author: VIETOR, Chief Judge.

text:
    Robert GRAHAM and Rebecca Graham, Plaintiffs, v. CENTRAL COMMUNITY SCHOOL DISTRICT OF DECATUR COUNTY, Defendant.
    Civ. No. 85-335-B.
    United States District Court, S.D. Iowa, C.D.
    May 9, 1985.
    Mark W. Bennett, Staff Counsel, Iowa Civil Liberties Union, Des Moines, Iowa, for plaintiffs.

      Charles L. Elson, Elson & Fulton, Iowa, for defendant.
   MEMORANDUM OPINION, DECLARATORY JUDGMENT AND INJUNCTION

VIETOR, Chief Judge.

This is a civil rights action under 42 U.S.C. § 1983, challenging the constitutionality of including an invocation and benediction at high school graduation ceremonies conducted by the defendant. Plaintiffs seek a declaratory judgment that including an invocation and benediction at the ceremonies violates the Establishment Clause of the First Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, and they seek preliminary and permanent injunctive relief. Jurisdiction is predicated upon 28 U.S.C. § 1343(3).

Plaintiffs’ amended and substituted application for preliminary injunction came on for hearing on May 8, 1985. Pursuant to Fed.R.Civ.P. 65(a)(2), and with consent of the parties, the court ordered the trial of the action on the merits to be advanced and consolidated with the preliminary injunction application hearing. Evidence of the parties was then received.

Defendant’s answer has been filed, thorough briefs have been submitted, and the court is prepared to proceed to its final decision; therefore, the application for a preliminary injunction need not be, and is not, acted upon.

FINDINGS OF FACT

Plaintiff Robert Graham is a resident of Leon, Iowa, and is the father of plaintiff Rebecca Graham, who is a graduating senior at Central Decatur High School, the only public high school in the defendant school district. Plaintiffs plan to attend the graduation ceremony of Rebecca Graham’s high school class, which is scheduled for this coming Sunday, May 12, 1985, in the high school gymnasium.

Defendant Central Community School District of Decatur County is a duly constituted body politic as a school corporation, with powers and jurisdiction pursuant to Iowa Code § 274.1 (1985). The school district has a population of about 4,000 people, about 2,000 of whom live in Leon, the county seat. There are about 750 students enrolled in the district’s schools, 49 of whom are graduating seniors.

For at least the past twenty years, and probably for much longer, the defendant’s graduation ceremonies (sometimes hereinafter referred to as “commencement exercises”) have been opened with an invocation prayer by a Christian minister and closed by a Christian minister’s benediction. The minister is not paid for this service. Up until last year, the defendant also conducted a baccalaureate ceremony.

In early 1984 plaintiff Robert Graham appeared before the defendant’s board of directors at a hearing the board held on his objections to what- he viewed as religious content of the proposed 1984 graduation ceremonies. At a subsequent meeting of defendant’s board a decision was made to cease conducting the baccalaureate ceremony and to grant the Community Ministerial Alliance’s request that the Ministerial Alliance conduct a separate, voluntary baccalaureate service. The board also made a decision not to change the practice of having an invocation and benediction conducted by a minister at the commencement ceremonies, and the practice was followed at the 1984 commencement exercises. The commencement exercises scheduled for this coming Sunday also include an invocation and a benediction.

In 1984 the Iowa Civil Liberties Union wrote to the defendant’s board about the invocation and benediction at commencement exercises, and on March 5, 1985 the Iowa Civil Liberties Union demanded that defendant abandon that practice. Defendant rejected the demand.

Attendance at the graduation ceremony is and always has been voluntary. Attendance by a graduating senior is not required to receive a diploma.

The defendant’s board makes the decision whether to have an invocation and benediction. The board calls upon the Community Ministerial Alliance to provide a minister to conduct the invocation and benediction, and the president of the Community Ministerial Alliance selects the minister each year. The practice is to pass the assignment around among the ministers.

The minister who conducts the invocation and benediction has complete control of what he will say. Nobody tells him what the content of the invocation and benediction shall be; that is entirely up to the minister, who acts in accordance with his conscience. The content has always been a Christian prayer or communication.

The invocation is usually no more than two or three minutes long, and the benediction is usually less than a minute. The entire commencement exercise lasts from 60 to 90 minutes.

The minister selected to conduct the invocation and benediction this year is Reverend Richard Speight, Jr. He is an ordained United Methodist minister serving as pastor in the Loving Chapel United Methodist Church in Leon and as pastor of a country church, High Point United Methodist Church. Reverend Speight plans to say, just before the invocation, “Will those who wish to pray with me join me.” He does not plan to ask the people present to stand. He plans to make a similar statement just before the benediction if the benediction, like the invocation, is in prayer form, but he will not do so if he chooses a “charge or dismissal with blessing” form of benediction, which he does not view as a prayer. The latter form of benediction, however, is viewed by Reverend Speight as a religious communication, probably involving a reading of some scripture from the Holy Bible. Reverend Speight has not yet decided which form of benediction to use.

The defendant school district includes invocations and benedictions by Christian ministers in other public school functions, such as sports banquets (there are three a year) and the prom. Sometimes the minister calls upon the people present to stand during the invocation.

In 1977, in at least one classroom, the teacher conducted a Christian prayer before the students were permitted to leave for lunch. Plaintiff Robert Graham and his wife, Sharon Graham, complained about that and the practice stopped. Not long after that, the Grahams learned that Gideon Bibles were distributed to students in the defendant’s classrooms.

In 1984, at the conclusion of the board meeting at which the decision was made to have the Community Ministerial Alliance conduct the baccalaureate ceremony but to retain an invocation and a benediction as part of the commencement exercises, the president of the school board remarked in the presence of Mrs. Graham and all others present that she hoped that the Graham children could be exposed to Christianity in school.

Reverend Speight considers the purpose of the invocation and benediction that he plans to give at the commencement exercises this coming Sunday to be solely religious. To his understanding they will serve no other purpose. He believes that the participants in the invocation and benediction will be himself, those who accept his invitation to join him, and God. Reverend Speight believes that the invocation and benediction at the commencement exercises serve traditional values of a community founded on Judeo-Christian tradition in which the graduating seniors grew up, and that the practice is “in the tradition of the One who is my Lord and Savior, Jesus Christ.”

Three expert witnesses testified, all of whom were called by plaintiffs. One is a United Methodist clergyman, one is an ordained minister of the Christian Church (Disciples of Christ), who serves as a professor of religion at Drake University, and the other is an ordained Unitarian Universalist minister. All three of them opined that invocations and benedictions at commencement exercises serve a religious purpose, not a secular purpose, and all three opined that a public school offering an invocation and benediction at public events, such as commencement exercises, is advoeating religion. The Unitarian Universalist minister testified that he is not a Christian and is personally offended by the offering of Christian prayers at a public school function. He opined that any non-Christian, whether a member of another faith or a person without any faith, could be similarly offended.

Plaintiff Robert Graham testified that he is a Unitarian Universalist and that he is personally offended by the offering of Christian prayers at public school functions, including commencement exercises. He testified that it makes him feel separated and ostracized. He views the practice as promotion of religion by the school. Plaintiff Rebecca Graham feels the same as her father about the offering of Christian prayer at public school functions. Sharon Graham also finds the practice personally offensive.

The only two witnesses who testified for the defendant are Virginia Webb, a member of defendant’s board of directors, and Thomas Spear, the defendant’s new superintendent. Mrs. Webb has been a member of the board for 11 years, and served as vice president for several years, and served as president from 1982-1984. She tendered no opinion as to the purpose of the invocation and benediction at commencement exercises. She testified that so far as she knows the school has always done it. Superintendent Spear has attended many commencement exercises in many public schools during his career in education, and he testified that each one began with an invocation and ended with a benediction. He opined that the first purpose of having an invocation and benediction in the commencement exercises is “tradition.” He also testified that he believes that it lends to the ceremony a “serious note.” Superintendent Spear also testified that in his opinion the invocation and benediction also serve a religious purpose. He testified that he does many things in school requiring a “serious note” and that he does them without an invocation in advance. He testified that commencement exercises could be started off on a “serious note” by some means other than prayer, but that an invocational prayer is the only means with which he is familiar and that he has not specifically thought about any other means.

