Brewer v. Bureau of Indian Affairs, 1997 DSD 1

ALVINA BREWER,
Plaintiff,
v.
THE BUREAU OF INDIAN AFFAIRS
of the Department of the Interior, United States Government,
Defendant.
[1997 DSD 1]

United States District Court
District of South Dakota - Western Division
CIV. 96-5045

MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Filed Jan 13, 1997.

RICHARD H. BATTEY, Chief Judge

NATURE AND PROCEDURAL HISTORY

[¶1]  Plaintiff is a retired and re-employed employee of the Bureau of Indian Affairs (BIA), Pine Ridge Agency for Education, at the girl’s dormitory of the Pine Ridge High School. On May 29, 1996, plaintiff commenced this action to recover back pay wrongfully withheld from her wages. The original complaint alleged claims against Laurence T. Lorenz, the Director of the Office of Personnel Management; Norma Tibbits, William Gipp, and Basil Brave Heart, employees or former employees of the BIA in their official and individual capacities; the BIA of the Department of the Interior; the United States Government; and the Office of Personnel Management.

[¶2]  On October 11, 1996, defendants filed a motion to dismiss for lack of subject matter jurisdiction based on the following grounds: (1) plaintiff has not alleged any statute which waives the sovereign immunity of the United States with respect to her claims; (2) plaintiff has failed to plead either statutory waivers or specific exhaustion of administrative remedies which would be prerequisite to suit under the Administrative Procedure Act (APA) or the Civil Service Reform Act (CSRA); and (3) CSRA provides the exclusive remedy for federal employees claiming losses incurred in connection with federal employment and pay. Plaintiff has responded.

[¶3]  On October 15, 1996, prior to the filing of an answer by defendants, plaintiff filed a motion to amend complaint together with a copy of the amended complaint dismissing all defendants except the BIA of the Department of the Interior, United States Government. On December 17, 1996, the Court granted leave to amend. However, as demonstrated below, the amended pleading fails to cure the jurisdictional deficiencies regarding the remaining governmental defendant and therefore does not defeat defendant’s motion to dismiss. See generally Norbeck v. Davenport Community School Dist., 545 F2d 63, 70 (8th Cir. 1976) (concluding that it was not an abuse of discretion to deny a party the right to amend where the allegations contained in the amended complaint did not remedy the deficiencies present in the original complaint).

FACTS

[¶4]   In her amended complaint, plaintiff alleges that in 1962 she was originally employed by defendant BIA as an educational aide in the girls’ dormitory at Pine Ridge High School. See Amended Complaint at ¶ 4. In 1984 she became the dormitory manager and continued said position until her retirement on January 1, 1988. Id. at ¶ 5. Thereafter, the BIA requested plaintiff to return to her position as dormitory manager and as part of the inducement for her return, the BIA promised to seek payment of her full salary without deduction for her annuity. Id. at ¶¶ 7-8.1. In the event that it was not then possible for her to receive her full salary without deduction, plaintiff alleges that the BIA promised to seek payment of her full salary without deduction for her annuity at such time as it became possible to do so. See Plaintiff’s Amended Complaint at ¶ 10.{fn1} Furthermore, as part of the inducement for her return, the BIA promised to inform her of any change in the law which would permit her to receive her full salary without deduction from her annuity in the event that she was not eligible for full salary without deduction upon her re- employment. Id. at ¶ 9. Plaintiff alleges that based upon these promises and commitments, she agreed to return to the BIA. Id. at ¶ 11.

