author: CURTIN, Chief Judge. .

text:
    UNITED STATES of America, et al., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants.
    No. CIV-79-989C.
    United States District Court, W.D. New York.
    Nov. 28, 1984.

      U.S. Dept, of Justice, Environmental Enforcement Section, Land and Natural Resources Div. (Bruce J. Berger, Washington, D.C., of counsel), for plaintiff, United States of America.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City (Ann Goldweber, Asst. New York State Atty. Gen., New York City, of counsel), for plaintiff, State of N.Y.
    Wald, Harkrader & Ross, Washington, D.G. (Thomas. H. Truitt, Washington, D.C., of counsel), for defendant Occidental Chemical Corp.
    Seeger, Steele & Galeziowski, Buffalo, N.Y. (Lewis Steele, Buffalo, N.Y., of counsel), for plaintiff-intervenor College Heights Property Owners Ass’n.
    Grossman, Levine & Civiletto, Niagara Falls, N.Y. (Richard G. Berger, Niagara Falls, N.Y., of counsel), for plaintiff-intervenor Martelli.
   CURTIN, Chief Judge. .

Plaintiff United States and defendant Occidental have filed a joint motion seeking an order from this court prohibiting the disclosure of proposals made during the negotiations directed at settling a dispute concerning the Requisite Remedial Technology [RRT] to be implemented at the Hyde Park Landfill. The motion is opposed principally by plaintiff New York State and also by plaintiff-intervenors College Heights Property Owners Association and Norman Martelli.

Counsel for all of the parties mentioned above appeared in open court to present their views on this important matter. As will be explained below, the order sought by the United States and Occidental is actually a rather narrow prohibition on disclosure. All raw data and facts relating to proposed remedies are and will continue to be available for public scrutiny. However, the court declines at this time to issue the confidentiality order sought here.

Today’s order should not be viewed as an acceptance of the legal arguments urged by those opposing this motion. Indeed, the court rejects the contention that the Settlement Agreement expressly requires the disclosure of the communications which the United States and Occidental seek to keep secret here.

Nor should today’s order be viewed as an endorsement of New York’s position that all communications made during settlement negotiations should be made public. The United States and Occidental, quite understandably, have questioned the wisdom and utility of this policy. The court’s decision is based upon its view that this and other like cases will be before it for many years. The steps taken now should be short ones, from which changes in direction can be made if the practicalities of this lawsuit indicate that new directions are necessary. It is in this spirit and with this small step that the court has decided to decline to move in the direction of court-ordered secrecy.

This environmental lawsuit was commenced in December of 1979. The case was settled in 1981 as a result of the concerted efforts and cooperative attitudes of the parties to the Settlement Agreement. The court approved the settlement in 1982 after an extensive hearing. See United States v. Hooker Chemicals and Plastics Corp., 540 F.Supp. 1067 (W.D.N.Y.1982).

The written agreement is an extensive and detailed document which calls for the implementation of a long-term remedial program for cleaning up and containing the many tons of dangerous chemicals that have been deposited into the Hyde Park Landfill. Part of the process involves a study by Occidental of the vertical and areal extent of chemical contamination. Settlement Agreement [SA], Addendum I, ¶ C. Occidental has undertaken that study.

The data collected by Occidental indicated that there has been significant chemical migration from the landfill site. Accordingly, Occidental initiated a study to determine what RRT is necessary to address the migration problem.

Occidental submitted its RRT proposal to the Environmental Protection Agency [EPA] and New York State on May 8,1984. It has not attempted to keep this submission confidential. This submission was made pursuant to Addendum I, ¶ C(8) of the Settlement Agreement. Since the RRT study was a document “submitted by [Occidental] to EPA/State pursuant to this Judgment,” it was and is subject to public inspection. SA p. 30, 1f 20. The data underlying the study is also open to public scrutiny.

The Settlement Agreement required the federal and State governments to respond to Occidental’s RRT study within 120 days after its submission if they believed that the study was in any way “inconsistent with any term or condition” of the Settlement Agreement. SA Addendum I, U C(9). Without written objections from the governments, the Occidental study would have been deemed consistent with the terms of the settlement.

However, the federal and State governments gave Occidental written notice of their objections to the RRT study on September 5, 1984. The Agreement requires that the governments’ objections give specific reasons therefor, and “a detailed description of what further actions” are thought to be required. SA Addendum I, IT C(9)(b)(i), (ii).

Implicitly, the next step to take under the Agreement is negotiation among Occidental, EPA, and New York State concerning a possible accord on what RRT will be implemented at the landfill site. This implication stems from the Agreement’s provision that:

If, within 120 days, or longer if so stipulated, [Occidental] does not notify EPA/State in writing of its agreement to implement the further action described in EPA/State’s written notice, either party may petition the Court, within 30 days after the expiration of the period for [Occidental] to notify EPA/State, seeking implementation of further action as contained in EPA/State’s written advice.

SA Addendum I, ¶ C(9)(d). See also 11 C(9)(c), concerning the binding effect of an agreement on RRT programs.

With respect to the present RRT matter, the time for negotiations expires in early January, 1985. Within 30 days of the expiration of this period, “either party may petition the Court ... seeking implementation of further action as contained in EPA/State’s written advice.” Id.

The present controversy over confidentiality pertains only to this period of negotiations. However, because of the attitude of the State, similar problems will probably arise in the future during settlement negotiations. The United States and Occidental seek a court order preventing the disclosure of the proposals concerning RRT made during the give-and-take of negotiations. They also seek to prevent the disclosure of responses to proposals and evaluations of such proposals. The United States and Hooker point out that proposals, responses, and evaluations are usually made by experts. The argument is that the exchange of ideas will be less candid if the documents reflecting the proposals were to be released at any time.

It must be noted that all raw data upon which the proposals are based are available for public inspection. The present motion seeks only to keep confidential the proposals and related matters produced during the negotiations directed at mediating the differences in the RRT programs suggested by Occidental and the governments. Also, the order sought here would contain a provision under which any party to the negotiations could petition the court for an order permitting the release of whatever items the party seeks to have released.

Those opposing the order urge that the Settlement Agreement requires that all communications made during negotiations be freely disclosed. Accordingly, they argue that the Agreement expressly prohibits the issuance of the order sought here.

This argument is not persuasive. The applicable language is as follows:

All information and documents submitted by [Occidental] to EPA/State pursuant to this Judgment shall be subject to public inspection unless identified and deemed as confidential by [Occidental] in conformance with 40 C.F.R. Part 2 or applicable New York State law.

SA p. 30, 1120 (emphasis added). The words “pursuant to this Judgment” refer to such information and documents which are necessarily incidental to Occidental’s compliance with the terms of the agreement. Thus, for example, the submissions made by Occidental to EPA/New York State pursuant to Addendum 1,11 C(7)(a), (b) must be subject to public inspection under paragraph 20 (page 30) of the Agreement.

A broader meaning of the disclosure provision is not indicated by its own language or by other relevant language in the Agreement. The provisions outlining the process whereby RRT programs are developed do not mention negotiations, the manner in which they are to be conducted, or the exchange of information during their course.

This omission should not be ignored. If RRT negotiation proposals were intended to be covered by paragraph 20, this intention should have been expressed by a direct reference to the negotiation process. Moreover, the court cannot ignore the fact that the negotiations that led to the settlement of this lawsuit were strictly confidential. While the State’s previous (and successful) commitment to confidentiality does not bind it here, the existence of such a policy at the time paragraph 20 was drafted is, absent clear and direct language to the contrary, an indication that paragraph 20 does not apply to negotiation proposals.

The court declines to rule upon the legality of the proposed confidentiality order under the first amendment. Seattle Times C. v. Rhinehart, — U.S. -, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), is a plausible basis for such an order. However, its applicability to the present case will not be determined now.

By declining to issue a confidentiality order, the court does not order New York State to abide by its contemplated policy of complete disclosure. This policy is clearly offensive to the federal government and to Occidental. Further attempts at settling the dispute should be made without seeking a ruling from the court.

If continued disagreement over confidentiality prevents the parties from reaching an agreement on RRT, then it may be necessary for the court to hold an evidentiary hearing. All parties, including New York State, should recognize that the delay caused by continued disagreement is harmful to the citizens of this State.

The motion of the United States and Occidental for a confidentiality order is denied.

So ordered.


source: Caselaw Access Project

author: HUNGATE, District Judge.

license: Public Domain

text:
    Bryan ELKINS, et al., Plaintiffs, v. Kevin KASSING, Defendant.
    No. 82-2133C(3).
    United States District Court, E.D. Missouri.
    Nov. 28, 1984.

      Richard Shaikewitz, Alton, 111., for plaintiffs.
    Samuel T. Vandover, James E. Godfrey, Sam P. Rynearson, Stephen D. Hoyne, St. Louis, Mo., Frank Anzalone, Clayton, Mo., for defendant.
   MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court for a decision on the merits of the claims of plaintiffs Bryan Elkins and Godelieve Steenbergen against defendant Kevin Kassing for personal injuries alleged to have occurred as a result of an automobile accident. Issues of liability and damages are disputed by defendant.

