source: Caselaw Access Project

author: ROSENBAUM, District Judge.

license: Public Domain

text:
    APL LIMITED PARTNERSHIP v. VAN DUSEN AIR, INC., et al.
    Civ. No. 4-85-932.
    United States District Court, D. Minnesota, Fourth Division.
    Aug. 19, 1985.

      Richard B. Solum, Lindquist & Vennum, Minneapolis, Minn., Sanford M. Litvack, William Ruane, Charles W. Gerdts, III, Donovan, Leisure, Newton & Irvine, New York City, for plaintiff, APL.
    Robert E. Woods, Jerry Rotman, Briggs & Morgan, Minneapolis, Minn., Gregory Joseph, William McGuiness, Fried, Frank, Harris, Shriver & Jacobson, New York City, for defendant Van Dusen Air, Inc.
    Alan J. Gilbert, Sp. Asst. Atty. Gen., Barry Greller, St. Paul, Minn., for the State of Minn.
   ORDER

ROSENBAUM, District Judge.

I. Introduction

At issue in this case is the constitutionality of the Minnesota Control Share Acquisition Act (MCSAA), Minn.Stat. §§ 302A.011(37H40), 302A.449(7), and 302A.671 (1985), a statute which regulates the acquisition of over 20% ownership of the voting stock of certain corporations. The issue comes before this court upon the motion of plaintiff APL Limited Partnership (APL) for an order pursuant to 28 U.S.C. § 2201 declaring that the MCSAA is facially unconstitutional. The basis of APL’s request is that the MCSAA violates the Commerce Clause and the Supremacy Clause of the United States Constitution.

APL is a Delaware limited partnership with its principal place of business in New York City. The partnership is primarily owned by Jeffrey Miller, Jeffrey Tabak and Gary Hirsch. The defendant Van Dusen Air Incorporated (VDAI) is a Minnesota corporation engaged in the business of providing aviation related products and services to commercial airlines. Approximately 21% of VDAI’s 1,100 employees live in Minnesota; 25% of its assets are located in Minnesota; and 25% of its common stock is owned by Minnesota residents. On July 29, 1985, APL disclosed that it had been purchasing shares of VDAI in the open market. As of August 2, 1985 APL had purchased approximately 18% of the outstanding common stock of VDAI.

On the same day APL disclosed its purchase of VDAI shares on the open market, APL filed this action against VDAI and the State of Minnesota seeking a declaration, inter alia, that the Minnesota Statute was facially invalid as a violation of the Commerce and the Supremacy Clauses of the United States Constitution. At oral argument on August 9, 1985, counsel for APL premised its argument on the assertion that the MCSAA imposes an unreasonable burden upon interstate commerce and that the area had been preempted by the Williams Act.

At the preliminary injunction hearing on August 9, 1985, all parties agreed that there was no need to present testimony on the issues raised by APL’s complaint. Accordingly, and by agreement of the parties, the court will treat the preliminary injunction hearing as a hearing for final injunctive relief. See Fed.R.Civ.P. 65(a)(2).

This action does not represent the first attack upon a Minnesota statute designed to regulate attempted takeovers of a Minnesota corporation. In Cardiff Acquisitions, Inc. v. Hatch, 751 F.2d 906 (8th Cir.1984) and Edudata Corp. v. Scientific Computers, Inc., 746 F.2d 429 (8th Cir.1984) the Eighth Circuit Court of Appeals considered the constitutionality of the Minnesota Corporate Takeover Act, Minn.Stat. § 80B.01 et seq. In both cases the Eighth Circuit upheld the particular sections of the Minnesota statute then at issue. The present case, however, involves a different statute, § 302A.671, from that at issue in Cardiff and Edudata and while these decisions provide guidance, they do not control this action. To determine whether the MCSAA violates the Constitution, it is first necessary for this Court to briefly outline the provisions of the MCSAA and the Williams Act.

A. The Minnesota Control Share Acquisition Act

In 1984 Minnesota adopted the MCSAA as part of a series of amendments to the Minnesota Business Corporation Act. The stated purposes of the MCSAA were to (1) assure that the impact of a takeover was disclosed prior to its consumation, (2) provide necessary information to enable shareholders to cast informed votes, and (3) encourage reasoned decision making on the part of the shareholders of the target corporation. Minn.Laws Ch. 488 § 2 (1984). The MCSAA seeks to provide two types of protection for stockholders of a corporation. First, it provides shareholders with information about the future plans of the person seeking to acquire over 20% of the voting stock. Second, and perhaps most important, it permits stockholders to block the acquisition through a shareholders vote.

The MCSAA, by its terms, applies to any “issuing public corporation” which is a corporation organized under Minnesota law with at least 50 shareholders and which has either: (1) its principal place of business in Minnesota, or (2) owns assets in Minnesota with a fair market value in excess of $1,000,000. Minn.Stat. § 302A.011(39) (1985). By its terms, the statute imposes no requirement that any shareholders of the corporation be residents of the state of Minnesota.

The statute requires that an acquiring person — any person proposing to make a control share acquisition — must disclose certain information to the shareholders of the target corporation prior to the statutory shareholders meeting. Minn.Stat. § 302A.671(2) (1985). The information statement requires the acquiring person to disclose, inter alia, the terms of the control share acquisition, the source of funds, any plans to liquidate the corporation, and any plans to move the location of its principal executive offices or business activities. Minn.Stat. § 302A.671(2).

Within 5 days of the time it receives the information statement, the board of directors of the target company must call a special stockholders meeting for the purpose of considering the proposed control share acquisition. Minn.Stat. § 302A.671(3) (1985). The meeting must be held within 55 days after receipt of the information statement unless the acquiring person agrees to a later date. Id. The acquiring person has a right to demand that the shareholders meeting not be held sooner than 30 days after the target company receives the information statement. Id.

The notice of the shareholders meeting must be accompanied by the information statement and a statement of the position of the board of directors on the proposed control share acquisition. Id. The notice of the shareholders meeting must be given within 25 days after the target corporation receives the information statement. Id.

The key provision of the MCSAA at issue in the present proceeding is § 302A.671 which provides in relevant part that a person may not acquire over 20% of the voting shares of a corporation unless:

(1) the proposed control share acquisition is approved by the affirmative vote of the holders of a majority of the voting power of all shares entitled to vote.
* * * * * *
and (2) the proposed control share acquisition is consumated within 180 days after shareholder approval.

Minn.Stat. § 302A.671(4) (1984). The net effect of § 302A.671 is to (1) restrict the ability of a designated prospective purchaser (the acquiring person) and any potential selling shareholder (both of whom may be non-citizens of Minnesota) to buy and sell stock; (2) prevent the acquiring person from acquiring stock between the time he reaches 20% and the time the approval meeting is held; and (3) permanently prevent the acquiring person from acquiring stock from a willing seller unless the acquiring person can obtain shareholder approval.

The MCSAA also permits both the acquiring person and the management of the target corporation to solicit proxies in anticipation of the shareholders meeting. Minn.Stat. § 302A.449(7) (1985). However, proxies may not be solicited during the 30 days prior to the shareholders meeting unless the acquiring person and target corporation agree. Id. The statute penalizes those who violate the MCSAA by (1) denying voting rights for one year, (2) rendering the acquired shares nontransferable for one year, and (3) providing that the acquired shares may at the option of the target corporation, be redeemed for the same price at which they were acquired. Minn.Stat. § 302A.671(l)(b) (1985).

B. The Williams Act

The Williams Act was adopted by Congress in 1968 as a “response to the increased use of cash tender offers in corporate acquisitions, a device that had ‘removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the Federal securities laws.’ ” Edgar v. MITE Corp., 457 U.S. 624, 632, 102 S.Ct. 2629, 2635, 73 L.Ed.2d 269 (1982) quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 22, 97 S.Ct. 926, 939, 51 L.Ed.2d 124 (1977). The Williams Act contains two types of provisions. First, it establishes disclosure requirements designed to protect all shareholders of the target corporation. Second, it guarantees certain rights to those shareholders of the target corporation who elect to tender their stock.

The disclosure provisions of the Williams Act are found in 15 U.S.C. § 78m(d)(l). A tender offeror is required to disclose his background, identity, the source of the funds being used in making the purchase, the extent of his holdings and his future plans for the target corporation. 15 U.S.C. § 78m(d)(l). The purpose of these requirements is to permit shareholders of the target corporation, when faced with a tender offer, to make an informed decision on whether to tender their stock. See e.g. MITE Corp. v. Dixon, 633 F.2d 486 (7th Cir.1980) aff. sub. nom. Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982).

The Williams Act also supplies a second tier of substantive rights to those shareholders of the target corporation who elect to tender their stock. Shareholders who accept the offer can withdraw their acceptance within the first 7 days of the offer and after 60 days from the start of the offer. 15 U.S.C. § 78n(d)(5). The Williams Act also requires that if the offer is oversubscribed the offeror must purchase the shares on a pro rata basis during the first 10 days of the offer. 15 U.S.C. § 78n(d)(6). Moreover, if during the course of the offer the price per share is increased, all shareholders who tender their stock to the offer- or will receive the increased price. 15 U.S.C. § 78n(d)(7). See also, Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 22-23, 97 S.Ct. 926, 939-940, 51 L.Ed.2d 124 (1976).

The primary purpose behind the Williams Act was to protect the shareholders of the target corporation. As part of the effort to protect shareholders, however, Congress carefully avoided giving any undue advantage to either the tender offeror or incumbent management. Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982). Congress did not want to deny shareholders “the opportunities which result from the competitive bidding for a block of stock of a given company.” See 113 Cong.Rec. 24666 (1967) (remarks of Sen. Javits), cited in, Edgar v. MITE Corp., 457 U.S. 624, 633 n. 9, 102 S.Ct. 2629, 2636 n. 9, 73 L.Ed.2d 269 (1982).

II. Commerce Clause

This Court is mindful that a legitimately enacted statute is presumed constitutional. In the case at bar, however, the plaintiff argues that the MCSAA violates the Commerce Clause of the United States Constitution asserting that the burden the MCSAA places upon interstate commerce is excessive in relation to the local benefits it serves. The Commerce Clause provides that “Congress shall have power ... [t]o regulate commerce ... among the several states.” U.S. Const., Art. 1, § 8, cl. 3. The Commerce Clause, standing alone, places some limitations upon the power of states to regulate interstate commerce. See Cooley v. Board of Wardens, 12 How. (53 U.S.) 299, 13 L.Ed. 996 (1852). However, not every regulation of interstate commerce by a state necessarily violates the commerce clause. A state statute designed to serve a legitimate local objective which incidentally regulates interstate commerce will be upheld unless the burden on interstate commerce is excessive in relation to the local benefits. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Thus, in making a determination as to whether the MCSAA violates the Commerce Clause this Court must balance the local benefits of the statute against any burden placed on interstate commerce.

Any analysis of whether the MCSAA violates the Commerce Clause must include a discussion of the Supreme Court’s recent decision in Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982). In Edgar the Supreme Court considered a challenge to the Illinois Business Takeover Act. The Illinois Business Takeover Act contained several provisions which the Supreme Court deemed significant for purposes of its decision. First, the Act required a tender offeror to notify the target company and the Illinois Secretary of State of its intention to make a tender offer 20 days before the offer became effective. Second, the Act permitted the Secretary of State to hold a hearing to adjudicate the fairness of the tender offer and to deny registration if it felt the offer was not fair. Third, the Act required the Secretary of State to call a hearing if requested to do so by persons holding 10% of the outstanding shares subject to the tender offer. Fourth, the statute was not restricted to corporations organized under the laws of Illinois.

The Illinois Act was attacked on the basis that it violated the Commerce Clause and the Supremacy Clause. Justice White, writing for the plurality, issued a five part decision which held that the Illinois Act violated both provisions of the Constitution. Other than Section I, reciting the facts of the case, and Section II, which found it not to be moot, the only part of the opinion which commanded a majority of the court was part Y-B holding that the Illinois Business Takeover Act violated the Commerce Clause because the burdens it imposed upon interstate commerce were unreasonable in relation to the benefits to Illinois. Id. at 643, 102 S.Ct. at 2641.

In balancing the local benefits against the burden on interstate commerce, the Court identified three ways in which the challenged Illinois Act burdened interstate commerce. First, the Act burdened interstate commerce because the statute was not limited to Illinois corporations. Id. Second, the Court noted that the effect of allowing the Secretary of State to pass upon the fairness of the tender offer deprived shareholders of the opportunity to sell their shares at a premium. Id. Third, the Court noted that by inhibiting tender offers the incentive for incumbent management to perform well was reduced. Id.

