author: NEESE, Senior District Judge.

text:
    Stanley Barham CLARK, Petitioner, v. Jimmy C. ROSE, etc., Respondent.
    Civ. A. No. 3:83-0766.
    United States District Court, M.D. Tennessee, Nashville Division.
    Oct. 7, 1983.
    On Motion To File Answer Out-of-Time March 16, 1984.
    Order July 16, 1984.
    On The Merits July 16, 1984.
    On Motion For Stay Aug. 11, 1984.
    Scott Daniel, Murfreesboro, Tenn., for petitioner.
    Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Tenn., for respondent.
   MEMORANDUM OPINION AND ORDERS

NEESE, Senior District Judge.

The petitioner Mr. Stanley Barham Clark applied pro se to this Court for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of July 27, 1979 of the Circuit Court of Rutherford County, Tennessee in violation of the Constitution. 28 U.S.C. § 2254(a). Annexed to his application is Mr. Clark’s affidavit that he is unable to pay the cost of this proceeding or give security therefor and a statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). Accordingly, he hereby is

AUTHORIZED to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

The applicant claims he exhausted remedies available to him under the law of Tennessee, 28 U.S.C. § 2254(b), by his direct appeal of his judgment of conviction to the Court of Criminal Appeals of Tennessee, which affirmed such judgment on July 27, 1981, and by applying for permission to appeal farther, which application was denied by the Supreme Court of Tennessee. He contends inferentially that he presented fairly to those Courts his federal claims of violations in his trial of:

—his right not to “be compelled in any criminal case to be a witness against himself,” Constitution, Fifth Amendment; Smith v. Estelle, 602 F.2d 694, 704 (5th Cir.1979), reh. den., 606 F.2d 321 (1979), aff'd. sub nom. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (“[UJnder the fifth amendment a criminal defendant of course cannot be forced to discuss his alleged crime with anyone who is able to use his statements as evidence against him at his trial”);

—his right “to have the Assistance of Counsel for his defence,” Constitution, Sixth Amendment; “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him” Pointer v. State of Texas, 380 U.S. 400, 406-407, 85 S.Ct. 1065, 1069[10], 13 L.Ed.2d 923 (1965), although a defendant’s right “to be informed of the nature and cause of the accusation against him” did not require the state of Tennessee to furnish him with its proof in its original form, Bosley v. State, 218 Tenn. 134, 401 S.W.2d 770, 771[1] (1966); and,

—his right not to be deprived by the state of Tennessee “of * * * liberty * * * without due process of law,” Constitution, Fourteenth Amendment; Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459[6], 61 L.Ed.2d 39 (1979) (“ ‘[A] State * * * may not shift the burden of proof to the defendant’ ” * * * to prove that he lacked the requisite mental-state to commit a deliberate homicide.)

On examination for purposes of preliminary consideration, it thus does not appear plainly from the face of the applicant’s petition that he is not entitled to relief in this Court at this time. Rule 4, 28 U.S.C. fol. § 2254. Therefore, it hereby is ORDERED:

1. that the respondent-warden file an answer or other pleading within 43 days herefrom, id., the noticed slow-movement of the mail providing good cause for additional time, 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.; and,

2. that the clerk of this Court serve forthwith by certified mail on the respondent-warden (or his successor) and the attorney general and reporter of Tennessee a copy of the petition herein and. of this order, Rule 4, supra.

ENTER:

ON MOTION TO FILE ANSWER OUT-OF-TIME ORDERS

I.

The motion of the respondent to file his answer out-of-time hereby is

GRANTED.

II.

It hereby is

ORDERED that counsel for the petitioner file within 20 days herefrom a brief addressing the issue:

Whether the jury instructions of the trial judge regarding the presumption of malice, see Transcript, vol. 8 at 1086, 1087-1089, were constitutionally deficient under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 39 [2450, 61 L.Ed.2d 39] (1979), and, if so, whether such error was harmless.

See Phillips v. Rose, 690 F.2d 79 (6th Cir.1982) and Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), cert. grant., — U.S. -, 104 S.Ct. 231, 78 L.Ed.2d 224 (1983).

ON THE MERITS

This is an application by a state-prisoner for the federal writ of habeas corpus. 28 U.S.C. § 2254(a). The petitioner Mr. Stanley Barham Clark was convicted on July 20, 1979 in the Circuit Court of Rutherford County, Tennessee of murder in the first and second degrees. Inter alia, Mr. Clark contends that certain instructions given the jury shifted effectively the burden of proving malice, an essential element of the crimes charged, from the prosecution to him, in violation of his right to due process of law, Constitution, Fourteenth Amendment. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Under the law of this Circuit, such contention has merit.

I.

On the cold, rainy night of December 30, 1978, Mr. Charles Browning and his companion Ms. Joy Faulk were shot to death at near point-blank range while they sat in the cab of Mr. Browning’s pickup-truck in a rural area of Rutherford County, Tennessee. Ms. Faulk’s two young daughters Mitzi and Michelle, ages 6 and 3, respectively, were with their mother at the time of the shooting and were found afterward wandering along a roadway in search of assistance. The petitioner, a former live-in boyfriend of Ms. Faulk who had threatened to kill her if he ever caught her with another man, was charged with two counts of murder in the first-degree. His trial began on July 16, 1979 and was presided over by the Honorable William S. Russell.

The Court of Criminal Appeals of Tennessee characterized the case against Mr. Clark as substantially circumstantial and involving “ * * * a somewhat complicated domestic situation. * * * ” State of Tennessee, appellee, v. Stanley Barham Clark, appellant, unpublished opinion of February 27, 1981 in no. 79-106-11. Such appellate Court summarized the evidence thusly:

* * * The former husband of Joy Faulk, one of the victims, is the stepbrother of Shirley Browning the wife of the other victim. Joy Faulk and Charles Browning were involved in a relationship which had considerably agitated defendant. Prior to taking up with Browning, Joy Faulk and Clark had lived together. Their cohabitation was apparently a stormy one. After they separated he became very upset because she was dating other men, including Browning. This homicide occurred on the night of December 30, 1978. Shortly after 9:00 on that night, a police officer observed a brown, or brownish colored pickup truck pursuing a red pickup truck in the general vicinity of the homicide scene. The brown truck was subsequently identified as the property of defendant. The red truck was owned by Charles Browning. An hour or two later the bodies of Browning and Joy Faulk were discovered in the truck which was parked in the driveway of Mrs. Faulk’s former brother-in-law. Mitzi Faulk, six-year-old daughter of Joy Faulk, and her three-year-old sister, were passengers in Browning’s truck at the time of the homicide. She told witnesses, and testified, that defendant, who was known as “Clicker” had followed them into the driveway of Jeff Faulk and shot her mother and Charles Browning. The murder weapon, a .25 caliber pistol, had been borrowed by defendant from a friend, Terry Hill, a few days before the shooting occurred. He told Hill the pistol had been stolen. Sometime later, it was found by the roadside near defendant’s home. While police officers were searching for him on the night of the homicide, they encountered him in his pickup truck near the driveway to his home. He fled, resulting in a high speed chase for some distance before he was apprehended.
* * * * * *

lb., at 1-2.

II.

The trial-judge instructed the jury that in order to find the petitioner guilty of murder in the first degree, the State must have proven beyond a reasonable doubt inter alia:

* * * That the killing was malicious: That is, that the Defendant was of the state of mind to do the alleged wrongful act without legal jurisdiction or excuse. If it is shown beyond a reasonable doubt that the alleged victims were killed, the killing is presumed to be malicious in the absence of evidence which would rebut the implied presumption. [Emphases provided here.]

Transcript, pp. 1084-1085. As to the lesser-included offense of murder in the second-degree, the jury was instructed that the State must have proven beyond a reasonable doubt inter alia that the killing “was malicious” and that malice “is an essential ingredient” of second-degree murder. Ib., at 1086. Additionally, the trial judge charged:

* * * * H *
All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.
Likewise, if a deadly weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, then there is raised a presumption of malice sufficient to support a conviction of murder in the second degree unless it is rebutted by other facts and circumstances. * * * ******
The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all the facts and circumstances developed by the evidence to determine whether the State has proven beyond a reasonable doubt the existence of malice. If you have a reasonable doubt as to whether the alleged killing was done with malice, then the Defendant cannot be guilty of murder in the second degree and you must acquit him of that offense.
jJs # # sfs sfs

lb., at 1087-1089 (emphases provided here).

There is absolutely no doubt that the trial judge instructed the jury in accordance with the settled law of Tennessee; in fact, his instructions were identical to those contained in the Tennessee Pattern Instructions. However, some three years after the trial under consideration was completed, the Court of Appeals for this Circuit held that such “presumption-of-maliee” instructions were infirm constitutionally under Sandstrom, supra, because they “ * * * clearly had the effect of shifting the burden of persuasion regarding malice, an element of both first and second degree murder in Tennessee, to the defendant. * * *” Phillips v. Rose, 690 F.2d 79, 81 (6th Cir.1982); accord: Lockett v. Am, 728 F.2d 266, 272 (6th Cir.1984) (mens rea element of crime cannot be presumed from defendant’s acts; such a presumption forces defendant to assume burden of disproving an essential element of the crime); Engle v. Koehler, 707 F.2d 241 (6th Cir.1983), aff'd. by equally-divided Court — U.S. —, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984); Krzeminski v. Perini, supra, 614 F.2d at 123 — 124[1] (“What the state may not do is presume that an element of a crime exists as a result of given conduct and then place the burden of showing otherwise on the defendant.”)

