author: ACKER, District Judge.

text:
    UNITED STATES of America v. Bessie Jones UNDERWOOD. UNITED STATES of America v. Bobbie Nell SIMPSON. UNITED STATES of America v. James COLVIN. UNITED STATES of America v. Spiver Whitney GORDON and Frederick Douglas Daniels.
    Nos. CR 85-G-197-W, CR 85-AR-198-W, CR 85-P-199-W and CR 85-HM-200-W.
    United States District Court, N.D. Alabama.
    Sept. 11, 1985.

      Frank W. Donaldson, U.S. Atty., Tommy E. Tucker, Asst. U.S. Atty., for the U.S.
    Henry Sanders, J.L. Chestnut, Jr., Selma, Ala., and John H. England, Tuscaloosa, Ala., and Chestnut, Sanders, Sanders, Turner & Williams, Birmingham, Ala., William Kunstler, New York City, and Thomas M. Meyer, Point Richmond, Cal., Carlos A. Williams, Birmingham, Ala., for defendants.
   MEMORANDUM OPINION

ACKER, District Judge.

On July 29, 1985, each of the defendants in these four cases either filed or adopted a motion attacking the fixing of the boundaries of the three federal judicial districts in Alabama as unconstitutional. This attack was based on the allegation that the boundaries were purposefully drawn in order to dilute the heavily black juror pool in the so-called Black Belt of Alabama by distributing it among the three federal districts. Upon being put to the proof, defendants wholly failed in their burden of proving that Congress had such an invidious intent in the early 1900’s when the districts were so drawn, and defendants’ motions to dismiss the indictments on this ground were denied on August 19, 1985. Defendants had on July 10, 1985, mounted an alternative attack on the system of jury selection. Their motions charged that “black persons, black males, rural residents, rural blacks and other cognizable groups in the Northern District of Alabama are systematically underrepresented in the pools for which grand and petit juries are chosen, and white males are systematically overrepresented, in violation of the Sixth Amendment requirement that juries be drawn from a cross-section of the community and in violation of the equal protection clause of the Fifth Amendment of the Constitution of the United States”. An evidentiary hearing was conducted on the issues presented by this motion. Defendants offered no evidence in support of many of the specific allegations of their motion. For instance, defendants offered no evidence to indicate any disparity or underrepresentation by black persons, black males, rural residents, or rural blacks. The focus shifted to three basic contentions:

1. That an alleged cognizable group of “white males” is systematically overrepresented in the jury pool in the Northern District.

2. That this alleged overrepresentation of “white males” is or may be occasioned by the use of voter registration lists in the 31 counties in the Northern District as the sole source for potential jurors.

3. That there are elements in the jury selection system which are not statistically “random” so that elements of subjectivity have crept into the system, rendering it constitutionally defective and violative of the federal statutory requirements for jury selection.

Defendants’ motions involve an across-the-board attack on two of the basic concepts contained in the jury plan employed as part of the federal judicial system in the Northern District: (1) district-wide jury selection as opposed to separate jury pools for the seven separate divisions within the Northern District; and (2) use of voter registration lists as the sole source of names for the original jury pool.

Roger Friedman, an expert witness offered by defendants, is a member of an entity known as the National Jury Project. He made no bones about his criticism both of the use of district-wide jury selection and of the exclusive use of voter registration lists for the jury pool. From a broad philosophical or political perspective a legitimate argument can be made against both of these practices employed by the Northern District. In fact this court would be the last to argue that the jury selection system it heard described in this evidence is perfect. However, “imperfect” and “unconstitutional” are not synonyms. Significantly absent from defendants’ argument is any citation of authority or any reference to any pronouncement by an appellate court controlling on this court, saying either that district-wide jury selection is unconstitutional or that exclusive use of the voter lists is unconstitutional. To the contrary, 28 U.S.C. § 1861, expressly recognizes that the district courts shall select their juries “[A]t random from a fair cross-section of the community in the district or division____” (emphasis supplied). Congress clearly recognizes the right of district courts to establish either of these alternative methods, “district-wide” or “by division”. Nothing in this language requires geographic subdivisions or any sort of geographic proportionality. Logic, of course, dictates that if a district-wide system is selected people in the various counties in the district must have an equal opportunity to serve on juries based on the respective relative populations of the various counties. There was nothing in the evidence, however, to indicate any such lack of proportionality in the Northern District. James E. Vandegrift, Clerk of this court, testified. He gave his own personal opinion that one reason the Northern District selected a district-wide jury selection system was to obtain a jury pool closely representative of the racial percentages across the entire district, no matter where the cause of action arises or in what division the case will be tried. Mr. Vandegrift’s opinion, if and only if it should inferentially reflect a concern of the Northern District itself, would not and does not manifest any racially invidious or discriminatory motive. If the writer, without any concrete evidence of the actual reasons for adopting a district-wide jury plan, were asked to deduce a rationale for it from his own observations, he might reason, based on his own experience sitting as a trial judge in four of the seven divisions within the Northern District, that not many district courts in the United States have as many as seven different divisions, with federal courthouses at eight different locations (the Northeastern Division has two courthouses), and further judicially knows that it would be a virtual administrative impossibility simultaneously to select and to impanel seven juries, each exclusively coming from residents in its separate division, all in one week. The seven active judges sitting on this court, even if the Northern District acquired a substantially increased staff charged with the jury selection process, would still find it awesome even to contemplate the logistics of impaneling seven separate juries, at seven separate locations, from several different jury pools, on one day. It would be an unholy mess. This court would assume that anyone charged with a reexamination of the decision to use a district-wide pool would look long and hard at all of the ramifications of a change.

The other sweeping criticism of the Northern District’s system is its exclusive use of voter lists to acquire the names of potential jurors. This criticism runs into the express recognition in 28 U.S.C. § 1863(b)(2), that lists of registered voters or lists of actual voters can be used. In the opinion of this court “actual voter lists” would create a narrower base than “registered voter lists”, and one less reflective of a cross-section than the voter registration lists themselves, and yet the statute would permit it. The lists used by the Northern District contain all registered voters, whether they voted in a particular prior election or not. The review panel of the Eleventh Circuit which in 1983 approved the jury plan suggested by the Northern District and subsequently adopted by the Northern District, obviously was aware that the Northern District’s system used the voter lists obtained from the voting officials in each county in the district. Furthermore, the Eleventh Circuit has specifically found that the use of voter lists as a sole source for potential jurors does not necessarily violate either the Sixth or the Fifth Amendment. Bryant v. Wainwright, 686 F.2d 1373, 1378 (11th Cir.1982). Some defendant may be able to persuade the Eleventh Circuit, or the Supreme Court, to steer a new course and to agree with the recent majority of the Supreme Court of California in People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433 (1984), which concluded that the exclusive use of voter lists for the jury pool is unconstitutional. Of course this expression by the Supreme Court of California is not controlling on this court, which finds the dissent of Justice Mosk at 679 P.2d 456, in which Justice Richardson concurred, more persuasive than the opinion of the California majority. Justice Mosk said in pertinent part:

If some counties choose to use lists other than the voters’ registration for selection of jury panels certainly they may do so. But is a county constitutionally compelled to do so, and if it does not, should its omission be deemed justification for reversal of a conviction obtained on overwhelming evidence? Unlike the majority, I would answer those questions in the negative.
I pause at the outset to observe that the statistics upon which the defendant relies contain a major gap. Dr. Butler’s survey revealed that on the Long Beach jury panels 5.5 percent were Black and 3.4 percent were Hispanic. He then takes a quantum leap to note that the estimated population figures for Los Angeles County —including persons who are under 18 and those who are aliens, legal and illegal — are 15 to 17 percent Black and 33 percent Hispanic in 1980.
The leading cases on the subject of jury selection (e.g., Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690; People v. Wheeler (1978) 22 Cal.3d 358, 148 Cal.Rptr. 890, 583 P.2d 748) require that a defendant be provided trial by an impartial jury drawn from a representative cross-section of the community. Our code uses the term “area served by the court” (Code Civ.Proc. § 197), not the county in which the court is situated. It takes only a cursory knowledge of the demography of Southern California to realize that Long Beach courts serve an area completely distinct in population characteristics from the totality of Los Angeles County. Indeed, Long Beach is closer to the county seat of Orange County (21 miles) than it is to the county seat of Los Angeles (23 miles). The defendant has produced no statistics relating to the ethnic composition of the community or area that is Long Beach, or from the supervisorial district in which the city is located (see Code Civ.Proc., § 206a). Figures for the entire County of Los Angeles are not only irrelevant but in this instance significantly deceptive.
On the more fundamental issue, I perceive no persuasive reason to prevent exclusive reliance on voters’ registration lists. They are specifically authorized by Code of Civil Procedure section 204.7. These lists include persons who are citizens, of legal age, men and women; they represent all parts of the community, the area and the county; they are drawn from all economic strata, every occupation, all races, religions and political ideologies.
Citizens may become registered voters at no cost and regardless of their ethnicity or financial well-being. This can be said of no other available list. Telephone books? Installation and use of a telephone costs considerable money these days, and, in addition, generally only the so-called “head of the household” is identified. Automobile registration lists? Ownership of an automobile indicates a certain financial status, and here also, except in an affluent family, often only one owner per household is listed. Bank records, credit card lists, department store accounts, welfare rolls? All of these are indicative of a certain economic status. Property tax rolls? Ownership of real property is limited to persons with resources. Income tax records? If the state were to permit their use, eliminated would be those whose income or exemptions required them to pay no tax.
There is even a $6 charge for one to obtain an identification card issued by the Department of Motor Vehicles pursuant to Vehicle Code section 13000 et seq., and $10 for a driver’s license pursuant to Vehicle Code section 12800 et seq. The lists of such licensees and ID card holders shall be used by jury commissioners “to the extent that systems for producing jury lists can be practically modified, without significant cost” (Code Civ.Proc., § 204.7). There are two answers to the rejection of these lists in the instant case: first, there is no showing that in a large metropolitan area this can be done “practically” without duplication and without significant cost; second, the lists do not represent a cross-section of the community, but only those persons with the initiative, motive and financial ability to apply for the licenses or identification cards, an effort considerably more complicated and costly than registering to vote. No statistics have been offered to indicate minorities are better represented on such lists than on voter registration lists, and there is good reason to believe they are not.
In short, any list one can suggest implies an elite status or a certain economic class and in most instances eliminates those of marginal or limited income. Only the voters’ registration permits all citizens over 18 to be listed at no cost whatever and with a bare minimum of effort. Indeed prior to each election the two major political parties, and most minor parties, conduct vigorous drives to encourage citizens — often minorities in particular — to register, and county registrars enlist hundreds of solicitors to be available on street corners and in shopping centers for that purpose.
Obviously citizens identified as being among the minorities cannot be coerced into exercising their civil duty to register and vote, but constant efforts are undertaken to persuade them to do so. Why minorities are said to be less interested than others in participating in the most important of the privileges of democracy is, if true, a mystery that requires more sociological and psychological study than can be undertaken with the superficial data offered in this case. In any event I suggest that any citizen — whether in the majority or minority population — who steadfastly ignores or avoids his simple civil duty to register and vote would be likely to ignore or avoid his more onerous civic duty to serve on a jury. And if he were by some means identified and reluctantly compelled to perform jury service he would in all likelihood not be a conscientious juror, a circumstance that might adversely affect a criminal defendant’s right to be tried by a serious and objective trier of fact.

Even if the view of the California majority should ever be embraced by the Supreme Court of the United States, its expression is not apposite in the instant case, because the defendants here offered no proof whatsoever that a different percentage of the black population than of the white population is registered to vote in the Northern District. For aught appearing in this record the registered voter rolls substantially mirror the distinctive cognizable groups in the overall community. The majority in People v. Harris did not find this to be true, and it was a crucial factor in their decision.

If the machinery used for jury selection in the Northern District is not deficient on its face, then, what about the results it has produced? Defendants contend that the Northern District’s system has produced a systematic over-representation of white males. This is defendants’ main contention. It bears careful analysis.

The first flaw in defendants’ alleged overrepresentation of “white males” is that “white males” does not constitute a cognizable group in the context of jury selection discrimination cases. Defendants have not cited a single judicial decision which recognizes “white males” as a “cognizable group”. Instead, they rely on the testimony of Alex Willingham, a political scientist who gave his opinion that white males share a cultural heritage and an attitude which, in his opinion, should cause them to be considered by the courts as a distinct sociological class. He offered a similar opinion about “Black Belt blacks”. Defendants abandoned any contention that “Black Belt blacks” are the victims of disparate treatment under the jury plan, rendering Dr. Willingham’s opinion as to “Black Belt blacks” academic. The court respectfully disagrees with Dr. Willing-ham’s idea that “white males” constitute a “cognizable group”. Not only does the court disagree with Dr. Willingham’s conclusions, but the court rejects the concept of adding together “cognizable groups” so as to make a separate “cognizable group”. An example of what defendants are here attempting can be stated as follows:

Blacks constitute a cognizable group. Females constitute a cognizable group. Persons below the poverty level constitute a cognizable group. Catholics constitute a cognizable group. The elderly constitute a cognizable group. A social scientist might, with complete honesty, argue for a merger of the black, female, poor, elderly Catholics and find that the percentage of the group thus combined is terribly underrepresented or terribly over represented in the jury pool.

Of course the same principle is equally applicable to a merger of two cognizable groups, “whites” and “males”. It is not blindness to reality or a reflection of white male chauvinism to venture the suspicion that there is as much commonality of perspective between white females and white males as there is between Black Belt blacks and Jackson County blacks. If one had a truly suspicious nature one might suspect that the hopeful creation of a new class of “white males” is occasioned by the failure, upon a close demographic examination of the records, to find any cognizable group previously recognized by judicial decisions reflecting the degree of disparity which would come even close to rendering the jury pool constitutionally deficient.