[¶5]  Thereafter, unbeknownst to plaintiff, Congress enacted the Federal Employees Pay Comparability Act of 1990 (FEPCA),2. Pub.L. 101-509, Title V. Nov. 5, 1990, 104 Stat. 1427 (5 USC §§ 3132, 3304a, 3324, 3326, 3405, 3594, 4502, 4505a, 4521, 4521 note, 4522-23, 5102, 5104, 5108, 5109, 5301, 5301 note, 5302, 5303, 5303 notes, 5304, 5304 note, 5304a, 5305, 5305 notes, 5306-8, 5311, 5313-16, 5318, 5331, 5333, 5335, 5361, 5363, 5371, 5372, 5372 note, 5372a, 5373, 5367, 5376 note, 5377, 5378, 5378 note, 5382, 5383, 5391, 5392, 5403, 5405, 5524a, 5532, 5541, 5541 note, 5542-45, 5547, 5595, 5706b, 5723, 5753-55, 5901-3, 8335, 8335 note, 8344, 8425, 8431, 8468, 8476); Pub.L. 102-378, § 3, Oct. 2, 1992, 106 Stat. 1355 (5 USC §§ 5304 note, 5305 note, 5378 note, 5545); Pub.L. 103-89, § 3(b)(2), Sept. 30, 1993, 107 Stat. 982 (5 USC § 5304 note); Pub.L. 103-123, Title VI, §628, Oct. 28, 1993, 107 Stat. 1266 (5 USC § 5305 note); and Pub.L. 103-178, Title III, § 303(a), Dec. 3, 1993, 107 Stat. 2034 (5 USC § 5305 note).{fn2} which permitted exceptions to the reductions in pay for both emergency employment purposes, as well as for exceptional difficulty in recruiting or retaining a qualified employee. Id. at ¶ 12. Plaintiff contends that the BIA breached its obligation to inform plaintiff of this change in law. Id. at ¶ 13. She further alleges that the BIA also failed to provide copies of the Federal Personnel Manual System Notices and Manual changes to her in a timely manner, which would have informed her of the changes in the law and regulations permitting her to obtain her annuity as well as her earned salary. Id. at ¶ 14.

[¶6]  In December of 1992, plaintiff became aware of the changes brought about by FEPCA, informed her supervisors of said changes, and submitted her request to obtain her salary without deduction of her annuity. Id. at ¶¶ 15-16. On August 23, 1994, nearly two years after plaintiff submitted her request, the Office of Personnel Management agreed plaintiff was entitled to and qualified for her full salary without deduction for her annuity. Id. at ¶¶ 17-18. Plaintiff alleges that defendant has arbitrarily and capriciously failed and refused to pay her the salary which was deducted from her earnings from the effective date of FEPCA through August 23, 1994, which amounts to approximately $35,000 plus interest.3. The Court arrived at the $35,000 amount by multiplying the number of pay periods from November 5, 1990, through August 23, 1994, which is approximately 100 by $350, which is the amount plaintiff alleges defendant withheld each pay period. See Plaintiff’s Responsive Brief at Appendix A, pg. 3. Furthermore, approximately $15,400 plus interest was allegedly withheld from the date of plaintiff’s request for a waiver of deductions on December 18, 1992, through August 23, 1994. This figure was arrived at by multiplying the number of pay periods from December 18, 1992, through August 23, 1994, which is approximately 44, by the $350 figure.{fn3} Id. at ¶ 19. Plaintiff asserts that she has exhausted all available administrative remedies. Id. at ¶ 20. Finally, plaintiff alleges jurisdiction pursuant to 28 USC 1331 and FEPCA. Id. at ¶ 3.

STANDARD OF REVIEW

[¶7]  Subject matter jurisdiction is a threshold issue which must be assured in every federal action. Kronholm v. Federal Deposit Ins. Corp., 915 F2d 1171, 1174 (8th Cir. 1990) (citing Barclay Square Properties v. Midwest Fed. Sav. & Loan, 893 F2d 968, 969 (8th Cir. 1990)). According to the Eighth Circuit Court of Appeals,

A court deciding a motion under Rule 12(b)(1) must distinguish between a “facial attack” and a “factual attack.” In the first instance, the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). The general rule is that a complaint should not be dismissed “‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”4. A plaintiff’s claim should not be dismissed for failure to state a claim unless it is patently clear that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. McCormack v. Citibank, N.A., 979 F2d 643, 646 (8th Cir. 1992); Murphy v. Lancaster, 960 F2d 746, 748 (8th Cir. 1992); and 5A Charles A. Wright & Arthur R. Miller Federal Practice & Procedure § 1357, at 325 (1990) (quoting Conley v. Gibson, 355 US 41, 45-46, 78 SCt 99, 102, 2 LEd 2d 80 (1957)). For purposes of a motion to dismiss for failure to state a claim, all well-pleaded factual allegations contained in plaintiff’s complaint are taken as true. McCormack, 979 F2d at 646; Murphy, 960 F2d at 748; and 5A Wright & Miller Federal Practice & Procedure § 1357, at 304. