text:
    Donald Lee LAYER, # 153-536 v. Howard N. LYLES.
    Civ. No. K-81-2849.
    United States District Court, D. Maryland.
    Oct. 1, 1984.

      E. Clinton Bamberger, Jr., Lynne A. Battaglia, Richard L. North and Karen Czapanskiy, Baltimore, Md., for plaintiff.
    Stephen H. Sachs, Atty. Gen. of Md., and Stephanie J. Lane, Asst. Atty. Gen., Baltimore, Md., for defendant.
   FRANK A. KAUFMAN, Chief Judge.

Layer, seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254, challenges his conviction on April 30, 1980 in the Circuit Court for Wicomico County, Maryland for robbery and use of a handgun. Judge Alfred T. Truitt, Jr., who presided during Layer’s jury trial, sentenced Layer to a ten-year sentence for the robbery charge and to a five-year concurrent sentence for the handgun violation. Originally, plaintiff stated two bases for relief in this case: (1) ineffective representation by his trial counsel and (2) denial of his Fifth and Sixth Amendment rights because Judge Truitt had both prosecuted and defended Layer in prior criminal cases involving offenses unrelated to Layer’s 1980 convictions, that is, they were unrelated except to the extent they constituted background factual information presumably relevant and material to the sentencing decisions made by Judge Truitt. After Layer instituted the within case, this court informed plaintiff that he had seemingly not exhausted his state remedies with regard to his ineffective-assistance-of-counsel claim, as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In response, plaintiff’s counsel informed this court that plaintiff desired to press his contentions immediately in this case with regard to Judge Truitt’s previous prosecution and representation of him and that Layer understood “that by pursuing federal habeas relief now, he will be waiving the right to pursue any future federal habeas claim related to this case.” Accordingly, the sole issue herein is whether a judge is required on Fifth or Sixth Amendment grounds to disqualify himself in a case involving a defendant whom he has both prosecuted and represented prior to going on the bench.

The relevant facts are not in dispute. Plaintiff was convicted of robbery in the Circuit Court for Wicomico County, Maryland in 1966. On June 3, 1975, plaintiff was found not guilty of escape after a trial in the Circuit Court for Wicomico County, Maryland. The prosecutor in the 1966 ease and the defense attorney in the 1975 case were the same person, namely, Alfred T. Truitt, Jr., who subsequently became a judge of the Circuit Court for Wicomico County and presided as the judge in plaintiffs 1980 jury trial. In the course of sentencing Layer, the following colloquy occurred between Judge Truitt and Layer:

THE COURT: Are these the only two convictions you have, ’72 and ’71?
THE DEFENDANT: As far as jail or something like that. Maybe an assault charge or something like that.
THE COURT: Well, the jury has decided you did it, and this is your second offense of robbery.
THE DEFENDANT: Well, yes.
THE COURT: I don’t have much patience with robbery. Is there anything further you wish to tell me?
THE DEFENDANT: I would like to have the opportunity to try to rehabilitate myself.
THE COURT: Where you do work?
THE DEFENDANT: For John Hochsmouth, down in Mardela.
THE COURT: Farming. You work the crops?
THE DEFENDANT: Yes, sir.
THE COURT: You weren’t working in November, I take it?
THE DEFENDANT: No, I happened to have been down in North Carolina and came back up here.
THE COURT: Where are you from? Are you from this area?
THE DEFENDANT: Right here in Salisbury.
THE COURT: I represented you in the past.
THE DEFENDANT: Yes, sir.
THE COURT: I thought I did.
All right, if there is nothing further, you may say, Mr. Clerk, under the second count the sentence of the Court is that Donald Lee Layer is to be incarcerated in the custody of the Commissioner of Corrections for a period of 10 years

Judge Truitt apparently first recalled his prior contacts with Layer during the sentencing process. Neither plaintiff nor his counsel raised, during the sentencing proceeding, any question or made any objection to Judge Truitt’s continued participation in the case. On the other hand, the judge did not ask whether the defendant desired him to recuse himself or allude to any possibility that he might recuse himself as the judge. In addition, the record does not disclose whether plaintiff had any recollection of his prior contact with Judge Truitt before Judge Truitt recognized plaintiff and, if so, whether plaintiff first so recalled before, during or after trial. Additionally, the record does not reveal whether plaintiff informed his trial counsel of what he remembered in that regard before Judge Truitt’s above-quoted statement on the record and, if so, when plaintiff so informed his counsel.

In any event, plaintiff first complained in any court proceeding concerning Judge Truitt’s participation in the case during plaintiff's appeal from his conviction in Judge Truitt’s court. The Court of Special Appeals of Maryland, in the course of affirming plaintiff’s conviction in a per curiam opinion, rejected all of plaintiff’s contentions. Subsequently, plaintiff’s petition for certiorari review by the Court of Appeals of Maryland was denied. Plaintiff thereafter unsuccessfully sought habeas corpus relief in the Circuit Court for Wicomico County, Maryland. Plaintiff at no time sought relief under Maryland’s Post Conviction Procedure Act. However, since plaintiff did raise the issue of Judge Truitt’s prior prosecution and representation of him on direct appeal, plaintiff did not need again to do so in a Post Conviction Procedure Act proceeding. If plaintiff had not raised the issue on direct appeal, he would be required to utilize the Maryland post-conviction route before this court could reach the merits of the issue herein since plaintiffs use of Maryland’s habeas corpus procedure did not, without use of the Post Conviction Procedure Act, exhaust plaintiff’s state remedies. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n. 1 (4th Cir. 1971); see Hunt v. Warden, 335 F.2d 936, 943 (4th Cir.1964).

The core of plaintiff’s position is that when Judge Truitt noted his recognition of plaintiff before sentencing him, Judge Truitt, without more, should have disqualified himself. To begin with, plaintiff asserts a denial of his due process right to an impartial judge at all phases of trial, including sentencing. Plaintiff contends that, even in the absence of any actual bias, prejudice or hostility on the part of Judge Truitt, and no such bias, prejudice or hostility has been shown or even indicated, there is sufficient risk of the same, under the circumstances, to entitle plaintiff, as a matter of due process, to be resentenced by another state court judge. See, as to that form of relief in slightly different contexts, Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983), on remand, 718 F.2d 277 (8th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984); Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir.1981).

Due process requires that a criminal defendant be tried “by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing.” Ungar v. Sarafite, 376 U.S. 575, 584, 84 5. Ct. 841, 846, 11 L.Ed.2d 921 (1964) (White J.).

Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (Black, J.).

In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), the Supreme Court reversed liquor law convictions handed down by the mayor of a town acting and sitting as a judge. In Turney, the mayor received in his personal capacity a portion of the fees and costs assessed by him against convicted violators. “But no fees or costs in such cases are paid him [the mayor] except by the defendant if convicted. There is, therefore, no way by which the mayor may be paid for his service as judge, if he does not convict those who are brought before him ____” Id. at 520, 47 S.Ct. at 440. On behalf of a unanimous Court, Chief Justice Taft wrote:

[I]t certainly violates the 14th Amendment and deprives a defendant in a criminal ease of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.

Id. at 523, 47 S.Ct. at 441.

In Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972), the Supreme Court reversed a defendant’s conviction for traffic infractions in a case in which the mayor-judge had responsibility for revenue production and where traffic fines constituted a major source of such revenues. Justice Brennan, writing for a 7-2 majority, stated: “Although ‘the mere union of the executive power and the judicial power in him [the mayor-judge] can not be said to violate due process of law.’ ... the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused____’ ” Id. at 60, 93 S.Ct. at 83, quoting from Tumey v. Ohio, supra at 532-34, 47 S.Ct. at 444.

In In re Murchison, supra at 136, 75 S.Ct. at 625, Justice Black concluded that the due process requirement of an impartial tribunal was violated where a Michigan state judge had “conducted the secret ‘one-man grand jury’ proceedings” (footnote omitted), and later convicted two witnesses of contempt for the same events which had taken place before him in his “grand jury” capacity. Noting that “[a]s a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his ‘grand-jury’ secret session,” id. at 138, 75 S.Ct. at 626, Justice Black required that the contempt charges be tried before a different judge. In Ungar v. Sarafite, supra, the Supreme Court held that a New York state trial judge was not constitutionally disqualified from presiding over contempt proceedings by virtue of the judge having sat during the original trial. Justice White, in distinguishing earlier decisions of the Supreme Court, wrote that “this record does not leave us with an abiding impression that the trial judge permitted himself to become personally embroiled with petitioner,” id. at 585, 84 S.Ct. at 847, and noted that the judge’s “characterization of the petitioner’s conduct as contemptuous, disorderly, and malingering was at most a declaration of a charge against the petitioner, based on the judge’s observations, which, without more, was not a constitutionally disqualifying prejudgment of guilt____" Id. at 586-87, 84 S.Ct. at 848-49. Justice White concluded: “In these circumstances, we cannot say there was bias, or such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.” Id. at 588, 84 S.Ct. at 849.

