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A repository for legal stuff relating to or involving Jehovah's Witnesses that doesn't warrant its own thread.
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Expatbrit
Court: U.S. Court of Appeals, Second Circuit.
Year: 1993
Summary: Jehovah's Witness sues after being fired from his job as a policeman for not carrying a firearm
------------------------------------------------------------------------------ UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 1400 -- August Term 1992
(Argued: April 23, 1993 Decided: )
Docket No. 92-9370
-------------------------------------------------X
DONALD A. MINER,
Plaintiff-Appellee
-v.-
CITY OF GLENS FALLS,
Defendant-Appellant,
GLENS FALLS POLICE DEPARTMENT; BOARD OF
PUBLIC SAFETY OF THE CITY OF GLENS FALLS;
FRANCIS X. O'KEEFE, as Mayor of the City of
Glens Falls; JAMES DUGGAN,
Defendants.
-------------------------------------------------X
Before: PRATT and JACOBS Circuit Judges, and KNAPP, District Judge.*
Appeal from a judgment of the United States District Court for the Northern District of New York (Munson, J.), awarding damages on a police officer's claim, under 42 U.S.C.§1983, that his employment was terminated without due process of law.
Affirmed.
STEPHEN U. TEITELBAUM, Albany, NY for Plaintiff-Appellee.
JOSEPH R. BRENNAN, Glens Falls, NY (McPhillips, Fitzgerald & Meyer, New York, NY, of Counsel) for Defendant-Appellant.
JACOBS, Circuit Judge:
Plaintiff-appellee Donald Miner, a former police officer in the City of Glens Falls, New York, brought this action pursuant to 42 U.S.C. § 1983 (1988) asserting a claim for the alleged deprivation of his property interest in his job without due process of law. Miner was discharged, without a hearing, after he formed a religious scruple against carrying a firearm. The United States District Court for the Northern District of New York (Munson, J.) granted summary judgment in Miner's favor on the issue of liability, and awarded monetary damages in an amount to be determined by bench trial. Following the damages trial, the district court entered its decision and order, dated November 12, 1992, awarding damages to compensate Miner for his lost wages, lost pension benefits and emotional distress, together with attorney's fees, pre-judgment interest and costs. It is the latter determination, regarding damages, that the City of Glens Falls (the "City" or "Glens Falls") challenges on appeal.
On appeal, Glens Falls argues that Miner would have been fired even if the City had conducted a hearing and that Miner therefore is entitled only to nominal damages for the denial of his right to due process and is not entitled to any recovery for lost wages, lost pension benefits or emotional distress. In other words, the City contends that Miner failed to meet his burden of proving that the deprivation of his due process rights was the cause of his termination. The City also contests the award of pre-judgment interest. For the reasons that follow, we affirm the district court's award.
BACKGROUND
A. City Government
Under the City Charter, the Glens Falls Board of Public Safety (hereinafter sometimes the "Board") has "custody and management, including disposition and discipline," of the Glens Falls Police Department, and has the power and obligation to "prescribe the duties, ordain, promulgate and enforce proper rules, regulations and orders for the good government and discipline" of the Department. The six members of the Board of Public Safety are appointed to three-year terms by the Mayor, who occupies the seventh seat ex officio, and serves as chairman. The Mayor, as the City's chief executive officer, has the power "to call out and command" the police. The Mayor has no authority to dismiss a police officer, although the Glens Falls Charter confers upon the Mayor the power to suspend any City employee, "upon charges being preferred," until the Board "shall convene and take action in the matter, providing however, that such person shall not remain so suspended for a period longer than fifteen days, without an opportunity of being heard in his defense."
B. Miner's Discharge
For twenty years beginning in 1966, Donald Miner was employed by the Glens Falls Police Department. In 1979, Miner became a Jehovah's Witness and, in 1983, Miner formed the conviction that he could not work in any capacity that might require him to take the life of another human being or to carry or use a firearm. Miner understood, however, that he could not disobey the lawful order of a superior, and he concluded that if given a direct order to carry a gun he would be compelled to resign from his job.
At the time Miner formed his conviction not to carry a firearm, the Board of Public Safety adopted "Resolution 11", which reassigned Miner, by then a line sergeant, to the staff position of Training Officer. As Training Officer, Miner was required to assist Police Chief James Duggan in the exercise of his managerial responsibilities; Miner was not required to carry or use a weapon. Approximately two years later, in 1985, Chief Duggan removed Miner from this position (a seemingly unauthorized derogation of Resolution 11) and re-assigned him to line sergeant's duty, on the midnight shift. Duggan, who was aware of Miner's religious convictions, did not order Miner to carry a firearm.
On December 31, 1985, the Board passed "Resolution 50" requiring that all police personnel carry firearms at all times while on duty. At no time, however, did Chief Duggan order Miner to carry a firearm. (In fact, Duggan himself did not carry a firearm at all times while on duty.) Rather, after Resolution 50 was adopted, Duggan permitted Miner to remain with the police force through May or June of 1986 to enable him to complete 20 years of service and thereby increase his pension. Duggan also told Miner that if he would thereafter resign from the Police Department he would be offered a civilian job. Miner, who at this time was not carrying a gun and had not been ordered to do so, came to believe that the Board--which had recommended that Miner continue working without a gun so that he could complete his 20 years with the police force--might indefinitely waive the firearm requirement in his case. In any event, Miner decided that he would not resign unless Duggan's offer of continued employment was presented in writing. No such written offer was made, and Miner did not resign.
On July 7, 1986, the Board adopted "Resolution 34" authorizing Mayor Francis O'Keefe to inform Miner that his "present position" with the police department would be "abolished" on August 31, 1986. The Mayor, in turn, sent Miner two essentially identical letters, thanking Miner for his dedication to the Police Department over many years of service and notifying him that, pursuant to Resolution 34, his "status" would be "terminated" as of August 31, 1986: "The reason for this action is as outlined in Resolution #50, December 31, 1985 requiring all Police to carry firearms. You have refused to carry a weapon, mainly, I believe, because of your religious beliefs."
Despite the Mayor's letters to him, Miner insisted that the Board itself did not intend that he be dismissed from the police force. Miner perceived that Resolution 34, which abolished his "present position", was ambiguous because the last Board resolution addressing Miner's status had assigned him to the "position" of Training Officer. Miner therefore believed that Resolution 34 had abolished the position of Training Officer without affecting his position as line sergeant. Since the Mayor's letter presumed that the Board did intend to fire Miner, and since Miner disagreed, Miner asked Mayor O'Keefe for the opportunity to address the Board of Public Safety. Mayor O'Keefe denied the application without informing the Board that Miner requested a hearing. In this manner Miner was discharged.
Miner promptly filed an unemployment insurance claim. Benefits were granted upon a finding by the New York State Department of Labor that he was involuntarily discharged under non-disqualifying circumstances. In addition, Miner applied for and received public assistance, in the form of food stamps, heat benefits and Medicaid. Miner also commenced an action in New York State Supreme Court, which he subsequently discontinued in order to pursue this federal action.
C. Federal Court Proceedings
In his federal complaint, filed on July 27, 1989, Miner alleged that he was dismissed from his job in violation of the United States Constitution, the New York State Constitution, the New York Civil Service Law and a collective bargaining agreement between the City of Glens Falls and the Glens Falls Police Benevolent Association. Miner further alleged that he had "been damaged as a result of the actions of the defendants." Miner sought judgment against the defendants in the sum of $1.5 million in damages, such other and further relief as may be just and proper, together with costs, disbursements and attorney's fees.
Following discovery, Miner moved for summary judgment on his complaint. The February 25, 1991 motion was supported by affidavits of Miner and his counsel. Attached to these affidavits were transcripts of depositions given by the members of the Board of Public Safety: Mayor O'Keefe, Chief Duggan, John Paquin, Thomas Hewitt, Louis Hoffis and Richard Saunders. (One member of the 1986 Board died before this action was commenced.)
The defendants opposed Miner's motion for summary judgment on the limited grounds (1) that Miner voluntarily resigned from the police force, and therefore had not been involuntarily terminated; and (2) that Miner's election to proceed under the terms of a collective bargaining agreement constituted a waiver of the procedures guaranteed by the New York State Civil Service Law. The defendants interposed no other defense on summary judgment to Miner's claim that he suffered damages directly caused by the violation of his due process rights. Nor did the defendants contest the following material facts adduced by Miner in support of his summary judgment motion: (1) that Miner was never given a direct order to carry a weapon to conform his conduct to Resolution 50; (2) that no charges of misconduct were ever filed against Miner; (3) that Miner was never served with a notice of discipline, as required under the collective bargaining agreement between the City of Glens Falls and the Glens Falls Police Benevolent Association; (4) that Miner was never provided with a pre-termination hearing, as required by New York Civil Service Law Section 75[l], either for incompetency or for misconduct; (5) that, in accordance with New York Civil Service Law Section 75[l], the Board of Public Safety was the body that would have conducted Miner's pre-termination hearing had there been one; (6) that, despite the passage of Resolution 50, Miner was permitted to serve in the Police Department without carrying a firearm so that he could complete his 20 years of service; (7) that, upon learning that he was to be discharged, Miner asked Mayor O'Keefe for permission to be heard by the Board of Public Safety; and (8) that Mayor O'Keefe denied Miner's request for a hearing.
Miner's summary judgment motion also relied upon the following uncontradicted testimony of the individual members of the Board of Public Safety. Board member Louis Hoffis had voted for Resolution 34 with the understanding that Miner would be removed as Training Officer but would remain a police officer for the City. Mr. Hoffis recalled that the Board members discussed the resolution in that framework, and that he learned of Miner's complete dismissal only upon reading about it in a newspaper. Board member Thomas Hewitt was not present when the Board adopted Resolution 34, which "terminated" Miner's "status", and could not say whether the Board intended by that resolution to dismiss Miner from the police department or merely to officially remove Miner from his position as Training Officer. Mr. Hewitt's personal understanding was that Resolution 34 merely terminated Miner's position as a Training Officer. Neither could Board member Richard Saunders determine whether the import of Resolution 34 was to terminate Miner's status as a police officer or only his status as a Training Officer. Mr. Saunders believed that Miner did not deserve to be terminated entirely; and the Mayor had assured Mr. Saunders that Miner was offered, but had declined, alternative civil employment. According to Board member John Paquin, the Board had directed the Mayor to offer Miner an alternate position with the City of Glens Falls. Mr. Paquin believed the Mayor had done so.
The district court granted Miner's motion for summary judgment based on (a) the submissions in support of and in opposition to the summary judgment motion and (b) the preclusive effect of the New York State Department of Labor's factual findings. The district court found that Miner did not elect to proceed under the terms of the collective bargaining agreement, and that he "was terminated from his position as a permanent civil servant without any of the due process mandated under Federal or State law." The court concluded that Miner "met his summary judgment burden of establishing that there is no genuine issue of material fact regarding any element of his Section 1983 claim for deprivation of property without due process of law." Specifically, Senior Judge Munson ordered that judgment be entered in Miner's favor on the liability aspect of the case, and that Miner be awarded monetary damages in an amount to be determined. The issue of damages was set down for a bench trial.
At the two-day damages trial, Miner testified concerning the nature and extent of his actual injuries, and sponsored the testimony of three other witnesses, including his wife, on the same subject. The defendants introduced no evidence at the damages trial other than certain excerpts from the Glens Falls City Charter, offered for the purpose of establishing the authority and composition of the Board of Public Safety and the duties and responsibilities of the Mayor of Glens Falls.
At the conclusion of the damages hearing, the district court found that the defendants were responsible for Miner's injuries and awarded Miner (1) $89,484 in lost wages, together with pre-judgment interest; (2) $57,244.68 in lost pension benefits; (3) $12,500 for emotional distress; (4) $36,395 in attorney's fees; (5) $2,746.25 in expert witness fees; (6) $2,112.20 in other costs; and (7) post-judgment interest. On appeal, the City objects to the district court's award of lost wages, lost pension benefits, emotional injury damages and pre-judgment interest.
DISCUSSION
A. Lost Wages and Pension Benefits
It is uncontested on appeal that the defendants violated Miner's due process rights. In dispute is the district court's finding that Miner's injuries were caused by the due process violation rather than by Miner's decision not to carry a firearm. Specifically, the district court found that Miner failed to prove that his termination was the result of the due process denial, but ruled that the burden shifted to the defendants because they made it impossible for Miner to prove such causation. Since the defendants "made no effort whatsoever" to prove causation, the district court concluded that Miner's damages "were caused by defendants' violation of his right to procedural due process and that he is therefore entitled to collect more than nominal damages."
We hold that the burden of proving causation never shifted to the defendants. We nonetheless affirm the district court's award of substantial damages because Miner proved the element of causation at the summary judgment stage of this proceeding.
"It is well established that to collect compensatory damages in an action brought pursuant to 42 U.S.C. §1983, a plaintiff must prove more than a mere violation of his constitutional rights. He must also demonstrate that the constitutional deprivation caused him some actual injury." McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir. 1983) (citations omitted). Absent a showing of causation and actual injury, a plaintiff is entitled only to nominal damages. See Carey v. Piphus, 435 U.S. 247, 263, 266-67 (1978) ("injury caused by a justified deprivation . . . is not properly compensable under § 1983"; "the denial of procedural due process should be actionable for nominal damages without proof of actual injury."); Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990) (citing Carey v. Piphus, 435 U.S. at 263, for the proposition that "unless the deprivation was caused by the violation the plaintiff is limited to nominal damages.").
In this Circuit, the burden is normally on the plaintiff to prove each element of a § 1983 claim, including those elements relating to damages. McCann v. Coughlin, 698 F.2d at 126. It was therefore Miner's burden to show that the property or liberty deprivation for which he sought compensation would not have occurred had proper procedure been observed. Id. We recognize a limited exception, under truly extraordinary circumstances: if the defendant prevents the plaintiff from obtaining access to evidence, and thereby makes it impossible for the plaintiff to carry the burden of proof, the burden shifts to the defendant to prove that the deprivation of plaintiff's liberty or property right would have occurred even if due process had been afforded. Patterson v. Coughlin, 905 F.2d at 570.
In Patterson, a prison inmate was charged with assaulting a guard. At the disciplinary hearing, inmate Patterson sought to offer the testimony of two other inmates, but the hearing officer prohibited Patterson from calling any witnesses in his defense. Patterson was found guilty and sentenced to confinement in a special housing unit. Although the defendants conceded that they violated Patterson's due process right to present witnesses, they moved for summary judgment to dismiss the complaint arguing that Patterson could not show that he would have been exonerated even if he had been allowed to call witnesses at the disciplinary hearing, essentially because no one could say what testimony would have been given at the hearing by the two absent witnesses. This Court concluded that the burden of proving causation at the §1983 trial shifted to the defendants because they were responsible for the complete unavailability of one of the witnesses during both the disciplinary hearing and the § 1983 action, and because a second witness (based on that witness' testimony at his own disciplinary hearing) would have supported the plaintiff's version of events. Id. at 570.
The causation issue in Miner's case is whether the Board of Public Safety would have discharged Miner for his likely refusal to carry a firearm if ordered to do so. The district court concluded that the City made it impossible for Miner to establish causation "precisely because no pre-termination hearing was held." However, to treat that impossibility as the kind of impossibility that shifts the burden of proving causation would effectively remove a plaintiff's burden in every case, because the burden would shift presumably whenever due process was denied. It cannot be said that it was "impossible" for Miner to adduce proof of causation because the defendants impeded Miner's ability to do so. At the damages hearing, Miner was free to subpoena the Board members. There is no claim that the defendants procured their absence: Miner had previously deposed them. In that essential respect, this case is distinguishable from Patterson v. Coughlin, where the defendants were responsible for the loss of a material witness and, consequently, responsible for the plaintiff's inability to carry his burden of proof at the §1983 trial. Therefore, Miner's burden of establishing causation never shifted.
Miner shouldered his burden to prove causation by introducing extensive evidence on that issue on his motion for summary judgment. When the district court granted Miner's motion and "awarded monetary damages in an amount to be determined", Miner had reason to understand that the district court implicitly resolved the causation issue in his favor, and neither Miner nor the defendants proffered a single witness at the damages hearing regarding causation. We conclude that Miner was entitled to a judgment as a matter of law on that issue.
