibly support an appeal,
but concludes the appeal is frivolous. We have made an independent review of the entire
record to determine whether there are any arguable grounds which might support an
appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). We have found no such
arguable grounds and agree with counsel that the appeal is frivolous.
Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s
judgments are affirmed.
Mackey K. Hancock
Justice
Do not publish. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2907509/ | JONES V. STATE
NO. 10-89-236-CR
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
          STUART JONES,
                                                                                            Appellant
          v.
          THE STATE OF TEXAS,
                                                                                            Appellee
* * * * * * * * * * * * *
From 54th Judicial District Court
McLennan County, Texas
Trial Court # 89-416-C
* * * * * * * * * * * * *
O P I N I O N
* * * * * * *
          Appellant was indicted for the offense of Aggravated Sexual Assault.
He was found guilty
by a jury and assessed forty years in prison. We will affirm.
          In Appellant's first point, he complains that the trial court erred in entering a deadly
weapon finding in the judgment. The court included the finding in the judgment based upon the
jury's verdict which found Appellant "guilty of the offense of Aggravated Sexual Assault, as
alleged in the indictment." The indictment alleged Appellant did the following:
intentionally and knowingly cause the penetration of the female sexual organ of [the victim]
by the penis of the said [Appellant] without the consent of [the victim] by compelling [the
victim] to submit and participate by the use of physical force and violence and by
threatening to use force and violence against [the victim] and [the victim] believed that
[Appellant] had the present ability to execute said threat, and said [Appellant] used and
exhibited a deadly weapon to-wit: a firearm, in the course of the same criminal episode
. . . .
This indictment contains all elements necessary for the offense of Aggravated Sexual Assault.
Because the jury verdict read, "[w]e the Jury, find the defendant . . . guilty of the offense of
Aggravated Sexual Assault, as alleged in the indictment," it included an affirmative finding that
Appellant committed the offense while using a firearm. See Tenery v. State, 680 S.W.2d 629, 635
(Tex.App.âCorpus Christi 1984, pet. ref'd). Id. The judgment needs no reformation since it
properly reads that the "jury found [a] deadly weapon was used." Appellant's point is overruled.
          In Appellant's next point he complains that the trial court erred in refusing to include an
instruction in the charge regarding his failure to testify at the punishment phase of the trial.
During the punishment phase, Appellant's attorney made a request that the jury be instructed in
the charge to not consider the failure of Appellant to testify. The judge answered the request
affirmatively and then instructed that the jury be returned to the courtroom. The judge then read
the charge to the jury. Appellant's requested instruction was omitted from the charge. However,
nowhere in the record do we find an objection to the omission. This was obviously an accidental
omission by the trial court and it is incumbent upon Appellant to object to the omission in order
to preserve error for our review. See Thiel v. State, 676 S.W.2d 593, 594 (Tex.Crim.App. 1984).
We overrule the second point.
          Appellant complains in his third and fourth points that the trial court erred in allowing
testimony regarding his character at the punishment phase of trial which, he argues, subjected him
to cruel and unusual punishment under the sixth and fourteenth amendments to the United States
Constitution. Testimony during the punishment phase is governed by article 37.03 of the Texas
Rules of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07 (3) (Vernon Supp.
1991). The code provides in part:
. . . evidence may, as permitted by the Rules of Evidence, be offered by the state and the
defendant as to any matter the court deems relevant to sentencing, including the prior
criminal record of the defendant, his general reputation and his character.
Rule 404 of the Texas Rules of Criminal Evidence allows the introduction of evidence as to the
prior criminal record and character of the accused at the penalty phase of the trial. Tex. R. Crim.
Evid. 404(c). Rule 405 of the Texas Rules of Criminal Evidence prescribes the methods of
proving character, which are as follows:
In all cases in which evidence of character or trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an
opinion. Provided however that to be qualified to testify concerning the character or trait
of character of an accused, a witness must have been familiar with the reputation, or with
the underlying facts or information upon which the opinion is based, prior to the day of
the offense. . . .
Tex. R. Crim. Evid. 405(a) (emphasis added).
          Here, the witness was questioned by the prosecutor as follows:
[PROSECUTOR]: I ask you if you know the [Appellant] in this case, Stuart
Jones?
[WITNESS]: Yes I do.
[PROSECUTOR]: And have you had occasion in the past to talk with him?
[WITNESS]: Yes I have.
[PROSECUTOR]: I'm going to ask you if you are substantially or were
substantially familiar with his reputation for being a peaceful and law abiding
citizen prior to January 29, 1989?
[WITNESS]: Yes I was.
[PROSECUTOR]: And was that from conversations from other people as
well as your own observations?
[WITNESS]: Correct.
[PROSECUTOR]: And what was that reputation.
[WITNESS]: Bad.
The witness's actual testimony at trial was proper and did not violate Rule 405 by proving
character by specific acts, as argued by Appellant. See Tex. R. Crim. Evid. 405(a). When the
witness was questioned out of the presence of the jury, he testified he formed his opinion while
investigating a crime that had occurred in which Appellant was the victim. The witness had
discussions with several individuals regarding Appellant and his reputation. The witness's
testimony was based on discussions with others concerning Appellant, or on hearing others discuss
Appellant's reputation, and not just on his personal knowledge. See Castillo v. State, 739 S.W.2d
280, 292 (Tex.Crim.App. 1987). The trial court properly admitted the evidence and Appellant's
third and fourth points are overruled.
          We affirm the judgment.
                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice
Before Chief Justice Thomas,
          Justice Cummings and
          Justice Vance
Affirmed
Opinion delivered and filed August 15, 1991
Do not publish
s has held that it is error for the trial court to refuse a request to
allow a defendant to cross-examine the prosecutor on his race neutral reasons
or to perfect a bill of exception. Salazar v. State, 795 S.W.2d 187,
192-193 (Tex. Crim. App. 1990). But Hill
did not ask to put on additional evidence, or to cross-examine the prosecutor,
or to perfect a bill of exception. To hold
that, in the absence of a request to rebut or an objection to the refusal to
allow a rebuttal, a trial court errs by not stopping the proceeding and
specifically asking the defendant if he wishes to rebut the StateÂs allegations
before ruling on a Batson[1]
motion is something we will not do.Â
It makes no sense to say that a party is not
required to bring to the attention of the trial court a request to allow a
rebuttal of the StateÂs race neutral reasons before bringing an issue on
appeal. This is similar to the situation
when a defendant is about to be adjudicated upon a StateÂs motion to
proceed. The defendant is entitled to a
separate punishment hearing but waives any complaint about the courtÂs failure
to have such a hearing absent a timely complaint brought to the trial courtÂs
attention. See Vidaurri v. State, 49
S.W.3d 880, 885-886 (Tex.
Crim. App. 2001). In Vidaurri, the defendant asserted he
should not be bound by the preservation of error requirement because Âhe was
sentenced immediately after being adjudicated guilty, leaving no time to lodge
an objection.ÂÂ Id. at 885.Â
The Court of Criminal Appeals held that VidaurriÂs issue had not been
preserved for review. Id. at 886-887.Â
Likewise, a defendant who raises a Batson
claim at trial forfeits his opportunity to complain on appeal about what his
response to the StateÂs race neutral reasons would have been when he fails to
timely present his evidence in rebuttal of the StateÂs race neutral reasons or
object to the trial courtÂs refusal to let him do so. Tex.
R. App. P. 33.1.Â
HillÂs second issue is not preserved and
presents nothing for review.
         The
trial courtÂs judgment is affirmed.
Â
                                                                  TOM
GRAY
                                                                  Chief
Justice
Â
Before
Chief Justice Gray,
         Justice Vance, and
         Justice Reyna
Affirmed
Opinion
delivered and filed January 26, 2005
Do
not publish
[CRPM]
Â
[1] Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1013042/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2040
PETER HAHN,
Plaintiff - Appellant,
versus
WILLIAMSBURG/JAMES CITY COUNTY PUBLIC SCHOOLS,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Tommy E. Miller, Magistrate
Judge. (CA-02-156)
Submitted: March 15, 2004 Decided: April 5, 2004
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan H. Walker, MASON, MASON, WALKER & HEDRICK, P.C., Newport
News, Virginia, for Appellant. Nicolas R. Foster, John R. Porter,
III, CARR & PORTER, L.L.C., Portsmouth, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Peter Hahn appeals the magistrate judge’s order granting
Defendant’s motion for summary judgment on his claims under the
Americans with Disabilities Act and the Rehabilitation Act.* We
have reviewed the record and find no reversible error.
Accordingly, we affirm on the reasoning of the district court. See
Hahn v. Williamsburg/James City County Pub. Sch., No. CA-02-156
(E.D. Va. Aug. 14, 2003). We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
The parties consented to the jurisdiction of the magistrate
judge pursuant to 28 U.S.C. § 636(c) (2000).
- 2 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3062405/ | IN THE COURT OF APPEALS OF IOWA
No. 14-1798
Filed October 14, 2015
IN RE THE MARRIAGE OF PETER A. EIKAMP
AND LISA EIKAMP
Upon the Petition of
PETER A. EIKAMP,
Petitioner-Appellant/Cross-Appellee,
And Concerning
LISA EIKAMP,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Michael J. Moon,
Judge.
Peter Eikamp appeals, and Lisa Eikamp cross-appeals, from a
modification order. AFFIRMED AS MODIFIED AND REMANDED.
Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellant.
Christy R. Liss of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
Heard by Doyle, P.J., Eisenhauer, S.J.,* and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
EISENHAUER, Senior Judge.
Peter Eikamp appeals the denial of his petition to modify the child custody
and support provisions of the decree dissolving his marriage to Lisa Eikamp. He
contends joint physical care is not in the children’s best interests. On cross,
appeal, Lisa contends the court erred in calculating Peter’s child-support
obligation when it granted her counterclaim for modification. Lisa also requests
she be awarded appellate attorney fees.
I. Background Facts and Proceedings.
The parties’ marriage was dissolved in May 2013. The decree dissolving
the marriage incorporates the parties’ stipulation regarding the issues to be
determined in the dissolution proceeding. Among other things, the parties
stipulated to joint physical care of their three minor children and agreed neither
party would pay child support. While the stipulation states the parties anticipated
“they will each have the children approximately 50% of the time,” neither the
stipulation nor the dissolution decree further specify the terms of custody
arrangement.
Although the parties envisioned splitting time with the children, this did not
happen immediately following the dissolution. Exactly what occurred between
June and November 2013 is unclear. Peter testified the children resided
primarily with him in the months following the dissolution and he occasionally
stayed at Lisa’s apartment when the children were in her care at her request. In
his version of events, he assumed the role of primary caretaker because Lisa
was experiencing emotional difficulties and instability in the wake of the divorce.
He agreed they stayed at each other’s residences with the children on occasion,
3
but stated this was because Lisa did not want the responsibility of the having the
children on her own.
In contrast, Lisa testified she was not struggling prior to November 2013.
In her version of events, the parties continued to reside together with the children
following the dissolution even though she obtained an apartment. According to
Lisa, she primarily stayed with Peter and the children at the marital residence,
although occasionally they stayed at her apartment. Lisa admits Peter was never
clear about the status of their relationship following the divorce but she believed
they “had the probability of getting back together.”
What is clear is that things changed for the worse in November 2013.
Peter’s grandmother passed away, and he did not allow Lisa to attend the
funeral. At that point, Lisa realized her relationship with Peter was over and, in
her own words, “things kind of started to spiral down.” Lisa began to engage in
self-harming behavior by cutting herself, and concerns were expressed regarding
her suicidal ideation and alcohol use.
Lisa was voluntarily admitted to Covenant Medical Center for observation
in November 2013 and discharged two days later. She was prescribed
medication but believes she was overmedicated. She did not feel like herself,
and her self-harming behavior worsened. Because she did not feel stable upon
discharge, Lisa did not exercise her full rights under the child custody provisions
of the decree. Instead, she limited the time she spent with the children to visits
supervised by her parents.
Lisa was hospitalized again in January 2014 after she lost control of her
car during a snowstorm and drove into a ditch. The sheriff’s deputy who assisted
4
Lisa was concerned she was a danger to herself and took her to Covenant
Medical Center. Lisa was admitted for observation and discharged the next day.
Lisa was admitted to Covenant Medical Center a third time in February
2014 after going to Peter’s house at 10:00 p.m., intoxicated and bleeding from a
self-inflicted cut on her arm. Lisa remained at Covenant for one week before she
was discharged. Upon her discharge, she changed psychiatrists and medication
and began feeling better.
On the night of March 8, 2014, Lisa went to Peter’s home, where the
children were staying. She was distraught because Peter had not returned her
telephone calls or text messages for more than two hours. While at the home,
she took a knife from the kitchen and held it to her chest, threatening suicide.
Although Peter took the knife from her, two of the children heard Lisa tell Peter to
give her keys back so she could go kill herself. Lisa returned home and called
law enforcement to falsely report Peter had physically assaulted her. Lisa was
arrested one week later and charged with two counts of child endangerment. At
the time of trial, those charges were still pending.
On March 14, 2014, Peter filed a petition seeking to modify the child
custody and support provisions of the dissolution decree, requesting he be
granted physical care of the children. Lisa counterclaimed seeking modification
of the provisions of the decree relating to child support, medical support, and the
postsecondary education subsidy.
After Peter filed the petition to modify, Lisa requested the child custody
provisions of the decree be implemented. Since then, the parties have alternated
physical care of the children on a weekly basis.
5
The matter came to a trial in October 2014. The district court entered its
order two days later. It dismissed Peter’s petition to modify, sustained Lisa’s
counterclaims to modify the child-support obligation and postsecondary
education subsidy, and awarded Lisa $2500 in attorney fees. Peter filed a timely
notice of appeal.
II. Scope and Standard of Review.
We review modification rulings de novo. See Iowa R. App. P. 6.907.
Although we make our own findings of fact, we give weight to the trial court’s
findings regarding witness credibility but are not bound by them. Iowa R. App.
P. 6.904(3)(g). Our overriding consideration is the children’s best interests. Iowa
R. App. P. 6.904(3)(o).
III. Modification of Child Custody.
Peter appeals the portion of the order dismissing his petition to modify the
child custody and support provisions of the decree. As is often said, “once
custody of children has been fixed it should be disturbed only for the most cogent
reasons.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
“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 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 wellbeing.”
Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
6
Peter contends that since the decree was entered, “Lisa undertook a
pattern of disruptive and unsafe behavior that severely impaired her ability to
parent her children in the role of joint custodian.” We agree Lisa’s ability to
parent the children was impaired by her mental health. However, as the district
court found, the changes in Lisa’s behavior “were temporary in nature and not
permanent or continuous.” There is no evidence of any mental health issues that
impaired Lisa’s ability to parent before November 2013. At the time of trial, Lisa
testified she was taking medication for depression and anxiety, but no evidence
of Lisa’s current mental health diagnosis or how it impairs her ability to safely and
effectively parent the children was offered or received. Rather, in the six months
leading up to trial, the children were in Lisa’s care every other week. At trial,
Peter agreed Lisa was currently caring for the children appropriately and the
children had not been placed in harm’s way due to Lisa’s recent behavior. The
parties were able to co-parent effectively during this period, with both parents
communicating regarding the children’s activities and their welfare.
When looking at Lisa’s behavior throughout the children’s lives, it appears
the four-month period from November 2013 until March 2014 was an anomaly.
With the right dose of the right medication and therapy to address Lisa’s
underlying depression and anxiety, she is again providing the quality care for the
children she provided during the marriage. The change exhibited between
November 2013 and into March 2014 was temporary, rather than permanent.
Because the evidence does not support Peter’s claim this is a permanent
change, we need not address the question of whether Peter has an ability to
minister more effectively to the children’s well-being. See In re Marriage of
7
Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000) (noting that in addition to
proving a substantial change of circumstances supporting modification, the
moving party “must also prove . . . an ability to minister more effectively to the
well-being of the parties’ children”). We affirm the dismissal of Peter’s petition to
modify the dissolution decree.
IV. Modification of Child Support.
On cross-appeal, Lisa contends the district court erred in calculating the
amount of Peter’s child support obligation. She also requests Peter’s child
support obligation begin on July 15, 2014, rather than on November 1, 2014, as
ordered by the district court.
While the child support provisions of a dissolution decree are typically final
as to the circumstances existing at the time of dissolution, the court may modify
child support when there has been a substantial change in circumstances. Iowa
Code § 598.21C(1) (2013). In determining whether there has been a substantial
change in circumstances, we consider all relevant factors, “including changes in
employment, income, earning capacity, health, and medical expenses of a party.
Of course, the changed circumstances must be material and substantial,
essentially permanent, and not within the contemplation of the court at the time of
the decree.” In re Marriage of Sisson, 843 N.W.2d 866, 870-71 (Iowa 2014)
(citation omitted). A substantial change exists if “the court order for child support
varies by ten percent or more from the amount which would be due pursuant to
the most current child support guidelines.” Iowa Code § 598.21C(2)(a).
There is nothing in the record of the dissolution proceedings regarding the
parties’ earnings at the time of dissolution. However, the evidence presented at
8
the modification hearing clearly shows the disparity in the parties’ earnings at the
time of dissolution would have required Peter to pay Lisa child support under the
child support guidelines. While Lisa agreed to forgo child support in the parties’
stipulation,1 which was incorporated into the dissolution decree, “[p]arents cannot
lightly contract away or otherwise modify child support obligations.” In re
Marriage of Mihm, 842 N.W.2d 378, 384 (Iowa 2014).
A variation from child support guidelines is prohibited “‘without a record or
written finding, based on stated reasons, that the guidelines would be unjust or
inappropriate.’” Id. at 385 (quoting Iowa Code § 598.21B(2)(d)).
If the parties want the district court to deviate from the child support
guidelines, and also want to avoid subsequent modification of that
award based on an evaluation of changed circumstances or the ten
percent deviation, counsel and the district court need to insure that
the dissolution decree explains the reasons for the deviation and
that those reasons are factually and legally valid. Absent
compliance with the statute and our rules, there is no reason to
assume that the initial child support amount set forth in the decree
has any proper basis, or that it should be used as the basis for
subsequent modification proceedings.
Id. (citations omitted).
Here, neither the stipulation nor the dissolution decree provides any
reason for a variation from the child support guidelines. The parties’ stipulation
merely states “[t]hat based upon the respective income of the parties and the
joint physical care arrangement, no child support shall be paid from one person
to the other.” Because there was no basis for the decree to deviate from the
child support guidelines, it is not a proper basis on which to base a decision on
modification of child support. See id. at 386. Therefore, we may modify if a
1
Lisa was not represented in the dissolution proceedings.
9
substantial change in circumstances since the entry of the underlying decree
warrants modification of child support. Id. This includes a modification based on
Iowa Code section 598.21C(2)(a) for a variance of “ten percent or more from the
amount which would be due pursuant to the most current child support
guidelines.” Peter does not contest there is a variation of more than ten percent
from the child support awarded in the decree to what he would pay under the
guidelines.
The only question presented to us in this appeal is the amount of the
parties’ income and the date Peter’s child support obligation should begin. For
purposes of calculating child support, the district court determined Peter’s annual
income to be $108,000 and Lisa’s to be $30,000, making Peter’s monthly child
support obligation $1210.25 and Lisa’s obligation $416.12. The court ordered
Peter to pay Lisa the $794.13 difference in obligations each month, with
payments beginning on November 1, 2014.
Lisa argues it is unreasonable and inequitable to impute a $30,000 annual
income to her based on her business’s earnings. She claims the business only
earned that much in 2012 when the parties were married and Peter’s farm
income was infused into her business. She further claims the 2012 earnings
were atypical and every other year the business “had usually been in the red
from its inception in 2006.” She asks this court to recalculate the child support
obligation using what she estimated to be her 2014 expected income of $12,000
or a three-year average of income from 2012 through 2014 in the amount of
$18,230.
10
In 2012, Lisa’s business had its best year, earning $32,232. In 2013, she
earned only $10,460. Between January 1 and October 9 of 2014, Lisa had
earned $15,285.21. Extrapolating earnings from this figure, the court estimated
her 2014 earnings were expected to be $20,380. We find this $20,380 figure to
be the proper basis on which to calculate Lisa’s child support obligation.
Lisa also argues the court erred in finding Peter’s annual income is
$108,000. Peter is employed as an insurance agent. Before April 2014, he
received a monthly income plus commissions and bonuses for his work. In April
2014, his salary structure changed to increase his monthly salary to $9000 but
eliminate commissions and bonuses.
In 2013, he earned approximately $102,957 as an insurance agent. 2
Beginning in April 2014, his annual salary is $108,000. Peter received $7003.48
in bonuses and $783.76 in commissions in 2014 before his salary structure
changed. Lisa argues Peter’s 2014 salary should be estimated at $125,000 to
include any bonuses and commissions he earned before April of that year.
However, the bonuses and commissions were received when Peter earned a
lower salary; the higher salary Peter now earns compensates him for the lack of
bonus and commissions. It would be misrepresentative to attribute to Peter the
higher salary earned after April 2014 for the entirety of 2014, and add to it the
bonuses and commissions Peter received prior to April 2014 when he was
earning a lower salary. We concur in the district court’s finding Peter’s annual
salary is $108,000.
2
During the marriage, Peter also farmed land owned by Lisa’s grandfather. Because he
ceased this work when the parties divorced, a discussion of Peter’s farming income is
not relevant.
11
We modify the child support provisions to provide Peter should pay as his
child support obligation the difference between the amount of child support due
and owing from him as calculated by the district court in the modification order
and the amount due and owing from Lisa based upon an annual income of
$20,380. We remand to the district court to calculate Peter’s child support
obligation consistent with this opinion.
Lisa also contends the court erred in ordering the child support obligation
begin on November 1, 2014. She requests this court modify the order to provide
it begin on July 15, 2014. “The trial court has the discretion to decide if child
support payments will begin from the petition filing date or from the date of the
modification order.” In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.
App. 1992). Finding no abuse of discretion, we affirm the portion of the order
requiring child support to begin on November 1, 2014.
V. Appellate Attorney Fees.
Finally, Lisa requests we award her $4000 in appellate attorney fees and
tax the costs of the appeal to Peter. The decision to award appellate attorney
fees is within this court’s discretion. See Iowa Code § 598.36. In making this
decision, we consider the needs of the party requesting appellate attorney fees,
the ability of the other party to pay, and whether the party was obligated to
defend the trial court’s decision on appeal. In re Marriage of Krone, 530 N.W.2d
468, 472 (Iowa Ct. App. 1995).
Because Peter earns significantly more than Lisa and Lisa was obligated
to defend the court’s child custody determination on appeal, we award Lisa
$4000 in appellate attorney fees.
12
VI. Conclusion.
We affirm the order denying Peter’s petition to modify child custody and
granting Lisa’s counterclaim for modification of child support. We modify the
child support calculation and remand. We do not retain jurisdiction. Costs of this
appeal are taxed to Peter.
AFFIRMED AS MODIFIED AND REMANDED. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2998792/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006*
Decided February 6, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-3824
Appeal from the United States
LARRY R. HOLMAN, District Court for the Eastern
Plaintiff-Appellant, District of Wisconsin.
v. Nos. 04 C 792 & 05 C 9
ELSA HORN, ROMAN KAPLAN, William C. Griesbach,
JAMES GREER, et al., Judge.
Defendants-Appellees.
ORDER
In these consolidated cases under 42 U.S.C. § 1983 and Wisconsin state law,
inmate Larry Holman claimed that he had been denied proper medical care while
housed at Kettle Morraine and Oshkosh Correctional Institutions (“KMCI” and
“OCI”). Specifically, Holman claimed that prison physicians violated the Eighth
Amendment and state law when they ignored gastrointestinal bleeding caused by
prescribed medicines. He also claimed that he had been denied treatment for
Hepatitis C in violation of the Eighth Amendment and the Equal Protection Clause.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3824 Page 2
The district court granted summary judgment for the defendants. For the reasons
set forth in this order, we affirm the judgment of the district court.
The district court accepted the following facts from the defendants’ proposed
factual findings because Holman had failed to conform his fact statements to Local
Rule 56.2. Holman suffers from Hepatitis C, peptic ulcers, and asthma. A year after
he arrived at KMCI, his ulcers caused gastrointestinal bleeding that required
hospitalization. A hospital physician recommended that he stop taking theophylline,
an asthma medication, “given its association with his upper GI bleed.” Dr. Horn, an
internist and gastroenterologist at KMCI, immediately prescribed a different inhaler
for Holman.
About a year later, Holman submitted a request for medical services; he
complained of light red blood in his stool and expressed concern that his ulcers were
again causing gastrointestinal bleeding. Dr. Horn responded to the request, thought
the cause of the bleeding might be hemorrhoids and instructed a nurse to examine
Holman. Dr. Horn determined that his ulcers could not have caused the bleeding
because they would produce, not red, but black blood in the stool. A month later
Holman complained of an upset stomach that he feared was due to gastrointestinal
bleeding, but a prison physician examined him and found nothing unusual.
A short time later, Holman was transferred to OCI. During the 17 months of
his confinement there, he was seen by medical staff more than 60 times. Medical staff
also arranged for the evaluation of his hepatitis C condition at the University of
Wisconsin Hospital. X-rays taken at the hospital revealed that Holman had lesions on
his liver, which Dr. Horn believed to be consistent with his history of alcohol and drug
abuse while suffering from hepatitis C. Deanna Nakada, a physicians assistant at the
hospital, recommended a liver biopsy to assess the severity of the lesions. OCI doctors
approved the procedure, which revealed minimal inflation and “stage 0 fibrosis”--a
rating that indicates a complete absence of liver scarring. Nakada recommended
against hepatitis C treatment because, for patients whose biopsies reveal fibrosis less
advanced than stage 2, she considered the potential benefits outweighed by the high
cost and toxic side-effects which are similar to those from chemotherapy. The
Wisconsin Department of Corrections (“WDOC”) guidelines likewise provide for
hepatitis C treatment only for patients with fibrosis of stage-2 or greater. In
accordance with DOC’s guidelines, Holman’s request for some form of hepatitis C
treatment was denied by OCI’s medical director.
Holman then sued Dr. Horn, Nakada, the OCI physicians, nurses, and
administrators. Alleging violations of the Eighth Amendment and state malpractice
law, he claimed that these individuals had ignored the gastrointestinal bleeding
caused by medications which they had prescribed. He also claimed that the
No. 05-3824 Page 3
defendants’ refusal to treat his hepatitis C condition constituted deliberate
indifference and denied him equal protection because white inmates with comparably
advanced hepatitis C had received treatment, while he, a black inmate, had not.
The court granted summary judgment for the defendants. It determined that
Holman lacked any evidence that the defendants were deliberately indifferent to his
medical needs. The court acknowledged that Holman had serious health problems,
but these ailments resulted from his preexisting physical condition rather than from
the defendants’ treatment. Indeed, the court observed that the record reflected
“great solicitude” for Holman’s needs on the part of the defendants. As for Holman’s
equal protection claim, the court stated that “[n]ot one shred of evidence suggested
that race played any role in Holman’s treatment.” Finally, the court concluded that
Holman could not establish medical malpractice because he offered no medical
expert’s opinion, which is necessary in Wisconsin to establish the requisite standard
of care.
On appeal, Holman first contends that the district court erred in granting
summary judgment on his claim that the defendants were deliberately indifferent in
prescribing medication that caused gastrointestinal bleeding. He submits that there
was evidence that theophylline caused him gastrointestinal bleeding and should never
have been prescribed. He points to the attending physician’s note during his
hospitalization. That note recommended that theophylline be discontinued “given its
association with his upper GI bleed.” Holman admits that he was immediately taken
off theophylline, but believes that the note establishes that theophylline should never
have been prescribed. However, even if, as Holman believes, this clinical note could
establish that he should never have received theophylline due to the risk of
gastrointestinal bleeding, he lacked any evidence that the defendants knew of an
unacceptable risk and consciously disregarded it. See Estate of Cole Pardue v. Fromm,
94 F.3d 254, 259 (7th Cir. 1996) (deliberate indifference requires more than a showing
of medical malpractice).
Second, Holman submits that summary judgment was improper on his claim
that Dr. Horn was deliberately indifferent when she was told that his ulcers were
bleeding again. Dr. Horn thought the bleeding was hemorrhoidal, given the color of
the discharge, and accordingly ordered a nurse to examine him for hemorrhoids.
Holman admits that Dr. Horn thought the bleeding was hemorrhoidal and thus
cannot show that she acted with deliberate indifference. See Gil v. Reed, 381 F.3d
649, 661 (7th Cir. 2004).
Third, Holman contends that the court erred in granting summary judgment
on his claim that Dr. Horn committed medical malpractice in prescribing
theophylline. Pointing to a letter from Mary Powers, he disputes the court’s finding
No. 05-3824 Page 4
that he lacked a medical expert’s opinion, as required in Wisconsin, see Gil, 381 F.3d
at 659. Powers identifies herself as “Poison Control Supervisor” for Children’s
Hospital of Wisconsin and states that long-term usage of Theophylline can cause the
stomach lining to bleed. Even if this letter qualified as expert testimony, it gives no
opinion related to Dr. Horn’s standard of care in prescribing theophylline for a patient
in Holman’s circumstances. See id. at 659.
Finally, Holman generally contends that the court abused its discretion in
denying his motion to serve the defendants with 25 additional interrogatories which,
he believes, would have allowed him to establish his equal protection claim. The
district court denied the motion, finding the proposed questions unreasonably
cumulative. See Fed. R. Civ. P. 26(b)(2). Holman does not dispute that
determination. Moreover, he has not shown actual prejudice from his inability to
serve the additional questions. See Packman v. Chicago Tribune Co., 267 F.3d 628,
646 (7th Cir. 2001).
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/128829/ | 538 U.S. 971
McDANIELSv.UNITED STATES.
No. 02-9452.
Supreme Court of United States.
April 7, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
2
C. A. 6th Cir. Certiorari denied. Reported below: 302 F. 3d 384. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3062414/ | IN THE COURT OF APPEALS OF IOWA
No. 14-1385
Filed October 14, 2015
CANDACE H. SEAMAN, Deceased,
By PAUL J. SEAMAN, Her Husband,
Individually and as Administrator of
The Estate of CANDACE H. SEAMAN,
Petitioner-Appellant,
vs.
BURGESS HEALTH CENTER and
FARM BUREAU MUTUAL INSURANCE
COMPANY,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.
Petitioner appeals from ruling on petition for judicial review affirming the
denial of workers’ compensation benefits. AFFIRMED.
Sarah K. Kleber and Joel D. Vos of Heidman Law Firm, L.L.P., Sioux City,
for appellant.
Paul S. Swinton of Parker & McNeill, P.L.L.C., West Des Moines, for
appellees.
Heard by Potterfield, P.J., McDonald, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
MCDONALD, Judge.
Candace Seaman was employed by Burgess Health Center as a mental
health therapist/social worker. By all accounts, she was a good and dedicated
employee. Her work consisted of treating clients at her office in Burgess’s
facilities and preparing reports of the same. On January 25, 2010, Mrs. Seaman
was injured in a multiple vehicle car accident during the drive from her home in
Sioux City to her workplace in Onawa. She died as a result of injuries sustained
during the accident. Her spouse, individually and on behalf of her estate, sought
workers’ compensation burial expense and death benefits. The agency found
Mrs. Seaman’s death did not arise out of and in the course of her employment
and denied the claim. The district court affirmed the agency’s decision.
I.
Chapter 17A of the Iowa Code governs our review of workers’
compensation cases. See Iowa Code chapter 17A (2013); Mike Brooks, Inc. v.
House, 843 N.W.2d 885, 888 (Iowa 2014). “On appeal, we apply the standards
of chapter 17A to determine whether we reach the same conclusions as the
district court. If we reach the same conclusions, we affirm; otherwise we may
reverse.” Mike Brooks, Inc., 843 N.W.2d at 889.
“In determining the proper standard of review, we must first identify the
nature of the claimed basis for reversal of the Commissioner’s decision.”
Lakeside Casino v. Blue, 743 N.W.2d 169, 173 (Iowa 2007). Whether the
employee’s injury arose out of her employment is a mixed question of law and
fact. See id. “The factual aspect of this decision requires the Commissioner to
3
determine ‘the operative events that [gave] rise to the injury.’” Id. (quoting Meyer
v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006)). “Once the facts are determined,
a legal question remains: ‘Whether the facts, as determined, support a
conclusion that the injury arose out of . . . the employment,’ under our workers’
compensation statute.” Id. (quoting Meyer, 710 N.W.2d at 218) (citations
omitted).
Our court is bound by the factual determinations of the commissioner “if
they are supported by substantial evidence in the record before the court when
the record is viewed as a whole.” Mike Brooks, Inc., 843 N.W.2d at 889 (citations
omitted). Substantial evidence is “the quantity and quality of evidence that would
be deemed sufficient by a neutral, detached, and reasonable person, to establish
the fact at issue when the consequences resulting from the establishment of that
fact are understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(1). “Evidence is not insubstantial merely because different
conclusions may be drawn from the evidence.” Cedar Rapids Cmty. Sch. Dist. v.
Pease, 807 N.W.2d 839, 845 (Iowa 2011). “On appeal, our task ‘is not to
determine whether the evidence supports a different finding; rather, our task is to
determine whether substantial evidence . . . supports the findings actually
made.’” Mike Brooks, Inc., 843 N.W.2d at 889 (quoting Cedar Rapids Cmty. Sch.
Dist., 807 N.W.2d at 845).
Our review of the agency’s legal determinations is variable. The
legislature has not clearly vested the interpretation of workers’ compensation
statutes in the discretion of the agency. See Lakeside Casino, 743 N.W.2d at
4
173. We thus afford no deference to the agency’s interpretation of law, and we
are free to substitute our own legal judgment. See id. “On the other hand,
application of the workers’ compensation law to the facts as found by the
Commissioner is clearly vested in the Commissioner. Therefore, we may reverse
the Commissioner’s application of the law to the facts only if it is irrational,
illogical, or wholly unjustifiable.” Id. (citation omitted).
II.
It is the claimant’s burden to prove the injury or death arose out of and in
the course of employment. See Iowa Code § 85.61(7); Waterhouse Water
Conditioning Inc. v. Waterhouse, 561 N.W.2d 55, 57 (Iowa 1997); Great Rivers
Med. Ctr. v. Vickers, 753 N.W.2d 570, 574 (Iowa Ct. App. 2008). We liberally
construe the statutory text to comply with the spirit and the letter of the law, which
is to provide compensation to covered employees for covered injuries. See
Farmers Elevator Co., Kingsley v. Manning, 286 N.W.2d 174, 177 (Iowa 1979);
Golay v. Keister Lumber Co., 175 N.W.2d 385, 387-88 (Iowa 1970) (“The
workmen’s compensation statutes are to be given a broad and liberal
construction to comply with the spirit as well as the letter of the law.”). “An injury
in the course of employment embraces all injuries received while employed in
furthering the employer’s business and injuries received on the employer’s
premises . . . .” Farmers Elevator Co., Kingsley, 286 N.W.2d at 177 (quoting
Bushing v. Iowa Ry. & Light Co., 226 N.W. 719, 723 (Iowa 1929)). There must
be a causal connection between the injury and the course of employment as “[it]
5
relates to the time, place and circumstances of the accident.” Golay, 175 N.W.2d
at 387; see Waterhouse Water Conditioning, Inc., 561 N.W.2d at 57.
Typically, an employee’s work commences when she arrives at her
workplace; the employee is engaged in her own business while traveling to work.
See Pribyl v. Standard Elec. Co., 67 N.W.2d 438, 442 (Iowa 1954). Thus, under
the going-and-coming rule, “absent special circumstances, injuries occurring off
the employer’s premises while the employee is on the way to or from work are
not compensable.” Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996)
(quotation omitted). The rule is “well established.” Great Rivers Med. Ctr., 753
N.W.2d at 574. There are several exceptions to the going-and-coming rule that
“extend the employer’s premises under certain circumstances.” Quaker Oats
Co., 552 N.W.2d at 151. These exceptions apply “when it would be unduly
restrictive to limit coverage of compensation statutes to the physical perimeters
of the employer’s premises.’” Id. (quotation omitted). The claimant contends
several exceptions apply here.
The claimant first contends Mrs. Seaman was performing a special errand
for Burgess at the time of her car accident. The special errand exception applies
when an employee is injured away from the employer’s premises during a special
errand or mission for their employer. See, e.g., id. at 151-53 (holding the special
errand exception applied when an “on-call” employee was paged to come to the
plant and was in an accident on his way home); Kyle v. Greene High Sch., 226
N.W. 71, 72-73 (Iowa 1929) (finding special errand existed when janitor drove to
school to help the principal turn on the gym lights); but see Bulman v. Sanitary
6
Farm Dairies, 73 N.W.2d 27, 28-30 (holding relief truck driver was not on a
“special mission” when driving home from performing another person’s route and
after drinking); Great Rivers Med. Ctr., 753 N.W.2d at 572, 575-77 (finding no
special mission when nurse was expected to show up for work and was killed on
her way home after being released from work for illness). The relevant inquiry is
“whose business was [the employee] pursuing at the time of the injury?” Quaker
Oats Co., 552 N.W.2d at 151-52 (alteration in original) (quoting Pribyl, 67 N.W.2d
at 442).
The claimant also contends the dual purpose exception applies to Mrs.
Seaman’s accident. The dual purpose exception applies when an employee is
injured off the employer’s premises while making a trip that serves both personal
and business purposes. See Golay, 175 N.W.2d at 388 (affirming workers’
compensation benefits for employee who was on a trip which combined a special
errand of “sufficient substance” for his employer and a non-compensable
purpose); Dorman v. Carroll Cnty., 316 N.W.2d 423, 424-25 (Iowa Ct. App. 1981)
(finding dual purpose doctrine applied when two deputy sheriffs on auxiliary duty
were killed, while driving under the influence to breakfast from their law
enforcement duty). “‘Injury during a trip which serves both a business and a
personal purpose is within the course of employment if the trip involves the
performance of a service for the employer which would have caused the trip to
be taken by someone even if it had not coincided with the personal journey.’”
Golay, 175 N.W.2d at 388 (quoting 1 Larson, The Law of Workmens’
Compensation, 294.3, § 18.00 (1965)).
7
The claimant argues the special errand or dual purpose of Mrs. Seaman’s
travel to work on the morning of her accident was the need to deliver her
completed patient reports to Burgess. In support of the contention, the claimant
argues the reports were time-sensitive and Mrs. Seaman would be subject to
discipline if she failed to deliver the reports. There is no evidence in this record
supporting the contention. The agency found “there [was] no factual basis in this
record to find that claimant was on a special errand at the time of her accident
and death on Interstate 29 while driving from her home to her place of
employment.” The agency found there was not a dual purpose for Mrs.
Seaman’s travel. The agency found the reports were not due that day. The
evidence showed Mrs. Seaman would not have suffered any adverse
consequences if she failed to deliver the reports to her employer that day. The
claimant admits the employer did not require Mrs. Seaman to report to work that
day. The agency’s findings are supported by substantial evidence and its
conclusions are not irrational, illogical, or wholly unjustifiable. See Lakeside
Casino, 743 N.W.2d at 173.
The claimant contends a third exception to the going and coming rule is
applicable here: the second business situs exception. The exception recognizes
that some travel to and from an employee’s home to the workplace may arise in
the course of employment where the employee’s home serves a secondary
office. See Emmanuel S. Tipon, Annotation, Right to Workers’ Compensation for
Injury Suffered by Worker En Route to or from Worker’s Home Where Home is
Claimed as “Work Situs,” 15 A.L.R. 6th 633 (2006). The agency recognized the
8
exception in Waterhouse v. Waterhouse Water Conditioning, Inc., No. 1039817,
1995 WL 17018379, at *5 (Iowa Workers’ Comp. Comm’n Feb. 23, 1995).
However, the Iowa Supreme Court did not reach the issue when the Waterhouse
case was on appellate review. See Waterhouse Water Conditioning, Inc., 561
N.W.2d at 60. Iowa courts have thus not explicitly adopted the exception. The
exception has been adopted in twenty-two states and the District of Columbia by
legislative action or judicial decision. See generally, Tipon, 15 A.L.R. 6th 633.
For example, in Kahn v. State, 289 N.W.2d 737, 739-40 (Minn. 1980), the
Minnesota Supreme Court awarded workers’ compensation benefits to an
assistant nursing professor who was traveling from work to her home to prepare
for her proposal presentation for a research grant. Kahn, 289 N.W.2d at 739-43.
The professor regularly worked at home on the grant because she was six
months pregnant. Id. at 739. The court concluded the professor’s home was a
work situs by the following criteria:
“When reliance is placed upon the status of the home as a place of
employment generally, instead of or in addition to the existence of a
specific work assignment at the end of the particular homeward trip,
three principal indicia may be looked for: the quantity and regularity
of work performed at home; the continuing presence of work
equipment at home; and special circumstances of the particular
employment that make it necessary and not merely personally
convenient to work at home.”
Id. at 743 (quoting 1 A. Larson, Workmen’s Compensation Law, § 18.32 (1978)).
