source: Caselaw Access Project

author: MEREDITH, District Judge.

license: Public Domain

text:
    Bernice CAPPS, Plaintiff, and Liberty Mutual Insurance Company, Intervening Plaintiff, v. HERMAN SCHWABE, INC., Defendant and Third-Party Plaintiff, v. HICKORY SPRINGS MANUFACTURING COMPANY, Third-Party Defendant.
    Civ. A. No. C-82-0026-0(M).
    United States District Court, W.D. Kentucky, Owensboro Division.
    Feb. 3, 1986.
    Holbrook, Gary, Wible & Sullivan by William E. Garry III and Lizbeth Ann Tully, Owensboro, Ky., for defendant and third-party plaintiff.
    Robert G. Hunt, Henderson, Ky., and Cole, Harned & Broderick by John David Cole, and John D. Minton, Jr., Bowling Green, Ky., for third-party defendant.
   MEMORANDUM OPINION

MEREDITH, District Judge.

This indemnity action presents the Court with a most important question concerning Kentucky Workers’ Compensation law: Whether an employer’s liability to indemnify a third-party tortfeasor is limited by Kentucky Revised Statute 342.690(1) to the amount of workers’ compensation benefits payable by the employer to the injured employee?

The Kentucky Supreme Court had previously reserved this question in Burrell v. Electric Plant Board of Franklin, Ky., 676 S.W.2d 231, 237 (Ky.1984), since the issue was not properly before the Court. The question is presently before this Court on the parties’ pre-trial request for a ruling, since the resolution of this issue would obviate the necessity and expense of a trial. For all practical purposes, this amounts to a motion for summary judgment on behalf of Hickory Springs Manufacturing Co. This Court has jurisdiction by virtue of diversity of citizenship pursuant to Title 28, United States Code, Section 1332.

This case originated as a personal injury, products liability action. In her complaint filed January 28, 1982, plaintiff, Bernice Capps, sought to recover from the defendant, Herman Schwabe, Inc., here the third-party plaintiff, for injuries received when her arm was caught in an industrial press manufactured by Schwabe. The machine had been purchased from Schwabe by Capps’ employer, Hickory Springs Manufacturing Company, here the third-party defendant. Capps was injured in the course of her employment with Hickory Springs. Capps alleged negligent manufacture, strict liability and breach of express and implied warranties.

Liberty Mutual Insurance Company, Hickory Springs’ workers’ compensation carrier, intervened to assert its rights under Kentucky Revised Statute 342.700 to subrogation. Schwabe impleaded Hickory Springs for purposes of contribution, and under the common-law indemnity theory expressed in Brown Hotel Co. v. Pittsburgh Fuel Company, 311 Ky. 396, 224 S.W.2d 165 (1949), in order to recover all or part of any judgment awarded against it. Schwabe subsequently entered into a settlement agreement with Bernice Capps and Liberty Mutual whereby Schwabe paid $36,418.00 to Liberty for its subrogation claim and $123,582.00 to Capps in full settlement of her claim. Capps released Liberty Mutual from all future claims for workers’ compensation except for future medical expenses. Liberty Mutual released all its subrogation claims against Schwabe and paid $100,000.00 to Schwabe on behalf of Hickory Springs, representing the total amount of workers’ compensation payments potentially due.

Schwabe is presently trying to recover from Hickory Springs the $160,000.00 paid to Ms. Capps and Liberty Mutual plus $27,-939.14 in legal expenses and fees while crediting Hickory Springs with the $100,-000.00 paid in its behalf by Liberty Mutual. Ms. Capps has been awarded workers’ compensation benefits of $100.00 per week for the rest of her life. Actuarial tables indicate these benefits have a total worth of $86,944.00 with a present value of $63,-663.90.

In this diversity action, this Court sits as a state trial court, Grant v. Bill Walker Pontiac-GMC, Inc., 523 F.2d 1301, 1303 (6th Cir.,1975), and is “[bjound by clear precepts of statutory construction in use in this Commonwealth ...”. Anderson v. Black & Decker (U.S.), Inc., 597 F.Supp. 1298, 1301 (E.D.Ky.,1984). In Kentucky this means that we must proceed on the presumption that the Kentucky General Assembly, in enacting a new statute, was aware of the relevant constitutional provisions, Ratliff v. Fiscal Court of Caldwell County, Ky., 617 S.W.2d 36, 38 (Ky.1981), and that it “is acquainted with the law on the subjects on which it legislates and is informed of previous legislation and construction that it has previously received.” Manning v. Kentucky Board of Dentistry, 657 S.W.2d 584, 587 (Ky.App.1983) (discretionary review denied). In addition, “[w]e are, when considering the constitutionality of a statute, obliged to give it, if possible, the interpretation which upholds its constitutional validity.” Ratliff, 617 S.W.2d at 38. Keeping these precepts in mind, the Court now turns to the question at hand.

Schwabe has alleged and hoped to prove at trial that Hickory Springs (1) failed to add point and operational guards to the press as required by state and federal laws; and (2) used the machine in such a way as to compel its employees to insert their hands and arms into the machine to remove material from the press; and (3) that while Capps was working on the front side of the press, Hickory Springs’ manager attempted to make repairs on the electrical controls on the backside, and, in some way, short-circuited the electrical safety circuits causing the press to cycle unexpectedly, cutting off Capps’ arm. Schwabe contends that these three things, once proven, would establish that Hickory Springs was primarily and actively negligent while Schwabe was only secondarily and passively negligent and therefore entitled to indemnity.

The touchstone case in Kentucky on indemnification is Brown Hotel, supra. In that case an employee of a fuel company, after delivering coal to the Brown Hotel, failed to secure a manhole cover properly. A pedestrian, who was injured stepping on the loose manhole cover, sued and obtained a judgment against both the Brown Hotel and the fuel company. The Brown Hotel and its insurer then sued the fuel company for indemnification and recovered. In Brown Hotel the court said that indemnification would be allowed where there were joint tortfeasors, both equally liable to the injured party, but not in pari delicto as to culpability between themselves. The Brown Hotel was characterized as having been passively and secondarily negligent since it merely failed to inspect and discover the dangerous situation while the fuel company was labeled as actively and primarily negligent since its employee had actually created the hazardous condition.

In Kentucky Utilities Company v. Jackson County, R.E. Coop. Corp., 438 S.W.2d 788 (Ky.1968), the court was called upon to interpret Kentucky Revised Statute 342.-015(1) which was the predecessor of Kentucky Revised Statute 342.690, and which released the employer who paid workers’ compensation benefits “from all other liability.” Citing to Happy v. Erwin, Ky., 330 S.W.2d 412 (Ky.1959), a municipal immunity case and Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932), a guest statute case, the court said “that jural rights which had become well established before the adoption of the Constitution are preserved by the Constitution.” 438 S.W.2d at 790. The Court then continued: “[i]t seems clear that the common-law right of indemnity is a jural right which existed prior to the adoption of our Constitution and may not be abolished by the General Assembly.” 438 S.W.2d at 790. The court then determined that Kentucky Revised Statute 342.015(1) did not bar an indemnification action by a third-party tortfeasor against an employer because such an action would not have been brought “on account of” the injuries to the employee, but, instead, arose from the breach of an independent duty owed by the employer to the third party. Id.

In Union Carbide Corporation v. Sweco, Inc., 610 S.W.2d 932 (Ky.App.1980), discretionary review denied (1981), also involving an action by a third party tortfeasor against an employer for indemnity, the Kentucky Court of Appeals relying on Kentucky Utilities, supra, said “[t]he common-law right of indemnity may not be emasculated by any language or act of the legislature no matter how worded.” 610 S.W.2d at 934. The Court, however, was only faced with the question of whether Kentucky Revised Statute 342.690 would allow an action for indemnity to be maintained. The court did not address the question with which we are presented in this case.

The most recent expression of the Kentucky Courts on this subject comes in Burrell v. Electric Plant Board of Franklin, Ky., 676 S.W.2d 231 (Ky., 1984). In this case it was questioned whether the third party tortfeasor could even maintain an action against the employer. Kentucky Revised Statute 342.015(1) had said the employer was “released from all other liability.” Kentucky Utilities had limited the effect of this language to contribution and had excluded its application to indemnity on constitutional grounds. 676 S.W.2d at 233. Now in Burrell the court was primarily concerned with establishing that Kentucky Revised Statute 342.690(1) had extended to third party tortfeasors the right to claim contribution from the employer and also the right to indemnity, at least to the extent of workers’ compensation benefits payable. 676 S.W.2d at 233. The court was trying to prevent potential “windfalls” to employers since Kentucky Revised Statute 342.700 provided the employer with the statutory right to subrogation for the amount of workers’ compensation paid and without an offsetting right to contribution or indemnity a negligent employer could be unconscionably rewarded for his negligence. 676 S.W.2d at 235. The Burrell opinion, however, only establishes that a third party tortfeasor can recover contribution and/or indemnity up to the total amount of the employers workers’ compensation liability. Schwabe contends that these cases should compel the Court to find that Kentucky Revised Statute 342.690 cannot limit its right to indemnification. These cases, however, do not constitute the entire law of Kentucky on this subject.