The Court then went on to examine the benefits claimed by the State of Illinois. With respect to Illinois’ interest in protecting shareholders, the Court stated that:

While protecting local investors is plainly a legitimate state objective, the state has no legitimate interest in protecting nonresident shareholders. Insofar as the Illinois law burdens out-of-state transactions, there is nothing to be weighed in the balance to sustain the law.

Edgar v. MITE Corp., 457 U.S. 624, 644, 102 S.Ct. 2629, 2641, 73 L.Ed.2d 269 (1982). With the MITE teachings in mind, the Court turns to an examination of the suggested Minnesota interests.

A. Minnesota’s Local Benefits

To determine whether or not there is an impermissible conflict between the MCSAA and the Commerce Clause this Court must balance the local benefits of the statute against the burden it places upon interstate commerce. Before analyzing each of the defendants’ arguments, it is necessary for this Court to distinguish between two commonly confused terms; local interests and local benefits. The Commerce Clause, as interpreted by the Supreme Court, requires a court to balance benefits against burdens; not interests against burdens. See Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269. The difference, while subtle, is crucial to a proper Commerce Clause analysis.

A state may have a legitimate desire to accomplish a certain objective. That desire represents an interest of the state. However, to the extent that a statute which burdens interstate commerce fails to further the state’s desired result, that statute will not result in any local benefits to a state. Under the Supreme Court’s decisions applying the Commerce Clause, the state of Minnesota may not prevail by simply demonstrating that its statute was designed to further a legitimate state interest. It must also demonstrate that its legitimate interest will, in fact, be served by the statute. The propriety of this approach was made clear in Edgar where the Supreme Court, after first recognizing that the state of Illinois had an interest in protecting resident shareholders, went on to “conclude that the protections the Illinois Act affords resident security holders are, for the most part, speculative.” Id. at 639, 102 S.Ct. at 2639. A Commerce Clause analysis which required this Court to assume that the state’s interests would be advanced by a statute would mean that only in those rare cases where the state artlessly failed to set forth laudable interests could a court strike down a statute as a violation of the Commerce Clause. This court has the constitutional duty to determine whether State-desired benefits can, in fact, result from the statute and only those which are not “speculative” may be placed in the scale to be balanced against the burden on interstate commerce.

By its terms the MCSAA seeks to assure that the impact of a takeover (1) is timely disclosed to shareholders, (2) that information will be provided to insure that shareholders can cast informed votes, and (3) to encourage reasoned decision making by those shareholders. Minn.Laws Ch. 488 § 2 (1984). These are the state’s asserted interests, and if accomplished would be the benefits which this Court is directed by Pike to balance against any burdens on interstate commerce.

This Court agrees that the disclosure provisions of the MCSAA provide relevant information to Minnesota shareholders. However, it is worth noting that most of the information provided by the MCSAA is also mandated by the Williams Act. Thus, the benefits that result from the disclosure provisions of the MCSAA are limited to the marginal increase in information supplied by the statute.

The defendants in this action argue that the state of Minnesota has an interest in protecting shareholders of Minnesota corporations. The State of Minnesota consistently refers to its interest in protecting shareholders of Minnesota corporations rather than Minnesota shareholders. But the MCSAA is not restricted, or even specifically directed to Minnesota shareholders. The MCSAA would apply even if there were no Minnesota shareholders, and, as stated above:

While protecting local investors is plainly a legitimate state objective, the state has no legitimate interest in protecting nonresident shareholders. Insofar as the Illinois law burdens out-of-state transactions, there is nothing to be weighed in the balance to sustain the law.

Edgar v. MITE Corp., 457 U.S. 624, 644, 102 S.Ct. 2629, 2641, 73 L.Ed.2d 269 (1982) (emphasis supplied).

Similarly, Minnesota has no interest in protecting nonresident shareholders even if they own stock in a Minnesota corporation. Thus, to the extent the MCSAA burdens interstate commerce there are no “local benefits” that arise from the statute’s application to nonresident shareholders. Id. In the present case, this burden is substantial since over 75% of the outstanding stock of YDAI is owned by nonresidents and there is, according to the Supreme Court, nothing to be weighed in the balance. In Cardiff Acquisitions, Inc. v. Hatch, 751 F.2d 906 (8th Cir.1984) the Eighth Circuit upheld the validity of Minnesota’s TakeOver Act against a Commerce Clause attack. That Act, however, was only triggered when the target corporation had a significant number of Minnesota shareholders and the suspension of the take-over offer applied only to Minnesota shareholders. That Act was narrowly tailored to serve Minnesota’s local interests without imposing an unreasonable burden on interstate commerce.

As mentioned above, Minnesota does have a legitimate interest in protecting resident shareholders and the MCSAA does give Minnesota shareholders a voice in the direction of Minnesota corporations. However, even where substantial local benefits flow from a statute, it may still be invalid if the same benefits could be achieved through a lesser burden on interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). As the Pike Court stated:

the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be protected as well with a lesser impact on interstate activity.

Id. at 142, 90 S.Ct. at 847 (emphasis supplied). The state of Minnesota could have achieved its goal of protecting resident shareholders by restricting the application of the MCSAA to those domestic corporations with some Minnesota shareholders. The MCSAA applies to corporations even if there are no resident shareholders and thereby attempts to regulate the economic relationship between two nonresident shareholders.

Minnesota also claims an interest in protecting the state’s business climate. This Court does not dispute the right of a state to enact legislation which serves to foster a habitable business climate. The relationship between that objective and the MCSAA is, however, less than clear. It appears to be based upon the questionable assumption that a person who acquires 20% of the voting stock of a corporation, whether that person is a resident or nonresident of Minnesota, is likely to engage in activity that is deleterious to Minnesota’s business climate, such as moving the corporate headquarters or base of operations outside of Minnesota. Without considering (a) whether the assumption is correct or (b) whether any nonresident or even any Minnesota shareholder would care about a move, it is significant to note what the state chose not to regulate. The statute does not place any restriction upon incumbent management’s ability to freely move its corporate headquarters or base of operations. Exceptions of this kind “tend to undermine [Minnesota’s] justification for the burdens the statute imposes on interstate commerce. Edgar v. MITE Corp., 457 U.S. 624, 644, 102 S.Ct. 2629, 2641, 73 L.Ed.2d 269 (1982).