In Howell v. Jones, 516 F.2d 53, 57 (5th Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1116, 47 L.Ed.2d 321 (1976), plaintiff complained “that because of ex parte communications between the judge who originally cited him for contempt and the judge who eventually tried him on [that] charge, he was denied a trial by an impartial tribunal.” In finding “no error which rises to the ... level required for habeas corpus relief,” Judge Roney wrote:

These communications [the ones between the two judges] ... involved trial procedure and there is no evidence that they had any effect on the trial judge’s determination of the merits of the case. The legal determination that Howell’s conduct was contemptuous appears only to have been made from information learned at the hearing, [citation omitted]
The leading cases cited by Howell, Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), are different from the case sub judice. They involved situations where there was actually some incentive to find one way or the other, i.e., financial considerations (Ward & Tumey) or previous participation by the trying judge in the proceedings at which the contempt occurred (Murchison). In this case, no such incentive is evident, and the record does not otherwise support Howell’s contention that he was denied a trial by an impartial tribunal.

Id. at 57-58.

In Margoles v. Johns, 660 F.2d 291, 295-97 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982), the Seventh Circuit, in a per curiam opinion, adopted the district court’s opinion. In the latter, Judge Evans wrote that the collateral challenge “raised by plaintiff requires that he demonstrate not that there is room to question whether Judge Warren should have recused himself but, rather, that Judge Warren in fact was so biased or prejudiced against plaintiff that the proceeding was unfair.” Id. at 295 (emphasis in original). In Margóles, the plaintiff collaterally challenged a civil judgment entered by Judge Warren in the Eastern District of Wisconsin pursuant to Federal Civil Rule 60(b), alleging that Judge Warren was biased because, prior to his appointment to the bench, he had served as Attorney General during a period when plaintiff’s fitness to practice medicine was investigated. Rejecting that challenge, Judge Evans stated:

While I agree with the principle stated in plaintiff’s brief that “due process requires that ‘a neutral and detached judge’ preside over judicial proceedings”, the basic contention which appears to permeate the plaintiff’s entire argument is that the judgment is voidable upon a showing of the “appearance” of partiality or upon facts which might cause a “reasonable man” to question Judge Warren’s impartiality. While such a presentation, if actually supported by the record, might cause a judge to recuse himself under 28 U.S.C. § 455, or justify reversal on appeal of a refusal to, it would not mandate a finding that a judgment, on a collateral attack such as this, should be declared void.
A litigant is denied the fundamental fairness to which he is constitutionally entitled if the judge of his case is unfairly biased against him. However, a litigant is not denied due process by either the “appearance” of partiality or by circumstances which might lead one to speculate as to a judge’s impartiality. A litigant is denied due process if he is in fact treated unfairly.

Id. at 296 (emphasis in original).

In Jenkins v. Bordenkircher, 611 F.2d 162, 166-67 (6th Cir.1979), cert. denied, 446 U.S. 943, 100 S.Ct. 2169, 64 L.Ed.2d 798 (1980), plaintiff, a state prisoner, filed a federal habeas corpus petition alleging that the state judge, prior to going on the bench, had prosecuted plaintiff on five different occasions in connection with matters unrelated to the conviction plaintiff was challenging. Rejecting plaintiff’s due process challenge, Judge Lively wrote:

We have found no habeas corpus case which holds that it is a denial of due process for a judge to preside over a jury trial in a criminal case where the judge, as a prosecutor, had previously been involved in proceedings against the defendant in entirely unrelated cases. Though this circuit does not appear to have considered the question, the Fifth Circuit has denied habeas corpus in at least two cases where it was contended that a constitutional violation occurred because a judge who had been involved previously in the prosecution of a defendant for unrelated matters presided at that defendant’s subsequent trial.

Id. at 166 (citations omitted). Judge Lively noted that all of the state judge’s prior contacts with plaintiff “occurred between five and thirteen years before the trial of the present case.” Id. at 166. In the case at bar, Judge Truitt’s two prior contacts with plaintiff took place five to fourteen years before he presided and sentenced in the proceedings in issue herein. However, in this case, the latter of those two contacts was as defense attorney for plaintiff herein, not as prosecutor.

In Jenkins, Judge Lively concluded: Absent some showing of hostility or prejudgment we will not assume that a state court judge would not be able to give a defendant a fair trial solely because of his earlier contacts with the defendant in prosecuting totally unrelated charges.

Id. at 166. Judge Lively also wrote:

This Court is unwilling to adopt a per se rule that a judge may never preside at a trial where he has had previous contact with the defendant as a prosecutor in totally unrelated criminal charges.

Id. at 167.

In Jenkins, Judge Lively found an absence of “hostility, bias or prejudgment.” Id. at 166.

In Barry v. United States, 528 F.2d 1094, 1099 (7th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976), Judge Adams, sitting by designation, affirmed Judge McGarr’s denial of plaintiffs petition under 28 U.S.C. § 2255 and concluded that Judge Bauer, the trial judge, was not subject to mandatory disqualification under the federal disqualification statute, 28 U.S.C. § 455, in a case in which informal investigation had begun during Judge Bauer’s tenure as a United States Attorney before he became a United States District Judge. “[T]he investigation had formally commenced ... several months after Judge Bauer had left the office of the U.S. Attorney.” Id. at 1096. “Nor did Judge Bauer’s decision to preside at the trial lead to a constitutional violation____ The conflicts of interest present in [the Supreme Court’s decisions] in which the [due process] standard was enunciated were ... much more extreme than the lack of impartiality suggested here____ [T]he considerations present in a collateral attack on a conviction, such as that here, may differ from those in a direct appeal.” Id. at 1099-1100 & n. 21.

In Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969), the Fifth Circuit, in a per curiam opinion, denied habeas corpus relief sought by petitioner, inter alia, because the state trial judge had previously prosecuted the convicted defendant for a prior crime. In Murphy, in which the habeas- corpus petitioner was convicted in a Texas court of “felony theft as a recidivist,” id. at 99, Judge Ingraham, in the district court, wrote that “petitioner’s ... contention, that the trial judge was district attorney at the time of one of his convictions alleged for- enhancement, is not a sufficient ground for disqualification and does not present a question cognizable in habeas corpus.” Id. at 100. See also United States v. Maroney, 280 F.Supp. 277, 279 (W.D.Pa.1968); Moultrie v. State, 584 S.W.2d 217, 219 (Tenn.Ct. of Crim. Appeals 1978).

In Mendenhall v. Hopper, 453 F.Supp. 977, 983 (S.D.Ga.1978), aff'd without published opinion, 591 F.2d 1342 (5th Cir. 1979), the petitioner, who had pled guilty to two counts of murder in the first degree and one count of aggravated assault in a Georgia court, sought federal habeas corpus relief. The state court trial judge who sentenced Mendenhall had “while in private practice, conferred with Mr. Mendenhall and his wife concerning the possibility of handling the defense”, id. at 979 n. 1, in the very case in which the trial judge later presided, but had not entered into an attorney-client relationship with the plaintiff. Indeed, the attorney (later the trial judge) “made no inquiry as to the facts surrounding the charges but inquired only as to Mendenhall’s financial status ... [and] declined to take the case ... [telling] Mrs. Mendenhall that her husband ‘was a sick man and needed treatment.’ ” Id. at 979. Mendenhall was represented in the trial court by another attorney who moved for and obtained psychiatric examination of Mendenhall prior to sentencing. During the state court habeas corpus proceeding, the prosecutor, who had handled the arraignment and the sentencing in the trial court, testified that he listened to “a conversation between Judge Henley and [Mendenhall’s trial counsel] in which Judge Henley said he ‘wouldn’t have touched the case for less than $15,000.00.’ ” Id. at 980-81.

