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https://www.courtlistener.com/api/rest/v3/opinions/4199752/ | Natasha Burak v. Mark Burak, et al., No. 97, September Term 2016. Opinion by Hotten,
J.
FAMILY LAW — CUSTODY — THIRD-PARTIES — PERMISSIVE
INTERVENTION
The Court of Appeals held that there is no procedural bar prohibiting a third-party from
seeking to intervene in a custody dispute between parents because Maryland Rule 2-214
allows any person to intervene in an action “when the person’s claim or defense has a
question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The
Court also held that because a third-party may only obtain custody of a child over the
child’s biological parents if the third-party can demonstrate that the parents are either unfit
or that exceptional circumstances detrimental to the child exist, the third-party seeking to
intervene in an existing custody action must make a prima facie showing in his or her
pleading that the parents are either unfit or that exceptional circumstances exist. See
McDermott v. Dougherty, 385 Md. 320, 325, 869 A.2d 751, 754 (2005). The Court
concluded that the Grandparents’ Motion for Permissive Intervention contained sufficient
factual allegations to make a prima facie showing that the parents may be unfit or that
exceptional circumstances existed.
FAMILY LAW — CUSTODY — THIRD-PARTIES — UNFITNESS
The Court of Appeals held that in determining whether a parent is unfit – sufficient to
overcome the presumption favoring parental custody in a third-party custody dispute – the
court may consider whether: (1) the parent has neglected the child by manifesting such
indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge
his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that
the parent inflicted or allowed another person to inflict physical or mental injury on the
child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent
suffers from an emotional or mental illness that has a detrimental impact on the parent’s
ability to care and provide for the child; (5) the parent otherwise demonstrates a
renunciation of his or her duties to care and provide for the child; and (6) the parent has
engaged in behavior or conduct that is detrimental to the child’s welfare. The Court
concluded that although several of the hearing judge’s findings that served as the basis for
his conclusion that the mother was unfit implicated several of the factors above, because
the majority of the hearing judge’s findings were not supported by the record and were,
therefore, erroneous, the hearing judge abused his discretion in finding that Petitioner was
an unfit parent.
FAMILY LAW — CUSTODY — THIRD-PARTIES — EXTRAORDINARY
CIRCUMSTANCES
The Court of Appeals held that the hearing judge erred in applying the seven factors
contained in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977), to the facts in
the case at bar and, therefore, abused his discretion in concluding that exceptional
circumstances existed in this case. The hearing judge erred in finding that the “length of
time” the child at issue “had been away from” Petitioner was “whenever they were going
to do some tripping[]” because the first Hoffman factor only applies to circumstances where
a biological parent has given constructive custody of the child to a third-party over a long
period of time, and ample evidence was presented reflecting that Petitioner has been an
active custodian of the child since he was born. The hearing judge also erred in concluding
that the Grandparents had assumed care of the child “from the time of [his] birth[]” because
he ignored the facts presented at the hearing reflecting that Petitioner has been continuously
and actively involved in the child’s care since birth. The hearing judge also erred in
drawing the conclusion that if the child remained in Petitioner’s custody, he would likely
fail or continue to be in crisis because ample testimony presented indicated that Petitioner
was responsive to the child’s behavioral difficulties and was actively working with both
the child’s school and her own therapist to identify ways to help the child address his
behavioral issues. The hearing judge also erred in failing to make substantive factual
findings in regard to the third Hoffman factor, which considers the “possible emotional
effect on the child of a change of custody,” and the fourth Hoffman factor, which considers
the “period of time which elapsed before the parent sought to reclaim the child.” Hoffman,
280 Md. at 191, 372 A.2d at 593. The Court concluded that the hearing judge did not err
in finding that the child’s relationship with his Grandparents was “extremely strong” and
the Court deferred to the hearing judge’s determination that there was no “intensity or
genuineness” on Petitioner’s part in having custody of the child. See id. See McDermott,
385 Md. at 325, 869 A.2d at 754.
Circuit Court for Montgomery County
Case No. 112675-FL
Argued: June 2, 2017 IN THE COURT OF APPEALS
OF MARYLAND
No. 97
September Term, 2016
__________________________________
NATASHA BURAK
v.
MARK BURAK, et al.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Opinion by Hotten, J.
Watts, J., joins in judgment only.
McDonald and Getty, JJ., dissent.
__________________________________
Filed: August 29, 2017
We consider whether the Circuit Court for Montgomery County properly
determined that the grandparents of a minor child may intervene in a custody action
between the child’s parents and whether the circuit court abused its discretion in concluding
that the mother was unfit and that “exceptional circumstances” existed in the present case
that were sufficient to overcome the constitutional presumption favoring parental custody
and authorized the circuit court to grant custody of the child to the grandparents pursuant
to the “best interests of the child” standard. We also consider whether the circuit court
properly excluded consideration of the grandparents’ financial resources in determining
child support and whether the amount of child support the circuit court required the mother
to contribute to the care of the child was correct.
Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October
2006, and had a child (“the Child”) two years later. From early 2009 until December 2012,
Petitioner, Father, and another woman – “M” – engaged in a polyamorous relationship and
illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and,
prior to engaging in any illicit activity, the parties would take the Child to his paternal
grandparents’ house. In 2011, Petitioner and Father purchased a marital home in Silver
Spring, Maryland with funds provided by Father’s parents – Gary and Martha Burak (“the
Grandparents”) – and sometime in 2012, M moved into the basement of the marital home.
Beginning in September 2012 and continuing until February 2013, the triad attended
couples counseling because Petitioner no longer wanted to engage in sexual relations with
M and she wanted M to leave the marital home. In December 2012, the sexual relationship
between Petitioner and M ended, but the two continued to have a non-sexual relationship
4
that included cooking together and sleeping in the same bed. On May 31, 2013, in response
to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received
a Temporary Restraining Order (“TRO”) against Father. Father subsequently moved out
of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.
On January 14, 2014, a pendente lite consent agreement reached by the parties was
placed on the record. Pursuant to the agreement, Petitioner was granted custody of the
Child, but Father retained visitation rights that were supervised by the Grandparents.
Petitioner and Father were also required to undergo random drug testing and attend therapy.
Father passed all his subsequent drug tests, but Petitioner tested positive for marijuana in
one of the tests. On February 20, 2014, the custody evaluator issued her report,
recommending that Petitioner have custody of the Child with Father continuing to have a
right to visitation, both parties receive a mental health evaluation and a psychiatric
consultation, and both parties continue to be subject to random drug testing.
On April 24, 2014, the Grandparents filed a motion to intervene in the custody action
between Petitioner and Father, seeking custody of the Child in light of Petitioner and
Father’s illicit drug use and given the strong role that the Grandparents had played in the
Child’s life since birth. Petitioner opposed the Grandparents’ intervention, but the circuit
court granted the Grandparents’ motion on July 25, 2014. Also in July 2014, Petitioner’s
biological daughter’s adoptive family (“the Ks”)1 moved into the marital home with
Petitioner and the Child.
1
The Ks include Mr. and Mrs. K, and their biological daughter.
5
Beginning in May 2014, at the end of the Child’s kindergarten year, the Child began
exhibiting negative and disruptive behavior in class. The bad behavior continued through
the summer and into the start of the Child’s first grade year, when the Child began to leave
class without permission and exhibit bouts of anger. On September 4, 2014, the Child
kicked the assistant school principal and threatened to blow up the school. The school
contacted Petitioner and provided a referral to the Montgomery County Crisis Center
(“Crisis Center”).2 The Child was subsequently allowed to return to school after the
referral was completed.
Between September 15 and September 19, 2014, the circuit court held a custody
hearing. Thereafter, the circuit court issued an oral ruling, finding that both Petitioner and
Father were unfit parents and that exceptional circumstances existed in the case. The
circuit court granted physical and legal custody of the Child to the Grandparents at the
conclusion of the hearing but held that both Petitioner and Father retained the right to
visitation. The circuit court entered an interim order on September 30, 2014 that granted
physical and legal custody of the Child to the Grandparents, required Father to pay $500
per month in child support to the Grandparents, and stated a hearing would be set before a
magistrate to determine Petitioner’s child support obligations. On December 31, 2014, the
Grandparents filed a Motion for Child Support in the circuit court. After a hearing on
2
The Crisis Center provides crisis services, including emergency psychiatric
evaluations, full crisis assessments, and treatment referrals for both psychiatric and
situational crises. See DEP’T OF HEALTH & HUMAN SERVICES: 24 HOUR CRISIS CENTER,
https://perma.cc/ENB5-8LHY (last visited: June 23, 2017).
6
March 11, 2015, the magistrate issued recommendations for child support on March 24,
2015. The magistrate determined that the Grandparents were under “no legal obligation”
to contribute to the Child’s care, and recommended that Petitioner pay $1,467 per month
due to her adjusted gross income and due to the “extraordinary medical expenses” that were
claimed by the Grandparents for the Child’s psychiatric and psychotherapeutic care. The
magistrate also recommended that the interim order be modified to require Father pay $629
per month based on his unemployment benefits and due to the Child’s “extraordinary
medical expenses.” On May 26, 2015 the circuit court entered an order granting the
Grandparents’ motion and ordered Petitioner to pay $1,467 per month in child support and
increased Father’s child support obligation from $500 to $629 per month. On June 19,
2015, Petitioner appealed the circuit court’s decisions to the Court of Special Appeals. On
December 7, 2016, in a reported opinion, the Court of Special Appeals held, inter alia, that
(1) the circuit court did not abuse its discretion when it granted the Grandparents’ motion
for permissive intervention, (2) the circuit court did not abuse its discretion when it found
that exceptional circumstances existed in the case at bar; and (3) the circuit court did not
abuse its discretion in awarding child support to the Grandparents. See Burak v. Burak, et
al., 231 Md. App. 242, 150 A.3d 360 (2016).
For the reasons that follow, we shall reverse the judgment of the Court of Special
Appeals.
7
BACKGROUND
I. Custody Proceedings
On October 7, 2006, Petitioner and Father were married. In June, 2008, their child
was born. In late 2008, Petitioner and Father met M in their apartment complex and the
triad developed a friendship. Soon thereafter, Petitioner and Father approached M about
beginning a consensual polyamorous relationship with them, which commenced in early
2009.3 At the time the polyamorous relationship began, Petitioner informed M that she
had dissociative identity disorder (“DID”)4 and that, in addition to her main identity, she
also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.5
Additionally, evidence was presented at the custody hearing indicating that, as part of the
3
Petitioner acknowledged that she consented to the polyamorous relationship “to
please [Father] at the time.” The record also indicates that Petitioner continued to have a
sexual relationship with an ex-boyfriend, and that they had sexual relations between three
and six times while Petitioner was also engaged in the polyamorous relationship with
Father and M.
4
The Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), states that
the defining feature of DID is the presence of two or more distinct personality states or an
experience of possession. Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS (5th Edition 2013), https://perma.cc/TW2S-7SEW (last accessed:
July 5, 2017). The DSM-V also explains that the overtness or covertness of these
personality states will vary as a function of “psychological motivation, current level of
stress, culture, internal conflicts and dynamics, and emotional resilience. Sustained periods
of identity disruption may occur when psychosocial pressures are severe and/or
prolonged.” Id. (citation omitted).
5
Father testified that a week before their marriage, Petitioner told him that she had
been diagnosed with DID and disclosed the identities of her three alter egos to him. Father
also stated that he had observed Petitioner shift into the different alter egos, with the most
frequent being Morgan whom he referred to as the “protector.” The record reflects that
Petitioner was never officially diagnosed by a therapist with DID.
8
parties’ couples counseling, see infra, Petitioner wrote a needs and wants list that reflected
her needs and wants as well as those of Morgan and Adrianna. Petitioner testified that
Father coerced her into writing Adrianna’s portion of the needs and wants list by
“threaten[ing] to take certain things away,” including taking away the Child. Petitioner
also acknowledged the existence of emails she wrote in 2006 that referred to Morgan, but
stated that Morgan was a nickname she had been given to her by friends and that she used
the name in role-playing activities she engaged in with Father. Another email from 2008
that was allegedly sent by Petitioner referenced that Adrianna was “refusing to come out[.]”
Petitioner testified she was not sure whether she wrote that email or not because Father had
access to the email account that the email was sent from.
In addition to the sexual relationship between Petitioner, Father, and M, the three
also used drugs together, including marijuana, mushrooms, ecstasy, and cocaine. The three
would schedule their drug use and sexual relations to allow Petitioner and Father to
coordinate childcare with the Grandparents in the Grandparents’ home. Testimony from
the custody hearing reflects that the drug use and sexual relations would occur “[a]nywhere
from every other weekend to once a month, to sometimes it would be a few months.”
Petitioner also maintained a calendar that recorded the parties’ drug and sexual relations
schedules.
On June 11, 2011, with money given to them by the Grandparents, Petitioner and
Father purchased a five-bedroom home in Silver Spring, Maryland. Sometime in 2012, M
moved into the marital home with Petitioner, Father, and the Child, and the parties
9
continued their polyamorous relationship and drug use.6 The parties also divided up
chores, M would sometimes babysit the Child while Petitioner and Father worked, and the
parties rotated cooking dinner.
Father testified that the marital relationship became increasingly strained during
2012, and that he and Petitioner engaged in verbal altercations that involved name-calling
and screaming. Between September 2012 and February 2013,7 Petitioner, Father, and M
participated in couple’s counseling.8 In December 2012, the sexual relationship between
Petitioner and M ended,9 but the couple continued having a relationship that included
6
The record indicates that the parties would sometimes smoke marijuana and
engage in sexual relations while the Child was in the house, but the Child was either asleep
or he was in his bedroom at the time of the activity. Father and M both testified that the
Child never walked in on the parties while they were using drugs or engaging in sexual
relations. M acknowledged, however, that the Child would sometimes come into the
bedroom when all three were in bed together and that the Child was aware of the parties’
various sleeping arrangements. M also acknowledged that the parties’ kept sex toys in the
marital home, but stated that they were confined to her bedroom in the basement, and that
the Child was supposed to knock before entering her bedroom.
7
The parties’ stopped attending couple’s therapy in February 2013 when Father
stormed out of a session after Petitioner stated that she wanted M to move out of the marital
home and the therapist agreed.
8
Father only agreed to attend counseling if M could also participate.
9
At the custody hearing, an email was produced that was sent from Petitioner to M
with Father cc’ed on February 4, 2013. The email detailed the dates and times for
introductory courses on bondage discipline submission and masochism (“BDSM”). Father
testified that he, Petitioner, and M attended one of the introductory classes together and
that he and M attended a separate class with just the two of them. M stated that Petitioner
and Father were not really involved in BDSM activities together.
10
cooking, cuddling, watching television together, and sleeping in the same bed. Father and
M continued to have a sexual relationship.
On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end
of the day, an argument ensued between Petitioner and Father that involved screaming, and
devolved into violent actions taken by both parties.10 On May 30, 2013, the parties got into
another fight, and Petitioner testified that:
10
Petitioner and Father disagree regarding the circumstances of the fight.
Petitioner testified at the custody hearing that:
[Father] and I ended up getting into a fight at the end of the day that started
off in the car. I had gotten out of the car to stretch, because I had gone to the
car instead of being in the park. Since they had gone off and, and I mean they
by [Father] and [M], had gone off and done their own thing.
I had gotten out of the car to stretch, and [Father] basically got physical and
violent. Pushing me down to the ground to the point where I had to bite him
to get out. I had gone to close the car door without realizing that his hand was
in there. So it was a huge, big fight. [Father] had smacked me and then I had
gone to the other side of the car and gotten in. To where he was verbally
screaming at me. Telling me that, you know, he should have hit me harder
and that he didn’t really want me alive, to be honest.
* * *
Father testified at the hearing that:
We had a really good day up until the very end. I forget what the skirmish
was about. There was a disagreement. [Petitioner] walked off. [M] walked
off. I chased after [Petitioner]. We were supposed to meet at a certain spot,
if we got separated. She wasn’t there. I went back to the car and we had a, a
– I got in the backseat of the car. She was in the front seat in the driver’s seat.
We screamed at each other. We were cussing at each other. She got out of
the front seat of the car and said do not follow me. And walked beyond the,
the front of the car. I got out of the car to try to get into the driver’s side of
the car. It was my car.
(continued . . .)
11
[W]hen we went to go take [the Child] to daycare and go to work, since we
working together at the time, he, we were bickering most of the morning, and
then when we got into the car, on the way to daycare, he threatened to kill
me twice in front of my son. And then when I dropped [the Child] off, that’s
when the concern was raised by my son in regard to the arguments.
* * *
Father conceded that the two got into an “ugly and vicious[]” argument that morning, but
testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he
stated that he never threatened to kill Petitioner. On the same day, in response to these two
incidents, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against
Father in the Circuit Court for Montgomery County. On June 6, 2013, the circuit court
issued a Final Protective Order that found by clear and convincing evidence that Father
had assaulted Petitioner and ordered that Father not contact Petitioner or the Child for one
year, but also authorized supervised visitation at the Grandparents’ house.11 Father was
also ordered to vacate the marital home, which he subsequently did. M remained in the
house with Petitioner and the Child until the end of June 2013.
(. . . continued)
She turned and charged the car and slammed my door, slammed the door on
my arm. I was pushing the door back and forth with her and she bit me and I
smacked her.
* * *
11
The record reflects that on September 26, 2013, Father filed a Petition to
Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,
on November 15, 2013. On January 22, 2014, Father filed a Second Petition to
Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,
on March 7, 2014.
12
On July 11, 2013, Petitioner filed a Complaint for Absolute Divorce in the Circuit
Court for Montgomery County. On August 27, 2013, Father filed an Answer to Petitioner’s
Complaint for Absolute Divorce and a Counter-Complaint for Limited Divorce, or, in the
Alternative, Absolute Divorce, Custody, Child Support, Monetary Award, Attorneys Fees
and Other Relief. Petitioner filed an Answer to Father’s Counter-Complaint and sought an
emergency pendente lite hearing seeking temporary alimony, counsel fees and other relief.
On January 14, 2014, a pendente lite consent agreement reached by the parties was
placed on the record. 12 The agreement stated that: (1) Petitioner would maintain physical
custody of the Child; (2) Father was entitled to visitation with the Child on Tuesdays and
Thursdays after school until 8 p.m., with the Child to be picked up by the Grandparents;
(3) the Child would alternate weekends between Father and Petitioner from Saturday at
9:30 a.m. to Sunday at 7:30 p.m. with transportation to be provided by the Grandparents;
(4) Father and Petitioner were required to submit to random drug testing organized by the
Child’s Best Interest Attorney (“BIA”), the testing must be completed within 24 hours, and
the results had to be provided to the BIA; (5) Father and Petitioner were required to
continue with therapy and the parties agreed to attend therapy at least twice a month; (6)
the Child would continue participating in the Safe Start program;13 (7) Father would
12
On February 28, 2014, the circuit court entered a Consent Pendente Lite Order
that incorporated, but did not merge, the January 14 transcript reflecting the parties’
pendente lite agreement.
13
The Safe Start program is a twelve-week program that helps children in various
stages of separation, divorce, and domestic violence disputes. The program provides
(continued . . .)
13
continue to pay $500 per month in child support to Petitioner; and (8) attorney’s fees would
be deferred until the divorce merits hearing. On January 14, 2014, the BIA required both
Petitioner and Father to submit to a drug test. Father tested negative for all drugs, but
Petitioner tested positive for marijuana. Petitioner tested negative for all drugs on each
subsequent drug test, including a test she took on January 24, 2014 – 10 days after her
positive test.
On February 20, 2014, the Custody Evaluator issued her report, recommending that:
(1) both parties receive a mental health evaluation with a psychiatric consultation regarding
medication; (2) both parties receive a substance abuse assessment, including the possibility
of random drug testing as part of that assessment; (3) Petitioner have primary residential
custody of the Child because she expressed a desire to have custody, she was in therapy,
and because she had accommodations for him; (4) Petitioner have sole legal custody of the
Child; and (5) Father continue to have visitation with the Child, supervised by the
Grandparents. At the custody hearing, the Custody Evaluator acknowledged that Petitioner
told her that she had not used any drugs since the parties separated, but noted that Petitioner
subsequently tested positive for marijuana on her January 14, 2014, drug test. The Custody
Evaluator also acknowledged that Petitioner had not disclosed to her that she had been
abused as a child. The Custody Evaluator stated that in her report she was concerned about
(. . . continued)
education and counseling to help children deal with conflict resolution, fears, safety
planning, peer relations, self-esteem, and guilt reduction. See SAFE START KIDS GROUP
BROCHURE, https://perma.cc/2LYJ-GFUE (last visited: June 23, 2017).
14
Petitioner’s evasive and defensive responses to her questions, and that Petitioner lied to the
Evaluator. The Custody Evaluator also expressed concern that at the time she conducted
her report that she did not see additional signs of attachment between the Child and either
parent.
On April 24, 2014, the Grandparents filed a Motion for Permissive Intervention in
the custody dispute between Petitioner and Father, and attached a copy of their proposed
Complaint for Custody with the circuit court. The Motion stated that “[the Grandparents]
have been an important and regular presence in [the Child’s life.]” In their proposed
Complaint for Custody, the Grandparents further alleged:
6. Although [the Child] has “resided” with his parents, and now pursuant to
this Court’s Pendente Lite Order entered February 28, 2014, with
[Petitioner], the Co-Intervenors have acted in loco parentis for [the Child]
since his birth in 2008.
7. Since [the Child’s] birth, there have been significant periods of time when
[the Grandparents] have cared for [the Child] on a daily basis. At other times,
they have had [the Child] in their care for as many as five overnights per
week.
8. [The Grandparents] have been active participants in [the Child’s] pre-
school and elementary school activities, and have participated in parent-
teacher conferences for [the Child].
9. In addition to extensive hands-on care for [the Child], [the Grandparents]
have frequently paid for [the Child’s] work-related child care and other
activities.
10. [The Grandparents] have also been actively involved in [the Child’s] pre-
school and school activities. Likewise, [the Child’s] Grandparents have been
actively involved in arranging play dates and other activities for [the Child].
11. [The Child’s] Grandmother has often been responsible for taking [the
Child] to the doctor and other medical appointments, and is knowledgeable
about [the Child’s] health.
15
12. For the majority of [the Child’s] life, up until the entry of the Protective
Order, the [Grandparents] cared for [the Child] in order to accommodate the
needs and whims of [Petitioner] and [Father].
13. Over time, the [Grandparents] became aware that [the Child’s] parents
were abusing drugs while [the Child] was in their care. This fact led to an
even greater level of involvement by the [Grandparents] in order to protect
and shield [the Child] from his Parent’s behavior.
14. During the ongoing litigation, a custody evaluation was performed by the
Office of the Court’s Custody Evaluator. As part of that evaluation, the
parties were questioned about their past and ongoing drug use. [Petitioner]
reported to the custody evaluator that she was not using any type of
controlled dangerous substances, as indicated by the Custody Evaluator
during her oral report to the Family Division Master on February 20, 2014
(Docket Entry 98). Both parents were required to submit to drug testing
during [t]he course of the evaluation. [Petitioner’s] test was positive for
marijuana use, contradicting the representation that she was no longer using
drugs.
15. [Petitioner] also repeated[ly] states that her drug use was at the behest of
[Father], implying that on her own, and left to her own devices, she would
not engage in recreational or other illicit consumption of controlled
dangerous substances. The positive drug test during the evaluation, when
[Petitioner] was no longer under the influence and control of [Father]
diminishes the credibility of [Petitioner’s] statement regarding her
recreational drug use.
16. [The Grandparents’] concerns regarding the Parents’ fitness to have
custody of [the Child] is echoed by this Court’s sua sponte decision to order
a psychiatric evaluation of [Father] and [Petitioner] (Docket Entry 115).
17. [The Grandparents] are in good health and are physically and emotionally
capable of caring for [the Child] on a full time basis.
18. Extraordinary circumstances exist in this matter that warrant placing [the
Child] in the residential and legal custody of his paternal Grandparents.
19. [The Child’s] best interests will be advanced by placing him in the care
and custody of his paternal Grandparents.
* * *
16
The Grandparents’ Complaint requested the circuit court award primary residential
and legal custody to them. On May 21, 2014,14 Petitioner filed a Motion to Strike
Grandparents’ Motion for Permissive Intervention alleging that the Grandparents had no
legal or factual basis for seeking to intervene in the custody action and that the
Grandparents’ motion contained substantial factual errors that did not accurately reflect the
Grandparents role in the Child’s life since Petitioner and Father separated. On June 10,
2014, Father filed an Opposition to Petitioner’s Motion to Strike Grandparents’ Motion for
Permissive Intervention. On July 25, 2014, the circuit court denied Petitioner’s motion and
granted the Grandparents’ Motion for Permissive Intervention. The circuit court
designated the Grandparents as intervening counter-plaintiffs to the custody action. On
July 28, 2014, the Grandparents filed the Complaint for Custody that had been attached to
their motion for permissive intervention. On August 4, 2014, Father filed his Answer to
the Grandparents’ Complaint for Custody and on August 18, 2014, Petitioner filed her
Answer to the Grandparents’ Complaint.
In July 2014, Petitioner’s biological daughter and the Ks moved into the marital
home with Petitioner and the Child. The Ks also brought several dogs and between fifteen
and twenty-five guinea pigs.15 Petitioner and Father both acknowledged that the Child had
14
Father filed a Response to Grandparents’ Motion for Permissive Intervention on
May 2, 2014.
15
M testified at the custody hearing that the Ks lifestyle was unclean and that they
were hoarders, but acknowledged she had never been to the Ks home and that she had only
(continued . . . )
17
a close relationship with Petitioner’s biological daughter, but Father expressed concern
regarding the closeness of the Child to the Ks, whom the Child was not related to.16
On July 14, 2014, pursuant to the pendente lite agreement, the BIA requested
Petitioner take a random drug test, but Petitioner did not comply. The BIA also requested
that Petitioner take another random drug test on August 25, 2014, which Petitioner took on
August 26, 2014. The BIA testified, however, that Petitioner never signed a release to have
her drug test results sent directly to the BIA. Instead, the drug test results were sent to
Petitioner, who then gave them to the BIA.
On September 4, 2014, Petitioner filed an Emergency Motion to Postpone/Continue
Custody Trial Scheduled for September 15, Motion for Order Permitting Discovery, and
Motion to Expedite based on the intervention of the Grandparents in the custody action.
On September 9, 2014, the Grandparents filed a Response in Opposition to Petitioner’s
Emergency Motion to Postpone/Continue Custody Trial arguing that Petitioner had actual
knowledge of the Grandparents’ allegations since April 24, 2014 and, despite the
Grandparents’ offering themselves to be deposed, Petitioner’s counsel failed to schedule
any depositions. On September 10, 2014, Father and the BIA both filed Oppositions to
Petitioner’s Emergency Motion to Postpone/Continue Custody Trial, and on September 11,
(. . . continued)
heard that the Ks were hoarders from Petitioner and Father in prior conversations they had.
M did not provide any testimony regarding the cleanliness of the marital home before or
after the Ks moved in.
16
Father testified that the Child referred to the Ks biological daughter, who is not
related to the Child, as his sister and Father believed that this was confusing for the Child.
18
2014, Petitioner filed a Reply to the Grandparents’ Opposition. The circuit court denied
Petitioner’s Emergency Motion to Postpone/Continue Custody Trial and Motion for Order
Permitting Discovery on September 12, 2014.
Also on September 4, 2014, – the same day that Petitioner filed her Emergency
Motion to Postpone/Continue Custody Trial – an incident involving the Child occurred at
his school. Prior to the incident, the Child had been increasingly disruptive during school.
The Child’s school principal testified that beginning around May 2014, when the Child
was in kindergarten, he refused to leave the kindergarten classroom with the other students
to attend “specials[]”17 on several occasions and would walk around the room, push desks,
become angry and his behavior began to escalate. To address these behavioral concerns,
the school had the Child run errands when the other children left for specials and then he
would meet them in the specials classroom. Additionally, over the summer, the Child was
enrolled in a summer-long camp that had been paid for by Petitioner, but Petitioner testified
that the Child had to be pulled out of camp early due to behavioral problems he was
experiencing, in combination with him wanting to spend more time with the Ks’ children.
Upon returning to school in late August, the Child’s behavior continued to escalate
and he began to leave class, run around the building, and show signs of anger.18 On the
17
“[S]pecials” refers to art, music, and physical education classes.
18
The principal of the school testified that
[The Child] continues to run around. He sometimes say[s] it’s a game, or
he’ll get very close to us and he gets very, he gets angry and he’ll, he’ll
squeeze his fists and his whole body tenses up and he clenches his teeth. And
(continued . . .)
19
afternoon of September 4, 2014, the Child’s behavior escalated to the point where he
kicked the assistant principal and he told the guidance counselor that he was so angry he
wanted to blow up the school, and he was going to make it bad for everybody at the school.
In response, the school determined that because the Child was showing such anger, was
not able to de-escalate, and made a threat against the school that a referral to the Crisis
Center was the appropriate course of action.
The school called Petitioner and asked her to come to the school to discuss the
Child’s behavior. Because the incident occurred on a Thursday near dismissal time, and
because Father had court-ordered visitation with the Child on Thursday evenings at the
Grandparents house, both Petitioner and the Grandmother arrived at the school around the
same time. The principal met with Petitioner alone, at her request, and they discussed how
the Child’s behavior had escalated throughout the day culminating in his becoming violent
and issuing a threat against the school. The principal explained that the guidance counselor
(. . . continued)
he’ll say, I don’t have to listen to you, you’re not the boss of me. I will give
him a direction, and I’ll say, you have a choice, you can return to your class,
or you can walk with me to the office. And he’ll say things like, or there’s a
third choice. And I’ll say no, you don’t have a third choice. These are the two
options. I’m not listening to you, you’re not the boss of me, I don’t have to
listen to you, I’m going to do what I want
So those are some of the experiences. When we’ve had in the counselor’s
office or in my office, again, he’ll show anger. He’ll not want to listen to us.
He has pushed furniture.
* * *
20
had a Crisis Center referral for the Child, and the principal encouraged19 Petitioner to take
the Child to the Crisis Center. The principal also told Petitioner that she needed to have
the Crisis Center complete the referral form and return the form to the school. After
meeting with the principal, Petitioner met with the guidance counselor and received the
Crisis Center referral. The guidance counselor explained to Petitioner that the school
prefers the student to go as quickly as possible to the Crisis Center after they are dismissed
from school.20 Petitioner did not take the Child to the Crisis Center and, instead, allowed
the Grandmother to take the Child with her for visitation. Petitioner did not tell the
Grandmother about the Child’s behavior or the Crisis Center referral she had just received.
Later that afternoon, Father learned of the Crisis Center referral from his attorney
and called the Grandparents to determine whether the Child had been taken in for an
assessment. The Grandmother did not know about the referral, but upon learning about it,
she took the Child to the Crisis Center where she met Father and the Crisis Center evaluated
the Child.21 Neither the Grandmother nor Father informed Petitioner that they had taken
19
The principal acknowledged at the custody hearing that she could not answer
whether she suggested or implied to Petitioner that Petitioner take the Child to the Crisis
Center immediately, but the principal also stated that she told Petitioner “[i]t’s very
important that [the Child] be seen by somebody. He’s making these types of threats to the
school, and to himself. We’re concerned about the safety of [the Child] and others.”
20
Petitioner testified that when she met with the guidance counselor, she was
directed to take the Child to the Crisis Center after he returned from visitation, because the
visitation was court-ordered and the guidance counselor did not want to interrupt what had
already been set up.
21
Petitioner testified at the custody hearing that she made arrangements to take the
Child to the Crisis Center after the Child returned from visitation. The record also indicates
(continued . . .)
21
the Child to be evaluated at the Crisis Center and they did not provide Petitioner with the
completed referral form. While the Child was at the Crisis Center, Petitioner attended the
Child’s back-to-school night, which the Grandfather also attended.
Petitioner testified that the Child did not return to school on Friday, September 5
because she had been referred to Children’s Hospital from the Crisis Center,22 and they had
not been “released from Children’s Hospital until 2:30 a.m. in the morning and the
attending pediatrician and the attending psychologist suggested that [the Child] should be
able to sleep in and have a day of rest at home.”23 A Crisis Center employee refuted some
of Petitioner’s testimony by stating that the Child had only been brought to the Crisis
Center once and it was the Child’s Grandmother who brought him in, with Father joining
them shortly thereafter. The record indicates that Petitioner did take the Child to Children’s
Hospital in Washington, D.C. the night of September 4, 2014 and that they arrived at the
hospital by 9:15 p.m. Petitioner stated that the Child was asked questions upon arriving at
the hospital and then they met with a psychiatrist, a pediatrician and a social worker. The
(. . . continued)
that the principal inferred from her conversation with Petitioner that Petitioner did not feel
she could take the Child to the Crisis Center until after the Child’s visitation with Father
was over. There is no evidence in the record, beyond Petitioner’s own testimony, that she
actually took the Child to the Crisis Center.
22
Petitioner testified that she had taken the Child to the Crisis Center between 8:30
and 8:45 p.m. on September 4, 2014.
23
Petitioner testified at the custody hearing that the principal had asked her to attend
back-to-school night so she allowed the Child to go with the Grandmother for visitation.
Petitioner’s testimony was refuted by the principal who stated she never told Petitioner it
was important for her attend the back-to-school night on September 4, 2014.
22
record also indicates that Petitioner testified that the Child returned to school on Monday,
September 8 and was present from the beginning of school until before lunch, but left due
to an issue with his health.24 The attendance records provided by the school indicated,
however, that the Child did not return to school until Tuesday, September 9.
The custody hearing in the present case was held from September 15 to September
19, 2014 and the circuit court issued its ruling orally on September 19. Petitioner’s
witnesses included Petitioner, the Custody Evaluator, Petitioner’s therapist, the Child’s
school principal, and the school guidance counselor. Father and the Grandparents’
witnesses included Father; both Grandparents; M; the psychologist who worked with
Petitioner, Father, and M in couple’s therapy; the Crisis Center employee who completed
the Child’s assessment; the Grandparents’ neighbor; and a member of the same church the
Grandparents attended.
In addition to the facts discussed, supra, testimony from the custody hearing
revealed that the Grandparents were heavily involved in the Child’s life. Prior to the
separation, the Child spent a substantial amount of time at the Grandparents’ house,
including several times a week and occasional weekends based on the drug and sexual
relations schedule organized by Petitioner, Father, and M. After the separation, the Child
continued to see the Grandparents regularly. The Child also had his own room at the
24
The school guidance counselor testified that on the morning of Monday,
September 8 Petitioner called her to tell her the Child had been aggressive toward her and
she felt it was unsafe for the Child to be at school.
23
Grandparents’ house where he kept his toys and books purchased for him by the
Grandparents.
The Grandmother noted in her testimony that she and the Grandfather were the
caretakers for the Grandfather’s bedridden father and for the first eighteen and a half years
of their marriage they drove to New Jersey every third weekend to help the Grandfather’s
mother care for the Grandfather’s father. The Grandmother also stated they cared for the
Grandfather’s mother in their own home while simultaneously caring for the Child, and
that the Grandfather’s mother suffered from a litany of ailments, including Alzheimer’s,
lymphoma, neuropathy, cataracts, and deafness.
Over the years, the Grandparents also involved the Child in a variety of activities,
including enrolling him in swimming lessons, arranging for the Child to attend Little
Gym,25 and taking him to church on Sundays. The Grandparents also took the Child on
day trips to Brookside Gardens and the county fair, and Petitioner allowed the Child to go
on several vacations with them, including, most recently, to the Outer Banks in the summer
of 2014. The record also reflects that although the Grandparents had previously taken the
Child to see family in Mississippi during the Child’s spring break in 2013, Petitioner
refused to allow the Child to go to Mississippi with them during his spring break in 2014.
The Grandparents would also participate in the Child’s doctor’s appointments, at times
25
The Grandparents arranged for the Child to attend Little Gym once a week from
September 2011 to February 2012. At Little Gym, the Child would do stretching activities,
tumbling, climbing, and balancing.
24
attending with Father and Petitioner, and sometimes taking the Child to the doctor’s
appointments alone.
When the Child was two years old, the Grandparents also gifted the Child with
tuition for one year at the Silver Spring Day School (“SSDS”),26 and provided daycare
during the afternoons while Petitioner and Father were at work. After the Child’s first year
at SSDS, Petitioner found and enrolled the Child in a different program through the
Montgomery County Childcare Association (“MCCA”), with financial contributions made
by the Grandparents. During that next year, the Child split time between SSDS and
MCCA, spending three days a week at MCCA and two days a week at SSDS. The
Grandparents volunteered their time approximately once a month as teaching assistants at
SSDS while the Child was enrolled there, and when the Child began attending MCCA, the
Grandparents continued to volunteer their time, reading and reciting poetry to the
children.27
26
The Silver Spring Country Day School is a yearly preschool program that runs
from 9:30 a.m. in the morning until initially noon, and after the enrollees adjust, to 1 p.m.
27
At the hearing, Petitioner testified that the Child repeatedly came home from the
Grandparents’ home with rashes or nosebleeds, but the Grandparents did not inform
Petitioner of the source of the problem. Petitioner acknowledged that the Child had
historically experienced nosebleeds. Petitioner also testified that after the separation, she
became concerned regarding aspects of the Child’s safety in the care of the Grandparents
and the Grandparents repeated failures to communicate with her regarding the Child.
Petitioner acknowledged, however, that after the separation she also stopped
communicating with the Grandparents regarding the Child’s care and medical needs.
25
The record from the custody hearing also reflected that Petitioner was a responsive
parent and actively sought to address the Child’s escalating behavior.28 The Child’s school
principal testified that beginning the second week of school, Petitioner asked questions
regarding the Individualized Education Plan (“IEP”) process as a way to address the
Child’s escalating behavior because she felt the Child needed more one-on-one or
individualized attention. Additionally, at the time of the custody hearing, the school was
evaluating how best to help the Child manage his behavior, and had implemented a
behavior contract to begin collecting data on the Child’s conduct.29 In addition to the
28
Father testified that Petitioner could not handle the Child when she was alone with
him and would become frantic if left alone with the Child for long periods of time. Father
also testified that he usually came home to Petitioner and the Child screaming at each other
and if he left, Petitioner would beg for him to hurry back as soon as possible. Father also
stated that Petitioner could not discipline the Child due to her previous childhood trauma,
and she had difficulty changing the Child’s clothes or bathing him.
M testified that she observed Petitioner yelling at the Child over seemingly minor
incidents such as forgetting to throw away the recycling materials. M also stated that
Petitioner and the Child would get frustrated with each other, Petitioner had issues
controlling the Child, the Child refused to listen to her, and that she needed help taking
care of him.
29
The principal explained:
[PRINCIPAL]: So [t]he first step in the process is calling a screening. So
what we do is we come to the table with parent input, teacher input, and
observation from another teacher in the building, and an educational
history. The special educator is involved in that screening meeting, and
at the table we decide the next steps. Whether we decide that we need
educational testing, psychological testing, or anything else.
[PETITIONER’S ATTORNEY]: And will that be for more than just whether
an IEP is appropriate or not?
(continued . . .)
26
evaluative process, Petitioner also requested that the Child be enrolled in the Linkages to
Learning program.30 The principal also testified that Petitioner attended almost every
(. . . continued)
[PRINCIPAL]: That is to determine the next step. So maybe –
[PETITIONER’S ATTORNEY]: Okay
[PRINCIPAL]: – it’s an intervention program. Maybe it’s a behavior
contract, maybe it’s further testing for the special education identification
process. But all of that is talked at, about at that table during the screening
meeting.
* * *
[PRINCIPAL, cont.]: – can I say – we have started the process of a behavior
contract. So with any interventions, that takes about six weeks to collect
that data. So we have started a behavior contract to, to collect data on his
work completion and following, excuse me, following directions and
remaining in his assigned location. So that data collection has just started
at the beginning of last week ….
* * *
[PETITIONER’S ATTORNEY]: And on this entire process you’re talking
about, you’ve had the discussion with [Petitioner]?
[PRINCIPAL]: We’ve discussed about the behavior contract.
* * *
[PETITIONER’S ATTORNEY]: And has [Petitioner] cooperated and
provided all the information and disclosures and signatures that’s
necessary?
[PRINCIPAL]: As far as I know, yes. I asked [the Child’s teacher], are the
contracts going home and coming back, and she said yes. And sometimes
there are notes from [the Child’s teacher], and I think [the Child’s teacher]
said sometimes there are notes from [Petitioner].
* * *
30
The school principal explained that the Linkages to Learning program is provided
to schools that have a high number of students living in poverty and provides wrap around
services for the student and the family. The program has a mental health provider, case
manager, and a coordinator so if the family is displaced the program can support the needs
of the family.
27
school function, she was very responsive when the school contacted her regarding the Child
and would come to the school when requested “[a]t the drop of a hat.”31 Petitioner’s
therapist also testified that approximately fifty percent of Petitioner’s treatment involved
answering Petitioner’s questions about parenting, and that Petitioner sought her advice and
referrals for a qualified therapist to help the Child.32 The record also indicates that
Petitioner paid for the Child’s before and after care at MCCA, totaling $405 per month,
and when the Safe Start program ended she sought to re-enroll the Child in the program
because she felt it was beneficial to the Child.
In their testimony, the Grandparents both acknowledged that Petitioner was
involved in the Child’s care. The Grandfather noted that although he had discussed getting
31
Petitioner’s responsiveness to the school was corroborated by the school guidance
counselor who testified that every time she had a concern with the Child and she called
Petitioner, Petitioner was “very responsive and ready to come up to school whenever need
be.”
32
The record indicates Petitioner and her therapist had located a child psychologist
they felt fit with the Child’s needs, and had planned to take the Child to be examined on
September 11, 2014. The appointment was cancelled because Father did not consent to the
Child being seen by that psychologist. Father stated that he refused to give his consent
because he felt the service recommended by the BIA – the National Family Resiliency
Center (“NFRC”) – was a better fit. The NFRC provides counseling and educational
programs to help children cope, heal, and navigate through divorce and other family
transitions. See NAT’L FAMILY RESILIENCY CENTER, https://perma.cc/4R2J-ECBD (last
visited: June 23, 2017). Father testified that he had repeatedly called the NFRC and had
spoken to the executive director twice. The BIA noted that, although she had provided the
contact information for the NFRC to Petitioner on July 30, 2014, Petitioner did not contact
the NFRC until August 28, 2014. Additionally, although the BIA presented evidence that
an appointment had been scheduled for the Child on September 9, 2014, Petitioner testified
that she never received notice that the appointment had been scheduled and, therefore, did
not take the Child in for the appointment.
28
back-to-school items for the Child with Petitioner, she had “pretty much taken care of most
of those items.” The Grandmother testified that when the Child’s previous part-time
caretaker retired, Petitioner identified another part-time caretaker that the Child stayed with
two days a week. The Grandmother also acknowledged that Petitioner organized all the
Child’s doctor’s appointments and then coordinated the dates with the Grandparents. The
Grandmother also noted that although she and the Grandfather hosted several of the Child’s
birthdays, the parties were planned with Petitioner’s and Father’s input and Petitioner and
Father hosted, planned, paid, and prepared the Child’s fourth birthday party at the marital
home.33
The record also indicates that Petitioner was gainfully employed and worked a flex
schedule, but her hours were mostly Monday through Friday from 9:00 a.m. to 5 p.m.
Petitioner acknowledged that the Child gets off school at 3 p.m. and that when he is in her
care he goes to before- and after-care until she is able to pick him up. Petitioner testified
that she typically dropped the Child off in the morning between 7:45 and 8 a.m and would
pick him up anywhere between 5:30 and 6 p.m. on days that he was in her care. Petitioner
noted that on Tuesdays and Thursdays the Grandparents pick the Child up from school at
3:30 p.m. for court-ordered visitation and they drop him off at Petitioner’s home at 8 p.m.34
Petitioner testified that after the Child’s behavior on September 4th, she had been making
33
Despite the acknowledged role that Petitioner had in the Child’s life, the
Grandmother testified that she did not think that either Petitioner or Father was “prepared
financially, socially, morally, to raise [the Child] in a[n] environment that will help [the
Child] to be the person that he has the potential to be.”
34
The Grandparents also have visitation with the Child every other weekend.
29
it a priority for her to take the Child to school when school starts and pick him up when
school lets out so that he did not have to attend before- or after-care. Petitioner stated she
was able to adjust her schedule due to work-from-home opportunities, but that she did not
know whether she would maintain that schedule, she stated it would depend on the Child’s
needs.
At the conclusion of the custody hearing, the circuit court issued an oral ruling. The
hearing judge found that Father was an unfit parent and concluded that: (1) Father’s
commitment to remain drug free was not clear; (2) the Child could be exposed to the
polyamorous and sadomasochistic activities that Father continued to engage in; and (3) the
Child would continue to be exposed to violent fights between Father and Petitioner.
The hearing judge also found Petitioner was an unfit parent and that extraordinary
circumstances existed sufficient to rule that the Grandparents should receive both physical
and legal custody of the Child. In finding that Petitioner was an unfit parent, the hearing
judge concluded:
With respect to [Petitioner], she lied throughout this case. Now, you can
make an argument, was it [Petitioner] lying or was it Morgan or was it him –
I don’t know. But it was certainly the woman on the stand and it was certainly
the woman that had all these other incidents before. And she lied about drug
usage and testing. She said she was forced to have sex with [M]. That’s been
disproved. She lied about her different identities. That’s been disproved.
She’s been caught in all these lies. She lied about taking her son to school on
September 8th. And these are so many things that she’d have to – if she was
intelligent enough – think well, I’m going to get caught on those. I either took
the child to school on September 8th or I didn’t. And then she said, well, I
took him there for part time.
And somebody that continuously lies under oath and lies to the [BIA] and
doesn’t do all the things that the [BIA] wants her to do – once she’s under
the microscope, you’d say, wow, how could she ever be trusted at a later
30
date? And she’s under oath when she’s saying these things. She was forced
to take these drugs – I don’t find that at all. I find she clearly took the drugs
voluntarily. In fact, her husband was sending her some research on some of
these drugs. It seems like that was one of their big hobbies, finding new drugs
and new ways to trip or get high or hallucinate – all against the law, by the
way. All detrimental to the marriage, not to even mention what it does to
raising a child.
And whether or not she has [DID] or not, I don’t know. But I agree with
[Father’s attorney] that if she has it, it’s a big problem. If she doesn’t have it,
it’s a big problem. Because she’s acting as if she does. And she’s
impersonating several different people.
And one that was never rebutted – that Morgan might hurt the child. She
talked about visions of Morgan cutting the baby out of her stomach. And then
we hear these things that haven’t been rebutted with respect to that she
couldn’t see her son naked or in the shower, which is about as natural as
possible for a mom with a little guy, bathing him – even before they’re even
ready for showers. Weird, odd, bizarre, troubling – yes, all of the above.
And you throw in this other family living in her home? How thoughtful of
that is her son when she’s got also her own natural daughter and adoptive
mother there as well and then the little boy, [the Child], is calling both of
them his sisters. And then you’ve got the other two living in there. And then
you throw in all the animals. It’s about as chaotic as possible. And I know
full well why [Petitioner] didn’t want the [BIA], to see the inside of that
house. She probably would have got sick if she had walked in there. And
that’s where you’re raising a child and two girls and a little boy?
And there again, you would think – all right, here I am a mom or a dad. I’ve
got the court watching me. I’ve got the [BIA] – I want to do everything I
possibly can to at least fool people, even if I’m not sincere. But she did just
the opposite. It was business as usual with her. In fact, she made it worse.
Her selfishness was then passed on to [the Child] even more when he
couldn’t take the trip to Mississippi with his grandparents. And the
grandparents – she had no axe to grind with them.
And the incident on September 4 – well, there’s a total manifestation of how
much trouble this guy is in. Because it’s not typical. He’s in major, major
trouble when you’re threatening to blow up a school and punch a vice
principal at the age of six in the stomach? That’s unheard of. Those are the
kids that we send here to the Finan Center to give them intense examination
when they’re in the juvenile delinquent system. These are kids that probably
31
have little chance of making it, because they don’t have a family to go back
to for the most part.
And yes, on that day any mother worth her salt would tell first of all the
grandparents and do everything she could to address the problem. My son
did what? We’ve got to address this right now. But hand him off to the
grandmother and not say anything? That’s just bizarre. What kind of love
does she have for her son? What kind of interest does she have for the son?
It’s like my shift’s over, somebody else worry about it. I’ll punch out. I’m at
the factory. I didn’t finish what I was supposed to do today, but the next
worker can take over. Grandma can go take over. That’s the attitude she
displayed.
Then you add – and I don’t believe her also that she’s changed the work
schedule that she has, because I don’t believe anything else she said. So that
child is dropped off at 7:45 to 8:00 every morning and picked up 5:30 to 6:00.
If it is truly from 8:00 to 6:00, that’s ten hours a day for a kid that’s in major
crisis. I would like to think a parent would quit their job if they had to, to
deal with that problem with a child. It’s no different than if that child was in
the hospital with two broken arms, two broken legs, or in a coma. You have
to make adjustments.
I don’t see any tendency on either one of them – but we’re talking about the
mother – to make the adjustment that that child needs. That child is in the
mental emergency room or should be right now. And that’s the way she
should be addressing it. And most mothers would try to move heaven and
hell to help their child, to do everything they possibly could. But not say
anything? Now, I assume she went to Children’s [Hospital]. I don’t know
whether she went out to the county for that or not. But in any event, I don’t
think there was significant follow[-u]p. And anything she did do in the way
of getting some counseling or looking into anything else – I think she was
getting good instruction from her attorney, but obviously not following other
things. I think if left to her, she wouldn’t do anything. Just drop him off at
school, he runs around in school, he flips over wastepaper baskets, so what?
And another thing – she makes excuses for everything. Everybody – it was
somebody else’s fault for everything in her testimony. Never took the blame
for anything. And I heard from the grandparents all the things that I would
expect to hear from mom. I didn’t hear how she said, you know, I just love
to put him to bed at night. I like to tuck him in. I like to read him a story. We
take little walks together. I like to go through colors with him and numbers
with him. He loves to wear this particular sweatshirt. You didn’t hear any of
that. I didn’t see any really love or total attachment. I mean, this is her flesh
32
and blood, her own son. Most mothers would give up their lives for their
children in a tragedy. A child fell into a river, they’d dive in. I think in this
case, I don’t know what she’d do. She might leisurely walk over and make a
call. I don’t know. But what I’ve seen from the time this child was born, she’s
not even acting in the way a babysitter would act. Because if she were the
babysitter and she went to school on the fourth and the teacher told her what
happened or daycare provider, she’d be calling everybody she possibly
could. She’d be calling the mother, she’d be calling the father, she’d be
calling the grandparents. Did you hear – let me tell you what the principal
said. Schools can’t make you do anything now, because that’s the way the
system is. But certainly when they send a kid to the [C]risis [C]enter, it’s
major. It’s major.
So we’ve got a mother not only taking drugs – and I find that she still takes
them or she’s still ready to take them. And she has no appreciation what
they’ve done. I don’t find any evidence that she feels terrible about doing all
these sex things with her child in the house, because she blames it on her
husband. She blames [M] on her husband. She blames the drugs on her
husband. She blames the sex on her husband. She says this is a – everybody
is making up these personalities. When [the couple’s therapist] testified, who
did everything she could to help [Petitioner] – she even said that she had
personalities.
So I find that the mother is an unfit person to have custody of this little boy.
There’s no ifs, ands or buts. It’s not even a close call. It is overwhelmingly
strong and I don’t even know if I mentioned everything. But I adopt
everything that [Petitioner’s] attorney, the grandparents[’] attorney, and the
[BIA] have said as well. And they all take that position, and the [BIA], who
is independent here, makes that finding.
And I truly thin[k] [the Grandparents] are independent, too in finding that the
parents are unfit. I value their opinion because they’re older, they’re wiser,
they’re stable. And I think they really if anything would lean towards their
son or helping him out. But I think they were extremely objective because I
think their total focus is on their grandson.
* * *
In determining that exceptional circumstances also existed in this case, the hearing
judge found that:
33
So I’m also going to find – because this case cries out for it as well – I know
it’s an or, but the Court of Appeals and [Court of] Special Appeals, I don’t
know, one day they ma[y] wake up and say it should be and. I find that there’s
extraordinary circumstances that exist here which are significantly
detrimental to the child remaining in the custody of the mother and/or the
father. And I’ve given all those reasons – the drugs, the sex, the craziness in
the house, the different relationships, the lack of interest in the mother, the
mother lying – all of those things are factors for both.
So once I find that – oh also, factors laid out by the Court in [Ross v. Hoffman,
280 Md. 172, 372 A.2d 582 (1977)], exceptional circumstances, length of
time the child has been away from the biological parents – well, the child is
away whenever they were going to do some tripping. In fact, it was such a
big deal, she wrote it on her calendar. They spent more time it seems to me
on their sex and drugs and writing down stuff and going to [the couple’s
therapist] than they did on this little guy, [the Child].
So I’ve considered that. I’ve also considered the age of the child when the
care was assumed by the third party, which was from the time of birth,
basically. At least after mom went back to work after the first year. The
possible emotional effect on the child in a change of custody – the Court has
considered that. The period of time which elapsed before the parents sought
to reclaim the child – the Court has considered that. The nature and strength
of the ties between the child and the third party custodian – the Court has
considered that. And I find they’re extremely strong with the grandparents.
The intensity and genuineness of the parents’ desire to have the child – I
don’t find that there’s intensity and genuineness on the part of [Petitioner]. I
really don’t. It’s sad because she’s the mother. The stability and certainty as
the child’s future in the custody of the parents. Well, I think it’s clear. He
would continue with instability and he would certainly fail. He’d be in crisis.
He’d be out of that public school system probably for good.
Let’s look to the grandparents. So I find the exceptional circumstances exist.
* * *
Upon determining that exceptional circumstances existed in this case, the hearing
judge next considered the fitness of the Grandparents to have custody. The hearing judge
found that:
34
With the grandparents, there’s total stability. They’ve proven it over their life
and they’ve proven it with their testimony. I find them to be sincere, genuine,
rock-solid people, the kind of people that you want raising children.
I think they were outstanding grandparents, but now they’re going to be
asked to actually serve as parents. But it won’t be the first time. Because the
parents have relied on them to do a lot of the parenting things throughout this
little boy’s life. A lot of financial things … And the parents were just content
to let them do that. I don’t see any real pride there. You’d think at some point
you’d say, dad and mom, you’ve done enough. Or we need to do more.
You’ve got the grandfather – and I find the grandparents will give this little
boy the guidance he needs which he’s not getting from his mother. They’ll
give him the time that he needs. They have the time now. And he needs time.
Not only does he need time, he needs quiet time, which he won’t get with his
mother. Anything but – it’s chaotic, it’s bizarre, I’m sure it’s loud. And he’s
just – as I said, he just happens to be there along with everybody else.
His problems would be addressed with his grandparents, which are severe
problems. And we’ve already addressed how they’ve manifested themselves
to date.
They’ll also have – the parents will not have to use before and after care.
That’s a significant part. The more time this child spends with parents or
grandparents and the less time he spends with other people watching him, the
better. You can have the best before and after care program in the United
States. It’s not the same as a mom or a dad or a grandparent who actually is
really attached to the children. I don’t see any evidence that mom is either
able to or willing to completely change her schedule. She said she changed
it last week. I asked her what she’s going to do in the future. She doesn’t
know.
Now financially, she may not be able to do that. But that’s still a factor.
That’s ten hours a day. The[n] you add the time that when she gets home,
she’s got to fix dinner – if there [is] such a thing as a sit down dinner at that
house – and feed the dogs, clean up, and change her clothes – maybe do some
things on her own. Those all take time away from this little boy. He’s
neglected. There’s no doubt about it.
The grandparents have also added the religion to his life, which is not a must,
but it’s another piece of structure in his life which he likes. And they’re
raising him and he’ll learn good values and good morals in a Christian
church. I’m not saying it’s a must. It’s not a necessary. It’s not a major factor.
35
But it shows another time that they spend with him and they do that with him
every Sunday. And he likes it and I find that can only be helpful to him.
The [grand]parents don’t smoke dope, the [grand]parents don’t have all these
crazy things. They have time for this little guy. They’re well educated people.
They know what it takes to be a productive, happy, respectful young man.
They’re dealing with some really bizarre things right now with this little boy
acting up when he gets up. I suspect they know that there’s probably more of
that down the road. I think they have the wherewithal to deal with it, either
professionally or with themselves. They know what values are. They know
what morals are. They know what goals are. They know how important it is
to sit down with him and not just say do homework, but to teach him about
things. The grandfather has nice little things that he does with him. He likes
to build things. The grandfather is a pretty talented guy with an engineering
background. Those are all wonderful things for this little boy to learn.
The [grand]mother is a former math teacher – I thought the way she handled
that situation with [the Child] was exactly how a mother should handle it or
a well-intentioned and a hands-on grandmother. I think they will give him –
they will have the patience and understanding to deal with him as opposed to
bringing in two grandparents from Mississippi that never met him and say,
well, they’re the grandparents, they can take care of him. They know him
better than the mother does. They know this little boy better than the father
does. And they’re honest. And they’re willing to keep the parents in this little
boy’s life. They know it is important – at least until they prove that their
parental rights should be terminated – and we’re not there yet – and this case
should have been a CINA case from the start. But unless their parental rights
get terminated they’ll keep the mom and dad in their lives and do the best
they can.
They are, I find, very fit and proper people to have custody. We’ve got to
look for purposes of the three judge panel, tick off some factors on
[Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 381
A.2d 1154 (1977)], but the fitness – certainly they’re both very fit to have
custody. Now, their age is up there. It is. But there’s no indication that they
have any illness and they don’t have any illnesses to deal with.
One thing I was really impressed with, the [grand]mother said, we’re
caretakers, and they talked about the relative up in New Jersey, how they
made that commitment every second week or third week of the month.
* * *
36
What I’m saying is these people will do what it takes to do for this little boy.
And if the little boy does fail, it won’t be because he’s with his grandparents.
The character reputation of the grandparents I think is top drawer. The desire
of the grandparents to have custody is clearly there. I find that they really
want to have custody by default because they know that’s his only hope. The
preference of the child – I don’t consider that at age six. Opportunities for
the future – he’s got unlimited opportunities with his grandparents,
financially, educationally, medically, emotionally – all of the things that a
child needs to be successful, to be happy, to be healthy, to have friends –
they’ll make sure he gets on the right teams or clubs or activities. They’ll
find his interests. They’ll expose him to a lot of different things that little
boys need to be exposed to. And they’ll make the right selection. They’ll give
him the right guidance. They’ll do all the things that a good mom and good
dad should do.
The age and health of the child – well, fortunately, he’s not 16. He’s not
uncontrollable physically. He’s still easy to manipulate and you can use a lot
of psychological warfare on him, even though he’s got some problems. He’s
still a little boy and you can trick him, which is a good thing.
They’ll teach him respect for others, they’ll teach him how to act at school
and deal with other people, all the things that they know, because they know
from experience. Unfortunately, the mother and father don’t have that now.
And it might be the drugs. Maybe they will. I think dad wants to. Who knows
with mom, because she lied so much, who knows?
The residence of the [grand]parents – they’ve got a big house, nice house,
more than [the Child] needs. I mean, a little boy, you can put him on the floor
in the den. But he’s got his own little room, he has his own little things. He
can build things, he has a nice quiet place to do his homework. Where in the
lord’s name does he do his homework [at the marital home]? Is there any
homework? I don’t know. In the first grade, you don’t get much, but you will
later on, and there is some.
So under [Sanders] they fit all the categories. As I said, he’s six. And maybe
mom and dad later on will improve. Dad has made some great steps in it.
And I keep coming back to – hey, [Petitioner’s] kind of blasé about the whole
situation. It’s really interesting. And she turned on the very people that have
been such a rock solid financial benefit and such a great resource for their
son. I mean, they didn’t ask for money. They did all of these things because
they love their little grandson. And the thanks she gives them is well, I think,
37
you know, well they don’t use the right car seat. I mean, come on. Let’s find
something we can attribute blame to,
So if she had custody – [Petitioner] – I think the grandparents would be out
of the picture. There’s no doubt about it. And I think there would be a fight
over visitation with the father. And that would be one of the worst things that
could happen to this little guy. He needs those people. Thank [G]od for
grandparents in this case. And believe me, I lean heavily towards parents. I
know the grandparents do, too. In the order of things, that’s who should be
raising these guys. But fortunately, you folks are there.
* * *
The hearing judge subsequently awarded physical custody of the Child to the
Grandparents. The hearing judge granted visitation to Petitioner on every other weekend
from Saturday at 9:00 a.m. to Sunday at 7:00 p.m., with no overnights, but every other
Sunday of the visitation weekends, Petitioner’s visitation hours were modified to 12:30
p.m. to 7:00 p.m. so the Child could continue to attend church services with his
Grandparents. The hearing judge also stated he would not order drug counseling for either
Father or Petitioner, finding that if the parties “want to keep smoking dope and taking
hallucinatory drugs and having as many sex partners as you can – well, great. That’s your
life. But we’re not going to let it impact on this little guy. If you want to break the law, you
break the law.”
On September 30, 2014, the hearing judge entered an interim order granting sole
legal and physical custody of the Child to the Grandparents, with both parents retaining the
right to visitation. The interim order also required Father to pay child support in the amount
of $500 per month directly to the Grandparents, and stated a hearing would be set before a
magistrate to determine Petitioner’s child support obligations. On October 7, 2014, the
Grandparents filed an Emergency Motion to Modify and Limit Petitioner’s Access to the
38
Child, requesting the circuit court modify the Interim Order to grant the Grandparents
discretion in determining the frequency and duration of Petitioner’s access to the Child.
The circuit court held an emergency hearing regarding the Grandparents’ Motion on
October 17, 2014, and on October 28, 2014 issued a Second Interim Order granting the
Grandparents’ Emergency Motion and modified Petitioner’s rights to visitation.
On December 16, 2014, the circuit court entered a Final Order in the custody case that,
inter alia, outlined the visitation schedule for the Child during holidays and summer break,
and apportioned the payment owed to the BIA between Petitioner and Father. The Order
also stated that “this Court has considered the issues adjudicated, the claims brought, the
need to defend against those claims, and the financial status of the parties.” Also on
December 16, 2014, a notice was sent to the parties scheduling a hearing regarding child
support for March 11, 2014.
II. Child Support Proceedings
On December 30, 2014, the Grandparents filed a Motion for Child Support in the
circuit court seeking child support from both Petitioner and Father to cover the care of the
Child, including “extraordinary medical expenses” that ranged between $1,400 and $2,000
per month for the Child’s psychiatric care. On February 26, 2015, Petitioner filed a
Response in Opposition to the Grandparents’ Motion for Child Support. A hearing was
held on March 11, 2015, where a magistrate considered whether child support should be
paid by Petitioner and Father to the Grandparents for the care of the Child.35 On March
35
Father filed an Answer to the Grandparents’ Motion for Child Support on the
morning of the hearing – March 11, 2015.
39
24, 2015, the magistrate issued his findings of fact and conclusions of law regarding child
support. The magistrate acknowledged that an order titled “Final Order” had been entered
by the trial court on December 16, 2014, but concluded that, because the order did not
address child support, it could not be a final disposition of the case pursuant to both
Maryland Rule 2-60236 and our decision in Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d
767 (1989).37
36
Maryland Rule 2-602 states:
(a) Generally. Except as provided in section (b) of this Rule, an order or
other form of decision, however designated, that adjudicates fewer than
all of the claims in an action (whether raised by original claim,
counterclaim, cross-claim, or third-party claim), or that adjudicates less
than an entire claim, or that adjudicates the rights and liabilities of fewer
than all the parties to the action:
(1) is not a final judgment;
(2) does not terminate the action as to any of the claims or any of the
parties; and
(3) is subject to revision at any time before the entry of a judgment that
adjudicates all of the claims by and against all of the parties.
(b) When Allowed. If the court expressly determines in a written order that
there is no just reason for delay, it may direct in the order the entry of a
final judgment:
(1) as to one or more but fewer than all of the claims or parties; or
(2) pursuant to [Maryland] Rule 2-501(f)(3), for some but less than all of
the amount requested in a claim seeking money relief only.
37
In Rohrbeck, we stated that for a ruling to “constitute a final judgment, it must
contain the following three attributes: (1) it must be intended by the court as an unqualified
final disposition of the matter in controversy[;] (2) unless the court properly acts pursuant
to Maryland Rule 2-602(b)[,] it must adjudicate or complete the adjudication of all claims
against all parties[;] and (3) the clerk must make a proper record of it in accordance with
[Maryland] Rule 2-601.” Rohrbeck, 318 Md. at 41, 566 A.2d at 773. The magistrate
concluded that because the Final Order did not adjudicate the issue of child support
between the parties it could not be considered a final judgment.
40
The magistrate also rendered the following findings of fact and conclusions of law
in recommending that both Petitioner and Father pay child support to the Grandparents:
So, now having decided that child support to be paid by [Petitioner and
Father] were properly before me on March 11th, the questions to be answered
are as follows. What is the appropriate amount of child support? Two, how
is that amount of child support to be determined? And three, when do the
child support payments begin? Now, with regard to determining what the
appropriate amount of child support is, I first just want to note that under the
law, and we all know this, each parent has a legal obligation to financially
support their children. Section 5-203 of the Family Law Article specifically
provides that the parents of a minor child are jointly and sever[ally]
responsible for the child’s support and care, nurture, welfare, and education.
Then, in section 10-203 of the Family Law Article, it states a parent may not
willfully fail to provide for the support of his or her minor child.
And, these two statutory provisions that I’ve noted are supported by the Court
of Appeals in the [Drummond v. State to Use of Drummond, 350 Md. 502,
714 A.2d 163 (1998)] case … [where] the Court of Appeals stated, the duty
of parents to provide for the maintenance of their children is a principle of
natural law, an obligation laid on them, not only by nature itself, but by their
own proper act in bringing them into the world, by begetting them. Therefore,
they have entered into a voluntary obligation to endeavor as far as in them
lies that the life which they have bestowed shall be supported and preserved.
So, there’s no question that [Petitioner and Father] are obligated under the
law to financially support [the Child].
Now, with regard to the amount of child support, the question in my mind
was how was child support to be determined when the child has been placed
in the custody of a third party and not with one of the biological parents?
First, I note that Family Law Article section 12-202, which all the attorneys
are familiar with, which is the Maryland Child Support Guidelines, provides
that quote in any proceeding to establish or modify child support, the court
shall use the Child Support Guidelines. I could not find any case law, and
none was presented to me, establishing whether the guidelines must be used
in a case with facts such as the facts which are presented to me here.
However, there is case law which established that when a child is placed in
the custody of a government agency, the parents are still obligated to pay
child support, and the amount to be paid is to be established using the
Maryland Child Support Guidelines.
41
In a 1993 case, the Court of Special Appeals in [In Re Joshua W., 94 Md.
App. 486, 617 A.2d 1154 (1993)] noted that the General Assembly intended
that the Child Support Guidelines be used in all child support cases, including
those like the one in [Joshua] involving government-financed child care
when the child has not been placed in the custody of either of the biological
parents. The Court of Special Appeals in [Joshua] noted that the Child
Support Guidelines were most often used when one biological parent or the
other had physical custody. Dispute [sic] this emphasis on custodial and non-
custodial parents, and sole and shared physical custody in the guidelines,
there is nothing in the statute or its legislative history to suggest that the
General Assembly intended that Child Support Guidelines only be applied to
the usual child support cases. The Court of Special Appeals concluded that
the guidelines were to be used in all cases when child support was at issue.
And then, just recently, I guess nine years ago now, the Court of Special
Appeals decision was followed by the Court of Appeals in [In re Katherine
C., 390 Md. 554, 890 A.2d 295 (2006)]. So, I’m required to use the
guidelines.
The next question is when does the amount of child support begin for the
parents? Now, with regard to modification cases, it’s clear under Family Law
Article 12-104,[38] and basically it states that it has been shown that there has
been a modification of circumstances that are material. And then, the statute
clearly states that the amount of the new child support can only begin from
the date of filing. With regard to an initial filing or initial request for child
support, as would be the case with regard to [Petitioner], the [Grandparents]
argued that the court has the authority to make a child support award prior to
the date of the first pleading. And again, the first pleading in this case seeking
child support was December the 30th, 2014.
38
Family Law Article §12-104 states:
Modification of child support
(a) The court may modify a child support award subsequent to the filing of a
motion for modification and upon a showing of a material change of
circumstance.
Modification not retroactive
(b) The court may not retroactively modify a child support award prior to the
date of the filing of the motion for modification.
42
I was not able to find any case law or statutory authority to support the
[Grandparents’] position with regard to starting child support prior to the date
of the filing requesting the child support. I note that under [Family Law
Article] section 12-101(a)(3), it states that for any other pleading that
requests child support, the court may award child support for a period from
the filing of the pleading that requests child support. I could not find any
cases directly on point with this, but there is statements made in appellate
decisions, such as in [Krikstan v. Krikstan, 90 Md. App. 462, 601 A.2d 1127
(1992)], says it is within the discretion of the chancellor to determine whether
to make the award retroactive to the time of filing. And, I think that statement
suggests that we are not to go prior to the date of the filing. And, I think the
language in [Family Law §]12-101(a)(3) also supports that child support may
be awarded from the filing of the pleading.
Then, there was an argument made by counsel that if it was determined that
the guidelines would be the appropriate manner in which to determine the
amount of child support to be paid by the parties, that I deviate from those
guidelines. The attorneys know, this is well-stated or well-known, that the
amount of child support called for under the guidelines is presumed to be
correct. The presumption can be rebutted by evidence that the application of
the guidelines would be unjust or inappropriate in a particular case. And then,
if I am to deviate from the guidelines, I have to state what the amount called
for under the guidelines would be, and then also how the deviation benefits
the children.
So, those are the conclusions of law that I’m finding in this case.
* * *
The magistrate then assessed Petitioner’s and Father’s income and determined
Petitioner’s annual income from her employment at Direct Energy was $37,605.24 and her
actual monthly income was $3,134. The magistrate determined that Father was
unemployed, having previously worked at Geotech until he was laid off, and he received
$1,820 per month in unemployment benefits. The magistrate took judicial notice that
Father was under a separate child support order in the amount of $475 per month for
another child. The magistrate also acknowledged that the Child had been under the care of
43
both a psychiatrist and psychologist since 2014, and had been diagnosed with Attention
Deficit Hyperactivity Disorder (“ADHD”),39 an anxiety disorder, and operational defiant
disorder (“ODD”).40 The magistrate concluded – based on the psychiatrist’s testimony at
39
The DSM-V states that the essential feature of ADHD is “a persistent pattern of
inattention and/or hyperactivity-impulsivity that interferes with functioning or
development.” Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (5th Edition 2013), https://perma.cc/J2MF-T7CC (last accessed: June
30, 2017). The DSM-V explains that:
Inattention manifests behaviorally in ADHD as wandering off task, lacking
persistence, having difficulty sustaining focus, and being disorganized and is
not due to defiance or lack of comprehension. Hyperactivity refers to
excessive motor activity (such as a child running about) when it is not
appropriate, or excessive fidgeting, tapping, or talkativeness …. Impulsivity
refers to hasty actions that occur in the moment without forethought and that
have high potential for harm to the individual (e.g., darting into the street
without looking). Impulsivity may reflect a desire for immediate rewards or
an inability to delay gratification. Impulsive behaviors may manifest as social
intrusiveness (e.g., interrupting others excessively) and/or as making
important decisions without consideration of long-term consequences (e.g.,
taking a job without adequate information).
* * *
Id.
40
The DSM-V states that the essential feature of ODD is “a frequent and persistent
pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness[.]” Am.
Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th
Edition 2013), https://perma.cc/HET6-RJ57 (last accessed: June 30, 2017). The DSM-V
also states that:
The symptoms of [ODD] may be confined to only one setting, and this is
most frequently the home. Individuals who show enough symptoms to meet
the diagnostic threshold, even if it is only at home, may be significantly
impaired in their social functioning. However, in more severe cases, the
symptoms of the disorder are present in multiple settings. Given that the
pervasiveness of symptoms is an indicator of the severity of the disorder, it
is critical that the individual’s behavior be assessed across multiple settings
and relationships.
(continued . . .)
44
the March 11 hearing – that the Child would need long-term psychiatric and
psychotherapeutic care. The magistrate acknowledged that the Child was covered, at no
additional cost, under the Grandparents family health insurance plan, but that the
Grandparents paid out-of-pocket for the Child to see both the psychiatrist and psychologist
outside of the Grandparents’ insurance plan in the amount of $1,312.50 per month.
Based on these factual findings, the magistrate concluded that:
I believe that the Maryland Guidelines are required to be used in this case. I
believe that the child support to be ordered can only be from the date of filing
for the child support by the [Grandparents] on December the 30th, 2014, with
regard to the amount to be paid by [Petitioner] and with regard to the
modification of the amount previously ordered to be paid by [Father]. Using
the guidelines and the facts that I found based upon the evidence, the amount
(. . . continued)
* * *
There are several key considerations for determining if the behaviors are
symptomatic of [ODD]. First, the diagnostic threshold of four or more
symptoms within the preceding 6 months must be met. Second, the
persistence and frequency of the symptoms should exceed what is normative
for an individual’s age, gender, and culture. For example, it is not unusual
for preschool children to show temper tantrums on a weekly basis. Temper
outbursts for a preschool child would be considered a symptom of [ODD]
only if they occurred on most days for the preceding 6 months, if they
occurred with at least three other symptoms of the disorder, and if the temper
outbursts contributed to the significant impairment associated with the
disorder (e.g., led to destruction of property during outbursts, resulted in the
child being asked to leave a preschool).
The symptoms of the disorder often are part of a pattern of problematic
interactions with others. Furthermore, individuals with this disorder typically
do not regard themselves as angry, oppositional, or defiant. Instead, they
often justify their behavior as a response to unreasonable demands or
circumstances. Thus, it can be difficult to disentangle the relative
contribution of the individual with the disorder to the problematic
interactions he or she experiences.
* * *
Id.
45
of child support called for under the guidelines would be $1,467 per month
by [Petitioner], and $629 per month by [Father]. I’m handing out now to the
attorneys the child support worksheet which I used.
Now, I considered a deviation from the guidelines. The only evidence that
the guidelines amount would be unjust or inappropriate is that the guidelines
call for a significant amount from both [Petitioner’s] monthly adjusted actual
income and [Father’s] monthly adjusted actual income. The amount called
for under the guidelines would be 47 percent of [Petitioner and Father’s]
monthly adjusted income, and that is significant. But I note that to deviate
from the guidelines would mean that the cost for providing for [the Child]
would fall to the [Grandparents] who have no legal obligation to financially
support [the Child], and I will not do this.
* * *
The magistrate subsequently entered his recommendation that Petitioner be
obligated to pay child support to the Grandparents in the amount of $1,467 per month, with
arrearages in the amount of $4,401. The magistrate recommended the arrearages be repaid
at a rate of $25 per month until paid in full. In regard to Father, the magistrate
recommended that the interim order be modified to reflect that Father pay child support to
the Grandparents in the amount of $629 per month, with arrearages in the amount of
$3,387. Similarly as to Petitioner, the magistrate recommended the arrearages be repaid at
a rate of $25 per month until repaid in full. The magistrate also recommended that Father
provide the Grandparents with information about his attempts to locate full-time
employment every 60 days, commencing on the 60th day from the entry of the magistrate’s
order until he finds full-time employment.
On April 4, 2015, Petitioner filed Exceptions to the Magistrate’s Recommendations
Concerning Findings of Fact and Conclusions of Law challenging: (1) the magistrate’s
finding that the Final Order entered on December 16, 2014 was not a final judgment and
46
considering the merits of the Grandparents’ Motion for Child Support; (2) the magistrate’s
finding of “extraordinary medical expenses” in light of the fact the Grandparents had an
insurance plan that covered the psychological and psychiatric care for the Child and no
explanation was provided for why the Child was seeing a psychiatrist and psychologist that
were not covered under the Grandparents insurance plan; (3) the magistrate’s determination
that the Grandparents were similarly situated to a guardian appointed by a government
agency and that they were under no legal obligation to support the Child; and (4) the
magistrate’s determination that Petitioner should pay $1,467 per month or 47 percent of
her monthly income in excess of federal and state mandates. On May 26, 2015, the circuit
court denied Petitioner’s Exceptions and granted the Grandparents’ Motion for Child
Support in accordance with the magistrate’s recommendations.
On June 19, 2015, Petitioner filed a timely Notice of Appeal to the Court of Special
Appeals. On December 7, 2016, in a reported opinion, the Court of Special Appeals held,
inter alia, that: (1) the circuit court did not abuse its discretion when it granted the
Grandparents’ motion for permissive intervention; (2) the circuit court did not abuse its
discretion in finding Petitioner was unfit; (3) the circuit court did not abuse its discretion
when it found that exceptional circumstances existed in the case at bar; and (4) the circuit
court did not abuse its discretion in awarding child support to the Grandparents. 41 See
Burak v. Burak, et al., 231 Md. App. 242, 150 A.3d 360 (2016).
41
The Court of Special Appeals also considered the following issues in its opinion:
(1) whether the circuit court abused its discretion by soliciting expert testimony during a
hearing in an “unorthodox manner;” (2) whether the circuit court erred in permitting the
(continued . . . )
47
On March 3, 2017, we granted Petitioner’s petition for writ of certiorari to address
the following questions:
(1) May grandparents intervene in a custody dispute between parents to seek
custody of their grandchild before there has been an adjudication of the
unfitness of the custodial parents?
(2) May the “exceptional circumstances” test set forth by this Court in Ross
v. Hoffman, 280 Md. 172, [372 A.2d 582] (1977), be used to take custody
away from a biological parent with whom the child has lived for his entire
life?
(3) May a parent be required to pay child support to grandparents and, if so,
may child support be awarded without consideration of the financial
resources of the grandparents?
STANDARD OF REVIEW
We have held that, regardless of whether a party seeks to intervene as of right or
permissively, the decision to allow a party to intervene “is dependent upon the individual
circumstances of each case and rests in the sound discretion of the trial court, which, unless
abused, will not be disturbed on appellate review.” Md. Radiological Soc., Inc. v. Health
Services Cost Review Comm’n, 285 Md 383, 388, 402 A.2d 907, 910 (1979) (quoting
NAACP v. New York, 413 U.S. 345, 365-66, 93 S. Ct. 2591, [2606-03] (1973)).
In In re Yve S., 373 Md. 551, 819 A.2d 1030 (2003), we established that there are
three distinct aspects to our review in child custody disputes. We held that
When the appellate court scrutinizes factual findings, the clearly erroneous
standard of [Maryland Rule 8-131(a)] applies. [Second], if it appears that the
(. . . continued)
Grandparents to intervene in the parties’ divorce property distribution hearing; and (3)
whether the circuit court erred in awarding Father with “contributions made towards
maintenance of the family home.” Because those issues were not raised on appeal before
this Court we do not address the lower Court’s holdings regarding those issues.
48
[hearing court] erred as to matters of law, further proceedings in the trial
court will ordinarily be required unless the error is determined to be harmless.
Finally, when the appellate court views the ultimate conclusion of the
[hearing court] founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the [hearing court’s] decision should
be disturbed only if there has been a clear abuse of discretion.
Id. at 586, 819 A.2d at 1051 (citations omitted). We also concluded that
[I]t is within the sound discretion of the [hearing court] to award custody
according to the exigencies of each case, and as our decisions indicate, a
reviewing court may interfere with such a determination only on a clear
showing of abuse of that discretion. Such broad discretion is vested in the
[hearing court] because only he [or she] sees the witnesses and the parties,
hears the testimony, and has the opportunity to speak with the child; he [or
she] is in a far better position than is an appellate court, which has only a cold
record before it, to weigh the evidence and determine what disposition will
best promote the welfare of the minor.
Id. at 585-86, 819 A.2d at 1051 (citations omitted).
DISCUSSION
I. Grandparents’ Intervention
Petitioner argues that her fundamental constitutional rights were violated when the
circuit court allowed the Grandparents to intervene in the custody dispute between her and
Father, prior to a finding of either parental unfitness or the existence of exceptional
circumstances. Petitioner notes that in McDermott v. Dougherty, 385 Md. 320, 869 A.2d
751 (2005), we held that, in third-party custody disputes, the circuit court “must first find
that both natural parents are unfit to have custody of their children or that extraordinary
circumstances exist which are significantly detrimental to the child” before the circuit court
may consider the best interests of the child standard. See id., at 325, 869 A.2d at 754.
Petitioner contends, however, that we did not address the question of whether the required
49
preliminary finding of parental unfitness should occur in a separate proceeding or hearing
and did not consider the rule in the context of third-party intervention in parental custody
disputes. In Petitioner’s view, allowing third-parties to intervene in a parental custody
dispute without a prior finding of parental unfitness or extraordinary circumstances violates
the fundamental liberty interest of parents in raising their children without the interference
of the State. Petitioner contends that in the case at bar, the Grandparents were permitted
to intervene in the custody action on the basis of a general allegation of extraordinary
circumstances and by suggesting in their motion for intervention that they were concerned
about the fitness of the parents.
Petitioner notes that in Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002), a
Massachusetts case addressing grandparent visitation, the Supreme Judicial Court of
Massachusetts required that petitions filed by grandparents seeking visitation with their
grandchild were required to be pled with specificity and verified in order to safeguard the
parents’ constitutional right to be free from interference in their parental decisions. See id.
at 1066. Petitioner contends that depriving a parent of custody is a far greater impingement
on parental rights, and yet, the circuit court in this case allowed the Grandparents to
intervene in the custody action without requiring any specific allegations that supporting
the claim that Petitioner was an unfit parent.
Petitioner avers that if third-parties are permitted to intervene in custody disputes
between parents prior to a finding that both parents are unfit then: (1) there is an increased
likelihood that the third-party will become a proxy for one of the parents in the custody
dispute; (2) the third-party’s claims will add to the already considerable cost and strain of
50
custody litigation; and (3) there will be an increased likelihood of bias and unfairness in
determining the outcome of the custody dispute.
Petitioner contends that allowing third-party intervention into custody disputes
encourages third-parties to serve as proxies, especially in circumstances where it becomes
evident that one of the parents will not be granted custody, which Petitioner avers occurred
here. Petitioner argues that allowing this type of proxy role in custody disputes may: (1)
cause harm to parent-child relationships; (2) violate the constitutional rights of the parents;
and (3) cause an increase in frequency, cost, and stress of custody litigation – which itself
constitutes an unconstitutional burden on a parent’s fundamental right to raise their
children. See McDermott, 385 Md. at 422, 869 A.2d at 811 (citing Parham v. J.R., 442
U.S. 584, 602, 99 S. Ct. 2493, 2504 (1979)); see also Major v. Maguire, 128 A.3d 675,
687 (N.J. 2016) (concluding in a grandparent visitation case that “[b]y virtue of its capacity
to intrude upon the privacy of both parent and child and consume scarce resources, the
parties’ litigation may itself infringe on the parent’s due process right to autonomy, and
cause harm to the child[.]”); Glidden v. Conley, 820 A.2d 197, 206 (Vt. 2003) (recognizing
that a parent’s constitutional right to raise a child can be implicated by burden of litigation
domestic relations proceedings).
Petitioner also argues that allowing third-parties to intervene prior to a finding of
unfitness facilitates biased and unfair findings based on subjective considerations made by
the hearing judge. Petitioner notes that in McDermott we cited approvingly a New Jersey
Supreme Court case, Watkins v. Nelson, 748 A.2d 558 (N.J. 2000), where the New Jersey
court expressly declined to adopt a test that would assess whether “the child’s growth and
51
development would be ‘detrimentally affected’ by placement with a parent.” See
McDermott, 385 Md. at 375-81, 869 A.2d at 783-87 (quoting Watkins, 748 A.2d at 565-
68). Among the flaws the Watkins Court found in such an approach, was that “[t]he use of
such a standard to decide custody disputes between a fit parent and a third party will evolve
into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at
380, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 568). Petitioner also notes that the
Watkins Court expressed concern that without sufficient protection of parental rights, “a
judge may take children from their parents because the judge personally [disapproves of]
the parents.” Id. at 379, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 567). In adopting
the rule that a third-party must first rebut the presumption favoring parental custody by
“proof of gross misconduct, abandonment, unfitness or the existence of ‘exceptional
circumstances,’” the Watkins court concluded that it wanted to “minimize judicial
opportunity to engage in social engineering in custody cases involving third parties.”
Watkins, 748 A.2d at 559, 567.
In contrast to Petitioner’s arguments, the Grandparents aver there was no procedural
bar to their filing a motion to intervene in the custody action, because Maryland Rule 2-
214 allows a person to intervene in an action “when the person’s claim or defense has a
question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The
Grandparents acknowledge that Maryland Rule 2-214 also requires the court to consider
“whether the intervention will unduly delay or prejudice the adjudication of the rights of
the original parties” and that there are certain procedural requirements the person seeking
to intervene must follow, but argue that they complied with the procedural requirements
52
and Petitioner was not unduly prejudiced. See Maryland Rule 2-214(b)(3), (c).42 The
Grandparents aver that Petitioner’s main argument is that we should read a preliminary
step into Maryland Rule 2-214 that would require an initial judicial determination of
unfitness or exceptional circumstances before a third-party would be permitted to
intervene. The Grandparents note, however, that the underlying purpose of Maryland Rule
2-214 “is to promote judicial economy in litigation.” See Md. Rules Commentary, Rule 2-
214 at 199. The Grandparents contend, therefore, that requiring the initial step that
Petitioner seeks would be in contravention of the purpose of the permissive intervention
rule.
The Grandparents argue that the main flaw in Petitioner’s argument is her
misreading of the plain language in McDermott. They contend that McDermott did not
contemplate a separate or bifurcated proceeding to determine whether a parent is fit or that
exceptional circumstances exist. Rather, the Grandparents argue that the “first” language
in McDermott is intended to instruct hearing courts that, prior to evaluating the best
interests of the child, it must first determine that the third-party has been elevated to the
same constitutional level as the parent. See In re Rashawn H., 402 Md. 477, 495, 937 A.2d
42
Maryland Rule 2-214(c) states that:
(c) Procedure. A person desiring to intervene shall file and serve a motion
to intervene. The motion shall state the grounds therefor and shall be
accompanied by a copy of the proposed pleading, motion, or response
setting forth the claim or defense for which intervention is sought. An
order granting intervention shall designate the intervenor as a plaintiff or
defendant. Thereupon, the intervenor shall promptly file the pleading,
motion, or response and serve it upon all parties.
53
177, 188 (2007). The Grandparents also argue that bifurcating the preliminary inquiry
from the best interest analysis would be difficult because many of the facts that establish
the initial inquiries would necessarily be used to address the best interest of the child
analysis. The Grandparents contend that Petitioner’s argument favoring a preliminary
proceeding also has a logical flaw because if the court was to determine in the initial
proceeding that both parents were unfit, the court would have no ability to act immediately
to protect the minor child.
The Grandparents also aver that Maryland has a well-established history of
permitting third-parties to participate in custody litigation. See De Angelis v. Kelley, 184
Md. 183, 40 A.2d 332 (1944) (acknowledging that a third-party has a right to participate
in custody litigation); Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952) (“Pick”) (holding
that there is a prima facie presumption that a child should be in the care and custody of
parents, and the burden is on the third-party to overcome the presumption). The
Grandparents note that in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977)
(“Hoffman”), we concluded that
[w]hen the dispute is between a biological parent and a third party, it is
presumed that the child’s best interest is subserved by custody in the parent.
That presumption is overcome and such custody will be denied if (a) the
parent is unfit to have custody, or (b) if there are such exceptional
circumstances as make such custody detrimental to the best interest of the
child. Therefore, in parent-third party disputes over custody, it is only upon
a determination by the equity court that the parent is unfit or that there are
exceptional circumstances which make custody in the parent detrimental to
the best interest of the child, that the court need inquire into the best interest
of the child in order to make a proper custodial disposition.
54
Id. at 178-79, 372 A.2d at 587; see also McDermott, 385 Md. at 374, 869 A.2d at 783. The
Grandparents contend that these cases establish that they had the ability to initiate their
own custody case naming Petitioner and Father as defendants and that, had they done so,
the case would have likely been consolidated with the pending custody action between
Petitioner and Father, pursuant to Maryland Rule 2-503.43
We hold that there is no procedural bar preventing a third-party from seeking to
permissively intervene44 in an existent custody action as long as he or she can make a prima
43
Maryland Rule 2-503 states, in relevant part:
(a) Consolidation.
(1) When Permitted. When actions involve a common question of law or
fact or a common subject matter, the court, on motion or on its own
initiative, may order a joint hearing or trial or consolidation of any or
all of the claims, issues, or actions. An action instituted in the District
Court may be consolidated with an action pending in a circuit court
under the circumstances described in [Courts & Judicial Proceedings]
Article §6-104(b). The court may enter any order regulating the
proceeding, including the filing and serving of papers, that will tend
to avoid unnecessary costs or delay.
(2) Verdict or Judgment. In the trial of a consolidated action, the court
may direct that joint or separate verdicts or judgments be entered.
(b) Separate Trials. In furtherance of convenience or to avoid prejudice, the
court, on motion or on its own initiative, may order a separate trial of any
claim, counterclaim, cross-claim, or third-party claim, or of any separate
issue, or of any number of claims, counterclaims, cross-claims, third-
party claims, or issues.
The Grandparents note that both matters would have raised common questions of fact and
law because both dealt in the same subject matter – the custody of the Child.
44
Grandparents and other third-parties seeking to intervene in a custody action
between a child’s biological parents do not have the right to intervene in the custody action
(continued . . .)
55
facie showing that the parents are either unfit or that exceptional circumstances exist and
that the child’s best interests would be served in the custody of the third-party.45
(. . . continued)
As a matter of right. As we stated in McDermott,
Where the [custody] dispute is between a fit parent and a private third party,
however, both parties do not begin on equal footing in respect to rights to
“care, custody, and control” of the children. The parent is asserting a
fundamental constitutional right. The third party is not. A private third party
has no fundamental constitutional right to raise the children of others.
Generally, absent a constitutional statute, the non-governmental third party
has no rights, constitutional or otherwise, to raise someone else’s child.
McDermott, 385 Md. at 353, 869 A.2d at 770 (emphasis added). Thus, a third-party does
not have “an unconditional right to intervene as a matter of law” in a custody dispute
between a child’s parents, and may only do so if they satisfy the pleading requirements for
permissive intervention as modified by this opinion. See Maryland Rule 2-214.
45
In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), a case addressing
grandparents’ right to visitation, we concluded that
if third parties wish to disturb the judgment of a parent, those third parties
must come before our courts possessed of at least prima facie evidence that
the parents are either unfit or that there are exceptional circumstances
warranting the relief sought before the best interests standard is engaged.
Id. at 440, 921 A.2d at 192. We also explained in a footnote that
[a]t any evidentiary hearing on a petition, the petitioners must produce
evidence to establish their prima facie case on the issue of either parental
unfitness or exceptional circumstances as well as evidence sufficient to tip
the scales of the best interests balancing test in their favor. We appreciate
that there may be circumstances where evidence proffered for the satisfaction
of a threshold element also may have relevance in the determination of the
best interest standard. We do not intend to foster a “trial within a trial.” At
the end of the day, petitioners, in order to be successful, must shoulder the
burdens to adduce at least a prima facie case on both the
unfitness/exceptional circumstances standard and the best interests standard.
(continued . . .)
56
Specifically, a third-party seeking to intervene in a custody dispute must include detailed
factual allegations in his or her pleading that, if true, would support a finding that both
biological parents are either unfit or that exceptional circumstances exist and that the best
interests of the child would be served in the custody of the third-party. See Maryland Rule
2-214(c) (requiring a party seeking to intervene in a cause of action to “state the grounds”
upon which they are seeking to intervene). We note that, in third-party custody disputes,
a third-party can only prevail in obtaining custody of a child if he or she overcomes the
presumption that the child’s best interest is served by being placed in the custody of the
parent, by showing that the parents are either unfit or there are exceptional circumstances
that would make custody with the parent detrimental to the best interests of the child. See
McDermott, 385 Md. at 374, 869 A.2d at 783; Hoffman, 280 Md. at 178-79, 372 A.2d at
587. The parties acknowledge the presumption favoring parental custody exists because
“the Due Process Clause of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their children.”
Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000); see also McDermott,
385 Md. at 326, 869 A.2d at 754 (concluding that Troxel’s plurality holding that parents
(. . . continued)
Id. at 445 n. 23, 921 A.2d at 195 n. 23. We also acknowledged “that the standards and
processes relevant to all manner of custody and visitation determinations are nearly
identical.” Id. at 442-43, 921 A.2d at 194. Quoting our decision in Boswell v. Boswell,
352 Md. 204, 721 A.2d 662 (1998), we also recognized that “‘the case law discussed in
this opinion concerning custody determinations, and the principles governing such
situations, are equally applicable to visitation proceedings.’” Id. (quoting Boswell, 352
Md. at 236, 721 A.2d at 677). Thus, our own precedent provides support for adopting this
initial pleading requirement in custody actions where a third-party seeks to intervene
57
have a fundamental right to make decisions regarding their children is “instructive”)
(citation omitted).
Accordingly, we hold that for a third-party to have standing to intervene in a custody
action, he or she must plead sufficient facts that, if true, would support a finding of either
parental unfitness or the existence of exceptional circumstances and demonstrates that the
best interests of the child would be served in the custody of the third-party. We conclude
this additional pleading requirement is necessary to balance the constitutional right a parent
has over the care and custody of their children with the reality that circumstances exist
where the presumption favoring parents is overcome and the child’s best interests are
served in the custody of third-parties. This additional pleading requirement will also aid
the circuit court in determining whether intervention would “unduly delay or prejudice the
adjudication of the rights of the original parties[]” because the hearing judge will be
required to determine, prior to the third-party’s intervention, whether the proposed
intervenor has alleged sufficient facts in its pleading that, if true, would overcome the
constitutional presumption favoring parental custody. See Maryland Rule 2-214(b)(3).
We also conclude that a preliminary hearing is not the appropriate forum for a court
to make an ultimate determination as to whether a parent is unfit or that exceptional
circumstances exist in a third-party custody dispute. McDermott states that “the trial court
must first find” that the parents are either unfit or that extraordinary circumstances exist
“before a trial court should consider” the best interests of the child standard. McDermott,
385 Md. at 374-75, 869 A.2d at 783. By referencing the court charged with making the
fitness or exceptional circumstances determination as the “trial court[,]” McDermott
58
indicates that the assessment should occur at the custody merits hearing, not in a
preliminary proceeding. Additionally, as the Grandparents argue, having a preliminary
proceeding in advance of the custody merits hearing would likely result in redundancy in
the proceedings because facts presented at the preliminary hearing regarding parental
fitness or exceptional circumstances may well be relevant to the court’s determination at
the custody hearing regarding the best interests of the child. Accordingly, we conclude that,
in third-party custody disputes, the circuit court is not required to hold a preliminary or
separate proceeding to determine whether a parent is fit or whether exceptional
circumstances exist prior to the custody merits hearing. The hearing judge may assess the
parents’ fitness and determine whether exceptional circumstances exist at the custody
merits hearing as long as he or she makes that determination prior to assessing the best
interest of the child.
In the case at bar, Petitioner argues that the Grandparents’ motion for permissive
intervention was insufficient because it contained only a general allegation of extraordinary
circumstances and expressed their concern regarding the fitness of the parents. We
disagree. We note Maryland Rule 2-214(c) requires the Grandparents to attach their
proposed Complaint for Custody to their Motion for Permissive Intervention. As noted,
supra, in their proposed Complaint, the Grandparents alleged that: (1) although the Child
resided with Petitioner, the Grandparents “have acted in loco parentis” with the Child since
birth; (2) the Child has spent significant periods of time with the Grandparents – up to five
overnights per week; (3) the Grandparents have actively participated in the Child’s
schooling, paid for the Child’s child care, organized activities and play dates for the Child,
59
and helped take the Child to doctor’s appointments; (4) the Grandparents became
increasingly aware of Petitioner and Father’s abuse of drugs while the Child was in their
care; (5) Petitioner informed the Custody Evaluator that she was not using drugs, but then
subsequently tested positive for marijuana in a mandatory drug test; (6) evidence indicated
Petitioner lied about being coerced into using drugs by Father – as evidenced by her
positive drug test post-separation; and (7) the circuit court sua sponte required both parents
to submit to psychiatric evaluations. We conclude these allegations are sufficient to make
a prima facie showing that either Father or Petitioner or both were unfit and that there may
have been exceptional circumstances that existed in this case. Accordingly, we hold the
circuit court did not err in allowing the Grandparents to intervene in the custody dispute
between Petitioner and Father.
II. Unfitness
a. Appealability
We note that Petitioner did not independently appeal the unfitness issue decided by
the Court of Special Appeals to this Court, but rather, incorporated the argument into her
argument regarding permissive intervention. See supra. We also note that the
Grandparents did not address the circuit court’s unfitness finding in their brief. The brief
exclusively addressed Petitioner’s argument regarding the circuit court’s grant of their
motion to intervene in the custody action. The unfitness issue was, however, raised and
argued before the Court of Special Appeals, which concluded that the circuit court did not
err in finding Petitioner to be an unfit parent, and Petitioner raised the issue in her petition
for a writ of certiorari, albeit, again, it was incorporated into her intervention argument.
60
We also note that both sides argued the issue extensively before us at oral argument on
June 2, 2017. We conclude that the issue of Petitioner’s fitness as a parent was, therefore,
sufficiently preserved for our review. See Maryland Rule 8-131.46
b. The Circuit Court’s Finding That Petitioner Was Unfit
46
Maryland Rule 8-131 states, in relevant part, that
(a) Generally. The issues of jurisdiction of the trial court over the subject
matter and, unless waived under [Maryland] Rule 2-322, over a person
may be raised in and decided by the appellate court whether or not raised
in and decided by the trial court. Ordinarily, the appellate court will not
decide any other issue unless it plainly appears by the record to have been
raised in or decided by the trial court, but the Court may decide such an
issue if necessary or desirable to guide the trial court or to avoid the
expense and delay of another appeal.
(b) In Court of Appeals – Additional Limitations.
(1) Prior Appellate Decision. Unless otherwise provided by the order
granting the writ of certiorari, in reviewing a decision rendered by the
Court of Special Appeals … the Court of Appeals ordinarily will
consider only an issue that has been raised in the petition for certiorari
or any cross-petition and that has been preserved for review by the
Court of Appeals. Whenever an issue raised in a petition for certiorari
or a cross-petition involves, either expressly or implicitly, the
assertion that the trial court committed error, the Court of Appeals
may consider whether the error was harmless or non-prejudicial even
though the matter of harm or prejudice was not raised in the petition
or in a cross-petition.
* * *
Cf. State v. Parker, 334 Md. 576, 596-97, 640 A.2d 1104, 1114 (1994) (concluding that
the use of the term “ordinarily” in Maryland Rule 8-131(b) “implies that this Court
possesses the discretion to consider issues that were not necessarily raised in the petition
or order for a [w]rit of [c]ertiorari.”) (citing State v. Bell, 334 Md. 178, 188, 638 A.2d 107,
113 (1994)), with, Holbrook v. State, 364 Md. 354, 375, 772 A.2d 1240, 1252 (2001)
(declining to consider petitioner’s claim that reckless endangerment convictions should
merge with an arson conviction as a matter of “fundamental fairness” when the argument
was neither raised in petitioner’s petition for writ of certiorari nor was it argued before the
Court of Special Appeals).
61
Petitioner argues that much of the evidence the hearing judge relied on in finding
her unfit came from Father and M, prejudicial witnesses, who testified about events that
occurred several years prior to the parties’ separation and the custody hearing. Petitioner
also contends that the hearing judge failed to explain why, if Petitioner was such an unfit
parent, the Child was described at the hearing as a bright, well-adjusted student throughout
kindergarten, prior to the Grandparents’ intervention. Petitioner acknowledges that she
tested positive for marijuana in one of her drug tests, but contends the hearing court did not
allow her to challenge the accuracy of the result and that, even if she had smoked marijuana,
the General Assembly has decriminalized it. See Criminal Law Article §5-601. Petitioner
also concedes that the Child began exhibiting behavioral problems at the end of his
kindergarten year, but notes that there was no evidence or expert testimony presented at
the custody hearing regarding the cause of the Child’s behavioral difficulties. Petitioner
also avers that, in considering the Crisis Center incident, the hearing judge ignored the
testimony from the school principal and guidance counselor stating that Petitioner
responded promptly to their request to discuss the incident and that she was generally a
responsible and responsive parent. Petitioner contends the hearing judge also made
unsupported conclusions about her emotional attachment to the Child, including his finding
that:
I didn’t hear how she said, you know, I just love to put him to bed at night. I
like to tuck him in. I like to read him a story. We take little walks together. I
like to go through colors with him and numbers with him. He loves to wear
this particular sweatshirt. You didn’t hear any of that. I didn’t see any really
love or total attachment. I mean, this is her flesh and blood, her own son.
Most mothers would give up their lives for their children in a tragedy. A child
fell into a river, they’d dive in. I think in this case, I don’t know what she’d
62
do. She might leisurely walk over and make a call. I don’t know. But what
I’ve seen from the time the child was born, she’s not even acting the way a
babysitter would act. Because if she were the babysitter and she went to
school on the fourth and the teacher told her what happened or daycare
provider, she’d be calling everybody she possibly could. She’d be calling the
mother, she’d be calling the father, she’d be calling the grandparents. Did
you hear – let me tell you what the principal said.
Petitioner also notes that the hearing judge stated that he found Petitioner “to be a
very dishonest witness, and I’ll tell her. She may be a good mother and a lot of good
qualities. They didn’t all come out.” In Petitioner’s view, the hearing judge’s concession
that “[s]he may be a good mother” should have ended the inquiry regarding her fitness as
a parent. Petitioner argues that it is precisely this type of subjective assessment – or judicial
“social engineering” – that the Watkins Court, see supra, was concerned about in refusing
to adopt the “detrimentally affected” test. Petitioner contends that this case demonstrates
why a court’s finding of parental unfitness should be based on objective, rather than
subjective, criteria – such as the specific criteria contained in the Termination of Parental
Rights statute. See Family Law Article (“Fam. Law”) §5-323(d).47
47
Fam. Law §5-323(d) states:
Except as provided in subsection (c) of this section, in ruling on a petition
for guardianship of a child, a juvenile court shall give primary consideration
to the health and safety of the child and consideration to all other factors
needed to determine whether terminating a parent’s rights is in the child’s
best interests, including:
(1) (i) all services offered to the parent before the child’s placement, whether
offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local
department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their
(continued . . .)
63
(. . . continued)
obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances,
condition, or conduct to make it in the child’s best interests for the child
to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and
support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently
unable to care for the child’s immediate and ongoing physical or
psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting
parental adjustment so that the child could be returned to the parent
within an ascertainable time not to exceed 18 months from the date of
placement unless the juvenile court makes a specific finding that it is
in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the
seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother
tested positive for a drug as evidenced by a positive toxicology test’
or
B. upon the birth of the child, the child tested positive for a
drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by
a qualified addictions specialist, as defined in §5-1201 of this
title, or by a physician or psychologist, as defined in the Health
Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United
States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
(continued . . .)
64
We note that determining whether a circuit court erred in finding a biological parent
“unfit” in a third-party custody dispute is an issue of first impression for this Court.
Considering the issue necessarily requires a nuanced understanding of precisely what the
term “unfit” means within the context of Maryland family law. We observe, however, that
our precedent provides no such clear definition. The only decision from this Court that
provides any definition for the word “unfit” in the custody context is In re Rashawn H.,
402 Md. 477, 937 A.2d 177 (2007), a termination of parental rights (“TPR”) case that states
“[i]n a custody case, unfitness means an unfitness to have custody of the child, not an
unfitness to remain the child’s parent[.]” Id. at 498, 937 A.2d at 190 (emphasis in original).
The Rashawn Court’s definition clarifies that an “unfitness” determination in a custody
dispute is distinct from an “unfitness” finding in the TPR context, but does not provide a
clear definition of “unfitness” for our purposes. While Petitioner argues that we should,
(. . . continued)
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime
described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the
child; and
(4) (i) the child’s emotional ties with and feelings towards the child’s parents,
the child’s siblings, and others who may affect the child’s best interests
significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-child relationship;
and
(iv) the likely impact of terminating parental rights on the child’s well-
being.
65
nonetheless, adopt the criteria contained in Fam. Law §5-323(d) to inform our
consideration of “unfitness” in the custody context, the Rashawn Court expressly states,
[t]he deficiencies that may properly lead to a finding of unfitness or
exceptional circumstances in a custody case will not necessarily suffice to
justify a TPR judgment. For one thing, those deficiencies may be temporary
and correctable – sufficiently severe to warrant denying custody or visitation
at a particular point in time, but with the understanding that the custody or
visitation decision is subject to reconsideration upon a showing of changed
circumstances. As noted, however, a judgment terminating parental rights,
once enrolled, is not subject to discretionary reconsideration based merely on
the parent’s changed circumstances.
Id. Thus, although we agree with Petitioner that the criteria for determining whether a
parent is “unfit” in a third-party custody dispute requires clarity, we decline to adopt the
objective criteria contained in Fam. Law §5-323(d). Instead, we look to other jurisdictions
that have previously considered whether a parent is “unfit” in the custody context to
determine the appropriate factors a court must consider.
The most recent set of cases we could locate discussing “unfitness” in the third-
party custody context come from the Supreme Court of Alabama and the Supreme Court
of Mississippi, both decided in 2003. In Ex Parte N.L.R., 863 So. 2d 1066 (Ala. 2003), the
Supreme Court of Alabama considered a case where the maternal grandmother was granted
temporary custody of two minor children after she intervened in the parents’ child support
and visitation litigation seeking custody of the children. Id. at 1066. As relevant to the
case at bar, the Supreme Court of Alabama explained that:
The prima facie right of a natural parent to the custody of his or her child, as
against the right of custody in a nonparent, is grounded in the common law
concept that the primary parental right of custody is in the best interest and
welfare of the child as a matter of law. So strong is this presumption, absent
a showing of voluntary forfeiture of that right, that it can be overcome only
66
by a finding, supported by competent evidence, that the parent seeking
custody is guilty of … misconduct or neglect to a degree which renders that
parent an unfit and improper person to be entrusted with the care and
upbringing of the child in question.”
Id. at 1068-69 (quoting Ex Parte Terry, 494 So. 2d 628, 632 Ala. 1986) (internal quotation
marks omitted) (emphasis added).
In In re Custody of M.A.G., 859 So. 2d 1001 (Miss. 2003), the Supreme Court of
Mississippi considered a case where a child was placed in the custody of third-parties after
the child’s father was arrested for the murder of the child’s mother. Id. at 1003. All charges
against the father were subsequently dropped, but the third-party custodians, nonetheless,
sought permanent custody of the child, alleging that the father was an unfit parent. Id. At
the custody trial, the court found that the father was an unfit parent because the testimony
reflected that: (1) the father abused drugs and alcohol before he was incarcerated, and
continued to do so after he was released from prison; (2) he had abused the mother; (3) he
provided little moral leadership to his family; (4) he was convicted of public drunkenness
after he was released from prison; (6) he bathed with his girlfriend while the child was in
the house; and (7) the child witnessed the father’s nephew having sex with his girlfriend.
Id. In considering the trial court’s unfitness finding, the Supreme Court of Mississippi
explained that “this Court has ruled that unfitness may be shown by[:] (1) abandoning the
child; (2) behaving so immorally as to be detrimental to the child; or (3) being unfit
mentally or otherwise to have custody of the child.” Id. at 1004 (quoting Carter v. Taylor,
611 So. 2d 874, 876 (Miss. 1992); see also Westbrook v. Oglesbee, 606 So. 2d 1142, 1144-
67
45 (stating the same). The Court then considered the merits of the father’s challenge of the
finding of unfitness, and concluded the trial court did not err because
[t]here was substantial evidence of drug and alcohol abuse- at times in the
presence of [the child]. There were errors of judgment by [the father] such as
renting a horror movie to watch with his son when the six-year-old [child]
thought [the father] had killed his mother and brother with a baseball bat.
There was evidence of drunken driving by [the father] with [the child] in the
car. [The father] exposed [the child] to sexual situations. [The father]
threatened and abused [the mother]. [The father] was involved in sexual
relationships with married women – once in the presence of her husband –
and was promiscuous. [The father] never reported his live-in girlfriend and
their five-month-old son missing after they were killed.
Id. at 1004.
In a 1994 case decided by the Supreme Court of Oklahoma, the Oklahoma Court
considered the circumstances where the paternal grandmother of a child sought to gain
custody of the child by intervening in the parents’ divorce proceeding. McDonald v.
Wrigley, 870 P.2d 777, 778 (Okla. 1994). The trial court granted temporary custody to the
grandmother, but later dismissed the proceeding for lack of jurisdiction. Id. The
grandmother appealed, and Supreme Court of Oklahoma held that
[i]n order for third persons to deprive a parent of custody of his [or her]
children, some inability on the part of the parent to provide for the child’s
ordinary comfort, intellectual or moral development must be shown.
Evidence of unfitness must be clear and conclusive and the necessity for
depriving the parent of custody must be shown to be imperative. In a divorce
case, the district court may award custody to a third person if both parents
are found to be unfit. If a parent is not found to be unfit, is able to care for
his [or her] children and desires to do so, he [or she] is entitled to custody as
against others who have no permanent or legal right to custody.
Id. at 779-80 (quoting Haralson v. Haralson, 595 P.2d 443, 445 (Okla. 1979)) (footnotes
omitted). The McDonald Court also determined that
68
[t]he [parents’] unfitness may not be demonstrated by a mere comparison
between what is offered by the competing parties, but only by a showing that
the parents cannot reasonably be expected to provide for the child’s ordinary
comfort or intellectual and moral development. Such order must be a product
of a hearing of which the parent had notice with the opportunity to be heard.
The order must include the conditions found by the trial court to constitute
the parental unfitness. This is so that the parent knows what, if corrected,
would amount to a change of condition in the eyes of the court.
Id. at 781 (internal citations omitted). The McDonald Court concluded that all grandparent
custody actions – absent a final termination order pursuant to its version of a termination
of parental rights proceeding – may be considered temporary and that “[d]uring the child’s
minority the doors to the courthouse will remain open to the parent who would show that
the conditions underlying the declaration of unfitness have been corrected.” Id. at 782.
In another decision published in 1994, the Supreme Court of North Carolina
considered a case where adoptive parents filed a lawsuit seeking custody of a minor child
over the child’s biological parents, after the adoptive parents’ initial attempt to adopt the
child was voided by the Supreme Court of North Carolina and the child was subsequently
placed in the custody of the local department of social services that then placed the child
with the adoptive parents. Petersen v. Rogers, 445 S.E.2d 901, 902 (N.C. 1994). At trial,
the court ordered that the child be returned to the biological parents and the court denied
the adoptive parents’ request for custody. Id. On appeal, the Court of Appeals of North
Carolina observed that
[t]he [Supreme Court of North Carolina’s] examination [in Jolly v. Queen,
142 S.E.2d 592 (N.C. 1965)] of the paramount custody right of the mother
of an illegitimate child illustrates the strength of natural parents as against
others: Although a trial court “might find it to be in the best interest of a
legitimate child of poor but honest, industrious parents” that his [or her]
custody be given to a more affluent person, such a finding “could not confer
69
a right as against such parents who had not abandoned their child, even
though they had permitted him to spend much time” with the more affluent
person. Instead, “parents’ paramount right to custody would yield only to a
finding that they were unfit custodians because of bad character or other,
special circumstances. So it is with the paramount right of an illegitimate’s
mother.”
Id. at 904 (quoting Jolly, 142 S.E.2d at 596). The Petersen Court concluded that because
there was no finding that the biological parents had neglected their child’s welfare in any
way, their “paramount right to custody” of the child prevailed. Id. at 905.
In an Arkansas case that was decided in 1990, the Supreme Court of Arkansas
considered the result where a custody dispute arose between the child’s biological mother
and the child’s maternal grandmother. Schuh v. Roberson, 788 S.W.2d 740, 740 (Ark.
1990).48 At the custody trial, the juvenile court ultimately granted custody in favor of the
maternal grandmother. On appeal, the Schuh Court determined that
[c]ourts are very reluctant to take from the natural parents the custody of their
child, and will not do so unless the parents have manifested such indifference
to its welfare as indicates a lack of intention to discharge the duties imposed
by the laws of nature and of the state to their offspring suitable to their station
in life.
48
In Schuh, the court originally awarded temporary custody of the child to the
child’s biological mother in the mother’s divorce proceeding. Schuh, 788 S.W.2d at 740.
Before the custody was finalized, however, the maternal grandmother intervened in the
case and was awarded temporary custody. Id. Shortly thereafter, the court discovered that
the child was illegitimate and the court subsequently vacated its custody order. Id. at 741.
The mother brought new proceedings seeking to establish paternity and obtain custody of
the child, and the maternal grandmother again intervened. Id. After procedural delays that
reformulated the custody process in Arkansan courts, the case was transferred from the
county court to a juvenile judge and, after a hearing, permanent custody of the child was
awarded to the maternal grandmother. Id.
70
Id. at 741 (quoting Parks v. Crowley, 253 S.W.2d 561, 563 (Ark. 1952)).49 The Schuh
Court subsequently remanded the case to allow the hearing judge to consider the issue of
the mother’s fitness as a parent. Id.
In a 1981 case decided by the Supreme Court of Georgia, the Georgia Court
considered a case where the father of two minor children brought an action against the
children’s’ paternal aunt who had been granted temporary custody and the children’s
biological mother who was the legal custodian of the children. Carvalho v. Lewis, 274
S.E.2d 471, 472 (Ga. 1981). In vacating the lower court’s grant of custody to the paternal
aunt, the Carvalho Court first acknowledged that in custody disputes between a parent and
49
In Parks, the Arkansas Court considered a case where the paternal grandparents
of a child refused to return the child to the custody of the biological mother due to concerns
that the child was endangered in the mother’s home. 253 S.W.2d at 562. The mother sought
custody, and the trial court subsequently granted custody to the paternal grandparents due
to its finding that the mother “was addicted to drink and frequent profanity to such an extent
as to make her unfit to have the custody of the child.” Id. On appeal, the Parks Court
determined that
[i]n considering this case, we do not lose sight of the fact that we are dealing
with the welfare of a little girl of the tender age of five years when obviously
she is most in need of the loving care of her real mother unless the mother is
so depraved morally or otherwise as would render her unfit to have her child.
While [the third-parties] have had her custody for most of her life, however,
when the real mother shows that she is entitled to [c]ustody, we must know,
human nature being what it is, that the love and attachment of this little girl
for her grandparents (appellees) cannot have become so deep rooted and
attached that it could not, within a very short time, be transferred to her real
mother by proper treatment, love and care, if given the opportunity.
Id. at 563. The Parks Court ultimately concluded that, because the mother had quit
drinking, joined a church, and her conduct had improved since the initial custody
determination, the previous custody order should be modified and the custody of the child
was to be transferred to her. See id. at 563-64.
71
a third-party, the trial court must first determine whether the parent is, inter alia, unfit
pursuant to case law established by the Supreme Court of Georgia. Id. (citing Perkins v.
Courson, 135 S.E.2d 388 (1964)). The Cavalho Court then explained that
[a] finding of unfitness must center on the parent alone, that is, can the parent
provide for the child sufficiently so that the government is not forced to step
in and separate the child from a parent. A court is not allowed to terminate a
parent’s natural right because it has determined that the child might have
better financial, educational, or even moral advantages elsewhere.
* * *
The ability of a parent to raise his or her child may not be compared to the
superior fitness of a third person. That ability must be examined in a
scrutinous, abstract light. Only in custody disputes between parents may a
court determine which party is more suitable to be awarded custody, this
being the so-called “best interest of the child” test.
Id. at 472 (internal citations omitted).
In 1971, the Supreme Court of Minnesota considered a case where a biological
mother filed a lawsuit seeking to regain custody of her child who she and the father had
previously placed in the custody of the child’s paternal grandparents due to their marital
difficulties, and who had remained in the custody of the paternal grandparents after the
parents divorced. Wallin v. Wallin, 187 N.W.2d 627, 628-29 (Minn. 1971). The Wallin
Court observed that in third-party custody disputes,
it is fundamental that parents have a natural right to the child and in order to
deprive a parent of custody in favor of a third person there must be grave
reasons shown. Factors to establish such grave reasons would be neglect,
abandonment, incapacity, moral delinquency, instability of character, or
inability to furnish the child with needed care.
Id. at 630 (quoting State ex rel. Jaroszewksi v. Prestidge, 81 N.W.2d 705, 710 (Minn.
1957)) (internal citations omitted). The Wallin Court then concluded that
72
[t]hus, it would seem to be a fundamental rule of law that, all things being
equal, as against a third person, a natural mother would be entitled as a matter
of law to custody of her minor child unless there has been established on the
mother’s part neglect, abandonment, incapacity, moral delinquency,
instability of character, or inability to furnish the child with needed care[.]
Id. (internal citations omitted). The Wallin Court ultimately remanded the case to the lower
court for further proceedings because it concluded that the record before it was inadequate
to determine whether the district court abused its discretion in granting custody of the child
to the paternal grandparents based solely on the ground that the a transfer of custody might
be disruptive to the child. Id. at 631-32.
In addition to the third-party custody cases described, supra, we also located several
other cases that, while not third-party custody cases, provide useful precedent for
understanding how “unfitness” has been defined in the custody context. In a 2007 decision,
the Supreme Court of Arkansas considered a case where grandparents of a minor child filed
a petition for guardianship after refusing to return the child to his biological mother. Devine
v. Martens, 263 S.W.3d 515, 518-19 (Ark. 2007), overruled by Fletcher v. Scorza, 359
S.W.3d 413 (2010).50 After a hearing, the circuit court awarded permanent guardianship
of the child to the grandparents, finding, inter alia, that the parents were unfit to have
custody, the grandparents were qualified for guardianship, and it would be in the best
50
In Fletcher, the Supreme Court of Arkansas held that “[t]o the extent that any of
our prior cases suggest a standard of fitness or unfitness in guardianship proceedings
involving the statutory natural-parent preference, we overrule them.” 359 S.W.3d at 421.
We acknowledge that the Arkansas Court’s decision in Fletcher overrules the holding in
Devine, but nonetheless find the Devine Court’s discussion of “unfitness” in the
guardianship context useful to our inquiry, even if the Devine Court’s ultimate holding was
subsequently overruled.
73
interest of the child for guardianship to be granted to the grandparents. Id. at 519. In
finding that the mother was unfit, the circuit court determined that: (1) she repeatedly
turned responsibility of the child over to the grandparents; (2) she had not provided a stable
home environment; (3) the child was exposed to inappropriate “art” inside the home,
including nude pictures of the mother; (4) the mother was guilty of educational neglect due
to the child’s excessive absences and tardies from school that resulted in criminal action;
(5) the mother had an internet presence of herself that would be inappropriate for young
children to see; (6) the mother did not consider the thought that the child and his friend
might see her pictures on the internet; and (7) the mother provided a home environment
that was dirty and smelled of urine, resulting in the child developing bladder and bowel
problems. Id.
On appeal, and as relevant to the case at bar, the Devine Court observed that
Courts are very reluctant to take from the natural parents the custody of their
child, and will not do so unless the parents have manifested such indifference
to its welfare as indicates a lack of intention to discharge the duties imposed
by the laws of nature and of the state to their offspring suitable to their station
in life. When, however, the natural parents so far fail to discharge these
obligations as to manifest an abandonment of the child and the renunciation
of their duties to it, then becomes the policy of the law to induce some good
man or woman to take the waif into the bosom of their home[.]
Id. at 524 (quoting Lloyd v. Butts, 37 S.W.3d 601, 608 (2001) (emphasis in original). The
Devine Court determined that the circuit court erred in finding that the mother was unfit
because it concluded the issues presented at the guardianship proceeding were more akin
to issues that arise in dependency-neglect cases and that, in such cases, the Arkansas state
policy
74
strongly favors reunification with the natural parents above all other
alternatives for dependent-neglected juveniles. Parents whose children are
adjudicated dependent-neglected are generally offered family services and
an opportunity to prove they have made improvements that are in keeping
with their children’s best interests. Additionally, parents who make
improvements are almost without exception reunited with their children.
Id. (citing Arkansas Code, Ann., §§9-27-102 – 9-28-1003 (Repl. 2002 & Supp. 2007)).
After reviewing the record, the Devine Court concluded that
it is clear that [the mother] took significant action toward rectifying any
issues that would keep her from retaining custody of her son. These are the
very types of improvements that parents are encouraged to make in the best
interests of their child or children, and [the mother] should not be disparaged
for her efforts to improve her home and her parenting skills.
Id. at 525. In a footnote, the Devine Court also observed that
it is clear to us that the circuit court based its judgment as to [the mother’s]
guidance of [the child], in part, upon its own morals and viewpoint of how a
child should be raised. This court has made it clear that the state cannot
interfere with a natural parents’ right to custody simply to better the moral
and temporal welfare of the child as against an unoffending parent.
Id. at 525, n. 5 (citing Payne v. Jones, 415 S.W.2d 57 (1967)). The Devine Court also
observed that
[t]his state’s courts should not be in the business of permanently removing
children from their parents’ custody simply because the parents have
exercised poor judgment in caring for their children. Just as the Arkansas
Juvenile Code recognizes the efforts of parents in dependency-neglect
actions to improve their homes and parenting skills, we should encourage
and recognize such improvements by parents in guardianship actions.
Frankly, it is not in a child’s best interests to take custody from a natural
parent who has rectified all issues relating to his or her fitness, and grant
custody to a third party, such as that child’s grandparents.
Id. at 526.
75
In 2003, the Supreme Court of Kentucky considered the circumstances where
biological parents who had previously signed consents for their child to be adopted
subsequently revoked their consents after the contractual time in which to do so had passed,
but prior to the voluntary termination of rights proceeding. Moore v. Asente, 110 S.W.3d
336, 339 (Ken. 2003). After their revocation, the biological parents filed an independent
custody action seeking to regain custody of their child from the adoptive parents who, at
the time of the filing, had physical custody of the child. Id. The circuit court determined
that the parents’ consents to adoption were invalid, for reasons not relevant to the case at
bar, and, therefore, granted custody of the child to the biological parents concluding that
the adoptive parents lacked jurisdiction to contest custody. Id. On appeal, the Supreme
Court of Kentucky explained that a nonparent seeking custody of a child “must first show
by clear and convincing evidence that the parent has engaged in conduct similar to activity
that could result in the termination of parental rights by the state.” Id. at 360 (footnote
omitted). In a footnote following its explanation, the Moore Court observed that
[t]he type of evidence that is necessary to show unfitness on the part of the
mother in a custody battle with a third party is: (1) evidence of inflicting or
allowing to be inflicted physical injury, emotional harm or sexual abuse; (2)
moral delinquency; (3) abandonment; (4) emotional or mental illness; and (5)
failure, for reasons other than poverty alone, to provide essential care for the
children.
Id. at 360, n.100 (quoting David v. Collinsworth, 771 S.W.2d 329, 330 (1989)) (other
citation omitted). Ultimately, the Moore Court determined that, due to the specific factual
circumstances in that case that are not relevant to the unfitness issue, the parents had waived
76
their superior right to custody and the Court remanded the case to the trial court to
determine custody based on the best interests of the child standard. Id. at 361-62.
In Gomez v. Savage, 580 N.W.2d 523 (Neb. 1998), the Supreme Court of Nebraska
considered a case where a father filed a habeas corpus action seeking to obtain custody of
two of his three children from the children’s adoptive parents after the mother had
previously placed the children up for adoption without his consent, which the Supreme
Court subsequently vacated,51 and after the mother subsequently revoked her
relinquishment of parental rights and gave the adoptive parents power of attorney over the
children and allowed the children to continue living with the adoptive parents. Id. at 528-
29. At the habeas proceeding, the circuit court determined that the father was unfit because
he: (1) had a history of unemployment, alcohol abuse, (2) had repeated prior contacts with
law enforcement, and (3) repeatedly failed to provide parental support.52 Id. at 530. The
51
The Gomez Court noted that it reviewed the trial court’s decision to allow the
adoption to proceed, even without the father’s consent, and held that because the father had
not given his consent the court lacked jurisdiction to hear the adoption proceedings. See
In re Adoption of Kassandra B. & Nicholas B., 540 N.W.2d 554 (1995).
52
The Gomez Court noted that testimony presented at the trial reflected that: (1)
four days prior to the hearing the father had been charged with assault and battery,
disorderly conduct, and possession of a controlled substance arising out of a bar fight; (2)
the father had twenty-three previous contacts with law enforcement, including convictions
for shoplifting, giving false information, trespassing, failure to appear, obstruction of
justice, destruction of property, fraudulent obtaining of benefits, fraud by receipt of
unemployment benefits, and DUI; (4) the father had had his driver’s license had been
revoked in Iowa for six years due to his DUI convictions; (5) the father had assaulted his
wife in front of his stepchildren while the father was intoxicated; (6) the father had a history
of selling drugs, using drugs in the presence of his children, and keeping drugs in the home
while the children were there; (7) the father had a history of unemployment, although he
(continued . . .)
77
circuit court also determined that the adoptive parents had lawful custody of the children
due to the power of attorney granted by the mother. Id. at 530. On appeal, the Gomez
Court noted it had previously defined “unfitness” as “‘a personal deficiency or incapacity
which has prevented, or will probably prevent, performance of a reasonable parental
obligation in child rearing and which has caused, or probably will result in, detriment to a
child’s well-being.’” Id. at 533 (quoting Uhing v. Uhing, 488 N.W.2d 366, 372 (1992)).
The Gomez Court also explained that
[i]f the evidence of unfitness is insufficient to justify termination of parental
rights in an action maintained under the Nebraska Juvenile Code,[53] similarly
deficient evidence of parental unfitness in a habeas corpus proceeding
prevents a court from granting child custody to one who is a stranger to the
parent-child relationship.
Id. (quoting Uhing, 488 N.W.2d at 373). The Gomez Court also noted that
(. . . continued)
testified at the trial that he had recently secured employment at a roofing company; (8) the
father does not have a checking or savings account and was delinquent in his child support
payments for one of the children. 580 N.W.2d at 530.
53
Nebraska’s Revised Statute, Ann. §43-292 (Cum. Supp. 1996) states, in relevant
part, that:
The court may terminate all parental rights between the parents or the mother
of a juvenile born out of wedlock and such juvenile when the court finds such
action to be in the best interests of the juvenile and it appears by the evidence
that one or more of the following conditions exists:
* * *
(4) The parents are unfit by reason of debauchery, habitual use of
intoxicating liquor or narcotic drugs, or repeated lewd and lascivious
behavior, which conduct is found by the court to be seriously
detrimental to the health, morals, or well-being of the juvenile[.]
* * *
78
[a] court cannot deprive a parent of the custody of a child merely because the
parent has limited resources or financial problems, or because the parent’s
lifestyle is different or unusual. The fact that a person outside the immediate
family relationship may be able to provide greater or better financial care or
assistance for a child than can a parent is an insufficient basis to deprive a
parent of the right to child custody.
Id. at 533-34 (internal citations omitted). Ultimately, the Gomez Court determined the trial
court did not err in finding the father was unfit because it concluded that
[t]he fact that [the father] claims that he made some last minute
improvements does little in light of his past behavior to show that he is now
capable of fulfilling his duties as a parent. In the instant case, the record
clearly shows that [the father] has an extensive criminal record, has left his
children in the past without providing support, has difficulty maintaining
employment or refuses to maintain employment, and has difficulties
involving alcohol and drug use.
Id. at 534.
In another petition for guardianship case decided in 1986, the Supreme Court of
Minnesota reviewed a trial court’s decision to grant guardianship to the children’s
grandfather over the biological father. Matter of Welfare of P.L.C., 384 N.W.2d 222, 224-
25 (Minn. 1986). The P.L.C. Court observed that
The trial court relied on several reasons for its decision: the father’s drinking,
his living situation and church attendance with the children, evidence of
physical abuse, and the need for continuity in care of the children. The court
made the following finding of parental unfitness: ‘That the risk to said girls
at their father’s home and the consequent danger, and their need for
continuity and stability is such that said [father] is not fit to have either the
guardianship or physical custody of said girls[.]’
Id. at 226. In reviewing the trial court’s finding of unfitness, the P.L.C. Court noted that
“[t]he grandparents had the burden of presenting evidence to overcome the presumption of
parental unfitness. They had to show ‘grave reasons’ for preferring them to a natural parent
79
for custody of the children. These reasons approach those required for the termination of
parental rights.” Id. at 225 (citations omitted). The Court also noted that to find parental
unfitness in a termination of parental rights proceeding, “there must be a ‘consistent pattern
of specific conduct before the child or specific conditions directly relating to the parent and
child relationship either of which are determined by the court to be permanently detrimental
to the physical or mental health of the child[.]” Id. at 227 (quoting Minn. Stat.
§260.221(b)(4) (1984)).
The P.L.C. Court concluded that the trial court abused its discretion in finding that
the father was unfit because it failed to “accord [the father] the presumption of parental
fitness.” Id. at 226. The P.L.C Court determined that, although the trial court found that
the father had a drinking problem, there was “no finding or evidence to support a finding
that [the father’s] drinking, whether diagnosed as alcoholism or not, affects his ability to
care for the children.” Id. The P.L.C Court also noted that there was no evidence regarding
the degree of force, or evidence of resulting injury due to the father’s discipline and,
therefore, was not a “grave reason” justifying denial of his right to custody. Id. (citations
omitted). The P.L.C Court also determined that the father’s living arrangement and his
churchgoing habits were not shown to be detrimental to the children, and concluded that
“[c]onsideration of such factors, at least without further evidence, represents only ‘ad hoc
judgments on the beliefs and lifestyles … of the proposed custodian.’” Id. at 227 (quoting
Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985)). Finally, the P.L.C. Court
acknowledged that the trial court found evidence of spousal abuse but concluded that “there
was no showing that any such abuse was directly related to the parent-child relationship or
80
permanently detrimental to the children, who were found by the trial court to have a good
relationship with their father.” Id.
In a 1984 case decided by the Supreme Court of Oklahoma, the Oklahoma Court
considered the circumstances where a father filed a habeas corpus action seeking to regain
custody of his daughter after the maternal grandparents, who had retained custody of the
child since the mother’s death, filed a petition to adopt the child. Application of Grover,
681 P.2d 81, 82 (Okla. 1984). The trial court acknowledged that the father could provide
a fit and proper home to raise the child, but ultimately concluded that it was in the best
interests of the child to remain in the custody of the grandparents. Id. On appeal, the
Grover Court recognized that
[t]o justify the courts in depriving parents of the care and custody of their
own children, the parents special unfitness must be shown by evidence that
is clear and conclusive and sufficient to make it appear that the necessity for
doing so is imperative. Ordinarily and generally, it must be established that
their condition in life, character and habits are such that provision for the
childrens’ ordinary comfort, their intellectual and moral development cannot
reasonably be expected at their hands.
Id. (quoting Gibson v. Dorris, 386 P.2d 186, 188 (1963)) (quotation marks omitted).
Ultimately, the Grover Court concluded that because the trial court found the father was a
fit parent, and that finding was supported by the record, “the preference accorded by law
to the natural parent to the custody of his or her child determines that the best interests of
the child will be served by awarding custody to the natural parent.” Id. at 83.
In Perkins, a case relied on by the Cavalho Court, see supra, the Supreme Court of
Georgia considered a case where a father filed a habeas corpus action against the maternal
grandparents seeking to regain custody of his child who had previously been placed in their
81
custody. Perkins v. Courson, 135 S.E.2d 388, 389 (Ga. 1964), superseded by statute as
stated in, Clark v. Wade, 544 S.E.2d 99 (Ga. 2001).54 As relevant to the case at bar, the
Perkins Court observed that
The issue of fitness is much broader than whether a parent has voluntarily
contracted away his [or her] right, or consented to an adoption, or failed to
provide necessaries, or abandoned, or consented to the child’s receiving the
proceeds of his [or her] own labor, or consented to its marriage, or treated it
cruelly … or whether, because of cruel treatment, the ordinary has appointed
a guardian for the child … or whether, because a child under 12 years of age
has been found under immoral, obscene or indecent influences, the ordinary
has it committed to an institution[.]
[I]t may be shown, for instance[], that the parent is inflicted either mentally
or physically to the extent that he [or she] cannot provide any care for the
child; that he [or she] suffers from a serious and contagious disease which
would endanger the child; that he [or she h]as criminal tendencies making it
hazardous to expose a child to him [or her]; or that he [or she h]as other such
disqualifications …. Furthermore, it may be shown that, although
completely immoral and degenerate, a parent has had insufficient contact
with the child for the events covered by [Georgia statute] to have occurred.
Award of a child to such an unfit person simply because he [or she] has not
54
In Clark, the Georgia Court acknowledged its prior case law addressing findings
of unfitness in the third-party custody context, but concluded that
In enacting [Georgia Code §19-7-1], the legislature changed the law
governing parent-third party custody disputes and added an additional way
by which parental power could be lost. The Georgia General Assembly
intended to replace the parental unfitness standard with the best-interest-of-
the-child standard. Adoption of this new standard shifts the trial court’s
inquiry solely from the current fitness of the biological parent to raise the
child to include consideration of the child’s interest in a safe, secure
environment that promotes his or her physical, mental and emotional
development. In considering what is in the best interest of the child, the trial
court may consider the child’s historical relationship with the parent, the
child’s relationship with the third-party custodian, and the child’s special
medical, emotional, or educational needs.
544 S.E.2d at 104 (internal footnotes omitted).
82
lost his [or her] right to custody by one of the modes of [the Georgia statute]
would be contrary to law and reason.
Id. at 396.55
From these cases, we conclude certain factors emerge that are relevant to a hearing
court’s inquiry into whether a parent is unfit sufficient to overcome the parental
presumption in a third-party custody dispute. We conclude that a court, in determining
whether a parent is unfit, may consider whether: (1) the parent has neglected the child by
manifesting such indifference to the child’s welfare that it reflects a lack of intent or an
inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3)
there is evidence that the parent inflicted or allowed another person to inflict physical or
mental injury on the child, including, but not limited to physical, sexual, or emotional
abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental
impact on the parent’s ability to care and provide for the child; (5) the parent otherwise
demonstrates a renunciation of his or her duties to care and provide for the child; and (6)
the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.
Addressing the second factor, we conclude that “neglect” for the purposes of a finding of
unfitness means that the parent is either unable or unwilling to provide for the child’s
ordinary comfort or for the child’s intellectual and moral development.
We acknowledge that “due to the vagaries of human nature and the infinite variety
of people’s actions, no two sets of facts and circumstances in child custody disputes are
55
The Code sections referenced by the Perkins Court are Georgia Code, §§74-108,
74-109, and 74-110.
83
alike.” Hoffman, 280 Md. at 187, 372 A.2d at 591. Accordingly, we hold that the factors
enumerated above are not the exclusive criteria by which a court must rely to determine
whether a parent is unfit, but should, nonetheless, serve as a guide for the court in making
its findings. Additionally, although several of the cases we cited, supra, conclude that
parental unfitness in a third-party custody dispute must be demonstrated by clear and
convincing evidence, our precedent establishes that such evidence may be shown by a mere
preponderance of the evidence. Cf. In re Rashawn, 402 Md. at 499, 937 A.2d at 190
(observing that the “preponderance standard” applies in custody cases), with Moore, 110
S.W.3d at 359 (“One exception to the parent’s superior right to custody arises if the parent
is shown to be ‘unfit’ by clear and convincing evidence.”); McDonald, 870 P.2d at 781
(“[t]o obtain custody in a divorce proceeding, even on a temporary basis as is sought here,
over the objection of a parent, a grandparent must show the parents’ unfitness by evidence
that is clear and conclusive, and makes the necessity for doing so appear imperative.”)
(citation omitted); Gomez, 580 N.W.2d at 534 (concluding that the cumulative effect of the
father’s behavior “provides clear and convincing evidence that he is unfit to have custody
of the children.”); Wallin, 187 N.W.2d at 629 (“a mother is entitled to the custody of her
children unless it clearly appears that she is unfit or has abandoned her right to custody[.]”);
Perkins, 135 S.E.2d at 393 (“in order to divest him of this right upon the ground of unfitness
for the trust, the proof brought to show the alleged unfitness should be clear and
convincing.”) (internal quotation marks omitted).
We also note that even if a parent is found unfit and a court grants custody to a third-
party based on its finding that it is in the child’s best interest to be placed in the third-
84
party’s custody, a parent is not foreclosed from seeking to regain custody of his or her child
in the future upon a showing of changed circumstances. See In re Rashawn, 402 Md. at
496, 937 A.2d at 188 (observing that custody and visitation orders are subject to
reconsideration “upon a showing of changed circumstances on the parent’s part.”).
Turning to the case at bar, we note that, in concluding that Petitioner was unfit, the
hearing court found that: (1) Petitioner repeatedly lied in her testimony; (2) Petitioner did
not do the things the BIA told her to do; (3) Petitioner took drugs voluntarily, had not
stopped, and would likely continue to take drugs; (4) Petitioner’s alleged diagnosis of DID
was concerning regardless of whether Petitioner actually had the disorder or not; (5)
Petitioner’s inability to see the Child naked in the shower was “[w]eird, odd, bizarre, [and]
troubling[;]” (6) the Ks’ moving into the marital home created a chaotic atmosphere that
the hearing judge assumed would probably have made the BIA sick had she walked into
the home; (7) Petitioner was selfish for not allowing the Child to go to Mississippi with his
Grandparents during the summer in 2014; (8) Petitioner’s handling of the Crisis Center
referral was inappropriate; (9) Petitioner had failed to make adjustments to address the
Child’s needs, including the hearing judge’s disbelief that Petitioner had adjusted her work
schedule; and (10) Petitioner repeatedly made excuses for everything in her life, including
the drug use and the polyamorous sexual activities. Although the hearing judge’s findings
implicate several of the factors we discussed, supra, upon closer examination of the hearing
judge’s findings, we conclude that the hearing judge repeatedly made findings that were
not supported by the evidence presented at the hearing and were, therefore, erroneous.
85
Accordingly, because the hearing judge relied on erroneous findings in concluding that
Petitioner was an unfit parent he, thereby, abused his discretion.
We conclude that the hearing judge did not err in finding that Petitioner repeatedly
lied in her testimony because evidence in the record supported the hearing judge’s
determination that she lied about: (1) her drug use; (2) being forced to have a sexual
relationship with M; (3) taking the Child to school on September 8, 2014; and (4) lying to
the BIA. We hold, however, that this finding is only relevant in assessing the veracity of
Petitioner’s testimony in contrast to other witnesses, and that the hearing judge erred to the
extent that he relied on Petitioner’s untruths as evidence that she was an unfit parent.
We agree with the hearing judge that evidence was presented at the hearing
indicating that Petitioner did not do all the things requested of her by the BIA. The record
reflects that the BIA requested that Petitioner and Father contact the National Family
Resiliency Center (“NFRC”) to obtain psychiatric care for the Child in July 2014, but
Petitioner did not contact the NFRC until August 28, 2014 and Petitioner subsequently
failed to take the Child to an appointment at the NFRC on September 9, 2014. See supra
n. 34. Although Petitioner’s failure to comply with the BIA’s requests were concerning,
the hearing judge’s finding ignored the fact that Petitioner was independently seeking
psychiatric care for the Child, which was corroborated by the testimony of her therapist.
Thus, while Petitioner did not comply with the specific actions the BIA wanted her to take,
she did comply with the intent underlying the BIA’s requests – finding psychiatric care for
the Child.
86
In regard to his third finding, the hearing judge found that Petitioner voluntarily took
drugs based on Father sending her research on new drugs for them to take, and the judge
concluded that finding new drugs and new ways to get high or hallucinate was a hobby of
both Petitioner’s and Father’s. We agree that the record indicates that Petitioner voluntarily
took drugs with Father and M during her marriage to Father and that substantial evidence
presented at the hearing indicated that both Petitioner and Father were interested in finding
and taking a variety of drugs. We note, however, that there was no evidence presented at
the hearing regarding Petitioner’s use of drugs, other than marijuana, after she separated
from Father in May 2013 – over a year prior to the custody hearing. Additionally, there
was no evidence presented at the hearing that the Child was aware of the drug use or that
Petitioner’s drug use detrimentally impacted the Child. Thus, we conclude the hearing
judge erred in the weight he gave Father and M’s testimony regarding Petitioner’s drug use
when it was not corroborated by more contemporaneous evidence, aside from one positive
drug test for marijuana, and no evidence was presented indicating that Petitioner’s drug use
had a detrimental impact on the Child or that he was even aware that Petitioner used drugs.
We conclude the hearing judge did not err in finding that, regardless of whether
Petitioner was actually diagnosed with DID, there was sufficient evidence in the record to
indicate that she was, at various points throughout her life, acting as though she did.
Pretending to suffer from a serious mental illness, itself, signals that the parent may suffer
from some other emotional or mental illness and evidence presented at the hearing
indicated that Petitioner’s alter ego “Morgan” disliked the Child and expressed an interest
in harming the Child. We acknowledge that Petitioner testified at the hearing that Morgan
87
was not an alter ego, but rather a nickname she had been given by friends, and that Father
and M were the only witnesses who testified as to the existence of Petitioner’s alleged alter
egos. We hold that it was within the hearing judge’s discretion to weigh the credibility of
the witnesses testifying in regard to Petitioner’s alleged DID and he did not err in
expressing concern regarding the evidence supporting the possibility that Petitioner was
pretending to suffer from a serious mental illness. See supra n.4.
We conclude that the hearing judge erred in finding that Petitioner’s alleged
inability to see the Child naked or in the shower was “[w]eird, odd, bizarre, [and]
troubling[.]” We note that the only witnesses who testified that Petitioner could not see
the Child naked or in the shower were Father and M – witnesses who had not lived in the
marital house with Petitioner after June 2013. Thus, their knowledge of Petitioner’s ability
to regularly care and provide for the Child, including seeing him naked or in the shower,
was limited. Additionally, there was no evidence presented by any other witness who had
regular contact with the Child indicating that the Child was unclean, unhealthy, or that
there were any other indications that Petitioner was not providing for the Child’s ordinary
care.
We also find very little evidence in the record substantiating the hearing judge’s
findings that the Ks living in the marital home created chaos. The only evidence presented
at the hearing regarding the Ks was that: (1) they moved into the marital home in July 2014
with several dogs and between fifteen and twenty-five guinea pigs; (2) the Ks brought their
biological daughter with them and the Child referred to the Ks daughter as his sister; and
(3) M asserted that she had heard in prior conversations with Petitioner and Father that the
88
Ks were hoarders, but acknowledged she did not know about the cleanliness of the marital
home after the Ks moved in. Despite this dearth of evidence, the hearing judge made
several findings based purely on his own suppositions regarding the atmosphere of the
marital home once the Ks moved in. Specifically, the hearing judge found that the marital
home was “about as chaotic as possible” and that he understood why “[Petitioner] didn’t
want the [BIA], to see the inside of that house. [The BIA] probably would have got sick if
she had walked in there. And that’s where you’re raising a child and two girls and a little
boy?” Neither of these findings made by the hearing judge were supported by the record.
No evidence was presented regarding why the BIA did not enter the marital home and there
was no evidence discussing the cleanliness of the home, aside from the acknowledgement
that multiple animals were present. Additionally, nothing in the record indicated that
anyone had become ill due to the conditions inside the marital home. Accordingly, the
hearing judge erred in the findings he made regarding the atmosphere and cleanliness of
the marital home while the Ks were living there.
The only factual basis for the hearing judge’s finding that Petitioner was selfish was
when she refused to allow the Child to take a trip to Mississippi with his Grandparents
during his spring break in 2014. We note that Petitioner allowed the Child to go to the
Outer Banks with his Grandparents during the summer of 2014, and there were multiple
occasions over the years where the Child was allowed to go on both day-trips and vacations
with his Grandparents. We also note that, at the time Petitioner refused to allow the Child
to go to Mississippi with the Grandparents, she was the custodial parent of the Child, and
as we have repeatedly held, “Grandparents … do not enjoy a constitutionally recognized
89
liberty interest in visitation with their grandchildren. Rather, whatever right they may have
to such visitation is solely of statutory origin implemented through judicial order.” Koshko
v. Haining, 398 Md. 404, 423, 921 A.2d 171, 182 (2007). Because the visitation order only
specifies that the Grandparents were entitled to visitation with the Child on Tuesdays and
Thursdays from after school until 8 p.m. and every other weekend, Petitioner was fully
within her right as the Child’s parent to refuse to allow the Child to go on the trip to
Mississippi with his Grandparents. The hearing judge, therefore, erred in finding that
Petitioner’s “selfishness” in exercising her constitutional right as a parent supported a
finding of unfitness.
Addressing the hearing judge’s findings regarding the Crisis Center referral, we agree
that the circumstances surrounding the referral reflect that the Child was in major crisis,
and we agree that Petitioner did not handle the Child’s behavioral difficulties that day in
the best possible way. We conclude that the hearing judge’s findings did not accurately
reflect the evidence presented at the hearing, and focused, instead, on his subjective views
of Petitioner. In his findings regarding the Crisis Center referral, the hearing judge
determined that
[the Child’s] in major, major trouble when you’re threatening to blow up a
school and punch a vice principal at the age of six in the stomach? That’s
unheard of. Those are the kids that we send here to the Finan Center to give
them intense examination when they’re in the juvenile delinquent system.
These are kids that probably have little chance of making it, because they
don’t have a family to go back to for the most part.
And yes, on that day any mother worth her salt would tell first of all the
grandparents and do everything she could do to address that problem. My
son did what? We’ve got to address this right now. But to hand him off to the
grandmother and not say anything? That’s just bizarre. What kind of love
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does she have for her son? What kind of interest does she have for the son?
It’s like my shift’s over, somebody else worry about it. I’ll punch out. I’m at
the factory. I didn’t finish what I was supposed to do today, but the next
worker can take over. Grandma can take over. That’s the attitude she
displayed.
* * *
That child is in the mental emergency room or should be right now. And
that’s the way she should be addressing it. And most mothers would try to
move heaven and hell to help their child, to do everything they possibly
could. But not say anything? Now, I assume she went to Children’s
[Hospital]. I don’t know whether she went out to the county for that or not.
But in any event, I don’t think there was significant follow-up. And anything
that she did do in the way of getting some counseling or looking into anything
else – I think she was getting good instruction from her attorney, but
obviously not following other things.
* * *
We acknowledge that Petitioner should have either taken the Child directly to the
Crisis Center or at least communicated the existence of the referral to the Grandmother
before the Grandmother took the Child visitation. We note that evidence presented at the
hearing indicated that the Grandparents and Petitioner were not communicating effectively
at the time of the incident,56 and the school principal intimated in her testimony that
Petitioner may not have felt that she could have taken the Child to the Crisis Center right
away due to the court-ordered visitation on Thursdays from after school to 8 p.m. We also
note that the hearing judge acknowledged in his findings that Petitioner had taken the Child
to Children’s Hospital that night, and evidence in the record indicated that they arrived
56
As an example, we note that after taking the Child to the Crisis Center the
Grandparents and Father did not inform Petitioner that they had done so and they did not
provide her with the completed referral form after they dropped the Child off at the marital
home.
91
there around 9:15 p.m. Thus, while we agree as a general matter that Petitioner could have
handled the Crisis Center referral incident more competently, the record does not support
the hearing judge’s view that she acted “bizarre[ly]” in failing to inform the Grandmother
of the Crisis Center referral or that she was treating her parental responsibilities as a shift
at a factory, where she could “punch out” and have the Grandparents worry about the
Child’s behavior. In contrast to the hearing judge’s assessment, there was ample evidence
in the record reflecting that Petitioner was actively trying to address the Child’s behavioral
difficulties.
We also conclude that the hearing judge erred in finding that Petitioner had failed
to make adjustments to address the Child’s needs. We note that the hearing judge stated
that he did not believe that Petitioner had adjusted her work schedule to accommodate the
Child’s needs, and that the Child was spending ten hours a day at school while in major
crisis. Based on that finding, the hearing judge concluded that “I would like to think a
parent would quit their job if they had to, to deal with that problem with a child. It’s no
different than if that child was in the hospital with two broken arms, two broken legs, or in
a coma. You have to make adjustments.” Even accepting the hearing judge’s finding that
Petitioner was not willing to adjust her work schedule long-term to accommodate the needs
of the Child that fact, alone, is not sufficient for the hearing judge’s conclusion that she
made no adjustments.57 Both the school principal and school guidance counselor testified
57
We note that, although the Child was spending a long period of time at school
some days, the visitation order allowed the Grandparents to pick the Child up from school
at 3:30 p.m. two days a week, and on the other days, Petitioner had enrolled him in before-
and after-care programs.
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that Petitioner was a responsive parent, and would come at the “drop of a hat[]” to help
address the Child’s behavioral difficulties. The record also indicates that Petitioner was
working with her therapist to become a better parent, and she was actively seeking to find
an appropriate therapist for the Child, in addition to her coordination with the school
regarding whether the Child should receive an IEP. We also conclude that it was
inappropriate for the hearing judge to state that a parent who has a child with behavioral
difficulties should quit their job in order to demonstrate he or she is trying to accommodate
the child’s needs, especially in light of the clear evidence in this case that multiple parties
were actively seeking to address the Child’s behavioral issues without Petitioner sacrificing
her employment.
The hearing judge also erred in finding that Petitioner’s “mak[ing] excuses for
everything” supported a conclusion that she was an unfit parent. We note that most of the
hearing judge’s findings in this regard focused on his perceptions of Petitioner and were
only loosely connected to facts from the record. For example, the hearing judge stated that
he had not heard from Petitioner that she liked to put the Child to bed, or read him a story,
or take walks together, or what the Child’s favorite outfits were, and based on these
observations the hearing judge determined that
I didn’t see any really love or total attachment. I mean, this is her flesh and
blood, her own son. Most mothers would give up their lives for their children
in a tragedy. A child fell into a river, they’d dive in. I think in this case, I
don’t know what she’d do. She might leisurely walk over and make a call. I
don’t know. But what I’ve seen from the time this child was born, she’s not
even acting in the way a babysitter would act. Because if she were the
babysitter and she went to school on the fourth and the teacher told her what
happened or daycare provider, she’d be calling everybody she possibly
could. She’d be calling the mother, she’d be calling the father, she’d be
93
calling the grandparents. Did you hear – let me tell you what the principal
said. Schools can’t make you do anything now, because that’s the way the
system is. But certainly when they send a kid to the [C]risis [C]enter, it’s
major. It’s major.
* * *
Although we agree that Petitioner did not testify extensively about her day-to-day life
taking care of the Child, beyond discussing his behavioral difficulties, the record reflects
that she was actively involved in his life and seeking to address his behavioral problems.
Based on the record before us, we conclude that the hearing judge’s characterization that
he did not know whether Petitioner would rescue the Child from drowning if he fell into a
river was unwarranted and was not supported by any evidence in the record indicating that
Petitioner was such a detached parent. In contrast, ample evidence was presented
indicating that Petitioner was actively involved in the Child’s life – choosing the school’s
he would attend, purchasing his school supplies, working with the school to address his
behavioral difficulties, and coordinating visitation with the Grandparents and Father.
Finally, we note that the hearing judge found that
we’ve got [Petitioner] not only taking drugs – and I find that she still takes
them or she’s still ready to take them. And she has no appreciation what
they’ve done. I don’t find any evidence that she feels terrible about doing all
these sex things with her child in the house, because she blames it on her
husband. She blames the drugs on her husband. She blames the sex on her
husband. She blames [M] on her husband. She says this is a – everybody is
making up these personalities. When [the couple’s therapist] testified, who
did everything she could to help [Petitioner] – she even said that she had
personalities.
The hearing judge did not err in finding that Petitioner still took drugs or was likely to take
them because the record reflects that although the parties’ separated in May 2013,
94
Petitioner testified positive for marijuana in January 2014. We conclude, however, the
hearing judge erred in finding that there was no “evidence that [Petitioner] feels terrible
about doing all these sex things with her child in the house[]” to support his determination
that Petitioner was unfit because Petitioner’s sexual relationships were irrelevant to the
unfitness inquiry absent evidence indicating that her sexual relationships were detrimental
to the Child or that the Child was even aware of Petitioner’s sexual activities.
Accordingly, we hold that because many of the findings the hearing judge relied on
in concluding that Petitioner was unfit were erroneous, and because the judge’s non-
erroneous findings were, by themselves, insufficient to satisfy any of the factors we
discussed, supra, we conclude that the hearing judge abused his discretion in finding that
Petitioner was an unfit parent.
III. “Exceptional Circumstances”
As noted, supra, for a court to grant custody of a child to a third-party, the court
must first find that the parents are either unfit or that “extraordinary circumstances” exist.
In the seminal case Ross v. Hoffman, supra, we concluded that there are certain factors
“which may be of probative value” in determining whether “exceptional circumstances”
exist in a third-party custody dispute. 280 Md. at 191, 372 A.2d at 593. Those factors are:
(1) the length of time the child has been away from the biological parent; (2) the age of the
child when care was assumed by the third-party; (3) the possible emotional effect on the
child of a change of custody; (4) the period of time which elapsed before the parent sought
to reclaim the child; (5) the nature and strength of the ties between the child and the third-
party custodian; (6) the intensity and genuineness of the parent’s desire to have the child;
95
and (7) the stability and certainty as to the child’s future in the custody of the parent. See
id.; see also McDermott, 385 Md. at 419, 869 A.2d at 809 (referencing the Hoffman factors
as the “standards and guidelines that generate ‘exceptional circumstances[.]’”). Although
the Hoffman factors serve merely “as a guide” to aid a court in determining whether
exceptional circumstances exist, see Hoffman, 280 Md. at 188, 372 A.2d at 592, we note
that the Hoffman factors served as the analytical framework that the hearing judge relied
on in ultimately finding that exceptional circumstances existed.58 Accordingly, although
we have previously acknowledged the existence of other factors that may be relevant in an
exceptional circumstances inquiry,59 we will confine our review of the hearing judge’s
exceptional circumstances finding to his application of the Hoffman factors to the facts in
this case. Petitioner observes that the decisions relied on by the Hoffman Court to establish
its factor test all involved an award of custody to a third-party in circumstances where those
third-parties had been custodians of the child in question for a long period of time. See id.
at 188-91, 372 A.2d at 592-93.60 Petitioner contends that because, in her view, the
58
We note that, as a general matter, the hearing judge did not err in relying on the
Hoffman factors as the basis for his exceptional circumstances analysis.
