author: DYER, Circuit Judge:

text:
    Hugh ANSLEY, Petitioner-Appellant, v. Leroy STYNCHCOMBE, Sheriff, Respondent-Appellee.
    No. 72-3189.
    United States Court of Appeals, Fifth Circuit.
    June 12, 1973.

      Beverly Agee, John Nuckolls, Edward T. M. Garland, Atlanta, Ga., for petitioner-appellant.
    Joel M. Feldman, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Lewis R. Slaton, Carter Goode, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
    Before WISDOM, DYER and INGRAHAM, Circuit Judges.
   DYER, Circuit Judge:

Ansley was convicted by a jury on the second count of a two count indictment, charging that he aided and abetted Petree, an Alderman of the City of Atlanta, in unlawfully influencing legislative action. Under instructions from the State trial judge, the same jury simultaneously adquitted Ansley on count 1, which charged that he aided and abetted Petree in the solicitation of a bribe. The Georgia Court of Appeals affirmed Ansley’s conviction, and both the Georgia Supreme Court and the United States Supreme Court denied certiorari. Ansley v. State, 1971, 124 Ga.App. 670, 185 S.E.2d 562, cert. denied, 1972, 408 U. S. 922, 92 S.Ct. 2503, 33 L.Ed.2d 341. Asserting the same contentions as raised on direct appeal in the State court, Ansley then sought and was denied habeas relief in the district court below. We affirm.

On the basis of an ex parte verified petition of the District Attorney of Atlanta and a supporting affidavit of one of his assistants, a State judge in Atlanta issued an investigative warrant and order authorizing the surveillance of Ansley, including the use of electronic devices, for the purpose of hearing and recording conversations between Ansley and other named and unnamed persons so as to obtain evidence relating to the bribery charges. Pursuant to this authorization, electronic equipment was installed on telephones in two rooms of a local motel to record telephone conversations between Ansley and Crist, an undercover agent of the District Attorney’s office, who was posing as a representative of a land developer. Crist used the telephone to place a long distance call to Ansley. Ansley later returned the call and agreed to travel to Atlanta to meet with Crist at the motel. Other State agents listened to the conversation and recorded it, but of course this was done with Crist’s consent. Prior to the time that Ansley arrived at the motel, the District Attorney’s office obtained warrants for the arrest of Petree and Ansley. Additional electronic devices were deployed in the motel room and Crist was equipped with a small transmitter to relay all of his conversations with Ansley and Petree, whether inside or outside of the bugged room, to another room where other agents could listen to and record them.

After Ansley arrived at the motel, he met with Crist and other undercover agents, posing as representatives of other land developers. They were joined by Petree and their conversations in the motel room, by the swimming pool, and while in the motel bar were recorded. When it became apparent that the actual bribe was not going to be consummated at that time, Ansley and Petree were arrested pursuant to the warrants obtained earlier. Later the recordings of the conversations were admitted into evidence at Ansley’s and Petree’s joint trial.

Ansley’s first contention on appeal is that the essential elements of count 1 (bribery) and of count 2 (improperly influencing legislative action) are the same and that he was, therefore, twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed.2d 707. Count 1 of the indictment charged Ansley with aiding and abetting Petree in the solicitation of $30,000 for Petree “to use his influence and to obtain his vote to secure the passage of” zoning legislation pending before the Atlanta Board of Aldermen in violation of Ga.Code Ann. § 26-2301. In count 2, Ansley was charged with violating Ga. Code Ann. § 26-2304(b) in that he aided and abetted Petree in soliciting $30,000 “for an agreement to procure the passage of” the same pending legislation.

Fundamentally, resolution of this issue depends upon interpretation of the Georgia statutes involved. Great, if not controlling, weight must be given to the Georgia courts’ interpretation of these statutes before constitutional issues based on the questioned statutes can be determined by federal courts.

On direct appeal, the Georgia Court of Appeals explained that § 26-2301 is restricted to bribes to influence an official in his performance of any act related to functions of his office or his employment, whereas § 26-2304(b) includes the sale of the official’s influence on others who are members of a legislative body. Ansley v. State, supra,, 185 S.E.2d at 566:

[To] the extent that it is alleged under Count 1 that Petree, with Ansley as his abettor, solicitated the sale of his own vote as a member of the legislative body, the alleged transaction is an offense, under Code Ann. § 26-2301(2), but should it appear that the solicitation was for an agreement, expressed or implied, to procure or attempt to procure the passage or defeat of legislation, it involves the attempted sale of his influence on other members of the legislative body, and comes under Code Ann. § 26-2304(b). In brief, we see a distinction in accusing Petree, in conjunction with Ansley, of soliciting the sale of his own vote, and in accusing him, in conjunction with another, of soliciting the sale of his influence in procuring favorable legislative action, which might or might not include his own vote.

Thus the Georgia court concluded that the provisions define separate offenses, and we agree that this is a reasonable interpretation.

Ansley argues, nevertheless, that he was placed in jeopardy once for soliciting a bribe for Petree to procure the passage of legislation (count 2) when the jury acquitted him on count 1, since the factual allegations in count 1 charged that the solicitation of the $30,000 was for both Petree’s vote and his influence. Ansley reasons that, in violation of the Constitution, he was placed in jeopardy a second time for this offense when the jury proceeded to consider the charges in count 2. We disagree. Significantly, even though the facts alleged in count 1 may have improperly embraced violations of both § 26-2301 (influencing Petree in the performance of his official duties — his vote) and § 26-2304(b) (securing Petree’s agreement to procure the passage of favorable legislation by whatever means available to him), we think that, in view of the use of the conjunction and in count 1, the jury could not have convicted Ansley under that count unless it believed that the agreement was for Petree to sell both his vote and his influence. On the other hand, given the language of the indictment, if the jury believed, as it apparently must have, that the agreement was for either the sale of his vote or the sale of his influence with the other Alderman or for some other method of obtaining passage of the legislation, it could have convicted him only on count 2. Thus, although the facts alleged in count 1 may have improperly implied that that count covered the influence peddling proscribed by § 26-2304(b), this defect does not rise to constitutional dimensions. Indeed, if error at all, this error was in favor of Ansley; for the elements of proof required by count 1 were greater than demanded by § 26-2301. If Ansley had been tried under an undeniably correct count 1, he could have been convicted under § 26-2301 — which carries a stiffer maximum sentence than § 26-2304(b) — -for merely selling Petree’s vote; however, given the actual wording of the indictment, Ansley could only have been convicted under count 1 if the agreement was to sell both Petree’s vote and his influence. Moreover, assuming that the indictment had been correctly worded and that proper limiting instructions were given to the jury, then if the agreement had been to sell both Petree’s vote and his influence, Ansley could have been convicted under § 26-2301 for the sale of Petree’s vote and also convicted under § 26-2304(b) for selling Petree’s influence with other members of the Board of Aldermen. However, because the State trial judge viewed the crimes as different aspects of the same offense rather than distinct offenses, in accordance with the guidelines of Ga. Code Ann. § 26-506(a) (2), which protect an accused from conviction “of more than one crime if . the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct,” he instructed the jury that if it should find Ansley guilty on one count, it was required to acquit him on the other. Thus the judge’s jury instructions and the wording of count 1 together conferred a benefit on Ansley required neither by Georgia law, as we perceive it, nor by the Constitution. In short, any possible constitutional error concerning double jeopardy was prevented by the trial court’s instructions to the jury and by the inclusion of the conjunction and in count 1 of the indictment.

Ansley also raises numerous constitutional questions concerning the evidence obtained via the electronic surveillance. First, he maintains that the Georgia statute establishing the procedure for obtaining a warrant for electronic surveillance, Ga.Code Ann. § 26-3001 et seq., is inconsistent with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq., and is therefore violative of the Supremacy Clause of the Constitution. This contention is wholly without merit. The interceptions here in question were with the consent of Crist, and 18 U.S.C.A. § 2511(2) (c) expressly provides that it is not unlawful under the Act “for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” Ansley’s next argument is also frivolous. He asserts that despite Crist’s cooperation and consent to the eavesdropping, this contested evidence was obtained in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. It is now well settled that where a party to a communication consents to another’s listening to and recording his conversation, no search or seizure is involved. Nor does the Fourth Amendment protect a wrongdoer from the “risk that his companions may be reporting to the police.” United States v. White, 1971, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453. See United States v. Fanning, 5 Cir. 1973, 477 F.2d 45; United States v. Castillo, 5 Cir. 1971, 449 F.2d 1300; United States v. Avila, 5 Cir. 1971, 443 F.2d 792. Equally without merit is Ansley’s final contention that, because he was questioned by the undercover agents at the motel without first being given a Miranda warning, advised at that time that he was suspected of committing a criminal offense, and arrested pursuant to the warrant obtained earlier, the introduction of the tape recordings at his trial violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. Hoffa v. United States, 1966, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Koran v. United States, 5 Cir. 1972, 469 F.2d 1071.

The district court was correct in denying the writ of habeas corpus.

Affirmed.

      . Ga.Code Ann. § 26-2301 provides: A person commits bribery when:
      (1) He gives or offers to give to any person acting for or on behalf of the State or any political subdivision thereof or of any agency of either, any benefit, reward, or consideration to which he is not entitled with the purpose of influencing him in the performance of any act related to the functions of his office or employment; or
      (2) Acting for or on behalf of the State or any political subdivision thereof or of any agency of either, he solicits or receives any such benefit, reward, or consideration.
      A person convicted of bribery shall be punished by a fine of not more than $5,000, or by imprisonment of not less than one nor more than 20 years, or both.

      . Ga.Code Ann. § 26-2304(b) provides:
      Any officer or employee of a political subdivision who asks for or receives anything of value to which he is not entitled in return for an agreement to procure or attempt to procure the passage or defeat, the passage of any legislation by the legislative body of the political subdivision of which he is an officer or employee shall, upon conviction, be punished by imprisonment for not less than one nor more than five years.

