author: DIANA E. MURPHY, District Judge.

text:
    ST. JUDE MEDICAL, INC., Plaintiff, v. INTERMEDICS, INC. and Carbomedics, Inc., Defendants. CARBOMEDICS, INC., Plaintiff, v. ST. JUDE MEDICAL, INC. and Sorin Biomedica, S.P.A., Defendants. CARBOMEDICS, INC., GA Technologies, Inc., Plaintiffs, v. ST. JUDE MEDICAL, INC., Defendant.
    Civ. Nos. 4-84-267, 4-84-529 and 4-84-643.
    United States District Court, D. Minnesota, Fourth Division.
    April 30, 1985.

      See also 8 Cir., 764 F.2d 500.
    R. Walter Bachman, Lindquist & Vennum, Minneapolis, Minn., and John D. Levine, and Michael E. Bress, Dorsey & Whitney, Minneapolis, Minn., for St. Jude Medical, Inc.
    Edmund McCabe, and Sydelle Pittas, McCabe and Gordon, Boston, Mass., and Leon Goodrich, Oppenheimer, Wolff, Foster, Shepard & Donnelly, St. Paul, Minn., for CarboMedics, Inc. and Intermedies, Inc.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

These actions arise from a manufacturing relationship involving St. Jude Medical, Inc. (St. Jude), Intermedies, Inc. (Intermedies), and CarboMedics, Inc. (CarboMedics). In Civil No. 4-84-267, St. Jude charges CarboMedics and Intermedies with breach of contract, misappropriation of trade secrets by illegal means, conversion, unfair competition and violations of the antitrust laws. In Civil No. 4-84-529, CarboMedics alleges that St. Jude misappropriated its trade secrets and breached several confidentiality agreements. CarboMedics and GA Technologies, Inc. (GA) brought another action, Civil No. 4-84-643, against St. Jude alleging patent infringement. St. Jude has counterclaimed in that suit.

These cases have generated many discovery disputes and many motions. On October 10, 1984, this court granted St. Jude’s motion for a preliminary injunction and ordered CarboMedics to begin to manufacture and deliver carbon coated heart valve components to St. Jude. On November 28, 1984, the court denied a motion by CarboMedics to vacate, stay or modify the injunction order. On December 14, 1984, the Eighth Circuit Court of Appeals denied a stay, but remanded the matter to this court to amend its order to make available to CarboMedics a $1,000,000 loan “under normal commercial terms” and to determine the price CarboMedics should receive for the carbon components. By order of December 21, 1984, in this court’s absence, the Honorable Paul Magnuson ordered CarboMedics, among other things, to “place orders immediately for the fastest possible delivery of all equipment necessary” to comply with this court’s order, and to submit its price and loan materials by January 11, 1985. The loan terms and the interim price of the components, as well as several other motions relating to discovery disputes and sanctions, were referred to Special Master Morris M. Sherman, who was appointed on March 15, 1985. On April 3, 1985, the court partially granted the motion of CarboMedics and Intermedies to dismiss several of St. Jude’s causes of action in the amended complaint in Civil No. 4-84-267. The court dismissed causes of action three and four, but granted St. Jude leave to amend its Section 2 Sherman Act claims. The court also denied St. Jude’s motion for sanctions related to the Rule 12 motion.

The matter is now before the court upon the motions of St. Jude for further injunctive relief and for civil contempt. St. Jude asks the court to enjoin CarboMedics from disclosing non-public technical information regarding bi-leaflet heart valves or their components to the People’s Republic of China (China) and from using any of Intermedies or its allegedly limited resources to make heart valves or components for direct sale in China or pursuant to a joint venture with China, until CarboMedics is meeting the needs of St. Jude. St. Jude also asks the court to find CarboMedics, Intermedies, Jack C. Bokros, and G. Russell Chambers in contempt. It proposes that the corporation be fined $1,000,000 and the individuals $50,000; amounts which could be almost fully reclaimed if CarboMedics began supplying enough components to assemble 600” St. Jude valve sets a week.

Background

St. Jude contends that the court’s November 28, 1984 Order required CarboMedics to meet its demand for heart valves. It states that since October 1984 CarboMedics has had orders from St. Jude requesting delivery of components at a rate enabling St. Jude to assemble 600 usable valve sets per week. It also states that CarboMedics had 6,406 components in the final stages of production at that time. See aff. of Robert Akins dated October 30, 1984. Despite its orders and the availability of these components, St. Jude asserts that it did not receive any components until January 14, 1985. During January 1985, St. Jude was able to assemble 144 usable valve sets. In February 1985, it received 2,480 components or 548 usable valve sets. Since February 26, 1985, the weekly shipments have contained 325; 214; 342; and 232 potential valve sets. Aff. of Richard Kramp. St. Jude contends that this amount of valves only supplies 30 to 50% of the worldwide demand.

St. Jude argues that the evidence shows that CarboMedics and Intermedies have consciously decided not to comply with the court’s injunction order even though — despite contrary representations made to this court and to the Eighth Circuit Court of Appeals — they are fully capable of doing so. It contends that CarboMedics did not send purchase orders to equipment manufacturers until January 1985 even though this court’s injunction order issued three months earlier. Further, St. Jude stated that G. Russell Chambers, Intermedies’ Chairman of the Board and sole director of CarboMedics, wrote letters in February 1985 to equipment manufacturers to inform them that Intermedies had not approved CarboMedics’ purchases and was not guaranteeing payment on them. Moreover, it states that CarboMedics has decided not to hire the necessary employees to enable it to meet demand.

In addition, St. Jude alleges that CarboMedics, Intermedies and their officers have misled this court and the Court of Appeals concerning CarboMedics’ allocation of resources by concealing its crash development and production program for its own bi-leaflet heart valve, the PRC valve, named for China. St. Jude charges that CarboMedics has allocated personnel, funds, and machinery specially tooled for production of St. Jude heart valve components to the PRC program and that the program is geared toward early Food and Drug Administration (FDA) approval for this country. It further states that much of these activities took place when its preliminary injunction motion was pending before the court.

St. Jude summarizes the activity on the PRC valve as follows. It notes that a “PRC Pre-Pilot Production Meeting” was held July 26, 1984, followed the next day by a memorandum detailing test results. St. Jude charges that a flurry of production activity subsequently took place and that CarboMedics hired a consultant on August 29, 1984 to advise it concerning negotiations with China about the establishment of a heart-valve manufacturing facility there. It asserts that negotiations took place with China during September 1984 and that the Shanghai Medical Equipment Research Institute sent CarboMedics a letter that month requesting information, including technical specifications, “concerning the assembly and production of [the] St. Jude artificial valve in China.” Testing of the bi-leaflet PRC valve began on September 27, 1984 and continued after the court’s injunction order of October 10, 1984, according to St. Jude. In November 14,1984, a letter of intent was signed by Bokros and a representative of the Shanghai Institute. St. Jude states that $1,500,000 has been allocated to the PRC project and that this and other projects take priority over production of the St. Jude valve components.

CarboMedics takes issue with St. Jude’s factual presentation, as well as its interpretation of the facts. It states that the court’s previous orders have not required it to supply St. Jude with 500-600 valve sets per week, nor does the parties’ 1983 supply contract provide that CarboMedics will supply all of St. Jude’s requirements. It argues that worldwide demand cannot be defined and that supply of 500-600 valve sets would allow St. Jude to restock its inventory. CarboMedics notes that St. Jude reduced its requirements in May 1983 to 300 valve sets per week and suggests that this figure might be the true indication of demand.

CarboMedics states that it took immediate steps in response to the court’s injunction order, but sought interim relief because compliance placed Intermedies in jeopardy of default of its loan agreements. It asserts that deliveries did not commence until January because St. Jude refused to specify visual acceptance standards for the heart valve components. It also states that it is impractical for it to produce more than 200 to 250 valve sets a week when St. Jude intends to stop taking deliveries as soon as it finds a second source.

In addition, CarboMedics states that this court's order of November 28, 1984 did not require St. Jude to be granted top priority in production at the expense of its other customers. Accordingly, CarboMedics’ vice president in charge of operations decided that production of St. Jude components should be added at the bottom of the pre-existing projects and products going through the shop. CarboMedics asserts, however, that it has purchased additional equipment to produce components for St. Jude and that production of these components has higher priority than several other heart valve component ordérs. See Akins depo. at 108-109. It argues further that good faith required G. Russell Chambers to inform machine manufacturers that Intermedies’ credit was not available to CarboMedics in these particular transactions.

