text:
    William C. BUTLER v. DEPARTMENT OF THE NAVY.
    Civ. A. No. N-82-3541.
    United States District Court, D. Maryland.
    Oct. 19, 1984.

      E. Nicholson Gault, Jr., and Fairbanks & Gault, Baltimore, Md., for plaintiff.
    J. Frederick Motz, U.S. Atty., D. Md., and Robert B. Green, Asst. U.S. Atty., Baltimore, Md., for defendant.
   NORTHROP, Senior District Judge.

This cause came before the Court for non-jury trial on October 16, 1984. The complaint filed herein charges the Department of the Navy with violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., 29 C.F.R. § 1613.703 et seq. by discrimination against the handicapped, violation of Title VII by discrimination based on race and age, and violations of Fifth Amendment due process.

The plaintiff, William C. Butler, is a forty-two year old black male. He is a veteran and was honorably discharged from the U.S. Army. He has on record with the Veterans Administration, effective November 2, 1976, a 30% service connected disability. He was employed by the National Naval Medical Center as a warehouse worker from December 8, 1980 until February 6, 1981. His preferred status, as listed on the Federal Register, as a veteran assisted him in getting the job. He entered employment on probationary worker status. He was terminated February 6, 1981. The Law to be Applied

Before the court are essentially three claims: discriminatory discharge based on race, age or handicap, and violations of Fifth Amendment procedural due process and the Rehabilitation Act by denying to plaintiff the benefit of defendant’s regulations governing the employment and termination of employees like plaintiff. The Court will address the discharge issue first.

UNLAWFUL DISCHARGE

Before determining whether there has been an unlawful discharge, the Court must note that the United States is permitted great discretion in deciding whether to retain, advance or terminate a probationary employee. 5 U.S.C. § 7501 et seq.; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Casey v. Roudebush, 395 F.Supp. 60 (D.Md.1975).

The United States may not, of course, dismiss any employee, regardless of status, for impermissible reasons of race, handicap or age. The standards for race, age or handicap discrimination are not identical. For instance, age or handicap may be, in limited situations, a factor in some terminations. 29 U.S.C. § 623(f); Clayton v. Alexander, 29 FEP Cases 727 (M.D.Ala.1981). Race is virtually never a legitimate factor.

The employer has available a basic threshold defense against the discriminatory discharge claims. He may show that he terminated the employee for legitimate reasons unrelated to age, race or handicap. The burden then shifts to the employee to show that these alleged nondiscriminatory reasons were merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Cline v. Roadway Exp., Inc., 689 F.2d 481, 484-86 (4th Cir. 1982); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981); Wright v. National Archives & Records Service, 609 F.2d 702 (4th Cir.1979); Campbell v. U.S. Navy, 567 F.Supp. 356, 357 (D.Md.1983); Taylor v. American Wholesalers, 17 FEP Cases 1586 (D.Md. 1978).

Applying this test to the facts adduced from the evidence and testimony at trial, the Court finds that defendant has carried its burden of demonstrating, by a preponderance of the evidence, that a valid and legitimate reason existed for its removal and failure to reinstate plaintiff. Further, the Court finds that plaintiff has failed to come forward with any degree of credible evidence to establish that the reason for his removal was a mere pretext for discrimination.

The Testimony and Evidence.

The plaintiff, Mr. Butler, is black and 42 years old. The parties dispute whether he is handicapped, but the Court will assume for purposes of the following analysis that he is.

At the outset, I note that no statistical basis for age or race discrimination has been established. There is not a wide discrepancy between the percentages of black or older employees terminated and the percentages of black and older employees in general. (Joint Exhibit No. 1, Tab 22, 23).

The plaintiff had an exceptionally bad attendance record. He was frequently absent, often without excuse. (Joint Exhibit No. 1, Tab 28). Even his excused absences were sometimes doubtfully based. Mr. John Dunmire, one of Mr. Butler’s supervisors, testified that on one occasion Mr. Butler showed up in the middle of a string of absences to pick up his paycheck. Mr. Dunmire offered Mr. Butler the opportunity to work that day, but Mr. Butler refused because he was with his wife. Later Mr. Butler claimed he was “incapacitated” that whole week, including the day he showed up for his check. Mr. Butler also claims he couldn’t make it to work because he often lacked “gas money”; but Mr. Dunmire testified that he offered to pick up Mr. Butler halfway to the job site. Plaintiff did not accept that offer. Mr. Butler was also often late on those occasional days he decided to work. He often failed to give adequate notice of his tardiness or absences. (Joint Exhibit No. 1, Tab 4).

On the job, Mr. Butler’s problems continued. He took unauthorized breaks. (Id.) He did not follow orders. (Id.) In his sworn affidavit, Mr. A1 Price, one of Mr. Butler’s immediate supervisors, relates that on one occasion Mr. Butler even physically threatened him, and told him “he didn’t want to hear anything from me.” This occurred because Mr. Butler had to be given a task he didn’t like after his tardiness forced assignment changes. (Joint Exhibit No. 1, Tab 5). Mr. Butler even testified he didn’t think his supervisor had any right to “dictate” to him. Others also stated in their affidavits that Mr. Butler was a belligerent and insubordinate employee. (Joint Exhibit No. 1, Tab 8, 9). Although only Mr. Dunmire testified that he was aware that Mr. Butler had a service-related disability, neither he nor anyone else testified or stated that they were ever aware of that disability or any disability affecting Mr. Butler’s performance. Mr. Butler himself testified that he never complained of it to anyone. Mr. Butler offered no explanation as to how his disabled foot might have caused his absences, tardiness, insubordination or belligerency.

Against the legitimate reasons for terminating plaintiff, there was a dearth of evidence offered to rebut the defendant’s case. The Court must conclude that Mr. Butler was properly discharged.

VIOLATION OF PROCEDURE FOR TERMINATING AN EMPLOYEE

Count III of plaintiff’s amended complaint alleges violation of due process. As a probationary employee, plaintiff was not due the full procedure a permanent employee receives under 5 U.S.C. § 7501 et seq. Indeed, a probationary employee may be summarily discharged. Jordan v. Bolger, 522 F.Supp. 1197, 1202 (D.Miss.1981); aff'd., 685 F.2d 1384 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983). A probationary employee is due only a letter in advance of discharge consisting of “conclusions as to the inadequacies of his performance or conduct.” No specific instances of inadequacy need be cited. Id. The agency or department may avail the discharged employee of further procedures. The evidence shows plaintiff was afforded all due discharge procedures. (See Joint Exhibit No. 1, Tab 47). Although plaintiff did not technically receive his letter before he was terminated, the letter was prepared and awaiting plaintiff’s receipt should he arrwe at work in advance of termination. (See Joint Exhibit No. 1, Tab 47; Plaintiff’s Exhibit No. 18.) The plaintiff failed to arrive at work the next few days. Finally, as Commander Jones testified and the letter shows, the letter was read to the plaintiff over the phone. The letter was then mailed to plaintiff. Plaintiff received sufficient notice of his discharge.

VIOLATION OF THE DUTY TO REASONABLY ACCOMMODATE THE HANDICAPPED

Plaintiff also alleges that under the Rehabilitation Act the defendant was required to “make reasonable accommodation to the known physical or mental limitations of a qualified handicapped employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program____ Reasonable accommodation may include ... job restructuring, part-time or modified work schedules.” 29 C.F.R. § 1613.704. Unless the government can show accommodation is not reasonably possible, the burden is on the government to suggest reasonable accommodation to the known handicapped employee and not vice versa. Crane v. Lewis, 551 F.Supp. 27 (D.C.D.C. 1982) (emphasis added). Defendant disputes, however, that plaintiff was either handicapped or that his handicap was known. Even if the Court finds, arguendo, that plaintiff is handicapped, and defendant is chargeable with that knowledge, the defendant is still not necessarily liable to the plaintiff for his loss of employment. Nor does the Court necessarily have to find whether defendant “reasonably accommodated” plaintiff pursuant to the regulations.

The Rehabilitation Act and the regulations promulgated to implement it were designed to not only thwart discrimination in the hiring and firing of handicapped individuals, but to affirmatively assist in their career placement and advancement and ameliorate their work conditions through “reasonable accommodation.” Where an employer fails to reasonably accommodate an eligible individual, that individual may have an action against the employer. That action, however, does not always lie merely because the regulations are not followed. An employee is not excused from misconduct or unsatisfactory performance that does not relate to his handicap even where the employer may have failed to reasonably accommodate that handicap. There must be some sufficient connection between the loss of the constitutionally or statutorily protected interest — employee’s job — and the violation of the duty due employee. The Court cannot find any connection in this case.