The respondent argues there was no Sandstrom -deficiency here because the trial-judge instructed the jury also that the burden was on the State to prove the existence of malice beyond a reasonable doubt and that the jury should consider all the facts and circumstances in determining whether the State had met such burden. This very argument was rejected in Phillips v. Rose, supra, because these additional instructions are not inconsistent rhetorically with the existence of a burden-shifting presumption, since a reasonable juror could have regarded the presumption of malice as a means by which proof of malice beyond a reasonable doubt could be satisfied. Id., 690 F.2d at 81; accord: Engle v. Koehler, supra, 707 F.2d at 245.

Under the instructions given by the trial-judge, the jury could have understood reasonably that the prosecution could meet its burden of proving the element of malice merely by showing that a killing had occurred; that once the State demonstrated a killing, malice was presumed, and it then devolved upon Mr. Clark to negate the existence of such element. “ * * * Such an instruction effectively shifts the burden to the defendant of disproving an element of the crime. This is constitutionally forbidden. * * * ” Krzeminski v. Perini, supra, 614 F.2d at 124-125; accord: Lockett v. Arn, supra, 728 F.2d at 272 (“Such a presumption forces the defendant to assume the burden of disproving an essential element of the crime.”)

III.

The remaining consideration, then, is whether the giving of the foregoing jury-instructions constituted harmless-error. “ * * * [Hjarmless error in the context of an asserted constitutional violation is an extremely narrow standard, permitting the state to avoid retrial only if it can be demonstrated beyond a reasonable doubt that the error did not contribute in any way to the conviction. * * * ” Melchior v. Jago, supra, 723 F.2d at 493[14],

In this Circuit,
* * * the prejudicial effect of a Sandstrom instruction is largely a function of the defense asserted at trial. If the defendant acknowledges that an intentional, malicious killing occurred and only claims non-participation, then a Sandstrom instruction may be harmless. Conversely, if the defendant asserts lack of mens rea, a Sandstrom instruction can be extremely prejudicial even if overall proof of intent or malice is substantial. * * *

Engle v. Koehler, supra, 707 F.2d at 246; accord: Lockett v. Arn, supra, 728 F.2d at 273; Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.1983), cert. den. 462 U.S. 1121, 103 S.Ct. 3092, 77 L.Ed.2d 1352 (1983); see Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion); cf. Steele v. Taylor, 684 F.2d 1193, 1205, n. 14 (6th Cir.1982), cert. den. 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983) (“Constitutionally defective instructions impose an improper framework for the evaluation of all evidence and can virtually never be harmless.”)

Clearly, this is not a situation where the defendant acknowledged at trial that an intentional, malicious killing had occurred and only claimed non-participation therein. Instead, Mr. Clark’s defense accented both the physical and mental elements of the offenses charged. His defense was threefold: (1) that he did not commit the killings and knew nothing about them; (2) that, because of mental-illness and voluntary intoxication, he was not guilty; and (3) that, even if the jury should find the existence of all elements of the crimes, he should be found not guilty by reason of insanity.

From the outset of the trial, it was clear that the defense was unlikely to concede anything, rather that it intended to put the State to its burden of proving beyond a reasonable doubt every element of the offenses charged, physical as well as mental. The reliance on a mens rea defense, in addition to the claim of non-participation, was evident throughout the entire trial:

(1) In his opening statement, counsel for Mr. Clark told the jury:

******
We will further show you that even if, as unlikely as it might be, the Prosecutor were able to establish to your satisfaction that Stanley Clark did commit the acts alleged, we will show you by psychiatric experts that Stanley Clark has no recollection of participating in any act as is charged against him and that, even if the State should submit evidence to establish that the acts were committed, then the evidence will show that Stanley Clark has total amnesia of any knowledge of the deaths of Joy Faulk or Charles Browning and that due to his mental condition he could not have possessed the mental capacity required to establish his guilt.
******

Transcript, at 24.

(2) In his cross-examination of the witness Ms. Sylvia Kay Barrett, counsel for Mr. Clark brought out evidence that, for some months prior to the homicides, the petitioner had engaged in strange behavior; had acted as if he really didn’t know what he was doing; lost some 35 pounds in weight; could not eat or sleep; was bothered by his reminences of his experiences in Viet Nam; could see in his dreams Vietnamese people coming at him; was greatly depressed; acted as if he were a different person; grew progressively more quiet; was very withdrawn; and was upset physically and depressed emotionally. Ib., at 521-525.

(3) The trial-judge, himself, recognized (after the State had rested its case-in-chief) the nature of the evolving defense: “ * * * The principal issue here, as the Court discerns it after three and one-half days of trial, is who killed these people, or if this Defendant did it what was his state-of-mind?” Ib., at 763.

(4) Immediately prior to the presentation of evidence for the defense, the trial-judge inquired of counsel whether he should charge the jury on all four degrees of homicide. Ib., at 774. Counsel for Mr. Clark requested him to do so, and stated “ * * * that the appropriate charge is that if you find the Defendant killed while suffering from a mental disease or defect so great as to render him unable to formulate a specific intent to kill or to harbor malice, but not so great as to render him insane, his killing is involuntary manslaughter.” Id.

(5) The trial-judge recognized also at this point in the trial that there had been “ * * * some rather tangential indication that there might be a drunkenness factor in the defense and, of course, there is a charge that reduces what would otherwise be first degree murder to no more than second degree murder in the event of an effect [of intoxication], * * * ” Ib., at 776. Defense-counsel requested that such a jury instruction be given. Id.

(6) As its first witness, the defense called Dr. John Griffin, a psychiatrist, who testified that, in his professional opinion, Mr. Clark was suffering from a longstanding condition of depression at the time of the homicides and “ * * * that his mental illness was such that it rendered him substantially incapable of conforming his behavior to the requirements of the law. * * ” Ib., at 799-800. The testimony of Dr. Griffin supported also the petitioner’s claim of amnesia, ib., at 800, and that of voluntary intoxication, ib., at 814-815. (Mr. Clark had told Dr. Griffin that, on the day of the homicides, he had consumed as much as 6 six-packs of beer plus a quantity of Vodka).

(7) Mr. Clark called as his second witness Dr. Roger White, also a psychiatrist. Dr. White testified that, in his professional opinion, Mr. Clark was suffering at the time of the homicides from “ * * * a serious and rather longstanding depressive neurosis * * * ” as a result of which “ * * * he was not able to conform his behavior to the requirements of the law at that time * * Ib., at 859-860. Dr. White’s testimony supported further the petitioner's claim of amnesia. Ib., at 860-862.

This Court’s review of the trial-record reflects that Mr. Clark asserted a mens-rea defense which encompassed the essential element of malice. The trial-judge instructed the jury that

* * * [a] case of homicide cannot be murder unless at and before the killing the wicked intent, constituting malice aforethought, exists in the mind of the slayer. Malice is an intent to do any injury to another, a design formed in the mind of doing mischief to another. * * *

Ib., at 1086-1087.

The psychiatric — and other — evidence which the defense offered bore on the petitioner’s state-of-mind at the time of the slayings. This evidence was clearly relevant on the issue of malice, for, unless Mr. Clark’s state-of-mind was such that it harbored “wicked intent”, or intent or design to injure or do mischief to another, he did not act with malice and could not have been guilty of murder: As the trial-judge told the jury, the element of malice turned on the petitioner’s state-of-mind, and, specifically, whether he “ * * * was of the state-of-mind to do the alleged wrongful act without justification or legal excuse.” Ib., at 1084.

Additionally, the evidence of voluntary intoxication related to the issue of malice, for, under the law of Tennessee, intoxication “ * * * may negate a finding of specific intent. Thus, when the inquiry is whether or not the accused is guilty of first degree murder, it becomes relevant to know whether or not the accused was in a state of intoxication and, if so, the extent of its effect upon his mental state. * * * ” State v. Bullington, 532 S.W.2d 556, 560 (Tenn.1976).

“ * * * [E]ven when an intoxicated defendant is capable of forming specific intent, his drunkenness may be considered in determining whether he specifically intended the particular act for which he is on trial. * * * ” State v. Adkins, 653 S.W.2d 708, 713[3] (Tenn.1983). Mr. Clark’s alleged amnesia was relevant in so far as it reflected upon his state-of-mind at the time these offenses were committed. See Lester v. State, 212 Tenn. 338, 370 S.W.2d 405, 409 (1963); Sparkman v. State, 469 S.W.2d 692, 696-697 (Tenn.Crim.App.1970), cert. den. (Tenn.1970).

This is not a situation wherein the defendant admitted the mens-rea elements of the offenses and relied solely on the defense of insanity, thereby sufficiently reducing the likelihood that the jury applied the erroneous Sandstrom instruction, cf. Connecticut v. Johnson, supra, 460 U.S. at 87,103 S.Ct. at 978; to the contrary, Mr. Clark relied upon a mens-rea defense and offered evidence on his mental-condition which bore on that defense as well as on his claim of insanity. Under these circumstances, the Court does not conclude that the challenged jury-instructions contributed in no way to the petitioner’s convictions for murder.

IV.

The petitioner, thus, is entitled to relief. The writ of habeas corpus will issue, directing the respondent-warden or his successors) to release the petitioner Mr. Stanley Barham Clark from custody under the aforementioned convictions forthwith unless' the state of Tennessee has begun a retrial of him within 90 days herefrom. Peyton v. Rowe, 391 U.S. 54, 66-67, 88 S.Ct. 1549, 1556[8], 20 L.Ed.2d 426 (1968); Irvin v. Dowd, 366 U.S. 717, 728-729, 81 S.Ct. 1639, 1646[13, 14], 6 L.Ed.2d 751 (1961).

ORDER

For the reasons assigned in the accompanying memorandum opinion and order of this date, the writ of habeas corpus hereby is

GRANTED, and the respondent-warden, or his successor(s) in office, hereby is

ORDERED to release the petitioner Mr. Stanley Barham Clark from custody under his convictions of July 20, 1979 in the Circuit Court of Rutherford County, Tennessee forthwith unless the state of Tennessee has begun a retrial of him within 90 days herefrom.