The Court held a nonjury trial on October 30, 1984, allowing the parties a full opportunity to present evidence, at the conclusion of which the Court announced a finding of liability in favor of plaintiffs and against defendant. Having considered the pleadings, trial testimony, exhibits, stipulations, and memoranda of the parties, the Court hereby makes and enters the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff Elkins is a resident of Alton, Illinois; and plaintiff Steenbergen is a resident of the Netherlands.

2. Defendant Kassing is a resident of Webster County, Missouri.

3. On June 24, 1982, at approximately 9:45 p.m., Bryan Elkins and Godelieve Steenbergen were returning to Alton, Illinois, after spending the earlier part of the evening in St. Louis County, Missouri.

4. Elkins was driving and Steenbergen was a passenger in the front seat as their automobile proceeded in a northerly direction along a two-lane stretch of U.S. Route 67 approximately one-half mile north of Lindbergh Boulevard in St. Louis County, Missouri. At the same time, Kevin Kassing was driving an automobile with two passengers in a southerly direction along the same portion of Route 67.

5. Kassing was driving behind a pickup truck which was driven by Wayne Daggett and his family. Kassing repeatedly pulled up to within a few feet of the rear of the Daggett vehicle, dropped back, and pulled up close again. At times, Kassing’s automobile was so close to the Daggett vehicle that the Daggetts could not see Kassing’s headlights.

6. Kassing had been drinking beer and a mixture of gin and lemonade throughout the evening and manifested the symptoms of intoxication. Immediately prior to the accident, Kassing was driving erratically and at excessive speeds, and the passengers in his car had admonished him to be more careful.

7. Kassing then pulled close to the Daggett vehicle once again, and without signaling or looking for signs of oncoming traffic, turned into the oncoming lane of traffic to pass the Daggetts. When Kassing turned into the oncoming northerly lane, the automobile being driven by Elkins was one or one-half a car length in front of the Kassing vehicle, and both were travelling at speeds in excess of forty miles per hour. The automobiles collided head-on, severely injuring the plaintiffs and killing one of the passengers riding with Kassing.

8. As a result of the collision, Elkins suffered a penetrating wound in his right knee that entered into the knee cavity itself. He also suffered a laceration of his right wrist and his forehead. The cut on his face required plastic surgery and he suffered a mild concussion.

9. The bottom of Elkins’ foot was severely lacerated, exposing fractures of the second, third, fourth, and fifth metatarsal heads. He suffered a fracture of the cuboid and cunneiform, the outer tarsal area of the foot or midfoot. He also suffered a fracture of his right hip acteabulum which is where the head of the hip fits. He further suffered a fracture of the right proximal fibula between the knee and the ankle.

10. Elkins underwent several operations, including one to drill stainless steel rods or wires into his foot to hold the fractured metatarsals in place. The second metatarsal was shattered into many pieces.

11. Elkins presently has a clicking in his knee that may require an arthogram. He continues to have pain in his ankle that will require further tests and treatment. Surgery may be required to insert elastic joints in his foot, particularly the shattered second metatarsal. In addition, further treatment of the now irregular joints in his foot will require doctors visits, x-rays, special shoes, and costs for other tests.

12. Elkins suffered a great deal of pain from his injuries and throughout the period of recovery from the accident. He continues to suffer pain daily in his ankle and foot. He is only twenty-one years old and has a permanent partial disability of his foot and he will continue to suffer pain for the rest of his life. Before the accident, he was active in school events such as plays, and he was a talented dancer. He is now, however, subdued and unable to participate in dancing and other such activities as before.

13. Elkins was hospitalized for approximately three weeks as a result of the injuries he sustained in the accident, at a cost of $10,109.00. He incurred additional medical expenses and doctors’ bills of $4,115.00. He was also working two jobs at the time and as a result of the accident, lost wages of $2,333.00.

14. As a result of the collision, Steenbergen suffered lacerations to all areas of her face, and deep lacerations to her right knee and right thigh. Plastic surgery was performed both in this country and in the Netherlands to reduce the amount of scarring; however, she retains permanent scarring. Many of her teeth were also broken off and extensive dental work, including the capping of many teeth, was done while she was hospitalized.

15. Steenbergen suffered a dislocation of the right hip ball from its socket, and the hip socket itself was shattered into many pieces. It was necessary for the doctors to operate and attempt to reassemble her hip like a “jigsaw puzzle.” Numerous screws were used to hold the pieces of her hip socket together. Nevertheless, the repaired joint resembles a round ball in a square socket, according to her doctor.

16. Steenbergen also suffered severe injuries to her left knee. The lower end of her left thigh bone was shattered and exposed. It was necessary for her doctors to operate and release the tendon from below her kneecap to the upper leg bone. As her knee healed, adhesions developed within the joint. To permit movement again, she was hospitalized, anaesthetized, and the knee was manipulated to break the binding effect of the adhesions.

17. Throughout Steenbergen’s stay in Christian Northeast hospital from June 25, 1982, to September 16, 1982, she was kept in traction by means of pins in her lower extremities. She developed a urinary tract infection and breathing problems; her internal organs stopped functioning, requiring the use of a gastric nasal suction for a great deal of her stay; and her wounds were left open to facilitate healing from the inside out. For the entire stay, she could not turn over, move, or change positions. She was in great pain and discomfort throughout this hospitalization.

18. Steenbergen’s medical treatment continued when she returned to the Netherlands. Her condition was such that, after being released from Christian Northeast Hospital, she had to be transported by stretcher and in the company of the head orthopedic nurse of the hospital to a hospital in the Netherlands. She was then hospitalized for over sixty days for additional surgery and rehabilitation.

19. Once out of the hospital in the Netherlands, Steenbergen could not perform her job as a waitress, or work at Christmas and during the summer as she had previously. She had to remain out of school for a year. Her family has no automobile and she has always relied upon bicycling and walking for transportation. In addition, she was athletic and liked to run, swim, and dance. Now walking and cycling cause her pain and she can only do either for short periods. She had to rely on taxi service on a daily basis while recuperating from her injuries at home in the Netherlands.

20. Steenbergen is now twenty-one years old, and the effects of her injuries will last for the rest of her life. She has taken pain medication daily since the accident and she will suffer pain for the rest of her life. The type of employment she will be able to enter into will be permanently restricted in that she will not be able to enter into work that will require standing, stooping, or kneeling.

21. Steenbergen’s right hip and left knee will become arthritic. She will require hip and knee replacement surgery in the future. In addition, because she is only twenty-one years old, it is unlikely that any replacement surgery will last for her lifetime, which means additional surgery will be necessary, including the possibility of hip and/or knee fusion which would make the joints solid and immobile.

22. Steenbergen’s hospital, doctor, and other medical bills while in Christian Northeast Hospital total $40,965.70. She was subsequently hospitalized in the Netherlands for sixty-six days and underwent extensive outpatient treatment for her injuries. Defendant, however, objects to the introduction of Dutch hospital and medical bills plaintiffs sought to put into evidence through Steenbergen’s mother only.

Conclusions of Law

1. The Court has jurisdiction over this cause pursuant to 28 U.S.C. § 1332.

2. The Court finds that defendant Kassing was operating his automobile while under the influence of intoxicating liquors and in a careless manner. Kassing failed to exercise due care when he turned his automobile into the oncoming lane of traffic to pass the Daggett vehicle. Kassing’s negligence caused the resulting collision with the automobile driven by Elkins which caused plaintiffs severe, painful, and permanent injuries.

3. The Court finds that Elkins did not have sufficient opportunity to react in such a manner that he could have avoided the collision. Accordingly, the defendant is liable for the whole amount of the damages suffered by the plaintiffs as a result of his negligence.

4. The Court finds that Elkins suffered $16,557.00 in damages for hospital and medical expenses and lost wages.

5. Defendant’s objection to the introduction of the Dutch hospital and medical records proffered by Steenbergen’s mother will be sustained, as plaintiffs did not present the records’ custodian or another qualified witness. Fed.R.Evid. 803(6); 28 U.S.C. § 1732. Accordingly, those expenses will not be considered, and the Court finds that Steenbergen suffered a total of $40,965.70 in damages for hospital and medical expenses.

6. There is no exact measure or table in Missouri for determining damages for pain and suffering. See Graeff v. Baptist Temple of Springfield, 576 S.W.2d 291 (Mo.1978). The Court has carefully considered in the case of each plaintiff the nature, extent, and severity of their injuries; their pain and suffering; diminished earning capacity; awards in similar cases; inflation and economic conditions; and the permanency of their injuries and disabilities combined with future pain and suffering, along with the youth of both plaintiffs. Id. at 309; Fravel v. Burlington Northern R.R., 671 S.W.2d 339 (Mo.App.1984).

Accordingly, judgment will be entered for plaintiff Elkins in the amoünt of $85,-000; and for plaintiff Steenbergen in the amount of $1,000,000.


author: WILLIAM T. HART, District Judge.

text:
    CITIZENS FOR JOHN W. MOORE PARTY, John W. Moore and Willie Anderson, Plaintiffs, v. BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., Defendants.
    No. 82 C 5901.
    United States District Court, N.D. Illinois, E.D.
    Nov. 28, 1984.