The Court relies on the same evidence and testimony previously discussed in the discharge section of this opinion. Plaintiff does not show how any of the reasons for his dismissal were caused by a failure to reasonably accommodate his handicap. The Court has held previously that plaintiff was not dismissed because of his handicap. His absenteeism and tardiness were extraordinary. (See, supra, p. 1066). They were not caused by his handicap. He was repeatedly belligerent to others. (See, supra, p. 1066). This was not caused by any recognized handicap. He often did not follow orders, and he at times performed incompetently. The insubordination and incompetency did not result from his handicap. The testimony shows that almost no one knew of plaintiff’s handicap. He failed to inform anyone about it. Nor was it readily apparent to anyone. One must infer that the plaintiff’s handicap had little, if anything,- to do with his poor job performance. The Rehabilitation Act was not designed to protect those who refuse to cooperate with their employers or give more than minimum effort to their jobs. The evidence is overwhelming that the plaintiff was dismissed for legitimate reasons having nothing to do with the alleged failure of the defendant to provide “reasonable accommodation.”

The Court also holds that the applicable regulations were not violated by the defendant. The regulations apply only to a “known” handicap, and require only “reasonable” accommodation. 29 C.F.R. § 1604.704. Even if the mere presence of a disability certification in an employee’s record charges employers with knowledge of his handicap, where a handicap is neither apparent or complained of, the failure to affirmatively accommodate may not be unreasonable.

Nor does the case law say otherwise. Although there is no case exactly on point, in the cases construing the duty of “reasonable accommodation,” the handicapped person came forward with specific evidence of his handicap and its effect on job performance. This initiated the government’s duty to reasonably accommodate the handicapped person. Although the government certainly has a duty to propose or make reasonable accommodations, it cannot be an absolute duty triggered by the mere existence of a handicapped employee. I cannot hold the government’s actions violative of “reasonable accommodation” where there is nothing to indicate the handicap was relevant to plaintiff's actual job performance, and, thus, nothing to indicate plaintiff was not, indeed, “reasonably accommodated.” If employees are not required to be affirmatively candid about the relevant job-related specifics of their handicap, employers may be unfairly burdened with individuals with “hidden” physical or mental disabilities who then invoke protection of the Rehabilitation Act to avoid termination.

As stated above, the plaintiff’s handicap was not obvious. It did not become apparent to anyone as affecting plaintiff’s job performance. Plaintiff did not complain to anyone about the handicap, nor were the reasons for terminating the plaintiff related to his handicap. The Court must conclude that the defendant acted properly in all respects in discharging plaintiff.

A separate Order will be issued confirming the ruling made herein.

ORDER

In accordance with the foregoing Memorandum and for the reasons stated therein, and in accordance with the testimony presented in open court on October 16, 1984 before the undersigned, IT IS, this 19th day of October, 1984, by the United States District Court for the District of Maryland, ORDERED:

1. That judgment BE, and the same hereby IS, ENTERED in favor of the defendant;

2. That the Clerk of Court enter this case as CLOSED on this Court’s docket; and

3. That the Clerk of Court mail copies of this Order and the foregoing Memorandum to counsel for the parties in this case.


source: Caselaw Access Project

author: FEIKENS, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Charles F. COLLINS, Defendant.
    No. 83-60664.
    United States District Court, E.D. Michigan, S.D.
    Oct. 19, 1984.

      John L. Newcomer, Detroit Strike Force, Detroit, Mich., for plaintiff.
    Bernard P. Paige, Birmingham, Mich., for defendant.
   MEMORANDUM OPINION

FEIKENS, Chief Judge.

On April 3, 1984, a jury found Charles F. Collins guilty on three counts of making false declarations to a grand jury. Through new counsel, defendant brought a motion for a new trial on the grounds that trial counsel rendered ineffective representation amounting to a denial of the sixth amendment right to “Assistance of Counsel.” I heard and denied this motion on October 5, 1984. This opinion supplements that ruling.

I. BACKGROUND

Defendant, Charles F. Collins, was the Executive Secretary and Executive Director of the Michigan Conference of Teamsters Welfare Fund (Fund) from August, 1979, through August, 1983. The Fund awarded a pre-paid capitation dental service contract to Delaware Professional Services, Inc. (Delaware) in 1979. In 1983, a United States Grand Jury was investigating the award of this contract and the role of defendant, Allen Dorfman, and Sol Schwartz, if any, in assisting Edward Brown (Delaware’s President) in presenting Delaware’s plan to the Trustees of the Fund (Trustees). In connection with that investigation, defendant testified before the Grand Jury in June, 1983.

The three-count indictment alleges that defendant knowingly testified falsely before the Grand Jury concerning the relationship between Brown, Dorfman and Schwartz, and their alleged attempt to influence the Trustees to award a dental contract to Delaware. Each count of the indictment refers to a question and answer exchange between defendant and the U.S. Attorney. In each case, defendant’s answers were substantially the same: “I don’t believe so,” “Not that I recall,” “Not that I’m aware of,” etc.

In a four-day trial, the Government offered a substantial amount of evidence indicating that, despite defendant’s testimony, he did have knowledge of the events and relationships about which he was questioned before the Grand Jury. This evidence included 15 tape-recorded telephone conversations in which the various participants were defendant, Brown, Dorfman and Schwartz. These conversations flatly contradicted defendant’s Grand Jury testimony. The Government also offered evidence from which the jury could infer that defendant knowingly made false declarations before the Grand Jury. The thrust of defendant’s defense was that due to an alcohol-related loss of memory, his testimony before the Grand Jury was not knowingly false. The jury apparently rejected this defense and, in light of the overwhelming evidence to support the Government’s case, found defendant guilty on all three counts.

Defendant argues that his trial counsel, Ernest Levin, failed to provide the effective assistance of counsel guaranteed by the sixth amendment. Specifically, defendant argues that trial counsel’s representation was ineffective due to counsel’s failures to: 1) object in a timely manner to the admission into evidence of certain tape recordings; 2) interview or contact three witnesses identified to him who would testify on defendant’s behalf; 3) read and analyze properly the Government’s trial memorandum; and 4) investigate, develop and present effectively the defense of alcohol-related loss of memory. While I believe that there may have been some deficiencies in Levin’s representation, I find that defendant has failed to establish that he was deprived the “Assistance of Counsel” guaranteed by the sixth amendment.

II. DISCUSSION

The sixth amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” The United States Supreme Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). A defendant may be deprived of this right where his attorney is incompetent, and fails to render “adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). The Supreme Court recently considered claims of “actual ineffectiveness” of counsel, and articulated a two-part test for determining when counsel’s assistance is so defective as to deprive the defendant of the effective assistance of counsel.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See also United States v. Lippert, 740 F.2d 457, 459 (6th Cir.1984). The guiding principle in analyzing claims of actual ineffectiveness of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 104 S.Ct. at 2064. Here, defendant failed to establish that he was deprived a fair trial which produced a just result.

The first asserted error of trial counsel was his failure to enter a timely hearsay objection to the Government’s wire-tap evidence. While it is true that counsel did not object to the tapes until several of them had been played to the jury, I find that defendant suffered no prejudice as a result. When the objection was raised, I carefully considered it in light of United States v. Enright, 579 F.2d 980 (6th Cir.1978), and ruled that there was no merit to the objection. I made a preliminary finding that the recorded conversations were held pursuant to a joint venture or conspiracy, and that therefore, the tapes were admissible under the co-conspirator exception to the hearsay rule, Fed.Rule Evid. 801(d)(2)(E) (Tr. 444-46). Since my ruling would have been the same whenever the objection was raised, I find that defendant was not prejudiced by counsel’s tardy objection.

The three remaining asserted errors of trial counsel are related to each other, and concern the failure to investigate and present effectively the defense of an alcohol-related loss of memory. First, Levin never contacted Sharon Hooper (defendant’s secretary) and Gerald Wiedyk (defendant’s assistant) even though defendant informed him of these witnesses. They would have testified that during the period in which defendant testified before the Grand Jury, he was under a great deal of stress, and was often forgetful and disoriented. Second, Levin failed to research and analyze adequately the Government’s trial memorandum. Had he done so, defendant argues, Levin would have tried harder to rebut the Government’s state of mind evidence, and prove that defendant honestly could not remember the events he was asked about. Third, Levin did not adequately investigate and present to the jury the defense of an alcohol-related loss of memory. Specifically, Levin sought no medical advice on the effects of alcohol on the brain, and failed to present expert medical testimony to the jury.

While trial counsel’s conduct may have been professionally unreasonable, that fact alone does not amount to a sixth amendment violation. Under Strickland, defendant must also show that counsel’s errors prejudiced his rights: “Even if a defendant shows that particular errors of counsel were unreasonable ... the defendant must show that they actually had an adverse effect on the defense.” Strickland, 104 S.Ct. at 2067 (emphasis added). In order to show that counsel’s errors actually prejudiced defendant, he “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 104 S.Ct. at 2068. Here, no such showing was made.

First, defendant failed to make any showing, by way of affidavit or otherwise, as to the availability and substance of any further testimony. This is particularly troubling with respect to the proposed medical evidence concerning alcohol’s effect on the memory. Defendant has left me to speculate as to whether such evidence is available, and if so, whether it would concern alcohol’s effect generally, its effect on defendant, its effect on defendant when he testified before the Grand Jury, or something entirely different. Without a more specific showing of what further evidence would have been presented, it would be much too speculative to attempt to determine the effect that evidence could have on a jury. As I read Strickland, I may not engage in this sort of speculation. Accordingly, I find that defendant has failed to carry his affirmative burden of proving that he was prejudiced by counsel’s errors. See Strickland, 104 S.Ct. at 2067 (“actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”).