The commissioner found Mrs. Seaman’s home was not a second work site
and concluded the second business situs exception was not applicable here.
Mrs. Seaman did some work at home in the evenings to complete her reports.
Her employer did have a telephonic dictation system, which would allow Mrs.
9
Seaman to dictate her notes from anywhere, including her office at Burgess or at
her home. The record is clear, however, that Mrs. Seaman’s home was not a
dedicated office space or secondary office space. Mrs. Seaman never saw
clients at her home. Further, Burgess never specifically directed her to work from
home. The employer did not expect her to work from home and did not provide
compensation for her work at home. The employer did not pay mileage or other
expenses associated with Mrs. Seaman’s commute. Burgess did not provide her
with any equipment for her home. The agency concluded: “Catching up on
occasional work at home or completing tasks at home that could be completed at
the employer’s premises is an insufficient basis to find that claimant had dual
employment premises.” The agency’s findings are supported by substantial
evidence and its conclusions are not irrational, illogical, or wholly unjustifiable.
See Lakeside Casino, 743 N.W.2d at 173.
III.
Applying the standards of chapter 17A, we reach the same conclusions as
the district court. For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3062415/ | IN THE COURT OF APPEALS OF IOWA
No. 14-1683
Filed October 14, 2015
ANGEL DEJESUS VEGA-SANCHEZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Gary McMinimee,
Judge.
The applicant appeals the district court’s grant of the State’s motion for
summary disposition of his postconviction-relief application. AFFIRMED.
Robert E. Peterson, Trout Creek, Michigan, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Jennifer Benson, County Attorney, and Joseph Tofilon, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., Bower, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
EISENHAUER, Senior Judge.
Angel Vega-Sanchez appeals the district court’s grant of the State’s
motion for summary disposition of his postconviction-relief application. We
conclude the district court properly granted summary disposition to the State
because the trial information was adequate to give Vega-Sanchez notice of the
crime charged and was properly approved by a judge. We also find Vega-
Sanchez has not shown he received ineffective assistance of counsel during the
postconviction-relief proceedings.
I. Background Facts & Proceedings.
Vega-Sanchez was convicted of first-degree murder and sentenced to life
in prison. His conviction was affirmed on appeal. State v. Vega-Sanchez,
No. 10-0116, 2011 WL 441677 (Iowa Ct. App. Feb. 9, 2011).
Vega-Sanchez filed his first application for postconviction relief on
June 22, 2011, claiming his right to contact the Mexican Consulate had been
violated. He also claimed he received ineffective assistance because his
defense counsel did not obtain an interpreter for him or call several witnesses.
The denial of Vega-Sanchez’s application for postconviction relief was affirmed
on appeal. Vega-Sanchez v. State, No. 12-0642, 2013 WL 2146544 (Iowa Ct.
App. May 15, 2013).
Vega-Sanchez filed the present application for postconviction relief on
October 21, 2013, claiming the district court did not have subject matter
jurisdiction over his criminal trial because the trial information was defective. The
State filed a motion for summary disposition. After a hearing, the district court
3
granted the motion to dismiss, finding the trial information was not erroneously
approved by the trial court. Vega-Sanchez now appeals.
II. Trial Information.
Vega-Sanchez claims the district court should not have denied his claims
in a summary disposition because they raised genuine issues of material fact.
He claims the court lacked subject matter jurisdiction because the trial
information did not contain sufficient evidence to support a judge’s determination
a jury could convict him. He also claims the trial information did not allege he
had the prerequisite state of mind to commit first-degree murder.
Iowa Code section 822.6 provides:
The court may grant a motion by either party for summary
disposition of the application, when it appears from the pleadings,
depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
“In determining whether summary judgment is warranted, the moving party has
the burden of proving the material facts are undisputed.” Castro v. State, 795
N.W.2d 789, 792 (Iowa 2011). “We examine the facts in the light most favorable
to the nonmoving party.” Id. Our review in postconviction-relief proceedings,
including those decided by a summary disposition, is for correction of errors at
law. Manning v. State, 654 N.W.2d 555, 558-59 (Iowa 2002).
The trial information in this case stated:
COMES NOW, . . . , as Assistant County Attorney for
Webster County, Iowa, and in the name and by the authority of the
State of Iowa accuses ANGEL DEJESUS VEGA-SANCHEZ of the
crime of MURDER IN THE FIRST DEGREE, committed as follows:
The said ANGEL DEJESUS VEGA-SANCHEZ, on or about
the 17th day of May, 2009, in Webster County, Iowa, did commit
4
Murder in the First Degree resulting in the death of Rachelle Vega,
in violation of sections 707.1 and 707.2(1) of the Code of Iowa (a
class A felony).
The minutes of evidence were attached to the information. The information was
approved by a judge with the statement, “This information and the Minutes of
Evidence accompanying it have been examined by me and found to contain
sufficient evidence, if unexplained, to warrant a conviction by jury trial.”
A trial information “shall be drawn and construed, in matters of substance,
as indictments are required to be drawn and construed.” Iowa R. Crim. P. 2.5(5).
“An indictment is a plain, concise, and definite statement of the offense charged.”
Id. 2.4(7); State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986).
Indictments and informations are generally short, plain, and concise. State v.
Amsden, 300 N.W.2d 882, 886 (Iowa 1981). There is no necessity to allege the
contents of the code section alleged to be violated; it is sufficient to allege the
transaction providing the basis for the offense and the section number of the
code. Id. The trial information should give the court and the accused notice of
what offense is intended to be charged. State v. McConnell, 178 N.W.2d 386,
388 (Iowa 1970). The trial information sufficiently alleges Vega-Sanchez
committed the first-degree murder of Rachelle Vega on or about May 17, 2009.
Before a trial information is filed, it must be approved by a judge or
magistrate. Iowa R. Crim. P. 2.5(4). “If the judge or magistrate finds that the
evidence contained in the information and minutes of evidence, if unexplained,
would warrant a conviction by the trial jury, the judge or magistrate shall approve
the information which shall be promptly filed.” Id. Vega-Sanchez has not shown
a judge improperly approved the trial information in this case. The judge’s
5
statement shows the trial information was approved after considering the trial
information and the minutes of evidence, in accordance with the procedures
found in rule 2.5(4).
We conclude the district court properly granted summary disposition to the
State because the court had subject matter jurisdiction as the trial information
was adequate to give Vega-Sanchez notice of the crime charged and was
properly approved by a judge.
III. Ineffective Assistance.
Vega-Sanchez asserts he received ineffective assistance because his
postconviction counsel did not file a resistance to the State’s motion for summary
disposition. We review claims of ineffective assistance of counsel de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of
ineffective assistance of counsel, an applicant must show (1) the attorney failed
to perform an essential duty and (2) prejudice resulted to the extent it denied the
applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
Vega-Sanchez has not shown he received ineffective assistance. After
considering his claims regarding the trial information, we have determined his
objections are meritless. “We do not find counsel incompetent for failing to
pursue a meritless issue.” State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013).
We affirm the decision of the district court granting the State’s motion for
summary disposition of Vega-Sanchez’s application for postconviction relief.
AFFIRMED. | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2757187/ | FILED
DEC 09 2011
1
SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-11-1156-HKiMk
)
6 CHRISTOPHER DOLAN OBMANN and ) Bk. No. 11-12906
REBECCA LYNN OBMANN, )
7 )
Debtors. )
8 _____________________________ )
)
9 SAN DIEGO COUNTY CREDIT UNION;)
THERESA HALLECK, )
10 )
Appellants, )
11 )
v. ) M E M O R A N D U M1
12 )
CHRISTOPHER DOLAN OBMANN; )
13 REBECCA LYNN OBMANN; )
CHRISTOPHER R. BARCLAY, )
14 Chapter 7 Trustee; UNITED )
STATES TRUSTEE, )
15 )
Appellees. )
16 _____________________________ )
17 Argued and Submitted on October 20, 2011
at San Diego, California
18
Filed - December 9, 2011
19
Appeal from the United States Bankruptcy Court
20 for the Central District of California
21 Honorable Catherine Bauer, Bankruptcy Judge, Presiding
22
Appearances: William Arthur Smelko, Esq. argued for the
23 Appellant, San Diego County Credit Union.
24
Before: HOLLOWELL, KIRSCHER and MARKELL, Bankruptcy Judges.
25
26 1
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
1 San Diego County Credit Union (SDCCU) appeals an order of
2 the bankruptcy court that (1) disapproved a reaffirmation
3 agreement that SDCCU entered into with the debtors, (2) ordered
4 SDCCU to accept the debtors’ payments, and (3) enjoined SDCCU
5 from repossessing its collateral so long as the debtors made
6 payments and otherwise fulfilled their obligations to SDCCU.
7 For the reasons given below, we AFFIRM the disapproval of
8 the reaffirmation agreement, but VACATE the portion of the
9 bankruptcy court’s order that requires SDCCU to accept payments
10 and refrain from exercising its state law contractual remedies.
11 I. FACTS
12 Christopher and Rebecca Obmann (the Debtors) filed a joint
13 petition for relief under chapter 72 on January 28, 2011. On
14 their bankruptcy schedules, the Debtors listed an $18,496.00
15 obligation to SDCCU secured by a 2004 Chevrolet Silverado
16 (Silverado). They also listed a $7,003.00 obligation to SDCCU
17 secured by a 2004 Nissan Frontier (Nissan). According to the
18 Debtors’ schedules I and J, they had a combined average monthly
19 income of $9,126.20 and expenditures of $9,938.00, which included
20 a $778.00 payment on the Silverado, as well as a $261.00 payment
21 on the Nissan.
22 Along with their schedules, the Debtors filed a Statement of
23 Intention with respect to the Silverado. On the Statement of
24 Intention form (Official Form 8), the Debtors checked the box
25
26 2
Unless otherwise indicated, all chapter and section
27 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
All Rule references are to the Federal Rules of Bankruptcy
28 Procedure, Rules 1001-9037.
-2-
1 indicating that they intended to retain the Silverado, but did
2 not check either the “Redeem the property” box or the “Reaffirm
3 the debt” box. Instead, the Debtors checked a box entitled
4 “Other” and wrote “Retain and pay pursuant to contract.” The
5 Debtors indicated the same intention with respect to the Nissan.
6 On February 3, 2011, the Debtors attempted to make a payment
7 on the Silverado under their loan agreement with SDCCU (the
8 Loan). At that time, the Debtors were already behind on the Loan
9 because they had failed, prepetition, to make their January
10 payment. Under the terms of the Loan, a filing of a bankruptcy
11 proceeding, as well as a failure to make any payment when due,
12 were events of default, entitling SDCCU to accelerate all payment
13 on the Loan and to exercise its state law rights against the
14 Silverado, including repossession.
15 SDCCU refused to accept the Debtors’ February 3, 2011,
16 payment on the Loan. It told the Debtors it would not accept
17 payments unless there was an enforceable reaffirmation agreement
18 in place. On February 8, 2011, the Debtors and SDCCU executed an
19 agreement to reaffirm the debt secured by the Silverado (the
20 Reaffirmation).3 The Reaffirmation reaffirmed the $13,495.58
21 remaining balance on the Silverado under the original terms of
22 the Loan. The Debtors listed the value of the Silverado as
23 $19,875.00. They filed the executed Reaffirmation with the
24 bankruptcy court on February 14, 2011.
25 The § 341 meeting of creditors was scheduled for March 9,
26
3
27 The Debtors filed a similar reaffirmation agreement for
the Nissan. The Debtors’ attorney did not represent them with
28 respect to either of the reaffirmation agreements.
-3-
1 2011. Also on March 9, 2011, the bankruptcy court held a hearing
2 on whether to approve the Reaffirmation (the Reaffirmation
3 Hearing). At the Reaffirmation Hearing, the bankruptcy court
4 expressed its concern that SDCCU, by refusing to accept payments,
5 was purposely forcing debtors into defaulting on their loans
6 until the court approved a reaffirmation agreement. It continued
7 the hearing to March 30, 2011, and entered an order requiring the
8 president and CEO of SDCCU, Teresa Halleck (the CEO), to appear:4
9 to explain its policies and procedures5 regarding
bankruptcy, since it appears that either the Credit
10 Union fundamentally misunderstands the purpose and
11 extent of the automatic stay and/or that it is
purposely forcing debtors into defaulting on their car
12 loans under some misconception that this Court will
then be forced to approve reaffirmation agreements that
13 are not advisable (especially in view of the forced
14 defaults) . . . .
15
16
4
17 On March 18, 2011, SDCCU filed an objection and an
emergency ex-parte motion to modify the order to appear and
18 excuse the CEO from appearing. The declaration from SDCCU,
19 attached to its motion, explained its policies, as well as the
Debtors’ history on the Loan, including the fact that the Debtors
20 were not current on their payments prior to filing bankruptcy.
On March 25, 2011, the bankruptcy court denied SDCCU’s ex-parte
21
motion. SDCCU and the CEO timely appealed. (BAP Nos. 11-1155,
22 11-1158). The BAP subsequently dismissed those appeals as moot
on June 9, 2011, because the CEO appeared and testified at the
23 hearing.
24 5
However, the bankruptcy court was aware of the reasons for
25 SDCCU’s policy because it had previously ordered SDCCU to appear
in other cases to explain why SDCCU refused customers’ payments
26 prior to approval of a reaffirmation agreement. SDCCU’s
27 Assistant Vice President of Legal Services previously appeared
before the bankruptcy court to testify about SDCCU’s
28 reaffirmation policy.
-4-
1 The Debtors appeared at the continued hearing but did not
2 testify. The CEO appeared and testified that SDCCU did not
3 accept customer payments unless there was an enforceable
4 agreement between the parties, otherwise she believed that SDCCU
5 risked having to return any payments made if there was not a
6 court-approved reaffirmation in effect. The CEO further
7 testified that SDCCU believed that a failure to obtain an
8 enforceable reaffirmation would compromise SDCCU’s future ability
9 to exercise its state law remedies.
10 The bankruptcy court disapproved the Reaffirmation as not in
11 the Debtors’ best interest because, despite reaffirming the debt,
12 they would still be exposed to potential repossession of the
13 Silverado due to payment defaults, which the bankruptcy court
14 apparently believed were solely the result of SDCCU’s refusal to
15 accept the Debtors’ postpetition payments. On March 31, 2011,
16 the bankruptcy court entered an order disapproving the
17 Reaffirmation (Reaffirmation Order).6
18 In its Reaffirmation Order, the bankruptcy court found that
19 the Reaffirmation posed an undue hardship on the Debtors and was
20 not in their best interest. Additionally, the Reaffirmation
21 Order stated that “SDCCU shall accept any and all payments that
22 Debtors are past due and shall have no right to repossess the
23
24 6
An identical order was entered denying reaffirmation on
25 the Nissan. SDCCU did not appeal that order. However, at least
one similar order that required SDCCU to be bound by the terms of
26 the original agreement with the debtor as long as the debtor made
27 payments, was entered by the bankruptcy court in a different case
and was appealed by SDCCU. That appeal became moot when the
28 collateral was surrendered, and was subsequently dismissed.
-5-
1 subject vehicle so long as Debtors make their payments, keep the
2 vehicle insured, and otherwise fulfill their obligations to
3 SDCCU.” SDCCU timely appealed.
4 II. JURISDICTION
5 The bankruptcy court had jurisdiction under 28 U.S.C.
6 § 157(b)(2)(O). We have jurisdiction under 28 U.S.C. § 158.
7 III. ISSUE
8 Did the bankruptcy court err in entering the Reaffirmation
9 Order?
10 IV. STANDARDS OF REVIEW
11 We review the bankruptcy court’s interpretation of the
12 Bankruptcy Code de novo. Bankr. Receivables Mgmt. v. Lopez
13 (In re Lopez), 274 B.R. 854, 859 (9th Cir. BAP 2002), aff’d,
14 345 F.3d 701 (9th Cir. 2003), cert. denied, 124 S.Ct. 2015
15 (2004); Dumont v. Ford Motor Credit Co. (In re Dumont),
16 383 B.R. 481, 484 (9th Cir. BAP 2008), aff’d, 581 F.3d 1104 (9th
17 Cir. 2009). The requisite procedure for issuing injunctions is a
18 question of law that we review de novo. Demos v. Brown
19 (In re Graves), 279 B.R. 266, 270 (9th Cir. BAP 2002).
20 Additionally, whether adequate due process was given in a
21 particular instance is a mixed question of law and fact that we
22 also review de novo. Id.
23 The bankruptcy court’s factual findings are reviewed for
24 clear error. United States v. Hinkson, 585 F.3d 1247, 1262-63
25 (9th Cir. 2009) (en banc). A factual finding is clearly
26 erroneous if it is illogical, implausible, or without support in
27 inferences that can be drawn from the facts in the record. Id.
28 at 1263.
-6-
1 V. DISCUSSION
2 An individual debtor in a chapter 7 case is required to
3 timely redeem, surrender, or reaffirm debts secured by personal
4 property. 11 U.S.C. § 521(a)(2). Section 521(a)(2) requires
5 that for every debt secured by personal property of the estate, a
6 debtor must file a statement of intention with respect to the
7 retention or surrender of the property. The debtor must file his
8 statement of intention within 30 days of the filing of a petition
9 or before the first date scheduled for the meeting of creditors,
10 whichever is earlier. When a debtor elects to retain the
11 property, he must specify in his statement of intention whether
12 he will redeem it or reaffirm the debt secured by the property.
13 11 U.S.C. § 521(a)(2)(A). Additionally, the debtor must perform
14 on his stated intention within 30-days of the § 341 meeting of
15 creditors. 11 U.S.C. § 521(a)(2)(B).
16 A failure to comply with the requirements of § 521(a)(2)(A)
17 and (B) results in the termination of the automatic stay “with
18 respect to personal property of the estate or of the debtor
19 securing in whole or in part a claim, . . . and such property
20 shall no longer be property of the estate.” 11 U.S.C.
21 § 362(h)(1); Samson v. W. Capital Partners, LLC (In re Blixseth),
22 454 B.R. 92 (9th Cir. BAP 2011) (the exception to the rule is if
23 on the bankruptcy trustee’s timely motion the bankruptcy court
24 determines the property is of consequential value to the estate).
25 In this case, the Debtors filed a statement of intention and
26 indicated that they intended to retain the Silverado. However,
27 the Debtor’s statement of intention did not state whether they
28 intended to redeem the Silverado or reaffirm the Loan.
-7-
1 Therefore, the Debtors failed to comply with § 362(h)(1)(A). See
2 e.g., In re Steinhaus, 349 B.R. 694, 701 (Bankr. D. Idaho 2006).
3 SDCCU argues, therefore, that the automatic stay terminated at
4 the time the bankruptcy court held the Reaffirmation Hearing.
5 Nevertheless, SDCCU concedes that the bankruptcy court had
6 jurisdiction to review the Reaffirmation. Consequently, we need
7 not decide whether the automatic stay was, in fact, terminated at
8 the time of the Reaffirmation Hearing, or, whether a debtor may
9 amend his original intention prior to the time he must perform on
10 that intention and thereby cure any previous defect. See e.g.,
11 In re Norton, 347 B.R. 291, 296-98 (Bankr. E.D. Tenn. 2006)
12 (finding termination of automatic stay could not occur until the
13 deadline of § 521(a)(2)(B) had passed); Arizona Fed. Credit Union
14 v. DeSalvo, 2009 WL 5322428 *3 (Bankr. S.D. Ga. 2009); In re
15 Bower, 2007 WL 2163472 *2 n.2 (Bankr. D. Or. 2007) (an improper
16 statement of intention can be “cured” by a timely filed
17 reaffirmation agreement); In re Baker, 390 B.R. 524, 529 (Bankr.
18 D. Del. 2008) (same).
19 Debtors may reaffirm dischargeable debts. 11 U.S.C. § 524.
20 However, in order to protect debtors from compromising their
21 fresh start by making unwise agreements to repay such debts, the
22 Bankruptcy Code sets out various procedures and requirements for
23 approval of reaffirmation agreements. Id.; Gordon v. Hines
24 (In re Hines), 147 F.3d 1185, 1190 (9th Cir. 1998); Rogers v.
25 NationsCredit Fin. Servs. Corp., 233 B.R. 98, 107 (N.D. Cal.
26 1999). These include requiring creditors to make detailed
27 disclosures of the legal ramifications of reaffirmation.
28 11 U.S.C. § 524(k). Additionally, when, as here, the debtor is
-8-
1 not represented by an attorney, the bankruptcy court must inform
2 the debtor that reaffirmation is not required, describe the legal
3 consequences of reaffirming a debt, and decide whether
4 reaffirmation is in the debtor’s best interest or poses an undue
5 hardship. 11 U.S.C. § 524(d), (c)(6).
6 Section 524(m)(1) raises a rebuttable presumption that a
7 reaffirmation agreement imposes an undue hardship on the debtor
8 when the debtor’s monthly income, less the debtor’s monthly
9 expenses, is less than the scheduled payments on the reaffirmed
10 debt. 11 U.S.C. § 524(m)(1). The bankruptcy court is required
11 to review all agreements, regardless of whether a debtor is
12 represented or appearing in pro se, when the presumption of undue
13 hardship exists; however, the presumption is waived when the
14 creditor of a reaffirmed debt is a credit union. 11 U.S.C.
15 § 524(m)(2).
16 Even though there was no presumption of undue hardship that
17 required rebuttal by the Debtors, because they were
18 unrepresented, the bankruptcy court was required to decide
19 whether the Reaffirmation imposed an undue hardship and was in
20 their best interest. 11 U.S.C. § 524(c)(6)(A)(i),(ii); Coastal
21 Fed. Credit Union v. Hardiman, 398 B.R. 161, 178 (E.D. N.C.
22 2008); In re Smith, 2011 WL 671994 *1 (Bankr. N.D. Iowa 2011);
23 In re Huskinson, 2008 WL 2388113 *2 n.7 (Bankr. N.D. Ohio 2008).
24 To that end, the bankruptcy court found that the payments on
25 the Silverado were large and that the Debtors’ expenses
26 significantly exceeded their income making it an undue hardship
27 on the Debtors. Furthermore, the bankruptcy court found it was
28 not in the Debtors’ best interest to reaffirm the debt because
-9-
1 there was no assurance that SDCCU would honor a purported verbal
2 agreement to work with the Debtors to cure any default, and
3 reaffirmation would make the Debtors personally liable for any
4 deficiency balance on the Loan.
5 These findings were supported by the record. The Debtors’
6 schedules demonstrated that their expenses significantly exceeded
7 their income. The record, including the testimony provided by
8 the CEO, demonstrated that the Debtors had defaulted on the Loan,
9 and that as a result of those defaults, SDCCU was entitled to
10 enforce its rights under the Loan. Accordingly, we perceive no
11 error in the bankruptcy court’s decision in disapproving the
12 Reaffirmation under § 524(c)(6)(A)(i) and (ii).
13 SDCCU contends that even though the bankruptcy court could
14 disapprove the Reaffirmation under § 524(c)(6)(A), it could not
15 enjoin SDCCU from enforcing its rights under the Loan. SDCCU
16 particularly assigns error to the bankruptcy court’s issuance of
17 an injunction without an adversary proceeding.
18 SDCCU contends that the issuance of injunctive relief and
19 declaratory relief may only result from an adversary proceeding.
20 Rule 7001, 7065. SDCCU relies on case authority where a
21 bankruptcy court was asked to grant injunctive relief. We agree
22 that in those situations, the request must procedurally be made
23 through an adversary proceeding. However, SDCCU’s premise that
24 an adversary proceeding is always required before an injunction
25 can by issued by a bankruptcy court is belied by the plain
26 ///
27 ///
28 ///
-10-
1 language of § 105(a)7, which allows the bankruptcy court to act
2 sua sponte to issue any order that is necessary to carry out the
3 provisions of the Bankruptcy Code. 11 U.S.C. § 105(a).
4 Therefore, “[i]njunctive relief is available in bankruptcy
5 court in two ways: pursuant to the court’s discretionary and
6 inherent equitable power under section 105(a) ‘to issue any
7 order, process, or judgment that is necessary or appropriate to
8 carry out the provisions of this title,’ or under the auspices of
9 Bankruptcy Rule 7065.” Rinard v. Positive Invest., Inc.
10 (In re Rinard), 451 B.R. 12, 22 (Bankr. C.D. Cal. 2011); Eisen v.
11 Golden (In re Eisen), 2006 WL 6810928 (9th Cir. BAP 2006)
12 (unpublished).
13 The bankruptcy court did not cite to § 105(a) as the basis
14 of its authority, but we presume that it relied on its equitable
15 powers when it required SDCCU to accept payments and to suspend
16 its state law contractual rights to the Silverado. While
17 § 105(a) permits the bankruptcy court to impose injunctions,
18 there are limitations on that power. In re Graves, 279 B.R. 266
19 at 274. First, when acting in a matter that ordinarily requires
20 an adversary proceeding, the bankruptcy court must assure that
21
7
22 Section 105(a) provides that:
23 [t]he court may issue any order, process, or judgment
that is necessary or appropriate to carry out the
24
provisions of this title. No provision of this title
25 providing for the raising of an issue by a party in
interest shall be construed to preclude the court from,
26 sua sponte, taking any action or making any
27 determination necessary or appropriate to enforce or
implement court orders or rules, or to prevent an abuse
28 of process.
-11-
1 the defendant is afforded the procedural protection of due
2 process. Id. at 272. Second, the remedy must conform to the
3 objectives of the Bankruptcy Code. Id.; Beck v. Fort James Corp.
4 (In re Crown Vantage, Inc.), 421 F.3d 963, 975 (9th Cir. 2005).
5 Due process requires a notice and an opportunity to be
6 heard. Tennant v. Rojas (In re Tennant), 318 B.R. 860, 870 (9th
7 Cir. BAP 2004). “Notice and an opportunity to be heard” is a
8 flexible concept that depends on what is appropriate in the
9 particular circumstance. Id. At a minimum, however, notice must
10 be “reasonably calculated, under all of the circumstances, to
11 apprise interested parties of the pendency of the action and
12 afford them an opportunity to present their objections.” Mullane
13 v. Central Hanover Bank & Trust, Co., 339 U.S. 306, 314 (1956).
14 Here, SDCCU was provided notice of the bankruptcy court’s concern
15 that SDCCU misunderstood “the purpose and extent of the automatic
16 stay and/or that it is purposely forcing debtors into defaulting
17 on their car loans under some misconception that this Court will
18 then be forced to approve reaffirmation agreements that are not
19 advisable (especially in view of the forced defaults).” SDCCU
20 was given the opportunity to be heard with respect to that
21 concern when the CEO testified about SDCCU’s policies and
22 procedures.8 Accordingly, SDCCU was afforded the requisite due
23
24
8
The record demonstrated that the bankruptcy court had
25 ordered SDCCU to appear before it in the past to discuss its
26 policies and position regarding its non-acceptance of payments
before a reaffirmation becomes enforceable. Therefore, SDCCU was
27 aware of the bankruptcy court’s concerns. Moreover, the
bankruptcy court had entered orders similar to the Reaffirmation
28 Order in at least two prior cases involving SDCCU.
-12-
1 process prior to the entry of the bankruptcy court’s
2 Reaffirmation Order.
3 Nevertheless, the bankruptcy court acted outside the limits
4 of its § 105(a) authority because it imposed a remedy that was
5 not contemplated by the Bankruptcy Code. Bankruptcy courts have
6 “broad authority” under § 105(a) to take action necessary to
7 prevent an abuse of process. Marrama v. Citizens Bank of Mass.,
8 549 U.S. 365, 375 (2007). Indeed, that power has been used to
9 craft various remedies for a range of conduct. See In re Kmart
10 Corp. 359 F.3d 866, 871 (7th Cir. 2004) (compiling cases).
11 Nevertheless, § 105(a) does not allow “free-floating discretion
12 in accordance with the court’s personal views of justice and
13 fairness” (Id. at 871) or amount to “a roving commission to do
14 equity.” Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325
15 F.3d 1168, 1174 (9th Cir. 2003). A bankruptcy court may only
16 exercise its equitable power as a means to fulfil some specific
17 provision within the Bankruptcy Code. Marrama v. Citizens Bank
18 of Mass., 549 U.S. at 382 (citing N.W. Bank Worthington v.
19 Ahlers, 485 U.S. 197, 206 (1988)). Its authority may be invoked
20 “only if, and to the extent that, the equitable remedy dispensed
21 by the court is necessary to preserve an identifiable right
22 conferred elsewhere in the Bankruptcy Code.” Jamo v. Katahdin
23 Fed. Credit Union (In re Jamo), 283 F.3d 392, 403 (1st Cir. 2002)
24 (internal citations omitted).
25 The bankruptcy court did not identify any Bankruptcy Code
26 section to support its conclusion that SDCCU had to accept
27 payments that were tendered by a debtor. The bankruptcy court’s
28 statements on this issue included:
-13-
1 “[I]f I don’t approve a reaffirmation where the people
have been trying to make the payments, you’re going to
2 go pick up the car unless they pay it off? . . . it’s
3 not compliant with federal bankruptcy law.”
4 Hr’g Tr. (March 31, 2011) at 12:2-5, 16-17.
5 and,
6
“[Y]ou are purposefully putting people in default . . .
7 And I don’t think that’s a good thing to do. I don’t
think it’s a good policy.”
8
9 Id. at 12:21-22, 13:1-2.
10 Section 524(l) provides that a creditor “may accept”
11 payments from a debtor before and after the filing of a
12 reaffirmation agreement. However, a creditor does not violate
13 the Bankruptcy Code by refusing to accept payments tendered by a
14 debtor. Additionally, we did not find any other federal law
15 that may apply. For example, we reviewed provisions regarding
16 creditor/debtor relationships, including payments on debt
17 obligations, contained in the Truth In Lending Act (TILA). See
18 15 U.S.C. § 1601 et. seq. While TILA provides that a creditor
19 shall credit a payment9 to a consumer’s account as of the date
20 of receipt, it allows the creditor to specify reasonable
21 requirements for conforming payments, which can include
22 designating certain procedures, or cut off times, for payments.
23 Id. Implementing Regulation Z, 12 C.F.R. § 226.10. We found
24
25
26 9
A “payment” presumes that the debtor delivered money in
27 performance of an obligation and that the creditor accepted it as
extinguishing that performance in whole or in part. 1129 Black’s
28 Law Dictionary, 6th ed. 1990.
-14-
1 nothing within TILA that requires a creditor to accept the
2 tender.
3 We also did not find other federal banking laws that
4 include provisions regarding payment obligations between
5 creditors and debtors. Neither do we find any California law
6 that requires a creditor to accept payments tendered to it. In
7 any event, the bankruptcy court could not use its § 105 powers
8 to implement state law unless there was also a comparable
9 objective set out in the Bankruptcy Code.
10 In this case, the Debtors were in default on the Loan
11 prepetition. By requiring that SDCCU accept the Debtors’
12 payments and refrain from exercising its state law rights under
13 the Loan, the bankruptcy court ordered SDCCU to accept a cure of
14 the Debtors’ default. Such authority is beyond the reach of the
15 bankruptcy court. In re Jamo, 283 F.3d at 403 (court lacked
16 power to modify proposed reaffirmation arrangement and compel
17 credit union to enter into judicially-crafted reaffirmation
18 agreement).
19 SDCCU makes a final argument that the bankruptcy court’s
20 injunction effects an impermissible expansion of the discharge
21 injunction or the automatic stay that is not intended by the
22 Bankruptcy Code. It asserts that the bankruptcy court
23 “expressly [stated] that if the Debtors wanted to return the
24 vehicle at some point in the future, the Debtors could also
25 demand their payments on this ‘discharged debt’ back from SDCCU
26 and SDCCU would be obligated to return the payments.” See
27 Appellant’s Opening Brief at 20. However, neither the record
28 nor the terms of the Reaffirmation Order supports SDCCU’s
-15-
1 assertion. Whether a discharged debt that is voluntarily paid
2 by a debtor must later be refunded is not at issue in this
3 appeal, and therefore, will not be addressed.10
4 VI. CONCLUSION
5 The bankruptcy court did not abuse its discretion in
6 denying the Reaffirmation; however, it acted beyond its
7 authority in ordering SDCCU to accept a cure of the Debtors’
8 default on the Loan and enjoining SDCCU from pursuing its state
9 law remedies. Therefore, we AFFIRM the bankruptcy court’s
10 disapproval of the Reaffirmation, but VACATE the portion of the
11 Reaffirmation Order that orders SDCCU to accept the Debtors’
12 payments, and that enjoins SDCCU from repossessing the Silverado
13 so long as the Debtors make payments and otherwise fulfill their
14 obligations to SDCCU.
15
16
17
18
19
20
10
21 At most, the bankruptcy court referenced the possibility,
but never decided the issue. It stated:
22
23 I worked at Bank of America for 16 years, and we always
took payments. Always took payments. We always took
24
payments. Once in a while when somebody would say:
25 Look, I decided I’m not going to reaffirm, we gave the
26 money back. But I will tell you, we made a lot more
money by taking the payments than we ever lost by
27
giving back money.
28 Hr’g Tr. (March 31, 2010) at 14:21-25; 15:1-2.
-16- | 01-03-2023 | 12-03-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1026537/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHUC LUC,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cr-00275-LMB-1)
Submitted: August 21, 2008 Decided: August 27, 2008
Before WILLIAMS, Chief Judge, and KING and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Phuc Luc, Appellant Pro Se. Kelli Hamby Ferry, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phuc Luc appeals the district court’s order denying his
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2)
(2000). We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. United States v. Luc, No. 1:05-cr-00275-LMB-1 (E.D. Va.
June 6, 2008). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4014878/ | IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DOMINIQUE M., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, J.M., A.M., Appellees.
No. 1 CA-JV 15-0032
FILED 7-12-2016
Appeal from the Superior Court in Maricopa County
No. JD18130
The Honorable Daniel G. Martin, Judge
AFFIRMED
COUNSEL
Law Office of Anne M. Williams, P.C., Mesa
By Anne M. Williams
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Appellee Department of Child Safety
DOMINIQUE M. v. DCS, et al.
Opinion of the Court
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
W I N T H R O P, Judge:
¶1 Dominique M. (“Mother”) appeals the juvenile court’s order
severing her parental rights to J.M. and A.M. (collectively “the Children”).
Mother does not contest the finding of statutory grounds for severance, but
contends the juvenile court erred in concluding severance was in the
Children’s best interests. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 J.M. is a male child born in 2010, and A.M. is a female child
born in 2013. Both came into care of the Department of Child Safety
(“DCS”) due to domestic violence, substance abuse, Mother’s mental
illness, and the then-ongoing severance proceedings of Mother’s two other
children. The trial court found J.M. and A.M. dependent as to Mother in
August 2012 and September 2013, respectively.
¶3 DCS offered Mother an array of services and assistance
designed to promote reunification, e.g., substance rehabilitation services,
parental aide services, mental health treatment and counseling, and
transportation. Mother, however, failed to fully comply and remained
unable to discharge her parental responsibilities. She was still engaged in
domestic violence. Mother also did not regularly participate in drug testing
and, when she participated, she did not consistently test negative for illegal
substances. Mother refused to take medication prescribed for her
psychiatric and psychological conditions, instead relying on Benadryl and
marijuana, for which she did not hold a valid medical marijuana card.
¶4 In September 2013, the Children’s guardian ad litem moved to
sever the parental relationship between Mother and the Children on the
grounds of willful abuse, mental illness, chronic abuse of dangerous drugs,
2
DOMINIQUE M. v. DCS, et al.
Opinion of the Court
prior severance of parental rights for the same cause,1 cumulative fifteen-
month out-of-home placement, cumulative six-month out-of-home
placement (for A.M. only), and asserted severance would serve the best
interests of the Children. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (3),
(8)(b)-(c), (10).2 After an adjudication, the juvenile court found DCS had
met its burden of proving the various statutory grounds and that severing
Mother’s parental rights was in the Children’s best interests.3
¶5 Mother timely appealed. We have appellate jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);
and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.
ANALYSIS
¶6 Mother appeals only the juvenile court’s finding that
severance of her parental rights was in the Children’s best interests. On
appeal, we do not reweigh evidence and will affirm the juvenile court’s
factual findings if supported by reasonable evidence. Denise R. v. Ariz. Dep’t
of Econ. Sec., 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009); Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.
2002).
¶7 Parental rights in the care, custody, and management of their
children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.
279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.
745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,
¶¶ 11-12, 995 P.2d 682, 684 (2000)). Although fundamental, parental rights
are not inviolate; a court may still sever those rights if it finds clear and
convincing evidence of one of the statutory grounds for severance, and also
finds by a preponderance of the evidence that severance is in the best
1 Mother’s rights to her two other children were previously severed in
a separate proceeding less than two years ago; the ground asserted in that
instance was cumulative fifteen-month out-of-home placement.
2 We cite the current version of the applicable statutes unless revisions
material to this opinion have occurred since the events in question.
3 On the motion of the guardian ad litem, the juvenile court also
severed the Children’s fathers’ parental rights. This court dismissed the
fathers’ separate appeals after their attorneys avowed they had reviewed
the entire record but found no non-frivolous issue to raise.
3
DOMINIQUE M. v. DCS, et al.
Opinion of the Court
interests of the children. See A.R.S. §§ 8-533(B), -537(B); Kent K., 210 Ariz. at
281-82, 288, ¶¶ 7, 41, 110 P.3d at 1015-16, 1022.
¶8 In proving severance is in the children’s best interests, DCS
must show either that severance affirmatively benefits the children (such as
showing they are adoptable or more stable in an existing placement), or
eliminates a detriment to the children if the parent-child relationship is not
severed. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 6-7, 804 P.2d
730, 735-36 (1990); Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,
¶ 6, 100 P.3d 943, 945 (App. 2004).
¶9 On appeal, Mother contends DCS failed to show the benefits
of severance, arguing that she and the Children were bonded; that she had
regularly visited the Children during the pendency of the case, and brought
food, clothing, money, and gifts to the visits; and that DCS lacked an
identified adoptive plan for J.M. Even assuming arguendo the record
supports these contentions, Mother is in essence asking us to reweigh the
evidence presented to the juvenile court. We decline to do so.
¶10 Reasonable evidence in the record supports the juvenile
court’s express finding that severance was in the best interests of the
Children. The juvenile court found that A.M.’s prospective adoptive
placement would meet her needs and provide stability, and that J.M. was
adoptable. Severance would make the Children eligible for adoption. At
the same time, the juvenile court found that, if the parental relationship
continued, the Children would remain at significant risk for abuse and
neglect. These findings demonstrate both affirmative benefits from
severance and the elimination of potential detriments if the parent-child
relationship is not severed. See JS-500274, 167 Ariz. at 6, 804 P.2d at 735
(recognizing that the existence of an adoptive plan or being freed from an
abusive parent shows a benefit).
¶11 Mother contends severing her relationship with J.M. is not in
his best interests because DCS currently does not have an adoptive plan for
him and he would be “orphaned” after the severance. Mother, however,
does not deny that J.M. is adoptable, and it is well established that
“adoptable” status is a benefit that may, in consideration with other factors,
support the “best interests” finding. See Maricopa Cty. Juv. Action No. JS-
501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (stating the
government need not show an adoption plan existed, but instead must
show the child is adoptable). Moreover, even without an identified
adoptive placement waiting, the record shows the Children’s needs were
being met in their current placements, which also supports the juvenile
4
DOMINIQUE M. v. DCS, et al.
Opinion of the Court
court’s best interests finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194
Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating one of the factors
favoring severance is that the current placement is meeting the child’s
needs). In addition, Mother does not contest any of the statutory grounds
for severance. Absent severance, the continued presence of the conceded
statutory grounds for severance also may, in certain cases, negatively affect
the children. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23,
312 P.3d 861, 866 (App. 2013); Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz.
556, 559, 748 P.2d 785, 788 (App. 1988). All of these factors demonstrate the
benefits of severance or the detriment of a continued parental relationship,
and more than adequately support the conclusion that reasonable evidence
supports the trial court’s finding of best interests.
¶12 Finally, Mother repeatedly states she and the Children are
bonded and argues that continuing her relationship with the Children is
critical to maintaining such bond, which would in her opinion be in their
best interests. The existence and effect of a bonded relationship between a
biological parent and a child, although a factor to consider, is not
dispositive in addressing best interests. Bennigno R., 233 Ariz. at 351, ¶ 30,
312 P.3d at 867. Even in the face of such a bond, the juvenile court is
required to evaluate the totality of circumstances and determine whether
severance is in the best interests of the children. Id. at 351-52, ¶ 31, 312 P.3d
at 867-68 (citing cases). Here, the juvenile court did consider the totality of
the circumstances and, as concluded above, reasonable evidence in the
record supports the juvenile court’s finding of best interests.
CONCLUSION
¶13 For the foregoing reasons, we affirm the juvenile court’s order
severing Mother’s parental rights.
:AA
5 | 01-03-2023 | 07-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128872/ | 538 U.S. 976
NORFOLK SOUTHERN RAILWAY CO.v.JAMES N. KIRBY, PTY LTD., DBA KIRBY ENGINEERING, ET AL.