      . See Coleman v. Alabama, 1970, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387; Kingsley International Picture Corp. v. Regents, 1959, 360 U.S. 684, 688, 79 S.Ct. 1362, 3 L.Ed.2d 1512; Albertson v. Millard, 1953, 345 U.S. 242, 244, 73 S.Ct. 600, 97 L.Ed. 983; United States v. Burnison, 1950, 339 U.S. 87, 89, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of R.R. Comm’rs, 1947, 332 U.S. 495, 499-500, 68 S.Ct. 167, 92 L.Ed. 99.


source: Caselaw Access Project

author: McENTEE, Circuit Judge.

license: Public Domain

text:
    Patricia BONNER-LYONS et al., Plaintiffs, Appellants, v. SCHOOL COMMITTEE OF the CITY OF BOSTON et al., Defendants, Appellees.
    No. 73-1150.
    United States Court of Appeals, First Circuit.
    Argued June 7, 1973.
    Decided June 29, 1973.
    Jonathan Shapiro, Boston, Mass., with whom Max D. Stern, Boston, Mass., Jack Greenberg, and Sylvia Drew, New York City, were on memorandum, for plaintiffs-appellants.
    Matthew T. Connolly, Boston, Mass., with whom DiMento & Sullivan, Boston, Mass., was on memorandum, for defendants-appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Plaintiffs, members of The Ad Hoc Parents’ Committee for Quality Education, alleging violations of their first amendment and equal protection rights, initiated this action under 42 U.S.C. § 1983 to enjoin defendants, the members of the School Committee of the City of Boston, from using the internal distribution system of the City’s schools to disseminate notices opposing the use of bussing to achieve school integration. In the alternative, plaintiffs sought an order compelling defendants to allow them to use this same system to distribute communications publicizing pro-bus-sing rallies. The trial court denied repeated requests for preliminary injunctive relief and this appeal followed. Since we conclude that by disseminating the notices in question the defendants utilized the school distribution system to support and promote the views of one group while denying the use of this system to groups representing other points of view, we reverse and grant the injunctive relief specified below.

The following facts are not in dispute. On March 29, 1973, defendants adopted an official resolution authorizing the distribution of notices to all Boston parents urging them to support a march and rally to be held at the Massachusetts State House on April 3. The purpose of this rally was to express opposition to the retention of the Massachusetts “Racial Imbalance Law,” 9 M.G.L.A. c. 71, §§ 37C-37D, and to the use of forced bussing as a tool to achieve racial integration in the schools. When plaintiffs requested defendants either to abandon this planned distribution or to permit the dissemination of pro-bussing notices, defendants refused to agree to either alternative. Plaintiffs then filed this suit and sought a temporary restraining order against the distribution. Thereafter, pursuant to defendants’ resolution, on March 30 the following notice was distributed by means of the school system’s “fan-out” distribution procedure to the approximately 97,000 students in the Boston system.

“Dear Parents:
At a meeting on March 29, 1973, a resolution of the School Committee to support the Parents’ March on the State House on Tuesday, April 3, 1973, at 10:00 A.M. was passed unanimously.
The purpose of the meeting is to inform the Governor and members of the Legislature that parents and the Boston School Committee stand united in opposition to forced busing and redistricting now being considered by the State Board of Education.
All parents are encouraged to write the Governor, the Senators and the Representatives in support of House Bill 3439 which opposes busing without the written consent of the parents.”

On April 3 the anti-bussing rally was held as scheduled and, on the following day, plaintiffs’ initial appeal from the denial of a temporary restraining order to prevent the distribution of these notices was dismissed as moot. On April 13, 1973, however, plaintiffs filed a further motion for injunctive relief seeking in particular an order requiring defendants to make the school distribution system available for the dissemination of notices concerning a pro-bussing rally tentatively set for late April. Due to difficulties in obtaining a hearing, however, this motion was not heard until April 30 and the proposed rally had to be postponed and ultimately cancelled. Thereafter, the trial court, finding, inter alia, that plaintiffs had failed to establish either that defendants had interfered with their first amendment rights or that a federal question was presented, issued a brief order denying the requested preliminary injunction.

On this background we find ourselves unable to agree with this disposition. As we read the March 30 notice, it seems apparent that this message tended to lend support and to mobilize opinion in favor of the position of those private parties who sponsored the April 3 “Parents’ March on the State House.” Under these circumstances, we conclude that defendants, by authorizing this distribution, sanctioned the use of the school distribution system as a forum for discussion of at least those issues which were treated in this notice. When de fendants’ refusal to allow plaintiffs access to this system is considered in light of this conclusion, the trial court’s error becomes manifest since it is well settled that once a forum is opened for the expression of views, regardless of how unusual the forum, under the dual mandate of the first amendment and the equal protection clause neither the government nor any private censor may pick and choose between those views which may or may not be expressed. See, e. g., Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); National Socialist White People’s Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973) (en bane); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir.1972); People Acting Through Community Effort v. Doorley, 468 F.2d 1143 (1st Cir. 1972); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972).

Under these circumstances and particularly in light of the fact that defendants refused to represent either in the trial court or in oral argument on appeal that no further notices of this type would be distributed, we remand with directions that the defendants, their agents, servants, or employees be enjoined from causing or directing administrators or teachers employed in the Boston Public Schools from distributing, in classrooms or on school premises during the hours of required school attendance, to pupils enrolled in said schools, notices calling the attention of their parents or others to or inviting them to attend particular rallies, meetings, or other activities designed to support a particular viewpoint on so-called racial imbalance legislation now pending in the General Court, or soliciting them to engage in letter-writing or activity in support of a particular viewpoint on such legislation, unless fair and reasonable timely opportunity is afforded to others having differing views to use the same channels to invite attendance at or call attention to rallies and activity in furtherance of such differing views.

Remanded for proceedings consistent with this opinion.

      . According to plaintiffs’ counsel’s affidavit, the system’s “fan-out” distribution procedure operates in the following manner. A message which is ready for distribution is first transmitted by telephone from the Deputy Superintendent to six area Assistant Superintendents and then by them to the individual schools in their charge. At the schools the message is typed, reproduced, and distributed to teachers who then deliver it to each individual student.

      . We are further buttressed in our conclusion that defendants have made available the school distribution system as a forum for the discussion of the possible repeal of the “Racial Imbalance Act” and the forced bussing of school children by the indication in the record that on April 30, 1973, defendants apparently authorized the distribution of a second set of notices, publicizing an anti-bussing rally scheduled to be held on May 2. While the record has not been fully developed with regard to this incident, we note that defendants state that these notices were not prepared by them but rather by the Home and School Association which they describe as “a private group.” If these representations are found to be true, a clearer example of an impermissible selective opening of a forum to a group whose views are favored is difficult to imagine.


author: PELL, Circuit Judge.

text:
    ESTATE of Robert R. WARE, Deceased, et al., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 71-1881.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 15, 1973.
    Decided June 13, 1973.

      Calvin Sawyier, Crane C. Hauser, Chicago, Ill., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Richard Halberstein, Atty., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee.
    Before KILEY, CUMMINGS and PELL, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal by Robert R. Ware, Jr., executor of the estate of his father, Robert R. Ware, deceased, from a decision of the Tax Court to the effect that the value of the corpus of each of five family trusts created by the decedent in 1936 was includable in the father’s gross estate for federal estate tax purposes. The tax deficiency involved was approximately $290,000.

The factual background of the controversy is set forth in depth in the Tax Court’s opinion, 55 T.C. 69 (1970), and need not be repeated in similar detail here although we note certain salient facts. The trust instruments, while differing in regard to the identity of the beneficiaries, all family members, contain, insofar as the present appeal is concerned, language of similar import. The decedent “shall be and continue the sole Trustee hereunder as long as he shall live and remain competent to act as such Trustee.” Decedent’s two named brothers were to be successor trustees only if the decedent ceased to be sole trustee. There was no express provision for the decedent’s resignation as sole trustee nor for the renouncing or releasing of his trustee’s rights or duties.

The crucial provision of the trust instruments in relation to this litigation was that income “shall, in the sole discretion of the Trustee herein, be distributed from time to time to the beneficiaries herein or accumulated for their respective benefits.” The discretionary determination to accumulate or not to accumulate was vested in the successor trustees only “in the event said Trustee becomes incompetent” and then only during the period of such incompetency. In notarized documents executed on April 12, 1940, May 1, 1940, and May 14, 1943, the decedent obviously attempted to divorce himself, both individually and as trustee, from any connection whatsoever with the trusts. It does not seem to be contended otherwise, the controversy stemming from whether on an extremely technical basis he did not succeed in ridding himself of the discretionary power to accumulate income. The final attempt at repudiation of any connection with the trusts is exemplified by the following:

“I, Robert Rea Ware, * * *, did execute and deliver two instruments, dated April 12, 1940 and May 1, 1940 respectively, by which I intended to and did irrevocably and forever renounce, resign, and relinquish any and all rights, privileges, titles, interests, duties, and claims of any and every nature and description whatsoever vested in me, as Trustee or as an individual, in said Robert Rea Ware Trust ., and in confirmation of said instruments dated April 12, 1940 and May 1, 1940 and by these presents, I, individually and as Trustee, hereby irrevocably and forever renounce, resign, assign, and relinquish to the beneficiaries thereunder, in accordance with their respective rights thereunder, any and all past, present, and future rights, privileges, titles, interests, duties, and claims of any and every nature and description whatsoever heretofore or now vested in, belonging, or reserved to me or hereafter vesting in, belonging, or accruing to me, as Trustee or as an individual, in and by the terms and provisions of said Robert Rea Ware Trust . . .

The record indicates that the decedent thereafter did not purport to have any connection with the trusts. He died a resident of Illinois, the law of which state is applicable, on July 25, 1964. In the interim, the brothers had resigned as successor trustees, and eventually each primary beneficiary was appointed pursuant to trust provisions as successor trustee of his or her own trust. There was never any accumulation of income.

In 1943, effective May 25 of that year, Illinois passed a Termination of Powers Act, Ill.Rev.Stats. ch. 30, §§ 177-182. Specifically, under § 180 a release of a power executed prior to the effective date is to have the same effect as if the Act had been in effect at the time the release was executed and delivered.