In Fireman’s Fund Insurance Company v. Government Employees Insurance Company, 635 S.W.2d 475 (Ky.1982), the court was faced with the question of whether a no fault insurer possessed a right of indemnity against a third party tortfeasor that was protected by Sections 14 and 54 of the Kentucky Constitution. In reaching the conclusion that the no fault insurer did not have a constitutionally protected right to indemnity, the court looked to the line of workers’ compensation indemnity cases with which we are concerned with here today, and noted that it was not until Kentucky Utilities that it was even considered that this type of indemnity claim might be constitutionally protected. The Court said:

“Assuming, however, but without so deciding, that the general theory of indemnity as grounds for a cause of action cannot be legislated away, still the specific issue in any case is whether the facts of the case would have established a cause of action under that theory at that time. Today, for example, we behold the theory of negligence having burgeoned into liability without fault in products liability cases, but it would be absurd to contend that such liability would have been countenanced in 1891.
“The right of indemnity asserted in the Kentucky Utilities Company case was founded on facts that were strictly analogous to the situation in the Brown Hotel case. Absent the element of workmen’s compensation, two parties were liable for the wrongful death, but it was the primary or active negligence of the one which had exposed the other to that liability. Whether the right of indemnity under those circumstances had developed by case-law to the point of recognition in 1891 is extremely doubtful, but we need not pursue the point here, because it is quite beyond cavil that in 1891 neither workmen’s compensation nor no-fault automobile or vehicular insurance law existed. It is not possible that the kind of indemnification sought in this case could have been established as common law at the time the Constitution of this state was adopted.” (Footnote omitted) 636 S.W.2d at 477.

In Burrell, Justice Leibson, writing for the majority, rejected the employer’s contention that Fireman’s Fund had implicitly overruled Kentucky Utilities. However, it appears to this Court that Justice Leibson said this only to establish that a common-law right of indemnity did exist since it was being questioned whether a third-party could even maintain an action for indemnity against the employer. 676 S.W.2d at 235-236. Had the majority intended to do anything more than acknowledge the continuing existence of the right to indemnity then they would not have been so careful to emphasize the fact that they were not addressing the question of whether this right could be constitutionally limited. Indeed, it was made quite clear that this question was not properly before the court and would not be addressed until it was. 676 S.W.2d at 237. Therefore, it remains that while Kentucky Utilities may not have been overruled in Fireman’s Fund, it was greatly restricted in its scope.

Finally, in determining the constitutionality of a five year statute of limitation as it affected an action for negligence against a builder, the court in Carney v. Moody, 646 S.W.2d 40 (Ky.1982), rehearing denied (1983), stated:

“It is not seriously contended that the law as it prevailed in 1891 would have afforded the injured parties a remedy against the negligent builder or builders.
* * * * ★ *
The respondents argue that because negligence was an established basis for a cause of action in 1891 all rights of action based on negligence, especially of a type recognized at the time the limitations statutes were enacted in 1964 and 1966, are constitutionally protected. This would mean, however, that every enlargement in the field of liability for negligent conduct, whether effected by statute or by decision of this court, would assume constitutional status, beyond the power of either court or legislature to overrule or repeal it. We cannot accede to that proposition. Our construction of these constitutional provisions is and should be that which leaves to the policy-making arm of government the broadest discretion consistent with their language.” 646 S.W.2d at 41.

While it was said in Kentucky Utilities that “[i]t seems clear that the common-law right of indemnity is a jural right which existed prior to the adoption of our Constitution and may not be abolished by the General Assembly,” 438 S.W.2d at 790, the court reached this conclusion relying on Brown Hotel and the cases cited therein. Brown Hotel, however, was decided in 1949. Blocker v. City of Owensboro, 129 Ky. 75, 110 S.W. 369 (1908) is the earliest authority cited in Brown Hotel, and in this case, although the theory of indemnification was recognized, it was not actually allowed. Therefore, it would appear that the Kentucky Utilities court reached their conclusion by looking at the common-law prior to the passage of the statute in question and like the court in Saylor v. Hall, 497 S.W.2d 218 (Ky.1973), failed to determine whether the facts would have given rise to a legal cause of action when the Constitution was enacted in 1891.

The earliest case on common-law indemnity sounding in torts that my research uncovered was the case of Cincinnati, etc. R. Co. v. Louisville & Nashville R. Co., 97 Ky. 128, 30 S.W. 408 (1895) in which the court, while recognizing that the right to indemnity might exist, chose not to award it. However, it is not necessary that we pursue this line of inquiry. Fireman’s Fund establishes that the type of indemnity sought in the present case would not have been available in 1891; 635 S.W.2d at 477, and Carney leads this Court to conclude that although the equitable right to indemnity may have existed in 1891, since the type of indemnity sought in this case would not have existed, then Sections 14, 54 and 241 of the Kentucky Constitution do not apply.

In reaching this determination this Court has also remained mindful of the raison d’etre of the Worker’s Compensation Act. Relief to employees is intended to be broader in scope and more certain than that allowed by the common-law. The employee is given a speedy recovery when it is needed most while minimizing expensive litigation. The employer, on the other hand, incurs a liability that is limited and determinate. As one Kentucky Court has said of the statutory scheme:

It practically abolished the common law relating to the subject of tortious liability as between the employer and the employee and that abolition carried with it the harsh and as often applied, inhuman rules of assumed risk, fellow servant and contributory negligence which an old school of thought and economics had en-grafted into the common law. It was in effect a compromise between the employer and the employee to avoid the expense, vexatious delay and uncertainty of actions at law; and for its superior advantages to them, both surrendered some rights under the common law.

Morrison v. Carbide and Carbon Chemicals Corp., 278 Ky. 746, 750, 129 S.W.2d 547 (1939). Clearly the courts should be reluctant to tampér, especially on an ad hoc basis, with the statutory scheme, and in the case sub judice the economic underpinnings, of the Workers’ Compensation Act. See Burrell, 676 S.W.2d at 239 (Stephenson, J., dissenting).

Having determined that Sections 14, 54 and 241 of the Kentucky Constitution do not apply to the situation at hand as a result of Fireman’s Fund, there remains only the question of whether Kentucky Revised Statutes 342.690(1) acts to bar Schwabe’s claim for indemnification in excess of Hickory Springs’ liability for workers’ compensation. Kentucky Revised Statute 342.690(1) states in part as follows:

“The liability of an employer to another person who may be liable for or who has paid damages on account of injury or death of an employe of such employer arising out of and in the course of employment and caused by a breach of any duty or obligation owed by such employer to such other shall be limited to the amount of compensation and other benefits for which such employer is liable under this chapter on account of such injury or death, unless such other and the employer by written contract have agreed to share liability in a different manner. ” (Emphasis added)

Borrowing the words of Justice Leibson “[w]e cannot assume the change in the statute was meaningless. The new statute must be ‘held to mean what it plainly expresses.’ ” Burrell, 676 S.W.2d at 234. It “plainly expresses” in the first instance that an employer’s liability “shall be limited to the amount of compensation and other benefits for which such employer is liable” under the Workers’ Compensation Act. Therefore, while the employer may be held liable to a third-party for contribution or indemnification, this liability is limited to the amount of the workers’ compensation benefits payable. Thus, the only question which remains to be asked in view of the plain language of the statute is: Did such other, (i.e., Schwabe) and the employer (i.e., Hickory Springs), agree by a written contract to share liability in a different manner? The answer is no. The Court has not been presented with a single iota of evidence anywhere that there was such an agreement. Thus, Hickory Springs’ obligation “shall be limited to the amount of compensation and other benefits for which such employer is liable under this chapter.” This obligation having been satisfied then Schwabe’s claim should be dismissed.

This Court paraphrases the court in Carney v. Moody, supra, to say that while “the statutes limiting the [employer’s] liability for [indemnification] may occasionally leave injured parties without a remedy, or without a solvent defendant, [this] cannot justify the courts in taking corrective measures that more appropriately fall within the prerogative of the legislature.” 646 S.W.2d at 41. Ironically, the Legislature of the Commonwealth of Kentucky is now in its biennial session. If the Statute in question is to be amended it shall be done by the appropriate body, namely the Legislature, not by this Court.

An appropriate Order will be entered as of this date.

      . Schwabe subsequently dropped its claim for contribution.

      . Hickory Springs, relying on Montgomery Elevator Company v. McCullough, 676 S.W.2d 776 (Ky.1984) would have us hold that in a products liability case, such as we have here, the employer/purchaser could, at the most, only be concurrently negligent with the manufacturer. However, in Montgomery Elevator the manufacturer was attempting to use the intervening or superseding negligence of the purchaser to defeat a recovery by a totally innocent ultimate user. Understandably the court wanted to narrow the circumstances in which an innocent ultimate user’s right of recovery against a negligent manufacturer would be cut off simply because an even more negligent (and perhaps judgment proof) purchaser was also available. Montgomery Elevator, does serve to illustrate, however, that a manufacturer, such as Schwabe, is going to have a difficult time establishing that it was merely secondarily and passively negligent and entitled to indemnity. See, Germain, Remedies: Contribution and Apportionment Among “Joint Tortfeasors. ”, 65 Ky.L.J. 285, 289-291 (1976) (there needs to be a difference in quality of fault and not just a gross disparity in the quantity).

       While Schwabe raises Sections 14, 54 and 241 of the Kentucky Constitution as constituting a bar to any attempt to limit indemnification, its primary reliance is on Section 54 which reads as follows: “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property."