The defendants have also argued that the MCSAA is a valid exercise of the state’s authority to regulate the internal affairs of corporations organized under its laws. They analogize the MCSAA to Minnesota’s traditional corporate regulation of the number of incorporators, number of directors, par and no-par stock, and staggered or non-staggered terms of directors. The court rejects this analysis. The “internal affairs” mentioned above represent Minnesota’s regulation of a Minnesota corporation. The MCSAA regulates shareholders, who may not be residents of Minnesota. Regulation of shareholders — and those who would become shareholders — is not the same as regulating the corporation itself.

There is little doubt that a state has some constitutionally sanctioned right to govern the internal affairs of its corporations. The debate centers on the meaning of “internal affairs.” In Edgar the state of Illinois argued that its Business Takeover Act was constitutional because of Illinois’ overriding interest in regulating the internal affairs of its corporations. The Supreme Court disagreed stating:

That doctrine is of little use to the state in this context. Tender offers contemplate transfers of stock by stockholders to a third party and do not themselves implicate the internal affairs of the target company.

Edgar v. MITE Corp., 457 U.S. 624, 645, 102 S.Ct. 2629, 2642, 73 L.Ed.2d 269 (1982).

In the present case the MCSAA restricts the ability of a nonresident shareholder to sell shares to a nonresident third party. The defendant’s argument that the MCSAA is simply an “internal affairs” regulation stems from a failure to distinguish between the acquisition of shares and the exercise of power as a result of that acquisition. The acquisition of shares does not implicate the internal affairs of the target corporation. The use of that power once the shares have been acquired may well be a proper subject of state regulation, but that is not what the MCSAA regulates.

B. Burdens

The burdens imposed on interstate commerce by the MCSAA are substantial. It has the effect of restricting the right of non-residents to purchase and sell stock in Minnesota corporations. This burden is particularly significant in the ease of publicly listed and traded corporations since there is little relationship between the state of incorporation and the likelihood that stockholders will be residents of that state. This case is an excellent example; while VDAI is a Minnesota corporation, approximately 75% of its stock is owned by nonresidents. Any restriction on the transferability of that stock is, perforce, a restriction upon interstate commerce.

In Edgar v. MITE Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) the Supreme Court described the burden on interstate commerce that flowed from the provisions of the Illinois Business Takeover Act which allowed the Secretary of State to block a tender offer stating:

Shareholders are deprived of the opportunity to sell their shares at a premium. The reallocation of economic resources to their highest valued use, a process which can improve economic efficiency and competition is hindered. The incentive the tender offer mechanism provides incumbent management to perform well is reduced.

Id. at 643, 102 S.Ct. at 2641. The Court recognizes that the MCSAA does not permit the Secretary of State to block a control share acquisition, transferring that power instead to the shareholders of the corporation. That provision does, however, permit the shareholders to block a transfer of shares, thus leading to many of the same results as the Illinois statute.

The MCSAA restricts APL’s ability to buy stock by requiring prior shareholder approval. If APL fails to obtain approval, a substantial buyer of VDAI stock will be removed from the market thereby preventing VDAI shareholders from receiving a premium for their stock. The statute also has the effect of insulating incumbent management by making control share acquisitions more difficult thereby reducing the incentive for incumbent management to perform well. Id. Finally, the MCSAA, like the Illinois Business Takeover Act, impedes the reallocation of economic resources. Id.

The state of Minnesota has argued that the requirement of prior shareholder approval for control share acquisitions is no different than the requirement of prior shareholder approval for a merger or sale of assets and that if this Court strikes down the MCSAA it must also strike down those provisions of the Minnesota Business Corporation Act (MBCA) which require shareholder approval for a merger or sale of assets. See Minn.Stat. § 302A.613(2); Minn.Stat. § 302A.661(2) (1984). Setting aside the obvious fact that the constitutionality of the merger and sale of assets provisions of the MBCA are not before the Court at this time, this court cannot accept the state’s “merger” analogy.

The state’s merger analogy perpetuates the state’s confusion between regulation of a corporation and the regulation of those who would trade in shares. One obvious difference between the MCSAA and those provisions of the MBCA requiring shareholder approval for a merger or sale of assets is that the latter only apply to Minnesota corporations. The merger provision of the MBCA restricts the ability of a Minnesota corporation to merge. That is a lawful exercise of the state’s authority to regulate a legal entity created by state statute. While the MCSAA also applies only to Minnesota corporations, it does not purport to regulate the activities of the corporation; rather, it reaches out and regulates shareholders who may or may not be residents of Minnesota.

III. Conclusion

The MCSAA is a different statute from the Illinois Act under consideration in Edgar v. MITE Corp., yet it suffers from many of the same constitutional infirmities. This Court does not dispute that Minnesota has legitimate interests which it sought to advance in passing the MCSAA.. However, the benefits that will actually accrue from the statute are, at best, speculative. To the contrary, the burdens imposed by the statute represent a substantial intrusion upon the policies embodied in the Commerce Clause.

On balance, this Court finds that the speculative local benefits which may accrue to Minnesota are outweighed by the direct burdens imposed on interstate commerce. Accordingly, this Court concludes that the MCSAA violates the Commerce Clause of the United States Constitution.

For the reasons stated above, IT IS ORDERED that:

1. Minn.Stat. § 302A.671 is facially invalid as a violation of the Commerce Clause of the United States Constitution.

2. The defendants and their agents are permanently enjoined from taking any action to enforce Minn.Stat. § 302A.671 or any other provision of the Minnesota Control Share Acquisition Act against the plaintiff APL in connection with APL’s acquisition of shares of VDAI.

ORDER

On August 16, 1985 this Court issued an order pursuant to 28 U.S.C. 2201 and an injunction pursuant to Fed.R.Civ.P. 65 declaring the Minnesota Control Share Acquisition Act (MCSAA), Minn.Stat. 302A.671, unconstitutional and enjoining the defendants from attempting to enforce the MCSAA against plaintiff APL. Accompanying that order was a 21 page memorandum which explained the basis of this Court’s decision.

Immediately after issuing the order and memorandum, this Court discovered an error in its memorandum which, when corrected, does not lead this Court to change its order. The Court has corrected that error and now issues the attached superseding memorandum. The order of August 16, 1985 shall remain the same.

IT IS SO ORDERED.

      . The amount of stock owned by Minnesota residents may be somewhat less since APL began purchasing shares on the open market.

      . The MCSAA applies to any transaction which could leave the acquiring person with (a) at least 20% but less than 33‘/4%; (b) at least 3354% but less than or equal to 50%; or (c) over 50%. The statute only applies to a change in range, it does not apply to changes within such designated ranges. See Minn.Stat. § 302A.671(2) (1985).

