author: MOORE, Circuit Judge: OAKES, Circuit Judge TYLER, District Judge: OAKES, Circuit Judge

text:
    George NIEVES et al., Plaintiffs-Appellants, v. Russell G. OSWALD, Commissioner of Correctional Services, Vincent R. Mancusi, Superintendent of Attica Correctional Facility, Defendants-Appellants.
    No. 1077, Docket 73-1846.
    United States Court of Appeals, Second Circuit.
    Argued July 19, 1973.
    Decided Jan. 30, 1974.
    On Rehearing May 31, 1974.

      Herman Schwartz, Buffalo, N. Y. (Edward I. Koren, ACLU Prison Rights Project, Buffalo, N. Y., Kenneth Kimerling, National Lawyers Guild, William E. Hellerstein, Legal Aid Society of New York, Morton Stavis, Stanley A. Bass, New York City, on the brief), for plaintiffs-appellants.
    John H. Stenger, Sp. Asst. Atty. Gen. Louis J. Lefkowitz, Atty. Gen., for def endants-appellants.
    Before MOORE and OAKES, Circuit Judges, and TYLER, District Judge.

       Hon. Harold R. Tyler, Jr., of the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

Between September 9 and 13, 1971, a disturbance by the inmates at the Attica Correctional Facility (Attica) resulted in many acts of violence and many deaths. A not unexpected aftermath has been an attempt to ascertain, both inside and outside prison walls, such persons as might have been responsible. Outside the prison a special grand jury was impaneled to consider possible criminal charges; inside the walls there remains the possibility of disciplinary hearings against inmates who took part in the disturbance.

Anticipating criminal and/or disciplinary action against them, nine inmates, purporting to sue on behalf of all inmates of Attica subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th, filed a complaint on November 16, 1971, seeking injunctive relief against the holding of such hearings on the ground that adequate procedural safeguards had not been provided. A “declaration that the facts complained of are unconstitutional” was also sought.

Plaintiffs-appellants (as Petitioners) asked that a three-judge court be convened. This request was denied; on appeal the denial was reversed by this court and remanded, Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973). On remand plaintiffs withdrew their request for an injunction. This left only the declaratory issue for the District Court’s determination.

The District Court carefully considered each contention raised by plaintiffs, namely, (1) fear of self-incrimination in connection with matters pending before the special grand jury; (2) inability to be present to confront and cross-examine witnesses; (3) failure to require testimony under oath; (4) no opportunity to present evidence in own behalf; (5) lack of counsel or counsel substitute; (6) failure to provide an impartial tribunal; and (7) failure to provide for a written decision based upon substantial evidence. More specifically, the Court also dealt with charges that the rule allegedly violated was not made known to the inmate, that the rules were too general and vague, and that copies of the rules were not given to inmates.

The Court then proceeded to analyze the Rules (in order as they appear in the District Court’s opinion, §§ 251.5, 252, 253, 253.2, 253.3, 253.4, 253.5, 270.2, 270.4, 260.4, 261, and 261.3). 7 N.Y.S. C.R.R. Chap. V.

In a rather lengthy opinion the trial court held, in substance, that to protect the inmate against self-incrimination which might arise in any disciplinary hearing, the inmate should have (1) an adequate opportunity to consult counsel prior to the proceeding; (2) a prison employee to assist the inmate designated pursuant to section 253.2 of the New York State Code of Rules and Regulations (N.Y.S.C.R.R.), Chapter V, Volume 7; (3) presence of counsel at the ini: tal meeting between inmate and the designated employee to discuss and determine investigatory procedures; (4) a copy of the employee’s written investigation report; and (5) counsel present during the hearing to consult with the inmate. The Court limited these safeguards by declaring that such counsel was not to have leave to “conduct his own personal investigation within the confines of the prison” or “to cross-examine witnesses nor to call witnesses in addition to those interviewed by the hearing officer.”

In short, the Court held that: “To condone a procedure whereby an inmate goes into those proceedings uninformed or ill advised as to the dangers involved, then makes an incriminating statement and is left with the solé remedy of a pretrial suppression hearing, appears to this Court to be inconsistent with the requirements of due process when received in the context of the present situation.” Having satisfied itself that counsel was required, the Court granted the right, subject to certain limitations. The trial Court concluded that the “defendants are permanently enjoined from conducting any and all disciplinary hearings concerning charges against inmates arising from their claimed participation in the events at Attica between September 9 through 13, 1971, inclusive, unless and until such inmates are provided the assistance of retained or appointed counsel to act in the capacity detailed in this opinion.” The Court, noting our en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir.), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1971), 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), qualifies its opinion with the caveat that it “should not be considered as holding that the right to counsel is required in all cases of prison disciplinary proceedings.”

The case now comes to us on appeal both by plaintiffs who inveigh against the limitations placed by the trial court on the “due process safeguards” that were granted and by defendants who object to that portion of the court’s opinion which grants the prisoners the assistance of counsel.

Because it is not known at this time what, if any, charges may be leveled against these particular inmates, the District Court’s opinion must, of necessity, have been somewhat hypothetical in character. The Court stated:

Although the services thus provided may afford the inmate an alternative means of establishing a defense to the disciplinary charge, it does little to protect him from self-incrimination, either through ignorance or otherwise, as far as possible criminal charges of murder, kidnaping and the like which may flow from his involvement in the September revolt.
During the course of those disciplinary hearings, there must certainly come a time when a determination has to be made concerning what statements on his part may or may not be incriminating and what conduct on his part may or may not be consistent with a defense to the potential criminal charges presently under investigation by the special grand jury. These are determinations not to be made by an untrained layman but rather by a qualified attorney competent in that area of law.

Thus it is evident that the Court was addressing itself to procedural safeguards in serious eases such as “charges of murder, kidnaping and the like.”

In our view, this case now on appeal for the second time is at this stage in a troublesomely obscure posture. In part, this is due to the fact that events relevant to the issues have occurred since the District Court’s order; also the class as defined below may not properly recognize certain sub-classes with different problems and “standing”. Furthermore, on November 26, 1971 and again on May 21, 1973, after the decision of the “April panel” of this Court, 477 F.2d 1109 (1973), counsel stipulated to a temporary stay of disciplinary hearings respecting plaintiffs’ class. According to the trial Court, the November 26, 1971 stay of such hearings was to continue “until the special [Wyoming County] grand jury has made its report or until the merits of this action have been determined.” This language is not entirely clear, but it suggests the possibility that counsel agreed on behalf of the State that the State would suspend all disciplinary hearings until the Wyoming County grand jury hands up its presentments or expires by operation of law. Indeed, the actual language of counsel for the State, who first proposed a stay, on November 26, 1971, to us more clearly indicates that this was and still may be the essential posture of the State of New York:

Mr. Stenger: . . . Now, what I would like to propose, your Honor, is this, appreciating the dilemma because of the pending criminal investigation, I am authorized to state that the respondent will consent to a temporary injunction of a limited degree, namely, that no administrative disciplinary hearings will be heard as against any charges arising from the Attica insurrection up until such time as the grand jury, now about to convene and sit, has returned a report and any indictments, and the actual targets of that investigation are known.
The Court: You mean a final report?
Mr. Stenger: Yes, or until such time as this action is determined. In other words, we will relieve voluntarily any of these inmates of the dilemma by not proceeding, under the Court’s direction, with the holding of any administrative hearings where they may be placed in this position that has been suggested, until such time as it is known whether they are the target of investigation or not, and, of course, at that time when it is known, we should be free to go ahead with those who are not a target, and then we can 'discuss continuation of an injunction as to those who have been determined to be a target. We are prepared and willing to consent to that, pursuant to the Court's direction, and I think that will solve the temporary dilemma in which these people find themselves with regard to this one point. So as far as the request for injunctive relief of a temporary nature, I will make that concession on behalf of the respondent.

In light of this language and of developments before the special grand jury, therefore, it may still be the precise position of the State of New York that: (1) it will proceed with disciplinary hearings against those plaintiffs and class members who are now known not to be grand jury targets, and (2) it will consider further stays as to those members of the class who are existing or potential targets. If this be true, then it would follow that such members of plaintiffs’ class who are currently protected by the stay have no present standing to press for a determination of the merits by the district court at the present time.

But, as Judge Oakes in dissent forcefully argues, this may not have been the intent of the parties, most particularly the State of New York, on November 26, 1971, or, if it was then, it was not so when counsel entered the written stipulation, which is part of the very judgment of the district court here appealed from, on May 21, 1973. The operative language of that written “stay” makes no reference to the Wyoming County grand jury and its proceedings, but simply provides that the disciplinary hearings “shall be stayed pending the final outcome of this litigation. . . .” Possibly then, it can be inferred, as does Judge Oakes, that this new language reflects the understanding of the parties that the stay is effective pending the outcome of this case — i. e., that the parties do not wish to wait upon the special grand jury proceedings and other criminal investigations but prefer to have the merits of this case resolved in the federal courts.

Notwithstanding that this construction of the intentions of the parties and their counsel may be correct, our notions of sound federalism and of the aforementioned ambiguity of the record, suggest the cautious approach of remanding this case with directions set forth hereinafter.