No. 02-1028.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
C. A. 11th Cir.; and | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2768409/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class COREY L. HOUSTON
United States Army, Appellant
ARMY 20120991
United States Army Intelligence Center of Excellence and Fort Huachuca
Timothy P. Hayes, Jr., Military Judge
Timothy J. Cody, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Brian D. Andes, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean P. Fitzgibbon, JA (on brief).
10 December 2014
----------------------------------
MEMORANDUM OPINION
----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
CAMPANELLA, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of two specifications of failure to obey a lawful general
regulation, three specifications of false official statement, one specification of
indecent act, and one specification of adultery in violation of Articles 92, 107, 120,
and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 89 2, 907, 920 and
934 (2006 & Supp. IV) [hereinafter UCMJ]. Contrary to pleas, the military judge
found appellant guilty of another specification of violating a lawful general order , in
HOUSTON—ARMY 20120991
violation of Article 92, UCMJ. 1 The convening authority approved the adjudged
sentence of a bad-conduct discharge and confinement for eight months. 2
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, neither of which merit relief. Appellant personally
raises four additional issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), one of which merits discussion and relief.
BACKGROUND
At the time of his offenses, appellant was an acting First Sergeant in an
Advanced Individual Training (AIT) unit, A Company, at Fort Huachuca. While
serving in this capacity, appellant was engaged in prohibited relationships with
several female trainees. An AIT platoon sergeant in appellant’s unit, SFC RL, was
also involved in an inappropriate relationship with a trainee, Private First Class
(PFC) ST.
Appellant and SFC RL planned an illicit outing to Phoenix, Arizona in order
to attend a concert with two trainees, PFC ST and PFC CC. To facilitate their trip,
appellant needed to get PFC ST out of Friday unit training that PFC ST was
conducting with B Company. 3 To that end, appellant sent a “blanket e-mail” to his
company commander, Captain (CPT) PS, and B Company’s first sergeant, 1SG TC,
falsely stating that PFC ST needed a weekend pass so that she could meet with her
mother to do legal and financial paperwork—indicating that it was business that
could only be accomplished during a weekday. Private First Class ST’s chain of
command believed the pretense, and she was granted the weekend pass.
Appellant was charged, inter alia, with three specifications of false official
statement, in violation of Article 107, UCMJ. At trial, appellant entered pleas of
guilty to all three specifications. The military judge then proc eeded to question
appellant on his pleas.
According to appellant, one false official statement (Specification 2)
encompassed a lie made verbally to SFC SV, an A Company AIT training non-
commissioned officer, after SFC SV approached appellant to ask about the email she
had seen stating PFC ST needed a weekend pass. Sergeant First Class SV was not an
1
Appellant was acquitted of one specification of obstruction of justice and one
specification of adultery.
2
The convening authority deferred automatic forfeitures until action, and at actio n,
waived automatic forfeitures for six additional months for the benefit of appellant’s
spouse.
3
At the time of this misconduct by appellant, PFC ST was assigned to A Company
for administrative purposes, but was completing certain portions of her training with
B Company.
2
HOUSTON—ARMY 20120991
addressee on the e-mail sent by appellant, but had evidently “got[ten] wind” of it
from someone in B Company.
Two other specifications (1 and 3) of the false official statement charge arose
out of the same “blanket e-mail” sent to both CPT PS and 1SG TC. During the
providence inquiry, the military judge engaged in the following colloquy with
appellant:
MJ: [T]ell me . . . why you’re guilty of the offense listed
in Specification 1 of Charge II . . . .
ACC: On 1 July, sir, not on 20 July--only on 1 July, I sent
out a blanket e-mail requesting that [PFC ST] be released
from training to attend a meeting with her mother, which I
knew to be false.
MJ: So this e-mail that you sent on 1 July, was one of the
recipients [CPT PS]?
ACC: Yes, sir.
....
MJ: [P]lease look at Specification 3 of Charge II. . . .
The elements of that offense, false official statement, are
the same as the previous two specifications. . . . [T]he
only differences are the date alleged, the person alleged
that you made the statement to, and the substance of the
statement.
....
MJ: [D]o you have any questions about the elements or the
definitions?
ACC: Just the date, sir. It would have been the same date;
the 1 July because it was one blanket e-mail. 4
....
MJ: So you believe that this false official statement was
the same e-mail sent to [CPT PS]; it was just also sent to
[1SG TC]?
ACC: Yes, I do, sir.
4
Specification 3 of Charge II listed the date of the offense as “on or about 11 July
2011.”
3
HOUSTON—ARMY 20120991
MJ: Okay. And do you recall putting both of them on the
“to list” for your message?
ACC: Yes, sir.
Based on the appellant’s responses, the military judge accepted appellant’s
plea as provident for all three specifications of false official statements.
DISCUSSION
Unreasonable Multiplication of Charges
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts –Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to guide our analysis of
whether charges have been unreasonably multiplied:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant’s criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase the appellant’s punitive
exposure?; and
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338–39 (internal quotation marks omitted).
In this case, the record reflects that two of appellant’s convictions for making
false official statements arose from the same criminal act—one “blanket email” sent
to two recipients. Under the facts of this case, we find the unit of prosecution is the
number of false official statements made, not the number of recipients. Application
of the Quiroz factors to the evidence elicited during the colloquy requires the
consolidation of the particulars in Specifications 1 and 3 of Charge II. We will,
4
HOUSTON—ARMY 20120991
therefore, merge the two specifications to comport with the evidence elicited during
the providence inquiry.
CONCLUSION
Specifications 1 and 3 of Charge II are consolidated into a single amended
Specification, to read as follows:
In that Sergeant First Class Corey L. Houston, U.S. Army,
at or near Fort Huachuca, Arizona, between on or about 1
July 2011 and on or about 20 July 2011, with intent to
deceive, make to Captain P.S. and First Sergeant T.C., an
official statement, to wit: “Private First Class S.T. had a
family emergency and had to meet her mother in Tucson
the weekend of 15 July 2011 to deal with legal an d
financial transactions and therefore need ed a weekend
pass” or words to that effect, which statement was totally
false, and then known by said Sergeant First Class Corey
L. Houston to be so false.
The finding of guilty to Specification 3 of Charg e II is set aside and that
specification is DISMISSED. The finding of guilty to Specification 1 of Charge II,
as so amended, is AFFIRMED.
The remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted a nd do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape that might cause
us pause in reassessing appellant’s sentence. Appellant was tried and sentenced at a
special court-martial by a military judge. The nature of the remaining offenses, as
modified, still captures the gravamen of the original offenses and the circumstances
surrounding appellant’s conduct. Finally, based on our experience, we are familiar
with the remaining offenses so that we may reliably determine what sentence would
have been imposed at trial. We are confident that based on the entire record and
appellant’s course of conduct, the military judge sitting alone as a special court-
martial, would have imposed a sentence of at least eight months confinement and a
bad-conduct discharge.
Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.
5
HOUSTON—ARMY 20120991
Senior Judge COOK and Judge HAIGHT concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
6 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1028893/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6157
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN VICTOR THOMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:05-cr-00521-HFF-1; 8:07-cv-70145-HFF)
Submitted: May 21, 2009 Decided: May 29, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John Victor Thompson, Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Victor Thompson seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2008) 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 Thompson 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/3446002/ | Reversing.
The principal question on this appeal involves a part of the description of a boundary line to a tract of land owned by the appellants. The appellees, defendants below, own an adjoining tract. The appeal is from a judgment denying the appellants the relief sought. The part of the description in dispute follows:
"* * * thence up the point to the top of the ridge to two small black oaks, thence with the ridge to a high knob to a big hickory, thence with the ridge down in a low gap to a big hickory and dogwood, thence a straight line down the hill with a small drain to a small beech; * * *."
The controversy hinges around the location of the big hickory and dogwood on the ridge. It is the contention of appellants that the corner should be located at a low point in the gap where a hickory log was found. On the other hand, the appellees contend that it should be located some 68 steps up the ridge to a point where a marked hickory and a dogwood had stood. The point contended for by the appellees is some 40 steps from the highest point on the ridge.
There is no map or diagram in the record, nor were the appellees' deeds filed as exhibits. There is no dispute as to the small beech on the drain. The gist of the testimony of several witnesses for the appellees is that a marked hickory and a dogwood had stood at a point near the top of the ridge, but that the stump of the hickory had been taken up and the dogwood had been cut. It is insinuated that the appellants were responsible for the destruction of those objects. The testimony for the appellants shows that a hickory log 12 to 18 inches in diameter was found near the low point of the gap, and that a dogwood had stood near that point. Their testimony shows also that a straight line running from the beech up the drain would strike the low point of the gap. It appears that the drain does not run all the way to the low point of the gap, but forks some 25 or 30 yards below it.
The appellants point out that there are two phases or aspects of the part of the description in controversy, *Page 784
namely, "down a low gap" and "a big hickory and dog-wood." In this connection they insist that the hickory and dogwood corner referred to in the testimony of the appellees fills only a part of the description. They point out also that those trees were not down in the gap, but rather were up near the high point of the ridge. In support of their theory of the case they point out that the objects, the trees, were located at a place referred to in the description, namely, down in the gap, and also that a straight line from them to the beech would follow the drain.
Reliance is placed by the appellants upon the case of Rush v. Cornett, 169 Ky. 714, 185 S.W. 88, 89. In commenting upon circumstances similar to those here involved, the Court said:
"* * * It is also not to be forgotten that the eighteenth corner called for in the patent is not only a chest-nut, which is a natural object, but it is stated to be 'on top of the mountain.' And, although there should be a chestnut at the eighteenth corner, as claimed by appellant, suiting the description in the patent, still unless it was located on top of the mountain, or practically so, it could not possibly be the one called for in the patent at this point. By showing a chestnut to be at this corner, or near there, and on top of the mountain, appellees, at least in this respect, have produced testimony 'mountain high' in support of their claim."
The appellees cite cases, including that of Brashears v. Joseph, 108 S.W. 307, 32 Ky.LawRep. 1139, wherein it was said that marked corners are considered more satisfactory in determining boundaries than are natural objects not marked, such as streams or ridges. They insist that the testimony showing that a marked hickory and a dogwood had stood at the corner contended for by them is conclusive. But if we accept their contentions, we must disregard one feature of the boundary in dispute, namely, the natural physical monument "down in a low gap." This we are not disposed to do. The description not only called for the big hickory and a dog-wood, but also located them as being down in a low gap. We do not think the point contended for by appellees meets this description.
For the reasons given we think the judgment should *Page 785
be and it is reversed, with directions to set it aside and for the entry of a judgment consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3446003/ | Affirming.
The appellant, Hector Johnson, and appellee, Tyra Lainhart, are the owners of two lots respectively situated on the north and south banks of Pigeon Roost creek, which runs in a westwardly direction, in McKee, Jackson County, Kentucky.
These lots, as is shown by the calls of their respective deeds, begin on the east at directly opposite points on the north and south banks of Pigeon Roost creek, their dividing property line running with the thread of the stream, and end at directly opposite points thereof where Pigeon Roost creek converges with Bill's branch, which enters it from the north. The junction of these two streams forms the beginning point of Indian creek.
The record shows that the appellant has been the owner of his lot, located on the north side of the creek, for some twenty-odd years under a conveyance thereof to him by deed of date of November 6, 1913, containing the following call of its creek line:
"Beginning at a stone at the north bank of Indian Creek, at the McKee and Irvine road and runs with said creek N. 60 1/2 W. 8 poles to a stake; then with said creek S. 76 1/2 W. 10 poles to the mouth of Bill's branch."
The appellee, Lainhart, acquired his lot, lying on the south side of the creek, by deed executed him thereto on July 23, 1907, containing the following north boundary call of his lot: *Page 128
"Then with the said division fence north to the creek then near east with the creek to David street."
It appears from these calls of their deeds, as well as by a survey and plat made of their respective north and south property lines, that they run almost due westwardly with the thread of the creek, for a distance of eight poles, and then make a 16 degree turn southwestwardly with the creek for a distance of ten poles.
It further appears, and is admitted, that during this course of years the force and pressure of the current of the stream, in striking its north bank where it turns south, has washed away or somewhat deeply cut into the north bank, with the result that the south line of the appellant's lot has been changed and moved northwardly for a distance of some feet, involving the loss to him of perhaps one-eighth of an acre of land. On the other hand, it appears that there has been a corresponding gain by accretion on the south side of the stream or the north bank of appellee's lot, there having been slowly formed and deposited next the lower or western end of his creek boundary a sand and rock bar; or, that is to say, his creek bank has moved northwardly to the new bank of the present channel of the stream.
The appellant, Johnson, feeling aggrieved by this washing away of his creek bank, beginning at the point where the creek changes its course, or at the beginning of the ten pole call of his boundary, and seeking to avoid the further washing away of the south side of his lot, began the construction of a rock wall, commencing with and extending for some distance along the western end of the first or eight pole call of the creek boundary and at the beginning of the second or ten pole call thereof, where it changes its bearing southwestwardly towards the new creek bank of the appellee, Lainhart, so as to turn the current of the creek away from his or the north bank towards and against that of the appellee, Lainhart.
It is admitted that this western part of the wall structure the appellant is building extends for a distance of some four to eight feet into the present channel of the stream, but is yet within the appellant's creek boundary line as it originally existed before its channel changed. *Page 129
The appellee, Lainhart, as plaintiff below, brought this suit in equity against the appellant, alleging that they having each acquired their lots, abutting on opposite sides of the stream, under deeds giving the boundary lines thereto as up to and with the stream, their divisional boundary line followed and ran with the then thread of the stream, and continues to run with the thread of the stream, even when shifted by accretions made to either its north or south bank; that the current of the stream has caused a sand and rock bar to be formed on the south bank of the creek, which has caused the bed of the creek to move northwardly or towards defendant's lot and that his (plaintiff's) lot extended to the thread of the stream of such new channel of the creek.
Further, he alleged that defendant had wrongfully placed and was building this rock wall into the creek, so as to thereby change its natural course and turn the current of the creek away from his (Johnson's) bank and back towards plaintiff's bank, which would result in washing it away and thereby damaging him, for which reason he asked that the defendant be mandatorily enjoined to remove that portion of the wall which the defendant had built and extended out into the bed of the creek.
Appellant (defendant below) filed answer, denying the material allegations of plaintiff's petition, and also a counterclaim. He alleged that he had built the wall only to protect his bank of the creek against the pressure of its current, which had been turned against his bank by reason of the plaintiff's having thrown brush, rock and other debris into the side of the creek next his fence and along the former bank of the creek, with the result that the natural flow of the creek was obstructed and the current of the stream deflected over against defendant's bank. He further alleged that within the last year or two, due to high tides in the stream and the creek's bed being thus filled up by the appellee, the channel of the creek had changed and had washed away the defendant's bank. Under such circumstances, he claimed that he was building the wall merely to correct and avert the damage which was being done his lot through the wrong of the plaintiff in having filled up the old bed of the stream, as stated, next his land. *Page 130
Plaintiff denied that he had ever, at any time, attempted to fill up the bed of the stream next his creek bank, as charged by appellant, or at all, but that while the current of the creek had pressed against its north bank, owned by the defendant, and had washed away a part of it, such result was due to the change in the course of the creek beginning at such point, rather than to any charged filling up of the other side of the creek channel by him.
Upon these issues, joined by both pleadings and proof, and submission of the cause for judgment, the court adjudged that:
"This cause is on submission to the court for final orders and judgment. The court has examined the pleadings, proof and exhibits carefully, and in addition thereto personally went to the place mentioned in the pleadings and made personal examination of the same, including the rock wall built and being built at the time of the institution of this action.
"From the point of beginning of line of defendant's land for eight poles, the Pigeon Roost branch is straight and further up the creek for a considerable distance. At the end of the eight pole line, the creek, as well as the land line of defendant, makes a turn and change of 16 degrees. At the end of the ten pole line comes in Bill's branch, almost, if not quite, at right angles with Pigeon Roost branch. Opposite this intersection, and some above and below, is the rock bar or sediment complained of by defendant.
"The evidence shows that for some time and gradually this formation on the side of the creek abutting plaintiff's land has been accumulating, and, perhaps, the creek has changed its course to some extent on the side of the defendant, the creek running straight to the end of the eight pole line and the line of defendant changing sixteen degrees, naturally placed the current of the stream against defendant's land, and, further, Bill's branch running into the other creek was and is another cause of the formation of the rock bar, or formation on side of plaintiff. The court is not impressed with the idea that plaintiff caused the creek to divert *Page 131
toward the land of the defendant, as the direction and curve of the creek, together with the current of Pigeon Roost creek and lay of the land was and is the cause of this gradual formation, and also, perhaps, of the eating in upon the side of the defendant.
"The rock wall, in part, built by defendant extends out some three or four feet into the stream as now located and if continued and if same should remain in the present position, at the lower end would cause the stream to change its course onto the side of plaintiff. The court is of opinion that from the point where the rock wall makes a turn out into the creek, it should be removed and the remainder of the wall should stand. The court is not holding that defendant should not be permitted to protect his land from the current of the creek, by placing obstructions to same along the edge of the bank where the present bed of the creek is or where the water course now flows. The court is of the opinion that there has not been a sudden change in the stream, such as would justify the turning of the current back onto the side of plaintiff. This was the purpose of the building of the wall, or at least of turning same into the creek. This the defendant admits to be his purpose. After a gradual deposit of land on the side of the property of a riparian owner, it becomes his property. The deed of plaintiff calls to run to the creek. That was true in the opinion of the court when he first purchased it, or to the creek at any point where the change was made by the natural current of the stream and by gradual formation and his title would follow the creek unless by a sudden or perceptible change. Where land is suddenly and forcibly removed from a riparian owner by inundation or current, or by a sudden change in the course of the water, so that a considerable portion is thus perceptibly transferred from one owner and deposited upon the land of another, the rule above announced does not apply, but this, in the opinion of the court, did not occur in the instant case. * * *
"It is therefore ordered and adjudged by the court that the injunction granted herein be and it is hereby made perpetual to the extent that defendant *Page 132
cease to construct the wall mentioned in the petition and further, in the direction and at the place started; that he be and is hereby required to remove so much of said wall as is placed in the creek from the point where the bend * * * or change in course is made therein down the creek to the point where same now ends, and that portion up the creek from the point of change in course * * * is permitted to stand, and the defendant is given a reasonable time in which to make said removal."
We are of the opinion that the above judgment represents a just and proper determination of the question presented, and that the court, in so deciding upon the finding of facts as made by him (which finding we are of the opinion was amply supported by the evidence, and clearly brought this finding, within the protected sphere where it should not be disturbed), properly applied the rule announced by us in many earlier cases, wherein the same question, arising upon analogous facts as those here found, was presented.
The fact as found by the court in its judgment, supra, with respect to the change in the channel of the creek away from plaintiff's creek bank and encroachment upon the defendant's or the north bank of the creek, was that this change was one that had slowly taken place over a long course of years, due both to the formation, by accretion, of a sand bar next the south or plaintiff's bank of the creek and the corresponding eating away of the north or defendant's bank of it, caused by the pressure of its current against the bank where the course of the creek turned, rather than due to any sudden change in the current of the stream, as was contended for by appellant.
In the case of Holcomb v. Blair, 76 S.W. 843, 25 Ky. Law Rep. 974, it was held that the owner of lands abutting upon a navigable stream, which have been slowly and imperceptibly encroached upon by the stream, has no right to obstruct the channel by constructing a stone wall therein where the bank originally stood, resulting in injury to the property of others located further up the stream, the court in its opinion saying:
"The proof leaves no doubt that the dam obstructs the flow of water down the river, and backs it up on appellant's wheel. It also leaves no doubt *Page 133
that the only justification claimed by appellee for putting the dam in the river is that the bank originally stood where the dam is placed, and has been washed away by the gradual pressing of the river over against it by the rocks, sand, and gravel washed down on the opposite side of the stream by Pert creek. * * * No rule is better settled than that, if a stream slowly and imperceptibly changes its course, the accretion on the gaining side belongs to the proprietor on that side, and the land gradually encroached upon by a navigable stream ceases to belong to the former owner as the channel of the stream shifts and covers it. Gould on Waters, sections 155-159. The rule is otherwise if the change is violent, and arising from a known sudden cause, like a freshet. Sweatman v. Holbrook, 38, S.W. 691, 39 S.W. 258 [18 Ky. Law Rep. 870]. But in the case before us the change has been so slow that there is great diversity in the testimony as to its extent, some witnesses saying that there has been no change at all, or but little. And while we are satisfied there has been some change, still it is of that gradual kind constantly occurring at such points on streams, and under which the thread of the stream in law follows the center of the channel as it changes. Hunter v. Witt, 50 S.W. 985 [21 Ky. Law Rep. 35]; Cruikshanks v. Wilmer, 93 Ky. 19, 18 S.W. 1018 [13 Ky. Law Rep. 888]. The appellee may build a stone wall along his bank to keep the water from washing under it, but he cannot encroach upon the channel of the stream, or place any obstruction in it."
Also, in harmony with this rule, was it declared in the case of Sweatman v. Holbrook, 38 S.W. 691, 39 S.W. 258, 18 Ky. Law Rep. 870, that where, by reason of a freshet, the channel of a stream which forms a line between two estates suddenly changes its course and cuts off the property of one of them and adds it to the property of the other, the ownership is not changed.
In the instant case, the chancellor has found that such was not the character of change effected in the channel of the stream, but that it was one by accretion, extending the creek bank of the plaintiff by gradually adding to its alluvial deposits, slowly forming the sand bar. *Page 134
In the later case of Witt v. Willis, 85 S.W. 223, 27 Ky. Law Rep. 417, was the same rule quoted with approval from Gould on Waters, section 159, that (page 224):
"If an unnavigable stream, in which the title of the riparian owners extends ad filum aquæ, slowly and imperceptibly changes its course, the boundary line is at the center of the new channel. But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits between the two estates."
See, also, Jean v. Brentlinger, 155 Ky. 509, 159 S.W. 1139; Pack v. Stepp, 110 S.W. 887, 33 Ky. Law Rep. 677; Hilleary v. Wilson, 100 S.W. 1190, 1192, 30 Ky. Law Rep. 1262.
In the latter case, the court, in its opinion delivered by Judge Carroll, said (page 1191):
"It is not seriously disputed that the law of accretions obtains in this state. Indeed, this has been settled by so many adjudications that it would not be useful to extend this opinion discussing this doctrine or the reasons upon which it rests. We will content ourselves with calling attention to the cases of: Berry v. Snyder, 3 Bush, 266, 96 Am. Dec. 219; Cruikshanks v. Wilmer, 93 Ky. 19, 18. S.W. 1018 [13 Ky. Law Rep. 888.]; Kentucky Lumber Co. v. Green, 87 Ky. 257, 8 S.W. 439 [10 Ky. Law Rep. 139]; Miller v. Hepburn, 8 Bush, 326; Witt v. Willis, 85 S.W. 223, 27 Ky. Law Rep. 417; Holcomb v. Blair, 76 S.W. 843, 25 Ky. Law Rep. 974, 975 — as well as to: City of St. Louis v. Rutz, 138 U.S. 226, 236, 11 S. Ct. 337, 34 L. Ed. 941; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S. Ct. 518, 33 L. Ed. 872. And this rule extends to accretions made to islands, as well as to the mainland. American English Ency. of Law, vol. 17, p. 536; Buse v. Russell, 86 Mo. 209; Cooley v. Golden, 117 Mo. 33, 23 S.W. 100, 21 L.R.A. 300."
While there is some conflict of authority as to the right of a riparian owner to restore to its former channel a stream which has formed a new channel, provided he does so within a reasonable time after the new channel *Page 135
is formed, it is clearly shown by the cases cited above that the rule of this jurisdiction is that where the channel of a stream has gradually and imperceptibly changed to a new channel, attended by the extension of one of the banks by accretions slowly deposited thereon, the owner of the opposite bank, complaining of loss of land resulting from such shifting of the channel, will not be permitted to place an obstruction or wall within the new creek bed for the purpose of restoring it to its old channel, but that his stream boundary changes with the changes in the thread of the new channel, as the same is caused by accretions to gradually shift.
The lower court's judgment being in harmony with our views as here and in these earlier cases expressed, or, that is to say, in conformity with the rule of this jurisdiction as repeatedly declared by us in earlier cases dealing with this question, it follows that the judgment should be and it is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3446013/ | Reversing.
The will of Minnie K. Gallagher was duly probated in the Boyd county court. Appellants prosecuted an appeal to the circuit court. On the trial of the case in the circuit court, there was a majority verdict of the jury against the will. The court granted a new trial on the ground that he had erred in submitting the question of undue influence to the jury. The case was tried again, and there was a majority verdict in favor of the will. Appellants moved the court to enter judgment upon the first verdict. The court overruled the motion, and entered judgment upon the second verdict. They appeal.
The facts are these:
Minnie K. Gallagher was the widow of Jerry Gallagher; he having died late in August, 1926. They had no children. After his death she continued to live at the old home. George Kobs, who had worked for many years with her husband and was unmarried, lived with her; *Page 595
also her niece Kizzie Clay Lindsey. Mrs. Gallagher had been in bad health for some years, before her husband died, of kidney trouble. This had affected her eyes so that she was practically blind. She was a sister of M.S. Burns, who was the father of Kizzie Clay Lindsey and Shirley B. Wellman. She had a sister Sophia, who lived in Missouri and was in very reduced circumstances; her husband was paralyzed. She had another sister, Mrs. Katherine Mott, who lived at Ceredo, W. Va., about 3 miles from where Mrs. Gallagher lived. In addition to this she had a number of nephews and nieces, and as they testify she was on very friendly terms with them. She had real estate of considerable value, and personal property, including stocks, of value $30,000, according to the proof for the appellants. All the property she had came to her under the will of her husband, who left everything to her. M.S. Burns testified that, about three weeks after her husband's death, his sister requested him to write her will for her, telling him how she wanted it written; that he went home, wrote out the will, and about two weeks later sent it to her by his wife, Mrs. Cora Burns. He lived at Louisa, and she lived at Catlettsburg. By this will certain real property owned by her was willed to George Kobs, except her residence property, and this was willed to him for life and at his death to Shirley Wellman and Kizzie Clay Lindsey. She devised to Maud Wilson $250 and all the rest of her property she left to Shirley B. Wellman and Kizzie Clay Lindsey, share and share alike, and, if either died, the survivor took it all. He testified that when he next saw his sister she said that she was thinking about the will.
Thus things ran along until Sunday the 12th of December. That night she was taken very sick. At 4 a. m. she had a convulsion. At 8 a. m. a trained nurse came, and the doctor, who had been with her for some time, then told the nurse that she was dying. George Kobs telephoned to M.S. Burns the situation. Burns testified that he left his home at Louisa on the train at 11 a. m. and reached Catlettsburg about 12 m. He went from the train straight to the house and went to his sister's room. He asked her about the will, and she said she wanted to leave the land to Kobs without restriction and wanted the $250 paid to Maud Wilson in six months. Kobs got the will out of the drawer. He and Burns went downstairs to the sun parlor, and there Burns took a pen and crossed out of the will all the words limiting the *Page 596
estate of George Kobs to his life, and added after the clause about Maud Wilson the words, "not later than six months after my decease." He and Kobs then went back upstairs together. He read the will to Mrs. Gallagher. He says that she said then, "That is just what I want." She touched the pencil, and her signature was witnessed by the doctor and the nurse, who both testify that she was then competent.
On the other hand, for the contestants it is clearly shown that they gave her morphine at 8 o'clock; that at 10 o'clock she had another convulsion; that they gave her morphine again and put her in a hot wrap, and at 12:30 she had another convulsion. At 8 o'clock she had another, and after this passed into a state of coma and died at 2 o'clock the next morning. About noon the Catholic priest was sent for. He came, he says, at 12:30. He testifies at great length as to the condition he found her in, and the substance of his testimony is that she did not know anything. According to his testimony, his visit was about the time the will was made; but, according to the testimony for the propounders, his visit was at least an hour after the will was made. Still, as the train did not get there until 12 o'clock and after this Burns went to the house and saw his sister and made the changes in the will, it could not have well been executed long before 12:30, and she had the third convulsion at 12:30. Burns, on being recalled, testified that he got to Catlettsburg at 11 a. m., but he testifies that he got to the house in not "over an hour or so," and this would place the execution of the will almost as late as 12 m. Some of the witnesses who were present testified that she said "Yes" when asked questions, while others say she did use other words. She was breathing heavily all that day. Her breathing could be heard over the house. One of her nephews came there at 10 o'clock, and Kobs saw him and told him that she was sick and they allowed nobody to see her.
Considering the evidence as to her feeble condition when this will was made, clearly there was sufficient evidence to take the case to the jury on the question of her capacity at that time. In view of the ruling of the circuit court in granting the new trial, the material question presented now is: Was there sufficient evidence of undue influence to submit this question to the jury?
Margaret Gallagher, who was a niece of her husband, testifies that nine days before she died Mrs. Gallagher *Page 597
said to her that she would commit suicide only she knew that she would never see her uncle Jerry's face if she died that way; that nobody knew what she was going through; that she said: "I haven't made a Will, but I want to. I haven't been able to get one to suit me. I love all my people. I want to remember them all, especially my sister Sophia in Missouri, for she needs it more than any of them and I suppose all my people need it with the exception of uncle Milt and his daughters. I think a lot of them, but they are well provided for. Brother Milt is very wealthy. You know, Marg, 'I won't never marry. I don't know why but Milt's wife keeps asking me, 'Now, Minnie, don't sign anything.' "
Caroline Burns Meek testified that two weeks before her aunt died she was talking to her, and her aunt said that, if she did what she wanted with her money, she would like to leave it to the education of children; that her sister Sophia, who lived in Missouri, was poor and she needed the money, and she would like to leave her money where it was needed.
Maud Wilson testified that after she died George Kobs said to her that Milt Burns began to hound Min (testatrix) the next day after Jerry was buried, and that he hounded the life out of her to make a will. He said Min did not want to make a will and he did not think she was in any condition to make a will. She also testified that Kobs said to her that he was very much hurt when they limited his rights to a life estate, and that he told Mrs. Gallagher, "Well, Min, if you want to give me anything I want to get something that there was no strings tied." Another witness testifies that Kobs said that he took the will back up to her and told her that, if she did not give him anything but one of those little poodle dogs, he wanted her to give it to him without any strings on it, that she did not sign the will, and he came back downstairs and said, "Now, Milt, she hasn't signed that will and she will not sign it until you strike that out."
It is clear from the evidence that Mrs. Gallagher had had this will in her possession for over three months, and that she had taken no action upon it. It is also clear from the evidence that she was blind and feeble and entirely dependent upon those about her. When she was taken violently sick Sunday night, Kobs wired Burns to *Page 598
come. Before Burns got there, the doctor had told the trained nurse who had been called in that she was dying. After this, at 10:30, she had another convulsion, and a third convulsion at 12:30. These hours are well fixed by the nurse's chart kept at the time. Though Burns went straight from the train to the house, and the first thing he did was to get his sister's instruction about the will, still, as after this he had to make the changes in the will downstairs before it was taken upstairs to her to be executed, all of this could not well have taken place much before 12:30 o'clock. Undue influence, like other things, may be shown by circumstantial evidence, and it takes much less influence to control a sick person, as feeble as Mrs. Gallagher was, than a person who is well and strong. The will is not the act of the testator, unless it is his free and voluntary act. The court cannot escape the conclusion, under all the facts, that Kobs was dissatisfied with this will as Burns by her direction had first drawn it; that, when Burns came, the first thing that he and Burns turned their attention to was this will; and that they went down together and changed the will so as to suit both of them; and that it would never have been presented to Mrs. Gallagher to sign if Burns and Kobs had not agreed down in the sun parlor upon the changes to be made. There was clear evidence showing that this was not the disposition of her property that she wished to make, if the testimony for the appellees above quoted is true. There was therefore ample evidence of undue influence to submit this issue to the jury. The finding of the jury is not against the evidence, but is amply supported by it. There was no error in the proceedings on the trial, and the verdict of the jury on the first trial should not have been set aside.
While this court is more inclined to sustain an order granting than one refusing a new trial, it will not sustain an order granting a new trial on an erroneous ground, when the verdict is warranted by the evidence and no error appears in the record, and a sound discretion was abused in granting the new trial.
Judgment reversed, and cause remanded for a judgment pursuant to the first verdict.
JUDGE WILLIS not sitting. *Page 599 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3430574/ | I concur in the opinion except that part which orders the trial court to direct a verdict in favor of the defendant. This is a court for the correction of errors. The case at bar is a law action, and, inasmuch as upon the retrial the evidence may be entirely different, this court should not pass final judgment until the new record is perfected.
I am authorized to say that Mr. Justice Richards joins in this dissent. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/128883/ | 538 U.S. 977
ANDERSEN ET AL.v.UNITED STATES ET AL.
No. 02-1045.
Supreme Court of United States.
April 21, 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 804. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128902/ | 538 U.S. 979
ILLINOISv.SWIFT.
No. 02-1284.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE SUPREME COURT OF ILLINOIS.
2
Sup. Ct. Ill. Certiorari denied. Reported below: 202 Ill. 2d 378, 781 N. E. 2d 292. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/997879/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM DENNIS SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Asheville. Lacy H. Thornburg, District
Judge. (CR-93-64)
Submitted: February 11, 1999 Decided: February 25, 1999
Before ERVIN, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Dennis Sutton, Appellant Pro Se. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William Dennis Sutton appeals the district court’s orders de-
nying his motion to amend his presentence report and his motion to
reconsider. 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. See United States v. Sutton,
No. CR-93-64 (W.D.N.C. Oct. 27, 1998;* Nov. 13, 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.
AFFIRMED
*
Although the district court’s order is marked as “filed” on
October 26, 1998, the district court’s records show that it was
entered on the docket sheet on October 27, 1998. Pursuant to Rules
58 and 79(a) of the Federal Rules of Civil Procedure, it is the
date that the order was entered on the docket sheet that we take as
the effective date of the district court’s decision. 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/2999232/ | In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3155
DENNIS HEALY,
Plaintiff-Ap p ellant,
v.
CITY OF CHICAGO, a municipal
corporation, RICHARD A. RICE,
individually and as Commissioner
of the City of Chicago Department
of Water, JUDITH C. RICE,
individually and as Commissioner
of the City of Chicago Department
of Water, et al.,
Defend ants-Ap p ellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6030—William J. Hibbler, Jud ge.
____________
ARGUED OCTOBER 27, 2005—DECIDED JUNE 16, 2006
____________
Before RIPPLE, KANNE and WOOD, Circuit Jud ges.
RIPPLE, Circuit Jud ge. Dennis Healy, a licensed stationary
engineer employed by the City of Chicago Department of
Water (“DOW”), filed this action under 42 U.S.C. § 1983
against the City of Chicago (“City”) and current and former
2 No. 04-3155
City employees Francis Blake, John Bolden, Edward Laird,
Russell Miller, Judith Rice and Richard Rice in their official
and individual capacities. He claimed that he was denied,
1
in violation of his First Amendment rights, various promo-
tions in retaliation for his repeated complaints of corruption
and of other illegal activities at Mayfair Water Pumping
Station (“Mayfair”). On July 19, 2004, the district court
granted summary judgment in favor of the City, Mr. Blake,
Mr. Rice and Ms. Rice. Mr. Healy now appeals. He contends
that the district court erred in finding that there was no
causal link between his reports of illegal activity and the
subsequent denial of promotions. For the reasons set forth
in the following opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
1. Reports of Corruption and Theft
Mr. Healy has been employed by the City of Chicago
Department of Water (“DOW”) for over twenty-five years.
From 1981 to 1985, he was employed as a stationary fire-
1
Count II of Mr. Healy’s complaint alleged that he was denied
promotions because he was not an active supporter of the
Democratic Party, in violation of his free speech and equal
protection rights guaranteed by the Fourteenth Amendment.
Count III alleged that this politically motivated discrimination
also violated the Shak m an consent decree. Se e Shak m an v.
Dem o cratic Org. o f Co o k Co unty, 569 F. Supp. 177 (N.D. Ill.
1983). The district court granted summary judgment in favor of
the defendants on both counts. See R.92 at 16-23. Mr. Healy has
not challenged this judgment on appeal.
No. 04-3155 3
man. In 1985, he was promoted to a Group C Operating
Engineer; in 1991, he again received a promotion and
became a Group A Operating Engineer. He still holds that
position as of the date of this opinion. With the exception of
2
a temporary transfer in 1993, Mr. Healy has been assigned
to Mayfair, one of the DOW’s steam pumping stations, for
the duration of his employment at the DOW.
In 1992, Mr. Healy began complaining to his superiors
about allegedly illegal activities occurring at Mayfair. He
believed that his co-workers—including the then-Chief
Operating Engineer (“COE”) of the pumping station—were
3
engaged in theft and sabotage of public property, drinking
on the job and fraudulent business practices. He brought
these allegations to the attention of a number of offices and
individuals. For example, in January 1992, he met with a
representative of the City Office of Intergovernmental
Affairs. In September 1992, and again in December 1992, he
spoke with Mr. Laird, who at that time was the Engineer of
Water Pumping. In late 1992 or early 1993, he met with Mr.
Bolden, then the DOW Commissioner. During 1992 and
1993, he met numerous times with representatives from the
Inspector General’s (“IG”) Office. Mr. Healy also discussed
his concerns with Mayor Richard M. Daley, once in Febru-
ary 1994 and again in October 1998. In 1994, Mr. Healy
contacted Mr. Blake, then the acting COE of Mayfair; he
maintained communication with Mr. Blake about these
issues after Mr. Blake left Mayfair to assume the position of
Assistant Water Commissioner in late 1994.
2
Mr. Healy protested this transfer through City grievance
procedures. Pursuant to a settlement agreement with the City, he
was returned to Mayfair in February 1994.
3
For example, Mr. Healy believed that his co-workers and
supervisors had stolen from Mayfair cooling coils, bricks and
scrap steel, among other items.
4 No. 04-3155
After October 2, 1998, the beginning of the time period
4
relevant to this appeal, Mr. Healy discussed his concerns
about illegal activity at Mayfair with only a few individuals.
The first was Judith Rice, the Commissioner of Water from
1996 to November 1999. Mr. Healy submits that he and Ms.
Rice held a meeting in late January or early February of
1999, during which they spoke about corruption at Mayfair
and his concerns about not having been promoted:
I met with Judith Rice at her office at the Jardine Plant
in late January or early February 1999 for about 20
minutes. Ms. Rice had all my personnel documents on
her desk for the meeting and only Ms. Rice and I were
present for the meeting. At this meeting, I asked Ms.
Rice why I had been continuously passed over for
promotion with my qualifications and seniority. I told
Ms. Rice that I had many meetings with different people
about my complaints of theft and sabotage at Mayfair
and that my name was [expletive] because I was blamed
for different things. I demanded that Ms. Rice take care
of this and that if she needed any information, I would
provide it to her. At this meeting, Judith Rice told me
that she knew all about me and my work record and
that there was no reason why I was not promoted to the
position of Assistant Chief Operating Engineer. Ms. Rice
told me that I would receive the next promotion to that
position.
4
The district court held that all claims accruing before October
2, 1998, were time-barred—a finding that Mr. Healy does not
challenge before this court. See R.18 (striking as untimely all
damages claims stemming from acts occurring before October 2,
1998); see also id . at 3-7 (finding that the plaintiff could not
proceed under the “continuing violation doctrine”).
No. 04-3155 5
R.78, Ex.1 at 12 (Healy Aff.); see also id ., Ex.2 at 311-14
(Healy Dep.). Ms. Rice denies Mr. Healy’s account of their
conversation. She contends that she did not
meet[ ] with Mr. Healy in 1999 as alleged in his com-
plaint. I do recall seeing him once, in passing, as I was
leaving my office at the Jardine Filtration Plant while I
was Commissioner of the Water Department. I do not
recall the date on which this chance encounter occurred.
I did not discuss with him any of the allegations con-
tained in his complaint at that time. In addition, I recall
having a telephone conversation with Mr. Healy,
possibly in 1999, after he had made repeated efforts to
contact me by phone. During this phone call, Mr. Healy
alleged that he was being treated unfairly and that he
had been passed over for promotions, and indicated
that the [COE] at the Mayfair Pumping Station where he
was employed disliked him. I did not discuss the issues
Mr. Healy raised, but instead referred him to Francis
Blake . . . . I have no knowledge of . . . the alleged
complaints of criminal misconduct at the Mayfair
Pumping Station.
R.75, Ex.R at 2-3 (Judith Rice Aff.); see also R.78, Ex.4 at 30
(Judith Rice Dep.) (explaining that, during their encounter
in the hallway, Mr. Healy complained that “he wasn’t being
treated fairly; he had been passed over; the guys didn’t like
him; things like that”).
In 1999, Mr. Healy again contacted the IG’s Office. On
October 13, he submitted a complaint, alleging that “em-
ployees who work for [Mayfair] stole copper and equipment
[from] the Department of Water in 1993 and 1994.” Case
Initiation Report, R.75, Ex.N. The IG’s Office conducted
interviews of relevant individuals, but from the record it
does not appear that any remedial action was taken.