59
In addition to the factors enumerated in Hoffman, we have also held that factors
such as “the stability of the child’s current home environment, whether there is an ongoing
family unit, and the child’s physical, mental, and emotional needs” are relevant to an
“exceptional circumstances” analysis. See Sider v. Sider, 334 Md. 512, 532, 639 A.2d
1076, 1086 (1994) (quoting Turner v. Whisted, 327 Md. 106, 116-17, 607 A.2d 935, 940
(1992)); see also Monroe v. Monroe, 329 Md. 758, 775-76, 621 A.2d 898, 906 (1993)
(concluding that the child’s relationship with a third-party is a relevant factor in exceptional
circumstances inquiry).
60
See Piotrowski v. State, 179 Md. 377, 378-79, 383, 18 A.2d 199, 199, 201-02
(continued . . .)
96
“exceptional circumstances” test and the Hoffman factors relate only to situations where a
parent has not retained continuous custody of the child, the hearing judge erred in finding
“exceptional circumstances” existed in this case because Petitioner has always had custody
of the Child. Petitioner also argues that in McDermott, we further refined the establishment
of “extraordinary circumstances” by stating that a third-party must prove “there are
extraordinary circumstances posing serious detriment to the child ….” See McDermott,
385 Md. at 374-75, 869 A.2d at 783. In Petitioner’s view, therefore, an inquiry into whether
“extraordinary circumstances” exist should focus on whether the child would be
endangered by remaining in the custody of the parent.
The Grandparents contend that based on the evidence developed at the custody
hearing, the judge appropriately found that “exceptional circumstances” existed in this
case. The Grandparents note that Petitioner avers that the “exceptional circumstances” test
relates to situations where the child has been in custody of a third-party for a long period
of time, but they argue that the duration a child lives with a third-party is not the exclusive
consideration. The Grandparents observe that in Monroe v. Monroe, 329 Md. 758, 621
(. . . continued)
(1941) (concluding it would be injurious to remove the five-year-old child from her
grandparents’ home where she had been living since she was four months); Dietrich v.
Anderson, 185 Md. 103, 106, 116, 43 A.2d 186, 187, 191 (noting that the child had been
in the care of the foster parents for some five years and expressing concern regarding the
child’s immediate future if custody was given to the biological father); Pick, 199 Md. at
351-53, 86 A.2d at 469 (determining that the third-party custodians had the care and
custody of the child from the time he was less than two years old until he was eleven and
that an abrupt removal of the child could be injurious); Trenton v. Christ, 216 Md. 418,
421-23, 140 A.2d 660, 661-62 (observing that the child had lived with her maternal
grandparents for about six years and concluding there was a genuine risk to the child’s
well-being if custody was changed).
97
A.2d 898 (1993), we stated that “[i]n assessing whether there are exceptional
circumstances, the critical question remains, what is the best interest of the child?” Id. at
775, 621 A.2d at 906. The Grandparents concede that many of the decisions applying
Hoffman place significant emphasis on the duration that a child has been away from a
parent, but argue our conclusion in Monroe makes clear this factor is not the lynchpin of
the analysis. The Grandparents aver the evaluation must also consider the relationship that
exists between the child and the parties as well. See id.
The Grandparents also argue there was considerable evidence established in the case
at bar that reflected both the length and depth of the relationship that existed between the
Grandparents and the Child. The Grandparents note the Custody Evaluator testified that
they were important in the Child’s life – providing him with a safety net and buffer – and
acknowledged the Child spent almost every other weekend with the Grandparents as well
as a significant amount of time during the work week. The Grandparents also note that
they have been extensively involved in the Child’s life since he was born and were involved
in providing daycare, taking him to doctor’s appointments and to school, gifting him
clothing, caring for him during the summers, and taking him on vacations. The
Grandparents also contend Petitioner previously acknowledged she had referred to the
Grandparents as the Child’s “other primary caretakers” and that the Grandparents were
significantly involved in the Child’s medical care, education, and summer activities prior
to her and Father’s separation. The Grandparents also aver that evidence presented at the
custody trial indicated Petitioner’s relationship with the Child was “hot and cold,” she did
not like parenting the Child on her own, and she lacked the ability to discipline the Child.
98
The Grandparents argue there was ample evidence adduced at the hearing to support the
judge’s conclusion that exceptional circumstances existed and that the Grandparents had
filled the role of parents throughout the life of the Child.
In the case at bar, the hearing judge determined that exceptional circumstances
existed based on his findings that: (1) the Child was away from Petitioner and Father
“whenever they were going to do some tripping[;]” (2) the Grandparents assumed care of
the Child “from the time of [his] birth[]” or “[a]t least after [Petitioner] went back to work
after the first year[;]” (3) the relationship between the Child and the Grandparents is
“extremely strong[;]” (4) there was no “intensity and genuineness on the part of
[Petitioner]” in having custody of the Child; and (5) that if the Child remained in the
custody of Petitioner then “[h]e would continue with instability and he would certainly fail.
He’d be in crisis. He’d be out of that public school system probably for good.” We
conclude that the hearing judge misapplied the facts in this case to the Hoffman factors.
While we agree with the Grandparents’ argument that the first Hoffman factor is not
the exclusive consideration a court is required to make in determining whether exceptional
circumstances exist, we hold that the court must first determine that the child at issue has
spent a long period of time away from his or her biological parent before considering the
other Hoffman factors. Cf. McDermott, 385 Md. at 325-26, 869 A.2d at 754 (holding that
duration that father had been separated from child did not constitute “exceptional
circumstances” where father was required to be away for long periods of time due to his
occupation as a merchant marine); with Hoffman, 280 Md. at 192, 372 A.2d at 594
99
(concluding that “practically all” of the Hoffman factors were present and affirming lower
court’s award of custody to third-parties).
We conclude that for the first Hoffman factor to support a finding that exceptional
circumstances exist, the hearing court must find that the child at issue has been away from
his or her biological parent for a “long period of time.” As Petitioner notes, in our other
decisions that have affirmed the existence of exceptional circumstances, the hearing courts
consistently found that the child at issue had spent years in the care of the third-party. See
supra n. 60; see also Hoffman, 280 Md. at 192, 372 A.2d at 594 (finding the first factor
was satisfied where there was a “protracted separation of mother from child, beginning at
the child’s tender age of about four months and lasting for eight and half years[.]”). Given
this precedent, we conclude that the first Hoffman factor’s purpose is to determine whether
the child at issue has been outside the care and control of the biological parent for a
sufficient period of time for a court to conclude that the constructive physical custody of
the child has shifted from the biological parent to a third-party. Stated another way, the
first Hoffman factor seeks to determine whether a biological parent has, in effect,
abandoned his or her child. As we observed in Pick,
[w]here a child has been left by its parents in the care and custody of others,
but the parents reclaim it soon afterwards, and the parents are competent to
have its custody, the court gives more weight to the law of nature, which
recognizes the force of parental affection, than to the probability of benefit
to the child by leaving it where it is, even the probability of advantages which
wealth and social position might bestow. But where the parents surrender
complete custody of an infant for such a long time that its interests and
affections all attach to the person who fill the place of the parents, and the
infant develops into a healthy and happy child, then if the parents seek to
reclaim the child by judicial decree, the court should place the right of the
parents subordinate to the right of those who performed the parental duties,
100
for the ties of companionship strengthen by lapse of time, and upon the
strength of those ties the welfare of the child largely depends.
199 Md. at 351-52, 86 A.2d at 469 (citations omitted).
We conclude that the hearing judge in the case at bar erred in finding that the facts
in the present case were sufficient to find that Petitioner had, in effect, transferred
constructive custody of the Child to the Grandparents based exclusively on the fact that the
Child was not in their care “whenever they were going to do some tripping.” The record
reflects that Petitioner and Father’s tripping schedule was anywhere from every other
weekend to once a month prior to the parties’ separation in May 2013 – not nearly the
duration in time we have held is sufficient to weigh the first Hoffman factor in favor of an
exceptional circumstances finding. Additionally, the record reflects that throughout the
Child’s life, and even more so after Petitioner and Father separated, Petitioner remained
active in the Child’s upbringing and care, including providing shelter to the Child in the
marital home, deciding what school the Child should attend, making doctor’s appointments
for the Child, organizing his transportation to those appointments, responding to the
Child’s behavioral problems at school, and seeking out ways to address those behavioral
difficulties. Accordingly, we conclude the hearing judge erred in determining that the first
Hoffman factor weighed in favor of an exceptional circumstances finding because the
underlying facts that the hearing judge relied on were not sufficient to support his
conclusion that Petitioner had abandoned the Child or transferred physical custody of the
Child to the Grandparents for a long period of time.
101
We also hold that, for the same reasons we concluded that the hearing judge erred
in applying the first Hoffman factor, the hearing judge also erred in finding that the
Grandparents had assumed care for the Child “from the time of [his] birth[]” because that
conclusion ignores the facts in the record reflecting that Petitioner has played an active role
in the care of the Child since he was born.61
We also observe that the hearing judge did not make substantive factual findings
regarding the third and fourth Hoffman factors. Thus, we do not have a clear picture of
how the hearing judge balanced these two factors in ultimately concluding that
“exceptional circumstances” existed in this case.
We agree with the hearing judge’s assessment that the relationship between the
Child and the Grandparents is “extremely strong[.]” The Grandparents are heavily
involved in the Child’s life and spend substantial quality time with the Child that includes
61
In McDermott we noted that
parents should be encouraged in time of need to look for help in caring for
their children without risking loss of custody. The presumption preferring
parental custody is not overcome by a mere showing that such assistance was
obtained. Nor is it overcome by showing that those who provided the
assistance love the children and would provide them with a good home.
These circumstances are not alone sufficient to overcome the preference for
parental custody.
* * *
McDermott, 385 Md. at 431, 869 A.2d at 816 (quoting In re Guardianship of Sams, 256
N.W.2d 570, 573 (Iowa 1977) (emphasis added) (quotation marks omitted). Thus, while
the Grandparents have taken an active role in caring and providing for the Child since his
birth and provided assistance to Petitioner in parenting the Child, we conclude sufficient
evidence was presented indicating that Petitioner has remained active in the care and
custody of the Child refuting the hearing judge’s findings regarding the second Hoffman
factor.
102
exposing the Child to new activities. We will also defer to the hearing judge’s finding that
there is no “intensity and genuineness” on Petitioner’s part in having custody of the Child.
As we noted, supra, a hearing court retains broad discretion in custody determinations
because the hearing judge is in the unique position of seeing the witnesses and parties and
hearing the testimony in a live setting, in contrast to the appellate court, which only has a
cold record before it. See In re Yve S., 373 Md. at 586, 819 A.2d at 1051 (citations omitted).
We conclude that the hearing judge erred in finding that if the Child remained in the
custody of Petitioner, then he would certainly fail and be in crisis, and possibly expelled
from his school. We acknowledge that the Child’s negative behavior began at the end of
the kindergarten school year and his behavioral problems continued to escalate to the point
that the school referred him to the Crisis Center for an assessment on September 4, 2014.
There was ample evidence in the record reflecting that Petitioner was responsive to these
behavioral outbursts and was actively working with the school to help address the Child’s
problems – enrolling him in the Linkages to Learning program, exploring the possibility
of getting an IEP put into place, and searching for an appropriate therapist for the Child.
Evidence presented by Petitioner’s therapist also indicated that Petitioner was seeking
advice on how to become a more effective parent to the Child and corroborated Petitioner’s
efforts in locating an appropriate therapist for the Child. We also note that, rather than
being on the brink of expelling the Child, the school was actively working with Petitioner
to determine the best course of action for addressing the Child’s behavior. The school
principal testified that they had recently developed a behavior contract – the first step in
assessing the Child’s needs. Thus, while the evidence reflects that at the time of the custody
103
hearing the Child was unstable and was in crisis, there was also ample evidence in the
record indicating that Petitioner was attempting to seek ways – albeit imperfectly – to
address his behavioral difficulties and provide stability.
In sum, we conclude that the hearing judge erred in applying the first, second, and
seventh Hoffman factors and he erred in failing to make substantive factual findings
regarding the third and fourth Hoffman factors. Accordingly, we hold that the hearing judge
abused his discretion in finding that exceptional circumstances existed in this case.
We conclude that because the hearing judge’s factual findings in this case did not
support his conclusions that Petitioner was unfit and that exceptional circumstances
existed, the hearing judge, thereby, also abused his discretion in granting custody of the
Child to the Grandparents because the presumption favoring Petitioner retaining custody
of the Child was not rebutted by the facts in this case.
Because we hold that the circuit court abused its discretion in granting custody of
the Child to the Grandparents, we also conclude that the circuit court erred in ordering
Petitioner to pay child support to the Grandparents. We note that in her brief, Petitioner
requests that we grant her a recoupment of the child support payments she has paid to the
Grandparents in the amount of $35,000 because they were made to an unconstitutional
order. We decline consideration of the recoupment issue because we conclude the issue
requires additional fact-finding by the circuit court to determine whether Petitioner is
entitled to recoupment of the child support she has paid to the Grandparents to-date and, if
so, the amount that Petitioner is entitled to recoup. Accordingly, we remand this case to
104
the circuit court for further proceedings regarding whether Petitioner is entitled to
recoupment of the child support payments she has made to the Grandparents to-date.
CONCLUSION
In summary, we hold a third-party may intervene in a custody action between two
parents because Maryland Rule 2-214 allows a person “to intervene in an action when the
person’s claim or defense has a question of law or fact in common with the action.”
Maryland Rule 2-214(b)(1). We also hold that, because a third-party may not obtain
custody of a child over the child’s biological parents unless the third-party can demonstrate
that the parents are either unfit or that exceptional circumstances exist that may be
detrimental to the child, the third-party seeking to intervene in a custody action must make
a prima facie showing that the parents are either unfit or that exceptional circumstances
exist in their pleading. See McDermott, 385 Md. at 375, 869 A.2d at 783. In the case at
bar, the circuit court did not err in allowing the Grandparents to intervene in the custody
action between Petitioner and Father because the Grandparents alleged sufficient facts in
their motion to make a prima facie showing that Petitioner and Father were unfit and that
exceptional circumstances may have existed in this case.
We also hold that in determining whether a parent is unfit – sufficient to overcome
the presumption favoring parental custody in a third-party custody dispute – the court may
consider the following factors, whether: (1) the parent has neglected the child by
manifesting such indifference to the child’s welfare that it reflects a lack of intent or an
inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3)
there is evidence that the parent inflicted or allowed another person to inflict physical or
105
mental injury on the child, including, but not limited to physical, sexual, or emotional
abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental
impact on the parent’s ability to care and provide for the child; (5) the parent otherwise
demonstrates a renunciation of his or her duties to care and provide for the child; and (6)
the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.
We concluded that in the case at bar that, although several of the hearing judge’s findings
that served as the basis for his conclusion that the mother was unfit implicated several of
the factors above, because the majority of the hearing judge’s findings were not supported
by the record and were, therefore, erroneous, the hearing judge abused his discretion in
finding that Petitioner was an unfit parent.
We also conclude that the circuit court erred in applying the Hoffman factor test to
the facts in this case. See Hoffman, 280 Md. at 191, 372 A.2d at 593. The hearing judge
erred in finding that the “length of time” the child at issue “had been away from” Petitioner
was “whenever [Petitioner and Father] were going to do some tripping[]” because the first
Hoffman factor only applies to circumstances where a biological parent has given
constructive custody of the child to a third-party over a long period of time, and ample
evidence was presented in this case reflecting Petitioner has been an active custodian of
the child since he was born. The hearing judge also erred in concluding the Grandparents
had assumed care of the child “from the time of [his] birth[]” because it ignored the facts
presented at the custody hearing reflecting that Petitioner has been continuously and
actively involved in the child’s care since he was born. The hearing judge also erred in
drawing the conclusion that if the child remained in Petitioner’s custody he would likely
106
fail or continue to be in crisis because ample testimony presented at the custody hearing
indicated Petitioner was responsive to the child’s behavioral difficulties and was actively
working with both the child’s school and her own therapist to identify ways to help the
child with his behavioral issues. The hearing judge also erred in failing to make substantive
factual findings regarding the third Hoffman factor, which considers the “possible
emotional effect on the child of a change of custody,” and the fourth Hoffman factor, which
considers the “period of time which elapsed before the parent sought to reclaim the child[.]”
Hoffman, 280 Md. at 191, 372 A.2d at 593. Accordingly, because the hearing judge’s
factual findings in this case did not support his conclusions that Petitioner was unfit and
that exceptional circumstances existed, the hearing judge, thereby, also abused his
discretion in granting custody of the Child to the Grandparents because the presumption
favoring Petitioner retaining custody of the Child was not rebutted by the facts in this case.
We also hold that because the circuit court abused its discretion in granting custody
of the Child to the Grandparents, the circuit court also erred in ordering Petitioner to pay
child support to the Grandparents.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS REVERSED WITH
DIRECTIONS TO REVERSE THE
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY. COSTS
TO BE PAID BY RESPONDENT
GRANDPARENTS.
Judge Watts joins in judgment only.
107
Circuit Court for Montgomery County
Case No. 112675-FL
Argued: June 2, 2017 IN THE COURT OF APPEALS
OF MARYLAND
No. 97
September Term, 2016
__________________________________
NATASHA BURAK
v.
MARK BURAK, et al.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Dissenting Opinion by Getty, J., which
McDonald, J., joins.
__________________________________
Filed: August 29, 2017
Respectfully, I dissent.
I agree with the Majority that the circuit court did not err in granting the
Grandparents’ motion for permissive intervention. However, I strongly disagree with the
Majority’s holding that the trial court abused its discretion in finding that the biological
parents were unfit and exceptional circumstances justified granting custody to the
Grandparents.
Initially, the Petitioner, Ms. Burak, has failed to properly challenge the trial court’s
finding of unfitness before this Court. As the Majority concedes, Ms. Burak, “did not
independently appeal the unfitness issue decided by the Court of Special Appeals to this
Court” in her petition for a writ of certiorari. Majority Slip Op. at 57. For that reason alone
this Court should decline to consider her challenge to the trial court’s custody
determination.
Instead, the Majority excuses Ms. Burak’s failure to properly raise the issue of
unfitness on that grounds that the issue was raised and decided by both the trial court and
the Court of Special Appeals, that Ms. Burak “incorporated the argument into her argument
regarding permissive intervention[,]” and that both parties argued the issue in oral
arguments before this Court. Id. In other words, the Majority suggests that when a party
has failed to raise an issue in a petition for a writ of certiorari, the party can easily remedy
that error by raising the issue in her brief to this Court or at oral argument before this Court.
That is incorrect.
Maryland Rule 8-131(b) provides, in pertinent part,
(1) Prior Appellate Decision. Unless otherwise provided by the order
granting the writ of certiorari, in reviewing a decision rendered by the Court
of Special Appeals or by a circuit court acting in an appellate capacity, the
Court of Appeals ordinarily will consider only an issue that has been raised
in the petition for certiorari or any cross-petition and that has been preserved
for review by the Court of Appeals. . . .
Thus, when a party fails to raise an issue in a petition for a writ of certiorari, this Court
“ordinarily” will not consider it, regardless of whether it is later raised in a brief or at oral
argument. As the use of the word “ordinarily” implies, this Court has the authority to
decide issues not properly raised in a petition for a writ of certiorari. However, the Court
has consistently held that it should exercise that authority rarely, only when there is a
compelling reason of public policy or other justification to consider the issue. See Wynn
v. State, 351 Md. 307, 322-23 (1998) (noting that the Court has not treated Rule 8-131(b)
as “granting a general discretion to reach an issue whenever the Court so desires in the
interests of ‘fairness[,]’” and that “‘exceptions’ to the principle embodied in Rule 8-131(b)
are limited to ‘extraordinary circumstances’”); see also Mazor v. State Dep’t of Corr., 279
Md. 355, 371 n.8 (1977).
Here, there is no compelling reason to reach the unfitness claim. In Ross v. Hoffman,
the Court set forth a clear standard for third-party custody claims, namely that there is a
presumption that the child’s best interest is to remain in the custody of a biological parent
that must be overcome by a showing of unfitness or “exceptional circumstances as make
such custody detrimental to the best interest of the child.” 280 Md. 172, 178-79 (1977).
The Court recently affirmed the propriety of that standard in McDermott v. Dougherty, an
2
opinion that engaged in an exhaustive analysis of out-of-state cases applying the unfitness
and exceptional circumstances standards. 385 Md. 320, 357-418 (2005). The Court
expanded the use of that test to third-party visitation cases in Koshko v. Haining, 398 Md.
404, 441 (2007). And, the Court has clarified that in a custody case, “unfitness means
unfitness to have custody of the child, not an unfitness to remain the child’s parent.” In re
Adoption/Guardianship of Rashawn H., 402 Md. 477, 498 (2007). Thus, this Court has
already set forth a clear standard for courts to apply in third-party custody cases. To the
extent that trial courts may desire additional guidance as to whether a particular parent is
unfit, they may draw upon cases in out-of-state jurisdictions as persuasive authority.
Further, as clarified in Hoffman, a trial court need find only unfitness or exceptional
circumstances in order to grant a third-party custody claim. 280 Md. at 178-79. Here, the
trial court found both unfitness and exceptional circumstances, but Ms. Burak has failed to
properly raise a challenge to the trial court’s unfitness finding. Consequently, this Court
also need not address Ms. Burak’s claim that the trial court abused its discretion in finding
that exceptional circumstances justified granting custody to the Grandparents. Instead, the
Court should merely affirm the trial court’s grant of custody to the Grandparents on the
basis of the unchallenged finding that Ms. Burak was not a fit parent to have custody of the
child.
The Majority, apparently viewing the unfitness and exceptional circumstances
prongs of the Hoffman test as insufficiently clear, sets forth new standards for both. The
Majority enumerates, for the first time, a list of factors for a trial court to employ when
determining whether a biological parent is unfit in a third-party custody action. Majority
3
Slip Op. at 79-80. And, the Majority transforms the well-settled factor test for exceptional
circumstances stated in Hoffman, 280 Md. at 191, by adding a new requirement that a trial
court must find that a child has been away from his or parents for “a long period of time”
in order to find that exceptional circumstances exist. Majority Slip Op. at 96. The Majority
then concludes, unsurprisingly, that the trial court’s findings did not comport with the new
legal standards that the Majority has just devised.
Initially, I disagree with the details of the new standards set forth by the Majority
and believe that they are likely to prove confusing for trial courts to apply. There is
significant overlap between the new factors that the Majority sets forth for unfitness and
the already-extant factors described in Hoffman for exceptional circumstances. Compare
Majority Slip Op. at 79 (listing, as two of six enumerated factors for unfitness, “(1) the
parent has neglected the child by manifesting such indifference to the child’s welfare that
it reflects a lack of intent or an inability to discharge his or her parental duties” and “(2)
the parent has abandoned the child”) with Hoffman, 280 Md. at 91 (listing, as two of seven
enumerated factors for exceptional circumstances, “the intensity and genuineness of the
parent’s desire to have the child” and “the length of time the child has been away from the
biological parent”). This is particularly true as to the factor of parental abandonment; the
Majority lists abandonment as a factor for unfitness, but also states that “the first Hoffman
factor [for exceptional circumstances, i.e., “the length of time the child has been away from
the biological parent”] seeks to determine whether a biological parent has, in effect,
abandoned his or her child.” See Majority Slip Op. at 79, 96-97.
4
The newly added overlap between the two standards blurs the lines between
unfitness, which may well be found even when a parent is very involved in a child’s life,
and exceptional circumstances, which generally occurs when a parent has abandoned as
child or otherwise ceded the child’s care and upbringing to a third party. The Majority’s
holding is thus likely to sow confusion as to what is required for a trial court to find
unfitness as opposed to exceptional circumstances. And, the emphasis on abandonment
under both prongs is likely to be applied―improperly―to deny custody to third parties
when those parties have shown significant evidence indicating that the biological parent(s)
is unfit or lacks a genuine desire to have the child, but the parent(s) has not outright
abandoned the child.
The Majority is also unclear as to the mechanics of how, procedurally, a trial court
should apply its new standards. The Majority correctly recognizes that third-party custody
cases like the instant case, brought by the child’s grandparents, are distinct from third-party
guardianship/termination of parental rights (TPR) cases brought by a county Department
of Social Services. In a TPR case, a trial court is required to expressly consider certain
statutorily enumerated factors in determining whether to terminate a parent’s rights to a
child. See Majority Slip Op. at 62-63; Maryland Code, Family Law§ 5-323(d); see also In
re Adoption/Guardianship of Rashawn H., 402 Md. at 501 (“The court’s role in TPR cases
is to give the most careful consideration to the relevant statutory factors, to make specific
findings based on the evidence with respect to each of them, and . . . determine expressly
whether those findings suffice either to show an unfitness on the part of the parent to remain
in a parental relationship with the child or to constitute an exceptional circumstance that
5
would make a continuation of the parental relationship detrimental to the best interest of
the child.”) Consequently, instead of mandatory factors, the Majority lists factors for
unfitness that a trial court “may consider[,]” and states that those factors “are not the
exclusive criteria by which a court must rely to determine whether a parent is unfit[.]”
Majority Slip Op. at 79-80 (emphasis added). However, the Majority also holds that its
enumerated factors should “serve as a guide for the court in making its findings.” Id. at
80. Thus, the Majority’s opinion leaves unclear whether, in a third-party custody action
brought by a private citizen, the trial court must make explicit findings on the record or in
a written opinion as to all of its stated factors for unfitness, as is required in the TPR
context.
Similarly, the Majority has modified the Hoffman factor test for exceptional
circumstances, adding a requirement that “[a trial] court must first determine that the child
at issue has spent a long period of time away from his or her biological parent before
considering the other Hoffman factors.” Id. at 95. But it is unclear from the Majority’s
opinion whether a trial court may find exceptional circumstances merely based on a finding
of abandonment for a “long period of time” or if the court must also go on to make explicit
findings as to the other Hoffman factors.
Furthermore, I strongly disagree with the Majority’s reversal of the trial court’s
decision based on a new, retroactively applied legal standard. This kind of ex post facto
overruling of a trial court’s decision based on entirely new legal criteria is highly improper.
The Grandparents argued their claim for third-party custody, and the trial court conducted
a custody hearing, under the then-current legal standards for unfitness and exceptional
6
circumstances. It is profoundly unfair to the Grandparents to reverse the grant of custody
based on newly devised standards, without affording the Grandparents an opportunity to
make their case under those new standards. And, by applying the new standards to the
facts of the case, this Court usurps the trial court’s role to apply the law to the facts and
make discretionary findings. Thus, at a minimum, if the Majority believes that new legal
standards are necessary, the trial court’s ruling should be vacated, and the case remanded
for that court to hold a third-party custody hearing applying the new standards. See
Thompson v. State, 411 Md. 664, 683, 694 (2009) (holding that the correct legal standard
in a postconviction DNA case where the petitioner requests a new trial is whether there is
a “substantial possibility” that newly discovered evidence would have led to a different
result, and remanding case for the trial court to utilize that standard).
Finally, even if the Majority is correct to consider the merits of the trial court’s
rulings instead of simply vacating the decision and remanding for the trial court to apply
its new standards, I disagree with its conclusions that the trial court abused its discretion in
finding that Ms. Burak was unfit and that exceptional circumstances merited granting
custody to the Grandparents. The Majority correctly recognizes that in a child custody case
a trial court’s factual findings are scrutinized under the clearly erroneous standard, and its
ultimate conclusions reached by applying the law to those factual findings are reviewed
under an abuse of discretion standard. Majority Slip Op. at 45-46 (citing In re Yve S., 373
Md. 551, 585-86 (2003)). However, the Majority misapplies these standards, and has failed
to afford proper deference to the decisions of the trial court.
7
As to unfitness, the Majority holds that because some of the trial court’s factual
findings in support of the unfitness determination “were not supported by the evidence
presented at the hearing” they were erroneous. Majority Slip Op. at 82. The Majority then
proceeds through what is functionally a de novo review of the evidence in the record. The
Majority places different weight on some of that evidence than the trial court did, finds
“very little” evidence to support certain of the trial court’s findings, and finds that other
evidence should be discounted because it was based on testimony of Father and M that the
trial court deemed credible but the Majority does not. Majority Slip Op. at 82-91.
However, as we have repeatedly held, “[i]f there is any competent evidence to
support the factual findings of the trial court, those findings cannot be held to be clearly
erroneous.” Spaw, LLC v. City of Annapolis, 452 Md. 314, 339 (2017) (emphasis added)
(quoting Goff v. State, 387 Md. 327, 338 (2005)). And, in proceeding through the evidence
in the record, the Majority is forced to concede that there was at least some evidence to
support the trial court’s factual findings. Id. at 82-91. Moreover, it is not the function of
an appellate court reviewing for clear error to “substitute [its] judgment for that of the fact
finder, even if [the Court] might have reached a different result.” Nicholson Air Servs.,
Inc. v. Bd. of Cty. Comm’rs, 120 Md. App. 47, 84 (1998). And in reviewing a trial court’s
discretionary finding for clear error, this Court must give “due regard to the opportunity of
the trial court to judge the credibility of the witnesses,” as commanded by Md. Rule
8-131(c). This Court has explained that this deference to a trial court’s credibility
determination carries special force in child custody cases, where a trial judge “sees the
witnesses and the parties, hears the testimony, and has the opportunity to speak with the
8
child; he is in a far better position than is an appellate court, which has only a cold record
before it, to weigh the evidence and determine what disposition will best promote the
welfare of the minor.” In re Yve S., 373 Md. at 586 (quoting Davis v. Davis, 280 Md. 119
(1977)). Thus, rather than engage in an improper weighing of the evidence and credibility
of witnesses, the Court should simply hold that there was some evidence to support the
trial court’s findings and, therefore, those findings were not clearly erroneous.
The Majority also concludes that the trial court abused its discretion in applying the
law to the facts and concluding from its factual findings that Ms. Burak was unfit to retain
custody of the child. Id. at 82, 90. In contrast to the Majority’s view, I agree with the
Court of Special Appeals that there was more than sufficient evidence in the record to
sustain the trial court’s discretionary finding of unfitness:
On the actual record that was developed, the court acted well within its
discretion when it found the parents unfit. The record supports the court’s
finding that Wife still takes or is ready to take drugs and that she has
struggled with parenting and properly caring for Child. The court heard and
considered testimony regarding Wife’s inability and uneasiness in caring for
Child, and that her difficulties often resulted in her and Husband placing
Child in the Grandparents’ care. And the record revealed real questions
about Wife’s compliance with the parties’ agreed drug testing regiment. She
failed to comply with the Child’s Best Interest Attorney’s (“BIA”) request
for a random drug test on July 14, 2014. And although she eventually sent
the results of a test the BIA requested about a month before the custody
merits hearing, she refused to sign the release that would allow her results to
be sent directly to the BIA. This meant that Wife received and could review
her results before the BIA got them, which undermined the credibility of any
negative results. Wife obviously disputes these findings and the factual
premises underlying them, but the record contained ample evidence that
could support the court’s finding that she and Husband (who doesn’t contest
the finding) were unfit parents.
Burak v. Burak, 231 Md. App. 242, 269 (2016).
9
The Majority similarly misapplies the clearly erroneous and abuse of discretion
standards as to the trial court’s findings regarding exceptional circumstances. The Majority
again takes issue with how the trial court weighed certain evidence as to how long the child
was away from the parents during their frequent episodes of drug use, when the
Grandparents assumed care for the child, and “the stability and certainty as to the child’s
future in the custody of the parent.” Majority Slip Op. at 95-100 (quoting Hoffman, 280
Md. at 91). And, the Majority concludes that the trial court abused its discretion in
determining that exceptional circumstances merited granting custody to the Grandparents.
Id. at 100. I would instead adopt the reasoning of the Court of Special Appeals and hold
that there were more than sufficient facts in evidence to support a finding of exceptional
circumstances under the applicable Hoffman factors:
The record also supports the court’s finding of exceptional circumstances.
The evidence and testimony demonstrated that Child had been exposed for
years to a volatile and unhealthy home environment; the court cited “the
drugs, the sex, the craziness in the house, the different relationships, the lack
of interest in the mother, the mother lying—all of those things are factors for
both [unfitness and exceptional circumstances].” The Child spent long
periods of time away from Husband and Wife, especially when Husband and
Wife used drugs. The court found that the Grandparents had provided a great
deal of care for the Child, and that “the age of the child when the care was
assumed by the third party . . . was from the time of birth.” The court
considered the possible emotional effect on the child in a change of custody,
the period of time that elapsed before the parents sought to reclaim him, the
nature and strength of the ties between Child and the Grandparents, and
found all factors to strongly favor custody by the Grandparents. The court
did not find Wife’s stated desire for custody to be genuine, and that
Child “would continue with instability and he would certainly fail” in the
custody of his parents.
Burak, 231 Md. App. at 269-70.
10
In summary, this Court should hold that Ms. Burak has failed to properly preserve
her claim that the trial court erred in finding her to be unfit to have custody of her child
because she did not raise it in her petition for a writ of certiorari. And, because a third-
party custody claim requires only a finding of unfitness or exceptional circumstances, it is
not necessary for the Court to reach Ms. Burak’s claim that the trial court abused its
discretion as to its finding of exceptional circumstances. Instead, the Court should sustain
the trial court’s custody decision on the unchallenged ground of unfitness.
Moreover, the overlap between the new factors set forth by the Majority for
unfitness and the Hoffman exceptional circumstances factors is likely to prove confusing.
The Majority has also failed to clarify whether it intends for trial courts to explicitly
consider all of the factors it has enumerated. Further, even if the Court feels it necessary
to supply new standards for unfitness and exceptional circumstances, it should vacate and
remand the case to afford the Grandparents the opportunity to argue their case under the
newly announced standards. Finally, even if it were appropriate to review the trial court’s
findings under the newly announced standards, the trial court did not abuse its discretion
in finding that Ms. Burak was an unfit parent or in finding that exceptional circumstances
merited granting custody to the Grandparents.1 Therefore, I respectfully dissent.
Judge McDonald has authorized me to state that he joins this dissent.
1
The Majority also concludes that because of its holding that the circuit court abused
its discretion in granting custody of the Child to the Grandparents, “the circuit court erred
in ordering Petitioner to pay child support to the Grandparents.” Majority Slip Op. at 100.
I would instead affirm the Court of Special Appeals’ holding that affirmed the trial court’s
child support rulings. See Burak, 231 Md. App. at 280-84.
11 | 01-03-2023 | 08-29-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4390212/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DANIEL JAMAR BROWN, DOC #R53553, )
)
Appellant, )
)
v. ) Case No. 2D18-1554
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 24, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pinellas County, Frank Quesada, Judge.
Daniel Jamar Brown, pro se.
PER CURIAM.
Affirmed.
SILBERMAN, SLEET, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4390214/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CIARA ABIGAIL ROSENBLATT, )
)
Appellant, )
)
v. ) Case No. 2D18-1477
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed April 24, 2019.
Appeal from the Circuit Court for Pinellas
County; Frank Quesada, Judge.
Howard L. Dimmig, II, Public Defender,
and Clark E. Green, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Bilal Ahmed Faruqui,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
Affirmed.
NORTHCUTT, KELLY, and ATKINSON, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142278/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
O-G-
A--
Eononblo tamr L t;iuq
Dlnotor, Motor Tranrportmtion Diti8lon
&llro*4 Comd..ioa or 2.x..
AW tin, kxa.
Dear “ira opinion ‘40, pro75
El.1 can the hi1.m.d h..li.rlon
lmpmaiw
of Tua. le1~al1.1
the tu dum &or %otion
l5, Aeiola ala, k.CJ. of
Tua..
M O
lok~~wledgorooolpto fyour nqum8t r0r aa opipi0n
of tai. Doputmmnt on the quortioa atot. utat.4.
The faot8 with rofaronorto th. opinion rep& .r.
.I r0ilm:
Tho Crown&mob Ccmpuv ir l olotormhlolo oomn
carrier of paru@naur for hir. .ng d in lntorrkto oonoroo.
It. o oration. in-%X.8 -0 wholly'f BtW8tda in t&t it
true PI 8 rout* on u. 6. Hi&.tn Ro. Tl, whloh for two or
throo rAlo8 north OS Tmrkam Ir.rhollr within tho stat. of
Irxu and than 8aid hi&my 6008 into tho City oi Tuukana
onrhdf in Tuu .o(lonehalt in Arkama8.
that tha pr.ri.1.oa.
of ktirl.
vi806Cl+11 Ytatuto8, IO=, are in tie-
l1a~u.oof the #dual Conatltution.
Soworor’,It 1. dllill(l
by my 01 .o~Q#Z'O~.. to piy ow-h.U
of the tu.
The praou~o ~que8tion mu a8k u8 to rem3er.m opinion
on 18:
*CM we log.Uy makr th. oo8promi.aan thi? nttorV
Bon. Jti. x. IcllQry,Rag4 6
Artiole 3, %otion 66, of tha Coustltutioi of Texea
proil do. t
.l’ho Logislaturo oh611 iiaveno pomr to
releaar or lxtlngulsh, or to authorize the re-
1#6147 or extln@,ulnhlog, in wfxlc+ ar in part, the
lndsbtednesa, ~llablllty or obllcationof any oor-
pomtlon or lndirldwl, to this stats . . . exoept
dellnquoat taxer which have bden d\;e “or n period
OS at 14a.t tm y68ro.*
k aompromlss of thie tax would in effaot relmsa or
lxtlngulsh the balrnoo duo if said Mticlo 9116, Seotlon 16,
1s not ln violetion of tha Bsderal Constltutlcn a8 applied
to carrluo engagsd wholly In lnter6tato CCi::rierCO. xi ths
ect,larylnl: said tax 10 unconstitutlonnl, tho Crown Coaoh
Company would sot be obligated to pay my s-11.. You are,
thoreiOr0, ndr!.ssd that you camot legally compruu.loe thlr
tax ehlm.
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142279/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUS’I’IN
Bonorabl* Charlea 8. Mertin
Counhy Auditor
$arrimoo county
Mareell, Texas
on the above atato
COW R. Sto-
board appoln8ed tc eat end to be kntiwa a6 the
Earri*on eoullty Tire aatioaing mlkrd, Bwipamod or
three mea&m-a, wlth one ot tholr number aoting
as ahalrean. z;oogy of the lettar frcm the @war-
nor ia anoloeedherewithPar your gblanas and he&p
in snswsr%np:
ny inquiry.
Orlmbdandorthb
0 purola8bb:
tlnd~retand
is
In yous inqutry #itats in
tion ot tha sot
8UIpw mtlonln&
BUOh #lPpbPIIbI
ins hddalmtrator
id by either of
.-.
335
:
;,,. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142238/ | HonorabiaCharlesR. Martin
CountyAuditor
E&rrisoncanty
Marshall,Texas I
Dsar Sir: OPinion No. o-4116
Ril Logalltyof the Ear&son County
Cmmissioners'Court oamtraoting
with the City-ofWar&all to fur-
ruishfire-fightingfacilitiesto
cer+%in~definedfire districts
only, outsidethe civ limitabut
wit&in an eight-mileradius of the
aity'a aenter,to the excluizion of
the remainderof the oounty; and O.
relatedquestion.
Your letterrequestingthe opinionof this departmenton the quo+
tions statedthereinreads ia pwt as fallowrr
"The City of Marshallhas made a proposal'tothe Cemissionec8'Cauz$ of
HarrisonCounty to enter into an agreemexrt~tith
the City of Hnrshall,
vdzersbgthe Countyno~Q$‘bsTequfredto first organiz#,flre distriotoin
.,tbioklypopulitedoutQ$ag settlommts Ilthin L radiusof eight (8)
tiles frmthe centerof the City of Marshall,Pnd in said agreementthe
Countywould be requiredto pay a stipul&ed sum to the City of Marshall
ror each run mad&by the City Fire Da$arta~ntto the designatedfire dis-
trict (therebyexoludingall other se&ions of the County),and under
said contractor agreementthe Coun@ in turn would be requiredto make a
aontraotwith the individualpropertyownerswithin the designatedfire
distriot. That the propew owrs would be requiredto ppy the ooun*,
or ratherreimbursethe County,for eachnm made *the City Fire Depart-
ment for a stipulatedSIIBI
chargedthe countgIy tie City.
"QuestionNo. One: Hould the Commissioners * court of Halvisoncountgbe.
authorizedunder the law to enter Into a contracttith the City of Marshall
to providefor fire fightingfacilitiesfor oertaindefinedfire districts
outsidethe city limits,but within the county and within a radius of eight
(8) miles from the center of the Citg of Marshall,and at the same time .
excludeall other sectionsof the oountg?
Hon. CharlesR. *tin, page 2 (O-4116)
*QuestionNo. Twoa Would the Commissioner8* Court of EarrisonCounty be .'
authorizedunder the law to enter into above contraotwith privateproperty
ownersin certaindesignatedareas outlyingthe city limits of bkrshall,
Texas,and lyingwithin the county and within a radiusof eight miles from
the centerof the City of Marshall,therebyaxoludingall othersactions of
the county,whereby for a oertainstipulatedsum to bs pid toths aountyby
certainpr0pm-Q ownersin the firo district,the countywould, in turn,
furnishto the propee owners in said fire distriat,fire fightingfacili-
ties under the above describedcontractwith the City of Marshall,and
therebyexoludingall other motions of the County?"
House Bill Noo.262, dots of the 47th Legislature,RegularSession,
(Article2351a-1,%ernon'sAnnotatedCivil Statutes)providesin part:
" . The Commissioners* Court of any countyof this State shall aisc have
tlk*authority to enter into oontractswith any city,town, or villagewithin
the countyand/oradjoiningaounties,upon such terms and conditionsas shall
be agreedupon betweenthe Commissioners ' Court and the governingbody of snob
city, town, or village,for the use ofthe fire truoksand other fire fight-
ing squipnentof the city,town, or village . e ."
Generallyspeaking,the authorityof the oonrmissionars‘ court as the
governingbody to make oontratcts in its behalf is strictlylimitedto that
conferredeitherexpresslyor by fair or necessaryimplicationby the Constitu-
tion and law8 of the St+. (TarrantCountyvs. Rogers,125 S.W. 592; Baldwin
VS. Travis county, 00 S.H. 480). The authorityto aontraoton behalf of the
count is vested in the'comnissioners' oourt in absenceof a statuteauthoxiz-
ing some other agency to contraot3and if an agreementis not made throughor
sanotionedby suoh agency,it binds neitherthe countynor the individual.
(Sparksvs. KaufmanQunQ, 194 S.W. 605; AmarioanDisinfectingCo. vs. Free-
&one County,193 S.W. 440: Texas Juriaprodancd, Vol. 11, pe 630). The
conmissioners' court must havu authorityof law for its contract.and, if the
authorityhas-keengiven,a reasonableconstruction of itwill be given to
effectits purpose. (Conmissioners' Court VS. Wkllaae,15 S.We (2d) 525)a
Article 2351~1-1,
supra, specificallyauthorizesthe commissioners'
oourt of any countyof this State to enter into contractswith aqg oity, toam,
or village*thin the countyand/or adjoiningcountiesupon suchterms and
oonditionsas shallbe agreedupon %&weaa the oonmissioners' court and the
governingbody of the city, town, or -villagefor the use of fire trucksand
other flm fightingequipmentof the city/town, or village. Therefore,Sa
reply to your first question,it is our opinionthat the oonmissioners'
court of HarrisonCountyis authoriasdunder the law to enter into a contract
with the city of Marshallto providefor fire fightingfacilitiesfor certain
defineddistrictsor areas outsideof the oity limitswhichare tiithin the
countyand v&thin the radius of sight miles from the center of the City of
Marshall,and at the same tIme‘axcludeall other sectionsof the countg.
It.&&in,
Eone mari.ai. psge 3 (O-4116)
m think that the distanoafrom the oily or the areas to b includedare'
imnatsrialand that the ccmmissioners'court oan legallycontractwith
the city to providefor fire fightingfacilitiesupon such teams and con-
ditionsas shall be agreedupon betweenthe commissioners' court and the
governingbody of the city0
In answerto vour secondquestion,you are rsspsctfuliyadvised
that it is our opinionthat the commissioners'
court of said countyhas
no authozitywhatsoeverto enter into the alive mentionedoontractor
co&r&s tith privatepropertyowners for the purposesheretoforemention-
ed. There is no authorityof law for such contracts.
Trustingthat the foregoingfully answersyour inquiry,we are
Yours veryt nlly
ATTORNEYGRNERlUOFTS?LLS
By /s/Ardell Williams
Ardell Williams
Assistant
APPROVEDAPRIL '3,1942
/=I GROVSRSEUERS BFF%?OVRD
FIRSTAsSISTAm OpinionCozmuittes
A~ORXEYGWEJi&L l&BITE ,.
chpiman ~~' | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129104/ | OFFICE OF THE ATTORNEY GENER~~L . STATE OF TEXAS
JOHN CORNYN
November 19,2002
The Honorable Frank Madla Opinion No. JC-0576
Chair, Intergovernmental Relations Committee
Texas State Senate Re: Whether a particular community housing
P.O. Box 12068 development organization is entitled to an
Austin, Texas 787 1 l-2068 exemption from taxation of its real property under
section 11.182 of the Tax Code (RQ-056 1-JC)
Dear Senator Madla:
You ask whether a particular organization that qualifies as a community housing
development organization under section 11.182 of the Tax Code “and is 100% owner of the general
partner in a limited partnership that owns improved real estate for the direct purpose of renting low
income housing units within the county” is entitled to exemption from taxation of its real property.’
Because we have been provided with limited information regarding the particular organization and
the issue in controversy, we answer your question in general terms. To qualify for an exemption
from taxation of its real property under section 11.182 of the Tax Code, an organization must first
satisfy the requirements of article VIII, section 2(a) of the Texas Constitution. Then it must satisfy
all the requirements of section 11.182 of the Tax Code: The organization must qualify as a
community housing development organization under section 11.182 (b) of the Tax Code and
“control 100 percent of the interest in the general partner if the project is owned by a limited
partnership” assuming section 11.182(e) of the Tax Code (which sets out particular requirements for
a housing project constructed after December 31, 2001 with the proceeds of certain tax-exempt
bonds) applies; and it must satisfy the other requirements of section 11.182 that apply to the
organization and its property. We cannot and do not determine whether the organization you ask
about is in fact entitled to an exemption from taxation of real property under article VIII,
section 2(a) and section 11.182. The chief appraiser for the appraisal district in which the particular
organization’s property is located is authorized to determine in the first instance whether the property
is tax exempt. The burden is on the organization seeking an exemption to show that it is entitled to
the exemption under article VIII, section 2(a) of the constitution and section 11.182 of the Tax Code.
We briefly review the constitutional provision pursuant to which the legislature adopted
section 11.182 of the Tax Code. Article VIII, section 1 mandates that all real and tangible personal
property, unless exempt as required or permitted by the constitution, shall be taxed in proportion to
‘Letter from the Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate,
to the Honorable John Comyn, Texas Attorney General (June 13,2002) ( on f 11e with Opinion Committee) [hereinafter
Request Letter].
The Honorable Frank Madla - Page 2 (JC-0576)
its value. See TEX. CONST. art. VIII, 5 l(a). Article VIII, section 2(a) provides that the legislature
“may, by general laws, exempt from taxation . . . all buildings used exclusively and owned by . . .
institutions engaged primarily in public charitable functions, which may conduct auxiliary
activities to support those charitable functions; and all laws exempting property from taxation
other than the property mentioned in this Section shall be null and void.” Id. art. VIII, 8 2(a)
(emphasis added). Thus, under article VIII, section 2(a), to qualify for tax exempt status, an
organization must be (1) a charitable institution and (2) the real property must be used exclusively
and owned by the charitable organization. See A? Alamo Water Supply Corp. v. Willacy County
Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991); Baptist A4em’ls Geriatric Ctr. v. Tom Green
County Appraisal Dist., 851 S.W.2d 938, 941 (Tex. App.-Austin 1993, writ denied) (and cases
cited). Before an institution can qualify for tax exempt status under a statutory scheme, the
institution must first satisfy the constitutional requirements. See iV Alamo Water Supply Corp.,
804 S.W.2d at 899; Baptist Mem ‘Is Geriatric Ctr., 851 S.W.2d at 941.
Under section 11 .182 of the Tax Code, a qualified community housing development
organization is entitled to an exemption from ad valorem taxation of its improved or unimproved
real property owned for the purpose of providing low-income or moderate-income housing if
it meets the requirements of subsection (b) of the Tax Code and the other provisions of section
11.182 that apply to the particular organization and its property.
Section 11.182(b) of the Tax Code provides that a community housing development
organization within the meaning of section 12704 of the United States Code “is entitled to an
exemption from taxation of improved or unimproved real property it owns if’ it
(1) is organized as a community housing development
organization;
(2) meets the requirements of a charitable organization
provided in Sections 11.18(e) and (f) [regarding operations and
assets];
(3) owns the property for the purpose of building or repairing
housing on the property to sell without profit to a low-income or
moderate-income individual or family satisfying the organization’s
eligibility requirements or to rent without profit to such an individual
or family; and
(4) engages exclusively in the building, repair, and sale or
rental of housing as described by Subdivision (3) and related
activities.
TEX. TAX CODEANN. 5 11.182(b) (Vernon 2001); see also 42 U.K. 8 12704 (West 1995) (defining
“community housing development organization” as a nonprofit organization that has as one of its
The Honorable Frank Madla - Page 3 (JC-0576)
purposes the provision of housing to low-income and moderate-income persons). That an
organization qualifies under this provision does not end the inquiry.
To qualify for the tax exemption provided in subsection (b), an eligible community housing
development organization must satisfy the specific requirements or restrictions of subsections (c)
through (g) of section 11 .182, to the extent those provisions apply in the particular situation.
We summarize those provisions in general terms. Under subsection (c), a community housing
development organization’s real property may not be exempted from taxation after the third
anniversary of the date of the property’s acquisition unless the property is offered for rent or is rented
to low-income or moderate-income individuals or families. See TEX. TAX CODE ANN. tj 11.182(c)
(Vernon 2001). Pursuant to subsection (d), a multifamily rental property consisting of thirty-six or
more dwelling units may not be exempted in a subsequent year unless in the preceding year the
organization expended at least forty percent of taxes saved as a result of the exemption in that year
on social, educational, or economic development services, capital improvements projects,
or rent reduction. See id. $ 11.182(d); see also id. 5 11.182(h) (property exempted from this
requirement). This requirement, however, does not apply to property financed with tax-exempt
bonds between January 1,1997 and December 3 1,200l. See id. 9 11.182(d). But under subsection
(e), an organization seeking tax exemption for improved real property that includes a housing project
acquired after December 3 1, 2001 with the proceeds of certain tax-exempt bonds, must “control
100 percent of the interest in the general partner if the project is owned by a limited partnership[,]”
see id. 8 11.182(e)(1);2 comply with the community housing development rules and laws
administered by the Texas Department of Housing and Community Affairs (the “Department”), see
id. 8 11.182(e)(2); and file annually with the Department and each taxing unit from which a project
receives an exemption evidence that the organization spent more than ninety percent of the project’s
cash flow for eligible individuals or on social, educational, or economic development services,
capital improvement projects, or on rent reduction, see id. 8 11.182(e)(3); see also id. fj 11.182(h)
(property exempted from this requirement). Finally, to receive an exemption, under subsection (b)
an organization must annually have an audit prepared by an independent auditor and deliver a copy
of the audit to the Department and to the chief appraiser of the appraisal district in which the
property sought to be exempted is located. See id. tj 11.182(g).
In short, to qualify for an exemption from taxation of its real property under section 11.182
of the Tax Code, an organization must not only meet the requirements of section 11.182(b), but it
must also satisfy the other requirements and restrictions of section 11.182 to the extent they apply
in a particular situation.
We have not been provided with any information regarding the particular organization or
property at issue other than that the organization is a qualified community housing development
corporation and “is 100% owner of the general partner in a limited partnership that owns [the]
improved real estate [ .I” Request Letter, supra note 1, at 1. We do not know the provision of
*Compare TEX. TAX CODE ANN.$ 11.182(e)(l), with TEX. CONST. art. VIII, 0 2(a) (authorizing legislature to
exempt only “all buildings used ex&siveZy and owned by . . . institutions engaged primarily in public charitable
functions”) (emphasis added).
The Honorable Frank Madla - Page 4 (JC-0576)
section 11.182 in controversy or requiring clarification. See id. Furthermore, we do not know
whether as “100% owner of the general partner in a limited partnership that owns [the] improved
real estate,” the particular organization seeking the tax exemption is the exclusive user and owner
of the property as required by article VIII, section 2(a). Id. Accordingly, we answer your question
only in general terms. To qualify for an exemption from taxation of its real property under section
11.182, an organization must first satisfy the requirements of article VIII, section 2(a) of the Texas
Constitution. Then it must satisfy all the requirements of section 11.182 of the Tax Code: it must
qualify as a community housing development organization under section 11.182(b) and “control 100
percent of the interest in the general partner if the project is owned by a limited partnership”
assuming section 11.182(e) applies; and it must satisfy the other requirements of section 11.182 that
apply to the organization and its real property. Because we have been provided with limited
information and because this office does not make finding of fact in the opinion process,3 we cannot
and do not determine whether the organization you ask about is in fact entitled to an exemption from
taxation of real property under section 11.182 of the Tax Code.4
The chief appraiser for the appraisal district in which the particular organization’s real
property is located is authorized to determine in the first instance whether the property is exempt.
In general, to receive a tax exemption, a person must apply for the exemption by filing an application
with the chief appraiser for the appraisal district in which the property claimed exempt is located.
See TEX. TAX CODE ANN. 0 11.43(a) (Vernon 2001). The chief appraiser determines an applicant’s
right to an exemption. See id. 8 11.45(a). After considering the application and the relevant
information, the chief appraiser must, “as the law and facts warrant,” (1) approve the application
and allow the exemption; (2) modify the exemption applied for and allow the exemption as
modified; (3) disapprove the application and request additional information from the applicant
supporting the exemption; or (4) deny the application. Id.
The burden is on the organization seeking an exemption to show that the organization is
entitled to the exemption under article VIII, section 2(a) of the constitution and section 11.182
of the Tax Code. Exemptions from taxation are not favored by the law and are not favorably
construed. See N. Alamo Water Supply Corp., 804 S.W.2d at 898. “Statutory exemptions from
taxation are subject to strict construction because they undermine equality and uniformity by placing
a greater burden on some taxpaying businesses and individuals rather than placing the burden on all
taxpayers equally.” Id. Thus, the burden of proof clearly showing that the organization falls within
the statutory exemption is on the claimant. See id.
3See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this
office); JC-0027 (1999) at 3 (stating that questions of fact cannot be addressed in attorney general opinion); JC-0020
(1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process).
4See, e.g., BaptistMem ‘Is Geriatric Ctr. v. Tom Green County AppraisalDist., 85 1 S.W.2d 938,945 (Tex. App.
-Austin 1993, writ denied) (“Whether an organization is a purely public charity is a question of fact . . . Similarly,
whether the property in dispute is used in furtherance of the organization’s charitable purposes is a fact issue.“); Tex.
Att’y Gen. Op. Nos. DM-402 (1996) at 4-5 (whether particular resource conservation and development council
exclusively serves charitable purpose or exclusively promotes social welfare is question of fact inappropriate for opinion
process); JM-1257 (1990) (d ecision that particular entity is charitable organization within act ordinarily involves
investigation and resolution of fact questions, which cannot be undertaken in opinion process).
The Honorable Frank Madla - Page 5 (JC-0576)
SUMMARY
To qualify for an exemption from taxation of its real property
under section 11 .182 of the Tax Code, a particular community
housing development organization must first satisfy the requirements
of article VIII, section 2(a) of the Texas Constitution. Then it must
satisfy all the requirements of section 11.182 of the Tax Code: The
organization must qualify as a community housing development
organization under section 11.182 (b) of the Tax Code and “control
100 percent of the interest in the general partner if the project is
owned by a limited partnership” assuming section 11.182(e) of the
Tax Code (which sets out particular requirements for a housing
project constructed after December 3 1, 2001 with the proceeds of
certain tax-exempt bonds) applies; and it must satisfy the other
requirements of section 11.182 that apply to the organization
and its property. Whether a particular organization is entitled to an
exemption from taxation of real property is a question of fact that
cannot be determined in an attorney general opinion. The chief
appraiser for the appraisal district in which the particular
organization’s property is located is authorized to determine in the
first instance whether the property is exempt. The burden is on the
organization seeking an exemption to show that it is entitled to the
exemption under article VIII, section 2(a) of the constitution and
section 11.182 of the Tax Code.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142302/ | 4
OFFICE OF THE ATI’ORNEY GENERAL OF TEXAS
AUSTIN
Honorable 04 P. Lookhart, 0hrinm.a
Board of Inaurrmoo Comirr1on.n
Austin, Taxa
Deer sirr Opinion No* 04gsl
~0t adiri0m 4*00riba should s0t
be aonuldored a8 liebillty or
rratmni bsasrit rochtg m00t-
itr ro1v.n~~lullma e.nboat11
a
9 iml judgupot ir roedraW M
-*
Your requa#t iOr OpialOnha8 bean rsOeitrdAndyoere-
tul1y 00nsie4r0d by thlr ll.partzI.nt. fiequote from your r.-
quest am rouana
lTo x eP
a r a telnel
~o o letp 0r
, ~lla e,Tex a e,
(forwM.y Taea Logal ki.ne funoml soolsty)
la a fkatmael benefit roolrtf lnoorgoratd
and operating,purportedly, u&r the provislon~
of Chapter 8; Title 78, oi our &tired Civil
stetute8. It bar operated under a Cartirlcatr
or Authority room thin De rtment which. ha8 K&W
ls;lred, however, and it 19" 8 ocntlnul& to operate
under the h6ldorrr prOViSiOnoi the rtatutea
uatll a %nml Ca-tlfloato 10 rlthor lasued or
l$JeofflOell~denied.
“bong othrr romon~, the llrnmml Certlfloete
18 being wUhhel6 beoauee itr rsoords alsolose
that at mm t be in the past them was e-~orted-
ly lssllsaby the SOoistg: to one BI J. O’keOffa a
Cmtlfioate whereby the Society jmr:;ortedlyobll-
38td itaf t0 PRY to cwc~w~ th4 8um 0r $4,167
on a future bate, thr Certitioate being, 88 no
are lnforhd, rll~d into the rora of oertiflcclte
of nhioh wo are furniahlng 7ou a aopy barewith,
*If this obligotloa is to be Oharged ae a
iiabtlity 0r the soolbty, In emmining ati mait-
Eononbto 0, ?. Uokhart, Cbeimn, hgr B
lng it8 lmlrr for thr 08a or d0t0rriib
lag whothcr or not it laTlo wont tbrn our
d~trmliaatlw would ht. to be &et it ir la-
wlveat but lwh 4~tomlnatlon muld not bo
nqulr a it the Oortl?leatelr wt prog8rly
a llabllity Or the SOOiat~ln the rirou~-
8telm~8 bnlnoutllnedr
Cmr attorney roptumntiae t& .Sooloty,
la ordar to obvlatr 8tmh obj*otlon, baa 8ub-
titt0d t0 w 6rrid6rit0r f. Y. 110pki~8,thr
rnv Reridont of tha holot t0 th0 lrr00t
that th8 Swlety 'lr not 1AI’lbtad to B. J.
ovswta, toriaarPr~fiidwit0r ruoh moletp
. . . for beak sale?l*r or on any other (IO-
00uut.’ 80 has aubldttd to tu also en la-
d-it7l~anent ahnod and arknowbdgod
jollltlyin rtatuto r0m by I. Y. Ko;klna
an4 hi8 rir0 hho, T 0ltetuto us,er a .
eapl.7fiol~entand able thanolally to baok
up the leroaunt ) to ladmalty end MT. the
gookt harmbar ??om losr by rwwa of fiuoh
O@rtlt Ioat@.
*The ittomey eleo mteter to ue rerbelly
the ?OimVlIIg feOt8 whioh, ior the -080 of
thir opinion, you me7 la8uw to bo true.
vhat thr wtiri0at0 18 In th8 r0m
hereto etteohad.
=Th t lwh Oertlfloeta ua8 108u.d by
Mr. s. 1. O*furte to himmelt, purport-
ing to aot a8 Pruldent otulr&i10 he we8
lotrall7 Pre8ldeat of the Soolety, but
contrary tn the raoltel on it8 ?a00 4th.
out aAy rewlutloe 0r the Bar4 0r f&w-
tor8 or other proper euthorlcetion to him
so to do having been granted in eocordems
with the provle1on.eo? the oherter end
by-leu8 0r the aoolet7.
"'fhat,WAtI~~ to the NOital in the
Certlfloate, omdto aavbr ldvenoeU eny
rerh or lto lqulmltmt to the Soolaty aad
that the &ale&y we8 not indebtod to
mOOri ln any 8um or on a nylooowt
Wh6A suoh Certlflcate we8 irmued.
*
Eononbls O* P. Laekhert, Cbklnun, kgo S
*¶%a attoraq OTmfi up00 w hi8 rl8w8
-.
that th. CUtitiUt6 &md.d sot bo Set 0; es
a lleblllt~ot the 8Wkt7 for porpO8.8 of
det.l'dIii~ it8 SOlTrAOt', trl AOU, to? the
?O~OW%~~S68OIMo
vhat it wea lsstwd WlUlout .0n8140rr-
tionr
That it ram issue4 vlthout luthorlty
of th0 govarnln&body bring glron end
etldonoadin eroor4enorwith the oharter
end bplnrr.
CbSOFTO8 00 ptiisiO# Or ia-• iSSU@d
;&tdo;hFOU& it, 6Bd the Pa-At Of it8
eretloaa~; end that, themfore,
it oennot %I any orrot baotmo'en obllge-
tloa or fire4 liebllltyo? the dwldty
or bsoomo duo end payeblo unlos8 end until
tho Swl6t7 baOa6efi amply 8Ol.tUit end re-
mains rolront dth all opsrstlng lxpermes,
roln6umnoo prmluma, an4 legal rs8srv*8
MO~8UX'y iOr it t0 mUt it8 PliOy obli-
gations, lto ., em fully ~mvl4o4 ror end
until, over and lboro all of 8ueh itom,
it s&11 ham looumulatsd a 8u?tlol~at
rurplw out of uhloh tc my the ?a00 value
or the4csrtlf~oetrr
_' *A8 yet A0 Suit ha8 been bfowht, Or d6WDd
for peymsnt made upon the Csrtiflsets~ but
Ur, O*Kss??r rtlil hold8 it and wemumbly
treats it as a biding .obllgatloieaU intmdr
to beman peymsnt ead ?robsbly sus later OR..
. .
Eonoreblo 0. Pe Lookhex%, ChaSrmn, k&s 4
lAuumlng th, above rertr to k rrteb-
. - site u8 four o
th0 protifiionror
l
tar 8 lto mnl4 4 othsr p?lluable.iew#,
and la the above lroumskeeo8, thlr item l8
to ba trutad by hi8 BO624 es a llablllty qi
tha 30ottf ror the pup088 of detrnainlng .
itl 801WlS7."
rrm 7ou.r lsttar tint the rmtrrnrl
beastit 8OOist @row4 OOntOStS th. rtiidit7 of thr ebotr
4soorlbed and ha8 St?Oo& $O?MSOfi thsnto, qe
hem sarlow doubts es to t& authcrlt7 or thr sooiaty to
lsaus rush 0~rtiri06t0 an4 serlousl~ dmbt thet a ju&gnmt
Ootid br reooYerod &&Afit th. 6OOiSt7 UAdSt ths ieOt8 Stat*&
but it 18 cot a.OsS ia taifiOpiCiOO t0 +lOfi OC thO#S'
Quutloc8 Snd we 40Ta PBS oa nm*
I+Is our o~l~Im, under the raoto otatod, that
uels48 aed until a ria &Qasnt of a oourt 0r oaapetqnt
&rlr4iotlun la rwdomd OA ml4 *artlfloetr,you rhmald net
00n814rr rcld 8eirimcp ns e lieblllt~ of tbo socisty es-
tWtiCC it8 8017ellSy.
Vary truly yOU8
P APPROVED
OPINION
00YYrrrEc | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142304/ | OFFlCE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable f&or&s W. CO%
state Health Officer
Auattn, %rms
'DearSir: opiplon No. 04049
Ref State Deal&h Citioer my'not
require~labelingof foods so
a8 to inalude the rmmt3.u
thereof or a list of the in-
grediants ooctainsd.
Your request for an oyfnion of this deprtmmt
reads:
".
~--,
z...
*Pros tine to time; the State liealth
~haspromulgatedrules and.adopted
..Otfioer
standards for foods as authorized byEFri1:. _.,(
,~:.
,StatutesVol. 1, Chaptor 3, Article 4433.
. c
"The,Federallhureailof AnislalIndustry
vt Inspeot$on Serviae, by and through the
. S. Seoretary of Agriculture,haa recerttly .
.adogtedregulations concernin& the labeling
of neat.and produets whioh affects a l&rga
pro:?ortlon of the pack& industry, except
that part of the industry pot under yederal
inspection.
"Ron-FederalInsyeoted lzaokershave
.comulted me concening the advfeabllitg of
prmul.gatinCre&etitns ainilar to those
of the yede:al.Covermaent,nheroby Lnfoma-
tivc labeliu is raq;liradwithout referenoe
to adultontion or nlsbrandln+ Any regu-
1at:on gronulgated pursuant to this request
~would require such labeling to include the
fomula or list cf lfigrodients.
Wrlninal Statutes Title 12: Ch%ctor 2;
f,rtlcle70::deals with the lzbelrng of foods
Honorable Oyzge 98.Coz, Page S
and art&, In order to be consistent with
the law, it would be naoaesary that any rul-
lnr:adocted 'bythe State Health OtflOer in
raiieren~eto the labal.iryof foods coz~ply
with the provfeions of that Artiale. The
question arises aa to whether any regulatloa
~~~~atedbymerequiringlab~~asa3ws
,statedwould'be ooasistentwith the law whea
taking Into coasiderationArticle 7OS, whioh
reads~npartaefollow8t 'Nothing in thl+
law shall be oormtrued as raqulrlng proprie-
: tars or nkamafaoturers of proprietaryfooda
which aontain no unwho~esaaa added lngre-
dients to disolosa their trade formulas ex-
: cept in sa far as the provisloas of this law
raquire to seoum:‘freedpan from adulteration
or mlsbrantllng.~
.I
Will you please advise me upon this
question, eiaoe any effort upon my part to
j?~ require this ty;leof labeling would neo-
$.:1.
,, essarily entail considerable expesse to the
- .~
.._,.I:
F;-
~*- : ._.;_
T: ~lndustry,*
-.
Article 4400, RCN~BCJ~Civil Statutes,'arovidesLn.
part thst thenState Realth OfSlo~r or an agent within .hia
Repastv.e;lt
subdect to the control of the iieslthOfficar vzayr
"2. Rake, pubgish and eatorcterules
aosslstsnt with this law, and adopt stand-
ards for foods, food.produota,beverages,
dru$%, ate. . . T" .
ArtLola 4471 Revised Civil Statutes, deals with
the aduloeratlonand n~ebrand@g of foods and drugs;
Article &72, Revised Civil Statutes;reads:
*The term *adulterated*anO *nisbraaded*,
as used In t&is chapter, shall be held to have
tta same naaikingas is :;lventhose terms in
chapter two of tlt1e.M of the ?etal Code.*
Artlolo 7c17of the PerrdLCode defines in detail the
tarn %vdulteratedv.
,.!i. 1.,.) (., i
-I
- .
.
Honorable tiorge IV,Cor,'Paga 9
.
Arti0le 708 or th4 Peaal c0a4, afir .dtaiaing; the
term 'Mabranded", provide@:
I9
. . . flotbiq i.?tbitilaw ahall be OOLI-
atmed as~requlring proprietors or manuiactm
a-s or proprietary roods whioh contain no un-
wholeeom added ingredients to disclose their
trade formulas except in 80 rar as the provi-
t3i0=~0r this law rsquire to 440~~4 freedom
rraa adulteration or miabra+ng.W
A careful oonsiderationor these and other statutes
dealing with the sower and authority of the StateHealtb Orri-
aor leads us to the conclusion that the Legislature of this
State baa not vested you with ml4 makIng authority eurri-
aiently broad to sustain h: rule rsfiuiringthe type or labeil-
ing inquired about.
\
Yours vary truly
_ -.
-, | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142315/ | /.y
I’
OFFICE OF THE ATI‘ORNEY, GENF+iL OF TEXAS
AUSTIN
s..
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4390215/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHUNSI WILLIAM VINES, )
)
Appellant, )
)
v. ) Case No. 2D17-5094
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed April 24, 2019.
Appeal from the Circuit Court for Lee
County; Thomas S. Reese, Senior Judge,
and Joseph C. Fuller, Jr., Judge.
Jason B. Blank of Haber Blank, LLP, Fort
Lauderdale, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Rachel Kamoutsas,
Assistant Attorney General, Miami, for
Appellee.
PER CURIAM.
Affirmed.
VILLANTI, KHOUZAM, and BADALAMENTI, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4129126/ | OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
September 12,2002
The Honorable Clyde Alexander Opinion No. JC-0554
Chairman
House Committee on Transportation Re: Whether a towing company may provide
Texas House of Representatives certain services for the owner of a parking facility,
P.O. Box 2910 and related questions (RQ-0528-JC)
Austin, Texas 78768-2910
Dear Representative Alexander: 1
You ask several questions about chapter 684 of the Transportation Code, which provides for
regulation of towing companies and parking facilities. First, you inquire whether section 684.082(a)
prohibits a towing company from providing free of charge to the owner of a parking facility “services
such as roadside assistance or lot maintenance, including parking space striping and fire lane
markings.“’ We conclude that it does. You also ask whether the penalty attached to violations of
chapter 684 is applicable to both parking facility owners and towing companies. We conclude that
it is. Finally, you ask what agency or entity has the authority to enforce section 684.085, which
imposes a fine for violations of chapter 684. We conclude that this statute may be enforced by
various local prosecutors in municipal or justice of the peace courts.
Subchapter E of chapter 684 of the Transportation Code deals with the regulation of towing
companies and parking facilities. Section 684.08 1(a) provides that “[a] parking facility owner may
not directly or indirectly accept anything of value from a towing company in connection with the
removal of a vehicle from a parking facility.” TEX. TRANSP. CODE ANN. 8 684.081(a) (Vernon
1999). Likewise, section 684.082(a) declares that “[a] towing companymaynot directly or indirectly
give anything of value to a parking facility owner in connection with the removal of a vehicle from
a parking facility.” Id. 8 684.082(a). A brief submitted to this office indicates that some towing
companies are offering to furnish “free parking lot striping, fire lane markings, lot maintenance, and
roadside assistance for employees to parking facility owners or operators.“2 The letter contends that
46[t]he cost to restripe a parking lot for an apartment complex with 500 parking spaces is around
$2,500.” Johnson Brief, supra note 2. You first ask whether section 682.082(a) bars a towing
company from providing free of charge the services described “in connection with the removal of
‘Letter from Honorable Clyde Alexander, Chairman, House Committee on Transportation, to Honorable John
Cornyn, Texas Attorney General (Mar. 25,2002) ( on f 11e with Opinion Committee) [hereinafter Request Letter].
2Brief from Patrick Johnson, to Opinion Committee, Office of the Attorney General at 2 (May 07, 2002)
[hereinafter Johnson Brief).
The Honorable Clyde Alexander - Page 2 (JC-0554)
a vehicle from a parking facility.” Request Letter, supra note 1. The answer to this question
depends upon whether such services constitute “anything of value,” in contravention of section
684.082(a).
In Attorney General Opinion DM-330 (1995), this office considered whether the predecessor
statute of section 684.082(a) was violated by a towing company when it provided a sign of the value
of approximately twenty dollars to a parking facility. The opinion construed the term “anything of
value” as prohibiting the furnishing of such a sign free of charge:
The statute would plainly prevent a towing company owner from
giving the parking lot owner a twenty-dollar bill, or a twenty-dollar
loan. There is no legal difference between the bill or loan, and the
sign. A sign of this sort has a cash value, and is therefore a thing of
value for the purposes of the statute.
Tex. Att’y Gen. Op. No. DM-330 (1995) at 2. The opinion also rejected the suggestion that the gift
of such a sign might not be “in connection with the removal of a vehicle from a parking facility.”
If a twenty-dollar sign is a “thing of value,” we believe it is clear that the additional services that you
describe constitute a “thing of value,” whose free-of-charge provision to parking facility owners
would violate the prohibition of section 684.082(a).
The advertising material submitted with the Johnson Brief includes such items as “lot
maintenance for parking space striping, fire lane markings and red curb painting, handicap markings
and decal on pavement, no parking zones, loading and unloading zones, and reserved and/or assigned
parking markings and much, much more,” and “[a]11 of this at No Charge.” Johnson Brief, supra
note 2. Furthermore, the advertisement purports to offer these services as part of a “property
management package.” Id. In our opinion, it is not permissible to offer such additional services at
no charge if the services are connected to “the removal of a vehicle from a parking facility.” See
TEX. TRANSP.CODEANN. 8 684.081(a) (Vernon 1999). Attorney General Opinion DM-330 also
addressed this matter:
We decline to read this phrase [in connection with the removal of a
vehicle from a parking facility] to refer to particular removals. In our
view, it refers to the whole contract between the facility owner and
the towing company and the arrangements incident thereto. To read
the phrase otherwise would permit the sort of kickbacks the statute
was designed to prevent, on the grounds that they did not relate to
particular removals. Obviously, this is not what the legislature
intended.
Tex. Att’y Gen. Op. No. DM-330 (1995) at 2. We too decline to read the phrase in question to refer
to particular removals. As a result, the additional free services of which you inquire may not be
offered in connection with the removal of vehicles from a parking facility.
The Honorable Clyde Alexander - Page 3 (JC-0554)
Section 684.085 of the Transportation Code declares that “[a] violation of this chapter is
punishable by a fine of not less than $200 or more than $500.” TEX. TRANSP.CODEANN. 8 684.085
(Vernon 1999). You ask whether this penalty provision is applicable both to towing companies and
to parking facility owners. As we have indicated, section 684.082(a) prohibits a towing company
from directly or indirectly giving “anything of value” to a parking facility owner “in connection with
the removal of a vehicle from a parking facility.” Id. 9 684.082(a). By the same token, section
684.08 1(a) bars a parking facility owner from directly or indirectly accepting “anything of value”
from a towing company “in connection with the removal of a vehicle from a parking facility.” Id.
0 684.081(a). Thus, section 684.085 criminalizes both aspects of such a transaction. It is equally
applicable to the donor, as exemplified by the towing company, and to the donee, in the person of
the parking facility owner.
Finally, you ask about the enforcement of section 684.085. Justice courts have original
jurisdiction “in criminal cases . . . punishable by fine only.” TEX. CODE GRIM.PROC.ANN. art.
4.1 l(a) (Vernon Supp. 2002). Municipal courts “have concurrent jurisdiction with the justice
court of a precinct in which the municipality is located in all criminal cases arising under state law
that . . . arise within the territorial limits of the municipality and are punishable by fine only.” Id.
art. 4.14(b). In justice court, both county and district attorneys are authorized to represent the state
in criminal prosecutions. TEX. CONST. art. V, $ 21. In general, however, the county attorney is
required to “attend the terms of court in his county below the grade of district court, and shall
represent the State in all criminal cases under examination and prosecution in said county.” TEX.
CODE CRIM. PROC.ANN. art. 2.02 (Vernon Supp. 2002). Article 45.201 of the Code of Criminal
Procedure provides that “[a]11 proceedings in a municipal court shall be conducted by the city
attorney of the municipality or by a deputy city attorney.” Id. art. 45.201(a). In addition, the county
attorney, if he so desires, may “also represent the state in such prosecutions.” Id. art. 45.201(b). As
the Court of Criminal Appeals declared in Aguirre v. State, “the responsibility and authority for
municipal court prosecutions is clear: In the municipal court the city attorney has the right and duty
to prosecute, and the county attorney has the right, but not a duty, to prosecute.” Aguirre v. State,
22 S.W.3d 463,468 (Tex. 1999).
The Honorable Clyde Alexander - Page 4 (JC-0554)
SUMMARY
Section 684.082(a) of the Transportation Code prohibits a
towing company from providing free of charge to the owner of a
parking facility services such as roadside assistance or lot main-
tenance, including parking space striping and fire lane markings in
connection with the removal of vehicles from a parking facility. The
penalty attached to violations of chapter 684 is applicable to both
parking facility owners and towing companies. Various local
prosecutors are responsible for the enforcement of this statute in
municipal and justice courts.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129139/ | 1’ OFFICE OF THE ATTORNLY GENERAL . ST.I\TE OF TEXAS
JOHN CORNYN
August 7,2002
The Honorable Danny Buck Davidson Opinion No. JC-0541
Criminal District Attorney
123d Judicial District Re: Whether a sheriff in a county that does not
110 South Sycamore have a bail bond board has the authority to post in
Carthage, Texas 75633 the county jail a list of preapproved bondsmen
(RQ-05 17-JC)
Dear Mr. Davidson:
You ask whether a sheriff in a county that does not have a bail bond board has the authority
to post in the county jail a list of preapproved bondsmen. We conclude that a sheriff is not
authorized to post such a list.
You ask about the authority of a sheriff in a county that has not established a bail bond board
under chapter 1704 of the Occupations Code. That chapter creates a board in each county with a
population of 110,000 or more, and authorizes, but does not require, the establishment of a board in
less populated counties. See TEX. OCC. CODEANN. $0 1704.002-.052 (Vernon 2002). In a county
with a bail bond board, only a person who holds a license from the board may act as a bail bond
surety in the county, with the limited exception of an attorney who represents the person in the
criminal case for which the bond is given. See id. 8 8 1704.15 1, .163. The sheriff must accept the
bonds of sureties licensed by the bail bond board. See id. 9 1704.201. The bail bond board must
post “in each court having criminal jurisdiction in the county, and shall provide to each local official
responsible for the detention of prisoners in the county, a current list of each licensed bail bond
surety and agent of the bail bond surety in the county.” Id. 8 1704.1 OS(a). In addition, chapter 1704
permits but does not require the posting of such a list in the county jail. See id. § 1704.105(b) (“A
list of each licensed bail bond surety in a county may be displayed where prisoners are examined,
processed, or confined.“).
In a county without a bail bond board, the taking of bail bonds is generally governed by
chapter 17 of the Code of Criminal Procedure. See id. 8 1704.002; see also Castaneda v. Gonzalez,
985 S.W.2d 500,503 (Tex. App.-Corpus Christi 1988, no writ) (in county where no bail bond board
has been created, chapter 17 of the Code of Criminal Procedure controls the taking of bail bonds in
that county). As chapter 17 governs the taking of bail bonds in the county at issue, we examine its
provisions in some detail.
The Honorable Danny Buck Davidson - Page 2 (JC-0541)
Chapter 17 authorizes an officer taking a bail bond to “require evidence of the sufficiency
of the security offered.” TEX.CODECRIM.PROC.ANN. art. 17.11,§ 1 (Vernon 1977). The sufficiency
of the security offered by a surety is governed by articles 17.11 through 17.14. One surety shall be
sufficient if
such surety is worth at least double the amount of the sum for which
he is bound, exclusive of all property exempted by law from
execution, and of debts or other encumbrances; and that he is a
resident of this state, and has property therein liable to execution
worth the sum for which he is bound.
Id. The officer taking the bail bond may require an affidavit attesting to the surety’s worth. Id. art.
17.13. Article 17.14 provides that the officer may require further evidence “if the . . . officer taking
the bail bond is not fully satisfied as to the sufficiency of the security offered . . . .” Id. art. 17.14.
Under article 17.11, a person who has signed as a surety on a bail bond and is in default is
disqualified to sign as a surety “so long as he is in default on said bond.” Id. art. 17.11,§ 2 (Vernon
supp. 2002).
Chapter 17 generally governs the taking of bail bonds on a bond-by-bond basis. A person
acting as surety must be a Texas resident and offer sufficient security. See id. art. 17.11, § 1 (Vernon
1977). A person is disqualified to act as surety on a bond if in default on a prior bond. See id. art.
17.11,§ 2 (Vernon Supp. 2002). With these exceptions, chapter 17 does not set forth qualifications
for sureties. While articles 17.11 through 17.14 give an officer taking a bail bond broad discretion to
determine whether the security offered by a surety is sufficient, see Tex. Att’y Gen. Op. No. DM-483
(1998) at 6 (Code of Criminal Procedure articles 17.11,17.13 and 17.14 authorize sheriff taking bail
bond to consider other bonds executed by surety), “chapter 17 does not require a person to obtain
a license to be eligible to act as a surety nor does it authorize an officer taking a bond to require a
surety to be licensed,” Tex. Att’y Gen. LO-98-105, at 2-3. Furthermore, the authority to assess the
sufficiency of the security offered is vested in “[elvery court, judge, magistrate or other officer
taking a bail bond,” TEX. CODEGRIM.PROC.ANN. art. 17.11, 0 1 (Vernon 1977); see also id. arts.
17.20-.22 (provisions governing when a peace officer may set and take bail); chapter 17 does not
vest any special authority in the sheriff.
And importantly, the authority of an officer taking a bond under chapter 17 of the Code of
Criminal Procedure is even more limited with respect to some corporate sureties. An officer taking
a bond lacks authority under articles 17.11 and 17.13 to question the solvency of a corporate surety
authorized to do business in Texas by the Department of Insurance. See Int ‘IFid. Ins. Co. v. Sherzjjf
ofDallas County, 476 S.W.2d 115 (Tex. Civ. App.-Beaumont 1972, writ ref’d n.r.e.); see also Tex.
Att’y Gen. Op. No. M-l 060 (1972) (article 17.11, section 1 does not limit total number or amount
of bail bonds corporate surety may make).
Both a judicial opinion and an opinion of this office have expressly concluded that these
Code of Criminal Procedure provisions do not authorize a sheriff to adopt rules imposing a licensing
The Honorable Danny Buck Davidson - Page 3 (JC-0541)
system for bail bond sureties akin to that set forth under chapter 1704 of the Occupations Code. See
Castaneda v. Gonzalez, 985 S.W.2d 500 (Tex. App.-Corpus Christi 1998, no writ); Tex. Att’y Gen.
LO-98-l 05. In Castaneda, the court noted that “[i]n counties where a bail bond board exists, the
board may only adopt such rules as are authorized by and are consistent with statutory authority, and
may not adopt rules which impose additional burdens, conditions, or restrictions in excess of or
inconsistent with statutory provisions.” Castaneda, 985 S.W.2d at 504 (citing Tex. Fire & Cas. Co.
v. Harris County Bail Bond Bd., 684 S.W.2d 177,178 (Tex. App.-Houston [ 14th Dist.] 1984, writ
refd n.r.e); Bexar County Bail Bond Bd. v. Deckard, 604 S.W.2d 214, 216 (Tex. Civ. App.-San
Antonio 1980, no writ)). An officer taking bail bonds under chapter 17 of the Code of Criminal
Procedure “is prohibited from adopting rules which exceed statutory authority in the same way bail
bond boards” governed by chapter 1704 of the Occupations Code are limited to adopting rules
authorized by and consistent with chapter 1704. Castaneda, 985 S.W.2d at 504.
The court in Castaneda concluded that the sheriffs authority to require evidence of the
sufficiency of the security offered by bondsmen under articles 17.11 and 17.14 authorized the sheriff
to require bondsmen to fill out an application form. See id. at 503. However, the sheriff lacked
authority to impose substantive requirements not authorized by articles 17.11 and 17.14:
The rules requiring bondsmen to accept suspension of their authority
to write bonds when in litigation concerning forfeitures and agree to
indemnify the Sheriff for expenses and attorney fees in any litigation
with him are unrelated to the sufficiency of the security offered, and,
therefore, the Sheriff has no authority to impose these requirements
under articles 17.11 and 17.14. Similarly, there is no authority for the
Sheriff to require the pledging of certain collateral. Under article
17.14, if the Sheriff is not satisfied with the sufficiency of the security
offered, further evidence shall be required. To require bondsmen to
actually pledge collateral, as the Sheriff seeks to do in this case, goes
beyond the statutory authority to require further evidence, and is
therefore impermissible.
Id. (citation omitted).
You ask whether a sheriff is authorized by chapter 17 to post in the county jail a list of
preapproved bondsmen. You explain that bondsmen in your county submit “an application for proof
of sufficiency of security” to the county sheriff.’ The list ofpreapproved bondsmen “is derived from
the application process.” Request Letter, supra note 1, at 2. The sheriff supplies inmates with this
list and local telephone books: “Inmates are not limited to the list and may contact any person,
attorney, firm, company, surety, or bondsman they wish.” Id. at 1.
‘Letter from Honorable Danny Buck Davidson, Crirninal District Attorney, 123d Judicial District, to Honorable
John Comyn, Texas Attorney General, at 1 (received Feb. 27, 2002) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable Danny Buck Davidson - Page 4 (JC-0541)
We conclude that the posting of such a list exceeds the authority of a sheriff under chapter
17. Clearly, chapter 17 authorizes an officer taking a bond to require proof of the sufficiency of
security offered by the bondsmen, proof that the officer could require in the form of an application.
See Castaneda, 985 S.W.2d at 503 (“The rule requiring bondsmen to fill out an application form is
permissible under the Sheriffs authority to require evidence of the sufficiency of the security offered
by bondsmen.“). Arguably, chapter 17 might authorize a sheriff to preapprove bondsmen on a
voluntary basis, provided that the officer taking a bond from a preapproved bondsman verifies
that the bondsman’s security is still sufficient, see, e.g., TEX. CODECRIM.PROC.ANN. art. 17.11,
89 l- 2 (Vernon 1977 & Supp. 2002) (“any person who has signed as a surety on a bail bond and is
in default thereon shall thereafter be disqualified to sign as a surety so long as he is in default on said
bond”), and provided that those who have not been preapproved are not precluded from executing
bonds.
But no provision in chapter 17 expressly authorizes a sheriff to provide a list of preapproved
bondsmen to inmates, and we do not believe that this authority may be implied. Chapter 17 provides
authority for the taking of bonds in individual cases; it does not address the sheriffs provision of
information to inmates. Furthermore, as we have noted, a sheriff is not authorized to question the
sufficiency ofa state-regulated corporate surety’s security. SeeInt ‘IFid. Ins. Co., 476 S.W.2d at 120
(sheriff “does not have any discretion in the determination of the sufficiency of the surety when the
surety upon the bond tendered for approval is an insurance company authorized to-do fidelity and
surety business in Texas”). A list of bondsmen whose security has been preapproved by the sheriff
under chapter 17 would omit corporate sureties that might also be eligible to execute bonds in the
county. By contrast, the list of licensed bail bond sureties that chapter 1704 of the Occupations Code
permits to be displayed “where prisoners are examined, processed, or confined,’ includes every
surety eligible to execute bail bonds in the county. See TEX. OCC.CODEANN. $5 1704.105(b) (bail
bond surety list), .152 (licensing requirements for both individuals and corporations qualified to
write fidelity, guaranty, and surety bonds under the Insurance Code).
In sum, chapter 17 of the Code of Criminal Procedure does not provide a statutory basis for
a sheriff to provide a list of preapproved bondsmen to inmates. A sheriff has only those powers that
are provided by the legislature. See TEX. CONST.art. V, 8 23 (sheriffs “duties, qualifications,
perquisites, and fees of office[] shall be prescribed by the Legislature”). We have not located any
other statute that expressly or impliedly provides such authority. The sheriffs position as the keeper
of the county jail authorizes the sheriff to provide individuals who are arrested in the county and
detained in the county jail with information that will enable them to contact potential bondsmen, to
facilitate their release on bail. See TEX. LOC.GOV’T CODEANN. 0 35 1.041 (Vernon 1999) (sheriff
is the keeper of the county jail); see also TEX. CONST.art. 1, 8 11 (right to bail). The sheriff may
provide detainees with telephone books and may compile and provide detainees with a
comprehensive list of all persons who wish to execute bail bonds in the county. But the authority
to provide information does not authorize a sheriff to provide information that distinguishes between
preapproved and other potential sureties. Accordingly, we conclude that a sheriff is not authorized
to post in the county jail a list of preapproved bondsmen.
The Honorable Danny Buck Davidson - Page 5 (JC-0541)
SUMMARY
A sheriff in a county that does not have a bail bond board is
not authorized to post in the county jail a list of preapproved
bondsmen.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126461/ | FILED
NOT FOR PUBLICATION
FEB 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEMCAP LENDING I, LLC, a Delaware No. 15-55332
limited liability company,
D.C. No.
Plaintiff-Appellee, 2:13-cv-05504-SJO-MAN
and
MEMORANDUM*
CROP USA INSURANCE AGENCY,
INC., an Idaho corporation; CROPUSA
INSURANCE SERVICES LLC, an Idaho
limited liability company; AIA
INSURANCE, INC., an Idaho corporation;
AIA SERVICES CORPORATION, an
Idaho corporation; R. JOHN TAYLOR, an
individual, AKA R. Johnson Taylor, AKA
Ray Johnson Taylor, AKA Raymond J.
Taylor; REINSURANCE PARTNERS
LLC, an Idaho limited liability company;
GREEN LEAF REINSURANCE
PARTNERS LLC, a Delaware limited
liability company; SOUND INSURANCE
AGENCY; JOLEE DUCLOS, an
individual; HILLCREST AIRCRAFT
COMPANY,
Defendants-Appellees,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
DONNA J. TAYLOR,
Intervenor-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 9, 2017**
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Donna Taylor appeals from the district court’s denial of her motion to
intervene. The district court ruled that her motion was untimely. We affirm.
1. The district court did not abuse its discretion in ruling that the motion to
intervene was untimely.1 See United States v. Alisal Water Corp., 370 F.3d 915,
918–19 (9th Cir. 2004). It rationally weighed all three considerations for
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1
Taylor contends that we should review de novo the timeliness issue,
relying on League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302
(9th Cir. 1997). In that case, however, de novo review was appropriate because the
district court denied the appellant’s motion to intervene in a one-sentence order
that did not specify whether the denial was based on a finding of untimeliness. Id.
By contrast, the district court here denied the motion in an eight-page order clearly
explaining why the district court found Taylor’s motion to be untimely.
Accordingly, abuse of discretion is the appropriate standard of review.
2
determining whether a motion to intervene is timely. See League of United Latin
Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (“In determining
whether a motion for intervention is timely, we consider three factors: ‘(1) the
stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice
to other parties; and (3) the reason for and length of the delay.’” (citation omitted)).
Taylor’s decision to delay intervention until after the parties had reached a
settlement agreement “weigh[s] heavily against” intervention. Orange Cty. v. Air
Cal., 799 F.2d 535, 538 (9th Cir. 1986); see also Aleut Corp. v. Tyonek Native
Corp., 725 F.2d 527, 530 (9th Cir. 1984) (affirming the district court’s ruling “that
intervention on the eve of settlement following several years of litigation was not
timely”). It was reasonable for the district court to conclude that prejudice would
result if Taylor were permitted to contest the terms of the parties’ settlement. See
United States v. Oregon, 913 F.2d 576, 589 (9th Cir. 1990). Fourteen months
elapsed between the start of the lawsuit in July 2013 and the September 2014
settlement, during which time Taylor knew that no one was asserting her illegality
defense. An additional four months passed between the settlement and Taylor’s
January 2015 motion to intervene. It was not an abuse of discretion for the district
court to find that Taylor should have moved to intervene sooner.
3
That a party or the court can raise the issue of illegality at any stage in the
proceedings, see, e.g., Taylor v. AIA Servs. Corp., 261 P.3d 829, 841–42 (Idaho
2011), does not absolve potential interveners of their duty to “act as soon as [they]
‘know[] or ha[ve] reason to know that [their] interests might be adversely affected
by the outcome of the litigation.’” Oregon, 913 F.2d at 589 (citation omitted).
Taylor, knowing that this lawsuit potentially affected her interests, was not
permitted to wait on the sidelines hoping that another party or the court would step
up to the plate for her. Cf. Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th
Cir. 1978) (per curiam) (“The crux of appellants’ argument is that they did not
know the settlement decree would be to their detriment. But surely they knew the
risks. To protect their interests, appellants should have joined the negotiations
before the suit was settled.”). Taylor’s lack of resources to hire a California
attorney also does not excuse her failure to intervene sooner. See Alisal Water
Corp., 370 F.3d at 923–24 (“An applicant’s desire to save costs by waiting to
intervene until a late stage in litigation is not a valid justification for delay. To
hold otherwise would encourage interested parties to impede litigation by waiting
to intervene until the final stages of a case.”).
2. We lack jurisdiction to review anything other than the district court’s denial
of Taylor’s motion to intervene. See Alaniz, 572 F.2d at 659 (“Inasmuch as
4
appellants’ application for intervention was properly denied, they are without
standing to litigate the merits of the decree. Therefore, appellants’ other arguments
are to no avail.” (citation omitted)); Pellegrino v. Nesbit, 203 F.2d 463, 468–69
(9th Cir. 1953) (holding that where the original parties to a suit did not appeal,
“[o]ur jurisdiction is . . . limited to review of the final order from which appellant
appeals, that is, the denial of the motion to intervene”). We therefore decline
Taylor’s invitation to decide whether the agreements underlying this dispute were
illegal and unenforceable.
AFFIRMED.
5 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142288/ | OFFICE OF'IHE A’ITORNEY GENERALOF-
AU0TIN
xonorable 0. P. Lockhart, Chalmmn
Board of Inauranoe Comnlissloners
Auemn, Texas
Dear Slrr opinion 80. o-4065
Ret IS the plan of the Reserve Loan
Life IXWUW.lOe COUipq end the
American Liberty Oil Company as
desoribed lawful?
YOUZ' letter reQU88tiJQ dillOpinion of this d8partXl8nt on
th8 &bove mtated qu8StiOn reads as fOllOWb;
"'pheR86erVe LO038 L.ife IlMlUl'aBO8Compaay Of
Dal&m, Texas, Se organlsed pursuant to Chapter 3,
Title 78, Revised 01~11 Statute8 of Texan, vith
$250,000 capital, and the Ammriaan Liberty Oil Oom-
pany, as it8 ndane indloates, Is presumably lnoor-
porated for the purpose of producing, refining, and
marketing orude 011 and Its products, iaoludlng re-
tail distribution. Mr. Clint MurcUsonandLlr.
Toddle Lee Wynne are Stookholders and director8 In
the life $neuranoe company, and are the principal
stockholders In the 011 company.
“A plan haa been Submitted to us for approval
in a policy fom and +pplioatlon form vhersby life
polioies are bff8rQd to the publia generally by the
Insurance company for whlah the first year premiwns
are agreed to b8 paid, and actually paid in advanoe,
jointly by the Bmployer of the asetied and by the oil
company in oertaln agr88d proportions, and these facts
are reflected in the face of the polioiea themselves.
*We understand the 011 oom@any has set up a fund
of $50,00O'to b8 Used for this purpose and charged to
adV8rtAdIkg of the 011 oompany, vhose name, of course,
appears in the faoe of the polioy as having donated
. its share of th8 first year premiums. Obviously the
plan Is designed also to increase the business of the
.
Roiorable 0. P. Lookbart, Chalmaan, Page 2
bUminC8 compeny, and thus this 8Oh8mS rebounds to
the benefit of the ocunmon 8tOCkhOldr88 In th8 two
oompani8S at both ends of the line.
“The authorities cited in "Insurance,". 24 Tex.
.JlW., Sections 137, and 231, and In Couch on Inaurano8.
~Sectlona 107, 350, 605, and 606 seem to indicate that
8inC8, 80 far aa Ye h8V8 been able t0 dlaoover, Ye
have no statute forbidding the practice mentioned a-
bOV8, it I8 not illegal tie88 by r88aon Of the com-
munity of ownership, interest, and control aa between
the two oompanIe8 which might be 8 form of rebating,
dIacrlml~tlon, or Other practioe forbidden by the
atatUt88 hereafter m8ntIOn8d. Or OOntram t0 public
polloy generally.
'We respectfully Invite your attention to the
provisions of Art10183 568, 569 and 578 of the Penal
COdS, end Artlolea 5053, 5056 end 5064 ,of th8 R8VI88d
Civil Statutes, vhioh may have aon8 bearing upon the
questions here propounded.
%8 reapectiully ask your OpkIOn 88'tO vhether
the plan above outlined Is lavful and should be ap-
proved by ua in polIolea end applioation forms), or
vhether the scheme contravenes the provlalons of en$
oonatitution or statutory provialon or la oontrery
t0 publPo pOli.ay OtherWIse In View Of~the COmBunIty Of
Oi?n8rahlp, iPt8F88t, and OOntrOl (LB betVe8n the tV0
COlIlp.Sn188."
btiOl8 . 53, Vernon18
Annotated Civil Statutea, among
other thlnga, prov50de8 in 8ff8Ot
that no inducement t0 in8UranO8
ahalL b8 m&d8 U~~l88a ap8oified in th8 poliay or OOntreCt Of In-
8Ul"IXLO8. Apparently this requIr8ment ha8 been complied with by
inaertbng into the tiSUIWlC8 pO11C3.88 Ol? COntr8cta the fOllOWIll
p8regr8pht '
'This policy Is Iaaued in cOn8Id8ratIOn of the
eppllcat1on therefor, a copy of which Ia attaahed
hereto and made 8 part hereof, end of the p8gment
in advane of the first premium of $
C8dpt ~Of #FhlCh is h8IWby 8Ck330v18dg8d~iOkh&%
Bonorable 0. P. Lo&hart, (W&man, Peg8 3
maintain this DO~IOP In for08 for the D8riOd termI-
mating on the - kayof , i9 and'
it Vi11 b8 Conm8d in for08 UpOn %h8 &8r pay-
ment of $ on said date and bn the day OS
every - thereafter until thmicy anni-
versary nearest tie date on which the Insured at-
tains the age of years or until the prior
death of the iDaui%i%ie said first prcuuiumonly
to be paid jointly bj,
employer of the insured) end
oor.poratlon)."
h&V8
w808Z'8fully oonSId8red the St8t&ll8ntiOll8d in
your letter
and are of the opieion that the proposed plan of
the Reserve Loan Life Inaumnae Campeny and the Ameriaan Liberty
Oil Company does pot contravene any of these statutes.
It la stated In Wuohla Cyalopedla of InauHnae Law,
Vol. 3, pOg8 1962, thatc
"Paynent of Insurance premIuma la not neceaaar-
Ily the personal act of the 111aured, oonsequently,
end as ageneral rule, anyonemaypeythe premIuma
or 8aaeiraaientaon 911 Insurance polloy or benefit aor-
tISIaat8, vlth the result that, if rooepted‘ the p8y-
ment Is as valid as IS made by the Lnatand hizaaelf,
and t&Is vhether the payment was voluntary, or pw-
auant to request of,:or 8 contraat with, the person
or persona responsible for such payment, this being
8sp8cl8llg true In the case of request or express
contraot, provided, of aourae, that there are no ele-
ments of vagering aufflclimt to avoid the aontraot
of Insurance, or auoh payments are not prohibited by
8 statute, and are not made after the polloy he8
C8888d to b8 a valid and enforceabla OOntr8Ct. l + l m
With reference to the payment of premiums on Insureno
poliolea, the general rule as Stated in Corpus Awls, Vol. 32, p.
1197, la 8a follovar
Honorable 0. P.,Lookbart, Ch&lramn, Page 4
"Premiums may be paid by insured or benefl-
Oi8~, or by someone for him, even though the
on8 so pay&g has no insurable Interest.'
App8r8ntly, under tbn general XWleS 8bOV8 mentioned, '
the payment of Insuranoe premiums aan be made by anyone vhere
such payments are not prohibited by statute. Ue have failed to
find any Texas Statute prohibiting auah payments.
In the 0888 of Thayer et al vs. Vathem et al, 44 S. W.
906, it is atat6dt
"Bec8ua8 the parties oolnpoaing both ocanpaniea
are the same is no bar to their dealing with e8Oh
other. All the law requires in ouch cases is that
the timnaaatlon shall be free from fraud and exe-
outed in good faith.'
This Ma 8 suit brought for the oon#truotion of a trust
agreement, and to requlrq one of the trustees, to aoaept atook of
the nebv company, and frenafer the franohlaea ehd property of the
DaU.aa Rapid-Transit R8fiVay Coaqany to the nev aorp~ration oc-
ganized by virtue of said trust agreeawnt.
In Fletcherta Cyolopeti Corporations Vol. 2, p. 1857,
it i8 Stated8
llhenever 8 oorporatlon has psver to BaLs a
oontract,It can aa&e It vlth anether oorporatlon
aa veil 88 en Indlvldual. or partnership. Hovever,
it has been held that oontraota between two oorp-
orations, In order to bind either of them, atuat be
vlthln the povera of both.
"If the right to oontraat exists, it is inma-
terial if the same offiaers and. stockholders oontrol
both contracting corporatlone; if there is no b8d
faith.!'
Bovever, as v8 understand e question before us, v8 do not have
% 8 oorporations contreating vith each
the pPopO8ition of two aepa
other vlth the same offioera and atookholdera. Apparently there
Honorable 0. P. Lockhart, Ch8irmanl Page 5
la no contraot whatsoever between the American Liberty Oil Com-
pany and the Reserve Loan Life Inauranoe Comp8ny. The 011 aom-
-jr Sl8l'8lJr
8gX'88S t0 p8y and
.~ $oea pay a part of the pr8mIum
on 811 polIcI8s of a certam aLaa*.
The question la raised vhether the Amerlaan Liberty
Oil Company ha8 the leg81 pover and authority t0 perfolln the
8bOVe m8ntiOn8d act8 as adV8rtiSing for aald oompany. It 18
stated in Fl8tCh8r'S Cyclopedia on Corporations, Vol. 2, page
178'7r
"A corporatlori may adopt any proper means of
advertising its bualneaa or Its enterprise, lrnd
make necessary contracts with the publishera of
newspapers or others for auoh purpose."
It la further stated in the same volume on page 17881
'538 moat dlffioult of alI. questions relating
to implied pqvera la whether, in a partlaular case,
8 corporetlon m8y rid 8 person or 8 firm or 8nother
company when Its purpose Jn so doing la to lnoreaae
its ovn busln888. ThIa queatlon'often arises in
connection with donations by a oorporatlon to aid
an enterprLa8, the auaceaa of vh5oh Vi= incre888
the business of the donating oorpor8tlon, In connea~
tlon with the power of the corporation to become a
guarantor or 8 surety to help a person, Slnn or
another corporation, where the efSeot'v111 be to en-
able the corporation tc make a sale or obtain a
steady customer or to Oth8IWiSe help its buainesa;
and In various other phases. It moat frequently a+
rises in connection with the buaI.neaa of brewing
c~anles, land companies, street oar oompanI8a and
the 15.k8. All that can be said la that the olrcum-
stances of the particular aaae largely control the
question; that some oourts +re more liberal then
others In allowing corporations to do acts which a
level-headed business man, 8s an individual, would do
to help his business; that the undoubted tandenay; Of
th8 courts la in the direction of upholding such aota.
.* + I .u
HOnOr8bl8 0. P. Loakhsrt, Chelnnan, Page 6
It is our opinion that the above mentioned plan Is
not prohibited by law end that the Department of Inaura.noe may
legally 8pprOV8 application and policy.fonna containing the
above QUOtWd par8@'8ph.
Trusting that the foregoing fully enavers your Inquiry,
we are
Yours very.truly
A~alatsnt
AWtej | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142306/ | :] ......
I/
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
I
AUSTIN
Honorable Wm. J. Esvaon
Secretary OS State
Au8tin, Texar
Dear SIra
Ue aoknovledge reoei
ion OS to vhether or not The
from payment OS franohiae t
of Artl.ole 7084 of the Rev1
eQ by the 47th Leglrlature,
The Union T
Pettlbone, and other
poaea :
r the~purpore
ce ati operation of
t the City of Dalgae, :I’
country eurtiou@ing
a, ath all of the
on terniinal railveya
tutee of the stats
0 relating to railroads; fmQ ee-
ight to lesue bonds In exceaa of lte
authoriteU capital stock and of conatruating, meln-
taining and operating paseenger and freight eta-.
tiono, railroad yards md other facilities necee-
sary or proper to afford mrminal faciLltiea to
all railroade nov or here e&ering the City of
Honorable Wm. J. Lavaon, page 2
Dallae, Texan, and the right.to exercise a.&1 oth-
er pavers nov or hereafter waiferred by the Zave
of the State of Texa& on terminal rsllvay compen-
Lee and aubjeot to the provlsione of an aot taae-
ed by the 32nd Isgialmture af the State of 8 +xea
and approved by the Qovernor of Texas on tfLe POth
day of March, 1911, relating to wharf and terminal
compmnien. *
The artlulea of lmorporatlckq provided for the iesu-
tmoe of 480 eharee of stoak vlth a par value of $100 each.
On April 1, 1912, the terminal company, 8 railroads
and Continents1 and Commerolcrl Trust and Savlqa Bank, entered
Into whet ~88 known ar mn “Operating, Agreement vherein it ir
etated that mid rallvay companlee vere lntereeted in reouring
an eaommloal, efficient and eatl8faotory eyatem of handl%ng
railvay traffic vlthln and through the City of Dells6 .&nd that
the rallvmy mmpanler derired, to unite Lo the eatabliebment of.
joint tbrmlnal pmrrcrengerfaeilltles and In the cont?true$l& uld
Oper8tiOn of a union atatlon Sor the uae of .rald reilvay aom-
paniee and other railvay oompanler vhioh might be admltted.
That’ in order to effectuate such purporea and deetie the rail-
vay companS.ea had oaueed to be organized The Union Terminal Com-
pany, the et@c of vhioh vae owned 60 nhmree by each of the 8
railvmy companlea.
Tb further effectuate eaid dealrea and pwosea The
Unlon Termhal Company negotlsted a loan of $5,000,000 from
the Continental end Commeroial Trurt and Saving8 BE& and exe-
outed bonds. and a mortgage on all property then wmed or there-
after applied to secure aald indebtedneae. Eaoh rallvay oom-
p8ny alao agreed to and did tranel’er and aealgn to the Continent-
al and Commercial Trust and Savings Bank, ae trustee, 5% of ite
60 aharea cif stock in The Union Terminal Gompeny to aeoure the
due and punctual peri’ormanoe of the agreement betveen the par-
tie@ thereto. The railway companlea further agreed to pay the
intereet and principle on said bonde and on other fixed charges
and taxes in the maintenance and operation of’ The Union Termi-
Ml company.
Article 7084, R,evleed Civil Statutee, 1925, Subaeo-
tlon (a) provldee for a fianehiae tax on all domeatlo and for-
eign corporation8 chartered or authorized to do buairiesein
Texas.
Honorable Urn. J. Lawron, p8ge 3.
Subaeotlon (c) of said Article areatee 8n exemption
88 follolirI
"Provided, h&ever, thet thin article ah811
not apply to oorporationa organized 8a termln81
oompanies not organired for profit, mnd h8vlng
no lnaome from the burlness done by them. . . ."
It her been held m8ny tlmen that the fr8nehlee t8x 1s
not 8 tmx on property or lnoome, but that it lr 8 ohrrge rude
by the State agalnrt 8 oorpor8tlon for the privilege granted
to do business in the State. United llorth 8nd South l?evelo$ment
Co. ,v. Heath, 78 5. Y. (2d) 650.
But the Leglelature h8a leen fit by Artlole 7084 rub-
re@ilon (o), wpr8, to exempt thore aorpowtionfi whlahr (15 8re L
orgenlted ar termln81 oomp8nler; (2) h8ve no lneome from burlnerr
'done by them, 8nd (3) not organlred for profit.
It 18 element8ry that t8x8tlon la the gener+l ru&e 8nd
exeniptlon from tustlon the exoeptlon. All perrom or aorporm-
tlona olalmlng 8n exemption from tmxatio@ muat bring.themrelver
Olearly vlthln the exoeptlon beasuoe the rtetute grmntlng ruoh
exemption murt be rtrlctly oonetrued.
The feat that The Union Termln81 Oemp8ny 18 a oorporr-
flon orgmnlaed aa a termln81 oomp8n3 need8 no dlma~rlon~
The eeoond faot to be detemlmd18 vhether & not
Ifb;" Union Tersainrl Company has inoome from the bualnear d&e by
.
e.
The Legialatwe h88 not eeen fit to define Wh8t 10
memnt by the term "lnoome." Thet being true ve are required br
the ruler of statutory oonstruotlon to give the term it8 aomiaon
8nd ordinary aaceptatlon.
In Volume 4, Worda mnd Phr88011, FlrUt Series, pegs 3504,
it la stated:
"The term ~Inaome* ordln8rlly mew ithat
whloh comes Into or la received. -by..- buainese
or Investment of aapltal, rithout referenfae to
outgoing expenditures. ( ".
Honorable MU. J. UWMn, Ppge 4
In the oeae of Eouaton Belt and Termin Comp8ny v.
Clark, 122 S. W. (26) 358, the Court of Civil Appeala, ln dia-
aurrring the exemption here in quaation on 8n OrgMit8tiOn very
similar to The Union Terminal Cornpang, held that:
"The etstutea used the vord 'lnoome@ or the
phreae *income from bualneaa done by them,@ in the
aenae of 8Il.yinCOme, 6s dlMd.ngulrh6d from net
Income. *
Aa.heretofope ahovn The Union Termin Compmy vm; or-
ganized to aonduct 6 term&81 aad it h8a ereoted buildinga, treaka,
aheda, eta., to carry on itr tex%&81 bualneaa.
It appe8ra from the f8ota~ aubmltted that The Union Ter-
minal Compeny h8a received lnaome frqm bualneaa dono by It. Among
other iteme OS inoome ir the sum of 4272,671.07 total rent in-
oome from January l., 1940, to m,ember 31, 1940. There 8ri 8bJ
ltema for rental of 8p8ee, rush 88 43500 from the Union Reur.Com-
pony, 900 from bonded Tranalt Comp8ny, @50 from Interstate Com-
pay, 1900 from Pullman Oompuny sad $l200 from Da11813 Interahmge
mnd Inspeation Bureau. It m8y be srgued that the money reoolred
from rental of office ap8oe la aot lnoome from bualnera done. If
the money reoeived for rental of offloe apace la not oonaldereb
8 p8rt of the revenue from then operation of the termlnel f6olll-
tier auah f8ot does not preol&@e the lnol~alon of auoh inoome be-
08~8 the 8t8tUte doee not requ$re *8t only the money it reo8lvea
'from the opamtlon of the termln81 hollltlea,but fsom 8Zl~bual-
near done by the aOrpOr8tiOn. In the ueae of Potom80,glsctrlc
'.Pover Co. v. Rudolph, 29 Fed. (ad) 6226 (aertlor8rl denied, -278
U. 8. 656) the aourt arida
"There la no rule vhiah petit.0 8 aou& to 68y
that the meemre of 8 tPX for the privil6ge Of do-
bualneaa, vhere income from property la the baala,
muat be limited to that derived fmui property vhi&.
nay be atrlotly smld to be actually used in the
bualnees.'
..'
Certainly the a8m~ rule vould apply to the oonatruatlon
of 6 tax exempt atatute unleaa 8 olear l&tint to the oontrsry 18
shown. Suoh intent Is not ahovn In the &state here under oon-
alderatlon.
lionorable Wm. J Zaveon, page 5
It la therefore apparent th8t The Union Termin Oom-
pany hma Income from buelneea done by It.
Uhether or not the Union Terminal Company vae 'organ-
ised for profit" present8 a more difficult problem.
The Union Termin Company~lr entitled to all of the
.prlvilegee granted It qnder the etrtute vhereby It v8a lnoorpormt-
ed 8nd 18 burdened by the dutlea required of It by l8v. For ln-
etanoe 8lI auoh termiM1 OOI&p8Iii808re 88 8 m8tter of lav aoIpplon
omrrlara 8nd at much me aubjeat to regulmtlon by the Rell.vomd
Uormieelon. It m8y be requlr&d to not only furnlrh Its faafll-
tie8 to Rallromds vho 8re not-ovnera of its etoek, but the revenues
it, reoelvee ah811 be fixed by l&e C~eeion. Certmlnlg 8ny rate8
for the use of the fmcU.ltlee vhlah ml$ht be fixed by*the.B811-
romd Commlaalon would bg 8~ 8 m8tter of lav; required to be rush
ti 8aount~ as to lnaure to The Terminal Oompeny 8 re4aonable+e-
turn an Its lnveatment. The rellny aomp8nler and The Unlcin Ter-
,&181 Company agreed that the termln81 00apMy vould 8qqtIh8,’
oanetruot and operate neaesaary treeka, lmndu 8nd ather~termh8l
~trcrllltlea and oonetruat a pmrrrenger atetlon in order to furnleh
th6 8811~8~ ccq8nlea ln eaonomloel, efffaient and ctmtlafurtory
ay8tem of h8ndlN their peeaenger trefflo.
By the Operating
Agreement of Ap~ll 1, 19X!, r Unlon
Tsrminml.Camp8ny, ln oonelder8tlon of the rua-66 be & by the
Nllvey aompM.iea, 8greed to MQu3xe neaeae8ry reti estate 8nd
ooamtruat the neae888ry union at8tiona aa& 8180 iw8nted:the use
of ita termlxwl Seollitlea, eubjeat to aertejn c&lltlonaj to
iald railvmy oompsniea for 99 years. By asid.agreement the.~8
roilv8y aomp8nlea e8Oh agreed to p8y, seveP411$ 118th of the
tiount of Interest and px%nalple of the &5,000,000 Firit 9lortg8ge
Bandaj to pay, aeverelly, l/&h of the 8mount, prlnalple 8nd ln-
tereat, of 811 other bonds; to p8y 1/8tb of 8U ewe SoPtfre
'Le88lng or aaqulrltlon.of f8ollltlea for the uee of the rsilvey
a6mpsnlee; to pay l/&h of 811 t8xe8, rates, levieo, benefit,.,
isreesmenta 8nd other government81 oh8rges of every kindi It VI8
further agreed thrt all income or oherges vould be used to defrmy
the operation expenaea aa far 8a possible and th8t the remainder
tiould be p8ld by the rallvay oomp6nlea on a monthly UeeF b8sl8.
Bat only hmr The Union Termln81 Compang provided for
all of ita initial ooate or oapital, lntereet ah It8 indebtednear
6‘
h
225 .,,,.,,ii
Eonorable Wm. J. I,ayaon, page 6
and all operating expenses but it hze mzde provirion for the
retirement of Its bonded lndebtednesr vhlch vould at maturity
thereof leeve all of ite aasetr free of debt.
The term “profit’ az applied to a burlners organlzs-
tion i& held to lnolude and cover benefit6 of every kind in
exaeaa of coete or expenses, and profit in burinesc has been
held to include all gain, advanoe In the value of,auaeta, good
vi13 and dividende, in exceze of and beyond e z$ltures. Vol-
ume 6, Uorda and Phrarer, First 8erlez, page
The Union Temlnal Company haa taken care in a rather
Lngeniour manner to eee that it dooe make a profit. St ham con-
traated to the effect thet et some time in the future it will
.ovn p;11 of ite very valuable property vlthout a debt of zny kind.
In faot on April 1, 1942, it would have acoomplizhed thlr rezult,
iiut “out of the goodneer of It8 heart’ it granted to the railway
oompaniea on February 1, 1937, an extenzion of the time for the
payment of the 45,000,OOO bonded lndebtedneze by refundlng the
Wtidt vlth another $5,000,000bond izaue to mature on February
a;. 1967.
lie do not think it van the Intention OS the Leglela-
ture to require a termlnEi1 oompzny to not make a profit on a
dally, monthly or yearly bazie. But on the oontrmy that if
it mar vithln the oontemplation of the partlee prior to and at the
time OS the organization that a profit zhould be ma& or that the
orgzulzat$on van oapzble of meking a profit then it should not
be exempt:.
Rot only will The Union Terminal Company-zmke a very
rubztantlal prof,lt but the oontemplzttion of the parties vho in-
corporated The Union Terminzl Company I.8 very forcefully rhovn
vhen they oontracted to deliver all of the aherea of etoak, ex-
oept 2 for each railway oompzny, to the trustee noml.nated in
the trust agreement of April 1, 1912, and agreed In mid agree-
ment. that ruch trurtee would receive and oolleot all dividend*.
Mhzt are dividends if not profit.
In the eaee of Houeton Belt and TermIns Railway Co.
v. Unlted States, 250 Fed. 4, the court ssidr
“It may be that the tenant oompaulee (reil-
vay compznlea), orgaulzed the terminal compzxqto
provide a convenient joint a enoy for the perforar-
ante of certain of their dut f 8s as oarrlerk!, and
Bonorable Wm. J. Idwon, pzge 7
with no view to profit to be derived fran! ltz
organlzetlon. It VW, however, legally organized
ae a oorporat.ion oapable of earning and paying
dlvldenda to lta stookholdere, and the fact that
It hae not done eo doee not make It the leez a
oorporatlon engaged In the burlnezm and organized
Sor profit, vlthln the meaning of the corporation
tax law. .Proflt from an organleation and opera-
tion could result with etookholdera in other vzya
than ln dlvldendr.’
We are therefore of the opinion that The Union Terminal
C0mp8ny vae OrgEd.Zed iOr profit.
In view of the foregoing you fuw rezpeotfully sdvlaed
tlacst The Union Terminal Oompany lr got oxem t from the payment
of frenchlee tax ae provided by Article 70 SE, Revlred Givll Stat-
utea, 1925, 88 amended.
Youra very truly
ATTCBllgy OBBBtAL OF TFZAB
RHC;db | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289034/ | J-A08043-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMAL STREATER, :
:
Appellant : No. 1504 EDA 2015
Appeal from the Order Entered May 5, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013825-2014
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 27, 2018
Jamal Streater (Appellant) appeals from the May 5, 2015 order
denying his motion to dismiss, which alleged that the Commonwealth’s DUI
prosecution was barred by the compulsory joinder statute, 18 Pa.C.S. § 110.
Upon review, we affirm.
We glean the following factual and procedural history from the record.
On May 19, 2013, Appellant was stopped for a motor vehicle violation. He
was arrested and charged with driving under the influence (DUI) and was
issued a traffic citation for driving without headlights. On July 23, 2013,
Appellant was found guilty in absentia of the traffic offense in Philadelphia
Municipal Court–Traffic Division. Thereafter, Appellant’s DUI charge
proceeded to the Philadelphia Municipal Court–General Division. Appellant
filed a motion to dismiss the DUI charges based on compulsory joinder.
*Retired Senior Judge assigned to the Superior Court.
J-A08043-18
Specifically, Appellant argued that the former prosecution of the traffic
offense barred the prosecution of the DUI charge pursuant to 18 Pa.C.S.
§ 110(1)(ii). The court denied the motion and Appellant was found guilty of
DUI on December 4, 2014. Appellant appealed the DUI conviction to the
Court of Common Pleas for a trial de novo, and filed another motion to
dismiss pursuant to 18 Pa.C.S. § 110(1)(ii) before that court. On May 5,
2015, the trial court denied the motion. This timely-filed appeal
followed.1, 2, 3
On appeal, Appellant argues that compulsory joinder required that the
Commonwealth prosecute him contemporaneously for the DUI charge and
1 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the trial court
did file a 1925(a) opinion.
2 “Because the protection of the compulsory joinder of charges statute is in
the nature of protection against double jeopardy, an order denying a motion
to invoke that statute’s protection is similarly subject to immediate appeal.”
Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007) (citations
omitted).
3 This Court granted a continuance at the request of the parties pending the
en banc decision in, inter alia, Commonwealth v. Perfetto. Per Curiam
Order, 11/15/2016. The en banc decision in that case was filed on August
30, 2017. Commonwealth v. Perfetto, 169 A.3d 1114 (Pa. Super. 2017)
(en banc), appeal granted, 182 A.3d 435. Though our Supreme Court
granted Perfetto’s petition for allowance of appeal on February 27, 2018,
that case is still pending and the en banc panel’s decision remains controlling
law until our Supreme Court holds otherwise. We note that supplemental
briefs were not filed in the instant case following the en banc panel’s
decision.
-2-
J-A08043-18
the traffic offense because they were part of the same criminal episode.4
Because the Commonwealth prosecuted him solely for the traffic offense
4 The Commonwealth alleges that Appellant waived his right to file a motion
to dismiss before the trial court because he elected to forgo review of the
denial of his first motion to dismiss under a writ of certiorari, and instead
proceeded to a trial de novo. The Commonwealth cites Commonwealth v.
Perillo, 626 A.2d 163, 168 n.6 (Pa. Super. 1993) for the proposition that a
“defendant who acquiesced to retrial waived claim that trial was barred[,]”
but that is not what the footnote states. Appellant’s Brief at 5.
We note, however, that appellant misstates the law in claiming
that double jeopardy cannot be waived and may be raised at any
time, even after trial and verdict. See appellant's brief at 19.
In Commonwealth v. Gilman, [] 401 A.2d 335 ([Pa. ]1979),
the [S]upreme [C]ourt held that a defendant waived his claim
that retrial amounted to double jeopardy because he did not
move to dismiss prior to retrial on a felony murder
charge. See also Commonwealth v. Peters, [] 373 A.2d 1055
([Pa. ]1977) (defendant waived double jeopardy claim by
failure to raise it prior to second trial). Contrary to
appellant’s assertions, Commonwealth v. Beck, [] 464 A.2d
316 ([Pa. ]1983), stands for the limited proposition that the
doctrine of waiver has no application where the defendant was
acquitted of the charge in the previous trial.
Perillo, 626 A.2d at 168 n.6 (emphasis added).
“A trial de novo gives the defendant a new trial without reference to
the Municipal Court record; a petition for writ of certiorari asks the Common
Pleas Court to review the record made in the Municipal Court.”
Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015)
(citation omitted) (holding that issue of whether appellant was timely tried in
Municipal Court became moot when he decided to forgo review of that
motion by writ of certiorari and instead proceeded to a trial de novo). A trial
de novo does not allow relitigation of pretrial motions, such as a motion to
suppress. Commonwealth v. Harmon, 366 A.2d 895 (Pa. 1976).
Here, Appellant argued that any trial, including his de novo trial, for
the DUI charge is barred by the compulsory joinder rule because the
(Footnote Continued Next Page)
-3-
J-A08043-18
first, Appellant argues that the trial court erred in denying his motion to
dismiss the subsequent DUI case. Appellant’s Brief at 4.
Appellant’s claim raises a question of law; therefore, our standard of
review is de novo and our scope is plenary. Commonwealth v. Fithian,
961 A.2d 66, 71 n.4 (Pa. 2008).
The compulsory joinder statute sets forth the requirements for when a
current prosecution is barred by a former prosecution for a different offense.
Although a prosecution is for a violation of a different provision
of the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
***
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the
former prosecution unless the court ordered a
separate trial of the charge of such offense[.]
(Footnote Continued) _______________________
Commonwealth decided to try him separately for the traffic offense first.
The fact that Appellant previously filed a motion to dismiss is irrelevant
because a trial de novo does not consider the municipal court record.
Moreover, because he was facing a retrial, Appellant had to file a new
motion to dismiss or waive that issue for appeal. See Perillo, supra.
Accordingly, we are not persuaded by the Commonwealth’s waiver
argument.
-4-
J-A08043-18
18 Pa.C.S. § 110(1)(ii).
Here, Appellant was charged in the city and county of Philadelphia with
a traffic offense and DUI arising from the same criminal episode. The
Commonwealth prosecuted the traffic offense first, and following that
conviction in absentia, proceeded on the DUI charge. Generally, 18 Pa.C.S.
§ 110(1)(ii) would bar the subsequent prosecution of Appellant’s DUI charge
because it arose out of the same criminal episode within the same judicial
district that triggered his former prosecution for the traffic offense.
However, an en banc panel of this Court recently examined a factually
similar situation, and found that because of the “jurisdictional exceptions
applicable to Philadelphia,” compulsory joinder does not bar the prosecution
of a DUI charge following a conviction for a traffic violation in Philadelphia
Municipal Court–Traffic Division, even though the DUI charge and the traffic
offense stem from the same criminal episode. Perfetto, 169 A.3d at 1116.
In Perfetto, the defendant was stopped in the city and county of
Philadelphia and charged with several counts of DUI, as well as a traffic
offense for driving without lights. Perfetto was found guilty in absentia for
the traffic offense in the Philadelphia Municipal Court–Traffic Division.
Subsequently, he was prosecuted on the DUI charges in the Philadelphia
Municipal Court–General Division. Following a preliminary hearing, Perfetto’s
case was listed for trial in the Court of Common Pleas. Prior to trial, Perfetto
-5-
J-A08043-18
filed a motion to dismiss pursuant to 18 Pa.C.S. § 110(1)(ii). The trial court
granted Perfetto’s motion, finding that the 2013 merger of the formerly
separate Traffic Court with the Philadelphia Municipal Court “brought [the]
charges within the jurisdiction of the same court, and [] the policy aims of
18 Pa.C.S. § 110(1)(ii) dictated that the secondary prosecution be barred.”
Id. at 1116-17. The Commonwealth appealed, and the matter was certified
to an en banc panel of this Court.
On appeal, this Court focused on the 2002 amendment to 18 Pa.C.S.
§ 110(1)(ii), which removed the phrase “was within the jurisdiction of a
single court[,]” and replaced it with “occurred within the same judicial
district.” Perfetto, 169 A.3d at 1119 (quoting 18 Pa.C.S. § 110(1)(ii)). We
concluded that
the amended language of Section 110 is clear and unambiguous,
and it requires a court to consider not the jurisdiction of a court,
but rather whether multiple offenses occurred within the same
judicial district. If so, and provided the prosecutor is aware of
the offenses, all charges shall be joined and prosecuted
together. Thus, the addition of the “same judicial district”
language requires that all charges occurring within the same
judicial district, arising from the same criminal conduct or
criminal episode, and known to a prosecutor, shall be joined at
the time of commencement of the first prosecution.
Id. at 1120 (emphasis in original; citation omitted).
Thus, the fourth prong of the four-prong test to determine whether
compulsory joinder applies in a given case was modified following the 2002
amendment as follows:
-6-
J-A08043-18
(1) the former prosecution resulted in an acquittal or conviction;
(2) the current prosecution was based on the same criminal
conduct or arose from the same criminal episode; (3) the
prosecutor in the subsequent trial was aware of the charges
before the first trial; and (4) all charges [are] within the
same judicial district as the former prosecution.
Id. at 1119 (emphasis in original; citations omitted).
As in Perfetto, there is no question that in the instant case, the first
three prongs were satisfied. Rather, the issue narrowly focuses on the
fourth prong of the test. In that regard, Appellant argues that the trial court
erroneously focused on a “jurisdictional” element, which he claims is no
longer part of the four-prong test following the 2002 amendment.
Appellant’s Brief at 11-12. However, this Court concluded in Perfetto that
jurisdictional considerations are still pertinent.
[W]hile jurisdiction is no longer an element of the compulsory
joinder test, the jurisdiction of a court remains a consideration
implicit to any compulsory joinder analysis, and it is particularly
important in those judicial districts that, for various reasons,
have distinct minor courts or magisterial district judges vested
with exclusive jurisdiction over specific matters.
Perfetto, 169 A.3d at 1121 (footnote omitted). This is particularly so in
Philadelphia, which has a unique jurisdictional organization compared to
other Pennsylvania jurisdictions.
In judicial districts with a designated and open traffic court such
as Philadelphia, 42 Pa.C.S. § 1302 expressly defines the
jurisdiction of a traffic court and effectively carves out an
exception to the normal operation of the compulsory joinder
rule.
***
-7-
J-A08043-18
This distinction requires that all summary traffic violations be
adjudicated in the traffic court of a judicial district. Therefore,
where a defendant is charged with a summary traffic violation, a
misdemeanor, and a felony, in judicial districts with a traffic
court, the Title 75 summary offense may be disposed of in a
prior proceeding in the traffic court, which has exclusive
jurisdiction to hear it, without violating the compulsory joinder
rule.
Id. at 1121-22 (footnote omitted). Thus, we must look at Philadelphia’s
unique jurisdictional structure in light of the compulsory joinder statute,
specifically as it pertains to the prosecution of cases involving a traffic
offense and a misdemeanor from the same criminal episode.
On June 19, 2013, the Philadelphia Municipal Court underwent a
restructuring wherein it absorbed the previously independent Traffic Court.5
The new Municipal Court comprises two administrative
sections, designated the General Division and the Traffic
Division. 42 Pa.C.S. § 1121. These divisions have unique
jurisdiction as defined in 42 Pa.C.S. § 1123(a) (relating to
jurisdiction and venue). Among the matters listed as within the
jurisdiction of the Philadelphia Municipal Court are prosecutions
for summary offenses arising under Title 75. 42 Pa.C.S.
§ 1123(a)(9)[.]
5 At oral argument, Appellant attempted to distinguish Perfetto because
Appellant was charged on May 19, 2013, before this restructuring, whereas
Perfetto was charged after the restructuring. This argument is specious.
While Appellant was charged prior to the restructuring, he was prosecuted
on his traffic offense following the restructuring, in the newly created
Philadelphia Municipal Court–Traffic Division, on July 23, 2013. His
prosecution on the DUI charge proceeded after that in the Philadelphia
Municipal Court–General Division. Thus, his prosecutions did not predate
the 2013 restructuring, and Perfetto is not distinguishable on that basis.
-8-
J-A08043-18
Id. at 1122. However, our Supreme Court has reassigned summary traffic
violations to the Philadelphia Municipal Court–Traffic Division. Id. at 1123.
Particularly, rules 1002 and 1030 of the Rules of Criminal
Procedure for the Municipal Court and the Philadelphia Municipal
Court[-]Traffic Division, as amended after June 19, 2013,
distinguish between non-traffic summaries and traffic
summaries, and their comments reinforce that the Traffic
Division has jurisdiction over traffic summary
offenses. See Pa.R.Crim.P. [] 1002, cmt. (“all summary offenses
under the motor vehicle laws ... are under the jurisdiction of the
Municipal Court[-]Traffic Division”); 1030, cmt. (“the jurisdiction
and functions of the Philadelphia Traffic Court were transferred
to the Philadelphia Municipal Court[-]Traffic Division”).
The aforementioned amendments, collectively, illuminate
our Supreme Court’s intent following the restructure to divide
the Philadelphia Municipal Court’s labor to allocate disposition of
summary traffic offenses solely to the Philadelphia Municipal
Court Traffic Division.
Id. at 1124 (footnote omitted). Given this jurisdictional structure, this Court
held that
in the context of compulsory joinder, where a defendant is
charged with a summary traffic violation and a misdemeanor,
the Title 75 summary offense must be disposed of in a
proceeding in the Philadelphia Municipal Court[-]Traffic Division,
which has jurisdiction exclusive of the Court of Common Pleas,
and a separate proceeding must be held for the remaining,
higher offenses.
Id.
Considering Philadelphia’s unique jurisdictional structure with the
compulsory joinder statute, the Perfetto Court held that, in Philadelphia,
compulsory joinder will not bar a prosecution for DUI arising out of the same
-9-
J-A08043-18
criminal episode as a traffic offense for which a defendant has already been
prosecuted in the Traffic Division.
Section 1302 carves out an exception to compulsory joinder and
directs that the summary traffic offense is within the exclusive
jurisdiction of the traffic court. A prior disposition of a summary
traffic offense in a traffic court does not bar the later prosecution
of other criminal charges which arose in the same judicial district
and at the same time as the summary traffic offense.
In sum, the amended language “occurred within the same
judicial district” found in Section 110 is clear and unambiguous.
Rather, a court must consider whether all charges occurred in
the same judicial district. Because of the implicit consideration of
jurisdiction, where summary traffic offenses are included in
multiple crimes charged, in those judicial districts which have a
separate traffic court, the summary traffic offenses may reach
disposition in a single, prior proceeding without precluding
subsequent prosecution of higher offenses. Where there is a
separate traffic court, the traffic court is charged with disposing
with the summary traffic violation(s) of the crimes charged
without violation of the compulsory joinder rules. In those
judicial districts which do not have a separate traffic court, the
four-prong test compulsory joinder must be applied in order to
determine whether the compulsory joinder rules have been
violated.
Here, because of the unique jurisdictional organization of
the Philadelphia Courts, [Perfetto’s] subsequent DUI prosecution
is not barred.
Id. at 1124-25.
Like Perfetto, Appellant was charged with a traffic offense and DUI
from the same criminal episode occurring within the city and county of
Philadelphia. Like Perfetto, Appellant was tried first for the traffic offense in
the newly restructured Philadelphia Municipal Court–Traffic Division, and was
found guilty in absentia. Like Perfetto, the Commonwealth next proceeded
- 10 -
J-A08043-18
with Appellant’s DUI prosecution, and Appellant sought dismissal for a
violation of compulsory joinder. Accordingly, because Appellant’s
circumstances are practically identical to those of Perfetto, we find that for
the reasons stated by this Court in Perfetto, supra, compulsory joinder
does not apply, and the trial court did not err in denying his motion to
dismiss.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/18
- 11 - | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289036/ | J-S32038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT WILLIAM RUGGLES :
:
Appellant : No. 1920 MDA 2017
Appeal from the Judgment of Sentence August 4, 2017
in the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0002221-2015
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JUNE 27, 2018
Appellant, Robert William Ruggles, appeals from the judgment of
sentence imposed after his jury conviction of burglary, criminal conspiracy,
robbery, theft by unlawful taking, and harassment.1 We affirm.
We take the following facts and procedural history from the trial court’s
November 20, 2017 opinion and our independent review of the record. The
above charges resulted from the attempted robbery of Robert John Miller, in
his home, by Appellant, Bobbi Jo Rohrbach, and Braxton Moore.
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(1), 903, 3701(a)(1)(v), 3921(a), and 2709(a)(1),
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S32038-18
The one-day trial occurred on June 9, 2017. Co-defendant Rohrbach
testified against Appellant as part of a plea agreement. (See N.T. Trial,
6/09/17, at 58, 65). She testified that, in the late evening of September 6,
2015, she met Appellant and Moore for the first time when she was at the
apartment of a friend.2 (See id. at 60-61). They were at the apartment for
approximately twenty minutes. (See id. at 90). The three of them devised
a plan to rob Miller, an individual they thought to be a drug dealer, in his
apartment, with the intent of taking his drugs and money. (See at 63, 66-
67). Thereafter, the three went to the apartment of another friend, Cheryl
Savaro, who lived in the same building as Miller. While there, Appellant,
Rohrbach, and Moore agreed that Rohrbach would knock on Miller’s door, and
that Appellant and Moore would then rush in and steal drugs and money from
him. (See id. at 66-67). They were at Savaro’s apartment for approximately
ten minutes. (See id. at 90).
Pursuant to the plan, the three individuals went to Miller’s apartment,
knocked on his door, dragged him by his hair, and demanded drugs and
money. (See id. at 33-36, 68-69, 71-73). However, Miller was unable to
provide them with anything, because he, in fact, was not a drug dealer. (See
id. at 37). Rohrbach stated that they then fled, taking Miller’s cell phone.
(See id. at 73).
____________________________________________
2Rohrbach refers to Appellant by his nickname, “Mofo.” (See N.T. Trial, at
61-62).
-2-
J-S32038-18
At the conclusion of trial, the jury convicted Appellant of the above
referenced crimes. The court ordered a presentence investigative report
(PSI). On August 4, 2017, it sentenced Appellant to an aggregate term of not
less than eight nor more than sixteen years’ incarceration. The same day,
Appellant filed a post-sentence motion, which the court denied on November
20, 2017. Appellant timely appealed.3
Appellant raises three questions for this Court’s review:
I. [Whether] the trial court erred in admitting (and failing to
suppress) the testimony of co-defendant Bobby Jo Rohrbach . . .
when the Commonwealth denied [Appellant’s] request for a
Wade[4] hearing concerning . . . a photocopy of the image used
by co-defendant Bobby Jo Rohrbach which had been substantially
altered from the state in which it was used for an identification[?]
[II.] [Whether] the trial court erred by failing to give the missing
witness instruction as to Officer Mohl[?]
[III.] [Whether] the evidence presented was insufficient to
sustain the verdict; [whether] the jury verdict was against the
weight of the evidence[?]
____________________________________________
3On January 10, 2018, Appellant filed a timely statement of errors complained
of on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on January 11, 2018, in which it relied on the reasons
stated in its November 20, 2017 opinion denying Appellant’s post-sentence
motion. See Pa.R.A.P. 1925(a).
4Commonwealth v. Wade, 33 A.3d 108 (Pa. Super. 2011), appeal denied,
51 A.3d 839 (Pa. 2012).
-3-
J-S32038-18
(Appellant’s Brief, at 1-2) (unnecessary capitalization omitted; citation
formatting provided).5
In Appellant’s first issue, he maintains that the trial court erred in
admitting the testimony of Rohrbach on the basis of an “impermissibly
suggestive” identification procedure. (Id. at 5; see id. at 4-15). Appellant’s
issue does not merit relief.
It is well-settled that “[t]he admission of evidence is a matter vested
within the sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its discretion.”
Commonwealth v. Rashid, 160 A.3d 838, 842 (Pa. Super. 2017), appeal
denied, 170 A.3d 976 (Pa. 2017) (citation omitted).
Generally, in reviewing the propriety of identification
evidence, the central inquiry is whether, under the totality of the
circumstances, the identification was reliable. The question for
the suppression court is whether the challenged identification has
sufficient indicia of reliability to warrant admission, even though
the confrontation procedure may have been suggestive.
Suggestiveness in the identification process is a
factor to be considered in determining the
admissibility of such evidence, but suggestiveness
____________________________________________
5 Page numbering provided by this Court. We note that Appellant’s brief
violates multiple Pennsylvania Rules of Appellate Procedure. For example, it
does not contain page numbers, see Pa.R.A.P. 2173; a table of contents and
citations, see Pa.R.A.P. 2174; or a statement of jurisdiction, statement of the
scope and standard of review, statement of the case, summary of the
argument, or copy of Appellant’s Rule 1925(b) statement, see Pa.R.A.P.
2111(a)(1), (3), (5), (6), (11); see also Pa.R.A.P. 2101 (“[I]f the defects are
in the brief . . . of the appellant and are substantial, the appeal or other matter
may be quashed or dismissed.”). However, because these errors do not
preclude our meaningful review, we will not find waiver on this basis.
-4-
J-S32038-18
alone does not warrant exclusion. A pretrial
identification will not be suppressed as violative of due
process rights unless the facts demonstrate that the
identification procedure was so infected by
suggestiveness as to give rise to a substantial
likelihood of irreparable misidentification.
In determining whether a particular identification was
reliable, the suppression court should consider the opportunity of
the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of [her] prior
description of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and the
confrontation. The opportunity of the witness to view the actor at
the time of the crime is the key factor in the totality of the
circumstances analysis.
Commonwealth v. Bruce, 717 A.2d 1033, 1036-37 (Pa. Super. 1998),
appeal denied, 794 A.2d 359 (Pa. 1999) (citations and quotation marks
omitted).6
Here, the court admitted Rohrbach’s testimony, finding that the
identification procedure was not so suggestive as to raise a substantial
likelihood of misidentification. See id. The totality of the circumstances
supports the court’s decision.
On September 8, 2016, Police Officer Mohl7 showed Rohrbach
Appellant’s photograph, and asked her if she could identify him. (See N.T.
____________________________________________
6 In the argument section of his brief, Appellant cites to Wade one time, and
then mentions “Wade factors” twice, without actually identifying what they
are. (Appellant’s Brief, at 9, 12; see id. at 8). Upon review, they are nearly
identical to the factors identified in Bruce, supra. See Wade, supra at 114.
7 Officer Mohl’s first name is not mentioned in the certified record.
-5-
J-S32038-18
Trial, at 105). She immediately identified the man in the picture as Appellant,
her co-conspirator in the criminal events. In finding that the identification
procedure was not overly suggestive, the court observed that Rohrbach was
not only a witness to the crime, but also Appellant’s co-defendant. She spent
half an hour with Appellant prior to the attempted robbery, talking with him
to plan how they would commit the crime.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in allowing the admission of Rohrbach’s testimony. See Rashid,
supra at 842. Appellant’s first issue lacks merit.
In the second issue in the argument section of his brief, Appellant
maintains that the trial court erred in admitting the testimony of Rohrbach
about the photograph8 she identified because the Commonwealth committed
a Brady9 violation. (See Appellant’s Brief, at 15-26). Specifically, he argues
that, because he was not aware that the photograph identified by Rohrbach
contained investigative notes before the jury was selected, he was not able to
question them during voir dire about what effect such evidence would have
on them. (See id. at 25-26). This issue is waived.
____________________________________________
8Appellant, not the Commonwealth, introduced the photograph at trial. (See
N.T. Trial, at 87). Moreover, defense counsel was the only attorney who
questioned Rohrbach about it. (See id. at 87-88, 105).
9 Brady v. Maryland, 373 U.S. 83 (1963).
-6-
J-S32038-18
First, we observe that Appellant failed to include a Brady issue in his
statement of questions involved. (See id. at 1-2); see also Pa.R.A.P. 2116(a)
(“No question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”). Additionally, Appellant
failed to include a Brady claim in his concise statement of errors raised on
appeal. (See [Appellant’s] Statement of the [Errors] Complained on Appeal,
1/10/18, at unnumbered pages 1-2); see also Commonwealth v. Johnson,
107 A.3d 52, 69 n.7 (Pa. 2014), cert. denied, 136 S. Ct. 43 (2015) (finding
issue waived for failing to raise it in Rule 1925(b) statement). Therefore, for
these reasons, Appellant’s issue is waived.10
In his next issue, Appellant argues that “the trial court erred by failing
to give the missing witness instruction as to Officer Mohl.” (Appellant’s Brief,
____________________________________________
10 Moreover, we briefly note that the issue would not merit relief. “The crux
of the Brady rule is that due process is offended when the prosecution
withholds material evidence favorable to the accused. . . . To establish . . .
Brady violations, [a defendant has] to prove that the Commonwealth willfully
or inadvertently suppressed impeachment evidence and that prejudice
ensued.” Commonwealth v. Wholaver, 177 A.3d 136, 158 (Pa. 2018)
(citations omitted). Here, the Commonwealth produced the photograph prior
to trial, so it did not commit a Brady violation. Moreover, Appellant was not
prejudiced by his inability to question the jury about what effect investigative
notes on a picture would have on them because such questioning is not
permitted. See Commonwealth v. Delligatti, 538 A.2d 34, 41 (Pa. Super.
1988), 552 A.2d 250 (Pa. 1988) (“[P]ermissible questions for voir dire
purposes . . . should be strictly confined to disclosing the prospective jurors’
ability to render a fair and impartial verdict and whether the jurors have
formed a fixed opinion as to the accused’s guilt or innocence.”). Therefore,
this issue would lack merit, even if not waived.
-7-
J-S32038-18
at 26 (unnecessary capitalization omitted); see id. at 26-27). This issue does
not merit relief.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation
omitted). In addition:
The trial court is not required to give every charge that is
requested by the parties and its refusal to give a requested charge
does not require reversal unless the Appellant was prejudiced by
that refusal.
A missing witness instruction may be given in limited
circumstances. When a potential witness is available to only one
of the parties to a trial, [] it appears this witness has special
information material to the issue, and this person’s testimony
would not merely be cumulative, then if such party does not
produce the testimony of this witness, the jury may draw an
inference that it would have been unfavorable.
Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017), appeal
denied, 2018 WL 1611472 (Pa. filed Apr. 3, 2018) (citations and quotation
marks omitted).
Here, the Commonwealth did not present Officer Mohl, the officer who
questioned Rohrbach about the photo, at trial. Appellant argues that this
rendered defense counsel unable to ask him about the photograph’s condition
at the time he showed it to her. However, other than stating that Officer Mohl
was unavailable to the defense because he is a police officer, Appellant fails
to support the claim by providing evidence that his attempts to subpoena the
-8-
J-S32038-18
officer for trial, in fact, proved unsuccessful. See Commonwealth v.
Echevarria, 575 A.2d 620, 625 (Pa. Super. 1990) (“When defendant fails to
subpoena a witness who is known and available to him, even if that witness
has special information material to the issue which would not be cumulative,
he is not entitled to the ‘missing witness’ charge.”) (citation omitted).
Additionally, defense counsel cross-examined Rohrbach on her
identification of Appellant in the photograph, and she responded that she did
not notice any notes, only the picture. (See N.T. Trial, at 87, 105). Therefore,
Officer Mohl’s testimony about whether there were or were not notations on
the photograph when he showed it to Rohrbach was immaterial. Hence, the
trial court did not abuse its discretion when it determined that Appellant was
not entitled to a missing witness instruction. See Commonwealth v.
Pursell, 724 A.2d 293, 308 (Pa. 1999), cert. denied, 528 U.S. 975 (1999)
(missing witness instruction not required “where the testimony of a witness is
comparatively unimportant”) (citation omitted); see also Miller, supra at
645; Yale, supra at 983.
In his next issue, Appellant argues that “the evidence presented was
insufficient to sustain the verdict; the jury verdict was against the weight of
the evidence.” (Appellant’s Brief, at 27; see id. at 27-28). This issue lacks
merit.
Before reaching its merits, we observe that Appellant’s claim is waived
for his failure to provide any legal citation or discussion thereof in his one-
-9-
J-S32038-18
page argument. (See id. at 27-28); see also Pa.R.A.P. 2119(a)-(b);
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”) (citation omitted).
In addition, we note that, although Appellant frames his issue as a
challenge to both the sufficiency and weight of the evidence, in fact, it only
raises weight claims. He correctly states that his issue alleging inconsistencies
in Miller’s testimony challenges the weight of the evidence. (See Appellant’s
Brief, at 28). However, his allegation that Miller and Rohrbach’s prior
convictions for crimes of dishonesty render them incredible, also goes to the
weight of the evidence, not sufficiency, as claimed by Appellant.11 (See id.);
see also Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011),
appeal denied, 34 A.3d 828 (Pa. 2011) (“Directed entirely to the credibility of
____________________________________________
11 Specifically, Appellant argues that the witnesses’ testimony “should have
been impeached and determined to be incredible” because they “have
extensive criminal histories which include multiple crimes of dishonesty.”
(Appellant’s Brief, at 28). We interpret this to be an inartful allegation that
the jury should have found the witnesses incredible due to their previous
convictions for crimes of dishonesty, not that trial counsel should have
impeached the witnesses. The same attorney served as Appellant’s trial and
appellate counsel, and he did impeach the witnesses about their criminal
history. (See N.T. Trial, at 53-54, 115-16).
- 10 -
J-S32038-18
the Commonwealth’s chief witness, [a]ppellant’s claim challenges the weight,
not the sufficiency, of the evidence.”).
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Colon-Plaza, 136 A.3d 521, 529 (Pa. Super. 2016)
(citation and emphasis omitted).
Here, the trial court found that Appellant’s issue lacks merit because the
jury was entitled to assess the credibility of the witnesses and determine the
weight to give to their testimony. (See Trial Court Opinion, 11/20/17, at 7).
We agree. The claims Appellant raises, that the victim did not see his face
and gave conflicting testimony, and that he and Rohrbach had prior
convictions for crimes involving dishonesty, were for the jury to consider in
rendering its verdict. See Commonwealth v. Scott, 146 A.3d 775, 777 (Pa.
Super. 2016), appeal denied, 166 A.3d 1232 (Pa. 2017) (“[T]he trier of fact
while passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.”) (citation
omitted). The trial court did not abuse its discretion in finding that the verdict
- 11 -
J-S32038-18
was not against the weight of the evidence. See Colon-Plaza, supra at 529.
Therefore, Appellant’s issue would lack merit, even if not waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
- 12 - | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4288693/ | Fourth Court of Appeals
San Antonio, Texas
June 25, 2018
No. 04-18-00407-CV
TRINITY MESA REAL ESTATE SERVICES, LLC and Matthew Coale,
Appellants
v.
SERVICE LIFE & CASUALTY INSURANCE COMPANY,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-05243
Honorable Cathleen M. Stryker, Judge Presiding
ORDER
The reporter’s record is due July 18, 2018, but has not been filed. On June 21, 2018, the
court reporter, Mary Helen Vargas, filed a notification of late record stating that she had notified
counsel for appellants that she had received a copy of the notice of appeal and requested that
counsel provide her with a designation of record so that she could provide him with an estimate
of costs for preparation of the reporter’s record. However, she has not yet received a response.
She also noted that due to the failure to provide a designation, leading to her inability to provide
an estimate for payment, she cannot prepare and file the record because appellants have not paid
or made arrangements to pay the reporter’s fee to prepare the record and they are not entitled to
the record without paying the fee. See TEX. R. APP. P. 34.6(b), 35.3(b).
Accordingly, we ORDER appellants to provide written proof to this court on or before
July 5, 2018 that: (1) they have provided court reporter Mary Helen Vargas with a designation of
record for purposes of appeal; and (2) that either the reporter’s fee has been paid or arrangements
satisfactory to the reporter have been made to pay the reporter’s fee, or appellants are entitled to
the record without prepayment of the reporter’s fee. See id. R. 35.3(b). If appellants fail to
respond within the time provided, appellant’s brief will be due thirty days after the date the
clerk’s record is filed in this court, and this court will only consider those issues or points raised
in appellants’ brief that do not require a reporter’s record for a decision. See id. R. 37.3(c).
We order the clerk of this court to serve a copy of this order on all counsel, the court
reporter, and the district clerk.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court | 01-03-2023 | 06-26-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4390218/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BRANDON FLINT, )
)
Appellant, )
)
v. ) Case No. 2D18-2069
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed April 24, 2019.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Polk County; William D. Sites, Judge.
PER CURIAM.
Affirmed.
CASANUEVA, MORRIS, and ATKINSON, JJ., Concur. | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142345/ | OFFICEOFTHEAITORNEY GENERALOF TEXAS
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g6236, ballS , r-6,’ hOOp8 OC OthOI’ d6V1C6fJ aP6 U66d,
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the 6m4 buil&Zng or plaoe, or ubethsr th6 balls or
Oth6r d6V:O66 ap(LrO=sd OC Ussd bJ turndOr Qth6FUIs6,
oaohuaQreQ~dollar6. Anyall6YuseilIn6onm66tIez%
with any dmg stew, or p&66 wb6r6 toMoo in my
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tax, from vhlch latter ta% YotzngS6n's Ghr2etZma Assooiatlons are,
umlsr wrtsln cond:tIom, expross~ exiaaptb Artlale i%50, Sub-
dlvlafsn 2, Vsmonla Text36Civil f!tatutes,reading aa foll6var
fioAawtle c&xmgsII* ShepPsard,Page 3
"2. ChriatiBn A66W~tiOA6.--YOUUg #ha’6
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forth6pwpo66ofiurth6r~ r6lI@nl6 vork,ua
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therut n606666ry for th6 prop6r WwpaAay ot SU&
bllildiag6,W6 urd ClajOmt Of th6 66M6, 6lldnot
l6666dor0th6ruI66u6odvIth6 ri6vtopr0fitotb6r
th6U3fOP i&4 -066 Of bUd.AtaiAing tb LruildiZ~&S
and Aaooolation, 6mdallandoumW%t hradr oSth6 8bOv6
&umtiOrmd nllglow la6tItutIon6 not u66d vith a vlou
to Dl-Ofit,but for th6 plll7H66Of Mint6w tb6
fi66OCi~tiOth pad bus6 in doing I'O1igiOU6WC&C,
Aota 1913, p. 153."
The for6going us5ptlou Is not a lIoab16 tin 6akdr6-
-6 no d6t”mlMt1oa w OS of vb8ther tE prqs6r~Inqu66tion
16 60 USttd 66 to OW Witbbl Mid 6%U@iSlL bUEWh U OIir W-
68W&I bfbE d6V61m PO O&U SktUt6, gWWib1 Or Smtrl, 6OW
f6fitng w l%‘B@ tfO
Up On
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of tax6tIan, It but rtmreksr,
to b6 d6temIMd Ii the A66oaIatIan
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.
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Of Art1616 7@k7, v6lraon's%~a6 Qia st&UteSr a6- axed16
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lqs u66a or op6nt6d far DWfit (soMldsrlng all tatstraaks or
Q116y6 in tho 66l66 bUf.lding W p1S66 U a Wit) WthSP thrn U&WA
the prlnolpal bu6Ine66 or owupatlao of th6 ts%pa WI cm 811meal
lpula . Tb6 Young H6nc6 Chd.stian A66wiatfoa a tnlf & not, tmd6r
6n;roomtmf3tIoa,b6 oonrId6zvd~S 6agag6d inth6 pr%noIprlbwl-
a666 Or OOO'&"htiOAOf Op6X'Cbtilt& -6 luLdt6U pin all-. ~OY61p-
th61666, if, a6 iA@idOA~ t0 ttu b6WVOl6Ut #W@“’ Of it6
6xX2" itop6ratu Suahau; in l 'p&%6 Or '-66pWtt6 66kb-
within th6 wwdm of %. St6tUt6, Vhi6h OtbW'UiW WtiS-
tI66 tdlW'&lhW&6~tS t0 taurbulty fix* w SUbdiViSiOA 35, 0
tax lmula 114.
ml'
currot aaistrucrtIsuaAd o$tsrat1sAof talenIA6 aAd ten
Din Rlltty6 OJXHTtt6dbp th6 lOW1 USW%StiQA 16 AOt d66CXibOd fn
your P6tter. It m6t be 866UObd thst 666J6 N-6 "CWStrUOt66 OF
oprWt9d UpOn th0 pX'ti6lQlOOf A bQlfl%R$ A%lSJ slpotlU'hbXh p-8,
Qe@, b&118, rings, hoop0 or OthOF aori8es &Fe used, lritbout
ngud to the &w&or of troakt or Alley8 in the Wmo bUi16ing
or plaee, or ubether the ball8 or other devloe~ AW rolled or
tuti by had or otherul@e,* 00 as to meet ehe reQUlrr;r?nts d
the atatute. !Pheonly w5Alnlrlg requ~ent of tileltattse ra-
puLrlsigour conslder~tian l* vhether su6h nlae ~0.6ten pin rl-
1~ are 'opozatd for pwflt.’ 130a6 to be subject to the tax.