      . In Brown Hotel the court said that contribution was but pro tanto indemnity and that both were based on the idea of equalization of the burden. 311 Ky. at 401. In addition apportionment has long been allowed between joint tortfeasors in Kentucky. See Kentucky Revised Statutes 454.040; Orr v. Coleman, 455 S.W.2d 59 (Ky.1970). Thus Justice Vance, writing in dissent in Burrell was prompted to suggest that with the adoption of comparative negligence in Hilen v. Hays, 673 S.W.2d 713 (Ky.1984), that liability should be allocated according to the degree of fault. Under this approach, if the sum of the percentage of fault attributable to the employer multiplied times total damages exceeded the total workers’ compensation liability then the employee is deemed to have settled with the employer for the amount of workers’ compensation. Meanwhile, the third party tortfeasor would be held responsible only for the portion of the injury caused by its negligence. 676 S.W.2d at 238. This Court is attracted by this approach since it appears to be equitable to all concerned and does not pose a threat to the financial underpinnings of the Workers’ Compensation Act; see Burrell, 676 S.W.2d at 239, (Stephenson, J., dissenting), while avoiding potential constitutional problems. However, Justice Liebson, writing for the majority in Burrell, precludes the approach in his instructions to the trial court. 676 S.W.2d at 237.


author: j. THOMAS GREENE, District Judge.

text:
    ARGOSY 1981-B, LTD., a Utah limited partnership, Plaintiff, v. Sam P. BRADLEY, Defendant.
    Civ. No. C85-926G.
    United States District Court, D. Utah, C.D.
    Feb. 4, 1986.
    John B. Maycock, Salt Lake City, Utah, for plaintiff.
    Theodore E. Kanell, Salt Lake City, Utah, for defendant.
   DECISION AND ORDER

j. THOMAS GREENE, District Judge.

The matter came on regularly for hearing on January 27, 1986, on defendant’s Motion to Dismiss or to Transfer Venue. The Court also heard argument on plaintiff’s Motion to Strike the affidavit of Sam P. Bradley. Both parties submitted memorandums of law. The Court heard oral argument and took the matters under advisement. After due consideration the Court denies defendant’s Motion to Dismiss. Defendant’s Motion does, however, raise an issue of law that warrants comment.

As part of its Amended Complaint, plaintiff asserts a civil claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendant has challenged this claim as untimely. In support of its claim, defendant asserts that since RICO does not contain its own limitation period, the statute of limitations which ought to be applicable to RICO claims is set forth in Utah Code Ann. § 78-12-29. That statute requires the filing of an action within one (1) year as to the following causes:

(1) an action for liability created by the statutes of a foreign state, (2) an action upon a statute for a penalty or forfeiture where the action is given to an individual, or to an individual in the State, except where the statute imposing or prescribing a different limitation ...

Defendant argues that civil RICO is a new cause of action which creates a new liability. Because section 1964 of RICO provides for treble damages, defendant further argues that in essence it requires a penalty or forfeiture. No authority is cited in support of the assertion that a penalty and forfeiture statute should apply. The Court is aware of an unpublished case which applied a penal statute of limitations period of two years to a RICO claim. See Caldarone v. Brown, No. 80-C-625J (N.D.Ill.1980). Since that bench decision, a large body of case law has evolved concerning which state statutes of limitation are most analogous and appropriate for application in the context of a RICO claim.

Apart from the Rico statute, courts have addressed the relevant considerations in determining which state statute of limitations should be applied to a federal claim where no time bar provision appears in the federal statute. Thus in O’Hara v. Kovens, 625 F.2d 15 (4th Cir.1980), cert. denied 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981), the court said:

When borrowing a state statute of limitations for federal purposes, a court should look to the statute which most clearly addresses the same or similar policy considerations as are addressed by the federal right being asserted. It is not necessary that the state statute operate in the same fashion as the federal scheme, nor is it necessary that the state statute describe a cause of action identical to the federal cause at issue. There simply must be a commonality of purpose between the federal right and the state statutory scheme so that it is reasonable to subject the federal implied right to the statute of limitations provided by state law. 625 F.2d at 18 (citations omitted).

The Tenth Circuit has applied a similar rationale in the context of § 1983 claims. See Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984) (en banc).

Applying these considerations to RICO claims, many courts have determined that the appropriate statute of limitations for a RICO claim is the state statute for common law fraud where as here the predicate acts upon which the RICO claim is based are securities, wire or mail fraud. See, e.g., Kirschner v. Cable/Tel Corp., 576 F.Supp. 234, 241 (E.D.Pa.1983); Durante Bros. and Sons, Inc. v. Flushing National Bank, 571 F.Supp. 489. A case on point with the one at bar is Steven Operating, Inc. v. Home State Savings, 105 F.R.D. 7 (S.D.Ohio 1984). In Steven Operating, the defendants moved the Court to permit amendment of their counterclaim to include a cause of action under RICO. Defendants asserted that an Ohio six-year statute of limitations for “liability founded upon statute,” was applicable. The court rejected that assertion, finding that RICO does not create a new liability; rather, RICO creates only a new remedy. The Court said:

In short, the liabilities sought to be covered by the application of the RICO ... does no more than create a new remedy for common law fraud. Id. at 11.

The court in Steven Operating also considered the question of applicability of an Ohio statute providing a one-year limitation period for statutes imposing a forfeiture or penalty. Relying on Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802 (6th Cir.1961) which held that treble damages provisions in civil antitrust laws are not punitive, the court held the one-year limitation statute to be inapplicable, and applied Ohio’s four-year statute of limitations for fraud. Steven Operating at 11.

The rationale of the Steven Operating opinion is even more compelling in light of the recent Supreme Court decision of Sedima v. Imrex Company, Inc., — U.S. -, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). In Sedima the Supreme Court held that RICO requires no showing of a racketeering injury beyond that suffered as a result of predicate acts. In light of that holding, we agree that RICO does not create a new liability. However, even if it did, we find that the most analogous statute of limitations provision in Utah is U.C.A. § 78-12-26, which provides for a three year limitation from the date of discovery of the fraud.

Defendant’s Motion to Dismiss, or in the alternative to Transfer, is hereby denied. In light of the ruling, the Court need not reach plaintiff’s Motion to Strike.

IT IS SO ORDERED.


author: TOM S. LEE, District Judge.

text:
    Juanita STEWART, Plaintiff, v. Cecil RUSSELL, Defendant.
    Civ. A. No. E83-0196(L).
    United States District Court, S.D. Mississippi, E.D.
    Feb. 5, 1986.
    Wilbur O. Colom, Columbus, Miss., for plaintiff.
    Taylor V. Smith, Columbus, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court for determination on the issue of whether this action seeking relief under 42 U.S.C. § 1983 is time-barred under the holding in Gates v. Spinks, 771 F.2d 916 (5th Cir.1985). In his answer, defendant Cecil Russell requested dismissal or summary judgment on limitations grounds. Prior to trial and following the Fifth Circuit’s ruling in Gates in September 1985, defendant supplemented his answer with memorandum brief in support of what he denominated as his “Motion to Dismiss or for Summary Judgment all as contained in the Second Defense of the Answer.” Plaintiff Juanita Stewart filed a response in the form of a copy of her arnicas curiae brief filed in support of suggestion for rehearing en banc in Gates The court has reviewed the memoranda and pertinent parts of the record in considering the matter.

Plaintiff Juanita Stewart is the mother and surviving heir of Larry Stewart, deceased. Defendant Cecil Russell was at all times relevant to this action the sheriff of Noxubee County, Mississippi. Plaintiffs complaint alleges that in the early morning hours of February 8, 1982, Larry Stewart was arrested by officers of the Noxubee County Sheriffs Department and charged with assault with intent to kill. He was taken to the Noxubee County Jail and booked around 4:30 A.M. Plaintiff further alleges that members of the Noxubee County Sheriffs Department observed Larry Stewart drink gasoline or antifreeze just before he was arrested, and that he was denied medical treatment by the defendant for some twelve hours following his arrest despite his repeated requests and obvious suffering. He was taken to a physician, Dr. Pat H. Gill, late on the afternoon of February 8, but apparently his condition was unrelieved by the treatment administered by Dr. Gill. His condition deteriorated through the night of February 8, and he was taken back to Dr. Gill on the morning of February 9. Dr. Gill transferred him to Columbus Hospital in Columbus, Mississippi, where Larry Stewart died at approximately 1:00 P.M.

Plaintiffs complaint alleges that the actions of defendant evidenced deliberate indifference to the serious medical needs of Larry Stewart in violation of the Eighth Amendment, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), and deprived him of life, liberty or property in violation of the Fourteenth Amendment. Plaintiff asserts, therefore, that she is entitled to pursue the relief provided in 42 U.S.C. § 1983. For purposes of the instant motion, the critical fact is that plaintiffs complaint in this cause was not filed until October 19, 1983, some 20 months after plaintiffs cause of action accrued.

In Gates, the Fifth Circuit undertook to determine the limitations period applicable to all actions brought in Mississippi under § 1983 in light of the decision of the United States Supreme Court in Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Wilson held that state statutes of limitations governing the general tort remedy for personal injuries should also govern claims under § 1983. 105 S.Ct. at 1948. The question facing the Fifth Circuit in Gates was whether the one-year limitation on actions based on most common law intentional torts, Miss.Code Ann. § 15-1-35 (1972), or the residual six-year limitations on all causes of action not otherwise provided for, Miss.Code Ann. § 15-1-49 (1972), should govern all § 1983 actions brought in Mississippi. 771 F.2d at 919. Based upon a review of the congressional purpose in enacting § 1983 and the historical context in which the remedy was developed, the Fifth Circuit determined that a § 1983 action is “more closely analogous to intentional torts governed by the one-year prescriptive period provided in Miss.Code Ann. 15-1-35.” Id. at 919-20. Thus, the court held that the one-year statute governs all § 1983 actions filed in Mississippi. Id. at 920.