      . Prior to the 1960’s, most corporate control contests were waged through proxy fights which were regulated by § 14 of the Securities Exchange Act. As cash tender offers became more popular, Congress decided they should be subject to similar regulation and accordingly passed the Williams Act.

      . The Court thought this provision was important since, in many cases, management controls 10% of the shares.

      . Since, in the present case, over 75% of the outstanding stock of VDAI is owned by nonresidents, this Court need not decide whether a statute which applied to only Minnesota shareholders would violate either the Commerce Clause or the Supremacy Clause.

      . These considerations are critical since the MCSAA will not prevent any corporation from moving out of the state unless one assumes that the shareholders would prevent the consumation of a proposed control share acquisition if the acquiring person disclosed plans to move the base of operations of the target corporation out of Minnesota. If the shareholders would v not oppose such a move, the statute does not serve the state’s interest in protecting the local business climate and there are no "benefits” to be placed in the balance against the burden imposed on interstate commerce. While this Court may engage in the questionable assumption that resident investors would react in such a manner, it is inconceivable that the nonresident shareholders of VDAI who own 75% of the voting stock would vote against the proposed control share acquisition solely to benefit Minnesota’s business climate. Thus, any benefits to Minnesota’s business climate are nominal in relation to the burden the statute imposes on interstate commerce.

      . All parties to this action have extensively briefed and argued the issue of whether the MCSAA violates the Supremacy Clause on the ground that it is preempted by the Williams Act. Having decided that the MCSAA violates the Commerce Clause this Court need not address any other issues.


author: BATHSTI, Chief Judge.

text:
    Lewis H. MANN, Petitioner, v. Frank GRAY, Superintendent, Respondent.
    No. C84-3651-Y.
    United States District Court, N.D. Ohio, E.D.
    Aug. 26, 1985.
    On Motion to Alter and Amend Sept. 18, 1985.

      Jill E. Stone, Asst. Public Defenders Comm., Columbus, Ohio, for petitioner.
    Stuart A. Cole, Asst. Atty. Gen., Columbus, Ohio, for respondent.
   ORDER

BATHSTI, Chief Judge.

Petitioner was convicted of aggravated burglary in violation of Ohio Revised Code § 2911.11(A)(3). His conviction was affirmed on appeal. On December 5, 1984, petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging (1) denial of his Sixth Amendment right to confrontation for limitation of his cross-examination; (2) denial of his Fifth Amendment right to due process for improperly placing the burden of proof upon him and; (3) denial of due process for the trial court’s failure to instruct the jury on a lesser included offense and; (4) denial of his Fifth Amendment right against self-incrimination through the use of a coerced confession.

On April 23, 1985, Magistrate Jack Streepy filed his Report and Recommended Decision [hereinafter referred to as “Report”] in which he found no constitutional violations as alleged by petitioner; the Magistrate recommended that the petition for writ of habeas corpus be denied. Petitioner filed objections on May 8, 1984, addressing only the confrontation and due process claims; the petitioner did not object to the Magistrate’s finding that there was insufficient basis for the coerced confession claim. The Court will therefore examine the confrontation and due process claims addressed by the Magistrate and objected to by petitioner.

I.

SIXTH AMENDMENT RIGHT TO CONFRONTATION / CROSS-EXAMINATION

At petitioner’s trial, the prosecution called Jim Miller, who was at that time a 16 year old living in a group home run by the Ohio Youth Commission. Miller was in custody for his participation in the crime for which petitioner was being tried. When the defense sought to cross-examine Miller on his juvenile record, the trial court ruled that Miller could be cross-examined on “anything that he testified to here previously” or if “there were any promises made to him by the Prosecutor, the Judge, or anybody about the fact he is testifying here.” Trial transcript at 65. [hereinafter referred to as “Tr.”] The trial court specifically stated “there is no reason to allow cross-examination on a prior juvenile record ...” Tr. at 61, and distinguished the instant case from Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

At trial, on his state court appeal, and in the instant objections to the Magistrate’s Report, petitioner relies on Davis and states that because he was denied the right to inquire into Miller’s juvenile record, his right to confrontation was denied. Petitioner’s theory was that since Miller was subject to criminal prosecution under Ohio Revised Code § 2151.26, he was biased in that “it was in his best interests to minimize his culpability and tailor his testimony to the state’s version of the case.” Petitioner’s Objections at 4 [hereinafter referred to as “Objections”]. The defense wanted to develop bias as a “basis for an inference of undue pressure because of [Miller’s] vulnerable status as a probationer as well as [Miller’s] possible concern that he might be [tried as an adult].” Objections at 4-5.

The Magistrate distinguished Davis from the instant case by noting that in Davis the juvenile delinquent’s current probation status was completely foreclosed as an area for cross-examination whereas here petitioner was permitted to cross-examine Miller on his current custody status. Report at 2. The Magistrate found that foreclosing questioning of a witness on a prior ■finding of delinquency (for which he was neither in jail nor on probation) for the sole purpose of showing untruthfulness was not an unconstitutional limitation. Report at 3.

The Sixth Circuit has most recently discussed the right to cross examination in United States v. Touchstone, 726 F.2d 1116 (6th Cir.1984). In that case, the district court limited the cross-examination of a government witness who had been a participant in the defendant’s criminal activity. The district court denied cross-examination into the witness’ two prior homicides which were the basis of agreement the witness had made with state authorities; the defense sought to show the bias of the witness. The Sixth Circuit affirmed the trial court’s limitation as not violating defendant’s right to confrontation. The test enunciated was where a trial court has limited but not totally precluded cross-examination as to motive, “the issue is whether the jury was otherwise in possession of sufficient information concerning formative events to make a ‘discriminating appraisal’ of a witness’ motives and bias [citations omitted].” Id. at 1123.

In the instant case, the Court did not exclude information as to the witness’ status or residence as the district court did in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). Hence, the questioning as to witness Miller’s status could have suggested to the jury that the witness’ testimony was given with some expectation of leniency or fear of prosecution.

It is important that this Court analyze Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), because of its centrality to Sixth Amendment jurisprudence regarding the right to cross-examination and petitioner’s reliance on it in the instant case. In Davis, the defendant was charged with grand larceny and burglary. The prosecution called Richard Green who had seen the defendant near the burglary site and who picked the defendant out of a police lineup. The prosecution moved for a protective order to prevent any reference to Green’s juvenile record in cross-examination. Green was on probation by order of a juvenile court for burglary. He was 16 years of age at the time he saw defendant but had turned 17 prior to trial.