CarboMedics asserts that its PRC project was one of these pre-existing projects and that it was a direct response to the revenue void left by the loss of St. Jude’s business in 1983. It states that the exhibits filed by St. Jude show that the attempted development of a PRC valve was under way months before the court entered its injunction. CarboMedics asserts that the PRC project is still in the research and development stage at this point and that production of the PRC valve has had to take its turn in pre-existing production plans and schedules. It asserts that costs to develop and study the valve have totalled only $320,183 thus far, and that it expects to incur costs of approximately $480,000 in 1985, rather than the $1,500,000 St. Jude alleges. CarboMedics also states that it has not revealed non-public technical information concerning the St. Jude valve to China.

Discussion

A. Motion for Further Injunctive Relief

Whether further injunctive relief should be granted depends upon the showing made on the following factors: (1) the threat of irreparable harm to the movant;

(2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant;

(3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Systems v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir.1981). The Court of Appeals in Dataphase stressed that the ultimate question in granting preliminary relief is “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” 640 F.2d at 113. The court’s Memorandum Opinion and Order of October 10, 1984 and its Order of November 28, 1984 sought to maintain a status quo until the merits of the action could be determined. Accordingly, the court’s injunction reinstated the parties’ recently-severed manufacturing relationship and ordered CarboMedics to continue to supply components to St. Jude in the interim period before trial.

After carefully evaluating the parties’ arguments, the court finds that St. Jude’s present injunction request seeks relief beyond the maintenance of a status quo. St. Jude, in effect, asks this court to run CarboMedics’ business in a detailed day-to-day manner, by dictating which projects must be held in abeyance and which must be accelerated. Such involvement by the court is inappropriate. The previous injunction order sought to maintain a status quo by ordering CarboMedics to produce components for St. Jude, but it allowed CarboMedics discretion in arranging its business to do so while carrying on with other projects. The current relief requested would involve the court in the management of CarboMedics’ business.

In addition, the relief requested by St. Jude is not justified by the Dataphase factors. St. Jude argues that it will be irreparably harmed by CarboMedics’ continued refusal to supply St. Jude with components and by disclosure of its trade secrets to a foreign government. CarboMedics counters by pointing to St. Jude’s record sales and earnings in 1984,

The court recognizes that St. Jude’s earnings for 1984 are artificially inflated to the extent it did not pay for replacement inventory, but it is currently being supplied with a steady flow of components. The situation is different from when the previous injunction issued; then St. Jude was receiving no components at all. Certainly St. Jude would like to receive more components, but St. Jude is at least able to carry on some business of supplying heart valves pending trial on the merits. Moreover, St. Jude has not demonstrated that CarboMedics intends to disclose or has disclosed St. Jude’s non-public technical information to China. The absence of a showing of irreparable harm is sufficient grounds upon which to deny a preliminary injunction. E.g., Harris v. United States, 745 F.2d 535, 536 (8th. Cir.1984).

Further, the balance of harms does not favor St. Jude in its quest for further injunctive relief. Unlike the situation in October, 1984, St. Jude is receiving heart valve components from CarboMedics and CarboMedics is suffering some dislocation of its business to provide those components. While St. Jude is undoubtedly harmed by its inability to receive 100% of its component needs, this harm is not irreparable and does not exceed the harm that CarboMedics would suffer if this court were to order cessation of the PRC project.

St. Jude asserts that it has established a likelihood of success on the issues of supply and of CarboMedics’ disclosure of confidential information to China. The evidence produced by St. Jude at this point does not demonstrate that St. Jude will succeed on the Chinese disclosure issue. As noted in the October 10, 1984, Memorandum Opinion and Order, the record does demonstrate that St. Jude has raised substantial questions which call for more detailed exploration concerning the supply contract. Unlike the situation then, however, the other equities do not persuade the court that further injunctive relief should issue at this time.

Finally, St. Jude has not demonstrated that the public interest is best served by issuance of further injunctive relief. The public undoubtedly benefits from the continued availability of what was last year the most widely-prescribed mechanical heart valve in the United States. That valve is now being supplied to some extent by St. Jude, however. While St. Jude asserts that a rate of 200-250 valve sets a week forces it to ration its valves, it does not supply the court with evidence detailing the amount of valves required by hospitals, patients or surgeons. Moreover, the public also has an interest in research and development programs which may lead to a better type of heart valve. At this point in the proceedings, the court does not have the necessary information to analyze the quality of CarboMedics’ PRC valve even if it were appropriate to do so. Upon the evidence presented by St. Jude, however, the court finds that the equities do not justify enjoining CarboMedics from proceeding with the PRC project. Such an injunction would alter rather than maintain the status quo. See Ryko Manufacturing Co. v. Eden Services, 759 F.2d 671, 674 (8th Cir.1985).

B. Motion for Civil Contempt

A court may enforce a preliminary injunction by holding a violator in civil contempt and granting remedial relief to the party injured by violation of the order. Magnesco Restaurants v. Arthur Treacher’s Fish & Chips, Inc., 689 F.2d 1150 (3rd Cir.1982); Chanel Industries, Inc. v. Pierre Marche, Inc., 199 F.Supp. 748 (E.D.Mo.1961). United States Steel Corporation v. United Steel of America, 398 F.Supp. 449 (D.Minn.1975). Presentation of clear and convincing evidence is sufficient to warrant imposition of a civil contempt sanction. N.L.R.B. v. Blevins Popcorn Co., 659 F.2d 1173, 1183 (D.C.Cir.1981); see Wright & Miller, Federal Practice and Procedure, Civil Vol. 10 & 10A § 2960, p. 591 (1973).

St. Jude has shown that CarboMedics has construed the court’s orders in a hyper-technical manner so as to excuse noncompliance with the spirit of the orders. For example, deposition testimony indicates that CarboMedics did not order the necessary equipment to comply with the injunction until almost three months after entry of this court’s October 10,1984 order. The refusal to buy equipment continued even after the Court of Appeals had denied a stay on December 14, 1984. St. Jude charges that this conduct resulted from CarboMedics construing the injunction as not requiring the taking of steps necessary to begin immediate production of St. Jude components. CarboMedics has also suggested to the Court of Appeals that it cannot accept the $1,000,000 loan offered by St. Jude on December 14, 1985 until this court determines the contested loan terms.

St. Jude has also shown that CarboMedics has been less than’ candid in describing its attempt to comply with this court’s injunction order. No mention was made to this court until November, 1984 about the alleged impossibility of complying with the injunction order St. Jude first proposed in August of 1984. Nor was any mention made of the PRC valve project until the present motions were brought by St. Jude. CarboMedics has submitted a number of reasons why it states it has not consistently produced components for more than 250 heart valve sets per week. St. Jude has demonstrated that several of these excuses are “red herrings”.

Although this showing by St. Jude suggests that CarboMedics, its parent, and their officers may not be complying in good faith with the court’s previous injunction order, the court cannot conclude from the present record that a weekly supply of 200-250 valve sets constitutes contempt. It appears that CarboMedics can supply more components than this, but the court is uncertain as to the specific level CarboMedics should be producing. St. Jude states that the current amount satisfies, at best, only 50% of the worldwide demand, but it has not submitted data to support this assertion. Moreover, it is not clear what level of valve sets per week would continue the status quo between the parties. While the parties’ 1983 supply contract granted St. Jude the right to purchase at least 600 valve sets a week for ten of 12 months, St. Jude notified CarboMedics in May 1983 that it only needed 300 valve sets per week for the balance of the year. Under these circumstances, St. Jude’s motion must be denied at this time.

St. Jude has made enough of a showing, however, to justify referring the issue of compliance to the Special Master for a report. The Master shall make findings as to what number of weekly valve sets would preserve the status quo in this interim period before a resolution of the merits is reached and whether CarboMedics should be required to manufacture that amount for St. Jude in order to comply in good faith with this court’s injunction. The parties shall have ten days after issuance of this order to supply the Special Master with pertinent materials on this issue.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. The motion of St. Jude Medical, Inc. for further injunctive relief is denied.

2. The motion of St. Jude Medical, Inc. for civil contempt is denied at this time.

3. The issue of compliance with this court’s injunction is referred to Special Master Morris M. Sherman for his report and recommendation concerning the matters mentioned in the final paragraph of this memorandum opinion. The parties shall have ten days after issuance of this order to submit materials on compliance to the Special Master.

      . In addition, CarboMedics has filed two motions for partial summary judgment. One motion seeks summary judgment on the antitrust claims in St. Jude’s first and second cause of action in the amended complaint in Civ. No. 4-84-267. CarboMedics has also moved for summary judgment on St. Jude’s fifth cause of action which alleges breach of the parties’ 1983 supply contract. The latter motion has norteen fully presented to the court as St. Jude’s reply materials have not yet been received.
      Further review of the factual background can be found in this court's Memorandum Opinion and Order of October 24, 1984.