The second fatal flaw with defendants’ attack based on a “white male” class is defendants’ allegation that this group is “over represented”. Assuming arguendo defendants’ standing to complain of each and every alleged constitutional infirmity in the jury selection process, the court finds no decision dealing with the over representation of a particular group as a constitutional infirmity. Defendants’ primary reliance, is, as it must be, on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), in which the Supreme Court set out the elements for determining whether or not a cross-section exists. However, the Supreme Court spoke in terms of “exclusion” not “over-inclusion”, and of “underrepresentation” not “overrepresentation”. As recently as August 6, 1985, the Eleventh Circuit in Bowen v. Kemp, 769 F.2d 672 (11th Cir.1985), quoted Duren as follows:

[T]he defendant must show (1) that the group alleged to be exluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group and the jury-selection process.

P. 684 (emphasis supplied).

Perhaps if the jury plan in the Northern District called for jury selection by divisions and a Jackson County black should attack the system because blacks in the Northeastern Division are disproportionately Tinder represented when considered in relation to the total Northern District population, a legitimate question of alleged “under representation” would be presented. Here, however, the mere fact (if it be a fact) that “white males” are “over represented” does not implicate the Sixth Amendment.

Third, assuming arguendo that “white males” constitute a cognizable group, and that “overrepresentation” of such a group can render a jury selection process unconstitutional under the Sixth Amendment, the court nevertheless finds as a fact that “white males” are not “overrepresented” to a degree or in an absolute percentage which would implicate the Sixth Amendment. The Eleventh Circuit clearly holds that there must be a 10 per cent absolute disparity between the members of a cognizable group in the jury pool and those in a community as a whole before there is a Sixth Amendment question. United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984). The credible evidence in this case indicates no such absolute disparity. If Mr. Friedman’s findings were of a disparity in excess of 10 per cent, it was occasioned by a shortcoming in his statistical methodology.

The foregoing discussion has dealt with the Sixth Amendment. Defendants also charge a violation of the equal protection clause of the Fifth Amendment. While the Sixth Amendment “vouchsafes the right to be tried by a jury chosen from a group reflecting a fair cross-section of the community”, Bowen v. Kemp, p. 683, “the equal protection analysis employs a prima facie case test virtually identical to the one used in the fair cross-section analysis”. Bowen v. Kemp, p. 683. There is, however, this distinction between the two analyses. In order to prevail on an equal protection challenge, the defendant must show purposeful discrimination. Duren, 439 U.S. at 368, n. 26, 99 S.Ct. at 670, n. 26. “Hence, if the defendant makes out a prima facie case, the burden of proof then shifts to the state [federal government] to show the absence of discriminatory intent.” Bowen v. Kemp, p. 684, n. 7. Because in the instant case defendants have not made out a prima facie case of purposeful discrimination, the government was under no obligation to prove the absence of discriminatory intent. However, if the court’s analysis is incorrect and if defendants are deemed to have made a prima facie showing of “purposeful discrimination” by the Northern District that this court has failed to detect, then the court finds as a fact that the government did meet its burden showing the absence of discriminatory intent. No discriminatory intent to prefer white males existed at the time the jury plan was being designed or adopted by the Northern District.

Although not specifically alleged in their motions, defendants were allowed the freedom to attempt to prove a lack of the statutorily required “randomness” in the jury selection process. Defendants’ argument in this regard takes several tacks. Defendants first argue that the imperfection in the addresses of the voter registrants interrupts “randomness” and introduces an element of “non-chance”. Defendants have simply proven a “fact of life”, a fact which does not change the ultimate fact, namely, that the system was designed to operate in a purely random fashion. Next, defendants argue that a disproportionate number of requests for exclusion, and a disproportionate number of granted excuses, increases the overrepresentation of whites in the “recall pool”, thus introducing a non-random or subjective element where “recall” jurors are concerned. If such a criticism can reach a constitutional dimension, then the only way to preserve absolute randomness would be to provide no warning to those selected for jury service, to send the U.S. Marshal to the residence of each juror with a pair of handcuffs (with an ambulance in the event the juror should be on his death bed) in order to insure his or her attendance, and not to allow any excuses. Such a system would avoid any exercise of discretion by a judge to whom a request for excuse should be addressed, and there would be no occasion for granting an excuse, either permanent or temporary.

A second part of the charge that the system in the Northern District is not “random”, is based on the testimony of Gil Cash, the jury clerk, who testified that the jurors who obtain a temporary excuse and are therefore placed in the pool of “recall” jurors, are disproportionately white-to-black when measured against the general population and that in recognition of this undenied and undeniable fact he has, when using “recalls” not used purely random selection, but rather has picked more blacks than their percentage of the “recall” pool so that a particular venire will more closely reflect the white-black percentages within the total population. This criticism may have merit. However, assuming arguendo that defendants’ motions adequately present this question as to “recall” jurors, and further assuming arguendo that defendants have standing to complain of a subjective selection process which prefers blacks (especially where no “recall” jurors are being employed in any jury being called for these defendants’ four cases), the procedure is not only benign but its impact is de minimis. Under the “facts-of-life” analysis, the jury clerk is “damned if he does and damned if he doesn’t”. It is true that if he indulges in a little fudging in favor of blacks when using “recall” jurors, he violates the principle of random selection. If he does not do so, “recall” jurors will not be truly representative of the traditional cognizable groups. But, when examining any jury selection process for its “randomness” it must always be kept in mind that the definition of “randomness” employed by statisticians and the definition of “randomness” employed by the Eleventh Circuit in discrimination cases are not necessarily the same. The Eleventh Circuit’s definition for use by this court in this case is less stringent and less exacting than Mr. Friedman’s definition. United States v. Bearden, 659 F.2d 590, 602 (5th Cir.1981). A mere technical deviation from statistical perfection does not place an entire jury system in constitutional jeopardy. United States v. Gregory, 730 F.2d 692, 699 (11th Cir.1984). In terms of pure statistical randomness, the legitimate criticism of the system would be that the “universe” is skewed and not representative of the total population where the original pool either automatically excludes or allows excuses by non-English speakers, physicians, dentists, registered nurses, persons over 70 years of age, persons actually caring for a child under 10 years of age, soldiers, sailors, marines, coastguardsmen, airmen, policemen, firemen, FBI agents, public officials (including executive, legislative and judicial officers), persons with mental infirmities, persons with physical infirmities, persons with felony convictions, and perhaps others. It might be possible for Mr. Friedman, or Mr. Vandegrift, or Mr. Cash, or defendants’ counsel, or the Administrative Office of the United States Courts, or even the writer of this opinion, to devise a plan which is better in several respects than the plan here under attack. For instance, if the use of a “recall” pool creates an absolute “disparity” beyond the permissible 10 per cent causing an underrepresentation of a cognizable group, and if Mr. Cash’s personalized solution is unsatisfactory (which this court thinks it is), then perhaps a solution would be to forgive jurors who have a legitimate reason for not appearing for the venire for which they were summoned not temporarily but permanently and not to create a pool of “recalls”. The questions in this case, however, are not whether the jury plan can be improved upon, and if so, how, but rather whether the plan, as it now exists, is constitutional. To this question the answer is “yes”.