The motivating reasons for this conclusion are that until the special grand jury has acted, the inmate will not know whether or not a true bill has been returned against him. If not, then there still may be a possibility that charges will be preferred against him for some prison infraction. What these may be, if any, cannot be known until the occasion arises. Once the nature of the charges is known, the accused should be given all necessary protection. This protection can be best formulated by the District Court in light of the facts before it. If indictments have already been returned, the Court can mold necessary relief accordingly.

Specifically, the trial Court should have the parties by their counsel supplement and flesh out the record to show in reasonable detail the actions of the special grand jury and other investigative bodies to date, with particular concern, of course, for information as to which members of the plaintiffs’ class have been indicted and for what charges. In this connection, we note that, since argument of this appeal, there have been newspaper reports of indictments returned by the special grand jury in Wyoming County.

Moreover, the District Court should inquire what the intent of the State now is respecting disciplinary hearings for (1) those class members who presently can be identified as non-targets of the special grand jury or any other state criminal investigation and (2) for those who are or still may be targets of such proceedings. As was noted in Sostre v. McGinnis, 442 F.2d 178, at 196 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), and Nieves v. Oswald, 477 F.2d 1109, at 1113 (2d Cir. 1973), due process safeguards must vary depending upon the factual setting. In light of this, it would be premature, particularly for an appellate panel, to delineate minimum due process requirements for the non-target members of the class until it is established what are the specific charges against them and what penalties may be imposed. With regard to those members of the class who are or may be targets, as already noted, they would not have standing to press their claims in the event that the State agrees before the trial Court either to forego certain disciplinary charges entirely or to stay the disciplinary hearings, at least until the special grand jury and other state criminal investigations have run their course.

Accordingly, we remand the case to the district court with directions to vacate the order appealed from and reopen the hearing to supplement the record along the two main lines heretofore described. Further, once the record has been supplemented, we note that the trial judge may wish to hear further argument relevant to the “new” or additional facts, make further findings and enter a new order or orders to properly adjudicate the rights of parties in light thereof. No costs.

OAKES, Circuit Judge

(dissenting):

Seldom, in a case of such importance, has so little been decided after so much time and the expenditure of so much effort by counsel and judges alike. With neither hesitation nor reluctance I dissent from a decision that is, without any question in my view, not only unwarranted in law or authority, but an abnegation of judicial duty. This appeal which was “expedited” by order of this court and was argued on July 19, 1973, ■more than six months ago, is not here being decided, since the majority’s “decision” decides nothing at all. After all of this time, after careful briefing and able argument, the case is sent back to the district court to “flesh out the record,” from which, inevitably, it will rise once again with our knowing no more about the legal issues than we do now. I do not believe that the case will simply disappear, as the majority apparently hopes. I believe we have a duty to decide it, one which the majority abjures.

It goes almost without saying that the majority’s opinion fails to reach the merits of the case: whether inmates involved in the Attica riot, which included “except for Indian massacres . the bloodiest one-day encounter between Americans since the Civil War,” would be denied due process by having to undergo disciplinary hearings before an officer of the prison unprotected by counsel, unable to call witnesses in their behalf, and unable to cross-examine or confront the witnesses against them — hearings in which their only allowed defense is to explain their own actions in their own words, with the result that to conduct that defense they may be forced to incriminate themselves. And between the majority opinion today and the intricacies of three-judge court procedure, this will be the second time that both the State and the inmate plaintiffs will have been denied a ruling on the merits. In Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973) (Nieves I), a wholly different panel was faced with the same claims presented to this panel. The plaintiffs and their class of prison inmates, who are subject to prison disciplinary proceedings as well as criminal prosecution, there were seeking an injunction against the enforcement of certain state regulations governing disciplinary hearings. This court, while not reaching the merits in its determination that a three-judge court had to be convened, stated unequivocally that the inmates’ claim of “unconstitutionality of the regulations as applied where both disciplinary and criminal proceedings against an inmate are in the offing — unquestionably raises grave constitutional issues.” Nieves I, 477 F.2d at 1113 (emphasis added) (footnote omitted). The district court on remand granted a motion to withdraw the request for injunctive relief, thereby making a three-judge court unnecessary, and entered a declaratory judgment dated May 23, 1973. Both parties then appealed from the order below, so that today we would be free to reach the inmates’ claims on the merits were it not for the majority’s present non-decision that these “unquestionably . . . grave constitutional issues” are, after all, only “hypothetical.”

These “grave constitutional issues” are only “hypothetical,” according to the majority, because “it is not known at this time what, if any, charges may be leveled against these particular inmates.” Such a determination flies in the face of the decision of this court in Nieves I, which did not find the issues hypothetical at all, although it had fewer facts before it than the present panel, but rather found the issues so substantial as to require the convening of a three-judge court to rule on the merits. The majority here is now saying that the court in Nieves I was wrong and that it should have dismissed the claims as hypothetical, or at least have remanded the case to “flesh out the record.” The majority, without acknowledging that it is doing so, is in effect rejecting the law of the case and overruling Nieves I, an action normally requiring an en banc court.

But this unwarranted and unauthorized action is inexplicable on the basis of the facts before us, unless the majority has simply closed its eyes to those facts, or unless, after six months, the facts have merely been forgotten. For instance, it is stated that “what, if any, charges may be leveled against these particular inmates” is “not known at this time.” This is simply not true. As for the disciplinary charges, they are stated in the Amended Complaint and admitted by the State in its Answer. They are even summarized in footnote 3 of the majority opinion. The State further admits in its Answer that disciplinary hearings will be held against these inmates, except as stayed by the court order, and that certain disciplinary hearings have already been held against inmates because of activities during the riot. Thus, it is known what the disciplinary charges are against these plaintiffs, and those charges, while certainly not exhaustive of all possible charges, are representative of a gamut of charges so as to present questions of law common to the members of the class, as found by the district court and reiterated in Nieves I. As to criminal charges, plaintiffs Sumpter, Merkel and Ortiz have already been indicted in six separate indictments on 100 counts of criminal activity ranging from Promoting Prison Contraband to Assault and Kidnaping. Plaintiffs Nieves and Roberts have not yet been indicted. „ At least 57 other inmates and former inmates have been indicted on some 1,300 counts of criminal activity. Moreover, as to the named plaintiffs, their indictments were handed down before the district court’s declaratory judgment and even before this court’s decision in Nieves I, so that it can hardly be said that the district court’s declaratory judgment was “somewhat hypothetical.”

The majority states in its opinion: “Once the nature of the charges are [sic] known, the accused should be given all necessary protection.” As shown above, at least as to three of the named plaintiffs, the nature of both the disciplinary and criminal charges is known. And these plaintiffs’ charges are representative of those of their class. The majority, ignoring these facts, then says that the “protection can be best formulated by the District Court in light of the facts before it.” That is precisely what the district court has already done and what is presented to this court for revieiv. That protection is what is being vacated by the majority on no legal basis, but merely to remand the case to search for facts already before the majority. The majority acknowledges Judge Henderson’s “lengthy” opinion, which is lengthy because — even though I disagree with some of it — it analyzes the merits in light of the facts in some depth.

In Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), this court did not deny due process to prison inmates in disciplinary hearings, but rather stated that the process due would depend on the circumstances and factual setting. 442 F.2d at 196. See Nieves I, 477 F.2d at 1113. The majority, while citing both of these passages, notes that plaintiffs and the members of their class are subject to a wide variety of disciplinary charges, see majority opinion at note 3 swpra, and concludes that it would be “premature” to determine the process due before learning what each inmate is charged with and what the possible disciplinary penalties are.

What the majority totally misses, however, is that the factual setting here which calls for special attention is not the charge or penalty in the disciplinary hearing at all; rather it is that an inmate’s only means of defending himself from the disciplinary charge according to the challenged regulations is to explain in his own words, unaided by counsel, what happened. Ordinarily this might well suffice, and the regulations as generally applied are not challenged here. In this set of circumstances, however, where the inmate is already indicted for serious crimes (as are three of the named plaintiffs and more than 57 other inmates) arising out of, or where the grand jury is engaged in an investigation of, the same incidents furnishing the basis for disciplinary charges, the inmate is forced to choose between possibly incriminating himself in the criminal proceeding or presenting no defense at all in the disciplinary hearing. Thus, this case does not turn on what the particular disciplinary or criminal charge may be, but rather on the dual jeopardy involved where the State is proceeding with both disciplinary and criminal actions against inmates involved in the Attica disturbance.

The majority, unable to sweep all the way under the rug this grave constitutional issue noted by this court in Nieves I, by the court below, and by a number of other courts, avoids the question of what process is due in this situation by suggesting that somehow the question is not yet ripe because of a “temporary injunction” the State consented to on November 26, 1971 (hereinafter the “1971 stay”). The majority lifts a passage out of context from the hearing that day to discover, or, more accurately, to imagine an intent by the State not to hold disciplinary hearings against anyone until the special grand jury makes its final report, and additionally a willingness by the State to “consider further stays as to those members of the class who are . . . targets.” By rejecting the record as presented to this court, the majority takes what it euphemistically calls “the cautious approach” of remanding the case to discover what the State’s intent was and what it is willing to consider now. Needless to say, this “cautious approach” will cost courts and counsel literally hundreds of extra hours to determine facts in respect to each inmate member of the class when in respect to representative members of the inmate class there are already sufficient facts before this panel to resolve the grave issues presented. One would suppose that, despite the majority, the merits will have to be passed upon by this court someday — perhaps sooner than later. But one must regret that in the busy Western District of New York the trial judges have to spend their time “fleshing out” an already sufficient record.