      Susan Bandes, Harvey Grossman, Chicago, 111., for plaintiffs.
    Aldus S. Mitchell, Michael Levinson, Charles R. Bernardini, Donald F. Hemmesch, Jr., Boodell, Sears, Sugrue, Giambolvo & Crowley, James M. Scanlon, State Bd. of Elections, Chicago, 111., for defendants.
   MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

WILLIAM T. HART, District Judge.

This is a civil rights action for declaratory and injunctive relief, brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1651, 2201-2202. Plaintiffs challenge the constitutionality of the actions, on August 24, 1982, of the defendant Board of Election Commissioners of the City of Chicago (the “Board”) and its members in holding insufficient the nominating petitions of plaintiff John W. Moore Party and plaintiff candidate John W. Moore. Plaintiffs further challenge the constitutionality of § 10-4 of the Illinois Election Code. Ill.Rev.Stat. 1981, ch. 46, § 10-4. Based on that provision, the Board invalidated some of plaintiffs’ new political party nominating petitions for the office of Representative in the Illinois General Assembly at the November 2,1982 general election, as they were circulated by a person who previously circulated established political party nominating petitions for the office of Illinois State Senator at the March 16, 1982 primary election.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1343(a)(3) and 1343(a)(4) in that plaintiffs seek to redress the deprivation, under color of state law, of rights secured to them by the Constitution of the United States, including the First and Fourteenth Amendments. The fact that the election has passed does not moot the issues presented in the complaint. Declaratory relief may still be granted. Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1283, n. 8, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756, n. 5, 93 S.Ct. 1245, 1249, n. 5, 36 L.Ed.2d 1 (1973).

Plaintiffs filed this action on September 24, 1982. On October 2, 1982 plaintiffs appeared before the Court in support of their motion for a temporary restraining order and preliminary injunction declaring unconstitutional § 10-4 of the Illinois Election Code and requiring defendants to validate nominating petitions for plaintiff Moore as a candidate for the office of representative in the General Assembly and to cause his name to be printed on the November 2, 1982 ballot. After considering the motion and materials filed by the parties and hearing oral argument, the Court concluded that plaintiffs had failed to seek equitable relief in a timely fashion in the context of an election case and had failed to show a reasonable likelihood of success on the merits. Accordingly, injunctive relief was denied.

William Anderson joined this action individually as a plaintiff and on behalf of all others similarly situated who desired to vote for plaintiff Moore. However, no motion to certify a class was made and this action proceeded to trial as an individual action.

Plaintiffs waived their claims against Stanley Kusper and Taylor Pouncey and their motion to dismiss the action as to them is hereby granted.

FINDINGS OF FACT

On September 4, 1984 the pretrial order was approved. The pretrial order included a stipulation of uncontested facts which the Court adopts as findings of fact as follows:

1. Plaintiff Citizens for John W. Moore Party (“Moore Party”) is an unincorporated association with its principal office in Chicago, Illinois.

2. The Moore Party sought to form a new political party in the Thirty-First Representative District and to nominate John W. Moore (“Moore”), its party chairman, as its candidate for Representative in the Illinois General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

3. Plaintiff Moore is a United States citizen over twenty-one years of age who resided in the Thirty-First Representative District for over two years by the time of the November 2, 1982 General Election.

4. Plaintiff Moore sought to run as a candidate of the Moore Party for the office of Representative in the General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

5. Plaintiff Willie Anderson (“Anderson”) is a United States citizen over eighteen years of age who is registered to vote in the Thirty-First Representative District.

6. Plaintiff Anderson desired to vote for Moore, the candidate of the Moore Party, for the office of Representative in the Illinois General Assembly for the Thirty-First Representative District in the November 2, 1982 General Election.

7. Defendants Michael E. Lavelle (“Lavelle”); James R. Nolan (“Nolan”) and Corneal A. Davis (“Davis”) are members of and comprise the Board of Election Commissioners for the City of Chicago (“Chicago Board”). Defendant Lavelle is chairman of said Chicago Board. Said defendants were responsible under the Illinois Election Code (Ill.Rev.Stat.1981, ch. 46, § 1-1 et seq.) for determining the validity of nominating petitions of new political parties and of persons seeking to become candidates for election to the office of Representative in the General Assembly for the Thirty-First Representative District for the November 2, 1982 General Election and for printing the names of all candidates running for office in the November 2, 1982 General Election from a territory either partially or wholly within the City of Chicago. In addition, said defendants conducted and declared the results of said election.

8. Defendants J. Phil Gilbert; Michael J. Hamblet; John W. Countryman; Richard A. Cowen; Carolyn R. Eyre; Joshua Johnson; John L. Lanigan and Teresa M. Petrone are members of and comprise the Illinois State Board of Elections. The Illinois State Board of Elections was required by law to certify to the County Clerk, the names of the candidates for election with respect to the general election held in November of 1982. Because the Board of Election Commissioners for the City of Chicago determined that the plaintiff Citizens for John W. Moore Party and its candidate John W. Moore did not have sufficient signatures on its petition to qualify for the 1982 election for State Representative for the Thirty-First Representative District, the Illinois State Board of Elections did not so certify the candidacy of John W. Moore for the office of Representative in the General Assembly.

9. Taylor Pouncey (“Pouncey”) is the person who objected to the validity of plaintiffs’ nominating petitions and thus initiated the proceedings before the defendant Board and the enforcement of the statute against which plaintiffs herein complain. Pouncey was the nominee of the Democratic Party for election to the office that Moore sought.

10. Plaintiffs Moore Party and Moore timely filed nominating petitions purporting to contain 3,829 valid signatures.

11. Pouncey timely filed objections to said nominating petitions. Among the deficiencies in the nominating petitions alleged by Pouncey was the following:

John W. Moore circulated Petitions for Nomination for the Democratic Party in December, 1981 for candidates to be elected at the November 2, 1982 general election and circulated sheets of the Petition to form Citizens for John W. Moore in violation of Section 10-4, the Illinois Election Code. More particularly, John W. Moore circulated sheets numbered (numbers specified) in the Petition improperly and the 975 signatures on those Petition Sheets are invalid because of an improper circulator.

12. At the hearing before the defendant Chicago Board, plaintiffs Moore Party and Moore, inter alia, moved to strike the objections to the petition sheets circulated by plaintiff Moore on numerous factual and constitutional grounds.

13. At the hearing before the defendant Chicago Board, uncontroverted evidence was introduced that plaintiff Moore had circulated petitions seeking the Democratic Party nomination of himself for the office of State Senator for the Sixteenth Legislative District at the March 16, 1982 Primary Election. Further uncontroverted evidence was introduced that, in or around April of 1982, plaintiff Moore circulated new political party petition sheets seeking to place the Citizens for John W. Moore Party on the November 2, 1982 general election ballot for the office of Representative in the General Assembly for the Thirty-First Representative District. Plaintiff John W. Moore was said party’s candidate for Representative.

14. Defendant Chicago Board denied plaintiffs’ motions to strike the objections to the petitions circulated by Moore and, on August 24, 1982, issued a written opinion finding that the Moore party’s nominating petition was invalid in that it contained an insufficient number of signatures to qualify the plaintiff Moore Party and plaintiff Moore for access to the ballot as a candidate for the office of Representative in the General Assembly for the Thirty-First Representative District for the November 2, 1982 general election.

15. As a result of the defendant Chicago Board’s actions, the plaintiff Moore and the plaintiff Moore Party did not appear on the ballot for the November 2,1982 general election. But for the defendant Chicago Board’s ruling invalidating petition sheets circulated by the candidate himself (containing 975 otherwise valid signatures), the nominating petitions would have contained the 1500 signatures required to place the names of the Moore Party and the candidate Moore on the ballot.

16. In the cases of “Big James” Phipps, Case No. 80 EB 3 and James “Skip” Burrell, Case No. 80 EB 4, both decided on December 27, 1979, the Chicago Board, in sustaining the candidate’s Motions to Strike Paragraphs 5 and 6 of Objector’s Petitions, cited the following reasons for its decision:

Paragraph [5, 6] of the Objector’s Petition relies on the prohibition in Section 10-4 of the Election Code against the circulator of an independent candidate’s petition from also circulating a petition for a candidate for a political party to be voted upon at the next Primary or General Election. The prohibitions contained in Section 10-4 are susceptible to varying interpretations. Moreover, there is no evidence in the record as to when in point of time the petitions (independent as well as political party) were circulated. Accordingly, to strike the signatures on petition sheets in question would violate the judicial standard of the electoral review enunciated in Briscoe v. Kusper, 435 F.2d 1046 (7th Cir.1971).

17. In Marcus v. Nimrod, No. 82 CO EB 3, before the County Electoral Board, that Board held:

Paragraph Eight of Objector’s Petition alleges that certain sheets should not be counted in that the circulators of some of the sheets had previously circulated petition sheets for candidates of other political parties. This Electoral Board finds that there is no statutory or case law prohibition against one circulating a nominating petition for a candidate for the primary election and then circulating a petition to form a new political party and to nominate another candidate for a different office for a different election, to wit, the General Election to be held on November 2, 1982, and that such finding is consistent with previous holdings of the City of Chicago Municipal Officers Electoral Board.
Therefore, Paragraph Eight is hereby stricken and overruled.