      . CarboMedics states that it abandoned its first conception, the "PRC I” in favor of a new design, the "PRC II”, late in 1984. If testing begins as scheduled, it will take at least 15 months. Bokros aff.

      . St. Jude argues that injunctive relief is appropriate under Section 16 of the Clayton Act, 15 U.S.C. § 26. It contends that it need not prove actual injury but must only show a significant threat of injury from an impending violation of the antitrust law. It cites Rosebrough Monument Co. v. Memorial Park Cemetary Ass’n, 666 F.2d 1130, 1147 (8th Cir.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982), for that proposition. Rosebrough is distinguishable, however, because a determination had already been made in that case that the antitrust laws had been violated. In the instant case, no such determination has been made. Moreover, Section 16 specifically provides that injunctions should issue under "the same conditions ... as injunctive relief ... is granted by courts of equity ... and upon ... a showing that the danger of irreparable loss or damage is immediate ____” 15 U.S.C. § 26. Section 16, therefore, does not provide authority for the issuance of an injunction where St. Jude has not demonstrated irreparable harm.

      . CarboMedics’ motion for partial summary judgment on the supply contract is not properly before the court at this time as St. Jude has not yet submitted its responsive materials.


source: Caselaw Access Project

author: GADBOIS, District Judge.

license: Public Domain

text:
    Maurice ARMSTER, Plaintiff, v. CITY OF RIVERSIDE, et al., Defendants.
    No. CV 83-7646 RG (Mcx).
    United States District Court, C.D. California, Los Angeles Division.
    May 1, 1985.

      Stephen Yagman, Yagman & Yagman, Los Angeles, Cal., for plaintiff.
    John M. Porter, Roberts & Morgan, Riverside, Cal., for defendants.
   MEMORANDUM

GADBOIS, District Judge.

On July 5, 1983, at approximately 8:45 p.m., the plaintiff, Maurice Armster, entered a women’s restroom in an office complex in Riverside, California. Armster, who worked as a janitor at the office complex, allegedly entered the women’s restroom to perform his janitorial duties. While Armster was in the restroom former defendant Kathleen Keast emerged from one of the lavatory stalls and exited the restroom. Kathleen Keast, evidently surprised at encountering a male in the women’s restroom, alerted former defendant Paul Keast, her husband, and defendant Sam Spiegel, of Armster’s presence in the restroom. Paul Keast is a retired Riverside, California police officer and defendant Sam Spiegal is a Corona, California police officer who was off duty at the time of the incident.

Armster evidently encountered Paul Keast and defendant Spiegel outside the restroom. At this point, defendants M.N. Smail and “Adolf” Beecher, on duty Riverside, California police officers, arrived at the scene allegedly to investigate a report that an off-duty police officer was detaining a suspicious subject at that location. Armster entered another restroom and was pursued by Paul Keast and Spiegel. Smail and Beecher, still outside this second restroom, heard a struggle taking place in the restroom and entered the restroom. Armster alleges that Smail and Beecher stood by as Paul Keast and Spiegel beat him up. Smail and Beecher concede that there was a struggle in progress when they entered the restroom but contend that Spiegel was trying to subdue Armster in order to place him under citizen’s arrest. Smail put his handcuffs on Armster and the struggle quickly ceased. Armster was kept handcuffed for approximately forty-five minutes, after which he was released.

As a result of this incident, Armster filed this action under the Civil Rights Act of 1871, 42 U.S.C. §§ 1981, 1983, 1985(3) (1984), against Smail, Beecher, Spiegel, Paul and Kathleen Keast, and the city of Riverside. The Keasts were dismissed as defendants in this action on March 13, 1985. In this motion Smail and Beecher move for summary judgment pursuant to Federal Rule of Civil Procedure 56, Fed.R.Civ.P. 56, on all the plaintiff’s claims against them.

ANALYSIS:

THE PLAINTIFF’S SECTION 1985 CLAIM.

In addition to his claim under 42 U.S.C. section 1983 (1984), which is discussed below, the plaintiff, Maurice Armster, alleges that the defendants engaged in a conspiracy to deprive him of certain constitutional rights in violation of 42 U.S.C. section 1985 (1984). This court should assume that Armster is alleging a violation of section 1985(3) because the other subsections of section 1985 are inapplicable to the case at hand. See Miller v. Indiana Hospital, 562 F.Supp. 1259, 1281-83 (W.D.Pa.1983). Section 1985(3) provides a cause of action against persons who “conspire ..., for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3).

The Supreme Court has made clear that section 1985(3) applies only when there is “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1797, 29 L.Ed.2d 338 (1971). Section 1985(3) does not require proof of a specific intent to deprive a person of a federal right made definite by decision or other rule of law. Griffin, 403 U.S. at 102 n. 10, 91 S.Ct. at 1798 n. 10. “Section 1985(3) ... contains no specific requirement of ‘willfulness’ ____ The motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus.” Id. at 102 n. 10, 91 S.Ct. at 1798 n. 10.

It is true that in the case at hand the plaintiff is black and all the defendants are white. Beyond bringing this fact to the court’s attention, however, the plaintiff presents absolutely no evidence supporting his allegation that the defendants acted out of racial, or otherwise class-based, invidiously discriminatory animus. Thé lack of evidence supporting this allegation is not surprising in light of the fact that class-based invidiously discriminatory animus is a purely subjective state of mind tangible evidence of which is difficult to produce. Nevertheless, as another federal district court has noted, “... just because racial animus is important ... that does not suspend the application of Rule 56.” Smith v. Dallas County Board of Education, 480 F.Supp. 1324,1337 (S.D.Ala.1979); see Carter v. Cuyler, 415 F.Supp. 852, 857 (E.D.Pa.1976) (the allegation “I think that this conspiracy is based partly on racial animus” is a “conclusory allegation ... insufficient to establish a § 1985(3) claim”). Furthermore, defendants Smail and Beecher state in separate declarations that their actions were not “engaged in with evil motive or intent or with a negative racial motive or intent.”

Because the plaintiff has presented no evidence that defendants Smail and Beecher acted out of racial, or otherwise class-based, invidiously discriminatory animus and these defendants have presented evidence to the contrary — albeit in the form of declarations — defendants Smail and Beecher’s motion for summary judgment on the plaintiff’s section 1985(3) claim is granted.

II. THE PLAINTIFF’S SECTION 1983 CLAIMS.

In addition to their section 1985(3) claim against the defendants, the plaintiff also alleges a claim against the defendants under 42 U.S.C. section 1983 (1984). Section 1983 provides a cause of action against individuals who, while acting under color of state law, deprive others of federal rights, privileges, or immunities. Id. The plaintiff's section 1983 claim is based on two separate allegations: (1) that defendants Smail and Beecher stood by and watched while two white individuals (defendant Sam Spiegel and former defendant Paul Keast) beat up the plaintiff; and (2) that defendants Smail and Beecher unreasonably detained the plaintiff in violation of his fourth amendment rights.

Neither the United States Supreme Court nor the United States Court of Appeals for the Ninth Circuit has addressed the question of whether a section 1983 claim can be premised on an allegation that defendant police officers stood by while private citizens attacked or beat up another private citizen. In Bruner v. Dunaway, 684 F.2d 422 (6th Cir.1983), the United States Court of Appeals for the Sixth Circuit held that a section 1983 claim may be premised on an allegation that a police officer stood by and watched while fellow police officers beat up the plaintiff. The Sixth Circuit accepted the plaintiff’s argument that “even assuming arguendo the evidence did not demonstrate personal involvement in the administering of the beatings, the inaction of the ‘nonparticipating’ officers while [the plaintiff] was being assaulted subjects those officers to liability.” Id. at 425; see Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972) (“We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.”); see also Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981) (“We conclude although [the defendant] was a subordinate the evidence is sufficient to hold him jointly liable [under § 1983] for failing to intervene if a fellow officer, albeit his superior, was using excessive force and otherwise was unlawfully punishing the prisoner.”)

As noted above, Armster alleges that defendants Smail and Beecher, Riverside police officers, stood by and watched while defendant Spiegel and former defendant Paul Keast beat up the plaintiff. Defendants Smail and Beecher, on the other hand, contend that they did not stand by and watch while Armster was beaten up; instead, they contend that the struggle between Armster and the other defendants ended almost immediately upon their arrival at the scene and that their intervention was unnecessary.