The intent of the State in consenting to the 1971 stay is clearly seen even in the language quoted by the majority once that language is viewed in context. On November 26, 1971, plaintiffs argued before the district court for a preliminary injunction against all disciplinary hearings arising out of the events at Attica. The State consented to such a temporary injunction except that it wished to be able to proceed with disciplinary hearings against any inmate cleared by the special grand jury, because such an inmate would not be subject to the possibility of self-incrimination. But it could not be known until the special grand jury had finished its work and made its report which inmates had been cleared and which indicted. Thus, the State consented to a temporary injunction pendente lite against all disciplinary hearings arising from events during the Attica disturbances, but if the special grand jury made its final report before the litigation ended, then the State would be free to proceed against anyone not indicted, and would discuss an extension of the temporary injunction pendente lite as to those indicted. The language quoted by the majority reflects this understanding as it is in the disjunctive, stating that the temporary injunction will last either until the special grand jury’s report or until the action’s determination. If there had been any doubt, which there was not until the majority’s invention of it, the district court’s order should have eliminated it:

Such stay, by agreement of the parties, is to continue either until the Special Grand Jury has made its report or until the merits of this action have been determined, whichever event occurs first.

Nieves v. Oswald, Civil 1971-526 (W.D.N.Y. Mar. 8, 1972) (emphasis added). Thus, it is absolutely certain that this 1971 stay can provide no basis for avoiding decision here on the clearly fabricated notion that the 1971 stay prevents the issue from being ripe until the grand jury makes its report — a claim never suggested by the State.

Moreover, even were it otherwise— and this makes the majority opinion border on the incredible — the 1971 stay was supplanted by a written stipulation between the parties on May 23, 1973, which stated that disciplinary proceedings would be stayed only “pending the final outcome of this litigation.” No mention is made of the special grand jury at all. This stipulation, pursuant to which the judgment appealed from was entered, is what governs this case. It is beyond belief to suggest as the majority does that the State, which entered into the stipulation for the express purpose of expediting the appeal on the merits, intended thereby to destroy the plaintiffs’ “present standing” and consequently lose an adjudication on the merits.

The majority, however, does not let mere logic, plain language, or the intent of the parties stand in the way of a determination to avoid the merits. Rather the majority suggests that it may be the position of the State that “it will consider further stays as to those members of the class who are existing or potential targets,” reasoning that such “further stays” would save the inmates from any immediate threat and that thus their claims are not ripe for determination. For the third time, it must be questioned why the majority does not itself ask the State what it will consider, rather than wasting counsel’s and judges’ time and resources on a needless remand. It may, moreover, be questioned by what right the majority can suggest to the State a means by which it might destroy the ripeness of plaintiffs’ claims. While it may not be beyond judicial propriety to make suggestions aimed at settlement, or perhaps in some cases to mediate a controversy, a court cannot take sides, suggesting means to one party that will enable that party to avoid a possible adverse judgment by destroying the court’s jurisdiction or the justiciability of a claim.

More importantly, however, the majority does not explain the relevance of what the State might “consider” in the future to the present ripeness of the issues or the “present standing” of the plaintiffs. The present ripeness or standing is determined by the present adverse controversy. The State has admitted its intent to proceed with the disciplinary hearings and has never suggested its willingness to do otherwise. In such a situation the plaintiffs are under an immediate threat but for the stay pending the outcome of the litigation. Such a stay no more negates the justiciability of their claims than a preliminary injunction makes the need for a permanent injunction moot.

I have tried to demonstrate that the majority’s nondecision today results in a senseless waste of judicial resources, not only of this court both in Nieves I and the present case, but also of the district court, which attempted to do what the majority here commands it to do once again — fashion the necessary protection for the inmates in light of the facts. The majority in vacating the reasoned protections already worked out by the district court — protections which, to be sure, I think somewhat insufficient —gives no legal basis for its action. Rather it claims ignorance of facts before it; it finds an ambiguity in the record where none exists; and its “notions of sound federalism” are unexplained. I also think they are nonexistent in law.

On the merits, I think that the teachings of Sostre itself, when viewed in the light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U. S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) —cases neither referred to nor apparently considered by the majority —compel us to reach essentially the results already reached in First Circuit, Seventh Circuit, Eighth Circuit and a host of recent district court cases simply noted here. The challenged New York regulations fall short of providing minimal due process to inmates threatened simultaneously with criminal proceedings and disciplinary hearings. It would be neither novel nor unwarranted for this court to specify, for the benefit of all parties concerned, as the court below already has done, in what ways the State’s regulations are deficient. Nor would such a decision by this court entail writing a code of prison regulations for the State of New York any more than Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), entailed writing a code of administrative law regulations for that state. But to the extent that New York’s regulations are deficient in providing prisoners in the situation of those at bar with minimal due process, this court should not flinch from its duty to declare them so with the attendant consequences.

Accordingly, with some dismay, I dissent.

ON PETITION FOR REHEARING

TYLER, District Judge:

Following this court’s decision of January 30, 1974, Nieves v. Oswald, a petition for rehearing was granted in order to clarify certain aspects of the record. Argument was heard on April 4, 1974. Familiarity with the facts at issue will be assumed.

In response to this court’s question in the January 30th opinion about the state’s intentions concerning the holding of disciplinary hearings, counsel for the state secured and filed a statement from Peter Preiser, Commissioner of the New York State Department of Correctional Services. In that statement, the Department made it clear that it will not hold disciplinary proceedings concerning the behavior of any of the inmates in the Attica disturbance of September 9-13, 1971. Defendants-Appellants Second Supplemental Brief, filed April 3, 1974. At oral argument the following day, leave to submit briefs on the issue of mootness was granted. The last of these briefs was received on May 6, 1974, and decision by this court is now appropriate. We conclude that this case is moot.

In DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (April 23, 1974), the Supreme Court, in a case analogous to the instant one, vacated the judgment of the state court because it found that events occurring subsequent to the filing of the suit had rendered the case moot. DeFunis involved a challenge to the procedures and criteria employed by the Law School Admissions Committee of the University of Washington on the grounds that they violated the Equal Protection Clause of the Fourteenth Amendment. Specifically, the petitioner, DeFunis, claimed that he had been denied admission to the law school because of his race. The trial court ordered his admission to the law school, and by the time the case reached oral argument before the Supreme Court, DeFunis had registered for the final quarter of his last year in law school. Furthermore, respondents stated that regardless of the outcome of the appeal, DeFunis would be awarded his J.D. degree at the end of the academic year. The Supreme Court held that “[bjecause the petitioner will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. Ill of the Constitution, consider the substantive constitutional issues tendered by the parties.” 416 U.S. at 319, 94 S.Ct. at 1707.

The reasoning of the Supreme Court in DeFunis is controlling in the instant case. There is no longer a possibility that any of the members of plaintiffs’ class will be subject to disciplinary hearings as a result of the events at Attica between September 9th and 13th. The controversy is thus no longer “definite and concrete”, Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937). The question of what safeguards would have been required at disciplinary proceedings, if the state had not decided to forego these proceedings, is surely an academic one.

It does not matter, in this case, that the circumstances which have led to the dropping of any possible disciplinary proceedings stem from the voluntary action of the state. The state has made its decision not to proceed with disciplinary proceedings as a matter of record, and there is certainly no reason to believe that, once this ease is dismissed, the state will then reinstitute disciplinary charges. As was pointed out in DeFunis, 416 U.S. at 317, 94 S.Ct. at 1706, “[i]t has been the settled practice of the Court, in contexts no less significant, fully to accept representations such as these as parameters for decision. See Gerende v. Elections Board, 341 U.S. 56 [71 S.Ct. 565, 95 L.Ed. 745] (1951); Whitehill v. Elkins, 389 U.S. 54, 57-58 [88 S.Ct. 184, 19 L.Ed.2d 228] (1967); Ehlert v. United States, 402 U.S. 99, 107 [91 S.Ct. 1319, 28 L.Ed.2d 625] (1971); cf. Law Students Research Council v. Wadmond, 401 U.S. 154, 162-163 [91 S.Ct. 720, 27 L.Ed.2d 749] (1971).” Moreover, this is not one of those cases where the respondent has changed its disciplinary practices and thus attempted to deprive the court of the power to hear the case. See, e. g., United States v. Phosphate Export Assn., 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 19 L.Ed.2d 821 (1963); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). As in DeFunis, the general policy here remains unchanged, but the individuals bringing the suit are no longer the present targets of disciplinary proceedings.