In the wake of Gates, defendant filed the instant motion seeking dismissal of this action. The issue before the court is whether Gates should be accorded retroactive application to bar on limitations grounds even those actions which were filed before Gates and Wilson. Utilizing a case-by-case analysis which this court deems both fair and appropriate under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the court concludes that Gates should not be given retroactive application to bar the instant action.

In Chevron, the Supreme Court established three factors which must be considered in determining retroactive application of changes in the law of limitations of actions. Decisions are not to be applied retroactively if (1) the decision establishes a new principle of law, either by overruling clear past precedent on which the litigants may have relied, or by deciding an issue of first impression the resolution of which was not clearly foreshadowed; (2) retroactive application will not further the purpose of the rule; and (3) retroactive application could produce substantial inequitable results. 404 U.S. at 106-07, 92 S.Ct. at 355-56; Edwards v. Sea-Land Service, Inc., 720 F.2d 857, 860 (5th Cir.1983); Nations v. Sun Oil Co. (Delaware), 705 F.2d 742, 744 (5th Cir.1983); Young v. Biggers, et al., 630 F.Supp. 590 (N.D.Miss.1986). In applying each of the Chevron factors to the instant case, the court is not unmindful of the case, the court is not unmindful of the often-stated rule that “we should not have one law for old cases and another law for new cases.” Edwards, 720 F.2d at 863 (quoting Lawson v. Truck Drivers, Chauffeurs & Helpers, 698 F.2d 250, 254 (6th Cir.1983)).

Even a cursory examination of the annotations to Miss.Code Ann. §§ 15-1-35, 15-1-49 (1972 and Supp.1985), reveals only one case in which the one-year statute was applied to bar an action under § 1983 against law enforcement officers for deprivation of constitutional rights. In Ballard v. Taylor, 358 F.Supp. 409 (N.D.Miss.1973), a case that was not appealed, the district court applied the one-year statute to bar an action against a sheriff and constable for alleged unfounded arrest, beating of a plaintiff and denial of medical treatment. Ballard, however, was rejected on grounds of its misinterpretation of Mississippi law in Shaw v. McCorkle, 537 F.2d 1289, 1295 n. 13 (5th Cir.1976). Thus, while Ballard could arguably be used to support the proposition that utilization of the one-year statute in § 1983 actions was at least foreshadowed, Shaw and its analysis of the nature of the cause of action against law enforcement officials under Mississippi law was so clearly embraced in subsequent decisions as to make its analysis, and not that of Ballard, “clear past precedent” for purposes of the first Chevron factor. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) (in selecting state limitation period to apply to § 1983 action, court must adopt appropriate limitation period governing an analogous state cause of action).

In Shaw, plaintiff brought a § 1983 action against four Mississippi highway patrolmen and their surety on their official performance bond. The complaint alleged deprivation of constitutional rights stemming from the use by the patrolmen of excessive force in their arrest of plaintiff. The district court had dismissed the complaint as time-barred under the one-year statute. 537 F.2d at 1290-91. The Fifth Circuit reversed, holding that under Mississippi law the suit would be characterized as an action against a public officer and the surety on his bond, and as such would be governed by the six-year statute on written contracts. Id. at 1294. The fact that the suit in Shaw involved an underlying surety contract was not solely dispositive. Relying on two Mississippi Supreme Court cases involving analogous actions against law enforcement officers under state law, State For Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930), and Alexander v. Carsley, 199 Miss. 881, 25 So.2d 709 (1946), the court in Shaw stated that, when an act of a law enforcement officer involves excessive force or otherwise deprives a plaintiff of his constitutional rights, “such an act is not the breach of a duty which every person owes to every other person, and thus is not an intentional tort. Rather, the action is for breach of the [law enforcement officer’s] official duties.” Id. at 1293. These additional duties were seen in Shaw as arising in contract, and it was for breach of these additional official duties that liability under 42 U.S.C. § 1983 was imposed. The fact that plaintiff joined the patrolmen’s surety in the suit was not seen as the sine qua non for application of the six-year statute. Id. at 1295 n. 11, 14.

Any doubt that the six-year statute applied in § 1983 actions against police officers in Mississippi, regardless of the presence of the surety as a named defendant, was laid to rest in Morrell v. City of Picayune, 690 F.2d 469 (5th Cir.1982). In an action against the city and several police officers who had allegedly hurled plaintiff against the concrete floor and wall of a jail cell, the district court had granted summary judgment through application of the one-year statute. Id. at 469. The Fifth Circuit reversed, stating with specific regard to the appellee’s argument that Shaw and Smith were distinguishable because those suits involved the presence of sureties as defendants:

As we noted in Shaw, however, the square holding of the Mississippi court in Smith is that the one-year statute governing actions for intentional torts by ordinary citizens does not apply to torts by police. 537 F.2d at 1294 n. 11. Since it does not, it appears that the six-year catch-all statute controls.

Id. at 470.

At least by the time of Morrell, “clear past precedent”, Chevron, 404 U.S. at 106, would have indicated to a plaintiff’s attorney that it would have been reasonable to assume that the six-year statute applied in all § 1983 actions against Mississippi law enforcement officers. In this case, plaintiff’s cause of action accrued in February 1982. Some nine months later, on November 1, 1982, the Fifth Circuit issued its opinion in Morrell. This court is of the opinion that plaintiff’s attorney could have reasonably relied on Shaw and Morrell in delaying filing suit in this cause past the one-year prescriptive period.

Furthermore, Gates signalled a clear departure from this precedent by rejecting the analytical approach formerly used in characterizing § 1983 claims in this circuit. Rather than comparing the particular facts underlying the § 1983 claim to factually similar state law actions, as was done in Shaw and Morrell, Gates established a uniform limitations period to apply in all § 1983 actions, regardless of the nature of the underlying wrong. Jackson v. City of Bloomfield, 731 F.2d 652, 654 (10th Cir.1984). Therefore, the court is of the opinion that Gates makes a clear break with prior Fifth Circuit decisions, exemplified in Shaw and Morrell, sufficient to establish a new principle of law for purposes of the first Chevron factor. 404 U.S. at 106.

The second of the Chevron factors requires the court to look to the history, purpose and effect of the rule in question to determine whether retrospective application will further or retard its operation. 404 U.S. at 107. The general and obvious purpose of the Gates and Wilson rulings is to promote equal treatment of similar claims, and to minimize unnecessary litigation. Wilson, 105 S.Ct. at 1947; Young v. Biggers, at -. In Jackson, the Tenth Circuit, in reviewing the goals of Wilson’s uniform limitations approach in § 1983 actions, stated simply, “On balance, we cannot say that retrospective application to bar plaintiffs’ claims at this point in litigation would either hamper or promote these goals.” 731 F.2d at 655. Weighing the purposes of uniformity and minimizing unnecessary litigation as announced in Wilson and Gates against the “high purposes of th[e] unique remedy” in § 1983, Wilson, 105 S.Ct. at 1945, and the obvious inequity of charging this plaintiff with notice that the one-year statute would be uniformly applied in the absence of clear past precedent indicating or even foreshadowing such result, this court concludes that denying retroactive application to Gates will not retard its overall purpose. These are necessarily competing interests and purposes involved in this court’s Chevron analysis. Indeed, there is a presumption of retrospecfive application inherent in the second Chevron factor. The court determines, however, considering as it must all Chevron factors under the facts of this case, that the balance should be struck against applying Gates retroactively.

The third Chevron factor requires the court to consider whether retroactive application of Gates would produce substantial inequitable results. 404 U.S. at 107, 92 S.Ct. at 355. The analysis here is necessarily subsumed in this court’s discussion of the first Chevron factor. The relevant inquiry was stated in Smith v. City of Pittsburg, 764 F.2d 188, 196 (3rd Cir.1985), wherein the Third Circuit, relying on the absence of clear past precedent, accorded retrospective application to Wilson: “Where a plaintiff could have reasonably waited to file suit under the established prior rule, it would be inequitable to say he had slept on his rights because of a later and unforeseeable Supreme Court decision.” (citing Chevron, 404 U.S. at 108, 92 S.Ct. at 356). Having determined previously that plaintiff’s attorney could have reasonably relied on the clear precedent of Shaw and Morrell in delaying the filing of the complaint in this cause, it is obvious that substantial inequity would result if the action were barred on limitations grounds, based on a change in the law occurring after the action was filed. Jackson, 731 F.2d at 655.

The fact remains that the ruling in Gates was applied retroactively to bar Mrs. Gates’ claim, with the court undertaking no discussion of retroactivity. Gates, however, was a § 1983 action against several school officials in which plaintiff claimed that she was discharged as a teacher in retribution for her exercise of rights protected by the First Amendment. 771 F.2d at 917. The district court, relying on binding circuit authority, White v. United Parcel Service, 692 F.2d 1 (5th Cir.1982), granted summary judgment on grounds that the one-year statute for actions on unwritten contracts, Miss.Code Ann. § 15-1-29, governed. 771 F.2d at 917. Thus, in Gates the application of the one-year statute in actions on unwritten contracts was not only foreshadowed but in accord with the clear past precedent.