18. A political party which at the last election in any legislative district polled more than five per cent of the entire vote cast within such district for the election of officers to serve the district is an “established political party” within the meaning of Article 10 as to such district. Section 8-2 defines “political party” as:

a political party which, at the next preceding election for governor, polled at least five per cent of the entire vote cast in the State.

(§ 10-2).

19. Candidates of established political parties for the office of Representative in the General Assembly are nominated at primary elections. (§ 8-1 et seq.).

20. Persons seeking established party nominations for state legislative office qualify for the primary election ballot by, inter alia, filing nominating petitions 99-92 days prior to the Primary Election. (§ 8-9).

21. Petitions supporting the candidacy of persons seeking established political party nominations must be circulated and attested to by a registered voter of the political division in which the candidate seeks office. (§ 7-10).

22. Independent (non-party) candidates and candidates of “new” (non-established) political parties for the office of Representative in the General Assembly are nominated by petition only and stand for election at the General Election. (§§ 10-1 et seq.).

23. Independent (non-party) candidates for the office of Representative in the General Assembly present their nominating petitions at the same time as established party candidates for the same office. (§ 10-3).

24. Petitions to form a new political party and to nominate candidates for the office of Representative in the General Assembly of such a party file their nominating petitions 99-92 days prior to the General Election. (§ 10-6).

25. Petitions supporting the candidacy of independent (non-party) and new (non-established) political party candidates for the office of Representative in the General Assembly must be circulated and attested to by a registered voter of the political division in which the candidate seeks office. (§ 10-4).

26. Certificates of nomination and nomination papers, being filed as required by the Illinois Election Code and being in apparent conformity with the provisions of the Code, are deemed to be valid unless an objection thereto is filed. (§ 10-8).

27. Nothing in Article 7 of the Illinois Election Code prohibits the same person from circulating nominating petitions for candidates of more than one established political party. (§ 7 et seq.).

28. Section 10-4 prohibits a new party candidate from circulating petitions for himself in the general election if he:

a. circulated petitions for himself as an established party candidate for the same office in the primary; or
b. circulated petitions for himself as an established party candidate for a different office in the primary; or
c. circulated petitions for an established party or independent candidate to be voted upon at the primary or general election.

29. Section 10-4 prohibits a new party candidate who lost as an established political party candidate in the primary for the same office or a different political office from using as circulators for the general election supporters who:

a. circulated petitions for him in the primary; or
b. circulated petitions for another established party independent, or new party candidate to be voted upon at the next primary or general election.

30. Section 10-4 prohibits supporters of a new party candidate from circulating new party petitions if they:

a. circulated petitions for the same person as an established party candidate for the same office or a different office in the primary; or
b. circulated petitions for another established party, independent or new party candidate for the same office or a different office to be voted upon at the next primary or general election.

31. “Running for Office: A Candidate’s Guide,” prepared by the defendant State Board of Elections for the 1980 elections, states on page 15:

Article 10 of the Illinois Election Code explains in detail how to seek office in Illinois as an Independent; and states on page 17:

Article 10 of the Illinois Election Code deals with new political parties — how they are formed and how their candidates get on the general election ballot.

32. The language of § 10-4 of the Illinois Election Code, on its face, does not prohibit persons from circulating or certifying petitions for more than one independent candidate to be voted upon at the next general election.

33. The State Board caused to be prepared, printed and published a document entitled Running For Office, A Candidate’s Guide (1980) which states, on page 3 that:

Petition Circulator
sj: Hs * s¡« * sfc
(c) may not circulate for more than one party; nor for more than one party and one independent candidate in same election.

34. The State Board caused to be prepared, printed and published a document entitled A Candidate’s Guide for 1982 Elections which contains a section (pages 3-8) devoted to “Preparing and Filing Nomination Papers” and a statement therein which reads in part:

All candidates for public office in Illinois — whether they are established party candidates, candidates of new parties or independents — must carefully follow the law when filing their nominating papers.
* ' * * * * *
The following is a step-by-step outline of the proper way for a candidate to meet these filing requirements.
II. Petition Circulator
* * * * * *
b. May not circulate for more than one party (Chap. 46, Art. 10-4); may not circulate more than one independent’s petition for each office or elected (Chap. 46, Art. 10-4); may not circulate for an independent candidate or candidates in addition to a political party candidate in the same election (Chap. 46, Art. 10-4).”

35. The State Board caused to be prepared, printed and published a document entitled A Candidate’s Guide for 1983 Elections which contains a statement at page 6:

“2. Petition Circulator
* * * sk * *
b. A petition circulator may not circulate for more than one for one party and for one independent candidate in the same election; and may not circulate for more than one independent candidate for each office. (Chapter 46, Secs. 10-3 and 10-4).”

36. Section 10-2 of The Election Code defines the term “political party,” as used in Article 10, to mean any “ ‘established political party’ and also any political group which undertakes to form an established political party in the manner provided for in Article 10.”

In addition, the Court makes the following findings of fact based on the evidence submitted.

37. Both the Sixteenth Legislative District and the Thirty-first Representative District are in the Englewood Community Area of Chicago, Illinois.

38. Plaintiffs were required to obtain 1,500 signatures to nominate Moore as a new party candidate for the 31st Representative District. Plaintiffs actually submitted 3,829 signatures collected by Moore and six circulators. Moore alone obtained 975 signatures out of the 3,289 signatures submitted. The Board invalidated those signatures obtained by Moore because of the circulator restriction in § 10-4. The Board also invalidated an additional 1,493 signatures for reasons unrelated to § 10-4. Consequently, the Board accepted as valid only 1,361 of the 3,829 signatures submitted to nominate Moore.

39. Moore was unaware of the circulator provision in § 10-4.

40. Plaintiffs failed to offer sufficient evidence to establish that an additional 139 valid signatures could not have been obtained because of a limited pool of circulators.

OPINION AND CONCLUSIONS OF LAW

Ballot access restrictions on voters and candidates implicate fundamental constitutional rights. Anderson v. Celebrezzi, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Dunn v. Blumstein, 405 U.S. 330, 336-37, 92 S.Ct. 995, 999-1000, 31 L.Ed.2d 274 (1972); Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 534-35, 11 L.Ed.2d 481 (1964). Restrictions on access to the ballot burden the right of individuals to associate for the advancement of political beliefs and the right of voters to cast their votes effectively. In Anderson the Supreme Court outlined the analytical process a court must pursue to resolve the merits of such constitutional challenges:

It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiffs seek to vindicate. It then must identify and evaluate the precise interests put forward by the state as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it must also consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547.

Plaintiffs make two basic arguments. First, they contend that the challenged provision of § 10-4 violates the Equal Protection Clause of the Fourteenth Amendment because it applies only to new political parties and independent candidates. Second, even if § 10-4 does apply to established political parties as well as to new political parties and independent candidates, plaintiffs contend that the defendants have not shown that the state has a compelling interest which justifies the burdens imposed by § 10-4 on the First and Fourteenth Amendment rights of new political parties, candidates and voters.

I. The Equal Protection Claims

[2] Plaintiffs’ argument that § 10-4 violates the Equal Protection Clause rests on their interpretation of the provision as applicable only to new parties and independent candidates. This construction, however, is not supported by an examination of Article 10. Article 19 is broader than plaintiffs claim and is interrelated to Articles 7 and 8. Article 10 provides for the manner in which established political parties are created. The provisions of this Article also govern the filing and hearing of objections to nomination papers filed pursuant to Articles 7 and 8 which apply to established political parties, as well as those filed pursuant to Article 10.

Moreover, § 10-2 provides that the term “political party,” as used in Article 10, shall include “any established political party,” defined as any party receiving over 5% of the vote cast for any elective office. Thus § 10-4, in prohibiting a person from circulating nominating petitions for candidates of more than one “political party” or for an independent candidate in addition to a “political party” was expressly and specifically intended to apply to both established and new political parties.

The State Board of Elections has published several documents and pamphlets which are used as candidates’ guides. It has consistently interpreted the circulator restriction provision in § 10-4 to apply to all political parties and has never made the distinction between established political parties and new political parties and independents suggested by the plaintiffs.

The fact that the Board of Election Commissioners of the City of Chicago may have decided two cases contrary to the position taken by the State Board does not give rise to a situation found to exist in Briscoe v. Kusper, 435 F.2d 1046 (7th Cir.1970) (unannounced change in election board policy violates due process). There is some distinction between this ease and the Phipps and Burrell cases, but of greater importance is the fact that the statutory language is clear and the State Board has consistently advised candidates that the circulator provision applies to all circulators. Accordingly, there is no invidious discrimination between established political parties and new parties or independent candidates. Plaintiffs’ Equal Protection claim is rejected.

II. The First and Fourteenth Amendment Claims

Plaintiff Moore testified that during the summer of 1981 he decided to become a Democratic candidate in the March, 1982 primary election for the office of State Senator for the Sixteenth Legislative District. Moore had voted in past Democratic primaries and had been a candidate in the 1980 Democratic primary for representative in the General Assembly. Moore and his supporters circulated petitions for the office of State Senator. However, before the primary he withdrew his name for the nomination.