A petition has circulated in the defendant school district signed by about 700 persons expressing support for the inclusion of an invocation and benediction in commencement exercises. Mrs. Webb testified that she knew of nobody who is supportive of plaintiffs’ position, but Superintendent Spear testified that he has heard some people express agreement with plaintiffs.

CONCLUSIONS OF LAW

(Including Some Ultimate Fact Findings)

The First Amendment to the Constitution of the United States provides, inter alia: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This provision is framed as a limitation on the authority of the federal government, but it is applicable to the states through the Fourteenth Amendment. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (Free Exercise Clause).

Only the Establishment Clause is invoked by plaintiffs in this case.

Our forefathers who wrote and adopted the First Amendment shared “a widespread awareness among many Americans of the dangers of a union of Church and State.” Engel v. Vitale, 370 U.S. 421, 429, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962). They knew that a government-sponsored religion elicits “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Id. at 431, 82 S.Ct. at 1267. Chief Justice Burger, in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), expressed the establishment prohibition concept well:

Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of the government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice____

Id. at 625, 91 S.Ct. at 2117.

However, the Supreme Court has not held that the Establishment Clause requires “... total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Id. at 614, 91 S.Ct. at 2112.

In 1971, in the Lemon case, the Supreme Court announced the now familiar three-part test for determining whether a challenged governmental practice is permissible under the establishment clause of the First Amendment: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” Id. at 612-13, 91 S.Ct. at 2111 (citations omitted). If the governmental action under challenge “violates any of these three principles, it must be struck down under the Establishment Clause.” Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 193-94, 66 L.Ed.2d 199 (1980).

The Lemon three-part test was not applied in the recent legislature prayer case, Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). However, it was applied in the later nativity scene case, Lynch v. Donnelly, — U.S. -, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) and it has been applied by most courts in cases involving Establishment Clause challenges to school activities. The Marsh decision is a singular Establishment Clause decision that rests on the “unique history” of legislative prayer, and the holding of that case is clearly limited to the legislative setting. Any doubts about the limited application of Marsh and the continued viability of the Lemon three-part test were laid to rest by the Court’s post-Marsh application of the Lemon three-part test in Lynch. This court is abundantly satisfied that it must measure the facts of this case by the Lemon three-part test.

School prayer cases are not new. Among the Supreme Court decisions leading to the articulation of the three-part test in Lemon are School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) and Engel. In Schempp the Court held that no state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in public schools at the beginning of each school day, even if individual students could be excused from attending or participating. In Engel the Court held that state officials may not compose an official state prayer and require that it be recited in public schools at the beginning of each school day even if the prayer is denominationally neutral and pupils so desiring could remain silent or be excused while the prayer was recited.

Application of the Lemon three-part test in Stone resulted in the Supreme Court holding that a state statute that required the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom in the state, violated the First Amendment Establishment Clause because it did not serve a secular purpose.

Applying the first part of the Lemon three-part test to the thoroughly developed evidentiary facts in this case, the court finds as an ultimate fact, and concludes, that the invocation and benediction portions of defendant’s commencement exercises serve a Christian religious purpose, not a secular purpose. This finding and conclusion is supported not only by the great weight of the evidence in this case, but by the undeniable truth that prayer is inherently religious. As the United States Court of Appeals for the Fifth Circuit recently noted:

Prayer is perhaps the quintessential religious practice for many of the world’s faiths, and it plays a significant role in the devotional lives of most religious people____
... Prayer is an address of entreaty, supplication, praise, or thanksgiving directed to some sacred or divine spirit, being, or object. That it may contemplate some wholly secular objective cannot alter the inherently religious character of the exercise.

Karen B. v. Treen, 653 F.2d 897, 901 (5th Cir.1981), aff'd, 455 U.S. 913, 102 S.Ct. 1267, 71 L.Ed.2d 455 (1982).

Applying the second part of the Lemon three-part test to the evidentiary facts in this case, the court finds as an ultimate fact, and concludes, that the invocation and benediction portions of defendant’s commencement exercises have as their primary effect the advancement of the Christian religion. This finding and conclusion is supported by the great weight of the evidence in this case. As the United States Court of Appeals for the Fourth Circuit noted in barring a state from printing a “Motorist’s Prayer” on state maps:

By printing a prayer on the official map, the state is placing its power and support behind a particular form of theological belief, and state sponsorship of religious belief is one of the primary encroachments the [establishment] clause seeks to inhibit____
... A prayer, because it is religious, does advance religion, and the limited nature of the encroachment does not free the state from the limitations of the Establishment Claus.e____
... By placing its imprimatur on the particular kind of belief embodied in any prayer, the state necessarily offends the sensibilities not only of nonbelievers but of devout believers among the citizenry who regard prayer “as a necessarily private experience,” Abington School District v. Schempp, 374 U.S. at 283-85, 83 S.Ct. at 1603-1604 (Brennan, J., concurring).

Hall v. Bradshaw, 630 F.2d 1018, 1020-21 (4th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1480, 67 L.Ed.2d 613 (1981).

The third part of the Lemon three-part test, the question of excessive government entanglement with religion, need not be examined because it is not raised by plaintiffs and the court’s resolution of the other two parts of the test is dispositive of this case.

Defendant relies on the Lynch decision, Bogen v. Doty, 598 F.2d 1110 (8th Cir.1979), a Pennsylvania Supreme Court decision and some federal district court decisions.

Lynch is clearly distinguishable on its facts. Lynch did not involve any religious exercise like prayer at a public government function. It involved the inclusion of a nativity scene in a large Christmas-time display of figures and decorations associated with the Christmas holiday. The court applied the Lemon three-part test and found that all three parts of the test were satisfied.

Bogen involved a resolution of a county board calling for an opening invocation at its public meetings. It is a type of legislative prayer case. The court found that the purpose and effect of the invocation was to establish a solemn atmosphere and serious tone for the board meetings. Those findings rested on a very scanty stipulation of facts, and the case must be viewed in its slim factual context. The case does not stand for the broad proposition that any governmental public function or ceremony may constitutionally be opened with a religious invocation. In fact, the court warned of the “quagmire” the county was near. 598 F.2d at 1114.

In Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), the court held that invocations and benedictions at a public high school commencement did not violate the Establishment Clause. Similar results were reached in Grossberg v. Deusebio, 380 F.Supp. 285 (E.D.Va.1974) and Wood v. Mt. Lebanon Township School District, 342 F.Supp. 1293 (W.D.Pa.1972). In each of these cases, under the facts presented to the court, the court found that the primary purpose of the invocation and benediction was secular and that the effect was not to advance religion. An examination of these cases shows that the facts were not very thoroughly developed. In Grossberg, the judge noted that the “question presented is a close one” 380 F.Supp. at 290. In my opinion, the courts in the two Pennsylvania cases placed undue emphasis on the fact that attendance at the commencement exercises was voluntary. See Schempp; Engel.

In Doe v. Aldine Independent School District, 563 F.Supp. 883 (S.D.Tex.1982) the court held that recitation of a prayer at athletic contests, pep rallies and graduation ceremonies was not secular and tended to advance religion and therefore violated the Establishment Clause. Similar holdings in respect to graduation ceremonies have been reached by two state trial courts in unpublished opinions brought to the attention of this court and counsel for defendant by counsel for plaintiffs. They are Kay v. David Douglas School District No. 40, No. [ AXXXX-XXXXX ], Circuit Court for the State of Oregon for the County of Multnomah, judgment entered June 28, 1984, and Bennett v. Livermore Valley Unified School District, No. H-91312-6, Superior Court of the State of California in and for the County of Alameda, memorandum of decision, May 17, 1984.

The decision reached by this court in this case is, of course, predicated on the evidence developed at the hearing on May 8, 1985 and on an application of the Lemon three-part test to that evidence.

Defendant suggests that if this court grants plaintiffs injunctive relief, the rights of others to freely exercise their religion will be infringed. That is not so. The First Amendment right of the people to the free exercise of religion does not give them a right to have government provide them public prayer at government functions and ceremonies, even if the majority would like it. Their free exercise right is not infringed by enforcement of the Establishment Clause, just as enforcement of their rights under the Free Exercise Clause would not violate the Establishment Clause. The two clauses are not mutually antagonistic.

It may well be that the majority of graduating seniors and the majority of the population in the defendant school district would like to have an invocation and benediction as part of the commencement exercises. However, the enforcement of constitutional rights is not subject to the pleasure of the majority. It would be the antithesis of the concept of constitutional law to apply the protection of the Constitution, which is the fundamental law of our land, in any given situation only if the majority at the relevant time and place approved. The Constitution protects all of us, including those who are in the minority. Indeed, First Amendment rights (religion, speech, press, peaceable assembly and petitioning for redress of grievances) would be meaningless if they were not available to minorities, the unpopular, and those courageous enough to speak out against the prevailing views of the majority and those entrusted with governmental power.

DECLARATORY JUDGMENT AND INJUNCTION

It is the declaratory judgment of the court that the defendant’s inclusion of a religious invocation and a religious benediction as part of its graduating ceremonies violates the Establishment Clause of the First Amendment of the United States Constitution. It is the further judgment of the court that the defendant is hereby enjoined from including in its graduating ceremonies scheduled for Sunday, May 12, 1985, and subsequent graduating ceremonies, any religious invocation or religious benediction.


source: Caselaw Access Project

author: DILLIN, District Judge.

license: Public Domain

text:
    In re the SPECIAL, SEPTEMBER 1983, GRAND JURY. In the Matter of Lee J. KLEIN (Witness).
    No. Misc. 83-199.
    United States District Court, S.D. Indiana, Indianapolis Division.
    May 9, 1985.

      John Daniel Tinder, U.S. Atty., Veta M. Carney, Asst. U.S. Atty., Indianapolis, Ind., for the U.S.
    John H. Weston, Beverly Hills, Cal., for Lee J. Klein.
    Robert Eugene Smith, Encino, Cal., for Harry V. Mohney.
    James H. Voyles, Dennis E. Zahn, Indianapolis, Ind., for Burton H. Gorelick.
   MEMORANDUM

DILLIN, District Judge.

The witness, Lee J. Klein (hereafter Movant) has moved for a reconsideration of this Court’s Order of March 1, 1985. Although several issues were considered by this Court in the March 1, 1985 Order, the Movant seeks reconsideration of only three issues. The Movant seeks to quash Subpoena 83-199-VMC-01-60, alleging that compliance therewith would violate the attorney-client relationship as protected under the Sixth Amendment to the United States Constitution and would violate the attorney-client privilege. The Movant also asserts that the subpoena is overbroad and oppressive in violation of the Fourth Amendment to the United States Constitution, Rule 45(b), F.R.Civ.P., and Rule 17(c), F.R.Crim.P.

The Movant is an attorney who has represented and continues to represent Harry V. Mohney and Burton H. Gorelick in various matters including tax, estate planning, business or financial, criminal, and domestic matters. The Movant’s clients have been “targetted” by the Special September, 1983 grand jury relating to possible tax, arson, and RICO offenses. The Movant has been subpoenaed by this Special grand jury to testify and to produce “[a]ny and all documents relating to business and/or financial transactions involving, in any manner whatsoever, directly or indirectly, Harry V. Mohney and/or Burton H. Gorelick.”

A hearing was held on the Movant’s motion for reconsideration on March 12, 1985. The Movant’s clients, Mohney and Gorelick, were permitted to intervene in this matter and fully participate in the hearing. Also on that date, the United States Attorney presented certain additional evidence to the Court in camera relevant to Movant’s motion. The issues raised by the Movant will be considered separately.

1. The Attorney-Client Relationship

The Movant initially asserts that the attorney-client relationship is entitled to protection under the Sixth Amendment to the United States Constitution against interference by a grand jury investigation at least to the extent that the government must make a preliminary showing of relevance and need before compelling an attorney to appear before a grand jury in matters relating to his client. To support his argument, the Movant relies on the rationale of the Fourth Circuit Court of Appeals in In re Special Grand Jury No. 81-1 (Harvey), 676 F.2d 1005, vacated on rehearing when witness became a fugitive, 697 F.2d 112 (4th Cir. en banc 1982). The court in Harvey found that although the right to assistance of counsel under the Sixth Amendment does not attach at the grand jury stage, a grand jury witness has a substantial interest in continuing to receive assistance from counsel who was retained for the purpose of the grand jury investigation. Id. at 1010. The court noted that when a grand jury witness’s attorney is subpoenaed to appear before the grand jury, a conflict of interest may arise, a wedge may be driven between the attorney and client which may destroy the attorney-client relationship, and there may be a chilling effect on truthful communications from the client to his attorney. Id. at 1009. To protect the interest of the witness in preserving the attorney-client relationship the court determined that the government must make a preliminary showing of the proper purpose of the grand jury investigation, the relevance of the evidence sought to that purpose, and an important need for such evidence. Id. at 1012.

In determining that a preliminary showing of proper purpose, relevancy, and need was required, the Harvey court opined that imposing this requirement was within its supervisory powers over grand jury proceedings and found that this requirement would not substantially interfere with the effectiveness of the grand jury in investigating criminal activities. Id. at 1012. Other courts, however, have disagreed with this rationale. In re Grand Jury Proceeding (Schofield), 721 F.2d 1221, 1222 n. 1 (9th Cir.1983) (court rejected Harvey because requiring a preliminary showing of relevance or need would conflict with Ninth Circuit law narrowly construing the supervisory power of district courts over grand juries); In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir.1983) (court rejected Harvey because requiring a preliminary showing of relevance or need would improperly impose restrictions upon the grand jury’s broad investigative powers as recognized in the Eleventh Circuit).

Similarly, the Harvey rationale is inconsistent with the law in the Seventh Circuit. Under the law in this circuit the power of the district courts to supervise grand jury proceedings is narrowly construed, United States v. Udziela, 671 F.2d 995 (7th Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2964, 73 L.Ed.2d 1353 (1982), and the investigative powers of the grand jury are found to be necessarily broad to accommodate the grand jury’s “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972); Matter of Walsh, 623 F.2d 489, 492 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980); Matter of Special February 1975 Grand Jury, 565 F.2d 407 (7th Cir.1977); United States v. Alewelt, 532 F.2d 1165 (7th Cir.), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976).

The grand jury’s broad powers, however, are not without limitations. Grand jury subpoenas are subject to judicial scrutiny for reasonableness and are subject to the exertion of “a constitutional, common-law, or statutory privilege.” United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67, 77 (1973); see also Matter of Walsh, supra (privilege); United States v. Alewelt, supra (reasonableness).

The Seventh Circuit Court of Appeals had an opportunity to balance the interests of a grand jury witness whose attorney was subpoenaed to appear before the grand jury against the interests of the grand jury in investigating criminal activities in Matter of Walsh, supra. The court found that the grand jury is subject to judicial supervision and that grand jury subpoenas are subject to the exertion of a privilege, but that no preliminary showing of need was required. Id. at 493. The court held that there was no privilege against appearing before a grand jury pursuant to a subpoena and that the exertion of a privilege must be made on a document-by-document or question-by-question basis. Id.

Although the court in Walsh focused on the attorney-client privilege, the United States District Court for the Eastern District of Wisconsin considered the reasonableness of a subpoena directed to a grand jury witness’s attorney in In re Grand Jury Proceedings of June 16, 1981, 519 F.Supp. 791 (1981).

