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2021-01-26 22:00:33.940017+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-26/C:20-2145:J:PerCuriam:aut:T:npDp:N:2650824:S:0

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2145 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BYRON BLAKE, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:06-CR-30146-NJR-1 — Nancy J. Rosenstengel, Chief Judge. ____________________ SUBMITTED JANUARY 21, 2021 — DECIDED JANUARY 26, 2021 ____________________ Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. Byron Blake is serving a sen- tence of 420 months’ imprisonment for cocaine offenses. The district court concluded that he is responsible for at least 13 kilograms of crack. Blake contended on appeal that this fig- ure is too high. In affirming his sentence, we held that the dispute was not material under the statutes and guidelines then in force, because any amount over 1.5 kilos had the 2 No. 20-2145 same effect. United States v. Blake, No. 07-2704 (7th Cir. Aug. 8, 2008) (nonprecedential disposition). Five years later, the court rejected Blake’s effort to set aside his sentence on col- lateral review under 28 U.S.C. §2255. Blake v. United States, 723 F.3d 870 (7th Cir. 2013). Blake was sentenced before the Fair Sentencing Act of 2010 took effect, and he therefore did not benefit from the changes it made to the rules (both statutes and Sentencing Guidelines) for sentencing persons convicted of crack- cocaine offenses. Dorsey v. United States, 567 U.S. 260 (2012). But §404 of the First Step Act of 2018 makes the 2010 Act ret- roactively applicable to persons who would have been with- in its scope had they been sentenced after its effective date. Blake then asked the district court for a lower sentence. The district judge concluded, however, that Blake, who has a his- tory of violence, does not deserve a benefit from the 2018 Act whether or not he is eligible for one. United States v. Blake, 2020 U.S. Dist. LEXIS 107708 (S.D. Ill. June 19, 2020). We do not consider whether the district judge made a le- gal error or abused her discretion, because a preliminary procedural issue requires resolution. Blake’s lawyer wants to withdraw, and Blake opposes that motion; he contends that we should compel counsel to continue the representation. This poses the question whether Blake has a right to the as- sistance of counsel at public expense. If not, there is no ap- parent ground for obliging a lawyer to carry on with an ap- peal he deems frivolous. In seeking leave to withdraw, defense counsel filed a brief modeled on the procedure established by Anders v. Cali- fornia, 386 U.S. 738 (1967). The brief explains why counsel deems the appeal to be frivolous. But it does not rely on An- No. 20-2145 3 ders, recognizing that Anders does not apply. The Supreme Court devised the Anders procedure to reconcile competing rules: on the one hand, a person sentenced to prison has a constitutional right to the assistance of counsel on appeal (and at public expense, if indigent); on the other hand, every lawyer has an ethical obligation not to pursue frivolous liti- gation. An “Anders brief” laying out the arguments pro and con enables a court to decide whether the appeal really is frivolous. If so, it concludes the appeal; if there is a non- frivolous issue, however, the court requires the lawyer to continue representing the defendant, because the ethical ob- ligation to avoid frivolous litigation drops out. Once the direct appeal is over, however, the Constitution no longer requires the government to ensure that the de- fendant has a lawyer. So there is no constitutional right to counsel at public expense when asking the Supreme Court for a writ of certiorari. See Ross v. MoffiB, 417 U.S. 600 (1974). Nor is there a constitutional right to appointed counsel when pursuing a collateral alack under §2255. See Lavin v. Red- nour, 641 F.3d 830 , 833–34 (7th Cir. 2011). Lavin observes that courts may ask lawyers to represent prisoners, and many lawyers do so willingly, but it holds that a prisoner does not have a right to have a court compel a lawyer to represent him on collateral review. The statute authorizing many retroactive adjustments, 18 U.S.C. §3582(c)(2), is not part of the process of conviction or direct appellate review, and a request for resentencing under that section does not entail the sort of procedure that is ap- propriate to an initial sentencing. See Dillon v. United States, 560 U.S. 817 (2010). We have accordingly held that the Con- stitution does not entitle a prisoner seeking a lower sentence 4 No. 20-2145 to the appointment of counsel at public expense. See, e.g., United States v. Forman, 553 F.3d 585 , 590 (7th Cir. 2009) (cit- ing cases). United States v. Foster, 706 F.3d 887 (7th Cir. 2013), adds that the Criminal Justice Act, 18 U.S.C. §3006A, also does not entitle a defendant to appointed counsel at public expense when seeking a lower sentence under §3582(c). See also United States v. Webb, 565 F.3d 789 , 795 (11th Cir. 2009). District judges have discretion to recruit and sometimes ap- point counsel for prisoners seeking post-judgment benefits, see United States v. Guerrero, 946 F.3d 983 , 985 (7th Cir. 2020), but prisoners do not have a constitutional or statutory enti- tlement to appointed counsel. Section 3582(c)(2) is not the only law permiling a district court to reduce sentences because of retroactive legal chang- es. Section 404(b) of the 2018 Act provides its own authority to do this: A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the alorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was commiled. See also United States v. SuBon, 962 F.3d 979 (7th Cir. 2020). But this does not imply a constitutional entitlement to ap- pointed counsel, nor does the 2018 Act supply a statutory entitlement. An administrative order issued by the Southern District of Illinois (where Blake’s litigation occurred) recog- nizes that he does not have an entitlement to counsel but ob- serves that the Federal Defender has offered to supply repre- sentation as a service to both the judges and the prisoners. It is a lawyer from the Federal Defender who has represented No. 20-2145 5 Blake so far. Having opted in as a service, counsel has not locked the door behind himself. It follows that we must deny Blake’s request that his cur- rent lawyer be compelled to continue providing legal ser- vices. Counsel may or may not be right in thinking that Blake’s appeal is frivolous, but he is entitled to withdraw his services to honor his ethical obligation not to pursue a claim that he honestly believes to be frivolous. This conclusion does not end the appeal. Blake is entitled to represent himself or to seek the aid of a lawyer willing to provide it. This appeal has yet to be briefed. Blake has told us why (in his view) counsel should not be allowed to with- draw, but he has not had an opportunity to file a brief on the merits. And we have not heard from the United States. This court therefore gives Blake 45 days (until March 12, 2021) to file an opening brief. The rest of the briefing sched- ule will follow the Federal Rules of Appellate Procedure. If within 30 days a lawyer files an appearance on Blake’s be- half, we will entertain a motion from counsel to reset the briefing schedule. Bolom line: Counsel’s motion to withdraw is granted, but his proposal to dismiss the appeal (a la Anders) is denied, and a new briefing schedule is set.

2020-09-04 21:02:32.805468+00

https://www.courts.ca.gov/opinions/nonpub/C090433.PDF

Filed 9/4/20 P. v. Newby CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE, C090433 Plaintiff and Respondent, (Super. Ct. No. CRPR19-44) v. JERAMIE ALLEN NEWBY, Defendant and Appellant. Appointed counsel for defendant Jeramie Allen Newby has filed an opening brief asking this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 for arguable issues in defendant’s appeal from an order revoking his parole. We find defendant is not entitled to Wende review, and will dismiss the appeal as abandoned. In May 2015, defendant was convicted of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a)(1).) After serving two years in state prison, defendant was released on parole in May 2018. 1  In August 2019, the Department of Corrections and Rehabilitation’s Division of Adult Parole Operations filed a petition to revoke defendant’s parole. The trial court subsequently found defendant did, in fact, violate his parole and ordered defendant to serve 180 days in county jail. Defendant appeals from that order. Review pursuant to Wende or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738 [ 18 L.Ed.2d 493 ], is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551 , 555 [ 95 L.Ed.2d 539 , 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529 , 536-537 (Ben C.); People v. Serrano (2012) 211 Cal.App.4th 496 , 500-501 (Serrano).) And the due process right to Anders/Wende review applies only in appellate proceedings in which a defendant has a previously established constitutional right to counsel. (Serrano, supra, 211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500- 501.) Although a criminal defendant has a right to appointed counsel in an appeal from an order after judgment affecting his or her substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, a defendant is not entitled to Wende review in such an appeal when appointed counsel finds no arguable issues on appeal. (See Serrano, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to Pen. Code, § 1016.5].) The appeal before us, “although originating in a criminal context, is not a first appeal of right from a criminal prosecution, because it is not an appeal from the judgment of conviction.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano here, we conclude that defendant has no right to Wende review of the order revoking defendant’s parole. And because defendant, despite having been advised by counsel of his right to file a supplemental brief within 30 days of the date of filing the opening brief, failed to file any brief, we will dismiss defendant’s appeal as abandoned. (See People v. Cole (2020) 52 Cal.App.5th 1023 , 1039-1040 [because postjudgment order appealed from is 2 presumed to be correct, where defendant does not file a supplemental brief, the Court of Appeal may dismiss the appeal as abandoned].) DISPOSITION The appeal is dismissed. KRAUSE , J. We concur: HOCH , Acting P. J. RENNER , J. 3

2020-01-17 22:01:57.292391+00

Morkis

*1037OPINION. MoRkis : The question to be determined is whether certain income earned by the Stryker Transportation & Contracting Co. during the years in controversy was taxable to the petitioner or to his wife, who is alleged to have owned a one-third interest in the business. The respondent contends that the said Stryker Transportation «⅞ Contracting Co. was a sole proprietorship and that the petitioner was, therefore, taxable as an individual and he states as his reason therefor, that a partnership between husband and wife is invalid under the laws of the State of New Jersey. He’ further contends that, irrespective of the legal disability, the petitioner’s wife owned no interest in that company. The petitioner claims that while under the law of New Jersey a wife might legally enter into a contract of copartnership with her husband, it is only necessary for us to determine whether she had a one-third interest in the Stryker Transportation & Contracting Co.; if so, the income derived from said interest would be income from her separate property and, therefore, taxable to her. We are not called upon by the pleadings, nor do we deem it necessary under the circumstances, to determine whether a copartnership between husband and wife may exist under the laws of the State of New Jersey. If the petitioner’s wife owned a one-third interest in the Stryker Transportation & Contracting Co., entitling her to a like interest in the profits of the business in her own right, she is taxable thereon in her individual capacity. Or, differently stated, if the petitioner owned only a two-thirds interest in said business and was entitled to only two-thirds of the profits therefrom he should not be taxed upon that which he is not legally entitled to. The State of New Jersey has been referred to as among the most liberal of States modifying the rules of common law with respect to the property rights of married people. Aldridge v. Muirhead, 101 U. S. 397. *1038At page 8225, volume 3, Compiled Statutes of New Jersey, the “Act to amend the law relating to the property of married women ” provides: Separate property of married woman: Property acquired during marriage.— That the real and personal property, and the rents, issues, and profits thereof, which any married woman has received or obtained since the fourth day of July, in the year of our Lord one thousand eight hundred and fifty-two, or which she shall hereafter receive or obtain, by purchase, gift, grant, devise, descent, bequest, or in any manner whatever, shall be her sole and separate properly as though she were a single woman. The record shows that the interest which the petitioner’s wife is alleged to have owned during the taxable years in controversy was formerly owned by his mother, who retired from the business and disposed of her interest to him on or about January 1, 1923; that during all of- the years 1916 to 1822 his wife assisted in the clerical work of the business, for which she received no compensation; that she loaned money to the business in 1918 to the extent of about 50 per cent of the petitioner’s interest therein which, in a great measure, was responsible for the rapid expansion of the business. When the petitioner acquired his mother’s interest, mindful as he was. of his wife’s assistance in making the business a success, he informed her that his mother’s interest was being transferred to her in recognition of the services she had performed in the past and, furthermore, because he wanted her to have an interest in the business in her own right. The interest formerly held by the petitioner’s mother was transferred to his wife and a like percentage of the profits of the business was thereafter set aside for her account. She withdrew sums of money which she deposited in her. separate bank account. The statements of assets and liabilities prepared by the company subsequent to January 1, 1923, the date of the mother’s retirement from the business, show the capital accounts of the petitioner and his wife and the amounts set apart to their credit therein. Petitioner’s wife, while not actively engaged in the detail clerical work subsequent to removal of the business to Trenton, was consulted with regard to all important matters pertaining to the business. Finally, the business of the Stryker Transportation & Contracting Co. was divided into two separate companies in the early part of 1926, which were incorporated under the laws of the State of New Jersey, and there were issued to the petitioner’s wife 330 shares in one, and 60 shares in the other, for her interest in the Stryker Transportation & Contracting Co. The certificates, of stock in those corporations were issued in her name and she thereafter received the dividends therefrom. In the liquidation of the Stryker Transportation & Contracting Co. she *1039also received a sum of money from the assets not turned over to the corporations which she deposited in her separate bank account. While there was no formal writing setting forth the transfer of the alleged gift of a one-third interest in the business of the Stryker Transportation & Contracting Co., the circumstances before, during and after the making of the gift convince us that a gift was in fact made and that the petitioner’s wife received a one-third interest in the business in her own right, which became at that time and was thereafter her separate property under the laws of the State of New Jersey. Under the statutes of New Jersey, hereinabove referred to, a married woman is not only entitled to the real and personal property which she may “ receive or obtain, by purchase, gift,” etc., but to the “ rents, issues, and profits thereof.” Therefore, since the petitioner’s wife owmed as her separate property a one-third interest in the Stryker Transportation & Contracting Co., and since there were credited to and set aside for her, during each of the taxable years in controversy, profits of the business accruing to her because of her said interest, she became the owner thereof as they were earned and" credited. The petitioner himself being the owner of only a two-thirds interest in the business and therefore legally entitled to only two-thirds of the profits, is not liable for income tax upon the profits accruing to his wife’s one-third interest. Alfred T. Wagner, 17 B. T. A. 1030; R. E. Wing, 17 B. T. A. 1028. Cf. Ralph L. Hinckley, 6 B. T. A. 312. Judgment will 5e entered under Rule 50.

2020-01-17 22:01:57.356346+00

Green

*1049OPINION. Green : The question presented is whether the collection of the taxes assessed in March, 1925, is barred by the statute of limitations. The petitioner contends that the assessment was not made “ within the statutory period of limitation properly applicable thereto ” as that phrase is used in section 278 (d) of the Revenue Act of 1926 unless it be held that an assessment made within the period as extended by the written consent executed February 18, 1924, brings it within that phrase; and that if the written consent is necessary to validate the assessment, no longer time should be allowed for collection than that specifically provided for in the consent itself, notwithstanding the six-year provision contained in section 278 (d) of the Revenue Acts of 1924 and 1926 enacted by Congress subsequent to the execution of the consent. Section 250 (d) of the Revenue Act of 1918 provided that “ the amount of tax due under any return shall be determined and assessed by the Commissioner within five years after the return was due or was made, and no suit or proceeding for the collection of any tax shall be begun after the expiration of five years after the date when the return was due or was made.” (Italics ours.) The petitioner filed a tentative return for the calendar year 1918 on March 15, 1919, *1050and a completed return therefor on June 16, 1919. In Dallas Brass & Copper Co., 3 B. T. A. 856, we held that a tentative return was not “ the return ” referred to in the statute and that it did not start the running of the statutory period of limitations. Since our decision in that case, the Circuit Court of Appeals for the First Circuit, in White v. Hood Rubber Co., 33 Fed. (2d) 139, has held that the filing of a tentative return on Form 1031-T for the year 1918 was sufficient to start the running of the statutory period of limitation on assessment and collection. This case is now pending before the United States Supreme Court, October term, 1929, as Docket No. 414. But (and this will become apparent later in our opinion) inasmuch as it makes no difference in the instant case which return is held to be the one which starts the statute running, we will, for convenience and without again deciding the question, consider the return filed on June 16, 1919, as being the return referred to in the statute and the one from which the statute began to run. Therefore, at the time the return was filed, the respondent had until June 16,1924, to assess and collect the tax in question. The Revenue Act of 1921 was approved on November 23, 1921. Section 250 (d) of that Act continued the five-year provision for the assessment and collection of 1918 taxes with the additional provision, “ unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax.” On February 18, 1924 (almost four months prior to June 16, 1924) the parties entered into the consent in writing set out in our findings. Under this consent, the determination, assessment and collection of the tax in question was extended to June 16,1925. On June 2, 1924, the Revenue Act of 1924 was approved. Section 277 (a) (2) of that Act again continued the five-year provision .for the assessment and collection of 1918 taxes. Section 278 (c), (cl), and (e) provided as follows: (c) Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon. (d) Where the assessment of the tax is made within the period prescribed in section 277 or in this section, such tax may be collected by distraint or by a proceeding- in court, begun within six years after the assessment of the tax. Nothing in this Act shall be construed as preventing the beginning, without assessment, of a proceeding in court for the collection of the tax at any time before the expiration of the period within which an assessment may' be made. (e) This section shall not (1) authorize the assessment of a tax or the collection thereof by distraint or by a proceeding in court if at the time of the enactment of this Act such assessment, distraint, or proceeding was barred by the period of limitation then in existence, or (2) affect any assessment made, or distraint or proceeding in court begun, before the enactment of this Act. *1051.Sometime between March 1, 1925, and March 5, 1925 (the exact date was not stipulated), the respondent assessed the taxes in question under the authority of section 274 (d) of the Revenue Act of 1924. It is of interest here to note that had the assessment been made prior to June 2, 1924, the six-year provision for collection under section 278 (d), supra, would clearly not have been applicable. See Russell v. United States, 278 U. S. 181. The remaining events of importance may be chronologically summarized as (1) the giving of notice and demand by the collector, (2) the filing of the abatement claim, (3) the passage of the Revenue Act of 1926 on February 26, 1926, (4) the issuance of the deficiency letter on December 23, 1926, and (5) the filing of the petition here. Section 277 (a) (3) of the Revenue Act of 1926 again continued the five-year provision for the assessment and collection of 1918 taxes. Section 278 (c) is the same as section 278 (c) of the Revenue Act of 1924 quoted above. Section 278 (d) of the Revenue Act of 1926 provides as follows: (d) Where the assessment of any income, excess-profits, or war-profits tax imposed by this title or by prior Act of Congress has been made (whether before or after the enactment of this Act) within the statutory period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court (begun before or after the enactment of this Act), but only if begun (1) within six years after the assessment of the tax, or (2) prior to the expiration of any period for collection agreed upon in writing by the Commissioner and the taxpayer. Regarding petitioner’s first contention that the assessment which was made in March, 1925, was not made “ within the statutory period of limitation properly applicable thereto ” as that phrase is used in section 278 (d) of the 1926 Act, supra, we held in Sunshine Cloak & Suit Co., 10 B. T. A. 971, that an assessment made within the period as extended by a consent in writing was a valid assessment. At page 975, we said: In our opinion the expression “ statutory period of Imitation properly applicable thereto ” refers not only to the five year period conta.ned in section 277(a)(8) of the 1926 Act, or section 277(a)(2) of the 1924 Act, but also to the period of extension provided in section 260(d) of the Revenue Act of 1921 and section 278(e) of the 1924 and 1926 Acts. The extension of the period within wh'eh assessment m ght be made by consent in writing is as much a part of the statutory period for assessment as any other period mentioned in the statute. To the same effect see Loewer Realty Co. v. Anderson (C. C. A., 2d Cir.) 81 Fed. (2d) 268, now pending before the United States Supreme Court, October term, 1929, as Docket No. 116. The petitioner’s second contention that no longer time should be allowed for collection than that specifically provided for in the con*1052sent itself has also been adversely decided both by ns and the Federal District and Circuit Courts. See G. L. Ramsey, 11 B. T. A. 345; David Rodefer Oil Co., 11 B. T. A. 782; Stafford Mills, 12 B. T. A. 877; Bank of Commerce v. Rose, 26 Fed. (2d) 365; Florsheim Brothers Dry Goods Co. v. United States, 26 Fed. (2d) 505; aff'd., C. C. A., 5th Cir., 29 Fed. (2d) 895, and now pending before the United States Supreme Court, October term, 1929, as Docket No. 118. See, contra, dissenting opinion in G. L. Ramsey, supra; Hood Rubber Co., v. White, 28 Fed. (2d) 54, aff'd., C. C. A., 1st Cir., on other grounds in White v. Hood Rubber Co., supra. In the case of Banh of Commerce v. Rose, supra, the return for 1918 was filed April 23, 1919; a consent in writing under section 250 (d) of the 1921 Act was executed February 23, 1924, extending the statute one year for the determination, assessment and collection of the tax; the assessment was made April 22, 1925; and the tax was collected on September 16, 1926. In holding that the collection was lawfully made, District Judge Sibley said: * * ⅜ But it is now urged that the written consent executed before the passage of the Revenue Act of 1924 was a sort of contractual limitation affecting both the assessment and collection of the tax and limiting both to one year after April 19, 1924. Such a construction cannot be given to the paper. No authority has been vested by law in the Commissioner or Collector of Internal Revenue to bind the government as to limitations, but only an authority to accept the consent or waiver on the part of the taxpayer respecting the limitations that Congress had fixed. On the expiration of the consent, action of the tax officers, if barred, would be barred by virtue of the law and not by force of the contract of waiver. Notwithstanding the waiver, Congress had full power to modify the limitation laws or to repeal them altogether. The taxpayer has no vested right not to pay his taxes because of limitations. The acts of limitation are of grace only. I see nothing in the waiver agreement to prevent application of the act of 1924. The collection was therefore lawfully made. There is another point that we think should be mentioned, and that is the law applicable to the construction of limitation statutes. A reading of the cases indicates there has been some confusion as to the proper interpretation of such statutes in case of doubt. The court in Loewer Realty Co. v. Anderson, supra, on good authority states the rule to be as follows : Statutes of limitation barring the collection of taxes must receive a strict construction in favor of the government. Limitation will not be presumed in the absence of clear Congressional action. E. I. Dupont de Nemours & Co. v. Davis, 264 U. S. at p. 462; Bowers v. N. Y. & Albany Co., 273 U. S. at p. 349. In accordance with the above decisions, we are of the opinion that the collection of the deficiency here in question is not barred by any statutory period of limitation and that the respondent has six years from the assessment of the tax to collect. Judgment will be entered for the respondent,

2020-01-17 22:01:57.426114+00

Trammell

*1061OPINION. TRAMmell: The Revenue Acts of 1921 and 1924, in section 230, impose a tax at specified rates “ upon the net income of every corporation ” and in section (2) provide that the term “ corporation ” includes “ associations, joint-stock companies, and insurance companies.” Said Acts also provide, in section 219, for an entirely different method of taxing the net income of trusts, the tax in some in*1062stances being payable by the fiduciaries and in others by the beneficiaries upon the amount of the net income distributable to each. The respondent determined that the Hillsboro Court Syndicate was an “association” subject to tax as a corporation. The deficiencies involved were computed accerdingly, and 25 per cent penalties added thereto for failure to file returns. The correctness of the respondent’s computations is not questioned. However, the petitioners assert that the syndicate is not an “ association ” within the meaning of the statutes, but is a trust (of which they were the trustees), and that it is taxable only 8.⅝ such. It is not contended that said syndicate is either a “ joint-stock company ” or an “ insurance company,” and therefore it can be taxed at the rates applicable to corporations only if the facts are such that it must be held, for income-tax purposes, to be an “ association.” If it is not an “ association,” it is not taxable as a corporation. What, then, is an “ association ” within the purview of the statute, and what is a “trust”? What is the material and fundamental distinction between them ? The form of organization involved in this proceeding is what is commonly known as a Massachusetts trust, and it is at once apparent that in many respects it bears a close resemblance to common law trusteeships, and in others, it possesses the attributes of an unincorporated joint-stock association. So-called Massachusetts trusts may be divided into two classes. The first class consists of those where the trustees merely invest and collect dividends or interest or rental (from a single lease) and distribute such income among the shareholders. These are held to be common law trusteeships, as where a trustee under a will collects income and distributes it among the beneficiaries. The second class is composed of business trusts, the trustees of which carry on active business enterprises for profit. These are simply unincorporated joint-stock associations. Cook on Corporations, vol. Ill, 8th ed., 2251, et seq., where it is further stated: Tliese two lines of decisions probably mark tlie true line of distinction. Certainly those who carry on an active business for profit, through others, are principals and not merely beneficiaries, irrespective of how much or how little power of management and control they exercise, actually or by the terms of the original agreement. A silent participant in the profits of a business concern is liable for its debts, even though he take no part in its management. The theory that these trusts should be divided according to whether the shareholders exercise great or little powers of control is only confusing. The trust instrument may be drawn either way. * * * The real test is whether the shareholders or trustees or both combined carry on business; if so, they are a business trust, with liability for debts and taxes. To sustain their contention, the petitioners herein rely upon and cite us to the decision of the Supreme Court of the United States in *1063Crocker v. Malley, 249 U. S. 223. The respondent relies mainly upon the decision of the same court in Hecht v. Malley, 265 U. S. 144. In Crocker v. Malley, supra, taxes were assessed against the plaintiffs as a joint-stock association within the meaning of the Income Tax Act of October 3, 1913, and were levied in respect of dividends received from a corporation that itself was taxable upon its net income. The plaintiffs were trustees of the Wachusett Eealty Trust, which was organized under the following circumstances: A Maine paper-manufacturing corporation, with eight stockholders, had its mills on the Nashua River in Massachusetts, and owned outlying land to protect the river from polution. In 1912 a corporation was formed in Massachusetts. The Maine corporation conveyed to it seven mills and let to it an eighth that was in process of construction, together with the outlying lands and tenaments, on a long lease, receiving the stock of the Massachusetts corporation in return. The Maine corporation then transferred to the plaintiffs as trustees the fee of the property subject to lease, left the Massachusetts stock in their hands, and was dissolved. In brief, the trustees received the property in trust to convert the same into money and distribute the net proceeds to the persons holding the trustees’ receipt certificates. The trust was created because of the determination of the Maine corporation to dissolve without waiting for the final cash sale of its real estate, and was declared to be for the benefit of its eight stockholders. The purpose of the trust was not to engage in a business enterprise for profit, but to convert the property into money and distribute the net proceeds, including current net income, to the beneficiaries. It was on this broad principal that the court held that it was not taxable as an association. In its opinion, the court said: The function of the trustees is not to manage the mills but simply to collect the rents and income of such property as may be in their hands, with a large discret.on in the application of it, but with a recognition that the receipt holders are entitled to it subject to the exercise of the powers confided to the trustees. In fact, the whole income, less taxes and similar expenses, has been paid oyer in due proportion to the holders of the receipts. In the later case of Hecht v. Malley, supra, which arose under the Revenue Acts of 1916 and 1918, the court referred to its opinion in Crocker v. Malley, and said: This opinion * * * is to be read in the light of the trust agreement there involved, under which the trustees were, in substance, merely holding property for the collection of the income and its distribution among the beneficiaries, and were not engaged, either by themselves or in connection with the beneficiaries, in the carrying on of any business. It is significant to note that the Wachusett Realty Trust, which the court in Crocker v. Malley held was not taxable as an association, was *1064again before the court in Hecht v. Malley under the name of The Crocker, Burbank & Company Association, and it appearing that the original trust agreement had been modified, with the assent of the certificate holders, so that the trustees were authorized to acquire the entire property of the corporation and to carry on the business theretofore conducted by it, the court held it was no longer a nontaxable trust, but was taxable as an association. Owning and renting an office building constitutes the carrying on of a business for profit. Flint v. Stone Tracy Co., 220 U. S. 107, 171; Zonne v. Minneapolis Syndicate, 220 U. S. 187, 190. The Hillsboro Court Syndicate, through the petitioners as trustees, was engaged in the business of owning and operating an apartment house for profit. Certainly the functions of the trustees far exceeded the mere collection of the income from property in their hands and its distribution among the beneficiaries. They were, we think, actively engaged in carrying on a business venture for profit through the instrumentality of an organization of quasi-corporate form. Except only in the lack of control of the trustees by the certificate holders, the functions of the trustees were not, in any material respect, vastly different from those usually exercised by the directors of a corporation. While the matter of control or lack of control may be an element which should be taken into consideration (Extension Oil Co., 16 B. T. A. 1028-1034), we have held that the absence of control of the trustees by the shareholders would not convert into a trust what would otherwise be an association. E. A. Landreth Co., 11 B. T. A. 1. In our opinion, the agreement set out in our findings of fact created an “ association ” within the meaning of the Revenue Acts of 1921 and 1924, which is taxable as a corporation. Little Four Oil & Gas Co. v. Lewellyn, 29 Fed. (2d) 137; 35 Fed. (2d) 149; Anderson Steam Vulcanizer Co., 6 B. T. A. 737; Durfee Mineral Co., 7 B. T. A. 231; E. A. Landreth Co., supra; Alexander Trust Property, 12 B. T. A. 1226. The determination of the respondent is approved. Judgment will be entered for the respondent.

2020-12-02 21:14:00.310877+00

http://www.tsc.state.tn.us/sites/default/files/kevin_e_evans_et_al_v._ricki_k._croxdale_et_al..pdf

12/02/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 19, 2020 Session KEVIN E. EVANS, ET AL. V. RICKI K. CROXDALE, ET AL. Appeal from the Circuit Court for Sevier County No. 17-CV-258-IV O. Duane Slone, Judge ___________________________________ No. E2019-01880-COA-R3-CV ___________________________________ This appeal concerns the trial court’s summary judgment dismissal of the plaintiff’s uninsured motorist insurance claim filed against his employer following a car accident. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J. and KRISTI M. DAVIS, J., joined. Andrew R. Tillman, Knoxville, Tennessee, for the appellants, Kevin E. Evans and Angela M. Evans.1 Robert G. Norred, Jr., Cleveland, Tennessee, and Jason P. Steed, Dallas, Texas, for the appellee, AT&T Corp. 1 During the pendency of this appeal, this court received a suggestion of death regarding Mr. Evans. This action shall proceed in his stead with Mrs. Evans as the surviving plaintiff. See Tenn. R. Civ. P. 25.01 (“In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.”).  OPINION I. BACKGROUND This action arose from a car accident between Kevin Evans (“Plaintiff”), Ricki Croxdale, and Robert England. Mr. Croxdale was driving under the influence when he swerved into Mr. England’s vehicle, causing him to strike Plaintiff’s vehicle. Plaintiff, who was extracted from his vehicle, was taken to the hospital via ambulance. He spent several months in recovery, first in the hospital and then in a nursing facility. His injuries were extensive and resulted in a significant amount of medical bills. The accident occurred while Plaintiff was driving a van leased and insured by his employer, AT&T Services, Inc., a wholly owned subsidiary of AT&T Corp. (collectively AT&T). Plaintiff and his wife, Angela M. Evans (collectively “Plaintiffs”), filed suit against Mr. Croxdale, who was uninsured, and Mr. England. Plaintiff also provided notice of the suit to AT&T’s insurance company, Old Republic Insurance Company (“Old Republic”), as notice of intent to rely upon any uninsured motorist coverage in its policy with AT&T.2 Old Republic denied liability, claiming that AT&T rejected uninsured motorist coverage.3 The policy at issue provided liability insurance for AT&T and its employees, with a deductible of $25 million and a corresponding maximum coverage amount of $25 million. Plaintiffs then amended their complaint to add AT&T as a self-insured entity, claiming that the policy with Old Republic was a dummy policy that made AT&T self- insured for $25 million.4 AT&T denied any liability pursuant to its policy with Old Republic and moved for summary judgment. AT&T argued that it was insured under a high-deductible policy that did not include uninsured motorist coverage and alternatively claimed that a self-insured entity is not required to furnish uninsured motorist coverage. Plaintiffs argued that AT&T’s obligation to pay the first $25 million in liability amounted to self-insurance and that the waiver of coverage in the Old Republic policy was not effective to waive uninsured motorist coverage in the retained liability of $25 million. Plaintiffs further claimed that a self-insured entity is obligated to provide uninsured/underinsured coverage. 2 State Farm Insurance Company (“State Farm”) was also provided with notice as Plaintiffs’ insurance provider. State Farm paid Plaintiffs pursuant to the terms of the policy. 3 Old Republic was dismissed at the summary judgment stage and is not a party to this appeal. 4 State Farm provided a brief for the trial court in support of this position. -2-  The trial court found in favor of AT&T, holding that the high deductible could not be characterized as self-insurance pursuant to the terms of the insurance contract. The court alternatively ruled that a self-insured entity is not required to provide uninsured motorist coverage pursuant to Tennessee Code Annotated section 56-7-1201(a).5 Plaintiffs moved to certify the judgment as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure,6 to which AT&T argued that the wrong entity had been named in the suit and that the judgment was not final for purposes of appeal because the claim against Mr. England remained pending. Plaintiffs moved to amend to include the additional entity. The court denied the requested amendment, reasoning that any amendment would be futile because summary judgment would also be granted against the new entity based upon the terms of the insurance contract. The court then certified the judgment as final over AT&T’s objection. II. ISSUES A. Whether the trial court erred in finding in favor of AT&T and denying liability pursuant to the terms of the insurance contract. B. Whether the trial court erred in alternatively ruling that a self- insured entity is not required to maintain uninsured motorist coverage. C. Whether the court erred in denying the motion to amend as futile. III. STANDARD OF REVIEW A trial court’s decision of whether to grant or deny a motion for summary judgment is a question of law; thus, our review is de novo with no presumption of correctness afforded to the trial court’s determination. Guseinov v. Synergy Ventures, Inc., 467 S.W.3d 920 , 924 (Tenn. Ct. App. 2014) (citation omitted). Summary judgment is appropriate if no genuine issues of material fact exist, and the movant meets its burden 5 “Every automobile liability insurance policy delivered, issued for delivery or renewed in this state, covering liability arising out of the ownership, maintenance, or use of any motor vehicle designed for use primarily on public roads and registered or principally garaged in this state, shall include uninsured motorist coverage[.]” 6 “When more than one claim for relief is present in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” -3- of proving that it is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.03. The facts that are material to the issue raised in this appeal are not in dispute. Accordingly, we are tasked only with resolving issues of law, specifically, whether AT&T is liable pursuant to the terms of the policy and applicable statutory law. Insurance policies are contracts. Merrimack Mutual Fire Ins. Co., 59 S.W.3d 142 , 147 (Tenn. Ct. App. 2001). Questions relating to the interpretation of written contracts involve legal rather than factual issues. Brandt v. Bib Enters., Ltd., 986 S.W.2d 586 , 592 (Tenn. Ct. App. 1998). “As such, courts interpret insurance policies using the same tenets that guide the construction of any other contract.” Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811 , 814 (Tenn. 2000); Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d 887 , 892 (Tenn. Ct. App. 1995). The terms of an insurance policy “must be interpreted fairly and reasonably, giving the language its usual and ordinary meaning. Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758 , 768 (Tenn. 2006). The primary rule of contract interpretation is to ascertain and give effect to the intent of the parties.” Clark v. Sputniks, 368 S.W.3d 431 , 441 (Tenn. 2012). The policy should be construed “as a whole in a reasonable and logical manner, and the language in dispute should be examined in the context of the entire agreement.” Id. (quotations omitted). To the extent that the issues raised in this appeal require us to interpret and apply statutes, we note that statutory interpretation is a question of law, which we review de novo, affording no presumption of correctness to the conclusions of the trial court. State v. Crank, 468 S.W.3d 15 , 21 (Tenn. 2015); In re Baby, 447 S.W.3d 807 , 817 (Tenn. 2014); Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393 , 399 (Tenn. 2013) (citing Waters v. Farr, 291 S.W.3d 873 , 882 (Tenn. 2009)). The principles of statutory interpretation are well established. When reading “statutory language that is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute’s application.” Eastman Chemical Co. v. Johnson, 151 S.W.3d 503 , 507 (Tenn. 2004). IV. ANALYSIS A. & B. Tennessee requires every automobile liability insurance policy to include uninsured motorist coverage unless specifically rejected by the named insured in writing. Tenn. Code Ann. § 56-7-1201 (a). The parties agree that AT&T rejected uninsured motorist coverage from Old Republic. As previously stated, the policy at issue provided only liability insurance for AT&T and its employees, with a deductible of $25 million and a corresponding maximum coverage amount of $25 million, thereby establishing that the policy itself does not cover the damages at issue. -4-  Plaintiffs suggest that AT&T was self-insured for the first $25 million of the policy that is subject to the deductible of the same amount. Plaintiffs claim that as a self- insured entity, AT&T was required to provide uninsured motorist coverage pursuant to Tennessee Code Annotated section 56-7-1201, which requires every liability insurance policy to include uninsured motorist coverage and does not provide a caveat for self- insurers. AT&T responds that the van was insured through Old Republic and that AT&T, as the named insured, rejected uninsured motorist coverage, thereby establishing that there is no coverage pursuant to the plain terms of the contract. AT&T asserts that the terms of the policy apply no matter the size of the deductible. AT&T further responds that it is not self-insured as a matter of law because it has not obtained a certificate of self-insurance, a necessary requirement to self-insure. See Tenn. Code Ann. § 55-12 - 111(a) (requiring a self-insurer to obtain a certificate of self-insurance). Tennessee Code Annotated section 56-7-1201(a) provides, in pertinent part, as follows: (a) Every automobile liability insurance policy delivered, issued for delivery or renewed in this state, covering liability arising out of the ownership, maintenance, or use of any motor vehicle designed for use primarily on public roads and registered or principally garaged in this state, shall include uninsured motorist coverage, subject to provisions filed with and approved by the commissioner, for the protection of persons insured under the policy who are legally entitled to recover compensatory damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting from injury, sickness or disease. (1) The limits of the uninsured motorist coverage shall be equal to the bodily injury liability limits stated in the policy. (2) However, any named insured may reject in writing the uninsured motorist coverage completely or select lower limits of the coverage but not less than the minimum coverage limits in § 55-12-107. Any document signed by the named insured or legal representative that initially rejects the coverage or selects lower limits shall be binding upon every insured to whom the policy applies, and shall be conclusively presumed to become a part of the policy or contract when issued or delivered, regardless of whether physically attached to the policy or contract. . . . (3) No uninsured or underinsured motorist coverage need be provided in this state by an excess or umbrella policy of insurance. -5- Section 56-7-1201 does not include a provision relevant to self-insureds. Instead, guidance for those who qualify for self-insurance is found in Section 55-12-111, which provides, in pertinent part, as follows: (a) Any person in whose name more than twenty-five (25) vehicles are registered may qualify as a self-insurer by obtaining a certificate of self- insurance from the commissioner as provided in subsection (c). *** (c) The commissioner has the discretion, upon the application of the person or religious sect or division, to issue a certificate of self-insurance when satisfied that the person or religious sect or division is possessed and will continue to be possessed of an ability to pay any judgments that might be rendered against the person or religious sect or division. (d) The commissioner may, at any time after the issuance of a certificate of self-insurance, cancel the certificate by giving thirty (30) days’ written notice of cancellation should there be reason to believe that the person or religious sect or division to whom this certificate was issued is no longer qualified as a self-insurer under this section. (Emphasis added.). A plain reading of Section 55-12-111 provides that a person who qualifies for and obtains self-insurance is insured for his or her own liability through his or her own assets. See generally Martin v. Powers, 505 S.W.3d 512 , 518-19 (Tenn. 2017) (defining a self- insurer as “a person or entity able to cover the risk of a liability through their own assets”). The statute does not require such persons to carry uninsured motorist coverage. Plaintiffs argue that such an interpretation ignores the plain language and intent of the legislature to provide coverage. We disagree. Section 56-7-1201 specifically allows insureds to reject uninsured motorist coverage and comply with state law by securing only liability insurance. A self-insured by definition is likewise insured for his or her own liability by virtue of the fact that such person has the ability to pay judgments rendered against him or her. With the above considerations in mind, we conclude that AT&T has established that it is entitled to judgment as a matter of law because Plaintiffs can prove no set of facts entitling them to relief. -6-  C. Plaintiffs argue that the court erred in denying the requested amendment of the complaint as futile when Rule 15 of the Tennessee Rules of Civil Procedure7 permits parties to freely amend pleadings. Plaintiffs explain that the entity had notice of the potential for liability by virtue of their relationship with AT&T and AT&T’s identification of the correct parties. AT&T responds that the court did not abuse its discretion when amending the complaint to add another AT&T entity that also did not obtain uninsured motorist coverage would be futile. Trial courts have broad authority to decide motions to amend pleadings and will not be reversed absent an abuse of discretion. Hawkins v. Hart, 86 S.W.3d 522 , 532 (Tenn. Ct. App. 2001). Under the abuse of discretion standard, an appellate court cannot substitute its judgment for that of the trial court. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545 , 551 (Tenn. 2006). Numerous factors guide a trial court’s discretionary decision whether to allow a late filed amendment, including undue delay, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, and futility of the amendment. Pratcher v. Methodist Healthcare Memphis Hosp., 407 S.W.3d 727 , 741 (Tenn. 2013) (citing Merriman v. Smith, 599 S.W.2d 548 , 559 (Tenn. Ct. App. 1979)). We uphold the court’s discretionary decision on this issue. V. CONCLUSION We affirm the judgment of the trial court. The case is remanded for such further proceedings as may be necessary. Costs of the appeal are taxed to the surviving appellant, Angela M. Evans. _________________________________ JOHN W. MCCLARTY, JUDGE 7 “[A] party may amend the party’s pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires.” -7-

2020-11-20 19:32:13.721091+00

KENNETH EDWARD CLARK, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Clark v. Commissioner Docket No. 9337-83. United States Tax Court T.C. Memo 1984-326; 1984 Tax Ct. Memo LEXIS 347; 48 T.C.M. (CCH) 371; T.C.M. (RIA) 84326; June 26, 1984. David Hofer, for the petitioner. James Gehres, for the respondent. SWIFT MEMORANDUM FINDINGS OF FACT AND OPINION SWIFT, Judge: By statutory notice of deficiency dated January 25, 1983, respondent*348 determined a deficiency of $2,860.97 in petitioner's Federal income tax liability for 1979 and an addition to tax of $231.92 under section 6651(1). 1 This determination was based on matters now settled and on the disallowance of a purported $9,700 charitable contribution to the Universal Life Church (Hcurch). The issues for decision are whether petitioner actually made the alleged contribution; if so, whether the contribution was made to an entity that is organized for an exclusively religious or charitable purpose and was not used primarily to benefit petitioner; and whether petitioner is liable for damages pursuant to section 6673. Petitioner Kenneth Edward Clark resided in Aurora, Colorado, at the time he filed his petition herein. On his tax return, which was filed late on June 20, 1980, petitioner listed his occupations as a letter-carrier and a minister and reported $19,275 in income from wages and salary and $124 from an income tax refund. Among the deductions claimed on the return was one in the amount of $9,700 (exactly*349 50 percent of his adjusted gross income) for a charitable contribution to the Universal Life Church. Petitioner testified that he was an ordained minister of the Church and that he conducted his Church at his personal residence. He alleges that the Church paid his rent, utilities, and other personal expenses as compensation for services he rendered to the Church. The evidence, however, is clear that petitioner himself paid his rent, utilities, and personal expenses, and there is no evidence that petitioner ever contributed any funds to the Church. Respondent offered evidence that petitioner had instituted an action in this Court with respect to his Federal tax liability for 1980, which raised the same issue concerning alleged contributions to the Church. Upon motion by respondent, that action was dismissed by order of this Court on December 5, 1983. 2 Petitioner has no right to deductions from income unless the specific statutory requirements that allow those deductions are fully satisfied. Deputy v. du ;*350 . To support claimed claimed charitable deductions, the provisions of section 170, 3 other things, require a showing that payments were made and that the recipient organization qualifies under section 170(c). To qualify, the entity must be organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes. Additionally, the net earnings may not inure to the private benefit of any individual. Section 170(c)(2)(B) and (C). *351 Petitioner argues, notwithstanding his failure to show that he made contributions to the Church, that as an ordained minister of the Church he is entitled to deduct 50 percent of his adjusted gross income as a charitable contribution. The Court finds absolutely no merit in petitioner's claim. We have heard many cases in recent years contesting the disallowance of purported charitable contributions to family churches that purport to be affiliated with the Universal Life Church. 4 We have consistently held against taxpayers in those cases finding that the donations made, if any, did not meet the definition of a section 170(c) charitable contribution. There is no statutory or regulatory provision of the Internal Revenue Code that allows petitioner to deduct one-half of his income from non-church related sources just because he has some type of affiliation with the Church. Petitioner contended at trial that section 107*352 5 provided him a deduction for a minister's parsonage. Section 107, however, allows "minister[s] of the gospel" to exclude from gross income the rental value of a home or the rental allowance paid to them by a church. Petitioner herein never included any income with respect thereto in his Federal income tax return sohe has no grounds for claiming an exclusion. The wages he earned and reported on his tax return were attributable to his services as a letter carrier and had nothing to do with his services as a minister. Additionally, petitioner has failed to demonstrate that he made any payment to the Church during 1979. For a payment to qualify as a charitable contribution, the taxpayer must establish that he relinquished dominion and control over the property which was allegedly contributed. , affd. without published*353 opinion, . By his own testimony, petitioner merely paid directly the obligations due his personal creditors. The church did not control or at any time possess any of the funds. Even assuming that petitioner did make a contribution to the Church, and assuming that the Church was organized exclusively for religious purposes, petitioner testified that the entire amount of the contribution was used to pay his rent and personal expenses. This alone is fatal to petitioner's claim because any contribution made completely inured to his personal benefit. 6 We must, therefore, deny petitioner's claimed deduction and hold for respondent. Turning to respondent's motion for damages under section 6673 7, we find that petitioner's action herein was instituted and maintained primarily for delay and is frivolous and groundless. Petitioner has been on notice since March of 1982 that respondent disallowed a similar deduction*354 for his purported contribution to the Church with respect to 1980, and has been on notice since December of 1983, that this Court dismissed his petition with respect to that year.Even if a taxpayer unknowingly institutes a groundless lawsuit out of ignorance, he will be subject to the imposition of damages under section 6673, if it is shown that he thereafter becomes aware that his position is frivolous and yet continues to pursue his lawsuit. . Petitioner herein abused the process of this Court and wasted its resources. Accordingly, pursuant to section 6673, we hereby award the United States damages of $750. *355 Decision will be entered for the respondent. Footnotes

2020-09-04 21:02:35.482449+00

https://www.courts.ca.gov/opinions/nonpub/E071836.PDF

Filed 9/4/20 Marriage of Kester CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO In re the Marriage of ANGELA and WADE KESTER. ANGELA KESTER, E071836 Respondent, (Super.Ct.No. FAMVS1702403) v. OPINION WADE KESTER, Appellant. APPEAL from the Superior Court of San Bernardino County. Guy A. Bovee, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Bowler & Bowler and Sean M. Bowler for Appellant. Law Offices of Valerie Ross and Valerie Ross for Respondent. Appellant Wade Kester (Husband) appeals from the request for order (RFO) filed by respondent Angela Kester (Wife) granting temporary child and spousal support to Wife in their dissolution proceedings. The trial court determined that it was in their child’s best interest to deviate upward from the guideline child support computed 1 pursuant to Family Code section 4055.1 The trial court, referencing section 4056, determined that child and spousal support should be more than the guideline relying on Husband’s sporadic withdrawals of principal from a T. Rowe Price investment account (TR Account) which was gifted to him by his late father and was his separate property. In this appeal, Husband claims (1) the trial court abused its discretion by granting child support in excess of the guideline support relying upon section 4056; and (2) the trial court erred by awarding spousal support relying on section 4056, which only applies to child support. FACTUAL AND PROCEDURAL HISTORY A. FIRST REQUEST FOR ORDER Wife and Husband were married on December 26, 2013. They had one child, A.K., born on June 7, 2014. On August 4, 2017, Wife filed for a dissolution of their marriage. Husband and Wife were still living together in the family home. On November 17, 2017, Wife filed her first request for order to determine child and spousal support, child custody and visitation and attorney fees. There were no current orders in place. Husband and Wife lived in the family home that she estimated was valued at $400,000 and Husband owned other property estimated to be worth $200,000. There was no mortgage on the family home. Husband’s income greatly exceeded Wife’s income. She earned approximately $3,500 each month and she 1 All further statutory references are to the Family Code unless otherwise indicated. 2 estimated Husband earned $7,000. Wife paid approximately $758 each month for childcare. Husband filed a response to the original request for order. He contended that child support should be an order of guideline child support after Wife moved out of their residence and the timeshare percentage was known. He objected to any payment of spousal support or attorney fees. Husband provided an income and expense declaration. He listed his income as approximately $5,000 each month. He had two other children for which he paid $955 each month. His monthly expenses were $3,821. Husband declared that since he and Wife were still living together, it was difficult to determine what Wife’s expenses would be once she moved out. A hearing was conducted on January 25, 2018, on the first request for order. Wife’s counsel argued that Husband was not honest about his income. He was being paid $1,025 a month in rental income and the mortgage on the rental property was only $595. Further, he did not disclose that he had received an inheritance from his father. Part of that inheritance was the TR Account from which he withdrew $22,500 in December 2017. The trial court noted that the investment accounts had not been disclosed in the income and expense declaration filed by Husband. Husband responded he listed it in his assets, which totaled $1,145,000. All of the investment accounts were separate property inherited by Husband from his father. An interim order was entered ordering that Husband pay $928 each month in child support, which was the guideline $549 per month plus $379 for a share of childcare 3 expenses. The trial court reserved jurisdiction on spousal support and timeshare percentage. Husband was ordered to pay $3,000 of Wife’s attorney fees based on evidence that he had other income sources to pay the fees. More information on those accounts was requested in order for the trial court to determine if additional attorney fees should be paid by Husband. B. REQUEST FOR ORDER On September 19, 2018, Wife filed the RFO at issue here. She sought an order from the trial court modifying child support and visitation, spousal support, attorney fees, property control, visitation and appraisal of the family home and other property. A.K. spent the majority of her time in the care of Wife. Husband visited her on the weekends. Wife sought to change the amount of child support based on her and A.K. moving out of the family home at the end of June. Wife had rented an apartment with a monthly rent of $1,400, while Husband remained in the home “mortgage free.” (All caps. omitted.) Wife requested $7,500 in attorney fees pursuant to Family Code sections 270, 271 and 2030. Wife provided an income and expense declaration. She again estimated Husband’s income to be $7,000 each month from salary, rental income and investment income. Wife’s monthly salary the prior month had been $4,675 but her average monthly salary was $3,706. Her expenses were $5,303 each month. She provided her paystubs. 4  C. RESPONSIVE DECLARATION TO RFO On October 22, 2018, Husband filed a responsive declaration to the RFO (Response). Husband objected to the change in child support, the request for spousal support, the amount of visitation and the request to pay attorney fees. Husband wanted to maintain the current visitation. Husband wanted no change to the child support amount. No spousal support was warranted because their incomes were similar with the inclusion of child support payments. Husband agreed to an appraisal of the family home. Husband objected to the amount he should pay for attorney’s fees. Husband paid Wife $10,000 to help her move out of the family home. Husband filed an income and expense declaration. He worked maintenance/custodial for the Fontana School District. He was paid $4,119.42 each month. He had a second job, which paid him $518. He received rental property income in the amount of $675, which only covered the expenses of the rental. He estimated he had $1,000,000 in real and personal property. He estimated his expenses each month to be $4,030. He had paid $12,000 in attorney’s fees to his own attorney. He did not provide the details of the TR Account. Husband’s counsel also filed an argument of counsel regarding child support and hardship deduction. Husband argued that there was no change in circumstances since the prior interim order that warranted a change to the guideline child support. Wife having to pay rent did not change the calculation of child support. Husband sought a hardship deduction for having to support his other two children. 5  D. HEARING The hearing on the RFO was conducted on October 23 and November 7, 2018. At the first hearing, Wife’s counsel raised the issue that Husband had the TR Account valued at $275,000. Wife’s counsel estimated that at a four percent interest rate it would yield a rate of return of $11,000 a year which was $916 a month. At the next hearing, Wife’s counsel argued that Husband should be imputed income for living mortgage-free in the family home. She estimated the rent amount on the home would be $1,400. Moreover, Wife’s counsel contended that section 4058, which defined income to be considered for child support, was expansive and allowed for many things to be considered as income, including benefits through financial investments. Wife’s counsel had subpoenaed the TR Account records and he had withdrawn $98,000 in 2016; $30,000 in 2017; and $30,000 so far in 2018. The account when given to Husband was valued at $330,000; it was currently valued at $290,000 despite the withdrawals. Wife’s counsel argued that Husband had earned at least $40,000 on the TR Account. Husband’s counsel countered that this was not properly considered income in calculating child support. Wife’s counsel also argued that Wife owed $4,387 in attorney fees and that she was unable to pay the amount. Husband had used his investment accounts to pay his attorney fees. Husband’s counsel responded that without consideration of the TR Account, their incomes were similar. Husband maintained that the Xspouse properly calculated child and spousal support. At the conclusion of the hearing, the trial court ordered that the two properties, 6 including the family home, be appraised. The remaining issues were taken under submission. The trial court filed a ruling on submitted matter on November 7, 2018. It considered the RFO, Response, the child support and hardship deduction argument made by Husband’s counsel, TR Account statements provided by Wife,2 portions of Husband’s 2016 tax return, and the Xspouse calculations. The trial court also considered the current income and expense declarations filed by both parties. The trial court first noted that the guideline child support calculation was $684 plus $379 for childcare expenses for a total of $1,063. Temporary guideline spousal support would be zero. However, the trial court found that Wife had rebutted the presumptively correct calculations justifying a deviation from the guideline calculations pursuant to section 4056. The trial court first stated that Wife requested the court consider the fair market value of the family home based on Husband living rent- and mortgage-free in the residence in determining his income for child and spousal support. Wife had used the fair market value based on her rent which was $1,400 per month. The trial court noted that there would be an appraisal of the family home and found that such rental amount was speculative and that it would wait for the appraisal. 2 Wife augmented the appellate record with the TR Account documents. Those records confirm that the balance of the account in September 2018 was $290,746.43. In 2015 the TR Account was valued at $325,908.48. Husband had another account that was valued in 2018 at approximately $50,000. 7  The trial court then considered the TR Account. Husband received the fund in 2015 and made periodic withdrawals. He withdrew $98,000 in 2016; $30,000 in 2017; and $30,482 through September 2018. The average monthly withdrawal for 2018 was $3,426. The trial court stated, “The Court believes that while this appears to be a distribution of principal from that account to [Husband], there was no indication that these amounts were used by [Husband] for anything other than living expenses. Accordingly, the Court will consider this amount in deviating from the guideline amount of support.” It found it was in the best interest of A.K. to share in these financial resources available to Husband. It stated, “[Wife] has successfully rebutted that presumptively correct calculation, justifying a deviation from the guideline calculations for child and spousal support, pursuant to Family Code [section] 4056.” The modified child support to be paid by Husband would be $1,157 plus the $379 for childcare for a total of $1,536 each month effective October 1, 2018. The trial court modified the temporary spousal support from zero to $795 each month effective October 1, 2018, based on all the previously referenced factors. The trial court in addressing attorney fees noted that the TR Account was valued at $273,469.66 as of September 2018. The trial court awarded Wife an additional $3,000 to pay for her attorney fees. The court’s “ruling on submitted matter” (all caps. omitted) was filed on January 25, 2019. 8  DISCUSSION A. ORDER ON CHILD SUPPORT Husband contends the trial court could not consider the sporadic withdrawals of principal from the TR Account as income in determining the appropriate amount of child support because it was not listed as income under section 4058. He also appears to contend that the case did not meet the exception of section 4056 and 4057. “ ‘California has a strong public policy in favor of adequate child support.’ ” (In re Marriage of Sorge (2012) 202 Cal.App.4th 626 , 640 (Sorge).) “A child support order is reviewed for an abuse of discretion.” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747 , 753.) In reviewing child support orders, the appellate court must determine “ ’whether the court’s factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion’ [Citation.] We do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order.’ ” (Id, at p. 753.) We apply “the independent standard of review” to decide whether “the trial court followed established legal principles and correctly interpreted the child support statute. (In re Marriage of Alter (2009) 171 Cal.App.4th 718 , 731; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269 , 282-283, superseded by statute on other grounds as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025 , 1049.) Courts are required to calculate child support under statutory guidelines. (§§ 4052-4055.) Section 4052 provides “The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in 9 this article.” “ ‘The guideline amount of child support, which is calculated by applying a mathematical formula to the parents’ incomes, is presumptively correct.’ ” (Sorge, supra, 202 Cal.App.4th at p. 641.) Section 4053, subdivision (a), provides that in implementing the statewide uniform guideline, “A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.” Subdivision (d) provides, “Each parent should pay for the support of the children according to the parent’s ability.” Subdivision (e) provides “The guideline seeks to place the interests of children as the state’s top priority.” Section 4058 provides the guidelines for establishing the income of each parent. Subdivision (a) of section 4058 provides, “The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: [¶] (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article.” “A deviation from the guideline amount may be appropriate where ‘[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case.’ ” (Sorge, supra, 202 Cal.App.4th at p. 641.) Section 4056 provides in pertinent part that “(a) To comply with federal law, the court shall state, in writing or on the record, the following information whenever the court is ordering an amount for 10 support that differs from the statewide uniform guideline formula amount under this article: [¶] (1) The amount of support that would have been ordered under the guideline formula; [¶] (2) The reasons the amount of support ordered differs from the guideline formula amount; [¶] (3) The reasons the amount of support ordered is consistent with the best interests of the children.” Here, the trial court first determined the guideline amount of child support using the Xspouse calculation and neither party has claimed it was incorrect. Based on the guideline, the amount of child support that would need to be paid by Husband was $684 plus the child care expenses of $379 for a total of $1,063. The family court then explained why it exceeded the guideline referring to the factors in section 4056. It determined that it was in the best interests of A.K. to share in the financial resources of Husband. Husband appears to contend that this determination improperly considered the TR Account principal withdrawals as income. Husband relies on In re Marriage of Henry (2005) 126 Cal.App.4th 111 . In that case, the family court considered the equity in the wife’s house as part of her income within the meaning of section 4058. (Henry, at pp. 116-117.) The appellate court noted that despite “income” being “broadly defined” it was not “limitless.” (Id. at pp. 118-119.) It concluded, “Section 4058’s ‘but is not limited to’ language does not reach so far as to include the increase in equity of a parent’s residence, forcing the parent to sell or refinance the home in order to make court-ordered support payments.” (Id. at p. 119.) Husband contends that his child and spousal support obligations were based on the trial court considering withdrawals from the TR Account 11 as income and such determination will force him to keep withdrawing from the account giving him an artificially high support order. However, in this case, the family court did not include the TR Account withdrawals as income pursuant to section 4058. Rather, it followed the guidelines for child support and then determined that the TR Account was a special circumstance which warranted deviating from the guideline child support. We need not determine whether the TR Account was properly considered income as the trial court did not conclude this was income in calculating child support. Rather, its order implicitly concluded that application of the guideline support would be unjust or inappropriate within the meaning of section 4057 and the existence of the TR Account constituted a special circumstance which allowed for upward deviation of child support. Section 4057, subdivision (a) provides “The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered.” Section 4057, subdivision (b) provides “The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056.” The only applicable subdivision here would be (b)(5) of section 4057, which provides, “Application of the formula would be unjust or inappropriate due to special circumstances in the particular 12 case. These special circumstances include, but are not limited to, the following[.]” (Italics added.) None of the circumstances listed in section 4057, subdivision (b)(5)(A)- (D), are applicable here, but these include, children with special needs, if the child has two parents, or if there is equal time-sharing but one parent had more or less income to use for housing. (§ 4057, subdivision (b)(5)(A)-(D).) In County of Kern v. Castle (1999) 75 Cal.App.4th 1442 (Castle), the husband inherited his mother’s $1 million estate, which included a $240,000 lump sum. His child support obligation was $361 each month, which was based on the incomes of him and his wife. Husband was able to pay off most of his debt with the $240,000. He was able to live rent free and received rental income from properties he inherited. (Id. at pp. 1444- 1446.) The family court concluded that the inheritance was not income and should be excluded from the guideline calculation of child support. (Id. at pp. 1447-1448.) The appellate court first noted that pursuant to section 4058, cash or property obtained through an inheritance is not specifically covered by section 4058 as income. (Castle, supra, 75 Cal.App.4th at p. 1449.) The court concluded that the trial court had the discretion not to consider the inheritance as income because it was not listed as a source of income in section 4058 and that such gifts are properly not considered income. (Id. at pp. 1451, 1453.) The appellate court then addressed the wife’s contention that the trial court violated public policy by failing to take into account the father’s inheritance in awarding child support because pursuant to section 4053, the child was to share in the lifestyle of both parents. (Castle, supra, 75 Cal.App.4th at p. 1454.) The appellate court agreed that 13 it was in the “best interests” of the child to share in the substantial assets husband received. The matter was remanded for the trial court to determine whether the inheritance should be considered in the child support obligation in order to assure the best interests of the child were served. (Id. at pp. 1457-1458.) Here, the trial court rejected Wife’s argument that Husband living rent-free justified a change from the guideline support amount and that he should be imputed with $1,400 a month in income. The trial court then considered Husband’s investment income. It set forth the value of the TR Account and the amount of withdrawals from principal that Husband had made from 2016 through September 2018. The trial court concluded that despite the sporadic withdrawal of these amounts, the evidence supported that Husband used the money for living expenses. The trial court concluded that it would consider the withdrawals in deviating from the guideline support amount. It reasoned, “The Court finds that it is in the best interest of the child[] to use the amount referenced in paragraph 2 above to deviate from the guideline formula because these distributions have established an availability of financial resources to [Husband], such that it would be important for the child to be able to share in the availability of such resources in each party’s household.” The trial court correctly followed the directives of section 4056. It listed the guideline child support, it stated the basis for deviating from the guideline support and that it was in the child’s best interest to deviate from the support. The trial court properly determined that it would be unjust or inappropriate to allow Husband to benefit from the investment income but not share that income with A.K. 14  Husband insists that the unjust or inappropriate application exception of section 4057, subdivision (b)(5), does not apply because (1) it does not fit under the special circumstances listed under subdivision (b)(5)(A)-(D); and (2) it is not the type of “extraordinary” or “unusual” circumstances that the Legislature intended. Section 4057, subdivision (b)(5)(A)-(D), provides that the exceptions are not limited to those listed. The trial court, within its discretion, could conclude that the amount of principal Husband was taking out of the TR Account each year was an “unusual” or “extraordinary” event that required a deviation upward from the guideline child support. We cannot conclude the trial court abused its discretion in reaching such conclusion. The trial court properly awarded child support to Wife in the amount of $1,536 each month. B. SPOUSAL SUPPORT ORDER Husband further contends the trial court improperly considered section 4056 in awarding spousal support above the guideline support amount. Wife contends the trial court did not rely on section 4056 in deviating from the guideline support amount. In deciding on temporary spousal support, which the trial court calculated after determining the proper child support, it only stated, “Considering all of the above- referenced factors, the Court orders the current temporary spousal support order modified,” and increased it from zero to $795 each month. The trial court earlier stated, “The Court finds that [Wife] has successfully rebutted that presumptively correct calculation, justifying a deviation from the guideline calculations for child and spousal 15 support, pursuant to Family Code § 4056, as follows[:]” The trial court then awarded child support, spousal support, and attorney’s fees. “ ‘Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations.’ ” (In re Marriage of Murray (2002) 101 Cal.App.4th 581 , 594.) A temporary spousal support is subject to review for abuse of discretion. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330 , 337.) The trial court may adopt the guideline spousal support but is not bound by the statutory or locally adopted support guidelines. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317 , 1327 [“The court is not restricted by any set of statutory guidelines in fixing a temporary spousal support amount”]; accord, In re Marriage of Ciprari (2019) 32 Cal.App.5th 83 , 103-104.) “[I]n exercising its broad discretion, the court may properly consider the ‘big picture’ concerning the parties assets and income available for support in light of the marriage standard of living. [Citation.] . . . ‘Ability to pay encompasses far more than the income of the spouse from whom temporary support is sought; investments and other assets may be used for . . . temporary spousal support.’ ” (Wittgrove, at p. 1327.) Here, the trial court set the temporary spousal support in an amount higher than the guideline support referencing the factors it considered in deviating upward for child support. While the trial court cited to section 4056, which is applicable to child support only, it did not abuse its discretion by awarding temporary spousal support based on the money Husband received from the TR Account. The court’s reference to section 4056 16 does not require reversal of the temporary spousal support order because the trial court had vast discretion to consider the TR Account in awarding spousal support. The trial court did not abuse its discretion in awarding spousal support. DISPOSITION The order awarding temporary child and spousal support is affirmed. Wife is awarded her costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER J. We concur: RAMIREZ P. J. McKINSTER J. 17

2020-09-04 21:02:35.938967+00

https://www.courts.ca.gov/opinions/nonpub/F080910.PDF

Filed 9/4/20 In re Kash P. CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT In re KASH P. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES F080910 AGNECY, (Super. Ct. Nos. 18JP-00103-A, Plaintiff and Respondent, 18JP-00103-B) v. OPINION ZAVIER P., Defendant and Appellant. THE COURT* APPEAL from an order of the Superior Court of Merced County. Donald J. Proietti, Judge. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. James N. Fincher, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Plaintiff and Respondent. -ooOoo- * Before Detjen, Acting P.J., Meehan, J. and DeSantos, J.  Zavier P. (father) appeals from an order terminating his parental rights under Welfare and Institutions Code section 366.261 to his sons, Kash P. and Zavier P., Jr., now 10 and 9 years of age, respectively. He sought writ review of the juvenile court’s order setting the section 366.26 hearing (Cal. Rules of Court, rules 8.450‒8.452), claiming trial counsel was ineffective. We denied his writ petition.2 On appeal, father contends the Merced County Human Services Agency (the agency) failed to comply with the juvenile court’s visitation order thereby preventing him from establishing the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) and violating his right to due process. The exception requires a parent to establish that he maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.) Respondent contends father forfeited any claim of error by failing to raise it in the juvenile court. We concur and affirm. PROCEDURAL AND FACTUAL SUMMARY In August 2018, the agency assisted in the removal of then eight-year-old Kash, seven-year-old Zavier and their 10-year-old cousin after sheriff’s deputies served a search warrant for a marijuana grow on the property of their mother’s cousin, Alejandro, the 10- year-old’s father. In searching the residence, the deputies found a butane “honey oil” lab, weapons and the three children. Alejandro told the deputies his son was in the house but refused to open the door, forcing the deputies to kick the door in. They also forced their way into the locked master bedroom where they found three assault rifles, a ballistic vest and a loaded shotgun. The children were in another locked bedroom, which they exited 1 Statutory references are to the Welfare and Institutions Code unless otherwise noted. 2 Zavier P. v. Superior Court (Dec. 24, 2019, F080088) [nonpub. opn.]. On our own motion, we take judicial notice of the record on appeal filed in Zavier P., as well as our opinion in that case. (Evid. Code, §§ 452, subd. (d); 459.) 2. and were led outside. The children’s mother, E.G. (mother), arrived shortly after the deputies cleared and searched the residence. She and her sons lived on Alejandro’s two- acre property in a trailer behind his house. The deputies found approximately 20 pounds of processed ready-for-conversion marijuana on the property along with eight pounds of marijuana buds and three outdoor 12-foot marijuana plants. Remnants of a butane honey oil lab, including butane canisters, butane collection vessels, marijuana extraction tubes and other items used for the extraction of honey oil, were found in a hallway bathroom. Eight open butane cans were located throughout the living room, bedroom, kitchen and bathroom, all accessible to the children. According to one of the sergeants, butane is a highly explosive gas and only required a small amount to cause an explosion. He pointed out butane cans that were about 10 feet from an exposed water heater, explaining that an explosion in the home would have been fatal. One of the deputies located children’s bath toys, toothbrushes and other items that led him to believe the children frequented the home. Social workers detected a heavy odor of marijuana in the home and observed marijuana debris strewn throughout. The children were belligerent and refused to be interviewed by the social worker, stating mother instructed them not to talk. Mother denied ever being in the home but admitted knowing about the marijuana grow in the back of the property. She said she did not allow the children to visit their cousin. She only allowed them in the residence on this occasion because she was going to the store. If she had known what was in the home, she would not have allowed them to be there. The cousin, however, said the children visited him often and played video games in his room. Mother later admitted being in the home but said she never saw anything of concern. The agency took the children into protective custody and placed them with a non- relative in Solano County. The agency filed a petition on their behalf, alleging under section 300, subdivision (b)(1) mother willfully or negligently endangered them by 3. allowing them to visit Alejandro’s home and thereby exposed them to weapons, butane cans and a marijuana grow. It further alleged under subdivision (b)(1) father was incarcerated and unavailable to protect them and provide them care or support pursuant to section 300, subdivision (g). He was serving a life sentence for second degree murder. The juvenile court ordered the children detained pursuant to the petition and set a combined hearing on jurisdiction and disposition (combined hearing). The agency recommended the juvenile court remove the children from mother’s custody and provide her reunification services. The agency recommended the court deny father reunification services because of his felony conviction. (§ 361.5, subd. (b)(12).) The juvenile court convened the combined hearing in September 2018. Father appeared in custody and the court appointed an attorney for him. The court continued the hearing to September 26, 2018, to allow additional time for the agency to file its report. Father’s attorney asked that father be returned to the Department of Corrections and appear via court call on September 26. The court approved the request. On September 26, 2018, mother’s attorney requested a contested hearing, which the juvenile court set for October 30. Father was not present but was represented by his attorney who waived his appearance by court call because the matter was not being set for a section 366.26 hearing but rather a contested hearing. Father appeared in custody with his attorney at the combined, contested hearing on October 30, 2018, but did not present any evidence. By that time, mother had relocated to Solano County and the agency recommended the court transfer the case. Mother testified she and Alejandro no longer lived on the property where the weapons and marijuana were found, and she did not live with Alejandro. She explained his property was completely fenced off by a tall wooden fence. To get to his property, she had to enter by a chain-link gate that was locked when he was not home. Her trailer was approximately three car lengths from his house. The children could only go to the house with permission to see their cousin, but they had not gone there since mid-summer 4. because the cousin left. She and Alejandro had a tenant/landlord relationship, so she did not go to his house often. However, he was going through a divorce, so she was helping him clean and checking on him. She was in his house 10 minutes prior to the search to drop the children off. They entered the house from a back door leading to the kitchen and from there walked straight back to the cousin’s bedroom. She did not see anything in the kitchen except some things Alejandro’s wife had packed to take with her. She denied any knowledge of butane canisters, weapons or honey oil equipment and did not have a key to the master bedroom. She claimed the children returned to their trailer to use the bathroom instead of using the one in the house. The juvenile court sustained the section 300, subdivisions (b)(1) and (g) allegations, ordered the children removed from mother’s custody, ordered reunification services for her and denied services to father as recommended by the agency. The court ordered monthly visitation for mother but no visitation for father. The court ordered the case transferred to Solano County but accepted it back after it was determined mother was residing in Merced County. The court set a six-month review for May 28, 2019. In April 2019, the agency filed a modification petition (section 388 petition), asking the juvenile court to suspend mother’s visitation and order her to complete a psychological evaluation because of her increasingly erratic behavior. She took the children from school without authorization and was arrested for kidnapping. The court granted the agency’s petition and appointed mother a guardian ad litem. Mother declined to be transported for the May 28, 2019 hearing, claiming the juvenile court did not have jurisdiction over her. Father’s attorney told the court she spoke to father on May 23, 2019, and he requested telephone contact with the children. He said he had been talking to them on their cell phones. Father’s attorney also asked the court to place the children with their paternal grandmother. The court approved reasonable telephone contact between father and the children as the agency deemed it to 5. be in the children’s best interest. The court set the 12-month review hearing for September 25, 2019. In July 2019, the agency filed a section 388 petition asking the juvenile court to terminate mother’s reunification services based on the opinions of two psychologists that she would not benefit from reunification services. Mother opposed the agency’s petition and requested a contested hearing. In September 2019, the juvenile court granted the agency’s section 388 petition and terminated mother’s reunification services. Neither she nor father personally appeared. The court vacated the review hearing scheduled for September 25 and set a section 366.26 hearing. Only father sought writ relief. The agency recommended the juvenile court find the children were likely to be adopted and terminate parental rights at the section 366.26 hearing. The children were placed with maternal relatives and doing well there. The maternal relatives wanted to adopt the children and were applying for approval. The children said they were happy in their relatives’ home and liked the idea of being adopted. Mother’s visits remained suspended and father had not contacted the social worker to request any kind of contact. The social worker tried to contact father at the prison to get a statement from him but no one answered the phone and there was not an option to leave a voicemail. She sent him a letter requesting a statement for the hearing but did not receive a response prior to submitting the report. The agency was aware, however, that he did not approve of the children being adopted. Father wrote a letter to the social worker on December 26, 2019, stating he last spoke to the children in April 2019. Although he wanted the children placed with his family, he did not object to the current maternal relatives having legal guardianship of the children as long as he could have contact with them. He was going back to court soon to have his sentence mitigated. 6.  Father testified at the section 366.26 hearing on February 18, 2020. He lived with the children until he was incarcerated in 2012. Kash was two years old and Zavier was 18 months old when father was taken into custody. He visited them weekly and talked to them by telephone every day while in jail. He was transferred to High Desert Prison in Susanville and not able to visit them in person but continued to have telephone visits with them. He resumed in-person visitation with the children at Deuel Vocational Institution where the paternal grandmother took them to visit. Father’s last in-person visit with the children was in 2017. He continued to have telephone contact with the children and last spoke to them on Kash’s birthday in April 2019. He had not had any contact with the children, including telephone contact, letters or cards, since they were placed with their maternal relatives. He did not object to their placement; he just wanted to maintain contact with them. If his parental rights were terminated, he was afraid all contact would be severed. Father testified he was originally sentenced to 40 years in prison but his sentence was reduced to 25 years. He hoped it would be reduced to 15 years. He was aware none of his relatives followed through with the application process for placement. Father’s attorney argued the juvenile court should apply the beneficial parent-child relationship exception to adoption because father maintained regular contact with the children prior to their placement with their maternal relatives and it would benefit them to continue their relationship with him. The juvenile court found by clear and convincing evidence the children were likely to be adopted and that father’s contact was inconsistent in that he had not had in- person contact with them since 2017. The court also found that the benefit of maintaining the parent-child relationship did not outweigh the benefit the children would receive from being adopted into a stable home and terminated parental rights. 7.  DISCUSSION I. Legal Principles A. Visitation “Visitation is a critical component, probably the most critical component, of a reunification plan.” (In re Lauren Z. (2008) 158 Cal.App.4th 1102 , 1113–1114.) “Without visitation of some sort, it is virtually impossible for a parent to achieve reunification.” (In re C.C. (2009) 172 Cal.App.4th 1481 , 1491–1492.) “The absence of visitation will not only prejudice a parent’s interests at a section 366.26 hearing but may ‘virtually assure[ ] the erosion (and termination) of any meaningful relationship’ between [parent] and child.” (In re Monica C. (1995) 31 Cal.App.4th 296 , 307.) To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) Visitation requirements exist “[i]n order to maintain ties between the parent … and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent.” (Id., subd. (a).) In the dependency context, visitation is also a critical component in the constitutionality of the procedures used for termination of parental rights. “The Supreme Court has held the statutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. [Citations.] If a parent is denied those safeguards through no fault of [his] own, [his] due process rights are compromised. Meaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated.” (In re Hunter S. (2006) 142 Cal.App.4th 1497 , 1504.) “Once visitation is ordered, the court may delegate responsibility for managing details such as the time, place and manner of visits, none of which affect a parent’s defined right to see his or her child. [Citations.] However, the visitation order must give 8. some indication of how often visitation should occur. [Citations.] A court may not abdicate its discretion to determine whether visitation will occur to a third party.” (In re E.T. (2013) 217 Cal.App.4th 426 , 439.) A visitation order granting a third party complete and total discretion to determine whether visitation occurs at all is improper. (In re Danielle W. (1989) 207 Cal.App.3d 1227 , 1237.) After reunification services are ordered terminated, “the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295 , 309.) By the time a section 366.26 hearing is set, parental unfitness is so well established that there is no longer reason for the juvenile court to believe that a nurturing parent-child relationship exists and the focus shifts to the needs of the child for permanency and stability. (Id. at p. 309.) The court need not consider the possibility of family reunification unless the parent demonstrates changed circumstances sufficient to revive the issue. (Ibid.) The purpose of ongoing visitation pending the section 366.26 hearing is twofold: to protect the parent’s substantive due process rights by holding open an escape mechanism under section 388 to avoid termination of parental rights3 and to establish the beneficial parent-child relationship exception to adoption. If visitation is denied, it is a foregone conclusion the parent will not be able to establish the exception. (In re Hunter S., supra, 142 Cal.App.4th at pp. 1504‒1505.) B. Beneficial Parent-Child Relationship Exception to Adoption “ ‘A section 366.26 hearing … is a hearing specifically designed to select and implement a permanent plan for the child.’ [Citation.] It is designed to protect children’s ‘compelling rights … to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.’ [Citation.] ‘The 3 Section 388 allows interested parties to petition for a hearing to change or set aside a prior court order on the grounds of “change of circumstance or new evidence.” (§ 388, subd. (a)(1).) 9. Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.’ ” (In re Celine R. (2003) 31 Cal.4th 45 , 52‒53.) If the juvenile court determines it is likely the child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B).) “Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.’ ” (In re Breanna S. (2017) 8 Cal.App.5th 636 , 646 (Breanna S.).) Father contends he was prevented from asserting the beneficial parent-child relationship exception, which pertains where the evidence supports “a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] … [¶] … regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “ ‘To trigger the application of the parental relationship exception, the parent must show the parent- child relationship is sufficiently strong that the child would suffer detriment from its termination.’ [Citation.] A beneficial relationship ‘is one that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” ’ ” (In re Marcelo B. (2012) 209 Cal.App.4th 635 , 643.) The nature of the relationship between the parent and child is key in determining the existence of a beneficial parent-child relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some “ ‘emotional bond’ ” with the parent. (In re K.P. (2012) 203 Cal.App.4th 614 , 621.) “To meet the burden of 10. proving the section 366.26, subdivision (c)(1)(B)(i) exception[,] the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W. (2009) 180 Cal.App.4th 1517 , 1527.) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Angel B. (2002) 97 Cal.App.4th 454 , 466.) The juvenile court’s decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) C. Standard of Review When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the beneficial parent-child relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528; Breanna S., supra, 8 Cal.App.5th at p. 647.) “When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion.” (Breanna S., at p. 647; see In re K.P., supra, 203 Cal.App.4th at pp. 621‒622.) D. Forfeiture Issues regarding visitation in dependency proceedings are forfeited on appeal by failure to raise the issue or to object in the juvenile court. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676 , 685‒686.) “The purpose of this rule is to encourage parties 11. to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287 , 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953 , 961‒962.) II. Analysis The only visitation order issued for father during these proceedings was the order issued in May 2019 for reasonable telephone visitation. Father does not argue that the order as written was an unlawful delegation of authority to the agency to determine if visitation would occur. Instead, he contends the agency did not arrange telephone visitation as ordered. The record reflects that after the social worker’s attempts to reach father at the prison were unsuccessful, the social worker wrote him a letter. He did not respond, however, until late December 2019. Although he mentioned in his letter that he had not spoken to his sons since April 2019, he did not raise the issue of the agency’s compliance in executing the visitation order before the juvenile court. Consequently, he forfeited the right to assign error on appeal. Further, even if the doctrine of forfeiture did not apply, we would reject father’s claim the court violated his due process right to assert the beneficial parent-child relationship exception to adoption. As explained above, proof the beneficial parent-child relationship exception exists requires much more than regular visitation and contact. A parent must also prove that he or she occupies a parental role in the life of the child. Here, Kash and Zavier had spent the majority of their lives physically separated from father. They were infants in 2012 when he was arrested and incarcerated. Over the ensuing five years, the most direct contact they had with him were brief visits within the confines of a penal institution. Their subsequent contact with him until April 2019 was primarily by telephone. By the hearing in February 2020, they had had no contact with him for nearly a year. With so little contact for that length of time, there is simply no way father could develop or maintain a parental role in the lives of his children no matter how loving the relationship. 12. Consequently, father fails to show the juvenile court was compelled to find the beneficial parent-child relationship existed between him and the children as a matter of law. Further, even assuming there was sufficient detriment to trigger the exception, the benefit of adoption outweighed the benefit of maintaining the parent-child relationship. The children were well cared for and loved in a stable environment and they were in favor of being adopted by their caregivers. Our conclusion father failed to establish the beneficial parent-child relationship exception disposes of his claim the agency violated his due process right by not complying with the visitation order. In order to establish a due process violation, father would have to show the agency’s noncompliance was error beyond a reasonable doubt. (In re Dolly D. (1995) 41 Cal.App.4th 440 , 446.) Since the exception to adoption was never available to him, father’s prejudice claim must also fail. DISPOSITION The order is affirmed. 13.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20‐1200 E.F.L., Petitioner‐Appellant, v. BILL PRIM, et al., Respondents‐Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20‐cv‐00072 — Steven Charles Seeger, Judge. ____________________ ARGUED OCTOBER 29, 2020 — DECIDED JANUARY 26, 2021 ____________________ Before FLAUM, KANNE, and HAMILTON, Circuit Judges. KANNE, Circuit Judge. E.F.L.’s1 petition for habeas corpus asks that we enjoin the Department of Homeland Security from removing her while her Violence Against Women Act 1 Because of E.F.L.’s allegations of domestic abuse and her fear of re‐ taliation, this court granted her motion to use a pseudonym while pursu‐ ing this appeal. See Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869 , 872 (7th Cir. 1997). 2 No. 20‐1200 petition is pending. That petition, though, has been approved. So E.F.L.’s request is moot. Plus, Congress has divested us of jurisdiction over such challenges. We thus affirm the district court’s decision dismissing E.F.L.’s habeas petition for want of jurisdiction, and we terminate our temporary stay of re‐ moval. I. BACKGROUND E.F.L. is a Mexican national and citizen who has lived in the United States for nearly twenty years.2 During that time, she has endured domestic abuse that is extreme in nature. We will not repeat any nongermane details of her harrowing alle‐ gations here. But in 2018, the Department of Homeland Secu‐ rity (“DHS”) discovered E.F.L.’s undocumented presence in the country, reinstated a prior removal order against her, and scheduled her removal. E.F.L. then travailed several avenues pursuing relief from removal. First, E.F.L. filed an application for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture. While that application was un‐ der review, she sought alternative relief by filing a self‐peti‐ tion under the Violence Against Women Act (“VAWA”) with the United States Citizenship and Immigration Services (“USCIS”). The resolution of these pursuits has been a bit circuitous. An immigration judge and the Board of Immigration Appeals denied E.F.L.’s application for withholding of removal, and we declined to review that decision. After we did so—but 2 We accept as true all of E.F.L.’s well‐pled factual allegations and draw all reasonable inferences in her favor. See Long v. Shorebank Dev. Corp., 182 F.3d 548 , 554 (7th Cir. 1999). No. 20‐1200 3 while E.F.L.’s VAWA petition remained pending—DHS sought to execute E.F.L.’s removal order. That prompted E.F.L. to file the habeas petition currently before us. E.F.L.’s habeas petition seeks “preliminary and permanent injunctive relief enjoining [DHS] from removing [her] from the U.S. while her VAWA self‐petition remains pending with USCIS.” As a basis for this injunction, the petition alleges that “[i]f USCIS approves her VAWA self‐petition, then [she] will receive deferred action, employment authorization, and per‐ mission to remain in the U.S.” And as a result, DHS would violate the Due Process Clause and the Administrative Proce‐ dure Act by executing E.F.L.’s removal order while her VAWA petition remains pending. The district court dismissed E.F.L’s habeas petition for lack of subject matter jurisdiction because 8 U.S.C. § 1252(g) provides that no court has jurisdiction to entertain a challenge to DHS’s decision to execute a removal order. That decision is the basis of this appeal. We entered a temporary stay of re‐ moval while considering this appeal. During the pendency of this appeal, USCIS approved E.F.L.’s VAWA petition. Based on that approval, E.F.L. sub‐ mitted adjustment of status and waiver applications to USCIS. She has not yet received work authorization as she expected. II. ANALYSIS “We review de novo the district court’s dismissal for lack of subject‐matter jurisdiction.” Glaser v. Wound Care Consult‐ ants, Inc., 570 F.3d 907 , 912 (7th Cir. 2009) (citing Scott v. Trump Ind., Inc., 337 F.3d 939 , 942 (7th Cir. 2003)). “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and 4 No. 20‐1200 statute, which is not to be expanded by judicial decree.” United States v. Alkaramla, 872 F.3d 532 , 534 (7th Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 , 377 (1994)). E.F.L.’s habeas petition falls outside of that limited juris‐ diction for two reasons. First, the petition is moot because E.F.L.’s VAWA petition has been approved. Second, in 8 U.S.C. § 1252(g) Congress stripped federal courts of jurisdic‐ tion over such challenges to executive branch decisions to ex‐ ecute removal orders. A. Mootness The Constitution limits our jurisdiction to resolving live “Cases” and “Controversies,” rather than issuing advisory opinions. U.S. Const. art. III, § 2, cl. 1. “Mootness is a consti‐ tutional doctrine designed to avoid the issuance of advisory opinions. ‘[A] suit becomes moot … when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Trinity 83 Dev., LLC v. ColFin Midwest Funding, LLC, 917 F.3d 599 , 601–02 (7th Cir. 2019) (first alteration in original) (quoting Chafin v. Chafin, 568 U.S. 165 , 172 (2013)). If this oc‐ curs, federal courts lose subject matter jurisdiction over the case. See In re Repository Techs., Inc., 601 F.3d 710 , 716–17 (7th Cir. 2010). We thus have a “constitutional obligation to resolve the question of mootness” and address it sua sponte if needed. United States v. Fischer, 833 F.2d 647 , 648 n.2 (7th Cir. 1987) (citing North Carolina v. Rice, 404 U.S. 244 , 246 (1971)). E.F.L.’s habeas petition is moot because it seeks to enjoin DHS from executing her removal order while her VAWA pe‐ tition is pending, but that petition has now been approved. So we cannot grant E.F.L. the effectual relief she asks for. No. 20‐1200 5 Both E.F.L. and the government argue that, nevertheless, this case still presents a live dispute because E.F.L. is now seeking other forms of relief from removal, such as adjust‐ ment of status, that are “natural successors” to her now‐ap‐ proved VAWA petition. But E.F.L.’s habeas petition does not ask for an injunction so that she can seek such relief. It asks for one so that USCIS can rule on her VAWA petition. In fact, the habeas petition re‐ peats several times that “[i]f USCIS approves her VAWA self‐ petition, then [E.F.L.] will receive deferred action, employ‐ ment authorization, and permission to remain in the U.S.,” in‐ dicating that there were no “natural successors” to the VAWA petition. Given our limited role of ruling on the cases that come be‐ fore us, we will not amend E.F.L.’s petition to state otherwise just to keep this matter alive. See N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525 , 1526 (2020) (holding that the case became moot once the challenged statute changed during the appeal process, and declining to rule on the propriety of the updated statue or consider alternative forms of relief not requested in the complaint). Both parties also argue that our recent decision in Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020), compels us to hold that this case is not moot. We disagree. Meza Morales was an undocumented immigrant who ap‐ plied to USCIS for a “U visa,” which could have entitled him to remain in the United States and to seek work authorization. Id. at 657–58. While this petition was pending, Immigration and Customs Enforcement sought to remove him. Id. at 659– 60. After unsuccessfully seeking several forms of relief, Meza 6 No. 20‐1200 Morales applied to us for an emergency stay of removal while his U visa application was pending. Id. at 660. As we were re‐ viewing Meza Morales’s case, USCIS approved him for a U visa and granted him deferred action. Id. His “removal order remain[ed] on the books, though, and Meza Morales con‐ tinue[d] to petition our court for review of it.” Id. We thus held that the approval of Meza Morales’s U visa application did not render his case moot; Meza Morales asked for “vacatur of the removal order,” and we could still grant that relief. Id. E.F.L.’s habeas petition is different. It does not request that we vacate E.F.L.’s removal order or grant her any other still‐ possible forms of relief. All it asks is that we enjoin DHS from removing E.F.L. while her VAWA petition is pending. As ex‐ plained, we are now wholly unable to provide that relief. E.F.L. lastly argues that her petition is not moot because the issues it raises are “capable of repetition, yet evading re‐ view.” Fischer, 833 F.2d at 649 . For this mootness exception to apply, “there must be a ‘“demonstrated probability” that the same controversy will recur involving the same complaining party.’” Id. (quoting Murphy v. Hunt, 455 U.S. 478 , 482 (1982)). That condition is not met here because the controversy set forth in E.F.L.’s habeas petition—whether DHS can execute E.F.L.’s removal order while she has a pending VAWA peti‐ tion—cannot recur. Her VAWA petition has been approved once and for all. B. 8 U.S.C. § 1252(g) Congress has given federal courts of appeal the power to review removal orders. 8 U.S.C. § 1252(a). But what Congress can give, it can take away. In 8 U.S.C. § 1252(g), Congress did just that and divested us of jurisdiction over challenges to No. 20‐1200 7 executive branch decisions to execute removal orders. That ju‐ risdiction‐stripping provision states: Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), includ‐ ing section 2241 of Title 28, or any other habeas corpus pro‐ vision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [or DHS] to commence proceedings, ad‐ judicate cases, or execute removal orders against any alien under this chapter.3 This statute does not sweep broadly; only challenges to the three listed decisions or actions—to commence proceedings, adjudicate cases, or execute removal orders—are insulated from judicial review. Reno v. Am.‐Arab Anti‐Discrimination Comm., 525 U.S. 471 , 482 (1999). For instance, in Fornalik v. Per‐ ryman, we exercised jurisdiction over a noncitizen’s habeas petition, and even stayed the execution of his removal order, because “[h]is claim [wa]s not that the Attorney General [wa]s unfairly executing a removal order, but rather that a prior, un‐ related error ma[de] his removal improper.” 223 F.3d 523 , 532 (7th Cir. 2000). But § 1252(g)’s narrow sweep is firm; we cannot entertain challenges to the enumerated executive branch decisions or actions. For example, in Sharif ex rel. Sharif v. Ashcroft, two ha‐ beas petitioners sought to enjoin the Immigration and Natu‐ ralization Services (“INS”) from executing removal orders 3 Section 1252(g)’s reference to the Attorney General applies to the de‐ cisions and actions of DHS. See 6 U.S.C. §§ 251, 557; Elgharib v. Napolitano, 600 F.3d 597 , 606–07 (6th Cir. 2010) (“[T]he statutory reference to the ‘At‐ torney General’ in § 1252(g) now means ‘Secretary of DHS.’”). 8 No. 20‐1200 against them while they pursued administrative review and applied for statutory relief. 280 F.3d 786 , 787 (7th Cir. 2002). We held that § 1252(g) barred federal courts from exercising jurisdiction over these petitions because they arose from the INS’s decision to execute the removal orders. Id.; see also Gomez‐Chavez v. Perryman, 308 F.3d 796 (7th Cir. 2002) (hold‐ ing that § 1252(g) barred an immigrant’s challenge to the exe‐ cution of a removal order while his application for waiver of inadmissibility was outstanding); Fedorca v. Perryman, 197 F.3d 236 , 240 (7th Cir. 1999) (“Fedorca seeks as relief only a stay of deportation pending his appeal to the BIA—or in other words, review of the decision to execute his deportation, which is barred by § 1252(g).”). E.F.L.’s habeas petition falls directly in § 1252(g)’s path. Like the petitioners in Sharif, E.F.L. challenges DHS’s decision to execute her removal order while she seeks administrative relief. And unlike the petitioner in Fornalik, she does not chal‐ lenge the legality of her removal order. Federal courts thus do not have jurisdiction to hear her claim. The heart of E.F.L.’s argument to the contrary is that § 1252(g) limits judicial review of DHS’s “discretionary deci‐ sions” to execute removal orders, but here, E.F.L. challenges DHS’s “legal authority” to execute her removal order her while she seeks administrative relief. This argument is not persuasive. First, it runs smack into precedent. In Sharif, to take just one of many examples, the petitioners made nearly identical arguments, as explained above, and we held that § 1252(g) barred us from exercising jurisdiction. No. 20‐1200 9 Second, the distinction between DHS’s “discretionary de‐ cisions” and its “legal authority” to execute removal orders is illusory. Section 1252(g) precludes judicial review of “any” challenge to “the decision or action by [DHS] to … execute removal orders.” That includes challenges to DHS’s “legal au‐ thority” to do so. Otherwise, § 1252(g) would be a paper tiger; any petitioner challenging the execution of a removal order could characterize his or her claim as an attack on DHS’s “le‐ gal authority” to execute the order and thereby avoid § 1252(g)’s bar. See Ragbir v. Homan, 923 F.3d 53 , 64 (2d Cir. 2019), cert. granted, judgment vacated sub nom. Pham v. Ragbir, 141 S. Ct. 227 (2020) (“To remove th[e] decision [to execute a removal order] from the scope of section 1252(g) because it was allegedly made based on unlawful considerations would allow plaintiffs to bypass § 1252(g) through mere styling of their claims.”); Tazu v. Att’y Gen. U.S., 975 F.3d 292 , 298 (3d Cir. 2020) (“Any other rule would gut § 1252(g).”). We will not render § 1252(g) so toothless. E.F.L. also makes several secondary arguments against the application of § 1252(g). To start, she relies on the Supreme Court’s decision in I.N.S. v. St. Cyr, which allowed a habeas petitioner to challenge “the Attorney General’s conclusion that, as a matter of statutory interpretation, he [wa]s not eligi‐ ble for discretionary relief.” 533 U.S. 289 , 298 (2001). E.F.L. has not presented a similar challenge. Instead, she has asked a federal court to bar DHS’s execution of her admittedly valid removal order. In addition, St. Cyr’s only mention of § 1252(g) is a footnote explaining that the section was “not relevant” and reaffirming Reno’s holding that § 1252(g) bars jurisdiction over challenges to the execution of removal orders. Id. at 311 n.34 (citing Reno, 525 U.S. at 471 )). 10 No. 20‐1200 E.F.L. also asserts that in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), we created an exception to § 1252(g) that ap‐ plies here. We did not. In Subhan, we reviewed an immigra‐ tion judge’s decision to enter an order of removal and held that the immigration judge erred in denying the petitioner a continuance in the proceedings without reasoning why. Id. at 595. The case had nothing to do with § 1252(g). As a final note, contrary to E.F.L.’s arguments, neither the APA nor the Suspension Clause mandates that we must have jurisdiction over E.F.L.’s petition. The APA is inapplicable be‐ cause § 1252(g) precludes judicial review and because DHS’s decision to execute E.F.L.’s removal order is discretionary. 5 U.S.C. § 701(a) (“This chapter applies, according to the provi‐ sions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”); see also Lalani v. Perryman, 105 F.3d 334 , 337 (7th Cir. 1997) (“[T]he APA is not a useful tool for aliens challenging immigration decisions.”). And the Suspension Clause is inapplicable because E.F.L.’s habeas petition does not “contest[] the lawfulness of restraint” or seek to “secur[e] release” from custody; it instead vies for her right to “remain in [the United States] or to obtain administrative review po‐ tentially leading to that result.” Depʹt of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 , 1969 (2020). III. CONCLUSION We acknowledge the district court’s recognition of “the se‐ riousness of E.F.L.’s allegations about decades of abuse, and the extraordinarily difficult situation that she and her family continue to face.” But we cannot provide E.F.L. the relief that she seeks. The judgment of the district court is therefore AFFIRMED, and the temporary stay of DHS’s execution of No. 20‐1200 11 E.F.L.’s removal order is TERMINATED as of the date of this opinion.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 19-2592 SIDNEY L. PETERSON, Plaintiff-Appellant, v. WEXFORD HEALTH SOURCES, INC., ARTHUR DAVIDA, SARA MAYS, and LOREATHA COLEMAN, Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 19-cv-415 — Charles P. Kocoras, Judge. ____________________ ARGUED NOVEMBER 3, 2020 — DECIDED JANUARY 26, 2021 ____________________ Before KANNE, SCUDDER, and ST. EVE, Circuit Judges. KANNE, Circuit Judge. Illinois inmate Sidney Peterson was injured after he personally applied a caustic medication to treat his genital warts. He now seeks to hold the prescribing doctor, the attending nurses, and Wexford Health Sources, Inc., accountable under state and federal law. 2 No. 19-2592 Peterson’s federal claims end here because he failed to state a claim for deliberate indifference against any of the de- fendants. However, all parties agree that Peterson’s state-law negligence claims were timely brought. We agree, and those claims may continue. We affirm the district court’s dismissal of Peterson’s delib- erate indifference claims, and we reverse its dismissal of Pe- terson’s state-law negligence claims and remand for further proceedings. I. BACKGROUND In January 2015, Sidney Peterson suffered from genital warts while incarcerated at the Stateville Correctional Center in Joliet, Illinois. 1 Dr. Arthur Davida—a physician at Stateville and employed by Wexford Health Sources, Inc.—prescribed Peterson a topical medication known as Podocon-25 to re- move his warts. Podocon-25 contains a caustic substance called podophyl- lin. It should be applied sparingly and then removed thor- oughly with soap and water. Its packaging, in accordance with FDA regulations, states that “PODOCON-25© IS TO BE APPLIED ONLY BY A PHYSICIAN. IT IS NOT TO BE DISPENSED TO THE PATIENT.” It also warns of potential “ADVERSE REACTIONS: The use of topical podophyllin has been known to result in paresthesia, polyneuritis, paralytic 1 We accept as true the facts stated in the operative complaint for pur- poses of this appeal and review them in the light most favorable to Peter- son. Perez v. Fenoglio, 792 F.3d 768 , 774 (7th Cir. 2015) (citing Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994 , 997 (7th Cir. 2014)). No. 19-2592 3 ileus, pyrexia, leukopenia, thrombocytopenia, coma and death.” But Dr. Davida did not apply the Podocon-25 to Peterson’s genital warts. Neither did Sarah Mays, a licensed practical nurse at Stateville, nor Loreatha Coleman, a registered nurse there. Instead, Mays and Coleman instructed Peterson to ap- ply the treatment himself. He did so and suffered personal in- juries as a result. (It is unclear whether Peterson used the medication in the presence of nursing staff or alone in his cell; his first complaint indicated the latter, but the operative com- plaint is silent.) The procedural background of this case is more involved than its facts. In January 2016, Peterson filed a federal com- plaint pro se against Dr. Davida, Mays, Coleman, and multiple prison officials—several correctional officers, the prison war- den and assistant warden, and the deputy director of the Illi- nois Department of Corrections—under 42 U.S.C. § 1983. In this first complaint, he alleged that the medical staff had caused him personal injuries, namely “severe soars [sic] on his penis” and resulting “permanent injuries and erectile dis- function,” when he was required to apply the Podocon-25 himself in his cell and despite the fact that it “is not to be used by a person with diabetes.” He also alleged that the other de- fendants had destroyed his shower pass permits that Dr. Davida had granted to him as part of his treatment or that they had otherwise failed to intervene to correct the situation. In March 2016, the district court conducted a review pur- suant to 28 U.S.C. § 1915A. In its March 16 order, the court granted Peterson’s motion for leave to proceed in forma pau- peris, denied his motion for attorney representation, and dis- missed his claims against all defendants except three 4 No. 19-2592 correctional officers. Peterson was advised that he could seek to file an amended complaint. After obtaining counsel, Peterson filed an amended com- plaint in July 2016, reasserting his claims under § 1983 and adding Wexford as a defendant. This amended complaint di- vided his claims into two parts: first, the Podocon-25 claims against Dr. Davida, Mays, Coleman, and Wexford; and sec- ond, the shower-pass claims against the prison officials. Pe- terson alleged more detail about Podocon-25’s properties and packaging and less detail about how and where the medica- tion was administered than in his initial pro se complaint. Af- ter discovery, the parties stipulated to dismissal, and the case was accordingly dismissed without prejudice on January 25, 2018. On January 21, 2019—nearly one year later—Peterson filed the operative complaint, again with the assistance of counsel, claiming deliberate indifference under § 1983 and negligence under Illinois law against Dr. Davida, Mays, Cole- man, and Wexford regarding his treatment with Podocon-25. Mays and Coleman filed a partial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Peter- son failed to allege sufficient facts for deliberate indifference and that his negligence claims should be barred by sovereign immunity and the statute of limitations. In response, Peterson supplemented his allegations with further detail about Podo- con-25 and its intended application. On May 23, 2019, the district court granted the motion af- ter finding that, although the complaint pled the existence of a serious medical condition, it failed to sufficiently allege that the defendants had the requisite state of mind for deliberate No. 19-2592 5 indifference. The district court also held that Peterson’s negli- gence claims were barred by the statute of limitations because his first complaint in January 2016 did not contain those alle- gations. Further, the relation-back doctrine did not apply be- cause it governs only amendments to a complaint, not an en- tirely new filing. Peterson filed a motion to reconsider, which the district court denied. Following Mays and Coleman’s successful motion to dis- miss, Dr. Davida and Wexford moved for judgment on the pleadings under Rule 12(c). The district court granted the mo- tion and dismissed the case with prejudice in a docket entry, without discussion, on July 30, 2019. Judgment was entered the next day in favor of the defendants. Peterson timely ap- pealed. II. ANALYSIS We review de novo the district court’s decision granting a motion to dismiss for failure to state a claim, “accepting as true all well-pleaded facts and drawing reasonable inferences in [Peterson’s] favor.” United Cent. Bank v. Davenport Est. LLC, 815 F.3d 315 , 318 (7th Cir. 2016) (citing McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873 , 879 (7th Cir. 2012)). For a plead- ing to survive, the plaintiff need allege “only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007). But “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (citing Twombly, 550 U.S. at 555 ). We review the district court’s order granting a motion for judgment on the pleadings the same way—“de novo, asking whether the well-pleaded factual allegations viewed in favor 6 No. 19-2592 of the nonmoving party state a facially plausible claim for re- lief.” Sinn v. Lemmon, 911 F.3d 412 , 418 (7th Cir. 2018) (citing Gill v. City of Milwaukee, 850 F.3d 335 , 339 (7th Cir. 2017)). A. Deliberate Indifference “To determine if the Eighth Amendment has been violated in the prison medical context, we perform a two-step analysis, first examining whether a plaintiff suffered from an objec- tively serious medical condition, and then determining whether the individual defendant was deliberately indiffer- ent to that condition.” Petties v. Carter, 836 F.3d 722 , 727–28 (7th Cir. 2016) (en banc) (citing Farmer v. Brennan, 511 U.S. 825 , 834 (1994)). Here, Defendants do not dispute that Peterson suffered from an objectively serious medical condition. We turn then to the second step and consider whether Peterson alleged facts plausibly stating a claim that Mays, Coleman, Dr. Davida, and Wexford were deliberately indifferent to his con- dition. To satisfy this subjective step, the complaint must allege that the defendants acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294 , 297 (1991)). “[D]eliberate indifference entails some- thing more than mere negligence” but “something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835; see also Es- telle v. Gamble, 429 U.S. 97 , 106 (1976) (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). “[T]he official must both be aware of facts from which the inference could be drawn that a No. 19-2592 7 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837 . “Prison officials must provide inmates with medical care that is adequate in light of the severity of the condition and professional norms.” Perez v. Fenoglio, 792 F.3d 768 , 777 (7th Cir. 2015). Demonstrating that the inmate received some treat- ment “does not automatically defeat a claim of deliberate in- difference.” Id. (quoting Edwards v. Snyder, 478 F.3d 827 , 831 (7th Cir. 2007)). “Deliberate indifference may occur where a prison official, having knowledge of a significant risk to in- mate health or safety, administers ‘blatantly inappropriate’ medical treatment … .” Id. (quoting Edwards, 478 F.3d at 831). In other words, “[a] plaintiff can show that the professional disregarded the need only if the professional’s subjective re- sponse was so inadequate that it demonstrated an absence of professional judgment, that is, that ‘no minimally competent professional would have so responded under those circum- stances.’” Arnett v. Webster, 658 F.3d 742 , 751 (7th Cir. 2011) (quoting Roe v. Elyea, 631 F.3d 843 , 857 (7th Cir. 2011)); see also Holloway v. Del. Cnty. Sheriff, 700 F.3d 1063 , 1073 (7th Cir. 2012). 1. Mays, Coleman, and Dr. Davida In the operative complaint, Peterson alleges that Podocon- 25 contains “a powerful caustic and severe irritant” and that its packaging repeatedly and prominently warns that it is to be applied only by a physician and is not to be dispensed to the patient. Peterson then makes allegations specific to the individual defendants. He alleges that Dr. Davida “prescribed for plain- tiff a medication known as ‘Podocon-25’” and that he 8 No. 19-2592 “ignored the FDA mandated warnings and directed that a non-physician apply the Podocon-25 to plaintiff’s genital warts.” The remaining allegations against Dr. Davida relate to his employment under Wexford. Regarding Mays and Coleman, Peterson alleges that “[t]he job duties of defendant Mays included applying the Podocon- 25 to plaintiff’s genital warts” and that “Mays refused to ap- ply the Podocon-25 to plaintiff’s genital warts, instructing plaintiff to do it himself.” He further alleges that “Mays knew that plaintiff would suffer personal injuries if plaintiff at- tempted to apply the Podocon-25 to his genital warts.” Peter- son makes the same allegations against Coleman. In response to Mays and Coleman’s motion to dismiss, Pe- terson supplemented the complaint’s allegations. 2 He listed the possible “adverse reactions” described on the packaging and stated that Podocon-25 is to be “sparingly” applied and then “thoroughly removed” with alcohol or soap and water, which were not available to him. To state a claim for deliberate indifference against these defendants, Peterson must allege that they were “aware … that a substantial risk of serious harm exist[ed],” Farmer, 511 U.S. at 837 , and that their “subjective response was so inade- quate that it demonstrated an absence of professional judg- ment,” Arnett, 658 F.3d at 751 . As the district court pointed out, Peterson makes conclusory allegations that these defend- ants had the requisite state of mind, stating that they “ignored 2 In “opposing a Rule 12(b)(6) motion,” Peterson was free to “elabo- rate on his factual allegations so long as the new elaborations are con- sistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743 , 745 n.1 (7th Cir. 2012). No. 19-2592 9 the FDA mandated warnings” and “knew that [Peterson] would suffer personal injuries.” There are no related factual claims from which we could draw an inference that they “ac- tually kn[e]w about yet disregard[ed] a substantial risk of harm to [Peterson’s] health or safety.” Rasho v. Elyea, 856 F.3d 469 , 476 (7th Cir. 2017) (citing Petties, 836 F.3d at 728 ). We acknowledge that “Rule 9(b) allows states of mind to be al- leged generally,” Armstrong v. Daily, 786 F.3d 529 , 547 (7th Cir. 2015); see also Burks v. Raemisch, 555 F.3d 592 , 594 (7th Cir. 2009), but the deliberate indifference standard is not satisfied by these conclusory statements alone. Peterson’s allegations regarding his treatment ultimately sink his complaint. Let’s consider the course of treatment as described by the complaint. Peterson did receive treatment for his genital warts. Of course, the “receipt of some medical care does not automatically defeat a claim of deliberate indifference if … the treatment was ‘so blatantly inappropriate as to evidence in- tentional mistreatment likely to seriously aggravate’ a medi- cal condition.” Edwards, 478 F.3d at 831 (quoting Snipes v. De- Tella, 95 F.3d 586 , 592 (7th Cir. 1996)) (emphasis in original). But Peterson does not allege that prescribing Podocon-25 was “blatantly inappropriate.” Id. Indeed, the complaint asserts that one of the components of Podocon-25 is “prescribed for the removal of soft genital warts.” Peterson’s claim instead re- lies on how the medication was administered. Significantly, the administration of Podocon-25 is where the complaint is most lacking. The complaint says only that Dr. Davida directed a “non-physician” to apply the medica- tion. As Peterson’s counsel clarified at oral argument, “non- physician” refers to a nurse rather than an inmate. So Peterson has alleged only that Dr. Davida, a licensed physician, 10 No. 19-2592 instructed a licensed nurse to apply a prescribed medication appropriate for treating the patient’s condition. Although Pe- terson cites Echols v. Craig in support, Dr. Davida’s alleged ac- tions do not come close to the alleged conduct in Echols. See Echols v. Craig, 855 F.3d 807 , 812 (7th Cir. 2017) (finding “no difficulty concluding that [the plaintiff] state[d] a plausible claim of deliberate indifference” where he alleged that the doctor “knew he broke a drill bit during the [tooth] extrac- tion, … sutured his gum without accounting for the broken pieces, … obtained an X-ray that confirmed its presence but did nothing to address the problem”). As for the nurses, Peterson alleges only that it was within their “job duties” to apply the medication, yet they instructed Peterson to apply the Podocon-25 himself. It does not matter whether Dr. Davida instructed them or whether they inde- pendently chose to dispense the medication to Peterson. Hol- loway, 700 F.3d at 1075 (“A nurse may … act with deliberate indifference if he or she ‘ignore[s] obvious risks to an inmate’s health’ in following a physician’s orders.” (quoting Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650 , 683 (7th Cir. 2012))). Re- gardless, the allegations fail to state a claim that their actions were “so inadequate that [they] demonstrated an absence of professional judgment, that is, that ‘no minimally competent professional would have so responded under those circum- stances.’” Arnett, 658 F.3d at 751 (quoting Roe, 631 F.3d at 857 ). At bottom, Peterson’s complaint fails to allege that any of these three defendants were “aware … that a substantial risk of serious harm exist[ed],” Farmer, 511 U.S. at 837 , and that their “subjective response was so inadequate that it demon- strated an absence of professional judgment.” Arnett, 658 F.3d at 751 . Peterson’s allegations that Dr. Davida prescribed an No. 19-2592 11 appropriate medication and instructed the nurses to adminis- ter it and that Mays and Coleman dispensed that medication to Peterson for him to apply himself do not evince “something approaching a total unconcern for the prisoner’s welfare in the face of serious risks.” Donald v. Wexford Health Sources, Inc., 982 F.3d 451 , 458 (7th Cir. 2020) (quoting Rosario v. Brawn, 670 F.3d 816 , 821 (7th Cir. 2012)). We therefore conclude that Pe- terson failed to state a claim for deliberate indifference against Dr. Davida, Mays, and Coleman. 2. Wexford Peterson has likely waived any arguments directed to the district court’s judgment in favor of Wexford by simply fail- ing to raise them on appeal. Gable v. City of Chicago, 296 F.3d 531 , 538 (7th Cir. 2002) (finding that the plaintiffs “waived two of their arguments on appeal by not developing them in their opening brief”); see also Henry v. Hulett, 969 F.3d 769 , 785–86 (7th Cir. 2020) (explaining that “waiver is the ‘inten- tional relinquishment or abandonment of a known right’” (quoting United States v. Olano, 507 U.S. 725 , 733 (1993)). But even absent waiver, Peterson’s complaint fails to state a claim against Wexford for deliberate indifference. Peterson asserts that Wexford is liable under § 1983 “for the wrongdoing of its employee defendant Davida under the doctrine of respondeat superior.” This theory fails. Under Mo- nell and its progeny, a corporation can be liable under § 1983 only for its own policies and practices, not under a theory of respondeat superior. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 , 691 (1978); accord Whiting v. Wexford Health Sources, Inc., 839 F.3d 658 , 664 (7th Cir. 2016); Shields v. Ill. Dep’t of Corrs., 746 F.3d 782 , 796 (7th Cir. 2014); Iskander v. Vil- lage of Forest Park, 690 F.2d 126 , 128 (7th Cir. 1982). Despite 12 No. 19-2592 calls to reconsider our precedent, “we have chosen to leave Iskander undisturbed,” Wilson v. Wexford Health Sources, Inc., 932 F.3d 513 , 522 (7th Cir. 2019) (citing Gaston v. Ghosh, 920 F.3d 493 , 498 (7th Cir. 2019) (Hamilton, J., concurring)), and Peterson presents no reason for us to take another look. Furthermore, “‘if the plaintiff’s theory of Monell liability rests entirely on individual liability,’ as [Peterson’s] does here, then ‘negating individual liability will automatically preclude a finding of Monell liability.’” Donald, 982 F.3d at 463 (quoting Whiting, 839 F.3d at 664 ). This claim against Wexford must therefore, at any rate, meet the same fate as the claim against Dr. Davida. B. Timeliness of Negligence Claims The district court dismissed Peterson’s negligence claims because it concluded that the statute of limitations had run. All parties now agree that this conclusion is incorrect and re- quest that we reverse the dismissal of the state-law claims. We must oblige, for we agree that the district court was mistaken. Peterson filed his first complaint on January 25, 2016; amended it in July 2016; and voluntarily dismissed it on Jan- uary 25, 2018. The initial and amended complaint related to Peterson’s alleged injury from 2015. Peterson then filed the present complaint on January 21, 2019, and included negligence counts for the first time, the district court found. Because Peterson exhausted his adminis- trative remedies on January 10, 2016, and the statute of limi- tations in Illinois is two years for personal-injury claims, 735 ILCS 5/13-202, the district court concluded that Peterson’s negligence claims fell outside the limitations period. The court further concluded—correctly—that the relation-back No. 19-2592 13 doctrine under Federal Rule of Civil Procedure 15(c) and 735 ILCS 5/2-616 could not save the claims because that doctrine only applies to amendments of existing complaints, not new causes of action. However, the district court did not take into account 735 ILCS 5/13-217, under which plaintiffs have an “absolute right to refile their complaint within one year” of its voluntary dis- missal. Timberlake v. Illini Hosp., 676 N.E.2d 634 , 636 (Ill. 1997); 735 ILCS 5/13-217 (West 1994). 3 Under this savings statute, a plaintiff refiling an action can bring new claims “that arose from the ‘same transaction’ alleged in the prior action.” Rocha v. Rudd, 826 F.3d 905 , 910 n.3 (7th Cir. 2016) (quoting Richter v. Prairie Farms Dairy, Inc., 53 N.E.3d 1 , 15 (Ill. 2016)). Peterson, by refiling this complaint, was not limited to al- leging only the causes of action in his original complaint; ra- ther, he was at liberty to include any claims “arising from a single group of operating facts.” Richter, 53 N.E.3d at 15 (cit- ing Hayashi v. Ill. Dep’t of Fin. And Pro. Regul., 25 N.E.3d 570 (Ill. 2014)). His negligence claims relate to the events underly- ing the initial complaint’s deliberate indifference claims. Thus, regardless of whether Peterson brought his negligence claims in his first two complaints, the savings statute pro- tected those claims from the two-year statute of limitations. 3 In 1995, the Illinois legislature amended this statute when it enacted Public Act 89-7, § 15, but the Supreme Court of Illinois struck down the entire act in Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill. 1997). Hudson v. City of Chicago, 889 N.E.2d 210 , 214 n.1 (Ill. 2008); Rocha v. Rudd, 826 F.3d 905 , 909 n.1 (7th Cir. 2016). The operative language of this statute therefore comes from the pre-1995 version. Rocha, 826 F.3d at 909 n.1. 14 No. 19-2592 The district court erred in dismissing Peterson’s negligence claims for being untimely. III. CONCLUSION We AFFIRM the district court’s dismissal of Peterson’s de- liberate indifference claims against all defendants. We REVERSE the dismissal of his negligence claims and REMAND for further proceedings consistent with this opin- ion.

2020-01-17 22:01:57.512816+00

Marquette

*1080OPINION. MaRQuette: The deduction claimed by the petitioner, if allowable, must come within the provisions of section 234 (a) (4) of the Revenue Act of 1921. So far as applicable to this proceeding, the provisions are as follows: Sec. 234. (a) That in computing the net income ol a corporation subject to the tax imposed by section 230 there shall be allowed as deductions: * * * * # * I» (4) Losses sustained during the taxable year and not compensated for by insurance or otherwise; unless, in order to clearly reflect the income, the loss should in the opinion of the Commissioner be accounted for as of a different period. In our opinion the petitioner is not entitled to its claimed deduction in 1922 for the reason that no loss is shown to have been sustained in that year. If any loss occurred, it was in 1921, when the petitioner agreed to the adjustment of its contracts with the Auto Fabrics Co. and entered upon its books a credit to that company for the amount due under the adjustment. The controlling statute permits deductions for “ losses sustained during the taxable year.” Here, the loss, if any, was definitely fixed in 1921 and was deductible for that year, but there is no provision of the statute for carrying a loss over to later years for purposes of deduction. See F. Bauer, 2 B. T. A. 147; Humble & Gulf Coast Oil Co., 5 B. T. A. 328; Dixie Groves & Cattle Co., 5 B. T. A. 1274; H. H. DeLoss, 6 B. T. A. 784. The time of actual payment of a loss does not necessarily determine the time when the loss occurred. Mrs. J. C. Erwin, 7 B. T. A. 919. Whether or not the petitioner would be able to make adjustments with its customers similar to that exacted from the petitioner by the Auto Fabrics Co. does not in any way affect the situation. The petitioner was party to two groups of business contracts — group A, by which the petitioner obligated itself to buy from the Fabrics Co. certain goods at specified prices, and group B, by which the petitioner agreed to sell these or similar goods to its customers for specified prices. Each group of contracts was separate and distinct from the other; each was enforceable between the contracting parties without regard to what might occur regarding the other group. The rights, powers, and privileges, and the duties and obligations created by one set of contracts were entirely independent of those created by the other set. So far as we are advised, there was no legal relation bet-ween the two groups of contracts. The obligation to the Fabrics Co. was not made dependent upon the petitioner’s ability to enforce its contracts with its customers. Therefore, under the statute, the petitioner was not entitled to defer its deduction for *1081the loss claimed until such time as it might be determined whether that loss could be covered by collections from customers. The respondent asserted a penalty under section 250 (b) of the Revenue Act of 1921, amounting to 50 per cent of the deficiency in tax. That section, so far as is here applicable, provides that: If any part of the deficiency is due to fraud with intent to evade tax, then * * * there shall be added as part of the tax 50 per centum of the deficiency in tax. The record does not, in our opinion, disclose any evidence of fraud. Even if the petitioner was mistaken as to the deductibility of its alleged loss, an error in judgment as to what does, and what does not, fall within the purview of the statute is not an indication of bad faith to be branded as fraud and penalized as such. The petitioner’s income tax for 1922 should be recomputed, and the penalty asserted by the respondent should be remitted. Judgment will he rendered wider Rule 50.

2020-01-17 22:01:57.609384+00

Maequette

OPINION. Maequette : The petitioner contends that he and his wife should be permitted to make separate income-tax returns as to the profits received by them from the Staebler Oil Co. The respondent has asserted that all of such profits are taxable to the petitioner alone, No other issue is presented by the record. *1087The petitioner proceeds under section 218 (a) of the Revenue Act of 1921, which provides: Sec. 218. (a) That individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be inc.uded in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year, or, if his net income for such taxable year is computed upon the basis of a period different from that upon the basis of which the net income of the partnership is computed, then his distributive share of the net income of the partnership for any accounting period of the partnership ending within the fiscal or calendar year upon the basis of which the partner’s net income is computed. It was stated by counsel that the petitioner, when he gave to his wife an equal share of his net profits, intended to make her a partner in the business. However, under the law of Michigan as interpreted by the courts of that State, a wife may not become a partner with her husband. Artman v. Ferguson, 73 Mich. 146; 40 N. W. 907. The petitioner now concedes this, but he contends that a joint adventure was formed, and that for income-tax purposes it is to be treated in like manner as a partnership. In support of his contention, reliance is placed upon L. F. Sunlin, 6 B. T. A. 1232, wherein this Board held that although the intermarriage of a man and woman who were at the time business partners might work a dissolution of that partnership, still the wife was not thereby deprived of her separate income derived from the share of capital and services which she had contributed to the business. But that is a very different situation from the one now before us. Here, the petitioner’s wife has made no contribution to the business either of capital or services. The essential facts in the Sunlin case are so widely variant from those now before us that that decision can not be considered an authority for us in the present proceeding. In our opinion, the decision of this Board in Ormsby McKnight Mitchel, 1 B. T. A. 143, is controlling in the present instance. There, Mitchel made a written agreement with his wife, which provided, among other things, that “ The party of the second part [the wife] shall be entitled to one-half of the profits which shall come to the party of the first part [Mitchel] from the firm.” In the proceeding now before us “the petitioner gave his wife an equal share in his portion of the net profits of the Staebler Oil Company.” The petitioner’s wife was credited, monthly, on the books of the company with the share of the profits so given her. In the Mitchel case, settlements between Mitchel and his wife were made annually; but the frequency or infrequency of the settlement periods can not affect nor overcome the fact that in each case the profits first accrued to the taxpayer as income, and only after such accrual did the wife receive the agreed share. As was said in the Mitchel case: *1088Clearly, under the statute, the income derived by the partnership must be returned for taxation as the income of the respective partners in accordance with their distributive shares and can not be diverted to become the income of someone else by agreement or otherwise. No one is permitted to make his own tax law and if it were permitted to modify the express provisions of the taxing statute by agreement any taxpayer could say what should or should not be income. To merely state the proposition is to expose its fallacy ⅜ * *. The income from taxpayer’s interest in the partnership is first income to him, and no matter how he tries to dispose of it or does dispose of it, it is taxable to him as income from his interest therein. It does not alter the situation to say that as soon as income arises in the partnership at that instant it becomes the property of the grantee, as this is mere assertion. The fact is that before it becomes the property of the grantee, it is income, within the meaning of the law, to the grantor, and the statute recognizes this fact when it requires the income of the partnership to be included as the income of the partners in their individual returns according to their respective shares therein. The fallacy of the contention arises from the failure to take account of the fact that the taxpayer is contracting to dispose of something which must first be his before it becomes the property of anyone else. ⅜ * * * ⅜ * * When Congress provides that a person in a certain status shall be subject to taxation in a particular manner, we do not believe that person can, at one and the same time, retain such status and by agreement relieve bimself from the effect of the act. We hold, therefore, that the petitioner’s entire distributive share of the net profits of the Staebler Oil Co. constituted income to him during the taxable period, which should be included in computing the amount of his income tax, and the determination of the respondent is approved. Judgment wild he. entered for the resfondent.

2020-01-17 22:01:57.650338+00

Marquette

*1089OPINION. Marquette: The only question presented in this proceeding is whether the petitioner is entitled to deduct the full amount of his expenses as set forth in the findings of fact. The respondent has determined that only one-half the expenses are deductible. The Revenue Act of 1921, in section 214 (a) (1), provides that there shall be allowed as deductions: *1090All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * * traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of the trade or business. Section 215 (a) (1) of the same Act prohibits any deduction “ in respect of personal, living, or family expenses.” The evidence clearly shows that the petitioner did not maintain any permanent place of business during the years 1922 and 1923. He visited various cities, from Denver to Atlanta, New York, and New England; from the Great Lakes to points in Texas. And wherever he stopped, there his headquarters were for the time being. Concerning his residence, which he alleges was in Buffalo, the petitioner testified thus: Q. In 1922 and 1923 did you have a home in Chicago? A. No, sir. Q. 'What was your home address at that time? A. As stated, Mrs. Duncan spent six or seven months a year at Excelsior Springs and I really had no headquarters myself except the time she was back in Buffalo when I would come there and use that as headquarters the same as if I worked there, working out of headquarters there the same as I worked out of headquarters at Chicago or some other point over a period of time. Q. Did you maintain a home at Buffalo? A. Only for Mrs. Duncan when she was there. Q. Where was that home? A. At Lafayette Hotel. Q. Did you maintain an apartment there the year around? A. No, sir. Q. You merely rented a room? A. Yes, sir. Q. When Mrs. Duncan was in the city? A. Yes, sir. Q. Did you occupy that room with her in Buffalo? A. When I would go there I would probably change to the quarters she had, and at times I would also have a separate room. Q. At times you would also occupy the same room? A. Yes, sir. This evidence is not sufficient, in our opinion, to establish the fact of a home in Buffalo. But even if that fact were established, it is clear from the statute that the petitioner could not deduct his expenditures for meals, lodging, and the like, while he was in that city; and as he offers no evidence to show what part of his time was spent in Buffalo we would have no basis on which to compute deductions other than those which the respondent has already allowed. A similar question arose in Mort L. Bixler, 5 B. T. A. 1181, where it appeared that the taxpayer resided in Mobile, Ala., carried on no trade or business there, but was employed on a salary to conduct fairs and expositions in various places. In disallowing the claim that his *1091expenses while away from borne were deductible as business expenses under the 1921 Revenue Act, this Board said: In the opinion of the Board, traveling and living expenses are deductible under the provisions of this section only while the taxpayer is away from his place of business, employment, or the post or station at which he is employed, in the prosecution, conduct, and carrying on of a trade or business. A taxpayer may not keep his place of residence at a point where he is not engaged in carrying on a trade or business, as this petitioner testified was true in this instance, and take a deduction from gross income for his living expenses while away from home. We think section 214 (a) (1) intended to allow a taxpayer a deduction of traveling expenses while away from his post of duty or place of employment on duties connected with his employment. The language quoted is very applicable to the present proceeding. While it may be said that the petitioner’s “ trade or business ” consisted entirely of selling goods in various parts of the country, it is also true that he had no definite post of employment, or place of business. He seeks to deduct all of his expenses for meals, lodging, laundry, and the like, for the entire period of both taxable years, In the light of the decision quoted above, and under the statute, such expenses are not deductible. They can not be considered as expenses incurred in carrying on a trade or business, in view of the distinction drawn by the sections of the statute which we have quoted. And the evidence is not sufficient to justify classing them as traveling expenses while away from home. The words which we have emphasized were not placed aimlessly in the statute, but they have a definite purpose which is readily discernible when they are read in connection with section 215 (a) (1) of the Revenue Act of 1921. That purpose is to allow deductions for expenses necessarily incident to carrying on one’s trade or business, and only including meals and lodging when that trade or business requires the taxpayer to be away from his home or usual place of business. But in our opinion the Congress did not intend to allow as deductions all the year’s expenses for meals, lodging, laundry, etc., incurred by a taxpayer who maintained no permanent home, no definite headquarters; who traveled on a roving commission, with headquarters wherever he happened to be. This same question was again considered by this Board in Chester D. Griesemer, 10 B. T. A. 386. In that case Griesemer lived in Paris for three years, looking after the interests of his business firm. While there he rented an apartment and employed a cook and housekeeper. He also maintained his home in Brooklyn where his mother and sister lived and were supported by him. It was there decided that Griesemer might properly deduct such of his living expenses in Paris as he had substantiated by proof. In that connection the following language appears: We are convinced that the terms “personal, living, or family expenses” referred to in section 215, supra, were intended by tbe Congress to be applied *1092in the ordinarily accepted sense oí those words and not in the broad and sweeping sense in which the respondent is seeking to apply them. Simply because the amounts in question happen to be “ living ” expenses in a strict sense does not prevent them from being deductible if they are ordinary and necessary and are shown to have been incurred in carrying on his trade or business and are clearly in addition to his living expenses at the usual place of abode which he maintains for his mother and sister. The Congress undoubtedly intended that the taxpayer’s personal expenditures in maintaining his usual place of abode should not be deducted, but that all expenditures made by the taxpayer in addition to those amounts if incurred in carrying on a trade or business should be deducted in determining net income. While we are in accord with the principle thus stated, it can not avail the present petitioner as he has not shown that his personal living expenses, because of his business as a salesman, were in excess of those ordinarily required when not engaged in such business. Some of the expenses claimed as deductions, such as entertainment of customers, long-distance telephone charges, railway and Pullman fares, and items of similar character, doubtless should be allowed as business expense. The respondent has determined that one-half the amounts claimed as deductions on account of expenses may be properly allowed. The evidence presented is not sufficient to overcome the presumption that such determination is correct. Judgment will he entered for the respondent.

2020-01-17 22:01:57.689547+00

Arundell

*110OPINION. Arundell: The respondent’s determination that the petitioner was an operating trust, taxable as a corporation, was made on March 9, 1926, based upon I. T. 2061 (C. B. III-2, p. 5), published August 11, 1924, as the result of the decision rendered in Hecht v. Medley, 265 U. S. 144. The provisions of I. T. 2061 applied to the Bevenue Act of 1918, under which the petitioner filed its return on March 24, 1921. Subsequent to the publication of I. T. 2061, the Revenue Act of 1928 was enacted, section 704 (a) of which provides: SEC. 704. TAXABILITY OF TRUSTS AS «ORPORATIOIÍS-RETROACTIVE. (a) If a taxpayer filed a return as a trust for any taxable year prior to the taxable year 1925 such taxpayer shall be taxable as a trust for such year and. not as a corporation, if such taxpayer was considered to be taxable as a trust and not as a corporation either (1) under the regulations in force at the time the return was made or at the time of the termination of its existence, or (2) under any ruling of the Commissioner or any duly authorized officer of the Bureau of Internal Revenue applicable to any of such years, and interpretative of any provision of the Revenue Act of 1918, 1921, or 1924, which had not been reversed or revoked prior to the time the return was made, or under any such ruling made after the return was filed which had not been reversed or revoked prior to the time of the termination of the taxpayer’s existence. Section 704 (a) of the 1928 Act being retroactive to taxable years prior to 1925, our problem is to determine whether the petitioner comes within any of its provisions. *111An examination of the Bureau’s rulings published in cumulative bulletins for the period commencing in April, 1919, and ending in June, 1921, discloses that without a single exception the matter of control vested in beneficiaries under a trust was the basis used by the Bureau for determining whether a particular organization was in fact an association, taxable as a corporation, or a trust. This may be illustrated by the following statements appearing in rulings of the Bureau during that period: The question as to whether a trust of this nature is taxable as an association, under the several acts enumerated, depends upon the extent of the powers reserved to the holders of the certificates of beneficial interest to regulate the management of the affairs of the trust. Where the beneficiaries do not retain any substantial control over the affairs of the trust, it is held not to be an association or taxable as such. (S. M. 1205, C. B. No. 1 (April-December, 1919), p. 7.) It is the extent of the control vested in beneficiaries under a trust agreement, rather than the extent to which such control is exercised, that is determinative of the question whether the trust is in fact an association within the meaning of the Revenue Act of 1918. (O. D. 407, C. B. No. 2 (January-June, 1920), p. 11.) Whether or not a trust of the general nature of the one in the instant case is to be regarded as an association under the Revenue Act of 1918, depends upon the degree of control which the beneficiaries exercise over the management of the trust. (S. M. 1068, 1242). (Sol. Op. 56, C. B. No. 3 (July-December, 1920), pp. 10, 11.) It has been consistently held that it. is the extent of the control vested in beneficiaries under a trust agreement that is determinative of the question whether the trust is in fact an association. (Art. 1504, Reg. 45; O. D. 407, C. B. 2, p. 11; S. 1337, C. B. 2, p. 9.) (O. D.931, C. B. No. 4 (January-June, 1921), PP. 11, 12.) Other published rulings of the Bureau during the same period are to the same effect. S. M. 1068, C. B. No. 1, p. 5; S. M. 1337, C. B. No. 2, p. 9; O. D. 598-A, C. B. No. 3, p. 9; Sol. Op. 49, C. B. No. 3, p. 13. No evidence was offered by the respondent to show that any of the rulings referred to above were reversed or revoked prior to the date the petitioner filed its return. That none of them were not only not reversed nor revoked prior to that date, but that the rule announced therein continued in effect in the Bureau for several years thereafter, seems apparent from G. C. M. 6417, published in Internal Revenue Bulletin No. 25, of Volume VIII, June 24, 1929, wherein it is said: * * * The Department, relying on Crocker v. Malley (249 U. S. 223, T. D. 2816), had previously ruled that control by the beneficiaries was essential in order that a trust should be classified as an association. * * * [[Image here]] *112* * * The most that can iairly be said is that * * ⅜ an examination of the Bureau rulings shows that, after the decision in Crocker v. Malley [March 17, 1919] and prior to the decision in Heoht v. Malley [May 12, 1924], a trust was not, by the Department, “considered to be taxable as a * * * corporation * * * under the regulations in force ” unless the beneficiaries, in some sense, did control the trust. Having concluded, that under rulings of the Bureau not reversed or revoked prior to March 24, 1921, the date petitioner’s return was filed, the question of whether a particular organization was a trust or an association was determined by the Bureau by the degree of control vested in beneficiaries under the trust agreement, there remains for determination the question of whether the shareholders of petitioner were, under the declaration of trust, empowered to exercise a substantial amount of control over the affairs of the trust. Under the provisions of the trust agreement, as pointed out in our prior decision, the trustees, pending the conversion of the trust property into money and the distribution of the proceeds to the certificate holders, had unrestricted power and authority to manage and operate the trust property. The trustees were appointed for the life of the trust and no provision was made in the declaration of trust for meetings of shareholders. The control reserved to the beneficiaries was limited to the approval by a majority in interest of appointments made by the trustees to fill vacancies on the board of trustees and modifications of the trust agreement. None of the powers reserved to the beneficiaries pertained to the actual management and operation of the trust property. All of them had to be exercised jointly with the trustees. Under three of- the trust agreements construed in S. M. 1068, sufra, the shareholders had the exclusive right to fill vacancies on the board of trustees, notwithstanding which, however, the Bureau held the taxpayers to be taxable as trusts. The power of beneficiaries of a trust to suggest to the court a successor trustee was not in the case decided in O. D. 620, C. B. No. 3, p. 9, regarded by the Bureau to be a sufficient amount of control to classify the organization as an association. In both O. D. 790, C. B. No. 4, p. 10, and S. M. 1337, supra, the Bureau held the taxpayers to be trusts regardless of provisions in the declarations of trust giving the beneficiaries of the trusts authority to pass upon amendments made by the trustees to the trust agreements. Powers such as were vested in the shareholders of the trust agreement before us are not, under the provisions of article 1504, Regulations 45, sufficient control in the beneficiaries of a trust to classify it as an association. In Wilkins & Lange, 15 B. T. A. 1183, where the shareholders of the trust reserved the right to increase or decrease the number of shares of the trust; to approve any changes made by the trustees in *113the number of trustees, and to fill any vacancy on the board of trustees, we held, following E. A. Landreth Co. et al., 15 B. T. A. 655, that under the Bureau’s rulings applicable to the year 1920, the taxpayer was a trust and not an association. No greater amount of control was vested in the beneficiaries of the trust before us here than was reserved to the shareholders under the trust agreement involved in the Wilkins & Lange case. It is our opinion that under the provisions of section 104 (a) of the lievenue Act of 1928, the petitioner, during the period in question, is taxable as a trust and not as an association. Accordingly, our decision promulgated January 18, 1929, is overruled, and Judgment of no deficiency will be entered for the petitioner.

2020-01-17 22:01:57.718138+00

Sterniiagen

*1096OPINION. SteRNI-iageN : The deficiency was determined in respect of the Chicago Daily News Co., and notice under the statute was mailed to that corporation. It is still in existence, having changed its name to the Strong Publishing Co., and there is no doubt of its right to proceed here. But no determination has been made in respect of the Chicago Daily News, Inc., which is a separate corporation, and therefore it has no right to proceed before the Board and the Board is without jurisdiction as to it. In respect of the Chicago Daily News, Inc., the proceeding is dismissed. Bond, Inc., 12 B. T. A. 339; San Joaquin Fruit c& Investment Co., 16 B. T. A. 1290. The principal issue urged by petitioner is that for the purpose of determining its profits taxes its invested capital as defined by section 326, Revenue Act of 1918, has been inadequately determined by reason of the omission of the value at the time of acquisition in 1893 of circulation, good will, and Associated Press membership. Petitioner contends that these items were donated by Lawson, its principal stockholder, and therefore are a paid-in surplus within section 326 (3); that, as such, the value attributable to them is within statutory invested capital, even if they be intangible property; that circulation is tangible property under the statute, and, hence, that any restriction upon paid-in surplus as excluding intangible property is not applicable to circulation. Upon these propositions of law, petitioner predicated its introduction of evidence to prove the actual value represented by these items. The evidence does not support the assertion that petitioner acquired these three alleged factors of value separately by way of gift from Lawson after its incorporation and acquisition of the alleged net tangibles as shown by a balance sheet. An auditor who recently examined the old books testified that they impressed him as being the books of a sole proprietorship. But, on the contrary, the exhibits contain formal statements made at the time of its incorporation that the petitioner succeeded to a preexisting corporation, and it is apparent that the News had been published by this corporation with all the assets and incidents of the business. This aggregate was acquired for $150,000 par value of capital .stock issued to Lawson, and it is to this transaction that the statute must be applied. In other words, there was paid in to the corporation for *1097stock or shares at the time of its organization property consisting of the cash and tangible property shown by the balance sheet (the actual value of which is not really shown by the evidence) and such intangible assets as the business had. If the balance sheet fairly indicates the value of the net tangibles, there was an asset value of $414,512 received, together with intangibles, for $150,000 of stock — • an excess of $264,502. This has apparently been included by respondent in invested capital, and there is no room for such an apportionment as was applied in St. Louis Screw Co., 2 B. T. A. 649; Nature's Rival Co., 6 B. T. A. 294; Charles Rubens & Co., 6 B. T. A. 626, to arrive at a paid-in surplus of tangibles. These items of circulation, press membership, and good will were not tangibles, and hence may not be classified under the statute as paid-in surplus, Herald-Despatch Co., 4 B. T. A. 1096; Daily Pantagraph, Inc., 9 B. T. A. 1173; Daily Pantagraph, Inc., v. United States, Court of Claims decided June 10, 1929. Since this is so as a matter of law, it matters not that there was, as we are convinced, above the net tangibles, a large and substantial value in the business which may be attributed to its growing circulation, its established good will and its Associated Press membership. The respondent was clearly right in treating this value as intangible and excluding it from invested capital. But there is enough already in the record to indicate that the situation is within section 327, requiring the special method of assessment provided in section 328. This issue has, however, been expressly reserved for further hearing under Buie 62, and the parties are therefore entitled to be heard upon it. We do not, however, regard Buie 62 as justifying a separation of issues so as to require findings of fact or discussion of law upon mesne questions which will in all probability disappear through special assessment. Here the mixed aggregate of tangibles and intangibles can not, we think, be satisfactorily segregated, and the apparently large intangible value resulting in income largely in excess of reasonable earnings on tangibles, apparently brings the case within the scope of subsections (c) and (d) of section 327, unless the contrary for other reasons appears at the further trial. It may not be amiss, however, to express the view that the evidence is, in our opinion, not convincing that the values to be attributed to circulation, good will, and press membership are as large as claimed. While it is reasonable to believe with the several witnesses that these factors of value exist, it seems to us highly artificial to treat them each as separate from the others and susceptible of separate and independent valuations, the total of which is to be computed mathematically by adding them together. Several of the witnesses who *1098had long been in the newspaper-publishing business indicated that the recognition of these items was simply as factors in the appraisement of the business as a whole, and this seems to us to be the sound view. Furthermore, the earnings of the business up to the time of this incorporation in 1893 do not in our opinion sustain a valuation of the business as a whole sufficient to assign to these three factors the values claimed. All of the remaining issues raised by the pleadings affect invested capital, i. e., taxes of prior years, building depreciation of earlier years, and leasehold exhaustion of earlier years. Since the determination of invested capital is entirely obviated in cases involving special assessment, these issues are not necessary for decision. The proceeding will be restored to the calendar for further action by the parties under Rule 62.

2020-06-05 14:08:39.833603+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_03103.htm

People v Farance (2020 NY Slip Op 03103) People v Farance 2020 NY Slip Op 03103 Decided on June 3, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department 2019-02560 2019-02826 (Docket No. F-4307-13/17G) [*1]In the Matter of Marguerite Camaiore, respondent, v v Frank Farance, appellant. Salvatore C. Adamo, New York, NY, for appellant. Marguerite Camaiore, Astoria, NY, respondent pro se. DECISION & ORDER In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated September 10, 2018, and (2) a modified order of commitment of the same court (Dean T. Kusakabe, J.), dated February 14, 2019. The order dated September 10, 2018, denied the father's objections to amended findings of fact of the same court (Solange N. Grey-Humphreys, S.M.) dated July 18, 2018, and, in effect, confirmed so much of an order of disposition of the same court (Solange N. Grey-Humphreys, S.M.) dated April 23, 2018, made after a hearing, as determined that the father willfully violated a prior order of child support. The modified order of commitment dated February 14, 2019, upon confirmation of the determination that the father willfully violated a prior order of child support, committed the father to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $7,500. ORDERED that the order dated September 10, 2018, is affirmed, without costs or disbursements; and it is further, ORDERED that the appeal from so much of the modified order of commitment as committed the father to the custody of the New York City Department of Correction for a period of six months is dismissed, without costs or disbursements, as the period of incarceration has expired (see Matter of Konig v Fabrizio, 176 AD3d 1066); and it is further, ORDERED that the modified order of commitment is affirmed insofar as reviewed, without costs or disbursements. The mother, the custodial parent of the parties' two children, commenced this proceeding alleging that the father was in willful violation of an order of child support dated August 4, 2016, obligating him to pay the sum of $924 per month for the support of the parties' two children. On April 23, 2018, after a hearing, the Support Magistrate issued findings of fact and an order of disposition, finding that the father was in willful violation of the prior order of child support. The father then filed objections and by order dated June 22, 2018, the Family Court confirmed the willfulness finding but remitted the matter to the Support Magistrate for certain issues, permitting [*2]the father to file further objections once again after said remittal. On July 18, 2018, the Support Magistrate issued amended findings of fact. The father filed objections again and by order dated September 10, 2018, the Family Court denied his objections. In a modified order of commitment dated February 14, 2019, the father was committed to the custody of the New York City Department of Correction for a period of six months unless he paid the purge amount of $7,500. The father appeals. We agree with the Family Court's confirmation of the Support Magistrate's finding that the father did not satisfy his burden of showing an inability to pay that would defeat the mother's prima facie case of willful violation (see Matter of Martin v Claesgens, 165 AD3d 1392; Matter of Schad v Schad, 158 AD3d 705). The father's remaining contentions are without merit. CHAMBERS, J.P., LEVENTHAL, DUFFY and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:14:03.121043+00

http://www.tsc.state.tn.us/sites/default/files/begtrup.armin_.opn_.pdf

12/02/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE September 15, 2020 Session STATE OF TENNESSEE v. ARMIN LARS BEGTRUP Appeal from the Criminal Court for Davidson County No. 2016-C-1905 Mark J. Fishburn, Judge ___________________________________ No. M2019-02038-CCA-R3-CD ___________________________________ Defendant, Armin Lars Begtrup, was found guilty after a jury trial of two counts of aggravated perjury. He was sentenced to three and one-half years of supervised probation. The trial court granted judicial diversion. Defendant timely filed a motion for new trial which the trial court denied. On appeal, Defendant argues that the trial court violated his right to a unanimous verdict and that the evidence is not sufficient to sustain his convictions. After a thorough review, we dismiss the appeal because we lack jurisdiction to consider the issues. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, J. joined. ROBERT W. WEDEMEYER, J., filed a separate concurring opinion. Bernie McEvoy (at trial) and Patrick McNally (on appeal), Nashville, Tennessee, for the appellant, Armin Lars Begtrup. Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald and Sasha Beatty, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION Facts and Procedural Background Defendant was indicted by the Davidson County Grand Jury on September 19, 2016 of two counts of aggravated perjury. Jennifer LeBlanc, Defendant’s ex-wife, appeared before the grand jury in her capacity as a private citizen and offered testimony to support the charges. At trial, Ms. LeBlanc stated that on May 15, 2014, she was notified that an order of protection had been filed against her. Ms. LeBlanc contacted her attorney and turned herself in to be booked and released. At the time Ms. LeBlanc turned herself in, she was several months pregnant. To support the order of protection, Defendant signed an affidavit of domestic assault in which he claimed that Ms. LeBlanc “appeared [at their child’s school] and charged towards [him], swinging her fists and screaming that she was going to punch me in the face, over and over.” Ms. LeBlanc denied that she was removed from the premises by other parents at the school. Ms. LeBlanc denied that a security guard stationed at the school came between her and Defendant. She sued Defendant in December 2014 to “recoup some of the losses from the tens of thousands of dollars [Defendant] has caused me to spend.” Ms. LeBlanc admitted that she was very upset with Defendant for being ninety- minutes late to pick up their child. On cross examination Ms. LeBlanc testified that she told Defendant, “I’m so mad, I could punch you in the face right now.” Ms. LeBlanc testified that she was contacted by the producers of the Judge Judy show. She explained that she was willing to appear on the show, but Defendant declined. Ms. LeBlanc testified that after Defendant declined to appear on Judge Judy, she filed a contempt petition against him in circuit court. Because nothing happened with the contempt petition, Ms. LeBlanc pursued perjury charges against the Defendant with the police and Davidson County District Attorney’s Office. The police declined to investigate, and the district attorney told her they would not bring charges against Defendant for two reasons: (1) they did not want to discourage victims of domestic violence from coming forward, and (2) they only prosecuted perjury cases where there were two different lies told under oath. Ms. LeBlanc obtained permission to appear before the Davidson County Grand Jury as a private citizen to seek an indictment against Defendant. On cross examination, Ms. LeBlanc stated that if she moved, Defendant would “simply have more time at [h]olidays.” Ms. LeBlanc stated: [She] want[ed] [Defendant] to be convicted of perjury because he is a perjurer, and every court case we go to now, and ten years ago, and for the next ten years, the Judge will have to know [Defendant] is a perjurer because he is. That’s why [she] want[ed] him convicted of a felony. -2-  Ms. LeBlanc testified that she has told people that she hated Defendant and that Defendant “had ruined a good portion” of her life. She stated that she may have called Defendant inappropriate names in the presence of their child, S.B.1 Ms. LeBlanc acknowledged that Defendant helped coach S.B.’s basketball team. She denied that she contacted Defendant’s employer or media outlets in order to get Defendant fired from his job. Bakari King testified that he did not witness the event. Brandy Turner-King testified that Ms. LeBlanc appeared to be very upset and angry but did not witness Ms. LeBlanc swing her arms or scream at Defendant. Mr. Poole saw Defendant enter the gymnasium and have an exchange with Ms. LeBlanc in front of the bleachers. He did not see S.B. jump into Defendant’s arms. He did not see Ms. LeBlanc pursue Defendant or swing her arms. Mr. Poole did not hear Ms. LeBlanc say that she would punch Defendant. Officer Steven Popp, the security guard on duty at S.B.’s school, recalled that Defendant seemed upset and was trying to locate his daughter. Officer Popp testified that he did not have to place himself between Defendant and Ms. LeBlanc. He acknowledged that he did not hear the exchange between Defendant and Mr. LeBlanc, but told Defendant that because no assault occurred there was no need to create a police report. Officer Popp told Defendant to call the non-emergency number to pursue the matter further. Office Popp instructed Ms. LeBlanc to wait a minute so Defendant could leave. Ms. Barnett witnessed nothing out of the ordinary between Defendant and Ms. LeBlanc. She did not recall hearing angry voices or shouting. Ms. Barnett did not see Ms. LeBlanc swing her arms at Defendant. Ms. Barnett testified that she was not “paying particular attention to what [Defendant and Ms. LeBlanc] were saying” and “[i]t’s been so long, and all of this, I just don’t know.” S.B. heard Ms. LeBlanc say she hated Defendant and use foul language to describe Defendant. S.B. testified that she had never heard Defendant use derogatory names in association with Ms. LeBlanc. S.B. remembered the day she went to the international fair at school. When she saw Defendant from her seat on the bleachers, S.B. went down to give him a hug. S.B. stated that Ms. LeBlanc then “walked down to us, and pulled her fist up and said that she was going to punch him in the face.” S.B. testified that Ms. LeBlanc had an angry tone to her voice and an angry look on her face. S.B. testified that Ms. LeBlanc followed her and 1 To protect privacy, we have chosen to refer to the minor child by initials. -3- Defendant, Ms. LeBlanc continued yelling in a loud voice that she was going to punch Defendant. Dr. David McMillan testified that he performed an evaluation in November 2015 that concerned Ms. LeBlanc’s desire to move with S.B. to Colorado. Dr. McMillan testified that he evaluated S.B. to determine whether it was in her best interest to move. Dr. McMillan recalled that S.B. told him about the events of February 2014. Dr. McMillan stated that S.B. remembered Ms. LeBlanc was very angry that Defendant was late to pick her up and that Ms. LeBlanc “was yelling and screaming, and [S.B.] was afraid that [Ms. LeBlanc] was going to hit her father and hurt him.” Dr. McMillan recalled S.B. stating that Ms. LeBlanc had threatened to punch Defendant. Ms. Jennifer Ball, Defendant’s girlfriend, testified that she rode with Defendant to pick up S.B. on February 28, 2014. She waited in the car while Defendant went in the school to find S.B. Ms. Ball stated that upon exiting the school, S.B. was “agitated or upset.” S.B. got into the back seat of the car and told Ms. Ball that “mommy said she was going to punch daddy in the face.” Ms. Ball recalled that after they left the school, they met some friends for dinner, and Defendant met outside to speak with the police. Ms. Ball did not recall Defendant making a 9-1-1 call. After deliberations, the jury found Defendant guilty as charged on both counts. At the sentencing hearing Defendant requested a ruling on a thirteenth juror motion. The trial court stated that it believed the most credible witness during the trial was S.B. The trial court took the issue under advisement and later denied the motion. Ms. LeBlanc testified at the sentencing hearing. She stated that this was not the first time Defendant perjured himself but that this was the first time that she was able to find a route to prosecute him. Ms. LeBlanc stated that Defendant lied so many times under oath that she was able to establish primary parenting to S.B. Ms. LeBlanc testified that in 2016, she was awarded attorney fees for the order of protection hearing. She stated that Defendant called the police on her so many times that she had lost count. Other than the award of attorney fees, Defendant suffered no repercussions for his “abuse of the justice system.” Ms. LeBlanc stated that she “received nothing but lies and subterfuge from [Defendant] regarding anything and everything to do with [S.B.]. Ms. LeBlanc testified that Defendant “[maintained] such a cloak of secrecy that [she] often did not know when and if [S.B.] would be out of town or if [S.B.] [would] be able to attend extracurriculars.” Ms. LeBlanc requested the trial court to order Defendant to sign S.B.’s passport application so S.B. could attend a class trip. Defendant prepared and presented a judicial diversion certificate. John Daniels testified on behalf of Defendant. Mr. Daniels recounted that Defendant was his teacher -4- and helped him turn his life around. Defendant encouraged Mr. Daniels to attend college and expand his outlook on life. Mr. Daniels stated that Defendant had a great impact to the community. Rebecca St. Clair testified that she had known Defendant since 2008. Ms. St. Clair described Defendant as “smart, energetic, and giving.” She stated that Defendant realized his love of teaching while S.B. was learning to play chess. Ms. St. Clair testified that she knew S.B. and that Defendant had a great relationship with S.B. Defendant testified that he loved learning and wanted to “give back to a world that [he] had prospered in” so he sought out a teaching opportunity. He began by helping with an after-school program then by tutoring students at Maplewood High School. From there he moved to Maury County Public Schools and became the S.T.E.M. director for Mount Pleasant High School. Defendant stated that he was “scared that a criminal conviction [would] be used to diminish [his] time with [his] daughter.” Defendant was scared of losing his teaching position and the opportunity to serve his students. The trial court found Defendant to be an especially mitigated offender. The trial court stated: [Defendant’s sentence] would be one point eight years. That sentence is obviously suspended. [Defendant] will be placed on supervised probation under the provisions of [Tennessee Code Annotated section] 40-35-313 for a period of three years and six months. If at the conclusion of the first one year – one point eight years, it can be established to the satisfaction of the [c]ourt by a preponderance of the evidence, . . . , then the [c]ourt will entertain converting this to unsupervised probation, if things are going really well, to even terminate.” The trial court granted Defendant’s request for judicial diversion. Defendant filed a timely motion for new trial and the trial court denied the motion. It is from the denial of that motion that Defendant now appeals. Analysis Defendant argues that the trial court failed to take precautions to ensure Defendant’s right to a unanimous verdict. Defendant also argues that the evidence is not sufficient to sustain his conviction. Defendant further argues that he has a right of appeal even though no judgment of conviction was entered. The State argues that Defendant does not have a right to appeal because he was granted judicial diversion. In the alternative, the State argues that Defendant has waived review of his claim regarding his -5- right to a unanimous verdict and that Defendant has not established that a clear and unequivocal rule of law was breached to require plain error review. The State further argues that the evidence is sufficient to sustain Defendant’s conviction. We agree with the State that we must dismiss the appeal for lack of jurisdiction. “Judicial diversion is a form of ‘legislative largess’ available to qualified defendants who have entered a guilty or nolo contendere plea or have been found guilty of an offense without the entry of a judgment of guilt.” State v. King, 432 S.W.3d 316 , 323 (Tenn. 2014). In State v. Norris, this Court held that judicial diversion provides a defendant with a self-determined chance to emerge from legal proceedings without a conviction on his record. 47 S.W.3d 457 , 463 (Tenn. Crim. App. 2000). Judicial diversion is governed by Tennessee Code Annotated section 40-35-313. According to this section, the court, with the consent of the defendant, defers further proceedings and places the defendant on probation without entering a judgment of conviction. Norris, 47 S.W.3d at 461 ; T.C.A. § 40-35-313(a)(1)(A). “[A]n appeal may not be taken from an order of judicial diversion because an order of diversion neither results in a judgment of conviction, nor any of the orders articulated in Tennessee Rule of Criminal Procedure 37(b) or Tennessee Rule of Appellate Procedure 3(b).” State v. Thomas Pleas Watts, No. M2016-02551-CCA-R3-CD, 2017 WL 3149641 , at *1, (Tenn. Crim. App. July 25, 2017), no perm. app. filed. A final disposition of the case does not occur until either the defendant violates a condition of probation or the probation period ends. See T.C.A. §40- 35-313(a)(2). If the defendant is successful in completing probation, the charges are dismissed, “without court adjudication of guilt.” Id. Our Supreme Court has stated that Rule 3 limits appeals as of right to those that are expressly enumerated in the Rule. See State v. Lane, 254 S.W.3d 349 , 353 (Tenn. 2008). Tennessee Rule of Appellate Procedure 3(b) provides as follows: In criminal actions an appeal as of right by a defendant lies from any judgment of conviction entered by a trial court from which an appeal lies to the Supreme Court or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty or nolo contendere, if the defendant entered into a plea agreement but explicitly reserved the right to appeal a certified question of law dispositive of the case pursuant to and in compliance with the requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of Criminal Procedure, or if the defendant seeks review of the sentence and there was no plea agreement concerning the sentence, or if the issues presented for review were not waived as a matter of law by the plea of guilty or nolo contendere and if such issues are apparent from the record of the proceedings already had. The defendant may also appeal as of right from an order denying or revoking probation, an order or judgment -6-  entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure, from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding, and from a final order on a request for expunction. (emphasis added). Here, Defendant asked for, and the trial court granted, judicial diversion. Therefore, no judgment of conviction was entered. The right to appeal under Rule 3 “lies” only from a “judgment of conviction.” Accordingly, we conclude that this case must be dismissed for lack of jurisdiction. Defendant also argues that this Court “often treats an improperly filed Rule 3 appeal as a Rule 10 extraordinary appeal” and requests that we do so in this case. See Tenn. R. App. P. 10(a). The State argues that an extraordinary appeal is not necessary for complete determination of the action on appeal. We agree with the State. Tennessee Rule of Appellate Procedure 10(a) states that: An extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules. The appellate court may issue whatever order is necessary to implement review under this rule. Defendant admits that neither issue “pigeonholes neatly into the Rule 10(a) stringent criteria.” If Defendant successfully completes judicial diversion, no judgment of conviction will be entered. See T.C.A. § 40-35-313(a)(1)(A). If Defendant fails to complete judicial diversion, a judgment of conviction will be entered, and Defendant will have the opportunity to appeal. See id. at (a)(2). Accordingly, we decline to convert Defendant’s appeal into an appeal by permission pursuant to Rule 10. Conclusion Based upon the record and the parties' briefs, the appeal is dismissed. ____________________________________ TIMOTHY L. EASTER, JUDGE -7-

2020-11-20 19:31:11.55046+00

George Emil Bernard and Betty Bernard v. Commissioner. Bernard v. Commissioner Docket No. 84863. United States Tax Court T.C. Memo 1962-116; 1962 Tax Ct. Memo LEXIS 193; 21 T.C.M. (CCH) 613; T.C.M. (RIA) 62116; May 16, 1962 *193 Leonard Bailin, Esq., 1472 Broadway, New York, N. Y., for the petitioners. Arthur S. O'Neill, Jr., Esq., for the respondent. MURDOCK Memorandum Findings of Fact and Opinion MURDOCK, Judge: The Commissioner determined a deficiency of $1,961.67 and an addition of $980.84 for fraud, in the income tax of the petitioners for 1957. He conceded at the trial that there was no fraud but alleged negligence. The issues for decision are 1. The amount of tips received by George; 2. Whether the petitioners furnished more than one-half of the support of a niece, and 3. Whether negligence is shown by the evidence in the record. Findings of Fact The petitioners, husband and wife, filed a joint return for 1957 with the district director for the Upper Manhattan District of New York. They reported therein total income of $6,342.82 consisting of salary of $3,745 for George and $1,597.82 for Betty and tips for George of $1,000. They claimed 6 exemptions, including one for a niece. The Commissioner, in determining the deficiency, increased George's tips to $9,362.50 and disallowed the exemption for the niece. George was employed during 1957 as a captain at the Stork Club*194 in New York City, where he was one of 20 captains. All tips received by captains there were placed in a box and divided equally among the 20 captains, every day or every other day. No record of the total tips was reported. The total tips received by George during 1957 was $1,500. The record fails to show that the petitioners furnished more than one-half of the support of the niece during 1957. $696 was received in Social Security payments for the support of the niece during 1957. The record fails to show that the petitioners were negligent in filing their return for 1957. Opinion The only evidence in regard to the tips George received is his own testimony from his own unaided recollection after a substantial lapse of time. We are satisfied that he did not receive the large amount determined by the Commissioner, but just how much he did receive is not so clear. The finding made is the best conclusion we can come to upon this record, having in mind . The evidence fails to overcome the determination of the Commissioner that the petitioners did not furnish over one-half of the support of the niece. Indeed it tends to support that*195 determination, taking into consideration the total income of the petitioners used in supporting 6 people and the amount received from Social Security for the support of the niece alone. The Commissioner has not sustained his burden of proof to show negligence. Decision will be entered under Rule 50.

2020-09-04 21:07:08.436619+00

http://www.ndcourts.gov/supreme-court/opinion/2020ND190

Filed 09/04/20 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2020 ND 190 Kylie Michelle Oversen, individually and in her capacity as Chairwoman of the Democratic-Non-Partisan League Party of North Dakota, and Jason Anderson, a candidate nominated by the Democratic -Non-Partisan League Party of North Dakota for the statewide elective office of North Dakota Insurance Commissioner, Petitioners v. Alvin Jaeger, in his capacity as North Dakota Secretary of State, Respondent No. 20200234 WRIT DENIED. Per Curiam. Justice VandeWalle filed a dissenting opinion. David C. Thompson, Grand Forks, ND, for petitioners. Matthew A. Sagsveen, Solicitor General, Office of the Attorney General, Bismarck, ND, for respondent.  Oversen, et al. v. Jaeger No. 20200234 Per Curiam. [¶1] Kylie Oversen, individually and as chairwoman of the Democratic-Non- Partisan League Party of North Dakota, and Jason Anderson, as a candidate nominated by the Democratic-Non-Partisan League Party of North Dakota for the statewide elective office of North Dakota Insurance Commissioner, petitioned this Court to exercise its original jurisdiction and issue a writ of mandamus directing Secretary of State Alvin Jaeger to accept and certify Anderson for inclusion on the November 3, 2020 general election ballot for the office of insurance commissioner. Oversen and Anderson argue there is a vacancy on the ballot for that position and Jaeger is required to place Anderson’s name on the ballot as the nominated and endorsed Democratic- NPL party candidate for the office under N.D.C.C. § 16.1-11-18(4). We conclude Jaeger correctly applied North Dakota law by refusing to include Anderson on the general election ballot. We deny the petition. I [¶2] This case stems from Berg v. Jaeger, 2020 ND 178 , __ N.W.2d __, and we will not repeat the facts except as necessary to resolve the issues raised in this petition. [¶3] On April 2, 2020, Travisia Jonette Minor, A/K/A Travisia Martin, filed an affidavit of candidacy, statement of interest, and certificate of endorsement with Jaeger requesting she be placed on the June 9, 2020 primary election ballot as a Democratic-NPL party candidate for North Dakota Insurance Commissioner. In the affidavit of candidacy, Martin certified she met the requirements to hold the office of insurance commissioner. Jaeger placed Martin on the primary election ballot as a Democratic-NPL party candidate for insurance commissioner. Martin won the Democratic-NPL primary and placement as the party’s candidate on the general election ballot. 1 [¶4] On July 9, 2020, Rick Berg, as a resident and elector of this state, and as chairman of the North Dakota Republican Party, petitioned this Court for a writ of mandamus directing Jaeger to remove Martin from the general election ballot. Berg argued Martin could not meet the constitutionally mandated five year residency requirement necessary to hold the office of insurance commissioner. [¶5] On August 26, 2020, this Court granted a writ of injunction restraining Jaeger from placing Martin’s name on the November 3, 2020 general election ballot. Berg, 2020 ND 178 , ¶ 31. We concluded N.D. Const. art. V, § 4 requires a person to have been a resident of this state for the five years preceding the election to be eligible to hold elective office in the executive branch. Id. at ¶ 11. We adopted the district court’s finding that Martin will not have been a North Dakota resident for the five years preceding the 2020 general election. Id. at ¶ 15. We held, “Martin is not eligible to hold the office of insurance commissioner, and it would be erroneous to place her name on the ballot. We therefore enjoin Jaeger from placing Martin’s name on the general election ballot.” Id. at ¶ 30. [¶6] On August 26, 2020, Jaeger sent Oversen an email explaining N.D.C.C. § 16.1-11-18(6)(d) states a vacancy occurs when a candidate “[c]eases to be qualified to serve, if elected, as otherwise provided by law[,]” the candidate must have been qualified at some earlier point but is no longer qualified, the Supreme Court determined Martin was not qualified when she was on the primary ballot, and therefore she cannot cease to be qualified and no vacancy exists according to law. He further stated the only way another candidate could be included on the ballot was if they submit a nominating petition to run as an independent candidate with at least 1,000 signatures and the candidacy paperwork before 4:00 p.m. on August 31, 2020. [¶7] On August 28, 2020, Oversen filed the Democratic-NPL Executive Committee’s certificate of cause of vacancy and nomination, stating Jaeger’s removal of Martin’s name from nomination created a vacancy on the general election ballot for the office of insurance commissioner and the committee was endorsing Jason Anderson as the substitute Democratic-NPL endorsed 2 candidate. She also submitted Anderson’s affidavit of candidacy, statement of interest, and the Democratic-NPL certificate of endorsement. [¶8] On August 31, 2020, Oversen submitted an updated certificate of cause of vacancy and nomination and other forms for Anderson’s candidacy. Jaeger has refused to place Anderson’s name on the general election ballot as the Democratic-NPL party candidate for insurance commissioner. Jaeger explained a political party may not fill a vacancy after the primary election unless one of four criteria listed in N.D.C.C. § 16.1-11-18(6) is satisfied. In this instance, the criteria at issue is N.D.C.C. § 16.1-11-18(6)(d) which states a vacancy may be filled when a candidate “[c]eases to be qualified to serve, if elected, as otherwise provided by law.” Jaeger asserts the candidate must have been initially qualified and subsequently cease to be qualified. He contends that our determination in Berg establishes that Martin was not qualified when she was on the primary ballot and as a result she cannot cease to be qualified. On August 31, 2020, Oversen and Anderson petitioned this Court for a writ of mandamus to compel Jaeger to accept and certify Democratic-NPL party insurance commissioner candidate Anderson for inclusion on the November 3, 2020 general election ballot. II [¶9] Article VI, § 2, of the North Dakota Constitution gives this Court the authority to issue, hear, and determine original and remedial writs as may be necessary to properly exercise its jurisdiction. This Court’s authority is discretionary and we will determine for ourselves whether to exercise our jurisdiction. Bolinske v. Jaeger, 2008 ND 180 , ¶ 4, 756 N.W.2d 336 . “[T]he power to exercise our original jurisdiction extends only to those cases where the questions presented are publici juris and affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people.” Berg, 2020 ND 178 , ¶ 7 (quoting Riemers v. Jaeger, 2018 ND 192 , ¶ 5, 916 N.W.2d 113 ). “The interest of the state must be primary, not incidental, and the public must have an interest or right that is affected.” Berg, at ¶ 7 (quoting Riemers, at ¶ 5). 3 [¶10] A writ of mandamus may be issued to compel the performance of an act which the law specifically requires a state official to perform. N.D.C.C. § 32- 34-01. “A petitioner for a writ of mandamus must show a clear legal right to performance of the act sought to be compelled and must establish no plain, speedy, and adequate remedy exists in the ordinary course of law.” Berg, 2020 ND 178 , ¶ 9 (quoting Riemers, 2018 ND 192 , ¶ 7). The law must require an act to be done to be enforceable by mandamus. Berg, at ¶ 9. III [¶11] Oversen and Anderson argue N.D.C.C. § 16.1-11-18(4) requires Jaeger to place Anderson on the ballot as the Democratic-NPL endorsed candidate because they complied with statutory requirements. They claim once Oversen submitted the certificate of cause of vacancy and nomination, Jaeger did not have discretion to refuse to certify the new nomination. They further assert Jaeger wrongfully refused to certify the replacement nomination by erroneously interpreting N.D.C.C. § 16.1-11-18(6)(d). [¶12] Our primary goal in interpreting statutes is to determine the legislature’s intent. Laufer v. Doe, 2020 ND 159 , ¶ 11, 946 N.W.2d 707 . We look at the plain language of the statute and give each word its plain, ordinary, and commonly understood meaning, unless it is specifically defined. N.D.C.C. § 1- 02-02. Statutes must be construed as a whole to determine the legislature’s intent and are harmonized to give meaning to related provisions. Jangula v. N.D. Dep’t. of Transp., 2016 ND 116 , ¶ 11, 881 N.W.2d 639 . Under N.D.C.C. § 1-02-07, a specific provision in a statute controls a general provision if the two conflict and cannot be reconciled. See Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC, 2018 ND 96 , ¶ 11, 909 N.W.2d 671 . “We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.” Laufer, at ¶ 11 (citation omitted). [¶13] Section 16.1-11-18, N.D.C.C., governs the filling of a vacancy that occurs in a nomination for a party office, stating: 4  4. If a vacancy occurs in a slate of statewide candidates after the candidates have been nominated at the primary election, the proper state executive committee may fill any vacancy by filing a certificate of nomination with the secretary of state. The chairman and secretary of the committee shall make and file with the secretary of state a certificate setting forth the cause of the vacancy, the name of the person for whom the new nominee is to be substituted, the fact that the committee was authorized to fill vacancies, and any further information as may be required to be given in an original certificate of nomination. When such a certificate is filed, the secretary of state shall certify the new nomination and the name of the person who has been nominated to fill the vacancy in place of the original nominee to the various auditors. If the secretary of state already has forwarded the certificate, the secretary of state forthwith shall certify to the auditors the name and address of the new nominee, the office the new nominee is nominated for, the party or political principle the new nominee represents, and the name of the person for whom the new nominee is substituting. Failure to publish the name of a new nominee does not invalidate the election. .... 6. A vacancy in a nomination following a primary election may not be filled according to subsection 4 or 5 unless the nominated candidate: a. Dies; b. Would be unable to serve, if elected, as a result of a debilitating illness; c. Ceases to be a resident of the state or an individual nominated for legislative office will not be a resident of the legislative district at the time of the election; or d. Ceases to be qualified to serve, if elected, as otherwise provided by law. Vacancies to be filled according to the provisions of this section may be filled not later than the sixty-fourth day prior to the election. [¶14] Section 16.1-11-18(4), N.D.C.C., states a political party executive committee may fill any vacancy in a slate of statewide candidates, if a vacancy occurs after the candidates have been nominated at the primary election, by 5 filing a certificate of nomination with the secretary of state. The statute further provides the secretary of state shall certify the new nomination and the name of the person who has been nominated to fill the vacancy in place of the original nominee to the various auditors after the certificate of nomination has been filed. However, N.D.C.C. § 16.1-11-18(4) must be read together with N.D.C.C. § 16.1-11-18(6), which defines four circumstances under which a vacancy may be filled under subsection 4. We conclude Jaeger was not required to place Anderson’s name on the general election ballot without considering whether one of the circumstances under N.D.C.C. § 16.1-11-18(6) applies. [¶15] For purposes of this petition we assume without deciding a vacancy exists. Oversen and Anderson do not argue any of the provisions under N.D.C.C. § 16.1-11-18(6) apply other than subsection (6)(d). As noted above, subsection (6)(d) provides a vacancy in a nomination following a primary election may not be filled unless the nominated candidate “[c]eases to be qualified to serve, if elected, as otherwise provided by law.” [¶16] Oversen and Anderson argue that this Court held Martin was not eligible, and that we did not hold that she was not qualified. They contend Martin was “qualified” by Jaeger as a candidate for the office of insurance commissioner when she was placed on the primary ballot, and she ceased to be qualified for that office by virtue of this Court’s decision in Berg, 2020 ND 178 . [¶17] The words “cease” and “qualified” are not defined in the statute. When a word is not defined in the code, it is to be given its ordinary meaning. N.D.C.C. §§ 1-02-02 and -03. “Cease” is defined as “[t]o stop; to become extinct; to pass away; to come to an end; to suspend or forfeit. A cessation of activity.” Black’s Law Dictionary 202 (5th ed. 1979). “Qualified” is defined as “having complied with the specific requirements or precedent conditions (as for an office or employment): ELIGIBLE[.]” Webster’s Ninth New Collegiate Dictionary 963 (9th ed. 1988). See also Black’s Law Dictionary 1116-17 (5th ed. 1979) (defining “qualified” as “Adapted; fitted; entitled; susceptible; capable; competent; fitting; possessing legal power or capacity; eligible; as a ‘qualified voter’ (q.v.)” and defining “qualification” as “The possession by an individual of the 6 qualities, properties, or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function.”). [¶18] In Berg, 2020 ND 178 , ¶¶ 11, 15, 30, this Court held candidates seeking an elected office in the executive branch must have been a resident of this state for the five years preceding the election to office to be eligible, Martin will not have been a resident for the five years preceding the 2020 general election, and therefore she is not eligible to hold the office of insurance commissioner. Martin was not a resident for the required length of time, and therefore she was never eligible for the office. Martin never possessed the necessary qualifications to hold the office of insurance commissioner in this state. The ordinary meaning of “ceases to be qualified” requires that the candidate was once qualified and later stopped being qualified. Because Martin was never qualified to serve, the vacancy may not be filled under N.D.C.C. § 16.1-11-18(6)(d). [¶19] Oversen and Anderson contend the above analysis improperly equates eligibility to hold office with qualification for the office. They contend our decision in Berg was limited to determining Martin’s eligibility for office and qualification for the office was independently established by Jaeger placing Martin on the primary ballot. This contention ignores the full text of N.D.C.C. § 16.1-11-18(6)(d) which provides “[c]eases to be qualified to serve, if elected, as otherwise provided by law.” The statute is unambiguous and the use of the term qualified is associated with eligibility through the use of the phrase “to serve.” The term qualified in subdivision (d) cannot be separated from the reference “to serve.” Here, we conclude the reference to “qualified to serve” in subdivision (d) is synonymous with “eligible to hold.” [¶20] Jaeger did not have a duty to place Anderson on the general election ballot for the office of insurance commissioner because none of the circumstances listed in N.D.C.C. § 16.1-11-18(6) apply. Oversen and Anderson have not demonstrated they are entitled to a writ of mandamus. 7  IV [¶21] We deny the petition for a writ of mandamus. [¶22] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte VandeWalle, Justice, dissenting. [¶23] I respectfully dissent. Section 16.1-11-18(6)(d), N.D.C.C., provides a vacancy can be filled if a candidate “[c]eases to be qualified to serve, if elected, as otherwise provided by law.” I believe the use of the term qualified in subdivision (6)(d) is ambiguous and a reasonable interpretation is that Martin was qualified when she was placed on the primary ballot by the Secretary of State. She subsequently ceased to be qualified when we determined she was not eligible to hold the office of insurance commissioner in our prior case. I would err on the side of placing a candidate’s name on the ballot when ambiguity exists in a statute. Therefore, I dissent. [¶24] Gerald W. VandeWalle 8

2020-09-04 21:10:43.807527+00

http://www.tsc.state.tn.us/sites/default/files/warlick.james_.opn_.pdf

09/04/2020 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs August 3, 2020 JAMES WARLICK EX REL. JO ANN WARLICK V. LINDA KIRKLAND Appeal from the Chancery Court for Marshall County No. 18608 J. B. Cox, Chancellor No. M2019-01576-COA-R3-CV This is an action to set aside a quitclaim deed. In the Complaint for a Declaratory Judgment, the attorney-in-fact for the plaintiff alleges that the plaintiff was not competent to execute the quitclaim deed, that she did not intend to convey title to the property, and she did not receive consideration for the conveyance. At the conclusion of the plaintiff’s case-in-chief and upon the motion of the defendant, the court directed a verdict in favor of the defendant. The court found, inter alia, there was no competent evidence to support the allegations that the plaintiff was not competent to execute the quitclaim deed, that fraud occurred, or that a fiduciary duty owed to the plaintiff was breached, and there was no proof presented that the parties lacked a meeting of the minds. This appeal followed. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which John W. McClarty and Arnold B. Goldin, JJ., joined. Seamus T. Kelly and David J. Goldman, Nashville, Tennessee, for the appellant, Jo Ann Warlick. Jason C. Davis, Lewisburg, Tennessee, for the appellee, Linda Kirkland. OPINION This action was initiated by James Warlick on behalf of his mother, Jo Ann Warlick (individually “Mrs. Warlick” and collectively “Plaintiff”), in his capacity as her attorney- in-fact. The defendant, Linda Kirkland (“Ms. Kirkland”), has been a family friend for years. The relevant facts and proceedings in the trial court are summarized as follows. The property at issue is a parcel of land on River Road in Lewisburg, Tennessee (“the Property”), where James and his girlfriend had resided as tenants in a trailer home since 2012. Upon learning the Property had been foreclosed and was to be auctioned, Mrs. Warlick contacted David Delk (“Mr. Delk”) with First Commerce Bank in Chapel Hill, Tennessee (the “Bank”) about obtaining a loan to purchase the Property. Upon being advised by Mr. Delk that she did not qualify for a loan without a qualified cosigner, Mrs. Warlick asked her family friend, Ms. Kirkland, to act as a cosigner. Ms. Kirkland agreed. After Ms. Kirkland and Mrs. Warlick signed the requisite loan documents, Ms. Warlick used the loan proceeds to acquire title to the Property in her name only.1 Because the Property was purchased by Mrs. Warlick for James and his girlfriend to reside on the Property, James made the monthly payments on the loan to the Bank in lieu of paying rent to his mother. After James incurred expenses in a legal battle regarding a water line to the Property, he asked his mother for an additional $2,000.00. Because Mrs. Warlick did not have the necessary funds, she refinanced and extended the initial loan so James could pay his financial obligations. Once again, it was necessary that Ms. Kirkland co-sign the note for Mrs. Warlick to refinance. Upon completion of the loan transaction, Mrs. Warlick gave James $2,000.00 so he could pay his financial obligations. In September of 2016, James informed his mother that he needed an additional $10,000.00. To fund his needs, James and Mrs. Warlick approached the Bank to increase the current loan or obtain yet another loan. Mr. Delk informed them that the Bank could not extend or increase the loan because the increased amount would exceed the purchase price of the Property. Moreover, Mr. Delk informed them that the Bank would not refinance the loan unless Ms. Kirkland’s name was on the deed, the loan was secured by the Property, and Ms. Kirkland signed the new note as an obligor. Realizing the increased debt would exceed the purchase price of the Property and that Ms. Kirkland would be obligated for the debt, Mrs. Warlick agreed to convey the Property to Ms. Kirkland in consideration for Mrs. Warlick receiving $10,000.00 from the refinance, of which she would give $5,000.00 to James.2 Mr. Delk facilitated the preparation of the paperwork for the loan transaction and the quitclaim deed. Mrs. Warlick, James, and Ms. Kirkland were all present at the Bank when the final details were discussed and the loan documents and quitclaim deed were executed. The closing occurred on October 18, 2016. As a result of the closing, Mrs. Warlick was released from any obligation on the loans, Ms. Kirkland became the sole obligor, and title to the Property was placed solely in the name of Ms. Kirkland. 1 Ms. Kirkland was not on the deed, she was merely a co-signer on the note. Moreover, the loan documents contained no record of collateral for the loan. 2 James Warlick testified that he needed the money to have a “little bit of a cushion” because he was waiting to hear from the disability board about his application for disability benefits. -2-  James and his girlfriend continued living in the trailer on the Property and paid rent to Ms. Kirkland—albeit sporadically—for approximately two years. Following too many missed rent payments and empty promises to catch up, Ms. Kirkland sent an eviction notice to James in August 2018. James responded by commencing this action on behalf of his mother, Mrs. Warlick. The complaint alleges that Mrs. Warlick was not competent when she executed the quitclaim deed; it also alleges that she did not intend to transfer title to the Property and that she received no consideration for the transfer. The case was tried without a jury. Following Plaintiff’s case-in-chief, Ms. Kirkland moved for a directed verdict, which the trial court granted. The court’s order reveals that three witnesses testified during Plaintiff’s case-in-chief, James Warlick, Dr. Timothy Nash, and Brook Rutherford. Potential witnesses who were not called to testify included Mrs. Warlick, Ms. Kirkland, and David Delk. The final order reads in pertinent part: Based upon the arguments of counsel, testimony of the Plaintiff, by and through her Power of Attorney, James Warlick, testimony of witnesses on behalf of the Plaintiff [Dr. Timothy Nash and Brook Rutherford], and the entire record in this matter, the Court makes the following finding of facts: . . . 1. That the testimony of Dr. Timothy Nash, expert medical witness for the Plaintiff, was credible and did assist the Court in making a determination with regards to the competency of the Plaintiff, Jo Ann Warlick. 2. That Dr. Timothy Nash was unable to say with any degree of medical certainty whether or not the Plaintiff, Jo Ann Warlick, was competent on October 18, 2016, the date that the quitclaim deed was executed in this matter. Dr. Nash did not treat the Plaintiff at any time relevant to the date and time in question before the Court and only treated the Plaintiff one time in April of 2019, some three (3) years after the signing of the quitclaim deed. 3. That based on the testimony of Dr. Nash and the medical records entered into evidence at trial, it is clear to the Court that Ms. Jo Ann Warlick was competent on October 18, 2016, the date and time of the execution of the quitclaim deed. 4. That Plaintiff failed to meet [her] burden of proof with regards to [her] claim of fraud as there was no evidence of any fraud or wrongdoing on the part of the Defendant, Linda Kirkland, presented at trial. -3-  5. That the evidence presented at trial primarily focused on the Defendant providing food and gifts to the Plaintiff’s son and Power of Attorney, James Warlick. The Court finds that this behavior is more in line of that of a good neighbor and does not rise to the level of fraud. Further, the proof was absent with evidence of any behavior or actions on the part of the Defendant being directed towards the Plaintiff, Jo Ann Warlick. 6. That it is particularly interesting and of great note to the Court that the Plaintiff did not call the Defendant as a witness in this matter. 7. That Plaintiff failed to prove that there was any breach of fiduciary duty in this matter by First Commerce Bank or David Delk, Loan Officer for First Commerce Bank to Plaintiff, Jo Ann Warlick. 8. That it is particularly interesting and of great note to the Court that the Plaintiff did not call David Delk as a witness in this matter or name First Commerce Bank as a party to this lawsuit. 9. That Plaintiff was unable to put any evidence on the record or submit any proof to the Court with regards to the banking standards, procedures, and duties owed by First Commerce Bank and David Delk to the Plaintiff as Plaintiff’s expert witness for this purpose, Brook Rutherford, was unable to be qualified as an expert witness after his admission on the stand and in open court that he did not deal in commercial loans and could not testify about the policies, procedures, or duties owed to a client in a commercial loan. 10. That the testimony of Brook Rutherford was disallowed and not considered by the Court in reaching a conclusion at law in this matter. 11. That Plaintiff failed to meet her burden of proof in this matter at the close of her case-in-chief as there was no evidence that the Plaintiff was not competent on October 18, 2016, that any fraud had taken place, that any fiduciary duty that may have been owed to the Plaintiff had been breached, and no proof presented that there lacked a meeting of minds of the parties. THEREFORE, Defendant’s Rule 50.01 Motion for Directed Verdict is granted and Defendant Linda Kirkland is found to be the lawful and rightful owner of the property located at 1300 River Road, Lewisburg, Tennessee 37091 pursuant to the quitclaim deed that was executed on October 18, 2016 transferring said property from Plaintiff, Jo Ann Warlick, to Defendant, Linda Kirkland. -4-  This appeal followed. ANALYSIS Plaintiff contends the trial court erred in excluding expert medical evidence regarding Mrs. Warlick’s mental fitness and expert testimony regarding loan transactions. Plaintiff also contends the trial court erred in granting a directed verdict based on its finding that Plaintiff failed to carry her burden of proof. We will discuss each issue in turn. I. EXPERT TESTIMONY “We review the trial court’s decision to admit or exclude evidence by an abuse of discretion standard.” Biscan v. Brown, 160 S.W.3d 462 , 468 (Tenn. 2005) (citing Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121 , 131 (Tenn. 2004)). The decision to reject evidence is based on the relevance of the proffered evidence under the Tennessee Rules of Evidence 401 and 402. State v. DuBose, 953 S.W.2d 649 , 653 (Tenn. 1997). Evidence is relevant and admissible if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Biscan, 160 S.W.3d at 468 (quoting Tenn. R. Evid. 401). A. Mental Fitness Plaintiff erroneously contends the trial court erred by “excluding” the expert testimony of Dr. Timothy Nash. Contrary to this contention, the court found Dr. Nash to be a competent and credible witness who assisted the trial court “in making a determination with regards to the competency of the Plaintiff, Jo Ann Warlick.” However, the trial court found that some of the evidence Plaintiff proffered was not relevant to the question of Mrs. Warlick’s competence when the quitclaim deed was executed in 2016. “A deed is valid only if it is the product of the grantor’s conscious, voluntary act.” Fell v. Rambo, 36 S.W.3d 837 , 846 (Tenn. Ct. App. 2000). Conversely, “a deed is void if, at the time of its execution, the grantor was mentally unbalanced, without intelligent comprehension of the act being performed, and incapable of transacting.” Id. (citations omitted) (emphasis added). “A party seeking to rescind a conveyance because of mental incapacity has the burden of proof.” Id. (citing Williamson v. Upchurch, 768 S.W.2d 265 , 269 (Tenn. Ct. App. 1988). Thus, it was incumbent on Plaintiff to present relevant and competent evidence to the issue of competency at the time of the execution of the quitclaim deed. Specific to the issue of Mrs. Warlick’s competency on the day she executed the quitclaim deed, the trial court found: -5-  2. That Dr. Timothy Nash was unable to say with any degree of medical certainty whether or not the Plaintiff, Jo Ann Warlick, was competent on October 18, 2016, the date that the quitclaim deed was executed in this matter. Dr. Nash did not treat the Plaintiff at any time relevant to the date and time in question before the Court and only treated the Plaintiff one time in April of 2019, some three (3) years after the signing of the quitclaim deed. As noted above, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Biscan, 160 S.W.3d at 468 (quoting Tenn. R. Evid. 401). The admission or exclusion of evidence is within the trial court’s discretion. White v. Vanderbilt Univ., 21 S.W.3d 215 , 222 (Tenn. Ct. App. 1999) (citations omitted). The decision to admit or exclude evidence is subject to three determinations on review: (1) whether the factual basis for the decision is supported by the evidence, (2) whether the trial court identified and applied the applicable legal principles, and (3) whether the trial court’s decision is within the range of acceptable alternatives. Id. at 223 (citing BIF v. Service Constr. Co ., No. 87-136-II, 1988 WL 72409 , at *2 (Tenn. Ct. App. July 13, 1988)). Further, “[a]ppellate courts should permit a discretionary decision to stand if reasonable judicial minds can differ concerning its soundness.” Id. (citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694 , 709 (Tenn. Ct. App. 1999)). As the trial court correctly noted, Dr. Nash did not treat Mrs. Warlick at any time relevant to the execution of the 2016 quitclaim deed. Moreover, he treated Mrs. Warlick only one time thereafter, in April of 2019, three years after the deed was signed. Thus, the record reveals that the trial court took the applicable law into account and made a discretionary decision consistent with the facts before the court. Accordingly, we affirm the trial court’s decision on this issue. B. Commercial Loan Plaintiff contends the trial court erred in excluding the testimony of Brook Rutherford based on its finding that Mr. Rutherford was not qualified to testify as an expert witness concerning commercial loan transactions such as the one at issue. A trial court’s first concern when assessing the admissibility of expert testimony is “whether the witness is qualified by knowledge, skill, experience, training, or education to express an opinion within the limits of his or her expertise.” State v. Scott, 275 S.W.3d 395 , 402 (Tenn. 2009) (citing State v. Stevens, 78 S.W.3d 817 , 834 (Tenn. 2002)). “This determination hinges upon whether the proposed expert’s qualifications authorize him or -6- her to give an informed opinion upon the fact or issue for which his or her testimony is being proffered.” Id. (citing Stevens, 78 S.W.3d at 834). Essentially, the court must ask “whether the witness is an expert, either through knowledge, skill, experience, training, or education, in the area in which he or she is providing testimony.” Id. (citing Tenn. R. Evid. 702). During Plaintiff’s case-in-chief, she called Mr. Rutherford as an expert witness on banking and loan transactions. Mr. Rutherford testified that he had significant experience in banking but was not familiar with First Commerce Bank or its policies and procedures. When questioned by the trial court, Mr. Rutherford stated that he only handled “personal loans” and he did not process “commercial loans.” He also admitted that he was not trained in commercial loans. Based on the admissions by Mr. Rutherford and because the loan at issue was “a commercial loan,” the trial court ruled that Mr. Rutherford was not qualified to testify as an expert witness concerning the loan at issue. The court also ruled that his testimony relating to the loan would be stricken. Plaintiff called no other witnesses to testify about the propriety of the loan transaction. Finding no error with the trial court’s determination that Mr. Rutherford was not qualified by knowledge, skill, experience, training, or education to express an opinion concerning the loan transaction, we affirm the trial court’s decision on this issue. II. DIRECTED VERDICT Plaintiff contends the trial court erred in entering a directed verdict because there was ample evidence to support a finding the conveyance of the Property was not valid. We review a trial court’s decision to grant a directed verdict under the following standard: This Court reviews the trial court’s decision to grant a directed verdict de novo, applying the same standards as the trial court. Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815 , 819 (Tenn. 2003). We will affirm a directed verdict “only when the evidence in the case is susceptible to but one conclusion.” Childress v. Currie, 74 S.W.3d 324 , 328 (Tenn. 2002) (citing Eaton [v. McLain], 891 S.W.2d [587,] 590 [(Tenn. 1994)]). We must “take the strongest legitimate view of the evidence favoring the opponent of the motion,” and must accept all reasonable inferences in favor of the nonmoving party. Id. We may affirm the motion “only if, after assessing the evidence according to the foregoing standards, [we] determine[] that reasonable minds could not differ as to the conclusions to be drawn from the evidence.” Id. Biscan, 160 S.W.3d at 470 . -7-  Plaintiff asserted a claim of fraud. But, as the trial court correctly determined, “there was no evidence of any fraud or wrongdoing.” The evidence presented at trial primarily focused on Ms. Kirkland providing food and gifts to James Warlick. We agree with the court’s conclusion that this conduct was more in line with “that of a good neighbor and [did] not rise to the level of fraud.” We also agree that the evidence failed to show “any behavior or actions on the part of [Ms. Kirkland] being directed toward[] Plaintiff.” As the court did, we find “particularly interesting and of great note” that Plaintiff chose not to call Ms. Kirkland as a witness. Additionally, the trial court correctly determined that Plaintiff “failed to prove that there was any breach of fiduciary duty in this matter by First Commerce Bank or David Delk, Loan Officer for First Commerce Bank to Plaintiff.” In fact, we find a complete absence in the record of evidence to support this claim. Like the trial court, we also find it “particularly interesting and of great note . . . that the Plaintiff did not call David Delk as a witness in this matter or name First Commerce Bank as a party to this lawsuit.” As the trial court concluded, Plaintiff submitted no competent proof “with regards to the banking standards, procedures, and duties owed by First Commerce Bank and David Delk to the Plaintiff[.]” We have affirmed the trial court’s findings that Dr. Nash provided no competent evidence to support a finding that Mrs. Warlick lacked the requisite mental capacity to convey the Property to Ms. Kirkland in 2016 and that the testimony of Mr. Rutherford was excluded because he was not competent to testify as an expert witness concerning commercial loan transactions. Accordingly, we affirm the trial court’s findings that “Ms. Jo Ann Warlick was competent on October 18, 2016, the date and time of the execution of the quitclaim deed” and that there was no evidence “that any fraud had taken place, that any fiduciary duty that may have been owed to . . . Plaintiff had been breached, and no proof presented that there lacked a meeting of minds of the parties.” Accordingly, we affirm the decision to grant Ms. Kirkland’s motion for a directed verdict. IN CONCLUSION Therefore, we affirm the judgment of the trial court and remand with costs assessed against the appellant, James Warlick, as Power of Attorney for Jo Ann Warlick. ________________________________ FRANK G. CLEMENT JR., P.J., M.S. -8-

2020-09-04 21:07:09.46196+00

http://www.ndcourts.gov/supreme-court/opinion/2020ND189

Filed 8/31/20 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF NORTH DAKOTA 2020 ND 189 In the Matter of the Estate of Leo Grenz, Deceased Kelly Grenz, personal representative of the Estate of Leo Grenz, deceased, Petitioner and Appellant v. Donavin Grenz, David Grenz, Respondents and Appellees and Lee Atta Horner and Kelly Grenz, personal representative of the Estate of Sally Grenz, Respondents No. 20190363 Appeal from the District Court of Emmons County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge. AFFIRMED. Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justices VandeWalle and Crothers joined. Surrogate Judge Sandstrom filed a dissenting opinion. Timothy D. Lervick, Bismarck, N.D., for petitioner and appellant and respondent Kelly Grenz. Ronald H. McLean (argued) and Ian R. McLean (on brief), Fargo, N.D., for respondents and appellees Donavin Grenz and David Grenz.  Estate of Grenz No. 20190363 Tufte, Justice. Kelly Grenz, as personal representative of the Estate of Leo Grenz, appeals from orders and judgments partially invalidating the will of Leo Grenz. The district court invalidated a portion of the will resulting from undue influence and gave effect to a portion of a contingent distribution clause the court found was consistent with Leo Grenz’s testamentary intent. We affirm, concluding the court properly applied the equitable doctrine of partial invalidity. I Leo Grenz died testate. Leo and his second wife, Sally Grenz, had one child together, Kelly Grenz. Leo also had three children with his first wife: Donavin Grenz, David Grenz, and Lee Atta Horner. Leo Grenz was survived by Sally Grenz and all of his children. Sally Grenz died during these proceedings. She has been replaced by Kelly Grenz as the personal representative of her estate. Leo Grenz’s will disposes of his estate, and, as relevant to this appeal, the shares he owned in JT Ranch, via its residuary clause, which provides: ARTICLE FIVE. RESIDUE. A. Surviving Spouse. I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my spouse, Sally Grenz, if she shall survive me. B. Children. In the event that my spouse does not survive me, I make the following bequests: (1) I give and devise an undivided one-third of my stock in JT Ranch, Inc., to each of my sons, namely, Donavin Grenz, David Grenz and Kelly Grenz. (2) I give and devise to my daughter, Leatta Horner, the sum of $10,000.00. 1  (3) I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my son and daughter-in-law, Kelly Grenz and Kelley Grenz, in equal shares. The will was admitted to probate, and Kelly Grenz was appointed personal representative. Donavin Grenz and David Grenz objected to the probate, arguing Leo Grenz intended to devise his ownership in JT Ranch to them but he was unduly influenced not to do so by Sally Grenz and Kelly Grenz. The district court held a hearing on the objection. On the basis of consistent statements over many years that Leo Grenz made to his family members and to an individual who rented a portion of JT Ranch, the court found Leo Grenz’s testamentary intent was for the ranch shares to go to Donavin Grenz and David Grenz. The court found Leo Grenz was suffering from Parkinson’s disease and declining memory when he executed the will. The court also found Sally Grenz and Kelly Grenz isolated Leo Grenz from his other family members and they transported him to appointments with the attorney who prepared the will, which they also attended. The district court concluded that Sally Grenz and Kelly Grenz exercised undue influence over Leo Grenz and that the will’s disposition of the JT Ranch shares was contrary to his testamentary intent. To accomplish Leo Grenz’s testamentary intent, the court ordered the portions of the will’s residuary clause to be struck to the extent they devised the JT Ranch shares to Sally Grenz and Kelly Grenz. The court gave effect to a portion of the contingent distribution clause that favored Donavin Grenz and David Grenz and ordered the JT Ranch shares be distributed to them. II Kelly Grenz argues the district court improperly “rewrote” the will. He does not challenge the district court’s finding regarding Leo Grenz’s testamentary intent or the court’s determination that he and Sally Grenz exercised undue influence. Nor does he challenge the court’s decision to 2 partially invalidate the will. However, he argues that because of his and Sally Grenz’s undue influence, the will does not effectively dispose of the JT Ranch shares. He therefore claims the shares should be distributed according to intestate succession. Donavin Grenz and David Grenz argue the district court properly applied the doctrine of partial invalidity to avoid an unjust result. They note that under the laws of intestacy, Sally Grenz’s estate would acquire the majority of the shares, and Kelly Grenz would be entitled to a share as Leo Grenz’s descendant plus the interests he inherits from Sally Grenz. They claim the court properly applied its equitable powers to accomplish Leo Grenz’s testamentary intent and to prohibit the wrongdoers from benefitting from their misconduct. A Although neither party objects to the district court’s application of the doctrine of partial invalidity, we must determine whether it is a remedy available under North Dakota law. The answer to that question, which we have not decided, is necessary for us to determine whether the relief granted by the district court was proper. The doctrine of partial invalidity allows a court to separate a portion of a will that is the product of undue influence from other portions of the will that are valid: [T]he great majority of American jurisdictions have endorsed the view that where a part of a testamentary instrument is shown to have been the result of undue influence and therefore not the testator’s will, other portions of the instrument may nevertheless be given effect, at least if such other portions are separable from the concededly invalid ones. Alan R. Gilbert, Annotation, Partial Invalidity of a Will, 64 A.L.R. 3d 261 (1975). Courts do not apply the doctrine when it will “defeat the manifest intent of the testator, interfere with the general scheme of distribution, or work an injustice to other heirs.” 79 Am. Jur. 2d Wills § 357 (2d ed. 2020). See also Estate of Lloyd, 189 N.W.2d 515 , 520 (S.D. 1971). 3  Prior to North Dakota’s adoption of the Uniform Probate Code, this Court applied the doctrine of partial invalidity in Black v. Smith, 58 N.D. 109 , 224 N.W. 915 (1929). The testator and his wife became severely ill, and the testator’s wife died. Id. at 917. Shortly after her death, the testator executed a will. Id. There was a factual dispute concerning whether the beneficiaries allowed the testator to execute the will while concealing from him the fact that his wife had died. Id. at 923-24. Because she had predeceased him, he had inherited her property and his will governed its disposition. Id. at 920. The will was challenged, and on appeal this Court explained that even if the beneficiaries’ motive for concealing the wife’s death was not malicious, their behavior was still fraudulent. Id. at 924. The Court then held the fraud could only invalidate the portion of the will that was fraudulently induced: [T]he effect of any fraud resulting from an innocent concealment of the fact of [the wife’s] death would . . . extend no further than to render void the will in so far as it would operate upon the property which the deceased had inherited from his wife almost immediately before the making of the will. A majority of the court is agreed that it was error to submit the question of fraud to the jury in such a manner as to warrant the setting aside of the will altogether on that account, and that at most it could have had but the limited effect indicated. Id. at 925. Although our common law recognizes the doctrine of partial invalidity, “there is no common law in any case in which the law is declared by the code.” N.D.C.C. § 1-01-06. The Uniform Probate Code now governs probate proceedings in North Dakota. See N.D.C.C. tit. 30.1. We must therefore determine whether it has supplanted our common law rule. In Estate of Conley, 2008 ND 148 , 753 N.W.2d 384 , we were tasked with determining whether the Uniform Probate Code displaced the common law presumption of animo revocandi, which assumes a lost will was intentionally revoked. We noted that the Uniform Probate Code did not provide specific guidance on the issue. Id. at ¶¶ 18-20. Citing N.D.C.C. § 1-01-03(7), which incorporates North Dakota’s common law into its general body of law, we 4 reasoned the common law presumption applied “because there is no express law regarding the animo revocandi presumption.” Id. at ¶¶ 25, 27. Similar to Estate of Conley, North Dakota’s Uniform Probate Code is silent on the issue of whether it supplanted the prior common law rule of partial invalidity. There is no provision expressly allowing it; nor is there one expressly prohibiting it. Given this uncertainty, we look to our neighboring jurisdiction of South Dakota, which is a Uniform Probate Code state and has faced a similar issue. N.D.C.C. § 1-02-13 (stating a “uniform statute must be so construed . . . to make uniform the law of those states which enact it”); Estate of Zimmerman, 2001 ND 155 , ¶ 14, 633 N.W.2d 594 (considering Uniform Probate Code editorial board comments and decisions of other uniform jurisdictions for guidance). In Estate of O’Keefe, 1998 SD 92 , 583 N.W.2d 138 , the beneficiaries of a will inflicted fraud upon the testator while he was alive. Id. at ¶ 3. After he died, the testator’s estate sued the beneficiaries and was awarded damages. Id. An innocent beneficiary petitioned the court to prohibit the wrongdoers from sharing in the award, a portion of which they were entitled to under the terms of the will. Id. at ¶ 4. The wrongdoers argued the court had no authority to act contrary to the will. Id. at ¶ 9. They claimed South Dakota’s adoption of the Uniform Probate Code foreclosed the equitable power of courts sitting in probate. Id. at ¶ 10. The Supreme Court of South Dakota disagreed. It noted that, under South Dakota law, rules of equity supplement the Uniform Probate Code where it is silent. O’Keefe, 1998 SD 92 , ¶ 10, 583 N.W.2d 138 . The court found guidance in the Uniform Probate Code provision prohibiting slayers from inheriting from their victims. Id. at ¶ 13. The court reasoned that South Dakota has a similar public policy that prohibits perpetrators of fraud from benefitting from their misconduct. Id. at ¶ 14. It held the probate court could prohibit the wrongdoers from taking a share of the estate to which they were otherwise entitled under the terms of the will. Id. As in South Dakota, the district courts of this State are courts of general jurisdiction with equitable powers. N.D.C.C. § 27-05-06(3). The Legislature 5 has given the district courts the power to fashion remedies in both law and equity “necessary to . . . the full and complete administration of justice.” Id. There is no exception or limitation in probate proceedings. Cf. Estate of Rohrich, 496 N.W.2d 566 , 571-72 (N.D. 1993) (overturning prior decisions that held county courts sitting in probate could not exercise equitable jurisdiction). We also follow the principle that “a wrongdoer may not take advantage of his own wrong against the victim of his wrongdoing.” Beavers v. Walters, 537 N.W.2d 647 , 650-51 (N.D. 1995). That maxim has been codified. N.D.C.C. § 31-11-05(8) (“A person cannot take advantage of that person’s own wrong.”). We conclude the doctrine of partial invalidity is an available remedy under North Dakota law. It is part of our common law. It is consistent with the jurisdiction of our district courts. There is nothing in the Uniform Probate Code to indicate the legislature intended to supplant it. And it follows our codified public policy against wrongdoers benefiting from their wrongs. We make this determination while keeping in mind that “equity follows the letter and the spirit of the law and courts of equity are bound by and must follow and apply the principles of substantive law.” Schwarting v. Schwarting, 354 N.W.2d 706 , 708 (N.D. 1984). See also Estate of Voeller, 534 N.W.2d 24 , 26 (N.D. 1995) (“an equitable remedy cannot avoid the meaning of an unambiguous statute”). B Having determined the doctrine of partial invalidity is an available remedy in this state, we turn to whether the district court erred in fashioning the equitable relief it granted here. We review a district court’s exercise of its equitable powers under the abuse of discretion standard. Estate of Albrecht, 2018 ND 67 , ¶ 23, 908 N.W.2d 135 . We will not overturn a court’s exercise of its equitable powers unless it acts arbitrarily, unreasonably, or unconscionably; its decision is not the product of a rational mental process leading to a reasoned determination; or it misinterprets or misapplies the law. Id.; see also Rohrich, 496 N.W.2d at 573 . 6  Kelly Grenz argues the district court misapplied the law. He cites N.D.C.C. § 30.1-04-01(1), which states, “Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession . . . .” Kelly Grenz argues that “[a]pplying this law to the facts of the case, because Leo’s will did not effectively dispose of his JT Ranch shares due to undue influence by Sally and Kelly, the JT Ranch shares pass by intestate succession to Leo’s heirs.” We are not persuaded. Courts apply “a strong presumption” that testators do not intend for any portion of their estate to pass via intestacy and they construe wills accordingly. Estate of Klein, 434 N.W.2d 560 , 562 (N.D. 1989). The district court invalidated the will only to the extent it devised any interest in JT Ranch to Kelly Grenz and Sally Grenz. On the basis of Leo Grenz’s testamentary intent, the court gave effect to part of the contingent distribution clause that devised the JT Ranch shares to Donavin Grenz and David Grenz. Because the court gave effect to a portion of the will to distribute the shares, it cannot be said the will did “not effectively” dispose of the JT Ranch shares. The laws of intestacy therefore do not apply here. When a beneficiary attempts to obtain property by undue influence, “the beneficiary, although a survivor in fact, is not a survivor in the contemplation of law.” Mundwiller v. Mundwiller, 822 S.W.2d 863 , 866 (Mo. Ct. App. 1991). “[A] finding of undue influence . . . is analogous to that of the murder of the testator . . . .” Id. at 865. See also N.D.C.C. § 30.1-10-03(2) (“An individual who intentionally and feloniously kills the decedent forfeits all benefits under this title with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance.”). Whether a beneficiary whose undue influence invalidated a will may still claim an intestate share is a question we have not answered, and need not answer here. The district court invalidated the portion of the will resulting from undue influence and equitably treated the perpetrators of the undue influence as if they had not survived. We conclude the district court did not abuse its discretion when it applied the doctrine of partial invalidity and gave effect to a portion of Leo Grenz’s will. 7  III We affirm the district court’s orders and judgments. Jerod E. Tufte Gerald W. VandeWalle Daniel J. Crothers Jon J. Jensen, C.J. The Honorable Dale V. Sandstrom, Surrogate Judge, sitting in place of McEvers, J., disqualified. Sandstrom, Surrogate Judge, dissenting. I respectfully dissent. The district court rewrote the will of Leo Grenz. The district court judgment says “the Will shall be rewritten as follows . . . .” The proposed judgment had been filed with the district court by the contestants Donavin and David Grenz saying “the Will shall be rewritten as follows . . . .” The personal representative, the appellant here, says the district court rewrote the will and identifies the lack of authority for the district court to rewrite the will as the issue on appeal. On appeal—despite what they said in the district court—the contestants claim the district court did not rewrite the will because “all the district court did” was rearrange words and sentences already in the will and drop other words and change who inherits 93 percent of the estate. The contestants Donavin and David Grenz say the only issue on appeal is whether the district court could partially invalidate the will, something not disputed by the personal representative. The majority opinion dwells on the undisputed question of whether North Dakota should recognize partial invalidity of a will, while the opinion 8 obscures the fact that the district court rewrote the will and failed to properly apply our law. I The finding of undue influence was questionable, and recognition of the doctrine of partial invalidity of a will was interesting. On appeal, the personal representative chose to forgo any dispute on those issues, willing to accept the remedy provided by a proper application of the law, the contested property passing by intestacy as provided by statute. A Leo and Sally Grenz were approaching 40 years of marriage, apparently without ever having prepared wills. It was a second marriage for each of them. They each had children from their prior marriages. They had one son together, Kelly Grenz. The three had lived as a family unit, eventually with Kelly Grenz marrying and his spouse and their children joining them, all on the Braddock farm. Then over a two-month period they met with a respected lawyer, and then on October 8, 2009, Leo and Sally Grenz executed simple reciprocal wills. Article one identified their place of residence and their families. Article two appointed their son, Kelly Grenz, as personal representative. Article three directed payment of expenses of administration and claims against the estate. Article four provided for a list of tangible personal property to be left to devisees named on the list. Article five provided that the rest of their estates would go to the spouse, if the spouse was the survivor. The final portion of article five provided what would happen to the property of each if the other spouse did not survive. On February 27, 2015, Leo Grenz died at age 89 and after more than 40 years of marriage. Under the terms of his will—after expenses, bills, and any separately listed personal property—all of his estate passed to his wife. More than a year later, Donavin Grenz objected, claiming his father lacked testamentary capacity and mental ability to make a will, the will resulted from undue influence, and the will was contrary to the intent his father had expressed. 9  More than a year later, on July 26, 2017, a hearing was held on the objections. Those contesting the will, Donavin and David Grenz, presented testimony that from time-to-time over the years their father, Leo Grenz, had said he was going to leave them his minority shares in the JT Ranch. They dropped their claim that their father lacked testamentary capacity, which, if established, would have completely invalidated the will. They sought to paint a picture of their father as impaired by Parkinson’s disease and memory problems, and no longer exercising his free will. They said his wife, Sally Grenz, was responsible for his not attending gatherings with his “first family.” The personal representative argued it was just as likely Leo Grenz chose to stay away from the gatherings. His staying away was apparently nothing new. As the district court would find, “Over the period of nearly forty years, from the early 1970's until 2014, Leo attended only a handful of family events that Donavin or David invited him to attend.” Neither side called the treating physician, but Leo Grenz’s medical records were admitted. The records reflected Parkinson’s and memory problems by the time of the 2009 will, but the first diagnosis of Parkinson’s Dementia was in mid-2012. The contestants called a neuropsychologist who treats patients with Parkinson’s disease. He never saw Leo Grenz but read the medical file and listened to the other contestant witnesses. On the basis of what he read and heard, he said Leo Grenz would have been vulnerable to undue influence from 2008 on. The court would find this testimony “relevant and compelling.” Experienced probate attorney Malcolm Brown had prepared the wills, meeting with Leo, Sally, and Kelly Grenz and his wife twice over an eight-week period. His notes reflect that he also was preparing wills for Kelly Grenz and his wife. He testified he had no reason to believe that Leo Grenz lacked the capacity to execute the will or that the will was the product of undue influence. A year after the execution of the will, the contestant Donavin Grenz, a lawyer and former judge, drafted for his father a power of attorney naming Sally Grenz but limiting what she could do with the ranch interests during his lifetime. Although in his initial filing in this will contest he had contended his father, suffering from “parkinsonism and dementia,” had become incompetent 10 more than a year before, Donavin Grenz apparently saw no problem with his father’s ability to execute this new document. Sally Grenz did not testify during the hearing. She would die July 31, 2019, at age 81. Seven months after the hearing, February 6, 2018, the court issued its memorandum opinion and order. It found undue influence. The court wrote, “If Leo’s Will is probated as it is currently written, Sally, and eventually Kelly and Kelly’s wife Kelley, end up with all of Leo’s shares of JT Ranch and Donavin and David receive nothing.” The court then directed the rewriting of the will in the manner that will be described in detail below. The contestants promptly filed the proposed judgment. The judgment was entered on February 16, 2018. B There is nothing ambiguous about Leo Grenz’s will as written and signed by him. He died first and his wife of more than 40 years, Sally Grenz, inherited his entire estate. Everything to a surviving spouse is probably the most common will provision in the state. Under the will as rewritten by the court, Donavin and David Grenz received more than $4.5 million, and the surviving spouse received approximately $250,000. Apparently, never before has this Court struck down or upheld the striking down of a bequest to a surviving spouse on the grounds of undue influence. North Dakota has by code defined undue influence since statehood, now codified as N.D.C.C. § 9-03-11: Undue influence defined. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another or who holds a real or apparent authority over that 11  person, of such confidence or authority for the purpose of obtaining an unfair advantage over that person; 2. In taking an unfair advantage of another’s weakness of mind; or 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress. The meaning applies throughout our law. N.D.C.C. § 1-01-09 (“Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs in the same or subsequent statutes, except when a contrary intention plainly appears.”). “The law does not condemn all influence, only undue influence.” Matter of Estate of Wagner, 265 N.W.2d 459 , 464 (N.D. 1978). “A mere suspicion of undue influence is not sufficient to require submission of the question of undue influence to the jury or to sustain a verdict.” Id. at 465; In re Burris’ Estate, 72 N.W.2d 884 , 889 (N.D. 1955); Kronebusch v. Lettenmaier, 311 N.W.2d 32 , 35 (N.D. 1981). We have rejected the argument that whenever a confidential relationship exists between a party and the testator, coupled with the same party participating in the preparation of the will and receiving a benefit by its terms, a presumption of undue influence arises. Matter of Estate of Polda, 349 N.W.2d 11 , 15 (N.D. 1984) (quoting Matter of Estate of Thomas, 290 N.W.2d 223 , 227 (N.D. 1980)). We have long recognized the concept of “the natural objects of his bounty” as relating to family members, see Black v. Smith, 58 N.D. 109 , 224 N.W. 915 , 921 (1929). Other Uniform Probate Code states have expounded on the importance of this principal. “A failure to show an unnatural disposition defeats a claim of undue influence. . . . Courts have consistently found that it is not unnatural to dispose of property to family members with whom one maintains a close relationship.” M.S. v. M.L., 89 Mass. App. Ct. 1126 (2016). Our neighboring Uniform Probate Code State of Montana has said: “To establish undue influence, a party must present specific acts showing that undue influence actually was exercised upon the 12  mind of the testator directly to procure the execution of the will.” A trier of fact should consider “the opportunity for undue influence, including the testator’s susceptibility to influence, and whether the disposition of property was natural.” The mere “opportunity to exercise undue influence on the testator is not sufficient to prove undue influence and invalidate a will. Rather, the opportunity to exercise undue influence is to be considered and correlated with the alleged acts of influence to determine if the acts amount to undue influence.” Matter of Estate of Edwards, 2017 MT 93 , ¶ 56, 387 Mont. 274 , 393 P.3d 639 (internal citations omitted). This court has cautioned against seeking evidence of a testator’s “real intent” from outside the will: Where the language of a will is clear and unambiguous, the intent of the decedent must be determined from the language of the will itself. Jordan v. Anderson, 421 N.W.2d 816 , 818 (N.D. 1988). Unless a duly executed will is ambiguous, the testamentary intent is derived from the will itself, not from extrinsic evidence. Matter of Estate of Ostby, 479 N.W.2d 866 , 871 (N.D. 1992). Once it is shown that the will was properly executed, “the executed will is the decedent’s testamentary intent.” Id. The purpose of drafting and executing an unambiguous will is to give it legal effect upon death. Matter of Estate of Duemeland, 528 N.W.2d 369 , 371 (N.D. 1995). A contrary holding would leave every will open to attack as to the testator’s alleged “real” intent, and would deprive decedents of any certainty about the eventual disposition of their estates. Id. Matter of Estate of Brown, 1997 ND 11 , ¶ 16, 559 N.W.2d 818 . Because the correct application of the law on partial invalidity of a will yields a result acceptable to the personal representative and also presumably because of the normally difficult clearly erroneous standard of review on a finding of undue influence, he has not challenged the finding, even though it appears to be based on circumstance and suspicion. II The district court wrongly rewrote the will. 13  The Leo Grenz will provides: ARTICLE FIVE. RESIDUE. A. Surviving Spouse. I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my spouse, Sally Grenz, if she shall survive me. B. Children. In the event that my spouse does not survive me, I make the following bequests: (1) I give and devise an undivided one-third of my stock in JT Ranch, Inc., to each of my sons, namely, Donavin Grenz, David Grenz and Kelly Grenz. (2) I give and devise to my daughter, Leatta Horner, the sum of $10,000.00. (3) I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my son and daughter-in-law, Kelly Grenz and Kelley Grenz, in equal shares. Under Leo Grenz’s will, the JT Ranch transfers under Five (A). With the transfer under Five (A) invalidated, there is no other portion of the will that transfers the property. Five (B) by its explicit language applies only if his spouse did not survive him, and his spouse did survive him. The Uniform Probate Code as adopted by North Dakota, N.D.C.C. § 30.1-04-01(1), provides, “Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this title.” With the invalidity of the transfer of the ranch under the will, it is not effectively disposed of by will and it passes by intestate succession. Citing no authority at all to do so, the district court said it rewrote the will to provide: ARTICLE FIVE. RESIDUE. A (1) I give and devise an undivided one-third of my stock in JT Ranch, Inc., to each of my sons, namely, Donavin Grenz [and] David Grenz and Kelly Grenz. (2) Surviving Spouse. I give and devise all of the rest, residue and remainder of my property of every kind 14  and description, wherever situated and whether acquired before or after the execution of this Will, to my spouse, Sally Grenz, if she shall survive me. B. Children: In the event that my spouse does not survive me, I make the following bequests: (1) I give and devise to my daughter, Leatta Horner, the sum of $10,000.00. (2) I give and devise all of the rest, residue and remainder of my property of every kind and description, wherever situated and whether acquired before or after the execution of this Will, to my son and daughter-in-law, Kelly Grenz and Kelley Grenz, in equal shares. Not only did the district court make the contingent grant of the ranch the primary grant, it changed the terms of the clause that would have become effective had the contingency arisen by striking Kelly Grenz from that grant. A The contestants, after having acknowledged in their proposed judgment that the district court rewrote the will, on appeal boldly assert: “The district court did not re-write the Will.” In a footnote, the contestants mention two cases relating to the power of the district court regarding probate. Matter of Estate of Peterson, 1997 ND 48 , ¶¶ 14-16, 561 N.W.2d 618 ; Matter of Estate of Johnson, 501 N.W.2d 342 , 346 (N.D. 1993). Both cases relate to poorly drafted wills. In Peterson, the district court and this Court applied the statute: “The intention of a testator as expressed in the testator’s will controls the legal effect of the testator’s dispositions.” N.D.C.C. § 30.1-09-03. In Johnson, the courts had to determine the intent of language in the will that was ambiguous and capable of disparate meanings. Neither case is helpful to the contestants. The contestants mention that Kelly Grenz cannot benefit from his wrongdoing to justify rewriting the will to exclude Kelly Grenz from receiving ranch shares. The principal is not one of substantive law but one related to competing reasonable interpretations and is codified and limited by statute, N.D.C.C. § 31-11-05: 15  The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application: .... 8. A person cannot take advantage of that person’s own wrong. .... So this maxim does not alter an unambiguous statute, nor does it create any new provision of the probate code. B The majority fails to acknowledge the district court said it rewrote the will. It obscures what the district court did, saying “the court gave effect to part of the contingent distribution clause that devised the JT Ranch shares to Donavin Grenz and David Grenz.” There are at least three problems with this assertion. First, that is not what the district court said it did. The district court says it rewrote the will: “The will is rewritten as follows . . . .” Second, if the provision in the will leaving the ranch shares to the wife is invalidated, the contingency clause by its terms is not activated because it was predicated on the wife’s not surviving, but the wife survived. Third, the contingency clause it says was “given effect” was not followed by the district court. The contingency clause in Leo Grenz’s will would have left the ranch shares to all three sons equally, but the “contingency clause” in the district court’s will left the property only to Donavin and David Grenz. The majority says there is no problem with what the district court did because it just rearranged words, sentences, and beneficiaries already there, and renumbered things. Under this rationale, if a will says, “I leave everything to A and nothing to B,” the will would not have been rewritten if the court had rearranged the words to say, “I leave nothing to A and everything to B.” 16  Here is another example. Testator’s will says, “I leave $1 million to my spouse and $1,000 to Charity X.” Charity X, a beneficiary under the will, challenges the will, saying it was the result of undue influence by the spouse; after all, the testator had over the years told representatives of the charity and some others that he was going to leave the charity $1 million. Further, in later years the testator had not accepted invitations to the charity’s events (and no doubt that was the spouse’s fault). In declining health and having never written a will before, the testator accompanied by the spouse visited a lawyer and had the will prepared. The district court agrees with the charity and says it is rearranging the words so the will reads, “I leave $1,000 to my spouse and $1 million to Charity X.” The majority would say the will has not been rewritten. Section 30.1-04-01(1), N.D.C.C., says any “part of a decedent’s estate not effectively disposed of by will passes by intestate succession.” The will that must effectively dispose of the property is the will of the decedent, Leo Grenz here, not the will of the district judge. The Uniform Law Commission in drafting the Uniform Probate Code or the Legislative Assembly in its enactment in North Dakota could have provided something different than it did for cases where a will failed to effectively distribute property because of a finding of undue influence. They could have said in such cases a prior will would be resurrected, if there were one. Or they could have said in such cases the court may devise the property as it thinks the decedent would have if there was no undue influence. But they did not do so. The majority opinion looks to the non-Uniform Probate Code state of Missouri and a 29-year-old lower court opinion never adopted by that state’s supreme court, Mundwiller v. Mundwiller, 822 S.W.2d 863 , 866 (Mo. Ct. App. 1991), to argue that a finding of undue influence is “analogous” to felony murder. It notes that North Dakota has a felony murder inheritance disqualification statute. The problems here are legion. The district court did not use or even suggest it was considering such a rationale. The UPC drafting could have made such a provision but did not. The standard of proof required for felony murder is much greater, beyond a reasonable doubt. The concept opens the door for courts in the future to completely disinherit spouses. 17  The majority argues there is “a strong presumption” that testators do not intend for any of their estate to pass by intestacy, citing Estate of Klein, 434 N.W.2d 560 , 562 (N.D. 1989). The majority ignores that this is a principal for courts to interpret ambiguous wills, not to write new ones. The majority seems to suggest that a court can ignore statutes and can ignore plain words in the name of “equity.” It cites Estate of Albrecht, 2018 ND 67 , ¶ 23, 908 N.W.2d 135 , a case dealing with the intersection of divorce law and probate law, and potential equitable remedies under the divorce. The district court is specifically vested with broad equitable powers under the divorce laws, see, e.g., N.D.C.C. § 14-05-24, including the authority to “redistribute property and debts.” The district court is given no such equitable powers under the Uniform Probate Code to rewrite wills or to redistribute property and debts. As the majority concedes in another context, “equity follows the letter and the spirit of the law and courts of equity are bound by and must follow and apply the principles of substantive law.” Schwarting v. Schwarting, 354 N.W.2d 706 , 708 (N.D. 1984). See also Estate of Voeller, 534 N.W.2d 24 , 26 (N.D. 1995) (“an equitable remedy cannot avoid the meaning of an unambiguous statute”). The substantive law here is that if any part of the decedent’s estate is not effectively disposed of by the decedent’s will, it passes to the decedent’s heirs by intestate succession. N.D.C.C. § 30.1-04-01(1). Even without N.D.C.C. § 30.1-04-01(1) being dispositive, the authorities are in agreement as to the effect of undue influence on a will. If undue influence has been exerted as to some of the gifts in the will, and there is no residuary clause, the gifts as to which the undue influence was exerted are invalid; and the property which was attempted to give by such invalid gifts will pass as in intestacy. If undue influence has been exerted as to the residuary clause only, the residuary clause is invalid but the other gifts are valid; and the residue will be distributed as in intestacy. Jeffrey A. Schoenblum, Page on the Law of Wills § 15.12 (2003) (footnotes omitted). 18  III I would reverse and remand for the district court to distribute the shares of JT Ranch under the laws of intestacy. Dale V. Sandstrom, S.J. 19

2020-01-17 22:01:57.931887+00

Aiiundell

*1117OPINION. Aiiundell: Petitioner’s first contention is that the Revenue Acts of 1924 and 1926 permit the Commissioner and a taxpayer to enter into but one consent agreement extending the period within-which a *1118tax may be assessed beyond the statutory period, and that second and later so-called waivers are without legal effect. Section 278 (c) of the Revenue Acts of 1924 and 1926 provides: Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon. Counsel argues that when reading the above quoted provision with section 277 of the same acts, which section allows the Commissioner five years within which to assess taxes for the taxable years, a second consent agreement would not be an extension of the five-year period prescribed by the statute, but of such period, plus the period agreed upon in the first consent, and therefore void because not authorized by the statute. Statutes of limitation barring the right of the United States to collect taxes must be strictly construed in favor of the Government. E. I. Dupont de Nemours & Co. v. Davis, 264 U. S. 456, and Bowers v. New York & Albany Lighterage Co., 273 U. S. 346. In Loewer Realty Co. v. Anderson, 31 Fed. (2d) 268, certiorari denied October 14, 1929, the court, in construing the provisions of section 278 (d) of the 1926 Act, said that the words “ statutory period of limitation applicable thereto ” appearing in said section, were intended to include both the five-year period allowed by the statute within which to make assessments, and such period, plus any additional time agreed to in a consent agreement, each period being a statutory period, since the Act provides for them both. The language of section 278 (c) does not specifically place any limitation on the number of times the Commissioner and a taxpayer may consent in writing to an assessment of taxes after the five-year period provided in section 277. The section merely provides that where a written consent has been entered into, agreeing to an assessment “ after the time prescribed in section 277 ” the tax may be assessed at any time within the period agreed upon, without any manifest intention on the part of Congress to limit the number of consents to one. Counsel calls our attention to the provisions of section 506 (a) of the 1928 Act, amending section 278 (c) of the 1926 Act by providing that the additional period agreed upon for making an assessment “ may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon,” and argues that this provision denotes a change in the law. With this view we can not agree. It is our opinion that section 506 (a) of the 1928 Act is merely declaratory of the law as it had theretofore beeii uniformly construed. *1119The validity of the consent agreement executed on February 8, 1926, for the year 1918, is also being questioned on the ground that it was not entered into prior to the expiration of the five-year period allowed by the statute for assessment as extended by the consent agreement dated December 1, 1924. The facts as to this consent agreement, briefly stated, are these. On February 8, 1926, the petitioner executed, and four days later, forwarded to its attorneys in Washington, D. C., for filing with the respondent, an instrument to further extend the time for assessment of 1918 taxes to December 31, 1926. The attorneys returned the document to the petitioner on February 13, 1926, with the request that its corporate seal be affixed thereto. The paper, with the seal affixed, was returned to the attorneys on February 15, 1926, and was filed by them with the respondent on February 17, 1926. The correspondence with the attorneys was handled by Paul J. Doyle, petitioner’s general manager, who did not know at the time the consent agreement was first mailed to the attorneys that the limitation period for the assessment of taxes for the year 1918 had expired. Petitioner’s counsel contends that the decision of the question is controlled by Joy Floral Co. v. Commissioner, 29 Fed. (2d) 865, reversing 7 B. T. A. 800. The facts in the Joy Floral Co. case clearly show, as we pointed out in Frank E. Harris Co., 16 B. T. A. 469, that the Commissioner and the taxpayer were acting under a mistake of fact. The evidence does not disclose such a situation here. The waiver was executed and filed by the petitioner and accepted by the Commissioner and in our opinion is valid, notwithstanding the fact that it was executed and filed after the extended statutory period for assessment had expired. See Wells Brothers Co. of Illinois et al., 16 B. T. A. 79; Frank E. Harris Co., 16 B. T. A. 469; Panther Rubber Manufacturing Co., 17 B. T. A. 310; Everett B. Moore, 17 B. T. A. 314; Merchants Transfer and Storage Co., 17 B. T. A. 290. The contention being made that the consent executed on February 8, 1926, is void for lack of consideration is without merit. Joy Floral Co., 7 B. T. A. 800; Pictorial Printing Co., 12 B. T. A. 1407; Wells Brothers Co. of Illinois et al., supra; Loewer Realty Co., supra. The final claim of the petitioner as to the year 1918 is that the respondent, by not showing when the consent dated February 8, 1926, was signed by him, has failed to prove the exception to the statute in section 278 (a) of the 1926 Act. This argument has heretofore been decided contrary to the petitioner’s claim. Pantages Theatre Co., 17 B. T. A. 82, and cases cited. As to the year 1919, the petitioner contends that the consent agreement executed on December 1, 1924, extending the period of assessment one year after the expiration of the consent signed on Novem*1120ber 19, 1924, was obtained through inaccurate statements made in the respondent’s letter of November 28, 1924, concerning the expiration of the period for assessment, and for that reason it is invalid. It is difficult to see how the statements made in the respondent’s letter could have misled the petitioner. Both consents were signed by the petitioner’s president, who must have known at the time he signed the second consent that he had executed a similar one for the same year about two weeks previously, and intended, as its terms clearly provide, that the second one should extend the period for assessment designated in the first one. No action was ever taken by the petitioner to cancel the December 1, 1924, consent agreement. It appears from the statement attached to the deficiency letter that the merits of the petitioner’s tax liability for the taxable years were discussed with a representative of the respondent on May 17, 1926. Neither the original petition filed on August 1, 1926, nor the first amended petition filed four days later, questioned the effectiveness of the consent agreement. It was not until February 7, 1929, when the second amended petition was filed, that the limitations issue was raised. The respondent has at all times proceeded under the assumption that the petitioner regarded the second consent agreement binding according to its terms. In our opinion the consent agreement executed on December 1, 1924, is valid and effective. See Maple Coal Co., 10 B. T. A. 1336; Loewer Realty Co., supra; Liberty Baking Co. v. Heiner, 34 Fed. (2d) 513; 37 Fed. (2d) 703. The returns of the petitioner for the respective taxable years were filed on June 16, 1919, and February 10, 1920. The several consent agreements extended the time for assessment of taxes for the year 1918 to December 31, 1926, and for the year 1919 to February 10, 1927. The deficiency letter was mailed on June 10, 1926, a date within the time allowed by the statute, as extended by the consents. It follows, therefore, that assessment of the deficiencies is not barred by the statute of limitations. Judgment will be entered for the respondent.

2020-01-17 22:01:57.960813+00

Smith

OPINION. Smith: In West Virginia Malleable Iron Co., 16 B. T. A. 545, the Board held that the respondent’s determination that a certain patent acquired by petitioner in 1914, and for which $50,000 par value of capital stock was distributed pro rata among the stockholders, had no actual cash value at the time acquired by the petitioner and that the petitioner was not entitled to deduct from gross income, as a loss sustained in the year 1917, $50,000 by reason of proof of the worthlessness of the patent in that year. The above opinion of the Board disposed of all questions upon which the petitioner asked a redetermination of deficiencies for 1917 and 1918 in the amounts of $41,202.61 and $250.11, respectively, except that relating to the right of the petitioner to special assessment under the provisions of section 210 of the Revenue Act of 1917, and section 328 of the Revenue Act of 1918. Further proceedings with respect to the special assessment question were had before the Board under Rule 62(b) on June 20, 1929. At such hearing counsel for the petitioner waived its claim for special assessment for the year 1918. It, however, pressed its claim with respect to special assessment under section 210 of the Revenue Act of 1917 for the redetermination of the deficiency determined for 1917. At the prior hearing of this case on November 5, 1928, in West Virginia Malleable Iron Co., supra, counsel for the petitioner stated: lour Honors [we] have not mentioned special assessment. That feature was raised in the amended petition, and the sole point upon which the petitioner relies as an abnormality is in the event the value of the patent as claimed by the petitioner is not sustained by this Board, by reason of lack of proof as to its cost or value. That claim is now made. As the case stands before us at the present time the only issue is whether the reduction of the claimed invested capital of the petitioner for 1917 by $50,000, representing the alleged cash value of the patent acquired by the petitioner in 1914, results in an abnormality of invested capital and whether the disallowance of a claimed *1122deduction from gross income of $50,000 upon proof of the worthlessness of the patent in 1917 results in an abnormality of net income warranting special assessment under section 210 of the Revenue Act of 1917 for 1917. The petitioner further contends that by reason of a fire in January, 1929, which destroyed its books of account, it is unable to prove the cost of the development of the patent. Section 210 of the Revenue Act of 1917 provides: Tliat if the Secretary of the Treasury is unable in any case satisfactorily to determine the invested capital, the amount of the deduction shall be the sum of (1) an amount equal to the same proportion of the net income of the trade or business received during the taxable year as the proportion which the average deduction (determined in the same manner as provided in section 203, without including the $3,000 or $6,000 therein referred to) for the same calendar year of representative corporations, * ⅜ * engaged in a like or similar trade or business, bears to the total net income of the trade or business received by such corporations, * * * plus (2) in the case of a domestic corporation $3,000 * * *. The finding of the Board in its above cited opinion is to the effect that there was no proven cash value of the patent at the time it was acquired by the petitioner in 1914 and that accordingly it was not entitled to include in invested capital any amount in respect of the patent; further, that it sustained no deductible loss in 1917, when the patent was determined to be worthless. Section 207 of the Revenue Act of 1917 defines what constitutes invested capital. Among other things, it is the actual value of tangible property paid in, other than cash, for stock or shares of a corporation. If the property paid in for the shares had no actual cash value, the petitioner is not entitled under the law to the inclusion in invested capital of any amount for the patent paid in. We can not see how there is any proof of abnormality of invested capital where a patent having no cash value is paid in to a corporation for stock or shares and the corporation is denied the right of including in invested capital any amount for the patent. If the patent never had any value it was not entitled to deduct from gross income of 1917 any amount in respect of proof of the worthlessness of the patent. The denial of such a deduction does not cause an abnormality of income. Counsel for the petitioner suggests that the corporation was under expense in the development of the patent. The evidence of record does not show to what expense, if any, the petitioner was put in the development of a patent. There is no intimation that the costs of such development were charged to capital account. If the petitioner incurred any expense in the development of the patent it was apparently deducted from gross income in its tax returns prior to 1917. We can not determine from the record that any part of such expense, *1123if any, was improperly claimed as a deduction or allowed as a deduction in years prior to 1917. Upon the record the claim of the petitioner for special assessment for 1917 is not sustained. Judgment will be entered under Rule 50.

2020-01-17 22:01:57.99357+00

Littleton

*1125OPINION. Littleton : The issue is whether the transfer of stocks and bonds was one intended to take effect in possession or enjoyment at or after decedent’s death. It is not contended by the Commissioner that such transfers were made in contemplation of death. There is no evidence indicating that the decedent made such transfers as and when he did with a view to evading payment of any taxes. The written instrument embodying the agreement between him and his four sons was discussed, decided upon, and put in contract form in 1913, about nine years before his death, and was actually executed in 1916, in the original form in which drawn. He was a very successful business man, had for years before his death been receiving $12,600 per annum as interest on bonds of the North American Brewing Co., of which he had been president since its inception in 1892, and as its president had been receiving a salary of $40,000 for each of the three years immediately prior to 1916. *1126He was the dominant figure in the corporation and the salary of $62,000 contracted for in the agreement of March 18, 1916, between his four sons, the North American Brewing Co., and himself, was not unreasonable for his services, in view of such as he had been rendering and was to continue rendering during his natural life, the profits of the business resulting therefrom and the stock and bonds which he was transferring as a gift to his sons and from which he would no longer receive income or interest. The recitation in the agreement of March 18, 1916, relative to the amount of salary he had for several years prior been receiving was erroneous to the extent indicated in the evidence, but in the circumstances of the case, does not in our opinion materially affect results. His desire to give his sons his 4,900 shares of stock in the North American Brewing Co. and his 210 bonds of the company, is clearly expressed in the contract, with them and the company. As regards the securities, the stock and bonds, there was an absolute transfer of the title to the same to the four sons when the old, unsigned contract of 1913 was finally executed on March 18, 1916. The stocks and bonds were then actually transferred and delivered to the sons. Since that date the sons have voted the stock and received the dividends thereon, and the interest on the bonds has likewise been paid them. There was no postponement of either possession or enjoyment on the part of the sons of the gift of the stocks and bonds to them by their father. The transfer was in everjr respect complete in 1916 and title to the property transferred vested at that time in the four sons. In Frew v. Bowers, 12 Fed. (2d) 625, the court said: But, further, what is meant by the phrase “take effect in possession or enjoyment at or after” the death of the trust creator? The natural inclination of every lawyer is to recognize that “ take effect ” is not a phrase of art, to search for some artistie equivalent, and find it in the word “ vest.” But, if, as the result of a passage of title, the passing estate is vested, whether in fee, for life, in remainder, or in reversion, even though subject to divestment by subsequent event, then the transfer is complete, and so is the “ possession or enjoyment,” for one “ possesses and enjoys ” a reversion as thoroughly as he does a fee, even though most men prefer a fee to a reversion. But if the transfer of an estate results in the immediate vesting thereof, and of each and every part of the same, the transaction is complete, and the grantor or transferor has no “ interest ” left therein; wherefore on his death there can be found no such “ interest ” to include in his gross estate. In Farmers Loan & Trust Co., Executor, 16 B. T. A. 438, the Board said: From the agreed facts we consider the gift of $20,000 to the decedent’s daughter to have been full and complete on June 2, 1922. All interest in the money passed out of the decedent at that time and he took only a personal obligation *1127from his daughter to pay a specified sum quarterly. There is nothing in the facts from which we can fairly conclude that the money or the property purchased with the money was chargeable with the payment of the specified sum. On the contrary, it seems clear that the gift was complete at that time and was not intended to take effect in possession or enjoyment at or after death. Neither possession nor enjoyment vested at or after death. Both possession and enjoyment were given on June 2, 1922, to his daughter. We are of opinion that the transfer was not one intended to take effect at or after death. The Commissioner therefore erred in including the stocks and bonds in the decedent’s estate for estate-tax purposes. Judgment will be entered under Rule 50.

2020-01-17 22:01:58.020645+00

Lansbon

*1129OPINION. Lansbon : The single issue for our determination here is the actual cash value of the tangible property which the petitioner acquired in payment of its capital stock. The term “ invested capital ” as used in the various revenue acts, is defined by the acts themselves as the “ actual cash value of tangible property, other than cash, bona fide paid in for stock or shares, at the time of such payment.” The property in this case was the assets of the four companies merged, and the time of payment was the date of the merger, or the organization of petitioner, when it came into possession of the assets.' Three valuations have been put in evidence. The first is shown as that part, not assigned to good will, of the sale price fixed by the owners of the four companies merged before the organization and for which credit was given to the incorporators in payment of stock. This value was fixed and set up on petitioner’s books at $121,114.33. The second valuation was the result of an appraisal which the petitioner caused to be made of all its physical assets one year after its incorporation, by an audit company, which determined the cash sale value of petitioner’s assets on June 1, 1913. The third valuation was the result of a retrospective appraisal made on May 5, 1925, whereby the petitioner sought to determine the actual value of its tangible assets as of June 1, 1912, the date it took the same over in payment of its capital stock. This value was fixed at $138,693.35. In respect to the first mentioned valuation, it is not contended by either of the parties that it was anything more than a rough estimate of the cash value of the property taken over. It did, however, in the aggregate, represent the price which all of the parties agreed should *1130be assigned to the tangible assets when taken into the company and paid for in stock, and is the only evidence we have as to what the organizers of petitioner, who* were both sellers and purchasers, believed them to be worth for said purpose at that time. The respondent adopted the valuations established by the appraisal made June 1, 1913, as the basis of his determination of petitioner’s invested capital on the basic date, while the petitioner contends that the retrospective appraisal made in 1925 correctly fixed the value of its assets for said purposes on said date. It is very clear that the determinations of this last mentioned appraisal can not be accepted as correctly establishing the value of petitioner’s invested capital on the date of its organization. The evidence shows that the method employed in this appraisal sought only to establish the depreciated cost of these assets to June 1, 1912, rather than the cash value on said date. We have previously held that the original cost of properties acquired separately and at different times, can not be considered in determining their combined value, for invested capital, when they are subsequently taken over by a new corporation. Maury Milling Co., 10 B. T. A. 1189. We have also found that properties, after consolidation under conditions that add to their economic development, may have a greater sale value than when separately owned; and, therefore, have greater value for invested capital purposes when paid in to a corporation. Chartiers Creek Coal Co., 10 B. T. A. 984. We think the facts in this case may well bring it within this last mentioned rule, and that the assets of these several corporations, when assembled for employment under a single management, as shown here, had a sale value that should not be limited to the sums total or aggregate selling prices that might be obtained from the separate sales of the various plants, or parts of plants included in the whole. The basis adopted by the Commissioner was established by the cash sale price of the different plants as of June 1, 1913, method, while the values contended for by the petitioner were obtained by the method of original cost price per unit, plus freight and installation charges, depreciated to June 1, 1912. We do not think that the valuations contended for in either of these cases correctly reflect the petitioner’s invested capital on June 1, 1912, when measured by the actual cash value of these assets to this corporation at the time it took them over. The testimony as to the facts attending the organization of the petitioner show that prior to the incorporation the owners of the four companies agreed that they would sell their respective businesses to the new corporation for the sum total of $150,000. Under the circumstances it can hardly be contended that good will, as an asset, figured in the purchase price. However, the parties agreed, for accounting purposes, to ascertain the actual value of the physical *1131assets to be conveyed to the corporation. They appointed a committee for this purpose, and this committee decided that these physical assets were worth the sum of $121,114.33. This value was assigned to these assets on the date that the corporation took them up on its books and issued its capital stock in payment therefor. The committee which determined these values was made up of the officers of the several corporations selling, and while their work of appraisal wTas not attended by the detailed survey usually made by experts, yet for practical purposes, it is evident that these officers knew these values without exhaustive examinations. Concerning this appraisal, one of these officers testified at the hearing that “ we put down the figures for what we thought was the physical values, and then added them when we were through.” We think, in view of the appraisal made one year later, which found that these assets then had an aggregate sale price, if sold separately, of $104,447.59, and the retrospective appraisal made in 1925, which determined their depreciated cost at date of petitioner’s organization to be $138,693.35, that this first appraisal, made by the committee prior to the merger, under the circumstances fairly established the actual cash value of these assets when assembled and delivered over to the petitioner for invested capital purposes, and therefore adopt the same as the correct basis of our determination. This appraisal fixed the value of these tangible assets at $121,114.33, which we find to be the correct measure of the petitioner’s invested capital on the basic date. Decision will he entered wider Rule 50.