An order denying defendants’ motions was entered on August 26, 1985. It recognized the court’s obligation subsequently to write the foregoing opinion containing findings of fact and conclusions of law.


source: Caselaw Access Project

author: CALDWELL, District Judge.

license: Public Domain

text:
    Vivian M. RODE, Plaintiff, v. Nicholas G. DELLARCIPRETE, John Harhigh, Josephine Fure, Ruth Brown, Robert Kinch, Pennsylvania State Police, and Commonwealth of Pennsylvania, Defendants.
    Civ. A. No. 85-0791.
    United States District Court, M.D. Pennsylvania.
    Sept. 11, 1985.

      Laurence W. Dague, Harrisburg, Pa., Dianne E. Dusman, Hummelstown, Pa., for plaintiff.
    James J. Kutz, Deputy Atty. Gen., Harrisburg, Pa., for Dellarciprete, Harhigh, Fure, Brown and Kinch.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction

Plaintiff, Vivian Rode, filed a complaint alleging that defendants have violated her civil rights under 42 U.S.C. §§ 1983 and 1985. More specifically, plaintiff claims that defendants, the Commonwealth of Pennsylvania (“Commonwealth”) and the Pennsylvania State Police (“PSP”) have violated her first amendment rights by enacting and enforcing certain administrative regulations which prohibit employees from disseminating information concerning the PSP. These defendants have moved to dismiss the complaint made against them pursuant to Fed.R.Civ.P. 12.

II. Background

In May of 1983, plaintiff, an employee of the PSP, consented to an interview with a newspaper reporter from the Paxton Herald in which she told the reporter that she was being harassed by members of the PSP. On June 1, 1983 an article appeared in the Herald which resulted in the initiation of disciplinary action against plaintiff by the PSP. On June 9, 1983 a hearing was held and plaintiff was given a three (3) day suspension for violating Administrative Regulation 4-6, which requires confidentiality concerning the official business of the PSP, and prohibits employees from publicizing information relating to the PSP without prior approval.

III. Discussion

In count III of the complaint, plaintiff alleges that regulation 4-6 is unconstitutionally overbroad and vague. She requests an order declaring the regulation unconstitutional and seeks a permanent injunction restraining its enforcement. Defendants, however, argue that plaintiff’s claims against them should be dismissed because (1) they are not “persons” for purposes of §§ 1983 and 1985 and (2) plaintiff’s claims are barred by the Eleventh Amendment to the United States Constitution. We agree.

Plaintiff has brought this action pursuant to 42 U.S.C. §§ 1983 and 1985 which expressly provide that only “persons” may be held liable. Although the term “persons” is to be liberally construed, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) not all entities are considered to be “persons.” It is well settled that a state and its agencies are not “persons” under §§ 1983 and 1985. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thompson v. State of New York, 487 F.Supp. 212, 228 (N.D.N.Y. 1979); Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F.Supp. 963, 975 (E.D.Pa.1977). Applying this analysis it is clear that the Commonwealth and PSP, as an agency of the Commonwealth, are not “persons” within the meaning of §§ 1983 and 1985.

We also find that plaintiffs claim against defendants is barred by the Eleventh Amendment. This Amendment provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

As interpretated, the Eleventh Amendment prohibits a suit (to which the state has not consented) “in which the State or one of its agencies or departments is named as a defendant.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, —, 104 S.Ct. 900, 908, 79 L.Ed.2d 67, 78 (1984). This bar “applies regardless of the nature of relief sought.” Id.

Plaintiff contends that defendants waived their Eleventh Amendment immunity by virtue of agreeing to the consent decree entered in Bolden v. Pennsylvania State Police, 371 F.Supp. 1096 (E.D.Pa. 1974). In Bolden, the PSP agreed to establish a series of regulations concerning its employment practices in order to eradicate the effects of alleged past discrimination. Defendants, not surprisingly, disagree with plaintiff’s premise. For the following reasons we find that defendants have not waived their immunity.

Plaintiff cites three cases to support her position that consent decrees operate as a waiver of a state’s Eleventh Amendment immunity: Vecchione v. Wohlgemuth, 558 F.2d 150 (3d Cir.), cert. denied, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977), New York State Association for Retarded Children, Inc. v. Carey, 596 F.2d 27 (2d Cir.1979), Jordan v. Fusari, 496 F.2d 646 (2d Cir.1974). These cases, however, fail to bear upon the issue before us because in each case the plaintiff brought suit against an individual, not against a state or its agency.

Furthermore, even if the Commonwealth did waive its immunity by agreeing to the Bolden consent decree, we find that plaintiff’s claim would still be barred. Although a state may waive its immunity, courts are reluctant to find a waiver unless there has been an unequivocal expression of consent by the state. Pennhurst, supra, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Bolden consent decree dealt only with the allegedly discriminatory aspects of the PSP’s employment practices, not with protecting First Amendment rights. Thus, the consent decree could only operate as a waiver, if at all, in cases alleging the form of discrimination prohibited by the decree. The allegations against the Commonwealth and the PSP concern only the constitutionality of regulation 4-6 on First Amendment grounds and defendants, by entering into the Bolden consent decree, have not waived their immunity with respect to plaintiff’s claims. Based upon these considerations defendants’ motion to dismiss will be granted.

An appropriate order will be issued.

      . Counts II and III are comprised of claims against the individual defendants who are not parties to the motion we are considering.

      . Under §§ 1983 and 1985, the term "persons” has the same meaning. An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (W.D.Mich.1980); Thompson v. State of New York, 487 F.Supp. 212 (N.D.N.Y.1979).

      . The cases do support the position taken by defendants in their brief — that the Eleventh Amendment does not prohibit plaintiff from suing the appropriate state official. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).


author: DAN M. RUSSELL, Jr., District Judge.

text:
    Jerry T. BUTLER and Jennifer L. Butler, Plaintiffs, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendant.
    Civ. A. No. H84-0242(R).
    United States District Court, S.D. Mississippi, Hattiesburg Division.
    Sept. 11, 1985.
    Robert F. Drake, Hattiesburg, Miss., Thomas L. Casey, Laurel, Miss., for plaintiffs.
    Kenna L. Mansfield, Jr., Jackson, Miss., for defendant.
   MEMORANDUM OPINION

DAN M. RUSSELL, Jr., District Judge.

This cause is presently before the Court on cross-motions for summary judgment. The plaintiffs, husband and wife, seek to recover certain amounts alleged to be due under a group insurance policy issued by the defendant, together with punitive and other extra-contractual damages. The plaintiffs argue that their position is supported by the public policy articulated by the Mississippi Supreme Court in Brown v. Blue Cross and Blue Shield of Miss., 427 So.2d 139 (Miss.1983), Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d 920 (Miss. 1980), and Locomotive Engineers’ Mutual Life & Accident Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699 (1930). The defendant attempts to distinguish the above cases, argues that Mississippi law has been superseded by federal law, and asserts alternatively that the defendant is not liable for any punitive or extra-contractual damages.