In opposing the protective order, petitioner’s counsel made it clear that he would not introduce Green’s juvenile adjudication as a general impeachment of Green’s character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show — or at least argue — that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the [bar], but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green’s record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green’s good character into question.”

Id. at 311, 94 S.Ct. at 1108.

The trial court, citing an Alaska statute making the juvenile delinquency record inadmissible, granted the protective order and the Alaska Supreme Court affirmed on the ground that defense counsel had been given adequate opportunity to question the witness concerning the possibility of bias or motive. Id. at 314-15, 94 S.Ct. at 1109.

The Supreme Court reversed the conviction on the ground that defendant Davis was not able to adequately and properly develop the bias issue for the jury.

While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a “rehash” of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.

The thrust of Davis is that the defendant should have been permitted to establish that the witness was on probation. There is no indication that cross-examination about prior offenses is required. In the instant case since there had been direct testimony that witness Miller was in the custody of the Ohio Youth Commission, Tr. at 40, and that he had participated in the burglary with defendant Mann, Tr. at 43, the defense had sufficient basis to cross-examine Miller on his current status and concern for leniency in subsequent prosecutions. Furthermore, the trial court permitted cross-examination on the circumstances of witness Miller’s appearance and any deals he may have struck. Hence, unlike Davis where no testimony was permitted on the witness’ current status, in the instant case such questioning was permitted. Hence, under Davis and the Sixth circuit’s Touchstone test, this Court concludes the jury had sufficient information before it, namely Miller’s custody status, his age and the possibility of an agreement with the prosecution, to make a “discriminating appraisal” of his motives and bias. The Magistrate was correct in finding that the defense does not have a constitutional right to inquire into prior findings of juvenile delinquency. Accordingly, there is no violation of the Sixth Amendment right to confrontation.

II.

DUE PROCESS — BURDEN OF PROOF

Petitioner contends his right to due process of law was violated when the trial judge instructed the jury that the defendant/petitioner had the burden of proving by a preponderance of the evidence that he was intoxicated to the extent that he could not have formed the requisite criminal intent. The Magistrate found that since intoxication is an affirmative defense, “due process is not violated by placing the burden of proof on the defendant to prove certain affirmative defenses.” Report at 3. The petitioner objects on the ground that intoxication is not an affirmative defense but rather testimony which negates an element (i.e. specific intent) of the crime; hence, it violates due process to impose the “burden of proof [upon the defendant] to negate an element of the crime for which he was charged.” Objections at 7.

It is well-established that the state must bear the burden of proving beyond a reasonable doubt every element of the offense charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Since it is not unconstitutional to shift the burden of proof to the defendant on a matter which does not negate an element of the crime, such as an affirmative defense, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), this Court’s first inquiry must be whether under Ohio law intoxication is an affirmative defense.

At this point, it is worth identifying the elements of the crime for which petitioner was convicted. Ohio Revised Code § 2911.-11(A)(3) defines “Aggravated Burglary” thus:

No person by force, stealth, or deception shall trespass in an occupied structure ... with purpose to commit therein any theft offense ... when any of the following apply: ... the occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.

The three elements of the offense, identified by the trial judge, were: (1) the defendant or a person or persons with whom he had a common purpose, by force trespassed in an occupied structure; (2) that he did so with purpose to obtain property owned by another without her consent and to deprive her of that property; and (3) at the time, the occupied structure involved was the permanent or temporary habitation of another in which at the time any person was present or likely to be present. Hence, the three elements are:

(1) trespass with force;
(2) intent to commit a theft; and
(3) an occupied structure which is the habitation of another.

Hence, petitioner contends that intoxication negates element No. 2 of the crime.

Petitioner is incorrect in stating at page 11 of his Objections that “intoxication is not an affirmative defense in Ohio”; several cases have held to the contrary. In State v. Poole, 33 Ohio St.2d 18, 294 N.E.2d 888, 889 (1973), the Ohio Supreme Court stated:

This Court has consistently recognized that there are certain “justification[s] for admitted conduct” allowed to a defendant in a criminal case, provable for the most part under the plea of not guilty, which are referred to as “affirmative defenses.” As characterized by one authority, they represent not a mere denial or contradiction of evidence which the prosecution has offered as proof of an essential element of the crime charged, but, rather, they represent a substantive or independent matter “which the defendant claims exempts him from liability even if it is conceded that the facts claimed by the prosecution are true.” Among those defenses in Ohio, are self-defense, duress, insanity and intoxication. (emphasis added).
Id,., 294 N.E.2d at 889 (quoted in Thomas v. Arn, 704 F.2d 865, 877 (6th Cir.1983); accord, State v. Jones, 423 N.E.2d 447, 67 Ohio St.2d 244 (1981); State v. Humphries, 364 N.E.2d 1354, 51 Ohio St.2d 95 (1977); State v. Robinson, 351 N.E.2d 88, 47 Ohio St.2d 103, 1 O.O.3d 61 (1976).________

Placing the burden of proving intoxication on the defendant has been held not to violate due process. Stewart v. Israel, 738 F.2d 889, 892 (7th Cir.1984) (arson conviction); Hobgood v. Housewright, 698 F.2d 962, 963 (8th Cir.1983) (burglary, kidnapping and first degree murder); U.S. ex rel Goddard v. Vaughn, 614 F.2d 929, 936 (3rd Cir.1980) (first degree murder). In Gilcrist v. Kincheloe, 589 F.Supp. 291, 294 (E.D.Wash.1984), on a conviction for escaping from prison, the Court stated, “Like insanity, involuntary intoxication diminishes the culpability of a crime. The defendant is said to be excused from the criminality of the act because intoxication affects the ability to distinguish between right and wrong. For this reason, courts generally characterize involuntary intoxication as a temporary degree of insanity.” Id. at 294. Insanity has traditionally been an affirmative defense.

In Ohio, voluntary as well as involuntary intoxication is ordinarily no defense in a criminal proceeding. Tome v. Berea Pewter Mug Co., 446 N.E.2d 848, 852, 4 Ohio App.3d 98 (Cuyahoga Ct.App.1982). Since voluntary drunkeness is not a justification or excuse for the commission of a crime in Ohio, a drunken person has, in ordinary cases, enough sense to form a purpose. However, where a specific intent or knowledge is essential, intoxication may be shown for the purpose of lowering the degree of the offense. See 27 Ohio Jur.3d Criminal Law §§ 1135, 1144 (1981). While intoxication is not a defense to a crime, it is submitted to the jury for crimes in which specific intent or guilty knowledge is charged. In a prosecution for murder, the burden for establishing such degree of intoxication as would render the defendant incapable of forming an intent to kill was on defendant. Long v. State, 109 Ohio St. 77, 141 N.E. 691 (1923). Intoxication has also been interpreted as an affirmative defense under the statute relating to the burden of going forward with evidence as to such defense. State v. Humphries, supra.