Second, even if I were to engage in such speculation, I still would be unable to find that defendant was entitled to a new trial. This record provides no reasonable basis for concluding that counsel’s errors were so serious and prejudicial as to undermine confidence in the jury’s guilty verdict. The Government offered abundant evidence establishing guilt. The wire-tap evidence unequivocally contradicts defendant’s Grand Jury testimony, and indeed, defendant does not contest that his testimony was false. The Government also proved beyond a reasonable doubt that defendant knowingly testified falsely before the Grand Jury. There was ample evidence of defendant’s extensive participation in a plan to insure that Delaware obtained the Fund’s dental contract. Such conduct is not likely to be forgotten, even by an alcohol-tarnished memory. Moreover, the Government offered the testimony of Lesa Young, which also proved that the relationship between defendant and the other parties involved in the award of the contract was sufficiently developed that defendant probably did not forget the relevant events and relationships. In light of this convincing evidence, the jury rejected the claim of an alcohol-related loss of memory. Perhaps most important, the jury heard defendant’s testimony, observed his demeanor and disbelieved his story. In light of the overwhelming evidence tending to prove guilt, I am unable to conclude that, absent counsel’s errors, there is a reasonable probability that the outcome of this trial would have been different. See Strickland, 104 S.Ct. at 2069 (“a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”).

III. CONCLUSION

I find that defendant has failed to establish that he was deprived the effective assistance of counsel within the meaning of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel’s failure to enter a timely hearsay objection to certain wire-tap recordings did not prejudice defendant because I ultimately ruled that objection was without merit. My decision would have been the same whenever the objection was raised. I similarly find that defendant was not prejudiced by counsel’s alleged errors concerning the defense of an alcohol-related loss of memory. Strickland requires that I decline defendant’s invitation to engage in excessive speculation concerning the effect of hypothetical evidence on the jury. Moreover, in light of the overwhelming evidence establishing guilt, I am unable to conclude that there is a reasonable probability that but for counsel’s unprofessional errors, the result of this trial would have been different. I find that counsel’s conduct did not so undermine the proper functioning of the adversarial process as to render the verdict unreliable. Accordingly, defendant’s motion for a new trial shall be, and hereby is, denied.

      . Claims of actual ineffectiveness of counsel rest on an attorney’s incompetence and unprofessional errors and omissions. Deprivation of the right to effective assistance of counsel will also be found where the Government interferes with counsel’s ability to exercise his professional judgment, see Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (government prohibiting consultation between an attorney and his client during an overnight recess), or where an attorney is unable to render adequate legal assistance, see Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (attorney conflict of interest). See generally Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

      . More precisely, Fed.Rule Evid. 801(d)(2)(E) provides that "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy” is not hearsay.

      . Defendant also argues that Edward Brown would have testified on defendant’s behalf had he been requested to do so. See Affidavit of Edward Brown. I do not find this affidavit credible, and moreover, even if Mr. Levin failed to contact Brown, this error did not prejudice defendant. By letter dated February 28, 1984, Brown indicated to the Government, through counsel, that if called to testify in this case, Brown would invoke his fifth amendment right against self-incrimination. Accordingly, since Brown would not have testified in any event, defendant was not prejudiced by counsel’s failure to contact Brown.

      . I rest my findings on the second prong of the Strickland test; that is, I find only that the asserted errors of counsel did not prejudice defendant. I have assumed without deciding, for purposes of this motion, that counsel’s conduct was deficient. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 104 S.Ct. at 2070. Nonetheless, there are aspects of trial counsel’s conduct that trouble me. I take this opportunity to remind attorneys that they have an ethical obligation to represent their clients zealously within the bounds of the law.


author: ANNA DIGGS TAYLOR, District Judge.

text:
    Sonia JOHNSON, Richard Walton, Don Broersma, Rebecca C. Clark, Benita Mullins, and Richard Wunsch, Plaintiffs, v. Richard H. AUSTIN, As He Is Secretary of State; and Michael Pyne, Rae Weaver, Stephen C. Bransdorfer, and Elizabeth Jackson, As They Are Members of the Board of Canvassers, Defendants.
    Civ. No. 84CV3950DT.
    United States District Court, E.D. Michigan, S.D.
    Oct. 19, 1984.
    Donald B. Greenspon, George B. Washington, Detroit, Mich., for plaintiffs.
    Richard P. Gartner, Asst. Atty. Gen., Lansing, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

This is a civil action, brought pursuant to 42 U.S.C. § 1983 (1981), by which plaintiffs Sonia Johnson and Richard Walton, independent candidates for president and vice president of the United States respectively, along with other plaintiffs, seek an injunctive order or summary judgment of this court directing the defendant officers of the State of Michigan to place their names on the November 6, 1984 general election ballot, and declaring the Michigan general election statutory scheme unconstitutional as applied to independent candidates. There being no dispute as to any of the material facts, this matter is properly before the court on plaintiff’s motion for preliminary injunction relief as well as for summary judgment. This court has jurisdiction of the instant cause under the provisions of 28 U.S.C. § 1331 (1983). Upon review of the submitted briefs of counsel, after hearing oral arguments and based upon the following findings of fact and conclusions of law, this court must find in favor of plaintiffs and enter a summary judgment and injunctive order directing that the defendants herein place the names of candidates Johnson and Walton on the November 6, 1984 Michigan general election ballot. The court further finds that the Michigan statutory scheme as applied to independent candidates is indeed unconstitutional.

FINDINGS OF FACT

Plaintiffs, Sonia Johnson and Richard Walton, as aforestated, are independent candidates for the offices of president and vice president of the United States respectively. Plaintiffs Benita Mullins and Richard Wunsch are residents and citizens of Michigan who seek to be designated electors pledged to vote for Sonia Johnson for president and Richard Walton for vice president of the United States. Plaintiffs, Don Broersma and Rebecca Clark are residents and citizens of Michigan, duly registered to vote in that state, who seek to cast ballots in November for Johnson and Walton’s respective candidacies.

Defendant Richard H. Austin is the Secretary for the state of Michigan. Defendants Michael Pyne, Rae Weaver, Stephen Bransdorfer and Elizabeth Jackson are members of the Michigan State Board of Canvassers. Defendant Austin is the chief election officer of the state of Michigan, and together with the other defendants is charged with supervision of certification of candidates for the offices of president and vice president of the United States and certification of the ballot to be placed before the Michigan electorate November 6, 1984.

Plaintiffs Johnson and Walton meet the constitutional requirements for the offices they seek, as they are both natural-born citizens of the United States, over the age of 35, residents of the United States for more than fourteen years and qualified electors of the states of Virginia and Rhode Island, respectively. U.S. Const., art. II, § 1, cl. 5. These political aspirants are serious candidates with a significant amount of nation-wide support. Since announcing her candidacy for president of the United States, Sonia Johnson has actively campaigned in 32 states. She has been certified to receive federal matching funds by the Federal Election Commission as a result of campaign contributions received in over 20 states. Vice-presidential candidate Richard Walton is a well-known author who has published several well-known books as well as articles in magazines and papers of broad national circulation on foreign affairs and political issues.

The Citizens Party, with which Johnson and Walton are affiliated, does not now have ballot status in Michigan and is not now seeking such status. There has been no attempt to field a slate of candidates in Michigan or to establish the Citizens Party as a distinct political party under Michigan law.

Independent candidates Johnson and Walton are already on the general election ballot in six states and expect to obtain ballot access in at least fourteen other states prior to the November 6, 1984 general election. They plan to conduct a vigorous campaign throughout the state of Michigan.

Presently in the state of Michigan there is no statutory means for an independent candidate to secure a place on the November ballot. The pertinent Michigan statute provides as follows:

The names of a candidate of a new political party shall not be printed upon the official ballots of an election unless the chairman and secretary of the state central committee of the party filed with secretary of state, at least three months before the primary election, a certificate signed by them bearing the name of the party and unless accompanying the certificate there was filed petitions bearing the signatures of registered and qualified electors equal to not less than one percent nor more than four percent of the number of votes, the successful candidate for secretary of state received at the last election in which a secretary of state was elected____

M.C.L.A. § 168.685(1) (1967), as amended by 1976 P.A. 94. Thus, unless a candidate is a member of a party, and that party has complied with the Michigan state law regarding ballot access, such candidate may not have his or her name put before the Michigan electorate.

On August 10, 1984, plaintiffs Johnson and Walton filed with the office of the defendant secretary of state a declaration of candidacy, accompanied by an affidavit of support signed by Susan Horwitz, their campaign manager. The office of the secretary of state has never responded to the Johnson-Walton Campaign Committee regarding its request to have these candidates placed on the 1984 election ballot.

