author: FEINBERG, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Gerosa, Incorporated, Respondents.
    No. 280, Docket 73-1428.
    United States Court of Appeals, Second Circuit.
    Submitted Jan. 10, 1974.
    Decided Feb. 11, 1974.

      Irving Jaffe, Acting Asst. Atty. Gen., Walter H. Fleischer, Robert M. Feinson, Stephen F. Eilperin, Michael H. Stein, Attys., Dept. of Justice; William J. Kilberg, Solicitor of Labor; Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health; Michael H. Levin, Counsel for Appellate Litigation; Douglas R. Earle, Washington, D. C. for petitioner.
    Cunningham & Earning, P. C., New York City, for respondent Gerosa, Incorporated.
    Before KAUFMAN, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
   FEINBERG, Circuit Judge:

The Secretary of Labor petitions for review of an order of the Occupational Safety and Health Review Commission, which held that respondent Gerosa, Incorporated (the Company) did not violate a safety regulation promulgated by the Secretary under the Occupational Safety and Health Act of 1970 (the Act). 29 U.S.C. §§ 651 et seq. As we have recently noted, the Act is but one of many recent statutes that call upon the federal courts to deal with new and difficult problems. This is apparently the first enforcement proceeding we' have had under the Act. Specifically, the Secretary complains that the Company violated 29 C.F.R. § 1926.550(a)(5) (the Regulation) by failing to designate a competent person “to make sure” that a crane under its control was “in safe operating condition” before and during use. Because we believe that the Commission misinterpreted the Regulation’s designation requirement, we grant the petition for review and vacate the Commission’s order.

I

The undisputed facts are as follows: In October 1971, a worker was killed because a crane, rented by the Company and staffed by its employees, an operator and an oiler, went out of control. The crane was being used to raise steel column^ into place during the construction of a power plant. The day before the accident, the crane was assembled at the worksite, and the operator conducted a “test run” of the crane, raising the boom and letting it down again. At this point, the boom fell to the ground. A crane mechanic was promptly called to the scene but, before he could arrive, the oiler and the operator made adjustments which seemed to restore the crane to normal working order. These adjustments satisfied the mechanic, and the crane lifted one column into place before high winds curtailed its operations for the day. The next morning, the oiler, following normal procedure, ran the crane through a test run without incident, raising, lowering, and swinging the boom. However, while lifting the first steel column of the day, the boom went out of control, struck a concrete pole and fell free, fatally injuring the worker.

The crane was inspected the day after the accident by a police detective, expert crane mechanics from the manufacturer and the crane servicing company, and two Department of Labor compliance officers. The inspection revealed that the boom brake bands were coated with a greasy substance and that the backup system to the boom brakes was inoperative because of a missing clevis pin. On the basis of this inspection, the Secretary cited the Company for a violation of the Regulation, which deals with cranes and derricks, and provides as follows:

The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

The Secretary claimed that the Company had not followed adequate safety inspection procedures and that it had failed to designate a competent person to inspect the crane for safety before and during each use. A penalty of $400 was assessed, and the Company elected to contest the citation and assessment.

A hearing was held before a Commission judge (the Hearing Judge), at which the operator and those who had inspected the crane testified; only the crane service representative testified for the Company. After reviewing the testimony, the Hearing Judge affirmed the citation and proposed penalty, noting that the evidence against the Company “is so clear and compelling as to require but little discussion.” Relying on the operator’s testimony that neither he nor the oiler was detailed to conduct any safety inspection of the crane, the judge concluded that the Company had violated the designation requirement of the Regulation. Characterizing a crane as “at best an inherently dangerous instrumentality,” he interpreted that requirement to demand “specific and positive action” by an employer to inform its employees of their inspection duties. Further, the Hearing Judge implicitly held that the inspection procedures themselves were inadequate under the Regulation for omitting visual and physical inspection of the boom lift mechanism; in his view, the greasy brake bands and inoperative backup system were readily detectable defects, which exposed the Cornpany’s employees to considerable danger and caused a loss of life.

The Company obtained discretionary review, under 29 U.S.C. § 666(i), by the three-man Commission, which set aside the Hearing Judge’s decision and vacated the Secretary’s citation. The Commission held that under industry practice the assignment of a competent oiler and operator to a crane was, “albeit not specifically stated,” a designation in compliance with the Regulation. In addition, the Commission ruled that the Regulation requires only a reasonable inspection and that this requirement was satisfied by the test run procedure. According to the Commission, the defects found by the Hearing Judge were not discoverable by reasonable inspection. Following the Commission’s decision, the Secretary brought this petition for review, under 29 U.S.C. § 660(b).

II

Before turning to the merits, we think it useful briefly to discuss the Act itself, which has been called “the most revolutionary piece of ‘labor’ legislation since the National Labor Relations Act.” Whether that assessment be hyperbolic or not, there can be no doubt of the significance of a statute which affects an estimated 4.1 million business establishments with 57 million employees. Several features of the statute are of immediate significance. The dramatic legislative history of the Act demonstrates that Congress regarded it as an important piece of remedial legislation, designed to reduce “work-related injuries and illnesses,” which cause “ever-increasing human misery and economic loss.” S.Rep.No.91-1282, 91st Cong., 2d Sess. (1970), quoted at 1970 U.S.Code Cong. & Admin.News, p. 5177. Each year prior to the passage of the Act, 14,000 workers died and 2.2 million were disabled by accidents in the workplace. Congress hoped to achieve its objective of preventing accidents by encouraging employers “to institute new and to perfect existing programs for providing safe and healthful working conditions.” 29 U.S.C. § 651(b)(1). The Act contains a section imposing upon employers a general duty to provide a safe work environment. 29 U.S.C. § 654(a)(1). However, Congress apparently placed primary reliance upon promulgation by the Secretary of specific regulations, such as the one in this case, which the statute commends employers to obey. 29 U.S.C. § 654(a)(2); S.Rep.No.91-1282, supra, 1970 U.S.Code Cong. & Admin. News at pp. 5185-5186. Thus, it is especially important that these regulations be construed to effectuate congressional objectives. Cf. A. H. Phillips Co. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945); Reliable Coal Corp. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973). While the Regulation before us is limited to cranes and derricks, and the proposed penalty is small, the potential impact of the Commission’s decision is large indeed. There have been many regulations issued under the Act similar to the one involved here.

The Company claims that the only question before us is whether the Commission’s order, under 29 U.S.C. § 660(a), (b), is “supported by substantial evidence on the record considered as a whole. . . .” The Secretary maintains, however, that the issues here are essentially legal, involving interpretation of the designation and inspection requirements of the Regulation. At least as to the former, the Secretary is undoubtedly correct. We will assume that our role, then, is to decide whether the Commission’s interpretation of the Regulation is unreasonable and inconsistent with its purpose, the normal standard for review of the interpretation of a regulation by the agency charged with its administration. E. g., Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); Jno. McCall Coal Co. v. United States, 374 F.2d 689 (4th Cir. 1967). This assumption may be unduly deferential to the Commission, since the Act entrusts only adjudicatory functions to the Commission while assigning rulemaking power and initiation of enforcement proceedings to the Secretary. Indeed, the rule of the cited decisions appears to apply with full force only to a long-standing agency interpretation, see, e. g., Wilderness Soc’y v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, 864-865, cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973), certainly not the case here, when the Act had been effective for less than two years at the time the Commission ruled. In any event, we need not pursue these thoughts further because we believe that the Commission’s interpretation cannot stand even if its views are given the deference called for under the authorities cited above.

The issue before us is the meaning of “designate” in the Regulation: Can this be done tacitly, as the Commission held, or must the “competent person” be explicitly told that he is charged with inspecting for safety? The word itself strongly supports the view of the Hearing Judge and the Secretary that the Regulation requires “specific and positive action” by an employer to inform an employee of the existence and nature of his safety inspection duties. In its ordinary usage, “designate” connotes formal selection and notification, both of which were absent from the employer’s conduct here.