The subpoenaed attorney before Judge Gordon of the Eastern District of Wisconsin argued that enforcement of the grand jury subpoena would violate the attorney-client relationship and would constitute an abuse of the grand jury process. Id. at 792. The attorney relied on two Third Circuit cases, In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (1975), and In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (1973) (subsequently relied upon by the Fourth Circuit in Harvey), which required preliminary showings by affidavit of the relevance and propriety of grand jury subpoenas. Id. at 794.

Interpreting the law of the Seventh Circuit, Judge Gordon found that Schofield I and Schofield II were not controlling and that no preliminary showing by affidavit of the relevance of a grand jury subpoena was required. Id. Judge Gordon noted that the Seventh Circuit Court of Appeals had set forth the standard of reasonableness for grand jury subpoenas in United States v. Alewelt, supra, and that “[nothing in Alewelt requires the government to support its subpoena with an affidavit.” Id. (emphasis in original). The court stated in Alewelt at 1168:

The authority of a grand jury to inquire into violations of criminal law through the use of subpoenas duces tecum is necessarily broad ... and is generally limited only by the requirement that the evidence to be produced cover a reasonable period of time, is relevant to the investigation, and is identified with reasonable particularity.

Additionally, in two cases arising out of the Seventh Circuit, the United States Supreme Court held that no preliminary showing of the reasonableness of a grand jury subpoena is required. United States v. Dionisio, supra; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). The attempt of the Fourth Circuit Court of Appeals in Harvey, supra, to distinguish Dionisio and Mara by limiting the cases to their precise facts is not persuasive. See Harvey, 676 F.2d at 1011-12. The Supreme Court in Dionisio stated: “Any holding that would saddle a grand jury with minitrials and preliminary showings would assuredly impede its investigation and frustrate the public’s interest in the fair and expeditious administration of the criminal laws.” 410 U.S. at 17, 93 S.Ct. at 773, 35 L.Ed.2d at 81.

In conclusion, the government is under no obligation to make a preliminary showing of relevance or need when subpoenaing an attorney whose client is a witness before the grand jury in this circuit. This ruling does not leave the attorney-client relationship without protection from unreasonable interference by a grand jury. To the extent that the attorney-client relationship is entitled to protection from inquiry by a grand jury, the attorney-client privilege may be invoked as provided in Matter of Walsh, supra, or the subpoena may be challenged under the reasonableness standard set forth in Alewelt, supra.

2. The Attorney-Client Privilege

The Movant seeks to quash the subpoena on the basis that the act of compliance would violate the attorney-client privilege. The subpoena seeks documents relating to business and financial transactions in which Mohney and/or Gorelick were directly or indirectly involved. The Movant claims that his knowledge of his clients’ “indirect” involvement respecting any document would be based upon confidential communications with his clients. Thus, he argues, selecting and producing documents which indirectly involve his clients would reveal to the grand jury that such documents exist and would reveal confidential communications.

Such a broad based exertion of the attorney-client privilege is not permitted under the law of the Seventh Circuit. The attorney-client privilege is in derogation of the search for truth and is narrowly construed. Matter of Walsh, supra. It does not protect the attorney-client relationship as a whole but rather protects only confidential communications properly made within its scope. Id.

The Seventh Circuit follows the Wigmore formulation of the privilege which provides as follows:

(1) Where legal advice of any kind is sought (2) from a professional legal ad-visor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the advisor, (8) except the protection be waived.

Matter of Walsh, 623 F.2d at 492, quoting 8 Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961). The Movant has the burden of establishing the essential elements of the privilege with respect to each communication sought to be protected. United States v. Lawless, 709 F.2d 485 (7th Cir.1983); Matter of Walsh, supra. The attorney-client privilege “must be made and sustained on a question-by-question or document-by-document basis; a blanket claim of privilege is unacceptable.” United States v. Lawless, 709 F.2d at 487; see also Matter of Witnesses Before Sp. March 1980 Grand Jury, 729 F.2d 489 (7th Cir.1984); Matter of Walsh, supra. Additionally, there is no privilege to refuse to appear before the grand jury. Matter of Walsh, 623 F.2d at 493. Therefore, the Movant may not broadly assert that the privilege applies to all communications and refuse to appear before the grand jury. Nevertheless, if a dispute exists regarding whether certain communications are protected by the privilege, the Movant may submit the communication to the Court in camera for resolution of the issue. Matter of Witnesses Before Sp. March 1980 Grand Jury, 729 F.2d at 495.

In the present case, the Movant has blanketly asserted that compliance with the grand jury subpoena would require disclosure of privileged communications. The Movant, however, has made no in camera submissions which would enable this court to rule with specificity on the availability of the attorney-client privilege. Selecting and producing documents in compliance with the subpoena would reveal only that the Movant possesses documents relating to business or financial transactions in which the Movant’s clients were involved. The fact that the Movant was retained by his clients regarding certain business and financial transactions is already known and, in any event, documents prepared and advice rendered regarding business or financial matters is generally not privileged. See United States v. Lawless, supra; Matter of Walsh, supra. At this juncture, therefore, the Movant has failed to show that the act of compliance with the subpoena constitutes disclosure of privileged communications and the Movant may not avoid compliance with the subpoena under his blanket assertion of the attorney-client privilege.

3. The Fourth Amendment, Rule 45(b), Federal Rules of Civil Procedure, and Rule 17(c), Federal Rules of Criminal Procedure

The United States Supreme Court stated in United States v. Dionisio, supra, that “[t]he Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms ‘to be regarded as reasonable.’ ” 410 U.S. at 11, 93 S.Ct. at 770, 35 L.Ed.2d at 78, quoting Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 379, 50 L.Ed. 652, 666 (1906). As noted above the Seventh Circuit Court of Appeals, in United States v. Alewelt, supra, set forth a standard of reasonableness applicable to grand jury subpoenas duces tecum requiring “that the evidence to be produced cover a reasonable period of time, is relevant to the investigation, and is identified with reasonable particularity.” 532 F.2d at 1168. Additionally, the federal civil and criminal procedure rules authorize courts to quash or modify subpoenas duces tecum which are overbroad or oppressive. Rule 45(c), F.R.Civ.P.; Rule 17(c), F.R.Crim.P.

Although the subpoena at issue does not specify a time period, the government and the Movant have stipulated that the subpoena requires the production of documents accumulated within the ten year period immediately preceding the date of the subpoena. The Movant does not challenge the subpoena as covering an unreasonable period of time.

The Movant directs his challenge to the subpoena’s broad scope and to its lack of specificity in identifying the particular documents to be produced. The Movant asserts that the failure to identify specific businesses or transactions and the request for documents relating in any way to the two named individuals show that the government is on a “fishing expedition” and that the subpoena is overbroad, oppressive, and lacks the required particularity in describing the documents to be produced. Consistent with the broad investigatory powers of the grand jury which are necessary for the performance of its functions, Matter of Walsh, supra, a broad scale approach in specifying the documents to be produced by subpoena may be allowed. Matter of Berry, 521 F.2d 179 (10th Cir.), cert. denied, 423 U.S. 928, 96 S.Ct. 276, 46 L.Ed.2d 256, reh. denied, 423 U.S. 1039, 96 S.Ct. 577, 46 L.Ed.2d 414 (1975). The United States Attorney submitted evidence in camera to the Court which establishes the relevancy of the documents relating to all business and financial transactions in which the two named individuals were involved. Documents relating to such transactions are relevant to the grand jury’s investigation whether or not the involvement of the two individuals is direct and apparent from the face of the document. The evidence submitted in camera also shows that the purpose of the grand jury’s investigation is legitimate. In seeking the production of these documents, the government is not on a mere “fishing expedition” but rather is seeking documents which are relevant to the legitimate purpose of the grand jury investigation.

