author: McMILLAN, District Judge.

text:
    THOMAS S., by his next friend, Joyce BROOKS, Plaintiff, v. Sarah MORROW, Secretary, North Carolina Department of Human Resources; Allen Childress, in his official capacity as guardian for the plaintiff; Benjamin Carpenter, Director, Gaston County Department of Social Services; James Melton, Director, Gaston-Lincoln Area Mental Health Program; Harley B. Gaston, Jr., David Beam, David Hollifield, James Forrester, Dean Carpenter, Robert Heavner, and Porter McAteer, in their official capacity as Gaston County Commissioners, Defendants.
    No. C-C-82-418-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Sept. 18, 1984.

      Edward G. Connette, Charlotte, N.C., Roger Manus, Carolina Legal Assistance for Mental Health, Raleigh, N.C., and Theodore O. Fillette, Legal Services of Southern Piedmont, Inc., Charlotte, N.C., for plaintiff.
    Wilson Hayman, Reginald L. Watkins, Asst. Atty. Gen., William F. O’Connell, Sp. Deputy Atty. Gen., Walter M. Smith, Associate Atty., North Carolina Dept, of Justice, Raleigh, N.C., Catherine C. Stevens, R.T. Wilder, Jr., Mullen, Holland & Cooper, Jeff Trepel, Gastonia, N.C., and Robert H. Gage, Cox & Gage, Morganton, N.C., for defendants.
   ORDER

McMILLAN, District Judge.

I.

Paul Caldwell, next friend of plaintiff Thomas S., filed this suit on July 7, 1982, seeking declaratory and injunctive relief for Thomas S. under federal and state law. Paul Caldwell later became employed by defendants, and Joyce Brooks now serves as next friend.

Thomas S., a twenty-year-old Gaston County resident, has been diagnosed as suffering from, inter alia, schizophrenia and borderline mental retardation, and is incapable of either living independently or managing his own affairs. Given up for adoption at birth, Tom spent his first eighteen years in approximately forty different foster homes and institutions while in the custody of the Gaston County Department of Social Services (DSS). DSS shuffled Tom through so many placements during his youth (see deposition of Dannette Rosenberg, pp. 10-15) because there were no appropriate community-based treatment facilities available in Gaston County during this period (defendant Morrow’s answer, 1117; defendant Carpenter’s answer, ¶ 13).

Soon after Tom’s eighteenth birthday, DSS succeeded in having Tom declared legally incompetent, and defendant Allen Childress, Regional Adult Mental Health Specialist of the Department of Human Resources (DHR), Division of Mental Health, Mental Retardation, and Substance Abuse Services, was thereafter appointed guardian under the authority of N.C.G.S. §§ 122-24.1 and 35-1.28. Because Childress considered Tom’s then-current placement inappropriate, Childress caused Tom to be admitted to the “R” (mental retardation) unit at Broughton Hospital on March 15, 1982.

Four months after Tom was institutionalized at Broughton, his next friend brought this suit against state and local officials seeking judicial declaration that Tom’s rights under the United States Constitution and under state law had been denied by defendants, and seeking prospective injunctive relief to remedy the alleged wrong. The complaint alleged that, under federal and state law, Tom is entitled to more appropriate treatment of his condition in a less restrictive, community-based setting. On May 26, 1983, plaintiff and two of the local defendants agreed to a special treatment plan funded by those defendants which provided appropriate community-based treatment for Tom until March 1, 1984. That agreement was incorporated into a judgment, and, because of that judgment, the court deferred ruling on all parties’ motions for summary judgment. The court designated the case as inactive until February 1, 1984. Since the consent judgment was filed, Tom has been shifted to at least three additional placements. He is now being housed in the Gaston County detoxification facility because there is no place else for him to go. Letter from plaintiff’s counsel, Edward G. Connette (filed August 29, 1984).

Meanwhile, the parties, and others, have filed a number of additional motions. All parties have renewed their motions for summary judgment. Other mentally impaired persons have moved that they be allowed to intervene, and have joined plaintiff in a motion to amend the complaint and to certify a class. The local defendants have moved that, in the event a statewide class is certified, all claims against the local defendants be severed from the class action case.

On August 15, 1984, the court heard argument on those motions.

II.

All pendent state law claims should be dismissed. Pennhurst State School & Hospital v. Halderman, — U.S.-, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), is dispositive of those claims. Pennhurst held that the Eleventh Amendment prohibits federal courts from adjudicating pendent claims against state officials based on those officials’ alleged violations of state law.

Also in Pennhurst, however, the Supreme Court reaffirmed the established principle that federal courts do have jurisdiction to grant relief against state officials based on those officials’ alleged violations of federal law. Id., at-, 104 S.Ct. at 911; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). “[I]n such eases this Court is vested with the constitutional duty to vindicate ‘the supreme authority of the United States’____” Pennhurst, — U.S. at-, fn. 17, 104 S.Ct. at 912, fn. 17.

III.

Plaintiff is entitled to summary judgment based on his constitutional claims against defendants.

A

Plaintiff claims that his liberty — a substantive right arising solely under the Fourteenth Amendment to the Constitution — has been denied by the defendants. The seminal case on this “substantive due process” claim is Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Youngberg discussed “the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution.” Id., at 314, 102 S.Ct. at 2457.

Although Youngberg discussed the constitutional rights of a severely retarded, institutionalized individual, the standards outlined in that case are appropriate to this case. The parties are in dispute about whether Tom is mentally retarded, but they agree that he suffers from mental impairments which prevent him from living independently and which necessitated the appointment of a guardian. Tom is not now institutionalized, but he was so placed at the time the suit was filed, and, as a ward of the state, Tom at any time may be required to return to Broughton, if his guardian so directs. Therefore, Tom is like the plaintiff in Youngberg insofar as the state has control over Tom’s liberty and care.

The holding in Youngberg dictates that defendants Morrow and Childress are responsible for ensuring that plaintiff retains the liberty to which he is entitled solely under the Fourteenth Amendment. Defendant Childress, regional specialist for DHR, was plaintiff’s guardian and caused plaintiff to be admitted to Broughton on March 15, 1982. Defendant Morrow is Secretary of DHR and is responsible for the administration of DHR as well as the supervision of county departments of social services.

Morrow and Childress, like the institution officials in Youngberg, are responsible for the legitimate restraints on plaintiff’s liberty resulting from plaintiff’s mental incompetency and wardship; also like the defendants in Youngberg, Morrow and Childress are charged with the responsibility that these legitimate restraints are no more restrictive than necessary.

Liberty interests protected by the Fourteenth Amendment include safety, liberty from bodily restraint, and “minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” Id. at 319, 102 S.Ct. at 2460.

The training to which plaintiff is entitled under the Fourteenth Amendment is that which is “reasonable” in light of the “balance [between] ‘the liberty of the individual’ and ‘the demands of an organized society.’ ” Id. at 320, 102 S.Ct. at 2460. “In determining what is ‘reasonable’ — in this and in any case presenting a claim for training by a State — we emphasize that courts must show deference to the judgment exercised by a qualified professional.” Id. at 322, 102 S.Ct. at 2461.

The decision [to treat a certain way], if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.

Id. at 323, 102 S.Ct. at 2462. This court, therefore, in determining the training or treatment to which plaintiff is entitled under the Fourteenth Amendment, must look for guidance to the professional judgment and decisions of those who examined and treated him.

Defendants recently have been filing affidavits asserting, at least in part, that plaintiff has a behavioral problem which makes it difficult to treat him. See, e.g., affidavit of James B. McKelvey, dated August 30, 1984; affidavit of Rudy Cannon, dated August 27, 1984. The court fails to see how that fact can excuse defendants from providing the treatment to which plaintiff is entitled. People with problems are rarely easy to .deal with. If plaintiff were “normal,” then he would not need the treatment the professionals say he needs. The solution to whatever behavioral problems plaintiff may have is not to place him inappropriately in a detoxification facility; it is to provide him with appropriate treatment.

The overwhelming weight of professional opinion concerning the appropriate treatment needs of Thomas S. appears to be consistent with the recommendations formulated by the R Unit treatment team as set forth in the psychological evaluation dated November 22, 1982, and signed by Staff Psychologist William R. Wellborn, III:

RECOMMENDATIONS
1. Placement in a group home with adults of average intelligence without severe emotional difficulties (stable environment with structure)
2. Counseling by both male and female therapists regarding conflicts in establishing relationships with both men and women
3. Needs exposure to many social situations outside of the institutional environment (e.g. shopping, dining out, short trips, etc.)
4. Attend an Outward Bound Course (21-day course) to help develop his ego, strength, and self-concept
5. Placement in an environment that will allow the perfect balance between supervision and freedom so that Tom will not feel rejected
6. Training in mathematics and money management
7. Training in a specific trade like auto mechanics so that Tom will more likely be able to support himself in the future

Defendant Morrow’s Memorandum in Support of Motion to Dismiss, or Alternatively, Motion for Judgment on the Pleadings or, Alternatively, Motion for Summary Judgment, Exhibit 7, page 9 (March 31, 1983). Details of the recommended appropriate treatment vary according to the professional making the assessment, but the basic, common elements appear to be:

1. A stable environment — i.e., a relatively permanent placement.
2. A non-institutional adult foster care situation which would allow Tom to function as a family member with some supervision but with relatively few restrictions.
3. Basic educational training and vocational training.
4. Therapy and counseling.