Moore and his supporters then decided to form a new political party and circulate petitions for Moore’s candidacy in the general election for the office of Representative in the General Assembly for the Thirty-first Legislative District. Both districts are in the Englewood community. Because Moore and some of his supporters circulated petitions on his behalf, some of the signatures were invalidated. Moore was required to submit 1,500 signatures. He submitted 8,829 signatures. However, due to the circulator provision and other unrelated defects only 1,361 signatures were valid.

Although Moore testified, presumably in support of his free speech and association claims, that his interest lay outside of the Democratic party, there is a question as to whether his interests were outside of that party when he chose to abandon the party and run as a member of a new party. In any event, he was not prohibited by the Election Code from running as a new party candidate.

The state may regulate the conduct of each political party on the ballot and may insist that intra-party competition be settled before the general election. American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974); Bendinger v. Ogilvie, 335 F.Supp. 572 (N.D.Ill.1971). The circulator provision is a rational method of regulating such contests in order to prevent abuse, party splintering, factionalism, and voter confusion.

The circulator provision is designed to provide stability. Voter confusion can easily occur (here in the same area) if circulators are allowed to switch sides in the same campaign. Abuse or at least confusion can occur if professional circulators serve competing interests espousing divergent views. Just as voters may be limited to nominating one candidate or supporting one party in a primary election, and candidates may be limited to running under the banner of one party, so too are circulators, whose importance to a political party or campaign is significant, limited to campaigning on behalf of one political party or independent candidate in the same election. The circulator restriction provision is a permissible integral part of an overall legislative scheme to regulate elections.

The burden to First and Fourteenth Amendment rights involved is the task of obtaining petition circulators who have not already circulated petitions for another party in the same election. Moore stated this would have been difficult. Moore also stated that he was unaware of the requirement. The question is whether the requirement of obtaining different circulators would have been unduly burdensome. However, there is insufficient evidence to support a finding that obtaining alternative circulators would have been too great a burden. Moore did not attempt to find other circulators. The petitions submitted contained twice the number of signatures required. Plaintiffs submitted 1,361 valid signatures and needed only 139 additional signatures to have Moore’s name placed on the ballot. This evidence does not prove that there was a shortage of circulators or that the burden imposed outweighs the statutory objectives and benefits. Cf. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974).

The plaintiffs’ First Amendment associational rights were not unduly burdened. The statute did not prevent Moore’s candidacy. Therefore the circulator restriction does not mandate strict construction although it would survive such a test. The statute requires that circulators make a choice of political parties and remain with that party or independent candidate throughout an election. This is not an unconstitutional burden.

Accordingly, this Court finds the issues in favor of the defendants and against the plaintiffs and dismisses this case on the merits.

      . The relevant portion of § 10-4 states:
      Provided, further, that no person shall circulate or certify petitions for candidates of more than one political party, or for an independent candidate or candidates in addition to one political party, to be voted upon at the next primary or general election.

      . In re Phipps, 80 E.B. 3 (1984); In re Burrell, 80 E.B. 1979). According to the Board’s decisions, the circulator provision was not enforced because the Board could not tell which petitions were obtained first.


author: HULL, District Judge.

text:
    UNITED STATES of America v. Ronald L. DAUGHERTY and Thomas E. Daugherty, Individually and d/b/a Daugherty & Daugherty Construction Co., Inc., and Daugherty Brothers Construction, Inc.; Daugherty & Daugherty Construction Co., Inc. and Daugherty Brothers Construction, Inc.
    No. CIV. 3-84-12.
    United States District Court, E.D. Tennessee, N.D.
    Dec. 3, 1984.

      Robert S. More, Sp. Asst. U.S. Atty., U.S. Dept, of the Interior, Knoxville, Tenn., for plaintiff.
    Charles Wagner, Knoxville, Tenn., for defendants.
   MEMORANDUM

HULL, District Judge.

Pursuant to the Surface Mining Control and Reclamation Act of 1977 [the Act], 30 U.S.C. §§ 1201-1328 (Supp.1984), plaintiff brought a civil action for collection of civil penalties assessed against Daugherty and Daugherty Construction, Inc. [hereinafter D & D]; Daugherty Brothers Construction, Inc. [hereinafter DBC]; Ronald L. Daugherty, individually and doing business as DBC; and Thomas E. Daugherty, individually and doing business as D & D. By order of the Court entered August 7, 1984 [No. 43], summary judgment for plaintiff was granted as to D & D and DBC. The case is now before the Court on cross-motions for summary judgment on the issue of the liability of the individual defendants for the corporate debt.

Both D & D and DBC were assessed civil penalties for surface mining violations in 1979 and 1980. Plaintiff seeks to “pierce the corporate veil” and hold defendants individually liable for the corporate debt on several theories. First, plaintiff contends that under the “identity theory” of piercing the corporate veil Ronald Daugherty is liable for the corporate debt because (1) he was the sole shareholder, director and stockholder of DBC; (2) he conducted the business of the corporation in violation of the bylaws; (3) he exercised exclusive control of the corporation and acted without authority; and (4) he used corporate property for personal business. Second, plaintiff contends that under the “alter ego” theory of piercing the corporate veil, defendant Thomas E. Daugherty is liable for the corporate debt because (1) he conducted the business of the corporation in violation of the bylaws; (2) he exercised dominant control of the corporation; (3) no stock dividend was paid; and (4) he loaned money to the corporation and guaranteed the debts of the corporation. Third, plaintiff argues that defendant Thomas E. Daugherty is liable for the corporate debt because D & D was a foreign corporation not qualified to do business in Tennessee.

The Court first will address plaintiff’s theories of liability with respect to defendant Thomas Daugherty. This Court previously has addressed the issue whether under Tennessee law a shareholder, officer, or director of a foreign corporation not qualified to do business in Tennessee is liable for a corporate debt, arising out of a transaction of business in the state. In United States v. Ryan, Civ. No. 3-83-130 (E.D.Tenn. Sep. 28, 1984), this Court held that a shareholder, officer, or director of a nonqualifying foreign corporation is not liable for the corporate debt. The Court reasoned that enactment of the Tennessee General Corporation Act, Tenn.Code Ann. §§ 48-101 to 48-1407, specifically sections 48-1106(1), (3), abrogated pre-Corporation Act case law which held the shareholder, director, or officer of a nonqualifying corporation liable for the corporate debt. Although the Tennessee courts have not addressed the issue, the decision is consistent with the decisions of courts of states which have adopted corporation acts similar to the Tennessee act. See e.g., National Ass’n of Credit Management v. Burke, 645 P.2d 1323, 1325, 26 (Colo.App.1982); Mysels v. Barry, 332 So.2d 38 (Fla.App. 1976); McAteer v. Menzel Building Co., Inc., 300 N.E.2d 583, 13 Ill.App.3d 394 (1973). Thus, the failure of D & D to qualify to do business in Tennessee does not subject Thomas Daugherty to liability for the corporate debt.

The question whether Thomas Daugherty may be held liable for the corporation debt under the “alter ego” theory of piercing the corporate veil must be determined with reference to the law of Kentucky because D & D was incorporated in that state. Kentucky courts generally have displayed an aversion to any disregard of the corporate entity. Thermothrift Industries, Inc. v. Mono-Therm Insulation Systems, Inc., 450 F.Supp. 398, 405 (W.D.Ky.1978). However, the Kentucky courts have stated that, under the alter ego theory, where there is such a unity of ownership that the corporate separateness has ceased and treatment as separate entities would sanction fraud and promote injustice, the corporate entity should be disregarded. White v. Winchester Land Development Corp., 584 S.W.2d 56 (Ky.App. 1979). The following factors must be considered in determining whether disregard of the corporate entity would be appropriate: (1) undercapitalization; (2) failure to observe corporate formalities; (3) nonpayment or overpayment of dividends; (4) siphoning of funds by majority shareholders; and (5) guarantee of corporate liabilities by major shareholders. Id. at 62.

The record in this case discloses that D & D was incorporated in Kentucky in 1966 (Affidavit of Thomas E. Daugherty, No. 15, [hereinafter TED Aff.]). One thousand shares of stock were issued and subscribed, Thomas Daugherty owning 500 shares and Gene Daugherty owning 500 shares. (Id.). In 1971 D & D redeemed the stock of Gene Daugherty, making Thomas Daugherty the sole shareholder. The bylaws required three directors and officers. D & D operated in compliance with the bylaws until 1973 when only two officers and directors were elected (TED. Aff. at 2). Thomas Daugherty served as a director and president, and Lee Ann Philips served as a director and secretary-treasurer and was also an officer-administrative employee. (Id.). Until 1981 the corporation held annual meetings of the shareholders and board of directors and occasionally held special meetings. Minutes of these meetings were recorded. The corporate charter was revoked in 1982. (TED Aff.). Prior to revocation of the charter, the corporation conducted a coal mining business and had an office in Oneida, Tennessee, which it shared with another corporation. (Deposition of Thomas E. Daugherty at 7, [hereinafter TED Depo.]). The corporation employed a secretary, a foreman, defendant Daugherty and occasionally his son. (Id. at 6-9). The bylaws authorized the president to supervise and control the affairs of the corporation. (Bylaws of D & D, Art. IY, § 4). As president, Thomas Daugherty made day to day management decisions. (TED. Depo. at 9). He received no money from the corporation other than a salary. (Id. at 12). No dividend was paid. (Id.). He borrowed money to loan to the corporation when the corporation could not otherwise obtain a loan. (Id. at 13-14). The corporation executed promissory notes for the loans. (Id.). All property owned by the corporation, except perhaps a corporate automobile, was used only for corporate business. (Id. at 15-18). The corporate bank account was not used for personal funds. (Id. at 18).