More importantly, the Secretary’s interpretation seems far better calculated than the Commission’s to achieve the congressional goal of accident prevention. If the Commission’s position were accepted, an employee relied upon to “make sure” that machinery “is in safe operating condition” might not be aware of his duty. However strongly industry inspection practices may be established, there will always be employees who are inexperienced or inclined to neglect their inspection duties. Only the Secretary’s interpretation offers any assurance that such workers will know of their responsibilities and take them seriously. Further, under the Commission’s view, an employer could satisfy the designation requirement merely by relying, without inquiry, on his employee’s competence and familiarity with industry practices. Here, for example, the Company’s own witness testified that its knowledge of the oiler’s and the operator’s qualifications at the time they were assigned their jobs rested solely on the representations of their union. Such an. interpretation seems to us to disregard the admonition of Congress that final responsibility for complying with the provisions of the Act rests with the employer, see note 9 supra, and to overlook the fact that congressional dissatisfaction with existing industry practices was a major impetus behind passage of the Act.

Accordingly, we conclude that under the Regulation an employer does not properly “designate” an inspector unless it explicitly informs him of the existence and nature of his inspection duties. On this construction of the Regulation, it is clear that the Company failed to live up to its requirements.

III

The Secretary claims that the Commission erred in another respect. The Commission held that the safety inspection required by the Regulation need only be a “reasonable” one, and that the Company employees here met that standard. While agreeing with the former conclusion, the Secretary argues that the latter is wrong as a matter of law because the record clearly shows that a simple visual safety inspection of the boom lift mechanism, which the oiler and operator failed to make, would have revealed the defects. The Secretary’s position is a strong one, since both expert crane mechanics, one of whom was the Company’s only witness, agreed that “anybody could see” that the clevis pin was missing, and both the detective and one of the compliance officers, neither of whom was an expert crane inspector, quickly observed that the brake bands were coated with grease. However, we need not consider this question further, since, for the reasons stated in Part II supra, the Commission’s order should be set aside in any event.

Finally, the Company argues that we should not grant the petition for review because it was deprived of important procedural rights by the Hearing Judge. The Company complains that it was denied access to investigatory notes and reports, prepared by two Labor Department compliance officers, which it needed to impeach the officers’ direct testimony. The record shows, however, that the Secretary made all the documents prepared by one officer available to the Company, and that the direct testimony of the other related only to the computation of the proposed penalty. In any event, on this point, as well as on the Company’s additional claim that the Hearing Judge improperly restricted its cross-examination, we find no abuse of discretion or prejudicial error.

Accordingly, we grant the petition for review, vacate the Commission’s order, and enforce the Secretary’s amended citation and proposed penalty.

      . Associated Indus., Inc. v. United States Dep’t of Labor, 487 F.2d 342, 344-345 & n. 1 (2d Cir. 1973).

      . We have reviewed the Secretary’s promulgation of health standards under the Act. See Associated Indus., Inc. v. United States Dep’t of Labor, supra note 1.

      . At the time of the citation, the Regulation appeared at 29 C.F.R. § 1518.550(a) (5).

      . The Commission found, over the Company’s objections, that this degree of control over the crane imposed upon the Company the duty to comply with the Regulation. This finding is not questioned in this court.

      . White & Carney, OSHA Comes of Age: The Law of Work Place Environment, 28 Bus.Law 1309 (1973) (White & Carney).

      . White & Carney 1309.

      . The legislative struggles, delays and compromises that led to the Act are recounted in BNA, The Job Safety and Health Act of 1970 at 13-21 (1971) (BNA).

      . BNA 13.

      . The Act also places obligations upon employees, 29 U.S.C. § 654(b), but final responsibility for compliance rests with the employer. S.Rep.No.91-1282, supra, 1970 U.S.Code Cong. & Admin.News at p. 5187.

      . E. g., 29 C.F.R. § 1926.803(a)(1) ; 29 C. F.R. § 955(b)(3) & (8).

      . For an example of the sharp conflict created by this division of authority, see Brennan v. OSHRC (Brent Towing Co.), 481 F.2d 619 (5th Cir. 1973), characterizing a dispute between the Secretary of Labor and the Commission as “an administrative whirlwind of ... minor proportions.” Id. at 620.

      . For the same reason, we put to one side the perhaps simplistic thought that the meaning of a regulation might best be fathomed by its author, here the Secretary. But see Brennan v. OSHRC (Bounds), 488 F.2d 337 (5th Cir. 1973).

      . 29 C.F.R. §§ 1926.32(h) & (d) together define “designated person” as :
      . . . [A] person approved or assigned by the employer to perform a specific type of duty or duties or to be at a specific location or locations at the job-site.
      This definition, however, does not resolve the issue before us—whether the employer must inform the employee that he has been so designated.

      . While it is true that the Commission stared “It is not known whether the respondent [the Company] specifically instructed either the operator or the oiler to inspect,” there was no evidence in the record that the Company explicitly told either the oiler or the operator of their inspection duties, and the Company has not made that claim in this court or before the Commission. Rather, the operator testified, as the Hearing Judge noted, that neither he nor the oiler was detailed to conduct any safety inspection of the crane. Any finding to the contrary would, on this record, have to be set aside.

      . Because the Commission has broad powers of review of the Secretary’s proposed penalties, see 29 Ü.S.C. §§ 659(c), 666(i) ; Brennan v. OSHRC (Interstate Glass Co.), 487 F.2d 438 (8th Cir. 1973), we would be inclined to remand to the Commission if the Company had substantial objections to the penalty. However, the Company raised no objections to the penalty in this court and only frivolous ones below. Under these circumstances, a remand would be a mere formality.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Robert Steven MOSHER, Petitioner-Appellee, v. J. Edwin LAVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellant.
    No. 58, Docket 73-1354.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 5, 1973.
    Decided Jan. 8, 1974.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1611.
    Robert S. Hammer, Asst. Atty. Gen., of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen. and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellant.
    Michael Meltsner, New York City, for petitioner-appellee.
    Carl A. Vergari, Dist. Atty. of Westchester County, Janet Cunard, Senior Asst. Dist. Atty., and Jon Willeox, Asst. Dist. Atty., White Plains, N. Y., for amicus curiae.
    Before WATERMAN, FRIENDLY, and TIMBERS, Circuit Judges.
   PER CURIAM:

On this appeal from an order entered in the Southern District of New York, Frederick van Pelt Bryan, District Judge, granting a state prisoner’s petition for a writ of habeas corpus after an evidentiary hearing, the essential issue is the correctness of the district court’s conclusion that the prisoner’s guilty plea must be vacated because it was involuntarily entered or because the prisoner was denied the effective assistance of counsel. We hold that the district court's findings of fact are not clearly erroneous and that its conclusions of law reflect a correct application of the controlling law. We affirm.

In view of the district court’s detailed statement of both the facts and the controlling law, it is sufficient for our purpose merely to state the claims asserted and the district court’s rulings thereon, with which we agree.

Mosher and two co-defendants were indicted in the Westchester County Court for the March 1964 armed robbery of the United States Post Office at Maryknoll Seminary, Ossining, New York. After first pleading not guilty to the four count indictment, Mosher on June 17, 1964, before Hon. Robert J. Trainor, changed his plea to one of guilty to the count charging armed robbery in the first degree. On July 9, 1964, Judge Trainor sentenced Mosher as a second felony offender to not less than 40 nor more that 60 years.

After exhausting state remedies with respect to his conviction and sentence, Mosher commenced the instant habeas corpus proceeding in the district court. His claims that his guilty plea was involuntarily entered and that he was denied the effective assistance of counsel turn upon the events of the morning of June 17, 1964 just prior to the entry of his plea of guilty. The district court, finding that issues of fact were raised by the papers submitted on the habeas corpus application, held an evidentiary hearing. At this hearing there was testimony by Justice (formerly Judge) Trainor, Mosher, his two co-defendants, the attorney for one of the co-defendants, and James T. Morahan, Esq., the retained attorney for Mosher at the time of his guilty plea in the County Court.