We do ad cauul6er the mere le$+Atlorrof the bpilding on olt~
property t.0be mAtedA to the @eatian of barabilitywe1 non.
uhother a See or ahrge of tvanty cents (204) pes game
to ehe gurewl publio, or flfttrcm as&r (15d) per gane to mmmbom
of the A*mcl.ation,in a uoe or upewtlon OS theoe xilaesad ton
plo.82Uya for PwILt, a0 &e to ra&ier them taxable, vould, ia
the genonlity of eaee8, and vfthout f&x-tbr clefI.nltlou of the
tenu “opewted far profit” by the l.u@.al~ture,p~selble remre
a traalag of the fun& &a16an examlnatloa bto the orgAril6Ation
a a pda r p o em
a ?th e
l8se6la tio to n,
determine iithe net pwaeetls
Uuwd to the beaeflt o r emiabmnt o f( h
Le r eoPn,
lmo r aorpow-
tlen or vow devoted to ohsbltable uaat so ai8 tc, ne@loe the
pwnt feature. Xoveve~r, 231
th e Lnstmalltnation,
t th eLe g l8k-
tu r bessr ea i~e
e6h ls
Que8tton tmr th e
field
o ff-A&r md Zmter c
wtatt6n by oemlog, A# iWlom, in subdlo~*ion 36, what tbq
L- b ,wu u lr ing
t& & to
t b efur a b s
le,
A%dAllo mmust b a
%Be6 00 C&PAbd for p,orit*' | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4390222/ | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
UNITED SERVICES AUTOMOBILE )
ASSOCIATION, a foreign corporation, )
)
Petitioner, )
)
v. ) Case No. 2D18-4661
)
ROBYN L. REY, )
)
Respondent. )
)
Opinion filed April 24, 2019.
Petition for Writ of Certiorari to the
Circuit Court for Hillsborough County;
Elizabeth G. Rice, Judge.
Jenna C. Worden, Daniel A. Martinez,
and Weslee L. Ferron of Martinez Denbo,
L.L.C., St. Petersburg, for Petitioner.
George A. Vaka of Vaka Law Group,
Tampa, for Respondent.
PER CURIAM.
The petition for writ of certiorari is dismissed without prejudice to United
Services Automobile Association to seek review in this court of any ruling on the motion
to abate that is pending in the circuit court or on any discovery order that is entered in
regard to the bad faith claim prior to the finality of the final judgment on which the bad
faith claim is based.
Dismissed.
SILBERMAN, LUCAS, and SALARIO, JJ., Concur.
-2- | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4126482/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CARRIE KELLY, ADMINISTRATRIX OF : No. 537 MAL 2016
ESTATE OF JUSTIN KELLY, :
DECEASED, AS ASSIGNEE OF DALLAS :
MATTHIAS, D/B/A DALLAS MATTHIAS : Petition for Allowance of Appeal from
TREE SERVICE, : the Order of the Superior Court
:
Petitioner :
:
:
v. :
:
:
H.C. KERSTETTER CO.,CENTRAL :
INSURERS GROUP, INC.AND THOMAS :
BERICH, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 15th day of February, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126487/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOHN RYSCUCK and VANESSA )
WALKER, d/b/a WALKER HOME )
RENOVATIONS, )
) C.A. No.: N14C-10-233 EMD
Plaintiffs, )
)
v. )
)
NORMA WHITE, MICHELE BILOW, )
TRI-STATE INVESTMENTS )
HOLDINGS of DE, INC., and EXIT )
REALTY TRI-STATE GROUP, )
)
Defendants. )
ORDER DISMISSING CIVIL ACTION
Upon consideration of the Order Granting Motion for Plaintiffs Counsel to Withdraw
entered on November 14, 2016; the Order of the Court attached to the Letter from Donald L.
Gouge, Jr., Esq., to the Honorable Eric M. Davis entered on January 5, 2017; the Letter form
Donald L. Gouge, Jr., Esq., to the Honorable Eric M. Davis dated February 10, 2017; the Letter
from Gary R. Dodge, Esq., to the Honorable Eric M. Davis dated February 10, 2017 and filed on
February 13, 2017; and the entire record of this civil action,
IT IS HEREBY FOUND AND DETERMINED that, through its Orders, the Court set
deadlines of December 14, 2016 and February 1, 2017 for the Plaintiffs to file a notice with the
Court demonstrating their intent to prosecute this civil action either with new counsel or pro se;
and
IT IS HEREBY FURTHER FOUND AND DETERMINED that the Court, per request
of former counsel, gave additional time until the end of February 13, 2017 for the Plaintiffs to
demonstrate their intent to prosecute this civil action; and
IT IS HEREBY FURTHER FOUND AND DETERMINED that, as of February 15,
2017 at 9:00 a.m., the Plaintiffs have not complied with the Court’s Orders; and
IT IS HEREBY ORDERED that this civil action is DISMISSED WITH
PREJUDICE.
Dated: February 15, 2017
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: The Prothonotary
The Parties | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126491/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
FISHERIES SURVIVAL FUND, et al., )
)
Plaintiffs, )
)
v. ) Case No. 16-cv-2409 (TSC)
)
SALLY JEWELL, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
This case involves the Bureau of Ocean Energy Management’s (“BOEM”) plan to lease
to Statoil Wind US, LLC a large nautical area off the coast of New York for the development of
a wind energy facility. Plaintiffs brought suit challenging BOEM’s alleged failure to properly
comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. and the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331–56, prior to the issuance of
the lease to Statoil. Before the court is Plaintiffs’ motion for a preliminary injunction to
temporarily halt BOEM from proceeding with the final sale of Lease OCS-A 0512. (ECF No. 3).
The court granted Statoil’s motion to intervene (ECF No. 13), and the court heard oral argument
on Plaintiffs’ preliminary injunction motion on February 8, 2017.
Upon consideration of the motion and the arguments of counsel at the hearing, and for the
reasons stated herein, Plaintiffs’ motion for a preliminary injunction is DENIED.
I. BACKGROUND
A. The Parties
Plaintiffs in this case are nine commercial fishing organizations and businesses—the
Fisheries Survival Fund, The Town Dock, SeaFreeze Shoreside, Sea Fresh USA, Rhode Island
1
Fishermen’s Alliance, Garden State Seafood Association, Long Island Commercial Fishing
Association, the Fisherman’s Dock Co-Operative of Point Pleasant, and the Narragansett
Chamber of Commerce—as well as three municipalities—the Borough of Barnegat Light, New
Jersey, the Town of Narragansett, Rhode Island, and the City of New Bedford, Massachusetts.
The nine commercial and organizational plaintiffs are all involved in the business of fishing for
scallops and squid in coastal areas located in the same site as the planned wind farm at issue.
(Compl. ¶¶ 4, 6–11, 13, 15). The municipal plaintiffs assert economic and natural resource
interests in the planned site. (Id. ¶ 12, 14, 15).
Defendant BOEM of the U.S. Department of the Interior administers the OCSLA and
oversees the wind facility leasing process at issue in this case. 30 C.F.R. § 585.100. Defendant-
Intervenor Statoil is the energy company that provisionally won Lease OCS-A 0512 in BOEM’s
competitive online auction. (Bull Decl. ¶ 18 (ECF No. 21-1)). Plaintiffs have also sued the
Secretary of the Interior in her official capacity. (Compl. ¶ 16).
B. Statutory & Regulatory Framework
1. NEPA
Before a federal agency engages in activity that may “significantly affect[] the quality of
the human environment,” NEPA requires it to prepare “a detailed statement” on “the
environmental impact of the proposed action,” as well as any potential alternative actions that
may be taken. 42 U.S.C. § 4332(2)(c)(i)–(v). The agency must thus take a “hard look” at
environmental consequences before moving forward on a major administrative action. Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976). The purpose of this requirement is to ensure “‘a
fully informed and well-considered decision, not necessarily’ the best decision.” Theodore
Roosevelt Conserv. P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (quoting Vermont
2
Yankee Nuclear Power Corp. v. Nat. Resources Def. Council, Inc., 435 U.S. 519, 558 (1978)).
The statute sets procedural requirements, but does not mandate certain outcomes. See Robertson
v. Method Valley Citizens Council, 490 U.S. 332, 350 (1989) (“If the adverse environmental
effects of the proposed action are adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values outweigh the environmental costs.”).
2. OSCLA
Under the OSCLA, BOEM is authorized to issue leases, easements, or rights-of-way for
offshore renewable energy projects. 43 U.S.C. § 1337(p)(1). BOEM must consult with the U.S.
Coast Guard and other relevant federal agencies, and must consider several factors, including
safety, protection of the environment, conservation of natural resources, and prevention of
interference with reasonable uses of the area, including for fishing or navigation. 43 U.S.C.
§ 1337(p)(1)(C), (4)(A)–(L). Pursuant to these statutory provisions, BOEM has promulgated
regulations governing the leasing process and management of offshore renewable energy
projects. 30 C.F.R. § 585.100 et seq.
C. BOEM’s Leasing Process & Lease OCS-A 0512
BOEM oversees the development of renewable energy sources on the outer continental
shelf. Under its regulations, a private developer may submit an unsolicited proposal to lease any
area of the ocean for a wind energy facility. 30 C.F.R. § 585.230. In September 2011, a
consortium of energy companies proposed the development of a wind energy facility off the
coast of New York, covering approximately 127 square miles of ocean area. (Pl. Ex. C (Project
Application and Lease Request); Ex. K (Amended Lease Request)). Pursuant to its regulations,
BOEM issued a Request for Interest in January 2013 to determine whether there existed
competitive interest in the area. 78 Fed. Reg. 760 (Jan. 4, 2013). After determining that there
3
was competitive interest, BOEM published a Call to seek nominations from companies interested
in leasing the area and to gather public input on site conditions, resources, and existing uses of
the lease area. 79 Fed. Reg. 30,643, 30,645 (May 28, 2014).
BOEM then prepared a draft Environmental Assessment (“EA”) which considered the
impacts associated with issuing a lease and the activity that would follow, including conducting
site characterization surveys and installing meteorological towers or buoys for site assessment.
The draft EA was published for public comment in June 2016, 81 Fed. Reg. 36,344 (June 6,
2016), and many of the Plaintiffs submitted comments about how a wind facility at the proposed
lease location would harm their fishing interests and the marine habitat in that area. On October
31, 2016, BOEM published both a Final Sale Notice and a Revised EA, which resulted in a
Finding of No Significant Impact. 81 Fed. Reg. 75,429, 75,438 (Oct. 31, 2016). BOEM’s EA
was limited to assessing the environmental impacts, if any, of pre-construction activity in the
lease area, including conducting surveys and installing, operating, and decommissioning
meteorological towers or buoys. Id. at 75,438.
In December 2016, BOEM conducted an online auction for the lease, in which Statoil
was named the provisional winner, with a bid of approximately $42 million. (Bull Decl. ¶ 18).
This lease has not yet been executed. Once the lease is executed, Statoil will be granted the
exclusive right to conduct site characterization activities and, within one year of the lease
issuance, propose a Site Assessment Plan (“SAP”). 30 C.F.R. §§ 585.601, 585.605. BOEM
must then approve the SAP, reject it, or approve it with modifications. 30 C.F.R. § 585.613. If
BOEM approves the SAP, Statoil may then engage in site assessment, such as conducting
surveys and using towers or buoys to evaluate wind resources, for up to five years. 30 C.F.R.
§ 585.235(a)(2). No later than six months before the end of the five year period, Statoil will then
4
have to propose a Construction and Operations Plan (“COP”). 30 C.F.R. § 585.601(b). The
COP includes all data and information to support the plan for the wind facility, as well as
proposals for minimizing environmental impacts. 30 C.F.R. § 585.626(b). Following the COP
proposal, BOEM is required to conduct a NEPA analysis, such as an Environmental Impact
Statement (“EIS”), to determine whether to approve the COP, reject it, or approve it with
modifications. 30 C.F.R. § 585.628(b).
II. LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show “that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary
injunction is an “extraordinary and drastic remedy” that is “never awarded as of right.” Munaf v.
Geren, 553 U.S. 674, 689–90 (2008) (citations omitted). In addition to a likelihood of success
on the merits, the moving party must demonstrate some injury, as “[t]he basis of injunctive relief
in the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88
(1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506–07 (1959)). If a party
makes no showing of irreparable injury, the court may deny the motion for injunctive relief
without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d
738, 747 (D.C. Cir. 1995).
III. DISCUSSION
A. Irreparable Harm
The standard for irreparable harm is particularly high in the D.C. Circuit. Plaintiffs have
the “considerable burden” of proving that their purported injuries are “certain, great and actual—
5
not theoretical—and imminent, creating a clear and present need for extraordinary equitable
relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C.
2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)) (internal quotation
marks omitted). In addition, “the certain and immediate harm that a movant alleges must also be
truly irreparable in the sense that it is ‘beyond remediation.’” Elec. Privacy Info. Ctr. v. DOJ, 15
F. Supp. 3d 32, 44 (D.D.C. 2014) (citation omitted). Plaintiffs must provide some evidence of
irreparable harm: “the movant [must] substantiate the claim that irreparable injury is likely to
occur” and “provide . . . proof indicating that the harm is certain to occur in the near future.”
Wis. Gas Co., 758 F.2d at 674 (internal quotation marks and citation omitted). This is because
“[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent
with our characterization of injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
To establish irreparable harm under a NEPA claim, Plaintiffs must allege some concrete
injury beyond the procedural injury caused by BOEM’s alleged failure to comply with NEPA
when it conducted its environmental assessment. Fund for Animals v. Clark, 27 F. Supp. 2d. 8,
14 (D.D.C. 1998). Plaintiffs articulate three additional harms from the construction of a wind
facility in the lease area: (1) loss of the ability to fish in areas that are commercially valuable
and significant for the local fishing industry; (2) increased risk of safety hazards for fishermen
and other ships attempting to navigate in shipping lanes near the lease area; and (3) damage to
their interests in enjoying the habitat for scallops, squid, fish, and other marine species.
To meet the standard for irreparable harm, Plaintiffs must present sufficient evidence that
the purported injury is certain, great, actual, imminent, and beyond remediation. Plaintiffs have
failed to do so. Most significantly, Plaintiffs have not shown that their purported injuries are
6
imminent or certain. The three articulated injuries would result only from the construction and
operation of a wind energy facility, but any construction of such a facility is years in the future
and subject to further government approval. As described above, once the lease is executed and
issued, up to a year may pass before Statoil first proposes a Site Assessment Plan, which BOEM
must evaluate and decide whether to approve. If the SAP is approved, Statoil may then engage
in surveying and wind evaluation, including installing and operating wind buoys or towers.
Statoil would then have another five years to propose its construction and operations plan to
BOEM, at which point the agency must engage in the lengthy process of preparing an EIS—
which includes receiving and responding to public comments—to consider the environmental
effects of the actual construction and operation of a wind facility. If its COP were approved,
only then could Statoil begin to construct a wind energy facility in the lease area. BOEM also
points out that the issuance of the lease does not deny fishing access to Plaintiffs (Gov’t Opp. at
19), and does not trigger any construction activities that may damage the marine environment.
Plaintiffs’ only argument for why there is an imminent and irreparable harm, despite
construction being years away if it happens at all, is that once the lease is issued Statoil will have
made a significant financial investment in the development of a wind facility and will have
attained some “property rights” in the ocean area, meaning the balance of harms for whether to
issue an injunction later in this case will have changed. In the court’s view, this factor does not
weigh strongly enough to create an imminent harm sufficient to warrant preliminary injunctive
relief. The court maintains its authority to ultimately enjoin the lease in this litigation if
necessary. Moreover, Statoil’s decision to invest in this lease is already made with full
awareness that its proposals for a wind facility may be rejected and it may never construct or
operate such a facility. Its decision whether to invest in a development process that is not certain
7
to result in operation of a wind facility does not establish imminent harm for Plaintiffs. For these
same reasons, Plaintiffs have not shown that these purported harms are “beyond remediation.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
In sum, the court concludes that Plaintiffs have failed to establish that their purported
harms are imminent, concrete, or irreparable to warrant preliminary injunctive relief. 1
B. Remaining Factors
The court need not consider the remaining preliminary injunction factors in light of the
lack of irreparable harm. See CityFed Financial Corp., 58 F.3d at 747. However, the court will
briefly address the three remaining factors, none of which weigh strongly for or against
preliminary injunctive relief. With respect to the likelihood of success on their NEPA and
OCSLA claims, Plaintiffs offer numerous arguments for why the EA prepared by BOEM is
defective and in violation of the agency’s statutory and regulatory requirements, including that it
failed to analyze the actual construction and operation of a wind facility and further failed to
analyze other potential locations for the wind facility. BOEM counters that the proper time to
assess environmental impacts of construction is years from now once a COP has been proposed,
and that it has no obligation to consider whether a wind energy facility outside of the lease area
might have less environmental impact, only whether the specific lease proposal at issue should
be approved. The D.C. Circuit’s decision in Public Employees for Environmental Responsibility
v. Hopper, 827 F.3d 1077, 1082–83 (D.C. Cir. 2016) does suggest that the proper time for the
agency to consider these environmental impacts may be at the present stage. In that case, the
Circuit considered another wind energy facility and found defects with BOEM’s environmental
1
Defendants further argue that Plaintiffs lack standing for these same reasons. However,
Defendants have not moved to dismiss the case due to a lack of standing, and the court need not
consider these arguments in its analysis of the preliminary injunction factors.
8
analysis. It ordered a new EIS but chose not to set aside the lease. However, in considering this
case and other precedents, the court determines that the merits here are not so one-sided as to
overcome the lack of clear irreparable harm and justify preliminary relief.
Additionally, as to the balance of equities, both sides present compelling arguments.
BOEM asserts that it, and by extension the public, has an interest in the operation of its wind
energy leasing program, as well as a financial interest in continuing with the lease transaction.
Plaintiffs argue that they have an interest in preserving the status quo to continue pursuing their
commercial fishing activity, and that the public interest is best served by ensuring that federal
agencies properly comply with legal requirements. This balancing does not favor either side.
The court therefore concludes that Plaintiffs have not shown irreparable harm, and none of the
remaining factors weigh in their favor either.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is DENIED.
Date: February 15, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
9 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129151/ | ) OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
July 9,2002
The Honorable Frank Madla Opinion No. JC-0529
Chair, Intergovernmental Relations Comrnittee
Texas State Senate Re: Whether a county civil-service commission
P-0. Box 12068 or a sheriffs department civil-service commission
Austin, Texas 78711 may adopt a rule that permits an award of back
pay to an employee after the commission modifies
a disciplinary action taken against that employee
(RQ-0504-JC)
Dear Senator Madla:
Section 158.009 of the Local Government Code requires a county civil-service commission
formed under chapter 158, subchapter A to adopt rules regarding, among other things, county
employees ’“substantive rights, . . . benefits, and working conditions.” TEX. Lot. GOV’T CODE ANN.
8 158.009(a)(S) (V emon 1999). Section 158.035 similarly requires a sheriffs department civil-
service commission formed under chapter 15 8, subchapter B to adopt rules regarding, among other
things, employees ’“substantive rights, . . . benefits, and working conditions.” Id. fj 158.035(a)(X).
You ask whether a civil-service commission formed under either chapter 158, subchapter A or
subchapter B has sufficient authority to adopt a rule that “permits awarding back pay to an employee
after the Commission modifies a disciplinary action taken against” the employee, “where such
modification results in either a full or partial restoration of that employee’s position.“’ We conclude
that a civil-service commission’s statutory rule-making authority includes authority to adopt such
a rule under either subchapter A or B.
Chapter 158 of the Local Government Code is divided into two subchapters, A and B. See
TEX. LOC. GOV’T CODE ANN. ch. 15 8 (Vernon 1999 & Supp. 2002). Subchapter A applies to a county
civil-service commission created to include all county employees who are not exempted by other
law. See id. 5 158.002 (Vernon 1999). Subchapter B applies to a sheriffs department civil-service
system created for sheriffs department employees. See id. 4 158.032. Although we have received
a letter averring that your question specifically concerns the Nueces County Civil Service
Commission created under subchapter A,* you ask about civil-service commissions created under
both subchapters. See Request Letter, supra note 1, at 1.
‘Letter from Honorable Frank Madla, Texas State Senator, to Honorable John Comyn, Texas Attorney General
(Jan. 24,2002) (on f11e with Opinion Committee) [hereinafter Request Letter].
*Letter Brief from Honorable Laura Garza Jirnenez, Nueces County Attorney, to Honorable John Comyn, Texas
Attorney General, at 1 (Mar. $2002) (on f11e with Opinion Committee) [hereinafter Jimenez BriefJ.
me Honorable Frank Madla - Page 2 (JC-0529)
Under subchapter A, a county with a population of at least 200,000 may create a county civil-
service system to include all county employees “who are not exempted from the system by the
express terms or judicial interpretations of this subchapter or by the operation of Subchapter B.”
TEX. Lot. GOV’T CODE ANN. § 158.002 (Vernon 1999). Once created, the county commissioners
court must appoint three commissioners to administer the system. See id. 5 158.008(a) (Vernon
Supp. 2002). Generally, the commission must adopt rules regarding:
(1) the definition of a county employee;
(2) selection and classification of county employees;
(3) competitive examinations;
(4) promotions, seniority, and tenure;
(5) layoffs and dismissals;
(6) disciplinary actions;
(7) grievance procedures; and
(8) other matters relating to the selection of county employees and the
procedural and substantive rights, advancement, benefits, and working conditions of
county employees.
Id. 8 158.009(a) (Vernon 1999). “The commission may adopt or use as a guide any civil service law
or rule of the United States, this state, or a political subdivision in this state to the extent that the law
or rule promotes” subchapter A’s purposes and serves the county’s needs. Id. 5 158.009(b); see Tex.
Att’y Gen. Op. No. DM-338 (1995) at 9-l 1 (concluding that section 158.009 does not authorize
county civil-service commission to endow itselfwith subpoena power). A county employee covered
by the civil-service system who, “on a final decision by the commission, is demoted, suspended, or
removed from” his or her position may appeal to a district court in the county within thirty days of
the decision. TEX. Lot. GOV’T CODE ANN. 8 158.012(a) (Vernon 1999). And, if the district court
finds in favor of the petitioning employee, the court may order reinstatement and back pay. See id.
8 158.012(c).
Subchapter B authorizes a sheriffs department in a county with a population greater than
500,000 to create a civil-service system.3 See id. 5 158.032. In a county with a population between
3Nueces County’s population is not large enough to establish a sherifrs department civil-service system under
chapter 158, subchapter B of the Local Government Code. While section 158.032 requires a population greater than
500,000, Nueces County’s population is 3 13,645. See TEX. LOC.GOV’TCODEANN.3 158.032 (Vernon 1999); BUREAU
(continued.. .)
The Honorable Frank Madla - Page 3 (JC-0529)
500,000 and 2.8 million, the commission consists of three members, one each appointed by the
sheriff, the commissioners court, and the district attorney. See id. 8 158.034. In a county with a
population of 2.8 million or more, the commission consists of seven members, two each appointed
by the sheriff, the commissioners court, and the district attorney, and “one member by joint action
requiring the affirmative vote of each of the authorities.” Id. The sheriffs department civil-service
commission’s power to adopt rules is largely identical to that granted a county civil-service
commission under subchapter A:
(a) The commission shall adopt . . . rules regarding:
(1) selection and classification of employees;
(2) competitive examinations;
(3) promotions, seniority, and tenure;
(4) layoffs and dismissals;
(5) disciplinary actions;
(6) grievance procedures;
(7) the rights of employees during an internal investigation;
and
(8) other matters relating to the selection of employees and
the procedural and substantive rights, advancement, benefits, and
working conditions of employees.
(b) The commission may adopt or use as a guide any civil service law or rule
of the United States, this state, or a political subdivision in this state to the extent that
the law or rule promotes the purposes of this subchapter and is consistent with the
needs and circumstances of the department.
(c) In a county with a population of 2.8 million or more, a panel of three
commissioners shall preside at the hearing and vote on the commission’s final
decision in any case involving termination, demotion, or recovery of back pay. A
panel’s decision is the final decision of the commission for purposes of Sections
3(...continued)
OF THECENSUS,U.S. DEP’T OF COMMERCE,2000 CENSUSOF POPULATION,General Population, Characteristics: Texas,
Nueces County (available at http://www.census.gov); see also TEX. GOV’T CODE ANN. $3 11.005(3) (Vernon 1998)
(defining term “population” generally as “population shown by . . . most recent federal decennial census”).
The Honorable Frank Madla - Page 4 (JC-0529)
15 8.03 5 1 [“Procedures After Felony Indictment or Misdemeanor Complaint”] and
158.037 [“Appeals,” see infra]. The commission shall adopt rules prescribing the
commission’s procedures for assigning members to a panel. . . .
Id. 5 158.035. An employee may appeal a “final decision” demoting, suspending, or removing him
or her from a position to a district court in the county by filing a petition within thirty days “after the
date of the decision.” Id. 8 158.037(a). “If the district court renders judgment for the” employee,
the court may order that the employee receive back pay. Id. 8 158.037(c).
We conclude that sections 15 8.009(a) and 15 8.03 5(a) of the Local Government Code provide
a civil-service commission with sufficient rule-making authority to adopt a rule permitting the award
of back pay to an employee after the commission partly or fully reinstates the employee. Request
Letter,supranote 1, at 1; ~~~TEx.Loc.Gov’TCODEANN. $5 158.009(a), 158.035(a) (Vernon 1999).
A civil-service commission has only those powers that “are expressly granted to it by statute together
with those necessarily implied from the authority conferred or duties imposed.” Stauffer v. City of
San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). Subsection (a)(8) of both sections 158.009 and
158.035 require a civil-service commission to adopt rules pertaining to employees’ “substantive
rights, . . . benefits, and working conditions.” TEX. Lot. GOV’T CODEANN. 59 158.009(a)(S),
.035(a)(8) (V emonl999). Although it is not defined in chapter 158, a substantive right is commonly
understood to be “[a] right that can be protected or enforced by law; a right of substance rather than
form.” BLACK’S LAW DICTIONARY 1324 (7th ed. 1999); see TEX. GOV’T CODEANN. 6 3 11 .Ol l(a)
(Vernon 1998) (providing that words and phrases used in statute but not defined by it “shall be read
in context and construed according to . . . common usage.“). Insofar as a civil-service commission’s
rule provides a wrongly dismissed employee with a right to back pay upon reinstatement, the rule
pertains to the employee’s substantive rights. Moreover, a back-pay policy provides an employee
benefit in that it governs a “condition of employment no different than the rate of compensation or
amount of vacation an employee is to receive.” Tex. Att’y Gen. Op. No. H-402 (1974) at 2; see TEX.
Lot. GOV’TCODEANN.§§ 158.009(a)(8), .035(a)(8) (V emon 1999). In the employment context, the
term “benefit” denotes an advantage or privilege “(other than direct salary or compensation) received
by an employee from an employer.” BLACK’SLAW DICTIONARY 150-5 l(7th ed. 1999).
Section 158.035 l(e), which specifically permits a sheriffs department civil-service
commission in a county with a population of 2.8 million or more to award back pay to an employee
in certain circumstances, does not limit a civil-service commission’s broad rule-making authority
under either section 158.009 or 158.035. See TEX. LOC. GOV’T CODEANN. 8 158.0351(c) (Vernon
1999). A brief we have received urges us to imply, from the authority granted a civil-service
commission in section 15 8.03 5 1(e), that a civil-service commission not subject to section 15 8.03 5 1
may not award back pay. See Jimenez Brief, supra note 2, at 3. But the history of the 1993
legislation that enacted section 158.035 1 (as well as section 158.035(c)) indicates that the legislature
was concerned about a sheriffs inability to suspend an employee indicted for a felony or officially
charged with committing a Class A or B misdemeanor, not a lack of authority to award back pay.
S~~SENATERESEARCHCTR.,BILLANALYSIS,T~~.S.B.~~~,~~~L~~.,R.S.(~~~~);HOUSECOMM.ON
COUNTYAFFAIRS,BILLANALYSIS,Tex. S.B. 784,73d Leg., R.S. (1993).
The Honorable Frank Madla - Page 5 (JC-0529)
Sections 158.012(c) and 158.037(c), which permit an employee to appeal a civil-service
commission’s “final decision” to a district court and permit the district court to “order . . . payment
of back pay,” also do not restrict a civil-service commission’s rule-making authority under sections
158.009 and 158.035. A brief we have received notes that “[wlhile the legislature states that the
district court ‘may order . . . payment of back pay . . . ,“’ see TEX. Lot. GOV’T CODE ANN. fj§
158.012,158.037 (Vernon 1999), the legislature has not conferred that power on a commission, and
so, according to the brief, a commission does not have the authority to reconsider its decision and
to provide a remedy. See Jimenez Brief, supra note 2, at 3. In our opinion, section 158.012’s and
section 158.037’s references to a commission’s “final decision” indicate that a commission may
modify an order and provide remedies before the order may be appealed to a court, although the
statutes themselves do not tell us what a final decision is. See Bouldin v. Bexar County Sher#‘s
Civil Serv. Comm ‘n, 12 S.W.3d 527, 530 (Tex. App.-San Antonio 1999, no pet.) (stating that “the
statute does not define what constitutes a final decision”); see also TEX. GOV’T CODE ANN. 0 3 11 .Ol 1
(Vernon 1998) (providing that undefined statutory terms should be construed consistently with
common usage); BLACK’SLAWDICTIONARY 847 (7th ed. 1999) (defining “final judgment”); id. at 644
(defining “final decision” as final judgment). Similarly, under the Administrative Procedure Act,
chapter 2001 of the Government Code, see TEX.GOV’TCODEANN.§ 2001.002 (Vernon 2000) (titling
Act), a state agency’s decision in a contested case generally is final a certain period after a decision
is issued, which period allows an aggrieved party time to move for a rehearing on the matter. See
id. 8 2001.144(a); CJ EdwardsAquzferAuth. v. Bragg, 21 S.W.3d 375,380 (Tex. App.-San Antonio
2000), afyd, 71 S.W.3d 729 (Tex. 2002) (stating that, for agency action to be “final,” it must be
definitive and must immediately affect regulated party’s day-to-day business); Tex.- NM. Power Co.
v. Tex. Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex. 1991) (quoting 5 J. STEIN, G.
MITCHELL, & B. MEZTNES, ADMINISTRATIVE LAW 48-10 (1988)) (opining that “no single rule”
disposes of all finality questions, but advising courts to “treat as final a . . . ‘definitive”’ decision,
“‘promulgated in a formal manner and one with which the agency expects compliance”‘).
Moreover, we find no evidence in the legislative history of these statutes that the legislature
intended to withhold from a civil-service commission the authority to award back pay to a reinstated
employee. Although sections 15 8.0 12 and 15 8.037 are substantively similar for the purposes of this
opinion, they were adopted ten years apart. What is now section 158.012(c) was adopted in 1971,
see Act of May 14,1971,62d Leg., R.S., ch. 262, sec. 9(c), 1971 Tex. Gen. Laws 115 1,1153; what
is now section 158.037(c) was adopted in 1981, see Act of May 6, 1981,67th Leg., R.S., ch. 119,
sec. 7(c), 198 1 Tex. Gen. Laws 295,296. In connection with the 198 1 legislation, the bill analysis
noted that, without a civil-service system, “years of expensive litigation” is an employee’s only
recourse when he or she is demoted or fired. See HOUSE STUDYGROUP,BILLANALYSIS 1, Tex. S.B.
301,67th Leg., R.S. (198 1); cf: TEX. HOUSE INTERIM COUNTYGOV’T STUDY COMM., REPORT TO THE
62D LEGISLATURE 13 (Jan. 11,197 1) (stating that civil-service legislation is aimed at helping counties
“attract[] and keep[] capable officers and employees”: “The prospect of losing a job if the
department head loses an election inevitably discourages prospective employees.“). Interpreting a
civil-service commission’s rule-making authority to exclude the power to reconsider its own
decisions and to provide remedies when the commission concludes its previous decision was wrong
would thwart the legislative intention to provide county employees an avenue other than litigation
The Honorable Frank Madla - Page 6 (JC-0529)
to redress grievances. See TEX. GOV’T CODEANN. $5 311.021(3), .023(3), (5) (Vernon 1998)
(directing construer to presume legislature intended just and reasonable result, and permitting
construer to consider legislative objective and consequences of particular construction).
Finally, a rule permitting an award of back pay in the circumstances you describe does not
contravene article III, section 53 of the Texas Constitution, as a brief we have received suggests.
See Jimenez Brief, supra note 2, at 3. Article III, section 53 prohibits a county from granting “any
extra compensation, fee[,] or allowance to a public officer” or employee “after service has been
rendered.” TEX. CONST.art. III, 5 53. We assume that any back pay awarded is for services
performed after the rule’s adoption. Cf: Tex. Att’y Gen. Op. No. JC-0370 (2001) at 2 (stating that
if county revises handbook to permit payments to employees for accrued vacation or compensatory
time, county may apply increased benefits only to services performed after revisions took effect).
While a payment of back pay is unconstitutional where it is not awarded under a specific policy, the
adoption of a rule permitting back pay “becomes a condition of employment,” and the award does
not violate article III, section 53 of the Constitution. See Tex. Att’y Gen. Op. No. H-402 (1974) at
2. By contrast, in Attorney General Opinion H-402 this office concluded that a commissioners court
may not approve back pay for a county employee who was suspended and later reinstated without
a policy granting a right to back pay “as a part of the terms of employment.” Id. at 2-3 (summary).
The Honorable Frank Madla - Page 7 (JC-0529)
SUMMARY
A county civil-service commission created under chapter 158,
subchapter A of the Local Government Code and a sheriffs
department civil-service commission created under subchapter B of
the same chapter may adopt a rule that permits the commission to
award. back pay to an employee if the commission modifies a
disciplinary action to partly or fully reinstate the employee. See TEX.
Lot. GOV’T CODEANN. ch. 158 (Vernon 1999 & Supp. 2002).
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4162080/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
RYAN NOAH SHAPIRO, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-0729 (PLF)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
This is a Freedom of Information Act (“FOIA”) case brought by plaintiff Ryan
Noah Shapiro against the United States Department of Justice. Shapiro has requested
information from the FBI about Aaron Swartz, a deceased computer programmer, activist, and
doctoral candidate at MIT. It is alleged that Swartz committed suicide after becoming the
subject of an intensive federal investigation. After holding the parties’ cross-motions for
summary judgment partially in abeyance twice, this matter is now before the Court for a third
time. Upon consideration of the parties’ papers and the relevant legal authorities, the Court will
grant summary judgment in favor of the defendant and deny the plaintiff’s cross-motion for
summary judgment. 1
1
The papers considered in connection with the pending motion include: Complaint
(“Compl.”) [Dkt. 1]; Defendant’s Motion for Summary Judgment (“Def.’s Mot. for SJ”) [Dkt. 5];
Statement of Undisputed Material Facts in Support of Defendants’ Motion for Summary
Judgment (“Def.’s Stmt. Facts”) [Dkt. 5-2]; Plaintiff’s Cross-Motion for Summary Judgment
(“Pl.’s Cr. Mot. for SJ”) [Dkt. 7]; Plaintiff’s Statement of Material Facts as to which there Exists
no Genuine Dispute (“Pl.’s Stmt. Facts”) [Dkt. 7-7]; Third Declaration of David M. Hardy
(“Third Hardy Decl.”) [Dkt. 33-1]; Supplemental Brief in Support of Defendant’s Motion for
Summary Judgment (“Def.’s Second Supp. Br.”) [Dkt. 39]; Fourth Declaration of David M.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shapiro has sought information relating or referring to Aaron Swartz, who was an
academic involved in political organizing and internet activism. Compl. ¶¶ 8, 11-20. In 2013,
Swartz committed suicide after becoming the subject of a federal criminal investigation relating
to his online activities. Id. ¶ 8. Shapiro alleges that this FBI investigation was connected to
Swartz’s death because of its “intensive” and “grossly disproportionate” nature. Id. ¶¶ 8-10. 2
After the first round of document production, both parties moved for summary
judgment. See Shapiro v. Dep’t of Justice, 34 F. Supp. 3d 89, 92 (D.D.C. 2014). On March 31,
2014, this Court held the parties’ cross-motions for summary judgment in abeyance in part
pending further briefing and the FBI’s processing of additional records, if necessary. See id. at
100. In supplementing its response, the government ultimately identified an additional 68 pages
of documents not previously processed and released to Shapiro. Of these 68 pages, the
government produced 35 of them in full, and withheld 9 pages in full and 23 pages in part,
invoking FOIA Exemptions 3, 6, 7(C), 7(E), and 7(F). Third Hardy Decl. ¶ 7 n.1; see Shapiro v.
Dep’t of Justice, 2016 WL 4687156, at *2. On September 7, 2016, the Court granted summary
judgment to the defendant regarding the adequacy of the search, but concluded that the
government’s justifications as to FOIA Exemptions 3 and 7(E) were “insufficient information for
the Court to determine whether disclosure of these database search results would ‘increase the
risks that a law will be violated or that past violators will escape legal consequences.’” Shapiro
Hardy (“Fourth Hardy Decl.”) [Dkt. 39-1]; and Plaintiff’s Response to the Supplemental Brief in
Support of Defendant’s Motion for Summary Judgment (“Pl.’s Resp.”) [Dkt. 42].
2
The complete factual and procedural background of this case is discussed in the
Court’s previous summary judgment opinions. See Shapiro v. Dep’t of Justice, 34 F. Supp. 3d
89, 92-94 (D.D.C. 2014); Shapiro v. Dep’t of Justice, --- F. Supp. 3d ----, 2016 WL 4687156, at
*1-2 (D.D.C. Sept. 7, 2016).
2
v. Dep’t of Justice, --- F. Supp. 3d ----, 2016 WL 4687156, at *4 (D.D.C. Sept. 7, 2016) (citing
Mayer v. Brown, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). The Court again held the parties’
cross-motions in abeyance in part pending further explanation as to the government’s
justifications for withholding documents pursuant to FOIA Exemptions 3 and 7(E). See id. at
*4-5.
The FBI now has provided supplemental information for invoking FOIA
Exemptions 3 and 7(E) and a fourth declaration by David M. Hardy. See generally Def.’s
Second Supp. Br.; Fourth Hardy Decl. Shapiro no longer challenges the government’s
justification under FOIA Exemption 3, but argues that the government’s justification under
FOIA Exemption 7(E) remains inadequate. Pl.’s Resp. at 1 n.1. Shapiro challenges the
redaction of the name of a law enforcement database on one document (Swartz-91), and the
FBI’s withholding in full of seven pages generated by that database (Swartz-83-89). Pl.’s Resp.
at 1. He asks that the Court “order disclosure of all information being withheld pursuant to
Exemption 7(E)-1.” Id. at 3.
II. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The
Court grants summary judgment if the movant shows that there is no genuine dispute as to any
material fact and that he or she is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
In a FOIA action to compel production of agency records, the agency “is entitled to summary
judgment if no material facts are in dispute and it demonstrates ‘that each document that falls
within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s]
3
inspection requirements.’” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833
(D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
An agency can satisfy its burden with supporting affidavits or declarations if they
are “relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation omitted), and “describe the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see Ancient Coin Collectors Guild v. U.S. Dep’t of State,
641 F.3d 504, 514 (D.C. Cir. 2011). “Such affidavits or declarations are accorded ‘a
presumption of good faith, which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.’” Lasko v. U.S. Dep’t of Justice, 684 F. Supp.
2d 120, 127 (D.D.C. 2010) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200).
III. DISCUSSION
Shapiro now challenges only the government’s justification for withholding
information under FOIA Exception 7(E). Pl.’s Resp. at 1 & n.1. 3 “Exemption 7(E) protects
from disclosure law enforcement records ‘to the extent that such . . . information would disclose
techniques and procedures for law enforcement investigation or prosecutions, or would disclose
3
The D.C. Circuit recently stated that “a motion for summary judgment cannot be
deemed ‘conceded’ for want of opposition.” Winston & Stawn, LLP v. McLean, 843 F.3d 503,
505 (D.C. Cir. 2016). Although the Court cannot treat a party’s complete lack of response as a
concession in the summary judgment context, see id., Shapiro has explicitly stated that he no
longer challenges the government’s justification for withholding information under FOIA
Exemption 3. The Court therefore can reasonably infer that there is “no dispute to resolve.” See
Shapiro v. U.S. Dep’t of Justice, --- F. Supp. 3d ----, 2017 WL 908179, at *1 n.1 (D.D.C. Mar. 6,
2017).
4
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law.’” Skinner v. U.S. Dep’t of Justice, 893 F. Supp. 2d
109, 112 (D.D.C. 2012) (quoting 5 U.S.C. § 552(b)(7)(E)). The government has established, and
Shapiro does not dispute, that the FBI is a law enforcement agency, and that the records were
compiled for the law enforcement purpose of “investigating a computer intrusion of the public
access system of the federal courts of the United States.” Def.’s Second Supp. Br. at 4-5; see
Fourth Hardy Decl. ¶ 9. The government therefore meets the threshold requirements under
FOIA Exemption 7. See 5 U.S.C. § 552(b)(7).
The government asserts that the first prong of FOIA Exemption 7(E) — which
allows the government to withhold “techniques and procedures for law enforcement
investigation” — is a categorical bar, and it need not show how disclosure of records containing
techniques and procedures could reasonably be expected to risk circumvention of the law. Def.’s
Second Supp. Br. at 5-6. The D.C. Circuit does not agree. It has noted that it “has applied the
‘risk circumvention of the law’ requirement both to records containing guidelines and records
containing technique and procedures.” Pub. Emp. For Envtl. Responsibility v. Int’l Boundary &
Water Comm’n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014). The Circuit has also concluded,
however, that “Exemption 7(E) sets a relatively low bar for the agency to justify withholding.”
Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a highly specific
burden of showing how the law will be circumvented, exemption 7(E) only requires that the
[agency] demonstrate logically how the release of the requested information might create a risk
of circumvention of the law.” Id. (quoting Mayer Brown LLP v. IRS, 562 F.3d at 1194).
5
A. Redaction of Name of Database (Swartz-91)
The government asserts that the partial redaction of Swartz-91 covers the name of
a database, “not well-known to the public,” that the FBI uses “in order to develop investigative
leads.” Def.’s Second Supp. Br. at 6; see Fourth Hardy Decl. ¶ 10. Although the government
and its declarant spend considerable time discussing why disclosure of the name of the database
“could jeopardize the FBI’s investigative mission by revealing exactly where the FBI is
obtaining certain types of investigative data,” Def.’s Second Supp. Br. at 6-7; Fourth Hardy
Decl. ¶ 10, the name of that database was already released in a previous copy of the document, in
which the name “Accurint” was not redacted. Compare Third Hardy Decl., Ex. B at Swartz-91
[Dkt. 33-2], with Fourth Hardy Decl., Ex. A at Swartz-91 [Dkt. 39-1]. Because the name of the
database already has been disclosed, the dispute is moot. The Court need not order further
production or require the government to unredact the document.
B. Withheld Reports (Swartz-83-89)
The government also has invoked FOIA Exemption 7(E) to withhold seven full
pages (Swartz-83-89), containing “comprehensive reports” that are produced by the Accurint
database. Fourth Hardy Decl. ¶ 10. 4 Mr. Hardy states that these reports “contain detailed
information the FBI uses in its investigations.” Id. This data allegedly “plays an essential role in
decisions concerning the location and identity of suspects, factors essential for determinations to
investigate fraud, uncover assets, and multiple other applicable law enforcement related uses.”
4
Both Mr. Hardy and the government sometimes refer to eight pages rather than
seven. See Def.’s Second Supp. Br. at 6; Fourth Hardy Decl. ¶ 10. This is either simply an
error, see Third Hardy Decl. Ex. B at 63, or because one additional page was not produced
because it was found to be a duplicate of a page previously disclosed to plaintiff. See Third
Hardy Decl. ¶ 7 n.1.
6
Id. According to Hardy, if this information were released, criminals would gain “insight into the
available tools and resources the FBI uses to conduct criminal investigations,” and it would
“enable criminals to employ countermeasures to avoid detection, thus jeopardizing the FBI’s
investigative mission.” Id. These statements logically demonstrate how the release of the
requested information might create a risk of circumvention of the law and meet the relatively low
bar required in this Circuit. See Blackwell v. FBI, 646 F.3d at 42.
Shapiro argues in response that the government’s release of the name of the
database undermines — and is fatal to — its justification for withholding these seven documents
under FOIA Exemption 7(E). See Pl.’s Resp. at 2-3. Shapiro explains that Accurint — the
database — is a “law enforcement database owned by LexisNexis,” and he attaches the
publically available LexisNexis “User Guide for Accurint for Law Enforcement.” Pl.’s Resp.,
Ex. 2 [Dkt. 40-4]. The User Guide describes “all of the types of searches and reports available
through Accurint” and lists “every data field that is available.” Pl.’s Resp. at 2. Shapiro
contends that the guide “vitiates the FBI’s rationale for withholding under Exemption 7(E)”
because “a criminal could obtain far more detailed information about the capabilities of Accurint
for law enforcement from the User Guide than from the few pages of reports at issue here.” Id. 5
5
Shapiro also argues that the supplemental declaration of Mr. Hardy is not credible
and that any “claim of harm is simply manufa[c]tured” because the government disclosed the
name of the Accurint database in an earlier production and now claims that disclosure of the
database name would “jeopardize[] the FBI’s investigative mission by revealing exactly where
the FBI is obtaining certain types of investigative data.” Pl.’s Resp. at 2-3. As previously noted,
such declarations are accorded “a presumption of good faith.” Lasko v. U.S. Dep’t of Justice,
684 F. Supp. 2d at 127 (citation omitted). Although it appears that a mistake was made at some
point in the production of documents, this alone does not lead this Court to conclude that the
agency has acted in bad faith in seeking to withhold the additional reports pursuant to FOIA
Exemption 7(E).
7
Shapiro’s arguments are not persuasive. Although it is true that the government
relies on the secrecy of the database in its justification, this does not diminish its interest in
withholding specific reports generated by that database. “While Exemption 7(E)’s protection is
generally limited to techniques or procedures that are not well-known to the public, even
commonly known procedures may be protected from disclosure if the disclosure could reduce or
nullify their effectiveness” — as the government argues here. Judicial Watch, Inc. v. FBI,
No.00-0745, 2001 WL 35612541, at *8 (D.D.C. April 20, 2001); see also Fourth Hardy Decl.
¶ 10. Even though “the identity of the investigative technique” is more publically known,
disclosure of “the manner and circumstances of the technique” may still “frustrate enforcement
of the law.” Coleman v. FBI, 13 F. Supp. 2d 75, 83 (D.D.C. 1998). The Court therefore
concludes that the government has adequately justified the withholding of the two reports in full,
consisting of seven pages, under FOIA Exemption 7(E).
IV. CONCLUSION
The Court finds that the government has provided sufficient justification as to the
documents it has withheld pursuant to FOIA Exemption 7(E). Because the government has
demonstrated its compliance with the FOIA and its entitlement to judgment as a matter of law,
final judgment will be entered in favor of the defendant. An Order consistent with this
Memorandum Opinion and with prior opinions of this Court will be issued this same day.
SO ORDERED.
/s/_________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: April 20, 2017
8 | 01-03-2023 | 04-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129245/ | OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
November 26,200l
The Honorable Pat Phelan Opinion No. JC-0436
Hockley County Attorney
802 Houston, Suite 211 Re: The ad valorem taxation of mineral interests
Levelland, Texas 79336 that extend across the boundary between two
counties (RQ-03 89- JC)
The Honorable G. Dwayne Pruitt
Terry County Attorney
500 West Main, Room 208E
Brownfield, Texas 793 16-4335
Gentlemen:
You ask about the proper method for allocating the taxable value of mineral interests that
straddle the boundary between your two counties.’ While the Tax Code does not address this
situation directly, we conclude on the basis of the Tax Code and prior judicial and attorney general
opinions that each county must separately determine the market value of a mineral interest as it
appertains to surface land located within that county’s boundaries according to generally accepted
appraisal methods.
You each present us with various facts relating to oil and gas leases that extend across your
counties’ common border. This office does not make findings of fact or resolve disputed questions
of fact. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and
resolution of fact questions cannot be done in opinion process); M-l 87 (1968) at 3 (“[Tlhis office
is without authority to make . . . factual determinations.“); O-29 11 (1940) at 2 (“[Tlhis . . . presents
a fact question which we are unable to answer.“). However, based on the descriptions in your letters,
we present the following facts as background to your legal question.
Your query involves the ad valorem taxation of a working interest in an oil and gas lease.
A working interest in an oil and gas lease is the interest owned by the operator of the lease who has
the exclusive right to exploit the minerals and is usually responsible for all direct operating costs.
See HOWARD R. WILLIAMS & CHARLES J. MYERS, OIL AND GAS TERMS: ANNOTATED MANUAL OF
‘Letter from Honorable Pat Phelan, Hockley County Attorney, to Honorable John Comyn, Texas Attorney
General, at l-2 (received Jun. 7,200l) (on tile with Opinion Committee) [hereinafter Hockley County Request Letter];
Letter from Honorable G. Dwayne Pruitt, Terry County Attorney, to Honorable John Comyn, Texas Attorney General,
at 1 (Jun. 20,200l) (on file with Opinion Committee) [hereinafter Terry County Request Letter].
The Honorable Pat Phelan - Page 2 (JC-0436)
The Honorable G. Dwayne Pruitt
LEGAL ENGINEERINGTAX WORDS AND PHRASES 979 (6th ed. 1984) (defining working interest)
[hereinafter OIL AND GAS TERMS]; TEX. COMPTROLLER, GENERAL APPRAISAL MANUAL, LEGAL
REQUIREMENTS,OPERATIONS,VALUATION PROCEDURES,at M-l 8 (1985) (Appraisal of Minerals) (on
file with Opinion Committee) [hereinafter MANUAL]. By contrast, the owner of a royalty interest is
entitled to a share of production, generally free of the costs of production. See OIL AND GAS TERMS
775 (defining royalty interest).
You state that eighty-four percent of the surface estate associated with the working interest
is located in Hockley County; sixteen percent of the surface estate is located in Terry County. Two
producing wells are located in Hockley County; five are located in Terry County. The two sets of
wells produce at the same rate. In addition, Terry County asserts that the underlying minerals are
not evenly distributed and that the underlying reservoir is more heavily concentrated in Terry
County. See Terry County Brief, at 1,3 (attached to Terry County Request Letter, supra note 1).
The Hockley County Appraisal District (HCAD) has appraised eighty-four percent of the
value of the mineral interest because eighty-four percent of the surface estate associated with the
mineral interest is located in Hockley County. On the other hand, the Terry County Appraisal
District (TCAD) has appraised fifty percent of the value of the mineral interest because the district’s
analysis of the present production rates and geological data indicate that fifty percent of the
remaining recoverable reserves are located in Terry County. Hockley County cites “a fundamental
difference” between the appraisal districts with respect to what they are appraising: “HCAD believes
that it is valuing the mineral interests created by interests in real property, while TCAD is apparently
appraising the minerals that are under the ground.” Hockley County Request Letter, supra note 1,
at 1.
Because the appraisal districts cannot agree on the proper method of allocating the taxable
value of the mineral interest, you ask whether the allocation of the mineral interest should “be based:
(1) on the ratio of surface acreage covered under the lease attributable to each county, or (2) on an
engineering analysis of the reservoir, the production of minerals, and the remaining recoverable
reserves present in each county.” Hockley County Request Letter, supra note 1, at 1-2; Terry
County Request Letter, supra note 1, at 1. It is not clear from your queries whether you are asking
only about the valuation of the working interest in the oil and gas lease or if you are also concerned
about other interests, such as royalty interests. In addition, Terry County has recently asked about
a second oil and gas lease.* We answer your questions generally, without regard to any particular
mineral interest or type of mineral interest.
We begin with a brief review of the ad valorem taxation of mineral interests. The Texas
Constitution provides that “[a]11property . . . shall be assessed for taxation, and the taxes paid in the
county where situated.” TEX. CONST. art. VIII, 8 11. Under the Tax Code, an estate or interest in oil,
gas, or other minerals is taxable as real property. See TEX. TAX CODEANN. 9 1.04(2) (Vernon Supp.
2See Letter from Honorable G. Dwayne Pmitt, Terry County Attorney, to Honorable John Comyn, Texas
Attorney General (Sept. 4,200O) (on file with Opinion Committee).
The Honorable Pat Phelan - Page 3 (JC-0436)
The Honorable G. Dwayne Pruitt
2001) (defining “real property” to include both “a mineral in place” or “an estate or interest . . . in
property”); see also Electra Indep. Sch. Dist. v. Waggoner Estate, 168 S.W.2d 645,650 (Tex. 1943)
(treating a working interest in mineral as an interest in real property taxable as real property);
Sheffield v. Hogg, 77 S.W.2d 1021, 1030 (Tex. 1934) (holding mineral royalty interest taxable as
real estate). Under the Tax Code provisions governing the taxable situs of property, real property
is taxable by a taxing unit if located in the unit on January 1 of the tax year at issue. See TEX. TAX
CODE ANN. 8 21 .Ol (Vernon Supp. 2001). As this office noted in Attorney General Opinion DM-
490, “Courts have held that because a royalty interest is taxable as an interest in land, it is taxable
as real estate in the county where the land to which it appertains is located, rather than in the county
where the owner of the interest resides.” Tex. Att’y Gen. Op. No. DM-490 (1998) at 2 (citing Jett
v. Kahn, 273 S.W.2d 43 1, 433 (Tex. Civ. App.-Beaumont 1954, writ ref d n.r.e.) (“royalties are
‘rights and privileges belonging or . . . appertaining’ to the land leased . . . and are therefore
assessable as real property by the defendant county and school district . . . .“); Wilcox v. Hull-
Daisetta Indep. Sch. Dist., 95 S.W.2d 490, 493 (Tex. Civ. App.-Beaumont 1936, writ ref d)
(concluding that “said 3 per cent royalty or interest is an interest in the 300 acres of land and so
taxable as real estate in the county where the land is located” and rejecting argument that royalty
interest payable only in money was interest in personal property taxable only in interest owner’s
county of residence). Thus, the taxable situs of a working or royalty interest in an oil and gas lease
is the location of the surface estate to which the interest appertains. See id.
Chapter 25 of the Tax Code, governing the appraisal of taxable property, requires the chief
appraiser of each taxing unit to prepare appraisal records listing all property that is taxable in the
district and stating the appraised value of each. See TEX. TAX CODE ANN. 5 25.01 (Vernon 1992).
When different persons own land and improvements in separate estates or interests, each separately
owned estate or interest shall be listed separately. See id. 9 25.04. Unless the owners of separate
mineral interests request joint taxation, “each separate interest in minerals in place shall be listed
separately from other interests in the minerals in place.” Id. 8 25.12 (Vernon Supp. 2001). If the
owners request joint taxation, then the separate interests are listed jointly, usually in the name of a
designated operator. See id. In addition, chapter 25 specifically requires that “[i]f real property is
located partially outside and partially inside a taxing unit’s boundaries, the portion inside the unit’s
boundaries shall be listed separately from the remaining portion.” Id. 8 25.17 (Vernon 1992).
All taxable property is appraised at its market value of as January 1 of any given tax year.
See id. § 23.01(a) (Vernon Supp. 2001). “Market value” is defined by the Tax Code to mean:
the price at which a property would transfer for cash or its equivalent
under prevailing market conditions if:
(A) exposed for sale in the open market with a reasonable time for
the seller to find a purchaser;
(B) both the seller and the purchaser know of all the uses and
purposes to which the property is adapted and for which it is capable
of being used and of the enforceable restrictions on its use; and
The Honorable Pat Phelan - Page 4 (JC-0436)
The Honorable G. Dwayne Pruitt
(C) both the seller and purchaser seek to maximize their gains and
neither is in a position to take advantage of the exigencies of the
other.
Id. 8 1.04(7).
The Tax Code provides the following general directive regarding appraisal methods for
determining the market value of taxable property:
The market value of property shall be determined by the
application of generally accepted appraisal methods and techniques.
If the appraisal district determines the appraised value of a property
using mass appraisal standards, the mass appraisal standards must
comply with the Uniform Standards of Professional Appraisal
Practice. The same or similar appraisal methods and techniques shall
be used in appraising the same or similar kinds of property.
However, each property shall be appraised based upon the individual
characteristics that affect the property’s market value.
Id. 5 23.01(b). A taxing unit’s chief appraiser, in determining the market value of property, “shall
consider the cost, income, and market data comparison methods of appraisal and use the most
appropriate method.” Id. 5 23.0101.
The income approach is generally the most appropriate method for appraising oil and gas
interests. As one court has explained:
[The] ‘comparable sales’ method of valuing property becomes less
accurate when applied to property interests such as an overriding
royalty interest [in a mineral] because of the absence of an open
market and because the value of the interest lies primarily in its
income-producing potential. For this reason, taxing authorities and
appraisers commonly turn to the ‘income approach’ to value when
assessing a property interest of this nature.
Destec Properties, Ltd. v. Freestone Cent. App. Dist., 6 S.W. 3d 601,605 (Tex. App.-Waco 1999,
pet. denied) (citation omitted); see also MANUAL supra, at M-l (income approach generally only
feasible method for appraising interests in oil and gas). Under section 23.012 of the Tax Code, a
chief appraiser who uses the income method of appraisal is required to:
(1) use rental income and expense data pertaining to the property
if possible and applicable;
(2) make any projections of future rental income and expenses
only from clear and appropriate evidence;
The Honorable Pat Phelan - Page 5 . (JC-0436)
The Honorable G. Dwayne Pruitt
(3) use data from generally accepted sources in determining an
appropriate capitalization rate; and
(4) determine a capitalization rate for income-producing property
that includes a reasonable return on investment, taking into account
the risk associated with the investment.
TEX. TAX CODE ANN. 8 23.012 (Vernon Supp. 2001). In the case of an oil and gas lease, an analysis
of the income to be produced from the mineral interest would take into account not just economic
data but also geological and engineering information, such as the productivity of the wells, reservoir
characteristics, remaining recoverable reserves, and the likelihood of recovery. See, e.g., MANUAL
supra, at M-1-15.
Section 23.175 of the Tax Code provides special rules for the appraisal of a real property
interest in oil or gas in place when the appraisal takes into account the future income from the sale
of oil or gas to be produced from the interest. See TEX. TAX CODEANN. 8 23.175(a) (Vernon Supp.
2001) (“If a real property interest in oil or gas in place is appraised by a method that takes into
account the future income from the sale of oil or gas to be produced from the interest, the method
must use the average price of the oil or gas from the interest for the preceding year as the price at
which the oil or gas produced from the interest is projected to be sold in the current year of the
appraisal.“). This provision also requires the Comptroller by rule to develop and distribute to each
appraisal office appraisal manuals that specify methods and procedures to discount future income
from the sale of oil or gas from the interest to present value and requires each appraisal office to use
the methods and procedures specified by these appraisal manuals. See id. 9 23.175(b), (c). The
Comptroller has complied with this legislative directive by promulgating a lengthy rule on
discounting oil and gas income. See 34 TEX. ADMIN. CODE 5 9.4031 (2001) (Tex. Comptroller of
Public Accounts, Manual for Discounting Oil and Gas Income). We also note that section 23.17 of
the Tax Code establishes a special rule for the appraisal of certain types of mineral interests that are
not in production, but is not applicable here. See TEX. TAX CODE ANN. 5 23.17 (Vernon 1992).
We have located only one other provision in the Tax Code that deals with the appraisal of
mineral interests for purposes of ad valorem taxation. Section 41.455 of the Tax Code addresses a
tax protest involving a pooled or unitized mineral interest that is being produced in more than one
appraisal district. Subsection (b) of this provision specifically addresses protests involving pooled
or unitized mineral interests that are being produced at two or more production sites located in more
than one county:
(b) If a property owner files protests relating to a pooled or
unitized mineral interest that is being produced at two or more
production sites located in more than one county with the appraisal
review boards of more than one appraisal district and at least
two-thirds of the surface area of the mineral interest is located in the
county for which one of the appraisal districts is established, the
The Honorable Pat Phelan - Page 6 (JC-0436)
The Honorable G. Dwayne Pruitt
appraisal review board for that appraisal district must determine the
protest filed with that board and make its decision before another
appraisal review board may hold a hearing to determine the protest
filed with that other board.
Id. fj 41.455(b) (V emon Supp. 2001). We note, however, that this provision deals with the proper
procedures to follow when a property owner files a protest rather than how a mineral interest that
extends across a county line should be appraised in the first place.
Again, you ask about the proper valuation of a mineral interest that appertains to surface
property that extends across a county line. The Tax Code does not directly address this situation.
Attorney General Opinion DM-490, which you both cite, is relevant to your query, but does not
resolve it. See Tex. Att’y Gen. Op. No. DM-490 (1998). That opinion considered the taxation of
royalty interests in a pooled gas unit sharing income from a well located in one school district, but
which appertained to surface property located in both that school district and another. See id. at 1.
Only the school district where the well was located had been taxing the royalty interests. This office
was asked whether a taxing unit is entitled to tax royalty interests based upon the location of the well
or based upon the location of surface property to which the royalty interests appertain. See id.
Based upon case law establishing that the taxable situs of a royalty interest is the location of the
surface property to which it appertains, see id. at 2; see also cases cited supra page 3, we concluded
that a taxing unit is entitled to assess ad valorem taxes against a royalty interest based upon the
location of the surface property to which the royalty interest appertains.
Here, the question is not whether each county is entitled to tax the mineral interest at issue
but rather how the mineral interest should be valued in each county. Under the Tax Code and our
prior opinion, we conclude that each county is limited to valuing the mineral interest only as it
appertains to surface property located in the county. See Tex. Att’y Gen. Op. No. DM-490 (1998)
(taxable situs of mineral interest is location of surface property to which it appertains); TEX. TAX
CODEANN. $5 25.01 (appraisal records must list and state appraised value of taxable property), 25.17
(“If real property is located partially outside and partially inside a taxing unit’s boundaries, the
portion inside the unit’s boundaries shall be listed separately from the remaining portion.“) (Vernon
1992); see also TEX. CONST. art. VIII, 9 11 (“All property. . . shall be assessed for taxation, and the
taxes paid in the county where situated”). Furthermore, each county must appraise the mineral
interest as it appertains to surface property located in the county at its market value as of January 1,
using generally accepted appraisal methods and techniques. See TEX. TAX CODE ANN. 8 23.01
(Vernon Supp. 2001). “The same or similar appraisal methods and techniques shall be used in
appraising the same or similar kinds of property. However, each property shall be appraised based
upon the individual characteristics that affect the property’s market value.” Id. Special rules and
considerations must be taken into account in the appraisal of mineral interests, see, e.g., id. 8 23.175;
34 TEX. ADMIN. CODE 5 9.403 1 (2001); MANUAL, supra; the income approach is generally the most
appropriate method, see Destec, 6 SW. 3d at 60; MANUAL, at M-l 5.
The Honorable Pat Phelan - Page 7 (JC-0436)
The Honorable G. Dwayne Pruitt
You specifically ask whether the counties should allocate the mineral interest “based: (1) on
the ratio of surface acreage covered under the lease attributable to each county, or (2) on an
engineering analysis of the reservoir, the production of minerals, and the remaining recoverable
reserves present in each county.” Hockley County Request Letter, supra note 1, at 1-2; Terry
County Request Letter, supra note 1, at 1. The Tax Code requires each county to separately
determine the market value of the mineral interest only as it pertains to surface estate located in the
county according to generally accepted appraisal methods. See TEX. TAX CODEANN. 8 5 23 .O1-.O13,
.175 (Vernon 1992 & Supp. 2001); 34 TEX. ADMIN. CODE 5 9.4031 (2001). This will generally
involve entirely separate appraisals. In the event, however, that the market value of the mineral
interest is uniform across the surface estate, then simply determining the market value of the entire
mineral interest and allocating that value according to the ratio of surface acreage located in each
county may be an appropriate method of appraising the market value of the mineral interest. This
may be the case, for example, if the mineral interest owners have entered into a pooling agreement
or some other kind of contractual arrangement that allocates production revenue based on surface
acreage, or if the mineral itself is evenly distributed across the surface estate.
If, on the other hand, the market value is not uniform across the surface estate, then simply
allocating the value of the entire mineral interest based on surface acreage is not appropriate. The
appropriate method in that case is to appraise the mineral interest in each county based upon
generally accepted appraisal methods. These methods would normally include an analysis of the
income to be produced from the mineral interest in the county, which would take into account
geological and engineering information such as the productivity of the wells located in the county,
reservoir characteristics, remaining recoverable reserves and the likelihood of recovery. See, e.g.,
MANUAL, supra, at M- 1- 15. In this case, the actual location of the mineral is important to the extent
it affects the market value of the mineral interest in each county.
Hockley County asserts with respect to one oil and gas lease that the mineral interest owners
share in the revenues from all seven wells “dependent only on the relative contribution of the interest
owner’s land to the lease as a whole,” Hockley County Brief, at 2 (attached to Hockley County
Request Letter, supra note l), suggesting that, under the income method of appraisal, the market
value of at least some of the mineral interests in the oil and gas lease may be uniform across the
surface estate. This, however, is not an issue that we can resolve in an attorney general opinion. The
valuation of mineral interests is both fact-bound and highly technical. See, e.g., MANUAL, supra at
M-l (“The appraisal of mineral properties is a highly technical field normally requiring extensive ,
knowledge and training on the part of the appraiser.“) As this office does not make findings of fact3
and has no particular expertise in the accounting and geological issues involved in appraisal of
mineral interests, we cannot ultimately determine the market value of a mineral interest as it pertains
to the surface estate in each of your counties.
3See attorney general opinions cited supra page 1.
The Honorable Pat Phelan - Page 8 (JC-0436)
The Honorable G. Dwayne Pruitt
SUMMARY
When a mineral interest appertains to surface property that
crosses a county line, each county must separately determine the
market value of the mineral interest only as it pertains to surface
property located in the county according to generally accepted
appraisal methods. See TEX. TAX CODE ANN. $3 23.01-.013, .175
(Vernon 1992 & Supp. 2001); 34 TEX. ADMIN. CODE 8 9.403 1
(2001). If the market value of the mineral interest is uniform across
the surface estate, simply determining the market value of the entire
mineral interest and allocating that value according to the ratio of
surface acreage located in each county may be an appropriate method
of appraising the market value of the mineral interest. If, on the other
hand, the market value is not uniform across the surface estate,
simply allocating the value of the entire mineral interest based on
surface acreage is not appropriate.
JOHN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4176252/ | Citation Nr: 1714093
Decision Date: 04/28/17 Archive Date: 05/05/17
DOCKET NO. 10-22 746 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for sleep apnea.
2. Entitlement to service connection for a right foot disorder other than gout.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Cannon, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army from May 1984 to September 1992, from August 1999 to April 2000, from February 2001 to October 2001, from February 2003 to April 2004, and from August 2010 to December 2011. He was honorably discharged.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
In September 2015 the Veteran appeared before the undersigned via video conference hearing. A transcript of that hearing is of record.
In November 2015, the Board remanded the claims to obtain medical opinions regarding the nature and etiology of the Veteran's sleep apnea, right foot disorder other than gout, and skin disorder. In a July 2016 rating decision, the RO granted service connection for the Veteran's skin disorder.
The claim has now been returned to the Board for review. Upon reviewing the development since November 2015, the Board finds there has been substantial compliance with its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance"); Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).
The issue of entitlement to service connection for a right foot disorder other than gout is addressed in the REMAND portion of the decision below and is REMANDED to the RO.
FINDING OF FACT
The Veteran has provided sufficient evidence to support a current diagnosis of sleep apnea, in-service onset, and a nexus between the two.
CONCLUSION OF LAW
The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case.
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
By correspondence, including that dated November 2008 and December 2008, the Veteran was informed of the evidence and information necessary to substantiate the service connection claims, the information required of the Veteran to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. This notice was completed prior to the initial RO adjudication of the claims. The duty to notify has been met.
The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. Further, the VA medical examination and opinions are adequate, as they are predicated on a substantial review of the record and medical findings, and consider the Veteran's complaints and symptoms. 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4).
II. Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Two medical opinions of record indicate that the Veteran has been diagnosed with sleep apnea and is currently being treated for this disorder. See February 2016 VA medical examination; Dr. H.'s May 2010 private medical opinion. The Veteran has testified that he was exposed to burn pits during his 2003 deployment to Iraq and that this exposure caused sleep apnea. See Dr. H.'s May 2010 private medical opinion. His wife has testified that her husband began to snore and have problems sleeping after his return from this deployment. October 2015 personal statement. These pieces of evidence are sufficient to establish the first two elements of service connection.
Dr. H.'s May 2010 private medical opinion provides a nexus between the Veteran's sleep apnea and service. Dr. H. notes that exposure to burn pits has been associated with an increased incidence of sleep apnea. Because of the Veteran's exposure to burn pits and the correlation between burn pit exposure and sleep apnea, Dr. H. concludes that it is at least as likely as not that the Veteran's sleep apnea is related to service. This medical opinion is probative because it is based on a review of the record, sufficient facts and data, and contains clear conclusions with supporting data connected with a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-02 (2008).
A February 2016 VA medical opinion indicates that there is no nexus between the Veteran's sleep apnea and service. This opinion does not address exposure to burn pits. The VA examiner's conclusion is based on the fact that there was no onset of sleep apnea during service and the Veteran did not seek treatment for sleep apnea during service. This medical opinion is inadequate, in that it does not consider the Veteran's arguments concerning burn pits. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (an examiner cannot base a medical opinion on the lack of evidence in-service treatment records while ignoring lay statements regarding symptomology).
Even assuming the adequacy of the VA opinion, the evidence in favor of a nexus would still be in equipoise with the evidence against a nexus. A new VA medical examination that considers the Veteran's arguments about exposure to burn pits is unnecessary because even if a negative, well-grounded opinion was returned, the evidence would remain in equipoise, in which case the Veteran would prevail. Gilbert, 1 Vet. App. at 49.
ORDER
Entitlement to service connection for sleep apnea is granted.
REMAND
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). "A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Id. at 311 (internal citations and quotations omitted). In evaluating the probative value of medical opinion evidence, the Board may consider the following factors: (1) whether the testimony is based upon sufficient facts or data; (2) whether the testimony is the product of reliable principles and methods; and (3) whether the expert witness has applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez, 22 Vet. App. at 302. Additionally, the medical opinion must provide the requisite degree of certainty for a medical nexus, which is whether it is at least as likely as not (a 50 percent or better probability) that the disorder was incurred during the veteran's service. See Bloom v. West, 12 Vet. App. 185, 187 (Vet. App. 1999) (holding that "using the term 'could,' without supporting data . . . is too speculative"). It is important that a medical examiner provide this information, because "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Stefl, 21 Vet. App. at 124 (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)).
With regard to the Veteran's ankle disorder, all three medical opinions of record are inadequate. The two private medical opinions are inadequate for failure to describe the Veteran's foot disability in sufficient detail. Dr. W.'s May 2010 opinion states that the Veteran's right foot condition is service-connected. A December 7, 2012, opinion states that the Veteran's right ankle pain is service-connected. Since the Veteran was granted service connection for gout on December 18, 2012, it is not clear as to whether the private examiners were referring to gout or the condition for which the Veteran now seeks service connection.
The February 2016 VA medical examination regarding the Veteran's ankle disability reads as follows: "Veteran does not have any other foot condition other than history of gout. He does not have flare-ups of gout any more. But he feels stiff in his right great toe. Gout does not affect his ability to perform [his] daily day to day activities."
The examiner's opening premise that the Veteran "does not have any other foot condition than history of gout" is incorrect. The Board notes that the Veteran is service-connected for: 1) gout; and 2) post-operative, right ankle fracture, medial malleolus, with loose body removal. The Veteran's service treatment records regularly mention localized osteoarthritis of the ankle, ankle pain, swelling of the ankles with blue discoloration, and a 1989 to remove bone chips. Private treatment records from February 2012 also indicate swelling. A November 2011 radiologic report describes bilateral ankle pain. Failure to consider this history means that the examination was not premised on sufficient facts, rendering the medical opinion inadequate. See Nieves-Rodriguez, 22 Vet. App. at 301-02. A new medical opinion is required.
VA treatment records to September 2015 have been associated with the claims file. Therefore, the RO should obtain all relevant VA treatment records dated from September 2015 to the present before the remaining issues are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. Associate with the claims folder all records of the Veteran's VA treatment from September 2015 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.
2. After obtaining any additional records to the extent possible, obtain medical opinions regarding the following:
a. Whether the Veteran has any current right foot disorder for which the Veteran is not already service-connected (the Veteran is already service-connected for (i) gout and (ii) post-operative, right ankle fracture, medial malleolus, with loose body removal); and
b. Whether it is at least as likely as not (a 50 percent or better probability) that any current right foot disorder for which the Veteran is not already service-connected was incurred in or aggravated by the Veteran's service.
In rendering this opinion, the examiner should consider the Veteran's September 2015 hearing testimony, particularly pages 24-25, where the Veteran and his counsel discuss the foot disorder for which the Veteran is currently seeking service connection.
The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.
The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion.
The claims file should be provided to the examiner in connection with the examination and the examiner should indicate that the Veteran's C-file (or e-folder) has been reviewed.
3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case and give an opportunity to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 01-03-2023 | 06-09-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126537/ | DISMISS and Opinion Filed February 8, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01366-CV
NERISSA ONA, Appellant
V.
JULIANITO SAMSON CLEMENTE, Appellee
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-02904-2015
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
By letter dated January 6, 2017, the Court questioned its jurisdiction over this appeal
because the notice was untimely. The notice of appeal was, however, filed within fifteen days of
the deadline. For this reason, we informed appellant that she could remedy the timeliness
problem by filing, by January 17, 2017, a motion for extension of time to file the notice of
appeal. See TEX. R. APP. P. 26.3. We cautioned appellant that failure to file an extension motion
by the specified date may result in dismissal of the appeal for want of jurisdiction without further
notice. As of today’s date, appellant has not filed an extension motion.
Absent a timely post-judgment motion extending the appellate timetable, a notice of
appeal is due thirty days after the date the judgment is signed or, with an extension motion, forty-
five days after the date the judgment is signed. See TEX. R. APP. P. 26.1, 26.3. Without a timely
filed notice of appeal, this Court lacks jurisdiction. See TEX. R. APP. P. 25.1(b).
The trial court signed the judgment on October 13, 2016. Appellant did not file a timely
post-judgment motion extending the appellate timetable. Accordingly, the notice of appeal was
due on Monday, November 14, 2016. See TEX. R. APP. P. 4.1(a), 26.1. Appellant filed a notice
of appeal on November 17, 2016, three days past the deadline.
Counsel for appellee filed a letter stating that he believes Defendant’s Motion to Correct
Clerical Errors in Final Summary Judgment filed on October 18, 2016 served to extend the
appellate deadlines. See TEX. R. CIV. P. 316. We disagree. A rule 316 motion to correct clerical
errors does not extend the time for perfecting an appeal. See TEX. R. CIV. P. 329b(g).
Appellant failed to file a timely notice of appeal or seek an extension of time.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
161366F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NERISSA ONA, Appellant On Appeal from the 417th Judicial District
Court, Collin County, Texas
No. 05-16-01366-CV V. Trial Court Cause No. 417-02904-2015.
Opinion delivered by Chief Justice Wright.
JULIANITO SAMSON CLEMENTE, Justices Lang-Miers and Stoddart
Appellee participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee JULIANITO SAMSON CLEMENTE recover his costs of
this appeal from appellant NERISSA ONA.
Judgment entered February 8, 2017.
–3– | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289020/ | Arlene Q. Stevens, et al. v. Prettyman Manor Mobile Home Park Wastewater Treatment
Plant, No. 487, September Term, 2017. Opinion filed on June 27, 2018, by Berger, J.
ENVIRONMENTAL LAW - DISCHARGE PERMITS - NOTICE AND COMMENT
We defer to MDE’s reasonable interpretation of an ambiguous term in a statute that it
administers.
ENVIRONMENTAL LAW - DISCHARGE PERMITS - NOTICE AND COMMENT
The term “application” in Env’t Law § 1-603 and Env’t Law § 9-324 is ambiguous as
applied to a revised application.
ENVIRONMENTAL LAW - DISCHARGE PERMITS - NOTICE AND COMMENT
MDE reasonably interpreted the term “application” in Env’t Law § 1-603 and Env’t Law
§ 9-324 as encompassing an initial application and subsequent revisions “which do not
substantially change the permitted activity.”
ENVIRONMENTAL LAW - DISCHARGE PERMITS - NOTICE AND COMMENT
MDE was not required to publish a second notice of application after the appellant
submitted a revised application where the changes were not substantial and did not prevent
the public from participating in the permitting process.
ENVIRONMENTAL LAW - DISCHARGE PERMITS - JUDICIAL REVIEW
Appellants were barred from challenging the total suspended solids limit in an NPDES
permit on appeal because they failed to raise the issue in the comment period.
Circuit Court for Caroline County
Case No. 05-C-15-018616
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 487
September Term, 2017
______________________________________
ARLENE Q. STEVENS, ET AL.
v.
PRETTYMAN MANOR MOBILE HOME
PARK WASTEWATER TREATMENT
PLANT
______________________________________
Berger,
Shaw Geter,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Berger, J.
______________________________________
Filed: June 27, 2018
This case is an appeal from a judgment entered on judicial review of an
administrative decision. In 2015, the Maryland Department of the Environment (“MDE”)
issued a permit (“the Permit”) to Prettyman Manor, LLC (“Prettyman”), appellee, to
discharge treated wastewater into Little Creek, a tributary of the Choptank River. Arlene
Q. Stevens and Mildred Quidas (collectively, “Stevens and Quidas”), appellants, filed a
petition for judicial review in the Circuit Court for Caroline County. The circuit court
affirmed MDE’s decision to issue the discharge permit.
On appeal, Stevens and Quidas present two questions for our review, which we have
rephrased as follows:
1. Whether MDE failed to publish proper notice of
Prettyman’s application before issuing the Permit.
2. Whether the Permit allows an unlawful discharge of total
suspended solids into an impaired water in violation of state
and federal water quality standards.1
For the reasons explained herein, we shall affirm the judgment of the circuit court.
1
In an appeal from a judgment entered on judicial review of an administrative
decision, we review “the agency’s decision, and not that of the circuit court.” Assateague
Coastkeeper v. Maryland Dep’t of Env’t, 200 Md. App. 665, 691 (2011). Accordingly, we
have reframed the questions presented by Stevens and Quidas to focus on MDE’s permit
decision, rather than any alleged error on the part of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
I. Regulatory Background
A. The Clean Water Act and the National Pollutant Discharge Elimination
System
Congress enacted the Clean Water Act (“the CWA”) in 1972 to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). To this end, the CWA prohibits the discharge of any pollutant to waters of the
United States without a permit issued through the National Pollutant Discharge Elimination
System (“NPDES”). 33 U.S.C. § 1251(a)(1); 33 U.S.C. § 1311(a); 33 U.S.C. § 1342(a)(1).
The CWA requires that every NPDES permit contain
(1) effluent limitations that reflect the pollution reduction
achievable by using technologically practicable controls and
(2) any more stringent pollutant release limitations necessary
for the waterway receiving the pollutant to meet “water quality
standards.”
Piney See Run Preservation Ass’n v. Cnty. Commissioners of Carroll Cnty., 268 F.3d 255,
266 (4th Cir. 2001) (quoting Am. Paper Inst., Inc. v. U.S. E.P.A., 996 F.2d 346, 349 (D.C.
Cir. 1993)).
Pursuant to 33 U.S.C. § 1313(d), states are required to identify all waters within
their respective boundaries where technology-based effluent limitations are inadequate to
ensure that water quality standards are being met. For each impaired water, a state must
establish a total maximum daily load (“TMDL”) for every pollutant that is preventing the
water from meeting water quality standards. 33 U.S.C. § 1313(d). Under 40 C.F.R. §
122.4(i), no permit may be issued “[t]o a new source or a new discharger, if the discharge
2
from its construction or operation will cause or contribute to the violation of water quality
standards.” When an applicant for an NPDES permit proposes to discharge a pollutant into
an impaired body of water subject to a TMDL for that pollutant, the applicant must
demonstrate that
(1) [t]here are sufficient remaining pollutant load allocations to
allow for the discharge; and
(2) [t]he existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into
compliance with applicable water quality standards. The
Director may waive the submission of information by the new
source or new discharger required by paragraph (i) of this
section if the Director determines that the Director already has
adequate information to evaluate the request.
40 C.F.R. § 122.4(i).
MDE is authorized to issue NPDES permits for discharges in Maryland. Maryland
Code (1986, 2014 Repl. Vol., 2016 Supp.), § 9-324 of the Environment Article (“Env’t”);
see also Piney See Run Preservation Ass’n, supra, 268 F.3d at 266 (noting that “EPA has
authorized approximately forty states, including Maryland, to issue NPDES permits”).
When issuing NPDES permits for wastewater treatment plants (“WWTPs”), MDE must
ensure that the proposed designs comply with technology-based effluent limitations as well
as specific limitations for total suspended solids (“TSS”), biochemical oxygen demand,
and pH levels. 40 C.F.R. § 133.100 et seq. Pursuant to 40 C.F.R. § 122.4(i), MDE must
also ensure that a new discharge to an impaired body of water does not violate applicable
TMDLs.
3
B. Notice and Comment Procedures for NPDES Permits
MDE is required to publish notice for each application for an NPDES permit. Env’t
§ 1-603; Env’t § 9-324. The notice of application must include the following information:
a) The name of the applicant;
b) The type of permit applied for;
c) The type of proposed discharge;
d) The volume of the proposed discharge;
e) The location of the proposed discharge;
f) A statement that persons may review and copy the
application or related material and the procedure for doing
so;
g) A statement that the Department shall hold an
informational meeting, if a person makes a written request
within 10 working days of the publication of the notice, and
the procedure for requesting an informational meeting; and
h) Other information the Department determines is necessary
for adequate public notification.
COMAR 26.08.04.01-1(D).
Upon receiving an application for an NPDES permit, MDE “shall prepare a tentative
determination[.]” Env’t § 1-604; COMAR 26.08.04.01-2(B)(1)(a). MDE must then
publish -- or require the applicant to publish -- a notice of tentative determination that
includes the following information:
4
(i) The information in §B(1)(a) of this regulation;2
(ii) The procedures for a person to review and copy the
tentative determination, draft permit, or related
material;
(iii) A statement allowing 30 days for public comment to the
notice of tentative determination before the issuance of
the final determination and the procedures for offering
public comment;
(iv) A statement that the Department shall hold a public
hearing when a written request for a public hearing is
made within 20 days of the publication of the notice of
tentative determination and the procedure for making a
written request for a public hearing; and
(v) Other information the Department considers necessary
to ensure adequate public notice.
COMAR 26.08.04.01-2(B)(2)(b). After the public comment period closes, MDE may
proceed to make a final determination and issue the permit. COMAR 26.08.04.01-3.
II. Factual and Procedural Background
Stevens and Quidas own two parcels in Preston, Maryland. One of the parcels is
located at 3740 Frazier Neck Road, while the other is located at 21355 Marsh Creek Road.
For more than fifty years, Stevens and Quidas have grown vegetables on their property
(hereinafter “Quidas Farm”) as their primary source of income. To irrigate their crops,
Stevens and Quidas draw water from a retaining pond that they constructed by diverting
water from Little Creek, a tidal tributary of the Choptank River. Maryland has identified
2
This information includes, inter alia, “[a] proposal to issue or not issue the permit,”
“[t]he type, volume, and location of the proposed discharge,” “[p]roposed permit
limitations and conditions,” and “[a] brief explanation of the Department’s tentative
decision.” COMAR 26.08.04.01-2(B)(1)(a).
5
this segment of the Choptank River as impaired due to excess nitrogen, phosphorus, TSS,
and other pollutants.
Directly across from Quidas Farm on Little Creek is a mobile home park
(“Prettyman Manor”) owned and operated by Prettyman. Located at 21269 Dover Bridge
Road, Prettyman Manor has been home to dozens of families for decades. Over time, the
sewage generated by the residents of Prettyman Manor has overwhelmed the park’s aging
septic tanks and drainfields. Eventually, MDE initiated an enforcement action, forcing
Prettyman to pump and haul the sewage from the failing on-site disposal systems to a
treatment facility in Dorchester County. Thereafter, Prettyman decided to build an on-site
WWTP to service Prettyman Manor.
A. Prettyman’s 2012 Application for a Discharge Permit
In April of 2012, Prettyman submitted an application for a discharge permit to
discharge treated wastewater from the proposed WWTP into Little Creek (“the 2012
Application”). According to the 2012 Application, the proposed facility would treat up to
40,000 gallons per day using extended aeration technology. MDE published notice of the
2012 Application in The Times Record on August 8, 2012 and August 15, 2012 (“the 2012
Notice”). MDE did not receive any requests for an informational meeting.
MDE quickly determined that the 2012 Application was not consistent with the
Caroline County Water and Sewer Plan. On August 24, 2012, MDE gave Prettyman an
update on the status of the 2012 Application:
In reviewing your discharge permit application for the
proposed Prettyman Manor WWTP, we have found that your
proposal is not consistent with the Caroline County Water and
6
Sewer Plan. We cannot issue a wastewater surface water
discharge permit until the proposed facility is consistent with
the county Plan and have suspended further processing of your
application. However, to assist you in making a determination
whether to proceed with the project, we will develop planning
effluent limitations which are needed to estimate potential
costs for the project.
In October of 2012, MDE helped Prettyman determine the best point of discharge for the
proposed WWTP. In December of 2013, MDE met with Prettyman to discuss, among
other things, the possibility of amending the Caroline County Water and Sewer Plan.
B. Prettyman’s 2014 Revised Application for a Discharge Permit
On July 21, 2014, Prettyman submitted a revised permit application (“the 2014
Revision”). In the 2014 Revision, Prettyman proposed using a membrane bioreactor rather
than extended aeration technology in order to meet MDE’s enhanced nutrient removal
standards. The new design also lowered the treatment capacity from 40,000 gallons per
day to 20,000 gallons per day. Additionally, Prettyman changed the outfall location from
the southwest corner of Prettyman Manor to the southeast portion of the property. MDE
processed the 2012 Revision under the same NPDES number as the 2014 Application and
did not publish a new notice of application.
Because Little Creek was impaired by excess amounts of phosphorus and nitrogen,
MDE required Prettyman to secure offsets in the form of total nitrogen (“TN”) credits and
total phosphorus (“TP”) credits. To obtain the necessary TN credits, Prettyman had to
eliminate eighty on-site disposal systems. To obtain the necessary TP credits, Prettyman
entered into a nutrient credit transfer agreement with the Town of Denton.
7
On February 5, 2015, MDE provided Prettyman with effluent limits for the purpose
of planning the wastewater treatment system. That same month, the Caroline County
Commissioners amended the Caroline County Water and Sewer Plan to authorize the
treatment technology and discharge volume proposed in the 2014 Revision. On July 28,
2015, MDE notified Prettyman and other interested parties of its tentative determination to
issue the Permit.
C. Tentative Determination, Comment Period, and Final Determination
MDE published a notice of tentative determination in The Times Record on
August 5, 2015 and August 12, 2015. The notice included the following information:
(1) the location of the WWTP; (2) the water that would receive the discharge; (3) the
effluent limits; (4) details of the nutrient credit agreement with the Town of Denton; (5) the
deadline for requesting a public hearing; and (6) the deadline for submitting comments,
which was September 4, 2015.
There was no request for a public hearing. On September 2, 2015, Stevens and
Quidas sent a letter to MDE expressing their concern about the potential environmental
impact of the project and requesting a meeting. MDE met with Stevens and Quidas on
September 15, 2015. According to a letter from MDE to Prettyman’s contractor, “[t]he
neighboring farmers had concerns about potential bacterial contamination of their produce
and they requested a few more days to take our proposed effluent bacterial limit and run it
by their inspector before sending something in writing.”
On September 27, 2015, Stevens and Quidas sent a letter to MDE with additional
questions and comments. MDE responded on October 21, 2015 with a detailed letter
8
addressing each issue raised by Stevens and Quidas. Regarding the effect of the proposed
WWTP on the Quidas Farm irrigation pond, MDE wrote the following:
In addition, information of stage of the stream and wet trace
observed during our site visit, and a Digital Elevation Model
(DEM) (USGS, 2009) of Little Creek were analyzed to
determine the tidal boundary of the Creek, and the runoff
drainage pattern for the landscape above the proposed outfall
location. The DEM indicates the tidal boundary is 670 ft
upstream of the point of discharge. Given your property is 850
ft upstream from the proposed outfall location and the stream
bed elevation beside your property is 3 ft above the stream bed
elevation adjacent to the proposed outfall location, there is no
reasonable potential the irrigation pond will be affected by the
proposed discharge under normal circumstances (water profile
modeled by HEC-RAS using DEM data, attachment pages 5-
6).
MDE provided Prettyman with the final discharge permit on October 27, 2015 and
published notice of its final determination in The Times Record on November 11, 2015 and
November 18, 2015. On December 11, 2015, Stevens and Quidas filed a petition for
judicial review in the Circuit Court for Caroline County.
D. Judicial Review
The circuit court held a hearing on December 12, 2016. At the hearing, Stevens and
Quidas argued that the Permit was invalid because MDE failed to publish notice of the
2014 Revision. Stevens and Quidas further argued that the Permit unlawfully allowed
Prettyman to discharge TSS into a body of water already impaired by excess TSS levels
without requiring any offsets. MDE argued that the 2012 Notice was sufficient and that
Stevens and Quidas had waived any objection to the TSS limit specified in the Permit. In
a memorandum opinion and order issued on March 22, 2017, the circuit court found that
9
MDE had “acted properly within its authority and did not err by granting the discharge
permit in this matter[.]” Stevens and Quidas timely appealed.
DISCUSSION
I. Standard of Review
In reviewing a decision by MDE to issue a discharge permit, we apply the
substantial evidence and arbitrary and capricious standards of review. Maryland Dep’t of
Env’t v. Anacostia Riverkeeper, 447 Md. 88, 118-19 (2016), reconsideration denied (May
20, 2016). In Assateague Coastkeeper v. Maryland Dep’t of Env’t, we explained the
substantial evidence standard as follows:
In applying the substantial evidence test, a reviewing court
decides “whether a reasoning mind reasonably could have
reached the factual conclusion the agency reached.” A
reviewing court should defer to the agency’s fact-finding and
drawing of inferences if they are supported by the record. A
reviewing court “must review the agency’s decision in the light
most favorable to it; . . . the agency’s decision is prima facie
correct and presumed valid, and . . . it is the agency’s province
to resolve conflicting evidence” and to draw inferences from
that evidence.
200 Md. App. 665, 690 (2011) (quoting Najafi v. Motor Vehicle Admin., 418 Md. 164, 173-
74 (2011)).
Under the arbitrary and capricious standard of review, we consider whether the
agency “relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.” Anacostia
10
Riverkeeper, supra, 447 Md. at 121 (quoting Nat. Res. Def. Council v. U.S. E.P.A., 808
F.3d 556, 569 (2d Cir. 2015))
“When an agency resolves a question of law, however, our review is less
deferential.” HNS Dev., LLC v. People’s Counsel for Baltimore Cty., 425 Md. 436, 449
(2012)). “We refuse to uphold an agency decision ‘premised solely upon an erroneous
conclusion of law.’” Anacostia Riverkeeper, supra, 447 Md. at 122 (quoting HNS Dev.,
LLC, supra, 425 Md. at 449). Nevertheless, we give deference to an administrative
agency’s interpretation of the law in certain cases:
Despite some unfortunate language that has crept into a few of
our opinions, a court’s task on review is not to “substitute its
judgment for the expertise of those persons who constitute the
administrative agency.” Even with regard to some legal issues,
a degree of deference should often be accorded the position of
the administrative agency. Thus, an administrative agency’s
interpretation and application of the statute which the agency
administers should ordinarily be given considerable weight by
reviewing courts. Furthermore, the expertise of the agency in
its own field should be respected.
Assateague Coastkeeper, supra, 200 Md. App. at 690-91 (quoting Najafi v. Motor Vehicle
Admin., 418 Md. 164, 173-74 (2011)).
II. MDE Was Not Required to Publish Notice of the 2014 Revision
MDE acknowledges that it did not publish notice upon receiving Prettyman’s 2014
Revision. MDE argues, however, that the 2014 Revision was not a new application, but
merely a revised version of the 2012 Application. Stevens and Quidas, on the other hand,
assert that the 2014 Revision and the 2012 Application were “materially different” and
11
that, consequently, each plan required a separate public notice.3 The question before us,
therefore, is whether the 2014 Revision and the 2012 Application constitute a single
“application” under Maryland law. We hold that MDE’s interpretation of the notice
requirement is both reasonable and consistent with the CWA’s goal of public participation.
A. MDE’s Interpretation of the Notice Requirement Is Reasonable
MDE argues that “the regulation does not require the Department to continually
provide updates about revisions to a permit application, which do not substantially change
the permitted activity, prior to the Department’s issuance of a tentative determination.”
Although the underlying statutes and regulations are ambiguous on this point, we will not
substitute our judgment for MDE’s reasonable interpretation of the notice requirement.
Under Env’t § 1-603, MDE “shall cause to be published notice of applications for
[discharge] permits.” Likewise, Env’t § 9-324 provides that MDE “shall give public notice
of each application for a discharge permit as required by Title 1, Subtitle 6 of this article,
and by making available to the public appropriate documents, permit applications,
supporting material, plans, and other relevant information.” “After the Department
receives the discharge permit application, the Department shall prepare a tentative
determination[.]” Env’t § 1-604; COMAR 26.08.04.01-2(B)(1)(a). Neither the statutes
nor the regulations address whether a revised application should be treated as a new
3
Stevens and Quidas further argue that, prior to issuing the Permit, MDE allowed
Prettyman to construct a pipe that would result in a different outfall location. Assuming
arguendo that the actual outfall location differs from the location specified in the Permit,
such a discrepancy would be an issue of compliance rather than grounds for challenging
the Permit.
12
application for the purposes of the notice requirement. We must turn, therefore, to statutory
construction.
The “cardinal rule” of statutory construction is “to ascertain and effectuate the intent
of the Legislature.” Assateague Coastkeeper, supra, 200 Md. App. at 708-09 (quoting
Headen v. Motor Vehicle Admin., 418 Md. 559, 569 (2011)). “If, after considering the
plain language in its ordinary and common sense meaning, two or more equally plausible
interpretations arise, however, then the general purpose, legislative history, and language
of the act as a whole is examined in an effort to clarify the ambiguity.” Id. at 709 (quoting
Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 359 (2010)). “When applying these rules
of statutory construction, we give deference to an administrative agency’s interpretation of
the statutes it administers.” Headen v. Motor Vehicle Admin., 418 Md. 559, 570 (2011).
Our decision in Assateague Coastkeeper v. Maryland Dep’t of Env’t clarifies the
proper role of agency deference in matters of statutory construction. In that case, an
environmental group challenged an NPDES permit for animal feeding operations in
Maryland. Assateague Coastkeeper, supra, 200 Md. App. at 680-83. The basis of the
challenge was that the permit violated 40 CFR § 122.4(i), which prohibits the issuance of
a permit “[t]o a new source or a new discharger, if the discharge from its construction or
operation will cause or contribute to the violation of water quality standards.” Id. at 704-
05. MDE argued that a net reduction in the pollutant due to offsets should be considered
in determining whether a new discharger “causes or contributes” to a violation of water
quality standards. Id. at 706. In affirming MDE’s decision to issue the permit, we
determined that the phrase “cause or contribute” was “susceptible to two or more equally
13
plausible interpretations.” Id. at 710 (citations and quotation marks omitted). Recognizing
that MDE is tasked with “administering federal regulations regarding water quality
standards,” we held that MDE’s construction of 40 C.F.R. § 122.4(i) was “reasonable.” Id.
at 713-14. Accordingly, we declined to “substitute our judgment for that of the agency.”
Id. at 714.
Turning to the case at hand, the word “application” in the statutes and regulations is
ambiguous in the context of a revised application. Notably, the General Assembly left the
word undefined. In general usage, an application is a “request or petition” or “a form used
in making a request.” Application, Black’s Law Dictionary (10th ed. 2014); Application,
https://www.merriam-webster.com/dictionary/application. According to this definition, an
“application” could plausibly encompass both an initial request and subsequent revisions
to that request; just as plausibly, each subsequent revision could be considered an entirely
new “application.” We conclude, therefore, that the notice requirement as applied to
revised applications is “susceptible to two or more equally plausible interpretations.”
Inasmuch as the notice requirement is ambiguous, we give considerable weight to
MDE’s reasonable construction of that requirement. The General Assembly has explicitly
tasked MDE with administering the NPDES permit process in Maryland, including the
notice-and-comment requirements. Env’t § 9-324; Env’t 1-601 et seq. Indeed, MDE is
uniquely situated to determine whether a particular interpretation of the notice-and-
comment requirements would be practically feasible and consistent with the agency’s
overall mission. MDE may be wary of delays that would arise if every minor revision of
an application were to reset the process to the very beginning. Each revised application, in
14
turn, could lead to more revisions, and so on ad absurdum. Additionally, MDE can
reasonably expect a certain amount of flexibility in processing permits that implicate
competing interests among local communities. In the case at hand, for example, MDE had
determined that the replacement of the failing septic system was an urgent matter “for the
health and well being of the residents” of Prettyman Manor. We will defer, therefore, to
MDE’s expertise in the NPDES permit process.
In light of MDE’s expertise, we hold that MDE’s construction of the notice
requirement is reasonable. Indeed, the parties appear to be roughly in agreement as to the
appropriate standard for determining when a new notice of application is needed.
According to MDE, a new notice of application is unnecessary if the revisions “do not
substantially change the permitted activity”; Stevens and Quidas, on the other hand, assert
that a new notice is required if the revised plan is “materially different.” MDE’s
“substantial change” standard is consistent with Proffitt v. Rohm & Haas, in which the U.S.
Court of Appeals for the Third Circuit held that an amendment to an existing NPDES
permit requires public notice if the amendment “effects a substantial change in the terms
of the permit.” 850 F.2d 1007, 1012-13 (3d Cir. 1988).4 We hold, therefore, that MDE
4
Because Proffit involved an amendment to an existing permit, rather than a
revision to a pending application, it is not directly on point. EPA and state agencies may
have greater flexibility in publishing notices of application, so long as the notice of
tentative determination and subsequent comment period provide an adequate avenue of
public participation. The court in Proffitt was particularly concerned that EPA had
amended the NPDES permit without a public hearing or any opportunity for public
participation. Supra, 850 F.2d at 1012. Here, Stevens and Quidas had notice of the thirty-
day comment period, met with MDE, made comments on the 2014 Revision, and received
a detailed response.
15
reasonably interpreted the term “application” in Env’t § 1-603, Env’t § 9-324, and the
related regulations as encompassing an initial application and subsequent revisions “which
do not substantially change the permitted activity.”
B. The Procedures Followed by MDE Were Consistent with CWA’s Overall
Policy of Public Participation
We must now turn to the question of whether the 2014 Revision did, in fact,
represent a substantial change to the permitted activity. In undertaking this inquiry, we are
guided by the CWA’s emphasis on public participation:
Public participation in the development, revision, and
enforcement of any regulation, standard, effluent limitation,
plan, or program established by the Administrator or any State
under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States. The
Administrator, in cooperation with the States, shall develop
and publish regulations specifying minimum guidelines for
public participation in such processes.
33 U.S.C. § 1251(e); see Anacostia Riverkeeper, supra, 447 Md. at 179 (rejecting a
procedural challenge to an NPDES permit because MDE’s actions were consistent with
33.U.S.C. § 1251(e)). We hold that the changes in the 2014 Revision were minor and they
did not prevent Stevens and Quidas from fully participating in the permitting process.
The 2012 Notice published by MDE included the following information:
The Department will hold an informational meeting to discuss
any of the following discharge permit applications and the
permit review process if a written request is received by the
date specified below.
[. . .]
If you wish to be notified of further action concerning any of
the permit applications listed below, please call Mr.
16
Richardson or Mr. Cheng at the above telephone number and
request placement on the individual mailing list for that
permit.
[. . .]
State Discharge Permit Application 12-DP-3779, NPDES
Permit MD0071552:
Mr. Franklin W. Prettyman, Owner, 21269 Dover Bridge, Rd.,
Preston, MD 21655 applied for a new permit to discharge an
average of 40,000 gallons per day of treated domestic
wastewater from the Prettyman Manor Mobile Home Park
Wastewater Treatment Plant located at 21269 Dover Bridge
Rd. #6, in Preston, MD 21655 to Little Creek.
Publication Dates: August 8 and 15, 2012
Meeting Deadline: August 22, 2012
Stevens and Quidas argue that this notice was not sufficient to apprise affected residents of
the permit that was ultimately granted. We disagree.
Although the volume and location of the discharge changed somewhat between
2012 and 2014, these changes fell within the scope of the 2012 Notice. The effluent
discharge in the 2014 Revision was actually decreased from 40,000 gallons per day to
20,000 gallons per day. Given that nearby residents were already on notice of a proposed
discharge of up to 40,000 gallons per day, they could not have been surprised that the
Permit allowed a discharge within that range. More broadly, the change in the discharge
volume did not result in an increased environmental impact that would warrant additional
notice.
Stevens and Quidas argue that the “location of the outfall structure as proposed in
2012 was materially different than the location selected, and ultimately permitted, in the
2014 application.” Notably, the 2012 Notice stated only that the proposed facility would
17
discharge effluents “to Little Creek.” Although the precise point of discharge was moved
to a different part of Prettyman’s property, the body of water receiving the discharge --
Little Creek -- remained the same.5 Further, there is nothing in the record to suggest that
the new point of discharge would significantly change the environmental impact of the
permitted activity.6 We, therefore, conclude that the change in discharge location did not
deprive the public of a fair opportunity to participate in the process.
Stevens and Quidas claim that the 2012 Application was “wholly abandoned.” The
record shows, however, that MDE did not reject the 2012 Application. Instead, MDE
informed Prettyman that it would not issue a permit “until the proposed facility is consistent
with the county Plan[.]” Although MDE “suspended further processing” of the 2012
Application, MDE continued to work with Prettyman in 2012 and 2013 to bring the plan
into compliance.
Stevens and Quidas stress that “three (3) full years” passed between 2012 Notice
and the notice of tentative determination in 2015. While this is true, the 2012 Notice made
5
It is likely that an additional public notice for the 2014 Revision would have listed
“Little Creek” as the location of discharge. Stevens and Quidas contend that a notice of
application must include the “point of discharge,” which is defined as “that location in or
adjacent to a body of water at which any liquid, solid, or gaseous substances are discharged
or deposited.” COMAR 26.08.01.01(B)(64). Significantly, COMAR 26.08.04.01-1(D)
refers to “the location of the discharge” rather than “point of discharge.” This distinction
is reflected in the format of the 2012 Notice, which listed the general body of water that
would receive the discharge, rather than the exact coordinates.
6
Stevens and Quidas assert that the new point of discharge is “far worse” than the
old one. In both the 2012 Application and the 2014 Revision, however, the point of
discharge is downstream of the Quidas Farm irrigation pond. MDE found that “there is no
reasonable potential the irrigation pond will be affected by the proposed discharge under
normal circumstances.”
18
it clear that members of the public could ask “to be notified of further action” concerning
the application. Critically, Stevens and Quidas did not sign up for these notifications. Had
they done so, MDE would likely have alerted them to the 2014 Revision. Further, MDE
did not receive any request for an informational meeting after it published the 2012 Notice.
If residents were not alarmed by the 2012 Application, it is unclear why they would
suddenly be spurred into action by the 2014 Revision, which drastically cut the effluent
discharge.
Although MDE did not publish notice of the 2014 Revision, the 2012 Notice and
the notice of tentative determination published in 2014 were sufficient to place Stevens and
Quidas on notice of the proposed discharge. Indeed, MDE went beyond the statutory
requirements in ensuring that Stevens and Quidas had an opportunity to participate. MDE
held an informational meeting with Stevens and Quidas even though their request was
untimely.7 MDE further accommodated Stevens and Quidas by responding to their
September 27, 2015 letter, even though, as we explain infra, the comment period closed on
September 4, 2015. More broadly, the outcome of this particular proceeding -- a permit
with more stringent standards than those proposed in the initial application -- is the
expected and desired outcome of the public comment process. Accordingly, we reject
Stevens’s and Quidas’s contention that such an outcome is proof that the process was
flawed. We hold, therefore, that MDE “provided for, encouraged, and assisted” public
participation as Congress envisioned. 33 U.S.C. § 1251(e).
7
An informational meeting must be requested within ten working days of the notice
of application. COMAR 26.08.04.01-2(A).
19
III. Stevens and Quidas Waived Any Objection to the TSS Limits in the Permit
Stevens and Quidas argue that the TSS effluent limitation established in the Permit
violates 40 C.F.R. § 122.4(i), which prohibits the issuance of a permit “[t]o a new source
or a new discharger, if the discharge from its construction or operation will cause or
contribute to the violation of water quality standards.” MDE responds that “[p]etitioners
are prohibited from raising this issue on appeal . . . because they failed to raise it during
the public comment period.” We agree with MDE.
Judicial review of a permit decision by MDE is “on the administrative record and
limited to objections raised during the public comment” unless one of the following
exceptions applies:
(i) The objections were not reasonably ascertainable
during the comment period; or
(ii) Grounds for the objections arose after the comment
period.
Env’t § 1-601. The comment period extends for thirty days after the first notice of tentative
determination is published. Env’t § 1-604. This limitation on judicial review is consistent
with the rule that “a court ordinarily may not pass upon issues presented to it for the first
time on judicial review and that are not encompassed in the final decision of the
administrative agency.” Zakwieia v. Baltimore Cty., Bd. of Educ., 231 Md. App. 644, 649-
50 (2017), cert. denied sub nom. Zakwieia v. Baltimore Co. Bd. of Educ., 454 Md. 676
(2017).
In the present case, MDE published its first notice of tentative determination on
August 5, 2015. The comment period ended, consequently, on September 4, 2015. The
20
only comment made by Stevens and Quidas during this period was a letter, dated
September 2, 2015, in which Stevens and Quidas expressed some general concerns and
requested a meeting with MDE:
My family and I are property owners on Little Creek in
Caroline County and use it as a water source for irrigation of
vegetables and other agricultural products. We have concerns
with effects the proposed influx of treated wastewater and
nutrients may have in the future. We believe the potential
exists for detrimental environmental impact. As farmers and
family members who are income dependent on growing crops,
including some for human consumption, a major concern is
possible economic consequences this proposal may have on
our business.
[. . .]
I would appreciate meeting with you regarding this matter.
Please contact me at the above cell phone number at your
earlier convenience.
Although Stevens and Quidas followed up with specific objections in a letter dated
September 27, 2015, these objections were not made within the comment period.
The September 2, 2015 letter was not sufficient to put MDE on notice that Stevens
and Quidas would object to the TSS limit specified in the Permit. Critically, the September
2, 2015 letter does not raise any concrete objections to the proposed WWTP. Although
Stevens and Quidas referred generally to “the proposed influx of treated wastewater and
nutrients,” their concerns were couched in broad and indefinite language. Stevens and
Quidas were worried about “effects the proposed influx . . . may have in the future,” the
“potential . . . for detrimental impact,” and “possible economic consequences” (emphasis
added). The September 2, 2015 letter evinced no particular knowledge of the details of
21
either the 2012 Application or the 2014 Revision. The lack of detail and concluding request
for a meeting indicate that, as of September 2, 2015, Stevens and Quidas were primarily
seeking to learn more about the project, rather than to lodge a substantive objection
grounded in the specifics of the project.
Because the TSS issue was not properly raised in the comment period, we do not
have a complete administrative record that would support a review on the merits. MDE
claims that offsets for TSS levels were unnecessary in light of the expected overall
reduction of TSS levels under Maryland’s Phase II Watershed Implementation Plan for the
Chesapeake Bay TMDL (“WIP II”). Stevens and Quidas correctly point out that WIP II is
not part of the record. The dispute over WIP II only underscores our conclusion that the
record concerning the TSS levels was not properly developed prior to judicial review.
The record clearly demonstrates that MDE did not merely “rubber stamp”
Prettyman’s application; instead, MDE worked with Prettyman for three years to bring its
application into compliance. Among other things, MDE required Prettyman to offset the
expected levels of phosphorus and nitrogen in the WWTP discharge by eliminating eighty
on-site disposal systems and entering into a “nutrient transfer agreement” with the Town
of Denton. MDE held an informational meeting with Stevens and Quidas and provided a
detailed response to their untimely comment letter. Had Stevens and Quidas properly
raised the TSS issue, MDE would have had an opportunity to revise the Permit or, at the
very least, to explain its decision, as it did for every other objection raised by Stevens and
Quidas.
22
Stevens and Quidas argue that a neighboring farm family will not necessarily
“command the same grasp of the technical jargon employed in the Clean Water Act, State
statutes[,] and implementing regulations as only private experts, environmental attorneys,
and the agency itself would have [done].”8 Nevertheless, we cannot review an
administrative decision without a fully-developed record. The general concerns voiced by
Stevens and Quidas during the comment period were insufficient to generate such a record.
We do not fault Stevens and Quidas for failing to use “technical jargon.” Stevens and
Quidas may not, however, recast a request for an informational meeting as an all-purpose
objection preserving every issue they wish to raise.
Stevens and Quidas argue that the procedural bar of Env’t § 1-601 does not apply
here because the TSS issue “[was] not reasonably ascertainable during the comment
period.” We disagree. As we explain supra, the 2012 Notice was sufficient to apprise
concerned residents of the discharge permit that was ultimately issued in 2014.
Furthermore, the 2014 Revision imposed the same TSS limit as the 2012 Application.
Stevens and Quidas had nearly three years to review the TSS limit, study the relevant
statutes and regulations governing TSS levels, and formulate a specific objection to the
Permit on that basis. If Stevens and Quidas had questions about the TSS limit, they could
have requested an informational meeting in 2012. If the 2014 Revision gave rise to
additional questions, Stevens and Quidas could have requested a public hearing. In short,
8
We note, however, that Stevens and Quidas demonstrated in their September 27,
2015 letter to MDE that they are quite capable of articulating detailed and specific
challenges to an NPDES permit application.
23
Stevens and Quidas had ample opportunity to ascertain potential issues related to the TSS
limit, but they failed to do so. We hold, therefore, that the TSS issue has been waived.
The only question preserved for our review is whether MDE was required to publish
a second notice of application for the 2014 Revision. For the foregoing reasons, we hold
that MDE reasonably dispensed with the second notice of application, and that MDE’s
actions were consistent with the need to ensure public participation in the NPDES permit
process. We, therefore, affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT
FOR CAROLINE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
24 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289042/ | J-S18020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MICHAEL BOOK, :
:
Appellant : No. 1126 WDA 2017
Appeal from the Order July 20, 2017
in the Court of Common Pleas of Butler County,
Criminal Division at No(s): CP-10-CR-0000630-2016,
CP-10-CR-0001483-2015
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 27, 2018
Shawn Michael Book (“Book”) appeals from the Order denying his Motion
to bar a retrial, following the declaration of a mistrial in Book’s second jury
trial.1 We affirm.
In its Opinion, the trial court described the history underlying the instant
appeal, which we adopt as though fully restated herein. See Trial Court
Opinion, 7/20/17, at 1-15.
____________________________________________
1 This is an interlocutory appeal as of right. See Commonwealth v.
Hallman, 67 A.3d 1256, 1260 (Pa. Super. 2013) (recognizing that “a
defendant can immediately appeal as of right an order that denies a non-
frivolous motion to dismiss on state or federal double jeopardy grounds.”).
J-S18020-18
Book’s first jury trial, on the charges of burglary2 and related crimes,
ended in a mistrial.3 During his second jury trial, three incidents took place,
culminating in the trial court’s declaration of a mistrial, sua sponte. First,
Commonwealth witness Toni Arnold (“Arnold”) improperly referred to Book’s
prior incarceration, after which the trial court denied Book’s Motion for a
mistrial. See N.T., 4/17/17, at 226-27. Second, Book’s wife, Michelle Book
(“Michelle”), another Commonwealth witness, testified regarding privileged
communications between her and Book. See N.T., 4/18/17, at 56-58.
Counsel for Book objected to the testimony. Id. at 57-58. The trial court did
not rule on the objection, but no further testimony regarding the discussion
took place.4 Third, it was discovered that discovery materials, including a
possible recording related to interviews conducted by Master Trooper Dominic
Caimona (“Master Trooper Caimona”) and Corporal Randolph Guy, were not
provided to defense counsel. See N.T., 4/18/17, at 189-91 (wherein Michelle
testified regarding interviews conducted by the officers, and a subsequent
____________________________________________
2 See 18 Pa.C.S.A. § 3502.
3 During the first trial, a police officer improperly had testified regarding facts
from which it could be inferred that Book had a criminal record.
4 The trial court requested that the prosecutor provide additional foundation
to establish that the conversation was not privileged, i.e., that a third person
was present during the conversation. Id. at 58. The prosecutor was unable
to provide the necessary foundation. Id. at 58-59.
-2-
J-S18020-18
sidebar discussion regarding the possibility of a Brady5 violation). This came
to light during the testimony of Master Trooper Caimona, who had been called
as a witness by Book. Following the third event, the trial court, sua sponte,
declared a mistrial, providing the following rationale for its decision:
[N]umber one, we have the inadvertent[,] but certainly
prejudicial[,] blurt out by [] Arnold concerning the fact that [Book]
was in prison. Then we have Michelle[’s] [] testimony in violation
of the spousal privilege[,] and then we have this issue[,] which[,]
I think[,] is cumulatively going to make me declare a mistrial at
this point.
Id. at 226-27.
Book subsequently filed the instant Motion to Dismiss With Prejudice
seeking to bar a third trial. In support, Book claimed that prosecutorial
misconduct caused the prior mistrials, and consequently, a retrial would
violate his constitutional protection against double jeopardy. Motion to
Dismiss With Prejudice, 6/6/17, at 1; Brief in Support of Motion, 6/6/17, at 3
(unnumbered). In an Opinion and Order entered on July 20, 2017, the trial
court denied Book’s Motion to Dismiss With Prejudice. Thereafter, Book filed
the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Book presents the following claims for our review:
____________________________________________
5 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the
prosecution must disclose evidence favorable to the accused that is material
either to guilt or to punishment).
-3-
J-S18020-18
A. Whether the [trial] [c]ourt committed an error of law and/or
abuse of discretion in denying [Book’s] “Motion to Dismiss With
Prejudice”?
B. Whether the [p]rosecutor and/or other agents of the
Commonwealth engaged in prosecutorial
misconduct/overreach in the instant case[,] aimed at either
forcing [Book] to request a mistrial and/or deny [Book] a fair
trial?
C. Whether the conduct of the agents of the Commonwealth,
namely members of the [Pennsylvania] State Police, should be
imputed to the Commonwealth as misconduct barring retrial of
[Book]?
D. Whether the overreach/prosecutorial misconduct by the
Commonwealth/its agents prohibits retrial of [Book] via Pa.
Const., art. I, § 10 and U.S. Const., amend. V.[?]
Brief for Appellant at 9 (emphasis omitted, issues renumbered for clarity).
In the Argument section of his brief, Book reduces his claims to the
following three issues: (1) whether prosecutorial misconduct, as defined
under Commonwealth v. Smith, 615 A.2d 321 (Pa. 1980), occurred in the
instant case, thereby creating a double jeopardy prohibition of retrial, see
Brief for Appellant at 19; (2) whether the weight of the evidence in this case
indicates that the Commonwealth actors engaged in the prosecutorial
overreach proscribed under the Smith test and, therefore, the double
jeopardy prohibition of retrial is triggered, see id. at 39; and (3) whether the
trial court should impute prosecutorial misconduct on the part of Pennsylvania
State Police personnel to the prosecutor for purposes of double jeopardy
analysis, see id. at 61.
-4-
J-S18020-18
In assessing a double jeopardy claim,6 we are guided by the following:
The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution[,] and Article 1, § 10 of the
Pennsylvania Constitution[,] protect a defendant from repeated
criminal prosecutions for the same offense. Ordinarily, the law
permits retrial when the defendant successfully moves for mistrial.
If, however, the prosecution engages in certain forms of
intentional misconduct, the Double Jeopardy Clause bars retrial.
Article I, § 10, which our Supreme Court has construed more
broadly than its federal counterpart, bars retrial not only when
prosecutorial misconduct is intended to provoke the defendant
into moving for a mistrial, but also when the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant
to the point of the denial of a fair trial. An error by a prosecutor
does not deprive the defendant of a fair trial. However, where the
prosecutor’s conduct changes from mere error to intentionally
subverting the court process, then a fair trial is denied.
Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. 2015)
(quotation marks, brackets, and citations omitted).
Thus, whether a dismissal is warranted turns on whether the
Commonwealth intended to deprive the defendant of a fair trial.
Commonwealth v. Adams, 177 A.3d 359, 372 (Pa. Super. 2017).
By and large, most forms of undue prejudice caused by
inadvertent prosecutorial error or misconduct can be remedied in
individual cases by retrial. Intentional prosecutorial misconduct,
on the other hand, raises systematic concerns beyond a specific
individual’s right to a fair trial that are left unaddressed by retrial.
As this Court has often repeated, a fair trial is not simply a lofty
goal, it is a constitutional mandate, … and where that
____________________________________________
6 Book does not challenge the trial court’s sua sponte declaration of a mistrial.
Rather, Book challenges the denial of his Motion to Dismiss With Prejudice,
based upon a claim of prosecutorial misconduct. “Double jeopardy, as it
relates to prosecutorial misconduct, will attach where the prosecutorial
misconduct is calculated to trigger a mistrial.” Commonwealth v. Diehl,
615 A.2d 690, 693 (Pa. 1992).
-5-
J-S18020-18
constitutional mandate is ignored by the Commonwealth, we
cannot simply turn a blind eye and give the Commonwealth
another opportunity.
Id. (citations and internal quotation marks omitted). However,
the sanction of dismissal of criminal charges should be utilized
only in the most blatant cases. Given the public policy goal of
protecting the public from criminal conduct, a trial court should
consider dismissal of charges where the actions of the
Commonwealth are egregious and where demonstrable prejudice
will be suffered by the defendant if the charges are not dismissed.
Id. (citations omitted).
In his first issue, Book argues that, where manifest necessity is the
result of prosecutorial misconduct, the “Smith test” should be applied, and
retrial should be barred. Brief for Appellant at 19. Book asserts that the
prosecutorial overreach in this case is similar to the misconduct that occurred
in Smith. Id. at 25. According to Book, the Commonwealth’s case was not
proceeding as planned, and a representative from the Pennsylvania State
Police, seated at the prosecutor’s table, was aware of this. Id. Book posits
that this created a motive for the Pennsylvania State Police and/or the
prosecutor to intentionally inject error into the case, to force Book to choose
between opting for a mistrial or obtaining a verdict. Id. According to Book,
the mistrial was declared during the testimony of Master Trooper Caimona,
who had over two hours to prepare for his “eventually-fatal testimony[,]
during which he was, by all accounts, in almost constant contact with the
officers [and] well aware of the issues which had arisen during the rest of the
trial.” Id. at 26. Book asserts that the purpose of Master Trooper Caimona’s
-6-
J-S18020-18
testimony was to create the type of error that would meet the “Smith test.”
Id.
In his second issue, Book argues that the “weight of the evidence”
indicates that the “Commonwealth actors engaged in the prosecutorial
‘overreach’ proscribed by the Smith Rule,” thereby triggering Book’s double
jeopardy protections. Id. at 39 (internal quotation marks and some
capitalization omitted). In support, Book directs our attention to
inconsistencies in the testimony of other witnesses, which, he claims,
established the motive for the Commonwealth to inject error into the case.
See id. at 26-45. Book contends that it would be “ludicrous” to presume that
the prosecutor did not make known, to the police witnesses, the negative
implications of the “egregiously-lacking investigation,” and the “fatal nature”
of exposing the shortfalls, inconsistencies, “and outright lies” to the jury. Id.
at 39-40. Book contends that the Pennsylvania State Police witnesses and the
prosecutor then acted upon their “perceived need” to inject error into the case.
Id. Book asserts that fatal errors in both trials “have been the direct result of
a concerted effort by [Pennsylvania State Police] personnel, and/or the
[p]rosecutor, which mirror, in both form and function, the alternative prongs
of the ‘Smith test’ ….” Id. at 46.
In its Opinion, the trial court set forth the appropriate law, addressed
Book’s first two challenges to the denial of his Motion to Dismiss With
Prejudice, and concluded that they lack merit. See Trial Court Opinion,
-7-
J-S18020-18
7/20/17, at 16-18. We agree with the sound reasoning of the trial court, as
set forth in its Opinion, and affirm on this basis as to Book’s claims, with the
following addendum.
As our Supreme Court announced in Smith, “the double jeopardy clause
of the Pennsylvania Constitution prohibits retrial of a defendant not only when
prosecutorial misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is intentionally
undertaken to prejudice the defendant to the point of the denial of a fair trial.”
Smith, 615 A.2d at 325.
An example of egregious prosecutorial misconduct which has been
deemed sufficient to warrant dismissal may be found in Smith.
In Smith, the Commonwealth deliberately withheld from a capital
defendant: (1) the existence of an agreement with its chief
witness pursuant to which he received lenient treatment at
sentencing on unrelated charges in exchange for his testimony,
and (2) material, exculpatory physical evidence that it had
discovered mid-trial. The physical evidence consisted of grains of
sand that were found between the toes of the murder victim at
her autopsy. The sand was consistent with Smith’s defense that
the crime had been committed in Cape May, New Jersey, by
others, and not by him in Pennsylvania, as the Commonwealth
had alleged. At trial, when a Pennsylvania state trooper testified
on cross-examination that granular particles which looked like
sand had been removed from the victim’s body, the
Commonwealth implied that [the trooper] had fabricated his
testimony and the trial prosecutor recommended to his superior
that he investigate the feasibility of prosecuting the state trooper
for perjury. While the trial was still in progress, the state police
discovered the adhesive “lifters” that had been used to remove
and retain the sand from the victim’s feet. The Commonwealth,
however, failed to disclose this evidence and, indeed, continued
to suppress the evidence for over two years while the case was on
direct appeal to this Court. In light of this deliberate, bad faith
failure to disclose potentially exculpatory evidence, this Court
discharged Smith under the double jeopardy clause of the
-8-
J-S18020-18
Pennsylvania Constitution, opining that “it would be hard to
imagine more egregious prosecutorial tactics.” [Smith,] … 615
A.2d at 323.
On the other hand, a mere finding of willful prosecutorial
misconduct will not necessarily warrant dismissal of charges. For
example, in Commonwealth v. Moose, … 602 A.2d 1265 ([Pa.]
1992), [the Pennsylvania Supreme] Court found that the
prosecutor’s failure to inform defense counsel of a witness’s police
statement[,] which contained incriminating admissions allegedly
made by the defendant[,] amounted to a “willful violation of Rule
305.” Id. at … 1274. The [Supreme] Court held that “the district
attorney’s conduct raised significant ethical concerns” and
referred the matter to the Disciplinary Board for its consideration.
Id. … at 1274 n.8 & 1276 n.12. Nonetheless, the [Supreme] Court
did not dismiss the charges against Moose, but rather remanded
the matter for a new trial. Id. … at 1276.
Commonwealth v. Burke, 781 A.2d 1136, 1144-45 (Pa. 2001).
In the instant case, the prosecutor’s conduct does not approach that of
the deliberate, bad faith, prosecutorial misconduct that warranted the
dismissal in Smith. Further, the prosecutor’s conduct does not even approach
the conduct of the prosecutor in Moose. There is no evidence here of
deliberate overreaching by the Commonwealth or its witnesses. Although
Book offers speculation regarding the motives of the Commonwealth’s
witnesses, there is no evidence supporting his assertions. Simply put, the
errors in this case in no way approach the egregious and intentional nature of
the conduct addressed in Smith. Accordingly, we cannot grant Book relief on
his first two issues.
In his third issue, Book claims that the conduct and motives of the
Pennsylvania State Police witnesses should be imputed to the prosecutor, for
-9-
J-S18020-18
the purpose of applying the Smith test. Brief for Appellant at 61. Book
contends that the prosecutor should “feel adverse effects from the intentional
acts of her fellow Commonwealth Agents in the prosecution of [Book] in now[]
two (2) trials.” Id. at 65.
In Adams, this Court recognized the important role that police have in
disclosing potentially exculpatory material. Adams, 177 A.3d at 373.
However, our Court concluded that “there may be no double-jeopardy
dismissal if [police] misconduct is unintentional[,] or if it does not lead to
intentional misconduct of the prosecutor.” Id.
Here, the trial court found no evidence that the Pennsylvania State
Police witnesses intentionally acted to provoke a mistrial. Trial Court Opinion,
7/20/17, at 17. Further, the trial court found no evidence that would support
a finding that Master Trooper Caimona purposefully injected error into the
proceedings, based upon an awareness that the Commonwealth’s case was
not proceeding “as planned.” Id. Finally, as observed by the trial court,
Master Trooper Caimona was called upon to testify by Book, and not the
prosecutor. Id.
Because the trial court found that there was no intentional misconduct
or intent to deprive Book of a fair trial, and because those findings are
supported by the record, we affirm the trial court’s conclusion that Book is not
entitled to have the charges against him dismissed on double jeopardy
- 10 -
J-S18020-18
grounds. We therefore affirm the Order of the trial court, which denied Book’s
Motion to Dismiss With Prejudice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
- 11 -
Circulated 05/18/2018 02:11 PM
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SHAWN MICHAEL BOOK
For the Commonwealth: Patricia J. McLean, Esq., First Assistant District Attorney
For the Defendant: Joel L. Hills, Esq.
Judge William R. Shaffer July 19, 2017
MEMORANDUM OPINION
The Defendant seeks to bar a retrial after the Court declared a mistrial during the second
day of a jury trial in the above-captioned cases. The trial was the second jury trial in these cases
to conclude in a mistrial. Per the argument of defense counsel, the Defendant seeks to impute
actions of the police to the Attorney for the Commonwealth. Such actions by the police, the
Defense asserts, were designed either to provoke the Defendant to move for a mistrial or
amounted to overreaching such that retrial should be prohibited. The first mistrial was granted at
the request of the Defendant after a police officer testified to facts from which it could have been
inferred that the Defendant had a criminal record. The second trial ended when the Court
declared a mistrial based on the cumulative effects of three discrete incidences that took place
during the trial. We will set forth here the testimony and argument surrounding each incident.
The first incident related to testimony by Toni Arnold given during her redirect
examination by First Assistant District Attorney McLean:
Q: All right. You mentioned several times on cross-examination that you
have been cousins with the [D]efendant your whole life?
A: Yes.
Q: Did your families socialize, do things together at all?
1
A: Yes.
Q: How frequently?
A: Holidays. Any evening, he was at my dad's house all the time. When
Shawn was out of prison he would be there, sometimes, or be fishing with
my dad.
MR. HILLS: Your Honor, I ask for a sidebar.
THE COURT: Sure.
(Sidebar conference)
MR. HILLS: Your Honor, and the nature of my objection is I'd be
requesting a mistrial. The witness based on [Ms.] McLean's questioning
just blurted out on the record that when Shawn was out of prison. So
people have been in prison, and that implicates his criminal record, and the
same reason you granted a mistrial the last time.
4/17/2017 N.T., 226-27. Following the time it was requested, the Court denied the Defendant's
request for a mistrial. Id. at 227-29. Counsel for the Defendant renewed his request for a mistrial
at the close of the Commonwealth's case-in-chief. 4/18/2017 N.T., 187-88.
The second incident involved the testimony of Michelle Book relating to communications
between her and the Defendant, her husband. By Order of Court dated October 18, 2016, the
Court granted the Defendant's Motion in Limine to Exclude Testimony-Marital Privilege, and
found inadmissible confidential marital communications between the Defendant and Ms. Book.
The following exchange took place during the direct examination of Ms. Book by First Assistant
District Attorney McLean:
Q: Did you meet up with them at any point?
A: I did.
Q: About where?
A: Where they went where the road "Y'd" there was a stop sign further down
2
maybe close to a mile, I would estimate, and they made a left-hand tum.
They pulled over further down the road. After they made the left-hand
tum that's where I met up with them at.
Q: Did you measure that mileage?
A: I did not.
Q: When you met up with them, what was Shawn's demeanor at that time?
A: He was injured. He was, hard to breathe. He was anxious and angry.
Upset. Scared.
Q: And did you, well, and what happened then? You met up with them, he's
injured, what happened?
A: I asked what happened, and Shawn told me that when he went into the
home he had opened a door and there was a gentleman in there and that
once he saw the gentleman he had to try to hurry up and get out of the
house and he fell off of a balcony or a deck.
MR. HILLS: Your Honor, may I have a sidebar, please.
(Sidebar conference)
MR. HILLS: If you remember correctly, I made a motion to
suppress all of the confidential communications and
I believe that's what she's testifying now about, you
know, marital communication between her and
Shawn, and I believe that you granted my motion,
that that shouldn't be introduced.
MS. MCCLEAN: At the time he made that motion that all
communicating between husband and wife is
confidential this clearly is not confidential. Toni
Arnold was there. She's part of the co-conspiracy.
There's a third person there. There is nothing
confidential about this at all.
MR. HILLS: I don't believe that was made clear, Your Honor.
THE COURT: What wasn't made clear?
MR. HILLS: That these communications weren't made between
her and Shawn alone and Toni was there. She
simply said what was recounted to her by Shawn.
3
There was no foundation laid as to who else may or
may not have been there.
THE COURT: I don't recall that that was established, [Ms.]
McLean, that there was a third person present, so.
MS.MCLEAN: All right.
THE COURT: Maybe go back and revisit that issue.
(End of sidebar conference)
Q: [Ms.] Book, when you, and when you met up with Toni and Shawn, do
you guys stay together for a little while?
A: No.
Q: What happened?
A: Shawn got into the Kia that I was driving.
Q: And was it just the two of you in that vehicle then?
A: It was.
Q: Can you describe his demeanor without telling me what he said?
A: Anxious. Irritated. Scared. Angry. Hurt.
Q: And were those things that you observed?
A: Yes, Ma' am.
4118/2017 N .T ., 56-59. The testimony of Ms. Book concerning the communications made by the
Defendant to her while the two were alone should not have been admitted pursuant to the
October 18, 2016 Order of Court. Counsel for the Defendant properly objected to the testimony.
The third incident concerned discovery materials requested by the Defendant and which,
it appeared at the time of trial, had not been provided. The materials concerned the
memorialization or recordings of one or more interviews conducted by Master Trooper Dominic
4
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• •. ) I _.\
Caimona and Corporal Randolph Guy. The following testimony was given by Michelle Book on
re-cross examination by Attorney Hills:
Q: Two more questions. I'm sorry to belabor the point. The fact of the
matter is there's absolutely no record of this interview between you and
the police on seven ten or Toni and the police on seven ten. Now, at least
that I know of, I have been provided by the Commonwealth so I'm going
to ask you were you notified that you were going to be videotaped or
audio recorded when you spoke to Troopers Guy and Caimona on the
tenth so you say after the kids were detained by CYS?
A: Yes, I believe I was audio recorded.
Q: Were you advised of your rights?
A: Yes.
Q: As a criminal defendant on the tenth?
A: Yes.
MR. HILLS: Your Honor, I'd like a sidebar, please, ifl could?
THE COURT: Sure.
(Sidebar conference)
MR. HILLS: The reason I asked for sidebar is we just had a
witness testify that she was audio recorded and read
her right on seven ten, incident to the CYS
investigation, Your Honor.
MR. HILLS: The fact of the matter is, Your Honor, I asked and
made plenary request for all such interviews and
recordings of the same from the Commonwealth,
and I received no copies of any interviews on seven
ten from either Toni Arnold or Michelle Book.
MS. MCLEAN: He didn't because I don't have them. Trooper
Caimona did not do a very good investigation in
New Castle. I don't have them. I don't know that
they exist. When I asked, when I talked with
Michelle herself, I was under the impression only
5
the July eleven when they took them around that's
the only recorded interview I have. I don't have it.
I was never given one.
MR. Hills: Honestly, Your Honor, I don't mean [Ms.] McLean
is not telling the truth, but the fact of the matter is,
Your Honor, I mean, I'm not trying to be a wiseacre
here, I think we need a stipulation Officer Caimona
didn't do a very good investigation.
MS.MCLEAN: That's not proper at all, Your Honor.
MR. HILLS: We are going to have to have a stipulation he didn't
tender certain evidence he had in his possession.
THE COURT: Maybe we need to develop the record as to when
the state police interviewed this witness. I don't
know. All I have heard is July eleventh so far.
MR. HILLS: She said the tenth, Your Honor.
THE COURT: I understand that's what she said, and your video or
audio CD you pulled out yesterday is from seven
eleven fifteen.
MR. HILL: Seven thirteen that was Toni Arnold. The only
audio recording of [Ms.] Book I have is seven
eleven.
THE COURT: Well, I think it's maybe a little premature to say
there's a Brady violation here since it's unclear -
MR. HILLS: It's on the record, I'm not accusing [Ms.] McLean
of not handing anything over, I just noticed holes
like this throughout. Toni alluded to the same that
she was interviewed again.
THE COURT: If you want to subpoena Trooper Caimona, I think
that's certainly within your right.
MR. HILLS: I think Officer Guy-okay. Can I have [ additional]
time, I didn't realize that that was going to be
needed, Your Honor, to subpoena him, because she
had them on her list of witnesses. I know Officer
Guy is going to be here. I don't know if Officer
Guy was in the alleged interview of seven ten.
6
THE COURT: Maybe you can ask her that, this witness.
(End of sidebar conference)
BY MR. HILLS:
Q: When you were interviewed on the tenth, the day the kids were taken by
CYS, okay?
A: Yes.
Q: And you were interviewed by I assume Officer Caimona and Guy, is that
correct?
A: No, sir. It was Trooper Caimona.
Q: Just Caimona?
A: Correct.
4/18/2017 N.T., 107-11.
The following exchange took place at sidebar after the Commonwealth rested:
THE COURT: Any other testimony you're going to get into today from
any other witnesses?
MR. HILLS: I don't believe today, Your Honor, we discussed my having
the right to subpoena Trooper Caimona with regard to the
alleged testimony that occurred on seven ten.
MS. MCLEAN: I suggest perhaps - if Randy Guy is here, if he can at least
make a phone call to see if, in fact, if it was recorded. That
might-
MR. HILLS: I'd like to have Trooper Caimona testify as to what's going
on.
MR. HILLS: Obviously, we have a discovery issue, and I think it's not
attributable to [Ms.] McLean. I would be remiss and a
disservice to my client by not asking all questions -
THE COURT: I agree with you that needs to be explored.
7
.. ,,• .....
· ·j
MS. MCLEAN: Can I see if I can make contact?
THE COURT: I'd like to figure out how long it's going to take to finish up
the trial. Are you going to call anybody else?
MR. HILLS: I have no objection to Officer Caimona appearing by
phone.
THE COURT: Well, I would.
MS.MCLEAN: I have no problem if we take a few minute break and I
think Trooper Guy is still here, see ifhe can contact him,
see if he can get him here.
4/18/2017 N.T., 189-91.
Once Trooper Caimona was contacted, and after he traveled to the New Castle State
Police Barracks to retrieve his case materials, he appeared before the Court and testified in part
as follows on direct examination by Attorney Hills:
Q: Basically, the reason that you have been called as a witness here today the
last minute is during [Ms.] Book's testimony she made reference to the
fact or her contention that you interviewed both her and [Ms.] Arnold on
the tenth of July, the day before the ride around, ride along interview that
you conducted with [Ms.] Book. Is that the case?
A: Yes. I [interviewed] both of them on that day.
Q: Okay. Was also her contention that those interviews, that prior to those
interviews you informed her at least that she was audio recorded?
A: [Ms.] Book?
Q: Yes?
A: Okay.
Q: On the tenth? And that you read her her Miranda rights?
A: Correct.
Q: You did?
8
A: I read her her rights and advised her that I was going to record our
interview.
Q: On the tenth?
A: Yes.
Q: Okay. Before the ride along?
A: Yes, the day before. That would have been a Friday.
Q: Okay.
A: I don't know the exact date, but it was Friday. Saturday was the ride
along.
Q: Do you remember correctly that would have been the day that, and I don't
know if you would remember the circumstances surrounding it, but that
would be the day [Ms.] Book's children were detained by CYS, do you
remember that?
A: Yes, I think that was a Friday. I can give you an exact date if you give me
a minute.
Q: Yes, sir.
A: Okay, the eleventh was the day I did the ride along with Michelle along
with Trooper Guy. So it would have been the tenth.
Q: So, there was an interview on the tenth, and there was an audio recording
made of that?
A: The audio recording on that date I was going to, I was going to audio
record it, but once I started speaking to her I shut the recording off, to gain
her confidence and just to speak to her one on one.
Q: But am I to take it that she was Mirandized?
A: Yes.
Q: And that a portion of it at least was audio recorded?
A: No. After I, after I read her her rights we started speaking, told her that I
was going to record our interview, and then decided not to do the audio
recording, and we just spoke.
9
Q: Okay. Correct me if I'm wrong, but I heard your testimony prior to your
last statement was that somewhere along the line you decided to stop
audio recording?
A: Yes. I never recorded a statement from Michelle Book.
Q: Well, you stated you recorded her Mirandization, is that correct?
A: No, I just read her her rights.
Q: Did you take any notes as a result of this interview?
A: I believe I did. I'd have to check my report here. I have several reports so
be patient with me. I'm sorry, be patient with me. I have a lot ofreports
to go through. Just have to find the report that I use as the master number,
because if I have, if I'm not mistaken six different burglaries, and I just
did one number as a master number and record it under.
Q: Got you. Take as much time as you need.
A: I don't have the actual rights warning waiver attached to my report so it's
either attached to the recording that's in evidence.
Q: Excuse me, I'm sorry, I thought you said there was no recording?
A: There was a recording from the ride along. Can I open this?
MS. MCLEAN: You're his witness.
MR. HILLS: I don't know what it is.
MS. MCLEAN: I don't, either.
MR. HILLS: What is it?
A: This is a recording for Toni Arnold's interview.
Q: On the tenth?
A: This would be on, no, this was on the twentieth.
Q: There was an Arnold interview on the twentieth?
A: Yes. On the tenth both Arnold and Michelle Book were brought in.
interviewed both of them. The eleventh is when we did the ride along.
Huh. The eleventh is when I did the ride along with Trooper Guy. After
10
we ascertained more information and for evidence and recovered
properties from burglaries from by investigations. We brought [Ms.]
Arnold back in and interviewed her again.
Q: On the thirteenth?
A: On the twentieth.
MR. HILLS: Could I have a sidebar, Your Honor?
(Sidebar conference)
MR. HILLS: Your Honor, you can anticipate what I'm going to
say. The only two recordings that I was given was
ride along interview with Michelle Book on seven
eleven and the recorded interview of Toni Arnold
on seven thirteen. Now we have references to a
Mirandized interview that was initially recorded but
then decided not to be recorded on the tenth with
both of them, and now there's reference to another
recorded interview of Toni Arnold on the twentieth.
THE COURT: I assume we are talking about the twentieth of -
MR. HILLS: July.
THE COURT: That wasn't clearly established.
MR. HILLS: Sorry. But the only interviews that I was given as
parts of my discovery package are of seven three
interview of Toni Arnold and seven thirteen
interview of Toni Arnold and seven eleven ride
along interview with Michelle [Book].
THE COURT: So.
MR. HILLS: And if these things contributed to the investigation
for these two burglaries my request was a plenary
one for all statements, any recordings, any
recounting, any notes having to do with statements
for witnesses.
THE COURT: Okay.
11
MR. HILLS: And again I'd like to make it clear I'm not in any
way trying to even intimate [Ms. McLean] had,
anything, I don't think anybody knew.
THE COURT: And you're asking for what?
MR. HILLS: Well, I mean, you made reference to a Kennedy
violation, Your Honor, I believe right? Am I
quoting the wrong case?
THE COURT: Aren't you entitled to exculpatory evidence? In the
possession of the Commonwealth?
MR. HILLS: I asked for all statements of witnesses and any
recordings.
THE COURT: Any guidance for the Court you would want to give
me?
MS.MCLEAN: First of all, I don't know that he has testified
mistakenly, that he doesn't mean the thirteenth as
opposed to the twentieth. I don't know of any
interview on the twentieth even with my
conversations with [Ms.] Arnold so I don't know
that that's an accurate statement for one. Number
two, I think perhaps at the very least perhaps
counsel should have spoken to the witness and
gotten this information before we are in the middle
of a jury and I understand it's last minute, but even
when he got here, I mean, we don't know what that
recording is, we don't know there's anything
exculpatory, I don't know anything about it. I still
don't know it's from the twentieth and not the
thirteenth. I don't know. The first I have heard
about it.
MR. HILLS: The very fact [Ms.] McLean doesn't know speaks
for itself and I don't believe it my responsibility to
contact state's witnesses to see if there's any
interviews that the state police officer hasn't
disclosed to the Commonwealth as he is asked to
do. There's no way for me to question a witness
about something I have absolutely no idea let alone
something the Commonwealth has absolutely no
idea about.
12
MS. MCLEAN: Well, part of it cannot be forgotten that these two
cases in Butler are part of a much larger
investigation, that involved many other cases in
Lawrence County, and that's where a large part of
the investigation took place. So, if there are things
that the police have in their possession for the
Lawrence County investigations that in no way
apply to the Butler County case, so there are going
to be things that the police have that they would not
give me because they don't relate to this case. I
just, I don't really intelligently respond to his
comment about seven twenty because I don't know
that that is true.
THE COURT: Here's what we do know is that there was
interviews on seven ten.
MS. MCLEAN: Correct, but we don't know what those interviews
were about, either.
MR.HILLS: We note both of them were Mirandized, Your
Honor.
MS. MCLEAN: Um hum. This investigation started, Your Honor,
with totally unrelated incidents. It wasn't even
related to burglaries. That's how the whole
investigation started. So I don't know if those
interviews on the tenth were about that first
incident. That has nothing to do with Butler County.
I don't know.
MR. HILLS: I believe [Ms.] Book's testimony was quite clear as .
to what was discussed on seven ten, Your Honor.
THE COURT: Well, here's what we do know is that Mr. Book was
arrested on the thirteenth. So I'm concerned about
investigations which occurred prior to the date of
this arrest, and we still haven't established whether
there are reports of the interviews of seven ten. So,
ifthere are reports, and you were given those
reports and allowed to look at them to see whether
there is anything in there that is exculpatory or that
would lead you to want to have some type of
suppression hearing, those are all things it's very
difficult to do in mid trial.
13
MR. HILLS: I agree.
THE COURT: So, I'm going to pull the plug on the trial.
MR. HILLS: Thank you, Your Honor.
THE COURT: Anything else you wanted to put on the record
before I do so, [Ms.] McLean? I think let me state
my reasons just in case, number one, we have the
inadvertent but certainly prejudicial blurt out by
[Ms.] Arnold concerning the fact that the
[D]efendant was in prison. Then we have Michelle
Book's testimony in violation of the spousal
privilege and then we have this issue which I think
is cumulatively going to make me declare a mistrial
at this point.
MS. MCLEAN: May I respond to just one issue, that would be the
marital privilege. I never got to ask about those
conversations.
THE COURT: Well, she testified about them.
MS.MCLEAN: She testified as to her observations.
THE COURT: She talked about how he told her that there was a
guy in the room when he went in is what I recall her
saymg.
MS.MCLEAN: There was no objection to that testimony, Your
Honor. The testimony there was no objection to
that.
THE COURT: Well, if there's no objection it's waived. There's no
objection. He made it as fast as he could, seems to
me.
MS. MCLEAN: I asked my question was about when I was holding
up the Studebaker house, I wasn't even talking
about the Roher house when that happened. There
was no objection at that time.
MR. HILLS: I objected about the conversation that occurred.
THE COURT: In the car.
14
MR. HILLS: The conversation on the way back from there and
that's what I objected to.
MS.MCLEAN: Which is way passed (sic) that.
MR. HILLS: She said the guy found them in the house in Roher,
that's the room.
MS.MCLEAN: Right.
MR. HILLS: That's when I objected.
MS.MCLEAN: All right. I'm sorry. I'm sorry.
THE COURT: Whatever it is the record will show whether our
memories are faulty at this point or not.
4/18/2017 N.T., 217-28.
The following constitutes the relevant standards by which the Defendant's Motion to
Dismiss with Prejudice should be judged:
The Double Jeopardy Clauses of the Fifth Amendment to the United States
Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a
defendant from repeated criminal prosecutions for the same offense.
[Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super. Ct. 2013), appeal
denied, 84 A.3d 1063 (Pa. 2014).] Ordinarily, the law permits retrial when the
defendant successfully moves for mistrial. If, however, the prosecution engages in
certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial.
Id. at 884. Article I, § 10, which our Supreme Court has construed more broadly
than its federal counterpart, bars retrial "not only when prosecutorial misconduct
is intended to provoke the defendant into moving for a mistrial, but also when the
conduct of the prosecutor is intentionally undertaken to prejudice the defendant to
the point of the denial of a fair trial." Commonwealth v. Smith, 532 Pa. 177, 615
A.2d 321, 325 (1992). An error by a prosecutor does not deprive the defendant of
a fair trial. Kearns, 70 A.3d at 884. "However, where the prosecutor's conduct
changes from mere error to intentionally subverting the court process, then a fair
trial is denied." Id. (quoting Commonwealth v. Chmiel, 777 A.2d 459, 464
(Pa.Super.2001), appeal denied, 567 Pa. 736, 788 A.2d 372 (2001), cert. denied,
535 U.S. 1059, 122 S.Ct. 1921, 152 L.Ed.2d 829 (2002)).
Thus under Pennsylvania jurisprudence, it is the intentionality behind the
Commonwealth's subversion of the court process, not the prejudice caused
to the defendant, that is inadequately remedied by appellate review or
retrial. By and large, most forms of undue prejudice caused by inadvertent
15
prosecutorial error or misconduct can be remedied in individual cases by
retrial. Intentional prosecutorial misconduct, on the other hand, raises
systematic concerns beyond a specific individual's right to a fair trial that
are left unaddressed by retrial. As this Court has often repeated, ' [a] fair
trial is not simply a lofty goal, it is a constitutional mandate, ... [and]
[ w ]here that constitutional mandate is ignored by the Commonwealth, we
cannot simply tum a blind eye and give the Commonwealth another
opportunity.'
Id. at 884-85 (quoting Chmiel, 777 A.2d at 464).
Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. Super. Ct. 2015), appeal denied, 126 A.3d
1282 (Pa. 2016).
Underpinning the Defendant's arguments, which were set forth both in his Brief in
Support of Defendant's "Motion to Dismiss with Prejudice" and before the Court at the time
scheduled for argument, is the notion that the "weakness of the Commonwealth's case was so
evident that the pursuant manifest en-ors therein were likely the result of conscious and concerted
effort by Commonwealth Agents, and/or the Prosecutor, aimed at securing a retrial of the
Defendant in hopes of retrial being more conducive to an ultimate conviction of him."
Additionally, the Defendant asserts that the Commonwealth engaged in conduct that amounted to
coaching of at least one of its witnesses, Mustafa Tay-fur. No credible evidence was presented to
substantiate the Defendant's coaching claim, aside from the testimony set forth in the
Defendant's brief. Thus, in the absence of such evidence, we reject the notion as a basis upon
which to find prosecutorial misconduct or overreaching that would bar a retrial.
The above exchanges, concerning Toni Arnold and Michelle Book, do not evince
prosecutorial misconduct, much less an intention to provoke a mistrial or deprive the Defendant
of a fair trial. See, Graham l 09 A.3d at 737-38. With respect to Toni Arnold, Attorney Mel.can
inquired whether and how frequently her family socialized with the Defendant's family. She did
not directly or indirectly inquire whether the Defendant had been in prison. See Id. at 737. With
16
''. j
respect to the testimony of Michelle Book, Attorney McLean did not ask her to divulge
confidential communications. She asked about the Defendant's demeanor and "what happened"?
While it is conceivable the inquiries could have been crafted more carefully to avoid Ms. Book
revealing the communications of the Defendant, the questioning by no means amounted to
prosecutorial misconduct.
We are aware of no authority supporting the notion that the actions of the police, under
circumstances as benign as those here, warrant barring a retrial. With respect to those actions,
relating to the various July 2016 interviews, we are not persuaded by the Defendant's argument,
presented in his brief and at oral argument, that such action should be viewed as having been
undertaken in order to provoke a mistrial or to deprive the Defendant of a fair trial, We find
there is no evidence to support the notion that Master Trooper Caimona purposefully injected
error into the proceedings because he was aware that the Commonwealth's case was not
proceeding as planned. It is worth noting that Trooper Caimona was called upon to testify by the
Defendant.
Even if the above incidences, relating to the testimony of Ms. Book and Ms. Arnold, as
well as the testimony of Trooper Caimona, are viewed in toto, and are considered prosecutorial
misconduct, we find that there is insufficient evidence to demonstrate that such actions were
undertaken with the intention of provoking a mistrial. Likewise, the conduct falls far short of the
overreaching that would bar a retrial. In Smith, for example, retrial was barred based on the
deliberate and prolonged failure to disclose material exculpatory physical evidence during a
capital trial. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992). In Commonwealth v.
Martorano, retrial was barred where the "prosecutor acted in bad faith throughout the trial,
consistently making reference to evidence that the trial court had ruled inadmissible, continually
17
defying the trial court's rulings on objections," and repeatedly insisting that there was physical
evidence that the prosecutor knew did not exist. Commonwealth. v. Martorano, 741 A.2d 1221,
1223 (Pa. 1999). In Commonwealth v. Anderson, retrial was barred where a prosecutor engaged
in a pattern of pervasive misconduct that culminated in a meeting during which the prosecutor
coached the victim-witness, a pattern that demonstrated the prosecutor intentionally acted to
prejudice the defendant. Commonwealth v. Anderson, 38 A.3d 828 (Pa. Super. Ct. 2011). The
conduct of the Commonwealth during the Defendant's second trial does not approach the level
required properly to bar a retrial.
Accordingly, the Court enters the following:
18
IN THE COURT OF COMMON PLEAS
BUTLER COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA CRIMINAL DIVISION
vs. C.A. No. 1483 of 2015
C.A. No. 0630 of 2016
SHAWN MICHAEL BOOK
For the Commonwealth: Patricia J. McLean, Esq., First Assistant District Attorney
For the Defendant: Joel L. Hills, Esq.
ORDER OF COURT
AND NOW, this 19th day of July, 2017, following argument on the Defendant's Motion
to Dismiss with Prejudice, it is ordered that the motion is denied.
By the Court,
William R. Shaffer, Judge
? -·-�() ·-/ ·7 ..
/>7(, | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4390151/ | Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Daniel Gray, Appellant Appeal from the 5th District Court of
Bowie County, Texas (Tr. Ct. No.
No. 06-19-00020-CV v. 18C1613-005). Opinion delivered by Chief
Justice Morriss, Justice Burgess and Justice
TDCJ, Sharon Webb, Sgt. Duttine, Cpt. Stevens participating.
Doe, Property Officer Rust, and Warden
Parker, Appellees
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Daniel Gray, has adequately indicated his inability to pay
costs of appeal. Therefore, we waive payment of costs.
RENDERED APRIL 24, 2019
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4390152/ | Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Daniel Gray, Appellant Appeal from the 5th District Court of
Bowie County, Texas (Tr. Ct. No.
No. 06-19-00021-CV v. 18C1734-005). Opinion delivered by
Justice Stevens, Chief Justice Morriss and
TDCJ, Sharon Webb, Sgt. Duttine, Cpt. Justice Burgess participating.
Doe, Property Officer Rust, and Warden
Parker, Appellees
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Daniel Gray, has adequately indicated his inability to pay
costs of appeal. Therefore, we waive payment of costs.
RENDERED APRIL 24, 2019
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk | 01-03-2023 | 04-24-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142361/ | OFFICE OF THE ACTORNEY GENERAL OF TEXAS
AUSTIN
c | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129298/ | ;r OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
May 23,200l
The Honorable Jack M. Skeen, Jr. Opinion No. JC-0383
Smith County Criminal District Attorney
100 North Broadway, 400 Re: Whether, without violating article III,
Tyler, Texas 75702 section 53 of the Texas Constitution, a county
may pay group-health-insurance premiums for
retirees for whom, at the time they retired, the
county did not provide such benefits, and related
questions (RQ-0334-JC)
Dear Mr. Skeen:
Under article III, section 53 of the Texas Constitution, a retired county employee generally
may not receive a new or increased benefit from the county if the county did not provide it when the
employee retired. See TEX. CONST. art. III, 5 53; Tex. Att’y Gen. Op. No. JC-0297 (2000) at 4.
Since October 1,1996, Smith County (the “county”) has paid group-health-insurance premiums for
its retired employees, including nine (the “nine retirees”) who retired when the county provided that
a retiree could continue to participate, at the retiree’s own expense, in the county’s health-insurance
plan for a period consistent with federal law.’ See Consolidated Omnibus Budget Reconciliation Act
of 1985, Pub. L. No. 99-272, 100 Stat. 82 (1986) (continued health-insurance coverage provisions
are codified at 29 U.S.C. 80 1161-69 and 42 U.K. $5 300bb-1 to -8 (1994 & Supp. IV 1998))
[hereinafter COBRA]. We assume that the nine retirees have provided no additional consideration
in return for the county’s payment of health-insurance premiums. You ask whether, under article
III, section 53 of the Texas Constitution, the county may pay the nine retirees’ health-insurance
premiums. See Request Letter, sup-a note 1, at 2; TEX. CONST. art. III, 4 53. Because the county
did not provide for such a benefit when the nine retired, it may not pay the premiums.
You ask two other related questions. You question whether the county must ask the nine
retirees to reimburse the county for the premiums it has paid since October 1, 1996. See Request
Letter, supra note 1, at 3. The county may, but it need not. You ask last whether the county may
invite the nine retirees to participate in the county’s group-health-insurance policy if the retirees pay
their own premiums. See id. We conclude that those who retired between January 1, 1994 and
October 1, 1996 may be entitled to participate in accordance with chapter 175 of the Local
‘See Letter from Honorable Jack M. Skeen, Jr., Smith County Criminal District Attorney, to Honorable
John Comyn, Texas Attorney General (Dec. 28,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Jack M. Skeen, Jr. - Page 2 (JC-0383)
Government Code. See TEX. LOC. GOV'T CODEANN. ch. 175 (Vernon 1999). Those who retired
before January 1,1994 may not participate beyond the period required by COBRA, however.
You provide these facts:
On September 9, 1996, the Smith County Commissioners
Court approved a policy to provide group health insurance coverage
for future retirees and to pay 100% of the premiums for these retirees.
The effective date of this policy was October 1, 1996. Prior to
October 1, 1996, Smith County retirees were offered continued . . .
coverage [under COBRA] at their own expense. As of
October 1, 1996, there were nine . . . county retirees on COBRA
paying their own premiums. The Commissioners Court opted
to include these 9 retirees in the new policy. Thus, the county
included these 9 retired individuals in its group health policy and
began paying the insurance premiums for these 9 retirees beginning
October 1, 1996. The county has continued paying 100% of these
premiums to [the] present.