Armster’s declaration in opposition to the defendants’ summary judgment motion does not entirely support his aforementioned allegation because Armster states that he was knocked unconscious before defendants Smail and Beecher were close enough to the scene to intervene and that he awoke only after he was handcuffed. However, in his declaration, Armster does state: “I asked defendants Smail and Beecher for assistance and asked them to tell Keast to take his foot off my backside. They failed to do so.”

Furthermore, defendants Smail and Beecher’s declarations, far from contradicting Armster’s version of the incident, actually lend credence to his claim that they were present while he was being beaten by Spiegel and Keast. Smail states in his declaration:

As I arrived at the door, the two white male individuals, who were subsequently identified as Paul Keast and Samuel Spiegel, were struggling with the black individual, who was subsequently identified as Maurice Armster, and Mr. Keast and Mr. Spiegel were in the process of removing Mr. Armster from the restroom and placing him on the ground, at which time Mr. Spiegel indicated that he was placing Mr. Armster under arrest, and as Mr. Armster was still struggling, I applied my handcuffs to him, and shortly thereafter the struggle stopped.

Beecher makes a similar statement in his declaration.

Defendants Smail and Beecher’s declarations reveal that they were present during a portion of the time that Armster was unconscious and they witnessed a struggle between Armster, Spiegel and Keast as well as Spiegel and Keast’s act of placing Armster on the ground. Common sense suggests that the defendants’ act of placing Armster on the ground probably was done forcefully. Thus the evidence before this court, when viewed in the light most favorable to Armster, is sufficient to create a genuine issue of material fact on the question of whether defendants Smail and Beecher stood by and failed to intercede while defendant Spiegel and former defendant Keast beat up Armster.

Finally, the defendants’ attempt to distinguish the Sixth Circuit’s decision in Bruner on the ground that in Bruner the plaintiff was beaten by police officers while in the case at hand the plaintiff was beaten by private citizens making a citizen’s arrest is unpersuasive. With a few exceptions not relevant to the case at hand, a police officer has a duty to intercede to prevent an individual from being subjected to excessive, unlawful physical force regardless of who is applying the unlawful force to the individual. In fact, a police officer may be expected to intercede earlier in such a struggle when a private person is using possibly excessive force than when a fellow officer is using such force because police officers using force are presumed to know the limits of legally permissible force.

The second ground upon which Armster’s section 1983 claim is based is his allegation that defendants Smail and Beecher unreasonably detained Armster in violation of his fourth amendment rights. As can be expected, the defendants argue that Armster was not unreasonably detained because his detention lasted only long enough for them to conduct an investigation and to conclude that there were no grounds upon which to book Armster.

It is clear that a section 1983 action can be predicated on a fourth amendment claim for false or illegal arrest. See, e.g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Gonzales v. City of Peona, 722 F.2d 468 (9th Cir.1983).

The fourth amendment applies to seizures of the person, including brief investigatory stops. United States v. Cortez, 449 U.S. 411, 417,101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). An investigatory field stop that constitutes only a limited intrusion on the personal security of the detainee and which is justified by substantial law enforcement interests may be made on less than probable cause, Michigan v. Summers, 452 U.S. 692, 699, 101 S.Ct. 2587, 2592, 69 L.Ed.2d 340 (1981), but the officers detaining the suspect must at least have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95.

The duration of an investigatory detention cannot be unreasonably long. As the Supreme Court stated in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983):

The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the office’s suspicion in a short period of time.

Id. at 500, 103 S.Ct. at 1325. However, as the Supreme Court made clear in a recent decision, United States v. Sharpe, — U.S. - — ,-, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985), there is not a “hard-and-fast time limit for a permissible” investigative detention. The Sharpe Court went on to state:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant____ A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.

— U.S. at-, 105 S.Ct. at 1575.

If a detention does go beyond an investigative detention to constitute a de facto arrest, it must be based on probable cause. Royer, 460 U.S. at 498-99, 103 S.Ct. at 1324-25; Dunaway v. New York, 442 U.S. 200, 208-09, 99 S.Ct. 2248, 2254-55, 60 L.Ed.2d 824 (1979).

There is no evidence before this court that defendants Smail and Beecher had probable cause to detain Armster. According to the declarations of Smail and Beecher, they were dispatched to the scene of the incident to investigate a report of an off-duty police officer detaining a suspicious subject at that location. This description of the plaintiff certainly did not give the defendants probable cause to believe Armster had done anything illegal. Likewise, there is no evidence before this court suggesting that anything defendants Smail or Beecher saw or heard at the scene of the incident gave them probable cause to believe Armster had done anything wrong. The fact that defendant Spiegel and former defendant Keast told defendants Smail and Beecher that they were making a citizen’s arrest of Armster should not be construed to constitute probable cause because there were no facts evidencing the validity of that arrest.

In fact, it seems possible that defendants Smail and Beecher did not even have a particularized and objective basis for suspecting Armster of criminal activity so as to justify an investigative detention. Whether such a basis existed constitutes a genuine issue of material fact precluding summary judgment on the plaintiffs seetion 1983 claim.

Assuming arguendo that defendants Smail and Beecher did have a particularized and objective basis for suspecting Armster of criminal activity, these defendants' still violated Armster’s fourth amendment rights if their detention of Armster went beyond the permissible limitations of a valid investigation detention to constitute a de facto arrest. The declarations of Smail, Beecher, and Armster reveal that the detention of Armster lasted at least one-half hour and may have lasted over an hour. During this period Smail and Beecher conducted an investigation to determine whether Armster should be arrested formally. When Smail and Beecher concluded that grounds did not exist for a formal arrest, they released Armster.

In determining whether defendants Smail and Beecher’s detention of Armster went beyond the grounds of permissible detention made on less than probable cause, this court must consider: (1) whether defendants Smail and Beecher diligently pursued a means of investigation that was likely to confirm or dispel their suspicions of Armster quickly; (2) whether it was necessary to detain Armster during this period; and (3) whether defendants Smail and Beecher were acting in a swiftly developing situation so as to preclude this court from unrealistically second-guessing the legality of their actions. See Sharpe, — U.S. at -, 105 S.Ct. at 1575. These considerations involve factual issues not addressed by the parties. This court therefore must treat these factual issues as genuine issues of material fact that preclude summary judgment on Armster’s section 1983 claim.

Because genuine issues of material fact still exist with respect to both of the allegations underlying Armster’s section 1983 claim, i.e., his allegation that defendants Smail and Beecher stood by and watched while others beat him up and that these defendants unlawfully detained him, defendants Smail and Beecher’s motion for summary judgment on the plaintiffs section 1983 claim is denied.

III. THE GOOD FAITH DEFENSE.

Defendants Smail and Beecher should be absolved of liability to the plaintiff if they acted in good faith during the incident in question. The test to determine whether a defendant may assert a “good faith” or “qualified immunity” defense is a purely objective one based on whether the conduct complained of violated “ ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Davis v. Scherer, — U.S. -,-, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). “Whether the official may prevail in his qualified immunity defense depends upon the ‘objective reasonableness of [his] conduct as measured by reference to clearly established law.’ ” Id.

This court holds that the law is clear that police officers may not stand by and watch private citizens physically accost another private citizen if the officers can with reasonable safety stop the attack. Likewise, at the time of the incident in question the law was clear that police officers could not detain a suspect for a considerable length of time on less than probable cause unless such detention was necessary to permit the police to investigate whether the suspect had in fact been involved in criminal activity.

If defendants Smail and Beecher either: (1) stood by and watched while others beat up on Armster and could have but failed to safely end the attack; or (2) unreasonably detained Armster in violation of his fourth amendment rights, not only should the good faith defense be unavailable to these defendants, but they should be liable to Armster under section 1983. As the discussion above makes clear, however, there are genuine issues of material fact relating to these allegations underlying Armster’s section 1983 claim, i.e., whether defendants Smail and Beecher stood by and watched as Armster was beaten up and whether they unreasonably detained him. These genuine issues of material fact preclude this court from ruling at this time on the availability to defendants Smail and Beecher of the good faith defense. Therefore, this court declines to rule at this time on the availability of this defense to these defendants.

IV. PUNITIVE DAMAGES.

Punitive damages are appropriate in a section 1983 action where there is a showing of the defendants’ evil motive or intent or their callous disregard for the federally protected rights of the plaintiff. Smith v. Wade, 461 U.S. 30,103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The genuine issues of material fact underlying Armster’s section 1983 claim preclude this court from ruling at this time on his punitive damages claim. Therefore, the defendants’ motion for summary judgment on this claim is denied.


author: EDWARD C. REED, Jr., District Judge.

text:
    The TAHOE-SIERRA PRESERVATION COUNCIL, INC., a California non-profit corporation and membership organization, et al., Plaintiffs, v. The TAHOE REGIONAL PLANNING AGENCY, a separate legal entity created pursuant to an interstate Compact between the States of California and Nevada, et al., Defendants.
    No. CV-R-84-257-ECR.
    United States District Court, D. Nevada.
    May 10, 1985.

      Hoffman, Lien, Faccinto & Spitzer by Lawrence L. Hoffman, Robert Damon Spitzer, Gregg R. Lien, Tahoe City, Cal., for plaintiffs.
    Richard M. Frank, Cal. Dept. of Justice, Sacramento, Cal., for defendant State of Cal.
    Marta Adams, Deputy Atty. Gen., Environmental Div., Gary A. Owen, Carson City, Nev., for defendant TRPA.
   ORDER

EDWARD C. REED, Jr., District Judge.

Lake Tahoe, a unique high Sierra mountain lake and the dominant natural feature of the Tahoe basin, is losing its most valued quality, its pristine clarity. In recognition of this deterioration, the states of Nevada and California and the United States Congress ratified the Tahoe Regional Planning Compact (hereinafter Compact). The Compact is designed to protect, preserve, and enhance the Lake Tahoe Basin. See Tahoe Regional Planning Compact, Pub.L. 91-148, 83 Stat. 360, amended 1980 Pub.L. 96-551, 94 Stat. 3233, NRS 277.200, West’s Ann.Cal.Gov.Code, § 66801. In order to protect the natural beauty and economic productivity of the region, the Compact establishes a single agency, the Tahoe Regional Planning Agency (hereinafter TRPA), to coordinate and regulate development and use of properties in the Tahoe basin. Pursuant to its mandate under the Compact, TRPA adopted a regional plan which includes among other sections, a section dealing with land-use protection and development.

Following the adoption of the 1984 Regional Plan, plaintiffs, the Tahoe-Sierra Preservation Council and 364 named individuals (hereinafter Council), brought suit against TRPA, the members of TRPA, and the states of Nevada and California.

The gravamen of the particular claims of Council’s complaint is that TRPA’s regional plan, adopted April 26, 1984, through ordinances, regulations, and prohibitions, deprives them of their property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The theories relied upon by Council and the relief sought in its Complaint is as follows:

First Claim for Relief
Alleges that in violation of the Fifth and Fourteenth Amendments of the Constitution, the Regional Plan precludes SEZ-plaintiffs from making any reasonable or practical use of their property. Council seeks injunctive relief to prohibit TRPA from enforcing the provisions of the Regional Plan.
Second Claim for Relief
Alleges that the provisions of the Regional Plan constitute a taking of SEZ property under the Fifth and Fourteenth Amendments of the Constitution. Council seeks just compensation.
Third Claim for Relief
Allegations and relief same as First Claim for Relief except applied to Class 1, 2, 3 plaintiffs.
Fourth Claim for Relief
Alleges that the Regional Plan’s restrictions deny Class 1, 2, 3 plaintiffs equal protection. Council seeks injunctive relief.
Fifth Claim for Relief
Allegations and relief same as the Second Claim for Relief except applied to Class 1, 2, 3 plaintiffs.
Sixth Claim for Relief
Alleges that the provisions of the Regional Plan constitute a taking of plaintiffs’ benefits of utility services and assessment payments. Council seeks just compensation.
Seventh Claim for Relief
Alleges that TRPA inversely condemned plaintiffs’ property under 42 U.S.C. § 1983. Council seeks injunctive relief against TRPA and monetary damages from all defendants.

California, Nevada, and TRPA move this Court to dismiss Council’s complaint pursuant to Fed.R.Civ.P. 12(b)(6). The motions to dismiss attack the complaint for its purported failure to state a claim upon which relief can be granted. In support of its motion to dismiss, Nevada argues that: (1) the complaint is time barred; (2) the Eleventh Amendment bars any claims for damages; (3) Nevada cannot be held liable for assessments made by other government entities; and (4) when preventing harm to the environment, greater restrictions than normal are available to a regulating agency.

California argues in support of its motion that: (1) the Eleventh Amendment bars any claims for damages; (2) the complaint is time barred; (3) Council has failed to exhaust administrative remedies, (4) California is not liable for any alleged TRPA actions; (5) TRPA need not comply with due process; (6) TRPA’s Regional Plan complies with substantive due process; (7) TRPA’s restrictions do not violate equal protection; and (8) there has been no unconstitutional taking of plaintiffs’ properties.

Finally, TRPA argues: (1) TRPA members are immune from suit; (2) Council fails to present a concrete controversy and has failed to exhaust administrative remedies; (3) damages for inverse condemnation are not cognizable against TRPA; (4) the Regional Plan is a valid exercise of power; (5) Council erroneously subdivided the components of plaintiffs’ property rights; (6) the facts of this case do not support monetary damages under 42 U.S.C. § 1983; (7) the entire complaint is time barred; (8) plaintiffs were not denied due process; and (9) TRPA did not act in excess of its authority.

In support of several issues, defendants rely upon certain matters extrinsic to their motions to dismiss. Those issues will be treated as motions for summary judgment pursuant to Fed.R.Civ.P. 56. This order, therefore, will only address: (1) whether the Eleventh Amendment bars any claims for damages; (2) whether damages for inverse condemnation are cognizable against TRPA, and; (3) whether Council’s argument that deprivation of utility benefits and assessments paid state a claim for which relief may be granted.

For the purpose of the motions to dismiss, this Court must accept as established the well pleaded facts of the complaint. See Collins v. Hardyman, 341 U.S. 651, 652, 71 S.Ct. 937, 937, 95 L.Ed. 1253 (1951). We must deny the motions unless it can be said that plaintiffs can prove no set of facts in support of their claims. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). With this standard in mind, we turn to the issues presented.

I. Does the Eleventh Amendment bar Council’s money claims against Nevada and California

Both Nevada and California base their motions to dismiss in part on an argument that they are immune from a suit for monetary damages because of the Eleventh Amendment. Council counters with an allegation that both Nevada and California have waived their sovereign immunity to be sued in federal court over all matters arising from TRPA actions.

The Eleventh Amendment provides:

“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.”

U.S. Const.Amend. XI. Absent a state waiver, the Eleventh Amendment protects states from suits brought in federal courts by her own citizens as well as by citizens of another state. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890).

Nevada has not waived its eleventh amendment immunity. See NRS 41.-031(3); O’Connor v. Nevada, 686 F.2d 749, 750 (9th Cir.1982), cert. denied 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). Similarly, California has not generally waived its immunity. See Yuan Jen Cuk v. Lackner, 448 F.Supp. 4, 8 (N.D.Calif.1977) (three-judge court). Thus, Nevada and California are generally protected from money judgments by the Eleventh Amendment. See Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).

Council argues that even though states are generally immune from suit under the Eleventh Amendment, California and Nevada have waived their sovereign immunity. In support of its waiver argument, Council asserts that the recent 1980 amendments to the TRPA Compact waived any Eleventh Amendment immunity Nevada and California may have previously enjoyed. Nevada and California assert that neither state waived their sovereign immunity for actions arising from TRPA, nor was there any intent to do so.

A sovereign’s immunity may be waived and a state may consent to suit against it in federal court. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). That consent, however, must be unequivocally expressed. Id. The state’s immunity stems from a solemn recognition of the vital role that the doctrine of sovereign immunity plays in our federal system. Id. In evaluating whether a waiver has been made by a state, this Court is guided by the standard enunciated in Edelman v. Jordan: “In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman, 415 U.S. at 673, 94 S.Ct. at 1361. (citation omitted). Thus, it is with this standard in mind that we examine the TRPA Compact to determine whether there is an unequivocal waiver of immunity.

The Compact was amended in 1980. Council argues that those amendments regarding all substantive provisions of the Compact demonstrates an express waiver of any Eleventh Amendment claim for immunity. Council places heavy emphasis on the key role California and Nevada play in TRPA.

Specifically, Council points to Article VI(j) of the Compact to support its waiver argument. Council’s reliance on an article which merely establishes subject matter jurisdiction venue, statute of limitations, and standard of review principles for litigation brought under the Compact is misplaced. Council fails to address the fact that there is no express waiver of the states’ immunity in Article VI(j). Despite the Supreme Court’s clear mandate that all Eleventh Amendment waivers be expressed unequivocally, Council urges this Court to infer a waiver based upon the states’ intrinsic involvement in the Compact and the Compact’s provisions for litigation. This Court declines to do so. While it may be true that Nevada and California expanded their roles and involvement in TRPA by the 1980 amendments, this involvement does not constitute an unequivocal waiver.