In the federal habeas corpus proceeding, Mendenhall sought relief on a number of grounds including, inter alia, the lack of voluntariness of his plea, lack of effective assistance of trial counsel, and “failure of the Superior Court judge who accepted the plea and imposed punishment to disqualify himself ____” The last said attack was premised upon a claim of violation of plaintiff’s “right of due process”. Id. at 979.

In the § 2254 case instituted by Mendenhall, Judge Lawrence granted the writ, holding petitioner’s guilty plea “was not entered voluntarily, knowingly, and intelligently”, id. at 983, and that “due process and adequate representation ... were lacking ____” Id. at 987. The lack of due process pertained to the failure of the state trial court to conform to “federal constitutional standards” during the arraignment. Accordingly, Judge Lawrence’s obsérvations with regard to Mendenhall’s other contentions would appear to be dicta. Nevertheless, Judge Lawrence’s statements concerning the recusal issue are instructive:

The failure of a sentencing judge to disqualify himself sua sponte may not, without more, reach federal constitutional dimension requiring habeas relief under 28 U.S.C. § 2254. I have found no case that clearly holds that failure to recuse is a ground for such relief. In a number of decisions federal courts have found that there was no basis in fact for the state judge to disqualify himself and thereby have avoided the question of the right to habeas relief in the event the grounds for recusal were valid____ These cases implicitly support the view that failure by a judge to disqualify himself which serves to deprive the defendant of an unbiased trier of fact is a denial of due process____

Id. at 983-84. Judge Lawrence added that Judge Henley’s “good faith ... is not questioned ____” Id. at 984.

The case law rather clearly teaches that in the absence, as in this case, of any bias, prejudice or hostility on the part of the trial judge, disqualification is not required as a matter of due process simply because the trial judge has had prior contacts with a defendant as prosecutor in an unrelated criminal case. The ease law, however, as Judge Lawrence suggested (Mendenhall at 983), provides little or no instruction when the state judge, handling jury trial and sentencing, has acted as defense counsel in a prior unrelated criminal case. Judge Adams in Barry, supra at 1150 n. 21, highlights the need to keep always in mind that habeas corpus relief is collateral in nature and may only be granted when federal constitutional rights have been violated. In that context, constitutional due process requirements would not appear to be violated by the participation of a state trial judge in sentencing a defendant in a criminal case unrelated to the prior case in which the judge, before going on the bench, acted as counsel for the defendant, in the total absence of any bias, prejudice or hostility on the part of the trial judge. That is so even though this court, in a non-constitutional context, shares Judge Lawrence’s concern about the appearance of impropriety.

There remains herein the Sixth Amendment challenge which Layer has stated. There are several possible bases for concern in the context of the Sixth Amendment. For one thing, if a defendant in any criminal case knows that he may some day in the future, in another criminal case, be sentenced by his present attorney, that knowledge may have a chilling effect on his willingness to communicate fully with his attorney. Further, there is the problem caused by the fact that the information which the trial judge has gained as an attorney in the prior case may in fact be considered by him as a judge in sentencing the defendant in the later case.

In Campbell v. State of Arkansas, 281 Ark. 13, 660 S.W.2d 926 (Ark.1983), cert. denied, — U.S. —, 104 S.Ct. 1424, 79 L.Ed.2d 748 (1984), the petitioner, seeking collateral post-conviction relief, had been sentenced to'twenty years, with five years suspended, for four prior felony convictions. The majority decision of the Supreme Court of Arkansas in Campbell’s appeal, from denial below of her quest for post-conviction relief, noted that the trial judge “knew of her extensive criminal background” (at 927), having “previously represented Campbell in some criminal matters. He recognized her just as the hearing began and offered to disqualify” himself. Id. at 928. The majority opinion sets forth the following excerpt from the sentencing proceedings:

THE COURT:
Mr. Simpson, [Defense Counsel] I didn’t recognize Ms. Campbell until she walked up here. I used to represent Ms. Campbell. Do you have any objections to me entering this plea? Is it a plea?
DEFENSE ATTORNEY:
She is going to throw herself on the mercy of the Court. It’s not a negotiated plea, although there are some circumstances that she would like to make the court aware of.
THE COURT:
Okay. Ms. Campbell, I have represented you for some time and your husband, Freddie, and have some knowledge about you and your prior involvement with the law. Would you rather somebody else hear this?
DEFENDANT CAMPBELL:
No.
THE COURT:
Gentlemen, I really feel uncomfortable about it, because I am aware of Ms. Campbell’s extensive involvement with the law. I will — if you would like, I will go ahead and do what I think the system requires and try to be as honest with Louise as I can under the system; or, I will do one or the other: I will take her guilty plea and satisfy myself with this plea and transfer her to the Fifth Division for sentencing or I’ll transfer the whole thing. Talk to her Mr. Simpson, and see what she wants to do. [Emphasis added.]
DEFENSE ATTORNEY.
I discussed this with her the other day and she indicated she had no objection to me.
THE COURT:
Well, do you want me to go ahead? DEFENSE ATTORNEY:
She had no objection to you hearing it. What he’s saying is, if you want to transfer to another judge, he will do that.
DEFENDANT CAMPBELL:
No, that’s okay.

Id. at 928.

After so quoting from the sentencing transcript, Justice Hickman wrote for the majority as follows:

Campbell explicitly said she did not want Judge Lofton to recuse. Counsel for Campbell said he and Campbell had talked about this very question a day or so before and Campbell did not object to Judge Lofton hearing the case. Even if Judge Lofton should have been disqualified, Campbell was completely aware of her rights and the circumstances and chose to proceed in his court.

Id. at 928.

Justice Purtle, in single dissent, stated: The present controversy presents a classic case where a trial judge should have refused to hear the plea or to sentence the defendant because of the appearance of impropriety. Even though the appellant and her attorney both expressly agreed that the trial judge should not disqualify, it would have been better for him not to pass sentence on his former cliept. Appellant and her attorney both thought he would be at least as lenient as the plea bargain offer. They were sadly mistaken. It is not enough that a trial judge be fair and impartial; he must also appear to be such, [citation omitted]. The trial court should have voluntarily disqualified without request by the parties, [citation omitted].
The court stated at the hearing: Gentlemen, I really feel uncomfortable about it because I am aware of Ms. Campbell’s extensive involvement with the law ... I will go head and do what I think the system requires and try to be as honest with Louise as I can under the system ... I will take her guilty plea and satisfy myself with this plea and transfer her to the Fifth Division ... or I’ll transfer the whole thing.

At sentencing, the trial court said:

Ms. Campbell, it would not have made any difference whether you had accepted the state’s recommendation or not. The court would not have. So it’s academic. If you had accepted it last week, I would not have.
Ms. Campbell, you are a thief. The court has known you for a long time and we’re tired of you stealing from us. So, we’re going to put you away so we won’t have to worry about you for a while.
It is hard to keep from wondering how much information about appellant the trial judge obtained as her lawyer and how much of this went into the sentence. Only the present crime and prior convictions would have been before another judge. If the court’s relationship with the appellant was unpleasant the sentence may have been different than if the relationship had been a pleasant one. For appearance only, I think the court erred. I would remand for resentencing before another court.

Id. at 929-30.

In the within case, Judge Truitt’s representation of plaintiff in 1975 on escape charges occurred more than five years before his sentencing of plaintiff in 1980. The record reveals no reason to believe that Judge Truitt recalled any details about Layer’s past or what, if anything, Layer revealed to Judge Truitt in 1975 and, if Layer revealed anything, whether or not it was confidential information. Moreover, Layer himself has not alleged herein that Judge Truitt actually relied upon any confidential or other information which Judge Truitt learned from Layer when he (Judge Truitt) acted in 1975 as Layer’s defense attorney. The mere possibility of the existence of the kind of problem which forms the basis of the dissenting opinion in Campbell does not rise to the level of a Sixth Amendment violation. In United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 669, 66 L.Ed.2d 564 (1981), Justice White wrote that “demonstrable prejudice, or a substantial threat thereof,” must be shown before a Sixth Amendment deprivation will warrant dismissal of an indictment, stating, although in a context quite different than the one involved in this case:

Here, [defendant] has demonstrated no prejudice of any kind, either transitory or permanent, to the ability of her counsel to provide adequate representation in these criminal proceedings. There is no effect of a constitutional dimension which needs to be purged to make certain that [defendant] has been effectively represented and not unfairly convicted.