Appellate review of a district court's grant or denial of summary judgment is de novo. Hudson Hotels Corp. v. Choice Hotels Int'l, Inc., No. 92-9258, 1993 WL 197830, at *2 (2d Cir. June 11, 1993). As such, we apply the same legal standard as that employed by the district court pursuant to Federal Rule of Civil Procedure 56(c). Summary judgment must be granted "if 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." Fed. R. Civ. P. 56(c). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied, 480 U.S. 932 (1987); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985)).
We do not hold that Glens Falls must hire or retain a police force of pacifists. The issue is limited to what the members of the Board would have done (as opposed to what they had the power to do) about Miner's likely refusal to carry a gun if ordered to do so. Miner's summary judgment motion contained deposition testimony on this issue. (The defendants chose not to cross-examine any of the Board members during their depositions.) That testimony firmly establishes that Mayor O'Keefe wanted to fire Miner, but that the Board--which had the sole power to discharge Miner--would not have terminated Miner if Miner had been given the opportunity to go before the Board. Miner had been a valued public servant for 20 years. He had never been cited for misconduct or incompetence and he had previously performed well at a desk job. The Board had resolved to accommodate Miner's decision to work without carrying a firearm, as shown by its recommendation that Miner be offered alternate civil employment if Miner himself found it necessary to resign from the force. The majority of Board members considered Miner deserving of City employment either with the Police Department or otherwise. With the exception of the Mayor and the Chief of Police, all of the surviving Board members believed that notwithstanding their passage of Resolutions 34 and 50 Miner would either remain on the police force without carrying a firearm or that his conscientious objection would be accommodated by placing him in another City job. Moreover, the Board had had no previous occasion to enforce Regulation 50, and Chief Duggan (one of six appointed Board members) admitted that he did not carry a firearm at all times while on duty (an apparent violation of Regulation 50). With full knowledge of these facts, Mayor O'Keefe, who was chairman of the Board of Public Safety, intentionally denied Miner's request for a pre-termination hearing and never told the Board that Miner requested a hearing. (Indeed, the Mayor assured at least one of the Board members that Miner was to continue working for the City.)
The record on summary judgment fully supports Miner's claim that he was deprived of his employment because of the violation of his procedural due process rights. The defendants did not dispute causation on that motion or raise a genuine issue as to any material fact affecting causation. Accordingly, the district court erred in not granting judgment as a matter of law on that issue.
B. Pre-judgment Interest
The City contends that pre-judgment interest on the back pay should not have been awarded in this case because (1) Miner did not prove causation of damages; (2) the City did not receive a windfall by the use of Miner's unpaid salary; (3) the award of emotional damages already compensates Miner for the effects of the delayed payment; and (4) the district court, by taking fifteen months to issue its decision on damages, was responsible for much of the delay associated with the action. These arguments furnish no basis for reversal on appeal.
First, we have determined that Miner established the element of causation on his motion for summary judgment. Second, the district court awarded pre-judgment interest in order "to fully compensate plaintiff for actual damages incurred"; the district court found no countervailing inequity and, in that vein, noted that the City had "full use of the money which would have paid plaintiff's salary." Third, the district court's explanation that the award of pre-judgment interest was necessary to fully compensate Miner because he "has been deprived of the use of [his salary]" disposes of the City's argument that the interest award wholly or partially duplicates the award for emotional distress. Finally, the district court did not err when it determined the relative equities between Miner and the defendants without addressing the delay attributable to the functions of the court.
C. Emotional Distress
It is settled that a court may award damages for emotional suffering in a § 1983 case. See Carey v. Piphus, 435 U.S. at 263-64. What is required is that the plaintiff "convince the trier of fact that he actually suffered distress because of the denial of procedural due process itself." Id. at 263. "[G]enuine injury in this respect may be evidenced by one's conduct and observed by others." Id. at 264 n.20. If Miner had been fired for his conscientious inability to carry a weapon, he was evidently willing to accept the financial and emotional ramifications; but he was not for that reason required to bear any harm caused by the violation of his procedural rights.
According to Miner's testimony concerning emotional damages, he experienced feelings of inadequacy as a result of being unable to provide for his family, embarrassment while applying for public assistance in the presence of people he had encountered as a police sergeant, and stress at having to sell his newly purchased house. Miner further testified that he considered committing suicide because he felt "totally exasperated with the situation." Miner's wife testified about Miner's interactions with her and their children, and the tensions that evidently were caused by Miner's loss of his job.
The district court credited this testimony concerning "the mental anguish [Miner] felt after having been terminated by defendants," and concluded that "the proof demonstrates . . . that plaintiff suffered emotional distress as a result of his termination in violation of due process." The district court awarded Miner $12,000 for emotional injury.
The City argues that Miner has not offered sufficient competent evidence to sustain the emotional damages award and, in support of this proposition, cites to the Seventh Circuit's decisions in Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982) and Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990), and the Third Circuit's decision in Spence v. Board of Education, 806 F.2d 1198 (3rd Cir. 1986).
In Nekolny v. Painter, the Seventh Circuit deemed insufficient the evidence of emotional distress offered by three different claimants where one stated merely that he was "very depressed," another that she was "a little despondent," and the third that he was "completely humiliated." 653 F.2d at 1172-73. Subsequently, in Biggs v. Village of Dupo, the Seventh Circuit emphasized that a plaintiff must show "`demonstrable emotional distress,' not just point to circumstances of the constitutional violation which might support an inference of such injury," and rejected the claimant's "conclusory" testimony "that he was affected emotionally by being fired, and that he was concerned over `the idea of my family going through it'" as being too "sparse" to furnish the necessary direct evidence of emotional distress. 892 F.2d at 1304-05. (citation omitted.) In Spence v. Board of Education, the district court ordered a remittitur of a jury's award for emotional distress where the evidence "consisted chiefly of plaintiff's own testimony that she was depressed and humiliated by the [deprivation] and that she had lost her motive to be creative." 806 F.2d at 1201. The Third Circuit affirmed the district court's order, emphasizing that the plaintiff offered no testimony (a) that her peers held her in diminished regard; (b) that she suffered physically from her emotional distress; (c) that she sought professional psychiatric counselling; or (d) that she suffered emotional distress resulting from the loss of income. Id.
Except for Miner's thought of suicide, the anguish he described has some objective correlation with events described by Miner and by his wife: loss of their house, family tensions, certain potentially demeaning aspects of a former police officer having to seek benefits, and so on. The district court properly considered these factors and awarded damages in an amount consistent with the magnitude of Miner's subjective injuries and within the district court's discretion.
The City also argues that the law of this Circuit requires some evidence of medical attention to support a claim of emotional distress, citing Carrero v. New York City Housing Authority, 890 F.2d 569 (2d Cir. 1989). Carrero confirms that a prescription for medicine or a visit to a doctor can lend support to a claim for emotional distress; however, such evidence is neither required nor necessarily probative, though at some level of claimed distress the absence of medical attention may be suggestive. Here, there was no reason to expect that medicines or counseling could dispel the trauma of losing, among other things, one's professional standing in the community, one's home and one's income.
CONCLUSION
The district court improperly shifted the burden of proof as to causation. We nonetheless affirm the lower court's award because we find that Miner was entitled to a judgment as a matter of law on the issue of causation and because the defendants have failed successfully to challenge the award in any other respect. Having prevailed in this Court, Miner is entitled to the costs of appeal.
Court: U.S. Court of Appeals
Year: 2001
Summary: Prisoner brings action because of not being allowed to attend Jehovah's Witness meeting
------------------------------------------------------ UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 16th day of April, Two Thousand One.
PRESENT: HONORABLE JON O. NEWMAN,,
HONORABLE FRED I. PARKER,
HONORABLE ROBERT D. SACK,
Circuit Judges.
-------------------------------------------------
ANTHONY G. GILL,
Plaintiff-Appellant,
v.
No. 00-0235
JANICE DEFRANK, R.N., WOODBOURNE C.F.;
ELIZABETH R.N., WOODBOURNE C.F.; C.O. S. STENROS,
WOODBOURNE C.F.; SGT. TYBROWSKI, WOODBOURNE C.F.;
SGT. I. SPAFFORD, WOODBOURNE C.F.,
Defendants-Appellees.
-------------------------------------------------
APPEARING FOR APPELLANT: Anthony G. Gill, pro se
APPEARING FOR APPELLEES: Eliot Spitzer, Attorney General of the State of New York (Michael S. Belohlavek, Deputy Solicitor General, Marion Buchbinder and Sachin S. Pandya, Assistant Solicitors General, Of Counsel, on the brief) New York, New York
Appeal from the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said District Court be and it hereby is AFFIRMED.
Plaintiff-Appellant Anthony G. Gill appeals from the district court's July 6, 2000 memorandum and order adopting in part and modifying in part Magistrate Judge Peck's March 9, 2000 Report and Recommendation, and granting summary judgment in favor of Defendants-Appellees on all of his claims. Gill brought this action in 1997 pursuant to 42 U.S.C. § 1983. In his complaint, Gill alleged that in May 1997, Defendants-Appellees, who are medical personnel and correctional officers at Woodbourne Correctional Facility, violated his First Amendment free exercise rights by refusing his request to attend a Jehovah's Witness religious service, violated his Eight Amendment right to be free from cruel and unusual punishment by ordering him to perform work which was contrary to his posted medical restrictions, violated his constitutional right to privacy by disclosing his HIV status to non-medical personnel, and violated his due process rights by filing a false misbehavior report against him in retaliation for his lodging a prison grievance against Defendant-Appellee DeFrank and other staff members. Gill also alleged numerous state law claims.
Upon Defendants-Appellees' motion for summary judgment, Magistrate Judge Peck filed a report and recommendation on March 9, 2000 in which he recommended that the motion be granted with respect to Gill's Eighth Amendment, retaliation, and due process claims, and that the motion be denied with respect to Gill's First Amendment claim, his privacy claim, and his state law claims. Gill v. DeFrank, No. 98 Civ. 7851JSRAJP, 2000 WL 270854, at *1 (S.D.N.Y. March 9, 2000).
In a memorandum and order dated July 6, 2000, the district court adopted in part and modified in part the report and recommendation. Gill v. DeFrank, No. 98 Civ. 7851(NRB), 2000 WL 897152, at *1 (S.D.N.Y. July 6, 2000). The court adopted the report as to the claims on which it granted Defendants-Appellees' motion, but modified the report with respect to the First Amendment and privacy claims, granting summary judgment on those claims as well. Id. With respect to Gill's First Amendment claim, the court concurred with holdings in other district courts which held that "missing one religious service does not constitute a substantial burden on an inmate's right to the free exercise of his religion. Accordingly, as Gill missed only one service, defendants did not substantially burden his free exercise rights and his claim should be dismissed." Id. at *2 (internal citations omitted). The court further concluded that Defendants-Appellees are entitled to qualified immunity on the First Amendment claim because, "insofar as there had been disagreement [as of May 1997] among district courts, as to whether missing a single religious service constitutes a violation of religious rights, it cannot be said that the law was 'clearly established' at the time of the relevant events." Id. (internal citation omitted). With respect to Gill's privacy claim, the court concluded that "Gill's right to privacy regarding his HIV status was not clearly established law in 1997, and thus defendants are entitled to qualified immunity on this claim." Id. at *3. Finally, the court dismissed Gill's pendent state law claims and closed the case. Id. at *3-4.
We review the district court's order granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999). Having conducted such a review, we conclude that summary judgment on all claims was warranted, and affirm, for substantially the same reasons as stated in the Magistrate Judge's report and recommendation as to the claims for which the Magistrate Judge recommended dismissal, 2000 WL 270854 at *1, and in the district court's memorandum and order, 2000 WL 987152 at *1.
For the reasons set forth above, the judgment of the district court is AFFIRMED.
FOR THE COURT,
Roseann B. MacKechnie, Clerk
By: ____________________________________
Lucille Carr, Operations Manager
Court: U.S. Court of Appeals, Fifth Circuit
Year: 2000
Summary: Jehovah's Witness sues trucking company for firing him because he refuses to make overnight runs with female co-drivers.
------------------------------------------
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________________
No. 98-11468
___________________________________
Lynn L. Weber,
Plaintiff-Appellant,
v.
Roadway Express, Inc.,
Defendant-Appellee.
___________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________
January 7, 2000
Before KING, Chief Judge, REYNALDO G. GARZA, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
On October 20, 1997, Weber filed suit against Roadway Express, Inc. ("Roadway") alleging employment discrimination on the basis of Weber's religion in violation of 42 U.S.C. § 2000(e)(2)(a). On June 15, 1998, Roadway filed its Motion for Summary Judgment. On September 22, 1998, the district court granted Roadway's Motion for Summary Judgment and entered judgment against Weber. On October 7, 1998, Weber filed his Motion for Reconsideration which was denied by the trial court on November 13, 1998. This appeal followed.
Roadway is a national trucking company in the business of hiring truck drivers to transport goods to various regions of the United States. Roadway's facility in Irving, Texas serves primarily as a station for long-haul, two-driver trips ("runs") that require the drivers to spend the night in the truck.
Roadway utilizes a system for dispatching drivers that incorporates several dispatch boards. On the "A Board" are single drivers who make runs of ten hours or less. On the "B Extra Board" are drivers who perform two-person journeys that last more than ten hours. Drivers on these two boards have some degree of seniority and are able to bid on runs based on their seniority. Drivers from the B Extra Board are dispatched solely by seniority, and when a two-person, overnight run cannot be filled by a team from the B Extra Board that has bid on the run, the vacancy, or vacancies if both positions are unfilled, will be satisfied by other drivers on the B Extra Board or the Casual Board.
When hired, all drivers are conferred "casual" status, meaning they are dispatched on runs not bid on or otherwise filled by regular, full-time drivers. Drivers are dispatched from the casual board on an as-needed basis, usually when a two-person, overnight run cannot be filled by either a team of two drivers that has bid on the run or by one or more drivers from the B Extra Board. Casual drivers are dispatched in the order in which they have returned from other runs. Driver compensation for any run depends on the number of miles logged.
In early July of 1996, Weber applied for a position as a truck driver with Roadway. As a Jehovah's Witness, Weber asserts that his religious beliefs require that he refrain from making long-haul overnight runs with a female partner who is not his wife. The sincerity of Weber's religious beliefs appears to be undisputed.
Approximately two weeks after being hired, Weber discovered that Roadway employed female drivers on overnight runs. Weber contacted his supervisor, John Mizell, to notify him that he could not accept any run that included a female partner. Mr. Mizell informed Weber that working with women was part of his job and that he would have to work with women or would not receive any driving assignment. Subsequently, Weber filed suit against Roadway alleging a failure to accommodate his religious beliefs pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e(j), 2000e-2(a)(1).
STANDARD OF REVIEW
This court exercises de novo review of the granting of a summary judgment. SMWNTS Holdings, Inc. v. DeVore, 165 F.3d 360, 364 (5th Cir. 1999). Summary judgment shall be entered in favor of the moving party, if the record, taken as a whole, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). A factual dispute is "genuine" where a reasonable jury could return a verdict for the non-moving party. Id.; Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986). The district court's findings of fact are reviewed on the "clearly erroneous" standard. Fed. R. Civ. P. 52(a).
Weber's appeal of the trial court's refusal to grant his motion for reconsideration or to alter or amend judgment is reviewed under an abuse of discretion standard, and the trial court's decision need only be reasonable to be upheld. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993). This Court has stated the trial court's discretion in such matters is considerable. Id. at 355. ANALYSIS
I.
The district court did not err in granting Roadway's Motion for Summary Judgment. Title VII of the Civil Rights Act of 1964, as amended in 1972, makes it unlawful for an employer to discriminate against an employee on the basis of religion. 42 U.S.C. § 2000e-2(a)(1). An employer has the statutory obligation to make reasonable accommodations for the religious observances of its employees, but is not required to incur undue hardship. Eversley v. Mbank Dallas, 843 F.2d 172, 175 (5th Cir. 1988). "Undue hardship" exists, as a matter of law, when an employer is required to bear more than a de minimus cost. Transworld Airlines, Inc. v. Hardison, 432 U.S. 63 at 84 (1977); Brener v. Diagnostic Center Hosp., 671 F.2d 141, 146 (5th Cir. 1982).