Request Letter, supra note 1, at l-2. You further stipulate that, “[a]t the time these 9 individuals
retired, the [county] policies governing their retirement plan did not provide for the possibility of
the county including them in [the] group plan or paying any portion of their health insurance
premiums. Rather, [when] these 9 persons retired, the policy of the county was that retirees would
pay 100% of their premiums for continued COBRA coverage.” Id. at 3. The dates of retirement for
the nine range from August 1992 through July 1996. Telephone Conversation with Lee Porter,
Smith County Assistant District Attorney (Mar. 12,200l).
Under article III, section 53 of the Texas Constitution, a county generally may not increase
a former employee’s retirement benefits beyond those for which the county provided at the time of
retirement. Article III, section 53 expressly prohibits the legislature from authorizing a county to
grant “any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after
[a] service has been rendered, . . . , and performed in whole or in part.” TEX. CONST.art. III, 8 53.
Increasing retirement benefits is constitutionally permissible in two circumstances. First, a
county may increase a retiree’s benefits if the retiree provides additional consideration. See City of
Greenville v. Emerson, 740 S.W.2d 10, 13 (Tex. App.-Dallas 1987, no writ) (determining that
“contract” that requires city to pay “additional sums of money for services already rendered and
benefits already paid . . . for no additional consideration” contravenes article III, section 53); accord
Tex. Att’y Gen. Op. No. JC-0297 (2000) at 5. Second, a county may increase a retiree’s benefits if,
at the time of the retiree’s retirement, the county’s retirement policy or applicable federal or state law
“provided for the possibility of additional payments.” Tex. Att’y Gen. Op. No. JC-0297 (2000) at
5. For example, the board of trustees of a fire fighters’ retirement benefits plan may increase
retirement benefits for current retirees without violating article III, section 53 because the applicable
The Honorable Jack M. Skeen, Jr. - Page 3 (JC-0383)
statute explicitly permitted the board to change retirement benefits for those already receiving
monthly retirement benefits. See Tex. Att’y Gen. LO-97-l 13, at 4.
Neither circumstance appears present here. First, we assume that, to this point, the nine
retirees have provided no additional consideration for the county’s payment of health-insurance
premiums. Nothing in the information you have provided suggests that they have done so. See
generally Request Letter, supra note 1. Second, at the time of the nine retirees’ retirements, nothing
in the county policy or in applicable federal or state law provided for a possibility of increased
health-insurance benefits. At that time, county policy required retirees to pay 100% of their health-
insurance premiums for continued coverage under COBRA. See Request Letter, supra note 1, at 3.
Under COBRA, a retiree may continue, for eighteen to thirty-six months after the date of retirement,
health-insurance coverage through the former employer. See 29 U.S.C. $5 1161 - 1163; 42 U.S.C.
$8 300bb-1 through -3. But COBRA “does not require or authorize a county to pay any part of a
county retiree’s health insurance premiums.” Tex. Att’y Gen. Op. No. JC-0297 (2000) at 3.
Similarly, no state law that requires or authorizes the county to pay the nine retirees’ health-
insurance premiums provided for increased benefits. Article 3.5 l-2 of the Insurance Code, which
authorizes a county to procure group-health-insurance contracts covering retired county employees
and to pay all or any portion of the premiums for retirees, see TEX. INS.CODEANN. art. 3.51-2(a),
(b) (Vernon Supp. 2000); Tex. Att’y Gen. Op. No. JC-0297 (2000) at 2, does not authorize a county
to pay group-health-insurance premiums for a retiree if the payments constitute unconstitutional
retroactive compensation. See Tex. Att’y Gen. Op. No. JC-0297 (2000) at 2. Section 157.002 of
the Local Government Code “authorizes a commissioners court to provide various kinds of insurance
to retirees,” id., but the insurance must be provided “by rule” and “included in the person’s
employment contract.” TEX. Lot. GOV’T CODEANN. 8 157.002 (Vernon 1999). Because you
specify that the county did not provide for premium-paid health insurance for the nine retirees at the
time they retired, see Request Letter, supra note 1, at 3, section 157.002 does not apply. Last,
although chapter 175 of the Local Government Code, which entitles a person who is employed by
a county with a population of 75,000 or .more to, upon retirement, continue participating in the
county’s health-insurance program at the retiree’s expense, appears to apply to the county, it does
not authorize the county to pay retirees’ health-insurance premiums. See TEX. LOC. GOV’T CODE
ANN. $8 175.001, .002(a) (V emon 1999); 1 Bureau of the Census, U.S. Dep’t of Commerce, 1990
Census of Population, General Population Characteristics: Texas 4 (1992) (Smith County population
is 15 1,309) (174,706 according to 2000 census, available at http://www.census.gov/); see infra at
4-5 (discussing further chapter 175). But see TEX.LOC.GOV’T CODEANN. 8 9 175.006, .007 (Vernon
1999) (listing matters chapter 175 does not affect and exempting certain counties and municipalities
from chapter 175).
We therefore conclude that the county may not pay health-insurance premiums for the nine
retirees without violating article III, section 53 of the Texas Constitution. We do not understand the
nine retirees to have provided any additional consideration for the increased benefit. Additionally,
neither county policy, nor federal or state law require or provide for the possibility of the increased
benefits.
The Honorable Jack M. Skeen, Jr. - Page 4 (JC-0383)
You ask second whether the county must ask the nine retirees to reimburse the county for
premiums the county paid in contravention of article III, section 53 of the Texas Constitution. The
county may, but it is not required to do so.
A governmental entity, in the exercise of its discretion, may seek to recover a payment that
its agent has erroneously paid to a private party from public funds. See City of Taylor v. Hodges,
186 S.W.2d 61,63 (Tex. 1945); Tex. Att’y Gen. Op. No. JM-910 (1988) at 7. While the county may
seek reimbursement, we found no case law or attorney general opinion stating that the governmental
body must seek reimbursement. See United States v. Paddock, 178 F.2d 394’398-99 (5th Cir. 1949),
cert. denied, 370 U.S. 8 13 (1950) (discussing rule as articulated by several federal and state courts);
Hodges, 186 S.W.2d at 63; Cameron County v. Fox, 2 S.W.2d 433,436 (Tex. Comm’n App. 1928,
judgm’t adopted) (stating that amount wrongly paid “may be recovered in an action by the county”);
Gould v. City of El Paso, 440 S.W.2d 696, 699 (Tex. Civ. App.-El Paso 1969, writ ref d n.r.e.)
(noting exception to general rule “where payment was mistakenly made out of the public treasury”);
Nunn- Warren Publ’g Co. v. Hutchinson County, 45 S.W.2d 65 1, 653 (Tex. Civ. App.-Amarillo
1932, writ ref d) (“Although the payment to the defendant was made by the county voluntarily, such
payment was without lawful authority, and the action of the auditor, the commissioners[] court, and
the county in said transaction was illegal and void and the amount paid to and received by
the defendant is recoverable in this action.“) (citing Fox, 2 S.W.2d 433); Tex. Att’y Gen. Op. Nos.
JM-910 (1988) at 7, MW-93 (1979) at 2. Thus, a county may exercise reasonable discretion as to
whether to seek reimbursement in a particular case. See Tex. Att’y Gen. Op. No. JM-910 (1988) at
7. In making its decision, the county commissioners court might consider, for instance, “the amount
of funds to be reimbursed, the ease of collection, and the legal and other costs incident to collection.”
Id. (citing Tex. Att’y Gen. Op. No. MW-93 (1979) at 3). The county also should weigh the notion
that the commissioners court may have authorized unconstitutional payments from funds belonging
to the public. See Hodges, 186 S.W.2d at 63; Paddock, 178 F.2d at 398-99 (quoting City of TayZor
v. Hodges).
We address your remaining question: whether the county constitutionally may “continue to
include these 9 retirees under [the county’s] group insurance policy if the retirees pay all of the
premiums?” Request Letter, supra note 1, at 3. The answer to this question is complicated by the
fact that some of the nine retirees retired before chapter 175 of the Local Government Code became
effective, on January 1, 1994. Telephone Conversation with Lee Porter, Smith County Assistant
District Attorney (Mar. 12,200l); see also Act of May 28, 1993,73d Leg., R.S., ch. 663, 9 2(a),
1993 Tex. Gen. Laws 2460, 2462 (stating effective date of what is now chapter 175 to those
who retire from county employment “on or after January 1,1994”). For those who retired on or after
January 1,1994, when chapter 175 became effective, and before October 1, 1996, when the county
policy became effective, we apply chapter 175. But the county has no authority to invite those who
retired before January 1, 1994 to participate in the program.
We conclude that a person who retired on or after January 1,1994 but before October 1,1996
may participate in Smith County’s group-health-insurance program at the retiree’s expense, but only
in accordance with chapter 175 of the Local Government Code. Chapter 175 applies to a person who
The Honorable Jack M. Skeen, Jr. - Page 5 (JC-0383)
“retires from county employment in a county with a population of 75,000 or more” and who “is
entitled to receive retirement benefits from a county . . . retirement plan.” TEX. LOC. GOV’T CODE
ANN. 6 175.001 (Vernon 1999). Under section 175.002, a person to whom the chapter applies has
a limited right to purchase continued health benefits:
0a A person to whom this chapter applies is entitled to
purchase continued health benefits coverage for the person and the
person’s dependents as provided by this chapter unless the person is
eligible for group health benefits coverage through another employer.
The coverage shall be provided under the group health insurance plan
or group health coverage plan provided by or through the employing
county. . . to its employees.
@I To receive continued coverage under this chapter, the
person must inform the employing county . . . , not later than the day
on which the person retires from the county or municipality, that the
person elects to continue coverage.
0C Ifthe person elects to continue coverage for the person
and on any subsequent date elects to discontinue such coverage, the
person is no longer eligible for coverage under this chapter.
Id. 8 175.002(a) - (c). A county that is subject to chapter 175 has a duty to inform a retiring
employee of his or her right to continued health coverage:
Acounty.. . shall provide written notice to a person to whom
this chapter may apply of the person’s rights under this chapter not
later than the date the person retires from the county or municipality.
A county . . . may fulfill its requirements under this section by
placing the written notice required by this section in a personnel
manual or employee handbook that is available to all employees.
Id. 8 175.005.
Under chapter 175, a person who has retired from county employment since January 1,1994
is entitled to participate in the county’s group-health-insurance coverage if he or she informed the
county of his or her election to participate “not later than the day on which the person retire[d] from
the county.” Id. 8 175.002(b). Of course, the county had a duty to notify the retiring employee of
his or her entitlement in accordance with section 175.005. See id. § 175.005. We assume that none
of the persons who retired between January 1,1994 and October 1,1996 is eligible for group health-
benefits coverage through another employer. See id. 8 175.002(a). We also assume that neither of
the exemptions listed in section 175.007 apply to Smith County. See id. 5 175.007 (exempting
certain counties that provide health-benefits coverage through self-insured plan or plan authorized
The Honorable Jack M. Skeen, Jr. - Page 6 (Jc-0383)
under chapter 172, Local Government Code, and counties that provide coverage “substantially
similar to or better than the coverage” chapter 175 requires).
Those who retired before January 1,1994 may not participate in the county’s group-health-
insurance program, even at their own expense. As we have stated, the county did not provide for
paying these retirees’ health-insurance premiums under section 157.002 of the Local Government
Code at the time they retired. See TEX. LOC. GOV’T CODEANN. 8 157.002(a)(4) (Vernon 1999);
supra at 3 (determining that section 157.002 does not apply); see also Act of May 18, 1989, 71 st
Leg., R.S., ch. 872, $9 2,3,1989 Tex. Gen. Laws 3862,3863 (adopting section 157.002(a)(4), Local
Government Code, and noting effective date of June 14, 1989). Additionally, chapter 175 was not
yet in effect. Consequently, the county had no authority to permit retirees to participate in the
county’s group-health-insurance program beyond the period required by COBRA. See Act of May
28, 1993, 73d Leg., R.S., ch. 663, 8 2(a), 1993 Tex. Gen. Laws 2460, 2462 (setting effective date
of what is now chapter 175).
The Honorable Jack M. Skeen, Jr. - Page 7 (JC-0383)
SUMMARY
In light of article III, section 53 of the Texas Constitution, a
county may not pay group-health-insurance premiums for a retired
employee absent additional consideration from the retired employee,
if at the time he or she retired, the county did not provide for such
coverage nor for the possibility of such coverage. See TEX. CONST.
art. III, 4 53. The county may, but is not required to, seek
reimbursement from a retired employee for whom the county paid
premiums in violation of article III, section 53. With respect to a
person who retired on or after January 1, 1994, that person may be
entitled to participate in the county’s health-insurance program in
accordance with chapter 175. See TEX. LOC. GOV'T CODEANN. ch.
175 (Vernon 1999). But the county may not permit a person who
retired fi-om employment with the county before January 1, 1994 to
participate beyond the period required by federal law, even if the
retiree pays the premiums.
JO-HN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124955/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 15, 2016
The Honorable Dan Patrick Opinion No. KP-0109
Lieutenant Governor of Texas
Post Office Box 12068 Re: The constitutionality of a volunteer justice
Austin, Texas 78711-2068 court chaplaincy program and opening daily
judicial proceedings with prayer (RQ-0099-KP)
Ms. Seana Willing
Executive Director
State Commission on Judicial Conduct
Post Office Box 12265
Austin, Texas 78711-2265
Dear Governor Patrick and Ms. Willing:
You have each requested an attorney general opinion regarding the constitutionality of a
judge allowing a prayer at the beginning of courtroom proceeaings. 1 In addition, Governor Patrick
has requested an opinion on the constitutionality of a "volunteer-led Justice Court Chaplaincy
Program." Patrick Request at 2.
As background, the requests arise due to the practice of a sitting Justice of the Peace in
Montgomery County who has established a volunteer chaplain program, inviting "all religious
leaders of any faith in [his county] to participate." Patrick Request at 3. Governor Patrick explains
that initial motivation for the program was that the Justice of the Peace also acts as coroner and is
often required to be a first responder to deaths and must investigate the cause. Id. In an effort to
provide better comfort and counsel to those present at the scene of the death, and to allow him to
focus on his role as investigator, the Ju~tice of the Peace established the chaplain program. Id.
Governor Patrick further explains that the volunteer chaplains, upon request of a deceased' s friends
and family, "provide care and counsel to the mourners in those first-on-scene situations," and that
they are also invited to "give a brief prayer during the opening ceremonies" of the Justice of the
Peace's court proceedings. Id. Concerned that these practices may be unconstitutional, the State
Commission on Judicial Conduct ("Commission") has strongly cautioned the, Justice of the Peace
against this chaplain program and his current courtroom prayer practice. Id. at 2. Your requests
ask this office to address the constitutionality of those and similar practices.
1
Letter from Honorable Dan Patrick, Lt. Gov., to Honorable Ken Paxton, Tex. Att'y Gen. at I (Feb. 16,
2016) ("Patrick Request"); Letter from Ms. Seana Willing, Exec. Dir., State Comm'n on Judicial Conduct, to
Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Feb. 17, 2016) ("Commission Request"), https://
www.texasattomeygeneral.gov/opinion/tequests-for-opinions-rqs.
The Honorable Dan Patrick (KP-0109)
Ms. Seana Willing
Page2
The First Amendment to the U.S. Constitution provides that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST.
amend. I. "The Fourteenth Amendment imposes those substantive limitations on the legislative
power of the States and their political subdivisions." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 301 (2000). Your questions therefore require an analysis of whether the courtroom prayer
and chaplain practices about which you ask are in violation of the Establishment Clause.
We first address the Commission's question concerning whether a "moment of silence or
a perfunctory acknowledgement of religion by stating words to the effect, 'God save the State of
Texas and this Honorable Court"' would be constitutional. Commission Request at 2. Both the
United States Supreme Court and the Texas Supreme Court have longstanding practices of opening
their sessions with such an invocation. See Marsh v. Chambers, 463 U.S. 783, 786 (1983). While
the U.S. Supreme Court has not directly addressed the constitutionality of this practice, it has
repeatedly acknowledged it in the context of upholding other practices against Establishment
Clause challenges. Town ofGreece v. Galloway, 134 S. Ct. 1811, 1825 (2014); Lynch v. Donnelly,
465 U.S. 668, 693 (1984) (O'Connor, J., concurring). The Court has explained that the recitation
of this type of phrase at the opening of court sessions is like legislative prayer in that it is "part of
our heritage and tradition, [and] part of our expressive idiom." Galloway, 134 S. Ct. at 1825.
Presumably the Court would not continue the practice of beginning its sessions in this manner if it
thought doing so violated the Constitution. Courts do not violate the Establishment Clause by
opening court proceedings with a statement such as, "God save the State of Texas and this
Honorable Court."
We next address the constitutionality of a chaplain-led prayer like that being performed in
the court of the Justice of the Peace about whom you ask. 2 "The opening of sessions oflegislative
and other deliberative public bodies with prayer is deeply embedded in the history and tradition of
this country." Marsh, 463 U.S. at 786. The Justice of the Peace's courtroom prayer practice as
you describe it is in many ways similar to the Town of Greece's practice of opening its board
meetings with prayer, which the U.S. Supreme Court upheld in 2014 against a challenge under the
Establishment Clause. See Galloway, 134 S. Ct. at 1828. In both instances, religious leaders of
any faith are invited to deliver a prayer at the beginning of proceedings. See id. at 1816; Patrick
Request at 3. No guidance is given about the tone or content of the prayers. See Galloway, 134
S. Ct. at 1816; Patrick Request at 3. While the public officials themselves participate in the prayer,
the public is not required to do so, and nothing suggests that nonparticipants are disadvantaged or
disfavored due to their decision not to participate. See Galloway, 134 S. Ct. at 1826; Patrick
Request at 4. In upholding the prayers in Galloway, the Court emphasized that invocations at the
opening oflegislative sessions address gatherings of people comprising many different creeds:
These ceremonial prayers strive for the idea that people of many
faiths may be united in a community of tolerance and devotion.
2 Although this office does not find facts in the opinion process, we will assume facts described in a request
letter as true for purposes ofrendering legal advice in an opinion. See Tex. Att'y Gen. Op. No. JC-0134 ( 1999) at I.
The Honorable Dan Patrick (KP-0109)
Ms. Seana Willing
Page 3
Even those who disagree as to religious doctrine may find common
ground in the desire to show respect for the divine in all aspects of
their lives and being. Our tradition assumes that adult citizens, firm
in their own beliefs, can tolerate and perhaps appreciate a
ceremonial prayer delivered by a person of a different faith.
134 S. Ct. at 1823. Justice Kennedy further explained that "legislative bodies do not engage in
impermissible coercion merely by exposing constituents to prayer they would rather not hear and
in which they need not participate." Id. at 1826-27 (emphasizing that giving "[o ]ffense ... does
not equate to coercion"). A court would likely apply the same analysis to a courtroom prayer to
open proceedings. 3
The Commission raises a distinction between the legislative prayer addressed in Galloway
and the courtroom prayer at issue here. Commission Letter at 5. Courts have frequently addressed
and upheld opening prayers before state and local legislative bodies, and they have done so in part
based on the history and tradition of such legislative prayers since the Continental Congress. See,
e.g., Marsh, 463 U.S. at 787; Pelphrey v. Cobb Cty., 547 F.3d 1263, 1278 (I Ith Cir. 2008)
(upholding a county commission's practice of allowing volunteer leaders of different religions to
offer invocations at meetings); Simpson v. Chesterfield Cty. Bd. ofSupervisors, 404 F.3d 276, 284
(4th Cir. 2005). Courts have said less with regard to prayer in the courtroom. The Commission
points to one Fourth Circuit Court of Appeals decision to support its position that judicial prayer,
in contrast with legislative prayer, does not survive scrutiny under the Establishment Clause. See
Commission Letter at 3; N Carolina Civil Liberties Union Legal Found. v. Constangy, 947 F.2d
1145 (4th Cir. 1991); see also Peters v. Ashcroft, 383 F.3d 302, 305 n.2 (5th Cir. 2004) (explaining
that cases from different circuits do not control the Fifth Circuit's construction of state and federal
law). Constangy involved the practice of a state district judge beginning court proceedings each
day by personally reciting a religious prayer before the litigants and their attorneys in his
courtroom. Constangy, 947 F.2d at 1147, 1149. Unlike the facts in the scenario here, the judge in
Constangy did not invite leaders of all faiths to pray. Id. at 1149. Limiting the opinion to "the
courtroom prayer at issue,'' the court concluded that the judge's practice was unconstitutional. Id.
at 1152.
We have found no federal appellate decisions that have directly analyzed courtroom prayer
under the Establishment Clause in the twenty-five years since Constangy was issued. The
Constangy court based its decision in part on the distinction it drew between the historical practice
oflegislative prayer and the lack of such historical practice with regard to courtroom prayer, stating
that "[j]udicial prayer in the courtroom is not legitimated under the Establishment Clause by past
history or present practice." Id. at 1149. However, as discussed above, the U.S. Supreme Court
3While the Commission urges use of the lemon test to determine whether the Establishment Clause is
violated, many of the U.S. Supreme Court's "recent cases simply have not applied the lemon test." Van Orden v.
Perry, 545 U.S. 677, 686 (2005); see Commission Request at 3; lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
The Court made no mention of the lemon test in Galloway, and it is therefore unlikely that a court would apply it to
the similar circumstances presented here.
The Honorable Dan Patrick (KP-0109)
Ms. Seana Willing
Page4
has opened its sessions with the prayer, "God save the United States and this Honorable Court,"
since at l'east 1827. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 29 (2004) (Rehnquist,
C.J., concurring in the judgment). Furthermore, the Court has acknowledged that the judiciary has
a "long-established practice of prayer at public events." Lee v. Weisman, 505 U.S. 577, 635 (1992).
The Court has also explained that "Marsh must not be understood as permitting a practice that
would amount to a constitutional violation if not for its historical foundation." Galloway, 134 S.
Ct. at 1819. Thus, other courts deciding the issue may disagree with Constangy that prayer in
judicial settings lacks historical foundation.
Prior to the Court's decision in Galloway, it used four different tests to evaluate various
actions dhallenged on Establishment Clause grounds: (1) the three-pronged Lemon test; (2) the
"endorsement" test; (3) the "coercion" test; and (4) the Van Orden test based on history. See Van
Orden v. Perry, 545 U.S. 677, 699-703 (2005); Lee v. Weisman, 505 U.S. 577, 584-87 (1992);
Cty. ofAllegheny v. Am. Civil Liberties Union, 492 U.S. 573, 592-93 (1989); Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971). Although it was difficult to predict which test the Court would
apply to a specific set of facts, the court in Constangy reviewed the constitutionality of the
courtroom prayer under the Lemon test. See Constangy, 947 F.2d at 1147-49.
However, since the decision in Constangy, the Supreme Court, addressing facts analogous
to those here, provided clear guidance regarding the constitutionality of prayer before
governmental entities and has combined an evaluation of history and coercion. 4 As in Galloway,
4
Perhaps the clearest explanation for the variety of approaches the Court has utilized in Establishment
Clause jurisprudence comes from the late Justice Scalia:
As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and
buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little
children and school attorneys of Center Moriches Union Free School District. Its most recent
burial, only last Term, was, to be sure, not fully six feet under. ... Over the years, however, no
fewer than five of the currently sitting Justices have, in their own opinions, personally driven
pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has
joined an opinion doing so.
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to
scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb
at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold
a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three
prongs no more than helpful signposts. Such a docile and useful monster is worth keeping around,
at least in a somnolent state; one never knows when one might need him.
Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring)
(quotation marks and citations omitted). Cases like Marsh and Galloway illustrate that the Court has not utilized the
Lemon test for prayers before governmental sessions.
The Honorable Dan Patrick (KP-0109)
Ms. Sear;ia Willing
Page 5
nothing in the facts described suggests that the Justice of the Peace compels or coerces individuals
in his courtroom to engage in a religious observance. See Galloway, 134 S. Ct. at 1825. Instead,
the bailiff provides an opportunity for individuals to leave the courtroom during the prayer and
explains that participation in the prayer will have no effect on the decisions of the court. Patrick
Request at 4; cf Galloway, 134 S. Ct. at 1826 (explaining that although board members
participated, they did not solicit participation from the public, and nothing in the record indicated
that citizens were treated differently based on whether they participated in the prayer).
Accordingly, we believe a Justice of the Peace's practice of opening daily court proceedings with
a prayer by a volunteer chaplain as you describe is sufficiently similar to the U.S. Supreme Court's
decision in Galloway such that a court would likely be compelled to agree with Galloway that the
long-standing tradition of opening a governmental proceeding with prayer does not violate the
Establishment Clause. 5
Finally, we address the constitutionality of a volunteer chaplain program, whereby
religious leaders, upon request, provide counsel to persons in distress. See Patrick Request at 9.
While we have found no court decisions addressing a volunteer chaplain program exactly like that
described, courts have upheld chaplain programs in a variety of other contexts. In Marsh, the U.S.
Supreme Court upheld the Nebraska Legislature's hiring of a chaplain, who was chosen by the
Legislative Council and paid out of public funds. 463 U.S. at 784-85, 794. Courts in other
jurisdictions have likewise upheld the hiring of chaplains by a county hospital, prisons, and
military establishments in order to provide counseling and guidance to individuals who request it.
See Carter v. Broadlawns Med Ctr., 857 F.2d 448, 457 (8th Cir. 1988); Johnson-Bey v. Lane, 863
F.2d 1308, 1312 (7th Cir. 1988); Katcoffv. Marsh, 755 F.2d 223, 237 (2d Cir. 1985). In each of
these cases, the chaplains were paid by public funds, creating more significant Establishment
Clause concerns than exist here, where the chaplains serve on a voluntary basis without cost to the
taxpayer and only upon request of those who wish to receive the chaplain's assistance. A court
would therefore likely conclude that the volunteer chaplain program as you describe it does not
violate the Establishment Clause. 6
5Nothing in the facts presented to us indicates "that the invocations denigrate nonbelievers or religious
minorities, threaten damnation, or preach conversion." Galloway, 134 S. Ct. at 1823. The U.S. Supreme Court has
explained that were such circumstances to exist, the questions presented would be different, and they could raise
constitutional concerns. Id.
6
The Commission has advised this office that it likewise "does not consider a judge's operation of a Court
Chaplaincy Program to be an Establishment Clause issue." Brief from Ms. Seana Willing, Exec. Dir., State Comm'n
on Judicial Conduct, to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Mar. 4, 2016).
The Honorable Dan Patrick (KP-0109)
Ms. Seana Willing
Page 6
SUMMARY
A Justice of the Peace does not violate the Establishment
Clause by opening a court session with the statement "God save the
State of Texas and this Honorable Court."
A court would likely conclude that a Justice of the Peace's
practice of opening daily court proceedings with a prayer by a
volunteer chaplain as you describe is sufficiently similar to the facts
in Galloway such that the practice does not violate the Establishment
Clause.
A court would likely conclude that the volunteer chaplain
program you describe, which allows religious leaders to provide
counseling to individuals in distress upon request, does not violate
the Establishment Clause.
Very truly yours,
KEN PAXTON
Attorney General of Texas
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4407756/ | J-A02026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: S.P.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
v. :
:
:
APPEAL OF: G.M., III :
: No. 1059 MDA 2018
Appellant
Appeal from the Decree Entered June 6, 2018
In the Court of Common Pleas of Dauphin County Orphans’ Court at
No(s): 47 AD 2018
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
DISSENTING MEMORANDUM BY NICHOLS, J.: FILED JUNE 18, 2019
I disagree with the majority and would conclude that the trial court erred
in granting CYS’s petition based on Section 2511(a)(2) and (b). Therefore, I
respectfully dissent.
A review of the record reveals the following background to this case.
CYS did not contest the fact that Father performed parental duties and
developed a close bond with Child before his incarceration in May 2016. See
N.T., 6/4/18, at 14-15. Father resided with Child for the first four years of
Child’s life. Id. at 7-34. In 2014, Father separated from Child’s mother, but
maintained visitation with Child during 2014 and 2015. Id. at 45. According
to Heather Gutshall, a CYS caseworker, Father “was a great father, [and he]
was the identified father for all the siblings because the other fathers were not
part of their lives. He would go to activities. He would go to school. He did
things with them that the other fathers did not.” Id. at 15.
J-A02026-19
At the end of May 2016, Father was taken into custody in Cumberland
County for criminal charges involving possession with intent to deliver and a
firearm. See CP-21-CR-000187-2016 (187-2016) (indicating Father was
arrested on May 30, 2016). In June 2016, while Father was in Cumberland
County Jail, CYS removed Child from her mother’s care and took custody of
Child. See N.T., 6/4/18, at 5, 29.
Father testified that he remained in Cumberland County Jail between
June 2016 and February 2017. During that time, he attempted to remain in
contact with Child. Id. at 33. Father explained that on one occasion, he spoke
to Child on the phone during a three-way call with his sister. Id. However,
Father stated that after he spoke to Child, her foster family indicated that
Child “kind of got upset and was crying and saying she missed” him. Id.
Father asserted that he coordinated with his mother to send gifts and clothes
to Child and her foster siblings. Id. at 33-34. He also testified that he sent
Christmas gifts to Child through a local church organization in December 2016.
Id. at 33, 40.
On January 17, 2017, Father pled guilty at docket 187-2016 and was
sentenced to forty-two to eighty-four months’ imprisonment. In February
2017, Father was transferred from Cumberland County Jail to SCI-Camp Hill.
Id. at 30. Father remained at Camp Hill from February 2017 to July 2017.
While at Camp Hill, Father wrote directly to Child on April 2, 2017, May
6, 2017, and June 12, 2017. Id. at 35. Father testified that he did not receive
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responses from Child or from her foster family. Id. at 36. Father also
continued to communicate with CYS.
In an April 2, 2017 letter to CYS, Father explained that he was unable
to get in contact with his appointed counsel in this matter. Father’s Ex. 2 at
1. He explained that his mother and sister were working with CYS to get
custody of Child while he was in prison, and indicated that he wanted Child to
stay with them “until she is able to be with me.” Id. He also requested
information from CYS about scheduling visitation with Child. Id. Finally,
Father requested information about “everything I have to do to work towards
getting my daughter back one day.” Id.
In a May 8, 2017 letter to CYS, Father indicated that he never received
a response to the April 2, 2017 letter. Id. at 7. Father again asked what he
needed to do to protect his parental rights.
In a June 12, 2017 letter to CYS, Father indicated that he received the
information from CYS regarding prison programs. Id. at 9. However, he
explained that he was still assigned to the Classification Unit at Camp Hill,
which precluded him from participating in any prison programs until he was
assigned to his “home jail.” Id.
In a July 5, 2017 letter to CYS, Father indicated that he was transferred
to SCI-Pine Grove, and he was on the waiting list for the programs that CYS
instructed him to complete. Id. He also inquired about his letters to Child,
and indicated that he had not gotten a response or any confirmation that she
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had received them. Id. On July 11, 2017, the trial court found aggravated
circumstances against Father based on his limited contact with Child.1
With respect to visitation with Child, Father testified that DOC rules
precluded him from placing a minor on his visitors list or on his phone list.
N.T., 6/4/18, at 30-31; 46. Although Child’s foster family could have been
added to Father’s vistors list, he indicated that CYS instructed him to go
through the Agency, and not to contact the foster family directly under any
circumstances.2 Id. at 46. Appellant continued to remain in contact with
Child either directly or through his mother.
On May 3, 2018, CYS filed the petition to terminate Father’s parental
rights under 23 Pa.C.S. § 2511(a)(1), (2), and (b). The trial court held a
hearing at which Ms. Gutshall testified in support of the petition. Father, who
____________________________________________
1 Father did not appeal the finding of aggravated circumstances.
2 The Pennsylvania Dependency Benchbook (Benchbook) includes an entire
section on dependency cases involving incarcerated parents. Administrative
Office of Pennsylvania Court’s Office of Children and Families in the Courts,
Pennsylvania Dependency Benchbook §§ 8.1-8.8 at 126 (2014). Specifically,
the Benchbook recommends that the hearing judge order an incarcerated
parent to appear at every hearing, either by transport or through video
conferencing. Id. at § 8.3. With respect to visitation, the Benchbook notes
that a court should order visitation, as many institutions do not permit contact
visits without a court order, and there is a lack of written county protocol for
working with incarcerated parents with dependent children. Id. § 8.4. It does
not appear that either of these avenues were pursued in Father’s case.
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was represented by counsel, testified on his own behalf. Child’s guardian ad
litem was present at the hearing.3
Ms. Gutshall testified that Father did not comply with his goals of
maintaining contact with Child, maintaining communication with CYS,
attending court hearings, or attending CYS meetings and treatment plan
meetings. See N.T., 6/4/18, at 6-10. During cross-examination by Father’s
counsel, Ms. Gutshall acknowledged that Father was continuing to make
efforts “to the best of his ability due to his incarceration.” Id. at 20.
On redirect examination by CYS’s counsel, Ms. Gutshall asserted that
Father could have done more, explaining that:
If you see based on the documentation here, [C]hild was placed
in June of 2016. We did not receive any contact or a birthday card
in October of 2016. So our concern is that after countless
conversations with him, his counselor, the letters that we sent, his
mother, his sister, as far as what he could have done, he failed to
do it.
We talked to him repeatedly to obtain an attorney so that he could
be present and make sure his rights were represented in court.
He failed to do that for a whole entire year up until the point of
2017. So our concern is that he could have written a lot more
than once a month. He could have engaged a lot more than what
he did and he did not.
Id. at 22.
____________________________________________
3The trial court did not appoint separate legal counsel for Child. See In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). However, as discussed below,
Child expressed a preference to be adopted by a foster family, although she
wished to remain in contact with Father.
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Ms. Gutshall indicated that Child is aware of Father’s role in her life prior
to his incarceration. Id. at 20. When asked by Father’s counsel whether Child
had any fear or hostility towards Father, Ms. Gutshall stated “no, not at all,
just more so emotions as far as missing him.” Id. According to Ms. Gutshall,
Child wants to be adopted by her foster family, but wants to remain in contact
with Father. Id. at 15, 20. Ms. Gutshall testified that Child is in therapy, as
she is “struggling emotionally.” Id. at 23.
Child’s guardian ad litem stated that “for the record, I talked to [C]hild
on a number of occasions, and at seven she’s very confused, conflicted, upset
about the whole process.” Id. at 47. Child’s guardian ad litem stated that
Child is “very comfortable where she is with” foster parents, but also that Child
“misses her sister; in one breath [she] would want to go where her sister is
with that foster parent. . . .” Id. The guardian ad litem did not indicate that
Child wanted to return to Father’s care. Id. at 47-48. The guardian ad litem
further stated that Child did not want to live with Father’s mother. Id. at 48.
At the conclusion of the hearing, the trial court issued its determination
that termination of Father’s parental rights was appropriate under Sections
2511(a)(2) and (b). The court authored a separate Rule 1925(a) opinion
further explaining its decision.
As to Section 2511(a)(2), the trial court initially acknowledged that Child
would be in Father’s custody if he was not incarcerated, which would not be a
“bad thing.” N.T., 6/4/18, at 51. The court noted that Father “could do very
little in prison[,]” but indicated that Father had made an effort to maintain his
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relationship with Child and utilized the resources available to him in prison.
Id. The court acknowledged CYS’s argument that Father’s efforts did not
“really start in earnest until there was a termination” but stated that it would
give Father “the benefit of the doubt.” Id. The court also found that Father
participated in prison programs and did not “have any misconducts or
infractions,” which showed “a light at the end of the tunnel for him . . . .” Id.
at 52. The court noted that an incarcerated parent is “expected to utilize the
resources available, and it appears that [Father] is.” Id.
The trial court nevertheless concluded that Father could not meet Child’s
essential needs from prison, and because he would be incarcerated for
“another year or more,” Child’s need for permanency should not be delayed.
Id. at 53. The court noted that Child did not have stability or consistency “up
until the time of foster care,” and her needs could not be put on hold. Id.
After Father filed his appeal, the trial court offered a different rationale
in its Rule 1925(a) opinion:
We find Father’s contact with [Child] and participation in parenting
programs during incarceration to be belated. Although Father
knew of [Child’s] placement in June 2016, he delayed writing to
her until May 2017. Father began earnest action in prison
programs only after the finding of Aggravated Circumstances in
July 2017, more than one year after [Child] came into placement.
We found Father’s attempts to explain delays in his participation
in prison programs, as caused by others, to lack credibility. Such
explanations do not excuse his lack of timely action to protect his
parental rights.
Trial Ct. Op., 8/16/18, at 7.
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Initially, I am troubled by the trial court’s shifting rationales in its
statements at the hearing and its Rule 1925(a) opinion. First, the court’s
initial finding that Child lacked permanency and stability before placement in
foster care ignores the uncontradicted evidence that Father played an active
role in Child’s life before his incarceration. See N.T., 6/4/18, at 14-15.
Second, the court’s initial finding that Father made reasonable efforts while in
prison contradicts its later conclusion that Father’s efforts to protect his
parental rights were belated. See id. at 51; Trial Ct. Op. at 7. In my view,
these inconsistencies suggest that the trial court failed to consider the full
context of the case, and further undermine the court’s conclusion that
termination of Father’s parental rights was warranted under Section
2511(a)(2).
In order to terminate parental rights based on incapacity, the following
three elements must be met: (1) repeated and continued incapacity; (2) such
incapacity has caused the child to be without essential parental care, control
or subsistence necessary for her physical or mental well-being; and (3) the
causes of the incapacity cannot or will not be remedied. In re Adoption of
C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015).
As to incarceration, it is well settled that
incarceration, while not a litmus test for termination, can be
determinative of the question of whether a parent is incapable of
providing “essential parental care, control or subsistence” and the
length of the remaining confinement can be considered as highly
relevant to whether “the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied by the
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parent,” sufficient to provide grounds for termination pursuant to
23 Pa.C.S. § 2511(a)(2).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (citations omitted).
Here, the trial court concluded that Father’s incarceration had rendered
him incapable of providing Child with essential parental care. See N.T.,
6/4/18, at 51. The record arguably supports this conclusion.4
However, I cannot agree that there was sufficient evidence presented
to establish that Father’s parental capacity cannot or will not be remedied.
See, e.g., S.P., 47 A.3d at 831 (holding that the father’s release from prison
would not remedy his parental incapacity, as he would still be required to enter
a halfway house; further, because he was incarcerated since the child’s birth,
he did not have a relationship with the child and he lacked the skills necessary
to care for a child with special needs); see also In re E.A.P., 944 A.2d 79,
85 (Pa. Super. 2008) (stating that the mother’s ability to remedy her parental
incapacity was not a “reasonable prospect,” despite her participation in prison
programs, as she had failed to parent her child for the past ten years, had no
relationship with the child, and was a registered sex offender).
Unlike in S.P. and E.A.P., the uncontroverted evidence demonstrates
that Father was an active parent for the first five years of Child’s life. Child
____________________________________________
4 Under the circumstances of this case, I would disagree with the trial court’s
conclusion. However, our standard of review is narrow, and “an abuse of
discretion does not result merely because the reviewing court might have
reached a different conclusion.” S.P., 47 A.3d at 827.
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knows Father, remembers his role in her life prior to his incarceration, and has
indicated that she misses him. Further, CYS presented no evidence of other
factors that would impede Father’s ability to parent Child upon his release
from prison.5 See S.P., 47 A.3d at 831 (concluding that the parent could not
remedy their incapacity, as the parent had no relationship with the child prior
to their imprisonment and faced additional barriers to their ability to parent
even if they were released on parole); E.A.P., 944 A.2d at 85 (same).
Therefore, I would conclude that the trial court’s findings and
statements of reasons do not support its decision to terminate Father’s
parental rights under Section 2511(a)(2). Under the circumstances of this
case, I discern no record support for a finding that Father’s incapacity cannot
or will not be remedied.
To the extent that the majority reviews the trial court’s ruling as to
Section 2511(b), I am constrained to disagree with the decision to affirm. At
the termination hearing, the trial court reasoned:
[B]ased on everything that’s been presented here, we believe
[termination is] in the best interest of [C]hild -- and [C]hild
bonded with [her] present family. It doesn’t mean the child
doesn’t love the parent.
I believe [C]hild loves [F]ather. I think it’s -- there’s confusion
because it’s been inconsistent. Particularly [F]ather hasn’t been
with the child for over two years, and, I mean, that has a
significant impact on a young child.
____________________________________________
5 Father will be eligible for parole in July 2019, approximately one year from
the date of the termination hearing.
- 10 -
J-A02026-19
N.T., 6/4/18, at 53.
In its Rule 1925(a) opinion, the trial court stated:
The record is devoid of evidence of a bond with Father which, if
broken, would cause detriment to [Child].
We recognize that Father seeks additional time within which to
prove that he can properly parent after release from incarceration,
which would occur in 2019, at the earliest. In deciding the issue
of the best interests of a child, our appellate courts have noted
that it is essential to allow a child “a chance to have his [or her]
fundamental needs met without the constant insecurity that
comes with knowing that someday, perhaps in the unreasonably
distant future, [he or she] might again be wrenched away from
his committed and capable caregiver.” In re N.C., 763 A.2d 913,
919 (Pa. Super. 2000). This [c]ourt has grave concerns about the
impact upon [Child] of additional years of uncertainty and
ultimately, the potential of removal from a foster home which has
provided love, security and stability.
Trial Ct. Op. at 8. The trial court concluded that Child’s need for permanency
and stability outweighed any potential bond to Father. See N.T., 6/4/18, at
53.
Section 2511(b) does not make specific reference to an evaluation of
the bond between parent and child, but our case law requires the evaluation
of any such bond. See In re E.M., 620 A.2d 481, 483 (Pa. 1993). However,
this Court has held that the trial court is not required by statute or precedent
to order a formal bonding evaluation performed by an expert. See In re
K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
We have stated that “the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” Adoption of J.M., 991
A.2d 321, 324 (Pa. Super. 2010) (citing In re K.Z.S., 946 A.2d 753, 763 (Pa.
- 11 -
J-A02026-19
Super. 2008)). Moreover, the burden is upon the petitioner “to prove the
grounds for termination of parental rights under [Section 2511(b)] by clear
and convincing evidence.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citing
S.P., 47 A.3d at 821–822).
Here, the uncontradicted evidence established that Father was a good
father to Child, and there was no indication, aside from Father’s incarceration,
that the bond was detrimental. See N.T., 6/4/18, at 15, 53. Although Father’s
incarceration caused instability in Child’s life, there were several indications in
the record that Child was deeply troubled over the possibility that her bond
with Father could be severed permanently. See id. at 20-23, 47.
Therefore, I cannot agree with the trial court’s conclusion that “[t]he
record is devoid of evidence of a bond with Father which, if broken, would
cause detriment to [Child].” Trial Ct. Op. at 8. Given the trial court’s limited
analysis, I am of the view that the court failed to afford the “utmost attention”
to the effects of terminating Father’s parental right on Child. See T.S.M., 71
A.3d at 267. Indeed, our Supreme Court has explained that “attention must
be paid to the pain that inevitably results from breaking a child’s bond to a
biological parent, even if that bond is unhealthy, and we must weigh that
injury against the damage that bond may cause if left intact.” Id. at 270.
Therefore, I respectfully dissent.
- 12 - | 01-03-2023 | 06-18-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142350/ | ::
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. A~~fstnnt | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126513/ | DISSOLVE INJUNCTION and REMAND; and Opinion Filed February 14, 2017.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-15-00193-CV
NOEUI LAU LALONDE, Appellant
V.
CYNTHIA ALLEN, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-04716-2013
MEMORANDUM OPINION
Before Justices Francis, Lang, and Lang-Miers
Opinion by Justice Lang-Miers
In this accelerated 1 interlocutory appeal, Noeui Lau Lalonde 2 contends the trial court
abused its discretion by granting a temporary injunction. We agree and dissolve the injunction.
Cynthia Allen is an attorney who represented Lalonde in a divorce proceeding. Allen
intervened in that proceeding seeking payment of attorney’s fees in the amount of $48,465.40 for
services rendered to Lalonde. She alleged claims for suit on sworn account, breach of contract,
and quantum meruit. Meanwhile, the divorce was finalized and the final decree awarded Lalonde
a judgment of $50,000 against her ex-husband for her attorney’s fees. The trial court severed the
intervention from the divorce proceeding.
1
After the briefs were filed in this appeal, appellant filed a suggestion of bankruptcy and we abated the appeal. Upon appellant’s motion,
we reinstated the appeal and now consider the merits of appellant’s issues.
2
Appellant was married to Andre Lalonde. The parties and the pleadings refer to appellant as both Lau and Lalonde. The final decree of
divorce uses “Lau.” But appellant’s brief states, “Noeui Lau Lalonde.” We will refer to her as Lalonde.
Lalonde answered Allen’s lawsuit and asserted affirmative defenses and a counterclaim
for legal malpractice. While the lawsuit was pending, Allen learned that Lalonde and her ex-
husband were selling the marital residence and that the title company was going to withhold
$50,000 from the sales proceeds to satisfy the judgment against Andre and disburse those funds
to Lalonde. Allen asked the court for an emergency order temporarily restraining the title
company from disbursing the funds to Lalonde until the court could hold a hearing. The court
granted the TRO and set the matter for a hearing.
At the hearing on the application for temporary injunction, Allen testified that she was
owed “closer to $60,000” in attorney’s fees and that she knew of no other source “that money
can be retrieved from other than the money” from the sale of the residence. She testified that in
her opinion Lalonde would never pay the fees she owed Allen “simply because I would not
continue on her case.” Allen said that while the judgment for attorney’s fees was awarded to
Lalonde, “it was on my work, my tireless work, and it would be servitude. She [sic] getting it for
free. I’m a slave because I’ve not been paid.” Allen testified that unless Lalonde was successful
on her claim for malpractice, she was confident she would prevail on her claim for attorney’s
fees. Allen said she knew of no other remedy at law that would be adequate to secure the
payment of her fees given that Lalonde would not pay her.
Allen’s attorney argued that without the injunction, Lalonde would receive a windfall of
$50,000 and “[t]hat would just be an injustice in this case, that she get that windfall.” He argued
that Lalonde had not presented any evidence that she would be harmed by putting the money in
the registry of the court. Lalonde responded that it was not her burden to show harm, and that the
evidence did not show that Lalonde was unable to satisfy a judgment against her. She argued that
the only evidence Allen presented was that Lalonde would not “want to pay” Allen, which “is
not a standard.”
–2–
At the conclusion of the hearing, the trial court orally granted a temporary injunction,
stating it wanted “to maintain the status quo and make sure until we decide the merits that the
money is not disbursed.” About a month later, the trial court signed the temporary injunction
order. In the order, the trial court stated that, without an injunction, Lalonde would be “unjustly
enriched with a windfall of $50,000.00 award from the underlying divorce action.” The court
specifically found that Allen had presented “evidence of a substantial likelihood of success on
the merits of the claims she has asserted”; that disbursement of the funds to Lalonde would cause
Allen “immediate and irreparable harm”; and that Allen had no adequate remedy at law. With
regard to the element of imminent harm and irreparable injury, the temporary injunction stated
verbatim:
Should the $50,000.00 disbursement of the funds be made to Defendant would
have a substantial likelihood to cause CYNTHIA ALLEN immediate and
irreparable harm; causing a loss of good will to payments owed and due to
Plaintiff, Plaintiff’s firm and plaintiff’s contractor’s and agents; and causing a
breach in contracts that service Plaintiff and Plaintiff’s law firm for over ten (10)
years. As such, harm is imminent if the Court does not issue the temporary
injunction . . . .
The temporary injunction enjoined Lalonde from taking possession of or disbursing the
$50,000 from the sale of the residence and “ordered that the funds shall be placed in the courts
registry until further orders of the court.” 3 On the same day the court signed the temporary
injunction order, the court signed an order “clarifying the temporary restraining order” and
specifically ordered the title company to place the $50,000 in the registry of the court.
Lalonde argues on appeal that the trial court abused its discretion by issuing the
temporary injunction because (1) the injunction did not comply with rule 683 of the Texas Rules
of Civil Procedure; (2) Allen did not prove a probable, imminent, and irreparable injury; (3)
Allen did not prove a probable right to relief; and (4) the injunction seized exempt property. She
3
The injunction did not order any specific individual or entity to place the funds in the registry of the court.
–3–
asks that we dissolve the temporary injunction and vacate the order “clarifying the temporary
restraining order.”
We review a trial court’s order granting a temporary injunction for an abuse of discretion.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). We view the evidence in the light
most favorable to the trial court’s order and indulge every reasonable inference in its favor.
Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, at *5 (Tex. App.—
Dallas Mar. 3, 2016, no pet.) (mem. op.). We will not substitute our judgment for that of the trial
court unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable
disagreement. Id. A trial court abuses its discretion when it misapplies the law to established
facts, or when the evidence does not reasonably support the court’s determination of the
existence of one of the elements required to be proved. Id.
A temporary injunction is an extraordinary remedy that does not issue as a matter of
right. Butnaru, 84 S.W.3d at 204. To obtain a temporary injunction, the applicant must plead and
prove (1) a cause of action against the defendant, (2) a probable right to the relief sought, and (3)
a probable, imminent, and irreparable injury in the interim. Id. “An injury is irreparable if the
injured party cannot be compensated in damages or if the damages cannot be measured by any
certain monetary standard” and the only adequate relief available is in equity. Leibovitz v.
Sequoia Real Estate Holdings, L.P., 465 S.W.3d 331, 352 (Tex. App.—Dallas 2015, no pet.)
(citing Butnaru, 84 S.W.3d at 204). In other words, to show the type of injury that warrants
equitable relief, there must be no adequate remedy at law. See Butnaru, 84 S.W.3d at 209.
Ordinarily equitable relief is not available for a breach of contract because a suit for damages is
deemed to be an adequate remedy. Id.
Without regard to whether the temporary injunction complied with civil procedure rule
683, we conclude that Allen did not establish her right to the relief sought.
–4–
Allen sought recovery of damages in the amount of $48,465.40. She testified that without
the injunction, she believed Lalonde would not pay her. But Allen’s belief that Lalonde would
not pay the attorney’s fees does not make the injury irreparable. See id.; see also Benefield v.
State, 266 S.W.3d 25, 30–31 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (evidence at most
showed “fear of the possibility of a future injury”). Allen also testified that she did not have an
adequate legal remedy because she was not aware of any other funds owned by Lalonde from
which Lalonde could pay the attorney’s fees owed. But Allen testified that she knew Lalonde
owned a corporation and employed three or four employees. Allen said she knew Lalonde made
most of her money from October to December of each year. The evidence does not support a
finding that Lalonde had no other source of revenue from which she could pay the fees she owed.
In addition, Allen attached her billing records to her petition showing that the alleged
damages were not difficult to calculate, but were specific and measurable. See Butnaru, 84
S.W.3d at 209. An inadequate remedy at law is rarely shown when a suit for damages for breach
of contract is available. Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401
(Tex. App.—Dallas 1989, no writ); see also Sharyland Water Supply Corp. v. City of Alton, 354
S.W.3d 407, 423 (Tex. 2011); Butnaru, 84 S.W.3d at 204. Allen’s testimony did not establish
that this is one of those rare circumstances in which a suit for damages would be inadequate.
We conclude that the evidence does not support the trial court’s finding that Allen would
suffer probable, imminent, and irreparable injury without the issuance of a temporary injunction.
Consequently, the trial court abused its discretion by issuing the temporary injunction.
We sustain Lalonde’s sole issue and dissolve the temporary injunction issued on January
28, 2015. Lalonde also asks that we vacate the January 28, 2015 “Order on Motion to Clarify
Temporary Restraining Order Against North American Title Company.” However, the temporary
–5–
restraining order expired by its terms 14 days after it was signed. See TEX. R. CIV. P. 680.
Consequently, this issue is moot. We remand this cause to the trial court for further proceedings.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
150193F.P05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NOEUI LAU LALONDE, Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-15-00193-CV V. Trial Court Cause No. 380-04716-2013.
Opinion delivered by Justice Lang-Miers.
CYNTHIA ALLEN, Appellee Justices Francis and Lang participating.
In accordance with this Court’s opinion of this date, we DISSOLVE the January 28,
2015 temporary injunction and REMAND this cause to the trial court for further proceedings
consistent with this opinion.
It is ORDERED that appellant Noeui Lau Lalonde recover her costs of this appeal from
appellee Cynthia Allen.
Judgment entered this 14th day of February, 2017.
–7– | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142446/ | . | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142449/ | ~PPII’CE BBS’
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‘ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126539/ | Order entered February 14, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00154-CV
IN RE LIBERTY BROWN, Relator
Original Proceeding from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-16449
ORDER
Before Justice Francis, Justice Fillmore, and Justice Whitehill
Based on the Court’s opinion of this date, we DISMISS relator’s February 13, 2017
petition for writ of mandamus for want of jurisdiction.
/s/ BILL WHITEHILL
JUSTICE | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142367/ | .’ | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149907/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00148-CR
MICHAEL PAUL HENDRIX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2014-F-00198
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
Our review of the clerk’s record and the reporter’s record in this case indicates that they
contain “sensitive data” as that phrase is defined in Rule 9.10 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 9.10(a). Sensitive data includes “a driver’s license number,
passport number, social security number, tax identification number or similar government-issued
personal identification number.” TEX. R. APP. P. 9.10(a)(1). Sensitive data also includes “a birth
date, a home address, and the name of any person who was a minor at the time the offense was
committed.” TEX. R. APP. P. 9.10(a)(3). The clerk’s record contains the appellant’s social security
number. Volumes 2, 3, and 4 of the reporter’s record and volumes 1, 3, and 4 of the supplemental
reporter’s record contain the names of persons who were minors at the time the offense was
committed. Volume 5 of the reporter’s record contains a photograph of a child who was a minor
at the time the offense was committed—thus clearly revealing the child’s identity—which is
designed to be protected by the Rule. Rule 9.10(b) states, “Unless a court orders otherwise, an
electronic or paper filing with the court, including the contents of any appendices, must not contain
sensitive data.” TEX. R. APP. P. 9.10(b).
Rule 9.10(g) provides, “A court may also order that a document be filed under seal in paper
form or electronic form, without redaction.” TEX. R. APP. P. 9.10(g). Therefore, because the
clerk’s record and the above-listed volumes of the reporter’s record contain sensitive data, we
order the clerk of this Court or her appointee, in accordance with Rule 9.10(g), to seal the
electronically filed clerk’s record and the above-listed volumes of the reporter’s record in this case.
IT IS SO ORDERED.
BY THE COURT
Date: March 1, 2017
2 | 01-03-2023 | 03-03-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142392/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
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W.fiF. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149893/ | REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1783
September Term, 2015
KATHLEEN B. BOOMER, ET AL.
v.
WATERMAN FAMILY LIMITED
PARTNERSHIP, ET AL.
Berger,
Shaw Geter,
Eyler, James R.,
(Senior Judge, Specially Assigned)
JJ.*
Opinion by Eyler, James R., J.
Filed: March 2, 2017
* Judge Christopher B. Kehoe did not
participate in the decision to publish this
opinion.
The issue on this appeal is whether the Board of County Commissioners of Queen
Anne’s County (“the County Commissioners”) had the authority to rescind a previously
adopted ordinance in which they had approved the rezoning of a parcel of land that had
been annexed and rezoned by the Town of Queenstown. We answer that question in the
affirmative.
On November 25, 2014, by a vote of three to two, the County Commissioners
adopted Resolution 14-31, which approved Queenstown’s new zoning classification for the
annexed parcel that allowed land uses substantially different, or at a substantially higher
density, from what previously had been allowed. On December 2, 2014, four County
Commissioners, elected at the 2014 general election, were sworn into office. On December
9, 2014, by a vote of four to one, the County Commissioners adopted Resolution 14-33,
which withdrew, rescinded, voided, and nullified Resolution 14-31.
In response to the adoption of Resolution 14-33, the Town Commissioners of
Queenstown (“the Town Commissioners”) and the Waterman Family Limited Partnership
(“Waterman”), the owner of the subject property, filed, in the Circuit Court for Queen
Anne’s County, a petition for judicial review and request for a writ of administrative
mandamus. Waterman also filed a declaratory judgment action in the same court against
the County Commissioners. In both cases, the Town Commissioners and Waterman alleged
that the County Commissioners lacked authority to rescind Resolution 14-31. The two
cases were consolidated. Kathleen Boomer, Marie McNurlan, Paul A. McNurlan, Stacy L.
Swartwood, and the Queen Anne’s Conservation Association (“QACA”) intervened as
interested parties, all of whom were aligned with the County Commissioners.
After a hearing on July 21, 2015, the circuit court entered summary judgment in
favor of Waterman and the Town Commissioners and declared Resolution 14-33 “null,
void and of no legal force and effect” on the ground that the County Commissioners lacked
the “authority to repeal or rescind [Resolution] 14-31.” In addition, the court granted the
relief requested in the petition for judicial review and the request for a writ of
administrative mandamus filed by the Town Commissioners and Waterman. The County
Commissioners and the interested parties filed motions for reconsideration. On September
30, 2015, the court denied the motions. This timely appeal followed. Subsequently, the
County Commissioners voluntarily withdrew from the appeal. As a result, the parties
before us are the interested parties, whom we shall refer to collectively as “the QACA
appellants,” and the Town Commissioners and Waterman, appellees.
ISSUE PRESENTED
The sole issue presented by the QACA appellants for our consideration is whether
the County Commissioners had the authority to rescind or repeal Resolution 14-31. For
the reasons set forth below, we hold that the County Commissioners did have that authority,
and as a result, we shall reverse the judgments of the circuit court.
FACTUAL BACKGROUND
The basic facts are not in dispute. Waterman is the owner of approximately 140
acres of land in Queen Anne’s County, commonly referred to as the Wheatlands Farm
property, located immediately south of U.S. Route 50 and across from a commercial
development known as the Queenstown Outlets. Prior to the events that are the subject of
this appeal, the property was zoned Countryside, a designation that permitted agricultural
2
and low density uses. On June 25, 2014, Waterman filed a petition with the Town of
Queenstown seeking to have the Wheatlands Farm property annexed into the town. The
goal, after annexation, was to seek rezoning. After a public hearing, the Town
Commissioners voted to annex the property. Thereafter, the Town Commissioners adopted
an ordinance rezoning the Wheatlands Farm property from Countryside to Planned
Regional Commercial, which permitted commercial and high density uses. The effective
date of that ordinance was dependent upon a waiver by the County Commissioners of the
existing zoning density pursuant to Md. Code (2013 Repl. Vol., 2014 Supp.), §4-416(b) of
the Local Government Article (“LG”). 1 The statute provided that the property could not be
1
Section 4-416 of the Local Government Article provided, in part:
(a) Existing municipal authority. -- (1) Notwithstanding § 4-104(f) of
this title, if an area is annexed to a municipality that has planning and zoning
authority at the time of annexation, the municipality shall have exclusive
jurisdiction over planning, subdivision control, and zoning in the area
annexed.
* * *
(b) Different land use or density. -- Without the express approval of
the county commissioners or county council of the county in which the
municipality is located, for 5 years after an annexation by a municipality, the
municipality may not allow development of the annexed land for land uses
substantially different than the authorized use, or at a substantially higher
density, not exceeding 50%, than could be granted for the proposed
development, in accordance with the zoning classification of the county
applicable at the time of the annexation.
(c) County approval of zoning classification. -- Notwithstanding § 4-
204 of the Land Use Article and if the county expressly approves, the
municipality may place the annexed land in a zoning classification that
3
rezoned to permit development for uses substantially different from previously authorized
uses or uses at a substantially higher density, for a period of five years, unless the County
Commissioners granted express approval and waived the five-year period.
After a public hearing, on November 25, 2014, the County Commissioners passed
Resolution 14-31, which granted the express approval needed to allow for rezoning to a
classification that was substantially different and at a higher density. The approval of
Resolution 14-31 allowed development consistent with the “Planned Regional
Commercial” classification without having to wait the five-year period referred to in LG
§4-416.
On December 2, 2014, the newly elected commissioners took office. On December
9, 2014, the County Commissioners adopted Resolution 14-33, which rescinded the
express approval that previously had been granted. In response to that action, Waterman
and the Town Commissioners filed the court actions described above.
Ultimately, the circuit court concluded that the County Commissioners “had no
authority to repeal and rescind Resolution 14-31.” On July 21, 2015, the court granted
summary judgment in favor of Waterman and the Town Commissioners, and granted the
allows a land use or density different from the land use or density specified
in the zoning classification of the county or agency with planning and zoning
jurisdiction over the land prior to its annexation applicable at the time of the
annexation.
The provisions of LG § 4-416, along with other annexation provisions, became
effective on October 1, 2013. LG § 4-416 was derived without substantive change from
Md. Code (1957, 1973 Repl. Vol., 2012 Supp.), Art. 23A, §9(c) (1) and(2) and §19(s).
4
relief requested in the petition for judicial review and writ of administrative mandamus. It
also issued a declaratory judgment providing that “Resolution 14-33 adopted by the County
Commissioners of Queen Anne’s County on December 9, 2014, . . . hereby is declared to
be null, void and of no legal force and effect.”
After the court denied motions for reconsideration, the County Commissioners and
the QACA appellants noted appeals to this Court. Subsequently, the County
Commissioners dismissed their appeal. 2
DISCUSSION
I.
The QACA appellants contend that the circuit court erred in granting summary
judgment in favor of Waterman and the Town Commissioners because, under Article XI-
F, Section 6 of the Maryland Constitution, the county had the legal authority to adopt
Resolution 14-33, thereby rescinding Resolution 14-31. They argue that both Resolutions
2
In addition to filing notices of appeal, on October 9, 2015, the QACA appellants
filed in the Circuit Court for Queen Anne’s County a petition for judicial review, seeking
review of the County Commissioners’ enactment of Resolution 14-31. Waterman and the
Town Commissioners filed motions to dismiss that petition for judicial review on the
grounds that it was untimely and barred by res judicata. An interested party, Edward G.
Modell, filed a response to the petition for judicial review and a request to have the hearing
on the petition postponed. The circuit court did not rule on Mr. Modell’s request for
postponement, but Mr. Modell appeared at the hearing on November 17, 2015. Following
that hearing, the court dismissed the petition for judicial review on the grounds that it was
untimely and barred by res judicata. It also held that Mr. Modell’s claims were barred by
collateral estoppel. The QACA appellants and Mr. Modell filed timely notices of appeal.
See, Modell et al. v. Waterman Family Ltd. Partnership, et al., ___ Md. App. ___, No.
2104, Sept. Term 2015 (filed: March 2, 2017).
5
were public local laws, not public general laws; that LG §4-416 cannot restrict Queen
Anne’s County’s power under the Maryland Constitution to repeal a public local law like
Resolution 14-31; and that even absent an express power to rescind a resolution, the County
Commissioners have the inherent power to do so.
Appellees argue that, in this context, the County Commissioners’ sole source of
authority to act was LG §4-416, a public general law; thus, Resolution 14-33 cannot be a
public local law under the Maryland Constitution. Pointing out that LG §4-416 does not
contain an express right to rescind and relying on language in the statute providing that,
once waiver has been granted, the Town Commissioners have “exclusive jurisdiction” over
zoning, appellees conclude that the plain language of the statute prohibited the rescission
of Resolution 14-31.
Maryland’s Constitution provides that “[a] code county may enact, amend, or repeal
a public local law of that county by a resolution of the board of county commissioners.
The General Assembly may amplify the provisions of this section by general law in any
manner not inconsistent with this Article.” Md. Const. art. XI-F, § 6. The Constitution
defines “public local law” as:
a law applicable to the incorporation, organization, or government of a code
county and contained in the county’s code of public laws; but this latter term
specifically does not include (i) the charters of municipal corporations under
Article 11E of this Constitution, (ii) the laws or charters of counties under
Article 11A of this Constitution; (iii) laws, whether or not Statewide in
application, in the code of public general laws, (iv) laws which apply to more
than one county, and (v) ordinances and resolutions of the county
government enacted under public local laws.
Md. Const. art. XI-F, § 1.
6
There is no dispute that Queen Anne’s County is a code county. See Kent Island
Def. League, LLC v. Queen Anne’s County Bd. of Elections, 145 Md. App. 684, 689, cert.
denied, 371 Md. 615 (2002). Thus, the issue to be resolved is whether Resolutions 14-31
and 14-33 were public local laws. Our decision in Kent Island Def. League provides
guidance on that issue.
Kent Island Def. League arose out of two ordinances enacted by the Queen Anne’s
County Commissioners approving a petition to re-designate property pursuant to the
Chesapeake Bay Critical Area Protection Program, which had been enacted by the General
Assembly. Kent Island Def. League, LLC, 145 Md. App. at 686-87. A voters’ organization
known as Kent Island Defense League, LLC, presented to the Queen Anne’s County Board
of Elections a petition to refer the two ordinances to the voters of the County. Id. at 688.
The Elections Director determined that the petition was legally deficient because the
ordinances were not subject to referendum and the petition was deficient in form. Id. Kent
Island Defense League, LLC and its president, who was a registered voter in Queen Anne’s
County, filed, in the Circuit Court for Queen Anne’s County, a petition for judicial review
of that decision. Id. The developer of the property that was the subject of the referendum
petition and others filed a complaint for declaratory judgment seeking a declaration that
the petition for referendum was legally deficient. Id. After a hearing, the Circuit Court for
Queen Anne’s County held that the ordinances were not subject to referendum. Id. Kent
Island Defense League, LLC appealed.
In affirming the circuit court’s judgment, we addressed the issue of whether the
ordinances were “public local laws” within the meaning of Article XI-F, Section 7 of the
7
Maryland Constitution which provided, in part, as it does now, that “[a]ny action of a code
county in the enactment, amendment, or repeal of a public local law is subject to a
referendum of the voters in the county[.]” Id. at 689. We held that the ordinances in
question were enacted under the authority of the public general law that established the
Chesapeake Bay Critical Area Protection Program and not pursuant to the county’s home
rule powers. Id. at 692. As a result, the ordinances were not public local laws. Id.
In reaching that conclusion, we discussed the process of determining whether a law
is general or local as follows:
The classification of legislative action as general or local is based on
“subject matter and substance and not merely on form,” Cole v. Secretary of
State, 249 Md. 425, 433, 240 A.2d 272 (1968), and is determined by applying
“settled legal principles to the facts of particular cases.” Dasch v. Jackson,
170 Md. 251, 260, 183 A. 534 (1936). Enactments that apply to a single
subdivision of the state regarding a subject of local import are considered
local laws. See Tyma v. Montgomery County, 369 Md. 497, 507, 801 A.2d
148, 154 (2002)(citing Steimel v. Bd. of Election Supervisors of Prince
George’s County, 278 Md. 1, 5, 357 A.2d 386 (1976); and Norris v. Mayor
and City Council of Baltimore, 172 Md. 667, 192 A.531, 537 (1937)). Even
an enactment that appears local in nature is a general law if it affects the
interests of more than one geographical subdivision or the entire state. See
Cole, 249 Md. at 434-35, 240 A.2d 272 (citations omitted)(“The rationale …
lies in the concept that while the immediate objective sought to be achieved
was local in character, the statutes indirectly affected matters of significant
interests to the entire state: i.e., regulation of elections, control of natural
resources, and protection of state revenues derived from licenses.”)(footnote
omitted). The fact that the County’s actions followed standard home rule
procedures does not mean that the original authorization for the action was
the home rule power. The actions were pursuant to, were affected by, and
had an effect on, the entire State Critical Area Program.
Id. at 693-94.
8
Applying the analysis discussed in Kent Island Def. League to the facts of the instant
case, we conclude that Resolutions 14-31 and 14-33 were public local laws adopted
pursuant to Article XI-F, Section 6, and subject to rescission. Both Resolutions applied to
the Wheatlands Farm property that is located within “a single subdivision of the state.”
Kent Island Def. League, 145 Md. App. at 693. Appellees argue that the Town of
Queenstown is a subdivision separate from the County. As used in Kent Island Def. League
and in the context of this case, the term “subdivision” refers to a county or Baltimore City,
however, not a municipality or municipal corporation. A decision regarding the zoning
density limits applicable to Wheatlands Farm has no consequence on any land outside of
Queen Anne’s County and is a matter of purely local import. Unlike Kent Island Def.
League, the instant case does not involve a State mandated program requiring uniformity.
Rather, the County’s ability to waive its zoning density limits was purely discretionary.
The subject matter of the Resolutions in question leads us to reject appellees’
argument that the County’s authority to waive its zoning density limits for the subject
property is derived solely from LG § 4-416(a), a public general law. Article XI-F, Section
6, allows the General Assembly to “amplify the provision of this section by general law in
any manner not inconsistent with this Article.” The use of the word “amplify” is important
in that it allows the General Assembly to increase the County’s power to pass local laws.
There is nothing that restricts the power to rescind a local law adopted pursuant to the
power granted to the County by Article XI-F, Section 6. Indeed, any express or implied
limitation on the County’s right to rescind a local law would stand in direct conflict with
the State’s Constitutional provision.
9
The language in LG §4-416 giving “exclusive jurisdiction” to the Town
Commissioners, relied on by appellees, does not address the issue before us. It simply
provides that, once the County has validly approved the rezoning, the Town
Commissioners have exclusive jurisdiction. It does not address whether, in fact, a valid
approval exists.
Moreover, even absent an express provision in LG § 4-416 permitting the rescission
of a local resolution, the County has the inherent power to do so. In Dal Maso v. Bd. of
County Comm’rs of Prince George’s County, in reviewing the actions of the Montgomery
County Commissioners, sitting as the District Council, the Court of Appeals stated:
When a zoning board defines or prescribes the character and nature of
the buildings which may be made or erected in a given area, its effect is all
in the future; its plan is a guide to those who may erect buildings and the uses
and businesses to which they may be devoted; its activities are legislative
within the limits of the delegation of powers conferred. The Legislature can
amend, qualify, or repeal any of its laws, affecting all persons and property
which have not acquired rights vested under existing law; all of the courts
agree on this. It has been frequently held that this rule applies also to boards
and agencies to which legislative power has been delegated and that they may
undo, consider and reconsider their action upon measures before them. ‘It is
a general rule, subject to certain qualifications hereinafter noted, that a
Municipal Corporation has the right to reconsider its actions and ordinances,
and adopt a measure or ordinance that has previously been defeated or
rescind one that has been previously adopted before the rights of third parties
have vested. Moreover, in the absence of statute or a rule to the contrary, the
Council may reconsider, adopt or rescind an ordinance at a meeting
subsequent to that at which it was defeated or adopted, at least where
conditions have not changed and no vested rights have intervened.’ 37
Am.Jur.Sec. 150, p. 762.
Dal Maso, 182 Md. 200, 206 (1943). See also Schultze v. Montgomery County Planning
Bd., 230 Md. 76, 81-82 (1962) (An administrative body acting in a quasi-judicial capacity
10
has the right to correct errors in its decisions, but this power must not be exercised
arbitrarily and can only be exercised where there is justification and good cause); Cinque
v. Montgomery County Planning Bd., 173 Md. App. 349, 361 (2007) (Maryland recognizes
the inherent authority of agencies to reconsider their own quasi-judicial decisions). The
Resolutions in question in this case were statements of position or policy with an
administrative effect. The reasoning of Dal Maso is applicable here.
Section 4-416 of the Local Government Article is silent with respect to the power
to rescind a waiver. We presume that, at the time the Legislature enacted § 4-416 and its
predecessors, it had full knowledge and information regarding a county’s inherent right to
rescind a prior decision. Harden v. Mass Transit Admin., 277 Md. 399, 406-07 (1976)
(“The General Assembly is presumed to have had, and acted with respect to, full
knowledge and information as to prior and existing law and legislation on the subject of
the statute and the policy of the prior law.”) (citing Allers v. Tittsworth, 269 Md. 677, 684
(1973)). Absent a law or doctrine prohibiting such an action, we conclude that the County
has the inherent power to reverse its own action with respect to a public local law.
As the Court of Appeals recognized in Dal Maso, however, the authority to rescind
a resolution is not without limitation. If rights were to vest during the interim between the
enactment of a resolution and its rescission, the County would lose its ability to rescind, at
least to the extent that rights had vested. Dal Maso, 182 Md. at 206-07. See also Town of
Sykesville v. West Shore Communications, Inc., 110 Md. App. 300, 305 and 317-22
(1996)(regarding zoning changes, rights do not vest unless there is some significant and
visible construction undertaken in good faith and pursuant to valid permit). There is no
11
assertion in the instant case that any rights vested during the short time that elapsed between
the adoption of Resolution 14-31 and the adoption of Resolution 14-33.
The substantive analysis required by Kent Island Def. League, the provisions of
Article XI-F and LG §4-416, and Maryland law recognizing the County Commissioners’
inherent right to rescind a prior decision, lead us to conclude that Resolutions 14-31 and
14-33 are public local laws and that the County had the power to reverse its action in
Resolution 14-31 by adopting Resolution 14-33.
Although appellees’ frustration is understandable, the result in this case is a product
of our form of government.
JUDGMENTS OF THE CIRCUIT COURT FOR
QUEEN ANNE’S COUNTY REVERSED; COSTS
TO BE PAID BY APPELLEES.
12 | 01-03-2023 | 03-02-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/8669413/ | By Judge Charles N. Dorsey
This case is before the Court on the defendants’ Demurrer, Plea in Bar, and Motion to Dismiss the Amended Complaint. For the reasons stated, the defendants’ Demurrer and Plea in Bar as to the statute of frauds are overruled, and the defendants’ Plea in Bar as to the statute of limitations and the defendants’ Motion to Dismiss upon that ground will be taken under advisement.
Facts
In October 1991, it is alleged that Judy Parker Woody loaned $25,000 to Virginia Hughson and Mary Lynne Conner (now Mary Lynne Hughson), the defendants in this case. Am. Compl. Ex. 1. Over ten years later, on May 13, 2002, the defendants signed and had notarized a document (referred to by the plaintiff, and here solely for consistency, as “the Repayment Contract”) that is titled “Personal Loan Information,” and states: “Date of Loan: October 1991 in the amount of $25,000.00 payable *97$300.00 per month. Estimated year of Maturity 2012.” Am. Compl. ¶ 7, Ex. 1. The Repayment Contract also shows that the loan was from Woody to the defendants. Am. Compl. Ex. 1. There is no mention of any interest due on the loan or of any other terms. However, at $300 per month from the date of signing, the $25,000 loan, without interest, would be repaid in seven years or around June 2009 — earlier than the 2012 estimated year of maturity. The Repayment Contract states that Woody’s residence was in North Carolina and that the defendants’ residence was in Roanoke, Virginia, (Am. Compl. Ex. 1.5) where Virginia S. Hughson currently resides and where Mary Lynne Hughson currently owns real estate. Am. Compl. ¶¶ 2-3. Woody did not sign the Repayment Contract. Am. Compl. Ex. 1.
Almost one year after the defendants signed the Repayment Contract, Woody died testate on April 13, 2003, while domiciled in Orange County, North Carolina, and her husband qualified as the executor of her estate shortly thereafter on April 25, 2003. Am. Compl. ¶ 8. Although not specifically mentioned in Woody’s will, which is dated December 19, 2002 (seven months after the signing of the Repayment Contract), and which specifically devises a $68,000 promissory note to both Woody’s daughter and husband (Am. Compl. Ex. 2), Woody’s husband, the executor, “was aware of the Repayment Contract and of ... Woody’s intent to give the Repayment Contract to her daughter, Courtney Faison,” (Am. Compl. ¶ 9) who is the plaintiff in this case and is a citizen and resident of North Carolina. Am. Compl. ¶ 1. The Repayment Contract document was thus given to the plaintiff as part of the residue of Woody’s estate, (Am. Compl. ¶¶ 8, 15) and was distributed to the plaintiff no later than April 5, 2005, when the estate was closed, though the Repayment Contract had not been listed in the final inventory that was filed for the estate. Am. Compl. ¶¶ 10-12, 15. The plaintiff then lost the original Repayment Contract document over a year later in 2007, but had made a copy of the document. Am. Compl. ¶ 11.
Around May 2003, the month immediately following Woody’s death, while the estate was still open, the defendants began making payments to the plaintiff according to the terms of the Repayment Contract until January 2004. Am. Compl. ¶ 16. Sometime thereafter, the plaintiff contacted the defendants through an attorney, and on July 1, 2004, defendant Virginia Hughson “acknowledged the debt,”1 and the defendants *98then sent four $100 payments to the plaintiff. The payments were from an account belonging to defendant Virginia Hughson, but some of the checks were signed by defendant Mary Hughson. The fourth and last of the $100 payments received by the plaintiff was dated December 6, 2004. Am. Compl. ¶ 17. After that payment, the defendants refused to pay the plaintiff according to the Repayment Contract, despite request. Am. Compl. ¶ 18.
About five months after the defendants’ last payment, a final account of the estate was submitted to the Superior Court for Orange County, North Carolina, around April 5 or 6, 2005, and the estate was closed and Woody’s husband was discharged as executor. Am. Compl. ¶¶ 10-11, Ex. 3. Since the Repayment Contract had never been listed as an asset of the estate on the final inventory that had been submitted, Woody’s husband reopened the estate on March 4, 2009, in order to list the Repayment Contract as an asset and to note its distribution to the plaintiff. Am. Compl. ¶ 12, Ex. 4. On that same day, Woody’s husband, acting as executor, also “assigned” a copy of the Repayment Contract to the plaintiff (according to the wording of the Amended Complaint; but the executor’s wording on the Repayment Contract document itself claims to “endorse this Promissory Note to [the plaintiff]”). Am. Compl. ¶ 12, Ex. 5. Also on that same day, the estate was closed and Woody’s husband was again discharged as the executor. Am. Compl. ¶ 12, Ex. 4.
The plaintiff now seeks damages for a breach of contract in the amount of $22,200 “as a direct and proximate result of the defendants’ failure to make payments pursuant to the terms of the Repayment Contract,” plus pre-judgment and post-judgment interest and costs. Am. Compl. ¶ 22.
The plaintiff filed her Complaint on December 19, 2008, which has now been amended after this Court sustained a Demurrer to the Complaint, granting leave to amend, and took the defendants’ Plea in Bar, Motion to Dismiss, and Motion to Strike Affidavit under advisement in its April 1, 2009, Order. The defendants have now filed a Demurrer, Plea in Bar, and Motion to Dismiss to the Amended Complaint, and a hearing was held on these matters on June 10, 2009.
Analysis
“A demurrer admits the truth of all properly pleaded material facts. ‘All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer *99does not admit the correctness of the pleader’s conclusions of law’.” Dodge v. Trustees of Randolph-Macon Woman’s College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373, 374 (1988)). Further, “a court considering a demurrer may ignore a party’s factual allegations contradicted by the terms of authentic, unambiguous documents that properly are a part of the pleadings.” Ward’s Equip. v. New Holland N. Am., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997). Here, since the Repayment Contract document and other documents are made exhibits to the Amended Complaint, those documents are made a part of the pleadings by Rule l:4(i). Va. Sup. Ct. R. l:4(i) (“The mention in a pleading of an accompanying exhibit shall, of itself and without more, make such exhibit a part of the pleading.”).
A. Note or Contract
Terming a document a “contract” or a “note” is a conclusion of law. In their Demurrer, the defendants argue that the Repayment Contract is not a negotiable instrument or a promissory note. Dem. to Am. Compl. ¶¶ 8-9. Indeed, although the executor of Woody’s estate treated the Repayment Contract as a note when he sought to “endorse this Promissory Note to [the plaintiff],” (Am. Compl. Ex. 5) the plaintiff states in her brief that “(the plaintiff’s] Amended Complaint does not even allege that the Repayment Contract is a negotiable instrument.” Pl.’s Mem. in Opp’n to Defs.’ Dem. and Plea 6.
A “negotiable instrument” is “an unconditional promise or order to pay a fixed amount of money.” Va. Code § 8.3A-104(a). A “promise” is “a written undertaking to pay money signed by the person undertaking to pay. An acknowledgment of an obligation by the obligor is not a promise unless the obligor also undertakes to pay the obligation.'1'’ Va. Code § 8.3A-103(a)(9) (emphasis added). It cannot be said from the words of the Repayment Contract that it is “a written undertaking to pay” back the loan. The Repayment Contract merely states; “Date of Loan: October 1991 in the amount of $25,000.00 payable $300.00 per month. Estimated year of Maturity 2012.” Am. Compl. Ex. 1. Thus, the Repayment Contract only gives information about the loan and repayment, which is what the title of the document, “Personal Loan Information,” implies is its purpose. The defendants acknowledged this information and obligation by signing and notarizing the document. The statutory definition of “promise” makes clear that such an acknowledgment without an undertaking to pay the *100obligation is not a promise. Therefore, the Repayment Contract cannot be a negotiable instrument.
Neither can the Repayment Contract be a contract since there is no agreement being made. Again, the document merely acknowledges information about a loan that was made more than ten years before its signing.
B. Statute of Frauds
Nevertheless, the plaintiff has sufficiently alleged facts to infer that there was at least an oral agreement by the defendants to pay back the amount loaned to them and that the right to repayment of the loan was assigned to the plaintiff, as shown by the defendants’ immediately making payments to her after Woody’s death and again making payments to her after having been contacted by an attorney on her behalf. The Repayment Contract document then is a memorandum of that oral agreement.
Because there is nothing alleged that qualifies as a written contract for the loan, the defendants argue that the plaintiff’s action is barred by the statute of frauds under Va. Code § 11-2(9),2 which states:
Unless a promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note thereof, is in writing and signed by the party to be charged or his agent, no action shall be brought... [u]pon any agreement or promise to lend money or extend credit in an aggregate amount of $25,000 or more. The consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) by other evidence.
However, the defendants’ argument fails, because although there is no written contract and the Repayment Contract does not constitute one, the Repayment Contract is a memorandum in writing and signed by both of the defendants. “The memorandum required by Va. Code § 11-2 need not constitute or embody the contract; it need only state the essential terms of the agreement.” Troyer v. Troyer, 231 Va. 90, 94, 341 S.E.2d 182, 185 (1986).
*101A memorandum, in order to make enforceable a contract within the Statute [of Frauds], may be any document or writing, formal or informal, signed by the party to be charged ... which states with reasonable certainty,
(a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and
(b) the land, goods, or other subject-matter to which the contract relates, and
(c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.
Horner v. Holt, 187 Va. 715, 724, 47 S.E.2d 365, 369 (1948) (quoting Restatement of Contracts, vol. 1, § 207).
Here, the Repayment Contract states with reasonable certainty the essential terms of the agreement, the lender and the borrowers, the principal amount of the loan made, and how and when the loan is to be repaid. Further:
[generally speaking, the purpose with which a memorandum is prepared is immaterial, and it will suffice although it was not intended to evidence the contract or to comply with the statute [of frauds]. ... However, by the clear weight of authority, the signature must be made or adopted with the declared or apparent intent of authenticating the writing relied upon as a memorandum, and not by way of mere recital or identification.
Id. at 725, 47 S.E.2d at 370 (quoting 49 Am. Jur., Statute of Frauds, “Signature,” § 381).
It is clear from the content of the Repayment Contract document that the defendants intended to authenticate the document when they signed it and had it notarized. Therefore, the plaintiffs action is not barred by the statute of frauds.
C. Statute of Limitations
The defendants further argue that, since this action is based on an oral contract, it is barred by the statute of limitations under Va. Code *102§ 8.01-246, (Dem. to Am. Compl. ¶¶ 11-12, Defs.’ Mem. in Supp of Dem. 4) which bars suits on oral contracts three years after the cause of action accrues. This Plea in Bar by the defendants will be taken under advisement until the terms of the oral contract are established in order to find out at what time(s) the contract was breached. Although the plaintiff claims that the defendants breached the agreement by failing to send payments beginning in January 2005, (Am. Compl. ¶ 21) the other facts alleged indicate that the defendants first breached the agreement a year earlier in January 2004 when they first stopped making the $300 monthly payments. Am. Compl. ¶ 16. However, it appears from the allegations and from the Repayment Contract document that the defendants were to repay the loan in installments. If that is so, then a new cause of action would have accrued for each installment not paid or not paid in full,3 and the plaintiff would be able to sustain an action against the defendants for any installment payment not paid or not paid in full from three years before the date of filing her Complaint, which would be from December 19, 2005. Therefore, it cannot be said at this time that the plaintiff’s entire action is barred by the statute of limitations.
D. Standing; Jurisdiction
The defendants also argue that this is an action to recover personal property for Woody’s estate, (Dem. to Am. Compl. ¶¶ 3-5) and thus: (1) the plaintiff, not being the personal representative of Woody, has no *103standing to bring this action;4 (2) the personal representative of Woody, who would be a necessary party to such a suit, is not before the court, and the plaintiff has not pleaded facts to allege that this Court has any jurisdiction over the personal representative;5 and (3) this Court has no jurisdiction over this matter to recover personal property for the benefit of Woody’s estate because Woody’s will was probated in Orange County, North Carolina. Dem. to Am. Compl. ¶ 5.
These arguments fail because this is not an action to recover personal property for Woody’s estate. This is an action by an alleged assignee to enforce her right to recover the repayment of a loan, and, thus, the plaintiff, being the assignee, has standing to bring this suit under Va. Code § 8.01-13. “The assignee or beneficial owner of any bond, note, writing, or other chose in action, not negotiable may maintain thereon in his own name any action which the original obligee, payee, or contracting party might have brought. . . .” The personal representative of Woody’s estate is not a necessary party because the right to repayment has been assigned to the plaintiff and, therefore, the estate no longer has any interest in it. And lastly, the Court does not need jurisdiction over Woody’s will in order to hear this action to enforce a contract on behalf of the plaintiff against the defendants.
The defendants further argue that the plaintiff is not a holder in due course of the Repayment Contract and, therefore, cannot enforce the Repayment Contract since it was not properly indorsed to her by Woody’s executor. Dem. to Am. Compl. ¶¶ 6-10. But this argument only applies if the Repayment Contract were a promissory note, which it is not. The defendants also argue that the estate could not have been reopened in March 2009 to convey the Repayment Contract to the plaintiff. Dem. to Am. Compl. ¶ 9; Defs.’ Mem. in Supp. of Dem. 3. But since the Repayment Contract document is not the contract itself and since the right to repayment of the loan is alleged to have been assigned to the plaintiff when the estate was first opened, this also is not an issue. The plaintiff has sufficiently alleged that the right to repayment of the loan was assigned to her, noting that the defendants had made several payments to her according to the terms of the agreement immediately after Woody’s death and then made more payments to her after having been contacted by her attorney about the debt.
*104The defendants then argue that the Repayment Contract is not enforceable because it is not definite and certain as to its terms and requirements. Dem. to Am. Compl. ¶ 11. But again, the Repayment Contract is not the contract itself, but is a memorandum of the contract, and, as discussed above, is sufficiently definite as such. “[T]he memorandum relied on need not itself constitute a contract. It is the underlying oral contract of which the memorandum is an accurate statement which is enforced.” Fanney v. Virginia Inv. & Mortg. Corp., 200 Va. 642, 651, 107 S.E.2d 414, 420 (1959). Further, for a contract to be enforceable, “reasonable certainty is all that is required” as long as the agreement is “sufficiently definite to enable a court to give it an exact meaning, and ... obligate[s] the contracting parties to matters definitely ascertained or ascertainable.” Smith v. Farrell, 199 Va. 121, 128, 98 S.E.2d 3, 7 (1957) (quoting 4 M.J., Contracts, § 27). That standard is met here from the facts alleged.
The law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances. This is especially true where there has been partial performance.
Reid v. Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000) (quoting High Knob, Inc. v. Allen, 205 Va. 503, 507-08, 138 S.E.2d 49, 53 (1964)). And here, there has been partial performance.
The defendants also assert that the Repayment Contract is not enforceable because “[a]n agreement by one to do what he is already legally bound to do is not a good consideration for a promise made to him. The general rule is that a new promise without other consideration than the performance of an existing contract in accordance with its terms is a naked promise without legal consideration therefore and unenforceable.” Defs.’ Mem. in Supp. of Dem. 4 {quoting 4A M.J., Contracts, § 34 (footnotes omitted)) (emphasis added). Again though, the Repayment Contract document is not the contract itself, but only a memorandum of the original agreement, and thus there was no new promise made to the defendants for which the defendants’ already existing obligation to repay the loan was *105given as consideration. And even if that were the case, it would be the defendants who could not sustain an action for breach of the new promise due to want of consideration on their part; the plaintiff, on the other hand, would still be able bring an action against the defendants for the breach of their already existing obligation. See Seward v. New York Life Ins. Co., 154 Va. 154, 167-69, 152 S.E. 346, 350 (1930); 4A M.J., Contracts, § 34 and n. 19 (citing Seward, 154 Va. 154, 152 S.E. 346). Therefore, this argument fails as well.
Conclusion
For the reasons stated, the Court overrules the defendants’ Demurrer and Plea in Bar as to the statute of frauds, and takes under advisement the defendants’ Plea in Bar as to the statute of limitations and Motion to Dismiss on that ground until the terms of the oral contract and the date(s) of breach are established.
There is no allegation that there was a written acknowledgement that would fall under Code § 8.01-229(G).
Dem. to Am. Compl. ¶ 12; Defs.’ Mem. in Supp. of Dem. 4.
Bizmark, Inc. v. Indus. Gas & Supply Co., 358 F. Supp. 2d 518, 521 (W.D. Va. 2005) (“It is settled that, upon the failure to make an installment payment, a cause of action for that installment accrues immediately and the statute of limitations begins to run.” (citing Williams v. Matthews, 103 Va. 180, 48 S.E. 861, 862 (1904); Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Calif., 522 U.S. 192, 208, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1997))); MFS Int’l, Inc. v. Int’l Telecom, Ltd., 50 F. Supp. 2d 517, 524-26 (E.D. Va. 1999) (In a contract where one has an obligation to make installment payments, “a separate cause of action arises on the date each payment is missed and the statute of limitations thus runs against each installment from the time that it becomes due.” (citing MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1100-01 (3d Cir. 1995))), Am Inn, L.P. v. SunTrust Banks, Inc., 28 Fed. Appx. 316, 319-21 and n. 3 (4th Cir. 2002) (per curiam) (holding that an installment contract is a divisible contract, and thus “for claims based on an installment contract, a cause of action accrues, and the statute of limitations begins to run, when each installment becomes due”).
Dem. to Am. Compl. ¶¶ 1-3.
Dem. to Am. Compl. ¶ 4. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4126546/ | Order entered February 13, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01128-CR
JUSTIN HILLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F05-72778-J
ORDER
Based on the Court’s opinion on this date, we DIRECT the Clerk to issue the mandate in
this appeal INSTANTER.
/s/ CRAIG STODDART
JUSTICE | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124958/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 8, 2016
The Honorable Angie Chen Button Opinion No. KP-0106
Chair, Committee on Economic and
Small Business Development Re: Whether and to what extent limitations
Texas House of Representatives exist on the Texas Facilities Commission's
Post Office Box 2910 ability to renew leases for space under
Austin, Texas 78768-2910 section 2167.055 of the Government Code
(RQ-0095-KP)
Dear Representative Button:
You ask whether and to what extent limitations exist on the Texas Facilities Commission's
ability to renew leases for space under section 2167 .055 of the Government Code. 1 You state that
the Legislature is exploring ways to lower operating costs for office space for state agencies outside
of Austin and the Capitol Complex. Request Letter at 1. You ask specifically about obtaining
agency office space through long-term office projects with private developers. Id. You note that
under section 2167.055 of the Government Code, the Texas Facilities Commission (the
"Commission") may enter into leases for up to ten years with renewal options. Id. You ask
whether there is "any limitation on how early the option can be executed and if multiple options
may be executed concurrently." Id.
The Commission is a state agency authorized to lease space from non-state entities for
tenant agencies. TEX. Gov'T CODE§§ 2167.0011, .002, .007, .052, .055. The Commission may
do so only if "(1) state-owned space is not otherwise available to the agency; and (2) the agency
has verified it has money available to pay for the lease." Id. § 2167.002(a). In a lease contract
under section 2167.055, the State, acting through the Commission, is the lessee, and the
Commission's obligation to accept leased space is binding on the Commission upon execution of
the lease contract. Id. § 2167.055(a), (f). Such a lease contract may "(1) provide for an original
term that does not exceed 10 years; and (2) include options to renew for as many terms that do not
1
See Letter from Honorable Angie Chen Button, Chair, House Comm. on Econ. & Small Bus. Admin., to
Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 6, 2016), https://www.texasattomeygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
The Honorable Angie Chen Button - Page 2 (KP-0106)
exceed 10 years each as the commission considers to be in the state's best interest." Id.
§ 2167.055(c). 2
As the Texas Supreme Court has observed, "[t]he State has the right to contract, unless
restricted or limited by the Constitution.· The subjects of contract, the length of term for which a
contract may be made, and the general policy relating to contracts, are clearly within the power of
the Legislature." Tex. Nat'! Guard Armory Bd v. McCraw, 126 S.W.2d 627, 637 (Tex. 1939).
We consider first your question of whether there are any limitations on how early a renewal option
may be exercised under section 2167.055. Request Letter at 1.
A lessee's right to exercise an option to renew the lease is generally governed by the
option's provisions and, therefore, the existence of any limitations will depend in part on the terms
of the renewal option. See Zeidman v. Davis, 342 S.W.2d 555, 558 (Tex. 1961); see also
Mohammed v. D. 1050 W Rankin, Inc., 464 S.W.3d 737, 745 (Tex. App.-Houston [1st Dist.]
2014, no pet.) ("A party to an option contract may enforce that option by strict compliance with
the terms of the option."). Typically, a lease agreement will require the lessee to take steps to
exercise a renewal option in advance of the date the primary term expires. See, e.g., Zeidman, 342
S.W.2d at 556-58 (requiring notice six months in advance of the end of the primary term). 3 Section
2167.055 authorizes a primary term that does not exceed ten years and renewal terms that do not
exceed ten years, but it does not address when the Commission may exercise a lease option. TEX.
Gov'T CODE § 2167.055. We are not aware of any statutory or common-law limitation on how
early an option may be exercised if authorized by a lease option's provisions. 4
Your second question is whether multiple renewal options may be exercised concurrently.
Request Letter at 1. Subsection 2167.055(c) expressly authorizes multiple renewal options but
does not address whether the Commission may at one time exercise two or more renewal options.
TEX. Gov'T CODE § 2167.055(c). We are not aware of any statutory or common-law principle
that would generally preclude exercising the options at the same time, if the lease provisions so
allow. But subsection 2167.055(c) specifically states that each renewal option may not exceed ten
years. See id. A lease provision that, for example, allows the Commission to simultaneously
exercise two ten-year options is essentially a twenty-year option that is not permitted by
2 Partiesto a lease that does not contain a renewal option may renew the lease "under terms to which all parties
to the contract agree." TEX. Gov'T CODE§ 2167.055(d).
3
See also Brief from Harvey Hilderbran, Exec. Dir., Tex. Facilities Comm'n, to Virginia K. Hoelscher, Chair,
Op. Comm., Office of the Att'y Gen. at 2-3 n.4 (Feb. 17, 2016) ("TFC Brief') (stating that the Commission's standard
lease contains a provision requiring the lessee to give "written notice of intention to exercise [an] option at least 180
days prior to expiration of the lease").
4 We assume your question contemplates a lease option agreement in which the primary term and the renewal
term remain distinct. We do not suggest that section 2167.055 allows the parties to simply convert their lease to a
primary term exceeding ten years.
The Honorable Angie Chen Button - Page 3 (KP-0106)
subsection (c). Thus, a court would likely conclude that options may be exercised concurrently
only if their terms in the aggregate do not exceed ten years. 5
5
Structuring a long-term lease requires consideration of constitutional provisions that limit the State's
authority to incur contractual obligations, such as the provisions prohibiting the creation of state debt and limiting
appropriations to no more than two years. See TEX. CONST. art. III, § 49 (prohibiting the creation of state debt), art.
VIII,§ 6 (prohibiting appropriations beyond two years); see generally Tex. Nat'! Guard Armory Bd, 126 S.W.2d at
63 7 (noting that the duration of a state contract may raise potential constitutional issues but stating that"[ o ]bligations
that run current with revenues are not debts within the contemplation of the Constitution"). The Commission must
ensure that the State's leases conform to these constitutional limitations whether the lease is in the primary term or a
renewal term. See TEX. Gov'T CODE§ 2167.055(e) (requiring any lease be made "contingent on the availability of
money appropriated by the legislature to pay for the lease"); TFC Brief at 2-3 n.4 (explaining that the Commission's
standard lease provisions specifically state that the lease is "subject to the provisions of the Texas Constitution," make
the lease "contingent upon the continuation of the availability of money appropriated by the legislature," and grant
the Commission the right to assign, sublet, or terminate the lease as required in certain circumstances).
The Honorable Angie Chen Button - Page 4 (KP-0106)
SUMMARY
Section 2167.055(e) of the Government Code does not limit
how early the Texas Facilities Commission may exercise a lease
renewal option nor does it address whether the Commission may
exercise multiple renewal options at the same time. A court would
likely conclude that the Commission may concurrently exercise
more than one renewal option in a lease provided that the terms of
the options in the aggregate do not exceed ten years.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126638/ | 15-1164-cv
Flo & Eddie, Inc. v. Sirius XM Radio, Inc.
1
2 UNITED STATES COURT OF APPEALS
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2015
6
7 Argued: February 2, 2016
8
9 Question Certified: April 13, 2016
10
11 Certified Question Answered: December 20, 2016
12
13 Decided: February 16, 2017
14
15 Docket No. 15-1164-cv
16
17
18 FLO & EDDIE, INC., a California Corporation,
19 individually and on behalf of all others similarly situated,
20
21 Plaintiff-Appellee,
22
23 – v. –
24
25 SIRIUS XM RADIO, INC., a Delaware Corporation,
26
27 Defendant-Appellant,
28
29 DOES, 1 THROUGH 10,
30
31 Defendants.
32
33
34 Before: CALABRESI, CHIN, and CARNEY, Circuit Judges.
35
36 Defendant-Appellant Sirius XM Radio, Inc., appeals from the November 14, 2014
37 and December 12, 2014 orders of the United States District Court for the Southern District
38 of New York (McMahon, J.) denying its motions, respectively, for summary judgment and
39 for reconsideration in connection with Plaintiff-Appellee Flo & Eddie, Inc.’s copyright
40 infringement suit. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5784 (CM), 2014 WL
41 7178134 (S.D.N.Y. Dec. 12, 2014) (denial of motion for reconsideration); Flo & Eddie, Inc. v.
42 Sirius XM Radio, Inc., 62 F. Supp. 3d 325 (S.D.N.Y. 2014) (denial of motion for summary
43 judgment). We previously concluded that the appeal raised a significant and unresolved
44 issue of New York law that is determinative of this appeal: Is there a right of public
1
1 performance for creators of pre-1972 sound recordings under New York law and, if so, what
2 is the nature and scope of that right?
3 We certified this question to the New York Court of Appeals. Flo & Eddie, Inc. v.
4 Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016). The Court of Appeals accepted
5 certification and responded that New York common law does not recognize a right of public
6 performance for creators of pre-1972 sound recordings. Flo & Eddie, Inc. v. Sirius XM Radio,
7 Inc., 2016 WL 7349183 (N.Y. Dec. 20, 2016).
8 In light of this ruling, we REVERSE the district court’s denial of Appellant’s motion
9 for summary judgment and REMAND with instructions to grant Appellant’s motion for
10 summary judgment and to dismiss the case with prejudice.
11
12
13 HARVEY GELLER (Henry Gradstein, Maryann R.
14 Marzano, on the brief), GRADSTEIN & MARZANO, P.C.,
15 Los Angeles, CA; (Evan S. Cohen, on the brief), Los
16 Angeles, CA; Michael Gervais, Arun S. Subramanian,
17 SUSMAN GODFREY LLP, New York, NY; Robert
18 Rimberg, GOLDBERG RIMBERG & WEG PLLC, for
19 Plaintiff-Appellee
20
21 DANIEL M. PETROCELLI (Cassandra L. Seto, on the
22 brief), O’MELVENY & MYERS LLP, Los Angeles, CA;
23 (Johnathan D. Hacker, on the brief), O’MELVENY &
24 MYERS LLP, Washington, DC; for Defendant-Appellant
25
26 BRANDON BUTLER, AMERICAN UNIVERSITY
27 WASHINGTON COLLEGE OF LAW, Washington, DC, for
28 Amici Curiae Law Professors Gary Pulsinelli, Julie Ross,
29 and Peter Jaszi, in support of Defendant-Appellant
30
31 EUGENE VOLOKH, UCLA SCHOOL OF LAW, Los
32 Angeles, CA, for Amici Curiae Howard Abrams, Brandon
33 Butler, Michael Carrier, Michael Carroll, Ralph
34 Clifford, Brian Frye, William Gallagher, Eric Goldman,
35 James Grimmelmann, Yvette Liebesman, Brian Love,
36 Tyler Ochoa, David Olson, David Post, Michael Risch,
37 Matthew Sag, Rebecca Tushnet, and David Welkowitz,
38 in support of Defendant-Appellant
39
40 MITCHELL STOLTZ, VERA RANIERI, Electronic
41 Frontier Foundation, San Francisco, CA, for Amicus
2
1 Curiae Electronic Frontier Foundation, in support of
2 Defendant-Appellant
3
4 R. BRUCE RICH, BENJAMIN E. MARKS,
5 GREGORY SILBERT, TODD LARSON, KAMI
6 LIZARRAGA, WEIL, GOTSHAL & MANGES LLP, New
7 York, NY, for Amicus Curiae Pandora Media, Inc., in
8 support of Defendant-Appellant
9
10 SHERWIN SIY, JOHN BERGMAYER, RAZA
11 PANJWANI, Public Knowledge, Washington, DC, for
12 Amicus Curiae Public Knowledge, in support of
13 Defendant-Appellant
14
15 STEPHEN B. KINNAIRD, PAUL HASTINGS LLP,
16 Washington, DC; RICK KAPLAN, National
17 Association of Broadcasters, Washington, DC; for
18 Amicus Curiae National Association of Broadcasters, in
19 support of Defendant-Appellant
20
21 ADAM R. BIALEK, STEPHEN J. BARRETT,
22 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP,
23 New York, NY; DAVID L. DONOVAN, New York
24 State Broadcasters Association, Inc., Albany, NY; for
25 Amicus Curiae New York State Broadcasters Association,
26 Inc., in support of Defendant-Appellant
27
28
29
30 PER CURIAM:
31 On September 3, 2013, Flo & Eddie, Inc. (“Appellee”), a California corporation that
32 asserts it owns the recordings of “The Turtles,” a well-known rock band with a string of hits
33 in the 1960s, sued Sirius XM Radio, Inc. (“Appellant”), a Delaware corporation that is the
34 largest radio and internet-radio broadcaster in the United States. The suit was brought on
35 behalf of itself and a class of owners of pre-1972 recordings; it asserted claims for common-
36 law copyright infringement and unfair competition under New York law. In particular,
37 Appellee alleged that Appellant infringed Appellee’s copyright in The Turtles’ recordings by
3
1 broadcasting and making internal reproductions of the recordings (e.g., library, buffer and
2 cache copies) to facilitate its broadcasts.
3 In due course, Appellant moved for summary judgment on two grounds. Appellant
4 contended first that there is no public-performance right in pre-1972 recordings under New
5 York copyright law, and hence that its internal reproductions of these recordings were
6 permissible fair use. Second, Appellant argued that a state law public performance right, if
7 recognized, would be barred by the Dormant Commerce Clause. On November 14, 2014,
8 the District Court (McMahon, J.) denied this motion. Flo & Eddie, Inc. v. Sirius XM Radio,
9 Inc., 62 F. Supp. 3d 325, 330 (S.D.N.Y. 2014).
10 On the first issue, the court concluded that New York does afford a common-law
11 right of public performance to copyright holders, and that Appellant’s internal reproductions
12 were correspondingly not fair use. Id. at 344-46. On the second issue, the court found that
13 the recognition of a performance right did not implicate the Dormant Commerce Clause. It
14 noted that, pursuant to Sherlock v. Alling, 93 U.S. (3 Otto) 99 (1876), such a right did not
15 constitute a “regulation” of commerce. Flo & Eddie, Inc., 62 F. Supp. 3d at 351–53.
16 Soon after, Appellant, with new counsel, filed a motion for reconsideration of the
17 November 14, 2014 order. In the alternative, it asked the District Court to certify its
18 summary judgment order for interlocutory appeal. The District Court denied Appellant’s
19 motion for reconsideration, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5784, 2014
20 WL 7178134 (S.D.N.Y. Dec. 12, 2014), but did certify both the summary judgment and
21 reconsideration orders for interlocutory appeal, Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No.
22 13-cv-5784, 2015 WL 585641 (S.D.N.Y. Feb. 10, 2015).
4
1 Appellant then petitioned us to permit the interlocutory appeal, which we did. Flo &
2 Eddie, Inc. v. Sirius XM Radio, Inc., No. 15-cv-497, 2015 WL 3478159 (2d Cir. May 27,
3 2015). After extensive briefing and oral argument, we concluded that the appeal raised a
4 significant and unresolved issue of New York law that is determinative of this appeal: Is
5 there a right of public performance for creators of pre-1972 sound recordings under New
6 York law and, if so, what is the nature and scope of that right?
7 Accordingly, we certified this question to the New York Court of Appeals. Flo &
8 Eddie, Inc., 821 F.3d 265. The Court of Appeals accepted certification, and on December
9 20, 2016, responded that New York common law does not recognize a right of public
10 performance for creators of pre-1972 sound recordings. Flo & Eddie, Inc. v. Sirius XM Radio,
11 Inc., 2016 WL 7349183 (N.Y. Dec. 20, 2016).
12 Following the Court of Appeals’ answer, we ordered the parties to submit letter briefs
13 addressing the effect of the Court of Appeals’ decision on the appeal before this court. In its
14 letter brief, Appellee argued that the Court of Appeals “did not resolve [Appellant’s] liability
15 for unauthorized copying of [Appellee’s] recordings and engaging in unfair competition by
16 publicly performing those copies for profit, which the District Court had identified as
17 separate and independent grounds for finding [Appellant] liable.” Letter Brief for Appellee,
18 Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016) (No. 15-1164), ECF
19 No. 215.
20 In our opinion certifying the question to the Court of Appeals, however, we noted
21 and held that
22 The fair-use analysis applicable to this copying . . . is bound up
23 with whether the ultimate use of the internal copies is
24 permissible. As a result, the certified question is determinative of
25 Appellee’s copying claims . . . . Similarly, Appellee’s unfair-
5
1 competition claim depends upon the resolution of the certified
2 question.
3
4 Flo & Eddie, Inc., 821 F.3d at 270 n.4 (emphasis added).
5 The answer to the certified question being determinative of the other claims, we
6 REVERSE the district court’s denial of Appellant’s motion for summary judgment and
7 REMAND to that court with instructions to grant Appellant’s motion for summary
8 judgment and to dismiss the case with prejudice.
6 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126493/ | Filed 2/15/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A143378
v.
JON ERIC CLARK, (San Mateo County
Super. Ct. No. SC044395)
Defendant and Appellant.
In 1997, Jon Eric Clark was convicted of indecent exposure and sentenced to a
prison term of 26 years to life under the “three strikes” law. In 2014, after adoption of
the Three Strikes Reform Act (Reform Act), he petitioned for resentencing. This appeal
is from the denial of that petition. Appellant contends the trial court erred in failing to
conduct a hearing and rule on his motion to strike one of his prior convictions on the
ground that it was constitutionally invalid and in ruling it lacked authority to dismiss the
prior conviction in the interests of justice. He additionally contends the court’s implied
finding that he was ineligible for resentencing due to a prior conviction under Penal Code
section 288 violated his constitutional right to equal protection because a similarly
situated defendant with a prior conviction for the more serious offense of violating Penal
Code section 288.7 would be eligible for resentencing. We affirm.
STATEMENT OF THE CASE AND FACTS
In August 1996, a customer eating at a McDonald’s observed appellant sitting by
himself at another table, exposing his erect penis by pulling up the leg of his shorts.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.
1
Appellant was charged with indecent exposure (Pen. Code, § 314.1),1 by amended
information filed on May 6, 1997; the offense was charged as a felony due to prior
convictions of the same offense in 1971, 1973 and 1974, and prior convictions of lewd
and lascivious conduct (§ 288, subd. (a)) in 1974 and 1985. The two section 288
convictions were alleged as strikes under section 1170.12, subdivision (c)(2), and the
1985 conviction was additionally alleged as a prior prison term under section 667.5,
subdivision (b). Appellant admitted having been convicted of the priors alleged in the
section 314.1 charge for purposes of the present offense being charged as a felony.
Appellant was found guilty of the present offense after a jury trial, and the court found
the alleged strike and prison term prior convictions true. The trial court denied
appellant’s motion to reduce his conviction to a misdemeanor and strike his prior strikes,
and sentenced him to a prison term of 26 years to life.
Appellant unsuccessfully appealed to this court (A081042) on grounds unrelated
to the issues now before us. He also filed a petition for writ of habeas corpus (A085538)
alleging that his 1974 prior conviction was constitutionally invalid in that the record of
his guilty plea did not show he was aware he was waiving his rights to jury trial, to
confront and cross examine witnesses and against self-incrimination (Boykin v. Alabama
(1969) 395 U.S. 238, 242-244; In re Tahl (1969) 1 Cal. 3d 122 (Tahl)),2 or that he was
aware he would have to register as a sex offender for life as a consequence of his plea.
1
All further statutory references will be to the Penal Code unless otherwise
specified.
2
“In Boykin v. Alabama[, supra,] 395 U.S. 238, the United States Supreme Court
held that even if a defendant is represented by an attorney, a court may not accept a guilty
plea from him until it determines both that he is aware of the constitutional rights waived
by pleading guilty—namely, the privilege against compulsory self-incrimination, the
right to trial by jury, and the right to confront his accusers—and that he has knowingly
and voluntarily chosen to waive those rights. Subsequently, in In re Tahl[, supra,] 1
Cal. 3d 122, 132, we interpreted the refusal of the majority in Boykin to presume waiver
of the three enumerated rights from a silent record to mean that the record must show on
its face that the defendant was made aware of his rights and that he expressly waived
them.” (People v. Sumstine (1984) 36 Cal. 3d 909, 914 (Sumstine).)
2
We denied the petition and the California Supreme Court denied a habeas petition filed in
that court.
In 2012, the California electorate adopted Proposition 36, the Reform Act as part
of which section 1170.126 was added to the Penal Code. Section 1170.126 provided for
the resentencing of individuals then serving three strike indeterminate prison terms for
offenses not defined as serious and/or violent felonies. (Prop. 36, § 6, approved Nov. 6,
2012, eff. Nov. 7, 2012.) In the specified circumstances, such individuals would instead
receive two-strike sentences. (§§ 1170.126, subd. (b), (e); 1170.12, subd. (c)(2)(C).) As
relevant here, persons with prior convictions for certain felonies, including section 288,
are not eligible for resentencing under section 1170.126. (§§ 1170.126, subd. (e)(3);
1170.12, subd. (c)(2)(C)(iv)(III).)
On July 8, 2014, appellant filed a petition for resentencing under section 1170.126,
alleging that his 1974 conviction was constitutionally invalid under Boykin and that his
prior section 288 convictions did not render him ineligible for resentencing because it
would violate his constitutional right to equal protection to find him ineligible based on
those convictions when a similarly situated person convicted of violating section 288.7, a
more serious offense, would not be found ineligible.
Opposing the petition, the district attorney argued that appellant was statutorily
ineligible for resentencing due to his prior section 288 convictions; the trial court had no
authority to consider the validity of the priors in a section 1170.126 proceeding; and there
was no equal protection violation. Alternatively, the district attorney argued the trial
court should exercise its discretion under section 1170.126, subdivision (g), to deny the
petition for resentencing. In support of its argument that section 1170.126 provided no
authority for the court to disregard the finality of prior judicial decisions in this case, the
district attorney provided the 1999 opinion of this court affirming the 1997 judgment and
denying the writ petition by which appellant previously challenged the 1974 conviction;
the Attorney General’s 1999 informal opposition to the writ petition; and the 1987
opinion of the Fifth District Court of Appeal affirming appellant’s 1985 section 288
3
conviction. The 1985 opinion, among other things, rejected appellant’s argument that the
1974 section 288 conviction should have been stricken under Boykin/Tahl.
Responding to the prosecutor’s arguments, appellant submitted documentation of
his discipline-free prison record and participation and positive performance in
rehabilitative programs, and of various health conditions including diabetes and heart
problems. Appellant also raised a new issue, asking the trial court to dismiss the case in
the interests of justice under section 1385, as appellant had already served 17 years in
prison for the 1997 offense, for which the maximum sentence was three years, and
Proposition 36 reflected the voters’ belief that individuals convicted of more serious
crimes than appellant’s should be released after serving only a two-strike sentence (in this
case, six years).
At the hearing on October 16, 2014, defense counsel argued there was evidence
that appellant was not advised of his rights when he entered the 1974 plea: Although
there was neither a plea form nor a transcript of the proceedings, the Certificate of the
Magistrate indicated that “advice of rights was waived so there wasn’t even a reading of
the advice of rights.” The declaration of the then-clerk for the superior court judge stated
that “there was not a giving of the advice of rights and a waiver of such a right to those
reaffirming their plea.” The declaration of current appellate counsel stated, based on his
experience as a public defender in Santa Clara County at the time, that prior to 1977,
when the determinate sentencing law took effect, there was not a practice of carefully
ensuring defendants were advised of and waived their rights, and plea forms were not
used. Trial counsel additionally argued at the hearing that although the 1974 prior was
challenged at the time of appellant’s 1985 conviction, counsel at that time was “ill
prepared” and did not have the Magistrate’s Certificate that had since been found.
Recognizing that it had declined to strike appellant’s priors at the time of trial and
there was no law on the question whether that issue could be revisited on a petition for
resentencing, the court denied the petition, explaining that “under the statute as it stands,
[appellant] is ineligible for resentencing. I don’t find the Equal Protection argument to be
compelling. [¶] I appreciate that the court has inherent powers with regard to [section]
4
1385, but I don’t think it was the intent of . . . both the drafters of the law and the public
in enacting the law that the court would simply skip ahead to the suitability portion and
ignore the eligibility portion of the law.”
Appellant filed a timely notice of appeal on October 21, 2014.
DISCUSSION
Prior to the adoption of Proposition 36, a defendant who had previously been
convicted of two or more serious or violent felonies was subject to an indeterminate
sentence of 25 years to life upon conviction of any new felony. (People v. Chubbuck
(2014) 231 Cal. App. 4th 737, 740 (Chubbuck); People v. White (2014) 223 Cal. App. 4th
512, 517 (White); People v. Superior Court (Kaulick) (2013) 215 Cal. App. 4th 1279, 1285
(Kaulick).) “The Reform Act prospectively changed the Three Strikes law by reserving
indeterminate life sentences for cases where the new offense is also a serious or violent
felony, unless the prosecution pleads and proves an enumerated disqualifying factor. In
all other cases, a recidivist defendant will be sentenced as a second strike offender, rather
than a third strike offender.” (Chubbuck, at pp. 740-741; Kaulick, at p. 1286; People v.
Yearwood (2013) 213 Cal. App. 4th 161, 167-168 (Yearwood).)
“The Reform Act also created a ‘ “post-conviction release proceeding” ’ whereby
a Three Strikes prisoner who is serving an ‘indeterminate life sentence’ for a crime that
was not a serious or violent felony—and who is not otherwise disqualified—may have
his or her sentence recalled and be resentenced as a second strike offender, unless the
court ‘determines that resentencing . . . would pose an unreasonable risk of danger to
public safety.’ (§ 1170.126, subds. (a), (f), (m); see Yearwood, supra, 213 Cal.App.4th at
p. 168.)” (Chubbuck, supra, 231 Cal.App.4th at p. 741; White, supra, 223 Cal.App.4th at
p. 517.)
Under section 1170.126, subdivision (e)(3), an inmate is not eligible for
resentencing if he or she has a prior conviction for any offense appearing in section 667,
subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). As relevant here,
the referenced offenses include a “lewd or lascivious act involving a child under 14 years
of age, in violation of Section 288.” (§ 1170.12, subdivision (c)(2)(C)(iv)(III).)
5
I.
Relying upon the principle that a criminal defendant’s punishment may not be
enhanced on the basis of a prior felony conviction obtained in violation of the defendant’s
constitutional rights (People v. Allen (1999) 21 Cal. 4th 424, 429 (Allen); Garcia v.
Superior Court (1997) 14 Cal. 4th 953, 959 (Garcia)), appellant argues that in
determining whether an inmate has a prior conviction that renders him or her ineligible
for resentencing, the trial court must determine not only whether such a prior conviction
exists but also whether it is constitutionally valid. His 1974 conviction, he maintains,
was not valid because his plea was taken in violation of his rights under Boykin/Tahl.
As indicated above, appellant unsuccessfully sought to have his prior convictions
stricken at his 1997 trial and, subsequently, unsuccessfully argued in a petition for writ of
habeas corpus that trial counsel was ineffective for failing to challenge the 1974 prior as
constitutionally invalid under Boykin/Tahl. Appellant now urges that he was denied a fair
hearing on the validity of the 1974 prior, first by his 1997 attorney’s failure to challenge
the prior and then by this court denying his habeas petition without issuing an order to
show cause, which appellant views as having deprived him of due process.
At the time of appellant’s writ petition, the question whether a defendant could
move to strike a prior conviction on Boykin/Tahl grounds in a current proceeding was
pending before the California Supreme Court, and appellant believes that this court
denied the petition because it expected the procedure to be disallowed. Although the
motion to strike procedure had been approved in this context by Sumstine, supra, 36
Cal. 3d 909, the viability of that decision had come into question after the United States
Supreme Court held that the federal Constitution does not authorize a motion to strike a
prior state felony conviction except on grounds of denial of the right to appointed counsel
(Gideon v. Wainright (1963) 372 U.S. 335) in the former proceeding (Custis v. United
States (1994) 511 U.S. 485 (Custis)), and the California Supreme Court held that a
defendant in a current prosecution for a noncapital offense may not use a motion to strike
to challenge a prior conviction on the ground of ineffective assistance of counsel.
(Garcia, supra, 14 Cal. 4th 953.) A few months after this court denied appellant’s habeas
6
petition, however, Allen held that Sumstine survived Custis, reaffirming that a
Boykin/Tahl challenge to a prior conviction could be raised by a motion to strike the prior
conviction. (Allen, supra, 21 Cal.4th at p. 427.) 3
Appellant suggests that various unpublished opinions issued in the time between
the Garcia and Allen decisions provide circumstantial evidence that this court viewed
Sumstine as no longer valid and therefore disallowed motions to strike that would require
evidentiary hearings to determine the validity of the prior. The decisions to which he
points relied on considerations of judicial efficiency to hold that where determination of
the validity of prior convictions would require an evidentiary hearing, the priors could not
be challenged in a current proceeding but only by petition for writ of habeas corpus.
Judicial efficiency was one of the bases for the decisions in Custis, which limited motions
to strike to claims of denial of the right to appointed counsel in the prior proceeding, and
Garcia, which prohibited use of motions to strike to challenge priors on grounds of
ineffective assistance of counsel: Unlike challenges to a prior conviction based on
complete denial of the right to counsel, which can easily be ascertained from the record
of the prior proceeding, a challenge on grounds of ineffective assistance of counsel would
often require a time-consuming and disruptive factual investigation. (Custis, supra, 511
U.S. at p. 496; Allen, supra, 21 Cal.4th at pp. 433-434; Garcia, supra, 14 Cal.4th at pp.
964-965.)4
3
Allen limited the use of motions to strike on Boykin grounds to prior convictions
suffered after Tahl, supra,1 Cal. 3d 122, which put trial courts “on notice that ‘the record
must contain on its face direct evidence that the accused was aware, or made aware, of
his right to confrontation, to a jury trial, and against self-incrimination, as well as the
nature of the charge and the consequences of his plea.’ ” (Allen, supra, 21 Cal.4th at
p. 443, quoting Tahl, at p. 132.)
4
As explained in Allen, supra, 21 Cal. 4th 424, the motion to strike procedure is
not constitutionally required but based on the California Supreme Court’s “assessment of
‘efficient judicial administration.’ ” (Id. at p. 430.) Rather than having to challenge a
prior felony conviction by means of habeas corpus after final judgment in the current
proceeding, “ ‘it is clearly in the interest of efficient judicial administration that attacks
upon the constitutional basis of prior convictions be disposed of at the earliest possible
opportunity, and we are therefore of the view that, if the issue is properly raised at or
7
Appellant’s speculation about the reason for this court’s denial of his 1999 habeas
petition does not provide a basis for finding the violation of due process he asserts. It is
speculation, nothing more. In opposing the petition, respondent offered various grounds for
denial, arguing not only that the pending decision in Allen might demonstrate the Boykin/Tahl
challenge could not be raised on a motion to strike, but also that appellant’s claim was barred
by his failure to justify a 25-year delay in seeking habeas corpus relief (especially since
appellant had challenged the validity of the 1974 prior by motion to strike in his 1985 case)
and by the previous rejection of the same challenge in appellant’s appeal from his 1985
conviction. Respondent also disputed the merits of the claimed invalidity.5 We decline
appellant’s invitation to speculate as to the reasoning behind the denial of the petition.6
prior to trial, it must be determined by the trial court.’ ” (Id. at pp. 429-430, quoting
People v. Coffey (1967) 67 Cal. 2d 204, 215.)
5
After noting that appellant’s challenge to the 1974 prior required him to show not
only a silent record but also an actual denial of rights—that he was unaware of the rights
he waived and direct consequences of the plea and would not have pleaded guilty if he
had been aware of them (People v. Cooper (1992) 7 Cal. App. 4th 593, 600)—respondent
challenged the credibility of the declaration in which appellant stated he was unaware of
the rights he was waiving in 1974 and would not have pleaded guilty if he had been
aware. Respondent pointed out that contrary to this declaration stating he had not been
advised of any of the constitutional rights he was waiving, when appellant moved to
strike the 1974 prior at his trial in 1985, he testified that he had been advised of some of
the rights he was waiving but not of his right against self-incrimination. Respondent also
pointed out that while appellant claimed he had not been advised that he would have to
register as a sex offender as a consequence of his plea, the record showed he had been
registering as a sex offender since 1970, and therefore was aware of this requirement; he
did not make this claim when he challenged the 1974 prior in 1985; and, as he was
already required to register as a sex offender, this consequence of the 1974 plea would
not have dissuaded him from pleading guilty (as a result of which plea four additional
counts were dismissed and he received probation). Respondent further argued appellant’s
claim that his attorney did not discuss with him the possibility of challenging the 1974
prior was not credible in light of the fact that he had challenged it in 1985.
6
Respondent suggests that appellant could have challenged the validity of the
1974 prior after Allen, was decided, despite his unsuccessful writ petition on the same
ground, because a material change in law will avoid the prohibition against successive
petitions. (See, In re Martinez (2009) 46 Cal. 4th 945, 956.) But Allen did not change the
law; it reaffirmed Sumstine, supra, 36 Cal. 3d 909.
8
Moreover, appellant’s argument begs the fundamental question, which is whether
the trial court had authority to consider a Boykin/Tahl challenge to the 1974 prior in the
context of a petition for resentencing under section 1170.126.7 In general, “ ‘a trial court
lacks jurisdiction to resentence a criminal defendant after execution of sentence has
begun.’ ” (People v. Turrin (2009) 176 Cal. App. 4th 1200, 1204, quoting People v.
Howard (1997) 16 Cal. 4th 1081, 1089.) The premise of appellant’s argument, as we
have said, is that a constitutionally invalid prior conviction cannot be used to enhance
punishment for a subsequent offense. (Allen, supra, 21 Cal.4th at p. 429; Garcia, supra,
14 Cal.4th at p. 959.) But a section 1170.126 proceeding is not a “plenary resentencing
proceeding” (People v. Bradford (2014) 227 Cal. App. 4th 1322, 1336 (Bradford)) and
cannot result in enhancement of a sentence. “A finding an inmate is not eligible for
resentencing under section 1170.126 does not increase or aggravate that individual’s
sentence; rather, it leaves him or her subject to the sentence originally imposed.” (People
v. Osuna (2014) 225 Cal. App. 4th 1020, 1040 (Osuna).) Section 1170.126 “merely
provides a limited mechanism within which the trial court may consider a reduction of
the sentence below the original term[,]” and “the potential reduction of the sentence is
narrowly circumscribed by the statute.” (Bradford, at p. 1336, italics added.) The time
for appellant to challenge the validity of the 1974 prior was when it was used to
aggravate his sentence in 1985 and in 1997, which he did, unsuccessfully. Nothing in
section 1170.126 authorizes a collateral attack on a prior strike conviction.
People v. Brown (2014) 230 Cal. App. 4th 1502 (Brown) is instructive. In that case,
the inmate seeking resentencing pursuant to section 1170.126 asked the trial court to
7
Just as appellant argues this court was wrong to deny the habeas petition in 1999,
he argues that the Fifth District Court of Appeal was wrong to reject the challenge to the
1974 prior on his appeal from his 1985 conviction. Putting aside the parties’ dispute as to
whether appellant forfeited this claim by not raising it in the trial court in the present
action—appellant maintains he is not raising a new issue, only responding to
respondent’s assertion of forfeiture by arguing that the prior determination regarding the
prior was flawed—appellant’s claim that the 1987 appellate decision was wrong also
begs the question whether a trial court has authority to entertain a collateral attack on a
prior conviction in a section 1170.126 proceeding.
9
exercise its discretion under section 1385 to strike the prior conviction that rendered him
ineligible for resentencing—an argument appellant makes as well.8 Noting the general
rule that a trial court lacks jurisdiction to resentence a defendant after execution of
sentence has begun, the Brown court found nothing in the text of Proposition 36 to
support the inmate’s argument that the court had authority to strike the prior. (Brown, at
pp. 1511-1513.) “Section 1170.126 grants a trial court the power to determine an
inmate’s eligibility to be resentenced under the Reform Act only if the inmate satisfies the
three criteria set out in subdivision (e) of the statute, as previously noted, and contains no
provision authorizing a trial court to disregard the required criteria. (§ 1170.126, subd.
(e).) Rather, the plain language of subdivision (e) clearly provides that an inmate must
first satisfy each criteria set out in subdivision (e) of section 1170.126 before he or she
can be resentenced under the Reform Act, and gives the trial court no discretion to depart
from the three-step requirement. In other words, if the inmate does not satisfy one or
more of the criteria, section 1170.126 grants the trial court no power to do anything but
deny the petition for recall of sentence.” (Brown, at pp. 1511-1512.)
Brown pointed out that section 1170.126, subdivision (f), gives the trial court
discretion to deny resentencing if it determines that an eligible prisoner would pose an
unreasonable risk of danger to public safety, but this discretion may be exercised “only
after an inmate satisfies the [eligibility] criteria set out in subdivision (e), and only in
determining whether granting that relief would pose an unreasonable risk of danger even
if the petitioner satisfies the criteria in subdivision (e).” (Brown, supra, 230 Cal.App.4th
at p. 1512.) By contrast to the discretionary authority granted in subdivision (f), “the
plain language of subdivision (e) of the statute authorizes no such discretionary power to
a trial court in deciding an inmate’s eligibility under the Reform Act.” (Brown, a
8
Section 1385 provides that “[t]he judge or magistrate may, either of his or her
own motion or upon the application of the prosecuting attorney, and in furtherance of
justice, order an action to be dismissed.” “[T]he power to dismiss an action includes the
lesser power to strike factual allegations relevant to sentencing, such as the allegation that
a defendant has prior felony convictions.” (People v. Superior Court (Romero) (1996) 13
Cal. 4th 497, 504.)
10
p. 1512.) After reviewing the ballot materials concerning Proposition 36, which stated
that “courts ‘conducting these resentencing hearings would first determine whether the
offender’s criminal history makes them eligible for resentencing’ ” and nowhere stated
“that a trial court has discretion to determine eligibility nothwithstanding the [eligibility]
criteria in subdivision (e) of section 1170.126,” Brown concluded that it is “clear the
electorate’s intent was not to allow a trial court to retain its section 1385 discretionary
authority when determining whether an inmate is eligible for resentencing under the
Reform Act.” (Brown, at p. 1514, quoting Voter Information Guide, Gen. Elec. (Nov. 6,
2012), analysis of Prop. 36, by Legis. Analyst, at p. 50 (Voter Information Guide), italics
in Brown.)
Similar reasoning applies where an inmate seeks to have a prior stricken for
purposes of determining eligibility for resentencing on the ground that the prior is
constitutionally invalid due to violation of his or her Boykin/Tahl rights. Section
1170.126 does not suggest a hearing is to be held on the question of a prisoner’s
eligibility for resentencing; it simply provides that “[u]pon receiving a petition for recall
of sentence under this section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e).” (§ 1170.126, subd. (f).) As relevant here, those criteria
include the requirement that the inmate “has no prior convictions” for any of the specified
offenses. (§ 1170.126, subd. (e)(3).) This language focuses on the fact of the prior
conviction without suggesting its validity is subject to challenge. (See Custis, supra, 511
U.S. at pp. 490-491.)9
9
In Custis, the court rejected the argument that the Armed Career Criminal Act
(ACCA) (18 U.S.C. § 924(e)), permits collateral attack on a prior conviction in a federal
sentencing proceeding in part because of the absence of textual support: “The ACCA
provides an enhanced sentence for any person who unlawfully possesses a firearm in
violation of 18 U.S.C. § 922(g) and ‘has three previous convictions by any court referred
to in section 922(g)(1) of this title for a violent felony or a serious drug offense . . . .’
Section 924(e) applies whenever a defendant is found to have suffered ‘three previous
convictions’ of the type specified. The statute focuses on the fact of the conviction and
nothing suggests that the prior final conviction may be subject to collateral attack for
11
By contrast, section 1170.126 clearly contemplates a hearing on the matters to be
determined after a petitioner is found eligible for resentencing (dangerousness and actual
resentencing), as it authorizes the court to consider any evidence it finds relevant in
deciding dangerousness (subd. (g)), allows the petitioner to “waive his or her appearance
in court” for resentencing in certain circumstances (subd. (i)), and designates the
“resentencing hearing” as a “ ‘post-conviction release proceeding’ ” for purposes of the
state Constitution’s provisions concerning crime victims’ rights (Cal. Const. Art. I, § 28,
subd. (b)(7)). (See Kaulick, supra, 215 Cal.App.4th at pp. 1296-1300.)
As nothing in the text of Proposition 36 or ballot materials suggests the trial court
has authority to conduct a hearing on the constitutionality of an inmate’s disqualifying
prior convictions, we see no basis for inferring that the voters intended to authorize such
collateral attacks.
The focus of the ballot materials explaining Proposition 36 was on a defendant’s
new offense: The question was whether a life sentence would continue to be required
whenever a defendant with two or more violent or serious felony convictions sustained a
new felony conviction, or only when the new conviction was for a violent or serious
felony. The ballot materials emphasized that life sentences would be maintained “for
felons with nonserious, non-violent third strikes if prior convictions were for rape,
murder or child molestation” and, with respect to resentencing, that due to the eligibility
requirements, defendants with particularly serious criminal histories—“such as certain
drug-, sex-, and gun-related felonies”—would remain subject to a life sentence. (Voter
Information Guide, supra, analysis of Prop. 36, at p. 50.) Since the measure aimed to
lessen sentences for defendants whose new convictions were for non-violent and non-
serious felonies while preserving lengthy sentences based on criminal history, we see no
potential constitutional errors before it may be counted.” (Custis, supra, 511 U.S. at
pp. 490-491, fn. omitted.)
Allen, in holding that Custis did not require overruling the California rule
permitting collateral attack on a prior conviction on Boykin/Tahl grounds, was not
concerned with the high court’s textual analysis of the federal statute but rather with its
constitutional and policy analysis.
12
reasonable basis for assuming the electors intended to provide previously sentenced
defendants with a new means to challenge their past convictions.
Appellant’s argument that the court was required to determine the constitutional
validity of the 1974 prior in order to determine whether that prior made appellant
ineligible for resentencing is based on his assumption that this use of the prior is “no
different” than when the prosecution alleges a defendant is ineligible for probation due to
a prior conviction, or is eligible for a second or third strike sentence due to a prior
conviction. In those situations, appellant argues, if the defendant challenges the
constitutionality of the prior, the court must determine its validity. While this is not true
for every assertion of constitutional infirmity (see Garcia, supra, 14 Cal.4th at p. 966 [no
challenge to prior conviction on ground of ineffective assistance of counsel in current
prosecution for noncapital offense]), it is true for the Boykin/Tahl violation alleged here.
(Allen, supra, 21 Cal.4th at pp. 427, 443.)10
But the fact that a defendant has a right to challenge the constitutionality of a prior
conviction alleged to enhance his or her sentence in a current proceeding does not
necessarily mean the same right exists on a motion for resentencing. Various cases have
recognized substantive and procedural differences between initial three strikes sentencing
under the Reform Act and resentencing under section 1170.126. (E.g, Yearwood, supra,
213 Cal.App.4th at p. 178 [no equal protection violation in provision for denial of
resentencing on basis of dangerousness with no dangerous inquiry at original sentencing];
People v. Losa (2014) 232 Cal. App. 4th 789, 793 (Losa) [same]; Osuna, supra, 225
Cal.App.4th at pp. 1033, 1038 [unlike original sentencing, no pleading and proof
10
Appellant quotes the court’s statement in Allen that “if a state desires to rely on
a defendant’s prior felony conviction to enhance his or her sentence, the prior conviction
must be constitutionally valid.” (Allen, supra, 21 Cal.4th at p 429.) Allen cited Garcia,
supra, 14 Cal.4th at page 959, for this proposition. But what Garcia said was that “a
prior conviction that has been determined to be constitutionally invalid may not be used
to enhance the punishment for a subsequent offense.” (Garcia, at p. 959, emphasis
added.) As Allen and Garcia illustrate, whether the constitutionality of a prior conviction
may be challenged by motion to strike in a current sentencing proceeding depends on the
nature of the alleged constitutional violation.
13
requirement for disqualifying factors at resentencing and no requirement that
disqualifying factors be proven to jury beyond reasonable doubt].) As we have said, the
fundamental premise of appellant’s argument—that a constitutionally invalid prior
conviction cannot be used to enhance punishment for a subsequent offense (Allen, supra,
21 Cal.4th at p. 429; Garcia, supra, 14 Cal.4th at p. 959)—does not apply to a section
1170.126 proceeding, which cannot increase an individual’s sentence but only reduce or
leave intact the sentence originally imposed. (Osuna, at p. 1040; Bradford, supra, 227
Cal.App.4th at p. 1336.)
The requisite authority to entertain a collateral attack on a prior conviction in this
context is not conferred upon the trial court by Allen and Sumstine. The decision in
Sumstine, supra, 36 Cal. 3d 909, permitting Boykin/Tahl challenges to prior convictions
by motion to strike in a current sentencing proceeding, was based not on “constitutional
imperatives” but on a “policy judgment” concerning “efficient judicial administration.”
(Allen, supra, 21 Cal.4th at p. 435.)11 The administrative efficiency achieved by
permitting the motion to strike was by comparison to the prior procedure, under which a
defendant would “challenge a prior by seeking a writ of habeas corpus after a final
judgment in which the prior had been used to enhance his sentence.” (Sumstine, at
p. 920; Allen, at pp. 429-430.) In other words, the collateral attack permitted by Allen
and Sumstine allows a defendant who would be able to attack his or her sentence by
habeas petition after judgment to make the challenge at the outset, before sentence is
imposed. This rationale simply does not apply to a section 1170.126 proceeding taking
11
Allen stated, “Our decision in Sumstine was not based on constitutional
imperatives, but on the policy judgment, first announced in Coffey, supra, 67 Cal. 2d 204,
that ‘it is clearly in the interest of efficient judicial administration that attacks upon the
constitutional basis of prior convictions be disposed of at the earliest possible
opportunity, and we are therefore of the view that, if the issue is properly raised at or
prior to trial, it must be determined by the trial court.’ (Id. at p. 215.) We not only
reaffirmed that policy decision in Sumstine, supra, 36 Cal.3d at page 920, we again did so
in Curl [v. Superior Court (1990)] 51 Cal.3d [1292,] 1302.” (Allen, supra, 21 Cal.4th at
p. 435.)
14
place many years after the trial in which sentence was enhanced by a prior that is no
longer subject to challenge.12
The 1974 prior appellant sought to challenge in this resentencing proceeding had
previously been used twice to enhance appellant’s sentence for another crime. He
challenged its constitutionality on the grounds now asserted by a motion to strike at his
1985 trial and again by writ petition after his 1997 conviction, based on his attorney’s
failure to challenge the prior in those proceedings. As we have said, his claim that the
writ petition was denied in error (because this court mistakenly expected Allen to
overrule Sumstine) is speculative. The California Supreme Court denied review of the
writ petition a week before the Allen opinion was issued, and we denied the request for
reinstatement of the petition that appellant filed after Allen was decided. Appellant filed
a petition for writ of habeas corpus in federal district court, the denial of which was
12
Relying upon In re Douglas (2011) 200 Cal. App. 4th 236, respondent argues that
appellant cannot collaterally attack the 1974 prior because he is no longer in custody in
connection with it. Douglas addressed the rule that courts do not have authority to grant
habeas corpus relief unless the petitioner is in actual or constructive custody (id. at
pp. 246-247) and held that “for habeas corpus purposes, custody on a later case does not
allow an earlier, expired conviction to be collaterally challenged, even if it is used to
enhance a later case.” (Id. at p. 249.) In Douglas, when prosecuted for failing to register
as a sex offender, the petitioner sought to invalidate the prior conviction which led to the
registration requirement; his effort failed both because he was not “in custody” on the
prior conviction and because he had delayed unreasonably in waiting to challenge it until
many years later, when it was asserted as the basis for his prosecution for failure to
register.
It is difficult to see what relevance Douglas has to the present case, as the
defendant there was neither in custody nor challenging a prior conviction used to enhance
a later sentence. Indeed, one of the cases Douglas relied upon explained that while the
use of a prior conviction to enhance the sentence on a subsequent conviction does not
mean the defendant is “in custody” on the prior offense for purposes of an attack directed
solely at that prior conviction, the “in custody” requirement is satisfied if the prisoner is
challenging the present sentence “ ‘as enhanced by the allegedly invalid prior
conviction’ ” (Lackawanna County Dist. Attorney v. Coss (2001) 532 U.S. 394, 401-402),
which is precisely what appellant is attempting to do here. In any event, the “in custody”
requirement pertains to petitions for habeas corpus relief and the present case is not a
habeas proceeding.
15
affirmed by the Ninth Circuit Court of Appeal. Given these many levels of review,
appellant’s claim that he was not given a fair opportunity to challenge the 1974 prior is
not persuasive. In addition to the proceedings subsequent to his 1997 conviction,
appellant’s Boykin-Tahl challenge was rejected by the Fifth District Court of Appeal after
his 1985 conviction, and the California Supreme Court denied review of that decision.
Appellant’s argument that the Fifth District’s decision was wrong comes too late and, in
any event, does not confer authority not otherwise extended under section 1170.126 for
the trial court to determine the constitutionality of the 1974 prior.13 Absent statutory
authority, to allow an inmate seeking resentencing under section 1170.126 to challenge a
disqualifying prior as having been obtained in violation his or her constitutional rights
would permit “an end run around statutes of limitations and other procedural barriers that
would preclude the movant from attacking the prior conviction directly.” (Daniels v.
U.S. (2001) 532 U.S. 374, 383.)
II.
Appellant also argues the trial court erred in concluding it did not have discretion
to dismiss his prior convictions in the interests of justice under section 1385. As we have
said, section 1385 gives the trial court power to dismiss an entire action or to “strike
13
The Fifth District opinion noted that appellant had testified he was not advised
of his constitutional rights when he entered his guilty plea in municipal court but stated
that in superior court he was told he had a right to jury trial, to confront and cross-
examine witnesses and to subpoena witnesses on his own behalf. The court explained
that while In re Tahl, supra, 1 Cal. 3d 122, held that the record must show “on its face”
direct evidence that the accused was aware of the constitutional rights and the
consequences of his or her plea, on collateral attack of a prior conviction, the defendant
may not rely on a silent record but must affirmatively allege and demonstrate he was
unaware of and did not intelligently waive these rights. Although appellant did not recall
being advised of his right to remain silent in municipal court, the superior court
proceedings satisfied constitutional requirements. Any failure to assure appellant was
aware of the consequences of his plea, a non-constitutionally compelled requirement, was
harmless because it was reasonably probable appellant would have entered the same plea
if he had been advised of these consequences.
16
factual allegations relevant to sentencing, such as the allegation that a defendant has prior
felony convictions.” (Romero, supra, 13 Cal.4th at p. 504.) “Because the power is
statutory, the Legislature may eliminate it,” but a statute will not be interpreted as
eliminating the power absent “ ‘clear legislative direction.’ ” (Romero, at p. 518; People
v. Williams (1981) 30 Cal. 3d 470, 482 [“[s]ection 1385 permits dismissals in the interest
of justice in any situation where the Legislature has not clearly evidenced a contrary
intent”].) An “express reference to section 1385 is not required,” and the “clear
expression of intent may be found either in the relevant statutory language or in the
statute’s legislative or initiative history.” (People v. Fuentes (2016) 1 Cal.5th 218, 227.)
Appellant argues that section 1170.126 does not contain a clear direction that the
court lacks power to dismiss a prior conviction under section 1385 in order to make a
defendant eligible for resentencing and, in fact, demonstrates the opposition. He points to
section 1170.12, subdivision (d)(2): “Nothing in this section shall be read to alter a
court’s authority under Section 1385,” and section 1170.126, subdivision (k), “Nothing in
this section is intended to diminish or abrogate any rights or remedies otherwise available
to the defendant.” Appellant recognizes that this issue was decided against him in
Brown, supra, 230 Cal. App. 4th 1502, which (as discussed above) held that trial courts do
not have authority to dismiss prior convictions under section 1385 in order to make
defendants eligible for resentencing under section 1170.126. He argues that Brown was
wrongly decided.
The fundamental premise of appellant’s argument is that there is “something” for
the court to dismiss in a section 1170.126 proceeding because a disqualifying prior
conviction must be pleaded and proved by the prosecution. Appellant all but ignores the
many cases—including our own—that have held there is no pleading and proof
requirement for factors that disqualify a defendant from resentencing under the Reform
Act. (People v. Thurston (2016) 244 Cal. App. 4th 644, 656-658 (Thurston); Chubbuck,
supra, 231 Cal.App.4th at p. 748; People v. Brimmer (2014) 230 Cal. App. 4th 782, 805
(Brimmer); People v. Elder (2014) 227 Cal. App. 4th 1308, 1314-1315; Osuna, supra, 225
Cal.App.4th at p. 1038; People v. Blakely (2014) 225 Cal. App. 4th 1042, 1058; White,
17
supra, 223 Cal.App.4th at pp. 526-527.) The “pleading and proof requirement plainly is
a part of only the prospective part of the Reform Act, which governs the sentencing of a
defendant with ‘two or more prior serious and/or violent felony convictions’ who has
suffered a third felony conviction; it is not a part of section 1170.126, the retrospective
part of the Reform Act that governs a petition for resentencing brought by an inmate
already serving a life sentence under the Three Strikes law.” (White, at p. 527; Brimmer,
at p. 802.) “No pleading and proof language appears in the part of the [Reform] Act
addressing relief to persons previously sentenced under the Three Strikes law.
(§ 1170.126, subd. (e).) The retrospective relief under section 1170.126 is conditioned
upon an eligible commitment offense, which ‘the [trial] court shall determine’ on
‘receiving a petition for recall of sentence under this section.’ (§ 1170.126, subd. (f),
italics added.)” (Brimmer, at pp. 802-803.) “There is no provision for the People to
plead or prove anything, the burden falls on the trial court to make the determination
whether a defendant meets the prima facie criteria for recall of sentence.” (People v.
Guilford (2014) 228 Cal. App. 4th 651, 657.)
The prior convictions that disqualify a defendant from resentencing are identified
in section 1170.126, subdivision (e)(3), as “prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” As relevant here, section 1170.12, subdivision (c)(2)(C)(iv)(III),
specifies “[a] lewd or lascivious act involving a child under 14 years of age, in violation
of Section 288.” Appellant maintains that by referring to section 1170.12, subdivision
(c)(2)(C)(iv), rather than directly to section 288, section 1170.126 incorporated the
language of section 1170.12, subdivision (c)(2)(C), which refers to prior convictions “that
have been pled and proved.” But section 1170.126, subdivision (e)(3), cross-references
only “the offenses appearing in” the specified clauses and “not the text preceding them
18
that specifies the procedural prerequisite of pleading and proof.” (Elder, supra, 227
Cal.App.4th at p. 1315; Thurston, supra, 244 Cal.App.4th at p. 657.)14
As appellant’s argument is constructed entirely upon his assumption that
disqualifying prior convictions must be pleaded and proved by the prosecution, the
failure of this premise is fatal to his section 1385 argument.
Further, the many cases appellant discusses concerning the trial court’s authority
to dismiss prior convictions at original sentencing do not compel a conclusion that the
same power exists with regard to determining eligibility for resentencing under section
1170.126. As Brown recognized, section 1385 does not itself grant the court jurisdiction
to resentence a defendant after execution of sentence has begun. (Brown, supra, 230
Cal.App.4th at p. 1511.) “ ‘[I]t is well established that a court may exercise its power to
strike under section 1385 “before, during or after trial,” up to the time judgment is
pronounced. [Citations.]’ ” (Ibid., quoting Romero, supra, 13 Cal.4th at p. 524, fn. 11.)
The determination of eligibility for resentencing under section 1170.126 occurs after a
final judgment has been imposed and execution of sentence has begun. The court’s only
power to act derives from section 1170.126, which permits resentencing only if the
specified requirements are met. As Brown explained, section 1170.126 gives the trial
court discretion to determine, based on the individual’s dangerousness, whether an
eligible inmate is actually resentenced. But “if the inmate does not satisfy one or more of
the [eligibility] criteria, section 1170.126 grants the trial court no power to do anything
but deny the petition for recall of sentence.” (Brown, at pp. 1511-1512.) As Brown
pointed out, the legislative analysis of Proposition 36 “described how certain current third
strikers would be resentenced, but explained that the Reform Act” ‘limits eligibility for
resentencing to third strikers whose current offense is nonserious, non-violent, and who
have not committed specified current and prior offenses, such as certain drug-, sex-, and
14
To the extent appellant contends that failure to imply a pleading and proof
requirement into section 1170.126 would violate constitutional equal protection
guarantees, we have previously rejected the argument. (Thurston, supra, 244
Cal.App.4th at pp. 658-659.)
19
gun-related felonies.’ ” (Brown, at p. 1514, quoting Voter Information Guide, supra,
analysis of Prop. 36, by Legis. Analyst, at p. 50, italics in Brown.) “The legislative
analysis also explains that trial courts ‘conducting these resentencing hearings would first
determine whether the offender’s criminal history makes them eligible for resentencing.’
” (Brown, at p. 1514.) Nothing in the text or legislative analysis of section 1170.126
suggests that the court may, in effect, bypass the eligibility criteria for resentencing by
striking a prior conviction.15
Appellant argues that the Brown court’s analysis “proves too much” in that if it
was correct that the voters’ intent was to maintain life sentences for felons with prior
convictions for rape, murder or child molestation “unconditionally and without
exception,” then Romero was wrong in deciding that courts have authority to dismiss
such prior convictions pursuant to section 1385 at initial three strikes sentencing.
Appellant reasons that because the language Brown relied upon in finding the electorate
did not intend courts to have section 1385 discretion with respect to eligibility for
resentencing was similar to the language in voter materials for the measure by which the
original three strikes law was adopted, Brown’s inference regarding voter intent cannot
be reconciled with the Romero court’s conclusion that trial courts have section 1385
authority in three strikes cases. Additionally, pointing to voter materials concerning the
15
As the trial court’s remarks in this case illustrate, giving trial courts discretion to
alter the criminal history of inmates seeking resentencing in order to be able to resentence
them would undermine the very concept of “eligibility” for resentencing. The court
asked defense counsel, “Well, excuse me, but aren’t you really asking me to go behind
the law? And under your theory then, anybody would be eligible for resentencing. The
eligibility portion of the statute would just fly out the window; because, I mean, this sets
forth who’s eligible and who’s not. Not everybody is eligible. Under your theory,
everybody would be eligible. And just well, okay, I’ll go behind the law and I’ll look at
the priors even though the law tells me they’re not eligible to be resentenced.” When
counsel argued that the court has “inherent power under 1385 under the three strikes law”
and the spirit of Proposition 36 would be served by releasing appellant, who did not
commit a violent offense, was now 76 years old and had an exemplary record of conduct
in prison, the court stated that counsel was skipping ahead to the suitability portion of
section 1170.126, not addressing eligibility.
20
original three strikes law which noted that the law would give prosecutors discretion to
dismiss a prior strike in the interests of justice, appellant suggests that Brown’s reasoning
would require this language to be seen as indicating the voters did not intend courts to
have such discretion.
Appellant assumes an equivalence between original sentencing and resentencing
under the Reform Act that has been repeatedly rejected by this and other courts. The
provisions governing resentencing provide “similar, but not identical, relief for prisoners
already serving third strike sentences in cases where the third strike was not a serious or
violent felony” to the relief afforded by the provisions governing prospective, original
sentencing. (Kaulick, supra, 215 Cal.App.4th at p. 1292.) Romero was concerned only
with original three strikes sentencing, and refused to interpret the three strikes law as
conditioning courts’ power to dismiss prior convictions on prosecutors’ consent not in
order to effectuate voters’ intent but to preserve the constitutionality of the statute,
because the opposite interpretation would have violated the doctrine of separation of
powers. (Romero, supra, 13 Cal.3d at pp. 509, 517-519.) Brown, on the other hand,
considered language in the voter materials emphasizing that the proposed more lenient
treatment with respect to third strike felonies would not lead to the release of inmates
with particularly serious criminal histories and concluded the voters did not intend for
trial courts to be able to bypass the eligibility criteria for resentencing of three strikes
inmates.
As with other differences in treatment the courts have considered (Thurston,
supra, 244 Cal.App.4th at p. 658-659 [pleading and proof]; Losa, supra, 232 Cal.App.4th
at p. 793 [dangerousness]), the difference with respect to section 1385 does not violate
inmates’ rights to equal protection of the laws. Appellant is not similarly situated to a
defendant being sentenced for the first time under the Reform Act. (Losa, at p. 793.) In
rejecting an equal protection challenge to the provision of section 1170.126 precluding
resentencing upon a trial court’s determination of dangerousness, the Losa court
explained, “Defendant is not merely entering the prison system; rather, he has been
confined there for a substantial period of time. . . . ‘[Defendant] was properly sentenced
21
to prison for an indefinite term because he was properly convicted (beyond a reasonable
doubt, by a unanimous jury) of a third felony after he had committed two prior serious or
violent felonies. It was his third felony conviction which, pursuant to the law in effect at
the time, subjected him to an indeterminate sentence. Now, due to the adoption of the
Act, [defendant] may be entitled to a downward modification of this indeterminate term
to a determinate second strike sentence. That he may be denied such downward
modification due to a finding of dangerousness based on a preponderance of the evidence
does not mean that he would be subjected to indefinite confinement based on this finding.
He is subject to the indeterminate term due to his original third strike sentence; the
dangerousness finding would simply deny him a downward modification. This process
does not deny [defendant] his constitutional right to equal protection of the law.’ ” (Losa,
at p. 793, quoting Kaulick, supra, 215 Cal.App.4th at p. 1306.)
“ ‘The retrospective part of the [Reform] Act is not constitutionally required, but
an act of lenity on the part of the electorate.’ ” (Osuna, supra, 225 Cal.App.4th at
p. 1040.) Its extension of lenient treatment to inmates already serving three strikes
sentences is conditioned on specified eligibility criteria which it does not authorize the
trial court to bypass. Because he is not similarly situated to a defendant receiving an
initial sentence under the Reform Act, his different treatment in this respect does not
violate equal protection.
III.
Appellant also contends his constitutional right to equal protection was violated in
that he was found ineligible for resentencing based on a prior conviction for violation of
section 288 when an individual convicted of violating section 288.7, a more serious
offense, would not be ineligible for resentencing.
Section 288.7 establishes a prison sentence of 25 years to life for a person 18 years
of age or older who engages in sexual intercourse or sodomy with a child 10 years of age
or younger, and a sentence of 15 years to life for a person 18 years of age or older who
engaged in oral copulation or sexual penetration, as defined in section 289, with a child
10 years of age or younger.
22
Violation of section 288, subdivision (a), carries a penalty of three, six, or eight
years.16
As we have seen, section 288 is expressly specified as a disqualifying offense:
Section 1170.126, subdivision (e)(3), refers to convictions for any of the offenses
appearing in section 1170.12, subdivision (c)(2)(C)(iv), and section 1170.12, subdivision
(c)(2)(C)(iv)(III), specifies “[a] lewd or lascivious act involving a child under 14 years of
age, in violation of Section 288.” Section 288.7 is not expressly identified.
Respondent argues that a person who violated section 288.7 would be ineligible
for resentencing because section 288.7 is not a distinct offense but “merely increases the
penalty for other (disqualifying) offenses when the age of the perpetrator exceeds a
specified level and the age of the victim is less than a specified age.” According to
respondent, section 288.7 describes “conduct” that is also engaged in by those who
commit the offenses specified as disqualifying, such as sections 286 or 289 (§ 1170.12,
subd. (c)(2)(C)(iv)(II)). Respondent also argues, in the alternative, that even if a
violation of section 288.7 is not disqualifying, there is no equal protection violation.
The answer is much more straightforward: Although not expressly designated by
number in section 1170.12, subdivision (c)(2)(C)(iv), violation of section 288.7 is a
disqualifying offense under section 1170.12, subdivision (c)(2)(C)(iv)(VIII), as a “serious
and/or violent felony offense punishable in California by life imprisonment or death.”
The statutory definitions of both “serious felony” and “violent felony” include “any
felony punishable by death or imprisonment in the state prison for life.” (§§ 1192.7,
subd. (c)(7)), 667.5, subd. (c)(7).)
As violation of section 288.7 is a disqualifying offense under section 1170.126,
subdivision (e)(3), appellant’s argument is meritless.
16
If the offense is committed by force, violence, duress or fear of immediate and
unlawful bodily injury on the victim or another person, the prescribed sentence is five,
eight, or ten years (§ 288, subd. (b)).
23
DISPOSITION
The judgment is affirmed.
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.