In Young v. Biggers, per order of court 2/25/86 the court determined that Gates should be applied retrospectively to bar plaintiffs § 1983 claim. Plaintiff sued a number of defendants alleging deprivation of constitutional rights in his arrest, trial and sentencing on a charge of armed robbery. The cause of action accrued in December 1980 but plaintiff did not file his § 1983 complaint until June 1985. Young, at-. In applying the Chevron factors, the court determined that as of 1980 there was no “clear past precedent” on which plaintiff could have justifiably relied in delaying the filing of his complaint. Id. at-. Distinguishing Shaw, supra, the court stated,

Shaw, however, cannot be used by the plaintiff to support a claim that in the absence of Wilson the six-year limitations period would govern his ease. Shaw’s case is different from Young’s on its face; Shaw was characterized as a contract action while Young’s sounds in tort. It is more likely that not even preWilson and pre-Gates, under the principle of applying the most closely analogous state claim, the one-year limitations period for common-law intentional torts would have been held to be controlling in Young’s case. Thus, Young was on notice in 1980 that it would not have been reasonable to wait more than one year to file his suit.

Id. at - - -.

The court in Young did not undertake to describe the official capacities of the nine defendants still in the suit at the time of the ruling, or the underlying facts alleged, if any, to support each claim. To the extent that law enforcement officers may have been involved as named defendants, and assuming further that a colorable claim of deprivation of constitutional rights was alleged against any such defendants, Shaw may have been relied upon by plaintiff as “contrary authority” to the application of the one-year statute. Id. at-. Under the facts of this case, however, this court need not determine the precedential weight of Shaw alone. Any confusion concerning the contract theory relied upon in Shaw and the most closelv analogous actions under Mississippi law was clarified by Morrell’s flat statement that “the one-year statute governing actions for intentional torts by ordinary citizens does not apply to torts by police.” 690 F.2d at 470. As stated previously, Morrell was decided within nine months of the accrual of Stewart’s cause of action. With Shaw, it stood as clear contrary controlling authority in the circuit to the application of the one-year statute to § 1983 actions against law enforcement officers in Mississippi. Thus, plaintiff’s attorney cannot be charged with notice that the one-year statute might be applied to bar this action and it is fundamentally unfair to hold him responsible for anticipating the clear change in § 1983 law and analysis undertaken in Gates.

In conclusion, this court would note that the holding herein is limited to the particular facts of this case. The decision is premised upon application of the Chevron factors and the finding that there was clear past precedent in this circuit for the application of Mississippi’s residual six-year statute of limitations in § 1983 actions against law enforcement officers. The court reaches no conclusion with regard to § 1983 actions having different state law analogues under pre-Gates law.

For the reasons stated above, the court is of the opinion that Gates v. Spinks should not be accorded retroactive application to bar plaintiff’s § 1983 action.

Accordingly, it is ordered that defendant’s motion to dismiss or for summary judgment is denied.

      . Plaintiff has raised no objection to the form of defendant’s motion, and the court will hereinafter address the issue as if an independent motion to dismiss or for summary judgment had been filed.

      . Rehearing en banc was denied in Gates on October 22, 1985, 775 F.2d 1168.

      . The one-year statute was also applied in Boydstun v. Perry, 359 F.Supp. 48 (N.D.Miss.1973), a case which does not appear in the annotations. Boydstun, however, does not alter the relevant analysis, and, indeed, with Ballard v. Taylor, 358 F.Supp. 409 (N.D.Miss.1973), constitutes anomalous and wrong holdings under pr e-Gates Mississippi law.

      . A plaintiffs attorney researching the annotations to Miss.Code Ann. §§ 15-1-35, 15-1-49 would find the following pr e-Gates cases indicating that the residual six-year statute applied in actions brought in Mississippi under § 1983, with Ballard as the only cited anomaly: Morrell v. City of Picayune, 690 F.2d 469 (5th Cir.1982) (action under 42 U.S.C. § 1983); Shaw v. McCorkle, 537 F.2d 1289 (5th Cir.1976) (action under 42 U.S.C. § 1983); Franklin v. City of Marks, 439 F.2d 665 (5th Cir.1971) (action under 42 U.S.C. § 1983); Simons v. Columbus, 593 F.Supp. 876 (N.D.Miss.1984) (action under 42 U.S.C. § 1983); Walls v. Mississippi State Dept. of Public Welfare, 542 F.Supp. 281 (N.D.Miss.1982) (action under 42 U.S.C. §§ 1981, 1983). The residual six-year statute applied in actions brought in Mississippi under 42 U.S.C. § 1981 until the Fifth Circuit held in White v. United Parcel Service, 692 F.2d 1, 3 (5th Cir.1982), that the one-year statute on actions based on an unwritten contract of employment, Miss.Code Ann. § 15-1-29, was controlling.

      . The court notes that defendant Russell would be required, pursuant to Miss.Code Ann. § 25-1-31 (1972 and Supp.1985), to maintain a personal bond although the surety on his bond was not named in the complaint.

      . For other cases after Morrell but before Gates indicating that the six-year statute applied to § 1983 actions in Mississippi, see Breland v. Board of Educ. of Perry County, 729 F.2d 360, 362 (5th Cir.1984); Simons v. City of Columbus, 593 F.Supp. 876, 878 (N.D.Miss.1984); Mathis v. Indem. Ins. Co. of North America, 588 F.Supp. 489, 493 (S.D.Miss.1983).

      . In Jackson, the Tenth Circuit refused to accord retroactive application to the uniform rule on limitations in § 1983 actions developed in Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984) (en banc), aff'd — U.S. —, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Although the Jackson court relied on clear past precedent in the Tenth Circuit in denying retroactive application, this court finds its reasoning compelling in view of the existence of Fifth Circuit precedent specifically holding that the six-year statute applied in § 1983 actions against Mississippi law enforcement officials.

      . In Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (5th Cir.1983), the Fifth Circuit indicated that greater weight should be given to the second Chevron factor than whether there existed contrary past precedent and substantial equitable considerations militating against the retroactive application of a new rule:
      [I]n deciding whether civil rules should be applied retroactively we think that the purpose of the rule should be given greater weight than the extent to which the parties relied on the law that existed before the rule was announced.
      720 F.2d at 862 (citations and quotations omitted). See also Antoine v. United States Postal Service, 781 F.2d 433 (5th Cir.1986).
      In both Edwards and Antoine, however, the Fifth Circuit had determined that there was no clear past precedent on which the plaintiffs could have relied in delaying filing their complaints. The court was thus faced with a complete absence of the first and third Chevron factors and did not have to weigh them in the balance with the presumption that retroactive application would further the operation of the new uniform rule. Under the facts of this case, the court’s duty is to weigh all Chevron factors in reaching a result in accord with equity. Additionally, neither Edwards nor Antoine were § 1983 actions.

      . See supra note 3.

      . Significantly, Young’s complaint was filed some two months after the decision in Wilson was issued. Young, at -.


author: BIGGERS, District Judge.

text:
    MOORE BAYOU WATER ASSOCIATION, INC., Plaintiff, v. TOWN OF JONESTOWN, MISSISSIPPI, et al., Defendants.
    No. DC85-144-NB-O.
    United States District Court, N.D. Mississippi, Delta Division.
    Feb. 5, 1986.

      James H. Herring, Canton, Miss., Shed Roberson, Clarksdale, Miss., for plaintiff.
    Tyree Irving, Greenville, Miss., for defendants.
   MEMORANDUM OPINION

BIGGERS, District Judge.

The present cause comes before the court on the motion of plaintiff, Moore Bayou Water Association, Inc., for summary judgment against the defendants, the Town of Jonestown, Mississippi and its Mayor and Board of Aldermen, on its prayer for declaratory and injunctive relief made pursuant to its claim under 7 U.S.C. § 1926(b). Having considered the pleadings, memoranda, and affidavits submitted by the parties hereto, and being fully advised in the premises, the court is now in a position to rule on the motion.

The plaintiff, Moore Bayou Water Association, Inc. (Moore Bayou), is a non-profit corporation created and existing under the laws of the State of Mississippi and is engaged in operating a private rural water system in an area located within Coahoma and Quitman Counties. On September 3, 1974, the Mississippi Public Service Commission granted to Moore Bayou a permanent and exclusive certificate of public convenience and necessity to provide water services in certain areas located in the above named counties, including the areas immediately adjacent to the Town of Jones-town. Moore Bayou received funding from the Farmers Home Administration (FmHA) in the form of a loan, pursuant to 7 U.S.C. § 1926 for construction of the water facilities.

On January 2, 1981, Jonestown annexed a certain area served by Moore Bayou. As a consequence of the annexation, various municipal services were made available to the residents of the annexed area with the exception of water services which continued to be provided by Moore Bayou.

On March 20, 1984, Jonestown informed Moore Bayou by letter that it intended to take Moore Bayou’s exclusive service rights and water facilities located within the town boundaries through eminent domain proceedings unless a satisfactory price could be agreed upon. Moore Bayou then filed the present action in this court on June 5, 1985 alleging that Jonestown and its governing body, acting under color of law, intended to infringe upon Moore Bayou’s exclusive service area through eminent domain proceedings in violation of 7 U.S.C. § 1926(b), and to wrongfully deprive Moore Bayou of its vested property rights and the benefits of its exclusive certificate of public convenience and necessity without due process of law in violation of 42 U.S.C. §§ 1983 and 1985 and the Fifth and Fourteenth Amendments to the United States Constitution. Moore Bayou seeks declaratory and injunctive relief in order to prevent the defendants from infringing upon Moore Bayou’s exclusive certificate of public convenience and necessity and from owning and operating a water system in Moore Bayou’s exclusive service area. Moore Bayou has now moved for summary judgment on the issue of whether Jones-town is prevented, by virtue of 7 U.S.C. § 1926(b), from condemning Moore Bayou’s water facilities and right to provide water services to areas located within the corporate limits of Jonestown.

Title 7,1926(b) provides in pertinent part:

(b) The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body; or by the granting of any private franchise for similar service within such area during the term of such loan____

The above provision rather clearly states that municipalities or any other government body may not curtail the water services offered by a rural water association indebted to the FmHA. Thus, it is Moore Bayou’s contention that section 1926(b) has preempted the Mississippi law which enables the defendants to institute condemnation proceedings in an effort to obtain the right to provide water services to the area in question.

In response, the defendants argue that while section 1926(b) appears at first glance to bar them from condemning plaintiff’s rights and facilities as long as the plaintiff remains indebted to the FmHA, reference must also be made to the legislative history and the underlying purpose of section 1926(b). Considering section 1926(b) in its proper context and not in a vacuum, it is argued, would necessarily lead to the conclusion that this section would operate to bar the defendants from pursuing their contemplated action only where it is found that such action would necessarily and significantly impair the ability of Moore Bayou to repay the FmHA loan.

Reference is thus made to the legislative history of 7 U.S.C. § 1926(b) contained in the U.S.Code Congressional and Administrative News, 87th Cong., 1961, Vol. 2, pages 2243, 2309, which states:

By interpretation loans to associations cannot now be made unless a major part of the use of the facility is to be by farmers. This section would broaden the utility of this authority somewhat by authorizing loans to associations serving farmers, ranchers, farm tenants, and other rural residents. This provision authorizes the very effective program of financing the installation and development of domestic water supplies and pipelines serving farmers and others in rural communities. By including service to other rural residents, the cost per user is reduced and the loans are more secure in addition to the community benefits of a safe and adequate supply of running household water. A new provision has been added to assist in protecting the territory served by such an association facility against competitive facilities which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies in an area served by the rural system (emphasis added).

There is also included, at page 2305, a “Short Explanation” of Title III of the Agricultural Act of 1961:

This title—
9. Prohibits curtailment of a water association borrower’s service as a result of inclusion of its service area within the boundaries of any public body or as a result of the granting of any private franchise for similar service in such area.

Although unstated in the above passages, the defendants argue that it is nonetheless clear that the purpose of section 1926(b) is to protect the ability of Moore Bayou to repay its loan obligation. The defendants suggest that since the evidence establishes that Moore Bayou receives approximately two hundred dollars ($200.00) per month from its customers in the disputed area, which the defendants characterize as “negligible,” the condemnation of Moore Bayou’s water service rights and facilities would not necessarily result in an impairment of the plaintiff’s ability to meet its loan obligation. In any event, the defendants assert that the question of whether the loss of such monies would result in an impairment constitutes a genuine issue of material fact and therefore summary judgment is inappropriate.

The court finds the defendants’ arguments to be unpersuasive. While this court must seek to effectuate the legislative intent in construing a particular statute, primary reliance must be placed on the language of the statute itself. Steere Tanklines, Inc. v. I.C.C., 724 F.2d 472, 477 (5th Cir.1984). Resort to materials extrinsic to the statute, for example, the legislative history, is necessitated only when the statutory language is found to be ambiguous or compliance would yield an absurd result. Id. American Trucking Associations, Inc. v. I.C.C., 659 F.2d 452, 459 (5th Cir.1981). In the instant ease, a reading of section 1926(b) does not reveal either ambiguity in its meaning or absurdity in its application. The section clearly prohibits any curtailment or limitation of the service provided by a rural water association re-suiting from the inclusion of all or a part of its territory within a municipality while the association is indebted to the FmHA. Its prohibition is not conditioned on a finding that a given encroachment will significantly impair the ability to repay the FmHA loan.

However, even if this court were to indulge the defendants and resort to an examination of the legislative history, the court would find that the legislative history is equally clear regarding the underlying purpose of section 1926(b), i.e., protecting the territory served by such association against competitive facilities which may be developed with the expansion of municipal boundaries. See Rural Water District No. 3 v. Owasso Utility Authority, 530 F.Supp. 818 (N.D.Okla.1979). Because this section affords protection only to those rural water associations indebted to the FmHA, it may be correct to infer that section 1926(b) was ultimately designed to protect an association’s ability to meet its loan obligation. But this conclusion does not require or permit this court to condition the prohibition contained in section 1926(b) upon a finding that a particular encroachment would necessarily result in a significant impairment. To follow this approach would allow the piecemeal erosion of the area served by a rural water association to occur as long as any single attempt would not result in a finding of significant impairment. Such result would clearly be contrary to the expressed intentions of Congress as contained in section 1926(b) and its legislative history.

Applying the above construction to the facts in the present case, the court finds 7 U.S.C. § 1926(b) bars the defendants from condemning Moore Bayou’s water service rights and facilities while Moore Bayou remains indebted to the FmHA.

Based on the foregoing, the court finds that there is no genuine issue of material fact and therefore finds Moore Bayou’s motion for summary judgment on its claim for declaratory and injunctive relief under 7 U.S.C. § 1926(b) to be well taken and should be granted.

Let an order issue accordingly.


author: REAL, Chief Judge.

text:
    In the Matter of the EXTRADITION OF Andrija ARTUKOVIC. Andrija ARTUKOVIC, Petitioner, v. Richard RISON, Warden, Respondent.
    Nos. CV 84-8743-R(B), CV 85-3611-R.
    United States District Court, C.D. California.
    Feb. 6, 1986.

      Robert C. Bonner, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Div. by David Nimmer, Asst. U.S. Atty., Los Angeles, Cal., and, Murray R. Stein, Associate Director, Office of Intern. Affairs, U.S. Dept, of Justice, and Ronnie L. Edelman, Trial Atty., Office of Special Investigations, U.S. Dept, of Justice, Washington, D.C., for U.S.
    Gary B. Fleischman and Michael P. Dacquisto, Beverly Hills, Cal., and Ronald H. Bonaparte of Los Angeles, Cal., for respondent.
   ORDER ADOPTING OPINION OF MAGISTRATE

REAL, Chief Judge.

This matter is before the court upon a Writ of Habeas Corpus in the nature of a review of the decision of Magistrate Volney V. Brown, Jr., ordering extradition of petitioner to Yugoslavia to answer charges of murder.

The court has reviewed the entire record in this matter, has considered all of the evidence and arguments submitted by the parties in the extradition hearing and with this Petition for Writ of Habeas Corpus.

IT IS ORDERED the court adopts the opinion heretofore filed by Magistrate Brown on all issues presented to him during the extradition hearing. The opinion of Magistrate Brown correctly states the law and is supported by evidence presented during the many hearings held by the magistrate. The opinion adopted is specifically that Amended Opinion filed August 9, 1985 and now instructs the Clerk to enter orders made therein as the Order of this court.

The Petition for Writ of Habeas Corpus adds nothing to the review function of this court on the extradition question.

The petition is denied.

AMENDED OPINION

August 8, 1985

VOLNEY V. BROWN, Jr., United States Magistrate.

I

The Honorable Borislav Krajina, Federal Secretary for Justice of the Federal Socialist Republic of Yugoslavia [“Yugoslavia”], by request dated July 19, 1984, sought the extradition of Andrija Artukovic [“respondent”] for prosecution in the District Court of Zagreb, pursuant to an indictment of February 29, 1984. The indictment charged “criminal offence against humanity and international law — war crime committed against the civilian population” [“war crimes”] proscribed by Yugoslavian Article 142, recently enacted. The 1984 indictment amended and incorporated an indictment of September 4, 1951, charging murder in violation of Article 135(2) then in force, of which indictment this Court takes judicial notice from its own records in Karadzole v. Artukovic, 170 F.Supp. 383 (S.D.Calif.1959).

Pursuant to a complaint for extradition filed on November 14, 1984, respondent was arrested and held without bail. The complaint alleges that he “is duly and legally charged with murder, in violation of the laws of and in the jurisdiction of the Government of Yugoslavia;” that murder “is among the offenses enumerated in Article II of the Treaty of Extradition between the United States and Servia (now Yugoslavia) of May 17, 1902, 32 Stat. 1890 [“Treaty”], which is still in full force and effect; that the offense charged “is a proper ground for this Court to order extradition pursuant to Title 18, United States Code, Section 3184;” and, that respondent should therefore “be surrendered to competent authorities of Yugoslavia.”

This Magistrate has jurisdiction conferred directly by the Treaty, by 18 U.S.C. § 3184, and by the Local Rules of the United States District Court for the Central District of California.

II

The following questions must be answered:

1. Does respondent possess the requisite mental competence?
2. Is the action barred by the doctrine of res judicata?
3. Was due process violated by excessive delay in refiling for extradition?
4. Is evidence offered by the Government admissible?
5. Is the political character defense applicable?
6. Is the charging document specific?

III

The facts necessary for a determination of this matter are as follows:

During World War II, the Germans and Italians invaded Yugoslavia. On April 10, 1941, at the behest of the Ustasha, a political organization which was or became armed, the Axis permitted the creation of the Independent State of Croatia. Respondent became Minister of Interior and held other high offices. There was conflict between Croatians, Serbians, Communists, Jews, Christians (Orthodox and Roman Catholic), Moslems and others, and these groups variously fought, persecuted each other and/or fled. Affidavits in evidence show that tens of thousands of atrocities were committed.