2020-06-05 14:08:40.415286+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_03124.htm

People v D.A. (2020 NY Slip Op 03124) People v D.A. 2020 NY Slip Op 03124 Decided on June 3, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 3, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. JOHN M. LEVENTHAL FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. 2017-02546 ON MOTION 2017-02548 [*1]The People of the State of New York, respondent, v D.A. (Anonymous), appellant. (Ind. Nos. 2721/16, 9985/16) DECISION & ORDER Motion by the appellant, in effect, to recall and vacate a decision and order of this Court dated March 6, 2019 (170 AD3d 739), which determined appeals from two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both rendered February 8, 2017, and to amend the caption to make it anonymous. Upon the papers filed in support of the motion and the papers filed in relation thereto, it is ORDERED that the motion is granted, the decision and order of this Court dated March 6, 2019, is recalled and vacated, the caption is amended, and the following decision and order is substituted for the prior decision and order: Paul Skip Laisure, New York, NY (Alice R. B. Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel; Ruby D. Andrade on the brief), for respondent. Appeals by the defendant from two judgments of the Supreme Court, Kings County (Cassandra Mullen, J.), both rendered February 8, 2017, convicting him of criminal possession of a firearm under Indictment No. 2721/16, and attempted criminal possession of a weapon in the second degree under Indictment No. 9985/16, upon his pleas of guilty, and imposing sentences. ORDERED that the judgment rendered under Indictment No. 2721/16 is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and it is further, ORDERED that the judgment rendered under Indictment No. 9985/16 is affirmed. The defendant pleaded guilty under Kings County Indictment No. 2721/16 to criminal possession of a firearm for acts he committed when he was 18 years old. The defendant pleaded guilty under Kings County Indictment No. 9985/16 to attempted criminal possession of a weapon in the second degree for acts he committed when he was 19 years old. The Supreme Court sentenced the defendant under both indictments on February 8, 2017. The defendant appeals from both judgments. "CPL 720.20(1) provides, in relevant part, that upon the conviction of an eligible youth, at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender'" (People v Hall, 160 AD3d 896, 896, quoting CPL 720.20[1]). "Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request'" (People v Hall, 160 AD3d at 896-897, quoting People v Rudolph, 21 NY3d 497, 499). Here, as the People correctly concede, the defendant "was a youth eligible to be found a youthful offender" with respect to his conviction of criminal possession of a firearm, "and the record does not demonstrate that the Supreme Court considered and determined whether the defendant should be afforded youthful offender status" (People v Hall, 160 AD3d at 897). "Where, as here, the sentencing court failed to comply with CPL 720.20, this Court must vacate the sentence and remit the matter to the sentencing court for resentencing after determining whether the defendant should be treated as a youthful offender" (People v Thomas, 157 AD3d 723, 724-725). Contrary to the People's contention, holding the appeal in abeyance pending a youthful offender determination is not appropriate in this case, as the defendant has not yet completed his sentence and there is no issue on appeal that we do not decide herein (see id. at 725). The defendant contends that the Supreme Court lacked the authority to issue an order of protection at the time of sentencing, as the individual named in the order of protection was not a victim, victim's relative or household member, or witness as defined by CPL 530.13(4). However, the defendant failed to preserve this argument for appellate review (see CPL 470.05[2]; People v May, 138 AD3d 1146, 1147), and we decline to review it in the exercise of our interest of justice jurisdiction since the defendant agreed to the issuance of an order of protection as part of his plea agreement (see People v Smith, 83 AD3d 1213, 1214). "A waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256; see People v Daniels, 160 AD3d 979, 980; People v Pressley, 116 AD3d 794, 795-796). An appeal waiver is made knowingly, intelligently, and voluntarily where "a defendant has a full appreciation of the consequences of such waiver" (People v Brown, 122 AD3d 133, 136 [internal quotation marks omitted]). Here, the People correctly concede that the record does not demonstrate that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v Lopez, 6 NY3d at 256). In light of the defendant's age, ninth grade education, and lack of experience with the criminal justice system, the Supreme Court's cursory colloquy regarding the appeal waiver was insufficient (see e.g. People v Fuller, 163 AD3d 715, 715). The court twice improperly suggested that the appeal waiver was mandatory, failed to explain the defendant's right to appeal and the consequences of waiving that right, and did not ensure that the defendant understood that his right to appeal was separate from the rights that he would automatically forfeit upon pleading guilty (see People v Lopez, 6 NY3d at 256; People v Daniels, 160 AD3d at 980; People v Brown, 122 AD3d at 141-142). Although the defendant was represented by counsel, his attorney "did not participate during the proceedings other than to acknowledge to the court that he was the defendant's attorney, and counsel did not sign the defendant's written appeal waiver form[s]" (People v Latham, 162 AD3d 1068, 1070). Nor did the fact that the court asked the defendant if his attorney had spoken to him about the appeal waiver demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, as it is not "sufficient for the trial court to defer to the defendant's off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant" (People v Brown, 122 AD3d at 141). Finally, "although the record on appeal reflects that the defendant signed the written appeal waiver form[s], a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" (People v Latham, 162 AD3d at 1070 [internal quotation marks omitted]). Thus, the appeal waiver does not preclude review of the defendant's claim that his sentence under Indictment No. 9985/16 was excessive. However, the sentence imposed under that indictment was not excessive (see People v Suitte, 90 AD2d 80). DILLON, J.P., LEVENTHAL, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-09-04 21:10:45.529621+00

http://www.tsc.state.tn.us/sites/default/files/inreestateofjohnnybaxtervaughnjr.opn_.pdf

09/04/2020 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 6, 2020 Session IN RE ESTATE OF JOHNNY BAXTER VAUGHN, JR. Appeal from the Chancery Court for Maury County No. P-110-17 Stella L. Hargrove, Chancellor No. M2019-01611-COA-R3-CV In her proposed final accounting, the administrator of an intestate estate sought court approval for, inter alia, the decedent’s funeral expenses and routine administrative expenses, including her attorney’s fees. She also sought to recover the costs she incurred to repair and sell the decedent’s house pursuant to an agreed order. The administrator is the decedent’s widow, and the remaining heirs, who are the decedent’s children from a prior marriage, opposed her request for reimbursement. The court denied her claims for post- death expenses finding “they were not timely filed because any request for reimbursement was required to be filed pursuant to Tenn. Code Ann. § 30-2-307.” The court also denied the administrator’s request to recover her attorney’s fees upon the finding that the legal services did not benefit the estate. We affirm the denial of the administrator’s request to recover her attorney’s fees. However, we have determined that the other “claims” for reimbursement of post-death expenses are not subject to the limitation provisions in Tenn. Code Ann. § 30-2-307. This is because the statute pertains to debts and liabilities incurred by or on behalf of the decedent prior to his death. All of the expenses at issue were incurred after the decedent’s death; therefore, we reverse the trial court’s ruling that the administrator’s post-death “claims” were time-barred pursuant to Tenn. Code Ann. § 30- 2-307. Because the court has supervisory authority to determine the reasonableness and necessity of expenses incurred for the benefit of and in the administration of the decedent’s estate, we remand with instructions for the trial court to determine whether each post-death expense was reasonable and necessary in light of all the relevant circumstances and to enter judgment accordingly. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part; Reversed in part and Remanded FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D. BENNETT and W. NEAL MCBRAYER, JJ., joined. Lawrence D. Sands and Jacob J. Hubbell, Columbia, Tennessee, for the appellant, Cheryl Vaughan, Administrator of the Estate of Johnny Baxter Vaughn, Jr. Lindsey L. Lawrence, Mt. Juliet, Tennessee, for the appellees, Carolyn Annette Yerger, Johnny Mark Vaughn, and Mark Irick, Administrator of the Estate of Susan Irick. OPINION Johnny Baxter Vaughn, Jr. (“Decedent”) died intestate on January 22, 2017, survived by his wife, Cheryl Vaughn, and his three adult children, Carolyn Annette Yerger, Susan Irick1, and Mark Vaughn (“Decedent’s children”). On April 12, 2017, Cheryl Vaughn (“Mrs. Vaughn”) filed a petition to be appointed administrator of Decedent’s estate. The court granted the petition and issued letters of administration, empowering Mrs. Vaughn “to enter into and take possession of all property rights and credits of the deceased and to administer the estate as required by law.” Pursuant to the court’s order, Mrs. Vaughn posted a surety bond of $10,000. Decedent owned real property at the time of his death, but he left no liquid or personal assets to pay his funeral expenses or the costs of administering his probate estate. Therefore, in February 2018, Mrs. Vaughn filed a motion requesting permission to sell Decedent’s improved real property located on Tinsley Lane in Columbia, Tennessee. Thereafter, Mrs. Vaughn and Decedent’s children entered into an agreed order by which Mrs. Vaughn was authorized to list the property with a real estate agent. She was also authorized to renovate the home, specifically, to remove a deck and make cosmetic repairs, with the expenses Mrs. Vaughn incurred to be reimbursed from the net sales proceeds. In July 2018, the property sold for $135,000 with net proceeds of $104,947.65, which are on deposit with the Clerk’s Office. In October 2018, Mrs. Vaughn and Decedent’s children filed their proposed division of the assets of Decedent’s estate. Mrs. Vaughn also filed a petition to approve the accounting and distribution of assets. In her petition, Mrs. Vaughn requested that 40% of the estate be distributed to her after reimbursement of the expenses related to the administration of the estate, which consisted of the costs expended to renovate the home, Decedent’s funeral expenses, the probate court filing fee, the bond executed upon receiving letters of administration, and attorney’s fees. Mrs. Vaughn filed an amended petition on October 23, 2018, in which she requested that one-third of the estate be distributed to her instead of 40%. Neither petition was verified. 1 Susan Irick died before the trial court entered its final order in this case. This court granted the motion of Decedent’s children to substitute Mark Irick, Administrator of the Estate of Susan Irick, as a party. -2-  Shortly thereafter, Decedent’s children filed a Tenn. R. Civ. P. 12 motion to dismiss Mrs. Vaughn’s petition on the basis that her claims were time-barred because she did not file them within 12 months from Decedent’s date of death. Decedent’s children relied on Tenn. Code Ann. § 30-2-307, arguing that, when “the personal representative has a claim against the estate in her capacity as an individual, she is required to file it with the clerk of the probate court in the same manner as all other creditors.” The court entered an order on November 26, 2018, denying the motion to dismiss upon a determination that Mrs. Vaughn was not a creditor within the meaning of § 30-2- 307. Specifically, the court found: The Agreed Orders authorizing sale of the real property by Mrs. Vaughn expressly agreed she had the right to proceed with renovation of a deck and make cosmetic repairs. She had the right to be reimbursed from the proceeds of sale. Attached to the record are several copies of invoices, a funeral bill and other expenses purporting to be incurred by Mrs. Vaughn in administration of the estate. Mrs. Vaughn had a fiduciary duty to marshal all assets of the estate and to proceed with administration thereof. The court set a hearing for Mrs. Vaughn to verify her expenses and for the court to rule on the division of assets. Decedent’s children filed a motion to alter or amend the order, and Mrs. Vaughn filed a response opposing the motion. The court entered an order on April 22, 2019, requesting additional briefing on the issue. After further consideration, the court entered an order on May 8, 2019, finding that Mrs. Vaughn was a creditor of the estate within the meaning of § 30-2-307 and was required to file a claim against the estate within 12 months of Decedent’s death. Therefore, the court ruled that Mrs. Vaughn’s claims for reimbursement were time-barred. Mrs. Vaughn filed a motion to alter or amend the May 8 order. The court denied the motion and set a final hearing to determine the distribution of assets. Prior to the final hearing, Mrs. Vaughn filed an amended accounting and proposed distribution of assets that, again, sought reimbursement for funeral expenses, administrative expenses, and expenses related to the sale of Decedent’s real property. Decedent’s children opposed the proposed distribution and filed a proposed distribution of assets that included a claim for their attorney’s fees, which they incurred during the administration of the estate. They also argued that the court should deny Mrs. Vaughn’s -3- request to be reimbursed from the estate for her expenses because the court already decided that issue. When the case came on for a final hearing on July 17, 2019, Mrs. Vaughn’s counsel was present, but Mrs. Vaughn was not. Counsel informed the court that Mrs. Vaughn was ill and unable to attend and made an oral motion for a continuance. The court afforded counsel two hours to present confirming documentation that Ms. Vaughn was unable to attend the hearing. Following the two-hour break, counsel informed the court that he was unable to obtain the requisite documentation. As a consequence, the court denied the motion for a continuance and proceeded with the hearing. The court valued Decedent’s estate at $139,213.05 and adopted the proposal for division submitted by Decedent’s children, distributing 33.3% of the estate to Mrs. Vaughn, which amounted to $46,404.35, and 22.2% of the estate to each of the children, amounting to $30,936.23. The court, once again, denied Mrs. Vaughn’s request for reimbursement of her expenses, finding that all of her claims for reimbursement were time-barred under Tenn. Code Ann. § 30-2-307. The court also denied Mrs. Vaughn’s request for attorney’s fees, finding that her representation did not confer a benefit on the estate. However, the court granted the request of Decedent’s children for their attorney’s fees and ordered that their attorney’s fees be paid out of Mrs. Vaughn’s portion of the estate. This appeal followed. Mrs. Vaughn raises two issues: 1. Whether the trial court erred in ruling that she was not entitled to be reimbursed from the estate for Decedent’s funeral bill and administrative expenses. 2. Whether the trial court erred in ruling that she was not entitled to be reimbursed for the expenses associated with maintaining, preserving, and repairing Decedent’s real property. ANALYSIS I. FUNERAL AND ADMINISTRATIVE EXPENSES In its Final Order entered on August 10, 2019, the trial court ruled that “Mrs. Vaughn’s Requests for Reimbursement are hereby denied as they were not timely filed because any request for reimbursement was required to be filed pursuant to Tenn. Code Ann. § 30-2-307.” A. Funeral Expenses -4-  “The law pledges the credit of the estate of the deceased for a decent burial immediately after the decease, and for such reasonable sums as may be necessary for that purpose, even though such expenses may have been incurred after the death, and before the appointment of an administrator.” Johnson v. Hailey, 325 S.W.2d 255 , 258 (Tenn. 1959) (quoting Fogg v. Holbrook, 33 A. 792 , 794 (Me. 1895)). Funeral expenses are an obligation created by law against the estate of a decedent. They are not necessarily matters of contract though they may be; that is to say, the executor, if there be one, may make a contract, or the husband, if the deceased person has been a wife. Of course, under such circumstances the right depends upon the contract. In the first instance, the executor, in the exercise of his powers, contracts an expense incident to the estate; in the second place, the husband contracts a debt upon his own responsibility. However, the dead must be buried, and any friend, if the matter be not attended to by the family, executor, or administrator, even may authorize an undertaker to attend to the funeral, and the estate of the decedent will be liable for a reasonable amount.” Nashville Trust Co. v. Carr, 62 S.W. 204 , 205–06 (Tenn. Ch. App. 1900) (citations omitted) (emphasis added). Nevertheless, determining who is ultimately responsible for payment of a decedent’s funeral expenses requires ascertaining, inter alia: (a) decedent’s marital status at the time of his or her death, (b) whether the decedent died testate or intestate, (c) the provisions in the decedent’s will for the payment of funeral expenses if the decedent died testate, (d) the solvency of the decedent’s estate, (e) whether the funeral expenses were pre-paid or covered by insurance, (f) the reasonableness of the funeral expenses in light of the decedent’s station in life, and (g) the authority of the person actually procuring the funeral services to bind the decedent’s estate. Estate of Francis v. Francis, No. M2000-01110-COA-R3-CV, 2001 WL 673699 , at *5 (Tenn. Ct. App. June 18, 2001). In Johnson v. Hailey, our Supreme Court relied on the reasoning in Fogg v. Holbrook, 33 A. 792 , 794 (Me. 1895), where the two questions were (1) whether the estate of the decedent was responsible “for the reasonable and proper burial expenses, neither ordered nor ratified by the subsequently appointed executor or administrator,” and, if so, (2) “how much of the expenses incurred, and sought to be recovered . . . , [were] reasonable, in view of all the circumstances.” 325 S.W.2d at 257 (quoting Fogg, 33 A. at 793 ). Following its analysis, the Fogg court reached the following conclusion: -5-  [W]e think that it is the more reasonable rule to hold that the estate of a decedent should be liable for all such reasonable expenses as are properly incurred in providing a decent burial. When such expenses are incurred, necessarily after the death of a person, there is no one legally authorized to represent the estate. The services must be rendered, and necessary articles furnished, immediately. It is better that these things should be done upon the credit of the estate, than that there should be hesitation and inquiry as to who is liable to pay. Id. at 257–58 (quoting Fogg, 33 A. at 793 ). In Johnson, the son of the decedent, who was the sole beneficiary and the personal representative of his father’s estate, contended that his uncle should not be reimbursed for the cost of the funeral because his uncle was a mere “interloper” who had no legal authority to make the arrangements. Id. at 255–57. This argument was found to be without merit for several reasons: The telegram from his uncle advised him as to the day and hour of the funeral. This necessarily put him on notice that arrangements as to a casket, etc., had been made. This was nearly 24 hours before the time he knew the funeral services were to be held. He could have contacted his uncle or someone else by phone within a matter of minutes and inquired as to what those arrangements were; and have changed them, if he had so desired. But he made no inquiry and accepted those services knowingly and without objection. Id. at 258. Based upon the foregoing facts, the Court found “that this son, sole beneficiary of the estate, is estopped from seeking, directly or indirectly, to avoid payment of this reasonable funeral expense.” Id. (emphasis added). The Supreme Court’s finding of estoppel in Johnson is significant because the facts of this case are substantially similar. Decedent’s children knew of their father’s death. They knew Mrs. Vaughn made the funeral arrangements, and they knowingly and willingly accepted those services for their father’s benefit without objection until some two years later, when Mrs. Vaughn submitted her proposed final accounting. Moreover, Decedent’s children made no effort to assist in paying the funeral expenses, knowing all the while that their father’s estate had no funds to pay the funeral expenses, and it would have no funds unless and until his real estate was sold. Here, as was the case in Johnson, Mrs. Vaughn arranged and paid for Decedent’s funeral after his death but prior to her appointment as the administrator of the estate. While acting in her capacity as the administrator of the estate, Mrs. Vaughn had the authority and -6- discretion to make or to ratify previously-made arrangements, provided the services and expenses were reasonable in light of Decedent’s station in life and subject to the approval of the probate court.2 See Johnson, 325 S.W.2d at 257 (citing Fogg, 33 A. at 793 ); see also Gooch v. Beasley, 193 S.W. 132 , 133 (Tenn. 1917) (“It is within [the personal representative’s] discretion to determine whether there should be a vault, a simple grave with the customary mound of earth, or a grave covered or adorned by a monument. The latter is a part of the general expense of burial, though, as stated, not an essential part.”). As our Supreme Court reasoned in Gooch v. Beasley, [t]he absence of any direction in the will of the deceased, on the subject, does not impair the executor’s right to make the expenditure, if the amount be reasonable. A discretion in respect of the matter, speaking generally, is vested in the personal representative (Cannon v. Apperson, supra ), subject, of course, to a future accounting, and to the approval of the court when his vouchers are offered for credit. . . . We all know that these matters as to interment are almost always committed to the sole care of the immediate family of the deceased, as indeed they must generally be, because the interment most usually takes place before it can be known whether the executor nominated by the testator will be accepted and qualified by the probate court, or who will be appointed administrator; the only check on extravagance being that the executor or administrator subsequently qualified cannot pay the bill unless it be a reasonable one, or can pay only so much of it as is reasonable under all the circumstances. 193 S.W. at 133 (emphasis added) (citation omitted). A decedent’s reasonable funeral expense is statutorily classified as the second- highest priority of claims and demands that are to be paid with estate funds. Tenn. Code Ann. § 30-2-317(a)(2). Had funds been available, Mrs. Vaughn could have paid the funeral expenses with estate funds subject to court approval of the reasonableness of the funeral expenses. Instead, and due to the fact that the estate had no funds to pay any expenses until the real estate was sold more than a year after his death, Mrs. Vaughn elected to account for and request reimbursement of the funeral expenses in her final accounting. Moreover, the claims statute upon which the trial court relied in denying all of Mrs. Vaughn’s claims as time-barred only applies to claims “arising from a debt of the 2 The court’s reasoning in Johnson implies that once Letters of Administration are issued, the Administrator of a decedent’s estate may ratify and pay the contract for Decedent’s funeral expenses subject, of course, to the probate court’s ultimate determination as to the reasonableness and necessity for the expense. See Johnson, 325 S.W.2d at 257 (citing Fogg, 33 A. at 793 ). -7- decedent.” Tenn. Code. Ann. § 30-2-307(a)(1) (emphasis added) (“All claims against the estate arising from a debt of the decedent shall be barred unless filed within the period prescribed in the notice published or posted in accordance with § 30-2-306(b).” (emphasis added)). The expenses being sought by Mrs. Vaughn were not the debts of Decedent. And, as previously stated, funeral expenses are a priority demand against the estate pursuant to Tenn. Code Ann. § 30-2-317(a). For the foregoing reasons, we remand this issue to the trial court to determine what amount of funeral expenses incurred by Mrs. Vaughn was reasonable and necessary in light of the circumstances and to order that the estate reimburse Mrs. Vaughn in that amount.3 B. Administrative Expenses and Attorney’s Fees The trial court denied any reimbursement for the probate court filing fee, the cost of the administrator’s bond, and Mrs. Vaughn’s attorney’s fees because Mrs. Vaughn did not file a claim against the estate in accordance with § 30-2-307. Mrs. Vaughn contends that she is entitled to reimbursement from the estate for reasonable and necessary expenses she incurred for the benefit of the estate without filing a formal claim because she incurred them after Decedent’s death. We agree. Personal representatives “are entitled to reasonable compensation for their services, Tenn. Code Ann. § 30-2-606[4] and to payment from the estate for reasonable expenses incurred in good faith for the exclusive and necessary benefit of the estate.” In re Estate of Wallace, 829 S.W.2d 696 , 700–01 (Tenn. Ct. App. 1992) (citing 2 H. Phillips & J. Robinson, Pritchard on Wills and Administration of Estates § 843 (4th ed. 1984)). Moreover, and significant to the trial court’s ruling that Mrs. Vaughn’s requests for reimbursement were time-barred, “[c]laims for services to the estate, for which the administrator contracts after death of the deceased, are in a separate class from claims arising during the lifetime of deceased.” W. Sur. Co. v. Wilson, 484 S.W.2d 45 , 48 (Tenn. Ct. App. 1972) (emphasis added). As we explained in Western Surety Company v. Wilson, 3 While the trial court did not make a finding in its order regarding the reasonableness of the funeral bill, it stated during arguments that the funeral bill was “pretty typical” and “not high.” 4 Tennessee Code Annotated § 30-2-606 provides: The clerk shall charge every accounting party with all sums of money the accounting party has received, or might have received by using due and reasonable diligence, and shall credit the accounting party with a reasonable compensation for services, and with disbursements supported by lawful vouchers. -8-  [t]he law places upon the administrator the onus of procuring necessary services on his own credit and of protecting himself from loss by seeing that such services can be and are paid for out of the assets of the estate and that he is allowed credit therefor in his settlement. In short, the administrator has a personal obligation for services rendered to him as administrator, but he is permitted to discharge his personal obligation by making payment out of the assets of the estate. Id. Western Surety involved a suit by an insurance company for bond premiums due from the administrator of an estate. Id. at 45. After finding that the administrator was “liable, personally, for payment of [the insurance company’s] claim,” we held that the administrator was “unquestionably . . . entitled to reimbursement from the estate for necessary expenditures made by him, personally, in the administration of the estate,” id. at 49, the only question being the reasonableness and necessity of the expense, see In re Estate of Wallace, 829 S.W.2d at 701 (“Fees and expenses to be charged against an estate must be reasonable, necessary, and proper.” (citing In re Estate of Cuneo, 475 S.W.2d 672 , 676 (Tenn. Ct. App. 1971))). After the real estate in this case was sold pursuant to an agreed order, which provided the requisite funds to pay the expenses incurred by Mrs. Vaughn as the estate’s administrator, she properly submitted a proposed final accounting in which she identified the administrative expenses for which she sought reimbursement from the estate. As explained in State ex rel. Dahlberg v. American Surety Company, 121 S.W.2d 546 , 547 (Tenn. 1938), [a]dministrators in discharge of their duty may do many things for which the estate would be ultimately liable, but that liability can be based as a charge against the estate only by presentation of accounts on behalf of the administrator in which he seeks and obtains credit for claims created by him against the estate in discharge of his duties. As the foregoing authorities reveal, Mrs. Vaughn was not required to file “a claim” pursuant to Tenn. Code. Ann. § 30-2-307 in the manner required of creditors who seek to recover from a decedent’s estate a debt or obligation that was incurred by or on behalf of a decedent prior to his or her death. On the contrary, by making a “presentation of accounts” to the court, Mrs. Vaughn timely made a proper claim to be reimbursed by the estate for the expenses she incurred in the discharge of her duties as the administrator. To be clear, and as Mrs. Vaughn notes in her brief, by failing to file a claim as a creditor of the estate, Mrs. Vaughn did not prejudice Decedent’s children by circumventing their opportunity to contest her request for reimbursement. This is because Mrs. Vaughn -9- notified them of her request for reimbursement when she filed her proposed final accounting and proposed distribution, and this protocol afforded the children the opportunity to be heard and oppose the claimed expenses and proposed distribution, which they did. For the foregoing reasons, we find the trial court erred in denying Mrs. Vaughn’s request for reimbursement of her post-mortem expenses as time-barred under Tenn. Code Ann. § 30-2-307. We note, however, that the trial court denied Mrs. Vaughn her attorney’s fees on a different ground, finding that the services did not benefit the estate, not as time- barred. Therefore, we shall discuss this request for reimbursement separately. The personal representative of an estate has the authority to retain counsel to assist in administering an estate. In re Estate of Wallace, 829 S.W.2d at 703 . Upon retention of counsel, the personal representative is personally liable for the fees until the court determines that the services were required and the fee was reasonable. Id. In In re Estate of Wallace, we explained that the reasonableness of fees and expenses must be determined in light of all relevant circumstances: Fees and expenses to be charged against an estate must be reasonable, necessary, and proper. In re Estate of Cuneo, [475 S.W.2d at 676]. Tenn. Code Ann. § 30-2-606 does not prescribe an inflexible rule for determining reasonableness. This determination must be made in light of all the relevant circumstances, including the extent of the executor’s responsibilities, the nature of the services rendered, the promptness and adequacy of the services, and the value of the benefits conferred. Carmack v. Fidelity–Bankers Trust Co., 180 Tenn. 571 , 581, 177 S.W.2d 351 , 355 (1944); Loftis v. Loftis, 94 Tenn. 232 , 241, 28 S.W. 1091 , 1093 (1895); Matlock v. Rice, 53 Tenn. (6 Heisk.) 33, 38 (1871); Pritchard § 841, at 449. Trial courts have the discretion, in the first instance, to determine whether the requested fees and expenses are reasonable. Young v. Phillips, 170 Tenn. 169 , 172, 93 S.W.2d 634 , 635 (1936); Estate of Griffith v. Griffith, 61 Tenn. App. at 86–87, 452 S.W.2d at 902 . We will not alter the trial court’s decision unless we find that the award exceeds reasonable limits. Ex parte Parker, 3 Tenn. Cas. (Shannon) 262, 263 (1881). Id. at 701. The record before us contains no evidence relevant to determining whether the attorney’s services benefited the estate or not. As a general matter, we will presume that the evidence presented at trial supports the trial court’s decision when no transcript or statement of the evidence is filed. Irvin v. City of Clarksville, 767 S.W.2d 649 , 653 (Tenn. - 10 - Ct. App. 1988) (citations omitted). Thus, we affirm the denial of the administrator’s claim to recover her attorney’s fees upon a finding that the legal services did not benefit the estate. As for the other post-mortem expenses for which Mrs. Vaughn seeks reimbursement, we reverse the denial of these claims and remand with instructions for the trial court to determine whether the expenses, including but not limited to the probate court filing fee of $406.50, the bond fee of $100.00, and other court costs and fees were reasonable and necessary and, if so, to order that she be reimbursed the reasonable amounts by the estate. II. REAL ESTATE EXPENSES Mrs. Vaughn contends the trial court erred when it ruled that she was not entitled to be reimbursed from the estate for monies spent on Decedent’s real property. She contends she is entitled to reimbursement of these expenses because they were incurred pursuant to an agreed order authorizing her to make renovations and repairs and be “reimbursed as an expense of the sale.” It appears the trial court denied reimbursement of these expenses on the same ground as the others—because Mrs. Vaughn did not file a claim against the estate. For the reasons stated above, Mrs. Vaughn was not required to file a claim in the same manner as creditors of the estate because these expenses were incurred following Decedent’s death. Therefore, we find that the trial court erred in denying Mrs. Vaughn’s claim for reimbursement of the expenses to make renovations and repairs to the real estate on the ground that it was time-barred. The agreed order stated, in pertinent part: “It is further agreed the property needs renovation and cosmetic repair such that Cheryl Vaughn is authorized to proceed with the renovation (removal of a deck), and cosmetic repairs with the expenses being reimbursed as an expense of the sale.” Thus, we remand this claim to the trial court with instructions to determine which services and expenses were incurred pursuant to the court order and to order the estate to reimburse Mrs. Vaughn the amount she reasonably and necessarily incurred while acting in furtherance of the court order. IN CONCLUSION The judgment of the trial court is affirmed in part, reversed in part, and remanded. Costs of appeal are assessed against the appellees, Carolyn Annette Yerger, Johnny Mark Vaughn, and Mark Irick, Administrator of the Estate of Susan Irick, jointly and severally. ________________________________ FRANK G. CLEMENT JR., P.J., M.S. - 11 -

2020-09-04 21:10:44.480008+00

http://www.tsc.state.tn.us/sites/default/files/in_re_kash_coa_opinion.pdf

09/04/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs August 3, 2020 IN RE KASH F.1 Appeal from the Juvenile Court for Grainger County No. 2018-JV-66 Steven Lane Wolfenbarger, Judge No. E2019-02123-COA-R3-PT This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) wanton disregard for the child’s welfare; (2) substantial noncompliance with the permanency plan; (3) severe child abuse; and (4) failure to manifest an ability and willingness to parent. The court also found that termination was in the best interest of the child. We affirm the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J. joined. Jordan Long, Knoxville, Tennessee, for the appellant, Kendall F. Herbert H. Slatery, III, Attorney General & Reporter, and Lexie A. Ward, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children’s Services. OPINION I. BACKGROUND Kash F. (“the Child”) was born to Kendall F. (“Mother”) in July 2018.2 The Tennessee Department of Children’s Services removed the Child within three days of the 1 This court has a policy of protecting the identity of children in parental rights termination cases by initializing the last name of the parties. Child’s birth due to an allegation of severe child abuse based upon Mother’s drug use while pregnant. Mother and the Child tested negative for all illegal substances at the time of birth; however, the Child’s umbilical cord tested positive for Benzodiazepines and THC. The Child was placed into foster care and was later adjudicated as dependent and neglected and a victim of severe child abuse through drug exposure. Mother did not appeal the finding of severe child abuse. DCS developed two permanency plans in this case, one dated August 16, 2018, and one dated February 8, 2019. The plans each contained the following requirements: (1) complete an alcohol and drug assessment and comply with recommendations; (2) complete a mental health assessment and follow recommendations; (3) complete a parenting assessment and follow recommendations; (4) complete domestic violence classes; (5) obtain and maintain suitable housing, income, and transportation; (6) remedy legal issues and comply with probation; (7) pay child support; and (8) submit to and pass random drug screens. Each plan was signed by Mother and ratified by the trial court. A third plan was later developed on August 9, 2019, which added two responsibilities, namely (1) create a relapse prevention plan and (2) comply with DCS home visits. Mother did not complete the majority of the requirements and was incarcerated from November 28, 2018, through April 25, 2019, based upon a probation violation for, inter alia, (1) failing a drug screen; (2) not remitting payment as required; (3) failure to maintain employment; and (4) admitted drug use. Mother’s probation violation stemmed from the following criminal convictions in August 2017: possession of drug paraphernalia, possession of a Schedule IV controlled substance; and driving on a revoked or suspended license. In April 2018, Mother was convicted of a probation violation and theft under $1,000, resulting in her serving three weeks in jail while pregnant with the Child. DCS filed a petition to terminate Mother’s parental rights on June 27, 2019, based upon the statutory grounds of (1) wanton disregard for the child’s welfare; (2) substantial noncompliance with the permanency plan; (3) severe child abuse; and (4) failure to manifest an ability and willingness to parent. Mother was arrested approximately 13 days before the scheduled hearing and spent one night in jail for theft of $15 at her place of employment. The case proceeded to a hearing on October 31, 2019, at which several witnesses testified. Three DCS caseworkers testified concerning Mother’s failure to complete the requirements of the permanency plan and to assume custody of the Child. Mother’s criminal history and drug use, specifically while pregnant, were also introduced for the 2 The putative father signed a waiver of interest and is not a party to this appeal. -2- court’s consideration. In January 2012, Mother gave birth to a child who tested positive for marijuana, methadone, and benzodiazepines. Mother also tested positive for amphetamines, benzodiazepines, and THC while pregnant with another child who died during childbirth in 2016. Likewise, Mother tested positive for amphetamines, benzodiazepines, and suboxone while pregnant with the Child in April 2018. Mother admitted to approximately ten years of drug abuse. She claimed that she has since addressed her drug addiction and was now ready to care for the Child. Ashley Peters, the Child’s first DCS caseworker, testified that she began supervising visitation after Mother cursed at Foster Mother and “caused a lot of havoc” in the home during supervised visitation. She submitted a request for in-home services for Mother to assist her in securing services and completing the requirements of her permanency plan. She further advised Mother concerning DCS’s ability to provide transportation to and from appointments as needed. She even provided Mother with a planner to track her appointments and moved visitation to Mother’s residence to ensure her attendance. She recalled one visitation in which Mother’s friend, Kevin, was in attendance. She stated that Mother and Kevin were falling asleep during the visitation, prompting her to initiate a drug screen. The drug screen was negative, despite Mother’s inability to converse or provide adequate supervision for the Child. Ms. Peters testified that some services were discontinued when Mother was incarcerated in November 2018. She stated that throughout her involvement in the case, Mother failed to complete the significant requirements of the permanency plan, namely resolve legal issues, complete assessments, and pass drug screens. She admitted that Mother passed the drug screens provided by DCS but failed a drug screen taken as part of her probation in November 2018, leading to her incarceration. Ms. Peters testified that the Child was doing well in his adoptive placement, where he was provided with plenty of clothing, food, and other necessaries. She observed a bond between him and his foster family. Samara Dixon testified that she served as the Child’s DCS caseworker from May through August 2019. She recalled that Mother tested positive for THC on August 9, 2019.3 She acknowledged that Mother had completed the parenting assessment but that her in-home family support services were ended as result of Mother’s failure to participate. She confirmed that she had difficulty maintaining contact with Mother but stated that Mother’s visitations went fairly well. 3 Mother explained that she consumed gummy bears with CBD oil. She claimed that she was unaware that the treats contained THC and would result in a positive screen. -3-  Maria Weir testified that she was assigned the Child’s case in August 2019 and has served in that capacity since that time. She confirmed that she also had difficulty maintaining contact with Mother but agreed that the visit she supervised went well. She asserted that she has attempted to facilitate services on Mother’s behalf in her limited tenure as the Child’s caseworker. Mother, who appeared late at the hearing, confirmed her drug abuse history but claimed that she only used one time while pregnant with the Child. She testified that she has been diagnosed with post-traumatic stress disorder and anxiety but denied the need for mental health treatment. She stated that she is currently living with a friend but that there was room for the Child should she regain custody. She claimed that she has a new job, starting in the morning. She recalled that she passed the majority of the drug screens provided by DCS prior to her incarceration and that she attended a drug rehabilitation program following her incarceration. She was released from the program early as a result of her progress. She recalled that she attended all but one parenting class and that she was also working to complete her domestic violence classes prior to her incarceration. She provided that she attends visitation regularly and was willing to complete any recommendations from her required assessments. She further testified concerning her love and concern for the Child and her desire to care for him as his mother. She conceded that she has not regularly remitted child support and that she was not currently receiving mental health treatment as recommended. Foster Mother confirmed that the Child is doing well in her home. She expressed her love and concern for the Child and her intent to adopt should he become available. She recalled that she supervised visitation at one time but that she later requested assistance due to Mother’s behavior. She has since resumed her supervision of visitation in an attempt to repair the relationship. She agreed that Mother’s visitation with the Child has gone “pretty well” since that time. Following the hearing, the trial court granted the termination petition in its entirety on the grounds alleged by DCS. The court also found that termination was in the best interest of the Child. This timely appeal followed. -4-  II. ISSUES The issues necessary to our resolution of this appeal are as follows: A. Whether clear and convincing evidence supports the court’s termination based upon a finding of abandonment related to Mother’s conduct prior to incarceration pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv). B. Whether clear and convincing evidence supports the court’s termination based upon a finding of substantial noncompliance with the permanency plan pursuant to Tennessee Code Annotated section 36-1- 113(g)(2). C. Whether clear and convincing evidence supports the court’s termination based upon a finding of severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(4). D. Whether clear and convincing evidence supports the court’s termination based upon a finding of failure to manifest an ability and willingness to parent pursuant to Tennessee Code Annotated section 36-1- 113(g)(14). E. Whether clear and convincing evidence supports the court’s finding that termination was in the best interest of the Child pursuant to Tennessee Code Annotated section 36-1-113(i). III. STANDARD OF REVIEW Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96 , 97 (Tenn. Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d 643 , 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48 , 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1- 113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102 , 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745 , 787 (1982)). -5-  While parental rights are superior to the claims of other persons and the government, they are not absolute and may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d 137 , 141 (Tenn. 2002). Due process requires clear and convincing evidence of the existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97 . A parent’s rights may be terminated only upon (1) [a] finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and (2) [t]hat termination of the parent’s or guardian’s rights is in the best interest[] of the child. Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing evidence proves not only that statutory grounds exist [for the termination] but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539 , 546 (Tenn. 2002). The existence of at least one statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467 , 473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474 ; In re M.W.A., Jr., 980 S.W.2d 620 , 622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable. State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726 , at *9 (Tenn. Ct. App. Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546 ; In re S.M., 149 S.W.3d 632 , 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919 , 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592 , 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726 , 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474 . In 2016, the Tennessee Supreme Court provided guidance to this court in reviewing cases involving the termination of parental rights: An appellate court reviews a trial court’s findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record -6-  and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court’s ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d 507 , 523-24 (Tenn. 2016) (internal citations omitted). IV. DISCUSSION A. Parental rights may be terminated if the parent has been incarcerated during all or part of the four months immediately preceding the filing of the termination petition and has engaged in conduct prior to incarceration that exhibits a wanton disregard for the child’s welfare. Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS must establish that (1) Mother was incarcerated at the time the termination petition was filed or within the preceding four-month period and that (2) she engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child. Tenn. Code Ann. § 36-1-102(1)(A)(iv); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL 2768003 , *5 (Tenn. Ct. App. June 17, 2014). Here, Mother was incarcerated from November 2018 through April 2019. The termination petition was filed on June 27, 2019, thereby establishing that Mother was incarcerated during part of the four months preceding the filing of the petition. This court has held that such conduct may occur at any time prior to incarceration and is not limited to acts occurring during the four-month period immediately preceding the incarceration. State of Tenn., Dep’t. of Children’s Servs. v. Hood, 338 S.W.3d 917 , 926 (Tenn. Ct. App. 2009). We have held on numerous occasions that “probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68 . The record overwhelmingly establishes Mother’s wanton disregard for the Child’s welfare. Mother admitted to drug use while pregnant with the Child. Further, she engaged in criminal behavior while the Child was in DCS custody, resulting in the -7- violation of her probation and hindering her ability to complete the requirements of her permanency plan. With these considerations in mind, we conclude that there was clear and convincing evidence to establish that Mother engaged in behavior prior to her incarceration that exhibited a wanton disregard for the Child’s welfare. B. Tennessee law requires the development of a plan of care for each foster child and further requires that the plan include parental responsibilities that are reasonably related to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of parental rights exists when a petitioner proves by clear and convincing evidence that “[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To establish noncompliance, the trial court must initially find “that the requirements of the permanency plans are reasonable and related to remedying the conditions that caused the child to be removed from the parent’s custody in the first place.” In re M.J.B., 140 S.W.3d at 656 ; see In re Valentine, 79 S.W.3d at 547 . When the trial court does not make such findings, the appellate court should review the issue de novo. In re Valentine, 79 S.W.3d at 547 . Second, the court must find that the parent’s noncompliance is substantial, In re M.J.B., 140 S.W.3d at 656 , meaning that the parent must be in “noncompliance with requirements in a permanency plan that are reasonable and related to remedying the conditions that warranted removing the child from the parent’s custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854 , at *12 (Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial noncompliance with a permanency plan, the court must weigh “both the degree of noncompliance and the weight assigned to that particular requirement.” Id. Conversely, “[t]erms which are not reasonable and related are irrelevant, and substantial noncompliance with such terms is irrelevant.” In re Valentine, 79 S.W.3d at 548 -49. “Substantial” is defined as “of real worth and importance,” Black’s Law Dictionary (11th ed. 2019), and “the real worth and importance of noncompliance should be measured by both the degree of noncompliance and the weight assigned to that requirement.” In re Valentine, 79 S.W.3d at 548 . Notably, this ground for termination does not require that DCS “expend reasonable efforts to assist a parent in complying with the permanency plan requirements.” In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608 , at *7 (Tenn. Ct. App. June 21, 2017); see also In re Kaliyah S., 455 S.W.3d 533 , 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of [the Department’s] efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent.”). -8-  Here, Mother was tasked with completing the following requirements: (1) complete an alcohol and drug assessment and comply with recommendations; (2) complete a mental health assessment and follow recommendations; (3) complete a parenting assessment and follow recommendations; (4) complete domestic violence classes; (5) obtain and maintain suitable housing, income, and transportation; (6) remedy legal issues and comply with probation; (7) pay child support; (8) submit to and pass random drug screens; (9) create a relapse prevention plan; and (10) comply with DCS home visits. While Mother made some progress on her permanency plan, she failed to remedy her legal issues and incurred new charges, lessening her ability to complete the requirements of the plan. She also failed to remit child support, pass random drug screens, and provide proof of income. She was likewise required to complete a new drug assessment following her incarceration. She has yet to complete the assessment and was arrested for theft days before the hearing. With these considerations in mind, we conclude that there was clear and convincing evidence to establish Mother’s substantial noncompliance with the requirements of the permanency plan. C. The trial court may terminate parental rights based upon a finding of severe child abuse against any child either as found “under any prior order of a court” or as “found by the court hearing the petition to terminate parental rights.” Tenn. Code Ann. § 36-1- 113(g)(4). Here, the trial court found clear and convincing evidence in support of this statutory ground of termination based upon a prior court order adjudicating the Child as a victim of severe child abuse. The finding of severe abuse is “a final decision, which the [parent] is barred from challenging” when the parent had a full and fair opportunity to litigate the issue of severe abuse in the prior suit and did not appeal. State Dep’t of Human Servs. v. Tate, No. 01-A-01-9409-CV-00444, 1995 WL 138858 , at *5 (Tenn. Ct. App. Mar. 31, 1995). Mother did not appeal the court’s finding of severe child abuse. Accordingly, the order became a final order and may be relied upon pursuant to Tennessee Code Annotated section 36-1-113(g)(4). With these considerations in mind, we uphold the court’s finding of severe child abuse. D. The trial court found that DCS had proven by clear and convincing evidence that Mother’s parental rights should be terminated pursuant to Tennessee Code Annotated section 36-1-113(g)(14), which provides as follows: -9-  A legal parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child. Tenn. Code Ann. § 36-1-113(g)(14). This ground requires the petitioner to prove two elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, a petitioner must prove that the parent failed to manifest “an ability and willingness to personally assume legal and physical custody or financial responsibility of the child.” Tenn. Code Ann. § 36-1-113(g)(14). Second, a petitioner must prove that placing the children in the parent’s “legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.” Id. There is a split in authority regarding the proof required to establish the first element, specifically, whether parental rights can be terminated under section 36-1- 113(g)(14) if a parent has manifested a willingness, but not an ability. Compare In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044 , at *7 (Tenn. Ct. App. May 31, 2018), with In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280 , at *12-15 (Tenn. Ct. App. June 20, 2018). In cases like this one where the parent has manifested neither a willingness nor an ability to assume custody or responsibility, we have upheld termination of parental rights on this ground. See, e.g., In re J’Khari F., No. M2018-00708-COA-R3-PT, 2019 WL 411538 , at *15 (Tenn. Ct. App. Jan. 31, 2019) (noting both In re Ayden S. and In re Amynn K. but ultimately concluding that the petitioner presented sufficient evidence that “Mother was not able or willing to assume physical or legal custody of or financial responsibility for the Child”); In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921 , at *9-10 (Tenn. Ct. App. Oct. 29, 2018) perm. app. denied (Tenn. Jan. 22, 2019) (noting the split in authority but holding that it was unnecessary to adopt one approach because the parent had manifested neither an ability nor a willingness to assume custody or financial responsibility). As to the second element, whether placing the child in the parent’s custody “would pose a risk of substantial harm to the physical or psychological welfare of the child,” we have explained: The courts have not undertaken to define the circumstances that pose a risk of substantial harm to a child. These circumstances are not amenable to precise definition because of the variability of human conduct. However, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm must be more than a theoretical possibility. While - 10 -  the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not. In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470 , at *8 (Tenn. Ct. App. Oct. 11, 2018) (quoting Ray, 83 S.W.3d at 732 ). While Mother expressed a willingness to assume responsibility for the Child at the hearing, her failure to act prior to the filing of the termination petition did not support her claims or indicate any evidence of an ability to assume responsibility. Indeed, Mother was incarcerated as a result of a probation violation while the Child was in DCS custody and was arrested once again days before the termination hearing. The record further supports a finding that placing him with her would pose a risk of substantial harm to his physical or psychological welfare given her failure to adequately address her drug abuse and his current placement in an adoptive home, the only home he has ever known. We affirm the court’s finding on this issue. D. Having concluded that there was clear and convincing evidence supporting at least one statutory ground of termination, we must consider whether termination was in the best interest of the Child. In making this determination, we are guided by the following non-exhaustive list of factors: (i) In determining whether termination of parental or guardianship rights is in the best interest of the child . . . the court shall consider, but is not limited to, the following: (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian; (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;4 4 In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent.”). - 11 -  (3) Whether the parent or guardian has maintained regular visitation or other contact with the child; (4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child; (5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition; (6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household; (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner; (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or (9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to [section] 36-5-101. Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not require a trial court to find the existence of each enumerated factor before it may conclude that terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183 S.W.3d 652 , 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when the best interest[] of the child and those of the adults are in conflict, such conflict shall always be resolved to favor the rights and the best interest[] of the child, which interests are hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187 , 194 (Tenn. Ct. App. 2004) (holding that when considering a child’s best interest, the court must take the child’s perspective, rather than the parent’s). - 12 -  We acknowledge Mother’s current efforts to rehabilitate herself and her desire to maintain a relationship with the Child. However, the fact remains that Mother violated her probation and was incarcerated while the Child was in DCS custody. She has since been arrested yet again in the days before the termination hearing. Tenn. Code Ann. § 36-1-113(i)(1), (2). Meanwhile, the Child has bonded with those in his foster home and is thriving. The Child should be allowed to achieve permanency and stability in his current home. A change of caretakers at this point in the Child’s life would be detrimental to his emotional condition when his adoptive home is the only home he has ever known. Tenn. Code Ann. § 36-1-113(i)(5). Questions remain as to her ability to provide a safe and stable home for the Child as evidenced by her criminal activity and failure to seek mental health treatment. Tenn. Code Ann. § 36-1-113(i)(7), (8). She has also failed to remit child support as required. Tenn. Code Ann. § 36-1-113(i)(9). With all of the above considerations in mind, we conclude that there was clear and convincing evidence to establish that termination of Mother’s parental rights was in the best interest of the Child. We affirm the trial court. V. CONCLUSION The judgment of the trial court is affirmed. The case is remanded for such further proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Kendall F. _________________________________ JOHN W. McCLARTY, JUDGE - 13 -

2021-01-26 22:02:27.19306+00

https://www.courts.ca.gov/opinions/nonpub/B300830.PDF

Filed 1/26/21 P. v. Medina CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE OF THE STATE 2d Crim. No. B300830 OF CALIFORNIA, (Super. Ct. No. 18CR01185) (Santa Barbara County) Plaintiff and Respondent, v. DANIEL MEDINA, Defendant and Appellant. Daniel Medina appeals the judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code,1 (§ 245, subd. (a)(1); count 2) and found true the allegation that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). Appellant admitted suffering a prior strike and serious felony conviction (§§ 667, subd. (a)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(28)). The trial court sentenced him All statutory references are to the Penal Code unless 1 otherwise stated. to 18 years in state prison, consisting of the high term of four years, doubled for the strike prior, plus five years each for the gang and prior serious felony enhancement allegations.2 Appellant contends the evidence is insufficient to support the true finding on the gang enhancement allegation. He also claims the enhancement was improperly imposed under subdivision (b)(1)(B) of section 186.22. We affirm. STATEMENT OF FACTS On the night of February 3, 2018, Carlos Flores-Escamilla and his niece Jasmine Flores went to a bar in Santa Barbara. Carlos3 saw Mario Hernandez, a local rapper known as “Sad Boy” who is a member of the Eastside criminal street gang. Carlos approached Hernandez, who was sitting among a group of people, 2 Appellant and codefendant Juan Rios were charged with the attempted premeditated murder of Carlos Flores-Escamilla (§§ 187, subd. (a), 664; count 1), assault with a deadly weapon upon Callisto Caldwell (count 2), assault with a deadly weapon upon Thomas Martinez (count 3), and participation in a criminal street gang (§ 186.22, subd. (a); count 4). Prior strike and serious felony conviction allegations were alleged as to all four counts. It was further alleged as to counts 1 through 3 that the crimes were committed for the benefit of a gang, and that appellant and Rios both personally inflicted great bodily injury upon the victims of those crimes (§ 12022.7, subd. (a)). Count 1 also included a personal weapon use allegation (§ 12022, subd. (b)(1)). The jury convicted appellant on count 2 and found the attendant gang and prior conviction allegations true, but found the great bodily injury allegation not true. The jury acquitted appellant on counts 1 and 3 and was unable to reach a verdict on count 4. For ease of reference, we refer to Carlos Flores-Escamilla 3 and Jasmine Flores by their first names. 2 and told him he liked his music. Carlos took offense when Hernandez looked at Jasmine in a “sexual way” and told him “that’s my niece.” After Hernandez and Carlos engaged in a “stare down,” Carlos left the bar with Jasmine. After Carlos and Jasmine left the bar they noticed that they were being followed by two men, later identified as appellant and codefendant Juan Rios. Appellant and Rios approached Carlos and Jasmine while Rios flashed Eastside gang signs. Appellant punched Jasmine in the face, causing her to fall to the ground, then joined Rios in assaulting Carlos. Appellant repeatedly yelled “Traviesos” before and after he hit Jasmine. Calisto Caldwell, Thomas Martinez, and Trina Garcia witnessed the attack as they were returning to their car after a concert. Caldwell grabbed appellant and pulled him away from Carlos, while Martinez punched Rios. After appellant and Rios ran away, Caldwell noticed that he had a three-and-a-half inch gash on his thigh and a puncture wound on his stomach. Caldwell subsequently received staples and stitches for his wounds. Martinez suffered knife wounds to his right hand that also required stitches. Carlos suffered a large gash wound to his chest and wounds to his leg and arm, all of which required staples or stitches. He also had to undergo surgery for a wound to his left hand. Jonathan Reddinger witnessed the assault from a distance. After appellant and Rios ran away, Reddinger observed one of them throw what appeared to be a knife or box cutter into the gutter near the intersection of State Street and Cota Street. The police subsequently recovered a box cutter from that location. The box cutter was open and had blood on the blade that matched Carlos’s DNA profile. 3  Detective Michael Claytor testified as the prosecution’s gang expert. Appellant and Rios are members of the Traviesos clique of the Eastside criminal street gang. Both men have Eastside gang tattoos and were in possession of Traviesos paraphernalia when they were arrested. The gang’s primary activities include assault with a deadly weapon and attempted murder. Respect for the gang is of paramount importance, and its members often respond with violence to any acts or behavior perceived as disrespectful. It is also common for gang members to shout their gang’s name or flash gang signs while committing a crime. “Claiming” the gang in this manner provides more stature for the gang. In response to a hypothetical tracking the facts of the case, Detective Claytor opined that all of the charged offenses were committed for the benefit of the Eastside gang. Appellant and Rios are both members of the gang and acted in association with each other in committing the crimes. Appellant flashed the gang’s hand signs and repeatedly shouted “Traviesos” before and during the attack. Doing so enhanced the fear and intimidation that any eyewitnesses to the attack would experience. Moreover, the gang benefitted from the attack because witnesses would be less willing to cooperate with law enforcement, which enhanced the gang’s ability to commit additional crimes in the future. Martin Flores testified as a gang expert on behalf of the defense. According to Flores, gang members do not need to respond to disrespect from others because they experience disrespect on an “ongoing basis” as “part of their reality.” Although some gang members may respond to perceived disrespect, it is not due to any rules imposed by the gang. In response to a hypothetical based on the facts of the case, Flores 4 opined that the charged offenses were not committed for the benefit of the Eastside gang. The crimes were not gang-related because they did not involve rival gang members and Rios apparently fled the scene after being repeatedly punched by Martinez. Flores also opined that Rios was no longer an active member of the gang when the crimes were committed. DISCUSSION Sufficiency of the Evidence Appellant contends the evidence is insufficient to support the jury’s true finding on the gang enhancement. We disagree. “In reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I section 15 of the California Constitution, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the [enhancement true] beyond a reasonable doubt.” (People v. Cole (2004) 33 Cal. 4th 1158 , 1212; accord, People v. Albillar (2010) 51 Cal. 4th 47 , 59-60 (Albillar) [reviewing gang enhancement for sufficient evidence].) “We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (Albillar, at p. 60.) It is well settled that “‘[a] reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to 5 support’” the jury's verdict.’” (People v. Penunuri (2018) 5 Cal. 5th 126 , 142.) Section 186.22, subdivision (b)(1) punishes gang-related crimes that are committed with the specific intent to aid crimes by gang members. (People v. Rodriguez (2012) 55 Cal. 4th 1125 , 1138.) Among other things, a prosecutor must prove beyond a reasonable doubt (1) that the underlying crime was “gang- related” because the defendant committed it “for the benefit of, at the direction of, or in association with any criminal street gang,” and (2) that the defendant committed the crime “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); Albillar, supra , 51 Cal.4th at p. 59.) The specific intent prong may be satisfied with proof “that the defendant intended to and did commit the charged felony with known members of a gang,” because from such proof “the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” ( Albillar, supra , at p. 68; see also People v. Villalobos (2006) 145 Cal. App. 4th 310 , 322 [“[c]ommission of a crime in concert with known gang members . . . supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime”]. Expert opinion testimony can be sufficient to support a gang enhancement. ( Albillar, supra , 51 Cal.4th at p. 63.) Because “[n]ot every crime committed by gang members is related to a gang” (id. at p. 60), an expert’s opinion that a crime was committed to benefit a gang must rest upon more than the assumed occurrence of the charged offense, evidence that a defendant is a gang member, and generalizations about gang 6 culture or habits (People v. Perez (2017) 18 Cal. App. 5th 598 , 612- 613; People v. Rios (2013) 222 Cal. App. 4th 542 , 573-574 (Rios); People v. Ochoa (2009) 179 Cal. App. 4th 650 , 657 (Ochoa)). The specific circumstances of the offense must support the expert’s inferences that the conduct was committed to benefit the gang. For example, an expert opinion is sufficient to support a gang enhancement where there is evidence the defendant committed a charged crime with known gang members while displaying gang paraphernalia and tattoos. (Albillar, at pp. 62, 68.) Conversely, an expert’s opinion that a charged crime by a gang member acting alone was for the benefit of the gang because the defendant is a gang member and any violent crime enhances the gang’s reputation is insufficient to support a gang enhancement. (See, e.g., Perez, at pp. 612-613 [expert testimony insufficient to support gang enhancement where defendant acted alone and there was no evidence that gang signs were used or gang affiliations declared, that the offense occurred in gang territory, or that the victims were rival gang members or saw gang tattoos or clothing]; Rios, at p. 574 [same]; Ochoa, at pp. 662–663 [same].) In challenging the gang enhancement, appellant does not dispute that the evidence is sufficient to establish that both he and Rios were members of the Eastside gang. He also effectively concedes that the evidence is sufficient to support Detective Claytor’s opinion that appellant and Rios acted in association in attacking Carlos and Jasmine, and “that the gang signs appellant threw before the fight with the Flores’ was perhaps sufficient to buttress Claytor’s opinion that had appellant been convicted on count one, a true finding on a gang enhancement would be based on sufficient evidence.” He nevertheless claims that as to the 7 assault upon Caldwell (count 2), “appellant and Rios were not acting to assist each other, nor was the crime alleged in that count in any way anticipated when they confronted the Flores’. Rather, the crime in count two occurred when Mr. Caldwell crossed the street with the intent of breaking up the fight between appellant and Rios and the Flores’.” He claims the evidence is thus insufficient to support Detective Claytor’s opinion that appellant and Rios acted in association in committing the assault on Caldwell with the specific intent to assist each other’s criminal conduct. We are not persuaded. Appellant and Rios were both convicted of assaulting Caldwell with a deadly weapon. They committed the assault when Caldwell intervened in their attack on Carlos and Jasmine. Just prior to that attack, both appellant and Rios flashed their gang’s hand signs; before and during the attack, appellant repeatedly yelled “Traviesos.” This evidence supports an inference appellant and Rios assaulted Caldwell with the intent to prevent him from interfering with their gang-related attack on Carlos and Jasmine. Appellant and Rios “not only actively assisted each other in committing [the assault on Caldwell], but their common gang membership ensured that they could rely on each other’s cooperation in committing the[] crime[] and they would benefit from committing [it] together.” ( Albillar, supra , 51 Cal.4th at pp. 61-62.) Appellant’s claim that the evidence is insufficient to support the gang enhancement thus fails. Sentencing on Gang Enhancement Appellant contends the court erroneously sentenced him under subdivision (b)(1)(B) of section 186.22, which provides for a five-year gang enhancement when the substantive offense 8 constitutes a serious felony as defined in section 1192.7, subdivision (c). He claims the matter must be remanded for him to be resentenced under subdivision (b)(1)(A) of section 186.22— which provides for an enhancement of two, three or four years— because the crime of assault with a deadly weapon is not defined as a serious felony in subdivision (c) of section 1192.7. Appellant is mistaken. Assault with a deadly weapon is clearly defined as a serious felony in section 1192.7, subdivision (c)(31). (See People v. Gallardo (2017) 4 Cal. 5th 120 , 125 [recognizing that “[t]he term ‘serious felony’ is defined to include ‘assault with a deadly weapon’”].) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED. PERREN, J. We concur: GILBERT, P. J. TANGEMAN, J. 9  Thomas R. Adams, Jr., Judge Superior Court County of Santa Barbara ______________________________ Leonard L. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael C. Keller, Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.

2021-01-26 22:02:24.739904+00

https://www.courts.ca.gov/opinions/nonpub/B301299.PDF

Filed 1/26/21 Smith v. City of Santa Barbara CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX GREG SMITH ET AL., 2d Civil No. B301299 (Super. Ct. No. 18CV01590) Petitioners and Appellants, (Santa Barbara County) v. CITY OF SANTA BARBARA, ET AL., Respondents; HERBERT BARTHELS ET AL., Real Parties in Interest. Real Parties in Interest Herbert Barthels and the Herbert E. Barthels Trust (Barthels) bought the last undeveloped oceanfront lot in Santa Barbara (City) in 1976. Barthels’s plans to build a house stalled in 1989 when the City determined he lacked legal access to the property. The City recently changed its position and revived Barthels’s plans. Neighbors and appellants Greg and Judith Smith (the Smiths) opposed development and sought a traditional writ of mandate challenging the City’s access determination. The trial court denied their petition. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The Mesa neighborhood overlooks the Pacific Ocean from the bluffs above Santa Barbara Harbor. Barthel’s lot sits on the waterfront near the Mesa’s centerline, just a few hundred feet from the city’s historic lighthouse. One accesses the lot by taking El Camino de la Luz to its eastern cul-de-sac terminus, entering a driveway, then following a narrow private road that bends southward toward the ocean. At the end is 1837 ½ El Camino de la Luz. The Smiths own the oceanfront house just west of Barthels’s lot at 1839 El Camino de la Luz. The late Gertrude Eaton created 1837 ½ by splitting off 1837’s southern half in 1958. Eaton’s neighbors, including the former owner of the Smith’s property, sent letters to the Planning Commission supporting her split request. Minutes from the commission hearings, however, reflect concerns among its members about the private road’s width and service capacity. The Commission recommended the City Council deny the request. Eaton appeared personally at the next council meeting and explained why she believed the existing 15-foot easement would provide adequate access. The council granted her request despite the commission’s denial recommendation, noting “that several of the neighbors wrote letters . . . urging approval of the requested division of property, and the granting of a variance in this case.” Eaton eventually sold 1837 ½. Barthels bought the undeveloped lot in 1976. Barthels first applied for a development permit in 1989. Neighbors objected on the grounds his project would further 2 burden the already strained private road. He learned during this process that portions of his easement measured only 7.5 feet wide. When the City refused to issue a building permit, Barthels sued his title insurer for negligence and obtained a damages award of $31,524 plus the lot’s purchase price adjusted for inflation.1 Barthels continued his development efforts after obtaining the damages award. He secured a water meter and worked with the fire department to resolve safety issues. The easement, however, remained the project’s Achilles heel. A letter from the City Attorney’s office in 1997 concluded that “the required legal access to the parcel is not clearly and definitely established from a legal standpoint.” The City reiterated its refusal to process his development application because the lot “[did] not appear to satisfy a fundamental condition of its original creation, the existence of the 15 foot wide access easement for the full length necessary for vehicular access from the public street to the parcel.” Barthels requested a conditional certificate of compliance stating exactly what was required to make his lot legal. The City issued a certificate in 1999 stating he would need to “provide evidence, satisfactory to the City Engineer that the owner . . . substantially possesses the required amount of legal access that formed the basis of the originally approved lot split.” Barthels filed a second development application in 2002. Neighbors again voiced their belief that the existing easement would not support an additional home. They also accused the late Eaton of misrepresenting the easement’s width when she 1We affirmed the superior court’s calculation of Barthels’s damages in Barthels v. Santa Barbara Title Co. (1994) 28 Cal. App. 4th 674 . The appeal did not address the substance of Barthels’s negligence claims. 3 addressed the City Council in 1958 – an act they alleged would invalidate the lot split. These objections led Barthels to sue the owners of the lots served by the private road as a way to perfect his access rights. 2 They settled the case after reaching an agreement about the easement’s precise boundaries: 15 feet wide along its northern half; 7.5 feet wide at a “pinch point” in the middle; and 10 feet wide along the southern half leading to Barthels’s lot. The court entered a stipulated judgment to this effect in 2009. Barthels continued working through the environmental review process. The Smiths began resisting the lot’s development immediately after buying their house in 2010. Trenching performed at the behest of the project’s geotechnical engineers prompted the Smiths to file a complaint for injunctive relief in 2012.3 The case lasted two years. When work resumed, the Smiths submitted formal comments to the Planning Commission reiterating their concerns about access, the lot’s legality, and impacts to nearby Lighthouse Creek. They appeared at Planning Commission hearings and submitted a lengthy report from a land use expert opining that Barthels did not and could not satisfy specific conditions set forth in the City’s 1999 conditional certificate of compliance. City Engineer Brian D’Amour decided Barthels satisfied the conditions. D’Amour explained his findings in a memorandum to the Planning Commission in February of 2018. He concluded Barthels now “‘substantially possesse[d] the Barthels v. Franco, et al. (Super. Ct. Santa Barbara 2 County, 2008, No. 1268293). Smith v. Barthels, et al. (Super. Ct. Santa Barbara 3 County, 2012, No. 1414447). 4 required amount of legal access that formed the basis of the originally approved lot split.’” D’Amour noted the easement boundaries established by Barthels and his neighbors in 2009 matched those reflected in the lot split map submitted by Eaton when she applied for split in 1958. His memorandum cited several exhibits, including the certificate, records from the 1958 lot split proceedings, the City Attorney’s 1997 letter, and the 2009 stipulated judgment. The Smiths challenged D’Amour’s determination by petitioning for a traditional writ of mandamus. They contended D’Amour erred by disregarding key evidence and assuming the accuracy of Eaton’s lot split map. In addition, they requested a finding that Barthels’s representations in his title insurance case about his lack of legal access estopped him from later asserting those rights. The trial court denied the petition and entered judgment against the Smiths. DISCUSSION A. D’Amour’s Discretionary Access Determination Is Not Subject to Traditional Writ Review “A writ of mandate may be issued by any court . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.” (Code Civ. Proc., § 1085, subd. (a).) “Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal. App. 4th 693 , 700, citing Rodriguez v. Solis (1991) 1 Cal. App. 4th 495 , 501.) A “‘ministerial act’” is one in which “‘a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment 5 or opinion concerning such act's propriety or impropriety, when a given state of facts exists.’” (Ibid., citing Rodriguez at pp. 501- 502.) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (Id. at pp. 700-701.) We categorize D’Amour’s access determination as a discretionary act performed in connection, and in compliance, with the City’s authority under the Subdivision Map Act (Act) to impose conditions on the development of local subdivisions. (See AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, supra , 197 Cal.App.4th at p. 701 [whether duty imposed by statute is ministerial or discretionary “is a question of statutory interpretation”].) The Act vests local agencies with authority to determine whether real property complies with the Act’s provisions and land use ordinances. (Gov. Code, § 66499.35, subd. (a); see Save Mount Diablo v. Contra Costa County (2015) 240 Cal. App. 4th 1368 , 1377 [“The Act ‘grants to local governments the power to regulate the manner in which their communities grow’”].) Issuing a conditional certificate of compliance notifies the owners of a non-compliant property how they can bring the property into compliance and thereby seek the permits or other grants required to begin development. (Gov. Code, § 66499.35, subd. (b).) The City issued Barthels a conditional certificate of compliance in 1999. The certificate identifies the City Engineer as the official responsible for deciding whether 1837 ½ “possessed the amount of required legal access that formed the basis of the City’s approval of the lot split in 1958.” The Smiths do not allege D’Amour declined to exercise his discretion or failed to perform a ministerial duty. They allege he exercised his discretion 6 incorrectly by, for example, relying on the lot split map and disregarding Eaton’s alleged lies to council members in 1958. These allegations only highlight how D’Amour’s determination was a product of his judgment as City Engineer and not his “obedience to the mandate of legal authority.” As such, it lies outside the purview of traditional mandate under Code Civ. Proc., section 1085. B. The Trial Court’s Denial of the Petition Was Supported by Substantial Evidence Though the trial court need not have considered the petition on its merits, it ruled correctly when it did so. “‘In reviewing a trial court’s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court’s factual findings.’” (Klajic v. Castaic Lake Water Agency (2001) 90 Cal. App. 4th 987 , 995-996, citing Kreeft v. City of Oakland (1998) 68 Cal. App. 4th 46 , 53.) “Thus, foundational matters of fact are conclusive on appeal if supported by substantial evidence.” (Klajic, at p. 996, citing Clark v. City of Hermosa Beach (1996) 48 Cal. App. 4th 1152 , 1169-1170.) We conclude the trial court’s ruling met this standard. It correctly denied the petition and entered judgment against the Smiths. “[W]e need not disturb the ruling when it is correct in law on other grounds.” (Pogosyan v. Appellate Division of Superior Court (2018) 26 Cal. App. 5th 1028 , 1036 citing People v. Smithey (1999) 20 Cal. 4th 936 , 971-972.) The absence of a verbatim transcript or precise references to identifiable demonstrative exhibits from 1958, such as the “plot map” mentioned by commissioners and council members, required D’Amour to reconstruct the basis of historic decisions and reconcile them with subsequent legal developments. The trial court carefully reviewed D’Amour’s decision and the 1600- 7 page administrative record lodged with the petition. Its statement of decision cited all documents the Smiths used to support their position, including the City Attorney’s 1997 letter, court filings, and most significantly, the minutes and reports relating to Eaton’s lot split request in 1958. D’Amour and the trial court did not reach a result contrary to the evidence, as the Smiths argue, but a result contrary to the Smiths’ interpretation of this evidence. We resolve such conflicts of disputed fact in favor of Barthels as the prevailing party. (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal. App. 5th 927 , 939, citing Hayes v. Temecula Valley Unified School Dist. (2018) 21 Cal. App. 5th 735 , 746.) C. Judicial Estoppel Does Not Apply Under These Circumstances The Smiths contend the trial court erred by not addressing whether the doctrine of judicial estoppel prevents Barthels from asserting his legal access to 1837 ½. The positions Barthels asserted in his title insurance case, they allege, contradict those asserted in these writ proceedings. The contention is moot considering traditional writ review is not available. If it were, any error was harmless because Barthels positions were neither “inconsistent” nor taken “in judicial or quasi-judicial administrative proceedings.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171 , 183.) Barthels sued his title insurer after the City refused to process his first development permit application in 1989. The positions he took in that case predated the City’s conditional certificate of compliance by a decade and the stipulated judgment by two decades. His newfound optimism flows from an altered legal landscape. We do not consider Barthels’ current positions “inconsistent” with those taken under such different 8 circumstances so long ago. Nor were those positions taken in the context of a judicial or quasi-judicial administrative proceeding. Barthels asked the City Engineer to determine whether the conditions of the 1999 certificate of compliance were satisfied. The City Engineer answered in the affirmative. No administrative hearing occurred and none was required to make this discretionary decision. That Barthels must defend his access rights 30 years hence would only strengthen the younger Barthels’ claims against his title insurer. We doubt the trial court would consider his renewed attempts to establish access as behavior that could “‘“‘result in a miscarriage of justice’”’” and thereby warrant the extraordinary remedy of judicial estoppel. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal. App. 4th 39 , 46-48, citing Levin v. Ligon (2006) 140 Cal. App. 4th 1456 , 1468 [applying doctrine is discretionary even when all factors present].) DISPOSITION The judgment is affirmed. Respondents shall recover their costs on appeal. NOT TO BE PUBLISHED. PERREN, J. We concur: GILBERT, P. J. YEGAN, J. 9  Colleen K. Sterne, Judge Superior Court County of Santa Barbara ______________________________ Venskus & Associates, Sabrina Venskus and Rachael Kimball, for Petitioners and Appellants Greg Smith and Judith Smith. No appearance for Defendants and Respondents City of Santa Barbara and Brian D’Amour. Janet K. McGinnis for Real Parties in Interest and Respondents Herbert Barthels and Herbert E Barthels Trust. 10

2021-01-26 22:02:27.50089+00

https://www.courts.ca.gov/opinions/nonpub/F077400.PDF

Filed 1/26/21 P. v. Lopez CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F077400 Plaintiff and Respondent, (Super. Ct. No. BF163485A) v. JUAN FRANCISCO LOPEZ, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- A jury found appellant Juan Francisco Lopez guilty of the murder (Pen Code,1 § 187, subd. (a)) of Silvestre Soto. The jury fixed the murder at first degree, finding true allegations that appellant committed the crime with premeditation and deliberation and 1 All further undesignated statutory references are to the Penal Code. while lying in wait (§ 189). The jury found true allegations that appellant personally and intentionally discharged a firearm causing death in the commission of the crime (§ 12022.53, subd. (d)), and that appellant committed the murder for financial gain (§ 190.2, subd. (a)(1)) and while lying in wait (§ 190.2, subd. (a)(15)). On appeal, appellant contends his conviction must be reversed because (1) his California constitutional rights were violated by the collection of DNA evidence following a 2012 arrest for charges that were later dismissed, which was retained and used to connect appellant to the crime scene; (2) his Sixth and Fourteenth Amendment rights were violated when the court instructed the jury with CALCRIM No. 373 on uncharged participants without instructing the jury the instruction did not apply to testifying witnesses; and (3) his Sixth and Fourteenth Amendment rights were violated when the court allegedly failed to properly respond to a jury question. We affirm. FACTS Soto was a mechanic who owned a tow truck. Soto’s wife, Olga Galvan,2 testified that on the evening of March 19, 2014, she and Soto were sitting in their backyard. At around 8:00 or 8:30 p.m., she heard someone arrive and yell “Silvestre” from the driveway. Soto went out to the driveway to talk to the person for about four to five minutes. When Soto went back to the backyard, he told Olga he was going to pick up a car with his tow truck and would be right back. At around 9:15 or 9:30 p.m., Soto had not returned home. Olga was worried and called Soto about three times. Olga received a text message from Soto’s number that said, “I cannot speak right now. I’ll call you back later.” Olga said this did not seem like a text message Soto would send. They did not text; he usually would just answer her calls. 2 Both Olga Galvan and Lisandro Galvan testified at trial and are referred to herein by their first names to avoid confusion. No disrespect is intended. 2.  On March 20, 2014, the body of Soto Silvestre was found in an orchard. Soto had sustained multiple shotgun rounds to the face. His body was lying behind his tow truck with shoe prints situated around Soto’s body as if someone were straddling him. There were several spent 12-gauge shotgun shells around Soto’s body. Soto’s pants pockets were pulled out as if someone went through his pockets, and his wallet was not found on his person. There was a pair of black latex gloves lying in between Soto’s legs, which were sent to the Kern County Regional Crime Lab for forensic analysis. The autopsy revealed the cause of death was multiple shotgun wounds. A man who lived on the orchard property heard two gunshots between 8:30 p.m. and 9:00 p.m. on March 19, 2014. The month following Soto’s death, the police were dispatched to a residence regarding a gunshot being heard. A shotgun was seized which was later determined to be the gun used in the homicide of Soto. The individual who was in possession of the gun, Ignacio Garcia, was renting his residence from Alberto Gonzalez. Garcia purchased the gun from someone he had never seen before who was passing by his residence on foot. The person was not appellant. Gonzalez was the husband of Soto’s wife’s cousin. According to Soto’s son, Lisandro Galvan, Gonzalez and Soto always had a rivalry between them that stemmed from a confrontation between Gonzalez and Soto’s younger brother. Lisandro said it was rare that Soto would tow a vehicle late at night unless he was doing it for a friend; Soto would not have towed a vehicle for Gonzalez or anyone associated with Gonzalez. Gonzalez testified at trial pursuant to an immunity agreement. Gonzalez owns Beto’s Automotive and tows vehicles. Gonzalez owns several guns, including shotguns. Gonzalez testified he knew Soto because Soto’s family rented a house from him 30 years prior. Gonzalez denied having an argument with Soto or Soto’s younger brother. Gonzalez would see Soto periodically but would “never” speak to him. 3.  Gonzalez had known appellant for many years. Appellant did work for Gonzalez at his shop like bringing parts into the wrecking yard. Appellant would sometimes bring Gonzalez plywood sheets. Gonzalez told police in 2015, a cell phone that was registered to Gonzalez, but was not his primary cell phone, ending in numbers 2451 (phone 2451), was exclusively used by appellant. At trial, however, he testified anyone at his shop had access to the phone. GPS data from phone 2451 showed that on March 19, 2014, between 6:00 p.m. and 6:45 p.m., there were several calls between phone 2451 and Gonzalez’s primary cell phone. From about 8:00 p.m. to 8:30 p.m., the phone was moving from the area of Soto’s residence toward the murder scene. At 8:43 p.m., phone 2451 called Gonzalez’s primary cell phone and there were several shorter calls between the two phones shortly after. That night, Victoria Guzman, who was dating Lina Castro, appellant’s wife’s brother, received a text message from phone 2451 that said, “Hey, this is Juan. In a bit I’m gonna need you to act like my wife. Please answer me when I do.” There were two more messages from phone 2451 shortly thereafter: “K. Just that you got tired of waiting and got a ride from a coworker” and “K. Thanks. This is important.” Immediately after receiving these texts, Guzman got a phone call from an unknown number but no one spoke. She could hear voices but could not identify who it was or what was being said. She thought it was appellant because of the texts. It was later determined the phone call was from Soto’s cell phone. Phone records show there were several texts between phone 2451 and Guzman between 8:14 p.m. and 8:23 p.m. and then two calls from Soto’s phone to Guzman: one at 8:28 p.m. and one at 8:36 p.m. Guzman spoke to the police in July 2014. She told them approximately three days after she got the strange phone call, appellant told her Gonzalez hired him to kill someone. Appellant had a “fat stack” of money and said he got it and a white Chevrolet Cavalier for killing the person. At trial, Guzman testified she did not recall telling the police that. A wiretap intercept of a phone call between Guzman and another unknown 4. individual recorded her telling the other person that “Juan killed somebody.” She told the other person that appellant “calls my fuckin’ cell phone from the dead guy’s phone right after he did it and that’s how I’ve been tied into this shit for a minute.” She said appellant was “bragging about killing this dude.” In July 2014, a friend of appellant’s, Robert Hernandez, spoke to the police and told them that appellant said he got hired to do a job and that “the guy is no longer here.” Appellant appeared to be boasting about it, like he was proud. Appellant told Hernandez he got $5,000 or $6,000 and a car for doing the job. Appellant suggested to Hernandez that he killed someone even though he did not use those exact words. Appellant said he went into the orchard with “this guy” and that a shot was involved. Appellant did not tell Hernandez how he got the guy to go out there with him but that he was in the tow truck with the victim. Appellant said he took the victim’s wallet and cell phone. Hernandez told the police he was scared for himself and his family because he did not know what appellant was capable of. Hernandez requested to be anonymous because “I’m really frightened of this man.” Appellant told Hernandez that “[i]f anybody snitches, that’s the end of their life.” At trial, Hernandez testified he did not remember anything he told the police. In July 2014, a Chevrolet Cavalier registered to appellant was located in a towing yard. The purchase date of the vehicle was listed on the registration as April 3, 2014. A cell phone from the center console of the vehicle had made several calls to and from Gonzalez and Guzman between April and June 2014. After Gonzalez spoke to law enforcement, he texted appellant saying, “The police came to the shop and asked for you,” and asked appellant to call him. At some point Gonzalez called appellant and the phone call was intercepted by wiretap. In the phone call, appellant answered and told Gonzalez he was going to call him but that he was “hiding because of this shit that’s going on.” Gonzalez told appellant the police were 5. looking for him; when the police asked Gonzalez for appellant’s phone number, he gave the police an old number. Gonzalez told appellant to be “alert” and “very careful.” Shortly after the call, appellant’s brother called Gonzalez and asked him for money so that “[appellant] can leave, so that he can get out of here.” Gonzalez said he would help and told appellant’s brother he would give him $300 so that “[appellant] gets a bus.” Gonzalez did give appellant’s brother the money to help appellant. DNA collected from the gloves found at the scene were analyzed and compared through the Combined DNA Index System (CODIS). In December 2015, the police received a match to appellant on one of the gloves. A warrant was subsequently issued for appellant’s arrest and, in March 2016, he was arrested out of county. Appellant spoke to police for several hours but never admitted involvement in Soto’s murder. Appellant said he had borrowed a cell phone from Gonzalez, and the last time he did so was “at least two years” before the interview. Among the defense’s evidence was testimony from Guzman’s boyfriend from the time of the murder and appellant’s brother-in-law, Lino Castro. Castro was interviewed by the police in July 2014. He told the police that Guzman thought appellant was involved because she noticed he had a car when he previously did not have one and he had a lot of money on him. Castro said appellant has not told him about committing a murder but that Guzman would not lie about something like that. Castro said Guzman had not told him that appellant told her Gonzalez gave him a car and some money to kill someone; he thought Guzman just made an assumption about where he got the car and the money. The prosecutor’s theory was appellant shot and killed Soto at the direction of Gonzalez in exchange for money and a vehicle. Defense counsel argued the evidence placing appellant at the murder scene was circumstantial. He suggested the gloves found at the scene with appellant’s DNA were planted by Gonzalez. Defense counsel argued “this was [Gonzalez’s] murder.” Defense 6. counsel pointed out Guzman appeared to be involved too and the phone records admitted into evidence revealed several calls between she and Gonzalez. DISCUSSION I. Alleged Violation of Appellant’s Right Against Unreasonable Search and Seizure and to Privacy Under the California Constitution A. Relevant Background Under California’s “DNA and Forensic Identification Database and Data Bank Act of 1998, as amended” (DNA Act) (§ 295), any person arrested for or charged with a felony offense shall provide, among other identification, information such as fingerprints and buccal swab samples. (§ 296, subd. (a)(2)(C).) DNA profiles created from these samples are uploaded to available state and national DNA and forensic identification data banks and databases. (§ 297, subd. (b).) The DNA Act contains an expungement provision for those who (1) have no past or present offense or pending charge which qualifies that person for inclusion within the state’s database and (2) there otherwise is no legal basis for retaining the sample or profile. (§ 299, subd. (a).) Of those who may request to have their DNA sample destroyed and database profile expunged include arrestees who have given a DNA sample under the DNA Act and whose charges have been dismissed prior to adjudication by a trier of fact. (§ 299, subd. (b)(1).) The arrestee may make a written request to have his or her specimen and sample destroyed and searchable database profile expunged from the data bank program. (§ 299, subd. (b).) The court has discretion to grant or deny the request for expungement, and the denial is a nonappealable order. (§ 299, subd. (c)(1).) In the present case, the match in the CODIS database to appellant’s DNA on the gloves from the crime scene was a result of a DNA sample appellant provided at booking for a 2012 felony arrest pursuant to section 296. Charges were filed against appellant in relation to that arrest but were subsequently dismissed, and his DNA profile remained 7. uploaded in CODIS. There is no evidence on the record appellant made any effort to get his sample or profile expunged. Appellant moved to suppress the DNA evidence taken from him in 2012 following his arrest, as well as the “fruits” of the collection of such evidence: the resulting CODIS hit generated in the present case in December 2015; any and all statements appellant made to law enforcement in March 2016; a DNA swab taken from appellant in April 2016 as part of the investigation for the present case; and the results of the subsequent DNA test. Appellant argued in his motion that his arrest was not supported by probable cause as required by the United States Supreme Court case, Maryland v. King (2013) 569 U.S. 435 (King), and the DNA Act violates article I, section 13 of the California Constitution. At the hearing on the motion, Kern County Deputy Sheriff Dustin Silva testified that on May 8, 2012, he was dispatched to a construction site due to a report of people trespassing and possibly trying to steal construction materials. When Silva arrived, he saw an opening in the gate with broken chain links lying on the ground in the dirt. He could not see anyone but heard people running from the property. Silva entered the construction site and observed a white van parked on the premises which was backed up to a pile of plywood. There were several sheets of plywood in the van and he located a receipt on the driver’s side floorboard with the name Alberto Gonzalez written on it. Silva also observed several unique footprints going from the white van to the plywood area. Silva called the reporting party by cell phone who told Silva they saw two vehicles; a gold colored Crown Victoria and a white van pull up to the location. The reporting party saw a person exit the gold vehicle, cut the lock, and open the gate; the person in the white van backed the van onto the property. Silva then spoke with the reporting party in person, who pointed out the vehicle they saw earlier in the evening driving past, saying, “There is those sons of bitches right there.” 8.  When the vehicle came back around near the construction site, Silva and his partner made a traffic stop on the vehicle. Gonzalez was driving, and appellant, along with another individual, were passengers in the vehicle. They were sweating profusely and appeared to be nervous. Silva asked to look at appellant and the other individuals’ shoes, and they were very similar to the unique prints at the scene. Silva’s partner located a set of keys on Gonzalez’s person, which they later determined opened the doors to the van and started the vehicle. As a result, Silva requested petty theft, trespassing, and felony conspiracy charges be filed against appellant. Silva recalled writing a probable cause declaration relating to the felony arrest for conspiracy. Silva arrested appellant and transported him to the central receiving facility and provided the probable cause declaration to the booking officers. Following Silva’s testimony, the court granted defense counsel’s request to take judicial notice of the fact the charges filed against appellant by way of complaint, namely, sections 460, subdivision (b), 182, subdivision (a)(1), 6025, and 594, subdivision (b)(2)(A), were dismissed on June 19, 2012. At the request of the prosecutor, and no objection from defense counsel, the court took judicial notice of the fact that the buccal swab was taken following a felony arrest on May 9, 2012, after appellant was booked into the central receiving facility. The court denied defense counsel’s request to find the DNA Act unconstitutional and denied appellant’s motion to suppress. B. Analysis On appeal, appellant contends the introduction of evidence collected and retained under the DNA Act in this case violated appellant’s California constitutional rights against unreasonable search and seizure and to privacy. Appellant argues his case presents a question left open by the California Supreme Court decision in People v. Buza (2018) 4 Cal. 5th 658 (Buza). 9.  In Buza, the defendant had been convicted of refusing to provide a specimen as required by the DNA Act, a misdemeanor (§ 298.1, subd. (a)), and appealed his conviction. The Buza Court of Appeal reversed the defendant’s conviction finding the collection requirement of the DNA Act as it applies to arrestees violated his rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution. (Buza, supra , 4 Cal.5th at p. 665.) While the case was pending on appeal, the United States Supreme Court addressed a similar statutory scheme in King, supra , 569 U.S. 435 and held “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (Id. at pp. 465–466.) The case was returned to the Buza Court of Appeal who again reversed the appellant’s conviction based on the finding that the DNA Act violates the California Constitution’s prohibition on unreasonable searches and seizures. (Buza, at p. 665.) On review, the Supreme Court held the DNA collection requirement was constitutionally valid as applied to an individual who is, quoting King, validly arrested on “ ‘probable cause to hold for a serious offense’ ” and required to swab his cheek as “ ‘part of a routine booking procedure’ ” at county jail under both the federal and state constitutions. (Buza, supra , 4 Cal.5th at p. 665.) The Supreme Court reversed the Court of Appeal’s judgment by a 4-3 vote. (Buza, supra , 4 Cal.5th at p. 665.) Justice Liu wrote a dissenting opinion, with Justices Cuéllar and Perluss concurring, and Justice Cuéllar wrote a separate dissenting opinion, with Justices Liu and Perluss concurring. Justice Liu concluded the defendant’s conviction for refusing to comply with the DNA Act was invalid under the California Constitution and expressed no view on whether it was also invalid under the Fourth 10. Amendment. (Buza, at p. 704.)3 Justice Cuéllar concluded the DNA Act unlawfully invades an individual’s reasonable expectation of privacy in their personal genetic information in violation of article I, section 1 of the California Constitution. (Buza, at pp. 726–727.) Here, appellant does not argue he was not validly arrested for a serious offense nor that the collection of his DNA sample was not part of a routine booking procedure. Rather, appellant contends the DNA collection procedure under section 296 violates the California Constitution’s guarantees against unreasonable search and seizure and to privacy as applied to individuals, like him, who are swabbed immediately after a felony arrest but whose charges are subsequently dismissed and whose sample is not subsequently sought to be expunged or actually expunged. Appellant contends this group was not addressed by the Buza majority4 and relies heavily on comments from Justice 3 On May 20, 2019, respondent requested we take judicial notice of the Attorney General’s Crime in California 2016 Report and the Attorney General’s Crime in California 2017 Report, as the report was referred to by Justice Liu in his Buza dissent. On May 24, 2019, this court ordered ruling on the request deferred pending consideration of this appeal. On September 18, 2020, respondent filed a second request that we take judicial notice of the Attorney General’s Crime in California 2018 Report and the California Department of Justice form JUS 8715/8715A—Information and Code Explanations. Respondent’s requests are hereby granted. (Evid. Code, §§ 452, 459.) We note, however, these documents have no effect on our disposition, as we did not reach the issue to which they pertain. 4 The Buza majority “acknowledge[d the] defendant’s concern about the collection of DNA samples from other individuals who are booked into custody but who ultimately will never be charged with a qualifying crime, or against whom qualifying charges will ultimately be dismissed.” (Buza, supra , 4 Cal.5th at p. 679.) The Buza court noted voters had responded to that concern by providing for expungement of the DNA sample and associated records when the suspect is cleared of qualifying charges. Though the Maryland statute at issue in King had automatic destruction provisions, the Buza court noted the court in King attached no significance to these provisions in its constitutional analysis. (Buza, at pp. 679–680.) The Buza court also noted an arrestee’s fingerprints, photographs, and other identifying information in law enforcement files generally have 11. Liu’s and Justice Cuéllar’s dissents regarding shortcomings of the DNA Act’s expungement procedure, arguing the present case gives this court the opportunity to address the concerns of the dissenting justices. Appellant does not allege any violation of his Fourth Amendment rights. Respondent argues appellant’s argument is “dead at the outset” because appellant’s challenge is to a ruling on a suppression motion, which is governed by Fourth Amendment search and seizure jurisprudence, not California law. We agree with respondent’s contention that federal law applies to the issues appellant raises in the present case. Generally, the California Constitution is a document of “independent force.” (People v. Brisendine (1975) 13 Cal. 3d 528 , 549–550.) Prior to the adoption of Proposition 8, the Victim’s Bill of Rights, California courts could interpret the California Constitution as entitling Californians to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution. (See ibid.) Proposition 8, however, added article I, section 28 to the California Constitution. Relevant here is the “Right to Truth-in-Evidence” provision, which reads: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be not been thought to raise constitutional concerns even though the arrestee may later be exonerated. (Id. at pp. 680–681.) The Buza court, however, declined to decide whether the Fourth Amendment requires added protection for the “wrongly arrested or exonerated” and left the question for “another day, because defendant in this case is neither.” (Buza, at p. 681.) The United States District Court for the Northern District of California subsequently found the DNA Act’s “inclusion of a somewhat more burdensome process for accomplishing” expungement than the Maryland statute at issue in King did not have any effect on its constitutionality as the court in King did not factor the expungement process into its analysis. (Haskell v. Brown (2018) 317 F. Supp. 3d 1095 , 1111.) The Haskell court found the DNA Act constitutional under King. 12.  excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.” (Cal. Const, art. I, § 28, subd. (f)(2), italics added.) In In re Lance W. (1985) 37 Cal. 3d 873 , 886–887, the California Supreme Court held that the right to truth-in-evidence provision of Proposition 8 eliminated a defendant’s right to suppress evidence the seizure of which satisfied the Fourth Amendment but violated article I, section 13 of the California Constitution. Subsequently, the United States Supreme Court in California v. Greenwood (1988) 486 U.S. 35 , 44 rejected the contention that Proposition 8’s elimination of independent state grounds for the exclusion of evidence violates the due process clause of the Fourteenth Amendment. “[T]he people of California could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law.” (California v. Greenwood, at p. 45.) When the issue is whether seized evidence is properly admitted, the question is “exclusively” whether its suppression is required by the United States Constitution. (People v. Glaser (1995) 11 Cal. 4th 354 , 363.) In response to respondent’s argument that federal law exclusively applies, appellant writes in his reply brief that his arguments “should not be foreclosed by … California Constitution, article I, section 28,” without explaining why, much less providing any authority to support this claim. Appellant states: “Respondent … argued that the only way that this issue can be addressed is based on the denial of his suppression motion. [Citation.] Appellant has argued that this court should address the issue of whether the evidence was improperly introduced and prejudicially affected the jury’s decision-making. He asserts that this argument is not precluded under the California Constitution and is not a Fourth Amendment claim.” 13.  Appellant’s attempt to reframe his argument as anything other than one against the admission of the fruits of the collection of his DNA following his 2012 arrest does not make it so. As we have discussed, the “introduction” or admission of relevant evidence is governed by the right to truth-in-evidence provision. Appellant has not persuaded us that the proper standard to apply to his argument is not the federal standard. Accordingly, appellant’s reliance on Justice Liu’s and Justice Cuéllar’s dissents in Buza is not persuasive because the Buza court was not considering the admission of evidence in a criminal case. In other words, to address appellant’s claims would be futile. Even if we were to conclude the DNA Act violated any of appellant’s rights under the California Constitution, and we express no opinion here whether it does, we would not be able to provide any remedy. We cannot give appellant the remedy he seeks unless he can show the court erred by denying his suppression motion on Fourth Amendment grounds, which he does not attempt to do. (See In re Lance W., supra , 37 Cal.3d at pp. 886–887 [“The substantive scope of [section 13] remains unaffected by Proposition 8. What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution. What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (Italics added.)].) Because appellant makes no Fourth Amendment arguments and appears to concede exclusion was not compelled under federal law, we need not analyze his claim any further. II. Alleged Instructional Error A. CALCRIM No. 373 The jury was instructed with CALCRIM No. 373, as follows: 14.  “The evidence shows that another person or other persons may have been involved in the commission of the crime charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether that other person has or those other persons have been or will be prosecuted. [¶] Your duty is to decide whether the defendant on trial here committed the crime charged.” Appellant contends the court erred by failing to make it clear to the jury the instruction did not apply to the testimony of Gonzalez or Guzman because, as he argues, it precluded the jury from considering why Gonzalez was not being tried when judging his credibility as well as Guzman’s motivation to lie about appellant’s involvement to avoid being prosecuted herself. Appellant contends the alleged error violated his Sixth and Fourteenth Amendment rights. Respondent contends appellant has forfeited this claim by failing to object to the giving of CALCRIM No. 373 or requesting a modification. Appellant contends the issue is properly raised because the giving of the instruction in his case affected his substantial rights to a jury determination of the adequacy of proof required of the prosecution as Gonzalez and Guzman were central prosecution witnesses. In light of appellant’s contentions that his substantial rights have been affected, we will address the merits of appellant’s claim. It fails. “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” (People v. Smithey (1999) 20 Cal. 4th 936 , 987.) Accordingly, “[i]n assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled.” (People v. Tate (2010) 49 Cal. 4th 635 , 696; see Estelle v. McGuire (1991) 502 U.S. 62 , 72.) Appellant’s argument is partially supported by the bench notes to CALCRIM No. 373, which read in pertinent part: “If other alleged participants in the crime are 15. testifying, this instruction should not be given or the bracketed portion should be given exempting the testimony of those witnesses.” (Bench Notes to CALCRIM No. 373 (2020), p. 139.) The bracketed portion in the instruction reads: “[This instruction does not apply to the testimony of _______ .]” (CALCRIM No. 373.) The next sentence in the bench notes, however, reads: “It is not error to give the first paragraph of this instruction if a reasonable juror would understand from all the instructions that evidence of criminal activity by a witness not being prosecuted in the current trial should be considered in assessing the witness’s credibility.” (Bench Notes to CALCRIM No. 373, supra , at p. 139.) To support this statement, the bench notes cite this court’s decision in People v. Fonseca (2003) 105 Cal. App. 4th 543 , 549–550 (Fonseca). In Fonseca, this court addressed the propriety of giving CALJIC No. 2.11.5 when coparticipants were testifying witnesses. The version of CALJIC No. 2.11.5 the Fonseca court addressed read: “There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for which the defendant is on trial. [] There may be many reasons why that person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether [he] [she] has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of [each] [the] defendant on trial.” (Fonseca, supra , 105 Cal.App.4th at p. 548.) The Fonseca court noted the phrase “discuss or give any consideration” “is something short of optimal.” (Fonseca, supra , 105 Cal.App.4th at p. 550.) The court went on to say, “We think [CALJIC No. 2.11.5] would get closer to the heart of the matter if, instead of the [words ‘discuss or give any consideration’], the phrases ‘speculate upon’ or ‘guess at,’ or words to that effect were substituted.” (Ibid.) 16.  Even so, the Fonseca court held that the instruction at issue “sufficiently conveys the idea that the intent is only to prohibit idle speculation, not to prevent consideration of pertinent evidence.” (Fonseca, supra , 105 Cal.App.4th at p. 550.) The Fonseca court held the giving of CALJIC No. 2.11.5 was not error when given in a trial where an unjoined coperpetrator testifies. (Fonseca, at p. 550.) Shortly after Fonseca was decided, the California Supreme Court came to the same conclusion, finding that giving CALJIC No. 2.11.5 was “not error when it is given together with other instructions that assist the jury in assessing the credibility of witnesses.” (People v. Crew (2003) 31 Cal. 4th 822 , 845.) Appellant’s claim is not only precluded by Crew, as we explain, it is further weakened by the fact that CALCRIM No. 373 excludes the potentially problematic phrase this court in Fonseca pointed out as “short of optimal.” By substituting the phrase “discuss or give any consideration” with “speculate about,” as this court suggested would make the instruction clearer, there is even less of a possibility that the jury would read CALCRIM No. 373 as disallowing them from considering the full spectrum of factors in evaluating witness credibility. This substitution further underscores it is clear that “the intent [of the instruction] is only to prohibit idle speculation, not to prevent consideration of pertinent evidence.” (Fonseca, supra , 105 Cal.App.4th at p. 550.) Further, the jury was properly and thoroughly instructed on witness and accomplice testimony, which, under Crew, eliminates any potential of misuse of CALCRIM No. 373. The jury was instructed they could consider “anything that reasonably tends to prove or disprove the truth or accuracy of that testimony,” including whether the testimony was influenced by bias or prejudice or a personal interest in how the case is decided, whether the witness made a statement inconsistent with his or her testimony, and whether the witness was promised immunity or leniency in exchange for his or her testimony. (CALCRIM No. 226, italics added.) The jury was also instructed that before they considered Gonzalez’s and Guzman’s testimony, they must decide 17. whether Gonzalez and/or Guzman were accomplices to the crime. (CALCRIM No. 334.) They were instructed a person is an “accomplice” if they are subject to the prosecution for the identical crime charged against the defendant. The jury was further instructed that someone is subject to prosecution if he or she personally committed the crime or knew of the criminal purpose of the person who committed the crime and intended to and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. The jury was instructed that if they determined Gonzalez and/or Guzman were not accomplices, the jury should evaluate their testimony as they would any other witness. They were instructed if they found Gonzalez and/or Guzman were accomplices, they could not rely on their testimony alone to convict appellant. Further, Gonzalez’s immunity agreement was entered into evidence for the jury’s consideration. The jury was also instructed that they must pay careful attention to all of the instructions and consider them together. (CALCRIM No. 200.) While CALCRIM No. 373 is a general instruction that tells the jurors not to speculate as to why potential participants are not being prosecuted, the instructions on how to evaluate witness and accomplice testimony are specific. The specificity of the application of the witness and accomplice testimony instructions would have made clear to the jury they could consider Gonzalez’s and Guzman’s possible involvement with the crime on their credibility. It is unlikely that, after reading and considering the instructions together, the jurors would have understood CALCRIM No. 373 as instructing them to disregard elements of how to evaluate witness and accomplice testimony. We find the jury would have known, based on the totality of the instructions, they could consider why a witness was not being prosecuted in determining credibility. For the foregoing reasons, we find no error in the court’s instructing the jury with CALCRIM No. 373. Accordingly, we also find none of appellant’s constitutional rights have been violated. 18.  B. The Court’s Response to the Jury Question About Special Circumstances of Murder While deliberating, the jury submitted a written question which read: “If there is 1 special circumstance that is not unanimous[,] can there still be a 1st degree murder conviction[,] or do all 5 special circumstances need to be agreed upon for a murder 1 conviction”? The court gave the jury a written response without objection that stated: “If there is one special circumstance that is not unanimous, there can still be a first degree murder conviction. Not all five enhancements need to be agreed upon for a first degree murder conviction. [¶] Please see CALCRIM instructions 520 and 521.” Appellant contends the jury’s question demonstrated confusion about the order in which the jury should have made its findings. He contends for this reason the trial court’s response to the jury was incomplete and should have included a reference to CALCRIM No. 700,5 which “made clear that the special circumstance allegations were only to be determined after they reached a unanimous verdict on first degree murder.” Appellant contends the alleged error requires reversal under the Sixth and Fourteenth Amendments. Respondent argues that because appellant did not object to the court’s response below this issue is forfeited. Appellant acknowledges he did not object below but 5 CALCRIM No. 700 reads: “If you find the defendant guilty of first degree murder, you must also decide whether the People have proved that one or more of the special circumstances are true. “The People have the burden of proving each special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. You must return a verdict form stating true or not true for each special circumstance on which you all agree. “In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree. “You must consider each special circumstance separately.” 19. contends we may review the error because of the substantive rights it implicates. In the alternative, appellant contends his trial counsel provided ineffective assistance of counsel by failing to object. Because appellant contends the alleged error affected his substantial right to a proper jury finding of every element of the offense and enhancements beyond a reasonable doubt, we decline to decide the issue based on forfeiture or ineffective assistance of counsel. In any event, appellant’s claim fails. We apply “the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal. 4th 690 , 745–746.) “The court has a primary duty to help the jury understand the legal principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal. 3d 68 , 97.) During jury deliberations “when the jury ‘desire[s] to be informed on any point of law arising in the case … the information required must be given.’ ” (People v. Brooks (2017) 3 Cal. 5th 1 , 97.) “However, ‘[w]here the original instructions are themselves full and complete, the court has discretion … to determine what additional explanations are sufficient to satisfy the jury’s request for information.’ ” (Ibid.) Here, it appears to us that the jury’s question above all else demonstrated a confusion between first degree murder theories and special circumstances. This is based on the jury’s reference to there being “5 special circumstances” in their note. The court’s response began to correct this confusion by differentiating between terms; the court explained that if one “special circumstance” is not unanimous, there can still be a first degree murder conviction, but that not “all five enhancements need to be agreed upon for a first degree murder conviction.” (Italics added.) The court’s referring the jury to CALCRIM Nos. 520 and 521 would have further alleviated this confusion. By referring the jury to CALCRIM Nos. 520 and 521, the court reminded the jury of the elements that must be proven for first degree murder in contrast to second degree 20. murder, underlining that agreement that a first degree murder theory had been proven was a requirement for a first degree murder conviction. CALCRIM No. 520 explained the elements of murder. CALCRIM No. 521 explained the elements set forth in CALCRIM No. 520 were for second degree murder. CALCRIM No. 521 explained that appellant was being prosecuted for first degree murder on two theories: deliberation and premeditation and lying in wait. The jury was instructed they needed to unanimously agree appellant committed first degree murder but did not need to unanimously agree on the theory. These two instructions would have underscored for the jury that they needed to decide on whether appellant committed murder and whether the murder was of the first degree by deciding whether the elements of a first degree murder theory had been proven. The jury would have also understood from being pointed to these instructions that the elements of the special circumstances alleged were not elements of murder or first degree murder and could correctly infer they needed to be decided upon separately. The court did not abuse its discretion by answering the jury’s question in the manner it did; none of appellant’s constitutional rights were violated. DISPOSITION The judgment is affirmed. DE SANTOS, J. WE CONCUR: PEÑA, Acting P.J. MEEHAN, J. 21.

2021-01-26 22:02:25.40595+00

https://www.courts.ca.gov/opinions/nonpub/D076954.PDF

Filed 1/26/21 P. v. Wilkerson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D076954 Plaintiff and Respondent, v. (Super. Ct. No. JCF002694) ROBERT WILKERSON, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed in part, vacated in part, and remanded with direction. Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.  I INTRODUCTION Robert Wilkerson pleaded no contest to one count of assault with a deadly weapon (Pen. Code1, § 245, subd. (a)(1)). Pursuant to the terms of the plea agreement, the trial court granted Wilkerson three years of formal probation subject to various terms and conditions. Wilkerson challenges two conditions of his probation: condition 5, which requires attendance at Alcoholics Anonymous meetings twice a week, and condition 11, insofar as it requires him to submit to alcohol testing (he does not challenge the condition requiring drug testing). He contends the alcohol conditions are unauthorized under People v. Lent (1975) 15 Cal. 3d 481 (Lent) because the record does not indicate he was under the influence of alcohol when he committed the offense or that he has a history of alcohol abuse. He also contends condition 5 requiring his attendance at Alcoholics Anonymous meetings violates the Establishment and Free Speech Clauses of the First Amendment because Alcoholics Anonymous requires acknowledgement of a higher power. In supplemental briefing, Wilkerson contends that Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2), which amended section 1203.1 to limit the probation term for most felony offenses to two years, applies retroactively to this case. Wilkerson asks us to remand with directions for the trial court to resentence him to a term of probation not to exceed two years. The People contend the amended statute does not apply retroactively to this case because probation is not punishment and, thus, is not subject to the rule of In re Estrada (1965) 63 Cal. 2d 740 (Estrada) applying ameliorative changes in 1 Further references are to the Penal Code unless otherwise stated. 2 criminal law to nonfinal judgments unless otherwise indicated by the Legislature. We conclude the amended statute applies to this case and the matter should be remanded for resentencing to allow the court to exercise its sentencing discretion anew considering the amendment to section 1203.1. In the interests of judicial economy and to provide guidance to the trial court, we consider Wilkerson’s challenges to the current order of probation. We conclude the alcohol conditions are reasonable to prevent future criminality given Wilkerson’s history of substance abuse. However, we conclude condition 5 should be modified to allow Wilkerson the choice to attend a substance abuse recovery program that does not require acknowledgement of a higher power. We vacate the current order of probation and remand the matter for resentencing consistent with this opinion. In all other respects, we affirm the judgment. II BACKGROUND According to the probation report, Wilkerson and the victim had recently ended their long-term relationship and the victim moved to a motel. On the morning of September 6, 2019, the victim and Wilkerson went to their former home to clean and remove personal items. When the victim refused Wilkerson’s request to have sex with him, Wilkerson became enraged and left the victim alone at the residence. When the victim returned to the motel, she found Wilkerson in her room. He appeared angry and asked the victim who she “was fucking.” He pulled a knife from his pocket, held it to her throat, and threatened her by saying, “If you don’t tell me who you’re fucking, I’m going to kill you.” The victim screamed, but no one came to her aid. 3  The victim tried to lock herself in the bathroom, but Wilkerson forced his way in and slapped her across the face. As he tried to grab the victim’s cell phone, she pretended she had contacted the police. Wilkerson ran to his car and fled. Police officers subsequently stopped Wilkerson’s vehicle. Officers arrested him after he denied abusing the victim. Wilkerson said he and the victim were under the influence of methamphetamine during the incident and their argument turned physical. Wilkerson admitted he abused methamphetamine and marijuana daily. III DISCUSSION A Probation Term At the time Wilkerson was sentenced, section 1203.1 provided that a trial court may grant felony probation “for a period of time not exceeding the maximum possible term of the sentence[.]” Further, it stated that if the “maximum possible term of the sentence [was] five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years.” (Former § 1203.1, subd. (a).) Effective January 1, 2021, Assembly Bill No. 1950 amended section 1203.1, subdivision (a) to limit the probation term for felony offenses to two years, except in circumstances not present here. (Assem. Bill No. 1950 (Stats. 2020, ch. 328, § 2); Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal. App. 4th 857 , 865.) In supplemental briefing, Wilkerson contends the revised statute applies to this matter because the judgment was not final when the ameliorative amendment took effect and reduced the maximum term of 4 probation to two years. (Estrada, supra , 63 Cal.2d at pp. 744–745.) He asks us to remand the matter with directions for the trial court to resentence him to a term of probation not to exceed two years. The People contend the Estrada presumption that the Legislature intended a statutory amendment reducing criminal punishment to apply retroactively has no application here because probation is not punishment. We agree with Wilkerson that the amendment applies retroactively. In People v. Sims (Jan. 12, 2021, D077024) ___ Cal.App.5th ___ [2021 Cal.App.LEXIS 33] we rejected a similar assertion by the People that the amendment to section 1203.1, subdivision (a) is not subject to the Estrada presumption of retroactivity. We concluded that a probationer is in constructive custody and, therefore, is under restraint. By “limiting the maximum duration a probationer can be subject to such restraint, Assembly Bill No. 1950 has a direct and significant ameliorative benefit for at least some probationers who otherwise be subject to additional months or years of potentially onerous and intrusive probation conditions.” (Sims, at p. ___ [p. *25].) “There is no dispute that the longer a probationer remains on probation, the more likely it is he or she will be found to be in violation of a probation condition. There also is no dispute that the longer a probationer remains on probation, the more likely it is he or she will be sentenced to prison for a probation violation. Assembly Bill No. 1950 does not guarantee that a probationer will abide by his or her probation conditions and, as a result, avoid imprisonment. However, by limiting the duration of felony probation terms, Assembly Bill No. 1950 ensures that at least some probationers who otherwise would have been imprisoned for probation violations will remain violation-free and avoid incarceration. Like the laws at issue in [People v. Superior Court ([Lara]) (2018) 4 Cal. 5th 299 ] and 5 [People v.] Frahs [(2020) 9 Cal. 5th 618 ], Assembly Bill No. 1950 thus ameliorates possible punishment for a class of persons-felony probationers.” (Id. at p. ___ [pp. *26-27].) Because the Legislature did not include a savings clause or otherwise indicate it intended the two-year limitation to apply only prospectively, we concluded “the two-year limitation on felony probation set forth in Assembly Bill No. 1950 is an ameliorative change to the criminal law that is subject to the Estrada presumption of retroactivity” and, therefore, applies to cases such as this where there is no final judgment as of the effective date of the amendment. (Id. at p. ___ [p. *34].) Our colleagues in Division Four of the First District Court of Appeal likewise concluded the Estrada presumption of retroactivity applies to Assembly Bill No. 1950’s two-year felony probation limitation. (People v. Quinn (Jan. 11, 2021, A156932) ___Cal.App.5th ___) [2021 Cal.App.LEXIS 27, *3-12.) Based on an analysis of the legislative history of Assembly Bill No. 1950, the Quinn court concluded that since “the Legislature has determined that the rehabilitative function of probation does not extend beyond two years, any additional period of probation can only be regarded as punitive, and therefore within the scope of Estrada.” (Id. at p. ___ [at p. *12]; see also People v. Burton (2020) 58 Cal.App.5th.Supp. 1, 19.) We agree. Therefore, we remand to allow the trial court to exercise anew its sentencing discretion in light of the amendment. (People v. Buycks (2018) 5 Cal. 5th 857 , 893; People v. Keene (2019) 43 Cal. App. 5th 861 , 865, see also People v. Stamps (2020) 9 Cal. 5th 685 , 709.) 6  B Alcohol Conditions Although we remand for resentencing, in the interests of judicial economy, we consider the merits of Wilkerson’s challenges to the merits of his alcohol conditions on probation. “On appeal, we ‘ “review conditions of probation for abuse of discretion.” ’ [Citation.] Specifically, we review a probation condition ‘for an indication that the condition is “arbitrary or capricious” or otherwise exceeds the bounds of reason under the circumstances.’ ” (In re Ricardo P. (2019) 7 Cal. 5th 1113 , 1118 (Ricardo P.).) We independently review constitutional challenges to probation conditions. (In re I.V. (2017) 11 Cal. App. 5th 249 , 261.) 1 Wilkerson contends condition 5 requiring attendance at Alcoholics Anonymous and condition 11 requiring alcohol testing are both unreasonable under Lent, supra , 15 Cal.3d at p. 486 because alcohol was not involved in the incident and the record does not suggest he has a problem with alcohol. We disagree. A condition of probation or supervision will not be held invalid as unreasonable “ ‘unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Ricardo P., supra , 7 Cal.5th at p. 1118, quoting Lent, supra , 15 Cal.3d at p. 486.) All three prongs of the Lent test must be satisfied before a reviewing court will invalidate a probation term. (Ricardo P., at p. 1118; People v. Relkin (2016) 6 Cal. App. 5th 1188 , 1194.) Relying on People v. Burton (1981) 117 Cal. App. 3d 382 (Burton), Wilkerson contends the conditions are unreasonable under each prong of 7 Lent. In Burton, the defendant was convicted of assault with a deadly weapon for beating a co-worker with a lead pipe following a disagreement about work. (Burton, at p. 385.) The court in that case concluded probation conditions restricting the defendant from using “intoxicants” or visiting any place where intoxicants were sold was unreasonable under Lent because the record was devoid of evidence the crime had any connection to the use of alcohol or an establishment that sold alcohol. There was also no nexus between the crime, the defendant’s “manifested propensities,” and the probation conditions because there was no evidence he “had ever been convicted of an alcohol-related offense and/or that he had manifested a propensity to become assaultive while drinking.” (Id. at p. 390.) Burton is distinguishable from this case. Here, Wilkerson admitted to using and abusing methamphetamine and marijuana daily and stated that both he and the victim were under the influence of methamphetamine during the assault in this case. Our court has long held there is an empirical nexus between drugs and alcohol. (People v. Beal (1997) 60 Cal. App. 4th 84 , 87.) As stated in Beal, “It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. [Citations.] Presumably for this very reason, the vast majority of drug treatment programs … require abstinence from alcohol use.” (Ibid.) Given this connection, we concluded that “alcohol use may lead to future criminality where the defendant has a history of substance abuse.” (Ibid; see also People v. Malago (2017) 8 Cal. App. 5th 1301 , 1308 [upholding alcohol consumption, testing, treatment, and monitoring conditions as a proper exercise of discretion and reasonably related to prevent future criminality where defendant had a history of alcohol, marijuana, and cocaine use]; People 8 v. Balestra (1999) 76 Cal. App. 4th 57 , 68–69 [upholding the trial court’s exercise of discretion in imposing alcohol and drug testing conditions to aid in probation compliance where alcohol involved in elder abuse incident]; see also People v. Lindsay (1992) 10 Cal. App. 4th 1642 , 1645 [alcohol-use condition reasonably related to defendant’s sale of cocaine and future criminality because “[a] person’s exercise of judgment may be impaired by the consumption of alcohol, and …, this could lead to [the defendant] giving in to the use of drugs”].) Recently, in People v. Cota (2020) 45 Cal. App. 5th 786 , we upheld a probation condition restricting use or possession of alcohol where the defendant, who pleaded guilty to carrying a concealed dirk or dagger, admitted he was “a habitual user of methamphetamine and a daily user of marijuana.” (Id. at pp. 788, 792.) Although alcohol was not involved in the incident, we observed that “alcohol is a drug–albeit a legal one” and we again noted the empirical nexus between drugs and alcohol. (Ibid.) “It would make little sense to deprive [a defendant’s] probation officer of the power to direct [a defendant] away from alcohol as a substitute mind-altering substance when his [or her] substance abuse history is so clearly demonstrated.” (Ibid.) Given the defendant’s history of drug use, we concluded the imposition of alcohol-related probation conditions was reasonably related to preventing future crimes. (Ibid.)2 Likewise here, Wilkerson was under the influence of methamphetamine during the incident and admitted he abused 2 The Cota court also rejected an argument that the case was distinguishable from Beal because Cota was not charged with a drug-related offense. Rather, the court concluded the Beal analysis was applicable when considering whether an alcohol condition is reasonably related to future criminality. (Cota, supra , 45 Cal.App.5th at p. 793, fn. 7.) 9 methamphetamine and marijuana daily. Consistent with Cota and Beal, the trial court found “a nexus between the substance abuse” and the conditions “that would include all drugs as well as alcohol.” The court stated, “It appears based upon the probation officer’s report that when the defendant is under the influence of either alcohol or drugs, he has a likelihood of becoming aggressive.” The court reached this conclusion based on Wilkerson’s statement to the probation officer that he regrets the events that led to the offense. The court stated, “I think to be successful on probation, Mr. Wilkerson should stay away from the use of any substances that are subject to abuse, and that would include alcohol.” Although the court noted Wilkerson claimed the victim became aggressive when under the influence, the trial court was justified in concluding Wilkerson’s behavior was also influenced by substance abuse based on the victim’s account of the incident and Wilkerson’s regret about the turn of events. As in Cota, we conclude the alcohol conditions are reasonably related to preventing future criminality given Wilkerson’s history of drug use. The court did not abuse its discretion in imposing the conditions. 2 Wilkerson next contends condition 5’s requirement that he attend meetings of Alcoholics Anonymous violates his rights under the First and Fourteenth Amendments because it requires him to acknowledge the existence of a higher power. We conclude the condition should be modified. Under the Establishment Clause of the United States Constitution, “[n]either a state nor the Federal Government can ... force [a person] to profess a belief or disbelief in any religion.” (Everson v. Board of Education of Ewing Township (1947) 330 U.S. 1 , 15.) “[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate 10 in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ” (Lee v. Weisman (1992) 505 U.S. 577 , 587.) Federal courts have concluded that acknowledgement or reverence for a higher power is a component of the Alcoholics Anonymous program. (Inouye v. Kemna (9th Cir. 2007) 504 F.3d 705 , 712–714 [requiring a parolee to attend AA/NA was unconstitutionally coercive]; Warner v. Orange County Dep’t of Prob. (2d Cir. 1997) 115 F.3d 1068 , 1075-1076, reaff’d after remand, 173 F.3d 120 (2d Cir. 1999), cert. denied, 528 U.S. 1003 , 120 S. Ct. 495, 145 L. Ed. 2d 382 (1999) [conditioning criminal probation on participation in Alcoholics Anonymous violated the Establishment Clause]; see also Kerr v. Farrey (7th Cir. 1996) 95 F.3d 472 , 479–480 [elements of Narcotics Anonymous are “fundamentally based on a religious concept of a Higher Power” and requiring attendance by a parolee runs afoul of the Establishment Clause].) At the sentencing, defense counsel objected to probation condition 5’s requirement for him to participate “in the recovery program of Alcoholics Anonymous” because “Alcoholics Anonymous requires acknowledgement of a higher power as part of their programming” in violation of the Establishment Clause of the First Amendment. When the court asked for a factual basis for the objection, defense counsel stated Wilkerson objected “to having beliefs forced upon him, which is basically establishment[].” The court overruled the objection. We conclude the condition, as written, is unconstitutionally coercive. On remand, should the court grant a term of probation conditioned on participation in a substance abuse program, it should allow Wilkerson the choice to attend an alternative substance abuse program approved by probation that does not require acknowledgement of a higher power. (See 11 O’Connor v. California (C.D. Cal. 1994) 855 F. Supp. 303 , 308 [no violation of Establishment Clause where probationer had a choice of substance abuse program to attend]; In re Personal Restraint of Garcia (Wash. Ct. App. 2001) 106 Wash. App. 625 , 634–635, 24 P.3d 1091 , 1096–1097 [same].) IV DISPOSITION The order granting probation is vacated and the matter is remanded for the court to exercise its sentencing discretion anew in light of the amendment to section 1203.1. If the court grants a term of probation, it shall impose terms and conditions consistent with this opinion. In all other respects, the judgment is affirmed. McCONNELL, P. J. WE CONCUR: BENKE, J. O’ROURKE, J. 12

2021-01-26 22:02:26.325897+00

https://www.courts.ca.gov/opinions/nonpub/E073578.PDF

Filed 1/26/21 P. v. Ricketts CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E073578 v. (Super.Ct.No. RIF103852) JON-PIERRE DANDRAUX RICKETTS, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. 1  FACTUAL AND PROCEDURAL HISTORY A. PROCEDURAL HISTORY On March 22, 2006, a jury convicted defendant and appellant Jon Pierre Dandraux Ricketts of premeditated attempted murder under Penal Code1 sections 664, 187 (count 1); assault with a deadly weapon under section 245, subdivision (b) (count 2); discharge of a firearm from a motor vehicle under section 12034, subdivision (c) (count 3); and being a felon in possession of a firearm under section 12021, subdivision (a) (count 4). The jury found true allegations that (1) race was a substantial motivating factor in committing the crimes under former section 422.75 for counts 1 through 3; (2) defendant committed the crimes with the intent to promote, further, or assist a criminal gang under section 186.22, subdivision (b), for counts 2 and 3; (3) defendant knowingly failed to register his gang-related conviction under section 186.33, subdivision (b), for count 4; (4) defendant personally used a firearm under section 12022.5, subdivision (a), for count 2; (5) defendant was a principal and a principal personally and intentionally discharged a firearm causing great bodily injury under section 12022.53, subdivisions (d), and (e)(1), for counts 1 through 3; and (6) defendant personally inflicted great bodily injury on a person who was not an accomplice under section 12022.5, subdivision (a), for count 2. (People v. Ricketts (Dec. 15. 2008, Unpub. Opn.) E040370, 2008 Cal.App.Unpub. LEXIS 10062 *1-*2 (Ricketts1).) 1 All further statutory references are to the Penal Code unless otherwise specified. 2  On April 20. 2006, the trial court sentenced defendant to state prison for a total term of 81 years eight months to life as follows: 15 years to life plus 25 years to life under section 12022.53, subdivision (d), and four years under section 422.75, subdivision (c), for count 1; nine years plus three years under section 12022.7, subdivision (a), four years under section 422.75, subdivision (c), and 10 years under section 186.22, subdivision (b), for count 2; eight months plus one year under section 186.33, subdivision (b), for count 4. The court imposed and stayed sentencing on all remaining counts and true findings. (Ricketts1, supra , 2008 Cal.App.Unpub. LEXIS 10062, *1-*2) After defendant appealed, we struck the true finding that race was a substantial factor with respect to count 2 and vacated the corresponding four-year sentence. In all other respects, we affirmed the judgment. We directed the trial court to modify the abstract of judgment accordingly. (Ricketts1, supra , 2008 Cal.App.Unpub. LEXIS 10062, *85.) On August 8, 2009, the trial court modified defendant’s sentence to 77 years eight months to life; On September 14, 2018, the Department of Corrections and Rehabilitation (CDCR) wrote a letter recommending resentencing defendant’s conviction under section 245, subdivision (b) (assault with a semiautomatic firearm) and accompanying enhancements under People v. Gonzalez (2009) 178 Cal. App. 4th 1325 . This letter was filed with the court on September 24, 2018. Almost one year later, on August 21, 2019, defendant filed a resentencing brief and asked the court to stay the enhancement under section 12022.7, subdivision (a), the lesser of the two enhancements, as to count 2 under People v. Gonzalez, supra, 178 3 Cal. App. 4th 1325 . Defendant also asked the court to strike the enhancement under section 422.75, subdivision (c), as to count 2 pursuant to this court’s decision on his direct appeal because the abstract of judgment still indicated that the enhancement was stayed. Moreover, defendant asked the court to exercise its new discretion under Senate Bill No. 620 to strike or dismiss one or more of the enhancements under sections 12022.5 and 12022.53. In exercising that discretion, defendant requested that the court consider the “whole host of post-conviction factors” under Assembly Bill No. 1812 “to determine if such resentencing would be in the interest of justice.” On August 28. 2019, the trial court resentenced defendant to a term of 24 years eight months plus 40 years to life in prison, for a total term of 64 years eight months to life.2 The court stayed the enhancement under section 12022.7, subdivision (a), under Gonzales, as recommended by the CDCR and without objection from the People, and struck the enhancement under section 422.75, subdivision (c), pursuant to our remittitur. Furthermore, the trial court exercised its discretion and struck the enhancement under section 12022.5, subdivision (a)(1), and the accompanying 10-year term as to count 2. The trial court declined to strike the other gun enhancements. On September 3, 2019, defendant filed a timely notice of appeal. 2 At the hearing on August 28, 2019, the court pronounced the sentence as 67 years eight months. By minute order dated September 20, 2019, the trial court found “the minute order dated 08/28/2019 does not correctly/clearly reflect the court order and orders it corrected Nunc Pro Tunc. The correction indicates defendant “Sentenced to State Prison for a determinate sentence of 24 yrs 8 mos plus indeterminate sentence of 40 yrs to Life.” 4  B. FACTUAL HISTORY3 “This case arises from a drive-by shooting on May 30, 2002, on Linden Street in Riverside. Jamil Johnson, one of the passengers in the car, testified at trial for the prosecution after entering into a plea agreement. The following background is based primarily on his testimony. “In April 2002, Johnson, Hale[4], and Scott[5] became members of the 1200 Blocc Crips gang (1200 Blocc). 1200 Blocc is a predominantly Black gang and a rival of a Hispanic gang, Eastside Riva or ‘ESR.’ The tension between the two gangs was particularly high in early 2002 when, according to Johnson, there were ‘a lot of shootings going on.’ “On the afternoon of May 30, 2002, Scott was driving his car and Johnson was his passenger. They drove past a pickup truck with people inside who Johnson described as ‘Mexicans,’ and who he assumed were members of ESR. The people in the truck stared at, or ‘mad-dogged,’ them as they drove by; Scott and Johnson mad-dogged them back. The truck made a U-turn and pulled up behind Scott’s car. After Scott sped up to get away, he was pulled over by the police for speeding. 3 The facts underlying defendant’s conviction are from our opinion in Rickets I, supra , 2008 Cal.App.Unpub. LEXIS 10062. 4 Codefendant Charles Lenard Hale, Jr. 5 Codefendant Derrick Anthony Scott. 5  “Scott and Johnson then picked up Hale and drove to Bordwell Park, a gathering spot for 1200 Blocc members. Ricketts, a 1200 Blocc member, was there. Ricketts had been released from prison four days earlier after serving a sentence for auto theft. His gang moniker is ‘Money.’ Scott, Johnson, Hale, and Ricketts were together in an area of the park that had covered picnic tables. They talked and drank beer. According to Johnson, they did not discuss the incident involving the Mexicans in the truck and did not talk about going ‘to shoot any Mexicans.’ “At the park, Ricketts showed the others a nine-millimeter semiautomatic gun in his waistband. Johnson had previously seen Scott with the same gun. When a police car drove by the park, Ricketts placed the gun on top of a covering over the picnic tables. After the police left the area, Ricketts retrieved the gun. “Scott, Ricketts, Johnson, and Hale got into Scott’s car to go to ‘Bobcat’s’ house. Ricketts asked if he could ‘ride shotgun.’ Johnson, who was previously in the front seat, let Ricketts get into the front passenger seat because Ricketts was ‘bigger and needs more room.’ Scott drove, Johnson sat behind Scott, and Hale sat behind Ricketts. Along the way, Ricketts told the others: ‘I’m going to turn you guys into riders.’ A ‘rider,’ Johnson explained, is someone who participates in criminal activity with a gang and supports the gang ‘to the fullest.’ “Bobcat lives on Cranford Avenue. To get to Bobcat’s house from Bordwell Park, they would ‘normally take University’ Avenue, but would sometimes take Linden Street. On this occasion, there was no discussion about taking a particular route to get to Bobcat’s house. At trial, Johnson offered a possible explanation: University Avenue was 6 being patrolled by the police at that time and, because Ricketts was carrying a gun, he (if he was making the decision) would use Linden Street instead of University Avenue to avoid being pulled over by the police. The part of Linden Street they would use to get to Bobcat’s house is within ESR’s territory. “On Linden Street, Gilbert Mauricio and Cecilia Govea were standing outside an apartment building. Mauricio is described by Johnson as ‘a Mexican dude,’ and Govea as a ‘Mexican.’ Scott drove slowly past them. Mauricio mad-dogged them and Johnson mad-dogged him back. Ricketts told Scott to make a U-turn and said that he was going to ‘have his hat.’ Johnson understood this to mean that Ricketts intended to kill him. Scott made the U-turn. Ricketts pulled the gun out of his waistband. Scott stopped the car near Mauricio. Ricketts fired several shots toward Mauricio. Mauricio threw Govea to the ground and covered her with his body. One of the bullets hit S.C., a four-year-old boy, in the foot. As the car drove away, Ricketts yelled, ‘Money Loc, East Coast.’ “According to Johnson, the shooting was not planned and it was a ‘big surprise’ to see Ricketts pull the gun out on Linden Street and start shooting. He said that Hale also appeared surprised. When the shooting began, Johnson and Hale dove ‘for the floorboards in the back seat.’ “After the shooting, Scott drove them to ‘Esco’s’ house. Esco is a ‘shot-caller’ or the Georgia Street Mob or ‘GSM,’ and a ‘big-time gang member.’ GSM is affiliated with, or a subset of, 1200 Blocc. At Esco’s house, Ricketts gave the gun to someone, then used bleach to wash the side of the car and his hands and arms to get rid of gunpowder residue. 7  “After leaving Esco’s house, they drove to Bobcat’s house and then to a movie theater. They planned to ‘sneak’ into the theater to look for movie ticket stubs they could use to build an alibi. When they were unsuccessful, they drove to Johnson’s house. Ricketts told the others, ‘nobody better not snitch.’ When they arrived at Johnson’s house, they were arrested.” (Ricketts, supra , 2008 Cal.App.Unpub. LEXIS 10062, *2- *7.) DISCUSSION A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DECLINING TO STRIKE DEFENDANT’S GUN ENHANCEMENTS Defendant contends that “the trial court erred in declining to strike the Penal Code section 12022.53 firearm enhancement.” For the reason set forth post, we disagree with defendant and find that the court did not abuse its discretion in declining to strike the enhancement. Senate Bill 620, effective January 1, 2018, amended section 12022.53, subdivision (h), to give trial courts discretion to strike firearm enhancements in the interest of justice. As amended, section 12022.53, subdivision (h), provides: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” Section 12022.5 was similarly amended. Subdivision (c) of section 12022.5 states: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” 8  Moreover, “[a] trial court’s power to dismiss under section 1385 may be exercised only ‘ “in furtherance of justice,’ ” which mandates consideration of ‘ “the constitutional rights of the defendant, and the interests of society represented by the People.’ ” ’ (People v. Clancey (2013) 56 Cal. 4th 562 , 280; accord People v. Hatch (2000) 22 Cal. 4th 260 , 268.) “At the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’ ” (People v. Orin (1975) 13 Cal.3rd 937, 945; accord, Clancey, at pp. 580-581.) “[A] court’s exercise of this power is subject to review for abuse of discretion.” (Clancey, at p. 581; see also People v. Carmony (2004) 33 Cal. 4th 367 , 376.) “Where, as here, a discretionary power is . . . by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3rd 308, 316.) Here, after we modified defendant’s judgment on direct appeal, his sentence included the following gun enhancements: (1) consecutive 25 years to life for a principal’s personal and intentional discharge of a firearm causing great bodily injury under section 12022.53, subdivisions (d) and (e), as to count 1; (2) a consecutive 10-year term for defendant’s personal use of a firearm under section 12022.5, subdivision (a), as to count 2; and (3) stayed terms for a principal’s personal and intentional discharge of a firearm causing great bodily injury under section 12022.53, subdivisions (d) and (e)(1), as to count 3. 9  In defendant’s resentencing brief, he argued several factors in support of striking one or more of his gun enhancements under sections 12022.5 and 12022.53, including the absence of a prior strike conviction in his record before this case, his young age at the time of the underlying case, the lengthy original term imposed, and his demonstrated willingness to participate in the rehabilitative programs in prison. Defendant also attached his completion certificates and other documents relating to programs in which had been involved in prison. At the resentencing hearing on August 28, 2019, defendant called three witnesses: two correctional officers and his mother. They testified that they believed defendant had been reformed while he was in prison. Defendant also took the stand and testified that he had changed and had taken responsibility for his conduct. The People asked the trial court to consider the underlying criminal conduct, which occurred in an area with several children present, in addition to the adult victims. Defendant did not “care at that time” when he decided to “shoot up an area.” The trial court stated that it had considered defendant’s resentencing brief and other documents in the underlying case, including the police report and original probation report. The court recognized the progress defendant had made and based on that “good work,” the court struck the 10-year enhancement under section 12022.5, subdivision (a), as to count 2, and the consecutive 10-year term. The court, however, declined to strike the remaining gun enhancement. The court noted that defendant’s underlying conduct was extremely serious and his punishment, as modified at the resentencing, still needed to “fit the crime.” The court stated that defendant had only been out of prison for four days 10 when he “swayed a handgun” around and shot at victims in a public area. The court then went on to state: “I recognize my discretion to strike all of those [enhancements]. At the same time, I think I’ve listed aspects of the crime which I feel, again, the Court appropriately considered when sentencing Mr. Ricketts in the first place. Again, this is a violent, senseless crime that resulted in injury to a four-year-old victim. [¶] Again, I think that the gun enhancements are appropriate, the ones that I’m leaving in place.” Notwithstanding the trial court’s detailed reasons for striking one enhancement but declining to strike the other enhancements, defendant argues that the court abused its discretion because it failed to consider the “entire picture.” In his reply brief, defendant again argues that the trial court abused its discretion “because the circumstances in this case, especially when considering appellant’s years long rehabilitative efforts, reflect appellant’s overall sentence for the instant attempted murder conviction is now unjust.” In essence, defendant is asking us to reweigh the evidence of the factors in mitigation because the People and “the trial court below placed great consideration on the facts involved in the underlying offense.” We disagree. As noted above, the trial court acknowledged considering the facts of the underlying case in addition to all the evidence provided regarding the factors in mitigation. This is precisely the reason why the trial court decided to exercise its discretion and strike one of the gun enhancements. Based on the evidence and the transcript of the hearing on the resentencing, we cannot find that the trial court’s decision was arbitrary, capricious or patently absurd. We therefore find that the trial court properly exercised its discretion in declining to strike the firearm enhancements under section 12202.53. 11  B. DEFENDANT HAS FORFEITED HIS CHALLENGE TO THE RESTITUTION FINE Defendant contends that the trial court’s imposition of a restitution fine without holding a hearing to determine defendant’s ability to pay should be stayed. Defendant argues that “[i]mposing the restitution fine violated [defendant]’s right to due process. (People v. Dueñas (2019) 30 Cal. App. 5th 1157 , 1168, 1172; see also U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.)” The People claim that defendant has forfeited his claim because he failed to raise it first in the trial court. In this case, the trial court imposed a $5,000 section 1202.4 restitution fine at the original sentencing hearing in 2006. The court also imposed and suspended a $5,000 parole revocation fine under section 1202.45. The trial court did not hold a hearing to determine defendant’s ability to pay the fines. Moreover, at the resentencing hearing in 2019, the trial court did not discuss any fines and fees, and maintained the restitution fine at $5,000, as imposed originally. In People v. Dueñas, 30 Cal. App. 5th 1157 , the court held, in pertinent part, that the imposition of a restitution fine, without a determination that the defendant has the present ability to pay the fine, violates a defendant’s due process rights under the state and federal Constitutions. (Id. at p. 1172.) The People contend that, because defendant did not raise his claims in the trial court, his argument has been forfeited. We agree with the People. In People v. Gutierrez (2019) 35 Cal. App. 5th 1027 , Division 1 of our district addressed the emerging body of case law regarding Dueñas and forfeiture of restitution 12 fines. The court pointed out that there exists a potential split in authority on Dueñas and forfeiture principals. At least two cases, People v. Castellano (2019) 33 Cal. App. 5th 485 and People v. Johnson (2019) 35 Cal. App. 5th 1315 , have found that failure to object to the imposition of restitution fines and other fines, fees, and assessments at the time of their imposition did not forfeit the issue because Dueñas was “ ‘a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.’ ” (Gutierrez, supra , at p. 1032, quoting Castellano, at p. 489.) However, in another case, People v. Frandsen (2019) 33 Cal. App. 5th 1126 , the court found that defendant had forfeited the issue for a variety of reasons, including that “even pre- Dueñas governing law permitted a challenge to a maximum restitution fine based on ability-to-pay grounds.” (Gutierrez, at p. 1032.) Nevertheless, Gutierrez held that these cases were not actually at odds. Indeed, the court in Gutierrez ultimately found it “unnecessary to address any perceived disagreement on the forfeiture issue” because “[b]oth Castellano and Johnson “involved situations in which the trial court imposed the statutory minimum restitution fine,” while in the case before them “as in Frandsen, the trial court imposed the statutory maximum restitution fine.” (Id. at pp. 1032-1033.) This was relevant because, “as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute [citation] expressly permitted such a challenge.” (Id. at p. 1033.) According to this reading of Johnson, Castellano, and Frandsen, these cases are not contradictory, but counsel two different approaches depending on whether the challenged restitution fine was the minimum or some amount 13 in excess of that. That is, a defendant can be found to have forfeited his right to challenge a restitution fine on ability to pay grounds only if that fine was greater than the minimum. In this case, we are persuaded by Gutierrez’s reasoning and its reading of Johnson, Castellano, and Frandsen. Accordingly, because the trial court in this case imposed a $5,000 restitution fine—well above the $300 minimum fine, we find that defendant’s failure to object to the restitution fine forfeited his ability to challenge the imposition of the restitution fine. Defendant’s additional argument that his counsel was ineffective for failing to preserve the inability-to-pay issue is without merit. We cannot determine from the record why counsel failed to request a hearing on defendant’s ability to pay at the resentencing hearing. It is possible that defendant did have the ability to pay the fine and assessments and, therefore, counsel made a rational decision not to raise the issue. Moreover, in the absence of a record from which we could determine that defendant did not have the ability to pay, defendant has failed to establish a reasonable probability that, if counsel had raised the issue below, he would have obtained relief. (See Strickland v. Washington (1984) 466 U.S. 688 , 694.) C. THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED Defendant argues, and the People agree, that the trial court failed to calculate his actual custody credits as of the date of resentencing. We agree with the parties. 14  In this case, according to the probation report, defendant was arrested on May 30, 2002. Based on that date, the parties agree that defendant has served 6,300 days of actual custody. We will direct the trial court to amend the abstract of judgment to reflect the number of days that defendant has served in prison as of the date of resentencing. (People v. Buckhalter (2001) 26 Cal. 4th 20 , 23, 37; § 2900.1; People v. Saibu (2011) 191 Cal. App. 4th 1005 ; 1012-1013.) DISPOSITION The trial court is directed to modify defendant’s abstract of judgment to reflect the correct number of days that defendant has served in the custody of the Director of the Department of Corrections and Rehabilitation, in accordance with this opinion. The trial court is directed to forward a certified copy of the amended abstract to the appropriate authorities. (People v. Quinonez (2020) 46 Cal. App. 5th 457 , 467.) In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER Acting P. J. We concur: SLOUGH J. FIELDS J. 15

2021-01-26 22:02:23.994069+00

https://www.courts.ca.gov/opinions/nonpub/B281545.PDF

Filed 1/26/21 Van Taylor v. Ivie CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THRIS VAN TAYLOR, B281545 Plaintiff and Appellant, Los Angeles County Super. Ct. Nos. v. BC268576, BC317765, BS098998 RICKEY IVIE et al., Defendants and Appellants. APPEALS from a judgment and order of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Affirmed. Thris Van Taylor, in pro. per, for Plaintiff and Appellant. Richardson, Fair & Cohen, Manuel Dominguez, Mark Petersen; Ivie, McNeill & Wyatt, Chandler A. Parker; Ivie, McNeill, Wyatt, Purcell & Diggs and Rickey Ivie for Defendants and Appellants. _______________________________________  INTRODUCTION Appellant and cross-respondent Thris Van Taylor (Van Taylor) and respondents and cross-appellants Rickey Ivie and Eloise Ivie (the Ivies) are next-door neighbors. For almost 20 years, they have been involved in a dispute over a narrow strip of land and the block wall between their homes. The dispute has generated three trials and several appeals.1 Van Taylor contends that the block wall and the strip of land are on his property, and he sued the Ivies for trespass, nuisance, assault, and injunctive relief for using the wall and encroaching onto his land. In response, the Ivies claim joint ownership of the wall and seek an easement to use the land. After the third trial in 2016, the jury returned verdicts for Van Taylor on the trespass and nuisance claims and the Ivies’ claim for a prescriptive easement; and the trial court granted a nonsuit on Van Taylor’s cause of action for assault. After a subsequent bench trial on the equitable claims, the court granted Van Taylor a partial injunction, the Ivies an equitable easement, and found that the Ivies did not have an ownership interest in the wall. In this appeal, Van Taylor contends that reversible errors occurred during the jury trial and bench trial. Van Taylor asserts the jury’s $2,000 damages award on his trespass and nuisance claims was insufficient. He further complains that the court erred in instructing the jury and granting a nonsuit on his assault cause of action. Van Taylor also claims that in the bench trial, the court: (1) ignored this court’s directives from the prior appeals concerning the equitable claims; (2) entered an order that 1 Mr. Van Taylor and Mr. Ivie are lawyers. 2 conflicted with the jury’s verdict; and (3) erred in failing to award him additional damages. Finally, Van Taylor contends that he was entitled to an award of litigation costs. In the cross-appeal, the Ivies challenge the court’s failure to grant a judgment notwithstanding the verdict (JNOV) on their cause of action for a prescriptive easement and the court’s ruling in the bench trial denying them an ownership interest in the wall. As we shall explain, the parties have not demonstrated reversible error. Accordingly, we affirm the judgment and the order denying JNOV. FACTS AND PROCEDURAL BACKGROUND 1. The Parties and the Property Since April 1988, Van Taylor has owned a home on the property (known as “Lot 35”) next door to the Ivies’ home on South Halm Avenue in a residential neighborhood of Ladera Heights, an unincorporated area in Los Angeles County. The Ivies purchased their property (known as “Lot 34”) in June 2000.2 Lot 34 and Lot 35 were developed and the parties’ homes were built in the mid-1960s. The legal property line between Lot 34 and Lot 35 is a straight line running east to west, approximately 116.54 feet 2 The fact references are taken from the record filed in this appeal and from this court’s prior opinions in 2005 (Van Taylor v. Ivie (May 23, 2005, B167277) [nonpub. opn.] (Van Taylor I), and in 2012 (Van Taylor v. Ivie (Nov. 19, 2012, B206761 & B225934) [nonpub. opn.] (Van Taylor II).) Our 2014 opinion involved a court-ordered inspection of a fence and Van Taylor’s allegations against Rickey Ivie, his law partner, and an arborist, for assault and invasion of privacy during the inspection; the facts underlying the 2014 appeal are not relevant to this appeal. (See Van Taylor v. Ivie (Feb. 13, 2014, B239275) [nonpub. opn.].) 3 from the front to the back of the lots. Lot 35 is south of the legal property line, and Lot 34 is north of the line. A hedge of vegetation grows approximately 40.5 feet along the north side of the property line from the sidewalk to the front of the homes. A six-foot-tall fence constructed of masonry blocks (the “wall”) divides the lots and runs parallel to the boundary line for approximately 77 feet to the back of the lots.3 The original owners of Lot 34, the Heisers, placed a wooden gate between the corner of the front of their home and the wall. In the 1980s, the second owner of the home on Lot 34, the Frattos, replaced the wooden gate with a wrought iron gate. The upright stem of the wall and approximately four inches of land (the “land”) immediately north of the wall, running the wall’s length, are located south of the legal property line. Thus, the wall and the land are entirely on Lot 35, Van Taylor’s property. However, part of the wall’s subterranean foundation extends three to six inches across the legal property line into Lot 34, the Ivies’ property. During the years before the Ivies purchased Lot 34, trees, including a pear tree, vegetation, electrical outlets, pipes, metal boxes, the wrought iron gate, and other items serving Lot 34, had been placed on the land or attached to the north side of the wall. 3 The wall consists of two components: the six-foot high upright section—the stem—and a subterranean concrete foundation which supports the stem; together the stem and the foundation form the shape of an upside down “T”. The foundation is attached to the wall at the base of the stem and from the base of the stem approximately eight inches of the foundation extends underground on both sides of the wall for the length of the wall. 4 2. The Dispute In March of 2001, this dispute began when Van Taylor and the Ivies discussed Van Taylor’s desire to raise the wall’s height. Van Taylor asked the Ivies to trim the pear tree branches overhanging the wall into his yard. The Ivies refused because they were concerned that cutting the tree might harm it. Van Taylor told the Ivies that he believed that he owned the block wall and the land next to it because they were located entirely on Lot 35. Subsequently, the Ivies commissioned a survey that confirmed Van Taylor’s statement about the legal property line’s location. After that, the Ivies agreed to trim the pear tree to allow Van Taylor to increase the wall’s height. However, when the Ivies and Van Taylor subsequently inspected the Ivies’ backyard next to the wall, Van Taylor requested that the Ivies remove the pear tree because he believed it was growing against the block wall, damaging it. The Ivies trimmed the pear tree but refused to remove it. In December 2001, Van Taylor served a written demand on the Ivies, requesting that they remove all trees, vegetation, electrical equipment, and other items from the wall and the land. 3. The First Trial In February 2002, Van Taylor filed a lawsuit against the Ivies for (1) intentional infliction of emotional distress, (2) trespass, (3) negligent trespass, (4) nuisance, and (5) quiet title. (Super. Ct. Los Angeles County, No. BC268576). He sought a declaration that he was the legal owner of the wall and the land and that the Ivies had no right or interest in the property. He sought compensatory and punitive damages and a permanent 5 injunction directing the Ivies to remove the trees, vegetation from the land, and other items attached to the wall. In April 2002, the Ivies filed a cross-complaint against Van Taylor seeking declaratory relief and an equitable easement or prescriptive easement. At the time, the Ivies did not claim an ownership interest in the wall; the cross-complaint acknowledged that Van Taylor’s predecessors who owned Lot 35 constructed the wall. The Ivies’ request for an easement was limited to using the wall and the land next to the wall to maintain the pear tree, vegetation, and other attachments to the wall. They alleged that they and the two prior owners of Lot 34 (the Heisers and the Frattos) had used and maintained the land north of the wall openly, continuously, and adversely for many years. In February 2003, the court bifurcated the trial and heard the equitable issues first, without a jury. In March 2003, after the bench trial, the court made numerous factual findings, including that (1) a prior owner of Lot 35 built the fence in the mid-1960s, at or about the time the homes were constructed; (2) the owners of Lot 34 had used and maintained the north side of the fence and the narrow strip of land north of the wall for over 30 years; and (3) the upright portion, or stem, of the wall was on Lot 35, while the foundation extended up between four and five inches onto Lot 34.4 The judgment declared the fence a “party wall,” entitling the Ivies to a nonexclusive easement to use and maintain the wall and the land north of the wall. The court further found that the Ivies and Van Taylor jointly owned the pear tree. The 4After the trial, the Ivies stated that they did not intend to pursue the prescriptive easement. 6 judgment also awarded Van Taylor $500 in damages, but denied the nuisance and trespass claims, request for injunctive relief, and found all other issues moot. Van Taylor appealed the judgment.5 4. Van Taylor I Among his contentions on appeal, Van Taylor complained that the trial court erred in finding that the wall was a “party wall,” that the Ivies had failed to establish grounds for an equitable easement, and that the court erred in failing to find that the Ivies committed trespass or a nuisance. Van Taylor further argued that he was entitled to an injunction and a judgment on the Ivies’ prescriptive easement claim because the Ivies had abandoned it. This court affirmed in part6 and reversed in part, and remanded the matter to the trial court. We concluded that the 5 In October 2004, while the appeal was pending, the Ivies filed a separate lawsuit against Van Taylor (Super. Ct. Los Angeles County, No. BC317765) asserting tort claims, alleging that in the fall of 2003 Van Taylor had poisoned the pear tree and other plants north of the fence and that Van Taylor had harassed them. The Ivies also obtained a restraining order against Van Taylor. Van Taylor filed a cross- complaint against the Ivies alleging intentional infliction of emotional distress, assault, trespass, nuisance, and sought an injunction based on claims that in March 2003 the Ivies had attached a wooden lattice to the block wall and that the pear tree, shrubs, and other items continued to encroach on his property. The parties settled the Ivies’ complaint in BC317765. The trial court subsequently ordered all the cases between the parties, including Van Taylor’s cross-complaint in BC317765, consolidated and related for all purposes. 6This court affirmed the trial court’s order rejecting Van Taylor’s emotional distress cause of action. 7 wall did not qualify as a “party wall” as a matter of law because “it is not a wall common to adjoining buildings and does not provide support for adjoining buildings.” We reversed the trial court’s order for an easement for the Ivies and its summary rejection of Van Taylor’s other claims. Finally, we stated that because the Ivies had abandoned their cause of action for a prescriptive easement, Van Taylor was entitled to judgment in his favor on the claim.7 This court guided the trial court on remand. We stated that Van Taylor’s ability to obtain injunctive relief would depend on whether he could prove the torts of continuing trespass or nuisance. And if shown, the trial court should then consider whether to grant an injunction. We instructed the trial court to consider the equities and the relative hardships to both parties and then decide whether to issue an injunction, noting that the trial court should address the question of an equitable easement only if it denied an injunction. We also stated that the trial court must decide whether to declare an equitable easement before ruling on the merits of the quiet title cause of action. 5. The Second Trial In 2007, the Ivies located their home’s original owner, Mrs. June Heiser, who, along with her late husband, had purchased 7 In November 2005, after remand to the trial court, the Ivies filed a motion for relief from default on their cause of action for a prescriptive easement. Their attorney declared that she withdrew the claim in the first trial after the trial court had announced its finding that the fence was a party wall and that she did so because she mistakenly believed that a prescriptive easement was duplicative of other relief awarded by the court. The trial court granted the motion, which allowed the Ivies to revive their claim. 8 the undeveloped Lot 34 in 1964. According to Mrs. Heiser, she and her husband built the home, put in a pool, and moved into the house in 1966. Mrs. Heiser could not recall whether the home on Lot 35 had already been built when she and her husband built their home on Lot 34, nor could she remember whether the wall between the lots had already been constructed at the time. She assumed that her husband had arranged to have the wall constructed. She acknowledged, however, that the fences on the other two sides of her property were constructed of different material and in a different style than the wall between Lot 34 and Lot 35. She stated that she and her husband used their backyard up to the wall, believing that everything enclosed in the backyard was their property. Van Taylor filed a motion for summary judgment. The trial court granted the motion in part. The court concluded as a matter of law that the Ivies could not prove that their use of the wall and the land was hostile and under a claim of right, as necessary to establish a prescriptive easement. The court also rejected the Ivies’ request for an equitable easement, concluding that Van Taylor had suffered more significant hardships than the Ivies. Concerning the counts alleged in Van Taylor’s complaint, the court denied the motion concluding that triable issues of fact existed as to those claims. Before the second trial, the court ruled that its order on the prescriptive and equitable easement claims compelled the court to enter judgment for Van Taylor on his quiet title claim. The court also ruled that prior restraining orders issued against Van Taylor effectively resolved Van Taylor’s assault claim. The court bifurcated the trial on the remaining causes of action. 9  In October 2007, the case proceeded to a jury trial on Van Taylor’s causes of action for trespass and nuisance. After hearing the testimony and evidence, the jury returned a special verdict in favor of the Ivies. In the subsequent bench trial, the trial court granted Van Taylor a permanent injunction and required that the Ivies remove certain items attached to the wall and other items that had encroached onto the land. The trial court did not, however, grant any monetary damages to Van Taylor. The Ivies and Van Taylor appealed. 6. Van Taylor II On appeal, Van Taylor assailed the court’s jury instructions on his counts for trespass and nuisance, and the court’s order preventing him from proceeding on his assault cause of action. In the Ivies’ appeal, they challenged the court’s order granting summary judgment, the order granting an injunction, and the quiet title. They also argued that the evidence demonstrated they were joint owners of the wall. This court reversed and remanded. In Van Taylor II, we concluded that Van Taylor was not entitled to a summary judgment. Concerning the prescriptive easement, we concluded that the trial court had misinterpreted the “adverse use” element of the claim when it concluded that the Ivies could not prove their entitlement to a prescriptive easement as a matter of law.8 8 We held that the trial court erred in finding that the Ivies could not prove the “adverse use” based on the prior owner’s mistaken belief that he owned the land. We pointed out: “use of the property under a mistaken belief that he owned the property constitutes adverse use, and his failure to affirmatively assert a hostile claim [to Van Taylor] is irrelevant.” 10 Concerning the equitable easement, we held that a triable issue of fact existed based on conflicting evidence “as to the extent to which the Ivies’ use of Van Taylor’s property has interfered with the use and enjoyment of his property, the diminution in value of his property resulting from the Ivies’ use and other damages caused by the Ivies’ use.” This court also reversed the judgment for Van Taylor on his claim for quiet title. We further concluded that the trial court improperly dismissed the assault and intentional infliction of emotional distress claims based on an erroneous application of collateral estoppel. In addition, we also reversed the judgment for the Ivies on the trespass and nuisance causes of action. We concluded that the jury instruction and the special verdict form were prejudicially misleading—that the jury instruction erroneously implied that to prevail on his claim of trespass and nuisance, Van Taylor had to prove that he owned, occupied, controlled, and exclusively possessed the property. We also held that based on evidence: “There can be no reasonable doubt that Van Taylor actually occupies the property and that his possessory interest is sufficient to maintain an action for trespass. It is undisputed that the Ivies have encroached on the thin strip of Van Taylor’s land north of the fence and that they intentionally entered the property. It is also undisputed that vegetation from the Ivies’ pear tree has fallen on Van Taylor’s property south of the fence, which provides another basis to establish” liability if the other elements of the claims are met. Consequently, we concluded that on remand, the trial court must instruct the jury that the first element of trespass and nuisance relating to the ownership, occupancy, or possession of the property was conclusively established. 11  This court also held that the trial court erred in entering a permanent injunction for Van Taylor because he had not prevailed on any underlying tort cause of action in the jury trial. We reiterated this court’s direction in Van Taylor I that the trial court first must consider the relative hardships and decide whether to issue an injunction and should address the question of an equitable easement only if it denies an injunction. We held that on remand, the trial court could award a permanent injunction only if Van Taylor established the elements of a tort cause of action and the trial court, after considering the relative hardships, found grounds for equitable relief. Finally, we observed that all the other contentions raised on appeal were moot in light of this court’s conclusions. 7. The Third Trial On remand, the trial court ordered that Van Taylor’s claims for trespass, nuisance, and assault, and the Ivies’ prescriptive easement claim, be tried to a jury, followed by a bench trial on Van Taylor’s claim for quiet title and a permanent injunction and the Ivies’ request for an equitable easement. The jury trial began in February 2016. During his case in chief, Van Taylor presented evidence that the vegetation, including vines, plants, the pear tree, and other trees, concrete pavers, a concrete curb, and dirt had been placed next to the land on Lot 35. Van Taylor also claimed that in 2005, the Ivies or their gardener had entered his property without his permission to trim the pear tree. Van Taylor further testified that before the Ivies purchased the property, he had never been inside the backyard of Lot 34. Van Taylor conceded that he had trimmed the trees and other vegetation that had grown from Lot 34 over the wall into his 12 backyard. However, until the dispute arose with the Ivies, he did not know that the trees and vegetation were growing on the wall or on to the land immediately north of it. He was also unaware that items were attached to the north face of the wall. Van Taylor also presented evidence that he believed showed the pear tree, other vegetation, roots, and water from the Ivies’ landscaping had damaged the wall, the drain pipes on his property, and the foundation of his house. Van Taylor presented an expert engineer who estimated that the trees and vegetation on Lot 34 caused $55,000 in damage to the wall and Van Taylor’s home’s foundation. The Ivies presented evidence that they and the prior owners of Lot 34 were unaware of the legal boundary line’s location between the lots. At the time of purchase, the Ivies were informed that the block wall was a “common wall.” Until 2001, all of the owners of Lot 34 assumed that they owned the land within their enclosed backyard, and they used and maintained the wall and the land immediately next to it. The Ivies also presented evidence that in the 13 years before they purchased the property, Van Taylor had never complained to the prior owners of Lot 34 about how they had used the wall or land next to it. The Ivies also presented evidence that the only items they had placed on the wall or land were the wooden lattice they attached to the wall in 2003 and a sheet of fiberglass that they attached to the front wrought iron gate in 2005.9 They also denied that they or their gardener entered Van Taylor’s yard in 2005 to trim the pear tree; 9The fiberglass sheet was not attached to the wall. According to Van Taylor, the fiberglass sheet blocked his view inside the Ivies’ backyard, and it “crossed into” his property because it was positioned on the gate about one inch from the wall. 13 the Ivies testified that the gardener remained on their property when he trimmed the tree. The jury also heard evidence concerning the parties’ respective ownership claims to the wall and its construction method. Mr. Fratto, who sold the home to the Ivies, testified that he never claimed to own the wall but assumed his property extended to the wall’s face. Van Taylor presented evidence that the wall was constructed of similar material and style as the other walls enclosing his property; however, the other fences enclosing the Ivies’ property did not match the wall in style or construction. The court permitted the Ivies to read Mrs. Heiser’s deposition testimony to the jury. The Ivies’ construction experts opined that the construction method for the wall would likely have required the coordination and cooperation of the owners of Lot 34 and Lot 35. As to his damages, Van Taylor presented evidence from his real estate and property appraisal experts. Van Taylor’s appraiser estimated that the reasonable rental value for the property at issue, which he assumed was 462 square feet, amounted to approximately $217.14 a month for a total of $38,000 for a period between 2001 and 2015. Van Taylor’s real estate expert testified that because of the litigation, Van Taylor lost an opportunity to sell his home in 2006, and that the home was worth $1,000,000 more in 2006 than in 2015. The Ivies’ real estate expert disputed and contradicted Van Taylor’s damage evidence. The expert opined that the diminution in value of Van Taylor’s property and the land was approximately $2,008 based on the value of the property and the size of the land: 19 square feet next to the wall running from the front gate to the back of the lots. 14  Concerning Van Taylor’s assault cause of action, both Mr. Ivie and Van Taylor testified that in August 2005, they were involved in a confrontation in which they argued and shouted threats and expletives at each other as they stood in front of their respective homes. Neither man displayed a weapon nor used threatening gestures, and they remained approximately 15 feet apart throughout the confrontation. At the end of the presentation of the evidence, the Ivies made an oral motion for nonsuit on Van Taylor’s assault claim, which the court granted. After the parties rested, the court instructed the jury. Following this court’s directive in Van Taylor II, the trial court instructed the jury that the first element of trespass and nuisance had been conclusively established. In February 2017, the jury returned a special verdict for Van Taylor on the trespass and nuisance claims. The jury did not, however, make special findings or identify the conduct that constituted trespass or nuisance. The jury also returned a verdict for Van Taylor on the Ivies’ prescriptive easement cause of action, awarded Van Taylor $2,000 in economic damages, and denied him non-economic damages and punitive damages. On March 11, 2016, the court commenced the bench trial on the equitable causes of action. The court indicated that although it was bound by the jury’s factual determinations and would consider the evidence presented in the jury trial relevant to the equitable claims, it would accept additional evidence and argument on the equitable claims. Van Taylor chose not to offer any additional evidence. Van Taylor argued that the relative hardships favored him because he believed he could never sell his home if the court granted the Ivies an easement. The Ivies presented evidence of their economic and non-economic hardships 15 if they had to build a new wall or move the trees, equipment, and other vegetation on the land or attached to the wall. Their experts also testified that building a new wall in the Ivies’ backyard would cost more than $150,000 and leave a portion of the Ivies’ property inaccessible. After both sides rested, the trial court issued its statement of decision. The court granted Van Taylor an injunction in part, issuing an order requiring the Ivies to remove the wooden lattice they had attached to the fence in 2003. In addition, the court ordered that the Ivies could not place new or additional attachments to the wall but denied the injunction as to the other items already on the land and attached to the wall. The court rejected Van Taylor’s argument that the Ivies’ conduct could be described as “willful.” The court found most of the items that Van Taylor wanted the Ivies to remove had been placed on the wall and land by the prior owners of Lot 34, who believed they had a right to use the land next to the wall. As for the fiberglass that the Ivies had placed on the front gate in 2005, the court concluded that Van Taylor had not shown that the minimal encroachment harmed him. The trial court granted an equitable easement, permitting the Ivies to retain the existing attachments to the wall and the plants, trees, vegetation, and dirt on the land. On the issue of damages, the court observed that Van Taylor had argued that he had suffered significant damage in the jury trial but that the jury had awarded him only $2,000. The court concluded that based on the evidence presented, the $2,000 awarded by the jury adequately compensated Van Taylor for the use of the property. The court also rejected the Ivies’ request for a finding that the wall was jointly owned. The court observed that such a 16 finding would be contrary to the evidence presented in the trial and the prior appellate opinions in the case. Finally, the court declined to award costs to either party. In August 2016, the trial court entered the judgment. Van Taylor subsequently filed a motion for a new trial and a JNOV. Van Taylor, among various arguments, complained that the damages were inadequate, that the jury’s verdicts were not supported by the evidence, and that the court’s conclusions in the bench trial were erroneous. The Ivies filed a motion for a JNOV, assailing the jury’s verdict rejecting their prescriptive easement. In February 2017, the trial court denied the motions, concluding that neither Van Taylor nor the Ivies had demonstrated that the verdicts lacked substantial evidentiary support or that its orders were erroneous. Van Taylor timely appealed, and the Ivies filed a timely cross-appeal. CONTENTIONS On appeal, Van Taylor asserts that the trial court erred in failing to grant him a new trial or a JNOV. Specifically, Van Taylor argues that the jury’s damages award on his trespass and nuisance claims was insufficient. He contends the jury should have awarded him damages for rental value, compensation for the diminution in value of his property, and his inability to sell his home, as well as non-economic damages. He further complains that the trial court erred in instructing the jury and granting the Ivies a nonsuit on his assault cause of action. Concerning the bench trial, Van Taylor claims that the trial court: (1) ignored this court’s directives in Van Taylor II concerning the order in which the trial court should consider the equitable claims; (2) entered an order on the equitable claims 17 that conflicted with the jury’s verdict; and (3) erred in failing to award him additional damages. Finally, Van Taylor contends he was entitled to an award of litigation costs. In the cross-appeal, the Ivies challenge the jury’s verdict for Van Taylor on their cause of action for prescriptive easement and the trial court’s conclusion that they did not have an ownership interest in the wall. We address the issues raised in the appeal and cross-appeal seriatim. DISCUSSION 1. Standards of Review Motions for a new trial and JNOV constitute different procedures for “obtain[ing] a judgment contrary to the verdict rendered by a jury.” (Teitel v. First Los Angeles Bank (1991) 231 Cal. App. 3d 1593 , 1602.) A new trial motion provides the trial judge with discretion to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences contrary to that of the jury. (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal. App. 4th 743 , 751 (Fountain Valley).) The trial court’s decision to deny a new trial is reviewed for an abuse of discretion, except that the factual determinations are reviewed for substantial evidence. (Minnegren v. Nozar (2016) 4 Cal. App. 5th 500 , 506.) Under the substantial evidence standard of review, when the trier of fact’s determinations are attacked on the ground that there is no substantial evidence to sustain them, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will 18 support the fact finder’s determinations. (Bowers v. Bernards (1984) 150 Cal. App. 3d 870 , 873–874.) In addition, when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Ibid.) Applying the substantial evidence standard of review, this court resolves every favorable inference and all conflicts in the evidence in favor of the party who prevailed on the issue. (See Kephart v. Genuity, Inc. (2006) 136 Cal. App. 4th 280 , 291.) In contrast, JNOV motions permit a party to prevail when the evidence is legally insufficient to support the verdict. (Fountain Valley, supra , 67 Cal.App.4th at p. 751.) Thus, a trial court may grant a JNOV motion if there is no substantial evidence to support the verdict. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal. App. 4th 1053 , 1057–1058.) In deciding whether to grant the motion, the trial court cannot weigh the evidence or assess credibility. (Castro v. State of California (1981) 114 Cal. App. 3d 503 , 512.) The court views the evidence in the light most favorable to the verdict, disregards conflicting evidence, and indulges in every legitimate inference to support the verdict. (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal. App. 4th 488 , 493–494) “On appeal, we determine de novo whether there is substantial evidence to support the verdict and whether the moving party is entitled to judgment in its favor as a matter of law.” (Id. at p. 494.) 2. Van Taylor’s Appeal Before this court, Van Taylor claims that errors in the jury and bench trials require reversal of the judgment and remand for a new trial. As we shall explain, Van Taylor has failed to 19 demonstrate reversible error occurred during any phase of the trial court proceedings. 2.1. Jury Trial Phase In Van Taylor’s appeal from the jury trial, he complains that the jury’s verdicts on the trespass and nuisance claims were inadequate; he maintains that substantial evidence compelled an award of additional damages. He also contends the court erred in failing to give particular jury instructions and granting the Ivies a nonsuit on his assault cause of action. 2.1.1. Substantial evidence supported the jury’s award of damages on Van Taylor’s trespass and nuisance claims. Van Taylor assails the jury’s verdict awarding him only $2,000 in damages on his trespass and nuisance causes of actions. He argues that the trial court should have granted him a new trial because the jury’s award reflects that it failed to consider his inability to sell his house and the diminution in value of his property. He also contends the jury should have awarded him rental value for the land and the wall and an award of non-economic damages. We disagree. The trial court gave the parties a full and fair opportunity to present their evidence during the jury trial. Van Taylor presented expert opinion on the harm to his property and evidence of his purported economic and non-economic damages. He argued that his property’s value diminished by more than $1,000,000 and asserted that he could not sell the home. He sought an award for damage to the wall, his drain pipes, his home, as well as lost rents and other fees to clean up and repair the property. 20  The Ivies presented evidence and experts to counter and contradict Van Taylor’s arguments and evidence. The Ivies’ experts testified that the Ivies’ use of the land and the wall did not harm Van Taylor or damage his property. Moreover, the Ivies’ real estate experts assessed the diminution in value for the land and wall approximately at $2,000, and they assailed Van Taylor’s claim that he could not sell his home. Van Taylor has not shown that the jury failed to consider his evidence and arguments. Instead, based on the trial’s record, it is clear that the jury rejected Van Taylor’s version of the case. To the extent the evidence at trial conflicted, the jury resolved the conflicts in the Ivies’ favor. The jury, acting as the trier of fact, was free to discard facts inconsistent with its conclusion. In addition, Van Taylor has not convinced us that the evidence that the jury believed was incredible, unreasonable, or improbable. The jury’s verdict awarding Van Taylor $2,000 was consistent with the evidence presented. Moreover, we see no error in the jury’s rejection of Van Taylor’s claim for additional damages such as rental value or his contention that he could not sell his home. He has also failed to present any persuasive argument that the jury erred in failing to award any non- economic damages or punitive damages. “ ‘ “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. … And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” [Citation.]’ ” (Reynaud v. Technicolor Creative Services USA, Inc. (2020) 46 Cal. App. 5th 1007 , 1017.) Because substantial evidence supported the jury’s 21 verdict on the trespass and nuisance causes of action, we conclude the trial court did not err in denying Van Taylor a new trial or denying his motion for a JNOV on the claims. 2.1.2. Van Taylor abandoned his claim of error about the jury instructions. Rule 8.204(a)(1)(B) of the California Rules of Court provides that each point in an appellate brief must be supported by argument and, if possible, by the citation of authority. “An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ... It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant ... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836 , 852, fn. omitted; Landry v. Berryessa Union School Dist. (1995) 39 Cal. App. 4th 691 , 699–700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.”].) Van Taylor argues that the trial court erred when it refused to give the jury particular legal instructions that he had requested.10 However, Van Taylor abandoned any claim of error 10 Specifically he complains that the court should have given the following special instructions: No. 9: the definition of adverse possession; No. 15: Civil Code section 3517-wrongdoers cannot take advantage of own wrong; No. 22: damages for restoration and market value loss from trespass; No. 24: liability for success owners for nuisance created by prior owner; No. 29: emotional distress damages 22 as to these instructions because he did not present any specific argument supported by references to the law or evidence as to why the court erred in failing to give them. Consequently, we do not reach the merits of his complaints about the jury instructions. 2.1.3. The trial court properly granted a nonsuit for the Ivies on Van Taylor’s assault cause of action. Van Taylor’s assault cause of action was based on an August 2005 confrontation between Van Taylor and Mr. Ivie. The undisputed evidence presented at trial showed that Van Taylor and Mr. Ivie shouted threats and expletives at each other as they stood at least 15 feet apart in front of their respective homes. They had no physical contact during the incident, and neither man displayed a weapon or used threatening gestures. At the end of the presentation of the evidence, the trial court granted the Ivies’ motion for nonsuit on the assault cause of action. On appeal, Van Taylor argues that he presented sufficient evidence to submit the claim to the jury, and thus, the court erred in granting a nonsuit. He also complains that the trial court erred by applying the criminal law definition of assault and erred in failing to consider his fear of anticipated harm during the confrontation. We disagree. A defendant is entitled to a nonsuit if the evidence is insufficient for a jury to find in the plaintiff’s favor. (Code Civ. allowed for nuisance; No. 34: damages allowed for unanticipated injury in tort; No. 35: emotional distress damages for trespass and nuisance; No. 36: flexibility in awarding emotional distress damages for trespass; No. 37: Civil Code section 3334-loss of use damages and cost of restoration damages; No. 52: Civil Code section 3294(a)-punitive damages allowed for oppressive and malicious conduct; and No. 53: definition of malice in encroachment cases. 23 Proc., § 581c, subd. (a).) “In determining whether the plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal. 3d 112 , 118.) “ ‘ “[A]n assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” ’ ” (Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590 , 1604 (Plotnik), quoting Lowry v. Standard Oil Co. (1944) 63 Cal. App. 2d 1 , 6–7.) To prevail, the plaintiff must prove, among other elements, that the plaintiff reasonably believed that the defendant was about to touch the plaintiff in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat. (See CACI No. 1301; Plotnik, at pp.1603–1604.) As the appellate court observed in Plotnik, in tort actions for assault, the courts assume that the Penal Code section 240 definition of assault applies. (Plotnik, supra , 208 Cal.App.4th at pp. 1603–1604; see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 381, p. 598.) Penal Code section 240 defines the crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Furthermore, although apprehension of that contact is the basis of assault, “ ‘[m]ere words, however threatening, will not amount to an assault. [Citations.]’ (5 Witkin, Summary of Cal. Law, supra , Torts, § 383, pp. 599–600.)” (Plotnik, at p. 1604.) In Plotnik, for example, the defendants aggressively approached the plaintiff and threatened to kill him and the family dog. Defendants did not, however, display a weapon or 24 otherwise attempt to touch the plaintiff. Although the defendants’ words were aggressive and threatening, neither committed an act that could inflict immediate injury. Consequently, the court concluded the evidence was legally insufficient to support a judgment for the plaintiff on the assault cause of action. (Plotnik, supra , 208 Cal.App.4th p. 1604.) Following Plotnik, we conclude that the trial court properly considered the criminal law definition of assault in assessing Van Taylor’s claim. In addition, even viewing the evidence in a light favorable to Van Taylor and accepting it as true, Van Taylor failed to present sufficient evidence of the required elements of the assault for a jury to find in his favor. As in Plotnik, the situation here did not involve physical contact or weapons. Mr. Ivie directed angry words at Van Taylor from 15 feet away. Van Taylor did not present any evidence that Mr. Ivie could inflict immediate injury, nor did Van Taylor show that his belief that Mr. Ivie was about to touch him in a harmful or offensive manner was reasonable. Thus, the trial court properly granted the nonsuit on the assault cause of action. 2.2. Bench Trial Phase Van Taylor assails the order in which the trial court considered the issues in the bench trial. He claims that the trial court violated this court’s prior directives in Van Taylor II and argues the trial court’s statement of decision conflicted with the jury’s verdict. Finally, he complains the trial court should have awarded litigation costs. 25  2.2.1. The trial court’s conduct and consideration of the equitable claims did not ignore this court’s instructions. In Van Taylor II, we held that on remand, the trial court “must consider the relative hardships to the parties and decide whether to issue an injunction before deciding whether to declare an equitable easement in favor of the Ivies, and that the court could declare an equitable easement in favor of the Ivies only if it denied an injunction.” Here, Van Taylor asserts that the trial court failed to consider his hardships and erred in failing to consider his claim for injunctive relief before considering the Ivies’ claim for an equitable easement. Van Taylor’s assertions fail. Based on the bench trial record, we are not convinced that the trial court disregarded this court’s directives, ignored the evidence, or that the trial court’s method of considering the equitable claims prejudiced Van Taylor. Both the trial court’s remarks during the bench trial and statement of decision disclose that the court considered the evidence and arguments Van Taylor presented in support of the injunction before turning to the Ivies’ equitable claims. At the outset of the bench trial, the court stated that it would consider all the evidence Van Taylor presented during the jury trial as to his hardships. The court also offered Van Taylor the opportunity, which he expressly declined, to present additional evidence of his hardships. Instead, Van Taylor relied on the evidence presented during the jury trial. He argued that the damage to the property, its diminution in value, and his alleged inability to sell his house supported his request for a permanent injunction. The reporter’s transcript of the bench trial 26 shows that the trial court properly considered that evidence and Van Taylor’s arguments. Furthermore, as the trial court’s statement of decision shows, the court addressed Van Taylor’s request for an injunction first; it awarded him a partial injunction on the wooden lattice that the Ivies attached to the wall in 2003, and it issued an order preventing the Ivies from placing any new items on the land or attaching additional items to the wall. The court’s decision also described Van Taylor’s evidence of hardships before describing the Ivies’ evidence. The court’s analysis thus implies that the court weighed the relative hardships regarding the injunction prior to considering the request for an easement. In short, Van Taylor has not convinced us that the trial court ignored his evidence or arguments. Likewise, he has not demonstrated that the order in which the trial court considered the claims violated this court’s directives. 2.2.2. The court’s statement of decision did not conflict with the jury’s verdicts. Van Taylor argues that based on the jury’s verdicts on the trespass and nuisance causes of action the court could not, as a matter of law, consider the Ivies’ hardships on the equitable claims, and he was entitled to judgment on those claims. Specifically, he maintains that the court’s failure to enter judgment in his favor on all the equitable causes of action and the court’s consideration of the Ivies’ hardships conflicted with the jury’s verdicts. Neither of these contentions has merit. 27  a. The court properly considered the Ivies’ hardships. In Van Taylor’s view, the court should not have considered the Ivies’ hardships when deciding the equitable claims. He points out that under Christensen v. Tucker (1952) 114 Cal. App. 2d 554 , 562 (Christensen), defendants who “willfully” trespass cannot ask that the trial court consider their hardships in determining whether to grant them equitable relief. Van Taylor argues that, by concluding that the Ivies trespassed, the jury necessarily found that the Ivies’ conduct was “willful,” and thus the court erred in considering their hardships. In our view, Van Taylor misinterprets the law, and the evidence in this case does not support his position. In Christensen, the appellate court identified the conditions for the trial court to exercise its discretion to issue an equitable easement, including that the “[d]efendant must be innocent—the encroachment must not be the result of defendant’s willful act, and perhaps not the result of defendant’s negligence. In this same connection the court should weigh the plaintiff’s conduct to ascertain if he is in any way responsible for the situation.” (Christensen, supra , 114 Cal.App.2d at p. 563.) Christensen cannot be viewed in isolation. Even before Christensen, California courts recognized that consideration of an encroacher’s hardships was permitted where the trespass resulted from inadvertence or mistake. (See Ukhtomski v. Tioga Mutual Water Co. (1936) 12 Cal. App. 2d 726 , 728–729; Blackfield v. Thomas Allec Corp. (1932) 128 Cal. App. 348 , 350 [characterizing the defendant’s trespass as an “innocent mistake”]; Morgan v. Veach (1943) 59 Cal. App. 2d 682 , 690 [describing the defendant’s “ ‘innocent mistake or oversight’ ”]; 28 Felsenthal v. Warring (1919) 40 Cal. App. 119 , 128 [stating that the trespass must be the result of an “innocent mistake of fact”].) In addition, cases after Christensen recognized that trial courts have broad discretion to determine an encroacher’s “innocence,” based on the evidence in the case. For example, in Linthicum v. Butterfield (2009) 175 Cal. App. 4th 259 , 266 (Linthicum), the court recognized an element of “willfulness” of the encroaching party exists in every case of encroachment in the sense that the encroaching party intended to install a house or a fence and intended to use the property in dispute. Moreover, arguably in every case of trespass, the encroaching party was “negligent” in some sense if, for instance, it failed to have a property line survey done before installing the improvements. Thus, the court held: “The question whether defendant’s conduct is so egregious as to be willful or whether the quantum of defendant’s negligence is so great as to justify an injunction is a matter best left to the sound discretion of the trial court.” (Id. at p. 267) Based on our interpretation of the law and the evidence in this case, we conclude that the jury’s verdict for Van Taylor on the trespass claim did not preclude the trial court from exercising its discretion to consider the Ivies’ hardships. The jury’s verdicts did not identify which of the Ivies’ actions, if any, were “willful.” Indeed, given the evidence presented at trial, the jury could have based its verdicts on conduct that was not willful. The evidence showed that many encroaching actions were inadvertent or the result of an innocent mistake of fact. The prior owners of Lot 34 placed most of the items encroaching on Van Taylor’s property under the belief that they owned the land and had an interest in the wall. 29  Moreover, to the extent that the Ivies engaged in conduct that could arguably be characterized as “willful,” such as attaching the wooden lattice to the wall and the fiberglass to the front gate, Van Taylor did not demonstrate prejudicial, reversible error. The court granted the injunction requiring the Ivies to remove the lattice. The court denied the injunction as to the fiberglass, finding that the encroachment was so minimal that it did not harm Van Taylor. Accordingly, given the evidence and the verdicts, we conclude the court did not err in considering the Ivies’ hardships on the equitable claims. b. The jury’s verdicts did not require the court to enter judgment for Van Taylor on his equitable claims. Where, as here, the legal claims are first tried by a jury and equitable claims later tried by a judge, the trial court must follow the jury’s factual determinations on the issues of fact litigated and necessary to the result. (Hoopes v. Dolan (2008) 168 Cal. App. 4th 146 , 158, citing Los Angeles Police Protective League v. Gates (9th Cir. 1993) 995 F.2d 1469 , 1473.) But, the court’s legal determinations remain separate. (Hoopes, at p. 158.) Van Taylor contends that the jury’s verdicts on the trespass and nuisance causes of action entitled him to judgment, as matter of law, on his quiet title claim and a permanent injunction. We disagree. Although the jury found for Van Taylor on the prescriptive easement, trespass, and nuisance claims, the jury was not presented with a special verdict in which they were required to identify the tortious conduct. The verdicts did not identify any specific factual basis of the jury’s decision. Thus, nothing in the 30 jury’s verdicts conclusively determined Van Taylor’s entitlement to his quiet title or the injunction. Indeed, the legal causes of action and equitable claims are distinct with separate legal elements. For example, the injunction request required the court to weigh the parties’ respective hardships—a matter outside the province of the jury’s determination. Thus, we find no inherent inconsistency between the court’s ruling on the equitable claims and the jury’s verdicts. Van Taylor has not shown as a matter of law that the jury’s verdicts compelled the court to enter a judgment for Van Taylor on his equitable claims. 2.2.3. The court did not err in failing to award Van Taylor damages when it granted the Ivies an equitable easement. Van Taylor asserts that because the court granted the Ivies an equitable easement, the court was also required to award him damages in addition to those the jury awarded for the trespass. Not so. In Linthicum, the appellate court held the trial court is not required to order additional damages when the trial court creates an easement by denying an injunction. (Linthicum, supra , 175 Cal.App.4th at p. 268 [awarding an equitable easement, but not an award further damages to the defendant]; see also Tashakori v. Lakis (2011) 196 Cal. App. 4th 1003 , 1014 [holding that the trial court did not err when it failed to award any damages to the plaintiffs in compensation for the equitable easement on their property].) The Linthicum court also recognized that the trial court could not award damages in the abstract. Even where the court grants an easement to the defendant, the plaintiff must prove 31 damages. (See Wardrop v. City of Manhattan Beach (1958) 160 Cal. App. 2d 779 , 791.) Here the court permitted Van Taylor to present evidence and argument on his damages, including those he would incur if the court granted the Ivies an easement. The court’s statement of decision reflects that the court determined that Van Taylor had not carried his burden to prove that he was entitled to any damages in addition to those that the jury had already awarded. The evidence showed the Ivies’ use of the land and the north face of the wall did not cause Van Taylor substantial harm. Under the circumstances, the trial court did not err in failing to award any additional damages to Van Taylor. 2.2.4. The trial court did not err in failing to award Van Taylor costs. Under Code of Civil Procedure section 1032, a “prevailing party” is entitled to recover costs “as a matter of right” unless otherwise provided by statute. (See Code Civ. Proc., § 1032, subd. (b).) If, however, a plaintiff brings an action in superior court and recovers a judgment within the $25,000 jurisdictional limit of the limited jurisdiction court, the trial court has the discretion to deny costs to the plaintiff. (Code Civ. Proc., § 1033, subd. (a); Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970 , 975 [recognizing that if the prevailing party recovers a judgment that could have been rendered in a limited civil case, Code of Civil Procedure section 1033, subdivision (a) provides that costs or any portion of claimed costs shall be as determined by the court in its discretion].) Likewise, where a party obtains relief in equity, determining whether to award costs is within the discretion of the court under Code of Civil Procedure section 1032, subdivision 32 (a)(4). (See Code Civ. Proc., § 1032, subd. (a)(4); Wakefield v. Bohlin (2006) 145 Cal. App. 4th 963 , 977 [section 1032, subdivision (a)(4) operates as an express statutory exception to the general rule that a prevailing party is entitled to costs as a matter of right], disapproved on other grounds in Goodman v. Lozano (2010) 47 Cal. 4th 1327 , 1338.) We review the trial court’s denial of costs under Code of Civil Procedure sections 1033, subdivision (a) and 1032, subdivision (a)(4) for abuse of discretion. (See Dorman v. DWLC Corp. (1995) 35 Cal. App. 4th 1808 , 1815.) Van Taylor has not demonstrated any error concerning the court’s decision denying him litigation costs. First, contrary to his argument on appeal, Van Taylor was not entitled to an award of costs as a matter of law. In this case, the $2,000 award was within jurisdictional amount of the limited civil courts, and the relief the court awarded in the bench trial was equitable. Thus, the request for costs was governed by the Code of Civil Procedure sections that granted the trial court discretion to deny costs. Second, Van Taylor has not shown that the court abused its discretion in denying costs. As the court’s order reflects, the results of the trial were mixed. Neither side achieved all the relief they sought. The court’s order further reflects that it considered the parties’ claims and litigation objectives, deciding to deny costs. Under the circumstances, the court’s order does not exceed the bounds of reason. 3. The Ivies’ Cross-Appeal In the cross-appeal, the Ivies challenge the jury’s verdict for Van Taylor on their cause of action for a prescriptive easement and the court’s finding that they did not have an ownership interest in the wall. 33  3.1. Jury Trial Phase The Ivies argue that the trial court erred in failing to grant them a JNOV on their cause of action for a prescriptive easement on the land and wall. They assert that substantial evidence did not support the jury’s verdict for Van Taylor on the claim. “ ‘ To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.’ ” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal. App. 4th 1044 , 1054; Code Civ. Proc., § 321.) These elements are designed to ensure “ ‘that the owner of the real property which is being encroached upon has actual or constructive notice of the adverse use and to provide sufficient time to take necessary action to prevent that adverse use from ripening into a prescriptive easement.’ ” (Brewer v. Murphy (2008) 161 Cal. App. 4th 928 , 938–939 (Brewer).) Constructive notice may arise from “ ‘actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact.’ ” (Field-Escandon v. DeMann (1988) 204 Cal. App. 3d 228 , 236.) “To satisfy this requirement, the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent. “Open” generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. “Notorious” generally means that the use is actually known to the owner, or is widely known in the neighborhood.” (Rest.3d Property, Servitudes, § 2.17, com. h. pp. 276, 278.) Prescriptive rights do not arise if the adverse use was hidden, concealed, or clandestine. (Connolly v. McDermott (1984) 162 Cal. App. 3d 973 , 977.) 34  A finding of a prescriptive easement must be based on clear and convincing evidence. (Brewer, supra , 161 Cal.App.4th at p. 938.) The evidence must be “ ‘ “ ‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’ ” ’ ” (Amerigraphics, Inc. v. Mercury Casualty Co. (2010) 182 Cal. App. 4th 1538 , 1558.) On appeal, we review a finding that a prescriptive easement does exist, or does not exist, by determining whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. (See Conservatorship of O.B. (2020) 9 Cal. 5th 989 , 995–996; Felgenhauer v. Soni (2004) 121 Cal. App. 4th 445 , 449.) The Ivies contend they proved the elements of the prescriptive easement as to the land and the wall based on (1) the testimony of the prior owners of Lot 34 that they used the land and the wall for an uninterrupted period of more than five years before the dispute arose; and (2) evidence that Van Taylor was aware of their use and did not complain about it. Even if the Ivies proved the adverse use of the property for the requisite five-year statutory period by “tacking”11 their use to the prior owners’ use and they presented evidence establishing all the other elements, the evidence that the use was “open and notorious” was not clear or convincing. 11“Periods of prescriptive use by successive owners of the dominant estate can be tacked together … .” (Windsor Pacific v. Samwood Co., Inc. (2013) 213 Cal. App. 4th 263 , 264; see also Miller v. Johnston (1969) 270 Cal. App. 2d 289 , 295 [party seeking to establish prescriptive easement is “entitled to take advantage of the use made of the property in dispute by [his or her] predecessors in interest”].) 35  Based on the evidence presented at trial, the jury could have reasonably concluded that the Ivies’ use of the land and wall was not open or notorious because Van Taylor did not have actual or constructive notice of it. First, they did not present evidence to prove that Van Taylor had actual notice of their use of the land and wall, nor did they refute his testimony to the contrary. Van Taylor testified that he could not see into their yard and testified that before early 2001 he had never been inside the Ivies’ backyard. He told the jury that he trimmed the Ivies’ tree from his side of the wall and believed that the vegetation was not planted on the land. He stated that before the dispute arose in this case, he was unaware that the Ivies or the prior owners had placed anything on the land or attached anything directly to the wall. The Ivies have not shown that Van Taylor’s testimony was incredible or inherently improbable. Thus, as the trier of fact, the jury acted within its authority to believe Van Taylor’s account, and therefore conclude he lacked actual knowledge of their adverse use of the land and wall. In addition, the evidence on the issue of constructive notice supports the verdict for Van Taylor. Given that the land at issue is only three to four inches wide, is immediately next to the wall, and is surrounded by fencing and vegetation, a reasonably diligent owner might not be aware of any adverse encroachment onto the land or use of the wall. Moreover, the Ivies did not present evidence that their use of the land and wall was known in the neighborhood. Accordingly, we conclude substantial evidence supports the jury’s verdict for Van Taylor on the Ivies’ prescriptive easement cause of action, and the trial court did not err in denying the Ivies a JNOV on that cause of action. 36  3.2. Bench Trial Phase The Ivies’ challenge to the court’s order from the bench trial focuses on the court’s finding that the evidence did not support the conclusion that the wall was a “joint wall,” and the court’s additional observation that “such a finding would be contrary to the prior appellate decisions issued in this matter.” The Ivies assert that they established an ownership interest in the wall, and thus, this court should reverse the injunction requiring that they remove the wood lattice from the wall and preventing them from attaching any new items to the wall. 3.2.1. The Ivies did not demonstrate that the trial court misinterpreted the prior appellate opinions. The Ivies argue that the trial court misread this court’s opinions in Van Taylor I and Van Taylor II and thus inferred a conclusion about the wall ownership that this court did not previously reach. In our view, this court’s opinions in Van Taylor I and Van Taylor II are open to the interpretation the trial court gave them in the bench trial. Preliminarily, we observe that this court’s prior opinions cannot be considered in a vacuum; they must be viewed in the context within which the parties litigated and presented their respective cases during the first and second trials. Initially, the Ivies did not claim an ownership interest in the wall and did not contest Van Taylor’s ownership. In their cross-complaint, they acknowledged that the wall belonged to Van Taylor. The Ivies’ counsel also conceded that they did not present evidence supporting their ownership claim at the first trial. During the first trial the court found the original owner of 37 Van Taylor’s property built the wall. After that, concluding that the wall did not qualify as a “party wall” as a matter of law, this court in Van Taylor I did not revisit the trial court’s other findings concerning the wall. Thus, in light of the first trial’s posture—the pleadings and the trial court’s findings—this court’s opinion in Van Taylor I could be interpreted in many ways, including, as the trial court did here. Van Taylor II is also open to the interpretation that the trial court gave it in the statement of decision. During the second trial, the Ivies claimed they had a joint ownership interest in the wall based on the original owner’s, Mrs. Heiser, statements about the wall’s construction, and the fact that the foundation was partially on Lot 34. After that, on appeal in Van Taylor II, the Ivies argued, among other claims of error, that the trial court erred in failing to find they were joint owners of the wall. In Van Taylor II, this court acknowledged the Ivies claimed an ownership interest to the wall. This court did not, however, explicitly address the issue. Instead, this court broadly concluded that Van Taylor had established the first element of trespass for the retrial. Thus, this court directed that on remand, the jury should be instructed that Van Taylor owned, occupied, controlled, or had the exclusive right to possess the property. Our conclusion about the property was not confined to the land; in this context, “property” could be interpreted to include the land and the wall. Subsequently, in the opinion, this court stated that all of the Ivies’ other contentions, which included their claim of joint ownership of the wall, were moot in light of the conclusions in the opinion. Thus, read as a whole, the opinion in Van Taylor II can be construed as implicitly rejecting the Ivies’ claim of joint ownership of the wall. Indeed, the trial court’s comments during 38 the third trial reflect that the court read Van Taylor II to hold that Van Taylor had established that he owned the land and the wall—that ownership interest in the land and the wall had been previously established in the second trial and affirmed in Van Taylor II. Thus, we conclude that this court’s opinions in Van Taylor I and Van Taylor II are susceptible to more than one interpretation, including the one the trial court applied in its statement of decision. Consequently, the Ivies have not shown reversible error concerning the trial court’s interpretation of this court’s prior opinions. 3.2.2. The evidence presented in this trial supported the trial court’s finding on the ownership of the wall. In any event, even if we determined that the trial court had misconstrued our prior opinions concerning the wall’s ownership, we would nonetheless conclude that the court did not err finding that the Ivies had failed to prove joint ownership of the wall in the third trial. The evidence presented at trial on the ownership of the wall conflicted. On the one hand, Van Taylor claimed exclusive ownership based on (1) evidence he presented during the first trial as reflected in the trial court’s decision that the original owner of Lot 35 built the wall; (2) the fact that the stem of the wall and most of the foundation is located on Lot 35; (3) the fact that the construction, style, and appearance of wall matched the other walls on Lot 35; and (4) that the other fences in the Ivies backyard did not match the wall. On the other hand, the Ivies claimed joint ownership based on (1) the evidence from Mrs. Heiser; (2) the fact that the four to six inches of the wall’s 39 foundation are on Lot 34; and (3) the fact that according to their experts, the wall must have been constructed with the cooperation of the owners of both lots. The trial court’s decision reflects that it resolved this conflict in the evidence in favor of Van Taylor. Based on our review of the record and considering the deferential standard of appellate review, we cannot say that the court erred in resolving the dispute. The evidence supporting the trial’s conclusion is substantial, and thus the court acted within its power as the trier of fact in deciding that the wall was not jointly owned.12 In view of the foregoing, we conclude that the Ivies have not demonstrated that the trial court committed reversible error in the bench trial. 12 In reaching this conclusion, we reject the Ivies’ request raised in a footnote in their opening brief in the cross-appeal that this matter should be returned to the trial court to consider the application of Civil Code section 841, governing the rights and responsibilities of neighbors with respect to “division walls.” The Ivies do not present any argument that section 841, which was not operative until more than 10 years after the lawsuit was filed in this case, should be given retroactive effect. 40  DISPOSITION The judgment and order denying the parties’ requests for JNOV are affirmed. Each party shall pay its own costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS LAVIN, J. WE CONCUR: EDMON, P. J. EGERTON, J. 41

2021-01-26 22:02:27.950962+00

https://www.courts.ca.gov/opinions/nonpub/G058251.PDF

Filed 1/26/21 P. v. Lapham CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, G058251 Plaintiff and Respondent, (Super. Ct. No. 17HF0040) v. OPINION RICHARD WILLIAM LAPHAM, Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed. Law Office of Edward M. Robinson, Edward M. Robinson, and Rachael A. Robinson for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent. * * *  A jury convicted Richard William Lapham of several sexual offenses against his granddaughter, R.C., including continuous sexual abuse of a child (count 1; 1 Pen. Code, § 288.5, subd. (a)), oral copulation (count 5; § 288a, subd. (c)(1)), and sexual 2 penetration by a foreign object (count 7; § 289, subd. (j)). The jury found Lapham committed all the offenses when his granddaughter was less than 14 years old. The trial court had earlier dismissed on the prosecutor’s motion oral copulation and sexual penetration counts allegedly committed when R.C. was 10 years old or younger (counts 2 and 3). At sentencing, the court also dismissed pursuant to section 1385 additional counts on which the jury had convicted Lapham for a lewd and lascivious act (count 4; § 288, subd. (a)) and oral copulation (count 6; § 288a, subd. (c)(1)). The trial court sentenced Lapham to 20 years in prison; 16 years on count 1, two years consecutive on count 5, and another two years consecutive on count 7. Lapham contends the trial court erred in failing to grant his new trial motion (§ 1181). His motion sought acquittal on grounds that the proof at trial on count 1 did not align with the dates between which he was alleged to have committed continuous sexual abuse. Lapham argues, as he did below, that R.C.’s testimony could only be understood to indicate the abuse began after the dates alleged for count 1. Lapham also asserts that the conduct underlying count 1 necessarily included the sexual penetration alleged in count 7, making it duplicative and requiring dismissal. As we explain, these contentions are without merit, as is the belated request at the end of respondent’s brief for us to overturn the trial court’s dismissal of counts 4 and 6, which respondent did not appeal. 1 All further statutory references are to this code. 2 We note that the offense of sexual penetration by a foreign object includes digital penetration. (§ 289, subd. (k).) 2  FACTUAL AND PROCEDURAL BACKGROUND We need to consider little background to resolve Lapham’s contentions, so we will set it out briefly. The prosecutor alleged in count 1 that the date range in which Lapham committed the requisite three or more sex acts over a minimum of three months to constitute continuous sexual abuse (see § 288.5) occurred sometime between August 12, 2011 and August 12, 2014. R.C.’s birthday was on August 13th. Based on R.C.’s age at the time she testified (14) and her grade level (9th), the prosecutor elicited that on her birthday each year, she “would have just turned however old you’re going to be for that . . . school year.” R.C.’s mother confirmed that R.C.’s school year annually commenced soon after her birthday. Working backward from the fact that R.C. was 14 and in ninth grade when she testified, the prosecutor established that she was 10 years old in fifth grade. Based on the evidence produced at trial and the dates alleged in the information, it can reasonably be inferred that the continuous abuse alleged in count 1 occurred when R.C. was in second, third or fourth grade. When the prosecutor asked R.C., “When did the touching begin? Do you remember how old you were,” she answered, “If I would tell you a number, it wouldn’t be exact. I can’t remember.” When the prosecutor asked her, “Do you remember what grade you were in when it started,” she answered that it was “probably fifth grade.” (Italics added.) R.C. also testified that the touching originally had begun with her awaking on the couch or in Lapham’s bed to him rubbing her vagina or grabbing her breasts, or both, and only later escalated to him licking her vagina and digitally penetrating her. She testified the oral copulation did not start until the next school year after the more general touching began, and the same was true for putting his fingers inside her. When the prosecutor asked R.C., “When was the last time that he touched you,” she responded she was “about to turn 13.” She clarified on the prosecutor’s further 3 questioning that “in December 2016 when [she] met with police officers,” she was “12 years old” and therefore that she had reported the abuse when “I guess I was 12.” That suggested that the “very last incident” of abuse, which was of the escalated variety occurred when she was 11 years old. The court instructed the jury that “the crimes [did] not have to be proven to [have] occurred on a particular day but reasonably close to the days that were pled . . . .” In denying Lapham’s new trial motion seeking acquittal after his conviction, the trial court observed, “Counsel will recall the jury inquired about th[e] issue of date range, and . . . the jury was instructed that—and that was without there being an objection from the defense”—that “it had to happen on or about and between or reasonably close to those dates.” The court concluded, “[T]he jury heard all the evidence, and I’m not going to overturn their verdict as to that count,” i.e., count 1. DISCUSSION Lapham contends the evidence required the trial court to grant his new trial motion requesting acquittal on count 1, based on R.C.’s testimony that he began abusing her in fifth grade. He observes that the date range the prosecutor alleged for count 1 ended on August 12, 2014, just before her 10th birthday, which would have been just before she started fifth grade. He therefore reasons that there was no evidence he committed continuous sexual abuse when R.C. was in fourth grade or earlier, which was the time frame encompassed by the dates the prosecutor alleged for count 1. We disagree. A criminal defendant may move for a new trial on specified grounds, including that the verdict was contrary to the law or evidence. (§ 1181, subds. 6, 7; see People v. Ault (2004) 33 Cal. 4th 1250 , 1260.) The motion requires the trial court “to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict.” (People v. Dickens (2005) 130 Cal. App. 4th 1245 , 4 1251.) “Although the trial court is to be ‘guided’ by a presumption in favor of the correctness of the jury’s verdict [citation], this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence.” (Ibid.) “The trial court is not bound by the jury’s determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence.” (Ibid.) If it subjectively views the evidence as “not sufficiently probative to sustain the verdict, it must order a new trial.” (Id. at p. 1252.) Based on its comments, the trial court understood this standard when it denied Lapham’s new trial motion. In any event, the mere fact that the trial court is not bound by the jury’s findings does not mean the court should have ordered a new trial here. The new trial remedy is limited, as reflected in our deferential standard of review. “A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.” (People v. Hayes (1999) 21 Cal. 4th 1211 , 1260-1261.) Lapham does not meet that standard here. Simply put, the issue raised by Lapham involved questions of fact which the jury resolved against him. After hearing all the evidence, the jury reasonably could conclude R.C. was mistaken at trial about her dates. Nothing required the trial court to disagree. R.C.’s initial testimony about when the abuse ended was consistent with the conclusion her timeline was off by a year—so that the continuous abuse she estimated might have begun when she was in fifth grade actually began in fourth grade, as alleged in count 1. R.C. specified at the outset that her date, age, and grade estimates were inexact. The earlier time frame aligned with her description of how the abuse escalated 3 after it began. 3 Additionally, Lapham did not object on hearsay or other grounds to the prosecutor’s reference to R.C. telling the social worker that the digital penetration occurred in fifth grade, supporting an earlier timeline for commencement of the lesser, 5  We agree with Lapham that the prosecutor’s presentation of evidence did not clearly and explicitly set out a timeline that corresponded to the allegations in count 1. The prosecutor himself inadvertently gave an accurate but ultimately nonfatal assessment of his efforts: “I’m going to try to do some math, which is not going to go well for me.” But the trial court instructed the jury that it was “up to all of you, and you alone, to decide what happened” and “what the facts are” in the case (CALCRIM No. 200), including the timeline of events and “what evidence, if any, to believe” (CALCRIM No. 302). The jury, in evaluating R.C.’s testimony about the alleged abuse, was not required to conclude that it began in fifth grade. “The jury [is] free to believe some of [a witness’s] statements and to disbelieve other statements.” (People v. Wader (1993) 5 Cal. 4th 610 , 641.) As has long been held, “a reasonable inference drawn from circumstantial evidence may be believed as against direct evidence to the contrary.” (Bohn v. Watson (1954) 130 Cal. App. 2d 24 , 34.) Nothing required the trial court to interfere with the jury’s timeline determination by ordering a new trial. Lapham’s abuse of discretion challenge therefore fails. The foregoing analysis similarly disposes of Lapham’s challenge to count 7. The jury reasonably could conclude the conduct alleged in count 1, as proven at trial, did not overlap with the conduct alleged in count 7. To the contrary, the court instructed the jury that the counts involved distinct time frames: count 1 allegedly being “committed on or about and between August 12, 2011, and August 12, 2014,” while count 7 was committed during the succeeding period from “August 13, 2014 [to] July 31, 2016.” This corresponded to R.C.’s testimony that the escalated abuse alleged in count 7, continuous abuse. Absent a specific objection, hearsay evidence is competent to support a judgment. (Flood v. Simpson (1975) 45 Cal. App. 3d 644 , 649; Evid. Code, § 140, Law Rev. Com. Comment [“‘Evidence’ is defined broadly to include[] anything offered in evidence,” including hearsay, which “may be considered in support of a judgment”].) 6 including digital penetration, occurred after the timeframe in count 1 ended. There is no merit to Lapham’s bid for reversal of count 7. Finally, respondent contends for the first time at the close of its appellate brief that the trial court was confused about the time frame in which counts 4 and 6 occurred or were alleged to have occurred, and therefore we should reverse the court’s dismissal of those counts. The People could have appealed (§ 1238, subd. (a)(6)) the trial court’s sentencing order dismissing the counts but for whatever reason elected not to do so. A prosecutor’s failure to appeal shows “tacit accord with the actions of the court.” (Mitchell v. Orr (1969) 268 Cal. App. 2d 813 , 817.) We therefore treat the issue as waived. DISPOSITION The judgment is affirmed. GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J. 7

2021-01-26 22:02:24.27601+00

https://www.courts.ca.gov/opinions/nonpub/B297960.PDF

Filed 1/26/21 Tricoast Builders v. Lakeview Loan Servicing CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO TRICOAST BUILDERS, INC., B297960 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. PC056615) v. LAKEVIEW LOAN SERVICING, LLC et al., Defendants and Respondents. APPEAL from a judgment and order of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed. Connette Law Office and Michael T. Connette for Plaintiff and Appellant. Houser, Robert W. Norman, Jr., and Timothy A. Schneider for Defendants and Respondents. ______________________________  Plaintiff and appellant TriCoast Builders, Inc. (TriCoast) appeals from a judgment entered in favor of defendants and respondents Lakeview Loan Servicing, LLC (Lakeview) and Cenlar FSB (Cenlar) (collectively defendants) following the trial court’s order sustaining a demurrer without leave to amend as to two causes of action and order granting summary judgment on the remaining two causes of action. TriCoast also appeals from a postjudgment order in which the court declined to set aside the order granting summary judgment. TriCoast contends that the court erred by (1) sustaining defendants’ demurrer without leave to amend; (2) not ordering a continuance of the hearing on defendants’ motion for summary judgment or, in the alternative, summary adjudication; and (3) not setting aside the order granting summary judgment. We affirm. FACTUAL BACKGROUND1 Nathaniel Fonnegra (Fonnegra) was the owner of a residential property located in Santa Clarita (property). On December 20, 2013, Fonnegra executed a promisory note for $372,000 in favor of Bankers Xpress, LLC. The note was secured by a deed of trust for the property, which was executed on December 20, 2013, and recorded on December 27, 2013. 1 The underlying facts summarized in this section are taken from the pleadings, evidence submitted in support of defendants’ motion for summary judgment/adjudication, and points of agreement in the parties’ appellate briefs. The summary is provided for context only. We resolve the specific issues raised by TriCoast on appeal based on the allegations in the second amended complaint and relevant procedural matters that are summarized in the procedural background section, infra. 2  In May 2014, the property was damaged by a fire. The insurer of the property issued a check for repairs, which was endorsed over to the servicer or subservicer of Fonnegra’s loan, Pacific Union Financial, LLC (Pacific Union). In June 2014, Fonnegra entered into a contract with TriCoast, a general building contractor, for the provision of construction services, labor, and materials to repair the property. When the job was 65 percent complete, Pacific Union inspected TriCoast’s work and, in early July 2015, issued a check for $43,641.50 payable to TriCoast and Fonnegra. Because Fonnegra did not endorse the check over to TriCoast, the check eventually went stale. According to TriCoast, it received “assurances of payment” by Fonnegra and G.D. Baca, Inc. (public adjuster) and continued its work on the property until it was about 85 percent complete. The contract between Fonnegra and TriCoast was terminated by Fonnegra on or about July 17, 2015. On September 3, 2015, TriCoast recorded a mechanic’s lien against the property in the amount of $99,805.05. The lien was recorded after TriCoast had ceased its work under the contract. Meanwhile, on or about July 16, 2015, Pacific Union transferred Fonnegra’s loan and $27,343.54 in insurance proceeds to defendants, with Lakeview as the servicer and Cenlar as the subservicer.2 Pacific Union held back $43,641.50 of the insurance proceeds to cover the check it had issued to Fonnegra and TriCoast. After that check went stale, Pacific Union transferred the $43,641.50 to defendants. 2 According to TriCoast, Lakeview was also the servicer of the loan prior to July 16, 2015, with Pacific Union as the subservicer. 3  In January and March 2016, Cenlar issued checks in the amounts of $40,000 and $30,985.04 to Fonnegra and his new contractor, Whitehouse Construction, Inc. (Whitehouse). PROCEDURAL BACKGROUND I. The Operative Complaint In the operative second amended complaint, TriCoast asserted four causes of action against defendants: foreclosure of mechanic’s lien, tortious interference with contractual relations, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage.3 The foreclosure of mechanic’s lien cause of action was based on allegations that defendants “may” have had “some right, title, or interest” in the property, but that such claims were “subject and subordinate to” TriCoast’s lien. The basis for the interference causes of action was that defendants disrupted Fonnegra’s performance of his contract with TriCoast by knowingly issuing a check to Fonnegra’s new 3 In addition to these causes of action against defendants, TriCoast asserted the cause of action for foreclosure of mechanic’s lien against Fonnegra; the causes of action for tortious interference with contractual relations and intentional interference with prospective economic advantage against the public adjuster, Whitehouse, and Pacific Union; and the cause of action for negligent interference with prospective economic advantage against the public adjuster and Pacific Union. TriCoast also asserted causes of action for breach of contract and for reasonable value of services rendered and goods provided against Fonnegra. Fonnegra, Pacific Union, Whitehouse, and the public adjuster are not parties to this appeal. 4 contractor, Whitehouse, for work completed by TriCoast, instead of reissuing the check that had gone stale to TriCoast.4 II. Demurrer Defendants demurred under Code of Civil Procedure section 430.10, subdivision (e),5 to the causes of action for intentional and negligent interference with prospective economic advantage. They argued that TriCoast failed to allege the existence of a future economic benefit, wrongful conduct by defendants, or that defendants owed a duty to TriCoast. The trial court sustained defendants’ demurrer to both causes of action, reasoning that TriCoast failed to allege that it “was likely to derive some future, rather than past, economic benefit or advantage from its relationship with . . . Fonnegra.” TriCoast had alleged that “the relationship between [TriCoast] and Fonnegra terminated on [July 17, 2015]” but did not allege that defendants caused the termination. The court concluded that TriCoast also failed to allege that defendants’ conduct “was wrongful in some way other than the interference itself” and noted that “[t]he allegation that [defendants] acted wrongfully is . . . belied by the allegation that [defendants] were deceived by . . . Whitehouse . . . into paying funds to Whitehouse for work completed by [TriCoast].” According to the court, the cause of action for negligent interference with prospective economic advantage was deficient for the additional reason that TriCoast 4 TriCoast also alleged, however, that the public adjuster and Whitehouse conspired to create false estimates to deceive defendants. 5 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 5 “failed to allege facts to establish that [defendants] owed it a duty.” “Because it d[id] not appear that the defects in these causes of action [could] be cured by amendment,” the trial court sustained the demurrer without leave to amend. III. Summary Judgment A. Defendants’ motion Defendants moved for summary judgment or, in the alternative, summary adjudication, directed to the remaining causes of action for foreclosure of mechanic’s lien and tortious interference with contractual relations. Defendants argued that no triable issue of fact existed as to the foreclosure of mechanic’s lien cause of action because the lien serviced by defendants—in the form of the deed of trust—had priority over TriCoast’s mechanic’s lien. No triable issue of fact existed as to the tortious interference with contractual relations cause of action because (1) the contract between TriCoast and Fonnegra was terminated three months before defendants’ alleged conduct occurred and thus “there was no contractual relationship for [defendants] to disrupt or sever”; (2) even if the contract was still in place, defendants’ alleged conduct did not disrupt it; and (3) defendants did not cause TriCoast’s damages. B. TriCoast’s opposition In its opposition to defendants’ motion, TriCoast argued that defendants lacked standing to contest the priority of TriCoast’s mechanic’s lien because defendants had not provided evidence regarding who was the current holder of the deed of trust to the property. As to tortious interference with contractual relations, TriCoast asserted that its contract with Fonnegra was not 6 actually terminated on July 17, 2015; rather, Fonnegra breached the contract but was still obligated to pay for work that had been completed by TriCoast. Defendants disrupted the contract by paying Whitehouse for work completed by TriCoast, causing TriCoast to suffer damages. TriCoast’s opposition papers—consisting of a memorandum of points and authorities, a separate statement of undisputed material facts, a declaration of TriCoast’s counsel (who was also a director of the corporation), and a declaration of TriCoast’s president—were filed electronically. No exhibits were filed concurrently with the opposition papers. C. The trial court’s ruling On March 1, 2019, the trial court issued a minute order granting summary judgment in defendants’ favor. As a preliminary matter, the court noted that TriCoast had failed to provide courtesy copies of its opposition papers. The court had nevertheless considered TriCoast’s electronically filed documents. “However, the exhibits referred to in the opposition were not attached to any of the electronically filed opposition papers.” Regarding the foreclosure of mechanic’s lien cause of action, the trial court rejected TriCoast’s argument that defendants lacked standing to contest priority; if defendants did not have standing, the court reasoned, the cause of action should not have been asserted against them. Additionally, because the deed of trust serviced by defendants was recorded before the entry of the contract between TriCoast and Fonnegra and before TriCoast’s mechanic’s lien was recorded, defendants’ lien had priority. Regarding the tortious interference with contractual relations cause of action, the trial court noted that the second amended complaint alleged the termination of the contract on or 7 about July 17, 2015, and that TriCoast was attempting to improperly “create a triable issue of material fact by contradicting” its own allegations by claiming that the contract continued after that date. “The evidence establishe[d] that no contractual relationship existed between [TriCoast] and . . . Fonnegra for [defendants] to sever or disrupt at the time they issued the check to . . . Fonnegra and Whitehouse . . . on [January 19, 2016].” The court also found that the evidence showed that defendants did not cause TriCoast’s claimed damages. On March 20, 2019, judgment was entered in favor of defendants. IV. TriCoast’s Motion for Reconsideration On March 15, 2019, TriCoast moved under sections 1008 and 473 for reconsideration of or, in the alternative, for relief from the trial court’s order granting summary judgment. TriCoast argued that, based on excusable neglect, it failed to electronically file 20 exhibits in support of its opposition to defendants’ motion for summary judgment/adjudication and that some of those exhibits would have been “sufficient to show facts claimed to be undisputed are in fact disputed.” TriCoast sought discretionary relief under section 473, subdivision (b), which provides that “‘[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’” The trial court denied TriCoast’s motion on the ground that, following the entry of judgment, the court had lost jurisdiction. 8 V. Appeal TriCoast timely appealed from the judgment and the order after judgment. DISCUSSION I. Demurrer TriCoast first contends that the trial court erred by sustaining defendants’ demurrer to the causes of action for intentional and negligent interference with prospective economic advantage without leave to amend. A. Standards of review When a demurrer is sustained without leave to amend, we apply two separate standards of review. (Aguilera v. Heiman (2009) 174 Cal. App. 4th 590 , 595.) “We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. [Citation.] Second, we determine whether the trial court abused its discretion by sustaining the demurrer without leave to amend. [Citation.] Under both standards, appellant has the burden of demonstrating that the trial court erred. [Citation.] An abuse of discretion is established when ‘there is a reasonable possibility the plaintiff could cure the defect with an amendment.’” (Ibid.) B. Relevant law “‘The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition.’” (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal. App. 5th 399 , 429.) 9  The elements of tortious interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party having a probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional or negligent independently wrongful act designed to disrupt the relationship; (4) disruption of the relationship; and (5) damages. (Crown Imports, LLC v. Superior Court (2014) 223 Cal. App. 4th 1395 , 1404–1405 (Crown Imports).)6 The independently wrongful element means “that a plaintiff seeking to recover damages for interference with prospective economic advantage must plead as an element of the claim that the defendant’s conduct was ‘wrongful by some legal measure other than the fact of interference itself.’” (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal. 5th 1130 , 1142 (Ixchel).) “‘[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’” (Ibid.) “The independently wrongful act must be the act of interference itself, but such act must itself be independently wrongful. That is, ‘[a] plaintiff need not allege the interference and a second act independent of the interference. Instead, a plaintiff must plead and prove that the conduct alleged to constitute the interference was independently wrongful, i.e., 6 “The difference between intentional interference and negligent interference with prospective economic advantage relates to the defendant’s intent.” (Crown Imports, supra , 223 Cal.App.4th at p. 1404, fn. 10.) Because defendants’ intent is not relevant to our analysis, we treat the two causes of action for intentional and negligent interference with prospective economic advantage the same. 10 unlawful for reasons other than that it interfered with a prospective economic advantage. [Citations.]’” (Crown Imports, supra , 223 Cal.App.4th at p. 1404.) C. Analysis 1. Failure to allege an independently wrongful act To state a cause of action for both intentional and negligent interference with prospective economic advantage, TriCoast was required to allege that defendants’ interference was independently wrongful—“‘. . . that is, . . . proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’” (Ixchel, supra , 9 Cal.5th at p. 1142.) TriCoast contends that it sufficiently pled this element by alleging that defendants disrupted TriCoast’s relationship with Fonnegra by issuing a check to Fonnegra’s new contractor, Whitehouse, for work completed by TriCoast. According to TriCoast, these actions “are indicative of wrongful conduct” and that “such conduct is not a customary or industry practice, nor just, nor consistent with common law.” TriCoast argues that this conduct constitutes the cause of action for tortious interference with contractual relations, which is a wrongful act independent from the interference with prospective economic advantage. We cannot agree. Although pled separately, the alleged interference giving rise to the cause of action for tortious interference with contractual relations is the same as the interference giving rise to the causes of action for intentional and negligent interference with prospective economic advantage: Defendants interfered with Fonnegra’s performance of his contract with TriCoast by issuing a check made out to Fonnegra and Whitehouse instead of to Fonnegra and TriCoast for work completed by TriCoast. In 11 other words, the interference with contractual relations is not independent from the interference with prospective economic advantage; the interference in each cause of action shares the same “interfering character.” (Edwards v. Arthur Andersen LLP (2008) 44 Cal. 4th 937 , 944.) Indeed, we are aware of no authority that stands for the proposition that interference with contractual relations can serve as an independently wrongful act to state a cause of action for interference with prospective economic advantage. To the extent that TriCoast relies on Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134 (Korea Supply) to support such a contention, its reliance is misplaced. In that case, the California Supreme Court reiterated that intentional interference with contract and intentional interference with prospective economic advantage are distinct torts. (Korea Supply, supra , 29 Cal.4th at p. 1157.) Unlike interference with contract, interference with prospective economic advantage does not require the existence of a valid contract. (See id. at pp. 1157–1158.) The other significant distinction between the torts is that “a plaintiff that chooses to bring a claim for interference with prospective economic advantage has a more rigorous pleading burden since it must show that the defendant’s conduct was independently wrongful.” (Id. at p. 1158.) In contrast, interference with contract does not require that the defendant engaged in an independently wrongful act, because “while intentionally interfering with an existing contract is ‘a wrong in and of itself’ [citation], intentionally interfering with a plaintiff’s prospective economic advantage is not.” (Ibid.) Korea Supply did not address whether interference with contract satisfies the independently wrongful element for a 12 cause of action for interference with prospective economic advantage based on the same conduct. “[I]t is axiomatic that a decision does not stand for a proposition not considered by the court [citation].” (People v. Barker (2004) 34 Cal. 4th 345 , 354.) Because TriCoast failed to allege facts showing that defendants “engaged in an act that is wrongful apart from the interference itself” (Korea Supply, supra , 29 Cal.4th at p. 1154), a required element of intentional and negligent interference with prospective economic advantage, the trial court properly sustained defendants’ demurrer as to those causes of action.7 2. Leave to amend TriCoast “bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal. App. 4th 39 , 43.) To do so, it “must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, [it] must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Id. at pp. 43– 44.) 7 Because the demurrer was properly sustained on this basis, we need not and do not address whether the trial court could also sustain the demurrer because TriCoast failed to allege a future economic benefit or advantage through its relationship with Fonnegra or, as to negligent interference, failed to allege that defendants owed a duty to TriCoast. (See Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal. App. 5th 537 , 549 [“We may affirm on any basis stated in the demurrer, regardless of the ground on which the trial court based its ruling”].) 13  TriCoast has not met its burden. It “identifies no determinable legal standard proscribing” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal. App. 5th 827 , 842) defendants’ alleged interference with prospective economic advantage other than defendants’ alleged interference with contractual relations and, thus, fails to demonstrate how it can cure the pleading deficiencies. There is no basis to find an abuse of discretion. II. Continuance of Hearing TriCoast next argues that the trial court erred by not continuing, pursuant to section 437c, subdivision (h), the hearing on defendants’ motion for summary judgment/adjudication. A. Standard of review We review a trial court’s decision regarding a continuance under section 437c, subdivision (h), for an abuse of discretion. (Knapp v. Doherty (2004) 123 Cal. App. 4th 76 , 100.) “Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.” (In re Marriage of Connolly (1979) 23 Cal. 3d 590 , 598 (Connolly).) B. Relevant law Section 437c, subdivision (h), provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by 14 ex parte motion at any time on or before the date the opposition response to the motion is due.” The declarations of the party seeking the continuance must show: “‘(1) “Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion”; (2) “The specific reasons why such evidence cannot be presented at the present time”; (3) “An estimate of the time necessary to obtain such evidence”; and (4) “The specific steps or procedures the opposing party intends to utilize to obtain such evidence.”’” (501 East 51st Street, Etc. v. Kookmin Best Ins. Co., Ltd. (2020) 47 Cal. App. 5th 924 , 939 (501 East 51st Street).) “When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request.” (Park v. First American Title Co. (2011) 201 Cal. App. 4th 1418 , 1428.) Otherwise, the court may, but is not required, “to grant a continuance under its broad discretionary power.” (Johnson v. Alameda County Medical Center (2012) 205 Cal. App. 4th 521 , 533 (Johnson).) C. Analysis TriCoast never requested a continuance of the hearing on the motion for summary judgment/adjudication. Accordingly, the trial court did not err in not ordering one. (See Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal. App. 4th 976 , 993 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do”].) TriCoast nevertheless contends that the trial court was required to continue the hearing based on the declaration submitted by TriCoast’s counsel in support of its opposition to the 15 motion for summary judgment/adjudication because the declaration “referenc[ed]” facts and evidence “that existed but [were] not presented.” The argument is meritless. The declaration of TriCoast’s counsel did not state any reason why facts essential to justify the opposition were not presented, as required for mandatory relief under section 437c, subdivision (h). (501 East 51st Street, supra , 47 Cal.App.5th at p. 939.) In the alternative, TriCoast argues that even if it did not submit an affidavit in compliance with section 437c, subdivision (h), the trial court should have continued the hearing “under its broad discretionary power.” This argument is incongruous. (Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal. App. 3d 651 , 666, fn. 16 [“It would be both inappropriate and futile for us to attempt to review for abuse a discretion the court was never requested to exercise and did not purport to exercise”].) It has also been forfeited. (In re A.B. (2014) 225 Cal. App. 4th 1358 , 1366 [“Because [the appellant’s] counsel never requested a continuance . . . , we consider the argument forfeited”].) Even putting those issues aside, the argument lacks merit. Pursuant to the California Rules of Court, “[t]he electronic filer is responsible for verifying that the court received and filed any document that the electronic filer submitted to the court electronically.” (Cal. Rules of Court, rule 2.259(a)(4).) “In the absence of the court’s confirmation of receipt and filing, there is no presumption that the court received and filed the document.” (Ibid.) Accordingly, the responsibility for verifying that the exhibits in support of its opposition to defendants’ motion for summary judgment/adjudication were properly filed—and thus before the trial court—fell squarely, and exclusively, on TriCoast. 16 TriCoast also failed to submit the required printed courtesy copies of its opposition papers, including its exhibits, in violation of a general order of the Los Angeles County Superior Court. Under these circumstances, the trial court did not err in failing to continue the hearing on the motion for summary judgment/adjudication. III. Relief from the Order Granting Summary Judgment TriCoast moved for reconsideration under section 1008 of the order granting summary judgment and, in the alternative, argued that the order should be set aside under the discretionary relief provision of section 473, subdivision (b). On appeal, TriCoast does not assert that the trial court erred by denying its request for reconsideration or by denying discretionary relief to set aside the order granting summary judgment.8 Rather, it contends that it was entitled to mandatory relief under section 473, subdivision (b). TriCoast argues: “There is great liberality in granting relief from an attorney’s mistake, inadvertence, surprise or excusable neglect. Indeed, such relief is mandatory under . . . [s]ection 473(b)[.]” A. Relevant law and standard of review “When lawyers make mistakes,” section 473, subdivision (b), provides both a discretionary and a mandatory form of relief. (Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal. App. 5th 167 , 170 (Shayan).) As set forth above, only the mandatory relief aspect of this statute is at issue. 8 Any challenge to these aspects of the ruling has been forfeited. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal. 3d 211 , 216, fn. 4 [“Plaintiff has not raised this issue on appeal . . . , and it may therefore be deemed waived”].) 17  Under the mandatory relief provision, a trial court is required to vacate a default, default judgment, or dismissal if, among other procedural requirements, an attorney files a “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect” that resulted in the default, default judgment, or dismissal, “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).) Only a narrow category of orders is covered by the mandatory relief provision—“defaults, default judgments, and dismissals.” (Shayan, supra , 44 Cal.App.5th at p. 170.)9 “‘[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation.] Thus, to the extent that the applicability of the mandatory relief provision does not turn on disputed facts, but rather, presents a pure question of law, it is subject to de novo review.” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal. App. 4th 393 , 399.) B. Analysis TriCoast’s argument is deficient in several respects. As a threshold matter, TriCoast failed to argue in the trial court that it was entitled to mandatory relief under section 473, subdivision (b), thus forfeiting the argument on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal. App. 4th 92 , 117.) Forfeiture aside, TriCoast’s argument lacks merit. Because TriCoast did not seek relief from a default, default judgment, or 9 The discretionary relief provision is applicable to a broader range of orders. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432 , 438.) 18 dismissal within the meaning of section 473, subdivision (b), the mandatory relief provision was inapplicable. (English v. IKON Business Solutions, Inc. (2001) 94 Cal. App. 4th 130 , 133 (English) [“the mandatory provision of section 473(b) does not apply to summary judgments because a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b)”].) Urging us to reverse, TriCoast directs us to Avila v. Chua (1997) 57 Cal. App. 4th 860 (Avila), which concluded that the mandatory relief provision in section 473, subdivision (b), applied to a dismissal following a grant of summary judgment because the dismissal was “directly analogous to a default judgment: Due to counsel’s late filing of crucial documents, the court decided the matter on the other parties’ pleadings.” (Avila, supra , at p. 868.) Numerous appellate courts—constituting the weight of authority—have disagreed with Avila and, instead, followed the holding of English, supra , 94 Cal.App.4th at pages 142–149. (E.g., The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal. App. 5th 993 , 998–1001; Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal. App. 4th 1086 , 1090–1092; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215 , 226–228; Huh v. Wang (2007) 158 Cal. App. 4th 1406 , 1415–1418; Prieto v. Loyola Marymount University (2005) 132 Cal. App. 4th 290 , 295–297.) As TriCoast has not provided us reason to do otherwise, we, too, follow English and its progeny. Finally, for the sake of completeness, we note that even if TriCoast could establish that the trial court erred in denying relief under section 473, subdivision (b), it has not demonstrated prejudice, which is ultimately fatal to its appeal. (In re S.C. , 19 supra , 138 Cal.App.4th at p. 422 [“appellant cannot prevail on a claim of error if she makes no effort to establish that she was prejudiced by the alleged error”].) In seeking reversal, TriCoast “bears the duty of spelling out in [its] brief exactly how the error caused a miscarriage of justice.” (Paterno v. State of California (1999) 74 Cal. App. 4th 68 , 106 (Paterno).) To do so here, TriCoast was required to show that, had the trial court set aside the order granting summary judgment and reevaluated defendants’ motion for summary judgment/adjudication, the exhibits that TriCoast had previously failed to file would have defeated the motion.10 TriCoast has not made a sufficient showing. TriCoast states, in conclusory fashion, that the exhibits “evidenc[e] several disputed facts, particularly the disputed fact that . . . Lakeview received servicing rights on July 16, 2016.”11 But TriCoast has not presented any argument or authority explaining how those purportedly disputed facts would have necessarily precluded summary judgment. We are “not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno, supra , 74 Cal.App.4th at p. 106.) 10 As the party moving for summary judgment, defendants bore an initial burden of production to make a prima facie showing that there was no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826 , 850.) TriCoast does not argue that defendants failed to meet their initial burden. We treat this as a concession that the burden of production shifted to TriCoast to make a prima facie showing that a triable issue of material fact did indeed exist. (Ibid.) 11 Given the context, TriCoast likely meant July 16, 2015. 20  DISPOSITION The judgment and postjudgment order are affirmed. Lakeview and Cenlar are entitled to costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. _____________________, J. ASHMANN-GERST We concur: ________________________, P. J. LUI ________________________, J. CHAVEZ 21

2020-12-02 22:02:13.473665+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313720

IN THE SUPREME COURT OF THE STATE OF DELAWARE UNDERWRITERS AT LLOYDS § LONDON, § § Defendant Below, § Appellant, § § No. 398, 2020 v. § § Court Below–Superior Court LEGION PARTNERS ASSET § of the State of Delaware MANAGEMENT, LLC, a Delaware § Limited Liability Company, § C.A. No. N19C-08-305 § Plaintiff Below, § Appellee. § Submitted: November 25, 2020 Decided: December 2, 2020 Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices. ORDER After careful consideration of the notice of interlocutory appeal, the supplemental notice of appeal, and their exhibits, it appears to the Court that: (1) In May 2018, Justin P. Albert, a former employee of Legion Partners Asset Management, LLC (“Legion”), filed an action in the Los Angeles Superior Court (the “LASC Action”) against Legion and two of its principal directors, managers, and officers, Raymond T. White and Christopher S. Kiper. Albert alleged that White and Kiper had breached their fiduciary duties and violated federal law by leaking confidential information to a news outlet. Albert also asserted claims against Legion for retaliation and wrongful termination. On the same day that Albert initiated the LASC Action, Legion filed a demand for arbitration with the American Arbitration Association, asserting that Albert had violated the terms of his employment with Legion by interfering with Legion’s business partnerships and revealing confidential information to third parties.1 On July 27, 2018, the LASC Action was stayed to allow arbitration to proceed on the employment-related claims. (2) On August 22, 2018, Albert filed a counterclaim in the arbitration proceedings (the “Counterclaim”) against Legion for wrongful termination and violation of California’s whistleblower statute. Although White and Kiper were not named as defendants in the Counterclaim, the Counterclaim relied on the same alleged wrongful acts that formed the basis of the LASC Action. Before arbitration concluded, Legion notified its insurance carrier, Underwriters at Lloyds London (“Underwriters”), that it sought coverage under its directors’ and officers’ liability policy (“the Policy”) for the costs incurred in defending the Counterclaim. Underwriters denied Legion coverage because White and Kiper were not parties to the Counterclaim. Legion then initiated this action in the Superior Court seeking a judicial declaration that Underwriters had a duty to defend the Counterclaim. 1 Legion asserted that Albert had violated Legion’s Employment Agreement as well as its Confidentiality and Intellectual Property Agreement. Both agreements contained arbitration clauses requiring the arbitration of disputes arising from Albert’s employment. 2  (3) On September 25, 2020, the Superior Court granted Legion’s motion for partial summary judgment, holding that the allegations made in the Counterclaim triggered Underwriters’ duty to advance defense costs under the express language of the Policy (the “Opinion”).2 Specifically, the Superior Court found that Underwriters had a duty to advance defense costs because Legion had incurred defense costs (a “loss” as defined by the Policy) arising from the Counterclaim (a “claim” as defined by the Policy), which was based on Legion’s errors, neglect, acts, or omissions, through White and Kiper, arising from White and Kiper’s alleged act of leaking confidential information (a “wrongful act” as defined by the Policy). The Superior Court directed the parties to allocate the defense costs between covered and uncovered claims as contemplated by the Policy. Underwriters filed a motion to reargue, which the Superior Court denied on October 29, 2020 (the “Order”).3 (4) On November 6, 2020, Underwriters asked the Superior Court to certify an interlocutory appeal from the Opinion and the Order (collectively, the “Decisions”) under Supreme Court Rule 42. Underwriters maintained that the Decisions decided a substantial issue of material importance,4 namely the scope of insurance coverage provided by the Policy. Underwriters also argued that the 2 Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2020 WL 5757341 (Del. Super. Ct. Sept. 25, 2020). 3 Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2020 WL 6338359 (Del. Super. Ct. Oct. 29, 2020). 4 Del. Supr. Ct. R. 42(b)(i). 3 following Rule 42(b)(iii) factors weighed in favor of granting interlocutory review: the Decisions decided issues of first impression in Delaware;5 considerations of justice warrant interlocutory review;6 and interlocutory review may terminate the litigation.7 Legion opposed the application. (5) On November 23, 2020, the Superior Court denied Underwriters’ application for certification of an interlocutory appeal.8 Although the Superior Court did not dispute Underwriters’ assertion that the Decisions involved a substantial issue of material importance, it concluded that the Rule 42(b)(iii) factors did not weigh in favor of certification of an interlocutory appeal. The Superior Court found—rightly, in our view—that it had not decided issues of first impression but had merely applied the unambiguous language of the Policy to the pleadings in the underlying litigation. The Superior Court also (i) rejected Underwriters’ argument that interlocutory review would serve considerations of justice, and (ii) observed that the most efficient way to resolve this case is for the parties to determine the allocation of defense costs—the only remaining issue pending in the Superior Court—after which a direct appeal may be taken. We agree with the Superior Court’s conclusion. 5 Del. Supr. Ct. R. 42(b)(iii)(A). 6 Del. Supr. Ct. R. 42(b)(iii)(H). 7 Del. Supr. Ct. R. 42(b)(iii)(G). 8 Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2020 WL 6875211 (Del. Super. Ct. Nov. 23, 2020). 4  (6) Applications for interlocutory review are addressed to the sound discretion of the Court.9 Giving due weight to the Superior Court’s analysis and in the exercise of our discretion, this Court has concluded that the application for interlocutory review does not meet the strict standards for certification under Supreme Court Rule 42(b). Exceptional circumstances that would merit interlocutory review of the Superior Court’s decision do not exist in this case,10 and the potential benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs caused by an interlocutory appeal.11 NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is REFUSED. BY THE COURT: /s/ Gary F. Traynor Justice 9 Del. Supr. Ct. R. 42(d)(v). 10 Del. Supr. Ct. R. 42(b)(ii). 11 Del. Supr. Ct. R. 42(b)(iii). 5

2020-12-02 21:09:47.768225+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07220.htm

People v Garcia (2020 NY Slip Op 07220) People v Garcia 2020 NY Slip Op 07220 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER VALERIE BRATHWAITE NELSON, JJ. 2018-06555 (Ind. No. 1802/17) [*1]The People of the State of New York, respondent, v Edwal Garcia, appellant. Paul Skip Laisure, New York, NY (Samuel Barr of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered April 17, 2018, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. The appeal from the judgment brings up for review the denial, after a hearing, of the defendant's omnibus motion to suppress physical evidence and his statements to law enforcement officials, and the denial of the defendant's motion to controvert a search warrant and suppress physical evidence seized in the execution thereof. ORDERED that the judgment is affirmed. At a suppression hearing, a police officer testified that at approximately 1:00 a.m., he was driving in an unmarked police vehicle with two other police officers when he observed the defendant driving a vehicle that had a defective headlight. The officer pulled over the vehicle that the defendant was driving, approached the driver's side door of the vehicle, and asked the defendant through the open window for his license, registration, and proof of insurance. The officer testified that he detected a strong smell of marijuana emanating from the vehicle. The officer testified that he asked the defendant if he had smoked marijuana in the vehicle, and the defendant responded that he had smoked marijuana in the vehicle earlier that day. While the defendant was looking for identification, the officer shined his flashlight into the vehicle, where he saw an expandable baton on the driver's side door. Although the defendant did not have identification, he told the officer his name, and gave the officer his benefits card, which listed his date of birth. The officer conducted a computer search using the defendant's name, which revealed that the defendant had an active arrest warrant. The defendant was then placed under arrest. After the vehicle that the defendant had been driving was transported to the precinct, the officer recovered the baton from the driver's side door of the vehicle. While at the precinct, the defendant asked the officer why the arrest process was taking so long. When the officer told the defendant that a K-9 unit was searching the vehicle, the defendant responded, "you can do that all you want, whatever's in the car, the car's not registered to me, my prints aren't on it." Thereafter, the police obtained and executed a search warrant of the vehicle, and seized drugs and a gun from the vehicle. Following the suppression hearing, the Supreme Court denied the defendant's motion to suppress the baton recovered from the vehicle and his statements to the officer, finding that the [*2]officer had reasonably stopped the vehicle that the defendant was driving because the officer had probable cause to believe that a traffic violation had occurred. The defendant thereafter moved to controvert the search warrant of the vehicle and to suppress the physical evidence seized in the execution thereof. In a decision and order dated December 14, 2017, the court denied, without a hearing, the defendant's motion to controvert the search warrant. The defendant pleaded guilty to criminal possession of a weapon in the third degree. On appeal, the defendant challenges the validity of his purported appeal waiver and the court's suppression rulings. The defendant's purported waiver of his right to appeal was invalid (see People v Thomas, 34 NY3d 545). When explaining the waiver of the right to appeal, the Supreme Court stated to the defendant that, as a result of the waiver, "no higher court will review the proceedings," "[n]o lawyer will pursue an appeal" on the defendant's behalf, and the defendant's "plea and sentence will be final." These statements "utterly 'mischaracterized the nature of the right [the] defendant was being asked to cede'" (People v Thomas, 34 NY3d 545, 565, quoting People v Lopez, 6 NY3d 248, 257), and incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal (see People v Thomas, 34 NY3d at 564; People v Kyra J., 180 AD3d 929, 929-930; People v Brown, 181 AD3d 819, 820; People v Christie, 180 AD3d 802). The written waiver form did not overcome the ambiguities in the court's explanation of the right to appeal as it did not contain clarifying language that appellate review remained available for select issues (see People v Dixon, 184 AD3d 854; People v Contreras, 183 AD3d 759). Since the appeal waiver was invalid, it does not preclude appellate review of the defendant's challenge to the court's suppression determinations (see People v Chy, 184 AD3d 664; People v Weeks, 182 AD3d 539). However, the record supports the Supreme Court's finding that the stop of the vehicle that the defendant was driving was based upon the officer's observation of the vehicle driving at night with a defective headlight (see Vehicle and Traffic Law § 375[2][a][1]). Based on this observation, the officer had probable cause to believe that a traffic violation occurred so as to permit a stop of the defendant's vehicle (see People v Robinson, 97 NY2d at 349; People v Johnson, 83 AD3d 733, 733-734; People v Viele, 90 AD3d 1238, 1239; People v Graves, 163 AD2d 487, 488). Moreover, the credibility determinations of a hearing court are accorded great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v Holland, 133 AD3d 779). Contrary to the defendant's contention, the testimony of the officer at the suppression hearing was not incredible, patently tailored to nullify constitutional objections, or otherwise unworthy of belief (see People v Batista, 180 AD3d 698, 699; People v Lewis, 117 AD3d 751, 752). Accordingly, we agree with the court's determination, after a hearing, denying the defendant's omnibus motion to suppress physical evidence and his statements to law enforcement officials. As a result, the defendant's contention that the basis of the search warrant was information obtained as a result of an illegal stop of the vehicle that he was driving is without merit, and the court properly denied, without a hearing, the defendant's motion to controvert the search warrant and to suppress physical evidence seized in execution of the warrant (see People v Anglin, 178 AD3d 839, 840). RIVERA, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2021-01-26 22:02:49.096859+00

http://courts.delaware.gov/Opinions/Download.aspx?id=315950

IN THE SUPREME COURT OF THE STATE OF DELAWARE HAROLD DANIELS, § § No. 531, 2019 Defendant Below, § Appellant, § Court Below: Superior Court of § the State of Delaware v. § § ID No. 1812013402(N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. § Submitted: November 18, 2020 Decided: January 26, 2021 Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices. Upon appeal from the Superior Court. REVERSED and REMANDED. Benjamin S. Gifford IV, Esq., THE LAW OFFICE OF BENJAMIN S. GIFFORD IV, Wilmington, Delaware, for Appellant, Harold Daniels. Carolyn S. Hake, Esq., DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee, the State of Delaware. TRAYNOR, Justice: After Harold Daniels pleaded guilty to driving under the influence of alcohol, the Superior Court sentenced him to a mandatory term of imprisonment as a third- time offender under 21 Del. C. § 4177(d)(3). The court based its finding that Daniels had committed two prior offenses in part on its determination that Daniels had been convicted in New Jersey in 2012 under a statute that was “similar” to Delaware’s driving-under-the-influence statute. In this appeal, Daniels argues that, because the New Jersey statute under which he was convicted prohibits conduct that is not against the law in Delaware—permitting another person to operate a vehicle while under the influence—the Superior Court erred by counting the New Jersey conviction against him. For the reasons that follow, we agree with Daniels and therefore vacate his sentence. I. The facts surrounding Daniels’ arrest in December 2018 for driving under the influence of alcohol are not germane to this appeal. It suffices to understand that Daniels pleaded guilty to that charge, after which the State moved the Superior Court to sentence him as a third-time offender. Under Section 4177(d)(3), a third offense DUI is a Class G felony punishable by up to two years in prison, three months of which may not be suspended, and a fine of up to $5,000. By contrast, first offenders are subject to a fine of not less than $500 nor more than $1,500 and a prison sentence, 2 which may be suspended, of up to 12 months.1 Section 4177B defines “prior or previous conviction” as “[a] conviction or other adjudication of guilt . . . under § 4175(b) or § 4177 . . . or a similar statute of any state or local jurisdiction . . . .”2 In support of its motion, the State submitted certified copies of two convictions: (1) a 2000 conviction in Delaware for reckless driving (alcohol related), in violation of 21 Del. C. § 4175(b), and (2) a 2012 conviction in New Jersey under N.J. Stat. Ann. § 39:4-50 (“N.J. § 39:4-50”), a statute that is entitled “Driving while intoxicated.” Daniels responded that the court should not consider the New Jersey conviction because the New Jersey statute he was found to have violated in 2012 is “significantly broader in scope than Section[] . . . 4177,”3 punishing conduct—permitting another person to drive under the influence—“that is not criminalized in Delaware.”4 According to Daniels, for his conviction under 1 We do not recite the penalties applicable to second offenses because it would appear that Daniels’ conviction should be treated either as a first offense or a third offense. If Daniels’ 2012 New Jersey conviction is counted as a prior conviction, then the offense for which the Superior Court sentenced him here is a third offense. If it is not, although the offense here would be Daniels’ third offense during his lifetime and second offense in Delaware, it would be a first offense for sentencing under Section 4177 because his actual first offense occurred more than 10 years before the instant offense. See 21 Del. C. § 4177(d)(2) (“For a second offense occurring at any time within 10 years of a prior offense, [the offender shall] be fined not less than $750 nor more than $2,500 and imprisoned not less than 60 days nor more than 18 months.” (emphasis added)). 2 21 Del. C. § 4177B(e)(1)(a). This section counts convictions under Section 4175(b) (reckless driving-alcohol related) and Section 4177 (driving while under the influence) as prior convictions. Because the State does not contend that Daniels’ New Jersey conviction was under a statute similar to Section 4175(b), henceforth we will confine our analysis to whether the New Jersey statute is “similar” to Section 4177. 3 App. to Opening Br. at A48. 4 Id. 3 the New Jersey statute to qualify as a prior offense under a statute “similar” to Section 4177, the State was required to provide enough information that would enable the Superior Court to determine that he had been convicted of driving—and not permitting another to drive—under the influence; the State readily conceded that it was unable to do so.5 The Superior Court was unpersuaded by Daniel’s argument for two reasons. First, the court selected a dictionary definition of “similar,” to-wit: “nearly corresponding; resembling in many respects; having a general likeness, although allowing for some degree of difference,”6 and found that N.J. § 39:4-50 fit the bill. Second, the court found that the purported difference in the New Jersey statute was “truly illusory” because, “it would seem Delaware’s DUI and accomplice liability statutes would operate in the same manner as New Jersey’s express provision”7 that punishes persons who permit others to drive under the influence. Thus, the Superior Court granted the State’s motion and sentenced Daniels as a third-time offender to 5 During supplemental briefing below and on appeal, the State has argued that, even though it was unable to produce Shepard documents to prove the part of the New Jersey DUI statute under which Daniels was convicted, Daniels could still be sentenced as a third-time offender because Daniels’ participation in a rehabilitation program following his 2012 New Jersey conviction constituted a prior conviction under Section 4177B(e)(1)(c). Because we determine that the New Jersey and Delaware statutes are not similar, Daniels’ participation in a rehabilitation program cannot constitute a prior offense as Section 4177B(e)(1)(c) requires that such participation must occur under a statute similar to the Delaware DUI statute. 6 State v. Daniels, 2019 WL 6869071 , at *3 (Del. Super. Ct. Nov. 13, 2019) as modified (Dec. 16, 2019) (quoting Black’s Law Dictionary 1240 (6th ed. 1990)). 7 Id. at *4 . 4 two years of Level V incarceration, to be suspended after Daniels serves three months for one year of Level IV probation. This appeal followed. II. We address questions of statutory interpretation de novo because they include questions of law.8 III. A. We begin our consideration of whether the New Jersey statute is sufficiently similar to Section 4177 such that a conviction under it qualifies as a prior DUI offense for sentencing purposes by comparing the text of the two statutes. Under Section 4177, (a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol; (2) When the person is under the influence of any drug; (3) When the person is under the influence of a combination of alcohol and any drug; (4) When the person’s alcohol concentration is .08 or more; or (5) When the person’s alcohol concentration is, within 4 hours after the time of driving .08 or more.9 Under the New Jersey statute, a person may be convicted if he or she: operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit- 8 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247 , 1257 (Del. 2011); see also Sammons v. State, 68 A.3d 192 , 194 (Del. 2013) (“Whether a crime from another jurisdiction is the equivalent to a particular crime under the Delaware code is a question of law to be reviewed de novo.”). 9 21 Del. C. § 4177(a). 5  producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle the person owns or which is in the person's custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . . .10 One is struck by an obvious—and important—difference between these two statutes. While they both prohibit driving a vehicle while under the influence, N.J. § 39:4-50 has a broader reach than Section 4177. In particular, the New Jersey statute imposes penalties on persons who “permit[] another person who is under the influence of intoxicating liquor . . . [or drugs] to operate a motor vehicle the person owns or which is in the person’s custody or control;”11 the Delaware statute has no corresponding provision. In the Superior Court, Daniels seized upon this difference, a line of United States Supreme Court cases construing the Armed Career Criminal Act (the “ACCA”), and our recent order in Valentine v. State,12 and argued that, to invoke his 2012 conviction under N.J. § 39:4-50 for the purpose of enhancing his sentence, the State was required to demonstrate that he had been convicted under the part of the statute that was similar to Section 4177, and not under the part that was different. 10 N.J. STAT. ANN. § 39:4-50(a) (emphasis added). 11 Id. 12 207 A.2d 166 , 2019 WL 1178765 (Del. 2019) (TABLE). 6  B. As background for our discussion of Daniels’ argument—and the Superior Court’s rejection of it—we interpose here a brief discussion of Valentine and its federal antecedents. In Valentine, we were tasked with determining whether the defendant could be sentenced as a repeat offender under Delaware’s possession-of- a-firearm-by-a-prohibited-person (“PFBPP”) statute13 based on two prior felony convictions under two Pennsylvania statutes. We determined that neither Pennsylvania conviction resulted under a statute that was “‘the same as or equivalent to’ a Delaware violent felony statute,”14 a prerequisite for enhanced sentencing under the PFBPP statute. In reaching that conclusion, we looked to United States Supreme Court precedent that analyzed whether a prior conviction in a foreign jurisdiction qualifies as a prior offense for the purpose of enhancing a defendant’s sentence under the ACCA.15 The ACCA imposes a mandatory minimum sentence of 15 years for offenders who have three prior convictions “for a violent felony or a serious drug offense.”16 The ACCA defines a “violent felony” as using or threatening the use of physical force against another person but it also includes “burglary, arson, or extortion.”17 13 See 11 Del. C. § 1448(e)(1)(c). 14 Valentine, 2019 WL 1178765 , at *1. 15 The ACCA is the federal analog of Delaware’s PFBPP statute. 16 18 U.S.C. § 924 (e) (2018). 17 Id. 7 Where the prior conviction is “burglary, arson, or extortion,” the United States Supreme Court has instructed that the sentencing court should refer to the definition of the “‘generic’ crime—i.e., the offense as commonly understood”18 to determine whether the prior conviction may be counted for the purposes of enhancing the defendant’s sentence. In Mathis v. United States,19 the Supreme Court clarified the two approaches a sentencing court may use to compare a foreign statute with the “generic” crimes listed in the ACCA. The first approach, the “categorical approach,” is to be used “when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime,” excluding any consideration of the facts of the case.20 Under this approach, if the elements of the statute under which the defendant was convicted match one of the generic offenses listed (i.e., burglary, arson, or extortion), then the prior conviction may serve as an ACCA predicate for the imposition of an enhanced sentence. On the other hand, the “modified categorical approach” is to be used when the statute has “a more complicated (sometimes called ‘divisible’) structure . . . list[ing] elements in the alternative, and thereby defin[ing] multiple crimes.”21 Under the “modified categorical approach,” a sentencing court may look to Shepard 18 Descamps v. United States, 570 U.S. 254 , 257 (2013). 19 Mathis v. United States, 136 S. Ct. 2243 (2016). 20 Id. at 2248–49. 21 Id. at 2248 . 8 documents, which are “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.”22 Following this guidance, we employed the “modified categorical approach” in Valentine and determined that one of the defendant’s Pennsylvania convictions resulted under a statute that, in addition to criminalizing behavior also prohibited in Delaware—specifically, carrying a concealed weapon without a license—the Pennsylvania statute also criminalized behavior not prohibited in Delaware— specifically, possessing a firearm in a vehicle if that firearm is not concealed. Because the Shepard documents presented at sentencing did not indicate the part of the Pennsylvania statute under which the defendant was convicted, we reversed the defendant’s enhanced sentencing under the PFBPP statute. Despite the fact that N.J. § 39:4-50 appears to include alternative offense elements—operating a vehicle, on the one hand, and permitting another to do so, on the other—and that the record of Daniels’ conviction does not disclose under which one he was convicted, the Superior Court eschewed the “modified categorical approach.” The court reasoned that, because PFBPP sentences are enhanced only if the defendant has a prior conviction for an offense that is “the same as or equivalent 22 Id. at 2249 (citing Shepard v. United States, 544 U.S. 13 , 26 (2005); Taylor v. United States, 495 U.S. 575 , 602 (1990)). 9 to”23 a Delaware violent felony and because Section 4177B(e)(1)’s enhancement provisions only require convictions under statutes “similar” to Section 4177, the court need not determine which alternative offense underlay the prior conviction. For the Superior Court, if the statute under which Daniels was convicted in New Jersey bore “a general likeness” to Delaware’s DUI statutes “with ‘some degree of difference allowed,’”24 the question of whether Daniels was convicted of the alternative offense that is not an offense under Section 4177 need not be answered. C. We disagree with the Superior Court’s interpretation of Section 4177B(e)(1)’s definition of “[p]rior or previous conviction or offense.” Although the court quite rightly sought to derive the commonly accepted meaning of “similar” by consulting frequently cited dictionaries, it did not, in our view, take sufficient heed of the context in which the elusive word is used. To be sure, dictionary definitions are helpful. But “dictionaries may also reveal a linguistic pluralism . . . [that is], a word [can have] a broad range of possible meanings.”25 And this is true of “similar,” as noted by the very edition of Black’s Law Dictionary upon which the Superior Court relied for its definition. “‘[S]imilar,’” Black’s warns, “may mean identical or exactly 23 11 Del. C. § 1448(e)(3). 24 Daniels, 2019 WL 6869071 , at *4. 25 William N. Eskridge Jr., Interpreting Law A Primer on How to Read Statutes and the Constitution 59 (2016). 10 alike. It is a word with different meanings depending on [the] context in which it is used.”26 In this instance, we believe that the context that gives meaning to the word “similar” weighs in favor of defining it as “alike in substance or essentials.”27 In reaching this conclusion, we look to the purpose underlying Delaware’s driving-under-the-influence statutory scheme as “an essential element of context that gives meaning to its words.”28 The evident purpose of what the driving-under-the- influence statutes seek to achieve is the prohibition and punishment of those who drive—defined as “driving, operating, or having actual physical control of a vehicle”29—while under the influence of alcohol or drugs. Section 4177 does not by its terms prohibit permitting another to drive under the influence and, to the extent a statute, such as New Jersey statute in question here, criminalizes that conduct, (and, to be clear, only to that extent), it is not similar to Section 4177. This is not to say that a prior conviction under N.J. § 39:4-50 can never qualify as a “prior or previous conviction” under Section 4177B. Indeed, its prohibition of “operat[ing] a motor vehicle while under the influence of intoxicating liquor [or drugs]” addresses similar conduct as does Section 4177, which states that “[n]o person shall drive a vehicle . . . when the person is under the influence of alcohol . . 26 Black’s Law Dictionary 1383 (6th ed. 1990); see also Black’s Law Dictionary 1240 (5th ed. 1979). 27 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/similar (last visited Jan. 21, 2021). 28 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 20 (2012). 29 11 Del. C. § 4177(c)(5). 11 . any drug . . . any combination of alcohol and any drug.”30 Moreover, statutes from other jurisdictions that might describe the offense of driving under the influence differently or establish different evidentiary standards applicable to the offense might still qualify as similar so long as the offense of conviction is similar to driving under the influence as defined in Section 4177.31 But where, as here, the prior conviction is under a statute that is divisible into conduct that violates Section 4177 and conduct that doesn’t, the sentencing court must determine, with the benefit of Shepard documents, if necessary, whether the prior conviction was under the section of the statute that is similar to Section 4177. D. We turn next to the Superior Court’s determination that the apparent dissimilarity of at least a portion of N.J. § 39:4-50 is “truly illusory.” This conclusion rests on the premise that theoretically—for there are no Delaware precedents or examples of prosecutions to support it—“it would seem Delaware’s DUI and accomplice liability statutes would operate in the same manner as New 30 11 Del. C. § 4177(a). 31 Our decision is consistent with Stewart v. State, where we held that a comparative analysis of the Delaware statute and the statute under which a prior conviction rests, “without reference to the facts and circumstances underlying the [prior] conviction” will suffice to determine similarity. 930 A.2d 923 , 926 (Del. 2007); see also State v. Rogers, 2001 WL 1398583 (Del. Super. Ct. Oct. 9, 2001), aff’d, 798 A.2d 1042 , 2002 WL 1058160 (Del. May 22, 2002) (TABLE). Neither Stewart nor Rogers involved a prior conviction under a statute that punished conduct that is not an offense under Section 4177. 12 Jersey’s express provision”32 that punishes persons who knowingly permit others to drive under the influence. We are not persuaded by the Superior Court’s supposition for two reasons. First, Delaware’s accomplice-liability statute, found at 11 Del. C. § 271, appears to require more active conduct on the part of an accomplice than the passive permission that will support a conviction under N.J. § 39-4:50. The Superior Court did not explain—and we do not see—how permitting a person to engage in conduct falls with any of the pertinent subsections of Section 271.33 32 Daniels, 2019 WL 6869071 , at *4. Daniels claims that it was error for the Superior Court to consider the issue of accomplice liability sua sponte and without giving the parties an opportunity to brief the issue. Our ruling renders consideration of the procedural issue unnecessary. But we do not see the State’s failure to make this argument as entirely irrelevant. Put another way, that it did not occur to the Delaware Department of Justice that a person could be prosecuted in Delaware for aiding and abetting a motor vehicle violation—even a very serious one—casts some measure of doubt on the court’s theoretical speculation. 33 11 Del. C. § 271 states: A person is guilty of an offense committed by another person when: (1) Acting with the state of mind that is sufficient for commission of the offense, the person causes an innocent or irresponsible person to engage in conduct constituting the offense; or (2) Intending to promote or facilitate the commission of the offense the person: a. Solicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or b. Aids, counsels or agrees or attempts to aid the other person in planning or committing it; or c. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or (3) The person’s conduct is expressly declared by this Criminal Code or another statute to establish the person’s complicity. Nothing in this section shall apply to any law-enforcement officer or the officer’s agent while acting in the lawful performance of duty. 13  Second, the cases the Superior Court cited in support of its accomplice- liability driving-under-the-influence theory are of questionable utility. As an initial matter, all of the cases cited by the Superior Court involve driving-under-the- influence charges where an accident occurred and two occupants of the car—a driver and a passenger—are both intoxicated.34 And in four of them, it was unclear whether the defendant was driving or riding as a passenger when the accident occurred.35 In Venable v. State,36 the defendant and an acquaintance he had recently met at a tavern were involved in a car accident. Although it was unclear who was driving at the time of the accident, upon arrival at the scene, the arresting officer found the defendant behind the wheel attempting to drive the vehicle out of a ditch. To be sure, the court held that either of two alternative findings of the trial court—one that the defendant was driving and the other that he had allowed his friend, who the defendant knew was under the influence, to drive—were sufficient to sustain the defendant’s driving-under-the-influence conviction. But a closer look at Venable, decided in 1965, does not inspire confidence in its current vitality. For one thing, the Venable reasoning rests on a 1940 case, Brewer v. State,37 that did not find that 34 See State v. Satern, 516 N.W.2d 839 , 840 (Iowa 1994); State v. Lemacks, 996 S.W.2d 166 , 167 (Tenn. 1999); Venable v. State, 397 S.W.2d 231 , 232 (Tex. Crim. App. 1965); State v. Millette, 795 A.2d 1182 , 1183 (Vt. 2002); Taylor v. State, 83 So.2d 879 , 880 (Fla. 1955). 35 See Satern, 516 N.W.2d at 840 ; Lemacks, 996 S.W.2d at 168 ; Venable, 397 S.W.2d at 232 ; Taylor, 83 So.2d at 880. 36 397 S.W.2d 231 . 37 143 S.W.2d 599 (Tex. Crim. App. 1940). 14 a person could be convicted of driving under the influence under an accomplice- liability theory. Rather, Brewer involved the prosecution of an automobile owner for murder of a five-month-old baby. The relevant holding is found in a sentence of Faulknerian length: If the appellant has advised and agreed to all the acts and conduct of a companion whom he has placed in charge of his car and acts with him for hours, as in the instant case, in recklessly driving upon the streets and public highways in an intoxicated condition, where it may be known that the driver of the car is incapable of judicious control and the owner who places it in his hands continues with him and permits him to use it while in that condition, watches him make one reckless drive after another, as the record discloses in this case, crashing into other automobiles, a cattle-guard, into and across ditches, and repeatedly acts without judgment or discretion and without regard for the rights of other, it would seem that there would be no difficulty in concluding that he is responsible as a principal for whatever might result therefrom, provided it could have been reasonably anticipated as a result.38 This describes much more egregious conduct than would expose a person to prosecution under the Superior Court’s application of accomplice liability to motor vehicle offenses. We also are not certain that Brewer’s holding sits comfortably with the circumstances presented in Venable. And our skepticism of Venable is only heightened by the fact that we cannot find, in the 55 years since its publication, 38 Id. at 601 . 15 any Texas case that has cited it for the proposition adopted by the Superior Court here.39 Likewise, we are not prepared to rely on State v. Millette40 to extend accomplice liability to driving-under-the-influence charges. It is true that, in Millette, the defendant was charged with aiding in the commission of a DUI. But that is not instructive here because Vermont’s motor vehicle code, unlike Delaware’s, “establishes criminal liability for one who ‘aids, abets, induces, procures, or causes’ the commission of a motor vehicle felony or misdemeanor, creating accomplice liability for these acts.”41 Admittedly, in State v. Lemacks,42 another case in which it was unclear who was driving at the time of an automobile accident, the Tennessee Supreme Court reviewed—and did not overturn—the defendant’s driving-under-the-influence conviction, after the prosecution had presented alternative theories of liability. But the issues before the court (jury unanimity, sufficiency of the evidence, sufficiency of the description of the charged offense in the indictment) did not relate to the validity of the prosecution’s theory. 39 In fact, Venable has not been cited with approval by any court—other than the Superior Court— for the proposition adopted by the court in this case. 40 795 A.2d 1182 . 41 Id. at 1183 . 42 996 S.W.2d 166 . 16  In the two other cases where the driver at the time of the accident was unknown, an occupant in another car involved in the accident was killed. In State v. Satern,43 the Iowa Supreme Court determined that the state’s criminal code specifically permitted a finding of vicarious liability for drunk driving that results in vehicular homicide. The court “perceive[d] no meaningful distinction between imposing criminal liability for an unintended death or injury resulting from drunk driving, and imposing criminal consequences for unintended deaths that occur in furtherance of other criminal behavior.”44 In State v. Taylor, the Florida Supreme Court observed that, in a manslaughter prosecution, it was proper to find criminal liability where “‘the owner of . . . an automobile knowingly puts that instrumentality in the immediate control of a careless and reckless driver, sits by his side, and permits him without protest so recklessly and negligently to operate the car as to cause the death of another.’”45 We see both of these cases as presenting a straightforward application of the theory of accomplice liability to serious violent crimes as defined in the states’ respective criminal codes. They do not, however, persuade us that our state has—or would in an appropriate case—impose criminal liability on a person who merely permits a person to drive while under the influence. 43 516 N.W.2d 839 . 44 Id. at 842–43. 45 Taylor, 83 So.2d at 880 (quoting Story v. United States, 16 F.2d 342 , 344 (D.C. Cir. 1926)). 17  Third, the Superior Court’s conjecture that under Delaware law individuals who permit their vehicles to be driven by intoxicated persons are guilty themselves of driving under the influence has potentially far-reaching—and likely unintended— ramifications. For instance, might the Superior Court’s extension of accomplice liability extend to other motor vehicle offenses? Will a mother face criminal penalties when she permits her absent-minded teenager to drive her car when the teenager drives carelessly? Is a kind-hearted friend responsible for the speeding tickets of his lead-footed companion to whom he lends his car? Although at first blush these scenarios may seem far-fetched, we see no reason why the extension of accomplice liability to motor vehicle offenses as posited by the Superior Court, without some limiting principle, could not lead to such unusual results.46 E. Finally, we address the Superior Court’s concern that it “would frustrate the application of Delaware’s recidivist statute . . . if [a] recidivist [could] just point to any elemental difference on the outer edges of the other state’s substantive DUI statute and compel proof that [that] elemental difference played no part in his or her prior convictions.”47 This is so, according to the court, because many states consider 46 These examples also illustrate that positing a novel theory of criminal liability in a case where it is neither squarely at issue nor argued by the parties is a fraught exercise; indeed, for that reason, we do not speak definitively on it here. 47 Daniels, 2019 WL 6869071 , at *5. 18 first offenses that do not result in an accident or injury as low-level offenses that are often adjudicated in municipal and magistrate courts. These courts “will often lack procedures and formalities present in most criminal prosecutions that would generate even the limited class of Shepard documents . . . that a Court might need to resort to.”48 Although the Superior Court’s disquiet is perhaps understandable, it must, in our view, give way to considerations of faithfulness to the statute and fairness to the defendant. IV. WE REVERSE the Superior Court’s determination that Daniels’ 2012 New Jersey conviction under N.J. § 39:4-50 is a “prior or previous conviction” for sentencing purposes under Section 4177(d)(3), VACATE its December 16 corrected sentencing order, and REMAND for resentencing consistent with this opinion. 48 Id. The absence of Shepard documents will, as we understand the Superior Court’s concern, unfairly inure to the benefit of repeat DUI offenders. 19