ON MOTION FOR STAY

The respondent gave timely notice of an appeal from the Court’s order herein of July 16, 1984, that he release the petitioner from custody forthwith unless the state of Tennessee' has begun a retrial of him within 90 days. The respondent moved the Court also to stay such order pending the appeal. See Rule 62(d), F.R.Civ.P.; Rule 8(a), F.R.App.P.

The equities of a stay balance in favor of the respondent: “ * * * granting the stay for the time necessary to consider the [appeal] should not cause a significant incremental burden to [the petitioner], who has been incarcerated for several years, but doing so will relieve the State of [Tennessee] of the burden of releasing [the petitioner] or retrying him.” Tate v. Rose, — U.S. -, -, 104 S.Ct. 2186, 2187, 80 L.Ed.2d 805 (1984) (O’Connor, as Circuit Justice), (staying an order of the Court of Appeals for this Circuit, that a successful habeas corpus applicant be released pending retrial).

Accordingly, the application of the respondent for a stay hereby is

GRANTED, and the order herein of July 16, 1984 hereby is

STAYED pending completion of the appeal. Rule 23(c), F.R.App.P.

      . The Court’s memorandum opinion and orders herein of October 7, 1983 states erroneously that the petitioner is proceeding herein pro se and informa pauperis.

      . The respondent will be allowed 15 days after such brief is filed in which to submit any responsive brief.

      . The petitioner was sentenced to life imprisonment on the first-degree murder conviction and to 10-years' imprisonment on the second-degree murder conviction. Both such convictions were affirmed on direct appeal by the Court of Criminal Appeals of Tennessee, and the petitioner's application for permission to appeal to the Supreme Court of Tennessee was denied.

      . Mr. Clark asserts some 8 grounds in support of his petition. Each of those grounds was presented to the state appellate-courts, and therefore, as the respondent concedes, the applicant has exhausted his available state-remedies. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982); Bowen v. State of Tennessee, 698 F.2d 241, 243-244[2] (6th Cir.1983) (en banc).

      . Sandstrom was decided less than a month before the commencement of Mr. Clark’s trial.

      . After a decade of service on the Court of Criminal Appeals of Tennessee, Judge Russell retired as a presiding judge thereof in 1979. Previously, he had served as a judge of the 23rd Judicial Circuit of Tennessee, which court exercised trial-jurisdiction of civil and criminal actions. From 1976-1981, Judge Russell chaired a special committee appointed by the Supreme Court of Tennessee to study and promulgate what ultimately were adopted as the Tennessee Rules of Criminal Procedure. Following his "retirement", Judge Russell has sat periodically as a judge in the trial- and intermediate-appellate-courts of Tennessee, and as a special justice on the Supreme Court of Tennessee.

      . Mitzi Faulk, an eyewitness to the shootings, identified Mr. Clark positively as the killer. Although her testimony was discredited on cross-examination, she was rehabilitated through the testimony of other witnesses.

      . It does not appear that defense-counsel objected at trial to any of the challenged jury-instructions in accordance with Tennessee’s contemporaneous-objection rule. See Rule 30(b), Tenn.R.Crim.P.; Pulley v. State, 506 S.W.2d 164, 167[2, 3] (Tenn.Crim.App.1973), cert. den. by Supreme Court of Tennessee (1974) (error in jury-instructions cannot be raised for the first time on appeal). The respondent does not argue, however, that the bar of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), should be applied so as to preclude consideration of this claim on its merits.
      It is clear that Wainwright v. Sykes, supra, does not preclude this Court from reaching the merits of the instant claim because the Court of Criminal Appeals of Tennessee did not rely on the failure of Mr. Clark to make a contemporaneous-objection but reached the merits of this claim, holding that the challenged instructions did not violate Sandstrom, supra, at 13-15. •<* * * where a state appellate court does not rely on a procedural default, but reaches the merits of the federal law claim, the Sykes bar is inapplicable. * * * ” Melchior v. Jago, 723 F.2d 486, 490[4] (6th Cir.1983), cert. den. — U.S.-, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984).

      . It has long been the rule in Tennessee that all homicides are presumed to be malicious. See Everett v. State, 528 S.W.2d 25, 26[2] (Tenn.1975) ("All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption.”); Sikes v. State, 524 S.W.2d 483, 485[2] (Tenn.1975) (same); Gann v. State, 214 Tenn. 711, 383 S.W.2d 32, 36[11] (1964) (same); Lewis v. State, 202 Tenn. 328, 304 S.W.2d 322, 324[1] (1957) (where a homicide is clearly proven and the slayer ascertained, and nothing else is shown, the killing is presumed to have been done maliciously); Mitchell v. State, 13 Tenn. (5 Yerg.) 340, 349-350 (1833) ("[if] the killing be proved, the law presumes that it was malicious, and [ ] it was incumbent on the defendant to show, by proof, matters in alleviation, or that it was a less of-fence”); Coffee v. State, 11 Tenn. (3 Yerg.) 283, 291 (1832) ("if A kill B, and that fact alone being established by the State, the malice is presumed, and the onus of exculpation is upon the defendant”).
      Additionally, the law of Tennessee presumes malice from the use of a deadly weapon. Everett v. State, supra, 528 S.W.2d at 26[2]; Sikes v. State, supra, 524 S.W.2d at 485[3]; Gann v. State, supra, 383 S.W.2d 36[12]; Smith v. State, 212 Tenn. 510, 370 S.W.2d 543, 545[4] (1963); Nance v. State, 210 Tenn. 328, 358 S.W.2d 327, 329[4] (1962). These presumptions of malice appear to be an outgrowth of the (now) unconstitutional presumption that every person intends the usual and natural consequences of his or her acts. In Draper v. State, 63 Tenn. 246, 247 (1875), the Supreme Court of Tennessee approved the jury instruction that
      * * * "every man is presumed to be innocent, until his guilt is legally made to appear; but when a homicide is clearly proven, and the slayer ascertained, and nothing more appears, the killing is presumed to be criminal, as every person is presumed to intend the usual and natural consequences of his acts.”
      The highest Court of Tennessee does not appear to have considered the validity of the foregoing presumptions subsequent to the decision of the Supreme Court of the United States in Sandstrom. Interestingly, however, the Supreme Court of Tennessee stated recently that « * * * [m]auce may be inferred [emphasis provided] from the use of [a deadly weapon]. * * ” State v. Caldwell, 671 S.W.2d 459, 463 (Tenn.1984) (decided April 30, 1984). There is, of course, a big difference between an instruction which permits malice to be inferred, and one which says it will be presumed.

      " * * * While presumptions of an element [of a crime] are clearly unconstitutional, permissive inferences do not run afoul of the Constitution.
      * * * " Carter v. Jago, 637 F.2d 449, 455-456[4] (6th Cir.1980), cert. den. 456 U.S. 980, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982), citing Sandstrom, supra, (upholding instruction that the jury "may infer” malice where one intentionally shoots another with a weapon in a manner calculated to cause death). Cf. Harless v. Anderson, 664 F.2d 610 (6th Cir.1981), rev'd. on other grounds, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (instruction requiring jury to find malice if death caused by use of gun is unconstitutional).
      " * * * This distinction between a permissible inference and a mandatory or burden-shifting presumption is critical. * * * ” Krzeminski v. Perini, 614 F.2d 121, 125, n. 4 (6th Cir.1980), cert. den. 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980).

      . See 7 West's Tennessee Practice, Tennessee Pattern Jury Instructions: Criminal, §§ 20.01, 20.04.

      . Of course, Sandstrom is applied retroactively in this Circuit. Engle v. Koehler, supra, 707 F.2d at 244, n. 1; Burton v. Bergman, 649 F.2d 428, 431, n. 3 (6th Cir.1981), vac’t'd. on other grounds 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982). The Court of Criminal Appeals of Tennessee has also applied Sandstrom retroactively because it " * * * did not elucidate some new principle of constitutional law, but reiterated a rule that was conclusively stated as long ago as 1952. * * * ” State v. Chavis, 617 S.W.2d 903, 908 (Tenn.Crim.App.1980), permis. app.den. (Tenn.1981), citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

      . The federal Supreme Court has not given clear guidance on the standard of harmless-error which should be applied to a Sandstrom -deficient jury instruction. In Connecticut v. Johnson, supra, a plurality of four justices followed essentially the standard applied in this Circuit — that such an instruction could constitute harmless-error only in rare cases, such as where the defendant conceded the mens rea elements of the offense; four other justices favored a traditional harmless-error approach. Until further guidance is provided by the Supreme Court of the United States, this Circuit continues to follow the standard it has used in the past. Engle v. Koehler, supra.

      . In the words of the Court of Criminal Appeals of Tennessee: "Defense counsel exerted a diligent effort to show, among other theories, that animosity existed toward Joy Faulk on the part of Sam Faulk, her ex-husband, and that Shirley Browning, wife of Charles Browning also had the motive and the incentive to commit the homicidefs]. * * * ” Opinion, supra, at 2.

      . Under the law of Tennessee, the insanity-defense is considered by the jury only if it has first found that the State has proven beyond a reasonable doubt each element of the offense charged. See Graham v. State, 547 S.W.2d 531, 543 (Tenn.1977), citing the suggested jury-charge in United States v. Brawner, 471 F.2d 969, 1008 (D.C.Cir.1972); Tennessee Pattern Jury Instructions: Criminal, § 36.06.

      . Although the evidence of voluntary intoxication was rather weak, it was sufficient to submit to the jury, as the trial-judge did in his instructions. Transcript, at 1096-1097.