Additionally, the subpoena describes the documents to be produced with sufficient particularity that the Movant may readily identify those which are sought by the grand jury. Although the Movant asserts that the production of documents relating to transactions in which his clients were “indirectly” involved may require him to use his discretion in determining which documents to produce, he does not claim that he is unable to identify the documents in his possession which are to be produced pursuant to the subpoena. As noted above, specific challenges may be made in camera on a document-by-document basis. In re Grand Jury Proceedings of June 16, 1981, supra; see Matter of Walsh, supra. This Court is satisfied that the subpoena identifies the documents to be produced with reasonable particularity-

Lastly, the Movant has made no showing that production of the documents pursuant to the subpoena would be oppressive. Therefore, the subpoena complies with the relevancy and particularity requirements of the Fourth Amendment as set forth in United States v. Alewelt, supra, and is not overbroad or oppressive.

For the foregoing reasons, therefore, the Movant’s motion to reconsider this Court’s Order of March 1, 1985, will be denied. Additionally, the Movant’s motion for stay pending appeal will be denied. Accordingly, the Movant is ordered and directed to comply with the subpoena forthwith consistent with this Memorandum.


author: LITTLE, District Judge.

text:
    William Martin KINDLE, et al. v. CUDD PRESSURE CONTROL, INC., et al.
    Civ. A. No. 83-2122.
    United States District Court, W.D. Louisiana, Monroe Division.
    May 9, 1985.
    Miller, Dawson & Askew, James R. Dawson, Shreveport, La., for plaintiffs.
    Mayer, Smith & Roberts, Alex F. Smith, Jr. and Kim Hanson LaVigne, Shreveport, La., for defendants.
   OPINION

LITTLE, District Judge.

Plaintiffs, William Martin Kindle and Murline Kindle, are the surviving parents of William T. Kindle, who was killed in an industrial accident on 3 March 1983 in Jackson Parish, Louisiana. On 7 September 1983 they filed the above action in this Court under diversity jurisdiction. On 14 December 1984 the parties agreed to submit a pretrial stipulation as to the facts involved in this case and then submit the entire case for disposition on the record without trial. Briefing was concluded on 4 March 1985. Predicated upon the stipulated facts, the briefs and the record as a whole, the Court makes these findings of fact and conclusions of law.

FINDINGS OF FACT

William T. Kindle was bom on 11 March 1958 in McKinney, Collin County, Texas to William Martin Kindle and Murline Kindle. He was raised in and around McKinney, Texas.

William T. Kindle married Paulette McKenzie Kindle on 19 December 1980 in Canton, Wood County, Texas. At the time of their marriage, William T. Kindle was twenty-two years old and Paulette McKenzie Kindle was thirty-three years old. After the marriage, they established their residence at Van, Texas, living in a mobile home owned by Paulette McKenzie Kindle.

In October of 1982, William T. Kindle abandoned the matrimonial domicile. Although William T. Kindle obtained, executed and had Paulette McKenzie Kindle execute an in proper person divorce petition, it was never signed by a judge and, accordingly, William T. Kindle and Paulette McKenzie Kindle were never legally separated nor divorced.

At the time William T. Kindle separated from Paulette McKenzie Kindle, he was unemployed. On 8 November 1982 he became employed by Cudd Pressure Control, Inc., Ambassador Row, Longview, Texas 75603.

At the time of his employment with Cudd Pressure Control, Inc., William T. Kindle lived in the Haystack Apartments, Long-view, Texas. He, however, claimed as his permanent residence Route 1, Box 92 or P.O. Box 1021, Van, Texas and as his phone number (214) 963-5393. These are the home phone number and permanent residence address of William M. and Murline Kindle, his parents.

William T. Kindle’s first trip to Louisiana, as a part of his job with Cudd, was on 1 March 1983. He was a member of a snubbing crew working on Davis G # 1, Vernon Field, Jackson Parish, Louisiana. William T. Kindle and fellow employees were housed at the Holiday.Inn in Ruston, Louisiana, during the job.

William T. Kindle was killed at approximately 10:45 A.M. on 3 March 1983 at the above described well site when a nipple blew out releasing a lateral pressure column of gas which hit William T. Kindle with such force that he was thrown 162 feet across the well site location. He was killed instantly.

Paulette McKenzie Kindle and William T. Kindle were living separate and apart at the time of his death. At no time since William T. Kindle had abandoned Paulette Kindle did he provide her with any actual monetary or material support.

As a result of William T. Kindle’s death, his parents, William Martin and Murline Kindle, plaintiffs herein, and his surviving spouse, Paulette McKenzie Kindle, instituted proceedings before the Texas Industrial Accident Board to determine who was the proper beneficiary for the death benefits provided under Texas Worker’s Compensation Statutes. All interested parties appeared before the Board, represented by counsel. By Order of the Texas Industrial Accident Board dated 24 August 1983, Paulette McKenzie Kindle was determined to be the proper party beneficiary to receive the death benefits pursuant to the Texas Worker’s Compensation Act.

Thereafter, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, the worker’s compensation carrier for Cudd Pressure Control, Inc., appealed the decision of the Board to the 294th Judicial District, Van Zandt County, Texas, pursuant to article 8307, section 5 of the Vernon’s Annotated Texas Statutes. After a full appellate hearing during which all parties were present and represented by counsel, Richard Davis, presiding judge of the 294th Judicial District, Van Zandt County, Texas, signed a final judgment on 27 April 1984 declaring Paulette McKenzie Kindle the sole and exclusive beneficiary of William T. Kindle and entitled to all benefits provided by law.

CONCLUSIONS OF LAW

This Court has jurisdiction pursuant to 28 U.S.C. § 1332. Louisiana law applies. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Because the parties in this matter are residents of Texas, counsel for both sides have devoted a great amount of argument pertaining to conflicts between Louisiana and Texas law. We think counsels’ efforts are misplaced.

The jurisprudence is clear that where the accident occurs in Louisiana, the courts of this state may exercise subject matter jurisdiction even though the employment contract is confected outside of Louisiana and the plaintiffs and defendants are non-residents. Banks v. Carl Ott Poles and Piling, Inc., 440 So.2d 803, 804 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1244 (La.1984). It is also manifest that Louisiana courts uniformly apply Louisiana law to accidents occurring within the state notwithstanding that the contract of employment and the domicile of the employee and the employer are out of state. Banks, supra; W. Malone and H.A. Johnson III, 14 Louisiana Civil Law Treatise: Worker’s Compensation Law and Practice, § 404 at p. 314 (1980) (hereinafter cited as Malone and Johnson).

Under La.R.S. 23:1231, “if the (deceased) employee leaves no legal dependents, the sum of twenty thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.” Further, “(n)o compensation shall be payable ... to a surviving spouse unless he or she was living with the deceased spouse at the time of the injury or death, or was then actually dependent upon the deceased spouse for support”. La.R.S. 23:1255. Paulette Kindle meets neither of these requirements. Thus, there being no legal dependent of the deceased, plaintiffs are entitled to recover under La.R.S. 23:1231.

It is of little moment that the plaintiffs were denied recovery in Texas. “If Louisiana has sufficient interest in the affair to permit its courts to entertain jurisdiction over the subject matter, then it has sufficient interest to see that the tenets of its compensation act are carried out.” Malone and Johnson, § 409 at p. 333. A prior denial of compensation is no different from a prior award in this context and should not bar a second suit. Id. (and cases cited therein).

DECISION

Judgment is rendered in favor of the plaintiffs for $40,000 ($20,000 each), plus interest and costs. Plaintiffs shall submit' an appropriate judgment within twenty (20) days of the signed date of this opinion.


author: ORDER OWENS, Chief Judge.

text:
    Lester G. PARHAM, Jr., et al., Plaintiffs, v. Vincent J. HIX, et al., Defendants.
    Civ. A. No. 83-122-ATH.
    United States District Court, M.D. Georgia, Athens Division.
    May 9, 1985.
    James I. Roberts, Elberton, Ga., for plaintiffs.
    Barry Lane Fitzpatrick, Danielsville, Ga., for defendants.
   ORDER

OWENS, Chief Judge.