The critical findings made by the district court after the evidentiary hearing are as follows:

“1. Mosher was induced to plead guilty by representations and assurances given him by his counsel, Morahan, which Mosher believed, that Judge Trainor had promised to give him a minimum sentence of 15-16 years if he [pleaded guilty] .
2. No such promise had in fact been made by Judge Trainor and the representations and assurances given to Mosher by Morahan that such a promise had been made by the Judge were contrary to the fact and untrue.
3. The sentence of 40-60 years received by Mosher on his guilty plea was directly contrary to the assurances given by Morahan to Mosher as to the Judge’s promise as to the sentence which would be imposed.” 351 F.Supp. at 1107.

On the basis of these findings, which we hold were not clearly erroneous, the district court concluded that Mosher’s guilty plea must be vacated because it was involuntarily entered and also because Mosher was denied the effective assistance of counsel. We agree.

The State correctly notes that this is not a case like those where a guilty plea has been held involuntary because induced by an unfulfilled promise of a lenient sentence made by a judge or prosecutor. See, e. g., Santobello v. New York, 404 U.S. 257 (1971). On the other hand, this is likewise not a case where a defendant’s belief that he will receive leniency is induced by an erroneous estimate made by defense counsel, see United States ex rel. Scott v. Mancusi, 429 F.2d 104, 108 (2 Cir. 1970), cert. denied, 402 U.S. 909 (1971); United States ex rel. Bullock v. Warden, 408 F.2d 1326, 1330 (2 Cir. 1969), cert. denied, 396 U.S. 1043 (1970), nor is this a case where a defendant pleads guilty under the subjective mistaken impression or belief that a promise has been made by a judge of a lenient sentence and instead a heavy sentence is imposed, see United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2 Cir. 1972); United States ex rel. LaFay v. Fritz, 455 F.2d 297, 302-03 (2 Cir.), cert. denied, 407 U.S. 93 (1972); in neither of these situations will the guilty plea be held to have been involuntary.

The instant case is the rare one— unique in this Circuit so far as we know —where after an evidentiary hearing the district court has made a finding based on substantial evidence that the state prisoner has sustained his burden of proving that the circumstances as they existed at the time of the guilty plea, judged by objective standards, United States ex rel. Curtis v. Zelker, supra, 466 F.2d at 1098, reasonably justified his mistaken impression-—here, a false statement by defense counsel to Mosher that a promise of a minimum sentence had been made by the judge who thereafter imposed the maximum sentence.

We also agree with the district court’s alternative holding that under the particular circumstances of this ease Mosh-er’s guilty plea must be vacated because he was denied the effective assistance of counsel. Cf. United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, 42-43 (2 Cir. 1972), cert. denied, 410 U.S. 917 (1973), and authorities there cited. And we hold that the district court did not abuse its discretion, following by analogy Santobello v. New York, supra, 404 U.S. at 263, in fashioning relief here so as to grant to the state courts the option of requiring that Mosher be given the sentence he thought he had bargained for, or permitting him to withdraw his guilty plea and to stand trial on the indictment.

Finally, we note that this case provides a striking example of the desirability of opening up the plea bargaining procedure, as recommended by the ABA Standards Relating To Pleas Of Guilty (Approved Draft, 1968) and the ALI Model Code Of Pre-Arraignment Procedure, Tent.DraftNo.5, Art.350 (April 1972).

Affirmed.

      . Mosher’s conviction and sentence were affirmed on direct appeal. People v. Mosher, 29 App.Div.2d 549, 286 N.Y.S.2d 791 (2nd Dept. 1967) (mem.). Leave to appeal to the New York Court of Appeals was denied on March 27, 1968.
      Coram nobis petitions, raising substantially the same issues as in the instant habeas corpus proceeding, were denied without a hearing by the Westchester County Court on December 16, 1968. The Appellate Division affirmed. People v. Mosher, 33 App.Div.2d 906, 307 N.Y.S.2d 846 (2nd Dept. 1970) (mem.). Leave to appeal to the New York Court of Appeals was denied on April 17, 1970.

      . The portion in brackets conforms to the district court’s findings, 351 F.Supp. at 1106, and corrects the erroneous statement under paragraph “1.”, 351 F.Supp. at 1107.


author: BROWNING, Circuit Judge.

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. LOCAL UNION 400, BAKERY & CONFECTIONERY WORKERS’ INTERNATIONAL UNION OF AMERICA, AFL-CIO, Defendant-Appellee.
    No. 72-2231.
    United States Court of Appeals, Ninth Circuit.
    Jan. 9, 1974.

      William D. Keller, U. S. Atty., Phillip S. Malinsky, Asst. U. S. Atty., Los Angeles, Cal., Walter H. Fleischer, Joseph B. Scott (argued), E. Grey Lewis, Acting Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Hirsch Adell, Charles K. Hackler (argued), Marylove Maloney Lee, Warren, Adell & Miller, Los Angeles, Cal., for defendant-appellee.
    Before BROWNING and WRIGHT, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, United States District Judge, District of Oregon, sitting by designation.

   BROWNING, Circuit Judge.

In Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), a union held an unsupervised election after the Secretary of Labor had filed a civil action under section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, charging that violations of section 401 had occurred in an earlier election. The Court held that the union’s unilateral act of holding a new unsupervised election after an action was filed did not deprive the Secretary of his right to a court-ordered election under his supervision. We hold that the same rule applies if the union unilaterally conducts a second election before the Secretary files suit but after a union member has filed a proper complaint under section 402(a) of the Act.

Section 401 of the Act, 29 U.S.C. § 481, imposes certain requirements with respect to the election of union officials, designed to insure democratic control of union affairs. Section 402, 29 U.S.C. § 482, provides for the enforcement of these requirements: subsection (a) provides that a member of a union who has either exhausted internal union remedies with respect to an alleged section 401 violation or has attempted to do so but has not obtained a union decision within three months may file a complaint with the Secretary of Labor within one month thereafter; subsection (b) provides that the Secretary shall investigate the complaint and, if he finds probable cause to believe a section 401 violation has occurred “and has not been remedied,” shall file an action against the union within 60 days; and subsection (c) provides that if the court finds a violation has occurred that “may have affected the outcome” of the challenged election, the court shall declare that election void and order a new election conducted “under supervision of the Secretary.”

In this case the challenged election was held in June, 1970. An unsuccessful candidate filed a timely protest, but the union did not render a decision on the protest within three months. On October 16, 1970, the protesting union member filed a complaint with the Secretary of Labor.

On Octobr 28, the Secretary notified the union that he had found probable cause to believe section 401 had been violated during the June election. The Secretary told the union it could avoid an action under section 402(b) either (1) by consenting to a new election conducted under the supervision of the Secretary, or. (2) by holding a new election without supervision, provided this election was conducted in full compliance with section 401 and was completed by December 5, ten days before the expiration of the statutory 60-day period for filing suit.

The union declined to consent to a supervised election. Instead, it notified the Secretary that a new election would be held, but that it would not be completed until seven days after the deadline fixed by the Secretary. The second election was completed as scheduled on December 12, with the same results as the challenged June election. On December 15, the last day of the statutory period for filing suit, the union informed the Secretary of the completion of the new election.

The Secretary filed this action the same day. He alleged violations of section 401 in the June, 1970 election that “had not been remedied at the time of institution of this action.” The Secretary asked that the June election be declared void and that the union be directed to conduct a new election under the Secretary’s supervision.

Each party moved for summary judgment. The district court granted the union’s motion, and the Secretary appealed.

The union does not challenge the sufficiency of the protesting union member’s complaint to the Secretary regarding the June election. It also concedes there was probable cause to believe that section 401 was violated in the June election. The union contends, however, that the completion of the December election before the Secretary filed suit “remedied” the earlier violations within the meaning of section 402(b). Noting that the Secretary does not attack the validity of the second election in this action, and that no union member filed a timely protest to the second election, the union argues “[t]he uncontested validity of the second election deprives the Secretary of any grounds to contest the first, for a condition precedent to his bringing an action is an unremedied violation.”