Based on the foregoing description of the corporate activity, the Court must determine, in accordance with the factors previously set forth, whether D & D was the alter ego of Thomas Daugherty. First, there is no proof of undercapitalization. Second, corporate formalities were generally observed. Failure to elect the required number of directors is a de mini-mus deviation from the corporate formalities. Under Kentucky law, the bylaws may be amended by the board of directors. Ky. Rev.Stat. 271A.135 (1981). If failure to amend the bylaws to conform with the conduct of business was a violation of the statute, a penalty is prescribed. Ky.Rev. Stat. § 271A.640(2) (1981). However, the general rule is that the bylaws may be waived. See 18 Ani.Jur.2d, Corporations § 173 (1965). Third, no dividends were paid. Fourth, no funds were siphoned or commingled. Fifth, Thomas Daugherty borrowed money to loan to the corporation when the corporation could not otherwise obtain funds. Weighing these factors, the Court finds insufficient grounds to disregard the corporate entity. D & D was a close corporation and of necessity the control of the corporation was primarily vested in Thomas Daugherty. However, corporate formalities were observed, and the corporation was operated as a separate and distinct entity. The record discloses no fraud. Thus, defendant Thomas Daugherty may not be held liable for the corporate debt.

The final issue for determination is whether defendant Ronald Daugherty is liable for the corporate debt of DBC, a Tennessee corporation. The Tennessee courts clearly have adopted the “instrumentality rule” to pierce the corporate veil where a subsidiary company is a mere instrumentality for the parent company. Under the instrumentality rule the corporate veil will be pierced where there is: (1) parental domination of the finances, policy, and business practice; (2) use of the domination to commit fraud or other wrong; and (3) proximate cause connecting the wrong with injury to the plaintiff. Continental Bankers Life Ins. Co. v. Bank of Alamo, 578 S.W.2d 625 (Tenn.1979). However, the rule with regard to piercing the corporate veil in the case of a sole shareholder and a corporation is less clear. In Oak Ridge Auto Repair Service v. City Finance Co., 57 Tenn.App. 707, 425 S.W.2d 620 (1967), perm. to app. den. Aug. 7, 1967, the Court held that the sole shareholder was liable for the corporate debt where the “meager record” indicated that the corporation was at most a mere instrumentality of the shareholder. The opinion fails to discuss, however, what factors caused the corporation to be a mere instrumentality of the shareholder. In another case with rather unusual circumstances the Court held that the corporate entity would be disregarded to render justice. Fidelity Trust Co. v. Service Laundry Co., 160 Tenn. (7 Smith) 57, 22 S.W.2d 6 (1929). It further has been held that where the sole shareholder, officer and director had not treated the corporate assets as his own and no fraud had been committed, the corporate veil could not be pierced. Kopper Glo Fuel, Inc. v. Island Lake Coal Co., 436 F.Supp. 91 (E.D.Tenn.1977). The Court believes that all the surrounding circumstances must be considered in determining whether the corporation was a mere instrumentality of the shareholder. Factors to be considered are: (1) inadequate capitalization; (2) fraud; (3) commingling of funds; and (4) failure to follow corporate formalities.

The record discloses that DBC was incorporated in Tennessee in 1973. (Affidavit of Richard Daugherty, No. 14, [hereinafter RD Aff.], at 2). One thousand shares of stock were issued and subscribed, Richard Daugherty owning 500 shares and Troy Daugherty owning 500 shares. (Id.). In 1976 Richard Daugherty bought Troy Daugherty’s stock and became the sole shareholder. (Id.). The bylaws provided for three officers (with one person allowed to serve simultaneously in two offices, with the exception of president) and not less than two directors. (By-laws of DBC, Art. Ill, § 1; Art. IV, § 1). The bylaws were observed until 1976, when Ronald Daugherty was elected sole director and president/secretary. (Defendant Ronald L. Daugherty’s Answers to Plaintiff’s First Set of Interrogatories, [hereinafter RD Interrogs.], at 5). Through 1980 the corporation held annual and special meetings of the directors and shareholders and the minutes of these meetings were recorded. The charter was revoked in 1983. (RD Aff. at 3). Before the charter was revoked the corporation operated from an office in Oneida, Tennessee. (Deposition of Ronald Dougherty, [hereinafter RD Depo.], at 8). DBC employed a secretary, a foreman, and Ronald Daugherty. (Id. at 9-11). Ronald Daugherty managed the day to day operation of the business with help from his foreman. (Id. at 9-11). Ronald Daugherty received as compensation only a salary. (Id.). Ronald Daugherty never received any loans from or made loans to the corporation. (Id. at 12). No corporate property, except for a corporation vehicle, was used for personal business (Id. at 12-18). The corporate bank accounts were never used for personal funds or to pay personal obligations. (Id. at 14). In 1979 a transfer of corporate indebtedness was made to Róndale, Inc., a business in which Ronald Daugherty owned a 25% interest. (Id. at 14-17).

Considering the circumstances as a whole, the Court cannot, find that DBC was a mere instrumentality of Ronald Daugherty. Because DBC was a close corporation, out of necessity Ronald Daugherty made the controlling corporate decisions. However, under the bylaws, as president, he was authorized to supervise the affairs of the company. (By-laws, Art. IV, § 3). Plaintiff says that because Ronald Daugherty conducted the business of DBC in violation of the bylaws requiring at least two directors and three officers, the actions of Ronald Daugherty were without authority and subject him to liability for the corporate debt under Tennessee Code Annotated § 48-1-405 (1984). This Court has held that section 48-1-405 is inapplicable where the corporation has been duly incorporated and is in legal existence. United States v. Phillips, Civ. No. 3-84-157, unpublished slip op. (E.D.Tenn. Aug. 28, 1984). The corporate action taken without the requisite number of officers and directors may have been ultra vires; but under the Tennessee Code such action is not invalid and such lack of capacity may be asserted only by certain parties in specific situations. See Tenn.Code Ann. § 48-1-405 (1984). Further, where all the shares are owned by one shareholder, the corporation is required to have only one director. Tenn.Code Ann. § 48-l-802(a)(l) (1984). To the extent that the bylaws provide for more than one director and officer, the bylaws may be waived. See 18 Am.Jur.2d, Corporations, § 173 (1965). The record discloses that DBC was operated as a separate and distinct entity. There is no proof of commingling of funds or fraud or other improper purpose. The corporate formalities observed. The mere fact that Ronald Daugherty was the sole shareholder, director and officer is insufficient grounds to disregard the corporate entity. Kopper Glo Fuel, Inc. v. Island Lake Coal Co., 436 F.Supp. 91 (E.D.Tenn.1977).

For the foregoing reasons, plaintiffs motion for summary judgment is DENIED and defendants’ motion for summary judgment is GRANTED.

Order Accordingly.

      . D & D was incorporated in Kentucky. Affidavit of Thomas E. Daugherty, No. 15, at 2.

      . In Fidelity Trust Co. v. Service Laundry Co., 160 Tenn. (7 Smith) 57, 22 S.W.2d 6 (1929), the testatrix directed the executor to cancel the indebtedness of her nephews but if one nephew was indebted and the other was not, the executor was to pay the nonindebted nephew a sum equal to the debt. The court held that a note of a private business corporation owned by the nephew payable to the testatrix was a debt of the nephew because cancellation of the debt would inure to his benefit.

      . Apparently even though the corporation has only one shareholder and one director, it is required to have a president and a secretary, not the same person. Tenn.Code Ann. § 48-1-811 (1984). Thus, the action of a corporation not in compliance with the statute may be ultra vires. Again, as stated in the text, such action though ultra vires is not invalid and may not be asserted by plaintiff herein. See Tenn.Code Ann. § 48-1-405 (1984).


author: SPELLMAN, District Judge.

text:
    Terry Wayne ROGERS, Plaintiff, v. FIRESTONE TIRE AND RUBBER CO. a foreign corporation, and Fruehauf Corporation, a foreign corporation, Defendants/Third Party Plaintiffs, v. BIRMINGHAM MANUFACTURING CO., INC., an Alabama corporation, Third Party Defendant.
    No. 82-1335-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Dec. 3, 1984.

      John S. Seligman, Miami, Fla., for plaintiff.
    Preddy, Kutner & Hardy, Rodd R. Buell, Miami, Fla., for defendants/third party plaintiffs.
   MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS THIRD PARTY COMPLAINT

SPELLMAN, District Judge.

On June 5, 1984 Defendant Fruehauf filed a Third Party Complaint against Birmingham Manufacturing Co. Inc. (“Birmingham”). The Third Party Complaint alleged that Birmingham designed and manufactured the trailer which was ordered through Fruehauf by Hobbs Trailers and resold to Hatch. Fruehauf claims that Birmingham owed it a duty to properly design and manufacture the trailers, and in the event plaintiff, Rogers, succeeds in his litigation, then Fruehauf is entitled to indemnification from the third party defendant, Birmingham. On August 20,1984 Birmingham moved to dismiss the Third Party Complaint and Quash Service of Process.