      . The Court does not consider redundantly any of the other grounds urged by Mr. Clark in his petition,


source: Caselaw Access Project

author: SAFFELS, District Judge.

license: Public Domain

text:
    Harry A. BROWN, et al., Plaintiffs, v. Jack REARDON, et al., Defendants.
    Civ. A. Nos. 82-2127 to 82-2129, 82-2141, 82-2158, 82-2177 and 82-2240.
    United States District Court, D. Kansas.
    Oct. 21, 1983.

      John H. Fields, David W. Carson, Scott Asner, Carson, Fields, Boal, Jeserich & Asner, Kansas City, Kan., for plaintiffs.
    J. Nick Badgerow, Kansas City, Kan., for Reardon.
    Edward H. Powers, Sr., Kansas City, Kan., for City of Kansas City.
    George Maier, Donald Ramsay, Overland Park, Kan., for Hanlon.
    Edward M. Boddington, Jr., Kenneth E. Holm, Kansas City, Kan., for Zahnter.
   MEMORANDUM AND ORDER

SAFFELS, District Judge.

On October 13, 1983, the above-styled action came on for trial. On October 20, 1983, at the close of plaintiffs’ evidence, defendants Jack Reardon, Patrick Hanlon and L.R. Zahnter moved for directed verdicts. The court granted the motions as to each defendant. This written memorandum and order, delineating more specifically the ruling of the court, reflects the court’s ruling from the bench on that date.

These civil rights actions were brought by employees of the City of Kansas City, Kansas, based upon the provisions of 42 U.S.C. §§ 1983, 1985, 1986 and 1988. The court will address these provisions in reverse order.

42 U.S.C. § 1988

All lower federal courts have repeatedly rejected the argument that § 1988 independently creates a federal cause of action for violation of civil rights. Section 1988 merely instructs federal courts as to the law to apply in causes of action arising under federal civil rights acts, and authorizes the assessment of attorney’s fees in some cases. Moor v. County of Alameda, 411 U.S. 693, 703-04, n. 17, 93 S.Ct. 1785, 1792-93, n. 17, 36 L.Ed.2d 596 (1973).

Section 1988 does not recognize or create the existence of an independent cause of action, and as such may not be used as the basis for asserting a civil rights violation. If plaintiffs are unable to independently establish a proper cause of action, as was the situation in the cases before this court, § 1988 will be of no assistance.

For these reasons, plaintiffs, claims based upon 42 U.S.C. § 1988 must fail.

42 U.S.C. §§ 1985 and 1986

These two sections must be addressed together inasmuch as § 1986 is dependent upon the existence of § 1985. Brown v. Chaffee, 612 F.2d 497, 502 (10th Cir.1979); Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir.1977).

A

For plaintiffs to have established a prima facie case under § 1985(3), they must have demonstrated by substantially competent evidence the existence of some racial or other class-based invidious discriminatory animus behind the actions of defendants. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

Upon being questioned specifically as to whether they were basing their claims on their race, sex, religion or national origin, each plaintiff responded in the negative. Having thereby admitted their claims were not based on these traditionally-protected or more clearly defined classes, plaintiffs had the burden to show they were members of some other legally-recognized class. It was plaintiffs’ claim they were members of a group or class who had opposed the political conduct of the defendants and as such had met the “class” requirement of § 1985(3).

Having heard the evidence, the court finds plaintiffs, although all were employees of the City of Kansas City, Kansas, were not members of a recognized class and they failed to show class-based discrimination sufficient to allow the invocation of § 1985(3) jurisdiction.

The court further notes that the “class” in which plaintiffs allege membership did not exist prior to the conduct of which plaintiffs complain. With regard to this, this court concurs with the opinion of Judge Frank Theis of this district in Silkwood v. Kerr-McGee Corp., 460 F.Supp. 399 (W.D.Okla.1978), wherein he stated:

“... this Court finds itself in agreement with the numerous courts who have rejected claims of class-based animus allegedly directed toward groups which did not tend to exist prior to the occurrence of the events set forth in the complaint and which tend to be defined by one particular activity or by plaintiff’s individual situation____” Id. at 407.

Plaintiffs also failed to demonstrate any discriminatory class-based animus on the part of the defendants and directed to the “class.” The language requiring intent to deprive equal protection or to deprive of equal privileges and immunities means that there must be some conspiracy aimed at deprivation of the equal enjoyment of rights secured by law to all. Griffin v. Breckenridge, supra, 403 U.S. at 88, 102, 91 S.Ct. at 1790, 1798. Plaintiffs produced no evidence that defendants had any knowledge or participation in the events of which plaintiffs complain.

B

As previously stated, the right to recovery under § 1986 is directly contingent upon the existence of a valid claim under § 1985. Brown v. Chaffee, supra; Taylor v. Nichols, supra.

This court, having determined that no cognizable claim lies under § 1985, must likewise find no valid claim was established under § 1986. Consequently, the court concludes, and so finds, that defendants are entitled to directed verdicts on plaintiffs’ claims asserted under §§ 1985 and 1986.

W U.S.C. § 1983

Plaintiffs also brought this action based upon violations of 42 U.S.C. § 1983. Essentially, plaintiffs claimed the actions taken against them denied them procedural due process and otherwise violated 42 U.S.C. § 1983.

The United States Constitution does not require, before an employee is terminated, that an opportunity for hearing be provided that employee unless it can be shown that the decision to terminate the employee in some manner deprived the employee of an interest in “liberty” or that he had a “property” interest in continued employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972).

To establish a property interest in continued employment, a person must have more than an abstract need or desire for it. There must be more than a unilateral expectation of such employment. There must be a legitimate claim of entitlement to it. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

In the instant case, plaintiffs had no written contracts, no tenure and no reasonable expectations of continued employment with the City of Kansas City, Kansas. Consequently, plaintiffs were deprived of no property interest and were not deprived of any procedural rights which could result in a § 1983 violation. These plaintiffs were employees at will and, as such, had no protected property interest in continued employment with the City of Kansas City, Kansas. The absence of any expectation of continued employment clearly defeats any procedural due process claim relied upon by plaintiffs. Moreover, the court finds that an adequate grievance procedure did exist, but that plaintiffs voluntarily chose not to pursue their grievances through the properly prescribed procedural steps.

Plaintiffs also alleged that rights secured to them by the First Amendment were violated by defendants when action was taken against them in their employment on the basis of political considerations.

In order to establish a prima facie case on this claim, plaintiffs had to establish that a motivating or substantial factor in defendants’ decision to terminate them was their failure to buy tickets or contribute to “The 83 Club.” Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir.1981).

The court finds plaintiffs failed to show that any of the activity regarding ticket sales or contributions to The 83 Club was tied in any manner to their resulting terminations. Plaintiffs failed to show that political considerations played any part, substantial or otherwise, in the selection process which was implemented to determine which employees would be laid-off. By failing to tie the political activity to the resultant lay-offs, plaintiffs failed to establish their § 1983 claims.

Although plaintiffs contended the evidence before the court established a case based on circumstantial evidence, and thus established a sufficiently submissible case to allow the action to proceed, the court finds the evidence was comprised of mere inference upon inference, and as such would dictate a jury verdict based purely upon speculation. It is a well established rule that “in order to warrant the submission of a crucial issue of fact to the jury for its determination, the evidence relating thereto must be based upon more than mere conjecture, speculation or surmise. It must rise above mere alternative possibilities. It must bring the theory upon which reliance is placed to the level and dignity of a reasonable probability.” Commercial Standard Ins. Co. v. Feaster, 259 F.2d 210, 213 (10th Cir.1958).

The court finds that when the evidence, viewed in the light most favorable to the non-moving party, is considered by the court, it leaves no room for any reasonable difference of opinion as to how the case should be decided, and that the action is one properly dismissed upon the motions of defendants for directed verdicts.

IT IS BY THE COURT THEREFORE ORDERED that defendants’ motions for directed verdicts are hereby granted.

IT IS FURTHER ORDERED that the date of this order will control the time for filing all post-trial motions.


author: PRENTICE H. MARSHALL, District Judge.

text:
    Frank M. BRIGGS, Petitioner, v. UNITED STATES PAROLE COMMISSION and Dennis Luther, Warden, MCC, Respondents..
    No. 84 C 1155.
    United States District Court, N.D. Illinois, E.D.
    May 18, 1984.

      Thomas Crooks, Chicago, 111., for petitioner.
    James J. Kubik, Asst. U.S. Atty., Chicago, 111., for respondents.
   MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

Petitioner Frank M. Briggs has filed a petition for writ of habeas corpus alleging that the United States Parole Commission impermissibly refused to advance his date of release from incarceration. Respondents have moved to dismiss; in part, the motion is essentially one for summary judgment, as both parties have submitted materials outside the pleadings.

Petitioner was convicted of conspiracy to commit arson, interstate transportation in aid of racketeering, and use of an instrumentality of interstate commerce to facilitate commission of arson in the Western District of Wisconsin on May 29, 1981. On July 30, 1981, he was sentenced to three consecutive terms of 18 months in the custody of the Attorney General, to be followed by three years probation. His conviction was affirmed on appeal. United States v. Briggs, 700 F.2d 408 (7th Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983).

Petitioner’s first hearing before the Parole Commission took place on June 16, 1982. The Parole Commission decided that petitioner should serve his full sentence, minus good time reduction. Affidavit of James C. Rogers, Exs. A, B. Petitioner appealed this decision. Id., Ex. C. The decision was affirmed on August 31, 1982. Id., Ex. D. On September 20, 1982, petitioner further appealed the decision to the National Appeals Board of the Parole Commission. Id., Ex. E. The appeal was denied on December 7, 1982, thqugh the reasons for the previous decision were modified. Id., Ex. F.