Among the older documents in evidence is the affidavit of Franjo Truhar, dated April 25, 1952 (Excerpts, Tab 10, pp. 65 et seq.). He is a self-described “Croat,” who says the Ustashas made him Chief of Police in Zemun in April and May, 1941. It is his testimony that Jesa Vidic, a former national delegate, was

“imprisoned and sent at the request of Artukovic to the ‘Danica’ camp, where he was interned for a certain time. His wife, Olga Vidic, came to see me, and that was in July 1941, with a petition addressed to Minister Artukovic in which she offered to cede 150 Jutros [acres] of land if he permitted her husband to resettle in Serbia. I brought this request in person to Artukovic in Zagreb, and handed it to him, to which he answered me: ‘What did you bring this petition to me for, I will kill him and take, not 150, but 300 Jutros of land.’ Later Artukovic himself sent the order for Dr. JESA VID-IC to be killed, which was also carried out, and all of the land was taken and given to Ustasha Stjepan Vinek in Sremska Mitrovica.”

A “new” affidavit in evidence is that of Avdic Bajro, dated July 6, 1984 (Excerpts, Tab 11, pp. 74 et seq.) Born in 1924, this witness says that, following training, in November, 1941, he was “ordered into the motorized unit of the state escort sérvice to escort leader Pavelic, Andrija Artukovic Minister of Interior Affairs and other ministers of the NDH ... Independent State of Croatia.”

“I was also present by the end of 1941 at Kresimir’s Trg when an autocade of trucks full of arrested partisans, Jews and others, in my estimate some seven hundred people among them many women and small children, was taken, as I overhea[r]d Artukovic order Lahovski, to Kerestinac, the collecting camp in the vicinity of Zagreb. Artukovic followed the autocad[e] to Kerestinac and as I was his escort I heard when Andrija Artukovic told Lahovski that the back part of the autocad[e] of trucks must be disposed of because it would be too much for the camp. So women, children and men were taken out of the trucks, in my estimate some 400-500 persons and by machine-gun fire were killed by ustashas at the order of Artukovic, while the others were taken to Kerestinec camp.”

This is a first-person account of the killing of certainly entirely helpless prisoners, at the direct order of respondent and in his immediate presence.

Witness Bajro also states that he accompanied the respondent and others in the beginning of 1942 to where Ustashas were carrying out a military offensive against partisans. He says that in the village of Vrgin Most respondent, “after learning that in the houses women, children and men were locked, [ordered] the tanks towards these houses, to penetrate them and destroy them completely together with all men, women and children inside____”

Continuing his testimony, witness Bajro says:

“I remember well that while returning back we visited Vrgin Most again and that corporal Stilinovic informed chiefs Pivac Oreskovic and Saric that his whole unit was destroyed, as he said, in the vicinity of Vrgin Most in the fight with partisans and that' some two hundred Ustashas died. When Artukovic heard that he ordered that all the population of the nearby villages be arrested and brought into the plain, which was done and many people, women and children were killed ... by machine-gun fire of German production. Machine-guns were ‘shard’ having 3000 bullets in a belt. I was also escorting Pavelic and Artukovic when they were visiting the site of Rozara because they wanted to see the positions at which some 500 to 600 ustashas had died in the battle with partisans. I know that on that occasion we drove to the monastery Moscenica, a very nice monastery, and Artukovic ordered Lahovski the commander of escorts to gather all civilian population from the houses, old ones, sick, women, children and men, to gather at least five thousand of them and to kill them all because five hundred ustashas have perished in the vicinity of the Moscenica monastery. This was done and a large number of civilian population from the nearby villages was gathered, mostly women and children and shot, some of them then and there close to the monastery and some of them were taken away and killed later on.”

These deaths on the return to Vrgin Most, and of civilians gathered from the vicinity of the monastery Moscenica, were not in the course of military action, but of persons “arrested” or “gathered” and, therefore, not a military threat.

The pertinent testimony of witness Bajro concludes with these words:

“I remember well that at the beginning of the year 1943 I was escorting Pavelic and Artukovic when they went to Samobor and on that occasion we came to a castle where some several hundreds of partisans, men and women, were imprisoned I know well that the commander of operative groups of ustashas informed Artukovic and Pavelic that partisans were captured at Zumberk and Artukovic together with Pavelic ordered then, they both ordered, that all partisans imprisoned there, be killed which was done during that day and night and I have been present there. They were killed in such a way that they were taken to the field, tied and killed by machine-gun fire while some of them were passed over by tanks.”

Respondent is now an older man, born on or about November 19, 1899. He suffers from a number of serious medical conditions, for which, since his arrest, he has received superb medical treatment, first at the Los Angeles County — U.S.C. Hospital, and then at the United States Naval Hospital at Long Beach. On the question of his competence, medical reports were received, physicians testified and the Magistrate personally observed respondent in the courtroom. His health has improved markedly since his arrest. Where before he was usually confused, during the daytimes he is now usually alert. Where before he was bedridden and had bed sores, he now walks, climbs stairs and has healed.

IV

1. Does Respondent Possess the Requisite Mental Competence?

It is necessary that respondent, first, be competent to assist in the preparation of his own defense. He has been sufficiently competent in this respect, according to the reports and testimony of his attending Navy physician, Dr. Hill, and of the court’s own appointed Psychiatrist. It is necessary that respondent, second, be competent during the hearings. The required standard is set forth in Chavez v. United States, 641 F.2d 1253, 1259 (9th Cir.1981): he must be able to understand the nature of the proceedings and to participate intelligently to the extent his participation is required. Again, evidence and observation show the requisite mental abilities.

The Government’s contention that the competence of Mr. Artukovic “is not a proper subject of inquiry in this extradition matter” is rejected. The Sixth Amendment guarantees him, as all persons before the court in matters affecting life and liberty, the effective assistance of counsel. Meaningful consultation between attorney and client is an essential element of competent representation. United States v. Tucker, 716 F.2d 576, 581 (9th Cir.1983). Furthermore, respondent’s Fifth Amendment right to a fair hearing requires that he be shown to have the minimum competence defined in Chavez. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966).

2. Is the Action Barred by the Doctrine of Res Judicata?

In 1959, Commissioner Theodore Hocke rejected much of the evidence presented herein and denied the application for extradition. See Karadzole v. Artukovic, supra, 170 F.Supp. 383 (S.D.Calif.1959).

Respondent contends that res judicata requires dismissal of this action. The Magistrate has, however, rejected respondent’s motion to dismiss on this ground. The principle of res judicata is not applicable to international extradition proceedings. Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.1978), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978).

3. Was Due Process Violated by Excessive Delay in Refiling for Extradition?

Respondent further contends that due process was violated by a delay of 25 years in refiling for extradition. This contention is without merit. Due process may require dismissal of charges if it is shown that a pre-indictment delay caused substantial prejudice to the respondent’s rights to a fair trial and that the delay was intentional so as to gain a tactical advantage over the accused. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). But the focus of inquiry must be whether the United States, not Yugoslavia, acted unconstitutionally. Matter of Burt, 737 F.2d 1477, 1487 (7th Cir.1984). Respondent has not sustained his burden of proving either prong of the Marion rule.

Permitted to question, as on cross-examination, Neal Sher, Chief of the Office of Special Investigations, Criminal Division, United States Department of Justice, made available as a witness at the Court’s request, respondent’s counsel succeeded in showing only that the instant extradition action was indeed initiated at Yugoslav instance. There is no evidence, nor indeed suspicion, that the United States Government, or any of its agents, has been guilty of any wrongful conduct in connection with the instigation of this proceeding. Respondent may, of course, present the question of unfairness occasioned by a proposed prosecution more than forty years after the events mentioned in the indictment to the Secretary of State and, if necessary, to the Yugoslav court.

4. Admissibility of the Government’s Evidence.

Respondent has moved to dismiss on the ground that the Government impermissibly introduced Yugoslavian Article 167 during rebuttal. This motion was denied, because the Government was permitted to reopen for this purpose, and because evidence that murder was proscribed in Yugoslavia at all pertinent times is otherwise before the Court. That Article 167 does not address aiding and abetting is irrelevant, in view of the provisions of Article II of the Treaty as to “participation” in enumerated crimes.

The Government, on behalf of Yugoslavia, has offered translations into English which have not been certified by the American Ambassador under 18 U.S.C. § 3190, although the Serbo-Croatian originals were. Respondent argues that these translations are, therefore, inadmissible. While § 3190 makes evidence certified as admissible in the tribunals of the requesting country admissible in our courts, it is not true that the Government may introduce evidence only by way of such certification. The English translations may be proved as any other fact. Respondent may challenge the accuracy of the Government’s translations and/or offer his own. In re Extradition of David, 395 F.Supp. 803, 806 (E.D.Ill.1975), aff'd sub nom. David v. Attorney General, 699 F.2d 411 (7th Cir.1983), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983).