6 No. 04-3155
In addition, as we noted earlier, Mr. Healy maintained
contact with Mr. Blake after he left Mayfair in 1994 to
assume the position of Assistant, and then Deputy, Water
Commissioner. The two met face-to-face in January 2000.
According to Mr. Healy, they discussed his concerns of
corruption at Mayfair, as well as his related allegations of
retaliation. Mr. Blake allegedly responded to Mr. Healy’s
concerns about being passed over for promotions as follows:
[W]e talked that morning, probably 50 minutes to an
hour. And I—and I asked him what part [City Hall]
didn’t understand, and he told me that I spoke too
clearly, and he said they didn’t like the way it was done.
And that he said it comes from the top down, it doesn’t
come from the bottom up. . . . And he said there’s a
political system, that’s the way it works. . . . [A]nd he
also said the Fifth Floor [of City Hall]. That’s how things
work. It’s a political system. It works from the top
down.
R.78, Ex.2 at 534 (Healy Dep.). Although Mr. Blake admits
knowing of Mr. Healy’s reports of corruption and concerns
regarding promotional opportunities, he denies having
made these statements to Mr. Healy. See, e.g., id ., Ex.3 at
157-58 (Blake Dep.).
2. Promotional Opportunities
Mr. Healy claims that, during this same time period and
in retaliation for his reports of public corruption, he was
denied five promotions to Assistant Chief Operating
5
Engineer (“ACOE”) and Chief Operating Engineer
5
ACOE is the position immediately above the Group A Engi-
(continued...)
No. 04-3155 7
6
(“COE”). We begin by discussing the DOW’s promotion
and interview procedures; we then turn to discuss Mr.
Healy’s specific claims.
The DOW employs a multi-stage procedure for interview-
ing and promoting employees. At the beginning of each
year, the Deputy Commissioner of the DOW prepares a
hiring plan, which lists program vacancies and is distrib-
uted to current employees. The City Department of Person-
nel (“DOP”) is responsible for determining whether a
current employee meets the “minimum qualifications for a
position, and if so, the DOP places that person on the
eligibility list for that position.” R.75, Ex.P at 1 (Falcon Aff.).
The Deputy Commissioner then selects a three-person
interview committee, which is responsible for conducting
interviews of persons eligible for the position. Interviewers
independently fill out a rating sheet for each candidate,
assigning him or her a numerical score. These sheets then
are given to the Deputy Commissioner who summarizes
and tabulates the scores, compiles a list or spreadsheet of
the numerical rankings, and recommends to the DOP, based
upon those rankings, candidates for promotion. The DOP
conveys this information to the DOW Commissioner, who
5
(...continued)
neers, the title currently held by Mr. Healy. There are usually
four ACOEs assigned to each pumping station.
6
Mr. Healy also claims he suffered a number of adverse
employment actions prior to 1998 in retaliation for his willingness
to speak openly about corruption at Mayfair. For example, he was
transferred to the midnight shift; received unwarranted repri-
mands; was denied numerous pre-1998 promotions; and was
suspended for a brief period. These claims, however, fall outside
the relevant statutory limitations period and will not be consid-
ered by this court as a basis for liability.
8 No. 04-3155
ultimately is responsible for selecting the candidate(s) most
7
appropriate for promotion.
The first promotion decision relevant to this appeal
occurred in August 1998. Mr. Healy submitted an applica-
tion for four open ACOE positions. He was deemed mini-
mally qualified for the positions and was placed on the bid
list. He was one of 21 applicants interviewed for the four
positions by a three-person interview panel. The three
persons sitting on the interview panel had been selected by
the Deputy Commissioner, Mr. Blake, and were employed
by the DOW as ACOEs. Based exclusively on his average
interview score, Mr. Healy was ranked 12th by the panel.
The panel recommended for promotion the four candidates
with the best interview scores. Commissioner Judith Rice
approved this recommendation on August 26, 1998.
Mr. Healy again applied for open ACOE positions in
November 1998. He was one of 30 candidates interviewed
for six positions by an interview panel selected by Mr.
Blake, which consisted of three COEs. Based on his average
interview score, Mr. Healy was ranked 14th by the panel.
The six top-scoring applicants were offered promotions,
receiving both Mr. Blake and Ms. Rice’s approval.
Mr. Healy’s third interview, in late November 1998, was
for the position of COE. He was one of 17 people inter-
viewed for two available positions. The panel consisted of
two current COEs and the Engineer of Electrical Pumping.
Mr. Healy was ranked 14th based on his interview score; he
did not receive a promotion. Mr. Blake, after receiving the
recommendations of the interview panel, concurred with
the panel’s findings and passed on its recommendations to
7
See also R.78, Ex.3 at 153-56 (Blake Dep.) (describing the
DOW’s promotion process).
No. 04-3155 9
the Commissioner. The promotion of the two individuals
with the highest interview scores subsequently was ap-
proved by Ms. Rice.
Mr. Healy next interviewed for a promotion to ACOE in
May 2000. The interviews were conducted by a panel
consisting of a Deputy Commissioner and two COEs. Mr.
Healy was one of 19 candidates, was ranked 16th by the
interview panel and did not receive the promotion. There
were two positions available; the two candidates with the
highest interview scores were promoted.
The last interview was conducted in July 2000 for one
open ACOE position. The interview panel consisted of a
COE, an ACOE and a Deputy Commissioner. Mr. Healy was
ranked seventh out of eight applicants and did not receive
the promotion. The candidate with the highest interview
score was recommended for a promotion by the interview
panel and by Mr. Blake. Mr. Rice approved this recommen-
dation on July 31, 2000.
Although neither Mr. Blake nor Ms. Rice were present at
any of these interviews, they both were involved in the
promotion process. As Deputy Commissioner, Mr. Blake
participated in the selection of the interview panels and in
the tabulation and preparation of the scores and recommen-
dations for the DOP and the Commissioner. Ms. Rice, the
Commissioner from June 1996 to late October 1999, ap-
proved the choice of candidates for three of the five promo-
tions in question, accepting the recommendations of the
interview panel for all three job openings. Mr. Rice became
the DOW Commissioner in November 1999 and was
accountable for promotion decisions thereafter.
10 No. 04-3155
B. District Court Proceedings
In October 2000, Mr. Healy filed the present action against
the City and against Mr. Blake, Mr. Bolden, Mr. Laird, Mr.
Miller, Ms. Rice and Mr. Rice in their individual and official
capacities. See 42 U.S.C. § 1983. In pertinent part, he con-
tended that he was denied five promotions in retaliation for
his reports of illegal activity at Mayfair in violation of his
First Amendment right to free speech. He also claimed that,
because of his protected speech about corruption at Mayfair,
he was barred from attending safety meetings at the DOW.
The district court dismissed as time-barred all claims that
stemmed from allegedly discriminatory conduct occurring
before October 2, 1998—the beginning of the applicable two-
year limitations period. The statute of limitations therefore
barred all claims against Mr. Miller and Mr. Laird. See R.18
at 8 (finding that Mr. Healy failed to allege that Mr. Miller
and Mr. Laird had “committed any discriminatory acts since
8
October 2, 1998”). The district court subsequently also
dismissed Mr. Healy’s claims against Mr. Bolden as time-
barred. See R.22. The district court’s findings on these
matters have not been challenged on appeal.
On December 2, 2003, the remaining defendants filed a
motion for summary judgment. The district court granted
this motion on July 19, 2004. As an initial matter, the court
noted that the test for a First Amendment claim of retalia-
tion is three-fold: (1) whether the plaintiff’s speech was
constitutionally protected; (2) whether the defendant’s
8
In this same order, the district court also dismissed Mr. Healy’s
damages claims against the defendants in their official capacities.
See R.18 at 16-17 (although denying the defendants’ motion to
dismiss Mr. Healy’s request for injunctive relief against the
defendants in their official capacities).
No. 04-3155 11
employment action was motivated by the constitutionally
protected speech; and (3) whether the defendant would
have taken the same action in the absence of the plaintiff’s
speech. Although concluding that Mr. Healy’s reports of
illegal activity at Mayfair touched on a matter of public
concern, and that Mr. Healy’s “interest in commenting upon
matters of public concern outweighed the interests of
Defendants, his employer,” R.92 at 9-10, the district court
found no genuine issue of material fact on the question of
causation. In the district court’s view, there was no evidence
that Mr. Rice “knew of Healy’s protected speech or of the
alleged retaliation.” Id . at 11. The district court also wrote
that, although Mr. Healy previously had spoken with Ms.
Rice about his failure to be promoted, there was no evidence
that they had ever spoken specifically about corruption or
theft at Mayfair, or that she otherwise knew of Mr. Healy’s
reports of illegal activities at Mayfair. Lastly, although Mr.
Blake “knew of Healy’s complaints of corruption and his
complaints of retaliation,” id . at 12, he had no substantive
influence over the relevant promotion decisions:
The evidence establishes that the DOW Commissioners
did not consult with Blake before making their promo-
tion decisions, and they always chose those with the
highest interview scores, which was never Healy. There
is also nothing in the record to show that Blake did
anything to affect either the decision of the panel or the
interview scores.
Id . at 13 (internal citations omitted). The district court
dismissed as irrelevant and unsubstantiated Mr. Healy’s
account of his January 2000 meeting with Mr. Blake, in
which Mr. Blake allegedly told Mr. Healy that the reason he
had not received a promotion was because of “politic[s].”
Id . at 13-14.
12 No. 04-3155
Lastly, the district court found that, even in the absence of
Mr. Healy’s exercise of his First Amendment rights, the
defendants likely would have denied him all five promo-
tions. Promotion decisions at the DOW are based primarily,
if not exclusively, upon interview scores, and Mr. Healy
simply did not score well on the interview portion of the
promotion process.
In the absence of evidence that Mr. Rice, Ms. Rice or Mr.
Blake had violated Mr. Healy’s rights, the court concluded
that the City of Chicago could not be held vicariously liable
for the adverse employment actions at issue.
II
ANALYSIS
We review the district court’s grant of summary judgment
de novo. So rnb erger v. City o f Kno xville, 434 F.3d 1006,
1012 (7th Cir. 2006). In doing so, we construe all facts and
reasonable inferences in the light most favorable to Mr.
Healy, the non-moving party. Id . Summary judgment is
proper if “the pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Celo tex Co rp .
v. Catrett, 477 U.S. 317, 322-23 (1986).
A party claiming retaliation based upon the First Amend-
ment must create a genuine issue of material fact that: (1)
“[his] speech was constitutionally protected”; and (2) the
defendants’ “actions were motivated by [his] constitution-
ally protected speech.” Sm ith v. Dunn, 368 F.3d 705, 708 (7th
Cir. 2004); see also Vuk ad ino vich v. Bd . o f Sch. Trs. o f N.
New to n Sch. Co rp ., 278 F.3d 693, 699 (7th Cir. 2002). If Mr.
Healy fulfills these two requirements, the burden shifts to
No. 04-3155 13
the defendants to establish by a preponderance of the
evidence that Mr. Healy would not have been promoted “in
the absence of his exercise of his rights under the First
Amendment.” Vuk ad ino vich, 278 F.3d at 699. If the defen-
dants carry this burden, Mr. Healy then “bears the burden
of persuasion to show that [the defendants’] proffered
reasons were pretextual and that discrimination was the real
reason for the [employment action].” Sm ith, 368 F.3d at 708.
The only issue raised before this court is whether Mr.
Healy has presented evidence substantiating the causal link
between his protected reports of corruption in his work-
place and the subsequent adverse employment actions taken
by Ms. Rice and Mr. Blake individually and the City as a
14 No. 04-3155
9, 10
municipal entity.
A. Judith Rice
Mr. Healy first contends that the district court erred in
finding that there was no evidence that Ms. Rice knew of his
reports of illegal activity at Mayfair. The district court
concluded that, although Ms. Rice may have met with Mr.
Healy in January or February of 1999 and discussed at that
9
Mr. Healy does not challenge the district court’s finding that
the ban on attending safety meetings was not discriminatory. See
Appellant’s Br. at 11 (mentioning safety meetings only once,
when discussing the facts of the case). The district court held that
Mr. Healy’s claim that, in retaliation for his reports of corruption
to his supervisors, he was told not to attend safety meetings was
not supported by the evidence. See R.92 at 15 (noting in particular
that Mr. Healy admitted in his deposition that he in fact did
attend safety meetings in both 1998 and 1999).
Nor does he challenge the district court’s conclusion that Mr.
Rice, Ms. Rice’s successor as the Commissioner of Water, cannot
be held liable for retaliation because he was not aware of Mr.
Healy’s reports of corruption. See id . at 11 (holding that Mr.
Healy does not allege that he ever spoke directly with Mr. Rice
about his claims of corruption at Mayfair, and noting that there
is no other evidence that Mr. Rice knew of Mr. Healy’s concerns).
The district court’s summary judgment order as it relates to Mr.
Rice’s liability is not discussed by Mr. Healy in his brief before
this court.
10
Neither party addresses the issue of whether Mr. Healy’s
statements about corruption are protected by the First Amend-
ment. We therefore have no occasion to address this issue,
including whether Mr. Healy’s statements in any way were
required by his official duties. See Garcetti v. Ceballo s, 126 S.Ct.
1951, 2006 WL 1458026 (2006).
No. 04-3155 15
time his complaints of being denied various promotions,
“Healy does not claim, and [Ms.] Rice does not recall, that
Healy complained of corruption at Mayfair.” R.92 at 11. By
contrast, Mr. Healy claims in his brief that “he informed
[Ms.] Rice of alleged theft at Mayfair during [the 1999]
meeting, although the District Court erroneously concluded
that Healy had not claimed he reported corruption at
Mayfair to [Ms.] Rice.” Appellant’s Br. at 18.
In his deposition, Mr. Healy testified that he told Ms. Rice
about events of employee misconduct at Mayfair before
1993. See R.78, Ex.2 at 311-12 (“[T]hings weren’t being done.
I was guaranteed that she was aware of the problem with
Miller, and I just wanted to make sure. It just seemed like
nothing was getting done. . . . I explained to her that I had
different meetings, different people, and that I was told that,
you know, my name is [expletive] and that I was blamed for
different things.”). But he admits that he did not “complain
to [Ms.] Rice about anything that had happened since June
of 1993.” Id . at 312. In his affidavit, he states: “I told Ms.
Rice that I had many meetings with different people about
my complaints of theft and sabotage at Mayfair and that my
name was [expletive] because I was blamed for different
things.” Id ., Ex.1 at 12. The affidavit contains nothing more
specific with respect to the time frame of these complaints,
specific individuals contacted or events discussed with Ms.
Rice.
Even if Mr. Healy and Ms. Rice did meet and did discuss
corruption at Mayfair or Mr. Healy’s fears of retaliation for
his reports of wrongdoing, as Mr. Healy now claims, Mr.
Healy cannot demonstrate that this conversation had an
effect on subsequent promotion decisions. After the meet-
ing, which Mr. Healy claims occurred in either late January
or early February of 1999, he was denied only two promo-
tions: one in May 2000; the other in July 2000. Ms. Rice,
16 No. 04-3155
however, resigned from her position as DOW Commis-
sioner in late October 1999. Thus, between January 1999 and
her resignation ten months later, she neither made nor
ratified a single employment decision affecting Mr. Healy,
including the denial of promotions in 2000. Mr. Healy
responds that he “interviewed for a promotion in September
or October of [1999].” Appellant’s Br. at 19; see also R.78,
Ex.2 at 315 (Healy Dep.). There is simply no evidence to
support this contention. According to the record, hiring for
both of the 2000 promotions did not commence until
months after Ms. Rice’s resignation. For the May 2000
ACOE promotion, Mr. Healy submitted his application and
was deemed minimally qualified for the position in mid-
April 2000. Interviews were conducted on May 12, May 16
and May 17 in the year 2000. The interview panel’s recom-
mendations were approved by Mr. Rice on June 7, 2000.
Hiring for the July 2000 promotion also began in April
2000. A bid list of minimally qualified candidates was
prepared on April 18, 2000. Interviews were conducted on
June 19, 2000. Mr. Rice offered the top-ranking candidate a
promotion on July 31, 2000. In sum, there is no evidence that
hiring for either position began before Ms. Rice’s resigna-
tion, or that she, post-resignation, influenced her successor’s
choice of candidates for promotion.
Mr. Healy submits, however, that Ms. Rice was aware of
his reports of corruption before their January or February
1999 meeting and influenced the promotion decisions
prior to that date. According to Mr. Healy,
[Ms.] Rice admitted to having knowledge of theft and
corruption by other Water Department employees . . . .
There is no evidence in the record to show that anyone
else besides Healy made reports of theft and corruption.
Therefore, the District Court should have drawn the
reasonable inference that [Ms.] Rice knew Healy had
made the complaints of corruption.
No. 04-3155 17
Appellant’s Br. at 19. Mr. Healy’s bare allegations are
insufficient to survive summary judgment. His argument is
entirely speculative. Indeed, even if Ms. Rice generally was
aware of problems at Mayfair, there is no proof that she
knew specifically that Mr. Healy, as opposed to another
individual, had complained to his supervisors of corruption
at Mayfair. Cf. Luck ie v. Am eritech Co rp ., 389 F.3d 708, 715
(7th Cir. 2004) (“It is not sufficient that [the defendant]
co uld or even sho uld have known about [the plaintiff’s]
complaints; she must have had actual knowledge of the
complaints for her decisions to be retaliatory.” (emphasis in
original)); Miller v. Am erican Fam ily Mut. Ins. Co ., 203 F.3d
997, 1008 (7th Cir. 2000) (“[A]n employer cannot retaliate
when it is unaware of any complaints.”). Nor can an
inference of knowledge or retaliation be drawn from the
circumstances. Although Ms. Rice admits to general knowl-
edge of theft and corruption at Mayfair, neither party
identifies the date on which she acquired such knowledge;
Mr. Healy does not even suggest, much less offer evidence
to support the claim, that Ms. Rice knew of these issues
prior to November 1998—the date of the last promotion
decision before Ms. Rice resigned as Water Commissioner.
Moreover, even if the record contained direct evidence
establishing that Ms. Rice knew of Mr. Healy’s complaints
of corruption and theft prior to November 1998, that
evidence, standing alone, would not justify the denial of
summary judgment. We have held under similar circum-
stances that, “as a matter of law, mere knowledge of the
plaintiff’s protected activity prior to an adverse employ-
ment action does not establish a retaliatory motive.”
11
Sanchez v. Hend erso n, 188 F.3d 740, 747 (7th Cir. 1999).
11
Sanchez and other cases have recognized that, although “mere
(continued...)
18 No. 04-3155
Here, there is no evidence that Ms. Rice played a role in the
formation of the interview panels. Nor is there any evi-
dence, and Mr. Healy does not contend, that these panels
acted as Ms. Rice’s “cat’s paw,” Byrd v. Illino is Dep åt. o f
Pub . Health, 423 F.3d 696, 708 (7th Cir. 2005), in their
ranking of Mr. Healy far down the list of candidates. Mr.
Healy simply has not substantiated factually his claim that
his failure to be promoted is traceable to a “retaliatory
motive” on the part of Ms. Rice. Sanchez, 188 F.3d at 747.
This failure to supply evidence in response to the motion for
summary judgment is dispositive.
B. Francis Blake
Mr. Healy next challenges the district court’s finding that,
although Mr. Blake was aware of Mr. Healy’s reports of
corruption and theft at Mayfair, there was no evidence that
Mr. Blake affected the Commissioner’s promotion decisions.
Mr. Healy invites our attention to two pieces of evidence,
which he believes indicate that Mr. Blake harbored retalia-
tory animus towards him, and, as a result, intentionally
influenced the promotion process: First, in response to Mr.
Healy’s inquiries about why he had not been promoted, Mr.
Blake allegedly stated that promotion decisions come from
the “top down” or from the “Fifth Floor” of City Hall. R.78,
Ex.2 at 534 (Healy Dep.). Second, Mr. Blake allegedly told
(...continued)
knowledge” may not satisfy the plaintiff’s burden, “suspicious
timing can raise an inference of discrimination sufficient to satisfy
the causation element of the prima facie case.é Sanchez v.
Hend erso n, 188 F.3d 740, 747 (7th Cir. 1999). Here, however, the
timing of events is not “suspicious”: Even if Ms. Rice did speak
with Mr. Healy in January or February 1999, the next adverse
employment action did not occur until more than a year later.
No. 04-3155 19
Mr. Healy that the reason he had not been promoted was
because “there’s a political system, that’s the way it works.é
Id .
These submissions are weak reeds indeed on which to
support a retaliation claim. The first comment, which
blames promotion decisions on bureaucratic processes or a
group of unnamed persons at City Hall, tends to absolve
Mr. Blake of any personal responsibility for promotion
decisions, rather than demonstrate any active role on his
part in those decisions. The second might be relevant to Mr.
Healy’s claim that he was not promoted because of his
political affiliations, but it does not support the particular
retaliation claim that he presents in this court. Notably, Mr.
Healy has not pursued his Shak m an or equal protection
claims on appeal.
Even if these comments could be construed to demon-
strate that Mr. Blake harbored retaliatory animus toward the
plaintiff, there is no triable issue of fact on the question of
whether Mr. Blake was responsible for the adverse employ-
ment action suffered by Mr. Healy. Mr. Healy consistently
was ranked low by the interview panels, and the record
compels the conclusion that he was denied promotions
because of poor interview skills rather than because of his
12
reports of theft and corruption at Mayfair. For example, for
12
Mr. Healy responds that his extensive experience at the DOW
demonstrates that he was qualified for a promotion to ACOE.
However, he admits that experience is only one factor that the
Commissioner takes into account when selecting candidates for
promotion. Moreover, this court “do[es] not sit as a
superpersonnel department where disappointed applicants or
employees can have the merits of an employer’s decision
replayed to determine best business practices.” Blise v.
(continued...)
20 No. 04-3155
the August 1998 promotion, Mr. Healy was ranked 12th out
of 21 applicants based on his average interview score; only
the four top-scoring candidates were offered promotions.
For the November 1998 ACOE promotion, Mr. Healy was
ranked 14th out of 30 applicants; only the top six candi-
dates, based on their interview scores, were promoted. For
the November COE 1998 promotion, Mr. Healy was ranked
14th out of 17 applicants; the applicants with the top two
interview scores were promoted. Similarly, in July 2000, Mr.
Healy was ranked 16th out of 19 applicants; the City
promoted the two applicants who achieved the highest
interview scores. In July 2000, he was ranked seventh out of
eight applicants; only the top-scoring candidate was
promoted.
Moreover, even if Mr. Healy is correct that Mr. Blake had
an opportunity to affect the Commissioner’s promotion
decisions, the record demonstrates that Mr. Blake did not
capitalize upon this opportunity. For each of the promotion
decisions in which he had any part, Mr. Blake’s recommen-
dations to the DOP mirrored precisely the recommendations
of the interview panel. As demonstrated by his letters to the
Commissioner, he simply summarized the results of the
interviews and ranked the candidates, premised in signifi-
cant part on the scores assigned by the interview panel. See,
e.g., Blake Memo., R.75, Ex.Q, Tab 3 at 7 (“I concur with the
findings of the [interview] panel and recommend that the
12
(...continued)
Antaram ian, 409 F.3d 861, 868 (7th Cir. 2005) (internal quotation
marks omitted); Ho lm es v. Po tter, 384 F.3d 356, 361-62 (7th Cir.
2004). Even if the individuals selecting candidates for promotion
sho uld have promoted Mr. Healy because of his superior
experience, there is no evidence that the reason they did not do
so is because of his protected speech—rather than because his
interview scores did not pass muster.
No. 04-3155 21
six positions be offered to [the six candidates selected by
that panel].”). Ultimately, in the case of all five promotions,
for a total of sixteen open positions, the candidates recom-
mended by Mr. Blake and promoted by the Commissioner
were the candidates with the highest interview scores. The
record evidence at the very most raises a “metaphysical
doubt” about Mr. Blake’s possible discriminatory animus.
Matsushita Elec. Ind us. Co . v. Zenith Rad io Co rp ., 475 U.S.
574, 586 (1986) (holding that the non-moving party “must
do more than simply show that there is some metaphysical
doubt as to the material facts” to survive summary judg-
ment). It simply would not support a jury verdict in Mr.
Healy’s favor on his retaliatory discharge claim.
Mr. Healy criticizes the district court’s reliance on inter-
view results; he contends that the scores assigned by the
panels were themselves discriminatory. He submits that Mr.
Blake “ratified decisions made by those who held a discrim-
inatory animus towards Healy,” primarily members of the
interview panels. Appellant’s Br. at 22. Mr. Healy, however,
presents us with no factual basis for his allegation that the
interviewers harbored “a discriminatory animus” toward
him. Id . Indeed, he identifies no evidence that any of the
members of post-1998 interview panels even k new o f Mr.
Healy’s reports of corruption, much less that they were
13
motivated by those reports in scoring the candidates.
13
Mr. Healy deposed only three of the many members of the
interview panels: two from pre-1998 interview panels and one
who participated on an interview panel for a post-1998 promo-
tion. The first, Tom Special, a COE at Mayfair, sat on a pre-1998
panel that interviewed Mr. Healy for a promotion. He described
this interview in his deposition as “interesting,” explaining that
“Mr. Healy at some point near the end of the interview launched
into a discussion of things going on at, I believe, Mayfair at the
(continued...)
22 No. 04-3155
(...continued)
time. . . . [W]e were all looking at each other like, what’s this got
to do with the interview?” R.78, Ex.5 at 59-60.
At most, Special’s testimony demonstrates that, unprovoked,
Mr. Healy inappropriately raised his concerns about corruption
and theft at Mayfair during an interview. It does not establish
that Special or other members of the interview panels chose to
not promote Mr. Healy because of his First Amendment activities.
Id . at 80 (specifying that the interview was strange because Mr.
Healy expressed concerns that were unrelated to questions asked
by the panel); see also id . at 62 (explaining that Mr. Healy had
difficulty answering standard interview questions, including one
“pertaining to electric plants operation”). Moreover, even if
Special’s testimony does prove that his motives were improper,
there is no evidence that Special influenced post-1998 promotion
decisions.
Second, Mr. Healy deposed Rob Cannatello. See id ., Ex.10. Like
Special, Cannatello did not sit on any of the five interview panels
relevant to this appeal and there is no evidence that he influenced
the post-1998 promotion decisions at issue in this appeal.
Moreover, the portions of the deposition testimony attached to
the plaintiff’s response to the motion for summary judgment do
not indicate that Cannatello harbored retaliatory animus towards
Mr. Healy or that he even knew of Mr. Healy’s reports of
corruption at Mayfair.
Mr. Healy also deposed Dominick Cantore, Jr., a member of the
interview panel for the November 1998 promotion, as well as for
the December 1998 promotion. See id ., Ex.19. Cantore, however,
was not asked in his deposition whether he was aware of Mr.
Healy’s reports of corruption and theft at Mayfair. Nor did he
give any indication that his or his colleagues’ decisions were
influenced in any way by Mr. Healy’s activities. Id .
Mr. Healy points to no other evidence in the record that
demonstrates a discriminatory motive or knowledge of his
(continued...)
No. 04-3155 23
Mr. Healy also submits that the interview scores were
“subjective,” that the questions asked of candidates were
inconsistent and that the questions asked of him specifically
14
were irrelevant and too personal. Appellant’s Br. at 24-25.
It does appear that the DOW prepared a standard list of
questions that the interviewers were to ask of all candidates
15
for each position opening. See also R.78, Ex.5 at 65 (Special
(...continued)
complaints on the part of interviewers.
14
For example, in his deposition, Mr. Healy recounted one of his
interviews as follows:
The only thing is I would—you know, I talked to some
people that interviewed and they’d have—they’d have
like different questions, but, you know, some people
would be asked six to eight things, some people—I
mean, some interviews, it was like three or four ques-
tions.
...
Now—the one question was, Did you put down who
to call in case of emergency? You know, like what does
that have to do with—it had nothing to do with steam
experience, you know?
R.78, Ex.2 at 386-87; se e also id . at 383-84 (recounting that one
interviewer asked him what he would do if “someone came to
work drunk”); id . at 386-89 (describing other allegedly abnormal
questions asked of him at various interviews, including questions
about the weather).
15
For example, for the August 1998 ACOE promotion, the
interview panel was given a list of nine questions to ask of
candidates, with sample answers. See R.75, Ex.Q, Tab 1 at 12. For
the November 1998 COE promotion, the panel was given a list of
seven questions to ask of candidates, which ranged from, “[T]ell
(continued...)
24 No. 04-3155
Dep.) (testifying that the “same questions” were asked of
“each candidate”). Mr. Healy alleges that he was asked only
five of the nine “standard” questions in his August 1998
ACOE interview; only four of the seven questions in his
November 1998 COE interview; only four of the ten ques-
tions in his November 1998 ACOE interview; and only five
of the twelve questions in his July 2000 ACOE interview. See
id ., Ex.1 at 3-5 (Healy Aff.).
However, there is no evidence that other, similarly
situated candidates were consistently asked these omitted
stock questions. Nor is there evidence implicating Mr. Blake
in any wrongdoing. The City provided each interviewer a
list of questions to ask each candidate. That Mr. Healy may
not have been asked all or some of these questions by the
members of the interview panel, in the absence of any
indication that Mr. Blake requested or mandated that the
interviewers depart from the standard list of questions, is
the fault of the interviewers, not of Mr. Blake. Moreover, as
(...continued)
us about your background as an operating engineer,” to, “[W]hy
do you believe that you are qualified[?]” Id ., Ex.2 at 6. The same
is true of the November 1998 ACOE promotion; there was a list
of ten questions provided to the interview panel. Id ., Ex.3 at 9
(including questions about the candidate’s background, as well
as technical knowledge about “speed pump[s],” “centrifugal
pump[s]” and “flooding condenser[s]”). For the July 2000
interview, twelve questions were provided to the interview
panel. Id ., Ex.5 at 7.
The record is unclear as to whether the interview panel was
given a list of interview questions for the May 2000 interviews.
Three separate documents were produced by the DOW, each
containing a number of questions purportedly asked of inter-
viewees. Id ., Ex.4 at 7-9.
No. 04-3155 25
already discussed, there is no evidence that the interviewers
were aware of Mr. Healy’s reports of theft and corruption at
Mayfair—much less that they were m o tivated in the asking
of questions and the scoring of candidates by his First
16
Amendment activities.
C. Municipal Liability
Because Mr. Healy has failed to demonstrate that persons
with policymaking authority over promotion decisions
retaliated against him on the basis of his reports of corrup-
tion and theft at Mayfair, we need not address Mr. Healy’s
municipal liability arguments. In the absence of evidence of
wrongdoing carried out by City employees, the City may
not be held vicariously liable. See Rasche v. Vill. o f Beecher,
336 F.3d 588, 597 (7th Cir. 2003) (explaining that, for a
municipal corporation to be held liable under § 1983, there
must be an “express policy,” a “widespread practice” of
retaliation or “constitutional injury . . . caused by a person
with final policymaking authority”).
16
The defendants cite Blise v. Antaram ian, 409 F.3d 861, 868 (7th
Cir. 2005), for the proposition that the subjective evaluation of
candidates is “entirely appropriate,” given that personal qualities
factor heavily in many employment decisions. Blise, however, is
inapposite. Although, as we explained in Blise, there is no
requirement that all job applicants be asked the same questions,
when the employer sets forth a standard list of questions to be
asked of candidates, a departure from that standard is suspicious.
We need not reach whether, in this case, the questions asked of
Mr. Healy create a triable issue of fact concerning whether the
interviewers acted in a discriminatory manner. Absent evidence
supporting the allegation that the interviewers knew of Mr.
Healy’s complaints, and absent evidence that Mr. Blake knew of
and encouraged the panel’s departure from stock questions, Mr.
Healy has failed to sustain his burden of production.
26 No. 04-3155
Conclusion
The district court properly found that the plaintiff did not
present sufficient evidence that his reports of wrongdoing
in his workplace were a motivating factor in the defendants’
adverse employment decisions. We affirm the district
court’s grant of summary judgment in favor of the defen-
dants.
AFFIRMED
A true Copy:
Teste:
_______________________________
Clerk o f the United States Co urt o f
Ap p eals fo r the Seventh Circuit
USCA-02-C-0072—6-16-06 | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540808/ | SENTENCIA
Comparecen la Sra. Haydeé Ortiz González y el Sr. José Rivera, quienes por separado solicitan la revocación de la sentencia emitida por el Tribunal de Apelaciones para el caso de referencia. La señora Ortiz González argumenta que el foro apelativo erró al exonerar de responsabilidad a su antiguo patrono, Caribbean Restaurants, por los actos de hostigamiento sexual en el empleo a los que estuvo sujeta. Por su parte, el señor Rivera plantea que dichos actos no constituyeron hostigamiento sexual y, en la alter-nativa, que Caribbean Restaurants respondía solidaria-mente. Veamos.
I
La Sra. Haydeé Ortiz González trabajó para la empresa Caribbean Restaurants como empleada parcial irregular del establecimiento de comida rápida Burger King de Villa Blanca, en Caguas, desde el 9 de noviembre de 1999 hasta el 5 de septiembre de 2000, fecha cuando presentó su renuncia. Previo a comenzar en su empleo, recibió las po-*3líticas contra el hostigamiento sexual adoptadas por la em-presa, las normas de conducta y la información de los pro-cedimientos para dilucidar diferencias. Dicha política requería que se realizara una querella escrita y establecía dónde debía presentarse. El restaurante también tenía afi-ches contra el hostigamiento sexual y una línea especial para atender querellas. Además, luego de comenzar su em-pleo, la señora Ortiz recibió un adiestramiento especial so-bre hostigamiento sexual.
En el Burger Kang de Villa Blanca había un gerente, la Sra. Daisy Vázquez, y un subgerente, el Sr. José Rivera. La señora Ortiz González alega que el señor Rivera comenzó a hostigarla sexualmente entre mayo a agosto de 2000. Se-gún la sentencia del Tribunal de Primera Instancia éste le expresó frases tales como: “mami, ¿todo eso es tuyo?”; “si te cojo, te saco la habichuelita”, y “a ti lo que te hace falta es un buen beso de lengua”. También, argüyó que cuando el señor Rivera pasaba por espacios limitados se rozaba contra su cuerpo y que, cuando él estaba a cargo, le imponía tareas que propiciaran pasar cerca de ella para rozarla, aprovechando su autoridad. La señora Ortiz señaló que quedó muy ofendida con los actos del subgerente y que así lo hizo saber a la gerente.
Conforme a los señalamientos del Tribunal de Primera Instancia, en una ocasión el señor Rivera le dijo a la señora Ortiz González que “soltara el cabrón teléfono”. Por ello, el 27 de agosto de 2000 ella se quejó con la gerente Vázquez, lo cual produjo una reunión en la que el señor Rivera ad-mitió lo sucedido y pidió disculpas a la empleada. No obs-tante, al finalizar la reunión, Rivera le indicó a Ortiz que “si la cosa estaba mala, se iba a poner peor”. La empleada trató de comentar lo ocurrido a la señora Vázquez, pero ésta no la atendió.
El 30 de agosto de 2000, la señora Ortiz González indicó a la señora Vázquez que quería presentar una queja de *4hostigamiento sexual contra el señor Rivera. La señora Vázquez habló con el supervisor de área, quien le reiteró que debía hacerse una reclamación escrita. Al próximo día, la señora Ortiz González quiso retirar la queja, pero se le indicó que, por haber sido alertados, debían investigar y seguir los procedimientos de la empresa. Por ende, se pro-siguió con la queja y se notificó al señor Rivera de la misma. Además, se le instruyó a éste que no podía ir a trabajar hasta tanto culminara la investigación.
El 5 de septiembre de 2000 se celebró una reunión en las oficinas centrales de la empresa con el propósito de dirimir la queja. La señora Ortiz González expresó las fra-ses inapropiadas que el subgerente le decía y contó que en una ocasión éste extendió su mano para tocarla. También hizo referencia al incidente de la frase soez. La empresa citó posteriormente al señor Rivera, quien renunció volun-tariamente para evitar ser despedido.
Conforme a las determinaciones del Tribunal de Primera Instancia, la señora Ortiz González fue víctima de mofas en el empleo, ya que todos los compañeros se ente-raron de lo ocurrido. Le decían “no me toques que te de-nuncio por hostigamiento sexual”, entre otras bromas. De hecho, la señora Ortiz González alegó que la gerente, la señora Vázquez, patrocinó y permitió las bromas. Incluso, mencionó que el señor Rivera fue a visitar el establecimiento mientras la señora Ortiz González estaba en funciones, todo ello con anuencia de la gerente.
El 13 de noviembre de 2000, la señora Ortiz González y otro empleado sometieron queja escrita contra la señora Vázquez. Se entrevistaron con personal del departamento de recursos humanos, al cual indicaron que la gerente no cumplía con el manual de la empresa y que no tenía buena relación con su personal. Mencionaron que ésta los ofendía, les gritaba y utilizaba lenguaje soez frente a otros compa-ñeros, clientes e invitados. Personal del departamento acu-dió al restaurante a entrevistar a los empleados, los cuales favorecieron a la gerente.
*5Posteriormente, la señora Ortiz González solicitó tras-lado por problemas personales con la señora Vázquez. No satisfecha con la resolución de su queja, la empleada re-gresó al departamento de recursos humanos e indicó que la gerente le redujo sus horas en represalia por haber presen-tado la querella de hostigamiento sexual contra el señor Rivera.
Días después, la señora Vázquez le informó a la señora Ortiz González que se le había trasladado al restaurante de Plaza Centro donde no se le garantizaría el mismo horario. La señora Ortiz González, indignada, alzó la voz y dijo “que se vayan todos al carajo; esto no se va a quedar así”. El 26 de marzo de 2001, la señora Ortiz González presentó otra queja escrita contra Vázquez en la oficina de recursos humanos, por la reducción de horarios y proble-mas con la documentación de desempleo. Esta oficina vol-vió a recomendar el traslado de la señora Ortiz González, pero esta vez a un lugar más cerca de la residencia de la empleada. No obstante, ésta decidió renunciar el 19 de abril de 2001.
Así las cosas, la señora Ortiz González presentó una demanda contra su patrono, la señora Vázquez y el señor Rivera por despido injustificado, hostigamiento sexual en el empleo y represalias ante el Tribunal de Primera Instancia. El Tribunal emitió sentencia en la que dispuso que la señora Ortiz González no logró evidenciar que su renuncia se debiera a las condiciones onerosas que le im-puso la empresa por haber acusado de hostigamiento al señor Rivera. Es decir, concluyó que no se trató de un des-pido constructivo.
Sin embargo, determinó que hubo hostigamiento sexual por parte de Rivera y, por ende, del restaurante. Mencionó que “[r]ealmente hay que reconocer que la alta jerarquía de Caribbean Restaurants trató el hostigamiento sexual de Rivera hacia la demandante de una manera adecuada. Tan pronto advino en conocimiento del hostigamiento lo docu-*6mentó, inmediatamente suspendió a Rivera, eliminando así la causa del hostigamiento”. Caso Núm. CC-2009-0243, Parte Ira, Certiorari, Apéndice, págs. 255 — 256. En fin, el Tribunal concluyó que la empresa realizó actos afirmativos para evitar el hostigamiento y desalentarlo, pero que “des-afortunadamente” la empresa respondía por ser el señor Rivera supervisor conforme al Artículo 5 de la Ley Núm. 17 de 22 de abril de 1988 (en adelante Ley Núm. 17), 29 LPRA sec. 155d. Además, indicó que la señora Vázquez fue negli-gente al no mantener un ambiente ordenado luego de la investigación de hostigamiento, y que por ello también de-bía responder el patrono. Ordenó a los demandados pagar $10,000 por los daños y perjuicios y angustias mentales provocadas por los actos del señor Rivera y $1,000 por los actos de la gerente. Además, impuso costas y $2,750 en honorarios de abogado.
Todas las partes acudieron por separado al Tribunal de Apelaciones para solicitar la revisión de la misma sentencia. La señora Ortiz González alegó que las cuantías concedidas estaban muy por debajo de los daños causados y que la Ley Núm. 17 requería que se duplicara la suma concedida, mientras que el patrono argumentó que erró el Tribunal de Primera Instancia al imponerle responsabili-dad vicaria a pesar de haber cumplido plenamente con la ley y al responsabilizarlo por daños que la demandante pudo haber evitado de haber utilizado los mecanismos es-tablecidos por la empresa; que los actos del señor Rivera no constituyeron hostigamiento sexual, y que tampoco proce-día la imposición de honorarios de abogados.
Por su parte, el señor Rivera se opuso al recurso de la señora Ortiz González y sostuvo que no se cumplieron los elementos de hostigamiento sexual. En la alternativa, alegó que no se demostró que el hostigamiento causara cambios en los términos y las condiciones del empleo de la señora Ortiz González. También impugnó que se estable-ciera que existió un patrón no consentido de conducta de-*7gradante e intentos de roces corporales. Finalmente, plan-teó que, en caso de entenderse que hubo hostigamiento, el patrono debía responder ya que se trataba de un asunto de responsabilidad absoluta.