On December 6, 1983, petitioner had an interim parole hearing pursuant to 18 U.S.C. § 4208(h)(1) (1982) and 28 C.F.R. § 2.14 (1983). Petitioner has provided us with a tape recording of the hearing. The purpose of the hearing, as stated by one of the members of the hearing panel, was to consider whether there were any developments or changes that warranted reconsideration of the Commission’s earlier dedsion. Petitioner submitted numerous documentary exhibits and made an oral statement in support of his request that he be considered for “Superior Program Achievement,” see 28 C.F.R. § 2.60 (1983), a program which permitted the Commission to advance his release date. The panel agreed to take this into account, and retired to deliberate. In rendering the panel’s oral decision, the chairperson of the panel stated that

[although you do have the [sic] good institutional record, we are of the opinion that based on the severity of the offense plus the fact that your ... time served are [sic] well below the guidelines, we are not going to recommend Superior Program Achievement or advancing your date____

Memorandum in Opposition to Respondent’s Motion to Dismiss, Ex. B (tape recording; the above is transcribed from the recording).

Petitioner was notified at the hearing and in the hearing panel’s written decision of his right to appeal the decision. See Rogers Affidavit, Ex. H. However, petitioner did not appeal. Rather, he filed this lawsuit. Petitioner asserts that the Parole Commission violated its own regulations, acted arbitrarily and capriciously, and denied him equal protection of law, in refusing to recommend Superior Program Achievement because of the seriousness of his offense.

Respondents first argue that petitioner has failed to exhaust his administrative remedies by failing to appeal the December 1983 decision, or alternatively that petitioner’s deliberate bypass of the appeal process should bar him from relief here. Respondents agree that these requirements are not jurisdictional in nature. See Memorandum in Support of Respondents’ Motion to Dismiss at 5 (citing Jackson v. Carlson, 707 F.2d 943 (7th Cir.1983)). As the court noted in United States ex rel. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir.1973), rev’d on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), delays may make an administrative remedy inadequate. In his petition, which was filed pro se, petitioner stated that he was not pursuing further Parole Commission remedies “due to the time factor involved.” Petition for Writ of Habeas Corpus 113. Petitioner is due to be released in August of this year; it is possible that his request for early release would not be able to run the gamut of administrative appeals within that time. Respondents have not controverted petitioner’s suggestion that the Parole Commission’s in-house remedies may be inadequate, so for purposes of the present motion we cannot rule in their favor on the exhaustion or waiver defenses. We therefore turn to the merits.

The Superior Program Achievement regulations are found at 28 C.F.R. § 2.60 (1983). Section 2.60(a) states that prisoners who demonstrate superior program achievement may be considered for a limited advancement of their release date. In § 2.60(b), superior program achievement is defined as achievement in areas such as educational, vocational, industry, or counseling programs. Section 2.60(c) states that “[u]pon a finding of superior program achievement, a previously set presumptive date may be advanced” up to a maximum established in the regulation. In petitioner’s case, he would be eligible for an advancement of up to six months. See id. § 2.60(e).

It is plain from the face of the regulations that advancement of a prisoner’s release date is not mandatory even if the prisoner has shown superior program achievement. This is supported by the history of the regulation. The Parole Commission proposed to adopt the Superior Program Achievement regulations on May 30, 1979. See 44 Fed.Reg. 31026 (May 30, 1979). The statement of purpose accompanying the proposed regulation stated that the regulation “strikes a middle ground between the position that institutional performance should be the primary factor in deciding parole, and the position that it should play no role at all.” Id. at 81027. The Commission stated that it did not feel “that institutional factors can or should play the major role in the release decision. Statutorily, the Commission is required to give major consideration to the seriousness of the offense committed and to the risk the offender presents to society.” Id. It noted that studies had failed to show a consistent link between good behavior inside prison and good behavior after release. Id. The Commission concluded that “[c]onsequently, the traditional factors of severity of the crime and the inmate’s prior record remain paramount in the deliberations of the Commission.” Id

The parties have cited no case law interpreting the Superior Program Achievement regulations, nor have we found any. It appears clear to us from the wording of § 2.60(a) & (e) that advancement of a prisoner’s release date even after a finding of superior program achievement was intended to be left to the Parole Commission’s discretion: this is shown by the use of the word “may” in both subparagraphs. Further, we see nothing in the regulations themselves or in their history to indicate that the seriousness of a particular prisoner’s offense was intended to be left out of the decision whether to advance the prisoner’s release date. The most reasonable reading of the regulations, in light of their history, is that the Parole Commission is to balance the prisoner’s achievement against the other factors that enter into the decision whether to release on parole. And it is clear from the history of the regulations that the major factor in deciding whether to release an inmate before the expiration of his sentence is to remain the seriousness of his offense. We think that the regulation permits the Parole Commission to balance the inmate’s achievement against the seriousness of his offense and thus to deny advancement of the inmate’s release date due to the seriousness of his offense.

It is possible to read the Commission’s decision here as finding that petitioner’s achievement was not “superior” as defined in § 2.60(b) because of the seriousness of his offense. Such a finding might be questionable, particularly in light of petitioner’s excellent record while incarcerated, as the regulation appears to make the finding of achievement or non-achievement turn completely on factors relating to the inmate’s participation in programs. However, we think that a more reasonable reading is that the Commission decided that the seriousness of petitioner’s offense outweighed the considerations favoring early release. Though the oral decision is not entirely clear on this point, one must remember that it was made, for all practical purposes, off the top of the panel member’s head, and thus a lack of syntactical clarity is excusable. The panel’s written finding makes the basis for the decision quite clear: “[b]ased on the seriousness of the offense, the panel does not see a reason for a recommendation for earlier release.” Rogers Aff., Ex. G at 1-2. It is sufficient for present purposes that the oral decision reasonably may be construed as employing a similar balance. In the circumstances presented here, the Commission did not abuse its discretion in declining to advance petitioner’s release date.

Petitioner argues that since the seriousness of a prisoner’s offense is one factor used in setting the prisoner’s release date initially, there is no rational basis for using the same factor a second time to deny advancement of the release date. The cases petitioner cites in support of the argument that “doubling up” on a single factor is arbitrary, capricious, and irrational, however, are distinguishable from the present case. See Brack v. Nelson, 472 F.Supp. 569, 574 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144, 148-49 (M.D.Pa.1977); Lupo v. Norton, 371 F.Supp. 156, 162-63 (D.Conn.1974). In each of those cases what the court considered arbitrary was the use of the seriousness of the offense factor to set the initial guidelines for the length of a prisoner’s sentence and then again to deny release after the prisoner had served the time specified in the guidelines. In those cases, in essence, the seriousness of the prisoner’s offense had not changed, but what the authorities had previously believed warranted time served of X months was later believed to warrant time served of X + 1 months.

The present case is different. Here, as in the cited cases, the seriousness of petitioner’s offense was used to set his initial release date. However, the Parole Commission had not re-used that factor to extend that date. Rather, it had employed that factor as part of a balancing test to determine whether it is outweighed by other factors counseling in favor .of earlier release. That is different from using the same factor twice.

Petitioner also argues that the seriousness of the offense factor has no place in the Superior Program Achievement decision. Since the program only permits a limited advancement of the release date, petitioner argues, that factor should play no role in the decision. If petitioner were correct, we wonder how the decision whether to advance a release date under the Superior Program Achievement regulations would be made. It is clear from the wording of the regulations that advancement was not meant to be mandatory for all prisoners who exhibit superior program achievement; were that intended, § 2.60(a) & (c) would not contain the word “may.” The regulation plainly contemplates a balance between the inmate’s achievement and other factors. If the seriousness of the offense were not a permissible “other factor,” the regulation might well mean in practical effect that advancement of the release date is mandatory for all those exhibiting superior program achievement. Such was not intended by those who drafted the regulations. Rather, it is evident from the regulations’ history that seriousness of the offense was intended to be an element of the balance.

For the reasons stated above, the Parole Commission’s decision did not violate the Commission’s regulations, nor was it an abuse of discretion or arbitrary, capricious, or irrational. Nor did the decision violate petitioner’s equal protection rights. Equal protection consists of the “right to be free from invidious discrimination.” See Harris v. McRae, 448 U.S. 297, 322,100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980). There is nothing invidious in classifying those prisoners with more serious offenses differently from those with less serious offenses for purposes of parole or early release, if that was what the Commission did here.

Respondents’ motion to dismiss is granted, and petitioner’s petition for a writ of habeas corpus is dismissed. On the court’s motion, a certificate of probable cause is issued. 28 U.S.C. § 2253.

      . This habeas petition is pursuant to 28 U.S.C. § 2241 (1982). Rule 1(b) of the rules governing § 2254 cases, id. § 2254 rule 1(b), states that the § 2254 rules may be applied at the court’s discretion to habeas cases not within § 2254. Rule il states that the Federal Rules of Civil Procedure may be applied in habeas cases where not inconsistent with the rules. We hold that Fed. R.Civ.P. 12 and 56 are applicable here.

      . Respondents’ counsel orally waived the filing of a reply brief in a telephone call with our staff.

      . Some changes were made in the regulation after the Commission received comments from interested parties. See 44 Fed.Reg. 55002-05 (Sept. 24, 1979). However, the Commission’s statement accompanying the revised rule does not reveal any basic shift in the philosophy described above.


author: CAHN, District Judge.

text:
    Margaret ALONZO, Mario Alonzo, and Robert Dato, all individually and on behalf of all others similarly situated, Plaintiffs, v. BLUE CROSS OF GREATER PHILADELPHIA, Blue Cross of Western Pennsylvania, Capitol Blue Cross, Blue Cross of Lehigh Valley, Blue Shield of Pennsylvania, and Pennsylvania Psychological Association, Defendants.
    Civ. A. No. 83-5658.
    United States District Court, E.D. Pennsylvania.
    May 30, 1984.