See, e.g., Affidavit of Rudy Cannon (filed August 30, 1984).

Defendants have filed a large number of affidavits which, defendants claim, show that the haphazard, inconsistent treatment provided for plaintiff was consistent with the recommendations of professionals. See, e.g., affidavits attached to defendant Morrow’s Memorandum in Support of Motion to Dismiss, or Alternatively, Motion for Judgment on the Pleadings or, Alternatively, Motion for Summary Judgment (filed March 31, 1983). However, scrutiny of those affidavits, coupled with an examination of the deposition excerpts and affidavits submitted by plaintiff, shows that most of the treatment provided for plaintiff was not consistent with that recommended by the professionals. See, e.g., affidavits of Paul Caldwell, Dr. Jacelyn Wedell-Monnig, Dr. Carolyn Schroeder and depositions of Allen Childress (pp. 11-12, 37-39, 93) and Benjamin Carpenter (p. 12) (filed May 6, 1983). To the extent that any professionally prescribed treatment differed from that set forth above, it differed because the professional’s stated judgment was modified to conform to the available treatment, rather than to the appropriate treatment, for plaintiff’s condition.

Lack of funding or of established alternatives is not a factor which may be considered in determining the scope of this constitutional right. Of course, that factor is critical in determining whether damages may be recovered by one who was denied his right to appropriate treatment.

In an action for damages against a professional in his individual capacity, however, the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability.

Youngberg, at 323, 102 S.Ct. at 2462. Just as certainly, however, consideration of budgetary constraints is not proper when defining this constitutional right. To the extent that a professional’s judgment of the appropriate treatment is shown to have been modified to fit what is available, that judgment likely has become “a substantial departure from accepted professional judgment, practice, or standards.” The Supreme Court in Young berg recognized that “normal professional standards” (or professional judgment) and “budgetary constraints” are separate concepts ("the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints Id., at 323, 102 S.Ct. at 2462 [emphasis added]).

Nor are budgetary constraints restrictive of a court’s equitable authority and power in fashioning prospective relief after determining that this constitutional right has been violated. See, e.g., Wyatt v. Stickney, 344 F.Supp. 387, 394 (M.D.Ala. 1972), affirmed in part, remanded in part and decision reversed in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Accord, Scott v. Plante, 691 F.2d 634, 637 (3d Cir.1982):

Obviously the problem of hindsight interference with decisions made by hard-pressed professional staff members of state mental institutions is a more serious one than that of assisting them in directing prospective injunctive relief against appropriate state officials. See Edelman v. Jordan, 415 U.S. 651, 667, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662 (1974).

For the foregoing reasons, the court concludes that defendants Morrow and Childress have denied and continue to deny plaintiff his rights under the Fourteenth Amendment. Plaintiff is entitled to treatment recommended by qualified professionals whose judgment is unsullied by consideration of the fact that the state does not now provide appropriate treatment or funding for appropriate treatment.

Plaintiff is. therefore entitled to prospective injunctive relief.

B

Plaintiff also claims his state-created liberty interests — i.e., those conferred on plaintiff by North Carolina law — were taken from him by defendants without due process of law, and, thus, in violation of his rights under the Fourteenth Amendment to the Constitution. In particular, plaintiff claims that the North Carolina General Statutes, §§ 35-1.6 et seq., (the North Carolina Guardianship Act); § 122-55.8, (the Continuity of Care Statute); § 143B-137; and § 168-1 create liberty interests which may not be deprived without due process of law. In support of this “procedural due process” claim, plaintiff cites Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); and Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). (State-created liberty interests, like federally, derived constitutional rights, trigger the procedural protections of the Fourteenth Amendment.)

Defendants assert that this claim is foreclosed by Pennhurst State School & Hospital v. Halderman, supra. Pennhurst, however, does not go so far. Pennhurst held only that federal courts may not exercise pendent jurisdiction to adjudicate claims of state law violations against state officials. A “procedural due process” claim is an entirely different sort of action. The role of state law in this constitutional claim is merely to define the liberty interest at stake. In order to prevail, plaintiff must show that his procedural rights under the Constitution were not provided when the state took away plaintiff’s state-created right to a particular form of liberty. Such a suit, then, is not an enforcement of state law, but an enforcement of federal constitutional law. As the Court said in Pennhurst, “[I]n such cases this Court is vested with the constitutional duty to vindicate 'the supreme authority of the United States’____” Pennhurst, — U.S. at -, fn. 17, 104 S.Ct. at 912, fn. 17.

Plaintiff argues that this cause of action entitles him to the same prospective relief afforded under his “substantive due process” claim, since the “professional judgment” of those who have treated plaintiff is that he should be placed in a less-restrictive, community setting with enriching treatment. Defendants deny that many of the statutes even apply to plaintiff. They also say that, even if the statutes apply, plaintiff is not entitled to relief.

Since the court already has determined that plaintiff is entitled to relief based on his rights derived solely from the Fourteenth Amendment, the court need not reach this second constitutional claim for relief asserted by plaintiff. The court recognizes that state and local defendants, rather than just defendants Morrow and Childress, would share responsibilities should plaintiff recover on his second constitutional claim. The court will not speculate, however, on who might be responsible when it is clear that Morrow and Childress are responsible on the basis of plaintiff’s first constitutional claim.

For the reasons set forth above, IT IS THEREFORE ORDERED that:

1. The pendent state law claims are DISMISSED without prejudice.

2. Summary judgment for plaintiff Thomas S. is ALLOWED to the extent set forth above.

3. Counsel for plaintiff and defendants Morrow and Childress shall confer and attempt to propose, within ten (10) days, a' judgment which includes a treatment program for Thomas S. based on “professional judgment” consistent with this order. Counsel should inform the court within that time frame whether they are able to reach an agreement.

4. The claim® against defendants Benjamin Carpenter, Melton, Gaston, Beam, Hollifield, Forrester, Dean Carpenter, Heavner, and McAteer are DISMISSED without prejudice.

5. The court defers judgment on the issues of

(a) intervention of other plaintiffs,

(b) amendment of plaintiff’s complaint, and

(c) certification of a class action.


source: Caselaw Access Project

author: FOREMAN, Chief Judge:

license: Public Domain

text:
    OLD BEN COAL COMPANY, Plaintiff, v. LOCAL UNION NO. 1487 OF the UNITED MINE WORKERS OF AMERICA, et al., Defendants.
    Civ. No. 83-4049.
    United States District Court, S.D. Illinois.
    Sept. 19, 1984.

      S. Richard Heymann, Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., John W. Leskera, Dunham, Boman & Leskera, Collinsville, 111., for plaintiff.
    James D. Lynch, Springfield, 111., for defendants.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court is plaintiff’s Motion for Summary Judgment on the issues of liability. Plaintiff sues Local Union Number 1487 (hereafter Local) of the United Mine Workers of America and certain individuals for damages allegedly incurred due to the breaches of the collective bargaining agreement. The breaches alleged are that the Local engaged in a strike or work stoppage over arbitrable disputes in violation of the collective bargaining agreement’s arbitration provision. Liability is sought to be imposed upon the Union under two theories: mass action and common law agency. Before reaching the issue of whether any material factual dispute exists, the Court will resolve the legal issue of whether the mass action theory is still viable after the Supreme Court’s decision in Carbon Fuel Company v. Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979).

The Courts that have faced the issue of whether the mass action theory survived Carbon Fuel have been anything but unanimous in their conclusions. According to the mass action theory, the union is liable for an unauthorized strike engaged in by a large number of its members; the rationale behind the theory is that “large groups of men do not act collectively without leadership and that a functioning union must be held responsible for the mass action of its members.” Eazor Exp. Incorporated v. International Brotherhood of Teamsters, 520 F.2d 951, 963 (3rd Cir.1975). In Carbon Fuel, the Court was faced with the issue of whether International and District Unions could be liable for unauthorized work stoppages or strikes if they failed to use all reasonable means available to prevent or terminate the stoppages or strikes. The liability of the local unions was not at issue. After examining the liability Congress imposed upon labor organizations under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1947), a unanimous Court concluded that the legal responsibility of the unions was limited by common law agency principles:

... Congress gave careful attention to the problem of strikes during the term of a collective-bargaining agreement, but stopped short of imposing liability upon a union for strikes not authorized, participated in, or ratified by it. Rather to effectuate § 301(a), the TaftHartley Act provided in § 301(b) that a union “shall be bound by the acts of its agents,” and in § 301(e) provided that the common law of agency shall govern “in determining whether any person is acting as an 'agent’ of another person.” In explaining § 301(e), Senator Taft stated, 93 Cong.Rec. 4022 (1947):
“If the wife of a man who is working at a plant receives a lot of telephone messages, very likely it cannot be proved that they came from the union. There is no case then. There must be legal proof of agency in the case of unions as in the case of corporations ...” (Emphasis supplied).