Finally, relying on Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), Council further attempts to support its waiver argument. Council points to language the Petty court found to be a waiver and urges this Court to similarly find the language in the Compact a waiver. The Ninth Circuit specifically addressed and rejected this argument in Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353, 1361-1362 (1977) aff'd in part, rev’d in part on other grounds sub nom Lake County Estates v. TRPA, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).

In Petty, the Court relied upon express provisos added by Congress, which when read in conjunction with the sue and be sued clause in the Compact, reserved the jurisdiction of the federal courts in matters arising from the Compact. Petty, 359 U.S. at 281-282, 79 S.Ct. at 789-790. There was no express proviso attached by Congress when it approved the 1980 amendments to the TRPA Compact. See Pub.L. 96-551. As the Ninth Circuit points out, absent such a proviso, the immunity waiver must be found in the compact itself. Jacobson, 566 F.2d at 1362. The 1980 amendments relied upon by Council do not support a different result from Jacobson. In Jacobson, the Ninth Circuit found that, at best, the provision for bringing suit in either state or federal court was ambiguous and thus insufficient to constitute a waiver of immunity. The current provision is similarly ambiguous. The Compact now provides that legal actions arising out of or alleging a violation of the provisions of the Compact may be filed in the appropriate courts of California and Nevada and of the United States. See Article VI(j)(l). As with the reference to actions brought in the federal court of the original compact (Article VI(b)), the reference to a suit being filed in an appropriate court of the United States is admittedly ambiguous. Nevertheless, when read in conjunction with Article 111(a) which continues to provide that the TRPA is a separate legal entity this Court finds no waiver of immunity. See Jacobson, 566 F.2d at 1362. There has been no clear expression of congressional intent to abrogate the immunity granted and no clear expression of the states’ consent to the abrogation. Such expression must be evidenced before this Court may find a waiver. See Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. at 1360; Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173 n. 5 (9th Cir.1984). The 1980 Amendments to the Compact do not change the result of Jacobson. California and Nevada do not waive their eleventh amendment immunity.

Thus, Nevada’s and California’s motions to dismiss will be granted for the monetary damages sought by Council in the Second and Fifth Claims for Relief.

Relying on the Eleventh Amendment, Nevada and California also move this Court to dismiss Council’s claim under 42 U.S.C. § 1983. An action for inverse condemnation is cognizable under the federal civil rights statute. See MacLeod v. County of Santa Clara, 749 F.2d 541, 544 (9th Cir.1984). However, even though Council states a cognizable claim under § 1983, the eleventh amendment immunizes Nevada and California and the claim must be dismissed.

As the Ninth Circuit holds in Windward Partners v. Ariyoshi, 693 F.2d 928, 929 (9th Cir.1982):

“The framing of plaintiff’s claims as a § 1983 action does not change our conclusion. In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the Supreme Court held that section 1983 does not abrogate or ‘override’ the sovereign immunity of the states under the eleventh amendment.”

Thus, Nevada’s and California’s motions to dismiss Council’s Seventh Claim for Relief are granted.

II. May TRPA be sued for money damages based upon inverse condemnation

TRPA moves to dismiss Council’s Second and Fifth Claims for Relief based on the argument that damages for inverse condemnation do not lie against TRPA. TRPA argues that monetary damages are not available from an entity which lacks condemnation authority. The thrust of TRPA’s argument relies upon the Ninth Circuit opinion, Jacobson, 566 F.2d 1353. The Ninth Circuit, in addressing a claim for damages holds:

“[A] cause of action for inverse condemnation under the just compensation clause cannot be stated against the TRPA, its executive director or members of its governing board because they lack condemnation authority.”

Id. at 1358 (footnote omitted). Although on appeal this issue was not before the Supreme Court, that Court did state:

“The District Court dismissed the complaint. Although it concluded that the complaint sufficiently alleged a cause of action for ‘inverse condemnation,’ it held that such an action could not be brought against TRPA because that agency did not have the authority to condemn property.”

Lake Country Estates, 440 U.S. at 395-396, 99 S.Ct. at 1174-1175 (footnote omitted). The Supreme Court did not express any disapproval of the district court’s holding or of the Ninth Circuit’s affirmation.

Council, however, urges this Court to reject this holding on the basis of its “questionable precedential value.” Council asserts that money damages are appropriate relief for regulations which result in a taking.

The determination of appropriate relief for regulations which amount to a taking has not been settled under federal law. Council cites Justice Brennan’s dissent in San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981), in support of its argument that the Jacobson holding has been eclipsed. The Brennan dissent reached the merits of a case which the majority held to be unappealable because there was no final order. Justice Rehnquist did appear to give a majority vote by agreeing with Justice Brennan that:

“[0]nce a court establishes that there was a regulatory ‘taking,’ the Constitution demands that the government entity pay just compensation for the period commencing on the date the regulation first effected the ‘taking,’ and ending on the date the government entity chooses to rescind or otherwise amend the regulation.”

Id. at 653, 101 S.Ct. at 1304. This Circuit has similarly interpreted this as the view of the Supreme Court. See Martino v. Santa Clara Valley Water District, 703 F.2d 1141 (9th Cir.), cert. denied, — U.S.-, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983). Justice Brennan’s language is unequivocal and would demand monetary damages once a finding is made that a taking has occurred. However, Justice Brennan was not faced with a governmental entity lacking condemnation authority. Thus, Jacobson remains the law for damage claims against TRPA.

This Court is persuaded in part by Council’s arguments. However, we are unable to disregard the law of this Circuit as we have found it to be. Thus, TRPA’s motions to dismiss Council’s Second and Fifth Claims for Relief for money damages are granted. In addition, Council’s Seventh Claim for Relief, which attacks the zoning ordinances as a deprivation of civil rights under 42 U.S.C. § 1983 is also dismissed as to money damages. Jacobson v. Tahoe Regional Planning Agency, 474 F.Supp. 901, 903-904 (D.Nev.1979) affd 661 F.2d 940 (9th Cir.1981).

III. Does relief lie for compensation of utility assessments and expected benefit of utilities

All defendants move this Court to dismiss Council’s Sixth Claim for Relief. Council’s sixth claim asserts that recovery is available for assessments made against the property owners for construction of utility improvements and the owners’ expectation to receive the benefits of those utilities. Council seeks monetary damages and equitable relief.

Nevada, California, and TRPA argue that Furey v. City of Sacramento, 592 F.Supp. 463 (E.D.Calif.1984), should guide this Court to dismiss Council’s Sixth Claim for Relief. In his well-reasoned opinion, Judge Ramirez rejects the contention that an additional taking occurs when the components of property rights are subdivided in an attempt to gain recovery. Id. at 472. Relying upon Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), Judge Ramirez found that a single parcel may not be divided into discrete segments in order to allege that one component of the parcel has been taken. This Court adopts the reasoning of Judge Ramirez in Furey.

Council’s attempt to distinguish its claim from that claim dismissed in Furey merely serves to underline the similarities. Council argues that the thrust of its Sixth Claim for Relief is "... merely to restate the cause of action for inverse condemnation of Plaintiffs’ entire properties, with special emphasis on the taking of (1) Plaintiffs’ expectation to receive the benefits of the utility services and (2) Plaintiffs’ assessment payments. The latter two are clearly ‘sticks’ in the ‘bundle of rights’ comprising Plaintiffs’ property.” Council’s Opposition at 102. Council’s attempt to challenge TRPA’s zoning ordinances by severing two of its “sticks” fails to state a separate claim for which relief can be granted.

This Court finds that the analysis in Furey is correct and Council’s claim merely an attempt to subdivide the property rights of plaintiffs. Therefore, defendants’ motions to dismiss Council’s Sixth Claim for Relief will be granted.

IV. Conclusion

IT IS, THEREFORE, HEREBY ORDERED for the reasons stated above, that:

(1) Nevada’s motions to dismiss the Second, Fifth, Sixth, and Seventh Claims for Relief are GRANTED;

(2) California’s motions to dismiss the Second, Fifth, Sixth, and Seventh Claims for Relief are GRANTED;

(3) TRPA’s motions to dismiss the Second, Fifth, and Sixth Claims for Relief are GRANTED, and

(4) TRPA’s motion to dismiss the Seventh Claim for Relief of money damages is GRANTED.

IT IS FURTHER ORDERED that the remaining issues in defendants’ motions to dismiss shall be treated as motions for summary judgment in accordance with Fed. R.Civ.P. 12(b), 56. Defendants shall have 30 days within which to supplement said motions as motions for summary judgment. Plaintiffs shall thereafter have 30 days within which to respond to said motions as motions for summary judgment, and defendants shall thereafter have 15 days within which to file a reply.