The types of “powers” covered by the Act are defined in broad and sweeping terms. While powers of appointment were included it seems clear that the scope of the Act was not limited to powers of this type only.

The principal thrust of the Tax Court decision was that under Illinois law the decedent could not resign as trustee without court approval and, not having it, he went to his grave undivested of the legal accouterments of the fiduciary status, specifically, with the power to control the manner of the disposition of income. The Tax Court therefore held that the deficiency was properly assessed under 26 U.S.C. § 2036(a)(2) (right to designate the persons who shall enjoy the income) and 26 U.S.C. § 2038 (reserved power to alter).

In reaching this result, the Tax Court dealt extensively with the Illinois Termination of Powers Act and determined that the Act did not accomplish what the decedent and his legal advisors obviously thought it did. In the family trust situation here involved it would have been a simple matter indeed for court approval of a resignation to have been secured, and, as the Tax Court observed, “[i]f he had done so, and had his application been accepted, his resignation would have been complete.” As indicated, we entertain no doubt that the acceptance would have been almost automatic. He did not do so apparently because of the general belief among Illinois practitioners that a private inter vivos trust, as opposed to a testamentary trust, did not require court supervision in matters of this sort. This, of course, does not mean that a trustee in the case of the inter vivos trust can exceed the scope of the instrument-provided authority in administering the trust nor that he would not remain answerable in court to an injured cestui que trust if he purported to do so.

In any event, court approval was not secured and, while we question the correctness of the Tax Court’s determination that court approval was here a sine qua non for legally effective resignation, we do not deem it necessary to reach that question, for we find that the action taken was effective under the Illinois Act to divest the decedent of his power to control the distribution of income during the pendency of the trusts.

Turning to the Illinois statute, supra, we find the following portions thereof significantly dispositive:

“177. (a) ‘Power’ includes . . . any power to invade property, any power ... to terminate any right or interest [under any instrument by which a trust is created], and any power remaining where one or more partial releases have heretofore or hereafter been made with respect to a power, whether heretofore or hereafter created or reserved, whether vested, contingent or conditional, and whether classified in law or known as a power in gross, a power appendant, a power appurtenant, a collateral power, a general, special or limited power, an exclusive or nonexclusive power, or otherwise, and irrespective of when, in what manner, or in whose favor it may be exercised.
(b) ‘Donee’ means any person whether resident or non-resident of this State who, either alone or with another has a power.
* * * * * *
(d) ‘Property’ when used in connection with a power means any and all income from property, which is subject to the power, and includes . . . any part of the income from property.
(e) ‘Release’ means renunciation, relinquishment, surrender, refusal to accept, extinguishment, and any other form or release.
“178 . . . The donee of a power may:
(a) At any time completely release his power.
(b) At any time or times release his powers;
(1) As to any property which is subject thereto;
(2) As to any one or more of the objects thereof; . . . .”

The terms of the trusts provided that the trustee could direct at his discretion that income be accumulated rather than distributed. By exercising this power the trustee would have been merely exercising the reserved power to terminate the revocable right of a beneficiary to receive property (income). This is a “power” included within the Act.

Under the provisions of the Illinois Act we have quoted above, it seems clear that the decedent released by his 1943 relinquishment, if he had not done so before, any vestige of his power to control the manner of distribution (or non-distribution) of income. We so hold.

We note two contentions of the Commissioner: First, even if one assumes that the decedent’s right to accumulate or distribute income was a power apparently within the definitions in the Act, it nevertheless was not one he could relinquish inasmuch as it was a power in trust; and, second, the emergency clause of the Act shows clearly it related only to changes in federal legislation broadening the scope of the taxability of powers of appointment. We find neither contention persuasive, because in our opinion, both are answered by the obvious purpose of the Act, namely, to permit the relinquishment of taxable powers. The taxability flowing from such powers should not be dependent upon whether they were held by a trustee or an individual. The fact that the passage of the Illinois legislation may have been prompted by an extension of federal taxability as to certain powers is insufficient reason to limit the plain, and broadly sweeping, wording and purpose of the Illinois statute. Further, recognizing as the Tax Court did that the law of Illinois is determinative of the rights and interests which the decedent had at his death, whatever the decisional law of the state pertaining to distinctions between powers and trusts may have been prior to 1943, we conceive that the state’s legislature could ignore those distinctions in remedial legislation.

The Tax Court also in part relied upon the fact that the decedent never specifically attempted to release the power pertaining to accumulation. In this respect the Tax Court refers only to the documents of April 12, 1940. For some reason no reference was made in the decision to the crucially significant instruments of May 14, 1943. The language of these relinquishments was so sweeping in breadth that to have inserted a reference to a specific power might well have arguably produced a limitation on, rather than an extension of, the intended scope of the renunciation.

The appellant executor also relies in this appeal on a contention that because of the long lapse of time and the carrying out of the trust administration by others, the decedent’s power to direct accumulation of net income did not effectively exist at the time of his death because the power had been extinguished by reason of abandonment, laches, and estoppel. While we do not conceive it beyond possibility that the Illinois courts might recognize such a “mantle of repose,” see Becker v. Billings, 304 Ill. 190, 199, 136 N.E. 581, 585 (1922), we do not deem it necessary to reach this point.

The contention, however, does cause us to observe that while taxing authorities should not do less in collecting taxes than that required by the legislation involved, even though that may involve technical applications in what is admittedly a technical area of our jurisprudence, we nevertheless do not conceive upon all of the facts of this case that the expressed intent of Congress to impose taxability where control of disposition remains until the grave is in any way served.

Accordingly, the decision of the Tax Court is reversed and the cause is remanded for the entry of a judgment in favor of the petitioner.

Reversed.

      . On the other hand, there was no express prohibition of voluntary resignation. Because our decision does not rest upon this issue, we express no opinion on the necessity of the inclusion of an express power in this respect. We do note two recent Supreme Court cases which, although arising in an entirely different factual and legal context, placed emphasis on the fact that there was no express prohibition of members’ resignation from a union. Booster Lodge No. 405 v. National Labor Relations Board, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764 (1973) ; National Labor Relations Board v. Granite State Board, 409 U.S. 213, 217, 93 S.Ct. 385, 34 L. Ed.2d 422 (1972).

      . No Illinois case lias been brought to our attention turning on the precise point involved in the ease of an inter vivos trust in which the instrument of creation does not provide explicit authority for resignation but does provide for fiduciary sueeessorship, as to whether the trustee can legally resign without a court order. Cf. Aldridge v. Breisch, 144 Miss. 281, 109 So. 718, 714-715 (1926). The fact that the point has apparently never reached the decisional level in a state wherein we may safely assume lifetime trusts are not uncommon might be taken as some indication that in practice, at least, court approval is not deemed necessary. Also, appellant submitted to the Tax Court in support of his motion for reconsideration a letter from acknowledged authorities on trust law supporting the position that no court consent was required in the present factual situation.

      . Section 179 of the Act is concerned with the mechanics of effecting release. No contention is advanced that there was not compliance with the Act in this respect if it otherwise was applicable.

      . While “invasion” would probably be confined to its technical meaning in this area of the law, it seems relatively certain that a beneficiary who failed to receive the income which was being accumulated might regard the matter as being an invasion of a property right.


author: LAY, Circuit Judge.

text:
    TRANSPORT MANUFACTURING & EQUIPMENT COMPANY (a Delaware Corporation) Transferee, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 72-1508.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 9, 1973.
    Decided June 15, 1973.
    Rehearing Denied Aug. 10, 1973.

      Guy A. Magruder, Jr., Kansas City, Mo., for appellant.
    Donald H. Olson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.

      Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

This appeal relating to a 1960 jeopardy assessment filed against the Transport Manufacturing & Equipment Company of Delaware (TM&E) reaches our court for the third time. Originally the taxpayer sought relief to compel the Commissioner to abate the jeopardy assessment upon tender of the balance due under the deficiency assessment. The tender did not include any post-assessment interest, and the Commissioner refused to withdraw the assessment. The district court dismissed this action, and we affirmed for lack of jurisdiction under Section 7421 of the 1954 Code. Transport Manufacturing & Equipment Co. of Del. v. Trainor, 382 F.2d 793 (8 Cir. 1967). Thereafter, the Tax Court in a Rule 50 computation determined, inter alia, that TM&E was liable for post-assessment interest from September 30, 1960, on the unabated portion of the jeopardy assessment. 27 TCM 919 (1968). On appeal we reversed that decision and remanded the case for recomputation of deficiencies excluding any consideration of post-assessment interest; we held that the Tax Court lacked jurisdiction to determine any liabilities subsequent to the date of the jeopardy assessment. Transport Manufacturing & Equipment Co. v. C. I.R., 434 F.2d 373 (8 Cir. 1970). On remand the Tax Court, the Honorable Bruce M. Forrester presiding, filed a supplemental opinion and decision. 31 TCM 262 (1972). This appeal is now brought questioning the overall determination of the taxpayer’s transferee liability.

On appeal TM&E challenges: (1) the Tax Court’s failure to determine that certain payments which the government credited to post-assessment interest are overpayments; (2) its transferee liability for post-assessment interest; (3) the validity of the September 14, 1960 jeopardy assessment of transferee liability; and (4) the findings of the Tax Court that TM&E is liable for jeopardy interest assessed against it on September 14, 1960. We affirm.

The unfortunate history of this litigation reaches backward almost a quarter of a century in time. Deficiencies and penalties totaling $2,364,493.95 were first determined by the Commissioner on April 17, 1958, due and owing from Transport Manufacturing & Equipment Company of Illinois for the years 1949-1953. On February 8, 1957, TM&E of Delaware had succeeded to the assets, subject to the liabilities, of TM&E-Illinois. On July 11, 1958, TM&E (Del.) filed its petition with the Tax Court for redetermination of its transferee liability. Subsequently, the Commissioner issued a jeopardy assessment on September 14, 1960, against the taxpayer. On October 2, 1961, prior to the trial on the tax deficiencies, the parties entered into a stipulation which read in part as follows:

“(16). T.M.&E. of Delaware, petitioner in Docket No. 74952, is liable as transferee of the assets of T.M.&E. of Illinois for any deficiencies in income taxes and additions to the tax, plus interest thereon as provided by law, which may be found by this Court to be due and owing from the said T.M.&E. of Illinois, petitioner in Docket No. 74953, for the taxable years 1949 to 1953, inclusive.”