444 U.S. at 217, 100 S.Ct. at 414 (emphasis supplied).

The Court also rejected the argument that an obligation of the union to use all reasonable means to prevent or end an unauthorized strike should be implied from the collective bargaining agreement provision obligating the union to “maintain the integrity of this contract.” The Court stated that since an earlier version of the collective bargaining agreement containing a clause obligating the union to use their best efforts to prevent work stoppages was purposely deleted by the union, the parties agreed not to impose such a duty on the union. 444 U.S. at 220, 100 S.Ct. at 415. The Court also noted that after the deletion, but before the 1968 or 1971 agreements were enacted, the contracts were construed as not imposing liability on the unions for wildcat strikes; had not this been the parties’ understanding, the parties had ample opportunity to change the agreement. 444 U.S. at 222, 100 S.Ct. at 416. (The Court also noted the Seventh Circuit has adopted a similar reading of the contracts since 1971. 444 U.S. at 222 n. 10, 100 S.Ct. at 416 n. 10, citing Old Ben Coal Corporation v. Local Union No. 1487, 457 F.2d 162 (7th Cir.1972).) The Court stressed the strong Congressional policy in favor of unrestricted collective bargaining, and noted the union’s hesitation “to surrender its freedom to decide what measures to take or not to take in dealing with unauthorized strikes.” 444 U.S. at 219-220, 100 S.Ct. at 415. Thus, the Court implied that parties to the collective bargaining agreement could have bargained for greater union liability than that imposed by § 301.

Cases subsequent to Carbon Fuel which have held that the mass action theory is still viable have sought to limit the Court’s decision as inapplicable to local unions, since local liability was not in issue in the ease. See Consolidation Coal Company v. Local 1702, United Mine Workers, 709 F.2d 882, 884-885 (4th Cir.1983) cert. denied, - U.S. - — , 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); New York Time Company v. Newspaper & Mail Deliveries’ Union of New York and Vicinity, 517 F.Supp. 662, 666 (S.D.N.Y.1981); Keebler Company v. Bakery Workers Local 492-A, 104 LRRM 2625, 2628 (1980), or have applied or acknowledged the principles of mass action theory without discussing the implication of Carbon Fuel. See Alabama By-Products v. Local No. 1881, Etc., 690 F.2d 831, 833 (11th Cir.1982); North River Energy Corp. v. United Mine Workers of America, 664 F.2d 1184, 1193-94 (11th Cir. 1981); Dresser Industries v. United Steel Workers of America Local 4601, 110 LRRM 2661, 2664 (W.D.N.Y.1981). In the Court’s opinion, the better reasoned cases hold that the rationale of Carbo Fuel cannot be limited to International or District Unions.

In Consolidation Coal v. United Mine Workers of America, 725 F.2d 1258 (10th Cir.1984), the Court of Appeals examined Carbon Fuel’s reasoning and stated as follows:

Although the Court addressed only the cases involving the international and district unions, the applicability of the rule announced by the Court does not depend on the level of union hierarchy involved. In stating that ‘Congress limited the responsibility of unions for strike, in breach of contract cases when the union may be found responsible according to common law of agency,’ 444 U.S. at 216, 100 S.Ct. at 413 (emphasis added), the Court fashioned a rule of union liability without differentiating among local, district or international unions. And no such distinction is made in the statutory language or in the legislative history relied on by the Court.

725 F.2d at 1263. The Court agrees. The clear language relied on by Carbon Fuel in limiting the union’s liability to that imposed by common-law agency principles applies to “any labor organization.” 29 U.S.C. § 185(b). Additionally, the parties are free to negotiate as to whether additional union liability for unauthorized strikes will be imposed. 725 F.2d 1263 n. 11. Other Courts are in accord. See Hardline Electric, Inc. v. International Brotherhood of Electrical Workers, Local 1547, 680 F.2d 622 (9th Cir.1982) (where injunction against wildcat strike is sought, district court should consider whether union is responsible under agency principles, Id. at 626 n. 4); California Trucking Association v. Brotherhood of Teamsters, 679 F.2d 1275 (9th Cir.1981) (for local liability, “law still requires proof of agency in order to impose liability for damages resulting from wildcat strikes; recovery denied absent instigation, support, ratification or encouragement of work stoppages.” Id. at 1287 c.f. n. 17, at 1287); Davis Company v. United Furniture Workers Etc., 674 F.2d 557 (6th Cir. 1982) (union not liable for illegal strike absent showing of authorization, participation, or ratification, Id. at 564-565); Shimman v. Frank, 625 F.2d 80 (6th Cir.1980) (Union liable on agency theory only. Id. at 95-96); Airco Speer Carbon-Graphite v. Local 502, Etc., 494 F.Supp. 872 (W.D.Pa. 1980); Lakeshore Motor Freight v. International Brotherhood of Teamsters, Etc., 483 F.Supp. 1150 (W.D.Pa.1980). c.f. T.W. Helgesen v. International Association of Bridge, Etc., 548 F.2d 175, 184 (7th Cir. 1977) (Pre-Carbon Fuel case implying sole measure of union responsibility is agency principles).

The Court’s decision in this regard is also buttressed by references to Carbon Fuel in the subsequent case of Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 101 S.Ct. 1836, 68 L.Ed.2d 248 (1980). In Complete Auto Transit, the Supreme Court was faced with the issue of whether a cause of action against union members existed for breach of a no-strike agreement. The Court concluded as follows:

The legislative debates and the process of legislative amendment demonstrate that Congress deliberately chose to allow a damages remedy for breach of the no-strike provision of a collective bargaining agreement only against unions, not individuals, and, as to unions, only when they participated in or authorized the strike. See Carbon Fuel Co. v. Mine Workers, 444 U.S. 212, 216 [100 S.Ct. 410, 413, 62 L.Ed.2d 394] (1979). Congress itself balanced the competing advantages and disadvantages inherent in the possible remedies to combat wildcat strikes, and ‘we are strongly guided by its choice.’

451 U.S. at 416, 101 S.Ct. at 1845 (emphasis supplied). The Court’s language in the above quoted material broadly referring to all unions, not just those on the international or district level, is indicative that Carbon Fuel was meant to apply to locals as well. Accordingly, the Court holds the mass action theory is no longer viable as a separate theory of liability. However, the Court believes it would be unrealistic to hold that the mass action of a large number of union members is irrelevant when making a determination as to a Local Union’s liability. The rationale behind the mass-action theory is that “large groups of men do not act collectively without leadership.” Eazor, supra at 963. Thus, the mass action theory has in actuality served a legal device by which agency liability on the part of the Local Union was presumed where mass action by its members occurred. The dictates of Carbon Fuel would seem to preclude a conclusive presumption of this sort. However, logic would not exclude evidence of a mass action as being irrelevant to an inference of agency liability on the part of the Local under the principles of Carbon Fuel. Plaintiff may introduce evidence of mass action and argue to the jury that such mass action could not have occurred absent ratification, authorization or participation by union agents acting within the scope of their authority. Defendant may introduce evidence and argument to the contrary. What weight should be given to any such evidence of mass action as indicative of agency liability will be for the jury to determine, depending on the facts of the case.

Thus, the Court will proceed to examine whether summary judgment is appropriate solely on an agency theory. Under the theory of common-law agency espoused by the Supreme Court, a union is liable only for strikes which it authorized, participated in, ratified or encouraged. Consolidated Coal, supra, 725 F.2d 1258 at 1263. The “all reasonable means” test which plaintiff refers to was rejected by Carbon Fuel and has no place in a theory of common law agency. However, whether action or lack of action by the union is indicative of agency liability is a question for the jury.

A helpful summary of agency liability is found in the case of Central Appalachian Coal Company v. United Mine Workers of America, 376 F.Supp. 914, 922-923 (S.D.W. Va.1974):

The Court would begin by pointing out that the law does not generally hold a union organization responsible for the unsanctioned acts of its individual members. (citations omitted) Liability under § 301 of the LMRA does not, however, require union complicity in the form of an express or official authorization or ratification. Rather, it is sufficient that an authorized union agent has acted in a manner tending to instigate, encourage, condone or otherwise support the breach activity (citations omitted).
It is necessary, of course, that the union agent or agents involved have been acting within the scope of their authority and on behalf of each of the union affiliates charged.

Thus, in the present case, plaintiff must show as a matter of law, that union agents acting within the scope of their authority authorized, participated in, ratified or encouraged the strike. In the Court’s opinion, plaintiff has not met its burden of proof.