Having established that intoxication is- an affirmative defense under Ohio’s law, the second question to be addressed is whether even though intoxication is nominally an affirmative defense, “nonetheless, because of its nature, [it] negate[s] an element of the offense.” Takacs v. Engle, 768 F.2d 122, 125 (6th Cir.1985). It is only when the State “requires a defendant to prove the existence of a defense which negates an element of the offense” that Constitutional infirmity arises. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Patterson, supra, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Thomas v. Arn, 704 F.2d 865, 874 (6th Cir.1983).

Mann argues that intoxication “negates the element of mens rea in specific intent crimes.” Objections at 11. Petitioner does not cite any Ohio cases to support his proposition but lists various Sixth Circuit opinions as well as those from jurisdictions outside Ohio showing that insanity, self-defense, duress, etc. have all been found to negate elements of crimes. In the instant case, the specific intent required as an element of the crime is that the defendant had a “purpose to commit a theft offense.”

Ohio Revised Code § 2901.22 entitled “Culpable Mental States”, indicates that:

(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.

Intoxication does not by itself negate the “purposeful” mens rea. Indeed, intoxication is not a defense to the commission of a crime unless a defendant is able to show that the degree of intoxication was so great as to negate his ability to form an intent to commit the crime. State v. Norman, 7 Ohio App.3d 17, 7 O.B.R. 19, 453 N.E.2d 1257, 1260 (Delaware County Ct. Appeals 1982). Hence, it is appropriate to place the burden of proof on the defendant to show that his consumption of alcohol was so great that he could not form a specific intent or even have a desire to engage in conduct which results in theft.

Finally, as the Magistrate correctly noted, the jury instructions must be considered as a whole. Cupp v. Naughton, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). It appears from an examination of the record that the trial court clearly indicated the elements of the offense and emphasized that the State still had to prove all the elements of the defense beyond a reasonable doubt. Therefore, the Court concludes imposing the burden of proving the affirmative defense of intoxication did not violate petitioner’s due process right.

III.

DUE PROCESS — LESSER INCLUDED OFFENSE

Petitioner argues that the trial court’s failure to instruct the jury on the charge of criminal trespass, a lesser included offense of aggravated burglary, violates his due process right. As the Magistrate notes at page 5 of his Report, a trial court is not obliged to instruct a jury on a lesser included offense. “Due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). The Sixth Circuit has made this standard applicable to non-capital cases. Ferrazza v. Mintzes, 735 F.2d 967 (6th Cir.1984).

It is clear from the trial court record that counsel for defendant requested the Court to instruct the jury on the lesser included offense of “criminal trespass” and that the trial judge denied the request. Tr. at 21. Since counsel requested the instruction, this Court may consider in the context of habeas corpus whether the denial to instruct rose to the level of a constitutional violation Cf. Pilon v. Bordenkircher, 593 F.2d 264, 268 (6th Cir.1979) ('‘As a general rule, the failure to give an unrequested lesser included offense instruction is not cognizable on habeas corpus.”)

The Magistrate was correct in noting that failure to give a lesser included offense “does not rise to the level of constitutional error when the failure was correct as a matter of state law.” Id. at 267. Petitioner’s conviction has been affirmed by the Ohio Supreme Court. Hence, this Court’s inquiry is whether the failure to give the instruction violated petitioner’s due process rights. The standard must therefore be “whether [there was] evidence which would permit the jury to rationally find the defendant guilty of the lesser included offense and to acquit him on the greater offense before he is entitled to a lesser included offense instruction.” Id. at 267 n. 4. (citing Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973).)

Criminal trespass is indeed a lesser included offense of aggravated burglary. State v. Scruggs, 18 O.O.3d 154, 155 (1980). As defined in Ohio Revised Code § 2911.21 criminal trespass occurs when a person “without privilege to do so ... knowingly enter[s] or remain[s] on the land or premises of another ...” Hence, the State to obtain a conviction on the grounds of aggravated burglary the State had to prove not only that petitioner was “knowingly in the house without permission ... [but that] he did so with the purpose to commit a theft offense.” Report at 7.

The Magistrate’s review of the evidence leads this Court to conclude that there was sufficient evidence to find petitioner had the requisite criminal purpose. Furthermore, using the standard of O’Guin v. Foltz, 715 F.2d 397, 399 (6th Cir.1983), the trial court's failure to instruct on the lesser included offense did not deny defendant a fair trial. Petitioner’s argument that evidence of his intoxication would have negated the specific intent of aggravated burglary has already been discussed in part II supra and must once again be rejected here. Hence, the trial court’s refusal to instruct on the lesser included offense did not rise to the level of violating defendant’s Fifth Amendment right to due process.

IV.

COERCED CONFESSION

The petitioner has not objected to Part IV of the Magistrate’s Report. In that section, the Magistrate found that Petitioner’s claim that his conviction was obtained through use of a coerced confession had not been sufficiently documented either in the “record” or by reason and authority. There being no objection to the Magistrate’s conclusion, this Court dismisses petitioner’s coerced confession claim as being without basis.

V.

After receiving the Magistrate’s Report and Petitioner’s Objections, this Court (1) finds no violation of petitioner’s Sixth Amendment right to confrontation, (2) finds no violation of petitioner’s Fifth Amendment right to due process either in the context of burden of proof or a lesser included offense jury instruction and (3) dismisses petitioner’s claim of coerced confession. The Magistrate’s Report and Recommended Decision is hereby adopted. Accordingly, the petition for writ of habeas corpus is denied.

IT IS SO ORDERED.

ON MOTION TO ALTER AND AMEND

On August 26,1985, this Court entered a memorandum opinion and order adopting the Magistrate’s Report and Recommended Decision which denied petitioner’s writ of habeas corpus. On September 6, 1985, petitioner moved to alter and amend this Court’s August 26, 1985 judgment.