The facts of this case are relatively simple. Prior to January 12, 1984, plaintiff, Jerry T. Butler, was an employee at DAP-SCO, Inc. (“DAPSCO”) in Laurel, Mississippi. On October 1, 1977, the defendant issued its Group Policy No. H206 (“the policy”) to DAPSCO, as policyholder, insuring certain employees of DAPSCO and their dependents according to the terms and provisions of the policy. The group policy as issued to DAPSCO was amended, effective May 25, 1979, to comply with Pregnancy Discrimination Amendment, to Title VII of the Civil Rights Act of 1964. Insurance coverage for Jerry T. Butler, including maternity benefits for Jennifer L. Butler, became effective on December 18, 1981. Monthly premiums were withheld from Jerry T. Butler’s payroll checks for his dependent’s coverage.

In August of 1983, Jennifer L. Butler was initially diagnosed as being pregnant. She visited her doctor on several occasions in connection with her pregnancy from August, 1983 through January 12, 1984. The defendant fully paid all claims submitted for pregnancy incurred prior to January 12, 1984. On January 12, 1984, Jerry T. Butler was laid off from his employment at DAP-SCO due to lack of work. On April 11, 1984, Jennifer Butler gave birth to a child, approximately seventy (70) days subsequent to the termination of Jerry Butler’s employment and the termination of his coverage under the group policy.

The defendant’s position is that plaintiffs’ claims were not covered under the terms of the policy, and it declined to pay any amount for pregnancy related expenses incurred subsequent to the termination of Jerry Butler’s employment. The group policy was not cancelled either by DAPSCO or by the defendant. In fact, the group policy remains in full force and effect insuring the employees of DAPSCO.

The policy provision in question provides that the coverage of an employee and an employee’s insured dependents terminates upon the termination of his employment with DAPSCO, as follows:

The insurance with respect to any individual employee shall terminate as the earliest date determined in accordance with the following provisions:
(f) The date the employee’s active employment with the group policyholder is terminated,____”

The policy does not contain any provision for the payment of pregnancy related expenses subsequent to the termination of Jerry Butler’s coverage. The policy defines the term “illness” as including pregnancy or pregnancy related conditions. Therefore, pregnancy is treated on the same basis as any other illness under the terms of the policy. The policy’s insuring clause specifies that benefits are payable only for expenses relating to an illness or injury, as those terms are defined in the policy, and that the expense must be incurred while the insured individual is covered under the policy.

The plaintiffs contend that defendant is precluded from termination of the plaintiff’s coverage for pregnancy related expenses based upon the public policy of this State as espoused in Brown v. Blue Cross & Blue Shield of Miss., 427 So.2d 139 (Miss.1983), Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d 920 (Miss.1980), and Locomotive Engineers Mutual Life & Accident Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699 (1930). In Brown, Jerry Brown was employed by Corr-Williams Tobacco Company. Brown’s employer had in effect a group policy with Blue Cross which covered maternity benefits. The Browns, relying upon such coverage, planned and conceived a child in October, 1975, after the required waiting period had expired. Mrs. Brown gave birth to a son in July, 1976, resulting in medical and hospital expenses. In February, 1976, the employer had terminated its group policy with Blue Cross without notification or consultation with the Browns. The replacement policy carried no maternity benefits and the cancellation precluded the Browns from obtaining adequate insurance. It was Blue Cross’ position that it had a contractual right to terminate all benefits under the policy without consideration to the beneficiaries who made plans in reliance thereon and had irrevocably committed themselves to incur expenses for which they anticipated at least partial payment under the policy. The Mississippi Supreme Court dispelled Blue Cross’ contention relying primarily upon the Gulf Guaranty decision.

In Gulf Guaranty, the insured procured a credit life insurance policy through a Lucedale bank on June 28, 1975. He suffered a heart attack on July 1, 1975. The insurance company learned of the heart attack on July 18, 1975, and cancelled the policy relying upon its contract language which gave the insurance company the absolute right to cancel at any time within ninety (90) days from the date of issue. The Mississippi Supreme Court recognized the contractual rights of the insurance company to cancel the policy, but held Gulf Guaranty was estopped to cancel as a matter of public policy:

Defendant argues it had the absolute right under the terms of its master policy to cancel the certificate of insurance issued to Kelley within 90 days from the date of issue. Ordinarily, this defense would be upheld; however, in this ease the onset of Kelley’s fatal illness occurred after the policy was in effect and continued without remission until his death. Considerations of public policy persuade us that, exercise by the insurer of its right to cancel should not be permitted after the onset of a fatal illness and death therefrom, upon the ground of estoppel. In Volume 3A of Appleman’s Insurance Law and Practice, ¶ 1813, the author states:
And where the company has accepted the premium on a policy and the insured has relied on its protection, the company is estopped to cancel the policy after the insured has reached such a physical condition that he cannot obtain desirable insurance on his life in any reputable company. [Mutual Benefit Life Ins. Co. v. Robison, C.A. Iowa 1893, 54 F. 580, 598].

Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d at 922.

Getting back to the Brown case, the court went on to reverse and remand the case for trial on the merits with consideration to the public policy set forth in Gulf Guaranty. The Court in Brown also noted in footnote that “liability might be predicated” upon an Alabama decision, Blue Cross-Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807 (1966) cert. denied 280 Ala. 709, 195 So.2d 814 (1967) wherein the Alabama Court of Appeals held in pertinent part that

[liability of the insurer attached at the moment of the insured’s conception, regardless of the possibility of occurrence of events relieving it of liability. Appellee’s interest in the policy was obtained through an expenditure of her and her husband’s own money. This interest is sufficient to prevent cancellation or modification if such prevents the insured from timely exercise of any conversion privilege which may be available to her under the terms of the policy or, where such privilege is not given, if it prevents her from reasonably obtaining similar insurance protection on her own account elsewhere.

Turner, supra, 43 Ala.App. at 546, 195 So.2d at 810.

The plaintiffs contend that they were economically precluded from exercising their conversion privilege and were likewise precluded from obtaining any maternity benefits coverage elsewhere. The defendant asserts that Jerry T. Butler was notified of his right to convert his coverage under the group policy to an individual policy of insurance and cites his deposition which corroborates the assertion. A question remains, however, as to the cost of the premium for the conversion policy and also the extent of coverage provided by the conversion policy, i.e., whether the plaintiffs were able to obtain reasonably similar insurance protection.

Rule 56(c) authorizes summary judgment only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Court must view the evidence presented in a light most favorable to the party opposing the motion, resolving all doubts in any of the facts against the movant. Breen v. Centex Corp., 695 F.2d 907 (5th Cir.1983). The Court is limited to an inquiry into whether a genuine issue of material fact remains for trial “ ‘so as to insure that factual issues will not be [decided] without the benefit of the truth-seeking procedures of a trial.’ ” Southern Distributing Co. v. Southdown, Inc., 574 F.2d 824, 826 (5th Cir.1978), quoting from Jackson Tool & Die, Inc. v. Smith, 339 F.2d 88, 91 (5th Cir.1964). Whether the Court is of the opinion that the movant’s set of facts are more believable or convincing, or that he is more likely to prevail on the merits is of no moment. Jones v. Western Geophysical Co. of America, 669 F.2d 280 (5th Cir. 1982). “If reasonable minds might differ on the resolution of any material fact or even on the inferences arising from the undisputed facts, summary judgment must be denied.” Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 496 (5th Cir. 1982); Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir.1982).