      . The Compact imposes significant duties on the TRPA regarding the adoption of the regional plan. For example, the TRPA must first adopt "environmental threshold carrying capacities for the region" and within one year of this adoption, must amend the regional plan while achieving and maintaining these capacities. Compact, Art. V(b).

      . The named individuals allegedly own one or more parcels of real property located in the Tahoe Basin subject to the regulations of the Regional Plan.

      . This Court notes that in contrast to Council's position, the State of California has sued the TRPA alleging that the TRPA’s efforts to protect environmentally sensitive land has been inadequate. See California Motion to Dismiss at 5.

      . SEZ-plaintiffs are those landowners of property which has been classified by the Regional Plan as "Stream Environment Zone.”

      . Class 1, 2, 3 plaintiffs are those landowners of property whose land capability has been classified in the Regional Plan as Class 1, 2, 3.

      . Council has also named individual TRPA members in its complaint. The TRPA bases its argument to dismiss the individual board members on the Supreme Court’s holding that the TRPA members are immune from damages when they are acting in a legislative capacity. See Lake Country Estates, 440 U.S. 391, 406, 99 S.Ct. 1171, 1179, 59 L.Ed.2d 401 (1979). This Court, however, is unable to determine from the record before us whether the TRPA members are being sued for performance of their legislative duties. Therefore, as noted in the order, this Court converts this motion to summary judgment.

      . Council objects to any reliance on those extrinsic matters without a conversion to motions for summary judgment. However, Council’s admission that it has knowledge that matters outside the pleadings have been submitted constitutes notice in this Circuit and this Court is under no obligation to provide additional notice to Council that remaining issues could be transformed to motions for summary judgment. See Grove, Riddle, and Riddle v. Mead School; District, 753 F.2d 1528, 1532-3 (9th Cir. amended April 15, 1985); Garaux v. Pulley, 739 F.2d 437, 439-440 (9th Cir.1984).

      . NRS 41.031(3) provides:
      "The State of Nevada does not waive its immunity from suit conferred by Amendment XI of the Constitution of the United States."

      . Council also argues that the Supreme Court's examination of TRPA’s lack of Eleventh Amendment immunity should guide this Court to find California and Nevada have waived their immunity. See Lake Country Estates, Inc., v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). This Court finds this argument meritless. In Lake Country, the Supreme Court decided whether TRPA was entitled to the "immunity that the Eleventh Amendment provides to the compacting states themselves." Id. at 393, 99 S.Ct. at 1173. (emphasis added) (footnote omitted). Thus, not only did the Court implicitly recognize that California and Nevada enjoyed Eleventh Amendment immunity, but the analysis of the Court was whether the Eleventh Amendment should be extended beyond the compacting states (California and Nevada) to TRPA. The Court, in declining to expand the states' immunity to TRPA, found that it was not an arm of the state and there was no intention to confer immunity on TRPA. Id. at 402, 99 S.Ct. at 1177. The Lake Country Court specifically noted that it was not addressing whether or not there was any affirmative waiver of Eleventh Amendment immunity by the compacting states. Id. at 402, n. 23, 99 S.Ct. at 1178, n. 23.

      . This Court could find abrogation of a state's Eleventh Amendment immunity if an unequivocal expression of congressional intent to "overturn the constitutionally guaranteed immunity of the several states” is demonstrated. Pennhurst, 104 S.Ct. at 907 quoting Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979). However, even Council does not argue that Congress intended to abrogate California and Nevada’s sovereign immunity regarding the TRPA Compact.

      . Article VIII(e) of the Compact provides that no TRPA obligation shall bind either of the party states. This appears to negate any inference Council makes that Nevada and California intended to subject the states to liability for TRPA actions.

      . Article VI(b) of the original Compact commanded that suit should be brought in a court of the state where a violation of the Compact was committed or where the property was located "unless the action is brought in a federal court."

      . Nevada also asserts the Eleventh Amendment as a bar to the damages claims against TRPA. Nevada argues that any damages TRPA would be liable for would be paid by the treasuries of the compacting states and, therefore, the Eleventh Amendment bars any money claims against TRPA as it would be against the states. Some support for Nevada’s argument can be found in Pénnhurst, 104 S.Ct. 900. There, the Supreme Court holds "[t]he general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, ..." Id. at 908, n. 11 citing Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). Despite this recent pronouncement, this Court must rely on the clear mandate of the Supreme Court that the Eleventh Amendment is not a bar to damages claims asserted against TRPA and, thus, rejects Nevada's argument. Lake Country Estates, 440 U.S. 391, 99 S.Ct. 1171.

      . On the other hand, the California Supreme Court has made it clear that the appropriate remedy under state law for an unconstitutional regulation that operates as a taking is mandamus or declaratory relief rather than inverse condemnation resulting in monetary damages. Agins v. City of Tiburon, 24 Cal.3d 266, 275-77, 157 Cal.Rptr. 372, 598 P.2d 25 (1979), aff'd 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980).

      . Nevada and California also argue that the Eleventh Amendment bars any damages based on Council’s Sixth Claim for Relief. This Court, for the reasons stated in part I, of this Order, agrees that the Eleventh Amendment is an alternative ground for dismissing Council’s Sixth Claim for Relief against Nevada and California.


author: SHADUR, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Wayne WOJTAS, Defendant.
    No. 85 CR 48.
    United States District Court, N.D. Illinois, E.D.
    May 10, 1985.
    Gillum Ferguson, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Andrew B. Spiegel, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Wayne Wojtas (“Wojtas”) has moved to dismiss the indictment in this case, which charges Wojtas with three counts of willful failure to file income tax returns in violation of 26 U.S.C. § 7203. Wojtas’ premise is that the Sixteenth Amendment was not validly ratified, so that the present Internal Revenue Code (the “Code”) is a nullity and any indictment brought under the Code is a fortiori invalid. Wojtas seeks an evidentiary hearing to deal with his submissions in that respect. For the reasons stated in this memorandum opinion and order, no evidentiary hearing is required and the motion is denied.

In support of Wojtas’ motion, his counsel Andrew Spiegel, Esq. (“Spiegel”) submits not only the customary supporting memorandum but three large volumes. They comprise “The Law That Never Was — Vol. 1” (subtitled “The fraud of the 16th Amendment and personal Income Tax”), written by Bill Benson and M.J. “Red” Beckman and published this year by Constitutional Research Associates, and two loose-leaf binders containing the documents referred to in the Benson-Beckman volume. This Court has read all the introductory and concluding materials in the BensonBeckman volume, particularly including the February 15, 1913 memorandum (the “Opinion”) by the Solicitor of the Department of State (that Department’s general counsel, with responsibility for furnishing legal opinions to the Secretary of State) — a document characterized by Messrs. Benson and Beckman as the “Golden Key” that “unlocks a Pandora’s box of criminal fraud perpetrated by public servants, who betrayed the trust of their masters.” In addition this Court has sampled, but has not read all of, the materials dealing with the actions taken within the various states in the ratification process.

Spiegel argues for Wojtas that Secretary of State Philander Knox committed fraud — a violation of the criminal statutes of the United States — in certifying the adoption of the Sixteenth Amendment. That, counsel says, distinguishes the authorities on which the United States seeks to rely in opposing his motion.

But Wojtas’ counsel is no different from most persons who essay revisionist history: He prefers to ignore what he cannot explain away. Article V of the Constitution reads in relevant part:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution ... which ... shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States____

And the few cases that have been asked to deal with issues comparable to the one now tendered to this Court have uniformly held questions as to compliance with Article V’s requirements are within the sole province of Congress and not the courts — in the language that has come to characterize such issues, they are “political” (that is, nonjusticiable) questions.

Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922) dealt with several attacks on the Nineteenth Amendment. For current purposes the relevant contention was the claimed invalidity of two states’ ratifications “because adopted in violation of the rules of legislative procedure prevailing in the respective states” {id. at 137, 42 S.Ct. at 218). Speaking for a unanimous Supreme Court, Justice Brandéis first referred to the fact two other states had since ratified the Amendment but then went on to say {id.):

But a broader answer should be given to the contention. The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed amendment was ratified by the Legislatures of 36 states, and that it “has become valid to all intents and purposes as a part of the Constitution of the United States.” As the Legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so, was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts. The rule declared in Field v. Clark, 143 U.S. 649, 669-673, 12 Sup.Ct. 495, 36 L.Ed. 294 [(1892)], is applicable here. See, also Harwood v. Wentworth, 162 U.S. 547, 562, 16 Sup.Ct. 890, 40 L.Ed. 1069 [(1896)].