Id. at 366, 101 S.Ct. at 669. While the right of a defendant to a confidential relationship with his attorney, both at the time of the representation and thereafter, would appear to be guaranteed by the Sixth Amendment, see Martin v. Lauer, 686 F.2d 24, 32 n. 36 (D.C.Cir.1982), the mere possibility of a violation of that right — which is all that exists here — does not provide a basis for federal habeas corpus relief. An order denying such relief will accordingly be entered.

      . This court expresses its appreciation to E. Clinton Bamberger, Jr., Esq., Lynne A. Battaglia, Esq., Richard L. North, Esq. and Karen Czapanskiy, Esq., as members of the Clinical Law Program of the University of Maryland Law School who acted as counsel for plaintiff in this case at this court's request, and to Mr. Michael P. Bell and Mr. Glenn D. Solomon, law students, who aided Mr. Bamberger, Ms. Battaglia, Mr. North and Ms. Czapanskiy.

      . See Plaintiff’s post-argument memorandum in support of his within petition at 1.

      . At an early stage of this habeas corpus proceeding the State maintained that under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), plaintiff is barred from seeking federal habeas corpus relief herein with regard to the issue of Judge Truitt’s participation because plaintiff failed to make a timely objection at trial, i.e., during the sentencing proceeding or earlier, with respect thereto. As this court noted on the record — and counsel for defendant agreed — during a hearing held in open court in February, 1984 — Wainwright presents no bar here because the Court of Special Appeals of Maryland refused to apply such a procedural bar and reached and considered the merits of the recusal issue during defendant’s appeal to that court from his conviction. A state court’s decision not to apply the Wainwright procedural bar rule removes any impediment to substantive review by a federal court in a habeas corpus proceeding. See County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Baker v. Muncy, 619 F.2d 327, 329 (4th Cir.1980).

      . Trial Transcript at 93-94.

      . Md.Ann.Code art. 27, § 645A.

      . During the pendency of the within case, Judge Truitt filed an affidavit in this case stating that he had on May 4, 1984 "no personal recollection of Donald Lee Layer or of any trial or sentencing concerning Donald Lee Layer. However, as is my practice, had there been any belief that I could not have sentenced Layer in a fair and impartial manner, I would have recused myself.” (Docket 21, Exh. 1).

      . See also, to the same general effect, Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1165-1166 (5th Cir.1982), cert. denied, — U.S. —, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); In re Virginia Electric and Power Company, 539 F.2d 357, 369 (4th Cir.1976).

      . Nor has a search in the American Bar Association's records of bar association or related rulings shed any particular additional light on the subject. In addition, see generally Annotation: Prior representation or activity as attorney or counsel as disqualifying judge, 72 A.L.R.2d 443 et seq.

      . That concern, however, may need to be balanced in some cases by practical considerations as, for example, when a judge, who has practiced in the past as a defense attorney in criminal cases in a sparsely populated area, has represented many of the repeat offenders who appear in his court, and there is no other available judge sitting within the same geographical area.

      . The constitutional importance of the right to counsel is stressed by such cases as Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

      . Other case law, while somewhat helpful, is not too instructive. See Matter of Wireman, 270 Ind. 344, 367 N.E.2d 1368, 1373 et seq., cert. denied, 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978).


source: Caselaw Access Project

author: JUSTICE, Chief Judge.

license: Public Domain

text:
    Fidel B. IBARRA, Jr., and Mario Esparza, Individually and in behalf of all others similarly situated, Plaintiffs, v. TEXAS EMPLOYMENT COMMISSION and Ed Grisham, in his official capacity as Chairman of the Texas Employment Commission, et al., Defendants.
    Civ. A. No. L-83-44-CA.
    United States District Court, E.D. Texas, Lufkin Division.
    Oct. 4, 1984.

      Richard S. Fischer, East Texas Legal Services, Inc., Nacogdoches, Tex., for plaintiffs.
    Lawrence J. King, Asst. Atty. Gen., Austin, Tex., for defendants.
   ORDER

JUSTICE, Chief Judge.

This civil action is brought under 42 U.S.C. § 1983. Jurisdiction is based on 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Plaintiffs have moved for class certification pursuant to Rule 23, Fed.R.Civ.P. The two named plaintiffs are citizens of Mexico seeking to represent a class of all past, present, and future alien claimants of unemployment insurance benefits in the State of Texas who have had or will have their claims denied on the basis of their alienage. Specifically, the plaintiffs allege that the Texas Employment Commission (“TEC”) has engrafted, onto the relevant state and federal law, its own requirement that all applicants for unemployment benefits produce documentation showing that the Immigration and Naturalization Service (“INS”) has authorized the applicant to work. Plaintiffs allege that this requirement conflicts with the federal law regulating State Employment Security Administrations, and therefore must be struck down under the Supremacy Clause of the United States Constitution.

This action originally involved a broad-gauged attack on TEC procedures. The parties have informed the court, however, that the only remaining issue involves INS work authorization.

Plaintiff Fidel B. Ibarra, Jr., is a forty year old citizen of Mexico, and a lawful permanent resident of the United States. He claims that he was granted permanent resident status on September 23, 1982, and reentered the United States under this status on October 1, 1982. He alleges that on October 4, 1982, he was laid off from his job at Texas Foundries, where he had been continuously employed since 1977. That same day he allegedly went to the TEC office in Texas to request unemployment benefits, and fell into a procedural imbroglio over his eligibility for benefits, which continued until approximately July 21, 1983. On that date, he allegedly received fourteen unemployment insurance claim checks totaling $4,033.00, as payment for claims from October 20, 1982 through June 20, 1983. Approximately one week later, the TEC reversed its position and demanded these payments back. Plaintiff Ibarra claims that the TEC’s reversal is based on its erroneous interpretation of applicable federal and state law.

Plaintiff Esparza alleges that he was employed in the general business of construction in the Laredo, Texas area from November 1977 until March 1983. He further alleges that on or about June 7, 1983, he applied for unemployment benefits, and was denied on the basis of his immigration status.

This action presents a problem of statutory interpretation. The statute in question is 26 U.S.C. § 3304(a)(14), which allows aliens to receive unemployment benefits if they are “permanently residing in the United States under color of law.” Both plaintiffs allege that they were permanently residing in the United States under color of law at the time they applied for their benefits, and were denied these benefits pursuant to TEC policy which conflicts with the controlling federal statute. Plaintiffs claim this status under the independent theories:

(a) They were protected, class members under the injunction in Silva v. Levi, 76 C. 4268 (N.D.Ill.) and the following measures taken by the INS with respect to so-called “Silva class members,” and as such were protected against deportation;
(b) The INS knew where they were, knew their immigration status, and did not attempt to deport them.

(Fourth Amended Complaint, p. 9.) The proposed class is larger than that of applicants who are within the ambit of § 3304(a)(14), but are nevertheless denied benefits by the TEC. Instead, it includes all alien applicants, on the theory that all are subjected to an allegedly arbitrary requirement of producing documentation establishing INS work authorization in order to receive benefits. (Fourth Amended Complaint, p. 6.)

As a threshold matter, defendant has moved that this court abstain from this action until a Texas court has a chance to rule on issues of state law which, defendant asserts, are raised by plaintiffs’ allegations. Defendants urge the court to apply the abstention doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), to the case. These will be considered, in turn.

Burford-type abstention is “appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” Palmer v. Jackson, 617 F.2d 424, 428 n. 7 (5th Cir.1980) quoting Colorado River Water Cons. District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). In Burford, the Supreme Court upheld a district court’s abstention in a case where exercise of jurisdiction would have meant interference with an extremely elaborate scheme of state law regulating Texas’s natural gas resources. Scrutiny of plaintiff’s claims and legal theories reveal that the underlying considerations of comity which controlled in the Burford case are of no relevance here.