El Tribunal de Apelaciones emitió sentencia en la cual exoneró a Caribbean Restaurants de responder por hosti-gamiento sexual. Aseguró que el patrono cumplió con su deber al actuar conforme a sus procedimientos y al promo-ver activamente una política de prevención. Incluso ordenó al señor Rivera pagar exclusivamente los honorarios de abogado concedidos por el foro primario. En cuanto a los daños concedidos por los actos de la gerente, el foro apela-tivo mantuvo la responsabilidad impuesta al patrono. Por último, el Tribunal de Apelaciones estuvo de acuerdo con la compensación otorgada por el foro primario, mas duplicó las cuantías en cumplimiento del Artículo 11 de la Ley Núm. 17, 29 LPRA sec. 155j.
Evaluados los planteamientos esbozados por ambas partes, resolvemos que erró el Tribunal de Apelaciones al exo-nerar de responsabilidad a Caribbean Restaurants. Por lo tanto, se modifica la sentencia recurrida y se ordena a to-dos los demandados satisfacer solidariamente a la señora Ortiz González las partidas siguientes: $10,000 por daños y perjuicios y angustias mentales por los actos de hostiga-miento sexual cometidos por el subgerente Rivera en viola-ción al Artículo 3 de la Ley Núm. 17, 29 LPRA sec. 155b; $1,000 por los daños y perjuicios ocasionados por la super-visara Vázquez al permitir un ambiente de humillación posterior al momento cuando la demandante delató el pa-trón de hostigamiento sexual del señor Rivera, al amparo del Artículo 1803 del Código Civil, 31 LPRA see. 5142; cos-tas, y $2,750 en honorarios de abogado. Además, duplica-mos la cuantía de $10,000 concedida a la demandante por los actos de hostigamiento sexual de los que fue víctima, conforme al mandato del Artículo 11 de la Ley Núm. 17, supra.
*8Así lo pronunció, manda el Tribunal y certifica la Secre-taria del Tribunal Supremo Interina. La Juez Asociada Se-ñora Rodríguez Rodríguez emitió una opinión de conformi-dad, a la que se unieron el Juez Presidente Señor Hernández Denton, la Jueza Asociada Señora Fiol Matta y el Juez Asociado Señor Estrella Martínez. El Juez Asociado Señor Rivera García emitió una opinión de conformidad, a la que se unieron los Jueces Asociados Señores Martínez Torres, Kolthoff Caraballo y Feliberti Cintrón. La Jueza Asociada Señora Pabón Charneco no interviene.
(.Fdo.) Camelia Montilla Alvarado Secretaria del Tribunal Supremo Interina | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/128918/ | 538 U.S. 980
ZIMMERMAN ET UX.v.COMMISSIONER OF INTERNAL REVENUE.
No. 02-1365.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
2
C. A. 10th Cir. Certiorari denied. Reported below: 53 Fed. Appx. 19. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128944/ | 538 U.S. 982
McCOWANv.CALIFORNIA.
No. 02-8990.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF CALIFORNIA FOR THE SECOND APPELLATE DISTRICT.
2
Ct. App. Cal., 2d App. Dist. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1485983/ | 944 F.Supp. 1096 (1996)
Bernard ZOLNOWSKI, Jr., et al., Plaintiffs,
v.
COUNTY OF ERIE, et al., Defendants.
No. 95-CV-774A(F).
United States District Court, W.D. New York.
October 3, 1996.
*1097 Lipsitz & Ponterio (Nan Lipsitz Haynes, of counsel), Buffalo, NY, Sliwa & Lane (John A. Ziegler, of counsel), Buffalo, NY, Glenn Edward Murray, Buffalo, NY, for plaintiffs.
Kenneth P. Schoetz, Erie County Attorney, James A.W. McLeod, Second Assistant County Attorney, of counsel, Buffalo, NY, for defendants Erie County, Thomas Higgins, Sheriff of Erie County, John Dray, Superintendent of the Erie County Holding Center, Frederick Netzel, Superintendent of the Erie County Correctional Facility.
DECISION AND ORDER
FOSCHIO, United States Magistrate Judge.
JURISDICTION
This matter was referred to the undersigned by order of the Hon. Richard J. Arcara entered May 15, 1996. A consent to proceed before the undersigned was filed July 12, 1996.
BACKGROUND
This civil rights action was brought under 42 U.S.C. § 1983 initiated on September 9, 1995 when Plaintiff, Bernard J. Zolnowski, Jr., filed a pro se complaint on behalf of himself and all other persons similarly situated challenging conditions of confinement based on overcrowding at Defendants' local jail, the Erie County Holding Center, located at 10 Delaware Avenue, Buffalo, New York operated by Defendant Thomas Higgins, the Sheriff of Erie County and Defendant John Dray, Superintendent of the Holding Center and the Erie County Correctional Facility located in Alden, New York operated by the *1098 County of Erie and supervised by Defendant Frederick Netzel, superintendent of the facility. Plaintiff also sued the New York State Commission of Corrections, a state agency responsible for the establishment and enforcement of minimum standards regulating the conditions of confinement for incarcerated persons in correctional facilities in the state. Plaintiffs seek money damages and injunctive relief based upon alleged violations of their right to due process under the Fourteenth Amendment and the protection against cruel and unusual punishments as guaranteed by the Eighth Amendment.
On October 4, 1995, Plaintiff Zolnowski, who had then been released from the jail, filed an amended complaint adding four other persons as plaintiffs, but signed only by himself, specifically alleging a class action for violation of these same constitutional rights. However, neither the complaint nor the amended complaint was served in accordance with Fed.R.Civ.P. 4(m). Later, on January 8, 1996, Zolnowski moved to certify the class as described in the amended complaint. The motion was opposed by Defendants by papers filed on June 17, 1996.
Plaintiffs, represented by counsel, moved on July 16, 1996, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction and an expedited hearing. Defendants opposed the motion by papers filed July 19, 1996, and moved to dismiss for failure to state a claim and lack of personal jurisdiction based upon Plaintiffs' failure to complete service. Specifically, Defendants asserted that Plaintiffs had failed to plead a constitutional violation and were without standing to request injunctive relief in their individual capacities or as representatives of the alleged class. Defendants further moved, pursuant to Fed.R.Civ.P. 19, to add, as necessary party defendants, the New York State Division of Parole and the New York State Division of Correctional Services. The New York State Division of Parole and Division of Correctional Services opposed the County defendants' motion to add them as parties. By motion filed July 18, 1996, Defendant Commission of Corrections moved to dismiss as to itself on the ground that it was not a person subject to suit in this Section 1983 action.
In response to Defendants' motion to dismiss under Rule 4, Plaintiffs' moved on July 15, 1996 for leave, for good cause shown, to serve the complaint and amended complaint outside the prescribed 120 day period pursuant to Fed.R.Civ.P. 4(m). Plaintiffs further moved, on July 23, 1996, for leave to file a Second Amended Complaint adding as new plaintiffs two persons then being held at the jail.
At a hearing on Plaintiffs' motion for preliminary injunction on July 22, 1996, the court granted Plaintiffs' motion to serve the Complaint and First Amended Complaint beyond the 120 day period, granted the Defendant New York State Commission of Corrections' motion to dismiss, and denied the county Defendants' motion to add the New York State Division of Parole and Department of Correctional Services as parties. The court also denied the county Defendants' motion to dismiss in so far as it had contended that the Complaint and First Amended Complaint failed to state a claim, reserving decision on the questions of Plaintiffs' standing and Defendants' alternative contention that the First Amended Complaint had not been properly executed by all plaintiffs when filed and therefore was subject to dismissal for failure to comply with Fed.R.Civ.P. 11(a).
On July 26, 1996, the court orally entered its decision on the record finding that Zolnowski had standing to seek both money damages and injunctive relief as to the proposed class and that the Plaintiffs, who had not executed the First Amended Complaint, should be given an opportunity to do so. The court also held that the amended complaint was not subject to dismissal as to Plaintiff Zolnowski as he had timely executed the pleading when it was filed, and that the Defendants' motion to dismiss was therefore denied in all respects. The court further found that Plaintiffs' motion for leave to file a Second Amended Complaint should be granted provided the amended complaint was served not later than July 29, 1996, the scheduled date for the commencement of the hearing on Plaintiffs' motion for a preliminary injunction.
The court also granted Plaintiffs' motion for certification of a class finding that the *1099 First Amended Complaint and Second Amended Complaint satisfied the requirements of Fed.R.Civ.P. 23(b)(2), and that there was no necessity at that point to provide special notice pursuant to Fed.R.Civ.P. 23(d)(2). The class certified included persons, both pre-trial detainees and sentenced prisoners, who had been in custody at the Erie County Holding Center as of September 9, 1995 and who may thereafter be in custody at the Holding Center. The court notes that its certification did not include persons confined at the Correctional Facility as Zolnowski was not at the time his complaint was filed confined in the Correctional Facility he would not have had standing to seek injunctive relief as to conditions at the Correctional Facility nor serve as a class representative for purposes for either an equitable remedy or money damages.
The hearing on the preliminary injunction was conducted over the next four days. Following the conclusion of testimony on August 2, 1996, with agreement of the parties, the court was given a tour of the Holding Center thereby enabling it to make observations of the conditions which had been described during the hearing.
In their motion, Plaintiffs' requested that the Defendants be restrained from exceeding the maximum capacities of the Erie County Correctional Facility which is 525 prisoners, and 610 prisoners for the Holding Center. Plaintiffs contend that as a result of incarcerating persons in excess of these maxima, Defendants have created a serious risk to the health and safety of members of the Plaintiff class constituting punishment for those class members who are pre-trial detainees while housed at either facility in violation of their right to due process of law under the Fourteenth Amendment, and, for those class members who are convicted persons, cruel and unusual punishment in violation of the Eighth Amendment. Although Plaintiffs' motion for preliminary relief is directed to both the Holding Center and County Correctional Facility, the evidence at the hearing provided more of a comparison of the conditions between the two facilities than a showing of any alleged inadequate conditions at the Correctional Facility. As noted, Zolnowski lacks standing to seek injunctive relief as to the Correctional Facility and none of the Plaintiffs in the Second Amended Complaint were alleged to be confined in that facility. Moreover, in plaintiffs' post-hearing proposed findings of fact and conclusions of law filed August 9, 1996, Plaintiffs requested relief only as to the Holding Center. Plaintiffs' Findings of Fact, Conclusions of Law and Preliminary Injunction filed August 9, 1996 at 13. Accordingly, the motion must be viewed as only directed against conditions in the Holding Center. Supplemental oral argument was conducted September 26, 1996. For the reasons which follow, Plaintiffs' motion for a preliminary injunction is GRANTED in part, and DENIED in part.
FACTS[1]
At the hearing, the court received testimony from Steve Brown, a reporter and news-caster with a local television station, Channel 7, WKBW-TV, who testified about his observation of conditions at the Holding Center during a tour conducted on June 27, 1996. A video tape recording of the tour was made at that time and a copy of the tape was admitted into evidence as Plaintiffs' Exhibit A and played in court. In his testimony, and as confirmed by the video, Brown described the housing of prisoners in various areas within the Holding Center including several rooms located on the ground floor of the jail called "court hold rooms." The areas, explained in the later testimony of Superintendent Dray, were originally designed to hold prisoners while they awaited transfer to court, but the rooms are presently being used to house prisoners for various lengths of time until an individual cell became available elsewhere within the jail. The rooms are of varied dimensions ranging in size from approximately eight feet by sixteen feet for the smallest room to twenty-four feet by thirty feet for the largest, court hold room # 7. Brown testified that he saw fifteen male prisoners in court hold room # 7 lying on sleeping *1100 pads placed on the floor of the room leaving little space to move about the room a fact clearly observable on the video. The room has one toilet which is in a corner area with a bed sheet drawn across it to provide some privacy when in use. Another sequence in the video and as described by Brown shows an area, identified as the atrium, which is an area inside the jail in which both bunk beds and sleeping "mats" on the floor are used by female prisoners. In this area, about fifteen feet wide and forty-five feet long, approximately twelve bunk-beds were placed. The mats are made of coarse cotton stuffed inside of a vinyl-like material approximately two and one-half feet by four and one-half feet in size.
Brown also described the use of the jail's gymnasium which is used as a living area to house about fifty prisoners by positioning one mat for each prisoner around one-half of the outer perimeter of the basketball court in the gymnasium. There was no recreational activity going on during Brown's observations in the gym. The other one-half of the basketball court was being used as a common living area for tables and chairs where the prisoners could eat their meals, play board or card games or watch television and generally use this space for every day living. Brown testified that a deputy sheriff, who escorted Brown on the tour, told him that the observed overcrowded conditions created a difficult and stressful situation for both prisoners and staff. The deputy also told Brown that although the Holding Center staff would like to do more for the prisoners in providing better living arrangements, they were unable to do so.
The video also showed an area adjacent to one of the regular cell-blocks in which approximately thirteen persons were housed in a room measuring eighteen feet by twelve feet with about one-half of the occupants sleeping on mats; the others on bunk-beds. According to Brown, the deputy sheriff who escorted him also stated that as result of the overcrowding in the jail the prisoners' access to recreation was limited. The deputy also told Brown that it was not unusual for prisoners to be housed at the jail for two or three days and that 848 prisoners were housed in the facility that day.
Bernard J. Zolnowski, the lead Plaintiff, also testified and described his experience at the Holding Center following his arrest on felony drunk driving charges on April 25, 1995. Zolnowski stated that after completing the standard booking procedure, he was held in one of the court hold rooms which he described as having dimensions of approximately ten feet by twenty-five feet along with fourteen other persons. Each prisoner was given one of the vinyl covered mats and a blanket for sleeping on the floor of the room. In the room there was one sink and toilet which lacked any modesty panels and was covered with a bed sheet held in place with plastic forks and spoons. According to Zolnowski, during his confinement which lasted two or three days until his subsequent transfer to the Erie County Correctional Facility, Defendant Erie County's penitentiary, the toilet in the court hold room was "filthy" and backed up at least once during his stay in the court hold room, the floor was dirty and covered with cigarette ashes, refuse from meals and dust from the blankets, and one of the other prisoners vomited in the toilet, which because of the confined area caused Zolnowski to become "physically ill." Zolnowski stated that because the benches in the room, which are attached to the walls, were themselves employed as make-shift beds by those prisoners who wished to use them in this way, the remaining prisoners had to eat their meals sitting on their sleeping mats on the floor.
Zolnowski testified that because of the lack of space in the court hold room, some of the sleeping mats had to be located approximately one foot from the toilet. Food wastes were discarded into a large plastic trash bag kept in the room which was not removed until the end of the guard's shift, meanwhile attracting or generating numerous fruit flies. As Zolnowski also testified, the bugs, when added to the strong body odors caused by the sweaty prisoners in the room and the dirty toilet and residual effects of the vomiting, created an environment unfit for the day-to-day housing of human beings. Although Zolnowski did not say there were any *1101 other insects observed while he was in the court hold room, he did recall seeing a cockroach in a meal which was served to him when he was later assigned to a standard cell block area located elsewhere in the jail. Zolnowski stated that the court hold room (both the prisoners and jail staff commonly refer to the court hold rooms as "bull-pens") was inadequately ventilated and the prisoners were forced to sleep under bright security lights which were left on at all times. According to Zolnowski, the room lacked any outside windows, the only window being one in the hallway wall through which jail staff and other persons who may be passing through the hallway could observe the prisoners in the room.
Zolnowski further testified that on July 7, 1995, he was sentenced on a bad check charge and transferred to the Erie County Correctional Facility, as a sentenced prisoner, for seven days, at which point he was transferred back to the Holding Center as a pre-trial detainee on his original drunk driving charges, from which he was subsequently released on September 21 1995 Zolnowski compared his experience at the Holding Center to the Correctional Facility by stating that he was treated "better as a sentenced prisoner" at the Correctional Facility than he was as pretrial detainee at the Holding Center. Zolnowski was not cross-examined.
Frederick Netzel, superintendent of the Erie County Correctional Facility also testified. Netzel explained that the purpose of his facility was to incarcerate convicted persons for the service of their prescribed sentence involving less serious state felonies and local court misdemeanor convictions, and to provide temporary housing for pretrial detainees transferred from the Holding Center as well as convicted persons adjudicated as parole violators or parolees awaiting a hearing for an alleged parole violation.
Additionally, the Correctional Facility is required to provide temporary housing for persons convicted of more serious state felonies and who are awaiting transfer to a more secure state operated penitentiary. Persons awaiting such transfer, including adjudicated parole violators and convicted state felons are, according to Netzel, considered as "state ready" prisoners whom, under state law, are supposed to be transferred by the state within ten days of their arrival at the Correctional Facility. However, as Netzel also explained, because of overcrowding at New York state correctional facilities, the required timely transfers of such "state ready" prisoners is often delayed thereby contributing to the overcrowded conditions at both the Correctional Facility and Holding Center. Netzel stated that as of the day of his testimony, July 30, 1996, his facility housed 133 state ready prisoners whom had been housed there for more than the maximum ten day period. According to Plaintiffs' Exhibit O, as of August 1, 1996, of the sixty-four sentenced prisoners ready for transfer to a state prison, fifty-one had been housed at the Holding Center over ten days. Further, of the thirty-eight state parole violators held in the Holding Center as of that date, seven were over ten days.
Netzel also testified that the New York State Commission of Corrections ("the Commission") has the authority under state law to establish minimum standards for the conditions of confinement of persons in correctional facilities located within the state. According to Netzel, the Commission requires a minimum of between fifty to seventy square feet per prisoner depending upon the design of the confinement space. Plaintiffs' Exhibit D, which is a copy of the regulations as adopted by the Commission, states that the minimum living area required for an individual housing unit, i.e., a jail cell designed for one person, is sixty square feet and, in the case of multiple housing, i.e., areas in which individual cells are grouped around a common living area or "day room," the minimum area is to be fifty square feet of living space in the inmate's individual sleeping area or cell.
In the case of that portion of the Holding Center constructed after 1977, the original effective date of the regulations, in which the court hold rooms are located, such multiple housing areas are referred to podular units or "pods." The older areas of the Holding Center contain individual cells with toilets and sinks but without access to common areas like the pods. These areas are the linear *1102 cell blocks or "linears." The Commission's regulations, according to Exhibit D, also require that each inmate housed in an individual cell shall have one bed and mattress, one functioning toilet and a sink. For inmates housed in a multiple living unit like the pods, the regulation requires a minimum of one toilet, shower, and sink for every eight inmates. There was no evidence presented that the linear cells or podular areas of the Holding Center are not in compliance with the Commission's regulations.
While Netzel confirmed that the regulations apply to his facility, he also explained that as a result of occasional intake of prisoners in excess of the maximum capacity established for his facility by the Commission, it is necessary to assign prisoners to areas within the facility that were not designed for housing, such as hallways. However, Netzel also testified that such extraordinary housing must be approved by the Commission by applying for and receiving a "variance" or permission from the Commission permitting the facility to deviate from an applicable regulation on a temporary basis. In such instances, Netzel assigns the affected prisoners a cot so that the prisoner is able to sleep off the floor and is more comfortable and able to "sleep better" than if required to sleep on a mat on the floor. Netzel stated that he found the practice of requiring prisoners sleep on mats placed on the floors of the court hold rooms at the Holding Center "troublesome." Netzel elaborated on this opinion by explaining that when a prisoner is given a cot for temporary sleeping he is able to place his personal belongings under it thereby avoiding the likelihood that other prisoners will trip over the items which, according to Netzel, is a cause for arguments that may escalate into fights between prisoners. However, even in such overcrowded conditions as exist at the Correctional Facility, Netzel takes steps to assure that the affected prisoners are all assigned bunk beds or cots and are able to eat their meals using a table and chair and that the security lights in the sleeping areas are dimmed at night to facilitate sleep. Netzel agreed that at times the Correctional Facility is overcrowded in that it has a population of both incarcerated persons serving sentences and persons detained awaiting trial who are temporarily housed at his facility because of overcrowding at the Holding Center.
However, Netzel also stated that the Commission has granted "variances" permitting such additional housing arrangements in response to the need to house more prisoners than the facility was designed to accommodate and that the Commission regulates any additional housing of prisoners at the facility. For example, as of the day of his testimony, the facility had 634 prisoners with an approved maximum capacity of 660 including the variances granted by the Commission. In contrast, according to Netzel, the capacity of the Facility as originally designed, was 402 persons. As Netzel explained, penal institution administrators in New York state, like himself, "cannot arbitrarily move people around" to accommodate a particular need for additional housing at a facility, rather, they have a "duty to limit housing to within what [capacity and areas within the facility] the Commission allows" including variances which may be granted by the Commission. Such variances, according to Netzel, may be granted by the Commission on a monthly or even daily basis. Netzel believes that the Commission's decision to grant variances to facilities for housing of prisoners in areas of a facility which were not originally designed for such housing on a regular basis, depends upon whether the proposed space for each prisoner to be so housed is "proper and functional" for such housing. These criteria in turn are based upon the Commission's minimum standards governing conditions of confinement.
Netzel also testified that in the Correctional Facility is free of pests. He agreed that a lack of adequate ventilation in a facility can contribute to the transmission of air-borne "diseases," a problem which, according to Netzel, does not exist at his facility. Netzel also described his facility as providing adequate recreation and religious privileges, shower facilities, medical and library services, self-improvement and job training programs for all prisoners.
By letter to the court dated August 1, 1996, Plaintiffs' Exhibit L, Netzel advised the *1103 court that, with the exception of sixty-four inmates held in the T building at the Correctional Facility, all of the inmates sleep on bunk-beds or cots and none are housed in any area which provides less than fifty-two square feet per inmate. The T building provides 39.8 square feet per inmate in an "open bay" area.
Scott Parker testified that he had been held in the Holding Center during the week preceding the hearing on harassment charges. According to Parker, he was taken from the jail intake holding cell to one of the court hold rooms for detention awaiting court disposition of his charges or bail. Parker, who admitted having used "speed," a controlled substance the prior day nevertheless appeared credible as to the limited testimony he provided. Parker stated that the court hold room in which he was held was "overflowing" and "packed" with other male prisoners. The prisoners were given "mats" on which to sleep which, because of the large number of prisoners in the room, were placed on the floor one and one-half feet apart. The room, as described by Parker, was "filthy" with garbage on the floor of the room. The surfaces of the only toilet for the approximately eighteen persons who were then confined in the room was soiled with human waste. Although Parker's confinement lasted less than a day and one-half, he also testified that when he was given an opportunity to shower, no clean towel was provided forcing him to dry off using his own clothes. Because smoking was permitted in the room, the residual tobacco smoke combined with strong human body odor made the room "smell" and caused him "gagging" and "coughing" and to feel generally "sick." Also, as Parker testified, he was required to eat his meals on his mat which because of the crowded sleeping arrangements was located within about one foot of the toilet. Parker also complained about the temperature in the room as being as "cold as Alaska" and not being able to make a pay phone call because the phone was inoperable.
On cross-examination, Parker stated while in the court hold room he fell asleep but was awakened a couple of times by the noise of someone using the toilet and when another prisoner stepped on him. Parker agreed that he could have moved away from the toilet when someone was using it, that there were no disturbances in the room during his stay there, and that he did not formally complain about the conditions while at the jail.
John J. Dray, who has served as superintendent of the Holding Center since 1989, testified that overcrowding at the jail has been a problem since 1989. Dray explained that the maximum capacity of the jail was 541 in 1986 when the new addition to the jail, originally constructed in the 1930's, was built. The jail had also been expanded in the 1950's to provide additional housing for prisoners. This addition provided traditional individual cells adjacent to corridors or galleries, and are referred to as the "linears." The 1986 addition provides individual cells for prisoners in a cluster or podular arrangement adjacent to common living areas or "day rooms" used by the prisoners for taking their meals seated at tables which may also be used for light recreational activity such as card or board games and watching television on permanently installed television monitors. The cells in the linear section measures approximately eight feet by nine feet or about seventy-two square feet per prisoner including a toilet and sink; in the podular areas, the cells measure roughly thirteen feet by seven feet or approximately ninety-one square feet, including space for a built in toilet and sink.
Dray described the areas of the Holding Center which had been converted to use for housing prisoners as a result of the increased intake of pre-trial detainees and persons convicted of state crimes awaiting removal to state correctional facilities. Dray described the seven rooms located on the ground floor of the Holding Center called court hold rooms or, as Dray stated, "bullpens." These rooms range in size from eight feet by sixteen or eighteen feet to the largest room which measures approximately twenty-four by thirty feet. Each room has attached benches and a toilet. According to Dray, the court hold rooms were not designed for housing prisoners and, in total, now are used to house as many as fifty-six male prisoners. Prisoners are given individual mats to sleep *1104 and eat on during their stay in the court hold rooms while awaiting reassignment to less congested areas of the jail, or to an individual cell in either one of the newer podular units or an older cell in the linear areas. Dray estimated the time prisoners, who are all pretrial detainees, are housed in the court hold rooms to vary from as short a period as twenty-four hours to as long as one week with the typical stay of between seventy-two hours to five days. Although no statistics are compiled as to the number of prisoners and the lengths of time they are held in the court hold rooms or in any other area of the jail, Dray was confident that a period of one month of housing in a court hold room for any prisoner would be rare. Dray estimated that the space between the sleeping mats, which are either twenty-eight inches by fifty-four inches or sixty-two inches in size, given to the prisoners for sleeping on the floors of the court hold rooms, was about twelve inches. He also testified that the smaller court hold rooms are used to house five prisoners each allowing approximately twenty-nine square feet for each prisoner, and the largest one fifteen prisoners for about twenty-six square feet per prisoner.
Dray testified that additional makeshift housing for prisoners was created within the Holding Center by converting several areas, originally designed for other uses, for daily housing of prisoners. Some of these areas are referred to as "day rooms" or "dorms." Other converted areas include the gymnasium, the atrium, the chapel and the resource room. On the first floor of the Holding Center (the Alpha level) in the linear section of the jail, two areas are so used. One area, the atrium, exclusively used to house female prisoners, is a light well or open space between the linear and podular sections of the jail. Another room at the end of the linear cell blocks, is a room originally designated intended to be a small inmate dining and day room. Both areas are irregular in shape but generally resemble a rectangular area truncated on an angle at one end. According to floor plans of the Holding Center prepared by the County Department of Public Works and submitted to the court by both parties as a post-hearing joint exhibit, the atrium, actually more like a corridor, measures approximately fifty-seven by fifteen feet or approximately 891 square feet. Plaintiffs' Exhibit N indicates that, at the date of the hearing the atrium housed ten female prisoners. According to Exhibit J, this area may be used to house as many as fifteen prisoners. Superintendent Dray testified that all prisoners assigned to the atrium sleep on bunk beds. Prisoners are escorted by a guard upon request to a separate toilet room located some distance away as the atrium has no toilet within it. If all fifteen bunk beds were used, the area would provide fifty-nine square feet per prisoner.
The day room dorm on the Alpha level houses fifteen prisoners, ten on bunk beds and five on floor mats. Exhibit J. A small area within the room, approximately eleven by nine feet at the end of the room, has a low partition which provides some privacy while prisoners in the day room use the toilet which is located in that space. The floor space available in the day room for sleeping and eating by the inmates measures about seventeen by thirty-one feet or 532 square feet allowing approximately thirty-five feet per prisoner. The door to this linear day room is secured at all times. Stipulation dated September 9, 1996.
The gymnasium is located on the second floor (Bravo level) of the Holding Center which, as noted, houses as many as fifty prisoners on mats laid on the floor, around half of the room's perimeter an area approximately forty-three by fifty-eight feet. An area originally designated as a special projects room now referred to as a resource room, has been also converted into another dorm is also located in this level. This irregular shaped room provides about 594 square feet, allowing about fifty-nine square feet for each of the ten inmates housed in it, Exhibit N, who sleep on the bunk beds in this room. Fifteen inmates are similarly housed in another dorm or day room on this level, which was originally designated also as an inmate dining and day room. This dorm provides approximately 655 square feet, forty-three square feet for each prisoner, and is located adjacent to the linear gallery of cells on this level. A third area on Bravo level, designed for conducting religious services, referred to *1105 as the chapel, is an open area measuring approximately twenty feet by thirty feet or 600 square feet, allowing forty square feet for each of the fifteen prisoners who are assigned to sleep on floor mats in that area.
While not entirely clear from the Joint Exhibit floor plans, prisoners in the gymnasium, chapel and resource room all share two toilets in separate lavatory rooms, located within one hundred feet of the chapel and resource room, which are accessed by prisoners on an escorted basis. Prisoners in the atrium use a separate toilet room. According to a Joint Stipulation dated September 26, 1996, doors to the resource room, gymnasium, and chapel are locked at all times unless a guard is present to supervise and authorize movement of a prisoner. The door to the atrium is not locked except during general facility lock-down periods and when the guard assigned to this area is not present.
Temporary housing for prisoners similar to the Bravo day room or dorm is provided on the third floor of the Holding Center's linear section, or Charlie level. This room has dimensions, toilet facilities and prisoner occupancy identical to the Bravo day room and also houses fifteen prisoners, ten in bunk beds and five on mats. As a linear section day room, prisoners housed in it are locked in at all times.
On the fifth floor of the Holding Center (Echo level) at issue are two similar areas used for dorm housing. Both rooms are converted exercise areas, each measuring approximately nineteen feet by fifteen and one-half feet or approximately 238 square feet. Each houses as many as fifteen prisoners, ten on bunk beds, five on mats, providing approximately sixteen feet per prisoner. This latter area has access to a toilet facility in an adjacent single prisoner cell which was made available by removing the wall between the two rooms. As day rooms located in the podular section, all are locked down on the same schedule as individual cells 11:30 P.M. 5:30 A.M.; 6:30 7:40 A.M.; 12N 1:00 P.M.; 3:00 P.M. 3:40 P.M., or about eight hours each day.
On the sixth floor of the Holding Center, the Foxtrot and Mezzanine levels located in the new podular section of the jail, one room at one end of the gallery (Foxtrot South Day Room) provides housing for ten inmates (Exhibit N) in approximately 430 square feet or forty-three feet per prisoner. A single toilet area is located at one end of the room behind a low privacy wall. Two other rooms on this level, both originally designated for exercise, one on a lower level and one on an upper level, each provide approximately 238 square feet and are used as a dorm room for ten prisoners or twenty-four square feet, with five assigned to bunk beds and five to floor mats.
On the seventh, or Golf floor level, in the podular section, a converted area like that described in connection with the fifth (Echo) floor provides a housing arrangement similar to the Foxtrot South day room described above.
By comparison, the regulations promulgated by the Commission require a sleeping area of a minimum of sixty square feet per inmate confined in a single cell with one bed and mattress, one functioning toilet and sink. For inmates assigned to multiple occupancy units, limited to a maximum of sixty inmates, the regulations require fifty square feet per inmate for sleeping space, one toilet, shower and sink for each eight inmates and day room space adjacent to the sleeping area. Exhibit D.
The prisoners also are required to eat their meals in these rooms and prisoners in the day rooms adjacent to the linear sections of the jail the Alpha, Bravo and Charlie levels are in a locked down or secure mode at all times. Stipulation dated September 11, 1996.
Although Dray had advised the Commission of the necessity of using these areas for housing prisoners, Dray was not certain whether the Commission had granted formal permission to do so in a variance from Commission standards for housing prisoners. Dray stated that both the court hold and the day-rooms were not suitable for permanent housing and that he would not request such permission from the Commission as to these areas. According to Exhibit L2, a letter dated June 13, 1995 requesting additional *1106 variances for these areas from Superintendent Dray to the Commission, sixty prisoners were then housed in nine day rooms, as described, but because of an increase in the number of "commitments" or prisoner intake obligations imposed on the Holding Center which caused the Holding Center to be "severely overcrowded" permission to house an additional thirty-three prisoners in these day rooms was sought by Dray. In his request, Dray specifically informed the commission that these thirty-three prisoners "will have to sleep on mattresses on the floor as no beds are available." As to the court hold rooms, the June, 1995 request informed the Commission that as many as seventy-three prisoners have been held in these rooms which Dray referred to as "bullpen[s]" explaining to the Commission that "[t]hey [the prisoners] are packed in" in these areas for seventy-two hours to one week. Plaintiff's Exhibit L2 at 2. Although at the hearing Dray was of the belief that the Commission had granted a variance for this increased level of housing in the day rooms, in a post-hearing stipulation dated August 2, 1996, Dray stated that while the Commission was "aware" of the June, 1995 request, it had, to date, not granted the requested variance.
In his testimony, Dray described the general conditions in the court hold rooms as "inhumane," a term which he said he had also applied to the same areas in the Holding Center a year ago. When asked to explain the basis for his opinion, Dray responded that he has "trouble with people eating, sleeping, and defecating in the same area." Dray maintained, however, that both the court hold rooms and the day rooms or dorms nevertheless complied with state and local fire safety requirements, and that the prisoners were given the same shower and recreational program opportunities as those individually housed in the linear and podular cell areas of the jail. Dray stated that unlike the court hold rooms, prisoners assigned to the gymnasium for housing actually "liked" being in that area. He also testified that while no staff provided cleaning service is provided for the court hold rooms or the day rooms, prisoners in these areas are given mops and buckets of cleaning solution with which to clean the floors of the rooms. Dray also stated that in the case of the court hold rooms the prisoners need only request immediate assistance for cleaning equipment in the event that a prisoner gets sick or may vomit on the floor of the room and cleaning equipment will be provided.
Dray further testified that while the current overcrowding at the Holding Center places additional stress on the guards as well as prisoners, that the level of security within the jail has remained adequate. Dray agreed that it is generally true that such overcrowding carries the potential for increased occurrences of altercations and violence among prisoners but maintained that the frequency of such incidents at the Holding Center has remained low. No specifics were provided by the parties regarding the frequency of assaults and fights among prisoners at the Holding Center. Dray further explained that the high costs associated with transporting and housing fees for prisoners which would be incurred if prisoners were sent from the Holding Center to other jail facilities within the state made it too expensive for the county to reduce the prisoner population at the Holding Center by arranging for such temporary housing elsewhere, which even if implemented, would also increase the logistical difficulty of bringing prisoners to scheduled court appearances. Therefore, as Dray testified, it is more cost effective for the county to pay for the additional overtime for the existing guards needed at the Holding Center to provide adequate security for the recent increases in the number of prisoners housed in the Holding Center under the described conditions.
Dray agreed that because of budget limitations on hiring more staff and the higher level of intake to the Holding Center, there could be delays in classifying prisoners immediately following their arrival at the jail based upon their physical and mental conditions and behavioral problems. This delay results in some prisoners who should be placed in more secure housing being housed with other pretrial detainees in the court hold rooms for periods longer than appropriate until these prisoners are properly classified and reassigned to a housing area within the jail where special medical or psychiatric *1107 attention can be given. Dray agreed that because of the effects of overcrowding and budget limitations that it was difficult to provide prisoners clean laundry and blankets as frequently as he or the prisoners would prefer and that similar factors made it likely that prisoners assigned to the court hold rooms may not be able to take showers on schedule.
Joshua Rachuna testified that during his stay as a pre-trial detainee at the jail between July 28, 1996 and August 15, 1996 he was held in one of the court hold rooms for ten days and while there was assaulted by another larger prisoner who demanded Rachuna's food. Rachuna testified as a result of this confrontation that his nose was broken but that no action was taken by the guards to whom the assault was reported. Rachuna described the conditions in the court hold rooms as "unsanitary" and stated that the room "stank" from the odor of "rotting garbage." Rachuna said he became "nauseated" as a result of the bad odors and the congested conditions which required someone to sleep near the only toilet in the room which was used while prisoners were sleeping and eating. Rachuna also testified that the prisoners did attempt to clean the floor but that this was accomplished only every other day. Other than Rachuna's undocumented assault. Plaintiffs offered no other evidence of any major breakdown in security affecting the well being of prisoners as a result of the overcrowded conditions at the Holding Center.
Dr. Joseph Liebergall, a licensed psychologist for the past twenty-six years and Executive Director of Forensic Services at the Erie County Medical Center, testified. Dr. Liebergall provides mental health services for the local courts and mental health examinations and treatment to prisoners at the Holding Center, and has done so in over a thousand cases. Dr. Liebergall described the living conditions for prisoners in the court hold rooms at the jail as "toxic" and "unpleasant" as prisoners are forced to eat and sleep on the floors among strangers with no outside ventilation. According to Dr. Liebergall, other areas of the jail are "cleaner" and "less crowded" and thus "less degrading." Liebergall stated that the difference between the housing conditions for prisoners in the court hold rooms and other areas of the jail is like "night and day" and that the living conditions in the court hold rooms are so poor that prisoners held in the rooms will feign suicidal behavior in order to effect a transfer to one of the mental health observation areas within the jail in order to avoid further confinement in the court hold rooms even though such transfer means that the prisoner may be required to remain nude while undergoing an extended period of observation and evaluation. Dr. Liebergall estimated that, of the 2100 referrals for mental health evaluation within the jail to his unit, as many as 20 per cent of the prisoners appear to him to claim to be suicidal "because of the conditions" in the court hold rooms. Liebergall estimated that over the past year, six to ten prisoners per week sought transfer from the court hold area to the suicide observation area of the jail to get out of these rooms.
Dr. Liebergall also testified that psychological research relating to confinement of prisoners indicates that there is a positive relationship between the ratio of the square footage of allocated living space per prisoner in a jail and the frequency of prisoner misbehavior as greater degrees of physical confinement correlate with heightened levels of prisoner anger and feelings of being victimized for relatively minor offenses. Dr. Liebergall stated that the constant dealing with prisoners in overcrowded conditions and "squalor" causes guards to become "callous" and indifferent to such conditions. According to Dr. Liebergall, the conditions for prisoners in the court hold rooms of the jail were so degrading that if the local SPCA maintained such conditions for the animals in its care, "it would be cited." Dr. Liebergall was not cross-examined by Defendants.
Richard Watroba testified that he spent three days in court hold room # 5 at the Holding Center while awaiting sentence on a violation of state probation charge. Watroba described the living conditions in the court hold room as "rough" and "real bad," and that he "wouldn't want a dog to live there." Watroba stated that, in court hold room # 5, he was forced to live with twelve persons in *1108 an area measuring about ten feet by ten feet.[2] After being moved to court hold # 7, Watroba was forced to live with twenty other persons with one toilet which resulted that the prisoner who was required to sleep closest to the toilet being occasionally urinated upon by another prisoner attempting to use the toilet. Further, according to Watroba, who was a very credible witness, prisoners frequently got sick from drug withdrawals while in the court hold rooms with some vomiting on the floor, and that prisoners were constantly being stepped upon during their attempts to sleep on the floor mats because of the crowded living arrangements. When a prisoner got sick, cleaning supplies were provided to the other prisoners to effect the clean up. Watroba, who also worked in the jail laundry, also stated that there were insufficient clean towels available to prisoners in the court holds because of inadequate supplies and that as a result some prisoners actually felt cleaner not taking showers rather to have to dry off using their soiled clothing from living on the dirty floors of the court hold rooms. Watroba stated that prisoners assigned to the regular cell areas within the jail got "better stuff." Watroba further testified that because of other "stinky" and "sick" prisoners constantly "yelling for drugs" and vomiting on the floor almost daily, other prisoners, like himself, "didn't want to sleep," while housed in the court hold rooms.
Anthony Lee, who had been convicted of armed robbery and was awaiting transfer to a state penal facility, testified that he recently spent two weeks in one of the court hold rooms at the jail. Lee testified that he was also required to sleep on the floor on a mat and that showers were not regularly provided or made available so early in the morning that many prisoners were still asleep making it difficult to wake up and shower. Lee also described the room as so full of "bugs" that prisoners constantly became sick. Lee stated that the odor in the "bull pens" was so bad that "it was like a dead body" and that with the room temperature being so cold he "could not sleep but only tossed and turned." Lee was subsequently transferred to a cell in one of the podular areas which he described as more clean and comfortable." Lee further testified that while in the podular unit a jail guard threatened him with being sent back to the "bull pen" if he failed to comply with an order.
Deputy Sheriff Richard Canazzi, who is one of the guards regularly assigned to the court hold rooms, testified that all prisoners in the court hold rooms are given daily the chance to shower and that, while clean towels are not always available thereby requiring the prisoners to use bed sheets and t-shirts to dry off, no prisoner is forced to use their clothes for drying. Canazzi also stated that the area experienced only a "few" fights among prisoners in a given month and that the garbage bag in the rooms is removed and replaced twice each day. Further, the deputy explained that if the toilets in the rooms should for any reason become plugged, upon this problem being brought to the attention of the guards by the prisoners, the condition is promptly fixed. He also stated that the toilets in the court hold rooms are cleaned daily. Canazzi could not recall receiving any complaints that prisoners were being urinated upon while sleeping in the court hold rooms. Canazzi also estimated that a new prisoner would stay in the court hold rooms for one to five nights as an average, with about ten percent or less staying two-three weeks, and only rarely for one month or longer. Canazzi also explained that as a prisoner goes to court, he will be given a fresh change of clothes and upon returning a fresh bed sheet and a pillow case, however, pillows are not assigned.