24
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Barbara Mallach
Attorneys for Appellant: By Appointment of the Court of Appeal
Under the First District Appellate Project
Jonathan Soglin
William Richard Such
Attorneys for Respondent: Kamala D. Harris
Attorney General of California
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Acting Senior Assistant Attorney General
Catherine A. Rivlin
Supervising Deputy Attorney General
Allan Yannow
Deputy Attorney General
25 | 01-03-2023 | 02-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126534/ | AFFIRM; and Opinion Filed February 8, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00068-CV
WHEEL TECHNOLOGIES, INC., Appellant
V.
EDGAR GONZALEZ, Appellee
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-13-04344-E
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Bridges
Appellee Edgar Gonzalez filed suit against appellant Wheel Technologies, Inc. (WTI) for
suit on sworn account, breach of oral contract, and quantum meruit. After a bench trial, the trial
court found in favor of Gonzales and awarded $31,103.01 in damages, $6,200 in attorney’s fees,
and $ 1,306.23 in costs. On appeal, WTI argues there was no evidence, or insufficient evidence,
to support the trial court’s judgment for a suit on sworn account. We affirm.
Background
The disputed fact in this case is whether Gonzales delivered wheels to WTI and WTI
failed to pay. Two witnesses testified during the bench trial: Gonzalez and Danny Blaser, the
president of WTI.
Gonzales testified he owned a business that provided tires to WTI, who then sold them as
part of insurance claims or to people who needed tire replacements. Gonzalez’s contact at WTI
was Mike Owens, the general manager. When WTI needed a specific tire, Owens contacted
Gonzalez, who delivered the tire if he had it in stock. Because the exchanges often happened
after hours, WTI did not always have a check immediately available for payment or a receipt. At
those times, Gonzalez returned later for payment. Gonzalez explained WTI sometimes created a
credit memo, but it did not happen all the time. On other occasions, Owens handed him a check
at delivery.
Gonzalez created an accounting of every delivery he made to WTI, which included
payments made by WTI and any offsets. He also had debit memos that WTI sometimes created
and gave him when he received a check. These memos, however, were not created for every
transaction.
In 2011, WTI’s computer system crashed without a backup. Gonzalez and Owens spent a
couple hours discussing what orders were still unpaid. Although they reached an agreement,
Gonzales believed “There was still some doubts. I think we both took a generous approach.” He
further explained WTI was really busy during that time, and “things were not getting handled to
the detail that they should have.” Debit memos were missing, and there were some concerns
about WTI’s accountability.
Gonzalez testified WTI was usually behind on payments to him. When WTI got behind
on payments, he sent email updates to Owens. Gonzalez relied on his accounting for proof of
delivered goods to WTI and attached an updated balance sheet with each email regarding the
status of any open balance.
During the bench trial, the trial court admitted Gonzalez’s accounting, which reflected
WTI’s outstanding balance of $33,103.01. Gonzales admitted he had nothing from WTI
showing WTI received the goods. He requested such documentation in discovery but received
nothing.
–2–
Blaser testified he did not deal directly with Gonzalez during any of the tire transactions. 1
He explained that most of WTI’s vendors required a purchase order for tires so a purchase order
would have to be generated “on our end” in order to sell the goods through its accounting
system. He explained, “It must come in the door first before I can sell it out the door.” WTI
could not sell inventory “we haven’t brought in through a purchase order.”
According to Blaser, purchase orders did not exist for those tires Gonzalez allegedly
delivered to WTI without payment. However, Blaser admitted WTI experienced a “computer
glitch” in which they lost two-and-a-half months of business records and relied on customers to
fill the information gap to repair the accounting. Blaser admitted WTI’s accounting could be
missing information. The accounting matched some of Gonzalez’s accounting for those orders
that had been paid, omitted others, and contained irrelevant information about orders Gonzalez
was not pursuing.
After the bench trial, the court found in favor of Gonzalez and awarded him $31,103.01
in damages, $6,200 in attorney’s fees, and $ 1,306.23 in costs.
Discussion
WTI argues that because Gonzalez failed to present any evidence that the wheels he
purportedly delivered to WTI were in fact delivered and that personal property had therefore
passed to WTI, there was no evidence, or insufficient evidence, to support the trial court’s final
judgment. Gonzalez responds the judgment should be upheld because WTI did not request
findings of fact and conclusions of law; therefore, the judgment implies all necessary findings to
support it.
When neither party requests findings of fact and conclusions of law, it is implied that the
trial court made all fact findings necessary to support its judgment. BMC Software Belgium,
1
At the time of trial, Owens had quit.
–3–
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Accordingly, we must imply a finding that
Gonzalez delivered the wheels to WTI. However, when the appellate record includes the
reporter’s and clerk’s records, as in this case, implied findings of fact may be challenged for
legal sufficiency. Id. In reviewing a legal sufficiency point, we view the evidence in the light
most favorable to the prevailing party and disregard all evidence and inferences to the contrary.
Id. Findings are legally sufficient if they are supported by more than a scintilla of evidence.
Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.
1998).
In a bench trial, the trial court, as factfinder, is the sole judge of witness credibility.
Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). As long as the
evidence falls within the “zone of reasonable disagreement,” we will not substitute our judgment
for that of the factfinder. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
In a suit on a sworn account, when the defendant files a sworn denial, the plaintiff has the
burden to prove all essential elements of the claim. Oro-Castillo v. Nat’l Specialty Servs.,
No. 05-01-01319-CV, 2002 WL 971913, at *3 (Tex. App.—Dallas May 13, 2002, no pet.) (not
designated for publication). The essential elements are: (1) sale and delivery of the merchandise
and (2) the amount of the account is just. Id. A sworn account “must show with reasonable
certainty the nature of each item, the date, and the charge therefor.” See Hassler v. Tex. Gypsum
Co., 525 S.W.2d 53, 55 (Tex. App.—Dallas 1975, no writ). WTI challenges the first element.
This case essentially came down to a “he said, he said” between two parties’ explanations
of accounting. Blaser testified WTI always created a purchase order when it received a delivery
and because WTI had no record of any outstanding purchase orders owed to Gonzalez, then it
never received the tires. Gonzalez testified to the contrary. As the judge of witness credibility,
the trial court was free to believe Gonzalez’s testimony that he delivered the tires and relied on
–4–
his accounting, which was admitted without objection 2, for proof that he delivered the tires to
WTI. See Fulgham, 349 S.W.3d at 157; see also Valley Steel Prods. Co. v. Howell, 775 S.W.2d
34, 37 (Tex. App.—Houston [1st Dist.] 1989, no writ) (concluding invoices and other documents
provided more than a scintilla of evidence goods were delivered in suit on sworn account).
Further, Blaser admitted he could not say for sure Owens always created a purchase order upon
receipt of tires because Blaser was never personally involved in any of the transactions. Rather,
Gonzalez testified there were many times in which the deliveries occurred after hours so checks
and other documentation were not always ready when he made a delivery.
Further, Gonzalez testified WTI was usually behind on payments. He provided emails in
which Owens acknowledged the late payments and wanted to work towards a solution. In one
particular email, Owens said, “I spoke to Danny about getting you paid and he agreed, so there’s
money to be had this week.” The emails never said Gonzalez was not entitled to payment
because WTI did not receive the goods. Rather, the trial court could reasonably infer the emails
indicated Gonzalez delivered the tires.
It is undisputed WTI suffered a computer crash in which it lost data and relied on its
customers to recreate and fill in the gaps. Gonzalez testified “there was still some doubts. I
think we both took a generous approach.” He further explained WTI was really busy during that
time and “things were not getting handled to the detail that they should have,” so debit memos
were missing and there was some concern about WTI’s accountability.
Considering the evidence in the light most favorable to the verdict, the trial court heard
more than a scintilla of evidence supporting Gonzalez’s suit on sworn account. Formosa
2
Although WTI argues Gonzalez’s accounting suffered from deficiencies such as not uniformly describing the wheels and inserting
question marks in the “comments” column, WTI did not object to the document’s admission. To the extent WTI attempts to challenge the
admissibility of the accounting, its argument shall not be considered. TEX. R. APP. P. 33.1.
–5–
Plastics Corp. USA, 960 S.W.2d at 48. We overrule WTI’s sole issue. The judgment of the trial
court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
160068F.P05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WHEEL TECHNOLOGIES, INC., On Appeal from the County Court at Law
Appellant No. 5, Dallas County, Texas
Trial Court Cause No. CC-13-04344-E.
No. 05-16-00068-CV V. Opinion delivered by Justice Bridges.
Justices Evans and Schenck participating.
EDGAR GONZALEZ, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee EDGAR GONZALEZ recover his costs of this appeal
from appellant WHEEL TECHNOLOGIES, INC.
Judgment entered this 8th day of February, 2017.
–7– | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142386/ | .,
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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
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OPINION
COMMn-rcs
.YW-- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124970/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 15, 2016
The Honorable Dan Flynn Opinion No. KP-0094
Chair, Committee on Pensions
Texas House of Representatives Re: The extent to which a judge may refuse
Post Office Box 2910 to apply the law of a jurisdiction outside of the
Austin, Texas 78768-2910 United States in certain family law disputes
(RQ-0083-KP)
Dear Representative Flynn:
You ask· a number of questions concerning "the extent to which current law authorizes or
requires a judge of a state court to refuse to apply foreign law in certain family law disputes." 1
You explain that by "foreign law," you mean "the law of a country other than the United States,"
and by "family law dispute," you ~ean "a legal dispute regarding a marital relationship or a parent-
child relationship." Request Letter at 1. While you propose nineteen different factual scenarios,
they each involve the application of foreign law that violates a party's right to due process or the
public policy of this State. Id. at 1-3. As the Texas Supreme Court has explained, "[t]he basic
rule is that a court need not enforce a foreign law if enforcement would be contrary to Texas public
policy." Larchmont Farms, Inc. v. Parra, 941 S.W.2d 93, 95 (Tex. 1997). Mere differences
between Texas law and foreign law do not necessarily render the foreign law unenforceable, but
if a foreign law "violates good morals, natural justice, or is prejudicial to the general interests of
our own citizens," a court may refuse to enforce it. Robertson v. Estate of McKnight, 609 S.W.2d
534, 537 (Tex. 1980). Furthermore, the United States Supreme Court has explained that "due
process requires that no other jurisdiction shall give effect ... to a judgment elsewhere acquired
without due process." Griffin v. Griffin, 327 U.S. 220, 228 (1946). It is with these principles in
mind that we address your specific questions.
You first ask whether a judge may refuse to enforce a judgment of another country that is
based on the application of foreign law that violated a party's due process rights or was contrary
to the public policy of this State. Request Letter at 1. "A judgment obtained in violation of
procedural due process is not entitled to full faith and credit when sued upon in another
jurisdiction." Griffin, 327 U.S. at 228. Texas courts have long held "the chief requisite for the
recognition of a foreign judgment necessarily is that an opportunity for a full and fair trial was
afforded." Banco Minero v. Ross, 172 S.W. 711, 714-15 (Tex. 1915) (declining to recognize a
judgment by a Mexican court after finding that it was entered without a full and fair trial before an
1
Letter from Honorable Dan Flynn, Chair, House Comm. on Pensions, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1 (Dec. 17, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Dan Flynn - Page 2 (KP-0094)
impartial tribunal). Thus, if a judgment was obtained in a foreign jurisdiction in violation of a
party's due process rights, a state court judge may refuse to enforce the judgment. Similarly, Texas
courts will consider whether a judgment obtained in a foreign country was based on foreign law
contrary to this State's public policy, and, if so, the courts may refuse to enforce the judgment.
See Ashfaq v. Ashfaq, 467 S.W.3d 539, 543--44 (Tex. App.-Houston [1st Dist.] 2015, no pet.)
(considering whether Pakistani divorce law violated Texas public policy).
You next ask whether a judge may refuse to enforce a decision of an agreed-upon arbitrator
if the arbitrator's application of foreign law or the application of principles of a particular faith
resulted in an arbitration decision violating a party's due process rights or was contrary to the
public policy of this State. Request Letter at 2. "Parties in an arbitration proceeding have due
process rights to notice and a meaningful opportunity to be heard." Ewing v. Act Catastrophe-Tex.
L.C., 375 S.W.3d 545, 551 (Tex. App.-Houston [14th Dist.] 2012, pet. denied); see TEX. Clv.
PRAC. & REM. CODE§ 171.044(a) (requiring notice of arbitration). To the extent that an arbitration
award is obtained in violation of these due process rights, a judge is authorized to refuse
enforcement of the award. Furthermore, a Texas court "may refuse to enforce an arbitration award
that is contrary to public policy." Myer v. America Life, Inc., 232 S.W.3d 401, 413 (Tex. App.-
Dallas 2007, no pet.).
In your third question, you ask whether a judge may refuse to apply foreign law that would
otherwise apply under the principles of conflict of laws if applying such law would violate due
process or the public policy of this State. Request Letter at 2. Traditional conflict-of-law
principles prescribe that issues that are strictly procedural in nature are governed by the laws of
the forum state. RESTATEMENT (SECOND) OF CONFLICT OF LAWS§ 122 (AM. LAW INST. 1971);
Arkoma Basin Exp!. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387 n.17 (Tex. 2008).
Thus, a court of this State would apply Texas procedural law, not the procedures of a foreign law,
to determine the substantive rights of the parties. With regard to the public policy concerns you
raise, "[i]f the law of the foreign jurisdiction with the most significant contacts is against good
morals or natural justice, or is prejudicial to the general interests of our citizens, Texas courts
should refuse to enforce said law." Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 316
(Tex. App.-Texarkana 2004, no pet.) (internal quotation marks omitted).
In your fourth question, you ask whether a judge may refuse to enforce a contract provision
that provides for foreign law to govern the dispute if applying the law would violate a party's right
to due process or the public policy of this State. Request Letter at 2. As with the choice-of-law
principles discussed above, although a contract may provide for foreign law to govern the rights
of parties to a dispute, a court of this State will apply Texas law to matters of procedure. Man
Indus. (India), Ltd. v. Midcontinent Express Pipeline, L.L.C., 407 S.W.3d 342, 352 (Tex. App.-
Houston [14th Dist.] 2013, pet. denied). With regard to foreign law that violates the public policy
of this State, the United States Supreme Court has explained that a state is not required to "lend
the aid of its courts to enforce a contract founded upon a foreign law where to do so would be
repugnant to good morals, ... or, in other words, violate the public policy of the state where the
enforcement of the foreign contract is sought." Griffin v. McCoach, 313 U.S. 498, 506 (1941); see
also United Paperworkers Intern. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42 (1987) ("a court
may refuse to enforce contracts that violate ... public policy"). Thus, a court may refuse to enforce
The Honorable Dan Flynn - Page 3 (KP-0094)
a contract provision that requires the application of foreign law to a dispute if doing so would
violate the public policy of this State.
In your fifth question, you ask whether a judge may refuse to enforce a contractual forum-
selection provision providing that a dispute will be resolved by a court outside of the United States
if doing so would violate the party's right to due process or the public policy of this State. Request
Letter at 2. Enforcement of forum-selection clauses is generally mandatory; however, a court has
authority to refuse to enforce the clause upon a showing that "enforcement would be umeasonable
or unjust" or because "enforcement would contravene a strong public policy of the forum where
the suit was brought." In re AutoNation, Inc., 228 S.W.3d 663, 668 n.15 (Tex. 2007); In re
Automated Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004). Thus, ifthe enforcement of
a forum-selection clause would violate the party's right to due process or the public policy of this
State, a court may refuse to enforce it.
You next ask, based on the principle of forum non conveniens, whether a judge may
exercise jurisdiction over a case, despite a more convenient alternative forum, ifthe foreign forum
would apply foreign law that would violate a party's right to due process or the public policy of
this State. Request Letter at 2. A court generally has authority to dismiss a suit on grounds of
forum non conveniens because a court outside Texas has jurisdiction over the suit and is a more
appropriate forum. A.P. Keller Dev., Inc. v. One Jackson Place, Ltd., 890 S.W.2d 502, 505 (Tex.
App.-El Paso 1994, no writ). "[T]rial courts possess broad discretion in deciding whether to
dismiss a case on forum-non-conveniens grounds." In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676
(Tex. 2007). The United States Supreme Court has articulated, and the Texas Supreme Court has
adopted, a number of factors that courts should consider in deciding a forum-non-conveniens
motion. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947); In re Smith Barney, Inc., 975
S.W.2d 593, 596 (Tex. 1998) ("We embraced Gulf Oil's analysis long ago."). Among the factors
to be considered are whether an adequate alternative forum would have jurisdiction over the case
and whether certain private interests of the litigants would weigh in favor of the alternative forum.
In re Pirelli Tire, L.L.C., 247 S.W.3d at 677-79. In determining whether an adequate alternative
forum exists, courts should consider whether the parties will be "deprived of all remedies or treated
unfairly." Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 671 (5th Cir. 2003). And in
determining whether the private interests of the litigants weigh in favor of an alternative forum, a
court should consider, among other private-interest factors, any "obstacles to [a] fair trial" in the
alternative forum. Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962). Thus, if an alternative forum
to Texas would apply law that would violate a party's right to due process or the public policy of
this State, such factors could provide grounds for a judge to deny a motion to dismiss for forum
non conveniens.
In your seventh question, you ask whether a judge abuses his or her discretion if a judge
allows the application of a foreign law in the scenarios previously described and doing so violates
a party's right to due process or the public policy of this State. Request Letter at 3. A court's
decision regarding whether a contract, arbitration award, foreign judgment, or application of
foreign law violates public policy is a question of law that is reviewed de novo by a reviewing
court. See Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex. App.-Houston [1st Dist.] 2010, pet.
denied) (court's ruling on recognition of a foreign country judgment is reviewed de novo ); Xtria,
L.L.C. v. Int'! Ins. All., Inc., 286 S.W.3d 583, 591 (Tex. App.-Texarkana 2009, pet. denied)
The Honorable Dan Flynn - Page 4 (KP-0094)
Gudgment confirming an arbitration award is reviewed de novo ); Johnson v. Structured Asset
Servs., L.L.C., 148 S.W.3d 711, 726 (Tex. App.-Dallas 2004, no pet.) (whether a contract violates
public policy is a question of law, which is reviewed de novo ). Thus, as a matter of law, a court
is without discretion to apply foreign law in a circumstance where doing so violates a party's right
to due process or the clearly established public policy of this State. A trial court's forum-non-
conveniens ruling is subject to review for clear abuse of discretion. In re Pirelli Tire, L.L.C., 247
S.W.3d at 676. Whether a court abuses its discretion in ruling on any given forum-non-conveniens
motion will depend on a weighing of all the factors and the relevant facts of the particular case.
See id. at 679 (considering all the factors articulated in Gulf Oil and concluding that the denial of
a forum-non-conveniens motion was a clear abuse of discretion).
In your eighth question, you ask whether a judge may refuse to enforce a provision of a
contract that is entered into voluntarily that provides for any of the following:
• An arranged marriage
• Granting custody of a child to a conservator who would remove
the child to a foreign jurisdiction that allows child labor in
dangerous conditions
• Granting custody of a child to a conservator who would remove
the child to a foreign jurisdiction that lacks laws against child
abuse
• Granting custody of a female child to a conservator who would
remove the child to a foreign jurisdiction that allows the practice
of female genital mutilation
• Granting custody of a child to a conservator who would remove
the child to a foreign jurisdiction that allows a person to be
subjected to any form of slavery
• Providing for a consequence or penalty for breach of the contract
that violates the public policy of this State, such as the infliction
of bodily harm
Request Letter at 3. Parties do not have a right to enter into contracts that violate the strong public
policy of this State. See Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246 S.W.3d 653, 664
(Tex. 2008). A state's public policy is embodied in its constitution, statutes, and the decisions of
its courts. See Texas Commerce Bank, NA. v. Grizzle, 96 S.W.3d 240, 250 (Tex. 2002); Churchill
Forge, Inc. v. Brown, 61 S.W.3d 368, 373 (Tex. 2001). With regard to family law disputes, the
Legislature has clearly articulated that it is the public policy of this State to:
(1) assure that children will have frequent and continuing contact
with parents who have shown the ability to act in the best interest
of the child;
The Honorable Dan Flynn - Page 5 (KP-0094)
(2) provide a safe, stable, and nonviolent environment for the child;
and
(3) encourage parents to share in the rights and duties of raising their
child after the parents have separated or dissolved their
marnage.
TEX. FAM. CODE§ 153.00l(a). To the extent that any contract term, including those specific terms
that you raise, violates the public policy of this State, a court may refuse to enforce it. See City of
Willow Parkv. E.S. & CM, Inc., 424 S.W.3d 702, 710 (Tex. App.-Fort Worth 2014, pet. denied)
(voiding a contract after finding that "it contravenes the legislature's public policy"); see also
Southwestern Bell Tel. Co. v. Gravitt, 551S.W.2d421, 427 (Tex. App.-San Antonio 1976, writ
ref d n.r.e.) ("[A] general restraint on marriage is unenforceable whether the restraint results from
a promise not to marry or from enforcement of a condition providing for forfeiture of rights in case
of marriage.").
In your ninth question, you ask whether a judge may refuse to enforce an adoption order
entered by a foreign court or tribunal ifthe order would result in a violation of fundamental rights,
Texas law, or the public policy of this State. Request Letter at 3. Section 162.023 of the Family
Code provides:
Except as otherwise provided by law, an adoption order rendered to
a resident of this state that is made by a foreign country shall be
accorded full faith and credit by the courts of this state and enforced
as if the order were rendered by a court in this state unless the
adoption law or process of the foreign country violates the
fundamental principles of human rights or the laws or public policy
of this state.
TEX. FAM. CODE§ 162.023(a) (emphasis added). Under the plain language of the Legislature's
exception in subsection 162.023(a), a court may refrain from enforcing an adoption order if doing
so would violate the fundamental rights or the laws or public policy of this State.
In your tenth question, you ask whether a judge may refuse to enforce a premarital
agreement or property partition agreement if the agreement is unconscionable. Request Letter at
3. "Unconscionable contracts ... are unenforceable under Texas law." In re Poly-Am., L.P., 262
S.W.3d 337, 348 (Tex. 2008); TEX. Bus. & COM. CODE§ 2.302(a). Provisions in the Family Code
provide specifically with regard to premarital and partition agreements that such agreements are
not enforceable if the party against whom enforcement is requested proves, among other
requirements, that the agreement was unconscionable when it was signed. See TEX. FAM. CODE
§§ 4.006(a)(2), .105(a)(2). Whether any specific agreement is unconscionable must be determined
by a court after analyzing the relevant facts. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121,
136 (Tex. App.-San Antonio 2005, pet. denied) (explaining the factors to be examined in
determining whether a contract is unconscionable).
The Honorable Dan Flynn - Page 6 (KP-0094)
You also ask whether a judge may refuse to enforce a premarital agreement if the
agreement violates the public policy of this State or a statute that imposes a criminal penalty.
Request Letter at 3. Section 4.003 of the Family Code authorizes the parties to a premarital
agreement to contract with respect to all matters "not in violation of public policy or a statute
imposing a criminal penalty." TEX.FAM. CODE § 4.003(a)(8). "[P]arties have the right to contract
as they see fit as long as their agreement does not violate the law or public policy"; however, courts
may refuse to enforce a contract, or a provision in a contract, on the ground that it is against public
policy. In re Prudential Ins. Co. ofAm., 148 S.W.3d 124, 129 & n.11 (Tex. 2004); Security Serv.
Fed. Credit Union v. Sanders, 264 S.W.3d 292, 297 (Tex. App.-San Antonio 2008, no pet.).
Furthermore, a contract that cannot be performed without violating the law contravenes public
policy and is void. Lewis v. Davis, 199 S.W.2d 146, 148--49 (Tex. 1947); Merry Homes, Inc. v.
Chi Hung Luu, 312 S.W.3d 938, 945 (Tex. App.-Houston [1st Dist.] 2010, no pet.).
In your final question, you ask to what extent chapter 36 of the Civil Practice and Remedies
Code authorizes "a judge to refuse to enforce a judgment of a foreign court regarding a family law
dispute where the judgment grants or denies payment of a sum of money to one of the parties."
Request Letter at 3. Chapter 36 is the "Uniform Foreign Country Money-Judgment Recognition
Act," and it authorizes a court to "refuse recognition of the foreign court judgment if the motions,
affidavits, briefs, and other evidence before it establish grounds for nonrecognition as specified in
Section 36.005, but the court may not, under any circumstances, review the foreign country
judgment in relation to any matter not specified in Section 36.005." TEX. C1v. PRAC. & REM. CODE
§§ 36.003, .0044(g). Relevant to your request, "foreign country judgment" is defined for purposes
of chapter 36 to mean "a judgment of a foreign country granting or denying a sum of money," but
it expressly excludes a judgment for "support in a matrimonial or family matter." Id.
§ 36.001(2)(B). Thus, chapter 36 will have limited applicability to family law disputes. To the
extent that it applies, however, a court need not recognize a foreign-country money judgment if,
among other grounds, "the defendant in the proceedings in the foreign country court did not receive
notice of the proceedings in sufficient time to defend" or if "the cause of action on which the
judgment IS based IS repugnant to the public policy of this state." Id.
§ 36.005(b )(1 ), (3).
The Honorable Dan Flynn - Page 7 (KP-0094)
SUMMARY
Under Texas law, a court is not required in family law
disputes to enforce a foreign law if enforcement would be contrary
to Texas public policy or if it would violate a party's basic right to
due process.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126550/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0108n.06
No. 16-3280
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 15, 2017
DEBORAH S. HUNT, Clerk
KAREN EPPERSON, et al.,
Plaintiffs-Appellees,
v.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MICHAEL COLBERT,
SOUTHERN DISTRICT OF OHIO
Defendant-Appellant.
BEFORE: MOORE and CLAY, Circuit Judges; and HOOD, District Judge.*
CLAY, Circuit Judge. Defendant Michael Colbert, the Director of the Ohio Department
of Jobs and Family Services,1 appeals the district court’s order granting Plaintiffs’ supplemental
motion for attorneys’ fees and awarding $106,678 in said fees. For the reasons set forth below,
we VACATE the judgment of the district court and REMAND the action back to the district
court for further proceedings not inconsistent with this opinion.
BACKGROUND
Plaintiffs Betty Ledford and Ida Gates (collectively, “Plaintiffs”) were entitled to receive
aid and attendance allowances from the Department of Veterans Affairs (the “VA”) because their
now-deceased husbands were both World War II veterans. Both women lived in Ohio Medicaid-
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
This action was initially filed against the Director of the Ohio Department of Job and
Family Services. However, in 2013, responsibility for Ohio’s Medicaid program was moved to a
separate Department of Medicaid. See Ohio Rev. Code 5162.03.
No. 16-3280
eligible assisted living facilities and received services in these facilities through one of Ohio’s
approved Medicaid “waiver” programs. These programs allow individuals to use Medicaid
funds for home and community-based services instead of requiring them to be admitted to a
skilled nursing home or intermediate care facility. The Ohio Department of Medicaid (the
“Department”) is responsible for calculating how much of a Medicaid-eligible recipient’s income
must be contributed to cover the cost of her care, which is determined by federal law. When
calculating the required contribution amount, the Department included the first $90 of the VA
allowance as part of their non-exempt income, even though a section of the Social Security Act
exempted the first $90 of an individual’s monthly VA benefit from being included in the income
calculation. Plaintiffs were therefore required to contribute these funds to their care, despite
federal law to the contrary.
On October 18, 2010, Plaintiffs filed a complaint in the United States District Court for
the Southern District of Ohio seeking preliminary and permanent injunctions against the
Department to prohibit the Department from considering this $90 monthly payment as income.
They also sought an order that would require the Department to refund any money that was
improperly collected. After amending the complaint to include two more women, the Plaintiffs
moved for class certification. The district court granted Plaintiffs’ class-certification motion and
authorized them to represent the following class:
All Ohio residents who have been participants in the State of Ohio’s Home and
Community Based Medicaid Waiver programs since October 12, 2010, or who
may have become participants thereafter and who are entitled to a VA pension
payment, including any payment made for aid and attendance or for unreimbursed
medical expenses, and have had the first $90 of this allowance included as part of
their income in calculating the payment they must make to their Medicaid Home
and Community Based Waiver service providers.
(R. 68, Order on Mot. for Class Certification, PageID #911–12.)
2
No. 16-3280
Both Plaintiffs and Defendant Michael Colbert, the Director of the Department, filed
summary judgment motions. On May 9, 2012, the district court granted Plaintiffs’ motion for
summary judgment because “the policy implemented by [the Department] in counting the first
$90 of Plaintiffs’ VA aid and attendance benefits in the post-eligibility determination violates 42
U.S.C. § 1396a(r).” (R. 71, Order, PageID #936.) The Department was thereafter “enjoined
from treating such benefits in this fashion for all class members, and for all [Home and
Community Based Services] Medicaid waiver program participants who receive VA aid and
attendance benefits, effective October 12, 2010.” (Id. at 936–37.) In addition, the district court
denied Defendant’s motion for summary judgment as to all claims except the claims by Plaintiff
Ledford, as she passed away before the suit was resolved.
After judgment was entered, Plaintiffs filed a timely motion for attorney fees on July 27,
2012, pursuant to 42 U.S.C. § 1988(b).2 However, the parties subsequently agreed that
Defendant would pay $125,000 to Plaintiffs for “attorney fees and costs incurred by counsel for
Plaintiffs through the Judgment entered in this case on June 18, 2012 and incurred in the
preparation of the Plaintiffs’ motion for fees and their reply.” (R. 80, Consent Entry on Award
of Pls.’ Fees & Costs, PageID #1053.) The district court approved the agreement on October 3,
2012.
No activity occurred in this case for over three years until November 4, 2015, when
Plaintiffs filed two motions: Plaintiffs’ Motion to Reopen Case to Consider Motion for Attorney
Fees and Plaintiffs’ Motion for Award of Post-Judgment Attorney Fees. This second motion
2
Federal Rule of Civil Procedure 54(d) requires motions for attorney fees to “be filed no
later than 14 days after the entry of judgment,” unless “a statute or court order provides
otherwise.” Fed. R. Civ. P. 54(d)(2)(B). The Local Rules for the Southern District of Ohio,
however, require these motions to be filed “not later than forty-five days after the entry of
judgment.” S.D. Ohio Civ. R. 54.2(a).
3
No. 16-3280
sought $219,473.50 in fees for monitoring and enforcing the district court’s permanent
injunction. Specifically, Plaintiffs sought fees in connection with three types of activities:
(1) “negotiat[ing] and comment[ing] on Defendant’s rule change process,” (2) “responding to
class members’ inquiries as to the meaning of the change, their rights and review of class
member’s individual cases to assure their patient liability had been adjusted,” and
(3) “processing and advice to class members regarding receipt of their benefits back to October,
2010.” (R. 85, Pls.’ Mot. for Award of Post-J. Att’y Fees, PageID #1062–63.) Defendant
opposed both motions. On March 8, 2016, the district court granted the order reopening the case
and granted Plaintiffs’ motion for post-judgment attorney fees. The district court, however, did
not award Plaintiffs the full amount requested. Specifically, the district court did not grant the
requested fees for the work of law clerks and law graduates, as that work was mainly clerical and
was thus not necessary to secure Plaintiffs’ success. The court also reduced the fees of the two
lead attorneys by 25% to account for any duplication of efforts by both lawyers and to remove
the billing entries for addressing “individual class members’ problems with securing VA
documentation, issues regarding probate matters, and time reflecting administrative or
organizational work.” (R. 93, Order, PageID #1253–54.) The court further disallowed fees
charged by three other attorneys when such fees were associated with administrative tasks or
were duplicative of the work of the two lead attorneys. As a result, the district court awarded
Plaintiffs post-judgment attorney fees in the amount of $106,678. Defendant filed a timely
notice of appeal.
DISCUSSION
This case presents a relatively unusual situation where Plaintiffs’ counsel continued to work
on the case for an additional three years after the district court entered judgment in their favor
4
No. 16-3280
and approved the settlement agreement requiring Defendant to pay Plaintiffs $125,000 in
attorney fees for their attorneys’ work during the litigation. Such work continued without the
knowledge of the court, and with Defendant unaware that Plaintiffs would later be seeking
attorney fees for their subsequent enforcement and monitoring efforts. Indeed, the district court
itself noted that, “[h]ere, the final judgment provides for no monitoring of the state’s compliance
by any entity. And the parties’ previous stipulation regarding attorney’s fees for the litigation up
to the time of judgment is silent about any involvement of Plaintiffs’ counsel in post-judgment
activities, or their intent to seek an additional amount of fees at some future date.” (Id. at 1249.)
Nonetheless, Plaintiffs returned to the district court after completing their post-judgment
enforcement efforts and received over $100,000 in attorney fees for their work over those three
years. For this appeal, we must first determine whether the district court properly found
Plaintiffs to be a prevailing party for purposes of their post-judgment enforcement actions.
Subsequently, we address whether the district court erred by failing to consider the timeliness of
the motion.
I. Award of Post-Judgment Attorney Fees
A. Standard of Review
“A district court’s determination of prevailing-party status for awards under attorney-fee-
shifting statutes—such as 42 U.S.C. § 1988—is a legal question that [this court] reviews de
novo.” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 617–18 (6th Cir. 2013) (alteration in
original) (quoting Radvansky v. City of Olmsted Falls, 496 F.3d 609, 619 (6th Cir. 2007)). This
Court reviews “a district court’s award of attorney fees under 42 U.S.C. § 1988 for an abuse of
discretion.” Id. at 618 (citing Reed v. Rhodes, 179 F.3d 453, 469 n.2 (6th Cir. 1999)). “A district
court abuses its discretion when it ‘relies upon clearly erroneous factual findings, applies the law
5
No. 16-3280
improperly, or uses an erroneous legal standard.’” Id. (quoting Wikol ex rel. Wikol v.
Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004)).
B. Analysis
Generally, a prevailing party in a federal civil rights action is entitled to reasonable
attorneys’ fees. 42 U.S.C. § 1988. This Court, in Binta B., established the standard for
determining whether a party is “prevailing” for purposes of work “performed enforcing or
defending [a] prior decree.” 710 F.3d at 626. “Specifically, to recover fees for such work, a
plaintiff must ‘show that the work was necessary to enforce the prior decree or judgment and
resulted in a court order or agency determination that at the very least secured plaintiff[s’] initial
success in obtaining the consent decree.’” United States v. Tennessee, 780 F.3d 332, 336–37
(6th Cir. 2015) (quoting Binta B., 710 F.3d at 626). “That standard, by its terms, contains three
elements: first, that the work was necessary to enforce the prior judgment or decree; second, that
the work resulted in a court order or agency determination; and third, that the order or
determination at least secured the plaintiff[s’] initial success in obtaining the decree.” Id. at 337
(citing Binta B., 710 F.3d at 626).
The district court found that Plaintiffs had satisfied all three elements because the
attorneys’ work was necessary to secure the “subsequent administrative awards to the class
members and the final promulgation of the amended rules.” (R. 93, at 1258.) The court noted
that Plaintiffs’ counsel exchanged numerous emails with counsel for the Department in order to
insure that the Department was implementing a new regulation and that that regulation would
include refunds for all individuals receiving VA pension benefits, not just those receiving aid and
assistance benefits. The court further noted that Plaintiffs’ counsel assisted in resolving
6
No. 16-3280
problems relating to inadequate toll-free telephone lines to address class members’ needs, as well
as problems relating to misinformation being provided by Department staff on those lines.
On appeal, Defendant challenges the district court’s judgment insofar as the court found
that Plaintiffs’ attorneys’ work resulted in a court order or agency determination, thus allowing
for the recovery of post-judgment fees. Specifically, Defendant argues that Plaintiffs “had to
show that [their] attorneys actually obtained a court order or agency determination” in order to
be entitled to receive post-judgment attorney fees. (Def.’s Br. at 17.) Defendant argues that this
rule applies to both Plaintiffs’ counsels’ enforcement and monitoring actions.
We first note that the record is unclear as to what activities undertaken by Plaintiffs’
counsel were enforcement activities versus general monitoring activities. However, the district
court, perhaps anticipating this problem, appears to have eliminated all fees for monitoring and
instead focused on the fees that Plaintiffs requested for enforcing the court’s prior judgment.
Indeed, the district court announced that it was applying the analysis set forth in Binta B. and
was determining “if counsels’ work was necessary to enforce the final judgment.” (R. 93, at
1252.) As the district court noted, Plaintiffs’ motion included a request for fees related to 320.1
hours of “General Class Management” in addition to another approximately 300 hours spent
addressing the cases of thirty-three different class members. However, after subtracting the
entries for all law clerks, law graduates, and one attorney, as well as 25% of the fees for the two
lead attorneys, 20% for one junior attorney, and approximately 30% for another attorney, the
district court determined that the remainder of the fees was “necessary to [the] enforcement and
implementation of the judgment.” (R. 93, at 1254; see also id. at 1258 (awarding fees relating
only to the administrative awards and the rule promulgation).) Therefore, we conclude that all
fees for monitoring the class action were eliminated by the district court and that, on appeal, we
7
No. 16-3280
only need to address whether the district court properly awarded fees to Plaintiffs for their
enforcement efforts.
Defendant first argues that the two agency determinations that were resolved in class
members’ favor do not count for purposes of the Binta B. standard because attorney
representation was not required for the agency hearings, and the hearings were only to determine
the amounts of the refunds that should be given to two class members, not whether the class
members were entitled to the refunds in the first place. Defendant further argues that Plaintiffs’
counsels’ other activities, which Defendant characterizes as monitoring activities, also did not
result in any court order or agency determination. Thus, according to Defendant, the second
Binta B. factor has not been established for any of the fees requested by Plaintiffs.
We first find that Plaintiffs met their burden of showing that they obtained an agency
determination that secured the initial success of the lawsuit insofar as Plaintiffs’ counsel was able
to obtain administrative awards for their class members. We know from the record that two of
the class members appealed the Department’s decision on how much reimbursement to award to
them based on their membership in the class action. The relevant hearing officers concluded that
the Department’s reimbursement determination was unsupported and therefore ordered
additional reimbursement to the class members. We consider these state hearing decisions to be
“agency determinations” for the purposes of the Binta B. standard. Consequently, we conclude
that the district court properly determined that attorney fees were warranted insofar as its award
was based on these enforcement actions.
We similarly find that Plaintiffs can recover fees for their counsels’ efforts in obtaining
administrative awards for the other class members, even though those awards did not require
state hearings to challenge the initial determinations of the amounts of the refunds. The district
8
No. 16-3280
court’s order contemplated Plaintiffs receiving refunds for the money that was improperly
collected. An agency determination was required for each of these refunds to be calculated and
sent to the appropriate class member. Therefore, to the extent that the district court awarded fees
for Plaintiffs’ counsels’ efforts relating to securing these refunds, such fees were proper.
Finally, the district court properly awarded Plaintiffs’ counsel fees for their efforts in
conferring with the Department to update the relevant regulations so that the regulations conform
with the district court’s summary judgment order. In the context of a consent decree ordering
that new regulations be promulgated, the Supreme Court, in Pennsylvania v. Delaware Valley
Citizens’ Counsel for Clean Air, 478 U.S. 546 (1986), affirmed the award of fees to the
prevailing party for time spent commenting on the proposed regulations, as “enforcement of the
decree, whether in the courtroom before a judge, or in front of a regulatory agency with power to
modify the substance of the program ordered by the court, involved the type of work which is
properly compensable.” Id. at 558. As we noted in Binta B., Delaware Valley was not overruled
by Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001), which dealt with a situation where West Virginia changed its
statute in response to a lawsuit being filed, not in relation to a judicially-sanctioned order or
decree. Binta B., 710 F.3d at 624–25. We did, however, note that Buckhannon’s rationale of
rejecting the catalyst theory did have some weight in the post-judgment fee context. Id. Thus, in
an attempt to harmonize Delaware Valley and Buckhannon, this Court created the three-factor
test outlined above, which requires that any action by the prevailing party’s attorney must “result
in a subsequent court order or agency determination” in order for fees related to that action to be
compensable on a motion for post-judgment attorney fees. Id. at 625.
9
No. 16-3280
Here, Plaintiffs’ counsel’s communications with the Department brought about the
required change in the regulations, meaning the regulations now conform to the requirements set
forth by the district court. Contrary to the representations of Defendant, Plaintiffs’ counsel’s
advocacy was necessary, as the regulations as initially proposed by the Department did not
afford the full relief required by the district court’s order. [(R. 93, at 1251.)] The result of
Plaintiffs’ counsel’s efforts was an agency determination that certain funds would be excluded
not only for those receiving VA aid and attendance benefits but for all individuals receiving VA
pensions. [(Id.)] We conclude that, under these circumstances, the attorney fees charged in
relation to these advocacy activities are compensable under both Delaware Valley and Binta B.,
as they were necessary to securing the Department’s compliance in promulgating regulations that
protected Plaintiffs to the full extent required by the district court’s order. Consequently, we
conclude that the district court properly awarded attorney fees to Plaintiffs for these activities.
II. Timeliness of Plaintiffs’ Motion for Award of Post-Judgment Attorney Fees
Having determined that Plaintiffs can recover attorney fees based on their advocacy
activities, we turn our attention to the second issue presented by this appeal—whether the district
court erred by not considering whether Plaintiffs’ second motion for attorney fees was timely.
A. Standard of Review
This Court “treat[s] the district court’s interpretation and application of the Federal Rules
of Civil Procedure as a question of law and, as with all legal questions, review[s] this analysis de
novo.” Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 510 (6th Cir. 2001); see also
Quigley v. Rosenthal, 427 F.3d 1232, 1236 (10th Cir. 2005) (“Generally speaking, we review for
abuse of discretion a district court’s ruling on a motion for fees and/or costs under Rule 54(d)(2).
10
No. 16-3280
To the extent, however, the issue . . . implicates the district court’s interpretation of Rule
54(d)(2), we apply a de novo standard of review.” (citations omitted)).
B. Analysis
Defendant argues on appeal that Plaintiffs’ motion for attorney fees should have been
denied because it was filed more than three years after judgment was entered by the district
court. In response, Plaintiffs argue that “no case has applied the time strictures of [Rule] 54(d) to
a supplemental motion for fees post judgment,” and that therefore the time limitations do not
apply to supplemental motions for fees post-judgment. (Pls.’ Br. at 15.)
In general, Federal Rule of Civil Procedure 54 governs motions for attorney fees as well
as the time within which such motions for fees must be filed. Miltimore Sales, Inc. v. Int’l
Rectifier, Inc., 412 F.3d 685, 687 (6th Cir. 2005). Rule 54(d)(2)(B) provides that, “[u]nless a
statute or a court order provides otherwise, the motion [for attorney fees] must[] be filed no later
than 14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B). “District courts,
however, ‘remain free to adopt local rules establishing timeliness standards for the filing of
claims for attorney’s fees.’” Stallworth v. Greater Cleveland Reg’l Transit Auth., 105 F.3d 252,
257 (6th Cir. 1997) (quoting White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 454 (1982)). The
Southern District of Ohio adopted such a rule and requires motions for attorney fees to be filed
“not later than forty-five days after the entry of judgment.” S.D. Ohio Civ. R. 54.2(a). “The
district court may, for good cause, extend the . . . deadline ‘on motion made after the time has
expired if the party failed to act because of excusable neglect.’” Slep-Tone Entm’t Corp. v.
Karaoke Kandy Store, Inc., 782 F.3d 313, 316 (6th Cir. 2015) (quoting Fed. R. Civ. P.
6(b)(1)(B)); see also Allen v. Murph, 194 F.3d 722, 723–24 (6th Cir. 1999) (noting that, when a
party failed to timely file its motion for attorney fees and failed to request an enlargement of the
11
No. 16-3280
time period before such time expired, “the district court could permit a late filing only if the
delay was the result of ‘excusable neglect.’” (quoting Fed. R. Civ. P. 6(b)(2)).
Notably, this rule is of relatively recent creation. Prior to 1993, there were no deadlines
for attorney fees motions. See Fed. R. Civ. P. 54 advisory committee’s notes (1993) (citing
White, 455 U.S. at 454). However, in 1993, the Rules were changed to implement the fourteen
day deadline in order to accomplish three goals: (1) “to assure that the opposing party is
informed of the claim before the time for appeal has elapsed,” (2) to “afford[] an opportunity for
the court to resolve fee disputes shortly after trial, while the services performed are freshly in
mind,” and (3) to “enable[] the court in appropriate circumstances to make its ruling on a fee
request in time for any appellate review of a dispute over fees to proceed at the same time as
review on the merits of the case.” Id.
From these identified goals, we can infer that timely notice in general and timely notice
to the opposing party in particular is of paramount importance. Such notice “creates some
incentive to resolve a post-decree skirmish without dragging out the litigation.” Binta B.,
710 F.3d at 626. District courts would also be aided by such a rule, as they would be able to
decide fee motions at a time when counsel’s activities were still fresh in the minds of all parties
and could more easily be evaluated for their necessity and efficacy. Moreover, requiring timely
notice would prevent the situation presented in this case from occurring again, where Plaintiffs
filed a second motion for attorney fees three years after the judgment had been entered without
requesting a court order appointing them as monitors or seeking leave from the court to file
supplemental motions after the original deadline for attorney fees motions expired.
Based on the goals announced at the time Rule 54(d)(2) was enacted and the principles
derived therefrom, we conclude that the district court erred in awarding attorneys’ fees without
12
No. 16-3280
considering whether the motion was timely or whether any untimeliness should be excused based
on the principle of excusable neglect. See, e.g., Tancredi v. Metro. Life Ins. Co., 378 F.3d 220,
228 (2d Cir. 2004) (holding that “the district court was required to find ‘excusable neglect’ under
Rule 6(b)(2) to extend the time to move for attorneys’ fees after the expiration” of the time
limit). We therefore vacate the decision of the district court to award post-judgment attorney
fees, and remand the action to the district court for further consideration of whether Plaintiffs can
establish excusable neglect for failing to file a request for supplemental attorney fees until over
three years after judgment was entered, despite recognizing that such fees may be sought based
on their continued interactions with the Department.
CONCLUSION
For the reasons stated above, we VACATE the judgment of the district court and
REMAND the action for further consideration not inconsistent with this opinion.
13 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126568/ | STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 14, 2017
Plaintiff-Appellee,
v No. 330470
Livingston Circuit Court
DERICK LEVON DEBORD, LC No. 15-022814-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and O’CONNELL and METER, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions following a jury trial of operating a
vehicle while intoxicated, third offense, MCL 257.625; and operating a vehicle while license is
suspended or revoked, second offense, MCL 257.904. The trial court sentenced him as a fourth-
offense habitual offender, MCL 769.12, to four to 20 years’ imprisonment and to 84 days in jail,
respectively. We affirm.
A man and a female companion were travelling in a car that left the roadway and crashed.
One witness who observed the scene after the crash testified that the man was in the car’s
driver’s seat and his companion was in the passenger’s seat. The witness explained that the man,
who was not wearing pants when he exited the vehicle, walked to the passenger’s side of the car
and retrieved a pair of pants, which he donned before returning to the driver’s seat. Another
witness noticed that the man’s female companion, who was pacing around outside the vehicle,
placed a bottle of Jägermeister next to a tree. The witness stated that the man and his companion
proceeded away in their car, with the man driving. The witness identified the man as defendant.
A police officer who subsequently gave defendant a series of field sobriety tests testified
that defendant failed the tests. The officer stated that he spoke with defendant’s female
companion, who told him that defendant had been driving that night. At trial, the woman
testified that she had been driving, but acknowledged that she can be heard on a recording of her
interview by the aforementioned officer saying that defendant asked her to tell the police that she
had been driving.
On appeal, defendant argues that the trial court abused its discretion by denying his
request, made on the first day of trial, for a continuance to obtain new counsel. Defendant
argued that he was unhappy with his appointed counsel’s representation. He told the court his
-1-
family was prepared to hire independent counsel. The court denied the motion, noting that
defendant had had ample time to secure his own counsel since he was bound over for trial nearly
three months earlier.
We review for an abuse of discretion a trial court’s decision regarding a request for
substitution of counsel. People v Strickland, 293 Mich. App. 393, 397; 810 NW2d 660 (2011).
“A trial court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes.” Id. (citation and quotation marks omitted). When evaluating the trial
court’s decision, we are guided by consideration of the following factors:
(1) whether the defendant is asserting a constitutional right, (2) whether the
defendant has a legitimate reason for asserting the right such as a bona fide
dispute with his attorney, (3) whether the defendant was negligent in asserting his
right, (4) whether the defendant is merely attempting to delay trial, and (5)
whether the defendant demonstrated prejudice resulting from the trial court’s
decision. [People v Echavarria, 233 Mich. App. 356, 369; 592 NW2d 737 (1999).]
“The Sixth Amendment guarantees an accused the right to retain counsel of choice.”
People v Akins, 259 Mich. App. 545, 557; 675 NW2d 863 (2003) (citation and quotation marks
omitted). “However, the right to counsel of choice is not absolute.” Id. (citation and quotation
marks omitted). Rather, “[a] balancing of the accused’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice is done in order to
determine whether an accused’s right to choose counsel has been violated.” Id. (citations and
quotation marks omitted). “A mere allegation that a defendant lacks confidence in his or her
attorney, unsupported by a substantial reason, does not amount to adequate cause . . . [and] a
defendant’s general unhappiness with counsel’s representation is insufficient.” Strickland, 293
Mich. App. at 398.
Defendant informed the court that he was not happy with his attorney’s representation for
a variety of reasons, including that he had not seen her for approximately two months before
meeting with her on the Friday before trial (which began the following Monday). Conversely,
defense counsel explained to the court that she met with defendant at the county jail five times in
the two weeks before trial.
Defendant admitted that he did not have any problems with his counsel when she was
first appointed and that they had been “getting along pretty good . . . .” However, defendant
stated that he became dissatisfied with her representation, in part because counsel had advised
him to plead guilty and had informed him that he would get the maximum sentence if he was
found guilty after a jury trial. Defense counsel indicated that she discussed with defendant “the
liabilities versus the benefit of going forward with trial, [and] his exposure to penalty.” Given
defendant’s extensive criminal history, including his prior drunk driving convictions, any advice
counsel may have given about the benefits of pleading guilty was consistent with her duty of
-2-
competence, MRPC 1.1(c);1 and communication, MRPC 1.4(b);2 as well as with the scope of her
representation, MRPC 1.2(c).3
Defendant also complained that he did not receive his discovery package until the day
before trial and had not had the chance to go through it with his family. Defense counsel
informed the court that defendant requested his discovery packet on the Friday evening before
trial and she gave him the discovery packet and the case file on Sunday morning. This
comported with her duty to “act with reasonable . . . promptness in representing a client.”
MRPC 1.3.
Further, there was no showing that defendant’s family members were prepared to hire a
substitute attorney. None of defendant’s family members were present in the courtroom to
inform the court of any decision or preparedness to hire a substitute attorney. Apart from
defendant’s court-appointed attorney, no other attorney “communicated with the court in any
manner to convey to the court that he was ready to undertake defendant’s cause.” People v
Stinson, 6 Mich. App. 648, 654; 150 NW2d 171 (1967).
Further, defendant was bound over for trial on June 23, 2015, after waiving a preliminary
examination, and was arraigned on July 30, 2015, on a bench warrant issued for his failure to
appear at a July 17, 2015, pretrial. Defendant was present at the July arraignment but did not
complain about counsel’s representation. Nor did he raise the matter at the subsequent
settlement conference. Thus, when trial commenced on September 21, 2015, defendant had had
ample time to avail himself of the opportunity to obtain substitute counsel but failed to do.
Stinson, 6 Mich. App. at 654.
Because witnesses and 50 potential jurors were present and the prosecutor and defense
counsel were ready to proceed with trial, defendant’s decision to request an adjournment on the
first day of trial would have resulted in an unreasonable delay. See Strickland, 293 Mich. App. at
399. “While the appellate courts of this land zealously guard against the rights of defendants to
counsel, they equally concern themselves with the need to dispose of litigation with proper
diligence to avoid a breakdown of the judicial process which is threatened by long delays.”
People v Clark, 9 Mich. App. 602, 605; 157 NW2d 798 (1968).
Finally, defendant did not show that he was prejudiced by the trial court’s decision. The
central dispute at trial was the identity of the person operating the car at the time of the crash.
The prosecution presented compelling evidence that defendant had been driving, and defendant
1
MRPC 1.1(c) provides that a lawyer must not “neglect a legal matter entrusted to the lawyer.”
2
“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.” MRPC 1.4(b).
3
“[A] lawyer may discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good-faith effort to determine the validity,
scope, meaning, or application of the law.” MRPC 1.2(c).
-3-
has failed to demonstrate how a different attorney would likely have obtained a different verdict.
Defendant has failed to show any entitlement to appellate relief.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Peter D. O'Connell
/s/ Patrick M. Meter
-4- | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126573/ | STATE OF MICHIGAN
COURT OF APPEALS
JONATHAN HALL, UNPUBLISHED
February 14, 2017
Plaintiff-Appellant,
v No. 329494
Genesee Circuit Court
SHAWN EDWIN BALL and CHARTER LC No. 14-103922-NI
TOWNSHIP OF GENESEE,
Defendants-Appellees.
Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendants’ motion for summary disposition
under MCR 2.116(C)(7) and (C)(10). Plaintiff was injured when his truck was struck from
behind by a police cruiser driven by defendant Shawn Edwin Ball, an employee of defendant
Charter Township of Genesee. Plaintiff had been in the process of attempting to make a left
turn, and apparently was properly using his turn signal, when Ball, who had been following
plaintiff, attempted to pass plaintiff on the left. Defendants moved for summary disposition,
arguing that plaintiff did not sustain a serious impairment of body function that affects his
general ability to live his normal life and that defendant Ball’s conduct did not amount to gross
negligence. The trial court agreed. We reverse and remand.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR
2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all
evidence submitted by the parties in the light most favorable to the non-moving party and grants
summary disposition only where the evidence fails to establish a genuine issue regarding any
material fact. Id. at 120. Under MCR 2.116(C)(7), where the claim is allegedly barred, the trial
court must accept as true the contents of the complaint, unless they are contradicted by
documentary evidence submitted by the moving party. Id. at 119.
As an initial matter, we find the trial court’s conclusion that Ball was not grossly
negligent to be incredible. In relevant part, Ball would be immune to tort liability unless his
conduct “amount[ed] to gross negligence that is the proximate cause of the injury or damage.”
MCL 691.1407(2). Ball claimed that he believed plaintiff was pulling off the road to the right,
-1-
whereas plaintiff claimed he had properly activated his left turn signal. This is unambiguously a
critical question of fact. Had Ball in fact attempted to pass a car on the left, on a two-lane road,
while that car was obviously turning left, we cannot conceive of how defendants have the
chutzpah to contend that Ball’s conduct was anything but so blatantly reckless as to “demonstrate
a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). This would
not be not mere incompetent driving; it would border on intentionally causing a crash. Of
course, the factual question must be resolved by the trier of fact. Tallman v Markstron, 180
Mich. App. 141; 446 NW2d 618 (1989). We express no opinion, and none should be implied, as
to whether Ball actually engaged in such egregious conduct. However, summary disposition on
the grounds that Ball was not grossly negligent was entirely improper. The Township’s liability
would be premised on MCL 619.1405, which requires only ordinary negligence, so summary
disposition would be improper as to both defendants.
Plaintiff also suffered the requisite level of injury for this case to proceed. Under the no-
fault insurance act, MCL 500.3101 et seq., tort liability for non-economic loss is only available,
in relevant part, “‘if the injured person has suffered death, serious impairment of body function
or permanent serious disfigurement.’” McCormick v Carrier, 487 Mich. 180, 189-190; 795
NW2d 517 (2010), quoting MCL 500.3135(1). MCL 500.3135(5) defines “serious impairment
of body function” as “an objectively manifested impairment of an important body function that
affects the person’s general ability to lead his or her normal life.” In the absence of a material
factual dispute regarding the nature and extent of the person’s injuries, the courts determine
whether the injured person has suffered a serious impairment of body function or permanent
serious disfigurement as a matter of law. McCormick, 487 Mich. at 193.
An “objectively manifested impairment” means “evidenced by actual symptoms or
conditions that someone other than the injured person would observe or perceive as impairing a
body function.” McCormick, 487 Mich. at 196. The focus of this inquiry is how the injuries
affected a particular body function as opposed to the injuries themselves. Id. at 197. Whether
the body function is “important” is highly subjective; what any particular person deems
important may be idiosyncratic and will depend on that specific individual’s life and how the
function affects that life. Id. at 198-199. Whether the impairment affects the person’s general
ability to lead their normal life entails comparing the plaintiff’s life before and after the accident.
Id. at 200-202. The no-fault statute simply requires that a plaintiff show that his or her general
ability to lead a “normal life has been affected, not destroyed,” and “that some of the person’s
ability to live in his or her normal manner of living has been affected, not that some of the
person’s normal manner of living has itself been affected.” Id. at 202 (emphasis in original).
The impairment does not have to be permanent. Id. at 203.
Defendants rely on one statement by plaintiff that at present there is little he technically is
incapable of doing that he could do prior to the accident and doing so simply causes him pain.
This is one statement and it is taken out of context. Generally, “pain and suffering alone” is
insufficient without evidence showing some objectively observable cause for that pain,
McCormick, 487 Mich. at 197-198; see also Schubot v Thayer, 156 Mich. App. 545, 548-549; 402
NW2d 2 (1986), or a restriction ordered by a doctor on the basis of that pain. See McDanield v
Hemker, 268 Mich. App. 269, 282-283; 707 NW2d 211 (2005). However, as a general matter,
parties are entitled to judgments and decisions based on the evidence, notwithstanding any
expression of opinion they may have made inconsistent with that evidence to their own
-2-
detriment. See Ortega v Lenderink, 382 Mich. 218, 222-223; 169 NW2d 470 (1969). The record
proves that plaintiff in fact refrains from some activities he enjoyed prior to the accident, ranging
from playing hockey to playing with his child, so we cannot conclude that his life was
unaffected. Plaintiff also complained that he developed debilitating, severe floaters in his vision,
which are hardly subjective; such phenomena are well known to be caused by physically
detectable objects, usually detached cells from the inside of the eye, literally floating through the
vitreous in the eye. More importantly, plaintiff also suffered from serious muscle spasms in his
lower back, which clearly were objectively manifested.
We therefore conclude that summary disposition was premature. Reversed and
remanded. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
-3- | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4162734/ | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7616
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP SWABY,
Defendant - Appellant.
No. 15-7621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP SWABY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:11-cr-00607-RDB-2; 1:15-cv-02657-RDB)
Argued: December 7, 2016 Decided: April 24, 2017
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Bradley Nelson Garcia, O’MELVENY & MYERS LLP, Washington, D.C.,
for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jeremy Maltby,
David K. Roberts, O’MELVENY & MYERS LLP, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
2
GREGORY, Chief Judge:
Philip Swaby brings a Sixth Amendment ineffective assistance of counsel
challenge to his conviction, which led to his deportation as an aggravated felon. While
Swaby’s counsel provided deficient performance, the district court determined that the
deficient performance did not prejudice his defense because the court corrected his
counsel’s deficiencies. For the reasons below, we reverse the district court’s dismissal,
grant Swaby’s habeas petition, and remand for further proceedings.
I.
A.
Philip Swaby is a citizen of Jamaica, and had been a lawful permanent resident of
the United States since June 6, 2001. He is married to a U.S. resident, has two daughters
who are U.S. citizens, and acts as a father to his wife’s daughter from a prior marriage.
On November 10, 2011, Swaby and his then-girlfriend, now-wife, Ms. Robinson,
were indicted for trafficking in counterfeit goods under 18 U.S.C. § 2320 and conspiracy
to traffic in counterfeit goods. According to the indictment, Swaby and Robinson sold
counterfeit merchandise from a store called Fashion Trendz. They had counterfeit purses,
handbags, and other merchandise; counterfeit labels for expensive brand names; and
generic merchandise bearing no labels.
Peter Ward served as Swaby’s appointed counsel. Ward immediately recognized
that “immigration status would be a significant consideration” for Swaby, who had a
green card and intended to apply for U.S. citizenship. J.A. 147. And from the beginning
3
of the representation, Swaby “[wa]s concerned and ha[d] always been concerned about
his immigration status.” J.A. 83.
Under federal immigration law, any alien convicted of an “aggravated felony” is
deportable. 8 U.S.C. § 1227(a)(iii). Aliens rendered deportable because of an aggravated
felony are ineligible for asylum or cancellation of removal. Moncrieffe v. Holder, 133 S.
Ct. 1678, 1682 (2013). Indeed, deportation is so likely for those convicted of an
aggravated felony that it is akin to “mandatory deportation.” United States v. Akinsade,
686 F.3d 248, 254 (4th Cir. 2012). One such aggravated felony that triggers mandatory
deportation is an offense involving counterfeiting for which the term of imprisonment is
greater than one year. 8 U.S.C. § 1101(a)(43)(R). A second aggravated felony is one
that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
8 U.S.C. § 1101(a)(43)(M)(i).
Recognizing that he lacked expertise in immigration law, Ward contacted Mary
Ann Berlin, an immigration lawyer, for advice. He sent her a copy of Swaby’s
indictment and the relevant criminal statute.
Berlin immediately recognized that Swaby needed to avoid conviction of an
aggravated felony. She first advised Ward that Swaby’s sentence must be under one year
in order to avoid categorization as an aggravated felony. When looking at the criminal
counterfeiting statute, she saw that 18 U.S.C. § 2320(a)(2) prohibited trafficking of
counterfeit merchandise “the use of which is likely . . . to deceive.” Conversely,
§ 2320(a)(1) lacked any “deceit’ or “fraud” language, and thus would not be an
aggravated felony for immigration purposes under 8 U.S.C. § 1101(a)(43)(M)(i). She
4
advised Ward accordingly, and based on this advice Ward negotiated a plea agreement
where Swaby would plead guilty to 18 U.S.C. § 2320(a)(1) and agree to pay $14,220 in
restitution. His sentence was 364 days long.
Unfortunately, Berlin had looked at an amended version of § 2320(a)(1) that did
not apply to Swaby’s case. 1 Based on the version of the statute applicable to Swaby’s
case, 18 U.S.C. § 2320(a)(1)’s language included deception. As a result, Swaby
unknowingly pleaded to an aggravated felony that rendered him automatically
deportable.
Swaby’s plea agreement bore the broad warning about immigration consequences
that is common to many plea agreements:
By pleading guilty, the Defendant will also be giving up
certain valuable civil rights and may be subject to deportation
or other loss of immigration status. . . . [C]onviction for a
broad range of crimes can lead to adverse immigration
consequences, including automatic removal from the United
States. . . . Defendant understands that no one, including his
attorney or the Court, can predict with certainty the effect of a
conviction on immigration status. Defendant nevertheless
affirms that he wants to plead guilty regardless of any
potential immigration consequences.
J.A. 34. And at Swaby’s plea hearing, the district court recited the warning commonly
heard at such proceedings: “You should understand that, by pleading guilty this
afternoon, you may be essentially doing something that will lead to your deportation or
removal from the United States.” J.A. 49. The district court also referenced potential
1
It is unclear from the record whether Ward sent Berlin an erroneous version of
the statute. But regardless, it is clear that Ward never checked Berlin’s advice against the
correct version of the statute.
5
removal from the United States when informing Swaby of the many collateral
consequences Swaby may endure because he pleaded to a felony charge. J.A. 60-61.
Ward emphasized to the court that he consulted with Berlin about the plea
agreement’s immigration consequences, and that “the factors in the plea were arrived
[at]” based on those discussions. J.A. 64-65. While neither Ward nor the district court
could guarantee Swaby’s immigration consequences, the district court warned Swaby of
merely the “risk” of deportation. J.A. 66. Neither Ward nor the district court informed
Swaby that he was pleading to a crime that rendered him automatically deportable.
Swaby pleaded guilty and was sentenced to 364 days of incarceration, $14,220 in
restitution payment, and three years of supervised release. But soon after Swaby was
released from prison, the Department of Homeland Security lodged an immigration
detainer against him and planned to deport him because he had pleaded to an aggravated
felony.
B.
While detained, Swaby filed a petition for a writ of coram nobis on March 20,
2015. He alleged that he received ineffective assistance of counsel during his criminal
proceedings, in violation of the Sixth Amendment. The district court found that Ward’s
reliance on an inapplicable version of the statute and reassurance that pleading guilty to
§ 2320(a)(1) would reduce Swaby’s risk of deportation was clearly wrong. J.A. 121.
And Ward’s error constituted deficient performance. But the district court found that
Ward’s deficient performance did not prejudice Swaby’s proceedings because the court
warned Swaby that his guilty plea could lead to his deportation, and thus remedied any
6
misunderstanding that might have resulted from Ward’s deficient performance. J.A. 123-
24. As a result, the district court denied Swaby’s coram nobis petition.
Swaby next filed a § 2255 habeas petition on September 9, 2015, alleging the
same constitutional violation. See J.A. 127. The district court treated this petition like a
second coram nobis petition because, although Swaby was still detained for immigration
purposes, Swaby was no longer incarcerated and therefore no longer “in custody.” J.A.
134 & n.2. For the same reasons as explained in the coram nobis petition, the district
court denied habeas relief. Swaby filed a timely notice of appeal from this denial.
II.
On appeal, the government argues that we lack jurisdiction over Swaby’s claim.
According to the government, Swaby’s coram nobis petition should have been treated
like a § 2255 habeas petition because he was in custody at the time of filing. As a result,
the government believes that we lack jurisdiction over Swaby’s titled § 2255 habeas
petition because it is an improper successive petition, and that we lack jurisdiction over
Swaby’s first petition because Swaby has not requested a certificate of appealability.
A writ of coram nobis is an exceptional remedy that may be granted only when a
fundamental error has occurred and no other available remedy exists. United States v.
Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988). Here, habeas was in fact available to
Swaby. As a result, Swaby could seek relief only through a habeas petition, and not
through a coram nobis petition.
7
The parties dispute whether habeas was available to Swaby, because the case law
is unclear if an individual under supervised release is still “in custody” after deportation.
But an applicant need only be “‘in custody’ when the application for habeas corpus is
filed.” 2 Carafas v. LaVallee, 391 U.S. 234 (1968). And “[a] prisoner on supervised
release is considered to be ‘in custody’ for the purposes of a § 2255 motion.” United
States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999). Here, Swaby was in the United
States, under supervised release and detained by immigration authorities, when he filed
both of his petitions. Thus, he was in custody, and habeas was available to Swaby when
he filed his coram nobis petition. As a result, we view Swaby’s first petition as an
invalid coram nobis petition, and his titled habeas petition as a valid habeas petition for
which Swaby has filed a notice of appeal. 3
Swaby correctly notes that we are authorized to treat his timely notice of appeal as
a request for a certificate of appealability. A certificate of appealability may only be
issued when the applicant “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has rejected the
2
When an inmate is released from custody, a habeas petition may become moot.
But here, the collateral immigration consequences Swaby continues to suffer from
because of his federal felony conviction ensure his case is not moot. See Carafas v.
LaVallee, 391 U.S. 234, 237-38 (1968).
3
Like the district court was, we may treat Swaby’s coram nobis petition like a
habeas petition. See, e.g., Castro v. United States, 540 U.S. 375, 381 (2003) (noting that
federal courts are free to recharacterize a litigant’s postconviction motion to avoid
unnecessary dismissal, avoid inappropriately stringent application of formal labeling
requirements, or better express the motion’s legal basis). But we do not have to,
especially here where Swaby has filed, received a final judgment on, and timely appealed
a habeas petition on the same issue.
8
applicant’s constitutional claim on the merits, an appellate court may issue a certificate of
appealability if the applicant “demonstrate[s] that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S 473, 484 (2000). For the reasons below, we find that reasonable
jurists would find the district court’s decision on Swaby’s Sixth Amendment claim
debatable or wrong. As a result, we issue a certificate of appealability, and therefore
have jurisdiction over Swaby’s petition.
III.
We next turn to the merits of Swaby’s Sixth Amendment claim. We review a
district court’s denial of habeas relief de novo. 4 Teleguz v. Pearson, 689 F.3d 322, 327
(4th Cir. 2012).
To prevail on an ineffective assistance of counsel claim under the Sixth
Amendment, Swaby must show both that (1) his counsel was professionally unreasonable
and (2) his counsel’s deficient performance prejudiced Swaby’s defense. Strickland v.
4
The district court treated Swaby’s habeas petition like a second coram nobis
petition and adopted much of the district court’s analysis in Swaby’s original coram
nobis petition. Yet the district court’s coram nobis analysis is identical to an analysis
used for habeas petitions. Cf. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)
(“Because of the similarities between coram nobis proceedings and § 2255 proceedings,
the § 2255 procedure often is applied by analogy in coram nobis cases.”). The district
court received a habeas petition, reviewed the petition like a habeas petition, and denied
the petition. Therefore, we view the district court’s disposition as a dismissal of a habeas
petition on the merits.
9
Washington, 466 U.S. 668, 691-92 (1984). These are often called the “deficient
performance” and “prejudice” prongs of a Strickland inquiry.
A.
We first turn to the deficient performance prong. Counsel’s failure to advise a
client about “succinct, clear, and explicit” immigration consequences for a conviction is
constitutionally deficient performance under the Sixth Amendment. Padilla v. Kentucky,
559 U.S. 356 (2010). In Padilla v. Kentucky, Padilla’s counsel did not inform Padilla that
he was pleading to an aggravated felony that rendered him categorically deportable. Id.
at 368-69. And while immigration consequences can be complex, Padilla’s counsel could
have determined that Padilla’s crime was an aggravated felony “simply from reading the
text of the statute.” Id. at 368. His failure to do so, and his “false assurance” that the
conviction would not result in Padilla’s removal from the country, easily constituted
deficient performance.
Swaby’s circumstances here are identical to Padilla’s, and similarly demonstrate
deficient performance. Like Padilla’s counsel, Ward failed to inform Swaby that, under
the plea agreement, Swaby would be pleading to an aggravated felony that would render
him categorically deportable. Like the error in Padilla, Ward only needed to read the
correct version of the statute to determine that the crime was an aggravated felony. And
like the false assurances Padilla’s counsel made, Ward structured the plea agreement to
avoid an aggravated felony and advised Swaby that the plea agreement presented only a
risk, but not a certainty, of deportation.
10
Effective representation by counsel requires that counsel provide correct advice
when the deportation consequences are clear. See id. at 369. Ward’s error--in providing
Berlin with the incorrect statute, failing to read the statute to verify Berlin’s advice, or
both--constitutes deficient performance under the Sixth Amendment.
B.
Swaby must also show that Ward’s deficient performance prejudiced Swaby’s
defense. But a defendant cannot show prejudice if the district court corrects the
misadvice and the defendant understands the correction. United States v. Akinsade, 686
F.3d 248, 253 (4th Cir. 2012). Here, the parties dispute whether the district court’s
general warnings cured Ward’s deficient performance. We hold that the court’s
warnings, which were general and referenced only a vague “risk” or possibility of
deportation, do not.
In United States v. Akinsade, this Court found that the district court’s general
warnings of a risk of deportation did not correct the counsel’s deficient performance.
There, Akinsade pleaded guilty to one count of embezzlement after relying on his
counsel’s erroneous advice that the offense would not render him deportable. Id. at 250.
At the plea colloquy, the district court reviewed the potential collateral consequences to
Akinsade if he pleaded guilty to a felony, including the risk that he “could be deported.”
Id. This Court recognized that a “careful explanation” specifically correcting the
misadvice may cure any prejudice the misadvice might have caused. Id. at 253-54. But a
“general and equivocal admonishment” about merely the risk of deportation is
insufficient to cure counsel’s erroneous advice that the defendant’s crime would not
11
render him categorically deportable. Id. at 254. And in Akinsade, the district court’s
vague warning about only a risk of deportation failed to inform Akinsade that he faced
likely mandatory deportation by pleading to an aggravated felony. Id. Thus, the court’s
general and equivocal instruction did not cure counsel’s deficient performance because
Akinsade could not have known at the plea colloquy that his plea was for an aggravated
felony that led to categorical deportation.
Swaby’s case is identical to Akinsade’s. Like in Akinsade, Swaby only received
general and equivocal admonishments about a risk of deportation. Neither Ward nor the
district court informed Swaby that he was pleading to an aggravated felony rendering him
categorically deportable. The court’s general, nonspecific warning that Swaby may face
immigration consequences and may be deported could not cure Ward’s deficient
performance.
C.
Having established that Swaby satisfies the deficient performance prong and that
the district court’s warning did not cure the deficient performance, we next turn to the
prejudice prong of the Strickland inquiry. A defendant satisfies this prong by showing
that his counsel’s deficient performance prejudiced his defense by “affect[ing] the
outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant is
prejudiced if “there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Id. Our sister circuits
have also, we believe correctly, recognized that a defendant is prejudiced if there is a
reasonable probability that the defendant could have negotiated a plea agreement that did
12
not affect his immigration status. United States v. Rodriguez-Vega, 797 F.3d 781, 788-89
(9th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52-53 (2d Cir. 2014). We first
conclude that Swaby has shown a reasonable probability that he could have negotiated a
plea agreement that avoided immigration consequences. We next conclude that Swaby
has shown a reasonable probability that he would have gone to trial rather than accept the
plea agreement if he were aware of the agreement’s immigration consequences. As a
result, Swaby satisfies the prejudice prong of the Strickland analysis.
1.
We first examine whether Swaby has demonstrated a reasonable likelihood that he
could have negotiated a plea agreement that avoided immigration consequences. The
Second and Ninth Circuits have adopted the same metric by which to make this
assessment, and we adopt this standard.
In Kovacs v. United States, the Second Circuit reviewed an immigrant’s coram
nobis petition seeking vacatur of his guilty plea because his attorney erroneously
informed him that the crime to which he pleaded guilty was not a deportable offense.
744 F.3d 44, 49-50 (2d Cir. 2014). After concluding that Kovacs satisfied the deficient
performance prong, the court turned to the prejudice inquiry. The court held that a
defendant was prejudiced if, “but for counsel’s unprofessional errors, there was a
reasonable probability that the petitioner could have negotiated a plea that did not impact
immigration status.” Id. at 52. To make this showing, Kovacs had to demonstrate both
his resolute intent to structure a plea agreement that avoided immigration consequences,
and a reasonable probability “that the prosecution would have accepted, and the court
13
would have approved, a deal that had no adverse effect on [Kovacs’s] immigration
status.” Id.
The Second Circuit found that Kovacs made this showing. It was apparent that
Kovacs had a “single-minded focus” in the plea negotiations on avoiding immigration
consequences. His attorney and the government also settled on the criminal charge
during plea negotiations “for the sole reason that [the attorney] believed it would not
impair Kovacs’ immigration status.” Id. at 53. These facts demonstrated a reasonable
probability that the prosecution and the court would have accepted a different plea
agreement that would not render Kovacs deportable. Id.
In United States v. Rodriguez-Vega, the Ninth Circuit adopted the Second
Circuit’s reasoning. It initially determined that a defendant could show a reasonable
probability of negotiating a better plea agreement by identifying cases where the
government allowed a defendant who committed a similar crime to plead to a lesser, non-
deportable offense. 797 F.3d at 788. But it further stated that “[a] petitioner may also
demonstrate a reasonable probability [of negotiating a better plea] by showing that she
settled on a charge in a purposeful attempt to avoid an adverse effect on her immigration
status.” Id. at 789. Citing Kovacs, the Ninth Circuit found that Rodriguez-Vega made
this showing: Rodriguez-Vega rejected an initial plea bargain, and then accepted a later
bargain only after a particular removal provision was deleted and she had been advised
that she was less likely to be deported for a misdemeanor than a felony. Id.
Here, Swaby’s negotiations displayed a similarly single-minded focus and similar
acquiescence by the government. As a result, Swaby has demonstrated a reasonable
14
likelihood that he would have negotiated for, and the government would have been
amenable to, a plea agreement that had no immigration consequences. Like the counsel
in Kovacs and Rodriguez-Vela, Ward was aware of Swaby’s immigration concerns from
the outset of the case and structured the plea agreement with the sole purpose of avoiding
immigration consequences. J.A. 149-51. After receiving advice from Berlin, Ward
requested several changes aimed at avoiding Swaby’s immigration consequences,
including pleading to a different charge, reducing the sentence to 364 days, and
incorporating edits that removed fraud and deception language from the stipulation of
facts. And the government accepted all of Ward’s requests, except for Ward’s request to
reduce Swaby’s crime to “aiding and abetting.” J.A. 164. Swaby’s single-minded focus
in structuring the plea agreement to avoid immigration consequences, and the
government’s acquiescence to Ward’s many modifications, demonstrate that Swaby had a
reasonable likelihood of successfully negotiating a plea agreement that avoided
categorical deportation.
Ward asserts that the government would not have acquiesced to a plea agreement
with under $10,000 in losses because he had asked the prosecution “in further
conversations” to reduce the loss amount below $10,000 and was rejected. J.A. 151. But
none of his plea negotiations in the record indicate that he raised the issue. J.A. 158-64.
And because Ward believed the plea agreement lacked language about fraud or deceit,
Ward could not have been on notice that the loss amount rendered Swaby’s crime an
aggravated felony. Given the government’s flexibility in Ward’s other, similarly aimed
requests, it is reasonably likely that the government may have agreed to a loss amount
15
below $10,000 in exchange for other concessions had Ward known the full importance of
the loss amount. This is especially true when even the government’s initial
communications stated that the plea agreement would seek a loss amount between
$10,000 and $30,000, and the ultimate plea agreement resulted in only $14,220 in
restitution.
For these reasons, Swaby has demonstrated a reasonable likelihood that, but for
his counsel’s erroneous advice, he could have negotiated a different plea agreement. As a
result, Ward’s deficient performance prejudiced Swaby’s defense.
2.
Swaby alternatively can demonstrate prejudice by showing a reasonable likelihood
that, absent his counsel’s error, he would have gone to trial instead. To determine
Swaby’s reasonable likelihood of going to trial, we must look to the strength of the state’s
case “inasmuch as a reasonable defendant would surely take it into account.” Ostrander
v. Green, 46 F.3d 347, 356 (4th Cir. 1995), overruled on other grounds by O’Dell v.
Netherland, 95 F.3d 1214 (4th Cir. 1996). But likelihood of acquittal at trial is not the
only factor a defendant considers, especially when the offered plea carries considerable
collateral consequences. For example, this Court has found prejudice when the defendant
“had significant familial ties to the United States and thus would reasonably risk going to
trial instead of pleading guilty and facing certain deportation.” Akinsade, 686 F.3d at
255. And a defendant facing deportation may go to trial for a crime involving fraud or
deceit, despite overwhelming evidence of guilt, in order to assert that the crime’s
estimated loss was less than $10,000. See id. at 255-56.
16
In Akinsade, Akinsade’s guilty plea to one count of embezzlement by a bank
employee of $16,400 was an aggravated felony because it was a crime involving fraud or
deceit with a loss amount of more than $10,000. Had he known about the consequences
of his guilty plea, Akinsade and his attorney assert that Akinsade would have gone to trial
to dispute the alleged loss amount, and to argue that the loss amount attributable to his
crime was less than $10,000. Such a choice “is rational,” and this Court noted that it
“cannot conclude that a reasonable defendant in Akinsade’s shoes” would have acted
differently. Id. at 256.
Swaby’s case is indistinguishable. Similar to Akinsade, Swaby alleges in a sworn
affidavit submitted with his coram nobis petition that he would have gone to trial rather
than plead guilty in order to avoid deportation. He specifically alleges that he would
have contested the loss amount, J.A. 101, which he asserts were rough estimates made
during plea negotiations and based on overly inflated values of brand marks unattached to
merchandise. And even more than Akinsade, Swaby has long familial ties to the United
States, including a wife and children. It is rational that a person in his situation, with
such strong connections to this country, would rather risk a trial to reduce the loss amount
than plead guilty and accept the certainty of deportation.
The government asserts that no reasonable person in Swaby’s position would have
gone to trial because, based on the government’s evidence, Swaby likely would have
17
been convicted and found guilty of a loss amount greater than $10,000. 5 But the
prejudice prong does not require a defendant to show that going to trial would have been
the best objective strategy or even an attractive option. It merely requires the defendant
to show a reasonable likelihood that a person in the defendant’s shoes would have chosen
to go to trial. The decision does not need to be optimal and does not need to ensure
acquittal; it only needs to be rational.
Here, Swaby is a husband, a father, and had been a resident of the United States
since 2001. It is not only reasonably likely, it is unsurprising that Swaby, had he known
the true consequences of his guilty plea, would have taken any chance, no matter how
slim, to avoid deportation by going to trial than accept mandatory deportation from his
family and resident country. And here, Swaby’s likelihood of success was not minimal.
See, e.g., Lee v. United States, 825 F.3d 311, 313-14 (6th Cir. 2016) (describing, in
examining Strickland’s prejudice prong, circuit split on whether immigrant-defendant’s
desire to throw a “Hail Mary,” like a hope for jury nullification, at trial in hopes of
5
The government asserts that Swaby had no chance of reducing the loss amount
below $10,000 at trial. In addition to defending its estimates, including an estimate of
$8,804 by Coach for the number of counterfeit items seized, the government asserts that a
single counterfeit mark has the value of an authentic product. Thus, the 2,000 recovered
counterfeit marks must value more than $10,000. Appellee Br. 28 (citing J.A. 106). But
it is unclear how counterfeit marks, unattached to any merchandise and therefore lacking
any authentic comparator, can be assessed for lost value. Cf., e.g., United States v. Cone,
714 F.3d 197 (4th Cir. 2013) (mentioning unattached brand marks but determining only
whether particular products were counterfeit); United States v. Habegger, 370 F.3d 441
(4th Cir. 2004) (mentioning unattached brand marks but only discussing counterfeit
charges for counterfeit socks and T-shirts); Chanel, Inc. v. Banks, No. WDQ-09-845,
2011 WL 121700 (D. Md. Jan. 13, 2011) (unreported) (calculating, in civil suit, statutory
damages based on each counterfeit mark per type of goods sold).
18
avoiding deportation is a rational decision that amounts to prejudice), cert. granted, 137
S. Ct. 614 (Dec. 14, 2016). 6 Therefore, Ward’s deficient performance prejudiced
Swaby’s defense because there was a reasonable likelihood he would have gone to trial.
IV.
For these reasons, Swaby’s Sixth Amendment right to effective counsel was
violated during his criminal proceedings. We reverse the district court’s denial of habeas
relief, vacate Swaby’s conviction, and remand for further proceedings consistent with this
opinion.
REVERSED, VACATED, AND REMANDED
6
The Sixth Circuit characterizes this Court’s Akinsade decision as one holding
that a “Hail Mary” thrown at trial is not rational. But we have never so held.
19 | 01-03-2023 | 04-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4288688/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
RICHARD H. GOLDSTEIN, )
)
Plaintiff, )
)
v. ) Case No. 14-cv-02186 (APM)
)
INTERNAL REVENUE SERVICE, )
)
Defendant. )
_________________________________________ )
ORDER
Once more, the court confronts Plaintiff Richard H. Goldstein’s indefatigable pursuit of
records concerning a whistleblower claim that he filed with Defendant Internal Revenue Service
(“IRS”) in 2006. This time, Plaintiff has filed a motion seeking reconsideration of that portion of
the court’s Memorandum Opinion and Order, issued on September 29, 2017, in which the court
held that records relating to the agency’s investigation of Plaintiff’s whistleblower claim were
exempt from disclosure because they qualify as “return information,” as defined in under
26 U.S.C. § 6103. See Pl.’s Mot. for Recons. & Request for Judicial Notice, ECF No. 74
[hereinafter Pl.’s Mot.], Mem. of Points & Authorities, ECF No. 74-1 [hereinafter Pl.’s Mem.], at
1–6. In particular, Plaintiff claims the court committed error by not ordering disclosure of “e-
mails known to be in the possession of the IRS Whistleblower Office which specifically describe
the dates, times and locations of meetings that Plaintiff’s former whistleblower attorney, David
Capes, had with local IRS criminal investigation division employees from 2007–2008.” Id. at 1;
see id. at 3, 24.
Plaintiff moves for reconsideration under Federal Rule of Civil Procedure 54(b), see Pl.’s
Mem. at 6, as the court’s Memorandum Opinion and Order issued on September 29, 2017, is
neither a final judgment nor a final order with respect to the challenge that Plaintiff now makes,
see id. at 24 (asking the court to reconsider its September 29, 2017 decision as to Item 8 of
Plaintiff’s FOIA request); Goldstein v. IRS, 279 F. Supp. 3d 170, 184–86 (D.D.C. 2017)
(“Goldstein II”) (refusing to enter summary judgment in Defendant’s favor as to Item 8 due to “a
factual gap in the record” and remanding to the agency for further consideration consistent with
the court’s Memorandum Opinion). 1 “Under Rule 54(b), a court may grant relief ‘as justice
requires,’” Ofisi v. BNP Paribas, S.A., 285 F. Supp. 3d 240, 243 (D.D.C. 2018) (quoting Capitol
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)), which means the court
must determine whether “reconsideration is necessary under the relevant circumstances,” id.
(internal quotation mark omitted). “[I]n general, a court will grant a motion for reconsideration of
an interlocutory order only when the movant demonstrates: (1) an intervening change in the law;
(2) the discovery of new evidence not previously available; or (3) a clear error in the first order.”
Murphy v. Exec. Office for U.S. Attorneys, 11 F. Supp. 3d 7, 8 (D.D.C. 2014), aff’d, 789 F.3d 204
(D.C. Cir. 2015) (internal quotation marks omitted).
Through the blizzard of words that is Plaintiff’s Motion, the court discerns three grounds
for reconsideration. First, Plaintiff contends that IRS Publication 5251, which was not previously
before the court, establishes that Section 6103 does not shield from disclosure materials relating
to the “intake” phase of a whistleblower’s claim; in other words, he argues, intake materials do not
1
See generally Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015) (distinguishing motions for reconsideration brought
under Rule 54(b), which pertain to interlocutory orders, from motions for reconsideration brought under Rule 59(e),
which are filed “only after the district court’s entry of a final judgment”); Lucas v. District of Columbia, 214 F. Supp.
3d 1, 4 (D.D.C. 2016) (“[I]nasmuch as plaintiff seeks reconsideration of a non-final order, Federal Rule of Civil
Procedure 54(b) governs, not Rule 60(b).”).
2
constitute “return information” as defined by Section 6013 and therefore should be produced. See
Pl.’s Mem. at 9–10, 16–17. Second, Plaintiff offers a 42-page declaration (including exhibits)
from a former IRS employee, Robert Gardner, which details Gardner’s efforts to secure
information about Plaintiff’s whistleblower claim. See id. at 10–12; see also Pl.’s Mot., Ex. A,
ECF No. 74-2 [hereinafter Ex. A]. And, third, he points to a different FOIA case against the IRS,
Crestek v. IRS, Case No. 1:17-cv-00200 (D.D.C.), in which he claims that the IRS has taken a
conflicting position with respect to Exemption 6 than it has here. See Pl.’s Mem. at 17–22. That
different position, Plaintiff maintains, bolsters the public interest in the records at issue here, which
concern a whistleblower’s “informational rights.” See id. at 22. None of these contentions,
however, move the court to alter its previous decision.
Publication 5251 is a three-page IRS guidance that provides a general overview of the
“whistleblower claim process” and answers common questions concerning such claims. See Ex.
A at 34–36. Publication 5251 does not support reconsideration for two reasons. First, the IRS
issued the version of Publication 5251 that Plaintiff cites in August 2016. See id. at 34. Thus,
Publication 5251 was available to Plaintiff when he responded to the IRS’s second motion for
summary judgment, filed on February 2, 2017, see ECF No. 52. The court need not grant
reconsideration based on arguments that were previously available, but not made, and the court
does not find that “justice requires” otherwise here. See Wesberry v. United States, No. 15-cv-
0825, 2018 WL 1524744, at *6 (D.D.C. Mar. 28, 2018) (“[I]t is well-established that motions for
reconsideration [under Rule 54(b)] cannot be used as an opportunity to reargue facts and theories
upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that
could have been advanced earlier.”).
3
Second, Publication 5251 does not, as Plaintiff insists, show that the court committed clear
error. If anything, it confirms the breadth of Section 6103 and the limited information available
to a whistleblower. The guidance states that, “[i]n general, the Whistleblower Office may only
tell whistleblowers if their claim is open or closed.” Ex. A at 35. The Office may also report
whether an award is payable and whether a claim was rejected or denied. See id. All other
information is off limits: “The Whistleblower Office will not disclose to whistleblowers whether
the IRS took actions such as an audit, a collection proceeding, or a criminal investigation. In
addition, the whistleblower office will not disclose the results of any actions from a taxpayer case
to a whistleblower.” Id. In light of this broad restriction on disclosure, it is mystifying why
Plaintiff would think that Publication 5251 demonstrates clear error. This court held that, unless
perfected, Plaintiff is not entitled to information regarding the whistleblower investigation,
including the dates, times, and locations of meetings, because it qualifies as protected “return
information” under Section 6103. See Goldstein II, 279 F. Supp. 3d at 184–86. Publication 5251
does not compel a different result.
The Gardner declaration likewise does not warrant reconsideration. None of the facts set
forth by Gardner constitute “new evidence,” as is typically required to justify altering the court’s
decision under Rule 54(b). See, e.g., United States v. All Assets at Bank Julius, Baer & Co., Ltd.,
No. 04-cv-0798, 2018 WL 1617693, at *4–5 (D.D.C. Apr. 4, 2018). Nor does any fact set forth in
Gardner’s declaration show that the court’s decision was clear error. 2
2
To be sure, a court may elect to grant a Rule 54(b) motion for reconsideration—even where there has been no
intervening change in law, discovery of new evidence, or clear error of law in the prior order—“if there are other good
reasons for doing so,” such as where the court “has patently misunderstood a party, has made a decision outside the
adversarial issues presented to the [c]ourt . . ., [or] has made an error not of reasoning but of apprehension.” Id. at *5
(third alteration in original) (internal quotation marks omitted). None of those factors, however, are present here.
4
Plaintiff’s reliance on Crestek v. IRS is equally bewildering. As noted, Plaintiff argues that
the IRS’s alleged inconsistent position in Crestek bears on the public interest in the whistleblower
investigatory records at issue in this case. But Section 6103 operates through FOIA Exemption 3,
see Church of Scientology of Cal. v. IRS, 792 F.2d 146, 149 (D.C. Cir. 1986), and Exemption 3
requires no public-private balancing, see 5 U.S.C. § 552(b)(3) (allowing an agency to withhold
records that are “specifically exempted from disclosure by statute”). Crestek is thus irrelevant to
this case.
Finally, the court addresses the IRS’s Cross-Motion for Clarification of the court’s ruling
concerning Item 8 of Plaintiff’s FOIA request. See Def.’s Br. in Opp’n to Pl.’s Mot. for Recons.
& in Supp. of Def.’s Cross-Mot. for Clarification, or in the Alternative, Mot. for Recons., ECF No.
77, at 11–13. The IRS asks “whether this Court is ordering the [IRS] to bear the burden that the
law places on requesters by submitting a declaration, if appropriate, that proves the absence of
Plaintiff’s perfectable interest.” Id. at 12. The court makes no such demand of the IRS. Its order
is straightforward: Plaintiff is entitled to records responsive to Item 8 if he can demonstrate a
“material interest” in those records per the IRS Code and attendant regulations. See 26 U.S.C.
§ 6103(e)(1)(E); Goldstein II, 279 F. Supp. 3d at 184–86. The court understands Plaintiff to have
perfected his request as to the records of certain taxpayers, such as the Samuel R. Goldstein Estate,
see Goldstein II, 279 F. Supp. 3d at 178, 186, and the Samuel R. Goldstein Living Trust, see id. at
180–81, 186. On the other hand, Plaintiff has not demonstrated a material interest as to certain
other taxpayer records, such as those of the SRG Investment Limited Partnership, see id. at 182–
83. Only the IRS knows, however, whether the investigative records responsive to Item 8 relate
to a taxpayer as to whom Plaintiff has demonstrated a material interest. See id. at 186 (“The court
cannot determine from the present record which specific taxpayers were the subject of the meetings
5
at issue and, correlatively, whether Plaintiff can perfect his request as to any meeting.”). The
agency, therefore, should determine whether any Item 8 records concern a taxpayer as to whom
Plaintiff has made a perfected request. If they do, such records should be released to Plaintiff,
unless their disclosure would reveal an examination or other inquiry of a taxpayer as to whom
Plaintiff does not have a perfected interest.
In summary, the court is not asking the IRS to prove that Plaintiff lacks a material interest
as to any particular taxpayer’s records responsive to Item 8. Rather, the IRS simply must determine
whether any responsive records relate to any taxpayers for whom Plaintiff already has carried his
burden of demonstrating a material interest and release those records, as appropriate. If Plaintiff
has not carried his burden of demonstrating a material interest as to another taxpayer’s records, the
IRS need not disclose the otherwise responsive information.
For the foregoing reasons, Plaintiff’s Motion for Reconsideration, ECF No. 74, is denied,
and the IRS’s Cross-Motion for Clarification, ECF No. 77, is granted. The IRS shall file a status
report no later than July 25, 2018, that updates the court on the release of records, if any, that are
responsive to Item 8.
Dated: June 25, 2018 Amit P Mehta
United States District Judge
6 | 01-03-2023 | 06-26-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4108169/ | J-S63042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KAREEM ALI GARRETT
Appellant No. 1684 EDA 2015
Appeal from the PCRA Order April 14, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0001998-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 16, 2016
Appellant, Kareem Ali Garrett, appeals pro se from the order entered
in the Delaware County Court of Common Pleas denying his first Post
Conviction Relief Act1 (“PCRA”) petition. This Court previously remanded
this matter for a determination as to whether Appellant is currently serving a
sentence of imprisonment, probation, or parole for the crimes he committed.
The PCRA court has supplemented the record with a letter it received from
the Delaware County Adult Probation and Parole Services indicating
Appellant’s maximum sentence in the above captioned case expired on
March 12, 2015. We conclude Appellant has not established his eligibility for
PCRA relief and affirm.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
J-S63042-16
The PCRA court summarized the relevant facts and procedural history
as follows:
On August 20, 2013, [Appellant] entered a negotiated
guilty plea to [d]efiant [t]respass and one count of
[h]arassment and was sentenced to a term of 6 to 12
months[’ imprisonment] followed by 1 year of probation.
On August 21, 2014 [Appellant] filed a timely [PCRA]
petition alleging (1) ineffective assistance of counsel, (2)
that his guilty plea was unlawfully induced, and (3) newly-
discovered evidence.
The [PCRA court] appointed counsel, Stephen D.
Molineux, Esq., to review [Appellant’s] PCRA petition.
Pursuant to [Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc)] , counsel submitted a “No
Merit” letter after determining [Appellant’s] PCRA petition
was meritless and filed a Motion to Withdraw As Counsel.
This Court dismissed [Appellant’s] PCRA petition without
holding an evidentiary hearing and granted Mr. Molineux’s
Withdrawal Motion. [Appellant] filed a timely Notice of
Appeal and Concise Statement of Matters complained of on
Appeal in compliance with Pa.R.A.P. 1925(b).
Trial Ct. Op., 7/31/15, at 1-2.
On October 26, 2016, this Court remanded the matter for a
determination of whether Appellant was still serving his sentence. In
response, the PCRA court supplemented the record with a letter, dated
November 1, 2016, from Thomas Hart, a pre-parole investigator with the
county’s probation and parole department. The letter, in full, stated, “Please
be advised that the maximum on docket 1998-13 expired on 3/12/15 and
the case was closed while [Appellant] was incarcerated at the SCI Houtzdale
serving a sentence under docket 3224-09.” Letter, 11/1/16.
-2-
J-S63042-16
Pursuant to the PCRA, a petitioner must “at the time relief is granted”
be “currently serving a sentence of imprisonment, probation or parole for
the crime” or waiting to serve the disputed sentence. 42 Pa.C.S. §
9543(a)(1)(i), (iii). Further, as soon as a petitioner’s sentence is complete,
he becomes ineligible for relief, regardless of whether he was serving his
sentence at the time he filed his PCRA petition. Commonwealth v. Hart,
911 A.2d 939, 942 (Pa. Super. 2006). Indeed, our Supreme Court has held
that to grant relief at a time when a petitioner is not currently serving a
sentence would ignore the plain language of the statute. Commonwealth
v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). Accordingly, if a petitioner is no
longer serving or waiting to serve a sentence for the crimes at issue, our
Courts lack jurisdiction and the petitioner’s PCRA petition must be dismissed.
Id.
In this case, Appellant was convicted in August 2013 and sentenced to
serve a term of six to twelve months’ imprisonment followed by one year of
probation. We note that in his initial PCRA petition Appellant indicated that
his sentence was to commence on August 20, 2013, but did not designate
whether he was currently serving, or waiting to serve, his sentence.
Appellant’s Mot. for Post Conviction Collateral Relief, 8/21/14, at 2.
Moreover, Appellant’s brief was not mailed from a prison. See Certificate of
Service, 3/11/16, to Appellant’s Brief (identifying address).
-3-
J-S63042-16
Thus, Appellant has not established he was still serving his sentence,
and the record compiled by the PCRA court suggests that Appellant’s
sentence expired during the litigation of the instant PCRA petition.
Therefore, we conclude Appellant failed to prove a threshold requirement of
eligibility for relief under the PCRA and affirm on that basis. See 42 Pa.C.S.
§ 9543(a)(1)(i), (iii); Ahlborn, 699 A.2d at 720; Hart, 911 A.2d at 942;
see also Commonwealth v. Beck, 848 A.2d 987, 991 n.8 (Pa. Super.
2004) (“we may affirm the decision of denial [of PCRA relief] if it is correct
on any basis”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
-4- | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4397234/ | NUMBERS 13-18-00258-CR & 13-18-00259-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GEORGE ANDREW DAY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
ORDER
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Order Per Curiam
These two causes are before the Court on the record and appellant’s brief.
Appellant’s consolidated brief was filed in both causes on October 24, 2018. The State
has not filed a brief in either cause. The Court, having fully examined the record and
appellant’s brief hereby ORDERS the State to file its brief with this Court on or before
June 12, 2019.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of May, 2019. | 01-03-2023 | 05-16-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4143408/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
F
Uwast ia pour opinion about this matbert”
opinion10. a-23884 of thh departme& holds tlmt
it is dhoretionarf vith the ooml~~iowrat oowt ai3to
vhether or not they rhnll fumlmh rultnble oifioes, f'urni-
twe, &atioaaryandblankm ~eo~wary 3.~ the performawe of
the duties of the county attorney. We emaloes herevS.tha
ao~f of mid apiaioa.
It la the opMoa of thh departaent that you have
aorreotly antmeW the above qwsttaa.
APPROVEDDEC 18, 1940
WtlrlAW
mNcuriruR?I
ATTORNPP GKXX?AitOF T;;AS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142398/ | OFFICE OF THE A?TORNEY GENERAL OF T
FE
AUSTIN
uiaae
t | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142351/ | Onidon No. O-GO02
63: Arrests - sczrchos vrithout
w?.rrazlt
- probable cause -
, faes.
Pcur request for ogdd.cm hm been redeived'azxl
~~~~s'ullg considor~~;bythis &psrtxezt. id quote frcxu
y:. .Qi‘ rs!&st 2x3fOllOix38
Y3evaral questionshave arisen in this
county relative to the,progorprocadtie to
be followed with ,refcrenceto'the ahacking
of triicksfor tha.purposeof ascertainingwhe-
the= or not the ro&stntion papors are being .'.'.
carried in the truclrs et all t-es, as re-.
'quire8by Article 827a, Sec. zj, Pi DC 1936, ~: ~.
an& also forthe purgoae of asc@dining
whetrrJcor oat the @xiv&s of said tmcks
have ,qbauffe>urs licenses,es roguired by law,
am.!tlrolo@l.ity of the procedure bein$"rol-
lowe by the polioe officers of th5s county ~.
in mk5ng those routlne cheeks.
YI6 that you my be ~05~ fe!+iar wlth
the~quostionothat hnve arisen we will state'
a.caso, which co believe involvee every point
on wh5ch we till ask your o~~inion:
"A deputy constcblestaticfis h&self on :
one of our busiest thoroughfares,the 8-e
boinc!n iZt,ai,o
highxmy between the Citic8 Of
ljeau&nt, Texas, and,Port hrtlmx, Texas, an&
flag &mn each OE~ ev&y truak or COI?imrCial
notor vohlole paasing'alongsaid hi&my.~ (Xt
t
_. ..,._-
‘d
i DoEonorcble
J. C. VOYLOS, X?~QCI
L7
!
~15.11
bo noted hero t!22tth03e trucks and
coxmeroialmotor VOliiCl?3 are cot ononly
violzltin.;
a5y'of'thels\:isof t?As S',ate,
such CL.3
s-kOdi.?#&run5i53 7:ithvutoufii-
ci-c: claaranco li::hts,ate;, but are be-
in; 3to;;yu for t&3 6315~:)tlr~>oce
of 3 rv*u-
tl~o check to act if the ra:istxtion papers'
ax-3in the trwks CC? wketk~r or not the
Crivars am In'px73oa3fonof n cbnrffcur*s
licoaso to oportitotha came),
wAfteb the truok ia ato,;p!cd
it io
s~x~xhwl tv 800 v&thor tke ro~s%m?t?tir;n
;>2poroare .io the n&c and t5o driver lo hsk-
od whathoy or not he hna 8 chouPi"our*s
license. IT the.re&stwtion pqcrn are
avt in the truck, or if t&e driver doss
nz-thave a cheuSfeurtsIiocnue, as reQalr%a
,by law, then and in thnt event the driver ~.
Is give5 a,ticket, such as is &.vcn in
i s$eclin~ cases;requiring the drivar to
a:Denr at a named Court, on a ~rtlcular.
dc.ts. The'oSficer'maklu~the arrest then
zc.csiato the JuctlWCourt an& in several
instances the drlver’of tSo mtor vehicle,
iVh0 has bce5 given a ticket, appears in
: Court on the eate named theroj.n,~enters
his plea oP,&ilty on& pays his U.50 an& L
costs. IE mm instancesno warrant of
arrest 'isever issued by the Justice of the.
Il:=ac'a
an6 in S&?m instmces the Justice
809s 5ot fswo a sub::oe.za Sor the w2Cnes~aes.
It is oftea the case t?xitY~!IEJ~
the Bol'cndant
qponrs he ;loaciqg.iZQ before the Justloo
ol"Paqoa jjlthe dbsanca US the arrest.-
02icer or any other Attne,saor wLtnesses.
"The qu8ntionsarinluy,.out of the abtm
stata pf facts,,and on rhich your opinion
. 13 raquosted,are:
"(1) Does a Sheriff, Zm~x&y Sxwlff,
Con&able, Deputy ConstabLe,City folice,
Cffioor or IIi@xjapPatrolmen hcve the
legal right to sto3 any motor vahicle, .
be it a.comz~crcialmotor vcbiclo or
othor.vlse,~unlonstha &river of said
.
Eor,orabls
2. C. Voylos, l'aze9 .'
-0tor vohlclo 13 o>clllyviolztir;::
sczo
la? 3.hv.lcwof the arrcstlr~ officer,
cr unless t,hoarrast:il~office? !x3
~robt:bloCQu.%¶to axto2the oarnOaad
sc::rchthe rchiclo to ascertain.x~hethor
ox cot rc&3tration ppers em hei2.r:
mrried, as requiraa by Article f327e,
Sec. 5, ?. c. 199S?
*cur e_Di-?i
on:
W0 find no ~rovlsfor ir.the l:lw:.ivk~
a~.;r
sf the P,aca OPficers.zUmi:above the
leg1 rf,+i to stop coy n5to-rvehicle uu1333
thq hzwo arobablo cause OCRunless a c?rivor.of
tlk3scmo Is violctic~ 3x33 low in their pp3-
senqo, such 'assp3eai22, r~z2i.C~TJithCUtClear- .
li@lt.s,atc. In Cornelius 03 2enrch ucd
to..23
5eizur0, Sooond Edition, Z,rgos41-42, the
author ~80s these words:
n"?!ithouta doubt, the abolition or
constitutionalrestraintsaC.ninst~un-
masorx~blo searches ana oofsuros would
be of assistance in detsoti~* ati appre-
hem¶ing violators of law -~~sosz3thing~
6&e:,tly.t0 be aesiroa; Buti on the
cthor hand, if 4:.o'fTlcarsof the law
':.ore given unlizAta& license to search
parsons; homes, ofilces., eutmobiles,
aa& effects mhonever they aeaire, the
nzt.ion vioaldbo sa%dlod.vAtha nui3ance
of the first m&tude which, in it- '
mlf, woula.tt?ndto brir,!: all 1m.s in-
to~disrep.ate.If, for exkm$.e (es has
Srequeatly beeh tho caso),~an over-
zaclous oifiaer shoulclotation hiasol~
on 0p.e of our trunk ~~&mc,:~s, ovar which
thousezds of &utozobiIwYtravel each &y,
stc? every oar en& search the occupants,
goatly to tha nnnoyama and huzallietlon
of mny innocent:peo:le,would not awh
a pcctioo tend to briJ:gunneoessarypro-
judice and oiliuaU~OC the low itself?'
.~onorabloJ. C. Voylc3, I'eg 4
Tlmro%3ro, 3.5our o_sinior.
Police offi-
ems have co l-g?1 r$:Lt to sto,;)
trucks, notor
vohiclos or ;ws3enAgor
cars la the vlayoutlin-
ed cibovo.
"(2) Cozs zay Li:?!icF:
C$$icor, and xiore
c3pcially t2030 .~:~~0ds::jov0,
ksv0 th0
ri.:htundsr t&o 1:2xns it 13 :aJ'witton
tc .:ivef:tiY+?t w?oroin the flrivoror
t.h3.zotorvo!:iclois required to apgenr
ir.Cyrtczt a later riatc,orce_ntthe via-
latioo for sgwdinr;P
"Cur Opinion:
T-l!0
find no ,orovisics
for thi3 proceaure
isthe Statxte3 for any violation of the hl@~
-cz:y ISY:S other thnn spobinc. Artic'lo792
:'.C. reads a3 folloxs:
.*'In0830 of a&y proon err&cd for
violntioq of.tbs.prcoedir~ artiolos ra-
.P.ttinzto.s:aod of rbhTclos, unloas such
mmon so 3rrosto& shall aci29cathat fit3
50 taken forth?TitbSaZo'ore a Co;urtof
c~~Faton~.j~~iedfctior:~~or aa imodiate:.
?x%arir*~,tho arrostlnC o~f'ica~'5hs1l
take tho liceme mmber, nazs.8 and'mka
of tho car,'t?.o r,om and address of'the ..'~
operator or driver ,theraof,u=a notiry
rich oprator or~ariver in writing to
e?pear before.a dez,l::antati Court of
cozsetent ji12l3Biction at~a tine and :
olac0 to be slmAkfod in suohvrltten
.;lotioawe+*.
"TS.9 ,$rticlc,i,lour o~inion,.olesrly.atatas
that a notice to a>sear~only a>>1103 in cpoedilig
02SQS.
"(3) If a ticket 1.3~ive.afor any
vfolatlon of the tmi'fic laws of thio
x2t0, otnnr tiii;Ll.for O~CCcliFl;, t.0 C.r:-
nesr in Court at a mm& &ate tharain
&cl the driver fail.3to end rofuaoe to
.cm.r~into Ccsc;;-t
on.:~.id &to, will hi3
failure to tqr,enrin Court be the basi3
OP th3 fil5.2; of.awthor co1+aint, for’~
fetiro to a?,car?
“Our .opition: I
**Ifw'I08r8 Gorract'in our opinion on
.2uStfCin,:;O. 2; that is, that th0 firIY%Stin~
officer ha8 no rl,#itto t7iv.efi~‘tlcket for any.
traffic 1aW violatim, other than for speed-,
i;e, thes it.ls our opzLaicnthat the ayrast
.is illo~xd and tiaximctiaa co varrant of
arrast is ,&sued the Justice of Peace could
:mt clxrjo for t&8 sa!ze,txr would~the ar-
rilstil?i,:
officer be kmtitled to an arrest fee.
"(5) If tho dof&ilant appeers in
COUi%, in rx%_?Ou3QtG n tiCkGt ,$Ven .'
to him for my troffia law ViObtiGn,
othor than spaeaing, and zhe arrestin;:
oirfaar 81s~ cppoars In Court at tbo
srh tim,.and no sub>oana has boon is-
saza by the Just&c 0: the Peace roqAr-
3.4;tho proeonce of the axresting offi-
CBY?, or anyother v:itnessos, weld the
arrest&q officer, m3el.y by his presence
in Court, be entitled to a WitaesS fee,
evan thoqh ho wns remdy a& wllli~~'to
testify in the case?
"12 GUI'OTXhliGLl th8 ClT!lBt MiZSillC&,
T.G&b:-,osnah&qy bsgrtissu.:drequiring the
~xosGnco.Githe armsting GffiCW, OP ailg
3tl:m i.litncss, iids~033 wi33enc8 in Court
xould not 8fititl8 hb (t&e &rreStinG OffiOor)
to e v:litnoss fim, avm tkc~~~h to stooa ready
end v~Uli.in~,tto tostlfy in ttc case. Arti-
cl0 iO80, Cod0 of Cr%insl Procmiure,retdo
as follo"xf3:
n%o"foss Call ba allovwd to a par-
3Gn aS~'iiitne32
fmS IUllt?SSsuch person
kas boon sub?oor?od,attached or racog-
.nihd aa d ~vGtJieas
in tFLecasf3,9
"(6) iMk3r the facts.'atstsd in *es-
tion 5; if the do,"onda?tis'in Court
aad has..notbefore bo'enso-god with a
warrant af arrant and a warrmt of ar-
rest is Lz the officar'*ahazds,~oan he
leglly serve tho defem2ant u3oq his
..ap_=ocrance
in cwrf and then ohar&e an
qrost Pee therein7
"Our'Opiniom
"If the warrant of.arrostham bean is-
~srlodend ls.in thahmC1R of the Gffictir,then
. ttio aur opinion th=:t'!lacan mr'v8 the same .
upon tko a~f&mt at tlmt tine,,vðer 216
b8 ilJCOUXt'GX &it'GUyOtht2l'
@.a@c8.
.
"(7) If ycu hol@,tbat police offi-
cers do net &IVO the.rin,htto stag
notor-uehioles,as cmtlined~fo Qxestion
Xc. 1, theo en&-in thut event woul& the .
officer so sto-r,pfng
cna sezmZxl.n~ the
t.rucks~endo'+er cotor.vabiclcobe
&.lt~ Of'tht3GffWX3a Of US&WfUl q- '
rost?.~
"Our Opinlont
~oGorG.Sls
J. C. Voylas, ?Gee 7
'_
wArtic 1169, mm1 Code, roads as fol-
1OWs:
"*False iqrinorzxentio the wllful
detention of ahother e.gain3this ccn-
rrcnt'and whora it is uot eqressly Gu-
thorized by'lav;,?.hethersuch dchontion
bo effect& by an msault, by octwl
violenao to ttm 176r30~, by tbzents or
by any other which restrainsthe srty
so detained frm reuoviog fro2 oae ?l.oce
to another as he rcay3ee pr0;er.l.
.
TLn view of this Sto.teit is our opi&
iGE tl.xtt the orfiaer would be guilty ot.tho
offense of fnlse inprfsonmnt in clakingthe'
arrost.as outlined in~QIe3tiGnEO* 1,"
Seotion.Ba pf Article 827a Vernon's Annotz?t,ed.
Texan Paal Cob, (tsamended by tho,Aats of 1941, 47th,Le@-
lature of Texas, reads as follorrs:
"S6C. 5% Upqn application for ragis-
'tration of'any ao?xmrcialnotor vehicle,
truck troator, trailor or seti-treilbr,the .
cippllcantshall deliver to,bhc Tax Collegtor,'
or.one of hi0 auly authorized deputies, an ..
affldevit &iIy sworn to berore an offiuer.au-
thorizea to e@.ministerocths, showing the walefit
of said vehicle, tha 32ax.imm l0ca to be.tmns-
ported th5roix2,end the total gross wel@t for
+hich 3nid vahiale is to bo rtqiisterod, whiah
nffidovit shall be,~lsapton.fiLe by the Col-
lector. The license reoeigt issued to the.
apglicnnt shall ~130 show stlidtot31 e;ro3s
wei&t for which 3aia vehicle 13 regiStered,
A copy OS sairlreceipt e&ill be anrried at .
all tines on any~such vshiale whil.8s&m ia
u?on the public highwxf. ..
rrPhacopy of tho reciistrotionliaense re-
colpt above reqtirad shall be admissible,in
evidenaain any cause in vihichtho gross-regis-
tered reiyhbtof such vahlolo is-an.ijSUe, 3od
s&311 ba prima facie eviUonce of tha gross
weight for which 3uch vehicle i3 re&stGred.
Suah,aogy of the rogiistretlonliaense receipt
'Donorable3. C. Voyles, Pege 8
shall be 8isplaycd.toany officer authorized
;;,;;Egrcathls,Act, upon reciuestby suoh
. :
The driver, o~mtr, cpomtor, or other
parson opc?atinS or driving cuch rehiclo,
fciliq to co~gly tith this provision of tfiis
Act, shall be S-uiltyof a xistdazeanor aud .
u2on conviction shell be fined in any sun
not ercccdln~ !%o HWlred (:~200,00) Dollars.W
Article 827a, Sactiou 0, VerE,on*sAnnotated Texas
Peal Cc4a, cs czeuded by the Acts of 1941, 47th Legislature
of Texas, treadsas folio-mr
"Sec. 0. Any licons0 ale wi3lghtinspec-
tor of the DeDnrtmontof.i%.ablic Safety, any
ti@:ag patrolma or ary sheriff or his duly
authorized deputy having reason to believe
ths% the Cross woi&t ai'a loa&ed.vehiclois
uulaprfulis 'authorizedto neigh the ame by
. mans ,ofportableor statlohary scales fur-
nish& or established.bpthe Department of
?ublio Safety, or cause the sane to be weigh-
odby tiny public weigher, aha to reguire
that such vehicle be driven to tho oearost ~.
available acaies in the dlreotion of uestiha~
tlon, for the purDos0 of wei&ing.. In the
event the &ross Wei&& ai any such vehicle e
bo fog& to exceed the mzim.m gross weight
authorizedby km, such Uxmse and weight
inspector, .hl@~my Eatrolmn, bheriff, or his '~
._ ,$ulyauthorize&a.eputyshall Emand anilrc-
wire the operator or ohwer thareof to WI- (
lood such.portionof the lead OQ my be.nat-
esscxy to deoreaso the gross w&&t of such
vehicle to tho.mzizn& Cross w&&it authorized
by law. Drovided, however, that if such loed.
cocsists 0%'livestock, Derlshablemerchandise,
0::Mrcbanaise that may be &maSed or daotroy-
e5 bythe weather, then such operator shall
be pamitted to proceed to the nscrest ptic-
tlcal unlontiingDoint in'tho &irection of
dssticationbosom discberginf; said excess
qcrgo. ?he officers nix%& heroin are the
only officers euthorized to enforce the pro-
visions of this Act."
zonom3la S. C. Voyles, ?eae 9
Prior to its irzx&:ent In 1941, the above quoted
s;otutsresd GS follO?vS:
'"Al%. owe, sec. 0. s&n:' liccnee end
ir;s?octorof '-;hc
-.73i;ktj StcrteXI.~hczyde-
ix-ir~~~
,-,:xt2a-rt, rsz3o;ito boliavo t.?xttba
:rOSS Y,X3i;+t Of (3 lOSk!d $6%C16 iS Ur?hV;-
ful, is Suthorized to xei~h 3~ C-ZX?G either
.bY93nns of aortz&le or sts:icci:ryScales,
cad to~reqcirot&t swfi vehicle be driven
tc '*h,s
Lxa-ffS$scslss La t&J ovsnt GUCb
scales SEc Within tv:O miles. The ina;cctor
f!zythen rcquiro the driver or operctor to
unload Izx&ictely such portion of the load
tismy be neceSsury to Qccrccoe the gross
xekght'ot Such vehicle to the maz&uxrngross
w&ht SpecIfIod by tl;Is>&,.*
The courts have not yet construed the 1941 amand-
ncntsto BoctIonS :.aSnd 6 of Article 02?r, supra. EO%6V6&',
tne cc,urtshave construed t.henbove quoted SeotIons'.whIah
~::'c)re
in effect Drier to the 1941 ~33ndi3ents. '.:
The c&,Seof DeShonyjYotor Freight LIneS, Inc. v.
EogaLs, ct al, 99 Sl %L (2d) 1033, held thnt n trucking corn-
wny wcs entitled to nn,order rcotrziningeheriff,~deputy
Sheriff,hi&:tiy.offIoer,~ 0onSbcbles, deputy oonstsblea,
zcd cousty otto~rneyfrom czraS;tieg~truck drivers and Leigh-
ins end'c~usfn~to be mel~hndtraoks for the >ux-goaeof aa-
certa5niq wheth& they vrcrelixded in 0XCCSf3Of 7,000 ?OUndS
s-iccothe Ste.tuta(t!lenin :orco B 327a, Sec. 6, prior to
the 1941 amondmant).conferredSuch.euthorityon 1IoenSo and
?!irii::;ht:
insspectors.The cs.m ix-Bnsd v. State, 96 3.~W. (2d) :
~&91,wnS aitad in,tha court*s ,ogis?ion. In the fic~daSSo,
the arrest w~a mado by a cocntxblowhom Judge~?5orrow of tho.
~'0x23 Court of Crizinol .&pgaels held v~cSwithout eutiorlty
t,o.azrcct without~%vcrmnt,~fc.trofuoel to drive truck to
sales to esc~tinin whothctrthe truck vz%ooverloaded,under
StetcteSvesting paoce officers with right to arrest wIthout~
xarr%;otIf breach of tha peaoe Is being co%I.tted in officers*
-preeezxe, the oporatfon of an overloadedtru’cl: not being
?or se % breech of the peacen. < .
'?!O qUot6 l'rOI2 JU&p Chrp'S .OophbQ (!?QXSS ~U~nms6
court')In the cnne of Dew Way Lumber Compeny v. ZUIth, 96
s. ‘i7.
(2d) 290, as f0110wS:
honorableJ. C. Vdyles, P@e 10
"The dcinnnt pur:,oneof the lams on-
acted on tf;issubject Is the safety of the
y.15110fro21injury ma 103s of life through
the operstion of motor vehicles on the!sub-
lit2hl&?rep. it is n zettitrof CO2?OIl~
ki3cl~~eago that nany parsons are injured, and
mung liv03 lost, thrsu::;h the operation of
notor vo!d.c133 OII the ;:ubllchi$r.z%ys. Thio
l?iT::.~OlSO b.23 for its ru~:sonable:urgoss the
potcction of the highxsys frozmthe opera-
-tion of ovarloadodtruaks thereonl~ Under
tl-clclw,officers d33igtsr:t3a to enforce the
rrcvlsions thereof shoul.8hzve the right to
&zzuxI that operators of motor vehicles
CM?I their yoraits fcslaod~byvlrtue of arti-
. cPe QJlb, v@thout a search warrant. ,tfit
x?re necessary that a sewoh,warrr3ntshould
b.erequirollto obtain such information,
one of the ~main~urpossu of tha law would .
ba nullified. ~If an ofi'ice~r authorized
to enforaa the lawapyroaches the driver
of o motor vohfole fox the pu~?posa of csaer:
teinlng if he has a per;ait.tooperate the ,
c'sm on the zublic hi,&~tqs, ana the driver
declines or refuses to show such permit, it
losic~iig r0ii0m that tie 0ffmr psOtid hav0
probable cause to ~belIevethnt tho motor
.' vehiole is being operate& 03 the ?ublia high;
whys in violation of law. Liketise, section
6, art, 827ai Vernoq*a Ann+ P. C., authorizes
831fnsgcctor to stop a vehicle and weigh ft,
,if he hns reason to b&love that its load ex-
oeeas that allow& by law; and, if the load
fs excessive, require the operator to roduoe.
it to the amount praaoribeaby the eat. It
clearly appears that this saotion of the stat-
ute aoes not prohibit the use.of motor vehl-
oles on the publio highways, but is merely
Q regulationof their use. Tlmrofore, iI
the offioer should have probable CQUSO to b'e-2
Ueve that a motor.vehlcleis being operated
withcut a permit, or tbat:it Is being opcr-
ated tith'an un&wi'ul:~loud,he'would hnva
the r&&t, without a search warrant to stop
the driver ana @restIon him about his ri&t
to operate a motor vehiole upon the publio
-
3s
no.?,orabl.e
J..C. Voyles, pege II
h:.&~ays, and, if need'&, asco?%alnwhether
the opcration.oSthe rzo-;orvohtcle is in
violetioa of law; ariOif such driver is oger-
a,tingthe rzotorvehicle ir:viel-tion of lav,
ar,-$sthFn,:Mlthouta menrrmt.~ To hold
othardse would recder iwffoctive the rea-
mw.ble and vho1eso.m LI;XGemctea 'fortho
pmO0tiOn 0f tn3 FJS~C ma th0 high~O~-~.~
?':e
quote fro& the case of 2001:v.'3tate, (Texas'
court tt Csinlug;lATpeals])EXI S..%. (26) 4C);as Sollowsr
*Vieflnci:roznthe tastiz.onythet this
IlEgector, c&tar hemi:;; tbZi3truck c.ouing,
flsshed his lisht anit?.irsctc~the arpellnnt
to drive to the side of tke rczd end be-
wai-@aa up] which the a~>ulkat readily
ax, nod.tifter~~~$h vk?l:.hbt
ha& been psoer- .:
talncd a>pellmt tqreab to drivs into .",an * ':
Xarcos, a short distance amy an?3be there
col&~oiionestntfooary soaloo, where then
cape result wan obtained. That thfs in-
sQector had authority,EO to do, 'a3find to '~
.be,h&I by.our Supeme Court in tho oaae
of 1Iew::'ay Lumber Co;v.'Sxisith,12B
92s. 173r.96 8. w.%2a 232, Ona in an ax- ’ .’ ~.
h.zustive,opirion by Juotioo sharp it is said, :
oh nce 290 of 96 9. i'l. 2d thoreof: '&ee-
vlsu, section.6, art. 8270, VpMon~s Ann..
3. C., authorizea on irs~octor to.stoD a
vohicle.fr,B veir& it, If ha has raaeon to
bsllbve that fts load exceeds thct oll.Wed:
by lam; and, if the load la excessive, re-
g&o the .operatorto reCuoa it to tho
ozmunt pesoribed by the act.. It cl3arly
anganrs that this seetion of the statute
cobs not'prohibit the use'of uiotor~~h.iolos ’
on the pblio PQhmys, but fs Eerely a
regulation of thair 1.133. Thorofora, if the
oiffoor should have 'probablecause to be-
,liovethatEa&otor vahlcle is being OPCtrQt-
oa wlthout'a portit, or thkt it Is beiw
0,33mtaa with an unmmiL load, hc would-
hme the r.ight without,u smrch warrant,.
.to stog the driver ana gu03t;iochim about
his right to operata 8 sotor vehicle U94n
Doxrnble J. C. Voylas, Fa60 12
tks gublic highways, artlib,
if mod be, as-.
czrt;in whothor the cporatitn of tho r?otor
vckicle is in violition of lm; aad if such
cLrivcris operatins the riotorvehicle lo
violation of law, ccrsst bin without a
.m:
t.v.?
._-_ Et . To hold othlcmlsowolil0romlor
*.-
inoffoctivotha IXx3Gnzblt3 sod v?holasono
law anacte8 for the 7rosoctionof tho sub-
lie aildthe h.tf$lrxp3.'
"T&s court has hold In TIaadVW-~Btato,
131 33s. Cr.,& 96, 96 9. Ii.26 5s1, thnt the
lo~inldxareho9 Avon th0 above txmtionob
Domrs as set forth in Art. 62?a, %x3. 6,.
cu,srz,to llceilseOna woizht inspeotorsof
thu ?:i&xay Departnmt only, au&that a
ccnstabla or other gabo officer ot the
estatehx no suoh powar. This opinion in
the l?oa% case ms cited and followed by
tho &??rillo Court OS Civil.Ap2aals in the
c&se of Do Shong Motor Proi&t Lines,
ICC. V. Bopkins, ot al, 39 So,a. 2d 1033,
vhore the freight lines we?.%saeklng an '
injunctioncgaainstHopkins, a aeppty she-
riff, mho xas tiei ing aa cauSiag b be
xvdghhe8appellantPs trucks for the pur-
pose of nsoertainingwhether or not aaPB
wars ovf3rloadeacIt tvaatherein held that-1
such officer Bid &ot have that powor, saB!e
huving bean lod@H alone.in guoh inqmo- .
t0rs.n
5% call your particularattention to the followLng
portion of Section 3s of Article 027a, supra, to wit:
*Such cozy of l&o registrstionliaense
roceiat shall bo disPlayod to any ori'icer
authorizoi!to enforcrsthisaot.lV
Ohvl&sly, the officers outhoZ%zed to enrorca the
have the:authorityto flag down or slgoal the.
act'17oul.d
o_caratorsor such vohi~lea to stop in or&r that such 0rri-' .,
cars could have the opDortun.ity to request the operator to ~.
display the re&strotlon reoeiDt for suoh vehlole. viehave
oonclude&that Soctiona Ba cjinb6 of Article 02'?a,Vr .L.I. P. C.,
sh~ulu be construed to&tlriaran8 that the orrlcers hamed in
saatfon 0 art3the drricm3 authorized to enforce Section 5a.
x?ocorable
J. C* Yoyles,:Pa$o I.3
Conference opbion Eo. 3058 of.this .dogar&tent
holds, anong othor things, that a constable is not entitled
to a foe for sumoning witnesses uselesshe actually -oned -
nalc?Y~ltnosses.
Ye a_uoto.frm o&&on No. 0-QG3 of this dopsrtmnt
as :0110ws .
%I answr to ymr TLestions (a) and (b)
of w,astion X0. I, the dotorzaination
or whether
or not tho mtorid wan under orrsst by the
constable dapondo upon the Sollowi5~issue of
fact:
**If the rcotorliot'
had attempted to
loam at the tim the ocnstable stopped
bin, would tho constabl,lo
have pamltted .'
.hirz
to loavo??
You am ret aoLfullg n&vised that it is
the o inlon of th8s dogartmat that if the abova
'questPon be anawared in tho mgative, the.qotor-
istwas under arrest. ,Sfthawabove question ba
anmxmd in the affirmtim, tho notorletwas
' not under arrest.. You am rurther respeotfully
a~¶viasdthat it is the opinion or this.depart-
"gent that if tho above guostion be ahswerad In
tha negative tha dzivor'was urrOorarregt, re-
&arKloss of whotfieror not the co56table took
the notorist'o bomLn
Tiequota fro3 ~opinionfib.O-2104es roiiowi3r
*It is a rga:unstLon
'offact as to whatliceOF
not thchicense and Esol~ts Inspootorarrested
the truck driver at the tium he stocped him and .
gave hlzna ticket,. If tha'truck &river was,ar-
rested by the License and W:aights&ispoctor it
m3 tpe d,utyof tha Lioonso and weights Inspec- .e
tor to carry the truck drivar. before the near-
est magistrate an8 thla duty oould not be par-
formed by the &vin,",oE:a 'ticket'unauthorized
by law. It hey&i& not arrest ths truck driver
thnre~was no~nocossltg or lnwful reason for hipr
.attomptedoffort to requlra the truck 8rivar to
appear in court at.a luter date upon the pur-
.
fibnorable
Y. C. Voyles, Page 14
portea authority,oSa *t$ckot'. IS the truck
driver was arrested and relecsed without author-
ity of law, he would psrhaps occupy the same
status 0s *an escaped prisoner*. Eut regara-
less of whether or not the truck driver V.U an
'escaped prisoner' IS the co%a'tzbleexec'uted
a valid warrtintOS nrrost l?gal-lyissued by
the Justioe of the ?eace by.ar?estlngsaid
truck driver at a later date he would be en-
titled to an arrest See an4 his groper mll’e-
E&e. IS he executaa vella subpoenes for wit-
ness& in the case lawf'ul~yissued.by.the
Justi'oeOS thenP&ace he would be entitled~to
his Sees ana mileage for-executingsuch pro6
oess.*
owe enclose herewith copies or said opinions Sor
your iniormiition. ..~
Xe respectfullycall yoUr attention.tothe follow-'
lngprovisions of-House B1l.l.
20; 47th Legislature OS Texss,
known as the Drivei@*e.Lioense
Law, oobified as -4rtiole~6687b,
Vernon'sAnnotatea.TexesCisil Statutes, to wit: : '. '.'.
weotion 1. .DeS+nition of ~ras,ana. :
phrases. ,~~.:
.
w(m) *Ope&t&;r ZTery peYr.son,
other
than a ohauffeur or oolt?ntsxcial
operator;whn
is in actual physioal control of a,motor vehi-
cle u?on a highway.
w(n) WommerolaJ.o;lerator.*Every per- .~
son who is.the Urlver of a motor vehicle fle-
signed or used Sdr the'transportationOS pro-'
perty, inclutlinfj all vehioles used for delivery
purposes, while da. yTehicleIs being used for
commeroitilor aellvery'purpose~.'
w(o) '%hauSSeur~&f.'~~
‘EPeryperson'whois :
or for
the driver SOT wage~c%~~:oompensation,
fare, OS,a motor :y,ehi@le
.,
:.trf3nsporting
passe?- '.",
gers. L:-
”
. . .
,. . ;, - :
HonorableJ. C. Voylea, Rags 15
Weotlon 13: License to be carried and
exhibited on a-a.
"Every licensee shall have his dperator*s,'
coznorolol operator's or chauffeur'slicense in
his inmediate ~ossssslon et all times when OD-
crating a noto; vehicle and shall display th;
szme. uuon domona of a magistrate or any.ofSioer
OS a Court of coaoetent jurisdictionorany
oaaoe oSSlcer.W Itindersooring ours)
Article 36, Fernon's Anootatea Texas Code of Crim-
inal Rrocoaure, reads as follows:
"The following are 'peace ofSic'ors:*the
sheriff and his deputies, constabls, ths mar-
shal or policemenbS an incorgorateatoxm or I
city, theofficers, non-commissionedoffi- '.i
/
cers and privates of the State ranger force,
ana nny private person speciallyappointed to
.exacute.oriminalprocess.*
Tho case-of Xllson v. Stcte, (Texas Court of Grim-
irtalAppeals) 36 3:-W. (2d) 733, h01Os tht a acputy constable
Is a peaoe officer. 'Thiscase holan~thatalthou$ deputy
constablesati not named In~Ar'tiole 36, Y. .I.C. C. I?.,supra,
as peace offioers, they are goace officers by virtu8.oS
Article 6869& Revissd'CivilStatutes of Texas.
Ue answer your questions as follows:
i. In your first question you.reSer to Section 5
of Article 827a,,1936. Undoubtedly,you mean to refer to
SectionSa,.~which was amended by tha 47th Legislature. It
Is our opinion that a consttible,-deputyconstableanQ city
police oSSioar a0 not have authority to st0p.a motor vehiole
for the purpose of aeman&lng the motorist to Oisplay to
such offiaer the registrationlicense receipt for suoh auto-
mobile required under Article 827a, Section Sa, sugra, re-
gardless of whethar or not such officer had probable'cause
to bel.lsvethat such motor vehlole or motorist had no such
registrationpapers. It Is our ,Surtheropinion that under
Section 3a, supra, the other officers named in your request,
to wit, sheriff,aeguty shertfS~an&highway patrolman,would
have the authority.to stop and request o?orators of the
vs~olos namsd in the statute to show or display to such
officer the,reglstrationlicense receipt for such vehicle,
'.
,
HoxC8ble J. C. Voyles, Page 16 *
.
an& ‘l-trzouldnot'be necessary So& such officers to have.
,probable cause to believe that such motor vehlole or motor-
ist had no such registration-&]!ers. IS the motorist re-
fused to display such registratfonpapers to the sheriff,
ds;!:tysherlSS or highway patrolnan be would be subject to
a fine and such refusal would, xe think, in a proper case
coxtltute probable cause authorizing such officer to
search tke vehicle. It is our further opinion that all
peace officers, Including ths officers named In your re-
quest, to wit, sheriff, dapgty sheriff, constable,deputy
canstsble,city tolice officer and,highwaypatrolman have.
the legal right to stop and request motorists to display
to any of such officers, their operator's,caqerclal
ogerator*sor chauffeur'slicense, and It would not be
recesaarySor.such officers to.heve probnble cause to be-
lieve that such motorists did.not have such licenses...IS
the motorist refused to dls:lag,suchlicense or licenses
to a peece offioer and cozld'not produce his license in
court at ihls trial he would La subject to a Sine and such
refusalwould, we think, in a &roper case oonstituteprob-
eble .causeauthorizingeuch peace officer to searoh the
motor v~shioX0. IS a~constable,deputy constable or city po-
lice oSSioer.shouldstop-an operator&~oommsrolal.motor
vehitile-to aemena the display of his commercial operator's
license,and the operator proal;loss his proper license suoh
officer.has.noauthority to demand.thatthe operator display
his registrationpapers required..under Section Lia,supra,
and would have no authority to search the operatorlsvehlole
for such papers, OS course, suoh,peaoeoffioers would alao
have euthority to make such other searches an8 seizure8 _,
upon probable cause as the -lawauthorizes.
2. We agree with your answer to the second ques-
tion.
'3. We agree with your answer to the third quee-
tion. .
. 4. Th~"'a~sw~~ to your fourth questionwiil aegena
upon the facts 8s ,to.whotheror not an &rest was made by
ths officer under the rule.&aid down &inopinion No. O-963 and
,upon the further question as to whether the arrest wlthout
wcrraht was authorized py law. Is the oSSioer.=a6 an arrest
for an offense u&es oiroumstsuoeswhloh the law authorized
him to make without warrant he would be entitledto an 82-
rsst See. IS nQ.arrest was maa? 05 IS en illegal a.rrest,was
made no arrest fe:?would be &ue ths,uSSloer.
EoaorableJ. C..Voyles,Page 17
5. In ansimr to yaur fifth question, it Is our
opbion under the.fncts stated tht the officerwould not
be eattitladto a vJitnessfee, reg.ardless.ofwhether the alp-
rest was legal or illegal. -(Ue do rot pass on the question
of i?hetheran arrest was made aud if made, mhather legal or
illc~al,as re.do not Save suSficlcntfacts.to.passon these
questions.)
6. In ansmer to your sixth question it Is our
opinionthat if the officer made a le;;al.S.arrestrrithout
QZrritnt he would have already earnap-hig'arrestfee and it :
v,ouldnot be necessary to serve.tha defkaknt with a warrant
in order to earn h¶.sfee. If &heoffitier.made'noarrest or
made an illegal arrest YJithoUtwarmznt, he;kould,.ofcourse,
not be entitled to an arrest fee; bowaveg, if he subsequent-
ly made a legal arrest.heiiJould be.entftledto an arrest fee.
He zould, however, in no case,be entitled to more than one
.~ arrest fee. : ./
.’
7. .Your seventh..qu&stion
is rather broad and we
pass on same. The innocence
officer v~ill'dapendupon all
In each case. .',
. :
.I "Very truly yours
. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126538/ | Reversed and Remanded and Opinion Filed February 8, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01361-CV
BILLY D. BURLESON, JON J. MARK, AND CRAIG A. BENNIGHT, Appellants
V.
COLLIN COUNTY COMMUNITY COLLEGE DISTRICT, Appellee
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-04944-2014
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Whitehill
Opinion by Justice Whitehill
This is a whistleblower case brought by three police officers, Billy Burleson, Jon Mark,
and Craig Bennight (collectively, the Officers) against their employer Collin County Community
College District (the College) for adverse personnel action against them after they reported
crimes. In a plea to the jurisdiction, the College claimed that sovereign immunity defeated
subject matter jurisdiction because the College did not take adverse personnel action against the
Officers. The College further argued that Mark and Burleson did not meet the jurisdictional
prerequisites for a whistleblower grievance. The trial court granted the plea.
In two issues, the Officers now challenge the trial court’s rulings and assert that the trial
court should have made findings of fact and conclusions of law.
As discussed below, we conclude that the trial court erred by granting the plea to the
jurisdiction because the undisputed facts as developed at this preliminary stage show that for the
purposes of the College’s plea to the jurisdiction there is a fact issue regarding whether the
College’s alleged retaliations were adverse personnel actions. We also conclude that the record
shows that (i) Mark initiated the jurisdictionally required grievance regarding his claim that he
received a retaliatory adverse personnel action for reporting an illegal incarceration and (ii)
Burleson’s allegations state a whistleblower claim because they allege a causal connection
between his report to outside law enforcement and the alleged retaliation.
Accordingly, we reverse the trial court’s order and remand for further proceedings.
I. Background1
The Officers are employed by the College, which is a public community college district.
In 2014, Bennight and Burleson were investigating the theft of books from the College bookstore
when they began to suspect a scheme to defraud the College, corruption, and a cover-up by high
ranking officials. They reported violations of the law related to the bookstore, including
coercion of a public servant, public corruption, tampering with evidence, and tampering with a
witness to various law enforcement authorities.
Bennight and Burleson also reported to the College’s police chief, Michael Gromatzky,
that employees were stealing from the bookstore, but they were ordered to close their
investigation. After the College took action that Bennight and Burleson deemed retaliatory, they
filed whistleblower grievances with the College. Those grievances were denied.
Mark also complained to Gromatzky about illegal activity. Specifically, he sent an email
to Gromatzky and others complaining that he was ordered to lock an intoxicated person in the
closet for four hours and that this constituted the crime of official oppression. Mark filed a
whistleblower grievance with the College after it took action he believed was retaliatory. The
grievance was denied.
1
We derive this statement of facts from the Officers’ petition and the College’s plea to the jurisdiction evidence.
–2–
The Officers then sued the College alleging violations of the Texas Whistleblower Act.
The College responded by filing a plea to the jurisdiction, claiming that (i) there were no adverse
personnel actions as the Act requires, and (ii) Mark and Burleson failed to file a whistleblower
grievance. To support its plea, the College filed the affidavit of Norma Allen, the College’s
Associate Vice-President for Human Resources and Organizational Development. Her affidavit
attached policies, job descriptions, and employment records maintained by the College. The
Officers responded by arguing that the College did not (i) allege any pleading deficiencies or (ii)
adduce any evidence that negated their factual allegations.
The trial court conducted a hearing and later signed an order granting the plea.
Although the Officers requested findings of fact and conclusions of law, no such findings were
made.
The Officers timely appealed, and the trial court clerk’s and reporter’s records were
thereafter filed. The original reporter’s record, however, ostensibly did not include an amended
exhibit that the trial court admitted as an addendum to the plea to the jurisdiction.
The Officer’s appeal presents two issues:
1. The trial court committed reversible error by granting the College’s plea to the
jurisdiction because the trial court had jurisdiction over the Officer’s
Whistleblower Act claims; and
2. The trial court erred by not issuing findings and conclusions despite the Officers’
timely request and reminder.
For the reasons discussed below, we conclude that the Officers met the jurisdictional
prerequisites for filing a grievance and the evidence does not conclusively negate the allegations
that the College engaged in retaliatory adverse personnel actions against the Officers after they
made Whistleblower reports. Accordingly, we do not reach the Officers’ second issue.
The parties also disagree whether our scope of review includes a record supplement the
College filed after the trial court granted the College’s plea and after the Officers perfected their
–3–
appeal. We agree with the Officers that the College’s supplement is not within our scope of
review because a party may not unilaterally supplement an evidentiary record.
II. Analysis
A. Unilateral Supplementation of the Record
As a preliminary matter we address a dispute regarding the extent of the record before us.
At some point after filing its plea to the jurisdiction, the College discovered that it had not filed
with its plea documents referred to as Exhibit E. At the plea hearing, the College asked the court
to accept a document marked as Exhibit E that the College proffered as a corrected version of the
materials that it had intended to include with its plea. The trial court accepted the proffered
Exhibit E and “admitted it” as an “addendum.” That document, however, was not included in
the trial court record delivered to our clerk as part of the appellate record.
The College thereafter discovered that omission and, without prior trial or appellate court
leave, filed in the trial court a document captioned “Addendum To Defendant’s Plea To The
Jurisdiction.” The College then filed a supplemental clerk’s record containing that “Addendum”
and urges us pursuant to TEX. R. APP. P. 34.6(e) to consider this material over the Officers’
protest. We disagree with the College for several reasons.
First, Rule 34.6(e) provides the procedure to be followed when a party challenges the
accuracy of the reporter’s record after it has been filed in the appellate court. See TEX. R. APP.
P. 34.6(e). The rule provides:
(e) Inaccuracies in the Reporter’s Record.
(1) Correction of Inaccuracies by Agreement. The parties may agree to correct an
inaccuracy in the reporter’s record, including an exhibit, without the court
reporter’s recertification.
(2) Correction of Inaccuracies by Trial Court. If the parties cannot agree on
whether or how to correct the reporter’s record so that the text accurately
discloses what occurred in the trial court and the exhibits are accurate, the trial
court must–after notice and hearing–settle the dispute. If the court finds any
–4–
inaccuracy, it must order the court reporter to conform the reporter’s record
(including text and any exhibits) to what occurred in the trial court, and to certify
and file in the appellate court.
(3) Correction After Filing in Appellate Court. If the dispute arises after the
reporter’s record has been filed in the appellate court, that court may submit the
dispute to the trial court for resolution. The trial court must then proceed as under
subparagraph(e)(2).
But it is not clear that the rule applies because the document that the Addendum ostensibly
addresses is part of the clerk’s record instead of the reporter’s record. And the hearing transcript
does not specify whether it was a document admitted for purposes of correcting the clerk’s
record or as a standalone exhibit to be included in the reporter’s record. The distinction matters
because Rule 34.6(e) concerns inaccuracies in the reporter’s record, not the clerk’s record.
Second, the College implies that the evidence was lost or destroyed, but there is nothing
to establish that premise. There is also no indication that there was an agreement of the parties
as to the lost evidence or that the issue was submitted to the trial judge for resolution. This is not
a case where the reporter had the exhibit but did not include it in the record. Rather, it appears
that the reporter did not have the amended exhibit to include in the record.
Third, assuming this involved a reporter’s record question, we cannot consider a
correction to the reporter’s record [formerly called the statement of facts] unless and until it has
been agreed to by the parties or approved by the trial judge. See First State Bank & Trust Co. v.
George, 519 S.W.2d 198, 208–209 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.).
Moreover, the evidence here was not submitted in a supplemental reporter’s record, but rather as
an after-the-fact unilateral addition to the clerk’s record. There is nothing to establish that these
materials are the same materials tendered to and considered by the trial court.
The College relies on Amador v. State, 221 S.W.3d 666, 667 n.48 (Tex. Crim. App. 2007)
to argue that appellate courts must construe the rules liberally. A liberal construction, however,
does not mean that we disregard the rules in their entirety. Under these circumstances, the
–5–
supplemental clerk’s record is not properly included in our consideration of whether the College
met its burden.2
B. Did the trial court err in granting the plea to the jurisdiction?
The Officers argue that the trial court had jurisdiction over their whistleblower suit
because they met the jurisdictional prerequisites for a whistleblower grievance and the College
failed to establish as a matter of law that there was no adverse personnel actions. We agree.
1. Standard of Review and Applicable Law
A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman v.
Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). If a governmental unit has immunity from
suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95
(Tex. 2012). We review de novo a plea questioning the trial court’s subject matter jurisdiction.
See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A governmental unit’s plea to the jurisdiction may challenge either (i) whether the
petition adequately alleges facts supporting the trial court’s subject matter jurisdiction or (ii) the
existence of jurisdictional facts. Id. at 226–27. Unless the party contesting subject matter
jurisdiction challenges and conclusively negates a plaintiff’s jurisdictional allegation, the court
must assume that fact to be true for jurisdictional purposes. Jones v. City of Dallas, 310 S.W.3d
523, 529 (Tex. App.—Dallas 2010, pet. denied).
When, as here, the governmental unit challenges the existence of jurisdictional facts and
the parties submit evidence relevant to that challenge, we must consider that evidence when
necessary to resolve the jurisdictional issues raised. Miranda, at 227–28. We must also take as
true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve
2
The materials at issue pertain to Bennight’s May grievance. But even if we considered these materials, it would not change the outcome.
–6–
any doubts in the nonmovant’s favor. Id. at 228. If the evidence raises a fact question on
jurisdiction, the trial court cannot grant the plea, and the factfinder must resolve the issue. Id. at
227–28. On the other hand, the trial court must rule on the plea as a matter of law if the evidence
is undisputed or fails to raise a fact question. Id. at 228. This standard generally mirrors that of
a summary judgment. Id.
Generally, governmental entities are immune from suit and liability under the sovereign
immunity doctrine. State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009). And sovereign immunity
from suit deprives a court of subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004) (emphasis added).
The Whistleblower Act, however, waives immunity from suit to the extent a
governmental entity is liable under the Act’s provisions. See TEX. GOV’T CODE § 554.0035. But
a plaintiff must properly allege a violation of the Act for immunity to be waived. Lueck, 290
S.W.3d at 881.
The Whistleblower Act protects “a public employee who in good faith reports a violation
of law by the employing governmental entity or another public employee to an appropriate law
enforcement authority.” TEX. GOV’T CODE § 554.002(a). An appropriate law enforcement
authority is one who is a part of a state or local governmental entity or of the federal government
that the employee in good faith believes is authorized to (i) regulate under or enforce the law
alleged to be violated in the report or (ii) investigate or prosecute a violation of criminal law. Id.
Here, the College did not challenge whether the Officers’ petition states sufficient
jurisdictional facts and the College’s plea evidence provides the relevant evidence. Thus, the
issue is whether the College’s evidence conclusively negates the Officers’ allegations of an
adverse personnel action in retaliation for reporting of an illegal act, or whether the evidence,
–7–
when viewed most favorably to the Officers, is sufficient to at least raise a fact issue regarding
whether the alleged retaliation constitutes an adverse personnel action.
2. Was there an adverse employment action against the Officers?
a. Introduction.
The College maintains that the trial court lacked subject matter jurisdiction because it
conclusively established that there was no “adverse personnel action” as the Act requires to
waive sovereign immunity.
The Texas Whistleblower Act defines “personnel action” as “an action that affects a
public employee’s compensation, promotion, demotion, transfer, work assignment, or
performance evaluation.” TEX. GOV’T CODE § 554.001. But the statute does not define what
constitutes an “adverse personnel action.”
In Montgomery County v. Park, 246 S.W.3d 610, 614–15 (Tex. 2007), the Texas
Supreme Court adopted, with some modifications, the United States Supreme Court’s test for
title VII retaliation. Id. at 615 (citing Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53
(2006)). The Park court stated that “for a personnel action to be adverse within the meaning of
the Act, it must be material, and thus likely to deter a reasonable, similarly situated employee
from reporting a violation of the law.” Id. at 612.
This standard’s purpose is to allow claims based on retaliatory actions “likely to deter”
reporting of governmental law violations while weeding out “petty slights” and “minor
annoyances.” Id. at 614–15. The test accounts for the fact that an employer’s actions could be
material in some situations, but immaterial in others. Id. at 615. For example, a schedule change
may make little difference to some employees, but may matter enormously to a caregiver with
school age children. See id. (citations omitted). Whether an action is adverse within the
–8–
meaning of the Act is generally a question of law, although a factfinder must decide disputed
issues of predicate fact. Id.
Park identified nonexclusive factors to consider when determining whether a personnel
action is “adverse” within the Act’s meaning, including whether the personnel action negatively
affected the employee’s (i) prestige, (ii) opportunity for advancement, (iii) working conditions,
(iv) pay or income, or (v) ability to obtain outside employment. See id. The “presence or
absence of any one of these factors, however, is not dispositive.” Id.
As discussed below, we conclude the College did not establish as a matter of law that
there was no adverse personnel action against the Officers.
b. Mark
On April 10, 2014, Mark sent an email to Gromatzky and others (including the College
president) reporting that he was ordered to lock an intoxicated person in a closet for four hours
and that this constituted the crime of official oppression. Six days later, Mark was “written up”
with a form entitled “Employee Coaching Form.” The form contains the following boilerplate
language:
Constructive Feedback: Be specific, describing the job responsibilities or
behavior that need to change and how the employee needs to change to meet
expectations. (Note: Employee Coaching is not considered formal discipline.
However, an employee’s failure to meet and sustain acceptable performance or
behavior may result in formal disciplinary action in the future.)
The form identifies the “specific results to be required for acceptable improvement” as:
“Effective Immediately, Officer Mark must follow all Collin College Police Department policies
and procedures . . .” and concludes that “Any future violation of the same or similar nature will
result in disciplinary action up to and including termination.”
Although the form is dated April 16, Mark was not given a copy until May 15, when he
was also told that he would be assigned to “deep nights due to the violations claimed in the
–9–
coaching report.”3 The next day, Mark filed a whistleblower grievance with the College. The
grievance was denied.
Relying on the verbiage in the standard form, the College argues that employee coaching
and constructive feedback do not constitute adverse personnel action as a matter of law.
Although the College cites several cases to support its argument, none of them are whistleblower
cases with similar facts, and none hold that a written reprimand can never be an adverse
personnel action as a matter of law. See, e.g., Niu v. Revcor Molded Products Co., 206 S.W.3d
723, 732 (Tex. App.—Fort Worth 2006, no pet.) (retaliation case with no evidence that
reprimands were related to termination finding that “taken by themselves” reprimands did not
rise to the level of adverse employment action); City of Dallas v. Giles, No. 05-15-00370-CV,
2016 WL 25744, at *4 (Tex. App.—Dallas Jan. 4, 2016, no pet.) (mem. op.) (memo to
employee’s supervisor about failure to follow procedure but with no further action not adverse
employment action).
The College also relies on Harrison v. Corrections Corp., 476 F.App’x 40, 44–45 (5th
Cir. 2012), an unpublished Fifth Circuit opinion holding that an employee suffered no adverse
personnel action when he was reprimanded and transferred to another department. Id. Noting
that the employee testified that the reprimand was “fair,” the court reasoned that “a reasonable
employee would not be dissuaded by a reprimand and punishment he considered to be fair.” Id.
Here, Mark did not admit that being written up was fair. Notwithstanding decisions
concluding that a reprimand was not adverse under the facts of a particular case, the standard for
what constitutes an adverse personnel action is not as rigid as the College suggests. As the Niu
court observed, the standard is objective and the standard is general “because the significance of
3
Deep night shifts run from 6:00 p.m. to 6:00 a.m.
–10–
any given act of retaliation will often depend upon the particular circumstances, ‘context
matters.’” Niu, 206 S.W.3d at 731 (citing Burlington, 548 U.S. 53).
For example, in City of El Paso v. Parsons, 353 S.W.3d 215, 227–28 (Tex. App.—El
Paso 2011, no pet.), the court held that the evidence was sufficient to establish adverse personnel
action when a firefighter was transferred to a less prestigious position. Id. Even though the
firefighter received no pay reduction or job title change, his responsibilities were reduced and he
was moved from the training academy to headquarters. Id. In considering the totality of the
circumstances, the court concluded that the firefighter was subjected to adverse personnel action.
Id. at 238.
Accordingly, we examine Mark’s reprimand in context. Although the reprimand was
entitled “coaching,” and purported to give constructive feedback, the overall tone suggests
something more. The form states that it is not “formal” discipline, but also warns that further
infractions may result in termination. Therefore, it threatens negative repercussions regardless of
whether it is formal or informal discipline.
Moreover, the reprimand accompanied an undesirable shift change that Mark was told
resulted from the reprimand. Under the totality of these circumstances, we cannot conclude as a
matter of law that these actions would not deter a similarly situated employee from reporting a
violation of law.
c. Bennight
Bennight filed two grievances with the College, one in May and another in July. The
evidence concerning the May grievance, however, is included in the supplemental materials that
are not properly part of the appellate record. Therefore, we do not consider this evidence in our
analysis.
–11–
Bennight’s July 17 grievance complained that he learned on July 4 that his fall schedule
had been changed and he would be required to work “deep nights”4 He was also being
transferred to a different campus. Bennight attached to that grievance a copy of his previous
schedule as well as the new one.
Bennight further said that he was hired as an investigator and could not perform his
duties for that position while working the deep night shift because he could not file cases with
the district attorney when the courts are closed. He also said, “I believe my transfer and change
in shifts are retaliation for my good faith reports to outside law enforcement agencies of
significant thefts and possible corruption within Collin College.”
The College relies on one sentence in the Allen Affidavit to establish that Bennight
suffered no adverse personnel action. That sentence states, “the document submitted by Mr.
Bennight as part of his grievance was apparently one of several drafts, and no schedule changes
or transfers have been finalized, communicated, or implemented for the 2014–2015 academic
year.” According to the College, this evidence conclusively establishes that no schedule change
happened. We disagree.
An affidavit’s purpose is to set forth a definitive statement of facts based on personal
knowledge. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Although Allen
generally states that she has personal knowledge of the facts as the records custodian, her
statement concerning Bennight’s schedule is not definitive. To the contrary, the use of the word
“apparently,” renders the statement equivocal and conclusory and implies something less than
personal knowledge. An affiant’s understanding does not equate to personal knowledge. See
Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Conclusory statements
4
His regular schedule had been Wednesday from 8:00 a.m. - 4:00 p.m., Thursday from 6:00 a.m. - 2:00 p.m. and Fridays and Saturdays
from 6:00 a.m. to 6:00 p.m.
–12–
are not competent evidence in a plea to the jurisdiction. See Strother v. City of Rockwall, 358
S.W.3d 462, 470 (Tex. App.—Dallas 2012, no pet.).
In addition, Allen’s statement that no schedule changes had been communicated simply
contradicts Bennight’s statement rather than establishing the absence of communication as a
matter of law. If the evidence raises a fact question, the issue must be resolved by the factfinder.
Miranda, 133 S.W.3d at 227–28.
The College also claims that the evidence establishes that there was a
“miscommunication” about the schedule. In support of its argument, the College relies on a
letter from the College’s counsel asking for information on how Bennight was told that his shift
would be changed and where he obtained the schedule he attached to his grievance. In that
letter, counsel describes the situation as one of “miscommunication.” Counsel’s self-serving
characterizations, however, do not prove that a miscommunication actually occurred. If
anything, the letter suggests that a shift schedule change was communicated, albeit erroneously,
and thus demonstrates the absence of conclusive evidence that Bennight’s schedule change was
not implemented and communicated to him. Thus, the College failed to establish as a matter of
law that there was no adverse personnel action against Bennight.
d. Burleson
In January or February 2014, Burleson reported to Gromatzky that employees were
stealing more than $1,000,000.00 from the college bookstore. On March 7, Gromatzky ordered
him to “close” his investigation of the bookstore theft. That same day, Burleson reported the
crimes of coercion of a public servant and public corruption to outside law enforcement
authorities.