It seems to be the union’s view, in short, that the statutory prerequisites for a court-ordered supervised election must be established as to the second election, including, apparently, the requirement that the Secretary act only upon the complaint of a member of the union who has exhausted internal union remedies. The Secretary’s position is that a union’s statutory right to avoid a supervised election by remedying a violation of section 401 ends when a member’s protest is rejected or left unresolved by the union and a timely complaint is filed with the Secretary; the Secretary’s right to a court order requiring a supervised election cannot be displaced thereafter by any unilateral action of the union.

We believe the Secretary’s interpretation is more consistent with the statute’s language and better serves the congressional purpose.

Section 402 provides, as we have seen, that a member “who has exhausted the remedies available under the constitution and bylaws” of his union may file a complaint with the Secretary. The statute continues, “The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied he shall, within sixty days after the filing of such complaint, bring a civil action.”

The ordinary meaning of this language is that the determinations required of the Secretary relate to conditions existing prior to the filing of the union member’s complaint: The Secretary is to determine whether there is probable cause to believe that section 401 was violated in the conduct of a union election and, if so, whether the violation was remedied in the course of the required exhaustion of the union’s internal grievance procedures. The 60-day provision limits the Secretary’s right to file an action, but nothing in the wording suggests that it also extends the time during which the union may remedy earlier violations.

Turning to the statutory purpose, it is true that Congress “intended to foster a situation in which the unions themselves could remedy as many election violations as possible without the Government’s ever becoming involved. Achieving this objective would not only preserve and strengthen unions as self-regulating institutions, but also avoid unnecessary expenditure of the limited resources of the Secretary of Labor.” Hodgson v. Local 6799, Steelworkers, 403 U.S. 333, 339, 91 S.Ct. 1841, 1845, 29 L.Ed.2d 510 (1971).

It is equally clear, however, that the means adopted by Congress to accomplish this purpose was the requirement of section 402(a) that a union member exhaust his internal union remedies before seeking the aid of the Secretary. Hodgson v. Local 6799, Steelworkers, supra. See also Wirtz v. Local 153, Glass Bottle Blowers, supra, 389 U.S. at 472, 88 S.Ct. 643, 19 L.Ed.2d 705; Note, Union Elections and the LMRDA: Thirteen Years of Use and Abuse, 81 Yale L.J. 409, 474 (1972); Note, Labor Law —The Enforcement Power of the Secretary of Labor under Section 402 of the LMRDA, 1971 U.Ill.L.F. 745, 756. If the union’s power to unilaterally remedy election violations also extended into the period after union grievance procedures had been unsuccessfully exhausted and a complaint filed with the Secretary, the accomplishment of Congress’ objectives would be impeded, not advanced.

Once a protesting union member has exhausted his union remedies and filed a timely complaint with the Secretary, it is too late to avoid government intervention. It is also too late to avoid a needless expenditure of the Secretary’s limited resources. The Secretary is already involved, how deeply depending on the speed with which the Secretary has moved in the particular instance. In the present case, for example, before the Secretary received telephonic notice of the completion of the second unsupervised election he had completed his investigation of the alleged violations, made his finding of probable cause, determined that the violations had not been remedied, conferred with the union, and prepared and filed suit.

Further, union self-government would be hampered rather than fostered by the construction suggested by appellant.

The union argues to the contrary, distinguishing Bottle Blowers on the ground that in that case the second election was a regularly scheduled biennial election, held after the action was filed, while in this case the second election was a special remedial election undertaken solely to cure the defects of the first and held before suit was filed. Unlike the second election in Bottle Blowers, the union argues, the second election in this case furthered the congressional purpose of strengthening union self-government by permitting unions to police their own affairs and correct their own deficiencies. But “it is disingenuous at best” to argue that it is “an exercise of responsible union self-government” for the union to call a special election only after it has been notified that the Secretary has found probable cause to believe the union has violated the law. Hodgson v. Local 1299, Steelworkers, 453 F.2d 565, 576 (6th Cir. 1971).

Moreover, unless deferring action until the Secretary finds probable cause and is about to file suit would increase the risk of a court-ordered supervised election, there would be little incentive for the union to provide an effective remedy in any but the most egregious cases, or to provide such a remedy at an early stage. Conversely, if affording an effective remedy in the course of the union’s internal grievance proceeding is the only way in which the union can be sure to avoid a court-ordered election under the Secretary’s supervision, the union has a substantial incentive to respond quickly and effectively to the legitimate protests of its members.

In addition, the construction of section 402 apparently urged by appellant would permit a recalcitrant union to delay or even preclude effective enforcement of section 401. Such a union, by holding an unsupervised “remedial” election after notice of probable cause was received from the Secretary but before an action was filed, could compel the protesting member to file a new grievance, again exhaust union remedies, and refile his complaint with the Secretary if he still wanted government intervention. The Secretary, in turn, would be required to conduct a new investigation and make new findings regarding probable cause and the lack of remedial action. The time lost would be substantial. Note, supra, 81 Yale L.J. at 533, App.D. The longer the supervised election was delayed, the more likely it would be that those who had gained office through the tainted election would become entrenched and difficult to unseat. Moreover, a defiant union could avoid ever submitting to a supervised election by repeatedly holding unsupervised “remedial” elections after internal remedies were exhausted on each previous election but before an action was filed.

Because of this potential for delay and obstruction, the interpretation suggested by the union would seriously weaken the bargaining power of the Secretary and thus impede the attainment of two congressional objectives. Congress expressed a preference for an election supervised by the Secretary as the remedy for section 401 violations, believing that “only a supervised election could offer assurance that the officers who achieved office as beneficiaries of violations of the Act would not by some means perpetuate their unlawful control.” Bottle Blowers, supra, 389 U.S. at 474, 88 S.Ct. at 650. And Congress hoped to achieve a maximum of voluntary compliance, the objective being “not a lawsuit but . ‘aid in bringing about a settlement through discussions before resort to the courts.’ ” Bottle Blowers, supra, at 472, 88 S.Ct. at 649, citing Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). If a union could defeat the Secretary’s cause of action by unilaterally undertaking an unsupervised election after the Secretary found probable cause, the union would have little reason to engage in settlement discussions with the Secretary, and even less to agree to a supervised election.

To minimize these problems the Secretary would be compelled to file suit as quickly as possible after receipt of a complaint of section 401 violation. This course would, in itself, seriously reduce the possibility of negotiated settlements (cf. Note, Waivers of the LMRDA § 402(b) 60-Day Time Limit, 1971 Duke L.J. 1199, 1223), and result in the filing of ill-considered and unnecessary suits, needlessly burdening the Secretary, the unions, and the courts.

The conclusion we reach is foreshadowed by the Supreme Court’s language in Bottle Blowers: “[I]t is incorrect to read these provisions circumscribing the time and basis for the Secretary’s intervention as somehow conditioning his right to relief once that intervention has been properly invoked. Such a construction would ignore the fact that Congress, although committed to minimal intervention, was obviously equally committed to making that intervention, once warranted, effective in carrying out the basic aim of Title IV.” 389 U.S. at 473, 88 S.Ct. at 649.

The Secretary’s intervention is invoked by the filing of a timely complaint after internal remedies have been exhausted. The congressional commitment to voluntary redress has then been met. The Secretary’s right to the statutory remedy of a supervised election cannot be defeated by any subsequent independent action of the union, whether it occurs before the Secretary files an action or after. See also Hodgson v. Local 1299, Steelworkers, supra, 453 F.2d at 576-577; Goldberg v. Amalgamated Local 355, 202 F.Supp. 844, 846 (E.D.N.Y. 1962).

Like any other potential litigant, the Secretary may attempt to settle the matter by agreeing not to file suit in exchange for compliance with prescribed conditions. But if no agreement is reached, or the conditions agreed upon are not met, the Secretary is free to proceed.

Reversed and remanded for further proceedings.