Mr. Don Colpoys testified that he has served as recreation director for the Holding Center for ten years and that the prisoners in the court hold rooms like the prisoners throughout the jail are given the opportunity for scheduled recreational activity on a regular basis in either of two areas within the jail, one on the seventh floor and the other on the roof. These areas have exercise equipment and a volley ball court. In cold weather, *1109 prisoners are supplied with jackets although the number of prisoners using the outdoor recreational area during the winter months is much lower than the warmer months. The Holding Center's gymnasium, Colpoys explained, is not presently available for recreation as it is presently used, as noted, for prisoner housing.
DISCUSSION
For a court to issue a preliminary injunction pursuant to Fed.R.Civ.P. 65, the moving party must demonstrate, by a preponderance of the evidence, (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Spear, Leeds & Kellogg v. Central Life Assurance Co., 85 F.3d 21, 25 (2d Cir.1996); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991).
In an application seeking to change prison conditions, "`appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief,' particularly when it comes to requesting a state's administration of its own facilities, including it schools and prisons." Dean v. Coughlin, 804 F.2d 207, 213 (2d Cir.1986) (quoting Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976)). Therefore, out of deference to the state's judgment on how to administer its prisons, an application of the less rigorous standard is inappropriate. Davidson v. Scully, 914 F.Supp. 1011, 1014 (S.D.N.Y.1996). Thus, before the court can consider granting an injunction, the plaintiffs must demonstrate irreparable harm and a likelihood of success on the merits. It is well settled that an allegation of a violation of a constitutional right under the Eight Amendment challenging conditions of confinement in a prison creates a presumption of irreparable harm potentially justifying equitable relief. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.1996); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Pinckney v. Board of Education, 920 F.Supp. 393, 400 (E.D.N.Y. 1996).
In this case, Plaintiffs, on behalf of themselves and the certified class claim violations of both the Eighth Amendment prohibition against cruel and unusual punishments and their right, as unconvicted persons, to be free of any punishment without due process of law, guaranteed by the Fourteenth Amendment, in the form of a conviction and sentence by a court. If, therefore, the court finds that plaintiffs have met their burden for preliminary relief as to any of the challenged conditions at the Erie County Holding Center on the alleged Eighth Amendment claim it will have also found a viable claim under the Fourteenth Amendment due process clause. If the court were to find an insufficient basis for the Eighth Amendment claim it would nevertheless be required to determine whether the conditions at issue constituted a punishment as to unconvicted detainees. Thus, while the ultimate issues in this case are closely related they are not identical.
The Eighth Amendment provides in relevant part that "cruel and unusual punishments [shall not be] inflicted." The Supreme Court has held that the prohibition is to be interpreted in a "flexible and dynamic manner" and that although a particular punishment to be prohibited need not be considered as "physically barbarous" it must nevertheless "involve the unnecessary and wanton infliction of pain" or be "grossly disproportionate" to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 345-46, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations and internal quotation marks omitted). The court considers as unnecessary and wanton those inflictions of pain which are "totally without penological justification." Rhodes, supra, at 346, 101 S.Ct. at 2399 (citing Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976)). No "static test" exists for the determination of whether a challenged punishment is cruel and unusual, rather, the courts "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Rhodes, supra, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Trop v. Dulles, 356 U.S. 86, *1110 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)).
However, the Eighth Amendment does not "mandate comfortable prisons," Rhodes 452 U.S. at 349, 101 S.Ct. at 2400, and "only those deprivations denying `the minimal civilized measure of life's necessities,' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399-2400). Thus, courts "must proceed cautiously in making an Eighth Amendment judgment because, unless reversed by the Court, `[a] decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment'" and thus "`[r]evisions cannot be made in the light of further experience.'" Rhodes, supra, at 351, 101 S.Ct. at 2401 (quoting Gregg v. Georgia, supra, 428 U.S. at 176, 96 S.Ct. at 2926-27).
Further, "[i]n assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries `spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility.'" Rhodes, supra, 452 U.S. at 351, 101 S.Ct. at 2401 (quoting Bell v. Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874). Applying these criteria, the Court in Rhodes found no violation of the Eighth Amendment where the challenged confinement condition was that two prisoners were forced to share, as a result of serious overcrowding, a single cell provided sixty-three square feet of living space in a correctional facility that otherwise provided adequate living conditions.
In Wilson, supra, the Supreme Court held that in addition to showing a serious violation of minimum standards of daily living requirements, an objective standard, an Eighth Amendment claimant must also establish that the prison officials acted with the knowledge and intent, a subjective requirement, that the challenged condition, not imposed as part of the sentence of punishment, inflicted pain on a prisoner so as to constitute a wanton infliction of pain. Wilson, supra, 501 U.S. at 300-301, 111 S.Ct. at 2325-2326. In Wilson, the Court specifically held that in order for responsible officials to be found to have been guilty of wanton infliction of pain through the maintaining of inadequate conditions of confinement, the officials must be shown to have acted with "deliberate indifference" to the conditions claimed to be "inhumane." Wilson, at 303, 111 S.Ct. at 2326-2327.
Further, in scrutinizing the challenged condition, a court is "under an obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners." Rhodes, 452 U.S. at 367, 101 S.Ct. at 2410 (concurring opinion of Brennan, Blackman and Stevens, JJ.) (emphasis in original). "In determining when prison conditions pass beyond legitimate punishment and become cruel and unusual, the `touchstone is the effect upon the imprisoned.'" Id. at 364, 101 S.Ct. at 2408 (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 323 (D.C.N.H.1977)). However, in assessing whether the responsible officials may be found to have acted with the required subjective element of wantonness, the effect upon the prisoner is not controlling, rather, the question "depends upon the constraints facing the official" Wilson, supra, 501 U.S. at 303, 111 S.Ct. at 2326.
The Supreme Court recently held that to find that a prison official acted with deliberate indifference to a challenged condition of confinement under the Eighth Amendment, it must be shown that the official had knowledge of and disregarded "an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, ___, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). While financial constraints may not in themselves immunize an official from an Eighth Amendment violation, Albro v. Onondaga County, 681 F.Supp. 991, 996 (N.D.N.Y.1988) ("economic factors may not be cited as basis for continued imposition of hardships and privations" upon prisoners), fiscal constraints beyond the control of responsible officials may be relevant to the *1111 issue of the intent required for a constitutional violation, if asserted as defense. Wilson, supra, 501 U.S. at 301-302, 111 S.Ct. at 2325-2326.
Under the Due Process Clause of the Fourteenth Amendment, a pre-trial detainee held in state custody has no right to be "free from discomfort" but does enjoy the right to be free from being subjected to conditions of confinement while awaiting trial which "amount to punishment," Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), as "[u]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Id. In assessing whether a challenged nature or condition can be considered as inflicting punishment the Court in Wolfish stated
Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal if it is arbitrary or purposeless a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Wolfish, supra, at 539, 99 S.Ct. at 1874.
In Wolfish, the Court, in rejecting the notion that due process included a "one-man, one-cell principle," also pointed out that
... confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process clause as to whether those conditions amounted to punishment....
Wolfish, supra, at 542, 99 S.Ct. at 1875-76.
However, the Court found no federal due process violation where two pretrial detainees were locked in a cell, between 11 P.M. and 6:30 A.M. and during brief periods for the day for headcounts, having a total space of approximately seventy-five square feet with two bunk beds, an uncovered toilet and a wash basin, and where during the rest of the day they were allowed to move about their rooms and common areas.
In Wolfish, the detainees were nearly all released within a sixty day period. As the Court said, "[w]e simply do not believe that requiring a detainee to share toilet facilities and this admittedly small sleeping place with another person for generally a maximum period of 60 days violates the Constitution." Wolfish at 543, 99 S.Ct. at 1876. In Wolfish, the challenged conditions which included severe overcrowding and inadequate recreation involved a new facility in which prisoners were housed in modular units allowing access to common area day-rooms for substantial periods of the day. Also, in Wolfish, some of the newly arrived prisoners were assigned to sleep on "cots" located in common areas until a cell became available. Wolfish at 526, 99 S.Ct. at 1867. The Court noted that both sentenced and pretrial detainees were subject to the conditions but less than one-half of the detainees were required to be "double-bunked." Wolfish at 525 n. 4, 99 S.Ct. at 1867 n. 4.
In Lareau v. Manson, 651 F.2d 96 (2d Cir.1981), decided two weeks before Rhodes v. Chapman, the Second Circuit noted that Wolfish established a "stringent test for determining when overcrowding will amount to punishment." Lareau, supra, at 103. In upholding an injunction directed towards some of the challenged conditions at the Hartford Connecticut Community Holding Center, the court stated that for a due process violation to be found "[i]t must be shown that the overcrowding subjects a [pre-trial] detainee over an extended period to genuine privations and hardship not reasonably related to a legitimate governmental objective." Lareau, supra, at 103. The court looked to whether the hardships inflicted by the conditions were reasonably related to any legitimate governmental objective including ensuring a detainee's presence for trial, maintaining security and order, and any measure having the tendency to promote efficient management of the detention facility. Lareau, supra, at 104. The court rejected as a justification for the hardships the "state's interest in housing more prisoners *1112 without creating more prison space." Lareau, supra, at 104.
Applying this standard, the court found that the housing of nine prisoners in an all-purpose day room converted into a "dormitory," who were required to sleep on mattresses on the floor of the room which was so confining that the "inmates had to crawl over one another to reach the single toilet provided them" violated the prisoners' due process rights. Lareau at 99-100. With that number of prisoners, the "fishtank," as the room was called, provided less than twenty-three square feet of living space per prisoner. Lareau, supra, at 107. The other day-rooms at the Hartford Holding Center, ranging in size from 225 to 262 square feet, were used to provide eating and light recreational space for prisoners. The prisoners were "double-bunked" (i.e. two prisoners were required to sleep in a cell intended for one) in adjacent cells each providing sixty to sixty-five square feet of space, an area further reduced when a mattress for a second prisoner was placed on the floor of the cell to about thirty-six to forty-one square feet of space for both prisoners. Lareau, supra, at 99. Fifteen to twenty prisoners and sometimes as many as twenty-four prisoners at a time used these day rooms. Lareau, supra, at 99-100. Holding that the length of time a prisoner is exposed to a challenged condition must be considered in deciding whether the condition is unconstitutional, the court in Lareau limited confinement in the overcrowded cells and day rooms to thirty days for convicted persons and fifteen days for pretrial detainees. Lareau, supra, at 105. As to the conditions in the "fish-tank," the court stated that "the use of fishtank [and] floor mattresses ..., however, are too egregious to warrant any such leeway" and that "[t]hey constitute punishment without regard to the number of days for which a prisoner is so confined." Lareau, supra, at 105. Regarding the fishtank, the court also observed that "forcing men to sleep on mattresses on the floors does not provide minimum decent housing under any circumstances for any period" except in the case of a "true emergency such as fire or riot." Lareau, supra, at 107-108. The strength of the Second Circuit's view on this issue is reflected in its sua sponte order of a "blanket prohibition ... against the quartering of inmates on mattresses on cell floors." Lareau, supra, at 109.
The court also found that the prisoners assigned to the double-bunked cells and connected day-rooms were subjected to "extremely overcrowded" conditions, forcing inmates to sit on the floor to eat because of lack of table space. Lareau, supra, at 104. The court further stated that "when a detainee is subjected for a substantial length of time to the combination of double-bunked cells, overcrowded day-rooms and strained prison services at the HCCC, he is being unconstitutionally punished." Lareau, supra, at 105. At the time of the trial, the Hartford facility was being used to house 548 prisoners, 40 percent over the designed capacity of 390. Id., at 99. Three-fourths of the inmates were pretrial detainees and 67 percent were held in the overcrowded conditions for more than sixty days. Id., at 101-102.
Turning to the question of whether the overcrowding and practice of double-bunking at the Hartford facility violated the Eighth Amendment rights of sentenced prisoners, the court in Lareau noted that the amount of square feet of living space available to prisoners at the facility was substantially less than the minima recommended by various professional groups, which ranged from eighty square feet per prisoner for those held continuously in a cell for more than ten hours per day to not less than fifty square feet of any confined sleeping area. Lareau, at 106-107. Relying on the Supreme Court's statement in Wolfish that these recommendations do not "establish the constitutional minima," but "may be instructive in certain cases," 441 U.S. at 543 n. 27, 99 S.Ct. at 1876 n. 27, the court found that the combination of overcrowding in the cells and the related day rooms together with the resultant curtailment of services and inadequate security found to exist at the Hartford facility violated the Eighth Amendment rights of sentenced prisoners when imposed for any period in excess of thirty days. Lareau, supra, at 108-109.
*1113 Applying these principles to the case at hand, the court finds that Plaintiffs have met their burden to show a likelihood of success as to the confinement of sentenced prisoners and pretrial detainees in the court hold rooms, the day rooms, the Bravo level resource room, the atrium and chapel at the Holding Center. In the case of the court hold rooms and day rooms, the court finds that the combined effects of severe crowded daily living conditions, lack of adequate toilet facilities and prisoners living in locked down status constitutes both wanton infliction of pain and unjustified punishment. In the case of these areas and the atrium, chapel and resource room, the use of mats for sleeping on floors by prisoners violates both their Eighth Amendment and due process rights.
As to the court hold rooms, the preponderance of the credible evidence shows that when the largest of these rooms, Court Hold # 7, is used it often houses ten to twenty prisoners with only one toilet, requiring all of the prisoners to use but one toilet. As noted, court hold room # 7 measures twenty-one by eighteen and one-half feet or about 388 square feet. Assuming occupancy by fifteen prisoners, a number supported by the record, the space provides about twenty-six square feet per prisoner, similar to the degree of excessive crowding condemned by the Second Circuit in Lareau. This results in some prisoners being subjected to being stepped on and urinated upon while sleeping, exposure to other prisoners defecating in the only available toilet while prisoners are taking meals seated on the floor, vomiting on the floor and in the toilet by prisoners who become sick and noxious odors caused by a combination of too many people in too little space. The crowded conditions at the Holding Center have admittedly forced the Defendants to curtail the availability of the jail's indoor gymnasium as an exclusively recreational area thus requiring the use of an outdoor area on the roof of the jail. While providing all prisoners with coats to enable them to tolerate the low temperature of the winter months and granting a daily recreational opportunity to all prisoners, the Defendants' own evidence shows, not surprisingly, a much lower level of use of the recreation period during the cold weather months. Moreover, unlike the popular cell areas, persons held in the court hold rooms, who are locked in at all times, have no access to connected common area or day-room activity area for light recreation or taking meals while seated at tables. Thus, the limited opportunity for recreation provided at the Holding Center does not sufficiently mitigate the deprivations of daily living requirements created by forced housing in the court hold and day rooms.
The effect upon the prisoners who are confined in the court hold rooms is objectively severe. Dr. Liebergall described numerous instances where prisoners feigned suicide symptoms in order to be placed in the mental health evaluation unit notwithstanding its attendant requirement that prisoners are held in nude conditions as a special security measure. Moreover, the evidence shows that as a result of the cramped quarters, cold temperatures in the room, bright lights, bad odor and noise all factors attributable to the overcrowded condition prisoners have difficulty sleeping properly in these rooms, a basic daily living requirement.
Also, the Second Circuit has directly held that forcing pretrial detainees to sleep on the floor on mattresses in a jail cell violates the due process clause without regard to the length of such a condition of confinement. The extremely confined living space in the court hold rooms causes prisoners to feel ill from exposure to bad odors and open toilets, so much so that many feign mental illness to obtain transfer for medical observation. Defendants have failed to assign a valid governmental objective that is reasonably related to the requirement that pretrial detainees be exposed to such conditions. Indeed, there is evidence that some guards at the Holding Center perceive housing in the court hold rooms as punishment. Based upon this record, the court finds that Plaintiffs have demonstrated a likelihood of success at trial on the issue of whether the condition in the court hold rooms for pretrial detainees violates their due process rights under the Fourteenth Amendment.
The weight of the credible testimony and other evidence plainly establishes that the *1114 conditions in the court hold rooms deprives prisoners of essential requirements of daily life without any corresponding justification reasonably related to a valid penological or other institutional interest serving the facility's purpose of detaining accused persons for trial. By any measure of comparison, the space provided in the court hold rooms is substantially less than the minima promulgated by the state Commission of Corrections in accordance with its mandate under a state statute. While these minima, like those suggested by various professional organizations, do not define the minimal requirements for federal constitutional purposes, the fact that Defendants seek to comply with them as standards necessary to the protection of health, safety and security of the prisoners in Defendants' Holding Center, is persuasive evidence that the conditions presently under review do not adequately provide for the necessary requirements of daily living for the prisoners housed in the court hold rooms, and therefore constitute a basis to find a violation of the Eighth Amendment as to sentenced prisoners who may be housed in the court hold rooms.
For example, Plaintiffs' Exhibit E is a copy of a directive from the Commission of Corrections to Defendants Higgins and Dray, and the County Executive and County Attorney of Defendant Erie County dated June 30, 1994. The directive states that the Commission had recently conducted site visits to the Holding Center and found the overcrowded conditions to be in violation of Section 7040.3 of its regulations which prohibits confining inmates in a corrections facility in excess of the maximum capacity of the facility which at that time was established at 596 "beds." Further, the Commission found the Holding Center in violation of Section 7040.7 of its regulations prohibiting housing inmates in the court hold "pens" which were unapproved by the Commission. The Commission noted it had brought these violations to the attention of Sheriff Higgins, a Defendant, and other officials in a series of meetings held in 1994 but that the officials, including Defendants Higgins and Dray, had "failed to remedy the deficiencies of their own accord." The Commission directed compliance with its regulations and specifically ordered Defendants to "depopulate" the "court holding pens" and house inmates in those areas in accordance with its regulations on minima housing requirements for inmates.
Approximately nine months after Superintendent Dray had requested a variance from the Commission to increase the number of prisoners allowed to be housed in the day room dormitory areas, a request which was never approved, the Commission wrote to the Erie County Executive in February, 1996, that the Holding Center was housing "well over 800 inmates in a building designed to hold no more than 650" and that the author, Paul Shechtman, the Commission's Director of Criminal Justice, found that conditions at the Holding Center "are not ones consistent with State regulations or acceptable for the safety, security and health of staff or inmates." Exhibit L 3. The Commission again wrote to the County on May 21, 1996 pointed out that as of May 17, 1996, the inmate population at the Holding Center was at 814, "135 above the population cap imposed at the Holding Center by the Commission. At this crowding level, all of the most egregious conditions of confinement which originally prompted the Commission's Directive [limiting the Holding Center's capacity to 679 inmates] pertain." Letter from Edmund B. Wurtz, Commission Chairman to Deputy County Executive James P. Keane. Exhibit M. Although this communication does not specify whether it is intended to apply to all areas of the Holding Center, based on the record, it is reasonable to apply it to at least the court hold areas and day rooms.
The testimony of the prisoners credibly described what Superintendent Dray himself acknowledged to be "inhumane" conditions in the court hold rooms including ten to twenty prisoners locked-in twenty-four hours a day in insufficient space, forced to eat on the floor on mattresses and sharing one exposed toilet for periods of up to one month. The resulting complete absence of privacy, interference with sleep, constant exposure to dirt and residue from sick prisoners, potential for contact with prisoners having infectious diseases, and exposure to noxious odor from human waste and rotting food occurring *1115 in a highly confined space for a substantial period of time all demonstrate that Plaintiffs have a strong likelihood of success on their Eighth Amendment claim with respect to serious deprivation of daily living requirements unrelated to any legitimate objective for pretrial confinement in the court hold areas.
As to the other areas of the jail including the day rooms and the atrium, chapel and resource room, the court finds that, based upon the Second Circuit's decision in Lareau, Plaintiffs have established a likelihood of success in demonstrating that requiring prisoners to sleep on mattresses on the floor of cells in these areas, also constitutes a denial of due process. In the case of prisoners assigned to the day room dorm areas, the confined nature of these spaces, the lack of any modicum of personal privacy, and unsanctioned deviation from the state's own minimum housing standards for incarcerated persons for the additional prisoners added to these areas without the approval of the state Commission, warrants extending the prohibition against sleeping on mattresses imposed in Lareau to these areas. Although these areas like the court hold rooms are not physically speaking traditional jail cells, the absence of access to day activity rooms for prisoners in the linear days rooms, the chapel, and the resource room, who are always locked down, and the requirements that all prisoners housed in these so-called "dorms" use a single toilet, demonstrates that the day rooms are actually worse than housing in the regular cells in the jail. In the popular areas, prisoners assigned to the cells not only sleep on beds and take meals and light recreation at tables, but also have use of a private toilet. For those in the single linear cells there is also some privacy and individual toilet facilities. For those in the day room dorms, the resource room and chapel, neither is made available.
The testimony of prisoner Lee, a convicted felon, clearly establishes that housing in the regular cell area is substantially better than in the court hold rooms. Based upon the court's own observations, the same can fairly be said about the daily living conditions for the prisoners assigned to the days rooms. The same conclusion applies to the use of the chapel and atrium in which, although less confining in available physical living space than the day rooms, nevertheless prisoners are compelled to sleep upon the floor upon mattresses in these areas, a requirement which the Second Circuit found "egregious." Except as to the atrium, prisoners were also locked in at all times in the resource room and chapel without access to any common area or toilet facilities. Although the atrium is not always secured, the lack of access to any common area for prisoners housed there and their relative distance from toilet facilities, makes it sufficiently like a jail cell to warrant application to Lareau's prohibition on the use of floor mats.
While a harsh condition, like forced living on the floor of cells or cell-like areas, may not alone support a violation, it may when considered in combination with another condition. The presence or absence of access to a true day-room for meals and light recreation can ameliorate the demonstrated negative effects upon prisoners of a highly restrictive living area for at least a limited period. Here, there is no provision for such ancillary space for the prisoners confined in these areas, thus, the severely limited living space available and the requirement of sleeping on floor mats becomes, as in the case of the court hold rooms, the basis for a due process and Eighth Amendment violation in the atrium, chapel and resource room areas of the Holding Center as to the continued requirement of forcing prisoners to sleep on the floor on mats.
As to the use of the Holding Center's gymnasium for housing prisoners, while it may be arguable that the bedding of prisoners on the floor in that area also violates the holding in Lareau, the evidence shows that prisoners in this area are confined in an area measuring forty-three by fifty-eight feet providing approximately fifty square feet of space per prisoner. Part of the gymnasium is also used for tables and chairs constituting a large common area. There is reasonable access to two private toilets facilities. Significantly, there was no testimony from any witness suggesting any adverse effect upon the daily living requirements of those prisoners *1116 assigned to this area. For example, prisoners assigned to the gym share the use of two toilets, located in nearby lavatories which do not expose the other prisoners to human waste, odors or noise while sleeping or while taking meals when the toilets are in use. Further, Dr. Liebergall's testimony concerning the extreme efforts by some prisoners to avoid incarceration in the court hold rooms did not extend to housing in the gymnasium. Moreover, these prisoners are given an opportunity for daily outdoor recreation which, if utilized, can somewhat ameliorate the effects of the group living arrangement in the gymnasium. Prisoners there, as elsewhere in the jail, also have access to the prison library, and there was no evidence presented suggesting these or any prisoners assigned to the linear or popular cells do not receive adequate medical care, food or other basic necessities.
Further, while the living conditions in the gymnasium and other areas may create added strain on guards, there was no evidence that security in the Holding Center is generally inadequate or that there is a serious risk of harm to prisoners as a result of the additional burden placed on the guards associated with the general overcrowded conditions which prevail in the Holding Center. Accordingly, based on the present record, the court finds that Plaintiffs have not established a likelihood of success as to their Eighth Amendment or Fourteenth Amendment claims as to the present confinement in the gymnasium, nor does the court find that the direction of the Second Circuit prohibiting use of mattresses for prisoners sleeping on the floors of cells is, on this record, applicable to this area of the Holding Center. Significantly, the minimum living areas granted prisoners at the Erie County Correctional Facility are substantially better than that provided prisoners in these areas of the Holding Center.
In sum, the excessively restrictive living areas provided in the court hold rooms and day rooms deprive prisoners of the necessities of daily living without justification in relationship to any reasonable penological objective or purpose of pretrial confinement. As a result of Defendants' failure to provide more reasonable daily living conditions, these makeshift housing areas are unnecessarily severe and provide the basis for finding that they constitute, as to sentenced prisoners, a cruel and unusual punishment and as to pretrial detainees, an arbitrary form of punishment without due process.
As to the Plaintiffs' claim of cruel and unusual punishment for sentenced prisoners, the evidence shows that, as with pretrial detainees confined in the court hold rooms, Plaintiffs have shown a likelihood of success that confinement in these areas constitutes a deprivation of the minimum requirements of daily living thereby inflicting pain without regard to any advancing valid penological objectives. Accordingly, as discussed, preliminary relief shall also be granted against the confinement of sentenced prisoners on floor mats in these areas. Further, as in Lareau, the use of such a confined area providing prisoners with only one exposed toilet for the use of as many as fifteen persons or more without any access to a day-room for the taking of meals or light recreation satisfies Plaintiffs' burden on their Eighth Amendment claim. In Lareau, the court refused to enjoin housing of a prisoner in area providing thirty square feet of living space in double-bunked cells where the prisoner had access to other areas such as a dayroom, albeit a crowded one, library and, on a limited basis, a gymnasium provided that such housing did not exceed thirty days for sentenced prisoners and fifteen days for pretrial detainees. Plaintiffs have, therefore, shown a likelihood of success as to their Eighth Amendment claims for sentenced prisoners held in the court hold rooms and the day rooms at the Holding Center, areas without access to any common area to ameliorate the effects of living in the severely restrictive housing conditions without adequate toilet facilities in these areas.
In Lareau, the court found that requiring as many as nine prisoners to share one toilet in one small room was prohibited by both the Eighth Amendment and due process considerations, but approved one toilet for two prisoners who were double-bunked in a cell who also had access to an additional toilet located in the adjacent dayroom *1117 shared by up to twelve prisoners. Here, the access by prisoners to a full range of physical recreation such as the use of the gymnasium is limited by the fact that the gymnasium is also used for temporary housing. The evidence shows that all prisoners are given daily opportunities for outdoor physical recreation, but this recreation is, however, effectively limited in the colder months. Therefore, the limited recreational opportunity does not sufficiently ameliorate the adverse effects of prolonged confinement in the court holds and day-rooms areas, nor does it overcome the lack of adequate toilet facilities and the ability of the prisoner to eat his or her meal from a table rather than while seated on a bed or the floor in close proximity to an exposed toilet which may be used at the same time, in the court hold rooms and day rooms.
Although Rhodes v. Chapman held that requiring more prisoners to sleep in a cell beyond its design capacity is not necessarily unconstitutional, the Court also required that other conditions of confinement favorably effect a prisoner's daily living be considered. Here, the day rooms house prisoners in an area which, like the court hold rooms, was not originally intended for housing prisoners. The available living space for prisoners housed in these areas is substantially below the minima established by the Commission. For example, the day room on the Alpha level provides approximately thirty-five feet of space per prisoner; the day room on the Bravo level provides fifty-nine square feet; on the Echo level, the two day rooms are severely cramped, allowing only sixteen square feet per prisoner. In the Echo day rooms, as many as fifteen prisoners are required to share one toilet. Two day rooms on the Foxtrot level provide forty-three square feet per prisoner; two other rooms provide approximately twenty-four square feet per prisoner. As noted, for multiple housing of prisoners, the Commission requires a minimum of fifty square feet of sleeping space, with one toilet, shower and sink for each eight prisoners along with an adjacent common area or day room.
Thus, the record supports the finding that exposure to adverse living conditions created by housing prisoners in the court hold rooms and day rooms creates a risk of serious harm to the health and safety of prisoners confined to these areas based on the deprivation of daily living requirements of an adequate place to sleep, eat and the use of inadequate toilet facilities.
The court also finds that Plaintiffs have sustained their burden on the subjective requirement that Plaintiffs establish that Defendants acted with deliberate indifference to Plaintiffs' rights, prerequisite for preliminary relief as to the confinement of prisoners in the court hold areas and day rooms. As the correspondence between the state Commission of Corrections and Defendants demonstrates, Defendants have been well aware that the conditions now challenged have existed as to the court hold rooms at least since June, 1994 and as to the day rooms since Defendants requested a variance from the Commission's requirements in June, 1995 in order to increase the number of prisoners housed in the day room dormitories. Although the record does not indicate precisely when the use of the court hold rooms for housing pretrial detainees was commenced, Superintendent Dray testified that serious overcrowding problems at the Holding Center have existed at least since 1989. Superintendent Dray also acknowledged that the record does support the finding that prisoners at the Holding Center have been so confined since well before any of the Plaintiffs were incarcerated at the jail. Indeed, in recent correspondence from the Commission to the Defendant County of Erie the Commission threatened to seek "judicial intervention" if the county failed to expeditiously propose a plan to "address the problem [of conditions at the Holding Center]." Exhibit L 3. Such evidence provides a basis for the finding that Defendants therefore had knowledge that the highly restrictive living conditions in violation of state regulations had the capability of inflicting punishment without trial in violation of the Due Process Clause and that their failure to act deprived prisoners of a requirement of daily life without penological justification thereby causing a wanton infliction of pain constituting a cruel and unusual punishment. Significantly, Dray himself had described conditions in the court *1118 hold rooms as "inhumane" a year ago. In a partial explanation for the cause of the overcrowding, Defendants stated that they were required by state law to accept any persons who because of their convicted or parole violation status should have been transferred to a state facility thereby contributing to the overcrowding at the Holding Center. However, like the argument that a defendant was prevented from corrective action because of a lack of available funding, such a rationale for inaction if accepted as a defense would always render a prison or jail official exempt from liability on an Eighth Amendment or due process violation claim. In any event, Defendants do not contend that such a statement of causes or lack of funding negates a finding of the subjective element of Plaintiffs' due process or Eighth Amendment claim. See Wilson v. Seiter, supra, 501 U.S. at 301, 111 S.Ct. at 2325-2326. Rather, the record supports a finding that Plaintiffs have shown a likelihood of success on whether Defendants' acted with deliberate difference to Plaintiffs' rights. The evidence shows Defendants had knowledge of serious risks to the health, safety and daily living requirement of prisoners housed in the court hold rooms and day rooms and failed for over two years to take action to avoid it.
The remaining questions which under, Rhodes and Lareau, must also be answered is, assuming bunk beds or cots are provided to all prisoners in these areas, what, if any, limits on occupancy and the duration of confinement have Plaintiffs demonstrated should be placed on the Defendants housing of prisoners in these areas. Plaintiffs did not present any expert testimony directly relating to serious threats to the health or safety of prisoners in these areas. However, courts are entitled to use "common sense" and "observation" in addressing these issues. Rhodes, 452 U.S. at 367 n. 16, 101 S.Ct. at 2410 n. 16 (concurring opinion). Here, the Defendants have acknowledged that the Commission standards are to be followed and any deviations therefrom in the housing of prisoners under their care and custody must be approved in the form of variances granted by the Commission. The court finds the Commission's minimum standards for housing prisoners in multiple occupancy circumstances, or fifty square feet per prisoner, with a minimum of one toilet and sink for each eight prisoners to be a reasonable requirement to provide minimum requirements of daily living for any prisoner in the Holding Center to be confined either as sentenced prisoners or pretrial detainees. While these standards do not in themselves necessarily a constitutional requirement, they do serve to instruct the court on what minimum housing requirements are needed to protect prisoners against constitutional deprivations in the particular circumstances of the Holding Center. To hold a convicted person or pretrial detainee in an area affording living space about five feet by ten feet sharing access to a common toilet with seven other persons is fairly spartan. In practical effect, it will, however, and in conjunction with the prohibition against use of mats for sleeping in these areas, undoubtedly result in reducing the number of prisoners assigned to the court hold and day rooms.
The question of what period, if any, of time Defendants may house prisoners in either the court hold rooms or day rooms without complying with these requirements is a more difficult question. In Lareau, the court established, under the particular facts, maximum limits of thirty days for sentenced prisoners and fifteen days for pretrial detainees. But those limits were established under circumstances where the prisoner, although confined in sleeping areas with less than fifty square feet, had access to an adjacent day room. Here, the prisoners assigned to these areas do not have access to any common living areas. Indeed, those in linear section day rooms are locked-in at all times and in the other areas for substantial periods of time during the day.
Considering all of the relevant factors, the court finds that for any prisoners to be confined to the court hold rooms or the day rooms, no prisoner whether a pre-trial detainee or sentenced prisoner may be held without being given a suitable bed, either a reasonably comfortable bunk bed or cot, along with suitable bedding and a blanket. Additionally, in the atrium, chapel and resource room, housing prisoners on mats is prohibited.
*1119 Except in the case of true emergencies as described in Lareau, housing of sentenced prisoners in the court hold rooms or day rooms for sleeping and daily living may be permitted without adhering to the minimum living space and related toilet facility requirements stated in this decision for no more than a total of five days, except in the case of a true emergency; for pretrial detainees any confinement to these areas absent compliance with the above requirements which exceeds in total twenty-four hours will constitute a violation of their rights to due process, except in the case of a true emergency.
Although the court has the authority to immediately enjoin any confinement of prisoners at the Holding Center which fail to comply completely with the requirements established in this decision, the Supreme Court has recently encouraged courts to provide prison officials found to maintain unconstitutional confinement conditions with a reasonable opportunity to "rectify" a violation before an injunction is entered. Farmer, supra, 511 U.S. at ___, 114 S.Ct. at 1984.
During the hearing on Plaintiffs' motion, the court has been made aware of Defendants' efforts to resolve the issue of overcrowding at the Holding Center through litigation against the state in the New York Supreme Court thereby manifesting an apparent intention to seek resolution of the problem. Based on this information, and the practical problems which Defendants would necessarily encounter in effecting immediate compliance with this decision, the court finds Defendants should be given a reasonable opportunity to rectify the confinement conditions, determined here to be subject to preliminary relief, before entry of a formal order. Accordingly, entry of a formal preliminary injunction in accordance with the foregoing will be stayed for a period of sixty days to permit Defendants to achieve voluntary compliance with the requirements for confinement of prisoners at the Holding Center as determined by this decision.
CONCLUSION
Plaintiffs' motion is GRANTED in part, and DENIED in part. The parties shall meet with the court on October 28, 1996 at 2:00 p.m. to schedule further proceedings in this matter.
SO ORDERED.
NOTES
[1] As no transcript was ordered by the parties, the facts are based upon the court's notes, recollection of the testimony, exhibits and stipulations.
[2] According to Exhibit L8, court hold # 5 is eleven feet by sixteen feet; court hold # 7 measures twenty-one feet by eighteen and one-half feet. Court hold # 6 is eight feet by fourteen and one-half feet. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3006402/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zurich American Insurance Company, :
:
Petitioner :
:
v. :
: No. 72 C.D. 2015
Bureau of Workers’ Compensation : Submitted: July 24, 2015
Fee Review Hearing Office :
(Lehigh Valley Hospital), :
:
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: October 1, 2015
This matter is a petition for review filed by Zurich American
Insurance Co. (Zurich) appealing a fee review decision of a Bureau of Workers’
Compensation (Bureau) fee review hearing officer (Hearing Officer) ordering
Zurich to pay Lehigh Valley Hospital (Hospital) $1,104,275.37 for trauma care for
an employee of Zurich’s insured. For the reasons that follow, we vacate the
Hearing Officer’s order.
On May 11, 2012, Carl Manfredi (Claimant), an employee of A&C
Flooring & Carpeting, Inc. (Employer), suffered serious and life-threatening
injuries in an automobile accident. (Hearing Officer Decision Findings of Fact
(F.F.) ¶¶5-6; Hospital Ex. 1, Supplemental Reproduced Record (Supp. R.R.) at
79b-81b.) Claimant was transported to Hospital and was treated there from May
11, 2012 to July 20, 2012. (Hearing Officer Decision F.F. ¶¶5, 8; Hospital Ex. 1,
Supp. R.R. at 82b-84b.) The charges for this hospitalization totaled $1,104,275.37.
(Hearing Officer Decision F.F. ¶9; Hospital Ex. 1, Supp. R.R. at 84b.)
On July 16, 2012, Zurich, Employer’s workers’ compensation insurer,
issued a Notice of Temporary Compensation Payable (NTCP) with respect to
Claimant’s accident. (Hospital Ex. 1, Supp. R.R. at 79b-81b.) Zurich did not
withdraw the NTCP within the time limits permitted under the Workers’
Compensation Act (Act)1 and it therefore converted to a Notice of Compensation
Payable (NCP) under Section 406.1(b) of the Act.2 (Insurer Ex. A 12/10/12
Review Petition Hearing Transcript (Review Petition H.T.) at 5, Reproduced
Record (R.R.) at 7a.) Zurich, however, filed a petition to review compensation
benefits on September 28, 2012 seeking to set aside that NCP on the ground that
the accident was not work-related and that it had issued the NTCP and allowed it to
convert to an NCP based on fraudulent misrepresentations by Claimant and
Employer. (5/21/14 Fee Review Hearing Transcript (Fee Review H.T.) at 54,
Supp. R.R. at 54b; Insurer Ex. A Petition to Review Compensation Benefits, R.R.
at 1a-2a; Insurer Ex. A 12/10/12 Review Petition H.T. at 5-10, R.R. at 7a-12a.)
Zurich’s petition to review compensation benefits was pending before a Workers’
Compensation Judge (WCJ) and had not been ruled upon at the time of the hearing
and decision on the instant fee review application.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
Added by the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. § 717.1(6).
2
On July 26, 2012, Hospital submitted its bill in the amount of
$1,104,275.37 to Zurich. (Hospital Ex. 1, Supp. R.R. at 82b-87b; 5/21/14 Fee
Review H.T. at 12-14, Supp. R.R. at 12b-14b.) In August 2012, Zurich filed a
utilization review request with respect to two of the physicians who treated
Claimant during his hospitalization. (5/21/14 Fee Review H.T. at 54-55, Supp.
R.R. at 54b-55b; Hospital Ex. 1, Supp. R.R. at 93b-95b.) Hospital filed an
application for fee review on September 19, 2012, seeking payment of its bill, but
the Bureau ruled that the application was premature because of Zurich’s pending
utilization review request. (Hearing Officer Decision F.F. ¶¶12-13; 5/21/14 Fee
Review H.T. at 14-16, 34, Supp. R.R. at 14b-16b, 34b; Hospital Ex. 1, Supp. R.R.
at 88b-89b, 90b.) On November 13, 2012, the Bureau issued its utilization review
determinations. (5/21/14 Fee Review H.T. at 55, Supp. R.R. at 55b; Hospital Ex.
1, Supp. R.R. at 96b-97b.) On January 3, 2013, Zurich advised Hospital of the
utilization review determinations and told Hospital that it would not pay Hospital’s
bill. (5/21/14 Fee Review H.T. at 57-59, 67, Supp. R.R. at 57b-59b, 67b; Hospital
Ex. 1, Supp. R.R. at 106b-107b.)
On February 4, 2013, Hospital filed the instant fee review petition.
(Hospital Ex. 1, Supp. R.R. at 108b-112b; Hearing Officer Decision Conclusion of
Law ¶10.) The Bureau returned the fee review application as incomplete on
February 6, 2013, because it was printed on two pieces of paper rather than on two
sides of a single sheet of paper, and Hospital refiled the fee review application in
compliance with that requirement on February 7, 2013. (Hospital Ex. 1, Supp.
R.R. at 113b-114b, 115b-118b.) The Bureau issued an administrative decision
denying the fee review application as untimely based on the Hospital’s billing date
of July 26, 2012, without noting the date of the utilization review determinations,
3
Zurich’s January 3, 2013 notification that it would not pay Hospital’s bill, or the
Hospital’s September 21, 2012 fee review application that was dismissed as
premature due to pending utilization review requests. (Insurer Ex. A, R.R. at 18a-
25a.) Hospital timely requested a de novo hearing to contest this decision.
Zurich opposed the fee review application both on timeliness grounds
and on the merits, based on the result of the utilization review determination
concerning one of the physicians. (5/21/14 Fee Review H.T. at 59-60, Supp. R.R.
at 59b-60b.) In addition, Zurich argued that the Hearing Officer lacked jurisdiction
to rule on the fee review application because its petition to review compensation
benefits disputed that Claimant’s accident was work-related, and requested that the
Hearing Officer hold the fee review in abeyance until the petition to review
compensation benefits was litigated to conclusion. (Id. at 7-8, Supp. R.R. at 7b-
8b.) The Hearing Officer denied this motion. (Id. at 8-10, 25-26, Supp. R.R. at
8b-10b, 25b-26b.)