It is of course, true that some of the members of the present class still remain in prison and hence may possibly become once again the subject of both disciplinary and criminal proceedings. This is not a case, however, like Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1, (April 16, 1974), where the governmental activity “by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” 416 U.S. at 122, 94 S.Ct. at 1698. In Super Tire, the issue was whether striking workers were eligible for assistance from state welfare programs. The Supreme Court, in a 5 to 4 decision, held the case not to be moot even though before the case was tried the strike had come to an end. The court found that the availability of state welfare assistance had a continuing effect on the present interests of the parties. As petitioners there argued, the eligibility of striking workers to receive benefits “[a]ffects the collective bargaining relationship,, both . . . when a collective bargaining agreement is in process of formulation, and in the ongoing collective-bargaining relationship, so that the economic balance between labor and management, carefully formulated and preserved by Congress in the federal labor statutes, is altered by the State’s beneficent policy toward strikers.”

416 U.S. at 124, 94 S.Ct. at 1699.

In the instant case, the disciplinary procedures employed by the state do not have such an effect on any legitimate present interests of the class members. Furthermore, the threat of governmental action here, unlike in Super Tire, is “two steps removed from reality.” 416 U.S. at 123, 94 S.Ct. 1694. In Super Tire, once the workers went on strike, the reception of welfare assistance was automatic. Here, even if inmates commit a criminal offense, the state must still decide, in each case, if it is going to hold disciplinary as well as criminal proceedings.

Since this case involves governmental action, the question as to whether or not the issues here are “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), must be considered. Super Tire, 416 U.S. 115, 94 S.Ct. at 1694, 40 L.Ed. 2d 1; Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). If this were found to be such a case, it could well be found to be “amenable to federal adjudication even though it might otherwise be considered moot.” DeFunis, 416 U.S. at 319, 94 S.Ct. at 1707. This is not such a case. As has been argued by petitioners, both in their brief of April 26, 1974, and at oral agreement, the situation where a prison inmate is subject to both criminal and disciplinary proceedings is not an uncommon one. The dropping of disciplinary proceedings in the present case certainly cannot be taken to mean that the state will follow this course in all future actions. It must be realized that it is in the interests of the state to have its disciplinary proceedings passed upon so that subsequent disciplinary hearings will not also be stayed. Moreover, due to the intricacies of three-judge court procedure, see Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973), and the necessity for granting a rehearing, this case has taken an unusually long time to decide. It is likely, therefore, that future cases raising this issue will be ripe for decision much earlier than 2% years after the event in issue.

Because disciplinary hearings are no longer contemplated against any of the inmates involved in the Attica disturbances of September, 1971, we remand this case to the district court with the direction to enter an order dismissing the action as moot.

OAKES, Circuit Judge

(dissenting):

I dissent.

This rather incredible case, which commenced November 16, 1971, and first came to the court for decision rendered on April 20, 1973, Nieves v. Oswald (Nieves I), 477 F.2d 1109 (2d Cir. 1973), is now declared moot because the current Commissioner of Correctional Services is said by the State under date of April 3, 1974, on reargument after the second trip to this court, .to take the position that

In sum, the delay of more than two and a half years in conducting disciplinary hearings occassioned [sic] by the court injunction, has destroyed the Department’s ability to properly conduct and enforce internal disciplinary measures against the inmates in question and the Department must defer to the criminal prosecutions.

Defendants-Appellants’ Second Supplemental Brief at 7.

I have previously stated in dissent in the second appeal to us, Nieves v. Oswald (Nieves II), supra, 802, 806 et seq., that the majority decision then rendered was “unwarranted in law or authority” and “an abnegation of judicial duty.” There, it will be recalled, the majority sent the case back to the late Chief Judge Henderson to “flesh out the record,” at 806, although the dissent urged rather strongly that the factual setting was quite sufficiently set forth to decide the “grave constitutional issues,” Nieves I, 477 F.2d at 1113, presented in the case-Nieves II, at 809-811. The dissent previously labored almost tiresomely to get the majority to ask the State its intentions outright and “questioned by what right the majority can suggest to the State a means by which it might destroy the ripeness of plaintiffs’ claims . . . [or] means ... to avoid a possible adverse judgment by destroying the court’s jurisdiction or the justiciability of a claim.” Id. at 812. So now the claim is not justiciable as moot. The State can (and does) blame the federal courts, and the “grave constitutional issues,” certain to arise anew unless now the State changes its procedures and regulations better to conform to the decisions of the day, remain undecided.

I would follow United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). There, Mr. Justice Clark, with only Justices Black and Douglas dissenting (on other grounds), said the following:

Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. ... A controversy may remain to be settled in such circumstances, e. g., a dispute over the legality of the challenged practices. . . . The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.

345 U.S. at 632 (citations and footnote omitted).

There is nothing here to stop the State of New York, under a new Commissioner of Corrections and Services, from recommencing disciplinary proceedings against any of the plaintiffs’ class here. The disciplinary procedures and regulations of the State remain in force and would govern future proceedings. As said in Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821 (1963), “the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing.” Only a few days ago the Court said, “It is settled that an action for an injunction does not become moot merely because the conduct complained of has terminated, if there is a possibility of recurrence, since otherwise the defendants ‘would be “free to return to [their] old ways.’ ” Allee v. Medrano, - U.S. -, 94 S.Ct. 2191, 2198, 40 L.Ed.2d 566 (U.S. May 21, 1974).

Moreover, if what has happened in this court, see Nieves II dissent, supra, is any sample, this is precisely a case where the issues are “capable of repetition, yet evading review.” Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (U.S. Apr. 16, 1974), quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). We still have a three-judge court procedure; I had always thought it was cumbersome, intricate and, as I said in a little piece, a “morass and mystery, if not miasma . . . . ” Oakes, The Three-Judge Court and Direct Appeals to the Second Circuit, 48 St. John’s L.Rev. 205, 210 (1973). In comparison to this direct appeal, at least, a straight three-judge court proceeding would have been streamlined.

I would, as the Nieves II dissent intimated, decide this case on the merits, and not — in these days of burgeoning dockets and heavy case loads — pass the judicial buck to another future panel. Accordingly, I dissent — not with the “dismay” of Nieves II — but with wonderment at having witnessed what turns out to be a Punch and Judy show rather than a momentous judicial struggle involving “grave constitutional issues” and yes, real live (and some dead) people.

      . By amendment dated November 23, 1971, eight other plaintiffs were added.

      . Nieves was the only plaintiff filing on this date.

      . There is a substantial difference between the named plaintiffs quite apart from probably greater differences between other members of the class. Thus, by way of illustration, the charges against these nine appear to be:

        Nieves — giving a note to a Correctional Officer to the effect that Nieves is a member of the “Young Lords”.

        Sumpter — threatening Correctional Officers.

        Merkel — assaulting Correctional Officers.

        Roberts — throwing weapons to other inmates.

        Pelow — attempting to break into gate and organizing inmates to take over offices ; also with threatening a Correctional Officer.

        Ortiz — striking officers with objects thrown from his cell.

        Figueroa — striking an officer.

        Little — assaulting officers.

        Hieks — guarding hostages for four days.

      . New York State Special Commission on Attica Official Report, xi (1972).

      . B. g., Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973), petition for cert. filed, 41 U.S.L.W. 3555 (U.S. Apr. 9, 1973) (No. 72-1359).

      . The class actually designated by the district judge in the order of May 23, 1973, presently under appeal is comprised of those inmates who may he subject to disciplinary charges and criminal charges stemming from the same incident or incidents occurring at the Attica Correctional Facility during the period September 9-13, 1971.

      . Rosario v. Rockefeller, 458 F.2d 649, 651-652 n. 2 (2d Cir. 1972), aff’d, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1, rehearing denied, 411 U.S. 959, 93 S.Ct. 1920, 36 L.Ed.2d 419 (1973); Carter v. McGinnis, 351 F.Supp. 787, 789 n. 2 (W.D.N.Y.1972). See also Thoms v. Heffernan, supra note 2. Here the State as in Thoms was cooperative by stipulating to a stay of disciplinary proceedings penning resolution of this appeal, so that plaintiffs would not have to seek a temporary injunction, with consequent three-judge court convention, and so that the merits could be reviewed by this court more expeditiously.

      . It may be questioned by what authority the district court may retain jurisdiction over this case to “flesh out the record,” as directed by the majority, when the case has been found too “hypothetical” to decide. My understanding has always been that if a case is too conjectural or hypothetical to present a ease or controversy, then a federal court has no jurisdiction over it. See O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (U.S. Jan. 15, 1974); Roe v. Wade, 410 U.S. 113, 127-129, 93 S.Ct. 705, 35 L.Ed. 2d 147 (1973). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). On the other hand, a federal court presented with a case or controversy is bound to decide it, not to postpone decision until such time as further facts may make a decision easier or, for that matter, even better. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) (Marshall, C. J.) :
      It is most true, that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction, if it should .... Questions may occur which we would gladly avoid; but we cannot avoid them.
      The majority, however, without citation to any authority whatsoever ignores these fundamental principles of federal jurisprudence and strikes off on what can be described at best as a novel approach to federal abstention.

      . If indeed the majority does not know this and other facts it deems important to a decision on the merits, it is not clear why it is necessary to remand the case to determine them. It is not beyond the power or propriety of this court itself to check the public records of the Wyoming County Supreme Court or to communicate with both the parties and to ask them to supply such information. This could be achieved either through written communications or reargument. Cf. Brown v. Board of Education, 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152 (1952). In either case, this self-same panel could then actually decide the case presented to it. By rejecting these possibilities, the majority demonstrates not its “notions of sound federalism” but its desire to avoid decision, with a consequent waste of judicial time and resources.