5. Political Offense Exception to Extradition

To successfully assert the “political character” defense, respondent must show that there was a political uprising or disturbance at the time of the offense and that the offense charged was “incidental” to, or part of the political disturbance. Eain v. Wilkes, 641 F.2d 504, 515-16 (7th Cir.1981), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); In re Castioni, [1891] 1 Q.B. 149. Evidence of record amply supports the finding that uprisings and disturbances, within the meaning of the defense exception, existed in Croatia during all pertinent times. Nevertheless, respondent cannot avail himself of the defense merely because the alleged crimes occurred at the same time as a political disturbance. A rational nexus between the alleged crimes and the prevailing turmoil must be demonstrated. In searching for such a connection, the focus of inquiry is on the circumstances, and on the status of those harmed, and not on whether the acts merely were committed during the disorder. See Ornelas v. Ruiz, 161 U.S. 502, 511, 16 S.Ct. 689, 692, 40 L.Ed.2d 787 (1896), where the Supreme Court concurred in the magistrate’s refusal to apply the exception “in view of the character of the foray, the mode of attack, the persons killed or captured, and the kind of property taken or destroyed.” [Emphasis added]

Those murders as to which it is hereinafter found there is probable cause to believe respondent committed do not come within the “political character” defense. Respondent’s statement of his motives would be irrelevant. Eain, supra, 641 F.2d at 520. (“[F]or purposes of extradition, motivation is not itself determinative of the political character of any given act.”) The facts and circumstances in evidence show that the murders were not of a “political character” within the meaning of the Treaty; they were for personal gain, racial or religious hatred, and/or impermissible vengeance upon disarmed enemy soldiers. Ridding a country of some of its population for such reprehensible reasons, as part of some larger political scheme, is not a crime of a “political character” and is thus not covered by the political offense exception to extradition. Eain, supra, 641 F.2d at 521.

6. Specificity in the Charging Document

The Magistrate must make a determination as to whether each specific charge forms the basis for extradition, at least where, as here, the Treaty incorporates the principles of “dual criminality” and “specialty.” Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir.1981). Thus there must be a focus on each count of the foreign indictment, complaint, warrant, summons, or other charging document. As is more fully discussed in the Order filed March 4, 1985, the Government’s argument that prefatory language in the 1984 Yugoslavian indictment will support extradition for alleged murders of other than Dr. Vidic is rejected. Such language is not specific enough to permit this court to analyze dual criminality sufficiently, or to ensure that the principle of specialty will be honored.

V

Preliminarily, it is noted that, by its instant request, Yugoslavia seeks to extradite the respondent to try him for the war crimes proscribed by Article 142, enacted long after the last of the alleged crimes was committed. That respondent could not be prosecuted under such an ex post facto law in this country is not significant in this proceeding: due process cannot be extended extraterritorially. Kamrin v. United States, 725 F.2d 1225, 1228 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 85, 83 L.Ed.2d 32 (1984), citing Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). What is significant is that extradition can be achieved only for crimes mentioned in the Treaty. Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); cf. Hooker v. Klein, supra, 573 F.2d at 1368. War crimes mentioned in the Treaty. Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); cf. Hooker v. Klein, supra, 573 F.2d at 1368. War crimes are not mentioned in the Treaty. Even if they were, the principle of “dual criminality,” incorporated in Article I of the Treaty, would not permit extradition for war crimes. Under “dual criminality,” one can be extradited only if the offense charged in the requesting country is an offense in the place where the fugitive is found. Collins v. Loisel, 259 U.S. 309, 312, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922). “War crimes” are not proscribed in California or the United States. For the same reasons, illusions to “genocide,” as such, in the requesting papers and evidence, are irrelevant.

Implicitly recognizing the above, the Government seeks to extradite respondent only for “murder.” At all pertinent times, murder has been a felony in California (Penal Code Sections 187 et seq.) and the United States. 18 U.S.C. § 1111. The Magistrate finds, from the testimony of the historian witnesses, that murder was proscribed by the government immediately preceding that of the Independent State of Croatia, and that this proscription was continued in effect during all pertinent times. Then and there respondent was protected by sufficient force, so that the laws under which he lived and acted were at no time those of military forces other than his own, such as those of the Axis powers. Furthermore, the present Federal Socialist Republic of Yugoslavia proscribed murder no later than September, 1951 (see indictment at Excerpts, page 160) by means of Article 135, in evidence herein. As has been shown, it is not an obstacle in this proceeding, although it may be in Yugoslavia, that Article 135 may be an ex post facto law as to the crimes charged against respondent. As to murder charges, therefore, the Treaty requirements are satisfied.

VI

The Magistrate finds:

Much of the evidence presented herein apparently was rejected by Commissioner Theodore Hocke in 1959. Karadzole v. Artukovic, supra, 170 F.Supp. 383 (S.D.Calif.1959). While such evidence raised the suspicion that the respondent participated in the creation and/or maintenance of concentration camps where predominantly Jews, Serbs, and Gypsies, women and children as well as men, were killed or permitted to die, it does not begin to rise to the level of probable cause which must be proved before an extradition can be certified. Other evidence, consisting of respondent’s alleged proclamations and racist speeches, does not even raise a suspicion of extraditable misconduct, although it merits the opprobrium of all decent people. As to this evidence, which forms the great bulk of the material admitted herein, the words of Mr. Chief Justice Holmes in Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911) are apposite:

“[0]f course a man is not to be sent from the country upon demand or surmise,” but instead only upon “such reasonable grounds to suppose him guilty as to make it proper that he should be tried____”

The affidavit of Franjo Turhar supplies ample probable cause to believe that respondent “participated” (Treaty, Article II, subd. 12) in the crime of murder of Jesa Vidic, extradictable under Treaty, Article II, and accordingly he should be extradited to face this single charge, which is found in the 1984 indictment, page 200 of Excerpts.

The engagement on the first described visit to Vrgin Most appears to have been a prototypical military operation against an armed enemy. It is by no means certain that armed women, as well as men, were not among the partisans opposing respondent's troops. That some noncombatants may have been killed incidental to a military operation does not constitute murder. Upon his extradition, respondent may not be tried for these deaths at Vrgin Most.

The affidavit of Avdic Bajro provides overwhelming probable cause to believe that respondent was directly responsible for the 400 to 500 killings of helpless prisoners at Kresimir’s Trg, the deaths on the return to the vicinity of Vrgin Most, the deaths of the civilians gathered from the vicinity of the Monastery Moscenica, and the killing of the several hundred partisans of the castle near Samobor; and that he should accordingly be extradited to face a murder charge for each of these deaths, if they are alleged in a charging document before this Court.

VII

Disposition

The United States Attorney shall prepare a form of certificate for the crime of murder of Jesa Vidic for the Magistrate’s signature. The effect of said certificate, however, is stayed to and including May 3, 1985, during which time the Court retains jurisdiction in this action. If, during the period of the stay, the Government serves and files an amended indictment, complaint, warrant or other charging document of Yugoslavia, duly certified and transmitted, alleging the crime of murder against respondent for each or any of the murders (other than that of Vidic) as to which it has been found there is probable cause to believe were committed by respondent, the Magistrate intends to certify these additional charges for extradition and trial. Upon such filing, respondent shall be afforded a hearing on the question of “dual criminality” and the form and content of any proposed further certificate for extradition.

Supplemental Proceedings

The Government timely filed a Submission of Supplemental Certified Documents containing, inter alia, an Amendment of Indictment, dated March 26, 1985, from the District Court of Zagreb, Yugoslavia. A hearing was held on the matter on May 1, 1985.

Respondent’s counsel expressly refused to waive his presence, and the respondent was present throughout the hearing. After the proffer of evidence by each party on the question of respondent’s then competence, the Magistrate’s own observations, and oral argument, it was held that respondent was no less competent than during the evidentiary stages of the proceedings, when he was shown competent by medical evidence.

In the supplemental papers, Yugoslavia provided information which neither the Court nor the Government had requested. Held: only evidence of those laws and statutes of Yugoslavia and predecessor governments, which was introduced and argued at the earlier probable cause hearings, will be taken into account by the Magistrate.

An Amended Certificate of Extraditability is ordered filed and forwarded to the Secretary of State. The Amended Certificate is expressly limited to the following charges of murder:

—Dr. Jesa Yidic;
—Between four and five hundred persons murdered by machine-gun fire, after being removed by autocade from Kresimir’s Trg towards Kerestinec, in late 1941;
—The entire civilian population of several villages near Vrgin Most, murdered in a nearby valley by machine-gun fire in early 1942;
—Approximately five thousand (5000) persons, murdered by rifle fire and otherwise near the Moscenica monastery in the Kozara region in 1942; and
—Several hundred persons, captured in the Zumberg region, murdered by machine-gun fire and by being crushed under moving tanks, in the vicinity of Samobor Castle, in early 1943.

      . The following is the published chronology in this matter. Artukovic v. Boyle, 107 F.Supp. 11 (S.D.Cal.1952), rev’dsub nom. Ivancevic v. Artukovic, 211 F.2d 565, (9th Cir.1954), cert. denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645 (1954), rehearing denied, 348 U.S. 889, 75 S.Ct. 202, 99 L.Ed. 645 (1954); Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Cal.1956), aff'd sub nom. Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), vacated, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958), decision on remand, supra, 170 F.Supp. 383 (S.D.Cal.1959).

        . Ivancevic v. Artukovic, supra, 211 F.2d at 573.

      . Article 135 provides in pertinent part: "(2) Whosoever takes the life of another in a cruel or treacherous way, or in such a way as to cause endangerment to the life of many persons, or for gain, or for the purpose of committing or covering up another criminal act, or for other vile motives, or whosoever takes the lives of several persons, shall be punished by imprisonment fot at least 10 years or by death sentence.”

      . Respondent attempted to show that tanks were unavailable to him, for which reason the testimony of Bajro is untrustworthy. Such evidence, however, is unconvincing and does not "explain” why the evidence of this witness should be rejected.