On March 18, the College changed Burleson’s schedule from the 10:00 a.m.- 6:00 p.m.
shift to the 2:00 p.m.-10:00 p.m. shift and removed him from “flex time.” Burleson filed a
–13–
whistleblower grievance on March 26 for this alleged retaliation. The College denied the
grievance.
The College relies on the Burleson grievance hearing officer’s findings attached to the
Allen affidavit to show that there was no adverse personnel action. The findings say, “according
to the records, it appears Burleson was ultimately not assigned [to the new schedule] . . .
Gromatzky indicated that he instructed Hogan not to change Officer Burleson’s schedule . . . .”
We are not persuaded by this argument. As the Officers argue, the hearing examiner’s
findings are not competent evidence.5 The records referenced are not part of the record, so there
is no basis for his conclusion. See Riner v. Newman, 353 S.W.3d 312, 321 (Tex. App.—Dallas
2011, no pet.) (conclusory statement is one that does not provide the underlying facts in support
of the conclusion). As previously noted, the use of the word “apparently” is equivocal and
conclusory. Conclusory statements are not competent evidence. See Strother, 358 S.W.3d at
470. Moreover, that Gromatzky told someone not to change the schedule does not conclusively
establish that it did not occur.
The Officers’ live pleading asserts that Burleson’s schedule was changed and he was
informed that he would no longer have flex time, and the College failed to conclusively
controvert these allegations.
The College further contends that the loss of flex time is not an adverse personnel action.
According to the College, “as a matter of policy it is outside of the statute’s intended reach to
cause a governmental entity to be responsible to pay . . . for its employee’s lost opportunity to
earn compensation for outside part-time work . . . .” Policy considerations, however, exceed the
scope of our review. The Legislature is best suited to weigh the conflicting public policies
5
The Officers also objected to the evidence in the court below.
–14–
associated with waiving immunity. See Tex. Nat. Res. Conserv. Comm’n v. Davy, 74 S.W.3d
849, 854 (Tex. 2002).
The record reflects that Gromatzky allowed Burleson to work a flexible schedule because
he was aware of Burleson’s precarious financial situation following a divorce and the fact that
without additional part-time income Burleson would be unable to survive financially. Burleson
also specifically quantifies at least one instance of lost part-time income resulting from being
changed from flex time. But the loss of additional income is not the only negative impact
Burleson identifies. Burleson’s grievance also says that Gromazky was aware that Burleson has
three young children, and his time with them is limited because of the divorce. Forcing him to
work the new schedule would reduce that time even further.
As the Burlington court noted, a schedule change that might “be immaterial in some
situations is material in others.” Burlington, 548 U.S. at 69; see also Montgomery Cnty. v. Park,
246 S.W.3d 610, 615 (Tex. 2007). Here, there is at least a fact question about the materiality of
Burleson’s loss of flex time. Under these circumstances, we cannot conclude that the College
established that there was no adverse personnel action as a matter of law. See Jones, 310 S.W.3d
at 529
The College also alleges that there is no causal connection between Burleson’s report to
outside law enforcement and the alleged retaliation by the College police chief. See Cnty. of
Bexar v. Steward, 139 S.W.3d 354, 358 (Tex. App.—San Antonio 2004, no pet.). Specifically,
the College claims that the alleged retaliation occurred on February 19, 2014, but Burleson did
not report to outside law enforcement agencies until March 7, 2014.
The College relies on a paragraph in Burleson’s grievance stating that,
“All of this began on February 19, 2014.” Burleson then describes a telephone conversation with
–15–
Gromatzky that occurred the day after he met with the College president about the bookstore
theft. According to Burleson, Gromatzky was screaming, cursing, and making wild accusations.6
The same grievance, however, also states that Burleson’s schedule was changed and he
was removed from flex time on March 18 and 19, which occurred after the March 7 report to
outside authorities. Therefore, despite the reference to historical mistreatment, Burleson’s
grievance states the causal connection required for a Whistleblower claim. See Canutillo Ind.
Sch. Dist. v. Farran, 409 S.W.3d 653, 656 (Tex. 2013) (to show causation must demonstrate
discriminatory conduct after reporting a violation); see also City of Fort Worth v. Zimlich, 29
S.W.3d 62, 69 (Tex. 2000) (reassignment to low-level security duty after making report showed
causation).
Because the College did not conclusively establish that there was no adverse personnel
action against any of the Officers, the trial court erred in granting the plea to the jurisdiction. We
thus sustain the Officer’s first issue.
3. Did Mark submit a grievance that comports with his petition?
The College also argues that Mark did not meet the jurisdictional prerequisites for a
whistleblower suit because his grievance did not address the actions he complains of in his
original and amended petitions. Specifically, the College maintains that the lawsuit concerns the
bookstore theft. But Mark’s grievance also complained about other matters.
A claimant must “initiate action under the grievance or appeal procedures” of his
governmental employer before filing suit under the Whistleblower Act. See TEX. GOV’T CODE §
554.006(a); Mata v. Harris Cnty., No. 14-14-00363-CV, 2016 WL 675379, at *3 (Tex. App.—
Houston [14th Dist.] Feb. 18, 2016, no pet.). Compliance with section 554.006(a)’s initiation
6
The College argues that this abusive behavior does not constitute adverse personnel action, but we do not understand the Officers’
appellate argument to assert that it does.
–16–
requirement is a jurisdictional prerequisite. See Tarrant County v. McQuary, 310 S.W.3d 170,
174 (Tex. App.—Fort Worth 2010, pet. denied); see also TEX. GOV’T CODE § 311.034
(“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity.”).
While Mark’s grievance may not pertain to reporting theft at the bookstore, the pleadings
reflect that the lawsuit is not limited to this allegation. And it is not accurate to state that the live
petition does not match the grievance. Specifically, Mark’s May grievance states that he sent an
email reporting that he had been ordered to lock an intoxicated person in a closet for four hours
and this constituted the crime of official oppression. The grievance also says he was written up
for having sent the email, which write up said that “Any future violation of the same or similar
nature will result in disciplinary action up to and including termination.”
Likewise, the amended petition asserts:
On or about April 10, 2014, Officer Jon Mark reported to Collin College Police Chief
Gromatzky and Collin College Director of Public Safety, Ed Leathers, that certain laws
were being violated at the College. . . . Specifically, Officer Mark reported, as stated in
his grievance, that there was an order to lock an intoxicated person in a closet for four
(4) hours and then release them. . . . . Officer Mark informed Grozmatzky and Leathers
that this was a violation of the individuals rights and was “Official Oppression” . . . . .
Soon after Officer Jon Mark made his reports, Defendant immediately began to [subject]
Officer Jon Mark to . . . retaliation. . . .
Officer Jon Mark was retaliated against by Defendant and suffered the following adverse
personnel actions: . . . On or about May 15, 2014, Officer Jon Mark received a retaliatory
reprimand, write-up, or coaching form, dated April 16, 2014 which stated that Officer Jon
Mark had allegedly violated policy and that “Any future violation of the same or similar
nature will result in disciplinary actions up to and including termination.”
Because the grievance gave notice of the same allegations in the lawsuit, we conclude
that Mark complied with the jurisdictional prerequisites for a whistleblower suit regarding those
circumstances.
–17–
D. Did the trial court err by not making findings of fact and conclusions of law?
We have resolved the Officers’ first issue in their favor. Therefore, we need not also
consider whether the trial court erred by not making the requested findings of fact and
conclusions of law. See TEX. R. APP. P. 47.1.
III. Conclusion
We have concluded that the trial court erred in granting the plea to the jurisdiction. We
thus reverse the trial court’s order and remand for further proceedings consistent with this
opinion.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
151361F.P05
–18–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BILLY D. BURLESON, JON J. MARK, On Appeal from the 416th Judicial District
AND CRAIG A. BENNIGHT, Appellants Court, Collin County, Texas
Trial Court Cause No. 416-04944-2014.
No. 05-15-01361-CV V. Opinion delivered by Justice Whitehill.
Justices Bridges and Lang-Miers
COLLIN COUNTY COMMUNITY participating.
COLLEGE DISTRICT, Appellee
In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion..
It is ORDERED that appellants BILLY D. BURLESON, JON J. MARK, AND CRAIG
A. BENNIGHT recover their costs of this appeal from appellee COLLIN COUNTY
COMMUNITY COLLEGE DISTRICT.
Judgment entered February 8, 2017.
–19– | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4108080/ | This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. No. 35,633
5 GEORGE A. TRUJILLO, SR.,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Fred T. Van Soelen, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 Jacqueline R. Medina, Assistant Attorney General
12 Albuquerque, NM
13 for Appellant
14 Bennett J. Baur, Chief Public Defender
15 Santa Fe, NM
16 for Appellee
17 MEMORANDUM OPINION
18 VIGIL, Chief Judge.
19 {1} The State appeals from the district court’s order suppressing evidence gathered
1 during the execution of a search warrant. This Court issued a notice of proposed
2 disposition in which we proposed to affirm. The State has filed a memorandum in
3 opposition, which we have duly considered. Unpersuaded, we affirm.
4 {2} The State raised a single issue in its docketing statement, contending that the
5 district court erred in granting Defendant’s motion to suppress evidence based on the
6 officers’ failure to comply with the knock and announce requirement. [CN 2] Based
7 on the totality of the circumstances in this case, we proposed to affirm the district
8 court’s suppression order. [CN 2] See State v. Attaway, 1994-NMSC-011, ¶ 22, 117
9 N.M. 141, 870 P.2d 103 (holding that the reasonableness of a search and seizure under
10 Article II, Section 10 of the New Mexico Constitution generally necessitates that
11 officers entering a residence knock and announce their identity and purpose), modified
12 on other grounds by State v. Lopez, 2005-NMSC-018, ¶¶ 13-20, 138 N.M. 9, 116 P.3d
13 80; see also State v. Jean-Paul, 2013-NMCA-032, ¶ 7, 295 P.3d 1072 (stating that
14 failure to comply with the knock and announce rule can result in suppression of
15 evidence seized). Specifically, we were not convinced that the State demonstrated a
16 justification for the noncompliance that would render the officers’ forcible entry into
17 Defendant’s home reasonable under Article II, Section 10. [CN 6] See State v.
18 Halpern, 2001-NMCA-049, ¶ 9, 130 N.M. 694, 30 P.3d 383 (“When the police have
19 not complied with the knock and announce requirement, the State bears the burden of
2
1 proving justification for noncompliance.”).
2 {3} In its memorandum in opposition, the State continues to argue that the officers
3 were justified in dispensing with the knock and announce requirement because
4 knocking and announcing their presence under the circumstances would have been
5 futile. [MIO 8, 10] See State v. Vargas, 2008-NMSC-019, ¶ 11, 143 N.M. 692, 181
6 P.3d 684 (holding that compliance with the knock and announce requirement is
7 excused if officers have a reasonable suspicion that knocking and announcing their
8 presence would be futile). The crux of the State’s argument is that Defendant—the
9 sole occupant of the home—was taken into custody prior to the entry, so any actions
10 taken by officers to then knock and announce their presence to an empty home would
11 have been futile. [CN 4]
12 {4} In our notice of proposed disposition, we observed that “the futility exception
13 applies under circumstances in which it is reasonable to believe that the occupant of
14 a home knows the identity of the officers and their purpose for being at the premises
15 and nevertheless affirmatively refuses to permit the officers to enter.” [CN 5-6
16 (quoting Jean-Paul, 2013-NMCA-032, ¶ 13)] We also noted that Jean-Paul went on
17 to state that Vargas does not “sweepingly dispense with the knock-and-announce
18 requirement any time an occupant of a premises knows that the police are outside” and
19 that “New Mexico has only applied the [futility] exception when there has been an
3
1 affirmative act of refusal by an occupant of the premises because such action more
2 clearly demonstrates that an occupant does not intend to voluntarily permit the police
3 to enter than does a mere brief period of inaction.” [CN 6 (quoting id. ¶¶ 14, 19)]
4 {5} In this case, after watching Defendant’s home for approximately forty-five
5 minutes, officers observed Defendant arrive at the home. [CN 2] The officers
6 approached the home and made contact with Defendant, who was still standing in his
7 driveway behind his vehicle. [CN 2] Defendant was immediately taken into custody.
8 [CN 2] At the same time, other officers used a battering ram to gain entry into
9 Defendant’s home, damaging the front door and door frame. [CN 2-3] On these facts,
10 we suggested in our calendar notice that it did not appear that Defendant knew the
11 identity of the officers or their purpose and authority for being at his home. [CN 6]
12 The State takes issue with this suggestion, arguing that Defendant was aware that
13 officers were present in his yard at the time he was taken into custody. [MIO 11] Thus,
14 the State contends that Defendant had actual knowledge of the identity of the officers,
15 and that he essentially had notice of their purpose because the officers he observed
16 were approaching his home with a battering ram. [MIO 11] While the State might well
17 be correct with respect to Defendant’s knowledge of the officers’ identity, we remain
18 unconvinced that he knew of the officers’ authority to enter his home—pursuant to a
19 valid search warrant—simply by virtue of the presence of the battering ram. It was not
4
1 until later—after the door was breached with the battering ram—that Defendant was
2 given a copy of the search warrant. [MIO 12] Thus, we are not convinced that both
3 prongs—knowledge of the identity of the officers and knowledge of their
4 purpose—were met.
5 {6} Nonetheless, even if we were to assume that the State is correct that Defendant
6 had knowledge of both the officers’ presence and purpose, we remain unpersuaded
7 that noncompliance with the “rule of announcement[,]” Attaway, 1994-NMSC-011,
8 ¶ 22, would have been futile under the circumstances. As we stated in our calendar
9 notice, compliance with the rule of announcement—not to the empty home, but
10 directly to Defendant—would have given Defendant the option of voluntarily granting
11 the officers permission to enter the home, by providing keys or otherwise, thus
12 obviating the need for the officers to forcibly enter the home via battering ram. [CN
13 5] Viewed in this light, we indicated that we were not convinced that compliance
14 would have been “a meaningless and redundant formalism that would not have
15 furthered any of the interests underlying the rule[.]” Vargas, 2008-NMSC-019, ¶ 17
16 (internal quotation marks and citations omitted). Thus, we proposed to conclude that
17 absent an affirmative refusal by Defendant to permit the officers to enter his home
18 before the officers forcibly entered, compliance with the rule of announcement was
19 not futile. [CN 6] See id. ¶ 11(stating that the knock and announce rule requires that
5
1 law enforcement be denied admission prior to forcibly entering closed premises); see
2 also Jean-Paul, 2013-NMCA-032, ¶ 9 (recognizing that one of the purposes of the
3 knock and announce rule is “preventing the needless destruction of property”).
4 {7} The State acknowledges that Defendant did not affirmatively refuse the officers
5 entry into his home. [MIO 13] However, the State argues that Defendant could not
6 affirmatively refuse because (1) he was not inside the home and could not have
7 refused their entry if they knocked and announced, and (2) he had a panic attack when
8 approached by the officers. [MIO 13] With respect to the State’s first argument, we
9 are not persuaded. Although Defendant was not inside the home, he still could have—
10 had he been given the opportunity—complied with the law and avoided the
11 destruction of his property by rendering a house key to the officers. See Jean-Paul,
12 2013-NMCA-032, ¶ 9 (“The rule serves a number of additional purposes, including
13 preventing the needless destruction of property, reducing the risk of violence to both
14 occupants and police, and permitting an opportunity for the occupants to comply with
15 the law.” (citation omitted)). Notably, the out-of-jurisdiction case cited by the State,
16 United States v. Dunnock, 295 F.3d 431 (4th Cir. 2002), involved circumstances
17 similar to those in the present case and only serves to underscore this point. In
18 Dunnock, officers arrested and questioned the defendant outside his home prior to
19 using a battering ram to forcibly enter his home. Id. at 433. The court upheld the
6
1 forcible entry, relying in part on its observation that the officers in that case twice
2 asked the defendant for a key to the house or if anyone was inside, and that his silence
3 in response to the questions effectively constituted a refusal of entry. Id. at 435. Such
4 opportunity was not afforded Defendant in the present case, nor was such refusal
5 made, and we are therefore not convinced by the State’s citation to Dunnock that our
6 proposed disposition was incorrect. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24,
7 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary
8 calendar cases, the burden is on the party opposing the proposed disposition to clearly
9 point out errors in fact or law.”).
10 {8} Lastly, with respect to the State’s argument that Defendant could not have
11 refused because he was having a panic attack at the time he was detained by the
12 officers, we first note that neither the district court’s decision letter containing its
13 findings of fact [RP 148-50], nor either party’s proposed findings of fact [RP 111-14
14 (Defendant’s Proposed Findings of Fact and Conclusions of Law); RP 125-29 (State’s
15 Proposed Findings of Fact and Conclusions of Law)], make any mention of a panic
16 attack. Given our standard of review, with appropriate deference toward the district
17 court’s factual findings, we refrain from conducting further analysis as it pertains to
18 this additional fact not found by the court below. See State v. Paananen, 2015-NMSC-
19 031, ¶ 10, 357 P.3d 958 (“Appellate review of a motion to suppress presents a mixed
7
1 question of law and fact.” (internal quotation marks and citation omitted)); see also
2 State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183 (recognizing that the appellate
3 court reviews “factual matters with deference to the district court’s findings if
4 substantial evidence exists to support them, and it reviews the district court’s
5 application of the law de novo”).
6 {9} In summary, we are not convinced that our proposed disposition in this case
7 was incorrect, and we remain unpersuaded that the State demonstrated a sufficient
8 justification for dispensing with the knock and announcement rule.
9 {10} Accordingly, we affirm.
10 {11} IT IS SO ORDERED.
11 __________________________________
12 MICHAEL E. VIGIL, Chief Judge
13 WE CONCUR:
14 __________________________
15 JAMES J. WECHSLER, Judge
16 __________________________
17 LINDA M. VANZI, Judge
8 | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4403588/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3476
TRACY D. SHIPMAN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 16 C 50016 — Philip G. Reinhard, Judge.
____________________
ARGUED FEBRUARY 22, 2019 — DECIDED JUNE 5, 2019
____________________
Before RIPPLE, MANION, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Tracy Shipman appeals the dis-
trict court’s denial of his petition for collateral postconviction
relief under 28 U.S.C. § 2255. When Shipman pleaded guilty
to drug charges in 2003, the district court sentenced him un-
der the then-mandatory Sentencing Guidelines. Because Ship-
man had three prior “crime of violence” felony convictions,
the district court sentenced him as a “career offender.”
2 No. 17-3476
U.S.S.G. § 4B1.1 (2002). 1 The career-offender provision of the
Guidelines defined a “crime of violence” in U.S.S.G.
§ 4B1.2(a)(1)–(2). Two passages in that guideline are at issue
here: the enumerated-offenses clause, and the residual clause.
On appeal, Shipman argues the Guidelines’ residual
clause is unconstitutionally vague. We agree, a conclusion
that follows directly from our decision in Cross v. United
States, 892 F.3d 288 (7th Cir. 2018). Indeed, Cross abrogated the
rationale supporting the district court’s dismissal of
Shipman’s petition for collateral relief. With that issue re-
solved, the case hits a snag: the record does not conclusively
show whether Shipman was sentenced under the residual
clause or the enumerated-offenses clause. We therefore re-
mand this case for further proceedings on the merits of Ship-
man’s § 2255 petition.
I. BACKGROUND
Because Cross was decided nearly seven months after the
district court issued its dismissal order, we summarize the
facts and proceedings in this case only to the extent necessary
to address the issues presented on appeal. 2
Shipman pleaded guilty in 2003 to conspiring to manufac-
ture and distribute methamphetamine in violation of
21 U.S.C. § 846 (2000). His presentence report used the 2002
Sentencing Guidelines Manual, which at that time required
1Unless otherwise noted, all references to the Guidelines are to the
2002 United States Sentencing Guidelines Manual.
2The district court issued its dismissal order on November 20, 2017.
Shipman filed a timely notice of appeal on December 5, 2017. Cross was
decided on June 7, 2018, while Shipman’s appeal was pending.
No. 17-3476 3
district courts to increase the offense level of a “career
offender.” U.S.S.G. § 4B1.1. A defendant qualifies as a career
offender if: (1) the defendant was at least 18 at the time of the
instant offense of conviction; (2) the offense of conviction is a
“crime of violence or controlled substance offense”; and (3)
the defendant has “at least two prior felony convictions of ei-
ther a crime of violence or a controlled substance offense.”
§ 4B1.1.
When Shipman was sentenced in 2003, the Guidelines’
career-offender provisions defined a “crime of violence” (in
relevant part) as:
[A]ny offense under federal or state law, pun-
ishable by imprisonment for a term exceeding
one year, that—
(2) is burglary of a dwelling, arson, or ex-
tortion, involves use of explosives, or oth-
erwise involves conduct that presents a
serious potential risk of physical injury to an-
other.
U.S.S.G. § 4B1.2(a)(2) (emphasis added). Subsection (2) con-
tains both the “enumerated-offenses clause” (non-italicized
text) and the “residual clause” (italicized text).
The probation officer calculated a Guidelines sentencing
range of 262 to 327 months’ imprisonment, based in part on
Shipman’s designation as a career offender. Shipman’s age
(35 years) and this drug charge supplied the first and second
predicates for the career-offender designation. His three prior
Arkansas convictions for “residential burglary” in 1986 and
1987 satisfied the third predicate. Shipman did not object to
the report’s career-offender designation or suggested
4 No. 17-3476
sentencing enhancement. The district court adopted the
presentence report’s findings and calculations, classified
Shipman as a career offender, and sentenced him to 262
months’ imprisonment. Neither the presentence report nor
the district court explained whether Shipman’s career-of-
fender designation rested on the enumerated-offenses clause
or the residual clause.
A succession of Supreme Court decisions followed
Shipman’s sentencing. First, the Supreme Court rendered the
Guidelines “effectively advisory” in United States v. Booker,
543 U.S. 220, 245 (2005). About a decade later the Supreme
Court struck down the Armed Career Criminal Act’s (ACCA)
residual clause as unconstitutionally vague. Johnson v. United
States, 135 S. Ct. 2551, 2257, 2563 (2015). 3 Then, in Welch v.
United States, 136 S. Ct. 1257, 1265 (2016), the Supreme Court
held that Johnson applied retroactively on collateral review.
Within one year of the Supreme Court’s decision in Johnson,
Shipman petitioned for relief under § 2255.
At this point, a word on § 2255 procedure is helpful. Sec-
tion 2255(f)(1) establishes a “1-year period of limitation”
within which a federal prisoner may file a motion to vacate,
set aside, or correct a sentence. In most cases, the one-year pe-
riod begins to run when the judgment becomes final.
Shipman invokes § 2255(f)(3), which sets a one-year filing
deadline for postconviction relief starting from “the date on
which the right asserted was initially recognized by the
3 See Johnson, 135 S. Ct. at 2564 (citing 18 U.S.C. § 924(e)(2)(B)(ii) (2012)
(ACCA residual clause) (counting as a violent felony any crime that “oth-
erwise involves conduct that presents a serious potential risk of physical
injury to another”)). The ACCA’s residual clause used identical language
as employed in U.S.S.G. § 4B1.2(a)(2).
No. 17-3476 5
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.”
Shipman argued the Supreme Court’s decision in Johnson
recognized the right he asserted in his petition: to be resen-
tenced because a vague residual clause fixed his term of im-
prisonment. Shipman’s petition, however, was not limited to
a residual clause challenge—he claimed his drug sentence
was improperly enhanced under the residual clause and enu-
merated-offenses clause of the Guidelines’ career-offender
provisions.
Shipman’s residual clause challenge was straightforward:
a sentence under the Guidelines’ residual clause is unconsti-
tutional because that clause is identical to the ACCA’s resid-
ual clause stricken in Johnson. Shipman’s second claim—that
his burglary convictions do not qualify as predicate offenses
under the Guidelines’ enumerated-offenses clause—was
more intricate, relying on a chorus of additional Supreme
Court decisions.
Those arguments made, Shipman’s case was put on hold
while multiple cases worked their way through the courts,
among them Beckles v. United States, 137 S. Ct. 886 (2017). In
Beckles, the Supreme Court held Johnson does not apply to sen-
tences enhanced under post-Booker advisory Guidelines. Id. at
895.
After Beckles, the district court lifted the stay and signaled
its intent to deny Shipman’s petition. The court observed that
“following Beckles, there appears to be no legal basis” for
Shipman’s void-for-vagueness challenge under Johnson, but it
offered Shipman an opportunity to respond. Shipman argued
6 No. 17-3476
Beckles applied only to prisoners sentenced under the advi-
sory Guidelines (post-Booker), not the mandatory Guidelines
(pre-Booker).
Shipman failed to persuade the district court, which
denied Shipman’s petition as untimely. That court ruled a
defendant may rely on § 2255(f)(3) for timeliness purposes
only “if the defendant’s entitlement to relief … is so evident
that it can no longer be considered an ‘open question.’” In the
district court’s view, after Beckles it remained an open ques-
tion whether Johnson’s reasoning extends to the pre-Booker
mandatory Guidelines. 4 From that premise, the district court
concluded Johnson did not commence a one-year limitation
period, making Shipman’s petition untimely under
§ 2255(f)(1). In concluding the petition was time-barred, the
district court did not reach the merits of Shipman’s claims.
Although the district court dismissed Shipman’s petition
as untimely, it granted him a certificate of appealability on the
issue.
II. DISCUSSION
We review the district court’s denial of Shipman’s § 2255
petition de novo. D’Antoni v. United States, 916 F.3d 658, 662
(7th Cir. 2019). Because Shipman filed his petition more than
one year after his judgment became final, he must show the
Supreme Court has “recognized” a new right to obtain
4See also Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring in
judgment) (observing that Beckles’ holding leaves open the question
whether pre-Booker Guidelines can be challenged for vagueness under due
process principles).
No. 17-3476 7
postconviction relief. § 2255(f)(1), (3). Shipman again points to
Johnson, and justifiably so.
While Shipman’s appeal was pending, this court decided
Cross, which held: “Under Johnson, the guidelines residual
clause is unconstitutionally vague insofar as it determined
mandatory sentencing ranges for pre-Booker defendants.” 892
F.3d at 291. A petition challenging a career-offender enhance-
ment under the mandatory Guidelines’ residual clause is
timely under § 2255(f)(3) if it was filed within one year of
Johnson. Id. at 294. Because Shipman met that deadline, his
petition was not untimely.
We next assess whether we can resolve this case on the
merits. A prisoner is entitled to a hearing on a § 2255 claim
“[u]nless the motion and the files and records of the case con-
clusively show that the prisoner is entitled to no relief … .”
§ 2255(b). In other words, Shipman gets a hearing unless the
record before us conclusively establishes he is not entitled to
relief. First, we address Shipman’s residual clause challenge,
and then turn to his challenge of a sentencing enhancement
under the enumerated-offenses clause.
Shipman contends that, after Johnson and Cross, his Arkan-
sas burglary convictions no longer fit under the Guidelines’
residual clause. The government objects, arguing the district
court classified Shipman’s burglary convictions as crimes of
violence under the enumerated-offenses clause, not the resid-
ual clause. Even if classified under the residual clause, the
government asserts Shipman failed to raise a void-for-vague-
ness challenge when sentenced in 2003, and so procedurally
defaulted on this claim. We start with the government’s pro-
cedural default objection.
8 No. 17-3476
In Cross, we held petitioners sentenced under the Guide-
lines’ residual clause (in its mandatory form) can demonstrate
the requisite cause and prejudice to excuse procedural
default. Cross, 892 F.3d at 294–96. Thus, if Shipman’s burglary
convictions were classified under the residual clause, the gov-
ernment’s procedural default objection cannot stand under
Cross.
As for Shipman’s claim, Johnson and Cross are of no help
to him unless he was sentenced under the residual clause. Sec-
tion 2255(f)(3) does not require Shipman to prove at the outset
that Johnson applies to his situation. Cross, 892 F.3d at 293–94
(holding an alternative interpretation of § 2255(f)(3) “improp-
erly reads a merits analysis into the limitations period”). That
said, neither Johnson nor Cross cleared a path to challenge
every sentence under the mandatory career-offender
Guidelines. See Sotelo v. United States, No. 16-4144, 2019 WL
1950314, at *6 (7th Cir. May 2, 2019). Shipman must still “claim
the benefit of a right that the Supreme Court has recently rec-
ognized.” Cross, 892 F.3d at 294. “Under Johnson, a person has
a right not to have his sentence dictated by the unconstitu-
tionally vague language of the mandatory residual clause.”
Id. So Shipman must assert precisely that right for Johnson and
Cross to apply.
In any event, we cannot make that determination because
the district court never reached the issue. At Shipman’s
sentencing, the district court made no mention whether the
burglary convictions rested on the enumerated-offenses
clause or the residual clause. Shipman’s presentence report is
similarly unavailing. Although the report concludes Shipman
is a career offender under § 4B1.1, the report neither cites
§ 4B1.2(a)(2) nor explains which career-offender provision
No. 17-3476 9
was applied. Without knowing which provision the district
court relied on to classify Shipman as a career offender, we
cannot assess the merits of Shipman’s claim under Johnson
and Cross.
Shipman’s second claim—that his Arkansas burglary
convictions do not qualify under Guidelines’ enumerated-of-
fenses clause—presents more detailed factual and legal ques-
tions. His argument takes aim at the Arkansas burglary
statute in effect when he was convicted in 1986 and 1987,
arguing it does not qualify for federal sentencing enhance-
ments.
A state crime may qualify as a predicate conviction for
federal sentencing purposes “only if the elements of the state
crime mirror, or are narrower than, the elements of the ge-
neric crime.” United States v. Elder, 900 F.3d 491, 501 (7th Cir.
2018) (citation omitted). When Shipman was sentenced, the
enumerated-offenses clause listed “burglary of a dwelling” as
one of several offenses constituting a crime of violence under
the Guidelines’ career-offender provisions. § 4B1.2(a)(2). The
Supreme Court defines “generic burglary” as “an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 598 (1990). The Arkansas burglary statute,
however, included vehicles as “occupiable structures.” See
Julian v. State, 298 Ark. 302, 303 (1989) (citing Ark. Code Ann.
§ 5-39-101 (1987)). Because the Arkansas burglary statute
included vehicles, Shipman argues it was not generic and
therefore does not qualify as a crime of violence. 5
5Shipman cites a series of Supreme Court decisions to support this
proposition: United States v. Stitt, 139 S.Ct. 399 (2018) (addressing the scope
10 No. 17-3476
The government responds that all viable bases for
Shipman to attack a career-offender designation under the
enumerated-offenses clause were available at sentencing and
within the one-year limitations period of § 2255(f)(1). The
government also argues there has been no change in the law
since then to justify Shipman’s reliance on § 2255(f)(3). But in
this case, without an explanation of the career-offender
designation, it is unclear how Shipman could object to that
categorization.
Although this appeal has narrowed the issues, the record
does not “conclusively show” that Shipman “is entitled to no
relief” on his claims, so remand is warranted for further find-
ings on these questions. 28 U.S.C. § 2255(b). Given the state of
the record, we express no opinion on the merits of Shipman’s
claims, reserving that for the district court to evaluate and
decide in the first instance.
III. CONCLUSION
Because our decision in Cross negates the underpinnings
of the district court’s dismissal, we VACATE the district court’s
order dismissing Shipman’s petition and REMAND the case to
the district court for proceedings consistent with this opinion.
of generic burglary); Mathis v. United States, 136 S. Ct. 2243, 2251 (2016)
(“[A] state crime cannot qualify as an ACCA predicate if its elements are
broader than those of a listed generic offense.”); see id. at 2250, 2257 (con-
cluding that defendant’s prior burglary convictions cannot give rise to
ACCA’s sentence enhancement because the elements of Iowa's burglary
law, which includes entries into vehicles, are broader than those of generic
burglary, which is limited to unlawful entry into a “building or other
structure”); Taylor, 495 U.S. at 598 (defining “generic burglary”). | 01-03-2023 | 06-05-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142602/ | GERALDC. MARR , AUSTINI~.%'EXAEI
Bon. Wm. J. Lawson opinion No. Q-3754
Secretary of State Ret Assessment of 25% penalty for
Bust in, Texas late payment franchise tax--Con-
struction of H.B. No. 8, Article
Dear Sir: VIII, Acts 47th Legislature.
We are in receipt of your letter of June 20, 1941,
requesting an opinion concerning the collection of the 25%
penalty for late payment of franchise for the current fran-
chise tax year in view of the amendment of ,Article 7084, Re-
vised Civil Statutes 1925, by Article VIII, House Bill Noi
8 Forty-seventh Legislature, which became effective May 1,
1441.
The question involved is one of statutory construc-
tion and it therefore becomes material to carefully consider
the various statutory provisions and their history.
Prior to May 1, 1941, Article 7084, R.C.S., 192.5, as
amended 1931, l#vieda franchise tax upon domestic and foreign
corporations at the rate of sixty cents. per thousand dollars
of the capital stock of such corporations from one dollar to
one million dollars and at the rate of thirty cents per thou-
sand on capital in excess of one million dollars. The minimum
tax was $10.00.
Each corporation was required to file a sworn report
with ,the Secretary of State as a basis for computing its tax
between January 1st and March 15th of each year and upon its
failure to file such report within the time required by law
became subject to a penalty in the amount of ten per cent of
the tax due. Article 7089 Revised Civil Statutes 1925, as
amended. ,Article 7091, Revised Civil Statutes, 1425, provides
that, “Any corporation, either domestic or foreign, which shall
fail to pay any franchise tax provided for in this chapter when
the same shall become due and payable under the provisions of
this chapter, shall thereupon become liable to a penalty of
twenty-five per cent of the amount of such franchise tax due
by such corporation.” Under Article 7084 the tax at the rate
mentioned was due and payable “on or before May 1st of each
year. . . in advance. It
Effective May 1, 1941, however, Article 7084 was amend-
ed by the Forty-seventh Legislature so as to povide a flat
Hon. Wm. J. Lawson, page 2 (O-3754)
rate of one dollar per thousand dollars taxable capital,
provide a $20.00 minimum tax and other changes not mater-
ial here. The provision tha 4 the tax is due and payable on
or before May 1st each year was left unchanged. The follow-
ing provision was also added to the statute:
“Sect ion la. It is further provided that
upon the passage of this Act or as soon after
as is feasible, the Secretary of State shall
mail to all corporations required to pay the
franchise tax under the provisions of this Act,
supplemental forms for the purpose of computing
franchise taxes as provided by this Act for per-
iods from the effective date of this Act to May
1, 1942 and he shall also mail notice to the
effect c hat for failure to file the necessary
report and for failure to pay additional amounts
which shall accrue as a result of the passage
of this Act the right of such corporations to do
business will be forfeited on September 1st next;
provided that the statutory penalty of twenty-
five (25) per cent shall not accrue against such
additional amounts for failure to pay on or be-
fore May 1, 1943. The Secretary of State shall
have the authority to promulgate such rules and
regulations necessary to the immediate enforce-
ment of this Act.”
The Secretary of State has construed the statutes
to mean that corporations are required to pay that portion of
the tax which would have accrued under old Article 7084 on or
before May 1, 1941, or become subject to a 25% penalty to that
extent of the tax and that they have until September 1st to
pay, without pena t that portion of the tax imposed by the
amended Article 708
i t’ which is in excess of the amount which
would have been due under the Article before its amendment”
On the other hand it is contended by the taxpa er
that the amendment completely superseded old Article 708 2: so
that no tax actually accrued thereunder but the tax was levied
by virtue of the amendment so that the “tax liability on the
basis of which the penalty is calculated and claimed in fact
never accrued, ” and that the “corporation never became indebted
for franchise tax in the amount on which pen.alty is claimed.”
It is further urged that the effect of the Secretary of State’s
construction is to “impose a penalty for non-payment of a ‘lia-
bili,ty which had in fact never accrued,” and that “additional
amounts” as used in Section la has reference to the entire tax
imposed in Article VIII of House Bill No. 8. The meaning of
Hon. Wm, J. Lawson, page 3 (O-3754)
“such additional amounts” as used in Section la of the amend-
atory Act depends upon and must be determined by the context
and subject matter, and the evident intention of the Legis-
lature e Every word of an enactment is intended to have been
used for a purpose and the statute will be construed with ref-
erence to its scope, general purpose, and the ends or objects
sought to be attained. It is proper to consider the title
contemporaneous history and conditions and facts then exis e ing
and within the knowledge of the Legislature. 39 Tex.Jur. pp*
196, 2,36, 217 and 229.
As pointed out above corporations were required to
file their franchise tax reports by March lsp 1941, as a basis
for computing the tax at the rate provided in Article 7084 as
it the,n existed and those reports were on file with the Secre-
tary of State, except as to those corporations which were de-
linquent and had become subject to a ten per cent penalty for
late reports. The tax based upon information contained in
those reports at the rate prescribed prior to the amendment was
payable on or before Way 1, 1941, and large numbers of taxpay-
ers had made payment under that statute, as in former years,
except those who were waiting until the last day to pay the tax
or who would become delinquent under the law as it then existed.
These are facts which the Legislature undoubtedly knew and which
we must presume it took into consideration when enacting House
Bill No. 8.
It will be noted that subdivision (a) of the statute
as amended does not provide that the tax therein levied shall
be due and payable to the Secretary of State on or before Sep-
tember lst, but provides that each corporation “shall, on or
before Mav 1st of each veaE., pay in advance to the Secretary of
State a franchise tax for the year following.“’ Following the
taxpayer’s reasoning that since the amendment became effective
on May 1st and superseded the former statute so that the fren-
chise tax for the current year accrued and was levied by virtue
of the amendment effective May lst, it must be borne in mind
that under the express language of House Bill No. 8 the full
amount of the tax at the rate provided in the amendment became
due on May lst, 1941, for the year ending April 309 1942. We
must presume the Legislature knew the provisions of our fran-
chise tax laws. It was increasing the corporate franchise tax
and retaining the same delinquent date at a time when reports
for the lesser rate had been filed, large numbers of corpora-
tions had paid under the old rate in good faith and it would be
practically a physical impossibility for new reports to be filed
and taxes computed and paid at the increased rates for the cur-
rent year within the regular period provided by law. This is
emphasized by the fact that House Bill No. 8 became effective
on the very last day that franchise taxes could be paid without
- ._ _
Hon. Wm. J. Lawson, page 4 (O-3754)
penalty. It was the obvious purpose of Section la of the
amended Act to relieve against this situation.
Section la provides for “supplemental forms” for
computing the tax under the amended statute from its effective
date to May 1, 1942. It further provides that the right of a
corporation to do business shall be forfeited on September 1st
next9 for failure to file the necessary report or to “pay
additional amounts which shall accrue as a result of the ass-
age of this Act.” It is also provided that the usual 25 B pen-
alty for late payment “shall not accrue against such addition.&
w for failure to pay on or before May 1, 1941.”
When viewed in the light of the facts and circumstances
surrounding the enactment of House Bill No, 8 we think it is
clear that the l~aaditional amounts” referred to in Section la of
the amendatory Act has reference to only that portion of the tax
levied therein which is in excess of the amount computed at the
rate theretofore provided in the statute which it superseded.
It vi.11 also be noted that Section la does not expressly alter
the provisions in subdivision (a), that the tax shall be paid on
or before May 1st each year in advance, but merely postpones the
date of forfeiture from July 1st to September 1st ae;ld exempts
the corporation from the penalty provisions on the
m” required to be paid by reason of the increased tax.
It is our opinion that under the provisions of Article
7084, Revised Civil Statutes, 1925, as amended by House Bill No.
8, Ac:ts Forty-seventh Legislature, the 25% penalty for late pay-
ment provided in Artici1.e 7091 for failure to pay the franchise
tax c,n May 1, l941, was suspended only as to such amosunt of the
tax l.evied under House Bill No. 8 which is in excess of what the
tax would have been., computed upon the basis provided i.n Article
7084 prior to its amendment; and that the Secretary of State
has properly demanded such penalty for late payment upon the
amounts which wo?uld have accrued under the prior law where such
sums were not paid on OP before May 1, l%,l.
APPROVED JUL 28, 1941 Yours very tmdy
/s/ Grover Sellers ATTORNEY GENERAL OF TEXAS
FIRST ASSISTANT By is/” Cecil C. Cammack
ATTORNEYGENERAL Cecil C. Cammaek, Assistant
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
CCC:LM:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142407/ | ‘i
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. OFFICE OFTHE ATTORNEY GENERALOF TEXAS
AUSTIN
-cwuw
-ouRa
Eanorab1.eLbrvln Xi.Drown, Jr.
crizlinolDlstrlot Attorney
Fort \Yorth,Texas .
Deer Sir8
328(3.) provides a
in suite for dolin-
107 now in ?oroo Pa-
3uad lLlciva1 oa303,
or tho opinion thst the no
supcraoded tho fom to bo uooa in
olloction of dolinq.lmt taxco,
ltatlon. ie apeoirically sot forth ’
(1) Soot.ion j,
assi:;tUS In this rmtter with an ax-
Upo!x reoolpt of your lottor the writer \szoto you
a0 f0110:16I
"It is our u~domtnndin(: thnt tho poinl; you
inquire about hao bow cnllod to tho uttontion of
the SKp~Wo Court and that the court is no?t pre-
y5ng ar. axiGcd rule to taka cm0 of this acming
. ., .
, Honorable LWvls I?.l&own,iJr.,-pa&o 2
lnoonslat3noyr Slth your pemkmibn, thOref@o,
WC will mit the aotion by tim court which tra+uide~G
stand will bs in the mar future boforo answifcpfq~
yam. roquostIn
Fe novr oOl?~yf5ursttcatim to Ruls ::o,2 a0 azwnd0d
by thb Suprme Court; tJse smo provldo3 a3 folloxo:
nThoae &lo3 ohsU &kern tho procoduro in
the justioa, county, distrititncd~nppa+to court3
of tho rtato of Texas in
'. all aotiom of a civil
nature, with 3uch Oroaptions 33 my bo horoimftor
Bt3hi .. :,:horo
any ntatut3 In offoct,lxzodistaly
. prior to %pttmbcr 1, l.$!,J.,
proscribed .a rulo
or procoduro tn'lumcy, @mrdianOhip, OY 03tatos
of docadontc, or any other probato Jroo3odingn In ~.
tho oounty court diff3~5.r;~
fro3 the30 rulon, such
statuts 3hOll ag;:ly. :~iiatatuton in tmmi ia-
mediately prior to SaytcmbOr l.,1$&l, p"o3cribi.r~
~ulos ailprGcodw% in bond oi' reco~~izsnoe ~o~~oILu~Qs
;Cncririlualcasas era hsreby Ooztlnuod In affect 03
rules of yrocodura covorninL; but whore
such oa303,
auuh crtatuteoJroscribod na rules of Jzoseduro In
530t103 5, of Artlolg 732%3. amtiiino. a form
:
of al-
totlon to bo used in t3;%mite.
ft 13 the o>fnion of this dopnrtzmt that Artiolo
73~8-1’ ~3 still in force and effect UII~ aold attltuto hm not
been ropsslod oz Ononded by the no? rulOo of praotioo end pro-
Qoduro in oivil notio:i3pronulcated by tho :uypocleCourt of this
zt3to.
Yours very truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142424/ | OFFICE OF THE A?TORNEY GENERAL OF TEXAS
AUBTIN
Itonarrblo?. L. &rrlo
oountl Audlter
irllb4ag.rcmulty
vo~aal, Teur
nou a1rt apinion Ho. O-3931
u4 have r444ivea Jolm nitten nQu4rt ror 4n opinion
f?om thlr depwtutnt. we quot. frar pmr requwtt
%n Augttrt28th, Wllbmger County; hxae,
h4ld 4n Electton (County WI4 for th4 purpor4
of rotlttgon the lmu8xw4 or i25*000.00 ia
made. for the par9084 or bt@Jlg 8 rite ior
an Air ?ort 4lte, th4 beat& aot to ku RON
thaa J$ intueat, and to be due
744rr la 20
vitlt8a optian of pqllt# of? tit8 remlang
balance rt the ualntlon of the 10th year.
"UnderArtlole Ho. 2938 Rerlred Cfrll
8tatuter, 411 &@4r u4 Clork4 4lull b4 94ld
42.00 9.r d8J 8ad $2.00 4xtm to the tnrlalng
Judge for vklng the nturmn of the X144tiont
?inder Artlo lo. 2*3 Berlred Girl1
pt4tuter, it provide6 that tin -48 aad
ale*4 of 8 tseneralor 894et41 El4otioa ah8l.l
be mid 43.00 a d8~l4eh rad .30 aeat 94r
hour for say tlm tn 4xe48e oi 8 da- vork,
oolulttlag of 10 hourr.
'I@ rueh 8n 414ation 4B 4bwo aentloaed 4
894414l tl4etic3nunder the atrtuts, utd vb8t
RaMwuo ?. t. LUlO, ?ap 2
<
14aowbl. 1. L. Lwlo, ?a#. 3
u-a awof m eplrio8tlmtm 4i?pmtbmd4A44t14&
mfem(l to iD~osmreqwrt, la 8 aveoirl ebotia. ko Opln-
lea Ho. 043P3, l 00 of rfr1.h IN ulead ul the uthorltl*~
4lt4d t&wm 19 0.3 .%. nU.0 rorhu*lwUoai* l 8podal
l104tia it foUa4 mt th4 jldg4 4mI l&e4 t&at h4l4 th4
4144t1a, bqllnd about, 8houlAk -ted la lo o o a a n4 4
tithArtio104*s, mgm, ulutinuro~evith tb lo&.
pouatloa pwvi8d %a hrti4l4 2938, lp w.
uetn8ttbt lnthi8m8n4~w4h4urmumnd44ah
of yew iaqulriea.
Youw ruy trull
FIRST ASSISTANT
ATTORNEY GENEHAL
ha8iotut | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142429/ | ....
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OFFICEOF THE ATTORNEY GENERAL OF T’EXAS
AU8TIN
Dear Sir:
Iiort0rabl.s
oeorgsH. sheppud, page E
We quot.fma yourlottoT’
of 4lgwt. 88th a8 rollowi
“lb qumtion ha8 bean pn~antod to thi8
DepwBLenta8towhotbertbeGomptrollerwould
to i88W WUX'Mt inpyaunt Of thi8
bo authoilS.6
oldm iinoo R. J. MoLoan,Court Repxtw, I8 an
ofiiobl of thm Stateof Tear ud that ho would
bo pmhibltedtrim &r~ing thi8fee Imder250~
tlon39, &t&01* 16 of tha stat* wnst5mtlonw
‘Iho further quertlon ham arlmn eventhou@ ho
18 authoricod to drew oompwmation
tee thi88orv-
ior a8 to wbthor ho ocul6dmr pay foro?rrbon
oqlea of tMtluony and ror prepmlng iam8 88
lietedin thisdl@ir. Illthi8~6tio: f 0d.1
yourattmtiailto Artlolu 8384,eaa3,es36an4
Immb"
3oatlon83 oi ArtloU XVX 0r t&o 8tatrtbautstution
Of th. 8btO Of %-UM W&B, in 08*, 88 tOlhW81
“2hoAooouatlng ~mou8ofthl8 8tete~JuZl
no ith adr a nor
w pa y
l rarmnt upoatho Tru
in iuor of any or oaponqe“fI on
perun, for
ralat~
a8 agent,offieer
of qqolntu, who,hol4L8t the nma
tk8 any ether orfieor of poaislon of honor,t,rqt or
profit, under thl8 Stat. or tha Wnita+l 8tatr8;a%~
upt U. pro8orib.d ia d8 O~t$WatAon.+ + +”
.Youdo not add80 thLldopertmant
that
“WJ OtherOrtip. Or pt38it%On Of hOlIOF: tSl8t or
th18 stat.or th* unitedSt&U." It'&
whiahYOU bare ~~8OUatcrd, indlUdill& Oh8 8lBtWAOllt crb m. .WUZ’,
Honorable George Ii. Sheppard, pago S
that ha was aati& onlyin hWaapaaliy am offia@ cburt
Raportar of tha l.ebthJudlolalDi8triot '&ad8
Court~~~of
Oounty,TUM and ttn foe8 aoh he hr~ah8rga~~m4$wo-
8Ontsd him blil' for aY@ thoseprovided fOr by tha Statute8
Qf this stete.
The offialalocurt reporterof a Qlrtrlot
oourti.8
an offiolal of the State,Duhn,at al r.;+llm,rt al,
6s 8. w. (aal857.
hitappeerlngthat Mr. War‘ha#r&&d hia bill
for ~nution 80 providedfW by the Bktuf.8 of thi8
St&a a8 the offiolel hurt Importer of the'186th JWal8l
Dirtriat Court Of Tr8vie County', !bX@88 ih fua3h.r +p~~er-
lng thatthen ha8 besnm dopsrturcfrom the proOe8a pm-
vfdldby law for thr flXl~$mid ahUgfnS:bfthe80 f808,
.azullt~furthw not &ppearlng that woh oourtrqmrtor holds
at the 81~0 tlnm%nyother offloeorpo8itionofhoner,
‘~
tSZl8t or profit, un4er t&III Stata or th8 anu8d stat@8,'
$t $8 fb OpbIiOn Of~t)lb.dqmdWnt that ywr pyI8llt
a? thd whant rendare b Mr. Wear will -aat br la viola-
tion of 8ootion 33 a? ArtI al0 XVI si the Wutitutton of-
fbi8~8ktern dt.a&~ 18 the Opi@On ,Of fhi8 dOR8rtMnt that
swh doount ahoul& bi~paid,
By (81 Awry D. L~6erdale
HenryD. LwAderdala
Aulatult | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142440/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
_~i ,., ~. .
i,.’ ;i. .,~ *i | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126614/ | RENDERED: AUGUST 25, 2016
xi
TO BE PUBLISHED
$10tyrrtur 6:turf of ti rutu-ritv-,
2014-SC-000241-DG
JONATHAN MCDANIEL APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
AND 2012-CA-001513-MR
CALLOWAY CIRCUIT COURT NO. 09-CR-00181
COMMONWEALTH OF KENTUCKY APPELLEE
2014-SC-000242-DG
DAVID DESHIELDS APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
AND 2012-CA-001513-MR
MCCRACKEN CIRCUIT COURT NO. 09-CR-00547
COMMONWEALTH OF KENTUCKY APPELLEE
2014-SC-000243-DG
JOHN C. MARTIN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2012-CA-001172-MR; 2012-CA-001299-MR;
AND 2012-CA-001513-MR
ANDERSON CIRCUIT COURT NO. 09-CR-00042
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING ON OTHER GROUNDS AND VACATING IN PART
Prior to an amendment in 2011, Kentucky Revised Statute (KRS)
532.043 provided in part that in addition to the other penalties authorized by
law, any person convicted of certain offenses, including any felony offense
under KRS Chapter 510, the Penal Code chapter addressed to sex offenses,
"shall be subject to a period of conditional discharge" following the "expiration
of sentence." KRS 532.043(1) (2006). In May and July of 2012, Jonathan
McDaniel, David DeShields, and John Martin, all inmates at the State
Reformatory in LaGrange, Kentucky, and all serving sentences for felony sex
offehses, filed very similar pro se motions in their respective trial courts
challenging the legality of the conditional discharge requirement and seeking to
have the discharge period deleted from their sentences. All three trial courts
denied the motion, and all three defendants appealed. In each case, the trial
court, although having denied the defendant's request for Department of Public
Advocacy (DPA) assistance in the trial court with the motion itself, granted his
request for DPA assistance on appeal. The Court of Appeals consolidated the
three cases; denied DPA's request to be allowed to withdraw; and ultimately,
although for reasons having little to do with the issues raised in the trial
courts, affirmed the trial court's ruling in each case. We granted the
defendants' joint motion for discretionary review to address their concern that
the Court of Appeals inappropriately characterized their trial court motions as
having been brought pursuant to Kentucky Rule of Criminal Procedure (RCr)
11.42, and to address our own concern that the Court of Appeals, perhaps in
2
its eagerness to try to calm the waters after the 2011 amendment to KRS
532.043, inappropriately ruled on a question not properly before it. Our review
strengthening rather than allaying these concerns, we affirm the Court of
Appeals' ultimate affirmance of the trial court rulings denying relief, but
"vacate" the Court of Appeals' opinion except as to the issue of whether
Martin's and McDaniel's guilty pleas were subject to appellate review.
RELEVANT FACTS
Although the procedural history of this case, particularly the effect of
appointed counsel's involvement once DPA was belatedly enlisted in the cause,
is most germane to the issues before us, we necessarily begin with brief
accounts of the three defendants' cases. In March 2010, Jonathan McDaniel
pled guilty in the Calloway Circuit Court to one count of first-degree sex abuse,
victim under twelve (KRS 510.110), a class C felony that McDaniel committed
on or about May 19, 2009. In its May 2010 Final Judgment, after previously
accepting McDaniel's plea bargain, the trial court sentenced McDaniel to six
years' imprisonment, subject to the mandatory five-year conditional discharge
period in KRS 532.043.
David DeShields pled guilty in the McCracken Circuit Court in
September 2010 to two counts of first-degree sex abuse, victim under twelve,.
for crimes committed in June and October of 2009. The trial court's November
2010 Final Judgment reflected DeShields's plea bargain and sentenced
DeShields to two six-year terms of imprisonment, the two terms to run
concurrently. Among other consequences of a sex offense, such as treatment
3
and registration requirements, the Judgment also noted the five-year
conditional discharge requirement.
In January 2011, John Martin pled guilty in the Anderson Circuit Court
to six counts of first-degree sex abuse, to two counts of second-degree sodomy
(KRS 510.080, a class C felony), and to one count each of second and third-
degree rape (KRS 510.050, Class C felony, and 510.060, Class D felony). The
crimes were committed against a single victim and spanned the years 2001 to
2007, with at least two of the crimes having been committed after July 2006,
when the General Assembly increased the conditional discharge period from
three years to five. The trial court's April 2011 Final Judgment incorporates
Martin's plea bargain for concurrent sex-abuse and sodomy sentences together
with consecutive rape sentences for a total sentence of twenty-three years'
imprisonment. As do the others, Martin's Final Judgment also notes the five-
year conditional discharge requirement.
As noted above, the defendants all were incarcerated at the LaGrange
Reformatory, and the motions they each filed seeking to have the conditional
discharge portion of their sentences removed are similar enough to suggest
that they all worked from the same template or had the assistance of the same
"legal aide." They challenged the conditional discharge requirement on a
number of grounds (not all of which are stated with the utmost clarity), but
principally (1) as a sentence "enhancement" imposed on the basis of judicial
fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), which
generally requires the jury to find any fact that will allow an "enhanced" or-
"aggravated" sentence;' (2) as a judicially imposed harsher sentence than the
sentence bargained for with the Commonwealth, contrary to Bailey v.
Commonwealth, 70 S.W.3d 414 (Ky. 2002) (construing KRS 532.070, which
allows trial court amelioration of jury-imposed sentences the, court believes too
harsh); 2 and (3) as a "second" sentence for the given crime, in violation of the
Double Jeopardy Clause of the United States Constitution, which clause
generally forbids that crimes be punished more than once. 3
1 Here, of course, the defendants waived jury fact-finding by pleading guilty,
and each of them, by pleading guilty to a felony offense within KRS Chapter 510,
admitted the fact (no judicial fact-finding required) that subjected them to the
conditional discharge "enhancement."
2 In Bailey the Court reiterated that KRS 532.070 does not authorize a trial
court to impose a sentence harsher than the one the jury imposed. As Bailey clarified,
of course, KRS 532.070 does not apply to sentences arrived at via guilty plea. To the
extent, however, that the defendants invoked Bailey to assert that trial courts also are
not authorized to impose a harsher sentence than the one bargained for, cf. RCr 8.10,
which disallows, in the guilty-plea context, a harsher than bargained for sentence
unless the trial court gives the defendant notice of the harsher sentence and an
opportunity to withdraw his plea. The gist of the defendants' argument, or at least a
principal part of the argument, appears to be that conditional discharge was precisely
a judicially added "harshener" to the plea bargain. That argument clearly does not
apply to one of the cases, that of DeShields, for at DeShields's plea colloquy the trial
court referred expressly to the conditional discharge requirement. During their
colloquies conditional discharge was not mentioned expressly, but Martin and
McDaniel both acknowledged having been advised by counsel of "all the penalties"
made possible by their crimes, and neither of them objected at sentencing when the
conditional discharge requirement was included as a part (a mandatory part) of their
bargained-for sentences. Martin, to be sure, moved, in the days immediately prior to
his sentencing, to withdraw his plea, and he complained that counsel had failed
generally to explain the plea's consequences. But he did not mention conditional
discharge (or any other specific consequence) in particular, and the trial court, on the
basis of its review of the plea colloquy, concluded that Martin's plea had been
voluntary and did not otherwise justify withdrawal. Martin did not challenge those
rulings by way of appeal. Cf. Commonwealth v. Tigue, 459 S.W.3d 372 (Ky. 2015)
(discussing pre-sentence motions to withdraw a guilty plea).
3Conditional discharge, of course, although an addition to the term-of-years
sentence either bargained for (as in these cases) or imposed by the jury, is not a
"second" punishment imposed in the course of a "second" jeopardy, as disallowed by
5
When their respective trial courts rejected these challenges and denied
their motions to amend their sentences, the defendants filed notices of appeal,
and each, as noted, was granted DPA assistance. DPA's motion in the Court of
Appeals to be relieved of that responsibility can fairly be interpreted as DPA's
assertion that the appeals, and the trial court motions underlying them, were
meritless. 4 The Court of Appeals, however, hopeful that DPA briefing would
shed light on an "issue of first impression" before the Court—"a legal challenge
to the conditional discharge provision of KRS 532.043"—denied DPA's request
to withdraw. 5 Order, No. 2012-CA-001172-MR (Oct. 24, 2012).
DPA then duly filed briefs on behalf of Martin, McDaniel, and DeShields,
but (not surprisingly, perhaps, given DPA's apparent assessment of the
defendants' trial court motions) the arguments DPA raised on appeal did not
have much to do with the issues addressed by the trial courts. Instead, after
DPA entered the case, Martin's and McDaniel's claims that their trial courts
the Double Jeopardy Clause, but is merely a portion of a single sentence imposed in
the course of the original jeopardy.
4 DPA brought its motion pursuant to KRS 31.110(2)(c), which provides that the
right to counsel under KRS Chapter 31 does not extend to DPA representation in post-
disposition proceedings unless the proceeding is one "that a reasonable person with
adequate means would be willing to bring at his or her own expense." DPA's
insistence that these appeals did not meet that standard, strongly suggests that in
DPA's view the appeals were meritless.
5 This case well illustrates the difficulties courts, trial and appellate, confront as
they try to make the most of the limited supply of DPA representation. While we
certainly agree with the Court of Appeals that DPA has a vital role to play in the
articulation of novel criminal justice issues, it must be apparent that its ability to fill
that role on appeal will be marginal, at best, where it has had no hand in shaping the
trial court record, and where, by its own estimate, that record provides no opening by
which the "novel" issue might legitimately be reached.
6
had sentenced them beyond their plea bargains morphed into claims that,
because those two defendants were unaware when they entered their pleas of
the conditional discharge portion of their sentences, their pleas were
involuntary and thus invalid.
DPA's main argument, an argLiment it made on behalf of all three
defendants, had even less to do with the defendants' original motions. An
understanding of this argument requires a brief discussion of KRS 532.043
(2006), the conditional discharge statute. As noted already, that statute
provided that persons convicted of certain specified offenses, including felony
sex offenses, shall serve, in addition to their ordinary term-of-years sentences,
an additional period of conditional discharge. When the statute first came into
effect in 1998, the discharge period was three years. Effective as of July 2006,
the General Assembly increased the discharge period to five years.
As originally conceived by the General Assembly, conditional discharge
was a sort of probation/parole hybrid. Like parole, the defendant's discharge
came after judicial proceedings had ceased and jurisdiction expired, and the
conditions of discharge were specified by the Department of Corrections. KRS
532.043(3) (2006). As with probation, however, revocation proceedings were
assigned to prosecutors and the courts. KRS 532.043(5) (2006).
In 2010, in Jones v. Commonwealth, 319 S.W.3d 295 (Ky. 2010), in
response to a separation of powers issue raised by DPA, this Court held that
that hybrid approach violated our Kentucky Constitution's strong separation of
powers provisions by involving the courts—the judicial branch—in the
7
Department of Corrections'—the executive branch's—affairs. While "[t]he
General Assembly can," we explained, "consistent with the separation of
powers doctrine, create a form of conditional release with terms and
supervision by the executive branch[,] . . . the statutory scheme runs afoul of
the separation of powers doctrine when revocation is the responsibility of the
judiciary." 319 S.W.3d at 299-300.
In response to Jones, in 2011 the General Assembly, as part of the
massive House Bill 463, changed the name from "conditional discharge" to
"postincarceration supervision," and amended subsection 5 of KRS 532.043 to
provide for Parole Board, rather than judicial, oversight of revocations. By
early 2012 the Department of Corrections had issued regulations governing
postincarceration supervision revocation proceedings, including regulations-
501 Kentucky Administrative Regulations (KAR) 1:070—devoted to sex offender
revocation proceedings.
In its briefs on behalf of Martin, McDaniel, and DeShields, DPA focused
on this statutory shift from the judicial revocation procedures in effect at the
time of the defendants' offenses, to the new Parole Board procedures that
would likely be in effect when the defendants completed their periods of
incarceration and became subject to postincarceration supervision. DPA
argued that the new procedures accorded persons under supervision less
protection against revocation (hence producing additional incarceration) than
did the former procedures, such that application of the new procedures to the
defendants would amount to a due process violation, the sort of "fair warning"
8
violation the United States Supreme Court addressed in Bouie v. City of
Columbia, 378 U.S. 347 (1964). In that case a state supr :eme court's surprising
reinterpretation of one of the state's criminal statutes was held to raise under
the federal Constitution's Due Process Clause "fair warning" concerns
analogous to those addressed by the Ex Post Facto Clause with respect to
criminal-law changes brought about by new legislation. 6
Simply put, the defendants' cases mutated in DPA's opening Court of
Appeals briefs. They changed from the defendants' relatively straightforward
illegal-sentence claims (claims DPA had already indicated it had no interest in
pursuing), to, in Martin's and McDaniel's cases, challenges to their guilty pleas,
and in all three cases to a "due process" claim that looked a lot like an ex post
facto claim. And the mutating was not over.
The defendants' original motions to amend their sentences and the trial
courts' orders denying those motions did not make reference to any particular
rule or statute authorizing the motion, but in each of its briefs to the Court of
Appeals, the Commonwealth asserted, parenthetically, that each defendant's
6 Apparently DPA purports to justify raising on appeal this patently
unpreserved claim by noting that the defendants' trial court motions, in conjunction
with their reference to Apprendi, also refer to the federal Constitution's Due Process
Clauses, as though that bald reference put the trial court on notice of every case
everywhere in which "due process" has in any way been construed. Needless to say
(we would hope), that notion does not comport with an adequate understanding of
notice pleading and its requirements or of motion practice. Ashcroft v. Iqbal, 556 U.S.
662 (2009) (discussing and applying Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), which adopted a "facial plausibility" standard for pleadings under Federal Rule
of Civil Procedure 8(a)(2), the federal counterpart of our CR 8.01(1)). And see CR 7.02,
which requires that motions for trial court orders "state with particularity the grounds
therefor."
9
motion should be understood as having been brought pursuant to RCr 11.42,
which authorizes persons under a criminal sentence to collaterally attack that
sentence by filing an appropriate motion in the sentencing court. Because the
defendants' motions had indeed sought to correct what the defendants
maintained was an invalid portion of their sentences, the Commonwealth's
seemingly offhand proposal to tidy up the record by expressly invoking RCr
11.42 may not at first glance have seemed controversial.
In fact, however, the proposal was not mere "housekeeping" of the record.
In general, RCr 11.42 gives a person under sentence one, and only one,
opportunity to "state all grounds for holding the sentence invalid." RCr
11.42(3). Generally, a second such motion is not allowed. Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983) (describing Kentucky's
"organized and complete" set of procedures "for attacking the final judgment of
a trial court in a criminal case"); McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997) (affirming the denial of a successive RCr 11.42 motion). Thus,
characterizing the defendants' motions as RCr 11.42 motions would likely
preclude the defendants from invoking RCr 11.42 "again" to attack their
judgments on the ground, say, of ineffective assistance of counsel, which is
perhaps the most common use of RCr 11.42. 7 Alert to that consequence of the
Commonwealth's proposal, DPA devoted the entirety of its reply briefs in the
7 Indeed, one of the defendants, Martin, not long after his motion "to amend
sentence" was denied, filed an RCr 11.42 motion asserting, among other things,
ineffective assistance of counsel.
10
appellate court to arguing that the defendants' motions would be more
appropriately understood as brought pursuant to Rule of Civil Procedure (CR)
60.02, which also allows, in narrow circumstances, collateral relief from a
criminal sentence. Gross, 648 S.W.2d at 856-57.
The cases before the Court of Appeals thus bore little resemblance to the
cases decided by the trial courts. Whereas the trial courts had been asked to
address Apprendi, Bailey (implicitly RCr 8.10), and double jeopardy, the Court
of Appeals had before it whether, and if so how best, to characterize the
defendants' motions; whether Martin and McDaniel pled guilty involuntarily;
and whether the after-the-crime change from "conditional discharge" to
"postincarceration supervision" and from judicial to Parole Board revocation
procedures somehow encroached upon the defendants' right to due process.
Clearly, apples and oranges.
Unfortunately for DPA, none of this recasting of the case accomplished
anything. The Court of Appeals agreed with the Commonwealth that the
defendants' motions could appropriately be deemed "11.42s"; it declined to
address the validity of Martin's and McDaniel's guilty pleas, since neither
defendant had challenged his plea in the trial court; and, although (somewhat
inconsistently) it did address the equally unpreserved "due process"/"ex post
facto" issue regarding revocations, it rejected DPA's contention that Parole
Board revocation procedures so altered the "postincarceration" revocation
landscape as to implicate the "fair warning" concerns that often accompany
retrospective changes to the criminal law.
11
We granted the joint motion for discretionary review because we agree
with the defendants that the Court of Appeals' RCr 11.42 characterization of
their trial court motions raises significant fairness concerns similar to those
the United States Supreme Court addressed in Castro v. United States, 540
U.S. 375 (2003). We are persuaded, furthermore, that, even aside from the
lack of preservation, when the defendants presented their "due process"/"ex
post facto" claims to the Court of Appeals they were not ripe and therefore were
not reviewable. We must thus "vacate," as it were, almost all of the Court of
Appeals opinion. Since those issues, however, have virtually no bearing on the
trial court orders underlying these appeals, and since no one has suggested
that those orders were erroneous, we affirm the Court of Appeals' bottom line,
which was to affirm the trial courts' orders.
ANALYSIS
I. The Court Of Appeals Erred By Characterizing the Defendants'
Unlabeled Motions as RCr 11.42 Motions.
As noted above, when the Court of Appeals characterized the defendants'
"motions to amend" as having been brought pursuant to RCr 11.42, that
characterization had consequences, or at least potential consequences, beyond
merely establishing the standard of appellate review. Since for the most part a
person under criminal sentence is limited to one RCr 11.42 motion, the effect
of the Court of Appeals' characterization would be to preclude, or at least to
limit severely, the defendants' subsequent resort to that Rule. In Castro, supra,
the United States Supreme Court encountered a similar situation.
12
There, the appellant, Castro, a federal prisoner under sentence for a drug
conviction, filed in 1994 in the federal district court a pro se motion for a new
trial, a motion Castro styled as having been brought under Rule (Fed. R. Crim.
Proc.) 33. In its response, the Government noted that the motion was more
appropriately construed to invoke the federal habeas statute, 28 U.S.C. § 2255,
and then a couple of times in the Opinion accompanying its denial of the
motion, the district court referred to it as a "§ 2255" motion. Like our RCr
11.42, 28 U.S.C. 2255 allows persons under sentence to attack the sentence
collaterally, but it strictly limits a person's "second or successive" use of its
procedure. Still pro se, Castro appealed from the denial of his 1994 motion,
but he did not challenge the district court's recharacterization of it.
Some three years later, in 1997, Castro, again pro se, filed what he called
a "§ 2255" motion, wherein he alleged, among other things, that he had
received ineffective assistance of counsel. After some back-and-forth between
the district court and the Eleventh Circuit Court of Appeals, the district court
ruled that the 1997 motion was Castro's second "§ 2255" motion—the 1994
motion being the first—and dismissed the 1997 motion for failing to meet one
of the conditions (prior appellate court approval) for a "second or successive"
motion under the habeas statute. The Eleventh Circuit affirmed the dismissal,
but in doing so it urged district courts prior to recharacterizing prisoners' pro
se pleadings to "'warn prisoners of the consequences of recharacterization and
provide them with the opportunity to amend or dismiss their filings."' Castro,
13
540 U.S. at 379 (quoting Castro v. United States, 290 F.3d 1270, 1274 (11th
Cir. 2002)).
The United States Supreme Court granted Castro's petition for certiorari,
and early in its analysis it noted the widespread recognition among the federal
circuit courts that "by recharacterizing as a first § 2255 motion a pro se
litigant's filing that did not previously bear that label, [a] court may make it
significantly more difficult for that litigant to file another such motion." Castro,
540 U.S. at 382. In light of that risk (and in accord with what already was the
practice in most of the federal circuits), the Court then, pursuant to its
supervisory powers over the federal judiciary, held that before a district court
may recharacterize a pro se litigant's motion as a first § 2255 motion, it
must notify the pro se litigant that it intends to recharacterize
the pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject to
the restrictions on 'second or successive' motions, and provide
the litigant an opportunity to withdraw the motion or to amend
it so that it contains all the § 2255 claims he believes he has.
Castro, 540 U.S. at 383. Absent this admonition, "the motion cannot be
considered to have become a § 2255 motion for purposes of applying to later
motions the law's 'second or successive' restrictions." Id.
As we have noted, RCr 11.42, like the federal habeas statute, 8
contemplatesforthemostpart hat hoseinvokingitwil dos onlyonce,
8 Kentucky Rule of Criminal Procedure 11.42 was originally conceived as an
analogue in our system to 28 U.S.C. § 2255, and while our Rule departed in its
specifics from the federal law, its function remains similar. Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001) (discussing the advent of our current Criminal Rules
and in particular of RCr 11.42).
14
raising in a single motion all grounds for collateral relief from the challenged
sentence that could then reasonably be presented. RCr 11.42(3). In
furtherance of that purpose, our rule implicitly imposes similarly strict limits
on subsequent motions, Gross, supra, and there is thus the risk that the
characterization of a pro se litigant's pleading as an initial RCr 11.42 motion
could "make it significantly more difficult for that litigant to file another such
motion." Castro, 540 U.S. at 382.
We agree with the defendants, accordingly, and invoke our supervisory
power to hold, that before a trial court characterizes a pro se litigant's
unlabeled motion as an "11.42" or recharacterizes a motion the pro se litigant
has labeled some other way as an "11.42," it must advise the litigant that it is
doing so, must warn the litigant about the possible subsequent-motion
consequences, and must give the litigant an opportunity to withdraw or to
amend his or her motion. If pro se litigants are not so admonished, the subject
motion cannot later be used against them as a bar to a "subsequent" motion
under RCr 11.42. Accord, People v. Shellstrom, 833 N.E.2d 863 (Ill. 2005)
(adopting a Castro like admonition rule for pro se petitions deemed to come
-
within the state's Post-Conviction Hearing Act); Dorr v. Clarke, 733 S.E.2d 235
(Va. 2012) (requiring a Castro like admonishment before recharacterization of a
-
pro se pleading as a petition pursuant to the state habeas corpus statute); and
see Barker v. Commonwealth, 379 S.W.3d 116 (Ky. 2012) (discussing this
Court's supervisory power over the judicial branch and applying that power to
require that probationers be admonished, before testifying at a revocation
15
hearing, of the extent to which their testimony could be used against them at a
subsequent criminal trial).
In these cases, of course, it was the Court of Appeals and not the trial
courts that characterized the pro se motions as "11.42s," and so the rule we
have just announced is implicated only indirectly. We understand the
appellate panel's desire to be certain about what it was dealing with, since the
character of a motion or pleading bears not only on standing prerequisites and
the showing the movant must make to be entitled to relief, but also on an
appellate court's standard of review. As the Supreme Court noted in Castro,
there are thus good reasons in many instances for a trial court to characterize
or to recharacterize a pro se motion or pleading. The court may want "to avoid
an unnecessary dismissal, . . . to avoid inappropriately stringent application of
formal labeling requirements, . . . or to create a better correspondence between
the substance of a pro se motion's claim and its underlying legal basis."
Castro, 540 U.S. at 381-82. RCr 11.42 itself, moreover, contemplates trial
court characterization or recharacterization by indicating that application of
the Rule hinges on the motion's substance, not the manner in which it is
styled. RCr 11.42(4). The rule we announce today is in no way intended to
discourage trial courts from characterizing pro se motions as "11.42s" when
appropriate, it is only meant to ensure that the pro se litigant be made aware of
the possible consequences and be given an opportunity in light thereof to
reconsider.
16
On the other hand, neither is our ruling here intended to require trial
courts to characterize pro se motions. Where, for example, as seems likely to
have occurred in these cases, the trial court determines that regardless of how
the motion is characterized it could not give rise to any sort of relief—the legal
theory being patently off the mark—the court is not obliged to engage in
(re)characterization. In that instance, however, unless the litigant himself has
expressly invoked RCr 11.42, the motion will not count as an initial "11.42" so
as to limit the litigant's subsequent resort to that rule.
Notwithstanding its good intentions, therefore, the Court of Appeals
panel erred by characterizing as "11.42s" the motions the trial courts left
ambiguous. At the appellate stage the defendants could not withdraw or recast
their motions, and, for the reasons discussed above, without that opportunity
we deem it unfair to saddle those defendants with the difficulty of showing the
justification for a successive RCr 11.42 motion should they file one.
Aside from the possible "successive motion" consequence, however,
which we hereby preclude, 9 the defendants have not suggested how they were
prejudiced by the Court of Appeals' characterization of their motions. In our
view, likewise, the appellate panel's error in characterizing the motion as
"11.42s" was otherwise harmless.
9 Because the defendants will not suffer any prejudice from the fact that their
motions were not characterized in the trial court, we reject their suggestion that the
remedy for the appellate panel's error should be a remand to the trial courts for
characterization there.
17
Theoretically, we suppose, by construing the defendants' trial court
motions as "11.42s," the Court of Appeals inappropriately limited the scope of
its review and could be thought to have neglected the possibility that the
motions might have fared better under the standards of some other rule, a
possibility the trial courts implicitly considered and rejected. As noted above,
however, DPA, on behalf of the defendants, made no attempt whatsoever before
the Court of Appeals to argue that the trial courts erred in their assessments of
the defendants' original motions. It argued instead that the defendants were
entitled to relief on grounds never before raised or addressed. Similarly, before
this Court the defendants have made no attempt to show that, had it not
limited itself to RCr 11.42, the Court of Appeals might have assessed some part
of their appeals differently. Aside from the "successive RCr 11.42 motion"
concern addressed above, therefore, we are convinced that to the extent the
Court of Appeals erred by characterizing the defendants' motions as "11.42s,"
the error was harmless and does not entitle the defendants to any additional
relief.
II. The Court Of Appeals Should Not Have Addressed the Merits of the
Defendants' Unripe "Due Process"' " Ex Post Facto" Claim.
The defendants also maintain that the legislative and regulatory changes
enacted during 2011 and 2012, whereby responsibility for revocations of
postincarceration supervision was transferred from the courts to the Parole
Board,rn constitute, as applied to anyone whose offense predates the 2011
10 Cf. KRS 532.043(5) (2006): "If a person violates a provision specified in
subsection (3) of this section, the violation shall be reported in writing to the
18
amendment of KRS 532.043(5), a violation of both the Kentucky and the federal
constitutional guarantees against ex post facto laws.il & 12 As the defendants
correctly note, those provisions forbid, among other things, "[e]very law that
changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. Peugh v. United States, U.S.
133 S. Ct. 2072, 2078 (2013) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed.
648 (1798)).
With respect to this "greater punishment" sort of ex post facto claim, the
"touchstone" of the inquiry, the Supreme Court has explained, "is whether a
given change in law presents a 'sufficient risk of increasing the measure of
punishment attached to the covered crimes."' Peugh, 133 S. Ct. at 2082
Commonwealth's attorney in the county of conviction. The Commonwealth's attorney
may petition the court to revoke the defendant's conditional discharge and
reincarcerate the defendant as set forth in KRS 532.060." and KRS 532.043(5) (2011):
"If a person violates a provision specified in subsection (3) of this section, the violation
shall be reported in writing by the Division of Probation and Parole. Notice of the
violation shall be sent to the Parole Board to determine whether probable cause
exists to revoke the defendant's postincarceration supervision and reincarcerate the
defendant as set forth in KRS 532.060." (Emphasis supplied to indicate amendment.).
11 Section 19(1) of the Kentucky Constitution provides that "[n]o ex post facto
law, nor any law impairing the obligation of contracts, shall be enacted." Article 1, §
10 of the Constitution of the United States provides that "[n]o State shall . . . pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."
12 As noted above, before the Court of Appeals the defendants argued that the
new revocation procedures violated their right under the Due Process Clause of the
federal Constitution to "fair notice" of the consequences of their crimes, an argument,
as discussed by the Commonwealth in its Court of Appeals response, more at home, in
this case at least, under the Ex Post Facto Clause. Before us, the defendants, as is
their wont, have shifted ground somewhat and have made the ex post facto claim
express by citing ex-post-facto cases and by insisting that "the lack of due process
afforded to defendants facing post-incarceration supervision revocation is so great, it
amounts to an ex post facto violation." It is the ex post facto claim, therefore, that we
discuss. We note, however, that any vestigial claim remaining under the Due Process
Clause would share the ex post facto claim's lack of ripeness.
19
(quoting Garner v. Jones, 529 U.S. 244, 250 (2000), which in turn quotes
California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995)). "Not every
retroactive procedural change creating a risk of affecting an inmate's terms or
conditions of confinement is prohibited." . Garner, 529 U.S. at 250 (citation
omitted). Whether a change in law creates a sufficient risk of increased
punishment, rather, "is 'a matter of degree[,]"' the Court has noted, and the test
"cannot be reduced to a 'single formula."' Peugh, 133 S. Ct. at 2082.
In Garner, the Court acknowledged that "[r]etroactive changes in laws
governing parole of prisoners, in some instances, may be violative of this
precept [the precept against retroactively increasing punishment]." 529 U.S. at
250. But in the parole context, too, the controlling inquiry is "whether
retroactive application of the change in . . . law created 'a sufficient risk of
increasing the measure of punishment attached to the covered crimes."' Id.
(quoting Morales, 514 U.S. at 509).
The defendants contend that the change in law whereby the Parole
Board, rather than the courts, oversees revocations from postincarceration
supervision creates a sufficiently serious risk of increased punishment—
increased incarceration as a result of more readily imposed revocation—to
render the 2011 amendment to KRS 532.043(5) an ex post facto law with
respect to persons whose crimes predate the amendment. They base this
contention on a comparison, in some detail, of the revocation procedures
recently promulgated by the Parole Board with those formerly provided by the
courts. This comparison shows, they maintain, that the Parole Board
20
procedures provide less protection against revocation than did the judicial
ones.
The Court of Appeals rejected this argument outright (or at least the beta
version of it with which it was confronted). In the panel's view, "the new
procedures actually afford offenders more due process than did the previous
proceedings." Martin v. Commonwealth, No. 2012-CA-001172-MR, p. 6 (April 4,
2014).
We decline to enter this debate, because we are convinced that it was
premature. The Supreme Court has made clear that the federal Ex Post Facto
Clause 13 does not provide a platform for the launching of speculative or
abstract complaints about changes to the criminal law, but requires that the
complainant be affected by the change in some real and concrete way. Dobbert
v. Florida, 432 U.S. 282, 300-01 (1977) (refusing to consider a claim that parole
ineligibility provisions added to a statute authorizing a life sentence amounted
in that case to an ex post facto violation, because the claimant did not receive a
life sentence); Morales, 514 U.S. at 509 (reversing grant of habeas corpus,
because statutory change allowing deferrals of parole reconsideration "create[d]
only the most speculative and attenuated possibility of producing the
prohibited effect[,] [i.e, increased punishment]. . and such conjectural effects
are insufficient" to establish a violation of the Ex Post Facto Clause); Weaver v.
Graham, 450 U.S. 24, 29 (1981) (noting that "two critical elements must be
13 There is no claim here that Section 19 of the Kentucky Constitution calls for
a different interpretation.
21
present for a criminal or penal law to be ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment, and it must
disadvantage the offender affected by it.") (footnotes and citations omitted,
emphasis added); cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(explaining that the "irreducible constitutional minimum of standing" includes,
among other elements, the requirement that "the plaintiff must have suffered
an 'injury in fact' . . . which is (a) concrete and particularized, . . . and (b)
actual or imminent, not 'conjectural' or 'hypothetical!) (citations and internal
quotation marks omitted).
At the time they brought their "due process"/"ex post facto" contentions
to the Court of Appeals, all of the defendants were still serving their sentences
and so had not even graduated to postincarceration supervision, much less
been confronted by a Parole Board revocation proceeding. None of them, in
other words, had yet been affected, and certainly not disadvantaged or injured,
in any concrete way by the amendment to KRS 532.043(5). There was every
possibility that the defendants would emerge from their terms of
postincarceration supervision without encountering the new revocation
process. Their concerns at the time they raised them were thus purely
conjectural. The Court of Appeals should not have addressed them.
Their claims, moreover, based solely on a facial analysis of the numerous
provisions of the new Parole Board regulations, also raise the sort of ripeness
concerns we discussed recently in W.B. v. Commonwealth, 388 S.W.3d 108 (Ky.
2012), another case in which the plaintiff challenged the constitutionality of a
22
complex administrative investigative procedure—the Department of Community
Based Services' process for investigating (and substantiating or not) allegations
of child abuse. Although in W.B. the agency had initiated the administrative
process, and thus confronted the plaintiff with a real enough risk of injury, we
nevertheless denied the plaintiff's request for a sort of preemptive
constitutional review ahead of the administrative action.
We did so, we explained, lest the lack of a concrete record involve us in
factual speculation and require us to address the statute more generally than
would be necessary were the case allowed to play out. "'Passing upon the
possible significance of the manifold provisions of a broad statute[,]"' we noted,
"in advance of efforts to apply the separate provisions is analogous to
rendering an advisory opinion upon a statute or a declaratory judgment upon a
hypothetical case."' 388 S.W.3d at 113 (quoting Communist Party of the United
States v. Subversive Activities Control Bd., 367 U.S. 1, 71 (1961)). Without "an
actual administrative proceeding to review," we worried, our consideration of
the case "would in large part be confined to engaging in an academic and
abstract view of the Cabinet's regulatory scheme. The basic rationale of the
ripeness requirement is to prevent the courts, through the avoidance of
premature adjudication, from entangling themselves in abstract
disagreements[.]'" 388 S.W.3d at 314 (quoting Abbott Labs. v. Gardner, 387
U.S. 136, 148 (1967), abrogated on other grounds by Califano' v. Sanders, 430
U.S. 99 (1977)). But abstract disagreement about the merits of judicial vis-d-
23
vis Parole Board revocation procedures and academic commentary on the
Parole Board's regulatory scheme are the essence of the defendants' claims.
Again, we decline the invitation to join that debate. We impose no undue
hardship by insisting that the defendants' claims must wait until they have
become concrete and immediate enough to implicate real ex post facto
concerns.
CONCLUSION
In sum, although we affirm the bottom line at which the Court of Appeals
arrived in these cases—i.e., affirmance of the trial court orders denying the
defendants' motions to amend their sentences, we "vacate," in effect, two
aspects of the Court of Appeals' Opinion.
We do not approve, first, the Court of Appeals' characterization of the
defendants' unlabeled trial court motions as RCr 11.42 motions. Trial courts
may characterize or recharacterize a pro se litigant's pleading as an initial
"11.42," to spare the litigant, for example, from the summary consequences of
an inappropriate label, or simply to clarify for all concerned the procedural
context and lay of the land. Before the trial court does so, however, it must
advise the litigant of its intention, warn the litigant that the characterization
will likely make it harder for the litigant to bring a subsequent motion under
that Rule, and allow the litigant an opportunity to withdraw the pleading or to
supplement it. Because generally an appellate court will not be in a position to
offer the litigant this opportunity to reconsider, it will generally be
inappropriate, and was inappropriate in this case, for the appellate court to
24
(re)characterize as an RCr 11.42 motion a pro se pleading. The defendants'
"motions to amend" in these cases should not, therefore, be used against them
as any sort of bar to their subsequent resort to RCr 11.42.
Also inappropriate, we are convinced, was the Court of Appeals' decision
to address the merits of the defendants' unpreserved and unripe "due
process"/"ex post facto" challenge to the amended version of KRS 532.043(5).
The defendants will have ample opportunity to raise that challenge if the Parole
Board ever invokes its new revocation procedures against them.
With these caveats, we hereby affirm the decision of the Court of Appeals to the
extent it affirms the trial courts' orders denying defendants' motions.
All sitting. All concur.
COUNSEL FOR APPELLANTS
JONATHAN MCDANIEL AND
DAVID DESHIELDS:
Meredith Krause
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLANT
JOHN C. MARTIN:
Margaret Anne Ivie
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEES:
Andy Beshear, Attorney General of Kentucky
Thomas Allen Van De Rostyne
Christian Kenneth Ray Miller
Assistant Attorney General
Office of the Attorney General
25 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126620/ | RENDERED: MAY 5,, 2016
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COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001697
FAYE'ITE CIRCUIT COURT NO. 12-CR-0136
CATON KAMIL JONES APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING
In our popular culture, operation of a criminal syndicate is commonly
associated with the underworld activities of mobsters and crime bosses. This
case involves none of those things. Today we must determine whether
wholesale enlistment of homeless men as tools in a scheme systematically to
defraud cell-phone companies is likewise covered under Kentucky's organized-
crime statute. We hold that it is.
I. FACTS AND PROCEDURAL BACKGROUND.
Caton Jones and Salena Anderson were Detroit, Michigan, residents with
a get-rich-quick plan. The plan involved driving to Lexington, Kentucky, and
employing homeless men to sign up for two-year cell-phone service contracts
with no intent to make payments in order to obtain high-end international
smartphones at discounted rates. A particular Blackberry phone with
international service was very popular on the secondary market and could be
purchased at a greatly discounted rate from service providers if the purchaser
agrees to a two-year service contract. Jones and Anderson would pay each
homeless person $20 for his efforts and resell the activated phones on the
secondary market to a great monetary windfall.
Lexington Police Department Detective Kevin Duane received a phone call
from the loss-prevention manager at an area Best Buy that a homeless man
was attempting to purchase a cell phone. Detective Duane went to the store
and approached the homeless man, ultimately convincing him not to purchase
the phone. He followed the man outside the store and observed him speaking
to another man in a van. Detective. Duane approached the man in the van and
learned he was from Detroit; the man eventually explained to the detective the
entire scheme. The Michigan man believed he was simply exploiting a loophole
in the law. For whatever reason, Detective Duane did not take him in for
questioning.
Over the course of the next several months, the Lexington Police
Department received reports from a number of cell-phone retailers that the
homeless cell-phone scam continued. But each time law enforcement arrived at
the store, the men (and the van) had already left. Later, Detective Duane finally
apprehended one of the phone purchasers. After reading the man his Miranda
rights, the man informed him he was a resident of a local homeless shelter and
he was recruited by people in a van offering each resident $20 for every cell
phone purchased. To be sure, the man had purchased several cell phones (and
contracts) that day. And he admitted to Detective Duane that he had no
intention of honoring the two-year service contract he signed at each location.
2
Detective Duane then followed the man outside the store to the van in
the parking lot. Around the same time, Jones was returning to the van from a
similar cell-phone retailer nearby. Detective Duane also found Anderson and a
number of other men sitting in the back of the van. Jones was very cooperative
with Detective Duane, and fully explained the situation. After obtaining
consent to search the van, he also discovered several cell phones, a
handwritten budget detailing the entire operation, and receipts for phones and
service contracts purchased by twelve different people. Jones and Anderson
were then taken to police headquarters and Jones provided a recorded
statement after receiving his Miranda warnings. Detective Duane then seized
all of their equipment and cell phones, leaving them just enough cash to return
to Detroit.
Jones and Anderson were charged with one count of "Engaging in
Organized Crime: Criminal. Syndicate by managing, supervising, and/or
directing individuals to acquire retail merchandise including cell phones, by
deception and/or fraud, with the intent to resell it." Detective Duane admitted
that though the homeless men could certainly be charged under the organized
crime statute as well, he intentionally chose not to penalize them "so he could
sleep at night." Jones appeared in court and knowingly and voluntarily waived
his right to counsel. He presented no evidence in his defense at trial, and the
jury found him guilty. The jury fixed his punishment at the statutory-minimum
five years' imprisonment.'
1 Anderson never appeared for trial; a warrant was issued but her charges were
dismissed without prejudice following Jones's conviction.
3
Jones filed two post-trial motions with the trial court seeking a new trial
and, alternatively, seeking to probate his sentence. The trial court denied a new
trial but agreed to probate his sentence. He was accordingly sentenced to the
minimal five-year sentence, probated for five years. Jones then appealed the
judgment to the Kentucky Court of Appeals, contending that he was entitled to
a directed verdict. The panel majority agreed and reversed his conviction,
concluding that there was insufficient evidence to prove he and his
conspirators collaborated under the "continuing basis" necessary to sustain an
organized-crime conviction.
We granted discretionary review to determine whether the
Commonwealth presented sufficient evidence for a jury to conclude beyond a
reasonable doubt that Jones engaged in a continuing criminal operation.
Reviewing the plain meaning of the statute's text, today we hold that Jones was
not entitled to a directed verdict. We accordingly reverse the Court of Appeals'
decision and reinstate the trial court's judgment.
II. ANALYSIS.
A. Standard of Review
For its first and only claim of error, the Commonwealth insists Jones was
not entitled to a directed verdict because the Commonwealth sufficiently proved
he was leading a continued criminal collaboration. At the close of the
Commonwealth's evidence, Jones moved the trial court for directed verdict on
the ground that he had not committed a crime. The trial court denied his
motion. To be sure, the Due Process Clause of the Fourteenth Amendment
certainly "protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he
is charged." 2 Our standard of review for denial of a directed verdict is whether,
under the evidence as a whole, it would be clearly unreasonable for the jury to
find Jones guilty. 3 We construe all evidence below in a light most favorable to
the Commonwealth. 4
B. Jones was not Entitled to a Directed Verdict.
The Kentucky Penal Code offers a broad description of precisely what
activity is subject to criminal liability for participation in organized crime.
Kentucky Revised Statutes (KRS) 506.120 establishes nine classes of activities
for which a "person, with the purpose to establish or maintain a criminal
syndicate or to facilitate any of its activities" may be subject to prosecution. 5 Of
these nine activities, six are potentially applicable to this case:
1. Organize or participate in a criminal syndicate or any of
its activities. 6
2. Provide material aid to a criminal syndicate or any of its
activities, whether such aid is in the form of money or
other property, or credit.'
3. Manage, supervise, or direct any of the activities of a
criminal syndicate, at any level of responsibility. 8
4. Commit, or conspire or attempt to commit, or act as an
accomplice in the commission of, any offense of a type in
which a criminal syndicate engages on a continuing
basis. 9
5. Commit, or conspire or attempt to commit, or act as an
accomplice in the commission of more than one (1) theft
2 In re Winship, 397 U.S. 358, 364 (1970).
3 See Commonwealth v. Fletcher, 59 S.W.3d 920, 921 (Ky. 2001).
4 See Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 1991).
5 KRS 506.120(1).
6 KRS 506.120(1)(a).
7 KRS 506.120(1)(b).
8 KRS 506.120(1)(c).
9 KRS 506.120(1)(e).
5
of retail merchandise with intent to resell the
merchandise.'°
6. Acquire stolen retail merchandise for the purpose of
reselling it where the person knew or should have known
that the merchandise had been stolen.il
Specifically, Jones was indicted for "managing, supervising and/or
directing numerous other individuals to acquire retail merchandise including
cell phones, by deception and/or fraud, with the intent to resell it." The
indictment most closely resembles the retail-merchandise-theft component of
the statute, though it also appears to incorporate Jones's culpability as the
leader and organizer of the scheme. Instructions to the jury provide more
clarity. It is unmistakable that the Commonwealth prosecuted Jones under a
theory that he engaged in a criminal syndicate to commit retail-merchandise
theft with the intent to resell the stolen merchandise.
There is no doubt that Jones organized, managed, and participated in
the scheme, he is the architect of the plan. But the most critical question in
determining Jones's criminal liability is whether his plan may be properly
labeled a "criminal syndicate." In fact, Jones denies any criminality in his
actions; rather, he contends he simply took advantage of the laws and exploited
a loophole, as any successful entrepreneur would. The statute offers
tremendous assistance in this inquiry. A criminal syndicate is defined as either
"five (5) or more persons, or, in cases of merchandise theft from a retail store for
the purpose of reselling the stolen merchandise, two (2) or more persons,
10 KRS 506.120(1)(h).
11 KRS 506.120(1)(i).
6
collaborating to promote or engage" 12 the commission of "any theft offense as
defined by KRS Chapter 514." 13
So in conducting our directed-verdict review, there are four elemental
conclusions that based on the evidence presented at trial a reasonable jury
must be able to reach beyond a reasonable doubt: (1) that a "theft" occurred in
furtherance of Jones's scheme; (2) that two or more persons were involved; (3)
that the persons collaborated in furtherance of the plan; and (4) that the
scheme operated on a continuing basis.
1. A theft occurred.
The threshold issue we must address is whether sufficient evidence was
presented at trial for the jury reasonably to conclude Jones's scheme was a
"theft." Though the statute's definition of "criminal syndicate" includes any
theft offense in KRS Chapter 514, the jury in this case was instructed on a
theory that Jones and his minions acquired the cell phones by deception—an
allegation Jones strongly denies. Instead, Jones suggests the phones were
legally purchased and he bears no liability from the homeless mens' failures to
perform on their two-year service contracts.
Under Kentucky law, a person is guilty of theft by deception if "the
person obtains property or services of another by deception with intent to
deprive the person thereof." 14 The statute further defines "deceive," in relevant
part, as intentionally "creat[ing] or reinforce[ing] a false impression, including
12 KRS 506.120(3)(emphasis added).
13 KRS 506.120(3)(c).
14 KRS 514.040(1).
false impressions as to law, value, intention, or other state of mind." 15 So
under the Commonwealth's theory of the case, theft by deception occurred
when Jones's homeless enlistees obtained the phones by signing a service
contract they had no intention of honoring. The Commonwealth presented
testimony from some of the homeless men verifying that they had no intention
of complying with the terms of the various service contracts they signed.
Jones rebuts the Commonwealth's theory primarily by denying that the
phones were unlawfully obtained. He argues that they were legally purchased
merchandise at the time of his arrest. The Commonwealth rebutted this
allegation with testimony from cell-phone company employees explaining
precisely how scams like Jones's affect their businesses. The employees
explained to the jury that the companies subsidize part of the cost of the phone
in exchange for a two-year service contract and the remaining cost of the phone
is recouped over the course of payment. Individual sales operatives work for
base pay plus commission. If someone cancels the service contract or does not
pay during the first 90 days of service, the lost money is taken from the
employee's paycheck. Moreover, employees testified that they believed that they
may be sued for discrimination if they refuse to sell devices to suspicious-
looking people. So the testimony adequately informed the jury that by
purchasing a phone and service contract with no intention to honor the
contract Jones and his team "deprived" these businesses in an immediate and
quantifiable manner.
is KRS 514.040(1)(a).
8
But Jones counters this testimony in two ways. He first defends the
legality of his activities by criticizing the phone companies' business models. To
him, there was no deprivation of property from the companies—they only made
a foolish business decision. Fortunately, Chapter 514 includes a robust
definition of deprive as applied to theft-related offenses. Under the Kentucky
Penal Code, deprive means either "No withhold property of another
permanently or for so extended a period as to appropriate a major portion of its
economic value or with intent to restore only upon payment of reward or other
compensation," 16 or to "dispose of the property so as to make it unlikely that
the owner will ever recover it." 17 To us, a reasonable jury could conclude that
either definition could apply: Jones intended permanently to withhold the
remaining portion of the subsidized cost of the phone.
Second, Jones suggests that his plan narrowly invokes a loophole in the
theft-by-deception statute. Specifically, he contends the provision declaring
that "deception as to a person's intention to perform a promise shall not be
inferred from the fact alone that he did not subsequently perform the promise"
categorically exculpates any potential theft offense relating to the service
contracts. But invoking this provision as a defense is logically fallacious; the
provision only stands for the proposition that failure to pay alone is not enough
to establish theft-by-deception. In the immediate case, the Commonwealth
presented ample testimony from Jones's associates affirmatively establishing
intent to deceive. Reliance on this provision as a complete defense is misplaced,
and it is certainly not enough to entitle Jones to a directed verdict.
16 KRS 514.010(1)(a).
17 KRS 514.010(1)(b).
9
There was sufficient evidence for a reasonable jury to find a theft
occurred.
2. There were more than two participants.
For our next inquiry, we must determine whether statutorily required
number of participants was involved in this scheme to qualify as a criminal
syndicate. As referenced above, the statute mandates either five or more
participants, or, in the case of retail-merchandise theft, two or more
participants.' 8 The Commonwealth charged Jones on the latter qualification,
and the instructions to the jury reflected that theory. In addition to Salena
Anderson, the Commonwealth identified at least a dozen homeless
participants. And some of them testified at trial. It is undisputed that the plan
was executed by a cadre of homeless men. So we can conclude that a
reasonable jury could find that the cell-phone scam was conducted by a group
of two or more participants.
3. The group collaborated in furtherance of the scheme.
The next element to establishing the existence of a criminal syndicate is
a requirement that participants "collaborated" to engage in theft by deception.
We have previously held that proof of collaboration does not require a showing
"that each participant in the criminal scheme collaborated with or was aware of
the collaboration of the other participants." 19 Similarly, "collaboration in the
statute means simply collaborating in the scheme, and it is not necessary for
the Commonwealth to show that each participant collaborating in the scheme
collaborated with or even was aware of the collaboration of the other
18 See KRS 506.120(3).
19 Edmonds v. Commonwealth, 906 S.W.2d 343, 348 (Ky. 1995).
10
participants." 20 So to us, the collaborating element is satisfied if the
Commonwealth can establish enough evidence of two or more participants with
general knowledge of the scheme to acquire fraudulently the international cell
phones. And we conclude the Commonwealth met this burden.
First and foremost, evidence of Anderson's involvement should be
enough to establish collaboration. From the facts presented in this case, it
would appear that Jones and Anderson are co-architects; at the very least
Anderson could be aptly described as an accomplice to Jones's plan with full
knowledge of what they hoped to achieve. Under the loose understanding of
collaboration that we have previously articulated, proof of Anderson's
involvement should be sufficient to take the charge to the jury. Anderson was
not prominently featured in the Commonwealth's proof, but her involvement
was at least referenced throughout the trial.
Even if we exclude Anderson from our calculus, the Commonwealth's
evidence of the homeless participants' complicity in the plan meets the
evidentiary burden as well. When Detective Duane received consent to search
Jones's van, he found receipts for two-year service contracts in the name of a
dozen different homeless men. And some of those men testified at Jones's trial
about their roles in the scheme—that Jones would give them $20 for each
phone they obtained by signing a service contract. This general understanding
that Jones asked them to acquire a cell phone by creating a false impression is
sufficient to us for a reasonable jury to determine two or more persons
collaborated to effectuate Jones's theft-by-deception plan.
20 Commonwealth v. Phillips, 655 S.W.2d 6, 9 (Ky. 1983).
11
4. The group collaborated on a continuing basis.
The final and most contentious inquiry in determining whether Jones's
plan can be characterized as a criminal syndicate is whether the plan was
intended to operate on a continuing basis. The Court of Appeals majority, in
reversing Jones's convictions, held that he was not guilty of operating a
criminal syndicate because there was insufficient evidence that he collaborated
on a continuing basis with the participants testifying at trial. The panel
majority's ruling misstates our prior interpretations of the statute's command.
In support of its decision reversing Jones's conviction, the Court of
Appeals majority relied on our recent holding in Parker v. Commonwealth. 21
And to be sure, we vigorously interpreted Kentucky's organized-crime statute in
its most paradigmatic application—gang-related violence and drug trafficking.
In Parker, we reversed a criminal defendant's criminal syndicate conviction
because the Commonwealth provided insufficient evidence to prove he
collaborated with four or more persons 22 on a continuing basis dealing drugs
as part of his association with the Crips gang. But there are critical
discrepancies in the present case that are distinct from Parker.
In Parker, we held that there was insufficient evidence of a continuing
basis because the Commonwealth's case centered on a "singular drug deal that
resulted in Barnes' death." 23 The Court of Appeals majority reached a similar
result in this case, taking issue that most of the Commonwealth's evidence
21 291 S.W.3d 647 (Ky. 2009).
22 Id. Because Parker was not indicted under a merchandise-theft theory, his
case was reviewed under the standard criminal-syndicate definition. So the
Commonwealth needed to prove five or more collaborators, rather than merely two or
more necessary for guilt in Jones's case.
23 /d. at 675.
12
zeroed-in on Jones's activity on one particular day. But in Parker, we also
reaffirmed that "[t]he Commonwealth is not held to proving any specific
number of incidents or any element of time, but must show by the proof what
the jury could infer from the evidence as intent to collaborate on a continuing
basis."24 Unlike Parker, where the evidence focused on one drug deal, the
Commonwealth in this case presented evidence of multiple purchases in a
single day, repeated criminal acts. Some homeless participants testified to
going to multiple stores in one day. And Jones made multiple trips to Lexington
to effectuate his plan. The Commonwealth did enough to ensure the jury knew
of far more than one instance in furtherance of the scheme, which Parker
strongly condemns as insufficient proof of a continuing basis.
We also refused to find a continuous collaboration in Parker because one
witness testified that "every man did their own thing." 25 Though the
Commonwealth in Parker pursued a criminal-syndicate theory premised on
drug trafficking, witness testimony stated that "the Crips made their own deals
and sold their own drugs. " 26 But such autonomy is unquestionably lacking in
this case. Though it is true each participant went into each store alone and
signed every contract individually, it is equally true he did so at Jones's behest.
Jones drove all of the men to each store, directed which store to enter, told
them which phone and plan to purchase, and compensated each man that
successfully returned with the international smartphone. It is clear from the
24 Id. (quoting Phillips, 655 S.W.2d at 9.).
25 Id. at 676.
26 Id.
13
Commonwealth's proof that each participant in Jones's scheme did not, in
contrast to Parker, "do their own thing."
And finally, as part of its continuing-basis analysis, the Court of Appeals
spent considerable time discussing whether Jones intended to continue his
scheme into the future. But this is an unnecessary inquiry. 27 Even if we
willingly suspend disbelief that Jones did not know he was perpetuating theft
and that after learning of the unlawful nature of his operation he would
abandon his business, there remains ample evidence that he was conducting
this collaboration on a continuing basis at the time of his arrest. At minimum,
the Commonwealth presented enough evidence to allow reasonable jurors to
decide for themselves.
5. Jones intended to form a criminal syndicate.
Much of the difficulty in this case is derived from the unconventional
nature of this factual application to Kentucky's organized-crime statute. But as
a reviewing body interpreting a statute, it is our duty to give effect to the plain
meaning of the statute's text. And "a person's mistaken belief that his conduct,
as a matter of law, does not constitute an offense does not relieve him of
criminal liability." 28 So it is immaterial to our analysis whether Jones
subjectively knew he was forming a criminal syndicate. The sole guiding factor
is whether the Commonwealth produced enough evidence to show that the text
encompasses his actions. And we hold the Commonwealth met this burden.
27 See Hill v. Commonwealth, 125 S.W.3d 221, 231 (Ky. 2004) (evidence that a
criminal scheme to smuggle marijuana into prison lasted for two to five months was
sufficient to support finding a criminal syndicate operating on a "continuing basis"
despite testimony that a participant planned to "get out").
28 KRS 501.070(3).
14
We have no doubt that Jones is no Mafioso. But the text crafted by the
legislature and 'signed into law by the governor covers more than the gangland
imagery synonymous with organized crime. The statute plainly criminalizes
organized efforts to engage in merchandise theft. And Jones created such an
organization whether he subjectively classified it as criminal or not.
III. CONCLUSION.
For the foregoing reasons, we reverse the Court of Appeals' decision and
reinstate the trial court's judgment.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General of Kentucky
Christian Kenneth Ray Miller
Assistant Attorney General of Kentucky
COUNSEL FOR APPELLEE:
Willie Edward Peale Jr.
Peale Law Office
15 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126630/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin A. Pezzano, :
Appellant :
: No. 2022 C.D. 2015
v. :
: Argued: October 19, 2016
Towamencin Township :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION BY
JUDGE McCULLOUGH FILED: February 16, 2017
Kevin A. Pezzano (Pezzano) appeals from the October 2, 2015 order
of the Court of Common Pleas of Montgomery County (trial court), sustaining the
preliminary objections of Towamencin Township (Township) and dismissing, with
prejudice, Pezzano’s complaint asserting a claim for breach of contract.
Pezzano was employed by the Township as its Fire Marshal, Code
Enforcement Officer, and Emergency Management Coordinator. On November
28, 2012, Pezzano was told that his employment would be terminated because the
Township was “too small” to have a full-time Fire Marshal. Pezzano and the
Township, by way of its Solicitor, entered into a Confidential Employee Separation
Agreement and General Release (Agreement) dated January 14, 2013, which
contained the following provision:
CONFIDENTIALITY
All parties agree that, at all times hereafter, the facts
relating to the existence, terms and conditions of this
Agreement and the allegations in this matter will be kept
confidential and will not be disclosed voluntarily to any
third party, except to the extent required by law, to
enforce this Agreement, or to obtain confidential legal,
tax or insurance advice with respect thereto. All parties
further agree to refrain from disparaging each other in
any fashion and to that end they will decline comment to
any third party regarding each other, provided, however,
that either may give sworn testimony about the other
party if required or compelled to do so in a legal action or
proceeding.
(Trial court op. at 1-2.)
On January 23, 2013, the Agreement was approved by a 3-2 vote of
the Township Board of Supervisors, with Supervisors David Mosesso (Mosesso)
and Harold Wilson (Wilson) dissenting. The Township’s Solicitor signed the
Agreement on behalf of the Township. Two days later, on January 25, 2013,
Mosesso and Wilson gave statements to a journalist for the newspaper The
Reporter. The next day, an article appeared in The Reporter in which Mosesso and
Wilson were quoted as stating that Pezzano was “dismissed for cause.” The article
was also available online. (Trial court op. at 2.)
On April 4, 2013, Pezzano and his wife Elizabeth filed an action in
the trial court (prior action) raising claims of defamation, invasion of privacy,
fraud, and loss of consortium against Mosesso and Wilson, and breach of contract
against the Township. The prior action alleged that Mosesso and Wilson had no
intention of honoring the confidentiality clause at the time the Agreement was
executed, and that their false statements harmed Pezzano’s veracity and
2
professional reputation. Mosesso, Wilson and the Township all filed preliminary
objections. (Reproduced Record (R.R.) at 34a.)
On November 20, 2013, the trial court sustained the preliminary
objections of Mosesso and Wilson and overruled the preliminary objections of the
Township. The trial court found that the defamation and invasion of privacy
claims against Mosesso were barred by immunity because his position as a second-
class township supervisor qualified him as a high public official and the comments
were made in the scope of his authority. The trial court found that the fraud claim
against both Mosesso and Wilson was legally insufficient because it contained no
well-pleaded material facts, was not stated with particularity, and was predicated
upon speculation and legal conclusions. Pezzano discontinued without prejudice
the prior action as to the Township and appealed the trial court’s ruling as to
Mosesso and Wilson. (R.R. at 26a-31a, 35a-39a.)
In an unpublished panel decision, this Court affirmed the trial court’s
decision sustaining the preliminary objections. Pezzano v. Mosesso (Pa. Cmwlth.,
Nos. 189 C.D. 2014 and 190 C.D. 2014, filed October 24, 2014) (Pezzano I).
Notably, we held that any statements made by Mosesso explaining his vote and the
rationale for his vote were within the course of his legitimate duties and within his
authority; therefore, the trial court did not err in determining that he was entitled to
high public official immunity with respect to the defamation and invasion of
privacy claims. (R.R. at 41a-55a.)
On April 24, 2015, Pezzano filed a second complaint against the
Township alleging a single count of breach of contract, namely the confidentiality
provision of the Agreement. Pezzano claims that the Township breached the
Agreement because Mosesso and Wilson voluntarily provided comment to a
journalist in which they disclosed the existence and terms of the Agreement, and
3
because the statement that Pezzano was “dismissed for cause” was false and
disparaging. The Township filed preliminary objections alleging legal
insufficiency based upon this Court’s prior decision in Pezzano I; failure to state a
claim for breach of contract for failure to show disparagement by the Township;
Township immunity; the “Gist of the Action” doctrine; and a motion to strike
allegations of damages related to defamation. Following oral argument and the
filing of briefs, the trial court issued an order dated October 2, 2015, sustaining the
Township’s preliminary objections and dismissing Pezzano’s complaint with
prejudice. Pezzano then filed a notice of appeal with the trial court. (R.R. at 2a-
24a.)
In its Pa.R.A.P. 1925(a) opinion, the trial court noted that Pezzano’s
complaint solely alleged a breach of contract claim, which requires him to plead
the following: (1) the existence of a contract, including its essential terms; (2) a
breach of duty imposed by the contract; and (3) resultant damages. General State
Authority v. Coleman Cable and Wire Co., 365 A.2d 1347, 1349 (Pa. Cmwlth.
1976). The trial court stated that the law is clear that a contract action cannot be
maintained against a person who is not a party to the contract, unless the plaintiff is
a third-party beneficiary of the contract or the suit is for products liability or breach
of warranty. Commonwealth, State Public School Building Authority v. Noble, 585
A.2d 1136, 1140 (Pa. Cmwlth. 1991). In this case, the trial court noted that
because Supervisors Mosesso and Wilson did not sign, and were not parties to, the
Agreement, they were not bound thereby and their actions could not be a basis for
breach of the same.
The trial court also rejected an agency argument raised by Pezzano,
referencing our prior opinion wherein we held that the Township’s Supervisors
were not bound by the terms of the Agreement simply because of their
4
employee/agency status with the Township. In our prior opinion, we explained
that the Solicitor represented the Township, not individual members, and the
Solicitor cannot make an agreement that would preclude a council person from
explaining why he/she voted a particular way. Finally, the trial court stated that a
master such as the Township cannot be held liable for the actions of its servant
unless there is a cause of action against the servant. Leis v. Mosesso (Pa. Cmwlth.,
Nos. 249-251 C.D. 2014, filed April 17, 2015), 2015 Pa. Commw. Unpub. LEXIS
274.1 The trial court noted that our prior opinion rejected any cognizable cause of
actions against Supervisors Mosesso and Wilson. With no cause of action against
the agents, i.e., the Supervisors, the trial court concluded that there was no basis for
a cause of action against the Township.
On appeal to this Court,2 Pezzano argues that the trial court erred in
sustaining the Township’s preliminary objections because he and the Township,
1
Joseph Leis had worked as the Township’s Director of Community Planning, but was
separated from his employment at the same time as Pezzano. He executed an identical
confidentiality agreement and was subject to the same comments from Supervisors Mosesso and
Wilson, which led to his filing of a complaint alleging claims of defamation, business and trade
disparagement, invasion of privacy, tortious interference with contract, tortious interference with
prospective contractual relationships, and breach of contract against the Supervisors and the
Township. Similar to this case, the trial court sustained preliminary objections filed by the
Supervisors and the Township and dismissed Leis’s complaint. This Court affirmed in the
unpublished decision cited above.
2
Our review of a trial court order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court committed an error of law or abused
its discretion. Myers v. Montgomery County, 92 A.3d 102, 106 n.5 (Pa. Cmwlth. 2014).
Preliminary objections should be sustained only when the law makes clear that the plaintiff
cannot succeed on his claim, and any doubts must be resolved in favor of the plaintiff. Id.
Additionally, when ruling on preliminary objections, courts must accept as true all well-pleaded
material allegations in a complaint and any reasonable inferences that may be drawn from the
averments. Id.
5
which can only act through its Supervisors, entered into an express written contract
which was breached by Supervisors Mosesso and Wilson acting on the Township’s
behalf. The Township responds that its Solicitor, not Supervisors Mosesso and
Wilson, signed the agreement on its behalf and that an individual council member
does not have an agency relationship with the Solicitor. Additionally, the
Township asserts that a contract action cannot be maintained against a person who
is not a party to the contract, unless the plaintiff is a third party beneficiary of the
contract or the suit is for products liability or breach of warranty. State Public
School Building Authority v. Noble C. Quandel, Co., 585 A.2d 1136, 1140 (Pa.
Cmwlth. 1991). However, the Township’s assertions are misplaced.
The contract at issue in this case, i.e., the Agreement, was executed by
Pezzano and the Township’s Solicitor, on behalf of the Township itself. Pezzano
initiated the present suit against the Township, which is in fact a party to the
Agreement. While the Township relies on this Court’s 2014 unpublished decision
relating to Pezzano’s initial complaint, wherein we stated that an individual council
member does not have an agency relationship with the Solicitor, this argument
misses the mark as the issue here is the relationship of Supervisors Mosesso and
Wilson to the Township, not the Solicitor who acts on its behalf and at its
direction. Moreover, the facts of the prior action are distinguishable.
Significantly, in the prior action, Pezzano had initiated a cause of action against
Supervisors Mosesso and Wilson sounding in tort, i.e., defamation, invasion of
privacy, and fraud, and against which Supervisors Mosesso and Wilson enjoyed
high public official immunity.
Additionally, the statement made by this Court, and upon which the
Township now relies, was in response to an allegation of fraud in negotiating the
Agreement, a process in which the Solicitor, not Supervisors Mosesso and Wilson,
6
participated. Indeed, we went on to state in that case that “the only party bound by
the Agreement is the Township . . . .”3 Pezzano I, slip op. at 12. Here, however,
the claim brought by Pezzano does in fact allege a breach of contract claim against
the Township, the party with whom he directly contracted.
The Township’s reliance on our previous decision in Leis is similarly
misplaced. In that case, Leis had specifically alleged that false statements were
made by Supervisors Mosesso and Wilson outside their authority as members of
the Board, outside the scope of their official duties, and outside of their authority to
act or speak on behalf of the Township. Additionally, we noted in Leis that
Supervisors Mosesso and Wilson were not signatories to the Agreement and,
hence, were not subject to a breach of contract claim. Because Leis’s underlying
claims against Supervisors Mosesso and Wilson failed, we held that any claims for
respondeat superior against the Township also failed. However, our discussion
did not consider the fact that Leis, similar to Pezzano herein, brought his breach of
contract action directly against the Township.
To the extent the Township contends Leis stands for the proposition
that a breach of contract claim cannot exist against the Township, this argument is
specifically rejected. Generally, a township is bound to the terms of a legally
executed contract. Aston v. Southwest Delaware County Municipal Authority, 535
A.2d 725, 728-29 (Pa. Cmwlth. 1988) (holding that a township was bound to the
terms of a contract that was executed in accordance with its statutory authority).
Here, despite the negative votes of Supervisors Mosesso and Wilson, the Township
ultimately approved the Agreement with Pezzano. More importantly, Pezzano has
3
We also stated in Pezzano I that “a solicitor cannot make an agreement that would
preclude a council person from explaining why he or she voted” a particular way. (Slip op. at
12.)
7
alleged in his complaint that Supervisors Mosesso and Wilson were agents and/or
officers of the Township at all relevant times, an allegation that must be accepted
as true in ruling on the Township’s preliminary objections in the nature of a
demurrer. Myers. Indeed, in Pezzano I, Supervisors Mosesso and Wilson asserted
immunity on the basis that their actions in speaking with the journalist were in the
course of their official and legitimate duties and within the scope of their authority.
Moreover, as the Honorable Senior Judge Friedman explained in her
dissent in Leis, it is well settled that “a corporation can only act through its
officers, agents, and employees.” Tayar v. Camelback Ski Corporation, Inc., 47
A.3d 1190, 1196 (Pa. 2012); see also Maier v. Maretti, 671 A.2d 701, 707 (a
corporation acts only through its agents and officers, and such agents or officers
cannot be regarded as third parties when they are acting in their official capacity).
Similar to a private corporation, a political subdivision “can only act or carry out
its duties through real people -- its agents, servants or employees.” Weatherly Area
School District v. Whitewater Challengers, Inc., 616 A.2d 620, 621 (Pa. 1992)
(citation omitted). Subsequently, “under the doctrine of vicarious liability, the
corporation, not the employee, is liable for acts committed by the employee in the
course of employment.” Tayar, 47 A.3d at 1196; see also Rinaldi v. Board of
Vehicle Manufacturers, Dealers and Salespersons, 843 A.2d 418, 421 (Pa.
Cmwlth. 2004) (“corporations are necessarily required to conduct their business
through agents and they are bound by the acts of their representatives within the
apparent scope of the business with which they are entrusted”) (citation omitted).
The Agreement executed between Pezzano and the Township
included specific confidentiality requirements relating to Pezzano’s separation
from his employment. The Supervisors, as agents and officers through which the
Township necessarily acts, approved such agreement on behalf of the Township.
8
As this Court recognized in Pezzano I, there is clearly no question that the
Township was bound by the terms of the agreement which it so approved.
Pezzano I, slip op. at 12.
The Township has admitted that Supervisors Mosesso and Wilson
were also agents acting in their official capacity on behalf of the Township when
they disclosed the terms of the confidential Agreement to the newspaper journalist.
Such disclosure clearly violated the terms of the confidential Agreement to which
the Township was bound. As this Court clarified in Pezzano I, the question of
whether Supervisor Mosesso breached the confidentiality clause is of no moment
in determining whether he is immune from a civil suit for damages on the basis of
high public official immunity. Unlike Pezzano I, we are not determining a
question of high public immunity; rather, here, we are concerned with the
obligation of the Township for a breach of a contract to which it was bound.
The extent to which Supervisors Mosesso and Wilson may have high
public immunity, or to which they could have expressed their opposition to the
Agreement without discussing the confidential terms thereof, we do not here
address. The outcome here is dictated by the terms of the Agreement as approved
by the Township, i.e., the contractual obligation which it assumed. Our decision
should not be read as a limitation of a public official’s rights of free speech or
his/her duty to keep the electorate informed. Rather, a Township is liable for its
contractual obligations and, as consistent with Tayar, vicariously liable for the
breach of such obligations by its agents. Thus, the trial court erred in sustaining
the Township’s preliminary objections.
9
Accordingly, the order of the trial court is reversed and the matter is
remanded to the trial court for further proceedings.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin A. Pezzano, :
Appellant :
: No. 2022 C.D. 2015
v. :
:
Towamencin Township :
ORDER
AND NOW, this 16th day of February, 2017, the order of the Court of
Common Pleas of Montgomery County (trial court), dated October 2, 2015, is
hereby reversed. The matter is remanded to the trial court for further proceedings.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin A. Pezzano, :
:
Appellant :
:
v. : No. 2022 C.D. 2015
: Argued: October 19, 2016
Towamencin Township :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
DISSENTING OPINION
BY JUDGE WOJCIK FILED: February 16, 2017
I respectfully dissent. Pezzano does not dispute that he sued the
Township, the party with whom he contracted directly, based upon the actions of
the Township’s agents or employees. He argues that a contract can be breached by
the actions of one who is not a party to that contract. He claims that just like a
private corporation, the Township can only act or carry out its duties through
people such as its agents or employees. He asserts that Mosesso’s and Wilson’s
statements were made as agents of the Township within the scope of their duties,
and these actions can be imputed to the Township in a breach of contract action.
As a result, Pezzano claims that the trial court erred in dismissing his breach of
contract claim against the Township.
We addressed Pezzano’s agency argument in an unreported opinion1
based on an identical set of facts in Leis v. Mosesso, (Pa. Cmwlth., Nos. 249 C.D.
2014, 250 C.D. 2014, 251 C.D. 2014, filed April 17, 2015).2 In that case, we
explained that “[u]nless a cause of action exists against the defendant Supervisors,
the Township cannot be held liable.” Id., slip op. at 8 (citing Mamalis v. Atlas Van
Lines, Inc., 528 A.2d 198 (Pa. Super. 1987), aff’d, 560 A.2d 1380 (Pa. 1989) and
Skalos v. Higgins, 449 A.2d 601 (Pa. Super. 1982)). In a prior appeal, we affirmed
the dismissal of Pezzano’s defamation claims against Mosesso and Wilson because
they enjoyed absolute immunity. Pezzano v. Mosesso, (Pa. Cmwlth., Nos. 189
C.D. 2014, 190 C.D. 2014, filed October 24, 2014), slip op. at 6-11. While the
instant matter is purportedly a contract action against the Township, it cannot be
based on the privileged statements of Mosesso and Wilson who were not
signatories to the Agreement. See Leis, slip op. at 8 (“Here, neither of the
defendant Supervisors were parties or signatories to the Agreement. Accordingly,
Leis would have no claim for breach of contract against the defendant
Supervisors. . . . Because Leis’s underlying claims for breach fail against the
1
See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).
2
The plaintiff, Joseph Leis, filed a complaint alleging, inter alia, a breach of contract
claim against the Township for the purported violation of an identical confidentiality clause
contained in his Confidential Employee Separation Agreement and General Release. As in the
instant case, the Township’s Solicitor signed the Agreement on the Township’s behalf and
Mosesso and Wilson then made statements to a journalist regarding the termination of Leis’s
employment.
MHW - 2
defendant Supervisors, it necessarily follows that any claims for respondeat
superior against the Township must also fail.”).3
Accordingly, unlike the majority, I would affirm the order of the
Montgomery County Court of Common Pleas.
MICHAEL H. WOJCIK, Judge
3
That does not mean that Pezzano does not have a remedy because he may seek
rescission of the Agreement on the basis that there was a mutual mistake. As the Superior Court
has explained:
The doctrine of mutual mistake of fact serves as a defense to the
formation of a contract and occurs when the parties to a contract
have an erroneous belief as to a basic assumption of the contract at
the time of formation which will have a material effect on the
agreed exchange as to either party. A mutual mistake occurs when
the written instrument fails to . . . set forth the “true” agreement of
the parties. [T]he language of the instrument should be interpreted
in light of the subject matter, the apparent object or purpose of the
parties and the conditions existing when it was executed.
Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 410 (Pa. Super. 2010) (citation omitted). In
this case, the parties to the Agreement were apparently mistaken that they could regulate the
immunized statements of two of the Township’s high elected officials.
MHW - 3 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126647/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3348
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kunta Laushan Brown
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
____________
Submitted: February 14, 2017
Filed: February 16, 2017
[Unpublished]
____________
Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
____________
PER CURIAM.
Kunta Brown directly appeals the sentence the district court1 imposed after he
pleaded guilty to drug and firearm charges. His counsel has moved to withdraw and
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
has filed a brief under Anders v. California, 386 U.S. 738 (1967), questioning the
reasonableness of Brown’s sentence.
Upon careful review, we conclude that the district court did not impose an
unreasonable sentence. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir.
2009) (en banc) (explaining that sentences are reviewed under deferential abuse-of-
discretion standard and discussing substantive reasonableness). In addition, having
independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988),
we find no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion
to withdraw, and we affirm.
______________________________
-2- | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4399124/ | Petition for Writ of Mandamus Denied and Memorandum Opinion filed May
21, 2019.
In The
Fourteenth Court of Appeals
NO. 14-19-00379-CV
IN RE YOUSEF ELDIRAOUI, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
240th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCV-247500
MEMORANDUM OPINION
On May 9, 2019, relator Yousef Eldiraoui filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (Supp.); see also Tex.
R. App. P. 52. In the petition, relator asks this court to compel the Honorable Frank
J. Frayley, presiding judge of the 240th District Court of Fort Bend County, to vacate
his March 5, 2019 order on Plaintiff’s Second Motion to Compel Discovery
Responses, in which the judge overruled all of relator’s objections to the discovery
requests at issue.
Relator also filed a motion asking our court to stay all proceedings in the trial
court pending this court’s decision on his petition for mandamus relief. See Tex. R.
App. P. 52.10.
With certain exceptions not applicable in this proceeding, to obtain mandamus
relief, a relator must show both that the trial court clearly abused its discretion and
that the relator has no adequate remedy at law, such as an appeal. In re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Relator has
not established that he is entitled to mandamus relief. We therefore deny relator’s
petition for writ of mandamus and motion for stay.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Spain and Poissant.
2 | 01-03-2023 | 05-21-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4124994/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 17, 2016
Mr. James M. Bass Opinion No. KP-0070
Executive Director
Texas Department of Transportation Re: Whether Senate Bill 374, requiring state
125 East 11th Street agency participation in the E-Verify program,
Austin, Texas 78701-2483 supersedes Executive Order RP-80
(RQ-0055-KP)
Dear Mr. Bass:
Your predecessor requested an attorney general opinion regarding whether Senate Bill 374,
requiring state agency participation in the E-Verify program, supersedes Executive Order RP-80
(the "Order"). 1 As background, the request letter indicates that in 2014, "Governor Rick Perry
issued Executive Order No. RP-80, requiring all agencies under the direction of the governor ...
to utilize the U.S. Department of Homeland Security's E-Verify program ... to determine the
employment eligibility of certain executive agency employees and contractor employees,"
including "all contractors and subcontractors performing work under a contract for services with
executive agencies." 2 Request Letter at 1. "Thereafter, the 84th Texas Legislature passed Senate
Bill 374, effective September 1, 2015, requiring all state agencies to participate in the federal E-
Verify program"; however, Senate Bill 374 did "not address the employment eligibility
verification requirement for contractors and subcontractors." Id. Given these parameters, your
predecessor asked whether "Senate Bill 374 ... supersede[s] and completely replace[s] all aspects
of' the Order and, if not, whether agencies under the direction of the Governor are still obligated
to verify the employment eligibility of their contractors and subcontractors. Id.
Senate Bill 374 added chapter 673 to the Government Code, which provides in section
673.002 that "[a] state agency shall register and participate in the E-Verify program to verify
information of all new employees.'' TEX. Gov'T CODE§ 673.002. For purposes of chapter 673,
the term "state agency" is defined broadly to include "a department, commission, board, office, or
other agency of any branch of state government, including an institution of higher education." See
id. § 659.101 (defining "state agency"); see also id. § 673.001(2) (providing that '"state agency'
has the meaning assigned by Section 659.101"). The term includes all state agencies regardless of
whether they are governed by gubernatorial appointees. Thus, section 673.002 differs from the
'See Letter from LtGen. J.F. Weber, USMC Ret., Exec. Dir., Tex. Dep't of Transp., to Honorable Ken
Paxton, Tex. Att'y Gen. at 1--2 (Sept. 18, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter").
2
The request letter notes that the Order as drafted was the subject of a subsequent guidance letter clarifying
the Order's inapplicability to current employees. See Request Letter at I.
Mr. James M. Bass - Page 2 (KP-0070)
Order in terms of who must comply with the requirement of verifying employment eligibility.
Another difference is that section 673.002 mandates the employment eligibility verification only
of"new employees" and not contractors and subcontractors. Section 673.002 does not, therefore,
supersede the portion of the Order requiring verification of contractors and subcontractors.
In sum, section 673.002 of the Government Code supersedes the Order with respect to the
requirement that all state agencies must verify the employment eligibility of new employees
through E-Verify. With respect to the verification of employment eligibility of contractors and
subcontractors by state agencies under the direction of the Governor, section 673.002 does not
specifically preempt or supersede the Order.
Mr. James M. Bass - Page 3 (KP-0070)
SUMMARY
Section 673.002 of the Government Code supersedes
Executive Order RP-80 with respect to the requirement that all state
agencies must verify the employment eligibility of new employees
through the Department of Homeland Security's E-Verify program.
With respect to the verification of employment eligibility of
contractors and subcontractors by state agencies under the direction
ofthe Governor, section 673.002 does not specifically supersede or
preempt Executive Order RP-80.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125016/ | KEN PAXTON
ATTORNEY GENERAL OF TEX.AS
September 28, 2015
The Texas Constitution and sections 402.042 and 402.043 of the Government Code irant the
attorney general authority to issue attorney general opinions. An attorney general opinion is a
written interpretation of existing law. The development of an attorney general opinion is an
involved and thorough process involving many layers of comprehensive review. Attorney general
opinions do not necessarily reflect the attorney general's personal views, nor does the attorney
general in any way "rule" on what the law should say. As have those that have come before it,
this administration strives to craft opinions with the greatest level of legal accuracy and without
any hint of impropriety.
By its very nature, the. attorney general opinion process invites a variety of legal issues to be
brought before our office for analysis and review. The questions asked are outside the scope of
this office's control, and some of the questions to be addressed may raise actual or perceived
conflicts of interest" for the Attorney General and his staff. Consistent with applicable statutes and
rules, staff members involved in the opinion process must recuse themselves from matters in which
there may exist an actual or perceived conflict of interest. Accordingly, pursuant to section
. 402.001 of the Government Code, I delegate my signature authority in the attorney general opinion
process to the First Assistant Attorney General, Charles E. Roy, for those opinions in which I may
have an actual or perceived conflict of interest or in which my involvement gives even the
appearance of impropriety. Any such opinion signed by the First Assistant under this delegation
carries the full force of an attorney general opinion.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
December 21, 2015
The Honorable Glenn Regar
Texas Comptroller of Public Accounts
Post Office Box 13528
Austin, Texas 78711-3528
Dear Comptroller Regar:
In the process of reviewing this matter, this office concludes there could be an actual or
perceived conflict of interest such that the Attorney General has recused himself from any
participation on the matter. Accordingly, pursuant to Government Code section 402.001 and the
authority delegation issued by the Attorney General on September 28, 2015, the First Assistant
Attorney General will sign this opinion. Any such recusal is intended to go beyond the letter and
spirit of the governing law and rules in order to avoid even the appearance of impropriety and to
demonstrate our ongoing commitment to the highest ethical standards.
Charles E. Roy
First Assistant Attorney General
CER:lly
December 21, 2015
The Honorable Glenn Regar Opinion No. KP-0048
Texas Comptroller of Public Accounts
Post Office Box 13528 Re: Effect of the Governor's vetoes of the
Austin? Texas 78711-3528 General Appropriations Act (RQ-0047-KP)
Dear Comptroller Regar:
.You ask for an opinion "on the effect of certain parts of the Governor's veto proclamation
for House Bill 1, the General Appropriations Act," enacted during the Eighty-fourth Legislature. 1
Request Letter at 1. Article 4, section 14 of the Texas Constitution authorizes the Governor to
veto items of appropriation:
If any bill presented to the Governor contains several items of
appropriation he may object to one or more of such items, and
approve the other portion of the bill. In such case he shall append
to the bill, at the time of signing it, a statement of the items to which
he objects, and no item so objected to shall take effect.
TEX. CONST. art. IV,§ 14.
The Texas Supreme Court has twice taken the opportunity to construe this provision. In
Fulmore v. Lane, 140 S.W. 405 (Tex. 1911), the Court addressed the Thirty-second Legislature's
appropriations bill, wherein it appropriated to the Attorney General's department "the sum of
eighty-three thousand and one hundred and sixty ($83, 160) dollars, to be expended during the two
fiscal years ending August 31, 1912, and August 31, 1913." Id at 407. Below this general
statement in the appropriations bill, the sum of $83,160 was divided and placed in separate
columns, "one for $41,5 80 available for the year ending August 31, 1912, and a like sum for the
year ending August 31, 1913." Id. at 410. In his veto message, the Governor "vetoed the lump
sum of $83,160 appropriated to the Attorney General's department" and further explained that
"[b]y striking out the lump appropriation and the words describing the same, and the appropriation
of $41,580 for the second year, the sum of $41,580 is left subject to the use of the Attorney
General[.]" Id. at 408. Contrary to the argument that the Legislature made only one item of
appropriation in the sum of $83,160, the Court held that "there were two items of appropriation
1
Letter from Honorable Glenn Hegar, Tex. Comptroller of Pub. Accounts, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Aug. 26, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs (hereinafter
"Request Letter"); see General Appropriations Act, 84th Leg., R.S., ch. 1281, § 1, 2015 Tex. Gen. Laws 4343
(hereinafter the "Act"); Veto Message of Gov. Abbott, Tex. H.B. 1, 84th Leg., R.S. (2015) (located at 2015 Tex.. Gen.
Laws 5298-5307) (hereinafter "Proclamation").
The Honorable Glenn Regar - Page 2 (KP-0048)
for the Attorney General's department." Id. at 411. Thus, the Governor lawfully vetoed the
appropriation for the second year but "left available the item of $41,580 appropriated for the first
fiscal year." Id. With regard to the Governor's striking of the lump sum of $83,160, the Court
explained that such clause "was surplusage and its elimination in no manner affected either of the
two items of appropriation." Id.
In Jessen Associates v. Bullock, 531S.W.2d593 (Tex. 1975) (orig. proceeding), the Court
address~d the Governor's attempt to veto a rider to the appropriations bill that authorized the
construction of certain enumerated projects by the Board of Regents of the University of Texas
System. Id at 596-97. In analyzing whether the specific rider in question was an "item of
appropriation" and thereby subject to the Governor's veto, the Court explained that "if the
provision which the Governor attempted to veto . . . is merely language qualifying an
appropriation, or directing its uses, then the veto is of no effect." Id. at 598. On the other hand,
"[w]here a certain provision designates a specified purpose and the amount to be used theref9r, it
is an item of appropriation even though it may be included in a larger, more general item." Id. at
599. Concluding that the rider did not itself set aside any funds, the Court held that the "Governor
... exceeded the power granted to him ... in attempting to veto the rider." Id. at 600.
While the Court in Jessen concluded that the particular rider in question was not an
appropriation, opinions from prior attorneys general have emphasized that riders are not immune
from the Governor's veto if they include "items of appropriation." See Tex. Att'y Gen. Op. No.
0-3685 (1941) at 3 ("a rider of this type constitutes an item of appropriation ... and is subject to
the veto power of the Chief Executive"). "The Governor has no authority to veto a rider in an
appropriation bill unless it is in itself an item of appropriation." Tex. Att'y Gen. Op. No. M-1199
(1972) at 2 (emphasis added). "No particular form, or method, or verbiage, is required to constitute
an item of appropriation." Tex. Att'y Gen Op. No. 0-3685 (1941) at 2. It is with these authorities
and principles in mind that we consider your specific questions concerning the Governor's vetoes
of the Eighty-fourth Legislature's General Appropriations Act.
I. Texas Facilities Commission
Your first and second sets of questions concern the Governor's veto of provisions in the
Act relating to certain funds for the Facilities Commission. Request Letter at 5-7. In particular,
for the fiscal year ending August 31, 2016, the Act allocates to the Facilities Commission
$983,665,000 for construction of buildings and facilities, listing seven specific projects and a
corresponding amount for each. See Act, art. I-42 at 4397. The Governor struck three of those
projects and their corresponding amounts from the Act: $132,000,000 for the G. J. Sutton Building
Replacement, $26,000,000 for the Elias Ramirez State Office Building - New Parking Garage,
and $5 7,995, 000 for acquisition and relocation of the Department of Motor Vehicles Headquarters.
Proclamation at 5300-01; Act, arts. I-41 & I-42 at 4396-97 (3.e.(5)-(7)). The Act states thatthese
amounts "shall be expended only for the purposes shown and are not available for expenditure for
other purposes." Act, art. I-41at4396 (3.). These three allocations therefore set aside funds for a
specified purpose and are items of appropriation. See Jessen, 531 S.W.2d at 599. The Governor's
veto of said items results in those funds not being appropriated to the Facilities Commission. See
TEX. CONST. art. IV, § 14 ("no item so objected to shall take effect").
The Honorable Glenn Regar - Page 3 (KP-0048)
·The Legislature did not allocate separate funds for these projects for the fiscal year ending
August 31, 2017; however, the Act includes, and the Governor struck, the unexpended balance
appropriation for each of these projects. 2 Act, art. I-42 at 4397 (4.); Proclamation at 5301. Because
the Governor's veto nullifies the appropriations for the fiscal year ending August 31, 2016, no
unexpended balances of the appropriations would occur for the following fiscal year, and the
Governor's striking of these appropriations is likely an acknowledgment of that fact. See Tex.
Att'y Gen. Op. No. MW-51 (1979) at 6 (concluding that two provisions appropriating unspent
balances were items of appropriation subject to the Governor's veto).
As you note, these specific items of appropriation vetoed by the Governor were included
as part of larger sums allocated earlier in the Act. See Request Letter at 6. The Texas Supreme
Court explained in Jessen that "[w]here a certain provision designates a specified purpose and the
amount to be used therefor, it is an item of appropriation even though it may be included in a
larger, more general item." Jessen, 531 S.W.2d at 599. The Act allocates $1,288,649,445 to the
Facilities Commission. Act, art. I-39 at 4394. The Act then divides this sum into four "Goals,"
which each include one or more "Strategies." Id. Goal A addresses "Facilities Construction and
Leasing," and Strategy A.2.1. allocates $988,291,706 for Facilities Design and Construction. Id.
You question whether that Strategy should be reduced by the amount of the vetoed appropriations.
Request Letter at 6. Language in the Act indicates that at least two of the amounts vetoed were
included in the previously articulated Strategy A.2.1. Act, art. I-46 at 4401 (20., 22.) (stating that
included in the amounts appropriated in Strategy A.2.1 were the appropriations for the Department
of Motor Vehicles Headquarters and the G.J. Sutton Building Replacement). And both the amount
of funds allocated to Strategy A.2.1 and the Strategy's stated purpose indicate that it likely includes
the specific funds appropriated for the three projects that were vetoed by the Governor. 3 Act, art.
I-39 at 4394. Regardless of which Strategy the Legislature intended for the specific appropriations
at issue, however, the effect of the Governor's veto is to reduce by $215,995,000 the funds
appropriated to the Facilities Commission by the Act.
With regard to vetoes, the Governor's "authority is purely negative." Fulmore, 140 S.W.
at 412. An effective veto nullifies the setting aside of an amount of funds for a specific purpose.
If additional funds apart from what was vetoed by the Governor are available, and if authority
outside of the veto permits expenditure of those funds for a given purpose, an agency is likely
authorized to spend its other funds accordingly. In this particular instance, however, the Act
provides that the funds appropriated to the Facilities Commission for capital budget items "shall
be expended only for the purposes shown." Act, art. I-41at4396 (3.). Because the three purposes
at issue are now struck from the Act by virtue of the Governor's veto, funds appropriated to the
2
See Act, art. IX-26 at 5191 (Sec. 6.01) ("A reference in this Act to 'unexpended balance' or 'UB' is a
reference to the unobligated balance of an amount appropriated by this Act for the fiscal year ending August 31, 2016,
unless another meaning is clearly indicated.").
3
The total sum of appropriations for the seven projects listed is $983,665,000, see Act, art. I-42 at 4397
(3 .e.(7)), and Strategy A.2.1. is the only Facilities Commission Strategy that was allocated funds that equal or exceed
that amount. Act, art. I-39 at 4394 (A.).
The Honorable Glenn Hegar - Page 4 (KP-0048)
Facilities Commission by the Act for capital budget items may not be used for the three vetoed
projects.
You also ask about the Governor's veto of Riders 20 and 22. See Request Letter at 6.
These Riders are duplicative of the appropriations vetoed by the Governor for acquisition and
relocation of the Department of Motor Vehicles Headquarters and for the G. J. Sutton Building
Replacement. See, e.g., Act, art. I-46 at 4401 (20.) ("Included in the amounts appropriated to the
Texas Facilities Commission, in Strategy A.2.1, Facilities Design and Construction, is
$57,995,000 in Revenue Bond Proceeds in fiscal year 2016 for acquisition and relocation to a new
headquarters space for the Texas Department of Motor Vehicles[.]"). Upon his decision to veto
those items, Riders 20 and 22 became surplusage, and the striking of these paragraphs simply
reinforces the veto of the capital budget items and corresponding reduction of funds disc;:ussed
above.
II. Texas Department of State Health Services
Your third set of questions relates to the Governor's veto of funds for the Department of
State Health Services ("Department"). Request Letter at 7-8. Under Strategy B.2.3., the Act
allocates $127,656,512 for fiscal year 2016 and $127,656,510 for fiscal year 2017, for community
mental health crisis services. Act, art. II-48 at 4499 (B.2.3). The Act subsequently provides that
"[o]ut of funds appropriated above in Strategy B.2.3 . . . , the Department . . . shall allocate
$1,743,000 in each fiscal year of the 2016-17 biennium in General Revenue to be used only for
the purpose of conducting a jail-based restoration of competency pilot program." Act, art. II-72 at
4523 (70.) (emphasis added). From this language, the Governor struck "in each fiscal year."
Proclamation at 5301.
Similar to the appropriation addressed by the Texas Supreme Court in Fulmore, the clear
intent of the Act is to set aside $1, 743, 000 for fiscal year 2016 and $1, 743, 000 for fiscal year 201 7
to be used solely for a jail-based restoration of competency pilot program. See Fulmore, 140 S.W.
at 407 (addressing an appropriations act stating "there is hereby appropriated the sum of eighty-
three thousand and one hundred and sixty ($83,160.00) dollars, to be expended during the two
fiscal years ending August 31st, 1912, and August 31st, 1913 "). The language of the Act therefore
sets aside two separate amounts of funds for a specific purpose, or establishes "two items of
appropriation." Id. at 410. The Governor vetoed one of those items, the effect of which is to
reduce the Department's appropriated funds by $1,743,000 for the biennium.
You ask from which fiscal year that amount should be eliminated. Request Letter at 8.
The Texas Supreme Court has explained that in determining the effect of a veto, we review the
Governor's veto message as a whole. Fulmore, 140 S.W. at 411. By striking the language "each
fiscal year" and explaining that he intended to veto "one year of this appropriation," it is clear that
the Governor intended to spread the $1,743,000 item of appropriation over the biennium.
Proclamation at 5301. Thus, the effect of the veto is to strike the appropriation for fiscal year
2017, while preserving the fiscal year 2016 appropriation. The Act authorizes any unexpended
balance remaining on August 31, 2016, to be "appropriated for the same purposes in fiscal year
2017." Act, art. II-65 at 4516 (39.). Because the Act explains that the funds allocated for this
program were included in Strategy B.2.3, a proper accounting would reduce Strategy B.2.3 by
The Honorable Glenn Hegar - Page 5 (KP-0048)
$1,743,000. Act, art. II-72 at 4523 (70.); Proclamation at 5301. If additional funds apart from the
$1,743,000 vetoed by the Governor are available, and if authority outside of the veto permits
expenditure of those funds for a jail-based restoration of competency pilot program, the
Department is likely authorized to spend its other funds accordingly. 4
III. Texas Education Agency
Your fourth set of questions asks about the Governor's veto of the following provision:
Out of funds appropriated above, the Texas Education Agency shall
allocate funds for the purpose of paying membership fees to the
Southern Regional Education Board, estimated to be $193,000 per
fiscal year.
Act, art. III-18 at 4609 (61.); Proclamation at 5302; Request Letter at 8. This provision sets aside
funds - an estimated $193,000 per fiscal year- for the purpose of paying membership fees to a
particular organization. The fact that the provision does not articulate a fixed sum does not
preclude this from being an item of appropriation. As an opinion from this office previously
concluded, a provision "may constitute a sufficient appropriation although it does not name a
certain sum or a maximum sum." Tex. Att'y Gen. Op. No. 0-3685 (1941) at 2 (opining that an
uncertain sum appropriated for salaries, travel and other necessary expenses was an item of
appropriation subject to the Governor's veto). Because the provision sets aside funds for a
particular purpose, it constitutes an item of appropriation, and the Governor's veto of this item has
the effect of reducing the agency's lump-sum appropriation by $193,000 each fiscal year.
The provision does not identify from which Strategy the appropriation is derived, so a
determination as to which Strategy should be reduced by this veto will need to be made by the
Comptroller in consultation with the Texas Education Agency and the Legislative Budget Board.
If additional funds apart from the $193,000 per fiscal year vetoed by the Governor are available,
and if authority outside of the veto permits expenditure of those funds for membership fees to the
Southern Regional Education Board, the Texas Education Agency is likely authorized to spend its
other funds accordingly.
IV. Texas Water Development Board
Your fifth set of questions concerns the Governor's striking of funds allocated to the Water
Development Board. Request Letter at 9. In particular, the Act provides for and the Governor
struck the following provision:
Included in amounts appropriated above in Strategy A.3.1 Water
Conservation and Assistance, is $1,000,000 in fiscal year 2016 from
General Revenue for the purpose of providing grants to water
4Unlike the Governor's veto of the Facilities Commission's capital budget items discussed above, the
Governor's veto of funds appropriated to the Department does not itself impact the use of any of the Department's
other available funds.
The Honorable Glenn Regar - Page 6 (KP-0048) ·
conservation education groups. The Water Development Board
shall award the grants through a competitive process, which may
require grant applicants to provide private matching funds. Any
unexpended balances as of August 31, 2016 in funds appropriated
for this purpose are appropriated for the same purpose in the fiscal
year beginning September 1, 2016.
Act, art. VI-59 at 5030 (20.) (emphasis added); Proclamation at 5303. The clear intent of this
provision is to set aside $1,000,000 for the purpose of providing grants to water conservation
education groups. It is therefore an item of appropriation subject to the Governor's veto. The
effect of the Governor's veto is to reduce by $1,000,000 the total sum appropriated to the Water
Development Board for fiscal year 2016. Because the Governor's veto nullifies the appropriation
for the 2016 fiscal year, no unexpended balance of the appropriation will occur during the
following year. The Act explains that the funds allocated for these grants were included in Strategy
A.3.1, and a proper accounting would thereby reduce Strategy A.3.1 by $1,000,000. Act, art. VI-
59 at 5030 (20.). If additional funds apart from the $1,000,000 vetoed by the Governor are
available, and if authority outside of the veto allows the Board to provide grants to water
conservation education groups, the Board is likely authorized to spend its other funds accordingly.
V. State Universities and Colleges
You next ask about the Governor's striking of funds for four state universities and one
community college. Request Letter at 9-14. In particular, the Act provides for and the Governor
struck the following allocations: (1) $2,500,000 for each fiscal year to the University of Texas at
Austin for identity theft and security; (2) $137,577 for each fiscal year to Texas A&M University
for an international law summer course; (3) $1,000,000 for each fiscal year to Tarleton State
University for the Center for Anti-Fraud, Waste, and Abuse; (4) $500,000 for each fiscal year to
Stephen F. Austin State University forthe Waters of East Texas Center; and (5) $100,000 for each
fiscal year to Del Mar College for a maritime museum. Act, art. III-66 at 4657 (C.2.8.); art. III-87
at 4678 (C.1.1); art. III-94 at 4685 (C.3.2); art. III-131at4722 (C.3.4); art. III-200 at 4791 (0.2.1.).
Regardless of whether the allocations are labeled as informational, Strategies, or riders, if
they set aside funds for a specific purpose, they are "items of appropriation." In each of these
allocations, the Legislature provides for an amount of money to be set aside for a specific purpose. 5
These five allocations are therefore items of appropriation. The Governor's vetoes are valid and
.reduce each institution's lump-sum appropriation by the corresponding amount struck for each
5
See Act, art. IIl-68 at 4659 (9.) ("Amounts appropriated above include $5,000,000 in General Revenue for
the 2016-17 biennium to provide research and education in the areas of identity management, protection, security, and
privacy, and to develop solutions to identity problems for businesses, adults, and children at The Center for Identity
at the University of Texas at Austin."); art. IIl-88 at 4679 (4.) (providing that the funds allocated to Texas A&M
University "will be used for the International Summer Course"); art. III-95 at 4686 (6.) (providing that the funds
allocated to Tartleton State University "will be used for the Center for Anti-Fraud, Waste, and Abuse"); art. III-132 at
4723 (4.) (providing thatthe funds allocated to Stephen F. Austin State University "will be used for the Waters of East
Texas Center"); art. III-207 at 4798 (26.) (providing that the funds allocated to Del Mar College "shall be used for a
maritime museum").
The Honorable Glenn Regar - Page 7 (KP-0048)
institution. If additional funds apart from those vetoed by the Governor are available, and if
authority outside of the veto allows the educational institutions to spend funds in the manner
provided, the institutions are likely authorized to spend their other funds accordingly.
VI. Texas State Securities Board
Your final set of questions concerns funds allocated to the Securities Board. Request Letter
at 15. The Act provides, and the Governor struck, the following language:
Amounts appropriated above include $557,352 in fiscal year 2016
and $636,688 in fiscal year 2017 in General Revenue for the purpose
of employee merit salary increases contingent upon House Bill
2493, cir similar legislation relating to· the classification of the
agency as a Self-Directed and Semi-Independent agency, not being
enacted.
Act, art. VIII-55 at 5148 (3.); Proclamation at 5304. This provision sets aside $557,352 for fiscal
year 2016 and $636,688 for fiscal year 2017 for the purpose of employee salary increases, and it
therefore constitutes two items of appropriation subject to the Governor's veto. The appropriations
were contingent upon House Bill 2493 or similar legislation not being enacted, which ended up
being the case. ·
The Governor's Proclamation ·message in conjunction with this veto states, "[t]his veto
deletes a contingent rider for a bill that did not pass." Proclamation at 5304. Briefing submitted
to this office on behalf of the Securities Board notes that the Governor vetoed a number of
appropriation riders that were contingent on the passage of other legislation that failed to pass. 6
With regard to these other vetoes, the Governor's Proclamation message included the same
explanatory statement provided for the veto of Securities Board funds. Each of the other vetoes,
however, had no meaningful effect on the agency or its appropriations, as the appropriations were
contingent on the passage of a bill that failed, so the appropriations would not have become
effective regardless of the Governor's veto. In this instance, on the other hand, the Securities
Board appropriations were contingent on a bill failing, which did occur, so the appropriations
would have been effective but for the Governor's veto. The briefing suggests that in every other
instance when the Governor intended to affirmatively veto appropriations, the Governor struck the
appropriations language and included an explanation as to why the veto occurred. Brief at 6-8.
While this may be the case, we cannot ignore the clearest intent of the Governor's veto, which is
his striking of the appropriation language and which results in the total sum appropriated to the
Securities Board being reduced by the amounts struck.
The vetoed provision does not state from which of the Securities Board Strategies the
appropriated funds derive. According to information provided by the Securities Board, however,
the Legislative Budget Board has explained how the vetoed funds were apportioned among the
Board's Strategies, and this could provide a method to account for the vetoed funds. See Securities
6See Letter from Beth Ann Blackwood, Chair, Tex. State Securities Bd., to Honorable Ken Paxton, Tex. Att'y
Gen. at 3 (Sept. 24, 2015) (on file with the Op. Comm.) (hereinafter "Securities Board Brief').
The Honorable Glenn Regar - Page 8 (KP-0048)
Board Brief at 9. Regardless of which Strategies the Legislature intended for the specific
appropriations at issue, however, the effect of the Governor's veto is to reduce by $557,352 in
fiscal year 2016 and $636,688 in fiscal year 2017 the funds appropriated to the Securities Board
by the Act. If additional funds apart from those vetoed by the Governor are available, and if
authority outside of the veto permits expenditure of those funds for employee merit salary
increases, the Board is likely authorized to spend its other funds accordingly.
The Honorable Glenn Hegar - Page 9 (KP-0048)
SUMMARY
Article 4, section 14 of the Texas Constitution authorizes the
Governor to veto "items of appropriation." The Texas Supreme
Court has explained that "where a certain provision designates a
specified purpose and the amount to be used therefor, it is an item
of appropriation even though it may be included in a larger, more
general item." The provisions vetoed by the Governor each
designate a specific purpose and the amount to be used therefor, and
they are items of appropriation subject to the Governor's yeto.
The Governor's authority to veto items of appropriation is
purely negative. An effective veto nullifies the setting aside of an
amount of funds for a specific purpose. If additional funds apart
from what was vetoed by the Governor are available, and if authority
outside of the vetoed language permits expenditure of those funds
for a given purpose, an entity is likely authorized to spend its other
funds accordingly.
Very truly yours,
o~
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128803/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January lo,2005
The Honorable Robert Duncan Opinion No. GA-0292
Chair, Committee on State Affairs
Texas State Senate Re: Whether section 1305.003(14) of the Texas
Post Office Box 12068 Occupations Code exempts from state licensing
Austin, Texas 7871 l-2068 requirements all persons performing electrical work
for a private industrial business, even if a person
is not an employee of the private industrial business
(RQ-0233-GA)
Dear Senator Duncan:
You ask whether section 1305.003(14) of the Texas Occupations Code exempts from state
licensing requirements all persons performing electrical work for a private industrial business, even
if a person is not an employee of the private industrial business.’
During its Seventy-eighth Regular Session, the Texas Legislature enacted House Bill 1487,
which put electrical work’ regulation under the control of the Texas Department of Licensing and
Regulation (the “TDLR”). See Act ofMay30,2003,7Sth Leg., R.S., ch. 1062,2003 Tex. Gen. Laws
3059,3059 (enacting chapter 1305 of the Texas Occupations Code, the Texas Electrical Safety and
Licensing Act) (the “Act”). Before passage of the Act, electrical work regulation in Texas was
relegated to the state’s political subdivisions, which resulted in varied electrical work rules
throughout the state, and no regulation in some political subdivisions. See SENATECOMM.ONSTATE
AFFAIRS, BILL ANALYSIS,Tex. Comm. Substitute H.B. 1487, 78th Leg., R.S. (2003) (Digest and
Purpose). The Act creates a state license for six classes ofelectricians and two classes of contractors
and adopts statewide standards for electrical workers in Texas. Id. As of September 1, 2004, a
person may not perform electrical work unless the person holds an appropriate license issued or
recognized under the Act. See TEX. Oct. CODEANN. 5 1305.151 (Vernon 2004).
‘Letterfrom HonorableRobert Duncan, Chair, Senate Committee on State Affairs, to HonorableGreg Abbott,
Texas Attorney General (June 17,2004) (on file with Opinion Committee,also availableafhttp://mvw.oag.state.tx.us)
[hereinafkr Request Letter].