Initially, the Court notes that plaintiff liberally refers to statements in depositions which it did not provide to the Court. Thus, the evidentiary basis for the motion is lacking. However, even assuming that the statements referred to were in fact made, union liability is not clear as a matter of law. The two cases cited by plaintiff as supportive of its position do not stand for the proposition that certain actions or inactions by the union will result in its liability as a matter of law. Rather, in the circumstances of the cases before them, the Courts found union liability due to the fact that efforts by union officials to end the strike were “foreseeably ineffective.” Consolidation Coal Company v. Local 1702 UMWA, supra, at 886; United States Steel Corp. v. UMWA, 598 F.2d 363, 366 (5th Cir.1979). This decision was made in United States Steel in the context of a mine which had wildcat strikes on a frequency of one every other month for the previous five years. The sufficiency of the union’s actions to avoid liability was viewed in light of the past strike history. See Consolidation Coal Company v. International Union, Etc., 500 F.Supp. 72, 76 (D.Utah 1980). Plaintiff has not introduced similar evidence in support of its motion (and defendants contend such evidence would be inadmissable in any event) except to refer to a 10 year old Seventh Circuit opinion which detailed strike frequency of Local 1487 in the early Seventies. Whether such evidence is relevant to actions in the 1980’s is highly doubtful. The Fourth Circuit in Consolidation Coal Co., supra, relied heavily on the facts of United Steel to also hold that union efforts to end the strike were foreseeably ineffective without any indication that they were viewed in light of past strike activity. Furthermore, there is evidence in the present case that greater efforts were made by the union in the work stoppages at issue here than was the case in Consolidation Coal Co., supra, 709 F.2d 882. See portions of depositions cited in defendants’ Memorandum, at p. 34-35. It is also important to note that some of the actions not taken by the Union in Consolidation Coal, supra, 709 F.2d at 886, and relied on by the Court to impose liability have been viewed by other Courts as inconclusive to demonstrate ratification, authorization, encouragement, etc. See North River Energy Corporation, supra, at 1192 (failure of union officials to work cannot be construed as authorization); United Steel Workers of America v. Lorain, Etc., 616 F.2d 919, 923 (6th Cir.1980) (failure to discipline strikers did not support inference of ratification). Neither does the Court find that the plaintiff has carried its burden when the alleged mass action of its members is also considered as proof of defendants’ agency liability. Plaintiffs arguments in this regard are conclusory and, in the Court’s opinion, should be presented to the jury for its determination in light of all the circumstances in the case.

The Court may not try disputed fact questions on the basis of evidence before it (Carter v. Williams, 361 F.2d 189, 194 (7th Cir.1966)) and all inferences drawn from such evidentiary materials must be in favor of the non-moving party. Cedillo v. International Association of Bridge, Etc., 603 F.2d 7, 11 (7th Cir.1979). Applying this standard, the Court does not find summary judgment appropriate. In sum, the Court believes the question of union liability for the strikes at issue is best resolved by the jury at trial where a clearer picture of the exact circumstances involved and the reasonableness of union’s actions or inactions in light of those circumstances may be had.

Accordingly, plaintiff’s Motion for Summary Judgment is hereby DENIED.

IT IS SO ORDERED.


author: SIFTON, District Judge.

text:
    NEW YORK COMMUNITY ACTION NETWORK, INC., Paul Hill, Adrienne Esposito and Jeffrey D. Fullmer, Plaintiffs, v. TOWN OF HEMPSTEAD and Daniel M. Fisher, Jr., as Clerk of the Town of Hempstead, Defendants.
    No. CV-84-3513.
    United States District Court, E.D. New York.
    Oct. 18, 1984.

      Estroff, Waldman & Poretsky by Mark S. Olinsky, New York City, for plaintiffs.
    W. Kenneth Chave, Jr., Hempstead, N.Y., for defendants.
   MEMORANDUM AND ORDER

SIFTON, District Judge.

This action, brought by a citizens’ canvassing organization under 42 U.S.C. § 1983, alleges violations of the first, fifth and fourteenth amendments of the Constitution of the United States by the Town of Hempstead in its enactment and enforcement of an anti-solicitation ordinance, Chapter 118 of the Code of the Town of Hempstead. The complaint also alleges a violation of Article 1 of the New York Constitution. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1443.

This matter first came before the Court on plaintiffs’ motion for a preliminary injunction barring the enforcement of Chapter 118 of the Code of the Town of Hemp-stead, pursuant to Rule 65 of the Federal Rules of Civil Procedure. In particular, plaintiffs asked this Court to enjoin application of § 118-11 so that they might continue to canvass and solicit in the Town of Hempstead between the hours of 7:00 and 9:00 p.m.

Pursuant to agreement of the parties, trial of the action on the merits before the undersigned sitting without a jury was consolidated with the hearing on plaintiffs’ application as permitted by Rule 65(a)(2) of the Federal Rules of Civil Procedure. Based on the evidence presented at the hearing, including, pursuant to agreement of the parties, the undisputed facts contained in each side’s affidavits on the application for preliminary relief, I conclude that plaintiffs are entitled to injunctive relief. What follows sets forth the findings of fact and conclusions of law on which that determination is based as required by Rules 65 and 52(a) of the Federal Rules of Civil Procedure.

Plaintiff, New York Community Action Network, Inc. (“NYCAN”), is a not-for-profit corporation organized under the laws of the State of New York and accorded exempt status under § 501(c)(4) of the Internal Revenue Code. Its stated purpose, as specified in its by-laws, is “to increase the power of low and moderate income people through collective action in a democratic non-violent manner.” Its activities include lobbying in state and local legislative bodies, community organizing, preparation of research reports, and distribution of literature. Since 1983 NYCAN has grown to a membership of 17,000. Each member receives a bi-monthly newsletter. Plaintiffs Esposito and Fullmer are NY-CAN canvassers. Plaintiff Hill is their supervisor.

The primary vehicle by which NYCAN performs its activities including fund raising is through door-to-door canvassing. NYCAN uses canvassing to distribute literature, to collect signatures for petitions, to disseminate its views, and to raise funds.

NYCAN’s canvassers are paid employees who must follow the NYCAN Canvassing Policy Handbook. Almost all canvassing is done between 4:00 and 9:00 p.m. As a result of its canvassing, NYCAN raised approximately $962,000 in 1983. This is the bulk of the source of its operating funds, since the total amount raised from non-canvassing sources was $72,000.

The Town of Hempstead is located in Nassau County and has a population of approximately 760,000 people. This is slightly more than one-half of the population of Nassau County and one-third of the population of the combined Nassau and Suffolk counties. NYCAN considers the residents of Hempstead an important target group because two of its principal issues in 1983 were clean-up efforts of a toxic waste dump site near Hempstead and opposition to the rate increases sought by the Long Island Lighting Company.

The Town of Hempstead has allowed another public interest canvassing organization, the New York Public Interest Research Group (“NYPIRG”) to be exempted from the challenged ordinance. Pursuant to a June 1980 written agreement signed by the Hempstead Town Clerk and the NYPIRG Canvass Director, NYPIRG is allowed to canvass until 9:00 p.m. In accordance with that agreement, NYPIRG provides the Town of Hempstead with the names and addresses of its canvassers and requires all its canvassers to carry suitable identification. NYPIRG now regularly canvasses in Hempstead. NYCAN is willing to enter into a similar agreement and provide the Nassau County police with notice as to the areas in which its canvassers will operate on a given night.

This dispute grew out of the following events. In March 1984, one NYCAN canvasser was threatened with arrest by a Nassau County police officer. In April 1984, another NYCAN canvasser was arrested while canvassing in the evening. As a result of these incidents, NYCAN suspended its canvassing in Hempstead and on April 12, 1984, held a meeting with Town Attorney W. Kenneth Chave. Representing NYCAN were its Executive Director and Canvassing Director. After that meeting negotiations went forward to attempt to allow the canvassing to continue. The initial intention behind the negotiations was to enter into an agreement similar to the one between NYPIRG and Hemp-stead. On July 6, 1984, Deputy Town Attorney Daniel P. McCarthy advised NY-CAN that the Town Board would consider adopting an agreement at their meeting on July 24, 1984, to allow NYCAN to canvass until 9:00. On July 25,1984, Mr; McCarthy informed NYCAN’s attorney that the Town Board had considered the proposed agreement but decided not to adopt it. NYCAN has not resumed canvassing in Hempstead.

Section 118-11 of the Town Code makes it unlawful to canvass “after one-half hour before sunset or 7:00 p.m. prevailing time, whichever is earlier.” Other pertinent provisions of the ordinance include § 118-2(A), making it unlawful to canvass without a license, and § 118 — 4(C), which provides the Town Clerk discretion to grant a license upon determining that the applicant is a “fit and proper person.” Section 118-8 creates certain exemptions discussed more at length below, and § 118 — 11(A) makes it unlawful to canvass without first obtaining “the express invitation or permission” of the resident. Each violation of the ordinance is punishable by a fine of $250 and/or imprisonment for a period of 15 days.