2021-01-26 23:00:38.307025+00

http://afcca.law.af.mil/content/afcca_opinions/cp/michalec_-_39771.u.pdf

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39771 ________________________ UNITED STATES Appellee v. Ryan J. MICHALEC Technical Sergeant (E-6), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 26 January 2021 ________________________ Military Judge: Shaun S. Speranza. Approved Sentence: Dishonorable discharge, confinement for 20 years, forfeiture of all pay and allowances, and reduction to E-3. Sentence ad- judged 23 May 2019 by GCM convened at Joint Base Charleston, South Carolina. For Appellant: Major Mark J. Schwartz, USAF; Nathan Freeburg, Es- quire. For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Mary Ellen Payne, Esquire. Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military Judges. Judge MEGINLEY delivered the opinion of the court, in which Senior Judge POSCH and Judge RICHARDSON joined. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ MEGINLEY, Judge: A general court-martial composed of officer members convicted Appellant, contrary to his pleas, of one specification of aggravated sexual contact with a  United States v. Michalec, No. ACM 39771 child under 12 years of age on divers occasions by touching with his hands her breasts, inner thighs, buttocks, genitalia, and groin; one specification of rape of a child under 12 years of age on divers occasions by penetrating her vulva with his penis; and one specification of rape of a child under 12 years of age by penetrating her genital opening with his finger, all in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 ; 1,2 and one specifi- cation of indecent conduct, in violation of Article 134, UCMJ, 10 U.S.C. § 934 . 3 Appellant’s convictions involve sexual misconduct he committed against his stepdaughter, KT. The panel of officer members sentenced Appellant to a dis- honorable discharge, confinement for 20 years, forfeiture of all pay and allow- ances, and reduction to the grade of E-3. The convening authority deferred all adjudged forfeitures from 6 June 2019 until action, disapproved the adjudged forfeitures at action, and waived man- datory forfeitures for a period of six months after action for the benefit of Ap- pellant’s wife and dependent children. Otherwise, the convening authority ap- proved the sentence as adjudged. On appeal, Appellant raises seven issues: (1) whether the military judge erred in admitting evidence under Mil. R. Evid. 414 for propensity purposes that did not meet the standard for admission and was more prejudicial than probative; (2) whether the military judge erred by failing to suppress evidence illegally obtained from Appellant’s phone, and whether a subsequent warrant, issued nearly two years later to search that same device for evidence already known, was unreasonable under the Fourth Amendment; 4 (3) whether trial 1 The conduct underlying the three specifications in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 820 , occurred between 1 October 2007 and 27 June 2012. Thus, Article 120, UCMJ, as amended by the National Defense Au- thorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136 , 3257 (6 January 2006), applied to Appellant’s conduct. See Manual for Courts-Martial, United States (2016 ed.) (2016 MCM), App. 28, at A28–1. 2 Regarding the specification alleging Appellant raped KT by penetrating her genital opening with his finger on “divers occasions,” the military judge, pursuant to Rule for Courts-Martial 917, sua sponte, found Appellant not guilty of the words “on divers oc- casions.” Another specification charged under Article 120, UCMJ, and two specifica- tions under Article 134, UCMJ, were withdrawn and dismissed after arraignment. 3 Unless otherwise noted, all other references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules for Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM), including Ap- pendix 28. 4 U.S. CONST. amend. IV. 2  United States v. Michalec, No. ACM 39771 defense counsel’s numerous pretrial and trial errors cumulatively deprived Ap- pellant of his right to effective assistance of counsel 5 guaranteed by the Sixth Amendment; 6 (4) whether Appellant was subject to unlawful pretrial punish- ment in violation of Article 13, UCMJ, 10 U.S.C. § 813 ; (5) whether the evi- dence underlying his convictions under Charge I of the Article 120, UCMJ, of- fenses are legally and factually insufficient; and (6) whether trial counsel com- mitted prosecutorial misconduct by using the word “grooming” in his closing argument and presentencing. We also identify and resolve an additional point of contention raised by Appellant, in that (7) he asserts he “was instructed to not testify on [his] own behalf.” 7,8 As to Appellant’s fourth claim that he was subjected to unlawful pretrial punishment, we note that in presentencing, Appellant denied being punished in any way prior to trial in violation of Article 13, UCMJ. Nothing in the record suggests Appellant was subjected to illegal pretrial punishment. Appellant is now requesting this court consider matters outside the record. Based on our review, we find this assertion does not require further discussion or warrant relief. See United States v. Matias, 25 M.J. 356 , 361 (C.M.A. 1987); see also United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020). As to Appellant’s sixth claim that trial counsel committed prosecutorial misconduct by using the word “grooming” in his findings argument, pursuant to Matias, we do not find this assertion requires further discussion or warrant relief. 9 Finally, as to his sev- enth claim, that Appellant was instructed not to testify on his own behalf, the court notes that the military judge specifically asked Appellant, “Was that your personal decision?” Appellant responded, “Yes, your honor.” We do not find this assertion requires further discussion or warrant relief. 5In light of Appellant’s claims of ineffective assistance of counsel, we ordered trial defense counsel to provide responsive declarations. See United States v. Jessie, 79 M.J. 437 , 444 (C.A.A.F. 2020); United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). 6 U.S. CONST. amend. VI. 7Appellant personally asserts issues (4), (5), (6), and (7) pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 8 Appellant did not expressly identify (7) as an issue, but raised it in the context of whether the evidence underlying his convictions under Charge I of the Article 120, UCMJ, offenses were legally and factually insufficient. 9 See United States v. Bressler, No. ACM 38660, 2016 CCA LEXIS 746 , at *78 (A.F. Ct. Crim. App. 16 Dec. 2016) (unpub. op.) (concluding use of the word “grooming,” as ar- gued by trial counsel, “was used as a non-scientific term and in a manner easily un- derstood by a lay member”). 3  United States v. Michalec, No. ACM 39771 Finding no error materially prejudicial to Appellant’s substantial rights, we affirm the findings and sentence. I. BACKGROUND KT, Appellant’s stepdaughter, was born in early 2001 and lived in Alaska until Appellant married her mother, KB, in August 2005. Shortly after they married, Appellant and KB, along with KT and KT’s younger half-brother, RM, moved to Little Rock Air Force Base (AFB), Arkansas, where they lived to- gether as a family. 10 The Government’s case against Appellant about his conduct with KT relied primarily on her testimony. When she was about seven years old, Appellant caressed her breasts, inner thighs, and buttocks, over her clothing. KT remem- bered Appellant touching her after she asked Appellant “what sex was.” This happened about once a month when they lived in Arkansas, and usually when they were alone in the home, including when KT was in her bedroom. In December 2009, the family moved to Pensacola, Florida, and lived on a military installation. KT testified that Appellant continued to touch her inap- propriately, which progressed to touching underneath her clothing. KT stated: It depended on the time of day and who was in the house, if an- ybody was in the house. It would usually start off with him say- ing nothing, coming to me in my bedroom, and either getting onto the bed with me or moving my stuff around to get to me, and he would pull my pants down and start touching my back- side and pull my shirt up so that he could see everything and try to remove my clothing as much as possible and it would be rub- bing and caressing and trying to like hold me. KT was nine years old when Appellant began to directly touch her buttocks, breasts, inner thigh, and vagina. Appellant’s sexual activity with KT progressed when he inserted his finger into KT’s vagina. Appellant put the tip of one of his fingers into her vagina for a few seconds while they were in her bedroom. KT tried to push his hand away and told him to stop. Appellant stopped when he heard RM return home and enter the home. Appellant then quickly left the room. Until Appellant’s conduct became the subject of investigation, KT never told anyone about Appellant touching her, including her mother, with whom she did not have a close rela- tionship. 10While KB is the biological mother to KT’s younger half-brother, RM, Appellant is not his biological father, but Appellant adopted him during the marriage. 4  United States v. Michalec, No. ACM 39771 KT further testified that, while still in Florida, Appellant raped her when she was around ten or eleven years old. KT stated: We had just finished arguing. It had been like I don’t know how long since we had argued and then we left it and I went into my room. Then he came into my room, he didn’t say anything at all, I believe I was doing my makeup or messing with my makeup or something and I got up and he started to undress me and I tried to push him away from me and get his hands off of me. He pulled my shirt off and pulled my pants off, pulled the rest of my cloth- ing off, and I end up on the bed. I tried to get off the bed and he pulled his pants down quickly and flipped me to where I was on my back and then he started to rape me. KT stated she did not really know what Appellant was doing to her when this happened, but she was yelling at him and telling him to stop, which he did not. KT was looking at the ceiling while Appellant was “thrusting [his penis inside her] and trying to hold [her] arms down because [she] was trying to push him off.” Appellant ejaculated in her, which feeling she described as “liquid and pain and like my entire lower half was on fire.” After he left the room, KT sat in the shower for “probably about an hour.” She also saw blood in the shower. Again, KT did not tell anyone what had happened until she disclosed Appel- lant’s conduct to investigators. KT testified that shortly after Appellant raped her, and when she was in the fifth grade, she went to the Naval Exchange (NEX) to buy a pregnancy test, as she had already started her menstrual cycle and learned about pregnancy at school. She went to the NEX with her friend, AP. KT took the pregnancy test in a bathroom at the NEX; the results were negative. A couple of months later, Appellant again raped KT in her bedroom. Much like the first time, they had been arguing, and afterwards, he entered her room: He again starts taking off my clothing. This time I was trying harder to get him to stop and we were kind of fighting back and forth. It started with the shirt, he got the shirt off, I tried to run away, and then he got my pants down and he threw me onto the bed that time and flipped me over onto my back and the same thing happened. When Appellant was on top of her, he was naked. Like the first time, KT felt Appellant thrusting his penis inside of her, and he eventually ejaculated inside her; she could feel his ejaculate “running down [her] leg.” KT again did not tell anyone because “she was terrified.” 5  United States v. Michalec, No. ACM 39771 In May 2012, after finishing fifth grade, KT moved back to Alaska to live with her maternal grandparents. Appellant and KB were officially divorced a month later in June 2012, and shared custody of RM after the divorce. Appel- lant eventually remarried. In 2013, KT left Alaska to live with her mother, but returned to Alaska in May 2017 to again live with her grandparents. Soon after moving back to Alaska, KT underwent counseling. During a ses- sion in October or November 2017, KT disclosed that she had been sexually assaulted by Appellant. An investigation into her allegations and Appellant’s conduct was initiated in December 2017 during which KT disclosed the scope of Appellant’s sexual abuse. II. DISCUSSION A. Evidence Admitted Under Mil. R. Evid. 414 1. Additional Background On 26 August 2016, Appellant met a person he thought was a girl through the internet platform MeetMe. The person informed Appellant that she was a 15-year-old named “Sam.” Appellant disclosed he was 36 years old, and ex- plained that he could not engage in a “sexting” relationship because she was only 15 years old. Nonetheless, the conversation quickly escalated, and despite Appellant’s concern—expressed after the fact—that he was being “set up,” Ap- pellant and “Sam” texted back and forth, with Appellant sending, requesting and receiving sexually explicit pictures. Some of the messages Appellant sent “Sam” included “show me your p*ss[y] first,” “you stick c*ck inside p*ssy,” “wow your p*ssy is beautiful,” “you have to work for this c*ck,” and “will you make me a video while you rub and finger it.” Nearly four hours after “Sam” and Appellant began texting, an individual claiming to be “Sam’s” “father” contacted Appellant and told him “if you don’t contact me immediately I’m contacting the Charleston [C]ounty [S]heriff’s [D]epartment[.] You stand a better chance of straighten[ing] this mess out with me th[a]n [with] my [w]ife, call me.” Appellant replied and said he would call “Sam’s” father. The same day “Sam’s” “father” instructed Appellant to call him, Appellant told his wife about his communications with “Sam.” 11 Appellant explained he was “sexually frustrated” and had “downloaded a phone application.” Appel- 11 Information in this paragraph is derived from the military judge’s findings of fact from his ruling on the defense motion to suppress. The military judge’s findings of fact are supported by the record and we adopt them for our analysis. 6  United States v. Michalec, No. ACM 39771 lant said he asked a female to send him nude photographs and she did. Alt- hough he initially thought “Sam” was 19 years old based on her profile, the female told Appellant that she was 15 years old. Appellant admitted to his wife he had asked the girl to send him nude photographs and the girl had done so. Appellant told his wife of his behavior because “Sam’s” “father” found out what Appellant had done and threatened to report Appellant to law enforcement unless he paid him $2,500.00. Appellant admitted to his wife he was communi- cating with a 15-year-old girl and deleted all photographs, texts, and phone numbers related to his communication with “Sam” and her “father.” The “fa- ther” continued to call Appellant and demand money. Appellant gave his phone to his wife, who later the same day contacted Appellant’s supervisor, Senior Master Sergeant (SMSgt) EM, relaying substantially the same information that Appellant provided to his wife. SMSgt EM contacted the unit’s First Ser- geant, who in turn contacted the Air Force Office of Special Investigations (AFOSI). AFOSI agents subsequently interviewed Appellant’s wife, who re- counted what Appellant told her. Later in the day on 26 August 2016, after AFOSI agents interviewed Ap- pellant’s wife, the agents sought and received verbal search authorization from a military magistrate to seize Appellant’s phone and to search for any media or communications related to child pornography or sexual abuse of a child. A written search authorization was issued two days later. An extraction of the phone revealed no evidence or images that could be considered child pornogra- phy; Appellant had deleted the MeetMe application. Early in 2018, after KT came forward with her allegations against Appel- lant, AFOSI agents sought and received a second search authorization to search Appellant’s phone. At trial, the Government introduced evidence re- lated to Appellant’s communications with “Sam” under Mil. R. Evid. 414 to show Appellant had a propensity to commit the charged sexual crimes against KT. 12 2. Law Mil. R. Evid. 414 permits the admission of evidence of a prior act of “child molestation” to show propensity to commit a charged act of “child molestation.” A military judge’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. United States v. McElhaney, 54 M.J. 120 , 129 (C.A.A.F. 2000) (citing United States v. Schlamer, 52 M.J. 80 , 84 (C.A.A.F. 1999); United States v. Johnson, 46 M.J. 8 , 10 (C.A.A.F. 1997)). While we review a military judge’s decision to admit evidence for an abuse of discretion, the threshold 12 There is nothing in the record regarding the identity of “Sam” or her “father.” The record is silent whether Appellant was disciplined for his conduct. 7  United States v. Michalec, No. ACM 39771 question with respect to the admissibility of the evidence in this case—whether the evidence constitutes evidence that Appellant committed another offense of “child molestation” under Mil. R. Evid. 414—is one of law, reviewed de novo. See United States v. Yammine, 69 M.J. 70 , 73 (C.A.A.F. 2010) (citing United States v. DeCologero, 530 F.3d 36 , 58 (1st Cir. 2008)). An offense of “child molestation” means “an offense punishable under the Uniform Code of Military Justice, or a crime under federal law or the law of a state,” that involves, inter alia, “any conduct or attempted conduct prohibited by Article 120[, UCMJ, 10 U.S.C. § 920 ,] and committed with a child . . . .” See Mil. R. Evid. 414(d)(2)(A), (G) (2016 MCM). The rule establishes a presumption in favor of admitting evidence of prior similar crimes in child molestation cases to show an appellant’s predisposition to commit the designated crimes under the rule. United States v. Tanner, 63 M.J. 445 , 448 (C.A.A.F. 2006) (citing United States v. Wright, 53 M.J. 476 , 482–83 (C.A.A.F. 2000)). Before admit- ting evidence under Mil. R. Evid. 414, a military judge must make three threshold findings: (1) that the accused is charged with an offense of child mo- lestation, (2) that the evidence proffered is evidence of the accused’s commis- sion of another offense of child molestation, and (3) that the evidence is rele- vant under Mil. R. Evid. 401 and 402. United States v. Ediger, 68 M.J. 243 , 248 (C.A.A.F. 2010); Wright, 53 M.J. at 482 (citations omitted). If the three threshold factors are met, the military judge applies a Mil. R. Evid. 403 balancing test. Ediger, 68 M.J. at 248. In Wright, our superior court set forth several factors to consider when conducting this test. They include: (1) strength of proof of the prior act (“conviction versus gossip”), (2) probative weight of the evidence, (3) potential for less prejudicial evidence, (4) distraction of the fact finder, (5) time needed for proof of prior conduct, (6) temporal prox- imity, (7) frequency of the acts, (8) presence or lack of intervening circum- stances, and (9) relationship between the parties. Wright, 53 M.J. at 482. This list of factors is “neither exclusive nor exhaustive.” United States v. Dewrell, 55 M.J. 131 , 138 (C.A.A.F. 2001). Although the court is not required to make detailed findings of fact under Mil. R. Evid. 403, it is important that the court fully evaluate the evidence and make a clear record of the reason behind its findings. Id. (citing United States v. Guardia, 135 F.3d 1326 , 1331 (10th Cir. 1998)); see also Wright, 53 M.J. at 482 (citations omitted). We will give the evidentiary ruling less deference when the military judge does not articulate the balancing analysis on the record. United States v. Berry, 61 M.J. 91 , 96 (C.A.A.F. 2005). A decision to admit or exclude evidence under Mil. R. Evid. 403 is also reviewed for an abuse of discretion. McElhaney, 54 M.J. at 129–30 (citing United States v. Lake, 36 M.J. 317 , 322 (C.M.A. 1993)). “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion.” United States v. Solomon, 72 M.J. 176 , 179 8  United States v. Michalec, No. ACM 39771 (C.A.A.F. 2013). The challenged action must be “arbitrary, fanciful, clearly un- reasonable,” or “clearly erroneous.” United States v. Miller, 46 M.J. 63 , 65 (C.A.A.F. 1997) (citation omitted); United States v. Travers, 25 M.J. 61 , 62 (C.M.A. 1987). 3. Analysis Appellant argues that the propensity evidence of Appellant’s communica- tions with “Sam” fails the threshold Ediger requirements. We disagree and find the military judge did not abuse his discretion when he admitted Appellant’s communications under Mil. R. Evid. 414. In a written ruling, the military judge explained his rationale, applying the three criteria set forth in Mil. R. Evid 414(c). The military judge found: (1) that Appellant was charged with several acts of child molestation; (2) that the proffered evidence was evidence of Appel- lant’s commission of at least an attempt to commit sexual abuse of a child un- der Mil. R. Evid. 414(d)(2)(A) and (G), in that the evidence showed Appellant “intend[ed] to gratify his sexual desire by communicating with [a person] who[m] he believe[d] to be a female child [named ‘Sam’], [and] [Appellant’s] propensity to commit offenses of child molestation tend[ed] to make the fact that [Appellant] committed sexual acts and contacts and indecent acts upon KT more probable than without the evidence;” and, (3) in conducting the test for relevance under Mil. R. Evid. 401 and 402, the issue of “[w]hether [Appel- lant] intended to gratify his sexual desire when [he] allegedly touch[ed] KT and commit[ed] sexual acts and contacts and indecent acts upon KT are facts of consequence in determining the findings in this case.” As to the second part of the Ediger “two-step analysis,” Appellant argues the propensity evidence fails the balancing test of Mil. R. Evid. 403. See Ediger, 68 M.J. at 248. Again, we disagree. Having found this communication met the three threshold criteria, the military judge considered the Wright factors and conducted a meaningful Mil. R. Evid. 403 balancing analysis, which considered factors weighing both in favor and against admission of the proffered evidence. The military judged concluded that the frequency of Appellant’s communica- tions with “Sam” (the fact that Appellant’s act occurred over the course of one day) and his lack of a formal relationship with “Sam” weighed against admis- sibility. However, the military judge found: (1) the uncharged offense would be proven, in part, by forensic evidence (extracted from Appellant’s phone); (2) the strength of the proof was not mere gossip; (3) there was no potential for less prejudicial evidence; (4) the factfinder would not be distracted by the focused testimony and forensic evidence; and (5) the probative weight of Appellant’s propensity to commit offenses of child molestation, and the evidence of his in- tent to gratify his sexual desires with a child, all weighed in favor of admissi- bility. The military judge noted that although Appellant’s communication with “Sam” happened over nine years after the earliest charged offense against KT, 9  United States v. Michalec, No. ACM 39771 “the temporal proximity between the charges and the other offense of child molestation [was] not unreasonable or prohibitively long.” Ultimately, the military judge ruled “the probative value of this presump- tively admissible evidence is not substantially outweighed by the dangers of unfair prejudice.” Where a military judge conducts a proper Mil. R. Evid. 403 balancing test and articulates his analysis on the record, “the ruling will not be overturned unless there is a ‘clear abuse of discretion.’” United States v. Manns, 54 M.J. 164 , 166 (C.A.A.F. 2000). Based on the facts presented, we find the military judge did not abuse his discretion in allowing the Mil. R. Evid. 414 evidence to be admitted. B. Motion to Suppress Evidence Obtained from Appellant’s Cell Phone Related to His Workplace Masturbation 1. Additional Background In addition to the crimes committed against his stepdaughter KT, Appel- lant was also charged with indecent conduct. In the summer of 2016, Appellant video-recorded himself masturbating at his workplace while in uniform; that video was discovered when AFOSI agents conducted their search of his phone while searching for evidence related to child pornography or sexual abuse of “Sam.” This misconduct is the crux of Charge II and its Specification. Trial defense counsel sought to suppress the video of Appellant masturbating at work from being introduced, arguing that AFOSI agents went beyond the pa- rameters of the authorization to search Appellant’s phone. The military judge denied this motion. On appeal, Appellant renews his objection that the military judge should have suppressed this video because it was illegally obtained and the military judge abused his discretion by admitting this evidence. On 26 August 2016, the day Appellant communicated with “Sam” and later disclosed those communications to his wife, AFOSI agents sought a verbal search authorization from a military magistrate to seize Appellant’s phone and to search the entire phone for any media or communications related to child pornography or sexual abuse of a child. The military magistrate found probable cause to search Appellant’s phone for evidence relating to “Sam” or her “fa- ther,” and granted agents authorization to search the entire phone for videos, text messages, or photographs related to the case. Pursuant to this verbal au- thorization, AFOSI agents used the Cellebrite Universal Forensic Extraction Device (UFED) to extract the data on Appellant’s phone. 13 13According to Special Agent KC, a UFED is an “extraction electronic device that ex- tracts cell phone data. It doesn’t make a mirror image of [a phone], it just extracts all 10  United States v. Michalec, No. ACM 39771 Before searching the extracted data for evidence of child pornography or sexual abuse of a child, Special Agent KC, on 29 August 2016, drafted an Air Force Form 1176, Authority to Search and Seize, to document and memorialize the verbal search authorization, allowing AFOSI to seize, copy, and analyze “All phone calls, text messages, and messaging platform records related to third party applications concerning indecent photos of a minor.” (Emphasis added). In the agent’s supporting affidavit, he stated that Appellant’s phone contained “explicit information and nude images within its files;” Appellant used the ap- plication MeetMe, and while using the application, he accepted nude images and requested photos from the underage female; and, after disclosing the in- formation to his wife, Appellant deleted the text messages and photographs on the device shared between Appellant and the female identified as “Sam.” This authorization was signed by the same military magistrate who authorized the verbal search authorization. Special Agent KC testified that the Cellebrite program created an extrac- tion report, which generates subfolders for the investigator, and in order to go into any other folder the report generates, the agent would have to proactively click the hyperlinks in the folder. When stated by trial defense counsel that the agents had no authority to click on the video folder, Special Agent KC did not agree with that premise. Special Agent KC later told the military judge that the verbal authorization allowed agents to “search the phone . . . for images of child pornography, communications with a minor, anything explicit, content with a minor.” Moreover, his understanding from the magistrate was that the agents were not just limited to looking at photographs, despite the fact that when both the 26 August 2016 verbal and 29 August 2016 written search au- thorizations were granted, there was no indication Appellant had sent videos or exchanged videos with “Sam.” In September 2016, with the written authorization in hand, Special Agent JR conducted a search of the UFED extraction report that was obtained from Appellant’s phone. Special Agent JR testified that the aforementioned MeetMe application transmits pictures, videos, and text messaging, and therefore, he believed he had the authorization to search in all three media. Special Agent JR stated that he searched the extraction report video section because “any- thing involving that messaging platform . . . could be anything from a text to a picture to an emoji to a video,” and he wanted to check the folder to make sure data that it can.” The agent noted that because every phone is different, the data that can be extracted depends on the phone. He testified, “There’s times you’ll hook up a certain phone and it won’t pull at all. . . . As far as what data it will pull[,] it will pull deleted files, not always[,] but for the most part.” 11  United States v. Michalec, No. ACM 39771 they were not missing anything concerning the MeetMe application. Special Agent JR stated, I was looking in the video file because as I read the [Air Force Form] 1176 of what I’m authorized and have probable cause to search for, knowing that messaging platform records to mean for any application, it could be an image, video, picture . . . or simple text message. I wanted to look and make sure there was nothing sent via video, you know, through a message essentially that wasn’t popping up. Special Agent JR opened the video folders and discovered that on two occa- sions, while at his regular duty location at Joint Base Charleston, South Car- olina, and during duty hours while in uniform, Appellant video-recorded him- self masturbating in his immediate work space and in the unit’s restroom. 14 Investigation revealed the incidents occurred in the summer of 2016, but did not reveal any witnesses to the acts. Once Special Agent JR saw the videos, he advised his leadership what he found. 15 The UFED extraction revealed no evidence or images that could be consid- ered child pornography. AFOSI agents sent Appellant’s phone to the Depart- ment of Defense Cyber Crime Center (DC3) laboratory for further analysis, as the agents sought to recover the deleted information. In June 2018, after KT came forward with allegations that Appellant had raped her—and nearly two years after the initial search of Appellant’s phone— AFOSI agents went back and reviewed Appellant’s case with respect to his acts of masturbation and determined it was evidence of indecent conduct. Agents sought, and received, a second written authorization to search Appellant’s phone, which included a search for “[a]ll images and videos related to third party applications concerning indecent photos of a minor, and all images and videos relating to [Appellant] engaging in indecent conduct in the workplace.” (Emphasis added). Appellant argues this search authorization was unreason- able. 16 14 Appellant was not charged with an offense relating to the restroom video. 15Appellant was given a verbal counseling by his commander for masturbating at work after the videos were discovered. The record suggests the counseling occurred before KT came forward with her allegations. 16 The court notes the genesis of the second written authorization. When trial counsel asked Special Agent KC who suggested the second written authorization, Special Agent KC responded, “You did.” In this court’s view, Appellant basically argues that 12  United States v. Michalec, No. ACM 39771 In their motion to suppress, trial defense counsel acknowledged that, based on the information agents provided to the military magistrate regarding Ap- pellant’s communication with “Sam,” it was lawful and reasonable to search Appellant’s phone, specifically the “call log folder,” the applications folder, and the “SMS messages folder” (generated from the UFED report) because the first written authorization (29 August 2016) was “very specific.” However, trial de- fense counsel argued that AFOSI agents exceeded the 29 August 2016 written search authorization when they looked into other areas of Appellant’s phone, specifically the videos folder from the UFED report, which led to the discovery of Appellant’s workplace masturbation videos. In his ruling, the military judge found that [a]gents were authorized to search the entire phone for evidence related to the offenses of child pornography and sexual abuse of a child. Specifically, the agents were authorized by the terms of the search authorization to search for “all phone calls, text messages, and messaging platform records related to third party applica- tions concerning indecent photos of a minor.” (Emphasis added) [Appellant’s] communications through third party applications, including text messaging, that concerned the indecent photos of a minor could reasonably have been recorded on any media ca- pable of being transmitted by such applications. Accordingly, “media” and their “records related to third party communication applications” reasonably could be found in the “videos” of the UFED report because those videos reasonably could be attached to text messages.[ 17] [Special Agent R] was reasonably searching videos on the UFED extraction pursuant to a properly scoped the second written search authorization was the Government’s attempt to cure any deficiency in the first written search authorization. We do not necessarily disagree; however, given our ruling, we do not believe the second written search authorization was necessary. Further, Appellee argues that trial defense counsel did not challenge that the second written search was unconstitutional, and as such, this court should consider the issue waived, citing United States v. Blackburn, 80 M.J. 205 , 209 (C.A.A.F. 2020) (citation omitted) (“Suppression arguments not raised at trial are waived under [Mil. R. Evid.] 311(d)(2)(A).”). The Defense did not challenge the validity of the second written search authorization in its motion to suppress, and the military judge did not address the lawfulness of the second written search authorization in his ruling. Appel- lee argues this court should consider this issue regarding the second written authori- zation waived. We agree that Appellant waived this issue. 17 The military judge, in a note in his ruling, found, “In fact, the masturbation video’s file path, identified in the UFED report as a ‘video,’ indicated it was transmitted via MMS text message.” 13  United States v. Michalec, No. ACM 39771 search authorization when he saw the masturbation video. The masturbation video was therefore in plain view. 2. Law a. Standard of Review We review a military judge’s ruling on a motion to suppress for an abuse of discretion, viewing the evidence in the light most favorable to the prevailing party. United States v. Hoffmann, 75 M.J. 120 , 124 (C.A.A.F. 2016) (citation omitted). A military judge abuses his discretion when: (1) his findings of fact are clearly erroneous; (2) he applies incorrect legal principles; or (3) his “appli- cation of the correct legal principles to the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341 , 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198 , 199 (C.A.A.F. 2008)). “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72 M.J. at 179 (citation omitted). b. Probable Cause and Search Authorizations The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend IV. It requires war- rants and search authorizations to particularly describe the place to be searched and things to be seized so that the search will be “carefully tailored to its justifications.” Maryland v. Garrison, 480 U.S. 79 , 84 (1987). “The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general explora- tory rummaging in a person’s belongings.” United States v. Richards, 76 M.J. 365 , 369 (C.A.A.F. 2017) (citing United States v. Carey, 172 F.3d 1268 , 1272 (10th Cir. 1999)). However, “the proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” Id. (citing United States v. Richards, 659 F.3d 527 , 541 (6th Cir. 2011)). “[I]t is folly for a search warrant to attempt to structure the mechanics of the search and a warrant imposing such limits would unduly restrict legitimate search objectives.” Id. (citing United States v. Burgess, 576 F.3d 1078 , 1094–95 (10th Cir. 2009)). The CAAF went on state in Richards, In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow in- vestigators access to places where incriminating materials may be hidden, yet not so broad that they become the sort of free-for- 14  United States v. Michalec, No. ACM 39771 all general searches the Fourth Amendment was designed to prevent. On one hand, it is clear that because criminals can—and often do—hide, mislabel, or manipulate files to conceal criminal activ- ity, a broad, expansive search of the hard drive may be re- quired . . . . On the other hand, . . . granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a “limited search into a general one.” United States v. Stabile, 633 F.3d 219 , 237 (3d Cir. 2011) (citations omitted). Id. at 370. Data stored within a cell phone falls within the Fourth Amendment’s pro- tection. United States v. Wicks, 73 M.J. 93 , 99 (C.A.A.F. 2014). Appellant argues there was no probable cause to search for videos on Ap- pellant’s phone. Under Mil. R. Evid. 315(f)(1), a military search authorization “must be based upon probable cause.” Probable cause exists when there is a reasonable belief that the person, property, or evidence sought is located in the place to be searched. Mil. R. Evid. 315(f)(2). “Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate’s deter- mination.” United States v. Leon, 468 U.S. 897 , 914 (1984) (internal quotation marks and citations omitted). “Close calls will be resolved in favor of sustaining the magistrate’s decision.” United States v. Monroe, 52 M.J. 326 , 331 (C.A.A.F. 2000) (quoting United States v. Maxwell, 45 M.J. 406 , 423 (C.A.A.F. 1996)). A search authorization should not be found invalid by analyzing the under- lying affidavit “in a hypertechnical, rather than a commonsense, manner.” United States v. Clayton, 68 M.J. 419 , 423 (C.A.A.F. 2010) (quoting Illinois v. Gates, 462 U.S. 213 , 236 (1983)). “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398 , 403 (2006) (citations omitted). In assessing the reasonableness of a search, we weigh the degree of the intrusion of the person’s privacy against the degree to which the search promotes a legitimate governmental interest. United States v. Gurczynski, 76 M.J. 381 , 386 (C.A.A.F. 2017) (citing Riley v. California, 573 U.S. 373 , 385 (2014)). When reviewing a search authorization, we “do not review a probable cause determination de novo;” rather we assess whether “the authorizing official had a ‘substantial basis’ for finding probable cause.” Hoffmann, 75 M.J. at 125 (ci- tation omitted). “A substantial basis exists ‘when, based on the totality of the circumstances, a common-sense judgment would lead to the conclusion that there is a fair probability that evidence of a crime will be found at the identified 15  United States v. Michalec, No. ACM 39771 location.’” United States v. Nieto, 76 M.J. 101 , 105 (C.A.A.F. 2017) (quoting United States v. Rogers, 67 M.J. 162 , 165 (C.A.A.F. 2009)). We give “great def- erence” to the magistrate’s probable cause determination because of “the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Id. However, this deference is “not boundless,” and a reviewing court may conclude that “the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances.” Id. (citing Leon, 468 U.S. at 915 ). Probable cause requires the demonstration of “a sufficient nexus between the alleged crime and the specific item to be seized.” Id. at 106. (cita- tions omitted). In conducting this review, we look to the information that the authorizing official had at the time he made his decision. United States v. Cow- gill, 68 M.J. 388 , 391 (C.A.A.F. 2010) (citations omitted). We ordinarily afford the magistrate’s determination of probable cause great deference, but we recognize three exceptions to this general rule: (1) when the affidavit upon which the determination was based was prepared with knowing or reckless falsity; (2) when the magistrate is not neutral and detached or is serving as “a rubber stamp” for the police; or (3) when the affidavit fails to provide a substantial basis for a finding of probable cause or the determination is “a mere ratification of the bare conclusions of others.” United States v. Carter, 54 M.J. 414 , 419 (C.A.A.F. 2001) (quoting Leon, 468 U.S. at 914–15). Searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within “a few specifically es- tablished and well-delineated exceptions.” Hoffmann, 75 M.J. at 123–24 (inter- nal quotation marks omitted) (quoting Wicks, 73 M.J. at 99). Riley v. California is a seminal case addressing cell phones. “[M]odern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. . . . [as] a significant majority of American adults now own such phones.” 573 U.S. at 385. The Supreme Court went on to explain, Modern cell phones are not just another technological conven- ience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technol- ogy now allows an individual to carry such information in his hand does not make the information any less worthy of the pro- tection for which the Founders fought. Id. at 403 (citation omitted). In United States v. Osorio, this court addressed requirements regarding search warrants for computers—and by extension for stored electronic or digi- tal media—when evidence of another crime is discovered, stating, 16  United States v. Michalec, No. ACM 39771 [T]here must be specificity in the scope of the warrant which, in turn, mandates specificity in the process of conducting the search. Practitioners must generate specific warrants and search processes necessary to comply with that specificity and then, if they come across evidence of a different crime, stop their search and seek a new authorization. 66 M.J. 632 , 637 (A.F. Ct. Crim. App. 2008). c. Unlawful Searches and Good Faith Evidence obtained as a result of an unlawful search is inadmissible against the accused if the accused: (1) makes a timely objection; (2) has an adequate interest, such as a reasonable expectation of privacy, in the person, place, or property searched; and (3) exclusion of such evidence “results in appreciable deterrence of future unlawful searches . . . and the benefits of such deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3). For the good faith exception to apply, the Government must establish that law enforcement’s reliance on a defective authorization is “objectively reason- able.” Hoffmann, 75 M.J. at 127. The Government has the burden of establish- ing by a preponderance of the evidence the following: (1) the seizure resulted from a search and seizure authorization issued, in relevant part, by a magis- trate; (2) the magistrate had a substantial basis for determining probable cause existed; and (3) law enforcement reasonably and in good faith relied on the authorization. Mil. R. Evid. 311(c)(3), (d)(5)(A); Nieto, 76 M.J. at 107; see also Carter, 54 M.J. at 420 (citation omitted). The second requirement of “substantial basis” is met if the person execut- ing the search “had an objectively reasonable belief that the magistrate had a ‘substantial basis’ for determining the existence of probable cause.” Perkins, 78 M.J. 381 , 387 (quoting Carter, 54 M.J. at 422). The question is “‘whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’” Herring v. United States, 555 U.S. 135 , 145 (2009) (quoting Leon, 468 U.S. at 922 n.23). We further “consider the ob- jective reasonableness, not only of the officers who eventually executed a war- rant, but also of the officers who originally obtained it or who provided infor- mation material to the probable-cause determination.” Leon, 468 U.S. at 923 n.24. The United States Supreme Court has identified four circumstances in which the “good faith exception” will not apply: (1) where the magistrate “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;” (2) where the magistrate “wholly abandoned his judicial role;” (3) where the warrant was 17  United States v. Michalec, No. ACM 39771 based on an affidavit “so lacking in indicia of probable cause as to render offi- cial belief in its existence entirely unreasonable;” and (4) where the warrant is so “facially deficient . . . in failing to particularize the place to be searched or the things to be seized . . . that the executing officers cannot reasonably pre- sume it to be valid.” Id. at 923 (citations omitted). The United States Court of Appeals for the Armed Forces has harmonized these four exceptions with the three requirements under Mil. R. Evid. 311(c)(3) by finding Leon’s first and third exceptions to be incorporated in Mil. R. Evid. 311(c)(3)’s second prong (magistrate having a substantial basis) and Leon’s second and fourth excep- tions to be incorporated in Mil. R. Evid. 311(c)(3)’s third prong (good faith reli- ance on the search authorization). Carter, 54 M.J. at 421. The Supreme Court spoke in detail on application of the exclusionary rule in Herring. The Court stated, The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Indeed, exclusion “has always been our last resort, not our first impulse,” and our precedents establish important principles that constrain application of the exclusionary rule. . . . [T]he exclusionary rule is not an individ- ual right and applies only where it “result[s] in appreciable de- terrence.” We have repeatedly rejected the argument that exclu- sion is a necessary consequence of a Fourth Amendment viola- tion. Instead we have focused on the efficacy of the rule in deter- ring Fourth Amendment violations in the future. 555 U.S. at 140−41 (second alteration in original) (internal quotation marks and citations omitted). Regarding the deterrence of future unlawful searches, the benefits “must outweigh the costs.” The Supreme Court has never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. [T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs. The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system. [T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application. Id. at 141−42 (alterations in original) (internal quotation marks and citations omitted). 18  United States v. Michalec, No. ACM 39771 d. Plain View The plain view doctrine may “not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Arizona v. Hicks, 480 U.S. 321 , 328 (1987) (citing Coolidge v. New Hampshire, 403 U.S. 443 , 466 (1971)). Under Horton v. California, 496 U.S. 128 , 136–37 (1990), in order for the plain view exception to apply: (1) the officer must not violate the Fourth Amendment in arriving at the spot from which the incriminating materials can be plainly viewed; (2) the incriminating character of the materials must be immediately apparent; and (3) the officer must have lawful access to the object itself. 3. Analysis We find that the facts articulated in the military judge’s ruling on the mo- tion to suppress were not clearly erroneous, and we find that his conclusions of law are correct. Acting on information obtained from Appellant’s wife on 26 August 2016, AFOSI agents sought a verbal authorization from a military magistrate to seize Appellant’s phone. Additionally, the agents were granted authorization to search the entire phone for any media or communications on the phone re- lated to child pornography or sexual abuse of a child. We agree with the mili- tary judge that the military magistrate had a substantial basis for finding probable cause to grant the seizure and search of the phone. Even though the agents provided the magistrate with limited, yet specific, known facts, all of which came from Appellant’s wife, there was no evidence challenging the cred- ibility of the information. Where this issue turns is the actual search of the phone in September 2016, and whether it was reasonable for agents to search in the videos folder. We believe it was. When searching the folder, agents relied on the verbal authori- zation, which allowed them to look at all “media.” The military judge found the first written search authorization did not limit or otherwise curtail the author- ity verbally granted on 26 August 2016. Appellant tries to make the distinction between images and videos. We rec- ognize some would view videos as being different from images; even the Gov- ernment made this distinction in its second written search authorization. Whether there is a distinction or not, does not affect this court’s analysis of this issue; videos are a series of still images. We also do not find any issues with specificity. Had the military magistrate authorized a blanket search of the entire phone, given the limited number of facts presented, specificity would be a concern. Here, the search was limited to 19  United States v. Michalec, No. ACM 39771 media relating to the MeetMe application, and again, we agree with the mili- tary judge in that it was reasonable to search the videos folder, given the types of files that can be transmitted through that third-party application. Special Agent JR was searching in the videos folder pursuant to a properly scoped search authorization when he saw the masturbation video, and as such, we do not find the military judge’s conclusion that Special Agent JR found the video in “plain view while reasonably conducting a lawful search” was erroneous. 18 The military judge found that even if the video of Appellant masturbating was obtained as the result of an unlawful search, the search of Appellant’s phone was conducted pursuant to a properly issued search authorization by a military magistrate, the military magistrate had a substantial basis upon which to find probable cause, and the agents relied on good faith based on the verbal and written search authorizations in conducting their search of Appel- lant’s phone. The testimony by the agents shows that based on their training and experience, they believed they could search the entire phone for all media types, which would have included videos. Having found a proper application of Mil. R. Evid. 311(c)(3), we find that the military judge did not abuse his discre- tion in admitting the video at issue. 19 C. Ineffective Assistance of Counsel Claim 1. Additional Background Appellant asserts that trial defense counsel committed numerous pre-trial errors, which cumulatively deprived him of the effective assistance of counsel. 18 While we find the search authorization in this case lawful, it was not the model of clarity. The confusion over the exact terms and parameters of the military magistrate’s oral authorization highlights the danger of using an oral, rather than a written, au- thorization to search. The oral and written authorizations were somewhat incon- sistent: the oral search authorization mentions images, the first written search author- ization does not mention images, and the second written search authorization men- tions images and videos. 19 Even if this court found the military judge erred and the video was subject to being excluded, applying the Mil. R. Evid. 311(a)(3) balancing test, we agree with the mili- tary judge’s conclusion that “no appreciable deterrence of future unlawful searches and seizures would result from the exclusion” of the video. The agents could have been more specific and consistent in the verbal and first written search authorization about what media they could search. However, in this case exclusion of a sexually themed video found while searching for sexually themed “photographs” in a videos folder that could contain videos sent via MeetMe is a remedy unlikely to generate more specificity and consistency in future verbal and follow-up written authorizations. We agree with the military judge’s conclusion that “there is no valid policy reason for imposing” such a “drastic sanction.” We find agents did not act recklessly and exclusion of this evidence would not deter agents from conducting unlawful searches. 20  United States v. Michalec, No. ACM 39771 Specifically, Appellant argues his trial defense counsel failed to: (1) impeach false testimony provided by KT regarding her motive for moving to Alaska to live with her grandparents in 2017; (2) impeach KT with her prior falsehoods to law enforcement regarding that motive; (3) object to “irrelevant,” “specula- tive,” and “highly prejudicial” testimony regarding the supposed pregnancy test KT took in Pensacola, Florida; (4) move to sever Charge I for a violation of Article 120, UCMJ (specifically related to KT), from Charge II for a violation of Article 134, UCMJ (Appellant’s masturbation at work), which resulted in manifest injustice; (5) disagree with the military judge that Appellant at- tempted to engage in lewd communication with a minor; and (6) take ad- vantage of the military judge’s offer to provide the Defense with extra time to make a new argument under Mil. R. Evid. 414, which presented a “radical change in the evidentiary landscape” of the trial. With respect to assertions (5) and (6), these matters occurred during motion hearings. Trial defense counsel cross-examined KT at length at trial. His questioning challenged KT’s ability to accurately perceive things that happened to her; ad- dressed her “vivid dreams;” brought forth an inconsistency about whether she had been raped once or twice; and challenged her various disclosures, or lack thereof, of information to AFOSI that related to Appellant digitally penetrating her, undergoing a pregnancy test, and why she did not tell her mother about what she alleged happened to her. However, KT told the court there was no doubt that Appellant touched her breasts, genitals, buttocks, groin and inner thigh; that he digitally penetrated her vagina; and that he raped her more than once when she was ten years old. KT also stated that at the time of trial, it had been three or four years since she had seen Appellant, and the last time she saw Appellant was when he picked up RM while they were in Jacksonville, Florida. She did not talk to Appellant at this time. During deliberations, the panel president had two questions for KT. Those questions were aimed at (1) whether she was aware of an investigation or al- legations against Appellant, and (2) a description of the events that led her to disclose her allegations to investigators. In a closed court session, KT was re- called to testify, and based on her responses, the military judge allowed her to answer those questions. KT told the members that she was not aware of the investigation, and that she experienced a “traumatic incident,” which is why she ended up moving to Alaska to live with her grandparents in 2017. 20 Soon after, she found a therapist that she felt comfortable talking to about Appel- lant’s conduct. The panel president told the military judge they were “strug- gling” with the “traumatic experience.” The military judge advised the panel president that the Military Rules of Evidence precluded that evidence from 20 Details of the “traumatic event” were raised before the military judge in motions. 21  United States v. Michalec, No. ACM 39771 being presented, and that the “traumatic event was not related to the events in this case.” In response to Appellant’s claims of ineffective assistance of counsel, we ordered and received declarations from Appellant’s trial defense counsel, Major (Maj) NA and Maj RM, which refute each of Appellant’s claims. 21 2. Law We review allegations of ineffective assistance of counsel de novo. United States v. Gooch, 69 M.J. 353 , 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470 , 474 (C.A.A.F. 2009)). In order for an appellant to prevail on a claim of ineffective assistance of counsel, he must demonstrate that coun- sel’s performance was deficient and that the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668 , 687 (1984). We employ a presumption of competence, and apply a three-part test in assessing whether that presumption has been overcome: (1) “Is there a reason- able explanation for counsel’s actions?;” (2) “Did defense counsel’s level of ad- vocacy ‘fall measurably below the performance . . . [ordinarily expected] of fal- lible lawyers’?;” and (3) “[I]f defense counsel was ineffective, is there ‘a reason- able probability that, absent the errors,’ there would have been a different re- sult?” Gooch, 69 M.J. at 362 (omission and alteration in original) (quoting United States v. Polk, 32 M.J. 150 , 153 (C.M.A. 1991)). “Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.” United States v. Datavs, 71 M.J. 420 , 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at 362–63) (additional citation omitted). In reviewing the decisions and actions of trial defense counsel, this court does not second- guess strategic or tactical decisions. See United States v. Morgan, 37 M.J. 407 , 410 (C.M.A. 1993) (citations omitted). It is only in those limited circumstances where a purported “strategic” or “deliberate” decision is unreasonable or based on inadequate investigation that it can provide the foundation for a finding of ineffective assistance. See United States v. Davis, 60 M.J. 469 , 474 (C.A.A.F. 2005). Under Rule for Courts-Martial (R.C.M.) 906(b)(10), a severance of offenses may be requested by appropriate motion, but “only to prevent a manifest in- justice.” To determine whether severance is required to prevent manifest in- 21 Since the issue was raised in the record but was not fully resolvable by those mate- rials, the affidavits submitted by the Government and Appellant were considered con- sistent with United States v. Jessie, 79 M.J. 437 , 444 (C.A.A.F. 2020). 22  United States v. Michalec, No. ACM 39771 justice, the court considers whether the findings reflect an impermissible spill- over of prejudice from one charge to the other; whether the evidence of one offense would be admissible proof of the other; and whether the military judge provided a proper limiting instruction. United States v. Curtis, 44 M.J. 106 , 128 (C.A.A.F. 1996). The military justice system encourages the joinder of all known offenses at one trial, and permits a motion for “severance of offenses by the military judge, ‘but only to prevent manifest injustice.’” United States v. Southworth, 50 M.J. 74 , 76 (C.A.A.F. 1999) (quoting R.C.M. 906(b)(10)). “In general, ‘an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal.’” United States v. Duncan, 53 M.J. 494 , 497–98 (2000) (quoting United States v. Alexan- der, 135 F.3d 470 , 477 (7th Cir. 1998)). 3. Analysis We disagree with Appellant’s claim that trial defense counsel were ineffec- tive. Appellant’s counsel articulated a sound strategy regarding their impeach- ment of KT about her “traumatic incident,” as they were concerned about open- ing doors that could damage Appellant’s case. Maj NA asserted that while KT’s statements about the incident contained some inconsistencies, the evidence surrounding that event suggested “something significant, did, in fact, happen to her.” Furthermore, Maj NA stated that, based on pretrial interviews, there was evidence to corroborate that the “traumatic” event led KT to move to Alaska. Trial defense counsel strategically chose to not cross examine KT about this issue because they did not want to open the door to the Prosecution intro- ducing further evidence of the incident, which would garner sympathy with the members. Furthermore, trial defense counsel was concerned that if the door was opened for the Prosecution to introduce evidence about the incident, cou- pled with evidence of KT’s inconsistencies when recounting that event, the members would be more willing to overlook KT’s inconsistencies when recount- ing the events of the instant case, thus weakening a key aspect of the defense strategy. As for the allegation that trial defense counsel failed to impeach KT with her prior falsehoods to law enforcement about the “traumatic incident,” Maj NA again asserted that this was a strategic decision. Maj NA noted that there was, in fact, physical evidence of the incident, and that introducing this evi- dence would “cut against the defense’s theory more than it helped.” Maj NA further stated after he discussed this issue with their appointed forensic psy- chologist, trial defense counsel made a tactical decision to avoid this line of questioning to prevent opening the door to “testimony that discussed how ther- apy for a recent trauma could, in some circumstances, lead to discussions about 23  United States v. Michalec, No. ACM 39771 past trauma.” We do not find that trial defense counsel were ineffective in their efforts to impeach KT. Appellant argues KT’s testimony regarding her pregnancy test was entirely speculative and highly prejudicial, and that trial defense counsel’s cross-exam- ination on this issue was ineffective. We disagree. KT testified she felt she needed to take a pregnancy test after Appellant raped her. Either the testi- mony is true or false, but it is not speculative. Further, trial defense counsel confronted KT on this issue, highlighted her inconsistencies, and asked ques- tions about her failure to disclose anything about the test to AFOSI agents. Further, because AP’s testimony contradicted KT’s testimony regarding the circumstances surrounding the pregnancy test, Maj NA declared that during closing argument he “emphasized [an] alternate theory about the pregnancy test and the other inconsistencies related to the testimony.” Whether the tes- timony of KT and AP was credible was an issue for the members to decide. Based on review of the record we do not find trial defense counsel was ineffec- tive on this issue. Appellant argues that trial defense counsel should have moved to sever Charge II from Charge I, and having to defend against both Charge I and Charge II at the same trial led to a manifest injustice. Appellant argues that the only reason Charge II was joined with Charge I “was for its prejudicial effect,” and that Charge II contained “patently bad character evidence.” How- ever, Appellant only speculates how this resulted in an unfair trial. Given that Appellant’s phone was a key piece of evidence for both charges, and that the nature of both charges was sex-related, for simple purposes of judicial economy it is unlikely a motion for severance would have been granted. Trial defense counsel declared that instead of moving to sever the charges, and given the law on this issue, they chose to focus on their evidentiary motions. The military judge also properly provided members with a spillover instruction. We find trial defense counsel’s explanation for why they did not seek to sever Charge II from Charge I was reasonable, and we find Appellant suffered no manifest injustice. Appellant also argues that the evidence Appellant actually attempted to engage in lewd communications was ambiguous, but trial defense counsel con- ceded that Appellant believed he was communicating with a 15-year-old child. He further argued this allowed the military judge to make an “uncontested finding” regarding whether Appellant committed a prior act of child molesta- tion. To the contrary, the record shows the Defense repeatedly argued to ex- clude this evidence under Mil. R. Evid. 414. Maj NA also stated the Defense did not concede that Appellant had attempted to engage in lewd communica- tions with a minor, but “continued to assert that, due to the speculative nature of the prosecution’s evidence, the court could not properly find that an ‘other 24  United States v. Michalec, No. ACM 39771 offense’ of child molestation under Mil. R. Evid. 414 had been committed.” Maj RM stated “the defense continuously raised the argument with the military judge about the highly speculative nature of this evidence” given that it was never known with whom Appellant had been conversing. Nonetheless, the rec- ord shows trial defense counsel did acknowledge there was probable cause to search Appellant’s phone as a result of Appellant’s confession to his wife. How- ever, the record also shows trial defense counsel provided strong arguments as to the speculative nature of the resulting evidence, particularly regarding the identities of “Sam” and her “father,” even in light of the fact that Appellant admitted to his wife that he had been communicating with a 15-year-old girl, and the evidence associated with his communication. While we do not find that trial defense counsel were ineffective on this issue, even if they had been inef- fective, we do not believe there is a reasonable probability there would have been a different result on this issue. Finally, Appellant contends his trial counsel did not take advantage of the military judge’s offer to provide the Defense with extra time to make a new argument under Mil. R. Evid. 414, which presented a “radical change in the evidentiary landscape” of the trial, and this extra time “may have brought a different result” to the trial. We find no merit to this assertion. Initially, the Government intended to offer the evidence related to “Sam” under Mil. R. Evid. 404(b). However, after arraignment, trial counsel informed the military judge that they were seeking admission of the evidence under Mil. R. Evid. 414, as an offense of child molestation under Article 120, UCMJ. Trial defense counsel, being familiar with the offenses at issue and the evidence in the case, deemed an extended recess was not necessary, and that they were fully able to address the Government’s new argument without additional delay. Appellant has failed to demonstrate a delay would have or could have resulted in a different result. Trial defense counsel could have chosen a different strategy on each of these issues; however, the record shows their trial strategy on each point in this case was not unreasonable, especially given their valid concerns about opening doors that could have negatively impacted Appellant’s case, the cur- rent state of the law, and the military judge’s ruling on their motions. Their preparation, motions filings, cross-examination, and strategy brought relevant information to the attention of the panel, and actually led to some allegations being withdrawn. 22 We evaluate trial defense counsel’s performance not by the 22 A specification charged under Article 120, UCMJ, and two specifications under Ar- ticle 134, UCMJ, were also withdrawn and dismissed after arraignment. 25  United States v. Michalec, No. ACM 39771 success of their strategy, “but rather whether counsel made . . . objectively rea- sonable choice[s] in strategy from the alternatives available at the [trial].” Dewrell, 55 M.J. at 136 (quoting United States v. Hughes, 48 M.J. 700 , 718 (A.F. Ct. Crim. App. 1998), aff’d, 52 M.J. 278 (C.A.A.F. 2000)). Under these circumstances, Appellant fails to overcome the strong presumption that coun- sel’s performance was within the wide range of reasonable professional assis- tance. D. Legal and Factual Sufficiency as to Charge I and its Specifications 1. Law A Court of Criminal Appeals may affirm only such findings of guilty “as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866 (c). “Article 66(c) re- quires the Courts of Criminal Appeals to conduct a de novo review of legal and factual sufficiency of the case.” United States v. Washington, 57 M.J. 394 , 399 (C.A.A.F. 2002) (emphasis and citation omitted). “The test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Robinson, 77 M.J. 294 , 297–98 (C.A.A.F. 2018) (quoting United States v. Rosario, 76 M.J. 114 , 117 (C.A.A.F. 2017)). “The term reasonable doubt, how- ever, does not mean that the evidence must be free from conflict.” United States v. Wheeler, 76 M.J. 564 , 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Lips, 22 M.J. 679 , 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). “[I]n resolving questions of legal sufficiency, we are bound to draw every rea- sonable inference from the evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131 , 134 (C.A.A.F. 2001) (citations omitted). As a result, “[t]he standard for legal sufficiency involves a very low threshold to sustain a conviction.” United States v. King, 78 M.J. 218 , 221 (C.A.A.F. 2019) (alteration in original) (citation omitted), cert. denied, __ U.S. __, 139 S. Ct. 1641 (2019). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” this court is “convinced of the [appellant]’s guilt beyond a rea- sonable doubt.” United States v. Reed, 54 M.J. 37 , 41 (C.A.A.F. 2000) (quoting United States v. Turner, 25 M.J. 324 , 325 (C.M.A. 1987)). “In conducting this unique appellate role, we take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption of innocence nor a presumption of guilt’ to ‘make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568 26  United States v. Michalec, No. ACM 39771 (alteration in original) (quoting Washington, 57 M.J. at 399). This court’s re- view of the factual sufficiency of evidence for findings is limited to the evidence admitted at trial. Article 66(c), UCMJ; United States v. Beatty, 64 M.J. 456 , 458 (C.A.A.F. 2007) (citations omitted). For his offenses against KT, Appellant was convicted of one specification of aggravated sexual contact with a child, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM), App. 28, ¶ 45.a.(g) at A28-2, and two specifications of the rape of a child under 12 years of age, in violation of Article 120, UCMJ (2016 MCM), App. 28, ¶ 45.a.(b) at A28-1. For the aggravated sexual contact specification, 23 this re- quired the Prosecution to prove two elements beyond a reasonable doubt: (1) that Appellant engaged in sexual contact with KT; and (2) that at the time of the sexual contact, KT had not attained the age of twelve years. See 2016 MCM, App. 28, ¶ 45.b.(7)(a) at A28-7. Sexual contact is defined as the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either di- rectly or through the clothing, the genitalia, anus, groin, breast, in- ner thigh, or buttocks of any person, with an intent to abuse, humil- iate, or degrade any person or to arouse or gratify the sexual desire of any person. 2016 MCM, App. 28, ¶ 45.a.(t)(2) at A28-3. For the rape of a child under 12 years of age, this required the Prosecution to prove two elements beyond a reasonable doubt: (1) that Appellant engaged in a sexual act with a child; and (2) that at the time of the sexual act, KT had not attained the age of twelve years. 24 See 2016 MCM, App. 28, ¶ 45.b.(2)(a) at A28-5. The term “sexual act” means (A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or 23 Specification 1 of Charge I alleged Appellant committed aggravated sexual contact of KT by touching her breasts, inner thighs, buttocks, genitalia, and groin with his hands. 24Specification 3 of Charge I alleged Appellant raped KT by penetrating her genital opening with his finger; Specification 4 of the same charge alleged Appellant raped KT by penetrating her vulva with his penis on divers occasions. 27  United States v. Michalec, No. ACM 39771 (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humil- iate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. 2016 MCM, App. 28, ¶ 45.a.(t)(1)(A), (B) at A28-3. 25 2. Analysis Appellant’s primary argument against factual sufficiency is that there was no physical evidence to support the findings. In fact, there was no physical evidence, no other witnesses to Appellant’s crimes, and little to corroborate KT’s testimony about the details of the offenses. As such, the strength of the Government’s proof rested on KT’s credibility and demeanor at trial. As the Supreme Court noted in Weiler v. United States: In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures upon which to rely. The touchstone is always credibility; the ultimate measure of testi- monial worth is quality and not quantity. Triers of fact in our fact-finding tribunals are, with rare exceptions, free in the exer- cise of their honest judgment, to prefer the testimony of a single witness to that of many. 323 U.S. 606 , 608 (1945). This court will not speculate as to what facts in KT’s testimony led to the panel’s determination of Appellant’s guilt; however, in as- sessing legal sufficiency, we are limited to the evidence produced at trial and are required to consider it in the light most favorable to the Government. KT testified that Appellant penetrated her vagina with his penis on two occasions and with his finger, and also touched her breasts, inner thighs, buttocks, gen- italia, and groin with his hand. We conclude a rational factfinder could have found beyond a reasonable doubt all the elements to support Appellant’s con- victions of sexual assault against KT. Furthermore, in assessing factual suffi- ciency, after weighing all the evidence in the record of trial and having made allowances for not having personally observed the witnesses, we are convinced 25Although there was no evidence contradicting that KT was under the age of 12 when the offenses occurred, in a prosecution for violation of 10 U.S.C. § 920 (b) or 10 U.S.C. § 920 (g), it need not be proven that an appellant knew that the other person engaging in the sexual act, contact, or liberty had not attained the age of 12 years, nor is it an affirmative defense that an appellant reasonably believe the other person had attained the age of 12 years. See 2016 MCM, App. 28, at A28–2. 28  United States v. Michalec, No. ACM 39771 of Appellant’s guilt beyond a reasonable doubt. Therefore, we find Appellant’s convictions of sexual assault against KT both legally and factually sufficient. III. CONCLUSION The findings and the sentence are correct in law and fact, and no error ma- terially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859 (a), 866(c). 26 Accordingly, the findings and sentence are AFFIRMED. FOR THE COURT CAROL K. JOYCE Clerk of the Court 26 When the president announced sentence, he stated Appellant was “to forfeit all pay and allowances.” However, “total forfeitures” appears on the court-martial order. We order promulgation of a new CMO. 29

2021-01-26 23:00:39.662068+00

http://afcca.law.af.mil/content/afcca_opinions/cp/jackman_-_39685_f_rev.u.pdf

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39685 (f rev) ________________________ UNITED STATES Appellee v. James D. JACKMAN Airman First Class (E-3), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Upon Further Review Decided 26 January 2021 ________________________ Military Judge: Shelly W. Schools (trial); Andrew R. Norton (record of trial correction). Sentence: Sentence adjudged on 19 March 2019 by GCM convened at Nellis Air Force Base, Nevada. Sentence entered by military judge on 8 April 2019: Bad-conduct discharge, confinement for 9 months, forfei- ture of all pay and allowances, and reduction to E-1. For Appellant: Major Mark J. Schwartz, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Brian C. Mason, USAF. Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges. Senior Judge LEWIS delivered the opinion of the court, in which Judge D. JOHNSON joined. Senior Judge MINK filed a separate opinion con- curring in part, and dissenting in part and in the result. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ LEWIS, Senior Judge:  United States v. Jackman, No. ACM 39685 (f rev) Appellant’s case is before this court for the second time. In United States v. Jackman, No. ACM 39685, 2020 CCA LEXIS 273 , at *3, 14–15 (A.F. Ct. Crim. App. 21 Aug. 2020) (unpub. op.), we found the record of trial defective under Rule for Court-Martial (R.C.M.) 1112(d)(2) 1 and returned it to the Chief Trial Judge, Air Force Trial Judiciary for correction. Subsequently, the detailed court reporter corrected the defect by removing audio recording files that were not sessions of the court. A detailed military judge gave the parties notice of the proposed correction and an opportunity to examine and respond to the no- tice. No party requested access to the recordings and no objections were made to the proposed correction. On 27 August 2020, the military judge signed the certificate of correction in accordance with R.C.M. 1112(d)(2). On 2 September 2020, the record of trial was returned to our court for com- pletion of appellate review. Appellant has not raised any issues for our consid- eration upon further review. We find the defect in the record of trial has been properly corrected and we may complete appellate review. This leads us to address one new issue, whether the convening authority failed to take action on the entire sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889 , 9890 ( 8 Mar. 2018 ), and Article 60, UCMJ, 10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.) (2016 MCM)). 2 While our panel is split on the approach to this issue and its outcome, the majority finds no material prejudice to the substantial rights of Appellant and therefore affirms the findings and sentence in the entry of judgment (EoJ). I. BACKGROUND In our earlier review of this case, we provided the following overview of its post-trial processing: A general court-martial composed of a military judge sitting alone sentenced Appellant to a bad-conduct discharge, confine- ment for ten months, forfeiture of all pay and allowances, and reduction to the grade of E-1. In undated clemency letters, Ap- pellant and his defense counsel requested the convening author- ity “disapprove two-thirds of the adjudged total forfeitures.” The convening authority’s decision memorandum on action did not 1 Unless otherwise specified, all references to the Uniform Code of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Mar- tial, United States (2019 ed.). 2 We did not order the Government to show cause as to why this case should not be remanded. We are familiar with the recent responses submitted by the Government on this issue in prior and pending cases. This decision was made for judicial economy. 2  United States v. Jackman, No. ACM 39685 (f rev) state that he reviewed Appellant’s clemency request. In taking action on the sentence, the convening authority reduced the con- finement from ten to nine months to comply with the [pretrial agreement (PTA)] but he did not disapprove any of the forfei- tures. The military judge signed the [EoJ] the same day the con- vening authority took action on the sentence. The parties did not file any post-trial motions with the military judge. On 17 April 2019, the court reporter certified the record of trial and on 3 May 2019, the record of trial was docketed with our court. Jackman, unpub. op. at *2. We also noted the following regarding appellate processing of Appellant’s case: Appellant submitted his case to us without a specific assignment of error. Appellant’s counsel noted in his merits brief that he “identified a potential post-trial error, but . . . concluded that any such error would be non-prejudicial to Appellant.” We are un- sure of the nature of the error that appellate defense counsel identified, as he chose not to disclose the error to us. Id., at *2–3. In our first review, we identified three post-trial processing issues—one of which was the defective record of trial that was remedied by our remand. 3 However, we did not address whether the convening authority’s decision mem- orandum was erroneous because it did not state the convening authority ap- proved each sentence component found in the EoJ. In light of recent un- published opinions by our court—two of which are cited below—we directly address this issue. The two judges who make up the majority here recently addressed this same issue in United States v. Way, No. ACM 39723, 2020 CCA LEXIS 473 , at *16 (A.F. Ct. Crim. App. 23 Dec. 2020) (unpub. op.). In that 2–1 decision, we 3 The other two issues were: (1) whether the signed Statement of Trial Results (STR) and EoJ must be modified where the pleas and findings to both Charge I and II are omitted; and (2) whether prejudicial error exists when there is no documentation in the record of trial that the convening authority considered Appellant’s clemency mat- ters. Jackman, unpub. op. at *3. On the first issue, we found the errors were “obvious” but that remand under Article 66(f)(3), UCMJ, was unwarranted as the pleas and find- ings for the specifications under Charges I and II were accurately shown in the STR and EoJ. Id. at *10–12. On the second issue, we found no prejudice existed even if we assumed the error was plain or obvious. Id. at *12–14. 3  United States v. Jackman, No. ACM 39685 (f rev) assumed without deciding that it was a plain or obvious error when the con- vening authority did not approve the entire sentence in the EoJ but we af- firmed the findings and sentence after testing for prejudice and finding none. Unpub. op. at *16–18. We again follow the approach from Way. 4 Applying our approach, we discern no prejudice to Appellant. Our esteemed colleague who concurs in part and dissents in part and in the result would find error and remand because the action is not “clear and unam- biguous.” See United States v. Politte, 63 M.J. 24 , 26 (C.A.A.F. 2006). We are familiar with this approach as it is the same one taken by the separate opinion in Way by a different esteemed colleague. Unpub. op. at *19–20 (Cadotte, J., concurring in part, dissenting in part and in the result); see also e.g., United States v. Lopez, No. ACM S32597, 2020 CCA LEXIS 439 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.). However, we still see the best approach is to first consider whether Appellant waived or forfeited the issue, and if forfeited, de- termine whether Appellant prevails under a plain error standard of review. Appellant has never claimed error in the convening authority’s decision memorandum. His initial merits brief—filed before our first review of his case—noted unnamed post-trial processing errors but disclaimed prejudice. Since his case was re-docketed with our court, more than four months have passed and Appellant has not filed or requested to file a supplemental brief alleging error or prejudice. Still, we can see that the convening authority’s de- cision on action memorandum did not use the word “approve” regarding any portion of the sentence in the EoJ and so we will examine this matter further. II. LAW AND ANALYSIS Proper completion of post-trial processing is a question of law this court reviews de novo. United States v. Sheffield, 60 M.J. 591 , 593 (A.F. Ct. Crim. App. 2004) (citation omitted). Interpretation of a statute and a R.C.M. provi- sion are also questions of law that we review de novo. United States v. Hunter, 65 M.J. 399 , 401 (C.A.A.F. 2008) (citation omitted); United States v. Martinelli, 62 M.J. 52 , 56 (C.A.A.F. 2005) (citation omitted). Executive Order 13,825, § 6(b), requires that the version of Article 60, UCMJ, “in effect on the date of 4We also tested for prejudice in prior cases with a related though different issue when the convening authority’s decision memorandum either stated no action was taken on the sentence, or in the case. See, e.g., United States v. Cruspero, No. ACM S32595, 2020 CCA LEXIS 427 , at *12–15 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.); United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416 , at *29–37 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (Lewis, S.J., concurring in part and in the result); United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246 , at *13–16 (A.F. Ct. Crim. App. 27 Jul. 2020) (unpub. op.). 4  United States v. Jackman, No. ACM 39685 (f rev) the earliest offense of which the accused was found guilty, shall apply to the convening authority . . . to the extent that Article 60: (1) requires action by the convening authority on the sentence.” See 2018 Amendments to the Manual for Courts-Martial, United States, 83 Fed. Reg. 9889 , 9890 ( 8 Mar. 2018 ). The version of Article 60, UCMJ, in effect on the date of the earliest charged offense in this case, 1 May 2017, stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority.” 10 U.S.C. § 860 (c)(2)(A) (2016 MCM). Our approach requires a determination of whether Appellant waived or for- feited the issue by not filing a post-trial motion within five days after receipt of the convening authority’s decision memorandum to allege the action was incomplete, irregular, or contained error. See R.C.M. 1104(b)(2)(B). In our view, Appellant’s opportunity to challenge the decision memorandum before the mil- itary judge and his failure to file such a motion warrants appropriate consid- eration. Such consideration distinguishes the review of cases with an EoJ— like Appellant’s—from those cases referred to trial prior to 1 January 2019 with a traditional action. In cases with a traditional action, the military judge retained “control over a court-martial until the record [was] authenticated and forwarded to the convening authority for review.” United States v. Neal, 68 M.J. 289 , 296 (C.A.A.F. 2010) (citation omitted); see also R.C.M. 1104 (2016 MCM). Here, the Defense had the opportunity to claim error in the action be- fore the military judge for up to five days after receipt of the convening author- ity’s decision memorandum. See R.C.M. 1104(b)(2)(B). Appellant received written advice of his opportunity to claim error in the convening authority’s decision memorandum before the military judge. The written post-trial appellate rights advisement that Appellant and his trial de- fense counsel signed is an appellate exhibit in the record of trial. The post-trial rights advisement stated, “[P]ost-trial court proceedings are to inquire into and resolve anything that comes up after trial that substantially affects any offense of which you were convicted or the sentence, submitting a request may help highlight and/or preserve issues for appeal.” We wholeheartedly agree. Con- cerns with a convening authority’s decision memorandum should be addressed with the trial court before the EoJ is signed, long before an Article 66 review by a Court of Criminal Appeals. Failure to raise a claim of error should matter to the standard of review on appeal. Therefore, as we found in United States v. Cruspero, No. ACM S32595, 2020 CCA LEXIS 427 , at *13–14 (A.F. Ct. Crim. App. 24 Nov. 2020) (unpub. op.), and adopting the same reasoning, we find Appellant’s failure to file a post-trial motion forfeited his right to object to the accuracy of the convening authority’s decision on action memorandum, absent plain error. We followed an identical path in Way. See unpub. op. at *17–18. 5  United States v. Jackman, No. ACM 39685 (f rev) To prevail under a plain error analysis, Appellant must show “(1) there was an error; (2) [the error] was plain or obvious; and (3) the error materially prej- udiced a substantial right.” See United States v. LeBlanc, 74 M.J. 650 , 660 (A.F. Ct. Crim. App. 2015) (en banc) (quoting United States v. Scalo, 60 M.J. 435 , 436 (C.A.A.F. 2005)). We have applied the threshold of “some colorable showing of possible prejudice” as the appropriate standard for an error impacting an appellant’s request for clemency in cases like Appellant’s. See, e.g., Cruspero, unpub. op. at *14–15 (quoting LeBlanc, 74 M.J. at 660). Applying plain error, even if we assume without deciding that there was plain or obvious error in the convening authority’s decision memorandum, we can discern no colorable showing of possible prejudice to Appellant given the clemency submission. Appellant’s only request in clemency was for the conven- ing authority to “disapprove two-thirds of the adjudged total forfeitures.” We will not speculate why Appellant made this request but even if the convening authority granted Appellant exactly what he asked for, Appellant would still automatically forfeit all of his pay and allowances for “any period of confine- ment or parole” under Article 58b, UCMJ, 10 U.S.C. § 858b, given the adjudged bad-conduct discharge and nine months of confinement. 5 Appellant’s auto- matic forfeitures took effect the same day as his adjudged forfeitures: 14 days after announcement of sentence under Article 57(a)(1)(A), UCMJ, 10 U.S.C. § 857 (a)(1)(A); R.C.M. 1102(b)(1)(A). Appellant did not request the convening authority defer the automatic forfeitures under Article 57(b)(1). See also R.C.M. 1103(b). Finally, because Appellant had no dependents—at least ac- cording to the personal data sheet admitted at trial—he was not eligible to have the automatic forfeitures waived and directed to be paid to a dependent for a period not to exceed six months under Article 58b(b), UCMJ, 10 U.S.C. § 858b. From our review of the record of trial and the applicable law, we conclude that even if the convening authority granted Appellant’s clemency request in full it would have not resulted in financial relief to Appellant while he was in confinement. 6 5 Pursuant to Article 60(c)(4)(A), UCMJ, we do not believe the convening authority could disapprove the bad-conduct discharge or further reduce the confinement below nine months as the exceptions listed in Article 60(c)(4)(B) or (C) could not be utilized to further reduce the sentence. See 10 U.S.C. § 860 (c)(4)(A), (B), (C) (2016 MCM). 6According to the record of trial, after accounting for the reduced confinement term per the PTA, Appellant’s minimum release date from confinement was on 3 November 2019 and his maximum release date was on 18 December 2019. 6  United States v. Jackman, No. ACM 39685 (f rev) This leaves us with considering whether there is evidence in the record that Appellant would have been denied financial relief after release from confine- ment if the convening authority had granted his entire clemency request. The record provides us little on this matter. We only know that the convening au- thority’s decision on action memorandum, dated 8 April 2019, required Appel- lant to be placed on appellate leave under Article 76a, UCMJ, 10 U.S.C. § 876 , unless superior competent authority directed otherwise. In contrast, the record does not contain the paperwork used to place Appellant on appellate leave or show whether he had any accrued leave. 7 Similarly, the record contains no de- finitive information on when Appellant completed his term of confinement, whether he was paroled, or how his adjudged forfeitures of all pay and allow- ances were applied, if at all, after his confinement ended. 8 Under these circum- stances, we find no colorable showing of possible prejudice from the assumed error in the convening authority’s decision on action memorandum. Finally, there is no question that the convening authority took some action on the sentence in this case as he reduced Appellant’s confinement term from ten months to nine. This reduction in confinement was pursuant to the PTA’s terms. The PTA contained no limitation on the amount or type of forfeitures so we have no question that Appellant received the full benefit of his PTA with the convening authority. III. CONCLUSION The findings and sentence entered are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859 (a), 866(d). Accordingly, the findings and sentence are AFFIRMED. MINK, Senior Judge (concurring in part, and dissenting in part and in the re- sult): 7 If Appellant had accrued leave he would have been permitted to choose to either (1) receive pay and allowances during the period of accrued leave, then continue on unpaid required excess leave; or (2) receive a lump sum payment of his base pay for the accrued leave, as of the day before the required excess leave begins, and serve the entire period of required leave on unpaid excess leave. See Air Force Instruction 51–201, Admin- istration of Military Justice, Figure A9.14 (18 Jan. 2019, as amended by AFGM 2019- 02, 30 Oct. 2019). 8R.C.M. 1102(b)(1)(B) prohibits the execution of forfeitures beyond “two-thirds forfei- ture of pay” if Appellant was “not confined” and was “performing military duties.” Ap- pellant has not claimed he forfeited his allowances or more than two-thirds of his pay after his release from confinement. 7  United States v. Jackman, No. ACM 39685 (f rev) I agree with the conclusion of the court that the defect in the record of trial has been properly corrected. However, I would remand this case to the Chief Trial Judge, Air Force Trial Judiciary, to resolve a substantial issue with the decision memorandum as the convening authority’s decision on action taken on Appellant’s adjudged sentence was ambiguous and incomplete. I adopt the reasoning of the majority in United States v. Lopez, No. ACM S32597, 2020 CCA LEXIS 439 (A.F. Ct. Crim. App. 8 Dec. 2020) (unpub. op.), and find the convening authority here, as in Lopez, “was required to explicitly state his ap- proval or disapproval of the sentence.” Id. at *11. The convening authority failed to do so, thus I conclude the convening authority failed to take action on the entire sentence in accordance with Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889 , 9890 ( 8 Mar. 2018 ), and Article 60, Uniform Code of Military Jus- tice, 10 U.S.C. § 860 (Manual for Courts-Martial, United States (2016 ed.)). I continue to hold the view expressed in the dissenting opinion in United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416 , at *92–105 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (J. Johnson, C.J., dissenting in part and in the result), and, therefore, I do not agree with the majority’s approach in conducting a plain error analysis. The convening authority’s action must be “clear and unambiguous,” and in this case it is not. See United States v. Politte, 63 M.J. 24 , 26 (C.A.A.F. 2006) (citing United States v. Loft, 10 M.J. 262 , 268 (C.M.A. 1981)). I further disagree with my esteemed colleagues’ deci- sion to test for material prejudice. Accordingly, I would find error and remand regardless of whether Appellant was materially prejudiced. FOR THE COURT CAROL K. JOYCE Clerk of the Court 8

2021-01-26 23:03:15.320211+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2021/4thDistrict/4180819.pdf

2021 IL App (4th) 180819 FILED January 26, 2021 NO. 4-18-0819 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County SHARRIEFF ROWELL, ) No. 17CF51 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding. JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Turner concurred in the judgment and opinion. OPINION ¶1 In February 2017, the State charged defendant, Sharrieff Rowell, with one count each of identity theft (720 ILCS 5/16-30(a)(3) (West 2016)), possession of incomplete card (id. § 17-42), and altered or counterfeited card (id. § 17-41(a)). The charges generally alleged that defendant possessed blank and altered debit cards and another person’s social security number with the intent to use it to commit a felony. ¶2 In August 2018, the trial court conducted defendant’s bench trial, at which Illinois State Police Trooper Timothy Price testified that he stopped defendant for driving 115 miles per hour in a 70-mile-per-hour zone on Interstate 55. Price placed defendant under arrest for speeding. Because Price smelled cannabis in defendant’s vehicle, he and two other officers searched it. Their search included two bags in the vehicle’s passenger compartment and its trunk. As a result of that search, the officers discovered multiple pieces of physical evidence that were used to charge defendant with the previously described crimes. The officers found no cannabis or other drugs. ¶3 The trial court found defendant guilty of all counts and later sentenced him to prison for concurrent terms of 2½ years, 2½ years, and 2 years. ¶4 Defendant appeals, arguing only that his trial attorney provided ineffective assistance of counsel because he failed to move to suppress the evidence obtained from defendant’s vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the alternative, (2) even if the officers had justification to investigate the smell, they did not have justification to search the trunk and bags. We disagree and affirm the trial court. ¶5 I. BACKGROUND ¶6 Because the only matter at issue is whether defendant’s counsel should have filed a motion to suppress evidence, we will discuss only the information relevant to that issue. ¶7 A. The Charges ¶8 In February 2017, the State charged defendant with one count each of identity theft (id. § 16-30(a)(3)), possession of incomplete card (id. § 17-42), and altered or counterfeited card (id. § 17-41(a)). The charges generally alleged that defendant possessed blank and altered debit cards and another person’s social security number with the intent to use it to commit a felony. ¶9 B. The Trial ¶ 10 In August 2018, the trial court conducted defendant’s bench trial. Price testified that in February 2017, he stopped defendant for driving 115 miles per hour in a 70-mile-per-hour zone on Interstate 55. The court granted the State’s motion to admit into evidence a video recording from the dashboard camera of Price’s squad car that showed the stop. ¶ 11 The video showed that shortly after stopping the vehicle, Price placed defendant under arrest for speeding and Price told defendant that Price “smelled weed.” Price also said he -2- believed that “gives us probable cause to search.” Two other officers arrived and searched defendant’s vehicle, including the trunk and “a green bag which contained a Crown Royal bag inside of it as well as a black bag.” The “green bag was located in the front seat area. *** [T]he black bag was located in the rear, behind the driver’s side.” From that search, the officers discovered (1) a credit card with defendant’s name and a billing statement for that card and (2) inside the black bag, unaltered debit cards, blank cards, a template for making engravings on cards, and handwritten notes of names and social security numbers. The officers also found inside the trunk a Western Union debit card and two credit cards bearing defendant’s name. The officers did not find any cannabis or other drugs. ¶ 12 In summary, Illinois State Police Special Agent Daniel Rossiter testified that the Western Union debit card was altered and some of the other cards did not contain a balance. The parties stipulated that (1) one of the social security numbers that the officers discovered in the vehicle belonged to a man who was not defendant and (2) an address for one of the cards belonged to a man who did not apply for the card. ¶ 13 Defendant testified in his own defense and explained that he owns businesses and a friend, who had since died, gave him the cards to help pay for business expenses. Defendant explained that all of contents of the bags belonged to that friend. ¶ 14 The trial court found defendant guilty of all counts and later sentenced him as earlier stated. ¶ 15 This appeal followed. ¶ 16 II. ANALYSIS ¶ 17 Defendant appeals, arguing only that his trial attorney provided ineffective assistance of counsel because he failed to move to suppress the evidence obtained from defendant’s -3- vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the alternative, (2) even if the officers had justification to investigate the smell, they did not have justification to search the trunk and bags. We affirm the trial court. ¶ 18 We disagree with defendant’s arguments because (1) the law at the time of the search clearly allowed the police to search based upon the odor of cannabis alone and (2) the trial court record provides no basis to conclude that counsel was ineffective for not filing a motion to suppress. ¶ 19 A. General Legal Principles Regarding Defendant’s Claim of Ineffective Assistance of Counsel ¶ 20 1. Ineffective Assistance of Counsel ¶ 21 All defendants enjoy the constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” (Internal quotation marks omitted.) People v. Williams, 2020 IL App (4th) 180554 , ¶ 79. However, “[a] court will not find that defense counsel was ineffective for failing to file a meritless motion to suppress.” People v. McIntosh, 2020 IL App (5th) 170068 , ¶ 54, 146 N.E.3d 813 . “[T]he decision whether to file a motion to suppress is generally ‘a matter of trial strategy, which is entitled to great deference.’ ” People v. Peck, 2017 IL App (4th) 160410 , ¶ 29, 79 N.E.3d 232 (quoting People v. Bew, 228 Ill. 2d 122 , 128, 886 N.E.2d 1002 , 1006 (2008)). Accordingly, this court must determine, based upon this record, whether a motion to suppress would have been meritless. To make that determination, we must decide whether the police had probable cause to search defendant’s vehicle. ¶ 22 2. Search and Seizure -4- ¶ 23 All persons enjoy the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. A police officer may conduct a warrantless search of a stopped vehicle if the officer has probable cause to believe that the vehicle contains contraband. United States v. Ross, 456 U.S. 798 , 799 (1982). “To establish probable cause, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that the automobile contains contraband or evidence of criminal activity.” People v. Hill, 2020 IL 124595 , ¶ 23. Probable cause “requires only that the facts available to the officer—including the plausibility of an innocent explanation— would warrant a reasonable man to believe there is a reasonable probability ‘that certain items may be contraband *** or useful as evidence of a crime.’ ” Id. ¶ 24 (quoting Texas v. Brown, 460 U.S. 730 , 742 (1983)). ¶ 24 3. The Law Pertaining to Cannabis in Illinois ¶ 25 In 2014, the State of Illinois legalized the possession of cannabis for people to whom the State had granted a license to use cannabis for medical purposes. See 410 ILCS 130/1 et seq. (West 2014). In 2016, the State of Illinois passed a law stating that a licensed user of medical cannabis “shall not be considered an unlawful user” and that medical cannabis “purchased by a qualifying patient at a licensed dispensing organization shall be lawful products.” 410 ILCS 130/7 (West 2016). Also in 2016, the State of Illinois decriminalized the possession of less than 10 grams of cannabis and defined possession of less than 10 grams as a “civil law violation.” 720 ILCS 550/4(a) (West 2016). ¶ 26 Earlier this year in Hill, the Illinois Supreme Court acknowledged it had the opportunity to overrule its precedent that the smell of cannabis alone can establish probable cause sufficient to justify the search of a vehicle. The supreme court declined to do so, explaining as -5- follows: “[D]efendant further requests this court to overrule People v. Stout, 106 Ill. 2d 77 , 87[, 477 N.E.2d 498 , 502] (1985), which held the odor of burnt cannabis without other corroborating evidence provides an officer probable cause to search a vehicle. Based on the record, however, we find it unnecessary to address this narrow legal issue.” Hill, 2020 IL 124595 , ¶ 15. Accordingly, Stout remains good law and binding precedent. ¶ 27 B. The Odor of Cannabis Justified the Search of Defendant’s Vehicle ¶ 28 In this case, we must follow the lead of the Illinois Supreme Court. It is important to recognize that the Illinois Supreme Court earlier this very year declined in Hill to overrule Stout. Id. The Hill decision demonstrates that the holding in Stout—namely, that the scent of cannabis alone provides probable cause for a search—was in force in 2017 at the time of the search in this case. See id. ¶ 29 Nonetheless, defendant asks this court to conclude that defense counsel’s performance was deficient for not filing a motion to suppress. Defendant’s contention appears to be based upon changes in Illinois law since 2017 regarding cannabis. However, our assessment of counsel’s performance must be based upon the facts and law known to counsel at the time defendant claims counsel should have filed that motion. See People v. Bailey, 232 Ill. 2d 285 , 299, 903 N.E.2d 409 , 417 (2009). As the State correctly points out, effective assistance does not impose a “duty of clairvoyance.” (Internal quotation marks omitted.) People v. Davis, 2014 IL App (4th) 121040 , ¶ 24, 22 N.E.3d 1167 . Even if Hill could be interpreted differently (which it clearly cannot), counsel could not be ineffective for his alleged failure to act based upon a development of the law that had not yet occurred. -6- ¶ 30 Defendant further argues that even if the smell of cannabis justified the initial search, the officers exceeded the scope of the search when they searched bags in the vehicle’s passenger compartment and its trunk. However, Illinois law clearly provides that if the officers had probable cause to search the vehicle for cannabis, they were justified in searching any containers that had a reasonable likelihood of containing cannabis. See People v. Williams, 2013 IL App (4th) 110857 , ¶ 34, 990 N.E.2d 916 . This is a principle which traces back to Ross, in which the United States Supreme Court wrote the following: “An individual undoubtedly has a significant interest that the upholstery of his automobile will not be ripped or a hidden compartment within it opened. These interests must yield to the authority of a search, however, which *** does not itself require the prior approval of a magistrate. The scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.” Ross, 456 U.S. at 823 . ¶ 31 Although the area of cannabis law is rapidly changing, the law as it stood in February 2017 unequivocally stated that the smell of cannabis emanating from a vehicle was sufficient justification for the police to search it, including its trunk and bags in the passenger compartment. See id. at 821-24 . Because nothing in the record suggests the search was not lawful, defense counsel could not have performed deficiently by not filing a motion to suppress. ¶ 32 C. Problems With Claims of Ineffective Assistance of Counsel on Direct Appeal Based Upon Counsel’s Not Filing a Motion to Suppress ¶ 33 Throughout defendant’s discussion of the search issues on appeal, defendant -7- operates under the (likely erroneous) assumption that the facts that came out at trial are the only facts that could have ever been presented in this case regarding the search of defendant’s vehicle. In fact, it is entirely possible counsel may have decided to not file a motion to suppress because he knew of facts contained in police reports or elsewhere that would obviously defeat the motion. ¶ 34 For example, the “Circumstances of Offense” section of the presentence investigation report (PSI) suggests that there may have been facts outside of the record that may account for why trial counsel did not file a motion to suppress. We note that “ ‘all information appearing in a presentence report may be relied upon by the sentencing judge to the extent the judge finds the information probative and reliable.’ ” (Emphasis in original.) People v. Hibbler, 2019 IL App (4th) 160897 , ¶ 52, 129 N.E.3d 755 (quoting People v. Powell, 199 Ill. App. 3d 291 , 294, 556 N.E.2d 896 , 898 (1990)). The same principle justifies this court’s consideration of information contained in the PSI for the limited purpose of speculating about what additional evidence the State might have presented if defendant had filed a motion to suppress. ¶ 35 The PSI states that Price observed defendant’s vehicle travelling at 115 miles per hour in a 70-mile-per-hour zone. Price pursued defendant as he left the highway on an exit ramp. Defendant did not stop at a stop sign at the end of the ramp and proceeded onto Route 116. Defendant was then traveling 75 miles per hour in a 50-mile-per-hour zone. Price activated his emergency lights and stopped defendant’s vehicle. When Price approached, he smelled a “strong odor of raw cannabis emitting from the vehicle.” Price searched defendant’s person and found $1423 in cash. ¶ 36 Although we did not consider any of this PSI information in coming to our decision, that information nonetheless serves as an example of information possibly (or even probably) known to defense counsel, which may explain why counsel did not file a motion to suppress. And, -8- of course, had counsel filed a motion to suppress and Price testified to this additional information, none of it would have cast defendant in a favorable light at his bench trial. Filing a motion to suppress would in effect have allowed the State to present other-crimes evidence relevant to why the police stopped defendant’s vehicle. Combined with the essentially nonexistent chance of success on such a motion, counsel’s decision to not file a motion to suppress under these circumstances would reflect sound judgment. ¶ 37 The Illinois Supreme Court in Bew, 228 Ill. 2d at 133-34 , explained the difficulties facing courts of review in direct appeals when assessing claims of ineffective assistance of counsel based upon counsel’s not filing a motion to suppress. The supreme court wrote the following: “The record is insufficient to support either party’s argument. Because no motion to suppress was filed, defendant was unable to argue that the evidence was inadmissible on an alternative basis, and the State never had an opportunity to argue its exceptions to the fourth amendment’s probable cause and warrant requirements. In Massaro v. United States, 538 U.S. 500 *** (2003), the United States Supreme Court recognized that ineffective assistance of counsel claims are preferably brought on collateral review rather than on direct appeal. This is particularly true where, as here, the record on direct appeal is insufficient to support a claim of ineffective assistance of counsel. In Massaro, the Supreme Court rejected a Second Circuit Court of Appeals rule that required a defendant to bring a claim for ineffective assistance on direct review or else forfeit that claim. In doing so, the Court reasoned that ‘[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often -9-  incomplete or inadequate for this purpose.’ ” Id. at 134 (quoting Massaro v. United States, 538 U.S. 500 , 504-05 (2003)). The present case reveals the wisdom of the concerns expressed by the supreme court in Bew. ¶ 38 This is not to say that an argument on direct appeal that trial counsel was ineffective for not filing a motion to suppress can never be successful. However, it would be quite rare for a record on direct appeal to affirmatively establish that counsel did not file a motion to suppress because of counsel’s error of judgment or understanding. An example of a case in which the record was adequate to justify a claim on direct appeal that defense counsel was ineffective for failing to file a motion to suppress is Peck. ¶ 39 In Peck, this court concluded counsel was ineffective for failing to file a motion to suppress because the record showed the police violated Miranda v. Arizona, 384 U.S. 436 (1966), by continuing to question the defendant after he invoked his Miranda rights. Peck, 2017 IL App (4th) 160410 , ¶ 38. This court wrote that “[c]ounsel’s failure to file this motion was not the result of a tactical decision but of a fundamental misjudgment. Counsel’s testimony at the Krankel hearing demonstrated she erroneously believed a motion to suppress would be without merit because defendant reinitiated the conversation with police.” Id.; see People v. Krankel, 102 Ill. 2d 181 , 464 N.E.2d 1045 (1984). In other words, unlike in this case, the record in Peck affirmatively established the facts necessary to conclude counsel performed deficiently. ¶ 40 The record in this case also suggests that even if the officers lacked probable cause to search the vehicle based on the smell of cannabis, the inevitable discovery doctrine would likely apply. “This exception [to the exclusionary rule] permits evidence, that would otherwise be inadmissible at trial, to be admitted where the State can show that such evidence would inevitably have been discovered without reference to the police error or misconduct.” (Internal quotation - 10 - marks omitted.) People v. Sutherland, 223 Ill. 2d 187 , 227-28, 860 N.E.2d 178 , 209 (2006). ¶ 41 Price testified he arrested defendant for driving 115 miles per hour in a 70-mile- per-hour zone. That is a misdemeanor charge, not a mere traffic ticket (see 625 ILCS 5/11-601.5(b) (West 2016)), and Price’s testimony suggests that he took defendant into custody. If that inference is correct, then it is unlikely that the police would have simply abandoned defendant’s vehicle on the side of the road. Instead, they likely would have had it towed, and as often happens when a vehicle is towed, the contents of the vehicle would have been subject to an inventory search by the police. “Inventory searches are another exception to the general prohibition against warrantless searches.” People v. Cregan, 2011 IL App (4th) 100477 , ¶ 31, 961 N.E.2d 926 . If this assessment of the likely circumstances in this case is correct (and we note that the State could have presented evidence to this effect if defendant had filed a motion to suppress), then the seized evidence would have inevitably been discovered, and no motion to suppress would have been successful. ¶ 42 III. CONCLUSION ¶ 43 For the reasons stated, we affirm the trial court’s judgment. ¶ 44 Affirmed. - 11 -  No. 4-18-0819 Cite as: People v. Rowell, 2021 IL App (4th) 180819 Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 17-CF- 51; the Hon. Jennifer H. Bauknecht, Judge, presiding. Attorneys James E. Chadd, Catherine K. Hart, and Darrel F. Oman, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant: Attorneys Randy Yedinak, State’s Attorney, of Pontiac (Patrick for Delfino, David J. Robinson, and James Ryan Williams, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People. - 12 -

2021-01-26 23:03:16.921275+00

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2021/4thDistrict/4190103.pdf

2021 IL App (4th) 190103 FILED January 26, 2021 Carla Bender NO. 4-19-0103 4th District Appellate Court, IL IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County JOHNNIE W. KADOW, ) No. 17CF644 Defendant-Appellant. ) ) Honorable ) Robert K. Adrian, ) Judge Presiding. JUSTICE DeARMOND delivered the judgment of the court, with opinion. Presiding Justice Knecht concurred in the judgment and opinion. Justice Turner dissented, with opinion. OPINION ¶1 In August 2017, the State charged defendant, Johnnie W. Kadow, with five counts of predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2016). In October 2018, defendant moved to suppress statements he made during a recorded interview, claiming he did not knowingly and voluntarily waive his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)). Following a November 2018 evidentiary hearing, the trial court took the matter under advisement and invited the parties to submit memoranda of law in support of their positions. In December 2018, the trial court denied defendant’s motion to suppress, finding defendant reinitiated contact with the officer after invoking his right to counsel and then knowingly and voluntarily waived his Miranda rights. As a result, the court concluded the State could introduce defendant’s statements into evidence as corroboration of the minor victims’ hearsay statements, which the court previously found admissible under section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2016)). In February 2019, the court held a hearing on defendant’s posttrial motion, which alleged the trial court’s denial of his motion to suppress was error. In denying defendant’s posttrial motion, the trial court again noted defendant asserted his rights, but then made a knowing and voluntary waiver of his Miranda rights. ¶2 On appeal, under the umbrella of a claim of ineffective assistance of counsel, defendant argues (1) defendant’s intellectual disability rendered his statement involuntary, (2) the police undermined defendant’s Miranda warnings by failing to respect defendant’s invocation of counsel, (3) defendant’s will was overcome by the officer’s threats of jail and offers to help defendant were conditioned on defendant’s confession, and (4) based on the aforementioned errors, defendant’s statement was involuntary and unreliable. Defendant claims trial counsel was ineffective for failing to seek to suppress defendant’s statements on the grounds that the statements were involuntary. The State argues trial counsel was not ineffective because the evidence showed defendant gave a voluntary statement and, after invoking his right to counsel, he initiated contact with the police officer. The State claims after defendant initiated contact with the officer, he then voluntarily waived his Miranda rights. Because we agree with defendant that the police undermined defendant’s Miranda warnings by initiating contact after defendant’s invocation of counsel, and because he was incapable of understanding, much less voluntarily waiving, his Miranda rights, we reverse and remand. ¶3 I. BACKGROUND ¶4 In August 2017, the State charged defendant by information with five counts of predatory criminal sexual assault of a child, Class X felonies. 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2016). -2- ¶5 In October 2017, the State filed a motion in limine requesting to admit hearsay statements made by the two minor victims, pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2016)). That same month, defense counsel filed a “Suggestion of Fitness and Motion for Examination,” questioning whether defendant was fit to stand trial because defendant “cannot read or write and seems unable to understand the legal process and possible consequences.” ¶6 In November 2017, Dr. Frank Froman, a clinical psychologist, submitted a fitness report indicating defendant reads at a kindergarten level, his perceptual motor abilities are akin to a five-year-old child, he functions at a third-grade level, and he could not comprehend his legal rights—neither what they are, nor what they mean. Dr. Froman concluded defendant’s “condition is fixed, and unlikely to change his [sic] result of any form or therapy, medication, or the like. His condition is essentially immutable.” Dr. Froman found defendant incapable of “understanding the charges against him, and cooperating with his attorney in formulating his defense.” After finding defendant unfit to stand trial, the court ordered he be placed in the custody of the Illinois Department of Human Services (DHS) for evaluation to determine his fitness status and whether he can be made fit within one year. ¶7 In May 2018, DHS filed a “Progress Report,” pursuant to section 104-18(a)(3) (725 ILCS 5/104-18(a)(3) (West 2016)), which stated defendant did not have the capacity to meet the standard of legal fitness because, “[h]is thought process consists primarily of simplistic concrete concepts (as opposed to abstract ideas), and his learning process consists primarily of rote memorization acquired through repetition over time. Consequently, his ability to adequately understand the -3-  legal proceedings against him is severely compromised, and he does not have the skills necessary to effectively participate in his own defense.” The report concluded defendant was unlikely to ever attain legal fitness. The findings of this report were consistent with each of the progress reports filed with the court. Based on this, defense counsel filed a motion for a discharge hearing pursuant to section 104-25 (725 ILCS 5/104-25 (West 2016)) of the Code. See 725 ILCS 5/104-23 (West 2016) (authorizing a discharge hearing where an unfit defendant cannot become fit to stand trial because there is a substantial probability that he will not attain fitness within the allotted time period). ¶8 In October 2018, the trial court held a hearing pursuant to section 115-10(b) of the Code (725 ILCS 5/115-10(b) (West 2016)) to determine the admissibility of the minor victims’ hearsay statements. The minors’ mother and grandmother testified about the statements the minors made to them regarding the allegations. The State also presented evidence from the director of forensic interviewing of the Children’s Advocacy Center about her recorded interview with both minors, from a social worker who counseled both minors, and from Detective Hufford’s interview of defendant. The court found the statements the minors made to their mother and grandmother were reliable, but if the children were found to be unavailable to testify, then the State was required to present corroborating evidence in order for the court to admit them. The corroborating evidence would be defendant’s recorded interview and eventual admission of guilt. On the same day as the hearing, defense counsel filed a motion to suppress the statements defendant made to Detective Hufford, claiming that, due to his learning disability, he was unable to understand and comprehend his Miranda rights and was therefore unable to make a knowing and voluntary waiver of those -4- rights. The court reserved ruling on whether the minors would be declared unavailable until it ruled on defendant’s motion to suppress. ¶9 In November 2018, the trial court heard defendant’s motion to suppress. The evidence consisted of the recorded interview of defendant and prior reports authored by mental health professionals concerning defendant’s fitness. During the interview, Detective Hufford read defendant’s Miranda rights, and defendant confirmed he understood them. Hufford reviewed the admonition form with defendant; however, after admitting he could not write, defendant said he did not understand the meaning of his rights, and Hufford attempted to explain them to him in simpler terms. Detective Hufford had to explain the practical application of defendant’s Miranda rights before defendant signed the admonition form. After denying the allegations, the following dialogue took place: “DEFENDANT: Can I talk to a lawyer? DETECTIVE HUFFORD: Huh? DEFENDANT: Can I talk to a lawyer? DETECTIVE HUFFORD: You want a lawyer? I am going to call to see if the State’s Attorney’s Office wants you to be lodged in jail right now, okay? If you don’t want to talk to me. DEFENDANT: I’ll talk to you. DETECTIVE HUFFORD: No. DEFENDANT: I’ll talk to you. DETECTIVE HUFFORD: I don’t think you’re being honest with me already. DEFENDANT: Yeah, I was out of town. I want to talk to you. -5-  DETECTIVE HUFFORD: (while exiting the room) Remain seated. DEFENDANT: I’ll talk to you, please.” Detective Hufford responded, “You just said you wanted a lawyer that means I have to stop. Unless you really want to talk to me.” Defendant then reiterated he wanted to speak with him and confirmed he did not want an attorney. Hufford, in the presence of another detective, read defendant his Miranda rights again, where defendant (again) exhibited difficulty in understanding them. After approximately 40 minutes of denying the allegations and listening to Hufford’s repeated demands for honesty, offers of help, and threats of jail, defendant eventually admitted to sexually abusing the two minors. At the conclusion of the hearing, the court took the matter under advisement. ¶ 10 In December 2018, the court found defendant’s statements to the police were made knowingly and voluntarily, and defendant understood his Miranda rights because he invoked his right to an attorney after being questioned by Detective Hufford. The court reasoned defendant reinitiated the interrogation by saying he wanted to talk after Hufford said he would have to contact the state’s attorney’s office about putting defendant in jail. Hufford Mirandized him again, and “although [defendant] was unable to basically tell the officers what [his rights] were in full, he stated he understood those.” The trial court acknowledged that “while [defendant] does have limitations, he is able to function. He knew what his rights were. He invoked his rights. And then once he invoked his rights, then he again waived his rights.” ¶ 11 Later that month, the trial court held a discharge hearing where the court heard testimony from the minors’ mother and grandmother and reviewed defendant’s recorded interview. At the conclusion of evidence, the court found the State presented sufficient evidence to find -6- defendant “not not guilty” on all counts and remanded defendant to DHS for up to an additional two years. ¶ 12 This appeal followed. ¶ 13 II. ANALYSIS ¶ 14 A. Plain Error ¶ 15 Although initially argued under the umbrella of ineffective assistance of counsel, defendant’s reply brief contends we should consider defendant’s Miranda violation under the plain error doctrine. In People v. White, 2011 IL 109689 , ¶ 133, 956 N.E.2d 379 , our supreme court noted, “Plain-error review under the closely-balanced-evidence prong of plain error is similar to an analysis for ineffective assistance of counsel based on evidentiary error insofar as a defendant in either case must show he was prejudiced ***.” Because we believe this Miranda violation prejudiced defendant and the evidence was closely balanced, we accept defendant’s invitation to analyze this issue as plain error. ¶ 16 We first note plain error was not argued in defendant’s opening brief and, as a result, the State has not had the opportunity to argue forfeiture. Although the better practice would have been to raise the plain error arguments in his opening brief, our supreme court has told us we may still conduct a plain error analysis even if it was raised for the first time in an appellant’s reply brief. See People v. Ramsey, 239 Ill. 2d 342 , 412, 942 N.E.2d 1168 , 1206 (2010) (When defendant fails to argue plain error in his opening brief, a court of review may still review the issue for plain error if argued in his reply brief.). ¶ 17 While defendant argued to the trial court his statement was not made voluntarily due to his intellectual disability, trial counsel never argued defendant’s statement should be suppressed because Detective Hufford violated Miranda by failing to honor defendant’s request -7- for counsel. Since defendant did not raise this issue with the trial court, we would normally find he forfeited appellate review of this issue. See People v. Piatkowski, 225 Ill. 2d 551 , 564, 870 N.E.2d 403 , 409 (2007). However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” ¶ 18 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565 . First-prong plain error is established by demonstrating “prejudicial error,” i.e., because the evidence was so closely balanced, “the error alone severely threatened to tip the scales of justice.” People v. Sebby, 2017 IL 119445 , ¶ 51, 89 N.E.3d 675 . Prejudice is not presumed; a defendant must meet his burden to show the error was actually prejudicial. People v. Herron, 215 Ill. 2d 167 , 187, 830 N.E.2d 467 , 479-80 (2005). By contrast, under the second prong, prejudice is presumed because of the importance of the right involved, irrespective of the strength of the evidence. People v. Fort, 2017 IL 118966 , ¶ 18, 88 N.E.3d 718 . However, if error did occur, we only need to consider if one of the prongs of the plain error doctrine has been satisfied. People v. Sykes, 2012 IL App (4th) 111110 , ¶ 31, 972 N.E.2d 1272 . The first step in any plain error analysis is determining “whether there was a clear or obvious error at trial.” Sebby, 2017 IL 119445 , ¶ 49. -8- Accordingly, we must first determine whether the trial court erred by admitting defendant’s recorded statement after defendant’s request for counsel. ¶ 19 B. Violating Miranda Renders Defendant’s Statements Involuntary ¶ 20 On appeal, defendant argues (1) defendant’s intellectual disability rendered his statement involuntary, (2) the police undermined defendant’s Miranda warnings by failing to respect defendant’s invocation of counsel, (3) defendant’s will was overcome by the officer’s threats of jail and offers to help defendant were conditioned on defendant’s confession, and (4) based on the aforementioned errors, defendant’s statement was involuntary, unreliable, and inadmissible. We agree defendant’s statement was inadmissible on two grounds: (1) Hufford undermined his Miranda rights by initiating contact after defendant asked for counsel and (2) defendant’s intellectual disability rendered him incapable of voluntarily waiving his Miranda rights. The two are somewhat intertwined, since defendant’s intellectual disability is a significant factor among those considered when determining the effect of a Miranda violation in this case. ¶ 21 “The purpose of [Miranda warnings] is to ensure that the accused is aware of his substantive constitutional right not to incriminate himself and to provide him with the opportunity to exercise that right.” People v. Winsett, 153 Ill. 2d 335 , 348, 606 N.E.2d 1186 , 1194 (1992). The importance of safeguarding this substantial right is paramount, and a violation of it impairs the integrity of the judicial process. Herron, 215 Ill. 2d at 177-78 . In Miranda, the United States Supreme Court held when an accused invokes his right to counsel, “the interrogation must cease until an attorney is present.” (Emphasis added.) Miranda, 384 U.S. at 474 . The United States Supreme Court further held that when a suspect expresses a desire to deal with the police only through counsel, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or -9- conversations with the police.” Edwards v. Arizona, 451 U.S. 477 , 484-85 (1981). The Illinois Supreme Court interpreted the Edwards holding to mean that “[i]f the police subsequently initiate a conversation with the accused in the absence of counsel, the accused’s statements are presumed involuntary and are not admissible as substantive evidence at trial.” People v. Woolley, 178 Ill. 2d 175 , 198, 687 N.E.2d 979 , 990 (1997). As we noted in People v. Peck, 2017 IL App (4th) 160410 , ¶ 33, 79 N.E.3d 232 , once defendant invokes his right to counsel, we look to the “words or actions” of the police “that [they] should know are reasonably likely to elicit an incriminating response from the suspect.” (Emphases and internal quotation marks omitted.) This focus, the court said in Hunt, is because “ ‘Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.’ ” People v. Hunt, 2012 IL 111089 , ¶ 30 (quoting Rhode Island v. Innis, 446 U.S. 291 , 300-01 (1980)). “The court’s preliminary inquiry is whether the defendant, rather than the police, initiated the conversation in a manner evincing a ‘willingness and a desire for a generalized discussion about the investigation.’ ” People v. Olivera, 164 Ill. 2d 382 , 390, 647 N.E.2d 926 , 930 (1995) (quoting Oregon v. Bradshaw, 462 U.S. 1039 , 1045-46 (1983)). ¶ 22 When a defendant moves to suppress evidence claiming a violation of Miranda rights, there is a two-part analysis. People v. Luedemann, 222 Ill. 2d 530 , 542, 857 N.E.2d 187 , 195 (2006). We first examine whether the trial court’s factual findings are against the manifest weight of the evidence. Luedemann, 222 Ill. 2d at 542 . However, a court of review is permitted to undertake its own assessment of the facts and draw its own conclusions when deciding what relief, if any, should be granted. People v. Pitman, 211 Ill. 2d 502 , 512, 813 N.E.2d 93 , 101 (2004). Next, we review de novo the trial court’s ruling regarding the motion to suppress. People v. Harris, 228 Ill. 2d 222 , 230, 886 N.E.2d 947 , 954 (2008). Where, as here, we are asked to determine whether - 10 - a suspect has initiated further communication in the absence of counsel, an additional two-part inquiry is necessary: (1) whether the accused, after invoking his right to counsel, initiated further conversation evincing a willingness and desire for a generalized discussion about the investigation and (2) whether the accused has subsequently knowingly and intelligently waived his right to counsel and his right to remain silent. Bradshaw, 462 U.S. at 1045-46 ; Woolley, 178 Ill. 2d at 198- 99. ¶ 23 It is undisputed defendant is intellectually disabled. Dr. Froman found him to have a functional intelligence quotient (IQ) of 56, which placed him in the “mid-mild range of intellectual dysfunction.” He was unable to read beyond a kindergarten level and had the perceptual motor skills of a five-year-old child. Dr. Froman concluded he could answer “extremely simple questions, of the kind that you would typically give to an eight-year-old child.” His overall functioning was at a third-grade level. Dr. Froman described him as “a somewhat sheepish, very minimal, and intellectually pauce [(deficient)] individual whose ability to understand, comprehend, and make sense of his world is quite low.” Dr. Froman also found defendant’s condition to be “immutable,” meaning it was not likely to change over time. This was borne out by the several progress reports noting his condition did not change and he seemed no more able to comprehend his rights or the process. After he was found unfit to stand trial and sent to DHS, he underwent further psychological testing and assessment of his adaptive functioning. DHS found him to have an even lower IQ of 50, but because severity classifications are based on adaptive functioning, his level of adaptive functioning (the age equivalent of nine years, eight months) placed him in the range for a mild intellectual disability diagnosis. According to the DHS evaluation, 99.9% of people his age would score higher than he did intellectually. DHS highlighted the fact that “[t]his is an extremely low level of intellectual functioning” and concluded that the - 11 - defendant was unlikely to ever attain legal fitness. The latest 90-day progress report in the court file, dated February 25, 2019—a year after his admission—revealed that although defendant was actively engaged in the Legal Fitness Restoration Program and “wants to participate appropriately,” “[d]ue to the severity of [his] cognitive impairment,” “[defendant] simply does not have the cognitive capacity to learn the material covered in the class.” As the authoring psychologist, Dr. Holt, put it, “[e]ffective communication with [defendant] requires interaction as though working with a very young child.” She indicated defendant was unlikely to “ever attain more than a very superficial understanding of the judicial process.” He never passed the class he was taking to attempt to attain fitness, and Dr. Holt ultimately concluded he was “unlikely to ever attain Legal Fitness.” ¶ 24 Although the investigating officer did not have access to the various mental health reports later available to the trial court, defendant’s disability was evident to Detective Hufford, the interviewing officer, and is obvious from viewing the video-recorded interview. Defendant told Hufford he could not read and struggled to understand the application of his Miranda rights. Initially, defendant simply responded affirmatively after each right was read to him. Once he told Hufford he could not read and the officer began going over each right again, defendant told him he did not understand. Hufford then began attempting to explain each right in simpler terms. Defendant has a speech impediment (one report indicated “public defender” was pronounced “pubber fender”), which is obvious on the video, and his physical features and mannerisms further highlight his cognitive deficits. Dr. Froman noted he could write his name only with difficulty and that is apparent from the video. These things had to be obvious to the detective because they are painfully obvious to even a casual observer of the video. During the interrogation, although defendant eventually said he understood his Miranda rights, he was unable to explain what they - 12 - are and how they apply to him. This is consistent with the reports of the mental health experts at Choate and the initial fitness evaluation, all of which concluded defendant did not have the capacity to understand his rights or the legal concepts involved. While it is true the detective was never questioned about his perception of defendant’s ability to understand the Miranda warnings, it should be noted he only testified at the section 115-10 hearing, where the defendant’s understanding would not have been relevant, and the discharge hearing, which occurred after defendant had already lost his motion to suppress on that issue. ¶ 25 Shortly after the officer began questioning defendant about the allegations and claimed defendant was not being honest, defendant stated, “Can I talk to a lawyer?” Detective Hufford responded, “Huh?” and defendant repeated his request, “Can I talk to a lawyer?” At this moment, defendant twice unambiguously requested counsel, and any further questioning by the officer at this point should have ceased. Miranda, 384 U.S. at 474 (stating when an accused invokes this right to counsel, “the interrogation must cease until an attorney is present”). In response to defendant’s request for counsel, the detective responded, “You want a lawyer?” After a brief pause, he tells defendant, “I am going to call to see if the State’s Attorney’s Office wants you lodged in jail right now, okay? If you don’t want to talk to me.” It is important to note that after defendant requested counsel, he did not initiate contact with the detective nor demonstrate a willingness to speak with him about the allegations. It was the detective who initiated the contact and did so with a statement implying jail was a consequence of defendant’s decision to ask for an attorney, unless defendant talked to him. This is violative of Miranda and Edwards in that the clear import of Hufford’s comment, especially to someone of defendant’s limited intellectual abilities, was that the only way he could avoid the possibility of being “lodged in jail” was to give up his right to counsel and talk to the officer. - 13 - ¶ 26 As we note below when addressing the issue of the voluntariness of defendant’s statement in general, “ ‘it is generally recognized that the [intellectually disabled] are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights.’ ” People v. Brown, 2012 IL App (1st) 091940 , ¶ 38, 967 N.E.2d 1004 (quoting People v. Braggs, 209 Ill. 2d 492 , 514, 810 N.E.2d 472 , 486 (2003)). If defendant is incapable of understanding his rights in the first place, as all evidence indicated, how can he possibly knowingly waive them once confronted with the option of talking or jail? “To be valid, the waiver must reflect an intentional relinquishment or abandonment of a known right or privilege. The accused must possess a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” In re W.C., 167 Ill. 2d 307 , 327-28, 657 N.E.2d 908 , 919 (1995). In W.C., our supreme court pointed out that, although evidence of a mental deficiency may not ipso facto render a Miranda waiver invalid, “it is nonetheless a factor which must be considered in the totality of the circumstances under which the right to counsel was waived or a statement or confession given.” W.C., 167 Ill. 2d at 328 . ¶ 27 The State claims the interaction here between defendant and Hufford is analogous to that in People v. Enoch, 122 Ill. 2d 176 , 192-93, 522 N.E.2d 1124 , 1132-33 (1988), claiming the officer’s statement after defendant invoked his right to counsel was merely an explanation of what normal police procedure would take place next and not designed to elicit anything. However, putting aside that Enoch does not involve a defendant with this defendant’s cognitive deficiencies, - 14 - this was not an explanation of what was about to happen procedurally as in Enoch, i.e., informing defendant he was going to be arrested on the charges of aggravated sexual abuse of a child and booked into jail. This was a not-so-thinly veiled threat made to an intellectually disabled individual, indicating that unless defendant cooperated and talked to the investigating officer, he may have to “be lodged in jail.” Hufford expressly connected defendant’s refusal to talk and request for a lawyer with further incarceration. Unlike in Enoch, Hufford did not simply explain the procedure; he conditioned the defendant’s incarceration on his not talking to him. The only conceivable purpose for the detective’s statement was to threaten the prospect of incarceration in the hope defendant would retract his request for counsel and possibly provide an incriminating statement. The fact that defendant is then seen on the video pleading with Hufford to talk is all the more evidence of the manipulative effect of his words on a suspect with such severe developmental disabilities. We recognize police are provided latitude in the questioning of a suspect. See People v. House, 141 Ill. 2d 323 , 375, 566 N.E.2d 259 , 282 (1990). However, once a suspect unambiguously invokes his right to counsel, the police are not entitled to make statements designed to pressure defendant to retract his request for counsel—they are required to cease the interrogation until defendant’s attorney is present. Edwards, 451 U.S. at 484-85 ; see also Winsett, 153 Ill. 2d at 350 (“Any waiver of the right to counsel given in a discussion initiated by the police is presumed invalid ***.”). ¶ 28 The defendant’s comment, “I’ll talk to you,” after being advised Hufford is going to talk to the state’s attorney about jailing him “[i]f you don’t want to talk to me,” was not “a statement that evinces a ‘willingness and a desire for a generalized discussion about the investigation,’ ” especially coming from someone with defendant’s cognitive deficits. Woolley, 178 Ill. 2d at 198 (quoting Bradshaw, 462 U.S. at 1045-46 ). All the reports noted defendant’s lack - 15 - of any sort of abstract thought process and that his thinking was in the most concrete of terms. His statement was in direct response to Hufford’s last comment about what was going to happen “[i]f you don’t want to talk to me.” Here, Detective Hufford was obligated to stop talking to defendant after defendant requested (twice) to speak with a lawyer. Accordingly, we find it was error for the trial court to deny defendant’s motion to suppress because defendant’s statement was involuntary. After a clear and unequivocal exercise of his right to counsel, he was not subject to further interrogation by the police until counsel was made available to him. Edwards, 451 U.S. at 484-85 . ¶ 29 Thus, the trial court’s factual finding that defendant’s statements were knowingly and voluntarily waived is against the manifest weight of the evidence. Luedemann, 222 Ill. 2d at 542 . Because the detective reinitiated the contact after defendant invoked his right to counsel, defendant’s statements are involuntary and inadmissible. Woolley, 178 Ill. 2d at 198 . ¶ 30 C. Defendant Did Not Voluntarily Waive Miranda ¶ 31 Defendant contends any waiver of Miranda rights by him could not have been voluntary because he was not able to understand them. “ ‘The concept of voluntariness includes proof that the defendant made a knowing and intelligent waiver of his privilege against self-incrimination ***.’ ” People v. Wilson, 2020 IL App (1st) 162430 , ¶ 43 (quoting Braggs, 209 Ill. 2d at 505). Our supreme court has also upheld the longstanding principle that whether a defendant made a knowing and intelligent waiver of his rights is determined by the particular facts and circumstances of each case, which includes the “ ‘background, experience, and conduct of the accused.’ ” Braggs, 209 Ill. 2d at 515 (quoting Johnson v. Zerbst, 304 U.S. 458 , 464 (1938)). Limited intellectual capacity is one of several factors to be considered to determine if a defendant was incapable of waiving Miranda rights. People v. Foster, 168 Ill. 2d 465 , 476, 660 N.E.2d 951 , 956 (1995). As we noted above, when the defendant has limited mental capacity, particular - 16 - attention must be given to this fact. Although an intellectual deficit does not, by itself, render a Miranda waiver invalid, our supreme court in Braggs discussed the special care necessary with individuals with developmental disabilities: “[I]t is generally recognized that the [intellectually disabled] are considered more susceptible to police coercion or pressure than people of normal intellectual ability, they are predisposed to answer questions so as to please the questioner rather than to answer accurately, they are more likely to confess to crimes they did not commit, they tend to be submissive, and they are less likely to understand their rights.” Braggs, 209 Ill. 2d at 514. While the facts of Braggs may be dissimilar, the principles of law and observations about the unique issues involved when relating to persons with intellectual disabilities remain the same. Nothing about the language of the Supreme Court’s analysis in Braggs would imply its holdings were limited to the facts of the case. ¶ 32 Unlike many cases where we must glean from the circumstances a defendant’s ability to understand and waive voluntarily his or her Miranda rights, here we have experts documenting his inability to do so. As part of the analysis above, we outlined the substantial record of defendant’s cognitive deficits. According to the fitness reports, defendant is a 36-year-old man who reads at a kindergarten level, has motor skills comparable to a five-year-old, and has an IQ of 56, later tested at 50, which places him in the range of having “mid-mild range of intellectual dysfunction.” He functions at the lowest 1% of the population intellectually. His overall ability to function is equivalent to a third-grader and, according to the examining psychologist, “his understanding of himself, of the world, of interactions, and the law, [are] no greater than that of a - 17 - typical eight-year-old child.” Dr. Froman indicated a discussion of defendant’s rights revealed, “[w]hile he did not recall if he understood them, nor if they were read to him, it seemed clear after going through them that he does not understand what they are, nor what they mean.” The report indicates “he is extremely dependent upon his external environment (i.e., prompts/supervision from others) to ensure the safety of self and others.” ¶ 33 During the interview, defendant appears scared and confused and responds mostly with one-word answers. After defendant asks for a lawyer, and the detective informs him he is going to contact the state’s attorney’s office to see if they want defendant to be “lodged in jail,” defendant appears visibly scared, leans forward in his chair, and says he wants to talk. As Detective Hufford is leaving the room, defendant responds, “I will talk to you, please.” In Braggs, our supreme court noted the myriad issues that are involved in questioning people who are intellectually disabled. Braggs, 209 Ill. 2d at 514. In Wilson, 2020 IL App (1st) 162430 , ¶ 48, the First District observed that our courts have normally described “mental retardation” (now “intellectual disability”) as persons with an IQ of less than 70 (People v. Daniels, 391 Ill. App. 3d 750 , 754, 908 N.E.2d 1104 , 1107 (2009)) or 75 (People v. Jones, 2014 IL App (1st) 120927 , ¶ 59, 8 N.E.3d 470 ; In re S.W.N., 2016 IL App (3d) 160080 , ¶ 73, 58 N.E.3d 877 ). Here, we are dealing with an individual with a functional IQ of 50, who “requires interaction as though working with a very young child.” The obligation of the State to prove that a waiver was knowing and intelligent was described by the Miranda court as a “heavy burden.” Miranda, 384 U.S. at 475 . Courts are to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” (Internal quotation marks omitted.) Zerbst, 304 U.S. at 464 . Here, the trial court was asked to find that defendant, after being threatened with jail, was fully aware of the nature of the rights he waived and the ramifications of such decision. The fitness report and the status reports from Choate clearly - 18 - reveal he never fully understood his rights and was equally unable to comprehend the ramifications of a waiver. ¶ 34 Defendant’s background, experience, and conduct reveal he was unable to voluntarily waive his Miranda rights. See Braggs, 209 Ill. 2d at 515. Because the issue of defendant’s involuntary waiver due to his intellectual disability was raised in the trial court, we need not conduct a plain error analysis. Instead, we simply find defendant was incapable of waiving his Miranda rights and it was error to deny defendant’s motion to suppress. ¶ 35 Having found it was clear and obvious error to deny defendant’s motion to suppress based on Detective Hufford’s Miranda violation and that it was cognizable under first-prong plain error, we must determine whether the error was prejudicial error, i.e., because the evidence was so closely balanced, “the error alone severely threatened to tip the scales of justice.” Sebby, 2017 IL 119445 , ¶ 51. Defendant’s statement to the police was the only corroboration supporting the victims’ hearsay statements. During the section 115-10 hearing, the trial court, when discussing the potential unavailability of the child-victims, noted defendant’s statement might constitute the corroboration necessary. The only question in the court’s mind was whether defendant’s statement would still be available for corroboration if it was found inadmissible at the suppression hearing. Without defendant’s recorded statement, the victims’ hearsay statements were not admissible if they proved unavailable, and the State would have had no other evidence to present. The court eventually found both victims “unavailable” for the purposes of testifying at defendant’s discharge hearing. Evaluating the totality of the evidence and conducting a qualitative, commonsense assessment of it within the context of the case (People v. Belknap, 2014 IL 117094 , ¶¶ 52-53, 23 N.E.3d 325 ), we can easily conclude admission of the statement was the sort of “prejudicial error” to which Sebby referred. “[A] defendant who has shown clear error and closely balanced evidence - 19 - has shown prejudice and is entitled to relief under the first prong of the plain error doctrine.” Sebby, 2017 IL 119445 , ¶ 64 (citing Piatkowski, 225 Ill. 2d at 568 ). Accordingly, we find defendant was unable to provide a voluntary and knowing waiver of his Miranda rights as a result of his intellectual disability and the trial court erred in denying defendant’s motion to suppress. Further we find it was first-prong plain error and a violation of defendant’s Miranda rights for Detective Hufford to fail to honor defendant’s request for counsel. Therefore, we remand this matter to the trial court for further proceedings consistent with this order. We decline to address the other issues raised by defendant in light of our remand. ¶ 36 III. CONCLUSION ¶ 37 For the reasons stated, we reverse the trial court’s judgment and remand the cause for a new discharge hearing consistent with this order. ¶ 38 Reversed and remanded. ¶ 39 JUSTICE TURNER, dissenting: ¶ 40 I respectfully dissent. Because I agree with the trial court’s decision to deny defendant’s motion to suppress, I would affirm the trial court’s judgment denying defendant’s motion for discharge. ¶ 41 Initially, I note the trial court first heard testimony from Detective Hufford at the hearing held pursuant to section 115-10(b) of the Code (725 ILCS 5/115-10(b) (West 2016)). The detective indicated he provided defendant with Miranda warnings before defendant made any inculpatory statements. No one questioned the detective on whether defendant appeared to understand the warnings. The detective testified he recorded the entire interview. According to the detective, defendant’s inculpatory statements included his admissions he had (1) inserted his penis and fingers into the female child’s vagina, (2) touched his penis on her mouth, (3) touched the - 20 - male child’s penis, and (4) made the male child touch his penis. ¶ 42 Moving on to the suppression hearing, the parties stipulated to a foundation for the admissibility of the DVD recording of the detective’s interview of defendant. The trial court then watched the DVD in its entirety, took the matter under advisement, and allowed the State and defendant to submit written arguments. ¶ 43 At a subsequent hearing, the trial court commented that it had considered the evidence presented and the parties’ arguments. The court then found the detective explained to defendant his Miranda rights, defendant understood his rights, and defendant knowingly and voluntarily made statements to the police. According to the court, defendant’s understanding was displayed when he asked for an attorney shortly after the detective’s questioning began. After considering all the evidence before it, the court stated: “[T]he Court finds that the defendant knowingly and voluntarily waived his rights, and regardless of the mental functioning of the defendant, he demonstrated that he understood what his rights were, and that is consistent with the reports that he is able to function on a mild retardation basis, and that’s basically what he demonstrated during the interview, that while he does have limitations, he is able to function. He knew what his rights were. He invoked his rights. And then once he invoked his rights, then he again waived his rights. It was explained to him again, and he did a knowing waiver, and there is no reason to believe that once he invoked his rights that he didn’t know then that he could invoke his rights again and ask for an attorney, and he did not do that.” ¶ 44 The court then denied defendant’s motion to suppress. The court additionally found the youngest of the two children defendant admitted he molested was unavailable to testify. - 21 - ¶ 45 At the outset of the discharge hearing, the trial court found the oldest child was also unavailable to testify. The minors’ grandmother and mother then testified about the statements the children made when they confided in them. The mother indicated the two children defendant assaulted were her 10-year-old daughter and her 7-year-old son. In addition, Detective Hufford testified about his interview of defendant and explained he had advised defendant at the outset of the interview that it would be recorded. As before, the detective was not questioned on whether defendant appeared to understand the Miranda warnings, although defendant did renew his motion to suppress. Over defendant’s objection, the trial court then, for the second time, reviewed the DVD in its entirety. The trial court denied defendant’s discharge motion and found defendant not acquitted on all five counts. ¶ 46 While denying a posthearing motion filed by defendant, the trial court reiterated many of the findings it made when denying defendant’s motion to suppress. The court also distinguished the situation in this case from Braggs, which was heavily relied upon by defendant. ¶ 47 In Braggs, a detective advised the defendant of her Miranda rights from a standard form without any further explanation. Braggs, 209 Ill. 2d at 499. The defendant gave no verbal responses to the warnings, merely nodded her head affirmatively, and never signed a waiver form. Braggs, 209 Ill. 2d at 499. Moreover, the detective acknowledged the defendant’s purported sister and guardian initially was needed as an interpreter in order for the detective to communicate with the defendant. Braggs, 209 Ill. 2d at 499. The court noted the purported sister was still acting as an interpreter when the defendant made her inculpatory statements. Braggs, 209 Ill. 2d at 499-500. ¶ 48 Here, defendant did give verbal responses to the Miranda warnings and signed a waiver of rights form. Additionally, the detective here explained defendant’s Miranda rights in detail, and, unlike in Braggs, an interpreter was not required for the detective to communicate with - 22 - defendant. ¶ 49 Also, in Braggs, a psychiatrist testified the defendant was moderately mentally retarded, and a clinical psychologist testified the defendant was mentally retarded. Braggs, 209 Ill. 2d at 500-01. Both of the experts opined the defendant was unable and incapable of understanding her Miranda warnings. Braggs, 209 Ill. 2d at 500-02. ¶ 50 In the case sub judice, Dr. Froman’s single report and Dr. Holt’s multiple progress reports were introduced into evidence. All of the reports indicated the evaluations were prepared to determine whether defendant was fit to stand trial. According to Dr. Holt’s reports, defendant’s level of adaptive functioning decreased defendant’s intellectual disability from the moderate range to the mild range. Neither psychologist testified at any time during the hearings held by the court. ¶ 51 Dr. Froman’s sole report indicates they “went over” defendant’s rights and defendant did not understand them. However, it is unclear what rights the doctor was referencing because the purpose of his examination was to determine whether defendant was fit to stand trial. Moreover, the examination and the report were completed almost a year before defendant’s counsel filed a motion to suppress evidence. ¶ 52 The standards for determining fitness to stand trial and whether a confession is freely and voluntarily made are quite different. People v. Stephens, 2012 IL App (1st) 110296 , ¶ 95, 980 N.E.2d 654 (citing People v. Rockamann, 79 Ill. App. 3d 575 , 580-81, 399 N.E.2d 162 , 166 (1979)). Additionally, and in any event, a trial court is not required to accept the opinion of a psychiatrist or psychologist on whether a defendant understood Miranda warnings. People v. Walker, 2012 IL App (1st) 083655 , ¶ 44, 973 N.E.2d 939 . ¶ 53 In my view, W.C., 167 Ill. 2d 307 , more closely resembles our case than does Braggs. In W.C., the 13-year-old minor was charged with delinquency based upon the offense of - 23 - murder. W.C., 167 Ill. 2d at 311-12 . The evidence showed the minor, accompanied by his mother, was taken to an interview room in a police station where he gave a statement. W.C., 167 Ill. 2d at 313 . According to officers, the minor answered each Miranda query by stating, “I understand.” W.C., 167 Ill. 2d at 313 . ¶ 54 After a pause during the interview, an assistant state’s attorney entered the interview room and repeated Miranda warnings to the minor. The minor eventually signed a written statement in which he made inculpatory admissions. W.C., 167 Ill. 2d at 314-15 . The signed statement included the minor’s acknowledgement he had been advised of and understood his constitutional rights, including his right to a lawyer, and that the assistant state’s attorney was a prosecutor and not his lawyer. W.C., 167 Ill. 2d at 314 . ¶ 55 A hearing was later held to address whether the minor should be prosecuted as an adult. W.C., 167 Ill. 2d at 315 . Evidence at the hearing included a social report, which indicated the minor was in the sixth grade but had received failing grades throughout his education. W.C., 167 Ill. 2d at 315 . Additionally, a school psychologist testified the minor was illiterate and moderately mentally retarded. W.C., 167 Ill. 2d at 315 . According to the psychologist, the minor had an IQ of 48 and was developmentally equivalent to a six- to eight-year-old child. W.C., 167 Ill. 2d at 315 . A court psychologist prepared a psychological examination summary, which also described W.C. as being moderately, mentally retarded with the emotional maturity of a six- to seven-year-old child. W.C., 167 Ill. 2d at 315-16 . The trial court ultimately determined the minor should not be transferred to the criminal division. W.C., 167 Ill. 2d at 316 . ¶ 56 The minor’s counsel then filed a motion to suppress the minor’s incriminating statements, alleging he did not knowingly and intelligently waive his right to remain silent and his right to counsel. W.C., 167 Ill. 2d at 316 . At the suppression hearing, the minor’s evidence from - 24 - the transfer hearing was introduced by stipulation. Additionally, the school psychologist testified it was her opinion the minor could not have understood his Miranda warnings at the time of his arrest. W.C., 167 Ill. 2d at 316 . The State presented the testimony of two police officers who had previously read Miranda warnings to the minor on other occasions. They testified he had indicated he understood the warnings, and, on one occasion, the respondent refrained from answering questions. W.C., 167 Ill. 2d at 316 . The assistant state’s attorney testified she gave the respondent Miranda warnings and also explained the Miranda rights. W.C., 167 Ill. 2d at 316-17 . Finally, the minor “testified by responding in few words, by not remembering and with inconsistency.” W.C., 167 Ill. 2d at 317 . Ultimately, the circuit court denied the motion to suppress, and the respondent was later adjudicated delinquent. W.C., 167 Ill. 2d at 317 . The appellate court affirmed the minor’s delinquency adjudication. W.C., 167 Ill. 2d at 312 . ¶ 57 On appeal to the supreme court, the minor challenged the trial court’s denial of his motion to suppress. W.C., 167 Ill. 2d at 327 . The supreme court extensively cited the school psychologist’s testimony, including her opinion the minor could not have understood the words “ ‘remain,’ ‘against,’ ‘during,’ ‘formal,’ ‘hire[,]’ and would absolutely not have understood the word ‘appointed.’ ” W.C., 167 Ill. 2d at 329-30 . ¶ 58 The supreme court concluded the school psychologist’s testimony, a court psychologist’s summary, and the social investigation report “left little doubt that W.C. did not possess the ability to understand the words and terms contained in standard Miranda warnings.” W.C., 167 Ill. 2d at 335 . Nonetheless, the court found it was “not so clear from this evidence, however, that W.C. would have been unable to understand [the assistant state’s attorney’s] explanation of the Miranda warnings.” W.C., 167 Ill. 2d at 335 . Citing the assistant state’s attorney’s “concrete, nonabstract” terminology, the supreme court concluded W.C., even with his - 25 - “quantifiable intellectual limitations,” may have been able to understand the assistant state’s attorney’s explanation. W.C., 167 Ill. 2d at 335 . The supreme court then stated: “[A]s a court of review, we are not prepared to say that the trial court’s firsthand assessment of W.C. was wanting. A trial court sits in a uniquely advantageous position when evaluating a witness’[s] subjective mental capabilities. Accordingly, we conclude that the circuit court’s determination that W.C.’s waiver was valid was not against the manifest weight of the evidence.” W.C., 167 Ill. 2d at 335 . ¶ 59 In the case before this court, I am not prepared to say the trial court’s assessment of defendant was “wanting.” Defendant appeared before the trial court on several occasions even though he did not testify. The court heard and observed the detective’s testimony and twice reviewed the recording of defendant’s interview. The court observed defendant was read the Miranda warnings on two occasions and the detective twice explained the defendant’s rights to him in different terminology. The court also indicated the interview “was not coercive at all.” ¶ 60 Like the trial court, I have twice reviewed the video recorded interview of defendant in its entirety. Further, I have several times watched the segment of the DVD which includes defendant’s request for a lawyer, the exchanges between the detective and defendant after the request, and the rereading of Miranda rights with a second detective present. Having done so, I agree with the trial court’s assessment of the interview and would find the trial court’s conclusions and findings defendant voluntarily and knowingly waived his Miranda rights are not against the manifest weight of the evidence. ¶ 61 Defendant also argues a Miranda violation occurred when the detective did not cease questioning after defendant asked if he could talk to a lawyer. Defendant maintains the detective’s reference to the state’s attorney and jail amounted to a threat overcoming defendant’s - 26 - will. According to defendant, this “threat” was intended to induce defendant to make an incriminating statement. The threat thus constituted the initiation of further conversation with defendant. In essence, defendant argues the detective’s statement was the equivalent of further interrogation in violation of Miranda. ¶ 62 While this explicit argument was not made to the trial court, the court noted the detective stopped the interrogation and told defendant he would speak with the state’s attorney to determine if defendant should be held in the jail. The court pointed out defendant then said he wanted to talk to the detective. According to the court, “The officer explained to [defendant] that [defendant] asked for an attorney and so the interview had to stop.” However, the court found defendant “insisted he wanted to speak with the officers.” The detective later returned with another officer and again advised defendant of his rights. The court stated that “although [defendant] was unable to tell the officers what [his rights] were in full, he stated he understood [his rights].” The court noted the officers read defendant his rights, asked defendant about his rights, explained those rights to defendant, and defendant provided appropriate answers to the officer’s questions. The court also stated the interview was not very long and the detective did not really ask leading questions. ¶ 63 I construe the trial court’s comments to mean it did consider whether defendant initiated further conversation with the detective after defendant invoked his rights. The trial court determined it was defendant who decided to proceed with the interview, as opposed to having the detective discontinue the interview and contact the state’s attorney to determine if defendant should be jailed. See Woolley, 178 Ill. 2d at 200 (finding the trial judge’s comments showed he was aware that whether the defendant initiated further conversation was a necessary determination). Regardless, well-settled case law does not support defendant’s position the - 27 - detective’s statement constituted further interrogation. Our supreme court has stated: “Under Miranda and its progeny, once an individual states that he wants an attorney, all interrogation must cease until an attorney is present. [Citation.] ‘Interrogation’ is defined as ‘any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” (Emphasis added.) Enoch, 122 Ill. 2d at 193 (quoting Innis, 446 U.S. at 301 ). ¶ 64 This case presents a situation where the transcript of defendant’s interview might suggest the detective’s actions and demeanor were imperious toward defendant after defendant initially asked for a lawyer, especially considering defendant’s intellectual disability. However, the trial court clearly determined that the video recording showed the detective did not bully, coerce, or lie to defendant about what was going to happen. The court apparently determined the detective would have ended the interview had defendant not stated he wanted to speak further with the detective instead of speaking with a lawyer. ¶ 65 Moreover, even if the detective’s statement could conceivably be interpreted as reasonably likely to elicit an incriminating statement, the detective’s statement he would be contacting the state’s attorney about defendant’s incarceration constituted words “attendant to arrest and custody.” See Enoch, 122 Ill. 2d at 193 . Thus, defendant’s argument the detective’s response to defendant’s request for a lawyer violated Miranda necessarily fails. ¶ 66 In conclusion, and in light of all the foregoing, I would affirm the trial court’s judgment denying defendant’s motion for discharge. I would further affirm the trial court’s judgment finding defendant not acquitted on all counts. - 28 -  No. 4-19-0103 Cite as: People v. Kadow, 2021 IL App (4th) 190103 Decision Under Review: Appeal from the Circuit Court of Adams County, No.17-CF-644; the Hon. Robert K. Adrian, Judge, presiding. Attorneys James E. Chadd, Catherine K. Hart, and Joel C. Wessol, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant: Attorneys Gary L. Farha, State’s Attorney, of Quincy (Patrick for Delfino, David J. Robinson, and Lara L. Quivey, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People. - 29 -

2021-01-26 22:02:30.946425+00

https://www.courts.ca.gov/opinions/nonpub/D077949.PDF

Filed 1/26/21 In re I.S. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re I.S., a Person Coming Under the Juvenile Court Law. D077949 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518904) Plaintiff and Respondent, v. L.S., Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Lisa M. Maldonado, Senior Deputy County Counsel, for Plaintiff and Respondent.  I INTRODUCTION In this juvenile dependency proceeding, L.S. (Mother) appeals a dispositional order removing her autistic child I.S. (Child) from her custody and mandating supervised visitation in place of unsupervised visitation. The juvenile court entered the challenged order after sustaining allegations that Mother subjected Child to serious physical harm resulting in numerous bruises on his upper legs. Mother contends substantial evidence did not support the juvenile court’s finding that there is or would be a substantial danger to Child’s physical health, safety, protection, or physical or emotional well-being if he were returned to Mother’s home, as well as the court’s finding that there were no reasonable means by which Child’s physical health could be protected without removing him from Mother’s custody. Further, she claims the court abused its discretion in denying her unsupervised visitation. We affirm the dispositional order. II BACKGROUND A Mother is developmentally disabled and has a history of contacts with the San Diego County Health and Human Services Agency (the Agency). In 2014, shortly after Mother gave birth to Child, the Agency filed a dependency petition out of concern that Mother’s developmental disability rendered her incapable of providing regular care for Child. Mother reunified with Child after completing the service components of her case plan. In 2018, the Agency filed a second dependency petition alleging Mother lacked adequate supervision skills resulting in unexplained lacerations on 2 Child’s body. Child was returned to Mother’s custody at the disposition hearing and jurisdiction was terminated. Shortly after jurisdiction was terminated in the second dependency proceeding, the Agency received reports that Mother slapped, hit, shoved, and yelled at Child on various occasions. During the investigation into these reports, Child admitted Mother hit him. Mother denied she abused Child, but admitted she screamed loudly at him. B On January 31, 2020, Child—who was five years old at the time— reported to his teacher that Mother struck him with a rope. Child exhibited straight and curved bruising on his upper legs. A child abuse expert examined Child, concluded the bruising was “definite evidence of physical abuse,” and opined that returning Child to an unchanged environment put him at risk for further and potentially more serious injury. Child was taken into protective custody at Polinsky Children’s Center (Polinsky) where he disclosed that Mother hit him with her hand and a rope that was later determined to be a vacuum cleaner cord. Child stated he did not disclose the abuse earlier because he “pinky promised” and he “didn’t want to go to foster care again.” Mother denied the allegations of abuse. On February 4, 2020, the Agency filed the dependency petition giving rise to this proceeding. The petition alleged Child suffered, or there was a substantial risk Child would suffer, serious physical harm inflicted by Mother (Welf. & Inst. Code, § 300, subd. (a)).1 On February 5, 2020, the Agency filed a detention report detailing Mother’s prior child welfare history and the witness statements that resulted 1 Further statutory references are to the Welfare and Institutions Code unless otherwise noted. 3 in the filing of the dependency petition. Attached to the detention report were a physician’s report from the child abuse expert who examined Child, photographs of Child’s injuries, and Child’s medical records. At the detention hearing, the juvenile court found a prima facie showing was made that Child was a person described by section 300, subdivision (a). It ordered that Child remain detained at Polinsky, an adjunct, or an approved foster home. It ordered supervised visitation and voluntary services to effectuate reunification. Further, it scheduled a jurisdiction and disposition hearing for March 4, 2020. Prior to the detention hearing, Mother received independent living services, worked with someone at the San Diego Regional Center,2 and was scheduled to attend individual therapy sessions. After the detention hearing, the Agency referred Mother to a child abuse group and parenting education courses. The Agency also requested a Compass Card to assist Mother with her transportation needs. On March 4, 2020, the Agency filed a jurisdiction and disposition report. The report summarized the Agency’s service referrals and a recent interview between the social worker and Mother. During the interview, Mother stated she was employed, did not abuse substances, and received weekly individual therapy. However, she continued to deny the allegations of abuse. According to the report, Mother believed Child was confused, someone had planted stories in Child’s head, and Child said “a lot of things to get attention.” The report expressed concern for Child’s safety in Mother’s home 2 Regional Centers “are community-based nonprofit agencies funded and regulated by the state to serve developmentally disabled persons pursuant to the Lanterman Developmental Disabilities Services (‘LDDS’) Act (§ 4620, et seq.).” (People v. Cuevas (2013) 213 Cal.App.4th 94 , 104, fn. 9.) 4 given Child’s disclosures of abuse, Mother’s denial of abuse, and Mother’s failure to provide a plausible explanation for the bruising sustained by Child. Mother set the matter for trial and a contested jurisdiction and disposition hearing was scheduled for March 26, 2020, and later rescheduled for September 14, 2020 due to the COVID-19 pandemic. On March 6, 2020, Child was placed in a licensed foster home. On May 6, 2020, the Agency filed an addendum report with the juvenile court. The report stated Mother was enrolled in parenting classes. It also stated the social worker had contacted the Regional Center to inquire into whether Mother and Child could participate together in applied behavioral analysis (ABA) services through the Regional Center. It stated the Regional Center was transitioning the case to a new worker and the new worker should be contacted regarding ABA services. On June 25, 2020, the social worker told Mother that Child’s physician recommended psychotropic medication for Child to address challenging behaviors he exhibited. Mother did not agree with the recommendation and stated, “We don’t believe in medication, we don’t need any medication for the rest of his life…. He doesn’t need any medication, he was doing perfectly fine until he was in foster care.” On July 15, 2020, the Agency requested and received court approval for the psychotropic medication. On August 20, 2020, the court conducted a pretrial settlement conference. During the settlement conference, Child’s counsel expressed concerns that Child was not receiving therapy. The social worker in attendance stated that Child currently received weekly behavioral support and the Agency had requested therapy services for Child, but therapy services were unavailable to him due to his autism diagnosis. She stated the Agency also contacted the Regional Center to arrange for ABA services after 5 finding out that therapy services were unavailable, but the Regional Center was unable to provide ABA services to Child due to a recent change in Medi- Cal insurance coverage. The social worker added that she was working on procuring a denial letter from Regional Center to seek therapy services from another provider.3 At or about the date of the settlement conference, Child began to receive therapy services. On September 14, 2020, the Agency filed an addendum report with the juvenile court. The report detailed the Agency’s efforts to obtain therapy services for Child and stated that Child was currently receiving behavioral services and therapy services. It stated Mother was compliant with her parenting education courses. It also stated Mother was participating in weekly visitation sessions through the Family Visitation Center; however, Mother had missed multiple visitation sessions after reporting she was ill. Attached to the addendum report were monthly progress letters from the parenting education course provider, the most recent of which indicated that Mother had completed a module on health and three out of six sessions in a module on home safety. In the assessment and evaluation portion of the addendum report, the Agency stated as follows: “During the life of this case, the mother has continued to deny that she used any excessive or inappropriate discipline with [Child], which is contrary to the evidence reviewed by Child Abuse experts. Unfortunately, the mother demonstrates no insight as to the protective issue that has brought [Child] back to the Agency’s care and the Agency is gravely concerned for the safety of [Child] should he be returned to 3 The social worker apologized that the Agency did not file an addendum report before the pretrial settlement conference and cited court closures and understaffing—presumably related to the COVID-19 pandemic—as the reason no report was filed. 6 the mother’s care. [Child] has expressed several times that he is afraid of the mother and that the mother has used excessive discipline by hitting him with objects. This case is further complicated by the mother’s own developmental diagnosis and the Agency believes that the mother needs further assistance and support in learning how to parent safely.” At the contested jurisdiction and disposition hearing, Mother’s counsel cross-examined the social worker primarily on the topic of the reunification services discussed in the Agency’s reports. The court received into evidence the February 5 detention report, the March 4 jurisdiction and disposition report, the May 6 addendum report, and the September 14 addendum report.4 It also received into evidence progress reports from Mother’s parenting education class, notes from a Child and Family Team meeting, and a report prepared by Mother’s therapist. The therapist’s report stated Mother “denied hitting or harming [Child]” and the therapist “consider[ed] [Mother] to be an adequately reliable informant for current purposes.” The court commended Mother for her engagement in services and opined there was no question she loved Child. However, the court further opined that Child “is a challenging child. He has some special needs, and [Mother] has her own challenges …. [U]nfortunately when [Child] misbehaves, [Mother] has a hard time responding appropriately, and unfortunately she disciplines him physically and excessively.” After making these observations, the court found jurisdiction under section 300, subdivision (a), and declared Child a dependent. It found the Agency made reasonable efforts to prevent or eliminate the need for Child’s removal from Mother’s home and there was clear and convincing evidence Child should 4 The May 6 addendum report was mistakenly referred to as the March 26 addendum report, apparently based on a typographical error in the footer of the addendum report. 7 continue to be removed from Mother’s custody. The court ordered supervised visitation, subject to the discretion of the Agency to permit unsupervised visitation. III DISCUSSION A Substantial Evidence Supported the Removal Order Mother contends there was insufficient evidence supporting the juvenile court’s dispositional order removing Child from her custody. For the reasons discussed below, we disagree. 1 Legal Principles “To remove a child from parental custody, the court must make one of five specified findings by clear and convincing evidence. (§ 361, subd. (c).) One ground for removal is that there is a substantial risk of injury to the child’s physical health, safety, protection or emotional well-being if he or she were returned home, and there are no reasonable means to protect the child [without removing the child]. (§ 361, subd. (c)(1).) ‘ “Clear and convincing” evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]’ [Citation.] Actual harm to a child is not necessary before a child can be removed. ‘Reasonable apprehension stands as an accepted basis for the exercise of state power.’ ” (In re V.L. (2020) 54 Cal.App.5th 147 , 154 (V.L.).) If the juvenile court orders the removal of a minor from the custody of a parent, it must also “make a determination as to whether reasonable efforts 8 were made to prevent or to eliminate the need for removal of the minor ….” (§ 361, subd. (e); see In re D.P. (2020) 44 Cal.App.5th 1058 , 1065 (D.P.).) “A juvenile court’s removal order at a disposition hearing will be affirmed on appeal if it is supported by substantial evidence. [Citation.] ‘Evidence sufficient to support the [juvenile] court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.]’ [Citation.] We consider ‘the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the [challenged order]. [Citation.]’ ” (V.L., supra, 54 Cal.App.5th at p. 154.) “ ‘[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.’ ” (Id. at p. 155, quoting Conservatorship of O.B. (2020) 9 Cal.5th 989 , 995–996.) 2 Application Mother challenges the order removing Child from her custody in two respects. First, she contends the evidence did not support a finding that there is or would be a substantial danger to Child’s physical health, safety, protection, or physical or emotional well-being if Child were returned home. Second, she claims substantial evidence did not support the court’s finding that reasonable efforts were made to prevent or to eliminate the need for Child’s removal from the home. As to the first argument, we conclude there was substantial evidence to support the juvenile court’s finding, under a clear and convincing standard, 9 that Child would be placed in substantial danger if he were returned to Mother’s custody. The Agency’s allegations—which were found true and are not challenged on appeal—were extremely serious in nature. They charged Mother with inflicting excessive physical abuse on Child causing him to suffer numerous bruises on his legs. Child stated on multiple occasions that Mother inflicted these bruises on him. Further, in a report received into evidence, a child abuse expert opined the bruising was “definite evidence of physical abuse” and returning Child to an unchanged environment put him at risk for further and potentially more serious injury. There is no indication in the record that Mother accepted responsibility for the physical abuse. In fact, she denied harming Child and claimed his abuse allegations were stories planted in his head by others or attention- seeking tactics. Mother’s denial of the abuse exacerbates the likelihood that it will recur and that Child will be placed in substantial danger if returned to her care. (In re N.M. (2011) 197 Cal.App.4th 159 , 170 [substantial evidence supported removal order where father “was in denial regarding the reported incidents of physical abuse”]; accord In re Gabriel K. (2012) 203 Cal.App.4th 188 , 197 [“One cannot correct a problem one fails to acknowledge”].) Mother and Child were parties to two prior dependency cases as well, one of which involved allegations that Child suffered physical injuries Mother was unable to explain. And, in the months preceding this case, the Agency received reports that Mother slapped, hit, shoved, and screamed at Child. Mother’s prior dependency proceedings and prior child welfare referrals further supports the juvenile court’s finding of substantial danger. (In re G.C. (2020) 48 Cal.App.5th 257 , 266 [substantial evidence supported removal order, in part, because father had a “history of involvement with child protective services”]; see In re Francisco D. (2014) 230 Cal.App.4th 73 , 81–82 10 [mother’s history of referrals and removals supported jurisdictional finding that there was a substantial risk minor would be abused or neglected].) Finally, as noted in the February 5 detention report, Child is especially “vulnerable due to his age and diagnosis of autism and … in need of appropriate supervision and discipline.” Child’s vulnerable status exacerbates the risk he will suffer additional harm—and more severe harm— if subjected to further physical abuse by Mother. (See In re D.B. (2018) 26 Cal.App.5th 320 , 333 [substantial evidence supported removal order, in part, because “[c]orporal punishment presents a far greater risk of injury—and serious injury—to a toddler than it does to an older teenager”].) Based on the foregoing, we conclude there was ample evidence to support the juvenile court’s findings that Child would be in substantial danger if he were returned home and there were no reasonable means by which his health could be protected short of removal from Mother’s custody. As to Mother’s second argument, we conclude there was substantial evidence supporting the finding that reasonable efforts were made to prevent or eliminate the need for Child’s removal. At the outset of the dependency proceeding, the Agency referred Mother to a parenting education course that included, as one of its components, observations of her interactions with Child. According to the social worker, the observation component was vital because Mother needed to demonstrate an ability to parent safely when Child exhibited challenging behaviors. At the time of the contested hearing, Mother was progressing in the parent education courses but had not yet begun the observation module. The Agency also provided Mother a referral to a child abuse class as a voluntary service. On appeal, Mother faults the Agency for not including the child abuse class in her case plan. However, as the social worker testified, 11 Mother had already completed a child abuse course during a prior dependency proceeding. According to the social worker, the Agency’s staff psychologist believed another mandatory child abuse class would not alone resolve the protective issues underpinning the dependency proceeding; therefore, the Agency elected to designate the class a voluntary service and focus primarily on facilitating hands-on services that would allow Mother to demonstrate her ability to interact safely with Child. For example, the Agency pursued and committed to paying for ABA services in which Mother and Child could both participate, despite running into multiple barriers such as insurance coverage issues and staffing changes at the Regional Center. It provided Mother with transportation assistance. Further, it facilitated visitation through the Visitation Center. The Agency undertook other reasonable efforts to prevent or eliminate the need for Child’s removal as well by facilitating services for Child, whose challenging behaviors sometimes resulted in Mother employing physically-abusive and excessive disciplinary tactics. According to the social worker and the Agency’s reports, the Agency facilitated therapeutic support and weekly, in- home behavioral support for Child. Additionally, at the recommendation of Child’s physician, the Agency sought and obtained court approval for Child to receive psychotropic medication to address Child’s behavioral needs. Mother claims the Agency’s efforts were not reasonable because, in the weeks prior to the contested hearing, the social worker “did not bother to go into her office” to determine whether the Visitation Center had completed narratives of her visitations with Child. Mother’s characterization of the record is not a fair depiction of what transpired. At the hearing, the social worker testified she was teleworking due to the COVID-19 pandemic and, therefore, had not been to her office in two weeks. However, she remained in 12 contact with the Visitation Center through other means and, in fact, learned from these contacts that Mother had cancelled several visits with Child. Mother also claims the Agency’s efforts were not reasonable because the social worker did not communicate frequently enough with Mother’s therapist. However, the social worker testified she did not believe the therapist would be helpful in assisting with reunification because the therapist believed that Mother—who denied abusing Child—was a reliable source of information. In any event, under the totality of the circumstances, the mere fact that the social worker did not consult more regularly with Mother’s therapist does not render the Agency’s efforts unreasonable. Based on the foregoing, we conclude that substantial evidence supported the finding that reasonable efforts were made to prevent or eliminate the need for Child’s removal from Mother’s home. B The Juvenile Court Properly Exercised its Discretion in Ordering Supervised Visitation The juvenile court ordered supervised visitation, subject to the Agency’s discretion to approve unsupervised visits, and ordered the Agency to make efforts to ensure at least two in-person visits per week. Mother claims the court erred in ordering supervised visitation in lieu of unsupervised visitation. She claims it is “highly unlikely that [she] [would] excessively punish [Child] during a visitation” and “[u]nsupervised visits would give [her] the opportunity to implement the parenting techniques she learned over the past months ….” Visitation must be “as frequent as possible, consistent with the well- being of the child.” (§ 362.1, subd. (a)(1)(A).) However, “[t]he power to regulate visits between dependent children and their parents rests with the juvenile court and its visitation orders will not be disturbed on appeal absent 13 an abuse of discretion.” (D.P., supra, 44 Cal.App.5th at p. 1070; see In re R.R. (2010) 187 Cal.App.4th 1264 , 1284 [“One of the dependency court’s responsibilities is to define the rights of the parties to visitation by balancing the rights of the parent with the best interests of the child.”].) For the same reasons Child would be in substantial danger if he were returned to Mother’s custody, we discern no abuse of discretion in the juvenile court’s order requiring supervision during visitation. Further, we note that there is no reason Mother cannot apply any newly-acquired parenting techniques during monitored visitation sessions. In fact, monitoring may permit Mother to demonstrate to others (for example, the social worker) that she has internalized and successfully implemented the parenting strategies and lessons she has learned, thereby increasing the likelihood of her reunification with Child. DISPOSITION The dispositional order is affirmed.5 McCONNELL, P. J. WE CONCUR: HUFFMAN, J. HALLER, J. 5 Mother’s notice of appeal and the statement of appealability reference the juvenile court’s jurisdictional findings. However, Mother makes no reasoned arguments as to the propriety of the jurisdictional findings. Accordingly, we deem Mother’s appeal as to the jurisdictional findings abandoned. 14

2021-01-26 22:02:31.222431+00

https://www.courts.ca.gov/opinions/nonpub/B306402.PDF

Filed 1/26/21 In re I.K. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX IN RE I.K. et al., 2d Juv. No. B306402 (Super. Ct. No. 19JD-00062) Persons Coming Under The (San Luis Obispo County) Juvenile Court Law. _____________________________, SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. A.P., Defendant and Appellant. A.P. (mother) appeals the juvenile court’s order terminating her parental rights to her minor children I.K. and L.K. with a permanent plan of adoption. (Welf. & Inst. Code,1 § 366.26.) Mother also appeals the court’s order removing the boys from their relative placement with their parental grandfather Robert K. (David)2 and his wife Rebecca pursuant to section 387. Mother contends the court erred in removing the children from their relative placement, and that this error also compels the reversal of the order terminating parental rights. We affirm. FACTS AND PROCEDURAL HISTORY Detention, Jurisdiction and Disposition Mother and Robert K., Jr. (father)3 are the natural parents of L.K., born in October 2016, and I.K., born in February 2019. On February 22, 2019, the San Luis Obispo County Department of Social Services (DSS) filed a section 300 petition alleging that mother had tested positive for amphetamine, methamphetamine, and opiates less than three weeks prior to I.K.’s birth. Shortly after I.K’s birth, father tested positive for opiates, methamphetamine, and THC. Both parents have histories of substance abuse. As a result of mother’s longstanding drug problems, her parental rights to another child (J.P.) born in 2010 had been terminated less than a year prior to L.K.’s birth. At the conclusion of the February 25, 2019 detention hearing, I.K. and L.K. were ordered detained and were placed with David and Rebecca at their residence in Paso Robles. Mother and father were both awarded biweekly supervised visits. At the conclusion of the May 8, 2019 jurisdiction and disposition 1All further statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 Although the paternal grandfather’s first name is Robert, he is known and referred to as David. 3 Father is not a party to this appeal. 2 hearing, mother was bypassed for reunification services due to her prior failure to reunify with J.P. Mother was told, however, that reunification services would be reinstated at the three- month interim review hearing if she participated in residential treatment and followed the recommendations from Drug and Alcohol Services. Reunification services were offered for father, who along with mother was set to begin residential treatment the following day in Tarzana. Both parents were awarded a monthly one-hour visit while they were outside San Luis Obispo County. At the interim review hearing, the parties submitted the matter on DSS’s report, which stated that neither parent had maintained sobriety during the three-month period. At the conclusion of the November 6, 2019 six-month review hearing, the juvenile court terminated reunification services for father and set the matter for a section 366.26 hearing on February 26, 2020. § 387 Supplemental Petition and § 388 Petitions; § 366.26 Report On December 6, 2019, Rebecca went to the police station and reported that she had been assaulted by David. Rebecca reported that David became angry with her after she said “[f]uck” in front of the children. David asked her to stop swearing, but she continued doing so. David then threw two cups of water at Rebecca and grabbed her right wrist, causing a large bruise. Rebecca said there had been at least four prior incidents when David slapped or spit on her. That same day, David was arrested at his residence for inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). He was also served with an emergency protective order that prohibited him from entering the family residence. The police left I.K. and L.K. with David’s niece and nephew, who lived in another residence on the same parcel of property. 3  David was released on bail the next morning. He did not notify DSS of his arrest or the protective order. He picked up I.K. and L.K. and took them to his mother Gale’s house in Paso Robles. On December 9, he took the children to L.K.’s appointment with occupational therapist Molly Bivens, who told David that he needed to inform DSS of his arrest and relocation of the children. David did not do so. Instead, he moved himself and the children into a motel in Paso Robles. On December 11, 2019, social workers went to David and Rebecca’s residence. Rebecca reported that she did not know where David and the children were or where they were staying. Rebecca also disclosed that throughout the dependency proceedings mother and father had been living in a separate dwelling on the same parcel of property where David and Rebecca lived. The social worker had been told that mother and father were living with the maternal great-grandmother in Santa Maria. David subsequently admitted that mother and father had been living on the property, even though the social worker had told him they were not allowed to be there. Rebecca also told the social workers that although David and his family had pressured her to agree to an adoption, she “was never really on board with having [L.K. and I.K.] placed in their home.” Rebecca also did not like father and believed she was too old to be raising children. The social workers also visited Gale that same day. Gale admitted knowing where David and the children were staying, but refused to disclose that information because she feared DSS would remove the children from David. Gale eventually agreed to call David on FaceTime while the social workers were present. During his conversation with the social workers, David attempted to broker an agreement that the children would not be 4 removed from his custody if he revealed their whereabouts. After it became clear that no such agreement would be reached, appellant agreed to meet the social workers with the boys at the Oaks Motel in Paso Robles. I.K. and L.K. were detained and placed in foster care. On December 13, 2019, DSS filed a supplemental petition to remove I.K. and L.K. from their relative placement with David and Rebecca pursuant to section 387. The petition alleged that “[David] and Rebecca K[.] have been the relative placement for [L.K. and I.K.]. On December 6, 2019, [David] was arrested for a domestic violence incident between him and his wife, Rebecca []. The minors were presented during the altercation. Law enforcement left the children in the care of [David’s] nephew [T.B.], who resides next door to the family. Rebecca [] did not report this to the previous social worker until December 11, 2019. When [David] was released from jail, he proceeded to take the minors, and was unresponsive to [DSS] regarding the situation and the whereabouts of the minors.” In a February 13, 2020 addendum report, DSS stated “[DSS] is worried that if the children continue to reside in the home, they might continue to be exposed to domestic violence, or left without a caregiver due to [David] being arrested. There is also a concern that the biological parents will continue to be allowed access to the children outside the approved time. [DSS] has requested a Family Finding referral be done to see if there are any other available relatives with whom the boys can be placed. It appears that the relatives that [DSS] is aware of currently all reside on the same property, which has been problematic in the past. [¶] Due to [David’s] recent criminal case, we are unable to place the children back in his care and are 5 currently recommending a reduction in visits in order to move toward a different permanent plan.” In its February 20, 2020 section 366.26 report, DSS recommended that mother and father’s parental rights be terminated “so that [L.K.] and [I.K.] can be adopted when we find a home that is capable and willing to adopt them.” DSS stated that “[t]he boys have been through a lot these past couple of months. It is disappointing that they had to be removed from family members they were accustomed to; however, they appear to be happy, sweet, and resilient children, and we are committed to finding them the best concurrent plan to meet their needs. Although we do not have a home selected yet due to looking and exhausting all family options, we will find an appropriate family for them.” In an April 14, 2020 addendum report, DSS documented its unsuccessful efforts to place I.K. and L.K. with another family member. As to David, DSS reported that “his criminal trial has been continued again, and we do not feel comfortable placing the boys back in his care. [David’s] lack of transparency regarding the domestic violence incident and not being forthcoming about the location of the boys is concerning to [DSS], and we can no longer trust his intentions or reports where the boys are concerned.” DSS added that it “has identified a permanent concurrent plan with a county licensed foster family, and it would like to move forward in transitioning the boys when the COVID- 19 pandemic subsides.” Following numerous continuances, a combined section 366.26 hearing and jurisdictional and dispositional hearing on the section 387 petition were set to begin on June 3, 2020. On June 2, 2020, mother and father each filed modification petitions under section 388 seeking reunification services based 6 on changed circumstances. The evidence mother offered in support of her petition included proof that she had completed a parenting class and had recently enrolled in a methadone maintenance program with monthly randomized testing and weekly counseling. The hearing on the petition was set to be heard in conjunction with the hearing on the section 387 petition and the section 366.26 petition. The Combined Hearing and the Court’s Rulings The combined hearing on the section 387 supplemental petition, the parents’ section 388 petitions, and the section 366.36 selection and implementation was held on Zoom beginning on June 3. The hearing was continued for further testimony on June 8, and again on June 10. Gale, I.K. and L.K.’s 16-year old half-sibling A.K., and David’s cousin M.U. testified that David had been the boys’ primary caretaker, took care of all their needs, and did not have a bad temper. David testified that he was bonded with the boys, attended to all their needs while they were in his care, and considered himself more of a father to them than a grandfather. He claimed that he and Rebecca were getting a divorce and that the December 9th incident was the only time he and Rebecca had fought while the children were present. He admitted throwing a cup of water at Rebecca while the children were present, but denied grabbing her arm or causing a bruise. David also admitted that during most of 2019 mother and father were living in a separate dwelling unit on the same property. When asked why he had not contacted DSS after his release from jail as directed by I.K.’s occupational therapist, David offered that he did not have access to the social worker’s phone number because it was at his residence and he was not allowed to go there. 7  Social worker Jennifer Weissman testified that DSS was not recommending that the boys be placed for adoption with David or another family member. Weissman opined that David was unable to maintain boundaries between mother and father and the children and that service providers had reported their belief that the children were progressing better in their current placement. Father testified to his belief that David had provided a safe, secure, and stable environment for I.K. and L.K. while they were in his care. He reported that he was receiving methadone treatment and had participated in individual counseling. He denied that he and mother had been living on the same parcel of property as David and the boys and claimed that he and mother had instead been living in Santa Maria. Mother testified that she had been clean and sober since April 12, 2020 and was participating in counseling. Both parents expressed their desire to have I.K. and L.K. placed with David. At the conclusion of the combined hearing, the juvenile court denied mother and father’s section 388 petitions based on its findings that neither parent had proved changed circumstances. On the section 366.26 petition, the court found that both children were likely to be adopted and terminated parental rights. On the section 387 supplemental petition, the court found the factual allegations of the petition true by a preponderance of the evidence and concluded that the disposition sought by DSS was supported by both a preponderance of the evidence and clear and convincing evidence. The court recognized the strong emotional bond between the children and their extended family, but noted that “the love and affection and bonding that goes on in a family can also be a circle around which things that aren’t so 8 hot are hidden.” The court concluded that although no particular incident was a “big deal,” the cumulative effect of those incidents led the court to conclude that David was no longer a proper placement for the children. Regarding the domestic violence incident, the court stated: “[W]e know from the research that domestic violence of any sort in the presence of children, and this was in the presence of children because, as it turns out, David’s significant other was cursing in front of the children . . . , and that upset them . . . . [T]hrowing the water, maybe it wasn’t like right in front of [the children] but, you know, kids don’t need [it] to be right in front of them. If they can hear something going on it’s imprinting on them and it’s not good.” The court also faulted David for his behavior after his release from jail. The court noted that “the first thing that David should have done when he was released from custody was to call the social worker.” Instead of doing so, he picked up the children from his niece and nephew’s house, took them to his mother Gale’s house for a few days, then took the children and checked into a motel. When DSS was finally able to make contact with David through Gale, “David said, well, if you’re going to take the kids I’m not going to tell you where the kids are. You’re not going to tell the social worker where the children are? So that’s me, that’s the judge who’s responsible to know where the children are at all times. . . . [T]he social workers are extensions of the court and to have that go on for as long as it did and not be reported.” The court accordingly granted the section 387 supplemental petition. As to disposition, the court stated “I know the children have already been removed, but I will remove them from David and that will conclude my remarks.” 9  DISCUSSION Mother contends the juvenile court erred in granting DSS’s section 387 supplemental petition to remove I.K. and L.K. from their placement with David and Rebecca. DSS responds that mother lacks standing the challenge the court’s removal order and that her claims in any event fail on the merits. We agree with DSS on both points. “Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision.” (In re K.C. (2011) 52 Cal.4th 231 , 236 (K.C.).) “A parent’s appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child’s placement only if the placement order’s reversal advances the parent’s argument against terminating parental rights.” (Id. at p. 238.) In K.C., supra, 52 Cal.4th 231 , the juvenile court denied the grandparents’ section 388 petition seeking the child’s placement with them. At the same hearing, the court terminated parental rights. (Id. at pp. 234-235.) The father asked the court to place the child with the grandparents, but did not “offer[ ] any argument against terminating . . . parental rights,” i.e., he did not argue for the application of any of the exceptions to termination set forth in section 366.26, subdivision (b). (Id. at p. 235.) The father in K.C. filed a notice of appeal from the order denying the grandparents’ section 388 petition and the judgment terminating parental rights. (K.C., supra, 52 Cal.4th at p. 235.) 10 The father did not contend the court erred by terminating his parental rights, that is, that any statutory exception applied. (Id. at pp. 234-237.) Rather, he “limited his argument to the question of K.C.’s placement and contended that, should the Court of Appeal reverse the placement order, the court should also reverse the judgment terminating parental rights to restore the parties to their prior positions. [Citations.] The Court of Appeal, reasoning that father was not aggrieved by the placement decision because it could not be shown to affect his parental rights, dismissed father’s appeal.” (Id. at p. 235.) In affirming, our Supreme Court stated that because the father did not contend the judgment “terminating his parental rights was improper in any respect[,] . . . he ha[d] no remaining, legally cognizable interest in K.C.’s affairs, including his placement . . . .” (Id. at p. 237.) The court concluded the father lacked “standing to appeal the order concerning placement” (id. at p. 234), and the fact he had joined in the grandparents’ section 388 petition and actively litigated it did not change this result (id. at p. 239). In so holding, the court distinguished In re Esperanza C. (2008) 165 Cal.App.4th 1042 (Esperanza C.), and In re H.G. (2006) 146 Cal.App.4th 1 (H.G.). In Esperanza C., the mother filed a section 388 petition after the dispositional hearing, at which the court had set a section 366.26 hearing. (Esperanza C., at pp. 1049-1050.) The section 388 petition sought placement with relatives and review of the child services agency’s denial of a criminal records exemption for one of the relatives. (Id. at p. 1051.) The juvenile court denied the petition and the mother appealed. While the appeal was pending, the juvenile court terminated parental rights, and the court of appeal took judicial notice of that judgment. (Id. at pp. 1051-1052.) In response to the agency’s claim that termination of parental rights had 11 rendered the appeal moot, mother argued that a reversal of the order denying the section 388 petition required reversal of the termination judgment in order to provide effective relief. (Id. at pp. 1054, 1061.) The court of appeal rejected the mootness argument and concluded that reversal was required under the circumstances of the case so the juvenile court could exercise its independent judgment to consider the relatives for placement despite the criminal history. (Esperanza C., supra, 165 Cal.App.4th at pp. 1061-1062.) The court reasoned that until the mother’s parental rights were terminated she retained “a fundamental interest in . . . her child’s companionship, custody, management and care” and “that placement of a child with a relative has the potential to alter the juvenile court’s determination of the child’s best interests and the appropriate permanency plan for that child, and may affect a parent’s interest in his or her legal status with respect to the child.” (Id. at pp. 1053-1054.) In H.G., supra, 146 Cal.App.4th 1 , the parents appealed a section 387 order removing the child from the grandparents’ care and also appealed the immediately ensuing termination of parental rights. (Id. at pp. 4, 8-9.) In reversing, the court of appeal determined that the juvenile court had failed to comply with sections 387 and 361.3. The court further found that the parents had standing because their parental rights had not been terminated when the section 387 order was issued and a section 387 placement decision could affect the decision to terminate parental rights, which the parents had separately challenged in both the juvenile court and on appeal. (Id. at pp. 9-10.) K.C. compels us to conclude that mother lacks standing to challenge the order granting the section 387 supplemental petition. Reversal of that order would not advance any argument 12 mother made against the termination of her parental rights. Mother offered no such argument, and thus effectively acquiesced in the termination and “relinquished the only interest in [I.K. and L.K.] that could render [her] aggrieved by the juvenile court’s order” removing the children from their placement with David and Rebecca. (K.C., supra, 52 Cal.4th at p. 238.) Moreover, on appeal mother does not point to any error in the termination judgment. “‘[T]he mere fact a parent takes a position on a matter at issue in a juvenile dependency case that affects his or her child does not alone constitute a sufficient reason to establish standing to challenge an adverse ruling on it.’” (Id. at p. 239.) Accordingly, mother lacks standing to challenge the section 387 order. (Ibid.) Even if mother had standing, her claims fail on the merits. When a child services agency seeks to change the placement of a dependent child from relative care to a more restrictive placement such as foster care, it must file a supplemental petition under section 387. The petition “shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in [s]ection 361.3.” (§ 387, subd. (b).) During the adjudicatory phase of the hearing on a supplemental petition, the agency has the burden of proving the factual allegations of the petition by a preponderance of the evidence. (H.G., supra, 146 Cal.App.4th at p. 11.) If the agency meets its burden of proof during the adjudicatory phase, the case proceeds to the dispositional phase in which the court determines whether the child needs to be removed from the current relative placement. (Id. at pp. 12, 17-18.) In doing so, the court “follows 13 the procedures for dispositional hearings to determine whether removal is appropriate.” (In re Miguel E. (2004) 120 Cal.App.4th 521 , 542; Cal. Rules of Court, rule 5.565(e)(2).) In the case of an existing relative placement, the determination whether to remove the child is based on the risk of harm to the child if he or she remained in that placement. (H.G., at p. 18.) The agency has the burden of proof on that issue by a preponderance of the evidence. (In re A.O. (2004) 120 Cal.App.4th 1054 , 1061.) We review the juvenile court’s findings at the adjudicatory and dispositional phases of the section 387 hearing for substantial evidence. (H.G., supra, 146 Cal.App.4th at pp. 12- 14.) “We review the evidence in the light most favorable to the trial court’s determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court’s findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. [Citation.]” (Id. at pp. 12-13.) Mother contends the evidence is insufficient to support the petition’s factual allegations (1) that I.K. and L.K. “were present” during the domestic violence incident; and (2) that David was “unresponsive to [DSS]” regarding his arrest and the whereabouts of the children after his release from jail. The record belies these contentions. The children were plainly present when the domestic violence incident occurred. Although mother focuses on whether the children were able to visually observe the incident, it is undisputed that they were present and that David was in the process of feeding them when the incident occurred. As the juvenile court noted, the children could at the 14 very least hear what was happening and “if they can hear something going on it’s imprinting on them and it’s not good.” The record also amply supports the finding that David was “unresponsive” to DSS after his arrest. He took the children without telling DSS where he was going with them. When he was eventually contacted through his mother Gale, he initially refused to disclose the children’s location unless DSS agreed not to remove them from his custody. Mother next contends the juvenile court failed to consider the factors set forth in section 361.34 in issuing its ruling. Although the court did not expressly mention section 361.3 in its ruling, we must presume the court was aware of the law and properly carried out it duties. (In re S.B. (2009) 174 Cal.App.4th 808 , 812-813.) Moreover, the reports and testimony at the 4 These factors include the child’s best interest; the wishes of the relative and child; placement of siblings in the same home; the good moral character of the relative and any other adult living in the home, including whether anyone residing in the home has been responsible for acts of child abuse or neglect; the nature and duration of the child/relative relationship; and the relative’s desire to care for the child and provide permanency. (§ 361.3, subds. (a)(1)-(6).) The court also assesses the relative’s ability to provide a safe, secure, and stable environment for the child; exercise proper and effective care and control of the child; provide a home and the necessities of life to the child; facilitate visitation with the child's other relatives; provide legal permanence; and arrange for appropriate and safe child care. (§ 361.3, subd. (a)(7)(A)-(I).) The court must also consider the safety of the relative’s home. (§ 361.3, subd. (a)(8).) This includes an evaluation of the family's psychosocial history, which includes consideration of physical and mental health, substance abuse, violence, and experience caring for children. (§ 16519, subd. (c).) 15 section 387 hearing addressed the pertinent section 361.3 criteria, and counsel for DSS expressly referred to the statute in arguing that a change of placement was warranted. Finally, appellant contends the court erred in failing to hold a dispositional hearing that was bifurcated from the jurisdictional hearing. But bifurcation in these circumstances is merely discretionary rather than mandatory. (In re Miguel E. (2004) 120 Cal.App.4th 521 , 542.) Because mother did not request a bifurcated hearing below, the issue is forfeited on appeal. (Ibid.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED. PERREN, J. We concur: GILBERT, P.J. YEGAN, J. 16  Charles S. Crandall, Judge Superior Court County of San Luis Obispo ______________________________ Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Rita L. Neal, County Counsel, Timothy McNulty, Deputy County Counsel, for Plaintiff and Respondent.

2021-01-26 22:02:30.216668+00

https://www.courts.ca.gov/opinions/nonpub/B296904.PDF

Filed 1/26/21 Klug v. Green CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE RAYMOND A. KLUG et al., B296904 Plaintiffs and Appellants, Los Angeles County Super. Ct. No. NC060795 v. EDWARD GREEN III et al., Defendants and Respondents. APPEALS from judgments of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Reversed and remanded with directions. Tredway, Lumsdaine & Doyle, Roy J. Jimenez and Brandon L. Fieldsted for Plaintiffs and Appellants. Diem Law and Robin L. Diem for Defendant and Respondent Edward Green III. Andrade Gonzalez, Sean A. Andrade and Henry H. Gonzalez for Defendant and Respondent Derek T. Dee. _______________________________________ 1  INTRODUCTION This case arises from a dispute among partners in a medical practice partnership. The partners are corporations wholly owned by individual physicians in the medical practice. After a disagreement arose concerning several accounting matters, one corporate partner and the physician-owner of that corporation (plaintiffs) sued the partnership, the other corporate partners, and their physician-owners. In addition to stating four substantive causes of action (e.g., breach of the partnership agreement, breach of fiduciary duty), the complaint alleged each corporate partner was the alter ego of its physician-owner. Two defendant physicians brought motions for summary judgment and, in the alternative, summary adjudication as to the four causes of action stated in the complaint. They did not address the issue of alter ego liability, however. The court found in favor of the physicians on the four causes of action, granted their motions for summary judgment, and entered judgments of dismissal. Plaintiffs appeal. Plaintiffs contend the court erred by entering judgments in the physicians’ favor because the alter ego issue remains to be litigated. The physicians claim plaintiffs failed to allege alter ego sufficiently, therefore relieving them of the obligation to litigate the issue on summary judgment. We conclude plaintiffs’ allegations were sufficient and that the court erred in granting summary judgment. Accordingly, we reverse the judgments and remand for further proceedings. 2  FACTS AND PROCEDURAL BACKGROUND 1. The Parties The plaintiffs and appellants are Raymond A. Klug, M.D., Inc., and Raymond A. Klug (plaintiffs). Klug practiced in, and his eponymous corporation was a member of, the Greater Long Beach Orthopaedic Surgical and Medical Group (the partnership). The partnership was dissolved in late 2016. The defendants in this case include the partnership, the other corporate members of the partnership, and the physicians who own those corporations. As pertinent here, the corporate partner defendants include Derek T. Dee M.D., a Professional Corporation (Dee Corporation) and Edward Green III, a Medical Corporation (Green Corporation). The owners of those corporations, physicians Derek T. Dee and Edward Green III, are also named defendants (physician defendants) and are the respondents in this appeal. 2. The Partnership The partnership was governed by an amended partnership agreement dated October 1, 1980. As pertinent here, Section IX of the partnership agreement provides in pertinent part: “Temporary total disability occurs when a Fully Active Partner is suffering from a physical or mental incapacity as certified by a medical physician which prevents him from pursuing and devoting any of his time to the practice of medicine on behalf of the medical partnership. In the event any Fully Active Partner is absent from active practice because of an induction into the military service, or should become temporarily disabled due to illness or injury, as certified by a medical physician, the following terms and conditions shall apply: [¶] A. The partner shall 3 continue to receive 80% of the average 12-month’s income that he is entitled to receive under Paragraph VII above for a period of ninety (90) days. In the ensuing one hundred eighty (180) days, he shall receive one half (1/2) of said average net income that he is entitled to receive under said Paragraph VIII. Thereafter, he shall not be entitled to receive any income until such time as he is again working full time in the partnership medical practice.” In May 2016, Klug informed the partnership that he had been diagnosed with lymphoma and was temporarily totally disabled within the meaning of the partnership agreement. 3. The Primary Dispute The partnership made several payments to plaintiffs between June and August of 2016. The parties did not agree, however, on whether the payments were properly characterized as disability payments or partnership distributions. Plaintiffs also objected to the redistribution of overhead expenses in a manner benefitting certain partners, the manner in which partnership meetings were held, and the withholding of partnership financial information. 4. The Complaint On September 2, 2016, plaintiffs filed the present suit against the partnership, the other corporate partners, and the other individual physicians who owned the corporate partners. A few weeks later, a majority of the corporate partners voted to dissolve the partnership effective September 30, 2016. The complaint sets forth four causes of action: breach of contract (i.e., the partnership agreement), breach of fiduciary duty, dissolution of the partnership, and accounting. Plaintiffs allege the defendants breached the partnership agreement as 4 well as their fiduciary duties to plaintiffs by failing to pay them the full amount of disability payments required under the partnership agreement, reallocating the partnership overhead in a manner detrimental to plaintiffs, and refusing to disclose partnership financial information upon request. Plaintiffs also sought to dissolve the partnership and requested an accounting of the partnership’s finances. In addition, and as pertinent here, the complaint includes the following general allegation: “At all times mentioned, Defendant corporations were wholly owned and controlled by the individual doctors for which they are named. At all times mentioned, there was and is a unity of interest and ownership which existed between the Doctors and their individual corporations, such that the separateness of the individual and the corporations never existed. Adherence to such fiction will result in fraud and inequity upon those persons that seek relief from the corporations. By reason thereof, the corporate veil of the individual medical corporations should be set aside so that the partner doctors may be held personally responsible and accountable for all acts and transactions of [the Partnership.]” Dee and Dee Corporation answered the complaint, as did Green and Green Corporation. 5 5. Summary Judgment Proceedings1 5.1. Green’s Motion Green and Green Corporation (Green defendants) jointly filed a motion for summary judgment or, in the alternative, summary adjudication addressing plaintiffs’ four causes of action. As pertinent here, the Green defendants contended that plaintiffs received all the disability payments owed under the partnership agreement. Accordingly, no breach of the partnership agreement or breach of fiduciary duty occurred in that regard. As to the reallocation of overhead expenses, the Green defendants noted that the complaint alleged Dee acted alone in that respect and plaintiffs confirmed that position in their discovery responses. Similarly, and with respect to the failure to provide requested financial information to plaintiffs, the Green defendants observed that plaintiffs had not alleged, nor had they indicated in their discovery responses, that they had requested any financial information from the Green defendants or that the Green defendants kept and maintained the partnership’s financial records. Finally, the Green defendants asserted that the plaintiffs’ causes of action for dissolution and accounting were moot because the partnership had been dissolved, had provided an accounting, and had made its final partnership distributions. 1 The issue presented in this appeal does not require us to address the correctness of the trial court’s adjudication of the complaint’s four causes of action. In the interest of brevity, we discuss the substantive claims only insofar as is necessary to provide context for our analysis of the alter ego issue. 6  Plaintiffs opposed the motion. Mainly, plaintiffs focused on the interpretation of the partnership agreement and the proper characterization of payments made by the partnership to plaintiffs after Klug became temporarily disabled. The parties appeared before the court and argued the case. After taking the matter under submission, the court issued its ruling. Although the Green defendants had not advanced distinct arguments as between themselves, the trial court addressed the potential liability of Green and Green Corporation separately. The court found that Green was not a partner in his individual capacity and, therefore, could not be liable for breach of either the partnership agreement or any fiduciary duty attendant to the partnership. The court further found that the dissolution claim was moot because the partnership had already been dissolved. The court also concluded that Green, individually, did not owe plaintiffs any accounting on behalf of the partnership.2 After addressing each of the plaintiffs’ four causes of action, the court granted Green’s motion for summary judgment. After the Green defendants gave notice of the court’s ruling, plaintiffs objected to the entry of a judgment of dismissal in favor of Green. Plaintiffs noted that the operative complaint alleged alter ego liability, but Green had not addressed the issue 2The court found triable issues of material fact existed regarding Green Corporation’s liability on the causes of action for breach of contract and breach of fiduciary duty. But the court granted Green Corporation’s motion for summary adjudication on the two remaining causes of action. The court found the dissolution claim to be moot, as noted. And with respect to the accounting claim, the court concluded that the partnership might owe plaintiffs an accounting, but Green Corporation did not. 7 in his motion. Expressing concern that a judgment of dismissal could bar them from litigating the alter ego issue in the future, plaintiffs asked the court to refrain from entering judgment in favor of Green. The record does not reveal whether or how the court addressed plaintiffs’ objection. 5.2. Dee’s Motion Dee and Dee Corporation (Dee defendants) jointly filed a motion for summary judgment or, in the alternative, summary adjudication addressing plaintiffs’ four causes of action as well as plaintiffs’ claim for punitive damages. As pertinent here, the Dee defendants contended that plaintiffs received all the disability payments owed under the partnership agreement. Accordingly, no breach of the partnership agreement or breach of fiduciary duty occurred in that regard. As to the reallocation of overhead expenses, the Dee defendants asserted the decision was made in accordance with the partnership agreement by a vote of the partners. With respect to the failure to provide financial information to plaintiffs, the Dee defendants observed that plaintiffs had not requested any financial information from them. The Dee defendants also asserted that plaintiffs’ causes of action for dissolution and accounting were moot because the partnership had been dissolved, had provided an accounting, and had made its final partnership distributions. Finally, the Dee defendants argued that the allegations set forth in the complaint did not support plaintiffs’ claim for punitive damages. Plaintiffs opposed the motion. Again, plaintiffs focused substantially on the interpretation of the partnership agreement and the proper characterization of payments made by the partnership to plaintiffs after Klug became temporarily disabled. Plaintiffs also claimed triable issues of material fact existed 8 regarding the partnership decision-making process, the reallocation of overhead expenses, punitive damages, and the causes of action for dissolution and accounting. Finally, plaintiffs argued that triable issues of material fact existed regarding their alter ego theory—a basis for liability the Dee defendants did not address in their motion. Plaintiffs asserted that “[Dee] failed to observe necessary corporate formalities[,]” “the corporation was just a shell[,]” and that Dee “was the sole employee of the corporation, its sole shareholder, [its] only director, and all funds held in the corporation were presumably transferred to him directly.” Plaintiffs asserted in their separate statement the following additional fact: “Plaintiff has substantial evidence showing that alter-ego liability will apply in this case, as [Dee Corporation] was underfunded, had no other shareholders, no other employees and only paid … Dee the individual. As such, the actions taken by [Dee] Corporation were in fact taken by [Dee] the individual, and any judgment against the [Dee] Corporation should be attributed to the individual.” Plaintiffs included a citation to the following portion of Dee’s deposition: “Q: When you were employed by [the partnership], did you operate under any – any other corporation or were you acting individually? “A: I had a corporation. “Q: And what was the name of that corporation? “A: Derek T. Dee, MD, A Professional Corporation. “Q: So you had the same name? “A: No. “Q: What’s the difference in the name? I didn’t catch that. “A: The middle initial is T versus Tan. 9 “Q: I see. And when was that corporation established? “A: Sometime around 2001. “Q: Shortly after joining [the partnership]? “A: It was – I believe it was established before that. “Q: What was the reason for starting the new corporation, the Derek Tan Dee, Medical – or Professional Corporation? “A: I was starting a new practice. “Q: Going to the Derek T. Dee, MD, A Professional Corporation, did it have any employees other than yourself? “A: No. “Q: And the Derek T. Dee corporation was – was the partner in [the partnership]? “A: Correct. “Q: At the time that you were with [the partnership], did you work for any other entities besides the Derek T. Dee, A Professional Corporation? “A: No. … “Q: Did the Derek T. Dee, MD, A Professional Corporation do any work outside of the … partnership from 2001 until 2016? … “A: No, it did not. “Q: During the period of 2001 to 2016 did – did your corporation have regular shareholder meetings? “A: Yes, it did. “Q: How often did it meet, the shareholders? “A: Annually. “Q: And who were the shareholders of the corporation from 2001 to 2016? “A: Myself. 10 “Q: And did it have a board of directors? “A: I’m not certain. “Q: Did your wife have any ownership in the Derek T. Dee corporation? “A: No. “Q: What was the purpose of setting up the Derek T. Dee corporation? … “A: That was what was advised to me. “Q: Who advised you to set it up? “A: I don’t recall.” In reply, the Dee defendants argued that Dee was not a partner in the partnership and therefore could not be personally liable for any breach of contract or breach of fiduciary duty. Further, they contended, plaintiffs’ attempt to hold Dee liable under the alter ego theory failed because they did not produce sufficient evidence to create a triable issue of fact. The parties appeared before the court and argued the case. After taking the matter under submission, the court issued its ruling. Consistent with its ruling on the Green defendants’ motion, the court found that Dee was not a partner in his individual capacity and, therefore, could not be liable for breach of either the partnership agreement or any fiduciary duty attendant to the partnership. The court also rejected plaintiffs’ alter ego claim, finding the deposition excerpts submitted to the court were insufficient to create a triable issue of material fact on that question. As before, the court found that the dissolution claim was moot because the partnership had already been dissolved. The court also concluded that Dee, individually, did not 11 owe plaintiffs any accounting on behalf of the partnership. The court then granted Dee’s motion for summary judgment.3 6. Judgments of Dismissal and the Appeals The court entered a judgment of dismissal in favor of Green on February 11, 2019. Plaintiffs timely appealed. The court also entered a judgment of dismissal in favor of Dee on July 1, 2019. Plaintiffs timely appealed. At the parties’ request, we consolidated the appeals for all purposes. DISCUSSION Because plaintiffs do not challenge the court’s summary adjudication of the complaint’s four substantive causes of action, we consider only whether the court erred by granting summary judgment and entering judgments of dismissal in favor of the physician defendants. Plaintiffs contend they adequately pleaded an alter ego theory of liability against the physician defendants and, because that issue was unaddressed in the motions for summary judgment, the court erred in dismissing the physician defendants from the case. The physician defendants argue the 3The court found triable issues of material fact existed regarding Dee Corporation’s liability on the causes of action for breach of contract and breach of fiduciary duty. But the court granted Dee Corporation’s motion for summary adjudication on the two remaining causes of action. The court found the dissolution claim to be moot, as noted. And with respect to the accounting claim, the court concluded that the partnership might owe plaintiffs an accounting, but Dee Corporation did not. Finally, the court found no triable issue of material fact existed regarding punitive damages. 12 theory was not adequately pleaded and, in any event, no evidence supports liability under an alter ego theory. 1. Scope and Standard of Review The applicable standard of review of a ruling on a motion for summary judgment is well established. “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826 , 843 (Aguilar).) The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra , 25 Cal.4th at p. 850; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must “ ‘show[ ] that one or more elements of the cause of action ... cannot be established’ by the plaintiff. [Citation.]” (Aguilar, at p. 853.) A defendant meets its burden by presenting affirmative evidence that negates an essential element of a plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317 , 334 (Guz).) Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” supporting an essential element of its claim. (Aguilar, at p. 855.) On appeal from a summary judgment, we review the record de novo and independently determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763 , 767; Guz, supra , 24 Cal.4th at p. 334.) We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment. (Saelzler, at p. 768.) 13  In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Oakland Raiders v. National Football League (2005) 131 Cal. App. 4th 621 , 629–630.) We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Id. at p. 630.) 2. The court erred by granting the physician defendants’ motions for summary judgment. 2.1. The complaint adequately pleads the alter ego theory of liability. The pleadings play a key role in a summary judgment motion. Our Supreme Court has explained: “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal. 4th 1244 , 1250; Hutton v. Fidelity National Title Co. (2013) 213 Cal. App. 4th 486 , 493.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate the plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Conroy, at pp. 1254–1255; see Melican v. Regents of University of California (2007) 151 Cal. App. 4th 168 , 182 [“We do 14 not require [a defendant] to negate elements of causes of action plaintiffs never pleaded”].) The physician defendants contend plaintiffs failed to plead the alter ego theory adequately in their complaint and, therefore, they had no obligation to address the theory in their motions for summary judgment. Plaintiffs did not set forth their alter ego theory as an independent cause of action. But although that type of pleading is allowed, it is not required. Several procedural vehicles are available to a party asserting alter ego liability. “ ‘The first option is to sue the alter ego directly in an action for breach of contract … . Another is to first obtain a judgment for breach of contract against the signatories to the contract, followed by a motion to amend the judgment to add the alter egos as defendants. [Citations.] Still another is, after obtaining a judgment against the signatories, to institute an independent action against the alter egos … . These different procedural vehicles, however, are identical in substance: in all three, the proof of alter ego is the same.’ [Citation.]” (347 Group, Inc. v. Philip Hawkins Architect, Inc. (2020) 58 Cal. App. 5th 209 , 214.) In any event, plaintiffs’ complaint does include an allegation relating to alter ego liability. The alter ego theory has two basic elements. “[T]o prevail in a cause of action against individual defendants based upon disregard of the corporate form, the plaintiff must plead and prove such a unity of interest and ownership that the separate personalities of the corporation and the individuals do not exist, and that an inequity will result if the corporate entity is treated as the sole actor.” (Vasey v. California Dance Co. (1977) 70 Cal. App. 3d 742 , 749 (Vasey); Leek v. Cooper (2011) 194 Cal. App. 4th 399 , 415 (Leek).) 15  Plaintiffs’ complaint alleges both required elements. As noted ante, plaintiffs alleged with respect to the first element that the “[d]efendant corporations were wholly owned and controlled” by the physician defendants and that “there was and is a unity of interest and ownership which existed between the Doctors and their individual corporations, such that the separateness of the individual and the corporations never existed.” As to the second element, plaintiffs allege that denying the unity of interest between the physicians and their corporations “will result in fraud and inequity” for plaintiffs. And although plaintiffs did not use the words “alter ego,” they were not required to do so. (See Leek, supra , 194 Cal.App.4th at p. 415 [“To recover on an alter ego theory, a plaintiff need not use the words ‘alter ego,’ but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor”].) Plaintiffs did, however, reference piercing the corporate veil, stating “the corporate veil of the individual medical corporations should be set aside so that the partner doctors may be held personally responsible and accountable for all acts and transactions of [the partnership].” Citing Vasey, the physician defendants contend these allegations are inadequate. In Vasey, individual and corporate defendants defaulted in an unlawful detainer action. The court entered default judgments against all defendants, but the liability of the individual defendants was predicated solely on an alter ego theory. On appeal, the individual defendants asserted that the complaint did not properly plead the alter ego theory and the Court of Appeal agreed. (Vasey, supra , 70 Cal.App.3d at pp. 748–749.) 16  The physician defendants argue that plaintiffs’ alter ego allegations mirror the allegations found to be inadequate in Vasey. They are wrong. The problem with the complaint in Vasey was that the allegations only addressed one of the two elements required to establish alter ego liability. (Vasey, supra , 70 Cal.App.3d at p. 749.) Specifically, “the complaint alleged that any individuality and separateness of the corporation had ceased and that CDC was the alter ego of the individual defendants.” (Id. at p. 745.) The complaint made no mention of the second element—inequity resulting from the recognition of the corporate form. (Id. at p. 749.) As we have said, plaintiffs’ allegations address both required elements. In addition, the physician defendants contend that plaintiffs’ allegations are bare conclusory allegations rather than facts. To support their position, the physician defendants quote extensively from First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal. App. 2d 910 , in which the plaintiff’s allegations were indeed more comprehensive that those at issue here. But the holding there—that the allegations of that complaint were sufficient to withstand a demurrer—does not assist the physician defendants here. Bookasta did not claim to set a minimum standard for pleading alter ego liability nor has it been construed in that manner by other courts. Plaintiffs’ allegations, while not particularly detailed, set forth both required elements for alter ego liability. A plaintiff is not required to set forth every fact that may ultimately be proved. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal. App. 4th 221 , 236 [plaintiff asserting alter ego theory required to allege only “ ‘ultimate rather than evidentiary facts’ ”].) The issue is whether “the allegations were adequate to 17 apprise [a defendant] that he was being held accountable as an alter ego.” ( Leek, supra , 194 Cal.App.4th at p. 412.) Pleadings must be construed liberally and with a view to substantial justice. (Code Civ. Proc., § 452.) And, as here, “ ‘less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff … .’ ” (Rutherford Holdings, at p. 236.) In sum, we conclude plaintiffs’ complaint sufficiently apprised the physician defendants that alter ego liability was at issue. 2.2. Because the physician defendants did not address the alter ego theory in their motions, summary judgment was inappropriate. At this point, we would typically examine the defendant’s motion and supporting evidence to determine whether the defendant made a prima facie showing of the nonexistence of a triable issue of material fact, thereby shifting the burden to the plaintiff to make a prima facie showing that a triable issue of material fact exists. (See generally Aguilar, supra , 25 Cal.4th at p. 850; Code Civ. Proc., § 437c, subd. (p)(2).) Here, however, neither physician defendant addressed the alter ego theory of liability in his motion for summary judgment and/or adjudication.4 4Dee asserts that in ruling on the summary judgment motion, the trial court “found that Dr. Dee presented evidence in his moving papers that raised the alter ego issue.” Having read both the trial court’s ruling and Dee’s moving papers, we conclude the court erred. In any event, 18  It is well-established that “[w]here the evidence presented by defendant does not meet its burden, ‘the [summary judgment] motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.’ [Citation.] Accordingly, a plaintiff has no evidentiary burden on summary judgment unless and until the moving defendant first meets its initial burden. [Citation.]” (Dix v. Live Nation Entertainment, Inc. (2020) 56 Cal. App. 5th 590 , 604–605.) Plaintiffs thus assert that the physician defendants’ failure to address alter ego liability precludes summary judgment in their favor. We agree. The physician defendants, however, offer several arguments in support of the court’s summary judgment ruling. We address them briefly. First, the physician defendants note that a court has the inherent power to grant summary judgment on a ground not explicitly tendered by the moving party, so long as the opposing party has notice and the opportunity to respond. And they submit that plaintiffs had both notice and an opportunity to address the alter ego issue here. The principle advanced in the cases cited by the physician defendants is inapplicable here, however. In Juge v. County of Sacramento (1993) 12 Cal. App. 4th 59 (Juge), for example, the defendant moved for summary judgment on a negligence claim. The defendant did not explicitly argue the absence of causation, but the undisputed evidence established that the defendant’s alleged negligent act did not cause the plaintiff’s injury. The court of appeal held that that the trial court we are not bound by that finding in light of the applicable standard of review. 19 properly granted summary judgment due to the absence of causation, explaining that the court has the inherent power to grant summary judgment on a ground not explicitly tendered by the moving party “when the parties’ separate statements of material facts and the evidence in support thereof demonstrate the absence of a triable issue of material fact put in issue by the pleadings and negate the opponent’s claim as a matter of law.” (Id. at p. 70.) Juge and the other similar cases cited by the physician defendants are inapposite. They address situations in which a defendant moving for summary judgment has attacked a cause of action but may not have identified the precise legal argument later adopted by the court or may not have produced sufficient evidence to establish lack of merit. (See Juge, supra , 12 Cal.App.4th at pp. 71–72 [defendant moved for summary judgment on negligence claim but did not specifically assert absence of causation]; see also Bacon v. Southern Cal. Edison Co. (1997) 53 Cal. App. 4th 854 , 857–858 [defendant moved for summary judgment asserting immunity from liability without addressing statutory exceptions]; Villa v. McFerren (1995) 35 Cal. App. 4th 733 , 750–751 [defendant moving for summary judgment on civil conspiracy claim failed to put forth sufficient evidence to establish lack of merit but plaintiff’s opposition evidence could be considered]; Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242 , 1268, fn. 14 [same, citing Villa v. McFerren].) These cases, however, do not address—or apply to— the situation presented here, i.e., where a court purportedly resolves a claim set forth in the plaintiff’s complaint, but which was not addressed by the defendant’s motion for summary judgment. 20  Second, Dee claims that plaintiffs submitted the alter ego issue for decision by the court by addressing it in their opposition to his motion for summary judgment.5 Dee again cites Villa v. McFerren, supra , which, as noted, considered whether evidence submitted in support of a plaintiff’s opposition to a motion for summary judgment could cure a defendant’s failure to meet its initial burden to establish the absence of any triable issue of material fact. The other case cited by Dee, Lowe v. California League of Prof. Baseball (1997) 56 Cal. App. 4th 112 , addresses the same issue, i.e., the quantum of proof offered by the defendant and the correctness of using evidence proffered by the plaintiff to cure any defect. But the issue here is not that the physician defendants attempted but failed to show that plaintiffs’ alter ego claim lacked merit in their motions for summary judgment. As we have said, the problem is that the physician defendants entirely failed to address the issue. As a result, plaintiffs were not required to address the issue either. 5As noted, plaintiffs did not address the alter ego issue in their opposition to Green’s motion for summary judgment. 21  DISPOSITION The judgments are reversed. The matter is remanded with instructions to the trial court to vacate its orders granting the motions for summary judgment by Derek T. Dee and Edward Green III and enter new orders denying their motions for summary judgment. Plaintiffs Raymond A. Klug and Raymond A. Klug, M.D., a Medical Corporation shall recover their costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS LAVIN, Acting P. J. WE CONCUR: EGERTON, J. DHANIDINA, J. 22

2021-01-26 22:02:28.596735+00

https://www.courts.ca.gov/opinions/nonpub/B301559.PDF

Filed 1/26/21 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX THE PEOPLE, 2d Crim. No. B301559 (Super. Ct. No. 1501098) Plaintiff and Respondent, (Santa Barbara County) v. FLORINDA CAMARILLO HERNANDEZ, Defendant and Appellant. Appellant Florinda Camarillo Hernandez caused a head-on collision while driving intoxicated. Appellant and the two occupants of the other car were seriously injured and had to be hospitalized. Appellant’s two-year-old daughter, who was in the backseat, suffered a shoulder laceration. Appellant’s blood alcohol content (BAC) was .18 percent. She did not remember the collision. Appellant was charged with felony driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 1); driving with a .08 percent BAC causing injury (id., subd. (b); count 2) and child abuse (Pen. Code, § 273A, subd. (a);1 count 3). As to counts 1 and 2, it was alleged that appellant personally inflicted great bodily injury (GBI) on two victims (§ 12022.7, subd. (a); Veh. Code, § 23558), and that the offenses were violent felonies (§ 667.5, subd. (c)(8)). Count 2 further alleged appellant had a BAC of .15 percent or higher (Veh. Code, § 23578). Appellant pled no contest to the charges and admitted the special allegations. She was sentenced to five years’ probation and ordered to serve 365 days in county jail. Nearly three years later, on August 25, 2018, appellant was again arrested for driving under the influence of alcohol. Because she had violated her probation terms, the trial court ordered a 90-day evaluation by a prison diagnostic facility pursuant to section 1203.03. Based on that evaluation, the warden recommended a prison sentence, finding appellant “does present an unreasonable burden and or threat to the safety of the community.” The court subsequently revoked probation and sentenced appellant to seven years, four months in state prison, consisting of the lower term of 16 months on count 1, plus three years for each of the two GBI enhancements. The sentence on count 2 was stayed and the sentence on count 3 was ordered to run concurrently with the sentence on count 1. Appellant contends the trial court abused its discretion by revoking her probation and imposing a prison sentence. She also claims the court erred by not striking one of the GBI enhancements. We affirm. 1All further statutory references are to the Penal Code unless otherwise stated. 2  FACTUAL AND PROCEDURAL BACKGROUND At 2:00 a.m. on November 10, 2015, appellant was driving at an excessive speed in the rain without headlights. She drove up onto a curb and then veered across the double yellow lines into oncoming traffic. A driver traveling the other way was unable to avoid the head-on collision. Appellant’s blood alcohol content (BAC) was .18 percent. All four occupants of the vehicles were injured. After the collision, appellant successfully completed an outpatient substance abuse treatment program, and her daughter was returned to her care in July 2016. Appellant was required to submit to regular testing and to attend weekly Alcoholics Anonymous meetings. The prosecution sought a prison sentence at the 2017 sentencing hearing. The trial court granted probation but warned appellant that if she ever violated probation, particularly due to drinking alcohol, she “could land . . . in state prison in a heartbeat.” Appellant said she understood. At 1:00 a.m. on August 25, 2018, Police Officer Frank Medina pulled over a car that did not have rear lights and had a towel over the license plate. Appellant was in the driver’s seat and her daughter was in the backseat. A man was in the front passenger seat. When the officer asked appellant if she had been drinking, appellant said she had not but then admitted having a few beers. She was arrested after failing three field sobriety tests. Her BAC was between .15 percent and .17 percent. Until that violation, appellant had satisfactorily performed all probation conditions and was classified as a low supervision case. Appellant testified that she started drinking heavily after high school, which made her “happy for the first time.” She quit 3 drinking after the 2015 offense and did not drink alcohol again until the night of her second arrest. She drank that night because she found inappropriate videos of her boyfriend on his phone. When asked if she regretted that decision, she answered, “If I could go back to that time I would still have the same reaction. I would still drink. There’s no other way to think.” The trial court sympathized with appellant’s life circumstances but noted “that doesn’t excuse somebody from putting other people’s lives at risk.” The court emphasized that everyone in the 2015 collision was injured and that appellant’s BAC on both occasions was approximately .17 percent. The trial court sentenced appellant to prison because (1) her 2015 offense was “incredibly serious” and caused injuries from which the victims “may never recover”; (2) appellant admitted that if she could go back in time, she would still drink alcohol in response to seeing the videos on her boyfriend’s phone; (3) appellant “flat out violated the terms of [her] probation”; (4) the court could not trust appellant not to drink alcohol and (5) the court would feel responsible if appellant drove again while intoxicated and killed someone. Appellant asked for a second chance. The court explained she already had been given that chance and that “[i]n these kinds of situations the court is not going to give another opportunity for somebody else to get hurt.” DISCUSSION Revocation of Probation “[S]ection 1203.2, subdivision (a) authorizes a trial court to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of 4 the conditions of his or her probation . . . .’” (People v. Jackson (2005) 134 Cal. App. 4th 929 , 935.) “‘As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal. App. 4th 978 , 981- 982.) “‘The discretion of the [trial] court to revoke probation is analogous to its power to grant the probation, and the court’s discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]’ [Citation.] ‘Many times circumstances not warranting a conviction may fully justify a court in revoking probation granted on a prior offense. [Citation.]’ [Citation.] ‘“[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .”’ [Citation.] And the burden of demonstrating an abuse of the trial court’s discretion rests squarely on the defendant.” (People v. Urke (2011) 197 Cal. App. 4th 766 , 773.) Appellant contends the trial court abused its discretion by revoking probation and sentencing her to state prison. She concedes her offenses do not qualify for Proposition 36 relief but maintains California’s increasing use of diversion and rehabilitative programs to treat defendants with addiction and mental illness required reinstatement of probation. We disagree. This type of rehabilitative approach is geared toward defendants who committed drug possession crimes or other less serious 5 offenses. (See § 1210.1, subd. (a); People v. Goldberg (2003) 105 Cal. App. 4th 1202 , 1206-1207.) As the People point out, appellant gave the trial court little choice but to impose a prison sentence after she seriously injured multiple people, including herself, in the 2015 collision and then became intoxicated again which resulted in a second arrest. Appellant claims she was not driving the car, and her passenger did come forward and say he was driving. Even if that is true, however, appellant had a BAC of .17 percent and her young daughter was with her in the car at 1:00 a.m. Appellant’s probation terms prohibited her from “drink[ing] or possess[ing] any alcoholic beverages.” The trial court was particularly troubled by appellant’s admission that even if she could go back to that night, she would still drink under the circumstances. The court stated: “So what does that tell the court? Her daughter doesn’t matter. People in the community don’t matter. All that matters is how she feels and how she deals with her feelings. And that tells the story.” It was well within the trial court’s discretion to decline to risk public safety by reinstating probation. Appellant had been given an opportunity to avoid prison but demonstrated she could not or would not rehabilitate on probation and that prison was the only viable alternative. (See People v. Kingston (2019) 41 Cal. App. 5th 272 , 278 [“When the record reveals that a defendant’s violation of the terms of probation was the result of irresponsible or willful behavior, termination of probation and imposition of a prison sentence is no abuse of discretion”].) GBI Enhancement Defense counsel asked the trial court to strike one of the three-year GBI enhancements under section 1385. Counsel noted 6 appellant has a young daughter, was working full time before her second arrest and had abided by her probation terms prior to that arrest. Appellant argues the denial of this request was an abuse of discretion. Section 1385 authorizes a trial court to strike or dismiss a GBI enhancement or “the additional punishment for that enhancement in furtherance of justice. . . .” (Id., subd. (b)(1); see People v. Flores (2005) 129 Cal. App. 4th 174 , 178.) The decision not to strike an enhancement is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal. 4th 367 , 373 (Carmony).) In declining to strike one of the GBI enhancements, the trial court determined such action “would discount the injury to the other victim completely.” Appellant contends the trial court failed to weigh all the appropriate factors in assessing whether to strike the enhancement. These factors include the defendant’s background, character and prospects, the prior conviction and the nature and circumstances of the present offense. (People v. S.M. (2017) 9 Cal. App. 5th 210 , 220.) The record reflects, however, that the court considered these factors in electing to impose the low term on count 1. The injuries to the two victims were serious and required hospitalization. The driver suffered a lower leg injury and was unable to walk. The passenger was unconscious and halfway out the door when officers arrived. Upon arrival at the hospital, she was admitted to the intensive care unit. She “suffered injury to her head which has resulted in migraines and memory loss. She now has back problems which will require surgery [per the doctor]. She has nerve damage to her right[-]hand fingers . . . , [and] is now disabled as she cannot retain information and has to be heavily sedated due to the migraines.” 7  Given the seriousness of the victims’ injuries, and the likelihood that one of them will never fully recover, we cannot conclude the court’s “decision is so irrational and arbitrary that no reasonable person could agree with it.” (Carmony, supra , 33 Cal.4th at p. 377.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED. PERREN, J. We concur: GILBERT, P. J. TANGEMAN, J. 8  James K. Voysey, Judge Superior Court County of Santa Barbara ______________________________ Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, William H. Shin and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. 9

2021-01-26 22:02:29.6147+00

https://www.courts.ca.gov/opinions/nonpub/D077034.PDF

Filed 1/26/21 P. v. Castro CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D077034 Plaintiff and Respondent, v. (Super. Ct. No. JCF001942) LEONARDO CASTRO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Imperial County, Monica Lepe-Negrete, Judge. Affirmed. Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.  A jury convicted Leonardo Castro with committing a forcible lewd act upon a child under 14 years old. (Pen. Code,1 § 288, subd. (b)(1).) The court sentenced Castro to the low term of five years in prison and imposed various fines and fees. The court also ordered Castro to register as a sex offender pursuant to section 290 and to pay a restitution fine and court assessments. (§ 290.) Castro appeals, contending his trial counsel was ineffective for not objecting to the admission of statements Castro made to law enforcement, depriving him of his Sixth Amendment right to effective assistance of counsel. We determine that claim lacks merit. Accordingly, we affirm Castro’s conviction. I FACTUAL AND PROCEDURAL BACKGROUND A. Prosecution Evidence On the evening of January 17, 2019, Leonardo Castro went to a restaurant with his parents, a family friend, and the friend’s two daughters. The daughters, eight-year-old N.I. and N.I.’s four-year-old sister, were students at a karate studio where Castro worked as an instructor’s assistant. Castro was 23 years old. Castro and the girls went into the indoor play area within the restaurant. The three of them began playing the “train game” in which two people lie face down on the floor and one person climbs over the other two. N.I. was lying on her stomach playing this game when Castro climbed on top of her and pressed his hands down on top of hers with enough force that N.I. 1 Further statutory references are to the Penal code, unless otherwise specified. 2 was unable to move. Castro then placed his penis area on N.I.’s buttocks area and began making back-and-forth movements with his hips. N.I. was uncomfortable and told Castro to get off, but he did not get up. Instead, Castro told N.I. to get into a “doggy position” by placing both her hands and knees on the ground. N.I. got into a doggy position, and Castro put his hands on top of N.I.’s hands and began moving his groin area back and forth against N.I.’s buttocks. Castro made these movements about 10 to 15 times before stopping. While Castro was making these movements, N.I. could feel that his penis was hard. Castro asked N.I. if what he was doing felt “good” or “nice.” After N.I. got out of this doggy position, Castro told N.I. to lay down on her back. N.I. refused and decided to leave the playground area with her sister to go use the restroom. Castro told N.I. not to tell her parents what had happened in the play area. Later that night, N.I. told her mother what Castro had done. N.I.’s parents took her to the police station to report the allegations. N.I told an investigating officer what Castro had done to her and then recounted the events during a forensic interview with a social worker. A detective contacted Castro and asked him to come to the Calexico police station for voluntary questioning. During his interview on January 23, 2019, Castro was read his Miranda2 rights, and after acknowledging that he understood his rights, he agreed to speak with the officer and detective about N.I.’s allegations. At trial, the People played an audio recording of the statements Castro made during his interrogation. 2 Miranda v. Arizona (1966) 384 U.S. 436 . 3  B. Defense Evidence When Castro voluntarily went to the Calexico police station for an interview with an officer on January 23, 2019, his mother accompanied him. Upon their arrival, the detective advised Castro and his mother that Castro was now being detained for questioning based on information that the detective had learned shortly before Castro’s arrival, and that the interview was no longer voluntary. After the detective told Castro’s mother that they needed to speak with him alone, she told Castro she was going to call an attorney and instructed him not to say anything to the officer or the detective before she left the room. The detective explained to Castro that the officer would read him his rights and then tell him what had been alleged by N.I. and her parents. The detective told Castro he could choose to exercise his rights, or he could waive them and explain to the detective and the officer what happened with N.I. The officer then read Castro his Miranda rights and received multiple affirmative confirmations from Castro that he understood each right after it had been read. After briefly explaining the allegations against Castro, the detective again advised Castro that he could choose to continue or stop the interview. Castro was willing to tell his side of the story and confirmed, once again, that he understood his rights. Castro stated that he was playing the “game” with N.I. when he fell on her and his “private fell on her butt” accidentally. He denied moving his penis against N.I.’s buttocks at any time but admitted that he told N.I. not to tell her parents about the train game. The detective told Castro that N.I. could feel that Castro was aroused when his penis was on her buttocks. Castro said that he understood what “aroused” meant, but his statements to the officer and the detective 4 demonstrated that he had some confusion around the exact meaning of the word “aroused.” The detective then explained that in this context, aroused meant that “part of [Castro’s] penis [was] hard.” On this point, Castro explained that he was “accidentally aroused” while playing the train game. He stated he became accidentally aroused because he was remembering a time when he was with friends who were drinking, and he got a “little bit aroused” thinking about something that happened on that occasion. The officer told Castro that N.I. had reported that, when Castro was rubbing his penis on her buttocks, he said, “How does it feel? Good and nice?” Castro denied saying these words to N.I. and instead claimed that when he accidentally fell on her, he asked N.I., “Did you feel it?” Castro clarified that “it” was in reference to his penis. Castro repeatedly denied asking N.I. if his actions felt “nice and good,” and he further denied putting pressure on N.I.’s hands and forcing her to stay down. When asked whether he had played “doggie” with N.I., Castro stated that he did not recall playing that game and denied holding N.I. down or thrusting his penis against her. Defense counsel did not move to suppress the statements prior to trial. At trial, Castro testified on his own behalf and admitted that he had played the “train game” with N.I. He further admitted that he had a “semi- erection” while playing the game and that he instructed N.I. and her sister not to tell their parents about the game. Castro denied that he was aroused by N.I., that he put his hands on N.I.’s hands, or that he put his penis on N.I.’s buttocks. He had also denied to police that he asked N.I. to get into a “doggy position” or whether his actions felt “good” or “nice” to her. Castro testified that he fell onto N.I. after getting his foot stuck in his karate pants and losing his balance. Castro stated that he then apologized to 5 N.I. He further claimed he had asked N.I. if she had been hurt by his fall, and N.I. told him she had not been hurt. During the trial, the prosecutor referenced Castro’s statements about his admission to having an erection while playing with N.I. She played the audiotape of Castro’s interrogation; she asked the investigating officer about Castro’s statements during his direct examination, and she asked Castro himself about the statements during cross-examination. In her closing argument, the prosecutor referenced Castro’s arousal several times, suggesting that Castro’s explanation about his erection was not believable. On cross-examination, the prosecutor asked Castro about his statements to law enforcement that he became sexually aroused while playing with N.I. Castro admitted that he had become aroused and characterized his arousal as a “semi-erection.” Castro testified that he had told the officer and the detective that he had been sexually aroused when he accidentally fell onto N.I.’s buttocks while playing a game with N.I. Defense counsel did not object when the prosecutor played the audiotape of Castro’s interrogation. Similarly, defense counsel did not object to either the prosecutor’s questions to witnesses about Castro’s statements to law enforcement or to the prosecutor’s comments during closing arguments regarding Castro’s statements to law enforcement. II DISCUSSION Castro contends that his trial counsel was ineffective specifically for: (1) failing to make a motion to suppress the statements he made to law enforcement, (2) not objecting to the jury hearing an audio recording of the interrogation, and (3) not objecting to the prosecutor’s use of the statements 6 in her closing argument. We are not persuaded that Castro’s claim of ineffective assistance of counsel has merit. To prevail on a claim of ineffective assistance of counsel, Castro must show (1) his counsel’s performance fell below the objective standard of reasonableness; and (2) he was prejudiced as a result. (People v. Weaver (2001) 26 Cal. 4th 876 , 961; Strickland v. Washington (1984) 466 U.S. 668 , 688 (Strickland).) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel’s choice. (People v. Musselwhite (1998) 17 Cal. 4th 1216 , 1260 (Musselwhite); People v. Ray (1996) 13 Cal. 4th 313 , 349 (Ray).) An appellate court generally cannot fairly evaluate counsel’s performance at trial based on a silent record. (People v. Mendoza Tello (1997) 15 Cal. 4th 264 , 266-267.) On appeal, we are left with the record to reveal why counsel did not move to suppress or object to the prosecution’s use of Castro’s statements to law enforcement. The burden is on Castro to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland, supra , 466 U.S. at p. 689.) Because the record does not explain why counsel chose not to object or suppress, Castro’s claim must be rejected unless the record positively excludes a rational basis for trial counsel’s choice. (Ray, supra , 13 Cal.4th at p. 349; Musselwhite, supra , 17 Cal.4th at p. 1260.) Castro contends that trial counsel was ineffective for failing to suppress his statements made to law enforcement and for not objecting to the prosecution’s references to those statements throughout trial. Castro bases his argument on the grounds that those statements were inadmissible because they were coerced, and he did not knowingly or voluntarily waive his Miranda rights. 7  However, Castro’s assertion that his statements to law enforcement were coerced fails, as there is no evidence in this case that shows the statements he made in his interview were coerced or otherwise not voluntary. Castro was a 23 year old adult at the time of his interview. He had been advised by his mother to exercise his rights and to not speak to law enforcement. Castro only made those statements after he was read his Miranda rights, after he acknowledged that he understood his rights, and after he agreed to speak with the officer and detective about N.I.’s allegations. The detective and officer asked Castro multiple times if he was okay with answering their questions, emphasizing that Castro controlled the conversation. The statements were not coerced because Castro was an adult fully apprised of his rights, rights which even his mother recommended he exercise, when he voluntarily made those statements to law enforcement. The fact that Castro learned that he was being detained for questioning only after arriving at the police station, for what he was initially told was a voluntary interview, does not render his statements involuntary because Castro could have refused to provide any statement at all. These circumstances did not clearly override his will nor critically impair his capacity for self-determination such that use of his statements would offend due process. (Berghuis v. Thompkins (2010) 560 U.S. 370 , 387 [Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion]; Arizona v. Fulminante (1991) 499 U.S. 279 , 303 (Fulminante).) Additionally, Castro’s confusion as to what “aroused” meant does not negate his knowing and voluntary waiver of his Miranda rights. Because Castro’s statements were admissible and not the result of coercive interrogation tactics, trial 8 counsel’s failure to suppress the statements does not amount to ineffective assistance of counsel. Moreover, there could be any number of reasonable explanations as to why defense counsel chose not to object to the introduction of Castro’s statements at trial. It is possible trial counsel believed that by admitting the entirety of the interview between Castro and law enforcement, trial counsel could demonstrate to the jury Castro’s confusion surrounding the word “arousal,” and thus undermine the validity of material admissions he made to law enforcement. Or trial counsel may not have objected or moved to suppress because he felt the full interview challenged the officer’s and the detective’s credibility as witnesses. The fact that Castro testified on his own behalf at trial supports the notion that, instead of making a futile motion to suppress or objecting to the admission of Castro’s statements, counsel had Castro testify and explain those statements as part of the defense’s trial strategy. Because there is no evidence in the record that Castro’s statements to law enforcement were coerced or involuntary, Castro has failed to demonstrate that his counsel’s representation fell below the standard of a competent advocate. Thus, the record does not support Castro’s contention that his trial counsel performed deficiently in failing to suppress or object to the evidence of his statements. We need not address the second prong Castro must meet in order to prevail on his ineffective assistance of counsel claim because Castro is unable to prove that trial counsel’s representation fell below the minimum standard of a competent advocate. Regardless, we find that Castro fails to prove he was prejudiced as a result of his trial counsel’s failure to object to or suppress the admission of his statements. 9  For an ineffective assistance of counsel claim to be successful on appeal, Castro must not only prove his trial counsel’s representation fell below the objective standard of reasonableness, but he must also affirmatively prove “ ‘ “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (People v. Hart (1999) 20 Cal. 4th 546 , 624.) Castro fails to meet this standard. As we previously noted, the statements Castro made to law enforcement were knowing, voluntary, and the result of his own free will, and therefore legally admissible. (Fulminante, supra , 499 U.S. at p. 303 [confession does not violate due process when it is the product of an essentially free and unconstrained choice by its maker, such that his will has not been overborne nor his capacity for self-determination critically impaired].) Because the interview was ultimately admissible, it is not probable the outcome of the trial would have been any different absent the objections. (See People v. Rodriguez (2014) 58 Cal. 4th 587 , 637 [rejecting defendant’s claim that trial counsel was ineffective for not objecting to admission of statements defendant made in her deposition because “an objection on hearsay grounds would have been specious”]; see also People v. Anderson (2001) 25 Cal. 4th 543 , 587 [counsel is not required to proffer futile objections]; see also People v. Constancio (1974) 42 Cal. App. 3d 533 , 546 [“It is not incumbent upon trial counsel to . . . undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.”].) Thus, Castro cannot establish either of the elements required in order to prevail on an ineffective assistance of counsel claim. 10  DISPOSITION Judgement is affirmed. HUFFMAN, Acting P. J. WE CONCUR: IRION, J. DATO, J. 11

2021-01-26 22:02:28.167867+00

https://www.courts.ca.gov/opinions/nonpub/B300926.PDF

Filed 1/26/21 P. v. Lallis CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B300926 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA006473) v. RICHARD CHARLES LALLIS, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County. Cynthia L. Ulfig, Judge. Affirmed. Lori A. Quick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent. _________________________  In 1991, Richard C. Lallis (appellant) pleaded guilty to second degree murder after admitting to the police that he strangled a woman to death. Almost three decades later, he filed a petition pursuant to Penal Code section 1170.951—which was added by Senate Bill No. 1437 (2017-2018 Reg. Sess.) and effective January 1, 2019—seeking to vacate his conviction and be resentenced on the grounds, inter alia, that he was not the actual killer. The trial court denied the petition because the record of conviction and court file established that he was the actual killer and, therefore, he was ineligible for relief. On appeal, he contends: (1) the trial court erred by failing to appoint counsel pursuant to section 1170.95, subdivision (c) before making a prima facie eligibility finding; and (2) the trial court violated his federal and state due process rights. We find no error and affirm. FACTS The Crime and Plea When police entered an apartment to investigate a report of a death, they found appellant lying on the floor and the body of a 26-year-old woman inside a closet. Appellant admitted that he had strangled her. The Los Angeles District Attorney’s Office charged appellant with first degree murder. (§ 187, subd. (a).) He pleaded guilty to second degree murder and was sentenced to 15 years to life in prison. The Petition for Resentencing; Denial of the Petition Appellant filed a section 1170.95 petition for resentencing using a nongovernmental form. He checked the boxes stating: 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 (1) he pleaded guilty or no contest to first or second degree murder in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine; and (2) he could not now be convicted of first or second degree murder because of the amendments to sections 188 and 189 by Senate Bill No. 1437. He requested that the trial court appoint counsel. The trial court reviewed the record of conviction as well as the court file. It found that appellant was ineligible for resentencing because he was the actual killer and summarily denied the petition. In addition, it denied the request for appointment of counsel. This appeal followed. DISCUSSION I. Senate Bill No. 1437 and Section 1170.95. Senate Bill No. 1437 amended “‘the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ [Citation.] ‘Senate Bill No. 1437 achieve[d] these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can only be liable for felony murder if (1) the “person was the actual killer”; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the “person was a major participant in the underlying felony and acted with reckless indifference to human life.”’ [Citation.]” (People v. Tarkington 3 (2020) 49 Cal. App. 5th 892 , 896 (Tarkington), review granted Aug. 12, 2020, S263219.) Section 1170.95 was added by Senate Bill No. 1437 (Tarkington, supra , 49 Cal.App.5th at pp. 896–897) and provides: “‘A person convicted of felony murder or murder under a natural and probable consequences theory’ may file a petition ‘when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’ (§ 1170.95, subd. (a).)” The petition must include the petitioner’s declaration showing eligibility, the case number, the year of conviction, and any request for counsel. (§ 1170.95, subd. (b)(1); Tarkington, supra , at pp. 896–897.) Subdivision (c) of section 1170.95 provides: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor[’s] response is served. These deadlines shall be extended for good cause. If the 4 petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” II. Current Case Law. Court of Appeal decisions interpreting Senate Bill No. 1437 have held that a trial court can consider the record of conviction and court file when conducting a multi-step review process to determine prima facie eligibility for section 1170.95 relief, and that counsel need not be appointed if the record of conviction and court file defeat eligibility. (See People v. Lewis (2020) 43 Cal. App. 5th 1128 (Lewis), review granted Mar. 18, 2020, S260598; People v. Cornelius (2020) 44 Cal. App. 5th 54 , review granted Mar. 18, 2020, S260410; People v. Verdugo (2020) 44 Cal. App. 5th 320 , review granted Mar. 18, 2020, S260493; Tarkington, supra , 49 Cal. App. 5th 892 ; People v. Edwards (2020) 48 Cal. App. 5th 666 , review granted July 8, 2020, S262481.) Review is pending in each of these cases. Until our Supreme Court provides further guidance, we adopt the reasoning of these cases as our own. The current state of the law establishes the following procedure. Initially, the trial court determines whether any of the information required by section 1170.95, subdivision (b)(1) is missing. If so, “the court may deny the petition without prejudice to the filing of another petition containing the requisite information. [Citations.]” (Tarkington, supra , 49 Cal.App.5th at p. 897.) The next step is a preliminary review of statutory eligibility for resentencing. At this phase, the trial court “must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he was convicted of first or second degree murder 5 based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony-murder theory. [Citation.] If not, the court can dismiss any petition filed by an ineligible individual. [Citation.] ‘The court’s role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner.’ [Citation.]” (Id. at p. 898.) If the petitioner’s ineligibility is not established as a matter of law by the record of conviction, “evaluation of the petition proceeds to the ‘second prima facie review,’ in which ‘the [trial] court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties’ briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief.’ [Citation.]” (Ibid.) If the requisite showing is made, the trial court must issue an order to show cause and then hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner on any remaining counts, provided that the new sentence is not greater than the initial sentence. “At that hearing, the prosecution has the burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing.” (Ibid.) III. Appellant was not Entitled to Appointment of Counsel. Lewis observed, “‘It would be a gross misuse of judicial resources to require the issuance of an order to show cause or even appointment of counsel based solely on the allegations of the petition, which frequently are erroneous, when even a cursory review of the court file would show as a matter of law that the 6 petitioner is not eligible for relief.’” (Lewis, supra , 43 Cal. App. 5th 1138 .) This observation is applicable here because appellant admitted he was the actual killer. As a matter of law, he was ineligible for relief under section 1170.95. (Tarkington, supra , 49 Cal.App.5th at p. 896.) Appointing counsel in the trial court would serve no legitimate purpose; rather, it would waste limited judicial resources. IV. The Trial Court did not Violate Appellant’s Rights to Due Process. Appellant posits that the denial of counsel arbitrarily deprived him of a state-created liberty interest in being resentenced, and that this deprivation violated his federal right to due process. (Hicks v. Oklahoma (1980) 447 U.S. 343 , 346 [a state cannot arbitrarily deprive a defendant of a state-created liberty interest].) This argument fails. Because he was not eligible for resentencing, appellant was not arbitrarily deprived of resentencing. (See Tarkington, supra , 49 Cal.App.5th at p. 908 [appellant had no liberty interest in appointment of counsel because he was categorially ineligible for relief under section 1170.95].) Alternatively, appellant argues that under the due process clause of section 7, article I of the California Constitution, he had a right to counsel after he checked the appropriate boxes in his section 1170.95 petition. He concedes that there is no case on point. His theory is that due process requires a meaningful opportunity to be heard, and that he did not receive that opportunity because he did not have an attorney. But he filed his petition, so he had as meaningful an opportunity as possible to be heard during the initial prima facie review. Further, case law explains that when a defendant seeks postconviction relief, a 7 state can condition appointment of counsel on a showing that the defendant has a prima facie case. (In re Barnett (2003) 31 Cal. 4th 466 , 475 [habeas corpus]; People v. Shipman (1965) 62 Cal. 2d 226 , 232–233 [coram nobis].) This rule defeats invidious discrimination between rich defendants and poor defendants while allowing the state to avoid the waste of resources that would occur if counsel had to be appointed in meritless cases. (Ibid.) We conclude that the state Constitution allows the denial of counsel when the record of conviction and/or the court file irrefutably establishes that a defendant is ineligible for section 1170.95 relief. DISPOSITION The order denying appellant’s section 1170.95 petition for resentencing is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. _____________________, J. ASHMANN-GERST We concur: ________________________, P. J. LUI _______________________, J. HOFFSTADT 8

2021-01-26 22:02:25.881102+00

https://www.courts.ca.gov/opinions/nonpub/C091657.PDF

Filed 1/26/21 P. v. Villescaz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE, C091657 Plaintiff and Respondent, (Super. Ct. No. CRPR20207) v. MICHAEL LEON VILLESCAZ, Defendant and Appellant. In 1976, defendant was convicted of sodomy while confined in state prison. (Pen. Code,1 § 286, subd. (e).) As a result of his conviction, defendant must register as a sex offender under section 290. In November 2016, defendant was convicted of possession of a controlled substance and was sentenced to two years eight months in state prison. Defendant was released on parole to Yolo County on July 9, 2018, with a parole expiration date of June 28, 2022. 1 Further undesignated statutory references are to the Penal Code. 1  As a section 290 registrant on parole and as special conditions of his parole, defendant was required to wear a global positioning system (GPS) monitoring device. (§ 3010.10.2) Special condition No. 068 required defendant to “participate in continuous electronic monitoring, e.g., global positioning system (GPS) technology.” Special condition No. 073 required defendant to “charge the GPS device at least two times per day (every 12 hours) for at least 1 full hour for each charging time.” And special condition No. 075 directed defendant to “contact [his] parole agent immediately if and when the device vibrates and/or makes an audible tone (beep).” Defendant signed forms outlining the general and special conditions of his parole on July 10, 2018, the day after he was released on parole. On January 15, 2020, defendant’s parole agent Troy Libonati filed a parole revocation petition in Yolo County Superior Court alleging defendant violated section 3010.10, subdivision (b), as well as his special parole conditions that required him to wear a GPS monitoring device. That same day, the court held an ex parte proceeding and found probable cause to preliminarily revoke defendant’s parole. According to the parole violation report, on January 10, 2020, at around 4:43 p.m., defendant’s GPS device emitted a “low battery” vibrating alert. During “low battery mode,” the GPS device vibrates numerous times to alert the wearer it needs to be charged. Despite this warning, defendant failed to charge his GPS device. At 9:42 p.m. that same day, defendant’s GPS device emitted a “critical battery” vibrating alert. In this mode, the device vibrates numerous times to warn the wearer that 2 Section 3010.10, subdivision (b) provides: “A person who is required to register as a sex offender pursuant to Section 290 shall not remove, disable, render inoperable, or knowingly circumvent the operation of, or permit another to remove, disable, render inoperable, or knowingly circumvent the operation of, an electronic, GPS, or other monitoring device affixed to his or her person as a condition of parole, when he or she knows that the device was affixed as a condition of parole.” 2 the battery will go into “dead battery” mode unless the device is charged. Defendant again failed to charge his GPS device. At 2:12 a.m. on January 11, 2020, defendant’s GPS battery went into a “dead battery” mode. In “dead battery” mode, defendant’s GPS device no longer provided tracking information for him. A few minutes later, the monitoring company contacted Libonati regarding the dead battery on defendant’s GPS device. After investigating, Libonati confirmed defendant’s GPS device was in “dead battery” mode. He contacted the Woodland Police Department, which dispatched police officers to defendant’s last known location. Defendant was later arrested. After defendant’s arrest, Libonati retrieved defendant’s GPS device from the detention facility where he was being held. Another agent was able to charge the device as intended, and the device was able to retain the charge as designed. On January 17, 2020, defendant was arraigned on his parole violation charge. The court appointed defendant counsel. Defense counsel advised the court that defendant denied the parole violation charge and requested a hearing. At the parole revocation hearing on February 14, 2020, the People introduced the parole department’s monitoring reports for defendant’s GPS device. Agent Libonati also testified. According to Libonati, he had supervised defendant on parole since September 2018, and was familiar with defendant’s signed parole conditions, including condition No. 068, which required him to participate in continuous electronic monitoring. Libonati had numerous conversations with defendant about his obligation to keep his GPS device charged. Defendant had a history of violating the terms of his parole and had been incarcerated at least five times for previous violations, including violations related to his GPS device. After defendant violated parole again in January 2020, Libonati picked him up from jail and provided him with another GPS device and a brand new charging system. At the time, Libonati again instructed defendant on how to utilize the equipment, 3 including that he needed to charge the device twice a day for one hour at a time. Libonati explained that when a GPS battery runs low, it will vibrate and buzz on the parolee’s ankle to alert that the device needs to be plugged in. In the early morning hours of January 11, Libonati received a call from the monitoring company alerting him that defendant’s GPS device was in dead battery mode. After defendant was apprehended by police, agent Libonati retrieved his dead GPS device. The device appeared to be in working order and was able to be charged. Libonati testified that defendant could charge his GPS device at the parole office during business hours. While Libonati conceded during cross-examination that the parole office was scheduled to close at 5:00 p.m., only 15 minutes after defendant received the first low battery notification around 4:45 p.m., defendant was supposed to charge it twice a day and had failed to do so for several days before receiving the notification. Libonati also testified that in addition to the parole office, other public places like libraries and businesses such as Starbucks also had outlets available to charge devices. And although Libonati did not allow the device to run all the way down to low to check to see if it vibrated, he testified that he was able to send a signal to the device to check whether it vibrated, which it did. Defendant did not present any evidence or witnesses at the parole revocation hearing. His counsel did argue, however, that the parole condition requiring defendant to wear a GPS device was unreasonable. The court allowed the parties to file supplemental briefs following the hearing. Defense counsel filed a brief arguing that sections 3004 and 3000.07 as well as parole condition No. 068, requiring defendant to wear a GPS device, violated the Eighth Amendment, that section 286, subdivision (e), of which defendant was convicted in 1976, violated the equal protection clause, and that the evidence presented at the hearing did not prove a violation. The People’s opposition brief argued that defendant was subject to electronic monitoring pursuant to section 3010.10, that his underlying sex offense did not 4 violate equal protection, and that they had proved defendant knowingly circumvented the operation of his GPS device by failing to charge the battery. At a subsequent hearing in February 2020, the parties argued their respective positions regarding the constitutionality of defendant’s GPS monitoring parole condition and whether the People had proved a violation. Following argument, the trial court declined to find that defendant’s 1976 sex offense conviction under section 286, subdivision (e) was unconstitutional, or that the GPS monitoring condition violated his constitutional rights. Having rejected defendant’s constitutional claims, the court found by a preponderance of the evidence that defendant violated the terms of his parole by not charging his GPS device. The court sentenced defendant to 180 days in county jail and awarded him 97 days of credit (49 days of actual custody time and 48 days of conduct credit). Defendant timely appealed. DISCUSSION We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal. 3d 436 .) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. 5  DISPOSITION The judgment is affirmed. /s/ Robie, J. We concur: /s/ Hull, Acting P. J. /s/ Murray, J. 6

2021-01-26 22:00:35.119232+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D01-26/C:20-1868:J:Flaum:aut:T:fnOp:N:2650757:S:0

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1868 145 FISK, LLC, Plaintiff-Appellant, v. F. WILLIAM NICKLAS, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 19-cv-50093 — Philip G. Reinhard, Judge. ____________________ ARGUED DECEMBER 10, 2020 — DECIDED JANUARY 26, 2021 ____________________ Before SYKES, Chief Judge, and FLAUM and KANNE, Circuit Judges. FLAUM, Circuit Judge. Illinois authorizes municipalities to invest in revitalizing areas of “commercial blight.” See 65 Ill. Comp. Stat. 5/11-74.4 et seq. The City of DeKalb, Illinois (the “City”), entered into a preliminary agreement to allocate just such an incentive to 145 Fisk, LLC (“Fisk”). After more due diligence, however, the City reversed course. 2 No. 20-1868 Fisk is convinced the City would have proceeded with the funding as planned but for the meddling of City Manager F. William Nicklas. According to Fisk, Nicklas sought to retali- ate against it and favor other local developers in violation of its First and Fourteenth Amendment rights. The district court dismissed Fisk’s suit for failure to state a claim upon which relief can be granted and relinquished supplemental jurisdic- tion over the remaining state law claims. Because we agree that Fisk has not plausibly stated grounds for relief, we affirm the judgment of the district court. I. Background Plaintiff-appellant Fisk is a limited liability company. The entity was formed on December 13, 2018, and it consisted of two members, one of whom is an attorney (“Attorney Mem- ber”). Fisk alleges that for over two years it collaborated with the City regarding a proposed redevelopment of a dilapidated property at 145 Fisk Avenue in DeKalb. On December 18, 2018, the City adopted Resolution 2018-166 approving a Pre- liminary Development Incentive Agreement (“PDA”) with Fisk regarding potential financing for the project. The PDA, into which the parties entered on or about January 1, 2019, provided that if Fisk met certain contingencies set forth therein, the City would provide an approximate $2,500,000 Development Incentive (“Development Incentive”) in Tax In- crement Financing (“TIF”) to Fisk for the redevelopment. Per the PDA, the Development Incentive was “intended to be re- paid as a forgivable incentive, payable through the generation of revenues from the development of the Property after the date of final plan approval.” No. 20-1868 3 Both the PDA and the Resolution, however, imposed con- ditions and obligations on both parties before finalizing the development agreement and distributing the funds. The Res- olution provided that the City Council “hereby approves of the Development Incentive Agreement … subject to such amendments as shall be acceptable to the Mayor with the rec- ommendation of the City Manager. Staff is authorized to ne- gotiate and proceed with presentation of [the] Final Develop- ment Agreement for consideration of approval at a future date.” The PDA likewise subjected the Development Incentive to various contingencies. For example, Recital C of the PDA states “the Parties have entered into this Agreement so as to provide an incentive for [Fisk] to … proceed with the pro- posed project, subject to the contingencies outlined herein.” Recital E continued: “[Fisk] acknowledges that the City is not required to provide the incentive contemplated herein ….” In- deed, the extent of the arrangement is an “agreement to con- ditionally approve.” The PDA further states in Article II(A) that “[Fisk] acknowledges all contingencies outlined in this Agreement, and agrees and acknowledges that until all such contingencies are fully satisfied, it has no basis to detrimen- tally rely upon the representations of the City with respect to the availability of incentive funding.” With respect to costs in- curred, under Article II(A) “[Fisk] agrees and acknowledges that any costs incurred prior to approval of a planned devel- opment agreement as contemplated herein … are incurred at [Fisk]’s sole risk and cost until such point in time as the Prop- erty is rezoned and the planned development agreement is approved, and any other conditions or contingencies outlined herein are satisfied in full.” (Emphasis added). Even in defin- ing the “Development Incentive,” Article V(B) states “All 4 No. 20-1868 provisions of this Article V are contingent upon [Fisk] obtain- ing final approval of its plans, rezoning the Property, lender financing, and executing a planned development agreement as described above.” Amid the negotiations over the redevelopment project, a transition in the City’s personnel marked the beginning of the end for Fisk’s proposed Development Incentive. Around Jan- uary 1, 2019, F. William Nicklas became the new City Man- ager. Unsatisfied with previous due diligence, Nicklas opened his own inquiries into Fisk’s financial affairs and de- velopment plans. This included a series of in-person meetings and exchanges during February and March 2019 between Nicklas and Fisk’s principals. Nicklas requested “personal in- formation” about the principals, their affiliates, and their fi- nancial situation. Nicklas even spoke with the Attorney Mem- ber’s personal banker. Nicklas also requested information about the corporate entity itself, including a worksheet to in- dicate its “financial viability.” Fisk never, however, affirma- tively states in the record what amount of working capital the principals or the corporate entity specifically had to fund the project contemplated by the PDA. By Fisk’s account, all Nick- las’s requests duplicated the City’s prior ones and were not required by the Resolution or PDA. Nicklas’s review exposed cracks in the project’s founda- tion. In an email to Fisk dated April 1, 2019, Nicklas stated he felt “duty-bound” to inform the Council that in his opinion Fisk did not have “the financial capacity or the experience” needed for the funding. Nicklas based this conclusion on sub- missions from Fisk, including the financial worksheet, a budget for three years of operation following 145 Fisk Ave- nue’s completion, and the principals’ own No. 20-1868 5 “acknowledgment” during a March 2019 meeting that neither “ha[d] ever developed a hotel property in the past.” Nicklas recommended Fisk withdraw its application. Specifically, Nicklas stated: [M]y judgment is based upon the following con- clusions: 1. No balance sheet for 145 Fisk LLC has been submitted, but your submittal shows no current or long-term assets that can be pledged as col- lateral. The corporation controls a 24,000 square foot, uninhabitable facility with an estimated market value of only $300,000. 2. 145 Fisk LLC has not secured any sources of income to complete the project or operate the project upon its completion. 3. 145 Fisk LLC has no working capital and its operations are not generating any capital to pay for current expenses, much less the ongoing professional consulting fees incurred to date in the conceptual planning phase of the project. 4. On the basis of your submittal, it appears that 145 Fisk LLC is relying upon a $2.5 million TIF grant from the City and 100% of the balance of the equity funding from one or more financial institutions. Your submittal offers no working cash from the principals, or pledged private as- sets, or lines of credit, or other private equity to help finance the project. 5. You do not reveal the real and comparable ho- tel development upon which you are basing the 6 No. 20-1868 projected three-year profit and loss prospectus you submitted. Since you have not developed a hotel, your numbers are not rooted in an actual operation, so far as you have revealed. They [sic] are so many numbers on a page. 6. As you may know, TIF assistance carries a federal income tax liability. Your submittal shows no indication that 145 Fisk LLC could carry that liability except at the expense of the project’s development. 1 Disagreement ensued. In a series of subsequent ex- changes, the Attorney Member reiterated that the corporate entity was “simply a holding [LLC] at this point” and Nick- las’s “specific comments 1-6 [were]n’t accurate, include[d] er- roneous assumptions, [we]re disingenuous, or [we]re com- pletely out of context.” The Attorney Member emphasized “[a]ll [they] need is a loan commitment to proceed, but … commitment and income sources cannot be secured until a formal commitment from the City is finalized.” Fisk also re- jected Nicklas’s recommendation to withdraw its application for the Development Incentive. 1 The City Attorney reiterated these concerns as well. In an April 2, 2019 email attached as an exhibit to Fisk’s operative complaint, he wrote the “fundamental question that the City Manager is trying to address is the appropriateness of and/or necessity for a financial incentive.” Moreover, he contextualized that the City required submission of a detailed financial pro forma (along with other documents) in its review of previous requests for incentives for hotel projects that a third-party consultant reviewed for completeness, reasonableness, and accuracy. The City Attorney also in- vited Fisk to share any additional information in its possession. No. 20-1868 7 As it turns out, the events of 2019 were not the first en- counter between Nicklas and Fisk’s members. The Attorney Member represented a client in a state court lawsuit involving the City of Sycamore. In response to an interrogatory dated April 21, 2017, that client identified Nicklas—who was previ- ously Sycamore’s City Manager—as a witness. Through the proceedings, an email surfaced in which Nicklas referred to regulatory requirements imposed by “[t]hat pesky Constitu- tion” which “has strictures against artificial distinctions.” However, the client in that suit was not Fisk. In fact, Fisk had not yet come into corporate existence. During that same period, Nicklas considered two other development projects with which, Fisk alleges, Nicklas had previous financial and personal ties for funding incentives. The first was a TIF-backed hotel project with a developer named Shodeen. Nicklas had previously collaborated on a ho- tel with Shodeen that never came to fruition. The second was a TIF-backed apartment development project with John Pap- pas. Nicklas had previously represented Pappas’s major in- vestor, who intended to invest in the TIF-backed apartment, in consulting work. Nicklas ultimately recommended the City terminate the PDA with Fisk. During an April 22, 2019, meeting, the City Council addressed Nicklas’s findings. The City’s Agenda notes indicated the City did not receive “the necessary finan- cials and development plans to justify a permanent commit- ment to the allocation of $2.5 million” within 120 days of the Resolution. Specifically, the Council found the financial doc- uments “were barren of any assurance that the LLC could af- ford ongoing preliminary planning and engineering fees.” The Council further cited “insufficient project details” to 8 No. 20-1868 advance “to a formal development hearing.” Specifically, the lack of documentation for a traffic impact study, final site en- gineering plans, “storm water management report examining the site’s runoff,” floor plans, and “variances or exceptions from the City’s development ordinances.” Accordingly, “[t]he Council determined that—on the basis of all known docu- ments—there was no reasonable or informed basis upon which the project could be considered viable.” The City Coun- cil unanimously voted to terminate the PDA. Fisk filed suit that same day. Fisk commenced this action in federal court against Nick- las in his individual capacity claiming violations of state and federal law. The state law claims included tortious interfer- ence with Fisk’s business expectancy, defamation per se, and defamation per quod. Relevant to this appeal, Fisk sued under 42 U.S.C. § 1983 for violations of its rights under the First and Fourteenth Amendments. Nicklas moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In lieu of a reply to Nicklas’s Rule 12(b)(6) motion, Fisk obtained leave to file an amended complaint. Fisk filed the First Amended Complaint, the operative complaint for this appeal, on November 5, 2019. Pertinent here, Fisk claims Nicklas vio- lated its First Amendment right (Count II), as well as its Four- teenth Amendment rights to due process (Count III) and equal protection (Count IX). Nicklas again moved to dismiss pursuant to Rule 12(b)(6). Fisk opposed and alternatively re- quested leave to replead. On April 27, 2020, the district court dismissed Fisk’s fed- eral claims against Nicklas for failure to state a claim with No. 20-1868 9 prejudice and relinquished jurisdiction over the supple- mental state law claims. 2 II. Discussion We review the district court’s grant of Nicklas’s motion to dismiss de novo to determine whether Fisk has stated a claim upon which relief can be granted. Bridges v. Gilbert, 557 F.3d 541 , 545 (7th Cir. 2009). “We accept well-pleaded facts as true and draw all reasonable inferences in the plaintiff[’s] favor.” Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056 , 1060–61 (7th Cir. 2020). Notwithstanding that deference, “[t]o survive a motion to dismiss, a plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its face.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362 , 365–66 (7th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). A. First Amendment Count II of the complaint alleges that Nicklas retaliated against Fisk for exercising its First Amendment right. Specifi- cally, Fisk alleges that as City Manager of DeKalb, Nicklas blocked the Development Incentive and “orchestrated [a] campaign” against Fisk because its Attorney Member ex- posed unflattering information about Nicklas and named him in discovery in connection with the unrelated 2017 lawsuit. Fisk pleaded that the Attorney Member’s representation in 2 Fisk also added the City of DeKalb as a defendant in the First Amended Complaint, claiming breach of contract and the duty of good faith and fair dealing. The City moved to dismiss, or transfer, based on a forum selection clause in the PDA. The district court relinquished the state law claims against the City and therefore denied its motion to transfer as moot. 10 No. 20-1868 the 2017 lawsuit fell within “the First Amendment’s right to petition the government for the redress of grievances.” The district court dismissed Fisk’s First Amendment retaliation claim, reasoning that Fisk did not engage in protected activ- ity. That is because the client in the 2017 lawsuit, who is not a party to this litigation, engaged in protected activity by exer- cising his or her right to petition the government when he or she accessed the courts. Thus, that nonparty client has the right to be free from retaliation for exposing Nicklas, not Fisk. To make a prima facie showing on its First Amendment retaliation claim, Fisk must establish that “(1) it engaged in activity protected by the First Amendment, (2) it suffered a deprivation that would likely deter First Amendment activity in the future, and (3) the First Amendment activity was … ‘at least a motivating factor’ in the Defendant[’s] decision to take the retaliatory action.” Woodruff v. Mason, 542 F.3d 545 , 551 (7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711 , 716 (7th Cir. 2006)). We have recognized that a plaintiff’s exercise of “[t]he First Amendment right to petition the government for the redress of grievances” may qualify for the first prong of a First Amendment retaliation claim. See id. Furthermore, the right to petition “extends to the courts in general and ap- plies to litigation in particular.” Id. (citing Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 , 510 (1972); NAACP v. Button, 371 U.S. 415 , 429–30 (1963)). On appeal, Fisk argues the district court erred in conclud- ing it did not engage in protected conduct to satisfy the first prong of a First Amendment retaliation claim. Fisk asserts that its protected conduct was “the work of one of its princi- pals in [the 2017] litigation.” It appears that Fisk now contends that the Attorney Member exercised his own First No. 20-1868 11 Amendment right to free speech, as distinct from his right to petition the government. Specifically, Fisk asserts that the At- torney Member exposed Nicklas in the 2017 litigation, while acting as Fisk’s agent, and thus the protected conduct is at- tributable to Fisk. Failing that, Fisk argues that even if we re- ject its arguments based on agency theory, Nicklas’s retalia- tory conduct against the Attorney Member for exercise of his free speech right nonetheless chilled Fisk from exercising its own First Amendment rights. The district court did not “erroneously ignore[] agency principles” when it concluded that Fisk did not engage in pro- tected activity in the 2017 lawsuit. The agency question is ir- relevant because the district court rightfully found that the underlying right to be free from retaliation for petitioning the government belonged to neither Fisk nor the Attorney Mem- ber. As the district court explained, “[t]he Attorney Member named Nicklas as a witness in that suit on behalf of his client in that case. He did not do so on behalf of [Fisk].” (Emphasis added). Stated another way, the client’s exercise of its First Amendment petition rights in 2017 cannot be Fisk’s “pro- tected conduct” for the purposes of Fisk’s “petition for redress of grievances retaliation claim.” See Bridges, 557 F.3d at 553 (dismissing claim because individual not party to lawsuit “ha[d] no ‘underlying claim’ that implicates his own right of access to the courts” (emphasis added) (quoting Christopher v. Harbury, 536 U.S. 403 , 415 (2009))). Fisk did not exercise its First Amendment petition right; in fact, Fisk did not even exist prior to 2018. That First Amendment right ran to the client in the 2017 suit. Fisk cannot “rely on another plaintiff’s injury in support of [its] own … claim” to show it engaged in protected activity. Id. at 554. 12 No. 20-1868 To the extent that Fisk advances a retaliation argument based on the exercise of free speech rights through the Attorney Member, that argument was waived.3 Fisk contends that it en- gaged in protected free speech when the Attorney Member filed evidence and witness disclosures implicating Nicklas in the 2017 suit. Cf. id. at 551–52 (reasoning plaintiff’s affidavit supplying his eyewitness account of alleged incident of in- mate mistreatment by prison officials could plausibly amount to protected First Amendment speech). However, Fisk did not frame Count II in the operative complaint as a retaliation claim based on its exercise of its free speech rights. Rather, Count II referred exclusively to “[t]he First Amendment right to petition the government for the redress of grievances [that] extends to the courts in general and is protected activity,” and alleged “[t]hat filing, prosecuting and defending the lawsuit where Defendant Nicklas was discovered as referring to the 3 In its opening brief on appeal, Fisk refers broadly to a single form of protected conduct to satisfy the first prong of its First Amendment retali- ation claim: “the work of one of its principals in parallel litigation.” Then, in reply, Fisk appears to refer to two forms of “protected conduct”: “Par- agraph 139 of the Amended Complaint alleges a retaliation against speech and for accessing the courts, which is also a speech claim.” To the extent Fisk attempts to add a new argument regarding the Attorney Member’s own “access[] [to] the courts,” Fisk may not raise a new theory in its reply brief. United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834 , 843 (7th Cir. 2018) (“Arguments raised for the first time in an appellate reply brief are waived.”). However, whether we characterize this argu- ment as two theories or one does not affect the crux of Fisk’s argument: The Attorney Member, acting as Fisk’s agent, engaged in protected con- duct when it participated in the 2017 lawsuit, which in Fisk’s view satis- fied the first prong for a First Amendment retaliation claim. Nor does it affect our analysis. As we stated above, the petition right belonged to the client, and as we explain infra, Fisk never presented the free speech argu- ment to the district court, and therefore it is waived. No. 20-1868 13 Constitution as ‘pesky’ was a protected activity because ‘the First Amendment’s right to petition the government for the redress of grievances extends to the courts in general and ap- plies to litigation in particular.’” In opposition to Nicklas’s Rule 12(b)(6) motion in the district court, Fisk referred to “[t]he right to petition for redress of grievances … includ[ing] the right to file a claim before a judicial body. [Cal. Motor Transp., 404 U.S. at 510 ]. The right to petition provides addi- tional protection for communication specifically aimed at the redress of grievances.” Fisk therefore advances this free speech theory for the first time on appeal. “In civil litigation, issues not presented to the district court are normally forfeited on appeal.” Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d 302 , 308 (7th Cir. 2010). As a final backstop, Fisk asserts that “[e]ven setting agency principles aside” the First Amendment applies to close par- ties. In Fisk’s view, Nicklas retaliated against the Attorney Member for his protected speech, which then chilled Fisk’s speech. As with its free-speech-retaliation theory described above, Fisk did not argue this close-party theory to the district court below, so we decline to reach it on appeal. Id. (“[I]t will be a rare case in which failure to present a ground to the dis- trict court has caused no one—not the district judge, not us, not the appellee—any harm of which the law ought to take note.” (citation and internal quotation marks omitted)). Because Fisk has not alleged that the corporate entity itself engaged in any protected conduct, its First Amendment claim fails at the outset. 14 No. 20-1868 B. Due Process We consider next Fisk’s claim in Count III that Nicklas de- prived it of its property in violation of the Fourteenth Amend- ment’s Due Process Clause. Relying on our decision in Bar- rows v. Wiley, 478 F.3d 776 (7th Cir. 2007), the district court ex- plained that Fisk had no constitutionally protected property interest because the PDA and contract for the purchase pro- vided only “a right to acquire the property,” not a right in the property itself, see id. at 780. To prevail on a procedural due process claim, a plaintiff must make a threshold showing that it “possessed a constitu- tionally protected property interest.” Kim Constr. Co., Inc. v. Bd. of Trs. of Vill. of Mundelein, 14 F.3d 1243 , 1245 (7th Cir. 1994) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 , 538 (1985)). “A property interest for purposes of the Due Process Clause is created by ‘existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.’” Id. at 1245–46 (quot- ing Bd. of Regents v. Roth, 408 U.S. 564 , 577 (1972)). But as we reiterated in Kim, “property is what is securely and durably yours under state … law, as distinct from what you hold sub- ject to so many conditions as to make your interest meager, transitory, or uncertain.” Id. at 1246 (alteration in original) (quoting Reed v. Village of Shorewood, 704 F.2d 943 , 948 (7th Cir. 1983), overruled on other grounds by Brunson v. Murray, 843 F.3d 698 (7th Cir. 2016)). On appeal, Fisk argues that the Resolution and PDA cre- ated a specific property right to the incentive. Alternatively, Fisk contends that the business relationship created by the No. 20-1868 15 Resolution, the contract to purchase the underlying land (which was contingent on receipt of the incentive), and the right to zoning approval were, on their own, each sufficient for Fourteenth Amendment purposes. Fisk’s argument that the Resolution created a protectable interest fails. We have stated that “[t]o demonstrate a prop- erty interest worthy of protection under the [F]ourteenth [A]mendment’s [D]ue [P]rocess [C]lause, a party may not simply rely upon the procedural guarantees of state law or local ordinance.” Cain v. Larson, 879 F.2d 1424 , 1426 (7th Cir. 1989). “[O]nly when the mandated procedure contains within it a substantive liberty or property interest” can such “purely procedural rules of … local law” give rise to a due process claim. Lavite v. Dunstan, 932 F.3d 1020 , 1033 (7th Cir. 2019). The Illinois Supreme Court has pronounced that “[a] resolu- tion or order is not a law, but merely the form in which the legislative body expresses an opinion.” Chi. & N. Pac. R.R. Co. v. City of Chicago, 51 N.E. 596 , 598 (Ill. 1898). The existence of the Resolution alone thus does not suffice to create a protected property interest; Fisk must identify some other “substantive liberty or property interest embedded within [relevant] pro- cedural regulations.” Lavite, 932 F.3d at 1034 . Fisk has not met that burden, as the plain language of the Resolution belies Fisk’s characterization of it as “non-discre- tionary,” i.e., as offering anything more than procedural rights. The Resolution was entitled “Authorizing A Prelimi- nary Development Incentive Agreement,” and the City Coun- cil resolved that “[s]taff is authorized to negotiate and pro- ceed with presentation of Final Development Agreement for consideration of approval at a future date.” (Emphases added). By its own terms, the Resolution did not bind or 16 No. 20-1868 otherwise “substantively limit[]” the City “by mandating a particular result when certain clearly stated criteria are met.” See Kim, 14 F.3d at 1248 (“Where ‘the requisite ... mandatory language’ is lacking, no protected interest is created.” (altera- tion in original) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454 , 464 (1989))); Hohmeier v. Leyden Cmty. High Schs. Dist. 12, 954 F.2d 461 , 465 (7th Cir. 1992) (“A rule or regula- tion … must have ‘binding force’ in order to create constitu- tionally protected property.”). We therefore agree with the district court’s conclusion that no constitutionally protected property interest arose from the Resolution. The clear lack of binding language also defeats Fisk’s un- supported assertion that the PDA created a protectable inter- est. The PDA was riddled with discretionary language. True, the PDA states, “the Parties agree and acknowledge that the Development Incentive as described herein is necessary in or- der to induce this project to occur, and satisfies all require- ments applicable to such an incentive.” However, tellingly, Fisk itself describes the PDA as a “mandatory consideration of the project.” (Emphasis added). The PDA provided that Fisk “acknowledge[d] that the City is not required to provide the incentive contemplated herein.” Elsewhere, the PDA further stated that until Fisk met all contingencies outlined in the PDA, “it ha[d] no basis to detrimentally rely upon the repre- sentations of the City with respect to the availability of incen- tive funding.” The PDA therefore lacked “sufficient directives to the decisionmaker to support a claim of entitlement” to the Development Incentive. See Kim, 14 F.3d at 1248 . For that same reason, Fisk’s reliance on Barrows is misplaced; unlike Barrows, the parties here did not agree that “a right to” the contract existed. 478 F.3d at 779 . Even setting that issue aside, Barrows offers little help to Fisk, because we held in that case No. 20-1868 17 that the plaintiff did not have a cognizable procedural due process claim. Id. at 781–82. Nor does Fisk’s argument that the Resolution created a “business relationship” affect our analysis. Under Illinois law, the existence of a business relationship may be cognizable for tort protection. See Miller v. Lockport Realty Grp., Inc., 878 N.E.2d 171 , 175 (Ill. App. Ct. 2007). But Illinois tort law only “recognizes that a person’s business relationships consti- tute a property interest” for purposes of creating an “enti- tle[ment] to protection from unjustified tampering by an- other.” Id. (citing Belden Corp. v. InterNorth, Inc., 413 N.E.2d 98 (Ill. App. Ct. 1980)). Illinois tort law does not transform a busi- ness relationship into a constitutionally protected property right. See Reed, 704 F.2d at 948 (urging courts to “look behind labels” and instead “ask whether under Illinois law” the in- terest in question is “securely and durably” the plaintiff’s); see also Rebirth Christian Acad. Daycare, Inc. v. Brizzi, 835 F.3d 742 , 747–48 (7th Cir. 2016) (“[W]hen determining the existence of a property interest … ‘we must look behind labels.’” (quoting Reed, 704 F.2d at 948 )). For the reasons already stated, the Res- olution did not create a constitutionally protected property interest. We find similarly unavailing Fisk’s remaining argument that the underlying contract for the building and the rezoning decision established cognizable constitutional property inter- ests. No cognizable interest stems from the underlying con- tract for the building. The contract was conditioned on the ex- ecution of a final development agreement, and thus that con- tract represented not a secure property interest but rather the hope to acquire one. See Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901 , 904 (7th Cir. 2011) (“To have a protectable 18 No. 20-1868 property interest in a benefit … a plaintiff must have more than an ‘abstract need or desire for it’ and more than a ‘uni- lateral expectation of it.’” (quoting Roth, 408 U.S. at 577 )). Meanwhile, the contention that Fisk lost “a mechanism for the property to be rezoned” fares no better because the zoning process is merely a “local procedural protection[],” which “do[es] not by [itself] give rise to [a] federal due process inter- est[].” Lavite, 932 F.3d at 1033 . Finally, adequate state law remedies remained available to Fisk. The district court relinquished supplemental jurisdiction over Fisk’s state law claims, and whether Nicklas’s or the City’s conduct violated state laws is for the state courts to de- cide. In line with Nicklas’s arguments, “[w]e have similarly held that, regardless of how a plaintiff labels an objectionable land-use decision (i.e., as a taking or as a deprivation without substantive or procedural due process), recourse must be made to state rather than federal court.” CEnergy-Glenmore Wind Farm No. 1, LLC v. Town of Glenmore, 769 F.3d 485 , 489 (7th Cir. 2014). Fisk cannot claim a constitutionally protected property in- terest, and so its procedural due process claim fails at the threshold. Accordingly, the issue of whether Fisk “was af- forded due process before being deprived of that interest does not arise.” Kim, 14 F.3d at 1245 . C. Equal Protection Fisk argues in Count IV that Nicklas singled it out for dis- parate treatment without a rational basis in violation of the Fourteenth Amendment’s guarantee against “den[ial] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Specifically, Fisk claims No. 20-1868 19 that Nicklas, in his role as City Manager, blocked the Devel- opment Incentive arbitrarily and discriminately because of personal animus or favoritism toward other developers. The district court concluded that Fisk pled itself out of court by providing several legitimate reasons for Nicklas’s conduct, defeating any “class of one” equal protection claim under the standard articulated in Miller v. City of Monona, 784 F.3d 1113 , 1121 (7th Cir. 2015) (quoting Village of Willowbrook v. Olech, 528 U.S. 562 , 564 (2000)). Under the Fourteenth Amendment’s Equal Protection Clause, a plaintiff who is not a member of a “protected class” may nonetheless bring a claim under the “so-called ‘class-of- one’ theory.” Fares Pawn, LLC v. Ind. Dep’t. of Fin. Insts., 755 F.3d 839 , 841 (7th Cir. 2014). To state a claim under this theory, a plaintiff must allege “(1) that [it] has been intention- ally treated differently from others similarly situated, and (2) that there is no rational basis for the difference in treat- ment.” Id. at 845 (citing Olech, 528 U.S. at 564 ). For the second criteria, we ask whether “a conceivable rational basis for the difference in treatment” exists. D.B. ex rel. Kurtis B. v. Kopp, 725 F.3d 681 , 686 (7th Cir. 2013). In fact, the rational basis need not even be “the actual justification.” Id. “[A]ny reasonably conceivable state of facts that could provide a rational basis” will suffice. See Scherr v. City of Chicago, 757 F.3d 593 , 598 (7th Cir. 2014) (quoting Lauth v. McCollum, 424 F.3d 631 , 634 (7th Cir. 2005)). We have further clarified that “[i]t is only when courts can hypothesize no rational basis for the action that al- legations of animus come into play.” Flying J Inc. v. City of New Haven, 549 F.3d 538 , 547 (7th Cir. 2008). Fisk is not a member of a protected class, so it proceeds under this class-of-one theory. On appeal, Fisk argues there 20 No. 20-1868 was no rational basis for Nicklas’s conduct. Failing that, Fisk contends that McDonald v. City of Winnetka, 371 F.3d 992 (7th Cir. 2004), held that even if Fisk’s complaint revealed a ra- tional basis, its class-of-one-claim can nonetheless survive be- cause Nicklas blocked the Development Incentive out of ani- mus for embarrassing him in the 2017 lawsuit or favoritism, see id. at 1001 (quoting Olech, 528 U.S. at 564 ). The parties dispute whether Fisk can point to an appropri- ate comparator to satisfy the first criteria for a class-of-one claim, which requires intentionally different treatment from others similarly situated. “Normally, a class-of-one plaintiff will show an absence of rational basis by identifying some comparator—that is, some similarly situated person who was treated differently.” Fares Pawn, 755 F.3d at 845 . “[I]f all prin- cipal characteristics of the two individuals are the same, and one received more favorable treatment, this may show there was no proper motivation for the disparate treatment.” Id. (quoting Swanson v. City of Chetek, 719 F.3d 780 , 784 (7th Cir. 2013)). As explained below, however, because we conclude that Nicklas had a rational basis for blocking the Develop- ment Incentive, we need not resolve the issue of whether Fisk can satisfy the first criteria for a class-of-one claim. Id. at 846 (holding summary judgment appropriate where no reasona- ble jury could find “[plaintiff] and the comparator were simi- larly situated, or there was a rational basis for any differential treatment”). We agree with the district court that Fisk’s complaint re- vealed a rational basis to explain why Nicklas recommended termination of the PDA. Relying on Fisk’s own submissions about the corporate entity and principals’ finances, Nicklas ultimately concluded the project was not “financially viable.” No. 20-1868 21 Nicklas’s due diligence revealed that Fisk had “no current or long-term assets that can be pledged as collateral”—other than the prospect of the Development Incentive—to obtain a loan for the estimated approximate $4,600,000 balance needed to pursue the project. Nicklas’s concerns about Fisk’s financial wherewithal to execute the planned multimillion-dollar pro- ject alone qualifies as a “reasonably conceivable state of facts that could provide a rational basis.” Scherr, 757 F.3d at 598 (emphasis omitted) (citation omitted). Likewise, those finan- cial concerns together with the litany of others cited in the City Council’s April 22, 2019, meeting, including Fisk’s failure to submit plans for a traffic study, square footage, storm wa- ter management, and variances and ordinances, could pro- vide a conceivable rational basis for blocking the Develop- ment Incentive. Fisk attempts to cast doubt on Nicklas’s stated reasons for blocking the Development Incentive, but Fisk does not carry its burden to “negative any reasonably conceivable state of facts that could provide a rational basis” for Nicklas’s con- duct. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 , 367 (2001) (citation and internal quotation marks omitted); Bell v. Duperrault, 367 F.3d 703 , 707 (7th Cir. 2004) (burden lies with plaintiff). Fisk makes three arguments why “[l]ogic, reason, and common sense are missing” from this case, “given the pa- tently and knowingly false statements being publicly re- leased.” First, Fisk appears to assert that Nicklas’s public statements to the media regarding concerns about Fisk repre- sent nothing more than “an orchestrated campaign of retalia- tion” for the 2017 lawsuit and thus evidence illegitimate ani- mus. Fisk thus questions Nicklas’s motivation in blocking the Development Incentive, which we do not consider until we can “hypothesize no rational basis.” Flying J, 549 F.3d at 547 . 22 No. 20-1868 Second, and more relevant on appeal, Fisk challenges Nicklas’s doubts about Fisk’s financial health as a rational ba- sis. However, Fisk does not affirmatively state what working capital or collateral the principals had in hand. Fisk’s general- ized, conclusory argument that Nicklas’s stated reasons for terminating the PDA were “untrue reasons” and were “false, illegitimate claims” does not “negative” Nicklas’s specific doubts about Fisk’s financial health. 4 See id. at 546 (applying Lauth standard on Rule 12(b)(6) motion). In its reply brief, Fisk adds “alleging depend[e]nce on lender financing is an irra- tional dichotomy: if [Fisk] had no working capital or collat- eral, it could not receive lender financing.” It was not irrational for Nicklas to conclude the City should not finance a company that relies solely on those City-provided funds to obtain the remainder of the money needed to complete the project. “The rational-basis requirement sets the legal bar low ….” Kopp, 725 F.3d at 686 . Nicklas’s concerns about the use of millions of dollars in taxpayer funds easily clear that bar. Third and finally, Fisk argues that another of Nicklas’s proffered reasons for terminating the PDA, that the entity lacked hotel experience, is not a rational basis either. Fisk con- tends that it should have been “evaluated in its own right sep- arate from its principal members or … only … through its two principal-agent members.” We do not need to opine on whose experience matters: Fisk has not claimed that Fisk or its 4At oral argument, Fisk for the first time affirmatively stated that it had “working capital.” It referred to a March 2019 phone call between Nicklas and the principal’s banker about the principal’s personal finances. Fisk did not raise this argument before the district court, and it is therefore waived. See Jackson v. Parker, 627 F.3d 634 , 640 (7th Cir. 2010). No. 20-1868 23 principals were not inexperienced. 5 Therefore, Fisk has not negated Nicklas’s claim that it was inexperienced as a “con- ceivable” rational basis either. See Miller v. City of Monona, 784 F.3d at 1121 –22 (reasoning dismissal is warranted where “the complaint reveals a rational basis … for the actions of [the defendant]”). In sum, the only evidence to which Fisk points to support its position that Nicklas’s reasons were neither legitimate nor true is unavailing. Fisk does not refute any of Nicklas’s con- cerns about Fisk’s financial health or inexperience. The only thing lacking “logic, reason, and common sense” is Fisk’s con- voluted attempt to invalidate these justifications. Even failing to show a valid comparator, Fisk pushes for- ward, insisting that its class-of-one claim can proceed because it has alleged that Nicklas acted on animus flowing from the 2017 litigation. Fisk relies on our decision in McDonald to ar- gue that “the existence of a rational basis is not necessarily fatal” to its case. Specifically, Fisk points to our statement in McDonald that a plaintiff’s burden is an either–or proposition: either “there is no rational basis for the difference in treatment or the cause of the differential treatment is a ‘totally illegiti- mate animus.’” McDonald, 371 F.3d at 1001 (emphasis added). However, since McDonald we have clarified that “[i]t is only when courts can hypothesize no rational basis for the action that allegations of animus come into play.” Flying J, 549 F.3d at 547 . Thus, even assuming Nicklas had an ulterior motive, 5 Fisk’s broad statements that Nicklas’s stated reasons were “untrue” do not suffice here either. Although Fisk affirmatively argued that the princi- pals had experience for the first time during oral argument, it did not raise this argument before the district court or in its briefing on appeal, and it is therefore waived as well. See Jackson, 627 F.3d at 640 . 24 No. 20-1868 the finding of a rational basis is “the end of the matter—ani- mus or no.” Fares Pawn, 755 F.3d at 845 . Up to this point, Fisk has not adequately pleaded any of its claims. Fisk’s additional arguments relying on our deci- sions in Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and Swanson v. City of Chetek do not help Fisk because unlike this case, in those cases we did not find a legitimate basis for the state actors’ conduct. See Esmail, 53 F.3d at 179 –80 (reversing dismissal where “the unequal treatment is alleged to have been the result solely of a vindictive campaign by the mayor”); Swanson, 719 F.3d at 784 –85 (reversing in absence of alternative explanation for government actor’s facially illegit- imate, hostile conduct). Fisk’s allegations do not carry its burden to invalidate Nicklas’s rational basis for blocking the Development Incen- tive. Thus, the only way Fisk could proceed at this juncture would be to identify a sufficiently similar developer with “red flags” regarding its financial wherewithal and other deficien- cies. Fares Pawn, 755 F.3d at 848 . Fisk did not do so. Accord- ingly, nothing in the complaint “cause[s] us to question” Nicklas’s treatment of Fisk. See Sung Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828 , 833 (7th Cir. 2012). Fisk has therefore failed to state a violation of its Fourteenth Amendment equal protection rights. III. Conclusion For the foregoing reasons, we AFFIRM the opinion of the district court granting defendant’s motion to dismiss.