      . Plaintiff Ortiz has been charged with having thrown objects out of his cell and striking officers with the objects as well as cursing officers. Plaintiff Roberts has been charged with providing other inmates with weapons and carrying a gas mask and tear gas canister. Plaintiff Merkel has been charged with assaulting two correctional officers and acting in concert with others. Plaintiff Sumpter has been charged with threatening two correctional officers. Plaintiff Nieves has been charged with carrying a note. The other named plaintiffs are no longer inmates.

       Merkel — Indictment No. 11.
      6 counts of 1st Degree Assault
      2 counts of Illegal Possession of Weapons as a Felony
      2 counts of Promoting Prison Contraband
      Ortiz — Indictment No. 7.
      6 counts of 2d Degree Kidnaping
      6 counts of 1st Degree Unlawful Imprisonment
      6 counts of 1st Degree Coercion
      5 counts of 2d Degree Assault
      —Indictment No. 8.
      9 counts of 2d Degree Kidnaping
      9 counts of 1st Degree Unlawful Imprisonment
      9 counts of 1st Degree Coercion
      —Indictment No. 17.
      2 counts of 2d Degree Assault
      —Indictment No. 31.
      2 counts of 2d Degree Assault
      Sumpter — Indictment No. 8.
      9 counts of 2d Degree Kidnaping
      9 counts of 1st Degree Unlawful Imprisonment
      9 counts of 1st Degree Coercion
      —Indictment No. 9.
      3 counts of 2d Degree Kidnaping
      3 counts of 1st Degree Unlawful Imprisonment
      3 counts of 1st Degree Coercion
      The foregoing is a matter of public record of which we may take judicial notice. Brown v. Board of Education, 344 U.S. 1, 3, 73 S.Ct. 1, 97 L.Ed. 3 (1952); Bryant v. Carleson, 444 F.2d 353, 357-358 (9th Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971); Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 723, 9 L.Ed.2d 718 (1963). Verification is a local telephone call (212-488-4044) away from the United States Courthouse at Foley Square.

      . This was reported in T. Wicker, Attica Reopened, N.Y. Times, Jan. 4, 1974, at 29, col. 1 (city ed.), but if that report were doubted it too is subject to easy verification.

      . See note 3 supra.

      . Bee, e. g., Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1092-1093 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1167 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787, 792-795 (W.D.N.Y.1972); Clutchette v. Procunier, 328 F.Supp. 767, 783 (N.D.Cal.1971).

      . Again, it is hard to understand why the majority is so reluctant to ask the State the very questions it directs the district court to ask. Either by letter or reargument — the majority not having asked any of these questions in initial argument — the majority could answer its own questions and thereby “flesh out” its own record which it finds so lacking.

      . The entire stipulation is as follows :
      1. It is hereby stipulated that the attached judgment may he entered by the Court in lieu of the previously entered injunctive order, to obviate the need for a three-judge court and to expedite the appeal from such judgment, without prejudice to the parties’ respective challenges to the substance of such judgment.
      2. It is further stipulated that the disciplinary proceedings described in paragraph 1 of the attached judgment shall be stayed pending the final outcome of this litigation, but plaintiffs shall not assert the delay in holding such hearings resulting from such stay, as a basis for challenging such hearings when they are in fact held.

      . See id.

      . As explained above, this language in context in 1971 referred to the State’s willingness to consider further stays pendente lite if the special grand jury made its reports before the action was finally determined. It was not referring to any willingness to extend stays beyond the pendency of the litigation. Indeed, the State’s Answer admits that disciplinary hearings “will be held” against plaintiffs, and there has been no suggestion or indication that the State is forbearing from proceeding for any reason other than the stay pending the determination of this action.

      . See id.

      . See, e. g., Gomes v. Travisono, 490 F.2d 1209 (1st Cir. Dec. 28, 1973); Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. Nov. 16, 1973); McDonnell v. Wolff, 483 F.2d 1059 (8th Cir.), cert. granted, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108 (U.S. Jan. 21, 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973); Rhem v. Malcolm, 371 F.Supp. 594 (S.D.N.Y. Jan. 7, 1974); Wesson v. Moore, 365 F.Supp. 1262 (E.D.Va.1973); Collins v. Hancock, 354 F.Supp. 1253 (D.N.H.1973); Batchelder v. Geary, No. C-71-2017 RFP (N.D.Cal. Apr. 13, 1973); Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157 (E.D.Wis.1973); Carter v. McGinnis, 351 F.Supp. 787 (W.D.N.Y.1972); Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972); Colligan v. United States, 349 F.Supp. 1233 (E.D.Mich.1972); Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D.Wis.1972); Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972); Brown v. Schubert, 347 F.Supp. 1232 (E.D.Wis.1972); United States ex rel. Neal v. Wolfe, 346 F.Supp. 569 (E.D.Pa.1972); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.l971); Bundy v. Cannon, 328 F.Supp. 165 (D.Md.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971).

      . The class designated by the district judge was composed of all those inmates who may be subject to disciplinary charges and criminal charges stemming from the Attica disturbance of September 9-13, 1971.

      . It is to be noted that the State consented to a stay of disciplinary proceedings and was not enjoined; had it been enjoined, appeal would have lain only to the Supreme Court.

      . In addition to the cases referred to in the Nieves II dissent, note 17, at 812, add the compelling Ninth Circuit opinion of Judge Hufstedler (joined by Judge Tuttle of the Fifth Circuit), Clutchette v. Procunier, 497 F.2d 809 (9th Cir. Apr. 25, 1974). See also Procunier v. Martinez, 416 U.S. 390, 94 S.Ct. 1800, 40 L.Ed.2d 224 (U.S. Apr. 29, 1974).


source: Caselaw Access Project

author: BIGGS, Circuit Judge.

license: Public Domain

text:
    SIATA INTERNATIONAL U. S. A., INC., Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, Appellant.
    No. 73-1835.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 25, 1974.
    Decided June 11, 1974.
    M. Richard Kalter, Philadelphia, Pa., Steven J. Stein, New York City, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Proskauer, Rose, Goetz & Mendelsohn, New York City, for appellee.
    Joseph Head, William T. Campbell, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellant.
    Before BIGGS, GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

The plaintiff-appellee, Siata International U.S.A., Inc. (Siata U.S.) was engaged in the business of importing automobiles from Italy to the United States, and entered into a sales agreement dated May 10, 1969 with Siata Auto SPA (Siata Italy), an Italian automobile manufacturer, for the purchase of 1350 “Spring” model automobiles at a price of $1,355.00 each, delivery to be made ex the Siata Italy plant, according to a specified monthly schedule. An “Agreement for Performance Bond” which states that it is “based upon the sales contract of May 10, 1969” for the delivery of 1250 cars was entered into upon some date not shown in the record.

The bond itself, issued by defendant-appellant Insurance Company of North America (INA) (P-4), is designated on its face as an “Advance Payment Bond”, and is as follows:

Advance Payment Bond

INA

INSURANCE COMPANY OF NORTH AMERICA PHILADELPHIA

Know all men by these presents, That we, Siato Auto S.p.A. Strada di Lanzo 221, Turin, Italy (hereinafter called “Principal”), as Principal, and the Insurance Company of North America, a Corporation organized and existing under the laws of the State of Pennsylvania, United States of America, (hereinafter called “Surety"), as Surety, are held and firmly bound unto Siata International U.S.A., Inc., 116-11 Hillside Avenue, New York, New York (hereinafter called “Obligee”), in the penal sum of One Hundred Thousand and no/100 Dollars ($100,000.00), good and lawful money of the United States of America, for the payment of which, well and truly to be made, we find ourselves, our heirs, administrators, executors, successors and assigns, jointy and severally, firmly by these presents.

Sealed with our seals and dated this 30th day of June A.D. 1969.

Whereas, the above bounden Principal has entered into a certain written contract with the above Named Obligee, dated the 10th day of May, 1969 for furnishing and delivery of One Thousand Two Hundred Fifty (1,250) Spring Model automobiles with delivery to be completed within the period specified in the contract,

And, whereas, the above Named Obligee has agreed to advance to the Principal the total sum of One Hundred Thousand and no/100 Dollars ($100,000.) with such sum to be repaid during the term of the contract by deduction from the agreed purchase price an amount not exceeding Eighty Dollars ($80.00) for each vehicle delivered to the Obligee.

Now, therefore, the condition of the above obligation is such, that if the above bounden Principal shall repay to the above Named Obligee the lesser of the total sum of One Hundred Thousand and no/100 Dollars in the event of nondelivery of all of the 1,250 vehicles; or an amount equal to Eighty Dollars ($80.00) per vehicle for Non-Delivery of each vehicle less than the total of 1,250 vehicles contracted for, then this obligation is void; otherwise to be and remain in full force and effect.

Provided, however, this bond is executed by the Surety, upon the express condition that no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the Obligee named herein; and the obligation of the Surety is and shall be construed strictly as one of suretyship only.

Siata Auto, S.P.A.