It is beyond question that door-to-door canvassing of the sort here at issue, notwithstanding the fact that the canvassers solicit funds, is protected by the first amendment. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). Indeed, previously in this Court, three towns in Nassau County were enjoined from enforcing ordinances that prohibited door-to-door canvassing because they were found to be unconstitutional. New York Public Interest Research Group ("NYPIRG”) v. Village of Roslyn, 498 F.Supp. 922 (E.D.N.Y.1979). Justice Black, writing for the Court in Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), described the importance of the activities that plaintiffs seek to conduct:

“[A]s every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people.
“Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas.”

Id. at 146-47, 63 S.Ct. at 865.

This case is distinguishable from NYPIRG, supra, in that, here, the Town of Hempstead does not have a flat ban on door-to-door canvassing. Rather, Section 118-8 of the Town Code limits canvassing after one-half hour before sunset or 7:00 p.m., whichever is earlier. This, argues the Town of Hempstead, is a reasonable time, place and manner regulation designed to protect its citizens from undue annoyance and crime, which the town argues is more likely to occur after dark.

Hempstead is, of course, correct that it has the power to “regulate the activities of canvassers and solicitors if the regulation is in furtherance of a legitimate governmental objective.” Ass’n of Community Organizers for Reform Now (ACORN) v. City of Frontenac, 714 F.2d 813 (8th Cir.1983); Hynes v. Mayor of Oradell, 425 U.S. 610, 617-18, 96 S.Ct. 1755, 1759, 48 L.Ed.2d 243 (1975). However, although Hempstead’s alleged justifications are legitimate objectives, the town has not met its burden of establishing the statute’s constitutionality by demonstrating that such objectives cannot be met by less intrusive restrictions. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1969).

The appropriate standard for determining the constitutionality of time, place and manner regulations of the type here presented is a matter of some disagreement. In ACORN, supra, the Eighth Circuit struck down as unconstitutional a city ordinance preventing canvassing between 6:00 p.m. and 9:00 a.m. The test applied was stated as follows:

“Since constitutional principles require that the regulation be narrowly drawn to further the legitimate governmental objective, the proponent of the regulation must demonstrate that the government’s objectives will not be served sufficiently by means less restrictive of first amendment freedoms.”

714 F.2d at 816 (footnote omitted).

The court found that there were less restrictive means available to the City of Frontenac, namely, enforcement of its penal and trespassing laws and the imposition of identification requirements. In reversing the district court, the circuit court rejected the test used below.

“The district court reasoned that since the regulation was content neutral, that since Frontenac had a legitimate interest in protecting its citizens’ privacy and safety, and that since ACORN had ample alternative opportunities to contact the public, the ordinance was a permissible time, place, and manner regulation of ACORN’s exercise of its first amendment rights.”

Id. at 816.

Contrary to ACORN is the Pennsylvania Alliance for Jobs and Energy (PAJE) v. Borough of Munhall, 743 F.2d 182 (3d Cir.1984), which upheld the constitutionality of four Pennsylvania town ordinances that prohibited door-to-door canvassing after 5:00 p.m. There, the court addressed the issue of what standard to apply in the following language:

“In Tacynec v. City of Philadelphia, 687 F.2d 793 (3d Cir.1982), this court considered the standard by which time, place, and manner restrictions of first amendment activities are to be measured. We conclude that the Heffron [v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981)] ‘ample alternative channels of communications’ standard applies, unless the regulation in question is content-based. Then the more stringent ‘least restrictive alternative’ standard is appropriate because, as Judge Adams noted, of the special ‘danger to First Amendment freedoms inherent in a content-based scheme of regulation.’ ”

Id., at 185.

In this Circuit the appropriate test of time, place and manner ordinances is that used in ACORN: is the ordinance, whether or not “content based,” the least restrictive alternative. New York City Unemployed and Welfare Council v. Brezenoff, 677 F.2d 232, 237 (2d Cir.1982). In Brezenoff, the court considered a regulation that prohibited welfare organizations from soliciting and seeking contributions from welfare recipients at welfare centers. The court held that the district court had erred by failing to determine “whether the ban is the least restrictive means” of preventing fraudulent solicitation. 677 F.2d at 239. In Brezenoff, Heffron was specifically cited for the proposition that a time, place and manner regulation “must be closely related to a significant governmental interest and must be the least restrictive means of serving that interest.” 677 F.2d at 237. Under the standard applicable in this Circuit, the enforcement of Hemp-stead’s ordinance must be enjoined since it is neither narrowly tailored to its legitimate ends nor is it the least restrictive of first amendment rights.

The Hempstead ordinance constitutes a blanket prohibition of early evening canvassing with certain exceptions. As noted, this ordinance is burdensome to NYCAN’s first amendment interests. In order to adequately get its message across, NYCAN depends upon people being at home. Both sides have presented evidence on the percentage of people who will be denied NY-CAN’s speech if early evening canvassing is prohibited, in the form of a Census Department publication, “Who’s Home When” (January 1973). That study shows that between the hours of 8:00 a.m. and 9:00 p.m. the greatest percentage, i.e., 78 percent, of total residents are home between 8:00 p.m. and 9:00 p.m., while over 70 percent of homes have at least one person at home over the age of 14 years between the hours of 4:00 and 7:00 p.m. NYCAN need not, however, rely on one person to communicate its views to other members of the household. Moreover, NYCAN's statistics show that most of its contributions are received between the hours of 7:00 and 9:00 p.m., rather than earlier. In addition, this court can take judicial notice, as the court did in Connecticut Citizens Action Group v. Southington, 508 F.Supp. 43 (D.Conn. 1980), that “it is common knowledge that most working people are employed outside the home during the working day until after 6:00 p.m. The hours after six o’clock would encompass the normal evening hours during which prospective household occupants would normally be available to be solicited or canvassed.” 508 F.Supp. at 46. The town’s blanket prohibition thus intrudes substantially upon the first amendment rights of both NYCAN and those willing to listen to its canvassers, who, because they work during the day, are denied access to NYCAN’s speech.

It is also apparent that the ordinance is not narrowly tailored to the town’s objectives of preventing crime and protecting citizens from undue annoyance. As to the question of preventing crime, the conclusion of the court in ACORN is apposite:

. Frontenac has a legitimate interest in protecting its residents from crime. This objective can be served satisfactorily by enforcement of the city’s application and identification requirements for all canvassers, peddlers, and solicitors. In addition, trespassing, fraud, burglary, or any other offense against a resident or his property may be prohibited and the violator punished under existing penal laws.”

Id., 714 F.2d at 818-19 (footnote omitted). Hempstead has not established that this ordinance is necessary because the criminal law inadequately protects the residents of Hempstead. There was no showing of a crime wave or of any positive effect on diminishing crime which the ordinance has had. Furthermore, NYCAN’s willingness to give the Nassau County police daily notice as to which areas it will canvass as well as to require its canvassers to carry identification suggests that narrower means could well serve the town’s crime prevention objective. The town has thus not met its burden of establishing that the ordinance is narrowly and precisely drawn to meet its legitimate objectives. Village of Schaumburg v. Citizens for a Better Environment, supra, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73.

Similarly, preventing annoyance and ensuring the privacy of Hempstead residents can be accomplished by means that are less intrusive on constitutional freedoms. Schaumburg, supra at 639, 100 S.Ct. at 837. The town’s trespassing laws are a starting point for protecting residents from people who remain on property after the homeowner has stated that he or she wishes to be left alone. Furthermore, a resident cannot only close the door when he or she is not interested in the canvasser’s message, the resident can foreclose all soliciting by a sign at the door which so states. The Supreme Court has long recognized a homeowner’s right to keep out unwelcomed “speakers” through either closing the door or posting a “no soliciting” sign. See Rowan v. Post Office Department, 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). The fact that there is a modicum of annoyance that a homeowner might have to bear to protect NYCAN’s rights is a recognized price for the freedom of expression. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) . ACORN, supra. The blanket prohibition of this constitutionally protected speech is thus not justified on the theory that it is necessary to protect privacy and prevent annoyance.

The town’s argument that the purpose of this statute is to prevent crime or annoyance and preserve privacy is also substantially undercut by the extensive list of exceptions. Among specifically exempted groups are religious corporations, educational institutions, social and alumni organizations, newspaper distributors, sellers of fruit, fish or farm products, and representatives of private or public utilities. In addition, as discussed above, NYPIRG has been expressly exempted. In light of the extensive exemptions, it is difficult to determine how this ordinance substantially furthers the interest of ensuring privacy, avoiding crime or otherwise protecting town residents from annoyance.