On October 23, 1984, this court gave defendants the opportunity to enact an ordinance establishing standards for issuing malt beverage and wine licenses. Defendants have declined to do so. Therefore, for the reasons fully explained in the court’s earlier order, defendants are hereby ENJOINED from failing to issue licenses to the plaintiffs.

Since this court’s earlier order was entered, the Eleventh Circuit rendered its memorandum decision in Scoggins v. Moore, 747 F.2d 1466 (11th Cir.1984), aff'g 579 F.Supp. 1820 (N.D.Ga.1984). The Scoggins decision supports this court’s ruling. In the district court opinion, Judge Murphy wrote:

[T]he issue raised by the plaintiffs’ equal protection claim becomes the following: whether the personal knowledge of the defendant of illegal malt-beverage sales at retail establishments in the county in which he is vested with the authority to grant or deny malt-beverage licenses, combined with the commissioner’s denial of malt-beverage licenses to all formal applicants for such licenses, violates a formal applicant’s right to equal protection. The Court holds that the applicant’s equal protection rights are not violated by this practice because of a combination of two considerations. First, the defendant has no authority to close down malt-beverage establishments which operate illegally in Bartow County. This authority is vested solely in the Sheriff of Bartow County, Thurman____ Second, the plaintiffs have not demonstrated anything more than Moore’s [the county commissioner’s] knowledge of illegal malt-beverage sales in Bartow County. They have not, for example, shown, circumstantially or otherwise, that Moore took any affirmative steps to deter Thurman from closing establishments which illegally dispense malt-beverages.

Scoggins, 579 F.Supp. at 1324. The two considerations in Scoggins which caused the court to decide that applicant’s equal protection rights were not violated weigh in the opposite direction in the present case.

First, in the present case the Sheriff of Madison County is a party defendant. Of course, the sheriff — not the commissioners — is the law enforcement officer of the county. Thus, all necessary parties are before the court and the plaintiffs can obtain complete relief.

Second, the plaintiffs here have proven that the county commissioners and the sheriff knew of illegal beer sales and that they conspired to ignore the sales. It is beyond doubt that the defendants knew the VFW Club sold beer. The defendants emphasize that they had no personal, firsthand knowledge of beer sales. Trial transcript at 75-76 (testimony of Commissioner Hart) and 84 (testimony of Commissioner Carey). However, just because no commissioner actually saw someone purchase a can of beer at the VFW Club does not mean that they did not have knowledge of the sale of beer. The VFW Club, located only one-half mile from the county courthouse, has been selling beer since 1948. Trial transcript at 16, 28-29, 32-33, 34, and 60. The Club sells approximately fifteen cases of beer a week. Trial transcript at 62. One commissioner even admitted at trial that he had heard that the VFW Club sold beer. Trial transcript at 75-77. It is incredible that the other two commissioners had not similarly heard of the beer sales.

At a minimum, the commissioners received notice of the sale of beer at the VFW Club upon service of the complaint in this case. See Complaint at paragraph 6. The commissioners were served on November 19, 1983, about one year before the hearing. The sheriff also had actual knowledge of this lawsuit about that same time. Trial transcript at 77. Nevertheless, the VFW Club has been able to continue to sell beer throughout the pendency of this lawsuit. Trial transcript at 7, 23, and 43-44. Neither the commissioners nor the sheriff has taken any steps to stop the Club from selling beer; indeed, no one has even investigated the allegation in the lawsuit that the Club in fact sells beer. Instead, the commissioners and the sheriff have chosen to deliberately ignore the Club’s actions. The defendants cannot rely upon their lack of personal, first-hand knowledge of beer sales to insulate them from liability.

Unlike Scoggins, a conspiracy exists in the present case. The conspiracy is to ignore the sale of beer at the VFW Club. The circumstantial evidence of such a conspiracy is overwhelming. In particular, the open and notorious way in which the Club sold beer is very probative evidence.

It would be a great miscarriage of justice to allow the defendants to refuse to grant a beer and wine license to the plaintiffs while at the same time permitting other establishments to sell beer. The court’s decision enjoining defendants from failing to issue licenses to the plaintiffs is both legally and ethically correct.

As stated earlier, defendants are ENJOINED from failing to issue licenses to the plaintiffs. The licenses shall be granted in accordance with O.C.G.A. § 3-3-2. Assuming the plaintiffs satisfy all licensing requirements established by state law, the defendants must issue the licenses within ten days. The defendants are directed to notify the court when they have done so.

If either plaintiff does not meet the standards established by the State of Georgia for receiving a malt beverage and wine license, the defendants may decline to grant that plaintiff a license. In that event, the defendants must notify the court within ten days that the plaintiff does not meet the state-law standards. The defendants must further notify the court of the standard which is not satisfied and the reason why the standard is not satisfied. The court will then review the defendants’ actions to insure their good-faith compliance with this order. The clerk is directed to enter final judgment in this case.

       The Court notes that the plaintiff has not alleged an actionable conspiracy between Moore and Thurman under either section 1983 or 1985(3). Had the plaintiffs done so, and had they supported such an allegation with competent proof, they may have prevailed on their motion for summary judgment____

      . A hearing on the merits of the case was held on October 18, 1984.


author: EDWARD R. BECKER, Circuit Judge.

text:
    LOCAL NO. 1 (ACA), BROADCAST EMPLOYEES OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, William Bender, Morton Borrow, Walter Jost, and Anthony Evasew, Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Frank E. Fitzsimmons, General President, Edward Nangle, Vice President, Highway Truck Drivers and Helpers Local 107, Louis J. Bottone, President, Local 107, and John E. Smalley, Defendants.
    Civ. A. No. 75-2684.
    United States District Court, E.D. Pennsylvania.
    May 10, 1985.

      Harry Lore, Philadelphia, Pa., for plaintiffs.
    William J. Einhorn, Sagot & Jennings, Philadelphia, Pa., Leslie J. Ruben, Washington, D.C., for defendants.
   MEMORANDUM OPINION

EDWARD R. BECKER, Circuit Judge.

This opinion addresses an application by the defendant International Brotherhood of Teamsters (“IBT”) for an allowance of counsel fees and expenses in connection with the investigation and prosecution of its motion and amended motion to hold William Bender, plaintiff in the underlying action, in contempt of our November 8, 1978, order effectuating the IBT-ordered merger of Teamsters Local 1, a plaintiff in the case, with defendant Teamsters Local 107.

The relevant background of the case, which arises out of an unsuccessful suit by Local 1 and several of its officers, including Bender, to enjoin an IBT order that Local 1 merge with Local 107, is described in previous opinions and will not be repeated here. See Local 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 419 F.Supp. 263 (E.D.Pa.1976) (denying preliminary injunction against merger); Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 461 F.Supp. 961 (E.D.Pa.1978) (upholding merger and awarding Bender compensation for services to Local 1 before the merger), aff'd in part and vacated in part, 614 F.2d 846 (3d Cir.1980); Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., 543 F.Supp. 1321 (E.D.Pa.1982) (opinion filed on remand) (finding that diversity jurisdiction was not present in the action so as to preserve Bender’s favorable judgment on the salary claim but that diversity jurisdiction was present in Civil Action No. 80-0534 filed to re-assert the salary claim); Local No. 1 (ACA), et al. v. International Brotherhood of Teamsters, et al., No. 75-2684 (E.D.Pa., filed Oct. 5, 1982) (Memorandum Opinion), (granting in part and denying in part motion of IBT, joined in by Local 107, to hold Bender in contempt for failure to comply with November 8, 1978, merger order), aff'd by judgment order, 716 F.2d 891 (1983).