      . The Secretary stated, in answer to an interrogatory, that “the second election did not fully meet all the requirements of Title IV of the [Act].” The union, however, claims this statement is insufficient to contest the validity of the second election, because there is no allegation that any violations “may have affected the outcome” of the second election. See § 402(c) of the Act, 29 U.S.C. § 482(c).

      . The complaining member filed a protest with the union regarding the December election, but apparently not within the time fixed by the union’s internal rules. He also filed a complaint with respect to the December election with the Secretary.

      . It is possible that the union’s position, at least alternatively, is only that in order to succeed in an action on the first election the Secretary must allege and prove with specificity why the second election was ineffective as a remedy. This interpretation would not necessitate compliance with the statute’s procedural requirements as to the second election in order to attack the first election. Since we agree with the Secretary that the union’s opportunity to remedy its illegal actions unilaterally is cut off by the proper filing of a complaint with the Secretary, we reject this position as well as the more extreme position stated in the text.

      . Any interpretation of the statute which discouraged effective internal union redress would be unfortunate. Internal union relief provides the quickest redress of election violations. The Election Labyrinth: An Inquiry into Title IV of the LMRDA, 43 N.Y.U.L.Rev. 336, 363, 373 (1968). Litigation, on the other hand, entails delays so protracted that the judicial remedy has been called a “hollow pretense.” Rauh, LMRDA —Enforce It or Repeal It, 5 Ga.L.Rev. 643, 647 (1971). See Wirtz v. Operating Engineers Locals 410, 410A, 410B, 4100, 366 F.2d 438, 444 (2d Cir. 1966). Also, some members with strong union ties will not go outside the union for redress and thus are dependent on effective internal remedies. The Election Labyrinth, supra, at 363, 373.

      . A large percentage of the complaints in which the Department of Labor finds probable cause to believe that election violations have occurred are settled before an action is filed. Note, Election Remedies under the Labor-Management Reporting and Disclosure Act, 78 Harv.L.Rev. 1617 (1965) ; Note, Waivers of the LMRDA § 402(b) 00-Day Time Limit, 1971 Duke L.J. 1199; Note, Union Elections and the LMRDA: Thirteen Years of Use and Abuse, 81 Yale L.J. 409, 493 (1972). The usual requirement made of tlie union is submission to a supervised election. However, the Secretary does allow unsupervised second elections in certain situations. Union Elections, supra, at 494; Note, The Election Labyrinth, supra note 4, 43 N.Y.U.L.Rev. at 370-71.

      . The conditions imposed by the Secretary in this instance (first, that the rerun election be conducted in full compliance with § 401; and, second, that the rerun election be comploted in sufficient time to permit the Seeretary to determine, before the time for filing an action expired, whether the first condition has been met) were entirely reasonable,


author: TIMBERS, Circuit Judge: KAUFMAN, Chief Judge

text:
    Dorothy A. FLEMING, Plaintiff-Appellant, v. Evelyn McENANY et al., Defendants-Appellees.
    No. 38, Docket 72-2350.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18, 1973.
    Decided Jan. 8, 1974.

      William M. McCarty, Jr., Brattleboro, Vt. (J. Morris Clark, Burlington, Vt., on the brief), for plaintiff-appellant.
    Robinson E. Keyes, Rutland, Vt. (James T. Haugh and Ryan, Smith & Carbine, Rutland, Vt., on the brief), for defendant-appellee John G. Kissane.
    John P. Maley, Burlington, Vt. (James M. Farrell and McNamara, Fitzpatrick, Sylvester, Farrell & Maley, Burlington, Vt., on the brief), for defendants-appellees Wesley Lagrow and Roland Keenan.
    Before KAUFMAN, Chief Judge, LUMBARD and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

This appeal arises from another Vermont saga: a woman, in need of help to repair a flat tire, obtained such help from two male acquaintances whom she met in a bar; they in turn accompanied her on a full day of drinking at various bars; and toward evening, many miles from where they started, she drove her ear through a store front. Following her arrest and eventual release on a state criminal charge and later on a state civil body attachment, she brought a diversity action in the federal district court seeking damages for false imprisonment from those who caused her civil arrest and confinement.

The issue before us is the propriety of the district court’s granting defendants’ motions for directed verdicts at the close of plaintiff’s ease. At the outset, we emphasize that this is not an action to recover damages for alleged violation of plaintiff’s civil rights under 42 U.S.C. § 1983 (1970). It is a diversity action for false imprisonment in which we are required to apply, as did the district court below, the law of Vermont which has been well settled for more than a century. We affirm.

I.

The facts are simple, straightforward —and sad.

Plaintiff Dorothy A. Fleming, a 51 year old woman who was a resident and citizen of Massachusetts, was visiting her mother in Jericho, Vermont, in July 1969. Early in the morning of July 10, she had a car with a flat tire in Essex Junction. She went to a bar where, about 9 A.M., she met two male acquaintances who changed her tire. At their request, she drove them to Burlington where they visited various taverns. Later that day, she and her two acquaintances drove to St. Albans, stopping “every little while on the turnpike” for another drink. Upon arriving in St. Albans at about 6 P.M., plaintiff was “rip-roaring drunk”. In attempting to park her car, she knocked down a parking meter, hit a couple of other cars and ran her car into a store front owned by defendant Evelyn McEnany. She was arrested and confined in jail on a criminal charge arising from the accident.

On the following day, July 11, she pled guilty to the criminal charge and was fined $105 or, in the alternative, sentenced to 105 days in jail. Unable at first to pay the fine, she remained in jail pursuant to the criminal sentence for approximately one week, at the end of which she paid the criminal fine.

In the meanwhile, on July 11, she was served with a civil capias writ and a complaint seeking $2,000 for damage to the store front. Unable to post sufficient property to satisfy the $2,000 bail fixed by a magistrate pursuant to the capias, she was committed to the Franklin County Jail where she remained for a period of 20 days until her insurance company entered an appearance on her behalf on July 31 and arranged for her release.

Based on this sequence of events, plaintiff commenced a diversity action in the District Court for the District of Vermont on March 4, 1970 to recover $50,000 for false imprisonment. Her false imprisonment complaint named as defendants Evelyn McEnany, the owner of the store front who previously had sued her for damages in a Vermont state district court; John G. Kissane, Esq., the attorney for Miss McEnany who had instituted the state court action against plaintiff; Wesley Lagrow, the deputy sheriff who arrested plaintiff pursuant to the capias; and Roland Keenan, the sheriff and jail keeper in whose custody plaintiff remained while confined. All defendants are citizens of Vermont.

At the close of plaintiff’s case, Chief Judge Holden on October 16, 1972 denied her motion for a directed verdict and granted the motions for directed verdicts by each of the four defendants. This appeal is from the judgment entered upon the directed verdicts in favor of defendants.

On appeal plaintiff asserts alternative theories of liability on the part of defendants. She contends first that defendants are liable to her for damages under the Vermont law of false imprisonment because the Vermont procedure, which authorized issuance of the capias pursuant to which she was arrested and confined, violated the due process clause of the Fourteenth Amendment, as that clause has been interpreted in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), since the Vermont procedure did not provide for a judicial hearing prior to arrest. Alternatively, plaintiff contends that defendants are liable to her in tort because Sniadach, which held summary garnishment of wages to be unconstitutional, was decided by the Supreme Court one month before the issuance of the capias pursuant to which she was arrested and confined, and therefore defendants should have known that the capias they issued and executed was unconstitutional.

For the reasons below, we hold plaintiff’s contentions to be without merit.

II.

Our function in reviewing the propriety of the directed verdicts below is to determine whether there were any facts, or facts from which inferences might be drawn, which should have been sent to the jury for its determination ás to whether defendants were liable to plaintiff for false imprisonment under Vermont law. Stief v. Sexauer Manufacturing Co., 380 F.2d 453, 455 (2 Cir.), cert. denied, 389 U.S. 897 (1967). If the evidence was such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there could be but one conclusion as to the verdict that reasonable men could have reached, then direction of the verdicts was proper. See Simblest v. Maynard, 427 F.2d 1 (2 Cir. 1970).