NYCAN makes several other arguments as to why this statute is unconstitutional. These are that the NYPIRG exemption creates an unconstitutional discrimination, as it represents a preferential treatment of one group’s exercise of constitutional rights, see Members of City Council of Los Angeles v. Taxpayers for Vincent, — U.S. -, 104 S.Ct. 2118, 2128-29, 80 L.Ed.2d 772 (1984), and that the statutory exemptions and specifically the exemption for utilities constitute unconstitutional discrimination based on content. Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972) . NYCAN further argues that the licensing provisions of § 118-4(C), which provide for granting a solicitation license when the town clerk finds “the applicant is a fit and proper person to hold a peddler’s license” is an unconstitutional vesting of power in a municipal official over speech. See Secretary of State of Maryland v. Joseph H. Munson Co., — U.S.-, 104 S.Ct 2839, 81 L.Ed.2d 786 (1984). Finally, NYCAN argues that the ordinance’s fee requirements are unconstitutional as is the provision in § 118-11(A), making it unlawful to canvass without first obtaining the express invitation or permission of the owner, occupant or lessee. On that latter point, see NYPIRG v. Village of Roslyn, supra, in which Judge Mishler held such a requirement unconstitutional. 498 F.Supp. at 930.

All of these arguments have differing but substantial degrees of merit. But, because I find the statute unconstitutional under the standard of Heffron and Brezenoff I need not reach them.

Since I find the hourly restrictions contained in § 118-11 of Chapter 118 of the Code of the Town of Hempstead unconstitutional, their enforcement must be enjoined. The parties are directed to settle an appropriate order on notice. Plaintiffs also request attorney’s fees under 42 U.S.C. § 1988. The Court will consider that issue upon subsequent application by the parties.

SO ORDERED.

      . According to plaintiffs, the canvassers were both black and were canvassing in a white neighborhood.

      . Thus, during the winter months, under § 118— 11, all canvassing would have to end around 5:00 p.m.

      . Note that, given the statutory exceptions and the NYPIRG exemption, this statute on its face and as applied may be content-based. This argument is made by NYCAN.

      . It is worth noting that the other court in this circuit that has considered a similar case used the standard that the regulation must be narrowly drawn to protect a legitimate community interest and that the regulation must not intrude unduly upon first amendment rights. Connecticut Citizens Action Group v. Southington, 508 F.Supp. 43 (D.Conn.1980). Cf. New Jersey Citizen Action v. Edison Township, No. 84-475 (D.N.J. April 5, 1984). See Wisconsin Action Coalition v. City of Kenosha, No. 84-343 (E.D. Wisc. June 5, 1984); Pennsylvania Public Interest Coalition v. York Township, 569 F.Supp. 1398 (M.D.Pa.1983); Citizens for a Better Environment v. Village of Olympia, 511 F.Supp. 104 (N.D.Ill.1980).


author: PANNER, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Stanley A. MEYERS, Defendant.
    Crim. No. 83-60036-PA.
    United States District Court, D. Oregon.
    Oct. 22, 1984.

      Charles H. Turner, U.S. Atty., Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff.
    Robert J. McCrea, McCrea, P.C., Eugene, Or., for defendant.
   OPINION

PANNER, Chief Judge.

On September 8,1983, the Federal Grand Jury for the District of Oregon filed a four-count indictment charging defendant Stanley A. Meyers with:

Count 1\ Conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846;
Count 2: Possessing approximately 17 ounces of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1);
Count 3\ Possessing approximately 9 ounces of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and
Count 4: Possessing approximately 16 ounces of marijuana, in violation of 21 U.S.C. § 844.

Beginning February 14, 1984, the case was tried to a jury, with Judge Earl H. Carroll presiding. The jury could not reach a verdict. After the trial, Judge Carroll denied defendant’s motion for a judgment of acquittal and defendant’s motion for a dismissal of the indictment. Defendant appealed, but the Ninth Circuit dismissed the appeal. The parties stipulated that the second trial would be tried to the court and waived a jury. Testimony was presented in the form of the transcript of the prior trial and one live witness. The parties retain their evidentiary objections made in the prior trial. I find the defendant guilty of the second and third counts, and not guilty of the first and fourth counts.

STATEMENT OF THE LAW

The first count against the defendant is for conspiracy to distribute cocaine. The elements of a criminal conspiracy are:

(1) An object to be accomplished.
(2) A plan or scheme embodying means to accomplish that object.
(3) An agreement or understanding between two or more of the defendants whereby they become definitely committed to cooperate for the accomplishment of the object by means embodied in the agreement, or by any effectual means.
(4) ... an overt act.

Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir.), aff'd, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946).

[A] conspiracy may be proved by evidence that is entirely circumstantial, and items of circumstantial evidence must be viewed collectively, not in isolation____ “An otherwise innocent act of ‘relatively slight moment,’ may, when viewed in the context of surrounding circumstances, justify an inference of complicity____”

United States v. Cutaway, 524 F.2d 609, 612 (9th Cir.), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976).

Those knowingly participating in the conspiracy in any respect or to any degree are guilty of that crime ...

United States v. Dunn, 564 F.2d 348, 356 (9th Cir.1977) (emphasis in original).

Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.

United States v. Dunn, 564 F.2d at 357 (emphasis in original).

The second and third counts against the defendant are for possession of cocaine with intent to distribute.

To convict for possessing drugs with the intent to distribute, the Government must show that a defendant knowingly possessed the drugs and that, at some point coincident with his possession, he intended to distribute them to another. See United States v. Gomez-Tostado, 597 F.2d 170, 173 (9th Cir.1979); United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982). The concept of “distribution” includes sharing drugs with a third party, and is not limited to commercial ventures. United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979).

Possession of drugs may be constructive as well as actual, may be joint among several individuals, and may be proven by circumstantial evidence. United States v. Riggins, 563 F.2d 1264, 1266 (5th Cir.), cert. denied, 439 U.S. 848, 99 S.Ct. 148, 58 L.Ed.2d 150 (1977).

The defendant’s intent to distribute a drug can be inferred from the purity, price, and quantity of the drug possessed. For example, the purer the drug, the more likely that it will be “cut” or diluted, and then resold before being consumed. United States v. Palmere, 578 F.2d 105, 108 (5th Cir.), cert. denied, 439 U.S. 1118, 99 S.Ct. 1026, 59 L.Ed.2d 77 (1978); United States v. Reese, 561 F.2d 894, 898 n. 8 (D.C.Cir.1977).

The fourth count against the defendant is for possession of marijuana. With regard to this offense, the government must show knowing or intentional possession. See 21 U.S.C. § 844 (1981). Possession of marijuana may be constructive rather than actual, and may be established by circumstantial evidence. United States v. Zumpano, 436 F.2d 535, 538 (9th Cir.1970).

The burden of proof is on the government to prove beyond a reasonable doubt each element of the charged offenses. Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 30, 50 L.Ed.2d 25 (1976). To meet this burden, the government may rely on circumstantial evidence. Circumstantial evidence can be used to prove any fact, including a fact from which another fact is to be inferred. United States v. Kelly, 527 F.2d 961, 965 (9th Cir.1976). Moreover, even where no single piece of circumstantial evidence supports a finding of guilt, the accumulation of such evidence can support such a finding. See United States v. Morando-Alvarez, 520 F.2d 882, 884-85 (1975). Accordingly, to convict the defendant this court must find that the circumstantial evidence here supports a finding of guilt beyond a reasonable doubt.

FINDINGS OF FACT

I find the following facts. The defendant Stanley Meyers was employed by the Lane County District Attorney’s Office from September, 1980 to June 18, 1982. During this time, he served as Coordinator of the Lane Interagency Narcotics Team (LINT). LINT was comprised of law enforcement officers from various law enforcement agencies in Lane County, including the District Attorney’s Office, the Eugene Police Department, and the Springfield Police Department. LINT was disbanded on June 18, 1982, because of budget cuts, and Meyers was laid off. He returned to work for the District Attorney’s Office as an investigator on September 18, 1982, but was discharged on December 27, 1982, after his involvement in the following events.

On March 4,1982, LINT personnel seized approximately seventeen ounces of cocaine from Edgar Regini at the Portland International Airport. Meyers headed the investigation that resulted in this seizure. LINT officers Dave Wilson, Steve Tindall, Robert Cope, and Randy Belair were also present. The LINT team brought the cocaine to the LINT office that night.

The following day, March 5, 1982, photographs were taken of the Regini evidence, including the cocaine. When the cocaine was seized, it was packaged in two clear plastic bags. One was larger than the other. After the photographs were taken, LINT officer Wilson placed the larger cocaine bag inside a manila envelope, which he marked “1-A.” He then placed the other bag of cocaine inside a second manila envelope, which he marked “1-B.” Wilson and his LINT partner Steve Tindall then took the cocaine to the Oregon State Police (OSP) laboratory for analysis.