Insurance Company of North America

Siata Italy breached the May 10 contract by failing to deliver some portion of the specified number of cars. When demands for payment from Siata Italy under the May 10 contract and from INA under the bond in suit proved fruitless, Siata U.S. instituted this action against INA in the District Court for the Eastern District of Pennsylvania.

It will be observed that the condition of the bond is contained in its next to last paragraph and provides that if Siata Italy shall “repay” to the obligee Siata U.S. the total sum of $100,000 “in the event of non-delivery of all of the 1250 vehicles”, “or an amount equal to $80 per vehicle for Non-Delivery of each vehicle less than the total of the 1250 vehicles contracted for, then the obligation is to be void.” It is upon the foregoing terms according to the bond that INA stands liable.

Siata U.S., in its amended complaint, premised INA’s alleged liability on two distinct interpretations of the bond in issue. Count one of the complaint characterized the agreement as an advance payment bond, intended to ensure that prepayments, which were to be made to Siata Italy and recovered by a reduction in the price of each car, would be repaid in the event Siata Italy failed to deliver. Under this construction, the bond would protect Siata U.S. to a maximum of $100,000.00 in advance payments. Count two of the complaint characterized the agreement as simply a performance bond, intended to ensure that Siata Italy delivered the cars as scheduled and providing a penalty for each ear which was not delivered.

The numerous defenses raised by INA in its answer were primarily material to its alleged liability under an advance payment bond.

The first count of the amended complaint was withdrawn by the plaintiff, who proceeded solely on the basis of the bond being one to secure performance.

The ensuing controversy as to the meaning of the bond was determined by the district court at the beginning of trial. The learned district judge deemed the bond to be a clear and unambiguous obligation, entered into by INA, to pay $80.00 per car for all undelivered cars up to 1250. Subsequently, a directed verdict for plaintiff was granted on the issue of liability and the sole issues submitted to the jury were a determination of the number of cars which were not delivered and the corresponding damages. INA challenges this holding and asserts that the language of the bond unambiguously contemplates a guarantee of repayment of a loan.

On examination of the copy of the bond in evidence, we see that it is designated an “Advance Payment Bond” and though the nomenclature is unimportant we find that the first “Whereas” clause states that Siata Italy as principal agreed by a written contract dated May 10, 1969, to furnish and deliver to Siata U.S., 1250 “Spring Model automobiles [to be manufactured by Siata Italy] . . . within the period specified in the contract . . . ”. This may be considered to suggest the bond is a performance bond, nonetheless, the second “Whereas” clause refers to an agreement for Siata U.S. to advance $100,000.00 to Siata Italy which is to be repaid by deducting $80.00 from the cost of each of the 1250 cars to be delivered. This suggests very plainly an advance payment bond. The “Now, Therefore” clause, “The Condition of the Bond”, seems to speak both of performance and advance payment by referring to a strict obligation to pay $80.00 per undelivered car in the event of default by the principal but casting this obligation in terms of repayment. As a matter of fact, the bond itself is a miracle of ambiguity. The district court should have received evidence to clear up the ambiguity instead of attempting .to construe the instrument on its face. See, e. g., Janos v. Peck, 21 A.D.2d 529, 251 N.Y.S.2d 254, aff’d, 15 N.Y.2d 509, 254 N.Y.S.2d 115, 202 N.E.2d 560 (1964); In re Plasterer’s Estate, 413 Pa. 513, 198 A.2d 525 (1964); Kennedy v. Erkman, 389 Pa. 651, 133 A.2d 550 (1957). See also, Annot., 40 A.L.R.3d 1384 (1971); 17 Am.Jur.2d Contracts § 272 (1964); 4 W. Jaeger, Williston on Contracts § 629 (1961).

' The trial court excluded all defense exhibits relating to the transactions between Siata Italy and Siata U.S. and INA, from going to the jury on the grounds that they related to defenses which were “overruled” by the finding that the instrument in suit was a performance bond. The only evidence allowed was that relating to the number of ears delivered. As we have said, the court instructed the jury to bring in a verdict for the plaintiff, Siata U.S., leaving only the issue of damages for the jury. This was repeatedly objected to by INA. Should the district court, upon considering all the circumstances, determine the bond to be one to ensure repayment of advances, it will be necessary to allow INA to put in defense testimony therefore. The case is one apt for special verdicts and interrogatories pursuant to Rule 49, Fed.R.Civ.Proc., 28 U.S.C. See 4 W. Jaeger, Williston on Contracts § 616 (1961).

We, of course, do not suggest or decide the merits of any defenses raised by INA such as whether any variations in the contracts may be deemed to have vitiated the obligation of the surety or whether advances have in fact been repaid.

The court below, as was required by our decision in Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205 (3 Cir.), cert. denied 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970), looked to the law of the place it deemed had the most significant relationship to the parties, transaction and issue, in applying the law of Pennsylvania. It will be noted that the contract of May 10, 1969, Exhibit P-2, provides that the agreement shall be governed and interpreted in accordance with the laws of the State of New Jersey, whereas the “Agreement for Performance Bond”, Exhibit P-3, referred to above, provides, “This agreement shall be governed by and interpreted in accordance with the law of New York State.” Upon remand, the district court may well desire to reconsider the effect of these declarations. We point out that in considering additional evidence to determine whether the bond is an advance payment bond or a performance bond, additional state interests and contacts may become manifest. We conclude, however, that the district judge was correct in applying this theory.

INA objected to the evidence of Benjamin, who it characterizes as a financial adviser of Siata U.S., and deems the evidence offered in respect to the number of cars delivered to the plaintiff’s agent in Italy to be grossly insufficient and not within the provisions of 28 U.S. C. § 1732. INA states its position as follows: “We thus have a ‘financial adviser’, employed by a non-party, testifying from the records of a New York bank (which records apparently incorporated reports received from an Italian bank, which reports in turn were based on untrustworthy reports received from plaintiff’s Italian agent) as to how many automobiles were delivered to plaintiff’s Italian agent in Italy!” A foundation for the admission of the records into evidence under § 1732 must be laid properly. The records were those of Marine Midland Grace Trust Company of New York, whereas Benjamin who testified as to them was an adviser to Siata U.S. and an employee of State Funding Corporation. It does not appear that Benjamin was qualified to testify as to the records of the bank, nor does it appear that he sufficiently laid the basis for the admission into evidence of the records; however, once an adequate basis be laid, the provisions of § 1732 make it clear that such objections go to the weight of the evidence offered by way of business records as opposed to their admissibility.

Counsel are admonished to examine the law on this subject carefully and brief it adequately to the end that they may be of some assistance to the trial judge.

INA was at liberty to bring in contravening testimony if it desired to do so and it could have been received by the district court despite its ruling as to the bond being a performance bond.

The judgment will be reversed and the cause remanded to the district court with directions to grant a new trial and at that trial to proceed in conformity with this opinion.

      . The discrepancy in the number of cars is not explained. It apparently results from the exclusion of 100 cars, due in May 1969, from the delivery schedule listed in the “performance” bond agreement but included in the May 10,1969 contract.

      . At p. 37a, Mr. Head, counsel for appellant, says: “Sir, I think it should be stated for the record the plaintiff has withdrawn Count 1 of the complaint and is now proceeding solely on Count 2. Is that correct?” The Court: “That is correct.”

      . It is noteworthy that the agreement between Siata Italy and Siata U.S. for a bond is entitled “Agreement for Performance Bond” (P-3).

      . The appellant insists that New York is the “center of gravity” and that New York law • should be applied, citing Hall & Co. v. Continental Casualty Co., 34 A.D.2d 1028, 310 N.Y.S.2d 950 (1970), to relieve it of all liability.


author: KOELSCH, Circuit Judge:

text:
    Lothar MOTSCHENBACHER, Plaintiff-Appellant, v. R. J. REYNOLDS TOBACCO COMPANY, a corporation, and William Esty Company, Defendants-Appellees.
    No. 72-1419.
    United States Court of Appeals, Ninth Circuit.
    June 6, 1974.
    Robert Winckler, Los Angeles, Cal., for plaintiff-appellant.
    Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for defendants-appellees.

      Before KOELSCH, HUFSTEDLER and TRASK, Circuit Judges.
   OPINION

KOELSCH, Circuit Judge:

Lothar Motsehenbacher appeals from the district court’s order granting summary judgment in favor of defendants in his suit seeking injunctive relief and damages for the alleged misappropriation of his name, likeness, personality, and endorsement in nationally televised advertising for Winston cigarettes. The jurisdiction of the district court is founded on diversity of citizenship, 28 U.S.C. § 1332; appellate jurisdiction is predicated on 28 U.S.C. § 1291.

The “facts” on which the district court rendered summary judgment are substantially as follows: Plaintiff Motsehenbacher is a professional driver of racing cars, internationally known and recognized in racing circles and by racing fans. He derives part of his income from manufacturers of commercial products who pay him for endorsing their products.

During the relevant time span, plaintiff has consistently “individualized” his cars to set them apart from those of other drivers and to make them more readily identifiable as his own. Since 1966, each of his cars has displayed a distinctive narrow white pinstripe appearing on no other car. This decoration has adorned the leading edges of the cars’ bodies, which have uniformly been solid red. In addition, the white background for his racing number “11” has always been oval, in contrast to the circular backgrounds of all other cars.