      Edwin P. Smith, Jerome M. Dubyn, Dubyn & Smith, P.C., Philadelphia, Pa., for plaintiff.
    J. Tomlinson Fort, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Christopher K. Walters, Reed, Smith, Shaw & McClay, Jay H. Clavert, Jr., Eric Kraeutler, Wm. J. Thomas, Morgan, Lewis & Bockius, Robert M. Britton, Post & Schell, P.C., Philadelphia, Pa., Rod J. Pera, H. Lee Roussel, William M. Young, Jr., McNees, Wallace & Nurick, William H. Wood, Thomas E. Wood, Keefer, Wood, Allen & Rahal, Ralph Tive, Gregory H. Knight, Tive, Hetrick and Pierce, Harrisburg, Pa., Oldrich Foucek, III, Joseph P. Bubba, Butz, Hudders & Tallman, Allentown, Pa., Paul R. Friedman, Donald N. Bersoff, Ennis, Friedman, Bersoff & Ewing, Washington, D.C., for defendants.
   OPINION

CAHN, District Judge.

This is a class action for treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, alleging violations of section 1 of the Sherman Act, 15 U.S.C. § l. Various state law claims are also alleged. I have jurisdiction over this matter pursuant to 28 U.S.C. § 1337(a). Before me are motions by defendants to dismiss the action for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the action will be dismissed.

1. Facts

The facts, construed most favorably to the plaintiffs, are as follows. Named plaintiffs Margaret Alonzo and Mario Alonzo are joint subscribers to a prepaid health benefits plan administered by two defendants, Blue Cross of Greater Philadelphia and Pennsylvania Blue Shield. After obtaining treatment from a psychotherapist, Margaret Alonzo submitted claims to these defendants, and was reimbursed by Blue Cross of Greater Philadelphia for a portion of the services rendered by the psychotherapist. Subsequently, Blue Cross determined that Mrs. Alonzo had been reimbursed in error. An amount equal to the erroneous reimbursement was withheld as a set-off against the Alonzos’ joint account. As a result, Mario Alonzo, the husband of Margaret Alonzo, was denied payment for medical bills he had incurred.

Margaret Alonzo seeks to represent a class of subscribers to Blue Shield and Blue Cross in Pennsylvania, who have incurred costs for treatment by psychotherapists, but who have been denied reimbursement by the “Blue” defendants. Mario Alonzo seeks to represent a class of subscribers who are entitled to reimbursement under the terms of their subscriber contracts with defendants, but are refused payment because defendants’ practice is to claim a set-off against subscriber accounts for monies owed to the “Blues” by subscriber spouses or family members. Named plaintiff Robert Dato is a psychotherapist who is certified by a trade association, the National Association for the Advancement of Psychoanalysis, but is not licensed by the State of Pennsylvania. He seeks to represent a class of nonlicensed psychotherapists who are not now receiving payment from the Blue Cross and Blue Shield plans in Pennsylvania for providing mental health services to health plan subscribers.

Plaintiffs claim that from 1972 to the present, Pennsylvania Blue Shield, the named Blue Cross defendants, and the Pennsylvania Psychological Association, a psychologists’ trade association, together with unnamed co-conspirators, agreed and conspired to boycott psychotherapists. The purpose of the alleged boycott was to prevent psychotherapists from receiving compensation from the Blue Cross and Blue Shield defendants for services rendered to Blue Cross and Blue Shield subscribers in Pennsylvania. Plaintiffs allege that as a result of the conspiracy, psychologists, who are licensed by Pennsylvania under 63 Pa. 5. A. §§ 1201-1215, have gained an unlawful competitive advantage over psychotherapists, who are not licensed. Further, subscribers to the “Blue” plans in Pennsylvania have been “economically coerced to receive psychological services from psychologists to the exclusion and boycott of psychotherapists.” Complaint, ¶ 25, at 11-12. Plaintiffs interpret several Pennsylvania statutes to permit the “Blue” plans to reimburse subscribers for services of psychotherapists, and contend that the refusal of the plans to so reimburse is a “boycott” of psychotherapists and a conspiracy in restraint of trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. In addition, plaintiffs assert several pendent state law claims: breach of contract, libel and trespass.

II. Analysis

A. The Antitrust Claims

Counsel for plaintiffs bases his allegations of anti-trust violations upon the presumption that the state statutory scheme under which the “Blue” plans are permitted to operate allows the plans to offer subscriber contracts that cover the services of nonlicensed psychotherapists. Plaintiffs’ counsel has misinterpreted the relevant statutory provisions, however. Pennsylvania law permits only licensed professionals to participate in Blue Cross and Blue Shield health plans, and thus forbids the reimbursement requested by plaintiffs here.

1. The Statutory Scheme

The Professional Health Services Plan Act, 40 Pa.C.S.A. §§ 6301-6335, defines the types of prepaid health coverage that Pennsylvania Blue Shield is authorized to offer to subscribers. The Act provides: “A professional health services corporation shall not provide professional health services for its subscribers otherwise than through health service doctors, duly licensed to practice in their respective fields under the laws of this Commonwealth.” 40 Pa.C.S.A. § 6322(c) [emphasis added]. “Health services doctors” are defined in section 6302(a) of the Act as doctors of medicine and dental surgery, optometrists, osteopaths, podiatrists, chiropractors, and licensed physical therapists. Under sections 6322(c) and 6302(a), Pennsylvania Blue Shield was formerly authorized to provide mental health coverage only through doctors of medicine (i.e., psychiatrists), duly licensed to practice under Pennsylvania law.

In 1978 the Pennsylvania legislature enacted a “Freedom of Choice” law, 40 Pa. S.A. §§ 767-769, known as “Act 16,” applicable to insurance contracts generally and also to the health services plans offered by Blue Cross and Blue Shield, see 40 Pa.S.A. § 767(a)(3). Act 16 provides:

Whenever a policy, contract or certificate provides for reimbursement for any psychologically necessary service which is within those areas for which the psychologist is licensed pursuant to the act of March 23, 1972 (P.L. 136 No. 52) referred to as the Psychologists License Act, the insured ... shall be entitled to reimbursement for such service whether the service is performed by a physician or a psychologist operating within those areas for which he is licensed.

40 Pa.S.A. § 768 (emphasis added).

One of the effects of Act 16 was to expand the definition of “health service doctor” found in the Professional Health Services Plan Act to include psychologists licensed by the State of Pennsylvania under 63 Pa.S.A. §§ 1201-1215. Under Act 16, Pennsylvania Blue Shield is both authorized, and required, to cover the treatment of a Blue Shield subscriber by a licensed psychologist, if the subscriber’s contract covers psychologically necessary services, and the subscriber chooses to patronize a licensed psychologist rather than a psychiatrist for those services. Nothing in the Act effects any other change in the statutory scheme under which Blue Shield operates, by which Blue Shield is permitted to reimburse subscribers for medical services only if performed by statutorily enumerated professionals, all of whom are licensed by the State of Pennsylvania.

The psychotherapists that plaintiff Robert Dato seeks to represent are not licensed by the State of Pennsylvania; they are merely accredited by a trade association, the National Association for the Advancement of Psychoanalysis. Thus, under the statutory scheme outlined above, neither Pennsylvania Blue Shield, nor the Blue Cross defendants acting as agent on behalf of Blue Shield, is authorized to pay for the mental health services provided by plaintiff Dato or other psychotherapists.

Counsel for plaintiffs contends that psychotherapists are “exempt from licensure” under the Psychologists Licensing Act, 63 Pa.S.A. §§ 1201-1215. He further argues that the Pennsylvania legislature intended to extend Blue Shield coverage to psychotherapists’ services when it enacted the “Freedom of Choice” law, Act 16. The Psychologists Licensing Act provides:

It shall be unlawful for any person to engage in the practice of psychology or to offer or attempt to do so unless he shall first have obtained a license pursuant to this act, except ... (3) Nothing in this act shall be construed to prevent qualified members of other recognized professions from doing work of a psychological nature consistent with the training and the code of ethics of their respective professions.

63 Pa.S.A. § 1203. This section allows individuals like Robert Dato to offer psychological services without first obtaining a license from the state, as long as he does not hold himself out to the public as a “psychologist”. It similarly permits ministers, lawyers, and other professionals to do “work of a psychological nature” without first obtaining a license from the State of Pennsylvania. This type of work, however, does not fall within the Act 16 statutory definition of service reimbursable by Blue Shield, i.e., “psychologically necessary service which is within those areas for which the psychologist is licensed,” 40 Pa.S.A. § 768. Although psychotherapists may be permitted to practice without obtaining a license, they cannot be equated with licensed psychologists for purposes of the Blue Shield statutory scheme, and therefore Blue Shield is not authorized to reimburse subscribers for their services.

2. Applicable Legal Standards

The state statutory scheme here at issue clearly does not permit reimbursement to nonlicensed professionals. This case is thus different from other recent cases, in which the practices of Blue Shield programs in other states operating contrary to state law were held not immune from antitrust scrutiny. See Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 478 (4th Cir.1980) (while Virginia “Freedom of Choice” statute required payments to licensed psychologists, Blue Shield of Virginia and Southwestern Virginia refused to pay for psychologist services unless billed through a physician), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981); Ballard v. Blue Shield of Southern West Virginia, Inc., 543 F.2d 1075, 1079 (4th Cir.1976) (while West Virginia law specifically authorized Blue Shield to insure chiropractic treatment, Blue Shield refused to provide coverage), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977).