The third party plaintiff, Fruehauf, relied on Florida’s Long Arm Statute § 48.193 in asserting this Court’s jurisdiction. Section 48.193 reads:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(b) Commits a tortious act within this state.
>}C }}s Sjc Sfc Sfc
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of injury either:
1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury; or
2. Products, materials, or things processed, serviced or manufactured by the defendant anywhere where used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

Section 48.193 became effective July 1, 1973. Neither this section, nor its predecessor which became effective July 1, 1970, may be applied retroactively to allow service as to an alleged wrongful act or omission committed before the enactment of the statute. See Mac Millan-Bloedel, Ltd. v. Canada, 391 So.2d 749 (5th DCA 1980). The third party plaintiff claims that the action accrues under the statute when the injury occurs. The third party defendant alleges the action accrues on the product’s distribution date. The third party defendant is correct.

As authority, third party plaintiff cites Griffis v. J.C. Penney Co., 333 So.2d 503 (1st DCA 1976). However, third party plaintiff has misinterpreted that court’s holding. The accident in Griffis occurred in December of 1973. Although § 48.193 became effective on July 1, 1973, the court held the negligent acts of the defendant took place at the time it sold the defective item to the distributor, such time being prior to July 1, 1973. Therefore, § 48.193 was inapplicable. Accord Public Gas Co. v. Weatherhead Co., 409 So.2d 1026 (Fla. 1982) (the product at issue was manufactured and distributed in the 1950’s, which time was well before the 1970 effective date of the original statutory predecessor of § 48.193).

This Court finds that the essential date for application of § 48.193 is the date on which the product was sold by Fruehauf (December 7, 1968), rather than the date of injury as asserted by the third party plaintiff. Since the effective date of Florida’s Long Arm Statute was July 1, 1970, jurisdiction is not proper under this statute.

Having reached the conclusion that Fruehauf failed to sustain the propriety of substitute service under Fla.Stat. § 48.193 (1973), the question becomes whether Birmingham is subject to jurisdiction under Fla.Stat. § 48.181 (1957).

Section 48.181 of the Florida Statutes reads:

(3) Any person, firm or corporation which sells, consigns, or leases by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in this state shall be conclusively presumed to be operating, conducting, engaging in or carrying on a business venture in this state.

Application of § 48.181 requires the alleged injury be occasioned by defendant’s business activities within the state. See Holiday Inns Inc. v. Jamison, 353 So.2d 1269 (1st DCA 1978). Additionally, if plaintiff relies on subsection (3) (which the plaintiff does here), the plaintiff must allege and prove the defendant had a requisite degree of control over a jobber, broker, wholesaler or distributor alleged to have sold its products within the state of Florida. AB CTC v. Morejon, 324 So.2d 625 (Fla.1976). In Morejon the Florida Supreme Court held that a Florida resident who had been injured and sought to assert jurisdiction over a nonresident manufacturer failed to sustain propriety of substituted service of process on the Secretary of State pursuant to § 48.181 subsections (1) and (3) because plaintiff failed to show that the manufacturer exercised control over wholesalers, distributors or brokers of its products or control over the actual manufactured items in such person’s possession.

Thus, for the reasons stated above, the Third Party Complaint is dismissed since the third party plaintiff may not avail itself to jurisdiction under § 48.193 because the negligent acts occurred before July 1, 1970. Furthermore, § 48.181 does not save the Third Party Complaint here since the third party plaintiff failed to allege the manufacturer exercised control over its wholesalers, distributors or brokers in this state. This dismissal is without prejudice to the alleged cause of action against Birmingham in a court having competent jurisdiction over the same.

Based on this ruling, Plaintiff’s Motion for a Separate Trial of the third party claim, filed on October 11, 1984, is declared moot.

      . In its response the third party plaintiff alleged that control was not a necessary allegation and that all that was required was to show that the non-resident defendant knew or should have reason to anticipate that its product would be shipped into interstate commerce so that it would foreseeably injure a Florida user. As authority, Life Laboratories Inc. v. Valdes, 387 So.2d 1009 (3d DCA 1980) was cited. However, not only did the court there reject jurisdiction, but the court made reference to there being no allegations that Life Lab made marketing, advertising or distribution decisions or that they controlled those determinations by the co-defendant. Id. at 1011.


author: CYR, Chief Judge.

text:
    Patrick A. McDONOUGH and Dianne F. McDonough, Plaintiffs, v. Leonard G. NEY, et al., Defendants.
    Civ. No. 83-0303-B.
    United States District Court, D. Maine.
    Dec. 4, 1984.

      Patrick A. and Dianne F. McDonough, pro se.
    Robert S. Frank, Asst. Atty. Gen., Augusta, Me., for defendants Martin, McCarthy, Beaulieu and Brennan.
    Bernard J. Kubetz, Eaton, Peabody, Bradford & Veague, Bangor, Me., for defendant Donald Cushman and Leonard G. Ney.
    John Ballou, Nathaniel M. Rosenblatt, Mitchell & Stearns, Bangor, Me., for defendants Kravchuk and Almy.
    Paul Blankenstein, Robert Lavet, Civil Div., Dept, of Justice, Washington, D.C., Timothy C. Woodcock, Asst. U.S. Atty., Bangor, Me., for defendants McCloskey, Mitchell and Cohen.
    Stanley M. Brand, Gen. Counsel to the Clerk, Steven R. Ross, Deputy Counsel to the Clerk, Michael L. Murray, Asst. Counsel to the Clerk, U.S. House of Representatives, Washington, D.C., for defendant Olympia Snowe.
   MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

CYR, Chief Judge.

INTRODUCTION

The present action began with the filing of a pro se complaint on August 2, 1983, approximately one year after the plaintiffs first asserted an unqualified constitutional right to educate their children at home, without having obtained state approval of their “home education plan” in accordance with 20 M.R.S.A. §§ 911(1)(A), (3)(A) & 914 (Supp.1981-82) [hereinafter “compulsory attendance laws”].

Even as plaintiffs continued to press their constitutional defenses in the first civil forfeiture action before the Courts of the State of Maine, they brought the present federal court action against both United States Senators for Maine, one Member of the U.S. House of Representatives, the Governor of Maine, the Speaker of the Maine House of Representatives, one Justice and one Judge of the Courts of the State of Maine, an Assistant U.S. Attorney, two Assistant District Attorneys for the State of Maine, the Superintendent of School Administrative District No. 64, the Truant Officer for S.A.D. 64 and, finally, an Assistant Attorney General for the State of Maine. Plaintiffs charged the State defendants with misfeasance and malfeasance in connection with their implementation of Maine’s compulsory attendance laws. The Federal defendants were charged with nonfeasance of their alleged prosecutive or legislative responsibilities to vindicate plaintiffs’ perceived constitutional right to educate their children at home, notwithstanding the requirements of Maine law.

On December 8, 1983, the Supreme Judicial Court of Maine decided State v. Mc- Donough, 468 A.2d 977 (Me.1983), rejecting plaintiffs’ constitutional challenge to Maine’s compulsory attendance law provisions relating to “home education” and habitual truancy. Plaintiffs’ reaction was swift. On December 19, 1983, plaintiffs filed their second suit in this Court, naming each of the six sitting Maine Supreme Court Justices who had rejected plaintiffs’ constitutional challenge on December 8, together with the Superior Court Justice who had ruled against plaintiffs below and the two Assistant District Attorneys who had represented the State. By that time, of course, the plaintiffs had not only been finally adjudicated as having committed a civil violation for refusal to submit a “home education plan” for the 1982-83 school year, but they had also refused to do so for the 1983-84 school year, which was already well underway.

On September 20,1984, shortly after this Court dismissed plaintiffs’ second action, see note 3 supra, the Supreme Judicial Court upheld the judgment of the Penobscot County Superior Court that plaintiffs had committed a civil violation with respect to the “home education” of their children for the 1983-84 school year.

PRESENT ACTION

The present pro se complaint demands damages, declaratory relief and the removal of all defendants from public office. Despite having prevailed before Maine’s highest court, these State defendants now find themselves in federal court charged with conspiring to deprive plaintiffs of their self-styled, nonexistent constitutional right to educate their children at home without state approval. The Federal defendants have been drawn into the fray for their refusal to protect from encroachment by the State the nonexistent constitutional right asserted by plaintiffs.

All defendants move to dismiss the action. The Court directed the parties to file any and all affidavits, documents and memoranda in support of or in opposition to the motions to dismiss not later than February 10, 1984. The motions were scheduled for oral argument before the Honorable David S. Porter on July 25, 1984. Plaintiffs failed to appear individually or by counsel. All defendants were represented by counsel at oral argument and all agreed to submit their motions to dismiss on the documents, following brief oral presentations on the record. Judge Porter thereupon deemed the motions submitted.

I.