In 1970, defendants, R. J. Reynolds Tobacco Company and William Esty Company, produced and caused to be televised a commercial which utilized a “stock” color photograph depicting several racing cars on a racetrack. Plaintiff’s car appears in the foregound, and although plaintiff is the driver, his facial features are not visible.

In producing the commercial, defendants altered the photograph: they changed the numbers on all racing cars depicted, transforming plaintiff’s number “11” into “71”; they “attached” a wing-like device known as a “spoiler” to plaintiff’s car; they added the word “Winston,” the name of their product, to that spoiler and removed advertisements for other products from the spoilers of other cars. However, they made no other changes, and the white pinstriping, the oval medallion, and the red color of plaintiff’s car were retained. They then made a motion picture from the altered photograph, adding a series of comic strip-type “balloons” containing written messages of an advertising nature; one such balloon message, appearing to emanate from plaintiff, was: “Did you know that Winston tastes good, like a cigarette should?” They also added a sound track consisting in part of voices coordinated with, and echoing, the written messages. The commercial was subsequently broadcast nationally on network television and in color.

Several of plaintiff’s affiants who had seen the commercial on television had immediately recognized plaintiff’s ear and had inferred that it was sponsored by Winston cigarettes.

On these facts the district court, characterizing plaintiff’s action as one “for damages for invasion of privacy,” granted summary judgment for defendants, finding as a matter of law that

“ . . . [t]he driver of car No. 71 in the commercial (which was plaintiff’s car No. 11 prior to said change of number and design) is anonymous; that is, (a) the person who is driving said car is unrecognizable and unidentified, and (b) a reasonable inference could not be drawn that he is, or could reasonably be understood to be plaintiff, Lothar Motschenbacher, or any other driver or person.”

“Summary judgment of course is proper only where there is no genuine issue of any material fact or where viewing the evidence ... in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law.” See Stansifer v. Chrysler Motors Corporation, 487 F.2d 59, 63 (9th Cir. 1973), and cases cited therein.

Since the Winston commercial was broadcast on television throughout the United States, our initial inquiry in determining the correct legal standards to be applied on the motion for summary judgment is directed at the proper choice of law. In a diversity case, a federal court must follow the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes the conflict of laws rules of that state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Moore v. Greene, 431 F.2d 584, 589-590 (9th Cir. 1970).

In this case, we believe that California courts, under Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), would apply California local law. By the same token, noting the novelty of the factual situation presented and recognizing that the parties have each cited general case law in support of their respective positions, we think that California courts would not hesitate to consider relevant precedent from other jurisdictions in determining California local law.

In California, as in the vast majority of jurisdictions, the invasion of an individual’s right of privacy is an actionable tort. Melvin v. Reid, 112 Cal.App. 285, 297 P. 91 (1931). In 1960 Dean Prosser, drawing on over 300 eases, observed that the tort is actually a complex of four separate and distinct torts, each of which is decided under an “invasion of privacy” label. See Prosser, Privacy, 48 Calif.L.Rev. 383 (1960); Prosser, Law of Torts 804 (4th ed. 1971). Prosser’s four categories are: (1) intrusion upon the plaintiff’s seclusion or solitude; (2) public disclosure of private facts; (3) placing the plaintiff in a false light in the public eye; and (4) appropriation, for defendant’s advantage, of plaintiff’s name or likeness. The case before us is of the fourth variety — commercial appropria tion.

California courts have observed that “[t]he gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community.” Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 86, 291 P.2d 194, 197 (1955). But this observation is perhaps better applied to Prosser’s first three categories than it is to the appropriation cases.

It is true that the injury suffered from an appropriation of the attributes of one’s identity may be “mental and subjective” — in the nature of humiliation, embarrassment, and outrage. Fairfield, supra, at 86, 291 P.2d 194. However, where the identity appropriated has a commercial value, the injury may be largely, or even wholly, of an economic or material nature. Such is the nature of the injury alleged by plaintiff.

Some courts have protected this “commercial” aspect of an individual’s interest in his own identity under a privacy theory. See, e. g., Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458 (1967); see generally Treece, Commercial Exploitation of Names, Likenesses, and Personal Histories, 51 Texas L.Rev. 637 (1973); Netterville, Copyright and Tort Aspects of Parody, Mimicry and Humorous Commentary, 35 S.Cal.L.Rev. 225, 253-254, 267-275 (1962); and Annotation, Invasion of Privacy by Use of Plaintiff’s Name or Likeness in Advertising, 23 A.L.R.3d 865 (1969).

Others have sought to protect it under the rubric of “property” or a so-called “right of publicity.” See, e. g., Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, 485-493 (3d Cir. 1956), cert. den., 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956); Haelan v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953), cert. den., 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343 (1953), noted in Nimmer, The Right of Publicity, 19 Law & Contemp.Prob. 203 (1954), 62 Yale L.J. 1123 (1953), and 41 Geo.L.J. 583 (1953); Uhlaender v. Henricksen, 316 F.Supp. 1277, 1280-1283 (D.Minn.1970); Canessa v. J. I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62 (1967). Cf. Cepeda v. Swift & Co., 415 F.2d 1205, 1206 (8th Cir. 1969) (dictum); O’Brien v. Pabst Sales Co., 124 F.2d 167, 170-171 (5th Cir. 1941) (dissent); Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401, 407 (E.D.Pa., 1963) (dictum). See also Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw.U.L.Rev. 553 (1961).

Prosser synthesizes the approaches as follows:

“Although the element of protection of the plaintiff’s personal feelings is obviously not to be ignored in such a case, the effect of the appropriation decisions is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trade mark in his likeness. It seems quite pointless to dispute over whether such a right is to be classified as ‘property’; it is at least clearly proprietary in its nature. Once protected by the law, it is a right of value upon which the plaintiff can capitalize by selling licenses.” (footnotes omitted)

Law of Torts (4th ed. 1971), at 807.

So far as we can determine, California has no case in point; the state’s appropriation cases uniformly appear to have involved only the “injury to personal feelings” aspect of the tort. Nevertheless, from our review of the relevant authorities, we conclude that the California appellate courts would, in a case such as this one, afford legal protection to an individual’s proprietary interest in his own identity. We need not decide whether they would do so under the rubric of “privacy,” “property,” or “publicity”; we only determine that they would recognize such an interest and protect it.

We turn now to the question of “identifiability.” Clearly, if the district court correctly determined as a matter of law that plaintiff is not identifiable in the commercial, then in no sense has plaintiff’s identity been misappropriated nor his interest violated.

Having viewed a film of the commercial, we agree with the district court that the “likeness” of plaintiff is itself unrecognizable; however, the court’s further conclusion of law to the effect that the driver is not identifiable as plaintiff is erroneous in that it wholly fails to attribute proper significance to the distinctive decorations appearing on the car. As pointed out earlier, these markings were not only peculiar to the plaintiff’s cars but they caused some persons to think the car in question was plaintiff’s and to infer that the person driving the car was the plaintiff.

Defendant’s reliance on Branson v. Fawcett Publications, Inc., 124 F.Supp. 429 (E.D.Ill.1954), is misplaced. In Branson, a part-time racing driver brought suit for invasion of privacy when a photograph of his overturned racing car was printed in a magazine without his consent. In ruling that “the photograph * * * does not identify the plaintiff to the public or any member thereof,” 124 F.Supp. at 433, the court said:

“[T]he automobile is pointed upward in the air and the picture shows primarily the bottom of the racer. The backdrop of the picture is not distinguishable. No likeness, face, image, form or silhouette of the plaintiff or of any person is shown. From all that appears from the picture itself, there is no one in the ear. Moreover, no identifying marks or numbers on the car appear. . . . Plaintiff does not even assert that the car he was driving was the same color as that which appears in the colored reproduction.”

124 F.Supp. at 432.

But in this case, the car under consideration clearly has a driver and displays several uniquely distinguishing features.

The judgment is vacated and the cause is remanded for further proceedings.

      . We of course express no opinion regarding what facts the evidence may ultimately establish ; we simply accept the statements of plaintiff’s affiants as true for tlie purposes of the motion.

      . The district court concluded :
      “3. Not having been identified in the commercial either visually, aurally, explicitly, or inferentially, plaintiff’s action fails, and the Court is authorized to grant defendants’ Motion for Summary Judgment.”

      . We employ the definition of “local law” set forth in Restatement (Second) of Conflict of Laws, § 4 (1971), as follows :
      “[T]lie ‘local law’ of a state is the body of standards, principles and rules, exclusive of its rules of Conflict of Laws, which the courts of that state apply in the decision of controversies brought before them.”

      . First, it appears that California, the state of plaintiff’s residency, has a greater interest in compensating its residents for injuries of tlie type here alleged than other jurisdictions may have in compensating foreigners so injured within their respective borders. Second, in cases of this type, the state of plaintiff’s residency is normally the state of the greatest injury. Third, California, as the forum, has an interest in convenience and presumably can most easily ascertain its own law. And fourth, California’s Uniform Single Publication Act (Civ.Code § 3425.3) effectively advances the universal interest in avoiding a multiplicity of suits and assisting the orderly administration of justice.