Although plaintiffs may be correct that the challenged practice gives licensed psychologists in Pennsylvania a competitive advantage over nonlicensed psychotherapists, the distinction between licensed and nonlicensed professionals imbedded in the Blue Shield statutory scheme is state action exempt from antitrust scrutiny, Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). The scope of the “state action” exemption has been clarified by the Supreme Court in a recent opinion:

[W]hen a state legislature adopts legislation, its actions constitute those of the State, [Parker v. Brown, 317 U.S.] at 351 [63 S.Ct. at 313], and ipso facto are exempt from the operation of the antitrust laws____ When the conduct is that of the sovereign itself ... the danger of unauthorized restraint of trade does not arise. Where the conduct at issue is in fact that of the state legislature, we need not address the issues of “clear articulation” [of state policy] and “active supervision” [by the state]____ [W]here the action complained of ... was that of the State itself, the action is exempt from antitrust liability regardless of the State’s motive in taking this action.

Hoover v. Ronwin, 466 U.S. 558, -, -, 104 S.Ct. 1989, 1995, 2001, 80 L.Ed.2d 590 (1984). Here, as in Hoover, the action challenged was taken by the state itself, and for that reason is not actionable under the antitrust laws.

B. The State Law Claims

Because the federal antitrust claims will be dismissed, under United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) the court has no subject matter jurisdiction to consider plaintiffs’ state law claims of trespass, libel and breach of contract.

For all of the above reasons, this action will be dismissed in its entirety.

      . Section 4 of the Clayton Act, 15 U.S.C. § 15, provides as follows:
      Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee____

      . Section 1 of the Sherman Act, 15 U.S.C. § 1, provides in pertinent part:
      Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

      . In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), I am required to accept as true all well-pleaded facts set forth in the complaint. Rogirt v. Bensalem

        Township, 616 F.2d 680, 685 & n. 14 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

      . Defendants Blue Cross of Greater Philadelphia, Blue Cross of Western Pennsylvania, Capitol Blue Cross, and Blue Cross of Lehigh Valley, are non-profit hospital plan corporations, authorized under 40 Pa.C.S.A. §§ 6101-6127 to provide "hospitalization and related health benefits” to their subscribers.

      . Defendant Blue Shield of Pennsylvania is a non-profit Professional Health Services Plan, authorized under 40 Pa.C.S.A. §§ 6301-6335 to provide prepaid outpatient health care benefits < to subscribers.

      . The result reached here turns upon an interpretation of Pennsylvania law. In general, abstention is proper in such cases when the relevant state law issue has not been addressed by the state's courts, see Propper v. Clark, 337 U.S. 472, 489, 69 S.Ct. 1333, 1343, 93 L.Ed. 1480 (1949). Abstention may appropriately be denied, however, where, as here, there is no ambiguity in the state statute. New Motor Vehicle Board v. Orrin W. Fox Co., 439 U.S. 96, 100 n. 3, 99 S.Ct. 403, 407 n. 3, 58 L.Ed.2d 361 (1978).

        . The various Blue Cross defendants, all hospital plan corporations operating under 40 Pa.C. S.A. §§ 6101-6127, are authorized by statute to provide only “hospitalization or related health benefits” to subscribers, 40 Pa.C.S.A. § 6101. Mrs. Alonzo does not allege that in obtaining the services of a psychotherapist, she incurred hospitalization-related expenses. The Blue Cross defendants urge this court to dismiss the claims against them on this basis. Plaintiffs have alleged, however, that Blue Cross of Greater Philadelphia is the entity that has administered the Major Medical contract under which they seek reimbursement for psychotherapists’ services. The precise relationship between the Blue Cross defendants and Pennsylvania Blue Shield in the provision of joint coverage is an issue of fact beyond the scope of the analysis this court may make in evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Because of the dismissal of all claims against the defendants on other grounds, I need not consider this issue.

      . That section provides:
      (a) This act shall apply to every group or individual policy, contract, or certificate issued thereunder, of health, or sickness, or accident insurance delivered or issued for delivery within the Commonwealth including but not limited to policies, contracts or certificates issued by:
      (3) Any professional health services plan corporation as defined in Chapter 63 of Title 40 Pa.C.S.A.

      . See 63 Pa.S.A. §§ 42.1-42.2 la (podiatrists); id., §§ 120-130b (dentists); id., §§ 244.1-244.12 (optometrists); id., §§ 271.1-271.18 (osteopaths); id., §§ 421.1-421.18 (doctors of medicine and surgery); id., §§ 601-624 (chiropractors); id., §§ 1201-1215 (psychologists); id., §§ 1301-1312 (physical therapists).

      . Counsel for plaintiffs incorrectly contends that this case is on “all fours” with the Supreme Court's opinion in Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982). In McCready, the challenged practice was Virginia Blue Shield’s refusal to reimburse subscribers for the cost of licensed psychologists' services unless billed through a physician, despite the existence of a Virginia statute requiring reimbursement. 457 U.S. at 468 & n. 2, 102 S.Ct. at 2542 & n. 2. In addition to the dissimilar fact situation, the only issue addressed in McCready was whether the plaintiff had standing to maintain an antitrust action against Blue Shield. Id. at 467, 102 S.Ct. at 2542. Defendants here do not contest the plaintiffs' standing. The holding of McCready
        thus has no bearing upon the disposition of the present case.

      . The holding that defendants’ conduct is exempt from antitrust liability under the "state action” doctrine of Parker v. Brown obviates the need to address the contention of some of the defendants that they are immune from liability under the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015.

      . Although the Supreme Court's opinion currently reads "exempt from antitrust immunity” (emphasis added), the Reporter of Decisions Office at the U.S. Supreme Court will substitute “liability” for "immunity” in future reprints of Hoover v. Ronwin.


author: RAFEEDIE, District Judge.

text:
    INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, INC., Plaintiff, v. CITY OF LOS ANGELES, a California Municipal Corporation; Emmett C. McCaughey, President of the Los Angeles Board of Airport Commissioners; Elizabeth K. Armstrong, Vice-President of the Los Angeles Board of Airport Commissioners; and Johnnie L. Cochran, Jr., Mary Lou Cunningham, and Samuel Greenberg, members of the Airport Commission, Defendants. CITY OF LOS ANGELES; the Board of Airport Commissioners of the City of Los Angeles, Plaintiffs, v. The INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, INC.; International Caucus of Labor Committees; Fusion Energy Foundation; Soldiers of the Cross of Christ; National Anti Drug Coalition, Defendants.
    Nos. CV 83-5229-ER, CV 84-0045-ER.
    United States District Court, C.D. California.
    June 29, 1984.

      Barry A. Fisher, Fisher & Moest, Los Angeles, Cal., for plaintiff in No. CV 83-5229-ER and defendant in No. CV 84-45-ER.
    David Liberman, Los Angeles, Cal., for plaintiff in No. CV 83-5229-ER.
    James R. Karpel, Asst. City Atty., Los Angeles, Cal., for plaintiff in No. CV 84-45-ER and defendant in No. CV 83-5229-ER.
    Joseph M. Elie, Engstrom, Lipscomb & Lack, Los Angeles, Cal., for defendant in No. CV 83-5229-ER.
    American Legal Ministries, David Llewellyn, Santa Ana, Cal., D. Mark Liberman, Culver City, Cal., for defendant in No. CV 84-45-ER.
   RAFEEDIE, District Judge.

On June 11,1984, the Motion for Summary Judgment of City of Los Angeles requesting declaratory and injunctive relief in both of the above-captioned consolidated matters came on for hearing. Robert C. Moest, attorney for the International Society for Krishna Consciousness, David L. Llewellyn, Jr., attorney for the Soldiers of the Cross of Christ; and Jeffrey S. Cohen, attorney for the Fusion Energy Foundation, National Anti-Drug Coalition and the International Caucus of Labor Committees opposed the City’s Motion for Summary Judgment. James R. Karpel represented the City parties.

Upon consideration of the papers submitted by the parties, the file in this case, their oral argument, and its own research, this Court does not find it possible to reach the merits presented by the summary judgment motion. For the reasons set out below, this Court has determined that it does not have subject matter jurisdiction over Case No. 84-0056-ER. This Court does not have jurisdiction over Case No. 83-5229-ER because there is no live controversy-

BACKGROUND

The first of the two consolidated cases was filed by the International Society of Krishna Consciousness (“ISKCON”) against the City. It was filed in state court on July 18, 1983, removed to the federal court August 12,1983, and a first amended complaint was filed October 24, 1983. The complaint alleges that a resolution passed by the Board of Airport Examiners forbidding “First Amendment activities by any individual and/or entity” at the Central Terminal Area of the Los Angeles International Airport (“LAX”) violates the first amendment of the federal constitution, § 1983, and article 1, §§ 2, 4, and 7 of the California constitution. Plaintiff seeks declaratory and injunctive relief. The City filed the second lawsuit against ISKCON, the International Caucus of Labor Committees, Fusion Energy Foundation, the National Drug Coalition, and the Soldiers of the Cross of Christ. The City seeks a declaration that the resolution is constitutional and that the listed defendants are violating the resolution, and an injunction forbidding them from violating the resolution in the future.

DISCUSSION

Does this Court have Subject Matter Jurisdiction Over the City’s Suit for Declaratory and Injunctive Relief?

The City claims that this Court has federal question jurisdiction over its suit, pursuant to 28 U.S.C. § 1331 (1984). But a federal court does not have federal question jurisdiction over a case in which the plaintiff is suing on a state law cause of action and the federal question only arises by way of the defendant’s defense or by the plaintiff’s rebuttal to the defendant’s defense. Applying that principle to the present case, all that the City would need to prove in an affirmative suit would be that the defendants) violated a state law. That the law is constitutional would only come in as a response to defendant’s objection that the state law is unconstitutional.