The statutory scheme here in question is not peculiarly, or even primarily, state. It is a cooperative state-federal venture, through which the federal government gives financial assistance to the state unemployment compensation systems which are administered in conformity with federal law. In order to receive federal tax credits for unemployment insurance programs, states programs must be certified by the United States Secretary of Labor as being in compliance with the standards set out in the Social Security Act. 26 U.S.C. § 3304(c); Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 892, 81 L.Ed. 1279 (1936). The law here at issue is overwhelmingly federal law. The Texas statute, art. 5221b-l(h), passed in conformity with 26 U.S.C. § 3304(a), is copied word-for-word from the federal statute. In fact, the Texas law is accompanied by two provisos to insure that Texas law will always be the exact-mirror image of federal law: art. 5221b-l(h) (Vernon Supp.1984) (Texas statute automatically adopts changes in parent federal statute); and Acts 1977 65th Leg., ch. 368, § 22, 1977 Tex.Gen.Laws. (Texas statute automatically repealed to the extent federal parent statute adjudged invalid or unconstitutional). Thus the interpretation of federal law will be dispositive of the interpretation of state law. As plaintiffs point out, this is in sharp contrast to the studied and complex system of local regulation in the Burford case (Memorandum in Opposition to Defendants’ Motion for the Court to Abstain, p. 14). The central issue in the resolution of plaintiffs’ claim is not Texas law, but the extent to which Texas practices differ from those required by the Social Security Act. Defendants’ justifications for their actions — in this case the contention that their policies are required by state law — are irrelevant to this inquiry. See O’Leary v. Social Security Bd., 153 F.2d 704, 707 (3rd Cir.1946) (federal unemployment insurance is a nationwide program overriding local laws which may conflict with its provisions); Fahs v. Tree-Gold Co-op. Growers of Florida, 166 F.2d 40 (5th Cir.1948) (local law of what constitutes “employee” irrelevant to inquiry of what constitutes “employee” under Social Security Act).

Finally, the magnitude of the potential intrusion into TEC operation which this action threatens is nowhere near that of the intervention at stake in the Burford case. In that ease, the court noted that federal court decisions had disrupted state government to the extent that the Governor felt it necessary to declare martial law, id., at 329, 63 S.Ct. at 1105. Here, the relief requested — modification of the state’s working definition of which aliens are in the United States under “color of law”— will obviously not threaten the functional integrity of Texas’s unemployment compensation system. According to plaintiffs, the requested relief will affect how the TEC handles .000382% of the claims it receives. (Memorandum on Abstention at p. 20.) Clearly, abstention here would further none of the policies set out in the Burford decision.

An alternative abstention doctrine to which defendants refer is Pullman abstention. “The Pullman case establishes two prerequisites for Pullman abstention: (1) there must be an unsettled issue of state law; and (2) there must be a possibility that the state law determination will moot or present in a different posture the federal constitutional question raised.” Palmer v. Jackson, 617 F.2d 424, 428 (5th Cir.1980). Defendants argue that both requirements have been met, in that a state court determination that TEC practice does not conform to the Texas unemployment statute could possibly give plaintiff the same relief that is sought in this court. The analysis for purposes of Pullman abstention, however, is not concerned with the issues in a hypothetical state court suit which theoretically could be brought, but with the law and issues actually before this court.

The basis rationale of Pullman abstention, the avoidance of unnecessary constitutional issues, is inapplicable to this case. The issues presented here are overwhelmingly those of statutory construction. The Court of Appeals for the Fifth Circuit has considered the question of the propriety of Pullman abstention in a case concerning Medicaid benefits, another federal-state program created by the Social Security Act. In that case Florida Medicaid administration — involving Florida statutes — was challenged as being inconsistent with federal statutes. The district court refused to abstain, and the Fifth Circuit upheld this action, stating that the action presented no issues justifying either Burford or Pullman abstention. Curtis v. Taylor, 648 F.2d 946, 949 (1980). The Curtis case is dispositive of the issue of Pullman abstention in this action. Indeed, federal courts are the traditional forum for Supremacy Clause challenges to state administration of a federal-state Social Security Act program. See, e.g. Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (AFDC); California Department of Human Resources v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971) (unemployment insurance); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972) (AFDC); Mille v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979) (AFDC). In each of these cases, the challenge to the state practice originated in a federal district court. This court is likewise a suitable forum for the plaintiffs’ action.

With the preliminary issue of abstention resolved, the specific requirements set out in Rule 23 will be addressed. Rule 23(a) Fed.R.Civ.P., sets out the prerequisites for maintenance of a class action.

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Numerosity

Defendants, in their answer to plaintiffs’ interrogatories, have stated that in the eight calendar quarters preceding May 11; 1984, an average of 133 persons have been denied unemployment benefits on the basis of alienage, pursuant to the Texas statutory counterpart of § 3304(a)(14). Thus more than 500 individuals per year have aliens as class members, clearly enough to fulfill Rule 23(a)’s requirement of numerosity. See generally, J. Moore, Moore’s Federal Practice, Vol. 3B § 23.05[1]. The class is dispersed throughout Texas, which makes joinder impracticable, see Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980). Finally, the proposed class contains prospective members, who may be harmed by defendants’ policies in the future. By definition, the identities of these members are unknown. “[Jjoinder of unknown individuals is certainly impracticable.” Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir.1974), quoted in Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir.1981).

Typicality and Commonality

The central issue in this case is the proper meaning of § 3304(a)(14), and whether defendants’ policies violate this statute. Both parties have submitted briefs citing case law, legislative history, and administrative interpretation in support of their interpretation of the meaning of this statute. Plaintiff has pointed out seeming inconsistencies in the United States Department of Labor’s interpretation of § 3304(a)(14), and has referred the court to two other statutes under the Social Security Act which employ the same language: 42 U.S.C. § 1382c(a)(1)(B)(ii) (Supplemental Security Income), and 42 U.S.C. § 602(a)(33) (Aid to Families with Dependent Children). Since these statutes have an identical purpose and subject matter — restricting the eligibility of aliens for benefits under the Social Security Act — it seems that they should be construed in pari materia. See generally, United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 (1940); Wong Kam Wo v. Dulles, 236 F.2d 622 (9th Cir.1956); Brown v. Gilligan, Will and Co., 287 F.Supp. 766 (1968). Statutes that are in pari materia are “to be taken together, as if they were one law.” United States v. Freeman, 3 How. 556, 564, 11 L.Ed. 724 (1845), quoted in United States v. Stewart, id. 311 U.S. at 64, 61 S.Ct. 105. Of particular interest is the agency interpretation of the earlier of these enactments, 42 U.S.C. § 1382c(a)(1)(B)(ii), which is contained in regulations promulgated by the Department of Health and Human Services, 20 C.F.R. § 416.1618. This working definition of “permanent resident under color of law” recommends itself as practicable, and its application to the identical language here would seem to promote consistency in the administration of Social Security Act programs. It would be inappropriate, however, to convert this motion for class certification into a motion for summary judgment, Garcia v. Gloor, supra. No attempt will be made, therefore, to construe the statute at this point in such a way as to define the class of those “permanently residing in the United States under color of law”.

The parties agree that the defendants interpret this phrase to mean “in possession of INS work authorization.” Both plaintiffs were denied benefits on this basis, as is every alien in Texas who is unable to produce such authorization. All class members have a common interest in striking down this practice, and none can set about showing the basis for their claim of “permanent residence under color of law”, if this threshold requirement of the TEC is upheld as being consistent with federal law. The issue of the propriety of defendants’ conduct supplies the required typicality and commonality to make this action maintainable as a class action. Pending a final determination of the meaning of § 3304(a)(14), therefore, a class of all those aliens denied benefits because of an inability to produce INS work authorization will be conditionally certified pursuant to Fed. R.Civ.P. 23(c)(1).

Fair and Adequate Representation

Defendants have not suggested that there is any antagonism within the proposed class, or that plaintiffs will not vigorously pursue their claims. The affidavits submitted by counsel indicate that the plaintiffs will receive skilled and qualified representation in doing so.

Maintainability

This action is clearly maintainable under subdivision (b)(2) of Rule 23. “This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, setting the legality of the behavior with respect to the class as a whole, is appropriate.” Notes of Advisory Committee on Rules, Rule 23 Fed. R.Civ.P. Here, the defendant is alleged to have refused benefits to a class entitled to them, on the single ground that class members did not produce evidence of INS work authorization on demand. Plaintiffs’ seek an end to this practice, and relief bringing Texas’s practice into accord with the federal statute. This is the type of broad remedial action for which subdivision (b)(2) was designed. Penson v. Terminal Transport Co., 634 F.2d 989 (5th Cir.1981). On the basis of the foregoing, it is

ORDERED that plaintiffs’ motion for certification of a plaintiff class is, hereby, GRANTED; it is further

ORDERED that this action shall proceed as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.P.; it is further

ORDERED that the plaintiff class conditionally consist of all past, present, and future individuals who have been denied unemployment benefits in Texas because of their inability to produce INS work authorization.