CONCLUSIONS OF LAW

First, the court must note that it is well settled that state laws which preclude independent candidates from appearing on the ballot of that state are unconstitutional, whether the state expressly prohibits such candidates from appearing on the ballot or simply refuses to provide them with any procedures regarding ballot access. McCarthy v. Briscoe, 429 U.S. 1317, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976, Powell, Circuit Justice); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); LaRouche v. Austin, Docket No. 84-1616 (6th Cir. 8/31/84); Goldman-Frankie v. Austin, 727 F.2d 603 (6th Cir.1984). As expressed by the Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964):

The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.

377 U.S. at 555, 84 S.Ct. at 1378.

Eegardless of the potential for success of independent candidates, their very existence contributes to the extremely important work of issue identification and policy or platform development by our major parties or candidates. State laws which prevent the presentation of such candidates to the voting citizenry do injustice to the free exchange of ideas upon which our nation is built, and constitute a form of censorship which is forbidden in our society.

The defendants herein admit that M.C.L.A. § 168.685(1) (1967), as amended by 1976 P.A. 94, makes no provision for access of independent candidates to the general election ballot for November 6, 1984. The Michigan legislature has been on notice for years that this lack of statutory procedure is constitutionally impermissible. The former statute for securing access to the general election ballot was declared unconstitutional because of its failure to provide access for independents. That procedure had no requirement of party qualification vote in the August primary. McCarthy v. Austin, 423 F.Supp. 990 (W.D.Mich.1976) (3 judge court). The Michigan legislature was officially and explicitly advised that the new Public Act 94 procedures were also unconstitutional, in that they, too, provided no means for access to the ballot by independent candidates.

Michigan’s current election law has also been declared unconstitutional in other cases before this bench, for its failure to provide means for independents to secure access to the ballots. Hall v. Austin, 495 F.Supp. 782 (E.D.Mich.1980). The court there ordered as a remedy that the names of Gus Hall and Angela Davis be placed on the November 4, 1980 general election ballot for the offices of president and vice president of the United States, respectively. Id.

The Supreme Court has ruled that states cannot effectively preclude opposition parties and candidates from a position on the ballot and that “even where operative, write-in votes are no substitutes for a place on the ballot.” Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Supreme Court held that a state could not, as Michigan does, require a candidate to form a new political party in order to appear on the ballot. Storer concluded:

[W]e perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the state is free to assure itself that a candidate is a serious contender, truly independent, and with a satisfactory level of community support.

415 U.S. at 746, 94 S.Ct. at 1287.

Since the Storer opinion, the Michigan legislature has been free for ten years to enact legislation designed to ascertain whether independent candidates were serious, truly independent and had a significant modicum of community support. Michigan lawmakers have not, however, enacted reasonable restrictions to the ballot access of independent candidates, but have instead continued to completely bar them from appearing on the ballot. The court cannot countenance such a deliberate preclusion.

Further, since Storer, these candidates may not be forced to form a political party, or to certify a party currently existing according to Michigan law, in order to put their candidacies before the voters of this state. Such an implicit mandate is constitutionally infirm, and must be prohibited.

Storer does not endow this court with the responsibility or authority to develop qualifying restrictions to ballot access where the state legislature has failed to speak on such requirements, particularly where, as here, the legislature had been on notice for many years that its statutory provision regarding ballot access were inadequate and unlawful. Even, however, were this court to consider the factors set forth in Storer regarding independent candidates in the absence of state regulatory guidance, it would have to find that the plaintiff candidates herein qualify for the remedy which they seek, which is to be placed on the November ballot.

The plaintiffs here do not suggest that every independent candidate must be automatically afforded a slot on the ballot, once a court has found that state laws unconstitutionally exclude independent candidates. Rather, they submit that they, given their 1) serious commitment to their candidacies, political convictions and philosophies, 2) launching of a nationwide campaign, which has already taken them to 32 states and placed them on the ballots of six, and 3) certification to receive federal primary matching funds by the Federal Election Commission, should be placed on the ballot. While plaintiffs admit that they are affiliated with the Citizens Party, the court notes that this party does not now have a ballot status in this state and is not seeking such status. In Hall v. Austin, 495 F.Supp. 782 (E.D.Mich.1980), the court faced a similar problem in that plaintiffs Gus Hall and Angela Davis were admittedly associated with the Communist Party. The court there cited Storer in holding implicitly that a candidate may be characterized as independent despite his significant affiliation with a named party. 415 U.S. at 727-728, 94 S.Ct. at 1277-1278.

The court must indicate that the placement of these plaintiffs’ names on the Michigan ballot will not burden the legitimate public interest in regulating the number of candidates on the ballot, and avoidance of frivolous candidacies. Plaintiffs’ motion was not untimely brought, and defendants herein admit that the relief plaintiffs’ seek, if ordered by this court, can be provided without undue restraint upon the administration of our November Michigan election.

The court takes note of the Michigan legislature’s continuing refusal to address the unconstitutional aspects of Michigan election laws, and urges Michigan’s elected representatives to speak, and to speak soon, to this vital process of a democratic society.

For the foregoing reasons, plaintiffs’ motion for summary judgment is granted, and defendants are directed and enjoined to place the names of Sonia Johnson and Richard Walton on the November 6, 1984 general election ballot as candidates for president and vice president of the United States, respectively.

IT IS SO ORDERED.


author: JAMES E. DOYLE, District Judge.

text:
    LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; Red Cliff Band of Lake Superior Chippewa Indians; Sokaogon Chippewa Indian Community, Mole Lake Band of Wisconsin; St. Croix Chippewa Indians of Wisconsin; Bad River Band of the Lake Superior Chippewa Indians; Lac Du Flambeau Band of Lake Superior Chippewa Indians, Plaintiffs, v. STATE OF WISCONSIN, Wisconsin Natural Resources Board, Carroll D. Besadny, James Huntoon, and George Meyer, Defendants.
    No. 74-C-313.
    United States District Court, W.D. Wisconsin.
    Oct. 19, 1984.

      Howard Bichler, Wisconsin Judicare, Wausau, Wis., for St. Croix.
    James Jannetta, Getzin & Jannetta, Lac du Flambeau, Wis., for Lac du Flambeaus.
    Kathryn L. Tierney, Tribal Atty., Hayward, Wis., for Lac Courte Oreilles.
    Earl Charleton, Charleton Law Firm, Milwaukee, Wis., for Mole Lake Band.
    Milton Rosenberg, Bell Law Offices, Madison, Wis., for Red Cliff Band.
    Candy L. Jackson, Odanah, Wis., for Bad River Band.
    Maureen McGlynn, Mary Bowman, Asst. Attys. Gen., Madison, Wis., for defendants.
    Mark Hazelbaker, Legal Counsel, Wis. Counties Assn., Madison, Wis., for amicus curiae.
   OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Defendant State of Wisconsin invokes 11th amendment immunity as an affirmative defense to all claims by plaintiffs. The other defendants contend they share in the State’s immunity. Plaintiffs seek declaratory and injunctive relief, and monetary damages for past infringement of their rights. Although defendants have raised a variety of affirmative- defenses, I deal here only with whether 11th amendment immunity is available.

I.

A state can waive its 11th amendment immunity. However, because of the gravity of the constitutional immunity afforded states, courts “will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) (cite omitted). Notwithstanding possible indications to the contrary in its pleadings or briefs, the State has not waived any of its 11th amendment immunity. The Assistant Attorney General noted at hearing that Wisconsin law does not authorize the Attorney General to waive the state’s immunity in the course of litigation. Wis.Stat. 165.25. See Ford Motor Co. v. Dept. of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). I understand plaintiffs not to contend that during the course of this litigation, the State has consented explicitly or implicitly to suit; rather, they argue the State’s 11th amendment immunity has been abrogated by statute.

II.

It is settled that Congress can abrogate states’ immunity through legislation that clearly provides a federal forum for claims against states. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). States are considered to have consented to abrogation by Congress in the exercise of its delegated constitutional powers. Jennings v. Illinois Office of Education, 589 F.2d 935 (7th Cir. 1979); Oneida Indian Nation of N.Y. v. State of N.Y., 520 F.Supp. 1278 (N.D.N.Y. 1981). However, a party claiming statutory abrogation bears a heavy burden. In Quern, infra, the Court stressed that to abrogate states’ 11th amendment immunity a federal statute must contain explicit language evincing Congress’ intent to override the 11th amendment, or legislative history must show Congress focused directly on the question and intended to abrogate the 11th amendment. On occasion the Court has found abrogation: Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 94 L.Ed.2d 614 (1976) (Title VII); Parden v. Terminal Railroad Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) (Federal Employees Liability Act). More often, it has not: Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (42 U.S.C. § 1983); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (Fair Labor Standards Act).

The issue is whether 28 U.S.C. § 1362 constitutes abrogation. It provides: “district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe” on federal law grounds.