2“Electricalwork”is defmed as “anylabor OImaterial used in installing,maintaining, OIextending an electrical
wiringsystemand the appurtenances,
apparatus,or equipmentused in connection with the use of electrical energy in,
on, outside, or attached to a building, residence, stmchme, property, 01premises. The term includes service entrance
conductors as defined by the National Electric Code.” TEX. OCC. CODEANN.5 1305.002(11)(Vernon 2004).
The Honorable Robert Duncan - Page 2 (GA-0292)
With respect to your question, the Act provides certain exemptions t?om the Act’s licensing
requirements for a person performing electrical work. See id. 5 1305.003. You ask about section
1305.003(14) of the Act (the “exemption”) which exempts from the Act’s licensing requirements
a person who is employed by and performs electrical work solely for
a private industrial business, including a business that operates a
chemical plant, petrochemical plant, refinery, natural gas plant,
natural gas treating plant, pipeline, or oil and gas exploration and
production operation.
Id. 9 1305.003(14) (emphasis added).
As background, a brief sent in response to your request informs us that industrial businesses
depend on contracted labor to control costs by procuring expert electrical work that is needed only
on a periodic basis or to fill quickly and safely vacancies created by employees who leave but whose
electrical expertise is indispensable to the daily function of the business.’ In addition, many
industrial businesses routinely use contract electrical workers and have done so for many years4
You inform us that, “increasingly, [industrial businesses] outsource electrical and other specialized
work.” Request Letter, suprn note 1, at 2. You refer to the individuals and companies who provide
this outsourced electrical work as “third-party contractors.” See id.
You ask this question about third-party contractors in relation to the exemption:
Does the exemption established in Texas Occupations Code
5 1305.003(14) include all persons performing electrical work for a
private industrial business, even if a person is not an employee of the
private industrial business?
Request Letter, suprn note 1, at 1.
Your question requires us to construe the exemption. In construing a statute we are charged
with determining and giving effect to the legislature’s intent. See City ofSan Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the “plain and
common meaning of the statute’s words.” Zd. Generally, if a statute’s meaning is unambiguous, we
interpret the statute according to its plain meaning. See id. However, we determine legislative intent
from the entire act and not just isolated portions. See id. ; see also TEX. Gov’T CODEANN. 5 3 11.023
(Vernon 1998) (regardless ofwhether a statute is considered ambiguous, a court may consider, inter
ah, the circumstances under which the statute was enacted and the legislative history).
‘See Brief from Jerry D. Davis, Plant Manager, El Dorado Nitrogen, L.P., to Honorable Greg Abbott, Texas
Attorney General at 1 (July 12,2004) (on file with Opinion Committee).
‘See,e.g., Brief from Ron Dipprey,President, Texas Chemical Council, to Honorable Greg Abbott, Texas
Attorney General at 1-2 (on tile with Opinion Committee) (stating that the council has wed some contract workers for
as long as 15 years).
The Honorable Robert Duncan - Page 3 (GA-0292)
Returning to the exemption with these principles, we observe that reduced to its constituent
parts the exemption applies to “a person employed by . a private industrial business.” See
TEX.Oct. CODE ANN. 5 1305.003(14) (Vernon 2004). Although these terms, “person,““employed
by” and, “private industrial business” are the exemption’s essential elements, they are not defined
in the Act. See id. $5 1305.001-,303. To answer your question, then, we begin by analyzing
individually each of these terms according to the guiding principles previously articulated in order
to determine the terms’ meanings and, consequently, the exemption’s meaning.
In settling on a definition of “person” for the purposes of the exemption, we find two
competing concepts - the concept of “person” as an individual and the concept of “person” as any
legal entity. See BLACK’S LAW DICTIONARY1028 (5th ed. 1979). The Occupations Code employs
both concepts in defining “person.” See, e.g., TEX.Oct. CODEANN. $ 15 1.002( 11) (Vernon 2004)
(regulating physicians and defining “person” as an individual), id. 5 1302.002(14) (regulating air
conditioning and refrigeration contractors and defining “person” as an individual), id. 5 35 1.002(5)
(regulating optometrists and therapeutic optometrists and defining “person” as, among other things,
a partnership, corporation, or an “association of individuals”), and id. 5 1901.002(12) (regulating
water well drillers and defining “person” as any “private legal entity’).
As noted, the industry regulated by the Act relies heavily on outsourcing jobs to companies
that supply contract labor to perform electrical work. Given this common practice to use these third-
party contractors, and because the Occupations Code employs both concepts of the term “person,”
we conclude that “person” as used in the exemption is ambiguous. Moreover, because there is an
absence of consideration for this industry practice in the Act’s express purpose,’ or in its legislative
history: we cannot resolve this ambiguity with any degree of confidence by referring to such
documents.
II. “Emoloved By”
The term “employed by,” however, is not ambiguous. In the context of the exemption, the
term refers to employees of a private industrial business. See TEX. Oct. CODE ANN. 4 1305.003(14)
(Vernon 2004) (“a person who is employed by and performs electrical work solely for a private
industrial business’? (emphasis added). By definition, an independent contractor is not an employee.
See Limestone Prods. Dijtrib., Inc. Y.McNamara, 71 S.W.3d 308,312 (Tex. 2002) (distinguishing
by common-law test an employee from an independent contractor). However, the mere use of titles
such as “employee” and “contractor” do not determine a person’s status; rather in the employee-
independent contractor dichotomy the common-law test articulated in Limestone controls.
‘See SENATE
COMM.ONSTATEAFFAIRS,
BILLANALYSIS,
Tex. Comm. Substitute H.B. 1487,78th Leg., R.S.
(2003).
‘See HOUSECOMM.ONLICENSING & ADMIN.PROC.,HOUSEFCESEARCH
ORG.,BILLANALYSIS,
Tex. Comm.
Substitute H.B. 1487,78th Leg., R.S. (2003).
The Honorable Robert Duncan - Page 4 (GA-0292)
The test to determine whether a person is an employee rather than an independent contractor
is whether the employer has a right to control the progress, details, and methods of operations
of the work. See id. (citations omitted). An employer controls not merely the end sought to be
accomplished, but also the means and details ofits accomplishment. See id. (citations omitted). The
right to control is measured by considering: “(1) the independent nature of the worker’s business;
(2) the worker’s obligation to furnish the necessary tools, supplies, and materials to perform the job;
(3) the worker’s right to control the progress ofthe work except about final results; (4) the time for
which the worker is employed; and (5) the method of payment, whether by unit of time or by the
job.” Id. (citation’s omitted).
The employee-independent contractor test is resolved by referring to facts. Accordingly,
whether a person comes within the definition of “employed by” is a question of fact. Resolving
questions of fact is not appropriate to the opinion process. See Tex. Att’y Gen. Op. No. GA-0156
(2004) at 10.
III. “Private Industrial Business”
The exemption provides limited guidance for this term’s definition by listing entities that
qualify as private industrial businesses. See Tax. OCC.CODEANN. 6 1305.003(14) (Vernon 2004).
The Act exempts a person employed by “a private industrial business, including a business that
operates a chemical plant, petrochemical plant, refinery, natural gas plant, natural gas treating plant,
pipeline, or oil and gas exploration and production operation.” Id. (emphasis added). However, the
term “include” in a statute is a “term[] of enlargement and not a term of limitation or exclusive
enumeration, and use of the term[] does not create a presumption that components not expressed
are excluded.” TEX. GOV’TCODEANN. § 311.005(13) (Vernon 1998). As such, the definition of
“private industrial business” hinges on our ability to ferret out the common bond that holds the
listed entities together. See Peerless Carbon Black Co. v. Sheppard, 113 S.W.2d 996,997 (Tex. Civ.
App.-Austin 1938, writ ref d) (stating that while “include” is a word of enlargement, the items
expressly enumerated are illustrative of the additional items that may be included). Given the dearth
of information in the Act’s legislative history, we cannot determine with confidence the common
bond shared by the illustrative items that define “private industrial business,” and thus we conclude
that the term is vague.
In sum, it is conceivable that a third-party contractor, whether an individual or any other legal
entity, could be a “person.” Equally conceivable, a third-party contracting company that provides
electrical workers ,.to an industrial business could itself be a “private industrial business.”
Nevertheless, given that the Act does not acknowledge ubiquitous industry practices, which renders
the terms “person” and “private industrial business” ambiguous and vague, and because the
determination of whether a person is an employee or an independent contractor is a fact question,
we cannot answer your question as a matter of law.
TheHonorableRobert Duncan - Page 5 (GA-0292)
SUMMARY
Occupations Code chapter 1305, the Texas Electrical Safety
and Licensing Act, regulates electrical work in Texas. Section
1305.003(14) of the Occupations Code exempts from the Act’s
licensing requirements “a person” who is “employed by” a “private
industrial business.” The terms “person” and “private industrial
business” are ambiguous and vague. The term “employed by” refers
to a person who is an employee, but whether a person is an employee
is a fact question that cannot be answered in the opinion process.
Consequently, section 1305.003( 14)‘s terms do not provide sufftcient
clarity to answer as a matter of law the question of whether a person
performing electrical work for a private industrial business, even if a
personisnot anemployeeoftheprivateindusttial business, is exempt
from the Act’s licensing requirements.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126632/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Drew J. Bauer, individually and :
d/b/a AmbroseBauer Trains (LLC), :
:
Petitioner :
:
v. : No. 501 M.D. 2015
: Submitted: June 10, 2016
Pennsylvania State Board of :
Auctioneer Examiners, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: February 16, 2017
Drew J. Bauer (Bauer), individually and doing business as
“AmbroseBauer Trains (LLC),” petitions for review of an order of the State Board
of Auctioneer Examiners (Board) upholding citations issued against him and
AmbroseBauer Trains, LLC (ABT) for violations of the Auctioneer Licensing and
Trading Assistant Registration Act (the Act).1 We affirm.
In 2009 and 2010, Bauer auctioned toy trains using AuctionsByTM, a
computer auction program that he owned. (Certified Record (C.R.) Item 34, Exs.
C-5, C-6, C-7 & D-1 ¶¶4-6, Reproduced Record (R.R.) at 212-246, 248.) Bauer
conducted these auctions through his company, ABT. (Id., Exs. C-5, C-6, C-7 &
1
Act of December 22, 1983, P.L. 327, as amended, 63 P.S. §§ 734.1–734.34.
D-1 ¶5, R.R. at 212-246, 248.) Section 3(a) of the Act provides that it is unlawful
for any person to engage in the profession of auctioneer, hold himself out as an
auctioneer, conduct an auction, or offer to conduct auctions in this Commonwealth
without a license. 63 P.S. § 734.3.2 In addition, the Act requires a license for
operation of an auction company. Former 63 P.S. § 734.10(a); see also 63 P.S. §
734.3(a)(1), (e.1)(1).3 Bauer is an attorney licensed to practice law in
Pennsylvania. (C.R. Item 34, Hearing Transcript (H.T.) at 52 & Ex. D-1 ¶1 & D-5,
R.R. at 186, 247, 426.) Bauer, however, held no license to practice auctioneering
and ABT held no license to operate as an auction company. (Id., H.T. at 26 & Ex.
C-1, R.R. at 160, 193-94.)
On May 20, 2010, the Commonwealth filed citations against Bauer
and ABT charging that Bauer had conducted auctions without a license, charging
that ABT had operated as an unlicensed auction company, and imposing a $1,000
fine on Bauer and a $500 fine on ABT. (C.R. Items 2 & 3, Citations, R.R. at 5-6.)4
2
At the time of the events at issue here, Section 3(a) of the Act provided that “it is unlawful for
any person to engage in or carry on the profession of auctioneer, to conduct a sale at auction, to
hold himself out as an auctioneer or as an apprentice auctioneer or to offer to conduct sales at
auction in this Commonwealth without first obtaining a license from the board as an auctioneer
or apprentice auctioneer.” In 2016, subsequent to both the events at issue here and the Board’s
order, the Act was substantially amended. See Act of July 20, 2016, P.L. 789 (2016 Legislation).
The 2016 Legislation expanded the definition of “auction” with respect to online auctions,
changed the numbering of certain sections of the Act, and made changes to numerous sections of
the Act. The 2016 Legislation did not change the requirement of Section 3(a) of the Act that it is
unlawful to engage in auctioneering, hold oneself out as an auctioneer, or conduct or offer to
conduct auctions without a license.
3
At the time of the events at issue here, this requirement was set forth in Section 10(a) of the
Act. Although Section 10 of the Act was repealed by the 2016 Legislation, the 2016 Legislation
did not eliminate the requirement that auction companies be licensed and moved the licensure of
auction companies to Section 3 of the Act. See 63 P.S. § 734.3(a)(1), (e.1).
4
Although the citation against ABT referenced Section 9(a) of the Act, which did not govern
auction companies, it stated that the charge against ABT was that it was not “licensed as an
(Footnote continued on next page…)
2
Bauer and ABT denied the violations but did not appear at an August 2010 hearing
on the citations and the hearing examiner issued orders sustaining the citations.
Bauer and ABT appealed these orders to the Board, asserting, inter alia, that they
had reason to believe that the hearing would not be held on that date, and the
Board, on November 15, 2013, vacated the orders and remanded the matter to the
hearing officer for a new hearing.
Before the new hearing was scheduled, Bauer and ABT filed
preliminary objections seeking dismissal of the citations on the ground that Bauer
was an attorney, which the Board overruled on March 13, 2014. Bauer also filed a
petition for review in this Court’s original jurisdiction against the Commonwealth,
the Board and other Commonwealth parties docketed at No. 287 M.D. 2014
(Commonwealth Court action), and sought a preliminary injunction to enjoin the
hearing on the citations, which was scheduled for August 11, 2014. On August 7,
2014, following a hearing at which the parties presented a stipulation of facts and
argument, this Court denied Bauer’s motion for preliminary injunction for failure
to exhaust administrative remedies and on the ground that the petition for review
“is not likely to succeed on the merits in that Petitioners have failed to state that
conducting auctions is comparable to the practice of law.” (8/7/14 Order in 287
M.D. 2014, R.R. at 770-771.)5
(continued…)
auction company.” (C.R. Item 2, Citation, R.R. at 6.) Bauer and ABT had ample notice that the
citation charged a violation of Section 10(a) of the Act, requiring licensure of auction companies,
as the hearing examiner ruled that the reference to Section 9(a) was a typographical error and
that the citation against ABT charged a violation of Section 10(a) almost four years before the
evidentiary hearing at which Bauer and ABT contested the citations. (C.R. Item 8, August 2010
Hearing Examiner Order at 1 n.1, R.R. at 12.)
5
The Commonwealth Court action was subsequently dismissed without prejudice at Bauer’s
request in September 2014.
3
On August 11, 2014, the hearing examiner held a hearing on the
citations at which Bauer appeared on his own behalf and as attorney for ABT. At
this hearing, Bauer and a Department of State professional conduct investigator
testified. The parties also introduced documentary evidence, including a 2009
client agreement hiring Bauer to sell a consignment of toy trains by auction, April
2010 and May 2010 printouts from ABT’s website, www.ambrosebauer.com, and
the stipulation of facts entered into by Bauer and the respondents in the
Commonwealth Court action. The parties were given the opportunity to file post-
hearing briefs and filed such briefs after the hearing. On December 18, 2014, the
hearing examiner issued a 61-page proposed adjudication and order concluding
that Bauer had engaged in the practice of auctioneering without a license in
violation of Section 3(a) of the Act, concluding that ABT had operated as an
auction company without a license in violation of Section 10(a) of the Act, and
upholding both citations. Bauer and ABT filed exceptions to the hearing
examiner’s proposed adjudication and order. On September 15, 2015, the Board
issued an order adopting the hearing examiner’s proposed adjudication and
upholding the citations. This appeal followed.6
Bauer argues that the Act’s license requirements cannot apply to him
because he is an attorney, contending that the Act cannot constitutionally apply to
6
Bauer filed this petition for review in both this Court’s original jurisdiction and its appellate
jurisdiction. By Order entered February 3, 2016, this Court sustained the Board’s preliminary
objections to the portion of the petition for review addressed to the Court’s original jurisdiction,
which had sought a declaratory judgment and injunctive relief. This matter is therefore before us
solely in our appellate jurisdiction as an appeal from the Board’s order. Our review is limited to
determining whether constitutional rights were violated, whether an error of law was committed,
or whether necessary findings of fact are supported by substantial evidence. Stiles v. Auctioneers
Examiners Board, 816 A.2d 1254, 1255 n.1 (Pa. Cmwlth. 2003).
4
attorneys and that auctions by attorneys fall within the Act’s exemptions from
license requirements.7 We do not agree.
The Pennsylvania Supreme Court has exclusive jurisdiction to
regulate the conduct of attorneys in the practice of law in this Commonwealth. Pa.
Const., art. V, § 10(c) (“The Supreme Court shall have the power to prescribe
general rules . . . for admission to the bar and to practice law, and the
administration of all courts and supervision of all officers of the Judicial Branch”);
Commonwealth v. Stern, 701 A.2d 568, 570, 572-73 (Pa. 1997); Maunus v. State
Ethics Commission, 544 A.2d 1324, 1325-26 (Pa. 1988). The fact that a statute
regulates both lawyers and non-lawyers does not automatically make its
application to lawyers constitutional. Shaulis v. Pennsylvania State Ethics
Commission, 833 A.2d 123, 132-33 (Pa. 2003); Gmerek v. State Ethics
Commission, 751 A.2d 1241, 1254 (Pa. Cmwlth. 2000) (en banc), aff’d by an
equally divided court, 807 A.2d 812 (Pa. 2002). The application to attorneys of
7
This Court notes that Bauer’s brief is in violation of Pa. R.A.P. 2135(a), which provides, with
exceptions not relevant here, that “[u]nless otherwise ordered by an appellate court: (1) [a]
principal brief shall not exceed 14,000 words.” The only portions of a brief that may be
excluded from this word count limitation are “[s]upplementary matters, such as, the cover of the
brief and pages containing the table of contents, tables of citations, proof of service and any
addendum containing opinions, signature blocks or any other similar supplementary matter
provided for by these rules.” Pa. R.A.P. 2135(b). Nothing in Rule 2135 permits exclusion of
footnotes from the 14,000 word limit. Bauer’s brief is 74 pages in length and contains 109
footnotes, many of which are lengthy. Bauer represented to this Court that his brief complied
with Rule 2135 by excluding footnotes from the word count that he ran on the brief.
(Petitioner’s Br. at 75 (stating that the supplementary matter excluded from the word count
consists of “the cover of the brief, pages containing the table of contents, tables of citations,
proof of service, this Certificate of Compliance, footnotes, and any addendum containing
opinions, signature block or any other similar supplementary matter provided for the rules”)
(emphasis added).) This attempt to evade the limitations on the length of briefs is disingenuous
and unprofessional. When the word count is properly calculated and the 109 footnotes are
included, Bauer’s brief contains 22,246 words. Rather than strike the brief, the Court has chosen
to issue a reasoned opinion dealing with the issues presented. Counsel is admonished that
similar conduct in the future will result in the brief being stricken, as well as sanctions.
5
statutes governing conduct unrelated to the legal profession, however, does not
constitute regulation of the practice of law and is not barred by the Supreme
Court’s exclusive jurisdiction over the practice of law. P.J.S. v. Pennsylvania State
Ethics Commission, 723 A.2d 174, 178 (Pa. 1999); Gmerek, 751 A.2d at 1252-54.
As the Supreme Court has made clear,
the jurisdiction of this court is not infringed when a regulation
aimed at conduct is applied to all persons, and some of those
persons happen to be attorneys.
* * *
To hold … that the mere status of “attorney” exempts one
from meeting the necessary professional regulations which
flow from whatever position one holds in addition to that of
“attorney” is absurd.
P.J.S., 723 A.2d at 178.
Whether a statute governing the actions of both lawyers and non-
lawyers constitutes an unconstitutional regulation of the practice of law depends on
whether it attempts to control the conduct of lawyers in rendering professional
legal services to their clients. Gmerek, 751 A.2d at 1254. The types of services
that have been held to constitute professional legal services are generally those
involving legal advice to clients, preparation of documents for clients involving
legal principles beyond the knowledge of ordinary laypersons, and the appearance
on behalf of clients before tribunals whose actions could affect the clients’ rights.
Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 660 (Pa. 2004); Gmerek,
751 A.2d at 1255.
Bauer’s conduct here does not constitute the rendering of professional
legal services. Bauer’s services in conducting auctions consisted of selling toy
trains at auction, not providing legal advice to his clients, preparing documents for
his clients that required legal training, or appearing before any tribunal. Bauer’s
6
client contracts provided that the client hires Bauer “for the limited purpose of
selling the Consignment,” which it defined as “certain toy train(s) and/or related
item(s)” owned by the client, and provided that the “relationship arising from this
Agreement is limited solely to the offer, sale and transfer of the Consignment and
that the Attorney [Bauer] does not represent the Client, or provide the Client legal
advise [sic], or legal service, in or on any other matter.” (C.R. Item 34, Ex. C-7
¶¶2, 4, 5 & D-3 ¶¶2, 4, 5, R.R. at 236, 255.) The auctioning of toy trains or other
merchandise does not constitute the practice of law. While Bauer’s auctions may
involve specialized knowledge or skill concerning how to run an auction so as to
obtain the highest or most favorable offer or concerning the valuation of the items
being sold, that knowledge and skill is unrelated to legal training and competence
in the practice of law. Requiring Bauer to obtain an auctioneering license therefore
does not violate the Supreme Court’s exclusive jurisdiction over the practice of
law.
Bauer argues that even if his auctions do not constitute legal services,
the Rules of Professional Conduct adopted by the Supreme Court regulate the
providing by lawyers of nonlegal services and that the Act conflicts with the
confidentiality requirements of Rule 1.6 of the Rules of Professional Conduct and
with other Rules of Professional Conduct. The flaw in these arguments is that the
Rules of Professional Conduct apply to nonlegal services only where the attorney
is also providing legal services to the client or the nonlegal services could
reasonably be understood by the client to be legal services. Rule 5.7 provides that
the Rules of Professional Conduct apply to nonlegal services “that might
reasonably be performed in conjunction with and in substance are related to the
provision of legal services” where there is potential for confusion because the
7
nonlegal services “are not distinct from legal services provided to that recipient” or
because the recipient could reasonably believe that he is receiving legal services.
Pa. R.P.C. 5.7(a)-(c), (e). Here, Bauer’s contracts demonstrate that he was
conducting auctions for clients for whom he was providing no other services and
the auctioning of toy trains is not an activity that would reasonably be understood
as involving legal services unless it was provided in conjunction with other
services that involved legal advice or the exercise of legal training.
Bauer’s claim that the Act by its terms does not apply to attorneys
likewise fails. At the time of the events at issue here, Section 3(h)(3) of the Act
provided that “[t]he requirement to obtain a license under this act does not apply to
sales at auction in the following circumstances: … (3) To a sale conducted by or on
behalf of a person appointed by judicial order or decree.” Former 63 P.S. §
734.3(h)(3).8 Contrary to Bauer’s assertions, this does not exempt attorneys from
the requirement of an auctioneering license. Rather, the clear intent of this
exemption is to permit auctions by persons appointed by a court to conduct an
auction or to sell the property being auctioned, not to authorize individuals to
auction property without a license simply because they have been appointed by a
court to some position or responsibility completely unconnected to any auction of
any property. The fact that Bauer has been admitted by the Pennsylvania Supreme
Court to practice law in Pennsylvania is not an appointment to sell or auction
property; it is a determination by the Supreme Court that he may practice law. As
explained above, auctioning toy trains is not the practice of law. Because Bauer
8
The 2016 Legislation moved the exemptions that had been in Section 3(h) of the Act to a new
Section 3.1, but made no change in the language of the exemption that had been set forth in
Section 3(h)(3). See 63 P.S. § 734.3.1(3).
8
did not show that he was appointed by a court to auction property or that he was
appointed by a court to sell the toy trains that he auctioned in 2009 and 2010, the
exemption for persons appointed by judicial order or decree does not apply here
and cannot provide a defense to the citations.9
Nor does the exemption in the Act for sales from a decedent’s estate
bar the citations against Bauer and ABT. At the time of the events at issue here,
Section 3(h)(4) of the Act provided an exemption from licensure for “a sale
conducted in the settlement of any decedent’s estate.” Former 63 P.S. §
734.3(h)(4).10 While Bauer has represented decedents’ estates and has sold toy
trains for decedents’ estates, he testified that estates constituted only approximately
one-third of the clients for whom he has auctioned toy trains. (C.R. Item 34, H.T.
at 46 & Ex. D-1 ¶2, R.R. at 180, 247.) Indeed, nothing in the 2009 client
agreement indicated that a decedent’s estate was involved or that the toy trains to
be auctioned under that agreement were owned by an estate. (Id., Ex. C-7, R.R. at
236-246.) Because Bauer’s testimony established that most of his sales did not fall
within the exemption for estate sales, the hearing examiner and the Board
reasonably concluded that this exemption did not provide a defense to the charge
9
Bauer argues that applying the requirement of an auctioneering license to attorneys serves no
purpose because attorneys have sufficient education and training and because they are subject to
regulation in their practice of law. This is a challenge to the wisdom of the Act, an issue that can
be determined only by the legislature, not by this Court. Khan v. State Board of Auctioneer
Examiners, 842 A.2d 936, 947 (Pa. 2004). Moreover, the education requirements for an
auctioneering license consist of subjects that attorneys would not necessarily have studied in law
school. See 49 Pa. Code § 1.11(c) (providing that the areas of study for an auctioneering license
are “[a]udience communications,” “[p]rocurement of merchandise for auction,” “[a]ppraisal,”
“[a]uction law,” “[p]reparation for auction,” and “[c]onducting an auction”).
10
The 2016 Legislation amended the language of this exemption and it now exempts sales
“conducted in the settlement of any decedent’s estate conducted by the executor or administrator
of the estate.” 63 P.S. § 734.3.1(4).
9
that Bauer had conducted auctions for which the Act required an auctioneering
license.
Bauer also contends that the Commonwealth did not prove that he
violated the licensure requirement because his auctions were online auctions and
that the Commonwealth did not prove that ABT was required to obtain an auction
company license. In this administrative proceeding, the burden was on the
Commonwealth to prove by a preponderance of the evidence that Bauer and ABT
committed the violations of the Act with which they were charged. Agostino v.
Township of Collier, 968 A.2d 258, 269-70 (Pa. Cmwlth. 2009); Boguslawski v.
Department of Education, 837 A.2d 614, 617 n.3 (Pa. Cmwlth. 2003); Samuel J.
Lansberry, Inc. v. Pennsylvania Public Utility Commission, 578 A.2d 600, 602 (Pa.
Cmwlth. 1990). The Commonwealth satisfied its burden of proof on both of these
issues.
At the time of the events in question, the Act defined “auction” and
“sale at auction” as
[t]he offer to sell property by an auctioneer or apprentice
auctioneer to the members of an audience congregated for the
purpose of making bids for the purchase of the property in an
effort by the auctioneer or apprentice auctioneer to advance
the amount of the bids to obtain the highest or most favorable
offer. The term “auction” or “sale at auction” excludes any
sale conducted through an online Internet bidding platform.
Former 63 P.S. § 734.2 (emphasis added).11 Bauer’s claim that all of his auctions
were “conducted through an online Internet bidding platform” and that his actions
therefore did not violate the Act fails for three reasons.
11
The 2016 Legislation removed the exclusion of sales conducted through an “online Internet
bidding platform.” The Act now defines “auction” and “sale at auction” as follows:
(Footnote continued on next page…)
10
First, the Commonwealth introduced evidence that Bauer conducted
in-person auctions in addition to online auctions. The printouts from ABT’s
website show that Bauer represented in 2010 that he conducted private auctions
that some bidders attended in person. Bauer testified that he owns the ABT
website, that ABT’s actions are his actions, and that information in the website
printouts was authored by him. (C.R. Item 34, H.T. at 42-43, 54, R.R. at 176-177,
188.) The ABT website stated that Bauer conducted private auctions, repeatedly
referred to bidders that “attend” his private auctions, distinguished bidders who
(continued…)
(1) A method for the sale or lease of property, or any interest in property, by
means of a verbal exchange, regular mail, telecommunications, the Internet, an
electronic transmission or a physical gesture between an auctioneer, apprentice
auctioneer or auction company and one or more potential purchasers or lessees
through the solicitation of offers, in the form of bids, in an effort to advance the
amount of the bids to obtain the highest or most favorable offer.
(2) The term “auction” or “sale at auction” includes:
(i) live auctions;
(ii) online auctions;
(iii) real-time auctions;
(iv) extended auctions;
(v) any similar such events as may be devised with the development of
technology; and
(vi) any combination of the foregoing.
(3) The term “auction” or “sale at auction” does not include a negotiated
transaction. Nothing in this act is intended to deny an auctioneer, apprentice
auctioneer or auction company a commission or other compensation earned for
auction-related activities that result in or facilitate a negotiated transaction by
the seller, or other agent of the seller, and a buyer.
63 P.S. § 734.2 (emphasis added).
11
“attend” such auctions from those who bid online, and stated that payment by high
bidders at private auctions was required “before they leave the premises on the day
of the Auction.” (Id., Exs. C-5, C-6, R.R. at 212, 214, 232-235; see also Hearing
Examiner’s Proposed Adjudication and Order Findings of Fact (Hearing Examiner
F.F.) ¶¶14-16, R.R. at 483-485.) These admissions by Bauer are sufficient to
support the conclusion that Bauer had in fact conducted non-online auctions
without a license.
Contrary to Bauer’s assertions, the stipulation of facts in the
Commonwealth Court action did not bar the Commonwealth from proving that
Bauer conducted in-person auctions. Although the Commonwealth and Bauer
stipulated in that document that “Bauer uses AuctionsByTM to auction the
aforementioned toy trains through his company’s, AmbroseBauer Trains, LLC,
website” and that “Bauer admits that he has conducted approximately 210 internet
auctions” (C.R. Item 34, Ex. D-1 ¶¶5-6, R.R. at 248), nothing in the stipulation
states that online and internet auctions were the only auctions that Bauer conducted
or that Bauer did not conduct in-person private auctions. To the contrary, with
respect to private auctions, the stipulation of facts states only that “Bauer’s
company website states that he is conducting private auctions.” (Id., Ex. D-1 ¶7,
R.R. at 248.)
Second, even if all of Bauer’s auctions were conducted on the
internet, the hearing officer and Board correctly concluded that the auctions
conducted by him using his AuctionsByTM program did not qualify as sales through
an “online Internet bidding platform.” The Act defined “online Internet bidding
platform” as
[h]ardware or software architecture that provides or enables
computer access by multiple users to an interactive computer
12
server for the purpose of allowing users to offer property for
sale and that does not examine, set the price or prepare the
description of the property to be offered.
Former 63 P.S. § 734.2. This definition does not encompass all online auctions.
Rather, it excludes from the definition of “auction” and “sale at auction” only sales
through internet sites on which multiple users can independently sell property.
AuctionsByTM was not an internet site that multiple users independently access to
sell property; it was a computer program owned by Bauer that was run by him and
by auction houses to which he sold the program. (C.R. Item 34, Ex. D-1 ¶4, R.R.
at 248.) In his AuctionsByTM auctions, the internet site that Bauer used to sell toy
trains was the website of his company, ABT, not a website where the general
public could auction property without Bauer’s participation and involvement. (Id.,
Ex. D-1 ¶5, R.R. at 248; see also id., Ex. C-5, R.R. at 212.) The evidence also
showed that Bauer examined, set the price, and prepared descriptions of the toy
trains being auctioned, placed these descriptions and prices on the ABT website,
and did not merely offer a website through which others could auction toy trains
under their own descriptions and pricing. (Id., Exs. C-5, C-6, R.R. at 212-213,
215-222, 234-235; see also Hearing Examiner F.F. ¶¶18, 21, R.R. at 485-487;
Board Final Memorandum Order at 4-5.) Because Bauer’s AuctionsByTM auctions
were not conducted through an internet site that permitted multiple users to sell
property and that did not examine, set the price, or prepare descriptions of the
property being sold, they were not sales “conducted through an online Internet
bidding platform” and were auctions for which the Act requires an auctioneering
license.12
12
Contrary to Bauer’s assertions, nothing in the testimony of the Department of State
professional conduct investigator shows that Bauer’s auctions were conducted through an
“online Internet bidding platform.” What constitutes an “online Internet bidding platform” is a
(Footnote continued on next page…)
13
Third, the Commonwealth was not required to prove that Bauer
actually conducted auctions that required a license. The citation against Bauer
charged that he violated Section 3(a) of the Act. Section 3(a) not only prohibits the
conducting of auctions without a license, but also provides that it is unlawful for a
person to “hold himself out as an auctioneer” or offer to conduct auctions without
obtaining a license from the Board. Former 63 P.S. § 734.3(a); see also 63 P.S. §
734.3(a)(1). Under the Act, any individual “who sells or offers or attempts to sell
property at auction” is an “auctioneer.” Former 63 P.S. § 734.2; see also 63 P.S. §
734.2. Although the citation also stated that Bauer “conducts auctions in this
Commonwealth without being licensed to do so by the Board” (C.R. Item 3,
Citation, R.R. at 5), Bauer admitted that he “understands that the act of merely
advertising ‘auctions’ would fall within the coverage of the May 20, 2010 Citation
as to him.” (Respondents’ Exceptions to the Proposed Order of the Hearing
Officer at 14 n.41, R.R. at 551.) Because Bauer’s representations on the ABT
website show that he held himself out as conducting in-person private auctions, the
evidence before the hearing officer and Board was sufficient to uphold the citation
against him even if all auctions that Bauer actually conducted had been conducted
through an “online Internet bidding platform.”
The Commonwealth likewise satisfied its burden of proving that ABT
was required to obtain an auction company license. At the time of the events at
issue here, the Act defined “auction company” as “[a] company which, as part of
(continued…)
question of law. It is the facts concerning the website through which auctions are conducted, not
the labels or nomenclature used by a witness, that determine whether an auction was conducted
through an “online Internet bidding platform.” Neither the investigator nor Bauer testified that
the ABT website was open to users to conduct auctions not run by Bauer.
14
its business, arranges, manages, sponsors, advertises or carries out auctions,”
former 63 P.S. § 734.2, and Section 10(a) of the Act provided:
Requirement for license. -- Every person, except an individual
who is licensed as an auctioneer or an individual who is
licensed to operate an auction house, shall, before operating
an auction company, obtain a license from the board to
operate the auction company. Every partnership, association
or corporation must obtain a license even though a member or
officer is licensed as an auctioneer.
Former 63 P.S. § 734.10(a).13 Bauer contends that ABT was a sole proprietorship
and was not required to obtain a license because it was not a partnership,
association, or corporation. This argument fails for two reasons.
First, evidence was introduced that ABT operated as a partnership
when it advertised and carried out auctions in 2009. The 2009 client contract
stated that “AmbroseBauer Trains (hereinafter “AmbroseBauer”) is a Pennsylvania
General Partnership comprised of Paul V. Ambrose and Drew J. Bauer” and was
signed by Bauer and Mr. Ambrose as partners. (C.R. Item 34, Ex. C-7 at 1 ¶3 & at
11, R.R. at 236, 246.)
Second, Section 10(a) was not limited to partnerships, associations
and corporations, and required that “[e]very person … shall, before operating an
auction company, obtain a license from the board to operate the auction company.”
13
The 2016 Legislation redefined “auction company,” and it is now defined as “[a] legally
recognized entity that sells or attempts to sell property at auction or performs, or offers to
perform, any of the functions or activities requiring licensure as an auction company under
section 3(a)(1)[,] … includ[ing] any legally recognized entity that holds itself out as engaged in
the business of selling property at auction”. 63 P.S. § 734.2. The 2016 Legislation moved the
licensure of auction companies to Section 3 of the Act, as was noted above, and also modified
the language of former Section 10(a). See 63 P.S. § 734.3(e.1)(1) (providing that “[e]very
legally recognized entity shall, before operating as an auction company, obtain an auction
company license issued by the board”).
15
Former 63 P.S. § 734.10(a) (emphasis added). The Act, at the time at issue here,
defined “person” as including any “individual, partnership, association,
corporation, limited liability company or other entity.” Former 63 P.S. § 734.2.
When ABT advertised and carried out auctions in 2010, its name, AmbroseBauer
Trains, LLC, identified it as a limited liability company. See 15 Pa. C.S. §
8904(a)(3) (requiring that the name of a limited liability company include “the
term ‘company,’ ‘limited’ or ‘limited liability company’ or an abbreviation of one
of those terms”), repealed by the Act of October 22, 2014, P.L. 2640.14 While
Bauer claims that ABT was a sole proprietorship owned by him in 2010, that
contention is contradicted by the fact that ABT’s name, with its LLC abbreviation,
would not have constituted a valid fictitious name for a sole proprietorship owned
by an individual. See 54 Pa. C.S. § 311(b)(1) (prohibiting registration of fictitious
names that “contain a corporate designator such as ‘corporation,’ ‘incorporated’ or
‘limited’ or any derivation or abbreviation thereof unless the entity or at least one
entity named in the application for registration of fictitious name is a corporation”).
The document that Bauer introduced in evidence to support his claim that ABT
was a sole proprietorship was not inconsistent with ABT’s status as a limited
liability company in 2010, as it was a 2014 fictitious name filing and was for the
name “AmbroseBauer Trains,” not “AmbroseBauer Trains, LLC.” (C.R. Item 34,
Ex. D-2, R.R. at 251-253.) Moreover, this filing identified “AmbroseBauer Trains,
LLC” as an “[e]ntity” that had “withdrawn from the business” and identified Bauer
as the “[i]ncorporator” of ABT. (Id.)
Bauer also argues that ABT did not arrange, manage, sponsor,
advertise or carry out auctions to which the Act applied. This argument is without
14
This requirement now appears in 15 Pa. C.S. § 204(c).
16
merit. There was ample evidence before the hearing examiner and Board that
Bauer conducted auctions through ABT and that ABT’s website advertised toy
train auctions. (C.R. Item 34, Exs. C-5 & D-1 ¶5, R.R. at 212-220, 248.) As was
demonstrated above, these auctions included auctions that were not conducted
through an “online Internet bidding platform.” The evidence therefore established
that ABT, as part of its business, carried out and advertised auctions, as that term
was defined by the Act, and that ABT was an “auction company” to which Section
10(a)’s license requirement applied.
Finally, in addition to challenging the validity of the citations, Bauer
claims that the Board violated his and ABT’s due process rights to a fair and
impartial tribunal. Bauer bases this argument on contentions that the Board was
almost entirely composed of members of the Pennsylvania Auctioneers
Association, who are his competitors, and that the Board showed bias in its
findings. Neither of these contentions has merit.
Bauer makes allegations in his brief concerning members of the Board
and the organizations to which they belong. These allegations, however, are
unsupported by anything in the certified record. This Court may consider on
appeal only what is in the certified record. B.K. v. Department of Public Welfare,
36 A.3d 649, 657 (Pa. Cmwlth. 2012); C.J. v. Department of Public Welfare, 960
A.2d 494, 500 (Pa. Cmwlth. 2008). Accordingly, Bauer’s allegations must be
disregarded and the only evidence before this Court as to the Board’s membership
is what the Act provides. Section 31 of the Act provides, and provided at the time
of all of the Board’s actions in this matter, that the Board consists of the
Commissioner of Professional and Occupational Affairs, the Director of the
Bureau of Consumer Protection in the Office of Attorney General or his designee,
17
two individuals representing the public at large, one registered trading assistant,
and four licensed auctioneers. 63 P.S. § 734.31(a). The licensed auctioneers,
registered trading assistant, and individuals representing the public are all
appointed by the Governor and confirmed by the State Senate. Id. This
composition does not prevent the Board from fairly and impartially adjudicating
citations for violations of the Act.
North Carolina State Board of Dental Examiners v. F.T.C., _ U.S. _,
135 S. Ct. 1101 (2015), relied on by Bauer, is not to the contrary. In North
Carolina State Board of Dental Examiners, the Supreme Court did not hold that
members of the regulated profession cannot constitute a fair and impartial tribunal;
rather, it held only that such board members were not under the facts of that case
clothed with state immunity from injunctive relief under the federal antitrust laws.
In fact, the Court in North Carolina State Board of Dental Examiners recognized
that states have substantial reasons for staffing such boards with members of the
profession, who would be most familiar with the subjects they are to address. Id.
at _, 135 S. Ct. at 1115. Moreover, the facts in that case were substantially
different from the Board’s composition and actions here. Seven of the eight
members of the state board in North Carolina State Board of Dental Examiners
were members of the regulated professions and those seven members were elected
by the other licensed members of their professions, not appointed by the state. Id.
at _, 135 S. Ct. at 1108. In addition, the actions of the state board there involved a
subject that was not addressed by the legislature in the governing statute and were
not subject to review or reversal by state officials. Id. at _, 135 S. Ct. at 1116.
Here, in contrast, the members of the Board who were Bauer’s competitors were
appointed by the Commonwealth, the Board’s action applied express statutory
18
provisions adopted by the legislature, and the Board’s interpretation and
application of the Act is subject to judicial review by this Court.
The record amply demonstrates that the Board provided Bauer and
ABT a full, fair and impartial hearing and adjudication in this matter. Bauer and
ABT received a full evidentiary hearing before a hearing examiner whose
impartiality Bauer has not challenged and a full opportunity to brief the legal
questions at issue. The hearing examiner’s proposed adjudication and the Board’s
decision addressing Bauer’s and ABT’s exceptions and upholding the citations are
detailed, well-reasoned and supported by the evidence. Moreover, there is nothing
in the record to suggest that the issuance of the citations was affected by any intent
to diminish competition. The investigation was prompted by a complaint filed by
one of Bauer’s auction clients, not a complaint of an auctioneer, and the
investigation was conducted by an employee of the Department of State, not by an
auctioneer or auctioneering association. (C.R. Item 34, H.T. at 14, 22, 26-27, R.R.
at 148, 156, 160-161.)
For the foregoing reasons, we affirm the order of the Board in this
matter.
____________________________________
JAMES GARDNER COLINS, Senior Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Drew J. Bauer, individually and :
d/b/a AmbroseBauer Trains (LLC), :
:
Petitioner :
:
v. : No. 501 M.D. 2015
:
Pennsylvania State Board of :
Auctioneer Examiners, :
:
Respondent :
ORDER
AND NOW, this 16th day of February, 2017, the order of the State
Board of Auctioneer Examiners in the above matter is affirmed.
____________________________________
JAMES GARDNER COLINS, Senior Judge | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126661/ | U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32193 (rem)
________________________
UNITED STATES
Appellee
v.
Alan J. KILLION, Jr.
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the Air Force Trial Judiciary
On Remand from
the United States Court of Appeals for the Armed Forces
Decided 15 February 2017
________________________
Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 14 days, re-
duction to E-1, and a reprimand. Sentence adjudged 10 October 2013 by
SpCM convened at Osan Air Base, Republic of Korea.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before DUBRISKE, SANTORO, and C. BROWN, Appellate Military
Judges
Judge SANTORO delivered the opinion of the Court, in which Senior
Judge DUBRISKE and Judge C. BROWN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
SANTORO, Judge:
Appellant pleaded guilty to being drunk and disorderly and unlawfully en-
tering the on-base residence of another Airman in violation of Article 134,
United States v. Killion, No. ACM S32193 (rem)
UCMJ, 10 U.S.C. § 934. Appellant pleaded not guilty to using provoking speech
in violation of Article 117, UCMJ, 10 U.S.C. § 917, but was convicted of that
offense by officer and enlisted members sitting as special court-martial. The
court-martial sentenced him to a bad-conduct discharge, confinement for 14
days, reduction to E-1, and a reprimand. The convening authority approved
the sentence as adjudged.
We affirmed the findings and sentence on 28 January 2015. United States
v. Killion, No. ACM S32193, 2015 CCA LEXIS 28 (A.F. Ct. Crim. App. 28 Jan
2015) (unpub. op.). Our superior court then set aside and dismissed the pro-
voking speech charge and specification. United States v. Killion, 75 M.J. 209
(C.A.A.F 2016). This case is now back before us to determine whether we can
reassess Appellant’s sentence or must remand the case for a rehearing on sen-
tence.
I. BACKGROUND
After a night of excessive drinking, Appellant became belligerent and dis-
orderly, accosted strangers with profane outbursts, and resisted his friend’s
efforts to convince him to return home. Instead, Appellant jumped a fence and
entered the apartment of a senior noncommissioned officer he did not know,
frightening the residents and neighbors who called security forces. Appellant
was apprehended by police and evaluated by emergency medical technicians
who decided to transport him to the base emergency room.
Once there, while undergoing treatment for his altered mental state and
injuries to his wrist and knee, Appellant physically and verbally lashed out at
medical providers. Struggling against restraint by two security forces members
and the medical staff, he verbally accosted several medical providers, calling
one female nurse a “c[**]t” and medical technicians “Asian douchebags” and
“ch[*]nk.” This continued intermittently for over an hour, ending only after the
medical staff determined it was necessary to sedate him.
II. DISCUSSION – SENTENCE REASSESSMENT
The provoking speech charge having been set aside and dismissed, we must
either reassess Appellant’s sentence or remand for a rehearing on sentence.
Applying the analysis set forth in United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013); United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006); United
States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006); and United States v. Sales, 22
M.J. 305 (C.M.A. 1986), and carefully considering the entire record and the
totality of the circumstances, we are confident that we can reassess the sen-
tence. There has not been a change in the penalty landscape as the maximum
punishment authorized remains the jurisdictional limit of this special court-
2
United States v. Killion, No. ACM S32193 (rem)
martial. All the evidence initially admitted in sentencing remained relevant
and admissible as res gestae of the affirmed charge and specifications.
When this case was initially before us, we summarized the evidence:
The prosecution admitted substantial evidence of the disruption
the appellant caused at the home of an innocent NCO and his
family. He entered onto their patio while the NCO’s wife was in
the shower. Frightened by his banging and yelling, the wife
grabbed her daughter and escaped to a neighbor’s apartment.
After gaining entry, the appellant overturned furniture and re-
fused to leave. After receiving a panicked, incoherent call from
his wife, the NCO had to rush home from a unit event, terrified
that something awful had happened to his family. The occu-
pant’s 8-year-old daughter could not sleep alone for several
nights because of the fear and insecurity his misconduct caused.
Even after apprehension by security forces, the appellant was
uncooperative and tried to kick a military working dog. He im-
peded the paramedics’ efforts to administer treatment, swatting
at their hands and removing their equipment.
The appellant’s disruptive conduct continued at the emer-
gency room where it took six people approximately 40 minutes
just to get the appellant into the bed. For approximately three
hours, until the sedation set in, he continued to use foul and ag-
gressive language towards the staff. His behavior was com-
pletely inconsistent with the good order and discipline that
forms the foundation of military service.
Killion, 2015 CCA LEXIS 28, at *9–10.
Although the medical providers who were the targets of the speech that
gave rise to the now-dismissed charge testified, the weight of their testimony
in aggravation paled in comparison to the testimony of the victims from the
unlawful entry incident. None of the providers was actually provoked by Ap-
pellant’s actions and all had received training on how to handle aggressive pa-
tients as part of their medical duties. We are confident that even in the absence
of the provoking speech charge, the court-martial would not have sentenced
Appellant to any less than the sentence originally adjudged. We therefore re-
assess Appellant’s sentence to that which was adjudged and approved: a bad-
conduct discharge, confinement for 14 days, reduction to E-1, and a reprimand.
In reassessing Appellant’s sentence, we necessarily have also concluded
that the reassessed sentence is appropriate. We assess sentence appropriate-
ness by considering Appellant, the nature and seriousness of the offense, Ap-
pellant’s record of service, and all matters contained in the record of trial.
3
United States v. Killion, No. ACM S32193 (rem)
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v.
Bare, 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d, 65 M.J. 35 (C.A.A.F.
2007). The sentence as reassessed is appropriate for this Airman who volun-
tarily became intoxicated, caused a disturbance in two different locations, and
broke into the on-base residence of a fellow Airman and his family.
III. CONCLUSION
The sentence, as reassessed, is correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, as the findings for
Charge I and its two specifications have previously been affirmed, the sen-
tence, as reassessed, is now AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
4 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289354/ | FILED
JUNE 28, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34768-1-III
Petitioner, )
)
v. )
)
LASHAWN DOUXSHAE JAMEISON, ) PUBLISHED OPINION
)
Respondent, )
)
KWAME DAVON BATES )
ANTHONY GILBERT WILLIAMS )
)
Defendants. )
FEARING, J. — We address intriguing questions worthy of a criminal law class
examination, but which carry monumental consequences to the accused Lashawn
Jameison. This appeal primarily asks whether an accused, who, in response to an
antagonist retrieving a gun, also arms himself and hides behind a vehicle, suffers
accomplice liability for homicide when, without the accused shooting his firearm, the
antagonist fires his gun and the bullet strikes and kills an innocent bystander. The State
argues that the accused bears liability because he encouraged his adversary to fire the
gun. The State emphasizes that Lashawn Jameison later exchanged gunfire.
No. 34768-1-III
State v. Jameison
The appeal also asks whether the same accused may be convicted of a drive-by
shooting when he retrieves a gun from the car in which he arrived to the scene of the
homicide but crouches behind another car at the time he returns fire. We affirm the trial
court’s summary dismissal of the homicide charges and twelve of fourteen of the drive-
by shooting charges. We affirm the dismissal of the drive-by shooting charges based on
our decision in State v. Vasquez, 2 Wash. App. 2d 632, 415 P.3d 1205 (2018), decided after
the trial court ruling.
FACTS
This prosecution arises from a confrontation between Kwame Bates and defendant
Lashawn Jameison, on the one hand, and Anthony Williams, on the other hand, during
which skirmish Williams fired his gun and killed bystander Eduardo Villagomez. A
video partially captures the confrontation and shooting.
On the night of January 17-18, 2016, Lashawn Jameison and Kwame Bates joined
a group of five hundred young adults at the Palomino Club in Spokane to celebrate
Martin Luther King Day. Bates drove Jameison to the club in a white Toyota Camry
owned by Bates’ girlfriend, which car gains significance as events transpire. Bates
parked the Camry on Lidgerwood Street in front of a Department of Licensing building
adjacent to the club. A Chrysler parked behind the Camry on the street. We do not know
the time of night that Bates and Jameison arrived at the celebration.
The Palomino Club closed at 2 a.m. on January 18. As Lashawn Jameison and
2
No. 34768-1-III
State v. Jameison
Kwame Bates exited the club at closing, another patron, Anthony Williams, shoved
Sierra, a female friend of Bates. The shove began a deadly chain of events. As a result
of the push, Bates and Williams argued. Jameison did not participate in the quarrel.
Williams jumped a metal fence bordering the club parking lot, retrieved a handgun from
a car parked in the adjacent Department of Licensing parking lot, and returned to the
entrance of the club. Williams paced to and from the club building, the adjacent lot, and
Lidgerwood Street.
Both Kwame Bates and Lashawn Jameison, knowing that Anthony Williams
possessed a firearm, returned to the white Toyota Camry and armed themselves. Both
Bates and Jameison lawfully owned firearms. During this activity, other patrons of the
Palomino Club departed the building and walked to their cars parked in the club parking
lot, in the adjacent parking lot, and on the street.
Lashawn Jameison, with gun in hand, retreated and separated himself from
Kwame Bates and Anthony Williams. Jameison hid at the rear of the Chrysler parked
behind the Camry while Bates stood by a power pole near the Camry. Bates and
Williams, with Williams then in the Department of Licensing parking lot, faced one
another as Martin Luther King Day celebrants continued to walk to their cars. According
to Bates, he “does not back down” from a fight as long as the fight is fair. Clerk’s Papers
(CP) at 158. Jameison crouched behind the Chrysler.
3
No. 34768-1-III
State v. Jameison
A friend of Anthony Williams drove the friend’s car into the parking lot.
Williams stepped behind his friend’s vehicle and discharged his gun in Bates’ direction.
The bullet missed Bates and struck Eduardo Villagomez, a bystander walking along the
street. Villagomez slumped to the street. Tragically an unsuspecting driver of a car
drove over Villagomez’s stricken body. Villagomez died as a result of the bullet wound
and the force of the vehicle.
After Anthony Williams’ discharge of gunfire, Kwame Bates ran from the power
pole and joined Lashawn Jameison behind the stationary Chrysler. Seconds after
Williams fired the first shot, Bates and Jameison stood, returned fire, and crouched again
behind the Chrysler. Jameison fired, at most, two shots toward Williams. Williams
returned additional shots toward Bates and Jameison. Bates rose again and returned fire
4
No. 34768-1-III
State v. Jameison
as Williams entered the vehicle driven by his friend. The friend drove the vehicle from
the parking lot and club. Bates and Jameison entered the Camry and also departed the
neighborhood.
Because the State contends inferences from the facts support accomplice liability,
we now repeat and quote evidence in its unedited form and as presented to the trial court.
Spokane Police Department Detective Marty Hill reviewed a security video, and, based
on this viewing, wrote in an amended statement of investigating officer:
This individual is a black male dressed in a bright red top (later
identified as Lashawn D. Jameison, BM, 04/18/1994). . . . Jameison
appears to be crouching down behind the Chrysler 300 as if hiding prior to
being joined by Bates.
CP at 8. Detective Hill added:
A sedan, later found to be driven by Jazzmine Dunlap, pulls into the
lot[,] and a male approaches the driver rear door. This male, later identified
as Anthony G. Williams, B/M, 08/18/1993, then begins to fire shots at
Jameison and Bates who are secreted behind the Chrysler 300. The victim,
later identified as Eduardo Villagomez, HM, 01/15/1995, and his three
companions, later identified as Carlos Villagomez, Miguel L. Martinez, and
Rosario A. Ayala, are on Lidgerwood St. to the north and directly in the
line of fire, but not involved in this gunfire. Williams appears to be
engaging Bates. Williams appears to fire first at Bates, who then retreats to
the Chrysler 300 where Jameison had secreted himself. Jameison and Bates
are observed shooting south towards Williams, exchanging gunfire.
CP at 9 (emphasis added) (boldface omitted).
In his amended statement of investigating officer, Detective Marty Miller shares
the story as told by Kwame Bates during an interview by Miller:
5
No. 34768-1-III
State v. Jameison
As he [Bates] approached his car, the white 1993 Toyota Camry . . . ,
he did see L-Jay [Lashawn Jameison] behind the Chrysler 300. Bates put
himself standing in the street to the east of his car. Bates said the male with
the gray sweatshirt [Anthony Williams] approached him from the parking
lot of the DMV [Department of Motor Vehicles] building. Bates stated this
male was yelling at him and he thought he and this unknown male were
going to have a fair fight. Bates stated he does not back down from fights
as long as they are fair.
Bates stated this unknown male pulled out his firearm. Bates said he
ran to his right and jumped behind the Chrysler 300 as the male began
shooting. Bates said he could hear bullets striking the Chrysler. Bates
admitted that he returned fire towards this male as the male was running
towards a gray colored car. Bates indicated that he fired between six and
seven shots. Bates said when the male entered the car, he did not continue
to shoot anymore, but he and L-Jay jumped into the white 1993 Toyota
Camry . . . and they drove away.
Bates said it happened so fast, “I thought it was over for me.”
CP at 12.
Stephanie Collins, a deputy prosecuting attorney, signed a statement outlining
facts in chronological order. Collins declared in part:
11. A Chevy Cruze pulls into the DOL [Department of Licensing]
lot—later determined to be driven by a friend of Williams’, Jazzmine
Dunlap. The car stops in the DOL lot and Williams approaches it.
Williams faces Lidgerwood and is walking back and forth along the
driver’s side of the car;
12. Williams and Bates square off. They are approximately 30-60
feet apart. Bates is facing Williams in the DOL lot. Williams is facing
Bates, whose [sic] is on Lidgerwood.
CP at 133-34 (emphasis added).
PROCEDURE
The State of Washington charged Lashawn Jameison with first degree murder by
6
No. 34768-1-III
State v. Jameison
extreme indifference and, in the alternative, first degree manslaughter as the result of the
death of Eduardo Villagomez. The State acknowledged that Anthony Williams shot
Eduardo Villagomez but charged Jameison with accomplice liability. The State also
charged Jameison with fourteen counts of drive-by shooting as a result of Jameison’s
returning of gunfire. The fourteen charges arise from the presence of at least fourteen
club patrons in the vicinity at the time of the shooting.
Lashawn Jameison moved to dismiss the homicide charges pursuant to State v.
Knapstad, 107 Wash. 2d 346, 729 P.2d 48 (1986). Jameison emphasized that the video of
the scene and law enforcement officers’ reports and affidavits demonstrated beyond
dispute that Anthony Williams killed the decedent while Jameison ducked behind a car,
shielding himself from Williams’ attack. Jameison added that, because he had not fired a
shot by the time Williams’ bullet struck Eduardo Villagomez and because he himself was
a victim of Williams’ violence, he could not be guilty of murder even as an accomplice.
Jameison posited the same arguments for the alternative charge of manslaughter.
Lashawn Jameison also moved to dismiss the drive-by shooting charges for
insufficient evidence of recklessness. In the alternative, he argued that all but one count
should be dismissed because he fired only one shot. He based the latter argument on law
enforcement’s discovering, at the crime scene, only one shell casing matching his gun.
As part of its response to Lashawn Jameison’s motion to dismiss, the State filed a
certificate of Deputy Prosecuting Attorney Stefanie W. Collins, which outlines the facts
7
No. 34768-1-III
State v. Jameison
in serial and chronological form. We previously quoted two paragraphs from the
certificate. Collins declared that she based the facts on her review of police reports and
security video. In reply, Jameison asked that Collins’ certificate be stricken because
Collins did not base her certificate on percipient knowledge. The trial court’s order of
dismissal does not indicate whether the court granted the motion to strike.
The trial court dismissed the first degree murder and first degree manslaughter
charges on the basis, in part, that Lashawn Jameison did not cause the death of Eduardo
Villagomez. The trial court also ruled that the unit of prosecution for drive-by shooting
charges was the number of shots fired by Jameison. Because of a dispute of fact as to
whether Jameison fired one or two shots, the trial court dismissed all but two of the
fourteen drive-by shooting counts.
The State requested and this court granted discretionary review of the trial court’s
dismissal of some of the pending charges. After we accepted discretionary review, this
court decided State v. Vasquez, 2 Wash. App. 2d 632 (2018), which delineates the elements
of a drive-by shooting prosecution. We requested that both parties address Vasquez
during oral argument.
LAW AND ANALYSIS
Facts and Inferences
The State appeals dismissal of the murder, manslaughter, and the twelve drive-by
shooting charges. Lashawn Jameison has not sought review of the trial court’s refusal to
8
No. 34768-1-III
State v. Jameison
dismiss the remaining two drive-by shooting counts. Before addressing the substantive
law of homicide and drive-by shootings, we first determine what facts to apply to the law.
The parties contest what constitutes the unquestioned facts and the permissible inferences
from those facts. We must resolve this dispute of undisputed facts.
CrR 8.3(c) permits an accused to seek dismissal of charges before trial. The rule
declares:
On Motion of Defendant for Pretrial Dismissal. The defendant may,
prior to trial, move to dismiss a criminal charge due to insufficient evidence
establishing a prima facie case of the crime charged.
(1) The defendant’s motion shall be in writing and supported by an
affidavit or declaration alleging that there are no material disputed facts and
setting out the agreed facts, or by a stipulation to facts by both parties. The
stipulation, affidavit or declaration may attach and incorporate police
reports, witness statements or other material to be considered by the court
when deciding the motion to dismiss. . . .
(2) The prosecuting attorney may submit affidavits or declarations in
opposition to defendant’s supporting affidavits or declarations. The
affidavits or declarations may attach and incorporate police reports, witness
statements or other material to be considered by the court when deciding
defendant's motion to dismiss. . . .
(3) The court shall grant the motion if there are no material disputed
facts and the undisputed facts do not establish a prima facie case of guilt.
In determining defendant’s motion, the court shall view all evidence in the
light most favorable to the prosecuting attorney and the court shall make all
reasonable inferences in the light most favorable to the prosecuting
attorney. The court may not weigh conflicting statements and base its
decision on the statement it finds the most credible. . . .
(4) If the defendant’s motion to dismiss is granted, the court shall
enter a written order setting forth the evidence relied upon and conclusions
of law. The granting of defendant’s motion to dismiss shall be without
prejudice.
(Emphasis added) (boldface omitted).
9
No. 34768-1-III
State v. Jameison
The order in response to Lashawn Jameison’s motion to dismiss does not list the
affidavits, declaration, or reports reviewed by the trial court. Therefore, we have scoured
all evidence forwarded to this appellate court. We included in our review the certificate
of Stephanie Collins, to which Jameison objected, without determining the propriety of
its use. Jameison’s trial court entered findings of fact, but we conclude we must
determine the facts on our own since the trial court does not resolve disputed facts on a
motion to dismiss.
Trial courts should grant an accused’s motion to dismiss when the undisputed facts
do not establish a prima facie case of guilt. CrR 8.3(c)(3). The law labels such motions
to dismiss as Knapstad motions in reference to a leading Washington decision, State v.
Knapstad, 107 Wash. 2d 346 (1986). The Supreme Court adopted CrR 8.3(c)(3) in light of
its Knapstad decision. A Knapstad motion in a criminal case corresponds to a summary
judgment motion in a civil case.
We review de novo a trial court’s decision to grant a Knapstad motion and to
dismiss a criminal prosecution under CrR 8.3(c). State v. Bauer, 180 Wash. 2d 929, 935,
329 P.3d 67 (2014). During review, as demanded by the criminal rule, this court views
the facts and all reasonable inferences in the light most favorable to the State. State v.
O’Meara, 143 Wash. App. 638, 642, 180 P.3d 196 (2008). An appellate court will uphold
the trial court’s dismissal of a charge if no rational trier of fact could have found beyond
10
No. 34768-1-III
State v. Jameison
a reasonable doubt the essential elements of the crime. State v. Snedden, 112 Wash. App.
122, 127, 47 P.3d 184 (2002), aff’d, 149 Wash. 2d 914, 73 P.3d 995 (2003).
On discretionary review, the State of Washington writes that Lashawn Jameison’s
act of arming himself and “squaring off” with Anthony Williams encouraged Williams to
fire his gun, which ultimately caused the death of Eduardo Villagomez. We agree the
record shows that Jameison armed himself. We disagree with the State’s assertion that
Jameison “squared off” with Williams. The record of evidence repeatedly states that
Anthony Williams and Kwame Bates “squared off.” The record also indicates that
Williams shot toward Jameison in addition to Bates. Nevertheless, whereas Jameison
armed himself, no police report or other record claims that Jameison “squared off” with
Williams. He instead crouched behind a car. Assuming Jameison “squared off” with
Williams, the “squaring off” occurred after Williams fired the fatal shot.
The State additionally writes that Lashawn Jameison assumed a fighting position.
We also disagree with this factual assertion. The only testimony about Jameison’s
physical stance concerns his crouching as if hiding behind a car because of Anthony
Williams’ brandishing a weapon. The video confirms this testimony.
The State repeatedly refers, in its briefing, to an agreement between Lashawn
Jameison and Anthony Williams to fight. The record lacks any entry of an agreement
between Jameison and Williams to fight, let alone an agreement between Kwame Bates
and Williams to fight. The State concedes the record does not authenticate that Jameison
11
No. 34768-1-III
State v. Jameison
overtly agreed to fight. The State contends, however, that Jameison’s actions in taking
up arms and assuming a fighting position near Bates manifested Jameison’s agreement to
resolve differences by violence. In this regard, the State faults the trial court for failing to
draw all reasonable inferences from the facts in favor of the State. We would be more
likely to reverse the trial court’s dismissal of homicide charges if facts supported such a
rational inference of an agreement to which Jameison was a party.
We struggle in the abstract with what assay to employ when adjudging what
reasonable inferences we may deduce from established facts. Therefore, we first comb
for definitions and synonyms for our key word “inference.” Our state high court has
defined an “inference” as a logical deduction or conclusion from an established fact.
Fannin v. Roe, 62 Wash. 2d 239, 242, 382 P.2d 264 (1963). State v. Aten, 130 Wash. 2d 640,
658, 927 P.2d 210 (1996) refers to a “reasonable and logical” inference, again suggesting
that a permissible inference must be logical. A foreign court wrote that a reasonable
inference may be defined as a process of reasoning whereby, from facts admitted or
established by the evidence or from common knowledge or experience, a trier of fact may
reasonably conclude that a further fact is established. Stambaugh v. Hayes, 1940-NMSC-
048, 44 N.M. 443, 103 P.2d 640, 645. 5 West’s Encyclopedia of American Law 396 (2d
ed. 2005) partly defines “inference” as:
Inferences are deductions or conclusions that with reason and
common sense lead the jury to draw from facts which have been established
by the evidence in the case.
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No. 34768-1-III
State v. Jameison
Based on these definitions, we must summon logic, common sense, and
experience in surmising additional or circumstantial facts from already established or
direct facts. We hope that our experience coincides with common sense and our common
sense abides logic.
Washington case law further teaches that a verdict does not rest on speculation or
conjecture when founded on reasonable inferences drawn from circumstantial facts. State
Farm Mutual Insurance Company v. Padilla, 14 Wash. App. 337, 339-40, 540 P.2d 1395
(1975). This proposition conversely suggests that an inference is not reasonable if based
on speculation or conjecture. This observation, however, only begs the question of what
constitutes speculation and conjecture.
A court occasionally faces the question of whether the trier of fact may infer only
those facts that necessarily or always follow from established circumstances, whether the
trier of fact may deduce those facts likely to have occurred as a result of the underlying
circumstances, or whether the trier of fact may even employ inferences that exist as one
of many possible inferences. We conclude that any reasonable inference must likely, but
not necessarily, follow from an underlying truth.
When evidence is equally consistent with two hypotheses, the evidence tends to
prove neither. Stambaugh v. Hayes, 103 P.2d at 645 (1940). We will not infer a
circumstance when no more than a possibility is shown. Brucker v. Matsen, 18 Wash. 2d
375, 382, 139 P.2d 276 (1943). We are not justified in inferring, from mere possibilities,
13
No. 34768-1-III
State v. Jameison
the existence of facts. Gardner v. Seymour, 27 Wash. 2d 802, 810-11, 180 P.2d 564 (1947).
Some of the decisions we cite entail civil appeals, but the law should demand stricter
controls on use of inferences in a criminal case.
We also conclude that, in determining whether we should draw an inference that
Lashawn Jameison agreed to fight, we do not only rely on the facts that Jameison
retrieved his weapon and hid behind a car. Some cases teach that, when drawing
inferences, the trier of fact should not isolate discrete facts but instead only draw
reasonable inferences after viewing the evidence as a whole. State v. Sanchez, 2017 MT
192, 388 Mont. 262, 399 P.3d 886, 890; State v. Stull, 403 N.J. Super. 501, 506, 959 A.2d
286 (App. Div. 2008).
A leading Washington criminal decision regarding reasonable inferences comes in
the setting of the corpus delicti rule but should apply to Knapstad motions because the
corpus delicti question involved the sufficiency of evidence based on reasonable
inferences. In State v. Aten, 130 Wash. 2d 640 (1996), the high court reviewed whether
reasonable inferences from evidence, other than Vicki Aten’s confession, supported a
finding that a criminal act caused the death of an infant so that the corpus delicti rule did
not bar introduction of the confession as evidence. On the night of January 30, Aten
cared for a four-month-old child. She found the child dead the next morning. A
physician, who performed an autopsy on the infant, concluded that the child died of
sudden infant death syndrome (SIDS), a form of acute respiratory failure. He
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No. 34768-1-III
State v. Jameison
acknowledged suffocation could cause acute respiratory failure. But he also testified he
could not determine in an autopsy whether SIDS or suffocation caused the acute
respiratory failure. The State argued that the evidence sufficed to prove the corpus delicti
because one logical and reasonable inference from the evidence was that the infant died
from suffocation by Aten, a criminal act.
The Supreme Court, in State v. Aten, noted that it had not previously addressed
directly the issue whether the State establishes the corpus delicti when evidence
independent of a defendant’s statements is consistent with reasonable and logical
inferences of both criminal agency and innocence. The court held that the State does not
establish corpus delicti when independent evidence supports reasonable and logical
inferences of both criminal agency and noncriminal cause. The circumstantial evidence
proving the corpus delicti must be consistent with guilt and inconsistent with a hypothesis
of innocence. Accordingly, since the independent evidence from the child’s death
supported a reasonable and logical inference or hypothesis of innocence, that is that the
child died of SIDS, insufficient evidence established the corpus delicti.
Washington law, if not the federal constitution, demands that inferences in the
criminal setting be based only on likelihood, not possibility. When an inference supports
an element of the crime, due process requires the presumed fact to flow more likely than
not from proof of the basic fact. State v. Hanna, 123 Wash. 2d 704, 710, 871 P.2d 135
(1994). Whether an inference meets the appropriate standard must be determined on a
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No. 34768-1-III
State v. Jameison
case-by-case basis in light of the particular evidence presented to the jury in each case.
State v. Hanna, 123 Wash. 2d at 712.
We conclude that we should not draw an inference that Lashawn Jameison agreed
to fight with Anthony Williams. Merriam Webster’s online dictionary lists “agree” as a
transitive verb meaning “a : to concur in (something . . . ) b : to consent to a course of
action.” https://www.merriam-webster.com/dictionary/agree (last visited June 19, 2018).
No evidence directly confirms that Jameison concurred in Williams shooting at
Jameison’s direction. Experience, common sense and logic easily depict Williams acting
on his own without any consent from Jameison or Bates. The State in essence portrays
Lashawn Jameison and Anthony Williams as agreeing to a duel. The totality of the
undisputed facts, however, leads one to conclude that Jameison never consented to a duel.
Jameison retrieved his firearm only after Williams grabbed his weapon and in order to
defend himself. He could have, but never did, shoot at Williams before Williams first
shot in his direction.
The State also writes that Lashawn Jameison encouraged Anthony Williams to fire
his weapon. The State may ask this court to infer encouragement as a factual matter from
the conduct of Jameison. We deem whether or not Jameison encouraged Williams to be
more a legal question, since we must decide whether any encouragement occurred within
the meaning of RCW 9A.08.020, the accomplice liability statute.
16
No. 34768-1-III
State v. Jameison
Homicide
We arrive at our discussion of the substantive law. The murder and manslaughter
charges raise the same question so we merge the analysis of these two alternative
charges. We must decide whether, under the undisputed facts, the State can sustain a
conviction for either crime against Lashawn Jameison based on accomplice liability.
Before addressing accomplice liability, we review the murder and manslaughter
statutes. RCW 9A.32.030 covers first degree murder by extreme indifference. The
statute declares:
(1) A person is guilty of murder in the first degree when:
....
(b) Under circumstances manifesting an extreme indifference to
human life, he or she engages in conduct which creates a grave risk of death
to any person, and thereby causes the death of a person. . . .
(Emphasis added.) The mens rea of murder by extreme indifference is aggravated
recklessness, which requires greater culpability than ordinary recklessness or more than
mere disregard for the safety of others. State v. Dunbar, 117 Wash. 2d 587, 594, 817 P.2d
1360 (1991).
Manslaughter in the first degree occurs when a person recklessly causes the death
of another person. RCW 9A.32.060. The statute intones:
(1) A person is guilty of manslaughter in the first degree when:
(a) He or she recklessly causes the death of another person. . . .
(Emphasis added.) “Recklessly” means, for purposes of defining manslaughter, that a
17
No. 34768-1-III
State v. Jameison
person knew of and disregarded a substantial risk that a homicide may occur. State v.
Gamble, 154 Wash. 2d 457, 467, 114 P.3d 646 (2005). First degree manslaughter differs
from first degree murder in that the former only requires mere recklessness, while the
latter aggravated recklessness.
This appeal concerns more the nature of accomplice liability than the elements of
murder or manslaughter. RCW 9A.08.020 imposes accomplice liability in the following
circumstances:
(1) A person is guilty of a crime if it is committed by the conduct of
another person for which he or she is legally accountable.
(2) A person is legally accountable for the conduct of another person
when:
....
(c) He or she is an accomplice of such other person in the
commission of the crime.
(3) A person is an accomplice of another person in the commission
of a crime if:
(a) With knowledge that it will promote or facilitate the commission
of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other person to
commit it; or
(ii) Aids or agrees to aid such other person in planning or
committing it; or
(b) His or her conduct is expressly declared by law to establish his or
her complicity.
....
(5) Unless otherwise provided by this title or by the law defining the
crime, a person is not an accomplice in a crime committed by another
person if:
(a) He or she is a victim of that crime. . . .
(Emphasis added.) The State relies on the word “encourages” inserted in RCW
18
No. 34768-1-III
State v. Jameison
9A.08.020(3)(a)(i) in prosecuting Lashawn Jameison.
When we read the accomplice liability statute, RCW 9A.08.020, with the murder
and manslaughter statutes, RCW 9A.32.030 and RCW 9A.32.060, this appeal raises
numerous discrete questions. First, did Lashawn Jameison cause the death of Eduardo
Villagomez? Second, may Lashawn Jameison be guilty of accomplice liability when the
mens rea under the accomplice liability statute affords liability based on knowingly
promoting a crime but the underlying crimes demand only a mens rea of recklessness?
Stated differently, does Washington’s accomplice liability statute permit convictions
based on underlying crimes with a mental state less than knowledge? Third, did Lashawn
Jameison know that his arming of himself and hiding behind a car would promote or
facilitate the killing of someone? Fourth, did Lashawn Jameison encourage Anthony
Williams to discharge Williams’ first shot that killed Villagomez? Fifth, was Jameison a
victim of the initial shot fired by Williams? Sixth and related to the fifth question, may
an accused be the accomplice to a shooting when the shooter attempts to harm the
accused or a companion of the accused with the deadly bullet?
On appeal, the parties ably devote pages to the question of whether one can be an
accomplice to a crime with a mens rea of recklessness. The trial court based its dismissal
on the lack of causation. We ignore these questions and render our decision on other
grounds. We hold discretion to affirm on any grounds supported by the record. State ex
rel. Eikenberry v. Frodert, 84 Wash. App. 20, 25, 924 P.2d 933 (1996). We address and
19
No. 34768-1-III
State v. Jameison
conflate the fourth, fifth, and six questions. We find that the conduct of Jameison in
arming himself and hiding behind a car from the bullets of Anthony Williams ineptly
fulfills the meaning of “encouragement” and his situation borders on victimhood. In turn,
imposing criminal liability on Jameison conflicts with general principles of accomplice
liability and disserves policies behind imposing accomplice liability. Numerous
decisions support our conclusion.
According to the State, Jameison encouraged Anthony Williams’ conduct by
words or conduct, including taking up arms with his companion Kwame Bates, agreeing
to fight, assuming a strategic fighting position, and squaring off with Williams. The State
adds that Jameison colluded with Bates to engage in an extremely reckless gunfight that
resulted in the unintended death of Eduardo Villagomez. According to the State, but for
Jameison’s conduct, Williams “may not” have been encouraged to fire his pistol. We
have already concluded that the record fails to support inferences that Jameison agreed to
a fight, assumed a strategic fighting position, or squared off with Williams. Therefore,
we ask whether Jameison’s retrieval of a weapon, walking to the Chrysler, and crouching
behind the car “encouraged” the fatal criminal conduct of Anthony Williams within the
meaning of RCW 9A.08.020(3)(a)(i).
Our key term is “encourages.” RCW 9A.08.020 lacks a definition for this
common word. Because of the word’s familiarity, we should not need to ponder a
dictionary definition, but we mention one for its limited assistance. A dictionary defines
20
No. 34768-1-III
State v. Jameison
“encourage” as:
1 a: to inspire with courage, spirit, or hope: HEARTEN
- she was encouraged to continue by her early success
B: to attempt to persuade: URGE
- they encouraged him to go back to school
2: to spur on: STIMULATE
- warm weather encourages plant growth
3: to give help or patronage to: FOSTER
- government grants designed to encourage conservation
https://www.merriam-webster.com/dictionary/encourage (last visited June 19, 2018).
The conduct of Lashawn Jameison awkwardly fits within the import of inspiring Anthony
Williams for success, persuading Williams to shoot, spurring Williams to action, or
patronizing Williams.
Under Washington case law, regardless of whether the State relies on the word
“encourage” or the words “solicit” or “command” within RCW 9A.08.020(3)(a)(i), an
accomplice must associate himself with the principal’s criminal undertaking, participate
in it as something he desires to bring about, and seek by his action to make it succeed. In
re Welfare of Wilson, 91 Wash. 2d 487, 491, 588 P.2d 1161 (1979); State v. LaRue, 74 Wn.
App. 757, 762, 875 P.2d 701 (1994). Presence and knowledge alone are insufficient,
absent evidence from which a readiness to assist or an intent to encourage could be
inferred, to support a finding of accomplice liability. In re Welfare of Wilson, 91 Wash. 2d
at 491-92.
21
No. 34768-1-III
State v. Jameison
Lashawn Jameison never sought to assist Anthony Williams. He never directly
encouraged Williams to shoot either himself or Kwame Bates. Williams wanted to shoot
or wound Bates or Jameison. Jameison did not seek this goal. Jameison and Williams
acted as antagonists. They entered any fight from opposite poles.
We review two cases on which the State relies and another decision and then
compare the three decisions with other decisions. In In re Personal Restraint of
Sandoval, 189 Wash. 2d 811, 408 P.3d 675 (2018), the high court affirmed accomplice
liability for murder when Eduardo Sandoval helped plan a retaliatory attack against a
rival gang and participated in the homicidal attack as a lookout for the shooters. We note
that the State prosecuted the colleague of the shooter, not the colleagues of the dead rival
gang member who indirectly encouraged the murder by engaging in gang activity toward
Sandoval’s gang.
The State relies on State v. Parker, 60 Wash. App. 719, 806 P.2d 1241 (1991). On
the night of September 2, 1988, Robert Parker and his fiancé, Cherie Marie Keese, drove
respective cars on Interstate 405 near Bellevue. Keese followed Parker twenty to twenty-
five car lengths behind. She flashed her lights several times to get his attention and sped
to catch him. Parker knew that Keese wished to pull even. Parker told his passenger that
Keese would need to follow them to Bellevue because he did not intend to stop. Keese
increased her speed to drive tandem with Parker. Parker responded by accelerating
further in order to elude her. The two cars traveled in excess of 100 miles per hour.
22
No. 34768-1-III
State v. Jameison
Parker’s passenger asked him to slow. Keese’s passenger uttered the same request to
Keese. Eyewitnesses considered the two cars racing. As the two cars approached a third
car in the interstate’s center lane, Keese changed lanes and lost control of her car. Her
car careened through the highway’s median and struck an oncoming vehicle. The
collision killed Keese’s passenger and the driver of the oncoming car suffered permanent
and serious head injury. Parker’s car stopped without incident. The State prosecuted
Parker as an accomplice on the theory he encouraged Keese’s reckless driving. The jury
found him guilty.
This court, in State v. Parker, 60 Wash. App. 719 (1991), considered Robert Parker
to have engaged in a venture with Keese and to be an active participant in the venture.
The two engaged in a cat and mouse game. Keese testified that she would have slowed if
Parker had decreased his speed.
Robert Parker engaged in the unlawful behavior of reckless driving before the fatal
accident. Jameison engaged in no unlawful behavior before Williams fired the bullet that
killed Eduardo Villagomez. Jameison grabbed a gun that he owned legally. He stood his
ground. The law did not compel him to leave the area of the Palomino Club. He fired
only after Williams fired. Lashawn Jameison also never worked in tandem with
Anthony Williams.
The State emphasizes Black v. State, 103 Ohio St. 434, 133 N.E. 795 (1921). In
Black, Harry Black and Ward Logan, police officers, while on duty, entered a saloon.
23
No. 34768-1-III
State v. Jameison
The two officers drank whiskey and then argued with other patrons about the merits of
various firearms. A small target was placed in the rear of the saloon, and the officers and
others demonstrated the capabilities of assorted firearms by firing six or seven shots.
One of those shots missed the target or penetrated through the target, passed through the
rear of the saloon, and fatally wounded David Gerber, who walked in the busy alley at the
rear of the saloon. A jury convicted the officers of manslaughter. On appeal, the officers
asserted that the evidence did not suffice to convict them because the State failed to
present proof that a bullet fired by either killed Gerber. The court affirmed the conviction
by holding that all those who had a common purpose to participate in the shooting at the
target were equally guilty of the commission of the crime.
Lashawn Jameison lacked a common purpose with Anthony Williams. We know
who fired the shot that killed Eduardo Villagomez.
Another Washington decision on point is City of Auburn v. Hedlund, 165 Wash. 2d
645, 201 P.3d 315 (2009). As previously noted, a person is not an accomplice to a crime
if he or she is a victim of that same crime. Teresa Hedlund hosted a party where liquor
flowed. Following the party, Hedlund rode with five other passengers squashed into a
Ford Escort. Hedlund remarkably videotaped the trip. The driver was intoxicated as a
result of the party, and he drove into a concrete pillar. Hedlund was the only survivor of
the single car accident. She sustained serious injuries herself. The city of Auburn
charged her with being an accomplice to driving under the influence and reckless driving.
24
No. 34768-1-III
State v. Jameison
The State contended that Hedlund’s videotaping encouraged the driver to showboat and
drive recklessly. At the close of the City’s case in chief, the trial court dismissed the
charges because a victim may not be charged as an accomplice under RCW 9A.08.020.
The Supreme Court affirmed.
In Hedlund, the State of Washington argued before the Washington Supreme
Court that Hedlund should not be considered a victim of the driver’s crime because
Hedlund’s acts of encouragement occurred before the collision with the column. The
court rejected the argument. The exception for victims does not extend only to those
whose complicity coextended at the time of the crime. Although the court deemed
Hedlund’s conduct to be reprehensible, the court did not wish to limit the definition of the
term “victim.”
Although Anthony Williams likely wished to strike Kwame Bates, not Lashawn
Jameison, with the first bullet, one police report declared that Williams also fired the first
shot in Jameison’s direction. In that sense, Jameison was a victim of Williams’s
assaultive behavior.
If we read “encourage” too broad, the ramifications of accomplice liability could
be endless. One can analogize Lashawn Jameison’s station to the purchaser of a
controlled substance. The State could and some states have contended that the purchaser
of the substance commits not only the crime of possession of the controlled substance but
also the crime of delivery of the substance by reason of accomplice liability. By reason
25
No. 34768-1-III
State v. Jameison
of the buyer wishing to purchase the unlawful drugs, the buyer encouraged the seller to
deliver the drugs.
In Robinson v. State, 815 S.W.2d 361 (Tex. App. 1991), the State convicted
Michael Robinson of delivery of marijuana. The appellate court reversed because the
defendant purchased the marijuana from a third party. The State argued that, as
purchaser, Robinson solicited, encouraged, directed, or aided the commission of the
offense. The court noted that the victim of the crime may not be held as an accomplice
even though his conduct in a significant sense assists in the commission of the crime.
Since the buyer and the seller enter the transaction from opposite poles, they do not aid
and assist one another. Their conduct is the antithesis of one another.
We worry about other ramifications of the State’s theory of criminal liability. If
one stretches the State’s argument, Lashawn Jameison would be responsible for his own
murder, if Anthony Williams’ bullet struck him.
Let us assume a man nags at his wife. An irritated wife retrieves a gun and shoots
at her husband. The bullet misses and wounds the couple’s child. Under the State’s
theory, the husband could incur accomplice liability. The husband’s conduct encouraged
the wife to fire her gun. One may consider this example extreme, because the husband
performed no unlawful act and the wife acted irrationally. Nevertheless, Lashawn
Jameison performed no criminal act preceding Anthony Williams’ first bullet and
Williams acted irrationally.
26
No. 34768-1-III
State v. Jameison
Drive-By Shootings
On appeal, as in the trial court, the parties dispute whether the unit of prosecution
for the charge of drive-by shooting constitutes the number of shots fired by the accused
or the number of bystanders threatened by the shootings. We address a distinct question.
The controlling statute, RCW 9A.36.045(1), declares:
A person is guilty of drive-by shooting when he or she recklessly
discharges a firearm as defined in RCW 9.41.010 in a manner which creates
a substantial risk of death or serious physical injury to another person and
the discharge is either from a motor vehicle or from the immediate area of a
motor vehicle that was used to transport the shooter or the firearm, or both,
to the scene of the discharge.
(Emphasis added.) Key to this appeal is what constitutes the immediate area of the motor
vehicle that transported the shooter.
We decline to address how to gauge the unit of prosecution for the offense of
drive-by shooting. After the parties filed briefs, this court decided State v. Vasquez, 2
Wash. App. 2d 632 (2018), which requires a stated proximity between the shooter and his
vehicle for purposes of the prosecution. We directed the parties to address this recent
decision.
In State v. Vasquez, Anthony Vasquez shot and killed Juan Garcia as Garcia sat in
the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake.
For minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front
entrance. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked
27
No. 34768-1-III
State v. Jameison
on the side of the grocery, next to a fenced utility area, approximately sixty-three feet
away from the Envoy. Once the Toyota was parked, Vasquez ran from the pickup and
hid behind the utility fence for a minute. Vasquez then rushed around the corner of the
grocery, across the front-side of the Envoy, and over to the area of the front passenger
window of the Envoy. The front window was partially rolled down, exposing Garcia to
Vasquez. Vasquez shot and killed Garcia from point-blank range. Vasquez then
retreated to the Toyota and the car sped away.
On appeal, this court agreed with Anthony Vasquez that the State’s evidence did
not suffice to convict him of a drive-by shooting. RCW 9A.36.045(1) demands that the
shooter be in the “immediate area” of the vehicle that transported him. We did not
establish a concise measurement for determining the immediate area. Nevertheless, we
relied on State v. Rodgers, 146 Wash. 2d 55, 43 P.3d 1 (2002), when fashioning some
language to assist in measuring the immediate area in individual circumstances. The
legislature narrowly drew the drive-by shooting definition. Rodgers and Vasquez
employed two dictionary definitions of “immediate.” The first defined “immediate” as
“existing without intervening space or substance . . . being near at hand: not far apart or
distant.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1129 (1986); State v.
Rodgers, 146 Wash. 2d at 62; State v. Vasquez, 2 Wash. App. 2d at 636. The second defined
“immediate” as “[n]ot separated in respect to place; not separated by the intervention of
any intermediate object.” BLACK’S LAW DICTIONARY 749 (6th ed. 1990); State v.
28
No. 34768-1-III
State v. Jameison
Rodgers, 146 Wash. 2d at 62; State v. Vasquez, 2 Wash. App. 2d at 636.
Based on these dictionary definitions, we wrote, in State v. Vasquez, that the
immediate area was either inside the vehicle or from within a few feet or yards of the
vehicle. The crime of drive-by shooting contemplates a shooter who is either inside a
vehicle or within easy or immediate reach of the vehicle. Intervening obstacles disqualify
a location from being within the immediate area.
In State v. Rodgers, the Supreme Court held two blocks did not fall within the
immediate area. In State v. Vasquez, we held that a distance of sixty-three feet did not
qualify as the immediate area. When Lashawn Jameison fired his responding shots,
Jameison likely stood closer than sixty-three feet of the Toyota Camry, the car in which
he traveled to the Palomino Club. We still hold that Jameison did not stand within the
immediate area. The obstacle of an additional car and a telephone pole stood between
Jameison and the Camry. The Camry was not within his immediate reach. Jameison
stood more than a few feet or yards from the Camry.
We do not base our decision on the ground that the shooting lacked proximity in
time to when Lashawn Jameison arrived in the Toyota Camry, but we note that Jameison
had not recently ridden in the car. He had entered a club and partied in the intervening
minutes.
The State appealed the dismissal of twelve of the fourteen drive-by shooting
charges. We affirm the dismissal of those twelve charges, but lack authority to now
29
No. 34768-1-111
State v. Jameison
dismiss the remaining two charges because those charges are not before the court. We
remand for further proceedings with regard to the two charges in light of our opinion.
CONCLUSION
We affirm the trial court's dismissal of the murder and manslaughter charges and
twelve of fourteen drive-by shooting charges brought against Lashawn Jameison. We
remand for further proceedings consistent with our opinion.
WE CONCUR:
31 | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289355/ | FILED
JUNE 28, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: ) No. 35027-4-III
)
DAVID WILLIAM JACKSON, )
)
Respondent, )
) OPINION PUBLISHED
and ) IN PART
)
RHONDA LYN CLARK, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — The child relocation act (CRA), RCW 26.09.405-
.560, sets forth the procedure and standards for certain child relocation requests. One
standard gives the relocating parent a favorable presumption that relocation will be
permitted. But by its terms, the CRA applies only to relocation requests made by a person
“with whom the child resides a majority of the time.”
No. 35027-4-III
In re Marriage of Jackson & Clark
Here, substantial evidence supports the trial court’s finding that Ms. Clark, the
relocating parent, was not a person with whom the children resided a majority of the time.
In the published portion of this opinion, we affirm the trial court’s conclusion that Ms.
Clark was not entitled to a presumption that relocation would be permitted.
FACTS
Rhonda Clark and David Jackson are the parents of two young children, L.J. and
H.J. In April 2015, the parties finalized their divorce and filed their agreed parenting
plan. The agreed parenting plan designated Ms. Clark as the custodial parent,1 and
scheduled the children to reside with her a majority of the time. The parties however did
not follow the plan. Instead, the parties shared residential placement equally.
In January 2016, Ms. Clark obtained counsel and sought to change the terms of the
parenting plan. Ms. Clark’s attorney sent Mr. Jackson a proposed parenting plan. The
proposed plan generally followed the original plan, but required the parties to follow
certain procedures so as to better communicate with one another. Mr. Jackson did not
disagree with those procedures, but he marked the portion that set forth the children’s
residential schedule to reflect the shared schedule that he and Ms. Clark had. In addition,
1
Washington uses the term “custodial parent” solely for purposes of state and
federal statutes that require a designation or determination of custody. RCW 26.09.285.
2
No. 35027-4-III
In re Marriage of Jackson & Clark
he crossed out that portion of the proposed plan that listed Ms. Clark as the custodial
parent. Mr. Jackson then returned the marked proposed plan to Ms. Clark’s attorney.
Ms. Clark’s attorney then sent a revised parenting plan to Mr. Jackson.
The revised plan changed the scheduled residential time as Mr. Jackson had requested,
but still designated Ms. Clark as the custodial parent. Mr. Jackson did not want to sign
the revised draft. He knew that Ms. Clark was dating a man who lived in Nevada and was
concerned that she might move to Nevada and try to take their children with her.
In response to his concerns, Ms. Clark sent Mr. Jackson a text message assuring
him that she would not move: “Also, I want [you] to know that I am not moving to Reno.
I could easily get a [school] principal job elsewhere. But I know the kids are rooted here
with school.” Clerk’s Papers (CP) at 78-80. Ms. Clark provided Mr. Jackson a further
assurance in a later text, “You can always go through with signing. We have 50/50.”
CP at 117. Mr. Jackson, along with Ms. Clark and her attorney, signed the revised
parenting plan. The parties presented the revised parenting plan to the county superior
court where they had filed their agreed parenting plan, but that court would not file the
revised plan.
3
No. 35027-4-III
In re Marriage of Jackson & Clark
In May 2016, the parties attempted to mediate various parenting plan issues. The
mediation was unsuccessful. On June 9, 2016, Ms. Clark received an offer to become a
vice principal in Reno, Nevada. The vice principal job was a significant promotion for
her, with more scheduled days, an increase in pay, and with an opportunity for further
advancement.
On June 17, 2016, the parties transferred venue to the county superior court of
their residence, Spokane County, and registered their original parenting plan with that
court. However, Ms. Clark did not file the signed revised plan.
On June 27, 2016, Ms. Clark filed and served on Mr. Jackson a notice of intent to
relocate her children to Nevada. On July 26, 2016, a court commissioner held a hearing
for temporary orders. The commissioner found that Ms. Clark’s request to relocate the
children would likely not be granted, and denied Ms. Clark’s request for her children to
relocate prior to a fact-finding hearing.
On August 9, 2016, Ms. Clark accepted the job in Nevada. Ms. Clark moved to
revise the commissioner’s ruling, and the trial court denied her motion. The trial court
then scheduled a fact-finding hearing to begin October 24, 2016.
At the hearing, both parties presented witnesses who provided testimony both
supporting and opposing relocation. During the hearing, Mr. Jackson testified that he and
4
No. 35027-4-III
In re Marriage of Jackson & Clark
Ms. Clark shared residential time with their children equally. Mr. Jackson also cross-
examined Ms. Clark with her prior deposition testimony. In that testimony, Ms. Clark
had admitted that the parenting schedule set forth in the revised and signed parenting plan
was the schedule that she and Mr. Jackson had generally followed since the divorce. In
addition, several of her text messages were admitted, including the text message where
she described the revised parenting plan as “50/50.” CP at 117.
At the conclusion of the fact-finding hearing, the trial court advised the parties that
it wished to review the trial transcript and scheduled its oral ruling for mid-November. In
its November ruling, the trial court meticulously set forth the background of the case, the
legal framework, and explained its resolution of the conflicting evidence. The trial court
found that the parties shared residential time with the children equally. The trial court
found Mr. Jackson’s testimony on this point credible, and noted it was consistent with
other evidence, such as the lack of a child support transfer payment, and Ms. Clark’s
various admissions. Based on its finding that the children did not reside with Ms. Clark a
majority of the time, the trial court concluded that Ms. Clark was not entitled to the
CRA’s presumption that relocation would be permitted.
The trial court then addressed whether the children would be permitted to relocate
with Ms. Clark to Nevada. In addressing this issue, the trial court discussed the 11 factors
5
No. 35027-4-III
In re Marriage of Jackson & Clark
set forth in RCW 26.09.520. After discussing each factor, the trial court determined that
the detrimental effect of the relocation would outweigh the benefit of the change to the
children and Ms. Clark. The trial court also determined that the factors against relocating
the children weighed so heavy that it would have denied relocation even had Ms. Clark
been entitled to the CRA’s presumption. The trial court later entered an order consistent
with its oral ruling, together with supporting findings and conclusions.
Ms. Clark appealed.
ANALYSIS
A. APPLICABILITY OF THE CRA AND ITS PRESUMPTION
This court reviews a trial court’s relocation decision for abuse of discretion. In re
Marriage of Horner, 151 Wash. 2d 884, 893, 93 P.3d 124 (2004). A trial court abuses its
discretion when it makes a manifestly unreasonable decision or bases its decision on
untenable grounds or reasons. State v. Sisouvanh, 175 Wash. 2d 607, 623, 290 P.3d 942
(2012). This can occur when a trial court applies an incorrect legal standard, substantial
evidence does not support its findings, or the findings do not meet the requirements of the
correct standard. Horner, 151 Wash. 2d at 894.
Ms. Clark contends that the trial court abused its discretion by applying the wrong
legal standard. She contends that the parenting plan’s designation of her as the custodial
6
No. 35027-4-III
In re Marriage of Jackson & Clark
parent entitles her to a presumption that relocation will be permitted. She relies on In re
Marriage of Fahey, 164 Wash. App. 42, 262 P.3d 128 (2011). For the reasons explained
below, we agree with the dissent in Fahey that the CRA and its presumption apply only to
“a person with whom a child resides a majority of the time.” RCW 26.09.430.
1. Legal principles
The CRA is codified at RCW 26.09.405-.560. The CRA sets forth notice
requirements and standards applicable to certain child relocation requests.
RCW 26.09.430 provides: “[A] person with whom the child resides a majority of the time
shall notify every other person entitled to residential time or visitation with the child
under a court order if the person intends to relocate.” If an interested person objects, the
trial court must then conduct a fact-finding hearing. RCW 26.09.520.
The CRA provides “a rebuttable presumption that the intended relocation of the
child will be permitted.” Id. At the fact-finding hearing, the objecting person may rebut
this presumption by showing that “the detrimental effect of the relocation outweighs the
benefit of the change to the child and the relocating person, based upon [10]2 factors.” Id.
The CRA permits the relocating parent’s interest to be considered because it recognizes
2
The 11th factor does not apply at the fact-finding hearing.
7
No. 35027-4-III
In re Marriage of Jackson & Clark
the presumption that a fit parent acts in the best interest of his or her child. Horner, 151
Wash. 2d at 895.
2. We disapprove of Fahey
In Fahey, the parties’ parenting plan listed the mother as the custodial parent and
scheduled the children to live with her a majority of the time. Fahey, 164 Wash. App. at 47.
Seven years after the plan was entered, the mother provided notice to the father of her
intent to have the children relocate with her to Omak, Washington. Id. at 47-48. The
father, who lived in Edmonds, Washington, objected. Id. At the fact-finding hearing, the
father presented evidence that despite the terms of the parenting plan, the children
actually spent more time with him. Id. at 49-51. The majority noted that “the plain
language of the child relocation statutes” is triggered by the relocation of a person “‘with
whom the child resides a majority of the time.’” Id. at 58 (quoting RCW 26.09.430).
Inexplicably, the majority then held that whether a child resides with the relocating person
a majority of the time is answered by the parenting plan’s designation of custodial parent,
not where the children actually reside. Id. at 59-60.
Judge Armstrong issued a strong dissent. Quoting RCW 26.09.430, he emphasized
that the relocation statutes and the presumption permitting relocation applied only to a
person “‘with whom [a] child resides a majority of the time.’” Id. at 70 (Armstrong, J.,
8
No. 35027-4-III
In re Marriage of Jackson & Clark
dissenting) (alteration in original). He noted that whether a parent has a child a majority
of the time is a factual question, and acknowledged that the designation of custodial
parent is a consideration in answering that question. Id. at 71.
[But] no case has held that the wording of a parenting plan controls
over the reality of where the children reside a majority of the time. And the
statute is clear that the presumption works in favor of the parent “with
whom the child resides a majority of the time,” not the parent with whom
the child is scheduled to reside a majority of the time. If the trial court and
the majority are correct, a parenting plan’s designation of the primary
residential parent would control even if the children actually spent 90
percent of their time with the nondesignated parent.
Id. at 71 (citation omitted).3
State v. Chapman, 140 Wash. 2d 436, 450, 998 P.2d 282 (2000) (footnotes omitted)
explains how we must determine the meaning of a statute:
To determine the meaning of a statute, courts apply the general rules
of statutory construction to ascertain and carry out the intent of the
Legislature. If the language of a statute is clear on its face, courts must give
effect to its plain meaning and should assume the Legislature means exactly
what it says. If a statue is unambiguous, its meaning must be derived from
the wording of the statute itself. A statute that is clear on its face is not
subject to judicial interpretation.
3
Because the CRA did not apply, Judge Armstrong concluded that the trial court
should have analyzed whether the existing plan should be modified under the criteria in
RCW 26.09.260. Fahey, 164 Wash. App. at 73 (Armstrong, J., dissenting); see In re
Marriage of Coy, 160 Wash. App. 797, 804, 248 P.3d 1101 (2011) (“After a trial court
enters a final parenting plan, and neither party appeals it, the plan can be modified only
under RCW 26.09.260.”).
9
No. 35027-4-III
In re Marriage of Jackson & Clark
The CRA is clear. The CRA and its presumption permitting relocation apply only
when the person relocating is “a person with whom the child resides a majority of the
time.” RCW 26.09.430. This is consistent with the notion that a fit parent is presumed to
be acting in the best interest of his or her child: In situations where residential placement
is shared, both parents are presumptively fit, and neither would be entitled to a favorable
presumption. See In re Marriage of Worthley, 198 Wash. App. 419, 431, 393 P.3d 859
(2017) (Where “both parents are equally entrusted to act in the child’s best interests,” the
CRA presumption in favor of the relocating parent is inapplicable.).
We agree with Judge Armstrong. The CRA and the presumption permitting
relocation apply only to a person with whom the child resides a majority of the time. The
designation of custodial parent is a consideration in answering whether the child resides a
majority of the time with the relocating parent; but where the child resides, rather than is
scheduled to reside, is the factual question that must be answered.
3. Application of legal principles
Here, the parents had a final parenting plan in place that designated Ms. Clark as
the custodial parent with whom the children lived a majority of the time. The trial court,
however, was persuaded that the parties shared residential time with their children
equally. Although Ms. Clark assigns error to this finding, substantial evidence supports
10
No. 35027-4-III
In re Marriage of Jackson & Clark
it. Here, Mr. Jackson testified that he and Ms. Clark shared residential time equally from
the very beginning. His testimony was consistent with the lack of a child support transfer
payment, Ms. Clark’s deposition testimony in which she admitted that the revised plan
was consistent with the parenting schedule they generally followed, and Ms. Clark’s text
message describing the plan as “50/50.” We conclude that the trial court properly denied
Ms. Clark the statutory presumption permitting relocation.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Because the CRA does not apply, the trial court should have either dismissed Ms.
Clark’s CRA request or, because a fact-finding hearing had already occurred, analyzed
Ms. Clark’s request as one for a major modification of the parenting plan under
RCW 26.09.260. See Schuster v. Schuster, 90 Wash. 2d 626, 628-29, 585 P.2d 130 (1978)
(A final parenting plan may be modified only in accordance with RCW 26.09.260.).
Either way, Ms. Clark’s contentions that the trial court erred in its weighing the
RCW 26.09.520 factors are moot. But should Ms. Clark ask the trial court to analyze her
11
No. 35027-4-III
In re Marriage of Jackson & Clark
relocation request under RCW 26.09.260, the parties need to be able to know what
evidence was properly admitted or excluded at the hearing. For this reason, we address
the trial court’s contested evidentiary rulings.
B. THE TRIAL COURT’S CONTESTED EVIDENTIARY RULINGS
Ms. Clark challenges three trial court evidentiary rulings. All three involve
whether the evidence excluded or admitted consisted of offers of compromise,
inadmissible under ER 408. We review such rulings for abuse of discretion. Klotz v.
Dehkhoda, 134 Wash. App. 261, 271, 141 P.3d 67 (2006).
ER 408 provides:
In a civil case, evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept a valuable
consideration in compromising or attempting to compromise a claim which
was disputed as to either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is likewise not admissible. . . .
This rule also does not require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a witness, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
More succinctly, the rule excludes evidence of conduct or statements made in
settlement negotiations to prove liability. Klotz, 134 Wash. App. at 271. It does not
exclude settlement evidence offered for another purpose if the evidence is otherwise
12
No. 35027-4-III
In re Marriage of Jackson & Clark
admissible under the rules. Id.; see also Bulaich v. AT&T Info. Sys., 113 Wash. 2d 254, 264,
778 P.2d 1031 (1989).
1. Exclusion of Mr. Jackson’s letter
Ms. Clark contends the trial court erred by refusing to admit a letter that Mr.
Jackson sent to her around the time of mediation. The letter was entitled, “‘Jackson
. . . Modification/Mediation.’” Report of Proceedings (Oct. 24, 2016) at 60.
Ms. Clark argued for the letter’s admissibility at the hearing. She argued it was
relevant to contradict Mr. Jackson’s assertion at trial that he never proposed that one child
live in Washington while the other live in Nevada. Ms. Clark argued that she did not
receive, see, or read the letter until after the May 2016 mediation. The record does not
reflect when Mr. Jackson sent the letter to her. Mr. Jackson objected to the letter’s
admission under ER 408. The trial court sustained Mr. Jackson’s objection.
Ms. Clark did not have the letter pre-marked so as to be part of the record. For this
reason, we do not adequately know its contents. Nor did the parties clarify when Mr.
Jackson sent it. For these reasons, the record is inadequate for us to review the claimed
error. Story v. Shelter Bay Co., 52 Wash. App. 334, 345, 760 P.2d 368 (1988).
13
No. 35027-4-III
In re Marriage of Jackson & Clark
2. Admission of exhibits 26 and 25
Ms. Clark next contends the trial court erred by admitting exhibit 26, which was
the draft parenting plan sent to Mr. Jackson on which he noted his comments. She also
contends the trial court erred by admitting exhibit 25, which was the revised and signed
parenting plan. We disagree with both contentions.
a. Exhibit 26
Exhibit 26 contains the same parenting schedule and custodial parent designation
as the parties’ original parenting plan. It also shows that Mr. Jackson marked the
proposed plan to reflect the equally shared residential schedule and struck the plan’s
designation of Ms. Clark as the custodial parent.
Ms. Clark’s reiteration of the original parenting plan was not an admission of
liability. Nor were Mr. Jackson’s markings an admission of liability. Rather, Mr.
Jackson’s markings were relevant and admissible to show that his assertion the parties
equally shared residential placement was not a fabricated recent contention. We conclude
that the trial court did not abuse its discretion by admitting exhibit 26.
14
No. 35027-4-III
In re Marriage of Jackson & Clark
b. Exhibit 25
Exhibit 25 is the revised parenting plan that was signed by the parties and Ms.
Clark’s attorney. It designates Ms. Clark as the custodial parent, but also provides for an
equally shared residential schedule. The trial court admitted the revised parenting plan
over Ms. Clark’s objection.
Mr. Jackson introduced the revised and signed parenting plan to prove that the
children did not reside with Ms. Clark a majority of the time. Although this claim was
disputed at the fact-finding hearing, there is no evidence it was disputed in January 2016
when the revised parenting plan was signed. Notably, Ms. Clark admitted in her
deposition that she and Mr. Jackson generally shared residential time with their children
equally. Because this fact had not been disputed prior to the agreement’s signing, this
aspect of exhibit 25 was not a compromise or an offer of compromise.4 We conclude that
the trial court did not abuse its discretion by admitting exhibit 25.
4
Ms. Clark inadvertently concedes this point in her brief: “She sought an amended
parenting plan because Mr. Jackson’s harassing behavior escalated and he attempted to
manipulate her time with the children and she felt that there needed to be restrictions
regarding communication. . . . The purpose of the amended parenting plan . . . was to add
other restrictions.” Appellant’s Br. at 43.
15
No. 3 5027-4-III
In re Marriage ofJackson & Clark
C. ATTORNEY FEES
Mr. Jackson requests an award of attorney fees on appeal. He cites RAP 18.1 and
RCW 26.09.140. He fails to provide any argument supporting-his request. We therefore
deny it. Stiles v. Kearney, 168 Wash. App. 250, 267, 277 P.3d 9 (2012).
L& ... , | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289356/ | FILED
JUNE 28, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33910-6-III
) (consolidated with
Respondent, ) No. 33932-7-III)
)
v. )
)
ADAM S. JENNINGS, )
)
Appellant. ) UNPUBLISHED OPINION
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
JOHN WAYNE JENNINGS, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — John Jennings appeals his convictions for first degree
murder and delivery of a firearm to an ineligible person. Adam Jennings, John’s son,
appeals his convictions for first degree murder and unlawful possession of a firearm.
Both men argue that insufficient evidence supports their convictions, their right to
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
conflict-free counsel was violated, prosecutorial misconduct during closing arguments,
and cumulative error. We reverse John’s conviction for delivery of a firearm to an
ineligible person, but otherwise affirm all convictions.
FACTS
On September 2, 2013, Michael Carrigan was shot and killed while hunting in
northern Okanogan County. This appeal involves the murder trial for his death.
On November 18, 2013, the State charged John and Adam Jennings with
premeditated first degree murder, each carrying a firearm enhancement. The State also
charged John with unlawful delivery of a firearm to an ineligible person and Adam with
unlawful possession of a firearm. On November 19, 2015, Adam stipulated he was
convicted of a serious offense and thus ineligible to possess or control a firearm. The
following facts were presented at the Jennings’s joint jury trial.
1. TRIAL TESTIMONY AND VERDICT
George Stover, a family member and longtime hunting partner of Mr. Carrigan,
was first to testify. In September 2013, Mr. Stover went grouse hunting and deer scouting
in a small group: himself, Mr. Carrigan, and Mr. Carrigan’s brother. They drove six
hours to the Pontiac Ridge area in northeastern Okanogan County and stayed in a cabin
there. Mr. Stover and Mr. Carrigan went out to hunt and scout in their vehicle. Around
2
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
7:00 p.m. that evening, about one mile from their cabin, they passed by Cow Camp Road,
and Mr. Carrigan saw a grouse in a large meadow. He stopped the car, walked into the
meadow, and shot at the grouse. He fired one shot, the grouse began to fly away, and he
then fired a second shot. Mr. Stover stayed in the truck.
Almost immediately after Mr. Carrigan’s second shot, Mr. Stover heard a gunshot
from a cabin behind him. Mr. Carrigan was hit by the gunshot and fell to the ground. Mr.
Stover looked at the cabin but did not see the shooter. He stayed in the truck. Mr.
Carrigan began to get up and walk back to the truck. Another shot was fired from the
cabin. That shot also hit Mr. Carrigan. He dropped to his knees and rolled onto his back.
Mr. Stover drove away to get help, sitting as far back in his truck as possible when he
drove past the cabin. When Mr. Stover came back with law enforcement, he helped
officers find Mr. Carrigan in the meadow. Mr. Carrigan was dead.
Around 8:30 p.m., officers using a loudspeaker directed anyone in the cabin to
come out. John and Adam came out. Officers saw no evidence of any other people near
the field.
Directly after coming out of the house, and in response to law enforcement’s
questions, John told officers that he was making tea when he heard the shots and got on
3
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
the floor. He also told officers there were a number of firearms in the cabin, some of
which were locked up, and that his son had pistols by his bed.
An officer arrested Adam on an outstanding warrant for failing to appear for
driving with a suspended license. Officers took John to a motel for the night. To
preserve the scene, officers stayed on site until the next morning, until roughly 6:30 a.m.
The Jennings’s cabin, including the surrounding property, was searched on
September 3, 2013. One of the two bedrooms in the cabin was identified as Adam’s
because it contained his clothing and medication. Adam’s bedroom window had a clear
line of sight to where Mr. Carrigan’s body had been found, 134 yards away. Additionally,
officers found binoculars on a plastic barrel by Adam’s open bedroom window and a box
of CCI Stinger .22 ammunition nearby. The box of ammunition had both modified and
unmodified bullets. A number of speed loaders were also found in Adam’s bedroom,
loaded with .22 ammunition. The base of the window had a number of marks or scrapes
on it. The marks or scrapes were consistent with a rifle or shotgun having been fired
while resting on the base of the window.
Later that day, law enforcement interviewed John at the motel. John stated that at
the time of the murder, he and Adam were inside the cabin after unloading firewood.
John said he was making tea when he heard the gunshots, and they immediately got on the
4
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
floor. He explained that it was safer on the ground because they had taken precautions to
keep people off their property; they stacked firewood as a barricade and stretched out
1,300 feet of barbed wire along one side of the property. He explained that because of the
barricades, a person from the Cow Camp Road side of their property would have to come
around the barricades and, “‘it would still leave [them] a lot of time to, you know, yell
and scream at people.’” III-B Report of Proceedings (RP) (Nov. 18, 2015) at 699. When
asked about the guns in the cabin, John told law enforcement that all the guns in the cabin
were his and that they were all registered to him, or unregistered and bought from stores.
When asked about his son’s gun preferences, John explained that “‘he carries pretty much
what I carry. It’s a .22 pistol.’” Id. at 712. John said a .22 rifle had been stolen years
earlier, and he tried to report it to the police.1 John also said that he was legally blind in
one eye—so if he uses a long gun, he needs a scope. Seven of the firearms recovered
from the cabin were registered to John but many firearms were unregistered.
On September 4, 2013, law enforcement interviewed Adam. Adam said that he
had unloaded firewood with his father and was rolling a cigarette when he heard the
gunshots. He said he then dropped to the ground and heard a vehicle drive away. He
denied that he or his father shot Mr. Carrigan.
1
An officer testified that he reviewed records and could not find any such report.
5
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
Law enforcement executed another search warrant on November 19, 2013. Arrest
warrants for John and Adam were executed the same day.
The searches revealed targets set up around the property. The targets were placed
at varying distances and heights. All targets faced the cabin, so a person standing at the
cabin would be facing the targets. John had earlier told officers that the targets had not
been used in a long time. John’s statement was inconsistent with the fresh, unweathered
holes through many of the targets. There were thousands of holes in the targets and trees
surrounding them. Many holes were indicative of shots from a .22 firearm.
During the autopsy, the medical examiner recovered a bullet near Mr. Carrigan’s
heart. The bullet was consistent with a .22 rifle bullet, specifically a CCI Stinger bullet.
The bullet was damaged, making identification of the gun that fired it more difficult.
Washington State Patrol firearm examiners tested many of the guns recovered
from the cabin, but none were conclusively the firearm that fired the fatal shot. The
results of one firearm recovered from the cabin, a .22 caliber High Standard revolver,
were inconclusive. The revolver had some similarities—for example, the revolver could
penetrate a body at 150 yards and the distance from the cabin to Mr. Carrigan’s body was
134 yards. A firearm examiner testified that the revolver could have fired the recovered
bullet.
6
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
Bonnie Blasingame-Scott testified about a conversation she had with John on
August 31, 2013, two days prior to the shooting. Ms. Blasingame-Scott worked at the
local Chesaw Mercantile. Ms. Blasingame-Scott had only met Adam and John as
customers at the store. They placed bulk orders about once per month at the mercantile.
Two days before the shooting, John and Adam came into the store. Some locals were
having a “light-hearted” conversation about the upcoming hunting season and how
hunters were a pain. IV RP (Nov. 19, 2015) at 843. Ms. Blasingame-Scott commented
that she puts ribbons around the neck of her livestock so hunters do not shoot them. John
then said, “‘If any hunters come on my property we’ll shoot them.’” Id. John did not
laugh. Adam nodded along to his father’s statement. John then pulled back his coat to
show a compact firearm under his long coat. The joking about hunters did not resume
after John’s statement.
After the five-day trial, the jury found John and Adam guilty of premeditated first
degree murder, each with a firearm enhancement. The jury also found John guilty of
unlawful delivery of a firearm to an ineligible person, and Adam guilty of unlawful
possession of a firearm.
7
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
2. CONFLICT-FREE COUNSEL
The Jennings’s claim that they were denied conflict-free counsel is based on a
purported conflict of interest between Melissa MacDougall, who represented Adam, and
Michael Prince, who assisted in John’s representation. We review what each attorney
did, and who they represented throughout the lower court proceeding.
In December 2013, Ms. MacDougall and Mr. Prince were law partners. That
month, Ms. MacDougall, Mr. Prince, and a third attorney with the firm signed a notice of
appearance on behalf of Adam. Thereafter, Mr. Prince occasionally appeared in court on
ministerial matters for Adam.
The trial court understood Mr. Prince’s limited role. During a status conference
hearing, the trial court told Adam that he was represented only by Ms. MacDougall, but
that Mr. Prince occasionally covered her cases as her law partner. After explaining this,
the trial court asked, “And so, you understand what Mr. Prince is doing today?”
RP (Dec. 15, 2014—Status Conference Re: Adam) at 71. Adam replied, “Yes, Your
Honor.” Id. Additionally, Ms. MacDougall specifically told the trial court in 2014 that
she was doing Adam’s case by herself and that Mr. Prince was not working on Adam’s
case.
8
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
On June 22, 2015, Ms. MacDougall and Mr. Prince ended their legal partnership
with a formal agreement. Ms. MacDougall continued as counsel for Adam.
In September 2015, three months after their law partnership ended, Mr. Prince
began assisting John’s attorney, Myles Johnson. That month, Mr. Prince filed a motion
for trial continuance. Prior to hearing the motion, the trial court noted, “Ms. MacDougall
represents Adam Jennings, she’s here. Mr. Prince, you represent John Jennings.” RP
(Sept. 22, 2015—Motion Hearing) at 179. During the hearing, Mr. Prince explained to
the court:
Now, I guess I let the Court know . . . obviously I have been around
. . . during the pendency of these cases. Even though my name originally
appeared with Ms. MacDougall on her case, I never put in any work on that
case, that—I was working in District Court at that time.[2] But I guess I let
the Court know that I am aware of a lot of what’s gone on in these cases
and so I feel that I could be up to speed very quickly.
Id. at 189 (emphasis added).
During trial, Ms. MacDougall represented Adam, and Mr. Johnson and Mr. Prince
were John’s attorneys. The record shows that Mr. Johnson had the lead role at trial, while
2
The record strongly implies that when Adam was arrested in September 2013,
Mr. Prince represented Adam on the district court driving while license suspended matter.
As reflected by the italicized comment, Mr. Prince was not working in district court in
September 2015. We infer from this that Mr. Prince was no longer representing Adam in
the district court matter when Mr. Prince began representing John in September 2015.
9
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
Mr. Prince had a subordinate role. Mr. Prince’s trial participation was limited to
preparing jury instructions and questioning ballistics witnesses.
ANALYSIS
On appeal, John and Adam raise five issues. We address them in the order raised
in their briefs.
1. SUFFICIENCY OF THE EVIDENCE
John challenges the sufficiency of the evidence for his conviction of delivery of a
firearm to an ineligible person. John and Adam both challenge the sufficiency of the
evidence for their convictions for premeditated first degree murder.
A defendant’s challenge to the sufficiency of the evidence requires the reviewing
court to view the evidence in the light most favorable to the State and determine “whether
any rational trier of fact could have found the elements of the charged crime beyond a
reasonable doubt.” State v. Brown, 162 Wash. 2d 422, 428, 173 P.3d 245 (2007). “A claim
of insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.” State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
“[A]ll reasonable inferences from the evidence [are] interpreted most strongly against the
defendant.” Id. “In determining the sufficiency of the evidence, circumstantial evidence
10
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
is not to be considered any less reliable than direct evidence.” State v. Delmarter, 94
Wash. 2d 634, 638, 618 P.2d 99 (1980).
Neither John nor Adam objected to the giving of any jury instruction or excepted
to the failure to give any instruction. Therefore, the court’s instructions to the jury
constitute the law of the case, and we review the sufficiency of the evidence based on the
elements contained in the to-convict instructions. State v. Hickman, 135 Wash. 2d 97, 101-
02, 954 P.2d 900 (1998).
Delivery of a firearm to an ineligible person—John
RCW 9.41.080 provides in relevant part:
No person may deliver a firearm to any person whom he or she has
reasonable cause to believe is ineligible under RCW 9.41.040 to possess a
firearm. Any person violating this section is guilty of a class C felony . . . .
(Emphasis added).
The trial court’s to-convict instruction on this count provided, in relevant part:
To convict the defendant, John Jennings, of the crime of unlawful
delivery of a firearm, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about September 2, 2013, the defendant delivered a
firearm to Adam Jennings;
(2) That the defendant had reasonable cause to believe that Adam
Jennings was ineligible to possess a firearm because he was previously
convicted in this state or elsewhere of a serious offense; and
(3) That the delivery occurred in the State of Washington.
11
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
CP (No. 33910-6-III, Adam) at 51 (emphasis added).
John primarily challenges element 1, that he “delivered” a firearm to his son.
Neither chapter 9.41 RCW nor decisional law defines “delivered” in this context. Our
objective when interpreting a statute is to determine the legislature’s intent. State v.
Ervin, 169 Wash. 2d 815, 820, 239 P.3d 354 (2010). The surest indication of such intent is
the language used by the legislature; so if the language is plain on its face, we give effect
to that plain meaning. Id. In determining the plain meaning of a provision, we look to
the statutory text, related statutory provisions, and the statutory scheme as a whole. Id.
With respect to the statutory text, the parties have offered differing definitions of
“deliver.” We note that some definitions require an actual handing over of an item, while
others are less stringent and require as little as permissive use. Because the term
“deliver” is susceptible to more than one meaning, the statutory text does not assist us in
our plain meaning analysis. With respect to related provisions or statutory scheme, there
is nothing that assists our analysis.
When there is no plain meaning of a provision, the statute is ambiguous; in that
event, we may resort to legislative history, relevant case law, and rules of statutory
construction in discerning legislative intent. Id. at 820.
12
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
With respect to legislative history, neither the parties nor we have found any that
assist in our analysis. With respect to relevant case law, the State cites cases construing
former RCW 69.50.101(f) (2013), which defines “deliver” in the context of the unlawful
delivery of controlled substances. There, the statute itself defines “delivery” as including
the “constructive transfer from one person to another.” Id. We reject the State’s
invitation to apply cases that construe former RCW 69.50.101(f). Those cases construe a
statute that explicitly includes both actual and constructive delivery; here, the statute does
not explicitly include constructive delivery.
Having exhausted these primary tools of statutory construction, we are left with
applying the rule of lenity. The rule ensures fair warning by resolving ambiguity in a
criminal statute as to apply it only to conduct clearly covered. United States v. Lanier,
520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997); State v. Bradshaw, 3 Wn.
App. 2d 187, 195, 414 P.3d 1148 (2018). When we must choose between two readings of
what conduct the legislature has made a crime, we should require, before we chose the
harsher alternative, that the legislature speak in clear and definite language. State v.
Weatherwax, 188 Wash. 2d 139, 155, 392 P.3d 1054 (2017).
Applying the rule of lenity, this author construes “deliver” narrowly to require the
actual physical delivery of a firearm. This narrow definition does not criminalize the
13
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
mere permitting of another to use one’s firearm. Had the legislature intended to
criminalize such passive conduct, it could have by saying so. It did not.
We note that circumstantial evidence is entitled to as much weight as direct
evidence. Delmarter, 94 Wash. 2d at 638. Here, John purchased numerous guns and kept
them unlocked in his cabin. Also, Adam had a key to John’s gun safe, and John admitted
that Adam used his guns. From this evidence, a reasonable trier of fact might find beyond
a reasonable doubt that John actually delivered at least one firearm to Adam at some time.
But there was no evidence, direct or circumstantial, that John actually delivered a
firearm to Adam on or about September 2, 2013. The State was required to prove beyond
a reasonable doubt this temporal component of the to-convict instruction. State v. Jensen,
125 Wash. App. 319, 325-26, 104 P.3d 717 (2005).3 For this reason, a majority of the panel
concludes that the State failed to present sufficient evidence on this element, and we
reverse John’s conviction on this particular count.
3
The dissent cites State v. Hayes, 81 Wash. App. 425, 432-33, 914 P.2d 788 (1996)
for the proposition that the State need not prove the temporal component of the jury
instruction unless the defendant raised an alibi defense at trial. Hayes does not stand for
that proposition. In Hayes, the defendant did not argue the Hickman issue on appeal, i.e.,
that the State failed to prove the temporal component of the jury instruction. Instead, the
defendant argued that the State failed to prove the temporal component in the “charging
period.” Id. at 432. That is not the issue here.
14
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
Premeditated First Degree Murder—John and Adam
John and Adam tacitly concede the State produced sufficient evidence that
someone from inside the cabin shot Mr. Carrigan on September 2, 2013. They contend
that there was insufficient evidence that either acted as a principal and there was
insufficient evidence that the other assisted or was ready to assist the principal. Their
arguments require us to review the law of criminal accomplice liability.
A person is an accomplice to a crime if “[w]ith knowledge that it will promote or
facilitate the commission of the crime, he or she . . . encourages . . . another person to
commit [the crime] or . . . [a]ids or agrees to aid such other person in planning or
committing [the crime].” RCW 9A.08.020(3). “[A] jury is not required to determine
which participant acted as a principal and which participant acted as an accomplice.” In
re Pers. Restraint of Hegney, 138 Wash. App. 511, 524, 158 P.3d 1193 (2007). Instead,
“[t]he jury need only conclude unanimously that both the principal and accomplice
participated in the crime.” Id. It does not matter if some jurors believed that the
defendant fired the fatal shot, while others believed that the defendant was simply an
accomplice. State v. Hoffman, 116 Wash. 2d 51, 104, 804 P.2d 577 (1991). This is because
“[a]ccomplice liability represents a legislative decision that one who participates in a
crime is guilty as a principal, regardless of the degree of the participation.” Id.
15
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
More particular to the situation here:
In this state when it cannot be determined which of two defendants
actually committed a crime, and which one encouraged or counseled, it is
not necessary to establish the role of each. It is sufficient if there is a
showing that each defendant was involved in the commission of the crime,
having committed at least one overt act . . . .
State v. Baylor, 17 Wash. App. 616, 618, 565 P.2d 99 (1977).
Here, the evidence was sufficient for a reasonable trier of fact to find beyond a
reasonable doubt that John or Adam was the shooter and that the other was involved in
the crime’s commission. First, the evidence sufficiently establishes beyond a reasonable
doubt that either John or Adam was the shooter. Mr. Carrigan was shot by a .22 Stinger
round similar to the .22 Stingers found in Adam’s bedroom, Adam’s bedroom window
had a clear view to where Mr. Carrigan was shot, and Mr. Carrigan was killed within
range of at least one of the .22 guns found in Adam’s bedroom.
Second, sufficient evidence permitted a reasonable jury to find that both men were
involved in the commission of the crime. The men had barricaded the cabin with
firewood, placed targets on the property to practice shooting from the cabin itself, and had
a stockpile of guns and ammunition inside the cabin. Two days before the shooting, John
told Ms. Blasingame-Scott at the mercantile, “‘If any hunters come on my property we’ll
shoot them.’” IV RP (Nov. 19, 2015) at 843 (emphasis added). In agreement, Adam
16
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
nodded as his father revealed his compact firearm to the locals. Two days later, a hunter
appeared on or near John’s property and either John or Adam shot and killed the hunter.
Because they had both prepared for the event described by John, affirmed by Adam, and
two days later performed by one of them, we conclude that the State presented sufficient
evidence for a reasonable trier of fact to find that both were involved in committing the
crime, whether as a principal or as an accomplice.
2. RIGHT TO CONFLICT-FREE COUNSEL
John and Adam argue that their attorneys, Ms. MacDougall and Mr. Prince, had
conflicts of interest that violated their Sixth Amendment to the United States Constitution
right to conflict-free counsel.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel for his defense.” This right
includes the right to the assistance of a conflict-free attorney. State v. Dhaliwal, 150
Wash. 2d 559, 566, 79 P.3d 432 (2003).
In Holloway v. Arkansas, 435 U.S. 475, 477, 98 S. Ct. 1173, 55 L. Ed. 2d 426
(1978), one defense attorney represented three codefendants. The defense attorney timely
informed the trial court of conflicts of interest requiring separate counsel, but the trial
court refused to consider appointing separate counsel. Id. The United States Supreme
17
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
Court held that state trial courts are required to investigate timely objections to multiple
representation. Id. at 490-91. In a subsequent case, Cuyler v. Sullivan, 446 U.S. 335,
346-47, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), the Supreme Court clarified that
“[a]bsent special circumstances, . . . trial courts may assume either that multiple
representation entails no conflict or that the lawyer and his clients knowingly accept such
risk of conflict as may exist.” Thus, reversal is not required if a trial court knows of a
potential conflict but fails to inquire when no objection is raised. Dhaliwal, 150 Wash. 2d at
571. The Supreme Court in Sullivan explained, “‘An attorney representing two
defendants in a criminal matter is in the best position professionally and ethically to
determine when a conflict of interest exists or will probably develop in the course of a
trial.’” Sullivan, 446 U.S. at 347 (internal quotation marks omitted) (quoting Holloway,
435 U.S. at 485).
Neither defendant advised the trial court of the purported conflict
of interest
We first must determine if anyone advised the trial court of a purported conflict of
interest between Ms. MacDougall and Mr. Prince. We note that no attorney brought such
an issue before the trial court. Both John and Adam cite a May 2015 letter written by
John to the trial court. For the benefit of the reader, we have edited the letter to correct
more than a dozen spelling errors:
18
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
I am writing to request an attorney ad litem be appointed to research
this case and offer a friend of the court brief.
I believe this is needed to ensure a fair trial if need be. I further
believe that a conflict of interest exists between the needs of myself and my
son and our court appointed attorneys. It would seem to me our attorneys
have their own agenda and are not wanting to zealously defend us.
Furthermore I believe Ms. MacDougall has only her political agenda in
mind and Mr. Blount can’t think of anything but his future personal
financial affluence.
CP (No. 33932-7-III, John) at 220.
This letter did not advise the trial court of a purported conflict of interest between
Ms. MacDougall and Mr. Prince. The letter instead advised the trial court of a purported
conflict of interest between Ms. MacDougall and John’s former attorney, Nicholas
Blount.
No showing that counsel had a conflict that adversely impacted
performance
When a defendant fails to advise the trial court of a purported conflict of interest, a
defendant is not entitled to relief unless the defendant can show that counsel had a
conflict that adversely affected counsel’s performance. Dhaliwal, 150 Wash. 2d at 569.
Here, Mr. Prince did not participate in John’s defense until September 2015. By
that time, he and Ms. MacDougall no longer were law partners, and his district court
representation of Adam had concluded. Mr. Prince’s participation in John’s felony
19
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
defense was very limited. From September 2015 through trial, Mr. Prince represented
John. But Mr. Prince’s role was secondary to John’s primary counsel, Mr. Johnson.
The Jennings argue that Mr. Prince likely had a role in the decision to pursue a
unified defense rather than having one defendant point to the other as the principal. Their
argument belies the fact that Mr. Prince’s involvement in Adam’s defense was very
minimal and his later involvement with John’s defense was secondary, assisting John’s
primary counsel. There is no evidence, apart from pure speculation, that Mr. Prince
played a role in deciding defense strategy. Rather, primary counsel for each defendant,
Ms. MacDougall and Mr. Johnson, likely decided defense strategy.
In his reply brief, John argues for the first time that Mr. Prince was precluded by
RPC 1.9 from representing him. RPC 1.9 sets forth an attorney’s duties to a former
client. First, we will not consider an argument raised for the first time in a reply brief.
FPA Crescent Assocs., LLC v. Jamie’s, LLC, 190 Wash. App. 666, 679, 360 P.3d 934
(2015). Second, John has no standing to assert a purported violation of the RPC, which
concerns duties to Adam, a former client. Foley-Ciccantelli v. Bishop’s Grove Condo.
Ass’n, 2011 WI 36, 333 Wis. 2d 402, 438, 797 N.W.2d 789.
20
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
3. PROSECUTORIAL MISCONDUCT CLAIM
Adam and John argue that the prosecutor made various statements during closing
arguments that constitute sufficient misconduct to warrant a new trial.
To succeed on their prosecutorial misconduct claims, Adam and John have the
burden to establish the prosecutor’s conduct was improper and prejudicial. In re Pers.
Restraint of Sandoval, 189 Wash. 2d 811, 821, 408 P.3d 675 (2018). “To be prejudicial, a
substantial likelihood must exist that the misconduct affected the jury’s verdict.” State v.
Davis, 175 Wash. 2d 287, 331, 290 P.3d 43 (2012).
Additionally, in closing argument, a prosecutor “has wide latitude to argue
reasonable inferences from the evidence.” State v. Thorgerson, 172 Wash. 2d 438, 448, 258
P.3d 43 (2011). However, a prosecutor may not “comment on the lack of defense
evidence because the defendant has no duty to present evidence [and] the State bears the
whole burden of proving each element of the case beyond a reasonable doubt.” State v.
Cleveland, 58 Wash. App. 634, 647, 794 P.2d 546 (1990).
First claim of misconduct: referring to John and Adam jointly
John complains that the prosecutor, during closing, often referred to Adam and
him collectively, rather than individually, thus confusing the jury on whether sufficient
evidence was presented to convict either.
21
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
The State charged both John and Adam as principal or accomplice for the murder
of Mr. Carrigan. The State’s references to “they” or “them” was consistent with the
State’s theory and argument that both participated and were involved in the murder. The
prosecutor had wide latitude to make that argument. The argument is also consistent with
the Washington rule that the jury does not have to decide which of two codefendants
pulled the trigger; only that both were involved in the crime. Hegney, 138 Wash. App. at
524.
As discussed above, there was substantial evidence that both John and Adam
participated in killing Mr. Carrigan, and this evidence permitted a finding of accomplice
liability. We conclude that the prosecutor’s arguments were based on the evidence and
not improper. Similarly, the prosecutor was not required to argue which defendant, John
or Adam, fired the lethal shot.
Second claim of misconduct: speculation about missing gun
John and Adam argue that the prosecutor committed misconduct by arguing that
they hid the murder weapon before law enforcement arrived. They assert that the
prosecutor’s argument was not based on the evidence and violated the trial court’s order
in limine. We disagree.
22
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
There were approximately 90 minutes between when Mr. Carrigan was shot and
when law enforcement arrived at the Jennings’s cabin. During the search of the
Jennings’s cabin, law enforcement found sawed-off gun barrels, but did not find the
sawed-off shotgun bases. The prosecutor explained during motions in limine that he
hoped the jury would draw the inference that Adam and John may have hidden guns in
that 90 minutes. The trial court excluded “officer opinion or prosecutorial comments, key
word there, opinion, about the defendants hiding guns. . . . Facts yes, opinions no.” RP
(Nov. 13, 2015—Defense Motions in Limine) at 400.
At trial, the jury heard that law enforcement found sawed-off shotgun barrels but
not the bases. During closing, the prosecutor discussed this and then remarked:
The argument that, “Well, why do these other guns matter?” Well,
they matter for other counts directly. But they matter for this count, the
murder count, because in fact they show the defendants not only had
multiple weapons, and all the ammunition and everything else that went
along with that, but they also—manipulated and—got rid of some
weapons—very clearly. That’s why it matters.
VI RP (Nov. 23, 2015) at 1121 (emphasis added).
The comment “got rid of some weapons” was a permissible inference based on the
evidence presented at trial. This statement is permissible in the wide latitude given to
prosecutors to argue inferences from the evidence in closing arguments.
23
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
If the prosecutor’s argument violated the order in limine, it was incumbent on the
Jennings to object. They did not. Their failure to object precludes our review of the
purported violation of the order in limine. State v. Sullivan, 69 Wash. App. 167, 171-73,
847 P.2d 953 (1993).
Third claim of misconduct: remark implying that the defendants had an
obligation to testify and present evidence
John and Adam argue that the prosecutor made an improper remark that shifted the
burden of proof to them and impacted their constitutional right to remain silent. The
prosecutor remarked:
The defendants—had the opportunity to have witnesses presented,
have you all consider the evidence, to weigh—you have reasonable doubt
whether they committed the murder. None of which were offered
(inaudible).
VI RP (Nov. 23, 2015) at 1131 (emphasis added).
This remark was improper. In State v. Dixon, 150 Wash. App. 46, 55, 207 P.3d 459
(2009), we held that a prosecutor may not comment about a defendant’s failure to call a
witness if the comment would infringe on the defendant’s right to remain silent. Here,
the only uncalled witnesses to the shooting were the defendants. For this reason, the
remark was improper.
24
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
The remark was improper for an additional reason. The remark implied that the
defendants had an obligation to present evidence when no such obligation exists.
Cleveland, 58 Wash. App. at 647.
The Jennings did not object to the prosecutor’s improper remark. The “‘failure to
object to an improper remark constitutes a waiver of error unless the remark is so flagrant
and ill intentioned that it causes an enduring and resulting prejudice that could not have
been neutralized by an admonition to the jury.’” Thorgerson, 172 Wash. 2d at 443 (quoting
State v. Russell, 125 Wash. 2d 24, 86, 882 P.2d 747 (1994)). Thus, when a defendant did
not object below, relief can be granted only if the error was so egregious that it was
beyond cure by the trial judge. State v. Swan, 114 Wash. 2d 613, 661, 790 P.2d 610 (1990);
State v. Belgarde, 110 Wash. 2d 504, 507, 755 P.2d 174 (1988).
Here, the prosecutor did not repeat his improper remark. We find this important in
determining that the remark was not flagrant or ill-intentioned. Also, had John or Adam
objected, the trial court would have sustained the objection and could have instructed the
jury that the State had the burden of proving its case beyond a reasonable doubt, and
because of this, the Jennings had no obligation to present any witnesses or evidence. We
conclude that the prosecutor’s remark, although improper, was not sufficiently egregious
that it could not have been cured by a proper instruction.
25
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
4. CUMULATIVE ERROR CLAIM
Adam and John argue that cumulative errors require reversal of both murder
convictions. “The cumulative error doctrine applies when several trial errors occurred
and none alone warrants reversal but the combined errors effectively denied the defendant
a fair trial.” State v. Jackson, 150 Wash. App. 877, 889, 209 P.3d 553 (2009). “The
defendant bears the burden of proving an accumulation of error of sufficient magnitude
that retrial is necessary.” State v. Yarbrough, 151 Wash. App. 66, 98, 210 P.3d 1029 (2009)
(citing In re Pers. Restraint of Lord, 123 Wash. 2d 296, 332, 868 P.2d 835, 870 P.2d 964
(1994)). We have concluded that the only error relative to the murder convictions was the
prosecutor’s one improper remark during closing and that error was waived by a lack of
objection. For this reason, there is no cumulative error.
5. APPELLATE COSTS
Adam asks the panel to exercise its discretion to waive costs on appeal. In
accordance with RAP 14.2, we defer the decision of appellate costs to our court
commissioner or clerk/administrator.
26
No. 33910-6-III; No. 33932-7-III
State v. Adam Jennings; State v. John Jennings
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In a statement of additional grounds for review, Adam raises a general claim of
innocence. Because the claim contains no legal argument, his statement is insufficient for
review. RAP 10. lO(c).
CONCLUSION
We reverse John's conviction for delivery of a firearm to an ineligible person and
remand for resentencing. We otherwise affirm the convict~ons.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
1
Lawrence-B~rrey, CJ.
I CONCUR:
27
No. 33910-6-111 (consolidated w/ 33932-7-111)
SIDDOWAY, J. (dissenting in part)- Jurors found John Jennings guilty of a
violation ofRCW 9.41.080, which provides that "[n]o person may deliver a firearm to
any person whom he or she has reasonable cause to believe is ineligible under RCW
9.41.040 to possess a firearm." They were persuaded that John delivered a firearm to
Adam, whom they were informed, by stipulation, was ineligible to possess one. The
State's evidence was sufficient. I would affirm.
The State's evidence went beyond demonstrating that Adam used a firearm
belonging to his father. The State presented evidence from which jurors could conclude
beyond a reasonable doubt that Adam had his father's standing permission to use his
father's firearms whenever he wanted, and that he regularly did use them. Some of the
firearms were locked up. The State proved that a key to the safe was found in Adams' s
room both times the cabin was searched. This, and the evidence that Adam played a role
in the murder of Michael Carrigan, is substantial evidence of a violation of RCW
9.41.080 on or about the September 2, 2013 date of the murder.
The majority's author errs by applying the rule of lenity. "The rule of lenity is the
last, not the first, resort when a criminal statute must be construed." City of Seattle v.
Winebrenner, 167 Wn.2d 451,469,219 P.3d 686 (2009) (Madsen, J., concurring). "To
determine whether to apply the rule, the court must first make a 'serious investigation' of
the language of the statute and its purpose, its context, related statutes, the statutory
scheme, and legislative history. It is improper to create or assume ambiguity and then
No. 33910-6-III (consol. w/ 33932-7-III)
State v Jennings (Dissent in part)
tum to the rule of lenity to resolve it." Id. (quoting Lawrence M. Solan, Law, Language,
and Lenity, 40 WM. & MARYL. REV. 57, 115 (1998)).
In Burton v. Lehman, our Supreme Court construed the word "delivery" as used in
a different statute. It relied on "delivery's" dictionary definition as meaning"' [t]he
formal act of transferring something ... ; the giving or yielding possession or control of
something to another."' 153 Wn.2d 416,424, 103 P.3d 1230 (2005) (quoting BLACK'S
LAW DICTIONARY 461 (8th ed. 2004)). The court recognized that "the law recognizes
that delivery may be actual, constructive, or symbolic," id., even though not every
meaning of "delivery" may be reasonable in a particular context.
In many contexts, multiple meanings of "deliver" or "delivery" are recognized as
reasonable. One example is the word's use in a criminal context, the Uniform Controlled
Substances Act, chapter 69.50 RCW, which criminalizes the actual or constructive
transfer ("delivery") of controlled substances. See RCW 69.50.10 l(g). Another is the
common law of gifts, which recognizes "delivery" as an essential element of a completed
gift, but does not require proof of hand delivery. E.g., In re Marriage of Zier, 136 Wn.
App. 40, 47, 147 P.3d 624 (2006) (what constitutes "delivery" depends on the nature of
the property and the attendant circumstances). A third is the common law of insurance,
which requires delivery of a policy but not hand delivery. E.g., Frye v. Prudential Ins.
Co. ofAm., 157 Wash. 88, 90-91, 288 P. 262 (1930) ("Delivery" of an insurance policy
may be actual or constructive, with certain mailings of a policy qualifying as delivery.).
2
No. 33910-6-III (consol. w/ 33932-7-III)
State v Jennings (Dissent in part)
Before resorting to the rule of lenity, then, the issue is whether it is reasonable to construe
RCW 9 .41.080 as using "deliver" in its multiple accepted senses, and therefore
unreasonable to arbitrarily rule out one accepted meaning of the word.
In Bernethy v. Walt Failor 's, Inc., our Supreme Court described former RCW
9.41.080 (1982) as, "at a minimum, reflect[ing] a strong public policy in our state that
certain people should not be provided with dangerous weapons." 97 Wash. 2d 929, 933,
653 P.2d 280 (1982) (emphasis added). One can "provide [a person] with" dangerous
weapons by making firearms accessible and granting standing permission to use them. In
fact, John's standing permission was a particularly effective way of providing Adam with
dangerous weapons, since John did not have to be present and available to place a firearm
in Adam's hands. Given the purpose ofRCW 9.41.080, the dictionary definition of
"delivery" as "yielding possession or control ... to another" is every bit as reasonable a
construction as is "giving possession or control" in the sense of physically handing a
firearm to another.
No case law is cited nor is any principled reason offered for Adams's argument
that physically handing something to another is the "narrow" construction of "deliver"
and therefore appropriate. Pointing out that RCW 9 .41.080 does not define "deliver" as
including "constructive" delivery is not persuasive, since the word is not defined as
limited to "actual" delivery, either. Both are accepted meanings of the unmodified word
"deliver."
3
No. 33910-6-III (consol. w/ 33932-7-III)
State v Jennings (Dissent in part)
Adams' s construction of "deliver" as having only one of its accepted meanings,
but not another, is arbitrary and unreasonable. Because the meaning he proposes is
merely a possible meaning but not a reasonable one given the purpose of the statute,
RCW 9.41.080 is not ambiguous. The rul.e of lenity need not be applied. State v. McGee,
122 Wash. 2d 783, 787, 864 P.2d 912 (1993).
The majority's decision to reverse John's conviction does not depend on Adam's
construction of "deliver," however. It depends instead on the asserted absence of
evidence that John delivered a firearm to Adam "on or about September 2, 2013."
Clerk's Papers (No. 33932-7-III, John) at 140-41. In my view, because John's delivery
of a weapon was ongoing, recurring whenever Adam acted on his father's standing
permission, there was sufficient evidence that Adam acted on that permission on or about
September 2, 2013. Alternatively, it is well settled that where time is not a material
element of the charged crime, the language "on or about" is sufficient to admit proof of
the act at any time within the statute of limitations, so long as there is no defense of alibi.
State v. Hayes, 81 Wn. App, 425, 432, 914 P.2d 788 (1996). In Hayes, the "on or about"
limitation appeared not only in the charging document, but also in the instructions to the
jury. See id. at 431 n.9.
For these reasons, I would affirm John's conviction of delivery of a firearm to an
ineligible person.
1
Siddoway, J.
4 | 01-03-2023 | 06-28-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4407661/ | FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-5199
_____________________________
JAMES FRAZIER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
June 18, 2019
PER CURIAM.
This is an appeal from the summary denial of Appellant’s
successive motion for postconviction relief. We affirm the summary
denial of Appellant’s inconsistent verdict claim. However, we
reverse and remand for an evidentiary hearing on Appellant’s
newly discovered evidence claim. See Utile v. State, 235 So. 3d
1045, 1048 (Fla. 5th DCA 2018); Simpson v. State, 100 So. 3d 1258,
1260 (Fla. 4th DCA 2012); Coley v. State, 74 So. 3d 184, 185 (Fla.
2d DCA 2011).
AFFIRMED in part; REVERSED in part; and REMANDED for
further proceedings.
RAY, BILBREY, and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James Frazier, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
2 | 01-03-2023 | 06-18-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4108167/ | J-S80045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROLAND MATTHEW HROMEK JR.
Appellant No. 746 MDA 2016
Appeal from the PCRA Order April 13, 2016
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002872-2013
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 16, 2016
Appellant, Roland Matthew Hromek Jr., appeals from the April 13,
2016 order denying, as untimely, his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On August 23, 2013, Appellant entered into a negotiated guilty plea to
one count of involuntary deviate sexual intercourse with a child under the
age of thirteen.1 On November 25, 2013, he was sentenced to seven to
fifteen years’ incarceration. The Commonwealth did not request the ten year
mandatory minimum sentence. See Notes of Testimony (N. T.), 8/23/13, at
1. Appellant did not appeal from his judgment of sentence, and as a result,
____________________________________________
1
18 Pa.C.S. § 3123(b).
J-S80045-16
his sentence became final on December 26, 2013.2 See 42 Pa.C.S. §
9545(b)(3); see also Commonwealth v. Walters, 814 A.2d 253, 255-56
(Pa. Super. 2002).
On December 11, 2015, Appellant filed a PCRA petition, arguing that
his sentence was illegal under Alleyne v. United States, 133 S. Ct. 2151
(2013). Appointed counsel submitted a Turner/Finley “no merit” letter.3
The PCRA court granted counsel’s petition to withdraw and sent Appellant
notice his petition would be dismissed without a hearing. On March 13,
2016, the PCRA court dismissed Appellant’s petition as untimely.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court issued a responsive opinion, noting that
Appellant’s petition was untimely and that Appellant had not received a
mandatory minimum sentence.
Herein, Appellant presents a single question for our review, namely,
whether the trial court erred in not correcting an illegal sentence.
Appellant’s Brief at III.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
____________________________________________
2
The record indicates that Appellant filed a PCRA on December 9, 2013, but
that petition was withdrawn March 17, 2014.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
-2-
J-S80045-16
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant acknowledges that his petition is untimely, but asserts that
his claim is based upon a newly recognized constitutional right held to apply
-3-
J-S80045-16
retroactively. Appellant’s Brief at 1. According to Appellant, the sentence
imposed upon him is illegal pursuant to a newly recognized constitutional
rule, namely, that mandatory minimum statutes are facially unconstitutional
and void in their entirety. Appellant’s Brief at 1 (citing in support
Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super. 2014) (noting
that a mandatory minimum sentence imposed for offenses against infant
persons was illegal pursuant to Alleyne) and Commonwealth v. Hopkins,
117 A.3d 247 (Pa. Super. 2015) (noting that numerous provisions of the
statute were constitutionally infirm under Alleyne and were not severable)).
However, Appellant’s reliance on Wolfe and Hopkins is misplaced.
Appellant has not received a mandatory minimum sentence and, as such,
Alleyne is not implicated.
Even if Appellant had received a mandatory minimum sentence, the
Pennsylvania Supreme Court has determined that the rule announced in
Alleyne was neither a substantive nor a “watershed” procedural rule and,
therefore, did not apply retroactively to cases pending on collateral review.
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), see also
Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015)
(same).
Further, Hopkins did not announce a new rule that has been held to
apply retroactively. See Commonwealth v. Whitehawk, 146 A.3d 266,
-4-
J-S80045-16
271 (Pa. Super. 2016) (noting that Hopkins only assessed the validity of 18
Pa.C.S. § 6317 under Alleyne).
Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claim and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
-5- | 01-03-2023 | 12-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4289045/ | [Cite as Village of Evendale v. Lindsey, 2018-Ohio-2311.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
VILLAGE OF EVENDALE, OHIO, : APPEAL NO. C-170455
TRIAL NO. 17CRB-9976
Plaintiff-Appellant, :
vs. : O P I N I O N.
STACIA LINDSEY, :
Defendant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 15, 2018
Sandra R. Kelly-Schilling, Prosecutor for the Village of Evendale, for Plaintiff-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} Plaintiff-appellant the Village of Evendale, Ohio, (the “Village”)
appeals the trial court’s judgment dismissing the Village’s complaint against
defendant Stacia Lindsey. Because the record does not contain a certification from
the mayor’s court, the municipal court lacked jurisdiction. Therefore, we reverse the
trial court’s judgment and remand the matter to the mayor’s court.
{¶2} This action began in the Village’s mayor’s court. When Lindsey filed a
jury demand, the Village purported to transfer this case to Hamilton County
Municipal Court. The municipal court held a pretrial hearing in which it raised, sua
sponte, the issue of Lindsey’s speedy-trial rights. The trial court held a hearing on its
own motion to dismiss, and determined that Lindsey had not been tried in mayor’s
court within the statutorily-prescribed 30-day period. See R.C. 2945.71(A). As a
result, the trial court dismissed the case. The Village appeals the dismissal of its
complaint. See R.C. 2945.67(A).
Jurisdiction in Cases Transferred from Mayor’s Court
{¶3} In its first assignment of error, the Village challenges the trial court’s
judgment dismissing its complaint on speedy-trial grounds. The Village contends
that the instant case was transferred to municipal court from mayor’s court when
Lindsey requested a jury trial, because a mayor’s court is not a court of record. See
Greenhills v. Miller, 20 Ohio App.2d 313, 253 N.E.2d 311 (1st Dist.1969). R.C.
1905.032 applies to cases transferred from mayor’s court to municipal court, county
court, or a court of common pleas. R.C. 1905.032(B)(1) states that upon the transfer
of a case by a mayor, “[t]he mayor shall certify all papers filed in the case, together
with a transcript of all proceedings, accrued costs to date, and the recognizance
2
OHIO FIRST DISTRICT COURT OF APPEALS
given, to the court to which the case is transferred.” Furthermore, the Ohio Supreme
Court promulgates rules governing mayor’s courts—the Mayor’s Court Education
and Procedure Rules. See Office of Montgomery Cty. Pub. Defender v. Rosencrans,
111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 2. May.Ed.R. 12(D) provides
that “[t]he mayor shall make a judgment or journal entry with regard to each case of
which the mayor disposes. The entry shall indicate a finding of guilt, innocence, or
dismissal without a finding, the disposition of the case, and other required
information. The entry shall be signed by the mayor and journalized on the record.”
{¶4} Applying R.C. 1905.032(B)(1) and May.Ed.R. 12(D), the Eighth
Appellate District held that the municipal court lacked jurisdiction over a case
transferred from mayor’s court where the mayor failed to sign a transfer entry or
attest to the date of transfer. See Olmsted Falls v. O’Brien, 8th Dist. Cuyahoga No.
84926, 2005-Ohio-1317. The appellate court noted the particular importance of the
certification requirement in criminal matters transferred to municipal court, because
the Ohio Supreme Court has held that a transfer of a case pursuant to R.C. 1905.032
is a “removal” within the meaning of the speedy-trial statute, R.C. 2945.72(F), and
thus the speedy-trial clock is tolled from the date of arrest or summons to the date
the mayor’s court certifies the case to the municipal court. Id. at ¶ 2, citing
Brecksville v. Cook, 75 Ohio St.3d 53, 661 N.E.2d 706 (1996), syllabus.
{¶5} This court has not discussed the effect of a mayor’s failure to comply
with R.C. 1905.032(B)(1) on the jurisdiction of a trial court, although this court has
held that a mayor’s failure to comply with May.Ed.R. 12(D) did not affect the
jurisdiction of a trial court in an appeal from mayor’s court, because jurisdiction in
an appeal from mayor’s court is conferred upon the filing of a notice of appeal under
3
OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 1905.23. See Blue Ash v. Hensley, 2014-Ohio-3428, 17 N.E.3d 1180 (1st Dist.).
In a transfer from mayor’s court under R.C. 1905.032, a party is not required to file a
notice of appeal, therefore the pertinent jurisdictional document under R.C.
1905.032(B)(1) is the mayor’s court certification. Thus, we follow the Eighth District,
and hold that a trial court lacks jurisdiction over a case transferred from mayor’s
court where the mayor fails to certify the case upon transfer as required by R.C.
1905.032(B)(1).
{¶6} In this case, although some papers purportedly from the Village’s
mayor’s court were filed in the trial court and appear in the transcript of the docket,
the record lacks a certification from the mayor transferring the case. Therefore,
because the Village’s mayor’s court never certified the case to the municipal court,
the municipal court lacked jurisdiction in this case. See Olmsted Falls, 8th Dist.
Cuyahoga No. 84926, 2005-Ohio-1317, at ¶ 7.
{¶7} In conclusion, we sustain the Village’s first assignment of error. The
Village’s second assignment of error, which asserts that the trial court lacked
authority to sua sponte dismiss the case, is rendered moot. See App.R. 12(A)(1)(c).
The trial court’s judgment is reversed and the matter is remanded to the mayor’s
court with instructions to comply with R.C. 1905.032(B)(1).
Judgment accordingly.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
4 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4407673/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ROBERT SMITH, : No. 61 MAP 2018
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 420 MD
: 2018 dated September 27, 2018
v. :
:
:
ATTORNEY GENERAL, JOSH SHAPIRO, :
HEAD OF DEPARTMENT OF :
CORRECTIONS, JOHN WETZEL, AND :
SUPERINTENDENT OF SCI-BENNER, :
ROBERT MARSH, :
:
Appellees :
ORDER
PER CURIAM DECIDED: June 18, 2019
AND NOW, this 18th day of June, 2019, the Order of the Commonwealth Court is
REVERSED. Bundy v. Wetzel, 184 A.3d 551 (Pa. 2018) (holding that, to satisfy an
inmate’s right to due process, before the Department of Corrections (“DOC”) can begin
deducting funds from an inmate’s prison account for purposes of Act 84, it must inform
the inmate of: (1) his financial liability; (2) the DOC’s policy for deducting funds from
prisoner accounts, and (3) his right to object to the application of the DOC’s policy to his
account); Petition to Stop 20% Deduction for Court Costs, Fines and Restitution from Gifts
from Family and Friends, and the Return of Money Pursuant to 42 Pa.C.S.A. § 8127,
6/6/2018, at ¶2 (averring that, upon Appellant’s confinement, the DOC began deducting
funds from Appellant’s prison account “without notification”). The matter is REMANDED
for further proceedings. | 01-03-2023 | 06-18-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4407677/ | Case: 18-12645 Date Filed: 06/18/2019 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12645
Non-Argument Calendar
________________________
D.C. Docket No. 0:17-cv-60597-WPD
RAYMOND A. HANNA EL,
Plaintiff-Appellant,
versus
STATE OF FLORIDA,
BROWARD COUNTY MUNICIPALITIES,
CITY OF LAUDERHILL,
CARLOS REBELLO,
MICHAEL MAUER, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 18, 2019)
Case: 18-12645 Date Filed: 06/18/2019 Page: 2 of 2
Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
Raymond Hanna El, proceeding pro se and in forma pauperis in this
42 U.S.C.§ 1983 suit, appeals the district court’s denial of his “Writ to Amend the
Record,” which the district court construed as a motion to amend. We review only
for an abuse of discretion a district court’s denial of a motion to amend. Stevens v.
Gay, 864 F.2d 113, 116 (11th Cir. 1989). The district court denied Hanna El’s
motion to amend because the case was closed — and had been for over a year by
the time Hanna El filed his motion. That was not an abuse of discretion. See id.