After reaching the OSP lab, Tindall and Wilson gave the cocaine to OSP technician Jim Pex. Pex took small samples from the plastic bags in envelopes 1-A and 1-B, tested these samples and found them, to contain cocaine. Pex preserved the remainder of the samples at the lab. He also returned the bulk of the cocaine, which was still in bags 1-A and 1-B, to Wilson and Tindall. Wilson and Tindall then returned directly to the LINT office. Once there, they placed the cocaine on Meyers’ desk, where he was then sitting. Wilson also gave Meyers an envelope that Wilson had marked “For Prints.” Wilson told Meyers that he thought that the plastic bags should be sent in the “For Prints” envelope to the OSP lab for fingerprint analysis. The cocaine would be removed and placed in new bags. Meyers disagreed. There is no evidence that Meyers or anyone else ever sent the two plastic bags in for fingerprinting.

I find that Meyers placed the Regini cocaine in the safe in the LINT office. The safe was at times used for the storage of drugs seized by LINT, but long-term storage of drugs in the safe was discouraged by many in the District Attorney’s Office. The safe had a three number combination, which was changed whenever a new LINT Coordinator was named. In keeping with this policy, the combination was changed when Meyers took the job. Meyers received the combination and had regular access to the safe. Deputy District Attorney Jim Hunt also knew the combination and had used it to open the safe. Lane County District Attorney Pat Horton and Kelly Fex, his secretary, had individual copies of the Meyers’ combination but neither used it to open the safe. Moreover, neither gave the combination to anyone else. I further find that no one else was given or learned this combination.

LINT was disbanded June 18, 1982. Sometime between June 7, 1982, and June 18, 1982, Chief Deputy District Attorney Hartstrom asked Meyers if any drugs were in the safe. Meyers denied that there were.

On October 15, 1982, Pat Horton ordered the LINT safe moved to his office where Jim Hunt opened it. Horton then checked the contents of the safe and found the “For Prints” envelope. This envelope contained the clear plastic bag marked “1-B,” but did not contain the clear plastic bag marked “1-A.” The envelope did contain, however, a second, larger, clear plastic bag. Both plastic bags contained a white powdery substance. After testing, this substance proved to contain only one percent cocaine. The remainder was made up of approximately 70-80 percent flour, less than five percent sacharrin, and at least fourteen percent manitol, a crystal like substance commonly used to cut street drugs. Subsequent testing of the samples taken from the original Regini cocaine, however, showed that the samples constitute high grade cocaine. The Regini cocaine was therefore stolen, and replaced by the counterfeit mixture. I find this theft occurred between March 5, 1982, and October 15, 1982.

Another cocaine theft occurred in the LINT office. On June 17, 1982, LINT officers seized approximately nine ounces of cocaine, a pound of marijuana, and drug paraphernalia during the arrest of Robert Fous and John Lara. This cocaine, the “Fous cocaine,” was packaged in two clear plastic bags when seized. One of these plastic bags was inside a zippered black plastic bag.

Meyers also headed the Fous investigation, and helped transport the Fous evidence to the LINT office on June 17. LINT officer Robert Cope was assigned to take the cocaine to the OSP lab for analysis. The next day, Cope and LINT officer Keith Burton repackaged the cocaine and marijuana into different plastic bags, and sent the original bags to the OSP lab for fingerprinting. Cope then placed the cocaine, the marijuana, and the drug paraphernalia into a cardboard box that he found at the LINT office. Appropriately, the box had the brand name “Vanish” printed on it.

Cope delivered the Vanish box to the OSP lab on October 18, 1982. OSP lab technician Ken Meneely placed the drugs and paraphernalia in the Vanish box and sealed it with masking tape.

After the Fous seizure, Meyers had instructed Cope to pick up the Fous drugs from the lab and take them to the Springfield Police Department evidence facility. This facility provided better security than the LINT office did. Cope did not pick up the Fous drugs. Instead, at 4:30 p.m. on June 29, 1982, Meyers picked up the sealed Vanish box from the OSP lab. Even though LINT had been disbanded for eleven days at this time, Meyers did not take the drugs to the Springfield evidence facility. Instead, he stated that he took the Vanish box to the abandoned LINT offices, where he unsealed the box, retrieved the cocaine and placed it in the LINT safe, and placed the box in a cabinet in the office.

On October 15, 1982, when Horton had the safe opened, he found a second manila envelope along with the “For Prints” envelope from the Regini case. This second envelope contained a large plastic bag, which held a white powdery substance, and also a zippered black plastic bag that contained another clear plastic bag, which also held a white powdery substance. The second envelope was marked “Fous, Robert & Lara, John.” Handwriting analysis shows that the defendant printed these words. The “Fous & Lara” envelope was not in the Vanish box while Meneely had it at the lab.

Subsequent tests of the powdery substance in the “Fous & Lara” envelope showed'that this substance was made up of the same bogus mixture found in the “For Prints” envelope. The Fous cocaine was also stolen, and replaced by the counterfeit mixture. I find that this theft took place between June 29, 1982, when Meyers picked up the Vanish box, and October 15, 1982. ;

Other important events occurred before the discovery of the counterfeit cocaine. On June 30, 1982, the day after Meyers picked up the Fous cocaine from the OSP lab, Meyers’ partner at LINT, Randy Be-lair, went to the Centennial Bank in Springfield. In 1981, Meyers and Belair had opened a safe deposit box under the names of “Stan Munson” and “M.R. Moore,” their undercover aliases. Belair’s fingerprints were found on this box. This box, # 456, was not large enough to accommodate both the Regini cocaine and the Fous cocaine. On June 30, 1982, Belair closed this box and rented a larger box, # 130. Both “Munson” and “Moore” signed the rental card for the new box. One of Meyers’ fingerprints and three of Belair’s fingerprints were found on the box. Subsequent tests by the OSP showed that the cocaine could be packaged so that both the Regini cocaine and the Pous cocaine could fit within box # 130.

On July 13, 1982, Hunt opened the LINT safe. He and Hartstrom then inventoried each item in the safe. They found no drugs in the safe. Officer Cope was also present in the office at this time. Cope testified that he could smell the strong odor of the Regini cocaine when the safe was opened. Given the testimony of Hunt and Hartstrom that they carefully examined each item in the safe, but found no drugs, I find there was no cocaine in the safe on July 13, 1982. On July 19, 1982, Horton had additional locks installed on the LINT office door to render it more secure. The Regini cocaine was stolen before July 13, 1982.

On July 8, 1982, Meyers moved to Montana, where he had obtained a job as a narcotics officer. In an initial meeting with his supervisors there, Meyers asked whether he could use “reverse stings” in his undercover work. In a traditional drug sting, the undercover officer offers to buy drugs from the suspect. In the reverse sting, however, the officer tries to sell drugs to the suspect. Meyers’ supervisors told him not to conduct a reverse sting.

On July 15, 1982, Meyers rented a house from Cal Canon. Meyers then learned that Canon had a drug background, and asked a supervisor for more information about Canon. The supervisor told Meyers not to “work” Canon, as another agency was already investigating Canon. Nevertheless, Meyers approached Canon approximately five days later and asked him if he or any of his contacts would like to buy “powder,” a slang term for cocaine. Meyers told Canon that the powder was worth $25,000 to $50,000, which was also the approximate combined value of the Regini and Pous cocaine. Canon did not purchase the drugs.

On August 10, 1982, Meyers returned to Eugene, where he spent eight days. While there, he accessed the new safe deposit box twice on August 17, at 11:45 a.m. and at 1 p.m. While in Eugene, Meyers also learned that he would be rehired at the Lane County District Attorney’s Office due to an increase in funding. Thus, when Meyers returned to Montana on August 18, 1982, he intended to resign the Montana job. Nevertheless, on the evening of his arrival in Montana, he met with Canon and tried to sell cocaine to him, despite orders not to approach Canon about drugs. Shortly afterwards, at 1:39 a.m. of the next day, Meyers called Randy Belair in Springfield. He called Belair again only a few hours later, at 7:25 a.m.

On August 19,1982, Meyers met with his supervisor in Montana and told him that he was resigning. The following day, the supervisor told Meyers to try to buy some drugs from Canon, in an attempt to get some results from Meyers before he left. Having finally received approval to work Canon, Meyers filed a report that described his August 18, 1982 meeting with Canon.

The government alleges that this report contains false statements regarding this meeting. I find those allegations to be true. The first false statement Meyers made is that he first met Canon on August 18,1982. Canon testified, however, that he first met Meyers about July 19, 1982, that he met again with Meyers a day or two later, and that this second meeting specifically concerned drug trafficking. The second false statement Meyers made is that he tried to buy drugs from Canon, rather than sell drugs to Canon. Canon’s testimony shows that Meyers offered to sell drugs to Canon at least twice.