This language does not explicitly abrogate immunity of states to actions commenced by Indian tribes in federal courts, and the state argues with some force that the legislative history of § 1362 shows no clear intent to abrogate. The brief legislative history of § 1362 shows a primary objective of the bill was to free Indian tribes from the then existing $10,000 amount-in-controversy requirement of 28 U.S.C. § 1331. The focus is on jurisdictional amount. For example, the House report states:

In providing for original jurisdiction of all civil actions of this type, the bill has the effect of removing the $10,000 jurisdictional requirement which presently applies as to such actions [under § 1331]. The district courts now have jurisdiction over cases presenting Federal questions brought by the tribes when the amount in dispute exceeds $10,000. Enactment of this bill would merely authorize the additional jurisdiction of the court over those cases where the tribes are not able to establish that the amount in controversy exceeds that amount.

H.R.Rep. No. 2040, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad. News 3145, 3146. Later, the report states:

This bill would therefore authorize the addition of only those cases, which the Justice Department stated would probably not be large in number, where the tribes have not been able to show that the amount in controversy exceeds $10,-000, and the Government for some reason does not want to prosecute the case in behalf of the tribe.

Id. at 3147. The specific impetus for the bill seems to have been a case in which a tribal suit had been dismissed for failure to meet the jurisdictional amount requirement. Yoder v. Assinibone and Sioux Tribes, 339 F.2d 360 (9th Cir.1964).

In Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976), however, the Court attributed to Congress a far broader purpose. Referring to statements in the legislative history of § 1362, the Court stated: “it would appear that Congress contemplated that a tribe’s access to federal court ... would be at least in some respects as broad as that of the United States suing as the tribe’s trustee.” Id. at 473, 96 S.Ct. at 1641. Moe embodied actions by an Indian tribe and some of its members to enjoin enforcement of certain Montana tax laws. The question was whether the actions were barred by 28 U.S.C. § 1341, which provides that federal district courts may not enjoin enforcement of state tax laws where adequate state court remedies exist. The Court observed that the actions are of the kind which could have been brought by the United States as plaintiff, on behalf of the tribe, 25 U.S.C. § 175, and that the United States is not barred by § 1341, citing Department of Employment v. United States, 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966). It concluded that because the United States is not barred by § 1341, the tribe is not barred. Thus, eligibility for injunctive relief against state taxes despite the statutory bar of § 1341 was held to be among the “some respects” in which access to the federal courts by Indian tribes is as “broad” as access by the United States.

The 11th amendment does not bar the United States from suing a state in federal court. The key issue here is whether eligibility for judicial relief against a state despite the constitutional bar of the 11th amendment is among the respects in which access to the federal courts by tribes is as broad as access by the United States. Presumably, a constitutional limit should not be overridden as easily as a statutory privilege. However, § 1341 is no ordinary statute; it is a codification of a substantial common law privilege given to states. The importance of the protection afforded states by § 1341 is shown by the fact that its bar, like that of the 11th amendment, may be raised at any time by a party or the court. Illinois Cent. R. Co. v. Howlett, 525 F.2d 178 (7th Cir.1975).

The cases since Moe are one-sided in their conclusion that § 1362 did abrogate the states’ 11th amendment immunity. In Oneida Indian Nation of N.Y. v. State of N.Y., 520 F.Supp. 1278 (N.D.N.Y.1981), the district court concluded there was sufficiently clear indication that Congress intended § 1362 to override the 11th amendment. The court relied on the Moe rationale: since the 11th amendment would have been no bar to suit by the United States as the tribe’s trustee, it does not bar a suit brought directly by the tribe under § 1362. The court also emphasized the quasi-sovereign status of Indian tribes, particularly as it relates to claims involving the protection of tribal lands. It said this status justifies the imposition of a lesser standard for finding Congressional abrogation of the 11th amendment than that articulated in Quern v. Jordan, supra. Id. at 1306-07. The Second Circuit affirmed the district court’s holding on 11th amendment immunity. Oneida Indian Nation of N.Y. v. State of N.Y., 691 F.2d 1070 (2d Cir.1982). Other decisions have followed suit. Oneida Indian Nation of New York v. Oneida County, 719 F.2d 525 (2d Cir.1983); Cayuga Indian Nation of New York v. Cuomo, 565 F.Supp. 1297 (N.D.N.Y.1983); Charrier v. Bell, 547 F.Supp. 580 (M.D.La.1982); Confederated Tribes of Colville v. State of Wash., 446 F.Supp. 1339 (E.D.Wash.1978), rev’d in part on other grounds, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980).

I am persuaded that in enacting 28 U.S.C. § 1362 Congress abrogated the 11th amendment immunity of the states. Applying the rationale of Moe, I conclude that since notwithstanding the 11th amendment the United States could have sued defendants in this court on behalf of plaintiffs, plaintiffs may do so on their own behalf.

The State contends abrogation of immunity by § 1362, if recognized, should be limited in two ways.

First, it contends there is a significant difference between tribal suits involving land claims and those involving hunting and fishing rights, as here. The State urges that even if § 1362 abrogates its 11th amendment immunity, the statute does so only with respect to tribal land claims. The State notes that all the cases finding abrogation thus far have involved land claims; further, language in the legislative history of § 1362 focuses on land claims. I infer the State’s argument to be that Congress meant to free tribes from the 11th amendment bar only with respect to claims very closely related to their status as Indians, and not to claims commonly pressed by non-Indians as well as Indians. But tribal land claims are by no means the only uniquely Indian legal claims. Treaty claims to enforce traditional hunting and fishing rights are paradigmatically associated with Indian tribes. Moreover, I find nothing in the legislative history of § 1362 to indicate that Congress contemplated any distinction among the subject matters of claims brought by tribes.

I also reject the State’s second suggestion: that § 1362’s abrogation extends only to prospective relief, and not to retroactive monetary relief. The State appears to argue that the gravity of the immunity enjoyed by states under the 11th amendment requires that Congressional abrogation of it be narrowly viewed to minimize the intrusion into state sovereignty. The argument appears to be that injunctive and declaratory relief will sufficiently redress plaintiffs’ grievances and, thus, the state’s immunity from retroactive relief should be preserved. It is true that in cases in which 11th amendment immunity is operative— neither waived by the state nor abrogated by Congress — a fundamental distinction has been drawn between retroactive and prospective relief. See Edelman, supra. However, I perceive no basis — and none has been suggested — for holding that depending on the circumstances of a case a statute may abrogate the 11th amendment only partially. Moreover, if such a distinction is appropriate in some circumstances, I cannot say, presently at least, that plaintiffs’ claims here for monetary damages are so insignificant as to preclude abrogation.

I hold that 28 U.S.C. § 1362 abrogates the 11th amendment, thereby rendering the State of Wisconsin vulnerable to suit for relief of all types sought by plaintiffs. This disposition of the State’s 11th amendment claim may moot certain other of defendants’ affirmative defenses. There is obviously no need to address whether any other defendants share in the State’s immunity. I refrain from passing on any remaining affirmative defenses the defendants may wish to pursue.

ORDER

Defendants’ 11th amendment immunity affirmative defense is stricken. Defendants are free to pursue any of their other affirmative defenses not disposed of by the implications of this ruling.

      . It is not entirely clear whether this limiting theory is advanced only in the context of waiver, discussed in part I of this opinion. I proceed on the assumption it is advanced as to abrogation as well.


author: GENE CARTER, District Judge.

text:
    Roger N. GAGNE and Irene M. Gagne, Plaintiffs, v. CARL BAUER SCHRAUBENFABRICK, GmbH, Defendant, and POWER ANCHOR CORPORATION, Defendant and Third-Party Plaintiff, v. ROBERGE CONSTRUCTION, INC., Third-Party Defendant.
    Civ. No. 82-0134-P.
    United States District Court, D. Maine.
    Oct. 19, 1984.

      George W. Beals, Thomas J. Quinn, Hewes Culley Feehan & Beals, Portland, Maine, David R. Ordway, Ordway & Delicata, Biddeford, Maine, for plaintiffs.
    John N. Kelly, Graydon G. Stevens, Leland N. Chisholm, Kelly, Remmel & Zimmerman, Portland, Maine, for defendant.
    Frederick C. Moore, Robinson & Kriger, Portland, Maine, for Roberge Const.
   MEMORANDUM OF DECISION AND ORDER ON DEFENDANT POWER ANCHOR CORPORATION’S MOTION FOR RELIEF FROM JUDGMENT

GENE CARTER, District Judge.

I.

This case comes before the Court on the motion of Power Anchor Corporation as Third-Party Plaintiff against Third-Party Defendant Roberge Construction, Inc. for relief pursuant to Fed.R.Civ.P. 60(b)(6) from a judgment and order of this Court granting Power Anchor’s Motion for Summary Judgment. On April 2, 1984, Roberge filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. On April 24, 1984, this motion was granted by the endorsement of the Clerk, acting for the Court: “No objection having been filed, motion granted per Local Rule 19(b).” (Emphasis in original.)

On April 26, 1984, Power Anchor filed a Motion for Relief from Judgment pursuant to Rule 60(b). The Court denied the motion in its Order of June 7, 1984. Gagne v. Carl Bauer Schraubenfabrick, 101 F.R.D. 777 (D.Me.1984).