The Supreme Court recently dealt with this very issue. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), the Court posed the question whether a suit for a declaratory judgment that a state law was consistent with ERISA arises under federal law and answered the question as follows:

We think not. We have always interpreted what Shelly Oil [v. Phillips Petroleum Co.] called “the current of jurisdictional legislation since the Act of March 3, 1875,” 339 U.S. [667] at 673, 70 S.Ct. [876] at 879 [94 L.Ed. 1194 (1950) ] with an eye to practicality and necessity. “What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of causation ... a selective process which picks the substantial causes out of the web and lays the other ones aside.” Gully v. First National Bank, 299 U.S. [109] at 117-118, 57 S.Ct. [96] at 99-100 [81 L.Ed. 70 (1936)]. There are good reasons why the federal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law. States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the preemption questions such enforcement may raise are tested there.

Id. at 2852 (footnotes omitted) (emphasis added).

The City’s reply brief unintentionally supports the argument that it is not raising any federal question, except as a defense. The City states:

There can be no doubt that the controversy between the parties arises out of the federal constitutional and statutory law as well as involving state issues. All of the defendants have claimed that they have federally protected rights to conduct their distribution and soliciting activities in the terminal facilities at LAX.

City’s Reply Brief at 25-26.

The Court has not discovered, nor have the parties cited, a single case brought by a state, city or federal government seeking, before the law is enforced, a declaratory judgment that a law is constitutional, with the exception of Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911). Muskrat established the longstanding precedent that a federal court will not, before the law is applied, declare laws to be constitutional, because by doing so the court would issue advisory opinions.

The City contends that the consolidation saves it from dismissal. “The City’s position as plaintiff in this second case, rather than as a Cross-Complainant joining other necessary and interested parties, is merely because the second, separate suit was the easiest way to bring all necessary parties before the Court.” City’s Reply Brief at 26. But, the other groups are not necessary parties for ISKON’s suit that the resolution is unconstitutional as applied to ISK-CON and on its face because only ISKCON would be bound by the ruling if it were unfavorable.

Consolidation poses neither a practical nor a theoretical problem. All the circuits which have considered the question have said that consolidated cases retain their separate identities. Robinson v. Worthington, 544 F.Supp. 949 (N.D.Ala.1982) recites the applicable law:

A review of the law concerning consolidation quickly disabused the Court of the notion that actions somehow lose their separate identity upon consolidation. The ruling of the Supreme Court in regard to consolidation prior to the adoption of Rule 42(a) is still regarded as authoritative:
“Consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of parties, or make those who are parties in one suit parties in another.” Johnson v. Manhattan Railway Co., 289 U.S. 479, 496, 497, 53 S.Ct. 721, 727, 77 L.Ed. 1331 (1933).
“Thus the Courts hold that actions do not lose their separate identity because of consolidation.”

Id. at 952 (citations omitted).

Therefore, the City’s suit for declaratory and injunctive relief is dismissed for lack of subject matter jurisdiction for want of a federal question.

Does the Suit by ISKCON Raise a “Case of Controversy” Such That This Court Possesses Jurisdiction?

The jurisdiction of federal courts is limited to the adjudication of “cases or controversies” by Art. Ill, § 2, of the Constitution. The Declaratory Judgment Act, 28 U.S.C. § 2201 applies only to cases of actual controversy. Thus,

“the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

quoted in Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).

The standard is heightened by the fact that the plaintiffs seek to have this Court declare the resolution unconstitutional and enjoin its enforcement In such a case, it is especially important that the Court is certain that there is an actual case or controversy between the parties, as the Supreme Court explained in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (no case or controversy in suit seeking declaratory judgment on constitutionality of law banning sale of contraceptives when no indication that law would be enforced).

These considerations press with special urgency in cases challenging legislative action or state judicial action or state judicial action as repugnant to the Constitution. “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Ifederal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action ____ “This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here.

367 U.S. at 503, 81 S.Ct. at 1756 (citations omitted) (emphasis added).

The Supreme Court stated the mere existence of a panel statute constitutes insufficient grounds for an adjudication of its merit if “real threat of enforcement is wanting. Id. at 507, 81 S.Ct. at 1758. See also Western Mining Council, 643 F.2d at 627.

Furthermore, events can render moot actions which once presented a case or controversy. “Simply stated, a case is moot when the issues presented are no longer ‘live’ of when the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944,1951, 23 L.Ed.2d 491 (1969). As the Supreme Court instructed the district court in Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975):

The district court will find it desirable to examine the current enforcement scheme in order to determine whether, indeed, there is now a credible threat that petitioners ... might be arrested and charged with loitering. A genuine threat must be demonstrated if a case or controversy, within the meaning of Article III of the constitution and of the Declaratory Judgment Act, may be said to exist____ Further, the credible threat must be shown to be alive at each stage of the litigation.

421 U.S. at 434, 95 S.Ct. at 1696 (citations omitted).

ISKCON argues that there is no present case or controversy before this Court. Its amended complaint alleged that immediately after the resolution was passed, airport officials distributed copies of the resolution to ISKCON members and members of the public. While this may have created a case or controversy when this case was filed, there is none now. ISKCON states that its members have not been harrassed by airport officials. Additionally, the Los Angeles City Charter provides that the airport board “shall have power____to make and enforce all necessary rules and regulations governing the use and control of all municipal airports within the City of Los Angeles.” City Charter Art. XXIV, § 239. The provision goes on to state that “said regulations shall be approved by the Council by ordinance which shall prescribe the penalties for the violation of such rules and regulations.” Section 239.2(1) states that the general manager of the airport department “shall have the power and duty to enforce all orders, rules and regulations adopted by the Board.” The charter does not provide for the Board to pass resolutions, as it has in this case. Nor has the City Council ratified the Board’s resolution.

Further evidence that there is not case or controversy “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,” Maryland Casualty Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826, is found in the City’s answer to ISKCON’s complaint. The city states “defendants, and each of them, deny that Resolution No. 13787 adopted by the Board has been enforced against the plaintiff or against anyone” ¶ 5, and “defendants, and each of them, allege that pursuant to City Charter § 239 all rules must be approved by the City Council.” 116.

The City does not substantively address this argument in its reply, except to cite the standard and to observe that ISK-CON initiated the suit. That does not change the preceding analysis — the requirement of an actual controversy is jurisdictional and as such, can be raised by any party or the Court sua sponte at any time.

This Court finds that the question whether the resolution violates the first amendment is not an actual case or controversy. There is not sufficient adversity between the parties to make determination of the federal constitutional question appropriate. This case was therefore improvidently removed and must be remanded to state court.

      . The Board adopted the resolution July 13, 1983. It stated in pertinent part:
      NOW, THEREFORE, BE IT RESOLVED by the Board of Airport Commissioners that the Central Terminal Area at Los Angeles International Airport is not open for First Amendment activities by any individual and/or entity:

      BE IT FURTHER RESOLVED that the Central Terminal Area at Los Angeles International Airport is only to be used for the promotion and accommodation of air commerce and air navigation or uses incidental thereto unless the Board of Airport Commissioners makes the appropriate findings pursuant to Charter Section 238.8 that a portion of said area is not currently required for the promotion or accommodation of air navigation or uses incidental thereto; and
      BE IT FURTHER RESOLVED that after the effective date of this Resolution, if any individual and/or entity seeks to engage in First Amendment activities within the Central Terminal Area at Los Angeles International Airport, said individual and/or entity shall be deemed to be acting in contravention of the stated policy of the Board of Airport Commissioners in reference to the uses permitted within the Central Terminal Area at Los Angeles International Airport; and
      BE IT FURTHER RESOLVED that if any individual or entity engaged in First Amendment activities within the Central Terminal Area at Los Angeles International Airport, the City Attorney of the City of Los Angeles is directed to institute appropriate litigation against such individual and/or entity to ensure compliance with this policy statement of the Board of Airport Commissioners; and
      BE IT FURTHER RESOLVED if any entity or individual seeks to engage in First Amendment activities in the vicinity of the Central Terminal Area, those activities must be conducted only on the sidewalks in front of the ticketing buildings and in such a manner so as to not interfere with other persons.

      . The precise question in Franchise Tax Board was whether a case was properly removed from state court. The federal question analysis, however, is the same in both removed cases and cases originally brought in federal courts.

      . The procedural problems which would accompany the City’s suit for a declaratory judgment support declining to issue such declarations. "All persons who have an interest in the determination of the questions raised in a declaratory judgment suit should be before the Court.” Diamond Shamrock Corp. v. Lumberman’s Mutual Casualty Co., 416 F.2d 707, 710 (7th Cir.1969). The City lists other organizations besides the five named defendants who requested permission to solicit at LAX, and the defendants have mentioned still more groups who they claim have solicited at LAX. These other groups would surely be interested parties in a case brought by the City to prove that the law is unconstitutional, yet they are not parties in this action. Including all interested parties would make this an unmanageable lawsuit. But, unless such groups are included, they would not be bound by the resolution of this case. Were the Court to find the resolution constitutional, this issue would have to be litigated again if the resolution were enforced against nonparties and they contested the constitutionality.

      . Were the City the party arguing that no controversy exists, the Court's determination could differ. When a defendant has enforced a statute in the past, or has reasonably threatened to enforce it, the defendant normally has a heavy burden showing that it will not enforce the law in the future. See Rabinowitz v. Board of Junior College, 507 F.2d 1255 (7th Cir.1974). But here ISKCON — who brought the suit — states that it is not worried about prosecution, which strongly indicates that there is no case or controversy. Indeed, at oral argument the City’s attorney stated that the City wanted a ruling on the constitutionality of the resolution and a determination whether LAX was a public forum before enforcing the resolution.