The Tax Court rendered its opinion on July 14, 1964. 23 TCM 1113. A Rule 50 computation was not completed, due to objections being filed, until December 5, 1968. 27 TCM 919 (opinion of August 29, 1968, supporting computation). By this time TM&E had made payments on its transferee liability approximating $1,655,000. On appeal to this court, as indicated, we remanded the case back to the Tax Court for recomputation excluding post-assessment interest. On remand the liability of the transferor for tax deficiencies, penalties and assessed interest was determined to be $890,-927.64. 31 TCM 262 (1972).

CREDIT FOR OVERPAYMENT

It is undisputed that TM&E has paid $1,655,836.45 since the statutory notice of April 17,o 1958, to be applied against its transferee liability. 31 TCM at 265. The Tax Court, however, reflected payment of only $1,289,217.25 in its Rule 50 computation. The issue raised here relates only to $220,426.09 out of the original accounting differential of $366,-619.20. The parties agree that the $220,426.09 was not determined to be an overpayment by the Tax Court since the Commissioner had previously credited that amount to post-assessment interest, and the Tax Court decided that it therefore had no jurisdiction over the matter.

According to the procedures set up by the Commissioner, when a taxpayer makes advance payments, credits are applied to the asserted deficiency and to interest thereon as designated by the taxpayer. Rev.Proc. 64-13, 1964-1 Cum. Bull. (Part I) 674 (Sec. 3.01). As the Commissioner urges, when no designation has been made by the taxpayer such payments are applied to taxes, penalties and interest, in that order, beginning with outstanding liabilities for the earliest year and then each subsequent year. Rev.Proc. 58-239, 1958-1 Cum.Bull. 94. The parties did stipulate that at least part of the amount in question was actually credited to post-assessment interest. The government contends that since the Tax Court did not have jurisdiction to determine matters relating to post-assessment interest, it, therefore, could not consider payments credited by the Commissioner to such accrued interest. Although TM&E may not have .acquiesced in such a division of payments, it made no effort to designate its preferred allocation.

As taxpayer recognizes, the post-assessment interest issue relates solely to the Commissioner’s accounting procedure. Even if we agreed that the Tax Court exceeded its statutory authority by not computing all of TM&E’s payments as overpayments, upon final decision the Commissioner could 'still credit the overpayments to the claimed post-assessment interest, effecting the same result. 26 U.S.C. § 6402. The law needs to be precise, but it should not travel in circles. It is mutually accepted by the parties that neither the Tax Court nor this court has the power to order any refund. United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 542, 57 S.Ct. 855, 81 L.Ed. 1272 (1937); Empire Ordinance Corporation v. Harrington, 102 U.S.App.D.C. 14, 249 F.2d 680, 682 (1957); see also 26 U.S.C. § 6512. No substantive prejudice to taxpayer can arise from the Tax Court’s determination. Under the circumstances we decline to disturb the Tax Court’s holding.

POST-ASSESSMENT INTEREST

On this appeal we are asked to pass upon the validity of taxpayer’s claim that no post-assessment interest is due since the jeopardy assessment was made under the 1954 Code which now prohibits post-assessment interest. 26 U.S. C. § 6601(f)(2). TM&E also urges that the September 14, 1960, jeopardy assessment filed against it is invalid because it did not receive proper notice of transferee liability at the time of the assessment. This issue was never raised in the Tax Court until the remand of our prior opinion. The Tax Court passed on the question over the Commissioner’s objection. 31 TCM at 264. We further note that taxpayer has paid its transferee liability in full. The only possible consequence of this belated contention is to attack again the taxpayer’s liability relating to post-assessment interest.

These issues are not before us, since, as we have previously held, the Tax Court lacked jurisdiction to pass on post-assessment interest. Our jurisdiction is limited on appeal only to those questions properly before the Tax Court. Cf. Lessmann v. C.I.R., 327 F.2d 990, 996 (8 Cir. 1964); National Contracting Co. v. Commissioner, 105 F.2d 488, 494 (8 Cir. 1939); 9 Mertens, Law of Federal Income Taxation § 51.26.

TRANSFEREE LIABILITY FOR INTEREST

In the Tax Court TM&E claimed that the stipulation relating to transferee liability, as earlier set forth, precluded any liability for post-assessment interest. Since this issue is now removed from the case, taxpayer now argues that the stipulation also bars the Commissioner’s claim for jeopardy assessed interest.

Taxpayer also contends that the Commissioner failed to prove any factual basis supporting his claim for jeopardy assessed interest and that liability for interest on the transferor’s deficiencies should have been determined by state law. We reject each of these claims.

The Tax Court originally found that the stipulation contains no words of limitation and does not bar liability for jeopardy assessed interest. 27 TCM at 921. As the Tax Court discovered, no words of limitation are evident within the stipulation, and the legitimate and prevailing purpose of the stipulation was to relieve the Commissioner of his burden of tracing assets from transferor to transferee; moreover, this stipulation was entered into in another related proceeding a full year after the jeopardy assessment.

TM&E cites Morse Boulger Destructor Co. v. Camden Fibre Mills, 239 F.2d 382 (3 Cir. 1956), for the proposition that when the parties have stipulated the amount of total liability, it is error to add interest. It also refers to Ursich v. da Rosa, 328 F.2d 794 (9 Cir. 1964), cert. denied, 379 U.S. 920, 85 S.Ct. 273, 13 L.Ed.2d 334, and United States v. Certain Land in City of St. Louis, 58 F. Supp. 305 (E.D.Mo.1944), where interest was denied even though it would have been awarded in absence of the stipulation. However, all of these cases involve stipulations that were intended to compromise one party’s underlying liability. Here the stipulation was not a compromise of liability. Furthermore, the cases of Morse Boulger Destructor Co. v. Camden Fibre Mills and United States v. Certain Land in City of St. Louis contained, stipulations where the exact amount of liability was expressed in the stipulation. In Ursich v. da Rosa interest was considered after the parties had agreed to a stipulation which did not mention it, the defendant then refused its late inclusion, and the plaintiff did not seek to reopen the stipulation. Thus these cases are clearly distinguishable.

We agree' with the Tax Court’s reasoning and hold its finding not to be clearly erroneous.

VALIDITY OF THE ASSESSMENT

TM&E also attacks the government’s failure to prove that the 1960 jeopardy assessed liability was valid or to prove the extent thereof. This assessment was made on September 14, 1960; it was not until 1971 that taxpayer sought in the Rule 50 proceeding to dispute the assessment. We think this is a frivolous claim. We find, as did the Tax Court, the stipulation effectively precludes taxpayer’s argument.

STATE LAW

We turn to taxpayer’s final argument that state law governs the determination of liability for the assessed interest. This argument on appeal has also been extended beyond its original boundaries. Initially the only attack .made in the Tax Court related to the validity of the assessment as it related to post-assessment interest; nevertheless, we find the reasoning of the Tax Court in 1968 dispositive as to the issue of jeopardy assessed interest as well. Judge Forrester wrote:

“In the instant case section 297 specifically provides that the individual who is jeopardy assessed and fails to pay the assessment within ten days is to pay interest at the rate of 6 percent on the unpaid balance from the date of notice. There is no gap in the federal law as to liability for interest for one validly assessed. As pointed out in Patterson v. Sims, 281 F.2d 577, 580 (C.A. 5, 1960) (involving a similar provision under section 294 of the 1939 Code), where the federal statute has spoken, there is no need to look to state law.
* -X- -X- * -X- -X-
“Of course the maximum amount to which the interest applies is that amount which under state statutes subjects transferee petitioner to transferee liability. But in the instant case, the parties have stipulated that transferee petitioner’s liability is at least equal to the amount which was jeopardy assessed by respondent.
“ . . . It is extraneous to this determination to discuss the issue of the exact value of the transferee assets and we refrain from doing so. For similar reason we do not interpret the laws of Illinois and Missouri regarding interest.” 27 TCM at 922.

See also Estate of Samuel Stein v. C.I.R., 37 T.C. 945, 961 (1962); Lowy v. C.I.R., 35 T.C. 393 (1960); 9 Mertens, Law of Federal Income Taxation § 53.38; cf. Bos Lines, Inc. v. C.I.R., 354 F.2d 830, 840 (8 Cir. 1965).

Judgment of the Tax Court is affirmed.

      . The amount of the jeopardy assessment was $3,301,998.11. The amount tendered was $1,986,163.82.

      . Although the transferor’s tax liability was determined under the 1939 Code, taxpayer asserts that the jeopardy assessment against taxpayer as a transferee was under the 1954 Code which no longer assesses compound interest. 26 U.S.C. § 6601(f)(2).

      . Counsel for the Commissioner explains this when at the Tax Court hearing he observed:
      “MR. BOYER: These are payments that the respondent has applied to post assessment interest.
      “Since petitioner has not directed to the respondent, at the time these payments were made, that they be applied in any particular manner, we believe that the respondent has properly applied payments by first applying them towards petitioner’s liability as transferee for deficiencies and assessed interest and then, secondly, applying the additional payments to his liability for post assessment interest.
      “Secondly, we believe that the Eighth Circuit Opinion has removed from the jurisdiction of this Court the right to determine what should be done with these payments that have been applied to post assessment interest. Under the law of this case, this Court does not have any jurisdiction to make any determination with respect to the petitioner’s liability for or overpayment of, post assessment interest.”

      . Furthermore, in oral argument counsel TM&E admitted that it received adequate notice of transferee liability.