The facts thus far presented to the Court as to the issue of ultimate liability under the contract of insurance remain unsettled. Therefore, the Court will refrain from the granting of summary judgment on the issue of liability. On the other hand, the Court feels the resolution of the issue of punitive damages involves no factual determinations and is merely a question of law.

The awarding of punitive damages should be allowed only within narrow limits since they are. assessed as an example and warning to others. Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239, 247 (Miss.1978). In the recent Mississippi Supreme Court case of State Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242 (1985), the Court reviewed its previous decisions concerning punitive damages. In general, the longstanding rule in this jurisdiction is that punitive damages are not recoverable for the breach of contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. Simpson citing Lincoln Nat. Life Ins. Co. v. Crews, 341 So.2d 1321, 1322 (Miss.1977); Progressive Casualty Ins. Co. v. Keys, 317 So.2d 396, 398 (Miss.1975); Seals v. St. Regis Paper Co., 236 So.2d 388, 392 (Miss.1970); Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 150-51, 141 So.2d 226, 233 (1962); D.L. Fair Lumber Co. v. Weems, 196 Miss. 201, 221-22, 16 So.2d 770, 773 (1944); American Ry. Express Co. v. Bailey, 142 Miss. 622, 631, 107 So. 761, 763 (1926); and Hood v. Moffett, 109 Miss. 757, 767, 69 So. 664, 666 (1915).

Of course, the denial of an insurance claim does not in itself support a subsequent claim for punitive damages. If an insurance company is found to have an arguable reason in not paying a claim, punitive damages will not lie. Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So.2d 833, 842 (Miss.1984); Reserve Life Ins. Co. v. McGee, 444 So.2d 803 (Miss.1983); Consolidated American Life Ins. Co. v. Toche, 410 So.2d 1303 (Miss. 1982).

In addressing the term “arguable reason” and the actual required severity of an insurer’s conduct to sustain a claim for punitive damages, the Mississippi Supreme Court in Simpson, p. 250, stated:

The term ‘arguable reason’ does not diminish the rule regarding the resolution of punitive damages because the assessment is no different in ‘bad faith’ cases than in other punitive damages cases. Standard Life v. Veal, supra, provides that punitive damages will not lie if the carrier has an arguable reason for denying the claim. It does not necessarily follow, however, that punitive damages are mandated by the absence of an ‘arguable reason’. This is so because the denial of a claim could be the result of an honest mistake or oversight — ordinary or simple negligence — not reaching the heightened status of an ‘independent tort’ as set out in Veal, supra, and other cases.
>}S * S{C }(c :)« *
We are of the opinion the term ‘legitimate or arguable reason’, although spawning much comment in our cases and in briefs and arguments of counsel, is nothing more than an expression indicating the act or acts of the alleged tortfeasor do not rise to the heightened level of an independent tort. Additionally, the very term expresses the holding of this Court establishing a distinction between ordinary torts, the product of forgetfulness, oversight, or the like; and heightened torts, which are the product of gross, callous or wanton conduct, or, if intentional, are accompanied by fraud or deceit. Lincoln Nat’l. Life Ins. Co., supra.
This is only to say that not all denied claims constitute the gross, wanton or intentional conduct essential to the creation of an independent tort for which punitive damages will lie. ‘The mere fact that Lincoln rejected the claims under the provisions of its policy and defended the suit and lost does not justify imposition of punitive damages,’ Lincoln National Life Ins. Co. v. Crews, 341 So.2d at 1322. And see Blue Cross & Blue Shield of Miss. v. Campbell, supra; Bellefonte Ins. Co. v. Griffin, 358 So.2d 387 (Miss.1978).

In the case at bar, the defendant has denied coverage under their group policy based upon a valid policy provision. Neither Brown nor Gulf Guaranty held that cancellation provisions based upon an employee’s termination of employment were invalid. Those cases merely held that public policy considerations in certain circumstances estop an insurance company from cancelling their policy. Furthermore, the court in Brown stated that “[i]t will be for the determination of the trial court, following a hearing on the merits, as to liability under the contract, or whether the principles enunciated herein are applicable to this case. We only decide in this opinion that the declaration stated a cause of action.” Brown, supra, 427 So.2d at 141. The court thus dodged a firm rule of law holding that as a matter of law Blue Cross was estopped from assertion of their cancellation provisions. Similarly, while denying to uphold Blue Cross’ cancellation provisions based upon public policy, the court stated in footnote 2 that “liability might be predicated under Blue Cross-Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807 (1966) cert. denied, 280 Ala. 709, 195 So.2d 814 (1967), ...” Brown supra, 427 So.2d at 141. This Court cannot hold that the defendant lacked an arguable reason based upon such ambiguous language. The defendant had an arguable reason for not paying the claim. Therefore, the plaintiffs’ claims for punitive damages will not lie.

Finally, the defendant has raised one other contention which needs to be addressed. The defendant contends that Mississippi law is superseded by federal law in this case. The defendant asserts that should Mississippi law be applied to this case, the result would be inconsistent with the provisions of Title VII, which include by virtue of the Pregnancy Discrimination Amendment (“PDA”), discrimination on the basis of pregnancy. 42 U.S.C. § 2000e-2(a); 42 UU.C. § 2000e(k). The analysis begins with Title VII’s preemption provisions, 42 U.S.C. § 2000e-7 and 42 U.S.C. § 2000h-4.

Nothing in this subchapter shall be deemed exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be unlawful employment practice under this sub-chapter.

42 U.S.C. § 2000e-7 (emphasis supplied).

Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.

42 U.S.C. § 2000h-4 (emphasis supplied).

The reach of Title VII’s preemption provisions is narrow. California Federal Savings & Loan Ass’n v. Guerra, 758 F.2d 390, 394 (9th Cir.1985). “Title VII does not itself prevent States from extending their nondiscrimination laws to areas not covered by Title VII____” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The question thus presented is whether the public policy embraced by the Mississippi Supreme Court in Brown and Gulf Guaranty is “unlawful” under or “inconsistent” with Title VII.

The defendant puts forth a hypothetical man who contracts diabetes and asserts that there would be no question that a medical expense for his diabetic condition incurred seventy (70) days after termination of his employment would not be payable under the policy even though the diabetes may have had its inception while this man was covered under the policy. The Court could not argue with such an assertion. However, take the hypothetical man who contracts a hypothetical ailment; begins treatment with the expectation that the treatment will end with an operation within three months; and is then terminated prior to that operation. Would not this Court apply the same criteria and same considerations as set out in Brown and Gulf Guaranty? The answer surely would be in the affirmative. The defendant seeks to compare the long-term disease of diabetes with the nine month pregnancy, a comparison of apples with oranges. The Court fails to see any unlawfulness or inconsistencies with Title VII in the application of Mississippi public policy considerations to a question of liability under the group policy in question.

In conclusion, the Court denies the plaintiffs’ motion for partial summary judgment and grants the defendant’s motion for summary judgment in part as to the plaintiffs’ claim for punitive damages.