On December 24, 2014, following an evidentiary hearing, the Hearing
Officer issued a determination finding that the fee review application was timely
filed and rejecting Zurich’s argument that the utilization review determination
justified its refusal to pay Hospital’s bill. The Hearing Officer did not rule on the
issue of whether the accident for which Hospital provided treatment was work-
related, but “assume[d] liability … has been adjudicated in petition litigation
before a workers’ compensation judge, and appeals have been exhausted in that
litigation,” and ordered that Zurich pay Hospital $1,104,275.37 plus statutory
interest of 10% per year. (Hearing Officer Decision F.F. ¶4 & Order.) This appeal
4
followed.3 On April 1, 2015, the Court granted Zurich’s application for
supersedeas staying its obligation to pay Hospital pending this Court’s disposition
of this appeal.
On August 5, 2015, the WCJ granted Zurich’s petition to review
compensation benefits. (8/5/15 WCJ Decision.)4 In this decision, the WCJ found
that Claimant’s accident did not occur in the course of his employment and that
Claimant and Employer, which is owned by members of Claimant’s family,
colluded to provide Zurich with false information to cause Zurich to accept the
accident as compensable. (Id. F.F. ¶¶2, 4-9, 16, 20-25, 29-31, Conclusion of Law
(C.L.) ¶2.) The WCJ set aside the NCP, holding that it was “void ab initio” and
that Zurich “is not obligated to pay Claimant’s medical bills that are still
outstanding,” and dismissed a penalty petition that Claimant had filed relating to
Zurich’s failure to pay medical bills. (Id. C.L. ¶¶3-6 and Order.) On August 21,
2015, Claimant filed a timely appeal to the Workers’ Compensation Appeal Board
(Board) in which he has challenged not only the findings that the accident was not
work-related and that Zurich was given false information, but also the ruling that
3
This Court’s review of a fee review decision is limited to considering whether necessary factual
findings are supported by substantial evidence, whether the hearing officer erred as a matter of
law, and whether any constitutional rights were violated. Selective Insurance Company of
America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical
Therapy Institute), 86 A.3d 300, 302 n.4 (Pa. Cmwlth. 2014).
4
By Order dated August 27, 2015, this Court granted Zurich’s application to place the 8/5/15
WCJ Decision before the Court in this appeal. This Court may properly take judicial notice of
both the WCJ’s decision in that related matter and Claimant’s appeal of that decision, submitted
by Hospital in its response to Zurich’s application. Grever v. Unemployment Compensation
Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010); C.J. v. Department of Public Welfare,
960 A.2d 494, 497 n.8 (Pa. Cmwlth. 2008); Lycoming County v. Pennsylvania Labor Relations
Board, 943 A.2d 333, 335 n.8 (Pa. Cmwlth. 2007).
5
the setting aside of the NCP voids liability for Claimant’s past medical bills and
the dismissal of his penalty petition. (Claimant Appeal to Board at 1, 3.)
In this appeal, Zurich argues that the Hearing Officer lacked
jurisdiction to render a fee review decision because its petition to review
compensation benefits disputed that the accident was work-related.5 We agree.
A fee review hearing officer cannot decide whether an injury is
compensable. Crozer Chester Medical Center v. Department of Labor & Industry,
5
Zurich also argues in this appeal that Hospital’s application for fee review was time-barred. In
light of our ruling that the fee review application was premature, the time for filing the
application has not yet begun to run and it therefore cannot be time-barred. In addition, the fee
review application was timely filed in any event. A health care provider’s fee review application
is timely if it is filed within 30 days of notification by the insurer that it disputes the provider’s
bill or within 90 days of the provider’s original bill for the treatment, whichever is later. Section
306(f.1)(5) of the Act, 77 P.S. § 531(5); 34 Pa. Code § 127.252(a); Roman Catholic Diocese of
Allentown v. Bureau of Workers’ Compensation, Fee Review Hearing Office (Lehigh Valley
Health Network), 33 A.3d 691, 697 (Pa. Cmwlth. 2011); Fidelity & Guaranty Insurance Co. v.
Bureau of Workers’ Compensation (Community Medical Center), 13 A.3d 534, 538-40 (Pa.
Cmwlth. 2010).
Hospital’s fee review application was filed within the 30 days following Zurich’s January 3,
2013 notification that it would not pay the bill. 34 Pa. Code § 127.2; 34 Pa. Code § 121.3a; 34
Pa. Code § 121.3(c). The fact that the Bureau returned the fee review application does not
change this. The Bureau’s regulations provide that “[f]or a form returned for the first time, the
Bureau will preserve the filing date if the submitting party files a corrected version of the form
within 14 days of the written notice of the return of the form,” 34 Pa. Code § 121.3(b), and
Hospital refiled a corrected version of its fee review application within three days. Section 121.3
is included in the General Provisions Chapter of the Bureau’s regulations and by its terms applies
to all Bureau filings, including fee review applications.
Moreover, Hospital’s fee review application was also timely under the alternative 90-day
deadline, even if its filing date was not preserved. Hospital filed a fee review application with
respect to Zurich’s failure to pay its bill on September 19, 2012, less than 90 days after it
originally billed Zurich on July 26, 2012. (Hospital Ex. 1, Supp. R.R. at 88b-89b.) The Bureau,
however, ruled that fee review was premature because Zurichs suspended its obligation to pay
Hospital until determinations were issued on its utilization review requests. (Id., Supp. R.R. at
90b.) Where an insurer’s obligation to pay is suspended by a pending utilization request, the 90-
day period from the billing date is tolled and does not begin to run until a determination is issued
finding the treatment reasonable and necessary. 77 P.S. § 531(5); 34 Pa. Code § 127.252(d).
The 90-day period therefore did not begin to run until November 13, 2012, when the utilization
review determinations were issued and did not expire until February 11, 2013, after the Bureau
accepted Hospital’s fee review application.
6
Bureau of Workers’ Compensation, Health Care Services Review Division, 22
A.3d 189, 196 (Pa. 2011); Catholic Health Initiatives v. Heath Family
Chiropractic, 720 A.2d 509, 511 (Pa. Cmwlth. 1998). The fee review process has
a “very narrow scope,” limited to determining the “amount or timeliness” of
payment for medical treatment that the insurer accepts as compensable. Crozer
Chester Medical Center, 22 A.3d at 195-97; Selective Insurance Company of
America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The
Physical Therapy Institute), 86 A.3d 300, 303-04 (Pa. Cmwlth. 2014) (quoting
Crozer Chester Medical Center). Whether an insurer is liable for the claimant’s
injury or for the treatment in question is outside the scope of the fee review process
and must be determined by a WCJ, not by the Bureau or a fee review hearing
officer. Crozer Chester Medical Center, 22 A.3d at 196-98; Selective Insurance
Company of America, 86 A.3d at 303-05. Therefore, where there are factual or
legal issues in dispute concerning the insurer’s liability for medical treatment, the
Bureau and its fee hearing officers lack jurisdiction to consider a fee review
petition for that treatment and any order of the Bureau or a fee hearing officer
directing payment for the treatment must be vacated. 34 Pa. Code § 127.255(1);
Crozer Chester Medical Center, 22 A.3d at 196-98; Selective Insurance Company
of America, 86 A.3d at 305-06.
Here, liability was in dispute. Zurich asserted that the accident for
which Hospital rendered treatment did not occur in the course of Claimant’s
employment and had filed a petition to review compensation benefits seeking to set
aside its NCP on the ground that Claimant and Employer had fraudulently
misrepresented that the accident was work-related. An NCP may be set aside on a
showing of fraud. Crozer Chester Medical Center, 22 A.3d at 195; Waugh v.
7
Workmen’s Compensation Appeal Board (Blue Grass Steel), 737 A.2d 733, 737–
38 (Pa. 1999). The fact that the petition to review compensation benefits had not
been ruled upon at the time of the fee review proceeding does not make the
liability issue uncontested. Crozer Chester Medical Center, 22 A.3d at 196-97 (fee
review proceeding was premature despite fact that NCP was in effect).
Hospital argues that Zurich’s liability for its bill could not be in
dispute because the revocation of an NTCP or setting aside of an NCP does not
relieve the employer of liability for payment for past medical services. Contrary to
Hospital’s contention, however, our case law does not make the setting aside of an
NCP for fraud irrelevant to liability for medical treatment. The decisions of this
Court requiring payment of medical bills for treatment while an NCP or NTCP is
in effect involved changes to the extent of injury and disability from a work-related
accident or challenges to the reasonableness of medical treatment, not disputes as
to whether the accident for which the treatment was rendered was work-related at
all, and there was no finding that issuance of the NCP or NTCP in those cases was
induced by fraudulent representations. See Young v. Workers’ Compensation
Appeal Board (Am-Gard), 816 A.2d 1236, 1245-46 (Pa. Cmwlth. 2003) (ordering
employer to pay past medical bills despite later ruling modifying description of
work-related injury); Gereyes v. Workers’ Compensation Appeal Board (New
Knight, Inc.), 793 A.2d 1017, 1021 (Pa. Cmwlth. 2002) (unilateral reduction in
benefits under NTCP before issuing a notice stopping temporary compensation and
notice of claim denial on the ground that employee was not disabled by the work
injury); Loose v. Workmen’s Compensation Appeal Board (John H. Smith Arco
Station), 601 A.2d 491, 493-94 (Pa. Cmwlth. 1991) (unilateral failure to pay bill
for post-NCP hospitalization incurred before employer obtained termination of
8
benefits on the ground that employee was no longer disabled). In contrast, the rule
that an employer or insurer cannot refuse to pay for past medical treatment while
an NTCP or NCP is in effect does not apply where it is determined that the medical
treatment was not for a work-related accident. Kuemmerle v. Workers’
Compensation Appeal Board (Acme Markets, Inc.), 742 A.2d 229, 231-32 (Pa.
Cmwlth. 1999); Green v. Workmen’s Compensation Appeal Board (Association for
Retarded Citizens), 670 A.2d 1216, 1221-22 (Pa. Cmwlth. 1996); Mulholland v.
Workmen’s Compensation Appeal Board (Bechtel Construction), 669 A.2d 465,
468-69 (Pa. Cmwlth. 1995); Buchanan v. Workmen’s Compensation Appeal Board
(Mifflin County School District), 648 A.2d 99, 102 (Pa. Cmwlth. 1994). Here,
Zurich’s claim that it is not liable for Hospital’s bill is based on the grounds that
Hospital’s medical treatment was not for a work-related accident.
Moreover, although Hospital’s bill was sent to Zurich while the NTCP
was in effect, its treatment of Claimant was begun before any NTCP or NCP was
in effect and the bulk of the over $1 million that it sought in the fee review
proceeding was for treatment rendered before any NTCP or NCP was in effect.
Claimant was admitted to Hospital on May 11, 2012 and treated there from that
date until July 20, 2012. (Hearing Officer Decision F.F. ¶¶5, 8; Hospital Ex. 1,
Supp. R.R. at 82b-84b.) Zurich’s NTCP was not issued until July 16, 2012, over
two months after Hospital began treating Claimant and only four days before
Claimant was discharged from Hospital. (Hospital Ex. 1, Supp. R.R. at 79b-81b.)
Whether an acceptance of a work injury bars an employer or insurer from
contesting liability to a provider for medical treatment is a claim of estoppel.
Crozer Chester Medical Center, 22 A.3d at 197. Estoppel requires proof that the
party asserting estoppel relied on conduct of the party to be estopped.
9
Westinghouse Electric Corp./CBS v. Workers’ Compensation Appeal Board
(Korach), 883 A.2d 579, 586 (Pa. 2005); Peluso v. Kistner, 970 A.2d 530, 533 (Pa.
Cmwlth. 2009). There does not appear to be any basis for a claim that Hospital
relied on Zurich’s NTCP in providing the treatment at issue here.6
There being no clear case law that precludes Zurich from contesting
liability for Hospital’s bill, the effect of the setting aside of Zurich’s NCP is a
liability dispute that must be resolved in the proceeding on the petition to review
compensation benefits, not in this appeal from a fee review decision. Crozer
Chester Medical Center, 22 A.3d at 197 (whether NCP barred insurer from
refusing to pay for medical treatment is a liability dispute that cannot be resolved
in fee review proceeding). Indeed, that issue was addressed and decided by the
WCJ in his ruling on the petition to review compensation benefits and is before the
Board in Claimant’s appeal from the decision. (8/5/15 WCJ Decision C.L. ¶¶5-6
and Order; Claimant Appeal to Board at 3.) Any ruling by this Court on whether
Zurich is liable for Hospital’s bill must be sought in an appeal in that proceeding,
where the correctness of the WCJ’s decision and the record on which the WCJ
made his decision will be before the Court.
6
Contrary to Hospital’s contention, this Court’s unreported decision in Braithwaite v. Workers’
Compensation Appeal Board (D. Powell, Inc.), (Pa. Cmwlth. No. 1301 C.D. 2011, filed Dec. 9,
2011), 2011 WL 10844969, does not hold that liability for past medical bills cannot be contested
on the basis that an NCP or NTCP was obtained by fraud. The penalty ruling in Braithwaite was
not appealed to this Court and the issue of whether an insurer is required to pay medical bills for
a non-work-related accident was not addressed by the Court. Moreover, issuance of the NTCP in
Braithwaite was not induced by fraud; the misleading conduct by the claimant occurred after the
NTCP was issued. Slip op. at 2, 2011 WL 10844969 at *1. In addition, it is not clear from the
opinions in Braithwaite that any of the unpaid medical bills were for treatment rendered when no
NCP or NTCP was in effect.
10
Because liability was in dispute, the Hearing Officer lacked
jurisdiction to order Zurich to pay Hospital’s bill. Accordingly, we vacate the
Hearing Officer’s order in this matter.
____________________________________
JAMES GARDNER COLINS, Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zurich American Insurance Company, :
:
Petitioner :
:
v. :
: No. 72 C.D. 2015
Bureau of Workers’ Compensation :
Fee Review Hearing Office :
(Lehigh Valley Hospital), :
:
Respondent :
ORDER
AND NOW, this 1st day of October, 2015, the December 24, 2014
order of the Bureau of Workers’ Compensation Fee Review Hearing Officer in the
above matter is VACATED for lack of jurisdiction.
____________________________________
JAMES GARDNER COLINS, Senior Judge | 01-03-2023 | 10-01-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539928/ | 06/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0033
No. DA 20-0033
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUSTIN LEE LONGTINE,
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 |
https://www.courtlistener.com/api/rest/v3/opinions/3820949/ | On the 9th day of November, A.D. 1914, a trial was had in this case in the court below, which resulted in a verdict and judgment against the plaintiff in error in the sum of $183.55. A motion for a new trial was filed and overruled, and the case is here on appeal from said judgment.
A motion is filed in this court by the defendant in error, asking that the appeal be dismissed because no brief has been filed by the plaintiff in error. No brief has been filed by the plaintiff in error in compliance with the rules of this court, and no excuse is offered why the same has not been done, and for that reason the motion is sustained, and the appeal is dismissed. In said motion it is also asked that, in the event the appeal is dismissed by this court, judgment be rendered against the sureties on the supersedeas bond filed and approved in the trial court, staying execution on the judgment so entered in said cause. On appeal to this court from said judgment a supersedeas bond was filed and approved in the trial court, the same being executed by the plaintiff in error as principal, and Loyd Cox, M.A. Johnson, W.A. Fitzgerald, L.W. Lee, and J.F. McMillan as sureties, to stay said judgment. By virtue of the provisions of chapter 249 of the Session Laws of 1915, as construed in the case of Long v. Lang, 49 Okla. 342,152 P. 1078, and Butts v. Rothschild Bros. Hat Co., 60 Okla. — , 159 P. 245, the motion for judgment against the said sureties on the supersedeas bond is sustained.
Judgment is therefore entered in this court against Loyd Cox, M.A. Johnson. W.A. Fitzgerald, L.W. Lee, and J.F. McMillan in the sum of $183.55, together with interest thereon at the rate of 6 per cent. per annum from and after the 9th day of November, A.D. 1914, and all costs of this action.
By the Court: It is so ordered. *Page 205 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/997920/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7382
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK GRATE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-93-161-A)
Submitted: February 11, 1999 Decided: February 24, 1999
Before ERVIN, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derrick Grate, Appellant Pro Se. Peter Hugh White, 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:
Derrick Grate seeks to appeal the district court’s order
declining to reconsider the order denying his motion filed under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998). See Fed. R. Civ. P.
60(b). We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See United States v. Grate, No. CR-93-161-A
(E.D. Va. Sept. 8, 1998).* 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
September 4, 1998, the district court’s records show that it was
entered on the docket sheet on September 8, 1998. Pursuant to
Rules 58 and 79(a) of the Federal Rules of Civil Procedure, it is
the date that the order was 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/997881/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7651
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY LEE SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert D. Potter, Senior
District Judge. (CR-94-2, CA-98-132-3-P)
Submitted: February 11, 1999 Decided: February 25, 1999
Before ERVIN, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Anthony Lee Scott, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant filed an untimely notice of appeal. We dismiss for
lack of jurisdiction. The time periods for filing notices of appeal
are governed by Fed. R. App. P. 4. These periods are “mandatory
and jurisdictional.” Browder v. Director, Dep’t of Corrections,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)). Parties to civil actions have sixty days
within which to file in the district court notices of appeal from
judgments or final orders. Fed. R. App. P. 4(a)(1). The only
exceptions to the appeal period are when the district court extends
the time to appeal under Fed. R. App. P. 4(a)(5) or reopens the
appeal period under Fed. R. App. P. 4(a)(6).
The district court entered its order on August 12, 1998;
Appellant’s notice of appeal was filed on October 30, 1998, which
is beyond the sixty-day appeal period. Appellant’s failure to note
a timely appeal or obtain an extension of the appeal period leaves
this court without jurisdiction to consider the merits of Appel-
lant’s appeal. We therefore 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 mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1880935/ | 322 F. Supp. 878 (1971)
Michael A. MEOLA, Plaintiff,
v.
John J. FITZPATRICK et al., Defendants.
Civ. A. No. 70-833-G.
United States District Court, D. Massachusetts.
February 8, 1971.
*879 Michael A. Meola, pro se.
Robert A. Bell, Center for Criminal Justice, Boston, Mass.
Mark Berson, Asst. Atty. Gen., for defendants.
MEMORANDUM OF DECISION
GARRITY, District Judge.
This action is brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enjoin the defendants from interfering with plaintiff's access to the courts. The court has jurisdiction under 28 U. S.C. § 1343(3). The plaintiff, Michael A. Meola, was at the time of the filing of the complaint an inmate of the Massachusetts Correctional Institution located at Walpole, Massachusetts (hereinafter referred to as Walpole). He is presently confined at Bridgewater State Hospital, a facility under the Department *880 of Correction, for observation as to his sanity pursuant to Mass.G.L. c. 123, § 103. The defendants are John J. Fitzpatrick, Commissioner of Corrections of the Commonwealth of Massachusetts, and Robert Moore, Superintendent of Walpole. After an evidentiary hearing at which plaintiff was represented by court-appointed counsel the court makes the following findings of fact and conclusions of law.
Findings of Fact
1. On June 10, 1965 plaintiff was sentenced to Walpole for a term of 5 to 10 years by the Superior Court of Essex County after pleading guilty to the crime of sodomy. Since his confinement at Walpole in 1965, plaintiff has been charged on numerous occasions with violating institution rules and regulations. These violations have resulted in numerous disciplinary proceedings against the plaintiff by the defendants at Walpole. Disciplinary action by the defendants at Walpole against the plaintiff as the result of these violations has taken the form of loss of privileges, transfers to segregation areas, and loss of good time. Plaintiff has been and is presently considered a serious disciplinary problem by the defendants at Walpole.
2. The procedure for transmittal of petitions for habeas corpus, other post-conviction remedies and other legal papers of prisoners to state and federal courts by Walpole authorities is as follows: The prisoner encloses the communication to the court (hereinafter referred to generically as a petition) in an unsealed envelope and personally places it or has it placed into a mailbox at the institution. All petitions by prisoners to state or federal courts are reviewed by the institution mail censor, who usually forwards them to the court forthwith. No record is kept of such petitions. The mail censor may question the propriety of sending a prisoner's petition to the courts, in which event he refers it to the superintendent for review.
3. After reviewing a questioned petition, the superintendent may forward it to the courts "as is", in which event his secretary records the date when forwarded, the inmate's name, the type of petition, and to what court it is sent. Or the superintendent may return the petition to the prisoner. He will do so if the petition contains improper language or if there are multiple petitioners and not all of them have signed the petition. The reason for this latter practice is to insure that the consent of all co-petitioners named as parties to an action has been obtained. These are the only grounds for the superintendent's returning a petition to an inmate.
4. On April 16, 1967 former Superintendent Palmer C. Scafati returned to plaintiff a petition for a writ of mandamus[1] addressed to the Superior Court of Norfolk County. This petition charged John A. Gavin, Commissioner of Corrections, Scafati and Francis Weaver, School Principal, with cruel and unusual punishment and denial of educational materials. It called the respondents "liars and dissembers" [sic], who would "dupe the court, or veil the truth." Four days later a watered-down version of the same petition was posted by the plaintiff and forwarded to the court after review by the Superintendent.
5. In March 1968 an explosive device blew up in the cell of an inmate named Lewis. The superintendent and his deputy believed that plaintiff was responsible and transferred him on March 28 to the "new man's section" of the prison for segregation and kept him there for approximately two months. Plaintiff was not given an opportunity to refute the authorities' suspicions and was never brought before a disciplinary board with respect to the incident. No one was charged with responsibility. Plaintiff's release from segregation and return to the general population at the end of May came on the day after he mailed *881 an application for a writ of mandamus against the authorities for placing him in segregation solely on the basis of suspicion. There is no record that this application was forwarded into court by the Walpole authorities.
6. On January 5, 1969 plaintiff was transferred to block #9, the principal segregation unit at the prison, for creating a major disturbance. Plaintiff remained there until his transfer to the departmental segregation unit, Bridgewater (hereinafter referred to as D.S. U.) on February 17, 1969. On January 24, 1969 plaintiff was reported for breaking up his room in block #9. Action with respect to this incident was not taken by the disciplinary board until March 2, 1969, after petitioner had been transferred to the D.S.U. This action resulted in petitioner's loss of 60 days' good time.[2]
7. During January and February, 1969, while in block #9, plaintiff sent two petitions to the Superior Court for Norfolk County, one claiming a denial of educational materials and the other claiming cruel and unusual treatment. On February 11 plaintiff drafted and posted a petition claiming denial of medical treatment to himself and certain other inmates confined in block #9. On February 16, 1969 Assistant Deputy John Bates, on instructions from the superintendent, informed the plaintiff that his petition would not be forwarded to the court because there were too many names on it and the superintendent did not know if all co-petitioners had consented to be named as parties. Later on the same day plaintiff drafted and posted a habeas corpus petition addressed to the United States District Court at Boston, in which he was the only plaintiff, alleging that the defendants had thrice denied him access to state courts. The next morning, Deputy Butterworth visited the plaintiff in block #9 and had with him the petition plaintiff had addressed to the federal court on the day before. Butterworth warned plaintiff against sending out any more such petitions and tore into pieces the one he had with him.
8. On the afternoon of February 17 plaintiff was transferred to the D.S.U. at Bridgewater. Plaintiff was given no notice of this transfer. Superintendent Scafati had written to the Commissioner of Corrections on February 14 requesting the transfer. The primary reason given for the request was plaintiff's involvement as a "racial agitator" at Walpole. However, no evidence in plaintiff's personnel folder at Walpole supported the allegation that plaintiff was a racial agitator and testimony in this court indicated that he was not. The primary reason for plaintiff's transfer to D.S.U. was his persistent and irritating attempts to bring his grievances against the defendants to the attention of the courts. The plaintiff lost the opportunity to earn approximately 30 days of "good time" as a result of this transfer. He was returned from D.S.U. to Walpole on April 29, 1969.
9. Upon his return to Walpole from D.S.U. plaintiff was confined in block #9 for reasons which did not appear in the evidence. On June 19, 1969 plaintiff posted a habeas corpus petition against the prison authorities addressed to the Superior Court for Norfolk County, claiming cruel and unusual punishment. Shortly thereafter he was visited by Superintendent Scafati, who had the petition with him and who told him that if he persisted in filing court petitions he would be transferred out of state. There is no record that the petition was *882 forwarded into the court by the Walpole authorities.
10. Mass. G.L. c. 123A, § 6, provides in part that a superintendent of a prison may initiate proceedings for commitment of an inmate to the Treatment Center for Sexually Dangerous Persons (hereinafter referred to as the Treatment Center) if it appears to him that an inmate is sexually dangerous.[3] At Walpole, an advisory screening board (hereinafter the Board) is responsible for the classification of inmates first entering the institution. Among the further duties delegated to it by the superintendent is the making of the initial determination as to whether to bring c. 123A proceedings against a particular inmate.[4] The key member of the Board is the director of treatment, who since January 1966 has been Dr. Stanley Kruger.
11. The Board's preliminary step in initiating a c. 123A proceeding is requesting a psychiatrist on the staff of the Division of Legal Medicine of the Department of Mental Health to examine the inmate in question and to determine whether he may be, in the opinion of the psychiatrist, a sexually dangerous person and whether further observation at the Treatment Center is recommended. The policy of the Board is to request routinely such an examination of any inmate committed to Walpole for a crime of a sexual nature. If the psychiatrist recommends further observation, the Board submits its recommendation and the psychiatrist's report to the superintendent. The superintendent, upon receipt of these papers, files a c. 123A motion in the Superior Court requesting that the prisoner be committed by the court to the treatment center for a sixty-day observation period. The policy of the superintendent is to file motions to commit soon after receipt of the recommendation of the Board.
12. On July 9, 1965 the Board at Walpole requested a c. 123A psychiatric examination of the plaintiff. On September 9 Dr. Newman Cohen examined him and on October 7, notified the Walpole authorities that he might be a sexually dangerous person and recommended plaintiff's commitment to the Treatment Center for a sixty-day observation period. However, more than two and one-half years elapsed before Superintendent Scafati filed a c. 123A motion to commit him. On November 12, 1965 plaintiff was transferred to Massachusetts Correctional Institution at Concord (hereinafter referred to as Concord) following *883 a riot at Walpole and was not returned to Walpole until March 15, 1966. Meanwhile in January 1966, Dr. Kruger became director of treatment at Walpole; and his predecessor never brought Dr. Cohen's recommendation regarding plaintiff to his attention.
13. The Board has no procedure for a continuous review of an inmate's c. 123A status. Delays will be called to the Board's attention only at the time an inmate becomes eligible for parole. The policy of the Parole Board is that parole will not be granted to an inmate eligible for parole until after any question as to his being a sexually dangerous person has been resolved in his favor either by a psychiatrist or a court. Thus, it is the practice of the institutional parole officer to keep a record of any c. 123A action pending against an inmate whose psychiatric examination has been requested by the Board and to ask the Board about such an inmate's c. 123A status immediately prior to an upcoming parole hearing. Only upon the receipt of such an inquiry will the Board ordinarily learn of a delay in bringing a c. 123A proceeding to court.
14. On May 23, 1967 plaintiff was denied parole because of his infractions while in prison. On April 9, 1968 the Board requested that new c. 123A proceedings be initiated with respect to the plaintiff. On April 13, 1968 Dr. Daniel M. Weiss examined the plaintiff and by letter dated April 23 recommended his commitment to the Treatment Center for a period of observation not exceeding 60 days. On May 14 Superintendent Scafati filed a motion to commit plaintiff pursuant to c. 123A in the Superior Court of Essex County. On May 21 the Parole Board voted "no action" on plaintiff's case since plaintiff was at that time "in isolation."
15. In June 1968 Superintendent Scafati's motion for commitment under c. 123A was called for a hearing in Superior Court and a public defender was appointed to the plaintiff. Various delays ensued. These delays were at the instance of the defense counsel who was having difficulty securing the services of a defense psychiatrist and was awaiting a pending Supreme Judicial Court determination of the constitutionality of c. 123A. On May 14, 1970 the court dismissed the c. 123A proceedings on the ground that Dr. Weiss's examination of April 1968 could not properly serve as a basis for a commitment more than two years later.
16. On May 15, 1970 the district attorney's office in Essex County informed defendant Superintendent Robert J. Moore of Walpole that plaintiff's case had been dismissed and requested that a new c. 123A proceeding be initiated. So on the same day the Board started the c. 123A procedure all over again and for the third time recommended a psychiatric examination of the plaintiff. On May 28 plaintiff was denied parole because of the pendency of the Board's recommendation. On June 10 Dr. Weiss attempted to interview the plaintiff, who refused to talk to him. By letter dated July 9 Dr. Weiss recommended that plaintiff be committed to the Treatment Center for observation not exceeding 60 days. On July 23 Superintendent Moore filed a motion to commit. On July 29 the Superior Court appointed counsel to represent plaintiff and, after a hearing, committed him to the Treatment Center for 60 days' observation. At the Treatment Center, where plaintiff was confined until September 27, 1970, plaintiff refused to submit to psychiatric examinations and was involved in a serious assault on another inmate.
17. On September 27 plaintiff completed the sixty-day observation period and was returned to Walpole. On September 30 he was committed to Bridgewater State Hospital for 35 days' observation for the purpose of determining his sanity pursuant to Mass.G.L. c. 123, § 103,[5] by the District Court of Western *884 Norfolk. The basis for this commitment was the assault on the other inmate while plaintiff was at the Treatment Center. Plaintiff is presently confined at the State Hospital under a second c. 123, § 103 commitment.
18. While confined for the past five and a half years plaintiff has not been involved in any abnormal sexual activities.
19. Plaintiff's scheduled release date from his Walpole sentence is November 5, 1971. This date takes into account plaintiff's forfeiture of 276 days' good time as punishment for approximately 35 disciplinary violations.[6]
As this case unfolded at the hearings and through the exhibits and other filings of the parties, two issues connected with plaintiff's basic claim of denial of access to courts became manifest and have been briefed and argued by the parties, namely, procedural due process at prison disciplinary hearings and a disciplinary transfer to D.S.U. and punitive use of the c. 123A procedure by defendant prison officials. The court will consider and rule upon these ancillary issues as well as on plaintiff's primary claim.
Prisoners' Access to Courts
A prisoner has a constitutional right of access to the courts under the First Amendment. This principle was recognized in Ex Parte Hull, 1941, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034, recently discussed in Nolan v. Scafati, 1 Cir., 1970, 430 F.2d 548. To the prison inmate, the right of access to the courts is a precious one, for "its administratively unfettered exercise may be of incalculable importance in the protection of rights even more precious." Coleman v. Peyton, 4 Cir., 1966, 362 F.2d 905, 907. As a corollary to these principles, punishment inflicted on a prisoner for the exercise or attempted exercise of his right of access to the courts is patently invalid. As stated in Carothers v. Follette, S.D.N.Y., 1970, 314 F. Supp. 1014, 1022, "imposition of punishment or threat of such punishment based upon a prisoner's statements or complaints to the court about prison conditions chills the prisoner's exercise of his First Amendment right to voice legitimate complaints, and thus would amount to a form of deterrent censorship."
In the instant case the court finds that on at least four occasions, April 16, 1967, late May 1968, February 17, 1969 and June 19, 1969, the defendants at Walpole effectively denied the plaintiff his constitutional right of access to the courts. The court also concludes that defendants, in transferring plaintiff to D.S.U. on February 17, 1969, were motivated chiefly by a desire to punish him for the exercise and attempted exercise of his right of access to the courts and that such a transfer without notice or a hearing was unlawful.
At the hearing former Superintendent Scafati testified as to the general procedure for screening petitions to the court. In brief, Walpole officials review all petitions and forward some of them to the superintendent, who returns petitions to the prisoner if (1) there are co-petitioners and it is not clear that all co-petitioners have consented or (2) the language is "improper."[7] This practice *885 inevitably involves screening the contents of prisoners' communications to the courts.
Censorship of the content of prisoners' petitions to the courts violates the First Amendment. At the hearing, no justification for such a practice was given; and none is apparent except the trivial one of protecting the sensibilities of court officials.[8] There is no valid prison interest in screening and controlling the content of court papers sufficiently compelling so as to limit a prisoner's constitutional right to free and unfettered access to the courts. Cf. Palmigiano v. Travisono, D.R.I., 1970, 317 F. Supp. 776. The fact that prisoners may exaggerate about prison conditions and make false allegations against prison officials cannot justify prison review and censorship of the contents of an inmate's correspondence with the courts. See Carothers v. Follette, S.D.N.Y., 1970, 314 F. Supp. 1014, 1022.
Due Process in Prison
In Nolan v. Scafati, supra, 430 F.2d at 550, the court discussed the question of whether due process safeguards were required for the meting out of prison disciplinary penalties, stating that an issue was "whether the punishment here proposed or inflicted was sufficiently great to require procedural safeguards, and if it was, whether sufficient safeguards were provided. While all the procedural safeguards provided citizens charged with a crime obviously cannot and need not be provided to prison inmates charged with a violation of prison discipline, some assurances of elemental fairness are essential when substantial individual interests are at stake." See also the opinion of the District Judge in the same case, 306 F. Supp. 1, 3-4.
Two recent cases in the Southern District of New York, Sostre v. Rockefeller, S.D.N.Y., 1970, 312 F. Supp. 863, and Carothers v. Follette, supra, have required procedural due process in the imposition of prison punishment. The court in Sostre held that a "sentence" to more than a year in punitive segregation (actually solitary confinement) without minimal procedural safeguards was unlawful. However, the court broadened its ruling to include all charges for which a prisoner may suffer a loss of good time. "A prisoner carries with him to prison his right to procedural due process which applies to charges for which he may receive punitive segregation or any other punishment for which earned good time credit may be revoked or the opportunity to earn good time credit is denied." Sostre v. Rockefeller, 312 F.Supp. at 872. In Carothers v. Follette, supra, the court held that procedural due process was required where the prisoner suffered 4½ months in solitary confinement, loss of the opportunity to earn 46 days good time while in such confinement and loss of 60 days accumulated good time, stating at 1028 of 314 F.Supp.,
"[W]e cannot accept defendants' contention that the essential elements of fundamental procedural fairness advance notice of any serious charge and an opportunity to present evidence before a relatively objective tribunal must be dispensed with entirely because of the need for summary action or because the administrative problems would be too burdensome. Although a prisoner does not possess all of the rights of an ordinary citizen he is still entitled to procedural due process commensurate with the practical problems faced in prison life." *886 In Massachusetts too, where earned good time credit entitles an inmate to an earlier release date,[9] revocation of good time has some of the characteristics of extending a sentence. Similarly, if a prisoner loses the opportunity by virtue of segregation or isolation to earn good time credits, his effective term of imprisonment is thereby increased.
In the instant case, the court is not called upon to delineate the precise boundaries of prison due process with respect to disciplinary action, but to weigh the severity of the punishment imposed by defendants against the extent of procedural due process, i. e., "elemental fairness" afforded to the plaintiff. The punishments were (a) segregation in the "new man's section" of the prison for approximately 60 days in April and May 1968 on suspicion of placing an explosive in another inmate's cell, (b) loss of 60 days earned good time imposed on March 2, 1969 on a charge of destruction of furnishings in his room in block #9 and (c) transfer to D.S.U. for a period of approximately ten weeks in 1969 on a principal allegation of racial agitation. As to punishments (a) and (c), no hearing of any kind was held. As to punishment (b), a hearing in the sense of a report being received from a corrections officer was held at Walpole, but plaintiff was at D. S.U. in Bridgewater at the time and had no notice of nor opportunity to respond to the charge.[10]
The punishments imposed on the plaintiff were substantial, resulting either in loss of earned good time or inability to earn good time for periods of approximately 60 days or longer. Therefore, in the court's opinion, they were "sufficiently great to require procedural safeguards", Nolan v. Scafati, supra, 430 F.2d at 550, at least the elementary ones of notice of the charges against him and an opportunity to reply to them. Having been imposed without such safeguards, they were unlawful and violative of the provisions of the Fourteenth Amendment of the United States Constitution.
Chapter 123A Proceedings
Plaintiff's claim concerning the defendants' use of c. 123A proceedings against him is couched in terms of arbitrary and capricious state action in violation of the due process clause. However, the gravamen of his complaint with respect to this aspect of the case is that defendants at Walpole initiated a series of c. 123A proceedings against him for punitive purposes, i. e., to punish him for his multifarious disciplinary violations and for filing and attempting to file petitions to various courts.
At the outset, we note that Mass.G.L. c. 123A is a comprehensive treatment program for those deemed by the courts to be "sexually dangerous persons." Two procedures are set forth for the day-to-life commitment of such persons to the Treatment Center at Massachusetts Correctional Institution, Bridgewater; one, (§§ 4 and 5) relates to sentencing of defendants convicted of sex-related crimes, and the other (§ 6) to prisoners convicted of any crime who appear to their custodians to be sexually dangerous. In Commonwealth v. Major, 1968, 354 Mass. 666, 241 N.E.2d 822, the § 6 procedure was challenged as an unreasonable classification under the equal protection clause. The court upheld the constitutionality of this section since it deemed the classification of prisoners reasonable in view of the extensive opportunity for observation of an inmate afforded prison officials by virtue of their continuous custody over him. See *887 also Peterson v. Gaughan, D.Mass., 1968, 285 F. Supp. 377, aff'd 1 Cir., 1968, 404 F.2d 1375. On the other hand, evidence of sexual misconduct while imprisoned is not in every case a prerequisite to commitment under § 6. Commonwealth v. Gomes, 355 Mass. 479, 245 N.E.2d 429.
It is well established that proceedings under c. 123A are nonpenal. "There may be no punitive aspects to such confinement." Commonwealth v. Gomes, supra, at 484, 245 N.E.2d at 432. It follows that resort to c. 123A as a punitive instrument, as alleged here, would be punishment both cruel and unusual in violation of the Eighth and Fourteenth Amendments.[11]
Plaintiff's claim that pending c. 123A proceedings were instituted to punish him must be viewed against the background of his having been punished three times previously without due process of law and having been repeatedly denied access to the courts. This claim of plaintiff rests primarily upon two additional circumstances: first, the pending proceedings were instituted toward the end of his term of imprisonment, approximately five years after his incarceration; and second, plaintiff did not engage in any sexual misconduct while in prison.
It seems apparent that if a man is mentally ill upon entering prison, i. e., if he is a sexually dangerous person, and if an effective treatment center with strict security is available, he should be committed to the treatment facility immediately. Prison officials should not wait until their custody over such an inmate is near an end before initiating proceedings aimed at a possible lifetime commitment. The Treatment Center at Bridgewater is by no means simply a place for the segregation and confinement of sexually dangerous persons, but rather one where they receive continuous rehabilitative treatment by a professional staff of psychiatrists, psychologists and social workers. Security there is strict.[12]
Under the special circumstances of this case, therefore, we believe that the burden is properly placed on the defendants to explain why the c. 123A proceedings against plaintiff were not punitive and to justify the delay in bringing the pending proceedings against him in May, 1970.[13]
In the instant case, defendants have sustained this burden of proof. They proved that the policy of the Advisory Screening Board is to request routinely a psychiatric examination of an inmate, like plaintiff, sentenced to Walpole for a crime of a sexual nature, and that such an examination was requested for the plaintiff in July 1965, one month after his arrival at Walpole. Although the examiner recommended the initiation of commitment proceedings, they were not commenced because of the concurrence of two events: plaintiff's disciplinary transfer to Concord and a succession in the position of director of treatment. When the new director, Dr. Kruger, learned by chance in April 1968 that a c. 123A motion to commit the plaintiff for observation had not been filed, he requested another preliminary psychiatric examination and a motion to commit was filed pursuant to § 6 on May 14, 1968. After numerous postponements requested by plaintiff's counsel, these proceedings were dismissed in May 1970 on the grounds of staleness of the April 1968 preliminary psychiatric examination. The present c. 123A proceedings against plaintiff were then initiated at *888 the request of the Essex County District Attorney, since no determination on the merits of petitioner's sexual dangerousness vel non had been made by the superior court. Although the evidence may indicate institutional negligence, it rebuts any presumption that the c. 123A proceedings were used punitively in violation of the Eighth and Fourteenth Amendments.
Order
Therefore it is ordered (1) that a permanent injunction issue enjoining defendants from interfering in any way with plaintiff's communicating with the courts and from reading the contents of plaintiff's communications addressed to courts or to attorneys representing him as counsel of record in any court proceedings; and (2) that defendants credit against plaintiff's term of imprisonment imposed on June 10, 1965 the amount of good time lost, either by revocation of earned good time or inability of the plaintiff to earn good time, as a result of the three punishments herein held to be unlawful, namely, (a) segregation from March 28 to approximately May 28, 1968, (b) loss of 60 days' good time imposed on March 2, 1969 and (c) transfer to D.S.U. from February 17 to April 29, 1969.
NOTES
[1] The court received in evidence copies of all relevant petitions referred to in these findings of fact.
[2] Under Mass.G.L. c. 127, § 129, every prisoner "whose record of conduct shows that he has faithfully observed all the rules of his place of confinement, and has not been subjected to punishment, shall be entitled to have the term of his imprisonment reduced by a deduction" from his sentence. The amount of this deduction is dependent upon the length of the prisoner's sentence. For example, if a prisoner has been sentenced to four years or more, as was the plaintiff, the good-time deduction is twelve and one-half days for each month. If a prisoner violates any rule of his place of confinement, a portion of his accumulated good time is subject to forfeiture.