To establish a prima facie case of religious discrimination under Title VII, a plaintiff must establish that he had a bona fide religious belief that conflicted with an employment requirement, that he informed the employer of his belief, and that he was discharged for failing to comply with the conflicting employment requirement. See Brener, 671 F.2d at 144. Roadway does not contest that Weber has established a prima facie case. The burden therefore shifts to Roadway to show that it was unable to reasonably accommodate Weber's beliefs without undue hardship. Id.
The district court concluded that the reasoning of the Supreme Court's decision in Hardison supports a finding that skipping over Weber in scheduling to accommodate his religious beliefs would force Roadway to deny the run and job preferences of Weber's co-workers, which would constitute an undue burden. Hardison, 432 U.S. at 81. ("It would be analmalous to conclude that by 'religious accommodation' Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer religious needs of others, and we conclude that Title VII does not require an employer to go that far"). The fact that Weber's casual co-workers have no contract entitling them to a particular run or job preference does not exclude the instant case from Hardison's coverage.
Weber claims that Roadway's refusal to accommodate Weber's religious beliefs, by skipping over Weber in scheduling when he would be paired with a woman driver, amounts to unlawful employment discrimination under Title VII because Roadway would not be required to endure an undue burden or accept more than a de minimus cost. According to Weber, Roadway would not be subject to an undue burden by skipping over him because Roadway already allows drivers to be skipped for various secular reasons.(1) Weber further contends that Roadway was not entitled to summary judgment because it failed to make any good faith effort to accommodate.(2) Lastly, Weber argues that Roadway's defenses are based on unlikely hypothetical situations and that casual drivers do not have a contractual right to be called for any specific run.(3)
Roadway argues that the district court properly granted summary judgment because "skipping over" Weber when paired with a woman driver to allow another driver to take the run is beyond the requirements of Title VII. Roadway relies on several cases to support its position that an employer is not required to rearrange its schedule and force employees to "trade shifts" to accommodate the religious practices of an employee. Roadway maintains that in Brener and Eversly, this court relied on the Supreme Court's decision in Hardison when it held that forcing "trade shifts" to accommodate religious practices was not required by Title VII. Roadway further relies on Lee v. ABF Freight System, Inc., 22 F.3d 1019 (10th Cir. 1994) (holding that the plaintiff's "voluntary runaround" proposal of skipping over his position on the drivers' dispatch board was unreasonable as a matter of law). Roadway also asserts that business exigencies trump any employee leave policies or "refusal to ride" practices that on occasion allow drivers to be skipped over for various secular reasons.
First, skipping over Weber constitutes more than a de minimus expense because this unduly burdens his co-workers, with respect to compensation and "time-off" concerns. As the district court found, skipping over Weber to avoid pairing with a female driver may adversely affect other drivers. For example, the run Weber passes up might lead his substitute to accept a shorter run than she might otherwise, which provides less compensation and is therefore less valuable. Weber's substitute might also receive less rest and time off between runs than he or she might otherwise. See Cook v. Chrysler Corp., 981 F.2d 336, 338 (8th Cir. 1992) (holding that hardship need not be quantifiable in economic terms). The mere possibility of an adverse impact on co-workers as a result of "skipping over" is sufficient to constitute an undue hardship. See Hardison, 432 U.S. at 81 (the Supreme Court frowned upon a proposed accommodation that affected the possible job preferences of other employees); See also Brener, 671 F.2d 141 (5th cir. 1988), and Eversley, 843 F.2d 172 (5th Cir. 1988) (finding that an employer is not required to rearrange its neutral scheduling practices to accommodate an employee).
Lee v. ABF Freight System, Inc., 22 F.3d 1019 (10th Cir. 1994), which also arose in the context of the interstate trucking industry, involved facts similar to those at issue here. In Lee, the plaintiff was a truck driver who requested that his employer alter its usual method of dispatching drivers to allow him to be off on Saturdays. As in this case, the employer in Lee utilized an "extra board" and dispatched drivers on the basis of seniority. Similar to Weber, the employee in Lee proposed a "voluntary runaround" system to skip over his position on the drivers' board whenever it coincided with Saturday work. Relying in part on Hardison, the court found, as a matter of law, that the employer could not accommodate the Plaintiff's religious beliefs without undue hardship. Specifically, it emphasized that, "by skipping over Mr. Lee, however, the next driver on the 'extra board' would have to be dispatched to cover Mr. Lee's run, effectively cutting short the subsequent driver's time off." Lee, 22 F.3d at 1023. Thus, as in this case, the accommodation of Lee, because it would unavoidably result in alteration of other employees' schedules, constituted an undue hardship.
Weber attempts to distinguish Lee by arguing that the "time off" in Lee involved Department of Transportation mandated time off. This distinction is not persuasive because the emphasis in Lee was not on compliance with Department of Transportation regulations, but on changing the schedules of other employees.
Second, Roadway's hypotheticals regarding the affects of accommodation on other workers are not too remote or unlikely to accurately reflect the cost of accommodation. Weber argues that the district court, by accepting the hypothetical about how other drivers would be affected, did not view all facts and inferences therefrom in the light most favorable to the nonmovant.
Yet while Weber argues that Roadway's concerns are too speculative, the district court rightly concluded that federal law does not require Roadway to wait until it felt the effects of Weber's proposal by foregoing a run or skipping over a female driver. See Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995) (the City could deny request of trainee to skip training rotation because of Sabbath out of concern that not rotating would negatively affect the recruits training); see also Favero v. Huntsville Independent School District, 9 F.Supp. 2d 1281 (S.D.Tex. 1996) (court rejected plaintiff's suggested approach that would permit employers to deny requests only when they are certain in advance that a requested accommodation would cause an undue hardship). In Hardison, the Supreme Court found that under Title VII an undue burden is present if the proposed accommodation would force changes in the schedules of other employees and alter the employer's otherwise neutral procedure. Hardison, 432 U.S. at 81.
Third, we address Roadway's practice of allowing drivers to be skipped for various secular reasons and Weber's suggestion that he could be easily accommodated. See footnote one, supra. Weber's argument with regard to the secular exceptions is unpersuasive. Unlike in the situation of Weber's accommodation, "refuse to ride" requests and other secular exceptions to the assignment system would be and are only accommodated if business circumstances dictate. In contrast, Weber's accommodation would be inflexible. Therefore, whereas flexible secular exceptions are de minimus, the inflexible religious exception is not because it effects the scheduling preferences of other employees.
Finally, Roadway was not entitled to summary judgment even though it failed to make an effort to accommodate. Weber relies on Heller v. Ebb Auto Co., 8 f.3d 1433, 1440 (9th Cir. 1993), which states that the employer must establish that it at least initiated good faith effort to accommodate. However, the district court is correct in observing that even the court in Heller does not mandate such an effort if the employer can show that any accommodation would impose an undue burden. See Id. Roadway relies on EEOC v. Townley Eng'g. Mng. Co., 859 F.2d 610, 615 (9th Cir. 1988) (finding that an employer is not required to engage in fruitless dialogue when it is clear that no accommodation could be made without undue hardship). The only suggested accommodation, that of skipping over assignments involving women, because of the reasons asserted by Roadway, would impose more than a de minimus cost.
Accordingly, the district court was correct in granting summary judgment.
II.
The district court did not err in denying Weber's Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. Weber argues that the district court erred in refusing to reconsider its granting of summary judgment based upon newly discovered evidence that Roadway failed to produce. Yet like the district court, we are unpersuaded by Weber's claim that he sought the documents earlier, but that Roadway withheld them.(4) Furthermore, the district court correctly found that the "refuse-to-ride" letters at issue shed no new light on the questions addressed at summary judgment.
It is within the district court's discretion whether to reopen a case under Fed.R.Civ.Pro. 59(e). Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993). There is no indication that the district court abused its discretion in denying the request for reconsideration. The district court correctly found that Weber's motion to amend the summary judgment record was a transparent effort to avoid the adverse ruling.
CONCLUSION
This appeal arose from a Title VII claim of religious discrimination in employment by Weber, a trucker and Jehovah's Witness who was dismissed because his religious beliefs prevent him from making long-haul overnight trips with women truckers. The district court did not err in granting Roadway's Motion for Summary Judgment or in denying Weber's Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment. Accordingly, we AFFIRM the district court's granting of summary judgment and its denial of Weber's Rule 59(e) Motion for Reconsideration or to Alter and Amend Judgment.
1. 1 There is evidence that drivers are allowed to "divorce" other drivers if they no longer wish to ride together. Similarly, a driver can submit a "refuse-to-ride" letter when the driver does not want to be paired with another specific driver with whom he has previously ridden. Finally, the evidence shows that Defendant occasionally allows a driver to be passed over for an emergency or for personal reasons.
2. 2
When Weber informed his supervisor, John Mizell ('Mizell') of the conflict between Roadway's employment policies and his religious beliefs, Mizell summarily rejected Weber's proposal and refused to discuss accommodation. Mizell's response was to inform Weber that if he could not ride with females he was terminated. No cases cited by Roadway support the proposition that an employer refusing to offer any sort of reasonable accommodation has not violated Title VII.3. 3
The district court limited its discussion to Weber as a casual driver and did not consider Roadway's arguments concerning the burden of accommodating Weber if he became a regular driver. The district court stated that if Weber were a regular driver with some degree of seniority, its analysis would differ because the regular drivers' seniority is governed by a collective bargaining agreement, and accommodating Plaintiff could effect those rights.4. 4
"As Defendant points out, Plaintiff was aware of the refuse-to-ride letters when John Mizell's deposition was taken on May 12, 1998. Defendant filed its motion for summary judgment on June 15, 1998, and Plaintiff did not respond to the motion until July 14, 1998. Only when Plaintiff filed his response did he serve Defendant with supplement requests for production, requesting the refuse-to-ride letters. Additionally, the depositions Plaintiff now submits were not taken until early September 1998." District Court Order Denying Motion for Reconsideration or to Alter or Amend Judgment.
Court: U.S. Court of Appeals, Seventh Circuit
Year: 1994
Summary: Child rapist attempts to use Sixty Minutes programme featuring Jehovah's Witnesses as part of his defence.
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In the
United States Court of Appeals
For the Seventh Circuit
No. 93-3422
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN T. FOSTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 93-21-CR--John D. Tinder, Judge.
ARGUED MAY 18, 1994--DECIDED JULY 14, 1994
Before WOOD, JR., MANION, and ROVNER, Circuit Judges.
WOOD, JR., Circuit Judge. On April 28, 1993, a federal
grand jury sitting in the Southern District of Indiana
returned a two count indictment against Kevin T. Foster
charging him with aggravated sexual abuse of a minor
child in violation of 18 U.S.C. sec. 2241(c), and abusive sexual
conduct involving a minor child in violation of 18 U.S.C.
sec. 2244(a)(1). The prosecution sought to prove that Foster
sexually abused his step-daughter Nicole, ten years old
at the time of trial. Foster's theory of defense was that
his wife and daughter concocted the sexual abuse story,knowing that the marriage between Foster and his wife
was in trouble, to ensure that she would retain custody
of their three children.
As part of that theory of defense, Foster wanted to in-
troduce a two minute segment from an episode of the tele-
vision program "60 Minutes" that Foster claimed he
watched with his wife and daughter. The videotape was
of several male Jehovah's Witnesses who claimed that
their children, the subjects of custody battles during mar-
riage dissolution proceedings, falsely claimed that their
fathers had sexually abused them. The children quickly
recanted their stories, and the authorities never filed
criminal complaints against the fathers who spoke out on
60 Minutes. On July 13, 1993, the government filed a motion in
limine requesting that the trial court conduct a pretrial
hearing concerning the admissibility of the videotape. The
court conducted the hearing prior to jury selection on July
14, and held that the videotape was inadmissible. The
court did so because: 1) pursuant to Fed. R. Evid. 401,
the videotape was not relevant to any material issue,
namely whether the allegations Foster's daughter made
were true; 2) pursuant to Fed. R. Evid. 403, the videotape
had no probative value, and admitting the videotape would
unfairly prejudice the government's case and confuse the
jury by causing jurors to focus on the allegations made
in the videotape rather than those against Foster; and
3) pursuant to Fed. R. Evid. 801(c), the videotape con-
tained hearsay, as the defendant was offering it in part
for the truth of the matters asserted, and no hearsay ex-
ceptions applied. The court therefore instructed the defen-
dant and his counsel not to refer to the videotape in any
way in the opening statement, argument, questioning, or
testimony.
At trial, the prosecution elicited the following testimony
from Foster's daughter Nicole. Kevin Foster, a cook, lived
with his wife Joyce, a member of the United States Army,
on Fort Benjamin Harrison./1 Foster and Joyce lived to-
gether with Foster's step-daughters Nicole and Monique,
and Tyrone, the two-year-old son of Foster and Joyce. On
October 2, 1992, Nicole became sick at school and Joyce
took her to their home at Fort Benjamin Harrison. Foster,
who was not working that day, stayed at home with Nicole
and Tyrone, and Joyce returned to work at the military
base.
Once Joyce had left, Foster told Nicole to get into her
pajamas and get into his bed. Foster then engaged in sex-
ual intercourse with Nicole, which Nicole described in
detail at trial. Nicole further claimed that while living in
Japan, Foster had molested her in a similar manner on
several other occasions.
It was not until January 15, 1993, when Joyce and
Nicole were alone together at home, that Nicole disclosed
Foster's behavior to Joyce. Joyce phoned the Fort Ben-
jamin Harrison Military Police, who arrived shortly there-
after. Confronted by the police regarding the allegations
of molestation, Foster agreed to an interview with Special
Agent Wes Kilgore, Criminal Investigations Division of
the United States Army (CID), in the early morning hours
of January 16, 1993.
Kilgore claimed that during the interview at CID head-
quarters, although Foster at first claimed that Joyce fabri-
cated the molestation story because they had been fight-
ing over the paternity of her unborn child, he later made
several incriminating statements. Those statements were:
1) "the alleged penetration took place when Nicole was
laying on top of me in the bed;" 2) "I feel guilty for the
God-forbidden things that I have done;" and 3) "I am
guilty. Go ahead and put me in jail." Kilgore conceded
that he did not tape the interview, which lasted approx-
imately 150 minutes, and that he took only two para-
graphs of notes. After the interview, Private Christopher
Cummings sat with Foster in the CID waiting area and
claimed to have heard Foster make additional incrimi-
nating statements, including: 1) "Apparently when she did
what she did she knew what she was doing;" 2) "I didn't
look at it like a female touching me;" and 3) "I tell you
one thing, it will never happen again."
At the conclusion of the prosecution's case-in-chief,
Foster asked the court to reconsider its preliminary find-
ing as to the admissibility of the "60 Minutes" videotape.
Foster relied on his earlier arguments, but as additional
evidence noted the testimony of Nicole that she thought
that her mother and Foster would not remain together.
The district court denied the motion, and outside of the
presence of the jury admitted the videotape into evidence
for the purpose of preserving the issue for appeal.
In his defense, Foster testified that on January 14, 1993,
he got into a fight with his wife and children over them
eating without him the dinner he had prepared. Foster
screamed at his wife and children, accusing his wife of
carrying someone else's unborn child and threatening to
beat his kids. Foster further testified that he and his wife
had another fight the next day, which caused him to leave
the house for ten minutes to cool down. When he returned,
Joyce had phoned the police regarding sexual abuse of
Nicole, which Foster denied. Foster further denied mak-
ing any of the statements described by Special Agent Kil-
gore and Private Cummings.
The defense called no witnesses other than Foster, and
the government called no rebuttal witnesses. On July 15,
1993, the second day of trial, the jury convicted Foster
of the first count of the indictment against him, know-
ingly engaging in a sexual act with a person under the
age of 12. On September 24, 1993, the district court sen-
tenced Foster to 189 months imprisonment and a five-year
term of supervised release to follow his term of imprison-
ment, as well as requiring him to pay a $1000 fine and
a $50 special assessment. Foster timely filed this appeal,
claiming solely that the district court erred in not allow-
ing him to show to the jury the "60 Minutes" videotape
segment.