SIGNED and ENTERED this 4th day of October, 1984.

      . As plaintiffs point out, it is not at all clear that this action could be brought in state court. Tex. Rev.Civ.Stat.Ann. art. 5221b-4(i) allows dissatisfied claimants to appeal their cases in the district court of the county in which the claimant is resident. It does not provide for class actions or equitable relief. Therefore abstention by this court would prevent this suit, in its present form, from being brought anywhere. "Federal abstention also presupposes the availability of an alternative state forum which can afford full and fair relief.” Duncan v. Poythress, 657 F.2d 691, 696 n. 4 (5th Cir.1981).

      . § 416.1618 How to prove you are permanently residing In the United States under color of law.
      (a) What you should give us. You can prove you are permanently residing in the United States under color of law by giving us—
      (1) An Arrival-Departure Record (Immigration and Naturalization Service (INS) Form 1-94) endorsed "Refugee Conditional Entry” and showing the section of the Immigration and Nationality Act under which you were admitted.
      (2) An Arrival-Departure Record (INS Form 1-94) endorsed to show that you are paroled for an indefinite period under section 212(d)(5) of the Immigration and Nationality Act;
      (3) An Arrival-Departure Record (INS Form 1-94) endorsed "Voluntary Departure Granted-Employment Authorized” (this form and an INS letter are given to persons affected by a United States District Court order issued March 10, 1977);
      (4) An Arrival-Departure Record (INS Form 1-94) endorsed "Admitted as a refugee pursuant to section 207 of the Immigration and Naturalization Act”;
      (5) An Order of Supervision (INS Form I220B) which shows you have been granted an indefinite stay of deportation.
      (6) Any other letter or document from the Immigration and Naturalization Service showing that you have been granted either an indefinite voluntary departure or an indefinite stay of deportation; or
      (7) Proof of your presence in the United States before June 30, 1948, and proof of your continuous residence thereafter.
      (b) What to do if you cannot give us the information listed in paragraph (a). If you cannot give us any of the documents listed in paragraph (a), we may find you to be permanently residing in the United States under color of law if you—
      (1) Explain why you cannot give us any of the documents; and
      (2) Give us any information you have which shows or results in proof that you are permanently residing in the United States under color of law. We will contact the Immigration and Naturalization Service to help establish that you meet this color of law rule.
      (c) What "United States” means. We use the term "United States” in this section to mean the 50 States, the District of Columbia, and the Northern Mariana Islands.


author: SHOOB, District Judge.

text:
    DC COMICS INC., Plaintiff, v. UNLIMITED MONKEY BUSINESS, INC., et al., Defendants.
    Civ. A. No. C82-2264A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Oct. 11, 1984.

      Miles Alexander, Joseph Beck, Jerre B. Swann, Gail Tusan Joyner, Atlanta, Ga., for plaintiff.
    Francis M. Pinckney, Charlotte, N.C., John Pennington, Atlanta, Ga., for defendants.
   ORDER

SHOOB, District Judge.

This action arises under federal trademark and copyright statutes and under state law. Plaintiff holds copyrights and trademarks pertaining to the fictional characters SUPERMAN and WONDER WOMAN, their names and attributes, and has exploited those properties in the distribution of comic books, films, and merchandise. Defendants are a corporation and its owners that engage in the franchising of “singing telegram” companies, and a partnership that operates one of the franchises. Among the skits performed by defendants and their licensees are two that feature characters named “Super Stud” and “Wonder Wench”. Plaintiff alleges that the use of those characters infringes upon its property rights, and seeks a permanent injunction barring the use of those characters.

Presently before the Court are a motion by defendants for summary judgment and a motion by plaintiff for partial summary judgment as to liability. The parties agree that liability in this case may be decided on cross-motions for summary judgment.

The following facts are undisputed.

1. Plaintiff DC Comics Inc., a New York corporation, is the publisher and successor in interest of the former publishers of comic magazines about the adventures of SUPERMAN and WONDER WOMAN.

2. Defendant Unlimited Monkey Business, Inc. (“UMB”), is a Georgia corporation; defendant Monkey Business Singing Telegram Service (“MBSTS”) is a partnership with its principal place of business in Atlanta, Georgia; and defendants Michael and Jeanie Batchelor, the sole owners of UMB, are the president and the vice-president, respectively, of UMB and are partners in MBSTS.

3. UMB licenses or franchises the performance of singing telegrams. At the time suit was commenced, it had licensed or franchised 13 companies and firms pursuant to written franchise or license agreements. MBSTS, through its employees, performs singing telegrams in the Atlanta area.

4. Since 1938, plaintiff and its predecessor in interest have distributed millions of copies of its SUPERMAN comic books. The stories depicted in these comic books consistently have employed the device of a double identity — Clark Kent and SUPERMAN — to tell the stories.

5. SUPERMAN consistently has worn a blue, skin-tight suit with a yellow, five-sided shield on the chest, emblazoned with the red letter “S”; a red cape, trunks, and boots; and a gold belt.

6. In virtually every one of these millions of plaintiffs comic books, .one or more, and often all, of the following identifying elements have been included:

(a) the words, “mild-mannered”, to describe Clark Kent’s character, as in “Clark Kent, mild-mannered reporter for the Daily Planet”;

(b) Clark Kent’s co-worker at the Daily Planet, Jimmy Olsen;

(c) Clark Kent saying, “This looks like a job for SUPERMAN,” then dramatically removing his glasses and unbuttoning his business shirt (often in a telephone booth) to reveal the famous SUPERMAN costume;

(d) the phrases, “faster than a speeding bullet! more powerful than a locomotive! able to leap tall buildings at a single bound!”;

(e) the exclamation, “It’s a bird, it’s a plane, it’s SUPERMAN!”; and

(f) the reference to SUPERMAN having been born on the mythical planet, “Krypton”.

7. For many years, the following words were included in the introduction to the SUPERMAN radio programs broadcast nationwide:

Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings at a single bound! Look! Up in the sky! It’s a bird! It’s a plane! It’s SUPERMAN!
Yes, it’s SUPERMAN — who, disguised as Clark Kent, mild-mannered reporter for a great metropolitan newspaper, fights a never ending battle for truth, justice, and the American Way!

8. Since 1941, plaintiff and its predecessor in interest have distributed millions of copies of its WONDER WOMAN comic books. In virtually every issue, WONDER WOMAN has worn a costume of patriotic colors and symbols comprising a red top bearing gold, wing-tipped insignia; a gold and white star-spangled bottom; and red boots. The costume consistently has also included the following important accessories:

(a) a gold tiara headband with a red star on it (which also serves as a radio receiver);

(b) a magic lasso or rope which she wraps around her captives to compel them to tell the truth;

(c) a gold belt which enables WONDER WOMAN to compel obedience; and

(d) wrist bracelets on each arm, often used to deflect bullets.

9. WONDER WOMAN also has appeared consistently in the above-described costume and accessories in animated and live-action television series broadcast throughout the country for many years.

10. For more than forty years, plaintiff has used its SUPERMAN and WONDER WOMAN marks to designate origin. As a result, these marks have been regarded by the public as indicating plaintiff as a source of a variety of literary works, products, and services. During this period, plaintiff and its licensees have been engaged in the production, distribution, and sale, in interstate and foreign commerce, as well as in Georgia, of books, magazines, radio and television programs, movies, and a wide variety of goods and services bearing the wordmarks SUPERMAN and WONDER WOMAN, the distinctive SUPERMAN and WONDER WOMAN logotypes, various design marks depicting SUPERMAN and the “S” shield design associated therewith, various design marks depicting WONDER WOMAN, and various slogans and phrases associated with the characters.

11. Plaintiff has licensed thousands of children’s products bearing the SUPERMAN name, costumes, images, phrases, and logos, ranging from school bags to Halloween costumes to wallpaper. Plaintiff strictly adheres to its policy of taking great care in the selection of licensees who will responsibly utilize and promote the SUPERMAN character, costumes, phrases, names, and images; has maintained strict requirements with respect to the quality of products used with the character and properties and with respect to the use of the character and properties themselves with products; and has required permanent and legible copyright and trademark notices to be affixed to all licensed products. This licensing activity has generated several billion dollars worth of income for plaintiff over the past fifteen years.