[3] Chapter 123A, § 6, provides: "If a prisoner under sentence in any jail, house of correction or prison, or in the custody of the department of youth services, appears to the sheriff, keeper, master, superintendent or commissioner of youth services who has him in custody or to the district attorney for the district in which such prisoner was sentenced to be a sexually dangerous person and in need of the care and treatment provided at the center, such officer may notify the commissioner of mental health, who shall thereupon cause such prisoner to be examined by a psychiatrist at the institution wherein he is confined. Such psychiatrist shall report the results of his examination in writing to the sheriff, keeper, master or superintendent, commissioner of youth services, or district attorney, and if such report indicates that such person may be a sexually dangerous person, the sheriff, keeper, master or superintendent, commissioner of youth services, or district attorney shall thereupon transmit the report to the clerk of the courts for the county wherein such prisoner was sentenced, and if such prisoner was sentenced in Suffolk county, to the clerk of the superior court for the transaction of criminal business, together with a motion to commit such person to the center or a suitable branch thereof for examination and diagnosis for a period not exceeding sixty days. The court shall act upon such motion speedily, and if it grants the motion, shall commit such person under the provisions of section four in so far as may be applicable."
[4] In the classification of entering inmates, the Board functions as a committee of from two to eight persons. However, with respect to the processing of prisoners for c. 123A clearance or commitments, the Board is as a practical matter a committee of one, i. e., the director of treatment, now Dr. Kruger.
[5] Chapter 123, § 103, provides: "The superior court upon a report under the preceding section, if it considers the prisoner to be insane or in such mental condition that his commitment to an institution for the insane is necessary for his proper care or observation pending the determination of his insanity, and his removal expedient, shall issue a warrant, directed to the warden or superintendent, authorizing him to cause the prisoner, if a male, to be removed to the Bridgewater state hospital, and, if a female, to be removed to one of the state hospitals for the insane, subject to the provisions of section one hundred and five."
[6] This approximation includes five violations recorded while plaintiff was in Concord in the winter of 1965-1966.
[7] At the hearing Superintendent Scafati testified that this basis of "censorship" was only implemented where obscene language was used. However, an examination of the exhibits, especially a copy of plaintiff's April 16, 1967 petition, indicates that the Walpole authorities considered obscenity to include language which was critical of them.
[8] The superintendent at Walpole sends the following notice along with prisoners' correspondence forwarded to the courts:
"The decision to allow an inmate to write to a Judge or a Public Official is one that causes concern to the Administration of a penal institution. On the one hand the Judge or Public Official may well be disturbed by the attitude of the sender or by the contents of the letter; on the other hand, to deny an inmate this privilege may impede justice. The censorship stamp should not be construed as meaning the contents of the missive are factual."
[9] See Mass.G.L. c. 127, § 129; Gildea v. Com'r., 1957, 336 Mass. 48, 49, 142 N.E.2d 400; Lembersky v. Parole Board, 1955, 332 Mass. 290, 294, 124 N.E.2d 521, and Greenfield v. Scafati, D.Mass., 1967, 277 F. Supp. 644, aff'd 1968, 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250.
[10] In this court plaintiff testified that he had no connection with the explosion in the other inmate's cell and that he was not a racial agitator, and called a corroborating witness on the latter point; and offered a justification for damaging his cell.
[11] See Tingler, Unconstitutional Punishment, 6 Crim.L.Bull. 311, 322-324 (1970), for a discussion of the application of the Eighth Amendment to civil sanctions.
[12] Although not part of the record in this case, the court understands that there has never been an escape from the Treatment Center since the inmates were moved into their present quarters eight years ago.
[13] We need not decide whether the same burden should be placed on the prison administration in every case where long delay coincides with a lack of any indication of sexual misconduct while in prison. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3453060/ | Reversing.
J.E. Miller was chief of police of Jackson, Ky., a town of the fourth class. As such, he executed on January 14, 1924, bond as required by section 3508, Ky. Statutes, with E.C. Hyden, Irvine Turner, G.M. Roberts, and A.R. Graham as his sureties, and he was duly sworn and assumed his duties as chief of police of that city.
Henry Howard, now deceased, was on the 16th day of August, 1924, in the city of Jackson, intoxicated and discharging his pistol, or it is so alleged that he was. Miller, as chief of police, summoned Matt Gabbard to assist him in arresting Howard. While doing so, it is alleged that before they completed the arrest, they maliciously and without right, and not in their necessary or apparently necessary self-defense of themselves, or either of them, shot and wounded Howard, from which shooting and wounding he presently died. The appellant, as the widow of Howard, instituted an action under section 4, Ky. Statutes, to recover of Miller and the sureties on his bond the sum of $10,000 as damages resulting from such shooting and wounding and death of Howard. The decedent left surviving him no children. Miller died and the action was revived against his personal representative.
Turner, Roberts, and Hyden filed demurrers to the petition. The court sustained a demurrer as to each of the defendants who were sureties on the bond of the deceased John E. Miller, as chief of police. A copy of the bond alleged to have been filed with the petition does not appear in the record. No question is raised because of its absence. We shall determine the question as if it were present and a part of the record. The appellant excepted to the judgment on demurrer and elected to stand by his petition as to the defendant E.C. Hyden and prayed an appeal which was accordingly granted. From this judgment as to Hyden this appeal is prosecuted.
The right of appellant to recover from the sureties on the bond as chief of police is fixed by section 3508, Ky. Statutes, which is in this language:
"The chief of police and his deputies, if any be appointed, before entering upon the discharge of their duties shall execute bond, with good surety, in *Page 235
the sum of two thousand five hundred dollars ($2,500.00), to be approved by the board of councilmen, to the Commonwealth of Kentucky for benefit of whom it may concern, that they will faithfully discharge all the duties of the office, and pay over all sums of money that may come into their hands to the person entitled thereto; and for any unlawful arrest, or unnecessary or cruel treating or assault in making an arrest, they and their sureties shall be liable to the person so injured on said bond."
We have construed this statute as giving a right of action against the sureties on a bond executed in pursuance to it in Fidelity Deposit Co. v. Sally, 237 Ky. 136, 35 S.W.2d 7. We held that an action for the wrongful and malicious acts of an officer was maintainable against the sureties by reason of the statute supra. There is no reason for distinction because of the result to the injured person of the wrongful and malicious acts of such officer, and an action is maintainable against the sureties under the statute where death results or does not result to the injured person. The demurrer of the surety Hyden was erroneously sustained to the petition.
Wherefore the judgment is reversed, and cause remanded for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2768439/ | UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant DAVID J. MALLAR, JR.
United States Army, Appellant
ARMY 20130523
Headquarters, Fort Bliss
Timothy P. Hayes, Military Judge (arraignment)
David L. Conn, Military Judge (trial)
Colonel Edward K. Lawson IV, Staff Judge Advocate
For Appellant: Major Vincent T. Shuler, JA; Captain Patrick A. Crocker, JA (on
brief); Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA;
Captain Patrick A. Crocker, JA (on brief on specified issues).
For Appellee: Lieutenant Colonel James L. Varley, JA (on brief); Colonel John P.
Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues,
JA; Captain T. Campbell Warner, JA (on brief on specified issues).
30 April 2014
----------------------------------
MEMORANDUM OPINION
----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy to commit murder, one
specification of conspiracy to violate a lawful general regulation, one specification
of violating a lawful general regulation, and two specifications of communicating a
threat, in violation of Articles 81, 92, and 134 of the Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 892, and 934 [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for ten years, and
MALLAR — ARMY 20130523
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged. 1
This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and also raised two issues personally
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the
issues raised personally by appellant to be without merit.
This court subsequently specified two issues that warranted additional review.
The first issue is whether the two conspiracies to commit murder constitute but one
ongoing conspiracy and therefore constitute an unreasonable multiplication of
charges. The second issue is whether the specification alleging a conspiracy to
violate a lawful general regulation constitutes an unreasonable multiplication of
charges, in that appellant was also charged with the underlying offense (wrongfully
organizing and operating an extremist organization) that already required concerted
criminal activity to commit. We find both specified issues warrant comment and
relief.
BACKGROUND
In October 2011, appellant established, organized and led an extremist
organization in El Paso, Texas. The organization, dubbed the “20th Infantry,” was a
stand-alone militia composed of approximately fourteen members, both military and
civilian. From its inception, the ideological purpose of the 20th Infantry was to
protect the U.S.-Mexico border against drug cartel members and traffickers through
the use of deadly force, as they believed the United States government was not doing
an adequate job of protecting the border. Specifically, the group’s aim was to kill
and rob Mexican drug cartel members and drug traffickers.
Appellant organized the group like a military unit, with appellant as its
“commander.” Appellant organized meetings, training events, fundraising efforts,
and the procurement of weapons and equipment for use by the organization. The
members wore uniforms, carried weapons, and had a rank structure and specific job
designations.
Appellant held numerous meetings and training events and communicated
with group members on a regular basis to propagate his message and discuss ways to
accomplish their stated goals. A training program was set up to allow members to
earn a 20th Infantry patch and rise within the ranks of the group after successfully
completing various training tasks. Specialist (SPC) MM was the group’s “executive
officer” in charge of training and marksmanship.
1
The convening authority waived automatic forfeitures for a period of six months.
2
MALLAR — ARMY 20130523
In July 2012, under appellant’s leadership of the appellant, Specialist MM,
SPC KH, and three other members of the group (including civilian MVM) conducted
an armed surveillance mission at the U.S.-Mexico border for the purpose of
identifying ambush positions to which the group could later return to kill and rob
drug cartel members and drug traffickers by shooting them. While the group was
conducting the reconnaissance, the U.S. Border Patrol detained the group and
questioned them about their activities. After giving a cover story that they were
hunting rabbits, the Border Patrol released the militia members the following day.
Undeterred by their detention, the group continued to meet, train, and discuss
ways to accomplish its goals. In September 2012, appellant conducted another
surveillance mission with MVM at the LaQuinta Inn, in El Paso, Texas. Appellant
believed drug traffickers frequented the hotel and could be ambushed and killed
either at the hotel or in route to their “safe house.” During the hotel visit, appellant
reviewed ingress and egress routes with MVM and discussed the means by which
they could execute an ambush. The next day, appellant discussed ambush methods
at the LaQuinta Inn with MMH, another member of 20th Infantry militia.
Eventually, the group’s plan to kill and rob Mexican drug cartel members and
drug traffickers was uncovered by law enforcement when a friend of appellant
reported his activities to the authorities. The government charged appellant, inter
alia, with two specifications of conspiracy to commit murder of unknown and
unnamed drug traffickers and dealers 2 by means of shooting them with a firearm, and
one specification of conspiracy to violate Army Regulation (AR) 600-20 by
wrongfully organizing and operating an extremist organization. Army Reg. 600-20,
Army Command Policy, para. 4-12 (Extremist Organizations and Activities) (18
Mar. 2008) (RAR, 27 Apr. 2010). The government also charged appellant with the
actual violation of AR 600-20, by organizing and operating an extremist
organization.
LAW AND DISCUSSION
Ongoing Conspiracy
Whether two alleged conspiracy offenses constitute one actual conspiracy is a
question of law we review de novo. See United States v. Finlayson, 58 M.J. 824,
827 (Army Ct. Crim. App. 2003).
2
In the first specification pertaining to the conspiracy to commit premeditated
murder, the charging language refers only to “unnamed drug traffickers.” The
second specification pertaining to this objective refers to “unnamed drug traffickers
and drug dealers.” Any concerns over this minor distinction are alleviated by the
relief provided in our decretal paragraph.
3
MALLAR — ARMY 20130523
Article 81, UCMJ, provides that “[a]ny person subject to this chapter who
conspires with any other person to commit an offense under this chapter shall, if one
or more of the conspirators does an act to effect the object of the conspiracy, be
punished as a court-martial may direct.” The elements of the offense are as follows:
1) That the accused entered into an agreement with one or
more persons to commit an offense under the code; and
2) That, while the agreement continued to exist, and while
the accused remained a party to the agreement, the
accused or at least one of the co-conspirators performed
an overt act for the purpose of bringing about the object of
the conspiracy.
Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 5.b.
“A conspiracy is a partnership in crime.” Pinkerton v. United States, 328 U.S.
640, 644 (1946). The essence of a conspiracy is in the “agreement or confederation
to commit a crime, and that is what is punishable as a conspiracy, if any overt act is
taken in pursuit of it.” United States v. Bayer, 331 U.S. 532, 542 (1947); see also
United States v. Braverman, 317 U.S. 49, 53 (1942).
When the activities of alleged co-conspirators are
interdependent or mutually supportive of a common or
single goal, a single conspiracy will be inferred. Thus, if
the agreement contemplates the bringing to pass of a
continuous result that will not continue without the
continuous cooperation of the conspirators to keep it up,
and there is such continuous cooperation, there is a single
conspiracy rather than a series of distinct conspiracies.
16 Am. Jur. 2d Conspiracy § 11 (2014) (footnotes omitted). “As such, it is ordinarily
the agreement that forms the unit of prosecution for conspiracy, ‘even if it
contemplates the commission of several offenses.’” Finlayson, 58 M.J. at 826
(quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982));
see also United States v. Pereira, 53 M.J. 183, 184-85 (C.A.A.F. 2000) (finding
single conspiracy to commit murder, robbery, and kidnapping).
The Supreme Court has instructed that “the character and effect of a
conspiracy are not to be judged by dismembering it and viewing its separate parts,
but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544
(1913). A variety of factors may be relevant in determining the number of
conspiracies including: the common goal; nature of the scheme in each alleged
4
MALLAR — ARMY 20130523
conspiracy; overlapping participants in various dealings; the overt acts alleged in
each; and the time and location of each conspiracy. See Finlayson, 58 M.J. at 827.
In appellant's case, the record demonstrates that there was but one common
agreement and goal among the members of the 20th Infantry militia—to commit
murder of Mexican drug cartel members, traffickers, and dealers. The members of
the group trained to accomplish this stated goal and sought ways to hide their
criminal enterprise from law enforcement. Each alleged conspiracy to murder
involved conducting surveillance at locations where drug cartel members or
traffickers might be found for the purpose of later killing them at or near El Paso,
Texas. The two occasions of surveillance, first on the U.S.-Mexico border and then
at the LaQuinta Inn in El Paso, were but two different overt acts in furtherance of
the same common aim. The surveillance missions were not compartmentalized and
there was an overlap of participants. MVM was involved in each of the overt acts,
and thus was already part of the existing conspiracy on the date of the second
conspiracy to commit murder offense. Therefore, under the totality of circumstances
in this case, we find but one ongoing conspiracy.
We will therefore consolidate specifications 1 and 2 of Charge II into one
conspiracy to commit murder.
Unreasonable Multiplication of Charges
In Specification 3 of Charge I, appellant was charged with conspiring to fail
to obey a lawful general regulation, by “wrongfully organizing and operating an
extremist organization” which he effected by “conduct[ing] meetings and training
events on divers occasions between on or about 1 October 2011 and on or about 1
February 2012.” In the Specification of Charge III, appellant was charged with
“fail[ing] to obey a lawful general regulation . . . by wrongfully organizing and
operating an extremist organization” between on or about 1 February 2012 and on or
about 22 October 2012.
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts–Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:
1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
5
MALLAR — ARMY 20130523
2) Is each charge and specification aimed at distinctly
separate criminal acts?;
3) Does the number of charges and specifications
misrepresent or exaggerate the appellant's criminality?;
4) Does the number of charges and specifications
[unreasonably] increase the appellant's punitive
exposure?; and
5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338–39 (internal quotation marks omitted).
Application of the Quiroz factors in this case balances in favor of appellant
and requires a finding of unreasonable multiplication of charges for findings.
Appellant stands convicted of both failure to obey a lawful general regulation by
violating Army Regulation 600-20 by organizing and operating an extremist
organization, and conspiracy to violate the very same lawful general regulation by
organizing and operating an extremist organization. Although no objection to this
charging scheme was made at trial, nor was appellant’s punitive exposure increased
as he was facing potential imprisonment for life regardless, the two separate charges
exaggerate his criminality by penalizing the same act two ways. Each charged
offense is aimed at precisely the same criminal activity. The agreement that attends
each individual offense addresses the same threat to society that each law seeks to
avert concerted criminal activity. See Iannelli v. United States, 420 U.S. 770
(1975).
The Supreme Court repeatedly has recognized that a “conspiracy poses
distinct dangers quite apart from those of the [underlying] substantive offense” that
is the object of the conspiracy. The Iannelli Court reemphasized that:
‘This settled principle derives from the reason of things in
dealing with socially reprehensible conduct: collective
criminal agreement partnership in crime-presents a greater
potential threat to the public than individual delicts.
Concerted action both increases the likelihood that the
criminal object will be successfully attained and decreases
the probability that the individuals involved will depart
from their path of criminality. Group association for
criminal purposes often, if not normally, makes possible
the attainment of ends more complex than those which one
criminal could accomplish. Nor is the danger of a
6
MALLAR — ARMY 20130523
conspiratorial group limited to the particular end toward
which it has embarked. Combination in crime makes more
likely the commission of crimes unrelated to the original
purpose for which the group was formed. In sum, the
danger which a conspiracy generates is not confined to the
substantive offense which is the immediate aim of the
enterprise.’
Id. at 778 (quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961). “The
basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself,
independently of any other evil it seeks to accomplish.” Dennis v. United States,
341 U.S. 494, 573 (1951) (Jackson, J., concurring opinion). Similarly, the regulatory
prohibition against extremist organizations addresses the same societal dangers of
concerted criminal activity.
In a sense, the nature of the regulatory violation of organizing and under these
circumstances operating an extremist group requires a conspiracy or, at a minimum,
a meeting of the minds. Therefore, appellant should not be convicted or punished
twice for a single act which posed a singular danger and threat. As such, we find
appellant’s conviction for conspiracy to violate the regulation constituted an
unreasonable multiplication of charges with the separate charge for his violation of
the regulation itself pursuant to Article 92, UCMJ.
CONCLUSION
Specifications 1 and 2 of Charge II are consolidated into a single
specification, numbered Specification 1 of Charge II, to read as follows:
In that SSG David J. Mallar, did, between on or about 1
February 2012 and on or about 22 September 2012, at or
near El Paso, Texas, and at or near McNary, Texas,
conspire with Specialist MM, Specialist KH and MVM to
commit an offense under the Uniform Code of Military
Justice, to wit: murder of unknown and unnamed drug
traffickers and drug dealers by means of shooting them
with a firearm, and in order to effect the object of the
conspiracy, the said SSG Mallar did conduct surveillance
missions on the U.S.-Mexican border at or near El Paso,
Texas on or about 16 July 2012 and at LaQuinta Inn at or
near El Paso, Texas, on or about 22 September 2012.
The finding of guilty of Specification 1 of Charge II, as so amended, is
AFFIRMED. The finding of guilty to Specification 2 of Charge II is set aside and
that specification is DISMISSED. Additionally, the finding of guilty to
7
MALLAR — ARMY 20130523
Specification 3 of Charge II is set aside and that specification DISMISSED. The
remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure that might cause us pause in reassessing appellant’s
sentence. Our consolidation of Specifications 1 and 2 of Charge II and dismissal of
Specifications 2 and 3 of Charge II does not affect appellant’s punishment exposure
which remains a dishonorable discharge, confinement for life without the possibility
of parole, reduction to the grade of E-1, and total forfeitures. Second, appellant was
tried and sentenced by a military judge. Third, we find the nature of the remaining
offenses still captures the gravamen of the original offenses and the aggravating
circumstances surrounding appellant’s conduct remains admissible and relevant to
the remaining offenses. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial.
Reassessing the sentence based on the noted errors, we AFFIRM the approved
sentence. We find this reassessed sentence is not only purged of any error but is
also appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.
Senior Judge COOK and Judge HAIGHT concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
8 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2768477/ | CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 MICHAEL A. NICKS
United States Army, Appellant
ARMY 20110658
Headquarters, III Corps and Fort Hood
Patricia H. Lewis, Military Judge
Lieutenant Colonel Craig E. Merutka, Acting Staff Judge Advocate (pre -trial)
Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)
For Appellant: Major Jacob D. Bashore, JA; Major Kevin F. Sweeney, JA (on brief
and supplemental brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James A. Varley, JA;
Captain Sean Fitzgibbon, JA (on brief).
30 September 2013
---------------------------------
MEMORANDUM OPINION
---------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
MARTIN, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of conspiracy, one specification of
making a false official statement, four specifications of larceny, two specifications
of forgery, one specification of assault consummated by a battery, and one
specification of housebreaking, in violation of Artic les 81, 107, 121, 123, 128, and
130, 10 U.S.C. §§ 881, 907, 921, 923, 928, 930, Uniform Code of Military Justice
(2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for two years, total forfeitures, an d reduction to the grade of
Private (E–1). The convening authority approved thirteen months confinement, and
the remainder of the sentence as adjudged.
NICKS—ARMY 20110658
This case is before us for review under Article 66, UCMJ. We have
considered the record of trial and appellant’s three assignments of error. For the
first two assignments of error, appellant argues that his defense counsel did not
request deferment or waiver of forfeitures, and that his failure to do so constituted
ineffective assistance of counsel. Without reaching the ultimate issue of ineffective
assistance, we find that appellant has not established a colorable showing of possible
prejudice regarding deferment of forfeitures, but has established a colorable showing
of possible prejudice regarding waiver of forfeitures. The third assignment of error
does not merit discussion or relief.
I. FACTS
Appellant was represented at the post -trial portion of his court-martial by
Captain [hereinafter CPT] JT. In a sworn affidavit, appellant alleges that although
his defense counsel never advised him in writing of his right to request that the
convening authority defer and/or waive adjudged and/or automatic forfeitures, the
defense counsel did advise him of the same rights orally. Appellant further asserts
that he asked his defense counsel to seek both deferment and waiver of forfeitures
for him, but that his defense counsel failed to do so. Appellant asserts that his
chances of receiving forfeiture relief from the convening authority were prejudiced
by his trial defense counsel’s inaction and that he received ineffective assistance of
counsel. Appellant’s pleadings and affidavit before this court do not address the
balancing test required for deferment of punishment under Rule for Courts -Martial
[hereinafter R.C.M.] 1101(c)(3).
On 28 June 2013, we ordered the trial defense counsel, CPT JT, to answer
appellant’s allegation of ineffective assistance of counsel. In a sworn affidavit, CPT
JT agreed with appellant that he orally advised his client o f his right to request
forfeiture relief. He asserts that he specifically advised appellant that any sentence
to confinement of six months or more, or a sentence that included a punitive
discharge would result in automatic forfeitures during any period of confi nement.
He then explained that appellant could petition the convening authority to defer any
forfeiture until time of action. He also advised appellant of his right to request
waiver for his dependents. Finally, CPT JT asserts that while appellant discu ssed
his dependents and the ability to request deferment and waiver, appellant and his
counsel made a tactical decision not to make the request based on his changed family
situation.
II. LAW
This court often considers allegations of error related to deferment of
punishment and waiver of forfeitures. For example, in United States v. Fordyce, 69
M.J. 501 (Army Ct. Crim. App. 2010) (en banc), the appellant alleged that he
received ineffective assistance of counsel when his counsel did not submit a requ est
2
NICKS—ARMY 20110658
to the convening authority to defer and waive forfeitures. 69 M.J. at 502. In that
case, both Fordyce and his defense counsel submitted affidavits, but the defense
counsel could not recall advising Fordyce about waiver of forfeitures. Id. at 502.
Without reaching the issue of whether Fordyce’s counsel was deficient, this court
concluded that appellant had suffered prejudicial error in the post -trial processing of
his case. Id. at 504-505. Ultimately, this court concluded that appellant was not
“afforded a full opportunity to present matters to the convening authority prior to his
action on the case.” Id. at 504 (quoting United States v. Hawkins, 34 M.J. 991, 995
(A.C.M.R. 1992)).
Recently, this court examined the format of an appellant’s claim of lost
opportunity to request deferment and waiver of forfeitures. Specifically, we held
that we will not invade the attorney-client privilege without an affidavit or
declaration under penalty of perjury from appellant asserting that the defense
counsel’s performance was deficient. See United States v. Axtell, 72 M.J. 662
(Army Ct. Crim. App. 2013) (en banc). Furthermore, this court held that a Post-
Trial and Appellate Rights form indicating a desire to request deferment and waiver
of forfeitures alone does not set forth a prima facie case of in effective assistance of
counsel. See id. at 663-664 (citing United States v. Moulton, 47 M.J. 227, 229
(C.A.A.F. 1997); United States v. Gunderman, 67 M.J. 683 (Army Ct. Crim. App.
2009)).
We analyze allegations of ineffective assistance of counsel using the standard
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Axtell, 72 M.J.
at 664-665. An appellant must demonstrate that his counsel’s performance was
deficient – that is, the counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Id. An appellant
must also demonstrate prejudice. Id. In post-trial matters involving a convening
authority's decision, there is material prejudice to the substantial rights of an
appellant if there is an error and the appellant makes some colorable showing of
possible prejudice. United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (citing
United States v. Wheelus, 49 M.J. 282, 289 (C.A.A.F. 1998). Both prongs of the
Strickland test are mixed questions of law and fact. Strickland, 466 U.S. at 698.
There is no particular order that must be follow ed in analyzing an ineffective
assistance of counsel claim. United States v. Quick, 59 M.J. 383, 386 (C.A.A.F.
2004) (citing Strickland, 466 U.S. at 697).
III. DISCUSSION
A. Failure to Request Deferment of Forfeitures
First, although appellant asserted ineffective assistance of counsel in an
affidavit alleging his counsel failed to request deferment or waiver of forfeitures, we
conclude that appellant has not established a colorable showing of possible prejudice
3
NICKS—ARMY 20110658
flowing from CPT JT’s failure to request deferment of forfeitures. Accordingly, we
need not address whether CPT JT’s performance was deficient as it relates to any
deferment of forfeitures.
Ordinarily, adjudged forfeitures included in the sentence of a court -martial
take effect on the earlier of the date that is 14 days after the date on which the
sentence is adjudged or the date on which the sentence is approved by the convening
authority. UCMJ art. 57(a). However, upon application of the accused, the
convening authority may defer until action a forfeiture of pay or allowances or
reduction in grade that would otherwise become effective on t he dates described
above. UCMJ art. 57(b).
The President, under his Article 36, UCMJ rule-making authority, has
mandated certain requirements for an accused requesting deferment of punishment.
A request for deferment must be made in writing. R.C.M. 1101(c)(2). Further, the
accused has the “burden of showing that the interests of the accused and the
community in deferral outweigh the community’s interests in imposition of the
punishment on its effective date.” R.C.M. 1101(c)(3). The rule provides multiple
factors that a convening authority may consider:
the probability of the accused’s flight; the probability of the accused’s
commission of other offenses, intimidation of witnesses, or interference
with the administration of justice; the nature of the offenses (including
the effect on the victim) of which the accused was convicted; the
sentence adjudged; the command’s immediate need for the accused; the
effect of deferment on good order and discipline in the command; the
accused’s character, mental condition, family situation, and service
record.
Id.
Our prejudice analysis of appellant’s ineffective assistance of counsel
allegation turns on whether appellant has met two interrelated burdens. Appellant’s
first burden is the requirement provided by R.C.M. 1101(c)(3). Appellant’s second
burden is his requirement to make a colorable showing of possible prejudice on
appeal. These burdens are interrelated because, as a matter of logic, appellant’s
burden of establishing a colorable showing of possible prejudice on appeal is
inextricably tied to whether appellant has m ade a showing that the R.C.M.
1101(c)(3) test balances in favor of deferment.
Appellant’s pleadings do not mention the balancing test required in R.C.M.
1101(c)(3). He has not balanced – as the President requires – those factors.
Appellant’s silence on appeal regarding the R.C.M. 1101(c)(3) burden an d the
4
NICKS—ARMY 20110658
factors articulated therein leads to but one conclusion: appellant has failed to make a
colorable showing of possible prejudice.
In making this conclusion, we expressly note that we do not substitute our
judgment for the convening authority’s judgment. However, the Strickland prejudice
test necessarily examines whether the outcome would have been different; “the
defendant must show that there is a reasonable probability of a different result.”
Strickland, 466 U.S. at 694. Although a “colorable showing of possible prejudice”
is arguably a lesser standard, that standard is still outcome focused. Appellant has
not shown that his interests and the community’s interest in deferral outweigh the
community’s interest in imposition of the punishment on its effective date or at any
point in the post-trial or appellate proceedings. He has therefore not carried his
burden of making a colorable showing of possible prejudice.
B. Failure to Request Waiver of Forfeitures
Unlike deferment, we conclude that appellant has made a colorable showing
of possible prejudice regarding waiver of automatic forfeitures. * The relevant
authorities for waiver of automatic forfeitures are Article 58b, UCMJ and R.C.M.
1101(d). Those authorities lack the allocated burden required for deferment of
punishment. Indeed, a convening authority can even grant waiver of automatic
forfeitures without a request from the accused. Compare UCMJ art. 57a(a) with
UCMJ art. 58b(b). Similar to adjudged forfeitures, automatic forfeitures take effect
14 days after the date on which the sentence is adjudged. UCMJ art. 58b(a)(1).
Congress established waiver of automatic forfeitures to give convening
authorities “discretionary authority ‘to provide transitional compensation for the
dependants of the accused.’” United States v. Emminizer, 56 M.J. 441, 443
(C.A.A.F. 2002) (quoting H.R. Conf. Rep. No. 104-450, at 853 (1996), U.S.C.C.A.N.
1996, pp. 238, 379). Both appellant’s affidavit and the record of trial amply reflect
that appellant had several dependants and providing them support was a concern of
his. Accordingly, we conclude that appellant has met his burden and established a
colorable showing of possible prejudice regarding waiver of forfeitures.
However, on the record before us we cannot resolve the first Strickland prong
as to whether CPT JT was deficient for not requesting waiver of forfeitures.
Appellant’s and CPT JT’s affidavits present materially conflicting versions of the
facts. This court cannot decide “disputed questions of fact pertaining to a post -trial
claim, solely or in part on the basis of conflicting affidavits submitted by the
*
We note that Article 58b, UCMJ, only permits waiver of automatic forfeitures, and
appellant was adjudged total forfeitures. At action, however, the convening
authority could disapprove, mitigate, or suspend appellant’s adjudged forfeitures and
waive the automatic forfeitures for a period of six months.
5
NICKS—ARMY 20110658
parties.” United States v. Ginn, 47 M.J. 236, 243 (C.A.A.F. 1997). Applying the
principles set forth in Ginn, we are unable to decide whether CPT JT’s actions were
deficient without further proceedings. Id. at 248; see United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
Under the facts of this case, we are confident that a DuBay hearing could not
possibly put appellant in a better positi on than the relief we provide, as appellant
requests that this court remand the case for new post -trial processing. Accordingly,
to protect the interests of justice and to promote judicial economy, we will order a
new recommendation and action without ruling on the issue of ineffective assistance
of counsel. United States v. Starks, 36 M.J. 1160, 1164 (A.C.M.R. 1993) (citing
United States v. Spurlin, 33 M.J. 443 (C.M.A. 1991); United States v. Sosebee, 35
M.J. 892 (A.C.M.R. 1992). Our action allows appellant to submit the request for
waiver of forfeitures which he alleges he wanted but was never submitted.
Notwithstanding our finding of no prejudice with regards to deferment, nothing
herein limits appellant from seeking deferment upon remand.
CONCLUSION
The convening authority's initial action, dated 23 March 2012, is set aside.
The record of trial is returned to The Judge Advocate General for a new staff judge
advocate post-trial recommendation (SJAR) and new action by the sa me or a
different convening authority in accordance with Article 60(c)-(e), UCMJ.
Appellant should also receive a newly-appointed defense counsel to assist with the
preparation of his clemency matters.
Senior Judge KERN and Judge ALDYKIEWICZ concur. *
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of
Clerk of Court
Court
* Corrected
6 | 01-03-2023 | 01-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1031606/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6679
BRYANT ELLIOTT DAVIDSON,
Plaintiff - Appellant,
v.
STATE OF MARYLAND; DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL SERVICES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cv-00524-WDQ)
Submitted: February 9, 2010 Decided: February 25, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bryant Elliott Davidson, Appellant Pro Se. Stephanie Judith Lane
Weber, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryant Elliott Davidson appeals the district court’s
order granting summary judgment in favor of the Appellees on
Davidson’s 42 U.S.C. § 1983 (2006) complaint. We have reviewed
the record and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. Davidson v.
Maryland, No. 1:08-cv-00524-WDQ (D. Md. Feb. 26, 2009). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3453064/ | Affirming.
Hiram Cornett died intestate a resident of Perry county, leaving surviving him his widow, Janie Cornett, and an infant son, Lawrence Cornett, who was eleven years old. The intestate owned a tract of about 20 acres of land. Janie Cornett qualified as guardian of her son, and brought this action as guardian, to sell the land, alleging that the sale of the infant's interest in the land was necessary for his maintenance and education. Upon the filing of the petition the clerk made an order appointing a guardian ad litem for the infant. The process was served on the guardian ad litem, proof was taken, and judgment was entered for the sale of the land. The sale was had, and upon exceptions to the sale, it was set aside on the ground that the court had appointed no guardian ad litem for the infant. Thereupon the court appointed a guardian ad litemfor the infant. The guardian ad litem filed report, and judgment was entered for a sale of the land. The sale was had; the purchaser filed exceptions to the sale. The exceptions were overruled, and the purchaser appeals.
It is insisted for the appellant that the infant was not before the court because he was not properly summoned. The summons is in the usual form, commanding *Page 272
the officer to summon Lawrence Cornett and John E. Campbell, his appointed attorney, to answer in ten days, after the service of the summons, the petition filed in the action. The summons was returned as follows: "Executed on John E. Campbell by delivering to him a copy of the within summons." The fact that Campbell was called in the summons, his appointed attorney, was immaterial, for Campbell was not a necessary party to the summons. It was not necessary to deliver to Campbell two copies of the summons. Webb v. Webb, 190 Ky. 574; Johnson v. Carroll, 190 Ky. 689. The process was executed on the infant when a copy of the summons was delivered to his guardian ad litem. The infant was, therefore, properly before the court. The order appointing the guardian ad litem was regular; the proper affidavit had been filed.
It is also insisted that the depositions were not properly taken, because they were taken upon notice to John E. Campbell as guardian ad litem under the appointment of the clerk made when the petition was filed; but in such cases, when the clerk appoints a guardian ad litem upon the filing of the petition the person so appointed is guardian ad litem for the infant, not alone for the purpose of service of process, but throughout the action. This question was expressly decided in Luck v. Shabell, 186 Ky., 339, in these words:
"Appellees also contend the orders of sale and confirmation were void as to at least one of the infants who was over 14 years of age at the time the orders were entered, but having been brought before the court while under 14 years of age in the manner prescribed by the Code, he was in court and the authority of his guardian ad litem to defend for him in that action continued until the termination of the cause, unless removed by the court or terminated by the arrival of the infant at the age of majority."
On the whole record no error is perceived affecting the regularity of the proceedings. The purchaser obtained a good title; the exceptions to the sale were properly overruled.
Judgment affirmed. *Page 273 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3453065/ | Affirming.
J.E. Bybee brought this action in the McCreary circuit court against E. Slaven, J.J. New, and the *Page 300
Stearns Coal Lumber Company to recover the sum of $3851 the value of certain trees which he alleged the defendants cut down and carried away from his land.
E. Slaven sold to J.J. New the standing trees on a tract of land claimed by him, and after the trees were cut and moved from the land New sold the timber to the Stearns Coal. Lumber Company. The real controversy is between Bybee and Slaven, and involves the location of the line forming the boundary between their lands. Three similar actions against the same defendants by other adjoining land owners were brought, and by agreement the four actions were consolidated and transferred to the equity docket. Upon final submission judgments against E. Slaven and J.J. New were rendered in favor of the plaintiffs in two of the consolidated actions, but in the Bybee case judgment was rendered in favor of the defendants and Bybee's petition was dismissed. He has appealed.
J.E. Bybee claims to be the owner of a 50-acre tract of land patented by Aaron Barrier in 1846 and a tract containing 87 1/2 acres patented by James H. Gregory in 1889. E. Slaven owns a 200-acre tract of land patented by Richard Barrier in 1856. The patent was based on a survey made March 24, 1855. Slaven owns other land adjoining this tract. The Richard Barrier patent admittedly overlaps the older Aaron Barrier patent to the extent of 8 or 9 acres. The appellee E. Slaven concedes that he, being the owner of the junior patent, is without title to the overlap, but it is his contention that none of the timber was cut on the overlap and that none was cut beyond the south line of the Aaron Barrier patent. The James H. Gregory patent overlaps the Richard Barrier patent to some extent. It is appellant's contention that the timber was cut from the Aaron Barrier patent and from the Gregory patent outside of any overlap. The proof as to the location of the lines of the respective patents is voluminous and conflicting. The land now owned by appellant was owned by his grandfather, James G. Corder, who died in 1907. Appellant acquired title by inheritance from his mother, Louella Corder Bybee, daughter of Jaynes G. Corder, and by purchase from her other heirs. On November 29, 1890, James H. Gregory, for a consideration of $150, conveyed the 87 1/2 acre tract patented by him in 1889 to James G. Corder. On February 9, 1903, James G. Corder signed and acknowledged *Page 301
an instrument of writing in which he acknowledged receipt of $101.04 in full settlement of his claim against Gregory for breach of warranty. The writing recited that after the deed of November 29, 1890, was executed it was discovered that a portion of the land described in the deed was covered by an older survey made in the name of Richard Barrier March 24, 1855, and that to the extent of the interference Gregory was without title. This overlap contained 32 1/3 acres, and was described by metes and bounds. The proof tends to show that none of the timber in question was out from the Gregory patent outside of this overlap.
Before the death of James G. Corder the appellee cut and sold timber from the land in dispute without objection from Corder. One or more of Corder's sons assisted in the work. George Vaughn, a son of Louella Corder Bybee and a half-brother of appellant, testified that during his mother's lifetime appellee cut timber on the land now in dispute and claimed by appellant. A dispute over the boundary line arose and litigation between Mrs. Bybee and appellee resulted. In that litigation Mrs. Bybee lost.
The testimony of the surveyors and other witnesses is conflicting in some respects, but the great weight of the evidence supports the chancellor's finding that appellant is not the owner of the land from which the trees were cut.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2985231/ | Order filed December 19, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00701-CV
____________
NATHANIEL JONES, Appellant
V.
HOUSTON POLICE DEPARTMENT, ET AL, AppelleeS
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2013-25627
ORDER
Appellant’s brief was due December 9, 2014. No brief or motion for
extension of time has been filed.
Unless appellant submits a brief to the clerk of this court on or before
January 21, 2014, the court will dismiss the appeal for want of prosecution. See
Tex. R. App. P. 42.3(b).
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3005971/ | filed, calendared, and clients are advised; the mentor will ensure that
Cantor maintains a proper accounting system and will review the trust
account; the mentor shall submit a quarterly report to Bar Counsel about
Cantor's progress and any issues that may have developed; (3) the
mentoring agreement shall be executed by Cantor and the mentor within
30 days of the hearing; (4) Cantor shall submit a quarterly report to Bar
Counsel providing an update as to his place of employment, area(s) of
practice, his caseload, and any issues that may have developed; and (4)
Cantor shall pay the actual costs of the disciplinary proceedings, excluding
Bar Counsel and staff salaries, within one year.
Based on our review of the record, we conclude that the guilty
plea agreement should be approved. See SCR 113(1). We hereby impose a
stayed sixth-month-and-one-day suspension. Additionally, Cantor must
comply with all of the conditions in the plea agreement, as outlined above.
Cantor and the State Bar shall comply with the applicable provisions of
SCR 121.1 and SCR 115 and 116, if necessary.
It is so ORDERED.'
, CA.
Hardesty
erry
Gibbons Pickering
'The Honorable Nancy M. Saitta, Justice, voluntarily recused
herself from participation in the decision of this matter.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
DOUGLAS, J., dissenting:
I would reject the plea.
Douglas
cc: Chair, Southern Nevada Disciplinary Board
Sean Claggett & Associates, Inc.
Bar Counsel, State Bar of Nevada
Kimberly Farmer, Executive Director, State Bar of Nevada
Perry Thompson, Admissions Office, United States Supreme Court
SUPREME COURT
OF
NEVADA
3
(0) 1947A en | 01-03-2023 | 09-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539929/ | 06/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0034
No. DA 20-0034
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JUSTIN LEE LONGTINE,
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 |
https://www.courtlistener.com/api/rest/v3/opinions/128988/ | 538 U.S. 985
WELLSv.CHU.
No. 02-9084.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. Reported below: 49 Fed. Appx. 116. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/128999/ | 538 U.S. 986
CHILDRESSv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, ET AL.
No. 02-9118.
Supreme Court of United States.
April 21, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 51 Fed. Appx. 930. | 01-03-2023 | 04-28-2010 |
Subsets and Splits