An Order in accordance with this Opinion shall be provided as set forth in the Local Rules.


author: JOHN Y. PARKER, Chief Judge.

text:
    JHJ LIMITED I v. CHEVRON U.S.A., INC.
    Civ. A. No. 82-0882-A.
    United States District Court, M.D. Louisiana.
    Sept. 11, 1985.

      F. Neelis Roberts, Gordon, Arata, McCo11am, Stuart & Duplantis, New Orleans, La., for plaintiff.
    John C. Christian, M. Taylor Darden, Milling, Benson, Woodward, Hillyer, Pier-son & Miller, New Orleans, La., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN Y. PARKER, Chief Judge.

This matter has been tried on the merits. Other aspects of this action have been previously considered by the court. JHJ Limited I v. Chevron U.S.A., Inc., 580 F.Supp. 6 (M.D.La.1983). Trial of the defendant’s counter-claim and of the defendant’s third party demand has been severed from the main demand. The main demand has been tried upon a written stipulation of facts which is hereby adopted by reference.

This action was instituted in the Twenty-first Judicial District Court for the Parish of Livingston, Louisiana, and was removed by Chevron. Plaintiff is a Texas limited partnership with its managing and general partners being citizens of Texas. Chevron is a California corporation with its principal place of business in California. The matter in controversy exceeds $10,000, exclusive of interest and cost. This court has jurisdiction under 28 U.S.C. § 1441(a).

The stipulated facts may be summarized as follows: Chevron is the lessee in an oil, gas and mineral lease dated November 10, 1973, referred to as the Wunsch lease, covering some 127 acres of land situated in Livingston Parish.

By an order dated October 15, 1981, the Commissioner of Conservation created a unit (the S Unit) which included about 89 acres of Chevron’s Wunsch lease. The Commissioner ordered that each tract included in the unit was to share in production from the unit well in proportion to the surface area each tract bears to the entire surface area of the unit. The unit was created for the purpose of insuring orderly mineral development, to prevent waste and to avoid the drilling of unnecessary wells.

Although Chevron received timely notice of the unit application and the hearing thereon, it chose not to participate in or oppose the proceedings.

The Commissioner’s order designated Celt Oil Co., Inc. as the unit operator and Celt requested Martin Exploration Company to handle the engineering aspects of the drilling of the unit well.

The Commissioner chose Chevron’s Wunsch lease as the surface location for the S Unit well. Again, Chevron had notice of this hearing but chose not to attend or to participate.

Chevron agreed to let Martin use its Wunsch lease surface rights but refused to participate in the cost of the drilling of the well. Subsequently, Martin was designated as unit operator, vice Celt.

JHJ Limited I agreed with Martin to drill the unit well on the Wunsch lease. The well was spudded in on January 15, 1982. Chevron was not a party to this agreement.

Subsequently, Chevron granted a farm-out agreement to Martin covering that portion of the Wunsch lease (about 89 acres) which was included in the S Unit, effective March 1, 1982. Under the farmout agreement, Martin would earn an interest in the lease if the well drilled at its sole cost produced minerals in paying quantities.

Between January 4 and June 30, 1982 JHJ provided Martin with oil and gas drilling equipment, supplies and services in connection with the drilling of the well and conducted drilling operations.

In June 1982, when the well had reached a depth of 19,954 feet, Martin suspended operations and no further operations have taken place since then. The well has never been completed as a commercial producer and Martin has never earned any interest in the Wunsch lease.

Martin is unable to pay JHJ the balance owed for services rendered and equipment furnished in connection with the drilling of the well. After granting all credits to which Martin is entitled, the sum of $1,810,594.29 remains due to JHJ for the oil and gas drilling equipment, supplies and services provided by it in the drilling of the Wunsch well.

JHJ has filed three affidavits in the mortgage records of Livingston Parish, Louisiana, claiming a lien and privilege on Chevron’s Wunsch lease under the provisions of LSA-R.S. 9:4861 et seq., the Louisiana Oil Well Lien Act. These affidavits meet the procedural requirements of the Act and this suit was timely filed to preserve whatever lien rights, if any, JHJ may have under the statute.

Portions of the Wunsch lease have also been force pooled into two other units by orders of the Louisiana Commissioner of Conservation, the H Unit and the F Unit. Unit wells on both of those units have been successfully completed and Chevron’s Wunsch lease has a working interest in all production from each of those wells. Neither well is physically located on the Wunsch lease and Chevron’s participation in the production arises solely from the force pooling orders of the Commissioner.

JHJ did not render any services or furnish any machinery or equipment in connection with the drilling of either of the other two unit wells, the F Unit or the H Unit.

Under these stipulated facts, plaintiff claims that the Louisiana Oil Well Lien Statute grants it a privilege or lien upon the entire Wunsch lease including Chevron’s share of the production from the F Unit and the H Unit wells, neither of which are located upon the Wunsch lease. Chevron argues that it would be at best inequitable, at worst unconstitutional, to extend the effect of the privilege beyond the limits of the S Unit established by the Commissioner of Conservation upon which sits the well drilled by JHJ under its contract with Martin.

The Louisiana statute, LSA-R.S. 9:4861 grants a privilege or lien to “any person who performs any labor or service” and to any person who “furnishes any fuel, drilling rigs, standard rigs, machinery, equipment, material or supplies” in connection with the drilling of a well to search for oil, gas or water, inter alia, “... on all oil or gas produced from the well or wells and the proceeds thereof inuring to the working interest therein, and on the oil, gas or water well or wells and the lease whereon the same are located ...” (emphasis supplied).

Although no Louisiana appellate court has passed upon this precise question, this court has little difficulty in concluding that the statute means exactly what it says — a supplier of well drilling services and equipment is granted a privilege upon “the lease whereon” the well is located. The well drilled by JHJ is located upon the Wunsch lease. Accordingly, JHJ is entitled to a privilege upon the Wunsch lease.

Chevron’s argument to the contrary presents a convoluted, serpentine trail through the Louisiana conservation laws concluding with the proposition that, for purposes of the Oil Well Lien Act (but for no other purpose) the action of the Commissioner of Conservation in force pooling three different areas of the Wunsch lease with other leases had the effect of dividing the lease “for operational purposes” into three separate and independent tracts thus limiting JHJ’s privilege to the area of the Wunsch lease included in the S Unit, where the well was drilled. Since the well was not completed as a producer, a privilege upon that portion of the Wunsch lease would be of little benefit to JHJ.

Both sides agree that Louisiana’s conservation laws represent a valid exercise of the state’s police power to conserve its mineral resources and that orders issued by the Commissioner of Conservation within the area of his delegated authority nullify and supercede private contractural rights which are in conflict with those orders. Hunter v. McHugh, 320 U.S. 222, 64 S.Ct. 19, 88 L.Ed. 5 (1943); Monsanto Chemical Co. v. Southern Natural Gas Co., 234 La. 939, 102 So.2d 223 (1958). The unitization or pooling of different tracts into one production unit is based on the very practical notion that the limits of any reservoir of hydrocarbons is determined not by property lines but by subsurface geological facts. Accordingly, one common pool may be located beneath parts or all of numerous tracts of land; conversely, one tract of land might contain hydrocarbons which are found in different pools and the pools may also underlie other tracts of land. It is the duty of the Commissioner of Conservation to develop the natural resources without waste and with due regard to conservation principles. See LSA-R.S. 30:4. Thus, when the Commissioner of Conservation determines the limits of a reservoir, orders the pooling of tracts and designates the location of a unit well, he has determined the location which will drain that common pool to the best advantage of all whose land may lie above it, as well as for the best interest of the state. See LSA-R.S. 30:9.