      . Taxpayer is well aware that Rule 50(e) precludes consideration of new substantive issues. Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 312-313, 53 S.Ct. 150, 77 L.Ed. 325 (1932) ; Vogel’s Estate v. G.I.R., 278 F.2d 548, 550 (9 Cir. 1960) ; Commissioner v. Sussman, 102 F.2d 919, 922 (2 Cir. 1939) ; cf. Estate of Samuel Stein v. C.I.R., 40 T.C. 275 (1963).
      TM&E attempts to rely on this rule to prevent the Tax Court’s consideration of assessed interest. It urges that its belated argument is made because it did not know that the Tax Court was going to assess interest until it received the original Rule 50 decision computing the taxpayer’s liability. However, TM&E was well aware that both § 6861(c) of the 1954 Code and § 273(c) of the 1939 Code gave the Tax Court jurisdiction to determine “all amounts assessed.” See 27 TCM at 920. And as has been stated, taxpayer has known of the assessment of interest since 1960.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    VAN IDERSTINE COMPANY, a division of Darling Delaware Co., Inc., Plaintiff-Appellant, v. RGJ CONTRACTING CO., INC., and Michael Petrow, Defendants-Appellees.
    No. 548, Docket 72-2225.
    United States Court of Appeals, Second Circuit.
    Argued May 22, 1973.
    Decided June 12, 1973.
    Benjamin H. Siff, Thomas R. Newman, New York City (Greenhill & Speyer, New York City, on the brief), for appellant.
    Morris Zweibel, Brooklyn, N. Y. (Grant & Helfenstein, Brooklyn, N. Y., on the brief), for appellee RGJ Contracting Co., Inc.
    Arthur N. Seiff, New York City (Katz & Gantman, New York City, on the brief), for appellee Michael Petrow.
    Before KAUFMAN, Chief Judge, and KILKENNY and OAKES, Circuit Judges.

       United States Court of Appeals, Ninth Circuit, sitting by designation.

   IRVING R. KAUFMAN, Chief Judge:

On December 29, 1964, a fire gutted a five-story building owned by appellant, Van Iderstine Company, in Long Island City, New York. The structure was part of a complex of twenty-eight buildings used in Van Iderstine’s business of rendering butchers’ offal and manufacturing bone meal, poultry feed and bone glue. Van Iderstine subsequently brought this action against R. G. J. Contracting Company, a contractor hired by Van Iderstine to demolish the building in question in preparation for new construction, and Michael Petrow, a subcontractor engaged by R. G. J. to perform the job, to recover $980,000 in property damage allegedly caused by the defendants’ negligence in setting the fire. A jury, after trial before the Hon. Orrin Judd in the Eastern District of New York, returned a verdict for the defendants. Thereafter, Judge Judd denied Van Iderstine’s post-trial motion to set aside the verdict and for a new trial, and Van Iderstine appealed.

Appellant urges us to reverse the judgment below because, in his view, the verdict was contrary to the evidence, the trial judge erred in his charge to the jury in certain respects and the trial conduct of the attorney for defendant R. G. J. Contracting Company was so prejudicial to Van Iderstine as to require a new trial. We have carefully considered the briefs and the record of the trial and find no basis for disturbing the jury’s verdict. Accordingly, we affirm.

We doubt whether we would have memorialized this case in a written opinion of the court were there not present in the record evidence of conduct by counsel so disturbing as to require some further discussion. During our customary reading of the briefs and examination of the record in preparation for the argument of the appeal we discovered a pattern of behavior by several lawyers who participated at trial that was shocking, unbecoming officers of the court and lacking in concern for professional integrity and responsibility. Since the courts must never provide a sanctuary for such gross misconduct as was demonstrated in this case we shall have something to say about the events at the trial.

We note initially that had more than an insubstantial portion of counsels’ intemperate behavior been brought to the attention of the jury, we would have had no restraint in ordering a new trial. The attentiveness of the district judge, however, spared the jury from conduct that we believe would have fatally infected the trial. Although it is our judgment that the verdict was untainted by the acrimony that occurred outside the jury’s presence, that alone cannot excuse the untoward behavior of counsel.

Canon 7 of the Code of Professional Responsibility sets forth the elementary maxim that “A lawyer should represent a client zealously within the bounds of the law.” Disciplinary Rule 7-106 (Trial Conduct) of the Canons, however, provides that

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

Moreover, Ethical Consideration 7-37 provides:

In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude or demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.

With this backdrop, we turn to a discussion of several examples of the conduct we have found particularly offensive.

During the direct testimony of Daniel Roff, vice-president of R.G.J., Mr. Mangiatordi, counsel for defendant R.G.J., questioned the witness on the relationship between R.G.J. and defendant Petrow. The following colloquy took place:

Q. When Petrow was contacted— in your contacting Petrow, how did this come about as far as Van Iderstine was concerned?
Did you go into the full set of negotiations with respect to the operation of the demolition, et cetera?
A. I brought Mike Petrow in to do the demolition. From there on, Mr. Goonan [Van Iderstine’s plant manager] knew just what he was going to do with his equipment and I had no further —
Mr. Greenspan [counsel for Van Iderstine]: I object to that. The contract speaks for itself.
Mr. Mangiatordi: It’s not a contract.
The Court: What Goonan knew, the witness can say.
Mr. Mangiatordi: I object to the comment by counsel.
The Court: He was making an objection. I think his comment was in addition to his objection.
Mr. Mangiatordi: I believe he referred to something as a legal term that your Honor denied me to make a statement with respect to it.
The Court: Ask your next question. Mr. Mangiatordi: He ought to refer to it as a Plaintiff’s Exhibit.
May I approach the Bench for a minute, please?
The Court: All right.
(The following occurred at sidebar). Mr. Mangiatordi: Mr. Greenhill [co-counsel for Van Iderstine] insists on making faces and showing exasperation from my questioning. I am going to ask that he discontinue or he be excluded from the courtroom.
Mr. Greenspan: Mr. Greenhill has been looking at some notes—
Mr. Mangiatordi: That’s not true. Mr. Greenspan: How can you say it’s untrue. You have some nerve. You don’t know what you are talking about.
Mr. Mangiatordi: Judge, if this continues —
The Court: The witness cannot tell what Mr. Goonan was trying to do. Let’s continue.

The able trial judge unfortunately permitted himself to be drawn into the dispute between the attorneys. He was often interrupted discourteously and abused without reason by Mr. Mangiatordi, as the following testimony during plaintiff’s cross-examination of Roff illustrates :

Q. [Mr. Greenspan] Isn’t it true when you do demolition work and there is steel in the building—
Mr. Mangiatordi: I object to the question.
The Court: Overruled.

Q. Isn’t it true when you do demolition work and you have steel in the building that you have to use a torch to cut it? .

Mr. Mangiatordi: I object to the question. I don’t know what he’s referring to when he uses the words “when you do demolition work.” I object to the form of the question.
The Court: Overruled.
Mr. Mangiatordi: Is the word meant generally, Judge, did you, any person?
The Court: I think this is dealing with his experience as to demolition work generally.
The Witness: I don’t have experience with demolition work. I couldn’t answer that.
Q. You were a former fireman, were you not?
A. Yes, sir.
Q. In doing demolition work is it necessary to use a torch to cut steel? Mr. Mangiatordi: I object to that. The Court: He can answer that if he knows.
Mr. Mangiatordi: I can answer that question.
A. If you have steel and the steel is put together with bolts, you don’t need a torch.
Mr. Greenspan: I move the answer be stricken.
The Court: No. I will let it stand.
Q. If you say it was put together with bolts, do you mean that you have to use a torch to cut them or do you mean that you—
A. No. You can use wrenches to take out bolts.
Q. Supposing the size of the metal is so large and they are not put together with bolts and you have to cut it, you have to split it, how would you cut it?
A. You would cut it with a torch. Mr. Mangiatordi: I object to that. He’s trying to make him an expert on that.
The Court: I let you make him an expert on fire. I will have an expert on demolition.
Mr. Mangiatordi: He was a fire marshal. He was an expert. He is not an expert on demolition and on cutting metals.
The Court: We had a statement — • Mr. Mangiatordi: Judge, I would like to go to the side bar again, if your Honor pleases.
The Court: We will take a short recess now. The jury go back to the jury room and don’t discuss the case.
(Jury excused.)
Mr. Mangiatordi: Again at this time I have to sincerely ask for a mistrial, Judge.
The evident bias in this case that your Honor is projecting to this jury as against the defendants in this ease, it’s shocking. You are suggesting to these plaintiff’s attorneys how to try their cases in the first instance. You are telling them what testimony to put in, what testimony to exclude. You are making suggestions to them as to whether or not the word “sub-contractor” should go into evidence as opposed to their intention to prove that there was a joint venture, and now you are trying to show — because this man was projected as being an expert in fire — that that automatically makes him an expert in weld-ing and cutting and demolition and I take exception to that.
The Court: No. Because Mr. Greenspan had just put in a couple of statements about his having worked on demolition jobs before. You have a right to file a Certificate of Bias. Do it any time.
Mr. Mangiatordi: Judge, I am in the middle of trial and I don’t get out of here until 6, 7 o’clock at night.
The Court: I don’t keep you that long.
Mr. Mangiatordi: I am here at night. You may not know it, but I am here until 7 o’clock at night.
It’s evident that what you are doing is really projecting to the jury and I ask you, please, in the interests of justice to give us an opportunity to present the case in a fair light and not project yourself into the case. I mean it sincerely.
The Court: You just get yourself too excited. That’s why we have all these personalities that are resulting in your accusing the other counsel of misconduct, too.
Mr. Mangiatordi: You are prejudicing the defendants here and I ask you, please, if there is a question pertaining to evidence, not to project yourself to show that what we are doing is erroneous or wrong or we are trying to hoodwink this jury. I think it’s highly prejudicial.
(A recess was taken.)

The ultimate disservice to the advocate’s role was exhibited during the direct examination of defendant Michael Petrow. The witness testified that he had seen lawyers for Van Iderstine at the fire site and they had identified themselves as fire marshals and inspectors. The record needs no embellishing:

Q. [Mr. Mangiatordi] Who did you see there at the premises?

A. [Mr. Petrow] The two fire marshals, the two fire inspectors.

Q. The gentleman sitting on the end and the gentleman with the eyeglasses in his mouth, they said they were fire marshals and inspectors?