With respect to defendant Lagrow (the deputy sheriff who arrested plaintiff) and defendant Keenan (the sheriff and jail keeper who had custody of her), there can be no doubt that verdicts were properly directed in their favor.

Under Vermont law, sheriffs and their deputies are required to receive and execute all writs delivered to them, under penalty of fine, costs and damages, unless a writ is absolutely void on its face. 12 V.S.A. §§ 696, 697 (1973); Gross v. Gates, 109 Vt. 156, 194 A. 465 (1937); Goodell v. Tower, 77 Vt. 61, 58 A. 790 (1904); Stoddard v. Tarbell, 20 Vt. 321 (1848). An officer’s inquiry as to the validity of the process to be served is limited to an examination of the instrument itself to determine that it is properly signed, properly directed and properly returnable. Stoddard v. Tarbell, supra; Churchill v. Churchill, 12 Vt. 661 (1839). In short, process which is not void on its face provides sufficient justification for the officer who serves or otherwise executes it.

In Williams v. Franzoni, 217 F.2d 533 (2 Cir. 1954), aff’g 120 F.Supp. 444 (D.Vt.1954), we affirmed an order dismissing before trial a complaint which sought to recover damages from a sheriff whose deputies had served an allegedly invalid capias. Appellant there was serving in the United States Armed Forces. He was arrested pursuant to a Vermont state court capias contrary to a federal statute which exempted servicemen from such process. He sued in the federal court, claiming that he was entitled to recover damages from the sheriff for false arrest and imprisonment. In affirming the district court’s dismissal of the complaint, Judge Chase, writing for our Court, held:

“The Vermont law applicable to the situation here presented, as shown by the decision of its highest court, makes the liability of an officer serving mesne process by an arrest pursuant to the command of the precept when, as here, the process conforms in kind to that which the court has jurisdiction to issue depend on whether there is a defect discoverable by an examination of the process itself which makes it void.” 217 F.2d at 534.

In the instant case, as in Williams, since the capias served on plaintiff constituted process which the state court had jurisdiction to issue and was valid on its face, her arrest and confinement pursuant to the writ’s command provides no basis for imposition of liability on Lagrow and Keenan for false imprisonment. See Gage v. Barnes, 11 Vt. 195 (1839); Pierson v. Gale, 8 Vt. 509 (1836).

Plaintiff argues, however, that, even though the capias pursuant to which she was arrested and confined was legal in its formal details, there existed on its face something “which would fairly warn the server that it is defective”. Williams v. Franzoni, supra, 120 F.Supp. at 445. Plaintiff contends that, if her arrest on mesne process was unconstitutional, then the capias served on her must be deemed under Vermont law to have been void on its face. Alternatively, she contends that Lagrow and Keenan had reason to know that the capias was void on its face because of the decision in Sniadach v. Family Finance Corp., supra. We find no merit in these contentions of plaintiff.

Since the Vermont state court whose process was issued had subject matter jurisdiction and jurisdiction over the parties and the capias was not defective in its formal requisites, the process cannot fairly be said to have been void on its face by reason of an allegedly unconstitutional underlying procedure which, at the time of service, had not been decided. In fact, on December 3, 1968, only seven months before plaintiff was arrested, the Vermont Supreme Court had held unanimously that the statutory procedure authorizing confinement on mesne process was constitutional. LaFlamme v. Milne, 127 Vt. 301, 248 A.2d 692 (1968) (Holden, C. J.), cert. denied, 395 U.S. 965 (1969). Furthermore, the rationale for the long established Vermont law that a capias which is valid on its face provides sufficient justification for the officer who serves it completely refutes plaintiff’s arguments. As we recognized in Williams v. Franzoni, supra, 217 F.2d at 534, it is a basic precept of Vermont law that “‘[pjerilous, indeed, would be the condition of officers, if they were bound to look beyond their process, and to ascertain whether there was not some extrinsic matter to render it void, before they could proceed to execute it with safety’ ”, quoting from Gage v. Barnes, supra, 11 Vt. at 196. See Pierson v. Gale, supra.

We hold that the district court properly directed verdicts in favor of defendants Lagrow and Keenan.

III.

With respect to defendant Kissane (the attorney who issued the capias) and defendant McEnany (his client on whose behalf the state court action was instituted), the propriety of the directed verdicts in their favor rests on a different footing. In addition to the considerations discussed above in connection with plaintiff’s false imprisonment claims against Lagrow and Keenan, an essential element of her claims against Kissane and McEnany was proof that they acted in bad faith. Plaintiff did not introduce a scintilla of evidence of bad faith on the part of the attorney or his client. Indeed the evidence was that they acted in good faith. We conclude that there was no basis in the evidence for holding Kissane and Mc-Enany liable for false imprisonment.

Essentially plaintiff contends that she made out a case against Kissane and McEnany for false imprisonment because the statutory procedure pursuant to which she was arrested and confined was unconstitutional. She claims that the procedure was rendered unconstitutional by Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and was therefore void at the time of her arrest and confinement. She contends that under Vermont law imprisonment pursuant to unlawful process is tortious whether or not the person responsible knew or should have known that arrest and confinement pursuant thereto was unconstitutional. Our careful examination of Vermont law satisfies us that, even if the procedure pursuant to which plaintiff was arrested and confined was unconstitutional, Kissane and McEnany could not be held liable for false imprisonment on the basis of the record before us.

Although the legal defenses afforded lawyers and clients for the issuance of a defective capias are not as broad as those which protect state officers, plaintiff’s theory that imprisonment pursuant to unlawful process is tortious whether or not the lawyer and his client who issued it knew or should have known that the process was void finds no support in Vermont law. None of the eases relied upon by plaintiff supports her contention that confinement pursuant to unconstitutional process in itself constitutes false imprisonment. Rather, the cases relied upon where liability has been imposed involved defects in particular writs which were caused by failure to follow state law and which were discoverable on the face of the writ itself or by examining the subject matter of the complaint which accompanied the writ.

Thus, in Gibson v. Holmes, 78 Vt. 110, 62 A. 11 (1905), the Vermont Supreme Court held that, where an attorney and his client caused a defendant to be imprisoned on a capias in the wrong county, both were liable for false imprisonment for failure to comply with the requirement that a defendant must be imprisoned in the same county where the case is pending. In Parker v. Roberts, 99 Vt. 219, 131 A. 21 (1925), liability was imposed on a former plaintiff who had caused a defendant to be imprisoned pursuant to a civil claim which was held to sound in contract rather than in tort, thus rendering the writ void on its face. Similarly, in Tenney v. Harvey, 63 Vt. 520, 22 A. 659 (1891), and Morrill v. Thurston, 46 Vt. 732 (1872), liability was predicated upon the fact that the particular capias issued in each case did not comply with Vermont law.

The teaching of these cases is that under Vermont law, where lawyers and their clients have been held liable for false imprisonment on the basis of a defective capias, the defects existed in the individual capias which issued—not in the statutory procedure as a whole—and were discoverable on the face of the writ itself or from the subject matter of the accompanying complaint. So far as we have been able to ascertain, in every case which has resulted in a recovery for false imprisonment, absent some form of malice or bad faith, the attorney failed to act in accordance with Vermont law in issuing the capias and could readily have acted to avoid the invalidity.

Indeed, contrary to the argument urged upon us by plaintiff, decisions of the Vermont Supreme Court hold that, in the absence of bad faith, an attorney, and through him his client, will not be held liable where a capias valid under state law when issued subsequently becomes invalid. Thus, in McMullin v. Erwin, 69 Vt. 338, 38 A. 62 (1897), the court held that an attorney who acted in good faith for the benefit of his client and whose “purpose was lawful, to collect a debt by legal process”, 69 Vt. at 342, 38 A. at 63, was not liable for false imprisonment where he issued a lawful capias which, after delivery to the sheriff, was altered and made illegal without the attorney’s knowledge. Similarly, in Aldrich v. Weeks, 62 Vt. 89, 19 A. 115 (1889), the court held that where the writ was not defective when issued nor when the original arrest was made, and where the attorney and client acted in good faith, they could not be held liable for false imprisonment, although the writ became defective before the sheriff rearrested the plaintiff.