We will reverse the evidentiary ruling of a district court
only if it has abused its discretion. United States v.
Levine, 5 F.3d 1100, 1107 (7th Cir. 1993), cert. denied, 114
S. Ct. 1224 (1994). Trial courts properly may exclude rele-
vant evidence "if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." Fed R. Evid. 403. Balancing pro-
bative value versus prejudice is a highly discretionary
function to which we accord great deference. Geitz v.
Lindsey, 893 F.2d 148, 150-51 (7th Cir. 1990); see United
States v. York, 933 F.2d 1343, 1352 (7th Cir. 1991) ("Assess-
ing the relative impact of the legitimate and illegitimate
inferences supported by evidence . . . requires a contem-
poraneous assessment of the presentation, credibility, and
impact of the challenged evidence. We therefore accord
great deference to the district judge's decision to admit
or exclude evidence under Rule 403."); see also United
States v. Tylkowski, 9 F.3d 1255, 1262 (7th Cir. 1993)
(quoting York). If any reasonable person could agree with
the ruling of the district court, we must defer to the judg-
ment of that court. Geitz, 893 F.2d at 150-51.
The oral ruling the district court made against Foster
on the record immediately before the trial proceeded was
well reasoned and was a proper exercise of its discretion.
The "60 Minutes" segment was a profile of Jehovah's Wit-
nesses, and part of that segment presented two male
Jehovah's Witnesses who claimed that during dissolution
proceedings involving disputes over child custody, their
children made false claims of sexual abuse against them.
The district court explained that the videotape had little
probative value, as Foster was not a Jehovah's Witness
and neither was involved in a custody battle nor dissolu-
tion proceedings. Additionally, Foster could communicate
the thrust of his defense without the videotape--that Joyce
and Nicole fabricated the abuse allegations because they
were angry at Foster./2
The district court further reasoned that the videotape
had great potential to prejudice the government's case
and mislead the jury. The jury likely would confuse the
stories of the Jehovah's Witnesses with that of Foster,
or conclude that abuse allegations generally are false and
that Foster was a part of that general trend. The district
court balanced what it perceived as a lack of probative
value against a great risk of prejudice and concluded that
it should exclude the evidence under Rule 403. A reason-
able person could agree with that conclusion, see Geitz,
893 F.2d at 150-51, and we therefore hold that the district
court committed no error in excluding the videotape. The
decision of the district court therefore is
AFFIRMED.
FOOTNOTES
/1
Fort Benjamin Harrison is a special maritime and ter-
ritorial jurisdiction of the United States.
/2
Foster complains that if the tape were in evidence, he
could have countered the part of the prosecution's clos-
ing argument in which it asked the jury to consider
whether Joyce and Nicole could have fabricated the detail-
ed abuse allegations in five minutes. The jury, however,
heard Foster's testimony that he, his wife, and his
children had been fighting prior to the day Joyce reported
his abuse of Nicole, but the jury nevertheless believed
that sexual abuse in fact occurred and dismissed Foster's
testimony as either untrue or irrelevant. As Foster con-
cedes, the closing argument was not error (nor did the
defense object at the time) if the district court properly
excluded the videotape. Because we hold that the district
court did properly exclude the videotape under Rule 403,
the prosecution's closing argument was not error either.
Court: U.S. Court of Appeals, Seventh Circuit
Year: 1996
Summary: Jehovah's Witness sues after being fired from his job as bailliff for inappropriate conduct, including proselytizing.
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In the United States Court of Appeals For the Seventh Circuit No. 95-2448 DAVID KELLY, Plaintiff-Appellant, v. MUNICIPAL COURTS OF MARION COUNTY, INDIANA, MUNICIPAL COURT ROOM SIX (6) OF MARION COUNTY, INDIANA, WENDELL W. MAYER, as Administrator of Support Personnel of Municipal Court Room Six and individually, et al., Defendants-Appellees. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 91 C 1183--Sarah Evans Barker, Chief Judge. ARGUED FEBRUARY 20, 1996--DECIDED OCTOBER 2, 1996 Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges. COFFEY, Circuit Judge. David Kelly, a black male and a Jehovah's Witness, worked as a bailiff in the courtroom of Judge Wendell Mayer. Mayer discharged Kelly, osten- sibly for poor job performance as well as for inappropriate conduct, including proselytizing and reading the Bible in public areas of the court house. In response, Kelly brought suit, claiming that he was harassed and ultimately fired due to his race, religious beliefs, and refusal to contribute to and work for the Republican Party. After dismissing some of Kelly's claims as barred by the Eleventh Amend- ment and granting summary judgment against Kelly on most of the others, the district court conducted a jury trial on Kelly's claim that he was fired due to his political beliefs. At the end of Kelly's case-in-chief, the district court granted Mayer's motion for judgment as a matter of law. Fed. R. Civ. P. 50(a). On appeal, Kelly challenges the dismissal on Eleventh Amendment grounds of various defendants; the grant of summary judgment on his claim that Mayer violated his rights to freedom of religion and equal protection of the law; and the grant of judgment as a matter of law on his claim that he was fired because of his political beliefs. He also raises several evidentiary issues. We affirm. I. BACKGROUND Defendant Wendell Mayer, a lifelong Republican, was appointed as a judge of the Marion County Municipal Court effective August 1, 1989. Kelly applied for and was hired as Mayer's bailiff and commenced work on August 22, 1989. Mayer interviewed Kelly, asked him about his previous work experience, and explained the requirements of the job. Mayer inquired of Kelly as to whether Kelly was a Republican, and Kelly replied that he was. He also told Mayer that he had once studied with the Jehovah's Witnesses, whose religious doctrine prohibited members from voting or participating in the political system. However, Kelly stated that he wasn't sure about the Jehovah's Witnesses and intended on remaining a Repub- lican at that time. Mayer told Kelly that he suggested to his employees that they contribute a part of their salary to the Republican Party. Further, Kelly testified that Mayer also told him that he "expected" his staff to work at the polls on election day and to participate in the electoral process. [Tr. II at 37]. Mayer denied these two statements, testifying that he never told Kelly that it was mandatory for Kelly to contribute to the party or to work at the polls. At some point (the record is unclear), Kelly began study- ing to become a Jehovah's Witness. [K. Aff. para. 13]. Kelly kept a Bible on his desk, which was located in an area of the office that was open to the public. Kelly read the Bible during "down time" in the public reception area; on several occasions, he also read the Bible to prisoners while they were waiting in the holding cells. [Mayer Dep. 170-90]. Mayer instructed Kelly to refrain from reading the Bible or proselytizing in public areas because he be- lieved that such activities could suggest that the court was promoting religion and would thus be a violation of the Judicial Code of Ethics, to which Mayer and his staff were bound. Mayer did not prohibit his other employees from reading materials such as newspapers, paperback novels, and magazines. [Mayer Dep. 179-80]. In January 1990, Kelly informed Chief Bailiff David Anderson that he was no longer going to contribute 2 percent of his salary to the Republican Party because to do so would violate the religious dictates of the Jehovah's Witnesses. Anderson reported directly to Mayer. [K. Aff. para. 12]. In February 1990, Kelly ceased contributing to the Repub- lican Party. In late April or early May 1990, Kelly told Anderson that, in keeping with his religious beliefs, he did not intend to work at the polls for the Republican Party during the May primary. [Id. at para. 13]. Kelly's decision not to contribute to the Republican Party and not to work at the polls was common knowl- edge among Mayer's staff. [Tr. I at 68]. However, neither Kelly, Anderson, nor Jane Sears, Mayer's court reporter, ever told Judge Mayer of Kelly's decision. Anderson tes- tified that if Jane Sears knew that Kelly was not con- tributing to the Republican Party or working at the polls, then Mayer knew it as well. [Tr. I at 70, 74]. On June 7, 1990, Kelly received a written reprimand from Mayer listing the following problems: (1) "Witness- ing" (promoting his religious beliefs to the public), (2) "Reading Materials" (reading the Bible in public areas), (3) "Working Hours" (arriving late), (4) "Lunch Hour" (failing to coordinate times with other members of staff), (5) "Phones" (failing to answer the phone), and (6) "Ab- sence during working hours" (failing to inform other mem- bers of staff). On September 7, 1990, Mayer terminated Kelly's employment because he did not consider Kelly had improved sufficiently in these problem areas. In July 1990, according to Kelly, prior to his discharge, certain members of Mayer's staff harassed Kelly by teasing him about his sex life. They asked how he had time for sex when he went to church all the time. Typically, on Mondays when Kelly came to work, they would ask what he had done over the weekend and whether or not he had had any sexual encounters. Kelly reported this be- havior to Mayer and asked Mayer to have them stop harassing him, but Mayer took no action. [K. Aff. para. 15]. Judge Evan Goodman was the Presiding Judge of the Municipal Court of Marion County during the time of Kelly's employment with Mayer. According to the Person- nel Manual for the Municipal Court of Marion County, the presiding judge had to give his consent whenever an em- ployee was disciplined or terminated. Goodman was never advised that Mayer had terminated Kelly's employment. Kelly filed this lawsuit on October 24, 1991. In his Sec- ond Amended Complaint, Kelly named as defendants the Municipal Courts of Marion County, Wendell Mayer, both individually and as administrator of support personnel of Municipal Court Room Six, and Evan Goodman, both indi- vidually and as chief administrator of the Municipal Courts of Marion County./1 In Count I of the four-count complaint, Kelly sued the defendants/2 under 42 U.S.C. sec. 1983 for al- legedly violating his rights to freedom of religion, liberty, political association, equal protection of the law, and due process of law. Under Count II, Kelly sued the defen- dants under sec. 1983 for allegedly violating his right not to be terminated from his employment without due proc- ess of law. In Count III, Kelly sued the defendants under 42 U.S.C. sec. 2000e for terminating him allegedly because of his religious and political beliefs, affiliations, and associations. In Count IV, Kelly sued the defendants for alleg- edly discriminating against him in violation of 42 U.S.C. sec. 1981 by granting white employees permission to read literature of their choice at work while denying such per- mission to Kelly. The district court dismissed Kelly's claims under Counts I and II insofar as those claims related to Mayer and Goodman in their official capacities. The court determined that the Eleventh Amendment barred these claims. The court also dismissed the claims under Counts I and II as they related to Goodman in his individual capacity because of the absence of a causal link between Goodman and the alleged deprivations. Furthermore, the court dismissed Counts III and IV in their entirety. The claims in Count III were held to be barred by the statute of limitations, and the claims in Count IV were held outside of the scope of sec. 1981 pursuant to Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2374 (1989), and Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir. 1992). In an entry dated May 10, 1994, the court granted Mayer's motion for summary judgment in part on the claims remaining against him in Counts I and II. The court granted summary judgment to Mayer on Kelly's re- ligious discrimination claim, concluding that preventing Kelly from reading the Bible or evangelizing during work- ing hours while in the court's public areas did not violate either the Free Exercise Clause or the Establishment Clause of the First Amendment. Next, the court deter- mined that Mayer was entitled to summary judgment on Kelly's "liberty" claim. The court construed this as a claim that Kelly had a substantive due process interest in reading the Bible and evangelizing while in court. The court determined that Mayer's restrictions during work- ing hours were reasonable in light of the purpose that the court serves. Third, the court granted summary judgment to Mayer on Kelly's claim that Mayer violated Kelly's right to equal protection. According to the court, Kelly's equal protection claim for racial discrimination failed for lack of evidence in support of the conclusion that he was terminated due to his race; his religious harassment claim failed because, in the court's view, the "harassment" of which Kelly complained was not sufficiently severe to create a "hostile work environment." Finally, the court denied summary judgment to Mayer on Kelly's claim that he was terminated in violation of his right to freedom of political association. The district court conducted a jury trial on Kelly's claim against Mayer in his individual capacity that Mayer vio- lated Kelly's right to freedom of political association by terminating Kelly for refusing to contribute to the Repub- lican Party and for refusing to work at the polls on elec- tion day. At the close of Kelly's case-in-chief, the court granted Mayer's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The court reasoned that Kelly had failed to present sufficient evidence from which a reasonable person could conclude that Kelly's decision to withdraw from politics was a substantial or motivating factor in Mayer's decision to terminate Kelly. According to the court, there was insufficient evidence to conclude (1) that Kelly had proven that Mayer knew about Kelly's decision to withdraw from politics, or (2) that Mayer con- ditioned Kelly's employment on his contributing to the Re- publican Party or participating in politics. The district court entered judgment dismissing all of Kelly's claims on May 16, 1995. Kelly filed a timely notice of appeal on June 14, 1995. II. ISSUES Kelly raises a number of issues in a variety of proce- dural postures. First, he claims that the district court erred when it dismissed the Municipal Court of Marion County and Mayer and Goodman in their official capaci- ties. He maintains that, contrary to the holding of the district court, none of these defendants constituted an arm of the State of Indiana for purposes of the Eleventh Amendment. Second, Kelly maintains that the district court erred in dismissing defendant Judge Goodman, whom Kelly sued in his individual capacity, on the ground that Goodman had no personal part in Kelly's termination. Ac- cording to Kelly, Goodman allowed Kelly to be fired with- out Goodman's consent as required by the Personnel Manual of the Municipal Court of Marion County. Third, Kelly contends that the district court erred in granting sum- mary judgment in favor of Mayer in his individual capacity on Kelly's claim that Mayer, by tolerating his staff's harassment of Kelly due to Kelly's religious beliefs, vio- lated his rights to religious freedom, due process, and equal protection. Further, Kelly alleges that his discharge violated these same rights. Fourth, Kelly maintains that the district court erred in granting Mayer's motion for judgment as a matter of law at the close of Kelly's case- in-chief. Finally, Kelly contends that the district court erred in excluding several exhibits and in refusing to permit Kelly's mother to testify. III. DISCUSSION A. Eleventh Amendment Kelly claims that the district court erroneously dismissed the Municipal Court of Marion County and Mayer and Goodman in their official capacities. The district court dismissed these defendants on the ground that they were entitled to immunity from suit under the Eleventh Amend- ment to the United States Constitution./3 The district court reasoned that, insofar as Kelly was suing Mayer and Good- man in their official capacities, he was suing the Municipal Court of Marion County, which is a state court, and hence an arm of the State of Indiana. On appeal, Kelly challenges the district court's conclu- sion that the Municipal Court of Marion County is a state court. Kelly maintains that a municipal court is a city court. In support of this position, he traces the history of the municipal courts. He notes that under a 1905 In- diana law, certain cities were given the power to create their own courts. An Act Concerning Municipal Corpora- tions, ch. 129, 1905 Ind. Acts 219. He contends that these courts were later succeeded by the municipal courts. Act of March 12, 1925, ch. 194, 1925 Ind. Acts 457. As a re- sult, according to Kelly, a municipal court is a city court and not a state court. We must consult Indiana law to determine whether a municipal court is part of the judicial branch of the State of Indiana. Scott v. O'Grady, 975 F.2d 366, 370 (7th Cir. 1992). Several aspects of Indiana law suggest that a mu- nicipal court is a state court and not a city court. In a number of respects, Indiana law distinguishes between a municipal court and a city court. For example, the In- diana legislature enacted a statute creating a municipal court in any county containing a city of the first class. Ind. Code sec. 33-6-1-1. On the other hand, city courts are created by the various legislative bodies of the respective city governments. Ind. Code sec. 33-10.1-1-3. In addition, the jurisdiction of a municipal court differs from that of a city court. A municipal court generally has broader jurisdiction than a city court. Compare Ind. Code sec. 33-6-1-2 with Ind. Code sec. 33-10.1-2-2, sec. 33-10.1-2-3.1, and sec. 33-10.1-2-4. Another difference is that a municipal court is a court of record, Ind. Code sec. 33-6-1-1, meaning that its proceedings are permanently recorded and it has the power to fine or imprison for contempt or for nonpayment of a fine im- posed, see Black's Law Dictionary 326 (5th ed. 1979). In contrast, a city court is not a court of record under In- diana law. Ind. Code sec. 33-10.1-5-7. Finally, the appeal pro- cedures for a municipal court and those for a city court differ. An appeal of a judgment from a municipal court may be taken to the state court of appeals. Ind. Code sec. 33-6-1-8. "Such an appeal shall be governed in all respects by the law relating to appeals to the supreme court and courts of appeals from the circuit courts so far as same are applicable." Id. In contrast, an appeal from a city court is taken to the circuit or superior court of the county and tried de novo. Ind. Code sec. 33-10.1-5-9(a). Thus, a muni- cipal court is almost akin to a state circuit court, which we have already determined to be a component of the judi- cial branch of state government. Woods v. City of Mich- igan City, 940 F.2d 275, 279 (7th Cir. 1991). This conclusion is bolstered when we consider that the $85,000.00 base salary of a municipal court judge is paid by the state, see Ind. Code sec. 3312-7; sec. 36-2-5-14; sec. 36-3-6-3(c), whereas the salary of a city court judge is paid by the city, see Ind. Code sec. 33-10.1-4-2(e). In light of the above, we hold that the Municipal Court of Marion County is a unit of the judicial branch of the State of Indiana/4 and that a muni- cipal court judge is a state officer entitled to immunity under the Eleventh Amendment. Accordingly, we conclude that the district court did not err in dismissing the Mu- nicipal Court of Marion County and Judges Mayer and Goodman in their official capacities./5 B. Goodman in His Individual Capacity Kelly argues that the district court erred in dismissing Counts I and II as they pertained to Judge Goodman in his individual capacity. Counts I and II alleged violations of Kelly's rights to due process, equal protection, and freedom of religion. The district judge determined that these two counts, each of which asserts a separate cause of action under 42 U.S.C. sec. 1983, had to be dismissed because liability under sec. 1983 requires a causal connec- tion between the misconduct complained of and the offi- cial sued, and, according to the trial judge, any such link as to Goodman was entirely absent. On appeal, Kelly disregarded and failed to address the district court's reasons for dismissing Counts I and II as they related to Goodman in his individual capacity. Rather, he simply states that Goodman denied him his right to continued employment "by allowing [Kelly] to be fired without [Goodman's] advice and consent as Presiding Judge, which is required" by the Personnel Manual of the Munici- pal Courts of Marion County. Individual liability under 42 U.S.C. sec. 1983 can only be based on a finding that the defendant caused the depriva- tion at issue. Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). A defendant will not be liable for a constitutional violation under sec. 1983 if the defendant merely exercised supervisory authority over those who violated the plaintiff's rights and otherwise failed to par- ticipate in any violation of the plaintiff's rights. In order for a defendant to be held liable under sec. 1983, the plain- tiff must establish that the defendant was personally in- volved or acquiesced in the alleged constitutional viola- tion. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). In reviewing the trial court's dismissal of Counts I and II for failure to state a claim upon which relief may be granted, Fed. R. Civ. P. 12(b)(6), we must accept as true the allegations of Kelly's complaint insofar as they relate to Goodman's involvement in his firing. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 1995). Kelly's Sec- ond Amended Complaint is not entirely clear as to the extent he alleges that Goodman was involved in his ter- mination. Nevertheless, in light of the personal-involve- ment requirement for liability under sec. 1983, Kelly faces a Catch-22. If we construe the Second Amended Com- plaint as alleging that Goodman did not personally partici- pate in his firing (thereby alleging a violation of the "con- sent" provision of the Personnel Manual), then liability will not attach because of the lack of personal involve- ment required by sec. 1983. On the other hand, if we con- strue the complaint as alleging that Goodman did personal- ly participate in Kelly's firing, then Goodman has satisfied the consent provision of the Manual. Under this construc- tion of the complaint, Kelly's theory of liability against Goodman falls short since Kelly's claim against Goodman is based upon Goodman's alleged failure to give consent to Kelly's discharge. Accordingly, we conclude that the district court did not err in dismissing Counts I and II as they pertained to Judge Goodman in his individual capacity. C. Religious Discrimination and Equal Protection Kelly next contends that the district court committed error in granting summary judgment to Mayer on Kelly's claims that Mayer, by tolerating his staff's harassment of Kelly due to Kelly's religious beliefs and also the firing of Kelly, violated Kelly's rights to religious freedom and equal protection of the law. Kelly claims that Mayer violated his right to religious freedom under the Free Exercise Clause of the First Amendment by preventing him from reading the Bible during working hours in a public area of the court, while other members of Mayer's staff were permitted to read literature of their choice./6 The district court concluded that the undisputed evidence demonstrated that Mayer only prohibited Kelly from reading the Bible while in the court's public areas. The court reasoned that this restric- tion did not violate Kelly's rights under the Free Exer- cise Clause. Before delving into a detailed analysis of Kelly's religious discrimination claim, we pause to consider whether we need address the merits of this issue at all. At oral argu- ment, we tried to ascertain what relief Kelly sought on the religious discrimination claim. We pointed at that, ac- cording to Kelly's submissions to us, he was discharged on the basis of his political beliefs, not because he read the Bible while on the job, and thus reinstatement was not available. Kelly's attorney responded by stating that Kelly "may have" disobeyed Mayer's order and continued to read the Bible in public areas of the court during work- ing hours. Although Kelly's attorney waffled on whether Kelly complied with Mayer's order, the key question on appeal from the grant of summary judgment is whether Kelly presented any evidence from which a jury could rea- sonably conclude that he disobeyed Mayer's order and was fired on that account. We examined the record for any evidence that Kelly disobeyed Mayer's order, and we found none. Accordingly, reinstatement is not an option. Moreover, although we inquired of Kelly's attorney on two separate occasions during oral argument as to what relief Kelly sought, he mentioned only reinstatement; he failed to mention damages, not even nominal damages. We thus hold that Kelly's claim for reinstatement is moot and a claim for damages has not been properly preserved./7 Be- cause no relief is available for Kelly's religious discrimina- tion claim, we need not address the merits of that claim. Kelly also asserts that he endured religious harassment by his coworkers, specifically, that his coworkers harassed him about his religious practice of abstaining from sexual activities outside of marriage. He further maintains that Mayer failed to do anything to stop the harassment when Kelly informed him of it. However, Kelly fails to set forth clearly the legal framework upon which he bases his claim. Although we assume this claim is based on 42 U.S.C. sec. 1983, Kelly failed to mention sec. 1983 and its ramifications in relation to this claim. For example, under sec. 1983, an employer cannot be held responsible on the basis of re- spondeat superior, yet Kelly failed to delineate under what theory of law he believes Mayer can be held responsible for his staff's alleged harassment. We might speculate as to a possible explanation, but under our adversary system, it is Kelly's responsibility to make his position clear. More- over, as for the substantive constitutional right at issue here, the district court believed that the religious harass- ment claim was based on an equal protection theory and analyzed the claim at length on that basis. On appeal, Kelly asserts in cursory fashion that the alleged harass- ment constituted a violation of his equal protection rights; likewise, he makes a general reference to the First Amend- ment without any attempt to provide the court with citation to relevant authority. Due to Kelly's failure to advance a coherent legal framework for analyzing his religious harassment claim, he has waived the issue on appeal. United States v. South, 28 F.3d 619, 629 (7th Cir. 1994) (nonchalant treatment of issue results in waiver); United States v. Eddy, 8 F.3d 577, 583 (7th Cir. 1993) (inadequate- ly developed arguments are waived)./8 D. Political Beliefs Kelly argues that the district court erred in granting Mayer's motion for judgment as a matter of law at the close of Kelly's case-in-chief. A trial was held on Kelly's claim that he was fired, in violation of his First Amend- ment right to freedom of political association, more spe- cifically for not contributing to the Republican Party and not working at the polls on election day. The court granted Mayer's motion for judgment as a matter of law because, according to the court, Kelly failed to present evidence sufficient to establish that (1) Mayer knew of Kelly's deci- sion to withdraw from politics, and (2) Mayer required his employees to contribute and to work at the polls. We review the trial court's grant of judgment as a mat- ter of law de novo. Jackson v. Bunge Corp., 40 F.3d 239, 246 (7th Cir. 1994). Judgment as a matter of law is proper if "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party." Fed. R. Civ. P. 50(a)(1). We view the evidence adduced at trial in the light most favorable to the nonmoving party. Thomas v. Stalter, 20 F.3d 298, 301 (7th Cir. 1994). In a sec. 1983 claim based on the First Amendment, the plaintiff must establish (1) that his conduct was constitu- tionally protected and (2) that his conduct was a "substantial factor" or "motivating factor" in the challenged action by the defendant. Johnson v. University of Wisconsin- Eau Claire, 70 F.3d 469, 482 (7th Cir. 1995). In the pres- ent case, there is no dispute that Kelly's decision to with- draw from and to refuse to participate in political activ- ity is constitutionally protected. The parties disagree, how- ever, over whether that decision was a "substantial" or "motivating" factor in Mayer's decision to fire Kelly. Mayer argues that there was no evidence that he knew of Kelly's decision to withdraw from political activity. Mayer notes that Kelly himself testified that he did not inform Mayer of his decision. Mayer also points to the testimony of his other staff members; none testified that he or she told Mayer about Kelly's decision. According to Mayer, absent evidence that he knew of Kelly's deci- sion to withdraw from politics, no jury could reasonably conclude that Mayer's decision to fire Kelly was motivated by Kelly's decision to refuse to participate in political activity. Kelly argues that, drawing all reasonable inferences in his favor, a reasonable person certainly could conclude that Mayer knew of his decision to withdraw from politics. Kelly points to the fact that he informed Anderson in late April or early May of 1990 of his decision to no longer work at the polls. He also maintains that Anderson in- formed Mayer about where Mayer's staff members would be working at the polls during the May 1990 primary elec- tion. Kelly infers from this that "Anderson told Mayer that Kelly would not be working at the polls" during that election. (Appellant's Br. 28). We have been unable to find any evidence in the record, nor has Kelly pointed to any page citation in the record, that anyone told Mayer of Kelly's decision to withdraw from any and all political activity. The testimony does reflect that it may have been common knowledge among Mayer's staff that Kelly had decided to cease contributing and to not work at the polls on election day. However, the record is barren of any evidence that any staff mem- ber actually told Mayer of Kelly's decision. Anderson did indeed testify that, in his opinion, if Jane Sears, Mayer's court reporter, knew of Kelly's decision, then Mayer must have known as well. Yet the evidence before us falls far short of establishing that Sears actually told Mayer. The portions of her testimony included in Kelly's appendix on appeal fail to contain any statement by Sears that she informed Mayer of Kelly's decision. Thus, Kelly's asser- tion, based on Anderson's testimony, that Mayer must have known because Sears knew is a self serving declara- tion based on nothing more than speculation. Kelly argues that, although perhaps no one told Mayer directly of Kelly's decision to withdraw from politics, Mayer was informed indirectly. Kelly contends that An- derson conveyed to Mayer by implication the fact that Kelly decided not to work at the polls. Kelly relies on Anderson's testimony on direct examination: Q. And do you recall whether or not Mayer asked his employees where they would be working on election day? A. I remember telling him; I don't remember him asking. He probably did. I don't recall that part about it, but I remember telling him. I can't re- member if it was his question or just me blurt- ing it out. I don't know. Q. But in any event, the information was conveyed by one means or another; is that correct? A. Yes. He knew I was working at the polls. Kelly interprets Anderson as saying that he told Mayer where all of Mayer's employees would be working on election day. (Appellant's Br. 28). Under this interpre- tation, Anderson would necessarily have omitted any men- tion of Kelly working at the polls, so Mayer would have been informed indirectly that Kelly would not be work- ing at the polls. In our view, speculation of this nature is at best an unreasonable interpretation because, in re- sponse to the follow-up question, Anderson clarified that he had told Mayer only where he, Anderson, would be working on election day, not where each and every mem- ber of Mayer's staff would be working. Kelly has thus failed to identify or cite any evidence in the record that Mayer was informed indirectly or by implication that Kelly had decided not to work at the polls on election day and not to contribute to the Republican Party. Without evi- dence, either direct or indirect, that Mayer was aware of Kelly's decision to withdraw from politics, Kelly has failed to demonstrate that his political views were a "sub- stantial" or "motivating" factor in Mayer's decision to fire Kelly. Accordingly, the district court did not err in grant- ing judgment as a matter of law to Mayer. Johnson, 70 F.3d at 482. Mayer also argues that, aside from whether or not Mayer knew of Kelly's withdrawal from politics, there was insufficient evidence for a jury to conclude that active in- volvement in politics was a condition of employment for Mayer's employees. Mayer concedes that he viewed poli- tical participation as very important and highly desirable; however, he denies that he ever conditioned an employee's job on being involved in politics. Kelly responds by noting that he testified that Mayer told him that he "expected his staff to work at the polls. And that they participate in the electoral process." Kelly argues that, viewing the evidence in the light most favorable to him, his testimony should be interpreted to mean that Mayer required his employees to work at the polls and to participate in the electoral process. We disagree and do not believe that Kelly's interpreta- tion is a reasonable one. First, after testifying that Mayer told him he "expected" his employees to work at the polls and to participate in the electoral process, Kelly was ask- ed what he understood Mayer to mean by that statement. Kelly responded: "I understood that that's just what he meant: He expected us to do that." Tr. II at 39. When given an opportunity to equate "expected" with "required," Kelly declined and instead affirmed that Mayer simply meant "expected." Thus, Kelly's own testimony does not support Kelly's current interpretation of Mayer's state- ment. Second, the sequence of events leading to Kelly's termination supports the conclusion that Kelly's with- drawal from politics was not a substantial or motivating factor in his termination. Kelly informed Anderson in early May 1990 that he would not be working at the polls. Kelly was not terminated until September 1990. Assuming for the sake of argument that Mayer was aware of Kelly's decision, the four-month delay between Kelly's decision not to work at the polls and his termination seems to undercut any inference that Kelly's withdrawal from poli- tics was a substantial or motivating factor in Mayer's deci- sion to fire Kelly. This situation is analogous to that in Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985), where there was a five-month delay between a prisoner's filing of a lawsuit and the prison authorities' transfer of the prisoner. We held that, due to the lengthy delay, there was insufficient evidence to support an inference that the transfer was in retaliation for the filing of the lawsuit. We agree with the district court that there was insuffi- cient evidence from which a jury could reasonably con- clude that Kelly's withdrawal from politics was a substan- tial or motivating factor in Kelly's termination. We con- clude that the district court properly granted judgment as a matter of law in favor of Mayer on Kelly's claim that Mayer terminated him in violation of his right to freedom of political association. E. Evidentiary Rulings Kelly argues that the district court erred in several of its evidentiary rulings during the trial. We review the de- cisions of the district court regarding the admission or exclusion of evidence under the abuse of discretion stan- dard. Jackson v. Bunge Corp., 40 F.3d 239, 246 (7th Cir. 1994). Kelly sought to introduce the Personnel Manual for the Municipal Court of Marion County. The district court sustained an objection to its admissibility for lack of relevance. Later, upon Kelly's request for reconsideration, the district court ruled that Kelly had failed to lay a suf- ficient foundation for the admissibility of the Manual be- cause no witness had testified that the Manual applied to bailiffs. On appeal, Kelly argues that the Manual was relevant because it provided that no employee could be discharged without the consent of the presiding judge. Kelly has failed to demonstrate the relevance of the Manual. The only claim at issue in the trial was whether Mayer violated Kelly's right to freedom of political associa- tion by firing him for not participating in the political process. Whether the presiding judge needed to consent to Kelly's firing has no bearing on that issue. In addi- tion, Kelly failed to address the district court's revised ruling that Kelly failed to lay a proper foundation for the admissibility of the Manual. Accordingly, the district court did not abuse its discretion in refusing to admit the Per- sonnel Manual. Next, Kelly maintains that the district court erred in sustaining an objection to the introduction of a memoran- dum memorializing a conversation that Kelly had with Judge Goodman after the termination of Kelly's employment. Kelly claims that the memorandum contained a state- ment by Goodman as to why Kelly had been