A. And adjusters.
Mr. Cohen: Designate their name for the record, please.
Mr. Greenspan: Mr. Kreisberg [co-counsel for Van Iderstine] you saw there?
The Court: Did you see Mr. Kreisberg?
The Witness: Yes, sir.
Mr. Greenspan: When was this?
The Court: Mr. Mangiatordi is questioning.

Q. What did they represent themselves as being at the time you saw them there ?

A. Fire inspectors, fire adjusters, or something of that nature.

Q. Did you see them there throughout the job after the fire had occurred?

A. Once, twice, sometimes three times a day; poking around here, poking around there. I’d run into them at the oddest places.

Q. Did you ever catch them in conversation with your men ?
Mr. Greenspan: I object to that statement.
The Court: Sustained.
Q. Were your men on the job after the fire?
A. Yes, sir.
Q. Did you notice whether there was any conversation going on with your men and with these men?
A. Yes, sir.
Q. Did you have a conversation with them with respect to these conversations they were having with your men?
A. Yes, sir.
Q. And what did—
Mr. Mangiatordi: If you want to stare at me I’ll put you on the stand next.
The Court: We’ll take a recess.
The jury will go back to the jury room because we want to talk about the case.
(The jury left the courtroom.)
The Court: Mr. Mangiatordi, is there any other counsel available to try this case if I declare a mistrial?
Mr. Mangiatordi: No, sir. This case took a lot of preparation.
The Court: Don’t spoil it by dealing in — •
Mr. Greenhill: I think we have reached a point where a mistrial is necessary.
The Court: We will recess.
Mr. Greenhill: We have wasted your time and we wasted our time.
Mr. Mangiatordi: I except.
The Court: Do you think—
Mr. Greenhill: This man should be reported to the Federal Bar Association.
Mr. Mangiatordi: This man has been glaring at me all through the trial.
Mr. Greenhill: And I say there is perjury committed. This record should go to the District Attorney.
Mr. Kreisberg: And I want—
Mr. Greenhill: This should be referred to the District Attorney.
Mr. Kreisberg: I want to call this man an unmitigated liar and put my testimony on the record.
Mr. Greenhill: I want this testimony to go to the District Attorney.
This is a disgrace.
Mr. Petrow: Two men of mine almost died.
Mr. Greenhill: You are a liar.
I’ll say another thing. I want to say one more thing because it affects me.
Mr. Roth said on this stand he believes he saw me there the day of the fire. I was outside in the hall with his personal attorney and I said, “Mr. Roth, is that true?”
He said, “No. Don’t you remember when I was there ?”
He said, “Yes. When were you there Mr. Greenhill? I was there on December 31st.”
That was the first time I saw him.
Mr. Cohen: Two days after the fire.
Mr. Kreisberg: But not the day of the fire as this man says. And I was sick in bed.
Mr. Petrow: I didn’t say that you were there the day of the fire. I said the day after.
Mr. Greenhill: This record should go to the District Attorney’s office.
Mr. Petrow: It should go because two men almost lost their lives. These men were with me twenty years, you know. Even though they work for me they are still my friends. There was arson involved here.
Mr. Greenhill: Listening for two weeks to wisecracks. Listening to the comic lawyer, listening to these — this man can’t even try cases.
The Court: We are going to take a twenty-minute recess. Counsel can go to the court library on the fourth floor to see if I have the power to grant a mistrial.
Mr. Mangiatordi: This ease has been adjourned — if Mr. Greenhill doubts my competency, he is the person who was supposed to be trying this case, all of a sudden he asked for adjournments claiming that he was sick. Now, I asked your Honor in the course of this trial to ask this man to quit his tactics and doing this every time a question was asked and during all of my cross-examination, during my questioning, during this entire trial, and your Honor refused to admonish him.
The Court: I have only your word to believe it.
Mr. Mangiatordi: He’s not denying it, either.
Now, you are talking about tactics. He should conduct himself as a lawyer.
Mr. Greenhill: I could be your father.
Mr. Mangiatordi: You could never be my father under any circumstances.
The Court: We’ll take a short recess.
Mr. Mangiatordi: You couldn’t clean my father’s shoes.
The Court: We will take a twenty-minute recess.
Mr. Mangiatordi: You couldn’t shine my father’s shoes, you Goddamn bootblack.
Mr. Kreisberg: What did you say?
The Court: We will take a twenty-minute recess.

Ordinarily, when a lawyer’s misconduct is called to our attention, our reviewing task is made difficult because the cold trial transcript does not permit us easily to capture the mood of the trial. The pages of this record, however, virtually sizzle with misbehavior. We believe the depressing illustrations, just noted, of what passed for advocacy in this case sufficiently demonstrate the nature of the unruly proceedings below. Even Judge Judd’s patient and perhaps overly tolerant attitude towards the attorneys’ conduct ultimately had to give way. He was moved to observe finally that “In a bar as disciplined as the English bar, Mr. Mangiatordi would have been subject to public censure and perhaps suspension for the repeated and unfair criticisms of plaintiff’s counsel.’’ We do not believe any civilized legal system need tolerate behavior which makes a mockery of our adversary trial system. Civil litigation provides an opportunity for private parties to dispose of disputes in an orderly and disciplined fashion. But the open forum which our courts provide for conflict resolution is not, nor can it ever be, a license to slander and abuse one’s adversary. Such conduct diminishes the integrity of an institution whose usefulness depends upon the respect in which it is held by the public, and by the lawyers who practice in it. Advocacy is an art in which the unrelenting pursuit of truth and the most thorough self-control must be delicately balanced. Lawyers, as officers of the court, must always be alert to the rule that zealous advocacy in behalf of a client can never excuse contumacious or disrespectful conduct. Counsel who abuse the adversary system, and infect court proceedings with the tactics of street brawlers cast doubt upon their fitness as responsible advocates and betray a trust with which they are invested by the court and public.

The attorneys’ conduct which we have noted reveals a total lack of self-discipline. Moreover, we believe Mr. Mangiatordi’s behavior particularly merits censure. Since the district judge did not recommend initiation of disciplinary proceedings in this mattér, we forebear from doing so ourselves. Similar conduct, however, will not be tolerated in the future and this opinion should serve as notice to that effect.

      . Plaintiff Van Iderstine was represented at trial by Jerome Greenspan, Carl Krcisberg and Simon Greenhill, Esqs., of the firm of Greenhill & Speyer. Principal counsel for defendant R.G.J. Contracting Company was Prank Mangiatordi, Esq., of the firm of Grant & Helfenstein. We should note that Maley S. Cohen, Esq., of the firm of Katz & Gantman, who was the attorney for defendant Petrow, did not participate in the conduct we condemn.


author: MULLIGAN, Circuit Judge:

text:
    EXXON CORPORATION, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Appellees. GETTY OIL CO. (EASTERN OPERATIONS), INC., et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK et al., Defendants-Appellees.
    Nos. 916, 927, Dockets 73-1481, 73-1497.
    United States Court of Appeals, Second Circuit.
    Argued May 9, 1973.
    Decided May 17, 1973.
    Joseph T. McLaughlin, New'York City (Shearman & Sterling, New York City, Robert L. Clare, Jr., George J. Wade and Kent Sinclair, Jr., New York City, of counsel), for plaintiff-appellant, Exxon Corp.
    Miles F. McDonald, New York City (Shea Gould, Climenko & Kramer, Jesse Climenko and Robert Gold, New York City, of counsel), for plaintiffs-appellants, Getty Oil Co. (Eastern Operations), Inc., Gulf Oil Co. — U. S. Mobile Oil Corp., and Sun Oil Co. of Pa.
    Evan A. Davis, New York City (Norman Redlich, Corp. Counsel, Evelyn J. Junge and Alexander Gigante, Jr., New York City, of counsel), for defendantsappellees.
    David Schoenbrod, New York City for amici curiae, Natural Resources Defense Council, Inc., Citizens Committee to End Lead Poisoning, NYC Clean Air Campaign and Uniformed Bridge and Tunnel Officers, Local 1396, AGSCME.
    Before MULLIGAN and TIMBERS, Circuit Judges, and JAMESON, District Judge.

       United States District Judge, District of Montana, sitting by designation.

   MULLIGAN, Circuit Judge:

Plaintiff Exxon Corporation commenced an action on March 9, 1973 and plaintiffs Getty Oil Co., Gulf Oil Co., Mobil Oil Corporation and Sun Oil Company instituted another action on March 14, 1973, seeking declaratory and injunctive relief against the enforcement of Sections 1403.2-13.11 and 13.12 of the Administrative Code of the City of New York which prescribe the maximum lead content and volatility limits of regular and premium grade gasoline sold in the City of New York. The actions were consolidated on March 15, 1973 when all of the plaintiffs sought a preliminary injunction which would prevent the defendants from enforcing Section 1403.2-13.11(a)(3) & (4) of the Administrative Code of the City of New York from imposing fines or penalties under Section 1403.2-15.25 (d) thereof or from barring or attempting to bar the purchase, sale, offer for sale, storage or transportation of plaintiffs’ gasoline, intended for use in the City of New York, because of noneompliance with the provisions of the Administrative Code. By order dated March 22, 1973 Hon. Charles E. Stewart, Jr., United States District Judge, Southern District of New York, denied the plaintiffs’ motions for a preliminary injunction. Plaintiffs sought a stay pending appeal which was granted for a limited period by the District Court on March 26, 1973; that stay was extended by this Court on April 10, 1973 pending the expedited appeal granted to the parties from the order of Judge Stewart denying the preliminary injunction. We now hold that the stay ordered by Judge Stewart on March 26, 1973 and later extended by this Court should be further extended, conditioned upon the appellants’ readiness to go to trial within 30 days pursuant to this opinion.

Section 1403.2-13.11 of the Administrative Code of the City of New York provides for the gradual reduction of the lead content of gasoline to be sold in New York City over a four year period, from 2.0 grams per gallon in 1971 (premium fuel), to .5 grams per gallon by January 1, 1973 (premium and regular fuel) and to zero grams by January 1, 1974. Enforcement of the January 1, 1973 standard was suspended by the City Administrator until March 30, 1973 for regular gasoline and until June 28, 1973 for premium gasoline.