      . Compare Time, Inc. v. Hill, 385 U.S. 374, 383 n. 7, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) [citing Prosser, Law of Torts 831-832 (3d ed. 1964), for the proposition that “a ‘right of privacy’ has been recognized at common law in 30 States plus the District of Columbia and by statute in 4 States”!, with Prosser, Law of Torts 804 (4th ed. 1971) [observing that “the right of privacy is by this time recognized and accepted in all but a very few jurisdictions” and noting at 804 n. 16 six jurisdictions recently added to the list.]

      . See also Briscoe v. Reader’s Digest Association, Inc., 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34 (1971); Carmel-By-The-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P. 2d 225 (1970); Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (1969); Gill v. Hearst Publishing Co., 40 Cal.2d 224, 253 P.2d 441 (1953); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952); Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Stilson v. Reader’s Digest Association, Inc., 28 Cal.App.3d 270, 104 Cal.Rptr. 581 (1972); Williams v. Weisser, 273 Cal.App.2d 726, 78 Cal.Rptr. 542 (1969); Grimes v. Carter, 241 Cal.App.2d 694, 50 Cal.Rptr. 808 (1966); Leavy v. Cooney, 214 Cal.App.2d 496, 29 Cal.Rptr. 580 (1963); Carlisle v. Fawcett Publications, 201 Cal.App.2d 733, 20 Cal. Rptr. 405 (1962); Werner v. Times-Mirror Co., 193 Cal.App.2d 111, 14 Cal.Rptr. 208 (1961); James v. Screen Gems, Inc., 174 Cal.App.2d 650, 344 P.2d 799 (1959); Kelly v. Johnson Publishing Co., 160 Cal.App.2d 718, 325 P.2d 659 (1958); Smith v. National Broadcasting Co., 138 Cal.App.2d 807, 292 P.2d 600 (1956); Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955); 158 Cal.App.2d 53, 322 P.2d 93 (1958); Stryker v. Republic Pictures Corp., 108 Cal.App.2d 191, 238 P.2d 670 (1951); Cohen v. Marx, 94 Cal.App.2d 704, 211 P.2d 320 (1949); Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577 (1942); Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939).

      . The California Supreme Court recognized Prosser’s four-pronged system of classification in Kapellas v. Kofman, 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (1969), at 36 n. 16, though it there suggested that a “false light” cause of action in California is equivalent to, and meets the same requirements of, a libel claim. See also Briscoe v. Reader’s Digest Association, Inc., 4 Cal.3d 529, 543, 93 Cal.Rptr. 866, 483 P.2d 34 (1971).

      . In Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955), the California Court of Appeal observed at 86, 291 P.2d at 197:
      “The exploitation of another’s personality for commercial purposes constitutes one of the most flagrant and common means of invasion of privacy.”

      . As Dean Prosser noted in his Law of Torts (4th ed. 1971), at 805-806:
      “It is the plaintiff’s name as a symbol of his identity that is involved here, and not as a mere name. Unless there is some tortious use made of it, there is no such thing as an exclusive right to the use of a name; and any one can be given or assume any name he likes. It is only when he makes use of the name to pirate the plaintiff’s identity for some advantage of his own * * * that he becomes liable. It is in this sense that ‘appropriation’ must be understood.”

      . It would be wholly unrealistic to deny that a name, likeness, or other attribute of identity can have commercial value. As the court observed in Uhlaender v. Henricksen, 316 F.Supp. 1277 (D.Minn.1970), at 1283:
      “A name is commercially valuable as an endorsement of a product or for financial gain only because the public recognizes it and attributes good will and feats of skill or accomplishments of one sort or another to that personality.”

        See also notes 11 and 14, infra.

      . Generally, the greater the fame or notoriety of the identity appropriated, the greater will be the extent of the economic injury suffered. However, it is quite possible that the appropriation of the identity of a celebrity may induce humiliation, embarrassment and mental distress, while the appropriation of the identity of a relatively unknown person may result in economic injury or may itself create economic value in what was previously valueless. In this latter context, see Canessa v. J. I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62, 75 (1967). See also Kalven, Privacy in Tort Law — Were Warren and Brandéis Wrong?, 31 Law & Contemp. Prob. 326, 331 (1966); Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 985-991 (1964).

      . For example, in Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577 (1942), where an actress’ name was appropriated in an advertisement which “cast doubt on her moral character,” the court spoke only of the traditional compensation for injury to her feelings. 53 Cal.App.2d at 210, 127 P.2d at 580. Similarly, in Fairfield, supra, an attorney whose name, personality, and endorsement had been appropriated in an advertisement was compensated only “for injury to his peace of mind and to his feelings.” 138 Cal.App.2d at 88, 291 P.2d at 198. And even in the recent decision in Stilson v. Reader’s Digest Association, Inc., 28 Cal.App.3d 270, 104 Cal.Rptr. 581 (1972), the Court of Appeal reiterated that the injury in a privacy case is “mental and subjective.” 28 Cal.App.3d at 274, 104 Cal.Rptr. 581.

      . Two recent decisions, Williams v. Weisser, 273 Cal.App.2d 726, 78 Cal.Rptr. 542 (1969), and Stilson v. Reader’s Digest Association, Inc., 28 Cal.App.3d 270, 104 Cal.Rptr. 581 (1972), suggest that a “commercial” interest in one’s identity may be protected in California under the “privacy” rationale of Fairfield. In Weisser, a university professor brought suit for invasion of privacy and infringement of common law copyright when the defendant, without his consent, published student notes of plaintiff’s classroom lectures under plaintiff’s name. Plaintiff prevailed under both theories and was awarded compensatory damages based on a publisher’s testimony of the commercial value of the notes. In Stilson, the court noted that “if commercial exploitation be found, [plaintiffs] would be entitled to nominal recoveries upon little more than an election to proceed” and that “each such plaintiff has an established right to show the mental anguish, as well as the financial detriment, which may have been caused to him by the use of his name in letters to * * * other persons. This * * * could well concern the status and business relationship to him of the recipients of the letters using his name.” 28 Cal.App.3d at 273-274, 104 Cal.Rptr. at 583.

      . The interest may likewise be protectable as “property.” In Yuba River Power Co. v. Nevada Irrigation District, 207 Cal. 521, 523, 279 P. 128, 129 (1929), a water rights ease, the California Supreme Court said in construing a statute: “The term ‘property’ is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value.” In Republic Pictures Corp. v. Rogers, 213 F.2d 662, 665-666 (9th Cir. 1954), this court interpreted California law in a somewhat different context, observing that reproductions of the “name, voice and likeness” of a performer are valuable because of the notoriety of the performer and his great public following. And in a second appeal of Fairfield, supra, 158 Cal.App.2d 53, 56, 322 P.2d 93 (1958), relating to the question of damages, the California Court of Appeal recognized that the names of celebrities may have substantial commercial value. Accord, In Re Weingand, 231 Cal.App.2d 289, 293-294, 41 Cal.Rptr. 778 (1964).

      . Commentators have noted that at least two California trial courts have already recognized the “right of publicity.” Gordon, supra, at 663-664; Note, Commercial Appropriation of an Individual’s Name, Photograph or Likeness: A New Remedy for Californians, 3 Pacific L.J. 651, 663-664 (1972). While these decisions bind neither this court nor the appellate courts of California, we shall not deny their existence. Moreover, we place little reliance on Strickler v. National Broadcasting Company, 167 F.Supp. 68, 70 (S.D.Cal.1958), in which the district court refused “to blaze the trail to establish in California a cause of action based upon the right of publicity” upon the plaintiff’s specific admission that the right had not yet received recognition there. Furthermore, the factual situation in Strickler involved a “public disclosure of private facts” more than it did an “appropriation” and the district court notably upheld the plaintiff’s complaint for invasion of privacy.

      . Two recent instances of the expression of California public policy lend additional support to our conclusion. First, Article I, § 1, of the California Constitution was amended in November, 1972, to include “pursuing and and obtaining * * * privacy” as an alienable right. And second, the California legislature recently enacted Civ.Code § 3344, providing that anyone who knowingly uses another’s name, photograph, or likeness for purposes of advertising or solicitation shall be liable for any damages sustained by the persons injured, in an amount no less than $300. The “knowing use” requirement of the statute conflicts with the Fairfield language that “inadvertence or mistake is no defense where the publication does in fact refer to the plaintiff in such manner as to violate his right of privacy.” However, one commentator has observed that inclusion of the “knowing use” requirement in the statute was occasioned by the penal damages which the bill initially provided for. See Note, Commercial Appropriation of an Individual’s Name, Photograph or Likeness: A New Remedy for Californians, 3 Pacific L.J. 651, 659 (1972). Moreover, the statute’s concluding subsection states that “[t]he remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.”

      . The addition of a “Winston” spoiler to the plaintiff’s car does not necessarily render the automobile impersonal, for plaintiff’s cars have frequently used spoilers; it may be taken as contributing to the inference of sponsorship or endorsement. The alteration which may affect identifiability is the change in numbering, but this alteration does not preclude a finding of identifiability by the trier of fact.

      . We have no occasion to discuss the measure of damages in the instant ease, and our conclusion renders consideration of whether plaintiff has a cause of action under the California law of trade names or unfair competition unnecessary.