2021-01-26 22:02:30.463492+00

https://www.courts.ca.gov/opinions/nonpub/B297820.PDF

Filed 1/26/21 K.B. v. E.L. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO K.B., B297820 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BF034950) v. E.L., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Lawrence P. Riff, Judge. Affirmed. Law Office of Earl Robertson III and Earl Robertson III for Defendant and Appellant. Michelman & Robinson and Reuben A. Ginsburg for Plaintiff and Respondent. ______________________________  Appellant E.L. (father) appeals from a postjudgment order denying his request to modify custody and requiring him to complete reunification counseling before resuming visitation with his son (minor, born 2007). Finding no abuse of the family court’s discretion, we affirm. BACKGROUND I. The 2016 Judgment The family court entered judgment in this parentage case in 2016. Respondent K.B. (mother) was awarded sole legal and physical custody of minor. Father was entitled to visitation on specified Saturdays and Sundays. He was required to provide 48 hours’ advance written notice of his planned activities with minor for mother to advise of “any necessary health-related precautions relating to them.”1 Mother was to provide all meals and beverages for minor to consume during his visits with father; father was not to provide any additional food or beverages except for bottled water. Father could attend school or extracurricular events involving minor even if they occurred during mother’s custodial time. Father was also entitled to at least one 45-minute call with minor each week. Mother was required to provide written notice to father regarding all significant educational or health issues and to consult with him before making any significant decisions in those areas. 1 Minor has severe food and environmental allergies and also suffers from asthma and celiac disease. 2 II. Father’s Request for Order (RFO) to Modify Custody In March 2018, father filed an RFO to modify custody on the ground that mother had violated the 2016 judgment in numerous respects, including thwarting father’s visitation. Father sought primary physical custody of minor and joint legal custody. III. Hearing The hearing on father’s RFO to modify custody took place over the course of three days in January and March 2019. The family court heard testimony from father, mother, minor’s maternal grandmother, and minor’s maternal aunt.2 A family court services specialist who had interviewed minor also testified. She stated that minor had a “generally positive” perception of mother but a “generally negative” perception of father. Minor told her that he was scared of father because father had previously used his finger to flick the side of minor’s head, father sometimes followed them, and minor sometimes had the feeling that father would not bring him back. Minor stated, “I just don’t really want to see my father because he really stresses me out.” The specialist believed minor when he said that he felt stressed out, but she did not believe that minor was “truly frightened of father” or that father had “injured” or neglected him. 2 In May 2018, mother filed a request for a domestic violence restraining order (DVRO) against father. The family court denied mother’s request in November 2018, finding that she failed to carry her burden of proof. In deciding father’s RFO, the family court also considered evidence received in connection with mother’s DVRO request. 3  At the conclusion of the hearing, mother’s counsel argued that minor had severe health issues that father did not know how to handle. Minor felt comfortable and safe with mother and had a stronger emotional bond with her. Reunification with father in a clinical setting would be an appropriate way to allow minor to bond with father. Father’s counsel contended that mother’s violations of the 2016 judgment were designed to frustrate father’s parental rights and constituted a significant change of circumstances. When asked by the family court if a series of counseling sessions between father and minor would be a “[g]ood idea or bad idea[,]” father’s counsel stated: “I believe it’s a great idea . . . . I believe that counseling sessions could definitely benefit this bond because [minor] needs someone to talk to, and I am sure that [father] will benefit from being in that type of environment, and . . . maybe they’ll be able to better understand each other.” The family court took the matter under submission. IV. Ruling On March 21, 2019, the family court issued its ruling on father’s RFO to modify custody. A. Factual findings The family court found that both mother and father were “in violation of the judgment in various and serious particulars.” Mother’s violations were “more pervasive and severe than father’s” (fn. omitted), but both parents were “serial violators.” Mother had at times “improperly denied father visitation.” Mother had also failed to comply with the judgment’s requirements to keep father informed in writing of significant educational and health issues and to consult with him. 4  The family court agreed with father “that mother fe[lt] entitled to decide when and under what conditions father w[ould] see [minor] and that mother’s behavior in this regard [was] improper gatekeeping.” At other times, however, mother’s “refusal to permit visitation [was] justified on account of father’s failure to comply with the terms and conditions of the judgment.” The family court did not find that minor’s “health conditions are such that father cannot properly care for [him] during father’s periods of visitation.” It expressed concern, but did not find, that mother had occasionally “used ‘[minor’s] too sick’ as an excuse to deny father visitation.” It was also concerned, but did not find, “that father ha[d] been less than rigorous as to his responsibilities for his telephone/Skype time.” Finally, the family court found that the dispute between mother and father, as well as minor’s “reluctance to see his father[,] pose[d] a substantial danger to his best interests.” B. Orders The family court declined to modify legal or physical custody as set forth in the 2016 judgment. The family court ordered mother to obtain, and provide to father, reports from minor’s pulmonologist and allergist stating any limitations on activities necessary due to minor’s health conditions. Father was ordered to “conform his activities with [minor] to adhere” to those limitations. If mother denied father visitation “on account of an asserted health issue,” she was required to provide father with supporting documentation from a physician. The family court also ordered father and minor to engage in counseling sessions prior to the resumption of father’s visitation. The counselor was to first meet separately with father and minor 5 for a maximum of three sessions each. Father and minor were then to participate in a minimum of four conjoint sessions “with the goal of repairing their relationship.” V. Notice of Entry of Order A minute order dated March 21, 2019—the same day that the family court issued its order on father’s RFO—states: “The [c]ourt having taken the mat[t]er under submission on March 19, 2019, hereby rules as follows: [¶] The court makes its order pursuant to the Ruling on Submitted Matter signed and filed this date. [¶] Clerk is to give notice.” Directly below, on the same page, the following title appears in bold type: “CLERK’S CERTIFICATE OF MAILING/NOTICE OF ENTRY OF ORDER[.]” Immediately below that, the superior court clerk certified that it mailed the notice of entry of the minute order to mother and to father’s counsel on March 21, 2019. The address listed for father’s counsel is a post office box in Pasadena. VI. Appeal On May 21, 2019, father filed a notice of appeal from the family court’s March 21, 2019, order. DISCUSSION I. Timeliness of Appeal Father filed his notice of appeal 61 days after the superior court clerk mailed the notice of entry of the family court’s order. If the clerk’s mailing constituted proper service to father, father’s appeal would be one day late, requiring dismissal. (Cal. Rules of Court, rule 8.104(a)(1)(A), (b) & (e).) We invited the parties to submit letter briefs to address this issue. In his letter brief, father contends that the notice of entry was mailed to his counsel’s post office box in Pasadena even 6 though that address never appeared on documents filed in the family court.3 Mother fails to address this contention. The record supports father’s position. Because the notice of entry of order was not served to the address of record for father’s counsel, service was improper. (Code Civ. Proc., § 1013; Cal. Rules of Court, rule 8.104(a)(2).) Accordingly, father’s appeal is timely because it was filed within 180 days of the entry of the order. (Cal. Rules of Court, rule 8.104(a)(1)(C).) II. Denial of Father’s Request to Modify Custody Father contends that the family court abused its discretion by denying his request to modify custody. A. Standard of review We review a ruling on a request to modify child custody under the deferential abuse of discretion standard. (Ellis v. Lyons (2016) 2 Cal. App. 5th 404 , 415.) A “court abuses its discretion if there is no reasonable basis on which the court could conclude that its decision advanced the best interests of the child.” (Mark T. v. Jamie Z. (2011) 194 Cal. App. 4th 1115 , 1124.) B. Relevant law Once a permanent custody order is entered by a family court, “‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement.” (In re Marriage of Brown & Yana (2006) 37 Cal. 4th 947 , 956 (Brown & Yana).) A parent seeking to modify a permanent custody order must 3 Father speculates that the post office box address was obtained by the superior court clerk through a search of his attorney’s profile on the State Bar of California Web site. 7 “demonstrate[] ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (Ibid.) C. Analysis Given “the importance of stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds” (Burchard v. Garay (1986) 42 Cal. 3d 531 , 541), a strong presumption existed that the status quo should be preserved by denying father’s request to modify the custody arrangement set forth in the 2016 judgment. The family court could reasonably conclude that this presumption had not been rebutted and that it was in minor’s best interest to remain in mother’s sole physical and legal custody.4 Mother had great familiarity with minor’s health issues and strict dietary requirements, and minor had a generally positive perception of her compared to a generally negative perception of father. Under these circumstances, no abuse of discretion can be found. Attempting to resist this conclusion, father contends that the family court failed to properly weigh the evidence and he critiques its credibility determinations. “In reviewing the lower court’s ruling for abuse of discretion, we do not reweigh the evidence or evaluate the credibility of witnesses.” (Ryland Mews 4 The family court made no explicit finding regarding whether father had demonstrated a change of circumstances. It did not need to. Because father had the burden of showing that both a change of circumstances had occurred and that modifying custody would serve minor’s best interests (Brown & Yana, supra , 37 Cal.4th at p. 956), the family court could deny father’s request to modify custody based only on the conclusion that it was not in minor’s best interests. 8 Homeowners Assn. v. Munoz (2015) 234 Cal. App. 4th 705 , 712.) Those determinations are solely within the province of the trier of fact, here the family court. (As You Sow v. Conbraco Industries (2005) 135 Cal. App. 4th 431 , 454.) Father also argues that the family court’s refusal to modify custody cannot be reconciled with its factual findings that were adverse to mother. We disagree. The family court correctly recognized that mother’s violations of the 2016 judgment were a factor it could consider in determining whether to modify custody. (Jane J. v. Superior Court (2015) 237 Cal. App. 4th 894 , 907.) But it also correctly noted that such a factor had to “be seen in the context of the best interest of . . . minor.” The family court’s focus properly remained “on the best interests of [minor], and not on penalizing” mother. (In re Marriage of C.T. & R.B. (2019) 33 Cal. App. 5th 87 , 107.) III. Counseling Order Father also challenges the family court’s order requiring him to participate in counseling as a precondition to resuming visitation. We review for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal. 4th 249 , 255.) A. Relevant law Family Code section 3190, subdivision (a),5 provides that a family court “may require parents . . . and the minor child, to participate in outpatient counseling with a licensed mental health professional, . . . for not more than one year, . . . if the court finds both of the following: [¶] (1) The dispute between the parents[ or] between the parent or parents and the child . . . 5 All further statutory references are to the Family Code unless otherwise indicated. 9 poses a substantial danger to the best interest of the child. [¶] (2) The counseling is in the best interest of the child.” The family court must “set forth reasons why it has found both of the following: [¶] (1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child. [¶] (2) The financial burden created by the court order for counseling does not otherwise jeopardize a party’s other financial obligations.” (§ 3190, subd. (d).) B. Analysis In light of the animosity between mother and father, minor’s reluctance to see father, and minor’s expressed fear of father, the family court’s counseling order—with its express goal of repairing father and minor’s relationship—was eminently reasonable. Even father’s counsel told the family court that such sessions between father and minor would be “a great idea” and could benefit their relationship. Father contends that the family court failed to set forth reasons why it found that the dispute between mother and father posed a substantial danger to the best interests of minor, as required by section 3190, subdivision (d). The reasons for the finding are readily discernable from the record. The acrimonious relationship between mother and father and the stress it caused minor—a child already dealing with significant health issues— posed a substantial danger to his best interests. And, the family court impliedly found that this change of circumstances justified the counseling order to the extent it modified visitation. 10  Father also disputes the applicability of section 3190, arguing that it was intended for cases involving child abuse or neglect. He relies solely on In re Chantal S. (1996) 13 Cal. 4th 196 . But that case is inapposite, as it held that section 3190 does not apply to juvenile dependency cases. (In re Chantal S., supra , at p. 208.) DISPOSITION The order is affirmed. Mother is entitled to costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. _____________________, J. ASHMANN-GERST We concur: ________________________, P. J. LUI ________________________, J. CHAVEZ 11

2021-01-26 22:02:29.188112+00

https://www.courts.ca.gov/opinions/nonpub/C091500.PDF

Filed 1/26/21 P. v. Ferris CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE, C091500 Plaintiff and Respondent, (Super. Ct. No. CRF177922) v. STEVEN GEORGE FERRIS, Defendant and Appellant. In December 2017, Woodland police encountered defendant traveling in Yolo County in a vehicle that contained over 1,300 grams of methamphetamine. Officers tracked the vehicle as it moved between Alameda County and Yolo County, passing through other counties along the way. In December 2019, and in exchange for the dismissal of all other allegations in a March 2018 information, defendant pled no contest to one count -- transportation for sale of a controlled substance from one county to a noncontiguous county. In January 2020, and consistent with the terms of the negotiated disposition, the trial court imposed a sentence of six years (the middle term) to be served in county 1 prison. The trial court also ordered defendant to pay a $40 court operations assessment and a $30 conviction assessment. The trial court calculated five days of credit toward his sentence. Defendant appealed. DISCUSSION We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal. 3d 436 .) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the record, we find an error that must be corrected. The trial court did not dismiss the remaining counts and enhancements as contemplated by the parties’ agreement. We will modify the judgment to dismiss those allegations. (Pen. Code, § 1260; see People v. Mancheno (1982) 32 Cal. 3d 855 , 860- 861.) Pursuant to Wende, we find no other arguable error that would result in a disposition more favorable to defendant. DISPOSITION The judgment is modified to dismiss count 1 and count 2 and all enhancements alleged. As modified, the judgment is affirmed. /s/ Robie, J. We concur: /s/ Raye, P. J. /s/ Murray, J. 2

2021-01-26 23:12:11.648636+00

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EZZELL v. LACK Skip to Main Content Accessibility Statement OSCN Found Document:EZZELL v. LACK Previous Case Top Of Index This Point in Index Citationize Next Case Print Only EZZELL v. LACK 2021 OK 5 Case Number: 119220 Decided: 01/26/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 5, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE: PETITION TO RECALL WARD THREE CITY COMMISSIONER BEN EZZELL SUBMITTED TO THE CITY OF ENID ON AUGUST 4, 2020, BEN EZZELL, Plaintiff/Appellant, v. ALISSA LACK, CITY CLERK, CITY OF ENID, OKLAHOMA, and GEORGE PANKONIN, MAYOR, CITY OF ENID, OKLAHOMA; Defendants/Appellees, AND KEITH SIRAGUSA, HEATHER WHITE, TY ATKINSON, BRIAN HENRY, & JENNIFER HENRY, Intervenors. APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY Honorable Allison Lafferty, Trial Judge ¶0 Voters in the City of Enid presented a recall petition to City of Enid officials. The petition sought to recall the plaintiff/appellant, City Commissioner, Ben Ezzell, for his support of a city wide mask mandate to combat the COVID epidemic. Ezzell filed an objection to the recall petition in the District Court of Garfield County. The City of Enid City Charter, Part D, Art. II, §6 applies state general election laws to city elections, unless the state laws conflict with the charter provisions. Ezzell alleged that because the recall petition did not comply with the requirements of 34 O.S. 2011 §3 and 34 O.S. Supp. 2015 §6 which relate to signature collection, the recall petition was insufficient. After a hearing, the trial court denied Ezzell's protest and determined that the petition was sufficient under the City Charter of Enid recall process. Ezzell appealed, and we retained the cause to determine whether these state statutes are applicable to this cause, and if so, whether the failure to follow them rendered the recall petition insufficient. We hold that: 1) because there is no conflict between the City Charter recall process, and the additional state requirements, 34 O.S. 2011 §3 and 34 O.S. Supp. 2015 §6, the state statutes governed, but were not properly followed; and 2) the recall petition is insufficient on its face pursuant to Clapsaddle v. Blevins, 1998 OK 5, 66 P.3d 352, and its predecessors. CAUSE PREVIOUSLY RETAINED; TRIAL COURT REVERSED. David M. Collins, Enid Oklahoma, for Appellant. Tony G. Puckett, Oklahoma City, Oklahoma, for Appellees. Stephen Jones, Gabriel Dunbar, William Jewell, Enid, Oklahoma, for Intervenors. KAUGER, J.: ¶1 This cause concerns the review of the trial court's denial of a protest which challenges the sufficiency of a petition to recall an elected City of Enid City Commissioner, and the applicability of state statutes to the City's election recall process. In Clapsaddle v. Blevins, 1998 OK 5, ¶14, 66 P.3d 352, we held that city recall measures are governed by state statutory provisions for initiative and referendum. However, only the publication notice provisions of 11 O.S. 2011 §15-1041 were at issue in Clapsaddle, supra. The City of Enid City Charter, Part D, Art. II, §6 directs the application of state general election laws to city elections, unless the state laws conflict with the charter provisions.2 Today, we are asked to determine the extent to which other state statutory provisions are applicable to this cause. ¶2 We hold that because there is no conflict between the City Charter recall process, and the additional state requirements of 34 O.S. 2011 §3 and 34 O.S. Supp. 2015 §6, the state statutes governed, but were not properly followed. The recall petition is insufficient on its face pursuant to Clapsaddle v. Blevins, 1995 OK 5, 66 P.3d 352, and its predecessors. FACTS/PROCEDURAL HISTORY ¶3 On February 12, 2013, voters of the City of Enid, Oklahoma (COE), elected the plaintiff/appellant, Ben Ezzell (Ezzell/Commissioner), to represent Ward Three of COE. Ezzell ran unopposed for the same seat four years later and won. He is term-limited, and his term expires on May 3, 2021. Two hundred and four alleged Ward Three, COE voters signed a recall petition which organizers filed with the COE Clerk's office on August 4, 2020, in an attempt to recall Ezzell from his elected position.3 The voters were upset that Ezzell supported a mask mandate for the COE, and that he wanted to follow the Center for Disease Control Guidelines. ¶4 The signature collectors signed a signature page stating that "the signatures were known to me, at their home at the time of signing, verified through the okvoterportal.okelections.us, or stated that they were a registered voter in Enid Ward 3." A notary then notarized the collector's signature. On August 4, 2020, the City Clerk sent a letter to the signature collectors notifying them that the petition was insufficient. The problem was that the City Clerk had read in the newspaper that some of the signatures were not, in fact, collected at the voters' homes, thus rendering the notarized affirmations of the signature collectors inaccurate. The circulators confirmed that what the Clerk read in the newspaper was true. ¶5 The City Clerk suggested two alternative options to correct the problem: 1) have the signatories check photo identification cards, and resubmit the petition with a statement that the photo identification cards were checked; or 2) the clerk could determine whether there were sufficient Ward Three voters' signatures included, and those signatures can be verified by checking photo identification of those who signed. ¶6 The City Attorney also informed the circulators that the petition needed to be amended, and that the circulators needed to identify which voters they knew personally, versus which voters signed in their home. In a supplemental signature page notarized on August 5, 2020, the signature collectors identified whether the voter was known to them personally, or whether they collected the voter's signature at the voter's home. The supplemental information was added to the original petition. There was no indication that any photo identifications had been checked. After conferring with the City Attorney, the City Clerk on August 7, 2020, deemed the recall petition sufficient to proceed to election. The City Clerk noted that, although the best method for ascertaining identity is to check an identification card with a photo which also includes a signature of the person, the COE Charter did not expressly require a check. ¶7 The Clerk also noted that signature collectors' affirmation statements were unclear because they did not contain written affirmations which indicate that the statements in the petition were actually true. Nevertheless, they were notarized, and thus assumed to be truthful, and implicitly clear that the circulators believed the statements contained in the petition provided reasons for the recall. The Enid News & Eagle published notice of the recall petition on August 11, 2020. ¶8 On August 17, 2020, the Commissioner filed an Objection and Protest to recall petition in the District Court of Garfield County. According to Ezzell, the problems with these particular recall signature collections were that they did not include a voter warning as required by state statute 34 O.S. 2011 §3.4 Furthermore, the circulators did not check photo identifications when collecting signatures, verifying the name, mailing address, and date of birth associated with his or her Oklahoma voter registration record required by 34 O.S. Supp. 2015 §6.5   ¶9 On August 17, 2020, the trial court, pursuant to 11 O.S. 2011 §15-104,6 set Ezzell's challenges for a hearing on September 8, 2020, which was later continued to October 6, 2020. On September 4, 2020, the COE Mayor and City Clerk filed an answer to Ezzell's Objection to the recall petition. They admit that the deadlines for filing recall petitions are governed by state statutes, but argue that neither our prior decisions, nor any other state statutes are applicable to this cause, and that the recall petition was sufficient. They insist that the recall petition is sufficient because it contained the requisite number of signature of registered voters from Ward Three, and that the City Clerk properly performed her role in the process without acting arbitrarily, fraudulently, or capriciously.   ¶10 On September 11, 2020, a group of citizens known as the Enid Freedom Fighters petitioned the trial court to intervene in this cause in support of the sufficiency of the recall petition. On November 19, 2020, the trial court allowed intervention. It also determined that the recall petition was sufficient and permitted the election which is set for February 9, 2021, to proceed. ¶11 The trial court's ruling was due, in part, to its restrictive application of our decision in Clapsaddle, supra, which held that city recall measures are governed by state statutory provisions for initiative and referendum. The trial court also stated that "without more specific direction from the Oklahoma Supreme Court," it would not apply Clappsaddle, supra, beyond the confines of the applicability of 11 O.S. 2011 §15-104,7 to the City's recall election process, even though "Ezzell makes a compelling argument to do so." ¶12 On November 25, 2020, the Commissioner appealed. We retained the cause on December 1, 2020. After the briefing cycle was complete, the cause was assigned on January 11, 2021, to this chamber. I. BECAUSE THERE IS NO CONFLICT BETWEEN THE CITY CHARTER RECALL PROCESS, AND THE ADDITIONAL STATE REQUIREMENTS OF 34 O.S. 2011 §§3 AND 6, THE STATE STATUTES GOVERNED, BUT WERE NOT PROPERLY FOLLOWED. THE RECALL PETITION IS INSUFFICIENT ON ITS FACE PURSUANT TO CLAPSADDLE v. BLEVINS, 1998 OK 8, 66 P.3d 352, AND ITS PREDECESSORS. ¶13 The COE argues that: 1) the City Clerk properly determined the recall petition sufficient pursuant to the requirements of the City Charter; and 2) the only state statutory proceeding applicable to this cause, which was also properly followed, is 11 O.S. 2011 §15-104.8 Ezzell argues that pursuant to Clapsaddle v. Blevins, supra, 34 O.S. 2011 §3 and 34 O.S. Supp. 2015 §69 also supplant the City Charter recall provisions; and because these statutes were not also followed, the petition is insufficient, thus abrogating the scheduled recall election. A. The COE City Charter and State Statutory Election Procedures. ¶14 The COE adopted a charter, and it is operating under a charter form of government.10 Although this was not raised by the parties,11 the COE City Charter expressly recognizes the applicability of all of the general provisions of the state election statutes to all COE election proceedings. It provides in Part D, Article II, Sections 6 and 7 that: Section D.2.6. Applicable Laws. All provisions of the general election laws of the state of Oklahoma, where applicable, and except where the same would be in conflict with the provisions herein made, shall apply to all municipal elections held in the city of Enid. [Ord., 1-4-1947] Section D.2.7. Alternative Laws. In the event that the foregoing provisions or any of them should be for any reason held void or for any reason shall become inoperative, then the election laws of the state of Oklahoma shall govern all elections for municipal officers within the city of Enid insofar as said special provisions fail. [Ord., 1-4-1947] The COE City Charter also expressly addresses a recall election process for a city official in Part A, Article VII, Section 7.12 The most relevant provisions to thiscause are: the procedure for recall; the signature verification process; and the City Clerk's approval of the petition's sufficiency. ¶15 The Charter's procedure for the recall is as follows: 1) the petition must be signed by qualified electors entitled to vote for a successor to the incumbent sought to be removed; 2) the number of signature must equal at least thirty (30) per centum of the vote of those that voted for the particular ward commissioner; and 3) the petition shall be filed with the City Clerk, and it shall contain a general statement of the grounds and charges for which the removal is sought.13 With regard to signatures, all that is required by the charter is that each signer shall provide their place of residence, including the street and number, and on each page of signatures, one signer shall make an oath before an officer competent to administer oaths that the statements therein made are true, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. Finally, the City Clerk has ten days to determine the petition sufficient and to submit it to the Mayor and Commission. ¶16 Various state statutory provisions concerning elections are found in Title 11 Cities and Towns, and Title 26 Elections, including those addressing initiative and referendum powers and procedures in Title 34 Initiative and Referendum. Title 11 O.S. 2011 §§15-101-110 generally covers municipal initiative and referendums while §§16-101-114 govern municipal elections. These provisions of Title 11 are generally reserved for those cities and towns which have not set out the election process through ordinance or city charter.14 Title 26 generally covers State, County, and Municipal elections as well. The Municipal provisions are found in §§13-101-111.15   ¶17 Title 34 O.S. 2011 §§1-27 governs the initiative and referendum election process for the State. We need not discuss every provision of these titles because they neither appear to be applicable to this cause, nor were they raised by the parties as controlling. However, those which have been determined or argued to be applicable to recall elections such as the one involved in this cause, we discuss as part of our examination of the controlling case law.   B. Clapsaddle v. Blevins And Its Predecessors. ¶18 Recall elections constitute constitutionally sanctioned methods for the people to intervene in the affairs of government. They are intended to give the electorate the opportunity to participate directly in the lawmaking process, and to serve as a check upon the conduct of officeholders.16 ¶19 Dunham v. Ardery, 1914 OK 418, 143 P. 331, tested this principle shortly after statehood and addressed whether cities had the authority to hold recall elections. In Dunham, the City of Guthrie operated under a charter form of government.17 The Guthrie charter provided for the removal of any elected official by recall at any time. It also provided a simple procedure for recall which: included the necessity of signatures from more than 35% of the votes cast at the preceding election; required the signer to include their place of residence, including the street and number; and outlined the City Clerk certification duties as to the petition's sufficiency before the recall was submitted to the voters. ¶20 The contention in Dunham, supra, was18 that a city charter which provides a method of recall for city officers, conflicted with the state Constitution which required the state Legislature to set forth the process. The Court held that if it were not intended under our Constitution to give cities adopting the charter form of government the power and right to put into practice the power to recall their officers, then there would have been an inhibition and there was no such inhibition. Rather, the underlying principle of the recall doctrine is to permit the people to expeditiously recall an official, without form or ceremony, except as provided for in the charter. Accordingly, there was no conflict with the state Constitution. ¶21 Another contention Dunham, supra, addressed was the standard which the Court would apply to review the determination of a City Clerk who has determined a recall petition to be sufficient under the terms of the charter. The Court determined that the clerk was vested with a discretionary and a quasi judicial power to determine whether a petition was sufficient. Consequently, the Court held that in the absence of fraud or arbitrary action, a clerk's decision is conclusive on the Courts.19   ¶22 Subsequent decisions applied a different rule to municipalities which were either not organized under a charter form of municipal government, or the charter which they were organized under did not provide for an initiative, referendum, or recall process. Those cities were required to follow the procedures prescribed by the laws for the state at large. For example, in In re Initiative Petition No. 2 Cushing Oklahoma v. Harlow, 1932 OK 124, 10 P.2d 271, the Court addressed the process municipal voters must follow when their city did not, by ordinance or charter, provide for the manner of exercising the initiative and referendum process.   ¶23 In Harlow, supra, City of Cushing voters circulated an initiative petition to approve or disapprove a franchise to a power company. The City of Cushing operated under a charter which apparently did not provide for a specific initiative and referendum process. The Court in ¶19 said: . . . it appears to us that it was clearly the intention of the framers of the Constitution, and the people in adopting the same, and of the Legislature in enacting laws to vitalize the provisions of the Constitution, and to prevent corruption in making, procuring, and submitting initiative and referendum petitions, that the procedure to determine the sufficiency of the petition and the form of ballot title should be speedily determined in order that the will of the people, if the petitions were found to be sufficient and free from corruption, should be carried into force and the qualified electors permitted to vote upon the proposition in accordance with the initiative petitions and the proposed law, constitutional amendment, or other measure proposed to be submitted to the qualified electors for their vote upon the same. . . . We determined that state Constitutional and statutory initiative and referendum provisions prescribe the method of procedure for submitting and voting for all cities which do not provide by ordinance or charter the manner of exercising the and referendum powers reserved to the people of this State. The duties required by the Governor and Secretary of State as to state legislation were substituted by the City's chief executive officer and chief clerk of such city. ¶24 In Community Gas and Service Co. v. Walbaum, 1965 OK 118, 404 P.2d 1014, the Town of Hinton, Oklahoma, was not organized under a charter form of municipal government. Consequently, when an initiative petition which proposed granting a natural gas distribution company a franchise was challenged as insufficient to submit to the voter, the Court held that the procedure prescribed by the law for the state at large governs the initiation of municipal legislation. ¶25 At issue in Walbaum, supra, was the application of the same statute the Commissioner in this cause relies. Title 34 O.S. O.S. 1961 §3. Section 3 required an outer page with a warning clause informing the signatory of the penal sanctions imposed by law for placing duplicate, false, or fraudulent signatures or for signing the petition by one who was not a legal voter. The question before the Court was whether the omission of such a warning clause was fatal to the validity of the initiative petition. The Court said: ¶7 The evident purpose of the warning clause required by our statute is to keep the petition free from the taint of duplicate, false, fraudulent and unauthorized signatures. The warning clause is just as essential to guard against and prevent fraud, deception or corruption of the initiative and referendum process as are such other indispensable requirements of the statute as (1) the pre-circulation filing of a copy of the petition required by 34 O.S. 1961 §8; In re Referendum Petition No. 1, City of Guymon, supra; Whitson v. City of Kingfisher, 176 Okl. 145, 54 P.2d 616; (2) timely post-circulation filing of the petition in compliance with 34 O.S. 1961 § 8 ; State ex rel. Hunzicker v. Pulliam, 168 Okl. 632, 37 P.2d 417, 96 A.L.R. 1294; Foster v. Young, 149 Okl. 19, 299 P. 162; and (3) the execution of a circulator's verification prescribed by 34 O.S. 1961 § 6 . In re Initiative Petition No. 23, etc., 35 Okl. 49, 127 P. 862, 864; In re State Question No. 138, etc., 114 Okl. 285, 244 P. 801; In re Referendum Petition No. 35, etc., 78 Okl. 47, 186 P. 485. . . . ¶8 While clerical and technical defects in an initiative petition may and should be disregarded, 34 O.S. 1961 § 24, a material departure from the statutory form renders an initiative petition ineffective and void. In re Initiative Petition No. 9 of Oklahoma City, 185 Okl. 165, 90 P.2d 665, 668. If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal. Walbaum, supra, also noted that application of the voter verification process of §6 was just as indispensable as §3's warning clause. Accordingly, the Court held that the initiative petition was invalid on its face and that the municipal clerk may declare it insufficient for submission for a vote. ¶26 The teachings of Dunham, supra, Harlow, supra, and Walbaum, supra, and their progeny, culminated in our decision in Clapsaddle v. Blevins, 1998 OK 5, 66 P.3d 352. Clapsaddle, supra, involved a challenge to recall certain Del City officials. Del City operates under a city charter and the city charter provided a procedure for recall elections. Pursuant to the charter, the recall petitions were filed with the city clerk who certified their sufficiency. The City Council scheduled the recall election and the clerk published notice in the local newspaper. ¶27 Those affected by the recall measure petitioned the district court, alleging that: the recall petitions did not bear sufficient signatures; they were defective on their face; and the election date was invalid because it was set beyond the time limit prescribed by the city charter. Ultimately, the trial court ordered that the election be canceled because it was impossible for the clerk to ascertain the sufficiency of signatures due to the unascertainable total number of qualified electors. ¶28 The conflict in Clapsaddle, supra, was that the provisions of 11 O.S. 1991 §15-104, which regulated the state procedure to be followed when an initiative or referendum petition is filed with a municipal clerk, prescribed different time limits than the city charter. For the first time, we held that the terms of 11 O.S. 2011 §15-104 provide the exclusive procedure for contesting the sufficiency of a recall petition.20 We said that: ¶13 Initiative, referendum and recall elections all constitute constitutionally sanctioned methods for popular intervention in the affairs of government, which are intended to give the electorate an opportunity to participate directly in the law-making process and a check upon the conduct of officeholders. State v. Pulliam, 165 Okl. 70, 25 P.2d 64 (1933), In re Initiative Petition No.2 of Cushing, 157 Okl. 54, 10 P.2d 271, 275 ( 1932). All three measures -- initiative, referendum and recall -- must hence be treated as falling under the same procedural rubric. ¶14 The terms of § 15-104 provide the exclusive procedure for contesting the sufficiency of a recall petition. Before the enactment of 11 O.S. § 15-104 in 1978, there was no state procedure for challenging in the district court the clerk's determination of the sufficiency (or insufficiency) of a recall petition. City Council of the City of McAlester v. Milwee, 31 Okl. 60, 122 P. 173 (1912), Dunham v. Ardery, 43 Okl. 619, 143 P.2d 331 (1914). Neither does the Del City charter provide a contest procedure. ¶29 We also said that: 1) the burden rested on the challengers to show that the recall petitions are unsupported by a sufficient number of signature;21 2) signatures on the recall petitions are presumed to be those of qualified voters;22 and 3) the challenger must also show that the actions of the city clerk are arbitrary, fraudulent and capricious.23 Because the challengers had not shown that the clerk acted arbitrarily or fraudulently, we held that the trial court erred in canceling the election. ¶30 Another concern addressed in Clapsaddle, supra, which is controlling here, is the extent to which a state statute controls over a city charter. The Del City Charter provided that a recall election must be scheduled between 30 and 40 days from the passage of the resolution calling for the election. However, 26 O.S. Supp. 1993 §13-102,24 the statute in effect at the time, called on a municipality to submit a resolution to the county election board not fewer than 60 days before a special election is to be held. The scheduling of the election complied with the statutory mandates, but was not in accord with the city's charter. ¶31 The Court held that the state statute controlled. In paragraph 28, we said: A city charter will control over a contrary state statute only when the matter at hand is one of purely local concern. The setting of a special municipal election, which must be conducted by the county election board under the oversight of the State Election Board, is not a matter of local concern. It is clear that, as the Secretary of the Oklahoma County Election Board testified at length, the election board requires a minimum of 60 days to prepare adequately for an election. State law will on this point supplant nonconforming city law. Simpson v. Dixon, 1993 OK 71, 853 P.2d 176, 183-187. ¶29 Aside from the practical reasons why the holding of a municipal election is a matter of state, rather than local, concern, the State also has a vital interest in providing the people with a corruption-free regime for elections to be held upon initiative, referendum and recall measures. Oklahoma's legislature is required to pass laws that would prevent both fraud and corruption from clouding the process by which popular will is to be expressed. Art. 5 § 8, Okl. Const. The provisions of 26 O.S. § 13-102 are clear-[66 P.3d 359]-ly designed to ensure orderly and corruption-free conduct of vital municipal elections. ¶32 Both 34 O.S. 2011 §325 and 34 O.S. Supp. 2015 §626 are expressly aimed at ensuring that the persons: 1) who provide their signature, name, and address as a qualified voter living within the qualified voting area, are who they say they are; 2) have been verified as such by the signature collectors of the recall ballot; and 3) have been properly warned of the consequences of providing false information. Nothing in these statutes expressly conflict with the COE City Charter recall provision. Rather, the statutes merely impose additional measures, further ensuring the sanctity of the election process, as well as the veracity and validity of the voters. ¶33 Dunham, supra, held that city could via city charter provide for a recall process. Harlow, supra, held that when a city charter does not provide such a process, the state initiative and referendum process governs. Walbaum, supra, held that when the purpose of a statutorily required warning was to keep the petition free from the taint of duplicate, false, fraudulent and unauthorized signatures, the omission of such a warning clause was fatal to the validity of the initiative petition. Clapsaddle, supra, held that even when a city charter has a recall election process, but no procedure to challenge the recall petition, state statutes apply. It also held that the State has a vital interest in providing the people with a corruption-free regime for elections to be held on recall matters and certain state statutes control because the election was beyond a purely local concern. ¶34 The Oklahoma Constitution provides that any city with a population of more than 2,000 may establish a city charter for its governance.27 There are eighty-six cities with a charter form of government and 508 non-charter governments.28 There has been a longstanding effort to reconcile the functions and processes of charter and non-charter governments with the general law of the state of Oklahoma in order to provide a commonality of experience and government access for all citizens of Oklahoma. None of our previous cases are individually dispositive of this cause. Nevertheless, the holdings of Dunham, supra, Harlow, supra, Walbaum, supra, and Clapsaddle, supra, cumulatively require 34 O.S. 2011 §3 and 34 O.S. Supp. 2015 §66 to be applied to this cause and should have been followed. ¶35 Pursuant to Walburn, supra, the recall petition was invalid on its face because a statutory provision which is essential to guard against fraud, corruption and deception in the election process must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal. The COE City Charter expressly makes general election statutes, which are aimed at corruption-free elections, applicable.29 In this cause, there was no conflict with the state statutes, they merely add additional safeguard measures to ensure a fair and corruption-free election. The trial court erred in allowing the recall election to proceed and must be reversed. CONCLUSION ¶36 The same general procedure which applies to initiative petition, and referendum, also controls municipal recall elections.30 As a matter of public policy, once an election occurs, the Court usually indulges every presumption in favor of its validity.31 Where possible, the validity of an election will be sustained, and an election which is not clearly illegal will be upheld.32 Generally, in the absence of fraud or corruption, and in the presence of merely statutory informalities, the results of the election will not be invalidated.33 This rationale is premised on the interest the electorate has in having its votes count, and the expense involved in conducting a second election.34 ¶37 It is well-settled that, where possible, the validity of an election quest will be judicially upheld.35 The burden to challenge the sufficiency of a recall after an election has occurred is quite high. However, because we do engage in such presumptions, the Court is compelled to correct any fatal flaws before an election occurs. We must do so to ensure orderly and corruption-free conduct which is vital to municipal elections and vital to giving the electorate the opportunity to participate in the law-making process. The trial court is hereby reversed. ¶38 Any petition for rehearing shall be filed no later than 5:00 p.m. on Friday, January 29, 2021. CAUSE PREVIOUSLY RETAINED; TRIAL COURT REVERSED. DARBY, C.J., KAUGER, EDMONDSON, COMBS, GURICH, JJ., concur; KANE, V.C.J, concurs in result, (by separate writing); WINCHESTER., (by separate writing) and ROWE, J.J., dissent; COLBERT, J., not present. FOOTNOTES 1 Title 11 O.S. 2011 §15-104 provides: A. When signed copies of a petition are timely filed with the clerk, the clerk shall make a physical count of the number of signatures appearing on the petitions. He shall then publish, in at least one (1) newspaper of general circulation in the municipality, a notice of the filing and the apparent sufficiency or insufficiency of the petition. The notice shall also state that any qualified elector of the municipality may file a protest to the petition or an objection to the count made by the clerk. B. A protest to the petition or the count of signatures shall be filed in the district court in the county in which the situs of the municipality is located within ten (10) days after the publication. Written notice of the protest shall be served upon the clerk and the parties who filed the petition. In the case of the filing of an objection to the count, notice shall also be served upon any party filing a protest. The district court shall fix a day, not less than ten (10) days after the filing of a protest, to hear testimony and arguments for and against the sufficiency of the petition. A protest filed by anyone, if abandoned by the party filing it, may be revived within five (5) days by any other qualified elector. After the hearing, the district court shall decide whether such petition is in form required by law. 2 Enid City Charter, Part D, Art. II, Section 6 provides: All provisions of the general election laws of the state of Oklahoma, where applicable, and except where the same would be in conflict with the provisions herein made, shall apply to all municipal elections held in the city of Enid. [Ord., 1-4-1947] 3 The stated purpose of the recall was as follows: -- Conduct unbecoming to an elected official. -- Dividing our community by threatening use of force and advocating fines against law abiding, healthy citizens. -- Disrespecting our police department and failing to heed the advice of our police chief. -- Showing disregard for the law by asking the Enid City Council to pass mandates with preconceived plans to change them once in place. -- Subverting the will of the people in favor of his own arbitrary opinion. -- Dismissive of his constituents' views. -- Generally abusing public trust. There is also evidence in the record that in addition to their concern with Ezzell's position on a mask mandate, the voters were also concerned that Ezzell had a personal agenda to have the City Commission directly oversee the police department. It appears this oversight is also tied to a mask mandate, and the potential enforcement thereof. 4 Title 34 O.S. 2011 §3 provides: Each initiative petition and each referendum petition shall be duplicated for the securing of signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheets for signatures is hereinafter termed a pamphlet. On the outer page of each pamphlet shall be printed the word "Warning", and underneath this in ten-point type the words, "It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter". A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. Not more than twenty (20) signatures on one sheet on lines provided for the signatures shall be counted. Any signature sheet not in substantial compliance with this act shall be disqualified by the Secretary of State. The statute was amended November 1, 2020, with non-substantive changes. It provides: Each initiative petition and each referendum petition shall be duplicated for the securing of signatures. The Secretary of State shall design a form, subject to change, for signatures that shall be used by proponents of initiatives or referendums when collecting signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheets for signatures is hereinafter termed a pamphlet. On the outer page of each pamphlet shall be printed the word "Warning", and underneath this in ten-point type the words, "It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter." A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. 5 Title 34 O.S. Supp. 2015 §6 provides in pertinent part: Each sheet of every such petition containing signatures shall be verified on the back thereof, in substantially the following form, by the person who circulated said sheet of said petition, by his or her affidavit thereon and as a part thereof. . . . I, ______, being first duly sworn, say: That I am at least eighteen (18) years old and that all signatures on the signature sheet were signed in my presence; I believe that each has stated his or her name, mailing address, and residence correctly, and that each signer is a legal voter of the State of Oklahoma and county of ______ or of the city of ______ (as the case may be). (Signature and mailing address of affiant.) The statute was amended November 1, 2020, with non-substantive changes. It provides in pertinent part: Any person who circulates a sheet of said petition shall verify the signatures included on any signature sheets he or she circulates by executing his or her affidavit thereon and as a part thereof. The Secretary of State shall cause to be affixed onto the back of the signature form an affidavit, subject to change, for the circulator to verify the signatures. . . . I, ______, being first duly sworn, say: That I am at least eighteen (18) years old and that all signatures on the signature sheet were signed in my presence; I believe that each has stated his or her name, mailing address, and date of birth associated with his or her Oklahoma voter registration record, and that each signer is a legal voter of the State of Oklahoma and county of ______ or of the city of ______ (as the case may be). (Signature and complete address of affiant.) Subscribed and sworn to before me this ________ day of ________ A.D. 20__. (Signature and title of the Oklahoma notarial officer before whom oath is made, and his or her complete address, commission number and expiration date, and official Oklahoma notary public seal.) 6 Title 11 O.S. 2011 §15-104, see note 1, supra. 7 Title 11 O.S. 2011 §15-104, see note 1, supra. 8 Title 11 O.S. 2011 §15-104, see note 1, supra. 9 Title 34 O.S. 2011 §3, see note 4, supra, 34 O.S. Supp. 2015 §6, see note 5, supra. 10 The Charter of the City of Enid was adopted by the city at an election held on September 27, 1909, and approved by the Governor of the State of Oklahoma on October 2, 1909; it became effective on December 20, 1909. The voters have amended the Charter by Ordinances various times. In 1947, amendments relating to elections were also adopted as Part D. 11 Title 12 O.S. 2011 §2201 provides: A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States. B. Judicial notice may be taken by the court of: 1. Private acts and resolutions of the Congress of the United States and of the Legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state or the United States; and 2. The laws of foreign countries. C. The determination by judicial notice of the applicability and the tenor of any matter of common law, constitutional law or of any statute, private act, resolution, ordinance or regulation shall be a matter for the judge and not for the jury. 12 Part A. Article VII, Section A.7.7 provides: The holder of any elective office may be removed at any time by the electors qualified to vote for a successor of such incumbent. The procedure to effect the removal of an incumbent of an elective office shall be as follows: A petition signed by electors entitled to vote for a successor to the incumbent sought to be removed, equal in number to at least thirty (30) per centum of the vote of those that voted in the particular ward for commissioners if the recall is for a commissioner or thirty (30) per centum of all those who voted for the office of the Mayor if the recall is for the Mayor at the last preceding general municipal election, demanding an election of a successor of the person sought to be removed shall be filed with the City Clerk, which petition shall contain a general statement of the grounds and charges for which the removal is sought. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths that the statements therein made are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. Within ten (10) days from the date of filing such petition the City Clerk shall examine and from the voters' register ascertain whether or not said petition is signed by the requisite number of qualified electors, and, if necessary, the Council shall allow him extra help for that purpose; and he shall attach to said petition his certificate, showing the result of said examination. If by the Clerk's certificate the petition is shown to be insufficient, it may be amended within ten (10) days from the date of said certificate. The Clerk shall, within ten (10) days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the same without prejudice, however, to the filing of a new petition to the same effect. If the petition shall be deemed to be sufficient, the Clerk shall submit the same to the Mayor and Commissioners without delay. If the petition shall be found to be sufficient, the Council shall order and fix a date for holding the said election, not less than thirty (30) days nor more than forty (40) days from the date of the Clerk's certificate to the Mayor and Commissioners that a sufficient petition is filed. The Mayor and Commissioners shall make, or cause to be made, publication of notice and all arrangements for holding such election, and the same shall be conducted, returned and the result thereof declared, in all respects as are other city elections. The successor of an officer so removed shall hold office during the unexpired term of his predecessor. Any person sought to be removed may be a candidate to succeed himself, and unless he requests otherwise in writing, the Clerk shall place his name on the official ballot without nomination. In any such removal election, the candidate receiving the highest number of votes shall be declared elected. At such election if some other person than the incumbent receives the highest number of votes the incumbent shall thereupon be deemed removed from the office upon qualification of his successor. In case the party who receives the highest number of votes shall fail to qualify, within ten (10) days after receiving notification of election, the office shall be deemed vacant. If the incumbent receives the highest number of votes, he shall continue in office. The same method of removal shall be cumulative and additional to the methods heretofore provided by law. No recall petition shall be filed against any officer until he has actually held his office for at least six (6) months. 13 Part A, Article VII, Section A.7.7, see note 12, supra. 14 Title 11 O.S. 2011 §15-102 provides: The procedure in municipalities which do not provide by ordinance or charter for the manner of exercising the initiative and referendum powers shall be governed by the Oklahoma Constitution and general state law, except as otherwise provided in Sections 11-15-101 through 11-15-110 of this title. The duties required of the Governor by state law shall be performed by the mayor; the duties of the Secretary of State shall be performed by the municipal clerk; and the duties of the Attorney General shall be performed by the attorney for the municipality. The procedure for initiative and referendum as to municipal legislation shall be as nearly as practicable the same as those for measures relating to the people of the state at large. Title 11 O.S. 2011 §16-102 provides in pertinent part: A. The provisions of Section 16-101 et seq. of this title shall not apply to any municipality which is governed by charter; provided, that elections for such municipalities which shall be conducted by the county election board shall be scheduled only on an election date identified by subsection B of Section 3-101 of Title 26 of the Oklahoma Statutes. However, such a municipality may, by indicating in its resolution calling an election, choose to follow any provision of state law governing elections conducted by a county election board when the municipality's charter or ordinances are silent on the matter addressed by such provision. In such instance, if the municipal election or any substantial portion thereof is not conducted by a county election board, the duties required of the county election board or its secretary shall be performed by the municipal authority designated by the municipal governing body and nothing herein shall be construed to require the county election board to perform any such duties. The residency requirements of Sections 16-109 and 16-110 of this title shall apply to all municipalities except to the extent that such residency requirements are governed by municipal charter. . . . 15 Title 26 O.S. 2011 §§13-101-111. Section 13-101 provides: All municipal elections conducted in the State of Oklahoma shall be conducted by the county election board of the county wherein said municipality's central offices are located, unless otherwise provided by law. 16 Clapsaddle v. Blevins, 1998 OK 5, ¶12, 66 P.d 352; State v. Pulliam, 1933 OK 480, ¶15, 25 P.2d 64. See, In re Initiative Petition No. 2 Cushing, 1932 OK 124, ¶¶2-9, 10 P.2d 271. 17 The Oklahoma Const. art. 18, §3 provides in pertinent part: § 3(a). Framing and adoption of charter - Approval by Governor - Effect - Record - Amendment. Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, . . . it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the Governor for his approval, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this State. Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. . . . 18 The constitutional provisions at issue were art. 8, §§1, 2 and 6 which provided in pertinent part, at the time, as follows: §1. The Governor and other elective state officers, including the Justices of the Supreme Court, shall be liable and subject to impeachment for wilful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude committed while in office. . . . §2. All elective officers, not liable to impeachment, shall be subject to removal from office in such manner and for such causes as may be provided by law. §6. The Legislature shall pass such laws as are necessary for carrying into effect the provisions of this article. 19 In State ex rel. Bass v. Pulliam, 1933 OK 480, ¶19, 25 P.2d 64, the Court further held that even where the clerk has neglected to comply with a charter provision to timely determine the sufficiency of a petition, the presumption was that all of the signatures contained therein are valid, and that the petition is sufficient. 20 Clapsaddle v. Blevins, see note 16, supra at ¶14. Title 11 O.S. 2011 §15-104, see note 1, supra. 21 Clapsaddle v. Blevins, supra at ¶17. 22 Clapsaddle v. Blevins, supra at ¶17. 23 Clapsaddle v. Blevins, supra at ¶23; Dunham v. Ardery, 1914 OK 418, ¶0, 143 P. 331. 24 Title 26 O.S. Supp. 1993 §13-102 provided: Not fewer than fifteen (15) days before the filing period for any municipal election, or in the event of a special election, not fewer than sixty (60) days before such election, the governing board of any municipality shall submit a resolution to the secretary of the county election board conducting said election. Said resolution shall contain the following facts: 1. The dates of the election or elections; 2. The offices to be filled or the questions to be voted upon at said election or elections; 3. Qualifications for said offices; 4. Designation of which offices shall be filled by voting by ward and which offices shall be filled by voting at large; 5. Indication of whether the election will be partisan or nonpartisan; 6. For charter cities where the charter is silent, indication of any portion of state law which will apply; and 7. Any other information necessary for conducting said election or elections. 25 Title 34 O.S. 2011 §3, see note 4, supra. 26 Title 34 O.S. Supp. 2015 §6, see note 5, supra. 27 The Okla. Const. art. 18, §3(a) provides: § 3(a). Framing and adoption of charter - Approval by Governor - Effect - Record - Amendment. Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of freeholders, composed of two from each ward, who shall be qualified electors of said city, to be elected by the qualified electors of said city, at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board or a majority of them, and returned, one copy of said charter to the chief executive officer of such city, and the other to the Register of Deeds of the county in which said city shall be situated. Such proposed charter shall then be published in one or more newspapers published and of general circulation within said city, for at least twenty-one days, if in a daily paper, or in three consecutive issues, if in a weekly paper, and the first publication shall be made within twenty days after the completion of the charter; and within thirty days, and not earlier than twenty days after such publication, it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the Governor for his approval, and the Governor shall approve the same if it shall not be in conflict with the Constitution and laws of this State. Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. A copy of such charter, certified by the chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors and its ratification by them shall, after the approval of such charter by the Governor, be made in duplicate and deposited, one in the office of the Secretary of State, and the other, after being recorded in the office of said Register of Deeds, shall be deposited in the archives of the city; and thereafter all courts shall take judicial notice of said charter. The charter so ratified may be amended by proposals therefor, submitted by the legislative authority of the city to the qualified electors thereof (or by petition as hereinafter provided) at a general or special election, and ratified by a majority of the qualified electors voting thereon, and approved by the Governor as herein provided for the approval of the charter. 28 Ballotopedia, https://ballotpedia.org/Cities_in_Oklahoma. 29 City of Enid Charter, Part D, Sections 6 and 7, see page 12, supra. 30 Clapsaddle v. Blevins, see note 16, supra at ¶13. 31 Cooper v. Dix, 1989 OK 55, ¶5, 771 P.2d 614; Keltch v. Alfalfa County Election Bd., 1987 OK 8,¶1, 737 P.2d 908; Tecumseh v. Shawnee, 1931 OK 81, ¶0, 297 P. 285. 32 Cooper v. Dix, see note 31, supra; Gardner v. Scott, 1951 OK 319, ¶9, 237 P.2d 863; Grover v. Haskell, 1909 OK 236, ¶0, 104 P. 56. 33 Cooper v. Dix, see note 31, supra; Hembree v. Stillwell, 1979 OK 109, ¶3, 597 P.2d 1218; Garder v. Scott, see note 32, supra. 34 Cooper v. Dix, see note 31, supra; Keltch v. Alfalfa County Election Bd., see note 31, supra. 35 Clapsaddle v. Blevins, supra note 16 at ¶24, Cooper v. Dix, see note 31, supra; Quinn v. City of Tulsa, 1989 OK 112, ¶50 , 777 P.2d 1331.   KANE, V.C.J., Concurring in Result: ¶1 I concur in the Court's result finding that the recall petition is legally insufficient, but I believe that the petition fails to comport with the express terms of the Enid city charter, so that further analysis as to compliance with state statute is unnecessary. I also write to address a perceived disconnect between the manner in which the litigants chose to frame the issues presented in the recall election, and what effect (if any) such framing might have on the final result herein. ¶2 The Enid City Charter provides that when a recall petition is circulated: "...one of the signers of each such paper shall make oath before an officer competent to administer oaths that the statements therein made are true as he believes, and that each signature to the paper to the paper appended is the genuine signature of the person whose name it purports to be. ..." Ord. No. 2002-51 Section 1, 12-17-2002 approved at referendum March 4, 2003 (emphasis added). Each page of the proposed recall petition does have a notarized statement attached, vouching for the residency and eligibility to vote of the persons known to the affiant, but the verifications do NOT vouch for the fact that the signatures affixed accurately correspond with the person known to the affiant.1 In other words, the verifications wholly fail to state that the affiant had personal knowledge that each signature was the genuine signature of the person known to said affiant. Were a hypothetical 'ward 3 resident Jane Roe' to affix the signature of hypothetical 'ward 3 resident John Doe' on the petition, there is nothing in the language presented which would make this verification incorrect. The city clerk and the trial court simply presumed that this did not happen, and this presumption was improper. Absent a statement that the signatures are genuine, the verifications were insufficient and the recall petition was hence deficient under the Enid city charter. Given this fact, the statutory analysis employed by the majority is unnecessary. ¶3 Appellant further suggests that he is the victim of a recall election, resulting from his policy choice to press the mandatory wearing of masks in the midst of a public health threat. Intervenors, on the other hand, opine that the mask mandate is only one of several grounds for recall, including but not limited to their perception that the incumbent has exhibited "...condescending and hostile views and inflammatory rhetoric towards his critics." Intervenor's Answer Brief, 5. ¶4 Regardless of how one may wish to characterize the issues presented in the recall petition, it is important to note that an acceptance of either side's characterization is wholly immaterial to the technical validity of the petition. In other words, in any proper analysis of this dispute, the political agendas of either side are wholly irrelevant to the legal considerations necessary to resolve the disagreement. The petition either comports with the law, or it does not - the soundness of the policies advocated by each side are beyond the purview of this appeal. While the majority appears to take this truth as so fundamental that it did not bear mentioning, since it was addressed in the briefing, I believed it was worth expressly noting. FOOTNOTES 1 The hand-written verifications stated, in nearly identical language, the following: "I (insert name) certify that the signatures were collected from persons known to me, at their home at the time of signing, verified through the https://okvoterportal.okelections.us, or stated that they were a registered voter in Enid Ward 3." Appendix to Objection and Protest to Recall Petition.     Winchester, J., with whom Rowe, J. joins, dissenting: I dissent. Enid is a Charter City that specifically allows recall elections. In this matter, the City Clerk verified 87 signatures for a recall, which met the charter requirements. The district court found substantial compliance with the charter and that the City Clerk did not act arbitrarily, fraudulently, or capriciously. I would allow the vote on February 9, 2021. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Criminal Appeals Cases  CiteNameLevel  1925 OK CR 327, 237 P. 145, 31 Okl.Cr. 60, McClure v StateCited Oklahoma Supreme Court Cases  CiteNameLevel  1987 OK 8, 737 P.2d 908, 58 OBJ 108, Keltch v. Alfalfa County Election Bd.Discussed  1989 OK 55, 771 P.2d 614, 60 OBJ 958, Cooper v. DixDiscussed  1989 OK 112, 777 P.2d 1331, 60 OBJ 1791, Quinn v. City of TulsaDiscussed  1998 OK 5, 66 P.3d 352, 69 OBJ 265, CLAPSADDLE v. BLEVINSDiscussed at Length  1998 OK 8, 953 P.2d 1111, 69 OBJ 482, IN THE MATTER OF THE ESTATE OF SNEEDCited  1939 OK 238, 90 P.2d 665, 185 Okla. 165, In re INITIATIVE PETITION NO. 9Discussed  1914 OK 418, 143 P. 331, 43 Okla. 619, DUNHAM City Clerk v. ARDERY.Discussed at Length  1993 OK 71, 853 P.2d 176, 64 OBJ 1721, Simpson v. DixonDiscussed  1936 OK 97, 54 P.2d 616, 176 Okla. 145, WHITSON v. CITY OF KINGFISHERDiscussed  1932 OK 124, 10 P.2d 271, 157 Okla. 54, In re INITIATIVE PETITION No. 2 CUSHING OKLAHOMA. JURNEY et al. v. HARLOW et al.Discussed at Length  1933 OK 480, 25 P.2d 64, 165 Okla. 70, STATE ex rel. BASS v. PULLIAM City Clerk et alDiscussed at Length  1920 OK 7, 186 P. 485, 78 Okla. 47, In re REFERENDUM PETITION NO. 35Discussed  1909 OK 236, 104 P. 56, 24 Okla. 707, TOWN OF GROVE v. HASKELLDiscussed  1965 OK 118, 404 P.2d 1014, COMMUNITY GAS AND SERVICE COMPANY v. WALBAUMDiscussed  1934 OK 371, 37 P.2d 417, 168 Okla. 632, STATE ex rel. HUNZICKER v. PULLIAMDiscussed  1931 OK 81, 297 P. 285, 148 Okla. 128, CITY OF TECUMSEH v. CITY OF SHAWNEEDiscussed  1931 OK 220, 299 P. 162, 149 Okla. 19, FOSTER v. YOUNGDiscussed  1995 OK 5, 890 P.2d 925, 66 OBJ 338, Thielenhaus v. ThielenhausCited  1979 OK 109, 597 P.2d 1218, HEMBREE v. CITY OF STILWELLDiscussed  1926 OK 15, 244 P. 801, 114 Okla. 285, In re STATE QUESTION No. 138 v. STATE TAXPAYERS ASS'NDiscussed  1951 OK 319, 237 P.2d 863, 205 Okla. 333, GARDNER v. SCOTTDiscussed  1912 OK 169, 122 P. 173, 31 Okla. 620, CITY COUNCIL OF McALESTER v. MILWEECited  1912 OK 611, 127 P. 862, 35 Okla. 49, In re INITIATIVE PETITION NO. 23 STATE QUESTION NO. 38.Discussed Title 11. Cities and Towns  CiteNameLevel  11 O.S. 15-101, Initiative and Referendum - PowersCited  11 O.S. 15-102, Procedure For Initiative and Referendum in MunicipalitiesCited  11 O.S. 15-104, Publication Announcing the Filing of Petition - ProtestsDiscussed at Length  11 O.S. 16-102, Limitations on Applicability of ProvisionsCited Title 12. Civil Procedure  CiteNameLevel  12 O.S. 2201, Judicial Notice of LawCited Title 26. Elections  CiteNameLevel  26 O.S. 13-101, County Election Board to ConductCited  26 O.S. 13-102, Notice of ElectionsDiscussed at Length Title 34. Initiative and Referendum  CiteNameLevel  34 O.S. 66, RepealedCited  34 O.S. 3, Petitions and SignaturesDiscussed at Length  34 O.S. 6, Verification of SignaturesDiscussed at Length  34 O.S. 8, Filing Copy of Proposed Petition - Publication - Protest - Hearing and Determination - Signature Gathering DeadlineDiscussed  34 O.S. 24, Only Substantial Compliance RequiredCited

2020-01-17 22:01:59.359155+00

Smith

*1353OPINION. Smith : The petitioner claims that it is entitled to a paid-in surplus in tlie computation of invested capital for 1920 and 1921 in the amount of $73,518.82. The basis of this claim is that the fair value of the assets paid in to the petitioner in exchange for its capital stock of $100,000 was $173,518.82, such value being allocated as follows: Buildings_$69,424.51 Beal estate_ 85, 000. 00 Machinery and equipment_ 69, 094.31 Total_173,518.82 The amounts claimed as the values for the buildings and machinery are the “ sound ” values determined by the appraisal of such assets as of August 11, 1913. The respondent, on the other hand, claims that he erred in the determination of the deficiency for 1920 in that he considered the cost of petitioner’s assets in August, 1913, for both the purposes of computing invested capital and depreciation for 1920 to be $116,513.99, whereas said cost was $70,810.52. He therefore contends that the true deficiency for 1920 is $5,565.86 in place of $3,121.41, the amount shown by the deficiency notice, and that the true deficiency for 1922 is the amount of $1,495.29 in place of $1,139.70, the amount shown by the deficiency notice. The amount of the deficiency determined for 1922 is predicated upon a basic cost of assets acquired by the petitioner in August, 1913, of $116,-513.99. The deficiencies determined for years subsequent to 1922 were predicated upon a cost of assets to the corporation upon its organization in 1913, including real estate, of $70,810.52. Before considering the question of the cost or values, of the assets acquired by the corporation in 1913,, it is necessary first to consider a question of law as to whether the properties were paid in to the petitioner in exchange for shares of stock. The petitioner contends, on the one hand, that the equitable title to the assets of the bankrupt was in the Georgia Bailroad Bank at the time of the organization of the petitioner and that that bank paid in those assets together with cash for the $100,000 par value of capital stock. The respondent, on the other hand, contends that at a public sale of the bankrupt estate the property covered by the mortgages was bid in by Wm. E. Bush for the bondholders; that he was acting as agent for the trustee of such bondholders, the Planters Loan & Savings Bank; that the properties were sold to Wm. E. Bush free from liens and at his direction deeded by the trustees in bankruptcy to the *1354Planters Loan & Savings Bank; that subsequent to that date the Planters Loan & Savings Bank sold tbe properties secured by mortgage to the petitioner for $10,810.52 cash and $60,000 of its first mortgage bonds. The claim of the respondent is therefore that the cost of these properties to the petitioner was $70,810.52. The evidence shows that prior to the sale of the properties on July 1, 1913, Wm. E. Bush, acting in the interest of the first mortgage bondholders, had numerous conferences with Jacob Phinizy, president of the Georgia Railroad Bank, which had an unsatisfied claim against the bankrupt of approximately $45,000 secured by $50,000 par value of second mortgage bonds. Bush was interested in the property only for the purpose of securing the first mortgage bondholders. He entered into an arrangement with Phinizy acting for the Georgia Railroad Bank that he (Bush), would bid in the property for the first mortgage bondholders and turn it over to a new corporation to be organized in consideration of a payment to him of an amount equaling the face value of the first mortgage bonds outstanding plus accrued interest. The Georgia Railroad Bank would advance as much money as was necessary to put the new corporation upon its feet, in exchange for which it would receive the capital stock of the new corporation. The details of the agreement reached between Phinizy and Bush were not worked out until after the sale of the property at public auction. We can not doubt that this agreement existed. At the auction Bush bid in the property at an amount less than the face value of the first mortgage bonds and Phinizy bid in the property of the bankrupt not covered by the first mortgage bonds at an amount of $8,915, which he paid to the trustees in bankruptcy. The bankrupt corporation continued in business without interruption. Phinizy did not take from the plant or attempt to take from it any part of the property which he had bid in at $8,915. Pursuant to the agreement reached between Phinizy and other officers or directors of the Georgia Railroad Bank, the petitioner corporation was organized and the bank advanced to it such amounts of money as were necessary to put it on its feet. Pursuant to the agreement also, thd Planters Loan & Savings Bank deeded to the petitioner corporation the property to which it had taken title in exchange for an issue of $60,000 of its first mortgage bonds and $10,810.52 in cash. In the circumstances of this case we can not doubt that the Georgia Railroad Bank prior to the organization of the petitioner had equitable title to the property which had been bid in by Bush. The Planters Loan & Savings Bank was not interested in the property which had been oid in for it by Bush except for the protection of the first mortgage bondholders. We have no doubt that if re*1355quested it would have deeded to the Georgia Railroad Bank for $70,810.52, the property in question. Then the Georgia Railroad Bank could have paid in to the petitioner corporation the assets thus acquired. In such case there could be no question that the assets would have been paid in to the petitioner corporation in exchange for capital stock. This step was unnecessary. The Georgia Railroad Bank clearly having a right to acquire the assets from the Planters Loan & Savings Bank at a price of $70,810.52, caused that bank to transfer those assets to the petitioner corporation instead of to itself. This we think was a payment in to the petitioner corporation of the assets in question in exchange for shares of capital stock. The facts in the instant case are in substance similar to those which obtained in Lexington Realty Co., 12 B. T. A. 850. In that case certain individuals had contracted to purchase property from the owner and to form the realty company to acquire the property. After its formation the realty company did acquire the property direct from the owners for cash and stock and issued all its common stock to the holders of the original contract. In its opinion the Board stated: All the transfers occurred at the same time and as part of the same transaction and looking at the substance of the whole transaction it is apparent that in purchasing the property the petitioner turned over $75,000 in cash, $25,000 par value second preferred stock and $59,700 par value of common. In other words, regardless of the identity of the persons to whom the cash' and the various kinds of stock were paid, the petitioner parted with cash and stock of the above amounts in return for which it received property having an actual cash value of $162,437.50. * * * So, in the instant case, we have no hesitation in saying that the petitioner issued first mortgage bonds in the amount of $60,000 and its capital stock of $100,000 in exchange for certain amounts of property and cash paid in to it by the Georgia Railroad Bank. The cash paid in was in the amount of $53,796.53. The Georgia Eail-road Bank had a claim against the bankrupt estate of approximately $45,000, covered by the second mortgage bonds. It was to protect this claim that the Georgia Eailroad Bank was willing to assume the additional risk of the cash payment of $53,796.53. The petitioner contends that the fair market value of the assets paid in to the petitioner corporation at the date of payment, exclusive of the cash advanced by the Georgia Eailroad Bank, was $173,518.82. This was the value for the buildings and machinery determined by an appraisal company which made an appraisal of the assets of the bankrupt in August, 1913. Its appraisal did not cover the real estate. But the petitioner contends and has offered evidence in support of a valuation for the real estate of $35,000. As we understand the petitioner’s contention, it is that the value of the *1356depreciable assets plus the real estate, in August, 1913, was $173,-518.82, and that this was exclusive of cash paid in by the Georgia Railroad Bank of $53,796.53. The sum of these two amounts is the value of the properties paid in, $227,315.35. It is to be noted, however, that $10,810.52 of the amount paid in by the Georgia Railroad Bank in 1913, was used to make a payment to the Planters Loan & Savings Bank. We think, therefore, that in any event the $227,-315.35 claimed as the value of the assets paid in must be reduced by that cash payment. With this correction the claimed values of the properties paid in, inclusive of the cash payment of $53,796.53, was $216,504.83. The deduction from this amount of $60,000 bonds and $100,000 capital stock leaves an apparent paid-in surplus of $56,504.83. We are of the opinion, however, that the evidence does not warrant a finding that the cash value of the properties paid in to the petitioner corporation was as great as the amount contended for by the petitioner. One of the deponents for the petitioner, M. E. Dyess, deposed, with respect to the value of the assets of the bankrupt, that he attended the public sale of the property and would have been willing to bid upon the property had it been sold at what he regarded a sacrifice price. Asked if he would have considered anything less than $100,000 a bargain price for the property answered: A. I would not Rave paid $100,000, would not liave offered that. Q. And your company was not willing to make a bid comparable to the market value of the property, which you thought? A. Not as a going property, no. He thought, however, that the value of the property at the date of sale was approximately $175,000. The Planters Loan & Savings Bank, as trustee under the first mortgage, answering the petition of the trustees in bankruptcy for an order to sell the property at public sale, prayed the court to order a sale free of lien, stating “ it did not believe the properties of the bankrupt to be worth $120,000 and interest.” As above indicated, the Georgia Eailroad Bank had a claim against the bankrupt estate of approximately $45,000. It paid an additional amount of $53,796.53 for the stock of the petitioner. Its total investment in the $100,000 capital stock was therefore slightly less than $100,000. It entered into an agreement with Mulherin in November, 1913, that he should have the privilege of buying the capital stock at par, plus interest paid on bonds and bond retirement and any other indebtedness due the Georgia Eailroad Bank, that arrangement to be in effect for one year. We think this evidence disproves the claim of the petitioner to a paid-in surplus in the computation of invested capital. The value *1357of the property paid in was not “ clearly and substantially in excess of the par value ” of the stock and bonds issued for it. Many of the books of account of the predecessor corporation have been lost or destroyed. The journal of the petitioner for 1913 shows that the plant account was placed upon its books at December 31, 1913, at a value of $116,518.99. It is not in evidence whether this figure includes real estate. It apparently rej)resented the cost of the plant to the petitioner corporation. We can not determine from the evidence that the cost or the cash value of the plant paid in to the petitioner corporation was in excess of that amount. The respondent has determined the amounts of deductible depreciation for 1920 and 1922 upon the basis of the journal entry above referred to. In the absence of satisfactory proof as to a greater cost or value for the assets than the basis used by the respondent, the use of such basis for the purpose of computing allowable depreciation is sustained. The respondent computed depreciation for the years 1923 to 1926, inclusive, upon the basis of the cost of assets to the petitioner corporation at its organization in 1913 at $70,810.52. This is upon the theory that the cost of those assets to the petitioner at the date of organization was simply the amount paid by it to the Planters Loan & Savings Bank for the assets. But, as above indicated, we are of the opinion that that amount is not the cost or the fair market value of the assets paid in to the petitioner for its capital stock and bonds. Tlie Georgia Bailroad Bank had a claim against the bankrupt estate of $45,000 and it paid an additional amount of $53,796.53 for the $100,000 capital stock of the petitioner. We think that $116,513.99 shown as the value of the plant account on the books at December 31, 1913, represents the fair market value of the plant on that date as nearly as it can be determined. We therefore are of the opinion that the allowance for depreciation for the years 1923 to 1926, inclusive, should be based upon the fair market value of such assets in 1913 of $116,513.99. The petitioner has alleged as an error in the determination of the deficiency for 1921 the denial by the respondent of a loss sustained during that year on obsolete machinery. The stipulation filed by counsel upon this point is to the following effect: In computing tlie deficiency in tlie 60-day letter respondent has disallowed a deduction taken in the return of the sum of $524.77 for abandoned machinery, resulting from his determination that said machinery had a cost basis of the sum of $1,832.08. The machines were in fact abandoned in 1020 and if the petitioner sustains in this proceeding its claim of a depreciation basis for machinery of an amount greater .than $46,965.05 (used by respondent in computing deficiency in said letter) then petitioner is entitled to an increase in the loss allowed to be determined on final settlement. * * * Inasmuch as we can not determine that the basis used by the respondent in the determination of allowable depreciation for 1920 *1358is in error, the claim of the petitioner of an error in this regard is not sustained. The stipulation likewise shows that for the year 1921 the respondent determined a net income of $1,987.26, allowing depreciation on the same basis as allowed for 1920 in the deficiency letter. It was stipulated that, if the depreciation is to be based upon a different value for the assets received in 1913 and a net loss should result for the year 1921, such net loss should be allowed as a deduction in 1922, Since the evidence does not warrant a different basis for the determination of depreciation for 1920 and subsequent years from that used by the respondent, this claim of the petitioner must be denied. Reviewed by the Board. Judgment will be entered under Bule 50.

2021-01-27 00:00:51.785054+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0849-143-2