Petitioner’s Motion to Alter and Amend asserts that this court erred in finding that: (1) intoxication is an affirmative defense in Ohio and (2) that consequently the State may place the burden of proof as to intoxication on defendant/petitioner. Petitioner’s Motion to Alter and Amend states, “unfortunately, the district court failed to recognize that State v. Fox (1981), 68 Ohio St.2d 53 [428 N.E.2d 410], not State v. Poole (1973), 33 Ohio St.2d [18, 294 N.E.2d 888] controls this case.” Petitioner’s Motion to Alter & Amend at 1-2. Since petitioner asserts Fox as the only case necessitating correction of this Court’s judgment, that case will be examined in detail.

In State v. Fox, 68 Ohio St.2d 53, 428 N.E.2d 410 (1981), 3 defendants were each convicted of attempted murder of a police chief in violation of Ohio Revised Code §§ 2903.02 and 2923.02. At trial the defendants “denied shooting at the [victim police chief’s] home.” Id. at 54, 428 N.E.2d 410. They also claimed they were drinking. Id. The trial judge refused to instruct the jury to the effect that “[w]here a specific intent or knowledge is essential, intoxication may be shown for the purpose of eliminating such element of the offense, or for the purpose of lowering the degree of the offense.” Id. at 54 n. 1, 428 N.E.2d 410. The Court of Appeals reversed the convictions because the trial judge had not instructed the jury on the effect of intoxication on the specific intent necessary for attempted murder.

The Ohio Supreme Court reversed the Court of Appeals and sustained the convictions. Justice Clifford Brown wrote:

The common law and statutory rule in American jurisprudence is that voluntary intoxication is not a defense to any crime. Long v. State (1923). 109 Ohio St. 77, 86 [141 N.E. 691], An exception to the general rule has developed, where specific intent is a necessary element, that if the intoxication was such as to preclude the formation of such intent, the fact of intoxication may be shown to negative this element, [citation omitted]. In such a case, intoxication, although voluntary, may be considered in determining whether an act was done intentionally or with deliberation or premeditation. State v. French (1961), 171 Ohio St. 501, 502 [172 N.E.2d 613], cert. denied 366 U.S. 973 [81 S.Ct.1941, 6 L.Ed.2d 1263].

Id. at 54-55, 428 N.E.2d 410.

However, the Fox opinion did not discuss where the burden of proof lies. The specific issue the Court addressed was “[g]iven the admissibility of evidence of intoxication ... the issue is whether the trial court erred by refusing to go further and charge the jury on the possibility intoxication negated formation of the specific intent to attempt murder.” Id. at 55, 428 N.E.2d 410. Citing the case of Nichols v. State, 8 Ohio St. 435 (1858), the Court in Fox refused to require such a jury instruction. The Fox court stated:

‘* * * [w]hen we admit evidence of intoxication to rebut ... a charge of deliberation and premeditation, ... we think we have gone far enough____’
* * * * * *
Subsequent cases decided by this Court have recognized the appropriateness of a special jury charge on the effect of intoxication on formation of intent when that issue is properly raised by the evidence, (citation omitted). But this Court has never found it necessary to promulgate a rule to regulate judges in this matter ... This matter is best left to the discretion of the experienced trial judge.

Id., 68 Ohio St.2d at 56, 428 N.E.2d 410.

The Fox Court found, as did the trial judge, that there was not enough evidence to warrant the requested instruction.

The preceding discussion of Fox has been so lengthy in order to clearly show that that case does not address the issue of burdens of proof nor does it in any way deny this Court’s finding that intoxication is an affirmative defense in Ohio. It simply stands for the proposition that evidence of voluntary intoxication may be taken in order to show that defendant was precluded from forming the necessary purpose.

In the instant case, the trial judge did permit the introduction of evidence regarding petitioner Mann’s state of intoxication. However, Fox states that it was also in the trial judge’s discretion whether or not he considered the evidence sufficient to merit instructing the jury on the effect of intoxication on specific intent.

In the instant case, the trial judge gave the following charge as to the effect of intoxication of the purpose element of the crime of aggravated burglary.

The defendant claims that he was intoxicated and under the influence of drugs and, therefore, was not able to form the purpose to commit a theft offense.
Intoxication or being under the influence of drugs exists when a person consumes a quantity of intoxicating beverage containing alcohol or uses drugs sufficient to adversely affect his mental process and to deprive him of that clearness of intellect that he would otherwise have possessed.
Intoxication and/or being under the influence of drugs is not an excuse for an offense. However, such evidence is admissible for the purpose of showing that the defendant was so intoxicated or under the influence of drugs that he was incapable of forming the purpose or having the knowledge to commit the offense of “Aggravated Burglary”.
On this issue the burden of proof is upon the defendant to establish by a preponderance or the greater weight of the evidence that at the time in question he was incapable of forming a purpose or having the knowledge to commit the offense.

Trial Transcript, Ct. of Common Pleas, Ashtabula County at 306.

The trial court continued:

If the defendant fails to establish the defense of being under the influence of alcohol and drugs, the State still must prove to you beyond a reasonable doubt all of the elements of the crime charged.

Id. at 307.

As this Court emphasized in its August 26, 1985 opinion and order, the Sixth Circuit and other courts have held that placing the burden of proving intoxication on the defendant does not violate due process. Once again, this Court believes that viewing the jury charge as a whole under the test of Cupp v. Naughton, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) leads to the conclusion that the State was still required to prove all the elements of . the offense beyond a reasonable doubt. Hence, petitioner’s due process rights were not violated by placing the burden of proof on the defendant as to the affirmative defense of intoxication. State v. Fox does not deny this Court’s finding that there was no due process violation.

Accordingly, petitioner’s Motion to Alter or Amend this Court’s judgment of August 26, 1985 is denied; petition for writ of habeas corpus is denied.

IT IS SO ORDERED.

      . The burden of proof, by a preponderance of the evidence, for an affirmative defense is upon the accused under Ohio Revised Code § 2901.-05(A) as amended in 1978. Under Ohio Revised Code § 2901.05(C), an "affirmative defense” is either (1) a defense expressly designated as affirmative by statute, or (2) a defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.

      . Vaughn also notes that "[h]istorically a majority of the states have placed the burden of proving the defense of voluntary intoxication on the defendant in a criminal case.” Id. at 934.

      . Petitioner did cite the first two lines of this quoted passage from Fox at page 6 of his Objections to the Magistrate’s Report and Recommended Decision. However, it was quoted only for the purpose of ”stat[ing] the general rule of intoxication” in Ohio.