discharged. This statement, however, was hearsay. Kelly argues that the memorandum should have been admitted under the catch-all exception to the hearsay rule. Fed. R. Evid. 803(24). However, at trial Kelly maintained that the memo- randum was admissible under the present sense impres- sion exception to the hearsay rule. Fed. R. Evid. 803(1). The district court rejected this contention. We cannot say that, under either theory, the district court's exclusion of the memorandum amounted to an abuse of discretion. Kelly also argues that the district court erred in sustain- ing Mayer's objections to questions regarding the amount of money that Mayer contributed to the Republican Party. However, Kelly fails to explain how the exclusion of this testimony prejudiced him. By the time Kelly's attorney asked Mayer how much money he contributed to the Re- publican Party, Mayer had previously testified that he was a long-time, ardent Republican and had contributed money to the party. The precise amount of money that Mayer contributed would have added little if anything to the jury's understanding of Mayer's political views. Kelly suf- fered no prejudice from the exclusion of this testimony. Next, Kelly contends that the trial judge erred in ex- cluding Plaintiff's Trial Exhibit 2, Plaintiff's Trial Exhibit 4, and testimony from Kelly's mother. Because Kelly fails to state why in his opinion the district court excluded these exhibits and testimony, we are unable to conclude that the district court abused its discretion. Finally, Kelly maintains that the district court erred in excluding Plaintiff's Trial Exhibit 8, which was a writ- ten determination by the Indiana Division of Employment and Training Services that Kelly was not terminated for just cause. The district court concluded that the deter- mination was not relevant and failed to satisfy the require- ments of collateral estoppel. We agree. The issue in the proceeding before the Indiana Department of Employment and Training Services was whether, under Indiana law, Kelly had been fired for "just cause." This question dif- fered from the federal constitutional issues presented in this case. Accordingly, the district court did not abuse its discretion in excluding Plaintiff's Trial Exhibit 8. IV. CONCLUSION The judgment of the district court is AFFIRMED. FOOTNOTES /1 Kelly also named "Municipal Court Room Six" as a separate defendant. Because Municipal Court Room Six is a subunit of the Municipal Court of Marion County, which Kelly named as a defendant, we will not refer to "Municipal Court Room Six" as a separate defendant. /2 Kelly refers only to Mayer and Goodman in the separate counts. We construe these counts as referring to Mayer and Goodman in their individual and official capacities. /3 The Eleventh Amendment provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. The United States Supreme Court has interpreted the Eleventh Amendment to bar suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890). /4 The Municipal Court of Marion County, established under Ind. Code sec. 33-6-1, was abolished effective December 31, 1995, and all cases pending before it were transferred to the Marion superior court. P.L. 16-1995, Secs. 15 & 22. /5 Kelly notes that, in his First Amended Complaint, he sought equitable and injunctive relief, and points out that the Eleventh Amendment does not prohibit such relief. However, Kelly fails to actually argue that the district court erred by dismissing his claims for equitable and in- junctive relief. In addition, we note that, based on the Eleventh Amendment, the district court dismissed por- tions of Kelly's Second Amended Complaint, not his First Amended Complaint. Because of the cursory treatment accorded this issue in Kelly's brief, see Appellant's Br. 9, we conclude that Kelly has waived any argument con- cerning the dismissal of his claims for equitable and in- junctive relief. See United States v. South, 28 F.3d 619, 629 (7th Cir. 1994) ("South's nonchalant treatment of this issue leads us to conclude that he considers the inquiry of little significance. . . . Consequently, South's challenge to the sufficiency of the evidence in support of his con- viction for attempt is waived."). /6 The district court noted that Kelly's complaint offered little guidance as to the precise legal theory on which he based his religious discrimination claim. The court analyz- ed Kelly's claim under both the Free Exercise Clause and the Establishment Clause. Entry of May 10, 1994 ("En- try") at 5. On appeal, Kelly again offers no clear guidance as to the basis of his religious discrimination claim. Because he does not discuss the law supporting a claim based on the Establishment Clause, e.g., Lemon, infra, and because he refers only to the free exercise of his religion, see Appellant's Br. 17, we construe his brief as raising only the latter issue. In addition, we note that Kel- ly makes no claim based upon the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. secs. 2000bb et seq.). /7 This reasoning also applies to Kelly's claim that he was denied equal protection of the law because Mayer banned him from reading the Bible in public areas of the court while his white, non-Jehovah's Witness coworkers were not similarly enjoined. /8 In its entry explaining its grant of summary judgment, the trial judge construed Kelly's complaint as alleging a due process interest in being able to read his Bible and evangelize while working in court. The district court thoroughly analyzed the issue as if it had been properly raised. Entry at 12-16. On appeal, Kelly asserts that the district court erred, insisting that Mayer violated his right to read what he liked. He terms this a violation of his "liberty interest" and, as such, a violation of his due pro- cess rights. (Appellant's Br. 14). We agree with the district court that Kelly's claim is unclear in this regard. Unlike the district court, we will not spare him from the requirement of offering a coherent argument on the issue. Because Kelly fails to explain how his "liberty interest/due process" claim differs from his religious discrimination claim, we deem the former waived, at least to the ex- tent it differs from the latter. Gagan v. American Cablevi- sion, Inc., 77 F.3d 951, 965 (7th Cir. 1996).
Well, thank you, Expatbrit. I enjoyed reading the highlighted areas. The Foster one I read all the way through. The man's a jerk.
I'm getting an education in reading legal writings, and the appeals. Sometimes I can understand them......sometimes not.
waiting
Hello Expatbrit,
thanks for the various links and the ...material.
A very interesting piece of information.
I'll read it all and comment another time.
Thanks again,
J.C.MacHislopp
Did you read the one about where on 60 Minutes the JW fathers saying their kids had lied about them (the fathers) sexually abusing them. It would be interesting to go back to those same kids now and see what they'd say since getting out of the houses.
Court: Supreme Court of British Columbia
Year: 1997
Summary: Physically and mentally ill man goes to court to get mother's will (making Watchtower chief beneficiary) changed. (note: that this situation had to be resolved in court tells you quite a bit about the Watchtower's attitude to $$$ as opposed to people.)
------------------------------------------------------------------------Date: 19970911
Docket: S12609
Registry: Nanaimo
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
ANDREW WILLOTT
PLAINTIFF
AND:
TOM MOSCRIP,
EXECUTOR OF THE WILL OF THE DECEASED,
IRIS WILLOTT,
STEPHEN ONWOOD,
THE WATCHTOWER BIBLE & TRACT SOCIETY OF CANADA
and
THE CEDAR CONGREGATION OF JEHOVAH'S WITNESSES
DEFENDANTS
REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE DOWNS
Counsel for the Plaintiff: Anne Sheane
Counsel for the Defendant Will W. Geselbracht
Tom Moscrip: No Appearance at Trial
Counsel for the Defendant
Stephen Onwood: D. Peter Ramsay
Counsel for the Defendant
The Watchtower Bible & Tract
Society of Canada: Grant Fedorak
Counsel for the Defendant
The Cedar Congregation of
Jehovah's Witnesses: Spencer Bowers
Place and Dates of Trial: Nanaimo, B.C.
June 9-13, 16-19 and 26,1997
Background
[1] Andrew Willott was the only child of Iris and Oliver Willott. He is now 51. His father died in April of 1988 leaving his estate to his wife. Ms. Willott died on September 23, 1995. The net value of her estate is approximately $496,000; of that amount $328,950 is the value of her interest in two separate pieces of real property held by the estate.
[2] In her will, Ms. Willott left her son her one-half interest in a piece of property on which there are some rental units ("Lot 1"). Oliver Willott had, about two years before his death, transferred Lot 1 to Andrew Willott and Iris Willott. Ms. Willott also bequeathed $10,000 in cash to her son. Andrew Willott's share of his mother's estate, then, is valued at $88,150, the half interest in Lot 1 being valued at $78,150.
[3] The residue of Ms. Willott's estate is to be distributed as follows:
3/5ths to the Watchtower Bible & Tract Society of Canada ("the society");
1/5th to the Cedar Congregation of Jehovah's Witnesses ("the congregation"); and
1/5th to Stephen Onwood.
[4] Andrew Willott brings this action under s.2 of the Wills Variation Act, R.S.B.C. 1996, c.490, asserting that his mother did not make adequate provision for his proper maintenance and support.
[5] The plaintiff was born in England on April 11, 1946. When he was about 18 months old the family immigrated to Canada. They lived with Andrew Willott's "Great-uncle Oliver" for a number of years in his farm house located in North Oyster, Ladysmith, on Vancouver Island. The farm property ("Lot 102") was where Ms. Willott was living at the time of her death, and is the other piece of real estate which forms part of her estate.
[6] Iris and Oliver Willott became Jehovah's Witnesses in about 1952. From then, until their respective deaths, they were devoted and active members of their congregation and the society. In due course Oliver Willott became an elder of the congregation and was, at the time of his death, its presiding overseer.
[7] When Andrew Willott was about five years old, his father purchased Lot 1. The family had moved away from Lot 102 for a time but moved back there after "Great-uncle Oliver" died. Lot 1 and Lot 102 are adjacent properties. Lot 102 is approximately 25 acres. The size of Lot 1 is not directly in evidence, but my impression is that it is less than 2 acres.
[8] The Willott family operated this small farm and Oliver Willott also worked in businesses away from the farm. Andrew Willott said he had a marvellous relationship with his Uncle Oliver. He described happy, busy times with him. He said his relationship with his parents was good "for the first five years." After saying that, he described an incident when he was about six when he was strapped at school for getting into trouble, then strapped again at home by his father for the same incident. In cross-examination, Mr. Willott said, "all my life my parents had nothing to do with me other than what they felt they had to do."
[9] Andrew Willott testified that his Uncle Oliver "left a will, but not on paper." He said that his uncle, in the presence of other men, stated that 25 acres of his property was to go to Iris Willott, 25 acres was to go to Oliver Willott's sister, and 10 acres (a portion of which is now contained in Lot 1) was to go to Andrew Willott. He said the men then "all spit on their hands and rubbed them on the ground."
[10] It is clear that Lot 102 has been in the name of Oliver Willott or Iris Willott since Uncle Oliver's death. However, the property which was "willed" to Andrew Willott by Uncle Oliver did not pass to him, nor was it in the name of either of Andrew Willott's parents until a portion of it was purchased by Oliver Willott from George Windel in December, 1959. The only relevance to this action of the ownership of the properties prior to Iris Willott's death is the psychological effect and the expectation that Uncle Oliver's "will" left with Andrew Willott. He acknowledged that the evidence he gave on discovery was true: "I think that the reason I'm entitled to the land is I'm the only heir."
[11] There is no doubt that Andrew Willott did much work and many chores around the farm during his childhood and youth. His parents were both hard working, too.
[12] Andrew Willott went to school as far as grade 10 and then left to go to work. His first full-time job was in a mill in 1964 or 1965 and he went long-shoring in 1966 - 1967. For most of the time he worked at these jobs he continued to live at home and he believes he paid room and board of about $150 a month.
[13] In about 1966, Andrew Willott became engaged to Rita Dawson. They had met when they were children and, from the time Rita Dawson was about 12 years old, her family and the Willott family were in the same congregation. Andrew Willott eventually broke off the engagement because he thought he was too young to marry.
[14] During the same time, in the mid-sixties, a lot of work was done on both Lot 1 and Lot 102. A second garage was built. A duplex was built on Lot 1 to be rented out and after that a single family rental house was built on Lot 1. Andrew Willott helped his father considerably with these projects.
[15] In 1967, Andrew Willott went to trade school for 11 months. Thereafter, his lifestyle became transient. Andrew worked from time to time but was frequently on welfare. He stayed on the farm whenever he wished but spent time in Vancouver and in the United States. Mr. Willott testified that in 1969 he was arrested for having "two joints" and went to jail for nine months. It was while in lock up during this period of imprisonment, Mr Willott testified, that he experienced hallucinations for the first time.
[16] Upon his release from gaol Andrew Willott's life continued in much the same pattern: work, welfare, travel, farm, trouble with the law, bouts with mental illness. In 1973, he testified, a judge sent him to Riverview Hospital when he said he would commit suicide if sent to Oakalla. The following is a portion of the discharge note from that hospital stay:
The clinical impression which was formed here was that of a man of superior intelligence with a passive aggressive personality disorder. He indicated clearly that he had been involved in a fatal accident several years before when he had been driving his sports car too fast. Antisocial comments were frequent. There was no evidence of any mental illness. At the end of his period of observation he was returned with the comment that he was able to instruct counsel and fit to stand trial. Patient is therefore today, October 3, 1973 discharged in full and was returned to Oakalla. No medications, no referral. Patient deemed capable.
DIAGNOSIS: Personality Disorder (301.2) (Schizoid)
RESULT: Improved.
DRUG/ALCOHOL
ADDICTION: Drug addiction.
[17] From 1975-1985 Andrew Willott lived on the farm and received welfare. Part of the money he received went to his parents for food and rent. He also did chores and other tasks around the farm. He saved enough money to fix up and insure a vehicle and went to California where he worked repairing vehicles. Together with a friend he made plans to open a garage. As these plans were taking shape, Oliver Willott phoned to tell his son that he had cancer. Andrew Willott returned to the farm and once again went on welfare; he said he gave his cheques to his mother who bought his clothes and personal items as well as provided his food and spending money. In the last year before Oliver Willott died, Andrew Willott helped with his care including carrying him from his bed to the bathroom and the like.
[18] After Oliver Willott's death in April of 1988, Ms. Willott turned to Stephen Onwood for assistance with financial and other matters. He was a member of her congregation and he and his family had known the Willott's well from the time they arrived in Canada from England in about 1972. Mr. Onwood taught Ms. Willott how to write a cheque and helped her manage her accounts and the like. Ms. Willott trusted him and was close not only to him but to his wife and young children. It is clear from the evidence that Ms. Willott thought of Stephen Onwood as a second son.
[19] In 1989, Ms. Willott was diagnosed with cancer. She had surgery in the summer of that year following which Rita Dawson came to live at the farm with her. Since the 70's, whenever Andrew Willott stayed at the farm he did not stay in the farmhouse but in other buildings on the property or in vehicles parked on the property. When Rita Dawson came to live at the farm, Andrew Willott was living in a trailer on Lot 1 as he had been since his return during his father's illness. He took many meals at the house with his mother and Ms. Dawson.
[20] On November 8, 1989, Iris Willott made a will. It was substantially different from the will which she later made which is the will giving rise to this action. The principal provisions of the 1989 will were as follows:
1. Stephen Onwood executor; Tom Moscrip alternate executor.
2. Lot 102 to Rita Dawson; if she predeceases testatrix to Earle Dawson (son of Rita Dawson).
3. Bank accounts to Rita Dawson; if she predeceases testatrix to Earle Dawson.
4. Securities to Stephen Onwood, if he predeceases testatrix to Cecelia Dawson (wife of Stephen Onwood).
5. Chattels to Rita Dawson, if she predeceases testatrix to Stephen Onwood.
6. Life interest in net income of Lot 1 to Andrew Willott.
7. Residue to Stephen Onwood.
[21] The specific provision of the life interest to Andrew Willott read as follows:
To transfer to my Trustee all my title and interest in the property known as Lot 1, District Lot 45, Oyster District, Plan 13603, P.I.D. 004-617-886, and to use the net income derived therefrom (after payment of half the taxes, insurance and maintenance) for the benefit and welfare of my son Andrew during his lifetime. My son Andrew is the owner of a half interest in the said property and there is derived therefrom sufficient income to provide support for him. If it should be deemed necessary to sell the land then the net proceeds of such sale to which my estate is entitled shall be held in trust and the income or so much thereof as my Trustee deems advisable shall be paid to or for the benefit of my son Andrew. I also give my Trustee the power to encroach upon the capital of such sum, if in his unfettered discretion he considers it advisable, for the benefit of my son. Payments of income and out of capital may be made at such times and to whom my Trustee considers advisable for the benefit of my son Andrew. My concern is for the welfare of my son but I make this my Will mindful of the limitations of my son to cope with his surroundings and to provide for himself. It is my hope and faith that the time will come when Andrew will be able to have full and continuing capacity to manage his affairs. Upon the death of my son Andrew the property if not sooner sold or the proceeds of the sale remaining at his death shall form part of the residue of my estate and be dealt with accordingly.