The Administrator of the Federal Environmental Protection Agency has by regulation, effective January 9, 1973, established a nation-wide control over lead in gasoline requiring that at least one grade of gasoline with a lead content of not more than .05 gram per gallon be generally available throughout the United States by July 1, 1974. 40 C.F.R. §§ 80.1-.24 (1973). It is urged that by taking this action the United States, pursuant to § 211(c)(4) of the Glean Air Act, 42 U.S.C. § 1857f-6c(c) (4), has preempted any non-identical regulatory action by the defendants here, thus rendering the pertinent sections of the City’s Administrative Code null and void under the Supremacy Clause of the Constitution of the United States. The defendants respond that the Administrator may regulate the use of fuel additives if they are found harmful to public health in themselves or if they significantly impair the performance of motor vehicle emission control devices. 42 U.S.C. § 1857f-6c(c)(l). Since the Administrator’s regulation is only aimed at protecting the efficiency of emission control devices, they claim that local municipalities are still free to enforce regulations to protect public health.

Plaintiffs also attack the City regulations as imposing substantial burdens on interstate commerce in violation of the Commerce Clause of the Federal Constitution. Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). In substance the plaintiffs claim that in order to provide gasoline with lower lead levels while maintaining current octane levels, they will be forced to expand vast sums to produce and distribute gasoline for use in New York City. Their normal manufacturing and distribution systems are geared to supply the Northeastern States generally and the segregation and transmission of a separate fuel limited to use in New York City, will allegedly disrupt current practices. Exxon estimates an initial expense of $100,000 with future expenses predicted at $500,000 per annum. The other four plaintiffs estimate added costs of $8,000,000 which are not fully compensable nor are the changes readily reversible. Separate refinery facilities will have to be provided and additional processes applied to subject crude oil to greater refinement or “aromatics” will have to be added, all of which it is alleged will add expense and result in a corresponding increase in prices to the consumer as well as a diminution in the supply of crude oil in a period of fuel shortages. Pipe line transmission in some cases will have to be abandoned and tanker transport substituted. Delivery to central distribution points now serving a broad market, will have to be rearranged or relocated.

In determining whether or not a preliminary injunction should be granted, Judge Stewart held that the plaintiffs must show a strong likelihood of ultimate success on the merits plus irreparable damage if the relief sought is not granted. E. g., Intercontinental Container Transport Corp. v. New York Shipping Ass’n, 426 F.2d 884 (2d Cir. 1970). Applying this norm and “weighing the equities” he concluded that on the record before him he could not find that the burden on interstate commerce is likely to be clearly excessive in relation to the benefits which the regulation would bestow upon the population of a high traffic area such as New York City’s. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). After making this determination the court proceeded to state: “Nevertheless, plaintiffs have raised substantial issues in this regard which may necessitate further inquiry as this case proceeds to a final determination on the merits.” He further found no federal preemption.

Appellants argue that in a case where the balance of hardships tips decidedly in favor of the party requesting relief, a preliminary injunction should issue where that party has raised “questions going to the merits so serious, substantial, and difficult as to make them a fair ground for litigation and-thus for more deliberate investigation.” Gulf & Western Industries, Inc. v. Great Atl. & Pac. Tea Co., 476 F.2d 687, 692 (2d Cir. 1973) (emphasis deleted), quoting from Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). Since Judge Stewart found that substantial, litigable issues were raised, it is urged that the “strong likelihood of ultimate success on the merits” test he employed was inappropriate since the equities are tipped heavily in favor of the plaintiffs. The defendants do not dispute the appellants’ statement of the law with respect to preliminary injunctions but maintain that in fact the balance of hardships tips highly in favor of the City of New York.

Since Judge Stewart did not apply the criterion concededly appropriate in view of his finding that a substantial litigable issue on the merits existed, he did not address himself to the question of “hardship tipping” except to state that he had balanced the equities without further explication. While we do have the power to reverse the lower court’s denial or grant of preliminary injunctive relief where there is an abuse of discretion or a clear mistake of law, Dino DeLaurentiis Cinematografica, S.p.A, v. D-150, Inc., 366 F.2d 373 (2d Cir. 1966); see 7 J. Moore, Federal Practice ¶ 65.04[1], at 65-35 to 65-36 (2d ed. 1972), and this would be appropriate particularly in a case where the preliminary injunction is sought simply to maintain the status quo pending a full hearing on the merits, 7 J. Moore, Federal Practice ¶ 65.04[1] (2d ed. 1972), we do not believe that course is appropriate here. The hardship to be suffered by the plaintiffs necessarily involves questions relevant to the issue of the burden on interstate commerce, which is difficult to ascertain absent an evidentiary hearing as indicated below. At the same time while we fully appreciate the concern of the City for the health of its citizens plagued with foul air which the defendants maintain is partially due to excessive lead particulate concentrations not only in areas of high traffic concentration but throughout the metropolitan area, we are not persuaded that reversal for further consideration of preliminary injunctive relief and assessment of “hardship tipping” will expedite the solution of an issue in which the parties maintain there are substantial questions of economic injury and public health involved.

In his order of March 26, 1973 granting the stay pending appeal, Judge Stewart found that enforcement of the Administrative Code would cause hardship to the plaintiffs and that a stay until April 15th (later extended by this Court) would not cause substantial harm. In our view we believe that no substantial harm and in fact expedition of the resolution of vexing issues would be accomplished if that stay is extended on condition that the appellants be ready for trial within 30 days from the filing of this opinion and that the trial proceed promptly thereafter. We recognize that the calendar of the Southern District is congested and that Judge SteWart who has been assigned to this case for all purposes and who is familiar with the facts and legal issues involved, may not be able to give this matter priority. If he should not be able to hear this case with the promptness that we have indicated it deserves, then we would request the Chief Judge of the Southern District Court to assign the matter to another trial judge who would be available for a prompt trial. The mandate shall issue forthwith and no costs are awarded. In view of this disposition of the case, we do not reach the preemption question.

      . The Exxon action seeks relief from the lead restriction section of the Administrative Code Section 1403.2-13.11, while the Getty, Gulf, Mobil and Sun action seeks relief from that provision and the volatility restrictions of Section 1403.2-13.12.
      Section 1403.2-13.11 provides:
      Lead content of gasoline restricted. — (a) No person shall cause or permit the use, or, if intended for use in the city of New York, the purchase, sale, offer for sale, storage or transportation of gasoline which contains more than the following amount of lead by weight for the respective octane ranges as follows:
      95.9 Octane No. Below 95.9
      & Above Octane No.*
      (1) On and after November 1, 1971 ... 2.0 grams per gal. 1.5 grams per gal.
      (2) On and after January 1, 1972 .....1.0 grams per gal. 1.0 grams per gal.
      (3) On and after January 1, 1973 .... 0.5 grams per gal. 0.5 grams per gal.
      (4) On and after January 1, 1974 .....zero grams zero grams
      * The term octane number shall mean research octane number or rating measured by the research method.
      (b) Where the lead content of gasoline is restricted to zero grams per gallon as in sub-section a, gasoline which contains 0.075 grams of lead per gallon shall be deemed to meet such restriction.
      Section 1403.2-13.12 provides:
      Volatility limits on gasoline, — Effective October 1, 1971, no person shall cause or permit the use, or, if intended for use in the city of New York, the purchase, sale, offer for sale, storage or transportation of gasoline which exceeds the following volatility, limits:
      (a) For the period October 1, through April 30, not to exceed 12 Reid vapor pressure.
      (b) For the period May 1 through September 30, not to exceed 7 Reid vapor pressure.

      . The pertinent portions of these regulations are:
      § 80.22 Controls applicable to gasoline retailers.
      (b) After July 1, 1974, every person who owns, leases, operates, controls, or supervises a retail outlet at which 200,-000 or more gallons of gasoline was sold during any calendar year beginning with the year 1971 shall offer for sale at least one grade of unleaded gasoline of not less than 91 Research Octane Xumber at such retail outlet; Provided, however, That the octane number of unleaded gasoline offered for sale in areas where altitude is gx-eater than 2,000 feet may be reduced one (1) octane number for each succeeding 1,000 feet but not more than three (3) octane numbers in total.
      (c) After July 1, 1974, every person who owns, leases, operates, controls, or supervises six or more retail outlets shall offer for sale at least one grade of unleaded gasoline of not less than 91 Research Octane Xumber at no fewer than 60 percent of such outlets; Provided, however, That the octane number of unleaded gasoline offered for sale in areas where altitude is greater than 2,000 feet may be reduced one (1) octane number for each succeeding 1,000 feet but not more than three (3) octane numbers in total.
      Section 80.2(g) defines “unleaded gasoline” as “gasoline containing not more than 0.05 gram of lead per gallon and not more than 0.005 gram of phosphorus per gallon.”

      . 42 TJ.S.C. § 1857f-6c(e) (4) provides:
      (A) Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any eonti'ol or prohibition respecting use of a fuel or fuel additive in a motor vehicle or motor vehicle engine—
      (i) if the Administrator has found that no control or prohibition under paragraph (1) is necessary and has published his finding in the Federal Register, or
      (ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such fuel or fuel additive, unless State prohibition ox-control is identical to the prohibition or control prescribed by the Administrator.
      (B) Any State for which application of section 1857f-6a(a) of this title has at any time been waived under section 1857f-6a(b) of this title may at any time prescribe and enforce, for the purpose of motor vehicle emission control, a contx-ol or prohibition respecting any fuel or fuel additive.
      (C) A State may prescribe and enforce, for purposes of motor vehicle emission contx-ol, a control or px-ohibition respecting the use of a fuel or fuel additive in a motor vehicle or motor vehicle engine if an applicable implementation plan for such State under section 1857c-5 of this title so provides. The Administx-ator may approve such provision in an implementation plan, or promulgate an implementation plan containing such a provision, only if he finds that the State control or prohibition is necessary to achieve the national primary or secondary ambient air quality standard which the plan implements.