Plaintiff further contends that, even if under Vermont law Kissane and Mc-Enany could not be held liable for false imprisonment although the statute pursuant to which she was arrested later was held to be unconstitutional, the court erred in directing verdicts against her because it ignored what she claims was bad faith on the part of Kissane and McEnany. She contends that their conduct amounted to bad faith as a matter of law because they ignored Sniadach v. Family Finance Corp., supra. If they had studied this decision, so her argument goes, they would have concluded that the Vermont statutory capias procedure was unconstitutional. We disagree.

In issuing the capias, Kissane relied on a recent decision of the Vermont Supreme Court. Only seven months earlier, as stated above,' that court in LaFlamme v. Milne, supra, had held that the statutory procedure which authorized arrest and confinement on mesne process was constitutional. Moreover, the court emphasized that arrest on mesne process “is deeply embedded in the common law” and was adopted “by statute in the early history of the State.” 127 Vt. at 302, 248 A.2d at 693. We hold that Kissane, and through him his client McEnany, in relying on this recent decision of the Vermont Supreme Court, cannot be said to have acted in bad faith under Vermont law. As there was no evidence that Kissane was aware of the decision approximately one month earlier by the United States Supreme Court in Sniadach, we decline to hold that this constituted bad faith under Vermont law. Indeed, the relevance of Kissane’s alleged lack of awareness of Sniadach upon the issue of his good faith is highly doubtful at best. At the time it was decided, Sniadach did not automatically invalidate the Vermont capias procedure. Sniadach involved a different statute in a different state. And of course during the ensuing years the full impact of its holding has been the subject of hotly contested litigation.

We hold that the district court properly directed verdicts in favor of defendants Kissane and McEnany, as well as in favor of defendants Lagrow and Keenan.

Affirmed.

KAUFMAN, Chief Judge

(dissenting in part) :

The majority opinion neatly avoids examination of the constitutionality of Vermont’s body attachment statute, repealed on March 29, 1972, by finding that, under Vermont law, all of the appellees were accorded a qualified privilege of good faith conduct in defense to a suit for false imprisonment. Although I appreciate the doctrine of judicial restraint which counsels against needless resolution of constitutional questions, I cannot subscribe to the alternative course chosen by the majority—an expansion of the applicability of the qualified privilege wholly without support in general principles of tort law, in policy considerations governing liability or, most importantly, in the law of Vermont.

The common law tort of false imprisonment ordinarily requires proof merely that the defendant acted intentionally, not that he was motivated by malice or bad faith. W. Prosser, Law of Torts (3d ed. 1964) at 61. Where, as in this case, the false imprisonment is the product of a false arrest, however, a substantial number of jurisdictions recognize a qualified privilege of good faith conduct for an arresting officer. F. Harper and F. James, The Law of Torts (1956) at 269-270. Vermont is one of these. Williams v. Franzoni, 217 F.2d 533 (2d Cir. 1954), and cases cited therein.

The policy behind this limitation of liability is sound. The Supreme Court, in holding the good faith privilege applicable to a § 1983 action based on an unconstitutional arrest, gave this rationale:

A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.

Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). In this case, both Lagrow and Keenan were under a statutory duty to enforce an apparently valid capias writ. I agree with the majority, therefore, that both properly were accorded a good faith privilege as a defense to Mrs. Fleming’s claim of false imprisonment.

Similar considerations of public policy, however, do not apply to Kissane or McEnany. Neither Mrs. McEnany nor her attorney, Kissane, was under any statutory duty or obligation to seek or issue the capias writ eventuating in the imprisonment of Mrs. Fleming. Their course was wholly a discretionary one, guided inevitably by an adversary’s desire for victory with its spoils. If they erred in their choice of weaponry, albeit without deliberation, why should they not suffer the consequences rather than Mrs. Fleming—who after all was deprived of her liberty? To be sure, their good faith will carry weight in mitigation of damages but it should not be an absolute bar to recovery.

Vermont law, moreover, subscribes to this dichotomous classification between public officers on the one hand and private parties on the other, in determining liability in actions for false imprisonment. In a prior excursion into the intricacies of Vermont false imprisonment law, this Court commented:

The decisions of the Supreme Court of Vermont in cases raising issues as to false arrest and imprisonment on mesne process fall into two distinct classifications: those dealing with suits brought against a party at whose instance the process was issued and those brought against the officer who served the process.

Williams v. Franzoni, supra, 217 F.2d at 534. The majority recognizes this distinction, noting that “the legal defenses afforded lawyers and clients for the issuance of a defective capias are not as broad as those which protect state officers.” Yet, my brothers fail to suggest in what manner Vermont law, or indeed the general principles governing the law of intentional torts, further parse the qualified privilege for good faith conduct. I submit that no such sub-classifications exist: the good faith privilege either attaches or it does not.

The cases cited by the majority do not persuade me to the contrary. McMullen v. Erwin, 69 Vt. 338, 38 A. 62 (1897), exonerated the attorney for the complainant in a false imprisonment suit arising out of a defective capias writ because there was evidence in the record that someone had altered the writ after it had been issued by the attorney. Accordingly, the court held that the attorney, who was found to have originally issued a valid writ, could not be liable unless there was proof of complicity between the attorney and the individual who had subsequently tampered with the capias. In the instant case, however, if the Vermont capias writ statute were to be held unconstitutional, the writ issued by Kissane would have been invalid ab initio. McMullen, therefore, is inapposite.

Nor do I find Aldrich v. Weeks, 62 Vt. 89, 19 A. 115 (1889) particularly relevant here, for again, the court relied on the validity of the capias when issued by the attorney to exonerate him and his client from liability. Appellee Kissane cites Pierson v. Gale, 8 Vt. 508 (1836) to support his contention that the attorney issuing the writ has a good faith privilege in defense to a claim of false imprisonment. A careful reading of the case, however, reveals only that the court recognized a good faith privilege for judicial officers where the court had issued the capias writ. By way of contrast and not of little significance is that Kissane rather than an officer of the court issued the writ in this case. As the attorney for the complainant, he can hardly be considered a neutral decisionmaker whose role deserves the protection accorded judicial officers. Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 552-556 and n. 25, 92 S.Ct. 1983 (1972).

Because I conclude that Vermont law does not accord a good faith privilege to private parties in a suit for false imprisonment, I am constrained to reach the question of the constitutional validity of the Vermont statutory provisions which authorized summary prejudgment body attachment. I must confess that I find my discussion of the question of constitutionality to border on the rhetorical, for I consider the archaic and uncivilized practice utilized here transparently unconstitutional.

Several decisions of the Supreme Court confirm my belief. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), for example, the Court was called upon to consider the validity of statutory procedures which authorized the seizure or replevin of property without prior notice or hearing. After a thorough examination of the Pennsylvania and Florida summary pre judgment replevin statutes, the Court concluded that neither was “narrowly drawn to meet any . . . unusual condition. Sniadach v. Family Finance Corp., supra, 395 U.S. at 339, 89 S.Ct. 1820.” Id. 407 U.S. at 93, 92 S.Ct. at 2001. Accordingly both statutes were found to run afoul of the Due Process Clause of the Fourteenth Amendment.

Application of the Sniadach test to the Vermont statute before us produces the same result. Although there may be “extraordinary situations” which justify departure from traditional notions of due process, Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Court, in Fuentes, pointedly emphasized that such situations, “must be truly unusual.” Fuentes v. Shevin, supra, 407 U.S. at 90, 92 S.Ct. 1983. Specifically, the Court rejected any attempt to equate statutes which serve important governmental or general public interests with those, like the Pennsylvania and Florida replevin statutes, which permit immediate and summary deprivation “when no more than private gain is directly at stake.” Id., at 92, 92 S.Ct. at 2000. Considering the raison d’etre behind Vermont’s summary pre judgment body attachment procedure—-to ensure by trading the defendant’s freedom for bail the collectability of a private civil judgment should the complainant prove successful—it hardly stands on loftier footing than the replevin statutes examined in Fuentes.