Power Anchor filed a Second Motion for Relief from Judgment on June 29, 1984. In this motion, Power Anchor seeks relief under subsection (6) of Rule 60(b). The Court has determined that the standards of Rule 60(b) shall not be applied to this motion because the order granting summary judgment on April 24, 1984, is not a final judgment within the meaning of the Federal Rules of Civil Procedure.

Roberge brought its Motion for Summary Judgment as Third-Party Defendant. The Court’s Order of April 24, 1984, adjudicated only the claim of Power Anchor as Third-Party Plaintiff against Roberge as Third-Party Defendant. The claims of the Plaintiffs against the two Defendants were not adjudicated on this motion.

Fed.R.Civ.P. 54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) Here, the Court made no “express determination that there is no just reason for delay” nor “an express direction for the entry of judgment.” Rule 54(b) dictates, therefore, that the order granting summary judgment is not a final judgment because the rights of fewer than all the parties were adjudicated. Pahlavi v. Palandjian, 744 F.2d 902, (1st Cir.1984). The rule expressly provides that such an order “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” The order is merely interlocutory and not a final judgment. As such, its revision is not subject to the restrictive provisions of Rule 60(b), which applies by its terms only to “final ” judgments, orders or proceedings. The Court retains plenary power to afford such relief as justice requires. Vaughn v. Regents of University of California, 504 F.Supp. 1349, 1351 (E.D.Cal.1981); 7 Moore & Lucas, Moore’s Federal Practice, § 60.20 (1982).

II.

Power Anchor argues that the Court’s interpretation of Local Rule 19(c) as applied to a motion for summary judgment conflicts with Fed.R.Civ.P. 56(c) and 56(e). The Court recently held that Rule 56 does indeed require the Court to examine the merits of a motion for summary judgment even when a non-moving party fails to object as required by Local Rule 19(c). McDermott v. Lehman, 594 F.Supp. 1315, Civil No. 82-0295-P (D.Me. Sept. 21, 1984). A party who fails to object to a motion for summary judgment within ten days, as required by Local Rule 19(c), is deemed to have consented to the moving party’s statement of facts to the extent it is supported by appropriate record citations. Id., 594 F.Supp. at 1321.

In this case, the Motion for Summary Judgment was decided before the decision in McDermott, and the procedure set forth therein was not followed. In light of the McDermott decision, this Court shall exercise its plenary power to give relief from its interlocutory Order Granting Summary Judgment.

III.

Because Power Anchor failed to object to the Motion for Summary Judgment within ten days, as required by Local Rule 19(c), Power Anchor has waived its right to controvert Roberge’s supported factual contentions, and the motion will be decided on the basis of the movant’s submissions alone. McDermott, 594 F.Supp. at 1321.

The Plaintiffs in this case, Roger N. Gagne and Irene M. Gagne, brought this products liability action against Power Anchor Corporation, a distributor of powder-actuated fastening devices. Plaintiff Roger N. Gagne was injured by a projectile fired from a tool which was operated by one of his co-employees. The tool was manufactured by Power Anchor Corporation. Plaintiff’s employer was Roberge Construction, the Third-Party Defendant and the moving party on this Motion for Summary Judgment. Power Anchor filed a three-count, third-party complaint against Roberge Construction, seeking full or, alternatively, limited contribution or indemnification from Roberge should Power Anchor be found liable. Power Anchor claims that the primary cause of Plaintiff Roger N. Gagne’s injuries was the negligence of Roberge in failing to adequately instruct and train its employees in the proper use of the tool, failure to warn its employees of possible dangers associated with improper use, and allowing unqualified persons to operate the tool.

Roberge has paid substantial workers’ compensation benefits to Mr. Gagne. Roberge argues in its Motion for Summary Judgment that it is immune from suit by Power Anchor Corporation by virtue of the provisions of the Maine Workers’ Compensation Act. Roberge contends that the state Workers’ Compensation Act is an absolute bar even to limited contribution in the amount of the Roberge workers’ compensation lien. For purposes of deciding this motion, the Court must assume that Plaintiff’s injury was caused, at least in part, by the fault of his employer, Roberge Construction.

Power Anchor’s third-party complaint contains three counts which may be summarized briefly: (1) indemnification to the extent of Roberge’s fault; (2) contribution to the extent of Roberge’s fault; and (3) contribution limited to the amount of Roberge’s workers’ compensation lien. The first two counts may be quickly disposed of under current Maine law. However, the third count presents difficulties which the Court is not prepared to resolve at this point in this litigation.

The immunity provision of the Maine Workers’ Compensation Act provides in pertinent part that employers “shall be exempt from civil actions because of such injuries ... at common law____” 39 M.R.S.A. § 4 (Supp.1983-84). That this provision bars a third-party action for contribution or indemnification against the employer was made clear in the case of Roberts v. American Chain & Cable Co., 259 A.2d 43 (1969), and need not be discussed at length here. In Roberts, the Law Court squarely held that third-party actions for contribution or indemnity are barred under the workers’ compensation statutes.

The rationale underlying Roberts was reaffirmed in the recent case of McKellar v. Clark Equipment Co., 472 A.2d 411 (Me. 1984). In McKellar, the Law Court held that the wife of an employee was barred from suing the employer for loss of consortium as a result of injuries sustained by the employee which were compensable under the Workers’ Compensation Act. Although the Court noted that the facts in Roberts were “readily distinguishable” from those in McKellar, it observed that “the underlying rationale is not confined to that single case and is not easily rejected.” McKellar, 472 A.2d at 414. The Law Court in McKellar quoted Roberts as follows:

Generally ... [this Court] has looked upon this legislation as a transfer of the burdens resulting from industrial aceidents, regardless of who may be at fault, from the individual to the industry and on ultimate distribution of such burdens upon society as a whole, by compelling the industry, in which the accident occurs, through the employer, to pay compensation benefits based on the average weekly wages of the injured employee in substitution for the loss of wages occasioned by the accident____ Our court, on the other hand, has maintained that employers have rights and they also are entitled to rely on the certainty of the compensation to be paid and the amount of the services to be rendered. Perversion of the law, either to benefit the employee or protect the employer, has the tendency only to bring the law into contempt____ The intent of the statute was not to burden the industries of the state beyond the scope of the Act as defined by the lawmakers.

McKellar, 472 A.2d at 414 (quoting Roberts, 259 A.2d at 48-49).

The Law Court’s decision in Roberts and its reaffirmation of Roberts in McKellar persuade this Court that, under the law of the State of Maine, Power Anchor’s claims for contribution and indemnity, set forth in Counts I and II of its Third-Party Complaint, are barred by section 4 of the Workers’ Compensation Act.

IV.

Power Anchor’s third count presents the narrower question of whether an employer may be required to contribute to a partially responsible third party only to the extent of the employer’s liability under the Workers’ Compensation Act. Specifically, Power Anchor seeks declaratory relief extinguishing Roberge’s workers’ compensation lien to the extent of its comparative liability, setting off any amounts previously paid to the Plaintiffs by Roberge from the Plaintiffs’ judgment, and directing Roberge to pay any further workers’ compensation benefits to which the Plaintiffs may become entitled directly to Power Anchor. Alternatively, Power Anchor seeks contribution from Roberge limited to the amount which it recoups from the Plaintiffs pursuant to its workers’ compensation lien, and declaratory relief directing Roberge to pay directly to Power Anchor any further workers’ compensation benefits to which the Plaintiffs would have been entitled if the Plaintiffs had not succeeded in their suit against Power Anchor.

Section 68 of the Maine Workers’ Compensation Act permits an injured employee, at his option, to either claim compensation under the Act or obtain damages from a third party other than the employer who is responsible for the injury. 39 M.R.S.A. § 68 (Supp.1983-84). If an employee claims benefits under the Workers’ Compensation Act, the employer is granted a “lien for the value of compensation paid on any damages subsequently recovered against the third person liable for the injury.” Id. If an employee fails to pursue his remedy against a responsible third party, the employer who complies with the provisions of section 68 is subrogated to the rights of the injured employee and may proceed against the responsible third party. Id. An employee who receives benefits from an employer and then recovers damages from a responsible third party is required to repay the compensation benefits to the employer. Id.

Under these provisions, it appears that an employer may recover in its entirety his statutory lien from any damage award recovered by the employee from a responsible third party, even if the employer is partially at fault under general principles of tort law. In short, an employer may avoid paying any compensation to the employee if a third party is found to be partially at fault.

The question whether the Maine Law Court would apply the broad principles of Roberts to bar a claim for contribution limited to the amount of the employer’s lien was faced by this Court before in the case of Drinkwater v. Laser Manufacturing Co., Inc., Civil Nos. 79-99, 79-100 P (D.Me. Sept. 16, 1981) (per Gignoux, J.) (unpublished). In Drinkwater, the Court found the question whether limited contribution should be permitted to be an “unsettled question of Maine law” and thus denied the employer’s motions to dismiss the third-party complaints filed in that case. The Court ordered that the question of the relative fault of the manufacturer and the employer be submitted to the jury and, if the jury found liability on the part of the employer, that the certification of the issue to the Maine Law Court then be addressed.