The IBT has sought counsel fees in the amount of $31,197.85, including expenses. For the reasons that follow, we award fees in the sum of $3,548.88, plus expenses of $297.44.

I.

The present application stems from events leading to our October 5, 1982, opinion and order addressing IBT’s motion to have Bender declared in contempt. Meaningful discussion of the fee application must be preceded by a capsule description of the grounds of that opinion, the accompanying order, and the November 8, 1978, merger order, which provides the overarching background.

The merger order provided in pertinent part that:

4. Local 1 is ordered to turn over all books, documents, property and funds presently under its control to the General President or General Secretary-Treasurer of the International Brotherhood of Teamsters or to the officers of defendant Local 107.

In December 1980, IBT moved for contempt, the merger allegedly not having been consummated because Bender had refused to deliver to IBT certain documents allegedly in his custody and had failed to inform Local 107 of the existence of a bank account with the Bowery Savings Bank of New York which purportedly contained Local 1 funds. When the documents at issue were delivered by Bender to Local 107 after the contempt motion was filed, the IBT amended its motion to seek contempt for Bender’s delay in complying with our order. Local 107 joined in the amended motion which asserted as an additional ground for contempt that Bender had disbursed $2,968.62 in Local 1 funds after our November 1978 order and before the Court of Appeals decision. Bender countered that he was not in contempt because his conduct had been in good faith.

We resolved the motion in our October 5, 1982, opinion as follows:

1. We held that the bank account dispute, which had been resolved as the result of a telephone call during the course of a hearing on the matter, was moot.
2. We found that Bender’s delay in turning over Local 1 records was a product of honest disagreements among the parties as to the location and custody of the documents and held that his conduct in this regard was not contemptuous.
3. We held that, in view of the clear terms of our November 1978 order, Bender had no right to dissipate funds, notwithstanding his intention to benefit the members of Local 1 through these expenditures. We therefore granted the defendants’ motion on this ground alone and entered an order for the repayment of the $2,968.62, which was disbursed in contravention of the merger order.

Bender ultimately purged himself of the contempt by paying $2,968.62 to Local 107’s counsel.

The application of the IBT for counsel fees, originally filed on March 3, 1982, sought the sum of $34,162.85 for services performed from May 1980 to February 1982. The application was amended on September 24, 1982, reducing the amount sought to $31,197.85.

II.

It is settled in the Third Circuit that “in a contempt proceeding, the court may, in its discretion, award expenses, costs and fees____ These items are restricted to reasonable amounts incurred in prosecuting the petition.” Lichtenstein v. Lichtenstein, 425 F.2d 1111, 1113-14 (3d Cir.1970). There is a split among the circuits, however, over whether there must be a willful contempt of a court order before attorneys fees may be awarded. The Third Circuit has not yet decided the question. See International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 749 v. Western Pennsylvania Motor Carriers Assoc., 660 F.2d 76, 84 n. 13 (3d Cir.1981). However, we need not resolve the question because we find, in light of the clear mandate of our November 8, 1978, order that “Local 1 is ordered to turn over all books, documents, property and funds presently under its control” (emphasis added), that Bender willfully violated the order when he disbursed $2,968.62 in Local 1 funds, on Local 1 checks drawn on Local l’s account after the order’s entry in 1978. In light of this willful violation, we are, under relevant authority, justified in assessing attorneys fees against Bender and to IBT. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967) (“in a civil contempt action occasioned by willful disobedience of a court order an award of attorney’s fees may be authorized”). The award of fees, of course, is limited to a reasonable amount. Lichtenstein v. Lichtenstein, 425 F.2d 1111 (3d Cir.1970).

Of particular relevance to the fashioning of a reasonable fee award in this case is the decision of the Third Circuit that, when awarding the costs of a contempt proceeding against the contemnor, the “district court must decide what costs are chargeable to the only conduct which [is] deem[ed] to be the basis for holding [a party] in civil contempt.” Quinter v. Volkswagon of America, 676 F.2d 969, 975 (3d Cir.1982) (emphasis added). Cf. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1942, 76 L.Ed.2d 40 (1983) (in awarding a fee pursuant to 42 U.S.C. § 1988, the district court should focus on “what is ‘reasonable’ in light of the level of success.”). We believe that the reasoning of Quinter applies as well to the award of attorneys fees following a contempt proceeding. We therefore will award attorneys fees for the prosecution of a contempt proceeding only to the extent that the prosecuting party succeeded in holding a party in contempt.

In the instant case, IBT’s affidavit in support of the application for attorneys fees set out three categories of work performed during the proceeding. In category C, IBT listed hours during which counsel pursued work for which no compensation was sought. We therefore will not award any fees for column C work and shall make no further reference to the figures.

Whether counsel are eligible to recover fees for category B work is more problematic. Category B, in IBT’s designation, contains, inter alia, the hours expended on work related to the Bowery Bank account issues, and the hours expended in attempting to get Bender to turn over Local 1 records. We concluded, however, that Bender was not in contempt as a result of his alleged refusal to turn over the relevant documents to Local 1, but rather that the delay in turning over the documents was the result of an honest disagreement among the parties as to the documents’ location and custody. At the same time we also deemed moot the claims involving the pension fund account at the Bowery Savings Bank, because the issue of the distribution of those funds was resolved during a recess of the January 5, 1982, contempt hearing. Given these findings, we conclude that under the reasoning of Quinter IBT is not eligible to recover attorneys fees for the time itemized in column B.

Finally, IBT’s category A itemizes the hours IBT allegedly expended in its successful efforts to gain a court order to compel Bender to repay funds to Local 107. Because IBT succeeded in this discrete portion of its claims, IBT may recover a reasonable fee for the work identified in category A of its fee request.

III.

In fashioning a reasonable award of counsel fees, the Third Circuit has consistently applied the Lindy lodestar approach in a variety of contexts. See, e.g., In re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir.1984) (award of fees in common-fund context); Francois v. Francois, 599 F.2d 1286 (3d Cir.1979) (award of fees in action to rescind separation agreement), cert. denied, 444 U.S. 1021, 100 S.Ct. 679, 62 L.Ed.2d 653 (1980); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3d Cir.1978) (award of fees pursuant to the Sherman Act); Hughes v. Repko, 578 F.2d 483 (3d Cir.1978) (award of fees pursuant to 42 U.S.C. § 1988); Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir.1977) (award of fees pursuant to Title VII). Because the lodestar method of calculating attorneys fees is used in this wide range of cases and because we can think of no reason why the method should not also apply to the award of fees following a contempt proceeding, we will follow the method here.

In calculating the lodestar value, we consider only, as we have discussed, the column A figures. IBT seeks fees for four different attorneys — Barry William Levine, George Kaufmann, Leslie J. Ruben, and Judith Schaeffer — as well as for work done by law clerks and paralegals. Mr. Levine, a partner, seeks fees for 26.25 hours expended on the contempt petition. Mr. Kaufmann, who was a consultant to the law firm before joining it as a partner in January 1981, seeks fees for a total of 13.50 hours, with 11.75 hours billed as a partner. Ms. Ruben, who became a partner in October 1981, seeks fees for a total of 61.25 hours, with 35.50 hours billed as a partner. Ms. Schaefer, an associate, seeks fees for one hour. There are also claims for 78 hours for work done by law clerks and 19.75 hours for work done by paralegals. The firm seeks an hourly rate of $90 for the partners’ hours, $75 for the associates’ hours, $30 for the law clerks’ hours and $25 for the paralegals’ hours.

We find the hourly rates sought by the applicants, for all classifications, to be reasonable in the context of this case. However, we find the combined total of 199.75 hours sought by the applicant for the prosecution of the contempt citation to be excessive and duplicative.