DEFENDANTS BRENNAN, MARTIN, McCarthy and beaulieu

In an excellent memorandum of law, Maine Assistant Attorney General Robert S. Frank succinctly and conclusively demonstrates the entitlement of these State defendants to a dismissal of all claims brought against them by plaintiffs for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

These State defendants, the Governor of Maine, the Speaker of the Maine House of Representatives, a Superior Court Justice and a State District Court Judge, have been sued by plaintiffs for “conspir[ing] to make [plaintiffs] believe that [Maine’s Compulsory Education Law] is legitimate...,” Complaint 116, and for “trying to force [plaintiffs] to submitting (sic) a private paper [curriculum] ..Complaint ¶ 6.

There is no other allegation of specific conduct by any of these State defendants; no overt act; no specific facts; only the general and conclusory allegations quoted above. Testing these allegations against the requisite elements of each of the criminal, civil and constitutional causes of action asserted by plaintiffs and further indulging plaintiffs’ pro se complaint to the fullest measure, it appears beyond cavil that plaintiffs have utterly failed to state any claim upon which relief can be granted to plaintiffs against any of these defendants.

Accordingly, plaintiffs’ complaint is DISMISSED as to these State defendants, pursuant to Fed.R.Civ.P. 12(b)(6).

DEFENDANT FRANK

Plaintiffs’ amended complaint alleges that Maine Assistant Attorney General Frank, by virtue of his role as counsel to the State defendants in these proceedings, is (1) at “war with the United States Constitution” and in violation of his oath of office; (2) negligent; (3) engaged in “legal malpractice”; and (4) a “willing co-conspirator.” Undaunted, defendant Frank filed his own motion to dismiss, together with a cogent and restrained supporting memorandum of law. In this instance, the Court feels constrained to dispose of plaintiffs’ claims even more succinctly than did defendant Frank in his memorandum.

Plaintiffs have lost the “war with the United States Constitution” about which they complain against defendant Frank, State v. McDonough, 468 A.2d 977 (Me. 1983); State v. McDonough, 481 A.2d 184 (Me.1984), which in turn resolves whatever semblance of merit might ever have been supposed by plaintiffs to attach to their irresponsible assertion that the defendant violated his oath of office by representing his clients.

Altogether aside from the fundamental fact that plaintiffs refuse to acknowledge that their claims to an assertedly unqualified right to educate their children at home, without complying with Maine law, have been finally resolved against them, their charge that defendant Frank has acted negligently ignores the reality that defendant Frank is defendants’ counsel, not plaintiffs’ counsel. The characterization of Mr. Frank’s defense of the conduct of his clients in the performance of their official responsibilities under valid Maine law, as negligence and malpractice, represents reason run amok with its appetite for vituperation.

Finally, if defendant Frank became a “willing co-conspirator,” as plaintiffs charge, he did so by virtue of his able and entirely professional, as well as successful, defense of his “co-conspirator” clients, an undertaking which ought not expose an attorney to the calumnies contained in plaintiffs’ amended complaint.

None of the “causes of action” alleged in plaintiffs’ amended complaint states a claim upon which relief can be granted. Accordingly, for the reasons stated here and in the foregoing discussion of the motions to dismiss filed by other State defendants, plaintiffs’ amended complaint is DISMISSED for failure to state any claim upon which relief can be granted; provided, however, that the Court expressly reserves jurisdiction of defendant Frank’s motion for the imposition of sanctions under Fed.R. Civ.P. 11.

DEFENDANTS KRAVCHUK AND ALMY

These defendants are assistant district attorneys who represented the State in its first prosecution of the plaintiffs for civil violations of the habitual truancy provisions of Maine’s compulsory attendance law. These defendants acted in good faith and pursuant to the official duties imposed upon them by valid Maine law and by their oaths of office. Their prosecution of these plaintiffs pursuant to law was clothed with absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

For this reason, inter alia, plaintiffs’ complaint is DISMISSED as to defendants Kravchuk and Almy for failure to state a cognizable claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

DEFENDANTS NEY AND CUSHMAN

These defendants (District defendants) are, respectively, the Superintendent and the Truant Officer of School Administrative District No. 64. These District defendants performed their official duties relating to the investigation and prosecution of habitual truancy; they did so in good faith; they did so with all appropriate discretion and restraint, see State v. McDonough, 468 A.2d 977, 978 (Me.1983), and they did so pursuant to provisions of Maine law which have since been conclusively held constitutional, id. The complaint neither alleges nor would the record support any suggestion that the District defendants acted with any impermissible motivation or with any disregard of the rights of the plaintiffs or their children.

Accordingly, the official conduct of the District defendants is clothed with a qualified, good-faith immunity, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1974), which, among other reasons, requires that plaintiffs’ complaint against these defendants be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Fed.R. Civ.P. 12(b)(6).

DEFENDANTS COHEN, MITCHELL AND SNOWE

These Federal defendants are charged with refusing to intervene in behalf of plaintiffs as requested. While respecting plaintiffs’ right to petition their elected representatives, these Federal defendants declined plaintiffs’ invitations to disregard both the separation of powers and the principles of comity and federalism. Plaintiffs have alleged no act of omission or commission by these Federal defendants, except their failure to intervene, which was neither inappropriate nor actionable. See Chase v. Kennedy, No. 77-305 (S.D.Cal. August 21, 1979), aff'd, 605 F.2d 561 (9th Cir.), cert. denied, 444 U.S. 935, 100 S.Ct. 284, 62 L.Ed.2d 195 (1979).

Accordingly, and for the reasons stated, plaintiffs’ complaint against these Federal defendants is DISMISSED for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

DEFENDANT McCLOSKEY

By refusing plaintiffs’ requests to investigate and prosecute the State defendants so as to prevent the enforcement of Maine’s compulsory attendance law, Assistant U.S. Attorney McCloskey is charged as a “co-conspirator.” As previously noted, the alleged conspiracy which defendant McCloskey is charged with having joined turns out to have been not only a proper, but indeed a required, undertaking by the State defendants in aid of the enforcement of valid Maine law. See State v. McDonough, 468 A.2d 977 (Me.1983); State v. McDonough, 481 A.2d 184 (Me.1984). Moreover, defendant McCloskey is entitled to absolute immunity from any civil claim for damages allegedly resulting from the discretionary prosecutive decision not to prosecute. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Accordingly, plaintiffs’ complaint against defendant McCloskey is DISMISSED for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

It appearing that there exists no just reason for delaying the entry of final judgment as ordered herein, while the Court undertakes a determination of the merits of the motion for sanctions, the Clerk is hereby DIRECTED forthwith to enter final judgment dismissing, with prejudice, plaintiffs’ complaint and amended complaint against all defendants in accordance with the within memorandum and order.

It appearing that the injunctive order entered by Judge Porter herein on July 27, 1984 requires amendment so as to permit plaintiffs to respond to the motion for sanctions filed by Defendant Frank, see note 6 supra, that injunction is hereby amended so as to permit such a response, within ten days of this order, and for no other purpose.

SO ORDERED.

      . For a more detailed statement of the circumstances surrounding the onset of the controversy, see State v. McDonough, 468 A.2d 977 (Me. 1983).

      . Ultimately, plaintiffs were adjudicated by the Supreme Judicial Court of Maine as having committed civil violations under 20 M.R.S.A. § 911 for the 1982-83 school year, see State v. McDonough, 468 A.2d 977 (Me.1983), and the 1983-84 school year, see State v. McDonough, 481 A.2d 184 (Me.1984).

      . This second action, Civil No. 83-0439-B, was dismissed on August 7, 1984. The gravamen of the action was that the defendant state justices and prosecutors had violated various provisions of constitutional, criminal and civil law by ruling or advocating that the plaintiffs did not have an unqualified constitutional right to educate their children at home without first submitting a “home education plan” as required by Maine’s compulsory attendance law.

       United States Senior District Judge, Southern District of Ohio, Western Division, sitting by designation.

      . Assistant Attorney General Frank’s able representation of these State defendants was promptly rewarded by plaintiffs’ filing of an amended complaint, joining Mr. Frank as a party defendant. See text infra, at p. 682.

      . On December, 8, 1983 the Supreme Judicial Court of Maine upheld the constitutionality of the various provisions of Maine’s compulsory attendance law which form the matrix upon which plaintiffs base their allegations of wrongdoing by these defendants, see State v. McDonough, 468 A.2d 977, 980 (Me.1983), and rejected plaintiffs’ constitutional challenge to the efforts of certain defendants to compel plaintiffs to submit a "home education plan” as a condition precedent to state approval, see id. at n. 5.

      . Defendant Frank moves for the imposition of sanctions against these pro se plaintiffs pursuant to Federal Rule of Civil Procedure 11, as amended, effective August 1, 1983. Prior to August 1, 1983, Rule 11 merely authorized "appropriate disciplinary action" against counsel. Amended Rule 11, which became effective one day before plaintiffs filed the present action, mandates the imposition of "an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of [any] pleading, motion, or other paper [in violation of Rule 11], including a reasonable attorney's fee.” Fed.R.Civ.P. 11.

      . See note 6 supra.

      . See note 6 supra.

      . Plaintiffs are expressly permitted by the pending injunction to appeal the judgment directed to be entered herein, and to file a motion for leave of the Court to file any other action. Plaintiffs are specifically cautioned, however, that the provisions of Fed.R.Civ.P. 11 apply to any such motion for leave, and that the express provisions of the pending injunction, as amended hereby, continue in full force and effect.