ATTACHMENT B Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 1 of 51 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EDWARD BANKS, ef al., Plaintiffs, Vv. No. 1:20-cv-849 (CKK) QUINCY BOOTH, in his official capacity as Director of the District of Columbia Department of Corrections, ef al., Defendants. REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO SEPTEMBER 16, 2020 ORDER (Table of Contents, Report Narrative, Index to Exhibits, Appendix A Exhibits 1A — 6 and Appendix B Exhibit 1) December 11, 2020 IL. IIL. IV. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 2 of 51 TABLE OF CONTENTS INTRODUCTION 000i ccc ccc cece cece ceteeeeceteeeestsecsetseetseeseeseetieeseetseeeenes METHODOLOGY 000... e cece cee tects cee ceseecesetestesesteetessetetnteteeseees BACKGROUND 0.00.00 cccccee cece tc ceeetettee testes eeesceseeeseeeesseetsesieesseeseeseetsenseeses A. Population 2.00. c een cree e cnet ene ebne ents eectetieeetitectieetieeieeetieee B. Single versus Double Celling....00.0000cccccecccc cece cece ese ettttstetseeteeneey C. Operations in Response to the Pandemic.........0..000cccccccccecceceeceteeteseetteeees D. Staffing. ccc ce een ee ieee tse cnt ebbeeeteseceetnteniseecieeseetteesieenes 10 E. Support from the DOH... ccc ccc cece eee tent ces teesseeteeeetsteneenies 11 FINDINGS 0000.0 ce cece ee cece eens ceeeneeeseeteeseeeseeeeeseeeseetsenesteeteeteeseeeenaes 11 Requirement Ome ooo... ccc cece ete eee e tei te ttt teetteeeteeenieeees 11 A. The Sick Call Process .......0ccccccccccccecceececetecetseeeecsesseeteeeseeseetseseenes 12 B. Sick Call Data oo... eee cee ce cteeesseeseeteeeseetseeieeteeneeteeniees 16 1. Sick Call at the CDF o.....00 occ cece eects ettettetttetteestetiees 18 Table One: Summary of Length of Time to be Seen By A Provider At CDF oo......0cccccccccccecce ete eee cce cette eseeseeteettenteenieens 20 2. Sick Call at the CTF o.....0ccccccccecc cee eet ee teeteeeteeteeteetteeiees 20 Table Two: Summary of Length of Time to be Seen By A Provider At CTF o....0.cccccccccccccceeeeeseeseeseetsetiettetteeteeteeseeeiees 21 C. Conclusion, Requirement Ome... ccc ect cc ete etteetteetteenes 22 Requirement TW0...00.00000.000000cccc ccc ccc eect e tence eee ee ents te tebe teetteenteeenieeens 23 A. Efforts to Promote Social Distancing.......0000000.o occ ccc eceeeteeteenees 23 B. Conclusion, Requirement TWo 0.0.0.0... ccc cece cece cee teteteesetteeeites 27 Requirement Three .....0.0..0000..0000000ccccccccc ccc cece eee tee eeteeeeeeeeessteetteesesieees 28 A. The Environmental Health and Safety Vendor and Contract Cleaning Services ......00.000ccccc ccc cee cees cents ettetetseeeeenteeenieees 28 B. Hiring Registered Sanitarian ......00.000.00 ccc ccc cc eee tee eeteeeseeteenees 31 C. Access to Cleaning Materials and Related Training.......0..0000.0000... 33 Requirement Four ......0000.00000000 ccc cece cee e ete ee eet teeeteteetteeetseenneeens 34 Requirement Five ......00000000000 cocci ccc cece eee e eee e tei te tet teetteentseenneeens 35 A. Attorney-Initiated Legal Calls 00.0000 ceccc cet ceeeenetteetseenes 35 B. Inmate-Initiated Legal Calls 00.00.00 cete ete ceteeneetteeeniees 38 C. Conclusion, Requirement Five... cece cece eee ceteetsteesseceeenees 39 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 3 of 51 Requirement Six... cece eect ee eee ite te bese ttteeetteeeteeenneeees 39 A. Testing of Newly Admitted Inmates ......000000000cccc cece eceeteereees 40 B. Testing of Inmates Transferred to Saint Elizabeths Hospital ................. 4] C. Testing of Inmates Transferred to Federal Correctional Facilities ......... 42 D. Testing of Cellmates of Inmates Who Test Positive........000.000..0cce 43 E. Testing of Inmates Who Report COVID-19 Symptoms ...........0...00.00... 44 F. Timeliness of Testing Results 00.00.0000 ccc se ccee tee ceeetettteetees 46 G. Conclusion, Requirement S1xX oo... ccc cee ttee ce teeneetteeetseenes 46 V. CONCLUSION 0.00.00 ee cee e tees eteeeeeteteeceeeeseeiestistieteeteteteeeniees AT Index to Exhibits ...0..00.0 ccc cece ete ce cece seeeseeseeteeteesteetseesseseetsestsestetseeteeneey Index-1 APPENDIX A Exhibits IA — 6 APPENDIX B App. B, Ex. 1 il Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 4 of 51 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA EDWARD BANKS, ef al., Plaintiffs, Vv. No. 1:20-cv-849 (CKK) QUINCY BOOTH, in his official capacity as Director of the District of Columbia Department of Corrections, ef al., Defendants. REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO SEPTEMBER 16, 2020 ORDER Pursuant to the September 1 , 2020 Order issued in the above-captioned matter, (D t. Nos. 12 , 12 ),'a , traceM. opesand Mar ordan,” submit the follo in report for consideration by the Court and the Parties. 1 The Court amended the initial order issued on September 1 , 2020 to clarify the date by hich a ere re uired to be intheirrevie . The amended order re uired a to provide the Parties and the Court ith an oral report no later than October 1, 2020 anda_ ritten report no later than November 1 , 2020. Thereafter, on October 2 , 2020 a Second Amended Order Appointin Amicus as entered (D t No. 129), hich as identical in all respects to the prior order e cept, upon re uest of the a and ith the consent of the Parties, it chan ed the date of the oral report from October 1,2020,( hich asa Saturday), to November 9, 2020, and the date for the _ritten report from November 1 , 2020 to November 20, 2020. (D t No. 129). The Court ranted a consent motion to further enlar ¢ the filin deadline forthe ritten report to December 11, 2020, (D t. No. 1 2), to afford a sufficient time to complete additional unanticipated assessment activities. (D t. No. 1_ ). > err M. . rt I a,C.A.No. 1 19-8 (D.C. Super. Ct.) is a class action la suit related to the conditions of confinement and treatment in the District of Columbia s uvenile ustice system. race M. opes has served as the court-appointed Special Arbiter in this la suitand Mar ordanhas or edandcollaborated ith her on monitorin and reportin onthe District overnment s compliance ith the remedial orders issued in the case. The plaintiff class is represented by multiple attorneys, includin counsel from the District of Columbia Public Defender Service and the District of Columbia defendants are represented by counsel from the District of Columbia s Office of the Attorney eneral. Pursuant to a Settlement A reement approved by the Superior Court in uly 2020, durin ahearin conducted on December 1, 2020, the presidin ud ein err M. indicated that he found the conditions established by the Settlement A reement had been satisfied and that he ould be issuin a termination order later in the month. One of the conditions established by the Settlement A reement re uired the District of Columbia s Mayor to issue a Mayoral Order establishin the Office of Independent uvenile ustice acilities Oversi ht. A second condition re uired the Mayor to appoint Mar ordan as the E ecutive Director of Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 5 of 51 I INTRODUCTION This is the third report submitted by a in this case. ere initially appointed in an order issued on April 9, 2020, (D t No. 4 ), to provide specific information to the Court re ardin medical services and environmental health and hy iene related toCO ID-19, the disease caused by SARS-Co_ -2, the novel coronavirus, att o detention facilities operated by the District of Columbia Department of Corrections ( DOC ), the Central Detention acility ( CD )and the Correctional Treatment acility( CT). Pursuant to that order, a provided information to the Court and Parties durin an April 1 , 2020 teleconference and ina ritten report submitted on April 18, 2020 (D t. No. 4 ). One day later, on April 19, 2020, the Court issued an order rantin the Plaintiffs re uest fora Temporary Restrainin Order ( TRO )andre uirin the Defendants to ta e certain specified actions (D t. No. 48). Thereafter, in an order issued on April 28, 2020 (D t. No. 2), a ere appointed for the second time, to provide information to the Court re ardin certain matters related tothe TRO. ollo in issuance of the April 28, 2020 order, a provided an oral report to the Court and Parties on May 11, 2020, and submitted a ritten report on May 20, 2020 (D t. No. _ ). On une 18, 2020, the Court issued a preliminary in unction in this case (D t. Nos. 99, 100). The preliminary in unction re uires the Defendants to ta e certain specified actions, hich are described more fully in the ne t sections of this report, related to the follo in si conditions of confinement: medical care social distancin environmental health and safety conditions in isolation units access tole al calls and testin forCO ID-19. ere appointed for the this oversi ht office. As re uired by the Settlement A reement, these Mayoral Orders ill become effective upon the issuance of the termination order. At that time Mr. ordan ill become a District overnment employee, ith uni ue authority and independence, for a three-year term sub ect to removal only for cause. The Court and counsel for the Parties in the instant case, includin counsel for the United States, have been apprised of these circumstances. In response, all counsel indicated that there are no ob ections to Mr. ordan s participation as an a in this matter. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 6 of 51 third time on September 1 , 2020 (D t. Nos. 12 , 12 ), to provide information to the Court and the Parties re ardin the Defendants compliance ith the une 18, 2020 preliminary in unction. Pursuant to the September 1 , 2020 Order, a provided an oral report to the Court and the Parties durin ahearin conducted by telephone on November 9, 2020. Durin that proceedin , the Court re uested thatin their ritten report a address certain matters hich ere not initially contemplated by the September 1 , 2020 Order, and also provide additional details related to some of the matters that ere the sub ect of the November 9, 2020 oral report. This report summari es a November 9, 2020 presentation and includes the supplemental information a ere as ed to address. In addition, this report e plains the methodolo y a relied upon to conduct their assessment, describes relevant bac round data re ardin the facilities sub ect to the assessment, and presents updated information concernin identified cases of CO ID-19 atboththe CD andCT . The Defendants have continued to cooperate fully ith a re uests for information. Asa _ eneral matter, DOC and contract staff at every level have made substantial efforts to respond to a re uests promptly. reco ni e and appreciate the efforts the Defendants have continued to ma e to facilitate their revie Il METHODOLO Y ollo in the issuance of the September 1 , 2020 order, a conducted unannounced and unescorted site visits on multiple shifts on October 22,2 ,29, November 1 and December 2, 2020 at the CD , and on October 2 and November 2, 2020 at the CT . Durin the course of these site visits, a visited eneral population, ma imum and medium security housin units as ell ashousin units desi nated for enhanced monitorin , inta e, special mana ement, and forinmates ith mental health needs. A total of 18 housin units ere visited, some on multiple Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 7 of 51 occasions on different days or shifts (NO-1, SO-1, NO- , SO- , NW-2, NW- , SW- , SW-2, SO-2, C2A, C4C, SMUB, E2A, E4A, E4B, D A, D4B, C2B). Observations in housin units included cells, dayrooms and case mana er s offices. At both facilities, medical units, administrative offices, and visitor entry areas ere visited. In addition, the case mana ement suite, here many le al calls are conducted, as_ ell as the videoconferencin and visitation areas that are used at the CD for attorney-client videoconferences and meetin s, ere visited. Structured in-person and or telephone intervie s ere conducted ith members of the DOC e ecutive mana ement team, includin the DOC Deputy Directors of Administration, Operations, Pro rams and Case Mana ement, and Professional Development and Colle e and Career Readiness the Audit and Compliance Mana er the Sanitation Inspection Specialist the DOC Medical Director members of the Correctional Health Pro ram at Unity Health Care, Inc. ( Unity ), includin the Medical Director, Dental Director, Mental Health Director, ead Dentist, Director of Nursin , and other health care staff the CD and CT Warden and the Deputy Wardens assi ned to each facility maintenance supervisors and staff records office staff and do ens of correctional officers and supervisory correctional staff assi ned to various posts throu hout the facilities. In-person intervie s ere also conducted ith appro imately 80 inmates at both facilities. At the re uest of the DOC Medical Director, a also intervie ed an epidemiolo ist under contract ith the D.C. Department of Health ( DOH ), assi ned to provide support to the DOC and several other District a encies durin the pandemic.* In addition to the information collected durin site visits and from intervie s, a re uested and continued to receive access from the DOC to the electronic health records Unity provides medical services on a contractual basis to inmates at the CD and CT . 4 Atthe re uest of the DOH eneral Counsel, this intervie as conducted ith counsel present. It as the only intervie conducted durin the assessment in the presence of counsel. 4 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 8 of 51 ( EHR ) of inmates confined at the CD andCT . Revie and analysis of samples from these records has been conducted and the results are presented herein. The follo in data for both facilities ere also obtained from the DOC or Unity and analy ed: e Daily census data, includin inmate housin assi nments for the period une 18, 2020 to October 1, 2020 e Data related to admissions and len th of stay for the period une 18, 2020 to October 1, 2020 Data related to releases and transfers for the period une 18, 2020 to October 1, 2020 Date related to inmate le al status for the period une 18, 2020 to October 1, 2020 Sic call re uests and related lo s for the period une 18, 2020 to October 1, 2020 Data related to all CO ID-19 tests conducted on inmates throu h December 1, 2020 and Data related to DOC correctional staffin levels. I BAC ROUND Since the issuance of a May 2020 report, there have been a number of chan es in population levels, housin practices, housin unit operations, staffin levels, and the support the DOC receives from the DOH. Each of these topics is addressed belo A Pop lation On une 18, 2020, the day the Court issued the preliminary in unction, the combined population of the CD andthe CT as1,249 inmates. The Defendants subse uently reported to the Court that as of une 29, 2020, the combined population of the CD andCT as 1,2 1. Over the four-and-a-half months bet een the issuance of the preliminary in unction and October The team a assembled for this sta e of their or includedt o additional members. The ma ority of case record revie s ere conducted by anet Maher, an attorney ho hase tensive e perience in or in in institutional and healthcare settin s. Ms. Maher headed the Office of Corporation Counsel s Mental Health Division from 1992 to 2000, or edas Deputy eneral Counsel and Chief of Staff for the District s Child and amily Services A ency from 2000 to 200 and as DO Compliance Officer at Saint Eli abeths Hospital from 200 to 2014. rom 201 to her retirement in 201 , she headed the Hospital s Performance Improvement Department. She also has provided consultative services to the Maryland and Pennsylvania behavioral health systems and to the Office of the Special Arbiterin err Mo. ofr t I a,C.A. No. 1 19-8 (D.C. Super Ct.) Case records ere also revie ed by ulia Cade, a senior parale al ith substantial e perience in similar institutional conte ts. Durin the November 9, 2020 hearin , a incorrectly reported that the lo est population count bet een une 18, 2020 and October 1,2020 as 1,2 4. Ho ever, upon further revie , 1,248 inmates on une 18, 2020, the day the preliminary in unction as issued, represented the lo est population count for the period. Notice of Compliance ith the Court s Preliminary In unction(D t. No. 101) at . Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 9 of 51 1, 2020, the population of the to facilities increased by 19 percent to 1,48 inmates. Based on an analysis of data submitted by the Defendants, this as driven primarily by increases in the number of inmates confined on pretrial felony char es and to a lesser e tent by increases in the number of parole violators and pretrial misdemeanants confined at the CD andtheCT ° Because population increases in secure facilities are driven by either increases in the number of admissions, increases in the amount of time admitted inmates remain incarcerated, or a combination of thet 0, a analy ed admission and len th of stay trends of inmates housed atthe CD andthe CT , by le al status. The analysis revealed that after une 18, 2020, admission rates increased each month throu h September 2020, then decreased some hat in October 2020.’ There ere increases in admission rates for all three cohorts (.e., pretrial felons, parole violators, and pretrial misdemeanants) that drove the population increase. _ or pretrial felons, the number of admissions per month as si nificantly hi herin Au ust, September, and October 2020 than in the second half of une and in uly 2020.'° Amon parole violators, after relatively fe admissions in the second half of une, admissions increasedin uly and to a lesser e tentin Au ust, but then nearly doubled bet een Au ust and September from to 118, before droppin some hatin Octoberto8 .'' inally, amon pretrial misdemeanants, there ere 8 E .1A,Chart, Combined Population of CD and CT ,by Day and e al Status, une 18- October 1, 2020 E . 1B, Table, Combined Population of CD and CT , by Statusand Day, une 18- October 1, 2020. Durin this period, the population of pretrial felons increased by 1 inmates,from48 to 4 the population of parole violators increased by inmates, from 88 to 1 1 and the population of pretrial misdemeanants increased by 8 inmates, from 8 to 10 . The Appendi to this report is divided into t o parts. Appendi A hereinafter App. A contains the e hibits that are cited in this report. Some of the e hibits in App. A have been redacted, as appropriate, for filin in the public record. The updated CDC uidelines are contained in Appendi B_ hereinafter App. B . Unless desi nated by a citation to App. B, all citations to the e hibits included in the Appendi refer to App. A. ° E .1C, Table, Admissionto CD and CT , by Status and Month, une 18, 2020 - October 1, 2020. Monthly admissions in Au ust ere2 percent hi her than in uly, and monthly admissions in September ere 21 percent hi her than Au ust. Althou h admissions dropped by 1 percent durin October relative to the prior month, admission levels ere still ht her than uly and Au ust. 10 04 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 10 of 51 increases in admissions in Au ust and September before admissions dropped some hat in October.” The avera elen thof stay amon all inmates housed at the CD and CT increased bet een une 18 and October 1, 2020, albeit only sli htly, by appro imately four percent.' Amon the three cohorts that primarily accounted for the increases in population, the chan es in len ths of stay varied. The avera elen th of stay amon pretrial felons increased by appro imately ei ht percent bet een une 18 and October 1, 2020. or pretrial misdemeanants, the avera elen th of stay increased by substantially more over the same period, appro imately 1 percent, from 4 daysto days. Incontrast,amon parole violators the avera elen th of stay dropped by appro imately 28 percent over the same period. B_ Sin levers s Do ble Cellin also analy ed sin le versus double cellin practices at each facility durin the period une 18 to October 1, 2020. Asa previously reported, the CD contains 18 housin units, most ith 80 cells.‘4 Over the period revie ed, the CDs population ran ed from alo of 819 inmates to a hi hof 1,0 9 inmates. While there are over 1, 00 cells at the CD , over the period analy ed the avera e daily percenta e of inmates housed in sin le cells as8 percent (.e., 1 percent of inmates had cellmates). The double cellin practices atthe CD ere at least in part attributable to closed housin units and cells on open housin units that ere ta en out of service due to maintenance issues. Durin a site visits in October and early November 2020, five housin units ere 12 d. 13 E .1D, Table, Avera e en thof Stay of Inmates Housed atCD and CT , by Status and Month, une 18, 2020 - October 1, 2020. 4 ee e rt tted rae ratt rl , et rder, filed May 20, 2020 hereinafter a, e rt at4- fora more complete description of the CD . Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 11 of 51 closed, but durin a most recent site visit to the CD on December 2, 2020, only t o housin units ere closed: NO-2' and SE-1.' A observed numerous cells that ere unoccupied on housin units ith double-celled inmates. Maintenance and correctional staff reported that unoccupied cells ere out of service in some instances because the metal bun sin the cells ere dama ed. ere told that in other instances the cells ere unoccupied because of plumbin problems. CD staff reported thaton November 0, 2020, appro imately 4 cells on open housin units ere out of service. ! Atthe CD ,a additionally analy ed sin le versus double cellin practices in SO-2, the Inta e unit. E cept forinmates ith acute mental health issues, ho are transferred to SO- and omen, ho are admitted at the CT , the Defendants report that ne inta es are housed on SO-2 until they are medically cleared follo in CO ID-19testin . Bet een une 18 and October 1, 2020, the population of SO-2 ran ed from alo of 44 inmates toa hi h of 111 inmates. The avera e daily percenta e of inmates housed in sin le cells on that unit as percent, lo erthan the percenta e of inmates housed on sin le cells on non-Inta e housin units. Durin a December 2, 2020 site visit, the population of SO-2. as’. At that time, inmates ere double celled (.e., occupyin 18 cells) hile 22 cells ere unoccupied. Atthe CT , there are2 housin units, includin the infirmary.‘ Durin a most recent site visit to the CT on November 2, 2020, seven housin units ere closed. The CT houses si nificantly fe erinmates than the CD . Bet een une 18 and October 1, 2020, the 1 NO-2 is desi nated to house inmates ho test positive forCO ID-19. 1 SE-1 as closed because it as bein used forstora e. CD mana ement reported that they are considerin openin the housin unit as part of a plan to enable them to eventually open a second Inta e housin unit else here in the facility. 1 attempted to obtain records reflectin the number of cells out of service daily ho ever, neither of thet o CD administrative units that a ere told maintain these data (.e., Maintenance and Countboo ), ere able to provide precise information. 18 ee May 20, 2020 Report at - fora more complete description of the CT facility. 8 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 12 of 51 facility population ran edfromalo of Oinmatestoahi hof4 4 inmates and durin that period, it as rare for inmates to have a cellmate. Department of Corrections records indicate that the avera e daily percenta e of inmates housed in sin le cells atthe CT durin this period as 99 percent. C Operations in Response to the Pandemic Both the CD and CT have continued toimplement a2 -hour per day loc do n. In effect, this means that most inmates remain in their cells e cept for one hour per day hen they are released to sho er, ma e personal telephone calls, atch television, sit in the day room, and or ma euse of small recreation areas ithin the housin units.!? Inmates assi ned to se re ation units areloc eddo n for 24 hours per day on ee ends. Be innin in the fall, the DOC has made tablets available to inmates that they can use in their cells. There aret o types of tablets, one ith paid content that includes entertainment options such as videos and ames and another ith free educational content. Ase plained belo, the tablets include educational materials related to CO ID-19 and also can be used for attorney-client communications. *° Durin a prior site visits in April and May 2020, the DOC had desi nated numerous housin units at both facilities as uarantine or isolation units. In contrast, durin site visits conducted from late October to early December 2020, there ere no isolation or uarantine housin units atthe CT duetothe absence of no norsuspected CO ID-19 cases. At the CD , there as briefly an isolation unit in November after an inmate tested positive upon admission and another housin unit as uarantined after a reported e posuretot o staff 1° Inmates in many CT housin units also spend out-of-cell time heatin meals in micro ave ovens. 20 ee ra2 and 8- 9. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 13 of 51 members ho tested positive for CO ID-19.7' In addition to uarantine and isolation units, the DOC also established enhanced monitorin housin units at both facilities for inmates ho return from in-person court appearances or face-to-face visits ith an attorney. Inmates housed on enhanced monitorin units have their temperature chec ed by medical staff daily for up to a 14-day period. D Staffin previously reported that the lar e number of correctional staff unavailable for duty, includin staff ho ere not available for reasons related to CO ID-19, hada si nificant impact on facility operations. comparison of correctional staffin levels from mid-May to staffin levels in early December 2020 indicates that the number of staff available to or remains virtually unchan ed. previously reported that as of May 9, 2020, the DOC had a total of 994 funded correctional officer positions.” Of that total, 1 positions ere vacant, five percent. Moreover, an additional 1 0 filled positions, 1 percent, ere encumbered by correctional officers ho ere on unavailable for duty status. Thus, 22 percent of the funded correctional complement as either vacant or not or in . obtained updated data related to the correctional staffin complement from December 2020. As of December 1, 2020, the DOC had a total of 1,014 funded correctional positions, 20 more funded positions than on May 9, 2020. DOC mana ement reported that as of December , 2020, 110 positions ere vacant, 11 percent, and an additional 1 _ staff in filled *1 All of the inmates on the uarantined housin unit ere tested forCO ID-19 and none tested positive. 2 eeMa , e rtat -8 e rt tted rae ratt rl, rder, filed April 19, 2020 hereinafter r/ e rt at21. > Ma e rtat . The total included 844 correctional officer positions, 9 lead correctional officer positions, and — supervisory correctional officer positions. 10 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 14 of 51 correctional positions, 1 percent, ere unavailable for duty. Thus, hile the number of staff ho ere unavailable for duty decreased, an increase in the number of staff vacancies left the si eof the available or force essentially the same as it as in May.” E S pport from the DOH Startin atsome pointin une 2020,anurse or in ith the DOH be an providin health education related toCO ID-19 to DOC staff and conductin audits, at times ona_ ee ly basis, related to the use of personal protective e uipment ( PPE ) at boththe CD andCT . Unity and DOC mana ers report that they have been re ularly briefed on the audit findin s and recommendations. In early Au ust 2020, an epidemiolo ist under contract ith the DOH be an to visit the CD and CT to ensure appropriate monitorin of CO ID-19 positive cases and the related submission of data to public health officials provide consultation on uarantine, isolation and testin practices and confer ith Unity s medical director on treatment in individual cases. By all accounts, this increase in DOH support has served as a very helpful resource to both DOC and Unity mana ers. I FINDIN S This section summari es a findin sre ardin the Defendants performance relative to each of the si_ re uirements related to conditions of confinement addressed by the une 18, 2020 preliminary in unction. Re _ irement One Defendants shall implement a medical cares stem on _ eneral pop lation nits that ens res inmates receive attention from a medical provider ithin 2 ho rsofreportin healthiss es Ifthiss stem contin esto sesic call slips, Defendants shall ens re that inmates have consistent and immediate access tos chsic call slips and that said slips are collected at re lar intervals 24 ee raat2 -2 for additional information. ll Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 15 of 51 The DOC and Unity have added resources to enhance the sic call system at the CD and CT . The evidence sho s that for the most part, the Defendants areno providin inmates at the CD andCT _ ith consistent access to sic call slips and they are collected at re ular intervals ho ever, inmates are not consistently seen by a medical provider ithin 24 hours of reportin health issues ina si nificant percenta e of cases. These findin s are described belo A The Sic Call Process The DOC relies on asic call system on eneral population housin units” to ensure that inmates receive attention from a medical provider thin 24 hours of reportin a health issue.” The Defendants have increased staffin for health services and made several modifications to the business process related to sic call re uests in response to this re uirement. The DOC s contract ith Unity Health Care, Inc. as modified to add fundin for the hirin oft o additional nurse practitioners or physician assistants and t o medical assistants for the period May 18 throu h September 0, 2020.2 The contract modification includes t o contract line items to e tend the contract fort o additional time periods sub ect to fundin availability: from October 1, 2020 to anuary 1,2021 and from ebruary 1, 2021 to April 14, 2021. Subse uent to September 0, 2020, the increased staffin levels authori ed by the modification have remained in effect.7® > Asa noted durin the November 9, 2020 hearin , a interpret eneral population units in this conte t to mean housin units that have not been desi nated as_uarantine or isolation units. > Inmates can also access medical care throu h the ur ent care and chronic care clinics. 2 E .2A, Amendment of Solicitation Modification of Contract Number CW 88 8, effective May 18, 2020. The contract modification as si ned by a Unity representative on une 2, 2020 and by a District overnment contractin officer on Au ust 11, 2020. 28 re uested that DOC mana ement produce documentation supportin thee ercise of the option for the additional period that be an on October 1, 2020, and reflectin the associated availability of fundin . Accordin to DOC mana ement, the a ency intends to maintain fundin to support the modification throu hout both additional periods specified in the contract modification, fundin is available, and there is no need for supplemental documentation reflectin the e ercise of the additional period and the availability of fundin . 12 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 16 of 51 Intervie s_ ith Unity staff indicate that this modification as intended to stren then the business process related to sic call by addin clerical staff to collect and trac sic call re uests obtained from the housin units on a more fre uent basis and by increasin the number of clinicians available to deliver medical services.””? Under thisne system, hich as implemented on une 2 , 2020, inmates are e pected to continue to obtain sic call re uest forms from the correctional staff, and fill them out by enterin their name, date of birth, DCDC number, housin unit, cell number, the date, and information about the nature of their re uest. ° The une 2020 revisions to the form add certain specific CO ID-19 symptoms and inmates are as edtochec all that apply to them. ' The revised form does not provide a prompt for inmates to indicate the time the re uest as made or for medical staff to note the time the re uest as received. Inmates are instructed to continue to place the sic call re uest forms in the secure collection bo es that are maintained on the housin units. As part of the ne business process the Defendants have implemented, medical assistants at each facility pic uptheformst ice daily from each housin unit, enerally inthe early mornin and mid-day. The medical assistants count the forms as they retrieve them and manually record the total number of slips they have collected in ahand rittenlo before leavin each housin unit. After the medical assistant has retrieved the re uest forms, a member of the correctional staff assi ned to the °° Unity mana ers report that they be an pilotin thisne process on May 18, 2020. ° E . 2B, sample revised Sic Call ormused atCD and CT . Inmatesaree pected to chec one of the follo in bo es: I. ishto be seenatsic call, dental treatment, mental health or other. ! The symptoms listed on the revised sic call re uest form are fever, cou hin , difficulty breathin shortness of breath, headache body ache and upset stomach. d. Inan effort to ma e the forms more readily identifiable, DOC and Unity mana ers report that the correctional staff have been instructed to print the forms on pin paper. observations indicate that hile use of the revised forms is idespread, inmates also submit sic call re uests usin a variety of documents, includin the previous version of the sic call re uest forms, random sheets of paper, and by fillin out inmate re uest slips, hich are intended for initiatin case mana ement and other administrative re uests. eeE .2C, Inmate Re uest Slip, fora copy of the form used at both facilities to ma e re uests that are processed by case mana ement staff. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 17 of 51 housin unit e amines the interior of the bo and documents that there are no sic call re uest forms remainin inthebo . In contrast to previous site visits, sic callre uest forms ere available on most of the housin units a visited before the November 9, 2020 hearin . In fact, of the 1 housin units a visited up to the time of the hearin , the forms ere available on every unit other than NO-1, ahi h security housin unit ande cept for inmates confined on NO-1, inmates at both the CD and CT did not report difficulty accessin the sic call forms. Durin a subse uent site visit a conducted on December 2, 2020, the forms ere available on NO-1. Moreover, lo s and intervie s_ ith correctional officers, inmates, medical providers, and medical assistants establish that asa eneral matter sic call re uest forms have been pic ed up t ice daily from the housin units at both facilities since une 2 , 2020. ” After sic call re uest forms are pic ed up from all housin units inthe mornin and mid-day, the medical assistant assi ned to each facility transfers the tally for each housin unit into an electronic database. The sic call re uests are then tria ed for ur ency by achar e nurse. If the re uest is deemed ur ent, the inmate ise pected to be brou ht to the ur ent care clinic. Ifthe char e nurse determines the re uest is routine, inmates hose sic call re uest forms are pic ed up inthe mornin are e pected to be scheduled for a same-day sic call appointment. Ifthe sic call form as collected mid-day, the inmate is e pected to be scheduled for ane t-day sic call appointment. Accordin to Unity s mental health mana er, sic call re uests for mental health services are initially tria ed by medical staff. Any that are deemed ur ent are hand delivered to mental health staff for immediate attention. Inmates ho submit re uests that are not identified as * Atthe CT , in an effort to ensure access to health services, medical providers al the tiers of both special mana ement units on a daily basis. 14 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 18 of 51 ur ent aree pected to be seen by a mental health provider ithin 24 hours. Ifa sic call re uest indicates the inmate has a dental problem a dis in pain or has s ellin or other indication of a possible infection, the char e nurse is e pected to schedule the inmate to be seen by a medical provider on either an ur ent basis or the ne t day at sic call. If there is no indication of pain, sellin or other indication of a possible infection, the sic call re uest is e pected to be referred to the dental pro ram for follo up as either a Priority One, T oor Three. Priority One is limited to patients ho have indicated on their sic call re uest form that they are in pain or haves ellin or some other indication of infection. It is anticipated that they ill be seen by a medical provider ur ently or ithin 24 hours and seen by a dental provider ithin seven days. Priority T oisidentified ith routine dental problems and no apparent pain. These patients are not seen by a medical provider but are scheduled to be seen by a dental provider. Priority Three includes re uests for procedures such as routine cleanin , and li e Priority T 0, these patients are not seen by a medical provider, but are scheduled to be seen by a dental provider. Unity and DOC mana ers have informed a that there have been discussions about usin thene ly adopted educational tablets as a supplemental method (.e., it ould not replace hard copy forms) throu h_ hich inmates could directly submit sic call re uests to the health care staff. They have described a system in hich an inmate could complete an electronic sic call re uest form on the tablet and transmit it electronically to a desi nated electronic inbo available only to medical staff. Department of Corrections mana ement has reported that the sic call re uest form has been di iti ed for use on the educational tablets. As of December 2, 2020, the electronic sic call form submission process had not been implemented. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 19 of 51 intervie ed numerous inmates atthe CD and CT re ardin sic call and access to medical care. In contrast to earlier site visits, inmates enerally had positive impressions of the sic call process and asserted that they e pected that if they submitted a sic call re uest form they ould be seen by a medical provider timely. B Sic Call Data In order to assess the Defendants performance relative to the 24-hour re uirement, a selected a sample of 92 sic call re uests submitted by inmates confined at the CD and CT bet een une 18, 2020 and October 1, 2020. Thesample as selected from the ori inal hard copies of the sic call re uest forms that are submitted by inmates. To test the completeness of the data source provided by the Defendants (.e., hether all sic call forms submitted by inmates durin this period ere produced for revie ), a compared the number of forms produced by the Defendants from uly 2020 atthe CD ith the total number of sic call re uests for the same month documented in the spreadsheet maintained by the medical assistants ho pic upthesic call re uests atthe CD .* or the month of uly 2020, the spreadsheet enerated by the medical assistant assi ned tothe CD indicated that atotal of 1 8 sic call re uests ere submitted by inmates by comparison, the Defendants produced for revie by a a total of 1,1 9 hard copies of sic call re uests atthe CD for the same period. ere not able to reconcile this discrepancy. dre separate samples of sic call re uests from the CD andCT . Because medical, dental, and mental health sic call re uest forms are stored separately after they are Durin the November 9, 2020 hearin a e plained that they had conducted arevie ofasample of sic call re uests based on hat they believed ere allsic call re uest forms submitted by inmates bet cen une 18 and October 1, 2020. Ho ever, a later learned that the sic callre uests from hichthey dre the sample ere not all sic callre ueststhat ere submitted by inmates, but rather a sample selected by Unity staff. Thus, a ne sample as selected by a 4 ee raat -14 fora more detailed description. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 20 of 51 tria ed by the char e nurse, and because some inmates reported delays in responses to sic call re uests concernin dental and mental health services, a structured asamplin methodolo y that ensured sic call re uests of all three types ereincludedinthe sample. Intotal, 1 sic call re uests ererevie edfromtheCD and4l1sic callre uests ererevie ed from the CT . The samples from both facilities ere structured to include sic call re uests from every month in the revie period. Because sic call re uest forms include recorded dates, but not times, it as not possible to calculate the number of elapsed hours bet een an inmate reportin health issues and the inmate receivin attention from a medical provider. or this reason, a analy ed the data at the most specific time interval possible iven the available data sources: the number of elapsed da bet eenaninmate reportin health issues and the inmate receivin attention from a medical provider. used the date recorded by the inmate on the sic call re uest form as the basis for the calculation of the number of elapsed days bet een an inmate reportin a health issue and receivin attention from a provider. ® On 21 of the 92 sic call re uest forms in the sample, 2 percent, medical staff added a notation that the date recorded by the inmate asthe ron date. In certain cases, the reason for the notation as clear (e. ., the date recorded by the The volume of re uests for dental and mental health care is much smaller by comparison to re uests for medical care. In order to ensure a sufficient number of sic call re uests for dental and mental health care ere included in the analysis, a established a minimum number of each type to include in the sample. The difference in the sample si es as principally attributable to the fact that the Defendants produced three mental health sic callre uests fromthe CT durin therevie period, allof hich ere included in the sample. Atthe CD , the Defendants produced a lar er number of mental health sic call re uests and a selected a sample of 11 mental health sic call re uests from that facility. Dates are enerally recorded int oplacesonsic callre uest forms. irst, there is a field labelled Date echa for the inmate to record the date s he fills out the sic call re uest form. Second, medical staff typically stamp cach form itha Received stamp and enerally, but not al ays, hand rite a date under the stamp. There is a third field in a portion of the form desi nated for the medical provider to fill out that also includes a date and a time field ho ever, these fields ere not completed in any of the sampled forms a revie ed. Ho ever, the EHR provides a record of the date and time of any clinical encounters bet een inmates and medical providers. 8 Durin the sample selection process, a observed a si nificant number of sic call re uests ith no date recorded by the inmate. These forms eree cluded from the sample because they ould notallo a toma e any findin sre ardin timeliness. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 21 of 51 inmate asa month a fer medical staff collected the form) ho ever, in most other cases, there as a difference of one ort o days bet een the date recorded by the inmate and the date recorded as received by medical staff. In these cases, the basis forthe ron date notation as not evident. 1 Sic Call at the CDF sample of sic call re uests submitted atthe CD included 2 re uests for medical care, 1 re uests for dental care, and 11 re uests for mental health care. ° analysis indicates that for all cate ories of sic call re uests combined, in 22 of Osic call re uests, 44 percent, inmates ere seen by a medical provider on the day they submitted their sic callre uest or the ne t day. An additional three sic call re uests, si percent, ere for medication refills and the prescriptions ere refilled the day after the sic call re uest as submitted ithout the inmate seein a medical provider. Amon the 24 re uests for medical care, 1 re uests made by inmates (includin the three prescriptions that ere timely filled ithout the inmate havin to see a provider), 1 percent, received attention from a medical provider ithin one day of the submission of the sic call re uest.t? Amon the remainin seven sic call re uests for medical care, five of the inmates ere seenbet eent oand five days follo in submission of the sic call re uest form andt o ere seen more than five days follo in the submission of the re uest form. Althou h the sample of sic call re uests a analy ed included re uests for dental and mental health services, the sample si es for those sub roups_ ere not lar e enou h to reach ° One sic call re uest for medical care ase cluded from the sample because the date recorded by the inmate as subse uent to the date medical staff collected the form. 4° ourteen of the 1 patients ere seen by aprovider ithin one day. In the other three instances, the inmate re uested prescription refills for s in cream, eye ointment and nasal spray, respectively, and a provider ordered the refill ithinone day ithout seein the inmate. 18 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 22 of 51 meanin ful conclusions about the timeliness of provider responses to those subcate ories of re uests. Ho ever, because a number of inmates a intervie ed complained about delays in responses to sic call re uests for mental health and dental services, a revie ed the EHR related to1 sic callre uests for dental services and 11 sic call re uests for mental health services atthe CD . The findin s from those revie s are summari ed belo Ase plained above, sic call re uests for dental services are tria ed and re uests that reflect pain, s ellin , or another indication of a possible infection are e pected to be seen by a medical provider thin one day, or sooner if indicated.*' Amon the 1 sic call re uests for dental careinthe CD sample, three inmates ere seen by asic call provider the day they submitted the re uest or the ne tday.7 Amon the remainin 12 sic call re uests for dental care that did not result in a timely provider visit, seven re uests included reference to a chipped or bro en tooth, cavity, toothache, or a non-specific reference to isdom tooth. None of the inmates associated ith these latter cate ories of re uests ere seen by a provider ithin one day of submittin their sic call re uest. In the remainin five instances, the sic call re uest forms referenced the need for a dental cleanin , fillin , or simply stated dental. Amon the 11 sic call re uests for mental health servicesin the CD sample, the inmates associated ith fourre uests ere seen the day the re uest as submitted or the subse uent day. In the remainin seven instances, theinmate asseenany herefromt otosi days after re uestin services. The table belo summari es the timeliness of sic call services atthe CD . 4 raat1 . While inmates ho indicate pain ors ellin are assi ned priority for services, the form does not as ifthe inmate ise periencin dental painors ellin , but leaves it up to the inmate to specify these symptoms. 42 Only one of these three sic call re uests included a description by the inmate indicatin any painors ellin . 19 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 23 of 51 TABLE ONE SUMMARY OF LEN TH OF TIME TO BE SEEN BY PRO IDER AT CDF TYPE OF SER ICE lda of 2 das Morethan das Not Seenb RE UESTED re est of re est of re est Provider MEDICAL | 2 0 4 44 DENTAL 4 MENTAL HEALTH COMBINED 24 14 8 4 2 Sic Call at the CTF Atthe CT ,a sample included 2 re uests for medical care, 1 re uests for dental care,t ore uests for mental health care, and one re uest for both medical and mental health care. analysis indicates that at the CT , for2 ofall 41 ofthesic call re uests, percent, inmates received attention from a medical provider on the day they submitted their sic call re uest or the follo in day. Amon the2 re uestssee in medical care, inmates associated ith 1 re uests, 0 percent, ere seen by aa medical provider thin one day of the submission of the sic call re uest inmates associated ithsi re uests, 24 percent, ere seen bet eent o and five days of the submission of the re uest and inmates associated ith four re uests, 1 percent, ereseen any here from si to 20 days after the submission date noted by the inmate on the re uest form. ‘ One of the five inmates did not appear for his appointment, hich as scheduled for 24 days after the sic call re uest as submitted. 44 One of the four inmates asnotseen ithinthree ee sofhissic callre uest andt o inmates ere not seen ithint o months of their sic call re uests as of December 1, 2020. The remainin inmate asreleased days after his re uest ithout bein seen. 20 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 24 of 51 Thirteen of the 41 re uestsin the sample ere for dental services. Seven of those re uests resulted in inmates bein seen by a medical provider ithin one day after the re uest as submitted.* Amon theremainin si re uests for dental care, one re uest referenced dental pain andtheinmate as not seen until three days after the re uest as submitted, three re uested dental cleanin sandt o erenon-specific re uests for dental services. Amon the three sic call re uests for mental health care,* one resulted in an inmate bein seen the day after the sic callre uest as submitted. The inmates associated ith the other t ore uests received attention from a providert o days and four days, respectively, after the re uest as submitted. The table belo summari es the distribution of time bet een the submission of sic call re uest forms and inmates bein seen by a provider at the CT : TABLET O SUMMARY OF LEN TH OF TIME TO BE SEEN BY PRO IDER AT CTF TYPE OF SER ICE Re vr t Ree s ' More ea s Not Seen b RE UESTED es of ke es of Re es ovide MEDICAL 1 4 0 DENTAL 4 2 0 MENTAL HEALTH I 1 0 0 MEDICAL AND 0 1 0 0 MENTAL HEALTH COMBINED 2 12 0 4 Si of those seven sic call re uest forms included a specific description indicatin pain,s ellin orabro enor erodin — tooth. 4 One of the three asthe sic call re uest that also includeda re uest for medical care. 21 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 25 of 51 C Concl sion, Re irement One The Defendants have invested additional resources in the sic call process by au mentin staffin in order to collect sic call re uest formst ice daily and increase the number of providers available to assess and treat inmates at sic call. Inmates enerally had positive impressions of medical staff responses to sic call re uests for medical services ho ever, inmates reported delays accessin dental and mental health services throu h the sic call system. These reports are enerally consistent iththesamplerevie edbya . AttheCD , 1 percent of sic call re uests for medical services resulted in inmates bein seen ithin one day and atthe CT , 1 percent ereseen ithin one day. reco ni e that there is some inherent mar in of error in these calculations for several reasons. irst, the timeliness of the responses to many sic call re uests could not be calculated because in identifyin a sample, a determined that a si nificant number of inmates did not record a date (or time) on the sic call re uest forms they submitted and therefore these forms ere automatically e cluded from the sample since timeliness could not be determined. Second, none of the sic call re uest forms included the time of submission and, as noted above, the form does not prompt inmates to record the time of submission. inally, it is possible that submission dates recorded on some sic call re uest forms are incorrect. Medical staff at times include a notation statin thatthe ron date as entered by the inmate on the re uest form. Ho ever, it as not possible for a to assess the accuracy of the submission date inmates recorded on the re uest forms nor the accuracy of the staffs ron date desi nation.* ‘ An advanta ¢ of an electronic sic call re uest submission process ould be that it ould include data re ardin the date and time of each sic call re uest submission, hich could serve as an audit trail. This ould also eliminate the need for inmates to rely on correctional officers to provide sic callre uestforms. or some inmates, ho ever, the use of tablets to complete an electronic form could present a barrier to submission. 22 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 26 of 51 Additionally, did not revie lar eenou h samples to reach conclusions about the timeliness of responses to re uests for sic call related to dental and mental health needs. Ho ever, there is some indication that at least ith respect to dental services, there are delays in inmates accessin timely services. The dental sic call re uest system is desi ned so that inmates e periencin pain,s ellin , or other si ns of infection are seen thin 24 hours, but in the absence any indications of these symptoms, inmates are not scheduled to be seen on sic call. If inmates are una are of the decision rules adopted by medical staff, inmates ho do have ur ent dental problems may submit asic call re uest for dental services ithoutincludin the appropriate information to be seen timely. Re irement T o Defendants shall compl _ ith District of Col mbia and Centers for Disease Control re lations on social distancin in DOC facilities Defendants shall address challen es hich have prevented the implementation of social distancin incl din b tnot limited tolac of ed cation and staffin shorta es Defendants shall provide the Co rtan_ pdate on their improvements to enforcin social distancin b UNE2 , 2020 Ase plained belo, the Defendants have continued to promote social distancin , but on oin limitations are evident. The a ency has bene unable to increase the complement of staff that is available for duty. These matters are e plained belo A_ Efforts to Promote Social Distancin Current CDC _ uidelines applicable to detention and correctional facilities recommend implementation of social distancin strate ies to increase the physical space bet een incarcerated detained persons (ideally feet bet een all individuals, re ardless of symptoms), and to minimi emi in of individuals from different housin units. *® District of Columbia 48 ee App. B,E .1, Interim uidance on Mana ement of Coronavirus Disease 2019 (CO ID-19) in Correctional and Detention acilities, updated December _ , 2020, https: .cde. ov coronavirus 2019- ncov community correction-detention inde _.html, Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 27 of 51 re ulations related to social distancin in the conte t of the current pandemic are consistent ith this uidance.*” The DOC has continued to implement strate ies intended to reduce both the number of different inmates hocome into contact ith one another (e. ., by reducin opportunities for inmates from different housin units to interact ith one another) and the number of inmates ho interact ith one another at any iventime(e. ., by reducin out-of-cell time). As noted above, ° at both the CD and CT , the DOC has continued to implement a medical loc do n, durin hich inmates are allo ed out of their cells one hour per day in small roups. ! Department of Corrections mana ers and staff report that they limit the number of inmates out of their cells at one time in each housin unit toama imum of si inmates in addition to four inmates on or detail, ho are responsible for certain cleanin duties throu hout the day. ” Durin site visits, a observed variability in the number of inmates out of their cells at any time, ran in from one inmate to as many as1 inmates. When inmates ere out of their cells, social distancin practices ere not consistent. Often a observed inmates con re ate insmall roupstotal ,sometimes hile not earin amas properly coverin their noses and mouths. At other times inmates ho ereincommon areas ould communicate ith inmates inside of cells throu h the pass throu h slot on the cell door, often hile in close pro imity and hile not earin amas properly coverin both their noses and mouths. 4° On November 1, 2020, a as ed counsel for both parties to identify the D.C. re ulations that ould fall ithin the scope of this re uirement. ere informed by the Defendants that on March 1, 2020, the Department of Health issued Emer ency Rule-ma in to order persons to stay at home due to the pandemic. The re ulation included this definition of social distancin re uirements: Social Distancin Re uirements means maintainin at least si ( ) foot social distancin from other individuals. D.C.Re . 829- 8 (Apr , 2020) (amendin 22B DCMR Sections 220 and 229.1). Mayor s Order 2020-0 (une 19, 2020) adopts this definitionas ell. Mayor s Order 2020-0 at Section II. 1. 0 raat9. ! Inmates confined on se re ation housin units are loc eddo nfor24 hourson ee end days. * The cleanin activities performed by the inmate or details supplement the cleanin performed by the contractors ho perform daily cleanin onthe housin units. 24 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 28 of 51 DOC e ecutive staff and other mana ers have informed a that they e pect correctional officers to enforce social distancin re uirements or potentially be sub ect to personnel action. They have e plained that a Correctional Surveillance Center Team ( CSC Team ) monitors video feeds from both facilities around the cloc . Team members are responsible for, amon other matters, reportin to DOC e ecutives if social distancin on housin units is not bein enforced. visited the CSC Team video monitorin center. Accordin to CSC Team staff, the CSC Team as instructed in March or April 2020 to monitor video feeds and identify instances of inmates not earin mas s and or not properly social distancin and for staffnot earin mas s, shields, or enforcin social distancin re uirements. CSC Team staff reported that violations of these CO ID-19-related miti ation re uirements are fre uent and that the CSC Team may see as many as 100 e amples per shift. Information provided to a by the DOC Deputy Director of Operations, to hom the CSC Team reports, indicates that bet een April and November 29, 2020, appro imately 4 disciplinary actions ere ta ena ainst staff for violations of CO ID-19 re uirements, 84 percent of hich ere based on CSC Team observations. While less fre uent than amon inmates, durin recent site visits a observed correctional staff at times not earin re uired mas sand or face shields on housin units and not maintainin social distances amon themselves and hen interactin ith inmates and other non-correctional DOC staff. 4 The DOC has ta en steps to provide additional educational materials to inmates re ardin CO ID-19 and the importance of social distancin . Si na e has been placed throu hout both received a summary of the DOC s analysis of the data, but not the underlyin data itself and thus a did not independently analy e this data. ‘ ore ample, at one point durin a site visit, a observed correctional officers respond to a medical emer ency. Aser eant ho responded to the emer ency, entered the housin unit ithout a face shield. He as offered a shield by a collea ue, but he refused to ear it. 2 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 29 of 51 facilities remindin inmates and staff to remain at least si feet apart. Additionally, DOC e ecutive staff report that be innin in March 2020, educational materials are distributed to every inmate s cell every Wednesday and those materials at times include information related to CO ID-19. More recently, startin at the end of September 2020, the DOC idely distributed electronic tablets intended for educational purposes to inmates at the CD and CT . Distribution of the tablets is e pected to be completed by December 14, 2020. The tablets, hich are available to all inmates e cept those on inta e or se re ation status, may be used daily bet een 9:00 a.m. and 11:00 p.m. Amon other content, the tablets include educational materials re ardin CO ID-19,includin a Quic uidetoCO ID-19, a ResponsetoCO ID-19: Survival uide, and instructions on Wearin Personal Protection E uipment. inally, ith respect to staffin , since a last report in May 2020, the DOC received authori ation and fundin for 20 additional correctional officer positions ho ever, ase plained above, * as of December 1, 2020, the si e of the correctional or force that is available for duty has remained essentially unchan ed. While the number of staff on unavailable for duty status decreased by ,from1 Otol — staffunavailable bet een May 9 and December 1, 2020, the number of vacant positions increased by 9, from 1 to 110 position. ? Conse uently, the number of staff available for duty remained virtually unchan ed. The chart belo compares staffin levels on May 9 and December 1, 2020. E. A, Quic uidetoCO ID-19. E . B, Response to CO ID Survival uide. E . C, Wearin Personal Protective E uipment. 8 raat2 -2. ° T enty of the 9 positions ere ne ly authori ed positions in fiscal year 2021, hich be anon October 1, 2020. 2 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 30 of 51 Total Authorized and Funded Correctional Staffing Complement May 9, 2020 and December 1, 2020 1200 994 Total Positions 1014 Total Positions x 110 1000 we 133 800 600 400 200 5/9/20 12/1/20 B Filled, Available for Duty m Filled, Not Availale for Duty @ Vacant B Concl sion, Re irementT o Since the issuance of the preliminary in unction, the DOC has continued to adopt operational practices to encoura e social distancin . These practices have resulted in substantial restrictions in the time inmates spend out of their cells. While fe er inmates are out of their cells at any time than they ould other ise be in the absence of the out-of-cell time restrictions, inmates ho are out of their cells often do not maintain si feet of social distance. also observed staff members not maintainin social distance on housin units and else here throu hout both facilities. Personal protective e uipment, includin mas s for every inmate, as idely available and ithfe e ceptionsinmates donned mas s._ re uently,ho ever, mas s ere not properly coverin both the inmates noses and mouths. Althou ha observed some staff not earin appropriate PPE, these incidents ere infre uent. 2 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 31 of 51 As part of their effort to miti ate the spread of CO ID-19, the DOC has made educational materials available to inmates in both hardcopy format and, more recently, electronically on ne educational tablets that have been idely distributed to inmates at both facilities. Staffin limitations have persisted, creatin challen es that impede miti ation efforts. Re_ irement Three Defendants shall contin e the services of their ne | contracted environmental health and safet vendor Defendants shall f rther contin e their contract to provide CO ID 1 cleanin services on the sec re and non sec resides of the DOC facilit , incl din the common areas of allho sin nits Defendants shall f rther contin e their efforts to hire a re istered sanitarian Defendants shall ens re that inmates have access to the necessar materials to clean their cells, incl din cleanin sol tions hich protecta ainstCO ID1 and ade atecleanin textiles and tools Defendants shall f rther ens re that DOC staff and inmates are informed of and trained on the proper techni esfor mixin and preparin cleanin sol tions as necessar Defendants shall provide the Co rtan_pdate on their improvements to sanitation b UNE2 ,2020 The Defendants implementation of the re uirements related to environmental health and safety is described belo A The Environmental Health and Safet endor and Contract Cleanin Services The DOC s contract for environmental health and safety services be an in May 2020 and included an initial term of three months, ith three one-month options to e tend. ° The contract included the services of a sanitarian. In mid-Au ust 2020, the Defendants e ercised an option toe tend the contract throu h October 1, 2020, at hich point the contract e pired. ! Durin the term of the contract, a sanitarian employed by the vendor developed a cleanin and disinfectin protocol 7 to provide uidance to the cleanin companies that the ° eeMa_, e rt,E . 10 foracopy of the contractual a reement the Defendants entered for environmental health-related services. ! E .4A, Au ust 18, 2020 Modification of Contract CW82 ,e tendin the contract period to October 1, 2020). > E .4B, SARS-Co -2 (CO ID-19) Disinfection and Cleanin Protocols. 28 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 32 of 51 DOC contracted ith in response to the April 19, 2020 Temporary Restrainin Order ( TRO ), (D t. No. 48), and later conducted site visits to monitor implementation of cleanin practices atthe CD andCT . The vendor issued a total of four inspection reports, t oin uly 2020, 4 one in September 2020, and one in October 2020. Department of Corrections mana ement informed a that the vendor s services ere not e tended beyond October 1, 2020 because the a ency anticipated the environmental health and safety services provided by the vendor ould be performed by a soon-to-be-hired DOC employee ho ould perform ob duties associated ith a sanitarian position. As discussed belo, the individual the Defendants hired to provide these services as not are istered sanitarian and did not have the trainin , e perience or credentials to perform the same functions that ere performed by the contracted sanitarian. In response to the concerns raised about this matter at the November 9, 2020 hearin , DOC mana ement recently informed a that the a ency has decided to contract ith the environmental health and safety vendor hose contract e pired on October 1, 2020 and reinstitute its efforts to hire a re istered sanitarian. On December 11, 2020, the filin date of this report, the Defendants submitted documentation to a indicatin they had entered into a contract ith the vendor for a three-month period, ith 63 An Amended Order filed on April 19, 2020 corrected an error in the initial Order that as issued. The error as based on a typo raphical error in a initial April 2020 report, hich a corrected. The Amended Order addressed professional cleanin services on the secure side of the facility, and in relevant part states: In addition to en a in asanitarian, the defendants shall consider contractin for professional cleanin services on the secure side of the facility, at least until a sanitarian is hired to bolster the e istin environmental health and safety pro ram at both facilities. (D t. No. 0). * E .4C, Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS-Co -2 (CO ID-19) Disinfection and Cleanin Protocols, dated uly 2020 E .4D, ollo -Up Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS-Co -2 (CO ID-19) Disinfection and Cleanin Protocols, dated uly 2 , 2020. Althou h these reports and the t o subse uent reports are all labelled Draft, DOC representatives informed a that they are all considered final versions of the reports. E .4E, ollo -Up Onsite Audit Inspection Report No. 2, Environmental Conditions Inspection for SARS-Co_ - 2(CO ID-19) Disinfection and Cleanin Protocols, dated September 2020. E .4,, ollo -Up Onsite Audit Inspection Report No. , Environmental Conditions Inspection for SARS-Co_ - 2(CO ID-19) Disinfection and Cleanin Protocols, dated October 0, 2020. 29 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 33 of 51 three one-month option periods. The Defendants report that the vendor intends to schedule an inspection before December 2 , 2020. The Defendants continued the contracts for cleanin services on the secure and non- secure sides of the CD and CT ,includin common areas of the housin units. Since e ecutin the contracts on an emer ency basis in May 2020 for an initial three-month period, the Defendants have e tended the contracts repeatedly for short periods, typically for one to three months at atime. Ina November 2 , 2020 e-mail communication to a DOC e ecutive, the Chief Procurement Officer at the D.C. Department of eneral Services, the a ency responsible for contractin on behalf of the DOC for cleanin services at the CD and CT , approved e tension of the DOC cleanin contracts to ebruary 2021, statin his office ould or ith its Bud et Team to ensure fundin is secured to ensure compliance ith the Court Order. ® In addition, he stated that the contracts should be revie ed in anuary 2021 to ensure that the Court Order is still valid andifso e may need to prepare a competitive solicitation in anuary if e must continue the contract beyond ebruary 2021. ° The cleanin contractors atthe CD and CT aree pectedtofollo the disinfection and cleanin protocols developed by the DOC s environmental health and safety vendor. The contractors ere observed and evaluated by the DOC s contracted sanitarian on multiple occasions bet een uly and October 2020. Based on a intervie s and observations, it appears that by and lar e the contractors clean all of the re uisite areas of the facilities every day. Common areas and public spaces on both the secure and non-secure sides of the facilities One of thet ocleanin contractors the DOC en a ed asreplaced. eeE .4 , Modification of Contract DCAM-20-NC-EM-00 9C,e tendin the performance period forthe ne cleanin contractor (at the CD ) throu h ebruary 28, 2021 E . 4H, Modification of Contract DCAM-20-NC-EM-00 9B, e tendin the term of the cleanin contractor (at the CT ) throu h_ ebruary 28, 2021. 8 E .41, November 2 , 2020 e-mail correspondence from eore e isto itanaSte art-Ponder. 69 d. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 34 of 51 appeared noticeably cleaner than a observed durin previous site visits at both the CD and the CT . Department of Corrections mana ers and staff also reported a consistent improvement in facility cleanliness attributable to the contract cleanin teams. B Hirin Re istered Sanitarian The Defendants posted a position vacancy announcement for a _ sanitation inspection specialist onsi dates bet een May 21 and October , 2020. ° The ualifications and educational re uirements for the posted position do not meet the eli ibility re uirements to sit for the re istered sanitariane amination administered by the relevant credentialin body. ! Department of Corrections mana ement has informed a that the a ency elected to post a sanitation inspection specialist vacancy rather than a sanitarian position vacancy in order to e pedite the hirin process. Accordin to DOC mana ement, because the sanitarian position did not already e ist, additional administrative or ould bere uired to develop a ob description and classify the position and these activities ould delay fillin the vacancy. Arevie of publicly available information concernin District of Columbia overnment employees indicates that as of September 0, 2020, there ere District employees ith the title sanitarian, 4o0f hom _ or ed for the Department of Health, and t oof hom _ or ed for the Department of Youth Rehabilitation Services and the Child and amily Services A ency, respectively. Additionally, a found a Department of Health ob vacancy announcement for a sanitarian position that as postedin anuary 2020 *ho ever, ° E .4 , Sanitarian Inspection Specialist ob description and vacancy announcement posted on the follo in dates: May 21,2020 unel ,2020 uly ,2020 uly 1, 2020 September 18, 2020 and September 29, 2020 ! The National Environmental Health Association is the credentialin or ani ation for sanitarians. ee E . 4K, NEHA Re istered Environmental Health Specialist Re istered Sanitarian (REHS RS) Candidate Information Brochure at 1- forthe eli ibility re utrements to sit for the REHS RS credentials ¢ am. > E .4 , Sanitarian ob description and vacancy announcement posted on anuary , 2020. ] Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 35 of 51 the eli ibility re uirements for that position also ere inconsistent ith the re uirements set by the National Environmental Health Association for re istered sanitarians. Department of Corrections representatives stated that after serially postin the ob openin for the sanitation inspection specialist and conductin outreach to public health net or s, thea ency did not receive any applications from re istered sanitarians from amon those applicants ho ualified for the position. Ultimately, the DOC hired a candidate from the pool of applicants ho asal1 -year supervisory employee of thea ency ithouta bac round in environmental health and safety. This individual be an or in as the sanitation inspection specialist on November 9, 2020. intervie edthe ne ly hired sanitation inspection specialist and that person s supervisor. The supervisor developed trainin materials that have been provided to the ne employee. * Both the supervisor and the employee stated that trainin has be un and has included online course or , studyin American Public Health Association Standards for Health Services in Correctional Institutions, and on-the- ob trainin t iceper ee conducted by a District employee ho oversees environmental health and safety pro rams in the District of Columbia st o secure uvenile facilities. The on-the- ob trainin is anticipated to continue for up tot o months. As noted above, follo in the November 9, 2020 hearin , DOC mana ement informed a that the a ency intends to post a position vacancy for are istered sanitarian. Accordin areE .4K, ranote 1 ¢ E .4 ,supra fe 2. 4 E .4M, Trainin Plan for DOC Sanitarian. Those facilities are operated by the District of Columbia Department of Youth Rehabilitation Services. The individual conductin the on-the- ob trainin has the sanitarian ob title. 2 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 36 of 51 to DOC mana ement, as of December 9, 2020, a ob description had been developed and as bein revie ed by staffin the District of Columbia s Office of Human Resources. C Access to Cleanin Materials and Related Trainin There asasi nificant improvement in inmate access to appropriate materials to clean their cells since a prior site visits. The Defendants no provide inmates itha pero ide-based cleanin and disinfectin solution and clean microfiber cloths are delivered to housin unitst ice daily. Atthe CD , inmates and staff reported that they are re uired to clean their cells ith these materials in the mornin at the start of the shift. Atthe CT , inmates reported that they had access to bottles of pero ide solution and microfiber cloths hen they ereallo ed out of their cells. observed that an appropriate supply of clean microfiber cloths and bottles of pero ide solution ere available on every housin unit visited and inmates and staff consistently reported that they had access to the clean cloths and solution on a daily basis. The pero ide solution is purchased by the DOC in a concentrated and hi hly corrosive form. Itis mi ed by desi nated environmental officers prior to its distribution to housin units. The dilution of the concentrated form of the solution is performed by a machine pro rammed to add a specified amount of ater in order to dilute the solution to levels prescribed by the manufacturer. DOC mana ers, detail inmates, and some housin unit staff have reported that inmate detail or ers and correctional officers assi ned to the housin units have been trained on cleanin protocols. Thetrainin , hich as conducted by the DOC Compliance and Revie E .AN, Position Description (Draft) for Environmental Sanitarian CS 1801-12. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 37 of 51 Office, as based on the cleanin protocols developed by the contracted environmental health and safety vendor. Re_ irement Fo r Defendants shall ens re that conditions in isolation nits are non p nitive This incl desens rin reliable and re lar access to le al calls, personal telephone calls, dail sho ers, and clean clothin and clean linens to all inmates on isolation stat s Defendants shall provide the Co rt an _ pdate on their improvements to conditions in isolation cells bb UNE2 , 2020 Since une 18, 2020, hen the preliminary in unction as issued, there have been no isolation units in operation at the CT ho ever, an isolation unit has operated on a limited basis atthe CD durin this period. Ase plained in more detail belo in the narrative related to testin re uirements, a total of 11 inmates tested positive for CO ID-19 atthe CD bet een une 18, 2020 and December 1, 2020. All but one of these cases ere identified as a result of testin conducted at the time of admission, and the last one appears to have been the result of ane ly admitted inmate ithCO ID-19 ho as placed on the mental health unit upon admission and infected another inmate. ® DOC records indicate that upon receipt of a positive test result, each member of this cohort as transferred to NO-2, the unit at the CD desi nated for inmates on medical isolation status. Since the time that the preliminary in unction as issued, there have been a limited number of inmates on isolation status. Unli e the conditions that ere evident before the temporary restrainin order as issued, it appears that inmates on isolation status are able to ma e personal telephone calls, ta e daily sho ers, and receive clean clothin and clean linens raat 9-4. 8 This matter is addressed ra at 41. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 38 of 51 ona ee ly basis. ° Thereis,ho ever, some very limited evidence indicatin that inmates on isolation status may not have access to confidential le al calls.*° Re_irement Five Defendants shall ens re that all inmates have access to confidential, nmonitored le al calls of ad rations fficient to disc ss le al matters Insofar as inmates access to confidential, nmonitored le al calls is reliant onthe seofne technolo , Defendants shalls iftl implement the seofs ch technolo In the conte t of this re uirement,t o different cate ories of le al calls should be considered: attorney-initiated le al calls and inmate-initiated le al calls. The various processes and practices applicable to each cate ory are discussed separately belo A Attorne Initiated Le al Calls Currently, pursuant to a process initiated in April 2020 in response to the pandemic, an attorney canre uestale alcall ithaclient confined atthe CD ortheCT by sendin an email to the DOC case mana ement office. DOC case mana ement staff report that these calls, hich arereferred toas emer ency le al calls, are enerally scheduled fora O-minute period, but the duration may be e tended for up to one hour or more if the attorney re uests additional time.*' After submittin are uest, attorneys are advised of the day they ill receive ale al call from the client but not the precise time that the client ill contact them. Reports from DOC mana ement related to the volume of attorney-initiated emer ency le al calls indicate that a hi h number of le al calls are processed on a monthly basis at both ° ere only able to intervie oneinmate ho as recently on isolation status. Based on this intervie and discussion ith medical, correctional and mana ement staff, tt appears that since the preliminary in unction as issued, in the limited instances in hich an isolation unit has been operated at the CD , inmates have had access to personal telephone calls, daily sho ers, clean clothin and clean linens. 8° One inmate on isolation status reported that hile he as able to spea_ by telephone to his la yer in the case mana er s office, a correctional officer remained in the office durin the telephone call. 8 ere told that the re uest for additional time must be made in the initial email. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 39 of 51 the CD andCT .* Bet een April 20, 2020 and October 1 , 2020, DOC mana ement reports that case mana ers ere responsible for facilitatin 8, 02 emer ency le al calls.* Durin this period, DOC mana ement reports that the avera e daily volume of emer ency le al call re uests permonthran edfromalo of Ocallstoahi hof8 calls, and the avera enumber of case mana ers ho ere present at both facilities to facilitate these calls durin this period asl .™ Each housin unit has an assi ned case mana er. Many case mana ers are assi ned to cover multiple housin units. As of early November 2020, the DOC had a total of — funded case mana er positions, nine of hich ere vacant. Pursuant to the emer ency call re uest process initiated in April 2020, each ee day mornin case mana ers receive a list of emer ency le al calls that they are assi ned to facilitate that day. Case mana ement staff report that most if not all of their or days are devoted to facilitatin attorney-initiated emer ency le al calls. As a result, they are unable tore ularly perform many of their other ob duties,® includin the timely processin of inmate-initiated re uests for le al calls, hich are described in more detail belo ° ® E . A, chart submitted by DOC Director of Pro rams and Case Mana ement, e¢ al Calls, Emer ency Calls to Private and Public Attorneys, April 20 - October 1 , 2020 (sho in for the 10-day period bet cen April 20 and 0, 2020, attorneys re uested 448 le alcallsof hich 8 erecompleted forthe month of May 2020, attorneys re uested 1,28 le alcallsof hich 1,0 ere completed forthe month of une 2020, attorneys re uested 1, 0 le alcallsof hich 1, 41 erecompleted for the month of uly, 2020 attorneys re uested 1, 2 le alcalls of hich 1,410 ere completed forthe month of Au ust 2020, attorneys re uested 1,41 le alcallsof hich1, 1 ere completed for the month of September 2020, attorneys re uested 1, 2 le alcallsof hichl, 4 ere completed and forthe 1 -day period bet een October 1 and 1 , 2020, attorneys re uested 8 Ile alcallsof hich 89 ere completed). 8 E. B, e al Calls Cont., Number of Emer ency e al Calls Re uested by Public and Private Attorneys, April 20 - October 1 , 2020 (statin , fer al a, that of the 8, emer ency le al calls re uested durin this period, 8, 02 ere the responsibility of case mana ers). 84 d. 8 Tn addition to le al calls, case mana ers are responsible for inmate classification, reclassification, and facilitatin various types of inmate re uests for records and services. 8 raat 8- 9. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 40 of 51 In instances in hich attorneys contact the DOC case mana ement office to re uest a le al call, the calls are conducted in one of the follo in aysatboththeCD andCT : 1) in the case mana ers office ith the case mana er present 2)in the inmate s cell usin a cellular telephone and )in an empty cell on the housin unitusin acellular telephone. At the CD , these le al calls are also conducted in an office in the facility s case mana ement suite.® received some conflictin information about hether case mana ers are present hen ale al call is conducted in a case mana er s office. Ho ever, most of the inmates and case mana ers intervie ed confirmed that the case mana er is present in the office hen these calls are conducted, hichis consistent ith the observations that a have made. As of mid-November 2020, attorney-initiated emer ency le al calls ere bein conducted via cell phone in individual cells at both the CD and CT .** Department of Corrections mana ers report that the introduction of the cell phones and handsets initially presented connectivity and other challen es that have lar ely been overcome. or the most part, inmates and staff report that the use of the cell phones in individual cells affords inmates the opportunity to spea in aconfidential settin ith their attorneys. * Attorneys can also re uest to spea_ to their clients atthe CD andCT via 8’ Durin anintervie a conducted in the case mana ement suite, an inmate as observed sittin in the door ay of an open office reportedly spea in to his attorney thin audible distance of correctional and case mana ement staff. 88 The Defendants purchased 0 cell phone and 10 ireless handsets for this purpose on May 1, 2020. All e uipment has been delivered. ee E . C, Order Confirmation, irst Net, OrderNo. 8 40299 (cell phones) E . D, Proof of Delivery, endorAc no led ement Acceptance orm, September 0, 2020 ( ireless handsets). Records related to the delivery of the cell phones and the order for the handsets ere re uested but not available. Accordin to case mana ement supervisors and staff, as of mid-November 2020, nine cell phones _ ere available for use (si atthe CD and three at the CT ). In addition, seven ireless handsets and nine non- ireless handsets ere also available. Department of Corrections mana ement reports that the remainin 41 cell phones ill be deployed after the Defendants receive the supplies necessary to secure them in loc ed bo es. Department of Corrections staff report that the bo es, hich are used for the nine phones that are in use, are intended to ensure that the cell phones are not dama ed or used for unauthori ed purposes. 89° Some inmates reported that they could be overheard by inmates confined in ad acent cells hen spea in from their closed cells. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 41 of 51 videoconference. These conferences are scheduled for a specific ee day time period by staff inthe DOC eneral Counsel s Office. The Defendants report that bet een May 18, 2020 and October 1, 2020,the eneral Counsel s Office coordinated a total of 1,209 videoconferences for inmates atthe CD and CT . Desi nated correctional staff have been trained to help inmates use the videoconference technolo y. have observed and participated in these videoconferences, hich are conducted under conditions that promote the confidentiality of attorney-client communications.” B_ Inmate Initiated Le al Calls Inmates at the CD and CT caninitiatele al calls ith their attorneys by submittin an oral or ritten re uest to the case mana er assi ned to their housin unit.?' Inmates reported substantial delays receivin responses to these re uests. i e the attorney-initiated le al calls, these calls can be conducted in the case mana er s office ith the case mana er present or in a cell on the housin unit. In addition, inmates can ma e free le al calls to their attorneys durin the one-hour daily recreation period, usin the phones mounted on the alls in the day rooms.”” While the DOC reports that these calls are unmonitored, they are not confidential. The DOC Office of eneral Counsel reports that inmates at the CD have been able to ma econfidential and free le al calls from their cells usin tablets provided by the vendor that °° Ininstancesin hich counsel re uires aclient to revie documents or other materials, they are able to do so ona confidential basis durin the videoconference. Additionally, DOC staff report that attorneys can send documents to case mana ers andthe eneral Counsel s Office for transmission to inmates for revie . * SeeE .2C, ranote 1, Sample Inmate Re uest Slip. Inmates can obtain these forms, hich are used to re uestle al calls, amon other re uests, from correctional staff and case mana ers. After the forms are filled out, inmates are re uired to place theminabo here they are pic ed up periodically by the case mana ement staff. Some of the case mana ers a intervie ed reported that they had difficulty ecepin up iththese re uest forms. °2 Defendants report that these calls are free and unmonitored as lon as the attorney s name and telephone number have been appropriately re istered in the system. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 42 of 51 provides telephone services at the CD .° Bet een une 18 and December , 2020, the eneral Counsel s Office reports that 4le al calls eremadeusin these tablets at the CD . In addition to telephone communications, inmates can use the DOC-issued educational tablets to communicate ith their attorneys usin a confidential electronic messa in platform. As of November 0, 2020, DOC mana ement reports that 18 inmates and 1 attorneys have used the messa in platform. C Concl sion, Re irement Five The Defendants have made a substantial investment inne technolo y to address the attorney-client communication challen es that have emer ed as a result of the pandemic. In addition, they have repurposed space in different parts of the CD and CT in order to accommodate confidential attorney-client videoconferences. Moreover, in an effort to ensure the technolo y is used appropriately, correctional staff assi ned tone ly created videoconferencin posts have received trainin ons ills that ere not contemplated by their ob descriptions. inally, case mana ement ob responsibilities have been restructured in order to prioriti e the volume of attorney-client telephone and video communications associated, at least in part, ith the reported and substantial decrease in attorney visits to the CD andCT . Re _irement Six Finall , the Co rt notes that Defendants have increased testin for CO ID1 ,no testin an_ resident to be transferred to Saint Eli abeths Hospital or to a federal correctional facilit Defendants also test an ° Unli ¢ the educational tablets provided to inmates by the DOC, the tablets provided by the vendor contain paid content. The tablets furnish inmates at the CD ith the ability to ma e telephone calls to the same approved contacts they are allo ed to contact from the telephones in the dayrooms, includin their attorneys. Currently, these tablets are only available in limited uantities at both facilities. Ho ever, althou h inmates at the CT also have access to these tablets, they cannot use the telephonic functionality because a different vendor has the contract for telephone services at the CT and these services are currently unavailable under that contract. Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 43 of 51 cell mate of an inmate ho tests positive and all ne residents pon inta e Defendants contin e to test those inmates ho report positive for CO ID1 s mptoms The Co rt ORDERS that Defendants contin e implementin this increased testin The Co rtf rther ORDERS that Defendants pdate the Co rtonan chan es to the testin protocol at DOC facilities, incl din thef rther testin of as mptomatic inmates The Defendants report that they administer CO ID-19 tests to inmates in the follo in circumstances: upon admission prior to certain transports, includin transports to court if inmates are symptomatic and, to any cellmate of aninmate ho tests positive for CO ID-19. In addition to inmate testin , DOC representatives also reported that be innin in October 2020, the Department of Health be anma in CO ID-19 testin available to DOC staff on-site every t o ee s. Thetestin as made available durin hours that included the mornin shift chan eto ma imi e the number of staff ho could ta e advanta e of the testin . A Testin of Ne 1 Admitted Inmates orne ly admitted inmates, the Defendants report that their protocol is to administer a rapid CO ID-19 test and a lab test simultaneously to each inmate upon inta e.°* An additional lab test is administered to each inmate at least seven days later? _ hile the inmate remains housed in the Inta e unit. Once cleared by medical staff, inmates may be moved from the Inta e unit into other housin units. If an inmate tests positive for CO ID-19, they are transferred to housin units desi nated for inmates on isolation status. 4 The lab test reportedly has a hi her sensitivity in detectin SARS-Cov-2 ho ever, results ta e lon er to process. Thus, a rapid test is administered at the same time and the test results are available shortly after the test is administered. If the rapid test returns a positive test result, the inmate is isolated sooner thans he ould other ise be if alab test alone ere administered. Inmates ho refuse testin at the time of admission are cell restricted until medical staff clear them. ° This process is intended to identify inmates ho may have been CO ID-19 positive upon admission, but ho ere still in an incubation period ith viral levels that ere toolo to detect at the time of the initial test administrations. ° Inmates ith acute mental health needs are moved to a speciali ed unit and do not remain on the Inta e unit. Women are admitted at the CT . 40 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 44 of 51 obtained CO ID-19testin data throu h November 0, 2020 from Unity representatives ho maintain clinical testin data. Accordin to that data, overthe 1 days bet een une 18, 2020 and November 0, 2020, the Defendants administered 2, 1 tests to inmates, anavera eof 1 . tests per day. Additionally, tests ere administered on 91 percent of the days durin the period. The testin records indicate that there ere a total of 11 positive tests durin the period, fourin uly,t oin Au ust, four in September, none in October, and one in November. All ereatthe CD . Tenofthe 11 positive tests ere detected by aCO ID-19 test administered upon admission to the facility. Of those 10 inmates testin positive, nine ere housed in SO-2 initially, the Inta e unit, or ere immediately placed in the isolation unit, NO- 2, before spendin ani ht in SO-2. The 10th case involved aninmate ho as placed on the mental health unit, SO- , upon admission. When his initial test result came bac positive, he as moved to the isolation unit. The final positive case asnotane admission, but rather involved aninmate ho as housed on the mental health unit for ane tended period. He as housed on the mental health unit durin the period henthe ne ly admitted inmate referred to above (.e., the 10th positive case) tested positive. The day after the ne ly admitted inmate received his positive test result, the entire mental health unit as tested. One inmate onthe unit as confirmed positive four days later and he as transferred to the isolation unit. B_ Testin of Inmates Transferred to Saint Eli abeths Hospital obtained data re ardin all transfers to Saint Eli abeths Hospital for the period une 18 to October 1, 2020. There ere a total of 24 transfers to that facility.’ ° Accordin to DOC staff, inmates may be transferred to Saint Eli abeths either as a permanent placement or ona temporary basis pendin a mental health assessment. 4l Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 45 of 51 intervie ed DOC and Unity representatives re ardin the prerelease and CO ID-19 testin processes applicable to inmates released to Saint Eli abeths. Accordin to Unity representatives, inmates ho are released to Saint Eli abeths are tested for CO ID-19 in advance of their transfer if Unity staff are notified in advance of the transfer. Unity and DOC records office staff reported, ho ever, that they often are not notified in advance of an inmate transfer to Saint Eli abeths. cross referenced the names of the 24inmates ho ere transferred to Saint Eli abeths durin the revie period ithCO ID-19testin data. T entyt oof the 24 transferred inmates ere tested for CO ID-19 hilein DOC custody ate t prior to their transfer to Saint Eli abeths ho ever, in most cases the testin as not conducted in close temporal pro imity to the transfer. Department of Corrections records indicate that seven of the 20 inmates ere tested ithin the ee prior to the transfer four additional inmates ere transferred bet een one and t o ee spriorto the transfer andthe remainin 11 inmates ere tested bet een 24 and 128 days prior to the transfer to Saint Eli abeths. T o inmates transferred to Saint Eli abeths durin therevie period ere not tested at all prior to the transfer. C Testin of Inmates Transferred to Federal Correctional Facilities obtained data re ardin all transfers to the United States Marshals Service for the period une 18 to October 1, 2020: There ereatotal of 1 transfers. intervie ed Unity staffre ardin CO ID-19testin practices prior to inmate transfers to federal facilities, includin Unity staff involved in the health clearance process for inmates ho are released to the custody of the Marshals Service. Accordin to Unity staff, there is a defined process established by the Marshals Service for releasin inmates to their custody, hich Unity follo s. Unity staff are re uired to complete a Prisoner in Transit Medical 42 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 46 of 51 Summary form for each inmate scheduled to be transferred.** Unity staffe plained that at 2 some point in early 2020, ane section, Section , Mandatory Symptom Screenin for CO ID-19 Prior to Departure rom acility, asaddedtothe form. This ne section includes a record of the inmate s temperature, three screenin —_ uestions, and criteria for a certifyin health authority to medically clear the inmate for transfer. The form does not re uireaCO ID-19 test prior to release and Unity staff stated that in practice, they complete the form for each inmate released to the Marshals Service, but do not complete a CO ID-19 test as a matter of course. Unity representatives clarified that if are uest is made to administera CO ID-19 test (e. ., by the facility to hich the inmate ill be transferred), they ill conduct the test. cross referenced arandom sample of ofthe 1 inmates transferred to the Marshals Service bet een une 18 and October 1,2020 ithCO ID-19testin data. T enty-one inmates received a CO ID-19 test at some point prior to their release to the custody of the Marshals Service and 12 inmates did not. Amon_ this cohort, three inmates received a CO ID-19 test ithin the month prior to their release (ran in from 14 days to 28 days prior to release) and the remainin 18 inmates received a test more than one month prior to their release (ran in from days to 181 days). D Testin of Cellmates of Inmates ho Test Positive As noted above, the Defendants report that cellmates of all inmates ho test positive forCO ID-19 are tested. Of the 11 inmates ho tested positive forCO ID-19 bet een une 18 and October 1, 2020, one inmate had acellmate. The t oinmates ere housed in a cell in the Inta e unit. Testin records indicate that the cellmate of the inmate ho tested positive °8 E . , Prisoner in Transit Medical Summary redacted. This formis referred toas orm 4 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 47 of 51 as tested the same day his cellmate received a positive test result and his test result as ne ative. E Testin of Inmates ho ReportCO ID 1 S mptoms inally, a revie edasample of 49 sic call re uests submitted bet een une 18 and October 1, 2020 that reflected reported symptoms consistent ith CO ID-19 symptoms identified by CDC _ uidelines and or reflected in Unity s reported symptom-based testin practices.”? orty-three of the sic call re uests ere submitted by inmates confined at the CD andsi — ere submitted by inmates confined at the CT . Because 1 ofthe sic call re uest forms did not include the date the inmate submitted the form, they ere e cluded from the analysis. Amon_ the remainin sic callre uestsinthe sample, 2 erefrom the CD and four erefromtheCT . ourteenofthe inmates ho submitted the sic call re uests, 9 percent, eretested forCO ID-19 at some point after they submitted their sic call re uest. ive of the 14 tests ere administered ithint o days of the submission of the sic call re uest and one as administered five days after the submission of the sic call re uest.!°° The remainin ei httests ere administered bet een 20 and 2 days after the sic call re uests ere submitted. There is no indication in the EHR maintained for these inmates that these ei ht tests ere administered in response to the sic call re uests that reported CO ID- 19symptoms. Amon the 22inmates ho ere not tested after reportin symptoms, 1 °” ee App. B, E . 1, supra note 49 ( Symptoms of CO ID-19 include cou h, shortness of breath or difficulty breathin , fever, chills, muscle pain, sore throat, and ne loss of taste orsmell . Other less common symptoms have been reported, includin nausea and vomitin . ) Symptoms noted in the sampled sic call re uests included, but ere not limited to, the follo in : cou hin shortness of breath difficulty breathin fever nausea vomitin loss of appetite headache and or body aches chills and sore throat. Inmate re uests for CO ID-19 tests ere also included in the sample. 100 Three sic call forms e plicitly included are uest fora CO ID-19 test: one reported shortness of breath, one reported upset stomach and vomitin , and one reported nausea and loss of appetite. 44 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 48 of 51 received a CO ID-19 test at some earlier point in their confinement and five _ ere not tested forCO ID-19 durin their confinement. intervie ed Unity s Medical Director re ardin clinical e pectations for testin inmates horeport symptoms consistent ith CO ID-19. The director pointed out that there are some casesin hich there are sound medical e planations for the symptoms the inmate is e periencin consistent ith somethin other than CO ID-19.'°' The director also ac no led ed that providers have some clinical discretion in decidin hen to administer a CO _ ID-19 test to inmates reportin CO ID-19 symptoms, but she indicated that if there is no obvious or clear e planation for the symptoms, a CO ID-19 test should be administered. did not assess the clinical decisions made by providers ith respect to administerin CO ID-19 tests for reportedly symptomatic inmates, hich seemed beyond the scope of this appointment and ould have re uired consultation ith a medical e pert. Arevie of the EHR maintained for inmates in the sample sho sthatinsi cases, the inmate reported durin the sic call visit that the CO ID-19-li e symptoms reflected on the sic call re uest form as resolved and in five other cases the inmate reported that s he had re uested to be seenin sic call for other reasons despite notin symptoms of CO ID-19 on the sic call re uest form.'° The revie of the sampled cases also sho various dia noses reached follo in the sic call visit, such as asthma, constipation, aller ies sinusitis, and acid reflu astrointestinal reflu disease. In none of these cases, as there documentation in the EHR that CO ID-19 as suspected but testin —_as not done. 101 The director cited ase amples inmates dia nosed ith Crohn s disease reportin _astrointestinal symptoms and inmates dia nosed ithasthmareportin acou h. Incases such as these, a provider mi ht conclude the symptoms ere related to the dia nosed chronic condition rather than CO ID-19. 102 These other reasons included re uests for foot cream, medicine for heartburn or treatment for constipation. 4 Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 49 of 51 F Timeliness of Testin Res Its Durin the November 9, 2020 hearin , the Plaintiffsin uired hether a ere a are of any delays inreceivin testin results from laboratories. have revie_ ed the available data re ardin elapsed days from test administration to receipt of testin results. Amon the 2, 1 tests administered bet een une 18 and October 1, 2020, data ere available for 9 percent of the test results. Be innin in Au ust 2020, the date test results ere received as recorded much less fre uently than durin une and uly 2020. ere not able to determine hether the tests ith data sufficient to calculate the number of elapsed days bet een test administration and receipt of testin results(.e., the 9 percent) ere representative of test processin timesin eneral. With that caveat, in the months of October and November 2020, 9 percent of the tests for hich a calculation could be made resulted in test results that ere returned thin four days of the test administration. !° Concl sion, Re irement Six Since the issuance of the preliminary in unction, the DOC has administered over 2, 00 CO ID-19 tests to inmates at the CD and CT , over1 tests perday. Thea ency s testin protocols pay particular emphasis to identifyin and containin anyinmates ithCO ID-19 before they interact ith the eneral population and have an opportunity to communicate the virus to other inmates or staff. Since the issuance of the preliminary in unction, 10 of the 11 inmates ho tested positive forCO ID-19 ere discovered durin routine inta etestin and the 11th case, caused by ane ly admitted inmate s placement on the mental health unit, as 10 orreference, there as sufficient data for 149 of the 1,002 tests administered in those t o months. Thirty-three of the tests ere administeredt o days before the data as provided to a and the results of those tests ere still pendin . Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 50 of 51 uic ly contained because of the inta etestin . Inthe one casein hich aninmate ho tested positive for CO ID-19 had a cellmate, the cellmate as also tested. The evidence indicates that the DOC does not as a matter of eneral practice test inmates ho are transferred to Saint Eli abeths Hospital. Medical staff indicate they often are not informed that aninmate ill be transferred to Saint Eli abeths in advance. The data also indicate that the DOC does not routinely test inmates ho are transferred to federal correctional facilities. Medical staffe plained that they follo the procedure established by the Marshals Service. inally,arevie ofasample of sic call re uests that included symptoms consistent ith CO ID-19 revealed that most inmates ere not tested forCO ID-19 in response to the sic callre uest. Unity medical staffe plained that there is clinical ud ement involved in decidin hether to administera CO ID-19 test to an inmate. did not assess those decisions. CONCLUSION are available to ans er any uestions the Court or the Parties have about the matters addressed in this report. Respectfully submitted, s_raceM. opes rae race M. opes BarNo. 8 0O E ecutive Director Risin for ustice 901 4" Street, N.W., Suite 000 Washin ton, D.C. 20001 202- QO -2224 mlopes @risin for ustice.or Case 1:20-cv-00849-CKK Document 138 Filed 12/12/20 Page 51 of 51 December 11, 2020 Washin ton, D.C. 48 Mar ordan mar mar ordan.consultin 1220 19" Street, N.W. Suite 00 Washin ton, D.C. 200 202-2- 2 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 1 of 63 APPENDI A Exhibit 1A Exhibit 1B Exhibit 1C Exhibit 1D Exhibit 2A Exhibit 2B Exhibit 2C Exhibit 3A Exhibit 3B Exhibit 3C Exhibit 4A Exhibit 4B Exhibit 4C Exhibit 4D Exhibit 4E REPORT SUBMITTED BY AMICUS CURIAE PURSUANT TO SEPTEMBER 16, 2020 ORDER Index to Exhibits Chart, Combined Population of CDF and CTF, by Day and Legal Status, June 18, 2020 — October 31, 2020 Table, Combined Population of CDF and CTF, by Status and Day, June 18, 2020 — October 31, 2020 Table, Admissions to CDF and CTF, by Status and Month, June 18, 2020 — October 31, 2020 Table, Average Length of Stay of Inmates Housed at CDF and CTF, by Status and Month, June 18, 2020 — October 31, 2020 May 18, 2020 Modification of Contract CW68868 Sick Call Request Form Inmate Request Slip Quick Guide to COVID-19 Response to COVID Survival Guide Wearing Personal Protective Equipment August 18, 2020 Modification of Contract CW82753 SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS- CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated July 2020 Follow-Up Onsite Audit Inspection Report, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated July 23, 2020 Follow-Up Onsite Audit Inspection Report No. 2, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated September 2020 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 2 of 63 Exhibit 4F Exhibit 4G Exhibit 4H Exhibit 41 Exhibit 4J Exhibit 4K Exhibit 4L Exhibit 4M Exhibit 4N Exhibit 5A Exhibit 5B Exhibit 5C Exhibit 5D Exhibit 6 APPENDI B App. B, Ex. 1 Follow-Up Onsite Audit Inspection Report No. 3, Environmental Conditions Inspection for SARS-CoV-2 (COVID-19) Disinfection and Cleaning Protocols, dated October 30, 2020 Modification of Contract DCAM-20-NC-EM-0079C Modification of Contract DCAM-20-NC-EM-0079B November 23, 2020 e-mail from George Lewis to Gitana Stewart-Ponder Sanitarian Inspection Specialist, job description and vacancy announcement NEHA Registered Environmental Health Specialist/Registered Sanitarian (REHS/RS) Candidate Information Brochure Sanitarian Job Description and Vacancy Announcement Training Plan for DOC Sanitarian Draft Position Description, Environmental Sanitarian CS-1801-12 Chart, Legal Calls, Emergency Calls to Private and Public Attorneys, April 20 - October 15, 2020 Chart, Legal Calls Cont., Number of Emergency Legal Calls Requested by Public and Private Attorneys, April 20 - October 15, 2020 Order Confirmation, First Net, Order No. 587640299 (cell phones) Proof of Delivery, Technomic, RTS No. 100561 (wireless handsets) Prisoner in Transit Form, Redacted Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Updated December 3, 2020 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 3 of 63 APPENDI A Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 4 of 63 Ex 1A Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 5 of 63 Combined Population of the CDF and the CTF, by Day and Legal Status June 18 - October 31, 2020 700 600 500 , Pretrial lel eV] 400 300 200 Fugitive @ Sentenced Misdemeanant 100 @ Other 0 Writ or Hold oa NaS @ Sentenced Felon (a) ARS > . . ONS uty @ Pretrial Misdemeanor oS Nao nil Ao Ro @ Parole Violator SAS Ao oaNSoaeo Note ono Teta sage Sie @ Hold for Transfer o> oO : ody Se NON Sle ol tS AI O | | O . mn ™N ON GO Jul ae ata pec |e Vy LS | Sa) |) Ve | LT @ Pretrial Felony ONAN AO mo Om rHoOn~A OO A oO om Se # > N GO Ao Aug Bs Bi Lsi8 Ais adtaeas 8 an 2 8 sia 8)\s oO tS BR ~~ A DA oo 2020 PISS S| Alls Sep Yoknw Sawsyg ABS SB 8 So So #2 8 8 & AS 8 § 8 4 BS A ~ S|) 8 8 Oct S Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 6 of 63 Ex 1B Distinct Count of DCDC Row Labels 2020 Jun 6/18/2020 6/19/2020 6/20/2020 6/21/2020 6/22/2020 6/23/2020 6/24/2020 6/25/2020 6/26/2020 6/27/2020 6/28/2020 6/29/2020 6/30/2020 Jul 7/1/2020 7/2/2020 7/3/2020 7/4/2020 7/5/2020 7/6/2020 7/7/2020 7/8/2020 7/9/2020 7/10/2020 7/11/2020 7/12/2020 7/13/2020 7/14/2020 7/15/2020 7/16/2020 7/17/2020 7/18/2020 7/19/2020 7/20/2020 7/21/2020 7/22/2020 7/23/2020 7/24/2020 7/25/2020 7/26/2020 7/27/2020 7/28/2020 7/29/2020 7/30/2020 7/31/2020 Aug 8/1/2020 8/2/2020 8/3/2020 8/4/2020 8/5/2020 8/6/2020 8/7/2020 8/8/2020 8/9/2020 8/10/2020 8/11/2020 8/12/2020 8/13/2020 8/14/2020 8/15/2020 8/16/2020 8/17/2020 8/18/2020 8/19/2020 8/20/2020 8/21/2020 8/22/2020 8/23/2020 8/24/2020 8/25/2020 Fugitive Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 7 of 63 Combined Population of CDF and CTF, by Status and Month Sentenced Misdemeanor BRRPAPWWWWWWWWH OMOODRARARAORARAUUTMDMBDOORARA AR AR A ee ee ee ee ee ee a ee a ee ee DODO BA BAH DDO ON NNN WNWNODDDHD HD OD Other - - MONNNMNN PY MN - +--+ NNH HH H KH WWWARWANNNNNM “ND -+-NND A Nh PDP P PO Pp pO — A A A June 18, 2020 - October 31, 2020 Writ or Hold 94 94 94 94 94 94 94 94 93 93 93 93 93 93 93 93 93 93 93 93 93 93 93 92 92 92 92 91 90 90 90 90 90 91 92 90 90 89 89 89 89 87 86 86 86 86 86 86 86 86 86 84 84 84 84 88 87 87 87 87 87 87 87 87 87 87 87 87 87 Sentenced Felon 72 72 13 13 13 13 13 74 74 75 75 75 74 75 75 75 75 75 75 75 74 75 72 72 72 72 13 72 72 72 71 71 71 71 71 71 13 74 74 74 74 75 75 13 72 72 72 67 68 68 68 69 70 70 70 70 70 72 72 72 72 72 72 13 13 71 71 71 67 Pretrial Parole Hold for Pretrial Grand Misdemeanor Violator Transfer Felony Total 68 67 66 66 66 67 67 66 66 65 67 67 67 67 67 62 63 63 63 64 62 63 61 62 63 63 65 64 64 62 62 65 65 69 68 67 68 70 74 74 13 72 15 76 76 80 80 81 79 79 78 77 78 78 81 81 84 83 85 86 86 84 82 82 78 80 82 82 85 88 88 89 90 90 91 92 91 90 91 91 91 93 92 92 90 90 91 91 92 94 91 91 92 92 92 90 96 96 98 105 106 106 100 105 106 103 104 105 105 100 103 103 108 106 108 108 109 105 110 101 105 105 105 103 103 102 101 101 102 102 108 113 112 114 114 115 115 119 440 440 440 440 440 439 439 439 437 436 437 437 435 434 434 433 434 434 434 434 434 435 435 433 433 433 432 431 431 430 431 431 431 432 430 431 430 429 429 429 429 428 426 428 427 426 426 427 425 426 426 431 432 432 431 432 434 444 438 440 440 436 434 432 431 432 432 432 431 482 487 488 488 488 490 492 491 492 493 497 497 495 494 495 497 500 501 501 501 505 502 504 504 506 506 5114 5114 514 520 517 519 519 518 520 518 519 524 528 528 532 532 535 533 532 534 534 538 534 535 536 537 539 539 542 542 539 543 544 547 547 547 546 550 557 558 558 558 564 1249 1253 1255 1256 1256 1259 1262 1259 1256 1257 1264 1264 1262 1259 1260 1254 1259 1261 1261 1265 1267 1264 1263 1263 1266 1266 1271 1274 1275 1281 1283 1289 1289 1286 1292 1288 1288 1295 1305 1305 1302 1304 1307 1312 1309 1314 1314 1315 1303 1310 1301 1311 1316 1316 1318 1323 1324 1337 1339 1346 1346 1345 1346 1349 1352 1353 1357 1357 1365 Row Labels 8/26/2020 8/27/2020 8/28/2020 8/29/2020 8/30/2020 8/31/2020 Sep 9/1/2020 9/2/2020 9/3/2020 9/4/2020 9/5/2020 9/6/2020 9/7/2020 9/8/2020 9/9/2020 9/10/2020 9/11/2020 9/12/2020 9/13/2020 9/14/2020 9/15/2020 9/16/2020 9/17/2020 9/18/2020 9/19/2020 9/20/2020 9/21/2020 9/22/2020 9/23/2020 9/24/2020 9/25/2020 9/26/2020 9/27/2020 9/28/2020 9/29/2020 9/30/2020 Oct 10/1/2020 10/2/2020 10/3/2020 10/4/2020 10/5/2020 10/6/2020 10/7/2020 10/8/2020 10/9/2020 10/10/2020 10/11/2020 10/12/2020 10/13/2020 10/14/2020 10/15/2020 10/16/2020 10/17/2020 10/18/2020 10/19/2020 10/20/2020 10/21/2020 10/22/2020 10/23/2020 10/24/2020 10/25/2020 10/26/2020 10/27/2020 10/28/2020 10/29/2020 10/30/2020 10/31/2020 Fugitive Sentenced Misdemeanor 10 10 10 9 9 oO THOWMDDMDANDDAWAADDMADMDA®A © Other oa oo OP et — qw pon - — a MNWAWH NMNAHNMNNMNNAWABRRANANA WWD June 18, 2020 - October 31, 2020 Writ or Hold 85 85 85 84 84 84 81 80 80 80 80 80 80 80 80 78 78 78 78 78 78 78 78 78 78 78 78 77 77 78 78 15 15 15 15 15 75 74 74 74 74 75 13 13 13 72 72 72 72 71 71 71 71 71 71 71 71 71 71 71 71 71 71 71 72 71 71 Sentenced Felon 66 67 67 68 68 68 67 69 70 65 66 66 66 66 63 65 63 63 63 63 64 65 61 64 65 65 65 65 66 67 63 65 65 65 67 68 63 61 62 62 62 62 64 64 61 64 64 64 64 59 61 61 62 62 62 63 63 60 62 62 63 63 62 63 62 63 65 Pretrial Parole Hold for Pretrial Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 8 of 63 Combined Population of CDF and CTF, by Status and Month Grand Misdemeanor Violator Transfer Felony Total 88 88 90 90 91 91 97 97 100 103 104 108 108 110 110 112 110 110 114 114 115 112 112 110 109 110 110 112 106 109 114 114 114 114 115 112 113 112 113 116 116 117 113 115 117 117 117 117 119 116 118 115 113 115 115 117 110 110 110 109 110 110 114 114 106 105 106 117 119 123 122 122 122 114 125 133 128 126 131 131 135 130 133 129 130 133 133 135 137 140 138 134 134 134 134 129 127 131 131 130 130 129 137 143 133 134 136 136 128 133 134 136 133 134 134 135 137 137 135 136 136 136 141 142 142 144 146 145 145 149 147 145 150 151 434 431 432 432 432 432 432 432 434 438 439 442 442 445 448 446 447 444 444 444 445 448 450 452 447 445 445 445 448 447 448 449 452 452 451 447 451 452 452 452 452 444 433 435 435 434 434 434 434 433 434 431 434 434 434 436 437 436 437 437 440 440 440 434 434 434 433 563 567 564 567 571 571 576 576 574 582 576 578 578 579 579 573 579 582 586 586 584 584 591 583 588 596 596 591 591 592 595 593 595 595 596 601 600 594 595 600 600 614 607 607 617 615 618 618 623 633 626 633 624 627 627 626 625 630 628 633 635 635 638 645 650 647 644 1364 1367 1371 1373 1378 1378 1375 1389 1399 1402 1398 1412 1413 1422 1419 1416 1415 1415 1426 1426 1429 1432 1441 1433 1432 1439 1440 1438 1431 1432 1436 1437 1441 1440 1444 1450 1456 1437 1440 1450 1450 1447 1435 1439 1449 1448 1452 1452 1461 1463 1464 1461 1456 1461 1461 1470 1465 1467 1468 1472 1478 1478 1487 1484 1486 1487 1487 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 9 of 63 Ex 1C Distinct Count of DCDC Row Labels 2020 Jun 18 - 30 Jul Aug Sep Oct Grand Total Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 10 of 63 Admissions to CDF and CTF, by Status and Month June 18, 2020 - October 31, 2020 Column Labels Pretrial Felony Parole Pretrial Hold for Other Sentenced Sentenced Writ or Fugitive Grand Total Violator Misdemeanor Transfer Felon Misdemeanant_ Hold 20 22 9 3 1 2 51 74 80 41 14 13 4 6 1 199 109 63 52 31 10 13 7 5 1 246 94 118 56 55 15 9 4 1 314 113 83 46 39 15 4 6 287 409 337 198 139 54 30 25 7 1 1044 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 11 of 63 Ex 1D Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 12 of 63 Average Length of Stay of Inmates Housed at CDF and CTF, by Status and Month June 18, 2020 - October 31, 2020 Average of LOS Column Labels Row Labels Pretrial Felony Parole Pretrial Hold for Other Sentenced Sentenced Writor Fugitive Grand Violator Misdemeanor Transfer Felon Misdemeanant_ Hold Total 2020 Jun 18 - 20 273 158 47 333 132 407 128 446 294 Jul 281 151 52 354 146 409 130 472 304 Aug 286 133 50 371 36 433 102 505 1 307 Sep 291 112 51 375 38 459 123 533 302 Oct 296 119 62 379 25 438 103 556 303 Grand Total 288 129 54 366 68 431 112 506 1 303 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 13 of 63 Ex 2A Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 14 of 63 1. Contract Number Page of Pages AMENDMENT OF SOLICITATION / MODIFICATION OF CONTRACT CW68868 1 2 2. Amendment/Modification Number | 3. Effective Date 4. Requisition/Purchase Request No. M0006 May 18, 2020 onererensive Medical Services 6. Issued by: Peter Kern Code | 7. Administered by (If other than line 6) Office of Contracting and Procurement Department of Corrections 441 4" Street, NW Suite 330 South 2000 14° St. NW 7" Floor Washington, DC 20001 Washington, DC 20009 8. Name and Address of Contractor (No. street, city, county, state and zip code) 9A. Amendment of Solicitation No. Unity Health Care, Inc. 1100 New Jersey Ave SE, Suite 500 9B. Dated (See Item 11) Washington DC 20003 —— 10A. Modif f No. Office: 202-715-7900 x Cwesses of Contract/Order No Attn.: Vincent A. Keane vkeane@unityhealthcare.org 10B. Dated (See Item 13) Code Facility 04/05/2019 11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS |_| the above numbered solicitation is amended as set forth in item 14. The hour and date specified for receipt of Offers oO is extended. Ol is not extended. Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods: (a) By completing Items 8 and 15, and returning copies of the amendment: (b) By acknowledging receipt of this amendment on each copy of the offer submitted; or (c) BY separate letter or fax which includes a reference to the solicitation and amendment number. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such may be made by letter or fax, provided each letter or telegram makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified. 12. Accounting and Appropriation Data (If Required) 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS , IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14 A. This change order is issued pursuant to (Specify Authority): 27 DCMR, Chapter 36, Contract Modifications The changes set forth in Item 14 are made in the contract/order no. in item 10A. B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation data etc.) set forth in item 14, pursuant to the authority of 27 DCMR, Chapter 36, Section 3601.2. C. This supplemental agreement is entered into pursuant to authority of: X D. Other (Specify type of modification and authority) ) 27 DCMR, Chapter 36 Sections 3601 (a) negotiated adjustment and f8603.1 change order clause. E. IMPORTANT: — Contractor | is not xX is required to sign this document 14. Description of Amendment/Modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.) This modification is in response to the COVID-19 emergency at the DC Department of Corrections Central Detention Facility and the Correctional Treatment Facility. Mod M0006 adds one CLIN funding NTE $428,672.00 for two Medical Assistant Positions and two Nurse Practioners (NP) or Physician Assistants (PA) from 05/18/2020 through 09/30/2020 and two Option Contract Line Items (CLINSs) (see page 1 of this Mod), which are subject to the availability of funds. The modification is authorized and executed through WebEOC-80767 16. For this Modification only, Unity Health Care, Inc. shall submit invoices directly to Dr. Beth Jordan at beth.jordan @de.gov and to Deborah J. White at deborahj.white@dc.gov. These invoices shall not be applied to the existing purchase order but to the purchase order specifically designated for WebEOC-8076716. All other billing shall continue as specified in the contract. All other terms and conditions remain unchanged. Except as provided herein, all terms and conditions of the document is referenced in Item 9A or 10A remain unchanged and in full force and effect. 15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer Vincent A. Keane Deborah J. White 15B. 15C. Date Signed 16B. District of Columbia 16C. Date Signed I/ Ne a a Koi Deborah Uae U June 2, 2020 (Signature of person authorized to sign) (Signature of Contracting Officer) 08/1 1 /2020 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 15 of 63 AMENDMENT OF SOLICITATION / MODIFICATION OF CONTRACT 1. Contract Number CW68868 Page of Pages 2 12 Mod M0006 adds the following Option CLIN pricing to Section B.3.2.1 Requirements, in B.3.2 Option Year One, in response to COVID-19 and WebEOC-8076716 approval: Contract Line Item No. (CLIN) Labor Category Hourly Labor Rate* Estimated Labor Hours Total Amount CLIN 1010 For the Time Period 05/18/2020 to 09/302020 CLIN 1010A C.3.36 2 Medical Assistants (MA) at 1,088 labor hours each. $ 65.00 2,176 $ 141,440.00 CLIN 1010B C.3.36 2 Nurse Practitioners (NPs) or 2 Physician Assistants (PAs) at 1,088 labor hours each. $ 132.00 2,176 F 287,232.00 Total CLIN 1010 Not-to-Exceed $ 428,672.00 CLIN 1011 For the Time Period 10/01/2020 to 01/31/2021 Option CLIN 1011A C.3.36 2 Medical Assistants (MA) at 984 labor hours each. $ 65.00 1,968 $ 127,920.00 Option CLIN 1011B C.3.36 2 Nurse Practitioners (NPs) or 2 Physician Assistants (PAs) at 984 labor hours each. $ 132.00 1,968 F 259,776.00 Total CLIN 1011 Not-to-Exceed $ 387,696.00 CLIN 1012 For the Time Period 02/01/2021 to 04/14/2021 Option CLIN 1012A C.3.36 2 Medical Assistants (MA) at 584 labor hours each. $ 65.00 1,168 $ 75,920.00 Option CLIN 10121B C.3.36 2 Nurse Practitioners (NPs) or 2 Physician Assistants (PAs) at 584 labor hours each. $ 132.00 1,168 $ 154,176.00 Total CLIN 1011 Not-to-Exceed $ 230,096.00 Grand Total Not-to-Exceed Amount $ 1,046,464.00 *The fixed hourly rates shall be fully loaded and include wages, benefits, overhead, general and admnistrative expenses and profit. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 16 of 63 Ex 2B Case 1:20-cv-00849-CKk paeée2/20 Page 17 of 68S 6001.1 DC Department of Corrections Sick Call Request Form Name/Nombre: Date of Birth/Fecha de Nacimiento: \o Housing \' DCDC# Unit/Unidad Cell/Celda # 0 \ ( Check only one box per slip Marque solo una casilla por papelata / #, I wish to be seen at Sick Call Yo deseo el visto por el doctor of Dental Treatment Tratamiento Dental Mental Health Salud Mental Other Otro I have (check all that apply) Tengo (marque todo lo que corresponda) A fever Una fiebre Coughing Tos Difficulty breathing/ Dificultad para respirar/ shortness of breath falta de aliento Headache/Body Ache Dolor de cabeza o dolor corporal Upset stomach Dolor de barriga Comments/Comentarios For any emergency ask the officer to call the medical unit. Para cualquier emergencia, pidale al oficial que llame al medico de turno. Patient Signature/Firma del paciente Date/Fecha Medical Provider Date Time ry am | pm Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 18 of 63 Ex 2C Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 19 of 63 PP 4030.1 Attachment B DISTRICT’-OF COLUMBIA DEPARTMENT OF CORRECTIONS : _.= INMATE. REQUEST SLIP * DATE NAME DCDC UNIT CELL { }RECORDS OFFICE { } CASE MANAGER { } CHAPLAINS OFFICE { } INMATE CLOTHING { } FINANCIAL ACCOUNT BALANCE { } LEGAL CALL { } INMATE PROPERTY { }NOTARY { } FACE SHEET (unavalLaBte IF YOUR SENTENCE IS OVER1 YEAR) { } LAW LIBRARY { }OTHER : -PLEASE'EXPLAIN THE’NATURE OF YOUR REQUEST:BELOW OFFICIAL/CASE MANAGER COMMENTS DATE: STAFF SIGNATURE: Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 20 of 63 Ex A Case 1:20-cv-00849-CKK DorAarstentthterchaviindem caviney¥2O Page 21 of 63 What is a novel coronavirus? A novel coronavirus is a new coronavirus that has not been previously identified. The virus causing coronavirus disease 2019 (COVID-19), is not the same as the coronaviruses that commonly circulate among humans and cause mild illness, like the common cold. Why is the disease called coronavirus disease 2019, COVID-19? On February 11, 2020 the World Health Organization (WHO) announced an official name for the disease that is causing the 2019 novel coronavirus outbreak, first identified in Wuhan China. The new name of this disease is coronavirus disease 2019, abbreviated as COVID-19. In COVID-19, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ and ‘D’ for disease. Formerly, this disease was referred to as “2019 novel coronavirus” or “2019-nCoV”. There are many types of human coronaviruses including some that commonly cause mild upper-respiratory tract illnesses. COVID-19 is a new disease, caused by a novel (or new) coronavirus that has not previously been seen in humans. The name of this disease was selected following WHO best practice for naming of new human infectious diseases. What’s the source of the virus? COVID-19 is caused by a coronavirus called SARS-CoV-2. Coronaviruses are a large family of viruses that are common in people and may different species of animals, including camels, cattle, cats, and bats. Rarely, animal coronaviruses can infect people and then spread between people. This occurred with MERS-CoV and SARS-CoV, and now with the virus that causes COVID-19. The SARS-CoV-2 virus is a betacoronavirus, like MERS CoV and SARS CoV All three of these viruses have their origins in bats The sequences from U.S. patients are similar to the one that China initially posted, suggesting a likely single, recent emergence of this virus from an animal reservoir However, the exact source of this virus is unknown How does the virus spread? The virus that causes COVID 19 is thought to spread mainly from person to person, mainly through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs Spread is more likely when people are in close contact with one another (within about 6 feet). COVID 19 seems to be spreading easily and sustainably in the community (“community spread”) in many affected geographic areas. Community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected Why are we seeing a rise in cases? The number of cases of COVID-19 being reported in the United States is rising due to increased laboratory testing and reporting across the country. The growing number of cases in part reflects the rapid spread of COVID-19 as many U.S. states and territories experience community spread. More detailed and accurate data will allow us to better understand and track the size and scope of the outbreak and strengthen prevention and response efforts. Can someone who has had COVID-19 spread illness to others? The virus that causes COVID-19 is spreading from person-to-person. People are thought to be most contagious when they are symptomatic (the sickest). That is why CDC recommends that these patients be isolated either in the hospital or at home (depending on how sick they are) until they are better and no longer pose a risk of infecting others. More recently the virus has also been detected in asymptomatic persons. How long someone is actively sick can vary so the decision on when to release someone from isolation is made using a test-based or non-test-based strategy (i.e. time since illness started and time since recovery) in consultation with state and local public health officials. The decision involves considering the specifics of each situation, including disease severity, illness signs and symptoms, and the results of laboratory testing for that patient. Someone who has been released from isolation is not considered to pose a risk of infection to others. Can someone who has been quarantined for COVID-19 spread the illness to others? Quarantine means separating a person or group of people who have been exposed to a contagious disease but have not developed illness (symptoms) from others who have not been exposed, in order to prevent the possible spread of that disease. Quarantine is usually established for the incubation period of the communicable disease, which is the 1/2 Case 1:20-cv-00849-CKK DoraarstentthSerchaviindem caviney¥2O Page 22 of 63 span of time during which people have developed illness after exposure. For COVID-19, the period of quarantine is 14 days from the last date of exposure because the incubation period for this virus is 2 to 14 days. Someone who has been released from COVID-19 quarantine is not considered a risk for spreading the virus to others because they have not developed illness during the incubation period. Can I get sick with COVID-19 if it’s on food? Based on information about this novel coronavirus thus far, it seems unlikely that COVID-19 can be transmitted through food — additional investigation is needed. Will warm weather stop the outbreak of COVID-19? It is not yet known whether weather and temperature affect the spread of COVID-19. Some other viruses, like those that cause the common cold and flu, spread more during cold weather months but that does not mean it is impossible to become sick with these viruses during other months. There is much more to learn about the transmissibility, severity, and other features associated with COVID-19 and investigations are ongoing. What are the symptoms and complications that COVID-19 can cause? Current symptoms reported for patients with COVID-19 have included mild to severe respiratory illness with fever!, cough, and difficulty breathing. If I recovered from COVID-19, will I be immune to it? CDC and partners are investigating to determine if you can get sick with COVID-19 more than once. At this time, we are not sure if you can become re-infected. Until we know more, continue to take steps to protect yourself and others. Who is at higher risk for serious illness from COVID-19? COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. Based on what we know now, those at high-risk for severe illness from COVID-19 are: e People aged 65 years and older e People who live in a nursing home or long-term care facility People of all ages with underlying medical conditions, particularly if not well controlled, including: e People with chronic lung disease or moderate to severe asthma e People who have serious heart conditions e People who are immunocompromised e People with severe obesity (body mass index [BMI] >40) e People with diabetes e People with chronic kidney disease undergoing dialysis e People with liver disease What kind of tesng is being used t_ o diagnose if | have COVID-19? There are actually many tests being used to diagnose COVID-19 that the U.S. Food & Drug Administration (FDA) has authorized for use during the current emergency. All of these diagnostic tests identify the virus in samples from the respiratory system, such as from nasal or nasopharyngeal swabs. 2/2 Case 1:20-cv-00849-CKK coo Gousmrenénitse-t4 Pretdbevbulserrbid 2therP age 23 of 63 There is currently no vaccine to prevent coronavirus disease 2019 (COVID-19), The best way to prevent illness is to avoid being exposed to this virus. The virus is thought to spread mainly from person-to-person: e Between people who are in close contact with one another (within about 6 feet). e Through respiratory droplets produced when an infected person coughs, sneezes or talks. e These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. e Some recent studies have suggested that COVID-19 may be spread by people who are not showing symptoms. ¢ Wash your hands often with soap and water for at least 20 seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing. ¢ If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry. ¢ Avoid touching your eyes, nose, and mouth with unwashed hands. Avoid close contact with people who are sick. Put distance between yourself and other people, at least 6 feet when possible(social distancing) e Remember that some people without symptoms may be able to spread virus. e You could spread COVID-19 to others even if you do not feel sick. e Everyone should wear a cloth face cover when they have to go out in public (cloth face coverings should not be placed on anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance). e The cloth face cover is meant to protect other people in case you are infected. e Do NOT use a facemask meant for a healthcare worker. e Continue to keep about 6 feet between yourself and others. The cloth face cover is not a substitute for social distancing. 1/2 Case 1:20-cv-00849-CKK coo G@ousirenénitse-t4 Pretdbevbulserbad 2therP age 24 of 63 If you are in a private setting and do not have on your cloth face covering, remember to always cover your mouth and nose witha __ tissue when you cough or sneeze or use the inside of your elbow. Throw used tissues in the trash. Immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with ahand __ sanitizer that contains at least 60% alcohol. ¢ Clean AND disinfect frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks. « If surfaces are dirty, clean them. Use detergent or soap and water prior to disinfection. 2/2 Case 1:2Crem-+ihOeate: aii Guida cel eraiad SieniLof Cohan! 19 it/ CetetfbnareaqnetitianiFGdities Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials. In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed undermedical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e g , avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e g , rearranging chairs in the dining hall to increase distance between them) Although social distancing is challenging to practice in correctional and detention environments, it is a commerstone of reducing transmission of respiratory diseases such as COVID 19 CDC guidance recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. \ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions: 1. Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Difficulty breathing? 2. In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)? 1/2 Case 1:2Crem-+hOente: aii Guida cel eraiad SieniLof Cohan! 19 it/ Cct/etfbnaeaqnetehiaaiFGdities \ The following is a protocol for medical providers to safely check an individual’s temperature: Perform hand hygiene Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves Check individual’s temperature If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. Remove and discard PPE and perform hand hygiene 2/2 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 27 of 63 Ex B Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 28 of 63 Introduction Covid-19 is a virus that has spread around the world. It has impacted every area of our daily lives. Businesses have shut their doors, people have been asked to “shelter in place,” many people have become unemployed, and the government has been issuing subsidy checks to citizens just to help people get through their financial crises. Everyone is under stress. As so often happens, people are rallying, trying to help one another and giving lifestyle “tips” or writing self-help manuals about staying healthy. These include advice for being healthy during Covid-19, as well as staying emotionally and spiritually well when there is such disruption in our lives. Unfortunately, these resources don’t tend to address the needs of those of us in community living situations, such as jails or prisons, mental health facilities, long term rest-homes, shelters, etc. These settings present a variety of challenges, such as “Ihave a cell mate, so it is hard to get time alone in my room. Sometimes, lack of personal space and privacy, rules limiting when I’m feeling stressed, | go take a shower just so | can be alone for a few minutes and take time to do some breathing exercises that help me feel better.” personal freedom, and lack of easy access to basic needs, such as running water or the ability to distance yourself from others. If you are currently in this situation, this manual is for you and it’s written by people that have lived in these kinds of environments!!! This information is also meant to provide information to people who may not have access to the daily news about the new coronavirus. Included is a section on the different ways we may be experiencing stress related to all the life changes caused by the virus. Strategies to stay well- physically, emotionally, intellectually and spiritually — in Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 29 of 63 challenging environments are also included. Lastly, there’s a section to inspire you to use your wisdom and survival skills to share with others that are living in the same situation right now. This is called “peer support” and it is powerful! Peer support, or helping one another, can be lifesaving at times like these... It helps people we connect with and ourselves as well. With this guide, we honor your inner survivor and value your willingness to be of service to others. Responding to Covid-19 e These are difficult times for everyone. COVID-19 has impacted all Ww of us in many ways. This can be especially difficult for those of us who don’t have a strong network of support or who are isolated in jails, prisons, mental health facilities, shelters or living on the streets. Because of Covid-19 people, activities and resources that usually support our health may have been removed or changed in significant ways. Fortunately, you are a survivor and this guide is designed to remind you of all the ways you have survived and thrived through other difficult life situations. With this in mind, this guide asks you to share your skills with others around you by using what you learn to help them through this tough time. Together, you are NOT alone... you are simply people together, going through a difficult time and relying on each other’s strength, kindness and skills to continue your journey of wellness! Let’s start by sharing some basic information about COVID-19 and the way it may be impacting our bodies... What is Covid-19? COVID-19 (also called “Coronavirus 20/9”) is a virus that is transmitted from person to person: o when people who are in close contact with one another within about 6 feet or less. o through respiratory droplets that pop out when an infected person coughs, sneezes or is simply speaking. o when these droplets land in the mouths, eyes or noses of people who are nearby or when they’re inhaled into the lungs. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 30 of 63 Its NEW!! The Covid-19 virus is called a “novel” or “new” coronavirus. This means that humans don’t have any immunity (natural disease protection) and there are no treatments or vaccines for it. Scientists have been able to create a test that can determine if someone has the virus but the tests aren’t widely available yet. That’s one of the reasons why this virus is so different and so dangerous. It can spread from person to person easily. Some people get really sick or die because there isn’t any treatment available. Of course, medical hospitals can treat the symptoms that develop, like pneumonia and other life- threatening lung diseases. But if too many people get really sick at the same time, we don’t have enough hospital beds and equipment needed for that kind of resource demand. Right now, the effort is to SLOW the spread so hospitals can manage the people that are already sick with the virus. Why the Big Deal? The “social isolation” (staying in your living quarters) has been important because the virus has some sneaky ways that lead to it spreading easily: = People can carry the virus and spread it to others without having any symptoms themselves. Any of us could be a silent carrier, infecting others without even knowing it. This is called being “asymptomatic”. = Also, people who get sick may have been carrying and spreading the virus for up to two weeks before showing symptoms. This is why there are such dramatic efforts to keep people apart and “social distance.” Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 31 of 63 Some Quick Facts and Myth Busters Here are some quick facts and myth busters from the Center for Disease Control (CDC). Because the virus first emerged in China, rumors started that this was an Asian or Chinese Diseases can make anyone sick regardless of their race or ethnicity. People of Asian descent, including Chinese Americans, are not more likely to get COVID-19 than any other American. Help stop fear by letting people know that being of Asian descent does not increase the chance of getting or spreading COVID-19. Exposure to people with Covid-19 increases your risk of getting sick with the virus. But for some people, the impact of the virus is more likely to be deadly. People at greater risk are: = People over 65 years old disease. Like all viruses, Covid-19 doesn’t discriminate. The coronavirus is called a “pandemic” because it’s now a world-wide illness that has infected about 3 % million people as of this writing. This number continues to increase every day. FACT Some people are at increased risk of 2 getting COVID-19. People who have been in close contact with a person known to have COVID-19 or people who live in or have recently been in an area with ongoing spread are at an increased risk of exposure. = Strong bodies can probably fight off the virus so people will get sick but recover. However, people with weak bodies or immune systems can get deathly ill. People who have pre-existing illnesses, especially lung conditions, heart conditions, diabetes, etc. are especially vulnerable. Since we can have the virus before we actually get any symptoms, it’s suggested that people Someone who has completed quarantine or has been released from isolation does not pose a risk of infection to other people. For up-to-date information, visit CDC’s coronavirus disease 2019 web page. “quarantine” or isolate themselves for two weeks after they know they’ve been exposed to someone with the virus. This is to slow down the spread. As of right now, with what the experts have learned about the disease so far, it’s believed that if a person who was exposed hasn’t gotten any Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 32 of 63 symptoms within two weeks, he or she wasn’t infected and is safe to go back out into the community. The symptoms of Covid-19 are very similar to other You can help stop COVID-19 common illnesses, like the yearly FLU. If you have any by knowing the signs and symptoms: of these symptoms, tell the correctional staff or another « Fever * Cough service provider where you are housed. Testing 1s usually available to those with symptoms and you can find out if you do or don’t have the virus. If you’re in a + Shortness of breath living situation where you don’t have quick access to Seek medical advice if you - Develop symptoms AND medical support but think you might have the virus, it’s probably best to assume you do and take precautions to minimize spreading the illness to others. These are - Have been in close contact with a person known to have COVID-19 or if you live in or have recently been in an area with There is currently no vaccine to prevent the 2019 onaoina spread of COVID-19. discussed below. coronavirus disease (COVID-19). The best way to prevent illness is to avoid being exposed to this virus if it’s possible. Of course, for most people total isolation from others isn’t possible. For people currently in jails, mental health institutions or other residential facilities, isolation can be more challenging. However, there are some precautions and recommended strategies that can help you minimize your chances of getting the virus. There are simple things you can do to help keep yourself and others healthy. RECOMMENDED STRATEGIES Washing your hands with soap for at least 20 seconds is recommended because soap is a great virus killer! The virus often gets into our bodies by traveling from our hands to our nose, mouth or eyes when we touch our face. It can also get inside our bodies when we breathe. So, the more you wash your hands, the more likely you are to kill any of the virus Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 33 of 63 germs you are exposed to during the day. If soap isn’t available, using a hand sanitizer with at least 60% alcohol can also help. Be sure to cover all surfaces of your hands and rub them together until the hand sanitizer fully covers both hands and they feel dry. r Avoiding close contact with others when possible is important, especially i: | % with people who are sick. A good way to help is putting distance ‘| between yourself and other people (at least 6 ft), which can lessen your chance of getting the virus. This is particularly important for people who are at higher risk of getting very sick (see below). Wearing a face mask is important to help minimize the chance that you will infect other people. The Covid-19 virus is so dangerous because you can have it and spread it to others without having any symptoms at all. Facemasks provide a barrier for the nose and mouth to either transmit droplets or receive them... It’s protection for everyone! THINGS YOU CAN DO ANYWHERE Some people don’t have the ability to follow the CDC recommendations because of the imitations of homelessness, or living in medical or penal institutions. Here are some other ways to keep yourself and others safe. Can’t Wash Your Hands Often? Try these things you can do anywhere: Hand washing decreases the risk of carrying the virus from surfaces you touched to your eyes, nose and mouth. We tend to touch our faces, a lot — way more than we may realize — and this is one of the quickest routes for the virus to carry from person to person. If you can’t wash your hands often, you can still: e Try to limit how many surfaces you touch. Things like door handles, counters and other smooth surfaces can hold the virus for several days. e@ Use your sleeve over your hands. When you go through doors or gates or when you pick up something from a counter, use an article of clothing like your sleeve to cover your hand. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 34 of 63 e Try to keep your hands away from your face. This sounds simple, but it’s really hard. Try to pay attention for just 15 minutes and you’ll see how many times your hand goes to your face. If you can’t wash your hands, keeping your hands from your face will greatly increase your safety. e Cover your mouth and nose with your shirt. When you’re in shared spaces where you can’t keep at least 6 feet between you and others, you might want to pull up your shirt or clothing up over your face to cover your mouth and nose like a mask. @ Cough or sneeze into your inner arm or clothing. When you cough or sneeze, use the inner space of your elbow or a piece of clothing rather than covering your mouth with your hands. If you use tissue, throw it away as soon you’re done. Don’t save it. e Turn your head and cover your mouth. If someone else is coughing or sneezing in your presence, try to turn your head away from the person. Stay turned away for about 30 seconds if you can. You can also use a piece of clothing to cover your mouth. Live in Close Contact With Others? Try these things when you can’t socially distance: You may not have the option of keeping a good distance between you and others in your living situation. If this is your situation, try this option: e Ifyou share a room or cell, you might want to determine an imaginary line in the room where each of you has your own space. You can even put something on the floor to remind both of you about the line, such as a piece of clothing, a sock, a sheet, etc. THINGS YOU CAN EXPECT FROM STAFF: e If you’re in a residential living situation and everyone is on lock-down, then you’re only exposed to each other. If you’ve been on lock-down for two weeks and no one has gotten sick, you’re probably pretty safe. e If staff are coming in and out, it’s important that they should be using safety practices like wearing masks and washing their hands so they don’t bring the virus into your living setting. This will help to make sure you’ re safe! e Ifyou’re in a jail or prison, you should know that they’ve temporarily stopped all transfers of people from other jails and prisons, trying to decrease any spread. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 35 of 63 If you’re concerned that the staff around you are not following safety protocols to keep you healthy, you have the right to reach out to the unit supervisor. To ‘advocate’ means that you speak up for your rights. Filling out a grievance form or talking to a floor supervisor is a way to make sure your concerns about your health are heard. If you feel empowered in your setting, you might also suggest some safety practices that are being currently used in other institutions. You can also use your voice to highlight some examples of great practices other places are doing to effectively handle this crisis in outside hospitals, jails, etc. Testing is slowly becoming more available to people beyond those who = are already showing symptoms. There are groups of scientists who are = working every day to try to create medications to lessen the symptoms of lJ COVID-19, others are working to create a vaccine. Like you, everyone is trying their best to slow the spread by practicing what’s in this manual. These practices are important because our actions help keep the virus from infecting those who are most vulnerable. These are people who are older and have already have serious medical conditions, such as COPD, diabetes, heart conditions, HIV, immunity illnesses, etc. How Might Covid-19 Affect Us? STRESS is a natural response to uncertainty and disruption, and so in this time when our entire way of life has been disrupted, everyone everywhere is feeling some level of stress. We each experience stress in our own unique ways. As we grow up, we learn how to respond to challenges by watching those around us for cues of what is and isn’t acceptable. In addition, our bodies have natural defense system that sends a signal when things are out of sync with our body and mind so we can react to keep ourselves safe. Think about what happens when you startle a dog or cat. Their first reaction is to get into a defensive posture and hiss or bark. In an instant, they’re ready to protect themselves. Humans are much the same way. We also get flooded with chemicals, like adrenaline, that assist our minds and bodies to prepare to combat danger. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 36 of 63 Our Internal Alarm: Those of us who have grown up in homes with violence, abuse or neglect may have had our “danger” alert activated many times. After too many alerts over time, parts of our system can get worn out and broken. For some of us, the “alarm bell” goes off often, even when there’s not any danger. For example, our alarm bell may signal a five-alarm fire, when the FiGr i v; ' Linwiy E Our Response to Danger: While some of us respond to our internal alarm by going into a situation is really only a small amount of smoke. In these cases, our bodies are flooded with overwhelming amounts of “fight or flight” chemicals. We’re getting ready for a battle that doesn’t exist. For others, the alarm bell might fail to ring when needed, leaving us vulnerable and unprepared to address a danger that may exist. “fight” stance, others of us may respond in the opposite way by “freezing” or “checking out.” This is known as dissociating and is an automatic biological response. In the same way a deer freezes in the middle of the road in fear when a car approaches, we sometimes go into a freeze mode. This can lead to brain fog, an inability to speak or speak clearly, feeling stuck in place and unable to move, or spacing out. The spacing out or dissociating can be mild or more extreme. It can include a complete memory loss of the time that passes like a blackout. Here’s another way to look at it, graphically: FLIPPING OUR LID Make a fist with your thumb tucked inside your fingers. This is a hand model of our brain. THUMB In this hand model, our fingers represent where our emotions and memories live. The thumb is called the Limbic System and it is where our Fight, Flight, Freeze reactions to danger are triggered. FINGERS In this hand model, our fingers represent our Rational Brain. When our rational brain is activated, we are able to think, reason and make decisions about how we are going to respond to danger. As in the image above, it covers our Limbic System (thumb) and we use it to think through situations. Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 37 of 63 However, at times when our Limbic System (thumb) is really activated, it can cause us to “flip our lid,” and our rational brain (fingers) can be taken over by our emotions. When the Rational Brain loses control of emotions, we can’t think clearly. To “un-flip” our lids, we can use the strategies included in this manual to help us feel grounded, calm our bodies and mind, and feel more empowered to make good decisions. Distress: What YOU Might Be Experiencing Experts agree that a core component of stress is the perception of threat and danger. Ironically, our “stress” system is meant to protect us when we’re in danger but it can sometimes work against us. When we’re stressed, we tend to experience distress in our most vulnerable personal areas. This may be physical, emotional, intellectual and/or spiritual vulnerability. Outward Signs of Distress: Often, when we experience distress it shows up in our behavior. It’s important to understand and know when our own behavior is a signal that we may be experiencing physical, emotional, intellectual or spiritual distress. Some “behavioral cues” include: e@ Repeating old habits or patterns: Do you find that you are tempted to start smoking cigarettes, even though you quit years ago? Picking up old habits as a way to cope is very common and could be a signal to you that you are distressed. e Lashing out, yelling or throwing things: When our internal distress levels reach a boiling point, we may be tempted to release stress tension out of frustration. This may bea warning sign that it’s time to relieve our stress in healthier ways. e Pacing, leg shaking, or wringing our hands: Sometimes when our nervous system needs to release tension, it does so through our body. Be aware of these stress signals. As you read these examples, think about circumstances you’ve been thinking about or feeling over the past few days or weeks. 10 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 38 of 63 Physical Distress Imagine you’re walking down the street. When you turn the comer, you see a lion staring at you. Right away, your body starts pumping out chemicals that will allow you to do what’s needed to survive if the lion 2 attacks. That’s really helpful when there’s a lion but not so good when y we're worried about things going on around us, like COVID-19. Our brains all have the same stress reaction to any kind of “danger” and all those neurochemicals can cause all sorts of physical discomforts. This includes: sweaty palms heart fluttering (palpitations) shortness of breath dizziness or headaches tingling in fingers or toes aches and pains (old injuries will often ache again !!) muscle tension restlessness digestive issues like diarrhea or constipation nausea CAUTION! Sometimes we may think that our physical discomforts are caused by stress, but they can actually be physical symptoms of COVID-19. Before you assume it’s stress, have it checked out! If you have ANY of the following symptoms, please tell the staff where you currently reside! e cough difficulty breathing fever chills muscle pain sore throat persistent pain or pressure in the chest Being flushed (lacking of color) in the lips or face Think about your body, describe the physical sensations have you been experiencing over the past few weeks. 11 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 39 of 63 a One strategy: Breathing Why this may help: Normally, we breathe very shallowly, up in our chests. Learning to breathe down into our stomachs first helps us naturally calm down. It also brings more oxygen into our body and brain, which helps us think more clearly. Belly breathing before a stressful situation can be very helpful. Here is what you do: First, breathe as you normally do What parts of your body move as you breathe? Notice what it feels like Now, sit and place your hand on your stomach With your mouth closed, breathe in for four seconds or until you feel your whole chest fill with air all the way down to your belly Hold in the air for four seconds Slowly blow all the air out of your lungs until it’s all gone Try this three or four times! UUUY UUY Did you notice anything different about how you feel? oO Intellectual Distress o When our inner sensors tell us that something isn’t right and we may be in danger, our brains work differently. We can think of our brains as being three brains in one. Part of our brain is automatically dedicated to our survival. It runs our heart, our breathing, etc. A second part of our brain is called our “emotional brain.” This part of the brain rules our emotions and holds our memories. Sometimes our emotions will have words connected to them and sometimes they’re just feelings with no words. Our third brain is where we do the complex thinking needed for decision making, using judgment, navigating social relationships, etc. It’s this third brain that we rely on most to guide us through the complex nature of living with others in the world. However, in times of stress, our third brain steps aside a bit to allow the survival brain to be more in charge. This can lead to thinking problems, including: e difficulty concentrating e difficulty with decision making 12 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 40 of 63 retaining information hard time processing information less patience with others more difficulty managing relationships that are complicated Think about your OWN THINKING lately. What kinds of thoughts have felt challenging? O ° One strategy: Sphere of Influence 5 Why this may help: We all would like to think that we have good control over a lot of things. We Don’t!! We have even LESS control when we’re in places where others make the majority of the rules, such as jails, prisons, mental health facilities, residential settings, etc. For those of us with trauma histories, it can feel really scary to lose our inner sense of control. A lot of times though, our distress isn’t about the realities around us. It’s more about our own inner confusion, and where we do and don’t have control. Trying to be in control of those things over which we have no power can lead to inner turmoil. One SUEOn way to help ourselves in this situation is to figure out what we DO control and DON’T have control over. The exercise below may help to decrease some of our inner racing thoughts or obsessive concerns. Instructions are on the page after the Sphere of Control model... 13 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 41 of 63 Taking back my Control Instructions: 1. Take a moment to consider all the things that are contributing to you feeling overwhelmed, e.g. limited time to yourself, ongoing worry about someone you care about, feeling tired, you don't feel well, etc. Ifit helps, quickly scribble your thoughts on a piece of paper. 2. Add each 'Overwhelm Item' to your Spheres of Influence in the following way: 14 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 42 of 63 e Ifyou have COMPLETE CONTROL over the item (i.e., you can resolve it on your own without needing anyone else's help or input), write it down in the first circle labeled "WITHIN MY CONTROL" e Ifyou have PARTIAL CONTROL or can INFLUENCE the item (i.e., you can resolve part of the item or influence the outcome through your actions or behavior), write this item in the second circle labeled "I CAN INFLUENCE." e Ifthe item is COMPLETELY OUTSIDE of your control or influence (i.¢., there is nothing you could do or say that could directly impact this item), write this item OUTSIDE in the area labeled "EVERYTHING ELSE..." e Ifyou think of other things that are overwhelming you as you do this exercise, add those into your Sphere of Influence as above. From your "Spheres of Influence" that you created: = FOR the items you have CONTROL over, TAKE ACTION (however small) on at least ONE as soon as possible — it will help you feel better. = FOR the items you have PARTIAL CONTROL or INFLUENCE over, write down the steps you can take and when you might be able to do that. = Finally (and most importantly) LET GO of EVERYTHING ELSE! Strikethrough each of these items on your "Spheres of Influence." If you can't control or influence it, then it's a waste of your precious energy to even think about it. Here’s a familiar quote that may help. (Feel free to replace the word “God” with what is appropriate to your beliefs!!): Emotional Distress For the general public, the mental health effects of COVID-19 are as important to address as the physical health effects. For the one in five who already have mental health challenges, the emotional impact of being physically ill can be even greater. Those of us that are separated from friends and family due to being in jails, prisons, hospitals, shelters or other facilities, may be feeling additional levels of emotional disconnection and distress during these times. As a result, you may be feeling: 15 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 43 of 63 Constant worry or anxiety Overwhelmed/Stressed Difficulty relaxing Confusion Sense of being overwhelmed Feeling powerless Mood swings Feelings of hopelessness Irritability or short temper Fear and worry about your own health and the health of your loved ones Changes in sleep or eating patterns Difficulty sleeping or concentrating Worsening of chronic health problems Worsening of mental health conditions Increased use of alcohol, tobacco or other drugs Think about your OWN Emotions. What kinds of emotions have you been feeling? Have you noticed other things that let you know that you’re feeling emotional stress? © © ’ o ~ a One strategy: Journaling -~)- Ss Why this may help: Thinking while you write often has this magical quality of clarifying your thoughts. Research has shown that spending time to write out our thoughts or feelings - the essence of journaling - can help with clearing out our thoughts, which leads to better decision making. Personal writing can also help with coping, especially during stressful events like dealing with COVID-19. Writing can also help relieve anxiety and boost immune cell activity. Writing can help you control your thoughts. Getting thoughts from the inside of your mind to paper can help you tap into what lies beneath - what is important to you, what is really fueling the distress and potential ways you may want to move forward. Journaling Exercise - The 5 Minute Journal People have been journaling for centuries! What’s in a journal can vary dramatically from person-to-person. What you may find useful in a journal is personal and unique to you. The 16 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 44 of 63 hard part of learning if or how journaling may feel helpful is simply getting started if you haven’t journaled before. Perhaps the best way to try it out is to start small and just focus on your thoughts. Directions: e Put aside 5 minutes each morning and evening to journal your thoughts. e Start your journaling each morning and evening answering these two simple questions: o What am I feeling right now? © DolIknow why? e Write down any thoughts/feelings that come to your mind. (Just write them down without thinking about them or judging them - Write them down as they come to you.) e Keep writing for 5 minutes. If you want to stop, stop. If you want to keep writing and add other themes to your writing, feel free to do that. Your journaling is not replaying your history. It’s reflecting you. It’s you working through your problems. It’s you figuring things out and clearing your head. Write about the frustrating people you encountered today. Write about comments that bother you or a news headline that made you angry. You can write about the emotional wounds you still think about from your childhood or the person who didn’t treat you right as an adult. Write about terrible experiences that happened to you. You can journal about a parent who was just a little too busy, a little too critical or a little too tied up dealing with their own issues instead of being what we needed. The sources of anxiety or worry, the frustrations that routinely pop up at the worst times, the reasons you have trouble staying in relationships, whatever problem you are dealing with—take them to your journal! You’ll be shocked by how good you feel after writing out some of the thoughts locked in your mind. Leave Your Destructive Thoughts In Your Journal Spiritual Distress Our spiritual wellbeing is important to our physical and emotional wellbeing. When we’re feeling stressed, there’s a good chance that our spirit may be as negatively impacted as our body 17 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 45 of 63 and mind. This is true whether you meet your spiritual needs through religious participation or any other ways, such as being outside, meditating, etc. In these times, it’s common to experience spiritual exhaustion with the following feeling or thoughts: A weariness of the heart A sinking feeling that nothing really matters Questioning beliefs that were once unquestionable, like “Does God even exist?” Wondering about the meaning or purpose of your life Wondering about your own value in the world A sense of deep grieving Spirituality is often a sense of connection to a bigger picture. It’s often individually defined and gives meaning and purpose to a person's life. Think about your OWN spiritual center. What questions are you asking yourself that indicate that your spirit is feeling overwhelmed? © ° ~ : of ° One strategy: Filling Your Heart ga Why this may help: “Heart weariness” can leave us feeling empty, drained, or exhausted. When we feel it can seem like it’s hard to defend yourself. Feeling defenseless can make our negative self- thoughts seem truer than they really are. Sometimes, the only way to quiet those voices that bring us to darkness and despair is to intentionally sit down and think about those things which are meaningful to us, and have a “heart-warming” effect on how we feel. Instructions: On the next page, there’s a heart, waiting to be filled. Take some time, maybe close your eyes and start to think about those things that bring you joy in life. Here are some general ideas: e@ People you hope to see or talk to when lock-downs and other restrictions are lifted e@ People you love and feel committed to, even if your efforts have to be delayed due to incarceration or temporary emotional struggles in your relationships, etc. e Things you’ve done that your proud of e Your hopes and dreams for the future e Places you’ve been or activities that bring you peace 18 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 46 of 63 @ Some people like to imagine the ocean, the mountains or some other special trip you’d like to take; And remember...you deserve to feel OK!! Fill Your Heart 19 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 47 of 63 Self-Help Strategies There are many self-help strategies available to help people deal with the physical, emotional, intellectual and spiritual impacts of living through Covid-19. These are mostly for people with easy access to support networks that have the freedom to make choices about where they want to go and when. Most also have the resources to get books, movies and other distractions to help them cope with this time of uncertainty. Many people don’t have these luxuries right now and this section is for people who find themselves facing limits due to imprisonment, living in group homes, residential facilities or mental health institutions. These strategies will also be divided into the categories of: = Strategies to help with physical distress = Strategies to help with emotional distress = Strategies to help with intellectual distress = Strategies to help with spiritual distress STRATEGIES TO SUPPORT GREATER PHYSICAL WELLBEING Why breathing may help: Breathing is often a way to trigger our own internal “relaxation response.” The great thing about breathing is that we do it all the time and we can do it anywhere. The way we breathe, though, can either add to our sense of stress or diminish it by triggering our “fight or flight” response. When we feel stressed, we often “shallow breathe.” This can make you feel light-headed, dizzy or other physical discomforts. Deep breathing on the other hand can often center us and help us feel more grounded. For some people breathing exercises can actually cause greater anxiety, so always trust your own response. If you’re feeling more anxious after deep breathing, stop and try something else!! Post-traumatic stress can affect the way you breathe. Holding your breath, as well as breathing rapidly or shallowly can sometimes lead to increased anxiety. Awareness and controlling of the quality of our breathing can have several positive effects. Slowing and deepening how we breathe allows for an adequate intake of oxygen and output of carbon dioxide. Both are necessary for our physical well-being. Conscious breathing during times of distress can allow us 20 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 48 of 63 to release muscular and emotional tension, which reduces our level of distress. Focusing awareness on your breathing can shift your thoughts away from non-productive or negative thinking and bring us fully back into the present. On the next few pages, there are a variety of breathing exercises. Try some of them out and see if they’re helpful for you! A simple deep breathing exercise... Breathe in through your nose, counting silently 1, 2, 3, 4 as you slowly inhale. Breathe out through your mouth, counting silently 1, 2, 3, 4, 5, 6, 7, 8 as you slowly exhale. Repeat this kind of breathing and counting two more times. Note how this makes you feel: (You might want to try it a few times before deciding for sure if this is helpful or not. The first time or two can feel awkward because it’s something new. O But by the third time, you should have a pretty clear idea how you feel during or after deep breathing exercises.) Belly Breathing Normally, we breathe very shallowly, up in our chests. Learning to breathe down into our stomachs naturally helps calm us down. It also brings more oxygen into our body and brain, which helps us think more clearly. Belly breathing before a stressful situation can be very helpful. Here is what you do: First, breathe as you normally breathe... What parts of your body move as you breathe? What rises or moves? Notice what it feels like to breathe normally. => Now, sit and place your hand on your stomach. = With your mouth closed, breathe in for four seconds or until you feel your whole chest fill with air all the way down to your belly Hold in the air for four seconds. Slowly blow all the air out until it’s all gone. Try this three or four times and see if you feel a little more relaxed than you did before. Uy UY 21 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 49 of 63 Note how this makes you feel: O (You might want to try it a few times before deciding for sure if this is helpful oO or not. The first time or two can feel awkward because it’s something new. ° By the third time you should have a pretty clear idea how you feel during or after deep breathing exercises.) 90 SECOND STRESS BREAK 1st 30 SECONDS: Notice your breathing. See if you can inhale longer than you exhale. 2np 30 SECONDS: Keep breathing slowly. Notice any muscles in your body that are tense. On each exhale, see if you can relax the tense places. LAST 30 SECONDS: Keep breathing slowly. With each breath, say something positive to yourself, such as: “T got this.” “Keep going.” “I can do this.” When the 90 seconds are up, go about your day! Note how this makes you feel: (Again, you might want to try it a few times before deciding for sure if O breathing exercises are helpful or not. The first time or two can feel awkward O because it’s something new. But by the third time, you should have a pretty clear idea how you feel during or after deep breathing exercises.) HERE'S ANOTHER ONE TO TRY: 22 © Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 50 of 63 TAKE 5 Use your pointer finger to trace your other hand Breathe in through your nose % Breathe out through your mouth Breathe in through your nose as you trace up your finger; breathe out through your mouth as you trace down; o °o Note how this makes you feel: (Again, you might want to try it a few times before deciding for sure if this is helpful or not. The first time or two can feel awkward because it’s something new. But by the third time, you should have a pretty clear idea how you feel during or after deep breathing exercises.) STRATEGIES TO SUPPORT GREATER EMOTIONAL WELLBEING Why using your senses helps: Often, emotional distress comes from getting caught up in our “emotional brain.” When we’re caught in our emotional brain, we’re often disconnected from our thinking brain that helps us to understand our emotions or cope without emotions. Using our senses can help us tap back into our healthy brain to help us think clearly about the emotions that may be overwhelming us. Our five Senses This technique will take you through your five senses to help remind you of the present. This is a calming technique that can help you get through tough or stressful situations. 23 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 51 of 63 Take a deep breath to begin. LOOK: Look around for five things that you can see and say them to yourself in your mind. For example, you could say, “I see the chair. I see the cup. I see the picture frame....” — FEEL: *» Pay attention to your body and think of four things that you can feel and say them quietly in your mind. For example, you could say, “I feel my feet in my socks, my hands in my lap, the hair on the back of my neck, and the chair I am sitting on.” 9) LISTEN: é Listen for three sounds. It could be the sound of cars outside, the sound of a clock -/~ ticking, or the sound of your stomach rumbling. Say the three things to yourself in your mind. SMELL: Name two things you can smell. If you can’t smell anything, then just think of and imagine your two favorite smells. —-—— 41 TASTE: Say one thing you can taste. It may be the toothpaste from brushing your teeth or your tongue in your mouth. If you can’t taste anything, then think of your favorite things to taste. Mutual... Equal... Been There Too... You’re Not Alone! Lend a Hand, Prop Up, Encourage, Assist, Be a Source of Strength & Comfort Peer-to-peer support is all around us! It has been around since the dawn of time. As people, we are hardwired to CONNECT. It’s in our DNA.... In times of stress and distress, we tend to feel comforted most by those who can say, “Yes... ve been there, too. You’re not alone.” Likewise, if we’ve been through something ourselves, we often feel a special compassion for those 24 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 52 of 63 struggling with problems that we’ve also faced and may even have the urge to reach out a helping hand. Sharing your story can help individuals or groups of people. It’s good to share your personal story but make sure that the information you share is safe. Sometimes people take our personal information and use it against us. Unless you don’t mind others outside of your peer relationship knowing, only share your experiences if you know that the person you’ re trying to help will keep it confidential. Toni Sorenson is a well-known author who talks about ‘strength from struggles. She says that walking a mile in someone else's shoes isn't as much about the physical walk or the actual shoes. Ms. Sorenson describes it is the ability to think like the other person thinks, feel what they feel, and understand why they act a certain way or are in a certain situation. Every step is about “empathy” or having experienced how another person has lived and understanding their struggles. Here are a few examples empathy and understanding: A first-time mom gets support at church from another mom with several children. e A person hears that his co-worker lost his son in a car accident. He reaches out to the person because he also lost a child and wants to offer support. e Someone that just had a heart attack, receives support and “lessons” learned from another person that recovered from a heart attack a year earlier. e A widow turns to another man for support that lost his wife too. The amazing thing about people is that, even when we’re struggling, we reach out and care about others. As humans we can actually get pleasure from helping others. 25 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 53 of 63 “Connection is the energy that exists between people when they feel seen, heard and valued; when they can give and receive without judgment; and when they derive sustenance and strength from the relationship.” Brene Brown Did You Know? Peer support can be formal, such as Certified Peer Specialists who work in our mental health, substance use and judicial systems. The good thing is you don’t have to be a Certified Peer Specialists to provide peer support to another person. As a matter of fact, peer-to-peer relationships existed way before peer support became “formal” in professional settings with specialty trained Certified Peer Specialists. What we know is that reaching out to others makes US feel better and can help US cope better with our own stress. In peer support we understand each other because although everyone has their own unique stories, we have similar experiences that can create a bond that allows us to learn together, figure out how to change the way we do things and the way we think, and figure out how to move forward in our lives. 26 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 54 of 63 EXPERTS BY EXPERIENCE: THE POWER OF SHARED EXPERIENCE Peer >upport: Experts by Experience In many professional settings, people are called “experts” due to their educational background, or years working in a profession. In peer support, we are sometimes referred to as “Experts by Experience” because our knowledge and wisdom comes from surviving difficult situations. Consider experiences you may have had such as incarceration, hospitalization, gang involvement, substance use, homelessness, and suicide attempts. Imagine what it would be like to receive support from someone else that has similar experiences. You may already know some of these people where you currently are living... Perhaps YOU are that person that reaches out when new people come around. These are examples of peer support and have proven to be an incredibly effective way to support, connect and heal together! The irony is that it’s sometimes you that feels better when you support others! “Peer Support is different from the support you get from counselors, doctors and case managers. It is more than just being friends. In Peer Support you understand each other because although everyone has their own unique stories, you have similar experiences that can create a bond that allows you to learn together, figure out how to change the way you do things and the way you think, and to figure out how to move forward in your lives. By sharing your experiences and building trust in each other, you learn to go forward in new ways that move you away from seeing yourself as “mentally ill” and the limitations of such a view. In Peer Support, you can safely try out new ideas and new ways of being through “learning” 9 99 rather than a “treatment”. Mary Ellen Copeland 27 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 55 of 63 WHAT IS PEER SUPPORT? Broadly defined, “peer support” refers to a process through which people who share common experiences or face similar challenges come together as equals to give and receive help based on the knowledge that comes through shared experiences (Riessman, 1989). A “peer” is an equal or someone with whom we share social and lifestyle similarities. “Support” expresses the kind of deeply felt empathy, encouragement, and assistance that people with shared experiences can offer one another within a reciprocal relationship. Broken down to its simplest description, peer support is using your own personal experiences to provide support, guidance, and mentoring to those who are experiencing difficulties similar to your own. Receiving and offering support can increase our awareness and give us the strength and courage to get through difficult circumstances like COVID-19. However, to offer support, we have to understand how each person’s definition of support varies. Let’s start with your experience: In your personal experiences, how would you have defined support? What types of relationships have been supportive in your life or recovery? What made them supportive? What types of relationships were unsupportive? Why? How could you find out what support means or “looks like” to your roommate, cell mate or someone that is around you right now? What could you do to provide support to your cellmate or someone else? How would you bring up the discussion in this kind of situation. Peer to Peer Relationships: The Foundation Healing and Recovery 28 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 56 of 63 We are survivors! People that have been through some of life’s most difficult situations know all about healing and recovery. We are living examples of both and so in our peer relationships, we believe and share that healing and recovery is possible for everyone. We support the health and wellness of others in all of our relationships. Mutuality We believe in mutual, equal and shared power. We do not attempt to have power over others. In peer-to-peer relationships, we are equal and do not attempt to advise or have authority over the other person in the relationship. Instead, we recognize that mutual relationships can be healing to both individuals. Sharing this quality in a relationship can make the other person feel safe to share, which makes it easier help them. Hope We inspire hope, courage and/or confidence in others. Hope is a vital component of wellness. Without hope, why would anyone try to improve his/her situation or live his/her life? Hopelessness keeps people in a dark place with no plans or energy to move forward. In peer relationships, we serve as a living example of hope. Our lived experience and resilience demonstrate to others the hope of recovery or living a better life! Empowerment We seek to bring out the power within the other person by encouraging him/her to develop solutions to their own challenges and have the confidence in themselves to make decisions. We do that by supporting people to “find” and “use” their voice, to discover who they are and who they want to be, and by exploring all of their options, without judgement, shame, blame or guilt. 29 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 57 of 63 PEER SUPPORT: WHAT WE DON’T DO 1. We do not label a person or diagnose them! It is important to remember that, although we may share similar experiences with others, the treatment, approaches, medications, diagnosis, etc. that we experienced may not work for another person. Every person is unique and there is a lot that goes into clinical treatment. Therefore, if a person is receiving treatment, our role is to support them and to be educated about their treatment options. By doing this we can help them make informed decisions and be prepared to discuss any concerns they may have with their doctor or treatment provider. 2. Weare not their parent! There is a difference between offering peer support and telling people what to do, or imposing rules or consequences on their personal choices. Remember, we are equal partners in the relationship and as such, we share with and learn from one another. 3. We NEVER offer advice! There is a difference between offering support, sharing experience and giving advice. People seldom take advice. This is especially so when they don’t have the same resources we have. Our role is to support people to find their own solutions, not have the answers to all of their personal challenges. There is a skill to offering support without giving advice and it’s one that can be practiced and learned over time. Voice & ELF VATE _— THE DIFFERENCE BETWEEN SUPPORT AND ADVICE? . POWER Peer Supporters, know your role 30 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 58 of 63 PEER SUPPORT: WHAT IS OUR ROLE? We serve as a resource: We offer our experience and “lessons learned” to be a resource to others We offer support: We offer support by being present, providing encouragement, giving assistance, comfort and listening without advising and without judgement. We serve as a coach: Take a moment to reflect on the meaning that “coach” has for you; what do coaches do and what are the qualities of an effective coach? A peer relationship serves a similar role by using their experience, skills and information to guide people through difficult situations and celebrate successes. We are partners together: We seek to truly understand others where they are, and offer the type of support they are requesting without judgment, labels, assumptions or biases. In a partnership, we both contribute to the relationship without asserting control over the other. Partners are “in this together” and our partnership can enhance the partner’s wellness as well as yours. A partner doesn’t walk in front of you and pull, nor do they walk behind you and push. Instead, they walk side-by-side, shoulder-to-shoulder, participating, engaging, and discussing together. Peer Voice oe MOBILIZING TO ELEVATE RECOVERY [ts-Peer Ducpport, NOT Peer Pressure know your role 31 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 59 of 63 PEER SUPPORT: WHAT WE DO! We accept the person where they are! This means it's important to understand that who the person is at the moment is not who the person may be in the future. Offering help or assistance to someone and judging them by one moment in their life will often make them NOT want to come to you for help. We are friends who remember that we were once where they were and may be again! Friends understand that we sometimes make mistakes in life but with help we apologize and correct our mistakes to be better for ourselves and other people in our lives. Mistakes are how we learn to be better people because we learn from our mistakes. We use non-judgmental listening! Non-judgmental listening is about trying to really understand the other person. As the listener, we should put our own views aside and try not to get distracted by our personal thoughts and feelings. What is NON-JUDGMENTAL LISTENING? We should show an attitude of acceptance and genuine empathy: When we genuinely care about a person, we are more interested all of them. If we love a person when they’re doing well, then certainly we can love a person when they make mistakes! Talking about problems is good but it feels great to know someone cares enough to genuinely listen. We use our body language and verbal skills to show that we're listening to hear with genuine interest; not to defend or judge: If you’re only listening to defend yourself or half-way paying attention, this can be hurtful. Even if the person doesn’t say anything, over time you will find that the person no longer wants you to help them. Can you remember a time when you needed help and people didn’t listen or were distracted while you were talking to them? If they were playing on their cell phone or paying attention to other people, did you feel like they care? We maintain a positive body language. Even when the person says something that’s shocking or could be interpreted as hurtful: 32 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 60 of 63 This means that we turn off electronics or go to an area where the TV is not so loud. Turn your body towards the person and ask questions if you don’t understand. Be sure your tone of voice and facial expressions are showing positive support. We recognize cultural differences and help based on who the person is, not who we want them to be: Sometimes it helps when people know that you’re not judging them or where they were raised. Problems don’t care about culture or ethnicity and when we’re genuinely listening to help, neither should we. It’s okay to have conflict! Conflict can feel hurtful but the truth is that conflict is sometimes necessary. Conflict can tell us where things aren’t working well. This can be in a relationship or within ourselves. It may help to think of conflict as a cut on our skin. We know where to clean it and even if it’s uncomfortable while it’s healing, we know that our injury will heal. Conflict is the same except it’s an emotional hurt instead of a physical hurt. Cleaning emotional hurts can be done by using some of the tips in this manual. You can talk to someone. You can journal or you can share your story with someone else. As long as you don’t keep it to yourself, conflict can’t hurt you. 33 Case 1:20-cv-00849-CKK Document 138-1 Filed 12/12/20 Page 61 of 63 Ex C 12/8/2020 Case 1:20-cv-00849-CK Kborhagcunti@rind Gpckinghilee hakt an2Qovdsage 62 of 63 = aie Ul sais ay mur qLeaL i pes When putting on gloves, wash your hands, pull gloves on, placing over the cuffs of your shirt or medical gown if applicable. The CDC recommends removing gloves if they become torn, damaged, or soiled. Perform hand hygiene before putting on new gloves. To remove gloves Pinch sind fink the carters oof thes Pall agile irda aor nt Baad diner gory Fro the pareve Foam ihe haired bok ogltear reds Thr ele see untae Ub gloat erokdeocl 2 Chet erected gghtere-wvl hs the ee gioanel and With your un-qioeed hand, wide your ae ithe. plow ee fgets: unekr rates the enenhe Fre nme vy on rena alors Dower vend the belated I ‘pina plead mt rit, Gurney ther qiereinnice out citer at ae sa Uh ah nut To remove a mask, untie the bottom then the top ties, or if the mask has elastic bands, remove the mask by grasping the elastic loops (not the cloth or paper of the mask), remove from face, and discard. Avoid touching the front of the mask as you discard. Wash your hands when you’ re done! co i wy OF Be ” =k —— = f =—F '_ I = an bi a https://apdscorporate. brightspace.com/d2I/le/enhancedSequence Viewer/6 794 ?url=https %3A%2F%2F fl e9e321-893d-4fec-96b1 -7e4cd4496ee1.seque 1/2 12/8/2020 Case 1:20-cv-00849-CK Kborhaycuntierind Gckinghilee hakt ane Govdsage 63 of 63 Disposal of used PPE | Once you have properly doffed your PPE, proper disposal of all used PPE is © very important. At identified locations within the CDF and CTF, waste cans will be placed to receive used PPE items. https://apdscorporate. brightspace.com/d2I/le/enhancedSequence Viewer/6 794 ?url=https %3A%2F%2F fl e9e321-893d-4fec-96b1 -7e4cd4496ee1.seque... 2/2 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 1 of 232 Ex A Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 2 of 232 1. Contract Number Page of Pages AMENDMENT OF SOLICITATION / MODIFICATION OF CONTRACT CW82753 1 | 1 2. Amendment/Modification Number 3. Effective Date 4. Requisition/Purchase Request No. 5. Solicitation Caption MOo1 August 18, 2020 Environmental Conditions Inspection 6. Issued by: Code | 7. Administered by (If other than line 6) Office of Contracting and Procurement Department of Corrections Public Works Cluster 2000 14* Street NW 2000 14" Street, NW, 6" Floor 7 Floor Washington, DC 20009 Washington, DC 20024 8. Name and Address of Contractor (No. street, city, 9A. Amendment of Solicitation No. county, state and zip code) 9B. Dated (See Item 11) Potomac-Hudson Engineering, Inc 77 Upper Rock, Suite 302 10A. Modification of Contract/Order No. Rockville, MD 20850 X | CW82753 10B. Dated (See Item 13) Code Facility May 18, 2020 11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS [_ |the above numbered solicitation is amended as set forth in item 14. The hour and date specified for receipt of Offers oO is extended. CO is not extended. Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods: (a) By completing Items 8 and 15, and returning copies of the amendment: (b) By acknowledging receipt of this amendment on each copy of the offer submitted; or (c) BY separate letter or fax which includes a reference to the solicitation and amendment number. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such may be made by letter or fax, provided each letter or telegram makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified. 12. Accounting and Appropriation Data (If Required) 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACT/ORDERS , IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14 A. This change order is issued pursuant to (Specify Authority): 27 DCMR, Chapter 36, Contract Modifications The changes Set forth in Item 14 are made in the contract/order no. in item 10A. B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation data etc.) set forth in item 14, pursuant to the authority of 27 DCMR, Chapter 36, Section 3601.2. C. This supplemental agreement is entered into pursuant to authority of: x D. Other (Specify type of modification and authority) E. IMPORTANT: Contractor x] is not LJ is required to sign this document and return __ copies to the issuing office. 14. Description of Amendment/Modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.) Task Order No.: CW82753 is hereby modified as follows: A. The Government of the District of Columbia hereby exercises the option period through October 31, 2020. The extension is at no additional cost to the District. Except as provided herein, all terms and conditions of the document is referenced in Item 9A or 10A remain unchanged and in full force and effect. 16A. Name of Contracting Officer Courtney B. Lattimore 16B. District of Columbia 16C. Date Signed 8/17/2020 a cting Officer) Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 3 of 232 Ex B Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 4 of 232 SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS PROJECT LOCATION: DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS CLEANING CONTRACTORS: SPECTRUM MANAGEMENT, LLC and ROCK SOLID DISTRICT GROUP, LLC 1.0 Introduction In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS- CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. The purpose of this Protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. Cleaning crews should clean and disinfect all identified areas, focusing especially on frequently touched surfaces. The procedures described in this Protocol shall be executed by the current contractors, Spectrum Management, LLC (Spectrum), and Rock Solid District Group, LLC (Rock Solid), with oversight by Potomac-Hudson Engineering, Inc. (PHE). 2.0 Implementation 2.1 Overview The procedures described in the Protocol comply with or exceed the United States Centers for Disease Control and Prevention’s (CDC’s) recommended practices in response to the COVID-19 pandemic. It is important to note that the cleaning and disinfection procedures described herein cannot remove ALL viral particles from surfaces; however, following these procedures will substantially decrease the number on surfaces and thereby reduce the risk of infection and spreading. 2.2 Employee Screening As part of existing entry procedures, all Spectrum and Rock Solid employees shall undergo a temperature check prior to each day’s work for signs of possible COVID-19 infection before being allowed to enter the facility. This is currently being conducted for all DOC employees, visitors, contractors, and any other visitors to the facility. Persons who screen positive, defined as having a temperature of 100.4 degrees Fahrenheit or greater will return to their vehicle. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 5 of 232 2.3 General Procedures i. The Spectrum and Rock Solid crew leaders shall meet at the beginning of each work day with the DOC point of contact for the facility(ies) to be cleaned to discuss the areas to be cleaned on that day and to coordinate the movement of cleaning crew staff through the facility. ii. Whenever possible, personnel shall attempt to wait at least 24 hours to enter an area or room previously occupied by an individual known to be infected with SARS-CoV-2. The National Institute of Health (NIH) has determined that the virus can remain active in the air for up to 3 hours and for up to 2 to 3 days on surfaces; however, some organizations have cautioned that the virus can remain active on surfaces for even longer periods of time. iii. If surfaces are visibly dirty, they shall be cleaned using a detergent or soap and water prior to disinfection. If a surface or object has been soiled with blood or other bodily fluids, initially treat the area with a 10 percent bleach solution; then proceed to disinfecting the area for COVID-19. iv. The product to be used for COVID-19 disinfecting is Ecolab Peroxide Multi Surface Cleaner and Disinfectant. (A copy of the Safety Data Sheet [SDS] for this product is included in Attachment A). The product, as purchased, contains 8 percent hydrogen peroxide and has a pH of 0.5 — 1.5 (extremely corrosive) and will be provided by the DOC. Use of the product may generate irritating vapors and is corrosive to the eyes and skin. Avoid using in small spaces with limited air exchange. Avoid touching any areas of your face while cleaning to prevent contact with the disinfecting compound and potential virus. Vv. An alternate product, Xpress Detergent Disinfectant, may also be used. This product will typically be used by Spectrum personnel in the fogging machine. An SDS for this product is also included int Attachment A. vi. Spectrum and Rock Solid shall use the designated product in accordance with the manufacturer’s instructions (mixed at 6 ounces per gallon), to include ensuring the required 45- second contact time of the wet disinfectant is met. The PHE industrial hygienist(s) shall conduct random observations/inspections of disinfectant use to verify that the product is used properly, and the designated contact time is met. vii. When mixing disinfectant, personnel shall wear eye and face protection, to include goggles, face shields, or equivalent PPE. Likewise, similar protection shall be used during fogging activities. viii. In order to ensure that the correct contact time is met, contractor personnel will apply rag/cloth soaked with the Ecolab Peroxide Multi Surface Cleaner and Disinfectant dilute mixture and liberally wipe the cloth on all applicable surfaces to ensure complete coverage. The entire surface shall be kept visibly wet for at least 45 seconds. Once the contact time has been achieved, the surface may be wiped down with a dry rag or allowed to air dry, depending on the location and amount of traffic in a given area 2.4 Disinfecting Procedures i. Cleaning/disinfecting shall focus on all high-touch surfaces and areas, to include but not be limited to: desks, computer mouses and keyboards, phones, lockers, cubbies, window sills and counter tops, doors, frames, doorknobs and push bars, elevator buttons, light switches, handrails, bathroom floors, faucet handles, toilet handles, toilet stall door locks, towel 2 vi. vil. viii. Xi. xii. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 6 of 232 dispensers and hand driers, showers, kitchen areas, cafeterias, office common areas, nursing stations, and other rooms. An alcohol solution shall be used for all electronics. These services shall be carried out in accordance with the CDC’s Coronavirus Disease 2019 (COVID-19) Environmental Cleaning and Disinfection Recommendations without restriction. Ventilate the rooms/spaces prior to and during cleaning/disinfecting. If ventilation through open windows is not possible, use a high-volume, high efficiency particulate air (HEPA) filter system to remove airborne particles from the air during cleaning. Temporarily increase the cleaning area’s humidity to approximately 50 percent relative humidity (RH), if possible. Prior to disinfecting, Spectrum and Rock Solid shall perform general cleaning, removing dirt and debris using the Ecolab Orange Force Multi Surface Cleaner and Degreaser, to include floor mopping. Clean all dust from horizontal surfaces with a towel dampened with the cleaner/degreaser to minimize re-aerosolization of settled contaminated dust and particles. Use a slow, smooth wiping action and change out or wet clean the towel on a regular basis to minimize re-aerosolization of collected dust and particulates. Dry sweeping with a typical straw or push-broom is not permitted. Instead, use of an electrostatic broom or brush (e.g., Swiffer Sweeper or equivalent) is permitted to remove dust and dirt particles prior to wet mopping. When mopping, ensure the floor surfaces that are disinfected stay wet for at least 45 seconds. Frequently re-wet the mop head to ensure a thorough soaking of the floor. Consider changing mop water at least once per day, and ensure designated mops are used for bathrooms and that these mops are not used elsewhere. Ensure that all stairwells in the housing units are mopped as well. Pay special attention to window ledges and other commonly dusty surfaces. Also pay special attention to frequently touched surfaces, such as railings, ledges, and countertops. Ensure that glass surfaces (e.g., windows, mirrors) are also disinfected. Disinfect ALL vertical surfaces to a height of at least 6 feet above the floor, including but not limited to walls, windows, columns, doors, rails, etc. As part of this protocol, it is strongly recommended that the contractor clean and disinfect heating, ventilation, and air conditioning (HVAC) supply and exhaust grills/diffusers, including removal of caked-on debris, dust, grease, etc. This will likely require the use of a ladder as these features are typically located at ceiling level. Disinfect floors by mopping with Ecolab Peroxide Multi Surface Cleaner and Disinfectant (this is the second round of mopping). Avoid aerosolizing the dirty cleaning liquid by using steady and sweeping mop swipes and careful, deliberate mop head squeezes. Restrooms shall receive special attention due to the tendency of the SARS-CoV-2 virus to bioaccumulate within feces, vomit, sputum, and urine. Clean any surfaces that have visible blood, stool, or body fluids. Trash liners shall be removed, and the trash receptacles disinfected. After air drying of the trash receptacles, a new liner shall be inserted in each receptacle. Following disinfecting, the DOC representative shall identify areas for fogging. Fogging shall be accomplished using ultra-low-volume foggers (a sprayer shall not be used as a substitute for a fogger) to ensure that all surfaces are adequately saturated. In general, fogging of walls shall be 3 xiii. Xiv. XV. 2.5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 7 of 232 applied to a height of 6 feet. When fogging, employees shall wear a full-face respirator equipped with organic vapor and acid gas cartridges. Access to the areas in which fogging is conducted shall be limited until the fogging aerosols have settled. For soft (porous) surfaces such as carpeted floors, rugs, and drapes, remove visible contamination if present, and clean with appropriate cleaners indicated for use on these surfaces. If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely. Otherwise, use products with the U.S. Environmental Protection Agency (USEPA)- approved emerging viral pathogens claims that are suitable for porous surfaces. Vacuum carpeting and other fabrics with vacuums equipped with HEPA filtration systems. Take appropriate precautions when changing the vacuum HEPA or pre-filter to minimize exposures to airborne dusts. Although the procedures described herein are designed for Spectrum and Rock Solid, ensure that any other entity performing disinfectant cleaning at the facilities (e.g., Summit in the dining rooms or the inmate cleaning detail) are following these procedures as well or are following equivalent procedures. Employee Safety Spectrum and Rock Solid employees shall complete the appropriate training, to include COVID- 19 awareness, hazard communication (with specific attention on the hazards of the cleaners and disinfectants to be used), and bloodborne pathogens exposure control. Protection from potential viral infection from skin contact and aerosol inhalation is required through the use of PPE and hand washing. The minimal level of PPE for workers performing the decontamination and disinfection includes a face mask and nitrile gloves. Additional PPE shall be permitted as desired, to include half-mask or full-face negative pressure respirators with dual P-100 organic vapor and acid gas cartridges and full-body Tyvek coveralls (with shoe coverings). Gloves may be sealed to the coveralls with duct tape for additional protection, and replaced immediately if punctured or torn. Crew members shall inspect each other to verify that the PPE is donned correctly prior to beginning work. Cleaning employees shall be reminded to avoid touching any unprotected parts of the face. Employees shall wear goggles while transferring and/or diluting the Ecolab Peroxide Multi Surface Cleaner and Disinfectant, and while emptying buckets. Employees shall be medically approved, trained, and properly fit-tested to wear the respective respirators. If any breaches should occur in the PPE or if contact with unprotected skin occurs, the following steps must be followed: a. immediately stop work; b. remove the damaged PPE; c. wash the skin with soap and warm water (if soap and water are not available, use an alcohol-based hand sanitizer that contains 60 to-95 percent alcohol); and d. report the breach to the crew leader. Extension cords for portable electrical equipment will be protected by ground fault circuit interrupters (GFCl). Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 8 of 232 Vv. Slip hazards are a potential concern due to the wet application (mopping of floors). Non-slip shoes shall be worn. 3.0 Quality Control and Oversight The PHE industrial hygienist (or designated DC DOC employee) shall conduct random observations/inspections of wiped/mopped/fogged areas and document that the required contact time for the disinfectant (45 seconds) was achieved. The form in Attachment B may be used for this purpose, if desired. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 9 of 232 ATTACHMENT A — SAFETY DATA SHEETS (SDSs) Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 10 of 232 ATTACHMENT B — INDUSTRIAL HYGIENIST OBSERVATION LOG Industrial Hygienist Date Facility Surface Cleaning Observation Location Adequate | Deficient Disinfectant Contact Time Observation Location Time Minutes lied Until D Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 11 of 232 Ex C Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 12 of 232 ONSITE AUDIT INSPECTION REPORT ENVIRONMENTAL CONDITIONS INSPECTION FOR SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS (DC DOC), CENTRAL DETENTION FACILITY (CDF) AND CORRECTIONAL TREATMENT FACILITY (CTF) JULY 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14* Street NW, 7* Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302, Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 13 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of this protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020, and the procedures described in the protocol were subsequently implemented later that week. AUDIT OVERVIEW SCOPE PHE was tasked with inspecting the cleaning procedures used by two independent contractors at two DC DOC facilities after implementation of the procedures described in the Draft Protocol. PHE performed these inspections on June 29 and July 1, 2020. This report documents observed deviations, omissions, inconsistencies, and deficiencies, along with corrective action recommendations. CENTRAL DETENTION FACILITY On June 29, 2020, PHE inspected implementation of the cleaning procedures of Rock Solid District Group, LLC at the DC DOC’s Central Detention Facility (CDF). An In-Brief Meeting was held prior to the inspection and was attended by: e Ms. Gitana Stewart-Ponder (DOC) e Ms. Gloria Robertson (DOC) e §=6Sgt. D. Worthan (DOC) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) At the conclusion of the inspection, an Out-Brief Meeting was held. This meeting was attended by: e Mr. Lennard Johnson, Warden (DOC) e Ms. Kathy Landerkin Deputy Warden (DOC) e =©6Ms. Rena Myles (DOC) e Ms. Gloria Roberts (DOC) e =6Ms. Gitana Stewart-Ponder (DOC) (via telephone) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) Potomac-Hudson Engineering, Inc. ak Page 2 a Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 14 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report CORRECTIONAL TREATMENT FACILITY On July 1, 2020, PHE inspected the cleaning procedures of Spectrum Management, LLC at the DC DOC’s Correctional Treatment Facility (CTF). An Out-Brief Meeting was held at the conclusion of the inspection and was attended by: e Ms. Gloria Robertson (DOC) e §6Ms. Jackie Smith (DOC) e =6Ms. Florinda Eaglin (DOC) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) DRAFT SUMMARY OF FINDINGS Table 1 summarizes findings observed during the June 29 and July 1, 2020 onsite inspections. The table also provides recommended actions to correct the findings. Following the table is a brief Action Plan with recommendations for implementing the corrective actions identified in Table 1. Potomac-Hudson Engineering, Inc. ak Page 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 15 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. The contractor did not consistently allow for adequate wetting of the floor during mopping. On several occasions it was observed that a wet mop was used for an overly extensive period of time before being re-wetted. This resulted in portions of the floor being inadequately damped with a sufficient amount of disinfectant to ensure a 45 second contact time. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or are allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Ensure that mops are frequently wetted in the slop bucket during floor mopping. Consider requiring the contractor to provide additional mop buckets and dollies so that each person mopping has access to their own dolly that can be toted along with them as they mop. Based on site observations, there was an insufficient number of mop dollies. This required the dollies to remain in a centralized position and discouraged floor cleaners from more frequently wetting their mop heads. Additionally, the mop buckets themselves, which have their own sets of wheels on them, should be removed from the dollies and transported with those mopping the floors. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. Potomac-Hudson Engineering, Inc Page 4 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 16 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION Currently, the cleaning contractor is only responsible for disinfecting the floor and doorknobs/door handles in the basement. Although DOC staff are responsible for the remaining areas, it is unclear if they know all the surfaces they need to clean and/or if they are aware of the proper contact time for the disinfectant. The contractor was observed cleaning windows, mirrors, and other glass surfaces with an ammonium-based window cleaner (Ecolab Oasis 255SF Industrial Window Cleaner) as opposed to an EPA-registered product approved for COVID-19. In some cases, contractor personnel was observed cleaning doorknobs, door handles, and other frequently-touched surfaces with a hand sanitizer. While this is technically sufficient for disinfection, it is not be applied consistently in all areas and the proper contact time may or may not be properly implemented. The contractor (Summit) that currently provides food service duties in the cafeteria is solely responsible for cleaning and disinfecting that area of the facility. It is not known if they are aware of or are following the proper protocols for disinfection in a manner consistent with the other areas of the facility. CONDITIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. Although this contractor (Spectrum) generally applied greater volumes of the disinfectant with the sprayers in a given area as compared to Rock Solid, it was still observed to be insufficient. Ensure that staff cleaning personnel are familiar with and are properly implementing the cleaning protocols currently being provided to the third- party contractors. Test the hydrogen peroxide-based disinfectant on glass surfaces. If acceptable, consider using the disinfectant on these surfaces instead of, or in addition to, traditional window cleaning chemicals. Ensure that all chemicals and cleaning procedures are consistently applied throughout the facility. If hand sanitizer is to be used on a regular basis for these surfaces, they should be documented in the cleaning protocol. Ensure that Summit is performing proper disinfection in a manner that is consistent with or exceeds the procedures being used elsewhere at the facility. Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or be allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Potomac-Hudson Engineering, Inc Page 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 17 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. The contractor was not always performing its duties in a consistent manner. The following observations were made: e Some of the grated stairwells in the housing areas were mopped, while others were not. e =|n one area, contractor personnel were using hand sanitizer to disinfect doorknobs, door handles, and phones. However, in other areas, the peroxide disinfectant was used. e Inthe 96 Medical Area, the contractor did not clean the area between the gates and the elevators. However, this area was cleaned in the 82 Medical Area. The contractor was observed mixing and handling both the concentrated form of the peroxide disinfectant as well as the diluted form. In its concentrated form, the disinfectant has a pH of less than 2 and is extremely corrosive. Even in its diluted form, the disinfectant is still corrosive and presents danger to users. Contractor personnel were not wearing certain personal protective equipment (PPE) while performing these tasks. The contractor was also observed using the fogging unit without eye protection. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure that the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. The following recommendations are made: e Ensure that all stairwells in the housing units are mopped. e = Since different disinfectants require different contact times (depending on the active ingredients), ensure that the contractor is consistent in what they use. The contact time for ethanol (5 minutes) is much greater than that for peroxide (45 seconds). e Ensure that the contractor is clear on what areas are considered within their scope of work and which areas are not and ensure that they clean and disinfect all of the areas for which they are responsible. It is recommended that the personnel handling and mixing the disinfectant in the mixing room wear goggles and/or face shield to protect their eyes and face. Consider also requiring longer gloves that cover exposed skin between hands and sleeves. Consider requiring the contractor to where eye protection during fogging. Potomac-Hudson Engineering, Inc Page 6 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 18 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) The following POSITIVE observations were made with respect to Spectrum Consider instructing Rock Solid personnel to follow some of these procedures during the site inspection: as well. e Personnel changed out mop water and/or mop heads at certain times throughout the day. e The peroxide disinfectant was used on windows, mirrors, and other glass surfaces in lieu of a typical glass cleaner. e = The walls in the bathrooms were scrubbed with a hard-bristled mop. Potomac-Hudson Engineering, Inc ah ad Page 7 PH Ee Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 19 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report CORRECTIVE ACTION PLAN PHE has developed a brief corrective action plan (CAP) as part of this document. A CAP is a step-by-step plan of action that is developed to achieve targeted outcomes for resolution of identified errors in an effort to: e = Identify the most cost-effective actions that can be implemented to correct error causes e Develop and implement a plan of action to improve processes or methods so that outcomes are more effective and efficient e Achieve measurable improvement in the highest priority areas e = Eliminate repeated deficient practices UPDATED PROTOCOL As the first step in this CAP, PHE has prepared an updated COVID-19 Disinfection and Cleaning Protocol to help guide the cleaning contractors (see Appendix A). The protocol has been improved to focus on and address observed contractor deficiencies. The update also revises some of the procedural language to more closely reflect site conditions, based on observations made during the site visit and conversations with both contractor and DOC personnel. Specific items added to the protocol to correct deficiencies include: e Added emphasis on thoroughly wetting the floors during mopping. The updates include requiring the contractors to remove mop buckets from the carts and/or providing additional carts with mop buckets to be available. e Removing spray bottle application of the disinfectant as an option and requiring that wet cloths be used to more thoroughly wet each surface and ensure full contact time is met across the entire surface. e Indicating that dry-sweeping is only permissible if an electrostatic broom or brush is used to collect dust and dirt with minimal aerosolization. e Re-emphasizing that ALL vertical surfaces must be disinfected, with specific examples. e = Adding additional PPE requirements when working in the mixing room. DISCUSSIONS WITH CONTRACTORS The findings made by PHE should be discussed directly with supervisors for each cleaning contractor, including potentially sharing this document with them. Each of the deficiencies should be identified, and the recommendations for correction should be explored. It is possible that the contractors may identify and suggest other corrective measures as alternatives to those suggested in this document. As long as the same goal is reached, any alternative or additional procedures can be implemented as well. When providing the updated protocol, DOC should specifically point out those items which have changed from the draft protocol and ensure that the contractors understand all of their responsibilities and expectations. PERIODIC RE-INSPECTIONS As part of the existing scope of work, PHE is scheduled to conduct up two (2) follow up monthly site inspections to ensure that the contractors are adhering to the recommended protocols and that noted deficiencies have been corrected. As part of these follow-up inspections, PHE will hold a short, informal out-brief at the end of each day to discuss any findings or other observations made, and present options for correction. Potomac-Hudson Engineering, Inc ah Page 8 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 20 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report PHE also recommends that DOC personnel perform additional inspections, as needed, based on the results of the PHE follow-up inspections, if deficiencies continue to be identified. EFFECTIVENESS EVALUATION The DOC will continue to check the temperature of personnel arriving onsite and require face masks for the foreseeable future. The DOC will also continue to perform voluntary testing of individuals onsite (both employees and inmates) every two weeks. As the year continues on, it is likely that additional waves or peaks may be observed throughout the region. DOC should closely monitor the number of persons onsite testing positive during these times to evaluate the effectiveness of all current procedures, including cleaning and disinfection. Changes should be made, as applicable and appropriate, to ensure that each facility is doing as much as possible to protect all personnel from the virus. Potomac-Hudson Engineering, Inc ah 4 Page 9 @ Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 21 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report This page intentionally blank. Potomac-Hudson Engineering, Inc ah Page 10 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 22 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report APPENDIX A SARS-CoV-2 (COVID-19) DisINFECTION AND CLEANING PROTOCOLS Potomac-Hudson Engineering, Inc. ah Appendix A WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 23 of 232 SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS PROJECT LOCATION: DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS CLEANING CONTRACTORS: SPECTRUM MANAGEMENT, LLC and ROCK SOLID DISTRICT GROUP, LLC 1.0 Introduction In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS- CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. The purpose of this Protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. Cleaning crews should clean and disinfect all identified areas, focusing especially on frequently touched surfaces. The procedures described in this Protocol shall be executed by the current contractors, Spectrum Management, LLC (Spectrum), and Rock Solid District Group, LLC (Rock Solid), with oversight by Potomac-Hudson Engineering, Inc. (PHE). 2.0 Implementation 2.1 Overview The procedures described in the Protocol comply with or exceed the United States Centers for Disease Control and Prevention’s (CDC’s) recommended practices in response to the COVID-19 pandemic. It is important to note that the cleaning and disinfection procedures described herein cannot remove ALL viral particles from surfaces; however, following these procedures will substantially decrease the number on surfaces and thereby reduce the risk of infection and spreading. 2.2 Employee Screening As part of existing entry procedures, all Spectrum and Rock Solid employees shall undergo a temperature check prior to each day’s work for signs of possible COVID-19 infection before being allowed to enter the facility. This is currently being conducted for all DOC employees, visitors, contractors, and any other visitors to the facility. Persons who screen positive, defined as having a temperature of 100.4 degrees Fahrenheit or greater will return to their vehicle. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 24 of 232 2.3 General Procedures i. The Spectrum and Rock Solid crew leaders shall meet at the beginning of each work day with the DOC point of contact for the facility(ies) to be cleaned to discuss the areas to be cleaned on that day and to coordinate the movement of cleaning crew staff through the facility. ii. Whenever possible, personnel shall attempt to wait at least 24 hours to enter an area or room previously occupied by an individual known to be infected with SARS-CoV-2. The National Institute of Health (NIH) has determined that the virus can remain active in the air for up to 3 hours and for up to 2 to 3 days on surfaces; however, some organizations have cautioned that the virus can remain active on surfaces for even longer periods of time. iii. If surfaces are visibly dirty, they shall be cleaned using a detergent or soap and water prior to disinfection. If a surface or object has been soiled with blood or other bodily fluids, initially treat the area with a 10 percent bleach solution; then proceed to disinfecting the area for COVID-19. iv. The product to be used for COVID-19 disinfecting is Ecolab Peroxide Multi Surface Cleaner and Disinfectant. (A copy of the Safety Data Sheet [SDS] for this product is included in Attachment A). The product, as purchased, contains 8 percent hydrogen peroxide and has a pH of 0.5 — 1.5 (extremely corrosive) and will be provided by the DOC. Use of the product may generate irritating vapors and is corrosive to the eyes and skin. Avoid using in small spaces with limited air exchange. Avoid touching any areas of your face while cleaning to prevent contact with the disinfecting compound and potential virus. Vv. An alternate product, Xpress Detergent Disinfectant, may also be used. This product will typically be used by Spectrum personnel in the fogging machine. An SDS for this product is also included int Attachment A. vi. Spectrum and Rock Solid shall use the designated product in accordance with the manufacturer’s instructions (mixed at 6 ounces per gallon), to include ensuring the required 45- second contact time of the wet disinfectant is met. The PHE industrial hygienist(s) shall conduct random observations/inspections of disinfectant use to verify that the product is used properly, and the designated contact time is met. vii. When mixing disinfectant, personnel shall wear eye and face protection, to include goggles, face shields, or equivalent PPE. Likewise, similar protection shall be used during fogging activities. viii. In order to ensure that the correct contact time is met, contractor personnel will apply rag/cloth soaked with the Ecolab Peroxide Multi Surface Cleaner and Disinfectant dilute mixture and liberally wipe the cloth on all applicable surfaces to ensure complete coverage. The entire surface shall be kept visibly wet for at least 45 seconds. Once the contact time has been achieved, the surface may be wiped down with a dry rag or allowed to air dry, depending on the location and amount of traffic in a given area 2.4 Disinfecting Procedures i. Cleaning/disinfecting shall focus on all high-touch surfaces and areas, to include but not be limited to: desks, computer mouses and keyboards, phones, lockers, cubbies, window sills and counter tops, doors, frames, doorknobs and push bars, elevator buttons, light switches, handrails, bathroom floors, faucet handles, toilet handles, toilet stall door locks, towel 2 vi. vil. viii. Xi. xii. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 25 of 232 dispensers and hand driers, showers, kitchen areas, cafeterias, office common areas, nursing stations, and other rooms. An alcohol solution shall be used for all electronics. These services shall be carried out in accordance with the CDC’s Coronavirus Disease 2019 (COVID-19) Environmental Cleaning and Disinfection Recommendations without restriction. Ventilate the rooms/spaces prior to and during cleaning/disinfecting. If ventilation through open windows is not possible, use a high-volume, high efficiency particulate air (HEPA) filter system to remove airborne particles from the air during cleaning. Temporarily increase the cleaning area’s humidity to approximately 50 percent relative humidity (RH), if possible. Prior to disinfecting, Spectrum and Rock Solid shall perform general cleaning, removing dirt and debris using the Ecolab Orange Force Multi Surface Cleaner and Degreaser, to include floor mopping. Clean all dust from horizontal surfaces with a towel dampened with the cleaner/degreaser to minimize re-aerosolization of settled contaminated dust and particles. Use a slow, smooth wiping action and change out or wet clean the towel on a regular basis to minimize re-aerosolization of collected dust and particulates. Dry sweeping with a typical straw or push-broom is not permitted. Instead, use of an electrostatic broom or brush (e.g., Swiffer Sweeper or equivalent) is permitted to remove dust and dirt particles prior to wet mopping. When mopping, ensure the floor surfaces that are disinfected stay wet for at least 45 seconds. Frequently re-wet the mop head to ensure a thorough soaking of the floor. Consider changing mop water at least once per day, and ensure designated mops are used for bathrooms and that these mops are not used elsewhere. Ensure that all stairwells in the housing units are mopped as well. Pay special attention to window ledges and other commonly dusty surfaces. Also pay special attention to frequently touched surfaces, such as railings, ledges, and countertops. Ensure that glass surfaces (e.g., windows, mirrors) are also disinfected. Disinfect ALL vertical surfaces to a height of at least 6 feet above the floor, including but not limited to walls, windows, columns, doors, rails, etc. As part of this protocol, it is strongly recommended that the contractor clean and disinfect heating, ventilation, and air conditioning (HVAC) supply and exhaust grills/diffusers, including removal of caked-on debris, dust, grease, etc. This will likely require the use of a ladder as these features are typically located at ceiling level. Disinfect floors by mopping with Ecolab Peroxide Multi Surface Cleaner and Disinfectant (this is the second round of mopping). Avoid aerosolizing the dirty cleaning liquid by using steady and sweeping mop swipes and careful, deliberate mop head squeezes. Restrooms shall receive special attention due to the tendency of the SARS-CoV-2 virus to bioaccumulate within feces, vomit, sputum, and urine. Clean any surfaces that have visible blood, stool, or body fluids. Trash liners shall be removed, and the trash receptacles disinfected. After air drying of the trash receptacles, a new liner shall be inserted in each receptacle. Following disinfecting, the DOC representative shall identify areas for fogging. Fogging shall be accomplished using ultra-low-volume foggers (a sprayer shall not be used as a substitute for a fogger) to ensure that all surfaces are adequately saturated. In general, fogging of walls shall be 3 xiii. Xiv. XV. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 26 of 232 2.5 applied to a height of 6 feet. When fogging, employees shall wear a full-face respirator equipped with organic vapor and acid gas cartridges. Access to the areas in which fogging is conducted shall be limited until the fogging aerosols have settled. For soft (porous) surfaces such as carpeted floors, rugs, and drapes, remove visible contamination if present, and clean with appropriate cleaners indicated for use on these surfaces. If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely. Otherwise, use products with the U.S. Environmental Protection Agency (USEPA)- approved emerging viral pathogens claims that are suitable for porous surfaces. Vacuum carpeting and other fabrics with vacuums equipped with HEPA filtration systems. Take appropriate precautions when changing the vacuum HEPA or pre-filter to minimize exposures to airborne dusts. Although the procedures described herein are designed for Spectrum and Rock Solid, ensure that any other entity performing disinfectant cleaning at the facilities (e.g., Summit in the dining rooms or the inmate cleaning detail) are following these procedures as well or are following equivalent procedures. Employee Safety Spectrum and Rock Solid employees shall complete the appropriate training, to include COVID- 19 awareness, hazard communication (with specific attention on the hazards of the cleaners and disinfectants to be used), and bloodborne pathogens exposure control. Protection from potential viral infection from skin contact and aerosol inhalation is required through the use of PPE and hand washing. The minimal level of PPE for workers performing the decontamination and disinfection includes a face mask and nitrile gloves. Additional PPE shall be permitted as desired, to include half-mask or full-face negative pressure respirators with dual P-100 organic vapor and acid gas cartridges and full-body Tyvek coveralls (with shoe coverings). Gloves may be sealed to the coveralls with duct tape for additional protection, and replaced immediately if punctured or torn. Crew members shall inspect each other to verify that the PPE is donned correctly prior to beginning work. Cleaning employees shall be reminded to avoid touching any unprotected parts of the face. Employees shall wear goggles while transferring and/or diluting the Ecolab Peroxide Multi Surface Cleaner and Disinfectant, and while emptying buckets. Employees shall be medically approved, trained, and properly fit-tested to wear the respective respirators. If any breaches should occur in the PPE or if contact with unprotected skin occurs, the following steps must be followed: a. immediately stop work; b. remove the damaged PPE; c. wash the skin with soap and warm water (if soap and water are not available, use an alcohol-based hand sanitizer that contains 60 to-95 percent alcohol); and d. report the breach to the crew leader. Extension cords for portable electrical equipment will be protected by ground fault circuit interrupters (GFCl). Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 27 of 232 Vv. Slip hazards are a potential concern due to the wet application (mopping of floors). Non-slip shoes shall be worn. 3.0 Quality Control and Oversight The PHE industrial hygienist (or designated DC DOC employee) shall conduct random observations/inspections of wiped/mopped/fogged areas and document that the required contact time for the disinfectant (45 seconds) was achieved. The form in Attachment B may be used for this purpose, if desired. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 28 of 232 ATTACHMENT A — SAFETY DATA SHEETS (SDSs) Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 29 of 232 SAFETY DATA SHEET ECOLAB PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT | SECTION 1. PRODUCT AND COMPANY IDENTIFICATION Product name Other means of identification Recommended use Restrictions on use Product dilution information Company Emergency health information Issuing date PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Not applicable Disinfectant Reserved for industrial and professional use. 3.125 % - 4.6875 % Ecolab Inc. 1 Ecolab Place St. Paul, Minnesota USA 55102 1-800-352-5326 1-800-328-0026 (US/Canada), 1-651-222-5352 (outside US) 02/03/2020 | SECTION 2. HAZARDS IDENTIFICATION GHS Classification Product AS SOLD Acute toxicity (Oral) Acute toxicity (Inhalation) Acute toxicity (Dermal) Skin corrosion Serious eye damage Skin sensitization Product AT USE DILUTION Eye irritation GHS label elements Product AS SOLD Hazard pictograms Signal Word Hazard Statements Precautionary Statements : Category 4 : Category 3 : Category 4 : Category 1A : Category 1 : Category 1 : Category 2B GIN CEE Danger Harmful if swallowed or in contact with skin. Causes severe skin burns and eye damage. May cause an allergic skin reaction. Toxic if inhaled. Prevention: Avoid breathing dust/ fume/ gas/ mist/ vapors/ spray. Wash skin thoroughly after handling. Do not eat, drink or smoke when using this product. Use only outdoors or in a well-ventilated area. Contaminated work clothing must not be allowed out of the workplace. Wear 914443-01 1/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 30 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT protective gloves/ protective clothing/ eye protection/ face protection. Response: IF SWALLOWED: Call a POISON CENTER/doctor if you feel unwell. Rinse mouth. IF SWALLOWED: Rinse mouth. Do NOT induce vomiting. IF ON SKIN (or hair): Take off immediately all contaminated clothing. Rinse skin with water/shower. IF INHALED: Remove person to fresh air and keep comfortable for breathing. Immediately call a POISON CENTER/doctor. IF IN EYES: Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. Immediately call a POISON CENTER/doctor. If skin irritation or rash occurs: Get medical advice/ attention. Wash contaminated clothing before reuse. Storage: Store in a well-ventilated place. Keep container tightly closed. Store locked up. Disposal: Dispose of contents/ container to an approved waste disposal plant. Product AT USE DILUTION Signal Word : Warning Hazard Statements : Causes eye irritation. Precautionary Statements : Prevention: Wash skin thoroughly after handling. Response: IF IN EYES: Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. If eye irritation persists: Get medical advice/ attention. Product AS SOLD Other hazards : Do not mix with bleach or other chlorinated products — will cause chlorine gas. | SECTION 3. COMPOSITION/INFORMATION ON INGREDIENTS Product AS SOLD Pure substance/mixture : Mixture Chemical name CAS-No. Concentration (%) dodecylbenzene sulfonic acid 27176-87-0 5-10 Hydrogen peroxide 7722-84-1 8 Proprietary Fragrance Proprietary Ingredient 0.1-1 Sulfuric acid 7664-93-9 0.1-1 Product AT USE DILUTION Chemical name CAS-No. Concentration (%) dodecylbenzene sulfonic acid 27176-87-0 0.1-1 Hydrogen peroxide 7722-84-1 0.375 | SECTION 4. FIRST AID MEASURES Product AS SOLD In case of eye contact : Rinse immediately with plenty of water, also under the eyelids, for at least 15 minutes. Remove contact lenses, if present and easy to do. Continue rinsing. Get medical attention immediately. In case of skin contact : Wash off immediately with plenty of water for at least 15 minutes. Use 914443-01 2/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 31 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT If swallowed If inhaled Protection of first-aiders Notes to physician Most important symptoms and effects, both acute and delayed Product AT USE DILUTION In case of eye contact In case of skin contact lf swallowed If inhaled a mild soap if available. Wash clothing before reuse. Thoroughly clean shoes before reuse. Get medical attention immediately. Rinse mouth with water. Do NOT induce vomiting. Never give anything by mouth to an unconscious person. Get medical attention immediately. Remove to fresh air. Treat symptomatically. Get medical attention immediately. If potential for exposure exists refer to Section 8 for specific personal protective equipment. : Treat symptomatically. See Section 11 for more detailed information on health effects and symptoms. Rinse with plenty of water. Rinse with plenty of water. Rinse mouth. Get medical attention if symptoms occur. Get medical attention if symptoms occur. | SECTION 5. FIRE-FIGHTING MEASURES Product AS SOLD Suitable extinguishing media Unsuitable extinguishing media Specific hazards during fire fighting Hazardous combustion products Special protective equipment for fire-fighters Specific extinguishing methods Use extinguishing measures that are appropriate to local circumstances and the surrounding environment. None known. Oxidizer. Contact with other material may cause fire. Decomposition products may include the following materials: Carbon oxides Sulfur oxides Use personal protective equipment. Fire residues and contaminated fire extinguishing water must be disposed of in accordance with local regulations. In the event of fire and/or explosion do not breathe fumes. | SECTION 6. ACCIDENTAL RELEASE MEASURES Product AS SOLD Personal precautions, protective equipment and emergency procedures Ensure adequate ventilation. Keep people away from and upwind of spill/leak. Avoid inhalation, ingestion and contact with skin and eyes. When workers are facing concentrations above the exposure limit they must use appropriate certified respirators. Ensure clean-up is 914443-01 3/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 32 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT conducted by trained personnel only. Refer to protective measures listed in sections 7 and 8. Environmental precautions : Do not allow contact with soil, surface or ground water. Methods and materials for : Stop leak if safe to do so. Contain spillage, and then collect with non- containment and cleaning up combustible absorbent material, (e.g. sand, earth, diatomaceous earth, vermiculite) and place in container for disposal according to local / national regulations (see section 13). Flush away traces with water. Isolate absorbed wastes contaminated with this product from other waste streams containing combustible materials (paper, wood fibers, cloth, etc.). Combustible materials exposed to this product should be rinsed immediately with large amounts of water to ensure that all product is removed. Residual product which is allowed to dry on organic materials such as _ rags, cloths, paper, fabrics, cotton, leather, wood, or other combustibles may spontaneously ignite and result in a fire. Product AT USE DILUTION Personal precautions, : Refer to protective measures listed in sections 7 and 8. protective equipment and emergency procedures Environmental precautions : Do not allow contact with soil, surface or ground water. Methods and materials for : Stop leak if safe to do so. Contain spillage, and then collect with non- containment and cleaning up combustible absorbent material, (e.g. sand, earth, diatomaceous earth, vermiculite) and place in container for disposal according to local / national regulations (see section 13). Flush away traces with water. For large spills, dike spilled material or otherwise contain material to ensure runoff does not reach a waterway. | SECTION 7. HANDLING AND STORAGE Product AS SOLD Advice on safe handling : Do not ingest. Do not get in eyes, on skin, or on clothing. Do not breathe dust/ fume/ gas/ mist/ vapors/ spray. Use only with adequate ventilation. Wash hands thoroughly after handling. Do not mix with bleach or other chlorinated products — will cause chlorine gas. In case of mechanical malfunction, or if in contact with unknown dilution of product, wear full Personal Protective Equipment (PPE). Conditions for safe storage : Keep ina cool, well-ventilated place. Keep away from reducing agents. Keep away from strong bases. Keep away from combustible material. Keep out of reach of children. Keep container tightly closed. Store in suitable labeled containers. Storage temperature : 15°C to 40°C Product AT USE DILUTION Advice on safe handling : Wash hands thoroughly after handling. In case of mechanical malfunction, or if in contact with unknown dilution of product, wear full Personal Protective Equipment (PPE). Conditions for safe storage : Keep out of reach of children. Store in suitable labeled containers. | SECTION 8. EXPOSURE CONTROLS/PERSONAL PROTECTION Product AS SOLD 914443-01 4/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 33 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Ingredients with workplace control parameters Components CAS-No. Form of Permissible Basis exposure concentration Hydrogen peroxide 7722-84-1 TWA 1 ppm ACGIH TWA 1 ppm NIOSH REL 1.4 mg/m3 TWA 1 ppm OSHA 21 1.4 mg/m3 sulphuric acid 7664-93-9 TWA (Thoracic | 0.2 mg/m3 ACGIH fraction) TWA 1 mg/m3 NIOSH REL TWA 1 mg/m3 OSHA 21 Engineering measures : Effective exhaust ventilation system. Maintain air concentrations below occupational exposure standards. Personal protective equipment Eye protection : Wear eye protection/ face protection. Hand protection : Wear the following personal protective equipment: Standard glove type. Gloves should be discarded and replaced if there is any indication of degradation or chemical breakthrough. Skin protection : Personal protective equipment comprising: suitable protective gloves, safety goggles and protective clothing Respiratory protection : When workers are facing concentrations above the exposure limit they must use appropriate certified respirators. Hygiene measures : Handle in accordance with good industrial hygiene and safety practice. Remove and wash contaminated clothing before re-use. Wash face, hands and any exposed skin thoroughly after handling. Provide suitable facilities for quick drenching or flushing of the eyes and body in case of contact or splash hazard. Product AT USE DILUTION Engineering measures : Good general ventilation should be sufficient to control worker exposure to airborne contaminants. Personal protective equipment Eye protection : No special protective equipment required. Hand protection : No special protective equipment required. Skin protection : No special protective equipment required. Respiratory protection : No personal respiratory protective equipment normally required. | SECTION 9. PHYSICAL AND CHEMICAL PROPERTIES Product AS SOLD Product AT USE DILUTION Appearance : liquid liquid Color : Clear, yellow yellow 914443-01 5/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 34 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Odor : Perfumes, fragrances Perfumes, fragrances pH : 0.5-1.5, (100 %) 2.0-2.5 Flash point Not applicable, Does not sustain combustion. Odor Threshold Melting point/freezing point Initial boiling point and boiling range Evaporation rate Flammability (solid, gas) Upper explosion limit Lower explosion limit Vapor pressure Relative vapor density Relative density Water solubility Solubility in other solvents Partition coefficient: n- octanol/water Autoignition temperature Thermal decomposition Viscosity, kinematic Explosive properties Oxidizing properties Molecular weight VOC No data available No data available : >100°C No data available Not applicable No data available No data available No data available No data available 1.025 - 1.049 : soluble No data available No data available No data available No data available No data available No data available : The substance or mixture is not classified as oxidizing. No data available No data available | SECTION 10. STABILITY AND REACTIVITY Product AS SOLD Reactivity No dangerous reaction known under conditions of normal use. Chemical stability : Contamination may result in dangerous pressure increases - closed containers may rupture. Possibility of hazardous Do not mix with bleach or other chlorinated products — will cause reactions chlorine gas. Conditions to avoid None known. Incompatible materials : Bases Metals Hazardous decomposition products In case of fire hazardous decomposition products may be produced such as: Carbon oxides Sulfur oxides | SECTION 11. TOXICOLOGICAL INFORMATION 914443-01 6/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 35 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Information on likely routes of exposure Potential Health Effects Product AS SOLD Eyes Skin Ingestion Inhalation Chronic Exposure Product AT USE DILUTION Eyes Skin Ingestion Inhalation Chronic Exposure Inhalation, Eye contact, Skin contact Causes serious eye damage. Harmful if absorbed through skin. Causes severe skin burns. May cause allergic skin reaction. Harmful if swallowed. Causes digestive tract burns. : Toxic if inhaled. May cause nose, throat, and lung irritation. Health injuries are not known or expected under normal use. Causes eye irritation. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Experience with human exposure Product AS SOLD Eye contact Skin contact Ingestion Inhalation Product AT USE DILUTION Eye contact Skin contact Ingestion Inhalation Toxicity Product AS SOLD Product Acute oral toxicity Acute inhalation toxicity Acute dermal toxicity Redness, Pain, Corrosion Redness, Pain, Irritation, Corrosion, Allergic reactions Corrosion, Abdominal pain Respiratory irritation, Cough Redness, Irritation No symptoms known or expected. No symptoms known or expected. No symptoms known or expected. : Acute toxicity estimate : > 300 mg/kg : Acute toxicity estimate : 0.55 mg/| Test atmosphere: dust/mist : Acute toxicity estimate : > 1,200 mg/kg 914443-01 7/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 36 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Respiratory or skin : No data available sensitization Carcinogenicity : No data available Reproductive effects : No data available Germ cell mutagenicity : No data available Teratogenicity : No data available STOT-single exposure : No data available STOT-repeated exposure : No data available Aspiration toxicity : No data available | SECTION 12. ECOLOGICAL INFORMATION Product AS SOLD Ecotoxicity Environmental Effects : Harmful to aquatic life. Product Toxicity to fish : No data available Toxicity to daphnia and other : No data available aquatic invertebrates Toxicity to algae : No data available Components Toxicity to fish : dodecylbenzene sulfonic acid 96 h LC50: 4.3 mg/l Sulfuric acid 96 h LC50: 22 mg/l Components Toxicity to algae : Hydrogen peroxide 72 h EC50: 1.38 mg/l Persistence and degradability Product AS SOLD Not applicable - inorganic Product AT USE DILUTION Not applicable - inorganic Bioaccumulative potential No data available Mobility in soil No data available Other adverse effects No data available | SECTION 13. DISPOSAL CONSIDERATIONS 914443-01 8/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 37 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Product AS SOLD Disposal methods Disposal considerations RCRA - Resource Conservation and Recovery Authorization Act Hazardous waste Product AT USE DILUTION Disposal methods Disposal considerations Do not contaminate ponds, waterways or ditches with chemical or used container. Where possible recycling is preferred to disposal or incineration. If recycling is not practicable, dispose of in compliance with local regulations. Dispose of wastes in an approved waste disposal facility. Dispose of as unused product. Empty containers should be taken to an approved waste handling site for recycling or disposal. Do not re- use empty containers. Dispose of in accordance with local, state, and federal regulations. D002 (Corrosive) Diluted product can be flushed to sanitary sewer. Dispose of in accordance with local, state, and federal regulations. | SECTION 14. TRANSPORT INFORMATION Product AS SOLD The shipper/consignor/sender is responsible to ensure that the packaging, labeling, and markings are in compliance with the selected mode of transport. Land transport (DOT) Not dangerous goods Sea transport (IMDG/IMO) Not dangerous goods | SECTION 15. REGULATORY INFORMATION Product AS SOLD EPA Registration number 1677-238 EPCRA - Emergency Planning and Community Right-to-Know CERCLA Reportable Quantity Components CAS-No. Component RQ (Ibs) | Calculated product RQ (Ibs) dodecylbenzene sulfonic acid 27176-87-0 1000 10416 SARA 304 Extremely Hazardous Substances Reportable Quantity This material does not contain any components with a section 304 EHS RQ. SARA 311/312 Hazards : Acute toxicity (any route of exposure) Skin corrosion or irritation Serious eye damage or eye irritation Respiratory or skin sensitization 914443-01 9/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 38 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT SARA 302 : The following components are subject to reporting levels established by SARA Title Ill, Section 302: Hydrogen peroxide 7722-84-1 5-10 % SARA 313 : This material does not contain any chemical components with known CAS numbers that exceed the threshold (De Minimis) reporting levels established by SARA Title Ill, Section 313. California Prop. 65 This product does not contain any chemicals known to the State of California to cause cancer, birth, or any other reproductive defects. California Cleaning Product Right to Know Act of 2017 (SB 258) This regulation applies to this product. Chemical Name CAS-No. Function List(s) water 7732-18-5 Diluent Not Applicable dodecylbenzene sulfonic acid 27176-87-0 Cleaning Agent Not Applicable Hydrogen peroxide 7722-84-1 Biocide Not Applicable Fragrance Ingredient(s) Not Available Fragrance Not Applicable Aryl carboxylic acid Withheld Stabilizer Not Applicable Yellow dye Withheld Dye Not Applicable Silicone Withheld Processing Aid Not Applicable *refer to ecolab.com/sds for electronic links to designated lists The ingredients of this product are reported in the following inventories: Switzerland. New notified substances and declared preparations : not determined United States TSCA Inventory : All substances listed as active on the TSCA inventory Canadian Domestic Substances List (DSL) : This product contains one or several components listed in the Canadian NDSL. Australia Inventory of Chemical Substances (AICS) : not determined New Zealand. Inventory of Chemical Substances : not determined Japan. ENCS - Existing and New Chemical Substances Inventory : not determined Korea. Korean Existing Chemicals Inventory (KECI) : On the inventory, or in compliance with the inventory Philippines Inventory of Chemicals and Chemical Substances (PICCS) : On the inventory, or in compliance with the inventory China. Inventory of Existing Chemical Substances in China (IECSC) : not determined Taiwan Chemical Substance Inventory (TCSI) : not determined 914443-01 10/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 39 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT | SECTION 16. OTHER INFORMATION Product AS SOLD NFPA: HMIS III: Flammability HEALTH Lv / 0 = not significant, 1 = Slight, Special hazard 2 = Moderate, 3 = High 4 = Extreme, * = Chronic FLAMMABILITY Health Ayige}su| PHYSICAL HAZARD 0 Product AT USE DILUTION NFPA: HMIS III: Flammability HEALTH Lv FLAMMABILITY Health sy Ayuiqeysu| PHYSICAL HAZARD 0 ; 0 = not significant, 1 = Slight, Special hazard 2 = Moderate, 3 = High 4 = Extreme, * = Chronic Issuing date : 02/03/2020 Version > 1.12 Prepared by : Regulatory Affairs REVISED INFORMATION: Significant changes to regulatory or health information for this revision is indicated by a bar in the left-hand margin of the SDS. The information provided in this Safety Data Sheet is correct to the best of our knowledge, information and belief at the date of its publication. The information given is designed only as a guidance for safe handling, use, processing, storage, transportation, disposal and release and is not to be considered a warranty or quality specification. The information relates only to the specific material designated and may not be valid for such material used in combination with any other materials or in any process, unless specified in the text. 914443-01 11/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 40 of 232 “Cher. SAFETY DATA SHEET SYSTE . Xpress Detergent Disinfectant 1. PRODUCT AND COMPANY IDENTIFICATION Product Name: Xpress Detergent Disinfectant Product Code: A0346 Recommended Use: General cleaner and disinfectant Company Auto-Chlor System 746 Poplar Avenue Memphis, TN 38105 Questions/Comments: 901-579-2300 Emergency Telephone Numbers MEDICAL: 1-866-923-4946 (PROSAR) SPILLS: 1-800-424-9300 (CHEMTREC) 2. HAZARDS IDENTIFICATION OSHA Hazard Classification Signal Word: WARNING Acute Toxicity: Category 4 (oral) Acute Toxicity: Category 4 (dermal) Eye Irritation: Category 2B HAZARD STATEMENTS PRECAUTIONARY STATEMENTS H302: Harmful if swallowed P264: Wash hands thoroughly after handling H312: Harmful in contact with skin P270: Do not eat, drink or smoke when using this H320: Causes eye irritation product P280: Wear eye protection P301/P312: If swallowed, call a poison center or or physician if you feel unwell. rinse mouth. P302/P352: If on skin, wash with plenty of soap and water. P362/P364: Take off contaminated clothing and wash it before reuse. 3. COMPOSITION/INFORMATION ON INGREDIENTS INGREDIENTS CAS NO. % _Diethylene glycol monobutyl ether 112-34-5 8 Tetra sodium ethylenediamine tetra acetic acid (Na4 EDTA) 64-02-8 1.6 1of5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 41 of 232 Xpress Detergent Disinfectant _Alkyl (68% C12, 32% C14) dimethyl ethylbenzyl ammonium chloride 85409-23-0 0.11 _Alkyl dimethyl benzyl ammonium chloride (C12-C18) 68391-01-5 0.11 Other components below reportable levels 141-43-5 <1.0 4. FIRST AID MEASURES Ingestion: If swallowed, call a poison center if you feel unwell. Rinse mouth. Skin Contact: If on skin, wash with plenty of water. If skin irritation occurs, get medical advice. Take off contaminated clothing and wash it before reuse. Eye Contact: If in eyes, rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. If eye irritation persists, get medical advice. 5. FIREFIGHTING MEASURES Extinguishing Media: Specific Hazards: Protective Equipment: Class A/B/C fire extinguisher, dry chemical, carbon dioxide, or foam During fire, gases hazardous to health may be formed. Wear full protective clothing and self-contained breathing apparatus 6. ACCIDENTAL RELEASE MEASURES Personal Precautions: Protective Equipment: Cleanup Procedures: Isolate spill or leak area immediately. Adequately ventilate area. Wear appropriate personal protective equipment as specified in Section 8. Absorb with earth, sand or other non-combustible material and transfer to containers for later disposal. 7. HANDLING AND STORAGE Handling Precautions: Storage: Do not eat, drink or smoke when using this product. Wash hands thoroughly after handling. Avoid prolonged exposure. Avoid release to the environment. FOR INDUSTRIAL AND INSTITUTIONAL USE ONLY. Protect from freezing. Keep tightly closed in a dry, cool and well ventilated place. 8. EXPOSURE CONTROLS/PERSONAL PROTECTION Occupational Exposure Limits: No occupational exposure limits established for this product. Appropriate Engineering Controls: Good general ventilation should be sufficient to control airborne levels. Personal Protective Equipment 2o0i5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 42 of 232 Xpress Detergent Disinfectant Eye Protection: Wear protective glasses, goggles or eye shield. Skin Protection: Wear protective gloves. Respiratory Protection: In case of insufficient ventilation, wear suitable respiratory equipment. 9. PHYSICAL AND CHEMICAL PROPERTIES Appearance: Evaporation Rate: liquid No information available Odor: Odor Threshold: Citrus No information available pH: Vapor Density: 11.7 No information available Specific Gravity: Vapor Pressure: No information available No information available Solubility: Partition Coefficient: Soluble in water No information available Flash Point: Auto-lgnition Temperature: > 93.9C No information available Boiling Point: Decomposition Temperature: No information available No information available voc: Melting/Freezing Point: No information available No information available Viscosity: Flammability: No information available No information available Lower Explosive / Upper Explosive: No information available 10.STABILITY AND REACTIVITY Stability: Stable under normal conditions Hazardous Polymerization: Will not occur Incompatibility: Strong acids, alkalies, and oxidizing agents. Hazardous Decomposition Products: Oxides of nitrogen ammonia, carbon dioxide, carbon Monoxide, and other low molecular weight hydrocarbons 11. TOXICOLOGY INFORMATION Likely Routes of Exposure: Inhalation, eye and skin contact Acute Symptoms Eye and Skin Contact: Causes eye irritation and causes mild skin irritation. Ingestion: Expected to be a low ingestion hazard. Inhalation: Prolonged inhalation may be harmful. 3o0f 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 43 of 232 Xpress Detergent Disinfectant Chronic Effects: None known Assessment of acute toxicity: Oral LDso Dermal LDso Inhalation LCso >5 g/kg >5 g/kg 2.43 mg/| 12.ECOLOGICAL INFORMATION Toxic to aquatic life. Harmul to aquatic life with long lasting effects. Expected to be readily biodegradable. 13.DISPOSAL CONSIDERATIONS Pesticide wastes are acutely hazardous. Improper disposal of all excess pesticide spray mixture or rinsate is a violation of Federal Law. If these wastes cannot be disposed of by use according to label directions, contact your State Pesticide or Environmental Control Agency, or the Hazardous Waste Representatives at the nearest EPA Regional Office for guidance. 14.TRANSPORT INFORMATION UN Number: Not classified Proper Shipping Name: Not classified Hazard Class: Not classified Packing Group: Not classified 15.REGULATORY INFORMATION This chemical is a pesticide product registered by the Environmental Protection Agency and is subject to certain labeling requirements under federal pesticide law. These requirements differ from the classification criteria and hazard information required for safety data sheets, and for workplace labels of non-pesticide chemicals. The pesticide label also includes other important information, including directions for use, pesticide storage and container handling. EPA REGISTRATION NUMBER: 1839-83-6243 16.OTHER INFORMATION Revision Date: 03/05/2020 Supersedes: new Reason for Revision: New formulation Notice to Reader: This document has been prepared using data from sources considered technically reliable. It does not constitute a warranty, express or implied, as to the accuracy of the information contained within. Actual conditions of use and handling are beyond seller’s control. User is 4o0f5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 44 of 232 Xpress Detergent Disinfectant responsible to evaluate all available information when using product for any particular use and to comply with all Federal, State, Provincial and Local laws and regulations. 5of 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 45 of 232 ATTACHMENT B — INDUSTRIAL HYGIENIST OBSERVATION LOG Industrial Hygienist Date Facility Surface Cleaning Observation Location Adequate | Deficient Disinfectant Contact Time Observation Location Time Minutes lied Until Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 46 of 232 Ex D Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 47 of 232 FOLLOW-UP ONSITE AUDIT INSPECTION REPORT ENVIRONMENTAL CONDITIONS INSPECTION FOR SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS (DC DOC), CENTRAL DETENTION FACILITY (CDF) AND CORRECTIONAL TREATMENT FACILITY (CTF) JULY 23, 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14* Street NW, 7* Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302, Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 48 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of the protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can help prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020 and conducted initial on-site observational inspections to verify compliance with the protocol on June 29 and July 1, 2020. Following these observational inspections, the disinfection protocol was revised and a report was provided to DC DOC summarizing the inspections and recommending a number of corrective actions to improve work practices and procedures. A follow up observational inspection was conducted on July 20, 2020 to verify implementation of the corrective action recommendations by the contractors who are conducting the disinfection. AUDIT OVERVIEW SCOPE PHE Industrial Hygienist Gary Morris conducted the follow up inspection of the DC DOC Central Detention Facility (CDF) and the Correctional Treatment Facility (CTF). This report contains observations from these follow up inspections, deviations deficiencies and from prescribed work practices and procedures, and corrective action recommendations. An In-Brief Meeting was held prior to the inspections and was attended by DC DOC representatives Gloria Robertson and Rena Myles. At the conclusion of the inspections, an Out-Brief Meeting was held that was attended by Ms. Robertson, Ms. Myles, and Gitana Stewart-Ponder to summarize observations, deficiencies, and corrective action recommendations from the follow up inspection. Sanitizing and disinfection of the CDF is being conducted by Rock Solid Rock Solid District Group, LLC and by Spectrum Management, LLC in the CTF. SUMMARY OF FINDINGS Tables 1A (CDF) and 1B (CTF) contain summaries of the findings from the initial oversight inspections, the recommended corrective action contained in the initial report, the status of each corrective action, and additional corrective action. Positive observations from the follow up inspection consist of the following: e Some of the Spectrum Management, LLC staff did not wring out the rags after dipping in the bucket, increasing adequate coverage and contact time of surfaces (the rags were visibly soaked with the disinfectant). e Spectrum Management, LLC staff carried the dip buckets and mop buckets with them to the areas in which they were disinfecting, increasing the frequency of re-wetting of the rags and mops. e Spectrum Management, LLC staff periodically refilled the wipe buckets with the disinfectant. It is recommended that these work practices be implemented by Rock Solid District Group, LLC in the CTF. Potomac-Hudson Engineering, Inc. Page 2 as Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 49 of 232 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report DC Department of Corrections July 23, 2020 TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant). In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces can then be wiped dry with a dry rag or are allowed to air-dry, as appropriate in a given area. The majority of contractor employees were still using spray application as opposed to wet wiping. Spray application was observed used on telephones, tables, and benches in one of the housing blocks. Also, the employees who were wet wiping were not returning to the cart to re-wet their rags at such a frequency to ensure the 45 second contact time on all of the surfaces treated. We also noted that surface drying in the housing units was faster due to the existence of wall and floor fans in the hallways (to help with conditioning the space). Replace all spray application with wet wiping. Periodically remind contractor staff that the objective of their work is to disinfect surfaces as opposed to cleaning the surfaces, reinforcing the required 45 second contact time, with additional attention to the housing units due to the faster surface drying facilitated by the wall and floor fans. Instruct crew staff to liberally wet the rags and avoid wringing them out and to take the bucket with them to enable frequent re- wetting without returning to the cart. Ensure that all applicable items are disinfected (the exercise machine in the South 3 Housing Unit was not disinfected). Potomac-Hudson Engineering, Inc Page 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 50 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for adequate wetting of the floor during mopping. On several occasions it was observed that a wet mop was used for an overly extensive period of time before being re-wetted. This resulted in portions of the floor being inadequately damped with a sufficient amount of disinfectant to ensure a 45 second contact time. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non- communal spaces). Ensure that mops are frequently wetted in the mop bucket during floor mopping. Consider requiring the contractor to provide additional mop buckets and dollies so that each person mopping has access to their own dolly that can be toted along with them as they mop. Based on site observations, there was an insufficient number of mop dollies. This required the dollies to remain in a centralized position and discouraged floor cleaners from more frequently wetting their mop heads. achieved. Additionally, the mop buckets themselves, which have their own sets of wheels on them, should be removed from the dollies and transported with those mopping the floors. The contractor was not observed disinfecting walls. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. Observations of floor mopping indicated that the 45 second contact time was As noted above, the existence of wall and floor fans in the housing units facilitates faster drying of surfaces, including floors in these areas. As an added measure, periodically remind contractor staff that additional attention is needed to ensure the 45 second contact time (i.e. periodically return the mop to the bucket to re-wet the mop) in the housing units. Removing the mop buckets from the carts will facilitate more frequent we-wetting of the mop heads. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. Potomac-Hudson Engineering, Inc Page 4 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 51 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. Currently, the cleaning contractor is only responsible for disinfecting the floor and doorknobs/door handles in the basement. Although DOC staff are responsible for the remaining areas, it is unclear if they know all the surfaces they need to clean and/or if they are aware of the proper contact time for the disinfectant. The contractor was observed cleaning windows, mirrors, and other glass surfaces with an ammonium-based window cleaner (Ecolab Oasis 255SF Industrial Window Cleaner) as opposed to an EPA registered product. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they atrive. Ensure the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. Ensure that staff cleaning personnel are familiar with and are properly implementing the cleaning protocols currently being provided to the third-party contractors. Test the hydrogen peroxide-based disinfectant on glass surfaces. If acceptable, consider using the disinfectant on these surfaces instead of, or in addition to, traditional window cleaning chemicals. DC DOC has not been able to procure the dust mops through their supplier and is investigating additional suppliers. Work practices using the brooms in such a manner to minimize dispersion of accumulated dust were observed. Continue attempts to procure the dust mops. DOC staff has been informed of the surfaces to be addressed and the importance of the 45 second contact time. No additional action is required. The hydrogen peroxide-based disinfectant was used on all surfaces. Other products were not observed on the carts. No additional action is required. Potomac-Hudson Engineering, Inc Page 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 52 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT In some cases, contractor personnel were Ensure that all chemicals and The hydrogen peroxide-based No additional action is required. observed cleaning doorknobs, door handles, | cleaning procedures are disinfectant was used on all surfaces. and other frequently-touched surfaces with a _ consistently applied throughout Other products were not observed on the hand sanitizer. While this is technically the facility. If hand sanitizer isto | carts. sufficient for disinfection, it is not be be used on a regular basis for applied consistently in all areas and the these surfaces, they should be proper contact time may or may not be documented in the cleaning properly implemented. protocol. The contractor (Summit) that currently Ensure that Summit is performing DC DOC has discussed appropriate No additional action is required. provides food service duties in the cafeteria | proper disinfection in a manner disinfection practices with Summit is solely responsible for cleaning and that is consistent with or exceeds | (surfaces are disinfected three times per disinfecting that area of the facility. Itis not the procedures being used day). known if they are aware of or are following | elsewhere at the facility. the proper protocols for disinfection in a manner consistent with the other areas of the facility. Potomac-Hudson Engineering, Inc Page 6 ak Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 53 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide- based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or be allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. No additional action is required. Spraying and wiping of surfaces has been replaced with wet wiping. The 45 second contact time was achieved on all surfaces observed, including walls. No additional action is required. Observations during the follow up inspection indicated that appropriate surfaces, including walls were effectively being disinfected. Potomac-Hudson Engineering, Inc Page 7 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 54 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. The contractor was not always performing its duties in a consistent manner. The following observations were made: e Some of the grated stairwells in the housing areas were mopped, while others were not. e In one area, contractor personnel were using hand sanitizer to disinfect doorknobs, door handles, and phones. However, in other areas, the peroxide disinfectant was used. e Inthe 96 Medical Area, the contractor did not clean the area between the gates and the elevators. However, this area was cleaned in the 82 Medical Area. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure that the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. The following recommendations are made: e Ensure that all stairwells in the housing units are mopped. e = Since different disinfectants require different contact times (depending on the active ingredients), ensure that the contractor is consistent in what they use. The contact time for ethanol (5 minutes) is much greater than that for peroxide (45 seconds). e Ensure that the contractor is clear on what areas are considered within their scope of work and which areas are not and ensure that they clean and disinfect all of the areas for which they are responsible. DC DOC has not been able to procure the dust mops through their supplier and is investigating additional suppliers. Work practices using the brooms in such a manner to minimize dispersion of accumulated dust were observed. Continue attempts to procure the dust mops. No additional action is required. All applicable surfaces were addressed in the areas observed. The hydrogen peroxide-based disinfectant was used on all surfaces. Other products were not observed on the carts. Potomac-Hudson Engineering, Inc Page 8 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 55 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor was observed mixing and handling both the concentrated form of the peroxide disinfectant as well as the diluted form. In its concentrated form, the disinfectant has a pH of less than 2 and is extremely corrosive. Even in its diluted form, the disinfectant is still corrosive and presents danger to users. Contractor personnel were not wearing certain personal protective equipment (PPE) while performing these tasks. The contractor was also observed using the fogging unit without eye protection. It is recommended that the personnel handling | Appropriate personal protective and mixing the disinfectant in the mixing equipment was worn during mixing and room wear goggles and/or face shield to transfers of the disinfectant. Fogging protect their eyes and face. Consider also was not conducted on the day of the requiring longer gloves that cover exposed follow-up inspection. skin between hands and sleeves. Consider requiring the contractor to where eye protection during fogging. No additional action is required on the part of Spectrum Management. PHE will attempt to observe fogging during the next oversight inspection. Potomac-Hudson Engineering, Inc Page 9 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 56 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report CORRECTIVE ACTION PLAN PHE has developed a brief corrective action plan (CAP) as part of this document. A CAP is a step-by-step plan of action that is developed to achieve targeted outcomes for resolution of identified errors in an effort to: e Identify the most cost-effective actions that can be implemented to correct error causes e Develop and implement a plan of action to improve processes or methods so that outcomes are more effective and efficient e Achieve measurable improvement in the highest priority areas e Eliminate repeated deficient practices DISCUSSIONS WITH CONTRACTORS The findings made by PHE should be discussed directly with supervisors for each cleaning contractor, including potentially sharing this document with them. Each of the deficiencies should be identified, and the recommendations for correction should be explored. It is possible that the contractors may identify and suggest other corrective measures as alternatives to those suggested in this document. As long as the same goal is reached, any alternative or additional procedures can be implemented as well. PERIODIC RE-INSPECTIONS AS part of the existing scope of work, PHE is scheduled to conduct up two (2) follow up monthly site inspections to ensure that the contractors are adhering to the recommended protocols and that noted deficiencies have been corrected. As part of these follow-up inspections, PHE will hold a short, informal out-brief at the end of each day to discuss any findings or other observations made, and present options for correction. PHE also recommends that DOC personnel perform additional inspections, as needed, based on the results of the PHE follow-up inspections, if deficiencies continue to be identified. EFFECTIVENESS EVALUATION The DOC will continue to check the temperature of personnel arriving onsite and require face masks for the foreseeable future. The DOC will also continue to perform voluntary testing of individuals onsite (both employees and inmates) every two weeks. As the year continues on, it is likely that additional waves or peaks may be observed throughout the region. DOC should closely monitor the number of persons onsite testing positive during these times to evaluate the effectiveness of all current procedures, including cleaning and disinfection. Changes should be made, as applicable and appropriate, to ensure that each facility is doing as much as possible to protect all personnel from the virus. Potomac-Hudson Engineering, Inc ah Page 10 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 57 of 232 Ex E Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 58 of 232 UP ONSITE AUDIT INSPECTION REPORT September 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14" Street NW, 7" Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302 Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 59 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of the protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can help prevent the spread of disease to DC DOC inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020 and conducted initial on-site observational inspections to verify compliance with the protocol on June 29 and July 1, 2020. Following these observational inspections, the disinfection protocol was revised, and a report was provided to DC DOC summarizing the inspections and recommending a number of corrective actions to improve work practices and procedures. An initial follow-up observational inspection was conducted on July 20, 2020 to verify implementation of the corrective action recommendations by the contractors who are conducting the disinfection, and a follow-up report was issued on July 23, 2020. On September 28, 2020, PHE conducted a second follow-up site visit to inspect the cleaning and disinfection process. This document provides a summary of PHE’s observations, findings, and recommendations. AUDIT OVERVIEW SCOPE Christopher Rua, CHMM and Gary Morris, CIH of PHE conducted the follow-up inspection of the DC DOC Central Detention Facility (CDF) and the Correctional Treatment Facility (CTF) on September 28, 2020. This report contains observations from this follow-up inspection, deficiencies and deviations from prescribed work practices and procedures, and corrective action recommendations. At the conclusion of the inspection, an Out-Brief Meeting was held to summarize observations, deficiencies, and corrective action recommendations from the follow up inspection. This meeting was attended by: e Mr. Lennard Johnson, Warden (DOC) e = 6Ms. Kathy Landerkin, Deputy Warden (DOC) e Ms. Jackie Smith, Site Safety Officer (DOC) e Ms. Gloria Roberts, Compliance and Review Officer (DOC) e Ms. Michele Jones, CTF Programs (DOC) e Mr. Christopher Rua (PHE) e = Mr. Gary Morris (PHE) Sanitizing and disinfection of the CDF is being conducted by G-SIDA General Services, LLC (G-SIDA) and by Spectrum Management, LLC (Spectrum) in the CTF. It should be noted that G-SIDA replaced Rock Solid Management Group, LLC as the contractor at the CDF on August 5, 2020. This was PHE’s first observation of this contractor. Potomac-Hudson Engineering, Inc. Page 1 qr Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 60 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report SUMMARY OF FINDINGS Table 1 contains a summary of the findings from this oversight inspection as well as the recommended corrective action contained. Positive observations from the follow-up inspection consist of the following: Some of the staff of both contractors did not wring out the rags after dipping in the bucket, increasing adequate coverage and contact time of surfaces (the rags were visibly soaked with the disinfectant). Staff of both contractors carried the dip buckets and mop buckets with them to the areas in which they were disinfecting, increasing the frequency of re-wetting of the rags and mops. Contractor staff periodically refilled the wipe buckets with the disinfectant and changed mop water and mop heads several times throughout the day. Fans positioned in the housing blocks are now turned off during sanitizing to help extend contact time. Mop and rag buckets are filled by DOC staff to ensure consistent filling practices. Bleach solutions are also mixed by DOC staff and filled in spray bottles to ensure proper bleach/water ratios in the spray bottles. Spectrum crew wet wiped surfaces in the CTF Visitor’s Entrance with the sanitizing solution and when dry, applied the solution a second time via a spray bottle and allowed the solution to air dry. In general, significant improvement was observed during this site visit compared to previous site visits. Potomac-Hudson Engineering, Inc. 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Code § 7-2304 . Issuance of emergency executive order; contents; actions of Mayor in response to the World Health Organization's ("WHO") declaration of the imminent threat and spread of SARS-CoV-2 (COVID-19) Coronavirus-19 as a world-wide Pandemic, the * Department hereby issues this Modification No. 03 extending services for a period of three (3) month beginning on December 1, 2020 and ending February 28, 2021. As a result of Item No. 01, of this Modification No. 03 for Comprehensive Hazardous Materials ("HAZMAT") Environmental Cleaning Services related to the . SARS-CoV-2 (COVID-19) Coronavirus-19 Pandemic for the Department of Corrections, Basic Services are hereby increased from $1,007,274.72 by $755,456.04 to $1,787,730.76. CONTRACT RECAP Basic Services shall not exceed $1,649,477.69 and Cost Reimbursement Services shall not exceed $25,000.00. The Total Not-To- Exceed Value for Emergency Contract is $1,787,730.76. The continuation of services beyond February 28, 2021 is subject to the availability of FY21 Appropriated budgets and extension of the emergency * executive order D.C. Code § 7 —2304. . All other Terms and Conditions of Contract DCAM-20-NC-EM-0079C remain unchanged. . RELEASE: It is mutually agreed that in exchange for this Modification and other consideration, the Contractor hereby releases, waives, settles, and holds the Department harmless from any and all actual or potential claims or demands for delays, disruptions, additional work, additional time, additional costs, contract extensions, compensation, or liability under any theory, whether known or unknown, that the Contractor may have now or in the future against the Department arising from or out of, as a consequences or result of, relating to or in any manner connected with this Modification, the above-referenced Services, and the work provided pursuant to the Agreement. fExcept as provided herein, all terms and conditions of the document referenced in Item (9A or 10A) remain unchanged and in full force and effect 15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer Genet Mersha (President/CEO) GEORGE G. LEWIS, CPPO Chief Procurement Officer, Chief of Contracts & Procurement G-Sida General Services 15B. Name of Contractor As LQ 15C. Date Signed |16B. District of Colyprtia } 16C. Date Signed 11/30/2020 11/30/2020 (Signature of person authorized to sign) George GSignatun’eZontracting Officer) Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 72 of 232 (Continuation) Contract Number Modification No. Page of Pages DCAM-20-NC-EM-0079C Mo3 2 2.00 1. Emergency Contract 05-August-2020 - 314-October-2020 a. Basic Services 228,780.00 b. Cost Reimbursement for Supplemental! Services 25,000.00 253,780.00 2. Correction to Monthly Cost 05-August-2020 - 31-October-2020 Modification No. 04 a. Delete in its entirety - Contract Ceiling listed in sections A and Section B.3.1 (253,780.00) b. Correction of Monthly cost ($251,818.68 3 months) plus $25K Cost Reimbursement 755,456.04 25,000.00 526,676.04 3. Increase Services 01-November-2020 thru 30-November-2020 Modification No. 02 a. Extended the Term of Services for one (1) Month - 1-NOV-2020 thru 30-NOV-2020 $ - b. Increase Basic Services from $755,456.04 by $251,818.68 to $1,007,274.72 $ 251,818.68 $251,818.68 4. Increase Services 01-December-2020 thru 28-February-2021 Modification No. 03 a. Extended the Term of Services for three (3) Month - 1-DEC-2020 thru 28-FEB-2021 $ - b. Increase Basic Services from $1,007,274.72 by $755,456.04 to $1,787,730.76 $ 755,456.04 $ 755,456.04 SARS-CoV-2 (COVID-19) EMERGENCY CONTRACT GRAND TOTAL $ 1,787 ,730.76 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 73 of 232 Ex H  Case-0-ey-00840-CKK_Doenmenichttas Filed +a/4aine— Page tof Aga Fi . cl e of Pag MODIFICATION OF CONTRACT DCAM20-NO-EM-0079B : 5 2. Modification Number 3. Effective Date 4. Requisition/Purchase Request No. §. Contract Caption Comprehensive Hazardous Materials (“HAZMAT”) Environmental Cleaning Services related to the SARS-CoV-2 (COVID-19) Mo4 See Block 16C TED Coronavirus-19 Pandemic for the Department of Corrections 6. Issued By: 7. Administered By (If other than line 6) Department of General Services Department of General Services Contracting and Procurement Division Facilities Division 2000 14th Street, 8th Floor 2000 14th Street NW, 8th Floor Washington, DC 20009 Washington, DC 20009 ATIN: Domonique L. Banks (202) 719-6544 domonique.banks@dc.gov| Attention: Ruth Jenkins PH: (202) 579-2624 EMAIL: _ruth.jenkins@dc.gov 8. Name and Address of Contractor (No. Street, city, country, state and ZIP Code) 9A. Amendment of Solicitation No. SPECTRUM MANAGEMENT, LLC 9B. Dated (See Item 11) 1229 Pennsylvania Avenue, S.E. Washington, D.C. 20003 410A. Modification of Contract/Order No. x DCAM-20-NC-EM-0079B 10B. Dated (See Item 13) ATTN: George Simpson (202) 546-2080 gtsimpson@smusa.us May 18, 2020 411. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS | _|The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offers L_|is extended. | lis not extended. Offers must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended, by one of the following methods: (a) By completing Items 8 and 15, and returning 1 copies of the amendment: (b) By acknowledging receipt of this amendment on each copy of the offer submitted; or (c) By separate letter or fax which includes a reference to the solicitation and amendment number. FAILURE OF YOUR ACKNOWLEDGEMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by letter or fax, provided each letter or telegram makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified. 12. Accounting and Appropriation Data (lf Required) 13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS, IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14 A. This change order is issued pursuant to: (Specify Authority) The changes set forth in Item 14 are made in the contract/order no. in item 10A. B. The above numbered contract/order is modified to reflect the administrative changes (such as changes in paying office, appropriation date, etc.) set forth in item 14. C. This supplemental agreement is entered into pursuant to authority of: x D. Other (Specify type of modification and authority) Contract DCAM-20-NC-EM-0079B and Title 27 DCMR Sections 4727 E. IMPORTANT: Contractor | lis not, | lis required to sign this document and return 4 copy to the issuing office. 14. Description of modification (Organized by UCF Section headings, including solicitation/contract subject matter where feasible.) -ON.NC. . Comprehensive Hazardous Materials (“HAZMAT”) Environmental Cleaning Services related to the . e . Contract No. DCAM-20-NC-EM-00798 SARS-CoV-2 (COVID-19) Coronavirus-19 Pandemic for the Department of Corrections is hereby modified as follows: As a result of, and pursuant to, D.C. Code § 7-2304 . Issuance of emergency executive order; contents; actions of Mayor in response to the World Health 1. Organization's ("WHO") declaration of the imminent threat and spread of SARS-CoV-2 (COVID-19) Coronavirus-19 as a world-wide Pandemic, the Department hereby issues this Modification No. 04 extending services for a period of three (3) month beginning on December 1, 2020 and ending February 28, 2021. As a result of Item No. 01, of this Modification No. 04 for Comprehensive Hazardous Materials (“HAZMAT”) Environmental Cleaning Services related to the SARS+ 2. CoV-2 (COVID-19) Coronavirus-19 Pandemic for the Department of Corrections, Basic Services are hereby increased from $1,649,477.69 by $765,221.61 to $2,444,699.30. CONTRACT RECAP Basic Services shall not exceed $1,649,477.69 and Cost Reimbursement Services shall not exceed $30,000.00. The Total Not-To- * Exceed Value for Emergency Contract is $2,444,699.30. 4 The continuation of services beyond February 28, 2021 is subject to the availability of FY21 Appropriated budgets and extension of the emergency executive " order D.C. Code § 7-2304 . 5. All other Terms and Conditions of Contract DCAM-20-NC-EM-0079B remain unchanged. 6. RELEASE: It is mutually agreed that in exchange for this Modification and other consideration, the Contractor hereby releases, waives, settles, and holds the Department harmless from any and all actual or potential claims or demands for delays, disruptions, additional work, additional time, additional costs, contract extensions, compensation, or liability under any theory, whether known or unknown, that the Contractor may have now or in the future against the Department arising from or out of, as a consequences or result of, relating to or in any manner connected with this Modification, the above-referenced Services, and the work provided pursuant to the Agreement. Except as provided herein, all terms and conditions of the document referenced in Item (9A or 10A) remain unchanged and in full force and effect 15A. Name and Title of Signer (Type or print) 16A. Name of Contracting Officer GEORGE G. LEWIS, CPPO Kaneedreck Adams, COO Chief Procurervent Officer, Chief of Contracts & Procurement 15B. Name of Contractor 15C. Date Signed |16B. Districtt Columbia 16C. Date Signed Karthik Ad a 11/30/2020 A 4 (Signature of person authorized to sign) George G. Lewis. (Gigrature of Contracting Officer) 11/30/2020 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 75 of 232 (Continuation) Contract Number Modification No. Page of Pages DCAM-20-NC-EM-0079B M04 2 2 1. Emergency Contract 18-May-2020 thru 16-August-2020 . Basic Services $ 765,221.61 . Cost Reimbursement for Supplemental Services _5 25,000.00 _$ 790,221.61 2. Increase Services 17-August-2020 thru 24-August-2020 Modification No. 01 Increase Basic Services from $765,221.61 by $45,512.31 to $832,733.92 $ 42,512.31 $ 42,512.31 3. Increase Services 24-August-2020 thru 31-October-2020 Modification No. 02 . Increase Basic Services from $832,733.92 by $586,669.90 to $1,394,403.82 $ 586,669.90 . Increase Supplemental Service Ceiling from $25K by $5K to $30K $ 5,000.00 $ 591,669.90 4. Increase Services 01-November-2020 thru 30-November-2020 Modification No. 03 . Extended the Term of Services for one (1) Month - 1-NOV-2020 thru 30-NOV-2020 $ - Increase Basic Services from $1,394,403.82 by $255,073.87 to $1,679,477.69 $ 255,073.87 $ 255,073.87 5. Increase Services 01-December-2020 thru 28-February-2021 Modification No. 04 . Extended the Term of Services for three (3) Month - 1-DEC-2020 thru 30-FEB-2021 $ - Increase Basic Services from $1,679,477.69 by $765,221.61 to $2,444,699.30 $ 765,221.61 $ 765,221.61 EMERGENCY CONTRACT GRAND TOTAL $ 2,444,699.30 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 76 of 232 Ex I Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 77 of 232 From: Lewis, George (DGS) Sent: Monday, November 23, 2020 9:59 AM To: Stewart-Ponder, Gitana (DOC) Cc: Fuller, Yohance (DGS) ; Gonzalez, Donny (DGS) ; Meadors, Danielle (DGS) ; Holt, Kasmin (DGS) ; Ha on, Tim (DGS) ; Gray, Kim M. (DGS) ; Robertson, Gloria (DOC) ; Ponder, Gizele (DOC) ; Ford Dickerson, Pamela (DGS) Subject: RE: DOC Cleaning Contracts Renewal Good morning Gitana. As discussed we will extend the Contract to February 2021 and will work with our Budget Team to ensure funding is secured to ensure compliance with the Court Order. Kim, let’s extend both contracts to February 2021 and work with our team for incremental funding. We should review in January to ensure that Court Order is sll valid and if so we may need to prepare acompev e solicitaon inJanuar y if we must connue the c ontract beyond February 2021. Thanks all. George G. Lewis, CPPO Chief, Contracts and Procurement Chief Procurement Officer Department of General Services 2000 14" st N.W Washington, DC 20009 Office (202) 478-5727 Cell (202) 430-9967 DG 5 BUILD = pote SUSTAIN G@O9 1M Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 78 of 232 Ex 1/4/ZU2ZU Favorites ~ Main Menu ~ Job Description Job Title Job ID Date Opened Date Closed Location Full/Part Time Regular/Temporary Agency Area of Consideration Grade Bargaining Unit Minimum Range Target Openings Return to Previous Page General Job Information Recruiting ~ >» Search Job Openings Home Worklist Welcome Lurendy W Armstrong (00009045). Sanitation Inspection Specialist Detention Facility Type of Appointment Career Service - Reg Appt Department of Corrections Open to Public Non Union - Chapter 11 $76,126.000000 Maximum $97,375.000000 Range Available Openings 1 Switch to Internal View JOB SUMMARY This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmental safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the COF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists in the development of funding and resource Proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Callabnrates with the Facilitiac Maintenance mananer ranacdinn renaire haced an echediula visite haveing inite ta httne-Jinchem de anuinenihemnrd/EMPLOVEFIHRMS/cIHRS HRPM HRS IN FINA INR BRI OFnlderPath=PORTAI Case 1:20-cv-00849-CKK Document°£38!2° FAf8912/12/20 Page 79 of 232 ROOT ORIECTHC RECRII Add to Favorites Sign Out 4119 ea Case 1:20-cv-00849-CKK Document*f38!2° PAfeGP12/12/20 Page 80 of 232 MUNSHI Te CCHS HIGH RUNUNUG IEEE Ye! HOON FUpUne, YHBCU Un SUNCUUIE, Hone Huo Une Ww conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. QUALIFICATIONS AND EDUCATION. Applicants must have at least one (1) year of specialized experience. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKING CONDITIONS Work is performed both in an office and correctional institutional facility environment. oO Cc AC Tour of Duty: 7:30 a.m.- 4:30p.m. Must be flexible to varying work hours. Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: The incumbent of this position will be subject to enhanced suitability screening pursuant to Chapter 4 of the DC Personnel Regulations Suitability-Safety Sensitive. This position requires a background check and drug screening; therefore, you may be required to provide information about your criminal history and pass a drug screening in order to be appointed to this position. A TB Test will be required prior to entry on duty. If the position you are applying for is in the Career, Management Supervisor, or Educational Service at an annual salary of one hundred fifty thousand dollars ($150,000) or more, you must establish residency in the District of Columbia within one hundred eighty (180) days of the effective date of the appointment and continue to maintain residency within the District of Columbia throughout the duration of appointment. EEO Statement The District of Columbia Government is an Equal Opportunity Employer. Ali qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to Internal View httnc-/inchem de navinenihemnrdA/EMPLOVEF/HRMS/r/HRS HRPMHRS ID FINN INR GRI 2FnidarPath=POARTAL ROOT ORIFCTHC RECRIII 39 1W/4/ZUZU Favorites » Main Menu ~ Job Description Recruiting» > Search Job Openings > Manage Job Opening Home Welcome Lurendy W Armstrong (00009045). Job Title Sanitation Inspection Specialist JobID 10793 Date Opened 06/17/2020 Date Closed 06/26/2020 Location Detention Facility Full/Part Time Full-Time Type of Appointment Career Service - Reg Appt Regular/Temporary Regular Agency FL Department of Corrections Area of Consideration Grade Bargaining Unit Minimum Range Target Openings Return to Previous Page General Job Information JOB SUMMARY Open to Public 12 CH11 Non Union - Chapter 11 $76,126.000000 Range 1 Available Openings 1 Switch to Internal View Maximum $97,375.000000 This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on Worklist supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmental safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental! issues and key initiatives; and assists in the development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually, collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Coallahnratas with the Facilities Maintanance mananer ranardinn ranairs hased nn schadila visite hnansinn iinite ta htine:dinchem de anvinenihemoard/FEMPL OVEF/HRMS/cr/HRS HRPM HRS IN FIND INR GRI 9FalderPath=PORTAI Case 1:20-cv-00849-CKK Document?£38-2° RERPSL2/12/20 Page 81 of 232 Add to Favorites RNOAT ORIFCTHC RECRII Sign Out 1/9 rategey Case 1:20-cv-00849-CKK Document?£38-2° PARBEPSL2/12/20 Page 82 of 232 PHU CLS ETE HF GUIIGO MIEN IUe INUYUL EYE UY FUP), VEBU Ur GURUS, Hone Huo UTM 1 conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock contro! modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. QUALIFICATIONS AND EDUCATION Applicants must have at least one (1) year of specialized experience equivalent to the next lower grade level. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKING CONDITIONS Work is performed both in an office and correctional institutional facility environment. OTHER SIGNIFICANT FACTS Tour of Duty: 7:30 a.m.- 4:30 p.m. Must be flexible to varying work hours. Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: “This position is designated as a Safety Sensitive position and is subject to mandatory pre- employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.” A TB Test will be required prior to entry on duty. If the position you are applying for is in the Career, Management Supervisor, or Educational Service at an annual salary of one hundred fifty thousand dollars ($150,000) or more, you must establish residency in the District of Columbia within one hundred eighty (180) days of the effective date of the appointment and continue to maintain residency within the District of Columbia throughout the duration of appointment. EEO Statement The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to Internal View httne:-/inchem de nnvinenihemnrdA/EMPLOVEFIHRMSIce/HRS HRPM HRS IN FIND INR GRI?FaldarPath=PNRTAl RANT ORIECTHC RECRIII WW? ViH4/12ZuZdu Favorites v Main Menu ~ Job Description Job Title Job ID Date Opened Date Closed Location Full/Part Time Regular/Temporary Agency Area of Consideration Grade Bargaining Unit Recruiting» > Search Job Openings Manage Job Opening Home Worklist Welcome Lurendy W Armstrong (00009045). Sanitation Inspection Specialist 10853 07/07/2020 07/16/2020 Detention Facility Full-Time Type of Appointment Regular FL Department of Corrections Open to Public 12 CH11 Non Union - Chapter 11 Career Service - Reg Appt Minimum Range $76,126.000000 ee $97,375.000000 ange Target Openings 1 Available Openings 1 Return to Previous Page Switch to Internal View General Job Information JOB SUMMARY This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmental safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists in the development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal! and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Collahnratas with the Facilitias Maintananre mananer ranardinn ranaire hacsed an echediile visite hnausine inite to httne:/inchem de anuinen/bhemnrd/EMPLOVEF/IHRMSIc/HRS HRPM HRS 10 FIND INR BRI 2FaldarPath=PORTA! Case 1:20-cv-00849-CKK DocumentP$38t 2° FHReCBL2/12/20 Page 83 of 232 Add to Favorites RANT ORIEFCTHC RECRIII Sign Out 119 Par 2029 Case 1:20-cv-00849-CKK Document®£38!2° PAPBEPL2/12/20 Page 84 of 232 PHU UL ES FREI) GIO BIGHONE TUG (NOH YuL TEYGI Ui HUpan a, VEU Gi ouneUE, een UU Ue 1 conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. Must have experience working in a correctional facility. QUALIFICATIONS AND EDUCATION Applicants must have at least one (1) year of specialized experience equivalent to the next lower grade level. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKING CONDITIONS Work is performed both in an office and correctional institutional facility environment. OTHER SIGNIFICANT FACTS Tour of Duty: 7:30 a.m.- 4:30 p.m. Must be flexible to varying work hours. Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: “This position is designated as a Safety Sensitive position and is subject to mandatory pre- employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.” A TB Test will be required prior to entry on duty. If the position you are applying for is in the Career, Management Supervisor, or Educational Service at an annual salary of one hundred fifty thousand dollars ($150,000) or more, you must establish residency in the District of Columbia within one hundred eighty (180) days of the effective date of the appointment and continue to maintain residency within the District of Columbia throughout the duration of appointment. tat t The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to Internal View httne-Jinchem dr anvinen/hemnrd/EMPLOVEFIMHRMS/r/HRS HRPM HRS IN FIND INR GRI 2FaAldarPath=PNRTAL ROOT ORIECTHC RECRIII ii) ral eae Case 1:20-cv-00849-CKK Document?£38-2° PARBRP12/12/20 Page 85 of 232 Favorites v Main Menu ~ Recruiting ~ > Search Job Openings > Manage Job Opening Home Worklist Welcome Lurendy W Armstrong (00009045). Job Description Job Title Sanitation Inspection Specialist JobID 11022 Date Opened 07/31/2020 Date Closed 09/13/2020 Location Detention Facility Full/Part Time Full-Time Type of Appointment Career Service - Reg Appt Regular/Temporary Regular Agency FL Department of Corrections Area of Consideration Open to Public Grade 12 Bargaining Unit CH11 Non Union - Chapter 11 Minimum Range $76,126.000000 Maximum $97,375.000000 ange Target Openings 1 Available Openings 1 Switch to Internal View Return to Previous Page General Job information JOB SUMMARY This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmenta! safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists in the development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Callahnrateas with the Facilitiac Maintanance mananer ranardinn ranaire hacead an echadiila visite hanecinn tinite tn httne-dinchem de anvineninemnrd/EMPLOVEF/IHRMSI/r/HRS HRPMHRS 10 FIND INR GRI 2FaldarPath=PORTA! ROOT ORIFCTHO RFECRII Add to Favorites Sign Out 119 ruareney Case 1:20-cv-00849-CKK Document?£38-?° FAFBEPL2/12/20 Page 86 of 232 MIE EIUS FRU Ue) GMNUUS MEETUNGIEU MeneyoD Tuya ui Hope, BaECU UI GUUS, HONE Huo Ay UTM Ww conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. Must have experience working in a correctional facility. QUALIFICATIONS AND EDUCATION Applicants must have at least one (1) year of specialized experience equivalent to the next lower grade level. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKIN NDITIONS Work is performed both in an office and correctional institutional facility environment. OTHER SIGNIFICANT FACTS Tour of Duty: 7:30.a.m.- 4:30 p.m. Must be flexible to varying work hours. First Screening Date: 08/17/2020 Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: “This position is designated as a Safety Sensitive position and is subject to mandatory pre- employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.” A TB Test will be required prior to entry on duty. If the position you are applying for is in the Career, Management Supervisor, or Educational Service at an annual salary of one hundred fifty thousand dollars ($150,000) or more, you must establish residency in the District of Columbia within one hundred eighty (180) days of the effective date of the appointment and continue to maintain residency within the District of Columbia throughout the duration of appointment. EEO Statement The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to Internal View hitne Jinchem de anuinenihemord/EMPLOVEF/HRMS/ci/HRS HRPM HRS IN FINN JOR GRI ?FalderPath=PNRTAL ROOT ORIFCTHC RECRIII oD? ee Case 1:20-cv-00849-CKK Document?£3&?° FARBEPL2/12/20 Page 87 of 232 Favorites ~ Main Menu + Employee Self Service Search Job Openings Manage Job Opening Home Worklist Add to Favorites Sign Out Welcome Lurendy W Armstrong (00009045). Job Description Job Title Sanitation Inspection Specialist JobID 11318 Date Opened 09/18/2020 Date Closed 09/22/2020 Location Detention Facility Full/Part Time Full-Time Type of Appointment Career Service - Reg Appt Regular/Temporary Regular Agency FL Department of Corrections Area of Consideration Open to Public Grade 12 Bargaining Unit CH11 Non Union - Chapter 11 Minimum Range $76,126.000000 Maximum $97,375.000000 Range Target Openings 1 Available Openings 1 Return to Previous Page Switch to Internal View General Job Information JOB SUMMARY This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmental safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists in the development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the contro! bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Collahnrates with the Facilities Maintananre mananer ranardinn ranaire based an echadiila visite honicinn sinite ta httne-Hnehem de navinenihemnard/EMPILOVEFIHRMSIc/HRS HRPM HRS IO FIND 10R GRI 41/9 rareges Case 1:20-cv-00849-CKK Document*£38-2° FAPBEPL2/12/20 Page 88 of 232 MVHS FRU) QUIGS HILO HO Fear FOUN UI PU Pai a, VEOUU Un SuneUME, Hone Huuon I UNO 1 conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. Must have experience working in a correctional facility. QUALIFICATI DED oO Applicants must have at least one (1) year of specialized experience equivalent to the next lower grade level. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKING CONDITIONS Work is performed both in an office and correctional institutional facility environment. OTHER SIGNIFICANT FACTS Tour of Duty: 7:30 a.m.- 4:30 p.m. Must be flexible to varying work hours. Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: “This position is designated as a Safety Sensitive position and is subject to mandatory pre- employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.” A TB Test will be required prior to entry on duty. EEO Statement The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to Internal View httne-Jineham de anvinen/hemnrd/EMPILOVEFIHRMS/c/HRS HRPM HRS IN FINN INR GRI RD 1/4iZuZu Favorites ~ Main Menu ~ Job Description Job Title Job ID Date Opened Date Closed Location Full/Part Time Regular/Temporary Agency Area of Consideration Grade Bargaining Unit Minimum Range Target Openings Return to Previous Page General Job Information JOB SUMMARY Recruiting» > Search Job Openings > Manage Job Opening Home Worklist Welcome Lurendy W Armstrong (00009045). Sanitation Inspection Specialist Detention Facility Type of Appointment Career Service - Reg Appt Department of Corrections Open to Public Non Union - Chapter 11 $76,126.000000 Maximum —$97,375.000000 Range Available Openings 1 Switch to External View This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is on supporting activities related to staffs, inmates, and visitors’ health and well-being. The Environmental Safety and Sanitation Inspection Specialist (ESS) provides environmental safety and sanitation oversight for the CDF and CTF and ensures that the housing units common areas are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. DUTIES AND RESPONSIBILITIES Plans, designs, develops and coordinates correctional environmental safety and sanitation initiatives; and serves in a key supporting role for the implementation of departmental initiatives focusing on core correctional needs and support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Incumbent ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; oversees and coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists in the development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector in the course of working out administrative systems and procedures that are inherent in attaining the goals. Oversees and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Oversees sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized in the proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the ESS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. Coallahnratas with the Facilitias Maintenance mananer renarding ranaire haced an echediula visite hoancinn unite ta httne-/inchem de aavinenthemnard/EMPLOVEF/HRMG/c/HRS HRPM HRS IN FINN INR GRI PFatdarPath=PORTAI Case 1:20-cv-00849-CKK Document°f38!2° FAfeWP12/12/20 Page 89 of 232 ROOT ARIFCTHC RECRII Add to Favorites Sign Out 1/9 tees Case 1:20-cv-00849-CKK Documentf38-2° Faf@tP12/12/20 Page 90 of 232 MUNG WUI Ee FE UIE GENIC HIGHUHUNEG TanHUyer heyuruiiy bepate, WHOCU Ui sUneuUIE, vlons HuUOIY Une Ww conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the ESS and appropriate DOC manager official. The ESS follows up on the CAP to ensure adequate corrective action is taken in a timely manner. Evaluates performance management for operational efficiency and support services for effectiveness: and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignment Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fire and Emergency Management and other independent consultants. Must have experience working in a correctional facility. QUALIFICATIONS AND EDUCATION Applicants must have at least one (1) year of specialized experience equivalent to the next lower grade level. Specialized experience is experience which is in or directly related to the line of work of the position and has equipped the applicant with the particular knowledge, skills and abilities to successfully perform the duties of the position. LICENSE AND CERTIFICATION None WORKING CONDITIONS Work is performed both in an office and correctional institutional facility environment. OTHER SIGNIFICANT FACTS Tour of Duty: 7:30. a.m.- 4:30 p.m. Must be flexible to varying work hours. Collective Bargaining: This position is not in Collective Bargaining Duration of Appointment: Career Service Appointment Position Designation: “This position is designated as a Safety Sensitive position and is subject to mandatory pre- employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.” A TB Test will be required prior to entry on duty. EEO Statement The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color religion, national orgin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Return to Previous Page Switch to External View hitne-finehem de novdnenihemnrd/EMPL OVEFIHRMS/c/HRS HRPMHRS IN FIND INR GRI 2FaldarPath=PARTAI ROOT ORIFECTHC RECRII 219 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 91 of 232 Ex Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 92 of 232 NEHA Registered Environmental Health Specialist/ Registered Sanitarian (REHS/ RS®) \ zz ZZ “ SALTH AssocweN™ Revised 10/26/2018 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 93 of 232 REHS/ RS® Examination Eligibility Requirements To be eligible to sit for the REHS/RS® credential examination, a candidate must meet all of the criteria for Track A or Track B or Track C. Track A— Environmental Health Degree Track. You must be able to answer YES to all the questions for Track A. If you answer a question with a “No,” proceed to Track B. 1. Do you have a Bachelor’s degree, Master’s degree or PhD from a college or university in the United States? Yes No . For foreign degrees and diplomas, see the section below on foreign education. 2. Is your degree in Environmental Health? Yes No 3. Is your school and degree program on the appropriate EHAC list below? Yes No a. Bachelor’s in Environmental Health: http://www.nehspac.org/about- ehac/accredited-programs-ehac-undergraduate-programs/ b. Master’s or PhD in Environmental Health: http://www.nehspac.org/about- ehac/accredited-programs-ehac-graduate-programs/ If you answered “Yes” to all three questions above, you can apply on Track A. You will not need to submit proof of work experience. Track B — Bachelor’s Degree Track. You must be able to answer YES to all questions for Track B. If you answer a question with a “No,” proceed to Track C. 1. Do you have a Bachelor’s degree, Master’s degree or PhD from a college or university accredited in the United States? Your degree can be in any subject. Yes No . For foreign degrees or diplomas, see the section below on foreign education. 2. Do you have 30 semester hours (or 45 quarter hours) of college credit in basic science coursework? Basic sciences include Life Sciences, Natural Sciences, Physical Sciences or Health Sciences. Yes No 3. Do you have credit for a college level Math or Statistics class? Yes No 4. Do you have two years or more experience working in environmental health* ? Work experience should be full-time paid work. Yes No * Eligible areas of environmental health include general environmental health (including inspections, environmental microbiology, and contamination control), food protection, wastewater, solid and hazardous waste, potable water, insoections of facilities, vectors and pests, institutions and licensed establishments, swimming pool inspections, radiation, occupational safety and health, healthy housing, indoor air quality, disaster and emergency planning, and environmental health issues related to climate change. Track C —- “In Training” Track. On Track B above, if you said YES to questions 1, 2, and 3 but you do NOT have two years of work experience in environmental health, you NEHA REHS/RS® Candidate Information Brochure 1 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 94 of 232 can apply on the “In Training” Track. You would choose REHS/RS®-In Training (I.T.) on the application. You will not be required to submit proof of work experience. If you pass the exam, your certificate will say, “REHS/RS® — In Training.” You will then have 3 years to obtain 2 years of work experience. Once you have acquired that experience, you can qualify for the full REHS/RS® certificate by notifying NEHA and submitting proof of work experience. If you do not obtain the 2 years of work experience, your “In Training” status will expire and you risk losing the credential and may have to reapply and retake the exam. On Track B above, if you said NO to question 1 (and you do not have a foreign degree either) OA said NO to question 2 (science hours) OA question 3 (math class), then your education does not meet the requirements for the REHS/RS® credential set by the NEHA Board of Directors. The Board of Directors has ruled that NEHA cannot accept work experience in lieu of college coursework. If you are not sure about whether your college courses meet the requirements, you can request a transcript review as noted below. Transcript Review for United States College Transcripts Candidates with education from within the United States can request NEHA to review their transcripts for eligibility separate from the application procedure for $50. A transcript review form must be completed and is available at http://neha.org/sites/default/files/ Transcript-Review.pdf. Please see additional instructions on the form. The $50 fee is non-refundable even if NEHA finds that your education does not meet the REHS/RS® qualification requirements. It can take 2-4 weeks for your transcripts to be reviewed and you will be notified by letter and/or e-mail. Foreign Education If you have college or university education from outside the United States or its territories, you must have your foreign education evaluated by a “third party” foreign education evaluation service to determine equivalency to a Bachelor’s degree in the United States. You must submit an evaluation report with your NEHA Credential Application or the report can be sent by the evaluation service directly to NEHA. NEHA cannot evaluate foreign educational documents even if they have been translated into English. All foreign transcripts must be evaluated by foreign education specialists. NEHA strongly recommends you choose a service that is a member of the National Association of Credential Evaluation Services (NACES). For information on NACES member companies, go to www.naces.org. Canadian education is considered foreign education. It must be evaluated by a third party evaluation service. NEHA REHS/RS® Candidate Information Brochure 2 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 95 of 232 Completing the Application Applications must be completed and submitted to NEHA for review at least 6 weeks prior to the exam date. If an application is received less than 6 weeks prior to your planned exam date, you may have to schedule the exam for another date. A complete application should include: 1. Completed NEHA Application. 2. Official College Transcripts. To be considered an official transcript it should be received at the NEHA office in the sealed envelope from the College Registrar's Office/Transcript Office. It can be sent directly from the school to NEHA or submitted with the application in the sealed school envelope. Electronic transcripts from the school or transcript service are accepted when e-mailed to credentialing@neha.org. 3. Work Experience Verification Form signed by a third party. 4. Appropriate fees. 5. Third party review report (applicable for candidates with foreign education). Application Expiration Policy Applications are good for 2 years from the date NEHA received them. If you have not tested within 2 years of applying, you will need to submit a new application and fees. Exam Fees All fees should accompany the NEHA Application. Member Rate Non-Member Rate Application fees: $95.00 $130.00 Examination fees: $185.00 $335.00 Pearson VUE fee (if applicable): $110.00 $110.00 Exam Scheduling and Locations Candidates can choose to schedule the REHS/RS® examination in several different ways: 1. The REHS/RS® exam is offered annually at the NEHA Annual Educational Conference (AEC) & Exhibition. See neha.org for AEC information. 2. Candidates can choose to take the exam on computer through Pearson VUE. By choosing this option candidates can schedule the examination at their convenience at one of Pearson VUE's testing locations nationwide. To find a Pearson VUE testing center near you please visit http://www. pearsonvue.com/neha. Taking the exam at Pearson VUE not only offers the candidate flexibility in scheduling the exam, but also allows the candidate to receive his/her unofficial scores immediately following the conclusion of the exam. NEHA REHS/RS® Candidate Information Brochure 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 96 of 232 3. Special test sites may be arranged through NEHA. Must have a minimum of 3 NEHA credential testing candidates. In order to accommodate requests for special test sites, arrangements must be made a minimum of 6-8 weeks prior to the requested date. The fee to set up a special test site is $350.00. For groups of 10 or more exam candidates, the special test site fee is waived. Credential applications are due 6 weeks before the test date. Please complete the Special Test Site Request form (Appendix A) and return it to NEHA with your application. Special Accommodations for Candidates with Disabilities or |mpairments NEHA is committed to ensuring that no individual is deprived of the opportunity to take a credentialing examination solely by reason of a disability or impairment. All test centers are fully accessible and compliant with the American with Disabilities Act (ADA). To make a request for special accommodations you must complete the ADA Accommodation Request Form including the specific diagnosis of your disability, Section 2 filled out and signed by an appropriate licensed professional, and the type of accommodation being requested. All forms and documentation must be returned to NEHA at least 8 weeks prior to the scheduled test date. To receive a copy of the form please contact Credentialing@neha.org. lf the forms are not returned to NEHA at least 8 weeks prior to the scheduled test date, your request for special accommodations may not be honored or may be delayed. With respect to all matters related to testing accommodations, NEHA will only communicate with the candidate, professionals knowledgeable about the candidate’s disability or impairment, the candidate’s authorized representative (if applicable), Professional Testing Inc. (PTI) and the test administrator or proctor. Computer Testing at Pearson VUE: NEHA will send you an authorization letter via e- mail when your application is processed as approved. Then you will get another e-mail, 1-3 days later, from Pearson VUE c/o PTI. That e-mail will have your PT| ID number and instructions on how to schedule the exam at Pearson VUE. The PTI ID number is good for one year. On test day you must bring your photo ID as required by Pearson VUE’s instructions. If you need to postpone your scheduled computer test, you must contact Pearson VUE at least 24 hours in advance of your scheduled test time. If you do not show up and did not give at least 24 hours’ notice, you will forfeit your Exam Fee and your Computer Test Fee. Contact NEHA to pay your fees again so you can be authorized to reschedule. Taking a Paper and Pencil Exam, Admission Letter: If you are taking the exam on paper (not computer), NEHA will send an admission letter approximately 2 weeks prior to your test date. The admission letter will detail the exam date and location, reporting time, and starting time. Those that do not appear on the date of the exam at the appropriate time will forfeit all exam fees. Persons arriving after the examination has started may not be admitted. NEHA REHS/RS® Candidate Information Brochure 4 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 97 of 232 If you lost your admission letter or have not received an admission letter at least 2 days prior to the test date, please contact NEHA. Only approved candidates will be admitted to the exam. No walk-in applicants will be admitted. On test day please bring with you your admission letter, photo identification (i.e. driver’s license or passport), and sharpened # 2 pencils. Scores The NEHA REHS/RS® examination will report scores using scaled scores that range from 0 to 900 with a passing score of 650. The raw passing score is mathematically transformed so that the passing scaled score equals 650. This process is similar to the way one adjusts Celsius and Fahrenheit temperature scales. While the values may differ the temperatures are the same. For example, water boils at the same temperature regardless of the scale used. Candidates who pass the examination will earn scaled scores of 650 and above, and those who fail will earn a scaled score between 0 and 649. A scaled score is NOT a percentage score. In summary, a scaled score is merely a transformation of a raw score. Scaling is done to report comparable results when forms and raw passing scores vary over time. This is similar to the SAT scores for entrance to college. Your score will be based on the number of questions answered correctly. If you are unsure of the answer it is better to guess. You will not be given credit for any question left blank. Your exam results will be mailed to you from the NEHA office 4-6 weeks after the administration. If you pass the exam, NEHA will send you a credentialing packet with a score letter, certificate, wallet card and Continuing Education information. lf you fail the exam, NEHA will send you a score letter and a Retake Application. You must wait at least 90 days from your test date before you can retake the exam. To retake the exam, you need to submit the Retake Application and pay the Exam Fee and Computer Test Fee, if you will retake the exam on computer. You do not need to do the whole application again or resubmit transcripts. There is no limit on the number of times you can retake the exam, but you must wait 90 days between each attempt. Reciprocity In some cases, if you hold a state REHS/RS® credential, you may be eligible to receive NEHA’s REHS/RS® credential without re-examination (reciprocity). In order to be eligible for reciprocity you must: 1. Have a valid, current state registration; and NEHA REHS/RS® Candidate Information Brochure 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 98 of 232 2. Have a Bachelor’s degree with 30 semester/45 quarter hours in basic sciences; and 3. Have a passing score of: a. 650 or higher on the NEHA exam taken on or after July 13, 2014, or b. 68% or higher on the NEHA exam taken between January 1, 1998, and July 12, 2014, or c. 70% or higher on the PES exam provided it was taken before December 31, 1997. PES exams taken after this date are not eligible to receive national REHS/RS® reciprocity through NEHA. For more information on qualifying for national REHS/RS® reciprocity please contact the NEHA Credentialing Department at (303) 756-9090 ext. 310, or email credentialing@neha.org. Credential Maintenance Once you have obtained the REHS/RS® credential you must maintain it. To keep your credential in good standing you must: 1. Submit a minimum of 24 hours of continuing education every two years; and 2. Submit renewal fees for your credential every two years ($130.00 members; $345.00 non-members). NEHA’s Credentialing Handbook It is strongly recommended that you read NEHA’s Credentialing Handbook: Guide to Policies and Procedures for NEHA’s Credentialing Programs. This handbook outlines all the policies you are expected to follow by being a NEHA credential holder. The handbook also outlines in further detail the procedures for applying for a credential, submitting continuing education, and maintaining your credential. You can access the Credentialing Handbook at www.neha.org. Click on Professional Development, then click on Credentials and look for the link to the Handbook on the left side. NEHA REHS/RS® Candidate Information Brochure Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 99 of 232 Exam Description and Content Outline The REHS/RS® examination consists of a total of 250 multiple-choice questions. The exam is split into two parts of 125 questions each. Candidates are given a total of four (4) hours to complete the entire exam or two (2) hours for each part with a short 10- minute break in between. Of the 250 items, 225 will be scored. The remaining 25 questions will be unscored, pilot questions. Those items will not be called out within the exam. Below is an outline of the different content areas the examination covers and the percentages allotted to each of those areas. Please use this outline as a guide when preparing for the examination. Content Areas Final Weight Noun ses of Items A Conducting Facility Inspections 35.0% 79 1 Prioritize Inspections 1.0% 2 2 Maintain Inspection Equipment 1.0% 2 3 Perform Food Facility Inspections 17.5% 40 4 Perform Institution Inspections 2.0% 5 5 Perform Recreational Water Inspections 2.5% 6 6 Perform Group Gathering Inspections 2.0% 4 7 Perform Healthy Homes Inspections 2.0% 4 8 Perform Hazardous Waste Inspections 1.0% 2 9 Perform Bio-Medical Facility Inspections 1.0% 2 10 Perform Confined Feeding Operations Inspections 1.0% 2 11 Perform Other Facility Inspections 2.0% 5 12 Perform Solid Waste Facility Inspections 2.0% 5 B Conducting System Inspections 20.0% 45 1 Perform Occupational Health and Safety Inspections 2.0% 5 2 Perform Onsite Waste Water System Inspections 12.0% 27 3 Perform Potable Water Quality Inspections 6.0% 13 C Conducting Investigations 14.0% 32 1 Perform Complaint Investigations 5.0% 11 2 Perform Epidemiology Investigations 4.0% 9 3 Investigate Illegal Operators 2.0% 4 4 Perform Hazardous Waste Investigations 1.5% 3 5 Perform Indoor Air Quality Investigations 2.0% 5 D Ensuring Compliance 13.0% 29 1 Develop Regulations 1.0% 2 2 Conduct Plan Review 5.0% 11 3 Review Establishment's HACCP Plan 2.0% 5 4 Provide Technical Assistance to Stakeholders 5.0% 11 E Promoting Environmental Public Health Awareness 10.0% 22 1 Conduct Environmental Public Health Assessment 1.0% 2 2 Establish Community Partnerships 1.0% 2 3 Conduct Community Outreach 2.0% 4 4 Communicate Environmental Public Health Risks to Stakeholders 3.0% 7 NEHA REHS/RS® Candidate Information Brochure 7 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 100 of 232 Conduct Environmental Surveillance 5 3.0% 7 F Responding To Emergencies 8.0% 18 1 Assess Community Risks 1.5% 3 2 Create Environmental Public Health Emergency Preparedness Plans 2.0% 5 3 Conduct Emergency Preparedness Training 1.0% 2 Implement Environmental Public Health Emergency Preparedness 4 2.0% 5 Plan 5 Conduct Recovery Follow-up 1.5% 3 Total 100.0% 225 NEHA REHS/RS® Candidate Information Brochure Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 101 of 232 Recommended Study References Below is a list of study references that are recommended to assist the candidate in preparing for the REHS/RS® examination. Many study references are available for purchase at the NEHA Bookstore. A REHS/RS® Study Guide is has been updated and is available for purchase here: REHS/ RS® Study Guide Individual References 1. 10. 11. 12. 13. 14. 15. REHS/ RS® Study Guide (Fourth Edition), 2014, NEHA Handbook of Environmental Health, Volumes 1 and 2 (Fourth Edition), 2003, H. Koren and M. Bisesi Environmental Engineering, 3-Volume Set (Sixth Edition), 2009, N.L. Nemerow, F.J. Agardy, P. Sullivan, and J.A. Salvato (editors) Control of Communicable Diseases Manual (20th Edition), 2015, D.L. Heymann (Editor), American Public Health Association Basic Environmental Health, 2001, A. Yassi, T. Kjellstrom, T. de Kok, and T.L. Guidotti Essential Epidemiology. Princioles and Aoplications, 2002, W. Oleckno Pool & Soa Operator™ Handbook, 2017, National Swimming Pool Foundation Princioles of Food Sanitation (Fifth Edition), 2006, N.G Marriott and R.B. Gravani Food Code, Food and Drug Administration Centers for Disease Control and Prevention — National Environmental Public Health Tracking FEMA National Incident Management System (NIMS) Courses Centers for Disease Control and Prevention (CDC), Environmental Health Emergency Response Guide HUD’s Healthy Homes Program CDC's Community Assessment for Public Health Emergency Response (CASPER) Toolkit: Second edition. Atlanta, GA: CDC; 2012 CDC's Healthy Homes Program NEHA REHS/RS® Candidate Information Brochure 9 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 102 of 232 Appendix A. Special Test Site Request Form for Paper and Pencil Group Exams. Minimum of 3 people testing. $350 fee for 3-9 people. Please allow 6-8 weeks for processing. Name of Person Requesting Site: Phone Number: Employer: Address: Email Address: Requested Test Date: Requested Location: Number of Expected Exam Candidates: Please attach to this application a list of candidate names and which exam (REHS/ RS®, CP-FS®, CCFS®, CFSSA® and CFOI®) they are taking. We need the list a month before the test date. There is a 3-person minimum for setting up a special test site. Acknowledgement Statement I, , acknowledge that this request to the National Environmental Health Association (NEHA) for a special test site is only a request and not a binding agreement to provide such a test site. | also acknowledge that if there are fewer than 10 candidates testing, a fee of $350.00 will be incurred and must be paid in full a month PRIOR to the test date. My signature below attests to my understanding and abiding to the above statement. Signature Date NEHA REHS/RS® Candidate Information Brochure 10 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Appendix A, page 2 Proctor Information for Special Test Sites Proctor Name: Page 103 of 232 Title: Mailing Address (Cannot ship to PO Box, APO or FPO): Street: City: State: Work Phone: Zip: Cell: Email Address: National Environmental Health Association Attn: Credentialing Department 720 S. Colorado Blvd., Suite 1000-N Denver, CO 80246 E-mail: credentialing@neha.org Fax: 303-691-9490 Please allow 6-8 weeks for processing and setting up test arrangements. If you have any questions or need assistance completing this application, please contact the NEHA Credentialing Department at: 303-756-9090, ext. 310. NEHA REHS/RS® Candidate Information Brochure 11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 104 of 232 Ex L Sanitarian | National Enviccamentaienth@oedaidakiky, Document 138-2 Filed 12/12/20 Page 105 of 232 11/1/20, 3:21 PWV Sanitarian Company: istrict of Columbia Department of Health DC}HEALTH Location: Was hington, D.C. GOVERNMENT OF THE DISTRICT OF COLUMBIA Date Posted: January 6, 2020 Application Deadline: January 12, 2020 Employment Type: Full time Salary: $62,287.00 - $78,190.00 Sanitarian About the Position Bring your professional career to Washington, D.C., the most dynamic and diverse city in the country. With its proximity to major museums, world class parks, entertainment and restaurants, increasing job opportunities and the seat of the federal government. The District of Columbia continues to be ranked the top 10 thriving city indicators where you can live work and play. Contribute to and work for a nationally accredited Health Department. The District of Columbia, Department of Health (DC Health) earned national accredited by the Public Health Accreditation Board (PHAB) and is an early adopter in attaining the designation. Come see where your skills are appreciated and rewarded by applying the following public health Opportunity. This position is located in the Department of Health (DC Health), Health Regulation and Licensing Administration (HRLA), Food Safety and Hygiene Inspection Services Division (FSHISD). The FSHISD is responsible for protecting the https://www.neha.org/node/61198 Page 1of 6 Sanitarian | National Enfvexstenth! BOnG@AeQada-Gakk Document 138-2 Filed 12/12/20 Page 106 of 232 11/1/20, 3:21 Pm public health and safety and the environment of the residents and visitors in the District of Columbia through inspecting and protecting the food supply, inspecting other non-food health establishments, such as, spas, and investigating food borne illnesses. Incumbent is responsible for inspecting and evaluating environment health conditions throughout the food service industry through periodic inspections of food service establishments, such as, restaurants, grocery stores, delicatessens, food vendors, ice cream and diary plants and open air markets. Incumbent also inspects and evaluates environment health conditions in non-food establishments, such as, beauty and barber shops, nail salons, public baths, spas, massage parlors, health clubs, bedding manufacturers, electrolysis salons and swimming pools. Duties and Responsibilities The incumbent serves as a Sanitarian and will be responsible for conducting daily route and work assignments to ensure timely completion as well as addressing appointments, consultations and instructional meetings relative to promoting improvement within assigned area. The incumbent performs routine inspections of low to moderate risk food and non-food establishments and determines what type of action to take once violations or unsanitary conditions are found and conducts re-inspection investigations of low to moderate risk facilities to ensure that establishments are in compliance with verbal or written instructions of abatement. The incumbent investigates low to moderate risk public and official complaints alleging violations or unsanitary conditions within food and non-food establishments that may result in a possible hygienic-related or food borne illness. In the event that the owner/manager fails to comply with requirements, the incumbent initiates enforcement actions on routine matters and refers more complex or controversial issues to Supervisor. The incumbent will prepare written reports explaining the violations found during inspections, along with recommendations and a deadline for abatement. https://www.neha.org/node/61198 Page 2 of 6 Saniiaran | Netional Epyisonmmentas Healy AgeRSIAEETCHEKA Document 138-2 Filed 12/12/20 Page 107 of 232 ee The incumbent utilizes observational techniques and a variety of detection instruments and solutions, as well as specialized equipment in the conduct of inspections and investigations. The incumbent serves as a witness for the agency in cases where owners/managers have not complied with the District laws and regulations and appears at the administrative trials. The incumbent provides factual testimony and prepares and presents evidence for pertinent cases, The incumbent also compiles and prepares statistical reports for use by management staff in analyzing program/project Progress to ensure that internal and external reporting is completed in a timely manner. The incumbent Responds quickly, orally and in writing, to inquiries, provides relevant information to the public concerning Division programs and services. Working Conditions and Environment The work environment involves moderate risk or discomfort, which require safety precautions typical of an office or duties conducted in the field. The office is adequately lighted and ventilated. Incumbent is required to conduct field activities in inclement weather. Other Significant Facts Tour of Duty: Monday - Friday - 8:15 a.m. - 4:45 p.m. Promotion Potential: None Duration of Appointment: Career Service (Permanent) Appointment Pay Plan, Series and Grade: CS-688-09 This position is in the collective bargaining unit represented by AFGE Local 2725 and you may be required to Pay an agency fee (dues) through direct payroll. Employee's work schedule will or may deviate from the standard tour of duty to accommodate evening inspections of facilities for observation of Hookah violations or other violations enforced by FSHISD, Emergency Designation https://www.neha.org/node/61198 Page 3of 6 saa een CES E EEN OUSAEECRK Document 138-2 Filed 12/12/20 Page 108 of 232 1/20. 3:21PM This position has been designated as Emergency. Employees occupying positions designated as Emergency are required to: Provide advice, recommendations, and/or specific functional support necessary for the continuity of operations during a declared emergency. Remain at their duty station, or alternate work location (approved by their supervisor), if activated, when a situation or condition occurs and results in early dismissal for nonessential/non-emergency employees. Report to their duty station, when activated, on time and as scheduled when a situation or condition occurs during non-work hours, and results in the late arrival or closing of District government offices for non-essential/non-emergency employees. Telework during a declared emergency, instead of remaining or reporting to his or her duty station, if directed by the agency head (or designee), supervisor or manager. Carry or wear their official District government ID card during the period of the declared emergency, if not teleworking. Position Designation: Security Sensitive under the guidelines of the DC Personnel Manual. Incumbents of this position are subject to enhanced suitability screening pursuant to Chapter 4 of DC personnel regulations, and are subject to the following checks and test: (a) Criminal background check; (b) Traffic record check (as applicable); (c) Consumer credit check (as applicable); (d) Reasonable suspicion drug and alcohol test; and (e) Post-accident or incident drug and alcohol test. EEO Statement: The District of Columbia Government is an Equal Opportunity Employer. All qualified candidates will receive consideration without regard to race, color, religion, national origin, sex, age, marital status, personal appearance, https://www.neha.org/node/61198 Page 4 of 6 Senteran | National Epdrgnmentab dealt ASBRSIARRICNMA. Document 138-2 Filed 12/12/20 Page 109 of 232 ssiiiaaitean sexual orientation, family responsibilities, matriculation, physical handicap, or political affiliation. Qualifications Individuals must possess one (1 ) year of specialized experience equivalent to the Grade 07 level, or its non-District equivalent. Specialized experience is experience which is in or directly related to the line of work of this position and has equipped the applicant with the particular knowledge, skills, and abilities to successfully perform the duties of this position. A full 4-year course of study that meets all the requirements for a bachelor's degree, and that included or was supplemented by at least 30 semester hours in a science or any combination of sciences directly related to environmental health (such as sanitary science, public health, chemistry, microbiology, or any appropriate agricultural, biological, or physical science), or Four years of experience in inspectional, investigational, technical support, or other responsible work that provided a knowledge and a fundamental understanding of, and the ability to use, environmental health principles, methods, and techniques equivalent to that which would have been gained through a 4-year college curriculum. or A combination of education and experience as described above. In addition to meeting the basic requirements, applicants must have the amounts of education and/or experience required for the grade level as shown below: Requirements: GS-9 - 2 full years of progressively higher level graduate education or master's or equivalent graduate degree related to environmental health and 1 year of experience equivalent to at least the GS-7 level. https://www.neha.org/node/61198 Page 5 of 6 moma neene ease 1 20-CV-OOSISCRE Document 138-2 Filed 12/12/20 Page 110 of 232 120,321 em Licenses, Certifications, and Other Requirements Incumbent is required to possess a valid driver license in order to drive a government/personal vehicle to inspection sites. How to Apply Go to https://dchr.dc.gov/page/careers and click on Careers DC. Search for "Sanitarian" or Job ID "9490" BACK TO JOB LISTINGS https://www.neha.org/node/61198 Page 6 of 6 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 111 of 232 Ex M Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 112 of 232 Traammg Plan forDOC Sanitanan Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 113 of 232 WORLD HEATIH ORGANIZATION Onlme Trammg Modules inc lude: Infec tion Prevention and Contwlfornovelcomwnavius (COVID-19) How to putonand remove personal pwtec tive equipment Standard Precautions: Hand Hygiene Standard Precautions: Waste Management Standard Precautions: InvionmentalCleaning and Dismfec tion Basic Micw biology To access trainmg please use this lnk: http s://www.who .nt/emerencies/ disease s/no velco na virus-2019/ traiming/o nline - tramm Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 114 of 232 C ENTERS FO R DISEASE CONTROLAND PREV ENTIO N The COVID-19 pandemtc isa senous globalhealth threat, and CDC is committed to stoppmg itsspread. CDC hasa long history of streng thenmg public health capacity throughout the word to contam outbreaks at ther source and minimuze thermpact. CDC is workmg closely with the Word Health Organization (WHO) and other partners to assist countnes to prepare forand respond to COVIDD-19. CDC routmely pwvides technic alassistance to mmistres of health and subnationaland mtemational partners to mprve ourcolkec tive response to infec tious disease threats like COVID-19. This mterm guidance isbased on whatiscunently known about the transmission and seventy of coronavirus disease 2019 (COVID-19) as of the date of postmg, October7, 2020. Thisdocument pwvidesmternm guidance specific forconec tional fac ilities and detention centersdurmg the outbreakof COVD-19, to ensure contmuation of essentialpublic servicesand pwtection ofthe health and safety ofmcarcerated and detamed persons, staff, and visitors. Recommendations may need to be revised asmore nformation becomes available. *Guidance forCleaning and Disinfecting- attachment A *Re opening Guidance forCleaning and Disinfec ting Public Spaces, Workplaces, Busine sses, Schools, and Homes- attachment B *Cleaning and Disinfec ting Your Facility- attachment C Interim Guidance on Management of Coronavirs Disease 2019 (COVID-19) in Conrectionaland Detention Facilities Updated Oct. 21, 2020 Cleaning and Disinfec ting Practices V Even if COVID-19 has not yet been identified inside the facility orin the sunv unding community, implement intensified cleanmg and disinfecting proceduresacconiing to Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 115 of 232 the rcommendations below. These measurescan help prvent sprad of SARSCoV- 2 ifintw duced, and ifaleady present though asymptomatic infec tions. \ Adhere to CDC recommendations forcleaning and disinfection during the COVID-19 response. Monitorthese rrcommendations forupdates. e Visit the CDC website fora toolto help mplementcleanmg and disinfection. e Severaltimes perday,cleanand disinfect surfacesand objects that are frequently touched, especialy m common areas. Such surfaces may include objec ts/ surfaces not ondinarily cleaned daily (e.g., doorknobs, light switc hes, snk handles, counterto ps, toile ts, toilet handles, recreation equipment, ko sks, telephones, and computerequipment). e Staffshould clean shared equipment (e.g., radios, service weapons, keys, handcuffs) severaltimes perday and when the use of the equipment has concluded. e Use household cleanersand EPA-rgistered disinfec tants effective agaist SARS. CoV-2, the virus that causes COVID-19exte malicon asappwpnate forthe surface. e Follow labelinstructions forsafe and effective use of the cleaning pwduct, inc luding precautions that should be taken whenapplymg the pwduct, suchas weanng glovesand making sur there isgood ventilation dunng use, and around peopl. Clean accomwing to label imstnic tions to ensure safe and effective use, apprmpnate product dilution, and contact time. Facilities may considerliftng restric tionson undiluted disinfec tants (Le., re quiring the use of undiluted pwduct),ifapplicable. V Considerinc reasing the numberof staffand/ormcawerated/detained persons tramed and responsible forcleanmg common azeasto ensure contmualcleanmg of these areas thmughout the day. \ Fnsure adequate supplies to support intensified cleaning and dismfec tion practices, and have a planin place to restockrapidly ifneeded. Hygiene V Encourage allstaffand ncawemted/detamed persons to weara cloth face maskas much as safely possible, to prevent transmission of SARS-Co V-2 thn ugh re spa to ry dw pletsthat are created whena person talks, coughs, orsneezes (“source contw!”). e Pwvide masksatno costto ncamrwerated/detained individuals and launderthem vw utine ly. e Cleary explain the purpose of masksand when theiruse may be contramdicated. Because many individuals with COVID-19 do not have Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 116 of 232 symptoms, itisimportant foreveryone to wearmasksin ornderto pwtecteach other “My mask pwtects you, yourmask pwtects me.” e Ensure staff know thatc loth masks should not be used asa substitute forsurgical masks or N95 respirators that may be required based on an individuals scope of duties. Cloth masks are not PPEbut are wom to pwtectothers in the sunv unding area from respiratory dwplets generated by the wearer. e Surgicalmasks may also be used assource contwlbut should be conserved for situa tions requinng PPE. V Reinfowe healthy hygiene practices, and pwvide and continually rstock hygiene sup plies thro ugho ut the facility,including n bathwoms, food prparmtionand dining areas, intake areas, visitorentresand exits, visitation momsand waitmg woms, common areas, medical, and staff-restricted areas (e.g., breakwoms). checklght icon Powvide mcarerated/detained personsand staff no-costaccessto: e Soap — Provide liquid orfoam soap where possible. fbarsoap must be used, ensure that itdoes not mritate the skin, as this would discourage frequent hand washing, and ensure that ndividuals ar not sharing bawof soap. e Running water, and hand drying machines ordisposable papertowels forhand washing e ‘Tissues and (where possible) no-touch trash rceptacles fordisposal e Face masks \ Provide alcohol-based hand sanitize r with at least 60% alcohol where penmnissible based on security restric tions. Considerallowmmg staff to cary individualsized bottles to maintain hand hygiene. V¥ Communicate that sharmg drugsand dmg pr parsation equipment can spread SARS CoV-2 due to potentialcontammation of shared itemsand close contact between individ uals. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 117 of 232 DC Department of Youth and Re ha bilita tion Services Training schedule to be devised within next seven days. Dwayne Coley hasagreed to assist DOC in the trainmg of our Sanitanan. Training shallbegin November 16, 2020. We willmeet within the next seven days to discussa traming plan. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 118 of 232 DC Department of Cone c tions Environmentaland Fire Sa fe ty Pro grams Inte mal training shallbegin once training with DYRS Sanitarian is complete. Training sha llinc lude: Blooodbome pathogens By: Gloria J Robertso n/ info ma tion from KRob inson COVD Cleanmng By: Set. Wortham and Gloria J Robertson Enviro nme ntal Prac tic es (inspec tions): By: Sgt. Wortham Se If-Stud y: Potomac Hudson Engineering Inc, “Onsite Audit nspec tion Report” — attachment D Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 119 of 232 U.S. DEPA RIMENTO FIABOR O VERVIEW: What are bloodbome pathogens? Bloodbome pathogens are infec tious mic wo anisms in human blood thatcan cause disease in humans. These pathogens include, but are not limited to, he patitis B (HBV), he patitis C (HCV) and human immuno defic ienc y virus (HIV). Needlestic ks and othersharps-re lated injuries may expose workers to bloodbome pathogens. Workers in many occ upations, inc luding first responders, ho use kee ping personnelin some industries, nurses and otherhealthcare personnel, allmay be atrisk forexposure to bloodbome pathogens. Whatcanbe done to controlexposur to bloodbome pathogens? In onderto reduce oreliminate the hazards of occupationalexposure to bloodbome pathogens, anemplyermust implement an exposure control plan forthe worksite with detaisonemployee protec tion measures. The plan mustalso descrbe how anemployerwilluse engineenng and work practice controls, personal pwtective clothing and equipment, employee training, medical surveillance, hepatitis Bvacc nations, and other pw visions as required by OSHA's Bloodbome Pathogens Standan (29 CFR1910.1030). Engineering controlsare the primary means of eliminating orminimizng employee exposure and include the use of safermedicaldevices, such asneedleless devices, shielded needle devices, and plastic capillary tubes. To continue training, please access via link: http s://www.osha.gov/bloodbome-pathogens GUIDANCE FOR CLEANING AND DISINFEC TING Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 121 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCAN HERE FOR MORE SCHOOLS, AND HOMES INFORMATION This guidance is intended for all Americans, whether you own a business, run a school, or want to ensure the cleanliness and safety of your home. Reopening America requires all of us to move forward together by practicing social distancing and other daily habits to reduce our risk of exposure to the virus that causes COVID-19. Reopening the country also strongly relies on public health strategies, including increased testing of people for the virus, social distancing, isolation, and keeping track of how someone infected might have infected other people. This plan is part of the larger United States Government plan and focuses on cleaning and disinfecting public spaces, workplaces, businesses, schools, and can also be applied to your home. Cleaning and disinfecting public spaces including your workplace, school, home, and business will require you to: * Develop your plan * Implement your plan * Maintain and revise your plan Reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening public spaces that will require careful planning. Every American has been called upon to slow the spread of the virus through social distancing and prevention hygiene, such as frequently washing your hands and wearing face coverings. Everyone also has a role in making sure our communities are as safe as possible to reopen and remain open. The virus that causes COVID-19 can be killed if you use the right products. EPA has compiled a list of disinfectant products that can be used against COVID-19, including ready-to-use sprays, concentrates, and wipes. Each product has been shown to be effective against viruses that are harder to kill than viruses like the one that causes COVID-19. For more information, please visit CORONAVIRUS.GOV Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 122 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES This document provides a general framework for cleaning and disinfection practices. The framework is based on doing the following: 1. Normal routine cleaning with soap and water will decrease how much of the virus is on surfaces and objects, which reduces the risk of exposure. 2. Disinfection using EPA-approved disinfectants against COVID-19 can also help reduce the risk. Frequent disinfection of surfaces and objects touched by multiple people is important. 3. When EPA-approved disinfectants are not available, alternative disinfectants can be used (for example, 1/3 cup of bleach added to 1 gallon of water, or 70% alcohol solutions). Do not mix bleach or other cleaning and disinfection products together—this can cause fumes that may be very dangerous to breathe in. Keep all disinfectants out of the reach of children. Links to specific recommendations for many public spaces that use this framework, can be found at the end of this document. it’s important to continue to follow federal, state, tribal, territorial, and local guidance for reopening America. A Few Important Reminders about Coronaviruses and Reducing the Risk of Exposure: * Coronaviruses on surfaces and objects naturally die within hours to days. Warmer temperatures and exposure to sunlight will reduce the time the virus survives on surfaces and objects. + Normal routine cleaning with soap and water removes germs and dirt from surfaces. It lowers the risk of spreading COVID-19 infection. * Disinfectants kill germs on surfaces. By killing germs on a surface after cleaning, you can further lower the risk of spreading infection. EPA-approved disinfectants are an important part of reducing the risk of exposure to COVID-19. If disinfectants on this list are in short supply, alternative disinfectants can be used (for example, 1/3 cup of bleach added to 1 gallon of water, or 70% alcohol solutions). * Store and use disinfectants in a responsible and appropriate manner according to the label. Do not mix bleach or other cleaning and disinfection products together—this can cause fumes that may be very dangerous to breathe in. Keep all disinfectants out of the reach of children. + Do not overuse or stockpile disinfectants or other supplies. This can result in shortages of appropriate products for others to use incritical situations. + Always wear gloves appropriate for the chemicals being used when you are cleaning and disinfecting. Additional personal protective equipment (PPE) may be needed based on setting and product. For more information, see CDC’s website on Cleaning and Disinfection for Community Facilities. * Practice social distancing, wear facial coverings, and follow proper prevention hygiene, such as washing your hands frequently and using alcohol-based (at least 60% alcohol) hand sanitizer when soap and water are not available. If you oversee staff in a workplace, your plan should include considerations about the safety of custodial staff and other people who are carrying out the cleaning or disinfecting. These people are at increased risk of being exposed to the virus and to any toxic effects of the cleaning chemicals. These staff should wear appropriate PPE for cleaning and disinfecting. To protect your staff and to ensure that the products are used effectively, staff should be instructed on how to apply the disinfectants according to the label. For more information on concerns related to cleaning staff, visit the Occupational Safety and Health Administration’s website on Control and Prevention. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 123 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES DEVELOP YOUR PLAN Evaluate your workplace, school, home, or business to determine what kinds of surfaces and materials make up that area. Most surfaces and objects will just need normal routine cleaning. Frequently touched surfaces and objects like light switches and doorknobs will need to be cleaned and then disinfected to further reduce the risk of germs on surfaces and objects. * First, clean the surface or object with soap and water. * Then, disinfect using an EPA-approved disinfectant. + Ifan EPA-approved disinfectant is unavailable, you can use 1/3 cup of bleach added to 1 gallon of water, or 70% alcohol solutions to disinfect. Do not mix bleach or other cleaning and disinfection products together. Find additional information at CDC’s website on Cleaning and Disinfecting Your Facility. You should also consider what items can be moved or removed completely to reduce frequent handling or contact from multiple people. Soft and porous materials, such as area rugs and seating, may be removed or stored to reduce the challenges with cleaning and disinfecting them. Find additional reopening guidance for cleaning and disinfecting in the Reopening Decision Tool. It is critical that your plan includes how to maintain a cleaning and disinfecting strategy after reopening. Develop a flexible plan with your staff or family, adjusting the plan as federal, state, tribal, territorial, or local guidance is updated and if your specific circumstances change. Determine what needs to be cleaned Some surfaces only need to be cleaned with soap and water. For example, surfaces and objects that are not frequently touched should be cleaned and do not require additional disinfection. Additionally, disinfectants should typically not be applied on items used by children, especially any items that children might put in their mouths. Many disinfectants are toxic when swallowed. In a household setting, cleaning toys and other items used by children with soap and water is usually sufficient. Find more information on cleaning and disinfection toys and other surfaces in the childcare program setting at CDC’s Guidance for Childcare Programs that Remain Open. These questions will help you decide which surfaces and objects will need normal routine cleaning. Is the area outdoors? Outdoor areas generally require normal routine cleaning and do not require disinfection. Spraying disinfectant on sidewalks and in parks is not an efficient use of disinfectant supplies and has not been proven to reduce the risk of COVID-19 to the public. You should maintain existing cleaning and hygiene practices for outdoor areas. The targeted use of disinfectants can be done effectively, efficiently and safely on outdoor hard surfaces and objects frequently touched by multiple people. Certain outdoor areas and facilities, such as bars and restaurants, may have additional requirements. More information can be found on CDC’s website on Food Safety and the Coronavirus Disease 2019 (COVID-19). There is no evidence that the virus that causes COVID-19 can spread directly to humans from water in pools, hot tubs or spas, or water play areas. Proper operation, maintenance, and disinfection (for example, with chlorine or bromine) of pools, hot tubs or spas, and water playgrounds should kill the virus that causes COVID-19. However, there are additional concerns with outdoor areas that may be maintained less frequently, including playgrounds, or other facilities located within local, state, or national parks. For more information, visit CDC’s website on Visiting Parks & Recreational Facilities. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 124 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES Has the area been unoccupied for the last 7 days? If your workplace, school, or business has been unoccupied for 7 days or more, it will only need your normal routine cleaning to reopen the area. This is because the virus that causes COVID-19 has not been shown to survive on surfaces longer than this time. There are many public health considerations, not just COVID-19 related, when reopening public buildings and spaces that have been closed for extended periods. For example, take measures to ensure the safety of your building water system. It is not necessary to clean ventilation systems, other than routine maintenance, as part of reducing risk of coronaviruses. For healthcare facilities, additional guidance is provided on CDC’s Guidelines for Environmental Infection Control in Health-Care Facilities. Determine what needs to be disinfected Following your normal routine cleaning, you can disinfect frequently touched surfaces and objects using a product from EPA’s list of approved products that are effective against COVID-19. These questions will help you choose appropriate disinfectants. Are you cleaning or disinfecting a hard and non-porous material or item like glass, metal, or plastic? Consult EPA’s list of approved products for use against COVID-19. This list will help you determine the most appropriate disinfectant for the surface or object. You can use diluted household bleach solutions if appropriate for the surface. Pay special attention to the personal protective equipment (PPE) that may be needed to safely apply the disinfectant and the manufacturer’s recommendations concerning any additional hazards. Keep all disinfectants out of the reach of children. Please visit CDC’s website on How to Clean and Disinfect for additional details and warnings. Examples of frequently touched surfaces and objects that will need routine disinfection following reopening are: * tables, + keyboards, * doorknobs, * toilets, + light switches, * faucets and sinks, * countertops, * gas pump handles, * handles, * touch screens, and « desks, « ATM machines. + phones, Each business or facility will have different surfaces and objects that are frequently touched by multiple people. Appropriately disinfect these surfaces and objects. For example, transit stations have specific guidance for application of cleaning and disinfection. Are you cleaning or disinfecting a soft and porous material or items like carpet, rugs, or seating in areas? Soft and porous materials are generally not as easy to disinfect as hard and non-porous surfaces. EPA has listed a limited number of products approved for disinfection for use on soft and porous materials. Soft and porous materials that are not frequently touched should only be cleaned or laundered, following the directions on the item’s label, using the warmest appropriate water setting. Find more information on CDC’s website on Cleaning and Disinfecting Your Facility for developing strategies for dealing with soft and porous materials. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 125 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES Consider the resources and equipment needed Keep in mind the availability of cleaning and disinfection products and appropriate PPE. Always wear gloves appropriate for the chemicals being used for routine cleaning and disinfecting. Follow the directions on the disinfectant label for additional PPE needs. In specific instances, personnel with specialized training and equipment may be required to apply certain disinfectants such as fumigants or fogs. For more information on appropriate PPE for cleaning and disinfection, see CDC’s website on Cleaning and Disinfection for Community Facilities. IMPLEMENT YOUR PLAN Once you have a plan, it’s time to take action. Read all manufacturer’s instructions for the cleaning and disinfection products you will use. Put on your gloves and other required personal protective equipment (PPE) to begin the process of cleaning and disinfecting. Clean visibly dirty surfaces with soap and water Clean surfaces and objects using soap and water prior to disinfection. Always wear gloves appropriate for the chemicals being used for routine cleaning and disinfecting. Follow the directions on the disinfectant label for additional PPE needs. When you finish cleaning, remember to wash hands thoroughly with soap and water. Clean or launder soft and porous materials like seating in an office or coffee shop, area rugs, and carpets. Launder items according to the manufacturer’s instructions, using the warmest temperature setting possible and dry items completely. Use the appropriate cleaning or disinfectant product EPA approved disinfectants, when applied according to the manufacturer’s label, are effective for use against COVID-19. Follow the instructions on the label for all cleaning and disinfection products for concentration, dilution, application method, contact time and any other special considerations when applying. Always follow the directions on the label Follow the instructions on the label to ensure safe and effective use of the product. Many product labels recommend keeping the surface wet for a specific amount of time. The label will also list precautions such as wearing gloves and making sure you have good ventilation during use of the product. Keep all disinfectants out of the reach of children. MAINTAIN AND REVISE YOUR PLAN Take steps to reduce your risk of exposure to the virus that causes COVID-19 during daily activities. CDC provides tips to reduce your exposure and risk of acquiring COVID-19. Reducing exposure to yourself and others is a shared responsibility. Continue to update your plan based on updated guidance and your current circumstances. Continue routine cleaning and disinfecting Routine cleaning and disinfecting are an important part of reducing the risk of exposure to COVID-19. Normal routine cleaning with soap and water alone can reduce risk of exposure and is a necessary step before you disinfect dirty surfaces. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 126 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES Surfaces frequently touched by multiple people, such as door handles, desks, phones, light switches, and faucets, should be cleaned and disinfected at least daily. More frequent cleaning and disinfection may be required based on level of use. For example, certain surfaces and objects in public spaces, such as shopping carts and point of sale keypads, should be cleaned and disinfected before each use. Consider choosing a different disinfectant if your first choice is in short supply. Make sure there is enough supply of gloves and appropriate personal protective equipment (PPE) based on the label, the amount of product you will need to apply, and the size of the surface you are treating. Maintain safe behavioral practices We have all had to make significant behavioral changes to reduce the spread of COVID-19. To reopen America, we will need to continue these practices: * social distancing (specifically, staying 6 feet away from others when you must go into a shared space) * frequently washing hands or use alcohol-based (at least 60% alcohol) hand sanitizer when soap and water are not available + wearing cloth face coverings * avoiding touching eyes, nose, and mouth + staying home when sick + cleaning and disinfecting frequently touched objects and surfaces It’s important to continue to follow federal, state, tribal, territorial, and local guidance for reopening America. Check this resource for updates on COVID-19. This will help you change your plan when situations are updated. Consider practices that reduce the potential for exposure It is also essential to change the ways we use public spaces to work, live, and play. We should continue thinking about our safety and the safety of others. To reduce your exposure to or the risk of spreading COVID-19 after reopening your business or facility, consider whether you need to touch certain surfaces or materials. Consider wiping public surfaces before and after you touch them. These types of behavioral adjustments can help reduce the spread of COVID-19. There are other resources for more information on COVID-19 and how to Prevent Getting Sick. Another way to reduce the risk of exposure is to make long-term changes to practices and procedures. These could include reducing the use of porous materials used for seating, leaving some doors open to reduce touching by multiple people, opening windows to improve ventilation, or removing objects in your common areas, like coffee creamer containers. There are many other steps that businesses and institutions can put into place to help reduce the spread of COVID-19 and protect their staff and the public. More information can be found at CDC’s Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 127 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES CONCLUSION Reopening America requires all of us to move forward together using recommended best practices and maintaining safe daily habits in order to reduce our risk of exposure to COVID-19. Remember: We're all in this together! Additional resources with more specific recommendations. HEALTHCARE SETTINGS Long-term Care Facilities, Nursing Homes Infection Control in Healthcare Settings Using Personal Protective Equipment Hand Hygiene Interim Guidance for Infection Prevention Preparedness Checklist Things Facilities Should Do Now to Prepare for COVID-19 When there are Cases in the Facility Dialysis Facilities Infection Control in Healthcare Settings Using Personal Protective Equipment Hand Hygiene Interim guidance for Outpatient Hemodialysis Facilities Patient Screening Blood and Plasma Facilities Infection control in Healthcare Settings Infection Control and Environmental Management Using Personal Protective Equipment Hand Hygiene Interim Guidance for Blood and Plasma Collection Facilities Alternate Care Sites Infection Prevention and Control Dental Settings Infection Control in Healthcare Settings Using Personal Protective Equipment Hand Hygiene Interim Guidance for Dental Settings Pharmacies Infection Control in Healthcare Settings Using Personal Protective Equipment Hand Hygiene Interim Guidance for Pharmacies Risk-Reduction During Close-Contact Services Outpatient and ambulatory care facilities Infection Control in Healthcare Settings Using Personal Protective Equipment Hand Hygiene Interim Guidance for Outpatient & Ambulatory Care Settings Postmortem Care Using Personal Protective Equipment Hand Hygiene Collection and Submission of Postmortem Samples Cleaning and Waste Disposal Transportation of Human Remains Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 128 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES COMMUNITY LOCATIONS Critical Infrastructure Employees Interim Guidance for Critical Infrastructure Employees Cleaning and Disinfecting your Facility Schools and childcare programs K-12 and Childcare Interim Guidance Cleaning and Disinfecting your Facility FAQ for Administrators Parent and Teacher Checklist Colleges and universities Interim Guidance for Colleges & Universities Cleaning and Disinfecting your Facility Guidance for Student Foreign Travel FAQ for Administrators Gatherings and community events Interim Guidance for Mass Gatherings and Events Election Polling Location Guidance Events FAQ HOME SETTING Community- and faith-based organizations Interim Guidance for Organizations Cleaning and Disinfecting your Facility Businesses Interim Guidance for Businesses Parks & Rec Facilities Guidance for Administrators of Parks Law Enforcement What Law Enforcement Personnel Need to Know about COVID-19 Homeless Service Providers Interim Guidance for Homeless Service Providers Retirement Homes Interim Guidance for Retirement Communities FAQ for Administrators Correction & Detention Facilities Interim Guidance for Correction & Detention Facilities FAQ for Administrators Preventing Getting Sick How to Protect Yourself and Others How to Safely Sterilize/Clean a Cloth Face Covering Cleaning and Disinfecting your Home Tribal—How to Prevent the Spread of Coronavirus (COVID-19) in Your Home Tribal—How to Care for Yourself at Home During Covid-19 Running Errands Shopping for Food and Other Essential Items Accepting Deliveries and Takeout Banking Getting Gasoline Going to the Doctor and Pharmacy If you are sick Steps to Help Prevent the Spread of COVID19 if You are Sick Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 129 of 232 GUIDANCE FOR CLEANING AND DISINFECTING PUBLIC SPACES, WORKPLACES, BUSINESSES, SCHOOLS, AND HOMES TRANSPORTATION Ships Interim Guidance for Ships on Managing Suspected COVID-19 Airlines Cleaning Aircraft Carriers Airline Agents Interim Guidance Buses Bus Transit Operator RESTAURANTS & BARS Rail Rail Transit Operators Transit Station Workers EMS Transport Vehicles Interim Guidance for EMS Taxis and Rideshares Keeping Commercial Establishments Safe Best Practices from FDA  Reopening Guidance forCleaning and Disinfe c tng Public Spaces, Workplaces, 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard Disntettiny BObR spats IMbRPAY Busikeasge sbichic) bra Blames | CDC "a 024 Centers for Disease i y e Control and Prevention coc Coronavirus Disease 2019 (COVID-19) Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes Updated May 7, 2020 Print This guidance is intended for all Americans, whether you own a business, run a school, or GUIDANCE FOR Be want to ensure the cleanliness and safety of your CLEANING & DISINFECTING . . . PUBLIC SPACES, WORKPLACES, BUSINESSES, home. Reopening America requires all of us to SCHOOLS, AND HOMES 2 ar oMEn S eerie ee ve eran eam Ct move forward together by practicing social areca distancing and other daily habits to reduce our risk of exposure to the virus that causes COVID- 19. Reopening the country also strongly relies on public health strategies, including increased testing of people for the virus, social distancing, Lama 4 om isolation, and keeping track of how someone Cleaning & Disinfecting Decision Tool infected might have infected other people. This plan is part of the larger United States Reopening Guidance for Cleaning and Disinfecting B§ [PDF - 9 pages] Government plan [4 and focuses on cleaning and disinfecting public spaces, workplaces, businesses, schools, and can also be applied to your home. Cleaning and disinfecting public spaces including your workplace, school, home, and business will require you to: e Develop your plan e Implement your plan e Maintain and revise your plan Reducing the risk of exposure to COVID-19 by cleaning and disinfection is an important part of reopening public spaces that will require careful planning. Every American has been called upon to slow the spread of the virus through social distancing and prevention hygiene, such as frequently washing your hands and wearing masks. Everyone also has a role in making sure our communities are as safe as possible to reopen and remain open. The virus that causes COVID-19 can be killed if you use the right products. EPA has compiled a list of disinfectant products that can be used against COVID-19, including ready-to-use sprays, concentrates, and wipes. Each product has been shown to be effective against viruses that are harder to kill than viruses like the one that causes COVID-19. This document provides a general framework for cleaning and disinfection practices. The framework is based on doing the following: 1. Normal routine cleaning with soap and water will decrease how much of the virus is on surfaces and objects, which reduces the risk of exposure. 2. Disinfection using EPA-approved disinfectants against COVID-19 [4% can also help reduce the risk. Frequent disinfection of surfaces and objects touched by multiple people is important. 3. When EPA-approved disinfectants [4 are not available, alternative disinfectants can be used (for example, 1/3 cup of 5.25%-8.25% bleach added to 1 gallon of water, or 70% alcohol solutions). Do not mix bleach or other cleaning and disinfection products together. This can cause fumes that may be very dangerous to breathe in. Bleach solutions will be effective for disinfection up to 24 hours. Keep all disinfectants out of the reach of children. Read EPA's infographic on how to use these disinfectant products [4 safely and effectively. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 1/9 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard Disntettiny BObR spats IMbRPbAY Busikeasge sbhadic) brid Blames | CDC Always read and follow the directions on the label to ensure safe and effective use. e Wear skin protection and consider eye protection for potential splash hazards e Ensure adequate ventilation e Use no more than the amount recommended on the label e Use water at room temperature for dilution (unless stated otherwise on the label) e Avoid mixing chemical products e Label diluted cleaning solutions e Store and use chemicals out of the reach of children and pets You should never eat, drink, breathe or inject these products into your body or apply directly to your skin as they can cause serious harm. Do not wipe or bathe pets with these products or any other products that are not approved for animal use. See EPA's 6 steps for Safe and Effective Disinfectant Use 4. Special considerations should be made for people with asthma and they should not be present when cleaning and disinfecting is happening as this can trigger asthma exacerbations. Learn more about reducing asthma triggers. Links to specific recommendations for many public spaces that use this framework, can be found at the end of this document. It's important to continue to follow federal, state, tribal, territorial, and local guidance for reopening America. A Few Important Reminders about Coronaviruses and Reducing the Risk of Exposure: e Coronaviruses on surfaces and objects naturally die within hours to days. Warmer temperatures and exposure to sunlight will reduce the time the virus survives on surfaces and objects. e Normal routine cleaning with soap and water removes germs and dirt from surfaces. It lowers the risk of spreading COVID-19 infection. e Disinfectants kill germs on surfaces. By killing germs on a surface after cleaning, you can further lower the risk of spreading infection. EPA-approved disinfectants [47 are an important part of reducing the risk of exposure to COVID-19. If disinfectants on this list are in short supply, alternative disinfectants can be used (for example, 1/3 cup of 5.25%-8.25% bleach added to 1 gallon of water, or 70% alcohol solutions). Bleach solutions will be effective for disinfection up to 24 hours. e Store and use disinfectants in a responsible and appropriate manner according to the label. Do not mix bleach or other cleaning and disinfection products together-this can cause fumes that may be very dangerous to breathe in. Keep all disinfectants out of the reach of children. e Do not overuse or stockpile disinfectants or other supplies. This can result in shortages of appropriate products for others to use in critical situations. e Always wear gloves appropriate for the chemicals being used when you are cleaning and disinfecting. Additional personal protective equipment (PPE) may be needed based on setting and product. For more information, see CDC’s website on Cleaning and Disinfection for Community Facilities. e Practice social distancing, wear facial coverings, and follow proper prevention hygiene, such as washing your hands frequently and using alcohol-based (at least 60% alcohol) hand sanitizer when soap and water are not available. If you oversee Staff in a workplace, your plan should include considerations about the safety of custodial staff and other people who are carrying out the cleaning or disinfecting. These people are at increased risk of being exposed to the virus and to any toxic effects of the cleaning chemicals. These staff should wear appropriate PPE for cleaning and disinfecting. To protect your staff and to ensure that the products are used effectively, staff should be instructed on how to apply the disinfectants according to the label. For more information on concerns related to cleaning staff, visit the Occupational Safety and Health Administration’s website on Control and Prevention. [4 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 2/9 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard DisntEttiny BObR spats IMbRPAY Busikeasge Sbhes 1c) brid Blames | CDC Develop Your Plan Evaluate your workplace, school, home, or business to determine what kinds of surfaces and materials make up that area. Most surfaces and objects will just need normal routine cleaning. Frequently touched surfaces and objects like light switches and doorknobs will need to be cleaned and then disinfected to further reduce the risk of germs on surfaces and objects. e First, clean the surface or object with soap and water. e Then, disinfect using an EPA-approved disinfectant [4 . e If an EPA-approved disinfectant is unavailable, you can use 1/3 cup of 5.25%-8.25% bleach added to 1 gallon of water, or 70% alcohol solutions to disinfect. Do not mix bleach or other cleaning and disinfection products together. Bleach solutions will be effective for disinfection up to 24 hours. Find additional information at CDC’s website on Cleaning and Disinfecting Your Facility. You should also consider what items can be moved or removed completely to reduce frequent handling or contact from multiple people. Soft and porous materials, such as area rugs and seating, may be removed or stored to reduce the challenges with cleaning and disinfecting them. Find additional reopening guidance for cleaning and disinfecting in the Reopening Decision Tool B. It is critical that your plan includes how to maintain a cleaning and disinfecting strategy after reopening. Develop a flexible plan with your staff or family, adjusting the plan as federal, state, tribal, territorial, or local guidance is updated and if your specific circumstances change. Determine what needs to be cleaned Some surfaces only need to be cleaned with soap and water. For example, surfaces and objects that are not frequently touched should be cleaned and do not require additional disinfection. Additionally, disinfectants should typically not be applied on items used by children, especially any items that children might put in their mouths. Many disinfectants are toxic when swallowed. In a household setting, cleaning toys and other items used by children with soap and water is usually sufficient. Find more information on cleaning and disinfection toys and other surfaces in the childcare program setting at CDC's Guidance for Childcare Programs that Remain Open. These questions will help you decide which surfaces and objects will need normal routine cleaning. Is the area outdoors? Outdoor areas generally require normal routine cleaning and do not require disinfection. Spraying disinfectant on sidewalks and in parks is not an efficient use of disinfectant supplies and has not been proven to reduce the risk of COVID-19 to the public. You should maintain existing cleaning and hygiene practices for outdoor areas. The targeted use of disinfectants can be done effectively, efficiently and safely on outdoor hard surfaces and objects frequently touched by multiple people. Certain outdoor areas and facilities, such as bars and restaurants, may have additional requirements. More information can be found on FDA's website on Food Safety and the Coronavirus Disease 2019 (COVID-19) i. There is no evidence that the virus that causes COVID-19 can spread directly to humans from water in pools, hot tubs or spas, or water play areas. Proper operation, maintenance, and disinfection (for example, with chlorine or bromine) of pools, hot tubs or spas, and water playgrounds should kill the virus that causes COVID-19. However, there are additional concerns with outdoor areas that may be maintained less frequently, including playgrounds, or other facilities located within local, state, or national parks. For more information, visit CDC’s website on Visiting Parks & Recreational Facilities. Has the area been unoccupied for the last 7 days? If your workplace, school, or business has been unoccupied for 7 days or more, it will only need your normal routine cleaning to reopen the area. This is because the virus that causes COVID-19 has not been shown to survive on surfaces longer than this time. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 3/9 10/29/2020 Case Reatsnttig-QMBrts rfc KiteninDard Disntettiny BGR spats IMbRPAY Busikeasge Sbhoold) brid Blames | CDC There are many public health considerations, not just COVID-19 related, when reopening public buildings and spaces that have been closed for extended periods. For example, take measures to ensure the safety of your building water system. It is not necessary to clean ventilation systems, other than routine maintenance, as part of reducing risk of corona viruses. For healthcare facilities, additional guidance is provided on CDC's Guidelines for Environmental Infection Control in Health-Care Facilities BB. Determine what needs to be disinfected Following your normal routine cleaning, you can disinfect frequently touched surfaces and objects using a product from EPA's list of approved products that are effective against COVID-19./4 These questions will help you choose appropriate disinfectants. Are you cleaning or disinfecting a hard and non-porous material or item like glass, metal, or plastic? Consult EPA's list of approved products for use against COVID-19 [4. This list will help you determine the most appropriate disinfectant for the surface or object. You can use diluted household bleach solutions if appropriate for the surface. Pay special attention to the personal protective equipment (PPE) that may be needed to safely apply the disinfectant and the manufacturer’s recommendations concerning any additional hazards. Keep all disinfectants out of the reach of children. Please visit CDC’s website on How to Clean and Disinfect for additional details and warnings. Examples of frequently touched surfaces and objects that will need routine disinfection following reopening are: e tables, e doorknobs, e light switches, ¢ countertops, e handles, e desks, e phones, e keyboards, e toilets, e faucets and sinks, e gas pump handles, e touch screens, and e ATM machines Each business or facility will have different surfaces and objects that are frequently touched by multiple people. Appropriately disinfect these surfaces and objects. For example, transit stations have specific guidance for application of cleaning and disinfection. Are you cleaning or disinfecting a soft and porous material or items like carpet, rugs, or seating in areas? Soft and porous materials are generally not as easy to disinfect as hard and non-porous surfaces. EPA has listed a limited number of products approved for disinfection for use on soft and porous materials [4 . Soft and porous materials that are not frequently touched should only be cleaned or laundered, following the directions on the item’s label, using the warmest appropriate water setting. Find more information on CDC's website on Cleaning and Disinfecting Your Facility for developing strategies for dealing with soft and porous materials. Consider the resources and equipment needed https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 4/9 10/29/2020 Case Reatsnttig-QMBrts rfc KiteninDard DiRntEttiny BGR spats IMbRPAY Busikeasge sbhdoic) brid Bames | CDC Keep in mind the availability of cleaning and disinfection products and appropriate PPE. Always wear gloves appropriate for the chemicals being used for routine cleaning and disinfecting. Follow the directions on the disinfectant label for additional PPE needs. In specific instances, personnel with specialized training and equipment may be required to apply certain disinfectants such as fumigants or fogs. For more information on appropriate PPE for cleaning and disinfection, see CDC's website on Cleaning and Disinfection for Community Facilities. Implement Your Plan Once you have a plan, it’s time to take action. Read all manufacturer's instructions for the cleaning and disinfection products you will use. Put on your gloves and other required personal protective equipment (PPE) to begin the process of cleaning and disinfecting. Clean visibly dirty surfaces with soap and water Clean surfaces and objects using soap and water prior to disinfection. Always wear gloves appropriate for the chemicals being used for routine cleaning and disinfecting. Follow the directions on the disinfectant label for additional PPE needs. When you finish cleaning, remember to wash hands thoroughly with soap and water. Clean or launder soft and porous materials like seating in an office or coffee shop, area rugs, and carpets. Launder items according to the manufacturer's instructions, using the warmest temperature setting possible and dry items completely. Use the appropriate cleaning or disinfectant product EPA approved disinfectants [4 , when applied according to the manufacturer's label, are effective for use against COVID-19. Follow the instructions on the label for all cleaning and disinfection products for concentration, dilution, application method, contact time and any other special considerations when applying. Always follow the directions on the label Follow the instructions on the label to ensure safe and effective use of the product. Many product labels recommend keeping the surface wet for a specific amount of time. The label will also list precautions such as wearing gloves and making sure you have good ventilation during use of the product. Keep all disinfectants out of the reach of children. Maintain and Revise Your Plan Take steps to reduce your risk of exposure to the virus that causes COVID-19 during daily activities. CDC provides tips to reduce your exposure and risk of acquiring COVID-19. Reducing exposure to yourself and others is a shared responsibility. Continue to update your plan based on updated guidance and your current circumstances. Continue routine cleaning and disinfecting Routine cleaning and disinfecting are an important part of reducing the risk of exposure to COVID-19. Normal routine cleaning with soap and water alone can reduce risk of exposure and is a necessary step before you disinfect dirty surfaces. Surfaces frequently touched by multiple people, such as door handles, desks, phones, light switches, and faucets, should be cleaned and disinfected at least daily. More frequent cleaning and disinfection may be required based on level of use. For example, certain surfaces and objects in public spaces, such as shopping carts and point of sale keypads, should be cleaned and disinfected before each use. Consider choosing a different disinfectant if your first choice is in short supply. Make sure there is enough supply of gloves and appropriate personal protective equipment (PPE) based on the label, the amount of product you will need to apply, and the size of the surface you are treating. Maintain safe behavioral practices https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 5/9 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard Disntettiny BObR spats IMbRPRAY Busikeasge SbkOID bia Bames | CDC We have all had to make significant behavioral changes to reduce the spread of COVID-19. To reopen America, we will need to continue these practices: e social distancing (specifically, staying 6 feet away from others when you must go into a shared space) e frequently washing hands or use alcohol-based (at least 60% alcohol) hand sanitizer when soap and water are not available e wearing masks e avoiding touching eyes, nose, and mouth e staying home when sick e cleaning and disinfecting frequently touched objects and surfaces It’s important to continue to follow federal, state, tribal, territorial, and local guidance for reopening America. Check this resource for updates on COVID-19 (4. This will help you change your plan when situations are updated. Consider practices that reduce the potential for exposure It is also essential to change the ways we use public spaces to work, live, and play. We should continue thinking about our safety and the safety of others. To reduce your exposure to or the risk of spreading COVID-19 after reopening your business or facility, consider whether you need to touch certain surfaces or materials. Consider wiping public surfaces before and after you touch them. These types of behavioral adjustments can help reduce the spread of COVID-19. There are other resources for more information on COVID- 19 [4 and how to Prevent Getting Sick. Another way to reduce the risk of exposure is to make long-term changes to practices and procedures. These could include reducing the use of porous materials used for seating, leaving some doors open to reduce touching by multiple people, opening windows to improve ventilation, or removing objects in your common areas, like coffee creamer containers. There are many other steps that businesses and institutions can put into place to help reduce the spread of COVID-19 and protect their staff and the public. More information can be found at CDC’s Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission BB. Conclusion Reopening America requires all of us to move forward together using recommended best practices and maintaining safe daily habits in order to reduce our risk of exposure to COVID-19. Remember: We’re all in this together! Additional resources with more specific recommendations. Healthcare Setting e Long-term Care Facilities, Nursing Homes ° Infection Control in Healthcare Settings o Using Personal Protective Equipment ° Hand Hygiene ° Interim Guidance for Infection Prevention o Preparedness Checklist ° Things Facilities Should Do Now to Prepare for COVID-19 o When there are Cases in the Facility e Dialysis Facilities ° Infection Control in Healthcare Settings o Using Personal Protective Equipment o Hand Hygiene o Interim guidance for Outpatient Hemodialysis Facilities https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 6/9 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard Disntettiny BOR spats IMbRPAY Busikeasge sbhosiq bra Bames | CDC ° Patient Screening e Blood and Plasma Facilities © Infection control in Healthcare Settings ° Infection Control and Environmental Management o Using Personal Protective Equipment © Hand Hygiene °o Interim Guidance for Blood and Plasma Collection Facilities e Alternate Care Sites ° Infection Prevention and Control e Dental Settings © Infection control in Healthcare Settings o Using Personal Protective Equipment o Hand Hygiene °o Interim Guidance for Dental Settings e Pharmacies © Infection control in Healthcare Settings © Using Personal Protective Equipment °o Hand Hygiene © Interim Guidance for Pharmacies © Risk-Reduction During Close-Contact Services ¢ Outpatient and ambulatory care facilities Infection control in Healthcare Settings Oo °o Using Personal Protective Equipment Oo Hand Hygiene °o Interim Guidance for Outpatient & Ambulatory Care Settings e Postmortem Care o Using Personal Protective Equipment °o Hand Hygiene 2° Collection and Submission of Postmortem Samples © Cleaning and Waste Disposal © Transportation of Human Remains Community Locations e Critical Infrastructure Employees °o Interim Guidance for Critical Infrastructure Employees © Cleaning and Disinfecting your Facility e Schools and childcare programs © K-12 and Childcare Interim Guidance © Cleaning and Disinfecting your Facility © FAQ for Administrators © Parent and Teacher Checklist e Colleges and universities © Interim Guidance for Colleges & Universities ° Cleaning and Disinfecting your Facility ° Guidance for Student Foreign Travel © Considerations for Administrators e Gatherings and community events o Interim Guidance for Mass Gatherings and Events ~ Web ea tL NL a LL https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 7/9 10/29/2020 Case Reatsnttig-QiBrts rfc KiteninDard DisntEttiny BOR spats IMbRPAY Busikeasge SbhiB1d) brid Blames | CDC Oo Election FOHINg LOCcCauoOn Guidance o Events FAQ ¢ Community- and faith-based organizations o Interim Guidance for Organizations © Cleaning and Disinfecting your Facility e Businesses © Interim Guidance for Businesses e Parks & Rec Facilities © Guidance for Administrators of Parks e Law Enforcement o What Law Enforcement Personnel Need to Know about COVID-19 e Homeless Service Providers © Interim Guidance for Homeless Service Providers e Retirement Homes © Interim Guidance for Retirement Communities © FAQ for Administrators e Correction & Detention Facilities © Interim Guidance for Correction & Detention Facilities °o FAQ for Administrators Home Setting e Preventing Getting Sick © How to Protect Yourself and Others © Cleaning and Disinfecting your Home © Tribal - How to Prevent the Spread of Coronavirus (COVID-19) in Your Home 4 e Running Errands © Shopping for Food and Other Essential Items ° Accepting Deliveries and Takeout ° Banking © Getting Gasoline © Going to the Doctor and Pharmacy e If you are sick © Steps to Help Prevent the Spread of COVID19 if You are Sick Transportation e Ships © Interim Guidance for Ships on Managing Suspected COVID-19 e Airlines © Cleaning Aircraft Carriers o Airline Agents Interim Guidance e Buses © Bus Transit Operator e Rail © Rail Transit Operators © Transit Station Workers e EMS Transport Vehicles °o Interim Guidance for EMS e Taxis and Rideshares ° Keeping Commercial Establishments Safe Restaurants & Bars https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 8/9 10/29/2020 Case Reatsnttig-QMBrts rfc KiteninDard Disntettiny BGR spats IMbRPAY Busikeasge SbRGID bid Bames | CDC e Best Practices from FDA [4 Last Updated May 7, 2020 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/reopen-guidance.html 9/9  ing and Clean tng YOUR FACILITY fe c isin D Wis 10/29/2020 Case 1:20-cv-00849-CKK DoGuzan@mbrbSiittectinghadr Eay/@Me Page 141 of 232 [are Centers for Disease nO Control and Prevention hie. Coronavirus Disease 2019 (COVID-19) Cleaning and Disinfecting Your Facility Disinfecting Your Facility Everyday Steps, Steps When Someone is Sick, and Considerations for Employers Updated July 28, 2020 Print How to clean and disinfect Clean e Wear disposable gloves to clean and disinfect. e Clean surfaces using soap and water, then use disinfectant. ¢ Cleaning with soap and water reduces number of germs, dirt and impurities on the surface. Disinfecting kills germs on surfaces. e Practice routine cleaning of frequently touched surfaces. °o More frequent cleaning and disinfection may be required based on level of use. © Surfaces and objects in public places, such as shopping carts and point of sale keypads should be cleaned and disinfected before each use. e High touch surfaces include: ° Tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, sinks, etc. Disinfect e Disinfect with a household disinfectant on List N: Disinfectants for use against SARs-CoV-2 [% , the virus that causes COVID 19. Follow the instructions on the label to ensure safe and effective use of the product. Many products recommend: © Keeping surface wet for a period of time (see product label). © Precautions such as wearing gloves and making sure you have good ventilation during use of the product. Always read and follow the directions on the label to ensure safe and effective use. e Wear skin protection and consider eye protection for potential splash hazards Ensure adequate ventilation e Use no more than the amount recommended on the label e Use water at room temperature for dilution (unless stated otherwise on the label) e Avoid mixing chemical products e Label diluted cleaning solutions e Store and use chemicals out of the reach of children and pets https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/disinfecting-building-facility.html 1/5 10/29/2020 Case 1:20-cv-00849-CKK DoGuzan@mbrbdiittectinghadr Ealy/@Ne Page 142 of 232 You should never eat, drink, breathe or inject these products into your body or apply directly to your skin as they can cause serious harm. Do not wipe or bathe pets with these products or any other products that are not approved for animal use. See EPA's 6 steps for Safe and Effective Disinfectant Use 4 Special considerations should be made for people with asthma and they should not be present when cleaning and disinfecting is happening as this can trigger asthma exacerbations. Learn more about reducing asthma triggers. e If products on List N [4 are not available, diluted household bleach solutions can be used if appropriate for the surface. Unexpired household bleach will be effective against coronaviruses when properly diluted. °o Use bleach containing 5.25%-8.25% sodium hypochlorite. Do not use a bleach product if the percentage is not in this range or is not specified. © Follow the manufacturer's application instructions for the surface, ensuring a contact time of at least 1 minute. © Ensure proper ventilation during and after application. © Check to ensure the product is not past its expiration date. © Never mix household bleach with ammonia or any other cleanser. This can cause fumes that may be very dangerous to breathe in. e Prepare a bleach solution by mixing: ° 5 tablespoons (1/3rd cup) of 5.25%-8.25% bleach per gallon of room temperature water OR o 4 teaspoons of 5.25%-8.25% bleach per quart of room temperature water e Bleach solutions will be effective for disinfection up to 24 hours. e Alcohol solutions with at least 70% alcohol may also be used. Soft surfaces For soft surfaces such as carpeted floor, rugs, and drapes e Clean the surface using soap and water or with cleaners appropriate for use on these surfaces. e Launder items (if possible) according to the manufacturer's instructions.Use the warmest appropriate water setting and dry items completely. OR e Disinfect with a household disinfectant on List N: Disinfectants for use against SARs-CoV-2 [4 . e Vacuum as usual. Electronics For electronics, such as tablets, touch screens, keyboards, remote controls, and ATM machines ¢ Consider putting a wipeable cover on electronics. e Follow manufacturer's instruction for cleaning and disinfecting. © If no guidance, use alcohol-based wipes or sprays containing at least 70% alcohol. Dry surface thoroughly. , Laundr © y For clothing, towels, linens and other items https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/disinfecting-building-facility.html 2/5 10/29/2020 Case 1:20-cv-00849-CKK DoGuzan@mbrbSiittectinghadr Eale/@Ne Page 143 of 232 e Launder items according to the manufacturer's instructions. Use the warmest appropriate water setting and dry items completely. e Wear disposable gloves when handling dirty laundry from a person who is sick. e Dirty laundry from a person who is sick can be washed with other people’s items. ¢ Do not shake dirty laundry. e Clean and disinfect clothes hampers according to guidance above for surfaces. e Remove gloves, and wash hands right away. Cleaning and disinfecting your building or facility if someone is sick e Close off areas used by the person who is sick. © Companies do not necessarily need to close operations, if they can close off affected areas. e Open outside doors and windows to increase air circulation in the area. e Wait 24 hours before you clean or disinfect. If 24 hours is not feasible, wait as long as possible. e Clean and disinfect all areas used by the person who is sick, such as offices, bathrooms, common areas, shared electronic equipment like tablets, touch screens, keyboards, remote controls, and ATM machines. e Vacuum the space if needed. Use a vacuum equipped with high-efficiency particulate air (HEPA) filter, if available. © Do not vacuum a room or space that has people in it. Wait until the room or space is empty to vacuum, such as at night, for common spaces, or during the day for private rooms. ° Wear disposable gloves to clean and disinfect. For soft (porous) surfaces such as carpeted floors or rugs, clean the surface with detergents or cleaners appropriate for use on these surfaces, according to the textile’s label. After cleaning, disinfect with an appropriate EPA-registered disinfectant on List N: Disinfectants for use against SARS-CoV-2 [4 . Soft and porous materials, like carpet, are generally not as easy to disinfect as hard and non-porous surfaces. EPA has listed a limited number of products approved for disinfection for use on soft and porous materials on List N. Follow the disinfectant manufacturer's safety instructions (Such as wearing gloves and ensuring adequate ventilation), concentration level, application method and contact time. Allow sufficient drying time if vacuum is not intended for wet surfaces. © Temporarily turn off in-room, window-mounted, or on-wall recirculation HVAC to avoid contamination of the HVAC units. © Do NOT deactivate central HVAC systems. These systems tend to provide better filtration capabilities and introduce outdoor air into the areas that they serve. © Consider temporarily turning off room fans and the central HVAC system that services the room or space, so that particles that escape from vacuuming will not circulate throughout the facility. e Once area has been appropriately disinfected, it can be opened for use. © Workers without close contact with the person who is sick can return to work immediately after disinfection. e If more than 7 days since the person who is sick visited or used the facility, additional cleaning and disinfection is not necessary. © Continue routing cleaning and disinfection. This includes everyday practices that businesses and communities normally use to maintain a healthy environment. eh Cleaning and disinfecting outdoor areas ¢ Outdoor areas, like playgrounds in schools and parks generally require normal routine cleaning, but do not require disinfection. © Do not spray disinfectant on outdoor playgrounds- it is not an efficient use of supplies and is not proven to reduce risk of COVID-19 to the public. ° High touch surfaces made of plastic or metal, such as grab bars and railings should be cleaned routinely. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/disinfecting-building-facility.html 3/5 10/29/2020 Case 1:20-cv-00849-CKK DoGuzan@mbrbdiittectinghadr Eay/aMe Page 144 of 232 © Cleaning and disinfection of wooden surfaces (play structures, benches, tables) or groundcovers (mulch, sand) is not recommended. e Sidewalks and roads should not be disinfected. © Spread of COVID-19 from these surfaces is very low and disinfection is not effective. Cy When cleaning e Regular cleaning staff can clean and disinfect community spaces. © Ensure they are trained on appropriate use of cleaning and disinfection chemicals. ¢ Wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash. © Additional personal protective equipment (PPE) might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash. °o Gloves and gowns should be removed carefully to avoid contamination of the wearer and the Surrounding area. e Wash your hands often with soap and water for 20 seconds. °o Always wash immediately after removing gloves and after contact with a person who is sick. © Hand sanitizer: If soap and water are not available and hands are not visibly dirty, an alcohol-based hand sanitizer that contains at least 60% alcohol may be used. However, if hands are visibly dirty, always wash hands with soap and water. Always read and follow the directions on the label to ensure safe and effective use. e Keep hand sanitizers away from fire or flame e For children under six years of age, hand sanitizer should be used with adult supervision e Always store hand sanitizer out of reach of children and pets See FDA's Tips for Safe Sanitizer Use [4 and CDC's Hand Sanitizer Use Considerations e Additional key times to wash hands include: o After blowing one’s nose, coughing, or sneezing. o After using the restroom. © Before eating or preparing food. o After contact with animals or pets. © Before and after providing routine care for another person who needs assistance (e.g., a child). Additional considerations for employers Educate workers performing cleaning, laundry, and trash pick-up to recognize the symptoms of COVID-19. e Provide instructions on what to do if they develop symptoms within 14 days after their last possible exposure to the virus. e Develop policies for worker protection and provide training to all cleaning staff on site prior to providing cleaning tasks. © Training should include when to use PPE, what PPE is necessary, how to properly don (put on), use, and doff (take off) PPE, and how to properly dispose of PPE. e Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace in accordance with OSHA's Hazard Communication standard (29 CFR 1910.1200 [% ). ¢ Comply with OSHA's standards on Bloodborne Pathogens (29 CFR 1910.1030 [4% ), including proper disposal of regulated waste, and PPE (29 CFR 1910.132 [4% ). https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/disinfecting-building-facility.html 4/5 10/29/2020 @® Case 1:20-cv-00849-CKK DoGuxanembrbSiittectinghadr Ealy/@Me Page 145 of 232 Alternative disinfection methods e The efficacy of alternative disinfection methods, such as ultrasonic waves, high intensity UV radiation, and LED blue light against COVID-19 virus is not known. o EPA does not routinely review the safety or efficacy of pesticidal devices, such as UV lights, LED lights, or ultrasonic devices. Therefore, EPA cannot confirm whether, or under what circumstances, such products might be effective against the spread of COVID-19. e CDC does not recommend the use of sanitizing tunnels. There is no evidence that they are effective in reducing the spread of COVID-19. Chemicals used in sanitizing tunnels could cause skin, eye, or respiratory irritation or damage. e¢ CDC only recommends use of the surface disinfectants identified on List N [4 against the virus that causes COVID-19. For facilities that house people overnight e Follow CDC's guidance for colleges and universities. Work with state and local health officials to determine the best way to isolate people who are sick and if temporary housing is needed. e For guidance on cleaning and disinfecting the bedroom/bathroom for someone who is sick, review CDC's guidance on disinfecting your home if someone is sick. More details: Detailed Disinfection Guidance for Community Facilities More information Transport Vehicles Last Updated July 28, 2020 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/disinfecting-building-facility.html 5/5  Intenm Guidance on Managementof Coronavirus Disease 2019 (COVID-19) m 10/29/2020 Case 1:2GuaiceG0 4Agetel of Eoameniue Diss 9 (Bdwd- teil teotionklagen atdnfioh FRB | CDC | we Centers for Disease Lae peg Control and Prevention Coronavirus Disease 2019 (COVID-19) Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities Updated Oct. 21, 2020 Print This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of the date of posting, October 7, 2020. The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the CDC website periodically for updated interim guidance. This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available. Arevision was made 10/21/2020 to reflect the following: Updated language for the close contact definition. Arevision was made 10/7/2020 to reflect the following: Updated criteria for releasing individuals with confirmed COVID-19 from medical isolation (symptom-based approach). Added link to CDC Guidance for Performing Broad-Based Testing for SARS-CoV-2 in Congregate Settings Reorganized information on Quarantine into 4 sections: Contact Tracing, Testing Close Contacts, Quarantine Practices, and Cohorted Quarantine for Multiple Close Contacts A revision was made 7/14/20 to reflect the following: Added testing and contact tracing considerations for incarcerated/detained persons (including testing newly incarcerated or detained persons at intake; testing close contacts of cases; repeated testing of persons in cohorts of quarantined close contacts; testing before release). Linked to more detailed Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities. Added recommendation to consider testing and a 14-day quarantine for individuals preparing for release or transfer to another facility. Added recommendation that confirmed COVID-19 cases may be medically isolated as a cohort. (Suspected cases should be isolated individually.) Reduced recommended frequency of symptom screening for quarantined individuals to once per day (from twice per day). Added recommendation to ensure that PPE donning/doffing stations are set up directly outside spaces requiring PPE. Train staff to move from areas of lower to higher risk of exposure if they must re-use PPE due to shortages. Added recommendation to organize staff assignments so that the same staff are assigned to the same areas of the facility over time, to reduce the risk of transmission through staff movements. Added recommendation to suspend work release programs, especially those within other congregate settings, when there is a COVID-19 case in the correctional or detention facility. Added recommendation to modify work details so that they only include incarcerated/detained persons from a single housing unit. Added considerations for safelv transporting individuals with COVID-19 or their close contacts. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 1/28 10/29/2020 Case 1:2GuaideGO M4 Bete of Coodentue DischS22Q 9 (Edwd- Lil CtACtionk age dtéricd FBRs | CDC TFT a ~ vw e Added considerations for release and re-entry planning in the context of COVID-19. Intended Audience This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e., U.S. Immigration and Customs Enforcement and U.S. Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of SARS-CoV-2 (the virus that causes Coronavirus Disease 2019, or COVID-19) in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings. This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance. This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance. Guidance Overview The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings: JY Operational and communications preparations for COVID-19 ZY Enhanced cleaning/disinfecting and hygiene practices VY Social distancing strategies to increase space between individuals in the facility VY Strategies to limit transmission from visitors VY Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages JY Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors JZ Testing considerations for SARS-CoV-2 ZY Medical isolation of individuals with confirmed and suspected COVID-19 and quarantine of close contacts, including considerations for cohorting when individual spaces are limited VY Healthcare evaluation for individuals with suspected COVID-19 VY Clinical care for individuals with confirmed and suspected COVID-19 VY Considerations for people who are at increased risk for severe illness from COVID-19 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 2/28 10/29/2020 Case 1:2GuaiceGO M4 Bete of Coodentue DischSB20 9 (Edwd- Pil tACtionk age dtérBoi FABRs | CDC Definitions of Commonly Used Terms Close contact of someone with COVID-19 - Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated. * Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (é.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended. Cohorting - In this guidance, cohorting refers to the practice of isolating multiple individuals with laboratory-confirmed COVID-19 together or quarantining close contacts of an infected person together as a group due to a limited number of individual cells. While cohorting those with confirmed COVID-19 is acceptable, cohorting individuals with suspected COVID-19 is not recommended due to high risk of transmission from infected to uninfected individuals. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting as a harm reduction strategy to minimize the risk of disease spread and adverse health outcomes. Community transmission of SARS-CoV-2 - Community transmission of SARS-CoV-2 occurs when individuals are exposed to the virus through contact with someone in their local community, rather than through travel to an affected location. When community transmission is occurring in a particular area, correctional facilities and detention centers are more likely to start seeing infections inside their walls. Facilities should consult with local public health departments if assistance is needed to determine how to define “local community” in the context of SARS-CoV-2 spread. However, because all states have reported cases, all facilities should be vigilant for introduction of the virus into their populations. Confirmed vs. suspected COVID-19 - A person has confirmed COVID-19 when they have received a positive result from a COVID-19 viral test (antigen or PCR test) but they may or may not have symptoms. A person has suspected COVID-19 if they show symptoms of COVID-19 but either have not been tested via a viral test or are awaiting test results. If their test result is positive, suspected COVID-19 is reclassified as confirmed COVID-19. Incarcerated/detained persons - For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e., detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed. Masks - Masks cover the nose and mouth and are intended to help prevent people who have the virus from transmitting it to others, even if they do not have symptoms. CDC recommends wearing cloth masks in public settings where social distancing measures are difficult to maintain. Masks are recommended as a simple barrier to help prevent respiratory droplets from traveling into the air and onto other people when the person wearing the mask coughs, sneezes, talks, or raises their voice. This is called source control. If everyone wears a mask in congregate settings, the risk of exposure to SARS-CoV-2 can be reduced. Anyone who has trouble breathing or is unconscious, incapacitated, younger than 2 years of age or otherwise unable to remove the mask without assistance should not wear a mask (for more details see How to Wear Masks). CDC does not recommend use of masks for source control if they have an exhalation valve or vent). Individuals working under conditions that require PPE should not use a cloth mask when a surgical mask or N95 respirator is indicated (see Table 1). Surgical masks and N95 respirators should be reserved for situations where the wearer needs PPE. Detailed recommendations for wearing a mask can be found here. Medical isolation - Medical isolation refers to separating someone with confirmed or suspected COVID-19 infection to prevent their contact with others to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established criteria for release from isolation, in consultation with clinical providers and public health officials. In this context, isolation https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 3/28 10/29/2020 Case 1:2GuaideGO BAGG of Coodennve DishS22Q 9 (Edwd- Pi tACtionk age aterDon FaBRs | CDC does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion, and should ensure that the conditions in medical isolation spaces are distinct from those in punitive isolation. Quarantine - Quarantine refers to the practice of separating individuals who have had close contact with someone with COVID-19 to determine whether they develop symptoms or test positive for the disease. Quarantine reduces the risk of transmission if an individual is later found to have COVID-19. Quarantine for COVID-19 should last for 14 days after the exposure has ended. Ideally, each quarantined individual should be housed in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, and/or a quarantined individual receives a positive viral test result for SARS-CoV-2, the individual should be placed under medical isolation and evaluated by a healthcare professional. If symptoms do not develop during the 14-day period and the individual does not receive a positive viral test result for SARS- CoV-2, quarantine restrictions can be lifted. (NOTE: Some facilities may also choose to implement a “routine intake quarantine,” in which individuals newly incarcerated/detained are housed separately or as a group for 14 days before being integrated into general housing. This type of quarantine is conducted to prevent introduction of SARS-CoV-2 from incoming individuals whose exposure status is unknown, rather than in response to a known exposure to someone infected with SARS- CoV-2.) Social distancing - Social distancing is the practice of increasing the space between individuals and decreasing their frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals would be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Social distancing can be challenging to practice in correctional and detention environments; examples of potential social distancing strategies for correctional and detention facilities are detailed in the guidance below. Social distancing is vital for the prevention of respiratory diseases such as COVID-19, especially because people who have been infected with SARS-CoV-2 but do not have symptoms can still spread the infection. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication —§ [900 KB, 36 pages]. Staff - In this document, “staff” refers to all public or private-sector employees (e.g., contracted healthcare or food service workers) working within a correctional facility. Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff, including private facility operators. Symptoms - Symptoms of COVID-19 include cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, and new loss of taste or smell. This list is not exhaustive. Other less common symptoms have been reported, including nausea and vomiting. Like other respiratory infections, COVID-19 can vary in severity from mild to severe, and pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations at increased risk for severe illness are not yet fully understood. Monitor the CDC website for updates on symptoms. Facilities with Limited Onsite Healthcare Services Although many large facilities such as prisons and some jails employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care. The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of persons with confirmed and suspected COVID-19 infection and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they identify incarcerated/detained persons or Staff with confirmed or suspected COVID-19, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible. Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with persons with confirmed or suspected COVID-19 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 4/28 10/29/2020 Case 1:2GuaideGO RA GeGHEK of Coomdentue DishS2Q 9 (Edwd-hPihltRCtionk age terion FRBRs | CDC infection. COVID-19 Guidance for Correctional Facilities Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections should be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community. e Operational Preparedness. This guidance is intended to help facilities prepare for potential SARS-CoV-2 transmission in the facility. Strategies focus on operational and communications planning, training, and personnel practices. e Prevention. This guidance is intended to help facilities prevent spread of SARS-CoV-2 within the facility and between the community and the facility. Strategies focus on reinforcing hygiene practices; intensifying cleaning and disinfection of the facility; regular symptom screening for new intakes, visitors, and staff; continued communication with incarcerated/detained persons and staff; social distancing measures; as well as testing symptomatic and asymptomatic individuals in correctional and detention facilities. Refer to the Interim Guidance on Testing for SARS-CoV-2 in Correctional and Detention Facilities for additional considerations regarding testing in correctional and detention settings. e Management. This guidance is intended to help facilities clinically manage persons with confirmed or suspected COVID- 19 inside the facility and prevent further transmission of SARS-CoV-2. Strategies include medical isolation and care of incarcerated/detained persons with COVID-19 (including considerations for cohorting), quarantine and testing of close contacts, restricting movement in and out of the facility, infection control practices for interactions with persons with COVID-19 and their quarantined close contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas where infected persons spend time. Operational Preparedness Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID- 19 and the importance of reporting those symptoms if they develop. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, training staff on proper use of personal protective equipment (PPE) that may be needed in the course of their duties, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life. Communication and Coordination V’ Develop information-sharing systems with partners. ° Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before SARS- CoV-2 infections develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. © Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses. © Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff. o Where possible, put plans in place with other jurisdictions to prevent individuals with confirmed or suspected COVID-19 and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding. © Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known. V/ Review existing influenza, all-hazards, and disaster plans, and revise for COVID-19. © Train staff on the facility’s COVID-19 plan. All personnel should have a basic understanding of COVID-19, how the disease is thought to spread, what the symptoms of the disease are, and what measures are being implemented and can be taken by individuals to prevent or minimize the transmission of SARS-CoV-2. o Ensure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or cohorted), 2) isolate individuals with suspected COVID-19 (individually - do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 5/28 10/29/2020 Case 1:2GuaiceG0 4Agetel of Eoameniue Diss 9 (Edwd- thin ateoionkagen date hop FAB | CDC 7 (ideally individually; cohorted if necessary). The plan should include contingencies for multiple locations if numerous infected individuals and/or close contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for more detailed cohorting considerations. ° Facilities without onsite healthcare capacity should make a plan for how they will ensure that individuals with suspected COVID-19 will be isolated, evaluated, tested, and provided necessary medical care. °0 Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. © Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the disease transmission patterns change. “ Coordinate with local law enforcement and court officials. ° Identify legally acceptable alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of SARS-CoV-2 © Consider options to prevent overcrowding (e.g., diverting new intakes to other facilities with available capacity, and encouraging alternatives to incarceration and other decompression strategies where allowable). ’ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signs throughout the facility and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or have low-vision. °o For all: Practice good cough and sneeze etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating; before and after preparing food; before taking medication; and after touching garbage. Wear masks, unless PPE is indicated. Avoid touching your eyes, nose, or mouth without cleaning your hands first. Avoid sharing eating utensils, dishes, and cups. Avoid non-essential physical contact. © For incarcerated/detained persons: the importance of reporting symptoms to staff Social distancing and its importance for preventing COVID-19 Purpose of quarantine and medical isolation °o For staff: Stay at home when sick If symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting a healthcare provider as soon as possible to determine whether evaluation or testing is needed, and contacting a Supervisor. Personnel Practices V/ Review the sick leave policies of each employer that operates within the facility. © Review policies to ensure that they are flexible, non-punitive, and actively encourage staff not to report to work when sick. © Determine which officials will have the authority to send symptomatic staff home. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 6/28 10/29/2020 Case 1:2GuaiceGO BAGG of Coodentue DishS22Q 9 (Edwd- Pil tRCtionk agen aterBoi FaBRs | CDC VY Identify duties that can be performed remotely. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of SARS-CoV-2 V Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. © Identify critical job functions and plan for alternative coverage. © Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. © Review CDC guidance on safety practices for critical infrastructure workers (including correctional officers, law enforcement officers, and healthcare workers) who continue to work after a potential exposure to SARS-CoV-2. © Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages. V Consider offering revised duties to staff who are at increased risk for severe illness from COVID-19. Persons at increased risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, moderate to severe asthma, heart disease, chronic kidney disease, severe obesity, and diabetes. See CDC's website for a complete list and check regularly for updates as more data become available. © Consult with occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to SARS-CoV-2. / Make plans in advance for how to change staff duty assignments to prevent unnecessary movement between housing units during a COVID-19 o If there are people with COVID-19 inside the facility, it is essential for staff members to maintain a consistent duty assignment in the same area of the facility across shifts to prevent transmission across different facility areas. o Where feasible, consider the use of telemedicine to evaluate persons with COVID-19 symptoms and other health conditions to limit the movement of healthcare staff across housing units. V Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza in a facility can speed the detection of COVID-19 and reduce pressure on healthcare resources. VY Reference the Occupational Safety and Health Administration website [“ for recommendations regarding worker health. / Review CDC's guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer, or share with others. Operations, Supplies, and PPE Preparations VY Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available and have a plan in place to restock as needed. © Standard medical supplies for daily clinic needs o Tissues ° Liquid or foam soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. Ensure a sufficient supply of soap for each individual. © Hand drying supplies °o Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) © Cleaning supplies, including EPA-registered disinfectants effective against SARS-CoV-2 [4 , the virus that causes COVID-19 o Recommended PPE (surgical masks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when surgical masks are acceptable alternatives to N95s. Visit CDC’s website for a calculator to help determine rate of PPE usage. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 7/28 10/29/2020 Case 1:2GuaiéeGO BAGG of Coodentue DishS22Q 9 (Edwd- Pil teCtionkl age atention FBR | CDC ~ © Cloth face masks for source control © SARS-CoV-2 specimen collection and testing supplies / Make contingency plans for possible PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ° See CDC guidance optimizing PPE supplies. V Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting, where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty, and place dispensers at facility entrances/exits and in PPE donning/doffing stations. V Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) © Provide liquid or foam soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing, and ensure that individuals do not share bars of soap. V/ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit-tested for any respiratory protection they will need within the scope of their responsibilities. VY Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. °o See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with persons with COVID-19 or their close contacts. °o Visit CDC’s website for PPE donning and doffing training videos and job aids [2.9 MB, 3 pages]. V/ Prepare to set up designated PPE donning and doffing areas outside all spaces where PPE will be used. These spaces should include: © A dedicated trash can for disposal of used PPE °o Ahand washing station or access to alcohol-based hand sanitizer o A poster demonstrating correct PPE donning and doffing procedures JZ Review CDC and EPA guidance for cleaning and disinfecting of the facility. Prevention Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of SARS-CoV-2 and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies. Because many individuals infected with SARS-CoV-2 do not display symptoms, the virus could be present in facilities before infections are identified. Good hygiene practices, vigilant symptom screening, wearing cloth face masks (if not contraindicated), and social distancing are critical in preventing further transmission. Testing symptomatic and asymptomatic individuals and initiating medical isolation for suspected and confirmed cases and quarantine for close contacts, can help prevent spread of SARS-CoV-2. Oneratinne https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 8/28 10/29/2020 Case 1:2GuaiéeGO RA GeGHEK of Coodentue DishS2Q 9 (Edwd- Pil teCtionkl age ateritica FBR | CDC VwPrTtwMesrveisye V Stay in communication with partners about your facility's current situation. © State, local, territorial, and/or tribal health departments © Other correctional facilities “ Communicate with the public about any changes to facility operations, including visitation programs. VY Limit transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding. o If a transfer is absolutely necessary: =» Perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for suspected COVID-19 infection - including giving the individual a cloth face mask (unless contraindicated), if not already wearing one, immediately placing them under medical isolation, and evaluating them for SARS-CoV-2 #» Ensure that the receiving facility has capacity to properly quarantine or isolate the individual upon arrival. = See Transportation section below on precautions to use when transporting an individual with confirmed or suspected COVID-19. / Make every possible effort to modify staff assignments to minimize movement across housing units and other areas of the facility. For example, ensure that the same staff are assigned to the same housing unit across shifts to prevent cross- contamination from units where infected individuals have been identified to units with no infections. “ Consider suspending work release and other programs that involve movement of incarcerated/detained individuals in and out of the facility, especially if the work release assignment is in another congregate setting, such as a food processing plant. / Implement lawful alternatives to in-person court appearances where permissible. V/ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for possible COVID-19 symptoms, to remove possible barriers to symptom reporting. V Limit the number of operational entrances and exits to the facility. V/ Where feasible, consider establishing an on-site laundry option for staff so that they can change out of their uniforms, launder them at the facility, and wear street clothes and shoes home. If on-site laundry for staff is not feasible, encourage them to change clothes before they leave the work site, and provide a location for them to do so. This practice may help minimize the risk of transmitting SARS-CoV-2 between the facility and the community. Cleaning and Disinfecting Practices V/ Even if COVID-19 has not yet been identified inside the facility or in the surrounding community, implement intensified cleaning and disinfecting procedures according to the recommendations below. These measures can help prevent spread of SARS-CoV-2 if introduced, and if already present through asymptomatic infections. V’ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. o Visit the CDC website for a tool to help implement cleaning and disinfection. °o Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, telephones, and computer equipment). ° Staff should clean shared equipment (e.g., radios, service weapons, keys, handcuffs) several times per day and when the use of the equipment has concluded. o Use household cleaners and EPA-registered disinfectants effective against SARS-CoV-2, the virus that causes COVID- 10 TA ac annranriata far tha ciirfara https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 9/28 10/29/2020 Case 1:2GuaideGO M4 BeGHEK of Coodennve DishS22Q 9 (Edwd- Pil tACtionkl age aterficd FBR | CDC IF LJ ASAPPIVYPIHIAle IYI LIIT SUTTIALE. © Follow label instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use, and around people. Clean according to label instructions to ensure safe and effective use, appropriate product dilution, and contact time. Facilities may consider lifting restrictions on undiluted disinfectants (i.e., requiring the use of undiluted product), if applicable. VY Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day. V’ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed. Hygiene VV Encourage all staff and incarcerated/detained persons to wear a cloth face mask as much as safely possible, to prevent transmission of SARS-CoV-2 through respiratory droplets that are created when a person talks, coughs, or sneezes (“source control”). o Provide masks at no cost to incarcerated/detained individuals and launder them routinely. ° Clearly explain the purpose of masks and when their use may be contraindicated. Because many individuals with COVID-19 do not have symptoms, it is important for everyone to wear masks in order to protect each other: “My mask protects you, your mask protects me.” © Ensure staff know that cloth masks should not be used as a Substitute for surgical masks or N95 respirators that may be required based on an individual’s scope of duties. Cloth masks are not PPE but are worn to protect others in the surrounding area from respiratory droplets generated by the wearer. ° Surgical masks may also be used as source control but should be conserved for situations requiring PPE. V Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms). V’ Provide incarcerated/detained persons and staff no-cost access to: © Soap - Provide liquid or foam soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing, and ensure that individuals are not sharing bars of soap. o Running water, and hand drying machines or disposable paper towels for hand washing © Tissues and (where possible) no-touch trash receptacles for disposal o Face masks V’ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene. VY Communicate that sharing drugs and drug preparation equipment can spread SARS-CoV-2 due to potential contamination of shared items and close contact between individuals. Testing for SARS-CoV-2 Correctional and detention facilities are high-density congregate settings that present unique challenges to implementing testing for SARS-CoV-2, the virus that causes COVID-19. Refer to Testing guidance for details regarding testing strategies in correctional and detention settings. Prevention Practices for Incarcerated/Detained Persons https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 10/28 10/29/2020 Case 1:2GuaiceGO BAGG of Coomdentue DishS2Q 9 (Edwd- Pil teCtionkl age atenfiod FaBRs | CDC V’ Provide cloth face masks (unless contraindicated) and perform pre-intake symptom screening and temperature checks for all new entrants in order to identify and immediately place individuals with symptoms under medical isolation. Screening should take place in an outdoor space prior to entry, in the sally port, or at the point of entry into the facility immediately upon entry, before beginning the intake process. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). © If an individual has symptoms of COVID-19: = Require the individual to wear a mask (as much as possible, use cloth masks in order to reserve surgical masks for situations requiring PPE). Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask. = Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE. = Place the individual under medical isolation and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.) = Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care. See Transport section and coordinate with the receiving facility. © If an individual is an asymptomatic close contact of someone with COVID-19: =® Quarantine the individual and monitor for symptoms at least once per day for 14 days. (See Quarantine section below.) = Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care. See Transport section and coordinate with the receiving facility. VY Consider strategies for testing asymptomatic incarcerated/detained persons without known SARS-CoV-2 exposure for early identification of SARS-CoV-2 in the facility. Implement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of symptoms), and to minimize mixing of individuals from different housing units. Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: o Common areas: = Enforce increased space between individuals in holding cells as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area). ° Recreation: =» Choose recreation spaces where individuals can spread out = Stagger time in recreation spaces (clean and disinfect between groups). = Restrict recreation space usage to a single housing unit per space (where feasible). ° Meals: = Stagger meals in the dining hall (one housing unit at a time; clean and disinfect between groups). =» Rearrange Seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table). = Provide meals inside housing units or cells. o Group activities: = Limit the size of group activities. = Increase space between individuals during group activities. =» Suspend group programs where participants are likely to be in closer contact than they are in their housing environment. = Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out. °o Housing: https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 11/28 10/29/2020 Case 1:2GuaideGO RA Gee of Coodentue DischS22Q 9 (Edwd- Pil tACtionkl agen atericd FaBRs | CDC = If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.) = Arrange bunks so that individuals sleep head to foot to increase the distance between their faces. =» Minimize the number of individuals housed in the same room as much as possible. =» Rearrange scheduled movements to minimize mixing of individuals from different housing areas. © Work details: = Modify work detail assignments so that each detail includes only individuals from a single housing unit. ° Medical: = If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider Staggering individuals’ sick call visits. = Stagger pill line, or stage pill line within individual housing units. = Identify opportunities to implement telemedicine to minimize the movement of healthcare staff across multiple housing units and to minimize the movement of ill individuals through the facility. = Designate a room near the intake area to evaluate new entrants who are flagged by the intake symptom screening process before they move to other parts of the facility. VY Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons. V Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis. As much as possible, provide this information in person and allow opportunities for incarcerated/detained individuals to ask questions (e.g., town hall format if social distancing is feasible, or informal peer-to-peer education). Updates should address: © Symptoms of COVID-19 and its health risks o Reminders to report COVID-19 symptoms to staff at the first sign of illness =» Address concerns related to reporting symptoms (e.g., being sent to medical isolation), explain the need to report symptoms immediately to protect everyone, and explain the differences between medical isolation and solitary confinement. o Reminders to use masks as much as possible © Changes to the daily routine and how they can contribute to risk reduction Prevention Practices for Staff / When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with COVID-19 symptoms while interviewing, escorting, or interacting in other ways, and to wear recommended PPE if closer contact is necessary. V’ Ask staff to keep interactions with individuals with COVID-19 symptoms as brief as possible. V/ Remind staff to stay at home if they are sick.Ensure staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty. VY Consider strategies for testing asymptomatic staff without known SARS-CoV-2 exposure for early identification of SARS- CoV-2 in the facility. © Follow guidance from the Equal Employment Opportunity Commission [4 when offering testing to staff. Any time a positive test result is identified, relevant employers should: # Ensure that the individual is rapidly notified, connected to appropriate medical care, and advised how to self- isolate. = Inform other staff about their possible exposure in the workplace but should maintain the infected employee's confidentiality as required by the Americans with Disabilities Act 4 . https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 12/28 10/29/2020 Case 1:2GuaiéeGO M4 Gee of Coodennve DischS2Q 9 (Edwd- Pil tACtionk agen dterfoi FaBRs | CDC V Perform verbal screening and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. °o Invery small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). °o Send staff home who do not clear the screening process, and advise them to follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. V/ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: © Symptoms of COVID-19 and its health risks © Employers’ sick leave policy V If staff develop a fever or other symptoms of COVID-19 while at work, they should immediately put on a mask (if not already wearing one), inform their supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. V Staff identified as close contacts of someone with COVID-19 should self-quarantine at home for 14 days, unless a shortage of critical staff precludes quarantine. ° Staff identified as close contacts should self-monitor for symptoms and seek testing. o Refer to CDC guidelines for further recommendations regarding home quarantine. © To ensure continuity of operations, critical infrastructure workers (including corrections officers, law enforcement officers, and healthcare staff) may be permitted to continue work following potential exposure to SARS-CoV-2 , provided that they remain asymptomatic and additional precautions are implemented to protect them and others. = Screening: The facility should ensure that temperature and symptom screening takes place daily before the staff member enters the facility. = Regular Monitoring: The staff member should self-monitor under the supervision of their employer's occupational health program. If symptoms develop, they should follow CDC guidance on isolation with COVID- 19 symptoms. = Wear a Mask: The staff member should wear a mask (unless contraindicated) at all times while in the workplace for 14 days after the last exposure (if not already wearing one due to universal use of masks). = Social Distance: The staff member should maintain 6 feet between themselves and others and practice social distancing as work duties permit. = Disinfect and Clean Workspaces: The facility should continue enhanced cleaning and disinfecting practices in all areas including offices, bathrooms, common areas, and shared equipment. V/ Staff with confirmed or suspected COVID-19 should inform workplace and personal contacts immediately. These staff should be required to meet CDC criteria for ending home isolation before returning to work. Monitor CDC guidance on discontinuing home isolation regularly, as circumstances evolve rapidly. Prevention Practices for Visitors VY Restrict non-essential vendors, volunteers, and tours from entering the facility. V If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility. V Require visitors to wear masks (unless contraindicated), and perform verbal screening and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. °o Staff performing temperature checks should wear recommended PPE. o Exclude visitors and volunteers who do not clear the screening process or who decline screening. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 13/28 10/29/2020 Case 1:2GuaiéeGO RAGE of Coodennue DishS2Q 9 (Edwd- Pi tRCtionk agen atG Don FABRs | CDC V Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas. V Provide visitors and volunteers with information to prepare them for screening. © Instruct visitors to postpone their visit if they have COVID-19 symptoms. © If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ° Display signage outside visiting areas explaining the COVID-19 symptom screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy. / Promote non-contact visits: © Encourage incarcerated/detained persons to limit in-person visits in the interest of their own health and the health of their visitors. © Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. © Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors. / Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ° If moving to virtual visitation, clean electronic surfaces regularly after each use. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ° Inform potential visitors of changes to, or suspension of, visitation programs. ° Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ° If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult. NOTE: Suspending visitation should only be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. Visitation is important to maintain mental health. If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors ina way that is not financially burdensome for them. Management If there is an individual with suspected COVID-19 inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing individuals with suspected or confirmed COVID-19 under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE. Testing symptomatic and asymptomatic individuals (incarcerated or detained individuals and staff) and initiating medical isolation for suspected and confirmed cases and quarantine for close contacts, can help prevent spread of SARS-CoV-2 in correctional and detention facilities. Continue following recommendations outlined in the Preparedness and Prevention sections above. Operations VY Coordinate with state, local, tribal, and/or territorial health departments. When an individual has suspected or confirmed COVID-19, notify public health authorities and request any necessary assistance with medical isolation, evaluation, and clinical care, and contact tracing and quarantine of close contacts. See Medical Isolation, Quarantine and Clinical Care sections below. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 14/28 10/29/2020 Case 1:2GuaiceGO M4 eG of Coomentue DishS22Q 9 (Edwd- Pil tRCtionk agen atGriliod FRBRs | CDC VY Implement alternate work arrangements deemed feasible in the Operational Preparedness section. V/ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release), unless necessary for medical evaluation, medical isolation/quarantine, health care, extenuating security concerns, release, or to prevent overcrowding. V Set up PPE donning/doffing stations as described in the Preparation section. V/ If possible, consider quarantining all new intakes for 14 days before they enter the facility's general population (separately from other individuals who are quarantined due to contact with someone who has COVID-19). This practice is referred to as routine intake quarantine. V Consider testing all newly incarcerated/detained persons before they join the rest of the population in the correctional or detention facility. V/ Minimize interactions between incarcerated/detained persons living in different housing units, to prevent transmission from one unit to another. For example, stagger mealtimes and recreation times, and consider implementing broad movement restrictions. V’ Ensure that work details include only incarcerated/detained persons from a single housing unit, supervised by staff who are normally assigned to the same housing unit. °o If a work detail provides goods or services for other housing units (e.g., food service or laundry), ensure that deliveries are made with extreme caution. For example, have a staff member from the work detail deliver prepared food to a set location, leave, and have a staff member from the delivery location pick it up. Clean and disinfect all coolers, carts, and other objects involved in the delivery. V Incorporate COVID-19 prevention practices into release planning. © Consider implementing a release quarantine (ideally in single cells) for 14 days prior to individuals’ projected release date. © Consider testing individuals for SARS-CoV-2 before release, particularly if they will be released to a congregate setting or to a household with persons at increased risk for severe illness from COVID-19. ° Screen all releasing individuals for COVID-19 symptoms and perform a temperature check (See Screening section below.) = If an individual does not clear the screening process, follow the protocol for suspected COVID-19 - including giving the individual a mask, if not already wearing one, immediately placing them under medical isolation, and evaluating them for SARS-CoV-2 testing. # If the individual is released from the facility before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care. = Before releasing an incarcerated/detained individual who has confirmed or suspected COVID-19, or who is a close contact of someone with COVID-19, contact local public health officials to ensure they are aware of the individual’s release and anticipated location. If the individual will be released to a community-based facility, such as a homeless shelter, contact the facility's staff to ensure adequate time for them to prepare to continue medical isolation or quarantine as needed. V’ Incorporate COVID-19 prevention practices into re-entry programming. o Ensure that facility re-entry programs include information on accessing housing, social services, mental health services, and medical care within the context of social distancing restrictions and limited community business operations related to COVID-19. » Provide individuals about to be released with COVID-19 prevention information, hand hygiene supplies, and masks. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 15/28 10/29/2020 Case 1:2GuaideGO M4 GeGHEK of Coomennue DishS22Q 9 (Edwd- Pi tRCtionk age atGiod FABRs | CDC # Link individuals who need medication-assisted treatment for opioid use disorder to substance use, harm reduction, and/or recovery support systems [4 . If the surrounding community is under movement restrictions due to COVID-19, ensure that referrals direct releasing individuals to programs that are continuing operations. = Link releasing individuals to Medicaid enrollment and healthcare resources [4 , including continuity of care for chronic conditions that may place an individual at increased risk for severe illness from COVID-19. =» When possible, encourage releasing individuals to seek housing options among their family or friends in the community, to prevent crowding in other congregate settings such as homeless shelters. When linking individuals to shared housing, link preferentially to accommodations with the greatest capacity for social distancing. Hygiene V’ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility (see above). “% Continue to emphasize practicing good hand hygiene and cough etiquette (see above). Cleaning and Disinfecting Practices V Continue adhering to recommended cleaning and disinfection procedures for the facility at large (see above). V Reference specific cleaning and disinfection procedures for areas where individuals with COVID-19 spend time (see below). Management of Incarcerated/Detained Persons with COVID-19 symptoms NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that individuals with suspected COVID-19 will be effectively isolated, evaluated, tested (if indicated), and given care. V Staff interacting with incarcerated/detained individuals with COVID-19 symptoms should wear recommended PPE (see Table 1). V If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having symptomatic individuals walk through the facility to be evaluated in the medical unit. V Incarcerated/detained individuals with COVID-19 symptoms should wear a mask (if not already wearing one, and unless contraindicated) and should be placed under medical isolation immediately. See Medical Isolation section below. V Medical staff should evaluate symptomatic individuals to determine whether SARS-CoV-2 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well. Incarcerated/detained persons with symptoms are included in the high-priority group for testing in CDC's recommendations due to the high risk of transmission within congregate settings. o If the individual’s SARS-CoV-2 test is positive, continue medical isolation. (See Medical Isolation section below.) o If the SARS-CoV-2 test is negative, the individual can be returned to their prior housing assignment unless they require further medical assessment or care or if they need to be quarantined as a close contact of someone with COVID-19. V“ Work with public health or private labs, as available, to access testing supplies or services. Medical Isolation of Individuals with Confirmed or Suspected COVID-19 NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective medical isolation, should coordinate with local public Dn a a Se han a DP A a te fe ee ed ed ee ol https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 16/28 10/29/2020 Case 1:2GuaideGO M4 GeGHEK of Coodentve DishS2Q 9 (Edwd- Pi tRCtionk agen atGBoi FABRs | CDC neaitn O1ficials tO ensure tnat inaiviauadls witn contirmea Or suspected CUVIL-1y¥ will be appropriately isolatea, evdiuatea, tested, and given care. V As soon as an individual develops symptoms of COVID-19 or tests positive for SARS-CoV-2 they should be given a mask (if not already wearing one and if it can be worn safely), immediately placed under medical isolation in a separate environment from other individuals, and medically evaluated. VY Ensure that medical isolation for COVID-19 is distinct from punitive solitary confinement of incarcerated/detained individuals, both in name and in practice. Because of limited individual housing spaces within many correctional and detention facilities, infected individuals are often placed in the same housing spaces that are used for solitary confinement. To avoid being placed in these conditions, incarcerated/detained individuals may be hesitant to report COVID-19 symptoms, leading to continued transmission within shared housing spaces and, potentially, lack of health care and adverse health outcomes for infected individuals who delay reporting symptoms. Ensure that medical isolation is operationally distinct from solitary confinement, even if the same housing spaces are used for both. For example: e Ensure that individuals under medical isolation receive regular visits from medical staff and have access to mental health services. e Make efforts to provide similar access to radio, TV, reading materials, personal property, and commissary as would be available in individuals’ regular housing units. e Consider allowing increased telephone privileges without a cost barrier to maintain mental health and connection with others while isolated. ¢ Communicate regularly with isolated individuals about the duration and purpose of their medical isolation period. V/ Keep the individual's movement outside the medical isolation space to an absolute minimum. © Provide medical care to isolated individuals inside the medical isolation space, unless they need to be transferred to a healthcare facility. See Infection Control and Clinical Care sections for additional details. o Serve meals inside the medical isolation space. °o Exclude the individual from all group activities. o Assign the isolated individual(s) a dedicated bathroom when possible. When a dedicated bathroom is not feasible, do not reduce access to restrooms or showers as a result. Clean and disinfect areas used by infected individuals frequently on an ongoing basis during medical isolation. V Ensure that the individual is wearing a mask if they must leave the medical isolation space for any reason, and whenever another individual enters. Provide clean masks as needed. Masks should be washed routinely and changed when visibly soiled or wet. V If the facility is housing individuals with confirmed COVID-19 as a cohort: © Only individuals with laboratory-confirmed COVID-19 should be placed under medical isolation as a cohort. Do not cohort those with confirmed COVID-19 with those with suspected COVID-19, with close contacts of individuals with confirmed or suspected COVID-19, or with those with undiagnosed respiratory infection who do not meet the criteria for suspected COVID-19. © Ensure that cohorted groups of people with confirmed COVID-19 wear masks whenever anyone else (including Staff) enters the isolation space. (Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask.) o When choosing a space to cohort groups of people with confirmed COVID-19, use a well-ventilated room with solid walls and a solid door that closes fully. o Use one large space for cohorted medical isolation rather than several smaller spaces. This practice will conserve PPE and reduce the chance of cross-contamination across different parts of the facility. V If possible, avoid transferring infected individual(s) to another facility unless necessary for medical care. If transfer is necessary, see Transport section for safe transport guidance. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 17/28 10/29/2020 Case 1:2GuaideGO BAGG of Coodennve DishS22Q 9 (Edwd- Pil tACtionkl agen aténtion FBRs | CDC V Staff assignments to isolation spaces should remain as consistent as possible, and these staff should limit their movements to other parts of the facility as much as possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility. o If staff must serve multiple areas of the facility, ensure that they change PPE when leaving the isolation space. Ifa shortage of PPE supplies necessitates reuse, ensure that staff move only from areas of low to high exposure risk while wearing the same PPE, to prevent cross-contamination. For example, start in a housing unit where no one is known to be infected, then move to a space used as quarantine for close contacts, and end in an isolation unit. Ensure that staff are highly trained in infection control practices, including use of recommended PPE. V Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: © Cover their mouth and nose with a tissue when they cough or sneeze © Dispose of used tissues immediately in the lined trash receptacle © Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked. V Maintain medical isolation at least until CDC criteria for discontinuing home-based isolation have been met. These criteria have changed since CDC corrections guidance was originally issued and may continue to change as new data become available. Monitor the sites linked below regularly for updates. This content will not be outlined explicitly in this document due to the rapid pace of change. ° CDC's recommended strategy for release from home-based isolation can be found in the Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings Interim Guidance. © Detailed information about the data informing the symptom-based strategy, and considerations for extended isolation periods for persons in congregate settings including corrections, can be found here. ° If persons will require ongoing care by medical providers, discontinuation of transmission-based precautions (PPE) should be based on similar criteria found here. Cleaning Spaces where Individuals with COVID-19 Spend Time VY Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.) / Thoroughly and frequently clean and disinfect all areas where individuals with confirmed or suspected COVID-19 spend time. o After an individual has been medically isolated for COVID-19, close off areas that they have used prior to isolation. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions) before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets. © Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section). © Clean and disinfect areas used by infected individuals on an ongoing basis during medical isolation. V’ Hard (non-porous) surface cleaning and disinfection o If surfaces are soiled, they should be cleaned using a detergent or soap and water prior to disinfection. © Consult the list of products that are EPA-approved for use against the virus that causes COVID-19 [4 . Follow the manufacturer's instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.). https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 18/28 10/29/2020 Case 1:2GuaideGO BAGG of Coodennve DishS2Q 9 (Edwd- Pi tRCtionk agen atGrtticd F&BRs | CDC °o If EPA-approved disinfectants are not available, diluted household bleach solutions can be used if appropriate for the surface. Unexpired household bleach will be effective against coronaviruses when properly diluted. = Use bleach containing 5.25%-8.25% sodium hypochlorite. Do not use a bleach product if the percentage is not in this range or is not specified. = Follow the manufacturer's application instructions for the surface, ensuring a contact time of at least 1 minute. » Ensure proper ventilation during and after application. =» Check to ensure the product is not past its expiration date. =» Never mix household bleach with ammonia or any other cleanser. This can cause fumes that may be very dangerous to breathe in. o Prepare a bleach solution by mixing: = 5 tablespoons (1/3 cup) of 5.25%-8.25% bleach per gallon of room temperature water OR =» 4 teaspoons of 5.25%-8.25% bleach per quart of room temperature water © Bleach solutions will be effective for disinfection up to 24 hours. © Alcohol solutions with at least 70% alcohol may also be used. V/ Soft (porous) surface cleaning and disinfection © For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning: = If the items can be laundered, launder items in accordance with the manufacturer's instructions using the warmest appropriate water setting for the items and then dry items completely. = Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 [4 and are Suitable for porous surfaces. VY Electronics cleaning and disinfection © For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present. = Follow the manufacturer's instructions for all cleaning and disinfection products. = Consider use of wipeable covers for electronics. = If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids. Additional information on cleaning and disinfection of communal facilities such can be found on CDC's website. V Food service items. Individuals under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed following food safety requirements. Individuals handling used food service items should clean their hands immediately after removing gloves. V Laundry from individuals with COVID-19 can be washed with other's laundry. © Individuals handling laundry from those with COVID-19 should wear a mask, disposable gloves, and a gown, discard after each use, and clean their hands immediately after. © Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. Ensure that individuals performing cleaning wear recommended PPE (see PPE section below). o Launder items as appropriate in accordance with the manufacturer's instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. © Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. Transporting Individuals with Confirmed and Suspected COVID-19 and Quarantined Close Contacts https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 19/28 10/29/2020 Case 1:2GuaiéeGO M4 Bete of Coodennue DischS22Q 9 (Edwd- Li tRCtionk agen atGficd F&BRs | CDC V Refer to CDC guidance for Emergency Medical Services (EMS) on safely transporting individuals with confirmed or suspected COVID-19. This guidance includes considerations for vehicle type, air circulation, communication with the receiving facility, and cleaning the vehicle after transport. o If the transport vehicle is not equipped with the features described in the EMS guidance, at minimum drive with the windows down and ensure that the fan is set to high, in non-recirculating mode. If the vehicle has a ceiling hatch, keep it open. V/ Use the same precautions when transporting individuals under quarantine as close contacts of someone with COVID-19. / See Table 1 for the recommended PPE for staff transporting someone with COVID-19. Managing Close Contacts of Individuals with COVID-19 NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space to implement effective quarantine should coordinate with local public health officials to ensure that close contacts of individuals with COVID-19 will be effectively quarantined and medically monitored Contact Tracing 4 To determine who is considered a close contact of an individual with COVID-19, see definition of close contact and the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan —& [12 Kb, 1 page] for more information. “ Contact tracing can be a useful tool to help contain disease outbreaks. When deciding whether to perform contact tracing, consider the following: © Have a plan in place for how close contacts of individuals with COVID-19 will be managed, including quarantine logistics. ° Contact tracing can be especially impactful when: = There is a small number of infected individuals in the facility or in a particular housing unit. Aggressively tracing close contacts can help curb transmission before many other individuals are exposed. = The infected individual is a staff member or an incarcerated/detained individual who has had close contact with individuals from other housing units or with other staff. Identifying those close contacts can help prevent spread to other parts of the facility. = The infected individual is a staff member or an incarcerated/detained individual who has recently visited a community setting. In this situation, identifying close contacts can help reduce transmission from the facility into the community. © Contact tracing may be more feasible and effective in settings where incarcerated/detained individuals have limited contact with others (e.g., celled housing units), compared to settings where close contact is frequent and relatively uncontrolled (e.g., open dormitory housing units). o If there is a large number of individuals with COVID-19 in the facility, contact tracing may become difficult to manage. Under such conditions, consider broad-based testing in order to identify infections and prevent further transmission. © Consult CDC recommendations for Performing Broad-Based Testing for SARS-CoV-2 in Congregate Settings for further information regarding selecting a testing location, ensuring proper ventilation and PPE usage, setting up testing stations and supplies, and planning test-day operations. Testing Close Contacts VY Testing is recommended for all close contacts —§ [12 KB, 1 page] of persons with SARS-CoV-2 infection, regardless of whether the close contacts have symptoms. © Medically isolate those who test positive to prevent further transmission (see Medical Isolation section above). o Asymptomatic close contacts testing negative should be placed under quarantine precautions for 14 days from ale _ _t a4 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 20/28 10/29/2020 Case 1:2GuaiéeGO RA GeGHEK of Coodentue DishS22Q 9 (Edwd- Pil tACtionkl age aténfiod FABRs | CDC their laSt EXPOSUure. Quarantine for Close Contacts (who test negative) V’ Incarcerated/detained persons who are close contacts of someone with confirmed or suspected COVID-19 (whether the infected individual is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days. (Refer to the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan [12 KB, 1 page] for more information): ° If a quarantined individual is tested again during quarantine and they remain negative, they should continue to quarantine for the full 14 days after last exposure and follow all recommendations of local public health authorities. ° If an individual is quarantined due to contact with someone with suspected COVID-19 who is subsequently tested and receives a negative result, they can be released from quarantine. See Interim Guidance on Testing for SARS- CoV-2 in Correctional and Detention Facilities for more information about testing strategies in correctional and detention settings. Y Quarantined individuals should be monitored for COVID-19 symptoms at least once per day including temperature checks. ° See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of someone with COVID-19. ° If an individual develops symptoms for SARS-CoV-2, they should be considered a suspected COVID-19 case, given a mask (if not already wearing one), and moved to medical isolation immediately (individually, and separately from those with confirmed COVID-19 and others with suspected COVID-19) and further evaluated. (See Medical Isolation section above.) If the individual is tested and receives a positive result, they can then be cohorted with other individuals with confirmed COVID-19. % Quarantined individuals can be released from quarantine restrictions if they have not developed COVID-19 symptoms and have not tested positive for SARS-CoV-2 for 14 days since their last exposure to someone who tested positive. V4 Keep a quarantined individual's movement outside the quarantine space to an absolute minimum. ° Provide medical evaluation and care inside or near the quarantine space when possible. ° Serve meals inside the quarantine space. o Exclude the quarantined individual from all group activities. °o Assign the quarantined individual a dedicated bathroom when possible. When providing a dedicated bathroom is not feasible, do not reduce access to restrooms or showers as a result. V Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns. V Ifa quarantined individual leaves the quarantine space for any reason, they should wear a mask (unless contraindicated) as source control, if not already wearing one. © Quarantined individuals housed as a cohort should wear masks at all times (see cohorted quarantine section below). © Quarantined individuals housed alone should wear a mask whenever another individual enters the quarantine space. © Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask. V’ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands immediately after removing gloves. V’ Laundry from quarantined individuals can be washed with others’ laundry. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 21/28 10/29/2020 Case 1:2GuaiéeGO RA BeGHEK of Cooennve DischS22Q 9 (Edwd- Pin tRCtionk agen atGhoi FABRs | CDC © Individuals handling laundry from quarantined persons should wear a mask, disposable gloves, and a gown, discard after each use, and clean their hands immediately after. © Do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. o Launder items as appropriate in accordance with the manufacturer's instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. © Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. V Staff assignments to quarantine spaces should remain as consistent as possible, and these staff should limit their movements to other parts of the facility. These staff should wear recommended PPE based on their level of contact with the individuals under quarantine (see PPE section below). o If staff must serve multiple areas of the facility, ensure that they change PPE when leaving the quarantine space. If a shortage of PPE supplies necessitates reuse, ensure that staff move only from areas of low to high exposure risk while wearing the same PPE, to prevent cross-contamination. ° Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to someone with COVID-19) do not need to wear PPE but should still wear a mask as source control. Cohorted Quarantine for Multiple Close Contacts (who test negative) V Facilities should make every possible effort to individually quarantine close contacts of individuals with confirmed or suspected COVID-19. Cohorting multiple quarantined close contacts could transmit SARS-CoV-2 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. V% In order of preference, multiple quarantined individuals should be housed: © IDEAL: Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ° Separately, in single cells with solid walls but without solid doors © As acohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions © Asacohort, ina large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door © Asacohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) © Asacohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. © Asacohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed - referred to as “quarantine in place”). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. °o Safely transfer to another facility with capacity to quarantine in one of the above arrangements. (See Transport) (NOTE - Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.) If the ideal choice does not exist in a facility, use the next best alternative as a harm reduction approach. V If cohorting close contacts is absolutely necessary, be especially mindful of those who are at increased risk for severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure for the individuals with increased risk of severe illness. (For example, intensify social distancing strategies for individuals with increased risk.) V/ If single cells for isolation (of those with suspected COVID-19) and quarantine (of close contacts) are limited, prioritize them in rank order as follows to reduce the risk of further SARS-CoV-2 transmission and adverse health outcomes: https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 22/28 10/29/2020 Case 1:2GuaideGO RA BeGHEK of Coomennue DischS2Q 9 (Edwd- Pin tRCtionk agen tG God FaBRs | CDC © Individuals with suspected COVID-19 who are at increased risk for severe illness from COVID-19 © Others with suspected COVID-19 © Quarantined close contacts of someone with COVID-19 who are themselves at increased risk for severe illness from COVID-19 JV lf a facility must cohort quarantined close contacts, all cohorted individuals should be monitored closely for symptoms of COVID-19, and those with symptoms should be placed under medical isolation immediately. V/ If an individual who is part of a quarantined cohort becomes symptomatic: ° If the individual is tested for SARS-CoV-2 and receives a positive result: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. © If the individual is tested for SARS-CoV-2 and receives a negative result: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantine cohort for the remainder of the quarantine period as their symptoms and diagnosis allow. ° If the individual is not tested for SARS-CoV-2: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. VY Consider re-testing all individuals in a quarantine cohort every 3-7 days, and immediately place those who test positive under medical isolation. This strategy can help identify and isolate infected individuals early and minimize continued transmission within the cohort. VY Consider testing all individuals quarantined as close contacts of someone with suspected or confirmed COVID-19 at the end of the 14-day quarantine period, before releasing them from quarantine precautions. V’ Do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started. Doing so would complicate the calculation of the cohort’s quarantine period, and potentially introduce new sources of infection. VY Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility's general population as a general rule (not because they were exposed to someone with COVID-19). Under this scenario, do not mix individuals undergoing routine intake quarantine with those who are quarantined due to COVID-19 exposure. Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms V/ Provide clear information to incarcerated/detained persons about the presence of COVID-19 within the facility, and the need to increase social distancing and maintain hygiene precautions. © As muchas possible, provide this information in person and allow opportunities for incarcerated/detained individuals to ask questions (e.g., town hall format if social distancing is feasible, or informal peer-to-peer education). © Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf or hard-of-hearing, blind, or have low-vision. V If individuals with COVID-19 have been identified among staff or incarcerated/detained persons anywhere in a facility, consider implementing regular symptom screening and temperature checks in housing units that have notyet identified infections, until no additional infections have been identified in the facility for 14 days. Because some incarcerated/detained persons are hesitant to report symptoms, it is very important to monitor for symptoms closely even though doing so is resource intensive. See Screening section for a procedure to safely perform a temperature check. V Consider additional options to intensify social distancing within the facility. Management Strategies for Staff https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 23/28 10/29/2020 Case 1:2GuaiéeGO BAGG of Coodennve DishS22Q 9 (Edwd- Pil tACtionk agen dterDoa FRBRs | CDC V Provide clear information to staff about the presence of COVID-19 within the facility, and the need to enforce universal use of masks (unless contraindicated) and social distancing and to encourage hygiene precautions. © As muchas possible, provide this information in person (if social distancing is feasible) and allow opportunities for Staff to ask questions. V Staff identified as close contacts of someone with COVID-19 should be tested for SARS-CoV-2 and self-quarantine at home for 14 days, unless a shortage of critical staff precludes quarantine of those who are asymptomatic (see considerations for critical infrastructure workers). Refer to the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan §§ [12 KB, 1 page] for more information about contact tracing. © Close contacts should self-monitor for symptoms and seek testing. © Refer to CDC guidelines for further recommendations regarding home quarantine. V’ Staff who have confirmed or suspected COVID-19 should meet CDC criteria for ending home isolation before returning to work. Monitor CDC guidance on discontinuing home isolation regularly, as circumstances evolve rapidly. Infection Control Infection control guidance below is applicable to all types of correctional and detention facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/detained persons may have with someone with confirmed or suspected COVID-19. V Allindividuals who have the potential for direct or indirect exposure to someone with COVID-19 or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates. ° Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs. © Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning). V/ Staff should exercise caution and wear recommended PPE when in contact with individuals showing COVID-19 symptoms. Contact should be minimized to the extent possible until the infected individual is wearing a mask (if not already wearing one and if not contraindicated) and staff are wearing PPE. V/ Refer to PPE section to determine recommended PPE for individuals in contact with individuals with COVID-19, their close contacts, and potentially contaminated items. / Remind staff about the importance of limiting unnecessary movements between housing units and through multiple areas of the facility, to prevent cross-contamination. / Ensure that staff and incarcerated/detained persons are trained to doff PPE after they leave a space where PPE is required, as needed within the scope of their duties and work details. Ideally, staff should don clean PPE before entering a different space within the facility that also requires PPE. o If PPE shortages make it impossible for staff to change PPE when they move between different spaces within the facility, ensure that they are trained to move from areas of low exposure risk (“clean”) to areas of higher exposure risk (“dirty”) while wearing the same PPE, to minimize the risk of contamination across different parts of the facility. Clinical Care for Individuals with COVID-19 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 24/28 10/29/2020 Case 1:2GuaiéeGO BAGG of Coodentue DishS22Q 9 (Edwd- Pil tRCtionk agen dterilion FBR | CDC V Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ° Ifa facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital (including notifying the facility/hospital in advance). See Transport section. The initial medical evaluation should determine whether a symptomatic individual is at increased risk for severe illness from COVID-19. Persons at increased risk may include older adults and persons of any age with serious underlying medical conditions, including chronic kidney disease, serious heart conditions, and Type-2 diabetes. See CDC’s website for a complete list and check regularly for updates as more data become available to inform this issue. © Based on available information, pregnant people seem to have the same risk of COVID-19 as adults who are not pregnant. However, much remains unknown about the risks of COVID-19 to the pregnant person, the pregnancy, and the unborn child. Prenatal and postnatal care is important for all pregnant people, including those who are incarcerated/detained. Visit the CDC website for more information on pregnancy and breastfeeding in the context of COVID-19. V/ Staff evaluating and providing care for individuals with confirmed or suspected COVID-19 should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. V Healthcare staff should evaluate persons with COVID-19 symptoms and those who are close contacts of someone with COVID-19 in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the individual being evaluated is wearing a mask. ° If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having symptomatic individuals walk through the facility to be evaluated in the medical unit. V’ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza). However, presence of another illness such as influenza does not rule out COVID-19. V/ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, use a language line or provide a trained interpreter when possible. Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons VY Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with individuals with confirmed and suspected COVID-19. Ensure strict adherence to OSHA PPE requirements. o Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95 respirator) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer's respiratory protection program. If individuals wearing N95 respirators have facial hair, it should not protrude under the respirator seal, or extend far enough to interfere with the device's valve function (see OSHA regulations [4% ). © For PPE training materials and posters, visit the CDC website on Protecting Healthcare Personnel. VY Ensure that all staff are trained to perform hand hygiene after removing PPE. V Ensure that PPE is readily available where and when needed, and that PPE donning/doffing/disposal stations have been set up as described in the Preparation section. “ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with someone with COVID-19 and their close contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 25/28 10/29/2020 Case 1:2GuaiceGO BAGG of Coodentue DishS22Q 9 (Edwd- Lil tRCtionk agen dterifica FBR | CDC o N95 respirator N95 respirators should be prioritized when staff anticipate contact with infectious aerosols or droplets from someone with COVID-19. See below for guidance on when surgical masks are acceptable alternatives for N95s. Individuals working under conditions that require an N95 respirator should not use a cloth mask when an N95 is indicated. © Surgical mask Worn to protect the wearer from splashes, sprays, and respiratory droplets generated by others. (NOTE: Surgical masks are distinct from cloth masks, which are not PPE but are worn to protect others in the surrounding area from respiratory droplets generated by the wearer. Individuals working under conditions that require a surgical mask should not use a cloth mask when a surgical mask is indicated.) o Eye protection Goggles or disposable face shield that fully covers the front and sides of the face. © Asingle pair of disposable patient examination gloves Gloves should be changed if they become torn or heavily contaminated. © Disposable medical isolation gown or single-use/disposable coveralls, when feasible = If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with an individual with confirmed or suspected COVID-19, and that clothing is changed as soon as possible and laundered. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label. = If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, activities where splashes and sprays are anticipated, and high-contact activities that provide opportunities for transfer of pathogens to the hands and clothing of the wearer. V’ Note that shortages of all PPE categories have been seen during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category (including strategies to reuse PPE safely) can be found on CDC's website: oO Strategies for optimizing the supply of N95 respirators = Based on local and regional situational analysis of PPE supplies, surgical masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. oO Strategies for optimizing the supply of surgical masks =» Reserve surgical masks for individuals who need PPE. Issue cloth masks to incarcerated/detained persons and Staff as source control, in order to preserve surgical mask supply (see recommended PPE). [e) Strategies for optimizing the supply of eye protection [e) Strategies for optimizing the supply of gowns/coveralls ° Strategies for optimizing the supply of disposable medical gloves Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional or Detention Facility during the COVID-19 Response N95 Surgical Eye Gown/ Classification of Individual Wearing PPE respirator mask Protection Gloves Coveralls Incarcerated/Detained Persons Asymptomatic incarcerated/detained persons (under Use cloth masks as source control (NOTE: cloth face quarantine as close contacts of someone with COVID- coverings are NOT PPE and may not protect the wearer. 19) Prioritize cloth masks for source control among all persons who do not meet criteria for N95 or surgical masks, and to conserve surgical masks for situations that require PPE.) https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 26/28 10/29/2020 Case 1:2GuaiéeGO BAGG of Coodentue DishS22Q 9 (Edwd- Pil tRCtionk agen dterBoi FaBRs | CDC N95 Surgical Eye Gown/ Classification of Individual Wearing PPE respirator mask Protection Gloves Coveralls Incarcerated/detained persons who have confirmed or suspected COVID-19, or showing symptoms of COVID-19 Incarcerated/detained persons handling laundry or X X used food service items from someone with COVID-19 or their close contacts Incarcerated/detained persons cleaning an area Additional PPE may be needed based =X X where someone with COVID-19 spends time on the product label. See CDC guidelines for more details. Staff Staff having direct contact with asymptomatic Surgical mask, eye protection, incarcerated/detained persons under quarantine as and gloves as local supply and close contacts of someone with COVID-19* (but not scope of duties allow. performing temperature checks or providing medical care) Staff performing temperature checks on any group of X X X people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic quarantined persons Staff having direct contact with (including transport) X** X X X or offering medical care to individuals with confirmed or suspected COVID-19 (See CDC infection control guidelines). For recommended PPE for staff performing collection of specimens for SARS-CoV-2 testing see the Standardized procedure for SARS-CoV- 2 testing in congregate settings. Staff present during a procedure on someone with X X X X confirmed or suspected COVID-19 that may generate infectious aerosols (See CDC infection control guidelines) Staff handling laundry or used food service items X X from someone with COVID-19 or their close contacts Staff cleaning an area where someone with COVID-19 Additional PPE may be needed based =X X spends time on the product label. See CDC guidelines for more details. Classification of Individual Wearing PPE * A NIOSH-approved N95 respirator is preferred. However, based on local and regional situational analysis of PPE supplies, surgical masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff. Verbal Screening and Temperature Check Protocols for Incarcerated/Netained Persons. Staff. and Visitors https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 27/28 10/29/2020 Case 1:2GuaiceGO BAGG of Coodentue DishS22Q 9 (Edwd- Pil tRCtionk agen dtentiod FBR | CDC The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. V Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions: © Today or in the past 24 hours, have you had any of the following symptoms? » Fever, felt feverish, or had chills? =» Cough? = Difficulty breathing? °o /n the past 14 days, have you had close contact with a person known to be infected with the novel coronavirus (COVID-19)? V/ The following is a protocol to safely check an individual’s temperature: © Wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer with at least 60% alcohol. © Put ona surgical mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves © Check individual’s temperature © If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non- contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned with an alcohol wipe (or isopropyl alcohol on a cotton swab) between each individual. o Remove and discard PPE © Wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer with at least 60% alcohol V’ Ifa physical barrier or partition is used to protect the screener rather than a PPE-based approach, the following protocol can be used. (During screening, the screener stands behind a physical barrier, such as a glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when the person being screened sneezes, coughs, or talks.) e Wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer with at least 60% alcohol. e Put ona single pair of disposable gloves. e Check the individual’s temperature, reaching around the partition or through the window. Make sure the screener’s face Stays behind the barrier at all times during the screening. e If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned with an alcohol wipe (or isopropyl alcohol on a cotton swab) between each individual. e Remove and discard gloves. Last Updated Oct. 21, 2020 https:/Avww.cdc.gov/coronavirus/201 9-ncov/community/correction-detention/guidance-correctional-detention.html 28/28  ENG INEERING INC, ONSITE AUDIT INSPEC TIO N REPO RT Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 176 of 232 ONSITE AUDIT INSPECTION REPORT ENVIRONMENTAL CONDITIONS INSPECTION FOR SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS (DC DOC), CENTRAL DETENTION FACILITY (CDF) AND CORRECTIONAL TREATMENT FACILITY (CTF) JULY 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14* Street NW, 7* Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302, Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 177 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of this protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020, and the procedures described in the protocol were subsequently implemented later that week. AUDIT OVERVIEW SCOPE PHE was tasked with inspecting the cleaning procedures used by two independent contractors at two DC DOC facilities after implementation of the procedures described in the Draft Protocol. PHE performed these inspections on June 29 and July 1, 2020. This report documents observed deviations, omissions, inconsistencies, and deficiencies, along with corrective action recommendations. CENTRAL DETENTION FACILITY On June 29, 2020, PHE inspected implementation of the cleaning procedures of Rock Solid District Group, LLC at the DC DOC’s Central Detention Facility (CDF). An In-Brief Meeting was held prior to the inspection and was attended by: e Ms. Gitana Stewart-Ponder (DOC) e Ms. Gloria Robertson (DOC) e §=6Sgt. D. Worthan (DOC) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) At the conclusion of the inspection, an Out-Brief Meeting was held. This meeting was attended by: e Mr. Lennard Johnson, Warden (DOC) e Ms. Kathy Landerkin Deputy Warden (DOC) e =©6Ms. Rena Myles (DOC) e Ms. Gloria Roberts (DOC) e =6Ms. Gitana Stewart-Ponder (DOC) (via telephone) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) Potomac-Hudson Engineering, Inc. ak Page 2 a Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 178 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report CORRECTIONAL TREATMENT FACILITY On July 1, 2020, PHE inspected the cleaning procedures of Spectrum Management, LLC at the DC DOC’s Correctional Treatment Facility (CTF). An Out-Brief Meeting was held at the conclusion of the inspection and was attended by: e Ms. Gloria Robertson (DOC) e §6Ms. Jackie Smith (DOC) e =6Ms. Florinda Eaglin (DOC) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) DRAFT SUMMARY OF FINDINGS Table 1 summarizes findings observed during the June 29 and July 1, 2020 onsite inspections. The table also provides recommended actions to correct the findings. Following the table is a brief Action Plan with recommendations for implementing the corrective actions identified in Table 1. Potomac-Hudson Engineering, Inc. ak Page 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 179 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. The contractor did not consistently allow for adequate wetting of the floor during mopping. On several occasions it was observed that a wet mop was used for an overly extensive period of time before being re-wetted. This resulted in portions of the floor being inadequately damped with a sufficient amount of disinfectant to ensure a 45 second contact time. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or are allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Ensure that mops are frequently wetted in the slop bucket during floor mopping. Consider requiring the contractor to provide additional mop buckets and dollies so that each person mopping has access to their own dolly that can be toted along with them as they mop. Based on site observations, there was an insufficient number of mop dollies. This required the dollies to remain in a centralized position and discouraged floor cleaners from more frequently wetting their mop heads. Additionally, the mop buckets themselves, which have their own sets of wheels on them, should be removed from the dollies and transported with those mopping the floors. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. Potomac-Hudson Engineering, Inc Page 4 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 180 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION Currently, the cleaning contractor is only responsible for disinfecting the floor and doorknobs/door handles in the basement. Although DOC staff are responsible for the remaining areas, it is unclear if they know all the surfaces they need to clean and/or if they are aware of the proper contact time for the disinfectant. The contractor was observed cleaning windows, mirrors, and other glass surfaces with an ammonium-based window cleaner (Ecolab Oasis 255SF Industrial Window Cleaner) as opposed to an EPA-registered product approved for COVID-19. In some cases, contractor personnel was observed cleaning doorknobs, door handles, and other frequently-touched surfaces with a hand sanitizer. While this is technically sufficient for disinfection, it is not be applied consistently in all areas and the proper contact time may or may not be properly implemented. The contractor (Summit) that currently provides food service duties in the cafeteria is solely responsible for cleaning and disinfecting that area of the facility. It is not known if they are aware of or are following the proper protocols for disinfection in a manner consistent with the other areas of the facility. CONDITIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. Although this contractor (Spectrum) generally applied greater volumes of the disinfectant with the sprayers in a given area as compared to Rock Solid, it was still observed to be insufficient. Ensure that staff cleaning personnel are familiar with and are properly implementing the cleaning protocols currently being provided to the third- party contractors. Test the hydrogen peroxide-based disinfectant on glass surfaces. If acceptable, consider using the disinfectant on these surfaces instead of, or in addition to, traditional window cleaning chemicals. Ensure that all chemicals and cleaning procedures are consistently applied throughout the facility. If hand sanitizer is to be used on a regular basis for these surfaces, they should be documented in the cleaning protocol. Ensure that Summit is performing proper disinfection in a manner that is consistent with or exceeds the procedures being used elsewhere at the facility. Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or be allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Potomac-Hudson Engineering, Inc Page 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 181 of 232 DC Department of Corrections July 2020 Environmental Conditions Inspection Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. The contractor was not always performing its duties in a consistent manner. The following observations were made: e Some of the grated stairwells in the housing areas were mopped, while others were not. e =|n one area, contractor personnel were using hand sanitizer to disinfect doorknobs, door handles, and phones. However, in other areas, the peroxide disinfectant was used. e Inthe 96 Medical Area, the contractor did not clean the area between the gates and the elevators. However, this area was cleaned in the 82 Medical Area. The contractor was observed mixing and handling both the concentrated form of the peroxide disinfectant as well as the diluted form. In its concentrated form, the disinfectant has a pH of less than 2 and is extremely corrosive. Even in its diluted form, the disinfectant is still corrosive and presents danger to users. Contractor personnel were not wearing certain personal protective equipment (PPE) while performing these tasks. The contractor was also observed using the fogging unit without eye protection. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure that the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. The following recommendations are made: e Ensure that all stairwells in the housing units are mopped. e = Since different disinfectants require different contact times (depending on the active ingredients), ensure that the contractor is consistent in what they use. The contact time for ethanol (5 minutes) is much greater than that for peroxide (45 seconds). e Ensure that the contractor is clear on what areas are considered within their scope of work and which areas are not and ensure that they clean and disinfect all of the areas for which they are responsible. It is recommended that the personnel handling and mixing the disinfectant in the mixing room wear goggles and/or face shield to protect their eyes and face. Consider also requiring longer gloves that cover exposed skin between hands and sleeves. Consider requiring the contractor to where eye protection during fogging. Potomac-Hudson Engineering, Inc Page 6 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 182 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC FACILITIES (CDF AND CTF) The following POSITIVE observations were made with respect to Spectrum Consider instructing Rock Solid personnel to follow some of these procedures during the site inspection: as well. e Personnel changed out mop water and/or mop heads at certain times throughout the day. e The peroxide disinfectant was used on windows, mirrors, and other glass surfaces in lieu of a typical glass cleaner. e = The walls in the bathrooms were scrubbed with a hard-bristled mop. Potomac-Hudson Engineering, Inc ah ad Page 7 PH Ee Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 183 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report CORRECTIVE ACTION PLAN PHE has developed a brief corrective action plan (CAP) as part of this document. A CAP is a step-by-step plan of action that is developed to achieve targeted outcomes for resolution of identified errors in an effort to: e = Identify the most cost-effective actions that can be implemented to correct error causes e Develop and implement a plan of action to improve processes or methods so that outcomes are more effective and efficient e Achieve measurable improvement in the highest priority areas e = Eliminate repeated deficient practices UPDATED PROTOCOL As the first step in this CAP, PHE has prepared an updated COVID-19 Disinfection and Cleaning Protocol to help guide the cleaning contractors (see Appendix A). The protocol has been improved to focus on and address observed contractor deficiencies. The update also revises some of the procedural language to more closely reflect site conditions, based on observations made during the site visit and conversations with both contractor and DOC personnel. Specific items added to the protocol to correct deficiencies include: e Added emphasis on thoroughly wetting the floors during mopping. The updates include requiring the contractors to remove mop buckets from the carts and/or providing additional carts with mop buckets to be available. e Removing spray bottle application of the disinfectant as an option and requiring that wet cloths be used to more thoroughly wet each surface and ensure full contact time is met across the entire surface. e Indicating that dry-sweeping is only permissible if an electrostatic broom or brush is used to collect dust and dirt with minimal aerosolization. e Re-emphasizing that ALL vertical surfaces must be disinfected, with specific examples. e = Adding additional PPE requirements when working in the mixing room. DISCUSSIONS WITH CONTRACTORS The findings made by PHE should be discussed directly with supervisors for each cleaning contractor, including potentially sharing this document with them. Each of the deficiencies should be identified, and the recommendations for correction should be explored. It is possible that the contractors may identify and suggest other corrective measures as alternatives to those suggested in this document. As long as the same goal is reached, any alternative or additional procedures can be implemented as well. When providing the updated protocol, DOC should specifically point out those items which have changed from the draft protocol and ensure that the contractors understand all of their responsibilities and expectations. PERIODIC RE-INSPECTIONS As part of the existing scope of work, PHE is scheduled to conduct up two (2) follow up monthly site inspections to ensure that the contractors are adhering to the recommended protocols and that noted deficiencies have been corrected. As part of these follow-up inspections, PHE will hold a short, informal out-brief at the end of each day to discuss any findings or other observations made, and present options for correction. Potomac-Hudson Engineering, Inc ah Page 8 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 184 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report PHE also recommends that DOC personnel perform additional inspections, as needed, based on the results of the PHE follow-up inspections, if deficiencies continue to be identified. EFFECTIVENESS EVALUATION The DOC will continue to check the temperature of personnel arriving onsite and require face masks for the foreseeable future. The DOC will also continue to perform voluntary testing of individuals onsite (both employees and inmates) every two weeks. As the year continues on, it is likely that additional waves or peaks may be observed throughout the region. DOC should closely monitor the number of persons onsite testing positive during these times to evaluate the effectiveness of all current procedures, including cleaning and disinfection. Changes should be made, as applicable and appropriate, to ensure that each facility is doing as much as possible to protect all personnel from the virus. Potomac-Hudson Engineering, Inc ah 4 Page 9 @ Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 185 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report This page intentionally blank. Potomac-Hudson Engineering, Inc ah Page 10 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 186 of 232 DC Department of Corrections Environmental Conditions Inspection July 2020 Draft Onsite Audit Inspection Report APPENDIX A SARS-CoV-2 (COVID-19) DisINFECTION AND CLEANING PROTOCOLS Potomac-Hudson Engineering, Inc. ah Appendix A WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 187 of 232 SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS PROJECT LOCATION: DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS CLEANING CONTRACTORS: SPECTRUM MANAGEMENT, LLC and ROCK SOLID DISTRICT GROUP, LLC 1.0 Introduction In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS- CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. The purpose of this Protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. Cleaning crews should clean and disinfect all identified areas, focusing especially on frequently touched surfaces. The procedures described in this Protocol shall be executed by the current contractors, Spectrum Management, LLC (Spectrum), and Rock Solid District Group, LLC (Rock Solid), with oversight by Potomac-Hudson Engineering, Inc. (PHE). 2.0 Implementation 2.1 Overview The procedures described in the Protocol comply with or exceed the United States Centers for Disease Control and Prevention’s (CDC’s) recommended practices in response to the COVID-19 pandemic. It is important to note that the cleaning and disinfection procedures described herein cannot remove ALL viral particles from surfaces; however, following these procedures will substantially decrease the number on surfaces and thereby reduce the risk of infection and spreading. 2.2 Employee Screening As part of existing entry procedures, all Spectrum and Rock Solid employees shall undergo a temperature check prior to each day’s work for signs of possible COVID-19 infection before being allowed to enter the facility. This is currently being conducted for all DOC employees, visitors, contractors, and any other visitors to the facility. Persons who screen positive, defined as having a temperature of 100.4 degrees Fahrenheit or greater will return to their vehicle. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 188 of 232 2.3 General Procedures i. The Spectrum and Rock Solid crew leaders shall meet at the beginning of each work day with the DOC point of contact for the facility(ies) to be cleaned to discuss the areas to be cleaned on that day and to coordinate the movement of cleaning crew staff through the facility. ii. Whenever possible, personnel shall attempt to wait at least 24 hours to enter an area or room previously occupied by an individual known to be infected with SARS-CoV-2. The National Institute of Health (NIH) has determined that the virus can remain active in the air for up to 3 hours and for up to 2 to 3 days on surfaces; however, some organizations have cautioned that the virus can remain active on surfaces for even longer periods of time. iii. If surfaces are visibly dirty, they shall be cleaned using a detergent or soap and water prior to disinfection. If a surface or object has been soiled with blood or other bodily fluids, initially treat the area with a 10 percent bleach solution; then proceed to disinfecting the area for COVID-19. iv. The product to be used for COVID-19 disinfecting is Ecolab Peroxide Multi Surface Cleaner and Disinfectant. (A copy of the Safety Data Sheet [SDS] for this product is included in Attachment A). The product, as purchased, contains 8 percent hydrogen peroxide and has a pH of 0.5 — 1.5 (extremely corrosive) and will be provided by the DOC. Use of the product may generate irritating vapors and is corrosive to the eyes and skin. Avoid using in small spaces with limited air exchange. Avoid touching any areas of your face while cleaning to prevent contact with the disinfecting compound and potential virus. Vv. An alternate product, Xpress Detergent Disinfectant, may also be used. This product will typically be used by Spectrum personnel in the fogging machine. An SDS for this product is also included int Attachment A. vi. Spectrum and Rock Solid shall use the designated product in accordance with the manufacturer’s instructions (mixed at 6 ounces per gallon), to include ensuring the required 45- second contact time of the wet disinfectant is met. The PHE industrial hygienist(s) shall conduct random observations/inspections of disinfectant use to verify that the product is used properly, and the designated contact time is met. vii. When mixing disinfectant, personnel shall wear eye and face protection, to include goggles, face shields, or equivalent PPE. Likewise, similar protection shall be used during fogging activities. viii. In order to ensure that the correct contact time is met, contractor personnel will apply rag/cloth soaked with the Ecolab Peroxide Multi Surface Cleaner and Disinfectant dilute mixture and liberally wipe the cloth on all applicable surfaces to ensure complete coverage. The entire surface shall be kept visibly wet for at least 45 seconds. Once the contact time has been achieved, the surface may be wiped down with a dry rag or allowed to air dry, depending on the location and amount of traffic in a given area 2.4 Disinfecting Procedures i. Cleaning/disinfecting shall focus on all high-touch surfaces and areas, to include but not be limited to: desks, computer mouses and keyboards, phones, lockers, cubbies, window sills and counter tops, doors, frames, doorknobs and push bars, elevator buttons, light switches, handrails, bathroom floors, faucet handles, toilet handles, toilet stall door locks, towel 2 vi. vil. viii. Xi. xii. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 189 of 232 dispensers and hand driers, showers, kitchen areas, cafeterias, office common areas, nursing stations, and other rooms. An alcohol solution shall be used for all electronics. These services shall be carried out in accordance with the CDC’s Coronavirus Disease 2019 (COVID-19) Environmental Cleaning and Disinfection Recommendations without restriction. Ventilate the rooms/spaces prior to and during cleaning/disinfecting. If ventilation through open windows is not possible, use a high-volume, high efficiency particulate air (HEPA) filter system to remove airborne particles from the air during cleaning. Temporarily increase the cleaning area’s humidity to approximately 50 percent relative humidity (RH), if possible. Prior to disinfecting, Spectrum and Rock Solid shall perform general cleaning, removing dirt and debris using the Ecolab Orange Force Multi Surface Cleaner and Degreaser, to include floor mopping. Clean all dust from horizontal surfaces with a towel dampened with the cleaner/degreaser to minimize re-aerosolization of settled contaminated dust and particles. Use a slow, smooth wiping action and change out or wet clean the towel on a regular basis to minimize re-aerosolization of collected dust and particulates. Dry sweeping with a typical straw or push-broom is not permitted. Instead, use of an electrostatic broom or brush (e.g., Swiffer Sweeper or equivalent) is permitted to remove dust and dirt particles prior to wet mopping. When mopping, ensure the floor surfaces that are disinfected stay wet for at least 45 seconds. Frequently re-wet the mop head to ensure a thorough soaking of the floor. Consider changing mop water at least once per day, and ensure designated mops are used for bathrooms and that these mops are not used elsewhere. Ensure that all stairwells in the housing units are mopped as well. Pay special attention to window ledges and other commonly dusty surfaces. Also pay special attention to frequently touched surfaces, such as railings, ledges, and countertops. Ensure that glass surfaces (e.g., windows, mirrors) are also disinfected. Disinfect ALL vertical surfaces to a height of at least 6 feet above the floor, including but not limited to walls, windows, columns, doors, rails, etc. As part of this protocol, it is strongly recommended that the contractor clean and disinfect heating, ventilation, and air conditioning (HVAC) supply and exhaust grills/diffusers, including removal of caked-on debris, dust, grease, etc. This will likely require the use of a ladder as these features are typically located at ceiling level. Disinfect floors by mopping with Ecolab Peroxide Multi Surface Cleaner and Disinfectant (this is the second round of mopping). Avoid aerosolizing the dirty cleaning liquid by using steady and sweeping mop swipes and careful, deliberate mop head squeezes. Restrooms shall receive special attention due to the tendency of the SARS-CoV-2 virus to bioaccumulate within feces, vomit, sputum, and urine. Clean any surfaces that have visible blood, stool, or body fluids. Trash liners shall be removed, and the trash receptacles disinfected. After air drying of the trash receptacles, a new liner shall be inserted in each receptacle. Following disinfecting, the DOC representative shall identify areas for fogging. Fogging shall be accomplished using ultra-low-volume foggers (a sprayer shall not be used as a substitute for a fogger) to ensure that all surfaces are adequately saturated. In general, fogging of walls shall be 3 xiii. Xiv. XV. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 190 of 232 2.5 applied to a height of 6 feet. When fogging, employees shall wear a full-face respirator equipped with organic vapor and acid gas cartridges. Access to the areas in which fogging is conducted shall be limited until the fogging aerosols have settled. For soft (porous) surfaces such as carpeted floors, rugs, and drapes, remove visible contamination if present, and clean with appropriate cleaners indicated for use on these surfaces. If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely. Otherwise, use products with the U.S. Environmental Protection Agency (USEPA)- approved emerging viral pathogens claims that are suitable for porous surfaces. Vacuum carpeting and other fabrics with vacuums equipped with HEPA filtration systems. Take appropriate precautions when changing the vacuum HEPA or pre-filter to minimize exposures to airborne dusts. Although the procedures described herein are designed for Spectrum and Rock Solid, ensure that any other entity performing disinfectant cleaning at the facilities (e.g., Summit in the dining rooms or the inmate cleaning detail) are following these procedures as well or are following equivalent procedures. Employee Safety Spectrum and Rock Solid employees shall complete the appropriate training, to include COVID- 19 awareness, hazard communication (with specific attention on the hazards of the cleaners and disinfectants to be used), and bloodborne pathogens exposure control. Protection from potential viral infection from skin contact and aerosol inhalation is required through the use of PPE and hand washing. The minimal level of PPE for workers performing the decontamination and disinfection includes a face mask and nitrile gloves. Additional PPE shall be permitted as desired, to include half-mask or full-face negative pressure respirators with dual P-100 organic vapor and acid gas cartridges and full-body Tyvek coveralls (with shoe coverings). Gloves may be sealed to the coveralls with duct tape for additional protection, and replaced immediately if punctured or torn. Crew members shall inspect each other to verify that the PPE is donned correctly prior to beginning work. Cleaning employees shall be reminded to avoid touching any unprotected parts of the face. Employees shall wear goggles while transferring and/or diluting the Ecolab Peroxide Multi Surface Cleaner and Disinfectant, and while emptying buckets. Employees shall be medically approved, trained, and properly fit-tested to wear the respective respirators. If any breaches should occur in the PPE or if contact with unprotected skin occurs, the following steps must be followed: a. immediately stop work; b. remove the damaged PPE; c. wash the skin with soap and warm water (if soap and water are not available, use an alcohol-based hand sanitizer that contains 60 to-95 percent alcohol); and d. report the breach to the crew leader. Extension cords for portable electrical equipment will be protected by ground fault circuit interrupters (GFCl). Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 191 of 232 Vv. Slip hazards are a potential concern due to the wet application (mopping of floors). Non-slip shoes shall be worn. 3.0 Quality Control and Oversight The PHE industrial hygienist (or designated DC DOC employee) shall conduct random observations/inspections of wiped/mopped/fogged areas and document that the required contact time for the disinfectant (45 seconds) was achieved. The form in Attachment B may be used for this purpose, if desired. Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 192 of 232 ATTACHMENT A — SAFETY DATA SHEETS (SDSs) Case 1:20-cv-00849- CKK Document 138-2 Filed 12/12/20 Page 193 of 232 SAFETY DATA SHEET ECOLAB PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT | SECTION 1. PRODUCT AND COMPANY IDENTIFICATION Product name Other means of identification Recommended use Restrictions on use Product dilution information Company Emergency health information Issuing date PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Not applicable Disinfectant Reserved for industrial and professional use. 3.125 % - 4.6875 % Ecolab Inc. 1 Ecolab Place St. Paul, Minnesota USA 55102 1-800-352-5326 1-800-328-0026 (US/Canada), 1-651-222-5352 (outside US) 02/03/2020 | SECTION 2. HAZARDS IDENTIFICATION GHS Classification Product AS SOLD Acute toxicity (Oral) Acute toxicity (Inhalation) Acute toxicity (Dermal) Skin corrosion Serious eye damage Skin sensitization Product AT USE DILUTION Eye irritation GHS label elements Product AS SOLD Hazard pictograms Signal Word Hazard Statements Precautionary Statements : Category 4 : Category 3 : Category 4 : Category 1A : Category 1 : Category 1 : Category 2B GIN CEE Danger Harmful if swallowed or in contact with skin. Causes severe skin burns and eye damage. May cause an allergic skin reaction. Toxic if inhaled. Prevention: Avoid breathing dust/ fume/ gas/ mist/ vapors/ spray. Wash skin thoroughly after handling. Do not eat, drink or smoke when using this product. Use only outdoors or in a well-ventilated area. Contaminated work clothing must not be allowed out of the workplace. Wear 914443-01 1/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 194 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT protective gloves/ protective clothing/ eye protection/ face protection. Response: IF SWALLOWED: Call a POISON CENTER/doctor if you feel unwell. Rinse mouth. IF SWALLOWED: Rinse mouth. Do NOT induce vomiting. IF ON SKIN (or hair): Take off immediately all contaminated clothing. Rinse skin with water/shower. IF INHALED: Remove person to fresh air and keep comfortable for breathing. Immediately call a POISON CENTER/doctor. IF IN EYES: Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. Immediately call a POISON CENTER/doctor. If skin irritation or rash occurs: Get medical advice/ attention. Wash contaminated clothing before reuse. Storage: Store in a well-ventilated place. Keep container tightly closed. Store locked up. Disposal: Dispose of contents/ container to an approved waste disposal plant. Product AT USE DILUTION Signal Word : Warning Hazard Statements : Causes eye irritation. Precautionary Statements : Prevention: Wash skin thoroughly after handling. Response: IF IN EYES: Rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. If eye irritation persists: Get medical advice/ attention. Product AS SOLD Other hazards : Do not mix with bleach or other chlorinated products — will cause chlorine gas. | SECTION 3. COMPOSITION/INFORMATION ON INGREDIENTS Product AS SOLD Pure substance/mixture : Mixture Chemical name CAS-No. Concentration (%) dodecylbenzene sulfonic acid 27176-87-0 5-10 Hydrogen peroxide 7722-84-1 8 Proprietary Fragrance Proprietary Ingredient 0.1-1 Sulfuric acid 7664-93-9 0.1-1 Product AT USE DILUTION Chemical name CAS-No. Concentration (%) dodecylbenzene sulfonic acid 27176-87-0 0.1-1 Hydrogen peroxide 7722-84-1 0.375 | SECTION 4. FIRST AID MEASURES Product AS SOLD In case of eye contact : Rinse immediately with plenty of water, also under the eyelids, for at least 15 minutes. Remove contact lenses, if present and easy to do. Continue rinsing. Get medical attention immediately. In case of skin contact : Wash off immediately with plenty of water for at least 15 minutes. Use 914443-01 2/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 195 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT If swallowed If inhaled Protection of first-aiders Notes to physician Most important symptoms and effects, both acute and delayed Product AT USE DILUTION In case of eye contact In case of skin contact lf swallowed If inhaled a mild soap if available. Wash clothing before reuse. Thoroughly clean shoes before reuse. Get medical attention immediately. Rinse mouth with water. Do NOT induce vomiting. Never give anything by mouth to an unconscious person. Get medical attention immediately. Remove to fresh air. Treat symptomatically. Get medical attention immediately. If potential for exposure exists refer to Section 8 for specific personal protective equipment. : Treat symptomatically. See Section 11 for more detailed information on health effects and symptoms. Rinse with plenty of water. Rinse with plenty of water. Rinse mouth. Get medical attention if symptoms occur. Get medical attention if symptoms occur. | SECTION 5. FIRE-FIGHTING MEASURES Product AS SOLD Suitable extinguishing media Unsuitable extinguishing media Specific hazards during fire fighting Hazardous combustion products Special protective equipment for fire-fighters Specific extinguishing methods Use extinguishing measures that are appropriate to local circumstances and the surrounding environment. None known. Oxidizer. Contact with other material may cause fire. Decomposition products may include the following materials: Carbon oxides Sulfur oxides Use personal protective equipment. Fire residues and contaminated fire extinguishing water must be disposed of in accordance with local regulations. In the event of fire and/or explosion do not breathe fumes. | SECTION 6. ACCIDENTAL RELEASE MEASURES Product AS SOLD Personal precautions, protective equipment and emergency procedures Ensure adequate ventilation. Keep people away from and upwind of spill/leak. Avoid inhalation, ingestion and contact with skin and eyes. When workers are facing concentrations above the exposure limit they must use appropriate certified respirators. Ensure clean-up is 914443-01 3/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 196 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT conducted by trained personnel only. Refer to protective measures listed in sections 7 and 8. Environmental precautions : Do not allow contact with soil, surface or ground water. Methods and materials for : Stop leak if safe to do so. Contain spillage, and then collect with non- containment and cleaning up combustible absorbent material, (e.g. sand, earth, diatomaceous earth, vermiculite) and place in container for disposal according to local / national regulations (see section 13). Flush away traces with water. Isolate absorbed wastes contaminated with this product from other waste streams containing combustible materials (paper, wood fibers, cloth, etc.). Combustible materials exposed to this product should be rinsed immediately with large amounts of water to ensure that all product is removed. Residual product which is allowed to dry on organic materials such as _ rags, cloths, paper, fabrics, cotton, leather, wood, or other combustibles may spontaneously ignite and result in a fire. Product AT USE DILUTION Personal precautions, : Refer to protective measures listed in sections 7 and 8. protective equipment and emergency procedures Environmental precautions : Do not allow contact with soil, surface or ground water. Methods and materials for : Stop leak if safe to do so. Contain spillage, and then collect with non- containment and cleaning up combustible absorbent material, (e.g. sand, earth, diatomaceous earth, vermiculite) and place in container for disposal according to local / national regulations (see section 13). Flush away traces with water. For large spills, dike spilled material or otherwise contain material to ensure runoff does not reach a waterway. | SECTION 7. HANDLING AND STORAGE Product AS SOLD Advice on safe handling : Do not ingest. Do not get in eyes, on skin, or on clothing. Do not breathe dust/ fume/ gas/ mist/ vapors/ spray. Use only with adequate ventilation. Wash hands thoroughly after handling. Do not mix with bleach or other chlorinated products — will cause chlorine gas. In case of mechanical malfunction, or if in contact with unknown dilution of product, wear full Personal Protective Equipment (PPE). Conditions for safe storage : Keep ina cool, well-ventilated place. Keep away from reducing agents. Keep away from strong bases. Keep away from combustible material. Keep out of reach of children. Keep container tightly closed. Store in suitable labeled containers. Storage temperature : 15°C to 40°C Product AT USE DILUTION Advice on safe handling : Wash hands thoroughly after handling. In case of mechanical malfunction, or if in contact with unknown dilution of product, wear full Personal Protective Equipment (PPE). Conditions for safe storage : Keep out of reach of children. Store in suitable labeled containers. | SECTION 8. EXPOSURE CONTROLS/PERSONAL PROTECTION Product AS SOLD 914443-01 4/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 197 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Ingredients with workplace control parameters Components CAS-No. Form of Permissible Basis exposure concentration Hydrogen peroxide 7722-84-1 TWA 1 ppm ACGIH TWA 1 ppm NIOSH REL 1.4 mg/m3 TWA 1 ppm OSHA 21 1.4 mg/m3 sulphuric acid 7664-93-9 TWA (Thoracic | 0.2 mg/m3 ACGIH fraction) TWA 1 mg/m3 NIOSH REL TWA 1 mg/m3 OSHA 21 Engineering measures : Effective exhaust ventilation system. Maintain air concentrations below occupational exposure standards. Personal protective equipment Eye protection : Wear eye protection/ face protection. Hand protection : Wear the following personal protective equipment: Standard glove type. Gloves should be discarded and replaced if there is any indication of degradation or chemical breakthrough. Skin protection : Personal protective equipment comprising: suitable protective gloves, safety goggles and protective clothing Respiratory protection : When workers are facing concentrations above the exposure limit they must use appropriate certified respirators. Hygiene measures : Handle in accordance with good industrial hygiene and safety practice. Remove and wash contaminated clothing before re-use. Wash face, hands and any exposed skin thoroughly after handling. Provide suitable facilities for quick drenching or flushing of the eyes and body in case of contact or splash hazard. Product AT USE DILUTION Engineering measures : Good general ventilation should be sufficient to control worker exposure to airborne contaminants. Personal protective equipment Eye protection : No special protective equipment required. Hand protection : No special protective equipment required. Skin protection : No special protective equipment required. Respiratory protection : No personal respiratory protective equipment normally required. | SECTION 9. PHYSICAL AND CHEMICAL PROPERTIES Product AS SOLD Product AT USE DILUTION Appearance : liquid liquid Color : Clear, yellow yellow 914443-01 5/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 198 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Odor : Perfumes, fragrances Perfumes, fragrances pH : 0.5-1.5, (100 %) 2.0-2.5 Flash point Not applicable, Does not sustain combustion. Odor Threshold Melting point/freezing point Initial boiling point and boiling range Evaporation rate Flammability (solid, gas) Upper explosion limit Lower explosion limit Vapor pressure Relative vapor density Relative density Water solubility Solubility in other solvents Partition coefficient: n- octanol/water Autoignition temperature Thermal decomposition Viscosity, kinematic Explosive properties Oxidizing properties Molecular weight VOC No data available No data available : >100°C No data available Not applicable No data available No data available No data available No data available 1.025 - 1.049 : soluble No data available No data available No data available No data available No data available No data available : The substance or mixture is not classified as oxidizing. No data available No data available | SECTION 10. STABILITY AND REACTIVITY Product AS SOLD Reactivity No dangerous reaction known under conditions of normal use. Chemical stability : Contamination may result in dangerous pressure increases - closed containers may rupture. Possibility of hazardous Do not mix with bleach or other chlorinated products — will cause reactions chlorine gas. Conditions to avoid None known. Incompatible materials : Bases Metals Hazardous decomposition products In case of fire hazardous decomposition products may be produced such as: Carbon oxides Sulfur oxides | SECTION 11. TOXICOLOGICAL INFORMATION 914443-01 6/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 199 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Information on likely routes of exposure Potential Health Effects Product AS SOLD Eyes Skin Ingestion Inhalation Chronic Exposure Product AT USE DILUTION Eyes Skin Ingestion Inhalation Chronic Exposure Inhalation, Eye contact, Skin contact Causes serious eye damage. Harmful if absorbed through skin. Causes severe skin burns. May cause allergic skin reaction. Harmful if swallowed. Causes digestive tract burns. : Toxic if inhaled. May cause nose, throat, and lung irritation. Health injuries are not known or expected under normal use. Causes eye irritation. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Health injuries are not known or expected under normal use. Experience with human exposure Product AS SOLD Eye contact Skin contact Ingestion Inhalation Product AT USE DILUTION Eye contact Skin contact Ingestion Inhalation Toxicity Product AS SOLD Product Acute oral toxicity Acute inhalation toxicity Acute dermal toxicity Redness, Pain, Corrosion Redness, Pain, Irritation, Corrosion, Allergic reactions Corrosion, Abdominal pain Respiratory irritation, Cough Redness, Irritation No symptoms known or expected. No symptoms known or expected. No symptoms known or expected. : Acute toxicity estimate : > 300 mg/kg : Acute toxicity estimate : 0.55 mg/| Test atmosphere: dust/mist : Acute toxicity estimate : > 1,200 mg/kg 914443-01 7/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 200 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Respiratory or skin : No data available sensitization Carcinogenicity : No data available Reproductive effects : No data available Germ cell mutagenicity : No data available Teratogenicity : No data available STOT-single exposure : No data available STOT-repeated exposure : No data available Aspiration toxicity : No data available | SECTION 12. ECOLOGICAL INFORMATION Product AS SOLD Ecotoxicity Environmental Effects : Harmful to aquatic life. Product Toxicity to fish : No data available Toxicity to daphnia and other : No data available aquatic invertebrates Toxicity to algae : No data available Components Toxicity to fish : dodecylbenzene sulfonic acid 96 h LC50: 4.3 mg/l Sulfuric acid 96 h LC50: 22 mg/l Components Toxicity to algae : Hydrogen peroxide 72 h EC50: 1.38 mg/l Persistence and degradability Product AS SOLD Not applicable - inorganic Product AT USE DILUTION Not applicable - inorganic Bioaccumulative potential No data available Mobility in soil No data available Other adverse effects No data available | SECTION 13. DISPOSAL CONSIDERATIONS 914443-01 8/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 201 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT Product AS SOLD Disposal methods Disposal considerations RCRA - Resource Conservation and Recovery Authorization Act Hazardous waste Product AT USE DILUTION Disposal methods Disposal considerations Do not contaminate ponds, waterways or ditches with chemical or used container. Where possible recycling is preferred to disposal or incineration. If recycling is not practicable, dispose of in compliance with local regulations. Dispose of wastes in an approved waste disposal facility. Dispose of as unused product. Empty containers should be taken to an approved waste handling site for recycling or disposal. Do not re- use empty containers. Dispose of in accordance with local, state, and federal regulations. D002 (Corrosive) Diluted product can be flushed to sanitary sewer. Dispose of in accordance with local, state, and federal regulations. | SECTION 14. TRANSPORT INFORMATION Product AS SOLD The shipper/consignor/sender is responsible to ensure that the packaging, labeling, and markings are in compliance with the selected mode of transport. Land transport (DOT) Not dangerous goods Sea transport (IMDG/IMO) Not dangerous goods | SECTION 15. REGULATORY INFORMATION Product AS SOLD EPA Registration number 1677-238 EPCRA - Emergency Planning and Community Right-to-Know CERCLA Reportable Quantity Components CAS-No. Component RQ (Ibs) | Calculated product RQ (Ibs) dodecylbenzene sulfonic acid 27176-87-0 1000 10416 SARA 304 Extremely Hazardous Substances Reportable Quantity This material does not contain any components with a section 304 EHS RQ. SARA 311/312 Hazards : Acute toxicity (any route of exposure) Skin corrosion or irritation Serious eye damage or eye irritation Respiratory or skin sensitization 914443-01 9/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 202 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT SARA 302 : The following components are subject to reporting levels established by SARA Title Ill, Section 302: Hydrogen peroxide 7722-84-1 5-10 % SARA 313 : This material does not contain any chemical components with known CAS numbers that exceed the threshold (De Minimis) reporting levels established by SARA Title Ill, Section 313. California Prop. 65 This product does not contain any chemicals known to the State of California to cause cancer, birth, or any other reproductive defects. California Cleaning Product Right to Know Act of 2017 (SB 258) This regulation applies to this product. Chemical Name CAS-No. Function List(s) water 7732-18-5 Diluent Not Applicable dodecylbenzene sulfonic acid 27176-87-0 Cleaning Agent Not Applicable Hydrogen peroxide 7722-84-1 Biocide Not Applicable Fragrance Ingredient(s) Not Available Fragrance Not Applicable Aryl carboxylic acid Withheld Stabilizer Not Applicable Yellow dye Withheld Dye Not Applicable Silicone Withheld Processing Aid Not Applicable *refer to ecolab.com/sds for electronic links to designated lists The ingredients of this product are reported in the following inventories: Switzerland. New notified substances and declared preparations : not determined United States TSCA Inventory : All substances listed as active on the TSCA inventory Canadian Domestic Substances List (DSL) : This product contains one or several components listed in the Canadian NDSL. Australia Inventory of Chemical Substances (AICS) : not determined New Zealand. Inventory of Chemical Substances : not determined Japan. ENCS - Existing and New Chemical Substances Inventory : not determined Korea. Korean Existing Chemicals Inventory (KECI) : On the inventory, or in compliance with the inventory Philippines Inventory of Chemicals and Chemical Substances (PICCS) : On the inventory, or in compliance with the inventory China. Inventory of Existing Chemical Substances in China (IECSC) : not determined Taiwan Chemical Substance Inventory (TCSI) : not determined 914443-01 10/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 203 of 232 SAFETY DATA SHEET PEROXIDE MULTI SURFACE CLEANER AND DISINFECTANT | SECTION 16. OTHER INFORMATION Product AS SOLD NFPA: HMIS III: Flammability HEALTH Lv / 0 = not significant, 1 = Slight, Special hazard 2 = Moderate, 3 = High 4 = Extreme, * = Chronic FLAMMABILITY Health Ayige}su| PHYSICAL HAZARD 0 Product AT USE DILUTION NFPA: HMIS III: Flammability HEALTH Lv FLAMMABILITY Health sy Ayuiqeysu| PHYSICAL HAZARD 0 ; 0 = not significant, 1 = Slight, Special hazard 2 = Moderate, 3 = High 4 = Extreme, * = Chronic Issuing date : 02/03/2020 Version > 1.12 Prepared by : Regulatory Affairs REVISED INFORMATION: Significant changes to regulatory or health information for this revision is indicated by a bar in the left-hand margin of the SDS. The information provided in this Safety Data Sheet is correct to the best of our knowledge, information and belief at the date of its publication. The information given is designed only as a guidance for safe handling, use, processing, storage, transportation, disposal and release and is not to be considered a warranty or quality specification. The information relates only to the specific material designated and may not be valid for such material used in combination with any other materials or in any process, unless specified in the text. 914443-01 11/11 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 204 of 232 “Cher. SAFETY DATA SHEET SYSTE . Xpress Detergent Disinfectant 1. PRODUCT AND COMPANY IDENTIFICATION Product Name: Xpress Detergent Disinfectant Product Code: A0346 Recommended Use: General cleaner and disinfectant Company Auto-Chlor System 746 Poplar Avenue Memphis, TN 38105 Questions/Comments: 901-579-2300 Emergency Telephone Numbers MEDICAL: 1-866-923-4946 (PROSAR) SPILLS: 1-800-424-9300 (CHEMTREC) 2. HAZARDS IDENTIFICATION OSHA Hazard Classification Signal Word: WARNING Acute Toxicity: Category 4 (oral) Acute Toxicity: Category 4 (dermal) Eye Irritation: Category 2B HAZARD STATEMENTS PRECAUTIONARY STATEMENTS H302: Harmful if swallowed P264: Wash hands thoroughly after handling H312: Harmful in contact with skin P270: Do not eat, drink or smoke when using this H320: Causes eye irritation product P280: Wear eye protection P301/P312: If swallowed, call a poison center or or physician if you feel unwell. rinse mouth. P302/P352: If on skin, wash with plenty of soap and water. P362/P364: Take off contaminated clothing and wash it before reuse. 3. COMPOSITION/INFORMATION ON INGREDIENTS INGREDIENTS CAS NO. % _Diethylene glycol monobutyl ether 112-34-5 8 Tetra sodium ethylenediamine tetra acetic acid (Na4 EDTA) 64-02-8 1.6 1of5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 205 of 232 Xpress Detergent Disinfectant _Alkyl (68% C12, 32% C14) dimethyl ethylbenzyl ammonium chloride 85409-23-0 0.11 _Alkyl dimethyl benzyl ammonium chloride (C12-C18) 68391-01-5 0.11 Other components below reportable levels 141-43-5 <1.0 4. FIRST AID MEASURES Ingestion: If swallowed, call a poison center if you feel unwell. Rinse mouth. Skin Contact: If on skin, wash with plenty of water. If skin irritation occurs, get medical advice. Take off contaminated clothing and wash it before reuse. Eye Contact: If in eyes, rinse cautiously with water for several minutes. Remove contact lenses, if present and easy to do. Continue rinsing. If eye irritation persists, get medical advice. 5. FIREFIGHTING MEASURES Extinguishing Media: Specific Hazards: Protective Equipment: Class A/B/C fire extinguisher, dry chemical, carbon dioxide, or foam During fire, gases hazardous to health may be formed. Wear full protective clothing and self-contained breathing apparatus 6. ACCIDENTAL RELEASE MEASURES Personal Precautions: Protective Equipment: Cleanup Procedures: Isolate spill or leak area immediately. Adequately ventilate area. Wear appropriate personal protective equipment as specified in Section 8. Absorb with earth, sand or other non-combustible material and transfer to containers for later disposal. 7. HANDLING AND STORAGE Handling Precautions: Storage: Do not eat, drink or smoke when using this product. Wash hands thoroughly after handling. Avoid prolonged exposure. Avoid release to the environment. FOR INDUSTRIAL AND INSTITUTIONAL USE ONLY. Protect from freezing. Keep tightly closed in a dry, cool and well ventilated place. 8. EXPOSURE CONTROLS/PERSONAL PROTECTION Occupational Exposure Limits: No occupational exposure limits established for this product. Appropriate Engineering Controls: Good general ventilation should be sufficient to control airborne levels. Personal Protective Equipment 2o0i5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 206 of 232 Xpress Detergent Disinfectant Eye Protection: Wear protective glasses, goggles or eye shield. Skin Protection: Wear protective gloves. Respiratory Protection: In case of insufficient ventilation, wear suitable respiratory equipment. 9. PHYSICAL AND CHEMICAL PROPERTIES Appearance: Evaporation Rate: liquid No information available Odor: Odor Threshold: Citrus No information available pH: Vapor Density: 11.7 No information available Specific Gravity: Vapor Pressure: No information available No information available Solubility: Partition Coefficient: Soluble in water No information available Flash Point: Auto-lgnition Temperature: > 93.9C No information available Boiling Point: Decomposition Temperature: No information available No information available voc: Melting/Freezing Point: No information available No information available Viscosity: Flammability: No information available No information available Lower Explosive / Upper Explosive: No information available 10.STABILITY AND REACTIVITY Stability: Stable under normal conditions Hazardous Polymerization: Will not occur Incompatibility: Strong acids, alkalies, and oxidizing agents. Hazardous Decomposition Products: Oxides of nitrogen ammonia, carbon dioxide, carbon Monoxide, and other low molecular weight hydrocarbons 11. TOXICOLOGY INFORMATION Likely Routes of Exposure: Inhalation, eye and skin contact Acute Symptoms Eye and Skin Contact: Causes eye irritation and causes mild skin irritation. Ingestion: Expected to be a low ingestion hazard. Inhalation: Prolonged inhalation may be harmful. 3o0f 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 207 of 232 Xpress Detergent Disinfectant Chronic Effects: None known Assessment of acute toxicity: Oral LDso Dermal LDso Inhalation LCso >5 g/kg >5 g/kg 2.43 mg/| 12.ECOLOGICAL INFORMATION Toxic to aquatic life. Harmul to aquatic life with long lasting effects. Expected to be readily biodegradable. 13.DISPOSAL CONSIDERATIONS Pesticide wastes are acutely hazardous. Improper disposal of all excess pesticide spray mixture or rinsate is a violation of Federal Law. If these wastes cannot be disposed of by use according to label directions, contact your State Pesticide or Environmental Control Agency, or the Hazardous Waste Representatives at the nearest EPA Regional Office for guidance. 14.TRANSPORT INFORMATION UN Number: Not classified Proper Shipping Name: Not classified Hazard Class: Not classified Packing Group: Not classified 15.REGULATORY INFORMATION This chemical is a pesticide product registered by the Environmental Protection Agency and is subject to certain labeling requirements under federal pesticide law. These requirements differ from the classification criteria and hazard information required for safety data sheets, and for workplace labels of non-pesticide chemicals. The pesticide label also includes other important information, including directions for use, pesticide storage and container handling. EPA REGISTRATION NUMBER: 1839-83-6243 16.OTHER INFORMATION Revision Date: 03/05/2020 Supersedes: new Reason for Revision: New formulation Notice to Reader: This document has been prepared using data from sources considered technically reliable. It does not constitute a warranty, express or implied, as to the accuracy of the information contained within. Actual conditions of use and handling are beyond seller’s control. User is 4o0f5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 208 of 232 Xpress Detergent Disinfectant responsible to evaluate all available information when using product for any particular use and to comply with all Federal, State, Provincial and Local laws and regulations. 5of 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 209 of 232 ATTACHMENT B — INDUSTRIAL HYGIENIST OBSERVATION LOG Industrial Hygienist Date Facility Surface Cleaning Observation Location Adequate | Deficient Disinfectant Contact Time Observation Location Time Minutes lied Until Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 210 of 232 FOLLOW-UP ONSITE AUDIT INSPECTION REPORT ENVIRONMENTAL CONDITIONS INSPECTION FOR SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS (DC DOC), CENTRAL DETENTION FACILITY (CDF) AND CORRECTIONAL TREATMENT FACILITY (CTF) JULY 23, 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14* Street NW, 7* Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302, Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 211 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of the protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can help prevent the spread of disease to Department of Corrections (DOC) inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020 and conducted initial on-site observational inspections to verify compliance with the protocol on June 29 and July 1, 2020. Following these observational inspections, the disinfection protocol was revised and a report was provided to DC DOC summarizing the inspections and recommending a number of corrective actions to improve work practices and procedures. A follow up observational inspection was conducted on July 20, 2020 to verify implementation of the corrective action recommendations by the contractors who are conducting the disinfection. AUDIT OVERVIEW SCOPE PHE Industrial Hygienist Gary Morris conducted the follow up inspection of the DC DOC Central Detention Facility (CDF) and the Correctional Treatment Facility (CTF). This report contains observations from these follow up inspections, deviations deficiencies and from prescribed work practices and procedures, and corrective action recommendations. An In-Brief Meeting was held prior to the inspections and was attended by DC DOC representatives Gloria Robertson and Rena Myles. At the conclusion of the inspections, an Out-Brief Meeting was held that was attended by Ms. Robertson, Ms. Myles, and Gitana Stewart-Ponder to summarize observations, deficiencies, and corrective action recommendations from the follow up inspection. Sanitizing and disinfection of the CDF is being conducted by Rock Solid Rock Solid District Group, LLC and by Spectrum Management, LLC in the CTF. SUMMARY OF FINDINGS Tables 1A (CDF) and 1B (CTF) contain summaries of the findings from the initial oversight inspections, the recommended corrective action contained in the initial report, the status of each corrective action, and additional corrective action. Positive observations from the follow up inspection consist of the following: e Some of the Spectrum Management, LLC staff did not wring out the rags after dipping in the bucket, increasing adequate coverage and contact time of surfaces (the rags were visibly soaked with the disinfectant). e Spectrum Management, LLC staff carried the dip buckets and mop buckets with them to the areas in which they were disinfecting, increasing the frequency of re-wetting of the rags and mops. e Spectrum Management, LLC staff periodically refilled the wipe buckets with the disinfectant. It is recommended that these work practices be implemented by Rock Solid District Group, LLC in the CTF. Potomac-Hudson Engineering, Inc. Page 2 as Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 212 of 232 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report DC Department of Corrections July 23, 2020 TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant). In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces can then be wiped dry with a dry rag or are allowed to air-dry, as appropriate in a given area. The majority of contractor employees were still using spray application as opposed to wet wiping. Spray application was observed used on telephones, tables, and benches in one of the housing blocks. Also, the employees who were wet wiping were not returning to the cart to re-wet their rags at such a frequency to ensure the 45 second contact time on all of the surfaces treated. We also noted that surface drying in the housing units was faster due to the existence of wall and floor fans in the hallways (to help with conditioning the space). Replace all spray application with wet wiping. Periodically remind contractor staff that the objective of their work is to disinfect surfaces as opposed to cleaning the surfaces, reinforcing the required 45 second contact time, with additional attention to the housing units due to the faster surface drying facilitated by the wall and floor fans. Instruct crew staff to liberally wet the rags and avoid wringing them out and to take the bucket with them to enable frequent re- wetting without returning to the cart. Ensure that all applicable items are disinfected (the exercise machine in the South 3 Housing Unit was not disinfected). Potomac-Hudson Engineering, Inc Page 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 213 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor did not consistently allow for adequate wetting of the floor during mopping. On several occasions it was observed that a wet mop was used for an overly extensive period of time before being re-wetted. This resulted in portions of the floor being inadequately damped with a sufficient amount of disinfectant to ensure a 45 second contact time. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non- communal spaces). Ensure that mops are frequently wetted in the mop bucket during floor mopping. Consider requiring the contractor to provide additional mop buckets and dollies so that each person mopping has access to their own dolly that can be toted along with them as they mop. Based on site observations, there was an insufficient number of mop dollies. This required the dollies to remain in a centralized position and discouraged floor cleaners from more frequently wetting their mop heads. achieved. Additionally, the mop buckets themselves, which have their own sets of wheels on them, should be removed from the dollies and transported with those mopping the floors. The contractor was not observed disinfecting walls. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. Observations of floor mopping indicated that the 45 second contact time was As noted above, the existence of wall and floor fans in the housing units facilitates faster drying of surfaces, including floors in these areas. As an added measure, periodically remind contractor staff that additional attention is needed to ensure the 45 second contact time (i.e. periodically return the mop to the bucket to re-wet the mop) in the housing units. Removing the mop buckets from the carts will facilitate more frequent we-wetting of the mop heads. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. Potomac-Hudson Engineering, Inc Page 4 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 214 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. Currently, the cleaning contractor is only responsible for disinfecting the floor and doorknobs/door handles in the basement. Although DOC staff are responsible for the remaining areas, it is unclear if they know all the surfaces they need to clean and/or if they are aware of the proper contact time for the disinfectant. The contractor was observed cleaning windows, mirrors, and other glass surfaces with an ammonium-based window cleaner (Ecolab Oasis 255SF Industrial Window Cleaner) as opposed to an EPA registered product. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they atrive. Ensure the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. Ensure that staff cleaning personnel are familiar with and are properly implementing the cleaning protocols currently being provided to the third-party contractors. Test the hydrogen peroxide-based disinfectant on glass surfaces. If acceptable, consider using the disinfectant on these surfaces instead of, or in addition to, traditional window cleaning chemicals. DC DOC has not been able to procure the dust mops through their supplier and is investigating additional suppliers. Work practices using the brooms in such a manner to minimize dispersion of accumulated dust were observed. Continue attempts to procure the dust mops. DOC staff has been informed of the surfaces to be addressed and the importance of the 45 second contact time. No additional action is required. The hydrogen peroxide-based disinfectant was used on all surfaces. Other products were not observed on the carts. No additional action is required. Potomac-Hudson Engineering, Inc Page 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 215 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report TABLE 1A. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY RECOMMENDED CORRECTIVE STATUS OF CORRECTIVE ACTION PY Ni Kee) Cert is CENTRAL DETENTION FACILITY (CDF)/ROCK SOLID MANAGEMENT In some cases, contractor personnel were Ensure that all chemicals and The hydrogen peroxide-based No additional action is required. observed cleaning doorknobs, door handles, | cleaning procedures are disinfectant was used on all surfaces. and other frequently-touched surfaces with a _ consistently applied throughout Other products were not observed on the hand sanitizer. While this is technically the facility. If hand sanitizer isto | carts. sufficient for disinfection, it is not be be used on a regular basis for applied consistently in all areas and the these surfaces, they should be proper contact time may or may not be documented in the cleaning properly implemented. protocol. The contractor (Summit) that currently Ensure that Summit is performing DC DOC has discussed appropriate No additional action is required. provides food service duties in the cafeteria | proper disinfection in a manner disinfection practices with Summit is solely responsible for cleaning and that is consistent with or exceeds | (surfaces are disinfected three times per disinfecting that area of the facility. Itis not the procedures being used day). known if they are aware of or are following | elsewhere at the facility. the proper protocols for disinfection in a manner consistent with the other areas of the facility. Potomac-Hudson Engineering, Inc Page 6 ak Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 216 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide- based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant) being used. In several instances, a surface was wiped with a dry rag immediately after spray application of the disinfectant. In other instances, only a portion of a surface was sprayed wet and allowed for a 45-second contact time. The disinfectant was then wiped with a dry rag such that the unsprayed portion of the surface was not allotted adequate contact time with the disinfectant. The contractor did not consistently disinfect all walls or other vertical surfaces to a height of 6 feet above the floor. While adequate disinfection of these surfaces was observed being performed in common areas, it was not being done in other areas (bathrooms, offices, and other non-communal spaces). Sufficiently spraying to adequately wet and entire surface such as a table or wall is extremely difficult and time-consuming. It is recommended that the contractor apply a towel sufficiently wetted with the disinfectant to all surfaces in lieu of spraying. After adequate contact time (45 seconds) has been achieved, the surfaces should then be wiped dry with a dry rag or be allowed to air-dry, as appropriate in a given area. This will further ensure that the entire surface is adequately wetted for the duration of the required contact time. Ensure that the contractor is aware that ALL vertical surfaces (walls, windows, columns, doors, rails, etc.) must be properly disinfected from the floor to a height of six feet, including adequate contact time. No additional action is required. Spraying and wiping of surfaces has been replaced with wet wiping. The 45 second contact time was achieved on all surfaces observed, including walls. No additional action is required. Observations during the follow up inspection indicated that appropriate surfaces, including walls were effectively being disinfected. Potomac-Hudson Engineering, Inc Page 7 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 217 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor dry-swept all floors prior to disinfection in contradiction to the cleaning protocols. Dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents. The contractor was not always performing its duties in a consistent manner. The following observations were made: e Some of the grated stairwells in the housing areas were mopped, while others were not. e In one area, contractor personnel were using hand sanitizer to disinfect doorknobs, door handles, and phones. However, in other areas, the peroxide disinfectant was used. e Inthe 96 Medical Area, the contractor did not clean the area between the gates and the elevators. However, this area was cleaned in the 82 Medical Area. The facility has ordered dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. This will be implemented as soon as they arrive. Ensure that the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. The following recommendations are made: e Ensure that all stairwells in the housing units are mopped. e = Since different disinfectants require different contact times (depending on the active ingredients), ensure that the contractor is consistent in what they use. The contact time for ethanol (5 minutes) is much greater than that for peroxide (45 seconds). e Ensure that the contractor is clear on what areas are considered within their scope of work and which areas are not and ensure that they clean and disinfect all of the areas for which they are responsible. DC DOC has not been able to procure the dust mops through their supplier and is investigating additional suppliers. Work practices using the brooms in such a manner to minimize dispersion of accumulated dust were observed. Continue attempts to procure the dust mops. No additional action is required. All applicable surfaces were addressed in the areas observed. The hydrogen peroxide-based disinfectant was used on all surfaces. Other products were not observed on the carts. Potomac-Hudson Engineering, Inc Page 8 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 218 of 232 DC Department of Corrections July 23, 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1B. FINDINGS FOR DC DOC CORRECTIONAL TREATMENT FACILITY RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION RECOMMENDED CORRECTIVE ACTION ieee CORRECTIONAL TREATMENT FACILITY (CTF)/SPECTRUM MANAGEMENT The contractor was observed mixing and handling both the concentrated form of the peroxide disinfectant as well as the diluted form. In its concentrated form, the disinfectant has a pH of less than 2 and is extremely corrosive. Even in its diluted form, the disinfectant is still corrosive and presents danger to users. Contractor personnel were not wearing certain personal protective equipment (PPE) while performing these tasks. The contractor was also observed using the fogging unit without eye protection. It is recommended that the personnel handling | Appropriate personal protective and mixing the disinfectant in the mixing equipment was worn during mixing and room wear goggles and/or face shield to transfers of the disinfectant. Fogging protect their eyes and face. Consider also was not conducted on the day of the requiring longer gloves that cover exposed follow-up inspection. skin between hands and sleeves. Consider requiring the contractor to where eye protection during fogging. No additional action is required on the part of Spectrum Management. PHE will attempt to observe fogging during the next oversight inspection. Potomac-Hudson Engineering, Inc Page 9 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 219 of 232 DC Department of Corrections Environmental Conditions Inspection July 23, 2020 Follow-Up Onsite Audit Inspection Report CORRECTIVE ACTION PLAN PHE has developed a brief corrective action plan (CAP) as part of this document. A CAP is a step-by-step plan of action that is developed to achieve targeted outcomes for resolution of identified errors in an effort to: e Identify the most cost-effective actions that can be implemented to correct error causes e Develop and implement a plan of action to improve processes or methods so that outcomes are more effective and efficient e Achieve measurable improvement in the highest priority areas e Eliminate repeated deficient practices DISCUSSIONS WITH CONTRACTORS The findings made by PHE should be discussed directly with supervisors for each cleaning contractor, including potentially sharing this document with them. Each of the deficiencies should be identified, and the recommendations for correction should be explored. It is possible that the contractors may identify and suggest other corrective measures as alternatives to those suggested in this document. As long as the same goal is reached, any alternative or additional procedures can be implemented as well. PERIODIC RE-INSPECTIONS AS part of the existing scope of work, PHE is scheduled to conduct up two (2) follow up monthly site inspections to ensure that the contractors are adhering to the recommended protocols and that noted deficiencies have been corrected. As part of these follow-up inspections, PHE will hold a short, informal out-brief at the end of each day to discuss any findings or other observations made, and present options for correction. PHE also recommends that DOC personnel perform additional inspections, as needed, based on the results of the PHE follow-up inspections, if deficiencies continue to be identified. EFFECTIVENESS EVALUATION The DOC will continue to check the temperature of personnel arriving onsite and require face masks for the foreseeable future. The DOC will also continue to perform voluntary testing of individuals onsite (both employees and inmates) every two weeks. As the year continues on, it is likely that additional waves or peaks may be observed throughout the region. DOC should closely monitor the number of persons onsite testing positive during these times to evaluate the effectiveness of all current procedures, including cleaning and disinfection. Changes should be made, as applicable and appropriate, to ensure that each facility is doing as much as possible to protect all personnel from the virus. Potomac-Hudson Engineering, Inc ah Page 10 WF Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 220 of 232 FOLLOW-UP ONSITE AUDIT INSPECTION REPORT No. 2 ENVIRONMENTAL CONDITIONS INSPECTION FOR SARS-CoV-2 (COVID-19) DISINFECTION AND CLEANING PROTOCOLS DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS (DC DOC), CENTRAL DETENTION FACILITY (CDF) AND CORRECTIONAL TREATMENT FACILITY (CTF) September 2020 DRAFT Prepared for District of Columbia Department of Corrections 2000 14* Street NW, 7* Floor Washington, DC 20009 Prepared by Potomac-Hudson Engineering, Inc. 77 Upper Rock Circle, Suite 302 Rockville, MD, 20850 GSA Contract No. 7QRAA18D0074 Task Order No. CW82753 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 221 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report INTRODUCTION In January 2020, a novel virus, SARS-CoV-2, was identified as the cause of an outbreak of viral pneumonia in Wuhan, China and subsequently led to the world-wide spread of coronavirus disease 2019 (COVID-19). COVID-19 is primarily transmitted via person-to-person contact; however, surface contamination is also known to be a concern with the spread of the virus. The virus is mainly spread through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land on people who are nearby (within 6 feet). It may also be possible for a person to contract SARS-CoV-2 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes. In May 2020, the District of Columbia Department of Corrections (DC DOC) contracted Potomac-Hudson Engineering, Inc. (PHE) to develop a cleaning and disinfection protocol specific to COVID-19 to be used by DC DOC cleaning contractors. The purpose of the protocol is to provide guidance on proper disinfection practices and personal protective equipment (PPE) requirements. Frequent, effective, and safe cleaning and disinfecting procedures can help prevent the spread of disease to DC DOC inmates, staff, and visitors. PHE provided a draft protocol to DC DOC on June 15, 2020 and conducted initial on-site observational inspections to verify compliance with the protocol on June 29 and July 1, 2020. Following these observational inspections, the disinfection protocol was revised, and a report was provided to DC DOC summarizing the inspections and recommending a number of corrective actions to improve work practices and procedures. An initial follow-up observational inspection was conducted on July 20, 2020 to verify implementation of the corrective action recommendations by the contractors who are conducting the disinfection, and a follow-up report was issued on July 23, 2020. On September 28, 2020, PHE conducted a second follow-up site visit to inspect the cleaning and disinfection process. This document provides a summary of PHE’s observations, findings, and recommendations. AUDIT OVERVIEW SCOPE Christopher Rua, CHMM and Gary Morris, CIH of PHE conducted the follow-up inspection of the DC DOC Central Detention Facility (CDF) and the Correctional Treatment Facility (CTF) on September 28, 2020. This report contains observations from this follow-up inspection, deficiencies and deviations from prescribed work practices and procedures, and corrective action recommendations. At the conclusion of the inspection, an Out-Brief Meeting was held to summarize observations, deficiencies, and corrective action recommendations from the follow up inspection. This meeting was attended by: e = Mr. Lennard Johnson, Warden (DOC) e Ms. Kathy Landerkin, Deputy Warden (DOC) e = =6Ms. Jackie Smith, Site Safety Officer (DOC) e = =6Ms. Gloria Roberts, Compliance and Review Officer (DOC) e =6Ms. Michele Jones, CTF Programs (DOC) e = =Mr. Christopher Rua (PHE) e = =Mr. Gary Morris (PHE) Sanitizing and disinfection of the CDF is being conducted by G-SIDA General Services, LLC (G-SIDA) and by Spectrum Management, LLC (Spectrum) in the CTF. It should be noted that G-SIDA replaced Rock Solid Management Group, LLC as the contractor at the CDF on August 5, 2020. This was PHE’s first observation of this contractor. Potomac-Hudson Engineering, Inc. Page 1 a’ Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 222 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report SUMMARY OF FINDINGS Table | contains a summary of the findings from this oversight inspection as well as the recommended corrective action contained. Positive observations from the follow-up inspection consist of the following: ¢ Some of the staff of both contractors did not wring out the rags after dipping in the bucket, increasing adequate coverage and contact time of surfaces (the rags were visibly soaked with the disinfectant). e Staff of both contractors carried the dip buckets and mop buckets with them to the areas in which they were disinfecting, increasing the frequency of re-wetting of the rags and mops. ¢ Contractor staff periodically refilled the wipe buckets with the disinfectant and changed mop water and mop heads several times throughout the day. e Fans positioned in the housing blocks are now turned off during sanitizing to help extend contact time. ¢ Mop and rag buckets are filled by DOC staff to ensure consistent filling practices. Bleach solutions are also mixed by DOC staff and filled in spray bottles to ensure proper bleach/water ratios in the spray bottles. e Spectrum crew wet wiped surfaces in the CTF Visitor’s Entrance with the sanitizing solution and when dry, applied the solution a second time via a spray bottle and allowed the solution to air dry. In general, significant improvement was observed during this site visit compared to previous site visits. Potomac-Hudson Engineering, Inc. Page 2 ash Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 223 of 232 DC Department of Corrections September 2020 Environmental Conditions Inspection Follow-Up Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY AND CONDITIONAL TREATMENT FACILITY SUMMARY OF FINDING RECOMMENDED CORRECTIVE ACTION The contractor did not consistently allow for the 45-second minimum contact time required for the hydrogen peroxide-based disinfectant (Ecolab Peroxide Multi Surface Cleaner and Disinfectant). Some contractor employees were not re-wetting their rags with sufficient frequency. As a result, some walls and other surfaces did not stay wetted for a full 45 seconds. This was particularly noted for the gates in the common areas near the elevators due to the intricate design and abundant surface area. The contractor continues to dry sweep all floors prior to disinfection in contradiction to the cleaning protocols, due to the limited availability of acceptable (i.e. plastic as opposed to metal) dusting brooms. Since dry sweeping can cause virus present on the floor to become airborne for several hours, increasing the contact and inhalation risk it presents, every attempt should be made to sweep in a slow, smooth motion. The contractors were observed to be sweeping in a rapid manner in several area. In some cases, contractor personnel were observed cleaning the surfaces of phones and other electronic devices (e.g., computer screens, keyboards) with a hand sanitizer. While this is technically sufficient for disinfection, the proper contact time may or may not be properly achieved. Disinfectants with ethyl alcohol as the active ingredient, such as hand sanitizer, require a minimum contact time ranging from 30 seconds up to 10 minutes, depending on the specific product and concentration. Periodically remind contractor staff that the objective of their work is to disinfect surfaces as opposed to cleaning the surfaces, reinforcing the required 45-second contact time. Instruct crew staff to liberally wet the rags and avoid wringing them out. Consider instructing the crews to have a brief onsite meeting at the beginning of each day to discuss these practices to reinforce the instructions. In the common areas, consider using the pump sprayer to thoroughly wet the gates. The sprayer will be able to coat the entirety of the surfaces more completely and efficiently than hand wiping. It has been recommended that the facility procure dusting brooms (e.g., Swifter Sweepers or equivalent) which use electrostatic forces to attract and remove dirt and dust, to replace the current dry sweeping brooms. However, DC DOC has not yet been able to procure the dust mops through their supplier and is investigating additional suppliers. Continue attempts to procure the dust mops. Until the dusting brooms are procured, ensure the contractor uses a slow, smooth wiping action and change out or clean the dust broom pads/heads on a regular basis to maximize the effectiveness of the brooms to collect as much dust and dirt particulates as possible. The U.S. Environmental Protection Agency (USEPA) has compiled a list of disinfectants (List N) approved for effective use for COVID-19. The list is arranged by USEPA Registration Number, product name, manufacturer, active ingredient, and other criteria. Each product included on List N is denoted with the minimum contact time required to be effective against COVID-19. The list can be found here: https://cfpub.epa.gov/giwiz/disinfectants/index.cfm. If hand sanitizer is to be used on a regular basis for these surfaces, the product should be cross-checked against this list to determine if the product is approved and identify the proper contact time. Alternatively, if safe to use on phones and other electronic devices, consider using the Ecolab Peroxide Multi Surface Cleaner and Disinfectant on these surfaces for consistency. Potomac-Hudson Engineering, Inc Page 3 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 224 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report TABLE 1. FINDINGS FOR DC DOC CENTRAL DETENTION FACILITY AND CONDITIONAL TREATMENT FACILITY In general, both contractors use dedicated sets of mops for bathrooms and locker | Ensure at all times that mops used for bathrooms and locker rooms are not used rooms which are separate from the mops they use in offices and common areas. in administrative and common areas. However, in area C3-112 at the CTF, Spectrum personnel were observed using the same mop for two offices and a small hallway that was also used for a single-stall bathroom in that area. It appears that the contractors did not know a bathroom was located in this area and therefore only brought one set of mops with them to this location. Fogging is not being conducted by G-SIDA in the CDF due to the omission of As planned, include fogging in the next G-SIDA contract. this in the current contract. Potomac-Hudson Engineering, Inc Page 4 ak Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 225 of 232 DC Department of Corrections Environmental Conditions Inspection September 2020 Follow-Up Onsite Audit Inspection Report CORRECTIVE ACTION PLAN PHE has developed a brief corrective action plan (CAP) as part of this document. A CAP is a step-by-step plan of action that is developed to achieve targeted outcomes for resolution of identified errors in an effort to: e Identify the most cost-effective actions that can be implemented to correct error causes e Develop and implement a plan of action to improve processes or methods so that outcomes are more effective and efficient e Achieve measurable improvement in the highest priority areas e Eliminate repeated deficient practices DISCUSSIONS WITH CONTRACTORS The findings made by PHE should be discussed directly with supervisors for each cleaning contractor, including potentially sharing this document with them. Each of the deficiencies should be identified, and the recommendations for correction should be explored. It is possible that the contractors may identify and suggest other corrective measures as alternatives to those suggested in this document. As long as the same goal is reached, any alternative or additional procedures can be implemented as well. PERIODIC RE-INSPECTIONS As part of the existing scope of work, PHE is scheduled to conduct one additional follow-up site inspection to ensure that the contractors are adhering to the recommended protocols and that noted deficiencies have been corrected. As part of the follow-up inspection, PHE will hold a short, informal out-brief at the end of each day to discuss any findings or other observations made and present options for correction. PHE also recommends that DC DOC personnel perform additional inspections, as needed, based on the results of the PHE follow-up inspections, if deficiencies continue to be identified. EFFECTIVENESS EVALUATION The DC DOC will continue to check the temperature of personnel arriving onsite and require face masks for the foreseeable future. The DC DOC will also continue to perform voluntary testing of individuals onsite (both employees and inmates) every two weeks. As the year continues on, it is likely that additional waves or peaks in the number of virus cases may be observed throughout the region. DC DOC should closely monitor the number of persons onsite testing positive for COVID-19 during these times to evaluate the effectiveness of all current procedures, including cleaning and disinfection. Changes should be made, as applicable and appropriate, to ensure that each facility is doing as much as possible to protect all personnel (employees, inmates, contractors, and visitors) from the virus. Potomac-Hudson Engineering, Inc ah Page 5 yr Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 226 of 232 Ex N Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 227 of 232 Environmental Sanitarian CS-1801-12 INTRODUCTION This position is located in the Department of Corrections (DOC), Office of Accreditation and Compliance located inside the Central Detention Facility (CDF), and Correctional Treatment Facility (CTF). The operational focus is to ensure facilities’ compliance with applicable life/health safety rules, regulations, and guidance. The position provides environmental safety and sanitation oversight for the DOC facilities. Environmental Sanitarian (ES) ensures that the DOC cleaning contractors adhere to the DOC cleaning protocol and that all facilities are clean, sanitary and environmentally safe, and the facilities and equipment are maintained in good working order/condition as well as the laundry operations, barber and cosmetology, and commissary areas. MAJOR DUTIES Plans, designs, develops, and coordinates correctional environmental safety and sanitation initiatives; and serves ina key supporting role for the implementation of strategic departmental initiatives focusing on core correctional business needs and on support requirements as it relates to environmental safety and sanitation of the CDF and CTF. Ensures day-to-day oversight for compliance with applicable regulations, codes and standards relevant to the mission and goals; coordinates inspections conducted by the DC Department of Health (DOH) and conducts comprehensive and thorough inspections to ensure that the facilities are compliant. Maintains a manual and automated reporting system to keep up to date with inspection schedules and cleaning squads/crews; and coordinates with department managers, supervisors, officers, and employees regarding the cleaning and inspection schedules. Provides instructions and guidelines to detail squads; replenishes/orders supplies and tools for cleaning purposes, and documents whether the operation is compliant with prevention, identification and abatement activities. Addresses departmental issues and key initiatives; and assists inthe development of funding and resource proposals to support program initiatives. Recommends revisions to internal policies to avoid conflicts regarding how to accomplish mission and goals of the program; and interfaces with key officials within the Department, with other Federal and District Government agencies and the private sector inthe course of working out administrative systems and procedures that are inherent in attaining the goals. 1of5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 228 of 232 Environmental Sanitarian CS-1801-12 Ensures and assesses the inspections of all facility areas e.g., weekly/monthly/annually; collaborates with supervisors and managers to designate employees to conduct regular internal inspections to identify and document deficiencies. Ensures sanitation supplies are available for distribution; and are distributed to the units based on an approved schedule. Collaborates with correctional officers and supervisors to ensure cleaning equipment is utilized inthe proper manner and makes inspections a part of their daily tasks. Makes rounds with designated staff. Rounds shall include inspections of showers, dayrooms, on-unit classrooms and recreation areas, chase closets and storage area supply closets, tiers, and the control bubble. Inspections require each program manager or designee to be present when the SIS performs inspections of areas such as the medical unit, the warehouse, storage rooms, shops, commissary, food services, etc. It is expected that joint inspections shall result in collaborative resolutions. Collaborates with the Facilities Maintenance manager regarding repairs, based on schedule, visits housing units to conduct a general visual inspection for cleanliness and ensures that adequate cleaning supplies are available and equipment and fixtures are operational in common areas. Reviews inspection reports of cells and ensures cells are free from graffiti and peeling paint. Managers affected by this report are responsible for preparing a closed out Corrective Action Plan (CAP) to the SIS and appropriate DOC manager official. The SIS follows up onthe CAP to ensure adequate corrective action is taken ina timely manner. Evaluates performance management for operational efficiency and support services for effectiveness; and participates in scheduled or random audit reviews of internal programs offices. Evaluates and documents results of each program audit; and prescribes corrective action or remediation in difficult and complex work assignments. Develops new approaches, methods, or procedures in data gathering and analysis techniques; and recognizes and resolves discrepancies and/or inconsistencies among the findings. Makes sure cellblock control modules, administrative areas, office areas, medical unit, Inmate Reception Center (IRC), and other areas are thoroughly cleaned; and coordinates with maintenance staff for cleaning air vents, windows and high walls. Maintains documentation relevant to DOH inspections, corrective action plans and abatement schedules and determines the frequency of required treatments. 20f5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 229 of 232 Environmental Sanitarian CS-1801-12 Keeps in contact with the DC Departments of Health, Occupational Safety and Health Administration, DC Fireand Emergency Management and other independent consultants. Performs other related duties as assigned. KNOWLEDGE REQUIRED BY THE POSITION Must possess a Certificate or License as a Registered Sanitarian OR be able to obtain certification or licensing within 180 days of employment OR must meet the following minimum standards to sit for the certification exam: a) Bachelor’s Degree in Sanitary Science or Sanitary Engineering from an institution on the list of accredited colleges of the United States Office of Education, or any like institution approved by the Board. or b) Bachelor’s Degree with a minimum of thirty (30) semester hour’s credit of basic sciences from an institution on the list of accredited colleges of the United States Office of Education (or any like institution approved by the Board), plus one (1) year full time experience in Environmental Health Thorough knowledge of District, Federal and national standards for correctional management policies and procedures as it relates to environmental safety and sanitation of correctionalfacilities. Thorough knowledge regarding standards, policies and procedures applicable to all facets of correctionaloperations. Thorough knowledge of and skill in applying a wide range of complex inspection, and compliance principles, concepts, and practices; and thorough understanding of the operating problems in working in a correctional setting. Ability to instruct squads of special detail inmate workforce ensuring compliance with applicable environmental health regulations, codes and standards; and an in- depth knowledge of the practices, procedures and responsibilities related to the operation and maintenance of adult detention facilities. Ability to perform research, conduct meetings and coordinate group efforts in order to implement a cohesive environmental safety and sanitation program. Ability to gather, assemble, and analyze facts, draw conclusions and interpret relevant regulations and policies. Thorough knowledge and research skills to keep abreast of emerging standards and state of the art best practices for the correctional administration's environmental safety and sanitation program; and ability to ensure that the program is effectively operating. 30f5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 230 of 232 Environmental Sanitarian CS-1801-12 Proficient in computer operations and software in order to maintain resource contact, develop spreadsheets/data bases, and report preparations as well as a tracking system. SUPERVISORY CONTROLS Works under the supervision of the Compliance and Review Officer, who outlines overall objectives and available resources and discusses projects, specific timelines, and determines the parameters of the SIS's responsibilities as well as the expected outcomes. The incumbent determines the most appropriate avenues to pursue; decides the practices and methods to apply in all phases of assignments including the approach to take, and the depth and intensity needed; interprets policy and regulations and resolves most conflicts as they arise; coordinates squad details with others as required; and keeps the supervisor informed of progress and potentially,controversial matters. The work is not normally reviewed for methods used. Completed assignments are reviewed for soundness of overall approach; effectiveness in producing results; feasibility of recommendation and adherence to deadlines, compliance and requirements. GUIDELINES Guidelines include District and Federal regulations, standards, codes, manuals, department policies and procedures, American Gorrectional»Association (ACA) expected practices, legislative requirements, and bestpractices and benchmarks from comparable jurisdictions thatiare relevant to environmental safety and sanitation. These are not completely applicable to the work or have gaps in specificity requiring the SIS to be resourceful and diligent when improvising and/or determining the best practiceito'use. Judgments utilizedwhen interpreting, adapting, applying, and deviating from guidelines. Analyzes the results of such adaptations and recommends changes in established methods and procedures. COMPLEXITY The work consists of a variety of complex tasks that involves planning, coordinating and providing advice regarding environmental safety and sanitation procedures. The work requires complex-efforts in problem solving and analysis directed toward the appropriate resolution to specific issues, situations and problems. Also, the work may often involve interpretations of regulatory procedures and a high degree of precision and confidence, supplementing these conclusions with credible information from a variety of sources, defending conclusions and recommending resolutions to the critical problems encountered usually in writing, but often in briefing sessions before agency management. The work also consists of analyzing data from a variety of sources, considering the impact, interrelationships, and confirms the accuracy and authenticity of information, and resolves issues of contradictory, missing, or inconclusive data. 4of5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 231 of 232 Environmental Sanitarian CS-1801-12 SCOPE AND EFFECT The purpose of the work is designed to ensure the highest standards of management effectiveness, consistent with resource requirements, application practices and national standards for environmental safety and sanitation codes. Work efforts result inthe disruption of large-scale organized activities and practices and procedures promotes the health, safety or fair treatment ofa large population. The work may also result in improved planning and operational aspects of the program. PERSONAL CONTACTS Contacts are with upper and mid-level departmental management officials and supervisors, inmates, contractors, correctional.officers/supervisors, etc. PURPOSE OF CONTACTS Purpose of Contacts involves frequent unstructured face=to-face meetings and contacts with institution staff, correctional professionals within and outside of the DOC and/or public officials. Provides expertise and advice on various matters associated with environmental safety and sanitation issues, collect and exchange information, prepare reports, analyze and resolve problems, develop new implementation strategies and proposes new approaches. Contacts are also made to establish rapport needed tothe fulfillment of missionof the program, which address many areas ofdnstitutional operations. Other contacts may occur for the purpose of providing policy guidance, advice and/or training. PHYSICAL, DEMANDS The work is primarily sedentary, however, the incumbent is subject to long periods of standing, walking, stooping or crouching during inspection process. WORK ENVIRONMENT Work is performed in both an office and correctional institutional facility environment. Administrative functions are performed in the office setting and inspections and investigations are performed in the facility. OTHER SIGNIFICANT FACTS NOTE: The incumbent is this position must provide a certificate of good standing as a Registered Sanitarian or proof of ability to sit for examination towards certification from the applicable state, local, or municipal authority. NOTE: The incumbent of this position will be subject to enhanced suitability screening pursuant to Chapter 4 of DC Personnel Regulations, Suitability — Safety Sensitive. 5 of 5 Case 1:20-cv-00849-CKK Document 138-2 Filed 12/12/20 Page 232 of 232 Environmental Sanitarian CS-1801-12 The incumbent in this position is designated as an essential employee. Flexibility in work schedule is required. 6o0f5 Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 1 of 26 Ex A Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 2 of 26 LEGAL CALLS Emergency Calls to Private and Public Attorneys (April 20 - October 15, 2020) 100% 90% 80% - a 60% - 7 - a 30% N=1,286 Completed, Attempted, Notified: 1,077 7 0% Not Completed, Attempted, Notified: 209 Not Completed, Attempted, Notified: 116 2 10% N=448 N=1,507 N=1415 Completed, Attempted, Notified: 378 Completed, Attempted, Notified: 1,341 Completed, Attempted, Notified: 1,331 o% Not Completed, Attempted, Notified: 70 Not Completed, Attempted, Notified: 166 Not Completed, Attempted, Notified: 84 April 20-30, 2020 May 2020 June 2020 July 2020 August 2020 September 2020 October 1-15, 2020 ™% Completed, Attempted, Notified ™ % Not Completed, Attempted, Notified *PCM started collecting this data beginning April 20, 2020. DC DOC experienced system outages due to DCNET service outages on April 20, 2020 for six hours between 1 and 7 PM and on April 21, 2020 for four hours between 8 AM and 12 PM. Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 3 of 26 Ex B Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 4 of 26 LEGAL CALLS CONT. Number of Emergency Legal Calls Requested by Public and Private Attorneys (April 20 - October 15, 2020) 1800 April 20 - October 15 2020 Total # calls requested: 8,636 Total # calls CMs responsible for: 8,602 1,623 1600 Average # of calls requested per day: 69 Calls completed, attempted, and/or notified: 91% 1,507 1,526 1,415 1400 1,286 Average # of calls requested per day: 69 Average # of calls requested per day: 77 Calls completed, attempted, and/or notified: 92% Calls completed, attempted, and/or notified: 95% 1200 Average # of CMs physically reported to work: 13 Average # of CMs physically reported to work: 15 Average # of calls requested per day: 64 Calls completed, attempted, and/or notified: 84% Average # of CMs physically reported to work: 11 1000 Average # of calls requested per day: 69 831 800 Calls completed, attempted, and/or notified: 89% Average # of CMs physically reported to work: 14 [7 Average # of calls requested per day: 67 Average # of calls requested per day: 83 Average # of calls requested per day: 50 Calls completed, attempted, and/or notified: 94% Calls completed, attempted, and/or notified: 95% 600 Calls completed, attempted, and/or notified: 84% Average # of CMs physically reported to work: 14 Average # of CMs physically reported to work: 16 400 200 oO April 20-30, 2020 May 2020 June 2020 July 2020 August 2020 September 2020 October 1-15, 2020 @PDS MFPD MPrivate *Due to COVID-19, PCM began to track and analyze emergency legal call data on April 20, 2020. DOC experienced system outages due to DCNET service outages on April 20, 2020 for six hours between 1 and 7 PM and on April 21, 2020 for four hours between 8 AM and 12 PM. Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 5 of 26 Ex C Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 6 of 26 —— FIRSTNET. Order mE Built with AT&T Confirmation Billing Address: DF FirstNet WMS Order Type Page: 1 12735 MORRIS ROAD BLDG 200 STE 30 ALPHARETTA, GA 30004 Shipping Address: DC OFFICE OF THE CHIEF TECHNOLOGY Office WMS Order#: 587640299 Entry Date: 05/01/2020 1901 DST SE Invoice#: 587640299 Picked: 05/04/2020 DC Dept. of Corrections Central Your Order#: 55-675000001203526 Ship ID: 660902780 Detenti Customer PO#: N101-OY-456747 PONTI ANDREWS - RTS 10047 WASHINGTON, DC 20003-2534 Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025529830 1 ft) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO ‘ana FIRSTNET 6376B SIMVAR 2026151639 4 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO 9 mene FIRSTNET 6376B SIMVAR 2026152845 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO mee FIRSTNET 6376B SIMVAR 2026152916 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO quences FIRSTNET 6376B SIMVAR 2026000372 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO 9 @ammprgesenesmmssnm FIRSTNET 6376B SIMVAR 2026152667 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO qqupemeeemeemenemmm, FIRSTNET 6376B SIMVAR 2026150385 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO queen FIRSTNET 6376B SIMVAR 2026000175 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO eee FIRSTNET 6376B SIMVAR 2026000659 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO qqpseemmettionoiny, FIRSTNET Case 1:20-cv-00849-CKK aaa FIRSTNE T.. Document 138-3 Filed 12/12/20 Page 7 of 26 Order s . Page: 2 meee’ Built with AT&T Confirmation Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025529430 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO — eeanegeng nD FIRSTNET 6402B PHOSONXP5S = 2026152916 1 () 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S = 2026151639 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S 2026152845 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S —_ 2026000372 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S 2026152667 1 ) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150385 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S = 2026000175 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S = 2026000659 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHOSONXP5S = 2025529430 1 ) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025529830 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 i) 1 $0.00 $0.00 $0.00 STICKER 84671 COLFIRSTNET 1 i) 1 $0.00 $0.00 $0.00 STICKER 84671 COLFIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COLFIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 8 of 26 —— FIRSTNET. Order mY Built with AT&T Confirmation Page: 3 Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T 88879 PRIORITY 1 0 1 $0.00 $0.00 $0.00 FREIGHT TAXED Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 9 of 26 —=— FIRSTNET. Order . . Page: 4 MEQ Built with AT&T Confirmation 9 Payment Method Shipping Sub Total BTM $999.90 *Down Payment $0.00 Amount Financed $0.00 Other Charges $999.90 Sales Tax $0.00 Federal Tax $0.00 Paid Today $999.90 Shipment Total $999.90 Order Comment: You can use the enclosed return label to exchange/refund one device per purchase up to 14 days from shipping date of device; Corporate Responsibility Users (CRU's) under an AT&T business agreement have up to 30 days to return devices other than tablets. Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 10 of 26 —— FIRSTNE1. Order . . . Page: 1 SN Built with AT&T Confirmation ° Billing Address: DF FirstNet WMS Order Type 12735 MORRIS ROAD BLDG 200 STE 30 ALPHARETTA, GA 30004 Shipping Address: DC OFFICE OF THE CHIEF TECHNOLOGY Office WMS Order#: 587640300 Entry Date: 05/01/2020 1901 D ST SE Invoice#: 587640300 Picked: 05/04/2020 DC Dept. of Corrections Central Your Order#: 55-675000001203455 Ship ID: 660902840 Detenti Customer PO#: N101-OY-456741 PONT! ANDREWS - RTS 10047 WASHINGTON, DC 20003-2534 Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025772117 1 0 1 $0.00 $0.00 $0.00 FIRSTNETTRIO ——_—— FIRSTNET 6376B SIMVAR 2026151845 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO — aueammneeeeenn> FIRSTNET 6376B SIMVAR 2025683486 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = amperes FIRSTNET 6376B SIMVAR 2026150390 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO 94 oa FIRSTNET 6376B SIMVAR 2025507097 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO FIRSTNET 63768 SIMVAR 2026000350 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO ‘Samana FIRSTNET 6376B SIMVAR 2026000585 1 i) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO quays FIRSTNET 6376B SIMVAR 2025529446 1 0) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = queen FIRSTNET 6376B SIMVAR 2025682568 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO EE FIRSTNET Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 11 of 26 aaa FIRSTNET.. Order e e Page: 2 SNR Built with AT&T Confirmation ° Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025529642 1 0 4 $0.00 $0.00 $0.00 FIRSTNET TRIO queen FIRSTNET 6376B SIMVAR 2025683532 1 0 4 $0.00 $0.00 $0.00 FIRSTNET TRIO 9 qauaguepneeennnnnna FIRSTNET 6376B SIMVAR 2025529893 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO — queue FIRSTNET 6376B SIMVAR 2025683083 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO queens FIRSTNET 6376B SIMVAR 2026000432 4 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO enemas FIRSTNET 6376B SIMVAR 2025772759 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO 9 $item FIRSTNET 6376B SIMVAR 2026150588 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO epee FIRSTNET 6376B SIMVAR 2026151802 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO oD FIRSTNET 6376B SIMVAR 2025772313 4 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO —=—, FIRSTNET 6376B SIMVAR 2025507923 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO qqueEEe FIRSTNET 6376B SIMVAR 2025682918 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO Cuaeeeeemmnan, FIRSTNET 6376B SIMVAR 2026150342 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO queue FIRSTNET 6376B SIMVAR 2025772347 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO =Quumeuteeaenn FIRSTNET 6376B SIMVAR 2026000736 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO egseutemmemeees FIRSTNET Case 1:20-cv-00849-CKK aaa FIRSTNE J. Document 138-3 Filed 12/12/20 Page 12 of 26 Order . Page: 3 SN Built with AT&T Confirmation ° Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025509215 1 i) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO —eanamamanasgssmemm, FIRSTNET 6376B SIMVAR 2025683469 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO qq FIRSTNET 6376B SIMVAR 2026150659 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO ——qgupeeppmemmneememet> FIRSTNET 6376B SIMVAR 2025508675 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = que FIRSTNET 6376B SIMVAR 2026150174 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = oan FIRSTNET 6376B SIMVAR 2026001085 1 ) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO gaara FIRSTNET 6376B SIMVAR 2025683607 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO Gums FIRSTNET 6376B SIMVAR 2025682063 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO queer FIRSTNET 6376B SIMVAR 2026151851 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = queen FIRSTNET 63768 SIMVAR 2025682110 1 ) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO ee FIRSTNET 6376B SIMVAR 2025772887 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO = Ee FIRSTNET 6376B SIMVAR 2026150287 4 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO FIRSTNET 6376B SIMVAR 2025772685 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO «= queen FIRSTNET 6376B SIMVAR 2025682371 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO 9 quppppmmmsnsueneme, FIRSTNET Case 1:20-cv-00849-CKK aaa FIRSTNE I. Document 138-3 Filed 12/12/20 Page 13 of 26 Order . . Page: 4 Sm Built with ATE Confirmation ° Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6376B SIMVAR 2025772960 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO quummmmeeseeneneess, FIRSTNET 6376B SIMVAR 2026001473 1 0 1 $0.00 $0.00 $0.00 FIRSTNET TRIO Glue FIRSTNET 6376B SIMVAR 2026152365 1 ) 1 $0.00 $0.00 $0.00 FIRSTNET TRIO eens FIRSTNET 6402B PHO SON XP5S 2025507923 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026151845 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025683486 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150390 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025507097 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026000350 1 ft) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026000585 1 i) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025529446 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025682568 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025529893 1 0 { $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025529642 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025683532 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025683083 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026000432 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK Case 1:20-cv-00849-CKK aa FIRSTNE T.. Document 138-3 Filed 12/12/20 Page 14 of 26 Order Page: 5 ame Built with AT&T Confirmation , Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6402B PHO SON XP5S 2025772759 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150588 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026151802 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025772313 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025682918 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150342 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025772347 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026000736 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025509215 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025683469 1 i) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150659 1 ) 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025508675 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025683607 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026150174 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2026001085 1 0 1 $0.00 $99.99 $99.99 XP5800 BLK 6402B PHO SON XP5S 2025682063 1 ft) 1 $0.00 $99.99 $99.99 XP5800 BLK 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 Case 1:20-cv-00849-CKK aaa FIRSTNET.. Document 138-3 Filed 12/12/20 Page 15 of 26 Order . « Page: 6 AN Built with ATT Confirmation ° Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 ft) 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 ) 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 i) 1 $0.00 $0.00 $0.00 STICKER 84671. COLFIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 ) 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER Case 1:20-cv-00849-CKK aaa FIRSTNE T.. Document 138-3 Filed 12/12/20 Page 16 of 26 Order . . . Page: 7 mene Built with AT&T Confirmation Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 4 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 $0.00 $0.00 Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 17 of 26 — FIRSTNET. Order ey Built with AT&T Confirmation Page: 8 Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Ord Value STICKER 84671 COL FIRSTNET 1 0 1 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 STICKER 84671 COL FIRSTNET 1 0 1 $0.00 STICKER 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T 84683 COL 1 0 1 $0.00 WELCOMELETTER ALL FN SUB T Unit Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Total Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 18 of 26 aaa FIRSTNE T.. eee Built with AT&T Order Confirmation Page: 9 Item# 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 Description COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T Phone # QtyOrd Qty Back Ord 0 Taxable Unit $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Unit Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Total Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 19 of 26 ea FIRSTNE T.. ey Built with AT&T Item# Description 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 84683 COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T COL WELCOMELETTER ALL FN SUB T 0 Order Confirmation Phone # QtyOrd Qty Back Ord Taxable Unit $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Page: Unit Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Total Price $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Case 1:20-cv-00849-CKK aaa FIRSTNE T.. Document 138-3 Filed 12/12/20 Page 20 of 26 Order 2 2 Page: 11 Built with ATE Confirmation ° Item# Description Phone # QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 84683 COL 1 0 1 $0.00 $0.00 $0.00 WELCOMELETTER ALL FN SUB T Payment Method Shipping Sub Total BTM $3,999.60 *Down Payment $0.00 Amount Financed $0.00 Other Charges $3,999.60 Sales Tax $0.00 Federal Tax $0.00 Paid Today $3,999.60 Shipment Total $2,999.70 Order Comment: You can use the enclosed return label to exchange/refund one device per purchase up to 14 days from shipping date of device; Corporate Responsibility Users (CRU's) under an AT&T business agreement have up to 30 days to return devices other than tablets. Document 138-3 Filed 12/12/20 Order Confirmation Case 1:20-cv-00849-CKK aa FIRSTNET. ee Built with AT&T Page 21 of 26 Page: 1 Billing Address: DF FirstNet WMS Order Type 12735 MORRIS ROAD BLDG 200 STE 30 ALPHARETTA, GA 30004 Shipping Address: DC OFFICE OF THE CHIEF TECHNOLOGY Office 1901 D ST SE DC Dept. of Corrections Central Detenti WMS Order#: 587640300 Invoice#: 587640300 Your Order#: 55-675000001203455 Customer PO#: N101-OY-456741 05/01/2020 05/04/2020 660902840 Entry Date: Picked: Ship ID: PONT! ANDREWS - RTS 10047 WASHINGTON, DC 20003-2534 Item# Description Phone # QtyOrd Qty Back Ord ShipQty Taxable Unit Value Unit Price Total Price 6402B 6402B 6402B 6402B 6402B 6402B 6402B 6402B 6402B PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK PHO SON XP5S XP5800 BLK 2026151851 2025682110 2025772887 2026150287 2025772685 2025682371 2025772960 2025772117 2026001473 1 0 1 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 $99.99 Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 22 of 26 —=— FIRSTNET. Order = . Page: 2 mY Built with AT&T Confirmation 9 Item# Description Phone# QtyOrd Qty Back ShipQty Taxable Unit Unit Total Ord Value Price Price 6402B PHO SON 2026152365 1 0 1 $0.00 $99.99 $99.99 XP5S XP5800 BLK 88879 PRIORITY 1 0 1 $0.00 $0.00 $0.00 FREIGHT TAXED Payment Method Shipping Sub Total $0.00 *Down Payment $0.00 Amount Financed $0.00 Other Charges $0.00 Sales Tax $0.00 Federal Tax $0.00 Paid Today $0.00 Shipment Total $999.90 Order Comment: Return Policy You can use the enclosed return label to exchange/refund one device per purchase up to 14 days from shipping date of device; Corporate Responsibility Users (CRU's) under an AT&T business agreement have up to 30 days to return devices other than tablets. ———— a eT Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 23 of 26 PROOF-OF-DELIVERY - VENDOR ACKNOWLEDGEMENT/ACCEPTENCE FORM Vendor Name TECKNOMIC Vendor Address 1725 I Street, N.W., Suite 300, WASHINGTON DC 20006 Vendor Phone Number 202-829-2953 Phone Number (10 Digit): SAN Number: O-2005-FL001-03-71 RTS Number: 100561 22Quantity: ATC Name & Number: PONTI ANDREWS Serial Number: Site Contact: Model Number: Site Location: Order Information and Details: Please provide specific remarks regarding the work performed or the equipment and devices delivered regarding this order. Request for 50 Retro Bluetooth Handsets Tecknomic Quote 1041 Please Ship equipment to: Ponti Andrews - ATC DC Dept. of Corrections Central Detention Facility 1901 D St. SE Washington, DC 20003 202-52 3- 7100 I certify the above information Is accurate: (Technician or Company Representative) [_ /20 (Printed Name) (Signature) (Date) Government Acceptance: (Authorized Government Representative) fb anend (Fsu x Lo o] pyro / (Printed Name) i/ (Signature) / (Date) Comments: Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 24 of 26 Ex 6 < coat Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 25 of 26 U.S. Department of Justice United States Marshals Service 1. IDENTIFYING INFORMATION Name (Last, First, M): as Age: usms #: Departed From: DC-DOC Designated To: USMS Mode of Transport (Check all that apply): "3. CURRENT MEDICAL ISSUES amieen Prisoner in Transit Medical Summary 2. TUBERCULOSIS SCREENING Departure Date: 10/26/2020 CT] Air a Ground Tuberculosis Skin Test (TST) / PPD: Date Placed: Date Read: Size in mm: 10-23-2020 10-25-2020 Omm Tuberculosis Blood Test /IGRA (if applicable): —f [_]| Positive Date: C] Negative [ | Indeterminate / Borderline Chest x-ray done within past year (if indicated): Check all that apply to the prisoner and explain in the comments section: [_] Hospitalizations within past month CT Seizure activity within past month | Seizure disorder requiring medications [_] Limited mobility (crutches, wheelchair) [_] Has hard or air cast, splint or brace C] Contagious illness or quarantine within past month Py Cardiac chest pain within past month [_] Stroke within past month [_] Surgery within past month CT] Diabetes requiring insulin or other medications C] Prescription narcotic pain medications dispensed for travel [_] Suicide watch/psychiatric decompensation within past month Date: Results: Prisoner is cleared for transfer: [-] NO [x] YES 4. SICKLE CELL SCREENING Prisoner has a history of (check appropriate box): [_] Sickle Cell Disease [_] Sickle Cell Trait FEMALE PRISONERS: Is prisoner pregnant? [X] No History of Disease or Trait [_] No [_] YES If yes, how many weeks? N/A : : = —— If prisoner has disease or trait and is traveling by 5. LIST ALLERGIES (Include drugs, foods, latex, etc.): air, has JPATS Sickle Cell Protocol and Clearance arm eee oe ———___——_—— been completed? []No [] YES Attach clearance to transfer summary 6b. MEDICATIONS DISPENSED WITH PRISONER FOR TRANSPORT (Should match medical problem if applicable. Include dosage, route, and frequency.) 6a. OTHER MEDICAL PROBLEMS 7. COMMENTS (If additional space is needed, write on back, attach separate sheet of paper, or check this box to create a second page: [_] ) MANDATORY SYMPTOM SCREENING FOR COVID-19 PRIOR TO DEPARTURE FROM FACILITY 1. Temperature: 96.8 Date: 10/26/2020 Time: 05:50 PM 2. Complains of feeling feverish: CT] Yes "Bal No [] Yes [x] No | 4. Difficulty breathing: [] Yes [XJ No | If temperature is 100.4F or greater OR answer is "Yes" to ANY other question, | the prisoner is NOT CLEARED FOR TRANSFER until evaluated and cleared “Additional Comments: Cleave by Mit Yt Oct 24, 2828 3. Presence of cough: by a licensed independent practitioner who must complete Section 8 below as } the "Certifying Health Authority” "| 8. CERTIFYING HEALTH AUTHORITY JER IS MEDICALLY CLEARED FOR TRAVEL. GES Name (Print): Title: | “) £6) Phone Number: _ Page of __ Card PP fed | ac Vor C| ph v7 MH UL TOn Ii ne : Signature: Date: Form USM-553 Rev. 03/20 —d Case 1:20-cv-00849-CKK Document 138-3 Filed 12/12/20 Page 26 of 26 Central Detention Facility November 4, 2020 1901 D Street, SE Washington, DC 20003 Page 1 Fax: TextNote Home: 333876 Male DOB: fF 10/26/2020 - TextNote: / Not Cleared for fed transfer. Provider: i - MD Location of Care: Central Detention Facility Inmate is not cleared for fed transfer He is on restrict cell. Electronically Signed by EN - MD on 10/27/2020 at 4:21 AM Case 1:20-cv-00849-CKK Document 138-4 Filed 12/12/20 Page 1 of 40 APPENDI B Case 1:20-cv-00849-CKK Document 138-4 Filed 12/12/20 Page 2 of 40 App B, Ex 1 Guidance on ManagementoPSPoravray Ga Qe RAS OK op hagument 2 “4 Filed 12/12/20 Page 3 of 40 etention Facilities | CDC 12/10/20, 6:14 PM iy 1B # Centers for Disease Control and Prevention i CDC 24/7: Saving Lives, Protecting People™ Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities Updated Dec, 3, 2020 Print This interim guidance is based on what is currently known about the transmission and severity of coronavirus disease 2019 (COVID-19) as of the date of posting, October 7, 2020, The US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the CDC website periodically for updated interim guidance. This document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available, A revision was made 12/3/2020 to reflect the following: COVID-19 (Coronavirus Disease) A revision was made 10/21/2020 to reflect the following: e Updated language for the close contact definition. A revision was made 10/7/2020 to reflect the following: ¢ Updated criteria for releasing individuals with confirmed COVID-19 from medical isolation (symptom-based approach). Added link to CDC Guidance for Performing Broad-Based Testing for SARS-CoV-2 in Congregate Settings Reorganized information on Quarantine into 4 sections: Contact Tracing, Testing Close Contacts, Quarantine Practices, and Cohorted Quarantine for Multiple Close Contacts A revision was made 7/14/20 to reflect the following: https://www.cde,gov/coronavirus/2019-ncov/community/correction-detention/quidance-correctional-detention.html Page 1 of 38 Guidance on ManagemenaGRodat Os Be RO 8A 9 COKiK 9 Dome mRend AB Betbntibrikedite2/TBA20 Page 4 of 40 12/10/20, 6:14 PM ° Added testing and contact tracing considerations for incarcerated/detained persons (including testing newly incarcerated or detained persons at intake; testing close contacts of cases; repeated testing of persons in cohorts of quarantined close contacts; testing before release). Linked to more detailed Interim Considerations for SARS-CoV-2 Testing in Correctional and Detention Facilities. « Added recommendation to consider testing and a 14-day quarantine for individuals preparing for release or transfer to another facility. ° Added recommendation that confirmed COVID-19 cases may be medically isolated as a cohort. (Suspected cases should be isolated individually.) * Reduced recommended frequency of symptom screening for quarantined individuals to once per day (from twice per day). * Added recommendation to ensure that PPE donning/doffing stations are set up directly outside spaces requiring PPE. Train staff to move from areas of lower to higher risk of exposure if they must re-use PPE due to shortages. e Added recommendation to organize staff assignments so that the same staff are assigned to the same areas of the facility over time, to reduce the risk of transmission through staff movements. © Added recommendation to suspend work release programs, especially those within other congregate settings, when there is a COVID-19 case in the correctional or detention facility. © Added recommendation to modify work details so that they only include incarcerated/detained persons from a single housing unit. e Added considerations for safely transporting individuals with COVID-19 or their close contacts. » Added considerations for release and re-entry planning in the context of COVID-19. Intended Audience This document is intended to provide guiding principles for healthcare and non-healthcare administrators of correctional and detention facilities (including but not limited to federal and state prisons, local jails, and detention centers), law enforcement agencies that have custodial authority for detained populations (i.e,, U.S. Immigration and Customs Enforcement and U.S. Marshals Service), and their respective health departments, to assist in preparing for potential introduction, spread, and mitigation of SARS-CoV-2 (the virus that causes Coronavirus Disease 2019, or COVID-19) in their facilities. In general, the document uses terminology referring to correctional environments but can also be applied to civil and pre-trial detention settings. This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance. This guidance will not necessarily address every possible custodial setting and may not use legal terminology specific to individual agencies’ authorities or processes. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 2 of 38 Guidance on Management Sr AS GnaviroPoeVaRQSAIcGlsKa) POGHENAAladABAtioritenkidsa 2/20 Page 5 of 40 — 12/10/20, 6:14 PM The guidance may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions. Facilities should contact CDC or their state, local, territorial, and/or tribal public health department if they need assistance in applying these principles or addressing topics that are not specifically covered in this guidance. Guidance Overview The guidance below includes detailed recommendations on the following topics related to COVID-19 in correctional and detention settings: / Operational and communications preparations for COVID-19 / Enhanced cleaning/disinfecting and hygiene practices / Social distancing strategies to increase space between individuals in the facility J Strategies to limit transmission from visitors / Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages / Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors / Testing considerations for SARS-CoV-2 / Medical isolation of individuals with confirmed and suspected COVID-19 and quarantine of close contacts, including considerations for cohorting when individual spaces are limited / Healthcare evaluation for individuals with suspected COVID-19 / Clinical care for individuals with confirmed and suspected COVID-19 / Considerations for people who are at increased risk for severe iliness from COVID-19 Definitions of Commonly Used Terms Close contact of someone with COVID-19 - Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention. htm! Page 3 of 3: Guidance on ManagemenO94 GeropapQs Oix9O SHO OW K-9DOCUIMEMt 1Odentinileadida/Idy20 Page 6 of 40 12/10/20, 6:14 PM * Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 min utes), Data are limited, making it difficult to precisely define “close contact,” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact in vestigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended. Cohorting - In this guidance, cohorting refers to the practice of isolating multiple individuals with laboratory-confirmed COVID-19 together or quarantining close contacts of an infected person together as a group due to a limited number of individual cells. While cohorting those with confirmed COVID-19 is acceptable, cohorting individuals with suspected COVID-19 is not recommended due to high risk of transmission from infected to uninfected individuals. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting as a harm reduction strategy to minimize the risk of disease spread and adverse health outcomes. Community transmission of SARS-CoV-2 - Community transmission of SARS-CoV-2 occurs when individuals are exposed to the virus through contact with someone in their local commu nity, rather than through travel to an affected location, When community transmission is occurring in a particular area, correctional facilities and detention centers are more likely to start seeing infections inside their walls. Facilities should consult with local public health departments if assistance is needed to determine how to define “local community” in the context of SARS-CoV-2 spread. However, because all states have reported cases, all facilities should be vigilant for introduction of the virus into their populations. Confirmed vs. suspected COVID-19 - A person has confirmed COVID-19 when they have received a positive result from a COVID-19 viral test (antigen or PCR test) but they may or may not have symptoms. A person has suspected COVID-19 if they show symptoms of COVID-19 but either have not been tested via a viral test or are awaiting test results. If their test result is positive, suspected COVID-19 is reclassified as confirmed COVID-19. Incarcerated/detained persons - For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting. The term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e., detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facilities), facility administrators can adapt this guidance to apply to their specific circumstances as needed. ‘Masks ~ Masks cover the nose and mouth and are intended to help prevent people who have the virus from transmitting it to others, even if they do not have symptoms. CDC recommends wearing cloth masks in public settings where social distancing measures are difficult to maintain, Masks are recommended as a simple barrier to help prevent respiratory droplets from traveling into the air and onto other people when the person wearing the mask coughs, sneezes, talks, or raises their voice. This is called source control. If everyone wears a mask in congregate settings, the risk of exposure to SARS-CoV-2 can be reduced. Anyone who has trouble breathing or is unconscious, incapacitated, younger than 2 years of age or otherwise unable to remove the mask without assistance should not wear a mask (for more details see How to Wear Masks). CDC does not recommend use of masks for source control if they have an exhalation valve or https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.htm| Page 4 of 39 NSPS eMedia 9 Gat PEER HSBAER CRIO- Do darmanatala8odrentrhedilZl42/20 Page 7 of 40 12/10/20, 6:14 PM vent). Individuals working under conditions that require PPE should not use a cloth mask when a surgical mask or N95 respirator is indicated (see Table 1). Surgical masks and N95 respirators should be reserved for situations where the wearer needs PPE. Detailed recommendations for wearing a mask can be found here. pre-established criteria for release from isolation, in consultation with clinical providers and public health officials. In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion, and should ensure that the conditions in medical isolation spaces are distinct from those in punitive isolation, Quarantine ~ Quarantine refers to the Practice of separating individuals who have had close contact with someone with COVID-19 to determine whether they develop symptoms or test Positive for the disease. Quarantine reduces the risk of “routine intake quarantine,” in which individuals newly incarcerated/detained are housed separately or as a group for 14 days before being integrated into general housing. This type of quarantine is conducted to prevent introduction of SARS- CoV-2 from incoming individuals whose exposure status is unknown, rather than in response to a known exposure to someone infected with SARS-CoV-2.) * The best way to protect incarcerated/detained persons, staff, and visitors is to quarantine for 14 days. Check your local health department's website for information about options in your area to possibly shorten this quarantine Staff - In this document, “staff’ refers to all public or private-sector employees (e.g., contracted healthcare or food service workers) working within a correctional facility. Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff, including private facility operators, Symptoms - Symptoms of COVID-19 include cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, and new loss of taste or smell. This list is not exhaustive. Other less common symptoms have been reported, including nausea and vomiting. Like other respiratory infections, COVID-19 can vary in severity from mild to severe, and https://www.cde.gov/coronavirus/2019-ncov/com munity/correction-detention/guidance-correctional-detention.html Page 5 of 38 Guidance on Management (epEeaayir A PEPOOOAGTRA” TOEHTENELSEeN FASE 2722/20 Page 8 of 40 sy oiarm pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations at increased risk for severe illness are not yet fully understood. Monitor the CDC website for updates on symptoms. Facilities with Limited Onsite Healthcare Services Although many large facilities such as prisons and some jails employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care. The majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility's individual structure and resources. However, topics related to healthcare evaluation and clinical care of persons with confirmed and suspected COVID-19 infection and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they identify incarcerated/detained persons or staff with confirmed or suspected COVID-19, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. The guidance makes note of strategies tailored to facilities without onsite healthcare where possible. Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with persons with confirmed or suspected COVID-19 infection. COVID-19 Guidance for Correctional Facilities Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections should be applied simultaneously based on the progress of the outbreak in a particular facility and the surrounding community, « Operational Preparedness. This guidance is intended to help facilities prepare for potential SARS-CoV-2 transmission in the facility. Strategies focus on operational and communications planning, training, and personnel practices. * Prevention. This guidance is intended to help facilities prevent spread of SARS-CoV-2 within the facility and between the community and the facility. Strategies focus on reinforcing hygiene practices; intensifying cleaning and disinfection of the facility; regular symptom screening for new intakes, visitors, and staff; continued communication with incarcerated/detained persons and staff; social distancing measures; as well as testing symptomatic and asymptomatic individuals in correctional and detention facilities. Refer to the Interim Guidance on Testing for SARS- CoV-2 in Correctional and Detention Facilities for additional considerations regarding testing in correctional and detention settings. e Management. This guidance is intended to help facilities clinically manage persons with confirmed or suspected COVID-19 inside the facility and prevent further transmission of SARS-CoV-2. Strategies include medical isolation and care of incarcerated/detained persons with COVID-19 (including considerations for cohorting), quarantine and testing of close contacts, restricting movement in and out of the facility, infection control practices for interactions https://www.cdc.gav/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 6 of 38 Guidance on Management(GES@>nbi2G-O%rQOB4O COKK io MacuEnand ddSetntibilegidee(ta20 Page 9 of 40 12/10/20, 6:14 PM with persons with COVID-19 and their quarantined close contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas where infected persons spend time. Operational Preparedness Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and the importance of reporting those symptoms if they develop. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, training staff on proper use of personal protective equipment (PPE) that may be needed in the course of their duties, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life. Communication and Coordination Develop information-sharing systems with partners. « = Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before SARS-CoV-2 infections develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses. Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff. Where possible, put plans in place with other jurisdictions to prevent individuals with confirmed or suspected COVID-19 and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding. Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known. / Review existing influenza, all-hazards, and disaster plans, and revise for COVID-19. ~ Train staff on the facility's COVID-19 plan. All personnel should have a basic understanding of COVID-19, how the disease is thought to spread, what the symptoms of the disease are, and what measures are being implemented and can be taken by individuals to prevent or minimize the transmission of SARS-CoV-2. Ensure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or coharted), 2) isolate individuals with suspected COVID-19 (individually - do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 (ideally individually; cohorted if necessary), The plan should include contingencies for multiple locations if numerous infected individuals and/or close contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for more detailed cohorting considerations. Facilities without onsite healthcare capacity should make a plan for how they will ensure that individuals with https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 7 of 38 Guidance on Management Sceongvins RPASORDIY TERK” I SELATIENE LEBEN REY ED/I2720 Page 10 of 40/20, 674 Pa suspected COVID-19 will be isolated, evaluated, tested, and provided necessary medical care. = Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ~ Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the disease transmission patterns change. Coordinate with local law enforcement and court officials. « = Identify legally acceptable alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of SARS-CoV-2 “ Consider options to prevent overcrowding (e.g., diverting new intakes to other facilities with available capacity, and encouraging alternatives to incarceration and other decompression strategies where allowable). Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signs throughout the facility and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or have low-vision. 2 = For all: * Practice good cough and sneeze etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. * Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating; before and after preparing food; before taking medication; and after touching garbage. e Wear masks, unless PPE is indicated. * Avoid touching your eyes, nose, or mouth without cleaning your hands first. ® Avoid sharing eating utensils, dishes, and cups. * Avoid non-essential physical contact. ~ For incarcerated/detained persons: * the importance of reporting symptoms to staff « Social distancing and its importance for preventing COVID-19 * Purpose of quarantine and medical isolation ~ For staff. * Stay at home when sick * If symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting a healthcare provider as soon as possible to determine whether evaluation or testing is needed, and contacting a supervisor. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention, html Page § of 38 ; : 20 Page 11 of 40 Guidance on MeneaerREA SECA PVE YOBESA ME KKvin dO GLUDRAL LSS nile de tA I20. g 12/10/20, 6:14 PM Personnel Practices / Review the sick leave policies of each em ployer that operates within the facility. * = Review policies to ensure that they are flexible, Non-punitive, and actively encou rage staff not to report to work when sick, Determine which officials will have the authority to send symptomatic staff home. “ Identify duties that can be performed remotely. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of SARS-CoV-2 Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. * = Identify critical job functions and plan for alternative coverage, ~ Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ~ Review CDC guidance on Safety practices for critical infrastructure workers ( including correctional officers, law nforcement officers, and healthcare workers) who continue to work after a potential exposure to SARS-CoV-2, ~ Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages. * = Consult with occupational health Providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to SARS-CoV-2, ~ Make plans in advance for how to change staff duty assignments to prevent unnecessary movement between housing units during a COVID-19 * = Ifthere are people with COVID-19 inside the facility, itis essential for staff members to maintain a consistent duty assignment in the same area of the facility across shifts to prevent transmission across different facility areas. Tipslinneu.cde-govleoronavirus/2018-ncovicommunity/correction-detention/guidance-correctional-detenton hey Page 9 of 38 Guidance on Management GE@erbyAG-WrBOBMOACOMK 9) DOCUMMOMt HBB ifetiteS/09720 Page 12 of 40 — 12/10/20, 6:14 PM / Reference the Occupational Safety and Health Administration website [4% for recommendations regarding worker health. / Review CDC's guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer, or share with others. Operations, Supplies, and PPE Preparations / Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available and have a plan in place to restock as needed. e = Standard medical supplies for daily clinic needs ™ Tissues - Liquid or foam soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. Ensure a sufficient supply of soap for each individual. - Hand drying supplies, such as paper towels or hand dryers ~ Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ~ Cleaning supplies, including EPA-registered disinfectants effective against SARS-CoV-2 [4 , the virus that causes COVID-19 = Recommended PPE (surgical masks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when surgical masks are acceptable alternatives to N95s. Visit CDC's website for a calculator to help determine rate of PPE usage. - Cloth face masks for source control - SARS-CoV-2 specimen collection and testing supplies “ Make contingency plans for possible PPE shortages during the COVID-19 pandemic, particularly for non- healthcare workers. « = See CDC guidance optimizing PPE supplies. / Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting, where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty, and place dispensers at facility entrances/exits and in PPE donning/doffing stations. / Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) e = Provide liquid or foam soap where possible. If bar soap must be used, ensure that it does not irritate the skin https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/quidance-correctional-detention.html Page 10 of 38 Guidance on Managemeet Ser PO MsOB8H89 CKO -DOGINERARE Hrerhlled,; el d2l20 Page 13 of 40 12/10/20, 6:14 PM and thereby discourage frequent hand washing, and ensure that individuals do not share bars of soap, If not already in place, employers Operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit-tested for any respiratory protection they will need within the scope of their responsibilities. Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. * = See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with persons with COVID-19 or their close contacts, ~ Visit CDC's website for PPE conning and doffing training videos and job aids §@ [2.9 MB, 3 pages]. Prepare to set up designated PPE donning and doffing areas outside all Spaces where PPE will be used. These spaces should include: * = Adedicated trash can for disposal of used PPE ~ Ahand washing station or access to alcohol-based hand sanitizer - Aposter demonstrating correct PPE donning and doffing procedures Review CDC and EPA guidance for cleaning and disinfecting of the facility. Prevention Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of SARS-CoV-2 and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, Staff, and visitors (including increasing access to soap and Paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies, Because many individuals infected with SARS-CoV-2 do not display symptoms, the virus could be present in facilities before infections are identified, Good hygiene practices, vigilant symptom screening, wearing cloth face masks (if not contraindicated), and social dista ncing are critical in preventing further transmission. Testing symptomatic and asymptomatic individuals and initiating medical isolation for suspected and confirmed cases and quarantine for close contacts, can help prevent spread of SARS-CoV-2, Operations Stay in communication with Partners about your facility's current situation. * = State, local, territorial, and/or tribal health departments ~ Other correctional facilities htths://www.ede.gov/coronavirus/2019-ncov/eommunity/correction-detention/guidance-correctional-detention. nmi Page 11 of 38 Guidance on Manageme*LaS@rchad Oss GOR4 B-CHNO-1dDDio Curerserel Adenia Edilitisy¥10720 Page 14 of 40 12/10/20, 6:14 PM ./ Communicate with the public about any changes to facility operations, including visitation programs. / Limit transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding. * = Ifatransfer is absolutely necessary: ° Perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for suspected COVID-19 infection - including giving the individual a cloth face mask (unless contraindicated), if not already wearing one, immediately placing them under medical isolation, and evaluating them for SARS-CoV-2 ® Ensure that the receiving facility has capacity to properly quarantine or isolate the individual upon arrival. * See Transportation section below on precautions to use when transporting an individual with confirmed or suspected COVID-19, / Make every possible effort to modify staff assignments to minimize movement across housing units and other areas of the facility. For example, ensure that the same staff are assigned to the same housing unit across shifts to prevent cross-contamination from units where infected individuals have been identified to units with no infections. / Consider suspending work release and other programs that involve movement of incarcerated/detained individuals in and out of the facility, especially if the work release assignment is in another congregate setting, such as a food processing plant. “ Implement lawful alternatives to in-person court appearances where permissible. ./ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for possible COVID-19 symptoms, to remove possible barriers to symptom reporting. / Limit the number of operational entrances and exits to the facility. / Where feasible, consider establishing an on-site laundry option for staff so that they can change out of their uniforms, launder them at the facility, and wear street clothes and shoes home. If on-site laundry for staff is not feasible, encourage them to change clothes before they leave the work site, and provide a location for them to do so. This practice may help minimize the risk of transmitting SARS-CoV-2 between the facility and the community. Cleaning and Disinfecting Practices ~ Even if COVID-19 has not yet been identified inside the facility or in the surrounding community, implement intensified cleaning and disinfecting procedures according to the recommendations below. These measures can help prevent spread of SARS-CoV-2 if introduced, and if already present through asymptomatic infections. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 12 of 38 Guidance on Management OE Sseorby AD Bre GOBADKOKK 19) MUGHAL ABBeA missiles de/tel20 Page 15 of 40 12/10/20, 6:14 PM / Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. * = Visit the CDC website for a tool to help implement cleaning and disinfection. ~ Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas, Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, telephones, and computer equipment). Staff should clean shared equipment (e.g., radios, service weapons, keys, handcuffs) several times per day and when the use of the equipment has concluded, Use household cleaners and EPA-registered disinfectants effective against SARS-CoV-2, the virus that causes COVID-19 [4 as appropriate for the surface. Follow label instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wea ring gloves and making sure there is good ventilation during use, and around people. Clean according to label instructions to ensure safe and effective use, appropriate product dilution, and contact time. Facilities may consider lifting restrictions on undiluted disinfectants (i.e., requiring the use of undiluted product), if applicable. Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day. Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed. Hygiene Encourage all staff and incarcerated/detained persons to wear a cloth face mask as much as safely possible, to prevent transmission of SARS-CoV-2 through respiratory droplets that are created when a person talks, coughs, or sneezes (“source control”) “= Provide masks at no cost to incarcerated/detained individuals and launder them routinely, Clearly explain the purpose of masks and when their use may be contraindicated. Because many individuals with COVID-19 do not have symptoms, it is im portant for everyone to wear masks in order to protect each other: “My mask protects you, your mask protects me.” Ensure staff know that cloth masks should not be used as a substitute for surgical masks or N95 respirators that may be required based on an individual's scope of duties. Cloth masks are not PPE but are worn to protect others in the surrounding area from respiratory droplets generated by the wearer, Surgical masks may also be used as source control but should be conserved for situations requiring PPE, Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms). https:/www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 13 of 38 Guidance on Management @ASPnbviald HreORIAdoKKi 9) Lecuaent ah@Be4ntidn Hamtihe/ t2¢20 Page 16 of 40 12/10/20, 6:14 PM V/ Provide incarcerated/detained persons and staff no-cost access to: e = Soap - Provide liquid or foam soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing, and ensure that individuals are not sharing bars of soap. - Running water, and hand drying machines or disposable paper towels for hand washing - Tissues and (where possible) no-touch trash receptacles for disposal - Face masks Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene. .“ Communicate that sharing drugs and drug preparation equipment can spread SARS-CoV-2 due to potential contamination of shared items and close contact between individuals. Testing for SARS-CoV-2 Correctional and detention facilities are high-density congregate settings that present unique challenges to implementing testing for SARS-CoV-2, the virus that causes COVID-19, Refer to Testing guidance for details regarding testing strategies in correctional and detention settings. Prevention Practices for Incarcerated/Detained Persons / Provide cloth face masks (unless contraindicated) and perform pre-intake symptom screening and temperature checks for all new entrants in order to identify and immediately place individuals with symptoms under medical isolation. Screening should take place in an outdoor space prior to entry, in the sally port, or at the point of entry into the facility immediately upon entry, before beginning the intake process. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). # ~ fan individual has symptoms of COVID-73: ® Require the individual to wear a mask (as much as possible, use cloth masks in order to reserve surgical masks for situations requiring PPE). Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask. * Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE. * Place the individual under medical isolation and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.) « Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care. See Transport section and coordinate with the receiving facility. ~ If an individual is an asymptomatic close contact of someone with COVID-19: ® Quarantine the individual and monitor for symptoms at least once per day for 14 days. (See https://www.cdce.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention,html Page 14 of 38 Guidance on Manageme@ aS dikOrOMsOOEAM bo PACHA ARPA ended hel42/20 Page 17 of 40 12/10/20, 6:14 PM Quarantine section below.) The best way to protect incarcerated/detained persons, staff, and visitors is to quarantine for 14 days. Check your local health department's website for information about options in your area to possibly shorten this quarantine period, * Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care. See Transport section and coordinate with the receiving facility, Consider strategies for testing asymptomatic incarcerated/detained persons without known SARS-CoV-2 exposure for early identification of SARS-CoV-2 in the facility. Implement social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of symptoms), and to minimize mixing of individuals from different housing units. Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff, Not all strategies will be feasible in all facilities, Example strategies with varying levels of intensity include: * = Common areas: ° Enforce increased space between individuals in holding cells as well as in lines and waiting areas such as intake (@.g., remove every other chair ina waiting area). ~ Recreation: * Choose recreation spaces where individuals can spread out * Stagger time in recreation spaces (clean and disinfect between groups). * Restrict recreation space usage to a single housing unit per space (where feasible), - Meals: ® Stagger meals in the dining hall (one housing unit at a time; clean and disinfect between groups). * Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table). * Provide meals inside housing units or cells. ~ Group activities: * Limit the size of group activities. * Increase space between individuals during group activities. * Suspend group programs where participants are likely to be in closer contact than they are in their housing environment. * Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out. - Housing: * If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.) * Arrange bunks so that individuals sleep head to foot to increase the distance between their faces. * Minimize the number of individuals housed in the same room as much as possible. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 15 of 38 Guidance on Management FQgendiAOogveGBCS4 Ie GioK) Docume@anbAGsehtiotthedidsakh2/20 Page 18 of 40 12/10/20, 6:14 pw » Rearrange scheduled movements to minimize mixing of individuals from different housing areas. - Work details: * Modify work detail assignments so that each detail includes only individuals from a single housing unit. - Medical: * |f possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering individuals’ sick call visits. ® Stagger pill line, or stage pill line within individual housing units. * Identify opportunities to implement telemedicine to minimize the movement of healthcare staff across multiple housing units and to minimize the movement of ill individuals through the facility. « Designate a room near the intake area to evaluate new entrants who are flagged by the intake symptom screening process before they move to other parts of the facility. Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons. ~ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis. As much as possible, provide this information in person and allow opportunities for incarcerated/detained individuals to ask questions (e.g., town hall format if social distancing is feasible, or informal peer-to-peer education). Updates should address: « = Symptoms of COVID-19 and its health risks ~ Reminders to report COVID-19 symptoms to staff at the first sign of illness » Address concerns related to reporting symptoms (e.g., being sent to medical isolation), explain the need to report symptoms immediately to protect everyone, and explain the differences between medical isolation and solitary confinement. - Reminders to use masks as much as possible ~ Changes to the daily routine and how they can contribute to risk reduction Prevention Practices for Staff / When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with COV!ID-19 symptoms while interviewing, escorting, or interacting in other ways, and to wear recommended PPE if closer contact is necessary. / Ask staff to keep interactions with individuals with COVID-19 symptoms as brief as possible. Remind staff to stay at home if they are sick.Ensure staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty. Consider strategies for testing asymptomatic staff without known SARS-CoV-2 exposure for early identification of SARS-CoV-2 in the facility, https://www.edc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 16 of 38 a mee AS 1 FO CU OOAY-C RIC Db CemrrRsnetBBoM enfeilectihias1 2620 Page 19 of 40 yir0/20, 6:14 PM * — __ Follow guidance from the Equal Employment Opportu nity Commission [7 when offering testing to staff. Any time a positive test result is identified, relevant employers should: ° Ensure that the individual is rapidly notified, connected to appropriate medical care, and advised how to selisolate. * Inform other staff about their possible exposure in the workplace but should maintain the infected employee's confidentiality as required by the Americans with Disabilities Act . Perform verbal screening and temperature checks for all Staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks, * = In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone), “ Send staff home who do not clear the screening process, and advise them to follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: * = symptoms of COVID-19 and its health risks ~ Employers’ sick leave policy H If staff develop a fever or other symptoms of COVID-19 while at work, they should immediately put on a mask (if not already wearing one), inform their supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. V Staff identified as close contacts of someone with COVID-19 should self-quarantine at home for 14 days, unless a shortage of critical staff precludes quarantine. * — Staffidentified as close contacts should self-monitor for symptoms and seek testing, Refer to CDC guidelines for further recommendations regarding home quarantine. * The best way to protect inca rcerated/detained persons, staff, and visitors is to quarantine for 14 days. Check your local health department's website for information about options in your area to possibly shorten this quarantine period. ° = To ensure continuity of operations, critical infrastructure workers (including corrections officers, law enforcement officers, and healthcare staff) may be permitted to continue work following potential exposure to SARS-CoV-2 . provided that they remain asymptomatic and additional precautions are implemented to protect them and others. * Screening: The facility should ensure that temperature and symptom screening takes place daily before the staff member enters the facility. * Regular Monitoring: The staff member should self-monitor under the supervision of their employer's occupational health program. If symptoms develop, they should follow CDC guidance on isolation with COVID-19 symptoms. * Wear a Mask: The staff member should wear a mask (unless contraindicated) at all times while in the workplace for 14 days after the last exposure (if not already wearing one due to universal use of masks). https://www.cde.gov/coronavi ru 8/2019-ncov/community/correction-detention/guida n¢e-correctional-detention.html Page 17 of 38 Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities | CuL ep (Up awry race pane Case 1:20-cv-00849-CKK Document 138-4 Filed 12/12/20 Page 20 of 40 * Social Distance: The staff member should maintain 6 feet between themselves and others and practice social distancing as work duties permit. * Disinfect and Clean Workspaces: The facility should continue enhanced cleaning and disinfecting practices in all areas including offices, bathrooms, common areas, and shared equipment. . Staff with confirmed or suspected COVID-19 should inform workplace and personal contacts immediately. These staff should be required to meet CDC criteria for ending home iselation before returning to work. Monitor CBC guidance on discontinuing home isolation regularly, as circumstances evolve rapidly. Prevention Practices for Visitors / Restrict non-essential vendors, volunteers, and tours from entering the facility. / \f possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility. / Require visitors to wear masks (unless contraindicated), and perform verbal screening and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. » = Staff performing temperature checks should wear recommended PPE. - Exclude visitors and volunteers who do not clear the screening process or who decline screening. / Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas. / Provide visitors and volunteers with information to prepare them for screening. » = Instruct visitors to postpone their visit if they have COVID-19 symptoms, - If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. = Display signage outside visiting areas explaining the COVID-19 symptom screening and temperature check process, Ensure that materials are understandable for non-English speakers and those with low literacy, Promote non-contact visits: * = Encourage incarcerated/detained persons to limit in-person visits in the interest of their own health and the health of their visitors. = Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. = Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 18 of 38 Guidance on Managemen(oASiodawtrOs BNeOSdh9 1 GAGiK-1o OG HEIRAL; LS onibl ide Ae20 Page 21 of 40 12/10/20, 6:14 PM Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. e - If moving to virtual visitation, clean electronic surfaces regularly after each use. (See Clea ning guidance below for instructions on cleaning electronic surfaces.) - Inform potential visitors of changes to, or suspension of, visitation programs. ~ Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ~ If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult. NOTE: Suspending visitation should only be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. Visitation is important to maintain mental health. If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. Management If there is an individual with suspected COVID-19 inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing individuals with suspected or confirmed COVID-19 under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE. Testing symptomatic and asymptomatic individuals (incarcerated or detained individuals and staff) and initiating medical isolation for suspected and confirmed cases and quarantine for close contacts, can help prevent spread of SARS-CoV-2 in correctional and detention facilities. Continue following recommendations outlined in the Preparedness and Prevention sections above. Operations Coordinate with state, local, tribal, and/or territorial health departments. When an individual has suspected or confirmed COVID-19, notify public health authorities and request any necessary assistance with medical isolation, evaluation, and clinical care, and contact tracing and quarantine of close contacts. See Medical isolation, Quarantine and Clinical Care sections below. ~ Implement alternate work arrangements deemed feasible in the Operational Preparedness section. Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release), unless necessary for medical evaluation, medical isolation/quarantine, health care, extenuating security concerns, release, or to prevent overcrowding. Set up PPE donning/doffing stations as described in the Preparation section. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 19 of 38 Guidance on Managemenbos Coronavigs Digcery @aig (COV I2-19mGamaqtiqnpl 4Biefentibiileae ii B/Acne O Page 22 of 40 12/10/20, 6:14 PM If possible, consider quarantining all new intakes for 14 days before they enter the facility's general population (separately from other individuals who are quarantined due to contact with someone who has COVID-19). This practice is referred to as routine intake quarantine. “ Consider testing all newly incarcerated/detained persons before they join the rest of the population in the correctional or detention facility. Minimize interactions between incarcerated/detained persons living in different housing units, to prevent transmission from one unit to another. For example, stagger mealtimes and recreation times, and consider implementing broad movement restrictions. Ensure that work details include only incarcerated/detained persons from a single housing unit, supervised by staff who are normally assigned to the same housing unit. * = Ifa work detail provides goods or services for other housing units (e.g., food service or laundry), ensure that deliveries are made with extreme caution. For example, have a staff member from the work detail deliver prepared food to a set location, leave, and have a staff member from the delivery location pick it up. Clean and disinfect all coolers, carts, and other objects involved in the delivery. / Incorporate COVID-19 prevention practices into release planning. * = Consider implementing a release quarantine (ideally in single cells) for 14 days prior to individuals’ projected release date. * The best way to protect incarcerated/detained persons, staff, and visitors is to quarantine for 14 days. Check your local health department's website for information about options in your area to possibly shorten this quarantine period. ~ Screen all releasing individuals for COVID-19 symptoms and perform a temperature check (see Screening section below.) * Ifan individual does not clear the screening process, follow the protocol for suspected COVID-19 - including giving the individual a mask, if not already wearing one, immediately placing them under medical isolation, and evaluating them for SARS-CoV-2 testing, * If the individual is released from the facility before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care. * Before releasing an incarcerated/detained individual who has confirmed or suspected COVID-19, or who is a close contact of someone with COVID-19, contact local public health officials to ensure they are aware of the individual's release and anticipated location. If the individual will be released to a community-based facility, such as a homeless shelter, contact the facility's staff to ensure adequate time for them to prepare to continue medical isolation or quarantine as needed. Incorporate COVID-19 prevention practices into re-entry programming. ° = Ensure that facility re-entry programs include information on accessing housing, social services, mental health services, and medical care within the context of social distancing restrictions and limited community business https://www,cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 20 of 38 Guidance on Management @iq@@nhvia msOMP doh 19) AQGLOEh Ae Battnridn HS ke e120 Page 23 of 40 12/10/20, 6:14 PM operations related to COVID-19, * Provide individuals about to be released with COVID-19 prevention information, hand hygiene supplies, and masks. Link individuals who need medication-assisted treatment for opioid use disorder to substance use, harm reduction, and/or recovery support systems [4 . If the surrounding community is under movement restrictions due to COVID-19, ensure that referrals direct releasing individuals to programs that are continuing operations. * Link releasing individuals to Medicaid enrollment and healthcare resources [4 , including continuity of care for chronic conditions that may place an individual at increased risk for severe illness from COVID-19, * When possible, encourage releasing individuals to seek housing options among their family or friends in the community, to prevent crowding in other congregate settings such as homeless shelters. When linking individuals to shared housing, link preferentially to accommodations with the greatest Capacity for social distancing, Hygiene Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility (see above), Continue to emphasize practicing good hand hygiene and cough etiquette (see above). Cleaning and Disinfecting Practices / Continue adhering to recommended cleaning and disinfection procedures for the facility at large (see above).,_ / Reference specific cleaning and disinfection procedures for areas where individuals with COVID-19 spend time (see below). Management of Incarcerated/Detained Persons with COVID-19 Symptoms NOTE: Some recommendations below apply primarily to facilities with onsite healthcare Capacity. Facilities without onsite healthcare Capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that individuals with suspected COVID-19 will be effectively isolated, evaluated, tested (if indicated), and given care. Staff interacting with incarcerated/detained individuals with COVID-19 symptoms should wear recommended PPE (see Table 1), If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having symptomatic individuals walk through the facility to be evaluated in the medical unit. hitps://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention,html Page 210f 38 Guidance on Management GSS PonevIhUe Ursea sos E Coes 9) A OGIMAKEHaE me BaGntidn HEAibe/ bed 20 Page 24 of 40 12/10/20, 6:14 PM / Incarcerated/detained individuals with COVID-19 symptoms should wear a mask (if not already wearing one, and unless contraindicated) and should be placed under medical isolation immediately. See Medical isolation section below. / Medical staff should evaluate symptomatic individuals to determine whether SARS-CoV-2 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See infection Control and Clinical Care sections below as well. Incarcerated/detained persons with symptoms are included in the high-priority group for testing in CDC's recommendations due to the high risk of transmission within congregate settings. e = Ifthe individual's SARS-CoV-2 test is positive, continue medical isolation. (See Medical Isoiation section below.) ~ If the SARS-CoV-2 test is negative, the individual can be returned to their prior housing assignment unless they require further medical assessment or care or if they need to be quarantined as a close contact of someone with COVID-19. / Work with public health or private labs, as available, to access testing supplies or services, Medical Isolation of Individuals with Confirmed or Suspected COVID- 19 NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that individuals with confirmed or suspected COVID-19 will be appropriately isolated, evaluated, tested, and given care. “ As soon as an individual develops symptoms of COVID-19 or tests positive for SARS-CoV-2 they should be given a mask (if not already wearing one and if it can be worn safely), immediately placed under medical isolation in a separate environment from other individuals, and medicaliy evaluated. .“ Ensure that medical isolation for COVID-19 is distinct from punitive solitary confinement of incarcerated/detained individuals, both in name and in practice. Because of limited individual housing spaces within many correctional and detention facilities, infected individuals are often placed in the same housing spaces that are used for solitary confinement. To avoid being placed in these conditions, incarcerated/detained individuals may be hesitant to report COVID-19 symptoms, leading to continued transmission within shared housing spaces and, potentially, lack of health care and adverse health outcomes for infected individuals who delay reporting symptoms. Ensure that medical isolation is operationally distinct from solitary confinement, even if the same housing spaces are used for both. For example: e Ensure that individuals under medical isolation receive regular visits from medical staff and have access to mental health services. » Make efforts to provide similar access to radio, TV, reading materials, personal property, and commissary as would be available in individuals’ regular housing units. * Consider allowing increased telephone privileges without a cost barrier to maintain mental health and connection with others while isolated, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 22 of 38 i 5 of 40 Guidance on Manageme ASeo On POvE TOBE AA C36 Ko-DYALIMENKA RE Hie ill 42/12/20 Page 2 12/10/20, 6:14 PM * Communicate regularly with isolated individuals about the duration and purpose of their medical isolation period. Keep the individual's movement outside the medical isolation space to an absolute minimum. * = Provide medical care to isolated individuals inside the medical isolation space, unless they need to be transferred to a healthcare facility. See Infection Control and Clinical Care sections for additional details. ~ Serve meals inside the medical isolation space. ~ Exclude the individual from all group activities. ~ Assign the isolated individ ual(s) a dedicated bathroom when possible. When a dedicated bathroom is not feasible, do not reduce access to restrooms or showers as a result. Clean and disinfect areas used by infected individuals frequently on an ongoing basis during medical isolation. Ensure that the individual is wearing a mask if they must leave the medical isolation space for any reason, and whenever another individual enters. Provide clean masks as needed. Masks should be washed routinely and changed when visibly soiled or wet, If the facility is housing individuals with confirmed COVID-19 as a cohort: * = Only individuals with laboratory-confirmed COVID-19 should be placed under medical isolation as a cohort. Do not cohort those with confirmed COVID-19 with those with suspected COVID-19, with close contacts of individuals with confirmed or suspected COVID-1 9, Or with those with undiagnosed respiratory infection who do not meet the criteria for suspected COVID-19. ~ Ensure that cohorted grou Ps of people with confirmed COVID-19 wear masks whenever anyone else (including staff) enters the isolation Space. (Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask.) ~ When choosing a space to cohort groups of people with confirmed COVID-19, use a well-ventilated room with solid walls and a solid door that closes fully. Use one large space for cohorted medical isolation rather than several smaller spaces. This practice will conserve PPE and reduce the chance of cross-contamination across different parts of the facility. If possible, avoid transferring infected individual(s) to another facility unless necessary for medical care. If transfer is necessa ry, see Transport section for safe tra nsport guidance. V Staff assignments to isolation spaces should remain as consistent as possible, and these staff should limit their movements to other Parts of the facility as much as Possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility. ° ~ Ifstaff must serve multiple areas of the facility, ensure that they change PPE when leaving the isolation space. If a shortage of PPE supplies necessitates reuse, ensure that staff move only from areas of low to high exposure risk while wearing the same PPE, to prevent cross-contamination, For example, start in a housing unit where no one is known to be infected, then move to a Space used as quarantine for close contacts, and end in an isolation unit. Ensure that staff are highly trained in infection control practices, including use of recommended PPE. nips://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 23 of 38 Guidance on Management CASerdhi BOTGEBOSUNOKKS) DEwtartinsele ESB Lee'ioPFRStHEIPPS/20 Page 26 of 40 12/10/20, 6:14PM ./ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: * = Cover their mouth and nose with a tissue when they cough or sneeze ~ Dispose of used tissues immediately in the lined trash receptacle - Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked. “ Maintain medical isolation at least until CDC criteria for discontinuing home-based isolation have been met. These criteria have changed since CDC corrections guidance was originally issued and may continue to change as new data become available. Monitor the sites linked below regularly for updates. This content will not be outlined explicitly in this document due to the rapid pace of change. » = CDC's recommended strategy for release from home-based isolation can be found in the Discontinuation of isolation for Persons with COVID-19 Not in Healthcare Settings Interim Guidance. ~ Detailed information about the data informing the symptom-based strategy, and considerations for extended isolation periods for persons in congregate settings including corrections, can be found here. - |f persons will require ongoing care by medical providers, discontinuation of transmission-based precautions (PPE) should be based on similar criteria found here. Cleaning Spaces where Individuals with COVID-19 Spend Time / Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.) / Thoroughly and frequently clean and disinfect all areas where individuals with confirmed or suspected COVID-19 spend time. » = After an individual has been medically isolated for COVID-19, close off areas that they have used prior to isolation. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental infection Control in Health-Care Facilities for wait time based on different ventilation conditions) before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets. ~ Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section). ~ Clean and disinfect areas used by infected individuals on an ongoing basis during medical isolation. .“ Hard (non-porous) surface cleaning and disinfection » = (fsurfaces are soiled, they should be cleaned using a detergent or soap and water prior to disinfection, ~ Consult the list of products that are EPA-approved for use against the virus that causes COVID-19 (4 . Follow the manufacturer's instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.). https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.htm| Page 24 of 38 Guidance on Management-of CeLonaWies CipeERE SMG (CHCIN- PDocuarent! LAA ential di4:2/ 1420 Page 27 of 40 12/10/20, 6:14 PM lf EPA-approved disinfectants are not available, diluted household bleach solutions can be used if appropriate for the surface. Unexpired household bleach will be effective against coronaviruses when properly diluted. * Use bleach containing 5.25%-8.25% sodium hypochlorite, Do not use a bleach product if the percentage is not in this range or is not specified. * Follow the manufacturer's application instructions for the surface, ensuring a contact time of at least 1 minute. * Ensure proper ventilation during and after application, * Check to ensure the product is not past its expiration date, * Never mix household bleach with ammonia or any other cleanser. This can cause fumes that may be very dangerous to breathe in. ~ Prepare a bleach solution by mixing: * 5 tablespoons (1/3' cup) of 5.25%-8.25% bleach per gallon of room temperature water OR * 4 teaspoons of 5.25%-8.25% bleach per quart of room temperature water ~ Bleach solutions will be effective for disinfection up to 24 hours, ~ Alcohol solutions with at least 70% alcohol may also be used. Soft (porous) surface cleaning and disinfection * = For soft (porous) surfaces such as ca rpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces, After cleaning: * Ifthe items can be laundered, launder items in accordance with the manufacturer's instructions using the warmest appropriate water setting for the items and then dry items completely. * Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 [4 and are suitable for porous surfaces, v Electronics cleaning and disinfection * = For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present. * Follow the manufacturer's instructions for all cleaning and disinfection products. * Consider use of wipeable covers for electronics. ° Ifno manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids. Additional information on cleaning and disinfection of communal facilities such can be found on CDC's website, Food service items. Individuals under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed following food safety requirements. Individuals handling used food service items should clean their hands immediately after removing gloves. V Laundry from individuals with COVID-19 can be washed with other’s laundry. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidanc e-correctional-detention.html Page 25 of 38 Guidance on Management Sr ASEnavieODG¥sQOSK PeGibKe) DACUMBAELBEhtioriketi&ath2/20 Page 28 of 40 12/10/20, 6:14 PM 8 Individuals handling laundry from those with COVID-19 should wear a mask, disposable gloves, and a gown, discard after each use, and clean their hands immediately after. - Donot shake dirty laundry. This will minimize the possibility of dispersing virus through the air. Ensure that individuals performing cleaning wear recommended PPE (see PPE section below). ~ Launder items as appropriate in accordance with the manufacturer's instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. — Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. Transporting Individuals with Confirmed and Suspected COVID-19 and Quarantined Close Contacts / Refer to CDC guidance for Emergency Medical Services (EMS) on safely transporting individuals with confirmed or suspected COVID-19, This guidance includes considerations for vehicle type, air circulation, communication with the receiving facility, and cleaning the vehicle after transport. e = |fthe transport vehicle is not equipped with the features described in the EMS guidance, at minimum drive with the windows down and ensure that the fan is set to high, in non-recirculating mode. If the vehicle has a ceiling hatch, keep it open. _/ Use the same precautions when transporting individuals under quarantine as close contacts of someone with COVID-19. / See Table 1 for the recommended PPE for staff transporting someone with COVID-19. Managing Close Contacts of Individuals with COVID-19 NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space to implement effective quarantine should coordinate with local public health officials to ensure that close contacts of individuals with COVID-19 will be effectively quarantined and medically monitored Contact Tracing “ To determine who is considered a close contact of an individual with COVID-19, see definition of close contact and the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan @ [12 Kb, 1 page] for more information. / Contact tracing can be a useful tool to help contain disease outbreaks. When deciding whether to perform contact tracing, consider the following: * = Havea plan in place for how close contacts of individuals with COVID-19 will be managed, including quarantine logistics. Contact tracing can be especially impactful when: https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 26 of 38 Guidance on Managemen(ZaGeoflaaOs OseGO Bdh9 4 CHKIK- 19] WOGUMAA RIAL InaGrefentibllaGide/ee{2O Page 29 of 40 12/10/20, 6:14 PM * There is a small number of infected individuals in the facility or in a particular housing unit, Aggressively tracing close contacts can help curb transmission before many other individuals are exposed, * The infected individual is a staff member or an incarcerated/detained individual who has had close contact with individuals from other housing units or with other staff. Identifying those close contacts can help prevent spread to other parts of the facility, ® The infected individual is a staff member or an incarcerated/detained individual who has recently visited a community setting, In this situation, identifying close contacts can help reduce transmission from the facility into the community. = Contact tracing may be more feasible and effective in settings where incarcerated/detained individuals have limited contact with others (e.g., celled housing units), compared to settings where close contact is frequent and relatively uncontrolled (e.g., open dormitory housing units), ~ If there is a large number of individuals with COVID-19 in the facility, contact tracing may become difficult to manage. Under such conditions, consider broad-based testing in order to identify infections and prevent further transmission. = Consult CDC recommendations for Performing Broad-Based Testing for SARS-CoV-2 in Congregate Settings for further information regarding selecting a testing location, ensuring proper ventilation and PPE usage, setting up testing stations and supplies, and planning test-day operations. Testing Close Contacts Testing is recommended for all close contacts '§{12 KB, 1 page] of persons with SARS-CoV-2 infection, regardless of whether the close contacts have symptoms. * ~ Medically isolate those who test positive to prevent further transmission (see Medical Isolation section above). ~ Asymptomatic close contacts testing negative should be placed under quarantine precautions for 14 days from their last exposure, Quarantine for Close Contacts (who test negative) Incarcerated/detained persons who are close contacts of someone with confirmed or suspected COVID- 19 (whether the infected individual is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days. (Refer to the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan [12 KB, 1 page] for more information): * = Ifa quarantined individual is tested again during quarantine and they remain negative, they should continue to quarantine for the full 14 days after last exposure and follow all recommendations of local public health authorities. If an individual is quarantined due to contact with someone with suspected COVID-19 who is subsequently tested and receives a negative result, they can be released from quarantine. See Interim Guidance on Testing for SARS-CoV-2 in Correctional and Detention Facilities for more information about testing strategies in correctional and detention settings. * The best way to protect incarcerated/detained persons, staff, and visitors is to quarantine for 14 days, Check your local health department's website for information about options in your area to possibly shorten this quarantine period. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.htm| Page 27 of 38 Guidance on ManagementCE@nbyAG BseQOBAD.LOMK 19) DOeunMient hBSs4ntidr fedtzo/tO¢20 Page 30 0f 40 = 12/10/20, 6:14 pm Quarantined individuals should be monitored for COVID-19 symptoms at least once per day including temperature checks. e = See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of someone with COVID-19. ~ If. an individual develops symptoms for SARS-CoV-2, they should be considered a suspected COVID-19 case, given a mask (if not already wearing one), and moved to medical isolation immediately (individually, and separately from those with confirmed COVID-19 and others with suspected COVID-19) and further evaluated. (See Medical Isciation section above.) If the individual is tested and receives a positive result, they can then be cohorted with other individuals with confirmed COVID-19. Quarantined individuals can be released from quarantine restrictions if they have not developed COVID- 19 symptoms and have not tested positive for SARS-CoV-2 for 14 days since their last exposure to someone who tested positive. Keep a quarantined individual's movement outside the quarantine space to an absolute minimum. » = Provide medical evaluation and care inside or near the quarantine space when possible. ~ Serve meals inside the quarantine space. - Exclude the quarantined individual from all group activities. - Assign the quarantined individual a dedicated bathroom when possible. When providing a dedicated bathroom is not feasible, do not reduce access to restrooms or showers as a result. “ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns. If a quarantined individual leaves the quarantine space for any reason, they should wear a mask (unless contraindicated) as source control, if not already wearing one. e = Quarantined individuals housed as a cohort should wear masks at all times (see cohorted quarantine section below), = Quarantined individuals housed alone should wear a mask whenever another individual enters the quarantine space. ~ Anyone who has trouble breathing, or is unconscious, incapacitated or otherwise unable to remove the mask without assistance should not wear a mask. “ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands immediately after removing gloves. Laundry from quarantined individuals can be washed with others’ laundry. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.htm! Page 28 of 38 Guidance on Managementof Gerona Ses OPSOO SMS -ONK-1IDocumesnti LaAentileditia/dgi20 Page 31 of 40 igve/a0, Baa bu ® Individuals handling laundry from quarantined persons should wear a mask, disposable gloves, and a gown, discard after each use, and clean their hands immediately after. Do not shake dirty laundry, This will minimize the possibility of dispersing virus through the air. Launder items as appropriate in accordance with the manufacturer's instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items com pletely. - Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. ~ Staff assignments to quarantine spaces should remain as consistent as possible, and these staff should limit their movements to other parts of the facility. These staff should wear recommended PPE based On their level of contact with the individuals under quarantine (see PPE section below), ° = If staff must serve multiple areas of the facility, ensure that they change PPE when leaving the quarantine space, If a shortage of PPE supplies necessitates reuse, ensure that staff move only from areas of low to high exposure risk while wearing the same PPE, to prevent cross-contamination. Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to Someone with COVID-19) do not need to wear PPE but should still wear a mask as source control. Cohorted Quarantine for M. ultiple Close Contacts (who test negative) Facilities should make every possible effort to individually quarantine close contacts of individuals with confirmed or suspected COVID-19. Cohorting multiple quarantined close contacts could transmit SARS-CoV-2 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. V In order of preference, multiple quarantined individuals should be housed: * = IDEAL: Separately, in single cells with solid walls (i-e., not bars) and solid doors that close fully ~ Separately, in single cells with solid walls but without solid doors ~ Asa cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ~ Asacohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occu pied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ~ Asa cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ~ Asa cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed - referred to as “quarantine in place”). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. httpsi://www.cde.gov/coranavirus/2019-ncov/community/correction-detention/guidance-correctional-detention htm! Page 29 of 38 Guidance on Management @AG@nd ROMG@POBPOCOMK!®) DEecenienrt= 1s FRSA 20 Page 32 of 40 17/10/20, one Pu Safely transfer to another facility with capacity to quarantine in one of the above arrangements. (See Transport) (NOTE - Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.) lf the ideal choice does not exist in a facility, use the next best alternative as a harm reduction approach. ” If cohorting close contacts is absolutely necessary, be especially mindful of those who are at increased risk for severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure for the individuals with increased risk of severe illness. (For example, intensify social distancing strategies for individuals with increased risk.) / If single cells for isolation (of those with suspected COVID-19) and quarantine (of close contacts) are limited, prioritize them in rank order as follows to reduce the risk of further SARS-CoV-2 transmission and adverse health outcomes: e = Individuals with suspected COVID-19 who are at increased risk for severe illness from COVID-19 - Others with suspected COVID-19 - Quarantined close contacts of someone with COVID-19 who are themselves at increased risk for severe illness from COVID-19 / Ifa facility must cohort quarantined close contacts, all cohorted individuals should be monitored closely for symptoms of COVID-19, and those with symptoms should be placed under medical isolation immediately. “ If an individual who is part of a quarantined cohort becomes symptomatic: e = Ifthe individual is tested for SARS-CoV-2 and receives a positive result: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ~ Ifthe individual is tested for SARS-CoV-2 and receives a negative result: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. This individual can return from medical isolation to the quarantine cohort for the remainder of the quarantine period as their symptoms and diagnosis allow. - If the individual is not tested for SARS-CoV-2: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. / Consider re-testing all individuals in a quarantine cohort every 3-7 days, and immediately place those who test positive under medical isolation. This strategy can help identify and isolate infected individuals early and minimize continued transmission within the cohort. JY Consider testing all individuals quarantined as close contacts of someone with suspected or confirmed COVID-19 at the end of the 14-day quarantine period, before releasing them from quarantine precautions. “ Do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started. Doing so would complicate the calculation of the cohort's quarantine period, and potentially introduce new sources of infection. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 30 of 38 Guidance on Managemen aGeoren2Os Be RO BAB CAG 19 AOCMEIAL dnd Beeniblledidaldei20 Page 33 of 40 12/10/20, 6:14 PM Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility's general population as a general rule (not because they were exposed to someone with COVID-19), Under this scenario, do not mix individuals undergoing routine intake quarantine with those who are quarantined due to COVID-19 exposure. Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms Vv Provide clear information to incarcerated/detained persons about the presence of COVID-19 within the facility, and the need to increase social distancing and maintain hygiene precautions. * = As much as possible, provide this information in person and allow opportunities for incarcerated/detained individuals to ask questions (e.g., town hall format if social distancing is feasible, or informal peer-to-peer education). ~ Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf or hard-of-hearing, blind, or have low-vision. Vv If individuals with COVID-19 have been identified among staff or incarcerated/detained persons anywhere in a facility, consider implementing regular symptom screening and temperature checks in housing units that have not yet identified infections, until no additional infections have been identified in the facility for 14 days. Because some incarcerated/detained persons are hesitant to report symptoms, it is very important to monitor for symptoms closely even though doing so is resource intensive. See screening section for a procedure to safely perform a temperature check. Consider additional options to intensify social distancing within the facility. Management Strategies for Staff Provide clear information to staff about the presence of COVID-19 within the facility, and the need to enforce universal use of masks (unless contraindicated) and social distancing and to encourage hygiene precautions. * = As muchas possible, provide this information in person (if social distancing is feasible) and allow opportunities for staff to ask questions. Staff identified as close contacts of someone with COVID-19 should be tested for SARS-CoV-2 and self- quarantine at home for 14 days, unless a shortage of critical staff precludes quarantine of those who are asymptomatic (see considerations for critical infrastructure workers). Refer to the Interim Guidance on Developing a COVID-19 Case Investigation and Contact Tracing Plan [8 {12 KB, 1 page] for more information about contact tracing. * The best way to protect incarcerated/detained persons, staff, and visitors is to quarantine for 14 days. Check your local health department's website for information about options in your area to possibly shorten this quarantine period. https://www.cde.gov/coronavi rus/2019-ncov/com munity/correction-detention/guida Ncee-correctional-detention.htm| Page 31 of 38 Guidance on Management GASEAIAOGROGSHICOMS) DOC arterliankBtentionipaittiged PS/20 Page 34 of 40 12/10/20, 6:14 Pm e Close contacts should self-monitor for symptoms and seek testing. - Refer to CDC guidelines for further recommendations regarding home quarantine. / Staff who have confirmed or suspected COVID-19 should meet CDC criteria for ending home isolation before returning to work. Monitor CDC guidance on discontinuing home isolation regularly, as circumstances evolve rapidly. Infection Control Infection control guidance below is applicable to all types of correctional and detention facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/detained persons may have with someone with confirmed or suspected COVID-19. / All individuals who have the potential for direct or indirect exposure to someone with COVID-19 or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19} in Healthcare Settings. Monitor these guidelines regularly for updates. » = Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs. ~ Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning). J Staff should exercise caution and wear recommended PPE when in contact with individuals showing COVID-19 symptoms. Contact should be minimized to the extent possible until the infected individual is wearing a mask (if not already wearing one and if not contraindicated) and staff are wearing PPE. / Refer to PPE section to determine recommended PPE for individuals in contact with individuals with COVID-19, their close contacts, and potentially contaminated items. / Remind staff about the importance of limiting unnecessary movements between housing units and through multiple areas of the facility, to prevent cross-contamination. Ensure that staff and incarcerated/detained persons are trained to doff PPE after they leave a space where PPE is required, as needed within the scope of their duties and work details. Ideally, staff should don clean PPE before entering a different space within the facility that also requires PPE. » = If PPE shortages make it impossible for staff to change PPE when they move between different spaces within the facility, ensure that they are trained to move from areas of low exposure risk ("clean") to areas of higher exposure risk (“dirty”) while wearing the same PPE, to minimize the risk of contamination across different parts of the facility. https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 32 of 35 tulaance on Management @ig@g@ndviZG rreOOBAOGOWiKs) AGUA hoBerdnridrHRMribe/eed20 Page 350f40 igioiog g:14 pa Clinical Care for Individuals with COVID-19 Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. * = Ifa facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital (including notifying the facility/hospital in advance), See Transport section. The initial medical evaluation should determine whether a symptomatic individual is at increased risk for severe illness from COVID-19. Persons at increased risk may include older adults and persons of any age with serious underlying medical conditions, including chronic kidney disease, serious heart conditions, and Type-2 diabetes, See CDC’s website for a complete list and check regularly for updates as more data become available to inform this issue. Based on available information, pregnant people seem to have the same risk of COVID-19 as adults who are not pregnant. However, much remains unknown about the risks of COVID-19 to the pregnant person, the pregnancy, and the unborn child. Prenatal and postnatal care is important for all pregnant people, including those who are incarcerated/detained. Visit the CDC website for more information on pregnancy and breastfeeding in the context of COVID-19, “ Staff evaluating and providing care for individuals with confirmed or suspected COVID-19 should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID- 19) and monitor the guidance website regularly for updates to these recommendations. Healthcare staff should evaluate persons with COVID-19 symptoms and those who are close contacts of someone with COVID-19 in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the individual being evaluated is wearing a mask. oe — If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having symptomatic individuals walk through the facility to be evaluated in the medical unit. Clinicians are strongly encou raged to test for other causes of respiratory iliness (e.g., influenza). However, presence of another illness such as influenza does not rule out COVID-19. When evaluating and treating persons with symptoms of COVID-19 who do not speak English, use a language line or provide a trained interpreter when possible. Recommended PPE and PPE Training for Staff and Incarcerated/Detained Persons Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with individuals with confirmed and suspected COVID-19. Ensure strict adherence to OSHA PPE requirements. ° = Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95 respirator) https://www.cde.gov/coranavirus/2019-ncov/community/correction-detention/quidance-correctional-detention.html Page 33 of 38 Guidance on Management GASEndi2OAGYsBOSMICOMK) DETERMIN FAR IAA/20 Page 36 of 40 ween for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer's respiratory protection program, if individuals wearing N95 respirators have facial hair, it should not protrude under the respirator seal, or extend far enough to interfere with the device's valve function (see OSHA regulations [4 ). ~ For PPE training materials and posters, visit the CDC website on Protecting Healthcare Personnel. ./ Ensure that all staff are trained to perform hand hygiene after removing PPE. / Ensure that PPE is readily available where and when needed, and that PPE donning/doffing/disposal stations have been set up as described in the Preparation section. ./ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with someone with COVID-19 and their close contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. « = N95 respirator N95 respirators should be prioritized when staff anticipate contact with infectious aerosols or droplets from someone with COVID-19, See below for guidance on when surgical masks are acceptable alternatives for N95s. individuals working under conditions that require an N95 respirator should not use a cloth mask when an N95 is indicated. = Surgical mask Worn to protect the wearer from splashes, sprays, and respiratory droplets generated by others. (NOTE: Surgical masks are distinct from cloth masks, which are not PPE but are worn to protect others in the surrounding area from respiratory droplets generated by the wearer. Individuals working under conditions that require a surgical mask should not use a cloth mask when a surgical mask is indicated.) ~ Eye protection Goggles or disposable face shield that fully covers the front and sides of the face. ~ Asingle pair of disposable patient examination gloves Gloves should be changed if they become torn or heavily contaminated. - Disposable medical isolation gown or single-use/disposable coveralls, when feasible ° If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with an individual with confirmed or suspected COVID-19, and that clothing is changed as soon as possible and laundered, Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label. « lf there are shortages of gowns, they should be prioritized for aerosol-generating procedures, activities where splashes and sprays are anticipated, and high-contact activities that provide opportunities for transfer of pathogens to the hands and clothing of the wearer. / Note that shortages of all PPE categories have been seen during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category (including strategies to reuse PPE safely) can be found on CDC's website: https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 34 of 38 Guidance on Managemen-of Coronawiys CUpagtse a9 CW2-1 90 GerrerGorel BAG>denthail ediili2v1a420 Page 37 of 40 6 12/10/20, 6:14 PM Strategies for optimizing the supply of N95 respirators * Based on local and regional situational analysis of PPE supplies, surgical masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ~ Strategies for optimizing the supply of surgical masks * Reserve surgical masks for individuals who need PPE, Issue cloth masks to incarcerated/detained persons and staff as source control, in order to preserve surgical mask supply (see recommended PPE). ~ Strategies for optimizing the su pply of eye protection ~ Strategies for optimizing the supply of gowns/coveralls ~ Strategies for optimizing the supply of disposable medical gloves Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional or Detention Facility during the COVID-19 Response https://www.cde.gov/coronavirus/2019-ncov/com munity/correction-detention/guidance-correctional-dete ntion.html Classification of Individual Wearing PPE Incarcerated/Detained Persons Asymptomatic incarcerated/detained persons (under quarantine as close contacts of someone with COVID-19) Incarcerated/detained persons who have confirmed or suspected COVID-19, or showing symptoms of COVID-19 Incarcerated/detained persons handling laundry or used food service items from someone with COVID-19 or their close contacts Incarcerated/detained persons cleaning an area where someone with COVID-19 spends time Staff Staff having direct contact with asymptomatic incarcerated/detained persons under N95 respirator Surgical mask Gown/ Coveralls Eye Protection Gloves Use cloth masks as source control (NOTE: cloth face coverings are NOT PPE and may not protect the wearer. Prioritize cloth masks for source control among all persons who do not meet criteria for N95 or surgical masks, and to conserve surgical masks for situations that require PPE.) Additional PPE may be needed based X X on the product label. See CDC guidelines for more details, Surgical mask, eye protection, and gloves as local supply and scope Page 35 of 38 Guidance on Management @AigeanquDe Rispag ALO COMA?) MGernaient 1 dea"F fesH9/99720 Page 38 of 40 “wey orem quarantine as close contacts of someone with of duties allow. COVID-19* (but not performing temperature checks or providing medical care) Staff performing temperature checks on any X x x group of people (staff, visitors, or incarcerated/detained persons), or providing medical care to asymptomatic quarantined persons Staff having direct contact with (including Kee X x x transport) or offering medical care to individuals with confirmed or suspected COVID-19 (See CDC infection control guidelines), For recommended PPE for staff performing collection of specimens for SARS- CoV-2 testing see the Standardized procedure for SARS-CoY-2 testing in congregate settings. Staff present during a procedure on someone x x X X with confirmed or suspected COVID-19 that may generate infectious aerosols (See CDC infection control guidelines) Staff handling laundry or used food service Xx X items from someone with COVID-19 or their close contacts Staff cleaning an area where someone with Additional PPE may be needed based Xx X COVID-19 spends time on the product label. See CDC guidelines for more details. Classification of Individual Wearing PPE * A NIOSH-approved N95 respirator is preferred, However, based on local and regional situational analysis of PPE supplies, surgical masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staff. Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staff, and Visitors https://www.ede.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention. html Page 36 of 38 Guidance on Manageme ef Sarre We OORMR CHiKO-AACUARAHalaBrtrenflleGnelte4eo Page 39 of 40 12/10/20, 6:14 Ph The guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions: * = Today or in the past 24 hours, have you had any of the following symptoms? * Fever, felt feverish, or had chills? * Cough? ° Difficulty breathing? ~ In the past 14 days, have you had close contact with a person known to be infected with the novel coronavirus (COVID-19)? Vv The following is a protocol to safely check an individual's temperature: * = Wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer with at least 60% alcohol. Put on a surgical mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves ~ Check individual's temperature If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned with an alcohol Wipe (or isopropyl alcohol on a cotton swab) between each individual. - Remove and discard PPE ~ Wash hands with soap and water for at least 20 secands. If soap and water are not available, use hand sanitizer with at least 60% alcohol Vv If a physical barrier or Partition is used to protect the screener rather than a PPE-based approach, the following protocol can be used. (During screening, the screener stands behind a physical barrier, such as a glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when the person being screened sneezes, coughs, or talks.) ° Wash hands with soap and water for at least 20 seconds. if soap and water are not available, use hand sanitizer with at least 60% alcohol. * Put on a single pair of disposable gloves, ° Check the individual's temperature, reaching around the partition or through the window. Make sure the screener’s face stays behind the barrier at all times during the screening. If performing a temperature check on multiple individuals, ensure that a clean Pair of gloves is used for nttps://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.htm| Page 37 of 38 Guidance on Management CASE ahi GMO ORG RIE Ke) (AQELUMEMnd S8ethionFHaGled 24H2/20 Page 40 of 40 = 12/10/20, 6:14 PM each individual and that the thermometer has been thoroughly cleaned in between each check, If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned with an alcohol wipe (or isopropyl alcohol on a cotton swab) between each individual. e Remove and discard gloves. Last Updated Dec. 3, 2020 Content source: National Center for |mmunization and Respiratory Diseases (NCIRD), Division of Viral Diseases https://www.cde.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html Page 38 of 38