The rationale for the order in Drinkwater is contained in the Recommended Decision of the Magistrate, which was adopted by the Court. The Magistrate distinguished the Roberts case on two grounds.

First, the manufacturer in Roberts apparently sought contribution or indemnity to the full extent of the employer’s fault and thus sought an extension of the employer’s total liability. Drinkwater, Magistrate’s Recommended Decision at 4. The Magistrate observed: “No such relief is sought by manufacturer here; manufacturer does not seek any extension of the employer’s liability, but only seeks to avoid reimbursing employer for employer’s own wrong.” Id.

Second, the Magistrate found that it was no longer true that, as the Law Court observed in Roberts in 1969, the “overwhelming majority” of jurisdictions deny contribution today. Id. The Magistrate determined that the holding of Roberts was placed in doubt by developments in the law in other jurisdictions.

The approach taken in Drinkwater to pretrial motions to dispose of third-party claims for limited contribution against an employer was twice followed by this Court in subsequent cases. Connell v. Cessna Aircraft Company, Teledyne Industries, Inc., Civil Nos. 80-1085-B, 80-1088-B, 80-1089-B (D.Me. Sept. 16, 1982) (per Cyr, J.); Mason v. Consolidated Utility Equipment Service, Inc., Civil No. 81-0087-B (D.Me. Mar. 3, 1983) (per Cyr, J.).

Roberge argues in its memorandum accompanying its Motion for Summary Judgment that the rationale of Drinkwater has been undermined by the Law Court’s decision in McKellar. This Court agrees that McKellar reaffirms the general principles of Roberts and thus vitiates one of the two rationales set forth by the Magistrate in Drinkwater. That is, McKellar makes clear that the underlying rationale of Roberts is alive and well in Maine law today. As discussed above, however, McKellar dealt with the very different question of a wife’s loss of consortium claim, and its reasoning did nothing to advance Maine law with respect to the narrow question of whether a damage award against a partially responsible third party should be reduced by the amount of the employer’s workers’ compensation lien.

The narrow issue, then, is whether the Court should abandon the Drinkwater approach because McKellar has undermined one of the two rationales relied upon by the Magistrate in that case. The Court finds that the most compelling basis for the Drinkwater approach is that the Maine Law Court has never confronted the question whether a third-party claim against an employer, limited only to the amount of the employer’s workers’ compensation lien, is to be distinguished from a general claim for contribution which may extend the employer’s total liability beyond that under the Workers’ Compensation Act. Therefore, despite the recent decision in McKellar, it still cannot safely be predicted that the Law Court would today order dismissal of the third-party complaint.

The Court will deny Roberge’s Motion for Summary Judgment as to the third count in Third-Party Plaintiff Power Anchor’s complaint, without prejudice. Roberge Construction shall remain a party to this suit, and the Court will consider certifying the question presented herein to the Maine Law Court if the future course of this litigation properly postures the issue.

V.

The Maine Law Court is authorized to decide an issue of Maine law certified to it by a federal court under 4 M.R.S.A. § 57 (Supp.1983-1984). The procedure for certification is set forth in Me.R.Civ.P. 76B., which provides in pertinent part:

(a) When Certified. When it shall appear to the Supreme Court of the United States, or to any of the Courts of Appeal or District Courts of the United States that there are involved in any proceeding before it one or more questions of law of this state which may be determinative of the cause and that there are no clear controlling precedents in the decision of the Supreme Judicial Court, such federal court may, upon its own motion or upon request of any interested party, certify such questions of law of this state to the Supreme Judicial Court sitting as the Law Court, for instructions concerning such questions of state law.

(Emphasis added.) Thus, the Law Court will not decide a certified question unless it is “determinative of the cause” and there are “no clear controlling precedents.” The Court has determined that, to date, there are no clear controlling precedents with respect to the issue presented herein. At this stage in litigation, however, it is not possible to determine whether a decision on the issue will be “determinative of the cause." To be determinative, a state law question must be susceptible of an answer which, in one alternative, will produce a final disposition of the federal cause. White v. Edgar, 320 A.2d 668, 677 (Me. 1974). Further, the Maine Law Court has held that a decision cannot be determinative unless all material facts have been either agreed upon or found by the court. In Re Richards, 223 A.2d 827, 833 (Me. 1966).

In light of these principles, this case will not be postured for certification until the factfinder has determined the relative fault of each of the parties defendant. The question will be determinative only if both Power Anchor and Roberge Construction are found to be at fault for the Plaintiff’s injuries. Only then will Power Anchor’s claim for limited contribution from Roberge need to be decided.

Accordingly, it is ORDERED:

(1) that Third-Party Plaintiff’s Motion for Relief From this Court’s Order Granting Third-Party Defendant’s Motion for Summary Judgment, herein treated as a motion for relief from an interlocutory order of the Court, is GRANTED;
(2) that Third-Party Defendant’s Motion for Summary Judgment is GRANTED as to Counts I and II of Third-Party Plaintiff’s complaint; and
(3) that Third-Party Defendant’s Motion for Summary Judgment is DENIED as to Count III of Third-Party Plaintiff’s complaint, without prejudice.

So ORDERED.

      . Local Rule 19 was amended, effective June 1, 1984, so that subsection (b) is now subsection (c). The pertinent language has not been amended:
      Unless within 10 days after the filing of a motion the opposing party files a written objection thereto, he shall be deemed to have waived objection, and the Court may act on the motion.

        . The advisory committee note to the T946 amendments to Rule 60(b) explained:
      The addition of the qualifying word "finar emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
      Fed.R.Civ.P. 60(b) advisory committee note; see also 11C. Wright & A. Miller, Federal Practice and Procedure, § 2852 at 145 (1973).

      . The Court notes that it applied Rule 60(b) to Power Anchor’s First Motion for Relief from Judgment in its Order of June 7, 1984. In that motion, Power Anchor sought relief due to the neglect of counsel. Because of the decision in this Order, it is unnecessary for the Court to reconsider its Order of June 7, 1984, in light of its determination herein that the Order Granting Summary Judgment did not constitute a final judgment. The Court advises, however, that, in the exercise of its discretion to give relief from interlocutory orders, it would not be inclined toward relieving from such orders merely due to the neglect of counsel. The Court also notes that in neither Power Anchor’s First Motion for Relief nor the pending one did it raise the possibility that the Court's Order Granting Summary Judgment was not final within the meaning of Rule 54(b).

      . In addition, an employee is prevented from suing an employer under § 28:
      An employee of an employer, who shall have secured the payment of compensation as provided in Sections 21 to 27 shall be held to have waived his right of action at common law to recover damages for the injuries sustained by him, and under the statutes specified in Section 4.
      39 M.R.S.A. § 28 (1978).

      . Under Maine law, each concurrent tortfeasor is jointly and severally liable to the plaintiff for the full amount of the plaintiff's damages. 14 M.R.S.A. § 156 (1980). However, any defendant has the right to determination by the jury of the percentage of fault attributable to each defendant, id., and each defendant has the right to obtain contribution from any other parties at fault. Packard v. Whitten, 274 A.2d 169 (Me. 1971); see also Otis Elevator Co. v. F. W. Cunningham & Sons, 454 A.2d 335 (Me.1983) (defendant may obtain contribution from third party who is not directly liable to plaintiff under comparative negligence statute). If limited contribution by an employer who would be partially at fault under tort principles is barred, the employer is not only immune from suit, he may also recover the entire amount of the workers' compensation benefits he has paid from the damage award. Meanwhile, the third party, who is only partially at fault, would have no right to contribution.

      . The apparent inequity caused by the interaction of the compensation act with general tort law is further illustrated by a hypothetical set forth in the Magistrate's opinion in Drinkwater v. Laser Manufacturing Co., Inc., Nos. 79-99, 79-100 P (D.Me. Sept. 16, 1981), which was adopted by this Court (per Gignoux, J.):
      Suppose manufacturer is held liable to the plaintiff for $50,000, and further suppose that that employer has already paid to the plaintiff $15,000 in workers’ compensation payments. Under Maine law, employer may secure reimbursement of its $15,000, leaving plaintiff with a net recovery of $35,000. 39 M.R.S.A. § 68. The net effect is that the manufacturer reimburses the employer for the employer’s workers’ compensation payments. But suppose, as we must suppose in this case, that the employer’s fault far exceeds the manufacturer's fault. Is it "justice" to require the lesser wrongdoer to reimburse the greater wrongdoer? Manufacturer says no and seeks relief from this reimbursement on the theory that employer must not be allowed to profit from his own wrong.

        Id. Recommended Decision on Third-Party Defendant's Motions to Dismiss at 3.