In addition, Ms. Willott said this in her 1989 will:
In making this my Will I have been ever mindful of the needs and circumstances of my son Andrew. I have also taken into consideration the profound assistance which Stephen and Linda Cecilia Onwood and Rita Ann Dawson have given to me and my son. In many ways they have been like my own children to me and I have great confidence in their ability to render such assistance as may be reasonably required, without imposing any duties upon them, for the benefit of my son Andrew. I have confidence in them in part because of their friendship for and understanding of my son Andrew.
[22] Rita Dawson had married in 1967 and Earle Dawson was born in 1968. Ms. Dawson continued her friendship with the Willotts. She saw Oliver and Iris Willott quite frequently; her contact with Andrew Willott was less frequent until she came to live with Iris Willott. Ms. Willott told Ms. Dawson of the provisions which she had made for her in the 1989 will, but she did not see the will.
[23] Sometime in about late 1990, Ms. Dawson noted that Andrew Willott's mental health was deteriorating and eventually spoke with Ms. Willott about his condition. Ms. Willott obtained medication from her doctor, Dr. Benoit, for her son and, unbeknown to him, put it in his juice every morning. Ms. Dawson said this concerned her. She said Andrew Willott became confused, "almost dazed." Therefore, Ms. Dawson said that she discarded the medication without Iris Willott's knowledge and replaced it with water. Following this, Ms. Dawson testified, Mr. Willott started to get better, but in early 1991 he started to deteriorate again; once again exhibiting bizarre behaviour.
[24] By May of 1991, Ms. Willott's cancer was in remission. At that time, Ms. Dawson began seeking other accommodation. Although there was no overt unpleasantness between her and Ms. Willott, I am satisfied on the whole of the evidence, that they were no longer comfortable living together.
[25] Ms. Dawson stayed with her son for a short time, then at another place, and then she found a small rental home. She said that, for a few months before that, she and Andrew Willott had discussed that "he had to leave the farm for his health."
[26] About two weeks after Ms. Dawson moved into her newly rented house, Mr. Willott moved in with her. At first, as Mr. Willott described it, they lived as brother and sister. Thereafter they married; the date of the marriage was not in evidence before me.
[27] Shortly after Ms. Dawson (as she then was) moved out of Ms. Willott's home in 1991, Ms. Willott went on a trip to England with her close friend, Marie Graham. At this time Andrew Willott was still living on the farm. Within the month before she and Ms. Willott left for England, Ms. Graham testified, Andrew Willott disappeared. Ms. Willott did not know where he was. This had happened from time to time over the years. Ms. Willott would check gaols and hospitals. On the day she was leaving for England, Ms. Willott learned her son was in Riverview hospital and spoke with him on the telephone.
[28] While in England Ms. Willott telephoned Riverview and was told Mr. Willott had left the hospital with Rita Dawson as "next of kin." Mr. Onwood testified that when Ms. Willott returned from England she did not know where her son was. He said that Ms. Willott had asked Ms. Dawson "where Andrew's T.V. was" and that Ms. Dawson had replied "with Andrew." A while after that Ms. Willott encountered her son while shopping; she asked him where his T.V. was and he said "at Rita's." Mr. Onwood said Ms. Willott concluded from this that her son was staying with Ms. Dawson. Ms. Willott learned of their marriage from others. She had not been invited to the wedding nor told of it by either of them.
[29] From the chance meeting between Mr. Willott and his mother until May or June of 1992, I infer that if there was any contact between them at all, it was brief and infrequent. Mr. Willott had been ill. Then in June of 1992 Mr. Willott wrote Ms. Willott a short letter, apparently in response to a note he had received from her. He said in future he would explain his mental illness to her, and closed with the following words: "Though I have hurt you in past I still think of you and your ways tenderly." Shortly thereafter, he signed another letter which he dictated to his wife (who shall be referred to hereafter as Ms. Dawson Willott) which enclosed a statement concerning his mental illness which had been prepared for criminal court proceedings (which had resulted from behaviour during an episode of his illness). About six weeks later, Ms. Dawson Willott again wrote to Ms. Willott about Mr. Willott's schizophrenia and his improved condition. Ms. Willott kept these letters, and others which she received later, and they were set aside in a special box for her executor in anticipation of her death.
[30] In late 1992, Ms. Willott took steps to change her will. She went to see Edward Strongitharm, Q.C., who had prepared the 1989 will and who had been the Willott's solicitor for many years; he had even been retained by Oliver Willott to deal with Andrew Willott's criminal matters on one or two occasions many years before. In the fall of 1989, Ms. Willott had gone to see Mr. Strongitharm, accompanied by Mr. Onwood, to inquire about getting a restraining order against her son because of his behaviour at that time. Before Ms. Willott went to see Mr. Strongitharm about a new will she spoke with Beverley Wilson about her proposed will. Ms. Wilson had belonged to Ms. Willott's congregation for a number of years before moving to Victoria. Ms. Wilson had worked as a legal secretary and was familiar with wills and trusts. Ms. Wilson accompanied Ms. Willott when she went to see Mr. Strongitharm. Mr. Strongitharm testified that when Ms. Willott came to see him about the new will she was very certain about what she wanted to do: she wanted to look after her son and to show her respect for her church. He said he discussed trusts, life interests and the possible consequences to Mr. Willott's "GAIN benefits" (income he was receiving under the Guaranteed Available Income for Need Act. Mr. Willott currently receives income under one of the Acts which has replaced the GAIN Act: the Disability Benefit Program Act (R.S.B.C. 1996, c. 97),). Mr. Strongitharm referred Ms. Willott to another lawyer in his office, Leonard Krog, to complete work on her will, as he was just about to retire.
[31] After the office visit, Mr. Strongitharm wrote Ms. Willott a letter dated December 2, 1992. The letter raised a number of concerns and included the following paragraph:
To better ensure that the "handicap" payments to your son, Andrew, will not be affected by his inheritance from you it is necessary to provide for a discretionary trust to be administered by one or more trustees. If you make an outright gift to your son, the result would likely be that he would not receive the handicap pension until he had virtually exhausted the funds, his inheritance from your estate.
Enclosed with the letter were five pages of material entitled "Estate Planning Counselling Material." Those pages touch upon provisions for handicapped offspring (among other matters) and the use of discretionary trusts to supplement government benefits to the handicapped.
[32] Ms. Willott had a further conversation with Mr. Krog and she also provided some written instructions. Mr. Krog drafted a will and he met with Ms. Willott to review it prior to preparing the final draft. Mr. Krog could not recall his exact discussions with Ms. Willott which is not surprising considering he has, as he testified, drafted hundreds of wills. He did know the size and assets of the estate and the approximate income from the rental units. However, one thing which he did not know was that only one-half of Lot 1 legally belonged to Ms. Willott; its entire value was included in the calculation of the value of the estate and its income. Mr. Krog understood that Mr. Willott would receive approximately 35% of the "value" of the estate based on the inclusion of all of Lot 1 in that value. In fact, Mr. Willott's share in the estate is less than 18 percent of its total value.
[33] Although Mr. Krog cannot recall exactly what he told Ms. Willott about her provisions for Mr. Willott, Ms. Wilson testified that after the will was signed Ms. Willott told her that Mr. Krog had thought the will was unfair to Andrew Willott. Ms. Wilson suggested she see another lawyer for advice on other options. But, Ms. Wilson formed the opinion that Ms. Willott was content with the will as drafted and no longer wanted to deal with the matter further.
[34] Ms. Willott also spoke about this will with Ms. Graham. Ms. Willott had told her the lawyer had said she had not left her son enough money to run the property. Ms. Willott told Ms. Graham, however, that Andrew Willott would "live like a king." She said Ms. Willott was firm and knew her own mind. She added, speaking of Ms. Willott "she knew what was best, and what was best for you, too."
[35] Ms. Willott's will is dated January 29, 1993. Her estate was to be distributed as outlined in paragraphs [2] and [3] above. It also contains the following:
In drawing my Will, my concern is for the welfare of my son, and I make this Will mindful of the limitations of my son to cope with his surroundings and provide for himself. It is my hope and faith that in time, Andrew will come to be able to have full and continued capacity to manage his affairs. For this reason, I have, by making the bequests hereinbefore set out, provided for him a comfortable living and income sufficient to maintain him appropriately. I have also taken into consideration the support and kindness shown me over the years by the organization of Jehovah's Witnesses and would like to thus express my appreciation to them by way of a donation to the Watchtower Bible & Tract society and the Cedar Congregation, of which I am a member.
[36] From the time Ms. Willott signed her will in January of 1993 until her death in September of 1995, she continued to receive cards and letters from her son and his wife; she responded on a few occasions. There was very little direct contact between mother and son until the two weeks or so immediately before her death.
[37] Much evidence was lead about the character of Ms. Willott and Andrew Willott and about their behaviour toward one another. Iris Willott was described as frugal, loving, hardworking, independent, considerate, and devoted to her faith. Those closest to her said she was always concerned about her son. At times she was fearful of him.
[38] Andrew Willott said of his mother that she was a "strange bird." He described her as opinionated, inflexible and "nit-picking." He agreed she was frugal.
[39] During episodes of Mr. Willott's illness he was seen by many as very frightening. A large, powerful man, he was very difficult to subdue. On occasion, when he was hospitalized, the hospital staff had to call for police assistance with him. Many people have also seen his goodness and kindness.
[40] Both mother and son attracted the loyalty and love of others; in this way (and perhaps in other ways) they were much alike. I am satisfied that what Mr. Willott said about his relationship with his mother was very true: "I guess we mutually loved one another in our own way." I am also satisfied that each was hurt by and disappointed in the other, although the hurt was unintentional and the disappointment inevitable as each wanted the other to be something other, or more, than he or she was.
[41] Ms. Willott's frugality expressed itself in the way she lived her daily life. She would mend rather than replace. Mr. Onwood testified that she used the rental income she received for her living expenses; the English pension she received as well as her Canada Pension went into her savings or securities. For the years 1986 through 1995 her annual net income from rents averaged $5,409. Over that period the lowest net amount she received was $2,873 and the highest was $11,223. Her average net rental income without consideration of the lowest and highest years was approximately $6,350. The rental income was always divided, for tax purposes only, equally between Ms. Willott and her son.
[42] In late 1992, Mr. Willott with the help of his wife, picked a new physician, Dr. Julian Lisinski. In a report dated February 19, 1997, Dr. Lisinski wrote:
In approximately 1992/1993, I became convinced that the problem with the medical management that Andrew Willott was undergoing was that he was not received the correct medications. Unfortunately, the correct medication was not available at that point in time. The correct medication became available when the drug Respiradol was finally made available to Canadians, specifically to British Columbians. Andrew was a patient in Riverview Hospital at this time, and in fact when I asked the Riverview staff to give him a trial of this drug, they were very reluctant to do so. In fact, I was only able to do this myself after his wife had brought him home and with her permission and with his guarded consent we commenced him on a trial of Respiradol with excellent results. However, unfortunately, Andrew developed side-effects to the Respiradol; and although it has kept his Schizophrenia at bay and has allowed him to lead a normal life, it has meant that he has also become afraid of this drug and afraid of its potential side-effects such that he is now very reluctant to use it.
[43] The Riverview Hospital admission referred to by Dr. Lisinski above took place in September of 1993. Mr. Willott's response to Respiradol was dramatically positive. According to Ms. Dawson Willott his life changed and he started to take interest again. This significant improvement was reported in correspondence to Ms. Willott.
[44] In the spring of 1995 Ms. Willott became ill again. In late May of that year she asked Ruth Onwood, Stephen Onwood's daughter who was then 14, to come and stay with her "for a few days." Ms. Onwood lived there until August 26, except for one week in early July when Ms. Willott travelled with Celia Onwood to California to seek alternative cancer treatment at a Mexican clinic. Celia Onwood also spent many hours assisting Ms. Willott.
[45] When Ms. Willott returned home from the journey to California, her condition deteriorated rapidly. The Onwoods organized the congregation to provide care and meals. Many people, dozens of people, contributed time and effort so that Ms. Willott could stay at home for the last weeks of her life. Ruth, Celia and Stephen Onwood each devoted many hundreds of hours to Ms. Willott in her last months. All of these hours were gifts of love, freely given, without expectation of reward from Ms. Willott.
[46] Mr. Willott learned from a friend of his mother's trip for treatment. He asked her doctor to help him get in touch with her. Ms. Willott agreed. They visited together about four or five times, mostly shortly before her death. She saw both Mr. Willott and Ms. Dawson Willott (the later at Ms. Willott's request) two days before she died. I am satisfied that Ms. Willott and her son as well as her daughter-in-law had reconciled with one another before Ms. Willott's death, but neither Mr. Willott nor Ms. Dawson Willott attended her memorial service. However, Mr. Willott sent a card to the elders asking that it be read at the service. It said this:
I would like to express my heartfelt thanks for the love and self sacrifice demonstrated by the women of the Cedar & Ladysmith congregations who devoted themselves to the care of my mother in her last days, thus enabling her to die, as she wished, at home.
I am especially grateful to Celia and Ruth Onwood, who lovingly and tenderly cared for her down to the end. Mom fought valiantly for life, holding it sacred. The creator willing, we will all see my Mom again in the resurrection.
Thanking you once more,
Andrew Willott
[47] There is no evidence that Ms. Willott knew the amount of Mr. Willott's income at the time of her death. She would have learned the following from a letter signed by her son (although drafted by his wife) dated September 3, 1995:
We may be poor financially and materially by the average affluent persons' standards, but we are rich spiritually. I use this term, not in the religious sense you are familiar with, but in the moral aspect, having to do with refinement of thought and feeling. What little we have in a monetary sense we try to use wisely and unselfishly. As Andrew says, if commerce depended on his shopping habits as a consumer, the retail stores would be bankrupt!
However, he did make his first major jewelry purchase, since 1965, just this past week. Because we did things in such a rush, and there were more important things to consider at the time, we never got around to purchasing a (sic) 14K gold with three diamond marriage band. It's beautiful, but not as beautiful as him!
[48] I find it probable that Ms. Willott knew Ms. Dawson Willott was not employed for wages outside the home. Further, earlier correspondence to Iris Willott had stated that Ms. Dawson Willott was no longer receiving the unemployment insurance benefits she had received following her last period of employment.
[49] At the time of trial, Mr. Willott was receiving $1,128 in monthly benefits for the support of himself and Ms. Dawson Willott who receives no income herself. Undoubtedly, their income was no more than that at the time of Ms. Willott's death. Of the $1,128, $520 is the shelter allowance which covers rent, heat, cablevision and the like. Benefits also provide them with medical, dental, eye care, prescriptions and three hours of home support weekly. This means they have $608 per month to cover all of their expenses other than those mentioned. They must, of necessity, live very frugally, as they had been living prior to Iris Willott's death.
[50] Mr. Willott and his wife are additionally challenged to live on this very limited income due to a further medical problem that now faces Mr. Willott, a condition which became known after Iris Willott's death.
[51] In 1996, Dr. Lisinski discovered that Mr. Willott was positive for Hepatitis B. As a result of that, in late 1996, he went into liver failure and developed massive ascites. Dr. Lisinski said this in his report dated February 19, 1997:
Unfortunately now, one enters into the situation where we have to evaluate what Andrew's future is. He has cirrhosis of the liver as the result of being Hepatitis B positive. In 1996, he almost died as a result of this. He still is at risk of a future episode of liver failure, possibly culminating in a complete destruction of his liver. In the meantime, his psychiatric condition, although under control, has recently shown some signs of faltering. Respiradol is no longer the friend it use to be. This may be because his liver is unable to tolerate the side-effects of Respiradol or it may be that the innumerable drugs that were pumped into Andrew in the past are finally catching up with him and starting to take their toll.
[52] Dr. Bennett Horner, a specialist in internal medicine, provided an opinion, which I accept, regarding Mr. Willott's life expectancy. His conclusion was as follows:
It is difficult to give an exact figure but certainly in light of the fact that Mr. Willott is compensated at the present time but has cirrhosis to the degree of having ascities related to liver disease I think 50% change (sic: chance) of living five years and perhaps 25% of living ten years would be reasonable figures.