Field too had rejected the idea of going behind an official attestation, this time in the context of congressional legislation. As Field, 143 U.S. at 672, 12 S.Ct. at 497 said in a part of the opinion cited approvingly in Leser:

The signing by the Speaker of the House of Representatives, and by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate, and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed Congress, all bills authenticated in the manner stated: leaving the courts to determine, when the question properly arises,, whether the act, so authenticated, is in conformity with the Constitution.

Wojtas’ counsel simply refuses to recognize the impact of Field (let alone Leser) on his arguments. One of his contentions is that the “Golden Key” Solicitor’s opinion improperly relied on the presumptive regularity of certification — on the idea that because a state legislature can only approve or disapprove a proposed constitutional amendment, it must necessarily be presumed “in the absence of an express stipulation to the contrary, that a legislature did not intend to do something that it had not the power to do, but rather that it intended to do something that it had the power to do, namely, where its action has been affirmative, to ratify the amendment proposed by Congress” (Opinion at 15, BensonBeckman at 19). That was the predicate for the conclusion of the Solicitor, obviously relied on by Secretary Knox in his own certification of the Sixteenth Amendment, that changes of wording or capitalization in “merely reciting the proposed amendment” did not impair the states’ ratification. But if that line of analysis is a kind of bootstrap-lifting, as Wojtas’ counsel would have it, it mirrors precisely the kind of reasoning the Supreme Court itself has used as the ground for the courts’ non-inquiry into matters committed by Article V of the Constitution to another branch of government.

Though the United States has cited other more hoary authority on the “political question” issue, only one other Supreme Court decision need be mentioned. Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) fell one vote short of a determination that everything in Article V is for Congress alone (and not the courts) to decide. As the concurring opinion by Justice Black (for himself and Justices Roberts, Frankfurter and Douglas) said {id. at 459, 59 S.Ct. at 984):

No such division between the political and judicial branches of the government is made by Article V which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress. The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point.

Even though the majority opinion did not go that final step, Justice Black’s concurring opinion accurately characterized the Court’s opinion this way in the course of explaining why the four-judge concurrence believed the Court had not gone far enough (id., emphasis added):

If Congressional determination that an amendment has been completed and become a part of the Constitution is final and removed from examination by the courts, as the Court’s present opinion recognizes, surely the steps leading to that condition must be subject to the scrutiny, control and appraisal of none save the Congress, the body having exclusive power to make that final determination.

That is indeed an accurate reading of the Court’s opinion and decision in Coleman. Although the Court did indicate some possible room for minimal judicial scrutiny of one narrow Article V question (see id. at 446-47, 59 S.Ct. at 978-79, reflecting an equal division on whether that question “presents a justiciable controversy, or a question which is political in its nature and hence not justiciable”), that division clearly did not extend to the kind of attack dealt with thereafter by the Court (id. at 447-56, 59 S.Ct. at 979-83) — an attack comparable to the one launched by Wojtas here. Though the Court did not announce as general a principle as the concurring Justices would have preferred, the Court’s statements (id. at 450-51, 59 S.Ct. at 980-81) as to the “political question” nature of the issues it dealt with have equal force for the current question. Here the question is indeed whether (in the language of the Coleman concurrence) “an amendment has been completed and become a part of the Constitution,” and as to that the “Congressional determination ... is final and removed from examination by the courts.”

Despite Wojtas’ counsel’s efforts to distinguish away controlling Supreme Court authority, the principles announced in Les-er, Field and Coleman are dispositive. Secretary Knox’s certification and Congress’ determination as to the adoption of the Sixteenth Amendment are not judicially reviewable. Because the kind of evidence offered by Wojtas relates to a nonjusticiable issue under those authorities, no evidentiary hearing is required. Wojtas’ motion to dismiss is denied.

Appendix

One kind of extraordinary irony is posed by the motion dealt with in the body of this opinion. Wojtas’ counsel Spiegel, apparently imbued with the same fervor that marks his clients’ beliefs, makes a number of references to asserted misrepresentations and false representations by government counsel (in that respect Spiegel would do well to read ABA Code of Professional Responsibility EC 7-37). Yet he fails to recognize the lack of candor in one of his own fundamental contentions, on which it is worth spending a moment.

As the opinion reflects, the linchpin of Spiegel’s motion is its argument that Secretary Knox committed fraud in certifying the adoption of the Sixteenth Amendment. In turn that depends on the proposition that the Solicitor to the State Department, who was asked for an opinion (the “Golden Key”), gave one — but that Secretary Knox could not reasonably have relied on that opinion. Spiegel’s R.Mem. 9 captions its argument in that respect:

C. Secretary Knox And His Staff Violated A Known Legal Duty By Their Fraudulent Certification

Spiegel then charges (id. at 11):

D. Secretary Knox Violated The Criminal Laws Of The United States,

In support of that charge he urges {id. at 12, emphasis added):

Based upon the records Wojtas has obtained, Secretary Knox should never have issued his fraudulent certification. He knew or should have known that not one single state properly ratified the proposed amendment. Yet he did so in violation of the criminal laws of the United States.

“Should have known” is of course a statement of an objective test of fraud — of the idea a person’s knowledge, made relevant for criminal responsibility by the government’s need to prove willfulness, is to be measured by the reasonableness of the person’s belief, not simply whether such belief is honestly held. But when the government seeks to urge the same objective standard against Spiegel’s own clients in these very tax fraud cases, Spiegel resists with all the force at his command.

As it happens, this Court believes an objective standard of “reasonable belief” is incorrect — that teachings of the Supreme Court and a proper reading of the mens rea concept are accurately reflected by the First Circuit’s opinion in United States v. Aitken, 755 F.2d 188 (1st Cir.1985) and not by the opinion of our Court of Appeals in United States v. Moore, 627 F.2d 830, 833 (7th Cir.1980), cert. denied, 450 U.S. 916 [101 S.Ct. 1360, 67 L.Ed.2d 342] (1981) (and see United States v. Thibodeaux, 758 F.2d 199 [201 n. 2] (7th Cir.1985)). But the point here is not whether counsel is right in contending that the proper test for his clients’ criminal intent is a subjective one, but rather whether counsel is forthright in simultaneously urging a sharply different standard for “criminality” of the longdeceased former Secretary of State.

This is not a case where “foolish consistency is the hobgoblin of small minds.” Counsel’s responsibilities to the adversary system deserve better.

      . This marks the latest line of legal attack launched by "tax protesters” (as they are often described by others) or "tax patriots” (as they view themselves).

      . Wojtas’ motion is obviously one prepared for another case, with Wojtas’ name inserted in place of the original defendant’s at the appropriate places in the motion — thus demonstrating the utility of white-out compounds. Spiegel regularly represents persons attacking the Sixteenth Amendment and the Code on various grounds and gets a special mention in the Introduction to the Benson-Beckman book referred to in the text (pages xv-xvii).

      . As the substantive discussion in this opinion will reflect, no detailed review of those materials is either necessary or appropriate.

      . See Appendix.

      . Federal Criminal Jury Instructions of the Seventh Circuit 6.03, prepared by the Committee on Federal Criminal Jury Instructions of the Seventh Circuit, deals with the circumstances under which an instruction defining "willfully" should or should not be given. Accurately drawing on United States v. Pomponio, 429 U.S. 10, 12 [97 S.Ct. 22, 23, 50 L.Ed.2d 12] (1976) and the earlier definition in United States v. Bishop, 412 U.S. 346, 360 [93 S.Ct. 2008, 2017, 36 L.Ed.2d 941] (1973), the Committee said "willful" should be defined in tax prosecutions this way (note the direct parallel to Spiegel’s caption C quoted in this Appendix):
      An act is done "willfully" if done voluntarily and intentionally with the purpose of avoiding a known legal duty.
      What is "known” necessarily depends on a person's state of mind, and it is here that the debate as to objective v. subjective states of mind arises. Indeed it is misleading to call that a . "debate,” for Aitken (cited in the text) discloses the contest is rather one between our Court of Appeals on one side and the rest of the legal world on the other. This entire subject is one this Court discussed at some length as a speaker at the recent (April 16, 1985) Federal Bar Association seminar in Chicago.

      . This Court has in the past had another tax protester-cum-patriot jury trial in whuch Spiegel represented the defendant. During the jury instruction conference Spiegel objected strenuously to the Assistant United States Attorney’s effort to inject a statement of “reasonable belief" into the jury instruction on “willfulness." This Court, which has always agreed with that position, had already announced its intention to strike that provision from the government’s tendered instruction, and it therefore adhered to that position in Spiegel’s (and his client’s) favor. • In like manner, in the present case Spiegel has tendered a photocopy of Aitken (cited in the text), obviously intending to invoke it on Wojtas’ behalf.