2020-01-17 22:01:59.39163+00

Murdock

*138OPINION. Murdock: The petitioners contend that the Commissioner incorrectly determined the amounts of their respective gross shares of the income from the estate of Richard Sharpe. The Commissioner did not attempt to explain or justify his determination. The records *139of the trustee under the will of Richard Sharpe were presented to us in detail, and from an examination of these records in connection with the testimony of the trustee himself, it appears that the Commissioner overstated the total amount distributable to and received by the three petitioners from the trustee. This total amount consisted of a small item of interest on bonds and a large item of royalties as set forth in our findings of fact. Richard Sharpe, the father of the petitioners, had provided in his will that one-eighth of the mine rents and income from the land leased to the Alden Coal Co. should be distributed to his wife. She died before the taxable years in question, and by the terms of his will this one-eiglith of the mine rent and income from the coal lands was to be divided equally among the children. Thus, after the death of the mother, each child was entitled to three-twentieths for life instead of one-eighth, which had theretofore been given them. This was the situation at the beginning of the year 1924. The petitioners concede that they are not entitled to depletion in regard to the three-twentieths which each of them received for life under these provisions of the will. Richard Sharpe, the father, also provided in his will that two-eighths of the mine rents and income from the land leased to the Alden Coal Co. should be invested by his trustees and the annual income from the investments distributed in equal parts to his five children. This part of the will was found by the Orphans’ Court of Luzerne County to offend against the rule of Pennsylvania law which forbade the imposition of restraints upon the use and enjoyment of property for an unreasonable period of time. The court further held that the testator’s five children were entitled to have the fund, which had been accumulated under this provision of the will, distributed to them in equal shares, and, from time to time, to have distributed to them, in equal shares, one-fourth of the royalties which might be received in the future by the trustees. The five children were also entitled to share equally in the residue of the father’s estate which was not specifically devised or bequeathed by him. The provision of the will directing accumulation having failed, this part of the father’s estate was then a part of the residue and went to the children not for life only, but forever, subject, however, to the trust. With these portions of the royalties received by the trustee during 1924 we are now concerned. Elizabeth Sharpe, one of the original five children of the testator, Richard Sharpe, died on June 6, 1924, without issue. This terminated her life estate in the three-twentieths of the income from the coal property, and under the terms of her father’s will the four surviving children were thereafter entitled to receive this income. *140On September 25, 1924, Sally Sharpe, one of the original five children, died without issue and the question arose as to who was entitled to the three-twentieths of the income from the mine property which had been hers for life under the terms of her father’s will. This question depended upon what their father had meant in his will when he said “ in the event of the death of any of my said children without leaving a child or children at the time of such death, then in trust for the use of my surviving children, their heirs and assigns in equal parts,” and particularly what he meant in this clause by the words “my surviving children.” All of the parties in interest petitioned the court of Luzerne County to settle this question and the court did so by deciding that the words meant surviving at the death of the testator. In its opinion the court stated that after the death of Sally, the three-twentieths of the coal royalties would vest in Richard Sharpe, Mary A. Sharpe, Martha Sharpe Tucker and the estate of Elizabeth Sharpe. The petitioners contend that they are entitled to deduct depletion from that part of the income from the Alden lease which represents their respective shares of the two-eighths which was to be accumulated, of three-twentieths of the income which was formerly paid to Elizabeth for life, and also of three-twentieths of the income which was formerly Sally’s for life. Under the will of Richard Sharpe a trust was created, the income from which for the year 1924 should have been reported in accordance with the provisions of section 219 of the Revenue Act of 1924. This was not the kind of a trust that was dealt with in Julia N. DeForest, 4 B. T. A. 1059. The trustee had other duties beside merely collecting the income and paying it over to the beneficiaries. The petitioners do not contend that the trustee was relieved from reporting any part of the gross income received from the Alden lease. There is nothing to indicate that after the decree of the Orphans’ Court on April 26, 1924, the trustee should not receive and distribute all of the gross royalties in accordance with the will as modified by the order of the court, nor is there anything to indicate that after the decree of January 18, 1926, the trustee should not receive and distribute all of the royalties in accordance with the will as modified by the two orders. Thus, all of the gross roj^alties were apparently properly received by a trustee during the year 1924 and in reporting this income, the provisions of section 219 of the Revenue Act of 1924 governed. Section 219 of the Revenue Act of 1924 provides for the taxation of the income of any kind of property held in trust. The income of the trust estate must be reported by the fiduciary. From the net income of the trust depletion may be deducted by the fiduciary. *141There is also allowed as a deduction in computing the net income of the trust, the amount of the income thereof for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries, but the amount so allo wed as a deduction must be included in computing the net income of the beneficiaries whether distributed to them or not. There is no provision in section 219 for the deduction of depletion by the beneficiary from the net income of the trust which is to be distributed currently by the fiduciary to the beneficiary. As Congress has not seen fit to allow the beneficiaries to deduct depletion from their distributive shares of the net income of the trust, then of course we can not. On the question of depletion our judgment is for the respondent. Baltzell v. Mitchell, 3 Fed. (2d) 428; certiorari denied, 268 U. S. 690. Cf. Arthur H. Fleming, et al., 6 B. T. A. 900; Detroit Trust Co. et al., Executors, 16 B. T. A. 207, and other cases cited in these two cases. The conclusion which we have reached that Congress has not given the beneficiaries the right to deduct depletion is strengthened by a further consideration of section 219. There, in subdivision (c), Congress provided that if no part of the income of the trust is included in computing the net income of any beneficiary, then the trust shall be allowed, in addition to other credits, the same credits as are allowed by subdivisions (a) and (b) of section 216, and in subdivision (d) of section 219, Congress provided that if any part of the income of a trust is included in computing the net income of any beneficiary, such beneficiary shall, for the purpose of the normal tax, be allowed as credits, in addition to the credits allowed to him under section 216, his proportionate share of such amounts specified in subdivisions (a) and (b) of section 216 as under section 219 are required to be included in computing his net income, and any remaining portion of such amounts specified in subdivisions (a) and (b) of section 216, shall, for the purpose of the normal tax, be allowed as credits to the trust. Thus, Congress specifically provided for the division between the trust and the beneficiary of the credit for dividends and interest, and had Congress intended that the deduction for depletion should be divided in any way between the trust and the beneficiaries, it is only reasonable to suppose that it would have made specific provision for it instead of merely providing that the trust should have the deduction. Counsel for the petitioners at the time of the hearing moved to vacate the Commissioner’s answers and for entry of judgment by default because of the fact that the answers were filed late without the time therefor being properly extended under the Board’s rules. This motion is denied, for, as we have pointed out, the facts alleged by *142the petitioners do not, in our opinion, entitle them to any relief on the depletion question, while on the other question our judgment is in their favor regardless of the motion. Judgment will be entered under Bule 50.

2020-12-03 01:00:15.110902+00

http://www.ca5.uscourts.gov/opinions/unpub/20/20-20229.0.pdf

Case: 20-20229 Document: 00515658310 Page: 1 Date Filed: 12/02/2020 REVISED United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-20229 December 1, 2020 Summary Calendar Lyle W. Cayce Clerk Taajwar Ali, Plaintiff—Appellee, versus Rodney Sneed, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-25 Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:* Taajwar Ali, an educational aide at Harris County Department of Education Academic Behavior School, brought a Fourth Amendment excessive-force claim under 42 U.S.C. § 1983 against Rodney Sneed, his co- * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-20229 Document: 00515658310 Page: 2 Date Filed: 12/02/2020 No. 20-20229 worker who is a contract sheriff’s deputy at the school. Sneed moved for summary judgment, asserting qualified immunity. When ruling on Sneed’s motion for summary judgment, the district court flagged, in a footnote, “the possibility that Sneed was not acting under the color of state law when he allegedly punched Ali.” The district court noted that “defendants appear to have conceded the issue” of state action. 1 Although the district court did not determine whether Ali had pleaded state action to maintain his § 1983 claim, it nevertheless denied Sneed’s motion for summary judgment. Sneed timely appealed. We need not address the merits of Sneed’s appeal because the district court did not first determine whether it had subject-matter jurisdiction over the case. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507 , 511 (5th Cir. 1980) (providing that state action “is required in order to invoke the district court’s jurisdiction). “Subject-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134 , 141 (2012). Moreover, “[w]hen a requirement,” such as state action, “goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.” Id. (citation omitted). Because the district court did not determine whether the use of force was related to Sneed’s state-granted authority, the district court did not fulfill its obligation to determine if it had subject-matter jurisdiction over this case. Accordingly, we REMAND the case to the district court with instructions to determine if the district court has subject-matter jurisdiction. 1 However, the record reflects that Sneed did not concede the state action. In his answer, Sneed “denies that he was acting within the scope of his employment at the time of the alleged incident.” 2

2021-01-27 00:00:52.793669+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv1230-38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WILLIAM B. BALL, Plaintiff, v. Civil Action No. 19-1230 (JEB) U.S. MARSHAL SERVICE, et al., Defendants. MEMORANDUM OPINION Pro se Plaintiff William B. Ball, currently serving a federal sentence in Florida, brought this Freedom of Information Act suit regarding requests for documents about his criminal case that he submitted to several federal agencies. The Court previously dismissed two Government Defendants and now grants the remaining Defendants’ Motion for Summary Judgment. That Motion contends that the agencies’ search was adequate and the exemptions relied on appropriate. Particularly given that Ball never responded to the Motion, the Court will agree. I. Background Ball initially sued the U.S. Marshal Service, the Department of Homeland Security, the U.S. Secret Service, the Federal Bureau of Investigation, and the Office of Intelligence and Analysis in the Treasury Department. See ECF No. 1 (Complaint). He sought to enforce his request to those entities for the following documents: 1) Arrest reports; 2) investigatory records, including hand-written notes and final drafts; 3) reports on evidentiary and/or scientific information, findings, and conclusions; 4) plea agreements of co- defendants; 5) charging documents; 6) classifications of the charged offenses; 7) video tapes and/or DVDs; 8) telephonic recordings; 9) computer discs and storage devices; 10) 2 computerized notepad 1  discs; 11) photographs; and 12) all other information, data and reports of any kind not listed above and exempt by law. Id. at 3. The Court subsequently granted the USSS and FBI’s motion to dismiss, see ECF Nos. 22 (Order), 23 (Mem. Op.), leaving USMS, DHS, and Treasury, which now seek summary judgment. See ECF No. 30 (Def. MSJ). Although the Court granted Ball no fewer than four extensions of his deadline to respond, he has still failed to do so. See Minute Orders of 7/28/20, 9/4/20, 10/26/20, 12/2/20. II. Legal Standard Summary judgment shall be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 247-48 (1986); Holcomb v. Powell, 433 F.3d 889 , 895 (D.C. Cir. 2006). “[A] dispute about a material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248 . “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83 , 87 (D.D.C. 2009); Bigwood v. United States Agency for Int’l Dev., 484 F. Supp. 2d 68 , 73 (D.D.C. 2007). A defendant agency seeking summary judgment in a FOIA case must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record that it has located has been produced to the plaintiff or is exempt from disclosure. See Students Against Genocide v. Dep’t of State, 257 F.3d 828 , 833, 838 (D.C. Cir. 2001). The Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they “describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within 2 the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724 , 738 (D.C. Cir. 1981). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197 , 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770 , 771 (D.C. Cir. 1981)). III. Analysis FOIA provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person.” 5 U.S.C. § 552 (a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552 (a)(4)(B); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 , 755 (1989). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552 (a)(4)(B)). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure . . . .’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 , 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164 , 173 (1991)). Defendants move for summary judgment, asserting that their respective searches were adequate, their exemptions properly applied, and their segregation of responsive materials appropriate. Although Ball never responded, the Court cannot grant summary judgment as 3 conceded and will thus briefly touch on each of the Government’s arguments. See Winston & Strawn, LLP v. McLean, 843 F.3d 503 , 506–08. (D.C. Cir. 2016) A. Adequacy of Search “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia- Lucena v. U.S. Coast Guard, 180 F.3d 321 , 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540 , 542 (D.C. Cir. 1990)); accord Steinberg v. Dep’t of Justice, 23 F.3d 548 , 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476 , 1485 (D.C. Cir. 1984). The adequacy of an agency’s search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121 , 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See id. On the other hand, if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542 . The three agencies that remain — i.e., DHS, USMS, and Treasury — each conducted searches. See MSJ at 5–7. DHS, in fact, tasked two different components with looking for responsive documents. Id. at 5–6. That agency and USMS recovered materials; only Treasury came up empty. The explanations of the searches are sufficient here, id. at 5–7 (citing relevant declarations), especially where Plaintiff offers no challenge. 4  B. Exemptions The next question is whether the agencies’ withholdings are justified. Congress exempted nine categories of documents from FOIA’s broad sweep. “[T]he statutory exemptions, which are exclusive, are to be ‘narrowly construed.’” Norton, 309 F.3d at 32 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352 , 361 (1976)). The Government here relies on Exemptions 3, 6, 7(C), and 7(E) to justify those documents that it withheld in full and in part. To begin, Exemption 3 covers records “specifically exempted from disclosure by statute” provided that such statute either “(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552 (b)(3)(A). The Federal Victim and Witness Protection Act, 18 U.S.C.§ 3509(d), falls into the latter category because it sets forth specific criteria for withholding information concerning a child who is a victim of physical or sexual abuse. See Rodriguez v. Dep’t of Army, 31 F. Supp. 3d 218 , 236– 37 (D.D.C. 2014). The statute prohibits the Government from disclosing documents in connection with a criminal proceeding that reveal “the name or any other information concerning a child,” as well as information in those documents “that concerns a child.” 18 U.S.C. § 3509 (d)(1)(A). Here DHS “withheld names and other information about child victims and witnesses.” MSJ at 8. Its explanation of why this was appropriate in regard to child- pornography materials strikes the Court as appropriate and is not challenged. Similarly, the Government redacted “names and other personally identifiable information of law enforcement officers and other government officials involved in the criminal investigation of Plaintiff,” as well as “personally identifiable information relating to third parties, including relatives and suspected associates of Plaintiff,” claiming withholding was proper under 5 Exemptions 6 and 7(C). Id. at 9 . Exemption 7(C) allows the withholding of “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” It governs here (rather than Exemption 6) because the documents were compiled for law-enforcement purposes. See 5 U.S.C. § 552 (b)(7)(C); id. § 552(b)(6). This exemption requires agencies and reviewing courts to “balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489 , 1491 (D.C. Cir. 1993) (quoting Davis v. U.S. Dep’t of Justice, 968 F.2d 1276 , 1281 (D.C. Cir. 1992)). The Court finds the privacy interests here substantial, a decision consistent with D.C. Circuit law. As it relates to the private citizens, for example, “third parties who may be mentioned in investigatory files, as well as . . . witnesses and informants who provided information during the course of an investigation,” have a privacy interest in the contents of law- enforcement records. Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885 , 894 (D.C. Cir. 1995); see also Kimberlin v. Dep’t of Justice, 139 F.3d 944 , 949 (D.C. Cir. 1998) (“It goes almost without saying . . . that individuals other than [the target of the investigation] whose names appear in the file retain a strong privacy interest in not being associated with an investigation . . . .”). The same is true for government officials involved in the investigation. See Lesar v. U.S. Dep’t of Justice, 636 F.2d 472 , 487–88 (D.C. Cir. 1980). Defendants have sufficiently explained (without contradiction) why this personally identifying information should remain private and is not outweighed by any public need to know. These redactions are thus also proper. 6  Finally, Exemption 7(E) authorizes the Government to withhold records and documents if, inter alia, they were “compiled for law enforcement purposes,” provided that their publication “would disclose techniques and procedures for law enforcement investigations or prosecutions.” 5 U.S.C. § 552 (b)(7)(E). “USMS and [DHS] both relied on this exemption to withhold internal codes and identification numbers, including Plaintiff’s FBI number and Federal Identification number and ICE’s internal Case Number and Report of Investigation.” MSJ at 17. This is reasonable. See Rojas-Vega v. ICE, 302 F. Supp. 3d 300 , 310 (D.D.C. 2018) (holding that Defendant properly invoked Exemption 7(E) for “internal URLs, case numbers, case categories, subject identification numbers, case identification numbers, and internal identifying codes and departure statuses”). In addition, the agency redacted “material that [provides] details of how ICE conducts a criminal investigation involving an undercover agent.” MSJ at 19. That decision is also entirely unobjectionable. C. Segregability Last, FOIA requires that an agency disclose any reasonably segregable portions of requested records. See 5 U.S.C. § 552 (b). Although the government is “entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575 , 582 (D.C. Cir. 2013) (alteration in original) (citation omitted), this presumption of compliance does not obviate its obligation to carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 , 261 (D.C. Cir. 1977). The agency must provide “a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110 , 120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Off. of the President, 97 F.3d 575 , 578 (D.C. Cir. 7 1996) (determining Government affidavits explained nonsegregability of documents with “reasonable specificity”) (citation omitted). Defendants here explain that “USMS and ICE conducted a line-by-line review of the responsive records to identify information exempt from disclosure or for which a discretionary waiver of exemption could be applied.” MSJ at 21 (citations omitted). The Court has no basis to conclude that more should have been disclosed. IV. Conclusion For the foregoing reasons, the Court will issue an Order granting summary judgment to Defendants. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 26, 2021 8

2021-01-27 00:02:21.790514+00

http://www.courts.ca.gov/opinions/documents/A158632.PDF

Filed 1/26/21 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE JASON SELF et al., A158632 Plaintiffs and Appellants, v. CHER-AE HEIGHTS INDIAN (Humboldt County Superior Court COMMUNITY OF THE TRINIDAD No. DR190353) RANCHERIA, Defendant and Respondent. The question in this case is whether sovereign immunity bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe. We hold that the tribe’s sovereign immunity bars the action. Congress has not abrogated tribal immunity for a suit to establish a public easement. The plaintiffs fail to persuade us that a common law exception to sovereign immunity for “immovable property” applies here. Consistent with decades of Supreme Court precedent, we defer to Congress to decide whether to impose such a limit, particularly given the importance of land acquisition to federal tribal policy. We affirm the trial court’s dismissal of the suit. 1  BACKGROUND A. As “ ‘separate sovereigns pre-existing the Constitution,’ ” Indian tribes possess the “ ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ ” (Michigan v. Bay Mills Indian Cmty. (2014) 572 U.S. 782 , 788 (Bay Mills).) Tribes are domestic dependent nations subject to Congress’s plenary authority. (Ibid.) Tribal immunity is part and parcel of Indian sovereignty and self-governance. (Ibid.) It protects tribes from the financial burdens of defending against suits, encourages economic development and self-sufficiency, and furthers tribal self-governance. (People v. Miami Nation Enterprises (2016) 2 Cal.5th 222 , 235 (Miami Nation).) Because it is a matter of federal law, tribal immunity is “not subject to diminution by the States.” (Bay Mills, supra, 572 U.S. at p 789.) Tribes enjoy immunity from suit regardless of whether their activities are commercial in nature or whether their activities take place on a reservation. (Id. at p. 790; Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751 , 758-760 (Kiowa).) The United States Supreme Court has “time and again . . . dismissed any suit against a tribe absent congressional authorization (or a waiver).” (Bay Mills, supra, 572 U.S. at p. 789.) In so doing, the court has deferred to Congress to determine the nature and limits of tribal immunity because it is Congress’s job, not the courts’, to weigh competing policies and create exceptions to tribal immunity. (Id. at pp. 800-801.) 2  In short, tribal immunity is the rule, subject only to two exceptions: when a tribe has waived its immunity or Congress has authorized the suit. (Bay Mills, supra, 572 U.S. at pp. 789-791.) B. Defendant Cher-Ae Heights Indian Community of the Trinidad Rancheria (“Tribe”) is a federally recognized Indian tribe. (See 84 Fed.Reg. 1200-01, 1201 (Feb. 1, 2019).) It purchased the coastal property at issue in fee simple absolute. The Tribe has applied to the federal Bureau of Indian Affairs (“Bureau”) to take the property into trust for the benefit of the Tribe. (See 25 U.S.C. § 5108 .) Some background on the administrative process is helpful to understanding the parties’ arguments.1 As part of the trust acquisition process, federal law requires a review of the Tribe’s title and sets forth a process for resolving title issues. (See 25 C.F.R. § 151.13 .) If the federal government approves the Tribe’s trust application, interested parties may appeal that decision. (See 25 C.F.R. § 151.12 (d); see also, e.g., Crest-Dehesa-Granite Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific 1 We take judicial notice of facts related to the process appearing in three documents attached to the Tribe’s request to the trial court for judicial notice: (1) A December 21, 2019, letter from the Acting Regional Director of the Bureau to the Coastal Commission indicating that the proposed trust acquisition is consistent with the California Coastal Act; (2) a March 11, 2019, letter from the Coastal Commission to the Regional Director of the Bureau concurring with the Bureau’s consistency determination; and (3) the Coastal Commission’s Adopted Staff Report concerning the Bureau’s consistency determination. (See Evid. Code, § 452, subd. (c); see also Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209 , 1225, fn. 6 [taking judicial notice of Coastal Commission determination and staff report].) 3 Regional Director, Bureau of Indian Affairs (IBIA 2015) 61 IBIA 208, 214-215 [remanding decision to take tribal property into trust due to failure to address adjacent property owners’ concerns regarding easement rights].) Federal law also includes a mechanism for obtaining a right of way over tribal trust lands, with the consent of the tribe. ( 25 U.S.C. §§ 323 , 324; 25 C.F.R. § 169.101 .) Because the Tribe’s proposed trust acquisition involves coastal property, the federal Coastal Zone Management Act imposes additional requirements. Each federal agency whose activity affects a coastal zone must certify that the activity is consistent to the maximum extent practicable with the state’s coastal management policies. (See 16 U.S.C. § 1456 (c); see also 15 C.F.R. § 930.36 .) The state may concur or object to the federal consistency determination as part of a public process. ( 16 U.S.C. § 1456 (c)(3)(A); 15 C.F.R. §§ 930.35 , 930.39, 930.41, 930.42, 930.43.) Here, the Bureau determined the Tribe’s proposal is consistent with state coastal policies, including public access requirements in the state Coastal Act. (See Pub. Resources Code, § 30210 [“maximum access … and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse”]; see also, e.g., Pub. Resources Code, §§ 30211, 30212, 30214.) Our Coastal Commission—the agency primarily responsible for implementing the Coastal Act (see Pub. Resources Code, § 30330)— concurred with the Bureau’s determination. After securing commitments from the Tribe to protect coastal access and coordinate 4 with the state on future development projects, the Commission concluded that the Tribe’s proposal “would not interfere with the public’s right to access the sea” and would be consistent with public access policies. In the future, if the Tribe violates the state’s coastal access policies, the Coastal Commission may request that the Bureau take appropriate remedial action. (See 15 C.F.R. § 930.45 (b)(1); see also 16 U.S.C. § 1456 (c)(3)(A) [requiring new consistency review for future development projects that require federal permits].) C. According to the complaint, plaintiff Jason Self uses the Tribe’s coastal property to access the beach for recreational purposes and for his kayaking business. Plaintiff Thomas Lindquist also uses the property to access the beach for recreation. They allege that the prior owner of the property dedicated a portion of it to public use, either expressly or impliedly, between 1967 and 1972. (See Civ. Code, § 1009, subd. (b) [limiting implied dedications of public easements to those established prior to March 4, 1972].) The complaint seeks to quiet title to a public easement for vehicle access and parking on the property. Self and Lindquist do not allege that the Tribe has interfered with their coastal access or that it plans to do so. They worry that the Tribe might do so in the future, and they filed this case out of “an abundance of caution.” Once the land is placed in trust, the federal government would hold title to it for the benefit of the Tribe. (See 25 U.S.C. § 5108 .) The United States is immune to actions to quiet title to Indian trust land. (28 U.S.C. § 2409a(a).) 5  In the trial court, the Tribe entered a special appearance and, citing sovereign immunity, moved to quash service of process and to dismiss the complaint for lack of subject matter jurisdiction. The trial court granted the motion and dismissed the case with prejudice.2 DISCUSSION A. It is settled that an Indian tribe is immune to suit in the absence of waiver or congressional abrogation of the tribe’s immunity. (Bay Mills, supra, 572 U.S. at pp. 788-790; Kiowa, supra, 523 U.S. at p. 754.) Self and Lindquist do not argue either exception applies here. Ordinarily, then, we must affirm the trial court’s dismissal. (Bay Mills, supra, 572 U.S. at p. 791 (“Unless Congress has authorized Michigan’s suit, our precedents demand that it be dismissed.”) Self and Lindquist argue that we should recognize an existing common law exception to sovereign immunity. They contend that, at common law, sovereigns such as states and foreign governments were not immune to property disputes, under the immovable property exception. The United States Supreme Court has never applied such an exception to a tribe and recently declined to decide the question in 2 Self and Lindquist assert that the trial court abused its discretion in denying judicial notice of documents relating to gambling revenues of Indian tribes. We find no error in the court’s conclusion that the materials are irrelevant. We deny as irrelevant Self and Lindquist’s request that we take judicial notice of the same documents, as well as the Tribe’s request for judicial notice of a Petition for Writ of Administrative Mandamus in Humboldt County Superior Court Case No. CV190327 and a 1997 report by the Advisory Council on California Indian Policy. 6 Upper Skagit Indian Tribe v. Lundgren (2018) __ U.S. __, __ [ 138 S.Ct. 1649 , 1652] (Upper Skagit).) We review the immunity issue de novo. (Miami Nation, supra, 2 Cal.5th at p. 250.) B. Self and Lindquist are correct that states and foreign sovereigns are not immune to suits regarding real property located outside of their territorial boundaries. We are not persuaded, however, that a common law exception extends to tribes or that we should depart from the standard practice of deferring to Congress to determine limits on tribal immunity. 1. In State of Georgia v. City of Chattanooga (1924) 264 U.S. 472 , 479-480 (Chattanooga), the Supreme Court held that when a state purchases real property in another state, it is not immune to suit over rights to the property. Georgia had purchased land for a railroad yard in Chattanooga, Tennessee. (Id. at p. 478.) It sued to enjoin the city from condemning a right of way though the property, arguing that it had never consented to suit in Tennessee courts. (Id. at p. 479.) The Supreme Court held Georgia’s foray into the Tennessee railroad business was a private undertaking, not a sovereign one: “Having acquired land in another State for the purpose of using it in a private capacity, Georgia can claim no sovereign immunity or privilege in respect to its expropriation.” (Id. at pp. 479-480.) “Land acquired by one State in another State is held subject to the laws of the latter and to all the incidents of private ownership.” (Id. at p. 480.) 7  Simply because this rule applies to states, however, does not mean it also applies to tribes. The Supreme Court has “often noted . . . that the immunity possessed by Indian tribes is not coextensive with that of the States.” (Kiowa, supra, 523 U.S. at p. 756.) Self and Lindquist acknowledge that, unlike tribal immunity, state sovereign immunity turns on the nature of the constitutional compact as informed by the Eleventh Amendment. (See Franchise Tax Board of Cal. v. Hyatt (2019) __ U.S. __, __ [ 139 S.Ct. 1485 , 1497-1498].) Tribes, who were not parties to that compact, did not surrender any aspect of their sovereignty as part of the constitutional plan. (See Bay Mills, supra, 572 U.S. at pp. 789-790.) Tribes retain a “special brand of sovereignty,” and both its nature and extent “rests in the hands of Congress.” (Id., at p. 800.) Indeed, in contrast to Chattanooga, the Supreme Court has not limited tribal immunity to traditional sovereign activities, as opposed to private commercial ventures. In Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma (1991) 498 U.S. 505 , 510 (Potawatomi), the Supreme Court rejected an argument that a tribe’s off-reservation cigarette sales were too removed from the tribe’s sovereign interests to be covered by tribal immunity. Instead the court deferred to Congress to make those kinds of judgments, pointing to Congress’s policy objectives of promoting tribal self-governance, self- sufficiency, and economic development. (Ibid.) Land acquisition, moreover, has a far stronger nexus to tribes’ sovereign interests than cigarette sales. As we explain below, after Indian tribes lost millions of acres of reservation land due to calamitous federal policies enacted in 8 the late 19th century, Congress made land acquisition a central feature of its tribal policy. Upper Skagit does not help Self and Lindquist. In his concurring opinion, Chief Justice Roberts stated that the immovable property rule applies to states (citing Chattanooga) but reserved the question of whether it applies to tribes. (Upper Skagit, supra, __ U.S. at pp. __ [138 S.Ct. at pp. 1655-1656] (conc. opn. of Roberts, C.J.)). Justice Thomas would have applied it to tribes but only found support for that position from Justice Alito. (Id. at pp. __ [138 S.Ct. at pp. 1661-1663] (dis. opn. of Thomas, J.).) The majority opinion does not reach the question. (Id. at pp. 1653-1654.) 2. Self and Lindquist fare no better with foreign sovereign immunity. They note that Chief Justice Marshall’s opinion in The Schooner Exchange v. McFaddon (1812) 11 U.S. 116 (Schooner Exchange) articulated a common law immovable property exception for foreign sovereigns, albeit in dicta. (Id. at p. 145 [“A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual.”].) They also point to a statute: the Foreign Sovereign Immunities Act includes an exception for immovable property (28 U.S.C. 1605(a)(4)), which was intended to codify “an exception to sovereign immunity recognized by international practice.” (Permanent Mission of India to the United Nations v. City of New York (2007) 551 U.S. 193 , 200.) 9  Neither the dicta in Schooner Exchange nor the Foreign Sovereign Immunities Act establishes that a common law exception applies to foreign sovereigns. Schooner Exchange concerned a French warship, not real property; the court held that United States courts lack jurisdiction over the warship. (Schooner Exchange, supra, 11 U.S. at p. 147.) Thereafter, courts interpreted Schooner Exchange to establish “virtually absolute immunity” for foreign sovereigns. (Verlinden B.V. v. Central Bank of Nigeria (1983) 461 U.S. 480 , 486 (Verlinden B.V.).) For the next 164 years, foreign sovereigns were generally immune to suit. (Ibid.) This was a matter of comity, rather than a constitutional restriction, and courts deferred to the executive branch (specifically, the State Department) when deciding whether to assert jurisdiction over a foreign sovereign. (Id. at pp. 486-487.) At least some of these cases involved real property owned by a foreign sovereign. (E.g., Knocklong Corp. v. Kingdom of Afghanistan (Nassau Cty. Ct. 1957) 167 N.Y.S.2d 285 , 286-287 [granting motion to dismiss suit based on sovereign immunity of the Kingdom of Afghanistan, as “ ‘suggest[ed]’ ” by amicus curiae State Department, in an action challenging title to real property].) When this case-by-case practice proved problematic, Congress passed the Foreign Sovereign Immunities Act in 1976. (Verlinden B.V., supra, 461 U.S. at pp. 487- 488.) In short, the common law does not seem to have driven foreign sovereign immunity. Rather, the courts deferred to the political branches—first the executive branch and then Congress after the Foreign Sovereign Immunities Act. Even if there were a common law exception to foreign sovereign immunity, Self and Lindquist do not explain why we should extend it to 10 tribes. Tribes are not foreign sovereigns; “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.” (Cherokee Nation v. Georgia (1831) 30 U.S. 1 , 16; see also id. at p. 18 [noting that Article III, section 8 of the United States Constitution refers separately to “foreign nations” and “the Indian tribes”].) The Supreme Court has rejected the notion that tribal sovereign immunity must be congruent with foreign sovereign immunity. (Bay Mills, supra, 572 U.S. at pp. 797-798.) Tribes enjoy immunity for commercial activities (Kiowa, supra, 523 U.S. at p. 758), notwithstanding the fact that Congress has denied it to foreign sovereigns. ( 28 U.S.C. § 1605 (a)(2).) In fact, the Supreme Court has pointed to the Foreign Sovereign Immunities Act as an example of its deference to Congress on both foreign and tribal immunity: “In both fields, Congress is in a position to weigh and accommodate the competing policy concerns and reliance interests.” (Kiowa, supra, 523 U.S. at p. 759.) 3. Even assuming a common law exception applies to states and foreign sovereigns, there are at least three additional reasons counselling us to defer to Congress to decide whether it should apply to tribes. a. Deferring to Congress on tribal immunity has been the Supreme Court’s standard practice for decades. The court has acknowledged that it has the authority to limit tribal immunity, but it has pointedly refused to impose limits, despite its own skepticism about the doctrine’s merits and somewhat hazy origins. (Kiowa, supra, 523 U.S. at pp. 756- 11 757 [tribal immunity developed “almost by accident” and “with little analysis”]; id. at pp. 758-759.) Self and Lindquist recycle arguments that the Court has rejected in other cases: immunity could leave them with no effective judicial remedy (Potawatomi, supra, 498 U.S. at p. 514); tribal immunity should not be more broad than that of other sovereigns (see Bay Mills, supra, 572 U.S. at p. 800); tribes should not enjoy immunity for commercial activities. (E.g., Potawatomi, supra, 498 U.S. at p. 510.) For decades, the Supreme Court has set aside these and other concerns, treated tribal sovereign immunity as settled law, and deferred to Congress for the “simple reason[][that] it is fundamentally Congress’s job, not ours, to determine whether or how to limit sovereign immunity.” (Bay Mills, supra, 572 U.S. at p. 800.) We see no reason to depart from this practice. b. We should also defer to Congress because supporting tribal land acquisition is a key feature of modern federal tribal policy, which Congress adopted after its prior policy divested tribes of millions of acres of land. Deference is particularly appropriate when Congress has been active in the subject matter at issue. (See Bay Mills, supra, 572 U.S. at pp. 802-803; Kiowa, supra, 523 U.S. at pp. 758-759.) In the late 19th century, the federal government abandoned its policy of supporting Indian self-governance and control of Indian lands and instead adopted a policy “to extinguish tribal sovereignty, erase reservation boundaries, and force assimilation of Indians into the society at large.” (County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation (1992) 502 U.S. 251 , 253-254 (County of Yakima).) The Dawes Act of 1887 ( 24 Stat. 388 ) – “which empowered 12 the President to allot most tribal lands nationwide without the consent of the Indian nations involved” (County of Yakima, supra, 502 U.S. at p. 254) and permitted the sale to non-Indians of surplus lands located on Indian reservations – devastated tribes, aggravated their poverty, and resulted in 90 million acres of tribal land passing to non-Indians. (Bay Mills, supra, 572 U.S. at pp. 811-813 (conc. opn. of Sotomayor, J.).) Congress abruptly ended this approach with the enactment of the Indian Reorganization Act ( 48 Stat. 984 ) in 1934 and returned to the policy of supporting tribal self-determination and self-governance. (County of Yakima, supra, 502 U.S. at p. 255.) Given the massive loss of tribal lands in the preceding decades, Congress authorized the federal government to restore surplus lands to tribes. (Ibid.) Congress also authorized the government to acquire land both within and outside existing reservations “for the purpose of providing land for Indians.” ( 48 Stat. 985 ; see 25 U.S.C. § 5108 ; County of Yakima, supra, 502 U.S. at p. 255.) The same provision empowers the federal government to take land into trust for the benefit of a tribe, as the Tribe has requested here. (See 25 U.S.C. § 5108 .) Federal regulations establish an administrative process for addressing title concerns when the Bureau takes land into trust ( 25 C.F.R. § 151.13 ) as well as for obtaining easements over trust lands ( 25 C.F.R. § 169.101 ; see also 25 U.S.C. §§ 323 , 324). The Indian Reorganization Act advances tribes’ sovereign interests by helping them restore land they lost. And regardless of whether a particular tribe lost land, tribal land acquisition generally advances Congress’s goals of tribal self-sufficiency and economic development. By authorizing the federal government to acquire land 13 outside of existing reservations in trust for the benefit of a tribe, the federal scheme implicitly recognizes that tribes may acquire land for sovereign purposes beyond the borders of a reservation. (See 25 U.S.C. § 5108 ; 25 C.F.R. § 151.3 (a).) This further distinguishes tribal land acquisition from that of states and foreign sovereigns. Decades after the enactment of the Indian Reorganization Act, Congress considered whether sovereign immunity should protect trust lands. In 1972, Congress waived the federal government’s sovereign immunity in title disputes over real property under the Quiet Title Act. (28 U.S.C. § 2409a; see Block v. North Dakota (1983) 461 U.S. 273 , 275- 276.) But it retained immunity for property that the government holds in trust for Indian tribes. (28 U.S.C. § 2409a(a).) The Justice Department, which proposed the exception for Indian lands, observed that “Indians . . . have often surrendered claims to vast tracks of land” and proposed the exclusion because “[t]he Federal Government’s trust responsibility for Indian lands is the result of solemn obligations entered into by the United States Government.” (See H.R. Rep. No. 1539, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S. Code Cong. & Admin. News, pp. 4547, 4556-67, written testimony from Mitchell Melich, Solicitor, U.S. Dept. of Interior.) Congress adopted the exclusion notwithstanding testimony that title disputes arise on Indian lands just like they do on federal lands covered by the bill’s waiver of immunity. (Dispute of Titles on Public Lands, Hearings before Sen. Com. on Interior and Insular Affairs, Subcom. on Public Lands, on Sen. No. 216, Sen. No. 579, and Sen. No. 721, 92nd Cong., 1st. Sess., at pp. 58-60 (Sept. 30, 1971), testimony of Thomas E. McKnight.) 14  Congress has also addressed the sovereign immunity of Indian tribes themselves in connection with tribal land. Just eight months after the Supreme Court issued its decision in Upper Skagit, supra, __ U.S. __ [ 138 S.Ct. 1649 ], Congress reaffirmed its approval of tribal immunity in the context of a statute that, among other things, authorizes Indian tribes to grant rights of way over their land for energy resource development. (Pub.L. No.115-325, Title I, §§ 103(a), 105(d) (Dec. 18, 2018) 132 Stat. 4447 , 4454, codified at 25 U.S.C. § 3504 (i) [“Nothing in this section waives the sovereign immunity of an Indian tribe.”]) Further, Congress has abrogated tribal immunity in targeted circumstances involving disputes over property. For example, the Indian Depredation Act authorizes suits against tribes that seized or destroyed property without just cause or provocation. (See Act of Mar. 3, 1891, ch. 538, 26 Stat. 851 ; see also Hamilton v. United States (1907) 42 Ct.Cl. 282 , 287 [dismissing case for lack of jurisdiction because Indian Depredation Act did not authorize suit where tribe took claimant’s real property pursuant to tribal law].) A 1958 statute waives tribal immunity and authorized the Hopi or Navajo Tribes to “commence or defend” a quiet title action against one another or any other tribe with an interest in specified tribal lands that had been the subject of a long-running dispute. (See Act of July 22, 1958, Pub.L. No. 85-547, 72 Stat. 403 ; Hamilton v. Nakai (9th Cir. 1971) 453 F.2d 152 , 158-159 [Indian tribes enjoyed sovereign immunity in quiet title suit absent waiver of immunity in Pub.L. No. 85-547]; see also Act of December 22, 1974, Pub.L. No. 93-531, § 8(a), 88 Stat. 1712 , 1715 [either the Navajo or Hopi “tribe . . . is . . . hereby authorized to 15 commence or defend . . . an action against the other tribe and any other tribe . . ., for the purpose of . . . quieting title” to specified lands].) This history weighs strongly in favor of deferring to Congress to weigh the relevant policy concerns of an immovable property rule in light of the government’s solemn obligations to tribes, the importance of tribal land acquisition in federal policy, and Congress’s practice of selectively addressing tribal immunity issues in property disputes. c. Finally, the facts of this case make it a poor vehicle for extending the immovable property rule to tribes. As far as property disputes go, this is something of a non-event. We do not discount the public’s interest in coastal access. But when considering adopting a common law rule that would broadly abrogate tribal immunity in a wide variety of property disputes, it is worth noting that Self and Lindquist do not claim an ownership interest in the property. They allege no injury. They are attempting to establish a public easement for coastal access based on their concern that, sometime after the federal government takes the property into trust, the Tribe might interfere with access. The concern is speculative. And, as this case illustrates, Congress has created a detailed process for protecting public interests such as coastal access. (See, e.g., 16 U.S.C. § 1456 (c).) California worked with the Bureau and the Tribe in that process. The state secured assurances from the Tribe to preserve coastal access. It determined that access is adequately protected, and it has remedies if there are problems in the future. 16  We have considered Self and Lindquist’s remaining arguments and find them to be without merit.3 DISPOSITION The judgment is affirmed. 3We are not persuaded by the Tribe’s argument, embraced by our colleague, that federal law preempts state quiet title actions. It is not enough that such actions could complicate the federal trust process. (See Virginia Uranium, Inc. v. Warren (2019) __ U.S. __, __, 139 S.Ct. 1894 , 1901.) The Tribe points to no constitutional text or federal statute that displaces or conflicts with state law. (Ibid.) 17  _______________________ BURNS, J. I concur: ____________________________ SIMONS, ACTING P.J. A158632 18 Reardon, J., Concurring. I concur in the judgment and write to outline a narrow, but important, distinction in my reasoning which reaches the same result as does the majority. In essence, the question undergirding this litigation is whether tribal sovereign immunity to litigation, as originally understood, includes an exception for the litigation of disputes over title to real (immovable) property or not. My view is that it does contain such an exception, which Congress may but has not eliminated. The majority reasons that it does not contain such an exception, though Congress could but has not added one.1 Nonetheless, we agree on the importance of the tribal interests involved and the federal government’s manifest policy to encourage the expansion of tribal property interests and, thereby, tribal self-sufficiency. Further, we agree that substantial deference is owed congressional action in this area. However, I believe that, once a tribe petitions to bring land within federal trust, the nuanced scheme created by Congress for the consideration of such petitions preempts this litigation. By different routes, we reach the same result: plaintiffs’ action was properly dismissed by the trial court. Does the doctrine of tribal sovereign immunity act as a bar to a state court action to imply an easement over nonreservation real property owned by an Indian tribe? The plaintiffs, seeking to impose The majority cites to instances in which Congress has reinforced 1 the notion of tribal sovereign immunity. (Maj. opn. ante, at pp. 12–16.) However, none of these pertain to nontrust land owned by a tribe within the territorial limits of another sovereign, as presented by these facts. 1 the easement on behalf of the public in general, would have us answer this question in the negative. They argue that, whatever the provenance and scope of tribal sovereign immunity, it does not pertain to immovable property. Consequently, they contend the doctrine does not bar an in rem action to impose an easement on property within the state of California. The “immovable property exception” to state sovereign immunity was, in essence, recognized by the United States Supreme Court in Georgia v. Chattanooga (1924) 264 U.S. 472 , 480. (Upper Skagit Indian Tribe v. Lundgren (2018) __U.S.__ [ 138 S.Ct. 1649 , 1660] (dis. opn. of Thomas, J., joined by Alito, J.) (Upper Skagit).) The immovable property exception to foreign nation sovereign immunity has been codified by Congress in the Foreign Sovereign Immunities Act of 1976 (FSIA). ( 28 U.S.C. § 1605 (a)(4); Permanent Mission of India to the UN v. City of New York (2007) 551 U.S. 193 , 200 [FSIA codified the “ ‘pre- existing’ ” immovable property exception to sovereign immunity].) However, recently, the high court declined to decide whether such an exception exists as to tribal sovereign immunity, instead remanding to the state court of Washington for determination of that issue in the first instance. (Upper Skagit, at pp. __ [138 S.Ct. at pp. 1653–1654].) Justice Thomas dissented from the majority’s determination not to rule on the question. (Upper Skagit, supra, __U.S.__ at pp.__ [138 S.Ct. at pp. 1656–1657].) He then went on, at length, to explain why he believed the immovable property exception applied to tribal sovereign immunity, as it does to other types of immunity. (Id. at pp. __ [138 S.Ct. at pp. 1657–1663].) His reasoning makes sense, and I adopt it here without full recitation. 2  Suffice to say, when one sovereign owns land of another sovereign, the second sovereign generally retains the authority to adjudicate disputes respecting that land, at least with regard to questions like the one before us over title. (Upper Skagit, supra, __U.S.__ at p. __ [138 S.Ct. at p. 1662] [“ ‘the title to, and the disposition of real property, must be exclusively subject to the laws of the country where it is situated’ ”].) Thus, the second sovereign’s authority over issues of title to land within its boundaries supersedes the first sovereign’s privilege to preclude a judicial challenge to the fact and scope of its ownership of that land.2 Quite obviously, the tribe’s assertion of sovereign immunity to suit would operate to undermine the very foundation of the state’s sovereignty. Congress could endorse such a result, but it has not, either explicitly or implicitly. The federal Constitution does not speak to Indian tribal immunity. (See Kiowa Tribe of Oklahoma v. Manufacturing Techs. (1998) 523 U.S. 751 , 759.) Thus, whether its inherent scope is derived from common law or natural law, it does not derive from the Constitution. Congress with its plenary authority over Indian affairs could modify its scope and could presumably extend tribal immunity to immovable property. (Michigan v. Bay Mills Indian Community (2014) 572 U.S. 782 , 788.) That decision would be a political one, necessarily accounting for the interests of the federal government, the tribes and 2 As noted by the majority, tribes are different from states and foreign nations, and the scope of their sovereign immunity is not necessarily the same. Whether this is a principle of limitation or aggrandizement is not clear. That is, is tribal sovereign immunity inherently greater or less than that afforded to states and foreign nations? The answer may well be neither, just different. 3 the states. Congress has not done so. However, it has done something strikingly similar that, I believe, leads to the same result. Pursuant to the Indian Reorganization Act of 1934 ( 25 U.S.C. § 5108 ), “The Secretary of the Interior is . . . authorized . . . to acquire . . . any interest in lands . . . for the purpose of providing land for Indians. [¶] . . . [¶] Title to any lands or rights acquired . . . shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.” Such acquisitions are implemented according to 25 Code of Federal Regulations part 151.1 et seq. (2021), including a written request for approval of acquisition by the tribe ( 25 C.F.R. § 151.9 (2021)), and notification to the state and local governments affected of the request with an opportunity to respond ( 25 C.F.R. § 151.10 (2021)). In evaluating requests, the Secretary of the Interior must consider, inter alia, the need of the tribe for additional land; the purposes for which the land will be used; if the land will be used for business purposes, the anticipated economic benefits; the location of the land relative to state boundaries and the tribe’s reservation boundaries; the impact on state and local governments of the removal of the land from regulatory jurisdiction and tax rolls; and (importantly here) jurisdictional problems and potential conflicts of land use which may arise. ( 25 C.F.R. §§ 151.10 –151.11 (2021).) The decision to grant or deny the request is subject to judicial and, in some instances, administrative review. ( 25 C.F.R. § 151.12 (2021).) Also, before approval, the Secretary of the Interior shall notify the applicant of any liens, encumbrances, or infirmities in title and may require their 4 elimination before approval, but shall require their removal if they render title to the land unmarketable. ( 25 C.F.R. § 151.13 (b) (2021).) As noted in the majority opinion, where, as here, coastal land is involved, the Federal Coastal Zone Management Act of 1972 provides an additional layer of state input and public participation. ( 16 U.S.C. § 1456 , et seq.) I need not repeat that thorough explication. Suffice to say, the federal statutory construct is thorough and intricately balances various interests—federal, state, tribal and public. It would seem contrary to that construct, once a tribe petitions to bring land within the trust, to permit the tribe to be subjected to all manner of state lawsuits relative to the land, at least as to questions of title. Indeed, plaintiffs now seek to impose an encumbrance on the land—an encumbrance that could impede the granting of the tribe’s petition. As Justice O’Connor wrote: “Our cases reveal a ‘ “trend . . . away from the idea of inherent Indian sovereignty as a[n independent] bar to state jurisdiction and toward reliance on federal pre-emption.” ’ [Citations.] Yet considerations of tribal sovereignty, and the federal interests in promoting Indian self-governance and autonomy, if not of themselves sufficient to ‘pre-empt’ state regulation, nevertheless form an important backdrop against which the applicable treaties and federal statutes must be read. [Citations.] Accordingly, we have formulated a comprehensive pre-emption inquiry in the Indian law context which examines not only the congressional plan, but also ‘the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law.’ ” (Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering (1986) 476 U.S. 877 , 5 884; Agua Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239 , 248 [noting this trend].) Here, the property in question was purchased by the tribe in 2000. However, the purported public access supporting the implication of an easement is alleged to have existed since at least 1967. Not until the tribe petitioned to have the land brought into trust did plaintiffs seek the declaration of an easement. I have noted the strong state interest in adjudicating issues of title to land within the state. Indeed, the state courts provide a forum for these plaintiffs, or anyone else, to bring an action to quiet title in an easement on the property. However, once the tribe petitions to bring the land into trust, the tribe’s interest in the acquisition of land—an interest shared by the federal government—comes to the fore. At that juncture, Congress has established a structure for the assertion and balancing of these various interests as it concerns questions of title. This seems to be a classic case of federal field preemption, precluding plaintiffs’ suit.3 Albeit, the field in question is a narrow one: where a tribe has petitioned to bring land within the federal trust. I recognize that Congress did not explicitly preempt state court actions such as this. But, preemption need not be explicit, as long as congressional intent is clear. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at pp. 936–940.) Congress has provided an alternative forum for plaintiffs, such as these, to be heard. That is, even without a declared easement, the plaintiffs’ interest in continued 3Alternatively, the specific facts here raise the possibility of obstacle preemption. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929 , 936–940.) 6 access will be considered. The statutory scheme for tribal petitions contemplates the possibility of existing encumbrances. However, to allow any number of potential parties to seek to impose encumbrances on the subject land once the petitioning process has begun is, to my mind, clearly against congressional intent. On that basis, I would affirm the ruling below. _________________________ Reardon, J.* *Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 7 Humboldt County Superior Court, Case No. DR190353 Trial Judge: The Honorable Kelly L. Neel J. Bryce Kenny for Plaintiffs and Appellants Hobbs, Straus, Dean & Walker, Timothy C. Seward, for Respondent. 8

2021-01-27 00:02:22.400005+00

http://www.courts.ca.gov/opinions/documents/A157283.PDF

Filed 1/26/21 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A157283 v. MALIK WILLIAMS, (Solano County Defendant and Appellant. Super. Ct. No. VCR-227914) Defendant Malik Williams appeals from a judgment after a jury found him guilty of felony burglary of a home. The entire case against defendant was based upon latent fingerprints found at the crime scene and identified as a match to those of defendant. No witness identified defendant, there was no other evidence of defendant having been on the scene, defendant was not found to own a car consistent with the getaway car, and defendant was never found to be in possession or otherwise connected with items stolen from the home. Defendant contends that the trial court committed prejudicial misconduct during the questioning of the prosecution’s fingerprint expert witness by repeatedly interrupting the defense’s cross-examination to cut off responses or ask its own questions and then, after redirect, asking a series of questions implying that the defense could have, but failed to, hire its own expert. For the reasons set forth below, we conclude that the trial court improperly aligned itself with the prosecutor in the minds of the jury by the 1 manner and content of his questioning of the fingerprint expert, and that the questioning constituted prejudicial misconduct that warrants reversal. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with one count of felony burglary under Penal Code section 459.1 The information alleged that defendant had entered “an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by M.T., with the intent to commit larceny and any felony.”2 Defendant was represented at trial by an assistant public defender. M.T. testified at trial as follows. M.T. drove home from work on March 30, 2016 to find the back door of his house open and two men walking in the alley next to his house. He pursued the men in his vehicle but lost sight of them as they ran and got into a red Mustang. M.T. identified them as two black men, but “didn’t really get a great look at them” and could only see their silhouettes as the sun was in his face. He called the police and then returned home to surveil the damage – jewelry, a cash box, and video game equipment had been stolen. M.T. had locked the back door when leaving his house, and concluded that the point of entry was his window as it had been pried open and the window lock was broken. The police officer who responded to the scene testified as follows. He was able to lift fingerprints from the broken window and booked them into evidence. A fingerprint analyst then compared those latent fingerprints with defendant’s fingerprints taken from an Automated Fingerprint Identification System (AFIS) report generated when defendant was arrested in 2014. The AFIS report was admitted into evidence. The officer testified that 1Unless otherwise indicated, all further section references will be to the Penal Code. 2Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in opinions,” we refer to the victim by his initials only. 2 defendant’s address as listed in the AFIS report was 0.3 miles from M.T.’s house. There was no evidence presented as to whether that was defendant’s address on or about the time of the burglary. Thereafter, the officer showed M.T. a photograph of defendant, but M.T. could not identify defendant as one of the two men he saw in the alley. Defendant’s home was not searched for the stolen property, and none of the property was otherwise located in defendant’s possession. Finally, defendant did not have a red Mustang registered in his name. In sum, there was no evidence tying defendant to the burglary other than the fingerprint evidence. A. Evidence Code Section 402 Hearing One of the prosecution’s proposed trial witnesses was Department of Justice (DOJ) latent print analyst Vivian Zhang, who was to testify regarding her comparison of the latent fingerprints recovered from the broken window to defendant’s known fingerprints. Defendant moved to preclude or limit the proposed testimony on the grounds that fingerprint analysis does not pass muster under Frye v. United States (D.C. Cir. 1923) 293 F. 1013 and People v. Kelly (1976) 17 Cal.3d 24 , and requested a hearing under Evidence Code section 402 (402 hearing).3 At the 402 hearing, and before Zhang testified, the trial judge expressed dissatisfaction regarding defense counsel’s failure to retain an expert witness: “So, we are here on the morning of trial, you’re asserting this, and you’re not backing it up with the traditional means by which attorneys come in and present evidence on which the Court can make such 3 Evidence Code section 402 provides that a court may hear and determine a question as to the admissibility of evidence out of the presence of the jury. 3 findings and that is expert testimony.” The judge continued: “If she’s going to offer bad science, that’s why you bring in scientists to counter it. But apparently you’re not doing that.” After Zhang testified regarding her analysis and her understanding of the error rates associated with fingerprint analysis, the trial judge denied defendant’s motion to exclude or limit her testimony at trial. In so doing, the trial judge shared its views that the Public Defender’s office was providing inadequate representation as a matter of course: “[T]his is just not how you should operate here. I am struggling with whether or not -- I have complained in this courtroom several times over the last month whether or not defendants are getting fair trials or not because of a lack on the part of your office to adequately resource cases. I’m struggling here now because it seems to me that everything that you are trying to do here, if you are, is one of two things. [¶] One, either you’re inadequately resourced and didn’t spend the money to hire your own expert [to] flesh these things out. Or secondly is just smoke and mirrors on day two of trial. At this point I’m not finding you’re going anywhere near a basis for me to preclude this witness from testifying or to limit her testimony.” B. Trial Testimony of Fingerprint Expert Zhang Zhang testified on direct examination that she received the latent fingerprints lifted from the broken window, scanned them into her computer system, and then conducted a search to compare the latent fingerprints to known fingerprints using the automatic latent print system (ALPS) database. She set the parameters of her search to yield 100 results, which returned results automatically ranked by strength of the comparison; defendant’s known fingerprints were ranked as the first result. She then analyzed the latent fingerprints visually with a magnifying glass, compared them with 4 defendant’s known fingerprints, and determined there were sufficient points of commonality to conclude they were a match. There were sixteen points of commonality, but only eight were needed to make a match under DOJ policy. Zhang also testified that she was not aware of defendant’s address when she conducted her comparison of the fingerprints. She did not know the error rate associated with fingerprint analysis, but stated that she had never made an erroneous identification. She further stated that her conclusions were always verified by a second examiner. On cross-examination, Zhang confirmed she only reviewed defendant’s known fingerprints, and not any of the other 99 results from the database search. The trial judge interjected to ask whether the system keeps a record of those other 99 results, and Zhang replied it is kept electronically only for three days; she had not printed it out. When defense counsel asked if she had even opened the files of the other results, Zhang did not have the chance to answer before the trial judge responded: “She has said a couple different ways now she thought they got a positive finding on the first one and she stopped looking at the other images after that.” Zhang testified, in response to defense counsel’s questions, that her written report did not document her visual comparison of the fingerprints, but rather only her final conclusion that the fingerprints contained sufficient points of commonality. When asked how a second evaluator could verify her conclusion if only the conclusion, and not her actual analysis, was in the report, the trial judge made a sua sponte objection: “That’s argumentative and speculative. She didn’t document it.” When Zhang was questioned about not documenting the reasoning for her conclusions, the trial judge responded: “That was argumentative.” After Zhang testified that the second evaluator does not see the commonality markers that she identifies to make a 5 fingerprint match, the trial judge asked Zhang: “So the person who verifies the fingerprint, do they look at the fingerprint?” When Zhang answered yes, the trial judge asked: “They do the same thing you do?” When Zhang answered yes again, the trial judge stated: “So both of you looking at the fingerprint, that is the primary basis for both of you to opine whether or not there’s a match?” Zhang then testified, in response to questions from defense counsel, that the second evaluator sees her conclusion before verifying that conclusion; in other words, the second evaluation is not blind. The trial judge again interjected, this time to ask Zhang: “But everyone’s looking at the fingerprint? You look at a fingerprint, you make an opinion?” Zhang answered yes. Zhang was questioned by defense counsel regarding whether there were any studies regarding points of commonality between fingerprints. She was unaware of any study that determined how many sets of fingerprints have eight points in common, and was then asked if she knew whether any two people’s fingerprints share eight points in common. The trial judge made a sua sponte objection: “That was asked and answered.” That question, however, had not actually been asked and answered. Zhang was questioned by defense counsel regarding several reports and studies on the error rate associated with fingerprint analysis. She was not familiar with some of the reports. Defense counsel attempted to refresh her recollection regarding a 2012 report by beginning his question with “This was comprised of a committee including . . .” at which point the trial judge interjected: “Not like that you don’t. Do you want to ask her a specific question, don’t just start describing a report.” When asked about another 2012 report, the trial judge stated: “If you want to show her something and see if that refreshes her recollection, go ahead and do that.” When defense 6 counsel began his question about a 2016 report by reading the title of the report and adding “that says several authorities . . .” the trial judge interjected: “Hold on. Ask that part of the question. Did you read the report?” The trial court then excused the jury for a recess, and told defense counsel that he was “repeatedly [] violating the Rules of Evidence in an effort to publish information to the jury that you otherwise may not have the ability to do so.” The trial judge stated that it was “going to start being even brisker in stomping you when you do that” and warned that “[i]f you keep throwing certain pitches, I’m going to start calling them in a way that is not going to be to the benefit of you or your client.” When the jury returned, defense counsel questioned Zhang regarding an FBI study. She testified that she was aware of its conclusion that the false positive rate for fingerprint identification was 1 in 306. She also testified regarding another study concluding that the error rate was 2.5%. Zhang was also questioned by defense counsel regarding an error that she had made in the illustration she had prepared for trial of her fingerprint analysis, which identified an additional, and incorrect, point of commonality between the latent fingerprints and defendant’s fingerprints. Defense counsel asked whether the verification by the second examiner could have contained a similar error. The trial judge made a sua sponte objection: “That’s been asked and answered.” It had not, however, been asked and answered. On redirect, Zhang explained that DOJ has safeguards in effect to prevent or guard against fingerprint identification errors. Specifically, her conclusions are verified by a second examiner, and then the case is sent to a supervisor for a “technical and administrative” review before being finalized. She also explained that her analysis involved only a visual comparison of the 7 fingerprints through a magnifying glass, and she did not make any physical marking of the points of comparison on the fingerprints. After redirect was concluded, and with no questions having been submitted by the jury, the trial judge asked Zhang the following questions: “THE COURT: Let me ask you, ma’am, is there anything about the process of testing fingerprints that degrades them? “THE WITNESS: Can you rephrase? “THE COURT: You took these two prints and you evaluated them. “THE WITNESS: Yes, under a glass. “THE COURT: Is there anything about that that destroyed or degraded the image? “THE WITNESS: No. “THE COURT: So, if I wanted to do the same thing, if I wanted to take these two fingerprints and compare them myself, if I wanted to hire someone to do it, they could – they can review the very same thing that you reviewed, correct? “THE WITNESS: Yes.” On recross, Zhang testified that she did not hold any certification associated with her position as a latent print analyst. C. Motion for Mistrial Defense counsel promptly moved for a mistrial based on the trial court’s questions, arguing that “[t]he Court was implying as if the defense had an obligation, maybe it should have compared the prints of [defendant] with an expert of their own, and I think that is misleading to the jury and I think it’s denying my client due process of law and implying as though there’s something for the defense to prove, when there’s not.” In other words, the 8 trial judge told the jury “that an expert could have been hired to compare the prints and implied that it wasn’t.” The trial judge responded: “I didn’t say by whom. I said it could have been.” The only parties to the case were the prosecution and the defense. The trial judge stated: “So you don’t think [the prosecutor] could get up in his closing argument tomorrow and say something to the effect of, you know we didn’t hear but there may be hundreds or thousands of fingerprint experts who could have looked at this and would come in and say there’s something wrong about this identification and you didn’t hear from one of them.” It continued: “I think you ought to be prepared for that argument.” The trial court denied the motion without prejudice, indicating to defense counsel that it would revisit the motion the next morning “if you can find a case that shows that it is prejudicial to inquire as to whether or not an item could have been retested.” The next morning, defense counsel stated that he could not find a case where “the Court, on their own purview, interjected the idea that the defense could have called a witness and didn’t call a witness and suggested to the prosecution that they make that argument.” The trial judge responded: “I didn’t suggest to them. I said what are you going to do if they make the argument.” Defense counsel argued that the trial court’s initial question to the fingerprint expert was improper, as it is not a “scientific probability” that “putting a magnifying glass over the fingerprint” would “damage the integrity of the fingerprint in any way.” The trial judge responded: “First of all, I did not know that because neither of you asked those questions very clearly. But anyway . . . I was a defense lawyer for 20-something years. A, you’re free to come at me anyway that you like to, but I understand the practice of defense. I understand working the rev [sic] like you’re working right now. I 9 understand all of these things. As to this particular issue, the record was incredibly unclear about the state of that exhibit . . . .” Defense counsel then argued that the trial court’s follow up question to the fingerprint expert implied the defense had an obligation to call a fingerprint witness, knowing full well from the 402 hearing that the defense was not going to call such a witness, and thus appeared to be “taking issue with the trial tactics of counsel” and expressing bias by “impugning the defense preparation of the case,” lumping it together with some other activity or conduct from the Public Defender’s office. The trial judge responded that there was “some truth” to that issue. The trial judge stated: “I made comments early about a lack of resources of your office. That’s what I said. I said your office was not resourced. Your former boss, Mr. Najara left about a month ago. We could have a detailed discussion as to that, as to why the main Public Defender is now leaving now. As to why multiple grand juries are investigating your office. We could have a discussion about all of those things. But it’s a side show to what my comment was. My comment was about resources that you had not resourced these things. It didn’t come up in the context of you executing a strategy to not hire a witness. It came up in the context, when I specifically asked you what were you going to do when you tried to impeach this witness with articles and she told you that she didn’t remember them, what were you going to do about that. I specifically warned you in advance that there was a risk of that happening because you had not hired an expert to put that expert on the stand to have them explain to the jury the risks and nature associated with fingerprint things you decided to do it, not hire investigating resources on this thing ask taking a gamble that you were going 10 to be able to fully impeach the witness with your cross-examination of the those [sic] articles.” The trial judge continued: “As to my comments about the lack of resourcing of your office and your strategy to go forward, the record perfectly reflects, in advance, I warned you that there was a risk of it happening. It did happen exactly as I predicted and exactly as I warned you and that’s what lead to things yesterday. [¶] Those comments had nothing to do with any efforts to undermine your choice of calling experts. That was an observation about the risks posed when you don’t invest the resources or take the time to present these issues on your own.” The motion for mistrial was denied. D. Relevant Jury Instructions The trial court instructed the jury, using CALCRIM No. 220, that the presumption of innocence “requires the People to prove a defendant guilty beyond a reasonable doubt.” It instructed the jury, pursuant to CALCRIM No. 222, that “[o]nly the witnesses answers are evidence. The attorneys questions are significant only if they help you to understand the witness’s answer and don’t assume that something is true just because an attorney, or myself, asked a question that suggested it was true.” The trial court also provided CALCRIM No. 3550: “Again, it has not been my role to tell you what your verdict should be. Don’t take anything that I said or did during this trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” E. Closing Arguments In his closing argument, the prosecutor stated he had to “make some comments at this time about [defense counsel’s] cross of Ms. Zhang” and went on to say the defense “presented nothing and there is nothing doubting the 11 validity of Ms. Zhang’s analysis in this case.” Defense counsel argued that the “[o]ther thing I want to point out to you is that the defense has no obligation to prove anything at all. And you’re going to read jury instruction 220. The judge read it to [sic] as well. It has to do with reasonable doubt.” He later continued: “I don’t want you to be swayed by the Court or the District Attorney if they say anything to you that seems to imply that [defendant] has something to prove in this case. He does not. The defense does not have to prove or disprove anything in this case.” After defense counsel’s closing, the trial judge stated to the jury: “Let me point something out to you. I am going to give you an instruction, I’m going to tell you then what I’m going to tell you now, that is what I think about things does not matter. That’s why you’re here making the big bucks. You decide what the facts are in this case. You should not speculate about anything that I think about the facts or about this case.” It continued: “Now, having said that, my questions are just like anyone else’s questions. The only relevance is to the extent they help you understand the answers. Having said that, everything else I say you are governed by.” On rebuttal, the prosecutor focused on the lack of a defense expert witness: “defendant is under no obligation to establish their innocence in a criminal case. . . . While it’s true that defendant does not have the burden, the prints are still in evidence. They’re in evidence right now. Testimony of Ms. Zhang is that nothing during the testing process destroyed them . . . . Sitting there in evidence, ready to be examined by somebody else, if somebody wanted to. The defense, who is free to subpoena other experts to take the witness stand, look at those fingerprints say no Ms. Zhang was wrong, that would be direct evidence that Ms. Zhang, in this case, was wrong. They didn’t do it. The reason they didn’t do that is because that expert 12 doesn’t exist and Ms. Zhang is correct that those are the defendant’s prints on that house.” The prosecutor continued: “I think you would have to be incredibly naive to believe that if there’s an expert out there to come in here and testify that those, in fact, are not the defendant’s prints, that Ms. Zhang is incorrect and that her verifier is incorrect and that it is a false positive . . . . Don’t you think you would have heard from somebody to testify to that? You didn’t. Instead [defense counsel] kept grasping at straws and claiming that other analysts in other jurisdictions have been wrong before so there this analyst is wrong here.” F. Post-Trial Motions Defendant filed a motion to disclose juror contact information in order to “investigate a new trial motion” based on the trial court’s questioning of the fingerprint expert witness. It was denied. Defendant filed a request for evidentiary hearing pursuant to Evidence Code section 1150, to directly question jurors about a perceived obligation of the defense to present evidence or application of an improper burden of proof. It was denied. Defendant then filed a motion for new trial, arguing that the trial court erred when it questioned the fingerprint expert witness, and violated defendant’s right to a fair trial, due process, and confrontation. It was likewise denied. G. Judgment The trial court entered judgment, suspended imposition of sentence and placed defendant on five years of probation, conditioned on defendant serving one year in county jail, and authorized defendant to serve the balance of his sentence in an alternative sentencing program. Defendant timely appealed. 13  DISCUSSION Defendant argues his conviction must be reversed because, among other things, the trial court committed prejudicial error when it repeatedly interrupted the cross-examination of Zhang and then asked its own series of questions to Zhang about the degradation of the fingerprints, and the possibility that someone else could have been hired to review the fingerprints just as Zhang had done. He contends that the court’s participation in this examination improperly bolstered the prosecution’s case and “laid the foundation for the prosecution to make a failure to retest argument.” We review claims of judicial misconduct under the de novo standard and on the basis of the entire record. (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384 , 391–392; People v. Peoples (2016) 62 Cal.4th 718 , 789.) The initial step of our inquiry is to determine whether the trial court’s examination of a witness constituted judicial misconduct. (People v. Perkins (2003) 109 Cal.App.4th 1562 , 1567.) If we determine there was misconduct, we then assess whether the misconduct prejudiced defendant such that reversal is warranted. (Id.; People v. Harris (2005) 37 Cal.4th 310 , 351.) A. Judicial Misconduct In ascertaining whether or not the trial court’s participation in the questioning of the fingerprint expert constituted judicial misconduct, we begin with the general legal principles governing a trial judge’s role in the examination of witnesses. Evidence Code section 775 provides that a trial court “may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party.” This ability is consistent with “the right and the duty of a 14 judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence.” (People v. Corrigan (1957) 48 Cal.2d 551 , 559.) While the trial court can question a witness, it is “ordinarily better practice for a trial judge to let counsel develop the case and to undertake the examination of witnesses only when it appears that relevant and material testimony will not be elicited by counsel.” (People v. Rigney (1961) 55 Cal.2d 236 , 243 (Rigney).) The danger posed by the trial court’s questioning of a witness is readily apparent: “Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. For this reason, and too strong emphasis cannot be laid on the admonition, a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant. It is unnecessary to cite the cases bearing on this subject. It is a fundamental principle underlying our jurisprudence.” (People v. Mahoney (1927) 201 Cal. 618 , 626– 627.) Accordingly, a trial court must avoid asking questions of a witness in a manner that “align[s] himself with the prosecutor in the minds of the jury.” (Rigney, supra, 55 Cal.2d at pp. 241–242; People v. Santana (2000) 80 Cal.App.4th 1194 , 1206–1207.) Balancing the trial court’s ability to question witnesses with the inherent danger of doing so, it is appropriate for a trial judge to participate in the examination of a witness “ ‘ whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.’ ” (People v. Carlucci (1979) 23 Cal.3d 249 , 256 (Carlucci).) 15  None of these circumstances is applicable to the trial judge’s questions regarding quality of the fingerprints or ability to hire an expert. The questions did not aid in “preventing misunderstanding” or “clarifying the testimony,” as there was no prior testimony that could have been misunderstood to suggest potential degradation of the fingerprints or lack of availability for re-testing – that was simply not a live issue in the case. (Carlucci, supra, 23 Cal.3d at p. 256.) Similarly, the questions did not aid in “eliciting the truth” or “covering omissions,” as there was no testimony that brought into question the quality or availability of the fingerprint evidence. (Ibid.) Zhang testified that she scanned the latent fingerprints into a computer system, and then reviewed the fingerprints visually with a magnifying glass. She testified that she did not physically mark the fingerprints. Nothing in her testimony suggested that the latent fingerprints were no longer available or were degraded by that process. Finally, while the facts elicited from the trial judge’s questions may have been potentially “material,” they were not material in this case given that the quality of the fingerprint evidence was not in dispute. (Ibid.) Not only did these questions fall outside the ambit of appropriate circumstances for examination by a trial court, but they also did not reflect an attempt by the court to “fairly” aid in eliciting testimony. (Carlucci, supra, 23 Cal.3d at p. 256; Rigney, supra, 55 Cal.2d at 244 [concluding that trial judge’s questioning of witnesses was not improper where they “fairly and impartially” brought out relevant and material testimony].) Here, the record shows that the questions regarding the quality of the fingerprints and ability to hire an expert were improper on their face. The trial judge asked its initial questions regarding potential degradation of the fingerprints in an apparent effort to lay the foundation for its ultimate question, whether 16 “someone” could be hired to do the same review of the fingerprints that Zhang had done. The trial judge’s reasoning that the question was proper because he “didn’t say by whom” another expert could be hired is utterly unpersuasive: other than defendant, there was no other party who could have hired an expert. The only import of the trial judge’s question was that defendant could have hired an expert, but did not do so. By asking these questions, defendant argues on appeal that the trial court deviated from judicial impartiality and improperly assumed the role of the prosecution to develop evidence on its behalf. The Attorney General does not directly respond in its briefing on appeal, instead arguing that the court’s questions were to “clarify” Zhang’s testimony that she performed a visual comparison and did not physically mark the fingerprints. On the motion for mistrial, the trial court similarly reasoned that its questions were proper because the record was “incredibly unclear” about the state of the fingerprint exhibit. Such statements are entirely inaccurate. As described above, there was no dispute as to the quality or availability of the fingerprints and thus there was no need to “clarify” any testimony. Even if there had been some clarification needed as to potential degradation of the fingerprints, the trial court’s final question regarding the hiring of another witness had no proper purpose. Instead, the question bolstered the testimony of Zhang and highlighted defendant’s failure to hire an expert without having another, proper, purpose. In so doing, the trial judge improperly “align[ed] himself with the prosecutor in the minds of the jury.” (Rigney, supra, 55 Cal.2d at pp. 241–242.) The trial judge’s participation in the cross-examination of Zhang likewise reflected this alignment. It interrupted the defense’s cross- examination at least a dozen times with its own questions and sua sponte 17 objections – in so doing, it bolstered the credibility of Zhang by asking follow up questions that appeared to minimize potential reliability problems with Zhang’s written report and the second examiner verification, and did not allow relevant and appropriate cross-examination on the scientific reports and studies regarding fingerprint identification errors by cutting off defense counsel, despite no objection by the prosecution, and not allowing Zhang to answer the questions. While any particular interruption or question, standing alone, may not constitute judicial misconduct (People v. Woodruff (2018) 5 Cal.5th 697 , 772), they together “reveal[] the extent to which the trial court had aligned itself with the prosecution in the trial of this case” (Santana, supra, 80 Cal.App.4th at p. 1209). The trial judge’s comments at the 402 and motion for mistrial hearings confirm this conclusion. At the 402 hearing, the trial court repeatedly criticized defense counsel for failing to hire an expert and expressed its frustration with the Public Defender’s office for, in its view, inadequately resourcing the defense of not only the instant case but numerous cases. At the motion for mistrial, the trial court stated that defense counsel “ought to be prepared” for a closing argument from the prosecution regarding the defense’s failure to hire an expert to retest the fingerprints: “I warned you that there was a risk of it happening. It did happen exactly as I predicted and exactly as I warned you and that’s what lead to things yesterday.” But the reason that the testimony played out “exactly” as the trial court predicted was because the trial court made it so by usurping the role of the prosecutor and eliciting testimony that achieved its “predicted” result. Rather than being simple error, the trial judge’s involvement in the questioning of the expert witness and commentary at hearings bear all the hallmarks of improper judicial demeanor and appear to be born of the judge’s 18 disapproval of the Public Defender’s office. (See Santana, supra, 80 Cal.App.4th at p. 1207 [concluding that the trial court’s questioning “appears to have been motivated by a desire to assist the prosecution’s case”].) In fact, at the motion for mistrial defense counsel noted the trial court appeared to be “taking issue with the trial tactics of counsel” and expressing bias by “impugning the defense preparation of the case,” lumping it together with some other activity or conduct from the Public Defender’s Office. The trial judge responded that there was “some truth” to that and went on to again say how, in its view, the public defender’s office was not properly resourcing cases and had numerous issues: “I made comments early about a lack of resources of your office. . . . Your former boss, Mr. Najara left about a month ago. We could have a detailed discussion as to that, as to why the main Public Defender is now leaving now. As to why multiple grand juries are investigating your office. We could have a discussion about all of those things.” None of these matters, whether the departure of the Public Defender or “multiple grand juries” or the decision not to hire a defense expert, had any relevance to the question before the court, which was whether his questioning of the fingerprint expert was improper. In sum, we conclude the trial judge’s participation in the questioning of the fingerprint expert constituted judicial misconduct. Having reached that conclusion, we turn next to the question of whether the misconduct was prejudicial. B. Prejudice When a trial court commits judicial misconduct, we apply the standard set forth in People v. Watson (1956) 46 Cal.2d 818 , 836 to determine whether the misconduct was prejudicial. (Harris, supra, 37 Cal.4th at p. 351.) Under this standard, we must ask whether it is “reasonably probable that the jury 19 would have reached a different guilt verdict had the court refrained from asking these questions.” (Id. at pp. 350-351.) Any doubt as to whether or not prejudice has occurred is to be resolved in favor of the defendant. (People v. Campbell (1958) 162 Cal.App.2d 776 , 787–788.) We find People v. Robinson (1960) 179 Cal.App.2d 624 (Robinson) instructive. In Robinson, the appellate court determined that the trial court had committed prejudicial judicial misconduct by unnecessarily participating in the examination and cross-examination of witnesses, and taking upon itself to develop testimony helpful to the prosecution. (Id. at p. 633.) While the evidence was manifestly sufficient to justify the verdict, “it was not so strong or conclusive as to have precluded a reasonable doubt in the minds of the jurors as to defendant’s guilt.” (Id. at p. 636.) “The case was essentially one that required appraisal of the credibility of the witnesses.” (Ibid.) Thus, Robinson concluded that the trial court’s questioning of witnesses was prejudicial, as it affected the jury’s appraisal and tipped the scales in favor of the prosecution. (Id. at p. 637.) So too here. The fingerprint evidence was the primary evidence in this case connecting defendant to the burglary. The only other evidence was M.T.’s general description of the men he saw in the alley as two black men, and the geographical proximity of the address listed in the AFIS report to the location of M.T.’s house. The evidence may have been sufficient to support the jury’s verdict, but it was not “so strong or conclusive” as to have precluded reasonable doubt as to defendant’s guilt. (Robinson, supra, 179 Cal.App.2d at p. 636.) Accordingly, this case turned on the jury’s assessment of the accuracy and reliability of the fingerprint analysis conducted by Zhang. While our courts have repeatedly found that fingerprint evidence, alone, is sufficient to 20 support a burglary conviction (People v. Bailes (1982) 129 Cal.App.3d 265 , 282), the question before us is whether the trial court’s participation in the questioning of the fingerprint expert impacted the jurors’ consideration of the evidence such that it is reasonably probable that the jury would have reached a different verdict had the trial court refrained from asking these questions (Harris, supra, 37 Cal.4th at p. 351). Here, Zhang testified that she did not review any of the other 99 results from the ALPS database and did not save the results. She testified that defendant’s listed address from the AFIS report was available to her when she conducted her comparison, but that it was “not important” to her. She testified that there was no written record of her analysis, only her conclusion. She testified that she made an error in the illustration prepared for court, reflecting an additional point of commonality between the fingerprints that was incorrect. She testified that there is an error rate associated with fingerprint analysis, and that a study had concluded that error rate was 2.5%. The trial court skewed the jury’s consideration of this evidence by interrupting the cross-examination and by asking questions to elicit testimony that buttressed Zhang’s testimony and shifted the focus from potential reasonable doubt as to the accuracy or reliability of her conclusions to the import of defendant’s failure to hire an expert. On this record, and resolving any ambiguity in defendant’s favor, we conclude that the trial court’s questions were prejudicial. The trial court’s instructions to the jury that it “not speculate about anything that I think about the facts or about this case” and that the court’s questions were only relevant “to the extent they help you understand the answers” do not alter this conclusion. While we must assume that the jury followed its instructions (Harris, supra, 37 Cal.4th at p. 351), these instructions do not dispel the prejudice that was created by the trial court’s 21 questions. (See Santana, supra, 80 Cal.App.4th at p. 1207 [concluding that repeated admonitions not to take any cue from the trial court’s manner of questioning witnesses “could not dispel the inference, which appears on the face of the cold record, that the trial court found the People’s case against Santana to be strong and Santana’s evidence to be questionable, at best”].) The prejudice here does not stem from the jury speculating as to the court’s views or by treating the court’s questions as evidence. It stems from the substance of the testimony elicited by the trial court that carried the clear implication that defendant could have, but failed to, hire an expert. In sum, we conclude that the trial court’s participation in the questioning of the fingerprint expert witness constituted prejudicial judicial misconduct requiring reversal of the judgment.4 DISPOSITION Judgment is reversed. 4 In light of our reversal, we need not and do not address defendant’s other contentions that the trial court committed error through (1) extensive and unnecessary participation in the examination of witnesses; (2) disparaging and unequal treatment of defense counsel; (3) provision of strategic advice to the prosecution; (4) admission of fingerprint evidence; or (5) imposition of fines, fees, and assessments without prior determination of defendant’s ability to pay. 22  _________________________ Petrou, J. WE CONCUR: _________________________ Siggins, P.J. _________________________ Jackson, J. A157283/People v. Williams 23 Trial Court: Solano County Superior Court Trial Judge: Hon. Dan Healy Counsel: Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney general, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, John H. Deist, Deputy Attorney General, for Plaintiff and Respondent. First District Appellate Project, Jonathan Soglin, Lauren Dodge, and Deborah Rodriguez, for Defendant and Appellant. 24

2020-12-02 22:22:35.903329+00

http://www.tsc.state.tn.us/sites/default/files/kebedefasilopn.pdf

12/02/2020 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 6, 2020 Session FEDERAL NATIONAL MORTGAGE ASSOCIATION v. FASIL KEBEDE Appeal from the Circuit Court for Shelby County No. CT-004033-18 Yolanda R. Kight, Judge ___________________________________ No. W2019-00227-COA-R3-CV ___________________________________ The transferee of real property following a foreclosure sale filed a forcible entry and detainer action against the occupier. After the transferee prevailed in the general sessions court, the occupier appealed to circuit court. The transferee then filed a motion for summary judgment, which the trial court granted. Because the undisputed facts demonstrate that the transferee is entitled to judgment as a matter of law, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B. GOLDIN, and CARMA DENNIS MCGEE, JJ., joined. Paul A. Robinson, Jr., Memphis, Tennessee, for the appellant, Fasil Kebede. H. Keith Morrison, Fayetteville, Arkansas, and Jerry D. Morgan, Brentwood, Tennessee, for the appellee, Federal National Mortgage Association. MEMORANDUM OPINION1 1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case.  FACTUAL AND PROCEDURAL HISTORY This case was decided on summary judgment; as such, we take the following facts from the undisputed material facts found by the trial court. In 2008, Petitioner/Appellant Fasil Kebede (“Mr. Kebede”) executed a promissory note and a deed of trust on the property at issue (“the Forest Glade property” or “the subject property”). On June 2, 2011, the deed of trust was assigned to SunTrust Mortgage, Inc. (“SunTrust”). Mr. Kebede stopped making payments on the promissory note at least by July 2011. He then attempted to avoid foreclosure by filing a complaint against SunTrust (“Kebede I”) in the Shelby County Chancery Court (“the chancery court”) on July 14, 2011, alleging multiple claims, including breach of contract. SunTrust removed Kebede I to the United States District Court for the Western District of Tennessee (“the district court”) on August 15, 2011. The district court granted SunTrust’s motion to dismiss Kebede I on December 30, 2014. Mr. Kebede appealed the dismissal to the Sixth Circuit Court of Appeals, which affirmed the decision of the district court on September 2, 2015. In March 2016, Mr. Kebede filed a new complaint in the chancery court (“Kebede II”) seeking to enjoin the foreclosure sale. Kebede II was also removed to the district court, on April 7, 2016. The district court granted SunTrust’s motion to dismiss on September 27, 2016. Thereafter, SunTrust conducted a foreclosure sale on the Forest Glade property through its trustee on February 9, 2017. SunTrust was the highest bidder for the subject property, with a successful bid of $602,500.00. On February 21, 2017, a Substitute Trustee’s Deed was recorded in the office of the Shelby County Register of Deeds, which noted that SunTrust purchased the subject property at the foreclosure sale, but then conveyed its interest to Federal National Mortgage Association (“Fannie Mae”). Mr. Kebede then filed a third action against both SunTrust and Fannie Mae, in the chancery court (“Kebede III”) on May 5, 2017, seeking to set aside the foreclosure sale. Again, the case was removed to the district court. On June 11, 2018, the district court granted SunTrust and Fannie Mae’s motions for sanctions and to dismiss, finding no irregularities in the foreclosure sale and declining to restrain Fannie Mae from conducting detainer proceedings. In the meantime, on or about May 2017, Fannie Mae commenced a forcible entry and detainer action (“detainer action”) against Mr. Kebede in the Shelby County General Sessions Court (“the general sessions court”). Judgment was entered in favor of Fannie Mae, and a detainer warrant was issued on August 20, 2018. Mr. Kebede appealed to the Circuit Court of Shelby County (“the trial court”). On October 25, 2018, Fannie Mae filed a motion for summary judgment, statement of undisputed material facts, and a memorandum in the trial court. Attached to the -2- statement of undisputed materials facts were a number of documents, including the Deed of Trust signed by Mr. Kebede, the corporate assignment of the deed of trust, the district court’s orders in Kebede I, II, and III, the Sixth Circuit Court of Appeals opinion affirming Kebede I, and a Substitute Trustee’s Deed indicating that Mr. Kebede defaulted on the indebtedness on the Deed of Trust, that a foreclosure sale occurred, and that SunTrust’s interest in the property was sold and assigned to Fannie Mae. Mr. Kebede filed a response to Fannie Mae’s motion for summary judgment on December 11, 2018. Therein, Mr. Kebede stated that Fannie Mae’s statement of undisputed material facts “did not include” certain additional facts concerning Mr. Kebede’s offer to buy the subject property for more than the original note, and his attempts to meet Fannie Mae’s demands by obtaining proof of funds and a financing letter.2 Mr. Kebede supported one of the four additional facts with a general citation to an attachment. Attached to the motion was correspondence from August 2018 concerning purchasing the home and an August 15, 2018 letter from a mortgage company stating that the applicant met the financial requirements for a $610,000.00 loan;3 the letter noted, however, that it did not constitute final approval of a loan. Fannie Mae replied to Mr. Kebede’s response on December 18, 2018. Therein, Fannie Mae asserted that Mr. Kebede essentially admitted its statement of undisputed facts by not disputing them. With regard to the additional facts Mr. Kebede attempted to introduce, Fannie Mae argued that he actually failed to “set forth any facts as directed by Rule 56.03,” because the facts alleged by Mr. Kebede were not accompanied by specific citations to the record supporting the contention, as required by the rule. Without such citation, Fannie Mae argued that Mr. Kebede’s response “is nothing more than denials or allegations” and that Mr. Kebede could not defeat summary judgment by reliance thereon. Further, Fannie Mae argued that Mr. Kebede’s claim of a breach of the covenant of good faith and fair dealing failed, as Fannie Mae was never a party to any contract with Mr. Kebede. Additionally, Fannie Mae noted that “[e]very court that reviewed [Mr. Kebede’s] 2 Specifically, Mr. Kebede alleged the following additional facts: 1. [Mr.] Kebede has offered to buy and been attempting to purchase his home . . . from the Plaintiff. 2. [Mr.] Kebede has offered more than the original note amount of $417,000.00, which amount is inclusive of, and adequate to reimburse, the Plaintiff’s costs and expenses. 3. [Mr.] Kebede has offered to pay $610,000.00 for his home . . . which amount is inclusive of, and would reimburse, the Plaintiff’s costs and expenses. 4. [Mr.] Kebede has done everything that the Plaintiff requested including showing evidence of proof of funds and obtaining a financing letter. (Attached). 3 The name of the applicant was not Mr. Kebede, but Messeret Terzneh. The record on appeal is not clear as to identity of this individual, but Mr. Kebede asserts in his brief that this document indicates his ability to pay off the note. -3- loan and allegations found that it was [Mr. Kebede] who failed to meet his contractual obligations.” A hearing on the motion for summary judgment occurred on January 7, 2019. The trial court then entered a written order granting the motion on January 18, 2019. Therein, the trial court stated the facts as only those contained in Fannie Mae’s statement of undisputed facts. Based on these facts, the trial court ruled that there was no genuine issue of material fact in dispute, that the foreclosure was valid, that the Substitute Trustee’s Deed granted title to Fannie Mae, and that Mr. Kebede was unlawfully in possession of the property. The trial court found that Mr. Kebede’s claims were either insufficient to defeat summary judgment or barred by res judicata. As such, the trial court issued a writ of possession in favor of Fannie Mae and directed the Shelby County Sheriff to execute the writ. Mr. Kebede filed a notice of appeal to this Court on February 6, 2019.4 ISSUES PRESENTED Mr. Kebede raises the following issues, which are slightly restated: 1. Whether the trial court erred in dismissing Mr. Kebede’s claim for breach of the covenant of good faith and fair dealing. 2. Whether the trial court erred in disregarding Mr. Kebede’s offer to pay off the note secured by the deed of trust. 3. Whether a constructive trust should be imposed as to Fannie Mae’s third- party purchaser. STANDARD OF REVIEW The trial court resolved the underlying action by way of summary judgment. Summary judgment is appropriate “when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 , 250 (Tenn. 2015) (quoting Tenn. R. Civ. P. 56.04). The trial court’s decision to grant or deny a motion for summary judgment is reviewed de novo with no presumption of correctness. Id. “In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.” Id. (citing Estate of Brown, 402 S.W.3d 193 , 198 (Tenn. 2013)). DISCUSSION 4 Following the final judgment, considerable disputes arose as to the record and the bond required to stay the judgment. None of these issues appear to be relevant to the issues raised in this appeal. -4-  This case has as its genesis a claim for possession based upon a detainer warrant. “[T]he gravamen of a detainer action is the wrongful detaining of realty . . . .” Craig v. Collins, 524 S.W.2d 947 , 951 (Tenn. Ct. App. 1974). A detainer action therefore turns on whether the plaintiff has “the right to possession” of the real property at issue. CitiFinancial Mortg. Co. v. Beasley, No. W2006-00386-COA-R3-CV, 2007 WL 77289 , at *6 (Tenn. Ct. App. Jan. 11, 2007) (“FED [i.e., forcible entry and detainer] actions concern only the right to possession.”). Here, Fannie Mae’s statement of undisputed facts demonstrated the following: (1) following non-payment on the deed of trust, Mr. Kebede initiated two different actions attempting to avoid foreclosure proceedings; both attempts were dismissed; (2) a foreclosure sale occurred and a Substitute Trustee’s Deed was filed showing that the property was purchased by Fannie Mae; (3) a third case was filed by Mr. Kebede to set aside the foreclosure that was again unsuccessful, as the district court found no irregularities in the foreclosure sale; and (4) Mr. Kebede remains in possession of the property. Nothing in Mr. Kebede’s response to the motion for summary judgment or in his brief on appeal indicates that Mr. Kebede disputed a single fact set forth by Fannie Mae. These facts were therefore admitted. See Holland v. Memphis, 125 S.W.3d 425 , 428 (Tenn. Ct. App. 2003) (“The material facts set forth in the statement of the moving party may be deemed admitted in the absence of a statement controverting them by the opposing party.”). Under these circumstances, we agree with the trial court that the undisputed facts set forth above demonstrate that Fannie Mae is entitled to possession of the property. Mr. Kebede argues, however, that that the trial court erred in failing to properly and thoroughly consider his argument that Fannie Mae was not entitled to possession due to a breach of the covenant of good faith and fair dealing and his offer to pay off the note in question.5 In support, Mr. Kebede cites his additional factual allegations concerning his attempt to purchase the property from Fannie Mae in or around August 2018. We must therefore first determine whether these additional facts are a proper matter for consideration. The practice of summary judgment is defined by Rule 56.03 of the Tennessee Rules of Civil Procedure. In addition to disputing the facts set forth by the movant,6 the non- 5 Although Mr. Kebede raises these arguments separately in his designated issues, it appears that Mr. Kebede contends that Fannie Mae breached its duty by failing to respond to Mr. Kebede’s offer to pay off the property. For example, Mr. Kebede asserts that “it is a violation of the covenant of good faith and fair dealing for Fannie Mae to refuse to accept the pay off.” As such, we will likewise consider these arguments together. 6 Specifically, Rule 56.03 provides that when the moving party files a properly supported motion for summary judgment, the party opposing the motion “must” then file a response choosing one of the following three options: (1) agree that the fact is undisputed; (2) agree that the fact is undisputed for purposes of summary judgment; or (3) “demonstrate[e] that the fact is disputed. Each disputed fact must be -5- moving party may also set forth its own “concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried.” Id. Of course, “[e]ach such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute.” Id. Fannie Mae asserted at the trial level that Mr. Kebede’s additional facts should not be considered because he did not support each additional fact with a citation to the record supporting the contention. Fannie Mae therefore asserted that Mr. Kebede failed to offer “any proof at all” to support the additional facts upon which his defense to summary judgment rested. The trial court in this case made no specific ruling as to Mr. Kebede’s additional facts except to state that there were no material facts in dispute. The trial court then relied exclusively on the undisputed facts and documents set forth by Fannie Mae. Likewise, the trial court offered no more reasoning for rejecting Mr. Kebede’s arguments than the conclusion that “the arguments and allegations made by [Mr. Kebede] in opposition to the summary judgment are either barred by res judicata or are otherwise insufficient to defeat summary judgment for [Fannie Mae].” Respectfully, the trial court’s ruling is deficient. Rule 56.04 of the Tennessee Rules of Civil Procedure provides that trial courts “shall state the legal grounds upon which the court denies or grants the motion [for summary judgment.]” The Tennessee Supreme Court has held that this directive is mandatory and requires that trial courts ensure that their rulings are adequately explained. Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 , 313– 14 (Tenn. 2014). The trial court’s order veers very close to shirking this responsibility, as it provides no reasoning for the trial court’s decision to ignore Mr. Kebede’s additional facts7 or for its decision that his arguments were either barred by an affirmative defense that had not yet been pleaded or were in some way insufficient. We note, however, that disputes concerning this property have been fought in a multitude of cases over nearly a decade. As such, we will proceed to consider the merits of Mr. Kebede’s arguments in order not to prolong this already protracted dispute. Here, as we perceive it, the thrust of Mr. Kebede’s response to summary judgment and his argument on appeal is that Fannie Mae breached the duty of good faith and fair dealing by refusing to properly entertain his offer to purchase the property. Even considering Mr. Kebede’s facts as properly supported under Rule 56.03 and therefore undisputed,8 we cannot conclude that these facts allow Mr. Kebede to avoid Fannie Mae’s supported by specific citation to the record.” Tenn. R. Civ. P. 56.03. As previously discussed, Mr. Kebede chose none of this options and Fannie Mae’s facts are therefore deemed admitted. 7 If the trial court had determined that Mr. Kebede failed to comply with Rule 56.03 and refused to consider his additional facts, that decision would be reviewed for an abuse of discretion. See Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771 , 774 (Tenn. Ct. App. 2001). 8 We again note that although the letter provided by Mr. Kebede indicated that only a third-party was eligible to receive a loan in the amount of $610,000.00. Fannie Mae, however, did not specifically -6- effort to possess the subject property. First, as previously discussed, this case involves only possession of the property in question. Beasley, 2007 WL 77289 , at *6. In a proper case, however, “‘wrongful foreclosure can be raised as an affirmative defense to an unlawful detainer action brought by the purchaser of property in foreclosure.’” Boyce v. LPP Mortg. Ltd., 435 S.W.3d 758 , 766 (Tenn. Ct. App. 2013) (quoting Davis v. Williams, E2010-01139-COA-R3-CV, 2011 WL 335069 , at *4 (Tenn. Ct. App. Jan. 31, 2011)). We cannot conclude, however, that Mr. Kebede’s facts demonstrate anything near wrongful foreclosure. Instead, Mr. Kebede submits documents that show that he offered to purchase the property from Fannie Mae in or around August 2018. The foreclosure at issue occurred more than a year earlier, in February 2017. Mr. Kebede offers no legal authority to suggest that Fannie Mae’s alleged misconduct over a year following the foreclosure sale in any way voids the foreclosure or prevents Fannie Mae from seeking possession of the subject property at this time. Indeed, the only case cited by Mr. Kebede to support this argument involved alleged pre- foreclosure misconduct on the part of the homeowner’s lender, not a party that was simply conveyed the property by the purchaser following the foreclosure sale. See generally Kinard v. Nationstar Mortg. LLC, 572 S.W.3d 197 (Tenn. Ct. App. 2018) (involving a claim to enjoin a future foreclosure action on the basis that that the mortgage holder failed to provide the debtor with information concerning payoff). The facts presented by Mr. Kebede are simply not analogous. Even more importantly, a claim for breach of the covenant of good faith and fair dealing hinges on the existence of a contract between the parties. As we have explained, [A] claim based on the implied covenant of good faith and fair dealing is not a stand alone claim; rather, it is part of an overall breach of contract claim. Lyons v. Farmers Ins. Exch., 26 S.W.3d 888 , 894 (Tenn. Ct. App. 2000). While every contract contains an implied covenant of good faith and fair dealing, Goot v. Metro. Gov’t of Nashville & Davidson County, No. M2003- 02013-COA-R3-CV, 2005 WL 3031638 , at *7 (Tenn. Ct. App. Nov. 9, 2005) (citations omitted), there must be a contract to contain the covenant. Jones v. LeMoyne-Owen Coll., 308 S.W.3d 894 , 907 (Tenn. Ct. App. 2009). Here, none of the additional facts set forth by Mr. Kebede or the documents he relies on indicate that there was ever a contract between Mr. Kebede and Fannie Mae.9 Indeed, Fannie Mae’s dispute Mr. Kebede’s assertion that the letter was proof of his ability to pay off the note on the subject property. Instead, as previously discussed, Fannie Mae asserted that none of the additional facts should be considered due to Mr. Kebede’s non-compliance with Rule 56.03. Because we conclude that even taking Mr. Kebede’s assertions as true, he is not entitled to relief, we need not determine whether Mr. Kebede provided sufficient factual support for this particular assertion. 9 Mr. Kebede also did not assert, nor did he provide any legal authority, for the notion that Fannie Mae was somehow bound by any contract between Mr. Kebede and another party. -7- statement of undisputed facts establishes that Fannie Mae was merely the transferee of the property by the property’s purchaser following the foreclosure sale. Because Mr. Kebede failed to set forth specific facts showing an essential element of his defense, i.e., the existence of a contract, the trial court did not err in ruling that he could not prevail on his claim for a breach of the duty of good faith and fair dealing related to his offer to purchase the subject property. In sum, following our de novo review of the record, we conclude Mr. Kebede failed to set forth specific facts to support his claim for a breach of the covenant of good faith and fair dealing based on Fannie Mae’s alleged failure to respond to Mr. Kebede’s offer to pay off the note in question. Because Mr. Kebede’s request for a constructive trust is predicated on his claim for a breach of the covenant of good faith and fair dealing on this basis,10 he is also not entitled to a constructive trust in his favor against the third-party purchaser of the property. Moreover, the undisputed material facts demonstrate that Fannie Mae is entitled to summary judgment on its claim of possession to the subject property. The trial court’s decision is therefore affirmed in its entirety. CONCLUSION The judgment of the Shelby County Circuit Court is affirmed and this cause is remanded for all further proceedings as are necessary and consistent with this Opinion. Costs of this appeal are taxed to Appellant Fasil Kebede, for which execution may issue if necessary. S/J. Steven Stafford J. STEVEN STAFFORD, JUDGE 10 For example, Mr. Kebede asserts in his brief that the basis for his constructive trust argument is that “[t]hrough the breach of covenant by Fannie Mae [the third-party purchaser] has obtained an interest in property which he ought not in equity or good conscience retain. His windfall arises out of the breach of covenant by Fannie Mae . . . .” -8-

2020-01-17 22:01:59.68701+00

Love

*168OPINION. Love: As relating to the year 1918 the sole question presented in this proceeding is the petitioner’s right to determination of its excess-profits taxes in accordance with sections 327 and 328 of the Revenue Act of 1918, which, so far as material, provide: Seo. 327. That in the following cases the tax shall be determined as provided in section 328. * ⅜ ⅜ * * * * (d) Where upon application by the corporation the Commissioner finds and so declares of record that the tax if determined without benefit of this section would, owing to abnormal conditions affecting the capital or income of the corporation, work upon the corporation an exceptional hardship' evidenced by gross disproportion between the tax computed without benefit of this section and the tax computed by reference to the representative corporations specified in section 328. This subdivision shall not apply to aiiy case (1) in which the tax (computed without benefit of this section) is high merely because the corporation earned within the taxable year a high rate of profit upon a normal invested capital * ⅜ *. Sec. 328. (a) In the cases specified in section 327 the tax shall be the amount which bears the same ratio to the net income of the taxpayer (in excess of the specific exemption of $3,000) for the taxable year, as the average tax of representative corporations engaged in a like or similar trade or business, bears to their average net income (in excess of the specific exemption of $3,000) for such year. ⅜ * ⅜ This petitioner contends that abnormalities affecting its capital or income existed in two particulars during the year 1918. They are, first, the use of borrowed capital in amounts far exceeding its invested capital and upon interest terms equaling approximately 50 per cent of the normal rate upon such borrowings, and, second, in respect to salaries paid its officers. The monthly average amount of bills payable was $472,467.87. At 8 per cent, which was the normal interest rate upon such borrowings, interest upon trade obligations of the petitioner would amount to $37,797.43. The difference between this amount and $59,462.04, which is the total of debits to interest during 1918, amounts to $21,664.61 and, the petitioner contends, represents the interest credits on stockholders’ loans. Upon the monthly average amount of loans from stockholders, i. e., $585,123.86, the $21,644.61 above mentioned would indicate an interest rate of less than 4 per cent (0.03699) upon stockholders’ loans. The figures and computations set forth in the paragraph last above are offered in the petitioner’s brief, as the principal basis upon which *169the claim for special assessment is made. The petitioner especially contends that it was able to borrow large sums of money from its stockholders at low rates of interest and that by reason thereof an abnormality was created in its income. Without expressing an opinion as to the soundness of the petitioner’s theory, we desire to point out that upon the record its syllogism is unacceptable because the major premise has not been established. While the rate or- rates of interest paid on stockholders’ loans and the total amount of such interest are facts peculiarly within the knowledge of the petitioner, there is no evidence in the record relative thereto. The rate has been mentioned as “ varying ” and the crediting of it as “ irregular,” but we are asked to believe that the rate was less than 4 per cent. The total amount paid or credited stockholders as interest on loans we must find by computing the difference between the total of interest at the normal rate on bills payable and the total debits to interest during the taxable year. We have no evidence that the petitioner paid the normal rate on its trade accounts. We would be as well justified in believing that the petitioner paid 6 per cent on both trade accounts and stockholders’ loans as in believing that it paid 8 per cent on trade accounts and only 4 per cent on stockholders’ loans. While from the record it appears that the petitioner used large amounts of borrowed capital, this fact does not in itself necessarily create an abnormality. The petitioner alleged that in its case an abnormality of income was produced because the capital borrowed from stockholders was borrowed at an interest rate only one-half of the normal rate. The record fails to substantiate that allegation. The interest which was paid was a deduction from income, and whatever the difference between the legal rate and the amount paid was, it does not appear to have created an abnormality in income. As a further basis for its allegation of an abnormality in income, the petitioner asserts that its officers, particularly Herrick, the president, were paid salaries not at all commensurate with the value of their services. Total salaries paid amounted to $8,500, of which. Herrick received $5,000. Herrick was engaged in the affairs of the Scotch Lumber Co. and the Export Lumber Co., as well as those of the petitioner. We have little evidence of his services to the petitioner, certainly not sufficient to hold that his salary was so inadequate as to create an abnormality of income. See Kossar & Co., 16 B. T. A. 952; Warren County Fertilizer Co., 17 B. T. A. 113. We conclude that the petitioner has failed to establish error in the respondent’s denial of special assessment for the year 1918. The principal allegation of error with respect to the respondent’s determination of the deficiency for the year 1920 is the respondent’s f'-^ure to permit the deduction of $94,217.63 as a bad debt, *170It appears that at December 31, 1920, the’Railway Company was indebted to the petitioner in the amount of $94,217.63. The railroad had always operated at a loss and at the date mentioned, its source of business being about exhausted, it was apparent that the company would never have a sufficient income to permit liquidation of its debt. The petitioner had theretofore taken over certain assets of the Railway Company and was operating them as a private logging spur. On December 31, 1920, the petitioner charged off its books as a loss $69,217.63, and claimed a deduction of this sum in its tax return as a bad debt. The balance of the account, amounting to $25,000, was permitted to remain on the petitioner’s books retaining the form of an account receivable, but, being in fact, the petitioner now contends, an asset account of the Alder Creek logging spur. In an affidavit dated July 21, 1925, and filed with the Bureau of Internal Revenue, J. C. Palmer, vice president of the petitioner, stated that he was: Vice-President of the Milwaukee Lumber Company and as such officer had access to, and is familiar with the books and records and affairs of said company, and is qualified to make this affidavit. That the Alder Creek Railway Company was incorporated December 27, 1912, with an authorized capital stock of $25,000, all of which was issued to officers of the Milwaukee Lumber Co. without consideration. * * * ⅝ * ⅜ sj: That the total account against the Alder Creek Railway Company in 1020 amounted to $94,217.63. That of this amount, $69,217.63 was charged off as a loss in 1920, leaving a balance of $25,000. That the entire amount of this account became a loss in 1920, and should have been charged off the books for the reason that in 19.19 and 1920, the Milwaukee Lumber Company purchased all of the assets of the Aider Creek Railway Company, and in 1920 took judgment for the balance of the account. * * * ⅜ * * * That at the time of charging off the $69,217.63 the officers of the Milwaukee Lumber Company did not understand that the entire amount would have to be charged off in that year in order to be deductible in the income-tax return of the company. That it is now understood that the entire amount of $94,217.63 should have been written off the books in 1920, the year in which judgment was taken, and that the entire amount is deductible in computing income for that year. Mr. Palmer had access to the records to secure the information contained in the said affidavit. By an affidavit dated October 23,1925, the statement that judgment was taken in 1920 was corrected. In support of its contention that subsequent to December 31, 1920, the $25,000 balance of the Railway Company account was an asset account of the Alder Creek spur and not an account receivable, the petitioner has established that at December 31, 1921, it charged $10,-*171000 off this account and deducted that amount from income for 1921 as a logging expense and not as a bad debt or a loss. There has also been certain testimony in support of the petitioner’s contention. We think, however, that upon the whole the petitioner’s treatment of the Railway Company’s account has not been such as to warrant our approval of the deduction claimed. The statute involved is section 234 (a) (5) of the Revenue Act of 1918, which provides: Sec. 234. (a) That in computing the net income of a corporation * * * there shall he allowed as deductions: (5) Debts ascertained to be worthless and charged off during the taxable year. We have held that to constitute allowable deductions alleged bad debts must meet two tests: (1) That they were charged off during the taxable year, and (2) that they represent debts ascertained to be worthless. Steele Cotton Mill Co., 1 B. T. A. 299. The language of the statute is unambiguous and unmistakably requires compliance with both conditions before a deduction may be allowed. The first test mentioned requires the setting up of evidence of the ascertainment of worthlessness substantially as of the date of such ascertainment and in confirmation thereof. Mason Machine Works Co., 3 B. T. A. 745. Where a taxpayer keeps books the charge-off should be evidenced by such book entries as will eliminate the debt from its book assets. Ed. C. Lasater, 1 B. T. A. 956. Part of a debt may not be written off as worthless and the other part maintained on the books as having a value. Steele Cotton Mill Co., supra, and Cherry Basset Co., 2 B. T. A. 426. After the charge-off of $69,217.63 on December 31, 1920, the Railway Company’s account on the petitioner’s books showed a debit balance of $25,000. This was in form an account receivable. The petitioner asserts that it was in fact a capital asset acccount of the Alder Creek spur and, on brief, its counsel states: Any assumption that the balance in the Alder Creek Railway account represented an account receivable necessitates a second assumption that no entry was made on the acquisition of assets consisting of ties, rails, tools, equipment, etc., valued as $25,000, which is highly improbable. Among the petitioner’s witnesses was J. C. Palmer, vice president, who testified that he was familiar with the petitioner’s books. On direct examination he was asked: Q. Now do you know, and I will ask you to refer to the books if you care to, to answer the question, whether the Milwaukee Lumber Company opened any other account when it acquired these assets in 1920, or whether it entered the *172equipment, and so forth in any other account? You can refer to the books, if you care to, or answer from your own knowledge if you care to. A. Not to my knowledge. The petitioner’s books were not offered in evidence. There are several other features inconsistent with the petitioner’s claim that the $25,000 balance mentioned was not the balance of an account receivable. Palmer’s affidavit of July 21, 1925, states that “ the entire amount of the account became worthless in 1920 and should have been charged off the books.” The petitioner’s contentions before the Board are inconsistent with the theory that the $25,000 balance represented an Alder Creek spur account, because the petitioner is here claiming a deduction of $94,217.63, which sum makes no allowance for the $25,000 allegedly credited the Railway Company for the assets taken over. Furthermore, the petitioner’s suit, and the judgment subsequently received, make no allowance for the assets acquired. Other features might be discussed, especially whether or not the account was in fact worthless and actually ascertained to be so during 1920. We think, however, that such discussion is unnecessary as it, would in no wise affect our ultimate determination, which is that the petitioner has not established that its account with the Railway-Company was ascertained to be worthless and was charged off during 1920, or that the total account was worthless and only a part charged off. See Mason Machine Works Co., 3 B. T. A. 745. The other errors alleged by the petitioner are reductions of invested capital for the year 1920 by (1) the amount of the deficiency determined for the year 1918, and (2) by the amount of $2,123.60, representing -a prorated portion of the petitioner’s tax liability for the year 1919. With respect to the first of these contentions the Board has held adversely to the petitioner’s position and adheres to that ruling. W. T. & M. Co., 11 B. T. A. 722; Hooven, Owens, Rentschler Co., 9 B. T. A. 1376. The respondent’s reduction of invested capital for 1920 by a prorated portion of the petitioner’s income and profits taxes for 1919 is approved. His contention that the said invested capital should have been reduced at the beginning of the year by the entire amount of the petitioner’s tax liability for the year 1919 is not in accord with our rulings and is denied. Russel Wheel & Foundry Co., 3 B. T. A. 1168. Judgment will he entered for the respondent.

2020-01-17 22:01:59.724215+00

Trammell

*20OPINION. Trammell: The petitioners contend that for 1922 they were entitled to deduct as losses sustained during that year the cost to them of the stock of the Adamson Oil Corporation. The amount of the loss is not in dispute, but the controversy is as to when the loss is deductible. In support of their contention the petitioners urge that, since the stockholders at a meeting in March 1, 1922, determined that a loss had been incurred and authorized the sale of the property at a price much insufficient to pay the corporation’s indebtedness, they had the right to treat their stock as worthless at that time and charge off as a loss their investment in the stock. At the beginning of 1922 the corporation had notes outstanding in the amount of approximately $112,000. Of that amount $10,000 *21was paid during the year by means of an assessment against the stockholders. At the end of 1922 the corporation owed in excess of $100,000. In March, 1922, the stockholders had voted to sell the corporate assets for not less than $15,000. However, during that year the corporation was unable to obtain an offer to purchase the assets at any price. It was not until April, 1923, that an offer was obtained. This offer, the terms of which were never carried out, was for $40,000 and resulted in a cash payment of only $7,000. Although the corporation continued to operate the property, it did so jit a loss. From the facts we think that the financial position of the corporation was hopeless in 1922 and that its stock was valueless. Joslyn Manufacturing & Supply Co., 6 B. T. A. 749. Although the property was not finally disposed of until 1925, and operations were continued until that time, we do not think under the facts here presented that this indicates that the stock was not valueless in 1922. Events occurring subsequent to 1922 merely confirm the worthlessness of the stock in that year. We therefore are of the opinion that this contention of the petitioners is correct. Henry M. Jones, 4 B. T. A. 1286; N. P. Christensen, 7 B. T. A. 625; C. E. Conover Co., 7 B. T. A. 1234. With respect to the assessments made on the stock of the Adam-son Oil Corporation and the amounts paid thereon by the petitioners in 1922 and 1923, the petitioners contend that by making the assessments a convenient plan was being made use of'to collect from those who were endorsers on the corporation’s notes and guarantors of its accounts; that the assessments were for the purpose of discharging their liability on notes of the corporation on which they were endorsers; that the monejr was used for that purpose and that in making such payments they were paying and discharging by installments a portion of their losses. While such assessments represented additional cost of the stock, they were also only additional losses, as the stock had then become worthless. J. G. Paxton, 7 B. T. A. 92. In April, 1922, Penna loaned the corporation $1,000 with which to pay interest taking the corporation’s note therefor. While he knew that the corporation was insolvent and that the note was worthless at the time it was given, yet he was an endorser on notes and a guarantor of accounts of the corporation, and the amount in fact constituted a partial payment of his losses. Under the circumstances, we are of the opinion that the amount here involved constitutes an allowable deduction to him for 1922 as a loss then sustained. Judgment will be entered for the petitioners.