      . Justices of the Maine Superior Court, in three cases decided subsequent to the Law Court’s decision in McKellar, have in fact refused to dismiss similar third-party complaints raising the identical question. See Logan v. Graco, Inc., Civil No. CV80-487 (Me.Super.Ct., June 24, 1984); Godin v. F.W. Cunningham & Sons, Civil No. CV81-1058 (Me.Super.Ct., June 28, 1984); Beaulieu v. Amatex Corporation, Civil No. CV80-612 (Me.Super.Ct., July 10, 1984). This Court recognizes that in determining the existing content of state law in diversity cases, the decisions of the trial courts may serve as important guideposts. The Court is also aware, from experience in the venue of the State of Maine, that the ultimate acceptance at the appellate level of the resolutions of important questions of legal policy reached at the trial level is usually fraught with many and often impenetrable exigencies. It is the aura that is cast by those exigencies, and not any concern about the propriety of the analysis of any of the foregoing Superior Court cases, that causes this Court to shrink from the prospect of giving them sufficient weight as predictive models of the future State of Maine law to overcome the uncertainty created by the lacuna of specific authorities at the highest level of the state judicial system.


author: TERENCE T. EVANS, District Judge.

text:
    Count FULLER a/k/a Jeffrey Pergoli, Plaintiff, v. The FULLER BRUSH COMPANY, Defendant.
    Civ. A. No. 83-C-592.
    United States District Court, E.D. Wisconsin.
    Oct. 20, 1984.

      Count Fuller, pro se.
    Truman Q. McNulty, Mulcahy & Wherry, S.C., Milwaukee, Wis., Allen H. Gerstein, Marshall, O’Toole, Gerstein, Murray & Bicknell, Chicago, 111., for defendant.
   DECISION and ORDER

TERENCE T. EVANS, District Judge.

IN AN ORDERLY WORLD,

The brilliant epigrammatist who penned the cartoon reprinted above probably does not know the plaintiff in this case. However, he fits the epigrammatist’s description to a tee. Yes, this is a case about someone who is a bit disorderly, that is to say, a bit out of the ordinary. He marches to the beat of a different drummer. The bottom line result of the matter before me is that he may, until further notice, continue to do so.

“Count Fuller a/k/a Jeffrey Pergoli” filed this action in the Circuit Court for Milwaukee County alleging that the Fuller Brush Company committed the tort of malicious prosecution. He also sought a declaratory judgment as to the legality of his sale of household cleaning supplies in his own name and the name “Count’s House of Fuller.” The Fuller Brush Company removed the case to this court and filed a counterclaim alleging trademark infringement, unfair competition, interference with business relations, and unfair trade practices. The company has moved for summary judgment.

Count Fuller has alleged that on two occasions the Fuller Brush Company maliciously caused him to be prosecuted. The first was a criminal charge for the issuance of a worthless check brought in Barton County, Kansas. The second was a charge in Milwaukee County of unlawful home solicitation. The company claims that under Wisconsin law, at least as that law is applied to the facts of this case, Count Fuller cannot establish the prerequisites for a malicious prosecution suit.

In Krieg v. Dayton-Hudson Corp., 104 Wis.2d 455, 460-461 (1981), 311 N.W.2d 641, the Wisconsin Supreme Court stated:

“The common law tort of malicious prosecution has not been favored by the courts, and in Wisconsin we have taken a restrictive position on this tort. While we want to afford a remedy to those who have been truly wronged, we must also deter frivolous or groundless litigation. In order to accomplish this, the tort of malicious prosecution is designed to place a stringent burden upon a plaintiff to meet the following elements:
“1. There must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in this action for malicious prosecution.
“2. Such former proceedings must have been by, or at the instance of, the defendant in this action for malicious prosecution.
“3. The former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution.
“4. There must have been malice in instituting the former proceedings.
“5. There must have been want of probable cause for the institution of the former proceedings, and “6. There must have been injury or damage resulting to the plaintiff from the former proceedings.”

In addition, the court stated in Gladfelter v. Doemel, 2 Wis.2d 635, 87 N.W.2d 490 (1958), that it is a defense to a charge of malicious prosecution if the suit is instituted on the advice of counsel or of a prosecuting attorney.

It is undisputed here that on July 16, 1980, Jeffrey Pergoli became a Fuller Brush dealer. As a dealer he agreed to pay for merchandise purchased from Fuller Brush within 14 days of shipment. On October 23, 1980, he sent Fuller Brush a personal check for $264.53 in payment for goods received. On December 5, 1980, he was informed that the check had been returned because of insufficient funds in his account. In January 1981, he was terminated as an authorized Fuller Brush dealer. Fuller Brush made a written demand for payment and inquired concerning the reasons for non-payment. It offered a payment plan on January 21, 1981. Count Fuller did not respond until April 2, 1981, when he promised to pay the amounts due.

On April 2, 1981, the Credit Manager of the Fuller Brush Company demanded payment of the overdue account and threatened prosecution in connection with the bad check. On September 30, 1981, criminal proceedings were instituted against Count Fuller in Kansas for the issuance of a worthless check. Because the action was filed by the prosecuting attorney in Kansas, no claim can lie here for malicious prosecution.

As to the unlawful home solicitation charge, the facts show that a customer, Eileen Ewig, paid Count Fuller for goods she had purchased with a check made out to the Fuller Brush Company. After the products were delivered, Ewig noticed that they were not Fuller Brush products. She complained to the Shorewood Police Department. On November 17, 1981, a criminal complaint was filed against Count Fuller for violating the home solicitation statute. The charge was later dismissed on motion of the State. As to this charge, Count Fuller cannot establish that there was a lack of probable cause for the issuance of the charge. In addition, he does not allege that this charge was brought at the instance of the Fuller Brush Company. Thus, the claims of Count Fuller for malicious prosecution are dismissed.

The Fuller Brush Company has also requested dismissal of Count 2 of the Complaint, the declaratory judgment action, as well as judgment on its claims for trademark infringement, unfair competition, interference with the business relations, and unfair trade practices. These items are intertwined.

The undisputed facts show that on October 11, 1982, Jeffrey Pergoli legally changed his name to Count Copy-Fuller. This occurred almost two years after he was terminated as an authorized Fuller Brush dealer. As “Count Fuller” he has continued to perform as a colorful, some might say bizzare or outrageous, door-to-door salesman of household supplies. When he works he states that he shows potential customers a Fuller Brush product catalog with his own label attached. His label reads “Count (Red Heart) Fuller; the most famous door-to-door salesman in America is an independent marketer of Fuller Brush products and Superb Brush Company. He is not an employee or agent of the Fuller Brush Company. All Fuller Brush products are resold only — to order call: Phone (414) 765-9215.”

The Count wears wild costumes. At the court hearing on these motions he wore one of them, a bright green sportscoat and large dark glasses in the shape of butterflies. He had numerous small stuffed animals perched on his shoulders. As the sketch made during the hearing shows (too bad it’s not in color), the outfit borders on the outrageous. As the sketch also shows, the company’s attorneys at the back table are not amused. Actually, the Count’s former lawyer (he has been proceeding pro se lately) at the front table also does not appear to be too amused. In fact, the only happy face in the courtroom belongs to the Count’s companion (perhaps “Countess” Fuller), who supported him from the front row during the hearing.

Perhaps because it is not amused, the company claims that Count Fuller’s activities must be stopped. The issue presented is to what extent Count Fuller’s activities are legally impermissible either as unfair competition or because they infringe on the Fuller Brush trademark.

The “Fuller Brush Man” is a part of American lore. It is as if he exists in a Norman Rockwell painting, carrying samples of mops and bottles of cleaning solutions to the housewife, who answers the door while wiping her hands on her apron. Today, he is probably less folksy but no less respectable. To understate, Count Fuller does not fit the bill. In fact, the Count is so atypical that it is difficult to imagine why the Fuller Brush Company seems so threatened by his activities. I do not believe that any, or at least very many, could be deceived. Certainly, I cannot say as a matter of law that a significant likelihood of confusion exists.

Count Fuller states outright in his materials that he is not a Fuller Brush Man. Why would a reasonable person think that he was? Dom DeLuise can squirm into bikini Jockey underwear and say he’s Jim Palmer without causing Palmer or Jockey any anxiety. Exaggeration, hyperbole and parody have a place. It should not be the mission of the federal court to stomp them out. Because material facts exist and because I cannot say as a matter of law that confusion exists, I must deny the motion of the Fuller Brush Company for summary judgment.

      . He is Dr. Ashleigh Brilliant, the author of, among other books, “Appreciate me Now and avoid the rush.”

      . In an affidavit filed by Count Fuller on February 21, 1984, he disclaims an interest in using the name “Count’s House of Fuller.” Thus, his declaratory judgment claim will be limited to his use of the name “Count Fuller.”

      . The disclaimer here is important. On this motion, the disclaimer, coupled with the Count’s crazy persona, have tipped the scale in his favor. If the disclaimer were not used, the result of this motion could very well be different.

      . The sketch was made by my former law clerk, Richard J. Sankowitz, B.A., Marquette University, 1980; J.D., Harvard Law School, 1983. Although Mr. Sankovitz’s talents as an artist are considerable, his skills as a lawyer are even more impressive.