At the end of August, Meyers returned to Eugene. He resumed working as an investigator for the District Attorney’s Office on September 13,1982. A month later, on October 15, 1982, the LINT safe was opened and the “For Prints” and “Pous & Lara” envelopes were discovered. On October 19, 1982, Pat Horton instructed Meyers and Dave Wilson to deliver these envelopes to the Springfield evidence facility. Horton did not yet know that the cocaine was bogus. He indignantly asked Meyers why he had left the drugs in the safe. Horton cannot recall that Meyers made any response to his question. Meyers and Wilson then delivered the bogus cocaine to the Springfield evidence facility, where it remained until November 10, 1982.

The bogus nature of the cocaine was discovered November 10, 1982, after a pretrial conference in the Fous case. In preparation for the conference, Cope had picked up the bogus cocaine and other non-drug evidence from Springfield, and brought them to Deputy District Attorney Dan Koenig. Koenig noticed that the marijuana seized from Fous and Lara was missing. Meyers and Cope then searched the LINT office, but did not find the marijuana.

Cope then checked for the marijuana at the OSP lab. There, Ken Meneely told him that the Fous cocaine had not been packaged in the “Fous & Lara” envelope, and that this envelope had not been in the Vanish box when Meneely first examined it. Cope then field tested the powder, and found that it was not cocaine. A subsequent lab examination confirmed his suspicions. Both the Regini and Fous cocaine were counterfeit.

At this point an investigation began. On November 10, 1982, Pat Horton, who was hospitalized with a back problem, asked Koenig and Hunt to come to the hospital. Shortly thereafter, Meyers asked Hunt what the meeting was about. Hunt answered falsely. Meyers then went to Koenig’s office and asked him what the meeting was about. Koenig also answered falsely.

On Saturday, November 13, 1982, Hunt called Meyers to set up a meeting on a pretext, at the request of OSP Investigators. Hunt was unable to contact Meyers but did leave a message with Lisa Brawn, Meyers' girlfriend, asking Meyers to contact him.

At noon of November 13, 1982, Meyers and Belair went to the Centennial Bank in Springfield and closed out safe deposit box # 130. The history of this box is important. It was first opened the day after Meyers picked up the Fous cocaine from the Springfield evidence facility. Meyers entered the box twice on August 17, 1982. These visits were an hour and fifteen minutes apart. Similarly, Belair entered the box twice on September 13, 1982. These visits were an hour and five minutes apart.

On September 17, 1982, the box rental was extended until October 26, 1983. Despite this extension, Meyers and Belair closed the box on November 13, 1982, over a year before the box lease would terminate. At the bank, both appeared so nervous that one teller thought that they were “casing” the bank and thought of sounding the alarm. Belair misspelled the name of his alias on the admission ticket. After closing the box, Meyers and Belair removed the box’s contents, which included an accordion folder.

On November 13, 1982, Hunt and Hartstrom discovered the missing Vanish box in a wooden cabinet at the LINT office. Meyers had searched through this cabinet on November 10, but never stated that he saw the box at that time. This box contained the marijuana and paraphernalia from the Fous case.

On the evening of November 13, 1982, OSP officers Dean Renfrow and Cleve Veteto interviewed Meyers. They did not inform Meyers that the Vanish box had been discovered. When asked, however, about the whereabouts of the missing marijuana, Meyers stated that it was probably misplaced in one of the LINT cabinets.

On November 16, 1982, Meyers told Koenig and Hunt that he could not have switched the cocaine as he did not have access to the LINT office after Horton added the additional locks on July 19, 1982. The key to these locks, however, was kept in a desk drawer in the District Attorney’s Office. The evidence shows that Meyers used this key to enter the LINT office to obtain a rifle there on September 13, 1982. Thus, Meyers’ statement to Koenig was false.

On November 24, 1982, investigators learned of Meyers’ and Belair’s prior lease of safe deposit box # 130. No one told Meyers of the discovery. On November 26, 1982, Paul Alton, another investigator at the District Attorney’s Office, asked Meyers whether he then had or ever had a safe deposit box. Meyers answered no. On November 30, 1982, OSP investigators Renfrow and Veteto specifically asked Meyers whether he had any safe deposit boxes under his name or any alias. Meyers again answered no. Finally, on December 2, 1982, Meyers testified under oath before a county grand jury investigating the cocaine theft. Once more, he denied that he had ever had a safe deposit box. I find that Meyers had box # 130 at the Centennial Bank, and answered falsely to each of the above questions.

Meyers did several things which were calculated to facilitate the theft of the cocaine from the Regini and Fous cases. He stored the Regini and Fous cocaine in the LINT safe. He then made a false statement to Fred Hartstrom in June, 1982, that no drugs were in the safe. Meyers picked up the Vanish box from the OSP lab, and took the box to the abandoned LINT offices rather than to the secured evidence facility in Springfield. I cannot conclude that an officer of Meyers’ experience and intelligence would have left $30,000 to $50,-000 worth of drugs in an abandoned office, especially given his previous discussions with Hartstrom and Cope on this subject.

Safe deposit box # 130 was obviously used to store the stolen cocaine from the Regini and Fous cases.

No one else could have stolen the cocaine from the Regini and Fous cases. There is no evidence that anyone else in the LINT office possessed the cocaine from both cases after it was left with Meyers. When the counterfeit cocaine was found in the LINT safe, it was found in envelopes that were directly tied to Meyers, through the “For Prints” envelope left with Meyers and the “Fous and Lara” envelope bearing his own handwriting. Access to the safe was quite limited. Meyers’ use of box # 130, his repeated false statements regarding the box, and his offer to sell drugs to Cal Canon are more than bizarre coincidences.

These occurrences, when viewed in their entirety, show beyond a reasonable doubt that Meyers took the cocaine from the Regini and Fous arrests and substituted the counterfeit substance. The large amount and high value of this cocaine, and Meyers’ offer to sell “powder” to Canon show that Meyers intended to distribute the cocaine. Thus the evidence shows beyond a reasonable doubt that the defendant possessed approximately seventeen ounces of cocaine — the Regini cocaine — with intent to distribute. The evidence also shows beyond a reasonable doubt that the defendant possessed approximately nine ounces of cocaine — the Fous cocaine — with intent to distribute. Accordingly, I find the defendant guilty of two counts of possession of cocaine with intent to distribute.

The evidence does not show beyond a reasonable doubt that Meyers illegally possessed the marijuana, and I find him not guilty of Count 4.

Neither does the evidence show beyond a reasonable doubt that Meyers conspired with Belair to distribute the stolen cocaine, and I find him not guilty of Count 1.

This opinion shall constitute findings of fact and conclusions of law pursuant to Fed.R.Crim.P. 23(c).

ORDER

ON MOTION FOR NEW TRIAL

On October 29, 1984, defendant Meyers moved for a new trial. Pursuant to Fed.R.Crim.P. 33, I may grant the motion if it would be in the “interest of justice” to do so. I find that this would not be in the interest of justice and DENY defendant’s motion.

Defendant bases his motion on eight alleged errors in the court’s opinion in this ease. Only one of the alleged errors merits discussion.

My opinion indicates that Meyers took the nondrug evidence in the Fous case from the OSP lab to the Springfield evidence facility. This is incorrect. Officer Cope testified that he took the nondrug evidence to the Springfield facility on July 5, 1982, several days after LINT had disbanded.

The error is insignificant. Meyers headed the Fous investigation. He was also Cope’s supervisor, and was aware that Cope had taken nondrug evidence stored in the LINT office to the Springfield evidence facility. In the last report he filed as LINT Coordinator, Meyers stated:

The cocaine and marijuana seized [in the Fous case] were taken to the Oregon State Police Crime Detection Laboratory for analysis. The cocaine and marijuana were then lodged in the LINT office pending disposition of this case and the non-controlled substance items were lodged in the Springfield Police Department Property Locker pending disposition of this case.

Defendant’s Exhibit “C” at 6-7. In an earlier discussion with Cope, Meyers had also agreed that the drugs seized in the Fous ease and the other evidence in the Vanish box should be taken from the OSP lab and stored in the Springfield facility. (Tr. at 194.)

Meyers chose not to take the Vanish box from the OSP lab to the Springfield evidence facility, which was only a short distance from Eugene. Instead, he took the box to the abandoned LINT offices, where according to his story he broke open the box, retrieved the cocaine from the assortment of other exhibits, placed the cocaine in the safe, and presumably put the marijuana in a cabinet in the LINT office. I cannot conclude that an officer of Meyers’ experience and ability would take this course of action. The evidence shows beyond a reasonable doubt that Meyers is guilty of Counts 2 and 3.

My opinion is amended as follows. On page 9, delete lines 21-24, and replace with the following:

facility. Instead, he stated that he took the Vanish box to the abandoned LINT offices, where he unsealed the box, retrieved the cocaine and placed it in the LINT safe, and placed the box in a cabinet in the office.

On page 16, delete lines 19-20, and replace with the following:

from the OSP lab, and took the box to the abandoned LINT offices rather than to the secured evidence facility in Springfield. I

IT IS SO ORDERED.