Thus the Wunsch lease then has been determined to include parts of three reservoirs or pools. One such pool, the Martin Unit well drilled by JHJ, is a dry hole; the other two are both producers. Since the F Unit well and the H Unit well are both producing from reservoirs, each of which includes a portion of the Wunsch lease, the Commissioner’s order includes the requirement that a portion of that production be paid to that lease.

Louisiana’s courts have recognized this difference between surface contract rights and subsurface geological facts. Where all or a part of a tract of land is included in a unit order by the Commissioner, but the well drilled into the common pool is not drilled on that tract, the lessor and lessee receive the same revenue as they would have received if the well had been located on their tract and neither could recover any more even if the well had in fact been drilled on their lease. Thus, production derived from the common pool through a well located upon another tract fulfills the lessee’s drilling obligation upon the entire tract and extends the primary term of the lease upon the entire area leased. Hardy v. Union Producing Co., 207 La. 137, 20 So.2d 734 (1944); Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10 (1947).

The orders of the Commissioner of Conservation regulating the development of the various underground pools in the vicinity of the Wunsch lease have no effect upon and are not in conflict with the private eorlfractural undertakings between the various landowners, lessees and operators. Accordingly, the Commissioner’s order has not divided the obligation of the Wunsch lease and Chevron is the first to point out that production from either the F Unit well or the H Unit well maintains Chevron’s Wunsch lease in its entirety, despite the admitted fact that neither well is located upon the Wunsch land. Neither the subsurface geology nor the Commissioner’s order conflicts with or serves to change the obligations of the Wunsch lease (except the obligation to drill on the land); Chevron still has a single lease covering the entire acreage and LSA-R.S. 9:4861 unambiguously grants to the supplier of labor, material and equipment, a privilege on “the lease whereon” the well is drilled. This well is located on the Wunsch lease; JHJ has a privilege on the entirety of that lease.

Chevron next argues that such a construction calls the Louisiana Oil Well Lien Act into constitutional question. Asserting that as a “carried interest” in the Wunsch well, who did not initiate the unitization proceedings, did not join in the drilling of the well, did not participate in the selection of the well site and refused to join in paying the cost of the proposed well, Chevron would be liable to the operator for only its proportionate share of the well drilling cost and only out of production; LSA-R.S. 31:177, Chevron then argues that the recognition of a privilege against the entire lease amounts to an unconstitutional taking of its property in violation of the Fourteenth Amendment.

Chevron’s argument is wanting. It should first be noted that Chevron incurs no personal liability to JHJ. The privilege is strictly in rem, against the property (lease) only. Second, as an abstract proposition, if the evidence here showed that, through orders of the state, without Chevron’s knowledge or consent, a well were drilled upon its lease and that the well produced no benefit to Chevron, it might have some complaint of constitutional dimension. This well, however, was not drilled over Chevron’s protest or in the dead of night without its knowledge and consent. The stipulated facts show that Chevron consented to the drilling of the well on its lease; first, it granted Martin surface rights to drill the well on the lease and second, it later actually entered a farm-out agreement with Martin under which it specifically consented to Martin’s drilling the well.

Chevron took these actions being held to knowledge of the provisions of the Louisiana Oil Well Lien Act. The purpose of that Act is to protect those, like JHJ, who contribute labor, services and equipment to the drilling of wells from the default of those who engage them. Standard Supply and Hardware Co. v. Humphrey Bros., 209 La. 979, 26 So.2d 8 (1946). The privilege granted by that statute attaches to all property listed in the statute, regardless of ownership, Blankenship v. Stovall, 159 So. 477 (La.App. 2d Cir.1935), and requires no contractural relationship between the supplier and the owner of the lease. Oil Well Supply Co. v. Independent Oil Co., 219 La. 936, 54 So.2d 330 (1951).

The parties differ over whether Chevron gained any benefit from the drilling of the well on its lease by Martin. While a finding of benefit to Chevron is not necessary to the decision in this case, because Chevron consented to the drilling of the well, it can be noted that Chevron gained exactly the same benefit that any other mineral lessee gains by the drilling of a dry hole on its lease. One such benefit is fulfillment of the mineral lessee’s obligation to develop the property in a reasonable and prudent manner which Louisiana courts have long recognized, see e.g. Carter v. Arkansas Louisiana Gas Co., 213 La. 1028, 36 So.2d 26 (1948), and which is now included in the Mineral Code, LSA-R.S. 31:122. Surely Chevron would take the position with its lessors that the drilling of the Martin well fulfilled Chevron’s obligation to develop the lease.

The Louisiana Oil Well Lien Act is purely economic legislation; it involves no fundamental federal right and affects no suspect class. Thus, under both substantive due process and equal protection analysis, the federal Constitution requires only that the state statute be rationally related to a legitimate state goal. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). The question of the wisdom or utility of such legislation is for the legislature, not the courts. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). Here regulation and conservation of Louisiana’s minerals is a legitimate state interest, as is the protection of persons who perform labor or furnish services in connection with the drilling of oil, gas and water wells. Granting a lien on the entire lease where the activity giving rise to the lien occurred is rationally related to these state interests and it is not for this court to say that the legislature might have more logically limited the lien as argued by Chevron. Wilson P. Abraham Const. Co. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir.1979).

Chevron urges that this court should follow the lead of a Louisiana district judge who has apparently accepted Chevron’s constitutional argument in litigation pending against it in state court. With due deference to my state court Brother, Chevron’s argument of unconstitutionality under the federal Constitution simply does not persuade me.

Chevron’s other arguments do not merit discussion.

For the foregoing reasons, there will be judgment recognizing plaintiff’s privilege in the amount of $1,810,594.29 together with the other sums authorized by LSA-R.S. 9:4861 against that certain oil, gas and mineral lease dated November 10, 1973, executed by Robert H. Wunsch, et ux, in favor of Chevron Oil Company (now Chevron U.S.A., Inc.) recorded on November 27, 1973 in C.O.B. 184 entry number 267, of the records of the Office of the Clerk and Recorder for the Parish of Livingston, Louisiana.

Counsel for plaintiff shall prepare a judgment in accordance with this opinion and submit it to opposing counsel for approval as to form.

      . Chevron does not mention it but presumably, its argument dictates that the portion of the Wunsch tract which is not included in any unit would constitute a fourth tract.

      . See LSA-R.S. 30:3(6) which defines "pool.” Nevertheless, the undersigned recalls instances in years gone by of listening with amazement while experts solemnly testified to the Commissioner that the limits of an underground formation followed surface features, such as highways or even, on occasion the limits of a particular property line.