12. Plaintiff has licensed thousands of children’s products bearing the WONDER WOMAN name, costume, images, and logos, and ranging from pajamas and night slippers to pillows to school supplies. Plaintiff strictly adheres to its policy of taking great care in the selection of licensees who will responsibly utilize and promote the WONDER WOMAN character, costume, name, and images; has maintained strict requirements with respect to the quality of products used with the character and properties and with respect to the use of the character and properties themselves with products; and has required permanent and legible copyright and trademark notices to be affixed to all licensed products. This licensing activity has generated income for plaintiff in excess of $80,000,000 during the past ten years.

13. One or more of defendants prepared and circulated to UMB’s licensees a script suggesting that the Super Stud character identify himself as “Dark Dent”, a reporter from the Monkey Business “Daily News”. Assisted by a toy monkey identified to the audience as “Jimmy Olson”, Dark Dent concludes, according to the script, that he is too “mild-mannered” to perform the singing telegram. Dark Dent then removes his glasses and unbuttons his shirt to reveal a skin-tight costume, declaring, “This must be a job for ‘Super Stud.’ ”

14. The script also suggests that defendants’ messengers recite, or authorizes them to recite, the following phrases to the telegram audiences:

(a) faster than a speeding tortoise;
(b) more powerful than an armpit;
(c) able to leap tall broads in a single
bound;
(d) it’s a nurd;
(e) it’s insane;
(f) it’s Super Stud.

The script further suggests that Super Stud inform the audience, or authorizes him to inform the audience, that Super Stud comes from “Criptoff” and refers to Dark Dent’s leaving his reporter’s clothes in a telephone booth.

15. Dark Dent’s statements, as he removes his hat and glasses, that he is too “mild-mannered” and that “this must be a job for”, by themselves evoke the character of Clark Kent transforming into SUPERMAN.

16. The phrases “Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings in a single bound!”, standing alone and by themselves, and without any reference to SUPERMAN, are evocative of the description of plaintiff’s character, SUPERMAN.

17. The phrases, “It’s a bird! It’s a plane! It’s ... ”, are also suggestive, standing alone and without reference to SUPERMAN, of the character SUPERMAN.

18. Until shortly before the commencement of this litigation, the costume worn by Dark Dent beneath his reporter’s garb was a blue skin-tight suit with a yellow, five-sided shield on the chest, emblazoned with the red letter “S”; a red cape and trunks; black boots; and a gold belt.

19. Defendant Jeanie Batchelor engaged a seamstress to prepare the yellow, five-sided shields emblazoned with a red letter “S”, which were worn on the chest of the Super Stud costume. Defendant Jeanie Batchelor supplied the seamstress with a sample of the yellow, five-sided shield, emblazoned with the red letter “S”, which is worn on the chest of the SUPERMAN costume, and instructed the seamstress to duplicate the SUPERMAN shield in preparing the Super Stud shield.

20. All of defendant UMB’s franchisees/licensees have performed the Super Stud act in costumes identical or quite similar to the costumes described above, and many of them have utilized numerous of the slogans and dramatic elements mentioned in the script and “franchisee manual”.

21. Defendants have supplied Super Stud and Wonder Wench telegram recipients with balloons depicting SUPERMAN and WONDER WOMAN. These balloons themselves are copyrighted, licensed products of plaintiff.

22. An advertisement for defendants’ overall business urges that consumers “SEND SUPERMAN to pick up your friends at the airport.” (Capitalization in original.) An advertisement for defendants’ Super Stud includes a panel of the character “flying away”; an ad for Wonder Wench depicts the character wrapping a magic lasso or rope around a man. In still another ad, the characters say, “Truth, justice, and the American way, but those days are gone.”

23. Defendants Jeanie and Michael Batchelor have had repeated access to plaintiff’s copyrighted SUPERMAN and WONDER WOMAN works for many years.

24. Defendants’ uses of Super Stud and Wonder Wench are commercial, for profit uses, and not educational, non-profit uses.

25. The sole functions of the Super Stud and Wonder Wench acts have been entertainment and comedy, and “to express to the telegram recipient that someone cares enough about them to send a singing telegram in celebration of whatever the occasion might be.”

•26. The SUPERMAN and WONDER WOMAN characters, story elements, costumes and phrases are the product of substantial, independent, original and creative work by plaintiff.

27. Plaintiff and its predecessor in interest have included the proper statutory notice of copyright in all published copies of the SUPERMAN and WONDER WOMAN works. All such copyrights have been duly registered with the United States Copyright Office and, where appropriate, duly renewed.

28. By virtue of the widespread popularity of the SUPERMAN and WONDER WOMAN stories and their principal characters, and plaintiff’s and its licensees’ extensive sales and advertising of goods and services under the marks during the past several years, the SUPERMAN and WONDER WOMAN marks have acquired outstanding celebrity and have obtained virtually universal recognition in the United States and throughout the world as unique, distinctive marks symbolizing the extensive goodwill associated with the public image of this hero and heroine.

The various allegations and counts concern three basic legal issues: trademark dilution, trademark infringement (with associated issues of fair or deceptive practices), and copyright infringement. The Court will address each issue separately.

Dilution

O.C.Ga.Ann. § 10-1-451 requires a court to enjoin subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement if there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the trademark, trade name, label, or form of advertisement of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services____

On the undisputed facts, it is clear that defendants have used the same and similar trade names in their advertising and in their products, and the same and similar labels in their costumes. There is also a clear likelihood of dilution of the distinctive quality of plaintiff’s trademarks and trade names. Summary judgment in favor of plaintiff on the issue of liability under § 10-1-451 is therefore appropriate.

Trademark Infringement and Unfair Competition

Section 32 of the Lanham Act, 15 U.S.C. § 1114(1), provides as follows:

Any person who shall, without consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or color-ably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the remedies hereinafter provided____

Defendants’ use of the SUPERMAN costume, and in particular the “S” chest shield; their use of SUPERMAN and WONDER WOMAN balloons in skits; the presence of the SUPERMAN name in their advertising; and their colorable imitations of the WONDER WOMAN costume all establish a likelihood of confusion, mistake, or deception as to the source of the singing telegram services and as to any affiliation between plaintiff and defendants. Plaintiff is therefore entitled to summary judgment as to liability under 15 U.S.C. § 1114(1).

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), states, in pertinent part:

Any person who shall affix, apply, or annex, or use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action by ... any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

On the undisputed facts, defendants’ use of SUPERMAN and WONDER WOMAN marks in advertising and in the performance of their services tends falsely to describe and represent defendants’ services. By trading upon the goodwill of the marks, established through plaintiff’s ingenuity and effort, and by altering the denotation and connotation of those marks, defendants are likely to damage plaintiff. In making this conclusion, the Court observes that both plaintiff and defendants are engaged in the commercial exploitation of entertainment. The control, use, and modification of plaintiff’s characters for singing telegram services must be left in plaintiff’s hands. Summary judgment for plaintiff as to liability under 15 U.S.C. § 1125(a) is therefore proper.

O.C.Ga.Ann. § 10-1-372 states, in pertinent part:

(a) A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
(2) Causes likelihood of confusion or Of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another;
(b) In order to prevail in an action under this part, a complainant need not prove competition between the parties or actual confusion or misunderstanding.

On the undisputed facts, defendants have caused likelihood of confusion as to source, sponsorship, and approval of their services and as to affiliation, connection, and association between defendants and plaintiff. The use of the balloons, the costumes, and the names of plaintiff’s characters all create the likelihood of confusion. Summary judgment for plaintiff as to liability under O.C.Ga.Ann. § 10-1-372 is therefore warranted.

O.C.Ga.Ann. § 10-1-393 states, in pertinent part:

(a) Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are declared unlawful.
(b) By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices are declared unlawful:
(2) Causing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) Causing actual confusion or actual misunderstanding as to affiliation, connection, or association with or certification by another____

Plaintiff has offered several examples of actual confusion that defendants have been unable to dispute. The June 2, 1981 Charlotte (N.C.) Weekly Uptown showed front-page photographs of “Monkey Business’ Wonder Woman” welcoming home a sports celebrity. An article in the Charlotte Observer of the same day identified the singing telegram performer in a similar photo simply as “Wonder Woman”. The February, 1979 issue of Sacramento features a cover-page color photo of a Monkey Business employee costumed as, and described simply as, “Wonder Woman”. The accompanying article includes “Wonder Woman” and “Superman” among characters featured by the singing telegram service. These articles are undisputed evidence of actual confusion as to source, sponsorship, and approval of the Monkey Business services and as to affiliation, connection, and association between defendants and plaintiff. For that reason, plaintiff is entitled to summary judgment as to liability under O.C.Ga.Ann. § 10-1-393.