Nor could the Vermont statute before us be considered “narrowly drawn.” Indeed, the impermissibly broad contours of the statutes in Fuentes are, if anything, surpassed by Vermont’s capias writ procedure. Like the statutes condemned in Fuentes, the Vermont statute permitted the complainant’s attorney to issue the writ without application to any judicial officer. Accordingly, there was no intervening state official to assess the merits of the underlying claim the attorney was asserting or the need for the drastic action he was implementing. Vermont, moreover, did not even require the complainant to post a security bond, a minimal safeguard against abuse present in the statutes struck down in Fuentes-, or did the body seized have less value than the merchandise replevied?

There is, finally, one characteristic of the Vermont statute that to my mind dispels any question about its constitutionality—the extent of the deprivation it authorized. Unlike wage garnishment in Wisconsin or replevin in Florida and Pennsylvania, body attachment in Vermont struck at the very core of liberty by infringing upon personal freedom. Although the importance of property rights is not to be downgraded, see Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), the right of an individual to be free in his person from governmental interference remains paramount. The Vermont capias writ procedure simply did not provide the process due when the deprivation of a right as sacred as liberty was involved.

Appellees have argued that even were we now to conclude that the Vermont statute was unconstitutional, that finding should not be applied retroactively to render their conduct in 1969 unlawful. This contention has little merit in light of the Supreme Court’s decision in Pierson v. Ray, supra.

In Pierson, white and black ministers brought suit against Jackson, Mississippi police and a justice of the peace under 42 U.S.C. § 1983, and for the common law torts of false arrest and imprisonment. Their claims arose out of their arrest in 1961 pursuant to a statute which was not declared unconstitutional by the Supreme Court until 1965. Although there was dissent among the justices concerning the scope of privilege properly accorded to judicial officers, there was no dispute over whether the plaintiff-ministers had established a prima facie ease. Thus, a unanimous Court necessarily accepted the principle that lawful justification could not be said to exist for acts pursuant to a statute subsequently found unconstitutional.

The Pierson rationale, therefore, squarely supports Mrs. Fleming’s prima facie claim for false imprisonment. The state officials, Lagrow and Keenan, under a statutory duty to enforce the capias writ, have properly raised the qualified privilege of good faith conduct. But, a similar privilege should not and does not extend under Vermont law to. private parties, acting solely in their own interests. Accordingly, I would reverse the directed verdict as to Mc-Enany and Kissane and remand for a new trial.

      . The process here involved has been referred to variously as a “civil body attachment”, a “civil capias writ” and “mesne process”. In the interest of brevity, we refer to it in this opinion as a “capias”.
      The statutes pursuant to which plaintiff was arrested and confined, 12 V.S.A. §§ 655, 3521 et seq. (1959), liad long been embedded in Vermont law. LaFlamme v. Milne, 127 Vt. 301, 302, 248 A.2d 692, 693 (1968), cert. denied, 395 U.S. 965 (1969). Under this procedure a person arrested pursuant to a capias cannot be committed to jail if he or some other person furnishes sufficient security to the arresting officer for the amount of the attachment and, unless he waives the right, before he has appeared before a magistrate for the purpose of applying for reduction of the attachment. Pending such a hearing, the arrested person may be committed to jail. 12 V.S.A. § 3573 (1959). See Thurston v. Leno, 124 Vt. 298, 204 A.2d 106 (1964). The procedure authorizing arrest pursuant to a capias was repealed effective March 29, 1972. Vermont Public Acts of 1971, No. 185 (Adj.Sess.) § 237.

      . Although plaintiff was confined to jail for 20 days, not all of that time was pursuant to the capias. As indicated above, the first week of her confinement was pursuant to her criminal arrest and the criminal sentence imposed.

      . The civil suit against idaintiff brought to recover $2000 for damage to the store front, and in which the capias was issued, was commenced in the Vermont District Court, City of St. Albans, County of Franklin. To avoid confusion with the instant diversity action brought by plaintiff in the United States District Court for the District of Vermont, we refer to the former as the “state court action” and to the latter as the “federal court action.”

      . We reject plaintiff’s contention that La-grow and Keenan are not equally protected by Vermont law. The justification provided Vermont officers applies equally to Lagrow as deputy sheriff and to Keenan as sheriff and jail keeper. The fact that the capias was not void on its face immunizes both from liability to plaintiff for false imprisonment. Parker v. Roberts, 99 Vt. 219, 131 A. 21 (1925) ; Kidder v. Barker, 18 Vt. 434 (1846).

      . See, e. g., Fuentes v. Shevin, 407 U.S. 67 (1972) ; Lynch v. Household Finance Corp., 360 F.Supp. 720 (D.Conn.1973), on remand from Supreme Court, 405 U.S. 538 (1972) ; Hernandez v. European Anto Collision, Inc., 487 F.2d 378 (2 Cir. 1973) ; Mitchell v. W. T. Grant Co., 263 La. 627, 269 So.2d 186 (1972), cert. granted, 411 U.S. 981 (1973).

      . There is no doubt that Vermont’s body attachment practice constituted a summary prejudgment procedure. Although Mrs. Fleming was brought before a magistrate prior to incarceration, her liberty was certainly invaded upon her arrest. The hearing she had, moreover, was restricted solely to setting bail. The Vermont statute, 12 V.S.A. § 3573(a), did not require inquiry into the underlying merits of the predicate claim, and the magistrate in this case did not go beyond his duty under the statute.

      . Although the majority suggests that the import of Sniadach is still unclear, its unmistakable thrust was not lost upon the two able judges, the late Chief Judge Gibson and the late Judge Leddy, serving on the Vermont District Court at the time the Sniadach decision was announced. On September 24, 1969, the United States District Court for the District of Vermont adopted Local Rule 5, “in view of the United States Supreme Court ruling in Sniadach,” which states in pertinent part:
      When a civil suit is filed, and the plaintiff seeks to invoke trustee process, attachment by seizure, or body attachment, a hearing for the purpose of establishing the validity of the underlying claim against the defendant and the equitable necessity of the process sought shall be held before a U. S. District Judge for the District of Vermont on or before ten days after service of the summons.
      No disclosure by a Trustee, seizure of property or seizure of body shall be made until tile probable validity of the underlying claim against the defendant and the equitable necessity of the process sought are established.
      Nor was the impact of Sniadach and its progeny on the constitutionality of Vermont’s body attachment practice seriously doubted by the revisers of the Vermont Rules of Civil Procedure. The Reporter’s Notes for Rule 4.3, Vt.R.Civ.P., which abolished all forms of civil arrest before final judgment except for contempt of court and for failure to obey a subpoena read in relevant part:
      While the Court has held civil arrest not in violation of the due process clause, LaFlamme v. Milne, 127 Vt. 301, 248 A.2d 692 (1968), cert. denied 395 U.S. 965 [89 S.Ct. 2111, 23 L.Ed.2d 751], 396 U.S. 915 (1969), the remedy is within the scope of Sniadacli v. Family Finance Corp. of Bay View, 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349) (1969), which made clear that provisional remedies depriving defendant of property even temporarily prior to adjudication on the merits of the claim against him will be permitted only as a matter of urgent necessity.
      There is every reason to suppose that the United States Supreme Court would restrict even more severely or forbid altogether a remedy that is a deprivation of personal liberty.

      . It should be noted that body attachment cannot find justification as the singular means by which the state court’s jurisdiction can be secured. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1920). Although foreign property attachment may serve this purpose as a necessary substitute for in personam jurisdiction, it hardly need be stated that if an individual can be served with a capias writ, then lie can be served as well with the complaint, thereby establishing in personam jurisdiction.