(“Undue delay or failure properly to amend a complaint after repeated opportunity
to do so . . . constitutes grounds to deny a motion to amend.”).
Hanna El also appeals the denial of his “Writ of Error,” which the district
court construed as a motion for reconsideration. We review only for abuse of
discretion the denial of a motion for reconsideration. Richardson v. Johnson, 598
F.3d 734, 740 (11th Cir. 2010) (per curiam). Hanna El’s motion appears to have
been an effort to relitigate the district court’s prior rulings. Because “[a] motion
for reconsideration cannot be used to relitigate old matters,” id. (quotation marks
omitted), the district court did not abuse its discretion by denying Hanna El’s
motion.
AFFIRMED.
2 | 01-03-2023 | 06-18-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4142491/ | OFFICE OF ‘ME A-I-I-ORNEY GENERAL OF TEXAS
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ATTOF&%Y GENERAL OF THCAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124980/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 9, 2016
The Honorable J.D. Lambright Opinion No. KP-0084
Montgomery County Attorney
501 North Thompson, Suite 300 Re: Questions related to an emergency
Conroe, Texas 77301 services district's sales and use tax election that
failed to exclude territory where the sales tax
was already capped at two percent
(RQ-0070-KP)
Dear Mr. Lambright:
On behalf of the Montgomery County Emergency Services District #7 ("ESD #7"), you
ask several questions about a recent sales tax election. 1 You explain ·that the Board of the
Montgomery County Emergency Services District # 11 ("ESD # 11 ") called for an election on
May 9, 2015, to consider the adoption of a local sales and use tax in the amount of one-half percent.
See Request Letter at 1. You state that in accordance with Health and Safety Code subsection
775.075l(c-l), the election order excluded the cities of Splendora and Patton Village where the
sales and use tax was already capped at two percent. See id. You tell us that ESD #11 failed to
recognize that additional territory should have been excluded from the territory described jn the
election order due to the two percent sales and use tax rate cap. See id. at 1-2 (stating that the East
Montgomery County Improvement District ("EMCID"), Economic Development Zone No. 4
("EDZ #4"), was also located in ESD #11 territory and had a sales and use tax that, when combined
with another improvement district, resulted in a two percent tax rate). Thus, the voters' passage of
the ESD #11 tax proposition resulted in a small portion of territory that overlapped with EDZ #4
territory that, when combined, caused the tax rate to exceed the local two percent cap. See id.
You also explain that, concurrently with the sales tax election, the voters of ESD #7 and
ESD #11 voted to consolidate the two districts with the consolidated district retaining the name of
ESD #7. See id. at 2. You indicate that the new consolidated ESD #7 notified the Comptroller of
the results of the tax election and was told that the Comptroller "would be unable to implement
the sales tax increase for the entire territory because of the EDZ #4 local sales tax." Id. You state
1
See Letter from Honorable J.D. Lambright, Montgomery Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1, 3 (Nov. 9, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable J.D. Lambright - Page 2 (KP-0084)
that the EMCID Board offered to pass a resolution supporting the tax increase and to take legal
steps necessary to ensure application of the sales and use tax. See id. You tell us that the
Comptroller's Office has expressed the opinion that no action by the
EMCID board relating to the EDZ #4 sales tax, even if applied
retroactively, would contradict the ... Comptroller's opinion that
the ESD # 11 election included a territory that exceeded the
statutorily capped 2% and therefore the sales and use tax cannot be
instituted anywhere within the district.
Id. Finally, you inform us that the EDZ #4 "currently has no organizations or businesses within
its boundaries that are registered, collecting, or submitting sales tax revenue." Id.
In this context you ask our opinion as to the following:
1) Absent any participation by the EM CID board to withdraw its
right to local sales and use tax collections in the EDZ #4 that was
capped at 2%, may the ESD #7 impose, and should the Texas
Comptroller recognize, the additional 1/2% sales tax in all areas
where the EDZ #4 sales tax does not overlap;
2) Are there any mechanisms that would permit the EMCID to
retroactively withdraw its right to sales and use tax collections
in the EDZ #4 ensuring no part of the district exceeds the 2%
cap, thereby allowing the Texas Comptroller to recognize the
new 1/2% sales tax; and
3) Since the EDZ #4 currently has no organizations or businesses
within its boundaries that are registered, collecting, or
submitting sales tax revenue to the Texas Comptroller, are there
any other avenues statutorily available to retroactively exclude
EDZ #4 from the election held May 9, 2015?
Id. at3.
Health and Safety Code section 775.0751 governs an emergency services district's
imposition of a sales and use tax. See TEX. HEALTH & SAFETY CODE § 775.0751(a)-(d). It
authorizes an emergency services district to, after an election, "adopt a sales and use tax" at
specified rates. Id. § 775.0751(a); see id. § 775.075l(b) (providing that chapter 323 of the Tax
Code applies to the "application, collection, and administration of the tax imposed" under section
775.0751); see also TEX. TAX CODE§§ 323.001-.510. Section 775.0751 expressly precludes an
emergency services district from adopting a tax or an increase of the tax rate "if as a result of the
adoption of the tax or the tax increase the combined rate of all sales and use taxes imposed by the
district and other political subdivisions of this state having territory in the district would exceed
two percent at any location in the district." TEX. HEALTH & SAFETY CODE§ 775.0751 (c) (emphasis
The Honorable J.D. Lambright - Page 3 (KP-0084)
added). The sole exception to the limitation in subsection 775.0751(c) is where, among other
things, the board
excludes from the election and the applicability of any proposed
sales and use tax any territory in the district where the sales and use
tax is then at two percent[.]
Id. § 775.0751(c-1)(1). Yet, you tell us that the territory in which the ESD #11 tax election was
conducted included, albeit in error, territory that resulted in a combined sales and use tax rate in
excess of the two percent statutory cap. Request Letter at 2; see also Request Letter, Exhibit A
(attaching election order excluding only the City of Splendora and the City of Patton Village) (on
file with the Op. Comm.); see also TEX. HEALTH & SAFETY CODE § 775.0751(c-l) (requiring
exclusion of "any" territory where rate would exceed the cap). Once the election has been
conducted, no mechanism exists in subsections 775.0751(c) or (c-1) to exclude the territory in
which the rate is excessive.
Under Tax Code chapter 323, the Comptroller "shall administer, collect and enforce any
tax imposed" under chapter 323. TEX. TAX CODE§§ 323.301 (granting authority over sales and
use taxes imposed by a county), 323.lOl(f) (providing that chapter 323 governs the "application,
collection, and administration of a sales and use tax imposed under Chapter ... 775, Health and
Safety Code"). This is likely a mandatory duty. See TEX. Gov'T CODE § 311.016(2) ("'Shall'
imposes a duty."). Yet, nothing in chapter 323 or chapter 775 authorizes adjusting, retroactively
or otherwise, the boundaries of a territory voting for a tax increase as set out in an entity's election
order. See generally City of McAllen v. Garza, 869 S.W.2d 558, 560 (Tex. App.-Corpus Christi
1993, pet. denied) (recognizing that the "election process commences upon the adoption of an
order calling an election"). And the Comptroller is without express authority in either chapter to
selectively collect the sales and use tax. Thus, a court would likely conclude that the Comptroller
is not authorized to recognize the tax increase in only the portion of the territory of the ESD #7
that does not overlap with the EDZ #4.
We are unaware of any statutory provision that would allow the EM CID to unilaterally and
retroactively withdraw its right to collect sales and use tax in the EDZ #4. Subchapter D, chapter
3846, of the Special District and Local Laws Code governs the EMCID's imposition of a sales and
use tax. See TEX. SPEC. DIST. CODE§§ 3846.151-.164; see also id. § 3846.154 (providing that
Tax Code chapter 323 in most instances governs the application, collection, and administration of
the tax). Section 3846.155 authorizes the adjustment of sales and use tax rates as between the
EMCID and a municipality or political subdivision located in the EMCID's boundaries to ensure
the tax rate does not exceed two percent, but the automatic adjustment of a rate is triggered only
where the excessive combined rate is "a result of the imposition or increase in a sales and use tax
by the [EMCID]." Id. § 3846.155(d). Given that express language, subsection 3846.155(d) cannot
be construed to trigger a rate adjustment upon the increase in a sales and use tax by a political
entity other than the EMCID. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)
(recognizing that courts look to a statute's plain language assuming that the Legislature knows
how to say what it means). Similarly, section 3846.156 authorizes the EMC ID to abolish the sales
and use tax without an election by order of its board, but it does not authorize the EM CID to do so
in only a portion of its territory. See TEX. SPEC. DIST. CODE§ 3846.156(a) (stating that the "board
The Honorable J.D~ Lambright - Page 4 (KP-0084)
... may abolish the local sales and use tax rate" (emphasis added)); see also id. § 3846.156(b)
(limiting authority to abolish the tax "while any district debt or contractual obligation remains
outstanding if any sales and use tax revenue is pledged to secure payment of the outstanding debt
or obligation"). Nor does section 3846.156 operate retroactively. See TEX. TAX CODE§ 323.102
(providing for prospective effective dates for the imposition of sales and use taxes). The EMCID
is also authorized to change its sales and use tax rate at an election under section 3846.152. See
TEX. SPEC. DIST. CODE § 3846.152(a). Accordingly, the EMCID may unilaterally and
prospectively abolish its sales and use tax rate throughout the entire district, or it may hold an
election to put the question of the abolishment of the tax or the reduction of the tax rate to the
voters. We find no statutory mechanism by which the EMCID may retroactively reduce its right
to sales and use tax collections in only the EDZ #4 portion of its territory.
You do not provide specific information about the EDZ #4 sales and use tax, but we
presume the rate was established by the voters in an election prior to the May 2015 election. See
id. § 3846.264(a) (requiring election for the imposition of a sales and use tax in the development
zone). Subchapter F of chapter 3846 governs economic development zones created by the
EMCID. See id. §§ 3846.251-.265. The subchapter provides that an economic development zone
created by the EMCID is a separate body with its own authority to impose a sales and use tax in
its territory. See id. § 3846.252; see id. § 3846.264(a)-(g). Subsection 3846.264(±) provides that
[i]f a political subdivision ... imposes a sales and use tax in the
development zone, the sales and use tax authorized by this section
is reduced as of the date the development zone authorized the sales
and use tax so that the combined total of all local sales and use taxes
imposed in the development zone does not exceed two percent.
Id. § 3846.264(±) (emphasis added). The plain language provides for the automatic reduction of
an economic development zone sales and use tax rate upon a political subdivision's "imposition"
of a sales and use tax within the development zone territory. By its plain language, the provision
applies to a political subdivision's initial imposition of a sales and use tax and not for subsequent
tax rate increases. See Leland, 257 S.W.3d at 206; cf TEX. SPEC. DIST. CODE § 3846.155(d)
(authorizing rate adjustment in the event of an "imposition or increase" of another tax rate). As it
was the ESD #11 's tax increase that caused a rate that, when combined with the EDZ #4 rate,
exceeds the statutory minimum, we cannot conclude that this provision operates to provide the
EDZ #4 a mechanism by which to adjust the rate in its territory. And we find no other mechanism
in subchapter F authorizing the EDZ #4 to exclude itself from the ESD #11 territory included
within the 2015 election despite the fact that no organizations or businesses are collecting and
submitting sales tax revenue to the Comptroller. See generally TEX. SPEC. DIST. CODE
§§ 3846.251-.265. The EDZ #4 could hold a future election to put the question of the repeal of
the sales and use tax to its voters. See id. § 3846.264(a).
The Honorable J.D. Lambright - Page 5 (KP-0084)
SUMMARY
No relevant statutory provision authorizes the Montgomery
County Emergency Services District #7, the East Montgomery
County Improvement District, or the Economic Development Zone
#4 to retroactively exclude from the May 2015 election territory
with a tax rate that, when combined with the increased tax rate from
the election, exceeds the two percent statutory cap on sales and use
tax rates. The Texas ,Comptroller is without authority to selectively
collect the sales tax in only the territory in which the combined sales
tax rate does not exceed the cap.
Any of the districts are authorized to conduct a future
election to, upon approval of its voters, abolish the sales and use tax
or change the rate of a sales and use tax.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126687/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 16 2017, 6:41 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Theron Hunter, February 16, 2017
Appellant-Defendant, Court of Appeals Case No.
69A04-1608-CR-1792
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Jeffrey L. Sharp,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
69C01-1601-F5-3
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 1 of 7
Case Summary
[1] Theron Hunter pled guilty to level 5 felony failure to register as a sex offender
with a prior conviction and was sentenced to six years executed. He now
appeals, claiming that the sentence is inappropriate in light of the nature of the
offense and his character. We affirm.
Facts and Procedural History
[2] In January 2016, the State charged Hunter with level 5 felony failure to register
as a sex offender with a prior conviction.1 The State later alleged that Hunter
was a habitual offender based on two prior convictions for class C felony child
molesting. In June 2016, Hunter agreed to plead guilty to the level 5 felony
count, in exchange for which the State agreed to dismiss the habitual offender
count. Sentencing was left to the trial court’s discretion. The court accepted
Hunter’s plea and held a sentencing hearing. In its sentencing order, the court
found Hunter’s criminal history to be a “significant aggravating factor” and
noted that the presentence investigation risk assessment score put Hunter “in
the High risk category to reoffend.” Appealed Order at 2. The court also
acknowledged Hunter’s guilty plea but noted that he had “received a substantial
benefit” with the dismissal of the habitual offender count, and therefore the
court found “that the mitigating aspect of the plea is diminished in this
1
See Ind. Code § 11-8-8-17 (sex offender who knowingly or intentionally fails to register when required under
this chapter commits level 6 felony; offense is level 5 felony if sex offender has prior unrelated conviction for
offense under this section).
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 2 of 7
context.” Id. at 3. The court found that the aggravating factors outweighed the
mitigating factors and sentenced Hunter to six years executed. Hunter now
appeals. Additional facts will be provided as necessary.
Discussion and Decision
[3] Hunter asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),
which provides that this Court “may revise a sentence authorized by statute if,
after due consideration of the trial court's decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct.
App. 2015). The principal role of appellate review is to leaven the outliers, not
to achieve the perceived correct result in each case. Id. at 973. “We consider
not only the aggravators and mitigators found by the trial court, but also any
other factors appearing in the record.” Wells v. State, 2 N.E.3d 123, 131 (Ind.
Ct. App. 2014), trans. denied. “Whether a sentence is inappropriate ultimately
turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.”
Brown v. State, 52 N.E.3d 945, 954 (Ind. Ct. App. 2016), trans. denied. The
question is not whether another sentence is more appropriate but whether the
sentence imposed is inappropriate. Helsley v. State, 43 N.E.3d 225, 228 (Ind.
2015).
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 3 of 7
[4] “The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed.” Blair v. State, 62 N.E.3d 424,
430 (Ind. Ct. App. 2016). The crime that Hunter committed is failure to
register as a sex offender with a prior conviction, which is a level 5 felony. Ind.
Code § 11-8-8-17(b). The sentencing range for a level 5 felony is one to six
years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b).
[5] In determining the appropriateness of a deviation from the advisory sentence,
one factor we consider is whether there is anything more or less egregious about
the defendant’s offense “that makes it different from the ‘typical’ offense
accounted for by the legislature when it set the advisory sentence.” Wells, 2
N.E.3d at 131. In a letter attached to the presentence investigation report,
Hunter claimed that he had registered with local authorities only two days after
the deadline,2 that he had been working a “split schedule” six or seven days a
week3 and caring for a terminally ill friend during his free time, and that the
registration date “slipped [his] mind temporarily” because he had been
“stressed and challenged at and around the time of this violation.” Appellant’s
App. Vol. 2 at 57. Hunter relies on this letter in arguing that “[t]he nature of
[his] offense is that an offender accidentally forgot his registration date and
2
The sentencing transcript indicates that Hunter was required to register every ninety days because of his
status as a sexually violent predator, which was due to the age of his niece, who was one of his victims. Tr.
at 10, 15-16.
3
According to the letter, Hunter worked from 7:00 to 10:00 a.m., 3:00 to 6:00 p.m., and 9:30 to 10:00 p.m.
Appellant’s App. at 57.
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 4 of 7
completed his requirement two days after the deadline.” Appellant’s Br. at 9.
We note that Hunter’s version of events was not submitted under oath subject
to the penalties for perjury. The trial court was not required to believe it in any
event, and the sentencing order does not indicate that it did. 4 Given Hunter’s
prior conviction for failure to register, the court may well have been skeptical of
Hunter’s claims. The nature of the offense may not be particularly egregious,
but we must also account for Hunter’s character in determining the
appropriateness of his sentence.5
[6] “When considering the character of the offender, one relevant fact is the
defendant’s criminal history. The significance of a criminal history in assessing
a defendant’s character varies based on the gravity, nature, and number of prior
offenses in relation to the current offense.” Wells, 2 N.E.3d at 131 (citation
omitted). In 1994, Hunter was convicted of class C felony child molesting. 6 He
violated his probation for that offense by committing another class C felony
4
For this reason, we are unpersuaded by Hunter’s reliance on Douglas v. State, 878 N.E.2d 873 (Ind. Ct. App.
2007), as it relates to his character. We also find Douglas unpersuasive because it involves a first offense for
failure to register.
5
The State argues that “[t]his is [Hunter’s] second charge for failing to register as a sex offender as required
by the court, which makes this crime particularly egregious.” Appellee’s Br. at 10. Without wishing to
minimize Hunter’s crime, we disagree. The legislature made a first offense punishable as a level 6 felony and
accounted for the seriousness of a second offense by elevating it to a level 5 felony. Ind. Code § 11-8-8-17. If
this were Hunter’s third offense, we might find the State’s argument more persuasive.
6
According to Hunter, this conviction triggered his obligation to register as a sex offender. Appellant’s Br. at
8. Hunter asserts that the trial court “could not use the triggering offense to enhance a sentence.” Id. (citing
Douglas, 878 N.E.2d at 881). The trial court did not rely solely on the 1994 child molesting conviction to
enhance Hunter’s sentence, and the court was well within its discretion in using Hunter’s second child
molesting conviction and probation violation to impose a sentence greater than the advisory term.
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 5 of 7
molestation, for which he was convicted in 2000. In 2013, he was convicted of
class D felony failure to register as a sex offender and also was found to be a
habitual offender. In its sentencing order, the trial court stated that “[t]he sole
purpose of the Sex and Violent [Offender] Registry is to protect the community
and keep contact with individuals who have been convicted of certain offenses”
and found Hunter’s criminal history to be “a significant aggravating factor in
this context.” Appealed Order at 2. The court also noted that the presentence
investigation risk assessment score put Hunter “in the High risk category to
reoffend.” Id.
[7] Hunter is a repeat offender in the truest sense of the phrase, having twice
committed both child molesting and failure to register as a sex offender. He
victimized some of the most vulnerable members of society and then failed to
comply with the registration requirements that are designed to protect the
public from sexual predators like him. After Hunter was convicted of his first
child molesting offense, he took advantage of the trial court’s leniency and
violated his probation by committing a second molestation. Hunter accepted
responsibility for his current offense and conserved judicial resources by
pleading guilty, but, as the trial court correctly observed, he received a
substantial benefit in return when the State agreed to dismiss the habitual
offender count. Clearly, Hunter learned nothing from his prior contacts with
the criminal justice system, and he is unable to obey the law even under close
judicial supervision. In sum, Hunter has failed to persuade us that his sentence
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 6 of 7
is inappropriate in light of the nature of the offense and his character.
Therefore, we affirm.
[8] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 69A04-1608-CR-1792 | February 16, 2017 Page 7 of 7 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126692/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 16 2017, 7:00 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Marjorie Newell
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 16, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of P.Y. and J.Y. (Minor 49A02-1609-JT-2033
Children), and Appeal from the Marion Superior
Court
The Honorable Marilyn A.
R.Y. (Mother), Moores, Judge
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v.
Trial Court Cause Nos.
49D09-1512-JT-766, -767
The Indiana Department of
Child Services,
Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 1 of 16
Crone, Judge.
Case Summary
[1] R.Y. (“Mother”) appeals the trial court’s order involuntarily terminating her
parental rights to her minor children P.Y. and J.Y. (collectively “the
Children”). We affirm.
Facts and Procedural History
[2] The Children were initially removed from Mother’s care in December 2012,
and after progress toward reunification failed, the Marion County Department
of Child Services (“DCS”) filed petitions to terminate Mother’s parental rights
to the Children on December 18, 2015. Evidentiary hearings were held on May
11 and June 20, 2016. The trial court entered its order terminating Mother’s
parental rights on August 15, 2016, and found the following relevant facts:1
1. Mother is the mother of P.Y. and J.Y., minor children
born on May 30, 2004 and August 12, 2005, respectively.
2. The Children’s father is deceased.
3. Child in Need of Services Petitions “CHINS” were filed on
the Children on December 27, 2012, under Cause Numbers
49D091212JC048952 and 49D091212JC048953, on
1
We note that the trial court entered a nunc pro tunc order on August 23, 2016, to make a correction. We
further note that trial court’s termination order refers to the parties by their full names. We use “Mother,”
“the Children,” or each child’s initials where appropriate.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 2 of 16
allegations of inappropriate sexual activities and educational
neglect.
4. The Children were involved in a previous CHINS
proceeding from April 5, 2007 to June 26, 2008 after Mother
requested the Children be removed from her care due to being
unemployed and having to prostitute.
5. The Children were ordered detained and placed outside
the home at the December 27, 2012 initial hearing.
6. Mother was appointed counsel and supervised parenting
time was ordered.
7. On February 20, 2013, Mother admitted that the Children
were in need of services “because one of the children has
reported seeing inappropriate sexual materials in the home.
The son has been looking at inappropriate material on the
internet. The daughter has been taking naked pictures of
herself, has been masturbating with markers, has
demonstrated issues with personal boundaries and has been
drawing sexual images. Therefore, the coercive intervention
of the courts is necessary.”
8. The CHINS Court adjudicated the Children to be in need
of services.
9. Disposition was held on March 8, 2013, at which time the
Children remained detained from their mother and placement
continued out of the home.
10. The Children had been removed from their mother for at
least six (6) months under a disposition decree prior to this
termination action being filed on December 18, 2015.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 3 of 16
11. The Children had been removed from the home and
placed under the care and supervision of [DCS] for at least
fifteen (15) of the most recent twenty-two (22) months prior to
the filing of this termination action.
12. A Parental Participation Order was issued for Mother to
engage in services consisting of home based services, a
parenting assessment and follow recommendations therefrom,
and completing a psychological evaluation and follow
recommendations.
13. Due to a domestic violence incident in 2014, Mother was
ordered to undergo a domestic violence assessment and
follow recommendations. She successfully completed a
twenty-six week program.
14. Mother completed a parenting assessment which
recommended home based therapy. Mother engaged in
individual and family therapy with the Children.
15. Mother was engaged with Camike Jones as a therapist
from mid-2014 until December 2015, toward gaining insight
into how her choices affect her parenting and how to
effectively communicate and interact with her children.
16. Therapist Jones felt Mother had made some progress
developing insight but there were set backs as well.
17. Mother blamed P.Y. for the involvement with [DCS]
throughout the CHINS case, and at the time of trial was still
in fear that P.Y. would “misspeak again.”
18. Therapist Jones recommended ongoing therapy in
December 2015, at the end of her referral. She also believed
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 4 of 16
that Mother would not be capable of parenting without
regular and ongoing mental health treatment, and that
medication would be important.
19. Therapist Daniel Wright, working with the family,
believed the CHINS case could not move forward without
Mother addressing her mental health issues. Mother ended
her therapy with Mr. Wright in October 2015 at which time
she was seen to have regressed.
20. Mother has mental health diagnoses of Post-Traumatic
Stress Disorder, Anxiety, Depression, and Borderline
Personality Disorder.
21. A psychological evaluation was referred for Mother
which she completed. Evaluation recommendations included
completing a medical evaluation and participat[ing] in mental
health/substance abuse dual diagnosis program.
22. Mother did start attending Eskenazi Health in late
September 2015. She missed several appointments and there
was some conflict with the provider. Mother’s last
appointment made was on January 8, 2016. She was no
longer attending Eskenazi and needed [DCS] to pay for it.
23. The Eskenazi treatment plan [] included a diagnosis of
PTSD and unspecified personality disorder evidenced by
flashbacks, is irritable, avoids places that remind her of her
trauma, isolates herself from others and has anger outbursts.
24. Mother testified she only needed to take an anxiety
medication, Cymbalta, as needed and she no longer needs it
as she is not dealing with the family case manager. Eskenazi
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 5 of 16
notes represent that Cymbalta was prescribed for Mother’s
low mood and trauma condition.
25. Mother is against taking mental health medication.
26. In 2015, parenting time became unsupervised and the
team was moving toward in-home temporary trial visitation.
Due to Mother displaying unpredictable and emotional
behavior, as well as appearing overwhelmed to be caring for
the Children, visits went back to supervised status.
27. Ben Combs was the children’s foster care treatment
coordinator. As a result of adverse behavior he received from
Mother, he became concerned for the Children’s safety when
unsupervised with their mother, and felt Mother needed
therapy to address issues.
28. Mother’s last visit with J.Y. was in December 2015. P.Y
wished to discontinue visits with her mother in July 2015.
29. The Children are in a preadoptive home. They have
blended into the foster family.
30. P.Y. wishes to be adopted.
31. J.Y. wants to be back with his mother “when she is
better.”
32. The Children remain in ongoing therapy.
33. P.Y. needs therapy to continue to address emotional
neglect, trauma, Post[-]Traumatic Stress Disorder, and
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 6 of 16
depression. She also has had past sexual maladaptive
behaviors for which she will need aftercare as she ages.
34. P.Y.’s behaviors have improved in her current placement
and her mood improved after visits with her mother were
stopped.
35. J.Y.’s original therapy helped him deal with anger and
bad behaviors such as stealing. His relationship with his sister
is stabilizing.
36. J.Y. has a more positive relationship with his mother.
There remain concerns about Mother’s ability to provide a
stable home and one that is emotionally and physically safe.
37. At the time of trial, Mother was sharing a one[-]bedroom
apartment.
38. Mother testified she was going to start employment at the
airport. Although no vouchers were offered at trial, Mother
testified that she had recently done restaurant work. Her
Eskenazi medical notes indicate she was working temporary
jobs during that time.
Appellant’s App. at 6-8. The trial court further found that the family case
manager, the guardian ad litem, and three therapists that had worked with the
family each opined that termination of Mother’s parental rights was in the
Children’s best interests.
[3] Based upon these findings of fact, the trial court concluded that: (1) there is a
reasonable probability that the conditions that resulted in the Children’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 7 of 16
removal and continued placement outside the home will not be remedied by
Mother; (2) there is a reasonable probability that the continuation of the parent-
child relationship between Mother and the Children poses a threat to the
Children’s well-being, (3) termination of the parent-child relationship between
Mother and Children is in the Children’s best interests; and (4) DCS has a
satisfactory plan for the care and treatment of the Children, which is adoption.
Accordingly, the trial court determined that DCS had proven the allegations of
the petitions to terminate parental rights by clear and convincing evidence and
therefore terminated Mother’s parental rights. This appeal ensued.
Discussion and Decision
[4] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent part:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement
outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 8 of 16
parent-child relationship poses a threat to the well-being of the
child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). DCS must prove “each and every element” by
clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);
Ind. Code § 31-37-14-2. If the trial court finds that the allegations in a petition
are true, the court shall terminate the parent-child relationship. Ind. Code § 31-
35-2-8(a).
[5] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 9 of 16
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
Section 1 – DCS presented clear and convincing evidence that
there is a reasonable probability that the conditions that led to
the Children’s removal and continued placement outside the
home will not be remedied.
[6] Mother contends that DCS failed to present clear and convincing evidence that
there is a reasonable probability that the conditions that led to the Children’s
removal and continued placement outside the home will not be remedied. 2 In
determining whether there is a reasonable probability that the conditions that
led to the Children’s removal and continued placement outside the home will
not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what
conditions led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
2
Mother also argues that DCS failed to prove that there is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the well-being of the Children. However, Indiana Code Section
31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of parental
rights, the trial court need only find that one of the three requirements of that subsection has been established
by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
2013), trans. denied. Accordingly, we will address the sufficiency of the evidence with regard to only one of
the three requirements.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 10 of 16
proceeding, taking into consideration evidence of changed conditions, and
balancing a parent’s recent improvements against “‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems
and to cooperate with those providing social services, in conjunction with
unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
[7] The Children were originally removed from the home after it was reported that
both Children had been engaging in inappropriate and maladaptive sexual
behaviors and, additionally, their school attendance was not satisfactory.
Home-based therapy was recommended to allow Mother to gain insight into
how her choices affect her parenting and also for her to learn how to effectively
communicate and interact with the Children. The record indicates that while
Mother did initially participate and made some progress in home-based
therapy, she did not significantly benefit or improve her parenting skills due to
her failure to address her largely untreated mental health issues. Mother has
been diagnosed with post-traumatic stress disorder, anxiety, depression, and
borderline personality disorder. She was referred for dialectical behavioral
therapy to address her personality disorder; however, the record indicates that
she did not complete such therapy.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 11 of 16
[8] In addition, although Mother completed a parenting assessment and
psychological evaluation, she failed to follow through with the parenting skills
recommendations or therapy recommendations for mental health treatment.
Regarding mental health treatment, she attended some appointments, missed
several others, and had conflict with her care provider. Mother has a history of
extreme volatility in her personal relationships and has consistently blamed
P.Y. for the CHINS matter rather than taking personal responsibility for the
Children’s removal and continued placement outside of her care. Indeed,
Mother continued to lack any insight during the termination proceedings, as
she maintained that it was P.Y.’s “mistake” of “misspeak[ing] in mixed
company” during a school field trip about inappropriate sexual things going on
in the home that would be the reason P.Y. “loses touch with her entire family
for the rest of her life[.]” Tr. at 154, 167.
[9] In the three and one-half years since the Children’s removal, Mother has only
been allowed unsupervised visitation for a very brief period due to safety
concerns for the Children based upon Mother’s inappropriate and unpredictable
behavior and her apparent feelings of being too overwhelmed to care for the
Children. At the time of termination, Mother continued to claim that she did
not need medication, and she admitted to not taking her prescribed medications
as recommended. Mother admitted to having been recently arrested and
charged with two felonies and four misdemeanors, charges stemming from a
romantic relationship in which she “wasn’t being respected,” and she stated
that she was currently serving an eighteen-month sentence in community
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 12 of 16
corrections. Id. at 171. In addition, at the time of the hearing, Mother admitted
to not having adequate housing for the Children. Judging Mother’s fitness at
the time of the termination proceeding, the evidence indicates that she
continues to demonstrate a habitual pattern of unwillingness to deal with her
parenting problems and mental health issues such that there is a substantial
probability of future neglect and deprivation. DCS presented clear and
convincing evidence that there exists no reasonable probability that the
conditions that led to the Children’s removal and continued placement outside
the home will be remedied.
Section 2 – DCS presented clear and convincing evidence that
termination of Mother’s parental rights is in the best interests
of the Children.
[10] Next, we address Mother’s assertion that DCS failed to present clear and
convincing evidence that termination of her parental rights is in the Children’s
best interests. In determining the best interests of a child, the trial court must
look beyond the factors identified by DCS and consider the totality of the
evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In so doing,
the trial court must subordinate the interests of the parent to those of the child.”
Id. Children have a paramount need for permanency, which our supreme court
has deemed a central consideration in determining a child’s best interests. E.M.,
4 N.E.3d at 647-48. Courts “need not wait until a child is irreversibly harmed
such that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship.” Id. at 648 (citation
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 13 of 16
omitted). We have previously determined that the testimony of the case worker
and/or guardian ad litem regarding the child’s need for permanency supports a
finding that termination is in the child’s best interests. McBride v. Monroe Cty.
Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
[11] DCS family case manager Michelle Johnson testified that she believed that
termination of Mother’s parental rights is in the Children’s best interests due to
the Children’s need for permanency. She opined that Mother’s untreated
mental health issues are the main barrier to her being able to properly parent the
Children. Johnson stated that she did not believe that additional time would
aid Mother to reunify with her Children, noting that, since the CHINS case
began in 2012, DCS had seen “no real, true progress in terms of stability and
structure that [Mother] can provide for her children.” Tr. at 107. Johnson
relayed that she felt that adoption by the Children’s current foster family is in
their best interests.
[12] Similarly, guardian ad litem Sandra Donaldson recommended that adoption is
the best option for the Children and that it would be in the Children’s best
interests if Mother’s parental rights were terminated. Donaldson stated that the
Children have been “from one place to another” over the past several years and
that now “they just need stability.” Id. at 114. Donaldson did not believe that
it would be fair to the Children to allow Mother more time to complete services
because “she had a lot of time already[.]” Id. at 115. Donaldson emphasized
the paramount importance of permanency for the Children, stating that “they
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 14 of 16
need um knowing that they’re not going to be removed … they’re not going to
be placed in a situation that they’re uncomfortable in.” Id. at 114-115.
[13] Moreover, multiple therapists that have worked with both Children expressed
their extreme concerns about Mother’s mental health and her ability to parent
the Children, and each stated that he or she supported the plan that the
Children be adopted by their current stable and nurturing foster family. While
we agree with Mother that the Children’s need for immediate permanency is
not reason enough on its own to terminate her parental rights, see In re V.A., 51
N.E.3d 1140, 1152 (Ind. 2016) (declining to find the need for permanency
enough to terminate parental rights when father had an established relationship
with his child and had taken positive steps in accordance with a parent
participation plan toward reunification), the record here is replete with evidence
indicating that despite ample opportunity over the years, Mother remains in a
state of denial and is unwilling to take the steps necessary regarding her mental
health and parenting skills to make reunification with the Children feasible.
DCS presented clear and convincing evidence that termination of Mother’s
parental rights is in the Children’s best interests.
[14] In sum, the evidence and reasonable inferences favorable to the trial court’s
judgment support the termination of Mother’s parental rights to the Children.
Mother has failed to demonstrate that the court’s termination order is clearly
erroneous, and therefore we affirm the judgment of the trial court.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 15 of 16
[15] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017 Page 16 of 16 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126637/ | PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Kelsey, and McCullough, JJ., and
Koontz, S.J.
FOREST LAKES COMMUNITY
ASSOCIATION, INC., ET AL.
OPINION BY
v. Record No. 151779 JUSTICE D. ARTHUR KELSEY
February 16, 2017
UNITED LAND CORPORATION
OF AMERICA, ET AL.
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Judge Designate
In the circuit court, two property owners’ associations (“POAs”) sued various owners and
developers of parcels in the Hollymead Town Center (“HTC”), a shopping center, claiming that
HTC’s sediment basins discharged sediment into a creek that flowed into a lake owned by the
POAs. The POAs sought damages and injunctive relief. Holding that the incursion of sediment
had been occurring for more than five years prior to the suit being filed, the circuit court
sustained pleas in bar brought by the HTC defendants asserting the five-year statute of
limitations. We affirm.
I.
“If the parties present evidence on [a] plea ore tenus, the circuit court’s factual findings
are accorded the weight of a jury finding and will not be disturbed on appeal unless they are
plainly wrong or without evidentiary support.” Hawthorne v. VanMarter, 279 Va. 566, 577, 692
S.E.2d 226, 233 (2010); see also Pike v. Hagaman, 292 Va. 209, 214, 787 S.E.2d 89, 92 (2016).
Thus, under the “governing standard of review” applicable to judges sitting as factfinders no less
than jurors, “we review factfinding with the highest degree of appellate deference.” Vasquez v.
Commonwealth, 291 Va. 232, 248, 781 S.E.2d 920, 929 (2016) (citation omitted). We thus
review the evidence in the light most favorable to the prevailing parties and accept as true any
reasonable inferences that could be drawn from the evidence before the factfinder. See
Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass’n, 289 Va. 34, 59, 768
S.E.2d 79, 91 (2014).
A.
Created in the 1960s, the Hollymead residential subdivision lies just east of Route 29 in
Albemarle County. The subdivision developer originally dug a sediment basin to support the
construction effort. The basin accumulated sediment from the residential construction site as
well as from Powell Creek, which flowed through the watershed west of Route 29 and
underneath it through a culvert to the sediment basin. The developer ultimately turned the
sediment basin into a lake, known as Lake Hollymead, and encircled it with residential lots.
In 2003, commercial developers started construction of HTC on property situated west of
Route 29 in the watershed area that included Powell Creek, the waterway that flowed into Lake
Hollymead. The County’s planning staff recommended, and the County Board approved, the
HTC development plan that authorized the construction of three sediment basins. All three were
permanently in place by fall 2004. The sediment basins complied with local and state
regulations, which require the sediment basins to retain a maximum of 60% of sediment flowing
into them and allow approximately 40% of sediment to discharge into surrounding waterways. 1
1
Albemarle County Code § 17-203(B) (2001) (current Albemarle County Code
§§ 17-402(C), -500) (requiring erosion and sediment control plans to comply with the Virginia
Erosion and Sediment Control Handbook and relevant state administrative regulations); 4 VAC
§ 50-30-40 (2004) (current 9 VAC § 25-840-40) (specifying minimum criteria, techniques, and
methods to be followed in an erosion and sediment control plan); Va. Dep’t of Envtl. Quality,
Virginia Erosion and Sediment Control Handbook § 3.14, at 78 (3d ed. 1992) (noting that
sediment basins constructed per the handbook’s specifications “are, at best, 60% effective in
trapping sediment”). The section in the county code and the relevant state administrative
regulation were authorized by former Code § 10.1-563 (2004) (current Code § 62.1-44.15:55).
2
Forest Lakes Community Association, Inc., and Hollymead Citizens Association, Inc.,
(collectively, the “POAs”) are property owners’ associations that jointly own Lake Hollymead.
Shortly after the HTC development began in 2003, the POAs and their members complained that
excessive sedimentation was flowing from the denuded areas of the new HTC site, into Powell
Creek, through a culvert, and ultimately into Lake Hollymead. The County considered, but
ultimately rejected, suggestions for more robust sediment and erosion controls on the HTC site
including, for example, water-filtration and purification systems to reduce sediment entering
Powell Creek.
In late 2004 and early 2005, members of the POAs discussed the need to take legal
action. The POAs, however, waited until 2011 to file their suit seeking damages and injunctive
relief against the developers, contractors, and owners of the HTC site (the “HTC defendants”). 2
At the time of filing, eight years had passed from the start of the HTC project, and seven years
had passed since the construction of the three HTC sediment basins. The POAs’ amended
complaint alleged that sediment from the HTC site began to enter Lake Hollymead as soon as the
topography of the HTC site was denuded and destabilized in 2003 and 2004. “After such land
clearance, the resultant runoff of sediments and silt entered Powell Creek, and thence flowed into
2
The First Amended Complaint alleges that: (i) United Land Corporation of America
was a contractor and developer of a portion of HTC and was responsible for erosion and
sediment control efforts during construction of that portion of HTC; (ii) C.W. Hurt Contractors,
LLC (now known as CEVA Contractors) was a contractor and developer of a portion of HTC
and was responsible for erosion and sediment control efforts during construction of that portion
of HTC; and (iii) Route 29 LLC; NYC Land Trust; One-Ninth Land Trust; HM Acquisition
Group, LLC; Sixty Four 616 Land Trust; S-V Associates, LLC; 1641 Edlich Drive Realty LLC;
Post Office Land Trust; The Daniel Group, Inc.; Hollymead Area C Owners Association, Inc.;
Pequa LLC; TIKI, LLC; Anthony D. and Mary Kathryn Valente; Rosewood Village of
Hollymead, LLC; Hollymead Corner, LLC; HTC Hotel LLC; and Bob Evans Farms, Inc.; are
present or former owners of various parcels within HTC that contributed to the alleged silt and
sediment discharges. See generally J.A. at 31-39.
3
Lake Hollymead.” J.A. at 59. “[A]s early as 2005,” the POAs alleged, “sediment pollution,
including visible soil banks, were already starting to form in Powell Creek and at the headwaters
of Lake Hollymead.” Id. at 63. “The runoff and subsequent deposits of silt, sediments and
pollution continue to this day, in varying amounts depending upon site conditions, weather and
the effectiveness of erosion controls at the site, with each new release of silt and sediments
constituting a new and independent trespass to the [POAs’] properties,” the POAs alleged. Id. at
59. “Such sediment releases and discharges are continuing.” Id. at 60.
The POAs asserted two common-law rights of action, trespass and nuisance. They
sought an award of compensatory and punitive damages along with an injunction abating the
ongoing sediment incursion into Lake Hollymead. The HTC defendants responded with
demurrers and pleas in bar. Each of the pleas in bar asserted that the POAs’ trespass and
nuisance claims accrued as early as 2003 and no later than 2005 and thus were barred by Code
§ 8.01-243(B), which provides that “[e]very action for injury to property . . . shall be brought
within five years after the cause of action accrues.”
B.
The circuit court conducted an ore tenus hearing on the pleas in bar. 3 After hearing
evidence for a full day, the court stated that it would take the matter under advisement and issue
a ruling after receiving briefs from the parties. Approximately seven months after the hearing,
however, counsel learned that the case had been referred to another judge. Shortly thereafter, a
recusal order informed counsel that the second judge assigned to the case had recused herself
3
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery. The party asserting a plea in bar bears the burden of proof on the issue presented.”
Hawthorne, 279 Va. at 577, 692 S.E.2d at 233 (citations omitted). None of the parties requested
that a jury be empaneled pursuant to Code § 8.01-336(B).
4
from the case, and a subsequent order reflected that it would be reassigned to yet another judge.
A retired judge sitting by designation then presided over “a new evidentiary hearing” and
required that the exhibits presented at the earlier hearing be “moved into evidence” in the new
hearing, J.A. at 414, 4 which suggested that the court was limiting itself to the record developed at
the new hearing.
At the new evidentiary hearing, the parties offered witnesses and exhibits seeking to
identify the timing, manner, quantum, and consistency of sediment discharge into Hollymead
Lake allegedly caused by the HTC sediment basins. The HTC defendants asserted that the major
sediment flow occurred during the construction process from 2003 to 2004. The discharge flow
continued, they argued, on a regular basis thereafter. By fall 2004, each of the three sediment
basins were permanently in place. Id. at 533-35, 550-51, 554-55. The County engineer
responsible for administering the water-protection ordinance testified that “there’s always some
silt and sediment that flows through the basin.” Id. at 514; see also id. at 524.
The County engineer, testifying as an expert on erosion and sediment control and
watershed protection on behalf of the HTC defendants, also stated that multiple other sites west
of Route 29 (including a mobile home park, an airport construction site, a post office, and a
church) were connected to the same watershed and “continue to contribute to the sediment load”
that ultimately made its way into Lake Hollymead. Id. at 503-04. Even so, the expert opined, all
of the discharge “was in keeping with the County’s regulations as well as the Virginia erosion
and sediment control regulations,” id. at 499, and in “full compliance” with the regulators’
expectations of the efficacy of the sediment basins, id. at 507. These “sediment basins” were
“working as they are designed to perform.” Id. at 525-26. Under these facts, the HTC
4
The POAs’ counsel agreed. J.A. at 491 (“This is a new evidentiary hearing.”).
5
defendants contended that the cause of action for property damage first accrued no later than
2004, resulting in an expired statute of limitations in 2009.
The POAs sought to present a slightly different factual scenario with significantly
different legal consequences. They acknowledged the early incursion of sediment into Lake
Hollymead during the construction time-frame, but they claimed that separate and distinct
sediment incursions occurred later, each triggering the accrual of new causes of action that began
anew the five-year statute of limitations. This thesis, however, was not supported by any
detailed evidentiary showing. The POAs’ counsel took the position that it was unnecessary “to
separate out how much silt came from who and when and where” because that “has nothing to do
with a Plea in Bar on the statute of limitations against these defendants.” Id. at 486.
The POAs’ expert witness, moreover, appeared to concede the difficulty of measuring
distinct, free-standing episodes of sediment flows when asked, “isn’t it true that there is always
silt and sediment flowing through the Hollymead Town Center sediment basin, through Powell
Creek into Lake Hollymead?” Id. at 703. The expert answered: “Sure. There’s always
sediment in every body of water.” Id. He later characterized the continuous sediment flow as
“insignificant,” id., but he never testified that there was ever any period of time in which the
sediment flow was not continuous.
In his motion to strike and closing arguments, the POAs’ counsel admitted that “from the
beginning, there’s no dispute by anybody that in 2005 and earlier Lake Hollymead received a lot
of sediment. It was muddy, discolored. Sediment was coming from HTC. That’s all been
agreed.” Id. at 723-24. Various storm events, he nonetheless argued, created an “intermittent
continuous sequence.” Id. at 599. Counsel asked rhetorically, “How much erosion will run off
from the bare soil at HTC and actually make it to the basin?” Id. at 727. “Those are all things
6
we don’t know. But what they do attribute to is a highly variable mix of discharges from these
basins.” Id. The POAs’ counsel added that any “continuous discharge” of sediment into Lake
Hollymead was not a “significant contribution” to the total amount of sediment deposited in the
Lake. Id. at 598.
In the alternative, the POAs’ counsel argued that the sediment discharges, even if
continuous, constituted a “continuing trespass,” and thus, “the statute of limitations does not run
because it’s a continuing trespass.” Id. at 603-04; see also id. at 725, 734. “So those sediments,
whatever amount they are, they are in Lake Hollymead, and they are still there. They came from
HTC, at least in part, and until they are removed, it is a continuing trespass.” Id. at 605; see also
id. at 734. No statute of limitations ever runs, counsel contended, until after the HTC defendants
dredge their sediment out of Lake Hollymead. Id. at 604, 607. 5
Sitting as factfinder, the court ruled against the POAs on the first issue, whether
discharge was continuous or intermittent. “I really studied closely and listened carefully to the
Plea in Bar on the continuing flow versus intermittent flow,” the judge stated, “and I find that the
defendants have sustained their burden, and I’m going to sustain the Plea in Bar.” Id. at 739. As
for the POAs’ alternative continuing-trespass argument, the court held as a matter of law: “I’m
going to sustain the Plea in Bar in terms of there’s no continuing trespass with no statute of
limitations. I do not accept that.” Id. Upon these grounds, the circuit court entered final
judgment dismissing the POAs’ case.
5
On appeal and below in the circuit court, the POAs make alternative arguments for the
operation of the statute of limitations: (1) The statute of limitations does not begin until the
deposits physically stop entering Lake Hollymead, see Appellants’ Br. at 24; (2) The statute of
limitations is continuous until the HTC defendants remove all sediment from the lake, see
Appellants’ Br. at 18; J.A. at 591, 734; and (3) The statute of limitations “never” runs if the
trespass continues, J.A. at 604, 607.
7
II.
A. ASSIGNMENTS OF ERROR
On appeal, the POAs frame their disagreement with the circuit court’s decision in two
very specific ways. The first assignment of error states that the court erred in “holding that all
trespass damages” from the sediment discharges into Lake Hollymead and “all claims for further
damages” from later discharges were barred by the five-year statute of limitations. Appellants’
Br. at 7. The second assignment of error faults the court for “refusing to rule” on the POAs’
motion for summary judgment on the grounds that the continuing-trespass theory had not been
adopted yet in Virginia and “thus would not be considered by the trial court.” Id.
We highlight the specific wording of the assignments of error to emphasize the
importance they play in our appellate review. An assignment of error is not a mere procedural
hurdle an appellant must clear in order to proceed with the merits of an appeal. Assignments of
error are the core of the appeal. With the assignment of error, an appellant should “lay his
finger” on the alleged misjudgment of the court below. Martin P. Burks, Common Law and
Statutory Pleading and Practice § 425, at 827 (T. Munford Boyd ed., 4th ed. 1952). A properly
aimed assignment of error must “point out” the targeted error and not simply take “a shot into the
flock” of issues that cluster around the litigation. Plant Lipford, Inc. v. E.W. Gates & Son Co.,
141 Va. 325, 332, 127 S.E. 183, 185 (1925) (citations omitted). “An assignment of errors is in
the nature of a pleading, and in the court of last resort it performs the same office as a declaration
or complaint in a court of original jurisdiction.” Puckett v. Commonwealth, 134 Va. 574, 579,
113 S.E. 853, 854 (1922) (citation omitted). 6 Like a well-crafted pleading, assignments of error
6
See Nicholas v. Harnsberger, 180 Va. 203, 208, 22 S.E.2d 23, 25 (1942); Ennis v. Town
of Herndon, 168 Va. 539, 545, 191 S.E. 685, 687 (1937); Ballard v. Commonwealth, 156 Va.
8
set analytical boundaries for the arguments on appeal, provide a contextual backdrop for our
ultimate ruling, and demark the stare decisis border between holdings and dicta.
B. THE STATUTE OF LIMITATIONS & TRESPASS DAMAGES
The POAs’ first assignment of error asserts that the circuit court erred by applying the
five-year statute of limitations in Code § 8.01-243(B) to bar their claim for trespass damages.
The assignment of error makes no mention of the injunctive relief they sought in their amended
complaint or the equitable doctrine of laches. We thus limit our analysis to the question of
whether Code § 8.01-243(B) barred the POAs’ claim for trespass damages.
1.
“Every action for injury to property . . . shall be brought within five years after the cause
of action accrues.” Code § 8.01-243(B). The POAs’ trespass claim asserts an injury to property,
and thus, the only question is when these claims accrued for purposes of running the five-year
limitation period. The general principle, well recognized in Virginia law, deems the accrual of a
cause of action for “injury to property,” id., to take place when the first measurable damage
occurs. See Code § 8.01-230 (providing that “the right of action shall be deemed to accrue and
the prescribed limitation period shall begin to run from the date the injury is sustained in the case
of . . . damage to property”); Southern Ry. v. Leake, 140 Va. 438, 441, 125 S.E. 314, 315 (1924)
(“Whenever any injury, however slight it may be, is complete . . . , the cause of action then
accrues.”); Virginia Hot Springs Co. v. McCray, 106 Va. 461, 470-71, 56 S.E. 216, 220 (1907)
980, 1005-06, 159 S.E. 222, 231 (1931); Daily v. Rucker, 151 Va. 72, 80, 144 S.E. 466, 468
(1928); Thurston v. Woodward, 139 Va. 315, 316, 123 S.E. 366, 366 (1924). See generally
Burks, supra, § 425, at 827; Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure
§ 17.8[K], at 1359 (6th ed. 2014).
9
(finding that that the statute of limitations begins to run once the property has been damaged). 7
At that point, the limitation period begins to run. Subsequent, compounding or aggravating
damage — if attributable to the original instrumentality or human agency — does not restart a
new limitation period for each increment of additional damage. See Kent Sinclair, Sinclair on
Virginia Remedies § 65-4[C], at 65-21 (5th ed. 2016).
That conclusion remains true even if the damage is expected to continue beyond the end
of any remedial litigation. In such cases, the claimant should forecast and claim a damage award
for past, present, and future damages. Id. (noting that, when the consequent damages “in the
normal course of things will continue indefinitely, there can be but a single action therefor and
the entire damage suffered, both past and future, must be recovered in the action” (emphasis
omitted)); see also Southern Ry. v. White, 128 Va. 551, 567-68, 104 S.E. 865, 870-71 (1920). 8
An important caveat, however, accompanies this general principle. It is possible for a
new cause of action to accrue that looks remarkably like an earlier one but is nonetheless a stand-
alone claim in its own right. When this occurs, the damage accompanying the new cause of
action sets new accrual starting blocks for a separate limitation period. See generally 1 James H.
Backman et al., A Practical Guide to Disputes Between Adjoining Landowners — Easements
7
The rule is the same in other areas of tort law. “[I]f any injury or damage immediately
results from the wrongful or negligent act of another, the party aggrieved has a cause of action,
and the statute of limitations begins to run at that time.” Stone v. Ethan Allen, Inc., 232 Va. 365,
369, 350 S.E.2d 629, 632 (1986) (emphasis in original). “[W]here an injury, though slight, is
sustained in consequence of the wrongful or negligent act of another and the law affords a
remedy therefor the statute of limitations attaches at once.” Id. (emphasis omitted) (quoting
Richmond Redev. & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827, 839, 80 S.E.2d 574,
581 (1954)). “It is not material that all the damages resulting from the act should have been
sustained at that time and the running of the statute is not postponed by the fact that the actual or
substantial damages do not occur until a later date.” Id. (emphasis in original).
8
See generally Charles T. McCormick, Handbook on the Law of Damages § 127, at 500-
15 (1935); 1 Theodore Sedgwick, A Treatise on the Measure of Damages §§ 94-95, at 159-63
(9th ed. 1912) (citing, inter alia, Virginia Hot Springs Co., 106 Va. at 470-71, 56 S.E. at 220).
10
§ 9.04[3][a], at 9-64 to -67 (2016) (discussing “temporary or recurring nuisances”). In this
situation, Code § 8.01-243(B) relies upon the traditional definition of “cause of action” to police
the distinction between an existing cause of action with continuing damages and a series of
separate causes of action, each with its own set of damages.
2.
Though easy to restate, these concepts defy any attempts at formulaic applications.
Because the underlying issue — determining the boundaries of a cause of action — depends so
heavily on the factual context of each case, our jurisprudence has tailored these principles to
analogous fact patterns and rights of action. In the most analogous case to the present one, an
upstream property owner built a sewer system for a newly reconstructed resort that discharged
into the stream, and a downstream property owner sought an award of “damages for polluting
and befouling” the stream that ran through the claimant’s property. Virginia Hot Springs Co.,
106 Va. at 462, 56 S.E. at 217.
In response to the claimant’s assertion that the discharge was “an actual physical
invasion” of his property, the upstream property owner claimed that the “sewer system was in its
nature, design and use a permanent structure,” which discharged to some degree continuously
into the stream. Id. at 466, 56 S.E. at 218. For this reason, the upstream defendant argued that
the downstream claimant’s cause of action should be barred by the five-year statute of
limitations, which ran from the date the permanent sewer system began discharging into the
stream. The trial court rejected this argument, but we reversed. 9
9
In Virginia Hot Springs Co., the downstream claimant asserted a nuisance claim. See
106 Va. at 463, 56 S.E. at 217. As the POAs and the HTC defendants correctly assume in their
briefs, our reasoning in that case applies both to nuisance and trespass claims. See Hampton Rds.
Sanitation Dist. v. McDonnell, 234 Va. 235, 239-40, 360 S.E.2d 841, 843-44 (1987) (applying
11
Recognizing the nuances this scenario presented, we surveyed in some detail the “great
weight of authority” represented by more than a dozen cases from other states as well as leading
treatises addressing the subject. Id. at 471, 56 S.E. at 220. We adopted the prevailing view that
a cause of action involving an injury of a “permanent character, resulting from a permanent
structure” accrued when the injury was first sustained, id. at 470-71, 56 S.E. at 220, even though
“the injury constantly and regularly recurs” over time, id. at 467, 56 S.E. at 219 (quoting
Rosenthal v. Taylor, Bastrop & Houston Ry., 15 S.W. 268, 269 (Tex. 1891)). 10 “So far as human
foresight could determine the sewer structure would continue as constructed for all time.”
Richmond Fairfield Ry. v. Llewellyn, 156 Va. 258, 286, 157 S.E. 809, 818 (1931) (describing the
facts of Virginia Hot Springs Co.). This accrual principle applies when the “damages resulted
from the erection of permanent structures, the use of which produced the injury complained of
immediately after the structures were first operated, the consequences of which continued in the
normal course of such operations, and might have been expected to continue indefinitely.” G.L.
Webster Co. v. Steelman, 172 Va. 342, 363, 1 S.E.2d 305, 314 (1939).
the statute-of-limitations analysis for nuisance cases to a trespass claim). See generally
Haywood v. Massie, 188 Va. 176, 182, 49 S.E.2d 281, 284 (1948) (“Generally speaking, there is
a distinction between a nuisance and a trespass, although many things are sometimes called
nuisances which are mere trespasses, and it has been said that an action for a nuisance which
violates a property right incident to the ownership of land is in the nature of one for trespass to
realty.” (citation omitted)). Though the analyses in these cases differ in some details, they
remain substantially the same for statute-of-limitations purposes. See, e.g., Hampton Rds.
Sanitation Dist., 234 Va. at 239, 360 S.E.2d at 843-44 (citing Norfolk & W. Ry. v. Allen, 118 Va.
428, 435, 87 S.E. 558, 560 (1916), a nuisance case, for the general accrual principles to be
applied to the plaintiff’s trespass cause of action for discharges of sewage on plaintiff’s land).
10
See also McCormick, supra note 8, § 127, at 500-15; Raymond D. Hiley, Comment,
Involuntary Sale Damages in Permanent Nuisance Cases: A Bigger Bang From Boomer, 14 B.C.
Envtl. Aff. L. Rev. 61, 68 (1986) (“If the structure that injuriously affecting the plaintiff’s
property was permanent, and the continuance of the injurious effect was relatively certain, then
the injury to the property was considered permanent, or ‘original.’” (quoting Virginia Hot
Springs Co., 106 Va. at 464, 56 S.E. at 218)).
12
Put another way, when the recurring injuries “in the normal course of things, will
continue indefinitely, there can be but a single action therefor, and the entire damage suffered,
both past and future, must be recovered in that action,” and as a result, “the right to recover will
be barred unless it is brought within the prescribed number of years from the time the cause of
action accrued.” Norfolk Cty. Water Co. v. Etheridge, 120 Va. 379, 380-81, 91 S.E. 133, 134
(1917) (quoting Worley v. Mathieson Alkali Works, 119 Va. 862, 865-66, 89 S.E. 880, 881
(1916)). For more than a century, this principle has been “the firmly established rule of law in
this jurisdiction.” Magruder v. Virginia-Carolina Chem. Co., 120 Va. 352, 354, 91 S.E. 121,
122 (1917). 11 In this scenario, the limitation period runs from the start of the continuous and
indefinite injury not the end of it. See generally Harrisonville v. W. S. Dickey Clay Mfg. Co.,
289 U.S. 334, 341 n.6 (1933) (explaining “that the cause of action is single and arises at the time
of the first injury, and that the statute of limitations runs from that date” (citing, inter alia,
11
See also Southern Ry. v. Watts, 134 Va. 503, 511, 114 S.E. 736, 738 (1922)
(recognizing that the principle applies in “most cases of permanent works” when the “completion
of the work and the commencement of the damage are practically simultaneous”); Southern Ry.
v. Fitzpatrick, 129 Va. 246, 253-54, 105 S.E. 663, 665 (1921) (holding that a claim asserting a
continuous “discharge” of smoke and water from a railroad facility that damaged adjacent
property was governed by a limitation period running from the date of the “construction” of the
facility); White, 128 Va. at 565, 104 S.E. at 870 (stating that “the statute of limitations begins to
run against the cause of action from the time of the complete erection of the nuisance”); Allen,
118 Va. at 435, 87 S.E. at 560 (stating that this “general controlling principle” requires that “the
statute of limitations begins to run against the cause of action from the time of the complete
erection of the nuisance”); McKinney v. Trustees of Emory & Henry Coll., Inc., 117 Va. 763,
767, 86 S.E. 115, 117 (1915) (“[On] the defense of the statute of limitations, we entertain no
doubt that under the facts of this case plaintiff’s cause of action accrued when the discharge of
sewage into Emory creek was in sufficient quantities to pollute the stream and constitute a
nuisance.”); Southern Ry. v. McMenamin, 113 Va. 121, 131, 73 S.E. 980, 983 (1912) (stating that
“where a nuisance is permanent” and “will continue indefinitely, there is but a single action
therefor, . . . and the right to recover will be barred unless it is brought within the prescribed
number of years from the time the cause of action accrued”); Virginia Hot Springs Co., 106 Va.
at 473-74, 56 S.E. at 221 (holding that the statute of limitations began to run from construction of
a structure “of a permanent character” that caused continuous pollution and barring plaintiff’s
claim because she failed to bring it “within the time limit of the statute”).
13
Virginia Hot Springs Co., 106 Va. 461, 56 S.E. 216)); Sinclair, supra, § 65-4[C], at 65-22
(stating the limitation period begins to run “when the damage originated”). 12
This rule is qualified, however, by an overarching exception that a series of “repeated
actions” causing temporary injuries to property would run the limitation period anew with each
such action. Virginia Hot Springs Co., 106 Va. at 463-64, 56 S.E. at 217-18. This exception can
apply even when the physical structure causing the damage is itself a permanent fixture on the
offender’s property. For example, in Hampton Roads Sanitation District v. McDonnell, a
sewage plant operating under “normal conditions” did not discharge wastewater on any private
property. 234 Va. 235, 237, 360 S.E.2d 841, 842 (1987). When the volume in the sewage plant,
however, reached “three times the normal quantity,” a discharge occurred through operation of a
bypass valve. Id.
In McDonnell, that abnormal condition occurred on nine separate occasions over a 12-
year period with each occasion resulting in a discharge onto the claimant’s property. Affirming
the trial court, we concluded these “discharges were not continuous” and “occurred only at
intervals.” Id. at 239, 360 S.E.2d at 844. While the sewage plant itself was permanent, the
12
In the case of a “permanent injury,” the damages award will “ordinarily” be the
diminished value of the property. Virginia Hot Springs Co., 106 Va. at 467-72, 56 S.E. at 219-
21 (citation omitted) (collecting cases). Generally, “[b]oth damages and injunction are available
as remedies in a common-law action against pollution.” Patrick M. McSweeney, Virginia § I(B),
at 6, in 4 Waters and Water Rights pt. XI (Amy K. Kelley ed., 3d ed. 2009). If a court exercises
its injunctive powers to enjoin further injury to the property, a compensatory damages award
could include the remediation costs of restoring the claimant’s property to its former state. See
Packett v. Herbert, 237 Va. 422, 427, 377 S.E.2d 438, 442-43 (1989) (holding that “if the
nuisance can be abated” by an award of injunctive relief, “the adjoining owner is only entitled to
such damages as he may have sustained up to the time of the abatement of the nuisance, not
including damages for the permanent diminution in the value of his property”); accord
Harrisonville, 289 U.S. at 337-38 (considering whether “substantial redress” provided by an
award of damages for a permanent nuisance counsels against injunctive relief that “would
subject the defendant to grossly disproportionate hardship” and would prejudice “an important
public interest”).
14
discharges were too temporary and episodic to justify the running of a single limitation period.
We thus held that “each discharge inflicted a new injury” triggering separate five-year periods of
limitation. Id.; see also G.L. Webster Co., 172 Va. at 365, 1 S.E.2d at 315 (holding that “the
damages were not occasioned by the erection of the factory, or the mere improvement and
straightening of the ditches and drains” but rather “by subsequent acts incidental to the operation
of the plant”); Norfolk & W. Ry. v. Allen, 118 Va. 428, 434, 87 S.E. 558, 560 (1916) (“Diverting
the water by the operation of the pump was the cause of the plaintiff’s injury” and “was not
continuous, but only at intervals, thereby inflicting a new injury with each operation.”).
3.
A hundred years ago, we acknowledged that “[t]he authorities are in the main harmonious
in stating the general principles” on this subject but that “they are not so in the application of
these principles to particular cases.” Allen, 118 Va. at 434, 87 S.E. at 560. “The confusion
which is found in the precedents has arisen not so much from the statement of governing
principles as from the inherent difficulty” in applying these principles to the multitude of unique
circumstances in which such cases arise. Id. at 434-35, 87 S.E. at 560 (citation omitted).
In this case, the parties agree that a cause of action for trespass (if otherwise legally
viable) 13 accrued no later than fall 2004 when sediment from the HTC site began to enter Lake
Hollymead after the construction of the three sediment basins. That conceded fact serves as the
baseline for the main question presented at the plea-in-bar hearing: Were later sediment
13
We offer no opinion on this collective assumption. At common law, trespass typically
involved a direct, rather than an indirect, invasion of the possessory rights of the claimant. See
generally Sinclair, supra, § 65-1[B], at 65-7 (noting that although an action for nuisance involves
the same type of injury as an action for trespass, nuisances can be distinguished “by the fact that
they involve the use of the defendant’s own land in a way that interferes unduly with the
plaintiff’s quiet enjoyment of his land” and implying that a nuisance was a less direct invasion of
the claimant’s possessory rights than trespass).
15
discharges merely a continuation of the same injury or were they so temporary and episodic as to
imply the accrual of new causes of action triggering new five-year limitation periods?
Sitting as factfinder, the circuit court received detailed testimony and exhibits on the
specific operation of the sediment basins, their physical functions, and their design efficacies.
The court also considered whether any of the ongoing sediment discharge could be separated
reasonably into discrete episodes. The totality of the evidence convinced the court that the
permanent sediment basins discharged into Lake Hollymead on a continuous basis and that the
five-year statute of limitations was not revived for any particular discharge episode. Necessarily
implicit in the court’s findings is its rejection of the POAs’ factual claim that this continuous
discharge should be treated as factually insignificant.
The court had ample grounds to come to the conclusions that it did. All three of the HTC
sediment basins were permanently in place by fall 2004. The structural features of the basins
automatically controlled their day-to-day operations. No HTC defendant exercised any
operational control over the basins or modified them in any way. Nor were any bypass valves
turned on or off on specific occasions over the years. The witnesses, including the POAs’ own
expert, recognized that sediment discharge, at least to some degree, continuously flowed from
the basins into Lake Hollymead because of the functional design of the basins. 14 Absent “any
cause but human labor,” Virginia Hot Springs Co., 106 Va. at 464-65, 56 S.E. at 218 (citations
omitted), sediment discharge from the HTC basins will likely continue indefinitely. No evidence
persuaded the trial court that the continuity of this sediment flow was punctuated by stand-alone,
14
We thus need not address Richmond Fairfield Ry., 156 Va. at 286-87, 157 S.E. at 818
(holding that claimant’s injury from sewer discharge on her property was not “permanent” when
the defendant planned to “discontinue” the discharge).
16
temporary episodes of discharge that were materially different from the continuous sediment
discharges that began as early as 2004.
The POAs’ argument to the contrary appears to rest on the assumption that it matters, for
accrual purposes, that the continuing nature of the damage might fluctuate or even get worse
over time. Under Virginia law, however, the limitation period “will not be extended simply
because the damage is much larger in later years than it was when the structures were first
erected.” Sinclair, supra, § 65-4[C], at 65-21 (emphasis in original). We made this point in
Southern Railway v. McMenamin, 113 Va. 121, 73 S.E. 980 (1912), in which this Court rejected
the assertion that “the bar of the statute of limitations” could only be applied to ongoing injuries
that were “continuous in the same manner, and substantially to the same extent,” from their
inception. Id. at 132, 73 S.E. at 983 (emphasis omitted). A showing of “increased damage,” by
itself, does not defeat the application of the statute of limitations in this context. Id. Thus, it is
“not essential to the defense of the statute of limitations that the damage complained of should
exist to the same extent during the period of five years.” Id. (emphasis and citation omitted). 15
C. DENIAL OF THE POAS’ MOTION FOR SUMMARY JUDGMENT
The POAs’ second assignment of error asserts that the circuit court erred by “refusing to
rule” on their motion for summary judgment, which asserted that Virginia courts should adopt
15
See also Ellerson Floral Co. v. Chesapeake & Ohio Ry., 149 Va. 809, 812, 141 S.E.
834, 835 (1928) (expressing “no quarrel” with prior cases “which hold that obstructions which,
with certainty, will cause floods, although at uncertain intervals, constitute permanent
nuisances”); White, 128 Va. at 568, 104 S.E. at 871 (“There can be no question that this is a
permanent structure, and that the evidence warrants the conclusion, that the injuries to the land
flowing from it are not of a recurrent or intermittent character, but are permanent in their nature,
and in the normal course of things will continue indefinitely. It is true that the water sometimes
gets low in dry weather, and the overflow ceases temporarily, but the menace of an overflow and
destruction of crops is always present, as shown by the repeated damage to crops.” (emphasis
omitted) (quoting Etheridge, 120 Va. at 381, 91 S.E. at 134)).
17
the approach of the Restatement (Second) of Torts to their claim concerning the “continuing
nature of damage” caused by the “unremoved deposits of silt and sediment.” Appellants’ Br. at
8. If we embrace this approach, the POAs reason, “the applicable statute of limitations should
run continuously until such time as the trespassing materials are physically removed” from Lake
Hollymead, and thus, they should be allowed a “recovery of damages” based upon common-law
trespass “for the entire period of trespassing events.” Id. at 18. Under the POAs’ understanding
of the Restatement approach, a statute of limitations for a trespass claim seeking damages begins
to run only when the continuing trespass ceases. In this case, they conclude, the five-year
limitation period in Code § 8.01-243(B) “should not begin until such deposits stop.” Id. at 24.
We find this argument tangled with several conceptual knots. To begin, the circuit court
did not refuse to rule on the POAs’ motion for summary judgment. That motion was never
scheduled for a hearing, and thus, the court understandably addressed the only issue before it,
which was limited to the HTC defendants’ pleas in bar. This fact alone ordinarily would be
sufficient for us to decline to address the arguments asserted in the motion for summary
judgment. See Rule 5:25; Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724
(2010) (finding that there is “no basis for review or action by this Court on appeal” for purposes
of Rule 5:25 if “there is no ruling by the trial court on the issue” (quoting Riverside Hosp., Inc. v.
Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006))). In this case, however, the POAs
asserted the underlying argument during the plea-in-bar hearing while simultaneously
acknowledging that they understood their motion for summary judgment was not yet before the
court for a ruling. See J.A. at 591. We thus address the legal issue only in that context.
So viewed, the POAs’ continuing-trespass argument misses the point of the circuit
court’s ruling. Whether a common-law tort has occurred and, if so, how long it lasts, is not the
18
same thing as when, if ever, a statute of limitations bars the assertion of that tort claim in court.
A dismissal based on a statute-of-limitations defense presupposes, at least arguendo, that an
otherwise viable cause of action exists. And on this issue, the Restatement merely repeats an
incontestable general proposition:
An unprivileged remaining on land in another’s possession is a
continuing trespass for the entire time during which the actor
wrongfully remains. Such a continuing trespass is to be
distinguished from a series of separate trespasses on land, as where
A habitually crosses B’s field without a privilege to do so.
Restatement (Second) of Torts § 158 cmt. m (1965). That is a fair restatement of English
common law, 16 which is the law of this Commonwealth already, see Code § 1-200, and has been
received as such as part of our common-law heritage, see, e.g., Fancher v. Fagella, 274 Va. 549,
556, 650 S.E.2d 519, 522-23 (2007) (finding that the pleaded facts of encroaching tree roots
causing damage to a neighbor’s property “if proved . . . would constitute a continuing trespass”);
Xspedius Mgmt. Co. of Va. v. Stephan, 269 Va. 421, 423-24, 611 S.E.2d 385, 386 (2005) (finding
a continuous trespass when an underground fiber optic line remained on another’s property
without permission).
Even so, the five-year statute of limitations, of course, is a statute — not a principle of
common-law trespass. “There was no such thing,” after all, “as a limitation of actions at
16
See generally 5 Matthew Bacon, A New Abridgment of the Law 192 (1766) (stating
that declaring an “Action of Trespass Vi et Armis with a Continuando” is appropriate “where the
Trespass may have been continued without Intermission for a longer Time than the Space of one
Day” as opposed to distinct actions brought “because as the Whole of such Trespass must have
been committed upon one Day, it cannot have been either continued to or repeated upon any
other” (emphases omitted and archaic spelling modified)); 3 William Blackstone, Commentaries
*212 (“In trespasses of a permanent nature, where the injury is continually renewed, (as by
spoiling or consuming the herbage with the defendant’s cattle,) the declaration may allege the
injury to have been committed by continuation from one given day to another, (which is called
laying the action with a continuando,) and the plaintiff shall not be compelled to bring separate
actions for every day’s separate offence.” (emphases omitted)).
19
common law.” Johnson v. Merritt, 125 Va. 162, 175, 99 S.E. 785, 789 (1919); see also
Quackenbush v. Isley, 154 Va. 407, 413, 153 S.E. 818, 820 (1930); Burks, supra, §§ 230-31, at
390-91. The question we must answer in this case is how Code § 8.01-243(B), the five-year
statute of limitations applicable to property injuries, applies to the specific facts of this case. Our
earlier discussion has already answered that question. Based on the circuit court’s factfinding,
Code § 8.01-243(B) began the five-year limitation period applicable to property-damage claims 17
when the HTC defendants’ permanent sediment basins first began its continuous discharging of
sediment into Lake Hollymead. Supra at 15-17.
The Restatement provisions relied upon by the POAs do not specifically address the
application of statutes of limitations to continuous injuries to property either under trespass or
nuisance law. The most the Restatement says on the subject is that the continuing-trespass rule
“may be of importance where an action for the original entry is barred by the statute of
17
“In a proper case an injunction will be granted to compel the actor to remove from the
land a structure, chattel or other thing wrongfully placed there by him.” Restatement (Second)
Torts § 161 cmt. b (1965) (Reporter’s Notes). “Permanent encroachments may also provide a
basis for mandatory injunctions. Nevertheless, even though an award of damages may not be
adequate to remedy an encroachment, issuance of an injunction to remove the encroachment
remains discretionary with the court.” 9 Richard R. Powell, Powell on Real Property
§ 64A.05[8], at 64A-61 to -62 (Michael Allan Wolf ed., 2016).
The POAs, however, limited their argument on appeal to their claim for trespass
damages. They do not address equitable remedies, such as injunctive relief, the doctrine of
laches, Code § 8.01-230 (recognizing the “solely equitable” exception for accrual), or the
doctrine that equity follows the law. See Sinclair, supra, § 43-2[E], at 43-13; id. § 51-4[F], at
51-36; id. § 65-4[A], at 65-19 n.1; cf. E.W. Face & Son v. Cherry, 117 Va. 41, 45, 84 S.E. 10, 11
(1915) (refusing to apply laches to a “continuing nuisance” based upon “gradual and cumulative”
conditions creating the nuisance). As the Restatement has observed, “[a] potent cause of
confusion as to the meaning and scope of private nuisance lies in the failure to distinguish the
action at law from the suit for injunction in equity.” Restatement (Second) of Torts § 822 cmt. d
(1979). We nevertheless offer no opinion on these subjects given the limited scope of the POAs’
assignments of error.
20
limitations, or where successive actions are brought for a continuing trespass.” Restatement
(Second) of Torts § 160 cmt. h (1965); see also id. § 899 cmt. d (1979); id. § 930(1)-(2).
We acknowledge that, from these oblique references, some courts have inferred the
POAs’ conclusion that, if a trespass or nuisance were continuous, no limitation period should
ever run until the continuing trespass or nuisance ceases altogether. See Appellants’ Br. at 26-28
(citing Hoery v. United States, 64 P.3d 214, 217-19 (Colo. 2003)). Our view to the contrary,
however, has been the law of this Commonwealth for over a century. We are confident that the
General Assembly by now would have corrected any misinterpretation of the statute of
limitations on our part if, indeed, there were one. See generally Manchester Oaks Homeowners
Ass’n v. Batt, 284 Va. 409, 428, 732 S.E.2d 690, 702 (2012). Though we accept the admonition
that “[the] verdict of quiescent years cannot be invoked to baptize a statutory gloss that is
otherwise impermissible,” Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969), the POAs have not
persuaded us that our traditional view on this subject should be set aside.
III.
Addressing only the two assignments of error before us, we hold that the circuit court
correctly applied the statute of limitations to the POAs’ claim of trespass damages and did not
erroneously deny the POAs’ motion for summary judgment.
Affirmed.
21 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4126658/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DOUGLAS BOURDON,
Plaintiff
v.
Civil Action No. 15-2241 (CKK)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants
MEMORANDUM OPINION
(February 16, 2017)
This case arises from the United States Citizenship and Immigration Service (“USCIS”)
West Palm Beach Field Office’s denial of Plaintiff’s petition to classify his wife, an adult citizen
of Vietnam, as his immediate relative for immigration purposes. The USCIS West Palm Beach
Field Office denied Plaintiff’s petition pursuant to the Adam Walsh Child Protection and Safety
Act of 2006 (“Adam Walsh Act” or “AWA”), which prohibits U.S. citizens from filing such
petitions if they have been convicted of certain specified offenses against minors, unless they can
prove that they would pose no risk to the alien-beneficiary of the petition. Plaintiff was
convicted of one of these specified offenses—the possession of child pornography—in 2003, and
the USCIS West Palm Beach Field Office determined that Plaintiff failed to establish that he
qualified for the “no risk” exception to the AWA’s prohibition. Plaintiff contends that the denial
of his petition was unlawful for a variety of reasons. Pending before the Court is Defendants’ [7]
Motion to Dismiss or Change Venue. Defendants ask the Court to dismiss Plaintiff’s Complaint
for lack of jurisdiction and for failure to state a claim or, in the alternative, to transfer this action
to the United States District Court for the Southern District of Florida.
1
Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a
whole, the Court GRANTS-IN-PART and DENIES-IN-PART WITHOUT PREJUDICE
Defendants’ motion. The Court GRANTS Defendants’ motion to transfer this action to the
Southern District of Florida because venue would have been proper in that District had this
action been brought there originally, and the relevant private and public interest factors weigh in
favor of transfer. Because the Court transfers this action, it will not reach the merits of
Defendants’ motion to dismiss for lack of jurisdiction and for failure to state a claim. Instead,
the Court DENIES that portion of Defendants’ motion WITHOUT PREJUDICE to it being
refiled in the Southern District of Florida, if appropriate. 2
I. BACKGROUND
A. Statutory Background
Immediate relatives of United States citizens, including spouses, receive certain
preferential treatment under U.S. immigration law. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i)
(stating that the immigration of immediate relatives is not subject to numerical limitations); Pl.’s
Compl. for Declaratory and Injunctive Relief, ECF No. 1, (“Compl.”) at ¶ 21. However, U.S.
1
The Court’s consideration has focused on the following documents:
• Defs.’ Mot. to Dismiss or Change Venue (“Defs.’ Mot.”), ECF No. 7;
• Pl.’s Opp’n to Mot. to Dismiss or Change Venue (“Pl.’s Opp’n”), ECF No. 11; and
• Defs.’ Reply in Support of Mot. to Dismiss or Change Venue (“Defs.’ Reply”), ECF No. 13.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
The Court has decided to dismiss this portion of Defendants’ motion without prejudice instead
of holding it in abeyance for the transferee court. After the briefing on this motion was
completed, Defendants filed a notice of supplemental authority regarding a recent opinion from
the Eighth Circuit Court of Appeals that appears to address a number of the issues in this case
and Plaintiff filed a response to that notice. It may be more efficient and helpful to the transferee
court for the parties to file and brief this motion anew, incorporating the most up-to-date case law
and without needing to focus on arguments regarding venue.
2
citizens generally must formally petition the government to recognize their foreign relative as an
“immediate relative” before they can receive such treatment. The procedures for filing such a
petition are set forth in 8 U.S.C. § 1154. The AWA, which Congress passed in 2006, added
language to section 1154 that states that these procedures “shall not apply to a citizen of the
United States who has been convicted of a specified offense against a minor, unless the Secretary
of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the
citizen poses no risk to the alien with respect to whom a petition” is filed. 8 U.S.C. §
1154(a)(1)(A)(viii). A “specified offense against a minor” is elsewhere defined to include,
among other things, the “[p]ossession, production, or distribution of child pornography.” 42
U.S.C. § 16911(7)(G).
Plaintiff alleges that the Secretary of Homeland Security has delegated responsibility for
deciding whether a petitioner has proven that he poses “no risk” under the AWA to Department
of Homeland Security (“DHS”) line officers, whose adverse decisions on this issue are not
subject to oversight or appeal. Compl. ¶ 5. Plaintiff further alleges that the DHS requires its line
officers to require the petitioning U.S. citizen to establish that they pose no risk “beyond a
reasonable doubt.” Id.
B. Factual Background
Plaintiff Douglas Bourdon, an American citizen and resident of Stuart, Florida, alleges
that Defendant DHS has wrongfully refused him the opportunity to petition for recognition of his
spousal relationship with his wife, Ms. Thi Thuan Tran. Id. ¶¶ 1, 11. Ms. Tran is a citizen of
Vietnam. Id. ¶ 31. Plaintiff and Ms. Tran were married on May 24, 2008, and on June 18, 2008
Plaintiff submitted a petition requesting that the government recognize Ms. Tran as his
immediate relative. Id. ¶¶ 31-32. On January 15, 2009, Plaintiff and Ms. Tran appeared for an
3
interview regarding that petition. Id. ¶ 32. Plaintiff alleges that at that interview he was
informed that he would be prevented from petitioning for recognition of his spouse pursuant to
the AWA because Plaintiff had previously been convicted of a “specified offense against a
minor”—the possession of child pornography—unless Plaintiff was able to satisfy the AWA’s
“no risk” exception. Id.
The USCIS then issued Plaintiff a Request for Evidence (“RFE”) regarding Plaintiff’s
child pornography offense and rehabilitation. Id. ¶ 33. Plaintiff responded to the RFE, providing
an affidavit from Ms. Tran and reports from a social worker and forensic examiner. Id. ¶¶ 33-34.
Despite this evidence, the USCIS West Palm Beach Field Office denied Plaintiff’s petition on
December 4, 2009 based on his child pornography conviction. Id. ¶ 35. That office determined
that Plaintiff had not demonstrated “beyond a reasonable doubt” that he posed no risk to Ms.
Tran. Id.
Plaintiff appealed that decision to the Board of Immigration Appeals (“BIA”) on January
7, 2010. Id. ¶ 36. The BIA subsequently remanded the petition to the USCIS West Palm Beach
Field Office for further development of the record and additional briefing. Id.
Although Plaintiff submitted the requested briefing on August 31, 2012, he had not yet
received a new decision regarding his petition as of March 4, 2014. Id. ¶¶ 37-38. Accordingly,
Plaintiff filed suit at that time in the United States District Court for the Southern District of
Florida, seeking to compel a decision on his petition. Id. ¶ 38. Following additional procedural
maneuvers, the USCIS West Palm Beach Field Office issued a new RFE, and Plaintiff provided
that office with additional information regarding his conviction and rehabilitation. Id. ¶ 39.
Plaintiff submitted additional forensic reports, medical records, social security records, evidence
of employment, and affidavits from Plaintiff, Ms. Tran and members of Ms. Tran’s family. Id.
4
On November 21, 2014, the USCIS West Palm Beach Field Office again denied
Plaintiff’s petition. Id. ¶ 40. Plaintiff alleges that this denial was wrongful for a number of
reasons. First, Plaintiff alleges that the USCIS wrongfully applied a “beyond a reasonable
doubt” standard to its decision that Plaintiff had failed to establish that he qualified for the AWA
“no risk” exception. Id. Second, Plaintiff alleges that USCIS based its denial on risks Plaintiff
might pose not to Ms. Tran, but to “society” at large, or any grandchildren Ms. Tran may have in
the future—considerations Plaintiff claims are outside the scope of the AWA. Id. Third,
Plaintiff alleges that USCIS wrongfully based its denial on the fact that Plaintiff had traveled to
Vietnam and Thailand during the pendency of his petition, which the West Palm Beach Field
Office viewed—incorrectly, in Plaintiff’s eyes—as countries tolerant of child abuse. Id. ¶ 41.
Fourth, Plaintiff alleges that the USCIS wrongfully based its denial on its determination that
certain declarations filed by Ms. Tran’s family members were “self-serving” because the Field
Office incorrectly believed that the declarants stood to benefit from Ms. Tran’s entry into the
country because they themselves would then be able to emigrate from their home countries to the
United States. Id. ¶ 43. Fifth, Plaintiff alleges that the West Palm Beach Field Office ignored
much of the evidence Plaintiff had submitted to establish that he posed no risk to Ms. Tran. Id. ¶
44. Plaintiff appealed the denial to the BIA, but the BIA dismissed Plaintiff’s appeal on July 21,
2015. Id. ¶¶ 45-46.
Based on the preceding facts, Plaintiff has asserted six causes of action. Id. ¶¶ 49-86.
Plaintiff claims that Defendants have impermissibly applied the AWA retroactively, have
exceeded the scope of Congress’ enumerated powers, and have violated the Administrative
Procedure Act (“APA”) and the Fifth Amendment to the United States Constitution. Id. As
relief, among other things, Plaintiff requests that this Court vacate the USCIS West Palm Beach
5
Field Office’s decision and issue a mandatory injunction requiring Defendants to approve
Plaintiff’s visa petition on behalf of Ms. Tran. Id. at 25-26.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 1404(a), a court may transfer a case to any other district where it
might have been brought “[f]or the convenience of parties and witnesses, in the interest of
justice.” The party moving to transfer venue bears the burden of establishing that convenience
and the interests of justice weigh in favor of transfer. See Int’l Bhd. of Painters & Allied Trades
Union v. Best Painting and Sandblasting Co., Inc., 621 F. Supp. 906, 907 (D.D.C. 1985).
Section 1404(a) vests discretion in the district court to conduct an “individualized, case-by-case”
analysis of whether transfer is appropriate. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988).
III. DISCUSSION
As discussed above, Defendants’ motion seeks two alternative forms of relief. First,
Defendants ask the Court to transfer this action to the United States District Court for the
Southern District of Florida. Second, if the Court does not transfer this action, Defendants ask
the Court to dismiss Plaintiff’s Complaint for lack of jurisdiction and for failure to state a claim.
Because the Court will grant Defendants’ motion to transfer venue, it will not reach the merits of
Defendants’ motion to dismiss.
A. Defendants’ Motion to Transfer Venue
Defendants make two distinct contentions regarding venue in their motion. First,
Defendants contend that transfer is required because venue is not proper in the District of
Columbia. Second, Defendants contend that even if venue is technically proper in the District of
Columbia, this Court should exercise its discretion to transfer this action to the Southern District
6
of Florida pursuant to 28 U.S.C. § 1404(a). The Court rejects Defendants’ first contention, but
agrees that this case should be transferred under section § 1404(a) in the interest of justice.
1. Venue is Proper in the District of Columbia
The Court first rejects Defendants’ assertion that there is no basis for venue in this Court.
In actions where, as here, defendants include agencies of the United States, or officers or
employees of the United States or its agencies, venue is proper “in any judicial district in which
(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is situated,
or (C) the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1).
With respect to the first basis for venue, “[t]he residence of an official defendant is determined
on the basis of the official residence of the federal officer or agency.” Franz v. United States,
591 F. Supp. 374, 377 (D.D.C. 1984) (citing Lamont v. Haig, 590 F.2d 1124, 1128 n.19 (D.C.
Cir. 1978) (“What controls is the official residence of the federal defendant where the official
duties are performed”)). The official residences of a number of the Defendants in this action—
the DHS, the Secretary of the DHS, the Attorney General of the United States, USCIS, and the
Director of the USCIS—are all within the District of Columbia. Defendants may rightfully
argue that the events or omissions giving rise to Plaintiff’s claims occurred in Florida, but that
does not detract from the plain statutory basis for venue in the District of Columbia based on the
residence of several of the Defendants. Venue is technically valid in this District.
2. This Action Should be Transferred to the Southern District of Florida
Although venue is technically valid in this District, the Court may nonetheless exercise
its discretion to transfer this action to another District Court in the interest of justice pursuant to
28 U.S.C. § 1404(a). Determining whether transfer is appropriate pursuant to section 1404(a)
7
calls for a two-part inquiry. First, the Court must ask whether the transferee forum is one where
the action “might have been brought” originally. § 1404(a). Second, the Court must consider
whether private and public interest factors weigh in favor of transfer. Lentz v. Eli Lilly & Co.,
464 F. Supp. 2d 35, 36-37 (D.D.C. 2006). In this case, the Court concludes that this action could
have been brought in the Southern District of Florida originally, and that the relevant private and
public interest factors weigh in favor of transferring this action to that District now.
a. Plaintiff Could Have Brought this Action in the Southern District of Florida
Venue would have been proper in the Southern District of Florida if this action had been
brought there originally. As explained above with respect to the District of Columbia, venue
would be proper in this case “in any judicial district in which (A) a defendant in the action
resides, (B) a substantial part of the events or omissions giving rise to the claim occurred . . . or
(C) the plaintiff resides . . .” 28 U.S.C. § 1391(e)(1). Multiple circumstances are present here
with respect to the Southern District of Florida. Both Plaintiff and Defendant Laura Castillo
reside in that District and, as will be discussed in further detail below, a substantial part—if not
all—of the events or omissions giving rise to Plaintiff’s claims occurred there. Accordingly, this
action could have been brought originally in the Southern District of Florida.
b. The Private and Public Interest Factors Weigh in Favor of Transfer
The second step of the Court’s analysis is determining whether the relevant private and
public interest factors weigh in favor of transferring the action. The Court finds that both sets of
factors weigh in favor of transfer in this case because Plaintiff’s claims arose in the Southern
District of Florida and this is predominantly a local controversy that should be decided in that
District.
8
i. Private Interest Factors
In considering whether to transfer an action, the Court considers the following private
interest factors: “(1) the plaintiffs’ choice of forum, unless the balance of convenience is strongly
in favor of the defendants; (2) the defendants’ choice of forum; (3) whether the claim arose
elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses of the plaintiff
and defendant, but only to the extent that the witnesses may actually be unavailable for trial in
one of the fora; and (6) the ease of access to sources of proof.” Greater Yellowstone Coalition v.
Bosworth, 180 F. Supp. 2d 124, 127 (D.D.C. 2001).
The balance of these factors weighs in favor of transfer. First, Plaintiff’s choice of forum
is afforded minimal weight in this case. Although the “plaintiff’s choice of forum is ordinarily
entitled to deference,” that choice is conferred considerably less deference when it is not the
plaintiff’s home forum, has few factual ties to the case at hand, and defendants seek to transfer to
plaintiff’s home forum. Nat’l Ass’n of Home Builders v. U.S. Envt’l Prot. Agency, 675 F. Supp.
2d 173, 179-80 (D.D.C. 2009); New Hope Power Co. v. U.S. Army Corps of Engineers, 724 F.
Supp. 2d 90, 96 (D.D.C. 2010) (“Because the plaintiffs did not bring this claim in their home
forum, this case lacks meaningful ties to the District of Columbia, and defendants seek transfer
to the plaintiffs’ home forum, the plaintiffs’ choice of forum will be accorded little deference and
the choice of forum factors favor transfer.”); Trout Unlimited v. U.S. Dep’t of Agric., 944 F.
Supp. 13, 17 (D.D.C. 1996) (same). Here, Plaintiff resides in the Southern District of Florida,
where Defendants seek to transfer this action, and all of the events relating to Plaintiff’s petition
occurred in that District. This factor accordingly provides little if any support for maintaining
venue in the District of Columbia.
9
Second, and of predominant importance in this case, Plaintiff’s claims arose in the
Southern District of Florida. Cases challenging the actions of local USCIS offices are
frequently, and appropriately, transferred to the venue encompassing those local offices for this
reason. See Aftab v. Gonzalez, 597 F. Supp. 2d 76, 80 (D.D.C. 2009) (transferring action relating
to application for adjustment of status processed in a Texas USCIS office to the U.S. District
Court for the Northern District of Texas, noting that “[w]hile the claim arguably arose in more
than one district, the claim involves identifiable relevant events occurring in the transferee
district and virtually none in this district.”); Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 19
(D.D.C. 2008) (transferring action relating to application for adjustment of status, travel
documents and employment authorization pending in a Virginia USCIS office to the U.S.
District Court for the Eastern District of Virginia because “the relevant events giving rise to
plaintiff’s claim have occurred or will occur in that district” and although “plaintiff names as
defendants certain high-level government officials with offices in this district, these individuals
are not the ones who will adjudicate his applications”); Abusadeh v. Chertoff, No. 6-CV-2014,
2007 WL 2111036, at *6 (D.D.C. July 23, 2007) (transferring action relating to application for
naturalization processed in a Texas USCIS office to the U.S. District Court for the Southern
District of Texas because “Plaintiff, a resident of the Southern District of Texas, applied for
naturalization in that District, was interviewed in connection with his application in that District,
and has since communicated with the USCIS office in that District regarding his application”).
The USCIS West Palm Beach Field Office, located within the Southern District of
Florida, handled the adjudication of Plaintiff’s petition. That office issued the relevant
documents in this case, including the RFEs and the denial of Plaintiff’s petition that is the basis
of Plaintiff’s claims. Plaintiff sent his responses to those RFEs to that office and attended
10
interviews there. The alleged errors underlying the denial of Plaintiff’s petition were all
committed by the West Palm Beach Field Office in the Southern District of Florida. When
Plaintiff was aggrieved by that office’s failure to issue a decision on his petition, he filed a
previous lawsuit about this in the United States District Court for the Southern District of
Florida. In short, Plaintiff does not dispute that the entire petition, denial and appeal process
described above has all occurred within the Southern District of Florida.
Instead, Plaintiff attempts to downplay the importance of these events to his claims.
Despite the fact that nearly all of the events described in Plaintiff’s Complaint occurred in the
Southern District of Florida, Plaintiff describes his claims as if they were entirely focused on
national policies that emanated from agency headquarters in the District of Columbia.
Specifically, Plaintiff claims that the legal errors committed by the USCIS West Palm Beach
Field Office are in line with nationally applicable policy memos disseminated from USCIS
headquarters in the District of Columbia.
The Court is mindful in considering this type of argument that “[c]ourts in this circuit
must examine challenges to personal jurisdiction and venue carefully to guard against the danger
that a plaintiff might manufacture venue in the District of Columbia. By naming high
government officials as defendants, a plaintiff could bring a suit here that properly should be
pursued elsewhere.” Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). Having
examined the challenge to venue in this case carefully, the Court finds Plaintiff’s argument
unpersuasive for two reasons. First, the policy memos Plaintiff relies on are irrelevant to many
of the errors Plaintiff challenges in this case. Plaintiff complains that the USCIS West Palm
Beach Field Office failed to consider evidence Plaintiff submitted in support of his petition,
mischaracterized that evidence, based its decision on incorrect interpretations of United States
11
immigration laws and wrongfully relied on mistaken assumptions about the circumstances in
certain foreign countries which Plaintiff was not given the opportunity to rebut. Plaintiff does
not explain how any of these alleged errors were dictated by, or even in line with, any
nationwide policy or anything else emanating from the District of Columbia. Venue is clearly
more appropriate in the Southern District of Florida for these claims, which make up the majority
and gravamen of Plaintiff’s complaint. 3
Second, even with respect to the aspects of the denial of Plaintiff’s petition that were
allegedly in line with certain nationally applicable USCIS policy memos, the connection between
the events at issue in this case and the District of Columbia is still tenuous at best. The gravamen
of Plaintiff’s Complaint is that errors were committed during the adjudication of Plaintiff’s
petition, which took place entirely within the Southern District of Florida. Although aspects of
this adjudication may have been influenced by these policy memos, the Court finds this
connection insufficient to support venue in this District: where, as here, “‘the only real
connection [the] lawsuit has to the District of Columbia is that a federal agency headquartered
here is charged with generally regulating and overseeing the [administrative] process, venue is
not appropriate in the District of Columbia.’” Al-Ahmed, 564 F. Supp. 2d at 19 (quoting
Abusadeh, No. 2007 WL 2111036, at *6-7).
In this respect, the Court agrees with Judge Thomas F. Hogan, who, in an extremely
similar case, recently rejected the same argument put forth by Plaintiff here. Like Plaintiff in this
3
For this reason, the circumstances in Ravulapalli v. Napolitano, 773 F. Supp. 2d 41 (D.D.C.
2011), a case relied on by Plaintiff, were different than those in this case. In that case, the Court
exercised its discretion to deny a motion to transfer where “Plaintiffs’ claims focus[ed] primarily
on the policies issued from USCIS headquarters that apply to all USCIS field offices.” Id. at 56
(emphasis added). The Court concludes that Plaintiff’s claims in this case do not focus primarily
on national policies.
12
case, the plaintiffs in Pearson v. Rodriguez, 174 F. Supp. 3d 210 (D.D.C. 2016), also challenged
the USCIS’s denial of a petition for immediate relative status for a noncitizen spouse under the
AWA. Id. at 211. Plaintiffs in that case brought suit in the District of Columbia even though
they resided in the Eastern District of Virginia and their petition was adjudicated in that District.
Id. at 213. Judge Hogan transferred the action to the Eastern District of Virginia because
although plaintiffs had named certain high level officials in the District of Columbia as
defendants, “the Complaint d[id] not suggest that these officials had an active or significant role
in the matter and, at bottom, plaintiffs challenge[d] an adverse agency decision made by the
USCIS Washington Field Office in Fairfax, Virginia.” Id. at 213-14. Plaintiffs in Pearson, like
the Plaintiff in this case, also argued that “the USCIS policy underlying the agency’s decision
was issued by a senior official at USCIS headquarters,” but Judge Hogan rejected this argument,
holding that “even if true, such ‘attenuated or insignificant involvement by an official in the
District of Columbia does not support venue here.’” Id. at 213 (quoting Aftab, 597 F. Supp. 2d at
82); see also Sierra Club v. Flowers, 276 F. Supp. 2d 62, 67-68 (D.D.C. 2003) (finding that
private interest factors favored transfer where there was no “evidence that federal officials in this
forum played ‘an active or significant role’ in the decision to issue the permits” being
challenged) (quoting Airport Working Grp. of Orange Cty., Inc. v. U.S. Dep’t of Def., 226 F.
Supp. 2d 227, 230 (D.D.C. 2002)). The Court finds this reasoning persuasive and equally
applicable to this case. Despite Plaintiff’s best attempts to argue otherwise, it is clear that the
claims in this case arose in the Southern District of Florida.
The remaining private interest factors are of less importance in this case, but the Court
notes that they are either neutral or also support transferring this case to the Southern District of
Florida. The Defendants’ choice of forum is the Southern District of Florida. No showing has
13
been made that any potential witnesses would not be available to testify in either of the two
competing forums and accordingly the Court need not consider the convenience of witnesses
factor. Greater Yellowstone Coalition, 180 F. Supp. 2d at 127. Even if the Court were to
consider this factor, Plaintiff’s argument that it favors retaining venue in the District of Columbia
because this forum is more convenient for “the policymakers who drafted” the policies at issue,
is unavailing. To the extent any witnesses will be necessary in this case at all—given that it is
brought in part under the APA—a cursory review of Plaintiff’s Complaint shows that far more
witnesses would be located in Florida than in the District of Columbia. Additionally, potential
sources of proof—to the extent any are necessary in this case—would appear to be easier to
access in Florida, where the events at issue took place. If this case is eventually adjudicated
solely based on an administrative record, that record presumably resides in the Southern District
of Florida, where the adjudication of Plaintiff’s petition occurred, not in the District of
Columbia. See Sierra Club, 276 F. Supp. 2d at 69 (“The location of the administrative record . . .
carries some weight in transfer determinations.”).
In sum, the balance of the private interest factors weighs in favor of transfer.
ii. Public Interest Factors
The public interest factors also weigh in favor of transfer. These factors include “(1) the
transferee’s familiarity with the governing laws and the pendency of related actions in the
transferee's forum; (2) the relative congestion of the calendars of the potential transferee and
transferor courts; and (3) the local interest in deciding local controversies at home.” Greater
Yellowstone Coalition, 180 F. Supp. 2d at 128.
The interest in deciding local controversies at home is the public interest factor of most
importance in this case. The parties dispute whether this case presents a local controversy. “To
14
determine whether a controversy is local in nature, courts consider a wide variety of factors,
including: where the challenged decision was made; whether the decision directly affected the
citizens of the transferee state; the location of the controversy, whether the issue involved federal
constitutional issues rather than local property laws or statutes; whether the controversy involved
issues of state law, whether the controversy has some national significance; and whether there
was personal involvement by a District of Columbia official.” Otay Mesa Prop. L.P. v. U.S.
Dep’t of Interior, 584 F. Supp. 2d 122, 126 (D.D.C. 2008).
For many of the same reasons discussed above, the Court concludes that this case is
predominately a local controversy that should be decided in the Southern District of Florida.
Plaintiff resides within the Southern District of Florida and Plaintiff’s petition was adjudicated
and denied by the USCIS West Palm Beach Field Office located in that District. See
Mohammadi v. Scharfen, 609 F. Supp. 2d 14, 19 (D.D.C. 2009) (claim relating to application for
naturalization was a local controversy for Maryland because “the plaintiff resides in Maryland
and has conducted both his fingerprinting and his application interview at USCIS offices located
in Maryland” and “the plaintiff’s application for naturalization is currently pending before the
Baltimore USCIS office and officials there are responsible for adjudicating his application”);
Sierra Club, 276 F. Supp. 2d at 71 (challenge to permits issued in Florida was a local
controversy for Florida despite the fact “that the controversy ha[d] a national aspect,” in part
because “the decision-making process up to and including the final record of decision took place
not in Washington but in Florida”). Additional facts point toward the local nature of this
controversy. Plaintiff asks this Court to compel action—the approval of Plaintiff’s petition for
his wife—that would occur in Florida. See Abusadeh, 2007 WL 2111036, at *6 (granting motion
to transfer in part because “the action that Plaintiff seeks this Court to compel is one that will
15
occur not in the District of Columbia, but rather in Houston, Texas.”). And, although it is not
completely clear, presumably Plaintiff’s wife would reside with Plaintiff in the Southern District
of Florida if granted a visa.
Although some of the errors Plaintiff alleges that the USCIS West Palm Beach Field
Office committed in denying his petition are in line with nationally applicable policies laid out in
USCIS policy memoranda, there certainly does not appear to have been any “personal
involvement by a District of Columbia official” in this case. Otay Mesa Prop. L.P., 584 F. Supp.
2d at 126. It would also be a stretch to conclude that this case is one of “national significance,”
Pl.’s Opp’n at 18, simply because of these memoranda. This is a local controversy, and the
Southern District of Florida’s interest in deciding it locally weighs in favor of transferring this
case.
The remaining public interest factors are of less relevance in this case, but if anything
they also point toward transfer. This case is governed by federal laws, of which both this District
and the Southern District of Florida are equally familiar, and the parties have not presented the
Court with any evidence as to the relative congestion of the calendars of the two Districts.
However, the Court notes that the fact that the previous lawsuit related to this petition was filed
in the Southern District of Florida indicates that venue in that District may also be appropriate
for this action.
In sum, the Court concludes that this case could have originally been brought in the
Southern District of Florida, and that the balance of the private and public interest factors weigh
in favor of transferring this action to that District. Accordingly, the Court will exercise its
discretion under 28 U.S.C. § 1404(a) to transfer this action to the Southern District of Florida.
16
B. Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim
Defendants have also moved this Court, in the alternative, to dismiss Plaintiff’s
Complaint for lack of subject matter jurisdiction and for failure to state a claim. Defs.’ Mot. at
10-27. Because the Court grants Defendants’ motion to transfer venue, it will not address the
merits of Defendants’ motion to dismiss on these grounds. Defendants’ motion in these respects
will be denied without prejudice to it being refiled, if appropriate, in the United States District
Court for the Southern District of Florida.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to transfer this action
to the United States District Court for the Southern District of Florida and DENIES WITHOUT
PREJUDICE Defendants’ motion to dismiss Plaintiff’s Complaint for lack of jurisdiction and
failure to state a claim. An appropriate order accompanies this Memorandum Opinion.
Dated: February 16, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
17 | 01-03-2023 | 02-16-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142577/ | .
‘;‘96
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hsaorobloao6. H. ahopQmr&
OomptPQll~rof r&l10 hoaountr
Aurtln,au8
Eonorable(he.
%¶e
the above quoted rusolutlonis in oonfliot
with aetiatn prori8ions of the Comstltutlon
1Laitingthe 98~ and ~0aunOratioaof a atOt
8enetor; also, as to uhether a State Sonatop
u~‘-dmv an expense 8OCoud for his expenses
iaaumwd ia c-4 m his 6eneml duties
as a Seaa$orr betveea%he sessions. fhir de-
pm-t desires JO~V snsveI) to the'sbove
question before roplrlngto tb lottea pra-
sented by Eon. Rob Barker.’
Sekotlon
11 and Section24 of Artiole XIX of the cozp
stitution of faras nsd, respeotivelt,ss follarst
Section 11. *Ewh Xouw may detemlne
the r'drs of its ovn prwoedlngs, punish WR- :
hers POP disorderlyoatduct,and, vlth the
oonsent of two-thirds, exrpel
4 member,bnt
not l seoond tI.nmior the saw oftense.'
25. !%UbOZ'S Of th0 b@lStpn*
aeo)i!?!k
~~shsllmoelve from the publie Tressnry (Lper
diem of sob lxoeedbg $10.00 par da7 for the
iirwt 120 d-8 of eaah sessionand aftor that
not lxoeeding $5.60 per dar 50s the rem&id09
of She seuion.
"Xnsddltlonto the pg~diemthemembers
or ewh &use shall bo entitled to mileage in
going to and l%eurn~ from th5 seat of ov-
emmeat, vhfoh mileago shall not exceed t2.50
for every 25 Piles, tho distance to be eoni-
puted br tha nearest aad post &ix-eat routo
of tmwol, fma a toblo of distalWJ PreWrsd
by the Ccm9troll.e~ to e&oh eouaQ's4at now or
hererfter,tobo establlshed;~po am&e? to be
entitledto nllesge fea Uy'arhn sospian that
may be acrllo6vlthh one dryrafter'%?esdjobnt-
mea tof l r e g u la ro r u&Lled sessio n.
The question presented by 70~ rep~ert has never been
before the CollrtsOS tuas. Our research has not disolbsed say
-80 in amy juphdietion outsideof Texaa involving the 8lloUm0
of e-08 to mm&ma of th4 Legislatws betvssnseosionsexse9t
a mlgien $0 &PS of e o~oial aomlttee chargedvith dxtrw
Ordlnr, dutIe8betwoos sossioms. m %x88 awe of Porn11 v.
K4,l 7 3.u. (2d) 786, W~~S8W~CQura I* rejape$~~-
tloe ot Ws llae of oases sad wlU be subsequently not&.
The mat of emeases to uaabers of the bgiabe,
eo nomIne, Is not peohkbitd w the OunstItutIon of 9~~s. It
T is roll sottlod twt sa lppmp~laticm to wnben or th@ l&g%*&-
ture u&or, &ho guise of oxpensor 18 lavalid If Ia m&lftr t&e rp
propri~tloa ropnsents rddftbasl -ml-, w solow, OF re-
ward, or 98~.
m of ths states have ooMt1tut1olml pFovl*;~ &
stmtlall7 the um &a tho80 of tbhu8 COnstItutIoa,abave
quoted. InOcm8tlu~thUO W'WfSiOM, thenhasbeenes~blisb-
ed a dlrtinotfonbetWee pen& Up888 8ad le&sbtive ex-
pensos. Bern the definition th8t leg.IslMiveexpense* w
thoso neoesury to enable the kpisht~m to -ply pepform ita
I\motIoM" the dI8tfltOtiOB b&YOM @WSWd ~ws S& logisle+
tloe expe~os has AOt boon olotwlyd*aVn.
ra I* 8 kawa hot thal nnauou8 expeM08 inal&& to 4
8 susIonof thewxasLegislrtwehn ~hl8tooIf3al4&llok~
and pal6 out-:
oetho m~+le8 sa4,9ant~en~ oxpeasooppal$g&ouee ~-
by uoh Le@~l.Miure. Alro, that the rlulies sad erpeaD08Of
ployeeslagsged in 0loslagWt the r0* OS s 8essIon,uut in
aare of the Legislative halla and 0eNalu 1410&tlre busfae88be-
tween sessfons,have been dlrnod ud rmld out of thI8 apprqwfs-
tion. And that ths oxpamm of mooId loglslstIre wmWttee8
ruuotlozLfngbetlmea sessions ,r udw lssI& Jment
sr a th eLe g islo ?mu
wh f le
inseuIo n, h a veb eeao ll~eda wlp r id.
The ollwsaw R080lUtiOn10. l& of flft~ De&-
la SOnStO
lrrs per mth to O&Oh SOBstOPfo rltwm*IS SM othep exp0ase
between ressions IS tha ihUt Ott-t w lIthe? the tie O? the
SellSto to 6llW urd 8UBhWiU th0 PSmt Of OXpO.WeS Of t&Is
lmturo. ot oourso, IS ValLd foa the mmbeu OS ths 8oMte, 8
$fmilM sllwsnoe vould 13kWlU be *olfd rot msbers of the &MO.
:.
We -Oh l 4 801 81 ~ I8 Uhf* 9 W P lOXf4 y tk r Ylth
aotto& roll settled $rlaoiplerla dd. mrlslcrsl of N&to
C~$ ~:tu tlo lwnot
M grOnt* but 1Imitat1ms of l8gI8laOIt*powop
& *ho~dnotbe sonstrued tome0 lidtrtImsbopad tho&role*r
m. ph0 oolvtr noognlse thstths 1 I*htfm Wt,
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*he CoMtltutIon. w coll@t1tut1w Is l nst?alBlag Inst-t
& tb emts, -tiered 80 d001~0 the hr, Ore m-4 to,sub-
,ect &&llu&@ rots of tho Legislstws to aoMtital.oMl touts.
E~orable@eo.B.8heppa~,?40 4
suuhpoworthe oourts merelydo&are in favorof
In exeroislng
thsmperfo~ hv, the Canstituticn. The Legislatu~ cam& by
the use of vords prevent OS to the objoo$ aad
judfol~ lnqulr~
sffoat of a stotuto#
nor aaa the ~gislatursby a deolorstian
trsnsfom a privatebenefitintoa pub110uss o, Imweaso 00%
Dematlonby*deol8ration thatltva* iateJt&d for oxpenms.
doolamtlcnof ?aot*18 subjootto the test of
A logislativo
reascv~ and judisial knmlddge.
Tha dIstImtIonbetvoon14lrlatin OSSdpOlP- /
smsl expoaaeIs to be obmme& S&o pww to the formae
fnhsresIn the legI*latIrofunotlan sad nay be exorsise& The
po~orto allowthe latter does not so Wwre and mf net bo ex-
erslsedbr the Legl8latureuoevt to the extantof aonstltntioa-
al porBlsslon.
The Oonstltuticno? Tom8 does not expresslyimpcuea
up% tho paver of the Loglslature
limitation to provide for the
expensesof the legfslatiredopartaent,POP upon the power to
provldsfor tbs of?Io%aloc personalexpensesof members. 2ho
objeat of constmotlon,hwover, as applIe4to a mitton Gonstl-
tution,Is to g&tooffoottg~~tho *teat of the peopleta adopt-
ing I$.~Jk tha QUO or-all*rqOa UV8 it IS th0 intOa* of fhr
low gives that IS tom bo oaforaed.
Wo are uwlJ.llmg to glro to I)ectlon21 of ArticleIII
of the CoastitutIon
of Texas, a&opted by tho poop10on Ncvamber
4, 1930, a rtminod or subtlema&tag. The lleotorato In ntlfy-
lng and adopting this protisIoa, whIohgave it lI?e,ocnslderod
the provisle~as tho laagaage fairlylmorts.
tifor to t& rdoptian of 8eetioa 24, on Uoveaber 4,
1930, the CoMtltutIonsuthoP18ett 6ampeasatlorI
to moube?8 of tho
Legislaturenot exam IIVO D0lJAr8p0r dry far th0 first six-
tr days of the sesoIon sad Tvo Dollma per dar for tho reminder
of the sossloa. This vns 0 amwMat1oDL, 8~~,rovar4,paj. In
sddltlon thereto,~tJw mnb8m uers alloved miloago oxponse in
going ta ahad~rbtk the soot of gw-*. Is other oxpon808 uore
expre881~ sllwed. w tho s8oMDsmtIn1930, ths osmmmsatloa
yea ~~t0a~rdIorofMt~o~~~~~l~r*~P~~for
th0 rit8t 0a0hmdred rad tuenty byr of eachsessionand Piro -
Dollarsfor tho reminderof tho session.Again mileageexpense
~8s authorfred.lo otherexDeMa expressly vas.
b #e ?ollwLal;uuws the Stdo C~tItutl~8 dlmd
membersof the Leglsloture8 oertti UWcl, Ot OW tion, or
Eouorable600. If. shapm, Pago 5
per diem, and mlleege expense. Ths StapremsCourt of ths State
f.nor& case appliedthe 8axlmm $*presslounlus 08% exalu8Io
slterIusuvl held that in vie??a? thr tItutloMl provlsIon
for the pqment of expensedl4ye the~Ywa8 a neaossaryiarplioa-
tlon that no other personal expenses aould be grid. State Es
rel Orl??lthv. Turner, Xl: Ksn. 755, 233 P&o. 5lO; DIXOA Y.
Shav, 122 au. 2ll3 251 Pee. 500; Stat0 1. Clsusea,IA2 Yeah.
450, 253 P&o. $051 3oonesv. Hoas. 285 ?as. 205.
The Tumor 0180 Involve8sa allwsnoe to laah msmber
of ths LegIalat&u o? *?I+0 Dollarspex day sxpeasemane9 for
laah &y of q Regulu or Speolal3esslonof the Lsgislature.'
The allwonaowas held invalidas boiagthe paymentof perronel
expenses8s dlstfagulshedfromlsgislatiro
expenses~
The 8h+V 0u.einvolved
allowame*s
to tbam9&ers o?
the tiglrl&tuM ia pajunt of tbo hotel room rent az&d-8l.s while
at ths cspltalattending a se8slonof the Legislatum. It was
held Invalid.
The Clausen @MO held Invalida mso1utlon of the %ause
of Repm8entatlves allovIng e&oh &abet Plre Dallars
e4 ma se~..in~iS
attond.4 a las*lan of tke
la the tones v. Xos*~uasertho @proms Cart of Ore on
held uuaonstltutlonalan approprlatlomof "the sum of Five Dof -
lacs pep da7 &wins said lsglsl*tlve8essIon to eaohrsrber of
aald leglslatfveasse~l~ for the paymuxt of his inoldental
ex-
paaser. The court 8aidr
"Themllod llmftrtlaa agkiastpersonal
sxpenseshas no lpplloatlonto oifisial or
ls$islatlreexpenses."
The Omgonaorvt refusedto follw the Souththota
aam0 of ChMsto~ersonv. Reeves,Ante, ohIch vi11 be retlwod.
~~~~~~Imr
hshttm ct.R-W, 164 SLPR.254, 261 S.-V. 624,
tii oourt denied the ralrdft~ of a st&tUte8PptOptl8tfng &to tput-
dred ~~OP$ to WCh kSdHU'# Of th8 b#iS&t'3lW tot -808 in-
-CO& vhfl.g attemflagan ex%rsomU~ sosslon. It uas dealuud
br this eourt~
Wkd0tabtedlyeach of the Xouses gossosse*
the pwor to doterrlnr Its XLoaesUV Msesfi
but in dofrq so It mat pmoood,tithJn aWstitU-
tied rsstI';Oti~$, rpd 18 nOt petitto to as-
~ononbk 600. H. sheward, Pago 6
mgamS exprrrra~stittttlopal,pratrirlon8.
The
Coartltutlonprotidor in expllaltaad aoaprehuk-
8iVO tOl'8t8
Vhd m-t8 8hd.l be EadOto Bea-
bon. - pl’OViSfOa in thi8 Pa8JWet doe8 XlOlot
expressrrulj s grant of povev, but it plsaes
5 fytatlon upon the paver of the geaeral assembly.
. Nash Pm480 may provide aoawenienaes, suah
a8 8tAtlO!le~, pSEOilS, Ink, telephone ud tele-
graph, rad other things for the me of the mmberr,
aBd pay for une out of oaatlngent expearer,but
it 18 quite uur#e+ thing to lttea 8p t
to mke M
allemaee of fund8 to a wmb*r to be uxed at till.
the 18 the pqmBt of a 1egitiPute lxpSn8e, uid
the othssls~~lorruroepl~~stthe dlrpassl
of ths mabef to Be used at &fr own dl8SPetim SAd
Vi=. b0 18 & MfwDt Of MOOUSM -Sol O?
the hour0 it lf, aad ththO8'18 OB SllOVlUlOO t0
the aeabbM z 8pihe of '& provl8loB of the tori-
8tltUtiOB t0 thS SOXltl'S~. l 0l*” @ll@lS~iX OW8)
-80 08808 aM &‘OUAdOd m t&O pl’O~8ttiOIb that O(#L-
rtltutlaul provlslons,rush a8 those of %xa8, flxfng the 00-a-
ratioa of mube~ of the X+glsla$~~~~iolr
their remises, and al&m-
(c,b7 ruaesullf~lapli~tl~ %sposoa lSaStatloaupon the
~e%%e kgf8lsture to allarrpenaaalexpensesto ftommberr.
%Ee expre8slsala positlvoafflrm&lve tenu of the will 01 th0
p OOp lO th a t th e MabOM Of the b g f 8h tUM 8h o dd na etr e l p er
dlu and axilesge axpenseirplLe8the nsgatlversgaz+lsgaddltlcm-
al peroonalexpeBse8.
The 0omelStlre pwpo8ftlon t&t, noBethble88,legi8la- J
tire expeiuos mag be alloved, appear8souad. m8 doatrhe ttmt
the sutholrityt0 tilOV legf8lst~vOexpense81s MOOSuPfly iqrsfOd,
or, that sush e%pOnso~lrneaosXMily allowablea8 lIthePsntip the
leglelstivobraaeh of go YSXVWBt, ShOtidbe, iBOpZrO~~OIb,SeSbUS-
17 guamledlest it taaaatlan lva8loM of rmdsmsntsl ac3B8tltIltloMl
-8.8 Md FS8triOtiOlU. --
I,SoI%t?SSttO the OCMS th@S fU'BOted,8FS th. SSSOS Of
Qhristophewoa v. Iloove8,44 1.1).634, 184 II.Y. Uk.5, md Sarogtlo
v.asarboPough,l6oS.~‘x47.
’ l.initth0 ant Of w b8&$8btllX'Oto PZWVidO ?Ol, th0 @X&WlU68
of its aaebeza, au4 held that the OXpOn80 a~lovancova8 not
"oampea8stloa,but, on ths other hmd, that it pvldes 8x-
pen80 mm07 foi a porfeotl7 logltlmatepurpoeo. Two of the
aeabem of the 00U8’t
di88aatsduzd in VPlttOn opiafonssdo~ted
the tlevs np~se~hd in the aa8eswe have dlset8ssed.
m th0 8Oaoad MS0 aentloaed, the 8U~Iypb court Of
b~~~l.lor~ldura~prop~~tl~oflhro lQndrodtiaixt7
zk db afo rla o ha O& #Or
Of $ h~~i8lbtUM
0 U UJWB80 IIIOM for J
th e8esslo a .fh0 bra18 for the de6islaa 18 okted br the aawt
as follo~st
to lie the
V88 8nde ror a pMper pwpaso vlthsa #e ,r%
81OM Of thS hI%Stlt~tlOl%J + S l,I (Nmpharfr
0-4
The aa808 of Stab R rd Weldon t. %wn8oa, 142 9~.
221 S. Y. 491, 1. fea7 ve falua, 157 tena. 222, 7 a,.W. (26)
mdPesy
_- to Grshsa,35 3.W. tZd)568, a?-ebythe Su.pm
cowt as ma88e8seer
Who first em0 iavol.red
an ammprlatiaa of an, lnmdred
Md p%fty DOllwe fO8 UOh Of the m8QbOrS Of the k#$i83.&U?S *iOr
rtanogmpbla took sad othss aeaossuy axpen808* durl8q a 80881olI
9 hs
eeeea
01d lnr
80 a lved
a 8
lp p r o p r la tla a
R ndlwdM d P lft7
Do lti Se?lnp 0B nsto ea c of
h th e
wr8OM ?OS pO8t StMOplghL8 b%r~r u8d OthW MS8SU7 OX-
-08. The $hl oaso tir81tedan Cpproprlatlan of the au8 of
oae JIuuAsed Jbllarr for rteaognphle hire aud othoz oxtrrarblnerr
offlalalexpeaaes %eees~ lnuwred b7 eMh mabet of Ua fng-
is&two at thir 0xtm 8essloa l l + ia eoamquewe of tholr dutior
a8 ~18btom, aad thekgi8lature dealareaa8 a faattbte-rJ
a&bep of #li badJ ha8 expended,8k thi.8 OXtn 8088iOn, St lSS8t
me w-t a&v* *et ot* fob the 0ffiala.lumn.608 ab0Vo ~tl~ed-'
Homnblo We. 9. Saeppard, Page 8
The first two aases vepe revlevedbp the aourt in.the
third ass0 ss ?011ol?8~
'.ln the ZharrOn 0a8e
It ra8 held (1) that
no approprlatioa could bs aan8tltutlonsl.l~msde
SOP M lBaruse of 8 0o8pen8at1on to 8e8h008 of
the ~OaeMl asse8h3J;ud (2) th a Mtlp p F o p F la -
tia for
a offlelalOxpaNeS, *a di8tf4@8bd
fro8 oewea8atlaarybe oonstltuil03a~~~0.
. St6 88ses differ ia thlra la the Them-
soa au0 18 was ae8eeeded that the avpraprlatioa
was in hat for offleisl sxpaue*J irathe Rokan
WO it YU held that the lppremwiL~, while
zumllmlu ?OF offialalupamos, wa(LIfa lffe8t
fOF~tiOEJ ahi b0in(l thOdOk~&~8tiTO
?*a$ in lssuo.*
The approprlstfoa of One Eundredand Blftr Dollars in
the Thoarron a&se w~8 uphald; the sppropriation for Seven Ihrndred
and Nit7 Do%lur in tbs lolpa ass0 wss dealared!avg&" VS8
the lp p F o p r l8tla
ia th
a eGnh s8 ea se of o nea ndr ed for
th0
-0 de not eoaaoivetlut the eeurt (ta the
~~8OllSSSO)i&UtidO&bJthiS SkwttO
aBBouaeo the rule that the Ll@slatuM e#tJtid
b7 the uao of totis prevent judlafslinqulqr
a8 to the objoet aad ofroOt 0r a rteute, OF
thtthe&sglslsturs aouldW8 doolantion
trsasform a prlvste bbaeflt into s prblla use,
OF lnorea~ aamperuatloaby 8 doalwsticm that
it VM flLtMdOd ?OF ~9~18e8. %O doUP 18
~qubed tOlaQkt0 tb 8Ub8tMOO ubIOffO8t
of an art, u wall u to it8 lottes, when ssll-
ld upott to btemine uhether the Langl8latwe
tpu&saeiSded PS8tSSintS.
tba aanstltutlo8lrl
l l 0.‘ ~(?mentluttaU ln8utiam O'W8)
IB theOraha~aau it v&s saldt
"In ?u7v.%olui, the 8ppro9rlatlonvas
4750 far esak 808beF for 7 WSJ la th8 lnetaat
eMSO th0 ~JWO&Wtatti~ 18 100 ?O? u d878. -
Hoxtorable
@00.X. Shevvud,?ago9
p~~FtiOXI18 9l’SOti~~thO SW. ti th0
SormeroueitrcrsheldthSttheeowtemxld
A08 x'eSronSbl7UsmW that eWd%uld OVO- W
be? of tho L@Slatime had lnsurrod offlo%al
espense8 of 4750. Neither aa~ we rulrronsbly
a88U thSt in this 0880 UQb MlBb@r b3UFlWd
0rf10m arpuu08 0s ss rrrtcrh u @oo. *0m
tho1m0 Smplopd, it18 rppmwittbat
the kglrl8ture did z&at undertake to &etomine
the wet amataut enpeded br emh somber, fop
oftia~l wpmuoa.
5oh6~0h0~080r0~o sk~17naa(prl~~utd
PW M-8ffb-8 th0 right 0s 888b0~8 or th0 btg-
islst~tsk~-~~~ror,ur~ofr~a~l
-808a8 ths78a7lOgitirk~'~ Ilobe
SSOOFttli.MdMd dotemlaed b 8Wh FUrOBablO
swthods as it8 risdCkRmay 8UggO88. h appro-
priStiO&Of q WI&
8Ub8tSlltiS% ?OF that
9UX'po80, VhfOh does IhOt hW0 ?OP it8 bS818
some roasonabl~dorinite dstomlnatlaa of the
amount of off lelal expensesinewmad by the
roveral 8atbera &a08 not matIdy tb aoadl- .~..--
~-totleSialud;ticion, and for that FoSsOn rra-
BOt be sustahed. n
The deetriru Of -80 OUOS 18 that Up S~FOPFf~tiolr to r/
8d30r8 0s tb0 ~f8~t~ i8 0O5k8tftotia OB~T if fop 0fri0iil.
OF loglslatlveexpsnses~ 8!bt this 18 SO m8t bO V181blO bl the
rppro9rlatloa. hdbhl8beO#r800? the FOSSOM~~UO~SOfthrS-
a o tmt u& dth e lwth Od 08JtfO7 O
to
d l88UF Oth e UK9 M SO paid t0 b 0a
legi8lStlto
expemo.
InxSllv.Blaa,l18bo. 6oL WthS 8uprmS 0oUPtof
of an Aot do8eFibd
AlSbSsS,t&e aorutltutionr~i~ by Um OOU&
a8 follovrwas underrttaakt
_ ~.'J!hO
&c$~e.e-*
pwpoFt~ to giveO&Sh113t
boy of tImk(lslat~~~~l~~, ?KktaXWod-
a )4.00 per day, for 'na8oaablo ~08 ia-
0~~3~3 b7 hirbwaaso ersndwuX0 laatt~
of u&O LeglSlstwO.'Vo treat
upon the 808810nS
t&l8u latended to aovorpeF8a~ MD.-- la-
sarred ln the psrferrrass of logblatlve dptie8,
- ~bia -808 u9 u0380nted oetwm~e
yopk, telephone rad te~e(IFWh 80-l-1 ebrk u-3
Mdlike -8."
holding mah Ast uneonstit~tioBal
under 9Porlslan8of
the *lab42 ~iO?~titU?+Ut 8b8+SFa+ al P88&WOt8 80 thO80 Of th.
TOXS8 bA8tltUtlOll, tb0 OOUFt 8UQl
~ormont&ahdfaaaat~,**triinklt
em be uiol7 w&d, this seotioa of the Canatltu-
tioPb8bsaa geneM&l oon8tl%wda8 flxin#am~
.fsom leg18 tit0 pever, tho n$ter
aoaguucrtlonud~o8llorurcus
to Le(lislator8 vhfli in atten&sme at b@shtire
80881088. such has beea the true17 pm&
censtntaticm a? sidlar aonstitutiond oas
l8 other at&o*. (mu0 r0I.xotl olt8tianserau-
thOFitfO8) fh.FO 18 8 di8tiWti0l%,tlwtOtOuz,
0oMt1tut10n boim0.n ex9anresof the Legl8la-
two, aontroilsd b7 the legislatlvobody, 8mi
OX&lOli808
b2Ul'Md b7 the Z88SbOF OP hi8 OVS lO-
COWlt &Ad at hi8 di(laMtiO4 Pithin a Buiara
llmlt;."
Gallarnovc Latg, 243 Il.Y. 7l9 S.~mlwi ai appro*la-
&ii tb ~6h tb88b6~
~6sth0 g-a a0808bi7 88 rtai~t
9 4 b 8h 80th~ o r th 0 g 01 1 0d8~08x 34 l l +
shall bo w& hir aotiul neaotw me8 In-
eurredwhile ilkattendanao at a 8088&X& Of the
Log1sktwo, w&S& Mull tn no esm wood @CO
for B a y
r e g u la
lessl5n.
r aworn itemimd elriu
therefor &all be file8 vith the Btate Besr4 of
hdit8 6id th0 p~0Vi8i~418 Of OhrgfiOF25 Of thO
Code &all bo lp9lleablotkereto.
The supron Court as JQ- eeted the a99~9l-t~~ w-
011,the ropositlan that it cante89la peFumal expen8er ana not
1Oa8lS ?ire ex9an&oati thez'eforowuatad to tiltlon8l a--
tlon to the 8e8ben of the Legl~slattwe.
l-7, thOM i8 thOliB0 Of 018.8 FO~VO8OXktOd
90x88 aaso of %!errellv. ring, 14 8.v. (td) 786, and -88
Cone, 168 a&.. 989, 272 8. if. 678, vhfah uphold en albvauuo of
erpanaes to spesm legl8latln Qomitkos mtisda# botveom 808.
siaas of the L6glslature. It 18 ObdOU8 mt th0 -08 Of -8.
hm of 8U& 0olritt00 are 0friOW et lwirlativo oxmnu8. The
ndp8 a88igtmdaII;engagedln aatlritlesvoedlfarl7le6ltiative
Honowblo @eo. H.Sheppard, Pago11
and OoeaQq a 8tatur dtfferent from 0th~ asaber of the Leglrla-
tUM betveen 8088iOIi8.The ju8tlflOstlOn iOF 8uch expensesllov-
moo, axpre8sed by the court in the Forrolloa88 88 fOllOV8,m-
ifO8tly 18 ZlOtappllaablet0 sA ~lol?aAc;,betveea8e88fon8,to
all asmbOr8Of the kgi8latUW# OF t0 the 8eerUte, BOt VU8tOd Vlth
SnSlogou8 utraerd~ duties between 8e88lonrrr
"8inoelegislativeaommitt~8 of lnqulry iii&-
tarertfgatfon,fumttoaing at points Fe8wtefror
the Capital,or fuamtloai.ng at tho Capitolbetvaen
80881OlIS Of th0 ~JJiShttlM, -7 b0 088eddal to
tb Offee8iVeeMPOt Of the 8tit0'81egiShtlTe
Pwer, ve mart iaplr power on the part of the Leg-
iS~tUF8 t0 1(Ht th0 lKbOO88~ ~~IUO8 Of a~&
aaaitteer. POP, Sin00 there 18 no sxpresr pro-
vi8iOn to Wet 8Wh OXpQII808, tht8 gFO&t paver of
the State -- intrustedby the people to their leg-
i814tOZ.8 -- vould othemrlsefall. This oould BOt
have been the intent of the fmEmF8 of the Con-
8titutiOL
"It i8 8MifO8t that 002td.B ~&tUrSS --~
8wt br-Wd*~W the state, in the wa7 of legis-
latlvo OX$WUO8, OF tke graBt of leg$rlative
90~0~ Oodtd awer bo effeatuall~exeral8ed. So
one voul4 que8tfoaleglslatlvedfrbursemntr for
caaiortablea8808blf ha118 aad 008dttOe rooms,
or for alerk8,rtationery,eta. Withfn tho 8-0
oategory of legltinstoaxponsesof thisLegiela-
ture or of either hou8o Cm8 relmbursemmt to
BlWEbeP8 for actual SxpSnras reauonsbl7ipouFred
In order to performdutier devolving01)Uul7
authorlsedeOmittee8 of the fagislature,or of
either house,Vhea ruoh aommittm isembers are
aalled to other points than the Oapitrl,or vhen
oslled to the aapltal othervl8ethan dwlng the
8088iOSt Of thCb~~8latUFO.'
Apart fmm the ab8traat8tatementthat JIersonal expen8e8
are not alloVablo,.rhbnar legirlastive
expen8e8arc, it 18 obvlou8-
17 lmposalblefro8 the80 oasa8 to di8uernpo8itiveand Lnfslllblo
mles of l.aV OotitrO~l~ the qWStlOn bt hand. ThON 18 obvioU8,
of s-80, a rrluotanaeon the Part of a MjoFit7 af the Oo?J.rt8 to
upbla gema expenseappropriationsto ~OEBOM of the h&81+ -'
turn ova -0 m -bar8 are in 8088fOIt 8.d .dOUt the bu8heS8
of aotuslly9a88i4 laV8.
IIoaowbleQeo. 1. sh@Epwd, ?a&r 1P
.
loaoribk@6o.x. aheppard,?4p13
1L88UAtiti1J this ViMV i8 pounded UpOa th0 hf8tWiMl
&ad OOaStitUtiOa8% OOaOOpt Of 8 akt0 lOgiS~tft0 OffiiOe, tO-
gothor vith the pwoti6a.l vorkla#s o6slstituth9n8l
of a6thods tha
vith wfuoaoo thewto, aad the disoemlblo volght of the aasos
In mipOortof such conoluslon.
JhRbW8 Of th4 LDgi818tUW Un paid Oa 8 lSOSOid
ba&PnOt U$aUr th0 -818 Of thei? k1988 Or OifiOO. m &%7
not b0 wrbOFs Sf 8 SllSSO~ 8088iOll. This NgeOSt8 thS fWd&-
W!btSd id448 th8t lO&Ji8hti+O SOldOOS iOl, lfhlah O#&BOXkSatfOil Vi11
bo~id,aad lnwlntlontowhlehupmrosvlll?m~l~,m
th OU
lO%tUl.lYP M deWd dU?inp ll S+lSiOl%, OY iI& OWtiOa Vtth
SmOffiO &SttOW w OUt Of Md 8StOd U.&WI &IF'- a HSSfOPI.
TO OXtMd tb 8lbVSllSO Of -00 t0 ti -8bU8 b+
tW4Ul 80881OM WQdW8, U a bSSl8 thOWfOP, 88 SXtOwlCia Of #.
8OOm O? lO$iSl8tiVO dUtiO@ to point of
holdlq that I&gisl8-
m
tars, who MJ not bo mombom of tko next Legislature,hare geaoral
lOgistitiV0 duties bStVOOn session SUfiilofsnt Pnd of such 8 neituxw
a8 t0 affO?d 8 brSi@ fOl’ %ObKi618tiYO OXDOllS, dllOV~OQ8.
of the ruthorltlosdlsaussod,bnd of fuad8aatml ooas~itutioa8l
9ri.Ih3;9101. rad vithout judiefal pwsadeat t6 the actat-, to a.-
ObW Ukd ho15 th8t k6i818tOlr8 hUo dUtiO8, urd Vi= MaiOnr aots
botvoon lo islatlro ros8ions oiaThetisovn iaitlatfve and vlthln
their OVZI f lSOtOtiOa, VhiSh, a8 8 attOP Of 18V, O(LB rifQ?d 8 basis
ior loglsl&lvo ox9emo allovuioos.
Ths aethod of owatloa and mnno~ of opentioa of thr
legisl8tl*oofrio*, by urd vador tho Wlstitution, aoqmls th@ ma-
OlUSt6& t0 O?W rind, thrt inditidwl OX&WllSS Of rrrrbW8 bSttOM
8ossloas mrt bo doemad 8 bwdoa of tha oifloo aad ay aot k do-
slawd to be log,fslatlvein nrtum to tba utont raqiriwd ia up-
hOkUg 8 b & & d lX&BOaSO ~&~JINu~O br tih0 kgiSbtUW fOP lip&
purpo80~ As deolawd by OM oowt *pub118offlao 1s Woa 8ad held
Vith th0 ml-t8 ud bUS’&Ofl8 Vhbk th0 bV i-808, urd the h&l’-
dear LW, o?~ybO,f8PbO~ th0 WN&JMUtiClh dbJV.d il3 W SSSO8."
It rmst be bon&o ln rind that the 8lhvaWo Of SZDOXiSO8
during lO~i818ttVO 8088iOM, sad to lOgislatiro Otitt.08 ktvua
sessions,u&d othw loglslatl*oox9eImo018 vithout O*pWss WBStitU-
t1onAl pemisslon. 4LIo~i0~8uboo is
tloa tb*t'Su& 0%pOX~S08 a?0 pS8SSSfl Y.ieglslatum
~6MP
dual
RaPorab10Gs0.x. shsppard,rs@u
the IndividualIdglslator)to DPowrlY Dorfora it8 functlcns. It
aUnCtb6 S&id thAti
th0 Of WOStO i&fit&-
mss&orsbetween sessionsis aeoossary for the Lsgislatursto
perform Its funotions,or, for that Mtter,
dlvidualmembers to perform tholr fumtlom,
dssirable,sad tho vlsh ol this d8pU'bOEt,
that it ba so.
aoooss8ryfor tho in-
8lboIt it Yr k
and of t&a OoWts,
N6WofOP, the w-t Of th. qMdI8 UZbO OCllSidOW-
tioa is to bS out oi Sn a~WDPf4tiOa iOr SOati8gMt -08 of
tha 47th Lo@8&two. Xt ay roll k 4oubt4dvhother 8a upease
al.lvvaaooto'the uahow of tha 47th kglsl8tuw after rdjoure
aeat of t&o RegularSossloa,and until, pwsumably rt lust, tho
Regular bearion of t&o 48th Lo&tr&tuw, is @a uponso of the 47th
Logis~tuw vba su4h mabow aw set agdw mj spooial asrlgmsent
from the 47th &~t8~tu?8 U&d Vi11 Wt, in rant ilUtSJXOS8, Ov6B bo
aeabew of tho mlcoudfng Legislrtuw.
It Is thenf'ow tho oonsldorsdopinionof this doprt-
xouw V8Tf an&J
ATTOfWlK - w, axrs | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142488/ | .
321
OFFICE OF THE A'ITORNEY GENERAL OF TEXAS
AUSTIN
NUU9kiAIU4
--
010 5404 of Ve*rraa*r
the motel nhlelo.
322
Bon~rblo 0. 0. 0ro.r . . . Pago 8
"1. What prooolon mhoula bo follow04 br
utd da% evldmmo 8hould be pre8onkd
to air dojmWam8 by meohm or re
palrum ha @nab18 him to ml1 and
mild tit10 00 a motor vehiOl0 oawlz
ba ho188 r.mOO&niO OC FO~OiMin'8
8$a%U8Wy lion? MU& suoh meOhaniO*8
lien ba raoorded 0s owwr*a title br-
fore lb oaa bo foreolow&?
’ “II*Whoa a lien iu8 been properly rsaordbd
on a rrrtitioato of tit10 and our r00-
Or d8 r Or .81tb d laid lien hQ8 AOtibWA
roprly raloamd, may the deperkmnt
P Imua a tibb $0 l pumha8er On hi8 853'
pllertfon rupporti6 by an aifidari)
aado by B uohwio or garage mn try-
lng$ 0 lU 8wh mobor rohlole undar a
mOhanle'8 ltin without rWuirin(thrt
hho prior moor dod lien bo proper17 ra-
l*a.*d?"
IA y’wr ifsa qUO8*iOn you are oosae8zn.& with tha
rl*uatlon whmro a BoohaAlo or l'O&dl'IWAWi8h.8 $0 8Rti8tg
hi8 1 fOl againmt a motor rrhlale br ralo Of t)u mm& You
lakwhat prowduro 8hOuld be follOw.db~ him in 0rd.r for
tha dapartzmat to b8 able to imue a Certlflorte of Tltla
in th aameoftho wr8oa mroh88iIU the aam fmm *aid
ihrnio or ropslrm8i. -
Artlole 16, # 69 hi the Oorretltubionof Tsxae
Vi&m8 a8 forlowrr
'%lO8hanio#,@ZtiraIU and m8terial Pun, Of
story olaes simM hare a lies upon the build-
lag8 ad arkOle8 u&o or npalred by tham for
the valu8 of fbair labor &na thereoA, or mtb-
rlal iurnlsal bhoreterl and the Legl8latur8
dull provide by lrw ior the spoody and ltiioient
enforoownt of said liena.*
Arblrle 5608 of the Rorlsed Civil Statutea roe&
am follerrl
Vhonover any artiolo, irnglomntl,uterdl
323
Honarabla D. 0. orwr . . . PSFO3
or rohlolo Shall be n@redwlth labor and ma-
torlr~, or with labor and without furnI+ng
matorlalby a;nj oarponter, m~ohanlo, artlun,
or othSr workman in th18 State, ruoh oarpmter,
nuohanlo, arti.Sui,or athor workman Is nutho?-
1~6 to r*taln 088w810~ of maI artlola, la-
plSnlSnt,uteluis: or tohlole until the urount
dua on maa for iepalring br oontraot 8hall ba
fully paid off and dlaohargSd, IA oaSo nourarnt
la agroo6 upon by OoAtraot, then aald oarpwtor,
maohanio, SrtlSSA, or other workAaA shall nbrin
pO..MdOA of auoh sttiolo, implunSnt, UtSn8il
or veh1010, until all nasoluble owtomary mad
ua.ualoon1pen8atIo~8hall be peld in full.*
Artlola 5604 of the RSoIaad Civil StatutSa read8
a. followrt
lWhSn po88o881(~1of any of tb proporky lm-
braowl in the praoodlng artiole ham oontinwd
for sixty day8 SitOr the oharger aooruo, ad tbo
ohergS 8o due havo not bemn paid, It 8hSfi bS
the duty of tb parrott 80 holding 8aId propar-
ty to notify th0 owner, if in tha StatS and hi8
real&rnoa bo known, to ooze forward and pay tho
OhSrgb8 duo, aad OA hi8 failurv WIthIn the day8
after 8wh notloe ha8 been glron him to payDai.6
Oharga8, the -SOAS DO holding said property,
aftor twSntr dry8 no t1 0 0 luthorlzod to Sell
are
8Sid property af~publlo aalo mad apply the pro-
orned to the paymeat of Said ohSrgS8, adi'khall
pay over thS balanSo to the per8on entitled to
the aantS. U the owner*a rS#IdanoS I8 beyond
tb Stata or la unknown, the parson holdtAg 8aId
~ro~.X'ty8hSU. AOt ti repuimd to &IV0 auoh AO-
tloo before prooeedltq to 86l.L”
Wador hrtlole 68Q4, aupra, the meohanlo or ropafr-
DPSA,by 0omp1 ing 61th rooedun outlined thenln, may sell
the motor vehi010 to maP 18fy hi8 lien.
8ootlon ab of the aertlfloata of Tit10 Aot oodl-
?ied am ArtIole 1436-l of Yor~on*a Annotated Penal dodS,
ap lies to such a 8itUStiOn a8 outlined Sad provider a8
soP lOW81
Honorabl. D. C. Oreor ... Peg. 4
wWhenavr the own rshl & a motor to 010
;..i8~~~05$i?& tr;i~td+--
r.nS orrod J eDera oiiT?Ta~aZiGi Tiiher-
‘itono.,a*tlr* or b.qu.at~~uptoy, ~rdoolror-
.
the holrr St law and 8QOOiiiOStiOtIby ths hairs
88 to in Who@* nam. fb oertIfIo.ts shall laaue),
or order orbIllaf8el. frm the offloer tack-
In& th. ju4IoIal aal., exoept hopiever,that
whom fonoloaure la had under the tom. of a
11.~ ths arrIdavit of the person, firm, aaao-
oIat!on or oorporation or authorized ag.at of
the faoi of ropor8.r~aionand dIreatIfun oi'tltls
Jm aooordaaoe’wlth tha tars of tha llan, ahall
b. auffloIent to authorize the lssumoa of a new
oertlfloate OS title In the nazneof the purohea-
In line with tha above Quoted portion of the Cer-
tif1o.t. of Title Aot, you aro advlaod that In the sltua-
tion you Inquire about, If the ceobanlo or repairxxanfiles
an affIdarIt with your dapartz~entsetting out tha faota of
tha oroation of hi8 lion and the dlvestl.turaof tltlo by
reason thoroof In rooordano. with the law, you are thezu-
bl authorize& to Iasu. a OartifIoate o? Title ia the new
of the puroha8.r et auoh 881. held by Said nmohanlo or ro-
palraan.
fn your aeooad cueatlon you are oonosrned with
thm altuatlon whsr. an aifidsvit, a. Is dlaoussed in thy
pr6vlour Queetlon, is furnishad your departmmt but It Sp-
peers that the department hae Iaaued e Cortlfloata of
Homrsbls b. a. uurr . . . Pe#J s
Tltl. en thm IIan motor tehl~le, whlah aertiflaat~lndl-
auto8 thab a lien has basn propwly noted on suoh Certl-
fiO8Qe Of Title ?sra ISSU& YOU 1nqUira Whether th8
departmat may isrus a oertifl08ce 0r Title t0 the pulp
eM8er from t$s meahanlo OF ~aragwnaa without raqul.rin&
that the prlOr.noted lien be properly released. Tour ptob
lsr requlr8a8 dstsmlnatlon or the priority bstwssn the
meohkmia or gar8gomaa18lion and the oontraot 1Ias pnrl-
OU8 notodr
V0thi.n ln thlr title shall be aonntnad
or wa38lb8ra 8 as la any manner lmpelr or a$-
"r Ions by
Seotlng'the right of psrtls8 to areclto
8peaial oonarftotor agrss33nt. nor shell ft la
any msnner affsat or impair otbor liens arl8lng
at o~axnonlaw or in equity, or by any 8tetu88
or thi8 ststa or any other lien not troats4 of
uwler this t&s.* ,,
prlar to 1926 them wus a aonfl1at bstwsen the
various Courts of Civil ALp9eals 5x1this etsta oa ths qurr-
tloa of priority between a oontrsot ~llsnproperly reoords4
an6 s xoohmla18 or rspairman~alien. For that reason the
Su9re!ns aod of Texas grented writ ot error in the oass
of COHEERCUL CRXDIT CMPART 7. B3OS!i 2E4 B.W. @ll. In
thst ease the Coamleslon of Appeals, fn sn 09iaiOn written
by Juetlss spsr, reviaweb the aonetftutional prarfsloa
end 8tatote8 quoted prerlously and held thst the oontract
lion, wtiah was properly rsaordsd prior to the tin oi
areertlon or the msohsnla*s lien, was entitled to priority
over said moohanlo~8 ll*ar The court oonoludsd es followat
"'#ha it 18 rambe& that tt;eConetftu-
*ion asolsrs8 no priorit that the rtatutoa no-
whsm undortako to 8ay tPat the wohanlo's llsn
i8 ma rlor to all others, snd that artlale.Zi671
(6iOl~d~alsre8 a 8avl.q of liens areatsd bt spe-
sial sontraot than i8 no doubt that the ~sneral
rule of "not& of aontraat 8hOIiM 9mtai f sad
that the holdor of s Ohrttsl motignge who h;s
beon dll&anb to protoot his rights and ha8 dons
all that the law dmmadOd of him IA order t0 pre-
: 326
Bon#sblO D. 0. (IloOr ... Page 6
8orW the fZU1tD Or h18 oontraot should be
fully protootsd. m aurhaalo who fUrniDhO8
ratbrls~ or p*rfom labor in-tb repair8
Oi s%hiole thus mortgaged d0~8 ma rolan-
tarlly, and with full knfmlodm in law o?
th alx lst mort&a.pr :and th eoonrequent
right* of nutr’%a*o, and ‘Ii ha euf-
~X'8t10S8 by Duah OOndUOt ii i8 h$D OWE
ft ws8.a lytter oi ohofos upon h18
pert io do ths work, aad ha sssusmd the
risk of loring his h3r@ when ha Ontared in-
to the e@attaet.v’ Wllron I. DonaldDoa, 181 '
081. 8 IM P. 405, 4% L.B.A. Sz1, 64 Aar 39.
Rap. lJ,yOited ia Awsioaa !&p Foundor ti. 1.
flaho18, ~8upra.
vo thsrrrore rsooaunsn4that th6
oi the trial aourt snd o? the Court
Appoal.8 bs reformad 80 68 to dsores plalntilff
in error*8 shsttol mortga(zalien to k atlger-
lor to defendant 2s error*8 maohanla*s lien,
and ontltlsd to priority payment ?rm the pro-
atto of ma10 upon iOl(l(l108~S~~
fn ttm eabvo quobsd cmem the Bupraxw Court defl-
aitely lrtabltihod the priority of ths oontraot lien and
held that ths holUmr ot the oontreat llan was latltl8d to
a priority paymsnt fron the proossd8 ot sale upoa the fom-
0108~.
ID FAXSON, 299 3.1.
In the osas of TIJ.BI[B 669 by
tha Austin db~rt OS Oitil A9pmls, Wit Of .rX-or diD&S-
ed b,y the Suprmra Oourt, the aourt adogtsd the lazmarule
OAd Stt3tOdQ@ fO~htSl
wAppollm$a ploadod that mortgagor Wate?8
left the t ruok with BuBon-Oaboea Go:ipany, on
July 19, 19e3, in a nul-down ooxMltioa and ior
rqalxr that waters abandoned the truok and
Burtan-Jaboon Coapaay a016 16 oa NovemberlS,
19W, to ass Modraw, tram whom lppOllUZt8 bought
tho truok for $180, in 8atisiaetion ei tha
storqa and laborert8 lien thereon; aad th8t
the lSborsrt8 lion ttm8 aoquirdl was lU& Wr lOr
to that of sppalleO's prior reOOrded mtQmge.
Iionorable
D. 0. Orear ... Pqe 7
T h isq ur 8t:o
1n8derinitdy lettlad agalnet ep-
prllent'e oontontlon by the aa80 o? Oommerolal
Oredit 00. vr Bronn (Tex. Corn.App.) a34 S.W.
Wll,,whioh hold8 that 8 moohenio'e or laborer*8
lien for repairing an luSmmbll8 in his poeeor-
8iOIl i8 UOt 8llp@riOr t0 8 &WiOr re(liSterCMi IlUXt-
gega on the automobllo. Redamen v. Wewnom, 109
lbxr 478, 8ll S.W. od6 Almriowl, eta., 00. T*
14 8.W: 301."
Blohol8, 110 'hr. 4, i3
The Tourkana Court of Olvll Appeal8 In the oaeo
of 08RERAL MOTOR8 ACCEPTANCE CORP. v. YERRZTT, 16 8,W.(2d)
296, rtateb a8 follow8~
"That rgeerasnt apparently reoognlzee the
dootrlne lnnounoed by our 8uprm.o Co u r t th a t l
prior properly reooraad ohattelmortgageon lr-
801181property 18 euporlor to 8 meohanlo*e 1lp on
breedupon lubbeoquentlymado repair8 to the prap-
erty. Oommerolrl Credit 00. v. Brown (Tex. Oom.
APP. erU S.W. 9111 Vllb~lgv. hlron (Ter. Oiv.
APP* 898 8.W. 669.'
Pi@ oall your attention, howemr, to the oaae of
YRITZ MOTOR OWPANX v. OABERT, U i3.W. (Zd) 72, writ of
error dlemlcleodby the Suprosa Oourt. In that oaee the
Yort Worth Ooart of Otvll Appoalr held that the oontraob
mortgagee had waived lte prlorlty over the meohanio'e lien
by lmplledly agreeing to the repairs being mado to the
motor rehlolw. The oourt et&s4 a8 followers
Whllo the Frltx Motor Company did not In
sxproee tam8 agree that a lien might aria@ in
Oebertfr rarer for repair6 yet it knew that
the repair8 to be mabe wou ia enhence the reluw
of the property1 it aleo knew that ~.;henthe re-
paira were ilnlahed, Prlngle ?iightnot be able
to pay ior them, end thst In that event a &t&t-
utory lien in favor ot Oebert would fmlfm. If
the repelre had Soen made upon the order OS the
Fritz Hotor Company, olanrly, it would be in no
poeitloo to deny the priority of Cabert*8 lien
over the mortgage lien: and we ofanpsraslve no
reason why the BUN legal result would not tol-
low from the plaiatlf?*# authorization of the
328
Honoreblm D. 0. moor ,.. Page (I
repairs thrmgh Prlngle."
Baaed u90n the above 0aee8, you are 8dViSd that
where an l??IdSVIt of a meoh8nIo or mpalrmn is eubmlt-
ted t0 your d@partntMt rOqUS8ti~ that ~SrtitiOStS O?Tltle
bo ltmuod in the name of a guroh88er at a sale oonduoted
by hiato l atI8?y hi8 118n and where th8 raoorar 0r your
dqmrtrmnt show that a oertltioatehas bean I38ued prevl-
ouely on the la!w motor rehlolo, wkloh oertit~oat8 oon-
tainti not*d thereona valid oontraot lien, that your de-
psrtwnt 18 not authorized t0 iSSUe 8 OertifiO8te Of Title
ln the nam8 O? th. purohaeor at the Sah OOnaUOted by tho
msoheni0 or re aIrman, un1088, at the 8441~0 tti, you am
?urnleMd 8 rePease of the oontraot lien noted upon the
first Oortl?Ioate o? Title. You are further advIsed that
ln ouz oplnton awn iI th0 meohanIo*e atriaevit asserted
that the holder o? the oamtrsot and prior lien h8d w8lved
his priority YOU would not bo justified i.nissuing a Car-
tlrio8to 0r lltle to tho purohaser st tho moohenI0 or r*
pairnun' aale. We bolievo that beton your department
would bo ruthorleed to reOOgnlz0 the priority of a meohan-
lo's lion, above that of a preriouely noted oontraot lion,
It would be neoorrary that you be furnished with a final
judgment of a romt o? law 80 dooreeing suoh a priority.
wo trust that tho toregolna iul1.paavle~r you in
thlr matter.
?OUrS very truly
ATTORN6Y C=AL OF,TEIA3
Etirob | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4142501/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Olin Oulber,rron, Commlrdone~
Eailroad CorgPiorion Of TOXa8
Au&in, 'petal
,ut uhloh
prior to
bn for
u&t
in a total of &Q,295.60 anbwhen mram was
prerontell an& apprwed by the Conmie8ion for
payment they worm returned by the Oomptrol~~r
with the rtatumnt tTheoo aoeaunt8 lnour prior
to grant of Limitation Board and not payable
out or grant.*
fIonorabls Olin Culberson, page 2
“In view of the fact that these items were
rpsolfloally Inoluded In our request, I wauld
like for you to answerthe fallowIng questiont
“Can the Comptroller legally authorize
warrants for ‘payment of there aooounte ren-
dared to the Oommi~,sIon under date or Au&u&
6th. but whioh warm inourred prior to the
applioation ror limitation grant?n
The grant made by the Limitation of Payment8 Board
upon the petition Of the Railroad Commission, datrd July 1,
19W, was to permit 8aId. Railroad Commission to srpenb men108
naoeraary to adequately performthe runotfon8 OS 8alil 8tatm bo-
partment rrom available funds thoretotore appropriated ami
then on hanb.
The approval of the applioation ot the Railroad
Coxmi8sion to L%~O suoh available fund8 for the doaIgnato6 pur-
pose wan not an appropriation by ruoh body but 8uoh aotion on
the part of auoh boriy wa8 rather a permirri~e gan$ to the Rail-
road Commission allowing it to use the rpeoIii6d mottle8 f;; thr
purpose an6 in the amount8 set out in the applloation.
Ueny payment8 of obllgationm inourrad prior to the date of the
grant made by the Limitation OS Paymanta Boar4 would ronbar the
Railroad CommIsaion powerle88 to oarry out it8 statutory iuno-
tionq, and the very purpose oontemplated by the Legl8lature.
In creating the Limitation of Payment8 Bo,ard would, in raot,
be dereatsd.
Honorable Olin Oulberaon, pago 3
You are aooordlngly advleed that it la the opinion
of thirr department that the Comptroller oan legally authorlea
-anti payment of aooount8~renderod to the Railroad Coniml$-
aion under date of August 6, 1941, but whloh aooounta were
inourred prior to the applloation for limltatlon grant.
Tour8 very truly
ATTOEUFEY GENERAI, OF TEMB | 01-03-2023 | 02-18-2017 |