We note that the sole issue on which Bender was found in contempt, the disbursement of $2,968.62 in Local 1 funds, was not included in the original motion for contempt, but was added on the amended motion for adjudication of a civil contempt, filed on October 1,1981. After a review of the time charges submitted by IBT’s counsel, we also note that the amended motion was not discussed until the September 1981 entry, under Mr. Levine’s name. Therefore, work done prior to September 1981 is not compensable, since it is not related to the issue on which IBT prevailed. As a consequence, we will disallow all column A hours claimed between May 1980 and September 1981, a total of 74 hours. We will allow all 6.25 hours claimed by IBT’s counsel for September 1981, the month of the drafting of the amended contempt motion.

We will disallow one-half of the time sought for October 1981, because we believe that one hour is an excessive amount of time to draft a simple letter requesting a hearing on a motion.

The hours claimed for December 1981 and January 1982 revolve around the hearing held on January 5, 1982. For December 1981, counsel claims that 5.25 hours were expended scheduling and preparing for the hearing. All but one hour was attributed by counsel to column A matters. We are skeptical about that distribution. First, we conclude that a conference among three partners is not necessary to schedule a hearing, a simple ministerial act. Second, the January 5,1982, hearing involved seven issues, four of which concerned the pension fund at the Bowery Savings Bank, an issue on which Bender was not found in contempt. Thus, instead of attributing approximately 80 percent of the time spent preparing and arguing the contempt motion at the hearing to the issue on which IBT prevailed, as IBT’s bookkeepers have done, we will attribute only 85 percent of the time so spent to the matter on which IBT prevailed. Thus we will allow compensation for only two hours in December 1981. We regard this as a generous allowance of time allocable to the single issue on which IBT prevailed, given the number of other issues and claims.

The January 1982 charges present a similar problem, with one significant addition. Both Mr. Levine and Ms. Ruben attended the hearing. The Third Circuit has already stated, see In Re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir.1984), that the district court has discretion to compensate only one attorney of a firm for such a hearing, if it finds that the presence of additional counsel was unnecessary. We find that only one attorney was necessary in this simple proceeding. We will thus disallow eight hours attributed to Mr. Levine for January 1982. We will also disallow, in their entirety, the 3.5 hours claimed by Mr. Kauffman as being unnecessary and duplicative. The remaining 45.25 hours attributable to attorneys will be multiplied by .35 to conform them to the distribution of matters in the hearing, resulting in a total of 18 compensable hours. The same shall be done to the 65 hours claimed for work done by law clerks, resulting in a total of 22.75 compensable hours.

The affidavit indicates that in February 1982 three partners spent a total of 5 hours conferring with each other and reviewing a supplemental memo. We will disallow 3 hours of that time as being unnecessary and duplicative for this simple matter.

The total times allowed for attorneys are as follows:

September, 1981 6.25 hours
October, 1981 .50
December, 1981 2.00
January, 1982 18.00
February, 1982 2.00
TOTAL 28.75

Of this total, 26.50 hours will be compensated at the partners’ rate of $90 an hour. The other 2.25 hours, attributed to Ms. Ruben for September 1981, will be compensated at the associates rate of $75 an hour. Thus, the total fees awarded for work done by attorneys will be $2,553.75. The 22.75 hours attributable to law clerks will be compensated at a rate of $30 an hour. We conclude therefore that a fee award of $3,236.25 will provide IBT with reasonable compensation for its successful efforts in gaining the contempt order. Expenses of $297.44 will also be awarded.

       Of the United States Court of Appeals for the Third Circuit, sitting by designation. At the time of the proceedings adjudicated herein, Judge Becker sat as a Judge of the United States District Court for the Eastern District of Pennsylvania, either by virtue of his commission or by designation.

      . The Court of Appeals upheld our judgment validating the merger order but set aside our salary award to Bender on the ground that we lacked pendent jurisdiction over the state law salary claim. In response to Bender's motion under 28 U.S.C. § 1653 for leave to amend his pleadings to allege diversity jurisdiction, the court remanded for consideration of Bender’s allegation that diversity of citizenship afforded an independent basis of jurisdiction.

      . In November 1984, Judge Norma L. Shapiro, to whom No. 80-0534 was assigned on remand, filed an opinion [598 F.Supp. 178] containing findings of fact and conclusions of law awarding Bender the sum of $24,963.64. That award represents a verdict of $40,801.37 for back salary less a set-off of $15,837.78 for unauthorized expenditures made by Bender on behalf of Local 1. Judge Shapiro’s judgment has been appealed, Bender v. Highway Truck Drivers & Helpers Local 107, Court of Appeals No. 84-1753 (3d Cir.1984).

      . AH the work in connection with the contempt proceeding has been performed by IBT's attorneys. Local 107's attorney has been associated as co-counsel and has appeared in court, but the only claim for attorneys fees is from IBT’s attorneys.

      . We also held that IBT’s contention that Bender continued to represent members of former Local 1 after entry of the November 8, 1978, order was moot.

      . There might be some confusion as to why IBT is petitioning for attorneys fees when Bender was held in contempt for the unauthorized expenditure of funds we had ordered him to turn over to Local 107, rather than to the IBT. Actually, our 1978 merger order directed Local 1 to turn over its books, documents, property and funds to either the IBT or Local 107. The motion for contempt was originally brought by IBT. At that time Bender challenged IBT’s standing to bring the contempt petition, but we decided that IBT had standing to prosecute the complaint, because the 1978 merger order, which IBT was seeking to have enforced, was entered on IBT’s counterclaim to enforce its order of merger. Memorandum Opinion September 11, 1982, at 6 n. 3. Having held that IBT had standing to prosecute the contempt petition, it follows that IBT had standing to petition for counsel fees incurred in that prosecution.

      . The Fifth Circuit, in Cook v. Ochsner Found. Hospital, 559 F.2d 270 (5th Cir.1977), has decided that a non-willful contempt can result in fees being assessed against the contemnor. The court reasoned that, because damages in civil contempt cases often have the purpose of making the party damaged by the contempt whole, the willfulness of the violator does not matter. The Second Circuit, on the other hand, has intimated that a willful contempt is a prerequisite to the awarding of attorneys fees. In Vuitton et Fils S.A. v. Carousal Handbags, 592 F.2d 126, 130 (2d Cir.1979), the court stated that "it is appropriate for the court also to award the reasonable costs of prosecuting the contempt, including attorneys fees, if the violation of the decree is found to have been willful.” See also Johnson v. United States, 578 F.Supp. 226, 228 (S.D.N.Y.1984).

      . The lodestar approach was initially articulated in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973) ("Lindy I"); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir.1976) (in banc) ("Lindy II").

      . We note that before joining Dickstein, Shapiro as a partner, Mr. Kaufmann had represented Local 107 in these drawn out proceedings.

      . All together, the application claimed that a total of 485.25 person hours had been expended on the contempt petition. Of this total, 42 hours were in column C, for which fees were not sought. Another 243.50 hours were for Column B activities, for which recovery cannot be had. See supra pp. 551-552. This leaves a total of 199.75 potentially compensable hours, which are dealt with in the text.

      . In its final submission, IBT has sought allowance of $2,250 for time allegedly spent in obtaining the sums ($2,988.62) which the Court ordered Bender to pay to Local 107 in the October 5, 1982, order. There was indeed a delay in obtaining the check. This delay, however, resulted from the inability of counsel, among whom feelings ran quite high, to agree to the place and manner of payment. IBT was certainly as culpable as Bender in causing this delay, and we therefore decline to award compensation for this aspect of the matter.

      . IBT requested $423.56 for expenses related to its work on matters for which it is eligible to recover fees. The expenses were for travel, meals, and procuring a transcript of the hearing. Given our conclusion that the presence of only one partner at the contempt hearing was necessary, we have decided to reduce the requested travel expenses by one-half (IBT requested reimbursement for the travel costs of two attorneys) and the requested meal expenses by two thirds (IBT requested reimbursement of meal costs for three attorneys). The transcript costs will be reimbursed in full.

      . This total represents 41.25 hours of work by attorneys, 13 hours of work by law clerks, and 19.75 hours of work by paralegals,