The decisions announced above regarding plaintiffs statutory claims render unnecessary an evaluation of plaintiffs common-law claims.

Copyright Infringement

17 U.S.C. § 106 provides, in pertinent part:

Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

To establish copyright infringement, a plaintiff must show its ownership of the copyright and copying by defendant. Because direct proof of copying is typically unavailable, a plaintiff may offer circumstantial evidence of copying by showing defendant’s access to the protected material and a substantial similarity between plaintiff’s and defendant’s works. A claim of infringement must overcome a defense of fair use, such as the parody use claimed by defendant in this case.

Access by defendant Jeanie Batchelor to plaintiff’s works is undisputed, as is plaintiff’s ownership of copyrights in its works. The Court must determine from other undisputed facts whether, as a matter of law, defendants’ and plaintiff’s works share a substantial similarity and whether defendants’ parody defense is valid.

There is no dispute that one script before the Court (Exhibit 4 to Plaintiff’s Brief) was provided to licensees of defendants as a model for Super Stud skits. That script culls the most characteristic and most memorable portions of the Superman plots, and the core of the Superman stories — the sequence of events and character development — appears in the Super Stud skits. The similarity — based on plot structure, phrases, costumes, and names — is striking. The words of defendant Jeanie Batchelor reveal the degree of similarity between the Superman and Super Stud stories. After acknowledging that she attended the movie Superman in order to see if she could add something else to the Super Stud act, she stated that she could not find anything and that the Super Stud act, as it was, was “pretty complete already”. Deposition of Jeanie Batchelor at 95-96.

Defendants rely heavily upon. the defense of fair use, claiming that their works parody those of plaintiff. 17 U.S.C. § 107 states:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

These factors contribute to an “equitable rule of reason” applicable to particular claims of infringement. Sony Corp. of America v. Universal City Studios, Inc., — U.S. —, 104 S.Ct. 774, 792, 78 L.Ed.2d 574 (1984).

The Court makes the following observations in evaluating the four statutory factors in this case. First, defendants use elements of plaintiffs copyrighted works in commerce: defendant’s business embraces franchising and the delivery of greetings or messages combined with entertainment. Second, the copyrighted works include comic books, films, and other audiovisual products that embody much original creative effort and result from substantial labor and expenditure. The creative effort included both the fashioning of ideas and the expression of them in a distinctive manner. The works have created over time a set of distinctive characters that have taken on lives in the public imagination that extend far beyond the reach of the individual works.

Third, the salient features of the alleged parody draw from the most recognizable, and most consistent, expressions of plaintiff’s ideas,- as embodied in the language and the stories of plaintiff’s works. Cf. Universal City Studios, Inc. v. Kamar Industries, Inc., [1982] Copyright L.Rep. (CCH) ¶ 125,452 (S.D.Tex. Sept. 20, 1982) (appropriation of the recurrent phrases from film E.T. infringed copyright). The copying goes beyond what is necessary merely to allude to or “conjure up” the object of the parody. Cf. Walt Disney Productions v. Air Pirates, 581 F.2d 751, 757 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979).

Fourth, there are two types of effect upon the potential market for plaintiff’s works that may arise from defendants’ alleged parodies. One type of effect concerns the potential for commercial substitution. Plaintiff and defendants conduct similar business, notwithstanding the different sizes of their enterprises. Plaintiff engages in licensing and the selling of entertainment. Defendants engage in franchising and the selling of entertainment: as part of their franchising activity they supply scripts and props to franchise operators. There is a clear potential market for genuine SUPERMAN singing telegrams, as shown by the use by defendants of an advertisement enticing customers to “send Superman to pick up your friends at the airport” and the news coverage of “Wonder Woman” delivering singing telegrams; and plaintiff has the ability to exploit that market. Whether or not plaintiff now exploits that market, the effect of defendants’ practices upon plaintiff's potential market is clear: they satisfy demand, at least iii part, and create competition for plaintiff as a potential entrant.

A second type of effect on the potential market for or value of plaintiff’s copyrighted works results from the implicit disparagement and bawdy associations undisputably created by some of defendants’ adaptations. This harm is akin to that of dilution in trademark law, but it does not merely lessen the distinctiveness of plaintiff's works: it tarnishes the “all-American” image that plaintiff has labored to create and to preserve. Defendants do not engage in critical comment that constitutes part of the “free flow of ideas” underlying the doctrine of fair use. Instead, they seek to augment the commercial value of their own property by creating new, and detrimental, associations with plaintiff’s property. Defendants have the right to discuss, and even to criticize, plaintiffs stories and characterizations; but defendants do not have the right to change plaintiffs property by altering the popular associations carefully wrought by plaintiffs. Parody in its proper role creates something new by drawing from the old; but when it has the effect of refashioning or destroying the old, it is not protected.

In addition to the four factors necessarily considered in a determination of fair use, the Court considers a fifth factor. There is a difference between works that incidentally parody other works while creating a genuinely distinct product and those that comprise little more than an adaptation of another’s original work. Here both of the challenged skits have been sold on the strength of their association with plaintiff’s originals, not on the strength of defendants’ imagination and originality. Trading upon the imagination and originality of another is not fair use.

On the basis of these observations, the Court decides that defendants are not entitled to claim fair use as a defense to plaintiff’s claim of infringement. Because the Court finds, upon the undisputed facts, that defendants have infringed plaintiff’s copyrights and that defendants have no defense of fair use, the Court concludes that plaintiff is entitled to summary judgment as to liability for copyright infringement.

Conclusion

For the reasons stated above, the Court GRANTS plaintiff’s motion for summary judgment as to liability and DENIES defendants’ motion for summary judgment. The Court PERMANENTLY ENJOINS each of the defendants, jointly and severally, as well as each and every one of their respective partners, agents, servants, employees and all other individuals, firms, corporations, associations and partnerships affiliated, associated or acting in concert with them or allied with them in any way or having notice of such order:

(a) From directly or indirectly distributing, exhibiting, performing or otherwise publishing or exploiting the singing telegrams or any other vehicle utilizing the characters identified by defendant as “Super Stud” and “Wonder Wench” and any and all materials used to promote or advertise said telegrams;

(b) From directly or indirectly distributing, exhibiting, performing or otherwise publishing or exploiting any other singing telegrams, performances, or advertising materials, costumes or any other vehicle, which use in any manner characters, scenes or stories copied or derived from or substantially similar to those depicted in plaintiff’s trademarked or copyrighted SUPERMAN and WONDER WOMAN literary or dramatic works;

(c) From directly or indirectly distributing, exhibiting, performing or otherwise publishing or exploiting singing telegrams or other materials which so resemble plaintiff’s trademarks, service marks or forms of advertisements as to be likely to cause confusion, deception or mistake;

(d) From passing off or inducing or enabling others to sell or pass off any goods or services as those authorized by plaintiffs which are not plaintiff’s or not produced under the control and supervision of plaintiff or authorized for sale by plaintiff in connection with its marks;

(e) From infringing in any manner the trademarks or copyrights of plaintiff in the literary and dramatic characters of SUPERMAN and WONDER WOMAN and the facts and situations associated with plaintiff’s copyrighted SUPERMAN and WONDER WOMAN literary and dramatic works;

(f) From further diluting and infringing plaintiff’s trademarks, service marks, tradenames and forms of advertisement or damaging plaintiff’s good will and reputation;

(g) From engaging in false designations of origin, false descriptions or false representations in violation of Section 43(a) of the Lanham Act or from otherwise engaging in unfair or deceptive trade practices or competing unfairly with plaintiff in any manner whatsoever.

      . For example, the suggested script for the Super Stud act includes references to aphrodisiacs, "clap," being "horny,” vaginal deodorant, and "leaping tall broads." In addition, the character delivers the message by retrieving it from inside his pants.

      . Section 107 does not limit a court to consideration of only the four factors enumerated in the statute. ”[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.” H.Rep. No. 94-1476, p. 66, U.S.Code Cong. & Admin.News 1976, pp. 5659, 5680, quoted in Sony Corp., 104 S.Ct. at 792 n. 31.