2020-12-02 23:00:29.078105+00

https://www2.ca3.uscourts.gov/opinarch/201844np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 20-1844 ______________ LABORERS LOCAL NO. 231 PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Appellant v. RORY J. COWAN; EDWARD A. BLECHSCHMIDT; MICHAEL G. DALLAS; GUY L. DE CHAZAL; SUSAN JANE KANTOR; PAUL A. KAVANAUGH; JACK NOONAN; JAMES A. QUELLA; CLAUDE P. SHEER; H.I.G. CAPITAL, LLC; LBT ACQUISITION, INC.; LBT MERGER SUB, INC.; LIONBRIDGE TECHNOLOGIES, INC.; MARC LITZ ______________ On Appeal from the United States District Court for the District of Delaware (D.C. Civ. No. 1-17-cv-00478) District Judge: Honorable Colm F. Connolly ______________ Argued November 9, 2020 BEFORE: HARDIMAN, GREENBERG, and SCIRICA, Circuit Judges. (Filed: December 2, 2020) ______________ Peter B. Andrews David M. Sborz Craig J. Springer Andrews & Springer 3801 Kennett Pike Building C, Suite 305 Greenville, DE 19807 Randall Baron [Argued] Joseph D. Daley David T. Wissbroecker Robbins Geller Rudman & Dowd 655 West Broadway Suite 1900 San Diego, CA 92101 Christopher H. Lyons Robbins Geller Rudman & Dowd 414 Union Street Suite 900 Nashville, TN 37219 Counsel for Appellant Laborers Local No. 231 Pension Fund Deborah S. Birnback Jennifer B. Luz Goodwin Procter 100 Northern Avenue Boston, MA 02210 David John Teklits Morris Nichols Arsht & Tunnell 1201 North Market Street, 16th Floor P.O. Box 1347 Wilmington, DE 19899 Attorneys for Appellee Rory J. Cowan Anne S. Gaza Elena C. Norman Robert M. Vrana Young Conaway Stargatt & Taylor 1000 North King Street Rodney Square Wilmington, DE 19801 Attorneys for Appellee LBT Merger Sub. Inc. 2 Adam T. Humann Kevin R. Powell, II Kirkland & Ellis 1301 Pennsylvania Avenue, N.W. Washington, DC 20004 Joshua Z. Rabinovitz [Argued] Kirkland & Ellis 300 North LaSalle Street Suite 2400 Chicago, IL 60654 Attorneys for Appellees HIG Capital, L.L.C. and Lionbridge Technologies, Inc. ______________ OPINION* ______________ GREENBERG, Circuit Judge. I. INTRODUCTION This matter comes on before this Court on appeal of the lead Plaintiff-Appellant Laborers’ Local #231 Pension Fund, on behalf of itself and others similarly situated (hereinafter, “Plaintiff”). Plaintiff appeals from the District Court’s February 7, 2020 Order denying it leave to amend its Second Amended Complaint and the District Court’s March 19, 2020 Order granting summary judgment in favor of Defendants-Appellees Rory J. Cowan, et al. (“Defendants”). For the reasons that follow, we will affirm both orders. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 3  II. STATEMENT OF FACTS This is a securities class action lawsuit relating to allegedly misleading statements arising out of the sale of an entity named Lionbridge Technologies to H.I.G. Capital (“HIG”). 1 The lead plaintiff in this matter is a former shareholder of Lionbridge, which brought this suit on behalf of itself and all former Lionbridge shareholders. Defendant Cowan was the chief executive officer of Lionbridge. The remaining defendants are other individuals and entities involved with the Lionbridge sale. In December 2016, Lionbridge’s Board of Directors (the “Board”) approved a merger agreement for HIG’s acquisition of Lionbridge, which was contingent on Lionbridge shareholder approval. On January 31, 2017, Lionbridge issued a proxy statement (the “Proxy”), by which the Board unanimously recommended that its shareholders vote their shares in support of the buyout. The Proxy included a list of reasons explaining why the Board approved the proposed sale. One of those reasons was that Lionbridge’s financial advisor, Union Square Advisors (“Union Square”), opined that a sale price of $5.75 per Lionbridge share, a price greater than Lionbridge traded on the Nasdaq Exchange, was fair (the “Fairness Opinion”). Lionbridge included the full text of the Fairness Opinion in the Proxy and also included the analyses and assumptions on which Union Square relied in reaching its conclusion. The Proxy included a statement on behalf of the Board 1 Specifically, Lionbridge merged into a wholly-owned subsidiary of HIG. 4 providing that it believed the Fairness Opinion was a “positive reason[]” to support the approval of the merger agreement. (A158-61.) The Proxy also reported that in creating the Fairness Opinion, Union Square “used and relied upon certain financial projections provided by” Lionbridge (referred to hereinafter as the “Fairness Projections” or “Projections”). (A163.) Regarding the Fairness Projections, the Proxy included the following disclaimer: The [Projections] below [are] included solely to give the Lionbridge stockholders access to certain financial projections that were made available to the Special committee, our Board of Directors and Union Square, and is not included in this proxy statement to influence a Lionbridge stockholder’s decision whether to vote for the merger agreement or for any other purpose. (A171.) It further warned that “Lionbridge stockholders are cautioned not to place undue, if any, reliance on the forecasts” and “the forecasts do not take into account any circumstances, transactions or events occurring after the dates on which the forecasts were prepared. Accordingly, actual results will differ, and may differ materially, from those contained in the forecasts.” (A172.) The Proxy also explained that on December 6, 2016—shortly before Union Square provided the Board the Fairness Opinion—senior management altered the Fairness Projections upon which Union Square relied. The passage disclosing those revisions provides in part: Our senior management had prepared a preliminary set of financial projections that it provided to our Board of Directors at the April 27 and April 28, 2016 Board of Directors meeting, which included full year forecasted results for 2016 and 2017, and which forecasts were not materially different 5  than the December Projections, except that these forecasts were based on three months of actual results for 2016 resulting in 2016 Adjusted EBITDA figures approximately 17% higher than the December Projections summarized above, which included ten months of actual results for 2016. (A171.) The Proxy made similar disclosures regarding revisions made to July, August, October, and November 2016 projections. On February 28, 2017, over ninety percent of the Lionbridge shareholders voted to approve the company’s sale to HIG at the $5.75 per share price. The sale closed shortly thereafter. During this time, Lionbridge had engaged in a strategy to identify and pursue potential buyers of the company and used Union Square to assist it with identifying a potential buyer. Lionbridge also considered expanding through acquiring other companies. The Board formed an acquisitions committee to evaluate proposals and negotiate with interested parties. In December 2016, the Board participated in a meeting concerning the financial impact of three of Lionbridge’s pending acquisitions that the acquisitions committee approved. Three days after HIG acquired Lionbridge, Lionbridge announced that it acquired a company named ExeQuo.2 2 The other two pending acquisitions fell through. Additionally, per Appellees, the ExeQuo acquisition was a $7 million purchase, which is “so small that it would not even have required Lionbridge to disclose the transaction in an SEC filing if Lionbridge were still a public company at the time the acquisition closed . . . .” Appellees’ Br. at 14. 6  III. PROCEDURAL HISTORY Plaintiff initiated this action on April 27, 2017, and a year later Plaintiff filed a Second Amended Complaint. Plaintiff alleged that Defendants made several false and misleading statements in the Proxy. Defendants moved to dismiss the Second Amended Complaint, which the District Court granted in part and denied in part. Specifically, the Court dismissed the action to the extent that the Second Amended Complaint was based on five false statements in the Proxy, but the Court permitted one other false statement claim to proceed. On July 18, 2018, the Court denied Defendants’ Motion for Reargument on its dismissal ruling. Subsequently, Plaintiff moved for leave to file a Third Amended Complaint, which the Court denied as futile on February 7, 2020. On March 19, 2020, the Court granted summary judgment to Defendants. Plaintiff then filed this appeal in which it disputes the Court’s February 7, 2020 Order denying leave to amend and the March 19, 2020 Order granting summary judgment in favor of Defendants. IV. ANALYSIS The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 , and we have jurisdiction under 28 U.S.C. §§ 1291 , 1294. Plaintiff’s claims arise under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (hereinafter, the “Exchange Act”), 15 U.S.C. §§ 78n(a), 78t(a), and Securities and Exchange Commission (“SEC”) Rule 14a-9, 17 C.F.R. § 240 .14a-9(a). 7  A Section 14(a) claim3 requires a plaintiff to show that: “(1) a proxy statement contained a material misrepresentation or omission which (2) caused the plaintiff injury and (3) that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212 , 228 (3d Cir. 2007) (citation omitted). Only the first element is at issue on appeal, and, regarding that element, SEC Rule 14a-9 prohibits the making of a statement that “is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading . . . .” 17 C.F.R. § 240 .14a-9. A. The February 7, 2020 Order Denying Plaintiff’s Motion to Amend Plaintiff first disputes the District Court’s order denying it leave to amend the Second Amended Complaint, in which it sought to “add allegations of a second material misrepresentation giving rise to additional liability under the same cause of action.” (A102.) “[W]e review the District Court’s denial of leave to amend for abuse of discretion, and review de novo its determination that amendment would be futile.” United States ex rel. Schumann v. AstraZeneca Pharms. LP, 769 F.3d 837 , 849 (3d Cir. 2014) (citation omitted). 3 Section 20(a) of the Act provides for joint and severable liability of a controlled person and the controlling person for violations of the Act. Belmont v. MB Inv. Partners, Inc., 708 F.3d 470 , 484 (3d Cir. 2013). Because the District Court found that there had not been a Section 14(a) violation, it necessarily dismissed the Section 20(a) claim based on the underlying 14(a) claim. See id. (“Under the plain language of [§ 20(a)], plaintiffs must prove not only that one person controlled another person, but also that the ‘controlled person’ is liable under the [Exchange] Act.” (citation omitted)). 8  Plaintiff avers that the Proxy’s statement regarding the downward revisions made to the Fairness Projections was false and misleading because it caused shareholders to believe the buyout would be more attractive than it was. In OFI Asset Management v. Cooper Tire & Rubber, 834 F.3d 481 (3d Cir. 2016), we addressed facts similar to those in this matter. Specifically, we considered whether the district court erred when it dismissed the plaintiff’s claims pertaining to statements regarding certain projections contained in the defendant’s proxy statement. Id. at 500 . The OFI plaintiff argued that the proxy statement’s projections were “objectively false because they were materially greater than the projections used internally and presented to [another party] just weeks earlier.” Id. We found, however, that the projections were “plainly not included as statements of fact,” further stating that, “the only relevant statement of fact is that the projections, were, in fact, the projections that [a defendant] provided to [another party] and the financing bank during the negotiation of the deal.” Id. at 501 . We explained that the projections were “accompanied by a lengthy and specific disclaimer,” explicitly providing that the projections were “outdated” and advising shareholders not to rely on them. Id. Ultimately, we determined that the plaintiff had not pled that the defendants had stated a false or misleading statement because it did not allege that the defendants provided a different set of projections. Id. Here, just as in OFI, Plaintiff’s allegations pertain specifically to the Fairness Projections, which the Proxy warned were: (1) “included solely to give the Lionbridge stockholders access to certain financial projections that were made available to the Special Committee, our Board of Directors and Union Square”; (2) were not included “to 9 influence a Lionbridge stockholder’s decision whether to vote for the merger agreement or for any other purpose”; (3) “should not be regarded as an indication that Lionbridge and/or any of [its] affiliates, officers, directors, advisors or other representatives consider the forecasts to be predictive of actual future events”; and (4) shareholders should not “place undue, if any, reliance on the forecasts.” (A171-72.) Additionally, like those in OFI, the Projections at issue were included in the Proxy not as an estimate of Lionbridge’s future performance, but rather solely to provide shareholders with the same information that had been provided to the special committee, the Board, and Union Square. Plaintiff does not allege that the Projections were not provided to those entities; instead, it alleges that the Projections themselves, which were expressly disclaimed, were false and misleading. Our holding in OFI forecloses this conclusion, and Plaintiff’s arguments to the contrary lack persuasion. See 834 F.3d at 500-01. Neither are we persuaded by Plaintiff’s contention that “this interpretation of OFI would massively expand the carefully crafted safe harbor for forward-looking statements” and “effectively insulate[] all statements relating to projections.” (Appellant’s Br. 40 (internal quotation marks omitted).) Our ruling does not eliminate a plaintiff’s ability to bring a securities claim by alleging that certain projections themselves are false and misleading when those projections are included as an estimate of the company’s future performance. But such a circumstance is distinct from the situation in this matter in which the Projections were expressly disclaimed as being disclosed solely for the reason that they were made available to individuals and entities other than the shareholders. Accordingly, we will affirm the District Court’s order and hold that 10 Plaintiff’s intended amendment was futile because even if allowed, it could not affect our result. B. The March 19, 2020 Order Granting Defendants’ Motion for Summary Judgment Plaintiff next takes issue with the District Court’s order granting summary judgment in favor of Defendants. “[W]e employ a plenary standard in reviewing orders entered on motions for summary judgment, applying the same standard as the district court.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 , 265 (3d Cir. 2014) (citation omitted). “In considering an order entered on a motion for summary judgment, we view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Id. (internal quotation marks and citation omitted). In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015), the Supreme Court held that an opinion statement may be materially misleading if it “omits material facts about the . . . inquiry into or knowledge concerning a statement of opinion, and if those facts conflict with what a reasonable investor would take from the statement itself . . . .” Id. at 189 . “[W]hether a statement is ‘misleading’ depends on the [objective] perspective of a reasonable investor.” Id. at 186 . Here, the actionable representation at issue is the Proxy’s statement that the Lionbridge Board considered Union Square’s Fairness Opinion to be a “positive reason” to approve of the HIG buyout. Plaintiff avers that this statement is misleading because it “failed to disclose a material fact that undermined that opinion” in that the Projections on which Union Square relied did not include Lionbridge’s growth through future 11 acquisitions.4 (Appellant’s Br. 50.) Defendants aver, and the District Court agreed, that the Proxy expressly provided that it did not take future acquisitions into account. Specifically, they aver that the following passage—which consists of two consecutive sentences—supports their assertion: [(1)] The forecasts . . . reflect assumptions that are subject to change and are susceptible to multiple interpretations and periodic revisions based on actual results, revised prospects for our business, changes in general business or economic conditions, or any other transaction or event that has occurred or that may occur and that was not anticipated when the forecasts were prepared. [(2)] In addition, the forecasts do not take into account any circumstances, transactions or events occurring after the dates on which the forecasts were prepared. (A172.) Plaintiff argues that the first sentence “falsely implied to the reasonable investor that the Fairness Projections included at least ‘anticipated’ acquisitions,” when in truth, those Projections “did not account for any future acquisitions by Lionbridge, even those that were specifically anticipated at the time.” (Appellant’s Br. 51.) Moreover, it argues that even assuming the first sentence is ambiguous as to whether a reasonable investor would believe it impliedly included anticipated acquisitions, such ambiguity must be resolved by a jury. 4 The District Court found there was no dispute of material fact as to whether the Board itself believed that the Fairness Opinion was “a positive reason supporting [its] decision to recommend the merger notwithstanding the fact that the projections on which Union Square relied did not account for future acquisitions.” (A49-50.) Plaintiff does not strongly dispute this finding on appeal. (See, e.g., Appellant’s Br. 58 n.11.) 12  We will affirm the District Court’s order granting summary judgment in favor of Defendants. Here, the second sentence of the Proxy provides: “[T]he forecasts do not take into account any circumstances, transactions or events occurring after the dates on which the forecasts were prepared.” (A172 (emphasis added).) Even if the first sentence creates any ambiguity as to whether future acquisitions were considered, the second sentence clarifies that the forecasts do not account for those future acquisitions. (See A53.) As the Omnicare Court recognized, a “reasonable investor understands a statement of opinion in its full context . . . .” 575 U.S. at 190, see also id. (“[A]n omission that renders misleading a statement of opinion when viewed in a vacuum may not do so once that statement is considered, as is appropriate, in a broader frame . . . .”). Here, Plaintiff’s argument focuses on the first sentence and does not persuasively address how the second sentence expressly undermines its position. Thus, the passage is unambiguous.5 Further, 5 Nor do we find persuasive Plaintiff’s arguments that the District Court’s opinion on Defendants’ Motion to Dismiss evidences the passage’s ambiguity. Namely, that opinion, which was made by a judge who was later replaced, found that a reasonable investor may believe that the above-referenced first sentence implied that Lionbridge accounted for anticipated acquisitions in its Projections. That replaced judge, however, expressly acknowledged that it was a “close call” as to whether to allow Lionbridge to move forward with its claim and merely allowed the claim to proceed at the preliminary stage of the proceedings. Moreover, the District Court did not, as Plaintiff avers, violate the law-of-the-case in deviating from that ruling. The law-of-the-case doctrine “does not limit the power of trial judges to reconsider their [own] prior decisions” and “does not limit the power of trial judges from reconsidering issues previously decided by a predecessor judge from the same court.” United States ex rel. Petratos v. Genentech, Inc., 855 F.3d 481 , 493 (3d Cir. 2017). Further, “interlocutory orders . . . remain open to trial court reconsideration, and do not constitute the law of the case,” Id. at 494 (citation omitted), and “[t]he denial of a motion to dismiss does not end the litigation and ordinarily is not a final order[,]” Bell 13 because we find that there is no ambiguity, Plaintiff’s argument that the issue must be presented to a jury fails. Accordingly, we will affirm the February 7, 2020 and March 19, 2020 Orders. Atlantic-Pennsylvania, Inc. v. Pennsylvania Public Utilities Commission, 273 F.3d 337 , 343 (3d Cir. 2001). 14

2020-12-02 23:00:59.310829+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1173-298

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) ESTATE OF ESTHER KLIEMAN, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 04-1173 (PLF) ) PALESTINIAN AUTHORITY, et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER On August 18, 2020, the United States Court of Appeals for the District of Columbia Circuit remanded this case to this Court for further proceedings in light of the passage of the Promoting Security and Justice for Victims of Terrorism Act of 2019 (“PSJVTA”), H.R. 1865, 116th Cong., § 903 (Dec. 20, 2019). Estate of Esther Klieman v. Palestinian Auth., No. 15-7034 (D.C. Cir. Aug. 18, 2020). Subsequently, on September 9, 2020, the parties submitted a joint status report in which they set forth their respective positions on how they wish to proceed in this case. Joint Status Report (“JSR”) [Dkt. No. 296] at 1. The Klieman estate wishes to proceed with jurisdictional discovery, id. at 4, while the Palestinian Authority requests that the Klieman estate amend the jurisdictional element of the original complaint, id. at 7 (arguing that the Klieman estate has not “demonstrate[d] with plausible factual support amounting to more than speculation or conclusory statements that discovery will uncover sufficient evidence to establish personal jurisdiction”) (quoting Estate of Esther Klieman v. Palestinian Auth., 82 F. Supp. 3d 237 , 249 (D.D.C. 2015)).  Filing an amended complaint is unnecessary. See Nat’l Women’s Pol. Caucus, Inc. v. Metro. Louisville Women’s Pol. Caucus, Inc., 359 F. Supp. 3d 13 , 18 (D.D.C. 2019) (“The Court is not limited to the four corners of the operative complaint . . . in determining jurisdictional facts.”). The Klieman estate has proposed jurisdictional discovery that will be limited to “the narrow issues encapsulated in the predicates established by the PSJVTA.” JSR at 4; see also JSR at 3-4 (“[D]iscovery would be constrained to the easily identifiable issues found in the[] predicate requirements [of the PSJVTA].”). As the Klieman estate explains, “[s]atisfaction of the PSJVTA’s requirements would complete a legally sufficient jurisdictional theory; an inquiry into these requirements is therefore a valid exercise.” Id. at 4. The Klieman estate further represents that they are “prepared to discuss the scope of jurisdictional discovery with Defendants, once the Court has determined how it wishes to proceed.” Id. Jurisdictional discovery is appropriate so long as it is narrowly tailored to the areas proposed by the Klieman estate. Accordingly, it is hereby ORDERED that the plaintiffs may proceed with jurisdictional discovery limited to the areas specified in the Promoting Security and Justice for Victims of Terrorism Act of 2019, H.R. 1865, 116th Cong., § 903 (Dec. 20, 2019). The parties shall meet and confer about the scope of discovery consistent with these principles and submit a joint status report with a proposed schedule on or before December 18, 2020. SO ORDERED. /s/ ________________________ PAUL L. FRIEDMAN United States District Judge DATE: December 2, 2020 2

2020-12-02 23:02:19.334972+00

http://www.courts.ca.gov/opinions/documents/H042715.PDF

Filed 12/2/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT KWAN SOFTWARE ENGINEERING, H042715 INC., et al., (Santa Clara County Super. Ct. No. 109CV149780) Plaintiffs and Respondents, v. THOMAS HENNINGS et al., Defendants and Appellants; GRELLAS SHAH LLP et al., Objectors and Respondents. KWAN SOFTWARE ENGINEERING, H043215 INC., et al., Plaintiffs and Cross-defendants, v. FORAY TECHNOLOGIES, LLC, et al., Defendants, Cross-complainants and Appellants; GRELLAS SHAH LLP et al., Objectors and Respondents.  Plaintiff Kwan Software Engineering, Inc., doing business as VeriPic, Inc. (VeriPic), and its president and chief executive officer, John Kwan, (collectively, plaintiffs) sued a business competitor, defendant Foray Technologies, LLC (Foray) and certain individuals affiliated with Foray, including Foray’s president, Thomas Hennings (collectively, defendants). Prior to trial, defendants Foray and Hennings moved for sanctions against VeriPic, Kwan, and plaintiffs’ former counsel (the law firm Grellas Shah LLP). Among other sanctions, Foray and Hennings requested monetary sanctions under Code of Civil Procedure section 2023.030, subdivision (a),1 for plaintiffs’ misuse of the discovery process. In the course of litigation on Foray’s and Hennings’s sanctions request, the trial court sua sponte issued an order to show cause ordering plaintiffs and plaintiffs’ former counsel to show why sanctions, including monetary, evidentiary, and terminating sanctions, should not issue for (in the court’s words) plaintiffs’ “egregious and deliberate” “litigation abuse” in their filings with the court. All the defendants subsequently moved for sanctions against plaintiffs and plaintiffs’ former counsel (Grellas Shah LLP and two of the firm’s partners) and renewed the request for monetary sanctions under section 2023.030. The trial court ultimately ordered various sanctions against Kwan and VeriPic, including dismissal with prejudice of VeriPic’s remaining claims, for plaintiffs’ fraud on the court. However, the trial court denied defendants’ motion for monetary sanctions against plaintiffs and plaintiffs’ former counsel for misuse of the discovery process. Defendants argue on appeal that the trial court erred in denying their request for monetary sanctions against VeriPic, Kwan, and plaintiffs’ former counsel. For the reasons explained below, we conclude the trial court abused its discretion in denying defendants’ request for monetary sanctions against VeriPic and Kwan. We therefore 1 Unspecified statutory references are to the Code of Civil Procedure. 2 reverse the judgment and remand the matter to the trial court with directions that it determine the amount of reasonable expenses, including attorney fees, incurred by defendants as a result of VeriPic’s and Kwan’s misuse of the discovery process (§ 2023.030, subd. (a)) and order VeriPic and Kwan to pay that amount to defendants as monetary sanctions for abuse of the discovery process. However, we decide that defendants have not carried their burden on appeal of showing error by the trial court in declining to impose sanctions on plaintiffs’ former lawyers and affirm that portion of the order. I. FACTS AND PROCEDURAL BACKGROUND A. Underlying Litigation VeriPic and Foray provide digital asset management software to law enforcement agencies and are business competitors. In August 2009, VeriPic brought a lawsuit in Santa Clara County Superior Court against Foray alleging tort claims based on Foray’s systematic disparagement of VeriPic’s business. Kwan, the president and chief executive officer of VeriPic, later joined the lawsuit as a co-plaintiff. VeriPic’s and Kwan’s operative complaint (the seventh amended complaint) named as defendants Foray and five individuals affiliated with Foray—David Witzke, Michal Temple, Donnie McFall, Thomas Hennings, and Lynn Slaughter.2 The complaint alleged 13 causes of action, including for libel, slander, false advertising, and unfair competition, and sought damages of at least $255 million. Plaintiffs’ claims generally centered on allegations that defendants had disparaged VeriPic’s products and falsely told others that VeriPic engaged in unethical and illegal business practices commonly described as cybersquatting. For example, the complaint alleged certain defendants wrongfully sent a letter that implied plaintiffs had registered 2 Plaintiffs later dismissed McFall from the lawsuit with prejudice, and he is not a party in these appeals. 3 the domain name of “foray.ca” to intentionally and deceptively direct internet user traffic from foray.ca to VeriPic’s website. Approximately one year after the lawsuit began, in August 2010, Foray filed a cross-complaint against VeriPic and Kwan. Foray’s operative cross-complaint, filed in 2012, asserted nine causes of action against VeriPic and Kwan, including claims of cybersquatting, trade libel, trademark infringement, and unfair business practices based in part on their wrongful conduct in operating the domain name of foray.ca and wrongfully diverting Internet users, including actual and potential customers of Foray, to VeriPic’s own website. The parties engaged in pretrial litigation for over five years. By December 2014, the trial court had held 175 hearings in the case. We describe below only the procedural history relevant to this appeal, which centers on the trial court’s July 9, 2015 order that imposed a variety of sanctions against Kwan and VeriPic but denied defendants’ request for monetary sanctions pursuant to section 2023.030, subdivision (a), for misuse of the discovery process. B. Discovery In February 2010, VeriPic responded to special interrogatories propounded by Foray, including an interrogatory that asked whether users who entered the domain name of foray.ca would be “automatically diverted to YOUR website” (bold omitted). In its response, verified by Kwan, VeriPic stated in pertinent part that VeriPic owned the foray.ca domain but that it “did nothing with this web domain,” the domain was “parked,” and its “internet service pointed the domain to Responding Party’s VeriPic.com website as a matter of routine.” In a similar vein, and in supplemental form interrogatory responses that Kwan verified in March 2010, VeriPic denied that it intended to divert users to its own website when it managed or used the domain name foray.ca; it claimed that its Internet service provider “routinely points registered domains to the main website on the account without requests from the client.” 4  In January 2012, Kwan testified as the designated corporate representative of VeriPic. Kwan stated that he was the person who had registered the domain name of foray.ca for VeriPic, along with certain other domain names. Kwan’s understanding was that when a user typed in that foray.ca domain name the user would receive a message along the lines of “ ‘this page is not found.’ ” Kwan registered certain domain names to “poke fun” at VeriPic’s competitors in the computer industry. He denied directing Internet traffic to a VeriPic website; he maintained VeriPic’s Internet service provider had set up that direction of traffic on its own as part of the provider’s standard policy. VeriPic’s Internet service provider during the pertinent time period was BigBiz Internet Services (BigBiz). In February 2012, David Lai, the former president of BigBiz, appeared for his first deposition. We discuss the David Lai depositions in further detail further below in the context of defendants’ claims for sanctions against plaintiffs’ former counsel. In September 2013, Henry Lai, David Lai’s brother and then-president of BigBiz, was deposed. In connection with his deposition, Henry Lai produced numerous e-mails from BigBiz’s records that contradicted portions of Kwan’s deposition testimony and suggested Kwan had engaged in spoliation of evidence. The e-mails included one dated August 20, 2008, from Kwan to both David and Henry Lai directing them to obtain certain domains including foray.ca and to “point them to VeriPic.com.” The September 2013 document production also included two e-mails from 2010 that had not been previously produced and that intimated that plaintiffs’ lawyers had instructed the destruction or alteration of evidence related to the ongoing litigation. In particular, a May 4, 2010 e-mail from Kwan to Henry Lai at BigBiz stated: “ ‘As you know we are in the middle of a law suit [sic]. One of the central parts of the law suit [sic] is that we are suing the other company for damaging our business and they are suing us for cybersquatting on domains. [¶] Our lawyers have instructed us to get rid of certain domains… [a]nd with your help, we got rid of most of them.’ ” In another 5 e mail also apparently dated May 4, 2010, Kwan wrote to Henry Lai that “[t]he lawyer is unhappy” about the 2011 expiration date for certain domains and that “[t]hey want to see VeriPic, Inc. removed from the owner section of the .uk domains and to have the expiration date put into 2009 or show expired.” None of the e-mails referencing spoliation of evidence were to or from lawyers at Grellas Shah LLP, and the e-mails did not reference any lawyers by name. On October 3, 2013, defendants’ counsel sent a letter to plaintiffs’ counsel, Dhaivat Shah, regarding the two May 2010 e-mails discussed above and requesting an explanation for why they had not been previously produced. The next day, Kwan and VeriPic requested dismissal of 8 of the 13 causes of action in their complaint against defendants. These dismissed claims included VeriPic’s causes of action for trade libel and interference with prospective economic advantage and VeriPic’s and Kwan’s false-light claim based on defamatory statements defendants allegedly made to the public, existing customers, and potential clients that VeriPic was “ ‘unethical,’ ‘deceptive,’ and ‘unscrupulous.’ ” Following this dismissal, five causes of action remained in plaintiffs’ complaint: two false advertising claims asserted by VeriPic only, two libel claims asserted by both Kwan and VeriPic based on written defamatory statements, including by e-mail, that VeriPic “employees[’] business practices that are ‘unethical,’ ‘deceptive,’ and ‘unscrupulous,’ ” and a claim for unfair competition asserted by VeriPic only. C. Defendants’ Motion for Sanctions and Trial Court’s Order to Show Cause On November 25, 2013, Foray and Hennings (Foray’s president) moved for terminating and monetary sanctions against Kwan and VeriPic, pursuant to sections 128.7 and 2023.030, based on plaintiffs’ and plaintiffs’ counsel’s improper litigation conduct. Foray and Hennings alleged that plaintiffs had engaged in extensive litigation misconduct, including destroying and hiding evidence, filing false declarations with the 6 court, and pursuing meritless claims. Pursuant to section 2023.030, defendants sought monetary and terminating sanctions against Kwan’s and VeriPic’s complaint. Foray and Hennings moved for the trial court to impose monetary sanctions as reimbursement of the substantial attorney fees and expenses they had incurred in defending against what they described as Kwan’s defamation claims. Supporting their request for sanctions, Foray and Hennings submitted the declaration of their counsel, James S. Greenan (Greenan Declaration). The Greenan Declaration attached as exhibits, numerous documents, including discovery requests and responses, excerpts of deposition transcripts (including from Kwan’s deposition), multiple declarations filed by Kwan in the litigation, and the e-mails referenced above. Addressing costs and expenses incurred, the Greenan Declaration stated that Foray and Hennings had “expended more than three million dollars to defend against VeriPic’s claims” to date (presumably, as of November 1, 2013, the date of the Greenan declaration). The Greenan Declaration further asserted that Kwan’s misconduct required Foray to spend “four years defending itself against nine defamation-based claims asserted by Kwan” and detailed costs including that Foray “had to procure 55 declarations” in support of its motions for summary judgment. It further noted Foray and Hennings had incurred expenses amounting to $280,000 from vendors to assist in review and production of electronic documents. The Greenan Declaration did not attach any exhibits related to its costs and expenses but stated that “[a]n itemized accounting of costs and fees will be submitted as a supplement to this declaration if the Court so requests.” On March 21, 2014, the trial court held an evidentiary hearing on Foray and Hennings’s motion for sanctions. Because of a possible conflict of interest between Grellas Shah LLP (plaintiffs’ counsel) and Grellas Shah LLP’s clients VeriPic and Kwan, VeriPic appeared at the hearing represented by different counsel on a limited scope basis. Kwan also appeared and was represented by his own counsel on a limited scope basis. Kwan asserted the Fifth Amendment privilege against self-incrimination to all questions 7 directed at him involving issues in the case, including about the May 4, 2010 e-mail he sent that referred to instructions from unnamed lawyers to “get rid of certain domains.” Plaintiffs’ counsel Dhaivat Shah and George Grellas appeared on behalf of themselves and the law firm Grellas Shah LLP, and each testified at the March 21, 2014 hearing.3 Counsel for Kwan objected to numerous questions directed at Dhaivat Shah and George Grellas on various grounds, including Kwan’s Fifth Amendment privilege. The trial court sustained a number of those objections. During the March 21, 2014 hearing, Foray and Hennings also argued that the trial court should use its inherent authority (in addition to its statutory authority under section 128.7 and the Civil Discovery Act) to issue sanctions, citing to Slesinger v. Walt Disney Co. (2007) 155 Cal.App.4th 736 , 740 (Slesinger). After hearing further argument from counsel, the trial court took the sanctions motion under submission and continued the trial date. The trial court stated it would issue its decision “for the first instance” by the next hearing, which it scheduled for May 2, 2014. The court stated that if it decided to set a “sanctions hearing” it would occur after May 2. On May 2, 2014, instead of issuing its ruling on Foray’s and Hennings’s sanctions motion, the trial court sua sponte issued an order to show cause (OSC) that “expand[ed] the scope of what was presented in motions by the Defendants.” The trial court’s OSC ran to nearly 60 pages and ordered Kwan, VeriPic, and plaintiffs’ counsel to “show cause as to why monetary, issue, evidentiary and terminating sanctions should not be issued against them pursuant to Code of Civil Procedure section 128.7, subdivisions (b)(1)-(3), the Discovery Act, Business & Professions Code sections 6068[,] subdivisions (c) & (d), and the Court’s inherent authority to properly administer justice and to preserve the Court’s integrity.” 3 At the time of the March 2014 hearing, Grellas Shah LLP was still counsel of record for plaintiffs. However, by June 2014, VeriPic and Kwan had each substituted in new counsel of record. 8  The OSC quoted in extensive detail e-mails Kwan wrote to BigBiz in 2008 and 2009 that contradicted his statements in court filings, including submitted declarations sworn under the penalty of perjury, as well as the e-mails Kwan sent in May 2010 to BigBiz referencing instructions from lawyers to get rid of certain domains. The OSC also quoted a declaration submitted by Kwan to the court, which attached as an exhibit a letter dated March 12, 2010, that Kwan attested corroborated his testimony that VeriPic’s registration of the Foray domain name was proper and ethical. According to Kwan’s declaration, that March 12, 2010 letter was a letter he received from David Lai of BigBiz that stated BigBiz had done a trademark search on the domain name of www.Foray.ca and concluded the registration of that domain was proper. Ten days after the OSC issued, on May 12, 2014, the parties appeared for a hearing on the OSC. Turning to the monetary sanctions in the form of attorney fees, the trial court noted that it understood Foray’s and Hennings’s request for sanctions to be that “[t]hey want all their money back” and stated “if you think that I should be awarding those, I think you need to brief it in terms of my order to show cause.” The trial court stated that it wanted Foray and Hennings to brief the legal issue but not submit declarations setting out the exact amounts requested until it had ruled on the legal issue. On July 2, 2014, Foray and Hennings (joined by defendants Slaughter, Temple, and Witzke) filed a second motion for sanctions. Defendants referenced the earlier sanctions motion filed in November 2013 and described the focus of the second motion as “Veripic’s false discovery responses and false deposition testimony.” Defendants asserted that the trial court had the authority to award monetary sanctions pursuant to sections 2023.010 and 2023.030. In the second sanctions motion, defendants claimed that they had incurred substantial costs as a result of plaintiffs’ discovery misconduct, stating that “had VeriPic truthfully responded to discovery and produced their emails instructing Big Biz to register Foray’s trade name and direct visitors to Veripic’s website, this case would have 9 been over before it started, saving Foray $4 million in litigation costs.” Defendants explained that the trial court had instructed them at the May 12 hearing not to file “specific information regarding the amount of attorneys’ fees and costs” they had incurred and sought as sanctions. “Consequently, [defendants] will need to submit specific information regarding the amount of attorneys’ fees and costs [defendants] incurred before asking for a specific amount as sanctions,” but defendants asserted they were “entitled to an [o]rder” that VeriPic and Grellas Shah LLP are liable for sanctions for misuse of discovery “in an amount to be determined by the Court after further briefing.” VeriPic and Kwan opposed the July 2, 2014 motion. Among other arguments in opposition, they contended that shifting the cost of litigation from defendants to VeriPic would be punitive. Plaintiffs’ former counsel, Grellas Shah LLP, Dhaivat Shah, and George Grellas separately filed an opposition to the July 2, 2014 motion and argued there was no evidence to support discovery sanctions against them. On December 12, 2014, the trial court issued an interim order on its OSC and on defendants’ sanctions motion. Pursuant to its inherent authority to impose sanctions, the trial court stated in the interim order that it intended to dismiss VeriPic’s remaining claims with prejudice.4 In addition, the trial court intended to order as restitution that Kwan and VeriPic return attorney fees and costs amounting to $83,184.33 that they had received earlier in the litigation in connection with a motion related to California’s anti- SLAPP statute and to order defendants to pay the trial court $22,000 for costs incurred by the court. The trial court stated in the interim order that it did not intend to impose any sanctions on Grellas Shah LLP or on its individual attorneys. The court rested this 4 By this time, plaintiffs’ only remaining claims (asserted solely by VeriPic) were the fifth, tenth, and eleventh causes of action. On March 21, 2014, Kwan’s counsel represented to the court that Kwan no longer had any personal claims at issue. 10 decision on due process grounds, reasoning that the law firm and its individual attorneys were unable to defend themselves by testifying about communications with their former clients because of Kwan’s assertion of the Fifth Amendment privilege at the March 2014 evidentiary hearing. The trial court did not address whether the evidence showed that the attorneys had in fact advised plaintiffs to engage in discovery misconduct. As to defendants’ motion for sanctions and for attorney fees, the trial court stated that an order that Kwan and VeriPic pay attorney fees incurred by Foray “could be considered as punishment.” Therefore, the court intended to deny defendants’ request for monetary sanctions. During a hearing held on December 12, 2014, on the court’s interim order, defendants expressed concern that the order did not award defendants the attorney fees it had requested for “discovery abuse.” The trial court commented, “Are you trying to get – the four million dollars I cannot imagine is entirely related to discovery fees.” Defendants’ counsel responded, “We agree with that, Your Honor. Therefore, we ask permission to submit the evidence on what fees were incurred as a result of abuse of discovery by Mr. Kwan.” Co-counsel for defendants added, “If I may, Your Honor. Our argument is essentially Slesinger. If with our initial discovery way way back in the beginning of this case the truth had been told instead of the falsehoods, the entire case would have taken a very very very different turn and we would not have incurred four million. Now, there would be an argument about how much we would have incurred, but had the motion been brought with the accurate information that we have today, all of the motion practice that was done would have been very very different. And our first swing is we want it all back and they will respond, well, wait a minute some of this would have been incurred and we will have to concede that.” The trial court stated that it did not think it needed to “revisit” the request for attorney fees when defendants’ counsel suggested scheduling an additional motion on attorney fees. The trial court commented that “there may be further opportunities for you 11 to seek your fees” but that “right now we need to focus on getting the case concluded now that this piece of it is nearly wrapped up.” D. July 9, 2015 Sanctions Order On July 9, 2015, the trial court issued its final order on sanctions, which is the order that is the subject of these appeals. With respect to false statements made to the court, the trial court found that the “Kwan emails, quoted in the Court’s OSC, demonstrate that Kwan’s statements in declarations sworn under penalty of perjury and filed with the Court were false; that Kwan made false statements under oath in declarations submitted to the Court under penalty of perjury; and that Kwan and VeriPic filed multiple verified pleadings that contained false statements of fact.” The trial court further found that Kwan and VeriPic committed “ ‘fraud on the court’ ” including by pursuing frivolous claims for more than five years and expanding their claims despite knowledge of the falsity of the essence of its allegations. With respect to discovery, the trial court found in its order that Kwan and VeriPic “took steps to spoliate evidence, in that Kwan and VeriPic took affirmative steps to hide, conceal, and suppress relevant evidence related to its own claims and their defense of affirmative claims by the Defendants.” It found that VeriPic’s “bad faith misconduct” included the manufacture and spoliation of evidence. It stated that Kwan and VeriPic withheld and attempted to conceal or alter evidence “that would have shown that Kwan’s sworn statements filed with the Court, deposition testimony, and the pleadings and claims made in this case were false, and that VeriPic, through Kwan, presented claims that they knew were without evidentiary basis.” Based on its inherent authority to address fraud on the court and citing to Slesinger, the trial court dismissed with prejudice VeriPic’s remaining claims. Pursuant to its inherent authority, the trial court ordered Kwan and VeriPic to pay $22,000 to the court as a monetary sanction for their fraud on the court. It also ordered that, as a form of 12 restitution, Kwan and VeriPic disgorge $83,184.33 in attorney fees and costs that were previously ordered to be paid to them in the prior anti-SLAPP ruling. Consistent with its prior interim ruling in December 2014, the trial court did not award attorney fees to defendants under section 2023.030 of the Civil Discovery Act, as defendants had requested in their sanctions motions. Addressing sanctions for VeriPic’s misuse of the discovery process pursuant to the Civil Discovery Act, the trial court stated in its July 9, 2015 order that, “[i]n light of the Court’s ruling . . . ordering dismissal of VeriPic’s claims, the Court declines to award sanctions pursuant to the Discovery Act and Code of Civil Procedure section 2023.030.” The trial court’s final order on sanctions does not otherwise address or analyze section 2023.030. In a section of the order titled “Foray’s motions,” the trial court stated, “For the reasons stated in the Court’s December Interim Order, the motion by Defendant Foray for terminating and monetary sanctions against Kwan, VeriPic and Grellas Shah pursuant to section 128.7, and as a misuse of the discovery process, is DENIED.” The relevant language in the trial court’s December interim order reads: “Defendant Foray also moved for terminating and monetary sanctions against Kwan, VeriPic and Grellas Shah pursuant to Code of Civil Procedure section 2023.030, as a misuse of the discovery process. As to the motion’s request for monetary sanctions, the supporting memorandum fails to state any amount sought. More recently, Foray filed a motion for attorney fees with new factual bases for its motion—apparently realizing the original motion’s deficiencies—and now seeks $4 million. The initial motion did not reference any such amount. The Court finds that it would not be proper for the Court to order attorney fees incurred by Foray for defense of the Plaintiffs’ claims based on the Court’s OSC based on fraud on the Court, as such an award could be considered as punishment for the misconduct the Court has found has occurred.” 13  Pursuant to the trial court’s interim and final sanctions orders, defendants did not receive any of the monetary sanctions they had requested.5 E. Appeals and Judgment The parties have filed a number of appeals related to the trial court’s rulings in this case. To clarify the scope of our opinion, we set out the procedural history of these appeals. 1. Prejudgment Appeals (H042715) Prior to the issuance of any judgment, a number of the parties filed notices of appeal of the trial court’s July 9, 2015 order. On August 6, 2015, VeriPic filed a notice of appeal of the July 9, 2015 order, including the issuance of terminating sanctions. VeriPic filed a notice of abandonment of that appeal in February 2017. On August 7, 2015, Kwan filed a notice of appeal of the portion of the July 9, 2015 order that assessed monetary sanctions against him in the amount of $22,000 payable to the court clerk and the disgorgement of $83,184.33 in attorney fees previously awarded to him and VeriPic. Kwan later filed a notice of abandonment of that appeal. On September 8, 2015, the individual defendants—Hennings, Slaughter, Temple, and Witzke—filed a notice of appeal of the portion of the July 9, 2015 order denying defendants’ motion for monetary sanctions against VeriPic, Kwan, and their counsel Grellas Shah LLP. This court assigned a single docket number of H042715 to all of these appeals. 5 On July 20, 2015, defendants moved for reconsideration of the July 9, 2015 order. In their supporting motion, defendants noted that there had been recent developments in Foray’s malicious prosecution claims (apparently filed in a separate lawsuit not at issue here) and that, as a result, the “monetary discovery sanctions denied in this Court’s Final Order may be Foray’s only avenue to recover the attorneys’ fees and costs that Foray incurred because of the discovery abuse” of Kwan and VeriPic. The trial court denied the motion for reconsideration, finding that defendants failed to show new or different facts, circumstances or law to justify reconsideration under section 1008. As defendants have not appealed that order or raised any issue as to it here, we do not consider it further. 14  2. Postjudgment Appeals (H043215) Following entry of judgments in November 2015 and January 2016, all of the parties filed notices of appeal. This court assigned case No. H043215 to all the postjudgment notices of appeal. a. November 4, 2015 Judgment and Appeals On November 4, 2015, the trial court entered judgment against plaintiffs and in favor of Foray in the amount of $251,000 to resolve the claims alleged in Foray’s cross- complaint. Following entry of judgment, in early January 2016, Kwan and VeriPic separately filed notices of appeal of the judgment and multiple orders, including the July 9, 2015 order. Kwan and VeriPic did not file an abandonment of those appeals in the trial court. On August 28, 2018, this court notified Kwan and VeriPic that their appeals might be dismissed if they did not file an opening brief. Kwan and VeriPic failed to file an opening brief in their appeals from the judgment. They have participated in the appellate proceedings only as a respondent to defendants’ appeals of the July 9, 2015 order. Therefore, we conclude Kwan and VeriPic have abandoned any appeal in No. H043215. Following Kwan’s and VeriPic’s appeal from the judgment, Foray timely filed a notice of cross-appeal. (See Cal. Rules of Court, rule 8.108(g)(1)). Foray’s amended notice of cross-appeal states that it is appealing the July 9, 2015 order “denying Foray’s motions for monetary sanctions” against plaintiffs and former plaintiffs’ counsel (George Grellas, Dhaivat Shah, and Grellas Shah LLP). Because Kwan and VeriPic have abandoned their own appeals, the sole appeal of the judgment we decide here is Foray’s cross-appeal challenging the July 9, 2015 order denying its motions for monetary sanctions. b. January 25, 2016 Judgment and Appeals On January 25, 2016, the trial court entered judgment against VeriPic in favor of the individual defendants Hennings, Slaughter, Temple and Witzke on VeriPic’s 15 complaint. Hennings, Slaughter, Temple, and Witzke timely filed a notice of appeal of that judgment, challenging the portion of the July 9, 2015 order that denied defendants’ motion for monetary sanctions against VeriPic, Kwan, and their counsel George Grellas, Dhaivat Shah, and Grellas Shah LLP. On March 10 and March 11, 2016, VeriPic and Kwan filed notices of appeal challenging multiple orders including the July 9, 2015 order. In 2017, VeriPic and Kwan affirmatively abandoned those appeals. 3. Scope of our Review This court previously ordered appeals H042715 and H043215 considered together for the purposes of briefing, oral argument, and decision.6 Based on the procedural history discussed above, including the multiple abandonments filed by Kwan and VeriPic and their failure to brief their appeals from the judgments, we conclude we have jurisdiction only over the appeals filed by Foray, Hennings, Slaughter, Temple, and Witzke that challenge the trial court’s July 9, 2015 order denying defendants’ motion for monetary sanctions against VeriPic, Kwan, and former plaintiffs’ counsel Grellas Shah LLP and partner Dhaivat Shah.7 We turn now to the merits of those appeals. II. DISCUSSION Defendants argue the trial court committed two errors in its July 9, 2015 order on sanctions. First, they contend that the trial court abused its discretion when it failed to 6 While the appeals docketed as No. H042715 were prematurely filed, the subsequent judgments issued by the trial court and this court’s order considering those prejudgment appeals together with the postjudgment appeals have cured any jurisdictional defect in the prejudgment appeals. (See Cal. Rules of Court, rule 8.104(d)(2).) 7 Shah began to represent VeriPic and Kwan in the lawsuit around October 2010, well after VeriPic had initiated the lawsuit. In addition to Shah, defendants also sought in their July 2014 motion sanctions against George Grellas, another Grellas Shah LLP partner who was involved at the inception of the lawsuit in 2009 and who supervised the work on the case. In their opening brief, defendants stated that they were abandoning their appeal as to him. Accordingly, we address only their challenge to the denial of sanctions against Dhaivat Shah and Grellas Shah LLP. 16 award any monetary sanctions against plaintiffs Kwan and VeriPic pursuant to section 2023.030, subdivision (a), for misuse of the discovery process. Second, they assert the trial court erred in deciding defendants were not entitled to any monetary sanctions from former plaintiffs’ counsel, who (in defendants’ view) advised Kwan and VeriPic to engage in misuse of the discovery process. A. General Legal Principles 1. Standards of Review We review the trial court’s sanctions order for abuse of discretion. As the trial court has broad discretion in selecting sanctions, “we will reverse the trial court only if it was arbitrary, capricious, or whimsical in the exercise of that discretion.” (Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154 , 191 (Department of Forestry).) “A trial court abuses its discretion, however, when its ruling ‘rests on an error of law.’ ” (People v. Doss (2014) 230 Cal.App.4th 46 , 54.) “[I]n reviewing the trial court’s determination, ‘[w]e defer to the court’s credibility decisions and draw all reasonable inferences in support of the court’s ruling.’ [Citation.] To the extent the trial court’s decision to issue sanctions depends on factual determinations, we review the record for substantial evidence to support those determinations. [Citation.] Thus, our review ‘ “begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination [of the trial court].” ’ ” (Department of Forestry, supra, 18 Cal.App.5th at p. 192.) “ ‘To the extent that reviewing the sanction order requires us to construe the applicable discovery statutes, we do so de novo, without regard to the trial court’s ruling or reasoning.’ ” (Clement v. Alegre (2009) 177 Cal.App.4th 1277 , 1286.) 17  2. Monetary Sanctions Under Section 2023.030 Subdivision (a) of the Civil Discovery Act Section 2023.030, subdivision (a) (hereafter section 2023.030(a)), of the Civil Discovery Act delineates the trial court’s statutory authority to issue discovery sanctions in the form of monetary sanctions.8 Section 2023.030(a) states in relevant part: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Italics added.) The last sentence of section 2023.030(a) limits the trial court’s discretion to decline to impose monetary sanctions for violations of the discovery rules. “[M]onetary sanctions, in an amount incurred, including attorney fees, by anyone as a result of the offending conduct, must be imposed unless the trial court finds the sanctioned party acted with substantial justification or the sanction is otherwise unjust.” (Department of Forestry, supra, 18 Cal.App.5th at p. 191, italics added.) Section 2023.010 sets forth a non-exhaustive list of misuses of the discovery process, stating in pertinent part that misuses of the discovery process include, but are not limited to, “making an evasive response to discovery.” (§ 2023.010, subd. (f).) Although 8 Defendants’ briefing on appeal refers to a different provision of the Civil Discovery Act (section 2030.30), but their briefing quotes the applicable language of section 2023.030. Moreover, section 2030.30 appears to have no application here because it relates generally to the permissible amount of written interrogatories that a party may propound in discovery. Defendants’ briefing in the trial court focused on section 2023.030, as does respondents’ briefing in this court. We therefore assume defendants’ reference to section 2030.30 was an error that did not prejudice respondents and focus our analysis on section 2023.030. 18 not expressly included in the list of misuses in section 2023.010, courts have held that “[o]ther sanctionable discovery abuses include providing false discovery responses and spoliation of evidence.” (Department of Forestry, supra, 18 Cal.App.5th at p. 191.) Discovery sanctions serve to remedy the harm caused to the party suffering the discovery misconduct. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246 , 1259.) Because discovery sanctions are not designed to punish, “ ‘sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party’s misconduct.’ ” (Id. at pp. 1259–1260.) With these principles in mind we review the trial court’s July 9, 2015 order that denied defendants’ request for monetary sanctions for plaintiffs’ and former plaintiffs’ counsel’s discovery misconduct. B. Sanctions Against Plaintiffs Kwan and VeriPic Defendants assert that section 2023.030(a) of the Civil Discovery Act mandates that the trial court impose a monetary sanction for Kwan’s and VeriPic’s discovery wrongdoing, and the trial court abused its discretion in denying them any monetary sanctions. For the reasons explained below, we agree and remand to the trial court with directions. As noted above, when the Civil Discovery Act authorizes a monetary sanction, the trial court must impose such a sanction, unless the offending party acted with substantial justification or the imposition of the sanction would be unjust. (§ 2023.030(a); Department of Forestry, supra, 18 Cal.App.5th at p. 191.) Here, the trial court found that Kwan and VeriPic engaged in egregious litigation conduct that included abuses of the discovery process. In its July 9, 2015 order, the trial court expressly found that Kwan’s sworn deposition testimony (along with declarations he filed with the trial court) were false and that VeriPic’s “bad faith misconduct” included the “spoliation of evidence.” 19 Nevertheless, the trial court concluded that granting defendants’ motion for monetary sanctions “could” be considered an act of punishment against plaintiffs and denied defendants’ motion seeking the fees and costs they incurred as a result of VeriPic’s and Kwan’s discovery misconduct. The trial court’s July 9, 2015 order, which contains specific findings that VeriPic and Kwan engaged in extensive and deliberate misconduct, implicitly concludes that neither Kwan nor VeriPic was acting with substantial justification in the course of discovery. Substantial evidence supports that determination. “[T]he phrase ‘substantial justification’ has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424 , 1434.) We decide there is no basis in the record to affirm the trial court’s order denying monetary sanctions on the grounds that Kwan’s or VeriPic’s discovery misconduct was substantially justified, and neither Kwan nor VeriPic argue that it was. Therefore, the trial court’s refusal to award monetary sanctions turns on the second exception in section 2023.030(a)—namely whether “the imposition of the sanction [would be] unjust.” In general, discovery sanctions may not be imposed as a punishment. “Courts have continued to uphold the principle . . . that sanctions may not be imposed solely to punish the offending party. . . . Furthermore, the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” (Rutledge v. Hewlett- Packard Co. (2015) 238 Cal.App.4th 1164 , 1193; see also Siry Investment., L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098 , 1117, review granted July 8, 2020, S262081 [explaining that “discovery sanctions . . . ‘protect the interests of the party entitled to[,] but denied[,] discovery,’ not to ‘punish[]’ the noncompliant party”].) We recognize that our review of the trial court’s sanctions award is deferential, but we must ensure the trial court has followed the applicable statute. (See Diepenbrock v. 20 Brown (2012) 208 Cal.App.4th 743 , 749 [finding sanctions order issued under section 2023.030(a) to be error].) We decide that no substantial evidence in the record supports the trial court’s conclusion that imposition of any monetary discovery sanction against Kwan and VeriPic would constitute punishment. While the trial court cited a concern over punishment, a careful reading of its order shows that it imposed no sanctions of any kind on plaintiffs for their discovery abuses, even as the trial court clearly found plaintiffs had engaged in behavior that violated the Civil Discovery Act. The trial court’s order granting terminating sanctions was based on plaintiffs’ fraud on the court—not on the discovery misconduct they visited on defendants. Similarly, the disgorgement of fees and costs previously awarded was based on principles of restitution for plaintiffs’ overall “wrongful conduct” rather than to address or sanction any particular discovery misconduct. Indeed, the trial court never referred to this disgorgement remedy as a form of “sanctions” in either its interim order or in the July 9, 2015 order. While plaintiffs argue that the trial court may have determined that monetary sanctions were unjust because the trial court had awarded other sanctions pursuant to its inherent authority, they cite no authority for the proposition that the trial court’s imposition of other sanctions, such as terminating sanctions, has any bearing on the legal question of whether defendants were also entitled to an award of the compensable fees mandated by section 2023.030(a). Our independent research has also not found any such authority. In addition, the trial court did not reference such a concern in its order denying monetary sanctions. It appears from the language of the interim order that the trial court may have been concerned with the overall amount of the attorney fees—namely millions of dollars in defense costs—that defendants requested as a sanction for plaintiffs’ discovery abuses. For example, the trial court’s interim order states that Foray’s and Hennings’s memorandum supporting its initial request for sanctions under section 2023.030 did not seek monetary sanctions in a specific amount and the subsequent motion (filed after the 21 court’s OSC) requested $4 million. The trial court stated “Foray also moved for terminating and monetary sanctions against Kwan, VeriPic and Grellas Shah pursuant to Code of Civil Procedure section 2023.030, as a misuse of the discovery process. As to the motion’s request for monetary sanctions, the supporting memorandum fails to state any amount sought. More recently, Foray filed a motion for attorney fees with new factual bases for its motion—apparently realizing the original motion’s deficiencies—and now seeks $4 million. The initial motion did not reference any such amount.” The trial court decided that “it would not be proper for the Court to order attorney fees incurred by [defendants] for defense of the Plaintiffs’ claims based on the Court’s OSC based on fraud on the Court, as such an award could be considered as punishment for the misconduct the Court has found has occurred.” Given the record here, we decide the trial court abused its discretion in reaching this conclusion. While the consideration of punishment might well influence the amount of monetary sanctions the trial court should award, it has no bearing on the threshold question of whether defendants were statutorily entitled under section 2023.030(a) to at least some monetary sanctions for the reasonable attorney fees they incurred as a result of Kwan’s and VeriPic’s misuse of the discovery process. We also note that Hennings’s and Foray’s initial supporting memorandum of points and authorities dated November 2013, although it did not state a specific amount in sanctions, did generally seek monetary sanctions pursuant to section 2023.030 and contended they had expended millions of dollars due to Kwan’s misconduct. In addition, the Greenan Declaration supporting their motion further stated a specific amount (at that time, $3 million) that Foray and Hennings had expended to “defend against VeriPic’s claims.” The amount of attorney fees sought by defendants as monetary sanctions, or any discrepancy in the amount sought in the two sanctions motions, do not on these facts satisfy the “unjust” exception to section 2023.030(a). As one treatise notes, the unjust exception “may excuse monetary sanctions where the party to be sanctioned is 22 impoverished and monetary sanctions would cause a hardship disproportionate to the discovery misuse.” (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2020) § 8:1973.) That circumstance has no application here. While on remand the trial court may well decide not to award the full amount of monetary sanctions requested by defendants, we decide that it was arbitrary and an abuse of its discretion for the trial court to decline to award any amount of monetary sanctions in light of its explicit finding that discovery misconduct, in the form of false deposition testimony and spoliation of evidence, had occurred. Applying all presumptions in the trial court’s favor and having carefully reviewed the record, we are unable to discern substantial evidence that would render the imposition of monetary sanctions in any amount “unjust” within the meaning of section 2023.030(a).9 For these reasons, we reverse the portion of the July 9, 2015 order denying defendants’ motion for monetary sanctions under section 2023.030(a). Having concluded defendants are entitled to sanctions for the discovery misconduct found by the trial court—namely, Kwan’s false deposition testimony and VeriPic’s spoliation of evidence—and that neither the substantial justification nor the “unjust” exception under section 2023.030(a) applies, we remand the matter in order for the trial court to determine the appropriate amount of monetary sanctions to impose. (See § 2023.030(a) [“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process . . . pay the reasonable expenses, including attorney’s fees, incurred by 9 We have considered Kwan’s and VeriPic’s argument that the trial court “might” have “ignored” defendants’ motion of July 2, 2014, “as procedurally improper.” We are not persuaded the record supports the reasonable inference that the trial court viewed the July 2014 motion as improper on procedural grounds or that it prohibited defendants from filing its July 2014 motion. Cowan v. Krayzman (2011) 196 Cal.App.4th 907 , upon which plaintiffs reply, is distinguishable, including because both the November 2013 and July 2014 motions sought monetary sanctions for plaintiffs’ discovery misconduct. We decide there is no basis in the record for VeriPic’s and Kwan’s claim that the trial court considered the second motion to be unauthorized. 23 anyone as a result of that conduct.”].) We direct the trial court to order Kwan and Veripic to pay that amount to defendants as a monetary sanction, and we leave its determination to the trial court’s sound discretion. C. Sanctions Against Former Plaintiffs’ Counsel We now turn to defendants’ claim for monetary sanctions against former plaintiffs’ counsel: the law firm of Grellas Shah LLP and Dhaivat Shah, a partner at the firm. Defendants contend the trial court abused its discretion by refusing to impose monetary sanctions against counsel for advising VeriPic and Kwan in their discovery abuse. On appeal, defendants argue counsel “knew their clients were lying” by February 2012, when David Lai testified and then later changed his testimony and that “[n]onetheless, they advised their clients to continue litigating their claims ‘full speed ahead,’ without correcting their false discovery responses or preventing further known discovery abuses, and apparently without any investigation to confirm they were not continuing to prosecute claims based on additional misrepresentations and discovery abuses.” Grellas Shah LLP and Shah have filed a joint respondents’ brief arguing that the trial court did not abuse its discretion in denying sanctions as to them on due process grounds, and there is no evidentiary basis in the record to support the conclusion that they advised their former clients Kwan and VeriPic to engage in discovery abuse. We review the trial court’s decision whether to impose sanctions on counsel pursuant to section 2023.030(a) for abuse of discretion. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853 , 878.) Defendants have the burden of demonstrating error by the trial court. (Ibid.) On appeal, we must affirm the ruling denying the motion for monetary sanctions if it is correct on any theory, even if the trial court’s reasoning was erroneous. (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887 , 906–907.) 24  1. Additional Background In February 2012, Shah represented third-party David Lai at his first deposition in the lawsuit. David Lai was the former president of BigBiz (VeriPic’s Internet service provider during the pertinent time period) and had known Kwan since childhood. Defendants’ counsel questioned David Lai about a letter he wrote to VeriPic dated March 12, 2010, in which Lai stated he was writing to “confirm” that BigBiz registered the domain name www. Foray.ca for VeriPic, and that VeriPic “did not ask for traffic to the website domain www.Foray.ca. to be referred to the www.VeriPic.com website.” The letter also stated that BigBiz had conducted a “trademark search” and concluded that the registration of that Foray domain was “proper” and “unrestricted” under the authority governing Internet domain registrations. Lai testified at his deposition that he had never conducted a trademark search and had taken this language for his letter from “the Internet.” After this line of questioning, a lunch recess was taken. Following the lunch recess, Shah returned on the record and stated, “During the lunch break it became apparent that there is – there was a material disagreement with the witness and a conflict that will require Mr. Lai to seek separate counsel.” On that basis, Shah suspended the deposition. Shortly thereafter, David Lai submitted an errata sheet dated March 2012 that made substantive changes to his deposition testimony, including altering his testimony to state that Kwan had provided the wording of certain letters, including the March 12, 2010 letter. The errata sheet stated the reason for the changes in his deposition transcript were “arguing among attorneys/confusion/stress.” Represented by new counsel, David Lai was deposed again in April 2012. He testified that Kwan had provided a portion (via e- mail) of the March 12, 2010 letter to him. At this second deposition, David Lai stated that Kwan had supplied him with the language that a “trademark search” had been conducted with respect to the use of the Foray name. Lai stated that the search language 25 was “not something that I would probably come up with” and that, in fact, BigBiz did not do a trademark search as represented in the letter. Following the David Lai depositions, Grellas Shah LLP remained counsel of record for Kwan and VeriPic and participated in subsequent discovery-related matters. For example, in October 2013, Shah sent an e-mail to defendants’ counsel confirming he would represent Kwan (as the corporate representative or person most knowledgeable (PMK) for VeriPic) at deposition. In a separate e-mail dated October 24, 2013, Shah wrote to defendants’ counsel to confirm that there were “no documents to produce” in response to plaintiffs’ request for documents contained in the notice of deposition for the PMK deposition. On January 21, 2014, Kwan appeared for the PMK deposition as a representative for VeriPic, represented at the deposition by Shah. Kwan declined to testify at the deposition and instead asserted his Fifth Amendment privilege. Prior to the evidentiary hearing in March 2014, Shah submitted a declaration dated December 6, 2013, in which he asserted that VeriPic’s counsel did not engage in or encourage the spoliation of evidence. Shah testified at the March 2014 evidentiary hearing on Foray’s and Hennings’s sanctions motion. Shah stated that he had seen two letters from David Lai, including the March 12, 2010 letter, and that he had also seen the errata sheet completed by Lai. Counsel for Kwan objected on various grounds, including Kwan’s Fifth Amendment privilege, to numerous questions posed by defendants’ counsel to Shah and Grellas. The trial court sustained a number of those objections. For example, the trial court sustained an objection on Fifth Amendment grounds to the question posed to Shah of whether Shah had contacted either David Lai or Henry Lai to ask them if there were any documents they had that were authored by Kwan. At the conclusion of the hearing, Shah argued and discussed the evidence that had been admitted at the hearing. Shah argued that the “only thing” Lai had corrected in his deposition was that “Kwan may have given me some part of the language to use in those 26 letters” and contended that there was insufficient evidence for the trial court to conclude Shah was “derelict in [his] duties.” The trial court did not comment on Shah’s argument. In September 2014, Grellas Shah LLP and Shah filed an opposition to the July 2014 motion for sanctions. They opposed the sanctions motion on a number of grounds, including that there was no evidence they advised their clients to engage in discovery misconduct. In their briefing, they pointed to evidence they had submitted previously in response to the trial court’s OSC. This evidence included a declaration from Shah dated July 23, 2014, in which Shah denied that he had instructed David Lai to “make statements against his interests or in favor of plaintiffs’ interests” or “to provide untruthful testimony.” Grellas Shah LLP and Shah further argued that nothing in the February 2012 deposition of David Lai put them on notice that Kwan’s prior representations on the issue of the direction of domain traffic were false. Shah asserted in his July 23, 2014 declaration that his firm received Lai’s errata sheet in 2012 that reflected a “change in Mr. Lai’s prior testimony,” but Lai’s new testimony reflected in his errata sheet was “not inconsistent with Mr. Kwan’s prior testimony” at his deposition because Kwan had testified that “he may have provided some of the wording to Mr. Lai for [the March 2010 BigBiz] letters.” Shah did not address the language in the March 2010 letter regarding the trademark search, but rather stated that “the only issue relevant to VeriPic’s claims” was that “VeriPic did not direct BigBiz to forward the disputed domains to veripic.com or propictus.com” and that Lai’s testimony had remained consistent on that issue. In addition, in their opposition to the sanctions motion, Grellas Shah LLP and Shah noted that the trial court had ordered them not to testify as to certain questions based on Kwan’s assertion of his Fifth Amendment privilege and argued that “due process prevents the Court from imposing monetary sanctions in the form of a fee award against Grellas Shah because the Grellas Shah attorneys’ ability to speak on their own behalf and defend against the award of attorney’s fees is severely hampered by their 27 ethical duty of confidentiality, the attorney-client privilege and the invocation of the Fifth Amendment privilege by their former client John Kwan.” In its July 9, 2015 order, the trial court adopted Grellas Shah LLP’s due process argument and declined on that basis to impose any sanctions on Grellas Shah LLP or its attorneys. The trial court concluded that “due process prevents the Court from imposing sanctions against Grellas Shah and its attorneys because they cannot provide a complete response to the OSC because of the exercise of the Fifth Amendment privilege by their client, John Kwan, and the duty of loyalty owed to their former clients.” 2. Legal Principles By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256 , 261.) “Unlike monetary sanctions against a party, which are based on the party’s misuse of the discovery process, monetary sanctions against the party’s attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney’s actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195 , 200 (Corns).) Because an attorney’s advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201; Ghanooni, at p. 262.) 3. Analysis We begin with the threshold constitutional due process issue. We understand the due process claim—which Grellas Shah LLP and Shah renew here—to be procedural. In its ruling, the trial court noted that counsel was unable to provide a “complete” defense 28 based on Kwan’s invocation of his Fifth Amendment privilege at the March 21, 2014 evidentiary hearing. We review procedural due process claims de novo because “ ‘ “the ultimate determination of procedural fairness amounts to a question of law.” ’ ” (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938 , 944.) At its core, due process entitles a person to notice and the opportunity to be heard before a neutral decision-maker. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197 , 212; Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81 , 90.) A court may impose sanctions “after notice to any affected party, person, or attorney, and after opportunity for hearing.” (§ 2023.030.) “ ‘Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.’ ” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199 , 208; see also Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63 , 70 [holding that due process mandates adequate notice and opportunity to be heard prior to the imposition of sanctions].) Mindful of these principles and based on an independent review of the record, we do not agree with the trial court that due process mandated that sanctions be denied against Grellas Shah LLP or Shah individually based on Kwan’s invocation of the Fifth Amendment privilege. In the trial court, Grellas Shah LLP and Shah filed briefs and declarations in their defense, including in response to the trial court’s order to show cause, and appeared at the March 21, 2014 hearing to defend themselves against the request that sanctions be imposed on them. They filed another response to defendants’ July 2014 motion. On this record, we conclude that they received adequate notice and opportunity to be heard on the issue of whether they advised discovery abuse perpetrated by VeriPic and Kwan. That their former client Kwan chose to invoke his Fifth Amendment privilege as to certain questions posed by defendants’ counsel did not preclude the trial court as a matter of due process from deciding whether counsel was liable for discovery sanctions under section 2023.030(a). 29  Having rejected the due process rationale relied upon by the trial court, we next consider the state of the record about the advice on discovery issues given by Grellas Shah LLP and Shah to Kwan and VeriPic. The trial court’s order rests exclusively on due process, and the court does not appear to have made any factual findings—either explicitly or impliedly—about whether Grellas Shah LLP or Shah advised plaintiffs to engage in discovery misconduct. Under these circumstances, we independently review the record. (See Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal.App.5th 1090 , 1098.) We note that appellants bear the burden on appeal of demonstrating error and observe that they have not appealed any of the trial court’s evidentiary rulings from the March 21, 2014 hearing on defendants Foray’s and Hennings’s sanctions motion. There is therefore little evidence in the record about what Grellas Shah LLP and Shah actually advised plaintiffs to do with respect to discovery. We have carefully examined the evidence that is in the record. Based on that review, we conclude that there is direct evidence that Grellas Shah LLP and Shah did not advise plaintiffs to engage in the misuse of the discovery process, and no substantial evidence undermines that assertion. In a declaration from December 2013 signed under penalty of perjury, Shah asserted that Grellas Shah LLP had not advised Kwan to engage in the conduct with respect to the domain names described in Kwan’s May 2010 e-mails. He also stated that Grellas Shah LLP had not instructed VeriPic or Kwan to spoliate any evidence. In his July 2014 declaration, also signed under penalty of perjury, Shah affirmatively stated that he did not instruct David Lai to provide untruthful testimony. He also asserted that Grellas Shah LLP did not withhold from production in discovery any nonprivileged responsive document. Shah stated he had conducted his representation of plaintiffs in this matter “in conformance with the highest ethical standards.” There is therefore substantial evidence in the record that neither Grellas Shah LLP nor Shah advised Kwan or VeriPic to engage in discovery misconduct. The evidence here is unlike that in Corns, supra, 181 Cal.App.3d 195 , where the Court of Appeal held 30 that an attorney had not met his burden of proof in opposing sanctions where the attorney had not submitted any opposition to the motion for sanctions and had not appeared at the hearing on the motion. (Id. at p. 201.) In support of their argument for reversal of the trial court’s order, defendants point to various categories of misconduct following the first David Lai deposition in February 2012, such as counsel’s involvement in continuing to rely on Kwan’s false testimony in declarations to support and oppose dispositive motions, the overall expansion of the scope of litigation by the filing of a fifth, sixth and finally a seventh amended complaint, counsel’s failure to supplement or correct prior discovery responses, and their participation in continuing to proffer Kwan as a corporate witness. As a threshold matter, we are not persuaded that most of the conduct falls under section 2023.030, which is limited to discovery abuses. The propriety of the overall conduct of the litigation by Grellas Shah LLP or Shah is not before us. We express no opinion about whether Grellas Shah LLP’s or Shah’s conduct amounted to litigation misconduct that might have been appropriately sanctioned pursuant to other authority. With respect to the conduct cited by defendants that does relate to discovery, we note that defendants do not point to any direct evidence that Grellas Shah LLP or Shah advised Kwan or VeriPic to misuse the discovery process. Rather, we understand defendants to assert that there is evidence in the record from which we may infer that counsel knew in February 2012 that their clients were lying and thereafter engaged in discovery that perpetuated these lies. For example, defendants’ opening brief generally argues that counsel advised plaintiffs to submit “false supplemental discovery responses” but does not explain which responses it is referring to or point to any direct evidence supporting their contention that counsel advised any misuse of discovery. In their reply brief, defendants cite generally to a supplemental declaration from defendants’ counsel filed in the trial court that attached VeriPic’s and Kwan’s responses to supplemental special interrogatory responses dated 31 March 2013. These supplemental discovery responses were verified by Kwan on March 21, 2013, and signed by David Siegel, an attorney from Grellas Shah LLP.10 There is no evidence based on these responses, even when read in conjunction with the rest of the record, including the excerpts from the David Lai depositions and his errata, that Grellas Shah LLP or Shah knew that Kwan was lying at that point, let alone that they then advised misuse of the discovery process.11 Similarly, regarding the proffering of Kwan as a corporate witness for VeriPic in January 2014, approximately two years after the first Kwan deposition in January 2012 and David Lai depositions in 2012, there is no evidence in the record to support defendants’ conclusory allegations that counsel advised Kwan to continue to proffer false statements. In their reply brief, defendants reference numerous pages from the trial court’s OSC but do not point to any specific finding in the trial court’s OSC that Grellas Shah LLP or Shah advised any misuse of the discovery process. There is no evidence in the record about how or what counsel advised plaintiffs with respect to the Kwan PMK deposition. This topic was not explored at the evidentiary hearing on March 21, 2014. 10 David Siegel is not a party in this appeal. He was an associate at Grellas Shah LLP who worked on the matter. The trial court named Siegel in its OSC, as he had made various submissions to the trial court such as declarations. Defendants’ motion for sanctions in July 2014 did not specifically seek sanctions against him, and the trial court did not make any specific findings as to him (or any of the other individual attorneys from the firm) in its July 9, 2015 final order. 11 In their opening brief, appellants pointed to the 2012 David Lai deposition and his errata altering some of his testimony in support of their contention that the attorneys advised abuse of the discovery process. However, in their reply brief and at oral argument, counsel for appellants also argued that the production of documents by David Lai shortly following that deposition also alerted Grellas Shah LLP that Kwan was lying. In particular, appellants referenced documents that showed that VeriPic had registered a large number of domain names and, in their view, demonstrate “Veripic’s organized scheme over several years to misdirect internet users.” We do not agree that this information about the number of domain names constitutes substantial evidence that either Grellas Shah LLP or Shah knew Kwan was lying, let alone that the attorneys themselves advised misuse of the discovery process. 32 To the extent that defendants might have been able to develop facts at the evidentiary hearing on the sanctions motion had the trial court overruled Kwan’s objections to their testimony, defendants have not appealed those evidentiary rulings. Section 2023.030(a) by its terms requires a finding that an attorney has advised misuse of the discovery process before monetary sanctions may be imposed. We understand defendants’ observation about the difficulty of eliciting direct proof of such conduct in light of an attorney’s ethical obligations and privileges protecting attorney- client communications. However, the difficulty of carrying this burden stems from the statute itself, and we lack the authority to ignore its explicit statutory directive. Given the limited record developed in the trial court, we conclude there is not substantial evidence that either Grellas Shah LLP or Shah advised plaintiffs to engage in the misuse of the discovery process. Therefore, defendants have not persuaded us that the trial court erred in its decision to decline to award monetary sanctions against Grellas Shah LLP and Shah under section 2023.030(a). III. DISPOSITION Kwan’s and VeriPic’s appeals in No. H043215 are deemed abandoned. In the appeals of Hennings, Slaughter, Temple, and Witzke in Nos. H042715 and H043215 and in Foray’s appeal in No. H043215, the portion of the July 9, 2015 order denying defendants’ request for monetary sanctions pursuant to Code of Civil Procedure section 2023.030, subdivision (a), is reversed and remanded for further proceedings. The trial court is directed to order monetary sanctions against Kwan and VeriPic in favor of defendants Foray Technologies, LLC, Hennings, Slaughter, Temple, and Witzke for the reasonable expenses, including attorney fees, incurred by them as of result of VeriPic’s and Kwan’s misuse of the discovery process in an amount to be determined by the trial court. (§ 2023.030, subd. (a).) In all other respects, the judgments are affirmed. In the interests of justice, the parties shall bear their own costs on appeal. 33  ______________________________________ Danner, J. WE CONCUR: ____________________________________ Greenwood, P.J. ____________________________________ Grover, J. H042715, H043215 Kwan Software Engineering, Inc. et al. v. Foray Technologies, LLC et al. Trial Court: Santa Clara County Superior Court No. 109CV149780 Trial Judge: Hon. Mary Arand Counsel for Defendants/Appellants Chip B. Cox Thomas Hennings, David Witzke, James Greenan Michal Temple, Lynn Slaughter: Greenan, Peffer, Saooahder & Lally LLP H042715 Counsel for Plaintiffs/Respondents William Wallace Winters Kwan Software Engineering, Inc, Jim Erickson John Kwan: The Mlnarik Law Group, Inc. Counsel for Objectors/Respondents Merri A. Baldwin Grellas Shah LLP and Dhaivat Shah: Si Eun Lee Rogers Joseph O’Donnell . Counsel for Plaintiffs/Cross- William Wallace Winters defendants Kwan Software Jim Erickson Engineering, Inc., John Kwan: The Mlnarik Law Group, Inc. H043215 Counsel for Defendants/Cross- Chip B. Cox complainants/Appellants Foray James Greenan Technologies, LLC, David Witzke, Greenan, Peffer, Saooahder & Lally Michal Temple, Thomas Hennings, LLP Lynn Slaughter: Counsel for Objectors/Respondents Merri A. Baldwin Grellas Shah LLP and Dhaivat Shah: Si Eun Lee Rogers Joseph O’Donnell . H042715, H043215 Kwan Software Engineering, Inc. et al. v. Foray Technologies, LLC et al.

2020-12-02 23:02:21.405467+00

https://www.courts.ca.gov/opinions/nonpub/C090631.PDF

Filed 12/2/20 P. v. Zabala CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C090631 Plaintiff and Respondent, (Super. Ct. Nos. 19FE003434, 18FE021040) v. JEREMIAH RALPH ZABALA, Defendant and Appellant. Defendant Jeremiah Ralph Zabala pleaded no contest to criminal offenses in two separate cases; his sentences were doubled due to a strike prior. The trial court did not detail any fines or fees in its oral pronouncement of sentence. Defendant argues that fines and fees reflected in the abstract of judgment were not properly imposed and must be stricken.1 As we explain, we disagree and affirm the judgment. 1 Defendant initially argued his presentence credits were incorrect. The trial court subsequently amended the abstract of judgment to correct defendant’s custody credits. 1  BACKGROUND In case No. 18FE021040 (the 2018 case), defendant pleaded no contest to felony unlawful possession of a firearm (Pen. Code, § 29820).2 In case No. 19FE003434 (the 2019 case), defendant pleaded no contest to felony attempting to evade law enforcement by driving in the wrong direction (Veh. Code, § 2800.4), felony driving under the influence of alcohol causing injury or death (Veh. Code, § 23153, subd. (a)), and misdemeanor resisting arrest (§ 148, subd. (a)(1)). As to each case, defendant admitted a prior strike allegation based on a 2015 sustained petition for juvenile robbery. (§§ 667, subd. (b)-(i), 1170.12.) A probation report prepared for defendant’s sentencing recommended imposing various fines and fees, including restitution fines of $1,200 in the 2019 case and $300 in the 2018 case (§ 1202.4), a “suitable fine” in the range of $390 to $1,000, booking and jail classification fees, various costs including presentence report and investigation, “mandatory court operations assessment[s]” totaling $160 (§ 1465.8), and court facility fees totaling $120 (Govt. Code, § 70373). At the sentencing hearing, immediately after the trial court called the case and defense counsel waived formal arraignment, the court asked defense counsel if he wanted to be heard; counsel replied, “Just [to] ask the Court to reduce the fines and fees to either eliminat[e] them as possible or reduce to statutory minimum.” The court responded: “I’m prepared to do that” and then announced that it was in receipt of the probation report and had read and considered the report. The court then ordered the report “filed as part of (Pen. Code, § 1237.1.) In his reply, defendant concedes that his presentence credits are now correct. 2 Undesignated statutory references are to the Penal Code. 2 the record in this case.”3 Immediately thereafter, the court noted the probation report’s recommendation for custody time exceeded the plea agreement and confirmed with the prosecutor that the plea agreement’s recommendation stood. In another apparent reference to the report, the court then said: “All right. I am going to order this filed and will maintain jurisdiction for the purpose of restitution.” The trial court continued, “I will strike fees and fines. However, on page 11, item 8, I will impose five days in lieu of the fine . . . . [⁋] I’ll strike item 9 on page 11. Item 10 on page 12. I’ll also strike item 4 on page 13. I will strike the cost of investigation and presentence report.” The court then proceeded to address the custodial and credits portion of the sentence. As relevant here, the abstract of judgment reflects the minimum $300 restitution fines (§ 1202.4) in each of defendant’s two cases; $120 in conviction assessments (Gov. Code, § 70373), and $160 in court operations assessments (§ 1465.8). DISCUSSION Defendant’s sole remaining contention on appeal is that the restitution fines and two sets of fees described above should be deleted from the abstract of judgment because the trial court did not orally impose them.4 As we have detailed above, a close review of the transcript reveals that the trial court was working from the probation report and implicitly incorporating it by reference while orally pronouncing sentence. After indicating it had received and read the report, 3 The probation report was filed August 22, 2019, the same day as the sentencing hearing. 4 In his opening brief, defendant argued under People v. Dueñas (2019) 30 Cal.App.5th 1157 , the trial court’s imposition of non-penal fines without determining defendant’s ability to pay violated due process. In response, the People argued defendant forfeited this claim by failing to raise it in the trial court. Defendant expressly abandons this argument in his reply. 3 the court twice ordered it filed, the second time referring to “this,” which strongly suggests that the court had the report in its direct line of sight while speaking. The court then continued to specifically refer to the probation report, by page and item number. Our review of the report reveals page and item numbers that correspond with the trial court’s oral citations; those items contain interlineations consistent with the trial court’s oral pronouncements including “5 days in lieu of fine” printed in item 8 on page 11, lines through the booking and classification fees that appear as items 9, 10, and 4, on pages 11, 12, and 13, respectively, and another physical strikethrough of the recommended presentence report and investigation costs. There are additional indications that the trial court was working with the parties directly from the probation report, and thus implicitly incorporating its recommendations by reference during sentencing in a manner that resulted in the imposition of the minimum fees and fines now challenged on appeal. First, near the end of the short hearing and after the court referenced specific pages of the probation report, as we have set forth above, the court announced 152 actual days of credit, to which defense counsel responded that the announced “amount of time . . . is different than in the probation report.” Indeed, the report calculated 182 days of actual credit. The court responded that defendant was “serving a 30-day sentence,” which would account for the 30 day difference in the recommendation. Thus, it appears both the court and counsel were looking at the report at the time these observations were made. Second, after the court responded it was “prepared to do that” when asked by defense counsel to reduce fines to the minimum, implicitly granting the request, the $1,200 restitution fine recommended by the probation report as to the 2019 case is indeed reduced to the minimum $300, as reflected in the abstract of judgment. Third, the court did not specifically orally order the additional mandatory consequences of crimes of conviction listed as recommended components of the sentence by the report, such as driver’s license suspension and firearms relinquishment forms and requirements. The court only noted that it would 4 reduce the mandatory fines to the minimum, strike the non-mandatories, and then clarified certain other specific changes that appear interlineated in the report. The remainder of the recommendations were ordered by implicit incorporation of the probation report, and were properly included on the abstract of the judgment where appropriate. Although we agree that the record is not as detailed as would be ideal, it is sufficient to show that the minimum fines and fees were indeed imposed. DISPOSITION The judgment is affirmed. /s/ Duarte, Acting P. J. We concur: /s/ Hoch, J. /s/ Renner, J. 5

2020-12-02 23:08:13.592692+00

https://www.courts.mo.gov/file.jsp?id=169953

IN THE INTEREST OF: ) M.K.S, a minor child. ) ) LAWRENCE COUNTY JUVENILE ) OFFICE, ) ) Petitioner-Respondent, ) ) vs. ) No. SD36702 ) W.J.S., ) Filed: December 2, 2020 ) Respondent-Appellant. ) APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Scott S. Sifferman, Associate Circuit Judge AFFIRMED M.K.S. (“Child”) was taken into foster care in 2016, at five years of age, when her mother W.J.S. (“Mother”) was incarcerated for the second time in Child’s life for a parole violation; Mother was also incarcerated, and thus separated from Child, from 2012 to 2015. Child was in the care of family, but Children’s Services determined that the environment was inappropriate; she suffered from several medical and dental issues, as well as a mental disorder known as Reactive Attachment Disorder (“RAD”). RAD is 1 diagnosed in children who have a “consistent pattern of inhibited, emotionally withdrawn behavior toward adult care caregivers.” 1 A child suffering from RAD has generally experienced either social neglect or deprivation by having her emotional needs denied by adults or repeated changes in primary caregivers that allow for limited opportunities to form stable attachments to adults. Mother now claims in a single point relied on that it was not in Child’s best interest that her parental rights be terminated. We deny Mother’s point. When determining whether the termination of parental rights is in a child’s best interest, section 211.447.7, RSMo Cum.Supp. 2018, requires the court to consider the following factors: (1) The emotional ties to the birth parent; (2) The extent to which the parent has maintained regular visitation or other contact with the child; (3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency; (4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time; (5) The parent’s disinterest in or lack of commitment to the child; (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights; (7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm. There is no requirement that a certain number of factors be found against Mother before termination can take place. Interest of C.E.B., 565 S.W.3d 207 , 218 (Mo.App. S.D. 2018). The presence of a single factor could support the determination of a child’s best 1 See DSM-5 information regarding RAD: https://www.ncbi.nlm.nih.gov/books/NBK537155/ (last visited December 1, 2020). 2 interest when it is reviewed in the totality of the circumstances and that finding is a subjective assessment made by the trial court that is not reweighed by this Court. Id. The trial court found: (1) Child had no emotional ties to Mother, (2) Mother did not maintain contact with Child; (3) Mother failed to contribute to the cost of care of Child; (4) no services would bring about lasting parental adjustment to return Child to Mother’s care; (5) Mother lacked commitment to Child; and (6) Mother had felony convictions which would deprive Child of a stable home for a period of years. Those findings are clearly supported by the record. Child, as noted above, has spent roughly seven of her nine years out of Mother’s care. Although Mother was not allowed visitation because of her incarceration and upon recommendation of Child’s therapist, the fact remains that there are no emotional ties between Child and Mother. 2 Furthermore, Mother maintained contact through four letters (none since March 2018) and did not offer financial support with no explanation of her ability to pay or support Child. Finally, Mother was convicted of a felony with an unknown release date but it is expected to be in 2026. Thus, the court was free to find that Child will be deprived of a stable home for a period of years. Because Child has a diagnosis that she suffered from unstable care from adults, caused by Mother’s actions, and because she is in a home that is providing treatment and care for the condition, to move her again in anticipation of possible stability six years from now does not support Child’s best interest. The totality of the circumstances supports the finding that it is in Child’s best interest to terminate Mother’s rights. The point is denied. 2 Again, the issue before us is not whether Children’s Services erred in denying visitation for four years. The issue is whether at this point in time is it in the best interests of Child to sever the parental relationship. 3  The Judgment is affirmed. Nancy Steffen Rahmeyer, P.J. – Opinion Author Daniel E. Scott, J. – Concurs William W. Francis, Jr., J. – Concurs 4

2020-12-02 21:09:42.027008+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07238.htm

Turner v Owens Funeral Home, Inc. (2020 NY Slip Op 07238) Turner v Owens Funeral Home, Inc. 2020 NY Slip Op 07238 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2019-03215 2019-11698 (Index No. 606377/16) [*1]Shatima Turner, et al., respondents, v Owens Funeral Home, Inc., et al., appellants, North Shore-Long Island Jewish Medical Center, et al., defendants (and a third-party action). McCarthy & Associates, Melville, NY (Michael D. Kern of counsel), for appellants. C. Robinson & Associates, LLC, New York, NY (W. Charles Robinson of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for violation of the common-law right of sepulcher, the defendants Owens Funeral Home, Inc., Isaiah Owens, and Andrew Cleckley appeal from (1) an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered January 11, 2019, and (2) an order of the same court entered October 9, 2019. The order entered January 11, 2019, insofar as appealed from, denied the branch of those defendants' motion which was to dismiss the complaint insofar as asserted by the defendant Andre D. Turner on the ground of lack of capacity to sue. The order entered October 9, 2019, insofar as appealed from, upon renewal and reargument, adhered to the determination in the order entered January 11, 2019. ORDERED that the appeal from the order entered January 11, 2019, is dismissed, as that order was superseded by the order entered October 9, 2019; and it is further, ORDERED that the order entered October 9, 2019, is reversed insofar as appealed from, on the law, the determination in the order entered January 11, 2019, denying that branch of the motion of the defendants Owens Funeral Home, Inc., Isaiah Owens, and Andrew Cleckley which was to dismiss the complaint insofar as asserted by the defendant Andre D. Turner on the ground of lack of capacity to sue is vacated, and that branch of the motion is granted; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiffs' decedent, James Turner, died on December 28, 2011, while in the care of the defendants North Shore-Long Island Jewish Medical Center, North Shore-Long Island Jewish Health System, Inc., North Shore-Long Island Jewish Medical Care, PLLC, and North Shore-Long Island Jewish Medical Group (hereinafter collectively the hospital). On December 30, 2011, the plaintiffs asked that the decedent's body be released to their chosen funeral home; however, it is undisputed that the hospital had already released the body to the defendant Owens Funeral Home, Inc. (hereinafter the funeral home). The decedent's body was later transferred to the plaintiffs' preferred funeral home for burial. In February 2012, the plaintiffs commenced this action in the Supreme Court, Bronx County, against the funeral home, Isaiah Owens, and Andrew Cleckley (hereinafter collectively the defendants) and the hospital seeking, inter alia, to recover damages for interference with their common-law right of sepulcher. The Supreme Court, Bronx County, later granted the motions of the defendants and the hospital to change venue to Nassau County. In April 2012, the plaintiff Andre Turner (hereinafter Turner) filed a voluntary petition for Chapter 7 bankruptcy in the federal court in which he failed to list this action as an asset. Upon learning of Turner's bankruptcy, the defendants moved for leave to amend their answer and to dismiss the complaint insofar as asserted by Turner pursuant to CPLR 3211(a)(3) on the ground that he lacked capacity as a result of his bankruptcy filing in which he failed to list this action as an asset. The plaintiffs cross-moved, inter alia, for leave to amend the complaint and substitute the trustee as a party to the action. In an order entered January 11, 2019, the Supreme Court granted that branch of the defendants' motion which was for leave to amend their answer, but denied without prejudice that branch of their motion was to dismiss the complaint insofar as asserted by Turner. The court granted that branch of the plaintiffs' cross motion which was for leave to substitute the trustee as a party subject to its direction that Turner was to immediately serve the order on the bankruptcy trustee and petition the bankruptcy court for permission to substitute the trustee as a plaintiff in this action. The defendants moved for leave to renew and/or reargue that branch of their motion which was to dismiss the complaint insofar as asserted by Turner and their opposition to the plaintiffs' cross motion. In an order entered October 9, 2019, the Supreme Court granted the defendants leave to renew and reargue but, upon renewal and reargument, found that the plaintiffs had made a satisfactory showing that Turner had complied with the order entered January 11, 2019, and therefore adhered to its prior determination. The defendants appeal from both orders. "'[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets'" (Moran Enters., Inc. v Hurst, 160 AD3d 638, 640, quoting Rosenshein v Kleban, 918 F Supp 98, 104 [SD NY]; see Davis v Citibank, N.A., 116 AD3d 819, 821). "By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims" (Pereira v Meisenberg, 183 AD3d 768, 770 [internal quotation marks omitted]; Moran Enters., Inc. v Hurst, 160 AD3d at 640). "[O]nce a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (Pereira v Meisenberg, 183 AD3d at 770; see 11 USC § 541[a][1]). Accordingly, where a debtor has sought chapter 7 bankruptcy protection, "the causes of action formerly belonging to the debtor . . . [vest] in the trustee for the benefit of the estate . . . [and] [t]he debtor has no standing to pursue such causes of action" (Pereira v Meisenberg, 183 AD3d at 770 [internal quotation marks omitted]). In cases where a plaintiff-debtor has successfully petitioned the bankruptcy court to reopen the bankruptcy to include a pending action, this Court has invoked the doctrine of comity to permit substitution of the bankruptcy trustee as a plaintiff (see id. at 770-771; Fausset v Turner Constr. Co., 177 AD3d 702, 704; Matter of Long Is. Forum for Tech. v New York State Div. of Human Rights, 85 AD3d 791, 794). Here, however, the Supreme Court went further, directing Turner to seek such relief from the bankruptcy court and denying the defendants' motion to dismiss the complaint insofar as asserted by Turner, albeit without prejudice. We have made clear that our willingness to allow substitution of a trustee for a plaintiff/debtor who has failed to list an action as an asset in bankruptcy is based upon comity, i.e., upon respect for the orders of a sister court (see Matter of Long Is. Forum for Tech. v New York State Div. of Human Rights, 85 AD3d at 794). Here, however, there was no order to which the Supreme Court could grant comity, nor even any indication that Turner had sought such relief. Under these circumstances, the court should have granted that branch of the defendants' motion which was to dismiss the complaint insofar as asserted by Turner. Nevertheless, the trustee, if he or she should chose to re-commence the case in his or her own name, will enjoy the protection offered by CPLR 205 (see Pinto v Ancona, 262 AD2d 472, 473). In light of our determination, we need not reach the defendants' remaining contentions. SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-03 01:00:15.545603+00

http://www.ca5.uscourts.gov/opinions/pub/19/19-40605-CV0.pdf

Case: 19-40605 Document: 00515658372 Page: 1 Date Filed: 12/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2020 No. 19-40605 Lyle W. Cayce Clerk Ronald S. Hines, Doctor of Veterinary Medicine, Plaintiff—Appellant, versus Jessica Quillivan, Doctor of Veterinary Medicine, in her official capacity as President of the Texas State Board of Veterinary Medical Examiners; Keith Pardue, in his official capacity as Vice President of the Texas State Board of Veterinary Medical Examiners; Sandra “Lynn” Criner, Doctor of Veterinary Medicine, in her official capacity as Secretary of the Texas State Board of Veterinary Medical Examiners; Michael White, Doctor of Veterinary Medicine, in his official capacity as a Member of the Texas State Board of Veterinary Medical Examiners; Samantha Mixon, Doctor of Veterinary Medicine, in her official capacity as a Member of the Texas State Board of Veterinary Medical Examiners; Randall Skaggs, Doctor of Veterinary Medicine, in his official capacity as a Member of the Texas State Board of Veterinary Medical Examiners; Carlos Chacon, in his official capacity as a Member of the Texas State Board of Veterinary Medical Examiners; Sue Allen, Licensed Veterinary Technician, in her official capacity as a Member of the Texas State Board of Veterinary Medical Examiners; George Antuna, in his official Case: 19-40605 Document: 00515658372 Page: 2 Date Filed: 12/02/2020 No. 19-40605 capacity as a Member of the Texas State Board of Veterinary Medical Examiners, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 1:18-CV-155 Before Elrod, Southwick, and Haynes, Circuit Judges. Leslie H. Southwick, Circuit Judge: Does a veterinarian have a right to engage in telemedicine for a pet he has not physically examined? The plaintiff claims that right exists. He filed suit, challenging Texas’s physical-examination requirement for vets, which prohibits vets from offering individualized advice to pet owners unless the vet previously examined the animal. In 2015, we rejected the plaintiff’s claims under the First Amendment and Equal Protection Clause. Now, he claims that new precedent from the Supreme Court and this circuit dictate a different result. The plaintiff filed suit again in 2018, re-raising his First Amendment claims. He also added a new equal-protection claim based on Texas’s different telemedicine rules for physicians and veterinarians. The district court rejected the plaintiff’s arguments and granted the defendants’ motion to dismiss. We AFFIRM in part, REVERSE in part, and REMAND. FACTUAL AND PROCEDURAL BACKGROUND Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing what might be called traditional veterinary medicine in 2002 due to his age 2 Case: 19-40605 Document: 00515658372 Page: 3 Date Filed: 12/02/2020 No. 19-40605 and physical limitations. Soon thereafter, he began using his website to write articles about pet health. People around the world began emailing Hines for advice about their own pets. Hines offered individualized advice over email and phone, and in 2003, he added to his website a flat fee for veterinary advice. Under Texas law, the “[p]ractice of veterinary medicine” is defined as: (A) the diagnosis, treatment, correction, change, manipulation, relief, or prevention of animal disease, deformity, defect, injury, or other physical condition, including the prescription or administration of a drug, biologic, anesthetic, apparatus, or other therapeutic or diagnostic substance or technique; (B) the representation of an ability and willingness to perform an act listed in Paragraph (A); (C) the use of a title, a word, or letters to induce the belief that a person is legally authorized and qualified to perform an act listed in Paragraph (A); or (D) the receipt of compensation for performing an act listed in Paragraph (A). TEX. OCC. CODE § 801.002(5). To practice lawfully, the veterinarian must have “sufficient knowledge of the animal,” which is defined as either having recently examined the animal or having visited the “premises on which the animal is kept.” § 801.351(b). “A veterinarian-client-patient relationship may not be established solely by telephone or electronic means.” § 801.351(c). Violations of these limitations are criminal offenses. § 801.504. 3 Case: 19-40605 Document: 00515658372 Page: 4 Date Filed: 12/02/2020 No. 19-40605 In 2012, the Texas State Board of Veterinary Medical Examiners investigated Hines and found he had violated state law. The Board ordered him to cease providing veterinary advice electronically without physically examining the animal. In 2013, Hines filed suit against the Board members in the United States District Court for the Southern District of Texas. He argued that Texas’s physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The defendants filed a Rule 12(b)(6) motion to dismiss, which the district court granted in part. Hines v. Alldredge, No. 1:13-CV-56, 2014 WL 11320417 , at *8 (S.D. Tex. Feb. 11, 2014). On appeal, though, this court held that all of Hines’s claims failed to state a claim. Hines v. Alldredge (Hines I), 783 F.3d 197 (5th Cir. 2015). Some things have changed since our 2015 opinion. In 2017, Texas revised statutes applicable to medical doctors, but not veterinarians, and allowed them to engage in some forms of telemedicine. The law removed Section 111.004(5), which had required face-to-face consultations to establish a physician–patient relationship before engaging in any telemedical services. Act of May 29, 2017, 85th Leg., R.S., ch. 205, § 2, 2017 Tex. Gen. Laws 379 , 380. The bill also added a new section to define what a practitioner–patient relationship looks like in the context of telemedicine. Id. (codified at Tex. Occ. Code § 111.005). Then, in 2018, the United States Supreme Court decided National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018). That case dealt with a California law requiring licensed and unlicensed crisis pregnancy centers to notify women about California’s low-cost services, including abortions. Id. at 2368 . The Ninth Circuit upheld these requirements as regulations of “professional speech.” Id. at 2371 . The 4 Case: 19-40605 Document: 00515658372 Page: 5 Date Filed: 12/02/2020 No. 19-40605 Supreme Court reversed, holding the notice requirements were unconstitutional. Id. at 2370 . Hines filed the present suit on October 2, 2018, in the United States District Court for the Southern District of Texas. Based on the change in Texas’s telemedicine law, Hines brought a new equal-protection claim. Reading NIFLA as abrogating the professional-speech doctrine, Hines also asserts his First Amendment claims anew. The defendants moved for dismissal on December 14, and the district court granted the motion on June 11, 2019. Hines timely filed a notice of appeal. DISCUSSION We review the district court’s dismissal under Rule 12(b)(6) de novo. Cuvillier v. Taylor, 503 F.3d 397 , 401 (5th Cir. 2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). This case involves two independent issues, one under the First Amendment and the other under the Equal Protection Clause of the Fourteenth Amendment. We analyze them separately. I. First Amendment Hines admits that unless NIFLA abrogated Hines I, his claims are foreclosed. The parties ask the court to apply the “mode of analysis” test to determine whether NIFLA abrogated Hines I. Stokes v. S.W. Airlines, 887 F.3d 199 , 204 (5th Cir. 2018). They disagree on how that test should be applied here. Under the rule of orderliness, “one panel may not overrule [a prior] decision, right or wrong” unless there is an intervening change of authority. 5 Case: 19-40605 Document: 00515658372 Page: 6 Date Filed: 12/02/2020 No. 19-40605 Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207 , 1211 (5th Cir. 1991). “[W]hen the Supreme Court expressly or implicitly overrules one of our precedents, we have the authority and obligation to declare and implement this change in the law.” Stokes, 887 F.3d at 204 (emphasis added) (quotation marks omitted). One example of such overruling is “when the Supreme Court disavows the mode of analysis on which our precedent relied.” Id. Put another way, “Fifth Circuit precedent is implicitly overruled if a subsequent Supreme Court opinion establishes a rule of law inconsistent with that precedent.” Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298 , 302 (5th Cir. 2018) (quotation marks omitted). However, “an intervening change in the law must be unequivocal, not a mere ‘hint’ of how the [Supreme] Court might rule in the future.” United States v. Alcantar, 733 F.3d 143 , 146 (5th Cir. 2013). “[M]ere illumination of a case is insufficient” to abrogate our circuit precedent. United States v. Petras, 879 F.3d 155 , 164 (5th Cir. 2018). Relatedly, “the determination whether a given precedent has been abrogated is itself a determination subject to the rule of orderliness.” Stokes, 887 F.3d at 205. After oral argument, another panel of this court issued its opinion in Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020). Hines asserts in a Rule 28(j) letter that Vizaline resolved whether NIFLA abrogated Hines I. The defendants respond that Vizaline abrogated Hines I only to the extent it relied on the professional-speech doctrine, but it left the incidental-burden doctrine untouched. Id. at 930, 934. Vizaline addressed a challenge to Mississippi’s licensing of surveyors. Id. at 928. The court stated that NIFLA “disavowed the notion that occupational-licensing regulations are exempt from First Amendment scrutiny.” Id. The Vizaline court then stated in a footnote: “Our decision in Hines v. Alldredge, 783 F.3d 197 , 202 (5th Cir. 2015), adopted the professional speech doctrine. As explained below, Hines’ reasoning does not survive 6 Case: 19-40605 Document: 00515658372 Page: 7 Date Filed: 12/02/2020 No. 19-40605 NIFLA.” Id. at 928 n.1. The district court in Vizaline had viewed the surveyor regulations as restricting conduct rather than speech, and only incidentally infringing on speech, so the district court said claims about the regulations were not entitled to any First Amendment scrutiny. Id. at 933. The Vizaline court disagreed, holding that general licensing regulations are not automatically immune from First Amendment scrutiny. Id. at 934. Thus, the court reversed and remanded for the proper conduct-versus-speech analysis. Id. In Stokes, we held that circuit precedent was unequivocally abrogated by Supreme Court precedent. 887 F.3d at 204–05. One party argued, though, that one of our cases after the Supreme Court’s intervening decision reaffirmed our earlier caselaw. Id. at 205. We admitted that “the determination whether a given precedent has been abrogated is itself a determination subject to the rule of orderliness.” Id. The case relied upon by the party, though, was unpublished, and regardless did not appear to reaffirm our prior rule. Id. Unlike in Stokes, we are presented with a precedential opinion that held NIFLA abrogated Hines I. As explained in Stokes, we are to follow a prior panel’s determination of whether a Supreme Court case abrogated one of our rules. Vizaline, therefore, is our guide. Bound by Vizaline, we are no longer bound by Hines I. That means Hines’ First Amendment claims may be entitled to greater judicial scrutiny than Hines I allowed. The court concluded that “the relevant question is whether” the state’s “licensing requirements regulate only speech, restrict speech only incidentally to their regulation of non-expressive professional conduct, or regulate only non-expressive conduct.” Vizaline, 949 F.3d at 931. Vizaline declined to give an opinion “on whether the Texas regulation at issue in Hines would have been upheld under the proper conduct-versus- 7 Case: 19-40605 Document: 00515658372 Page: 8 Date Filed: 12/02/2020 No. 19-40605 speech analysis.” Id. at 934 n.9. As the Vizaline court did, we reverse and remand for the district court to make the initial evaluation of whether conduct or speech is being regulated. Id. at 934. II. Equal Protection In Hines I, we addressed a slightly different equal-protection question from the one before us now. Hines’ original claim was predicated on the idea that the physical-examination requirement treated veterinarians engaging in telemedicine differently than other veterinarians. Hines, 2014 WL 11320417 , at *5. We rejected this claim, holding: [T]he requirement that veterinary care be provided only after the veterinarian has seen the animal is, at a minimum, rational: it is reasonable to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it. Hines I, 783 F.3d at 203. Hines’ new claim rests on treating medical doctors differently than veterinarians as to their right to engage in telemedicine. 1 To state a claim for equal protection, “the plaintiff must prove that similarly situated individuals were treated differently.” Beeler v. Rounsavall, 328 F.3d 813 , 816 (5th Cir. 2003) (quoting Bryan v. City of Madison, 213 F.3d 1 Texas’s law for medical doctors does not allow all forms of telemedicine. Section 111.005 provides that a practitioner–patient relationship may exist and thus allow telemedicine services when there is a preexisting relationship, or the practitioner can use either synchronous or asynchronous audiovisual technology to interact with the patient. TEX. OCC. CODE § 111.005. Thus, even if Texas had the same telemedicine requirements for both doctors and veterinarians, Hines would not be allowed to give individualized advice over non-audiovisual technology like phone or email. The chasm between medical doctors and veterinarians, therefore, is not quite as wide as Hines suggests. 8 Case: 19-40605 Document: 00515658372 Page: 9 Date Filed: 12/02/2020 No. 19-40605 267, 276 (5th Cir. 2000)). Being similarly situated is key. “Because the clause’s protection reaches only dissimilar treatment among similar people, if the challenged government action does not appear to classify or distinguish between two or more relevant persons or groups, then the action does not deny equal protection of the laws.” Mahone v. Addicks Util. Dist. of Harris Cnty., 836 F.2d 921 , 932 (5th Cir. 1988). On appeal, the State does not challenge the similarly situated element of the equal-protection claim, and we will assume without deciding that it is met. Because Hines is not a member of suspect class, we consider whether the “classification rationally further[s] a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1 , 10 (1992). When we apply rational basis at the failure-to-state-a-claim stage, we must treat a legislative classification “as valid ‘if a court is able to hypothesize a legitimate purpose to support the action.’” Glass v. Paxton, 900 F.3d 233 , 245 (5th Cir. 2018) (quoting Mahone, 836 F.2d at 934 ). Behind the Equal Protection Clause is the principle that government action should not be arbitrary. See Vill. of Willowbrook v. Olech, 528 U.S. 562 , 564 (2000). Rational-basis review is guided by the principle that we do not have “a license . . . to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe ex rel. Doe, 509 U.S. 312 , 319 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307 , 313 (1993)). “When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 , 440 (1985) (citations omitted). Accordingly, “[t]he constitutional test for rationality of a legislative classification, whether the classes be distinguished in the text of the law or in its administration, is whether any rational decisionmaker could have so classified.” Stern v. Tarrant Cnty. Hosp. Dist., 778 F.2d 1052 , 1056 (5th Cir. 1985). 9 Case: 19-40605 Document: 00515658372 Page: 10 Date Filed: 12/02/2020 No. 19-40605 Though rational-basis review gives broad discretion to legislatures, it is not unlimited. The Supreme Court says to presume legislation is valid. City of Cleburne, 473 U.S. at 440 . We have stated that to uphold a state’s classification, a court need find only “a conceivable rational basis for the official action.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751 , 754 (5th Cir. 1988) (emphasis omitted). Notably, however, we have made clear that “rational” still must be actually rational, not a matter of fiction. St. Joseph Abbey v. Castille, 712 F.3d 215 , 223 (5th Cir. 2013). We examine our opinion in St. Joseph Abbey closely because it provides a recent and thorough explanation. There, we considered a district court’s order enjoining the enforcement of a Louisiana rule that granted funeral homes the exclusive right to sell caskets. Id. at 217. A group of monks at an abbey constructed and sold wooden caskets. Id. This practice violated the state’s rule that only a state-licensed funeral director of a state-licensed funeral home could sell caskets to people in the state. Id. at 218. The abbey sued, seeking declaratory and injunctive relief based on theories of substantive due process and equal protection. Id. at 220. The state argued that economic protection of the funeral industry was a legitimate state interest, but after a bench trial, the district court disagreed. Id. Applying rational-basis review, we affirmed. Id. at 227. We explained that “although rational basis review places no affirmative evidentiary burden on the government, plaintiffs may nonetheless negate a seemingly plausible basis for the law by adducing evidence of irrationality.” Id. at 223. We compared the state’s offered rationale to the setting and history of the challenged rule. Id. The state’s first articulated reason was economic protection of a discrete industry. Id. at 221. We held, though, that pure economic protectionism is not by itself a legitimate state interest. Id. at 222–23. A law motivated by protectionism may have a rational basis, but “naked economic preferences are impermissible to the extent that 10 Case: 19-40605 Document: 00515658372 Page: 11 Date Filed: 12/02/2020 No. 19-40605 they harm consumers.” Id. at 223 (quoting Greater Hous. Small Taxicab Co. Owners Ass’n v. City of Hous., 660 F.3d 235 , 240 (5th Cir. 2011)). The state had two additional reasons for the casket rule: consumer protection and public health and safety. Id. at 223, 226. The state argued that by controlling who could sell caskets, it could police deceptive sales tactics and thus protect consumers. Id. at 223. We held that this reasoning was irrational. The state did not require individuals to be buried in caskets, and the Federal Trade Commission found no evidence of consumer deception by third-party casket sellers. Id. at 225. Overall, the structure of the law revealed a “disconnect between the post hoc hypothesis of consumer protection and the grant of an exclusive right of sale to funeral homes.” Id. at 226. As for health and safety, we found the reason disconnected from reality. Id. The state did not require caskets to be constructed a certain way nor did the state require funeral directors to have special expertise about caskets. Id. Accordingly, there was no rational relationship “between public health and safety and limiting intrastate sales of caskets to funeral establishments.” Id. “A hypothetical rationale, even post hoc, cannot be fantasy.” Id. at 223. “[G]reat deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation.” Id. at 226. In the end, all that was left of the state’s motivation was economic protectionism that actually seemed to harm consumers. See id. at 226–27. Despite “try[ing] as we [were] required to do, we c[ould] suppose” no rational basis for the challenged law. Id. at 227. We upheld the district court’s injunction against the state’s actions against the abbey. Id. We do not read St. Joseph Abbey to hold that a plaintiff alleging an equal-protection claim is always entitled to present evidence and make it 11 Case: 19-40605 Document: 00515658372 Page: 12 Date Filed: 12/02/2020 No. 19-40605 beyond the motion-to-dismiss stage. Indeed, such a reading would ignore that a state is not required “to produce evidence to sustain the rationality of a statutory classification.” Heller, 509 U.S. at 320 . St. Joseph Abbey dealt with a “purported rational basis that rose to the level of ‘fantasy.’” Glass, 900 F.3d at 245 (quoting St. Joseph Abbey, 712 F.3d at 223). In addition, the court tried to conceive other potentially rational bases but could not think of any. St. Joseph Abbey, 712 F.3d at 227. We do not consider St. Joseph Abbey to have altered how we conduct rational-basis review; instead, it thoroughly applied that standard of review to an irrational law. Turning now to the statute before us, we remind ourselves that it was rational for the state legislature to conclude that an in-person examination of an animal reduces “the risk of misdiagnosis and improper treatment.” Hines I, 783 F.3d at 203. Hines contends that Texas’s new telemedicine law shows our prior conclusion was misguided because Texas now believes expanding telemedical services for humans will improve overall care. To the extent Hines is claiming that there is a disparity between care for animals that do not have access to in-person veterinary care and care for animals that do, that claim is foreclosed by our prior opinion. We will not consider anew the rationality of treating veterinarians engaging in telemedicine differently than veterinarians practicing in person. The new issue is equal protection for the State’s choice to allow doctors who treat humans to engage in telemedicine but not doctors who treat animals. Hines tries to rebut a number of conceivable justifications for regulating telemedicine differently than televeterinary services. The State offers several reasons why Texas would treat veterinarians and medical doctors differently, citing several of the reasons conceived by the district court. “[H]umans ordinarily can communicate about their own symptoms with a doctor via electronic means, whereas animals cannot.” Additionally, “humans typically understand human physiology better than animal 12 Case: 19-40605 Document: 00515658372 Page: 13 Date Filed: 12/02/2020 No. 19-40605 physiology.” Hines rejects these reasons by identifying inconsistencies such as the fact that some humans, like infants, are also unable to speak. A classification may be underinclusive or overinclusive and yet survive rational-basis review. Harris v. Hahn, 827 F.3d 359 , 369 (5th Cir. 2016). The Constitution does not require perfect policies to achieve a state’s legitimate interests. Id. “When a legislature has a choice of means, each rationally related to its legislative purpose, it may constitutionally choose any of them. Its choice of one does not render the others irrational.” Stern, 778 F.2d at 1056 . That Texas has taken a different approach for medical doctors and for veterinarians is not per se irrational. Id. We find helpful our now-colleague’s analysis in a Texas Supreme Court opinion: It is instructive to consider the U.S. Supreme Court’s first occupational licensing case, from 1889. In Dent v. West Virginia — which has never been overruled and is still cited approvingly — the Court upheld a physician-licensing regime, calling it a way to protect “the general welfare of [the] people” and “secure them against the consequences of ignorance and incapacity, as well as of deception and fraud.” But the Court cautioned that constitutional limits exist. Government is free to mandate requirements “appropriate to the calling or profession,” but not those that “have no relation to such calling or profession.” Why? Because that would “deprive one of his right to pursue a lawful vocation.” Restrictions must have a reasonable connection to the person’s fitness or capacity. That explains the High Court’s 1957 ruling in Schware v. Board of Bar Examiners, the only time the Court has struck down a licensing restriction under rational-basis review. In Schware, the Court invalidated New Mexico’s attempt to bar a Communist Party member from practicing law: “any 13 Case: 19-40605 Document: 00515658372 Page: 14 Date Filed: 12/02/2020 No. 19-40605 qualification must have a rational connection with the applicant’s fitness or capacity to practice.” Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69 , 110–11 (Tex. 2015) (Willett, J., concurring) (footnotes omitted). The key is rational connection. We agree with the State here that it is rational to distinguish between humans and animals based on the species’ differing capabilities. More to the point, though, the law’s differentiating between medical doctors and veterinarians is a logical distinction, unlike the artificial line-drawing of the casket rule considered in St. Joseph Abbey. Texas’s statutory requirements for medical doctors are found in Title 3 of the Texas Occupations Code, while the requirements for veterinarians are in Title 4. The occupations have different governing boards and rulemaking bodies. They require different schooling. They treat different subjects, and the treatment sometimes differs substantially. The professions have their similarities, of course, but in our inquiry, there are rational reasons to believe regulations suitable for one profession are not constitutionally required for the other. One Texas appellate court considered whether the Texas Medical Liability and Insurance Improvement Act applied to veterinarians. Neasbitt v. Warren, 22 S.W.3d 107 , 108 (Tex. App.—Fort Worth 2000, no pet.). The defendant in the negligence action, a veterinarian, sought a cost bond under the medical liability law, which on its face applied only to health care providers or physicians. Id. Observing the different statutory schemes for physicians and veterinarians, the court held that the liability law did not apply to the claim against the veterinarian. Id. at 112 . The court stated, “The reality that physicians and veterinarians have traditionally been licensed and regulated by entirely separate state boards and under entirely different statutes provides further support for differentiating between the two professions.” Id. at 111 . We agree with that sentiment. 14 Case: 19-40605 Document: 00515658372 Page: 15 Date Filed: 12/02/2020 No. 19-40605 Moreover, unlike the challenged law in St. Joseph Abbey, the physical- examination requirement for veterinarians is not a protectionist measure designed to stop veterinarians from competing with medical doctors. See St. Joseph Abbey, 712 F.3d at 226–27. Indeed, medical services are not an economic substitute for veterinarian services. That means the services are not interchangeable. In the antitrust-law context, we could say that the two services are not part of the same relevant product market, competing against one another. Apani S.W., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620 , 626 (5th Cir. 2002). Our takeaway is that Texas’s physical-examination requirement is not a “naked transfer of wealth” from veterinarians to medical doctors because those two professions are not in competition with one another to begin with. See St. Joseph Abbey, 712 F.3d at 223. The state- licensed funeral homes could raise prices on caskets because of the state’s rule disallowing the abbey from selling caskets in state. See id. at 226. By contrast, physicians practicing telemedicine are not able to raise prices due to the regulations on veterinarians’ practice of telemedicine. It is not irrational for a state to change in stages its licensing laws to adapt to our new, technology-based economy. If the Texas legislature finds the recently enacted changes on telemedicine successful, it may decide to expand those changes to include veterinarians. It is reasonable to have a trial period rather than to make a hasty policy change. Though we could conceive no rational basis for the law challenged in St. Joseph Abbey, we can conceive many rational bases here. The district court properly dismissed Hines’ equal-protection claim. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings. 15 Case: 19-40605 Document: 00515658372 Page: 16 Date Filed: 12/02/2020 No. 19-40605 Jennifer Walker Elrod, Circuit Judge, concurring in part 1 and dissenting in part: To prevail at this stage, Dr. Hines must show only that Texas lacks a rational basis for prohibiting veterinarians from using telemedicine the same way medical doctors can. Because I believe Dr. Hines has made this showing, I would reverse the district court’s dismissal of Dr. Hines’s Equal Protection claim. Under Texas law, a veterinarian must either examine an animal directly or visit the premises on which the animal is kept before establishing a patient relationship. Tex. Occ. Code § 801.351(b). Only after doing one of those two things may a veterinarian treat an animal via virtual means. Medical doctors, on the other hand, may form a patient relationship entirely through virtual means. Dr. Hines contends that Texas’s different and more burdensome requirement for veterinarians practicing telemedicine compared to medical doctors practicing telemedicine violates the Fourteenth Amendment’s guarantee of equal protection of the laws. The Equal Protection clause forbids the Government from giving differential treatment to people who are similarly situated, unless the Government has a rational basis for doing so. See Nordlinger v. Hahn, 505 U.S. 1 , 10 (1992); Gibson v. Tex. Dep’t of Ins.—Div. of Workers’ Comp., 700 F.3d 227 , 238 (5th Cir. 2012). Here, the only question is whether, accepting as true all well-pleaded facts in Dr. Hines’s complaint, he has plausibly alleged that he has been treated differently than other similarly situated 1 I agree with the majority opinion that the case should be remanded to the district court so that the regulation at issue can be evaluated under National Institute Of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) and Vizaline L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020). 16 Case: 19-40605 Document: 00515658372 Page: 17 Date Filed: 12/02/2020 No. 19-40605 individuals and he has plausibly alleged that no rational basis accounts for the difference. In my view, Dr. Hines has done so and thus, has stated a claim. The district court concluded that doctors and veterinarians are similarly situated for the narrow purpose of analyzing the laws that concern telemedicine. As the district court acknowledged, doctors and veterinarians belong to different professions. Nevertheless, both groups provide medical advice to living subjects and the benefits and drawbacks of expanding access to medical care through telemedicine are the same for both groups. While the majority opinion purports to assume that doctors and veterinarians are similarly situated with respect to telemedicine laws, since this issue was not appealed, the opinion’s analysis places great weight on differences between the professions that go to the “similarly situated” element. For instance, the majority opinion notes that the occupations have different governing boards and rulemaking bodies and that they attend different types of educational institutions for their training. However, the district court expressly considered that “doctors and veterinarians are subject to different licensing boards and are considered separate professions” when it decided that that the “similarly situated” element was met. The majority opinion “assumes” this holding but then undercuts it to support the conclusion that Texas’s telemedicine laws pass rational basis review. I agree with the magistrate judge and district court that veterinarians and doctors are similarly situated regarding regulation of their use of telemedicine. I would further hold that the state has failed to demonstrate a rational basis for their disparate regulation, at least at this stage of litigation. 2 When we conduct a rational basis review, legislation is presumed valid, but a 2 The magistrate judge concluded that Texas lacked a rational basis, but the district court held that Texas did have a rational basis. 17 Case: 19-40605 Document: 00515658372 Page: 18 Date Filed: 12/02/2020 No. 19-40605 presumption is not a guarantee. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 , 440 (1985); St. Joseph Abbey v. Castille, 712 F.3d 215 , 223 (5th Cir. 2013). “[A]lthough rational basis review places no affirmative evidentiary burden on the government, plaintiffs may nonetheless negate a seemingly plausible basis for the law by adducing evidence of irrationality.” St. Joseph Abbey, 712 F.3d at 223. A “hypothetical rationale, even post hoc, cannot be fantasy.” Id. When a plaintiff provides a court with undisputed context that betrays the otherwise rational basis the state has offered, the state can no longer expect the court’s deference. Rational basis review is a level of scrutiny, not a rubber-stamping exercise. See Harris Cty. v. CarMax Auto Superstores Inc., 177 F.3d 306 , 323 (5th Cir. 1999) (“[T]he rational basis test ‘is not a toothless one.’”) (quoting Mathews v. Lucas, 427 U.S. 495 , 510 (1976)). St. Joseph Abbey was a recent and standard application of rational basis review in action. In that case, an abbey of Benedictine monks who sold handcrafted caskets challenged the state of Louisiana’s rules that allowed only state-licensed funeral homes to sell caskets to people in Louisiana. St. Joseph Abbey, 712 F.3d at 217–18. Louisiana offered three seemingly plausible bases for the challenged rules: economic protection of the funeral industry, consumer protection for casket purchasers, and public health and safety for casket purchasers. As to the first rationale, our court in St. Joseph Abbey ruled that economic protection of a favored industry is not, on its face, a legitimate state interest. Id. at 222–23. As to the second and third rationales, both were seemingly plausible. If all rational basis review required was the offering or conjecture of a seemingly plausible basis, the court could have stopped there and dismissed the monks’ claim. Instead, the court considered the context that the monks put forward, which negated both of the state’s bases. For instance, regarding “health and safety,” the monks pointed out that Louisiana did not require caskets for 18 Case: 19-40605 Document: 00515658372 Page: 19 Date Filed: 12/02/2020 No. 19-40605 burial, did not impose requirements for their construction or design, did not require a casket to be sealed before burial, and did not require funeral directors to have any special expertise in caskets. Id. at 223–27. These facts fatally undermined the logic of Louisiana’s “health and safety” basis for permitting only funeral homes to sell caskets to in-state customers. 3 St. Joseph Abbey does not mean, as perhaps the majority opinion fears, that Equal Protection claims can never be dismissed at the 12(b)(6) stage or that survival of a claim at the 12(b)(6) stage is equivalent to a judgment as a matter of law in favor of the plaintiff. In cases where the state provides a rational basis for the challenged law and the plaintiffs are unable to negate the basis, the case will be dismissed. But where the state provides only a theoretically plausible rationale and the plaintiff is successful in affirmatively undermining the logic that makes that basis rational, then the claim can proceed to an evidentiary stage. In that stage, the state may be able to provide evidence or better argumentation that rehabilitates their bases for the challenged law or supports new bases. If the state does so, the Equal Protection claim later may be dismissed before trial, even though the claim survived a motion to dismiss. In this case, like in St. Joseph Abbey, the state has offered several seemingly plausible bases for its differential treatment of veterinarians and 3 Our precedent contains many more examples of cases where state laws or regulations have failed rational basis review. See, e.g., Doe v. Plyler, 628 F.2d 448 , 458 (5th Cir. 1980), aff’d 457 U.S. 202 (1982) (holding that a Texas statute that had been applied so as to deny free public education to children based on their undocumented status violated the Equal Protection clause, despite the school district’s asserted justifications); Thompson v. Gallagher, 489 F.2d 443 , 449 (5th Cir. 1973) (holding that city ordinance requiring that any veteran employed by the city have an honorable discharge was not reasonably related to the city’s interest in maintaining the quality of its work force, in part because it subjected veterans to standards to which nonveterans were not subjected). 19 Case: 19-40605 Document: 00515658372 Page: 20 Date Filed: 12/02/2020 No. 19-40605 doctors. However, Dr. Hines has offered context that belies the rationality of these differences. 4 Texas provided three potential rational bases for the differential treatment: First, humans’ ability to communicate with their physicians enables them to receive better telemedical care than animals. Second, humans are more familiar with human physiology and can describe it to the doctor. Third, having higher standards for telemedicine for animals is rational because of the importance of preventing the spread of zoonotic disease, which can pass to humans. The magistrate judge concluded that the state’s rationales were irrational, and aptly explained why in his report and recommendation: 4 The majority believes the holding of Hines v. Alldredge, 783 F.3d 197 , 203 (5th Cir. 2015) (Hines I) has a preclusive effect on our rational basis review of the telemedicine restrictions for veterinarians. Dr. Hines challenged the restriction on Equal Protection grounds in his 2013 lawsuit, Hines I, on the basis that he was treated irrationally, being a duly licensed veterinarian but forbidden from providing veterinary advice like his colleagues who ran brick-and-mortar clinics. The Fifth Circuit rejected the challenge, concluding: “it is reasonable to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it.” Hines I, 783 F.3d at 203. But the situation has since changed. When Dr. Hines brought his initial suit, doctors and veterinarians were treated similarly with respect to their practice of telemedicine. In 2017, the Texas legislature revised the statutes applicable to medical doctors and removed their restriction, allowing medical doctors to establish a doctor- patient relationship solely through electronic means. Veterinarians, however, remained subject to the restriction requiring an in-person visit before providing telemedical care. The 2017 revision to statutes regulating medical doctors changes the posture of this case and the effect of Hines I. In short, the holding of Hines I was based on a premise that is no longer true: that Texas believes the risks of telemedicine without an initial in-person visit outweigh the potential benefits of increased access. We are not bound to again uphold the telemedicine restriction merely because it was upheld previously under different circumstances. 20 Case: 19-40605 Document: 00515658372 Page: 21 Date Filed: 12/02/2020 No. 19-40605 If a pediatrician can use telemedicine to treat a three-month old infant—based upon medical records, the parent’s description of external symptoms and a visual examination of the child— the Court cannot adduce why a veterinarian cannot do the same for a dog, cat, or hamster. As Dr. Hines argues, “[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of telemedicine for puppies on the ground that puppies cannot speak.” 5 Babies and other non-communicative adults were intentional beneficiaries of Texas’s expansion of telemedicine, not the subjects of unwitting overinclusion. Texas has never shown a preference for animals over humans that would support requiring higher standards for animals’ medical treatment. Cf. Strickland v. Medlen, 397 S.W.3d 184 , 185 (Tex. 2013) (Willett, J.) (holding that dog owners could not recover non-economic damages for loss of companionship under Texas tort law because “[p]ets are property in the eyes of the law.”). 5 In my view, the magistrate judge’s reasoning is fatal to both the state’s first and second rationales. The district court disagreed, accepting both. The district court then considered in greater detail and accepted the state’s third rationale that requiring veterinarians to physically examine an animal before subsequently treating that animal via telemedicine can improve human health by suppressing zoonotic disease. However, this rationale simply is not based in reality, considering that the restriction on telemedicine does not actually require a veterinarian to inspect an animal for disease during an initial examination or even, in fact, require an in-person examination of each animal. A veterinarian can begin a veterinarian-patient relationship with an animal as long as he or she has visited the premises on which the animal is kept. See Tex. Occ. Code § 801.351(b). Furthermore, this theoretical rationale is again betrayed by the fact that medical doctors establishing a doctor-patient relationship are not required to physically examine their human subjects at all, despite the fact that human-to-human transmission of diseases poses a far greater risk to human health. If the state’s goal was to reduce diseases affecting humans, the existing telemedicine restriction on veterinarians would be a fantastical means of achieving it. 21 Case: 19-40605 Document: 00515658372 Page: 22 Date Filed: 12/02/2020 No. 19-40605 Although the rational basis test is deferential, it does not require us to accept “nonsensical explanations for regulation.” St. Joseph Abbey, 712 F.3d at 226. The magistrate judge correctly concluded that Texas’s explanations are indeed nonsensical. I therefore respectfully dissent. 22

2020-11-20 19:31:33.656514+00

John A. Snively, Sr., Petitioner, v. Commissioner of Internal Revenue, Respondent Snively v. Commissioner Docket No. 31896 United States Tax Court April 22, 1953, Promulgated *187 Decision will be entered under Rule 50. Petitioner owned approximately 94 per cent of the preferred stock of Lake Eloise Groves, Inc., which operated citrus groves in and near Winter Haven, Florida. The corporation experienced financial difficulties and, in 1943, its assets were sold at a loss to a family trust. The petitioner's son was the trustee and petitioner's other children and grandchildren were the beneficiaries. The respondent disallowed the loss on the ground that it was barred by section 24 (b) of the Code. He determined deficiencies and a penalty against the corporation and asserted them against petitioner as a transferee. He disallowed net operating loss carry-backs from 1944 to 1942 and 1943 and he determined that the fruit on the trees at the time of sale had a fair market value of $ 222,459.56 which constituted ordinary income to the corporation. 1. Held, the sale of the assets of the dissolved corporation was made to a valid existing trust and the loss sustained does not fall within the provisions of section 24 (b). 2. Held, further, net operating loss carry-backs allowed to the extent of offsetting the corporation's income for 1942 and 1943. 3. Held, further, there *188 are no deficiencies or penalty due from the corporation, and petitioner is, therefore, not liable as a transferee. 4. Held, further, in a transferee proceeding, this Court has no jurisdiction to determine who is entitled to any overpayment of tax made by the transferor. James P. Hill, Esq., and William R. Frazier, Esq., for the petitioner. Newman A. Townsend, Jr., Esq., for the respondent. Rice, Judge. Hill and Raum, JJ., dissent. RICE *137 The respondent determined deficiencies in income tax, excess profits tax, and declared value excess-profits tax against the taxpayer, Lake Eloise Groves, Inc., for its fiscal years ended April 30, 1942, 1943, and 1944, and a penalty for 1944 as follows: Type of tax194219431944 Income tax$ 44.83$ 1,752.15$ 32,286.01 Declared value excess-profits tax666.1443,892.18 Excess profits tax190,614.22 25% Penalty42,888.27 Total44.832,418.29309,680.68 Respondent determined that petitioner was liable as transferee of property of the taxpayer for such deficiencies and penalty. The issues to be decided are: (1) Whether Lake Eloise Groves, Inc., may deduct for the fiscal year 1944 a loss arising from the sale of its assets to a family trust, or whether such loss is disallowed *189 by the provisions of section 24 (b) (1) (A) or (B) of the Internal Revenue Code; (2) whether Lake Eloise Groves, Inc., is entitled to net operating loss carry-backs, and if so in what amounts, from the fiscal year 1944 to the fiscal years 1942 and 1943; (3) whether Lake Eloise Groves, Inc., realized ordinary income on account of the unharvested citrus crops on its trees at the time of the sale, and if so in what amount; (4) whether Lake Eloise Groves, Inc., is liable for a 25 per cent delinquency penalty for failure to file an excess profits tax return for the fiscal year 1944; (5) whether petitioner is liable as a transferee of the assets of Lake Eloise Groves, Inc.; and (6) whether Lake Eloise Groves, Inc., overpaid its taxes for the fiscal years 1942 and 1943, and may a determination with respect to such overpayments, if any, be made in this proceeding. One issue relating to an unused excess profits credit was settled by stipulation and will be taken into consideration in a recomputation under Rule 50, together with certain other uncontested adjustments. Some of the facts were stipulated. *138 FINDINGS OF FACT. The stipulated facts are so found and are incorporated herein. Petitioner is *190 an individual, residing at Winter Haven, Florida. He filed his returns with the collector of internal revenue for the district of Florida. Lake Eloise Groves, Inc. (hereinafter referred to as Lake Eloise), is a dissolved Florida corporation. For the taxable years 1942, 1943, and 1944, corporation income and declared value excess-profits tax returns were filed on behalf of Lake Eloise with the collector of internal revenue for the district of Florida. An excess profits tax return was filed on behalf of Lake Eloise for the taxable year 1943, but none was filed for the taxable year 1944. During those years Lake Eloise was an association taxable as a corporation. Lake Eloise was incorporated under the laws of Florida on April 16, 1928, for the purpose of acquiring the assets of Hundred Lakes Corporation, another Florida corporation which was then insolvent. The property and assets of Hundred Lakes Corporation consisted, for the most part, of subdivided lots located in and around Winter Haven. The Hundred Lakes Corporation owed various firms and corporations approximately $ 1,000,000, and its creditors agreed to accept preferred stock in Lake Eloise for their claims. Among the assets *191 acquired by Lake Eloise from Hundred Lakes Corporation were approximately 272 acres of bearing citrus groves. A large part of the citrus acreage was located within the city limits of Winter Haven. A number of lots had been sold from this acreage, and, as a result, there were few solid blocks of land. Subsequent to its acquisition by Lake Eloise, the value of this acreage decreased to such an extent that Lake Eloise encountered financial difficulties. On October 14, 1932, Lake Eloise executed in favor of Growers Loan & Guaranty Co. of Tampa, Florida, a trust deed encumbering its groves to secure debts aggregating the sum of $ 126,000 evidenced by seven notes as follows: 1 Note to Lyons Fertilizer Co. for$ 27,000 1 Note to Snell National Bank of Winter Haven for30,000 1 Note to Dundee Citrus Growers Association for10,000 1 Note to Florence Citrus Growers Association for10,000 1 Note to Growers Loan & Guaranty Co. for39,000 1 Note to John A. Snively, Sr., for5,000 1 Note to A. M. Tilden for5,000 Lake Eloise defaulted in the payment of the debts secured by the aforementioned trust deed and for several years, including the fiscal year ended April 30, 1943, Growers Loan & Guaranty Co. cared for *192 the groves and marketed the fruit grown thereon in an effort to collect the defaulted loan. During the fiscal year ended April 30, 1944, *139 the loan was finally liquidated, and Growers Loan & Guaranty Co. relinquished possession of the groves. Under that deed of trust, Growers Loan & Guaranty Co. was given full authority to manage the grove properties and to appoint agents for that purpose. The petitioner was appointed its agent for the purpose of managing the groves. The years from 1928 to 1940 were poor years for citrus growers in Florida. Many growers did not make expenses. The financial condition of Lake Eloise grew progressively worse. Two of the largest creditors of Lake Eloise settled their claims in 1935 for one-third of the amount due. In 1936 Lake Eloise lost its corporate charter for failure to pay its annual capital stock tax due the State of Florida. Lake Eloise was dissolved on September 17, 1936, by proclamation of the Governor of Florida for failure to pay its capital stock tax. Ford J. DeHaven, petitioner's brother-in-law, was the corporation's sole surviving director. John A. Snively, Jr. (hereinafter sometimes referred to as John), is petitioner's son and the *193 husband of May Pate Snively. Avis Snively and Evalyn Snively Walde are the daughters of petitioner. On November 1, 1943, all of them were over 21 years of age. John A. Snively, III, and McClendon Pate Snively are the sons of John. John A. Snively, III, was born January 4, 1940, and McClendon Pate Snively was born May 15, 1942. In January 1941, John A. Snively, Jr., trustee of the Snively Trust (hereinafter, in his trustee capacity, referred to as Trustee), purchased a citrus grove known as the Babson Park Grove. He was an experienced citrus grove operator. The initial payment of the purchase price for this grove was advanced to the Trustee by the petitioner, and petitioner was repaid out of the proceeds of the grove when the fruit was picked. On December 28, 1941, John, Avis Snively, Evalyn Snively Walde, and May Pate Snively executed an instrument setting forth the terms and conditions under which title to the Babson Park Grove, and any other property which might thereafter be acquired, was to be held by the Trustee. The instrument provided, in part, as follows: WHEREAS, the equitable title and beneficial interest in and to said property belongs in equal share to Avis Snively, *194 Evalyn S. Walde and May Pate Snively; and WHEREAS, the above named persons have requested that I hold the legal title to said property for them until they shall otherwise direct, and to operate the same as their agent or trustee, until such time as they shall request otherwise. NOW THEREFORE, I, the undersigned, John A. Snively, Jr., as Trustee, do hereby declare to each of the persons above named that I hold the legal title to the hereinabove described [property] for them in equal shares; that I will convey said title to them, or any person they may designate, upon request; and that I will keep and maintain an accurate set of books in the operation of said *140 property, and will distribute any funds coming into my hands from the operation thereof, or otherwise, in equal shares to the above named parties, after first deducting actual expenses incurred in connection therewith. Said Avis Snively, Evalyn S. Walde and May Pate Snively hereby request the said John A. Snively, Jr., Trustee, to hold the title to said property, and to maintain and operate the same. In December 1942, petitioner conveyed a grove, known as the Dundee Thirty Grove, to the Trustee. Petitioner had negotiated the purchase *195 of this property for the Trustee, and had advanced the purchase price. When title was conveyed to the Trustee, he reimbursed petitioner out of trust funds. In January 1943, May Pate Snively assigned her interest in the Snively Trust to her two children, John A. Snively, III, and McClendon Pate Snively. In July 1943, 1,053 shares of the preferred stock of Lake Eloise was held by the Exchange National Bank of Winter Haven and W. H. Hamilton as trustees for the estate of Mary B. Jewett, deceased. The bank employed an accountant to determine the value of that stock. He made an audit of the books and affairs of Lake Eloise and determined its preferred stock was worth $ 22.50 per share. In that same month, petitioner purchased that stock at $ 22.50 per share (originally $ 100 par value) after the bank was authorized to sell at that price by order of the Circuit Court of Polk County, Florida, dated July 28, 1943. Petitioner had previously purchased some of the preferred stock at as low as 5 cents and 10 cents on the dollar. For a number of years, petitioner had been buying up the preferred shares, and the Jewett estate's shares was the last large block that he didn't own. After petitioner *196 acquired the shares of preferred stock in Lake Eloise from the Jewett estate, he and his son undertook to work out a plan to acquire Lake Eloise's grove properties for the Snively Trust. Petitioner and his son were both interested in creating an estate for the daughters and grandchildren of petitioner. On October 15, 1943, petitioner owned approximately 94 per cent of the outstanding preferred stock of Lake Eloise and approximately 50 per cent of its outstanding common stock. The common stock had no market value. On that date, the Trustee entered into an agreement with Ford J. DeHaven, sole surviving director of the dissolved Lake Eloise, to purchase all of its assets for $ 135,930 cash plus the assumption of its liabilities. The principal assets consisted of the 272 acres of citrus groves heretofore mentioned. Under the terms of the agreement, the sale was to be effected as of November 1, 1943, but was not to be consummated until authorized by the Circuit Court of Polk County. Ford J. DeHaven thereafter filed with the Circuit Court of Polk County, Florida, a petition setting forth the fact that as sole surviving director of Lake Eloise he had been offered for the *141 assets of the *197 dissolved corporation a sum which would net the preferred stockholders $ 22.50 for each share of preferred stock and asking the court to "make any orders herein that may seem just and proper." The circuit court reviewed the petition, including a balance sheet from the corporation's books, and found that under the laws of Florida it was the duty of the trustee of the assets of the dissolved corporation to liquidate the assets; that the trustee had been unable in the past to liquidate the assets of said company for an amount sufficient to pay the indebtedness of the company, much less anything to the stockholders. It found the offer made by the Trustee to be fair and reasonable, and by its order dated December 10, 1943, approved the sale. At the time of the execution of the agreement of October 15, the Trustee paid to Ford J. DeHaven from the funds accumulated by the Snively Trust through the operation of Babson Park and Dundee Thirty Groves, the sum of $ 10,000 as an initial payment on account of the purchase of the assets of Lake Eloise. At the time, it was contemplated by petitioner and the Trustee that the latter would be able to realize from the sale of the unharvested fruit crop *198 on the groves sufficient funds to pay most of the balance of the cash consideration due in the transaction. If the fruit crop did not produce enough funds to pay off this balance, it was planned that the Trustee should owe the balance to petitioner until such time as it could be paid off. By a deed dated November 15, 1943, and assignment dated the same date, both of which were delivered after the issuance of the order of the circuit court of December 10, Ford J. DeHaven, as sole surviving director and trustee of Lake Eloise, conveyed to the Trustee all of the assets of Lake Eloise. On the same date, John executed a new declaration of trust setting forth in detail his duties as Trustee of the Lake Eloise Groves. This declaration specified that Evalyn Snively Walde and Avis Snively were each vested with life interests in undivided one-third shares of the property with remainders to their children. It further provided that the children, then living and thereafter to be born, of John were vested with the fee to the other undivided one-third interest. The trust was to terminate upon and after the death of Evalyn Snively Walde, Avis Snively, and John, and as soon thereafter as the youngest *199 child of Evalyn or Avis, whichever died leaving the youngest child, attained 21 years of age. The instrument vested the Trustee with broad powers to manage the properties covered thereby and authorized him to withhold distribution of current income to buy other property, to maintain the corpus, or to establish reasonable reserves. Neither John nor *142 petitioner was a beneficiary of the trust and petitioner, by the terms of the declaration, had no control over the corpus or the income of the trust. However, petitioner was entitled to participate in the selection of a successor trustee. A transcript of the journal entry which recorded the transaction on the books of the Snively Trust is as follows: THE SNIVELY TRUST WINTER HAVEN, FLORIDA Transcript of Journal Entry per Books November 1, 1943:DebitCredit Accounts receivable -- Polk Packing Assn$ 105,368.72 Land -- 272 acres approx13,600.00 Citrus trees -- 272 acres approx13,600.00 Grove equipment500.00 Water works and irrigation equipment500.00 Other assets (including retain certificates)10,001.00 Fruit (on trees) (1943-44 crop)91,074.60         Accounts payable -- Ford J. DeHaven,           Trustee$ 135,930.00 Accounts payable -- John A. Snively, Sr50,875.00 Accounts payable -- Collector of Internal           Revenue -- Taxes for year ended Apr. 30, 194323,772.24         Accounts payable -- Attorney and accountant's fees10,000.00 Accounts payable -- T. V. Snively14,067.08 234,644.32234,644.32 *200 To record the purchase, as of Nov. 1, 1943, of all assets of Lake Eloise Groves, Inc. and the assumption of all liabilities of said corporation as set forth in the Circuit Court (of Polk County) Order dated Dec. 10, 1943. The amount due from Polk Packing Association represents fruit returns for the prior season less expenses paid to Nov. 1, 1943, and was reconciled with the books of Polk Packing Association. The remaining cost of the assets was prorated to the various assets in proportion to their relative value. The amount due Ford J. DeHaven, Trustee, represents the cash consideration as outlined in the Court Order. The other accounts payable represent liabilities of Lake Eloise Groves, Inc. assumed by John A. Snively, Jr., Trustee. For the calendar years 1942 and 1943, partnership information returns were filed by the Snively Trust upon which operations of the Babson Park and Dundee Thirty Groves were disclosed. The returns were captioned "John A. Snively, Jr., Trustee." Both recite that the date of organization was January 1, 1942, and that the "nature of [the] organization" was a partnership. The 1942 return disclosed that Evalyn S. Walde, May Snively, and Avis Snively were *201 the partners to whom income was distributable. The 1943 return *143 disclosed that income was distributable to the same persons except that John, as guardian for John A. Snively, III, and McClendon Pate Snively, replaced May Snively. For the period November 15, 1943, to December 31, 1943, a fiduciary income tax return was filed under the caption "Snively Trust, John A. Snively, Jr., Trustee." This return was delinquently filed on March 15, 1945. It disclosed operations of the Lake Eloise Grove for the indicated period and recited that the trust was created on November 15, 1943. It did not name the beneficiaries of the trust. For the taxable year 1944, the Snively Trust filed a fiduciary return on which it was recited that the trust was created November 15, 1943, and that its beneficiaries were Evalyn S. Walde, Avis Snively, John A. Snively, III, and McClendon Pate Snively. The deduction for depreciation claimed on this return included depreciation on the trees in the Dundee and Lake Eloise Groves. Effective as of November 1, 1943, the dissolved Lake Eloise had no assets except an account receivable from the Snively Trust in the amount of $ 135,930. This account was liquidated on August *202 11, 1944, by a cash payment of that amount from the Trustee to Ford J. DeHaven. On the same date and in exchange for the surrender and cancellation of their stock certificates, DeHaven distributed the $ 135,930 in cash to the preferred stockholders of Lake Eloise. Petitioner received as his pro rata share the sum of $ 127,761.13. After the cash distributions to its preferred stockholders, Lake Eloise was left without any assets. The proposed deficiencies and penalty in the amount of $ 312,143.80 have not been paid. On the income tax return filed on behalf of Lake Eloise for the fiscal year 1944 by Ford J. DeHaven, trustee, a loss in the amount of $ 503,225.58 was claimed on account of the sale of the assets of Lake Eloise to the Trustee. The loss was disallowed by respondent, and the statement accompanying the notice of deficiency explained the adjustment as follows: It has been determined that the loss claimed, in the amount of $ 503,225.58, from the transfer of Lake Eloise Groves, Inc., assets to the Snively Trust is not allowable under the provisions of section 24 (b) (1) (A) or section 24 (b) (1) (B) of the Internal Revenue Code. On November 1, 1943, there was an unharvested *203 citrus crop on the trees of the Lake Eloise Groves in various stages of maturity. A small amount of it was mature on that date. Approximately two-thirds of it was picked and marketed after March 1, 1944. The Trustee harvested and sold some of the fruit immediately after the Snively Trust acquired the groves. The fruit consisted of midseason and late-season oranges, grapefruit, and tangerines. Grapefruit mature early and late. Tangerines and midseason oranges mature between November 15 and March 1. Late-season oranges mature after *144 March. On November 1, 1943, the Valencia oranges (late fruit) were the only completely immature fruit in the groves. The citrus crop on the trees on November 1, 1943, was sold after maturity for $ 307,940. In the deficiency notice, respondent determined that Lake Eloise realized additional income in the amount of $ 222,459.56 during the fiscal year 1944 from the sale of fruit. This adjustment was explained in the statement accompanying the statutory notice as follows: It has been determined that the fair market value of fruit on trees when assets were sold to John A. Snively, Jr., Trustee, was $ 222,459.56 which amount is held to be ordinary taxable income *204 within the purview of section 22 (a) of the Internal Revenue Code for the fiscal year ended April 30, 1944. In the revenue agent's report dated May 26, 1946, covering the tax liability of Lake Eloise for the fiscal year 1944, the fair market value of the citrus fruit on its trees at the time of the conveyance was computed as follows: Gross returns for 1943-44 season$ 307,940.00 Less: Picking and hauling$ 46,486.62 Packing house loss12,232.86 Operations to Dec. 31, 194326,760.96 85,480.44 $ 222,459.56 Citrus fruit will not ripen if picked before maturity, and immature citrus fruit, if severed from the tree, has no commercial value. However, immature citrus fruit does possess commercial value in Florida if it is allowed to remain on the trees until ripe. Both Federal law and Florida law prohibit the sale of citrus fruit to consumers if harvested while green. It is common practice in Florida for citrus fruit to be bought and sold on the tree. Such sales are either bulk transactions or at a fixed price per box when harvested. In bulk transactions, the buyer takes the risk of hazards which might destroy the crop; while in fixed-price-per-box transactions, such risks are borne by the grower-seller. *205 Where fruit is sold in bulk before maturity, the agreed sales price usually approximates 50 to 75 per cent of what the crop is expected to bring at maturity. Except for the aforementioned trust deed executed in favor of Growers Loan & Guaranty Co., Lake Eloise had not prior to November 1, 1943, mortgaged or agreed to sell any part of the citrus crop then on the trees of its groves. The fruit on the trees on November 1, 1943, would have had little, if any, market value on November 1, 1943, had it been picked on that date. It was appraised by John at the sum of $ 91,074.60 upon the assumption that it would remain on the trees until ripe, and was set up on his books of account at that figure. 1 *145 The Lake Eloise Groves contained trees as follows: No. of treesPer cent Midseason oranges (Temples, pineapples)8,32828.22 Late oranges (Valencias)10,23934.70 Grapefruit8,12327.53 Tangerines2,8179.55 Total29,507100.00 During the crop year 1943-44, the groves produced the following: Type of fruitNo. of boxes Oranges78,974 Grapefruit57,768 Tangerines9,164 Total145,906 In *206 the fall of 1943, the trend of citrus fruit prices was upward. For the crop years 1940-41 to 1943-44, inclusive, the average-per-box prices on the tree at which Florida citrus fruit sold were as follows: Crop yearOrangesGrapefruitTangerines 1940-41$ 0.79$ 0.33$ 0.64 1941-421.101 .631.34 1942-431.74.921.18 1943-441.811.311.89 During the fall of 1943, the average-on-tree prices at which Florida citrus fruit sold by months were as follows: Prices on tree per box Type of Fruit OctoberNovemberDecember Oranges -- early and midseason$ 2.12$ 2.05$ 1.90 Grapefruit -- seedless1.391.421.28 Grapefruit -- seeded1.171.301.26 Tangerines1.851.95 The number of boxes of fruit in an unharvested citrus crop can be estimated with reasonable accuracy. In the fall of 1943, petitioner and John knew that there was a good crop on the Lake Eloise Groves. On June 10, 1946, the petitioner, by an agreement in writing, admitted that he is a transferee of the assets of Lake Eloise and agreed to pay the amount of any or all Federal income or excess profits taxes finally determined or adjudged to be due and payable by Lake Eloise *207 for the taxable years ended April 30, 1942, to April 30, 1945, inclusive. The transaction as of November 1, 1943, was a bona fide sale, and Lake Eloise had a net operating loss in its fiscal year 1944. There was *146 reasonable cause for the failure of Lake Eloise to file an excess profits tax return for its fiscal year 1944. Lake Eloise paid income taxes for the fiscal year 1942 in the amount of $ 7,510.77 on a normal-tax net income of $ 29,001.76. For the fiscal year 1943, it paid income and declared value excess-profits taxes in the amount of $ 31,702.07. Its net income for declared value excess-profits tax computation for that year was $ 72,354.06; and its normal-tax net income was $ 67,753.32. Claims for refund of the taxes paid in both years were filed by "John A. Snively Jr. -- Trustee Assignee of Lake Eloise Groves, Inc. -- (Dissolved)" on May 12, 1945. The claims were based presumably on the theory that the loss resulting from the sale of the assets of Lake Eloise in the fiscal year 1944 exceeded the net income for the years 1942 and 1943 and, since the loss was a net operating loss carry-back, Lake Eloise had overpaid its taxes for those years; and the Trustee, as assignee of *208 the assets of Lake Eloise, was entitled to a refund of the overpayments. OPINION. The respondent argues that under the provisions of section 24 (b)1*209 of the Code, Lake Eloise may not deduct a loss on account of the sale of its assets to the Snively Trust because it arose from a sale between a corporation and an individual, or group of individuals, who were indirect owners of more than 50 per cent in value of Lake Eloise's stock. Section 24 (b) (1) (B). Or, in the alternative, the loss in not deductible because it arose from a sale between members of a family. Section 24 (b) (1) (A). The respondent's argument with respect to this first issue is that the transaction was between Lake Eloise and John, an individual, or between Lake Eloise and the beneficiaries of the Snively Trust. He contends that the Snively Trust "If a trust at all, it was a dry, naked or passive trust which under Florida law is regarded as executed so as to vest the legal estate in the beneficiaries." He argues that the *147 arrangement was in substance simply a joint venture or a partnership because it filed partnership information returns and was identified on such returns as *210 "a partnership." He states that if the purchaser were John, the sale clearly falls within the ambit of section 24 (b) (1) (B) and section 24 (b) (2) (B) and (D); 2*211 and that, if the purchaser were the "partnership," every person beneficially interested therein was a member of the family of petitioner within the definition contained in section 24 (b) (2) (B) and the loss must be disallowed, since 94 per cent in value of the seller's stock was owned by the petitioner and a constructive ownership of such stock is imputed to his family by application of section 24 (b) (2) (B) and (D). The respondent concluded this argument by stating that, even if the Snively Trust were a valid trust, the loss is nevertheless not deductible because the beneficiaries of the trust were all members of the family of petitioner, citing Estate of Charles C. Ingalls, 45 B. T. A. 787 (1941), affd. 132 F. 2d 862 (C. A. 6, 1943). His alternative argument on this issue is that, if the loss is not disallowed under section 24 (b) (1) (B), it must be disallowed by section 24 (b) (1) (A) because every person beneficially interested to any substantial extent in the sale creating the loss in question was a "member of the family" of the petitioner. He states that the petitioner, the holder of 94 per cent of the stock of Lake Eloise, was the individual who was beneficially interested as the seller and that the individuals who acquired beneficial interests in the property through the sale as buyers were his son, his daughters, and his grandchildren. He cites McWilliams v. Commissioner, 331 U.S. 694">331 U.S. 694 (1947), for the proposition that the section applies to either direct or indirect sales between family members, and its coverage *212 is therefore broad. He concludes by saying that stripped to its bare essentials, it is obvious that the instant sale was made either directly or indirectly between members of the family of the petitioner, that no outsider participated in the transaction or shared its benefits, except the group which held about 6 per cent in value of Lake Eloise's preferred stock, that the net result achieved by the sale was simply a transfer of petitioner's beneficial interest in Lake Eloise's properties to his children and *148 grandchildren, and that looking to the substance of the transaction and ignoring the camouflage created by its form, the sale clearly occurred, directly or indirectly, between "family members." The respondent determined deficiencies in excess profits taxes, declared value excess-profits taxes, and also a penalty for failure to file an excess profits tax return, in addition to deficiencies in income taxes. The transaction that gave rise to the deficiencies was a sale of assets; therefore, according to the notice of deficiency, the sale had to be made by a corporation, or an association taxable as a corporation, if income from the sale could be taxed at excess profits tax rates. *213 This would seem to eliminate section 24 (b) (1) (A) from further consideration since a corporation, or an association taxable as a corporation, is not a member of a family within the purview of that subsection. One of respondent's arguments is that the sale was made indirectly by petitioner, an individual. If that were so, it is difficult to see how a corporate tax could be asserted on the gain from the sale of the fruit. We have found that Lake Eloise was an association taxable as a corporation and, under our holding in Pierce Oil Corporation, 32 B. T. A. 403 (1935), it is settled law that an association taxable as a corporation is to be treated as a corporation for all purposes of the Internal Revenue Code. Respondent, in his argument that the loss should be disallowed under section 24 (b) (1) (B), agrees that "the actual seller in the critical transaction was an association which for tax purposes is regarded as a corporation," citing sec. 3797 (a) (3), I. R. C.; Regs. 111, sec. 29.3797-2; John Crocker, 32 B. T. A. 861 (1935), affd. 84 F. 2d 64 (C. A. 7, 1936); Coast Carton Co. v. Commissioner, 149 F. 2d 739 (C. A. 9, 1945), affirming 3 T. C. 676 (1944). There can be no question *214 but that Lake Eloise suffered a loss, and we think it was an actual loss and not an artificial one as claimed by respondent. We are also of the opinion that the Snively Trust was a valid and not a "naked or passive" trust. The declaration of trust executed by John in December 1941, long before the transaction here in question, placed on him the burden of operating the grove property, keeping accurate records of transactions, and distributing the profits. He was an experienced grove operator. The fact that he erroneously reported the income of the pre-1943 trust on partnership information returns rather than on fiduciary returns is, on the basis of the entire record, unimportant. A partnership is not a taxable entity, and the tax liability of the beneficiaries of a distributable trust is the same whether the income is reported on a partnership or a fiduciary return. Cf. L. A. Westerweller, 17 T. C. 1532 (1953). It is to be noted that the partnership returns themselves indicated that John was the trustee. The Lake Eloise assets were purchased with funds of the *149 Snively Trust, and it seems clear under Florida law that those assets were vested in John as trustee of the Snively Trust. *215 See Whetstone v. Coslick, 117 Fla. 203">117 Fla. 203, 157 So. 666">157 So. 666 (1934); Elvins v. Seestedt, 148 Fla. 408">148 Fla. 408; 4 So. 2d 532">4 So. 2d 532 (1941). We, therefore, conclude that the sale was made by a corporation to a valid trust under the laws of the State of Florida, and that since section 24 (b) (1) (B) relates to sales between an individual and a corporation, the instant sale to a trust is not encompassed therein and the loss should have been allowed. That this result is the proper one to reach is buttressed by the fact that, where Congress intended to disallow losses in transactions where a trust is a party, it did so expressly. In subparagraphs (D), (E), and (F) of section 24 (b) (1), the Code disallows losses on a sale between a grantor and a fiduciary of any trust; or between the fiduciary of a trust and the fiduciary of another trust, if the same person is a grantor with respect to each trust; or between a fiduciary of a trust and a beneficiary of such trust. If Congress had intended that section 24 (b) should apply to transactions between a trust and a corporation, we think it would have made specific provision therefor as it did in the various subparagraphs just referred to relating to other transactions *216 by a trust. In concluding that the loss should have been allowed, we follow the rationale in our holding in Charles B. Bohn, 43 B. T. A. 953 (1941). There we held that the grantor of a trust for the benefit of his daughter could take a loss on a bona fide sale of stock by him to the trust. It is true that the Code now prohibits the deduction of such a loss, but what we said under the state of the law in that case is equally applicable here. We said there, at page 957: The sale here was not between father and daughter, but between father and trustee for daughter. The daughter would not come into full legal possession of the stock until the termination of the trust, and even then her estate might be defeated by her prior decease. No powers over the trust corpus were retained by petitioner, hence rendering inapposite Helvering v. Clifford, 309 U.S. 331">309 U.S. 331. To hold that the transaction falls within section 24 (a) (6) is to read something into an ambiguous statute which is not there, in an attempted clarification ad hoc. Respondent relies on the Estate of Charles C. Ingalls, supra, stating, in substance that the rationale in that case suggests that section 24 (b) (2) (A) is applicable to *217 determine ownership of properties sold and, as a corollary, who participated in the sale as buyer and seller; and that if this is true, there can be no question but that the property involved in this case was bought by members of the family of petitioner, namely, the beneficiaries of the Snively Trust (who were the daughters and grandchildren of petitioner), thus fulfilling the standards of the family rule. In the Ingalls case, an estate sold bank *150 stock to a corporation more than 50 per cent of the outstanding stock of which it owned. We held that the deduction of the loss resulting from such sale was not barred by the provisions of section 24 (b) (1) (B). In arriving at that conclusion, we applied section 24 (b) (2) (A) to determine the indirect owners of the stock sold, and we looked through the estate to determine that the sale was made by a group of individuals, namely, the beneficiaries thereof. We concluded that since no "such individual" owned "more than 50 per centum in value of the outstanding stock" of the purchasing corporation that section 24 (b) (1) did not prohibit the deduction of the loss in question. Thus, the Ingalls case was decided on a different set of facts, *218 i. e., the estate owned the stock of the purchasing corporation, and on the application of a different paragraph of the statute, namely, section 24 (b) (2) (A), and is therefore distinguishable. Our holding on the first issue disposes of issues (2) through (5), inclusive. The parties are agreed that the petitioner is entitled to a net operating loss carry-back if Lake Eloise had a deductible loss on the sale. Whether the sale of the fruit constituted ordinary income and what is its fair market value become moot because, even if we assume that the sale resulted in ordinary income and that the fair market value of the fruit was $ 222,459.56, Lake Eloise still suffered a net operating loss in fiscal 1944 sufficient, when carried back to 1942 and 1943, to offset its income for those years. Furthermore, whether the sale of the fruit constitutes income to the corporation under the facts of this case has recently been decided against the respondent. Burrell Groves, Inc., 16 T. C. 1163 (1951). Since there is no deficiency due for the year 1944, there can be no penalty for failure to file an excess profits tax return for that year. Nor can petitioner be liable as a transferee since there *219 are no deficiencies or penalty owed by the transferor. The sixth and last issue involves the question as to whether Lake Eloise overpaid its taxes for the years 1942 and 1943 and whether this Court has jurisdiction in this proceeding to make a determination with respect to such overpayments. The petitioner, by amendment to the petition, asserted that Lake Eloise overpaid its income tax liability for those years and requests a determination as to the amount of such overpayments. He further requests that we determine that proper claims for refund have been filed, and that we enter a decision that such overpayments are due. The petitioner is here as a transferee of Lake Eloise. We have jurisdiction because of the deficiency determined against Lake Eloise and, in turn, asserted against the petitioner as a transferee. We have held that no deficiency or penalty is due from petitioner as a transferee, and this holding must necessarily conclude the issues properly presented *151 to us. Our findings show that the Trustee filed claims for refund, but he is not a party to this proceeding. DeHaven, as trustee of the assets of the dissolved Lake Eloise, may be entitled to a refund of any overpayments; *220 but he is not a party to this proceeding either. In a transferee proceeding, this Court has no jurisdiction to determine who is entitled to any overpayment of tax made by the transferor and we must therefore leave the parties where we found them on this issue. Decision will be entered under Rule 50. Footnotes

2021-01-27 00:07:45.734325+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343605

01/26/2021 OP 20-0417 Case Number: OP 20-0417 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 13 WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES, and THOMPSON FALLS CONGREGATION OF JEHOVAH’S WITNESSES, Petitioners, v. MONTANA TWENTIETH JUDICIAL DISTRICT COURT, SANDERS COUNTY, and THE HONORABLE ELIZABETH A. BEST, PRESIDING JUDGE, Respondents. ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control In and For the County of Sanders, Cause No. DV-16-84 Honorable Elizabeth A. Best, Presiding Judge COUNSEL OF RECORD: For Petitioners: Bradley J. Luck, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Joel M. Taylor, Associate General Counsel, Watchtower Bible and Tract Society of New York, Inc., Patterson, New York For Alexis Nunez: D. Neil Smith, Ross Leonoudakis, Nix, Patterson & Roach, LLP, Dallas, Texas James P. Molloy, Gallik, Bremer & Molloy, P.C., Bozeman, Montana Submitted on Briefs: December 22, 2020 Decided: January 26, 2021 Filed: q3,,---,6mal•-.— 4( __________________________________________ Clerk 2 Justice Ingrid Gustafson delivered the Opinion and Order of the Court. ¶1 Watchtower Bible and Tract Society of New York, Inc., Christian Congregation of Jehovah’s Witnesses, and Thompson Falls Congregation of Jehovah’s Witnesses (the “Jehovah’s Witnesses”) seek a writ of supervisory control over the Montana Twentieth Judicial District Court, Sanders County, and the Honorable Elizabeth A. Best, presiding judge. The Jehovah’s Witnesses maintain the District Court’s June 10, 2020 Order Amending Order Granting Leave to Proceed with Common Law Negligence Claim and File Second Amended Complaint is in legal error. They ask this Court to direct the District Court to enter final judgment for them and terminate the case, because the doctrine of claim preclusion1 precludes Alexis Nunez from proceeding to trial with her common law negligence claim after remand from this Court in Nunez v. Watchtower Bible & Tract Society of New York, Inc., 2020 MT 3 , 398 Mont. 261 , 455 P.3d 829 . For the reasons explained in this Opinion and Order, we deny the writ because the District Court is not proceeding under a mistake of law. PROCEDURAL AND FACTUAL BACKGROUND ¶2 Alexis Nunez2 sued the Jehovah’s Witnesses for negligence, negligence per se, and breach of fiduciary duty and sought punitive damages. Before trial, the District Court sua 1 Although the parties refer to “res judicata” in their briefing, this Opinion and Order will use the term “claim preclusion.” See McDaniel v. State, 2009 MT 159 , ¶ 27 n.2, 350 Mont. 422 , 208 P.3d 817 (“To promote clarity, the trend has been to use the terms ‘claim preclusion’ and ‘issue preclusion’ in lieu of ‘res judicata’ and ‘collateral estoppel,’ respectively.”). 2 A second plaintiff, Holly McGowan, also brought claims against the Petitioners in the original complaint, but on the record before us, it does not appear she has attempted to revive any of her causes of action post-remand. Despite language in the District Court’s order purporting to include McGowan, we only consider Nunez’s revived and amended claims in this writ of supervisory control. 3 sponte granted partial summary judgment to Nunez, determining as a matter of law the Jehovah’s Witnesses were both negligent per se and the cause of Nunez’s damages for failing to report known abuse of other children by Nunez’s perpetrator to the appropriate legal authorities. During a pretrial discussion about settling preliminary jury instructions, counsel for Nunez indicated Nunez was “fine limiting [her] negligence claim to the negligence per se claim.” The District Court asked to clarify whether Nunez was dismissing her common law negligence claim and breach of fiduciary duty claim, to which counsel responded “Yes, your Honor.” The Jehovah’s Witnesses did not object. At trial, the jury determined Nunez’s damages and awarded punitive damages to Nunez against the Jehovah’s Witnesses. On appeal, this Court determined the District Court erred in determining the Jehovah’s Witnesses were negligent per se and “reverse[d] and remand[ed] for entry of summary judgment in favor of Jehovah’s Witnesses.” Nunez, ¶ 34. ¶3 After remand to the District Court, Nunez moved to amend her complaint to revive her common law negligence claims. The District Court granted her motion. Upon Nunez’s motion, the District Court amended its order to correct a misstatement of fact in its original order. In response to the District Court’s amended order, the Jehovah’s Witnesses filed a petition seeking a writ of supervisory control with this Court. DISCUSSION ¶4 This Court may assume supervisory control, as authorized by Article VII, Section 2(2), of the Montana Constitution and M. R. App. P. 14(3) to control the course of litigation when the case involves purely legal questions and the district court “is proceeding under a mistake of law and is causing a gross injustice.” M. R. App. P. 14(3)(a). Our 4 determination of whether supervisory control is appropriate is a case-by-base decision, based on the presence of extraordinary circumstances and a particular need to prevent an injustice from occurring. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182 , ¶ 5, 361 Mont. 279 , 259 P.3d 754 . ¶5 The Jehovah’s Witnesses first argue the District Court erred as a matter of law in allowing Nunez to amend her complaint to revive the common law negligence claim because claim preclusion precludes such a claim. Watchtower argues the situation presented in this case is no different than if Nunez had filed a separate post-appeal lawsuit in which she asserted a common law negligence claim, and had Nunez done so, there would be no question claim preclusion applies and would bar the claim. Watchtower argues Nunez had the opportunity to place her common law negligence claim in front of a jury and she choose not to do so, thereby precluding her from pursuing that claim now. ¶6 Nunez argues she is neither bringing forth a new claim nor filing a new lawsuit. She characterizes her attempt as seeking “to proceed on the claims that remain following this Court’s remand order.” Nunez points out that this Court in Slater v. Central Plumbing & Heating Co., 1999 MT 257 , ¶ 24, 297 Mont. 7 , 993 P.2d 654 , explained “a reversal extends only to those issues which the appellate court decided in actuality or by necessary implication; it does not affect collateral matters not before the court,” and she maintains her common law negligence claim remains a live issue that has not been decided in actuality or by necessary implication before the District Court or this Court. ¶7 The doctrine of claim preclusion “embod[ies] a judicial policy that favors a definite end to litigation, whereby we seek to prevent parties from incessantly waging piecemeal, 5 collateral attacks against judgments.” Brilz v. Metro. Gen. Ins. Co., 2012 MT 184 , ¶ 18, 366 Mont. 78 , 285 P.3d 494 (quoting Baltrusch v. Baltrusch, 2006 MT 51 , ¶ 15, 331 Mont. 281 , 130 P.3d 1267 ). The doctrine promotes judicial economy and finality of judgments. Brilz, ¶ 18. “Under claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were or could have been raised in that action.” Brilz, ¶ 18 (emphasis added); see also Restatement (Second) of Judgments § 19 (Am. Law. Inst. 1982) (“A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.” (emphasis added)). ¶8 We agree with Nunez that Slater involved the question of whether a party could litigate certain previously raised claims after this Court reversed and remanded the matter. In that case, the general contractor, Edsall, filed an amended crossclaim against its subcontractor Central after the district court had determined Edsall was strictly liable to an injured worker of one of Central’s subcontractors under statute and the jury awarded the injured worker almost $700,000 against Edsall. Slater, ¶¶ 5-8. ¶9 The amended crossclaim contained four causes of action, including breach of contract and negligence by Central. Slater, ¶ 8. Central moved for summary judgment on all claims and Edsall moved for partial summary judgment on the breach of contract claim. The District Court ultimately granted Edsall summary judgment on the breach of contract claim and denied Central’s motion for summary judgment. The court awarded Edsall over $600,000 under the breach of contract claim and Central appealed. Slater, ¶ 11. This Court reversed the District Court’s grant of summary judgment on the breach of contract issue. After remand, Central moved for judgment to be entered against Edsall; Edsall objected, 6 arguing that it was entitled to pursue the other issues raised by its crossclaim. The District Court entered judgment in favor of Central and dismissed the crossclaims. Edsall then appealed. Slater, ¶ 12. ¶10 On appeal, Edsall argued that the negligence claim it had asserted in its amended crossclaim was based on an indemnity provision in the contract it had entered into with Central that would indemnify Edsall against any loss arising out of Central’s negligence. Slater, ¶ 18. Central argued that claim preclusion precluded Edsall from raising this issue at this point in the case. Slater, ¶ 25. This Court disagreed. This Court ultimately determined claim preclusion did not prevent litigation from resuming on previously asserted causes of action after the reversal of a partial summary judgment order on appeal, explaining “Edsall has yet to have a full opportunity to present the issue of indemnity based on Central’s negligence for a judicial determination.” Slater, ¶ 27. Causes of action that were not at issue on appeal were not determined and were not precluded from going forward on remand. Like in Slater, ¶ 31, “[t]his is a situation where [Nunez] pleaded all of [her] claims to a single court . . .; [she] is not pleading new claims.” Despite its similarity in this regard, Slater is distinguishable in that there was never a withdrawal or dismissal of any claim—that factual circumstance though was not the basis for this Court’s ruling. ¶11 The cases upon which Watchtower relies are cases in which the losing party attempted to bring a new cause of action after their initial litigation failed. See Fisher v. State Farm Gen. Ins. Co., 1999 MT 308 , 297 Mont. 201 , 991 P.2d 452 ; Orlando v. Prewett, 236 Mont. 478 , 771 P.2d 111 (1989); Klimpton v. Jubilee Placer Mining Co., 22 Mont. 107 , 55 P. 918 (1899). While Watchtower argues in its petition, “If Nunez had filed a 7 separate post-appeal lawsuit asserting her common law negligence claim, all claim preclusion elements would clearly be present,” the fact is Nunez did not file a separate post-appeal lawsuit. Nunez is seeking to litigate additional claims against the Jehovah’s Witnesses in the same suit. Claim preclusion simply does not apply to the continued proceedings before the District Court. As Nunez points out, the proper doctrine to apply is law of the case. The doctrines of law of the case and res judicata often work hand in glove but are not identical. Two important policies underlie and are common to both principles: judicial economy and finality of judgments. While the law of the case is normally decisive, it does not have the same binding force as the doctrine of res judicata. The United States Supreme Court has stated, concerning the difference between law of the case and res judicata, that “one directs discretion, the other supersedes it and compels judgment.” State v. Gilder, 2001 MT 121 , ¶ 10, 305 Mont. 362 , 28 P.3d 488 (quoting S. Ry. Co. v. Clift, 260 U.S. 316 , 319, 43 S. Ct. 126 , 127 (1922)) (internal citations omitted). As this Court has long explained: The judgments of appellate courts are as conclusive as those of any other court. They not only establish facts, but also settle the law, so that the law as decided upon any appeal must be applied to all the subsequent stages of the cause, and they are res judicata in other cases as to every matter adjudicated. Cent. Mont. Stockyards v. Fraser, 133 Mont 168 , 187, 320 P.2d 981 , 991 (1957) (quoting 2 Abraham Clark Freemen, A Treatise on the Law of Judgments, § 639, 1345-46 (5th Ed. 1925)) (emphasis added). Under the law of the case, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Norbeck v. Flathead County, 2019 MT 84 , ¶ 26, 395 Mont. 294 , 438 P.3d 811 (citing Arizona v. California, 460 U.S. 605 , 618, 103 S. Ct. 1382 , 1391 (1983)). 8  It refers to instances where rulings made at a stage in litigation that are not appealed from when the opportunity to do so exists, become “the law of the case for the future course of that litigation and the party that does not appeal is deemed to have waived the right to attack that decision at future points in the same litigation.” Norbeck, ¶ 26 (quoting McCormick v. Brevig, 2007 MT 195 , ¶ 38, 338 Mont. 370 , 169 P.3d 352 ). ¶12 Based on our review of the record provided to us, nothing in the law of the case prevented the District Court from granting Nunez’s motion to amend her complaint. Our decision in the appeal in Nunez I dealt with the issue of whether the Jehovah’s Witnesses had violated Montana’s mandatory child abuse reporting statute, § 41-3-201, MCA, and were therefore negligent per se. We determined, as a matter of law, the Jehovah’s Witnesses had not violated the statute. The issue of common law negligence was not resolved in either this Court or the District Court. ¶13 Further, nothing in the colloquy between the District Court and counsel before trial prevented the District Court from allowing Nunez to amend her claims later. Nunez’s common law negligence claim was never dismissed with prejudice pursuant to M. R. Civ. P. 41 because: (a) the parties did not stipulate to such dismissal, (b) the Court did not order such dismissal, and (c) the entire action was not dismissed. Rule 41(a) was specifically constructed to prohibit voluntary dismissal of an action after an answer or a motion for summary judgment has been filed to allow the opposing party input (whether by stipulation or by argument to the court) to determine how the action is dismissed. Unless specifically stated, voluntary dismissal of an action is without prejudice. See M. R. Civ. P. 41(a). Further, Rule 41(a) does not allow for piecemeal dismissals of claims in a multiple claim 9 lawsuit. “Instead, withdrawals of individual claims against a given defendant are governed by Fed. R. Civ. P. 15, which addresses amendments to pleadings.” Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683 , 687 (9th Cir. 2005) (citing Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988)).3 Thus, although the District Court and counsel discussed “dismissing” the common law negligence claim, the withdrawal of the claim should be interpreted as an amendment under M. R. Civ. P. 15, rather than as a dismissal under M. R. Civ. P. 41. ¶14 The Jehovah’s Witnesses argue if claim preclusion does not preclude Nunez from moving forward with her common law negligence claim, then M. R. Civ. P. 15 does not permit Nunez to amend her complaint post-trial. Under Rule 15(b), the circumstances for allowing post-trial amendments to the complaint are limited and not applicable here. ¶15 M. R. Civ. P. 15 provides, in relevant part: (a) Amendments before Trial. . . . (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. . . . (b) Amendments During and After Trial. 3 We have held under a prior version of the rules that “Rules 41(a) and 41(d) of the Montana Rules of Civil Procedure are identical in all respects to Rules 41(a) and 41(d) of the Federal Rules of Civil Procedure. Because the language of the state and federal rules is identical, the interpretation of the federal rules [has] persuasive application to the interpretation of the state rules.” U.S. Fid. & Guar. Co. v. Rodgers, 267 Mont. 178 , 181-82, 882 P.2d 1037 , 1039 (1994). The language of Fed. R. Civ. P. 41(a)(1)(B) is no longer identical, but the relevant portions of Fed. R. Civ. P. 41(a)(1)(A) and M. R. Civ. P. 41(a)(1)(A) still are identical, so the federal authority remains persuasive. 10  (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move — at any time, even after judgment — to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. ¶16 We disagree that M. R. Civ. P. 15(b) governs Nunez’s amendments. After this Court reversed the District Court’s pretrial grant of summary judgment on negligence per se, the jury verdict against the Jehovah’s Witnesses was effectively vacated. Negligence per se was the only cause of action between Nunez and the Jehovah’s Witnesses put to the jury. ¶17 Here, the Hells Canyon case is very instructive. In Hells Canyon, the plaintiffs filed a complaint alleging the U.S. Forest Service violated both the National Environmental Policy Act (NEPA) and the Wilderness Act. During oral argument before the district court on the parties’ cross-motions for summary judgment, the plaintiff voluntarily abandoned its Wilderness Act claim. The district court later rejected the plaintiff’s NEPA claim on the merits and, in its order, dismissed the Wilderness Act claim as “moot.” Hells Canyon Pres. Council, 403 F.3d at 685 . The plaintiff subsequently brought another action that included a claim under the Wilderness Act. The district court dismissed the claim as barred by claim preclusion, and the Ninth Circuit reversed. ¶18 The Ninth Circuit first observed the prior summary judgment ruling addressed only the NEPA claim; then “turn[ed] to the somewhat thorny question whether the Wilderness 11 Act claim in [the prior case] was included in the ‘final judgment on the merits’ rendered by the district court.” Hells Canyon Pres. Council, 403 F.3d at 686 . The parties both argued the application of Rule 41, with the Forest Service arguing Fed. R. Civ. P. 41(b) compelled a conclusion the dismissal “operate[d] as an adjudication upon the merits” and the plaintiff arguing that Rule 41(a)(2)’s voluntary dismissal provisions governed, meaning the dismissal was without prejudice because it was not otherwise specified. Hells Canyon Pres. Council, 403 F.3d at 687 . The Ninth Circuit did not find either argument convincing, holding there was no final judgment on the merits of the Wilderness Act claim in the first suit because the district court’s treatment of it “is best construed as approval of an oral amendment of the complaint to excise that claim” under Rule 15. Hells Canyon Pres. Council, 483 F.3d at 687. ¶19 Quoting Moore’s Federal Practice, the Ninth Circuit stated, “Federal Rule of Civil Procedure 15(a) is the appropriate mechanism ‘where a plaintiff desires to eliminate an issue, or one or more but less than all of several claims, but without dismissing as to any of the defendants.’” Hells Canyon Pres. Council, 483 F.3d at 688 (quoting 5 James W. Moore et al., Moore’s Federal Practice ¶ 41.06-1, 41-83 to -84 (2d Ed. 1987)). “[W]hat the district court should have done [with the plaintiff’s Wilderness Act claim], and what we believe it did do, was treat [the plaintiff’s] oral withdrawal of its Wilderness Act claim as a motion to amend its complaint under Rule 15(a).” Hells Canyon Pres. Council, 483 F.3d at 689. Calling the trial court’s failure to so characterize its action as “a technical, not a substantive, distinction[,]” the Ninth Circuit held the claim “was already withdrawn before the district court entered judgment,” no prejudice attaches to a claim properly 12 dropped from a complaint under Rule 15(a) prior to final judgment, and there was no final judgment on the merits of the plaintiff’s Wilderness Act claim in the first suit. Hells Canyon Pres. Council, 483 F.3d at 690. Because the NEPA claim decided in the first suit was not identical to the Wilderness Act claim in the second suit, claim preclusion did not bar the claim. Hells Canyon Pres. Council, 483 F.3d at 690-91. ¶20 Rule 15(a) operates in similar fashion to the facts shown on the Nunez record. When Nunez’s counsel indicated they would move forward only on the negligence per se claim, that should have been construed as an oral motion to amend the pleadings. There was no objection, and the court granted leave—thus satisfying the requirements of Rule 15(a). The claim then was no longer part of the case at the time verdict was rendered. As noted earlier, once this Court reversed the District Court, there was no judgment in effect—our opinion required entry of summary judgment only on the negligence per se claim. At that point, Nunez’s motion to amend the complaint to add the common law claim was not precluded as a matter of law but became a matter of discretion under Rule 15. ¶21 Upon reversal and remand, the parties were no longer in a post-trial posture and Rule 15(a) governs Nunez’s motion to amend her complaint. A district court has discretion to grant or deny a motion to amend a pleading and we review a district court’s decision to amend for an abuse of discretion. Ally Fin., Inc. v. Stevenson, 2018 MT 278 , ¶ 10, 393 Mont. 332 , 430 P.3d 522 . Rule 15(a) provides for liberal amendment of pleadings, “but does not require amendments in all instances.” Lindey’s, Inc. v. Prof’l Consultants, Inc., 244 Mont. 238 , 242, 797 P.2d 920 , 923 (1990). [A] a trial court is justified in denying a motion for an apparent reason “such as undue delay, bad faith or dilatory motive on the part of the movant, 13  repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, futility of the amendment, etc.” Lindey’s, Inc., 244 Mont. at 242, 797 P.2d at 923 (quoting Foman v. Davis, 371 U.S. 178 , 182, 83 S. Ct. 227 , 230 (1962)). In many cases, these grounds for dismissal would weigh heavily against granting a motion to amend post-remand from this Court. In Stanford v. Rosebud County, 254 Mont. 474 , 477-78, 839 P.2d 93 , 95-96 (1992), this Court explained that even under the liberality doctrine of Rule 15, parties are not entitled to amend their pleadings when the motion to amend is made after judgment has been entered against them, but rather such motion is left to the sound discretion of the district court. We explained: A busy district court need not allow itself to be imposed upon by the presentation of theories seriatum. Liberality in amendment is important to assure a party a fair opportunity to present his claims and defenses, but “equal attention should be given to the proposition that there must be an end finally to a particular litigation.” Stanford, 254 Mont. at 478, 839 P.2d at 95-96 (quoting Freeman v. Cont’l Gin Co., 381 F.2d 459 , 469-70 (5th Cir. 1967)). ¶22 In Stanford, the appellants challenged the district court’s denial of their motion to amend their pleadings post-remand to add an entirely new theory that had never been raised in over fourteen years of litigation. Stanford, 254 Mont. at 477, 839 P.2d at 95 . This Court upheld the denial, explaining “the general rule that a court ordinarily will be reluctant to allow leave to amend” when a party seeks “to inject a new theory of recovery via a post-judgment motion to amend pleadings.” Stanford, 254 Mont. at 478, 839 P.2d at 95 . Such amendments are not categorically prohibited, but rather, left to the sound discretion of the district court. See Stanford, 254 Mont. at 478, 839 P.2d at 96 . 14 ¶23 Given the liberal deference given to the trial court under Rule 15, Jehovah’s Witnesses have not shown the District Court abused its discretion in granting Nunez leave to amend her complaint. This is especially true in light of the very unique circumstances of this case that demonstrate good cause why the common law negligence theory, although raised, was not prosecuted in the prior proceedings: This Court reversed a grant of partial summary judgment on appeal. Nunez’s amended complaint does not attempt to add a completely new cause of action, as occurred in Stanford, but revives a cause of action she pleaded in her original complaint. She had withdrawn that claim immediately before trial in reliance on the District Court’s sua sponte pretrial grant of partial summary judgment on negligence per se and causation, which left only the issue of damages for a jury to consider. Given the grant of partial summary judgment, Nunez no longer had to prove to the jury at the first trial that the Jehovah’s Witnesses had a duty, breached that duty, and such breach caused her damages. Notably, Jehovah’s Witnesses have not made a prejudice argument— which would have to be predicated on having to now defend against the common law claim.4 ¶24 It was within the District Court’s discretion to allow Nunez to amend her complaint to revive the common law negligence claim post remittitur from this Court in the interest of justice. 4 Likely because they did not object to the withdrawal of that claim or seek to have the claim dismissed with prejudice. 15  CONCLUSION ¶25 IT IS THEREFORE ORDERED the Petitioner’s Petition for a Writ of Supervisory Control is DENIED and DISMISSED. ¶26 The Clerk is directed to forward a copy of this Opinion and Order to all counsel of record in the Twentieth Judicial District Court, Sanders County, Cause No. DV-16-84, and to the Honorable Elizabeth A. Best, presiding judge. Dated this 26th day of January, 2021. /S/ INGRID GUSTAFSON We concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ SHANE A. VANNATTA District Court Judge Shane A. Vannatta sitting in place of Justice Laurie McKinnon Justice Dirk Sandefur, dissenting. ¶27 I concur that neither equitable claim preclusion (res judicata), nor the related law of the case doctrine, apply on their elements to bar revival of Nunez’s common law negligence claim. I further concur that M. R. Civ. P. 41 (regarding voluntary dismissal of “actions”) does not apply to the claim dismissal at issue here. The Court correctly recognizes that the dispositive question is whether the District Court abused its discretion under M. R. Civ. P. 15(a) in allowing Nunez to revive her previously abandoned common law negligence claim under the particular circumstances of this case. However, the Court’s holding that the District Court did not abuse its discretion here is patently erroneous because it is based on 16 a gross mischaracterization of the pertinent record colloquy between the trial court and counsel before opening statements at trial. The Court’s sanitized characterization of the record glosses over what really happened here, and what the Court is reluctant to recognize, i.e., that Nunez, through extraordinarily experienced and competent counsel, aggressively made a knowing, voluntary, and intelligent decision to abandon her alternatively-pled common law negligence claim to go all-in on her chosen negligence per se claim, based on an unexpected summary judgment that conveniently relieved her of having to prove that the Jehovah’s Witnesses acted unreasonably under the circumstances and, if so, that any such negligence was the actual cause of her sexual abuse, rather than the criminal conduct of her step-grandfather. In the wake of the unfortunate failure of that purely tactical gambit, Nunez and the District Court sheepishly assert, inaccurately, that it would have been senseless, impossible, and/or unduly confusing for her to have continued to prudently prosecute both claims, as she alone pled them, and to then have the jury appropriately instructed in the alternative, as would have occurred in the ordinary course but for her tactical decision. Thus, before even reaching the issue of resulting prejudice to the Jehovah’s Witnesses, no good cause existed to allow Nunez to backup and try the case again on a previously discarded legal theory after her chosen theory failed on appeal. 1. Pretrial and Trial Proceedings on Plaintiffs’ Alternative Negligence and Negligence Per Se Claims. ¶28 In 2004, based on the separate disclosures of two siblings (20-year-old Holly and 17-year-old Peter), elders in the local Thompson Falls Congregation of Jehovah’s Witnesses believed that the siblings’ stepfather, who was also a local church elder, had sexually abused them several years earlier in private settings away from church grounds 17 and apart from church activities. Nunez v. Watchtower Bible & Tract Soc’y of New York, Inc. (Nunez I), 2020 MT 3 , ¶¶ 2-4, 398 Mont. 261 , 455 P.3d 829 . Upon solicited advice from the legal department of a national affiliate (Watchtower Bible and Tract Society of New York, Inc.) that Montana law did not require them to report the alleged sexual abuse to law enforcement under an express statutory exception to the otherwise applicable mandatory duty, the local elders, in accordance with the doctrinal practices of their religion, instead formed a local church “judicial committee” that confronted the stepfather/elder and ultimately concluded that the sexual abuse allegations were true. Nunez I, ¶¶ 4-5. Based on that determination, the elders formally banished the abused siblings’ stepfather from the congregation, with notice in the ordinary course to the church’s chartering national affiliate (Christian Congregation of the Jehovah’s Witnesses, Inc.). Nunez I, ¶ 5. A year later, however, the elders relented and reinstated the abusing stepfather as a member of the congregation. Nunez I, ¶ 5. ¶29 As subsequently alleged, but then unbeknownst to the local elders, the banished and later reinstated stepfather had also been similarly sexually abusing his minor step-granddaughter (Nunez) since 2002. Nunez I, ¶ 6. The abuse of Nunez allegedly started when she was five years old and continued until 2007 when she was ten. Nunez I, ¶ 6. Though not aware of the alleged sexual abuse of Nunez until sometime around 2014, the local elders were aware that her step-grandfather had previously abused his step-children and that Nunez was frequently present in his company at weekend church services after his reinstatement in 2005. Nunez I, ¶ 6. 18 ¶30 In 2016, Nunez and her aunt (Holly) sued the local Jehovah’s Witnesses congregation, and above-referenced national affiliates, for compensatory and punitive damages based on the local elders’ alleged tortious failure to take sufficient action to protect them from sexual abuse by their stepfather/step-grandfather. As their predicate legal theories, they each asserted, in the alternative, separately-pled claims of negligence (breach of common law duty to use reasonable care under the circumstances) and negligence per se (breach of statutory reporting duty1) against the local Jehovah’s Witnesses congregation, inter alia.2 ¶31 Pursuant to M. R. Civ. P. 56, both sides subsequently filed various pretrial motions for summary judgment. As pertinent here, the Jehovah’s Witnesses moved for summary judgment on the plaintiffs’ respective negligence per se claims on the asserted ground that they were exempt from the otherwise applicable statutory reporting duty based on an express exception applicable to the doctrinal reconciliation practices of their religion. The plaintiffs opposed the motion but did not separately seek affirmative summary judgment to the contrary. After entry of a stipulated final pretrial order, but prior to trial, the District Court not only denied summary judgment on the Jehovah’s Witnesses’ motion, but further affirmatively granted the plaintiffs summary judgment that the statutory exemption did not apply and that local church elders were thus negligent per se based on a violation of the Montana statutory duty to report the suspected sexual abuse by the 1 See § 41-3-201, MCA. 2 They further asserted that named national affiliates of the local congregation were liable for the alleged negligence of the local congregation. 19 stepfather/step-grandfather.3 Without reference to the separately-pled common law negligence claim not at issue on the Jehovah’s Witnesses’ motion, the District Court’s written judgment noted that the only matters left for jury determination on the plaintiffs’ respective negligence per se claims were proof of the amounts of their respective compensatory damages claims.4 The case was thus postured for jury trial on the plaintiffs’ respective negligence per se and common law negligence claims, as pled in the alternative. ¶32 However, at trial, upon inquiry from the District Court before opening statements as to necessary preliminary jury instructions, the plaintiffs unequivocally, without qualification or reservation of right, “dismissed their common law negligence claims” and proceeded on their respective negligence per se claims, as significantly narrowed by the prior summary judgment ruling. Nunez I, ¶ 8. At the close of trial, the jury rejected Holly’s negligence per se claim and awarded her nothing. It returned a favorable verdict on Nunez’s negligence per se claim, however, thus awarding her $4 million in compensatory damages, with an additional $31 million in punitive damages. We later reversed the verdict on appeal, holding that, based on the record material facts not subject to genuine dispute, the Jehovah’s Witnesses were statutorily exempt as a matter of law from the otherwise 3 Nunez did not object, nor does she assert here, that the District Court either lacked discretion to grant her summary judgment sua sponte under these circumstances, or that it abused its discretion under M. R. Civ. P. 56 in doing so. 4 The District Court’s imprecise/ambiguous written summary judgment ruling erroneously indicated that the ruling not only relieved the plaintiffs of their burden of proving that the defendants were negligent, based on breach of the statutory reporting duty but also, as to Nunez, relieved her of her related burden of proving to the jury that the Jehovah’s Witnesses failure to report their suspicions regarding the prior abuse was a compensable cause of her step-grandfather’s subsequent abuse, and resulting harm, rather than his criminal conduct. 20 applicable mandatory reporting duty because they were acting in accordance with the doctrinal reconciliation practices of their religion. Nunez I, ¶ 33. We thus remanded for entry of summary judgment in favor of the Jehovah’s Witnesses on the plaintiffs’ negligence per se claims. Nunez I, ¶ 33. The implication of our narrow holding and reversal, i.e., whether it ended the case in light of Nunez’s prior voluntary abandonment of her co-pled alternative common law negligence claim, was not at issue on appeal. 2. Proceedings On Remand—Nunez’s Motion for Leave to Amend to Restate and Revive Previously Abandoned Common Law Negligence Claim. ¶33 On remand, Nunez moved for leave to amend her complaint pursuant to M. R. Civ. P. 15(a) to restate and revive her previously abandoned common law negligence claim. She asserted that: the record in this case establishes that . . . [she] did not dismiss her common law negligence claim with prejudice. To the contrary, she proceeded to trial with a judicial finding that [the Jehovah’s Witnesses] were negligent as a matter of law based on [violation of statutory reporting duty]. To have pursued the common law negligence theories, after the [c]ourt had already determined that [the Jehovah’s Witnesses] were negligent, would have created confusion at trial, and would have made no practical sense because the jury was instructed at the outset that . . . the[y] . . . were negligent as a matter of law and . . . the [only] issue to be decided was the amount of damages to which . . . Nunez was entitled to recover . . . Nunez is entitled on remand to proceed to trial on her common law negligence claim. Over objection of the Jehovah’s Witnesses, and in a written judgment amended to correct a noted factual error in its original Rule 15 ruling, the District Court granted Nunez leave to amend her complaint to restate and revive the previously-abandoned common law negligence claim. The court reasoned that: It is clear from the record, that Nunez [detrimentally] relied on the correctness of the District Court [grant of summary judgment on her negligence per se claim], but carefully dismissed her common law claim 21  without prejudice, so that she could reassert it. Because the [court previously] granted summary judgment for Nunez on the per se claim, there was no need to pursue the common law claim. Nunez clearly relied on the legal correctness of the District Court’s summary judgment order in deciding to dismiss the common law claim. The parties narrowed the issues for trial but took care to dismiss the common law claim without prejudice, leaving the door open for Nunez to reassert it if necessary. (Emphasis added.) The Jehovah’s Witnesses immediately petitioned this Court for exercise of supervisory control and reversal of the District Court ruling on extraordinary review. 3. Supervisory Control—District Court Abuse of Rule 15(a)(2) Discretion. ¶34 Though an extraordinary remedy and no substitute for direct appeal in the ordinary course, supervisory control is necessary and proper here because the District Court is proceeding under a manifest mistake of procedural law for which ordinary appeal is inadequate and which will surely result in gross injustice if not immediately corrected. See M. R. App. P. 14(3); Montana State Univ.-Bozeman v. Mont. First Judicial Dist. Ct., 2018 MT 220 , ¶ 18, 392 Mont. 458 , 426 P.3d 541 ; Stokes v. Mont. Thirteenth Judicial Dist. Ct., 2011 MT 182 , ¶¶ 6-8, 361 Mont. 279 , 259 P.3d 754 ; Truman v. Mont. Eleventh Judicial Dist. Ct., 2003 MT 91 , ¶ 15, 315 Mont. 165 , 68 P.3d 654 ; Park v. Mont. Sixth Judicial Dist. Ct., 1998 MT 164 , ¶ 13, 289 Mont. 367 , 961 P.2d 1267 ; Plumb v. Mont. Fourth Judicial Dist. Ct., 279 Mont. 363 , 370, 927 P.2d 1011 , 1015-16 (1996).5 Regardless of the liberal 5 The Court’s deviation from our usually strict avoidance of unnecessary use of supervisory control is puzzling here given its conclusion that the District Court is not proceeding under a mistake of law, thus begging the question of why or on what basis ordinary appeal will not be an adequate remedy (i.e. why the Court is exercising supervisory control to comment on this issue) if the Jehovah’s Witnesses have indeed failed to show that the District Court is acting under a mistake of law. 22 amendment standard of M. R. Civ. P. 15(a), the factual and legal rationales asserted by the District Court and this Court for not holding Nunez to her purely tactical decision to abandon her alternative common law negligence claim are unsound and indefensible under the particular circumstances of this case. ¶35 After the initial 21-day deadline for the opposing party to file a responsive pleading,6 a party may amend a pleading only upon written consent of the opposing party or prior leave of court. M. R. Civ. P. 15(a)(2). Although the court should “freely” allow amendment “when justice so requires,” M. R. Civ. P. 15(a)(2); Hobble-Diamond Cattle Co. v. Triangle Irrigation Co., 249 Mont. 322 , 325, 815 P.2d 1153 , 1155 (1991), Rule 15(a)(2) does not warrant free amendment as a matter of right in every case. Allison v. Town of Clyde Park, 2000 MT 267 , ¶ 20, 302 Mont. 55 , 11 P.3d 544 ; Stundal v. Stundal, 2000 MT 21 , ¶ 13, 298 Mont. 141 , 995 P.2d 420 . Rather, the party seeking amendment must make an affirmative showing of good cause: (1) as to how or why, upon reasonable diligence, the party could not have earlier asserted or maintained the claim as subsequently requested; (2) why the amendment is warranted in the interests of justice; and (3) that the amendment will not cause unfair prejudice, burden, or expense to the opposing party. See Geil v. Missoula Irrigation Dist., 2004 MT 217 , ¶ 22, 322 Mont. 388 , 96 P.3d 1127 ; Hawkins v. Harney, 2003 MT 58 , ¶ 39, 314 Mont. 384 , 66 P.3d 305 ; Stundal, ¶ 12; Peuse v. Malkuch, 275 Mont. 221 , 227, 911 P.2d 1153 , 1156-57 (1996); Lindey’s, Inc. v. Professional Consultants, Inc., 244 Mont. 238 , 242, 797 P.2d 920 , 923 (1990) (citing 6 See M. R. Civ. P. 15(a)(1). 23 Foman v. Davis, 371 U.S. 178 , 182, 83 S. Ct. 227 , 230 (1962) in re Fed. R. Civ. P. 15); 6 Charles A. Wright & Arthur R. Miller, Wright & Miller’s Federal Practice & Procedure, § 1487 (2004). We review grants or denials of leave to amend a complaint under M. R. Civ. P. 15(a)(2) for an abuse of discretion. Harrington v. Energy W., Inc., 2017 MT 141 , ¶ 10, 387 Mont. 497 , 396 P.3d 114 ; Edgewater Townhouse Homeowner’s Ass’n v. Holtman, 256 Mont. 182 , 187, 845 P.2d 1224 , 1227 (1993). As pertinent here, an abuse of discretion occurs if a court exercises granted discretion arbitrarily without conscientious judgment, or in excess of the bounds of reason, resulting in substantial injustice. Harrington, ¶ 10. ¶36 Here, in a twenty-five paragraph opinion, the Court gives amazingly short-shrift to the critical record colloquy between court and counsel before opening statements at trial, to wit: During a pretrial discussion about settling preliminary jury instructions, counsel for Nunez indicated Nunez was “fine limiting [her] negligence claim to the negligence per se claim.” The District Court asked to clarify whether Nunez was dismissing her common law negligence claim and breach of fiduciary duty claim, to which counsel responded “Yes, your Honor.” [Watchtower] did not object. Opinion, ¶ 2. Based on that summary characterization, the Majority holds that “nothing in the colloquy between [court] and counsel before trial prevent[ed] the District Court from allowing Nunez to amend” her complaint to revive her common law negligence claim after losing on her negligence per se claim on appeal. Opinion, ¶ 13. However, neither the Court’s summary characterization, nor the manifest after-the-fact mischaracterization of the record by Nunez and the District Court, are consistent with, much less supported by, the pertinent record, to wit: 24 [Court]: I'm going to read some preliminary instructions . . . and then opening statements. I am inclined to read plaintiffs’ proposed [i]nstruction . . . which gives [the jury] notice that . . . the Court has already determined . . . as a matter of law the duty was breached and as to causation. The only concern I have with that instruction is there are still causes of action for common law negligence and for breach of fiduciary obligation. And I'm not sure . . . how that would be communicated to the jury so – [Plaintiffs]: Your Honor, . . . my understanding is [that] if you found negligence per se . . . You found negligence. We don’t have a desire to submit any other negligence theories as to 2004. [Court]: . . . [But], as I understand it, there is still an outstanding common law negligence and breach of fiduciary obligation causes of action that the plaintiff continues to maintain. [Plaintiffs]: Your Honor, yes. . . However, we are fine limiting our negligence claim to the negligence per se claim. So . . . our theory is [t]hat the mandatory reporter law [was] violated. [Court]: And let me just ask a question about that. All right. . . . [B]ut what I understand you’re saying is you’re dismissing . . . the common law negligence cause of action? [Plaintiffs]: Yes, your Honor. [Court]: You’re just resting on the negligence per se cause of action. [Court]: That’s correct, your Honor. . . . [Defendants]: . . . So you’re dismissing your . . . negligence [claim] . . . . . . [Plaintiffs]: . . . [O]ur sole negligence theory is negligence per se. And we're happy to tell the Court that that's our sole negligence theory. [Court]: That certainly simplifies it. And does that go with regard to one or both of the plaintiffs, though? 25  [Plaintiffs]: Both. [Defendants]: So my understanding, your Honor, . . . is that -- regardless of how it’s characterized, they’re dismissing negligence . . . and proceeding on a per se with both plaintiffs. Trial Tr. 140:14-143:15 (emphasis added). ¶37 The District Court’s assertion that Nunez “carefully dismissed her common law claim without prejudice, so that she could reassert it” and that the “parties narrowed the issues for trial but took care to dismiss the common law claim without prejudice, leaving the door open for Nunez to reassert it if necessary,” are clearly erroneous, without any basis in the contemporaneous record. Nunez said absolutely nothing, either expressly or implicitly, indicating any intent or reservation of right to reassert the abandoned negligence claim in the event that her favored negligence per se claim might ultimately fail. Nor did the Jehovah’s Witnesses in any regard expressly or implicitly acquiesce, much less agree, that Nunez reserved the right to later revive the abandoned negligence claim if unsuccessful on her chosen negligence per se claim. To the contrary, fairly read as a whole, the actual record clearly indicates that both parties were under the impression that Nunez was intentionally abandoning her common law negligence claim, without reservation of right, to go all-in on her negligence per se claim. Nothing in the record supports a characterization that Nunez “carefully” stated any intent other than to unequivocally, absolutely, and unconditionally abandon her alternative common law negligence claim, without recourse. ¶38 Equally erroneous as justifications for allowing Nunez to revive the abandoned negligence per se claim are Nunez’s assertions, echoed by the District Court, that, in light 26 of the favorable negligence per se ruling, it was senseless and would be confusing to the jury to continue to prosecute the negligence per se claim because the court would be instructing the jury “at the outset that the [Jehovah’s Witnesses] were negligent as a matter of law” and that the only “issue to be decided was the amount of damages to which . . . Nunez was entitled to recover.” As a preliminary matter, the District Court had yet to give any instruction to the jury when Nunez voluntarily abandoned the common law negligence claim before opening statements at trial. If Nunez had elected to prosecute both claims at trial in the alternative, as originally pled and still postured to proceed under the final pretrial order, the court necessarily would have had the task, as it had from the outset, to properly instruct the jury on the alternatively pled claims, thereby providing the jury a guide for navigating through the outstanding factual issues under both of the alternatively pled claims. Any difficulty or complexity in that task was solely the consequence of the tactical pleading and litigation strategy unilaterally chosen by Nunez, not the Jehovah’s Witnesses or the court. Even in that regard, other than cursory assertion, neither Nunez, nor the District Court, have articulated how or why the court could not have adequately instructed the jury on both alternative claims as in any other case where a plaintiff elects to plead alternative claims or theories of liability. ¶39 Negligence and negligence per se are distinct claims or theories of liability predicated on distinct factual breaches of distinct legal duties. Thus, contrary to Nunez’s overly-simplistic argument to the District Court, negligence per se and common law negligence are entirely different strains of negligence, even though either establishes the liability elements necessary to prove the otherwise similar causation and damages of each 27 type of claim. Under modern rules of pleading and practice, plaintiffs may, and commonly do, plead such alternative claims or theories of liability in pursuit of compensatory damages for the same resulting harm compensable under either. See M. R. Civ. P. 8(d)(2); Folsom v. Mont. Pub. Employees’ Ass’n, Inc., 2017 MT 204 , ¶ 21, 388 Mont. 307 , 400 P.3d 706 (internal citations omitted). Whether, or to what extent, the pleading and ultimate prosecution of alternative tort claims makes good sense or is optimal in a given case is unquestionably a strategic or tactical decision in the sole discretion of the plaintiff—not the court or the defendant. To the extent that alternatively pled claims may complicate jury instruction, or be more potentially confusing to a jury than a single liability theory, the party solely responsible for that choice if it goes bad is the plaintiff—not the court or the defendant. Accordingly here, Nunez certainly had the right to tactically abandon her alternative common law negligence claim at the last minute to simplify her theory of liability and burden of proof before the jury. However, it is simply inaccurate and disingenuous for her and the District Court to suggest that she was unfairly prejudiced by that decision, that the decision was unfairly thrust upon her, or that she had no other reasonable choice. In that regard, the District Court’s cursory Rule 15(a)(2) rationale that Nunez had a right to rely on the court’s negligence per se ruling and, after losing on appeal, was thus entitled to backup and retry the case on a different legal theory is wholly unsupported by any legal citation or analysis here. Thus, without exception, none of the reasons asserted by Nunez, and echoed or amplified by the District Court, as justification for allowing her to revive her abandoned common law negligence claim after her chosen 28 theory of liability failed on appeal were valid or defensible under the law or circumstances of this case. ¶40 Thus, in affirming the District Court, this Court does not even reference the lower court’s rationale for granting leave to amend, much less endorse or affirm its correctness. So handicapped, the Majority similarly resorts to cursory reference to the district court’s broad discretion under M. R. Civ. P. 15(a), and then conspicuously skips over to an attempted distinction of this case from our holding in Stanford v. Rosebud County, 254 Mont. 474 , 839 P.2d 93 (1992) (affirming denial of leave to amend to add new theory of liability after prior theory failed on appeal) on the stated ground that Jehovah’s Witnesses did not specifically make a “prejudice argument” here. Opinion, ¶¶ 20-22. The attempted distinction is ineffectual, however, because we did not affirm the denial of leave to amend in Stanford based on resulting prejudice. Stanford, 254 Mont. at 476-78, 839 P.2d at 94-96 . We affirmed the denial of post-appeal leave to amend “based on the time at which the motion [to amend] was made and the lack of a showing of good cause why” the alternative legal theory “was not raised prior to the [adverse] ruling” that defeated the plaintiffs’ chosen claim. Stanford, 254 Mont. at 478, 839 P.2d at 96 (emphasis added). Stanford thus does not serve the purpose for which it is cited. To the contrary, it analogously manifests a similarly conspicuous lack of good cause for post-appeal amendment here. As in Stanford, Nunez has made no showing of good cause for her abandonment of her co-pled alternative negligence claim to aggressively go all-in on her negligence per se claim, except for a purely tactical decision that unfortunately did not pan-out. 29 ¶41 Under these circumstances, it is sheer pedantic nitpicking for this Court to ignore the glaring lack of good cause for allowing the post-appeal revival of a previously abandoned alternative claim based solely on the hyper-technical ground that the Jehovah’s Witnesses “have not made a prejudice argument.” As a threshold matter of law, prejudice is not a relevant consideration under M. R. Civ. P. 15(a)(2) unless and until the movant first shows good cause in the interests of justice, upon the exercise of reasonable diligence, for not earlier pleading the new legal theory or predicate fact at issue. Here, this Court has neither endorsed the District Court’s erroneous good cause rationale, nor articulated any other. Beyond that technical nicety, the resulting prejudice to the Jehovah’s Witnesses of allowing Nunez to retry the case on a different legal theory after her chosen theory failed on appeal is clear, obvious, and indisputable without requirement for magic words or further explanation—the exorbitant cost and burden of unnecessarily having to again defend themselves in a second trial in a relatively-complex, high-dollar civil tort action for no reason other than their opponent’s unnecessary tactical decision gone-bad. ¶42 Based on the record in Nunez I and here, I presume that Nunez’s allegations of sexual abuse by her step-grandfather are absolutely true. I thus have nothing but sincere empathy for her, and sickening disdain and condemnation for his inexcusably horrible conduct and the resulting irreparable harm that he has caused her to suffer to date, and in the future. But the questions of whether the Jehovah’s Witnesses failed to use reasonable care under the circumstances to protect her from her step-grandfather and, whether and to what extent any such failure was a compensable cause of the trauma he caused, remain genuinely disputed questions of fact to which Nunez has already had a full and fair 30 opportunity to litigate before a jury. Empathy is not a legal basis upon which to disregard the governing Rules of Civil Procedure, universally adopted for the purpose of ensuring fair and equal treatment and protection to all civil litigants, plaintiffs and defendants alike. While understandable, the Court’s empathy-driven, result-oriented holding today is not only erroneous and indefensible under the circumstances of this case, but further establishes terrible precedent that will surely foster similar unfair civil trial practice until we are inevitably forced to reverse or limit it as anomalous in the future under a less emotionally-gripping fact pattern. This is a classic case of the old adage that bad facts make bad law. I dissent. /S/ DIRK M. SANDEFUR Justice Jim Rice joins in the Dissenting Opinion of Justice Sandefur. /S/ JIM RICE Justice Jim Rice, dissenting. ¶43 I join Justice Sandefur’s dissenting opinion and would add that Plaintiff’s reinstituted claim should also be barred under the doctrine of judicial estoppel. See Big Sky Civ. & Envtl., Inc. v. Dunlavy, 2018 MT 236 , ¶ 30, 393 Mont. 30 , 429 P.3d 258 (“Judicial estoppel is an equitable principle that bars a party from taking inconsistent positions of fact and law at different points in the same litigation[.]”). Given the particular actions and statements of the Plaintiff and the circumstances of the litigation, as well 31 outlined by Justice Sandefur, judicial estoppel is also an appropriate equitable remedy here to protect fundamental fairness. /S/ JIM RICE Justice Beth Baker, dissenting. ¶44 Though I do not join the Dissents in full, I agree that on the state of this record and the order appealed, the District Court abused its discretion in allowing amendment to reinstate the common law negligence claim. I would grant the petition and reverse. /S/ BETH BAKER 32

2020-01-17 22:02:00.126297+00

Littleton

*252OPINION. Littleton: The first assignment of error is that the respondent excluded from invested capital for 1921, $124,375 representing the actual cash value on January 1,1921, of intangibles consisting principally of patents paid in to the predecessor corporation in 1901 for $475,000 par value of capital stock. This amount is 25 per cent of the par value of the outstanding capital stock of the petitioner on January 1, 1921. The patents which were paid in to the New Jersey corporation in 1901 for shares of stock of that corporation, and which had a value at the date paid in of $124,375, had all expired prior to 1921. No exhaustion for these patents was ever charged off on the books of account of the petitioner or its predecessor. Had such exhaustion been charged off, the surplus at December 31, 1920, would have been reduced by $124,375. The respondent has included in invested capital of 1921 the surplus shown by the books of account at Decern-*253ber 31, 1920. By reason of this fact the respondent has in effect a] lowed the inclusion in invested capital of the $124,375 representing the value of patents originally paid in. In other words, the inclusion in invested capital of the amount claimed by the petitioner for intangibles paid in plus the corrected surplus (the book surplus reduced by $124,375 for exhaustion of patents) would not be an amount greater than that allowed by the respondent. It is to be noted that the petitioner is a corporation which was organized in 1918, and which acquired the assets of the predecessor corporation. No contention was made by the petitioner that the reincorporation of the business under Ohio laws in 1918 operated to increase the invested capital. We think that no such contention could validly be made, since section 331 of the Revenue Act of 1918 would have effectually barred the inclusion in invested capital of any appreciation in the value of assets. Upon the record made, the determination of invested capital by the respondent for 1921 is sustained. The second point in issue is the contention of the petitioner that it should be allowed a deduction from gross income on account of the exhaustion of Patent No. 945,570, which was issued to the New Jersey corporation in 1910. The deduction claimed is based on a .March 1, 1913, value which the petitioner sought to establish. But in seeking to establish a value as of March 1, 1913, the fact seems to have been overlooked that the patent in question was owned by the New Jersey corporation on that date and was only acquired by the petitioner through the acquisition of the stock of the New Jersey corporation in 1918 and the subsequent liquidation of that corporation prior to 1921. Since this was an acquisition subsequent to March 1, 1913, cost to the petitioner would be the basis on which an allowance for the exhaustion thereof would be computed and as to this cost we have no satisfactory evidence from which we can make a finding. No dividends were ever paid by the petitioner or its predecessor on either the common or preferred stock and the surplus of the petitioner at December 31, 1920, which included not only the earnings of the petitioner for 1918, 1919, and 1920, but also the accumulated earnings of the New Jersey corporation from 1901 to 1918, does not make a showing on which we could predicate a cost to the petitioner of the patent in question. It is, of course, true that the greater part of the litigation which was instituted by the petitioner or its predecessor on account of alleged infringements of this patent was settled in favor of the validity of the patent. It further appears, however, that while suits were begun as early as 1911 on account of alleged infringements, the first to be decided by the courts was in 1920 in which a Federal District Court held in favor of the petitioner. This decision was affirmed by the Circuit Court of Appeals in 1925, and the Supreme Court denied a petition *254for a writ of certiorari in the same year. In 1926 the losing party in the aforementioned suit paid to the petitioner $836,000 on account of the infringements which had taken place and, subsequently, on the basis of this decision other parties, who had likewise been infringing upon the patent, made settlement, paying to the petitioner substantial amounts on account thereof. The foregoing events, however, happened well subsequent to the date with which we are here concerned. And, too, we are not overlooking the fact that the patent in question marked a decided change in the ice cream industry and that apparently the only successful manner in which rival concerns could meet the petitioner in competition was by infringing on this patent, thus indicating something of value. It is also true that substantial amounts were expended in the development and protection of the patent in question, both prior and subsequent to its acquisition by the petitioner. While the foregoing facts may indicate a potential value attaching to the patent in question, they afford little help in arriving at its definite cost to the petitioner at the date acquired. In fact, we have no facts from which we can determine either the value of the patent at date of acquisition or the value of whatever stock may have been exchanged therefor. Accordingly, we can not do other than deny the petitioner’s claim for a deduction on account of the exhaustion thereof. Reviewed by the Board. Judgment will be entered for the respondent.

2021-01-27 00:07:48.954076+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343603

01/26/2021 DA 18-0006 Case Number: DA 18-0006 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 12 STATE OF MONTANA, Plaintiff and Appellee, v. TREVOR JOSEPH MERCIER, Defendant and Appellant. APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 16-110 Honorable Matthew J. Cuffe, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Koan Mercer (argued), Assistant Appellate Defender, Helena, Montana For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty (argued), Assistant Attorney General, Rob Cameron, Deputy Attorney General, Helena, Montana Marcia Jean Boris, Lincoln County Attorney, Libby, Montana Argued and Submitted: October 14, 2020 Decided: January 26, 2021 Filed: cir-641.—if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court. ¶1 Trevor Joseph Mercier appeals his convictions after jury trial in the Nineteenth Judicial District Court, Lincoln County, of Deliberate Homicide and Tampering with Physical Evidence. We affirm in part and reverse in part, stating the issues as follows: 1. Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference? 2. If so, did the State meet its burden to demonstrate the error was harmless as to the Deliberate Homicide conviction and the Tampering with Physical Evidence conviction? 3. Did the prosecutor commit plain error during the closing argument? We conclude Mercier’s right of confrontation was violated, requiring reversal of his conviction of Tampering with Physical Evidence. We affirm his Deliberate Homicide conviction. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Mercier and Sheena Devine were in a relationship that ended in early 2016. On the evening of October 5, 2016, an intoxicated Mercier went to Sheena’s residence and began to pelt her vehicle with rocks. At 9:42 p.m., neighbors placed a 911 call to report the vandalism. A sheriff’s deputy was dispatched to the scene, but Mercier had fled prior to his arrival. The deputy spoke with Sheena and advised her to report any further disturbances to authorities. ¶3 Sometime between 10 p.m. and 11 p.m., Mercier returned to Sheena’s residence and again threw rocks at her vehicle. Instead of contacting police, Sheena went outside and 2 confronted Mercier. According to Mercier, Sheena physically attacked him, striking and scratching his face and head. Mercier contended he placed Sheena in a “sleeper hold” to thwart her attack, resulting in Sheena losing consciousness. According to Mercier, he carried Sheena into her living room and laid her down, and, after checking that she was still breathing, left within five to ten minutes. Mercier stated Sheena was breathing and snoring when he left. ¶4 At approximately 10 o’clock the next morning, October 6, Lincoln County Sheriff’s dispatch received a call requesting medical assistance for a possible assault. The call was placed by Sheena’s friend and neighbor who had stopped by Sheena’s residence. An emergency medical technician arrived first and determined that Sheena had died. The EMT immediately contacted dispatch requesting expedited law enforcement support, and Officer Scott Kessel quickly proceeded to the scene. Kessel found the EMT, the friend who had placed the 911 call, and Sheena’s two young daughters, along with her body, which was lying on the floor between a couch and rocking chair. Sheena’s two-year-old daughter was sitting atop her discolored body, and her four-year-old daughter paced aimlessly. Sheena had sustained physical injuries, with heavy bruising above her right eye and large abrasions to her chin and right cheek. Police discovered Sheena’s cellphone submerged in a pot of greasy water in the kitchen sink.1 1 During the investigation, police found a petition for an order of protection on Sheena’s kitchen table. Mercier was previously arrested for assaulting Sheena in February 2016. Sheena had previously obtained an order of protection against Mercier, but it was not in effect at the time of this incident. 3 ¶5 Mercier was taken into custody and interviewed, after which he was charged with three criminal offenses: Criminal Mischief for damaging Sheena’s car by throwing rocks, Deliberate Homicide, and Tampering with Physical Evidence related to Sheena’s submerged phone. Mercier pled guilty to Criminal Mischief, but not guilty to the other two counts. Mercier would defend by claiming Sheena’s death was accidental and that he had not handled her phone. ¶6 Investigators removed Sheena’s phone from the greasy water and found, somewhat remarkably, that it remained operational. However, local technicians struggled to retrieve information from the device, and it was delivered to Special Agent Brent Johnsrud of the Department of Homeland Security, Greeley, Colorado, who specialized in extracting data from electronics. Johnsrud was able to extract and analyze the phone’s data, and prepared a written report of his findings. ¶7 Prior to trial, the State moved for leave to call Johnsrud to testify from Colorado by live two-way video. As grounds, the State offered that the $670 for roundtrip air travel and other travel expenses for purely foundational testimony was impractical. Mercier’s objection was overruled by the District Court, and Johnsrud testified via two-way videoconferencing. Johnsrud’s testimony addressed the methods and equipment employed to retrieve the data from the cellphone, among other foundational purposes. He testified that in order to extract data from mobile devices, a forensic examiner must “at least be able to power on the device,” and that “the raw data extraction” he had completed and provided to Agent Kevin McCarvel of the Montana Department of Justice was “an exact copy of 4 what was contained on the device.” Then, Agent McCarvel testified regarding Johnsrud’s report of the phone’s contents, particularly, two time-stamped photographs retrieved from the phone. ¶8 Mercier asked the jury, consistent with his version of incident, to find him guilty of Negligent Homicide rather than Deliberate Homicide. To counter this position, the State presented a neighbor who testified to seeing Mercier inside Sheena’s residence around midnight. Although the medical examiner was unable to determine a specific time of death, this evidence indicated that Mercier was still in the house one hour after the physical altercation, contrary to Mercier’s account. The State also offered two photographs from Sheena’s phone, one of which was solid black, and the other a blurry image of Sheena’s kitchen. The photographs were timestamped at 12:00:20 a.m. and 12:00:21 a.m. The angle at which the kitchen photograph was taken made it improbable that it was taken by Sheena’s daughters. The photographs were the only evidence offered that Mercier had handled the phone that evening. ¶9 During closing argument, defense counsel, in an apparent attempt to reconcile errors and omissions in Mercier’s recollection of events, repeatedly compared Mercier’s “mistake” in his initial account to law enforcement to “forgetting the eggs” during a trip to the grocery store. Possibly confused by the analogy, but in light of Mercier’s position that he should be found guilty of only Negligent Homicide, prosecutors inferred from this argument that the “mistake” alluded to by defense counsel was the “mistake” of killing Sheena. Defense counsel also employed another grocery parallelism, comparing Mercier’s 5 lifting of Sheena’s unconscious body to “wrap[ping] your arm around essentially what is going to be a very large amount, something similar to almost three bags of potatoes, if not more.” In response, the prosecutor stated in rebuttal that “Sheena Devine’s life was worth more than eggs on a grocery list and three bags of potatoes. And you should be appalled that the value of her life apparently escapes [defense counsel], just as the value of her life to her children and her family was disregarded by Trevor Mercier on the night of October fifth.” Mercier did not object to these comments. ¶10 Mercier was convicted of the Deliberate Homicide and Tampering with Physical Evidence charges, and appeals. STANDARD OF REVIEW ¶11 This Court exercises plenary review of constitutional questions and applies de novo review to a district court’s constitutional interpretations of the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Stock, 2011 MT 131 , ¶ 16, 361 Mont. 1 , 256 P.3d 899 (citing State v. Norquay, 2011 MT 34 , ¶ 13, 359 Mont. 257 , 248 P.3d 817 ). ¶12 All other legal conclusions of law are evaluated for correctness subject to de novo review. City of Missoula v. Duane, 2015 MT 232 , ¶ 10, 380 Mont. 290 , 355 P.3d 729 . Evidentiary rulings are reviewed for an abuse of discretion. Duane, ¶ 10. Abuse of discretion occurs if the district court acted arbitrarily and without the employment of conscientious judgment or in a manner that exceeds the bounds of reason, resulting in 6 substantial injustice. Stock, ¶ 17 (citing State v. Mackrill, 2008 MT 297 , ¶ 37, 345 Mont. 469 , 191 P.3d 451 ). ¶13 We generally do not address “‘prosecutorial misconduct pertaining to a prosecutor’s statements not objected to at trial.’” State v. Aker, 2013 MT 253 , ¶ 21, 371 Mont. 491 , 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343 , ¶ 24, 346 Mont. 286 , 194 P.3d 694 ). However, we may review such issues under the plain error doctrine. State v. Lehrkamp, 2017 MT 203 , ¶ 11, 388 Mont. 295 , 400 P.3d 697 (citing State v. Walton, 2014 MT 41 , ¶ 10, 374 Mont. 38 , 318 P.3d 1024 ). DISCUSSION ¶14 1. Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference? ¶15 The Confrontation Clause of the Sixth Amendment of the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Montana Constitution provides that “[i]n all criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face[.]” Mont. Const. art. II, § 24. ¶16 In its earliest case interpreting the Clause, the Supreme Court explained: The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. 7 Mattox v. United States, 156 U.S. 237 , 242-43, 15 S. Ct. 337 , 339 (1895). The Supreme Court has since summarized the purpose of the Confrontation Clause as “ensur[ing] reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding,” a purpose that is fulfilled by “‘guarantee[ing] the defendant a face-to-face meeting with witnesses appearing before the trier of fact.’” Maryland v. Craig, 497 U.S. 836 , 844, 110 S. Ct. 3157 , 3162-63 (1990) (quoting Coy v. Iowa, 487 U.S. 1012 , 1016, 108 S. Ct. 2798 , 2801 (1988)); see also Coy, 487 U.S. at 1019 , 108 S. Ct. at 2801 (“It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ . . . [E]ven if a lie is told, it will often be told less convincingly.”); California v. Green, 399 U.S. 149 , 158, 90 S. Ct. 1930 , 1935 (1970) (referring to cross-examination as “the greatest legal engine ever invented for the discovery of truth” (citation omitted)). These elements of confrontation serve the purposes of the Confrontation Clause “by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings.” Craig, 497 U.S. at 846 , 110 S. Ct. at 3163 (citing Kentucky v. Stincer, 482 U.S. 730 , 739, 107 S. Ct. 2658 , 2664 (1987)). ¶17 Within these constitutional principles, the Supreme Court has also recognized that physical face-to-face confrontation “is not the sine qua non of the confrontation right,” and has carved out certain exceptions. Craig, 497 U.S. at 847 , 110 S. Ct. at 3164 (citing Delaware v. Fensterer, 474 U.S. 15 , 22, 106 S. Ct. 292 , 295-96 (1985) (per curiam)); Craig, 497 U.S. at 850 , 110 S. Ct. at 3166 (“[I]t is all but universally assumed that there 8 are circumstances that excuse compliance with the right of confrontation.”) (quoting Kenneth W. Graham, Jr., The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99 , 107-108 (1972)); see Stock, ¶ 28 (“[W]e have never interpreted greater protection to entitle a criminal defendant to literal face-to-face confrontation with all witnesses.” (original emphasis)). In Craig, the Supreme Court affirmed a Maryland court that, pursuant to a state statute, permitted a child to testify in a separate room by one-way video stream during the criminal trial of a woman charged with sexually assaulting the child. Craig, 497 U.S. at 841 , 110 S. Ct. at 3161 . The child-witness, prosecutor, and defense attorney all went into a separate room where the examination took place, while the judge, jury, and defendant observed the video from the courtroom. Craig, 497 U.S. at 841 , 110 S. Ct. at 3161 . Prior to the testimony, the prosecution presented expert testimony opining that requiring the child to testify in front of the accused would cause anxiety and agitation, and obstruct the child from properly communicating. Craig, 497 U.S. at 842 , 110 S. Ct. at 3161-62 . In affirming, the Supreme Court explained “that the face-to-face confrontation requirement is not absolute does not, of course, mean that it may be easily dispensed with[,]” and that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850 , 110 S. Ct. at 3166 . 9 ¶18 Craig has subsequently been characterized as adopting a two-prong analysis. See, e.g., United States v. Carter, 907 F.3d 1199 , 1207 (9th Cir. 2018); United States v. Yates, 438 F.3d 1307 , 1313 (11th Cir. 2006) (“[T]he Supreme Court crafted its two-part standard to constrain the use of one-way closed-circuit television[.]” (internal quotation and citation omitted)); State v. Rogerson, 855 N.W.2d 495 , 502-503 (Iowa 2014) (noting it was joining large majority of jurisdictions surveyed in requiring the “Craig standard” of necessity and reliability). Thus, it must first be shown that denial of physical face-to-face confrontation is necessary to further an important public policy. Carter, 907 F.3d at 1205-1206; Rogerson, 855 N.W.2d at 499. The second prong of the Craig analysis requires the trial court to determine that reliability of the testimony is otherwise assured. Carter, 907 F.3d at 1206; Rogerson, 855 N.W.2d at 499. ¶19 Courts are essentially uniform in requiring, under the first prong, “something more than [] generalized findings” of policy concerns. Coy, 487 U.S. at 1021 , 108 S. Ct. at 2803 . “[A] defendant’s right to ‘physical, face-to-face confrontation at trial’ may be compromised by the use of a remote video procedure only upon a ‘case-specific finding’ that [] the denial of physical confrontation ‘is necessary to further an important public policy[.]’” Carter, 907 F.3d at 1208 (quoting Craig, 497 U.S. at 858 , 110 S. Ct. 3170 ); see also Green, 399 U.S. at 189 n.22, 90 S. Ct. at 1951 (Harlan, J., concurring) (noting a criminal defendant’s constitutional rights cannot be neglected merely to avoid “added expense or inconvenience”); Carter, 907 F.3d at 1208 (holding judicial economy and “added expense or inconvenience” is insufficient to extend Craig); People v. Jemison, 10  505 Mich. 352 , 364 (2020) (holding that saving costs is insufficient justification to extend Craig). ¶20 The parties and the District Court appear to interpret Duane as lowering the required showing under the first prong of the Craig analysis because of our statement that video could be employed when physical presence of a witness was “impossible or impracticable,” rather than “necessary.” Duane, ¶ 25.2 However, this comparison is a bit of mixing analytical apples and oranges. Our conclusion paragraph in Duane simply stated it must be shown “the personal presence of the witness is impossible or impracticable,” Duane, ¶ 25 (emphasis added), which left unaltered Craig’s second prong permitting denial of physical confrontation when “necessary to further an important public policy.” Craig, 497 U.S. at 850 , 110 S. Ct. at 3166 (emphasis added). The apparent alarm over our use of the word “impracticable” is dispelled by consideration of the facts in Duane. There, three co-defendants charged with animal cruelty elected to have separate trials. Duane, ¶ 5. The veterinarian who had performed the autopsy on the deceased animal had moved to California between the time of her examination and the trial dates. Duane, ¶ 6. Bringing the veterinarian to Montana for three separate trials, which was described as “an extraordinary expense on the City and a significant burden on [the veterinarian],” Duane, ¶ 6, rendered it a substantial financial and logistical impracticality, if not a literal impossibility, for the City of Missoula to proceed with the misdemeanor charges unless the 2 Indeed, Mercier asks that we overrule Duane. 11 veterinarian appeared by two-way videoconferencing technology. Duane, ¶ 21. The substantial impracticality of the out-of-state witness’s physical appearance in three misdemeanor trials satisfied the requirement of Craig that use of video was necessary to further an important public policy. Duane, ¶ 21. ¶21 To satisfy Craig’s second prong, reliability, the hallmarks of confrontation must be present—the non-physically present witness must be under oath and understand the seriousness of his or her testimony, be subject to cross-examination, and permit assessment of the witness’s veracity by the factfinder. Duane, ¶ 15 (citing Stock, ¶ 23); Craig, 497 U.S. at 857 , 110 S. Ct. at 3170 ; Carter, 907 F.3d at 1206 (noting that the elements of confrontation—oath and competency, cross-examination, and viewable by judge and jury—were present in satisfaction of the second prong). Craig’s second prong is not the primary focus of this appeal.3 ¶22 We pause to note that Craig’s continuing utility has been questioned in two major respects; first, whether its analysis extends to two-way video procedures has led to a circuit split in the federal courts. Compare United States v. Gigante, 166 F.3d 75 , 81 (2d Cir. 1999) (holding Craig did not apply to two-way video systems and instead applying a standard from Federal Rules of Criminal Procedure Rule 15), with Carter, 907 F.3d at 1208 n.4 (“We agree with the Eighth and Eleventh Circuits that [the Second Circuit] is an outlier and that the proper test is Craig” for determining if two-way video procedures satisfy the 3 Mercier states he “does not concede” the reliability prong but did not provide an argument on that question. 12 right to face-to-face confrontation); see also Yates, 438 F.3d at 1313-15 (en banc) (extending Craig’s analysis to two-way video), and United States v. Bordeaux, 400 F.3d 548 , 554-55 (8th Cir. 2005) (same); cf. United States v. Weekley, 130 F.3d 747 , 753 (6th Cir. 1997) (applying Craig’s standard without analyzing one-way versus two-way); United States v. Farley, 992 F.2d 1122 , 1124-25 (10th Cir. 1993) (same). Similarly, state courts have struggled in determining whether Craig extends to two-way video procedures. Compare Rogerson, 855 N.W.2d at 502-503 (applying Craig to two-way video systems while noting that state courts in Florida, Texas, Wyoming, North Carolina, Virginia, New York, Montana, and Pennsylvania had done the same); and State v. Thomas, 376 P.3d 184 , 193-94 (N.M. 2016) (applying Craig’s two-prong test without analysis of one-way versus two-way video procedures), with Jemison, 505 Mich. at 365 (confining the Craig test to its specific facts—one-way video with a child sexual abuse victim). Despite the disagreement among courts, our research leads to the conclusion that the overwhelming majority of jurisdictions have applied Craig to two-way video procedures, a position that we continue to adhere to. See e.g., Duane, ¶ 21 (applying Craig to two-way video testimony without analysis of one-way versus two-way video); Stock, ¶ 30 (same). ¶23 The second challenge to Craig’s utility is whether it has been abrogated by the Supreme Court’s landmark Confrontation Clause decision in Crawford. Crawford v. Washington, 541 U.S. 36 , 124 S. Ct. 1354 (2004). There, Crawford was put on trial for the stabbing death of a man who had allegedly attempted to rape Crawford’s wife. Crawford, 541 U.S. at 38 , 124 S. Ct. at 1357 . Crawford’s wife gave a tape-recorded description of 13 the stabbing, but did not testify at trial pursuant to Washington’s marital privilege rule. Crawford, 541 U.S. at 39-40 , 124 S. Ct. at 1357 . Crawford objected to the admission of the recording, but it was admitted under a hearsay exception. Crawford, 541 U.S. at 40 , 124 S. Ct. at 1358 . Following a comprehensive review of the historical right to confrontation, the Supreme Court determined the wife’s statement during interrogation was testimonial in nature, rather than non-testimonial, and, therefore, the husband’s right to confrontation required the right to cross-examine his wife about the recording. Crawford, 541 U.S. at 68 , 124 S. Ct. at 1374 . The Court explained that the Confrontation Clause was a “procedural [right to test the reliability of the testimonial statement with cross-examination] rather than a substantive guarantee” of reliability, and therefore out-of-court testimonial statements were inadmissible regardless of indicia of reliability. Crawford, 541 U.S. at 61 , 124 S. Ct. at 1370 . ¶24 In a recent decision, the Michigan Supreme Court confined Craig to its specific facts—one-way video, child victim. Jemison, 505 Mich. at 365. That court faced an issue factually similar to the one here: over defense objection, an out-of-state expert was permitted to testify via live two-way video as a cost-saving measure. Jemison, 505 Mich. at 357-58. The court did not analyze the necessity prong in depth, noting only that “expense is not a justification for a constitutional shortcut.” Jemison, 505 Mich. at 364. Rather, the opinion focused on the reliability of testimony adverse to the defense procured by two-way video. The Michigan Supreme Court reasoned that, since Crawford had overruled Roberts—the case that established the “reliability framework” that was the cornerstone of 14 Craig’s second prong—and Craig had been decided under the “reliability framework” of Roberts, Craig was implicitly superseded by Crawford on all confrontation issues not factually identical to Craig. Jemison, 505 Mich. at 355-56; see also Ohio v. Roberts, 448 U.S. 56 , 100 S. Ct. 2531 (1980). ¶25 While “Crawford may call into question the prior holding in Craig to the extent that Craig relied on the reliability of the video testimony[,]” reliability of the two-way video is not independently challenged here, and the only Craig issue to be resolved is whether the necessity prong has been satisfied. Thomas, 376 P.3d at 193.4 However, assuming arguendo that reliability was at issue, we are not prepared to declare the proverbial death knell to Craig just yet, and prefer to await further direction from the Supreme Court. As one commentator has noted, it may be that the two cases may coexist, with Crawford setting the standard for the type of out-of-court statements that are subject to the confrontation right and Craig governing the manner in which in-court testimony may be presented. M.C. McAllister, The Disguised Witness and Crawford’s Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court’s Confrontation Jurisprudence, 58 Drake L. Rev. 481 , 512-13 (2010). Indeed, Crawford did not even address Craig, let alone overrule it, nor was the face-to-face aspect of confrontation specifically at issue in Crawford. Stock, ¶ 25; Thomas, 376 P.3d at 193 (providing survey of other jurisdictions maintaining applicability of Craig as good law). 4 Mercier does not argue that Craig should not be applied. 15 ¶26 Turning back to the case at bar, we consider whether use of two-way video for Special Agent Johnsrud’s testimony was “necessary to further an important public policy” under Craig’s first prong. The State emphasizes that, as articulated by the Supreme Court in Craig, “the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Craig, 497 U.S. at 849 (citation and quotations omitted) (emphasis added). The State thus argues the use of the two-way video was permissible because, pursuant to the public policy of judicial economy, it was unreasonable to incur significant travel expenses and inconveniences for testimony deemed to be purely foundational. The District Court agreed, ruling under Duane that the “significant time and expense” required for Johnsrud to testify in-person outweighed any perceived diminution of Mercier’s confrontation right and the cross-examination’s efficacy. However, as noted by the Ninth Circuit Court of Appeals, quoting Justice Harlan, merely “avoiding added expense or inconvenience” is not sufficient, without more, to dispense with the preference for face-to-face testimony. Green, 399 U.S. at 189 n.22, 90 S. Ct. at 1951 (Harlan, J., concurring); Carter, 907 F.3d at 1208. Even if it were, “case-specific” findings demonstrating the necessity of video testimony were not entered here. We can draw only the conclusion from the record that video testimony was permitted for the stake of generalized judicial economy, with the District Court noting “it is commonplace in this court for expert witnesses[,] such as medical experts and crime and technicians, to testify in criminal cases” by two-way videoconferencing technology, and the State adding that 16 “many Montana attorneys would have readily” stipulated to the foundation or permitted the video testimony. These statements may be correct, but one defendant’s waiver of constitutional right does not establish a precedent for waiver of the right by subsequent defendants, and neither does the practice of other attorneys. Although judicial economy may be an important public policy in other contexts, standing alone, it must yield to the constitutional rights of the accused. ¶27 The State urges that the nature of the testimony—foundational with no substantive force—weighs in favor of approving the video testimony. However, nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies. See U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Clark, 1998 MT 221 , ¶ 22, 290 Mont. 479 , 964 P.2d 766 (reversible error to allow a forensic report to be admitted by the written deposition of a technician absent the physical presence of the technician because neither the nature of the witness nor the evidence which may be entered based upon the witness’s testimony impacts the right to confront the witness). ¶28 We conclude that furtherance of an important public policy to allow Special Agent Johnsrud to testify via two-way videoconferencing was not here demonstrated, and the first prong of the Craig analysis was not satisfied, in error. Johnsrud’s video testimony was improperly admitted. Its necessary exclusion means there was no foundation for admission of the two midnight photographs extracted from Sheena’s cell phone, which must be excluded as well. 17 ¶29 2. Did the State meet its burden to demonstrate the error was harmless as to the Deliberate Homicide conviction and the Tampering with Physical Evidence conviction? ¶30 When reviewing errors, we first determine if the error was a “structural” or “trial” error. State v. Van Kirk, 2001 MT 184 , ¶ 41, 306 Mont. 215 , 32 P.3d 735 . “Structural” errors are those that “‘affect[] the framework within which the trial proceeds, rather than simply an error in the trial process itself.’” Van Kirk, ¶ 38 (quoting Arizona v. Fulminante (1991), 499 U.S. 279 , 310, 111 S. Ct. 1246 , 1265). Structural errors are reversible and require no additional analysis for prejudice. Van Kirk, ¶ 39. Conversely, trial errors, which typically occur during the presentation of the case to the jury, are “amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial” and are subject to harmless error review. Van Kirk, ¶ 40 (citing Montana’s harmless error statute, § 46-20-701(1), MCA). ¶31 A constitutional deprivation of the defendant’s confrontation right is a trial error and is subject to harmless error review. Carter, 907 F.3d at 1210. Pursuant thereto, the State, as the “beneficiary of a constitutional error[,]” bears the burden of proving that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 , 24, 87 S. Ct. 824 , 828 (1967). The “assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation[,]” and instead harmlessness must “be determined on the basis of the remaining evidence.” Coy, 487 U.S. at 1021-22 , 108 S. Ct. at 2803 . We consider “the importance of the witness’ testimony in the prosecution’s case, whether the 18 testimony was cumulative, [and] the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points[.]” Delaware v. Van Arsdall, 475 U.S. 673 , 684, 106 S. Ct. 1431 , 1438 (1986). However, “overwhelming evidence” absent the tainted evidence in favor of guilt will not alone suffice to uphold a conviction. Van Kirk, ¶ 43 (overruling prior decisions that analyzed whether there was “overwhelming evidence” to support the conviction because such a test is a subjective inquiry that weighs the relative volume of the evidence presented). Rather, we employ the more restrictive “cumulative evidence” test, which “looks not to the quantitative effect of other admissible evidence, but rather to whether the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence proved.” Van Kirk, ¶ 43 (original emphasis). ¶32 Here, the evidence to be analyzed is the two photographs extracted from Sheena’s cell phone, one of the kitchen area of Sheena’s home and both time-stamped around midnight on the night of the incident. Despite exclusion of the photographs, which gave rise to an inference that Mercier was in Sheena’s home at midnight, the State’s presented case remained viable on the basis of other admitted evidence sufficient to prove the same point, and which supported a finding of guilt. Indeed, this evidence was potentially even stronger than the excluded photographs. The State presented an eyewitness who testified to observing Mercier inside Sheena’s residence around midnight—the same time the photographs were taken in the house and time-stamped—closing the shades of Sheena’s kitchen window. Thus, the photographs were cumulative on the timing point with the testimonial evidence provided by the eyewitness. Mercier contends the eyewitness’ 19 account was impeached and therefore did not constitute cumulative evidence on the point. However, Mercier’s argument is an interpretational second-guessing of the evidence. It is not his role or ours when assessing harmless error to make credibility judgments about the overlapping evidence, but rather to assess whether sufficient cumulative evidence was presented to prove the same point, and here there was. An attempt to determine how jury perception or the eyewitness testimony would have been altered absent the confrontation issue would “involve pure speculation[.]” Coy, 487 U.S. at 1022 , 108 S. Ct. at 2803 . Moreover, the excluded photographs themselves did not identify Mercier as taking the photographs; conversely, and more compellingly, the witness’ testimony affirmatively placed Mercier inside the home around midnight. Consequently, because evidence other than the tainted photographs was presented demonstrating Mercier’s presence in the home at midnight, in contradiction to his version of the incident, the State has carried its burden of showing that the Confrontation Clause violation was harmless beyond a reasonable doubt as to the Deliberate Homicide conviction. That conviction is affirmed. ¶33 However, we reach the opposite conclusion regarding the Tampering conviction. The State offered no other physical or testimonial evidence tending to prove that Mercier handled Sheena’s phone or otherwise tampered with it during the time in question. The only evidence connecting Mercier to use of the phone was the two photographs time-stamped at midnight, combined with the angle of the photograph taken of the kitchen, which gave rise to an inference that Mercier, and not a child, had taken the photograph. Because the only evidence offered by the State supporting Mercier’s handling of the phone 20 is tainted by the Confrontation Clause violation, the State has not carried its burden to prove the error was harmless beyond a reasonable doubt, and his conviction for Tampering with Physical Evidence must be set aside. ¶34 3. Did the prosecutor commit plain error during the closing argument? ¶35 The purpose of plain error review is to correct an otherwise objectionable error not objected to at trial that impacts the “fairness, integrity, and public reputation of judicial proceedings.” State v. Lawrence, 2016 MT 346 , ¶ 9, 386 Mont. 86 , 385 P.3d 968 (internal citation and quotation omitted). We invoke plain error review sparingly, on a case-by-case basis, and only “in situations that implicate a defendant’s fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” Aker, ¶ 21 (citing State v. McDonald, 2013 MT 97 , ¶ 8, 369 Mont. 483 , 299 P.3d 799 ). ¶36 Mercier contends the State’s comments on defense counsel’s asserted undervaluing of Sheena’s life was a “wholly improper ad hominem attack on defense counsel” and “create[d] a prejudicial link between defense counsel’s alleged immorality and [Mercier’s] guilt.” Mercier argues the comments are an appropriate basis for a new trial. The State responds that, despite Mercier’s current characterization of the statement, a review of the entirety of defense counsel’s summation indicates the prosecution could have reasonably understood defense counsel “to be analogizing Mercier’s ‘mistake’ in killing Sheena to the mistake of leaving eggs off a shopping list[,]” especially in light of Mercier’s request to be 21 convicted of Negligent Homicide. The State argues that, in any event, the prosecutor’s response was “unmistakably a comment ‘on the gravity of the crime charged[.]’” ¶37 We consider claimed improper statements by the State during closing arguments “in the context of the entire argument.” State v. Makarchuk, 2009 MT 82 , ¶ 24, 349 Mont. 507 , 204 P.3d 1213 (citing State v. Roubideaux, 2005 MT 324 , ¶ 15, 329 Mont. 521 , 125 P.3d 1114 ). Prosecutorial misconduct calls for reversible error if it prejudices a defendant’s substantial rights. Lehrkamp, ¶ 15 (citation omitted). Such prejudice is not inferred and the “‘defendant must demonstrate, from the record, that the prosecutor’s misstatements prejudiced him.’” Lehrkamp, ¶ 15 (quoting State v. Dobrowski, 2016 MT 261 , ¶ 28, 385 Mont. 179 , 382 P.3d 490 ). Prosecutors must refrain from offering personal opinions, but may appropriately comment on “‘the gravity of the crime charged, the volume of evidence, credibility of witnesses, inferences to be drawn from various phases of evidence, and legal principles involved[.]’” McDonald, ¶ 14 (quoting State v. Green, 2009 MT 114 , ¶ 33, 350 Mont. 141 , 205 P.3d 798 ). ¶38 A prosecutor who comments on defense counsel’s disregard for the value of human life—as opposed to a defendant’s potential disregard for life as evidenced by his actions— is certainly on thin ice. However, at a minimum, defense counsel’s grocery analogies, especially in view of Mercier’s trial position that he was guilty of negligently killing Sheena, were awkwardly framed, conveying an intent that was not entirely clear. Whether or not they were correctly understood by the prosecutor, we conclude on the basis of the record as a whole that review of this potential error is not necessary to prevent a “manifest 22 miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” Aker, ¶ 21. We conclude that Mercier’s right to a fair trial was not undermined by the prosecutor’s closing argument, and we affirm the Deliberate Homicide conviction. CONCLUSION ¶39 For the reasons discussed herein, we conclude the District Court erred by allowing Special Agent Johnsrud to testify, over Mercier’s objection, via two-way video. We affirm Mercier’s conviction for Deliberate Homicide because the error was harmless, and the prosecution’s closing statements did not warrant plain error review. We reverse Mercier’s conviction for Tampering with Physical Evidence because the State did not demonstrate the Confrontation Clause error was harmless. ¶40 Affirmed in part, reversed in part, and remanded for entry of an amended judgment. /S/ JIM RICE We concur: /S/ BETH BAKER Justice Ingrid Gustafson, specially concurring and dissenting. ¶41 I concur with the plurality Opinion (Opinion) that application of the analysis in Craig is appropriate to determine whether the District Court properly abrogated Mercier’s right to face-to-face confrontation of the witness. I also agree the two-way video 23 conferencing in this case was not demonstrated to further an important public policy such that denial of in-person, face-to-face confrontation was not “necessary” under the first prong of Craig. I agree with the Opinion that this error was harmless as to Mercier’s Deliberate Homicide conviction and concur in affirming that conviction, but such error was not harmless in regard to his conviction for Tampering with Physical Evidence such that I concur in reversing his conviction on that charge. I further concur with the Opinion as to issue 3. I write as I believe the Opinion leaves confusion as to how Duane should be interpreted. In discussing Duane, the Opinion suggests that “an extraordinary expense” rather than a usual or ordinary expense would meet the necessity standard under the first prong of Craig. Opinion, ¶ 20. As the Opinion notes, the parties and the District Court appear to interpret Duane as lowering the required showing under the first prong of Craig, but then asserts such is not the case as our conclusion in Duane “simply stated it must be shown ‘the personal presence of the witness is impossible or impracticable[.]’” Opinion, ¶ 20 (emphasis in original). My interpretation of Duane is similar to that of the parties and the District Court in that “impossibility” or “impracticality” is not the same as “necessary to further an important public policy” and thus, appears to lower the required showing of necessity under the first prong of Craig. As noted in the Opinion in its discussion of Jemison—with which I agree—expense is not a justification for a constitutional shortcut. Opinion, ¶ 24. In Duane, there may have been considerations other than “extraordinary expense” necessitating denial of in-person, face-to-face confrontation in furtherance of an 24 important public policy, but such were not articulated and analyzed.1 The holding in Duane appears to conclude or suggest that prohibitive expense forms the basis of necessity and that Craig’s necessity requirement is replaced with or includes an impracticality standard. I agree with the Special Concurrence that the Opinion’s efforts to not overrule Duane on the basis of the meager distinctions it makes are unconvincing. To avoid further confusion over the interpretation of Duane, I would clarify or overrule Duane to eliminate its conclusion or suggestion that prohibitive expense forms the basis of necessity and to eliminate its conclusion or suggestion that Craig’s necessity requirement is replaced with or includes an impracticality standard. /S/ INGRID GUSTAFSON Justices Laurie McKinnon and James Jeremiah Shea join in the Special Concurrence and Dissent of Justice Gustafson. /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA 1 A myriad of circumstances may present such as personal circumstances of witnesses, community safety, protection of constitutional rights like that to speedy trial, or a public health crisis which could ultimately justify abrogation of in-person, face-to-face confrontation as necessary to further an important public policy. But, expense of prosecution, while no doubt a consideration in determining if pursual of a criminal cause warrants it, cannot be a justification for a constitutional shortcut. 25 Chief Justice Mike McGrath, specially concurring. ¶42 While I agree with the result reached by the majority under the harmless error standard, I write separately to express my continued belief that modern two-way videoconferencing technology is a constitutionally-acceptable alternative to physical, in-person courtroom testimony, so long as the relevant indicia of reliability at the heart of the confrontation clause are present. See Duane, ¶¶ 29-30 (McGrath, C.J., concurring). The task of interpreting constitutional rights in light of modern technological developments remains centered on purpose and effect, as exemplified by the Fourth Amendment’s continuing vitality with the advent of new surveillance technology and the First Amendment’s ongoing role in protecting the free interchange of ideas transmitted through an ever-changing array of modern communication methods. Likewise, interpretation of the Sixth Amendment’s right of confrontation must examine the practical effect of new technology on the interests protected by the Confrontation Clause. I believe that the majority Opinion disregards our precedent and needlessly tethers technological advancements—regardless of the constitutionally-significant distinctions among them—to a decades-old standard fashioned for the limited purpose of addressing one particular technology not at issue here. ¶43 “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845 , 110 S. Ct. at 3163 . To achieve this degree of reliability, the Confrontation Clause: 26  (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; and (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility. Craig, 497 U.S. at 845-46 , 110 S. Ct. at 3163 (quotations and alterations omitted). These factors—formality, cross-examination, and jury observation of witness demeanor—should guide our interpretation of the Confrontation Clause through a changing technological landscape. ¶44 Though it offered a rule for a very specific situation—testimony by a child victim via one-way video—Craig did not claim that this rule was the final word on any and all forms of technologically-mediated testimony. Rather, Craig emphasized the purpose-driven nature of Confrontation Clause interpretation, noting that it: reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case. We have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. Craig, 497 U.S. at 849 , 110 S. Ct. at 3165 (citations and quotations omitted, emphasis in original). An interpretation sensitive to the purposes of the Confrontation Clause demands a more nuanced approach than that of simply repurposing the rule Craig fashioned for one particular technology—one-way video—to all conceivable forms of communication. There is certainly nothing inherently troubling in technologically-aided communication, as 27 evidenced by the continued uncontroversial use of eyeglasses and hearing aids to facilitate communication between individuals in a courtroom. ¶45 In fact, a fair reading of Duane—what I view as the controlling case on testimony via modern two-way video technology—demonstrates that this Court has already joined with those that have found Craig’s rule for one-way video testimony inapplicable elsewhere. See United States v. Gigante, 166 F.3d 75 , 81 (2d Cir. 1999); People v. Jemison, No. 157812, 2020 Mich. LEXIS 1076 , at *14 (June 22, 2020). Contrary to the majority’s reasoning, Duane did not cite to or purport to apply the Craig standard—necessity to further an important public policy in addition to adequate assurances of reliability—when addressing the issue of witness testimony via Skype. Compare Duane, ¶ 15 with Craig, 497 U.S. at 850 , 110 S. Ct. at 3166 . The Duane Court cited Craig merely for the uncontroversial proposition that the Confrontation Clause serves to “‘ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding’” but does not guarantee criminal defendants “‘the absolute right to a face-to-face meeting with witnesses against them at trial.’” Duane, ¶ 15 (quoting Craig, 497 U.S. at 844-45 , 110 S. Ct. at 3163 ) (emphasis in original). ¶46 The closest the Duane Court arrived to applying Craig’s necessity requirement was when it noted that requiring a witness to travel from California “would impose a prohibitive expense on the City and a significant burden” on the witness. Duane, ¶ 21. The majority here attempts to repurpose Duane as an application of the Craig test by turning “prohibitive expense” into a form of “necess[ity],” as required by Craig. However, expense and 28 inconvenience are not sufficiently “important” government interests to satisfy the Craig analysis. United States v. Carter, 907 F.3d 1199 , 1208 (9th Cir. 2018) (citing California v. Green, 399 U.S. 149 , 189, 90 S. Ct. 1930 , 1951 n.22 (1970) (Harlan, J., concurring)). The majority Opinion seemingly attempts to find an exception, unsupported by caselaw, for expenses great enough to be deemed substantially impractical or prohibitive. This rule will require trial courts to take on the role of auditor, conducting in-depth financial analysis of a government budget and making a ruling on its fiscal status. ¶47 Neither do Duane’s facts support the majority’s conclusion that Duane represents a Craig analysis and is distinguishable from the present case on the basis of heightened expense. The majority points to the fact that the three defendants initially charged in the Duane proceeding had elected to have separate trials, potentially tripling the travel costs of bringing the witness from California for the prosecution of each defendant. However, even assuming such tripling could conclusively establish the existence of a “prohibitive” expense, it was not material to the Duane holding, as the Duane Court explicitly noted that “[t]his appeal pertains only to Duane,” not the independent proceedings against the other two defendants. Duane, ¶ 5. These efforts to neither follow nor overrule Duane on the basis of such meager distinctions are unconvincing. ¶48 I believe that the proper reading of Duane is one in which this Court properly declined to extend the test articulated in Craig for one-way video to modern two-way videoconferencing technology. The one-way technology addressed in Craig possesses fewer indicia of reliability than the two-way, real time communication addressed here. 29 Duane properly centered its analysis on the foundational principle of reliability while replacing Craig’s “necess[ity]” requirement with an “impracticab[ility]” standard more suited to the improved technology. See Duane, ¶ 25. ¶49 The distinction between “necess[ity]” in Craig and “impracticab[ility]” in Duane reflects the fundamental difference between the technologies described. The one-way video technology used in Craig was explicitly intended to eliminate the defendant’s presence in order to protect psychologically-fragile child victims from the trauma of viewing their alleged abuser while giving testimony. See Craig, 497 U.S. at 857 , 110 S. Ct. at 3170 . As a result, the Craig Court was compelled to fashion a necessity requirement. In contrast, here, as in Duane, the modern two-way video in real time provides all of the benefits of a physical face-to-face communication, as was contemplated by the “face to face” provision of Article II, Section 24, of the Montana Constitution. ¶50 Rather than purposefully obscuring a fundamental aspect of live testimony, the modern two-way telecommunications technology at issue here is intended to transmit substantially the same information as that shared by individuals physically present in the same room. As the COVID-19 pandemic has forced many of us to discover, such technology can now readily host a wide range of important interactions, including court proceedings such as the oral argument in this appeal. As technology continues to advance, it will be unsurprising if such tools eventually come to provide a virtual “face-to-face” sensory experience equally as rich as one premised on physical proximity. Mechanical application of the Craig standard is unhelpful in this dynamic technological context. 30 ¶51 The Duane standard allows a court to effectively vindicate constitutional rights without falling into technological obsolescence. I would fully adopt Duane’s rationale for the use of Skype two-way real-time technology to the facts of this case. The majority’s holding imposes an irrational requirement for the use of this technology—especially for a foundational issue—that is unnecessary and not required by Craig. /S/ MIKE McGRATH Justice Dirk Sandefur joins the Special Concurrence of Chief Justice Mike McGrath. /S/ DIRK M. SANDEFUR 31

2021-01-27 00:07:58.475859+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343604

01/26/2021 DA 20-0123 Case Number: DA 20-0123 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 18N STATE OF MONTANA, Plaintiff and Appellee, v. JASON HARRISON, Defendant and Appellant. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DC-2018-03 Honorable Luke Berger, Presiding Judge COUNSEL OF RECORD: For Appellant: Brent Flowers, Beebe & Flowers, Helena, Montana For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Steven C. Haddon, Jefferson County Attorney, Andrew Paul, Deputy County Attorney, Boulder, Montana Submitted on Briefs: November 18, 2020 Decided: January 26, 2021 Filed: cir-641.—if __________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Jason Harrison argues the District Court erred by denying his motion to withdraw his guilty plea. Harrison argues his plea was not voluntary because (1) he did not understand the direct consequences of the plea agreement; and (2) his counsel’s performance was ineffective. Therefore, Harrison contends, good cause exists to allow him to withdraw his plea. We affirm. ¶3 Harrison was charged with one count of felony Deviate Sexual Conduct, two counts of misdemeanor Violation of an Order of Protection, six counts of felony Violation of an Order of Protection, two counts of felony Attempt/Violation of an Order of Protection, and one count of Attempt/Tampering with a Witness. Pursuant to a plea agreement, Harrison pled guilty to two counts of misdemeanor Violation of an Order of Protection, three counts of felony Violation of an Order of Protection, and one count of felony Attempt/Tampering with a Witness. The State agreed to dismiss the remaining charges and to recommend six months in jail with all but time served suspended on the misdemeanor offenses, two years to the Department of Corrections (DOC) on the first count of felony Violation of an Order of Protection to run concurrent to the misdemeanor sentences; two years to the DOC on the second count of felony Violation of Order of Protection to run consecutive to 2 the misdemeanor sentences; one year to the DOC on the third count of felony Violation of an Order of Protection, consecutive, and ten years to the DOC suspended, consecutive. ¶4 Harrison signed the plea agreement and acknowledged the following: I the undersigned Defendant, after full discussion of the charge(s) and penalties with my defense counsel, and after being fully advised of my rights to a jury trial, my understanding of my right to persist in my plea of not guilty and to demand a jury trial, do hereby accept the above offer and agree to enter plea(s) of guilty to the charge(s) specified. I hereby knowingly waive all objections to any substantive defect in said charge(s) and my right to a jury trial on the charge(s). I further understand that the offer made by the State is dependent upon the accuracy of my criminal history as I have represented it. My criminal history is as set out in the State’s file. I understand that the Court is not bound by this Agreement and may impose the maximum penalty for the offense(s) charged. ¶5 On July 18, 2018, the District Court held a change of plea hearing and accepted Harrison’s guilty pleas entered pursuant to the plea agreement. On September 26, 2018, the District Court held a sentencing hearing, at which Harrison acknowledged he had the opportunity to ask his attorney questions regarding the plea agreement and that he understood the agreement. The District Court explicitly informed Harrison of his rights and Harrison acknowledged that his attorney had fully advised him of his rights. Harrison informed the District Court he was satisfied with his representation and that he understood his rights. When the District Court asked if anyone was forcing him to plead guilty Harrison responded “no.” ¶6 The District Court sentenced Harrison to six months in jail, suspended, for the two misdemeanor offenses violating the order of protection. The District Court also sentenced Harrison to four years in prison for the three felony offenses violating the order 3 of protection, running concurrently with the other sentence. On November 5, 2018, Harrison applied to the Sentence Review Division for a reduction of his sentence. The Sentence Review Division affirmed Harrison’s sentence. ¶7 On May 31, 2019, Harrison moved to withdraw his guilty pleas. In supporting affidavits, Harrison alleged his attorney pressured him into accepting a plea agreement rather than proceeding to trial. Harrison alleged his attorney assured him there was no chance he would receive a prison sentence or otherwise further incarceration if he pled guilty. Harrison’s mother alleged in her affidavit that Harrison’s attorney assured her and Harrison that he would receive a probationary sentence if he pled guilty. Harrison claimed at the hearing, “he had always wanted to go to trial.” ¶8 Harrison’s attorney filed an affidavit denying Harrison’s assertions. Harrison’s attorney provided a detailed list of meetings with Harrison. On one occasion Harrison expressed a desire to proceed to trial but Harrison frequently vacillated between accepting the plea agreement or proceeding to trial. Harrison often told his attorney “tell me what to do.” Harrison’s attorney alleged that he discussed the strengths and weaknesses of the case while explaining defenses and the lack of defense to the specific charges. Until the parties reached a plea agreement, Harrison’s attorney urged that he prepared Harrison’s case as if it would proceed to trial. Harrison’s attorney reviewed the proposed plea agreement with Harrison line by line in person and made clear to Harrison he could not give him any assurances about the sentence the court would ultimately impose. 4 ¶9 On September 18, 2019 the District Court held a hearing on Harrison’s request to withdraw his guilty pleas. At the hearing, Harrison acknowledged the plea agreement dismissed six of the twelve charges against him, which reduced his criminal liability. ¶10 The District Court denied Harrison’s motion to withdraw his guilty pleas. The District Court concluded Harrison had entered his guilty pleas voluntarily pursuant to a plea agreement that was beneficial to him. The District Court concluded that Harrison had effective representation regarding the entry of his guilty pleas. ¶11 The question of whether a plea is voluntarily made is a mixed question of law and fact. State v. Prindle, 2013 MT 173 , 370 Mont. 478 , 304 P.3d 712 . This Court reviews a district court’s denial of a motion to withdraw a guilty plea de novo. State v. Shepard, 2010 MT 20 , ¶ 7, 355 Mont. 114 , 225 P.3d 1217 . This Court reviews the district court’s underlying factual findings regarding the voluntariness of the plea to determine if those findings are clearly erroneous. Prindle, ¶ 16. ¶12 Ineffective assistance of counsel claims are mixed questions of law and fact which we review de novo. State v. Ward, 2020 MT 36 , ¶ 15, 399 Mont. 16 , 457 P.3d 955 . ¶13 Harrison argues on appeal that good cause to withdraw his guilty plea exists because he did not understand the direct consequences of his guilty pleas. Harrison alleges he reasonably believed the District Court would not impose a prison sentence because of his attorney’s comments. We disagree. ¶14 Montana law permits a district court to allow a defendant to withdraw his guilty plea within one year of final judgment for “good cause.” Section 46-16-105(2), MCA. Good 5 cause exists when a defendant’s guilty plea was involuntarily entered. Prindle, ¶ 17. A plea must be voluntary because the defendant is waiving his constitutional rights to not incriminate himself and to a trial by jury. Prindle, ¶ 17. A guilty plea is valid if made knowingly, voluntarily, and intelligently. State v. Keys, 1999 MT 10 , ¶ 12, 293 Mont. 81 , 973 P.2d 812 . The burden is on the defendant to show that the plea was involuntarily entered. State v. Robinson, 2009 MT 170 , ¶¶ 17-18, 350 Mont. 493 , 208 P.2d 851 . ¶15 We will not overturn a district court’s denial of a motion to withdraw a guilty plea “if the defendant was aware of the direct consequences of such a plea, and if his plea was not induced by threats, misrepresentation, or an improper promise such as a bribe.” State v. Warclub, 2005 MT 149 , ¶ 18, 327 Mont. 352 , 114 P.3d 254 (quoting Brady v. United States, 397 U.S. 742 , 90 S. Ct. 1463 (1970)). Determining whether a defendant entered a plea voluntarily and whether a district court erred in denying a motion to withdraw a plea requires case-specific considerations, including “the adequacy of the district court’s interrogation, the benefits obtained from a plea bargain, the withdrawal’s timeliness, and other considerations that may affect the credibility of the claims presented.” State v. Hendrickson, 2014 MT 132 , ¶ 17, 375 Mont. 136 , 325 P.3d 694 . ¶16 Harrison has failed to meet his burden to prove his guilty pleas were not voluntarily entered. The record is clear that Harrison understood the consequences of entering guilty pleas. Harrison signed the plea agreement, in which he acknowledged that he understood that the Court was not bound by the agreement and may impose the maximum penalty for the offenses charged. Harrison acknowledged in open court that he had the opportunity to 6 look over the plea agreement line by line with his attorney, that his attorney had fully advised him of his rights, that he understood his rights, that he had the opportunity to ask his attorney any questions he had regarding the plea agreement, and that he was satisfied with his representation. ¶17 Harrison likewise has failed to establish his counsel was ineffective. The District Court properly denied Harrison’s argument that his plea was not entered into voluntarily due to counsel’s performance. ¶18 Ineffective assistance of counsel can constitute good cause to withdraw a guilty plea. State v. Valdez-Mendoza, 2011 MT 214 , ¶ 14, 361 Mont. 503 , 260 P.3d 151 . This Court applies the two-prong Strickland test to determine whether counsel’s ineffectiveness impacted a defendant’s voluntariness to enter into a plea agreement. State v. Hendrickson, 2014 MT 132 , ¶ 16, 375 Mont. 136 , 325 P.3d 694 . To succeed on an ineffective assistance of counsel claim, a defendant must establish both elements of a two-part test. Whitlow v. State, 2008 MT 140 , ¶ 10, 343 Mont. 90 , 183 P.3d 861 (citing Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L. Ed. 2d 674 (1984)). The Defendant must show: (1) that his counsel’s advice fell outside the range of competence demanded of a criminal attorney; and (2) but for his counsel’s deficient performance, he would not have entered a guilty plea. State v. McFarlane, 2008 MT 18 , ¶ 11, 341 Mont. 166 , 176 P.3d 1057 . ¶19 Having reviewed the record in its entirety, we find no merit to Harrison’s claims of ineffective assistance of counsel. The District Court determined Harrison’s attorney’s 7 testimony was more credible than Harrison’s. Weight and credibility determinations rest with the trier of fact. State v. Faber, 2008 MT 368 , ¶ 28, 346 Mont. 449 , 197 P.3d 941 . This Court will not disturb those determinations on appeal. Faber, ¶ 28. Harrison’s attorney took steps to adequately prepare for trial and allowed the decision to proceed to trial or accept the plea agreement to rest within Harrison’s discretion. Harrison’s attorney was able to significantly reduce Harrison’s criminal liability by way of the plea agreement. Harrison’s attorney ensured Harrison clearly understood the plea agreement and the strengths and weaknesses of the case. Harrison cannot meet his burden to show involuntariness under the Strickland standard since he fails to meet the first prong. We affirm the District Court’s holding that good cause did not exist to withdraw Harrison’s plea agreement because Harrison cannot show he entered into the plea agreement involuntarily. ¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. Affirmed. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON /S/ JIM RICE 8