[53] As a result of Mr. Willott's conditions, in Dr. Lisinski's opinion, he needs the total care which is provided by Ms. Dawson Willott. She must be attuned to and watchful of him. Without her care, Dr. Lisinski opined that Mr. Willott would be in hospital permanently. He requires a high carbohydrate diet with little or no chemicals or additives. He must take vitamins. He needs space and privacy and needs to be able to get out-of-doors. At the same time, he needs to have access to his physician and pharmacy.
Analysis
[54] A testatrix's obligation to make adequate provision for the proper maintenance and support of a child is based upon the testatrix's knowledge of all relevant circumstances at the time of her death (or perhaps more precisely, at the time she last had testamentary capacity). It would be unreasonable, in my view, to look at the testatrix's "judiciousness" at a time other than that. Therefore, the provisions made for Andrew Willott's maintenance and support must be analyzed without reference to his liver condition. A testatrix or a testator is expected to achieve justice, but is not expected to be prescient.
[55] It was, as noted, Ms. Willott's express intention to provide her son with "a comfortable living and income sufficient to maintain him appropriately." Considering the historical figures of the income generated from the net rents received from all the rental units on Lot 1 (which I find to have been $529 per month) and the fact that the rental income would prevent Mr. Willott from receiving disability benefits, I find that the provisions of Ms. Willott's will could not fulfil her stated intention, based on all of the circumstances at the time of her death. If Mr. Willott chose to live in one of the residences on Lot 1 and rent out the rest, his income from rents would be considerably reduced. If Mr. Willott chose to live in one of the residences on Lot 1 and not rent out the others, he would still be entitled to receive disability benefits. However, he would have the sum of $608 per month, as he now has, to cover expenses for himself and Ms. Dawson Willott. I find that amount of income to be insufficient to meet Mr. Willott's present needs; I find it is certainly insufficient to provide him with the "comfortable living" Ms. Willott intended even were he not suffering from the liver condition he now has.
[56] I find that Ms. Willott intended to leave Mr. willott with a share of her estate that would make adequate provision for his proper maintenance and support as contemplated by the Wills Variation Act. By inadvertent error, or by an inaccurate appreciation of the facts coupled with a failure to appreciate the law to which she had been alerted by her solicitors, she failed to do so.
[57] Therefore, it is now the courts task "to make orders which are just in the specific circumstances and in light of contemporary standards." Tataryn v. Tataryn [1994] 7 W.W.R 609 (S.C.C.). The Tataryndecision is the leading authority dealing with the principles applicable to British Columbia's Wills Variation Act. Madam Justice McLachlin, at p. 615 defines the interests protected by the Act:
The two interests protected by the Act are apparent. The main aim of the Act is adequate, just and equitable provision for the spouses and children of testators. The desire of the legislators who conceived and passed it was to "ameliorat[e] ... social conditions within the Province". At a minimum this meant preventing those left behind from becoming a charge on the state. But the debates may also be seen as foreshadowing more modern concepts of equality. The Act was passed at a time when men held most property. It was passed, we are told, as "the direct result of lobbying by women's organizations with the final power given to them through women's enfranchisement in 1916". There is no reason to suppose that the concerns of the women's groups who fought for this reform were confined to keeping people off the state dole. It is equally reasonable to suppose that they were concerned that women and children receive an "adequate, just and equitable" share of the family wealth on the death of the person who held it, even in the absence of demonstrated need.
The other interest protected by the Act is testamentary autonomy. The Act did not remove the right of the legal owner of property to dispose of it upon death. Rather, it limited that right. The absolute testamentary autonomy of the 19th century was required to yield to the interests of spouses and children to the extent, and only to the extent, that this was necessary to provide the latter with what was "adequate, just and equitable in the circumstances." And if that testamentary autonomy must yield to what is "adequate, just and equitable", then the ultimate question is, what is "adequate, just and equitable" in the circumstances judged by contemporary standards. Once that is established, it cannot be cut down on the ground that the testator did not want to provide what is "adequate, just and equitable".
She goes on to say at p. 619:
If the phrase "adequate, just and equitable" is viewed in light of current societal norms, much of the uncertainty disappears. Furthermore two sorts of norms are available and both must be addressed. The first are the obligations which the law would impose on a person during his or her life were the question of provision for the claimant to arise. These might be described as legal obligations. The second type of norms are found in society's reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards. These might be called moral obligations, following the language traditionally used by the courts. Together, these two norms provide a guide to what is "adequate, just and equitable" in the circumstances of the case.
[58] The first question that must be addressed after a finding that the testatrix did not make adequate provision for the
proper maintenance and support of a child, then, is what legal obligations did she have toward the child during her lifetime. In this case, the answer is none. The B.C. legislature has imposed no legal duty on a parent to support financially an adult child who cannot, for whatever reason, support himself. In this case, I find as a fact that Mr. Willott has no legal claim for unjust enrichment against his late mother's estate by virtue of the work and chores he performed or by virtue of the fact that he did not receive a share in the rents from Lot 1 after a one-half interest in it was gifted to him by his father.
[59] McLachlin, J. in Tataryn(supra) says at p. 619:
The legal obligations on a testator during his or her lifetime reflect a clear and unequivocal social expectation, expressed through society's elected representatives and the judicial doctrine of its courts.
The Wills Variation Actdoes not make specific reference to adult children who are "dependant" as distinct from children, simpliciter. This is, for example, very different from the Alberta equivalent to our Act, the Family Relief ActR.S.A. 1980, c.f-2 which only allows dependants to apply to vary the will of a testator. "Dependant" is defined in s.1 of the Family Relief Actas follows:
"dependant" means
(i) the spouse of the deceased,
(ii) a child of the deceased who is under the age of 18 years at the time of the deceased's death, and
(iii) a child of the deceased who is 18 years of age or over at the time of the deceased's death and unable by reason of mental or physical disability to earn a livelihood;
[60] In Alberta, unlike British Columbia, no adult independent child has status to bring an action to vary his or her parent's will.
[61] The central issue raised by the case at bar can be relatively simply stated: is a testatrix in British Columbia subject to an implicit legal or moral obligation to provide maintenance and support for an adult child who is not financially independent in substitution for the support provided to that child by the state during the testatrix's lifetime or, if the whole of the circumstances warrant it, is she only required to provide adequate support in addition to state support?
[62] It appears there may be two lines of authority in British Columbia addressing this question. MacKinnon, J. dealt with the issue in Penty v. Mott(1984) 16 E.T.R. 175 B.C.S.C. In that case the deceased left nothing to her mentally handicapped state supported adult son; all of her estate was left to charity. The court said this at page 179:
Counsel have produced no authority to support the proposition submitted that a "better life" is the proper criterion or test by which the Court should determine if the testatrix made adequate provision for the care and maintenance of Donald. I am of the view the issue here is whether or not an award should be made when Donald's needs are now being provided by the public purse. Implicit in the submission of the defendants is the proposition that, if all of Donald's needs are properly met by the public purse, then no award should be made. The authorities do not support such a proposition.
[63] After canvassing a number of authorities from Manitoba, Saskatchewan and British Columbia, MacKinnon, J. found "the testatrix failed in her moral obligation to provide for her son" (p. 181).
[64] In Stone (Public Trustee of) v. Stone et al (1994) 4 E.T.R. (2d) 165 (Alta. Ct. Q.B.) Kent, J. cites Penty(supra) and the decisions referred to in it in support of the conclusion that "the moral duty is not discharged by virtue of the fact that the government will look after the dependant person." (p.173) At the same page, she continues as follows:
. . . This view is more in accord with the moral underpinnings of the Alberta Act. There is nothing in any government subsidy programme which removes the moral obligation that a parent has for dependant child.
Counsel for Charles Stone argues however that there is a right to receive AISH, and that right relieves the testator from his moral obligation. He relies upon the decision in Re Kinloch, supra, where the court did take into consideration the imminent institution of a universal hospitalization scheme in Alberta. Without entering the political debate about what rights and privileges exist in the current Canadian health care system, the Canada Health Actappears to require provincial health care schemes that qualify for funding to have universal access.
There is nothing in the legislation establishing the AISH subsidy which creates a right to receive the benefit. The legislation uses the word "may" and the Director's discretion can only be exercised if the Legislature exercises its authority and grants funds. While I agree that there is no evidence that this particular programme will be eliminated or reduced in the near future, it would be unrealistic to ignore the fact that governments throughout this country are reconsidering all aspects of our social safety net in light of the severe financial stresses brought about by our debt and deficit. There is no right to receive AISH and there is no guarantee that it will continue into the future.
[65] In both Pentyand Stonethe entirety of each estate was held in trust for the applicant and the awards made in each case were subject to review.
[66] In 1996, Madam Justice Boyd dealt with the claims of three adult children against an estate valued at approximately $950,000: Newstead v. Newstead(1996), 11 E.T.R. (2d) 236 (B.C.S.C.). Boyd, J. found the testator had not made adequate provisions for any of the three claimants. One of those children was living in a group home and fully supported by provincial programmes. The following is the finding with respect to her claim (p. 38-39):
. . . Since a substantial part of any award to Sherryle would be reimbursed to the government, rather than find its way directly to Sherryle, he submits that the Court should decline to make any award in her favour. At most, he suggests that the Court order that funds be set aside to provide for amenities and comforts for Sherryle over and above the amounts required for basic care.
While there are various lines of authority which support these principles, I am satisfied that the general thrust of the law is otherwise. As Mr. Amighetti notes in his text (supra at pp. 94-94) (sic) the law appears to be clear that "a testator's moral obligation to provide for a mentally incompetent dependant is not negated by the provision of care under a state schemes (sic). In effect, a testator has a duty to absorb or reimburse the state for such costs." Further, "the testator's obligation to contribute to the mentally incompetent dependant's maintenance exists regardless of whether or not the dependant would benefit personally from any part of the contribution." He finds support for both propositions in this Court's decision in Penty(supra).
In any event, I have some difficulty with the proposition that both the testator and the Court can safely rely on some guarantee of continued government funding of Sherryle's needs and that any award to Sherryle ought to (sic) simply to provide for amenities over and above the basic care provided under government funding.
[67] After quoting Kent, J. in Stone, Boyd, J. concludes at p. 40:
For all of these reasons, including her age, her needs, and all of the other circumstances of this case, I find, on the basis of his moral obligation to her that the testator's will must be varied to ensure that Sherryle is adequately cared for. In my view, the award must go beyond the mere provision of comforts and amenities and beyond government financed basic care.
[68] In Public Trustee v. Jacobson Estate (1987), 58 Alta. L.R. (2d) 355 a testatrix divided her estate equally among twelve children one of whom was an institutionalized adult. MacKenzie, J. was dealing with the Alberta Family Relief Actreferred to above. At page 356 he said this:
One of the rights of the child, of the dependent child, is to receive care from the state, and I think that it is well that we recognize in this day and age that to be some type of right and not a form of benign charity, but rather a fundamental right that all citizens have in this country that we not have to suffer alone the consequences of severe disaster, at least when it comes to medical and physical care of people who are rendered truly dependent. That is a right to which all citizens are entitled.
It strikes me that it is unfair that we should look to an estate to carry that particular burden simply because a mother or father has died. Of course, if there is sufficient money in the estate and the mother or father has disposed of it in a way that is unfair to that child, then an application is quite appropriate under this Act. But when you look at the circumstances and you say what has been done is fair, each of these children is entitled to a fair share in the estate, then I think that the wishes of the parent should be respected.
Some of the older thinking, and I am going back several years now, I think has to be disposed of. We can go back into our social history to a time when, and it is not too many years ago, to a time when poverty was considered a moral fault of the poor person, and, indeed, mental illness was considered a moral fault of the mentally afflicted as were also many physical disabilities. There was a tendency in the thinking to look for blame and to often look to the family as being the cause of the problem, and therefore, it was only right that the family should carry the burden. Surely in 1987 we have come to a point where we recognize that certain afflictions are not the fault of anybody in particular, and that the consequences of those afflictions should be borne by all of us rather than by the afflicted alone.
In this particular case I am told that many members of the family are doing more than is expected of others in our community to look after afflicted people. They happen to be related, but that really is beside the point. They are doing more.
In brief, I would simply say that the disposition made by the mother, in my view, is equitable and right in all the circumstances. She did not ignore the situation of this particular daughter, and indeed, made reasonable provision for the daughter. She had the burden of making reasonable provision for all of her children, and that is what she has done, and I deny application.
[69] Kent, J. in Stone(supra) distinguished Jacobson(supra) at p. 173, saying only:
Mr. Justice MacKenzie makes it clear that his reasoning would not apply in a case where there was sufficient money in the estate or where there was some unfairness to one of the children in the will. He was obviously not dealing with a situation such as the one before me.
[70] In Barnsley v. Barnsley Estate(1997), 28 B.C.L.R. (3d) 165 (B.C.S.C.) Shabbits, J. referred to both Jacobsonand Newsteadwhen deciding the application of an adult child with Down's Syndrome with respect to an estate of $550,000. The testator had bequeathed $5,000 to each of four grandchildren and divided the residue between the applicant's three independent siblings. The following findings are made at p. 173:
. . . The support from the state which Sarah receives is of a basic level. There are other goods and services which would be of benefit to her. These include speech language treatment and life skills training. There are numerous other expenditures which would promote her independence. It is unfortunate that Sarah has thus far received few of these "discretionary" benefits. I am of the view that she has a strong moral claim against her father's estate for the future funding of such benefits.
There is, as well, the ongoing concern that Sarah's present care funding is not guaranteed. It is subject to review and decree.
The testator's other three children are of good health. They are financially independent. They were close to the testator. All received some advances from the testator during his lifetime. The testators' two oldest children, in turn, financially assisted him when he was in need. The testator's making provision for them in his will is just and equitable. The testator's disinheritance of Sarah is not. The testator's decision to disinherit Sarah fell below his obligations to her as defined by reference to moral norms. The application made on Sarah's behalf must succeed.
All four of the testator's children have a moral claim on his estate. At the time of the testator's will and death, none of the four children were financially dependent on him. Although Sarah is supported by the state, that support is not guaranteed. Neither is the income or support enjoyed by the testator's other three children. Nevertheless, an "adequate, just and equitable" order requires that Sarah receive more than the other three of the testator's children. Sarah's needs are greater. She did not receive the benefit of any advances during the testator's lifetime.
[71] Shabbits, J. then awarded the applicant (Sarah) a discretionary trust of $150,000 to be paid rateably from the shares of her siblings.
[72] If, as Madam Justice McLachlin said in Tataryn(supra) "the legal obligations on a testator during his or her lifetime reflect clear and unequivocal social expectation" then that same social expectation must reflect the extent of the testators moral obligations vis a vishis neighbours and fellow taxpayers after his death. In other words, if the legislature wishes to require a testator to support an adult child who is financially dependent in substitution for support provided by the province it must, in my view, express that social expectation by an unequivocal provision in the Act.
[73] Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some "extras" for the disabled person. Thus arise the exemptions in the Disability Benefits Program Actand the Regulations to that Act.
[74] I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Actwill cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother's death and the other factors the court is required to consider when dealing with Wills Variation Actactions, including the size of the estate.
[75] I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott's effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.
[76] In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott's death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.
[77] The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.
[78] The additional lump sum payment shall fall rateably on the estate. Mr. Onwood's share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation's share of the estate shall be satisfied, following which the Society shall receive its share.
[79] Unless otherwise agreed, costs may be spoken to.
[80] If I have wrongly answered the question posed in paragraph 61 above, then I would order the entire residue of Ms. Willott's estate (after payment to Mr. Willott of the additional cash sum) to be held in trust for the benefit of Mr. Willott during his lifetime following which it is to be distributed in accordance with the provisions of Ms. Willott's will.
[81] Mr. Willott undoubtedly feels that his mother's will has treated him unfairly. He would like to have most, if not all, of her estate to care for himself during his lifetime and to leave an estate to his wife and the family he enjoys through her. That this court cannot do. As Carrothers, J. said in Lukie, et al v. Helgason and Lukie (1977), 1 B.C.L.R. 1 (B.C.C.A.):
. . . I repeat that we have no power to recast the testator's will or to redress inequalities or fancied injustice, but only to secure a sufficient provision for the proper maintenance and support of those children of the testator who have been left by him without proper and adequate means of support.
"Downs, J."