      . The regulations promulgated so far (40 C.F.R. §§ 80.1-.24, in 38 Fed.Reg. 1254-56 (Jan. 10, 1973)) are based solely “upon a determination by the Administrator that the emission product of a fuel or additive will impair to a significant degree the performance of a motor vehicle emission control device . . . .”40 C.F.R. § 80.1. The Administrator has proposed regulations based upon the effect of lead on public health. Notice of Proposed Rule Making, 38 Fed .Reg. 1258-61 (Jan. 10, 1973). Proposed Regulation § 80.20(a) (1) provides:
      g 80.20 Controls applicable to gasoline refiners.
      (a) (1) In the manufacture of leaded gasoline at any refinery, no gasoline refiners shall exceed the average lead content per gallon specified below for each 3-month period (January through March, April through June, July through September, October through December) :
      (i) 2.0 grams of lead per gallon, after January 1, 1975;
      (ii) 1.7 grams of lead per gallon, after January 1, 1976;
      (iii) 1.5 grams of lead per gallon, after January 1, 1977;
      (iv) 1.25 grams of lead per gallon, after January 1, 1978.
      New York’s Implementation Plan (42 U.S.C. §§ 1857C-5, 1857f-6e(c)(4)(C)) has not yet received federal approval. The original draft of the Plan for the Metropolitan Area did not include the City’s lead restrictions, though the City subsequently proposed that the continued enforcement of Section 1403.2-13.11 (a)
      (3) be made a part of the Plan.


author: HEANEY, Circuit Judge.

text:
    Lonnie Leroy OWENS, Sr., Plaintiff-Appellant, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants-Appellees. Ida Ruth OWENS, Plaintiff-Appellant, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants-Appellees.
    Nos. 72-1653, 72-1654.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided June 12, 1973.
    James R. Welsh, Omaha, Neb., for appellant.
    Michael F. Kinney, Omaha, Neb., for appellee, Neis.
    David A. Johnson, Omaha, Neb., for appellee, Childrens Hospital.
    John T. Grant, Omaha, Neb., for appellee, Lombardo.
    Before HEANEY, Circuit Judge, BENSON, Chief District 'Judge, and WEBSTER, District Judge.

       District of North Dakota, sitting by designation.

         Eastern District of Missouri, sitting by designation.

   HEANEY, Circuit Judge.

Plaintiffs appeal from the trial court’s dismissal of their actions on the grounds of failure to state a claim upon which relief could be granted. Rule 12(b)(6), Federal Rules of Civil Procedure.

The facts for purposes of this review are those alleged in the plaintiffs’ complaints. On March 2, 1970, the plaintiffs admitted their son to Childrens Memorial Hospital, Omaha, Nebraska. He remained under the care and treatment of the hospital and the defendant doctors until he died on April 2, 1970. The plaintiffs allege that the defendants negligently failed to properly diagnose, treat and care for their son. They allege that they were in close proximity to their son throughout the period of his hospitalization and that they personally witnessed the negligence and malpractice of the defendants, and the physical and mental suffering of their son. They allege that as a direct and proximate result of the defendants’ negligence, they suffered and continue to suffer physical and mental anguish, great emotional disturbance, shock and injury to their nervous system.

The sole issue is whether, under Nebraska law, a parent can recover damages for the mental distress accompanied by physical injury resulting from witnessing the suffering of his child, which, in turn, was caused by the negligence of the child’s physicians and hospital personnel.

Nebraska law governs this diversity action. See, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The trial court was of the view that Nebraska statutory law did not permit recovery and concluded, from its review of Nebraska case law, that a common law action for such damages was not permissible.

The crucial question is whether the trial court was correct in holding that the Nebraska Supreme Court’s decision in Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937), rehearing denied, 135 Neb. 232, 280 N.W. 890 (1938), is not controlling here. There, the defendant negligently sold an unlabeled sack of poisoned bran to Rasmussen, a dairy farmer. Rasmussen fed the bran to his milk cows; a number of them died and others became sick. Concerned for the customers to whom he had already delivered the milk which had come from the sick animals and depressed and heartbroken from the loss of his entire dairy business, the farmer suffered a decompensated heart and ultimately died. Before dying, he brought a suit against the defendant for damages, including his pain and suffering. In the action, which continued after his death, the defendant was found to be negligent and Rasmussen’s estate was allowed to recover for the physical consequences of his emotional disturbances.

The trial court held that Rasmussen was not on point. It agreed that the case stands for the abolishment of the impact doctrine in Nebraska, but argues that the doctrine was abandoned only where the plaintiff was directly imperiled by the defendant’s negligent act. The court recognized that a broad reading of Rasmussen would permit recovery here, but stated that the Nebraska Supreme Court had indicated in the opinion that the case was to be read narrowly and confined to its facts. It then distinguished this case from Rasmussen. It reasoned that Rasmussen suffered, not as a result of witnessing negligence to another person, but for the loss of his own dairy business, which represented his total life savings and energy. Moreover, the court noted that Rasmussen has not been cited by the Nebraska courts since being handed down, and suggested from that fact that Rasmussen was an anomaly in Nebraska law.

The court reasoned that even if one assumes that the plaintiffs could prove that a sufficient “physical injury” has resulted from the emotional disturbance and mental anguish, there was no cognizable cause of action here because the plaintiffs, themselves, had not been the direct objects of the defendants’ negligent acts. It further stated that even if the Nebraska Supreme Court were to allow recovery without impact where the plaintiff was a witness to the peril of another, rather than the direct object of the peril, the court would permit recovery only if the plaintiff had been either within the “zone of physical danger” or put in fear for his own safety.

While we are not bound by the trial court’s view of local law, we must give special weight to it. Larry Luke, et al. v. American Family Mutual Insurance Company, Nos. 71-1348, 71-1374, 476 F.2d 1015, at 1019 (8th Cir., 1972), aff’d on rehearing en banc (1973). In the light of that doctrine, we are constrained to accept the trial court’s interpretation of Nebraska law and affirm its decision.

The denial of recovery is consistent with the position taken in the Restatement (Second) of Torts, §§ 313 & 436 (1965), and by the overwhelming majority of the courts in the United States. See, Annot., 29 A.L.R.3d 1337 (1970); see, e.g., Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D. 1972); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935). In the face of this authority, we are reluctant to say that the Nebraska Supreme Court would extend the liability of doctors and hospitals for malpractice beyond the individual patient involved where: (1) there was no impact, (2) the plaintiff was neither in the “zone of danger” nor feared for his own safety, and (3) the incident was slowly unfolding rather than traumatic. To do so, we believe would result in us creating a public policy for Nebraska which would not be adopted by their own courts. We note that the plaintiffs may not be without an alternative remedy here. The Nebraska Supreme Court has recently ruled that damages for the loss of the society, comfort and companionship of a minor child may be recovered under the Nebraska Wrongful Death Statute. See, Selders, Admr. v. Armentrout, Neb., 207 N.W.2d 686 (1973).

Affirmed.

      . The published opinion of the trial court may be found at 347 F.Supp. 663 (D. Neb.1972).

      . In the second Rasmussen decision, the majority stated:
      “In order that it may not be misunderstood, in this case the deceased was confronted with a series of disturbing facts. * * *
      * * * * *
      “This case can be made more difficult and the opinion seem to reach the wrong conclusions by a misconception of the facts in the case. If the facts are different than presented in this case, different reasoning and a different conclusion might be necessary. * * * ”
      Rasmussen v. Benson, 135 Neb. 232, 280 N.W. 890, 892-893 (1938).
      These limiting remarks were apparently made in response to a vigorous dissent which had suggested that the decision would permit recovery in situations such as that in the ingtant case.

      . In Larry Luke, et al. v. American Family Mutual Insurance Company, Nos. 71-1348, 71-1374, 476 F.2d 1015, at 1019 n. 6 (8th Cir. 1972), aff’d on rehearing en bane (1973), the Court stated:
      “This circuit has often stated that where the trial judge arrives at a permissible conclusion with respect to the law of his state, such conclusion will be binding on appeal. * * * Homolla v. Gluck, 248 F.2d 731, 733-734 (8 Cir. 1957). Only the Sixth Circuit has recited a similar position. * * * The continued application of such a rule has been soundly criticized. See 1 Barron & Holtzoff, Federal Practice and Procedure § 8, at 42 — 43 (1960); 1A Moore’s Federal Practice § .309 [2], at 124-125 n. 15 (1971 Supp.); Wright, Law of Federal Courts § 58, at 241 (1970). * * *
      “Other circuits have not ‘bound’ themselves to the district judge’s initial choice of state law. Rather, they tend to accord ‘great weight’ to the district court’s determination of local law unless they believe it to be clearly erroneous. See e. g., Freeman v. Ileiman, 426 F.2d 1050, 1053 (10 Cir. 1970); Minnesota Mutual Life Insurance Co. v. Lawson, 377 F.2d 525, 526 (9 Cir. 1967); Lomartira v. American Automobile Insurance Co., 371 F.2d 550, 554 (2 Cir. 1967). We feel future adherence to the principle set forth by the Fifth Circuit more adequately reflects a court of appeals’ proper course of review: ‘We give great weight to the view of the state law taken by the district judge experienced in the law of that state, although of course the parties are entitled to review by us of the trial court’s determination of state law just as they are of any other legal question in a case.’ Freeman v. Continental Gin Co., 381 F.2d 459, 466 (5 Cir. 1967). See also Stool v. J. C. Penney Co., 404 F.2d 562, 563 (5 Cir. 1968).” (Emphasis included and citations omitted.)

      . In recent years, some jurisdictions have permitted a plaintiff to recover for shock and mental anguish incurred from witnessing injury to a third person where the presence of the plaintiff was foreseeable. See, D’Ambra v. United States, 354 F.Supp. 810 (D.R.I.1973); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); see also, Rodrigues v. State, 472 P.2d 509 (Haw. 1970). This view is supported by commentators. See, W. Prosser, The Law of Torts, § 55 (3rd ed. 1964),; see also, 18 So.Dak.L.Rev. 251 (1973); Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237 (1971) ; 1 UCLA-Alaska L.Rev. 64 (1971); but see, 73 Diclt.L. Rev. 350 (1969).