2020-11-20 19:30:18.84509+00

Herman H. Chester and Martha Chester v. Commissioner. Chester v. Commissioner Docket No. 3274-65. United States Tax Court T.C. Memo 1967-50; 1967 Tax Ct. Memo LEXIS 212; 26 T.C.M. (CCH) 246; T.C.M. (RIA) 67050; March 17, 1967 *212 The petitioner in 1956 and 1957 was engaged in both the legal practice of medicine and the illegal performance of abortions, and maintained several savings accounts under assumed names in which he deposited large amounts of cash. Held, that petitioners have failed to show error in the respondent's determination that the deposits so made constituted taxable income earned in such years. Held, further, that some part of the underpayment in tax for each year was due to fraud and that the petitioners are jointly and severally liable for additions to tax pursuant to section 6653(b) of the Internal Revenue Code of 1954. Joseph Steinberg, 277 Broadway, New York, N. Y., and Donald Steinberg, for petitioners. Charles M. Costenbader, for respondent. ATKINS Memorandum Findings of Fact and Opinion *214 ATKINS, Judge: The respondent determined deficiencies in income tax for the taxable years 1956 and 1957 in the respective amounts of $51,326.11 and $107,358.81, and additions thereto under section 6653(b) of the Internal Revenue Code of 1954 in the respective amounts of $25,663.06 and $58,383.41. The issues are whether the petitioners omitted substantial amounts of income from their income tax returns for the taxable years in question; whether the respondent erred in disallowing a portion of claimed business expenses; and whether any part of any deficiency for either year is due to fraud. Findings of Fact Some of the facts have been stipulated and are incorporated herein by this reference. The petitioners are husband and wife residing in Brooklyn, New York. On April 10, 1957, they filed a joint Federal income tax return for the taxable year 1956 with the district director of internal revenue, Brooklyn, New York, reporting a tax liability of $5,814.31. On October 15, 1958, they filed with such district director a tentative joint return (which purported to show only estimated income and deductions) for the taxable year 1957 in which they reported a tax*215 liability of $6,534. 1 Thereafter, on May 28, 1959, they filed with such director a joint return for the taxable year 1957 showing a tax liability of $9,635. The petitioner Martha Chester is a party herein only by reason of having filed joint returns with her husband, and the latter will hereinafter be referred to as the petitioner. The petitioner was born in 1896. He was licensed to practice medicine in 1922, and during the taxable years 1956 and 1957 he conducted a business as a physician at his residence. During the taxable years 1956 and 1957 the petitioner performed many illegal abortions for which he received fees in varying amounts. In July or August 1956, he hired a woman to assist him while he was performing abortions. On August 8, 1957, the petitioner was arrested by local authorities and subsequently pleaded guilty under two indictments charging him with illegal abortion. He served 8 months in prison beginning in August 1958. His license to practice medicine was revoked in December 1958. During the year 1957 following his arrest*216 on August 8, the petitioner performed no illegal abortions. At the time of his arrest the petitioner had several thousand dollars in cash in his home. On the day of his arrest the petitioner made a statement to the assistant district attorney, Kings County, New York, that he commenced performing abortions about 14 or 15 months prior thereto. During the taxable years 1956 and 1957 the petitioner kept no record of the illegal abortions which he performed or the amounts received therefor. He did keep in those years books in which daily entries were made in connection with his legitimate medical practice, showing names of patients and fees received. The total fees shown in such books for the taxable years 1956 and 1957 were, respectively, $30,067 and $26,042. Such books disclose that in 1956 the petitioner saw patients on about 348 days and that in 1957 he saw patients on about 214 of the 219 days prior to August 8. Recorded fees in the $11 to $19 range, inclusive, numbered about 330 for 1956 and about 215 for 1957 prior to August 8. During the 5-day period commencing Thursday August 1, 1957, the petitioner performed 8 abortions at an average price of $475, or a total of $3,800. Two*217 of such abortions were performed on August 1 for $1,000, two on August 2 for $1,000, one on August 3 for $400, two on August 4 for $1,000 and one on August 5 for $400. The petitioner's books show that in connection with his legitimate practice he also saw about 19 patients on August 1 and about 22 patients on August 5. During 1956 and 1957 the petitioners maintained in their names a joint checking account at the Bankers Trust Company. The balance in such account at January 1, 1956, was $6,018.88. During the year 1956 deposits were made thereto totaling $28,374.57, and charges against such account totaled $31,572.90, leaving a balance therein at January 1, 1957, of $2,820.55. During the year 1957 deposits were made totaling $24,723.28 and charges against such account totaled $23,802.32, leaving a balance therein at December 31, 1957, of $3,741.51. During 1956 and 1957 the petitioners maintained in their names a joint savings account in the East New York Savings Bank. Such account had a credit balance at the beginning of 1956 of $4,284.28. Deposits thereto in 1956 totaled $1,103.48 and withdrawals therefrom amounted to $5,355, leaving a balance at January 1, 1957, of $123.61. During*218 the year interest was credited in the amount of $90.85. During 1957 deposits to the account totaled $806.78. There were no withdrawals and the balance in the account at the end of 1957 was $944.86. During the year interest was credited to the account in the amount of $14.47. During 1956 and 1957 the petitioner Martha Chester maintained in her name a savings account at the Williamsburgh Savings Bank. Such account had a balance at the beginning of 1956 of $729.54. Deposits to the account during 1956 amounted to $970 and withdrawals totaled $1,000, leaving a balance of $709.55 at January 1, 1957. Interest was credited to the account during 1956 in the amount of $10.01. During 1957 there was one deposit to the account of $112.50 and there were no withdrawals, leaving a balance of $848.53 at December 31, 1957. Interest was credited to the account in 1957 in the amount of $26.48. The total deposited to the aforementioned accounts in 1956 and 1957, respectively, amounted to $30,448.05 and $25,642.56. The interest credited to the above accounts during 1956 and 1957 amounted to $100.86 and $40.95, respectively. At various times during 1956 and 1957 the petitioner opened or caused to be*219 opened 12 savings accounts under assumed names, in which he deposited his own funds. At all times the petitioner possessed complete ownership and control over the funds deposited in such accounts. The following tabulation shows the dates such accounts were opened and the amounts deposited therein for each year: AccountDateDeposits Name of Savings BankNumberOpened19561957 Green Point199791-24-56$20,000 Green Point199801-24-5620,000 East New York3537654-11-5620,000 East New York3537664-11-5620,000 Manhattan1009051- 1-57$ 20,000 Manhattan1009061- 1-5720,000 Bowery3050932-15-5720,000 Bowery3050952-15-5718,900 Kings County1755913-11-5720,000 Kings County1755923-11-5720,000 Dime15906046- 7-5717,400 Dime15906056- 7-5718,300 Totals$80,000$154,600 Prior to April 1956 the petitioner made 6 deposits totaling $2,000. Thereafter, the monthly total of deposits was far greater. From April through November 20, 1956, deposits were made in the accounts in the East New York and Green Point savings banks several times each month, the total number of*220 days on which deposits were made being 44. By November 20, 1956, the amount in each of such accounts had reached $20,000 and thereafter no further deposits were made therein. The accounts in the Manhattan, Bowery, Kings County, and Dime savings banks were not opened until various times in 1957. The deposits in these accounts in 1957, except to the extent of $7,000, were made prior to August 8. The last deposit in 1957 was on October 28. From February 1, 1957 through October 28, 1957, deposits were made to the accounts in such banks several times each month, the total number of days on which deposits were made being 50. All deposits to the above 12 savings accounts were made by the petitioner in currency. There were no withdrawals from these accounts during 1956 and 1957. During 1956 and 1957 interest was credited to such accounts in the respective total amounts of $286.23 and $4,823.29. From November 9, 1940, until October 21, 1955, the petitioner maintained in his name a safe deposit box at Bankers Trust Company. From May 12, 1947 to April 25, 1958, he maintained in his name a safe deposit box at the East New York Savings Bank. The petitioner also maintained a safe deposit box*221 in an assumed name in the Diamond Center of America, which he relinquished on August 13, 1957. Throughout the years 1956 and 1957 each of the petitioners maintained a margin account with a stock broker, and they actively traded stocks on margin. At January 1, 1956, the petitioner Herman H. Chester had to his credit in his account 400 shares of Chrysler Corporation, 400 shares of U.S. Steel, and 1,000 shares of Sperry Rand, against which there was a debit due the broker of approximately $35,000. At January 1, 1956, the petitioner Martha Chester had to her credit in her account 160 shares of American Telephone & Telegraph and 200 shares of Chrysler Corporation, against which there was a debit due the broker of approximately $20,000. During 1956 the petitioner had an insurance policy covering personal property belonging to him and his wife. Among the assets listed were furs and jewelry valued by the petitioner at approximately $33,000. During each of the taxable years 1956 and 1957 the petitioner paid a maid $1,500 in cash. One-half of the maid's wages was for cleaning the petitioner's residence and one-half was for cleaning his business premises. The petitioners' joint income*222 tax return for the taxable year 1956 was prepared by Jacob Silvey, a certified public accountant who was married to a cousin of the petitioner. Therein the petitioner's gross income from his profession was reported to be $29,892.05. In arriving at this amount Silvey did not rely upon the petitioner's books. Rather, Silvey's computation was primarily based upon deposits which had been made to the petitioner's checking account at the Bankers Trust Company, his savings account at the East New York Savings Bank, and the savings account of the petitioner Martha Chester at the Williamsburgh Savings Bank. From the total deposits Silvey subtracted amounts totaling $7,606, some of which he determined did not constitute taxable income and some of which he determined to be income from sources other than the petitioner's profession. He then added an amount of $7,500 as cash expenditures made, which included $1,500 for a maid's salary. In the return the net profit from the petitioner's profession was computed to be $22,192.84 by deducting expenses of $7,699.21 which included one-half of the $1,500 paid to the maid. In such return the petitioners reported interest income from the savings accounts*223 in their names in the East New York and Williamsburgh savings banks in the total amount of $77.67. The return showed taxable income in the amount of $21,962.40. The petitioners' amended joint income tax return for the taxable year 1957 was apparently prepared by them. Therein the petitioner's gross income from his profession was reported to be $35,800. A net profit of $28,862.63 was computed from such profession by deducting expenses of $6,937.37. In such return the petitioners reported bank interest in the amount of $46.88. They also reported therein, under the heading of "Other Income", an amount of $3,500. The return showed taxable income of $30,373. In the notice of deficiency the respondent determined that the petitioners' correct taxable income for the taxable year 1956 was $104,949.09. This resulted from increasing income from the petitioner's profession by the amount of $80,000 (the amount of the deposits made to the savings accounts maintained under assumed names), by increasing interest income by $566.69, and by disallowing business expenses to the extent of $2,420. In such notice the respondent determined that the petitioners' correct taxable income for the taxable*224 year 1957 was $179,712.65. This resulted from increasing income from the petitioner's profession by the amount of $140,553.61 (which took into account the amounts deposited in all bank accounts, including the amount of $154,600 deposited in the savings accounts maintained under assumed names, and cash expenditures of $7,500 2), by increasing interest income by $5,523.48, by increasing dividend income by $112.50, by disallowing business expenses to the extent of $2,900, by disallowing contributions of $250, and by correcting a mathematical error of 6 cents. *225 In each of the years 1956 and 1957 the petitioner made cash expenditures of $5,000, which included $1,500 paid for maid services. On February 21, 1962, the petitioner was indicted by a United States grand jury for the Eastern District of New York for willful attempted evasion of the joint taxes due from him and his wife for the taxable years 1956 and 1957, in violation of section 7201 of the Internal Revenue Code of 1954, charging that he understated his net income in the returns for 1956 and 1957 by the respective amounts of $80,566.69 and $138,577.09. On October 31, 1963, the United States District Court found the petitioner guilty on both counts of the indictment. On January 29, 1964, the court sentenced petitioner to serve two concurrent terms in prison of 18 months each, 17 months of which was suspended. On January 29, 1964, the petitioner filed a notice of appeal from such sentence. On February 14, 1964, the court entered a stipulation for dismissal of the appeal. The petitioner Martha Chester was not a party to the criminal proceedings. Some part of the underpayment of tax for each of the taxable years 1956 and 1957 is due to fraud. Opinion *226 The deficiencies in tax result principally from the determination by the respondent that the amounts of $80,000 and $154,600 which, in the taxable years 1956 and 1957, respectively, the petitioner deposited in currency in the saving accounts maintained under assumed names constituted unreported income received by the petitioner from the practice of his profession as a physician. It is well settled that unexplained bank deposits are evidence of receipt of taxable income. Hoefle v. Commissioner, (C.A. 6) 114 F. 2d 713, affirming a Memorandum Opinion of this Court; Doll v. Glenn, (C.A. 6) 231 F.2d 186">231 F. 2d 186; Goe v. Commissioner, (C.A. 3) 198 F.2d 851">198 F. 2d 851, affirming a Memorandum Opinion of this Court; O'Dwyer v. Commissioner, (C.A. 4) 266 F.2d 575">266 F. 2d 575, affirming 28 T.C. 698">28 T.C. 698, certiorari denied 361 U.S. 862">361 U.S. 862; and Fada Gobins, 18 T.C. 1159">18 T.C. 1159, affd. (C.A. 9) 217 F.2d 952">217 F. 2d 952. The respondent's determination of a deficiency in tax carries with it a presumption of correctness, and the burden of proof is upon the taxpayer to show error therein. Welch v. Helvering, 290 U.S. 111">290 U.S. 111, and Burnet v. Houston, 283 U.S. 223">283 U.S. 223.*227 And this is true with respect to his determination that unidentified bank deposits constitute income. Hoefle v. Commissioner, supra; Doll v. Glenn, supra; and O'Dwyer v. Commissioner, supra. On brief the petitioner contends that almost all of the above amounts which were deposited in such accounts in 1956 and 1957 consisted of amounts earned in years prior to 1956. He testified that for the first two or three years of his practice of medicine, which commenced in 1922, he deposited a portion of his earnings in a safe; that thereafter he rented safe deposit boxes and placed therein a portion of his earnings for each subsequent year; that in 1951 the safe deposit boxes contained between $100,000 and $103,000, all of which had been reported as taxable income, except an amount of $8,800 which constituted an inheritance of his wife; that in 1951 he commenced performing illegal abortions; that in 1951 he performed about 60 abortions at an average fee of about $300; that in each of the years 1952 through 1955 he performed between 70 and 80 abortions at an average fee of nearly $400; that in each of the years 1951 through 1955 he reported as taxable*228 income about $7,000 or $8,000 of his illegal abortion income, and that the remainder each year was placed in his safe deposit boxes; that during 1956 he earned from $30,000 to $32,000 from performing abortions, of which about $22,000 to $25,000 was placed in the safe deposit boxes, the remainder of about $7,000 to $8,000 being reflected in his books showing receipts from his legitimate practice; that during 1957 prior to his arrest by the local authorities on August 8 he performed about 40 to 45 abortions at an average fee of about $475, or a total of from $19,000 to $22,375, of which about $14,000 to $17,375 was placed in the safe deposit boxes, the remainder of about $5,000 being reflected in his books showing receipts from his legitimate practice; 3 that altogether over the period 1923 through 1957 he placed about $235,000 in his safe deposits boxes; that he removed about one-third of such amount in 1956, and the remainder in 1957, and placed it in the savings accounts maintained under assumed names; and that he made visits to the safe deposit boxes for this purpose several times per month. *229 The petitioner did not keep records of the abortions he performed or the income received therefrom. The evidence with respect to the amounts he received from abortions in the years in question, and with respect to the source of the deposits to the savings accounts kept in assumed names, consists almost entirely of the petitioner's unsupported testimony. We cannot accept his uncorroborated, self-serving testimony as being sufficient to overcome the presumption in favor of the respondent's determination, particularly in view of the improbability of some of his assertions, the inconsistency between his testimony and his statements made at the time of his arrest for abortion, and the fact that the record establishes that he is not worthy of belief. He admitted that he omitted as much as $22,000 to $25,000 of abortion income from his 1956 return and that he lied when he signed such return. He also stated that he filed false returns for the years 1951 through 1955. While he testified before this Court that he commenced performing abortions in 1951 and continued to do so each year thereafter until his arrest in 1957, and that deposits made in 1956 and 1957 to the savings accounts maintained*230 in assumed names were made up largely of such abortion income, he stated unequivocally in a statement made to the assistant district attorney, Kings County, New York, at the time of his arrest that he commenced performing abortions about 14 or 15 months prior to his arrest. In such statement he stated: "I've told you the truth. I've told you everything. I've bared my soul, I've told you everything so help me God." Before us he stated that he lied in his statement to the assistant district attorney. Upon this record we are unable to make a finding as to when the petitioner commenced performing abortions. Hence we cannot accept his statement that in years prior to 1956 he received and deposited in the safe deposit boxes the amounts of abortion income claimed. If he did have such income in prior years we are not in a position to determine the amount thereof. Nor can we find, as claimed by the petitioner, that in 1951 his safe deposit boxes contained between $100,000 and $103,000 which, except for an $8,800 inheritance of his wife, consisted of earnings accumulated from his legitimate practice which had been reported as income. It seems improbable that the petitioner would hoard such*231 an amount in this manner instead of investing it and receiving a return thereon. He did testify in effect that during the 1920's he placed cash in a safe because of his distrust of banks due to the experience of some of his relatives who lost money because of bank failure, but he did not testify that this was his reason for continuing to deposit his legitimate income in safe deposit boxes throughout the years prior to 1951 and allowing the claimed accumulation to remain in the boxes thereafter. Moreover, even if he did have some cash in his safe deposit boxes we cannot find that such was the source of the deposits to the savings accounts in 1956 and 1957. The evidence shows that deposits were made in the savings accounts several times each month and the deposits were made on 50 days in 1956 and on 50 days in 1957 up to October 28. The petitioner did not furnish proof as to the dates on which he entered his safe deposit boxes. He stated that the banks could not give him a record of such entries, but he did not state why. We think it improbable that the petitioner withdrew funds from his safe deposit boxes in this piecemeal fashion for deposit in the savings accounts, and he offered*232 no explanation of why he would do so. Indeed, some of the evidence tends to support the respondent's contention that the deposits in the savings accounts consisted entirely of currently earned abortion income. It was not until April 1956 that any substantial deposits were made in such accounts, and that was approximately the time the petitioner told the assistant district attorney that he commenced performing abortions. Furthermore, there were only 3 deposits, totaling $7,000, made to the accounts in 1957 after August 8, the date on which the petitioner was arrested and ceased performing abortions. In this connection we note that the petitioner testified that he had in his home at the time of his arrest several thousand dollars in cash which he used or deposited. The petitioner further contends that it was not possible for him to have performed the number of abortions in the 7-month period of 1957 prior to his arrest which would have been necessary to result in the receipt of approximately $154,000 at $475 per operation. In this connection he testified that due to the fact that he suffered from physical ailments and that he under-went emotional stress and severe strain in performing*233 abortions, he performed such operations during only one out of every 3 or 4 weeks. We do not doubt that the petitioner did suffer physical ailments, but we think that he has failed to show that he was physically unable to have performed enough operations to yield the income in question. And it should be observed that the petitioner presented no evidence as to the time required by him to perform an abortion. However, the evidence shows, and the petitioner admits, that in the five-day period beginning August 1, 1957, he performed 8 abortions. Two of such abortions were performed on August 1 and one was performed on August 5. The petitioner's books indicate that on those dates he saw about 19 and 22 patients, respectively, in his legitimate practice. On the record before us we cannot conclude that it was impossible for the petitioner to have earned the amounts in question from performing abortions in 1956 and 1957. We hold that the petitioner has failed to show error in the respondent's determination that the amounts of $80,000 and $154,600 deposited in 1956 and 1957, respectively, in the savings accounts maintained in assumed names constituted income received by the petitioner from*234 the practice of his profession. In computing the amount of petitioner's unreported professional income, the respondent included for each of the taxable years in question an amount of $7,500 as representing cash expenditures. The petitioner apparently does not question the correctness of the respondent's determination that cash expenditures should be so included, but questions the amount thereof. He testified that he paid the maid $1,500 in cash in each of such years, and that he spent in cash about $40 per week (about $2,000 per year) for food. He also testified that he spent cash for laundry and travel by plane and train. He further stated that he spent small amounts of cash for tobacco and restaurant meals. He testified that the rest of his expenses were paid by check. The figure of $7,500 is the figure which the petitioner's accountant estimated as cash expenditures in computing the petitioner's professional income for the taxable year 1956. The petitioner, while admitting that he signed the return for that year, testified that he did not discuss the item of living expenses with his accountant and that he did not know that the accountant was including an amount of $6,000 as his*235 living expenses. On brief it is contended that the amount which should be included as cash expenditures should be $3,500, consisting of the maid's salary of $1,500, plus $2,000 for food. From the petitioner's testimony it appears that his cash expenditures were in excess of $3,500. On the other hand, the respondent's determination of $7,500 appears to have resulted from the acceptance of the accountant's figure used for 1956. Under the circumstances, we think the proper amount lies between the two figures. Such amount is not susceptible of a precise determination, but we feel it incumbent upon us to exercise our best judgment and make the best estimate possible upon the evidence before us. This we have done, and have found that in each of the taxable years in question the petitioner made cash expenditures of $5,000, which includes in each year $1,500 paid to the maid. For each year the amount of $5,000 will be included in the computation of the petitioner's income from his profession. In the petition an issue is raised as to the respondent's disallowance of a portion of the business expense deductions claimed for each year. However, no evidence was presented and no mention was made*236 by the petitioners on brief with respect thereto, except as to one-half of the maid's salary of $1,500 for each year. In his return for 1956 the petitioner included among deductions $750 of the maid's salary, and there is no showing that a similar amount was not included among the deductions claimed in his return for 1957. The respondent allowed the bulk of the deductions claimed by the petitioner for each year, and there has been no showing that the portion disallowed for either year included the amount claimed on account of the maid's salary. Under the circumstances, we approve the respondent's disallowance of the amounts of $2,420 and $2,900 of the deductions claimed for the taxable years 1956 and 1957, respectively. In their return for the taxable year 1956 the petitioners reported interest income of $77.67. This was from the savings accounts which they maintained in their own names. The evidence shows, and we have found, that in 1956 interest was credited to such accounts in the total amount of $100.86. In addition, in 1956 interest was credited to the savings accounts maintained in assumed names in the total amount of $286.23. Accordingly, the petitioners failed to report in*237 their return for 1956 interest income of $309.42. In their return for the taxable year 1957 the petitioners reported bank interest of $46.88. This was from the savings accounts which they maintained in their own names. The evidence shows, and we have found, that in 1957 interest was credited to such accounts in the total amount of $40.95. In 1957 interest was credited to the savings accounts maintained in assumed names in the total amount of $4,823.29. Accordingly, the amount of interest on which the petitioners are taxable for 1957 is $4,817.36 in excess of the amount which they reported as interest income in their return. In their return for 1957 the petitioners reported an amount of $3,500 under the heading "Other Income." The petitioner testified that he believed this represented interest from savings accounts maintained in assumed names. The respondent, in making his computation of the petitioners' taxable income, gave the petitioners credit for the full amount of income reported, including the $3,500. Consequently, whether such item of $3,500 constituted interest income or income from some other source does not establish error in the respondent's determination of the amount*238 of taxable income. There remains the question of whether the petitioners are liable for additions to tax under section 6653(b) of the Code. 4 This depends upon whether any part of the underpayments in tax for the taxable years 1956 and 1957 is due to fraud. The burden of proof with respect to fraud is upon the respondent. Section 7454(a) of the Code. *239 Fraud is never presumed but must be shown by clear and convincing proof. Frank Imburgia, 22 T.C. 1002">22 T.C. 1002; United States v. Lease, (C.A. 2) 346 F. 2d 696; and Drieborg v. Commissioner, (C.A. 6) 225 F. 2d 216. The evidence shows that the petitioner was convicted by the United States District Court for the Eastern District of New York of willfully attempting to evade his income taxes for the taxable years 1956 and 1957, in violation of section 7201 of the Internal Revenue Code of 1954. Accordingly, he is collaterally estopped from denying that a part of the underpayments for those years was due to fraud with intent to evade tax, within the meaning of section 6653(b) of the Code. John W. Amos, 43 T.C. 50">43 T.C. 50, affd. (C.A. 4) 360 F. 2d 358; Arctic Ice Cream Co., 43 T.C. 68">43 T.C. 68; Tomlinson v. Lefkowitz, (C.A. 5) 334 F.2d 262">334 F. 2d 262, certiorari denied 379 U.S. 962">379 U.S. 962; and Moore v. United States, (C.A. 4) 360 F.2d 353">360 F. 2d 353, certiorari denied 385 U.S. 1001">385 U.S. 1001. The petitioners contend that the doctrine of collateral estoppel does not apply in view of the holdings*240 in Moore v. United States, supra, that the criminal conviction of a husband did not collaterally estop his wife in a civil proceeding from litigating the question of her husband's fraud in the preparation of their joint tax return, for the purpose of determining whether she is jointly and severally liable, under section 6013(d)(3) of the Code, for additions to the tax on account of her husband's fraud. It is their position that collateral estoppel cannot practicably be invoked against either of them, since applying the rule of estoppel against Herman Chester alone would create a liability against Martha Chester in an instance in which she was not accorded her day in court. Suffice it to say that in Moore v. United States, supra, the court did apply the doctrine of collateral estoppel in determining the husband's liability for the additions to tax for fraud, despite its holding that the husband's criminal conviction did not preclude the wife from contesting the question of her husband's fraud in the civil proceedings. Clearly the doctrine of collateral estoppel applies to the petitioner Herman Chester. The respondent did not plead, and does not contend, that*241 the petitioner Martha Chester is collaterally estopped to deny fraud on the part of her husband, and therefore it is not necessary for us to consider whether, had the issue been raised, the doctrine of estoppel would apply as to her. However, it is our conclusion that fraud has been shown on the part of petitioner Herman Chester for each year by clear and convincing evidence, without regard to his prior conviction. The evidence establishes that in both 1956 and 1957 the petitioner, in addition to his legitimate practice of medicine, engaged in the performance of illegal abortions. He kept no record of the number of abortions performed or the income derived therefrom. In both years he maintained savings accounts under assumed names, and deposited therein large amounts of cash. As pointed out hereinabove, we are not satisfied with his explanation that, in the main, the deposits to these accounts represented savings accumulated in prior years. At the hearing the petitioner, in effect, admitted that a portion of the underpayment of tax for the taxable year 1956 was due to fraud. 5 He testified, however, that when he filed his tax return for the taxable year 1957, he tried to be as careful*242 as he could to report all of his income, including the income from the performance of abortions, since he had already been arrested for abortion and knew that "things would be scrutinized more than before." He conceded that "I must have made some mistake there, because subsequently I realized that I had had a few more abortions than I thought at the beginning." The petitioner testified that in 1957 he received as much as $19,000 to $22,375 from the performance of abortions. He conceded that he reported in his return no more than $14,800 thereof. This would amount to the omission of from 22 to 30 percent of the illegal income which he concedes that he had. We fail to see how such omission could have been a "mistake." The return for 1957 was not filed until 1959. It would seem that in 1959 he would have been in a better position than at the time of the hearing to know the number of abortions performed in 1957 and the prices charged therefor. In addition, we think the evidence affirmatively establishes that much more of such abortion income was omitted from his return than he concedes. As pointed out hereinabove his testimony that he "built up" the income shown on his books from his legitimate*243 practice to reflect about $5,000 of his abortion income (and that to that extent the abortion income was included in his return) is not borne out by an analysis of such books. On the contrary, no more than about $2,150 could possibly have been reflected in such manner. In addition, even if it is true, as stated by the petitioner, that the item of $3,500 included in his 1957 return as "Other Income" represented interest credited to his savings accounts maintained in assumed names, there would still remain unreported an amount of approximately $1,300 of such interest income, which we believe that the petitioner must have known had been earned. *244 Accordingly, wholly aside from the doctrine of collateral estoppel, and without relying to any extent upon the presumption in favor of the respondent's determination of the deficiency in tax, it is our conclusion that the evidence clearly and convincingly establishes that a substantial part of the underpayment in tax for 1957 is due to fraud. Accordingly, the petitioner Martha Chester is jointly and severally liable for the deficiencies, and additions thereto, even though she was not a party to the fraud. W. L. Kann, 18 T.C. 1032">18 T.C. 1032, affd. (C.A. 3) 210 F.2d 247">210 F. 2d 247; Ginsberg Estate v. Commissioner, (C.A. 5) 271 F. 2d 511; and Myrna S. Howell, 10 T.C. 859">10 T.C. 859, affd. (C.A. 6) 175 F.2d 240">175 F. 2d 240. On brief the petitioners also contend that since the notice of deficiency was issued more than three years after the filing of the 1957 income tax return, the statute of limitations is an effective bar to the assessment and collection of the deficiency for the taxable year 1957. The issue of the statute of limitations was not raised in the pleadings and hence is not properly before us. United Business Corporation of America, 19 B.T.A. 809">19 B.T.A. 809,*245 and Robert G. Robinson, 12 T.C. 246">12 T.C. 246. But, even if it were in issue, the decision would have to be against the petitioners, since we think the evidence clearly shows that the return for 1957 was false or fraudulent with the intent to evade tax within the meaning of section 6501(c) of the Code, which provides that in such case the tax may be assessed at any time. Decision will be entered under Rule 50. Footnotes

2021-01-27 00:08:02.875002+00

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01/26/2021 DA 19-0606 Case Number: DA 19-0606 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 19N IN THE MATTER OF Z.L., A Youth. APPEAL FROM: District Court of the Fourteenth Judicial District, In and For the County of Meagher, Cause No. DJ-17-01 Honorable Randal I. Spaulding, Presiding Judge COUNSEL OF RECORD: For Appellant: Jim Lippert, Jim Lippert Attorney at Law, P.C., Big Timber, Montana For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Burt N. Hurwitz, Meagher County Attorney, White Sulphur Springs, Montana Submitted on Briefs: January 6, 2021 Decided: January 26, 2021 Filed: Vir-641.-if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Z.L. appeals from an August 20, 2019 Dispositional Judgment in the Montana Fourteenth Judicial District Youth Court, Meagher County, committing Z.L. to the custody of the Montana Department of Corrections (DOC) until the age of 21 and ordering Z.L. to register as a sexual offender pursuant to § 41-5-1513, MCA. We affirm. ¶3 On May 25, 2017, the State filed a Youth Court Petition alleging that Z.L. was a delinquent youth and had committed incest and sexual abuse of children between June 1, 2016, and January 28, 2017. Pursuant to a 2017 pretrial diversion agreement and consent decree, Z.L. pled true to the charges and formal proceedings in Youth Court were suspended. A psychosexual evaluation was conducted in September 2017, placing Z.L. in the moderate risk category for reoffending. In 2019, the State moved to reinstate the Youth Court Petition because it was no longer possible for Z.L. to complete sexual offender treatment—a condition of the diversion agreement—before the expiration of the consent decree on Z.L.’s 18th birthday. Z.L. stipulated to the reinstatement, as his reportedly “manipulative and other delinquent behaviors” at treatment had made him ineligible to graduate from the program. 2 ¶4 At an August 2019 dispositional hearing, the State asked that Z.L. be designated a level-two sexual offender, based on the 2017 psychosexual evaluation, and be ordered to register as a sexual offender. Z.L.’s counsel argued for designating Z.L. as a level-one sexual offender, claiming that the 2017 psychosexual evaluation might no longer be accurate. Counsel also argued that Z.L. should not be required to register as a sexual offender. He stated that Z.L. would request an updated evaluation before his transfer hearing to be held prior to Z.L.’s 18th birthday. ¶5 The Youth Court committed Z.L. to DOC custody until age 21 and designated Z.L. a level-two sexual offender with a moderate risk to reoffend. The Youth Court also applied the prior version of the sexual offender registration statute, despite the parties’ positions to the contrary, as Z.L. had committed the offending acts before the effective date of the new statute. The Youth Court ruled that Z.L. failed to carry his burden of showing that registration as a sexual offender was not appropriate, as required under the prior version of the statute. This appeal followed. ¶6 On appeal, Z.L. argues that the Youth Court erred by applying the version of the statute that was in place at the time of the offense, which required Z.L. to demonstrate that registration was not appropriate. Z.L. also argues that he was entitled to a more recently-conducted psychosexual evaluation prior to disposition. ¶7 We review a district court’s conclusions of law for correctness. In re W.G., 1999 MT 2 , ¶ 5, 293 Mont. 16 , 973 P.2d 217 . We review sentences of less than one year of incarceration for legality and for an abuse of discretion. State v. Herd, 2004 MT 85 , ¶ 22, 320 Mont. 490 , 87 P.3d 1017 . 3 ¶8 A person convicted of sexual abuse of children is required to register as a sexual offender. Sections 46-23-502(9), -504(1), MCA. Under the 2015 version of the Youth Court Act, a court may: exempt the youth from the duty to register if the court finds that: (i) the youth has not previously been found to have committed or been adjudicated for a sexual offense, as defined in 46-23-502; and (ii) registration is not necessary for protection of the public and that relief from registration is in the public’s best interest. Section 41-5-1513(1)(d), MCA (2015). In 2017, the provision was modified to read: the youth is exempt from the duty to register as a sexual offender pursuant to Title 46, chapter 23, part 5, unless the court finds that: (i) the youth has previously been found to have committed or been adjudicated for a sexual offense, as defined in 46-23-502; or (ii) registration is necessary for protection of the public and that registration is in the public’s best interest. Section 41-5-1513(1)(d), MCA (2017). ¶9 In essence, the 2017 amendment reversed the presumption from one in favor of registration to one against registration, moving the burden from the juvenile to the State. The amendment contained an applicability date providing that the act “applies to offenses committed on or after [the effective date of this act].” 2017 Mont. Laws ch. 208, § 2 (brackets in original). The amendment became effective on October 1, 2017. Z.L. committed his offenses between June 1, 2016, and January 28, 2017, before the date of applicability chosen by the Legislature. Under the Legislature’s plain language, Z.L. was not eligible to claim the benefit of the 2017 edition of the law, which applied only to conduct occurring after October 1, 2017. 4 ¶10 Defendants may receive the benefit of a repeal or amendment of a sentencing statute before sentencing where the Legislature provided no guidance regarding the applicability of the change to current cases. See State v. Wilson, 279 Mont. 34 , 40, 926 P.2d 712 , 716 (1996) (citing In re Estrada, 408 P.2d 948 , 953 (Cal. 1965)); see also State v. Thomas, 2019 MT 155 , ¶ 12, 396 Mont. 284 , 445 P.3d 777 . However, where the statutory plain language unambiguously demonstrates the Legislature’s intent to apply these amendments only to offenses occurring after a specified date, the Court’s inquiry is completed. See Thomas, ¶ 10 (holding that defendant could not claim benefit of amendment to sentencing statute stating that it “applies to offenses committed after June 30, 2017” for crimes committed before that date). ¶11 The amendment at issue here clearly states that the amendment applies to offenses committed after October 1, 2017. Thomas applies. ¶12 Z.L. also argues that the psychosexual evaluation conducted two years before the disposition hearing was insufficient under § 41-5-1513(2)(a), MCA, which provides that the court shall, “prior to disposition, order a psychosexual evaluation.” However, arguments not raised at the trial court level are deemed waived on appeal. State v. Martinez, 2003 MT 65 , ¶ 17, 314 Mont. 434 , 67 P.3d 307 . Z.L. concedes that he did not specifically argue below that the requirements of § 41-5-1513(2)(a), MCA, had not been met. Z.L. instead points to counsel’s argument before the Youth Court that it should not rely on the two-year-old evaluation for purposes of determining the proper tier designation for Z.L. However, arguing that an evaluation’s age should render it less persuasive as a matter of evidentiary weight is not the same as arguing that it fails to meet statutory 5 requirements. Z.L. does not argue that the sentence was illegal rather than merely objectionable and is therefore not entitled to the Lenihan exception for challenging sentences not objected to below. See State v. Kotwicki, 2007 MT 17 , ¶ 13, 335 Mont. 344 , 151 P.3d 832 (citing State v. Lenihan, 184 Mont. 338 , 602 P.2d 997 (1979)). Because this issue was not preserved, we do not address it here. ¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶14 Affirmed. /S/ MIKE McGRATH We Concur: /S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE 6

2020-03-06 08:00:35.132744+00

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-05/C:18-3735:J:Wood:aut:T:fnOp:N:2483531:S:0

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18-3735 MARION HEALTHCARE, LLC, et al., Plaintiffs-Appellants, v. BECTON DICKINSON & COMPANY, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:18-cv-01059-NJR-RJD — Nancy J. Rosenstengel, Chief Judge. ____________________ ARGUED SEPTEMBER 27, 2019 — DECIDED MARCH 5, 2020 ____________________ Before WOOD, Chief Judge, and KANNE and BARRETT, Circuit Judges. WOOD, Chief Judge. Since the Supreme Court’s decision in Illinois Brick v. Illinois, 431 U.S. 720 (1977), only those buyers who purchased products directly from the antitrust violator have a claim against that party for treble damages. “Indirect purchasers” who paid too much for a product because cartel or monopoly overcharges were passed on to them by middle- men must take their lumps and hope that the market will 2 No. 18-3735 eventually sort everything out. See, e.g., Sharif Pharm., Inc. v. Prime Therapeutics, LLC, Nos. 18-2725 and 18-3003, 2020 WL 881267 at *2 (7th Cir. Feb. 24, 2020). Matters are different, how- ever, when a monopolist enters into a conspiracy with its dis- tributors. In such cases, “the first buyer from a conspirator is the right party to sue.” Paper Sys. Inc. v. Nippon Paper Indus. Co., 281 F.3d 629 , 631 (7th Cir. 2002). The plaintiffs in this case (“the Providers”) are healthcare companies that purchased medical devices manufactured by Becton Dickinson & Company. Healthcare providers often do not purchase medical devices directly from the manufacturer; instead, they join a group purchasing organization, known in the trade as a GPO. The GPO negotiates prices with the man- ufacturer on behalf of its members. It then presents the terms to the provider, which has the opportunity to accept them or reject them. If the provider agrees to the terms, it chooses a distributor to deliver the product. The distributor then enters into contracts with the healthcare provider and the manufac- turer. These contracts obligate the distributor to procure the products from the manufacturer and to sell them to the pro- vider. The distribution contracts with the providers incorpo- rate the price and other terms of the agreements that the GPO negotiated, plus a markup for the chosen distributor. Our Providers purchased medical devices in the manner just described. A GPO negotiated with Becton on the Provid- ers’ behalf, and a distributor delivered the devices. Had Bec- ton acted alone, selling its products to an independent distrib- utor, which then sold them to a healthcare provider, no one doubts that the Illinois Brick rule would bar the provider from suing Becton for any alleged monopoly overcharges. But these transactions were more complex. The Providers allege No. 18-3735 3 that Becton, the GPOs, and the distributors (to whom we refer collectively as Becton unless the context requires otherwise) joined forces in a conspiracy and engaged in a variety of anti- competitive measures, including exclusive-dealing and pen- alty provisions. Becton moved to dismiss, arguing that the Il- linois Brick rule barred the case despite the Providers’ allega- tions of conspiracy. The district court agreed with Becton that the Illinois Brick rule applied on these facts and that dismissal was therefore required. It found the conspiracy rule inapplicable not be- cause of any failure to plead conspiracy adequately, but be- cause this case did not involve simple vertical price-fixing. This, we conclude, was in error. At the same time, we con- clude that as of now the Providers have failed adequately to allege the necessary conspiracy with the distributors, and per- haps with the GPOs. Because the district court’s ruling de- pended so heavily on an error of law relating to Illinois Brick, we have decided to vacate the court’s decision and remand for further proceedings. I We present the facts in the light most favorable to the Pro- viders without vouching for anything. Each of the Providers has purchased conventional syringes, safety syringes, and safety IV catheters from Becton. They allege that Becton charges supracompetitive prices for these products. It is able to do so, they assert, because it has monopoly power in the relevant nationwide market and is unlawfully maintaining that power through anticompetitive contract arrangements among itself, the GPOs, and the distributors. 4 No. 18-3735 In order to accomplish its goals, Becton took several steps. The first addressed its relationship to the GPOs. Although the GPOs are supposed to negotiate at arms’ length, with their members’ best interests in mind, Becton ensured that their loyalty would run to Becton, by bribing them with millions of dollars annually in so-called administrative fees to include anticompetitive terms in the contract. These terms include penalty pricing for healthcare providers who fail to purchase a certain amount of their devices from Becton. Second, the Providers allege that the distributor agreements prop up the unfair terms of the contracts that the GPOs negotiate. Third, they allege that the agreements between Becton and the dis- tributors include hidden commitments to make payments to the GPOs based on the volume of Becton products sold under the contracts. Becton pays distributors for selling more of its products, and in return, the distributors agree to promote Bec- ton products above the products of competitors. The Provid- ers allege that this network of contracts allows Becton to charge prices well above those of its competitors. Following industry practice, the Providers did not buy di- rectly from Becton. They relied upon the GPO system de- scribed above, unaware of the distortions Becton had intro- duced. The distributors purchased the medical devices from Becton at the rates negotiated by the GPOs, and the Providers then purchased the devices from the distributors. Because they did not purchase directly from Becton, the Providers may pursue Becton itself only if they have properly alleged a conspiracy. II Section 4 of the Clayton Act states that “any person who shall be injured in his business or property by reason of No. 18-3735 5 anything forbidden in the antitrust laws may sue therefor,” and is entitled to treble damages for the violation. 15 U.S.C. § 15. In this instance, however, the words “any person” can- not be taken literally. Instead, the Supreme Court has read them in the context of the statute as a whole and has inferred that certain limitations exist. One such limitation was an- nounced in Illinois Brick, where the Court held that, in general, a downstream plaintiff cannot sue an alleged monopolist or cartel member on a theory that a middleman passed an anti- competitive overcharge on to her. Under Illinois Brick, only a purchaser who purchased goods directly from the monopolist (or cartel member) can claim damages. That purchaser is en- titled to the full value of the damages stemming from the overcharge, even if it passed on some or all of the overcharge to downstream purchasers and consequently mitigated the damage it suffered. See Hanover Shoe, Inc. v. United Shoe Ma- chinery Corp., 392 U.S. 481 (1968). A plaintiff who asserts that it indirectly bore the brunt of an overcharge passed on by the direct purchaser has no claim. The Supreme Court based its decision in Illinois Brick on several rationales. First, the Court concluded that “whatever rule is to be adopted regarding pass-on in antitrust damages actions, it must apply equally to plaintiffs and defendants.” 431 U.S. at 728 . It did so in part because it feared that an asym- metrical rule that prohibited a pass-on defense but permitted offensive use of passing-on “would create a serious risk of multiple liability for defendants.” Id. at 730. Moreover, the Court suspected that the difficulties in analyzing price and output decisions would be prohibitive. Id. at 731–32. The di- rect purchaser is not necessarily free to pass on the full amount of a monopoly overcharge; its range of action will be constrained by the elasticity of demand in the downstream 6 No. 18-3735 market. Furthermore, the Court believed that enforcement of the antitrust laws would be better served “by concentrating the full recovery for the overcharge in the direct purchasers … .” Id. at 735. Although Illinois Brick rejected “attempts to carve out ex- ceptions … for particular types of markets,” id. at 744, it did carry forward the limited carve-out that Hanover Shoe had rec- ognized for “a pre-existing cost-plus contract.” Id. at 736. Even that exception, however, has been interpreted narrowly, as the Court demonstrated when it found that a public utility’s prices, by law passed on to final consumers, did not qualify. See Kansas v. UtiliCorp United, Inc., 497 U.S. 199 (1990). The present case, however, does not depend on that exception or any other deviation from the general rule, as we will see. Even the strictest application of the Illinois Brick rule re- quires the court to identify which entity is the seller and which the direct purchaser. The case of Reiter v. Sonotone Corp., 442 U.S. 330 (1979), illustrates this point. In that case, Sonotone was vertically integrated, and so it sold its hearing aids directly to final consumers. One such consumer brought a class action against five companies, alleging illegal price-fix- ing and other antitrust violations. The defendants argued that the Clayton Act’s requirement of injury in one’s “business or property” did not encompass consumer harm, but the Court rejected that narrow reading, finding instead that the term “property” “comprehends anything of material value owned or possessed,” id. at 338, and thus easily covered the con- sumer’s loss of money. But the critical point here is that the consumer was the first direct purchaser from the cartel mem- ber, and so her suit was not barred by the recently announced Illinois Brick rule. No. 18-3735 7 Vertical integration can occur either by internalizing func- tions within one firm, as one sees in Reiter, or by contract. But contractual vertical integration presupposes independent firms. In that instance, as we explained in Toys “R” Us v. Fed. Trade Comm’n, 221 F.3d 928 (7th Cir. 2000), the manufacturer has an incentive to get the best deal it can from its distributors, both in terms of price and in terms of necessary services. Id. at 937. That will cause the manufacturer to sell its goods to whichever distributor will accomplish the distribution func- tion as efficiently as possible. The manufacturer’s interests thus align with those of the consumer who buys from the dis- tributor, not with those of the distributor. This dynamic breaks down if there is a conspiracy be- tween the manufacturer and the distributor and the point of that conspiracy is to support supracompetitive prices for the ultimate consumer. Rather than keeping both its prices (inclu- sive of distribution costs) as attractive as possible (i.e. as low as possible) for consumers, as one would expect in a compet- itive market, the manufacturer/distributor conspiracy has a way to extract supracompetitive profits from consumers. Or at least it can do so if it has enough market power. But market power is a separate element of a plaintiff’s claim. The only point here is that Illinois Brick is not a barrier to suit on behalf of a purchaser who dealt with a member of the conspiracy. This is what we mean when we speak of a conspiracy “ex- ception” to the Illinois Brick rule. It is not so much a real ex- ception as it is a way of determining which firm, or group of firms collectively, should be considered to be the relevant seller (and from that, identifying which one is the direct pur- chaser) for purposes of the rule. We recognized this point in Paper Systems, 281 F.3d at 629 . In that case, paper distributors 8 No. 18-3735 sued paper manufacturers that had allegedly conspired to fix prices. The distributors had purchased some of the products through trading houses that allegedly had participated in the conspiracy. We found that the distributors had a claim under the antitrust laws, because they were “the first purchasers from outside the conspiracy.” Id. at 631. They faced no Illinois Brick bar, because they dealt directly with the conspiracy and were thus entitled to the full amount of its overcharge. Id. at 633. See also Fontana Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478 , 481 (7th Cir. 1980) (“We are not satisfied that the Il- linois Brick rule directly applies in circumstances where the manufacturer and the intermediary are both alleged to be co- conspirators in a common illegal enterprise resulting in in- tended injury to the buyer.”); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599 , 604–05 (7th Cir. 1997). The fact that antitrust liability is joint and several rein- forces the appropriateness of looking to the first sale outside the conspiracy. See Paper Systems, 281 F.3d at 632 (“Nothing in Illinois Brick displaces the rule of joint and several liability, under which each member of a conspiracy is liable for all damages caused by the conspiracy’s entire output.”). That is why we said in Paper Systems that it is better to think of the right to sue co-conspirators not as an exception to Illinois Brick, but instead as a rule inhering in Illinois Brick that allo- cates the right to collect 100% of the damages to the first non- conspirator in the supply chain. Id. at 631–32. A contrary rule that looked behind the conspiracy to the role each member played would render upstream antitrust violators effectively immune from suit through the simple expedient of conspiring with a middleman or distributor to pass on the inflated prices. Other circuits to consider the issue have come to the same conclusion. See Insulate SB, Inc. v. Advanced Finishing Sys., Inc., No. 18-3735 9 797 F.3d 538 (8th Cir. 2015); Lowell v. Am. Cyanamid Co., 177 F.3d 1228 (11th Cir. 1999); Arizona v. Shamrock Foods Co., 729 F.2d 1208 (9th Cir. 1984). The district court here recognized that Illinois Brick does not bar suits brought by direct purchasers from a conspiracy, but it thought nonetheless that the Providers’ suit could not go forward. It found that the existence of a conspiracy mat- tered only for cases of price fixing, as opposed to other forms of anticompetitive activity; as we noted, it thus saw no need to delve into the adequacy of the conspiracy allegations. In its view, cases outside of the arena of price fixing implicated the same considerations that led the Supreme Court to adopt the Illinois Brick rule in the first place. In particular, it thought that it would be too difficult to calculate which portion of the over- charge the distributor had absorbed or to ascertain how much of the distributor’s profits came from fair pricing rather than anticompetitive overcharges. We see nothing in either the Illinois Brick line of cases or the conspiracy line that supports this distinction. The central point of Illinois Brick is to allocate the right to recover to one and only one entity in the market. It is just as easy to do that in the present case, where that entity is the Provider group and the mechanisms that the conspiracy uses to push up prices include exclusive dealing arrangements and bribes or kickbacks, as it is if the entity is the same Provider group but the anticompetitive activity is a more direct agreement to raise prices. Whatever difficulties there may be in calculating dam- ages in a case such as this one, they are not enhanced by the complex downstream tracing that the Court rejected in both Illinois Brick and UtiliCorp. Indeed, UtiliCorp reinforced the need for one simple rule, when the Court stated that it would 10 No. 18-3735 be “an unwarranted and counterproductive exercise to liti- gate a series of exceptions” to the Illinois Brick rule in cases where “economic assumptions underlying” the rule “might be disproved.” 497 U.S. at 217 . The relevant inquiry in determining the applicability of Il- linois Brick focuses on the relationship between the seller and the purchaser, not the difficulty of assessing the overcharge. The Supreme Court confirmed this in Apple Inc. v. Pepper, 139 S. Ct. 1514 (2019). There, consumers who had purchased “apps” from Apple’s “App Store” sued, arguing that Apple had monopolized the retail market for the sale of iPhone apps and had used its power to overcharge consumers. Apple ar- gued that the critical question was “who sets the price,” id. at 1522, not who was the direct seller. It reasoned that because it did not set the retail price, it could not be sued under Illinois Brick, even though the consumers had purchased the apps di- rectly from it. The Court rejected this argument, holding that Illinois Brick “established a bright-line rule where direct pur- chasers … may sue antitrust violators from whom they pur- chased a good or service.” Id. While the details of Apple are different from the facts before us, the same rule applies. Apple confirms that Illinois Brick is a bright-line rule allocating the right to sue to direct purchasers alone, not a rule that requires analysis of competing policy justifications in each case. The relationship between the buyer and the seller, rather than the nature of the alleged anticompetitive conduct, governs whether the buyer may sue under the antitrust laws. Becton has other arguments, however. It contends that when a manufacturer and a distributor have agreed to resell a product at a specific, anticompetitive price, there is no Illi- nois Brick “pass on,” because the indirect purchaser is the first No. 18-3735 11 party to have paid the overcharge. This eliminates the Illinois Brick concerns about tracing passed-on overcharges. But that says nothing about allocating the right to sue. If anything, it reinforces the conclusion that the Providers hold that right on these facts. Becton also claims that treating the conspiracy as the rele- vant entity in cases involving anticompetitive conduct other than price fixing would swallow the Illinois Brick rule entirely. It argues that allowing the conspiracy exception in cases such as this one would permit plaintiffs to circumvent Illinois Brick by asserting in every case that the defendant and the middle- man had formed a conspiracy together. But plaintiffs would do so at their peril: Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927 (counsel’s liability for costs incurred from vexa- tious and unreasonable conduct), and the court’s inherent au- thority all protect against such abuses. Furthermore, a com- plaint that does not lay out a plausible case for relief will be dismissed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff is not entitled to resort to frivolous accusa- tions of conspiracy to evade the Illinois Brick rule; the allega- tion must still reach the level of baseline plausibility. We recognized in Paper Systems that a different problem might arise in some cases: “[p]erhaps if a conspirator defects and sues its former comrade, that snitch would come to own the right to damages.” 281 F.3d at 632 . Until that happens, however, we held that the plaintiffs “are entitled to collect damages from both the manufacturers and their intermediar- ies if conspiracy and overcharges can be established.” Id. Nothing in this case even hints at a distributor who defected and then sued, and so we have no need to explore this possi- bility further. 12 No. 18-3735 The district court thus erred in holding that the Illinois Brick rule bars the first purchasers outside of a conspiracy from suing under the antitrust laws except in cases where ver- tical price fixing is alleged. Provided that our plaintiffs have properly alleged a conspiracy, they may sue for whatever form of anticompetitive conduct they are able plausibly to al- lege. III The mere fact that the Providers are proper antitrust plain- tiffs from the Illinois Brick standpoint does not resolve the question whether they have adequately alleged a conspiracy. We turn therefore to that question, beginning with their accu- sation that Becton conspired with its distributors. The role of the distributors is critical to the Providers’ case. That is because the distributors are the entities from which the Providers purchased the products at issue. If the distributors were not part of the alleged conspiracy, then Providers’ case falls apart: no conspiracy, no direct purchaser status, no right to recover. The distributors would be the proper plaintiffs in such a situation and could sue Becton, as other distributors have done in other cases against Becton. See, e.g., In re Hypo- dermic Prods. Antitrust Litig., 484 F. App’x 669 (3d Cir. 2012). In order to show an antitrust conspiracy, the Providers must prove that “the manufacturer and others had a con- scious commitment to a common scheme designed to achieve an unlawful objective.” Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 , 768 (1984). In a case such as this one, where the plaintiffs allege that participants in a market at different levels of the distribution chain entered into a conspiracy, the plaintiffs must show that similarly situated members of the No. 18-3735 13 conspiracy coordinated not only with the manufacturer, but also with each other. If the plaintiffs do not adequately allege this type of coordination, they have made, at best, an allega- tion of a number of different conspiracies, not of a single con- spiracy. The Providers allege that Becton and the distributors were members of a “hub-and-spokes conspiracy.” This type of con- spiracy requires a plaintiff to allege both that there was a cen- tral coordinating party (the “hub”), and that each participant (along the “rim”) recognized that it was part of the greater arrangement, and it coordinated or otherwise carried out its duties as part of the broader group. In other words, a “hub- and-spokes conspiracy” requires a “rim” connecting the vari- ous horizontal agreements. See, e.g., In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186 , 1192 (9th Cir. 2015). As applied to our case, the Providers must allege that the distrib- utors, in addition to coordinating with Becton, would not have attempted to inflate prices without assurance that each distributor was abiding by the agreement and behaving in the same way. The complaint before us does not accomplish this. The Providers allege only that the distributors “enforce” the terms of the contracts that the GPOs negotiated and then assess the Providers an additional fee for the distributors’ services. The complaint has nothing to say about any involvement that the distributors may have in inflating the prices, or whether they coordinate among each other or with Becton or the GPOs as part of the conspiracy. The Providers ask us instead to find that the distributors are members of the conspiracy because they buy and sell the devices according to the terms of con- tracts that the GPOs allegedly negotiated in a crooked 14 No. 18-3735 fashion. But this allegation is insufficient to find a conspiracy between the distributors and Becton. The Providers argue that we should not demand such di- rect evidence, and that there is enough here to infer an agree- ment among the distributors. They rely heavily upon Toys “R” Us, 221 F.3d 928 , but that case does not support their position. We held in Toys “R” Us that in certain circumstances, an agreement between horizontally situated market participants can be inferred for the purpose of an antitrust conspiracy, even in the absence of an express agreement. In that case, Toys “R” Us had sent letters to major toy manufacturers, indicating that it would not carry the manufacturers’ toys unless the manufacturers agreed to withhold certain highly desirable toys from warehouse clubs. The FTC found that it would not have made economic sense for any individual manufacturer to capitulate to these demands, unless it knew that its com- petitors would also play along. Id. at 935. That finding, we concluded, was supported by substantial evidence. It was thus permissible to infer that even if the manufacturers did not expressly agree to join a conspiracy with one another, they had functionally joined the conspiracy because they were as- sured that their competitors would all follow the same anti- competitive strategy. Here, by contrast, the Providers have not alleged that the distributors engaged in parallel conduct, much less that they coordinated their actions to engage in illegal activity. In their complaint, the Providers list three activities they say the dis- tributors have undertaken “in furtherance of the conspiracy.” First, the distributors agree to distribute Becton’s products pursuant to anticompetitive contractual terms. Second, the distributors enforce Becton’s penalty pricing system, which No. 18-3735 15 penalizes the healthcare providers if they switch to a different manufacturer. Third, the distributors make payments to the GPOs based on the volume of sales under the contracts. These allegations, whether taken alone or together, do not suffice to describe a hub-and-spokes conspiracy. All the Pro- viders have alleged is that the distributors buy and sell the devices in accordance with the terms of the contracts that the GPOs have negotiated. They have made no argument that the distributors played any role in setting the anticompetitive pricing or that there was any quid pro quo according to which Becton compensated them for participating in the alleged an- titrust conspiracy. The fact that the distributors pay a fee to the GPOs for the latter’s role in negotiating the contracts is not anticompetitive conduct on its own; indeed, it is to be ex- pected. Without an allegation that the distributors have par- ticipated in the conspiracy or knowingly engaged in parallel anticompetitive conduct, the Providers cannot sue the distrib- utors under the antitrust laws. As the complaint now stands, the Providers have not shown that the distributors made a conscious commitment to participate in an illegal scheme. Without any allegation that the distributors coordinated with Becton to profit from the an- ticompetitive scheme, their case is barred under Illinois Brick. In a last-gasp effort, the Providers argue that they should be given a chance to amend their complaint, given the legally flawed and relatively unexplored reason that underlay the district court’s ruling. The United States, appearing as amicus curiae, agrees that the district court’s Illinois Brick analysis was incorrect and supports vacating the district court’s judgment and remanding for further proceedings. The distributors con- tend in response that the Providers have waived the 16 No. 18-3735 opportunity to amend their complaint, because they did not focus on Illinois Brick’s application to conspiracies in their opening brief. But the opening brief did cite Paper Systems, it did discuss the rule that direct purchasers from antitrust con- spiracies are entitled to sue under Illinois Brick, and it stressed the conspirators’ joint and several liability. This is more than enough to avoid waiver in this court. The district court, too, extensively discussed what it called a conspiracy exception, and so there was no waiver at that level either. What the Providers could not have foreseen was the dis- trict court’s categorical rejection of Illinois Brick for the type of anticompetitive activity they were alleging—a rejection that did not depend on any additional detail about the structure of the conspiracy. Now that we have straightened out the Illi- nois Brick side of things, we conclude that the Providers should have an opportunity to file an amended complaint, provided that they believe they can adequately plead that the distributors were part of the putative conspiracy. Any such amended complaint should also plausibly indicate (if possi- ble) how, if at all, the GPOs might be liable. IV We VACATE the judgment of the district court and REMAND for further proceedings in accordance with this opinion.

2020-01-17 22:02:00.623419+00

Littleton

*315OPINION. Littleton : Petitioner contends that the first consent, not having been signed by the Commissioner, was no consent under the statute and that the consent of December 11, 1925, is of no effect because entered into beyond the five-year period of limitation relating to assessment and collection of the deficiency under the decedent’s 1918 return. Since the first consent executed by the administrator was not signed by the Commissioner, it can not be considered as having any effect on the statute of limitations. Estate of Adrian F. Sherman, *31616 B. T. A. 786. The consent of December 11 was entered into by the parties with full knowledge of the circumstances relating to the statute of limitations and the issue here is governed by the determination of the Board in Wells Brothers Co. of Illinois et al., 16 B. T. A. 79, in which the Board said: * * * It may be observed that tbe first waiver covering tlie liability of the Illinois Company for the year 1917 was executed more than five years after the return was filed, and that the second waiver was not made until after the expiration of the first waiver. In the case of the Maine Company, the first waiver for 1917 was executed within the five-year period, but the second waiver was not executed until subsequent to the expiration of the first. In other words, there was as to both companies, a time when the statute of limitations had run against the 1917 taxes. But we find that on December 4, 1925, which was prior to the enactment of the Revenue Act of 1926, both companies and the respondent entered into written waivers or consents for the year in question. In Joy Floral Co., 7 B. T. A. 800, the principle was laid down that waivers or consents filed subsequent to the expiration of the statutory period for assessment and collection, but prior to the Revenue Act of 1926, were valid and operated to extend the period within which assessment and collection of the tax m’ght be made. On appeal to the Court of Appeals of the District of Columbia this decision was reversed, 29 Fed. (2d) 865, apparently upon the ground that the statute did not contemplate a consent after the statutory period had expired. Since the statute related to the remedy and did not attempt to extinguish the liability as did the Revenue Act of 1926, we find no reason to limit the right of the respective parties to consent to a later determination, assessment and collection of the tax to a period prior to the expiration of the period limited by the statute. There is nothing in the evidence herein which indicates that the consents were not freely and fairly made with full knowledge of all the facts, and while we are of opinion that the question of consideration is immaterial, in view of the express authority granted by Congress, if it is material it is to be found in the antecedent liability. We believe this to be in conformity with the rules applied generally to statutes of limitation relating to the remedy as well as to the rule that such statutes are to be construed in favor of the Government. Loewer Realty Co. v. Anderson, 31 Fed. (2d) 268. In our opinion, the waivers or consents relating to the year 1917 were valid and served to extend the period for assessment and collection of the tax for that year. See, also, The Bradford Co., 14 B. T. A. 339, 344; Frank E. Harris Co., 16 B. T. A. 469; Mary S. Aldridge, Executrix, v. United States, 64 Ct. Cls. 424; Davis v. United States, 27 Fed. (2d) 630. In the latter case the court said: * * * But I feel certain that the executors here, without regard to the decisions in Maine as to their authority to waive the statute in Maine, have a right to take advantage of the statutory right granted them by Congress, and that they cannot be interfered with if in their judgment it seems proper and for the best interest of the estate in their charge to waive the statute for the purpose of collecting the money due the estate. The reasoning in the case recently decided by the Court of Claims, referred to in the defendant’s brief, of Aldridge, Executrix, vs. United States, appears to me to be conclusive as well whether the waiver was before or after the statute of limitations had operated. *317The petitioner’s plea of the statute of limitation is not well taken and is accordingly denied. The proceeding will be restored to the calendar for hearing on the merits of other issues in due course. Reviewed by the Board. Smith dissents.

2020-12-03 01:00:16.129707+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-30631.0.pdf

Case: 19-30631 Document: 00515658628 Page: 1 Date Filed: 12/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2020 No. 19-30631 Lyle W. Cayce Clerk In re: Taxotere (Docetaxel) Products Liability Litigation ______________________________ Julie Clark, Plaintiff—Appellant, versus Sanofi-Aventis, U.S., L.L.C.; Sanofi U.S. Services, Incorporated, formerly known as Sanofi-Aventis U.S., Incorporated Defendants—Appellees, ______________________________ Renee Jeffers, Plaintiff—Appellant, versus Sanofi-Aventis, U.S., L.L.C.; Sanofi U.S. Services, Incorporated, formerly known as Sanofi-Aventis U.S., Incorporated, Defendants—Appellees, Case: 19-30631 Document: 00515658628 Page: 2 Date Filed: 12/02/2020 ______________________________ Carriene Nevin, Plaintiff—Appellant, versus Sanofi-Aventis, U.S., L.L.C.; Sanofi U.S. Services, Incorporated, formerly known as Sanofi-Aventis U.S., Incorporated; Accord Healthcare, Incorporated; Hospira, Incorporated; Hospira Worldwide, L.L.C., formerly known as Hospira Worldwide, Incorporated; McKesson Corporation, formerly known as McKesson Packaging; Sandoz, Incorporated; Sun Pharma Global FZE; Sun Pharmaceutical Industries, Incorporated, formerly known as Caraco Pharmaceutical Laboratories, Limited; Pfizer, Incorporated; Actavis Pharma, Incorporated; Actavis, L.L.C., formerly known as Actavis, Incorporated, Defendants—Appellees, ______________________________ Deborah Purnell, Plaintiff—Appellant, versus Sandoz, Incorporated, Defendant—Appellee. 2 Case: 19-30631 Document: 00515658628 Page: 3 Date Filed: 12/02/2020 No. 19-30631 Appeals from the United States District Court for the Eastern District of Louisiana USDC Nos. 2:16-MD-2740, 2:18-CV-7024 Before Clement, Ho, and Duncan, Circuit Judges. Per Curiam:* Julie Clark, Renee Jeffers, Carriene Nevin, and Deborah Purnell (collectively, “plaintiffs”) sued defendants alleging they suffered permanent hair loss as a result of taking defendants’ prescription chemotherapy drugs. The district court dismissed their suits for failure to comply with case management orders and denied their motions to reconsider. Clark, Jeffers, and Purnell appeal only the denial of their motions, while Nevin appeals both the dismissal of her suit and the denial of her motion. We AFFIRM. I. Plaintiffs’ appeal arises out of multidistrict litigation pending in the Eastern District of Louisiana. Defendants manufacture, sell, distribute, or hold regulatory approval for certain prescription chemotherapy medications that are commonly used to treat breast cancer patients, specifically Taxotere, the brand-name drug, and/or docetaxel, the generic. Plaintiffs claim that defendants knew these drugs cause permanent hair loss and failed to warn patients of that side effect. In October 2016, the Judicial Panel on Multidistrict Litigation centralized numerous actions involving these claims and transferred them to the Eastern District of Louisiana. In re Taxotere * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. 3 Case: 19-30631 Document: 00515658628 Page: 4 Date Filed: 12/02/2020 No. 19-30631 (Docetaxel) Prods. Liab. Litig., 220 F. Supp. 3d 1360 , 1361 (J.P.M.L. 2016). More than 12,000 actions were pending in this MDL as of October 2020.1 After transfer to the Eastern District, the district court issued a series of pretrial orders to manage filing of claims and discovery. As relevant here, Amended Pretrial Order (“PTO”) No. 22 directed each plaintiff to complete and serve upon defendants a Plaintiff Fact Sheet (“PFS”) and medical release authorizations within seventy-five days of the date her case was docketed in the MDL. Among other things, the PFS asked each plaintiff to identify which drug she had been prescribed, provide records demonstrating her use of the drug, and provide proof of her alleged hair loss in the form of medical records or dated photographs. Each plaintiff was also required to sign a declaration attesting that the information provided in the PFS was true and correct. Amended PTO 22 provided that the PFS responses would be treated as answers to interrogatories and production requests under the Federal Rules of Civil Procedure. If a plaintiff failed to timely submit a complete and verified PFS, signed and dated authorizations, and/or all responsive documents requested in the PFS, defendants were directed to file a notice of deficiency on MDL Centrality, an electronic database. The notice triggered a thirty-day period to cure the deficiency. A plaintiff’s failure to cure within the thirty-day period permitted defendants to serve a notice of non-compliance on plaintiffs’ liaison counsel.2 If a plaintiff remained in non-compliance after this additional 1 Pending MDLs By Actions Pending as of October 15, 2020, https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_ Pending-October-15-2020.pdf. 2 The district court appointed liaison counsel for plaintiffs and defendants and charged them with receiving orders and notices from the Court and transmitting them to counsel for individual parties. 4 Case: 19-30631 Document: 00515658628 Page: 5 Date Filed: 12/02/2020 No. 19-30631 thirty-day period, defendants could add the plaintiff’s name and case number to the “call docket” no later than fourteen days before the next status conference and show cause hearing. The district court warned that any plaintiff who failed to appear at the call docket and establish good cause for any remaining deficiencies could have her case dismissed with prejudice or be subject to other appropriate relief. A. Julie Clark filed her individual short form complaint on July 26, 2018. Thus, her PFS, authorizations, and other responsive documents were due by October 9, 2018. On November 20, 2018, defendants listed her case in a notice of non-compliance, specifically identifying her failure to provide a PFS.3 When Clark failed to provide a PFS within thirty days, defendants provided Clark with notice that her case was subject to dismissal at the next show cause hearing. Clark did not file a PFS prior to the January 18, 2019, show cause hearing, but she retained new counsel who was present at the hearing. Clark’s previous counsel informed the court at the hearing that he had agreed to a substitution and that new counsel had yet to file a motion to substitute counsel, but he also stated that new counsel was “aware of the pending status,” and he “believed they were handling it.” Although new counsel did not identify himself, the court granted a fifteen-day extension to file the PFS. New counsel then filed a motion for substitution of counsel on January 21, 2019, which the court granted a day later. 3 Defendants refer to two groups, the “Sanofi Defendants” and the “505(b)(2) Defendants,” but because the distinction does not affect our analysis here, we refer to actions taken by either group as conduct by “defendants.” 5 Case: 19-30631 Document: 00515658628 Page: 6 Date Filed: 12/02/2020 No. 19-30631 Two months passed without Clark filing a PFS. Accordingly, the court dismissed Clark’s case with prejudice on April 23, 2019, based on her failure to submit a PFS within the extended deadline. On May 3, 2019, Clark submitted a PFS through MDL Centrality. Clark then filed a motion under Federal Rule of Civil Procedure 59(e) or, in the alternative, Rule 60(b). Clark claimed in her motion that her new law firm had not received proper notification of a deficiency and that it would otherwise have timely filed Clark’s PFS, which it said it had in its possession prior to the January 18, 2019, hearing. The district court denied Clark’s motion, finding that “counsel had ample time before the April 23, 2019 order dismissing Clark’s case to apprise themselves of the status of her case and to file her PFS.” Clark appealed. B. Renee Jeffers filed suit on December 4, 2017, so her PFS, authorizations, and other responsive documents were due by February 17, 2018. Jeffers filed a PFS in early February 2018 and a subsequent amended PFS. Jeffers did not file a declaration with either submission. Defendants issued a deficiency notice on August 8, 2018, that identified more than 160 deficiencies in Jeffers’s amended PFS, including her failure to submit a declaration. Defendants then listed Jeffers on a November 20, 2018, notice of non-compliance, specifically identifying the absence of her declaration. When Jeffers failed to cure the declaration deficiency, defendants provided notice that her case would be called at the January 18, 2019, show cause hearing. Jeffers’s counsel told the district court at the hearing that her declaration had been submitted the previous day, and the district court granted her a fifteen-day extension to confirm her compliance. Jeffers now concedes her counsel’s statement was incorrect. 6 Case: 19-30631 Document: 00515658628 Page: 7 Date Filed: 12/02/2020 No. 19-30631 Upon defendants’ notification that Jeffers had not complied two months later, the district court dismissed her suit on April 23, 2019, for failure to timely comply with her obligations. Seven days later, Jeffers submitted a signed declaration to MDL Centrality. She then filed a motion to reconsider dismissal under Rule 59(e) or Rule 60(b). In her motion, she attributed the failure to upload a declaration previously to “Centrality . . . having issues with uploading documents.” The district court denied her motion, finding that Jeffers had failed to identify any changes in the law, new evidence, or manifest errors warranting reversal of her dismissal. Jeffers appealed the district court’s order. C. Carriene Nevin filed her short form complaint on February 15, 2018, so her PFS and other documents were due by May 1, 2018. Between October 11 and 31, 2018, Nevin submitted a PFS and certain documents, including three pages copied from a handwritten calendar that stated “Taxotere” on certain days and that were offered as evidence of her use of Taxotere. Defendants issued an initial deficiency notice to Nevin on December 4, 2018, followed by a February 1, 2019, notice of non-compliance; both identified her failure to submit sufficient proof-of-use evidence or injury photographs showing her hair before chemotherapy. When Nevin failed to cure these deficiencies, defendants filed a notice of non-compliance on March 20, 2019, requesting dismissal of her case at the April 4, 2019, show cause hearing. At the show cause hearing, Nevin argued that whether the calendar pages were sufficient proof-of-use documents was a “question of fact,” and Nevin’s counsel stated that it had been necessary to reorder Nevin’s medical records on March 14, 2019, apparently because the first facility she identified was incorrect. The Court rejected the “question of fact” argument but granted Nevin an additional thirty days to locate proof-of-use medical 7 Case: 19-30631 Document: 00515658628 Page: 8 Date Filed: 12/02/2020 No. 19-30631 records. Although Nevin appears to have provided a pre-chemotherapy photo a few days before the show cause hearing, she did not upload any proof- of-use medical records. As a result, defendants requested dismissal of her case on May 9, 2019. The same day, Nevin submitted a “plan of care” to MDL Centrality. Nevertheless, the district court dismissed her case with prejudice. Nevin then filed a motion for reconsideration under Rule 59(e) or alternatively 60(b), attaching the “plan of care” and arguing her delay was excusable since the proof-of-use information was “not controlled by [her] or her counsel.” The district court denied her motion, reasoning that the facts supported dismissal and that plaintiff failed to point to any change in the law, new evidence, or manifest errors justifying reversal of her case’s dismissal. Nevin initially appealed only the denial of her motion to reopen, but the district court granted her subsequent motion to file an amended notice of appeal, which she argued was necessary to correct her counsel’s mistaken failure to appeal the dismissal order. D. Deborah Purnell filed her short form complaint on February 9, 2018, so her PFS and other responsive documents were due by April 25, 2018. When she failed to meet this deadline, defendants issued a notice of non- compliance on August 27, 2018, identifying her case. Upon her continued non-compliance, defendants asked for her case to be dismissed at the November 15, 2018, show cause hearing. At the show cause hearing, Purnell’s counsel asked the court for an extension to decide whether to file a PFS because Purnell had died. The court granted a thirty-day extension, but Purnell’s counsel did not submit a PFS within that time. The day after the show cause hearing, Purnell’s counsel submitted a declaration to MDL Centrality but no other documents. 8 Case: 19-30631 Document: 00515658628 Page: 9 Date Filed: 12/02/2020 No. 19-30631 Upon notice of Purnell’s continued deficiency, the district court dismissed her suit on December 27, 2018. On May 9, 2019, Purnell submitted a PFS. A month later, she filed a motion to reopen her case under Rule 60(b), explaining that her attorney incorrectly stated she was dead and asserting that she mailed her PFS to her counsel prior to the hearing. The district court denied her motion, finding that she had “ample time to file her PFS and failed to do so until after her case was dismissed—more than ten months after she filed her suit.” Purnell’s counsel’s mistakes did not “justify relief under Rule 60(b),” the district court found. Purnell appealed the court’s denial. II. We first consider Nevin’s challenge to the dismissal order. “We review matters concerning docket management for an abuse of discretion,” including dismissal with prejudice as a sanction for failure to comply with court orders.4 In re Deepwater Horizon, 907 F.3d 232 , 234–235 (5th Cir. 2018) 4 Defendants argue plaintiffs have forfeited any challenges to the procedures employed by the district court for dismissing cases with prejudice for failure to comply with the court’s orders. As a result, they contend, we should affirm the district court’s order dismissing Nevin and its denial of plaintiffs’ motions to reopen without considering the merits, or alternatively, we should review the district court’s management process for plain error. Defendants in an appeal from the same MDL advanced similar arguments, which we rejected. In re Taxotere (Docetaxel) Products Liab. Lit. (Kuykendall), 966 F.3d 351 , 356 n.4 (5th Cir. 2020). First, we noted the plaintiff, Kuykendall, “preserved her objection to the dismissal of her case when she appeared at the district court’s show-cause hearing and filed a letter challenging the defendants’ request for dismissal.” Id. Similarly, here, Nevin appeared at the show cause hearing and asked for an extension of time to comply, thus preserving her objection. Cf. Law Funder, L.L.C. v. Munoz, 924 F.3d 753 , 758–59 (5th Cir. 2019) (finding argument forfeited where the dismissed party “fail[ed] to oppose [plaintiff’s] motion to sanction”). Kuykendall also argued, like plaintiffs here, that the court applied the wrong test; we reasoned that although Kuykendall “did not make this argument to the district court, it is unclear when she could have done so,” given the district court’s ability to issue sanctions without articulating a specific legal test. Kuykendall, 966 F.3d at 356 n.4. And we stated that we had reviewed “the entirety of a plaintiff’s challenge 9 Case: 19-30631 Document: 00515658628 Page: 10 Date Filed: 12/02/2020 No. 19-30631 (per curiam); see also In re Taxotere (Docetaxel) Products Liab. Lit. (Kuykendall), 966 F.3d 351 , 356 (5th Cir. 2020). In general, “[a] trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Deepwater Horizon, 907 F.3d at 234 (quoting Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607 , 610 (5th Cir. 2006)). However, because of the severity of dismissal with prejudice as a sanction, we have “limited the district court’s discretion” in that context. Kuykendall, 966 F.3d at 357 (quoting Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 , 1191 (5th Cir. 1992)). Nevin’s challenge to the dismissal of her suit presents two issues: (1) which of two legal standards applies to dismissal as a sanction in the MDL context, and (2) whether the district court correctly applied the relevant standard in her case.5 Our recent opinion in a separate appeal from the Taxotere MDL controls the first issue and provides substantial guidance on the second. See Kuykendall, 966 F.3d at 358–59. A. Plaintiffs’ first and principal argument on appeal is that the district court should have made specific findings under the fact-intensive, six-factor test for dismissal with prejudice articulated in Law Funder, L.L.C. v. Munoz, 924 F.3d 753 , 758–59 (5th Cir. 2019). Defendants, by contrast, assert that the two-factor test employed in Deepwater Horizon is appropriate in the special to a dismissal for an abuse of discretion, including the determination of the appropriate legal standard,” in similar cases. Id. The same reasoning supports the application of an abuse of discretion standard here. Finally, we noted that Kuykendall’s challenge to her dismissal “fail[ed] under any standard of review,” id., and the same is true of Nevin’s. 5 Although plaintiffs could be mistaken for challenging the merits of the district court’s dismissal of Clark, Jeffers, and Purnell, as well as of Nevin, plaintiffs admit that only Nevin appealed the merits of the district court’s dismissal order. 10 Case: 19-30631 Document: 00515658628 Page: 11 Date Filed: 12/02/2020 No. 19-30631 context of multidistrict litigation. Thus, they contend dismissal with prejudice is proper where there is “a clear record of delay or contumacious conduct by the plaintiff” and “where lesser sanctions would not serve the best interests of justice.” Deepwater Horizon, 907 F.3d at 235 (quoting Sealed Appellant v. Sealed Appellee, 452 F.3d 415 , 417 (5th Cir. 2006)). Our opinion in Kuykendall forecloses plaintiffs’ argument. Noting that “the complexity of managing an MDL necessitates a standard that gives district courts greater flexibility to dismiss a plaintiff for a discovery violation,” we held that the two-factor Deepwater Horizon test “applies to a district court’s dismissal with prejudice in the unique context of an MDL.” Kuykendall, 966 F.3d at 358. And we applied that test to the Eastern District of Louisiana’s dismissal with prejudice of Dorothy Kuykendall’s suit for failure to timely submit a PFS, despite multiple extensions of the deadline. Id. at 359–60. Accordingly, the two-factor test applies in Nevin’s case. B. Under this standard, the district court did not abuse its discretion in dismissing Nevin’s suit. To the extent plaintiffs argue otherwise, “[t]he district court was not required to make specific factual findings on each of the Deepwater Horizon prongs before dismissing [Nevin’s] case.” Kuykendall, 966 F.3d at 359. Our independent review of the record confirms that both prongs of the test are satisfied, and thus the district court’s dismissal was not an abuse of discretion. See id. i. As to the first prong, Nevin’s conduct displays “a clear record of delay or contumacious conduct.” Deepwater Horizon, 907 F.3d at 235 (citation omitted). Nevin’s PFS was due on May 1, 2018, but she filed it almost six months later in October 2018. At that time, the proof-of-use evidence she offered was three handwritten calendar pages with “Taxotere” written on 11 Case: 19-30631 Document: 00515658628 Page: 12 Date Filed: 12/02/2020 No. 19-30631 certain days, and she failed to include photos of her hair prior to chemotherapy. Although Nevin was notified of her non-compliance on December 4, 2018, she failed to cure her deficiencies by February 1, 2019, when defendants issued another notice of non-compliance. She still had not cured more than a month later when she received notice that her case would be called at the April 4, 2019, show cause hearing. Although Nevin uploaded a before-chemotherapy photo a few days before the hearing, she failed to submit the requisite proof-of-use evidence in the fifteen days prior to the hearing. Even when the district court granted her a thirty-day extension at Nevin’s request, Nevin failed to comply in time. She finally submitted purported proof-of-use evidence one week after the thirty-day extension had expired. Even assuming the new evidence fulfilled her discovery obligations, Nevin failed to comply with the court’s orders for more than a year. Nevin’s repeated delays without explanation bear significant resemblance to the conduct of Kuykendall, who we found “exhibited a clear record of delay sufficient to meet the first prong.” Kuykendall, 966 F.3d at 360. Like Kuykendall, Nevin received “ample notice of the potential consequences of her failure to comply,” including the warning in PTO 22A that failure to comply could lead to “possible dismissal with prejudice or other appropriate relief.” Id. And like Kuykendall, she “did not seek additional extensions or provide an explanation” for her extreme delay in submitting her PFS and complete proof-of-injury evidence, id., and her counsel’s seeming justification that she initially identified the wrong treatment facility does not explain her one-year delay in uploading adequate proof-of-use evidence. Indeed, Kuykendall submitted her PFS five months late, as compared to Nevin’s six-month delay. Id. As we noted in Kuykendall’s case, “hundreds of other plaintiffs complied with the court’s orders, ‘demonstrating it was not logistically impossible’ to do so within the 12 Case: 19-30631 Document: 00515658628 Page: 13 Date Filed: 12/02/2020 No. 19-30631 timeline set forth in the court’s pretrial orders.” Id. (quoting Deepwater Horizon, 907 F.3d at 235). Nevin argues that her case does not present the kind of “extreme” conduct that justifies dismissal. She contends that her submission of the calendar pages demonstrates her efforts to comply with the court’s order, and she says she submitted proof-of-use information on April 22, 2019, and again on May 9, 2019, only five days after the May 4, 2019, deadline. But the PFS’s requirements, the defendants’ notices of non-compliance, and the district court made pellucid the calendar pages’ inadequacy as proof-of-use documents (even if they had not been uploaded more than five months late). Moreover, the record on MDL Centrality that Nevin cites does not show that she uploaded proof-of-use documents on April 22, and, when she finally submitted the plan of care, she did so after the deadline, despite multiple notices of non-compliance and a generous extension. As in Kuykendall, “[b]ecause this case involves an MDL, . . . the district court was empowered to ‘establish [a] schedule[ ] with [a] firm cutoff date[ ].’” 966 F.3d at 360 (alterations in original) (quoting In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 , 1232 (9th Cir. 2006)). Accordingly, Nevin’s conduct satisfies the first prong of the Deepwater Horizon test. ii. As to the second prong, the record also reveals that “lesser sanctions would not [have] serve[d] the best interests of justice.” Deepwater Horizon, 907 F.3d at 235 (citation omitted). We have said we will not affirm a dismissal unless “the district court expressly considered alternative sanctions and determined that they would not be sufficient to prompt diligent prosecution or the record reveals that the district court employed lesser sanctions prior to dismissal (assuming that plaintiff was capable of performing them) that in fact proved to be futile.” Callip v. Harris Cnty. Child Welfare Dep’t, 757 F.2d 13 Case: 19-30631 Document: 00515658628 Page: 14 Date Filed: 12/02/2020 No. 19-30631 1513, 1521 (5th Cir. 1985) (per curiam). Lesser sanctions may include “[a]ssessments of fines, costs, or damages against the plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.” Id. (alteration in original) (quoting Rogers v. Kroger Co., 669 F.2d 317 , 321 (5th Cir. 1982)). Additionally, “[p]roviding [a] plaintiff with a second or third chance following a procedural default is a ‘lenient sanction,’” which may justify dismissal if “met with further default.” Id. (quoting Porter v. Beaumont Enter. & J., 743 F.2d 269 , 272 (5th Cir. 1984)). Although Nevin eventually corrected one of the deficiencies identified by defendants (albeit almost eleven months late), she “consistently failed to comply with the court’s initial order—to provide a complete PFS [with all requisite responsive documents] by the required deadline.” Kuykendall, 966 F.3d at 360. And on top of the two notices of non-compliance she received from defendants months before her suit was dismissed, the court granted her an additional thirty-day extension, which, contrary to plaintiffs’ argument otherwise, qualifies as a “lenient sanction.” Callip, 757 F.2d at 1521. On this record, “it is ‘unclear what lesser sanctions could have been appropriate following the district court’s warnings and second chances,’” Kuykendall, 966 F.3d at 360 (quoting Deepwater Horizon, 907 F.3d at 236), and plaintiffs do not suggest any. Moreover, “[a]ny sanction other than dismissal would not achieve the desired effect of [Amended] PTO [22], and would further delay the district court’s efforts to adjudicate the MDL expeditiously.” Deepwater Horizon, 907 F.3d at 236. Thus, Nevin’s conduct also satisfies the second prong of the Deepwater Horizon test. Accordingly, the district court did not abuse its discretion in dismissing Nevin’s suit. 14 Case: 19-30631 Document: 00515658628 Page: 15 Date Filed: 12/02/2020 No. 19-30631 III. Next, we turn to the plaintiffs’ appeal of the district court’s order denying their motions under Rules 59(e) and 60(b). We review denials of motions under Federal Rules of Civil Procedure 59(e) and 60(b) for an abuse of discretion. Kuykendall, 966 F.3d at 360–61; Warfield v. Byron, 436 F.3d 551 , 555 (5th Cir. 2006). Under Rule 59(e), a party may move to “alter or amend a judgment” no later than twenty-eight days after the entry of judgment. Amending a judgment is “appropriate (1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law or fact.” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177 , 182 (5th Cir. 2012). A district court’s decision will survive a Rule 59(e) motion if it is “reasonable.” Midland West Corp. v. FDIC, 911 F.2d 1141 , 1145 (5th Cir. 1990). Similarly, Rule 60(b) provides that the court may “relieve a party . . . from a final judgment [or] order” for certain specified reasons, including (1) “mistake, inadvertence, surprise, or excusable neglect,” and (6) “any other reason that justifies relief.” We first consider the district court’s denial of the Rule 59(e) motions and then consider its denial of Purnell’s Rule 60(b) motion. A. The district court did not abuse its discretion in denying Clark’s, Nevin’s, and Jeffers’s Rule 59(e) motions. None of these plaintiffs satisfied the standard for altering a judgment, failing to cite a change in the controlling law, present newly discovered evidence, or point to a manifest error of law or fact.6 See Kuykendall, 966 F.3d at 361. 6 Although these plaintiffs moved in the alternative under Rule 60(b), Rule 59(e) “is not controlled by the same exacting substantive requirements” as a motion under Rule 15 Case: 19-30631 Document: 00515658628 Page: 16 Date Filed: 12/02/2020 No. 19-30631 Clark argued in her motion to reconsider that her counsel’s conduct, not her own, had caused the delay in filing her PFS that led to her dismissal. She also asserted that defendants would not be prejudiced by reversing the dismissal because she had uploaded the critical evidence “within two weeks of the dismissal.” Neither of these reasons provides a basis for altering the judgment under Rule 59(e). Clark’s case presents even more egregious facts than those in Kuykendall, where we found the district court did not abuse its discretion by denying Kuykendall’s Rule 59(e) motion. 966 F.3d at 361. Kuykendall uploaded a new PFS “in between the end of the deadline and the date of the dismissal order,” but we found “her late partial compliance with the court’s orders failed to change the fact that she had persistently ignored the previous deadlines.” Id. By contrast, Clark finally filed her PFS ten days after her case was dismissed, more than three months after the show cause hearing. Like Kuykendall, Clark was “on notice that dismissal with prejudice was a potential consequence of her inaction,” and the district court did not abuse its discretion by “refusing to reconsider its decision to issue a litigation-ending sanction.” Id. Similarly, the district court did not abuse its discretion by denying Jeffers’s Rule 59(e) motion. After Jeffers received an August 8, 2018, deficiency notice, a November 20, 2018, notice of non-compliance, a notice preceding the January 18, 2019, show cause hearing, and a fifteen-day extension granted by the court at the show cause hearing, the district court dismissed her suit on April 23, 2019, for failing to submit her declaration. Seven days later, Jeffers uploaded a signed declaration to MDL Centrality. In her subsequent motion to reconsider, she blamed her failure to comply on 60(b). Lavaspere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 , 173–74 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). Thus, we only consider their motions, like the district court, under Rule 59(e). 16 Case: 19-30631 Document: 00515658628 Page: 17 Date Filed: 12/02/2020 No. 19-30631 technical difficulties and defendants’ alleged failure to communicate Jeffers’s continued deficiency. Considering Jeffers’s repeated delays, despite multiple deficiency notices, and her knowledge of the consequences of failing to comply, the district court did not abuse its discretion in finding Jeffers not entitled to Rule 59(e) relief. See Kuykendall, 966 F.3d at 361. Likewise, the district court did not abuse its discretion by rejecting Nevin’s argument that the difficulty of obtaining her proof-of-use documents justified amending the judgment. Rather, as discussed supra pp. 11–14, Nevin’s severe delay and contumacious conduct provided ample reason for the court to dismiss her suit, and Nevin’s Rule 59(e) motion did not present a legitimate basis for reversing that decision. See Kuykendall, 966 F.3d at 361. B. Nor did the district court abuse its discretion by denying Purnell’s Rule 60(b) motion. Purnell moved for relief under Rule 60(b)(1) and (b)(6). “[G]ross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.” Trevino v. City of Fort Worth, 944 F.3d 567 , 571 (5th Cir. 2019) (per curiam) (citation omitted). A party has a “duty of diligence to inquire about the status of [her] case.” Id. (citation omitted). Similarly, the bar for relief under Rule 60(b)(6) is high. Relief under this section is “appropriate only in an ‘extraordinary situation’ or ‘if extraordinary circumstances are present.’” U.S. ex rel. Garibaldi v. Orleans Par. Sch. Bd., 397 F.3d 334 , 337 (5th Cir. 2005) (citations omitted). The district court dismissed Purnell’s suit on December 27, 2018, due to Purnell’s failure to file a PFS. Prior to the dismissal, Purnell received an August 27, 2018, notice of non-compliance, a notice her case would be placed on the call docket, and a thirty-day extension following the November 15, 2018, show cause hearing. Yet, Purnell did not upload a PFS until May 2019, more than five months after her case was dismissed. The only excuse she 17 Case: 19-30631 Document: 00515658628 Page: 18 Date Filed: 12/02/2020 No. 19-30631 offered for delay was her counsel’s mistaken belief that she was deceased, an oversight caused by “what appear[ed] to be a cut and paste error.” On this record, it would have been an abuse of discretion for the district court to reopen Purnell’s case under Rule 60(b)(1) “when the reason asserted as justifying relief is one attributable solely to counsel’s carelessness.” Trevino, 944 F.3d at 571 (citation omitted); cf. In re Deepwater Horizon (Lake Eugenie Land & Dev., Inc.), 814 F.3d 748 , 752 (5th Cir. 2016) (per curiam) (finding claimants had not demonstrated “excusable neglect” under Rule 60(b)(1) where the “onus [was] on the claimant to obtain and provide . . . documentation,” claimants had notice of the initial eligibility determination, and they failed to meet the deadline). Likewise, Purnell’s counsel’s “cut and paste” mistake does not rise to the “extraordinary” level necessary to grant Rule 60(b)(6) relief. Accordingly, the district court did not abuse its discretion by denying her motion. IV. For the foregoing reasons, the district court’s orders dismissing Nevin’s suit and denying plaintiffs’ Rule 59(e) and 60(b) motions are AFFIRMED. 18

2020-12-03 01:00:16.83484+00

http://www.ca5.uscourts.gov/opinions/unpub/18/18-60603.0.pdf

Case: 18-60603 Document: 00515658303 Page: 1 Date Filed: 12/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2020 No. 18-60603 Lyle W. Cayce Clerk Gregory Paul Carr, Plaintiff—Appellant, versus Lloyd Hoover, Officer, Defendant—Appellee. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:16-CV-88 Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges. Per Curiam:* Gregory Paul Carr, a Mississippi prisoner appearing pro se, sued Officer Lloyd Hoover pursuant to 42 U.S.C. § 1983 . According to Carr, Officer Hoover arrested him without a warrant or probable cause, in violation of the Fourth Amendment. The district court granted summary judgment in Officer Hoover’s favor, finding no constitutional violation and, in any case, * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 18-60603 Document: 00515658303 Page: 2 Date Filed: 12/02/2020 No. 18-60603 that Officer Hoover was entitled to qualified immunity. For the reasons that follow, we AFFIRM. I. At approximately 4:46 a.m., on July 31, 2014, defendant-appellee Officer Lloyd Hoover arrived on the 400 block of Sunflower Lane in Greenville, Mississippi. Officer Hoover was dispatched there, he claims, in response to a brief 911 call from an unknown woman. As he arrived on Sunflower Lane, Officer Hoover states that he heard a woman’s cries coming from house number 463. Officer Hoover knocked on the door and announced himself as a police officer. Once someone opened the door, Officer Hoover directed two men and four women out of the house and onto the ground. After spotting a truck on the driveway, Officer Hoover walked off the porch, away from the house, and toward the vehicle. On the truck’s console, he spotted seven boxes of Sudafed in plain view. Certain types of Sudafed contain pseudoephedrine as their active ingredient, and state law limits the number of products containing pseudoephedrine that a person can legally possess. 1 Other types of Sudafed contain phenylephrine and are not illegal to possess in large quantities. Believing the seven boxes of Sudafed he spotted contained pseudoephedrine, and having identified plaintiff-appellant Gregory Paul Carr as the truck’s owner, Officer Hoover placed Carr under arrest (the “Sudafed Arrest”). Carr was transported to the Greenville Police Department, where he was booked and jailed on, inter alia, charges of possession of a controlled substance. Carr was never convicted on these charges, and it was later discovered that the Sudafed in Carr’s truck contained phenylephrine and not 1 Pseudoephedrine is a chemical used to manufacture crystal methamphetamine. See MISS. CODE. ANN. § 41-29-313 (c) (West 2018). 2 Case: 18-60603 Document: 00515658303 Page: 3 Date Filed: 12/02/2020 No. 18-60603 pseudoephedrine, the precursor to crystal methamphetamine. The lawfulness of the Sudafed Arrest is the focus of this appeal. Carr did plead guilty to a subsequent burglary charge, 2 a crime for which he is now in prison. While in prison, serving time for the burglary, Carr filed this suit in federal district court under 42 U.S.C. § 1983 challenging only the constitutionality of the Sudafed Arrest. II. We review the district court’s grant of summary judgment de novo, applying the same standards as the district court. Mason v. Lafayette City-Par. 2 To be clear, the burglary is not wholly unrelated to the Sudafed Arrest. Specifically, an inventory search of Carr’s truck, carried out as a consequence of the Sudafed Arrest, revealed tools that were later linked to the burglary for which Carr is now in prison. A finding that the Sudafed Arrest was unlawful, therefore, might render the tools’ discovery unlawful. See Utah v. Strieff, 136 S. Ct. 2056 , 2061 (2016). But approximately thirty minutes before Carr was booked into the jail on Officer Hoover’s charges, different officers were independently called to the scene of the burglary; they watched a surveillance video of Carr, whom they recognized, breaking into vehicles and stealing tools. So, along with the tools, the burglary conviction was supported by color video evidence of the crime, an independent identification of Carr as the suspect, a confession from his accomplice, and more. As noted, Carr pleaded guilty to the burglary and is now in prison. We are mindful that “[when a prisoner] seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” See Heck v. Humphrey, 512 U.S. 477 , 479 (1994). The district court concluded Heck had “no bearing on the instant case.” Officer Hoover does not argue on appeal that Heck is a bar because of this suit’s potential consequences on the burglary conviction’s validity. We agree with the district court. Even if the tools were unlawfully discovered, this conclusion would not “necessarily imply that [Carr’s burglary] conviction was unlawful.” See Heck, 512 U.S. at 487 n.7 (“Because of . . . harmless error. . . [s]uch a § 1983 action . . . would not necessarily imply that the plaintiff’s conviction was unlawful.”); see also Brown v. Sudduth, 255 F. App’x 803, 806 (5th Cir. 2007) (collecting published authority from the Fifth Circuit and sister circuits standing for the proposition that “because a valid conviction may follow an illegal arrest, a successful § 1983 unlawful arrest action does not necessarily imply the invalidity of an underlying conviction”). Because the tools and the burglary are of no further relevance to the disposition of this appeal, we make no mention of them below. 3 Case: 18-60603 Document: 00515658303 Page: 4 Date Filed: 12/02/2020 No. 18-60603 Consol. Gov’t, 806 F.3d 268 , 274 (5th Cir. 2015). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting FED. R. CIV. P. 56). “We are not limited to the district court’s reasons for its grant of summary judgment.” Lincoln v. Scott, 887 F.3d 190 , 195 (5th Cir. 2018). Section 1983 provides a federal cause of action against “[e]very person” who under color of law causes “the deprivation of any rights . . . secured by the Constitution.” And, under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. Before the district court, Carr challenged Officer Hoover’s conduct as unconstitutional. The district court granted summary judgment in Officer Hoover’s favor. III. On appeal, in connection only with the Sudafed Arrest, Carr argues that: (1) Officer Hoover violated his Fourth Amendment rights in effectuating a warrantless search and seizure; and (2) Officer Hoover is not entitled to qualified immunity. We consider—and reject—Carr’s contentions below. a) Sudafed Arrest As we have already recounted, having seen the seven boxes of Sudafed in the truck and identified Carr as the truck’s owner, Officer Hoover placed Carr under arrest for possession of a controlled substance. 3 We address first 3 Once Officer Hoover told Carr he would be placed under arrest, Carr allegedly became belligerent and resisted, and was therefore also charged with disturbing the peace. 4 Case: 18-60603 Document: 00515658303 Page: 5 Date Filed: 12/02/2020 No. 18-60603 whether Officer Hoover’s discovery of the Sudafed was lawful, and next whether the Sudafed provided probable cause to effectuate the arrest. We conclude that both the discovery and the arrest were constitutional. i. Lawful Discovery To begin, Carr’s pro se arguments amount to an assertion that the discovery of the Sudafed was unlawful because, by walking onto the property at 463 Sunflower Lane and looking into Carr’s truck, Officer Hoover violated Carr’s Fourth Amendment interest in (1) the home and its constitutionally protected area—the curtilage—and (2) his truck. We start by addressing whether Officer Hoover invaded Carr’s Fourth Amendment interest in the home and its curtilage. If Officer Hoover unlawfully entered 463 Sunflower Lane’s premises, then any evidence discovered as a result of his intrusion would be excluded. See Murray v. United States, 487 U.S. 533 , 536 (1988)(noting that the introduction into evidence of tangible materials seized during an unlawful search is excluded). It is well established that “Fourth Amendment rights are individually held and cannot be asserted solely by reference to a particular place; rather, they may be enforced only by persons whose own protection under the Amendment has been violated.” United States v. Phillips, 382 F.3d 489 , 495 (5th Cir. 2004). So, to challenge any intrusion on Officer Hoover’s part as an invasion of Carr’s own interest in 463 Sunflower Lane, Carr must have a reasonable expectation of privacy in this particular home. To be sure, Carr’s truck was parked on 463 Sunflower Lane’s driveway. And in some instances, a home’s driveway may be part of the home’s curtilage. See, United States v. Because Officer Hoover smelled alcohol on Carr’s breath, Carr was arrested on charges of public drunkenness, too. We omit mention of these charges as Officer Hoover only needed probable cause for “any crime” to arrest Carr lawfully. See Allen v. Cisneros, 815 F.3d 239 , 246 (5th Cir. 2016). 5 Case: 18-60603 Document: 00515658303 Page: 6 Date Filed: 12/02/2020 No. 18-60603 Holley, 831 F.3d 322 , 335 n.4 (5th Cir. 2016) (Graves, J., dissenting) (noting that precedent has not “announce[d] a broad rule that a driveway is not part of a home’s curtilage”). But even if we assume, arguendo, that the driveway in this case is protected curtilage, Carr would have no reasonable expectation of privacy in it because he was merely a temporary guest at 463 Sunflower Lane. See Collins v. Virginia, 138 S. Ct. 1663 , 1674 (2018) (citing Pennsylvania v. Labron, 518 U.S. 938 , 939-40 (1996) (noting that in Labron, the Court upheld a warrantless search of a truck parked in a driveway, in part, because “[u]nlike in [Collins], there was no indication that the individual who owned the truck in Labron had any Fourth Amendment interest in the farmhouse or its driveway”). It is undisputed that Carr had been inside 463 Sunflower Lane for only a few minutes; he did not know the other people there; he does not own the home; and he does not know who does. He was not a guest who “typif[ies] those who may claim the protection of the Fourth Amendment.” See Phillips, 382 F.3d at 496 (quoting United States v. Vega, 221 F.3d 789 , 797 (5th Cir. 2000) (noting, inter alia, the lack of a prior relationship between the defendants and the lessee of the apartment, and the brevity of the visit)). Therefore, Carr’s status as a temporary guest did not vest him with any reasonable expectation of privacy in this particular home or its curtilage. Cf. Minnesota v. Carter, 525 U.S. 83 , 88 (1998) (concluding that because respondents had no legitimate expectation of privacy in the apartment, whether the police officer’s observation constituted a search was irrelevant); United States v. Wineinger, 208 F. App’x 286, 289 (5th Cir. 2006) (finding that a temporary guest lacked reasonable expectation of privacy). Without a reasonable expectation of privacy in this particular home’s curtilage, Carr may not challenge Officer Hoover’s entry as a violation of his own Fourth Amendment rights. 6 Case: 18-60603 Document: 00515658303 Page: 7 Date Filed: 12/02/2020 No. 18-60603 Further, any contention that Officer Hoover intruded on Carr’s Fourth Amendment interest in the truck also fails, because Officer Hoover’s conduct did not constitute a search of Carr’s truck. On this record, it is clear that Officer Hoover merely walked next to the truck and looked inside—he did not conduct a search, under the meaning of the Fourth Amendment, at all. See Arizona v. Hicks, 480 U.S. 321 , 328 (1987) (“[A] truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a ‘search’ for Fourth Amendment purposes, and therefore does not even require reasonable suspicion.”); cf. Ker v. California, 374 U.S. 23 , 36-37 (1963) (finding that it was reasonable for the officer to go to the door and look in, and that when he saw the brick of marijuana, he was not engaged in any search at all). The discovery of the Sudafed was lawful. ii. Probable Cause Once Officer Hoover looked inside the truck, saw what he believed to be seven boxes of Sudafed containing pseudoephedrine, and identified Carr as the truck’s owner, we conclude he had probable cause to effectuate a warrantless arrest. “Probable cause for a warrantless arrest exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” United States v. Ho, 94 F.3d 932 , 935-36 (5th Cir. 1996). Probable cause requires substantially less evidence than that sufficient to support a conviction. Id. As noted, Mississippi Code § 41-29-313 limits the amount of Sudafed containing pseudoephedrine that a person can possess, as this type of Sudafed is used to make crystal methamphetamine. See, e.g., Williamson v. State, 876 So. 2d 353 , 354 (Miss. 2004) (“[The officer] discovered several boxes of Sudafed. . . . [T]hese chemicals constitute precursors used in the 7 Case: 18-60603 Document: 00515658303 Page: 8 Date Filed: 12/02/2020 No. 18-60603 illegal manufacture of controlled substances.”); Venezia v. State, 203 So. 3d 1 , 3 (Miss. Ct. App. 2016) (“It was learned [that the defendant] had purchased Sudafed, the main ingredient in methamphetamine.”). Officer Hoover saw, inside the truck, large quantities of what he reasonably—although mistakenly—believed to be a controlled substance. See Miss. Code Ann. § 41 –29–313(c) (West 2018) (“[Possessing p]roducts containing more than twenty-four (24) grams of . . . pseudoephedrine . . . constitute[s] a rebuttable presumption of intent to use the product as a precursor to methamphetamine or another controlled substance.”). Carr admitted to Officer Hoover that the truck belonged to him. This is enough to establish probable cause. Cf. United States v. Anderson, 500 F.2d 1311 , 1317 (5th Cir. 1974) (“[T]he discovery of marijuana in the trunk of the car certainly provided probable cause for the arrest.”); Williamson, 876 So.2d at 353 (affirming a trial court’s denial of a motion to suppress where an anonymous tip to police provided information that two men purchased large quantities of Sudafed). Certainly, Officer Hoover, after arresting Carr and transporting him for booking, was informed that the Sudafed in the truck contained phenylephrine and not pseudoephedrine—the precursor to crystal methamphetamine. This mistake of fact, however, is of no moment, for the totality of the circumstances suggest Officer Hoover’s mistake was a reasonable one. See Heien v. North Carolina, 574 U.S. 54 , 61 (2014) (“We have recognized that searches and seizures based on mistakes of fact can be reasonable.”). After all, Officer Hoover was at the scene in the dimly-lit early- morning hours. He spotted seven boxes of Sudafed together on the truck’s consol. After asking Carr why he had so many boxes of Sudafed, Officer Hoover received no clear answer. Officer Hoover could only see the that the packages were labeled with the word “Sudafed.” See Ho, 94 F.3d at 935-36 8 Case: 18-60603 Document: 00515658303 Page: 9 Date Filed: 12/02/2020 No. 18-60603 (“Probable cause for a warrantless arrest exists [based on] the totality of facts and circumstances within a police officer’s knowledge at the moment of the arrest . . . .”); United States v. Nicholson, 721 F.3d 1236 , 1244 (10th Cir. 2013) (“A totality of the circumstances approach makes sense in this factfinding role, because officers can exercise their judgment based on their experience and common sense.”) (citing United States v. Cortez, 449 U.S. 411 , 418 (1981) (“[T]he evidence . . . must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”)); see, e.g., United States v. Jones, No. L–12–10, 2012 WL 1309837 , at *6 (S.D. Tex. Apr. 16, 2012) (finding an officer’s misreading of a letter “I” for a number “1” to be a reasonable mistake given the fighting conditions and distance). And, the Fourth Amendment permits both reasonable mistakes of law and fact. See Heien, 574 U.S. at 61 (2014); see also Hill v. California, 401 U.S. 797 , 804 (1971) (noting that “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment”). Officer Hoover’s reasonable mistake of fact, therefore, leaves undisturbed our conclusion that he had sufficient probable cause to effectuate the arrest. 4 4 All types of Sudafed contain “a nasal decongestant, either pseudoephedrine or phenylephrine.” Carr argues that all Officer Hoover had to do to differentiate between Sudafed with pseudoephedrine and Sudafed with phenylephrine was “read the label.” Officer Hoover attested to the fact that what he could see was a clear “Sudafed” label on a large quantity of boxes. And he relied on his knowledge that possessing a large quantity of Sudafed containing pseudoephedrine is prohibited, as it is used to manufacture crystal methamphetamine. Should any doubt remain as to whether Officer Hoover had probable cause to effectuate the Sudafed Arrest, however, it is inconsequential; Officer Hoover is entitled to qualified immunity if he “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” D.C. v. Wesby, 138 S. Ct. 577 , 591 (2018) (quoting Anderson v. Creighton, 483 U.S. 635 , 641 (1987)) (alterations in original). Under these facts, Officer Hoover—at minimum—had “arguable probable cause” to effectuate the Sudafed Arrest. See Mendenhall v. Riser, 213 F.3d 226 , 230 (5th Cir. 2000) (“[I]f officers of reasonable competence could disagree on [probable cause], immunity should be recognized.”). 9 Case: 18-60603 Document: 00515658303 Page: 10 Date Filed: 12/02/2020 No. 18-60603 iii. Fruit of the Poisonous Tree But liberally construing Carr’s pro se briefs, as we must, see Grant v. Cuellar, 59 F.3d 523 , 524 (5th Cir. 1995), it appears Carr’s challenge to the Sudafed Arrest’s constitutionality is also based on Officer Hoover’s initial conduct at 463 Sunflower Lane. And, to be sure, if Officer Hoover acted unconstitutionally and thereafter discovered the Sudafed as a direct result of his illegal conduct, any analysis considering whether Carr’s arrest was supported by probable cause might not legally depend on the Sudafed as evidence. See United States v. Hernandez, 670 F.3d 616 , 621 (5th Cir. 2012) (holding that “the officers could not have relied on Hernandez’s admission . . . as probable cause to arrest her, because the officers’ Fourth Amendment violation had already occurred, tainting Hernandez’s admission”). In other words, the Sudafed would be considered “fruit of the poisonous tree.” Strieff, 136 S. Ct. at 2061. While courts must exclude “primary evidence obtained as a direct result of an illegal search or seizure” and “evidence later discovered,” Id. (quoting Segura v. United States, 468 U.S. 796 , 804 (1984)), otherwise- suppressible evidence will still be admitted if the connection between the unconstitutional conduct and the evidence is “so attenuated as to dissipate the taint.” United States v. Grosenheider, 200 F.3d 321 , 327 (5th Cir. 2000); see Strieff, 136 S. Ct. at 2061 (elaborating on the attenuation doctrine). In this case, although Officer Hoover ordered Carr out of the house and onto the ground, Officer Hoover’s knock and subsequent commands were not, in any sense, the but-for cause of the discovery of the Sudafed. “Our cases show that but-for causality is . . . a necessary . . . condition for suppression.” Hudson v. Michigan, 547 U.S. 586 , 592 (2006) (“In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence.”) (emphasis in original). Indeed, Officer Hoover did not ask any of the occupants to lead him to the truck nor 10 Case: 18-60603 Document: 00515658303 Page: 11 Date Filed: 12/02/2020 No. 18-60603 did he command them to unlock the vehicle. The discovery of the Sudafed depended simply on the fact that Officer Hoover could see seven boxes of it on the truck’s console. We agree with the district court, then, that the Sudafed Arrest was supported by probable cause and did not violate Carr’s Fourth Amendment rights. To the extent Carr intends to challenge the legality of Officer Hoover’s initial conduct at 463 Sunflower Lane independently, we find Carr waived the relevant arguments on appeal. b) Waived Arguments Much of the district court’s opinion, Carr’s brief, and Officer Hoover’s response focus on a 911 call, which may or may not have been placed. According to Officer Hoover, it was pursuant to this call—and a woman’s cries he claims to have heard—that Officer Hoover drove to the 400 block of Sunflower Lane and knocked on the door of house number 463. Perhaps, but for that call and the alleged cries, Officer Hoover would have had no reason to walk onto the property, knock on the door, announce his presence as a police officer, and command the occupants out of the house and onto the ground. But whether Officer Hoover’s voice commands 5 constituted a seizure—separate from the Sudafed Arrest—for purposes of the Fourth Amendment is not a question properly before us. The district court found that “[t]he sole issue remaining in this case is whether Officer Lloyd Hoover had probable cause to arrest Mr. Carr for possession of a controlled substance.” Carr v. Hoover, No. 4:16CV88-MPM-DAS, 2018 WL 3636563 , 5 We note that it is well established that no matter how unwelcome, Florida v. Jardines, 569 U.S. 1 , 8 (2013), a police officer’s warrantless knock on the door does not on its own intrude on privacy expectations protected by the Fourth Amendment. See Kentucky v. King, 563 U.S. 452 , 469–70 (2011). 11 Case: 18-60603 Document: 00515658303 Page: 12 Date Filed: 12/02/2020 No. 18-60603 at *6 (N.D. Miss. July 31, 2018 ). Carr has not separately argued—neither before the district court nor on appeal—that Officer Hoover’s voice commands alone violated his Fourth Amendment rights. 6 By failing to raise these arguments, Carr has abandoned them. Yohey v. Collins, 985 F.2d 222 , 225 (5th Cir. 1993) (“Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.”); see Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744 , 748 (5th Cir. 1987) (“We will not raise and discuss legal issues that [the appellant] has failed to assert.”). The only issue before us is whether summary judgment was proper on the claim that Carr was “unlawfully arrested and searched without a warrant and probable cause,” as a result of Officer Hoover’s discovery of the Sudafed. There are no disputed issues of material fact precluding a finding, as a matter of law, that Officer Hoover acted constitutionally in effectuating the Sudafed Arrest. IV. Because we conclude that Carr’s arrest was not an unreasonable seizure under the Fourth Amendment, we AFFIRM the district court’s grant of summary judgment below. 6 To the extent Carr argues that Officer Hoover’s knock and subsequent commands were implicated in deciding whether Officer Hoover “had probable cause to arrest Mr. Carr for possession of a controlled substance,” id., we have fully addressed these arguments above. We concluded that Officer Hoover’s initial conduct at 463 Sunflower Lane was sufficiently attenuated from his discovery of the Sudafed so as to not have affected the constitutionality of the Sudafed Arrest. 12

2021-01-27 00:00:53.92476+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cr0030-665

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. Criminal Action No. 14-30-1 (BAH) FLORENCE BIKUNDI, Chief Judge Beryl A. Howell Defendant. MEMORANDUM AND ORDER Pending before the Court is defendant Florence Bikundi’s pro se Motion for Reconsideration of Compassionate Release Due to New Evidence (“Def.’s Mot.”), ECF No. 659. Defendant’s Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582 (c)(1)(A), ECF No. 653, was denied, on September 14, 2020, because defendant did not demonstrate that a reduction in her sentence was warranted upon consideration of the requisite factors in 18 U.S.C. § 3553 (a). Memorandum Opinion & Order (“Mem. & Order”) at 8, 11, ECF No. 658. Defendant now moves for reconsideration on two grounds: first, that the Court erred in determining that defendant made a misrepresentation in the request for sentence reduction form filed with the facility in which she is incarcerated and, second, that worsening COVID-19 conditions at her facility warrant compassionate release. Neither ground warrants reconsideration. In resolving motions for compassionate release under 18 U.S.C. § 3852 (c)(1)(A), the court may reduce a term of imprisonment only “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable,” id., and upon making two findings: first, that “extraordinary and compelling reasons warrant such a reduction,” id. § 3582(c)(1)(A)(i); and, second, “that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission,” id. § 3582(c)(1)(A)(ii). The applicable policy statement set out in 1 U.S.S.G. § 1B1.13, like the statutory requirements, provides that a reduction of a term of imprisonment may be warranted, “after considering the factors set forth in 18 U.S.C. § 3553 (a), to the extent that they are applicable,” id., and when “extraordinary and compelling reasons warrant the reduction,” U.S.S.G. § 1B1.13(1)(A). The policy statement also requires a determination that “the defendant is not a danger to the safety of any other person or the community.” U.S.S.G. § 1B1.13(2). The government conceded in its briefing on defendant’s motion for compassionate release that defendant’s medical condition presented an extraordinary and compelling reason for a reduction, but nonetheless no reduction was determined to be appropriate in light of the sentencing factors set forth in 18 U.S.C. § 3553 (a). Mem. & Order at 8-10. Thus, defendant’s motion for compassionate release was denied. Id. at 11 . As to defendant’s first argument for reconsideration, she contends that the government misstated, and the Court misinterpreted, what was written in the Request for Reduction In Sentence (“RIS”) form she completed and submitted to the Warden of the Federal Correctional Institution at Hazelton (“FCI Hazelton”), Def.’s Mot. at 5, and that the denial of her motion for compassionate release was in part predicated on this misstatement. Specifically, the RIS form poses the following four straight-forward questions under “1. Proposed Release Plan”: “Where will you reside and with whom?”; “How will you support yourself?”; “Where will you receive medical treatment?”; and “How will you pay for medical treatment?” Gov’t’s Opp’n to Def.’s Mot. for Compassionate Release, Ex. C at 3, ECF No. 656-3. In response to the second question—“[h]ow will you support yourself?”—defendant answered, “I am a [r]egistered nurse by profession with lots of experience. I also have a BA background from the University of Maryland, College Park. I have lots of family members as well (doctors, pharmacists, nurses, etc.).” Id. 2  Defendant says that her response to this question was not meant to indicate she planned to work as a nurse, but rather that she would, if released, be able to ensure that her medical needs were met. Def.’s Mot. at 4. She strains to read the second question as a “financial question” about “how inmates would pay for medical expenses if released from prison,” id., explaining that her response ‘was that [her] son and other family member had pledged to help [her] financially,” id. This is revisionist history. Defendant’s response clearly indicates that she would support herself as a registered nurse if she were released, and defendant is not licensed as a nurse in any jurisdiction. As the Court has previously noted, “lying about [her nursing credentials] is what resulted in her exclusion from participation in any federal health care program and thus underlies her conviction in this case.” Mem. & Order at 9 (citing United States v. Bikundi, Crim. Case No. 14-30 (BAH), 2016 WL 912169 , at *4 (D.D.C. Mar. 7, 2016)). Defendant made a similar argument regarding the government’s interpretation of this statement in her initial motion for compassionate release, which the Court rejected. Mem. & Order at 9 n.5. Defendant presents no compelling reason to doubt that she made a misrepresentation on the form, which the Court properly considered in considering the 18 U.S.C. § 3553 (a) factors. Second, defendant alleges that a failure to take appropriate precautions to prevent the spread of COVID-19 has led to worsening conditions and an increase in the number of COVID- 19 cases at FCI Hazelton, which puts her at greater risk. Def.’s Mot. at 5–7. According to defendant, inmates have not recently been provided with hand sanitizer, soap, or new masks, and that weekly temperature checks were stopped. Id. at 7 . She further alleges that many of the guards do not wear masks. Id. Defendant believes that she is at heightened risk from the virus because she “experienc[ing] rapid heart palpitations.” Id. at 8 . The government responds by emphasizing the steps taken by the Warden at FCI Hazelton to help ensure inmate safety, 3 including suspension of out-of-cell time, as well as “mandatory screening and temperature checks for any inmate released from a housing unit[] and ordered meals to be served in the housing units.” Gov’t’s Opp’n to Def.’s Mot. for Reconsideration (“Gov’t’s Opp’n”) at 6-7, ECF No. 662. The government indicates that as of December 18, 2020, 24 inmates (out of over 1600) and 5 staff members had tested positive for COVID-19 at FCI Hazelton, Gov’t’s Opp’n at 7, though the website cited by the government now states that 162 inmates and 70 staff have tested positive for the virus to date, COVID-19 Cases, Federal Bureau of Prisons, http://www.bop.gov/coronavirus/ (last visited Jan. 22, 2021). The Court does not take the risks posed by COVID-19 lightly, and the rising number of COVID-19 cases at FCI Hazelton is troubling and may indicate, as defendant suggests, lax enforcement of safety protocols to reduce the risk of viral transmission. Even assuming that worsening conditions at FCI Hazelton present a heightened risk to defendant, however, compassionate release would not be warranted. The § 3553(a) sentencing factors weigh heavily against a reduced sentence given defendant’s role as “‘the prime moving force behind’ a fraud that bilked the District of Columbia’s Medicaid program out of over $80 million.” Mem. & Order at 8 (quoting Sentencing Hr’g Tr. at 168:22–23, ECF No. 563). Furthermore, “defendant was already given a significant departure from her guidelines-recommended sentence of 360 months to life imprisonment.” Id. at 9. Reducing her already heavily-reduced sentence further “would not adequately reflect the seriousness of defendant’s crime.” Id.; see also 18 U.S.C. § 3553 (a)(2)(A). Defendant has not introduced any new evidence demonstrating that a reduction in her sentence to a comparatively short period of home confinement is warranted upon consideration of the factors in 18 U.S.C. § 3553 (a) and U.S.S.G. § 1B1.13. Accordingly, it is hereby 4  ORDERED that defendant’s Motion for Reconsideration of Compassionate Release Due to New Evidence, ECF No. 659, is DENIED. SO ORDERED. Date: January 25, 2021 __________________________ BERYL A. HOWELL Chief Judge 5

2021-01-27 00:08:05.013442+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343609

01/26/2021 DA 20-0247 Case Number: DA 20-0247 IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 14 The MONTANA INDEPENDENT LIVING PROJECT, INC., a Montana Non-Profit Corporation, Plaintiff and Appellant, v. The CITY OF HELENA, and JOHN DOES I-XXX, Defendant and Appellee. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2016-484 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael C. Doggett, Doggett Law Offices, Missoula, Montana For Appellee: Murry Warhank, Erin Lyndes, Jackson, Murdo & Grant, P.C., Helena, Montana Thomas J. Jodoin, City Attorney, Iryna O’Connor, Deputy City Attorney, Helena, Montana Submitted on Briefs: December 9, 2020 Decided: January 26, 2021 Filed: Vir-641.-if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court. ¶1 The Montana Independent Living Project, Inc. (“MILP”) appeals the First Judicial District Court’s dismissal of its claim that the City of Helena retaliated against it when the City lowered the priority of MILP’s request for funding as a direct result of an unrelated discrimination complaint MILP had filed against the City. The District Court concluded that § 49-2-301, MCA, does not provide a cause of action to non-human entities and dismissed MILP as a plaintiff for lack of standing. We affirm. FACTUAL AND PROCEDURAL BACKGROUND1 ¶2 MILP is a state- and federal-funded non-profit corporation and center for independent living that advocates for people with disabilities in Montana. MILP requested funds from the City in 2014 to purchase a van to transport people with disabilities when City services were not available. The Helena Area Transportation Advisory Committee (“HATAC”), an informal committee of stakeholders that provides non-binding recommendations regarding transportation services to the City, advised the City that it ranked MILP’s request as its first priority for funding. ¶3 On February 17, 2015, MILP and its Chief Executive Officer Robert Maffit filed a complaint (“Initial Complaint”) with the Montana Human Rights Bureau (“HRB”) alleging the City’s public transit system had discriminated against people with disabilities by segregating them from others in a new series of bus routes. In a subsequent meeting to 1 Because this case was dismissed pursuant to M. R. Civ. P. 12(b)(6), we draw on the facts alleged in MILP’s complaint, which we take as true on consideration of its appeal. See Hein v. Sott, 2015 MT 196 , ¶ 7, 380 Mont. 85 , 353 P.3d 494 . 2 establish the City’s Transit Development Plan, the City Commission ranked a fixed-route bus line project ahead of MILP’s van request, departing from its typical practice of following the HATAC’s recommendations. Despite the subordinate ranking, the Montana Department of Transportation funded MILP’s request. MILP then voluntarily dismissed its Initial Complaint and filed a new complaint with the HRB. The new complaint (“Retaliation Complaint”) alleged that the City violated § 49-2-301, MCA, when, as a direct consequence of MILP’s Initial Complaint, it retaliated against MILP by not prioritizing its request for funding. ¶4 As part of its own investigation, MILP filed an open records request with the City, resulting in the discovery of e-mails and other communications it alleges show animus and discriminatory behavior toward MILP and Maffit. MILP claims “[t]he e-mails and the City’s other actions showed that the City engaged in a coordinated effort to discredit MILP and the HATAC.” The HRB in its decision, however, found no reasonable cause to believe the City had retaliated against either MILP or Maffit. The HRB further concluded that, as a corporation, MILP did not have standing to file a retaliation complaint under § 49-2-301, MCA. ¶5 MILP and Maffit then brought an action in the District Court. The amended complaint alleged retaliation and sought a judicial determination that the HRB’s decision was unlawful, incorrect, and an abuse of discretion. MILP moved for partial summary judgment regarding non-human entities’ ability to file retaliation complaints under the Montana Human Rights Act (“MHRA”). The City moved to dismiss MILP as a plaintiff and the retaliation count for failure to state a claim. The District Court granted the City’s 3 motion to dismiss on November 18, 2019; it concluded that § 49-2-301, MCA, does not allow non-human entities to sue for retaliation and MILP thus had no standing. ¶6 MILP petitioned this Court for supervisory control of the District Court’s ruling, which we denied. See Maffit v. Mont. First Judicial Dist. Ct., OP 20-0201, 400 Mont. 556 (Apr. 14, 2020). Maffit then voluntarily dismissed his complaint, and the District Court issued its final Judgment. MILP appeals. STANDARD OF REVIEW ¶7 “We review de novo a district court’s ruling on a M. R. Civ. P. 12(b)(6) motion to dismiss.” Hein v. Sott, 2015 MT 196 , ¶ 7, 380 Mont. 85 , 353 P.3d 494 (citation omitted). “The correct interpretation of a statute is a question of law that we review de novo.” Bates v. Neva, 2014 MT 336 , ¶ 9, 377 Mont. 350 , 339 P.3d 1265 (citation omitted). DISCUSSION ¶8 May a non-human entity file a complaint for retaliation under the Montana Human Rights Act, § 49-2-301, MCA? ¶9 The MHRA provides broad protection from discrimination. Bates, ¶ 26. The MHRA includes retaliation against an individual as a prohibited discriminatory practice: It is an unlawful discriminatory practice for a person, educational institution, financial institution, or governmental entity or agency to discharge, expel, blacklist, or otherwise discriminate against an individual because the individual has opposed any practices forbidden under this chapter or because the individual has filed a complaint, testified, assisted, or participated in any manner in an investigation or proceeding under this chapter. Section 49-2-301, MCA. “Person” is defined broadly to include “one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated employees’ associations, 4 employers, employment agencies, organizations, or labor organizations.” Section 49-2-101(18), MCA. The MHRA does not define “individual.” ¶10 The District Court concluded that § 49-2-301, MCA, does not provide standing to non-human entities to file retaliation claims because the legislature explicitly chose to use the word “individual” instead of “person” in that provision. It disagreed with MILP that this interpretation would lead to an absurd result because “[i]t is consistent with the traditional notion of standing. That is, while an advocacy group may file a discrimination claim on behalf of an individual or persons, an individual, not an organization, must show that illegal retaliation is directed at that individual complainant.” MILP argues that the District Court’s conclusion is erroneous because it does not comport with the MHRA’s broad purpose and legislative history or with federal authority that supports a broad implied right of action for retaliation. ¶11 When engaging in the construction of a statute, we look first to its plain language. Gannett Satellite Info. Network, Inc. v. State, 2009 MT 5 , ¶ 20, 348 Mont. 333 , 201 P.3d 132 (citations omitted). Language that is clear and unambiguous, using words’ plain and ordinary meanings, requires no further interpretation. Gannett, ¶ 20 (citation omitted); Bates, ¶ 15 (citation omitted). Our role is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted.” Section 1-2-101, MCA. We also construe statutory language as a whole and in light of its surrounding sections to avoid conflicting interpretations. Mont. Sports Shooting Ass’n v. State, 2008 MT 190 , ¶ 11, 344 Mont. 1 , 185 P.3d 1003 (citations omitted). We avoid constructions “that render[] any section of the statute 5 superfluous or fail[] to give effect to all of the words used.” Gannett, ¶ 19; § 1-2-101, MCA (“Where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.”). ¶12 The plain language of § 49-2-301, MCA, clearly and unambiguously prohibits a “person” from retaliating against an “individual” because “the individual has opposed any practices forbidden under this chapter or because the individual has” participated in a human rights matter. (Emphasis added.) By using both “person” and “individual,” this provision draws a distinction between the class of actors that potentially could retaliate— any “person”—and the class of discrimination victims against whom retaliation is prohibited—any “individual.” See § 1-2-101, MCA; see also, e.g., Zinvest, LLC v. Gunnersfield Enters., 2017 MT 284 , ¶ 26, 389 Mont. 334 , 405 P.3d 1270 (quoting Gregg v. Whitefish City Council, 2004 MT 262 , ¶ 38, 323 Mont. 109 , 99 P.3d 151 ) (“Different language is to be given different construction.”); accord Densley v. Dep’t of Ret. Sys., 162 Wash. 2d 210 , 219, 173 P.3d 885 , 889 (2007) (citations omitted) (“When the legislature uses two different terms in the same statute, courts presume the legislature intends the terms to have different meanings.”). Because “person” includes both “individuals” and non-human entities under the MHRA, § 49-2-101(18), MCA, a construction that included non-human entities in a definition of “individual” would be redundant and impermissibly render that term superfluous. Bates, ¶ 18; see Formicove, Inc. v. Burlington N., Inc., 207 Mont. 189 , 194, 673 P.2d 469 , 471 (1983) (citation omitted) (“We must assume that the legislature does not perform idle acts.”). Applying the MHRA’s explicit definition to the plain language of the retaliation statute, the term “individual” 6 undoubtedly has a different and more limited meaning than the term “person.” Giving effect to all of the statute’s words, we conclude that the more limited meaning clearly and unambiguously excludes non-human entities. ¶13 MILP argues that because § 49-2-501(1), MCA, allows a “person” aggrieved by a discriminatory practice to file a complaint under the MHRA, use of the word “individual” in § 49-2-301, MCA, is irrelevant. But MILP misreads the operative language of § 49-2-501(1), MCA. Title 49, Chapter 2, Part 5, MCA, provides the “Enforcement” mechanisms for illegal discrimination: “[a] person claiming to be aggrieved by any discriminatory practice prohibited by this chapter may file a complaint with the department.” Section 49-2-501(1), MCA (emphasis added). The provision allows a “person” to file a complaint, but only if the person suffers a “Prohibited Discriminatory Practice[]” as defined by Part 3 of the MHRA. Included among such prohibited practices, § 49-2-301, MCA, proscribes retaliation against “an individual.” That individual is the person “aggrieved” by the alleged discriminatory practice. Stated otherwise, the law makes retaliation a prohibited practice only when the retaliation is directed at an individual. We thus find MILP’s argument unpersuasive. ¶14 MILP additionally contends that federal authority supports an implied right of action for non-human entities to file retaliation claims if § 49-2-301, MCA, does not. Because § 49-2-301, MCA, clearly and unambiguously prohibits claims by non-human entities, any implied cause of action would be inconsistent with the statute. See Lyman Creek, LLC v. City of Bozeman, 2019 MT 243 , ¶¶ 17-18, 397 Mont. 365 , 450 P.3d 872 (citations omitted). We need not address MILP’s additional arguments regarding the legislative history of the 7 MHRA or other federal authority interpreting the word “individual.” Gannett, ¶ 20; State v. Strong, 2015 MT 251 , ¶ 13, 380 Mont. 471 , 356 P.3d 1078 (when the plain language of a statute is clear and unambiguous, we need not engage in further construction).2 ¶15 We will construe the MHRA in favor of the Act’s broad “intended protection” against discrimination if the provision at issue is “susceptible to more than one plausible construction.” Bates, ¶ 26. Here, however, the statutes are clear and unambiguous. We conclude that the plain language of § 49-2-301, MCA, does not permit non-human entities to file retaliation claims under the Montana Human Rights Act. MILP’s request for attorneys’ fees under the private attorney general doctrine likewise thus fails. See Faust v. Util. Sols., LLC, 2007 MT 326 , ¶ 18, 340 Mont. 183 , 173 P.3d 1183 (citations omitted) (noting that a party “must succeed in some measure in the underlying controversy in order to obtain attorney fees pursuant to the private attorney general doctrine”). CONCLUSION ¶16 The District Court was correct when it held that § 49-2-301, MCA, does not allow non-human entities to file retaliation claims under the Montana Human Rights Act. The plain language of the statute allows only an “individual,” a natural human person, to seek 2 MILP contends that the related administrative rule and the HRB’s application and enforcement of it also support MILP’s interpretation of the statute. See Admin. R. M. 24.9.603(1) (2017) (“It is unlawful to retaliate against or otherwise discriminate against a person because the person engages in protected activity.”) (emphasis added). MILP raises this argument for the first time on appeal, and we thus decline to address it. See Mont. Prof’l Sports, LLC v. Nat’l Indoor Football League, LLC, 2008 MT 98 , ¶ 53, 342 Mont. 292 , 180 P.3d 1142 . An agency in any event may not “engraft additional and contradictory requirements on the statute.” Gold Creek Cellular of Mont. LP v. State, 2013 MT 273 , ¶ 12, 372 Mont. 71 , 310 P.3d 533 (citation omitted). 8 redress for retaliation. We accordingly affirm the District Court’s order dismissing MILP as a plaintiff. /S/ BETH BAKER We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR Justice Ingrid Gustafson, concurring. ¶17 I reluctantly concur with the Opinion’s interpretation of § 49-2-301, MCA, in light of the definition of “person” contained in § 49-2-101(18), MCA, and the MHRA’s failure to define “individual.” Despite the plain and unambiguous language defining retaliation as a discriminatory practice against an “individual” as opposed to a “person,” in the context of the MHRA’s purpose and other provisions within the MHRA, I am not necessarily convinced the Legislature intended this result. It appears fundamentally unfair and at odds with the MHRA’s broad purpose and legislative history of preventing discrimination to foreclose an action if a government agency were to withhold funding from an advocacy group in retaliation for its advocacy for a protected class of individuals. ¶18 The broad purpose of MHRA is to prevent discrimination and retaliation for engaging in investigation or protected activities. The MHRA defines prohibited discriminatory practices to include retaliation (§ 49-2-301, MCA); aiding, coercing, or attempting discrimination (§ 49-2-302, MCA); discrimination in employment (§ 49-2-303, 9 MCA); discrimination in public accommodations (§ 49-2-304, MCA); discrimination in housing (§ 49-2-305, MCA), discrimination in financing and credit transactions (§ 49-2-306, MCA); discrimination in education (§ 49-2-307, MCA); discrimination by the state (§ 49-2-308, MCA); discrimination in insurance and retirement plans (§ 49-2-309, MCA), and discrimination based on maternity and pregnancy-related leave (§§ 49-2-310 and -311, MCA). Pursuant to § 46-2-101(2), MCA, an “aggrieved party” is “a person . . . who has been or is likely to be specially and injuriously affected by a violation of this chapter.” “A person claiming to be aggrieved by any discriminatory practice prohibited by this chapter may file a complaint with the department.” Section 49-2-501(1), MCA, (emphasis added). Section 49-2-501, MCA, does not preclude a “person” from filing a complaint asserting retaliation as discriminatory practices. Retaliation is a discriminatory practice prohibited by the MHRA. Section 49-2-301, MCA. MILP is clearly a “person” pursuant to § 49-2-101(18), MCA, asserting to be aggrieved by a prohibited discriminatory practice of the MHRA. At best, it seems incongruous to permit an advocacy group such as MILP to file a complaint alleging retaliation, but then define retaliation as being only available to “individuals” rather than “persons,” such that despite being permitted to file the claim, the claim cannot survive judgment on the pleadings. But, based on the clear and unambiguous language of §§ 49-2-101(18) and -301, MCA, that is precisely what the Legislature did. I seriously question whether the Legislature truly intended advocacy groups and other “persons” to be subject to retaliation for engaging in advocacy for a protected class of individuals with no recourse. 10 ¶19 Further, § 49-2-501(2), MCA, permits an advocacy group to file a complaint on behalf of another person, charging any unlawful discrimination under the MHRA. If an advocacy group does so, the advocacy group could then be retaliated against for its advocacy of the aggrieved person and could use evidence of the retaliation to prove the discrimination claim. See Mahan v. Farmers Union Cent. Exch., 235 Mont. 410 , 422, 768 P.2d 850 , 858 (1989) (discussing the interplay between retaliation and discrimination under the statute and explaining: “Under the [MHRA], acts of retaliation for participating in proceedings before the Human Rights Commission are discrimination actions separate and apart from the claim of discrimination in the original proceedings. It might possibly be considered evidence of bad faith in the original termination of employment as well as in the retaliation.”). The advocacy group, however, would then be precluded from bringing a stand-alone retaliation claim. Given the broad purpose of the MHRA and its other statutory provisions, this appears to be a legislative oversight, which has inadvertently been created by piecemeal modifications made in the MHRA over time. /S/ INGRID GUSTAFSON Justice Dirk Sandefur joins the Concurrence of Justice Gustafson. /S/ DIRK M. SANDEFUR 11

2020-01-17 22:02:01.297363+00

Sternhagen

*419OPINION. Sternhagen : Each of these seven petitioners is a child or grandchild of Wellington E. Burt, deceased, and since the deficiencies assailed are similar in theory and are attacked upon the same propositions of law, they have been presented and will be decided together. The facts have been embodied in a written stipulation. The first issue is in its nature similar to that in many proceedings which have been presented to the Board for decision. It is founded upon the theory adopted by respondent that one who, having a right or interest in future income upon which tax would be assessed to him when received or accrued, transfers voluntarily as by contract such right or interest to another who is to receive the income directly, is thereafter nevertheless taxable as if the income had come or accrued to him before going to his transferee.1 *420The facts submitted in evidence, however, do not disclose any transfer by petitioners of a right to receive income or interest in specific income. The first agreement of March 15, 1919, with the attorney obligated'petitioner to pay to him, “a sum equivalent to 10% of the full amount or value actually received.” Clearly this contemplated two separate events — first, the receipt' of all income by petitioners, and, second, the payment by petitioners of a sum equal in amount to 10 per cent of such receipt. Thus, the attorney held a contractual right against petitioners, measured by, but separate from, petitioners’ receipts, the receipts being clearly the rightful property of petitioners in the full amount. The supplemental agreement of October 3, 1919, likewise contemplates receipt of the entire income by petitioners and then payment by them of 10 per cent “ of the amounts of money received.” Thus, the two separate Legal situations were preserved, and petitioners retained after these contracts all the rights acquired by the will and the settlement agreement. The next fact stipulated is that of payment of specified amounts by the Bank to the attorneys. The evidence does not contain any intervening fact, and if there was a standing order by petitioner upon the Bank, as suggested, it has not been stipulated or offered in evidence. Thus, much of the argument as to anticipatory assignment has no foundation in the facts of the record. But we do not rest our decision on that ground alone. The argument presented is predicated upon the fact that petitioners did not receive the percentage of royalties, and the assumption that the attorney, by right, actually received them from the bank. The question argued is whether such amounts were income of petitioners and taxable to them, as determined by respondent. If petitioners received the entire royalties and made no anticipatory disposition of them, the full amount was returnable by them as gross income, regardless of whether they were derived by reason of the original will or as modified by the settlement agreement, or by the settlement agreement separately, or by intestate succession because of the invalidity of the will. For mineral royalties are income under the statute, section 213, and by judicial authority, Von Baumbach v. Sargent Land Co., 242 U. S. 503; United States v. Biwabak Mining Co., 247 U. S. 116; Henry L. Berg, 6 B. T. A. 1287, aff'd. D. C. App., June 3, 1929; C. E. Van Devender, 8 B. T. A. 697, and are no less so because derived through bequest or inheritance, and have an anticipatory value at the time the right to receive them vests. Irwin v. Gavit, 268 U. S. 161; George D. Widener et al., 8 B. T. A. 651. In determining whether such an amount received is within gross iiicome, it is not important what disposition is made of it when *421received. Arthur C. Levering, 5 B. T. A. 616. The coining in of gross income under section 213 must be kept separate from its use or disposition. Such disposition or outgo is significant under the statute only in so far as it may be one of the enumerated deductions permitted under section 214, in order to arrive at net income. Congress has not left it to the taxpayer to elect whether he will arrive at his taxable net income by exclusions from his gross or by deductions, but has expressly required him to use an all-embracing gross from which he may subtract the prescribed items of deduction. Thus the petitioners, if they in fact received the entire royalties, were required to include them in gross, irrespective of whether they kept them intact, invested them, or spent them for legal services or otherwise. The question of deduction requires an entirely separate inquiry, for not all outgo is deductible, vide section 215, and some deductions such as obsolescence are allowed with no present expenditure. It is of substantial importance that this statutory scheme for arriving at taxable income should be respected, because it has its reason in the necessity for maintaining uniformity of taxation throughout an infinite variety of circumstances. Congress by section 213 intended to use its power to the full extent, Eisner v. Macomber, 252 U. S. 189; Irwin v. Gavit, 268 U. S. 161, and the practical necessity of preserving a broad construction so as to avoid continuous controversy as to mere terms or method is manifest. In the present case petitioners insist not only that the error lies in an overtax of net income, but that this results specifically from an overstatement of gross, and hence it is pertinent that under the plan of the statute the use to be made of the income is not germane at this stage of the inquiry. If petitioners received the entire royalties, it was no less income because it came as the result of suit and settlement involving legal services for which petitioners were obligated to pay upon bill rendered pursuant to a contract. And the fact that the contract measured the compensation at an amount equivalent to 10 per cent of any amount received -would no more remove the royalties from petitioners’ gross income than a contractual obligation to pay for any other kind of service or goods. Clearly, the use of the royalties as a measure of petitioners’ voluntary obligations, whether to lawyers, doctors, servants, or shopkeepers, is consistent with their inclusion in taxable income, as they normally are. To say that the existence of this obligation justifies an omission to return the full royalties as gross income seems to us to be patently destructive of the statutory system of determining taxable income. And the situation is not changed by the supplemental agreement which requires payment out of the royalties when received. *422From the facts stipulated it appears that the Bank, which as executor and trustee received the royalties in the first instance, paid to the attorneys certain amounts. The stipulated facts do not contain the authorization upon which the Bank made these payments, since the book in which an alleged order is- printed was expressly made evidence of only certain other documents between its covers. There would be no justification for assuming that the petitioners had any greater obligations than those created by the employment agreements of March 15, 1919, and October 3, 1919, and we must assume that the payments by the Bank were only in discharge of such obligations and were made with the approval and for the convenience of petitioners. Such a short cut does not of itself reduce petitioners’ income. Old Colony Trust Co. v. Commissioner, 279 U. S. 716; United States v. Boston & Maine R. R. Co., 279 U. S. 732; Julius Rosenwald, 33 Fed. (2d) 423; Alfred LeBlanc, 7 B. T. A. 256. Counsel for the petitioners, notwithstanding the limitations of the stipulation of facts, point in argument to a form of order given by one of the petitioners to the bank dated July 9, 1920, as indicating an irrevocable assignment to the attorneys. This order “ authorizes and directs” the bank to pay to the attorneys “10 per cent of the amounts of money which are now or may hereafter become payable ” to petitioner under the compromise agreement. “ It is understood that this order and authority * * * is given for the purpose of facilitating the execution of the agreements ” of employment of March 15, 1919, and October 3, 1919. “ This order and authority is not to be construed as in any way modifying or changing said agreements.” On July 30, 1920, this petitioner seems to have signed an instrument by which, “for the considerations stated in the above described Order, and for the purpose of expressing more clearly the intention of the parties thereto, it is agreed by said [petitioner] as an amendment to and part of said Order that the same is intended to be and is irrevocable.” Arguing from such order as if it were in evidence, counsel urge that thus petitioners made an irrevocable assignment to the attorneys which destroyed their right to receive the 10 per cent in question and thus prevented the percentage amounts from ever becoming their income. But the instrument is not an assignment in terms and there is no evidence of an intention so' to regard it. It was not made until long after the employment agreement, and it is unnecessary to consider whether the supplemental statement purporting to make the order irrevocable has any force. It is not like the assignment in O'Malley-Keyes v. Eaton, 24 Fed. (2d) 436, and Young v. Gnichtel, 28 Fed. (2d) 789, upon which peti*423tioners’ counsel rely. Nor does it go so far in its legal effect as the instrument in Marshall Field, 15 B. T. A. 718. The case of American Cemetery Co. v. United States, 28 Fed. (2d) 918, cited by petitioners, clearly holds that an item, although it may support a deduction, is not to be excluded from gross income. The logical extent of petitioners’ view is denoted by the list of cases already cited. It would imply an intendment that the tax was to be based on amounts only actually received, without regard to the taxpayer’s volition or control as to amounts not received. In the present state of the law there is no unmistakable earmark of income. The Sixteenth Amendment suggests none, and the statutory subject of the tax is equally broad, enumerating the exceptions with particularity, Revenue Act of 1918, sections 212 and 213. Actual receipt is nowhere used in the statute to limit the faculty upon which the tax is levied, and the word derived which is found in the statutes and decisions clearly carries a broader connotation. The Supreme Court in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, and United States v. Boston & Maine R. R. Co., 279 U. S. 732, sustained a tax on amounts attributed to a taxpayer, although he did not receive them, and this decision followed eleven years after the court’s denial of certiorari (246 U. S. 671) of a similar ruling in Rensselaer & S. R. Co. v. Irwin, 247 Fed. 726, and was predicated upon a consistent administration practice. Nor is it necessary to look to an accounting method based, under section 212, upon a system of accruals, because without that, the doctrine of constructive receipt has long been recognized under compelling circumstances and within reasonable limits. John A. Brander, 3 B. T. A. 231. The right in the taxpayer to receive the income at the time it is attributed and taxed to him is likewise not essential, where, as in the Old Colony, Boston & Maine, and Rensselaer and Rosenwald cases, sufra, the taxpayer has by his own volition chosen to dispose of the right to receive income while retaining that from which the income is derived. The volition in disposing of the right is important, for while all will agree that one who never received or had a right to receive or who has involuntarily lost it should not be taxed, it is also plain that his voluntary exercise of the right to dispose of the income before receipt may be just as valuable and important practically as its exercise after receipt. There is no reasonable ground for supposing that Congress intended, by the broad language used, to tax the one and relieve the other. The ability to pay in the case at bar is equally great whether the petitioner received the entire royalties and then paid the lawyer or told the Bank to pay the lawyer directly out of the royalties. *424It is not necessary to consider a question sometimes suggested growing out of an asserted distinction between an assignment of an interest in the principal property or fund and a creation or transfer of a right to receive the income. There is in this record no evidence of an express assignment,' and no authority is cited for one by construction. We are of opinion that the amounts paid by the Bank to the attorney as stipulated were part of the gross income of petitioners. Failing in their-contention that the amounts paid to the attorneys are not within their gross income, petitioners fall back upon the view that the amounts are to be allowed as deductions under section 214, the effect of which upon their net income and consequent tax liability is the same. The petitioners, except one, do not disclose into which category or subsection of deductions the payments fall. The statute enumerates the allowable deductions, and it is necessary in any case to bring the item within the language and intendment of one or more of the enumerated classes. While judicial construction may be applied to any of the statutory deductions so as to resolve ambiguity or enforce its true intendment, it can not serve to create a new class or to recognize vaguely an omnibus group of deductions not otherwise specified. This would be clear legislation and beyond the power of the Board or the courts. In behalf of one of the petitioners it is urged in brief that the payments to the attorneys were “ expenses necessarily incurred in the acquisition of the royalty income ” and deductible as such “ in the absence of some special or peculiar circumstances.” But we may not take our eye from the statute and permit the issue to be thus artificially framed in more general or liberal terms. The nearest statutory deduction, and the only one within focus is that of sectior 214(a) (1), Revenue Act of 1918: Sec. 214. (a) That in computing net income there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; and including rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not talren or is not taking title or in which he has no equity. and section 214(a)(2), Revenue Act of 1921, which, for present purposes is similar. This section applies to individual taxpayers, whose income, whether from business or otherwise, is all included for taxation under section 213, and whose personal, living and family expenses are, by section 215, denied deduction. It is carefully drafted. Some of its *425subdivisions are broad and others more restricted. The restriction that some of the items must relate to a trade or business has been discriminatingly used. It applies to (1) expenses, (4) losses generally, and (8) depreciation. It is expressly negatived as to the losses of subdivisions (5) and (6).. And it is omitted from subdivisions (2), (3), and (7) as to interest, taxes and worthless debts. The restriction may not therefore be disregarded or treated lightly. Unless an item, even although it be properly called an expense, is paid or incurred “ in carrying on any trade or business,” this subdivision can not be invoked. The payment by an individual for legal services is not necessarily a deductible expense. Helen S. Pennell Estate, 4 B. T. A. 1039. How can it be said that these petitioners were carrying on a trade or business? They were the passive recipients of royalties which inured to them by reason of their ancestor’s will and the court’s decree. They carried on no activity in which they were employed and there was nothing to “ occupy their time, labor or attention for the purpose of livelihood or profit,” as the term “ business ” has been sometimes broadly defined. Bouvier’s Law Dictionary, Flint v. Stone Tracy Co., 220 U. S. 107. See also Charles L. Suhr, 4 B. T. A. 1198; Albert M. Briggs, 7 B. T. A. 409; Ignaz Schwinn, 9 B. T. A. 1304; B. H. Kizer, 13 B. T. A. 395. It is not enough to say that by virtue of their contract with the attorneys this percentage was a “ charge against the income when derived,” because, while such charges may be treated as deductible expenses if incident to a trade or business, as in La Monte v. Commissioner, 32 Fed. (2d) 220, American Cemetery Co. v. United States, 28 Fed. (2d) 918, the statutory language expressly restricts the charge to that of trade or business. This also distinguishes Kornhauser v. United States, 276 U. S. 145, in which the attorneys’ fees were incurred as an incident of litigation of an undisputed business. We are therefore of opinion that the respondent correctly included the attorneys’ fees in petitioners’ gross income and made no deduction in respect thereof. Since this is the only error assigned or otherwise pleaded in Dockets Nos. 18714 and 18824, those proceedings are completely disposed of. Some of the petitioners by amended petitions contend that the deficiencies should be reduced by allowing to each petitioner a deduction of a proper part of the inheritance and estate taxes paid by the estate of Wellington R. Burt, deceased, in the amounts and in the years set forth in the findings of fact. This issue is not pleaded in Docket No. 18714 or Docket No. 18824, and, therefore, as to those petitioners the issue is given no consideration. *426This issue is entirely predicated on section 703, Revenue Act of 1928, which was enacted after this proceeding was instituted, but by its terms is made retroactive and is therefore properly invoked. Since the contention was not available to the petitioners prior to the filing of the petition it was not presented to the Commissioner for his consideration, and as no brief or argument has been submitted by respondent on this issue, the Board is without information as to the Government’s administrative interpretation of this new statutory provision. Regulations 74 merely repeat the statute without elucidation. Its language is as follows: SEC. 703. DEDUCTION OF ESTATE AND INHERITANCE TAXES — RETROACTIVE (a) In determining the net income of an heir, devisee, legatee, distributee, or beneficiary (hereinafter in this section referred to as “beneficiary”) or of an estate for any taxable year, under the Revenue Act of 1926 or any prior revenue Act, the amount of estate, inheritance, legacy, or succession taxes paid or accrued within such taxable year shall be allowed as a deduction as follows: (1) If the deduction has been claimed by the estate, but not by the beneficiary, it shall be allowed to the estate ; (2) If the deduction has been claimed by the beneficiary, but not by the estate, it shall be allowed to the beneficiary; (3) If the deduction has been claimed by the estate and also by the beneficiary, it shall be allowed to the estate (and not to the beneficiary) if the tax was actually paid by the legal representative of the estate to the taxing authorities of the jurisdiction imposing the tax; and it shall be allowed to the beneficiary (and not to the estate) if the tax was actually paid by the beneficiary to such taxing authorities; (4) If the deduction has not been claimed by the estate nor by the beneficiary, it shall be allowed as a deduction only to the person (either the estate or the beneficiary) by whom the tax was paid to such taxing authorities, and only if a claim for refund or credit is filed within the period of limitation properly applicable thereto; (5) Notwithstanding the-provisions of paragraphs (1), (2), (3), and (4) of this subsection, if the claim of the deduction by the estate is barred by the statute of limitations, but such claim by the beneficiary is not so barred, the deduction shall be allowed to the beneficiary, and if such claim by the beneficiary is barred by the statute of limitations, but such claim by the estate is not bo barred, the deduction shall be allowed to the estate. (b) As used in this section, the term “ claimed ” means claimed— (1) In the return; or (2) In a claim in abatement filed in respect of an assessment made on or before June 2, 1924. (c) This section shall not affect any case in which a decision of the Board of Tax Appeals or any court has been rendered prior to the enactment of this Act, whether or not such decision has become final. As the provision was originally introduced in the House bill it contained no such matter as that of subsection (a) (5) and subsection (b). It provided only for deductions “ claimed in the return.” The report of the House Committee on Ways and Means in respect of this section was as follows: *427SEC. 7 0C. DEDUCTION OK ESTATE AND INHERITANCE TAXES-RETROACTIVE. Section 214(a) (3) of the Revenue Act of 1926 and corresponding provisions of prior revenue Acts permit a deduction, from gross income in computing the net income subject to tax, for taxes paid or accrued during the taxable year. Obviously this provision applies only to taxes imposed upon the taxpayer, and does not permit the deduction of taxes paid by a volunteer. Extraordinary difficulty has been encountered in applying this deduction in the case of estate, inheritance, legacy, and succession taxes, imposed by a State, Territory, or a foreign country. These taxes are usually paid by the executor of the estate. Under the regulations of the department the deduction was allowed the estate, in computing its income tax, if the tax was considered as an estate tax, and was allowed as a deduction to the beneficiary if the tax was considered to be an inheritance, legacy, or succession tax. As a result of recent Supreme Court decisions (Keith v. Johnson, and United States v. Mitchell), redeterminations of the deductions claimed by the estate by the beneficiary will be necessary unless the situation is remedied by retroactive legislation. Consequently your committee deems it advisable to insert section 705 in the bill, the general effect of which will be to ratify what the taxpayers have done and to prescribe specific rules for future action. The Senate on the floor struck out the requirement that the only cognizable claim for the deduction should be that made in the return and inserted (b) instead. It also added (a) (5). Thereafter the report of the Conference Committee of both Houses contained the following: Amendment No. 210: The House bill contained retroactive provisions removing the uncertainty of the present law as to the deductibility, in computing net income, of amounts paid as estate, inheritance, succession, or legacy taxes, and validated the deductions claimed in the return of the taxpayer, and provided for the case where the deduction was claimed by both the estate and the beneficiary and the case where neither claimed it. The Senate amendment adopts the provisions of the House bill and extends them to cases where the deduction was claimed by a claim in abatement, and in order to make it certain that the deduction will be allowed either to the estate or to the beneficiary in any event, the Senate amendment allows the deduction to the estate if the beneficiary is barred from filing a claim for refund by the statute of limitations, and vice versa. This provision does not permit the filing of a claim for refund, however, if the period of limitation has expired; and the House recedes. The bill was thereupon enacted containing the language as above quoted. Relying upon this provision, the petitioners contend that, since the deductions of both Federal estate and State inheritance taxes were properly available either to the estate or the beneficiary, but have since become barred to the estate, the situation is within the terms of subdivision (a) (5) of the statute so as to make the deduction now allowable to the petitioners as beneficiaries within the meaning of the statute. From the stipulation it appears that for the years 1920 and 1921 the estate filed returns and that no waivers in its behalf have since been filed. As to those years, therefore, any claim which the estate might have in respect of the allowance of *428this deduction would be barred by the statute, of limitations. Thus, by subsection (a) (5) the deductions for 1920 and 1921 should properly be allowed to petitioners in the proportionate amounts to which, under the stipulated facts, they are severally entitled. As to 1922 and 1928, however, it is stipulated that no returns were filed by the estate. Hence, the statutory period of limitations has never begun, and, consequently, has never expired and any claim of the estate is not barred. As to those years subsection (a) (5) can have no application. It is stipulated that the deduction has not been claimed either by the estate or the beneficiaries in the manner defined in subsection (b), except that the beneficiaries have claimed their proportionate deductions of the percentage of State inheritance taxes, which by their contract was properly chargeable against them. As to the remaining 60 per cent of inheritance taxes and the entire amount of Federal estate taxes for such years, no deduction has been claimed by either. Under such circumstances subsection (a) (4) is applicable, wherein it is provided that the deduction shall be allowed only to the person by whom the tax was paid to the taxing authorities. Since it is stipulated that these taxes have all been paid to the taxing authorities by the estate, it follows that there is no provision in section 708 or in any other section which has been called to our attention to authorize the allowance of the deduction to the beneficiaries. As to these years, therefore, the petitioners’ contention fails and the respondent is sustained. It has not been overlooked that the stipulation is ambiguous in respect of the year 1923. It provides in one place that claim for the deduction was made by the estate in its return and in another place expressly states that no return was filed. In this ambiguity of fact the Board is helpless and since the burden rests upon the petitioner the ambiguity must be resolved against it. As to the petitioner George E. Burt, Docket No. 19609, it is confessed by petitioner’s counsel in accordance with the stipulation that since his tax liability is determinable on the accrual basis, the principle applied in Ernest M. Bull, Executor, 7 B. T. A. 993, requires that the deduction be limited to the year 1919, in which the taxable testamentary transfer occurred. The record discloses no facts which would bring the year 1919 within the issues before the Board. The deficiency notice contains a determination of deficiencies for only 1921, 1922, and 1923 and a determination of no deficiency in respect of 1920. The year 1919 is not mentioned. No determination in this proceeding can, therefore, be made as to the year 1919 and it is clear that petitioner is entitled to no deduction in respect of the estate or inheritance taxes for any of the years properly before the Board. Eeviewed by the Board. Judgment urdí be entered under Rule 50. Louis Cohen, 5 B. T. A. 171; Samuel V. Woods, 5 B. T. A. 413; Hudson M. Knapp, 5 B. T. A. 762; Fred W. Warner, 5 B. T. A. 963; Alfred LeBlanc, 7 B. T. A. 256; Ella Daly King, Executrix. 10 B. T. A. 698; Arthur H. Van Brunt, 11 B. T. A. 406; George M. Cohan, 11 B. T. A. 743; M. C. Garber, 11 B. T. A. 979; Julius Rosenwald, 12 B. T. A. 350; Charles F. Colbert, Jr., 12 B. T. A. 565; T. B. Noble, 12 B. T. A. 1419; Florence V. Cruickshank, 13 B. T. A. 508; Maud Dunlap Shellabarger, 14 B. T. A. 695; J. V. Leydig, 15 B. T. A. 124; Marshall Field, 15 B. T. A. 718.

2020-12-03 01:00:14.142734+00

http://www.ca5.uscourts.gov/opinions/pub/19/19-11297-CR0.pdf

Case: 19-11297 Document: 00515658697 Page: 1 Date Filed: 12/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2020 No. 19-11297 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Ernesto Lee Cano, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-131-1 Before Higginbotham, Smith, and Dennis, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: Ernesto Lee Cano appeals the consecutive 24-month sentences he received for violating the terms of his supervised release. Cano contends that the district court imposed an unreasonable sentence by giving significant weight to an improper sentencing consideration and ignoring a mitigating fact. We affirm. I. In 2007, DEA agents discovered Cano unloading large amounts of marijuana from a tractor trailer in El Paso. Cano was charged with possession Case: 19-11297 Document: 00515658697 Page: 2 Date Filed: 12/02/2020 No. 19-11297 with intent to distribute more than 100 kilograms of marijuana and conspiracy to do the same. Although Cano was initially released on bond, his bond was later revoked when he failed to report to pretrial services or appear for trial. Cano resurfaced in March 2009, when he reportedly turned himself in after living in Northern Mexico. Upon his return, Cano pleaded guilty to the two counts in his indictment and was sentenced to 80 months’ imprisonment followed by four years of supervised release. Cano’s supervised release came with standard conditions including that Cano would “not leave the judicial district without permission of the court or purgation officer,” would “report to the Probation Officer . . . within the first five days of each month,” and would “notify the Probation Officer at least ten days prior to any change in residence or employment.” Cano began his supervised release in January 2014. In December 2014, Border Patrol detained Cano as he attempted to enter Mexico at Fabens, Texas. Cano’s probation officer, having been informed of this, instructed Cano to report immediately because he had not obtained permission to leave the jurisdiction. Cano did not report. Instead, he went again to Mexico, and by May 2015, he informed his probation officer that he was living in Chihuahua. Cano knew he was violating the terms of his release, but he advised that “he was in Mexico to assist his wife whose ex-husband was threatening to harm her due to a dispute regarding their children.” In April 2019, Cano contacted his parole officer to indicate that he would self- surrender after his wife gave birth to their daughter. Cano was arrested by U.S. Border Patrol on September 30, 2019, and on November 20, 2019, the U.S. Attorney for the Western District of Texas moved to revoke Cano’s supervised release. Cano appeared for his revocation hearing and admitted the allegations in the motion to revoke. The presentence report calculated Cano’s guideline range as 3-9 months for each count, based on his “C” grade violation of his 2 Case: 19-11297 Document: 00515658697 Page: 3 Date Filed: 12/02/2020 No. 19-11297 release and his criminal history of 1. Cano’s counsel sought the guideline- minimum three months for each count. Cano and his counsel explained that he had absconded to Mexico to support his family and prevent his sons from being recruited by drug cartels. Cano also noted that he had remained in contact with U.S. law enforcement while in Mexico and had voluntarily surrendered. The district court observed that Cano had previously absconded while out on bond and commented “so apparently you don’t have any regard for the laws of the United States.” Cano’s counsel then clarified that Cano had reportedly turned himself in on that occasion too. The district court determined that a 24-month sentence for each count—an upward departure from the guideline range—was necessary “for the objectives of sentencing as outlined in 18 United States Code Section 3553(a) to be satisfied in this case, as those objectives apply in a revocation context.” Cano appealed. He argues that the district court improperly considered the need to promote respect for the law in determining his sentence and ignored that Cano had previously self-surrendered. II. The applicable standard of review depends on whether Cano properly preserved the objections that form the basis for his appeal. If Cano preserved his objections, then our review is the two-step “plainly unreasonable inquiry,” in which we first ask whether the district court committed “significant procedural error, such as failing to consider the [applicable] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence,” and then assess “the substantive reasonableness of the sentence imposed under an abuse-of-discretion 3 Case: 19-11297 Document: 00515658697 Page: 4 Date Filed: 12/02/2020 No. 19-11297 standard.” 1 If Cano did not preserve his objections, our review is for plain error, and Cano “bears the burden to show (1) error (2) that is plain and (3) that affects his substantial rights.” 2 “A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” 3 At the revocation hearing, Cano’s counsel sought a 3-month sentence for each count and, after sentence was pronounced, counsel stated that Cano “would object to the sentence as procedurally and substantively unreasonable.” Thus, Cano preserved his substantive-reasonableness objection. 4 Cano also arguably preserved his objection to the court’s refusal to consider his prior self-surrender when determining the appropriate sentence. 5 We will assume, without deciding, that he did. But Cano did not object to the district court’s reliance on an improper sentencing consideration—promoting respect for the law. We review this objection for plain error. 6 1 United States v. Sanchez, 900 F.3d 678 , 682 (5th Cir. 2018). 2 United States v. Warren, 720 F.3d 321 , 332 (5th Cir. 2013) (internal quotations omitted). 3 Fed R. Crim. P. 51(b). 4 Holguin-Hernandez v. United States, 140 S. Ct. 762 , 766, 206 L. Ed. 2d 95 (2020). 5 “MR. ANTONIO: Yes, Your Honor. We would ask that you take in consideration that he was in constant contact with probation and with the marshals while he was there. I know the last person that was just sentenced got less time than Mr. Cano did, and he wasn’t in contact with anybody, and he hadn’t -- he hadn’t self-surrendered, hadn't turned himself in.”. 6 Cf. Warren, 720 F.3d at 332 (“At sentencing, Warren objected that his sentence was above the guidelines range, but he made no objection on the specific grounds he now raises. Our review, therefore, is for plain error.”). 4 Case: 19-11297 Document: 00515658697 Page: 5 Date Filed: 12/02/2020 No. 19-11297 A. When imposing sentence after revoking a term of supervised release, a district court is restricted to considering only certain sentencing factors referenced in 18 U.S.C. § 3583 . 7 Permissible factors include “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as the need “to afford adequate deterrence to criminal conduct. . . .” 8 Excluded from consideration are those factors listed in § 3553(a)(2)(A), “which allows a court to impose a sentence that reflects the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 9 When a factor listed in § 3553(a)(2)(A) becomes a dominant factor in sentencing, the district court commits plain error. 10 According to Cano, the district court clearly gave significant weight to an improper factor—the need to promote respect for the law—because the district court “cited only this one reason when explaining its decision to impose two consecutive sentences” fifteen months above the high end of the guideline range. This argument is based on the district court’s commentary on Cano’s history of absconding, a history which left the district court with the impression that Cano did not “have any regard for the laws of the United 7 See 18 U.S.C. § 3583 (e) (directing the district court to consider “the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)”). 8 18 U.S.C. §§ 3553 (a)(1), (a)(2)(B). 9 United States v. Miller, 634 F.3d 841 , 844 (5th Cir. 2011). 10 United States v. Givens, 746 F. App’x 421, 422 (5th Cir.), cert. denied, 139 S. Ct. 2034 , 204 L. Ed. 2d 233 (2019); United States v. Pinner, 655 F. App’x 205, 207 (5th Cir. 2016) (“After Miller, this court clarified that a sentencing error occurs when an impermissible consideration is a dominant factor in the court's revocation sentence, but not when it is merely a secondary concern or an additional justification for the sentence.”). 5 Case: 19-11297 Document: 00515658697 Page: 6 Date Filed: 12/02/2020 No. 19-11297 States.” The revocation hearing transcript makes plain that the district court was concerned by Cano’s earlier absconding from the jurisdiction. And the logical inference from the colloquy is that this history motivated the district court to depart upward from the guideline range. But the district court’s use of Cano’s past absconding at sentencing is not plainly erroneous. “A sentence imposed on revocation of supervised release punishes a breach of trust for violating the conditions of supervision.” 11 And Cano’s penchant for absenting himself from law enforcement’s jurisdiction is “‘the conduct leading to the revocation’” of his supervised release, which the court may “‘consider[] in measuring the extent of the breach of trust.’” 12 Under § 3583(e), the court was allowed to consider Cano’s conduct through the lens of “the nature and circumstances of the offense and the history . . . of the defendant,” as well as the need “to afford adequate deterrence to criminal conduct.” 13 The district court’s reliance on Cano’s absconding in pronouncing sentence was not itself plain error. The passing reference to Cano’s lack of respect for the law does not make it plain that the district court impermissibly used Cano’s history of absconding. 14 To show plain error, Cano must demonstrate that the impermissible consideration affected his substantial rights, which here means “show[ing] a reasonable probability that, but for the district court’s error, 11 United States v. Daughenbaugh, 793 F. App’x 237, 240 (5th Cir. 2019). 12 United States v. Rivera, 797 F.3d 307 , 309 (5th Cir. 2015) (quoting U.S.S.G. Ch. 7, Pt. A, intro. comment. (U.S. Sentencing Comm’n 2014)). 13 18 U.S.C. §§ 3553 (a)(1), (a)(2)(B); see also 18 U.S.C. § 3583 (e) (directing the district court to consider the factors “in section 3553(a)(1), (a)(2)(B).”). 14 United States v. Antrim, 681 F. App’x 329, 333 (5th Cir. 2017) (“We have held that recitation of these impermissible factors without more does not result in plain error.”). 6 Case: 19-11297 Document: 00515658697 Page: 7 Date Filed: 12/02/2020 No. 19-11297 [he] would have received a lower sentence.” 15 In passing sentence, the district court stated “I don’t think a sentence any less than that would adequately and appropriately address all the factors the Court should consider in sentencing under 18 United States Code Section 3553(a).” “The court’s references to the factors that ‘should’ be considered indicate that the court limited its decision to the § 3553(a) factors enumerated in § 3583(e).” 16 As explained above, a defendant’s history is one of the factors that informs sentencing when supervised release is revoked. Here, whether the district court was attempting to promote respect for the law by varying upward is uncertain. And Cano’s speculation is insufficient to show plain error because this Court is unable to say, with reasonable probability, that Cano would have received a lower sentence absent the asserted error. 17 B. Cano argues that his sentence was unreasonable because the district court failed to account for his first self-surrender after he absconded while on bond. A revocation sentence “is substantively unreasonable if it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” 18 Because we assume Cano preserved his objection, we review the sentence’s substantive 15 United States v. Davis, 602 F.3d 643 , 647 (5th Cir. 2010). 16 United States v. Calender, 500 F. App’x 330 (5th Cir. 2012). 17 United States v. Tovar, 480 F. App’x 345, 349 (5th Cir. 2012) (“Although the court specifically cited Tovar’s recidivism when it imposed her revocation sentence, it is unclear whether this reflects the court’s intent to punish Tovar or instead its desire to afford adequate deterrence and to protect the public, as it stated at other times during the sentencing hearing. Tovar cannot satisfy her burden by relying upon such ambiguity or uncertainty in the record.”). 18 Warren, 720 F.3d at 332. 7 Case: 19-11297 Document: 00515658697 Page: 8 Date Filed: 12/02/2020 No. 19-11297 reasonableness for an abuse of discretion, examining the totality of the circumstances. 19 Our review is “highly deferential, because the sentencing court is in a better position to find facts and judge their import.” 20 “If we find the sentence unreasonable, we may reverse the district court only if we further determine ‘the error was obvious under existing law.’” 21 Cano argues that his sentence is substantively unreasonable because “the district court considered [his] history and characteristics . . . in a way that overlooked the fact of Mr. Cano’s self-surrender from his first time absconding.” As the district court reviewed Cano’s history, defense counsel interjected to explain that, after absconding for two years while facing drug trafficking charges, Cano had turned himself in. To which the district court responded “I don’t have any evidence of that. . . . The Presentence Report says that he was -- an arrest warrant was executed, and he was arrested, is the information I have. I don’t have any information that he self-surrendered.” As Cano now points out, the Presentence Report indicates that Cano “stated he turned himself into [sic] federal officials” after absconding. Cano contends this alleged mitigating fact was entitled to “significant weight” because “the history of absconding was at the front of the district court’s mind when calculating the revocation sentence.” Cano is correct that § 3583(e) directs the district court to consider, among other things, the defendant’s history when imposing a sentence after revoking supervised release. 22 Here, it is clear the district court considered Cano’s history. But the presentence report indicates that the district court 19 Id. 20 United States v. Fraga, 704 F.3d 432 , 439 (5th Cir. 2013). 21 Warren, 720 F.3d at 326 (quoting Miller, 634 F.3d at 843 ). 22 18 U.S.C. § 3583 (e). 8 Case: 19-11297 Document: 00515658697 Page: 9 Date Filed: 12/02/2020 No. 19-11297 was at least partially mistaken, in that the report does briefly reference Cano’s alleged self-surrender. If it was error for the district court not to consider Cano’s first self-surrender, the error was not an obvious one. Cano offers us no case illustrating as much. A revocation sentencing is “relatively informal” and “a defendant facing revocation is not owed ‘the full panoply of rights due a defendant in’ a criminal prosecution.” 23 “What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” 24 The presentence report does not verify the truth of Cano’s allegation that he turned himself in, it merely repeats his allegation. To the extent the district court premised its upward variance on Cano’s absconding, that premise was accurate. 25 Further, the district court heard Cano’s in-court statement that he had turned himself in after his most recent hiatus abroad and implicitly found that this fact did not mitigate Cano’s decision to abscond for over four years. We hold that the district court’s failure to consider Cano’s first alleged self-surrender does not warrant reversal here. Nor does the upward variance from the guidelines call into doubt the reasonableness of the sentence. 26 It was within the district court’s discretion to find that Cano’s “absconding from supervision and failing to abide by the 23 Warren, 720 F.3d at 329 (quoting Morrissey v. Brewer, 408 U.S. 471 , 480 (1972)). 24 Morrissey, 408 U.S. at 484 . 25 “THE COURT: Mr. Antonio, this defendant has been an absconder for some period of time? MR. ANTONIO: Yes, Your Honor.” 26 United States v. Smith, 676 F. App’x 349, 350 (5th Cir. 2017) (listing cases). 9 Case: 19-11297 Document: 00515658697 Page: 10 Date Filed: 12/02/2020 No. 19-11297 terms of the supervision were serious violations, meriting a significant punishment.” 27 The judgment of the district court is affirmed. 27 United States v. Scicutella, 478 F. App’x 818, 820 (5th Cir. 2012). 10

2020-12-03 01:00:14.737506+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-10722.0.pdf

Case: 19-10722 Document: 00515658287 Page: 1 Date Filed: 12/02/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 2, 2020 No. 19-10722 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Antwonyia Delvion Mitchell, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CR-31-O-1 Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges. Per Curiam:* Antwonyia Delvion Mitchell pleaded guilty to possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922 (g)(1), and received a sentence of seventy-one months’ imprisonment and three years’ supervised release. Shortly after Mitchell was sentenced, the Supreme Court decided Rehaif v. United States, which held that a defendant’s knowledge of * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-10722 Document: 00515658287 Page: 2 Date Filed: 12/02/2020 No. 19-10722 his prohibited status is an element of a § 922(g) offense. 1 Mitchell appeals his conviction, contending that the factual basis supporting his plea was insufficient under Rehaif because the record failed to establish that he knew of his felon status when he possessed the firearm. Because Mitchell does not demonstrate that the Rehaif error affected his substantial rights and resulted in a miscarriage of justice, we affirm. I The statute under which Mitchell was convicted provides that it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce any firearm. After Mitchell pleaded guilty to this offense and was sentenced, the Supreme Court held in Rehaif that in order to convict, the prosecution must prove that the defendant knew that a prior conviction was punishable for a term exceeding one year at the time she possessed a firearm.2 Prior to the offense at issue, Mitchell was convicted of four prior state felonies. In 2006, Mitchell pleaded guilty to credit card abuse and received three years’ probation. In 2008, he pleaded guilty to a second charge of credit card abuse, his probation was revoked, and he was sentenced to two 180-day terms of imprisonment. In 2016, Mitchell pleaded guilty to two additional counts of credit card abuse and was sentenced to two concurrent terms of ten months’ imprisonment. Under Texas law, credit card abuse is a state jail felony, punishable by a prison term of 180 days to two years. 3 Mitchell’s 1 139 S. Ct. 2191 , 2200 (2019). 2 See id. 3 Tex. Penal Code §§ 12.35(a), 32.31(d). 2 Case: 19-10722 Document: 00515658287 Page: 3 Date Filed: 12/02/2020 No. 19-10722 felony convictions for credit card abuse thus constitute the predicate for his § 922(g)(1) offense. Before accepting Mitchell’s guilty plea for each of these four offenses, the state criminal court was required to admonish Mitchell “of the range of punishment attached to each offense.”4 In other words, Texas law compelled the court to inform Mitchell that he was pleading guilty to a felony. Mitchell concedes that he was admonished. Even if he had not made this concession, this court presumes that the admonitions occurred as required by Texas law.5 Thus, while Mitchell’s prior convictions all resulted in sentences of less than one year, Mitchell knew when he entered each plea that the conviction was punishable by a longer term. In 2018, Mitchell committed the present offense. According to the Presentence Investigation Report (PSR), whose factual findings the district court adopted, Mitchell was detained and handcuffed on suspicion of using another person’s identification to obtain a loan at a car dealership. While officers were speaking to a dealership employee, Mitchell attempted to flee, and officers pursued him. During the chase, one officer realized that Mitchell had a handgun, which he pointed at the officer. When the officer drew his own weapon, Mitchell dropped the gun but continued running. Officers eventually detained him and recovered the gun, a loaded 9mm pistol. Mitchell was charged with several offenses, including unlawful possession of a firearm by a felon in violation of § 922(g)(1). Applying a three-point reduction for accepting responsibility and a six-point increase for 4 Tex. Code Crim. Proc. art. 2613(a). 5 See Aerojet-General Corp. v. Askew, 511 F.2d 710 , 720 (5th Cir. 1975) (explaining that the “judgment of a court of competent jurisdiction” “is entitled to a presumption of regularity.”). 3 Case: 19-10722 Document: 00515658287 Page: 4 Date Filed: 12/02/2020 No. 19-10722 assaulting a law enforcement officer during flight, the PSR calculated Mitchell’s total offense level at 21. Mitchell entered a guilty plea, which the district court accepted. In the plea’s factual basis, Mitchell admitted that he had at least one prior felony conviction, he knowingly possessed a firearm, and the firearm traveled in interstate commerce. The district court later sentenced Mitchell to seventy-one months’ imprisonment and three years’ supervised release. Four days after the district court entered judgment and imposed the sentence, the Supreme Court decided Rehaif v. United States, which held that, to violate § 922(g), a defendant must know “he belonged to the relevant category of persons barred from possessing a firearm.” 6 Mitchell then timely appealed. We previously held Mitchell’s case in abeyance pending our decision in United States v. Brandon.7 We have now issued a published opinion in Brandon, as well as three other cases involving Rehaif errors asserted by defendants who pleaded guilty to being felons-in-possession: United States v. Montgomery,8 United States v. Lavalais,9 and United States v. Hicks.10 II On appeal, Mitchell argues that the factual basis of his plea was insufficient under Rehaif, because the record failed to establish that he knew he was a felon at the time he possessed the gun. Because Mitchell failed to 6 139 S. Ct. 2191 , 2200 (2019). 7 965 F.3d 427 (5th Cir. 2020). 8 974 F.3d 587 (5th Cir. 2020). 9 960 F.3d 180 (5th Cir. 2020). 10 958 F.3d 399 (5th Cir. 2020). 4 Case: 19-10722 Document: 00515658287 Page: 5 Date Filed: 12/02/2020 No. 19-10722 raise this argument before the district court, we review for plain error. 11 To establish the requisite plain error, Mitchell must show: (1) an error (2) that is “clear or obvious, rather than subject to reasonable dispute,” (3) affecting his substantial rights.12 If Mitchell makes this showing, we may exercise our discretion to grant relief if (4) the error “seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.” 13 “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”14 This factual basis must “be sufficiently specific to enable the district court to compare the conduct admitted by the defendant with the elements of the offense charged.” 15 When assessing factual sufficiency of evidence under the plain error standard, this court “may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting his conviction.”16 “This includes the facts gleaned from the plea agreement and plea colloquy, the factual findings relied upon in the [PSR], as well as ‘fairly drawn’ inferences from the evidence presented both post-plea and at the sentencing hearing.”17 Three elements of a § 922(g) offense were well-established when Mitchell pleaded guilty: (1) the defendant has been previously convicted of 11 See United States v. Ortiz, 927 F.3d 868 , 872 (5th Cir. 2019). 12 Puckett v. United States, 556 U.S. 129 , 135 (2009). 13 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725 , 736 (1993)). 14 Fed. R. Crim. P. 11(b)(3). 15 United States v. Trejo, 610 F.3d 308 , 313 (5th Cir. 2010). 16 Id. 17 Id. at 317 . 5 Case: 19-10722 Document: 00515658287 Page: 6 Date Filed: 12/02/2020 No. 19-10722 an offense punishable by a term of imprisonment exceeding one year, (2) the defendant knowingly possessed a firearm, and (3) the firearm traveled in or affected interstate commerce.18 In Rehaif, the Supreme Court held that the defendant must have known, at the time he possessed the weapon, that he belonged to a class of persons barred from possessing a gun. 19 One such class, set forth in § 922(g)(1), includes defendants with felon status. 20 Rehaif specifically concerned a defendant’s knowledge that “he was in the country unlawfully” under § 922(g)(5), and thus did not settle “what precisely the Government must prove to establish a defendant’s knowledge of status in respect to” § 922(g)(1).21 But the Court did express concern that if the statute did not require knowledge of felon status, it “might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’”22 A Under plain-error review, Mitchell must first establish an error by “show[ing] that the factual basis was insufficient to support his plea.” 23 The factual basis accompanying Mitchell’s plea listed the first three elements of a § 922(g)(1) offense—Mitchell had been previously convicted of a felony, Mitchell knowingly possessed a firearm, and the firearm traveled in interstate commerce. However, the factual resume neither mentioned the knowledge- 18 See United States v. Guidry, 406 F.3d 314 , 318 (5th Cir. 2005). 19 139 S. Ct. 2191 , 2200 (2019). 20 See id.; 18 U.S.C. § 922 (g)(1). 21 Rehaif, 139 S. Ct. at 2195, 2200 . 22 Id. at 2198 (quoting § 922(g)(1)). 23 United States v. Brandon, 965 F.3d 427 , 431 (5th Cir. 2020). 6 Case: 19-10722 Document: 00515658287 Page: 7 Date Filed: 12/02/2020 No. 19-10722 of-felon-status requirement nor otherwise indicated that Mitchell was aware he had been convicted of a felony at the time he possessed the firearm. The same was true of Mitchell’s plea hearing. The district court read the first three elements of the offense, but did not inform Mitchell that the offense required him to know of his felon status when he possessed the firearm. Because the district court “did not explicitly consider” whether the factual basis sufficiently demonstrated that Mitchell knew of his felon status at the time he possessed the firearm, “the district court erred[,] and this error is clear under current law.”24 Thus, Mitchell satisfies prongs one and two of our plain-error analysis. B Under the third prong of our plain error analysis, Mitchell must show that the error affected his substantial rights; that is, he must demonstrate “a reasonable probability that he would not have ple[ade]d guilty had he known of Rehaif.”25 We have observed that “[d]emonstrating prejudice under Rehaif will be difficult for most convicted felons for one simple reason: Convicted felons typically know they’re convicted felons. And they know the Government would have little trouble proving that they knew.” 26 Likewise, Rehaif itself “doubt[ed] that the obligation to prove a defendant’s knowledge of his status will be . . . [too] burdensome.” 27 24 Id. at 431-32 ; see also United States v. Montgomery, 974 F.3d 587 , 590-91 (5th Cir. 2020) (“The district court’s failure to list the scienter requirement for Montgomery’s § 922(g) offense was an error that is clear and obvious.”). 25 United States v. Lavalais, 960 F.3d 180 , 187 (5th Cir. 2020) (quoting United States v. Hicks, 958 F.3d 399 , 402 (5th Cir. 2020). 26 Id. at 184 . 27 Rehaif v. United States, 139 S. Ct. 2191 , 2198 (2019). 7 Case: 19-10722 Document: 00515658287 Page: 8 Date Filed: 12/02/2020 No. 19-10722 Rehaif described a hypothetical scenario in which a defendant convicted of a crime punishable by more than a year but sentenced only to a term of probation might not know that the crime is a felony. 28 By contrast, in our published cases analyzing the impact of Rehaif error on defendants’ substantial rights, the Government presented solid proof of each defendant’s knowledge of his felon status.29 The evidence proffered here falls somewhere in the middle, but is most analogous to that presented in United States v. Brandon.30 In Brandon, we judicially noticed state court documents bearing the defendant’s signature and thumbprint and acknowledging that, for the defendant’s burglary conviction, punishment was “assessed” at eighteen months’ imprisonment but “suspended” to three years’ probation.31 Notably, these documents also demonstrated that the defendant had been “admonished concerning the range of punishment” at his guilty-plea hearing.32 Further, because the defendant claimed that it was “unclear” whether he remembered the conviction when he possessed a firearm some ten years later, we assessed “circumstantial evidence” that he attempted to 28 Id. (quoting § 922(g)(1)). 29 See, e.g., Hicks, 958 F.3d at 401 (defendant had previously been sentenced to six years’ imprisonment, had served two two-year prison terms, and had been arrested and charged under a separate state felon-in-possession law several months before committing the § 922(g)(1) offense)); Lavalais, 960 F.3d at 187 (defendant had previously received a two-year prison sentence and, shortly after his arrest, asked his companion to falsely claim ownership of the gun); Montgomery, 974 F.3d at 591 (5th Cir. 2020) (defendant had spent over three years in prison for three prior felonies and was still on parole when he was charged under § 922(g)(1)). 30 965 F.3d 427 (5th Cir. 2020). 31 Id. at 430 . 32 Id. at 432 (internal quotations omitted). 8 Case: 19-10722 Document: 00515658287 Page: 9 Date Filed: 12/02/2020 No. 19-10722 conceal the weapon when police approached.33 Taken together, this evidence “establish[ed] that [the defendant] had knowledge of his status as a convicted felon when he possessed the firearm,” so “there [was] not a ‘reasonable probability’ that [the defendant] would have refused to enter the plea absent the district court’s error[,] and [the defendant] [could not] show that the error affected his substantial rights.”34 Like the defendant in Brandon, Mitchell never served a sentence in excess of one year for his previous felonies.35 But while Brandon received a mere probation term for his felony, Mitchell served actual prison time for his prior crimes, making it more likely that he would appreciate the gravity of the offenses.36 Further, as in Brandon, Mitchell was admonished by the state criminal court regarding the potential range of punishment for each felony. 37 Indeed, Mitchell heard these admonitions not once, not twice, but three separate times. Mitchell admits that he was aware of his felon status at the time he was admonished, but contends, as did the defendant in Brandon, that it is “unclear” “[w]hether he remembered that fact” when he possessed the firearm.38 It is true that Brandon presented additional circumstantial evidence of knowledge of felon status, namely the defendant’s attempt to conceal the handgun from police.39 Here, there is no clear evidence of concealment, though Mitchell attempted to leave the dealership when he saw 33 Id. at 432-33 . 34 Id. at 433 . 35 Id. at 430 . 36 See id. 37 Id. at 432 . 38 Id. 39 Id. at 433 . 9 Case: 19-10722 Document: 00515658287 Page: 10 Date Filed: 12/02/2020 No. 19-10722 the police present. After he was arrested and hand-cuffed, he attempted to escape by fleeing on foot. When the police gave chase, he drew the firearm he possessed and attempted to point it at the officers, while still handcuffed. At that point, he was no longer concealing the weapon. In Brandon, though, more than ten years separated the defendant’s single felony conviction and his § 922(g)(1) offense, rendering it far more likely that the defendant would not recall the felony. 40 Here, by contrast, thirty-two months elapsed between Mitchell’s most recent felony and his federal felon-in-possession charge. Though it would be a fact question in this case as to whether Mitchell actually knew he had been convicted of an offense for which he could have been sentenced to more than one year in prison, we think it quite unlikely that, having been convicted of four felonies, been reminded formally of this fact on three separate occasions, and served a total of sixteen months in prison for these offenses, Mitchell was nonetheless unaware of his felon status when he possessed the firearm. Viewed in its entirety, the record does not indicate a reasonable probability that Mitchell would have foregone the plea had he been informed of Rehaif’s additional scienter requirement. We also note that Mitchell received a significant benefit from pleading guilty: the Government awarded him a three-point reduction under the Guidelines for acceptance of responsibility.41 Without this reduction, Mitchell’s resulting offense level would have significantly increased his 40 Id. at 432. 41 See U.S. Sent’g Guidelines Manual §3E1.1 & cmt. 2 (U.S. Sent’g Comm’n 2018) (permitting the reduction for acceptance of responsibility and noting that the adjustment does not apply, except in “rare circumstances” to defendants who choose to proceed to trial). 10 Case: 19-10722 Document: 00515658287 Page: 11 Date Filed: 12/02/2020 No. 19-10722 Guidelines sentencing range.42 The reduction bolsters the conclusion that Mitchell has failed to show that, had he known of Rehaif before entering the plea, he would have gone to trial. C Finally, even if Mitchell could make the required showing, his claim would nonetheless fail the fourth prong of our plain error analysis, under which we have discretion to grant relief if the error “seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.” 43 We have stated that “it would be a miscarriage of justice and a blow to the public reputation of judicial proceedings to reverse [a defendant’s] felon-in- possession conviction based simply on his post-Rehaif argument that ‘the possibility is quite real’ he was unaware of his felon status.”44 Mitchell makes similar arguments here, and they do not merit reversal. In sum, the district court’s failure to assess the factual sufficiency of Mitchell’s knowledge of his felon status, while plainly erroneous, neither affected Mitchell’s substantial rights nor resulted in a miscarriage of justice. * * * We therefore AFFIRM Mitchell’s conviction. 42 See U.S. Sent’g Guidelines Manual ch. 5 pt. A (U.S. Sent’g Comm’n 2018) (range of 77-96 months based on a criminal history category of IV and an offense level of 24). 43 Puckett v. United States, 556 U.S. 129 , 135 (2009) (alteration in original) (quoting United States v. Olano, 507 U.S. 725 , 736 (1993)). 44 United States v. Huntsberry, 956 F.3d 270 , 286 (5th Cir. 2020) (emphasis in original). 11

2020-11-20 19:32:58.449369+00

HITACHI SALES CORPORATION OF AMERICA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent * Hitachi Sales Corp. of Am. v. Commissioner Docket No. 21663-90 United States Tax Court T.C. Memo 1995-84; 1995 Tax Ct. Memo LEXIS 85; 69 T.C.M. (CCH) 1958; February 27, 1995, Filed *85 This matter is before the Court on respondent's motion for summary judgment. We have issued two prior reports in this case: T.C. Memo 1992-504">T.C. Memo. 1992-504, supplemented by T.C. Memo 1994-159">T.C. Memo. 1994-159. In T.C. Memo 1994-159">T.C. Memo. 1994-159, among other things, we held that petitioner's method of accounting for its inventory of spare parts involved valuing such inventory at the lower of "standard cost" (which represents 125 percent of invoice cost) or market. Respondent moves for summary judgment sustaining certain inventory adjustments, including a sec. 481(a), I.R.C., adjustment. The sec. 481(a), I.R.C., adjustment is based in part on valuing inventory at standard cost. Petitioner objects on the ground that standard cost is an incorrect method of accounting. Held: Petitioner having failed to present a material issue of fact, and having failed to raise any other issue of law, summary judgment for respondent is appropriate. For petitioner: Nancy L. Iredale and Robert A. Earnest. For respondent: Anne Hintermeister,Frances Ferrito Regan, and Steven R. Winningham. HALPERN HALPERN SUPPLEMENTAL MEMORANDUM OPINION HALPERN, Judge: This matter is before*86 the Court on respondent's motion for summary judgment, filed July 20, 1994 (the present motion), concerning a section 481 adjustment. This is the third report that the Court has made in this case. Our two prior reports are Hitachi Sales Corp. of America v. Commissioner, T.C. Memo. 1992-504 (Hitachi I), supplemented by Hitachi Sales Corp. of America v. Commissioner, T.C. Memo 1994-159">T.C. Memo. 1994-159 (Hitachi II). In order to facilitate a more complete discussion of the present motion, we will briefly review the relevant history of this case. Unless otherwise noted, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. I. Introduction Petitioner, a subsidiary of Hitachi Sales Corp. (a Japanese corporation), was in the business of selling Hitachi brand consumer electronics equipment in the United States during the years in issue (taxable years ended March 31, 1982, 1983, and 1984). Petitioner indicated on its Federal income tax returns for those years that it used a method of accounting whereby inventory always*87 was valued at the lower of cost or market value ("lower of cost or market" method). Consistent with that method, petitioner, in making its returns for the years in issue, valued its inventory of spare parts at amounts less than cost, due to purported decreases in market value. Such markdowns had the effect of increasing petitioner's cost of goods sold, thereby reducing taxable income. In Hitachi I, among other things, we sustained respondent's disallowance of such markdowns on the ground that petitioner had failed to substantiate the claimed decreases in market value. In Hitachi II, we held: (1) Petitioner valued its spare parts inventory in accordance with the "lower of cost or market" method, (2) more precisely, since petitioner's method of accounting involved valuing inventory at so-called "standard cost" (which represents 125 percent of invoice cost), petitioner valued its spare parts inventory at the lower of standard cost or market, (3) respondent's disallowance of petitioner's markdown to market was a change to petitioner's method of accounting, (4) petitioner is required to value at standard cost both (a) its opening inventory for the first year in issue and (b) its closing*88 inventory for all years in issue, and (5) the application of section 481 "is patent" where there is a change to petitioner's method of valuing inventory. In Hitachi II, with regard to the application of section 481, we stated: An adjustment may be necessary under section 481(a) to prevent amounts from being duplicated or omitted solely on account of a change in method of accounting. Notwithstanding that we have concluded that respondent has changed petitioner's method of accounting with regard to inventories, whether an adjustment is necessary to prevent amounts from being duplicated or omitted requires a finding of fact. The necessity to find facts usually precludes summary judgment. Moreover, the present motion is not directed at whether a section 481 adjustment is necessary. Accordingly, we will not address that question here. We invited either party to move to set a date for trial or take other appropriate action with regard to the section 481 issue. The present motion is in response to that invitation. By the present motion, respondent moves for summary adjudication sustaining her adjustments with respect to petitioner's spare parts inventory for the tax years*89 in issue, including a section 481(a) adjustment for petitioner's tax year ended March 31, 1982, occasioned by the change to petitioner's method of accounting for its inventory of spare parts addressed in Hitachi I and Hitachi II. Petitioner opposes the present motion on the ground that respondent's proposed adjustments, including the section 481 adjustment, are based on valuing petitioner's spare parts inventory at 125 percent of invoice cost (standard cost), a method of accounting that petitioner maintains is an incorrect method of accounting. Petitioner argues that, as a matter of law, respondent may not make adjustments that involve valuing petitioner's spare parts inventory under an incorrect method of accounting. II. Summary Judgment In both Hitachi I and Hitachi II, we discussed the circumstances under which summary adjudication is appropriate, and we will not repeat that discussion here. In support of her motion, respondent relies on the parties' stipulation of the standard cost of petitioner's spare parts inventory at the close of each year here in issue and on respondent's calculation of such standard cost as of the close of the first preceding year to the years*90 here in issue. Petitioner has not challenged such reliance or otherwise argued that there is a genuine issue as to any material fact. We believe that a decision can be rendered here as a matter of law. Accordingly, we believe that the issue presented by respondent is ripe for summary adjudication. See Rule 121(b). We accept the facts stipulated by the parties as true for purposes of deciding the present motion. The stipulation of facts and attached exhibits are incorporated by this reference. III. Facts Relied Upon At the close of the taxable years here in issue (hereafter 1982, 1983, and 1984), the value of petitioner's spare parts inventory, valued at standard cost, was $ 1,264,519, $ 1,379,689, and $ 1,423,772, for 1982, 1983, and 1984, respectively. Respondent used those values in her notice of deficiency to compute the following adjustments resulting from the disallowance of petitioner's markdowns to market. Table 1 Taxable Years 198219831984 Ending inventory$ 1,264,519$ 1,379,689$ 1,423,772 at standard cost Ending inventory420,000420,000420,000 per return Adjustment to844,519959,6891,003,772 ending inventory Less prior year's0   844,519959,689 adjustment Disallowance$   844,519$   115,170$    44,083 *91 At the close of petitioner's tax year ended March 31, 1981 (hereafter 1981), the value of petitioner's spare parts inventory, valued at standard cost, was $ 1,117,346. That amount also was the opening value, at standard cost, of petitioner's spare parts inventory for 1982. On its 1981 and 1982 returns, petitioner had claimed closing and opening values, respectively, of $ 420,000 for such inventory. The consequence of revaluing petitioner's opening inventory of spare parts for 1982 at standard cost is that it reduces the adjustment resulting from revaluing that year's closing inventory of spare parts at standard cost (but not below zero) by the increase in value of opening inventory. That becomes plain if it is kept in mind that the adjustment we are speaking of is a decrease in cost of goods sold. Cost of goods sold, slightly simplified, equals opening inventory plus inventory purchased during the taxable period, minus closing inventory. Thus, the greater the value of opening inventory, other things being held constant, the greater the cost of goods sold. Conversely, the greater the value of closing inventory, other things being held constant, the lesser*92 the cost of goods sold. Accordingly, any decrease in cost of goods sold brought about by an increase in value of closing inventory will, on a dollar for dollar basis, be offset by any increase in value of opening inventory, assuming that no changes are made other than in such values. In Hitachi II, we held that both petitioner's opening inventory of spare parts for 1982 and its closing inventory of spare parts for 1982, 1983, and 1984 must be revalued at standard cost. Accordingly, respondent has recalculated her adjustments to cost of goods sold (and taxable income) taking into account such holdings. Putting aside any section 481 adjustment, respondent's recalculated adjustments, and their effect on taxable income, are as follows. Table 2 Taxable Year Ended 198219831984 Opening inventory$ 1,117,346$ 1,264,519$ 1,379,689 at standard cost Less: Closing inventory1,264,5191,379,6891,423,772 at standard cost Equals: Decrease in cost $ ( 147,173)$ ( 115,170)$ (  44,083) of goods sold per return --  --  --   Also equals: Increase in$   147,173$   115,170$    44,083 taxable income A comparison of*93 the last entries in the columns for 1982, in Tables 1 and 2, shows that respondent's original adjustment resulting from the disallowance of petitioner's markdown to market ($ 844,519) exceeds her recalculated adjustment ($ 147,173) by $ 697,346. Respondent explains that difference as reflecting the required increase in value of opening inventory for 1982 necessitated by our holding in Hitachi II that both opening and closing inventory for that year must be valued at standard cost. To prevent a duplication in cost of goods sold from such new method of accounting for 1982, respondent proposes a section 481 adjustment in a like amount: $ 697,346. IV. Discussion Section 481(a) provides as follows: In computing the taxpayer's taxable income for any taxable year (referred to in this section as the "year of the change")-- (1) if such computation is under a method of accounting different from the method under which the taxpayer's taxable income for the preceding taxable year was computed, then (2) there shall be taken into account those adjustments which are determined to be necessary solely by reason of the change in order to prevent amounts from being duplicated*94 or omitted, except there shall not be taken into account any adjustment in respect of any taxable year to which this section does not apply unless the adjustment is attributable to a change in the method of accounting initiated by the taxpayer. The substance of our opinions in Hitachi I and Hitachi II with regard to petitioner's method of accounting for its inventory of spare parts is that, under such method of accounting, petitioner erroneously marked down the closing value of its spare parts inventory from standard cost to $ 420,000. In Hitachi II, we held that petitioner must revalue both its opening and closing inventories of spare parts for 1982. It is indisputable that, for purposes of section 481(a), there has been a change in petitioner's method of accounting for its inventory of spare parts. The year of change is 1982. Respondent has computed the adjustment ($ 697,346) that she has determined to be necessary solely by reason of such change to prevent amounts from being duplicated. We have no doubt that a duplication of cost of goods sold may occur on account of the required revaluation of inventory. The possibility of such duplication arises because petitioner, *95 having previously marked down its spare parts inventory on hand at the close of 1981, must revalue that inventory upward at the beginning of 1982. Such upward adjustment will, for a second time, be taken account of as a cost of goods sold when such inventory is disposed of. Petitioner disputes no fact. Nevertheless, petitioner argues that respondent's computation of a section 481 adjustment of $ 697,346 is erroneous because petitioner's opening inventory of spare parts for 1982 may not be determined at standard cost but must be determined at some lesser amount. Petitioner cites Prabel v. Commissioner, 91 T.C. 1101">91 T.C. 1101, 1112 (1988), affd. 882 F.2d 820">882 F.2d 820 (3d Cir. 1989) and Rotolo v. Commissioner, 88 T.C. 1500">88 T.C. 1500, 1514 (1987), for the proposition that respondent may not place petitioner on an incorrect method of accounting. Petitioner concedes that "it may not have correctly valued spare parts inventory by basing it on 125 percent of invoice cost" (i.e., standard cost). Petitioner argues that "Petitioner's spare parts inventory may only be valued at actual inventory cost", with certain adjustments as*96 provided for in regulations. Petitioner points to certain previously submitted computations, which it implies are based on "actual inventory cost", with certain adjustments, and support a section 481 adjustment less than that computed by respondent. In Hitachi II, we held that petitioner's method of accounting for its inventory of spare parts included valuing such spare parts at standard cost. We rejected petitioner's claim that, for tax purposes, it has never valued its inventory of spare parts at standard cost. Petitioner's practice of valuing its inventory of spare parts at standard cost involves a material item in petitioner's overall plan for valuing items in inventory. See sec. 1.446-1(e)(ii)(c), Income Tax Regs.; cf. sec. 1.446-1 (e) (iii) Example (7), Income Tax Regs. (20 percent reduction to cost of closing inventory taken as "reserve for price changes" involves treatment of a material item). Any change with regard to petitioner's practice of valuing its inventory of spare parts at standard cost would, thus, by itself, constitute a change in method of accounting. See sec. 1.446-1(e)(2)(ii)(c), Income Tax Regs. Respondent has asked for no such change*97 in method of accounting, nor is there anything in the record to indicate that petitioner has obtained the necessary permission to make any change in method of accounting. See sec. 446(e). Respondent has computed an adjustment that she has determined to be necessary solely on account of the disallowance of petitioner's method of determining market value to prevent amounts from being duplicated. Petitioner, who bears the burden of proof, has raised no facts to contradict respondent's computation. Summary judgment in respondent's favor is appropriate. Prabel v Commissioner, and Rotolo v. Commissioner, supra, are inapposite. If, indeed, petitioner's method of valuing its inventory of spare parts at standard cost is an erroneous method of accounting, petitioner may change its method of accounting, once it has obtained the consent of respondent. See sec. 446(e). If that change occasions an omission, then another section 481 adjustment may be in order. The disadvantage to petitioner of our today not considering its claim of an erroneous method is only a disadvantage of timing, not a disadvantage of omission. Section 481 can work in a taxpayer's favor as well as against*98 him. It is time, however, to put this case to rest. On the premises stated, we sustain total adjustments for 1982 as follows: Table 3 Taxable Year 1982 Increase to taxable income$ 147,173 after revaluing beginning and ending inventory at standard cost: Opening inventory at$ 1,117,346  standard cost: Less: Opening inventory$  (420,000) per return: Equals:$   697,346  697,346 Omitted income due to change in method of accounting (sec. 481): Total increase to taxable $ 844,519 income: V. Conclusion Respondent's motion for summary judgment will be granted. An appropriate order will be issued. Footnotes

2020-12-03 07:15:35.35764+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=10849&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa08%5cOpinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § No. 08-20-00047-CV IN THE MATTER OF § Appeal from the THE GUARDIANSHIP OF § County Court at Law No. 4 JANET CHURCH, § of Williamson County, Texas 1 AN INCAPACITATED PERSON. § (TC# 18-0190-CP4) § MEMORANDUM OPINION This appeal is before the Court on its own motion for determination of whether it should be dismissed for want of prosecution. Finding that Appellant Frank Mendicino has not filed a brief or a motion for extension of time, we dismiss the appeal. On October 13, 2020, the Clerk of the Court sent the parties a notice that Appellant had not filed his brief or motion for extension of time. Further, the notice advised the parties of the Court’s intent to dismiss for want of prosecution unless one of the parties responded showing grounds to continue the appeal. No response has been received as of this date. This Court possesses the authority to dismiss an appeal for want of prosecution when the 1 We hear this case on transfer from the Third Court of Appeals in Austin. See TEX.R.APP.P. 41.3. appellant has failed to file a brief in the time prescribed and gives no reasonable explanation for such failure. TEX.R.APP.P. 38.8(a)(1). Because Appellant failed to file his brief and has not responded to our inquiry, we dismiss the appeal for want of prosecution pursuant to TEX.R.APP.P. 38.8(a)(1), 42.3(b), and 42.3(c). December 2, 2020 YVONNE T. RODRIGUEZ, Justice Before Alley, C.J., Rodriguez, and Palafox, JJ. 2

2015-10-16 04:41:57.515311+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=945&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa13%5cOpinion

NUMBER 13-12-00197-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN RE HERMELINDA P. REYNA On Petition for Writ of Mandamus. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion Per Curiam1 Relator, Hermelinda P. Reyna, pro se, filed a document entitled “Order of Appeals” in the above cause on March 19, 2012. The document is unclear regarding the specific actions or orders complained of or the nature of the relief sought by relator. Because the document does not reference an order or judgment subject to appeal, and the underlying trial court cause as identified in this pleading remains pending, we 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). construe this document as a petition for writ of mandamus. See generally TEX. R. APP. P. 25.1(a), (d). To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court abused its discretion and that there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124 , 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149 , 151 (Tex. 2003) (orig. proceeding); see also Barnes v. State, 832 S.W.2d 424 , 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”). In addition to other requirements, relator must include a statement of facts supported by citations to “competent evidence included in the appendix or record,” and must also provide “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the required contents for the record). The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has not met her burden to obtain mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135 –36. In fact, at the present time, the Court is unable to discern the nature of the relief sought 2 by relator. Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a). PER CURIAM Delivered and filed the 27th day of March, 2012. 3

2020-01-17 22:02:01.726825+00

Smith

*489OPINION. Smith : The question presented by this proceeding is whether the gift made by the decedent on August 1, 1918, of three certificates for 4,000 shares each of stock of the George W. Dulany Trust assigned to and delivered to the decedent’s wife, daughter, and son, respectively, was a gift “ intended to take effect in possession or enjoyment at or after” decedent’s death within the meaning o.f section 402(c) of the Revenue Act of 1921. The stipulation signed by counsel for the petitioner and respondent upon this point reads: On August 1, 1918, the decedent transferred his interest in the trust, consisting of 12,000 shares, as a gift to the following: Shares Fanny W. Dulany (wife)- 4,000 Clifton D. Lingo (daughter)_ 4,000 George W. Dulany, Jr. (son)_ 4,000 Total_ ... 12,000 *490The shares so given were delivered to and accepted by the donees. The evidence is to the effect that the decedent on August 1, 1918, was on the retired list permanently; that he was satisfied with the way his affairs had been conducted for several years; that he realized he was through with active business; that he had taken care of the members of his family for many years and made fortunes for them and he expected them to take care of him for the rest of his life. His only property at the time, aside from a cash balance in the bank, consisted of the certificates of beneficial interest in question. In his own handwriting he assigned these certificates to his wife, daughter, and son, respectively, and delivered them to the assignees. They were delivered as a gift and accepted by the donees as such. All of the donees appear to have been surprised at the receipt of the certificates. The mother sent her certificate to her son, who attended to the business affairs of the family. The daughter offered to send on her certificate to her brother but was advised by him to keep it until he should determine what should be done. The son was in some quandary as to whether the shares of stock represented by the certificates should be transferred on the books of the trust. His father had no income except from the shares of stock. All three donees had large holdings in the George W. Dulany Trust from which they were receiving large incomes. He considered that the family must take care of the father and provide him with an income. He therefore continued to credit his father with the dividends which became payable upon the shares of stock represented by the assigned certificates. This was without any objection from his mother and sister. The respondent contends that from the fact that the decedent continued to be credited with the dividends which were declared upon the shares represented by the assigned certificates until after his death, the gift was to take effect in possession and enjoyment after the death of the decedent. The stipulation is to the effect that the decedent transferred his interest on August 1, 1918, consisting of the 12,000 shares in question, as a gift to his wife, daughter, and son, respectively; that the shares so given were delivered to and accepted by the donees. The evidence amply supports the stipulation. The fact that the son was reluctant to transfer the shares upon the books of the trust does not in our opinion change the fact that the gift made by the decedent was an absolute gift of the shares and that his property in the shares was then transferred to the donees. The donees had the beneficial use in the property from the date of the transfer had they chosen to exercise it. The income from the shares was the donees’ income just as much as though they had received the income in the first instance and paid it over to the decedent. Upon *491the stipulation filed in the case and upon the evidence of record the contention of the petitioner that the value of the assigned certificates was not a part of the gross estate of the decedent is sustained. Reviewed by the Board. Judgment will be entered under Rule 50.

2021-01-27 00:08:10.859484+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343612

01/26/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0022 OP 21-0022 ANDREW DOUGLAS PAIGE, JAN 2 6 2021 Petitioner, Bowen Greenwood Clerk of Supreme Court State of Montana v. ORDER PETE BLUDWORTH, Warden, Crossroads Correctional Center, Respondent. Representing himself, Andrew Paige puts forth that his sentence needs correction and includes a copy of the final judgment with his recently filed Petition for a Writ of Habeas Corpus. Paige also moves for appointment of counsel, contending that he needs legal representation to get "a fair deal." On October 5, 2020, the First Judicial District Court, Lewis and Clark County, sentenced Paige for two counts of felony sexual abuse of children to the Montana State Prison for two, concurrent 100-year terms. The District Court imposed a twenty-five-year parole ineligibility restriction and awarded Paige 1,435 days of credit for time served. The court ran his sentence consecutively to a prior sentence for felony theft. The District Court designated Paige as a sexually violent predator and as a Level 3 sexual offender. Paige claims that his sentence and incarceration are both illegal betcause: (1) the sentence violates the Eighth Amendment prohibiting cruel and unusual punishment;(2)the conditions are illegal; (3) the sex offender conditions are illegal; (4) his sentence was to run concurrently; and (5) the court-imposed parole restriction is illegal. Paige alleges claims of ineffective assistance ofcounsel stating that his counsel failed to object or failed to follow their agreement. Paige has filed a Notice of Appeal along with his Petition. The District Court filed Paige's Judgment and Commitment on October 7, 2020. For this Court to obtain jurisdiction ofa criminal appeal, Paige should have filed his Notice  of Appeal on or before December 6, 2020. M. R. App. P. 4(5)(b)(i). Instead, he filed his Notice along with his Petition on January 8, 2021. , Paige is not entitled to an appeal of his criminal convictions here nor is he entitled to habeas corpus relieffor an alleged illegal sentence. Paige has not demonstrated an illegal sentence. Section 46-22-101(1), MCA. Paige's sentence does not violate the Eighth Amendment. The District Court had statutory authority, pursuant to § 45-5-625(1)(e), MCA, for the convictions and § 45-5-625(4), MCA (2015), for the sentencing.' "If the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense, the offender[] shall be punished by imprisonment in a state prison for a term of 100 years." Section 45-5-625(4)(a)(i), MCA. Next, the sentencing judge was required under Montana law to impose a parole ineligibility restriction, pursuant to § 45-5-625(4)(a)(i), MCA, stating that "during the first 25 years of imprisonment, the offender is not eligible for parole." Neither the standard conditions nor sex offender conditions are illegal. The sentencing judge possessed statutory authority pursuant to § 46-18-201, and § 46-18-202, MCA. The judge designated Paige a level 3 offender, pursuant to § 46-18-207(1), MCA. Because Paige was sentenced under § 45-5-625(4), MCA,he must"remain in an outpatient sexual offender treatment program for the remainder ofthe person's life." Section 46-18- 207(2)(a)(iH), MCA. Section 46-18-222(6), MCA,entitles a judge to impose treatment of an offender while incarcerated. Paige's two sentences for these sexual offenses were run concurrently to each other. Pursuant to § 46-18-401(4), MCA,"[s]eparate sentences for - two or more offenses must run consecutively to each other unless the court otherwise orders." The District Court had authority to run Paige's sentence for the sexual offenses consecutively to his prior sentence for theft. Paige did not object to the conditions when sentenced. We point out that by entering into a plea agreement, he has waived any challenge to his conditions. " [A] defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly Paige committed his offenses in 2016, and the 2015 version of the Montana Code Annotated applies. 2 entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea.'" State v. Pavey, 2010 MT 104 , ¶ 11, 356 Mont. 248 , 231 P.3d 1104 (quoting State v. Violette, 2009 MT 19 , ¶ 16, 349 Mont. 81 , 201 P.3d 804 ). Paige is not entitled to these conditions being amended or stricken. Given the foregoing, Paige is not entitled to legal representation in this original proceeding for habeas corpus relief. Section 46-8-104, MCA. We remind Paige that he received a fair deal. He pleaded guilty to two counts in exchange for the State's dismissal of seven other counts of felony sexual offenses. Paige has received the benefit of the bargain by entering into a plea agreement with the State. We conclude that Paige has not dernonstrated illegal incarceration, and his sentence does not need correction. Section 46-22-101(1), MCA. The proper remedy for non-record-based claims ofineffective assistance of counsel is postconviction relief under § 46-21-102(1), MCA,not state habeas corpus. We make no express or implied comment here as to the procedural or substantive merit of Paige's particular claims of ineffective assistance of counsel for purposes of postconviction relief. Accordingly, IT IS ORDERED that Paige's Petition for a Writ ofHabeas Corpus is DENIED and that Paige's Motion for Appointment of Counsel is DENIED. The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel of record and to Andrew Paige personally. DATED this E.4„4-1):day of January, 2021. Chief Justice 4

2021-01-27 00:08:09.584127+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343610

UNA 01/26/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0031 OP 21-0031 F LED CHARLES ALLEN ARMSTRONG, JAN 2 6 2021 Petitioner, E3owen Greenwood Clerk of Supreme Court State of A/lontana v. ORDER PETE BLUDWORTH, Warden, Crossroads Correctional Center, Respondent. Charles Allen Armstrong petitions this Court for habeas corpus relief, indicating that his sentence is longer than allowed under Montana law. Arrnstrong contends that his three, five-year sentences are illegal because they all run consecutively to each other. He states that "5 year DOC,5 year, 5 year all consecutive . ..[have] turned into a 15 year MSP sentence for [him]." He further states that more of his sentences should be suspended and that he was "unfairly and unharshly sentenced[1" He puts forth that his due process rights were violated because he did not obtain a copy of his written judgments until July 2020, almost eighteen months after issuance, thereby precluding any opportunity to seek sentence review. Armstrong also alleges that the Department of Corrections(DOC)failed to comply with the Americans with Disability Act (ADA)because the DOC failed to give him a back brace as reasonable accommodation for his "chronic back issues[,]" to allow him "to proceed as an Inmate worker[1" This Court is familiar with Armstrong's history because we addressed his claim about a "box-car" sentence last year. See Armstrong v. Kowalski, No. OP 20-0337, 2020 Mont. LEXIS 1993, Order(Mont. Jul. 7,2020)(Armstrong I). On December 11,2018,the Lewis and Clark County District Court sentenced him to a five-year DOC sentence for forgery, a five-year consecutive DOC sentence for forgery, and a three-year concurrent term for deceptive practices. On April 25, 2019, the Butte-Silver Bow County District Court sentenced Armstrong to a five-year consecutive sentence to the DOC for possession of cocaine. We concluded then that Armstrong's sentences were valid. Armstrong's sentences are not illegal. Even though Armstrong does not provide any authority for his conclusion, he may be referring to a Montana statute where the first five years must be suspended. Pursuant to § 46-18-201(3)(a)(iv)(A), MCA (2017),[w]henever a person has been found guilty of an offense upon . . . a plea of guilty . . . , a sentencing judge may impose a sentence that may include[,]" a commitment "to the department of corrections with a recommendation for placement in an appropriate correctional facility or program; however, all but the first 5 years of the commitment to the department of corrections must be suspended[J" This statutory scheme provides other options for sentencing, too. A sentence may include "any combination of subsections (2) and (3)(a)(i) through (3)(a)(vii)." Section 46-18-201(3)(a)(vii), MCA (2017). Consequently, Armstrong's sentences are valid because a district court may impose "a term of incarceration, as provided in Title 45 for the offense, at a county detention center or at a state prison to be designated by the department ofcorrections[t Section 46-18-201(3)(a)(iii), MCA (2017). The Lewis and Clark County District Court as well as the Butte-Silver Bow County District Court sentenced Armstrong to the DOC under the existing statutory authority for the offense. For forgery, a term in the state prison may be five years for a second, or third or subsequent offense, pursuant to § 45- 6-325(4)(b), MCA(2017). For criminal possession of dangerous drugs,such as cocaine, a person "shall be imprisoned in a state prison for a term not to exceed 5 years ...." Section 45-9-102(3),MCA(2017). "Separate sentences for two or more offenses must run consecutively unless the court otherwise orders." Section 46-18-401(4), MCA (2017). Armstrong I, at *4-*5. Armstrong has not demonstrated that he is entitled to habeas corpus relief. He has not shown an illegal sentence or illegal incarceration. Section 46-22-101(1), MCA. As explained previo-usly, he has a valid sentence under Montana law. Armstrong's other claims are outside the scope of habeas corpus relief. We point out, however, pursuant to § 46-18-904(1)(a)(ii), MCA,the Sentence Review Division of the Montana Supreme Court may "decrease or increase [] the penalty[,]" upon review. 2 Turning to his request for a back brace, it is not clear whether Armstrong filed a kite or Inmate/Offender Grievance Form with the DOC in making such request. See DOC Montana State Prison Inmate Grievance Program 3.3.3. The DOC's program would be the more appropriate forum. Therefore, IT IS ORDERED that Armstrong's Petition for a Writ ofHabeas Corpus is DENIED and DISMISSED. The Clerk is directed to provide a copy of this Order to counsel of record and to Charles Allen Armstronrsonally. DATED this al. day of January, 2020. Chief Justice 3

2021-01-27 00:08:06.275172+00

https://juddocumentservice.mt.gov/getDocByCTrackId?DocId=343611

n PI V zi Pe "- t •' 01/26/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0034 OP 21-0034 MELANIE HOKE, FLED Petitioner, JAN 2 6 2021 v. Bowen Greenwood Clerk of Supreme Court critttirterl° FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY,HON.SHANE A. VANNATTA,Presiding, Respondent. Petitioner Melanie Hoke, via counsel, seeks a writ of supervisory control directing the Fourth Judicial District Court, Missoula County, to reverse its Order denying her motion to dismiss in the District Court's Cause No. DR-20-175. In that Order, the District Court denied Hoke's motion to dismiss pursuant to M. R. Civ. P. 12(b)(6), concluding that Petitioner Gregory Nardi's petition in that matter had stated a claim for which relief could be granted under § 41-9-102(4), MCA. In her petition for writ, Hoke argues that the District Court erred as a matter oflaw in denying her motion. Hoke further seeks to stay the proceedings in the District Court pending the disposition of this petition. Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when the other court is proceeding under a rnistake of law and is causing a gross injustice, constitutional issues of state-wide importance are involved, or, in a criminal case, the other court has granted or denied a motion to substitute a judge. M. R. App. P. 14(3). Consistent with Rule 14(3), it is the Court's practice to refrain from exercising supervisory control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh Judicial Dist. Court, No. OP 16-0517,  386 Mont. 393 , 386 P.3d 545 (table)(Oct. 18, 2016); Lichte v. Mont. Eighteenth Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540 , 382 P.3d 868 (table)(Aug. 24, 2016). Hoke has failed to establish that urgency or emergency factors rnake appeal an inadequate remedy in this case. Although she asserts that she will bear the burden and expense of discovery and hearing if this rnatter is not dismissed, this Court has held that conserving resources, without more, is insufficient grounds to justify supervisory control where a party can seek review of the lower court's ruling on appeal and there is no evidence that relief on appeal would be inadequate. Yellowstone Elec. Co. v. Mont. Seventh Judicial Dist. Court, No. OP-1 9-0348. 397 Mont. 552 , 449 P.3d 787(table)(Aug. 6, 2019). In this instance, Hoke has not dernonstrated that her remedy on appeal would be inadequate. Because we are denying Hoke's petition for writ of supervisory control, it is unnecessary to stay proceedings in the District Court. IT IS THEREFORE ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED. IT IS FURTHER ORDERED that the motion for stay of proceedings is DENIED as MOOT. The Clerk is directed to provide irnmediate notice of this Order to counsel for Petitioner, all counsel of record in the Fourth Judicial District Court, Missoula County, Cause No. DR-20-175, and the Honorable Shane A. Vannatta, presiding Judge. DATED this ?--s-L day of January, 2021. Chief Justice 3

2020-12-03 07:15:36.64086+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=2838&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa08%5cOrder

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § ROBERT TERRAZAS, No. 08-20-00123-CR § Appellant, Appeal from the § v. 243rd District Court § THE STATE OF TEXAS, of El Paso County, Texas § State. (TC# 20180D04321) O R D E R The Court GRANTS the State’s third motion for extension of time within which to file the brief until January 1, 2020. NO FURTHER MOTIONS FOR EXTENSION OF TIME TO FILE THE STATE’S BRIEF WILL BE CONSIDERED BY THIS COURT. It is further ordered that the Hon. Jaime Esparza, the State’s attorney, prepare the State’s Brief and forward the same to this Court on or before January 1, 2020. IT IS SO ORDERED this 2nd day of December, 2020. PER CURIAM Before Alley, C.J., Rodriguez and Palafox, JJ.

2020-11-20 19:32:44.111392+00

Richard T. Graham, Petitioner, v. Commissioner of Internal Revenue, Respondent Graham v. Commissioner Docket No. 72963 United States Tax Court June 30, 1961, Filed *116 Decision will be entered for the respondent. Held, that amounts received by the petitioner in the years 1954 and 1955 pursuant to awards of the Mixed Claims Commission, United States and Germany, constituted ordinary income, and not amounts received on retirement of evidences of indebtedness of a government or political subdivision thereof, in registered form, within the contemplation of section 1232(a)(1) of the Internal Revenue Code of 1954. George R. Wagner, Esq., for the petitioner. Norman L. Rapkin, Esq., for the respondent. Atkins, Judge. ATKINS *612 The respondent determined deficiencies in income tax for the taxable years 1954 and 1955 in the respective amounts of $ 803.87 and $ 839.77. *613 The question presented is whether certain payments received by the petitioner in the years in question pursuant to an award of the Mixed Claims Commission, United States and Germany, constituted ordinary income or capital gain. FINDINGS OF FACT. Some of the facts have been stipulated and the stipulations are incorporated herein by this reference. The petitioner is an individual residing in Tarrytown, New York. For the taxable years 1954 and 1955 he filed *117 Federal income tax returns with the district director of internal revenue, Lower Manhattan, New York, New York. On August 10, 1922, the United States and Germany entered into an agreement (Treaty Series, No. 665, p. 2601), providing for the establishment of the Mixed Claims Commission, United States and Germany, to determine the amount to be paid by Germany, in accordance with a treaty concluded by the two Governments on August 25, 1921, in satisfaction of Germany's financial obligations to the United States and its nationals on account of losses and damage sustained during World War I. It was therein provided that the decisions of the Commission should be accepted as final and binding upon the two Governments. The Mixed Claims Commission, under Docket No. 5077, made an award (the precise time and amount not shown by the record) to Charles E. Miller and Thomas H. Baskerville as receivers of Lucy Manufacturing Corporation. It is stipulated that such award was not granted with, nor has it ever had, interest coupons attached. On March 10, 1928, the Congress enacted the "Settlement of War Claims Act of 1928" (Act of March 10, 1928, ch. 167, 45 Stat. 254), which was subsequently amended*118 by the Act of March 3, 1933 (ch. 210, Pub. L. 426, 72d Cong., 2d Sess.). Such Act as amended provided that the Secretary of State should from time to time certify to the Secretary of the Treasury the awards of the Mixed Claims Commission; that the Secretary should pay an amount equal to the principal of each award so certified, plus the interest thereon, in accordance with the award, accruing before January 1, 1928; that the Secretary should pay annually simple interest, at the rate of 5 percent per annum upon such amounts remaining unpaid, beginning January 1, 1928, until paid; that all such payments should be made in accordance with such regulations as the Secretary might prescribe (but only out of the German special deposit account created by the Act); that payment should be made only to the person on behalf of whom the award was made, except that in the case of an assignment of an award, or an assignment (prior to the making of the award) of the claim in respect of which the award was made, by any such person, made in writing, *614 duly acknowledged, and filed with the application for payment, such payment should be made to the assignee; and that there should be deducted*119 from the amount of each payment, as reimbursement for the expenses incurred by the United States in respect thereof, an amount equal to one-half of 1 percent thereof. By agreement between the United States and Germany dated June 23, 1930 (League of Nations Treaty Series 106:121), it was agreed that Germany should pay and the United States should accept in full satisfaction of all of Germany's obligations remaining on account of the awards, including interest thereon, entered and to be entered by the Mixed Claims Commission, the sum of 40,800,000 reichsmarks for the period September 1, 1929, to March 31, 1930, and the sum of 40,800,000 reichsmarks per annum from April 1, 1930, to March 31, 1981. It was provided that, as evidence of this indebtedness, Germany would issue to the United States bonds dated September 1, 1929, and maturing serially on March 31, 1930, and each September 30 and March 31, thereafter up to and including March 31, 1981. It was provided that these obligations of Germany to the United States should cease as soon as all the payments contemplated by the Settlement of War Claims Act of 1928 had been completed and that the bonds not then matured should be canceled*120 and returned to Germany. Such bonds were not to bear interest except that if payment should be postponed beyond the due date interest should be payable at 5 percent. The United States agreed to accept the full faith and credit of Germany as the only security and guaranty for the fulfillment of Germany's obligations. These bonds were payable at the Federal Reserve Bank of New York for credit in the general account of the Treasurer of the United States. No payments were made by the German Government on account of any of these bonds maturing after September 30, 1931. As of November 9, 1931, the principal amount of the award in favor of Lucy Manufacturing Company was $ 71,893.83 and the amount of interest was $ 37,145.30. During the period November 9, 1931, through April 18, 1941, interest accrued on the principal of such award in the amount of $ 33,927.98. Interest continued to accrue thereafter. At a time not disclosed by the record Manufacturers Trust Company became trustee for the Lucy Manufacturing Company. At a judicial sale held on May 24, 1940, the petitioner, in conjunction with Frederick J. Wilkens and George R. Wagner, purchased from Manufacturers Trust Company an 85*121 percent interest in the award of the Mixed Claims Commission made in favor of Lucy Manufacturing Company. Such 85-percent interest was purchased in the name of Frederick J. Wilkens at a cost of $ 10, and the assignment was in his name only. Wilkens mailed such assignment to the Bureau of Accounts, *615 United States Treasury Department. Such Bureau acknowledged receipt of the assignment and retained it. The petitioner had a one-third interest in such 85-percent interest at all times pertinent herein. The petitioner's share of the total amount of principal and interest due on the award at the time of acquisition was approximately $ 39,500. On April 18, 1941, an amount of $ 3,594.69 was paid on the Lucy Manufacturing Company award leaving unpaid principal in the amount of $ 68,299.14 and interest in the amount of $ 71,073.28. During the period 1941 through 1952 an amount of $ 17,343.90 was paid with respect to such award from funds made available from the sale of German assets which were under the control of the Alien Property Custodian. On February 27, 1953, an agreement was entered into between the United States and the Federal Republic of Germany (4 U.S.T. 908) making *122 provision for the settlement of the remaining obligations of Germany for awards made by the Mixed Claims Commission on behalf of nationals of the United States. It was agreed that Germany should pay to the United States the total amount of $ 97,500,000 on behalf of the nationals of the United States, or their successors or assigns, whose Mixed Claims Commission awards remained unsatisfied, such payment to be made in 26 annual installments on April 1 each year at the Federal Reserve Bank of New York for credit in the general account of the Treasurer of the United States. It was provided that in the event of default upon any installment, interest was payable at 3 3/4 percent per annum until such installment was paid. It was agreed that, as evidence of such obligations, Germany would issue to the United States bonds dated January 1, 1953, maturing and payable serially each year up to and including April 1, 1978. These bonds were to be delivered to the Secretary of the Treasury and thereupon the United States was required to cancel and deliver to Germany certain of the bonds previously issued pursuant to the 1930 agreement, namely, those with maturity dates from September 30, 1931, *123 through March 31, 1943. The United States agreed to apply the payments made by Germany in reduction and satisfaction of the remaining indebtedness of Germany in respect of awards of the Mixed Claims Commission made on behalf of nationals of the United States. Neither these bonds nor the bonds issued pursuant to the 1930 agreement were issued with, or ever had, interest coupons attached. As of January 1, 1954, the 85-percent interest owned by the petitioner, Wagner, and Wilkens in the Lucy Manufacturing Company award consisted of unpaid principal in the amount of $ 55,479.05 and interest in the amount of $ 77,126.84. On June 7, 1954, an amount of $ 3,663.52 was credited by the Bureau of Accounts, United States Treasury Department, with respect to such 85-percent interest in such *616 award. The statement of account rendered by the Bureau of Accounts reflected such payment as being 4.75 percent of the interest then due in the amount of $ 77,126.84, reducing the interest due by that amount. The Bureau of Accounts paid such amount, less, however, one-half of 1 percent as reimbursement for expenses. On June 7, 1955, an amount of $ 4,521.42 was credited by the Bureau of Accounts*124 with respect to such 85-percent interest in such award. The statement of account rendered by the Bureau of Accounts reflected such payment as being 6 percent of the interest then due in the amount of $ 75,357.07, reducing the interest due by that amount. The Bureau of Accounts paid such amount, less the one-half of 1-percent charge. It was the practice of the Bureau of Accounts to advise all award-holders or assignees thereof when a distribution was about to be made, furnishing an affidavit form (Form 5MC) to be executed by the claimant as a prerequisite to payment. Therein the applicant was required to state whether there had been any change of circumstances affecting his right to receive additional payments on account of the award. In the event of an application for payment pursuant to an assignment of an award the applicant was required to fill out a supplement to the application for payment, showing the capacity of the applicant (as for example, as assignee), and it was required that there be attached evidence sufficient to prove the authority of the claimant and his interest in the award. It was provided that in the case of an assignment, the furnishing of the instrument*125 of assignment would generally be sufficient. At all times up to and including the years here in question payments with respect to the 85-percent interest in the award were made by the Bureau of Accounts to Frederick J. Wilkens since the assignment which had been furnished to the Bureau showed only him as the assignee. By letter of November 12, 1952, he addressed a letter to such Bureau advising that he was holding this interest in trust for himself, Wagner, and the petitioner in equal amounts, and inquired whether there was any method or procedure whereby an assignment might be made on the books of the Bureau in order that payments might be made directly to each of the three holders of the 85-percent interest. On November 26, 1952, the Bureau of Accounts acknowledged Wilkens' letter and stated that the request was receiving the attention of the legal division, but no further answer was made by the Bureau. On June 27, 1955, Wilkens again addressed a letter to the Bureau of Accounts requesting that the payments to be made on the 85-percent interest be divided into three equal parts and made payable to himself, Wagner, and the petitioner. In such letter, he stated: *617 I *126 hereby request, authorize and direct that the aforesaid three-way split-up and payment on the 85% interest be made effective immediately, and that this authorization remain on file and be irrevocable. By letter of July 25, 1955, the Treasury Department, Fiscal Service, acknowledged Wilkens' letter of June 27, 1955, and therein stated: It is assumed that you intend this letter to have the effect of an assignment and, in the circumstances, the Treasury Department is willing to regard it as such and will place it on file for consideration at the time the next distribution is made on account of these awards. Before any payment may be made pursuant to this assignment, however, it will be necessary for each of the three assignees to execute a supplemental application for payment on the enclosed form. On October 23, 1957, the petitioner sold his interest in the 85-percent interest in the Lucy Manufacturing Company award for $ 11,392.05. In the confirmation of sale the purchaser made the notation "Subject to Treasury Dept final clearance of assignment." It has been stipulated that this meant that the purchaser would wait to pay the purchase price to petitioner until it was determined that*127 he had true title to transfer. The petitioner's share of the payments made on June 7, 1954, and June 7, 1955, were $ 1,215.07 and $ 1,499.60, respectively. He reported such amounts in his 1954 and 1955 Federal income tax returns as long-term capital gains. The respondent determined that such amounts constituted ordinary income. OPINION. The petitioner contends that the amounts of $ 1,215.07 and $ 1,499.60 received by him in the taxable years 1954 and 1955, respectively, from the Bureau of Accounts, Treasury Department, pursuant to his interest in the Mixed Claims Commission award constitute capital gain, rather than ordinary income as determined by the respondent. He relies upon section 1232 of the Internal Revenue Code of 1954. 1 For the purpose of a proper understanding of the facts, we have, in the Findings of Fact, included summaries of the pertinent provisions of the agreements entered into between the United States and Germany with respect to the payment of awards of the Mixed Claims Commission and the pertinent provisions of the Settlement of War Claims Act of 1928 as amended. *128 *618 The petitioner's position is that when he acquired his interest in the award he acquired a capital asset which included not only the interest in the award itself, but also an interest in the bonds issued by Germany to the United States pursuant to the 1930 agreement between the two Governments, and that later he acquired an interest in 26 bonds with a total face value of $ 97,500,000 issued by Germany pursuant to the 1953 agreement between the two Governments in exchange for the defaulted bonds under the prior agreement. He claims that both the award and the bonds constitute "other evidences of indebtedness" issued by a government or political subdivision thereof within the meaning of section 1232 and that both are in registered form within the meaning of the statute. He therefore contends that the amounts which he received should be considered as being in retirement of the type of evidences of indebtedness referred to in section 1232 and therefore long-term capital gain. The respondent argues, among other things, that the payments in question were in reality payments of interest on the award and that as such they must be treated as ordinary income. The Bureau of Accounts*129 of the Treasury Department designated these payments as payments of interest which reduced the interest accumulated up to the times of payment. The petitioner contends that inasmuch as the total payments which he had received pursuant to the award, including the payments in question (a total of about $ 8,500), did not aggregate as much as his share of the principal amount of the award plus accumulated unpaid interest at the time of purchase (a total of about $ 39,500), the payments in question should not be treated as interest income, but, rather, should be treated as payment of the obligation which he purchased, which was a capital asset. He cites Estate of Hamilton C. Rickaby, 27 T.C. 886">27 T.C. 886, and Campbell v. Sailer, (C.A. 5) 224 F.2d 641">224 F.2d 641, affirming a District Court decision. In each of those cases it clearly appeared that the amounts in question constituted payments of interest which had accrued prior to the time of purchase "flat" by the respective taxpayers of bonds or notes, and it was held that such payments were not to be treated as ordinary income but as capital gain, since the right to receive such interest, *130 which the taxpayer had purchased, was a capital asset. 2 On the other hand, it has been held that payments of interest which accrued after the purchase of bonds or notes "flat" constitute ordinary income. See Allen Tobey, 26 T.C. 610">26 T.C. 610; National City Lines, Inc. v. United States, 197 F.2d 754">197 F.2d 754; and Adrian & James, Inc., 4 T.C. 708">4 T.C. 708. In the instant case the Bureau of Accounts treated the payments made in 1954 and 1955 as being in reduction of the total accumulated *619 unpaid interest, without designation as to whether the payments were to be applied in satisfaction of any interest accrued or accumulated for any period prior to the time the petitioner acquired*131 his interest in the award. We think that it is unnecessary to decide whether the payments constituted interest accrued after the petitioner purchased his interest in the award since, in our opinion, even if they constituted payments of the principal amount of the award or of interest which had accrued and was unpaid at the time the petitioner purchased his interest, they must be considered as ordinary income. Section 1232(a)(1) of the Internal Revenue Code of 1954 has reference to bonds, debentures, notes, or certificates or other evidences of indebtedness issued by a corporation or government or political subdivision thereof with interest coupons or in registered form. Here the payments in question were payments made pursuant to awards of the Mixed Claims Commission representing the liability of Germany for damages or losses resulting from World War I. As such they do not partake of the nature of evidences of indebtedness referred to in the statute. It cannot be said that Germany, as the debtor, "issued" such awards. Among the several arguments advanced by the petitioner are these: That the Government of the United States acted as agent or alter ego of the German Government in*132 making payment of the awards; that the awards were akin to "certificates," indicating the extent of the awardholder's interest in the bonds issued by the German Government to the United States; that the Bureau of Accounts required "registration" of the awards; and that as payments were made by the Bureau of Accounts they constituted payment of the individual awardholder's interest in such bonds. Suffice it to say that we think it clear that the United States was not acting as agent or alter ego of the German Government. It was acting, in its governmental capacity, on behalf of all the awardholders in receiving aggregate payments from Germany and making proper disbursement thereof in accord with the awards of the Mixed Claims Commission. Accordingly, it cannot be said that any procedure which the Bureau of Accounts set up for payment was done as agent of the German Government. 3*134 We also think it clear that payments made by the Bureau of Accounts to awardholders may not properly be considered as payment of the bonds which were issued by Germany. Such bonds were not issued to the awardholders, *620 but were issued to the United States as obligee and evidenced the obligation*133 of Germany to pay to the Government of the United States an aggregate amount in settlement of all awards. The fact that these bonds were issued to the Government of the United States does not alter the fact that the payments which the awardholders actually received were payments pursuant to the award. 4 Such payments received by awardholders were not in retirement of any bonds issued by the German Government to them. Since, as we have concluded, the payments in question were not payments in retirement of any evidence of indebtedness of any government or political subdivision thereof in registered form, and since there was no sale by the petitioner of his interest in the award, it follows that the amounts received may not be considered as capital gain. See Edna S. Ullman, 34 T.C. 1107">34 T.C. 1107. The determination of the respondent is approved. Decision will be entered for the respondent. Footnotes

2021-01-27 01:00:39.886977+00

http://www.ca5.uscourts.gov/opinions/unpub/20/20-10436.0.pdf

Case: 20-10436 Document: 00515721174 Page: 1 Date Filed: 01/26/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 26, 2021 No. 20-10436 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Abel Fernando Padilla, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CR-375-1 Before Jones, Barksdale, and Stewart, Circuit Judges. Per Curiam:* Abel Fernando Padilla pleaded guilty, pursuant to a written plea agreement, to possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At arraignment, the district court deferred deciding whether to accept the plea agreement, stating: “If later on I get * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-10436 Document: 00515721174 Page: 2 Date Filed: 01/26/2021 No. 20-10436 some information that causes me to think that the Plea Agreement should be rejected, and if I, in fact, do reject it, I’ll make that known to you and the attorneys in the case and give you an opportunity to withdraw a plea of guilty”. At sentencing, however, the court did not explicitly reject or accept the agreement. Moreover, Padilla did not attempt to withdraw his guilty plea. He was sentenced to, inter alia, an above-Sentencing Guidelines term of 120 months’ imprisonment. Padilla contends the court erred by implicitly rejecting the plea agreement without giving Padilla a chance to withdraw it. Because Padilla did not raise this issue in district court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537 , 546 (5th Cir. 2012). Under that well-known standard, Padilla must show a forfeited plain error (clear or obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129 , 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. (alteration in original). Regarding whether there was the requisite clear or obvious error, Federal Rule of Criminal Procedure 11 states: “If the court accepts the plea agreement, it must inform the defendant that . . . the agreed disposition will be included in the judgment”. Fed. R. Crim. P. 11(c)(4). Likewise, if the court rejects a plea agreement, it must “advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea”. Fed. R. Crim. P. 11(c)(5)(B). As noted, the district court did neither when, by the plain language of Rule 11, it 2 Case: 20-10436 Document: 00515721174 Page: 3 Date Filed: 01/26/2021 No. 20-10436 was clear and obvious that it was required to do one of the two. See, e.g., United States v. Morales-Sosa, 191 F.3d 586 , 587 (5th Cir. 1999). To determine whether a Rule 11 error affects defendant’s substantial rights, “we focus on whether the defendant's knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty”. United States v. Johnson, 1 F.3d 296 , 302 (5th Cir. 1993) (en banc). Had the court rejected the plea agreement, it may have been likely to affect Padilla’s willingness to plead guilty, because he might have withdrawn his guilty plea. If, however, the court had accepted the agreement, the Rule 11 error would not affect Padilla’s substantial rights, because there is no indication Padilla would have withdrawn his guilty plea if he knew the plea agreement would be accepted. Next addressed is whether the court accepted the plea agreement. Our court has held that a district court can implicitly accept a plea agreement. Morales-Sosa, 191 F.3d at 587 . In Morales-Sosa, this court held that, because the district court did not explicitly reject the plea agreement and defendant received the benefit of the plea, the court implicitly accepted the agreement. Id. The court never explicitly rejected the plea agreement, and Padilla received the benefit of that agreement. In that regard, the only promise Padilla received from the Government was that it would not bring any additional charges against him based upon the same underlying conduct. Padilla asserts there are charges that hypothetically could be brought in the future if the Government ignored the plea agreement. This, however, is pure speculation, as no such charges have been brought. The district court, therefore, implicitly accepted the plea agreement. AFFIRMED. 3

2020-09-04 23:00:52.73229+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv1996-78

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, No. 20-cv-1996 (DLF) v. ELISABETH D. DEVOS, et al., Defendants. MEMORANDUM OPINION In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Pub. L. No. 116-136, 134 Stat. 281 (2020) (to be codified as 20 U.S.C. § 3401 note). As part of its comprehensive relief effort, the CARES Act appropriated billions of dollars in funding for elementary and secondary schools across the nation. See CARES Act § 18001. A few months later, the Department of Education interpreted those funding provisions in an Interim Final Rule. 85 Fed. Reg. 39,479 (July 1, 2020). This suit soon followed. Before the Court is the plaintiffs’ motion for preliminary injunction or, in the alternative, summary judgment, Dkt. 36, which the Court considers as an expedited motion for summary judgment pursuant to Federal Rule of Civil Procedure 65(a)(2). For the reasons that follow, the Court will grant the motion. I. BACKGROUND A. Statutory Framework In response to the ongoing global pandemic of 2020, Congress passed a comprehensive relief effort known as the CARES Act. Pub. L. No. 116-136, 134 Stat. 281 (2020). The CARES Act appropriated billions of dollars to aid schools through the challenges of the pandemic. See CARES Act § 18001. The Act did so through three sub-funds, two of which are relevant here. The first, the Governors’ Emergency Education Relief Fund (GEER), provides governors with discretion to distribute funding to the Local Education Agencies (LEAs) that need it most. Id. § 18002. The second, the Elementary and Secondary School Emergency Relief Fund (ESSER), directs the Department of Education to disburse funds to each state. Each state then disburses funds to its LEAs, which pass on funding to schools pursuant to a specific formula. Id. § 18003. Unlike the GEER fund (and other CARES Act sub-funds), the ESSER fund leaves no room for discretion as to which LEAs or schools receive funding. Rather, it dictates that the funds “shall be allocated by the Secretary to each State in the same proportion as each State received under part A of title I of the [Elementary and Secondary Education Act (ESEA)] of 1965 in the most recent fiscal year.” Id. (emphasis added). The Act also dictates how certain private schools may receive GEER and ESSER funding. It states that any “local educational agency receiving funds . . . shall provide equitable services in the same manner as provided under § 1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in consultation with representatives of non-public schools.” Id. § 18005. Thus, the Act incorporates by reference a different statute, which in turn describes, among other things, the formula for how funds should be divided between public and private schools. See 20 U.S.C. § 6320(a)(4)(A)(i) (§ 1117 of the ESEA). The referenced provision states: “Expenditures for educational services and other benefits to eligible private school children shall be equal to the proportion of funds allocated to participating school attendance areas based on the number of children from low-income families who attend private schools.” Id. These provisions are the subject of this litigation. 2  B. Regulatory Background In April 2020, the Department of Education issued guidance about CARES Act funding for private schools. Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs, https://oese.ed.gov/files/2020/06/Providing-Equitable- Services-under-the-CARES-Act-Programs-Update-6-25-2020.pdf (Apr. 30, 2020). The Department advised that the GEER and ESSER funds should be used to “serve all non-public school students and teachers without regard to family income, residency, or eligibility based on low achievement.” Id. at 3 (emphasis added). The Department made this position binding in July 2020, when it issued an interim final rule to the same effect. See 85 Fed. Reg. 39,479. In its explanation, the Department reasoned that the relevant text of the CARES Act was ambiguous and that its interpretation was reasonable in light of the text, structure, and purpose of the CARES Act. It ultimately announced: “We have concluded the phrase ‘in the same manner as provided under section 1117’ does not simply mean ‘as provided under section 1117.’” Id. In other words, the Department does not read the CARES Act to require that funds be disbursed pursuant to the formula outlined in § 1117 of the ESEA. Rather, it contends that all private schools are entitled to equal relief funding as public schools, regardless of low-income student population. Id. The Department thus declared that LEAs have “two options” under the Act. See 85 Fed. Reg. 39,482. They can either disburse funds equally between all public schools and all private schools or disburse funds based on low-income student population for both public and private schools. Id. Either way, the Department interprets the CARES Act to forbid differentiation between public and private schools. See id. 3  Although the Department engaged in rulemaking to issue its interim final rule, the CARES Act does not vest the Department with rulemaking authority. See generally CARES Act §§ 18001–18005. The Department thus rested its authority to issue the interim final rule on its general rulemaking powers to administer programs under its purview. See 85 Fed. Reg. 39,481. Further, the Department issued the interim final rule without engaging in notice and comment rulemaking. See 85 Fed. Reg. 39,484 (“Waiver of Proposed Rulemaking”). Instead, the Department opened a post-issuance comment period of thirty days. Id. To justify foregoing the usual rulemaking process, the Department cited the Administrative Procedure Act (APA) exception for good cause, finding that notice and comment was “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. § 553(b)(B), given the exigencies of the global pandemic. Id. C. Procedural History The plaintiffs—advocacy groups, public school districts, and parents of children who attend public schools—brought this suit on July 22, 2020. 1 Dkt. 1. On August 11, 2020, the plaintiffs moved for a preliminary injunction or, in the alternative, summary judgment. Dkt. 36. After providing notice and considering the parties’ respective positions during a status hearing, the Court consolidated the preliminary injunction motion into an expedited motion for summary 1 At the time of this writing, two other federal district courts have granted preliminary injunctions enjoining the Department’s interim final rule. See Michigan v. DeVos, No. 3:20-cv- 04478, ECF No. 82 at *7 (N.D. Cal. Aug. 26, 2020) (“The Department went well beyond its statutory authority by trying to replace the share formula mandated by Congress in Section 18005(a) with one of its own choosing.”); Washington v. DeVos, No. 2:20-cv-1119, 2020 WL 4922256 (W.D. Wash. Aug. 21, 2020) (holding that “Congress neither explicitly, nor implicitly by ambiguity, granted the Department the authority to promulgate the Interim Final Rule”). 4 judgment under Federal Rule of Civil Procedure 65(a)(2).2 See Univ. of Tex. v. Camenisch, 451 U.S. 390 , 395 (1981) (“[T]he parties should normally receive clear and unambiguous notice [of the court’s intent to consolidate] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.”). In this expedited motion, the plaintiffs assert four claims, each of which presents a pure question of law: first, whether the Department’s actions are ultra vires, in violation of the separation of powers; second, whether the Department’s interim final rule violates the Spending Clause, U.S. Const. art. I, § 8; and third and fourth, whether the Department’s actions violate the APA as an agency action not in accordance with law or in excess of statutory authority, 5 U.S.C. § 706(2)(A), (C). In short, plaintiffs primarily contend that (1) the Department did not have authority to issue the interim final rule, and (2) the interim final rule the Department did issue was contrary to the CARES Act. II. LEGAL STANDARD Summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 247–48 (1986). A fact is “material” if it has the potential to change the substantive outcome of the litigation. See id. at 248; Holcomb v. Powell, 433 F.3d 889 , 895 (D.C. Cir. 2006). And a dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See Anderson, 477 U.S. at 248 ; Holcomb, 433 F.3d at 895 . 2 Although the plaintiffs styled their reply brief as a motion for partial summary judgment, see Pl’s Reply, Dkt. 64, the Court treats the motion as a motion for summary judgment because a ruling on the claims addressed in the motion resolves the case. 5  In a case reviewing agency action, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). “[T]he entire case . . . is a question of law” and the district court “sits as an appellate tribunal.” Am. Biosci., Inc. v. Thompson, 269 F.3d 1077 , 1083 (D.C. Cir. 2001) (internal quotation marks and footnote omitted). III. ANALYSIS The APA instructs courts to “hold unlawful and set aside agency action” that is in excess of statutory authority or “not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). Plaintiffs contend that the Department’s interim final rule violates the APA on both grounds and should be “set aside” accordingly. Id. The Court agrees. The interim final rule is contrary to the unambiguous mandate of the Act. And the Act provides neither express rulemaking authority nor any ambiguity for the agency to clarify. For these reasons, the rule must be “set aside.” Id. A. The Department’s Interim Final Rule When an agency’s interpretation of a statute is at issue, the two-step Chevron test applies. See Holland v. Nat’l Mining Ass’n, 309 F.3d 808 , 815 (D.C. Cir. 2002) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). First, the Court determines whether the statute is ambiguous. See Chevron, 467 U.S. at 843 n.9. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. That means that if the text of the statute is clear, the inquiry finds its end. If the statute is ambiguous, on the other hand, the question 6 becomes whether the agency’s interpretation is a reasonable one. Holland Mining, 309 F.3d at 815 . If the agency’s interpretation is reasonable, it is entitled to deference. Id. A court’s “task is to construe what Congress has enacted. [A court] begin[s], as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167 , 172 (2001). The statute states: “A local educational agency receiving funds under sections 18002 or 18003 of this title shall provide equitable services in the same manner as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public schools, as determined in consultation with representatives of non-public schools.” CARES Act § 18005 (emphasis added). In some statutory interpretation cases, courts must make sense of vague terms, contradictory provisions, or “inartful drafting.” King v. Burwell, 576 U.S. 473 , 491 (2015). This is not one of those cases. In describing the funding mechanism for the GEER and ESSER sub- funds, Congress spoke with clarity and precision. It used mandatory language, cross-referenced a statutory provision by section number, and left no term up to interpretation. The statute commands that the LEAs shall distribute funds in the manner specified. CARES Act § 18005. And it specifies that manner by cross-referencing § 1117 of the ESEA by name. Id. “[A] statute that refers to another statute by specific title or section number in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted.” Jam v. Int’l Fin. Corp., 139 S. Ct. 759 , 769 (2019). Section 1117 of the ESEA likewise clearly describes a particular formula for providing equitable services to private schools—one based on the number of children from low-income families. See 20 U.S.C. § 6320(a)(4)(A)(i). Throughout these provisions, Congress used ordinary language in its ordinary sense. “In the same manner” means “to use the same methodology and procedures.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 , 545–46 (2012) (internal quotation marks omitted). Thus, 7 providing equitable services “in the same manner” as § 1117 means to use the same methodology and procedures described in § 1117—the formula that accounts for the number of children from low-income families. Section 8501, another provision of the ESEA, confirms as much. It provides equal funding to private and public schools without accounting for income. See 20 U.S.C. §§ 7881(a)– (b). Had Congress intended to permit the equal-funding formula the Department adopted in its interim final rule, it could have easily done so by referencing § 8501 in the CARES Act. Instead, however, Congress chose to reference § 1117. In doing so, Congress expressed a clear and unambiguous preference for apportioning funding to private schools based on the number of children from low-income families, even though the Department’s chosen alternative of equal funding was readily available at the time of drafting. In the end, it is difficult to imagine how Congress could have been clearer. The Department’s arguments to the contrary do not change this straightforward conclusion. The Department first contends that the term “equitable services” is ambiguous and that its interpretation is reasonable. In isolation, it might be true that “equitable” is an ambiguous term. But the Act does not use the term in isolation. It does not say that funds should be disbursed in an equitable manner without further explanation. Quite the opposite, the Act directs a specific formula for providing “equitable services”—the one described in § 1117 of the ESEA. Nonetheless, the Department found the provision ambiguous and substituted its own “expert judgment” for the kind of policy it deemed equitable. Defs.’ Opp’n at 11, Dkt. 46; see id. (“The Department determined that it is inequitable to apportion expenditures for private schools on the basis of low-income students residing in Title I-A school attendance areas when public school districts may use their share of CARES Act funds to benefit all schools and 8 students.”). Although some might agree with the Department’s position as a matter of policy, “[a]n agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 , 325 (2014). In its interim final rule, the Department also argued that § 18005(a) as a whole is “facially ambiguous.” 85 Fed. Reg. 39,481. It noted that “Congress did not need to add the words ‘in the same manner’ if it simply intended to incorporate ‘section 1117 of the ESEA of 1965’ by reference in the CARES Act. The unqualified phrase ‘as provided in’ alone would have been sufficient.” Id. But simply because Congress could have been clearer, that alone does not render an unambiguous text ambiguous. In any case, it is not at all obvious how the Department’s proposed revision of “as provided in” is any clearer than Congress’s chosen words of “in the same manner as provided under.” See Nat’l Fed’n of Indep. Bus., 567 U.S. at 545 –46 (interpreting “in the same manner” to mean “the same methodology and procedures.”). The Department also relies on purposive arguments. It posits that the purpose of the CARES Act is “to provide emergency relief to all students and schools,” Opp’n at 9 (emphasis added), while the purpose of Title I-A is “to provide services to low-achieving students.” Id. Because these purposes are “disparate,” the Department reasons, it cannot be the case that Congress intended to incorporate § 1117’s formula for providing equitable services. Id. But even if purposive arguments could overcome the plain text of the statute, which they cannot, the purpose of the CARES Act is not so clear-cut. Indeed, the text of the CARES Act itself calls for “[a]ctivities to address the unique needs of low-income children or students.” CARES Act § 18003(d)(4). Finally, the Department makes an argument based on the statute’s structure. It argues that “section 1117—and the ESEA more broadly—cannot be imported into the CARES Act 9 scheme in ‘mechanistic’ fashion.” Opp’n at 8. The Department’s principal support for this point is that certain provisions in § 1117 of the ESEA (other than the formula for how to provide equitable services) are superfluous with other sections of the CARES Act. See Opp’n at 9 (noting that “two of § 18005’s provisions are substantively identical to two provisions in § 1117”). For example, § 1117 of the ESEA includes a provision requiring public schools to consult with private schools about equitable services, much like the CARES Act. Compare CARES Act § 18005(a), with 20 U.S.C. § 6320(b). So too, both statutes contain language about public schools retaining control over funds. Compare CARES Act § 18005(b), with 20 U.S.C. § 6320(d). The Department reasons that “[i]f the CARES Act’s use of the phrase ‘in the same manner’ incorporated every jot and tittle of section 1117, both the consultation and the public- control provisions of § 18005 would be superfluous.” Opp’n at 9. While it is true that courts generally avoid giving a statute a meaning that would render parts of the text superfluous, “the rule against giving a portion of text an interpretation which renders it superfluous does not prescribe that a passage which could have been more terse does not mean what it says.” Bruesewitz v. Wyeth LLC, 562 U.S. 223 , 236 (2011). “Redundancy is not a silver bullet. . . . Sometimes the better overall reading of the statute contains some redundancy.” Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873 , 881 (2019). And the plain reading of § 18005 is that it incorporates the formula described in § 1117 for distributing equitable services by the number of children from low-income families. B. Plaintiffs’ Remaining Arguments Plaintiffs raise one additional statutory argument. They contend that the Department exceeded its delegated authority by promulgating the interim final rule. 10  Although Congress explicitly granted other agencies rulemaking authority in the text of the CARES Act, see, e.g., CARES Act §§ 1114, 3513(f), 12003(c), there is no question that Congress did not vest the Department with express rulemaking authority, see id. §§ 18001– 18005; Opp’n at 10 & n.4. Thus, the Department based its authority on its general rulemaking powers, see 85 Fed. Reg. 39,481: first, the power to make rules “governing the applicable programs administered by[] the department,” 20 U.S.C. § 1221e-3; and second, the power to make rules “as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department.” 20 U.S.C. § 3474. Of course, “[a]n agency’s general rulemaking authority does not mean that the specific rule the agency promulgates is a valid exercise of that authority.” Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134 , 139 (D.C. Cir. 2006). “Agencies are . . . bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.” Id. And neither of the general rulemaking authority provisions provides support for the Department’s actions here. As discussed above, § 1117 is not ambiguous. It left no gaps for the agency to fill and thus delegated no implicit authority to the Department. After all, the GEER and ESSER sub-funds are not “programs” administered by the Department. See 20 U.S.C. § 1221e-3. The sub-funds, in contrast to other CARES Act provisions, provide the Secretary with no discretion as to disbursement or any other programmatic decisionmaking. Rather, they simply direct that the Secretary shall allocate funds in the same proportion and in the same manner as the cross-referenced ESEA statute. CARES Act §§ 18003, 18005. By contrast, other provisions of the CARES Act (which are not at issue in this case) do provide the Secretary with discretion. In the sub-fund for higher education 11 (HEER), for example, Congress appropriated 2.5% of the funds for the institutions that the Secretary determines have the greatest unmet needs. See id. § 18004(a)(3). Congress knew how to delegate programmatic authority to the Secretary when it wanted to and chose not to do so here. Further, the rulemaking was neither “necessary” nor “appropriate” to “manage the functions of the Secretary or the Department,” 20 U.S.C. § 3474. The interim final rule was not “necessary” to accomplish the statute’s unambiguous directive—indeed, it went far beyond that directive by interpreting the statute to require a different formula. The Department “cannot rely on its general authority to make rules necessary to carry out its functions when a specific statutory directive defines the relevant functions . . . in a particular area.” Am. Petrol. Inst. v. EPA, 52 F.3d 1113 , 1119 (D.C. Cir. 1995). Because the Act is not ambiguous and did not otherwise delegate rulemaking authority, the Department acted beyond its authority in promulgating the interim final rule. In addition to the statutory arguments discussed above, Plaintiffs raise two constitutional arguments. They contend that the interim final rule violates the Spending Clause and the separation of powers. See Pl.’s Mem. at 14, 22, Dkt. 36-1. Because plaintiffs’ statutory claims fully resolve this motion, the Court need not reach these constitutional questions. The plaintiffs also bring two additional APA claims in their amended complaint: an arbitrary and capricious challenge and a challenge to the Department’s invocation of the “good cause” exception to notice-and-comment rulemaking. See Am. Compl. ¶¶ 107–23, Dkt. 35. Because these claims do not present pure questions of law and the Department has not yet produced an administrative record, they were not consolidated into the expedited motion for summary judgment. See Pl’s Reply at 2. The remaining APA claims will be moot following this grant of summary judgment. 12 See Unofficial Transcript at 4:3–7 (plaintiffs acknowledging that none of their remaining claims would survive if the rule were vacated). *** In enacting the education funding provisions of the CARES Act, Congress spoke with a clear voice. It declared that relief funding shall be provided to private schools “in the same manner as provided under section 1117.” CARES Act § 18005. Contrary to the Department’s interim final rule, that cannot mean the opposite of what it says. “The authority to issue regulations is not the power to make law, and a regulation contrary to a statute is void.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697 , 703 (D.C. Cir. 2009). It is long-settled that “[a] regulation which . . . operates to create a rule out of harmony with the statute, is a mere nullity.” Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129 , 134 (1936). Thus, the Department’s interim final rule, which conflicts with the unambiguous text of the statute, is void. See 5 U.S.C. § 706(2)(A), (C); see Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399 , 1409 (D.C. Cir. 1998) (“[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”). CONCLUSION For the foregoing reasons, the plaintiffs’ motion for summary judgment is granted. A separate order consistent with this decision accompanies the memorandum opinion. ________________________ DABNEY L. FRIEDRICH United States District Judge September 4, 2020 13

2020-01-17 22:02:01.996978+00

Love

*574OPINION. Love: The sole question for our consideration in this proceeding is whether or not the decedent was a resident of the United States at the time of his death. The primary factor on such an issue is the decedent’s intention. The respondent’s position, it appears from the record and his brief, is that he having made a determination that the decedent was a nonresident at the time of death, the burden is upon the petitioner herein to overcome the prima facie correctness of that determination. So far we can agree. But while the respondent stresses the absence of direct written or oral declarations of the petitioner’s intention to retain his American residence, he also objects to the admission of such declarations in evidence, when they do appear, as in the will, on the ground that they are self-serving. We believe, however, that the decedent’s actions, considered in the light of his circumstances and with regard to what we consider his natural interests, indicate his intentions and constitute the best evidence of which the issue is by its nature susceptible. Moreover, the declaration in the will constitutes, as of the date of same, very weighty evidence of his intention. Before the death of the first Mrs. Dell she and the decedent had traveled extensively. Their home at Morristown had been disposed of. Upon her death he became possessed of large means. He had long been retired from business and was accustomed to travel. Golf was his hobby, but, like many others not so fortunately circumstanced, he found rheumatic attacks limited his enjoyment of the game. With his ample means we think it in no wise inconsistent with an intention to retain an American residence that he should roam the resorts and putting greens of first America and then Europe in search of comfort and golf. He did this, but, so far as the record reveals, he lost no American contacts thereby. ITis financial affairs were in the United States, his children and grandchildren were here, here were his old friends and counselors, and here he desired to be buried. In 1920 he bought a small villa on the edge of a golf course at Gagnes, where he could step off his own property onto a putting green and where if his condition forbade play he could at least watch others do so. He married again and thereafter spent most of his winters at the villa. But before his second wife’s health failed he brought her to Hew York, where he again lived at the Plaza. It was during this period that he executed his will and in it declared his residence as Hew York. His income-tax returns had long been filed on that basis. *575In 1924 he again came to New York and lived for a time at the Plaza. After his return to France the health of his wife and her mother failed and he lived for a time with a son who was then in Paris. He died suddenly at Gagnes in March, 1925. We are of the opinion that the decedent did not by any action recounted exhibit an intention to abandon his American residence and that it was his intention to retain the same. We find therefore that he was a resident of the United States at the time of his death March 8, 1925. See Union Trust Co. of Cleveland, Ohio, Executor, 5 B. T. A. 1272. The petitioner’s contention that the tax has been overpaid is dependent upon computation of the tax due in event he is successful in this proceeding. We have no evidence upon this point. It appears, however, that the matter should be adjusted upon rede-termination. Judgment will be entered under Bule 50.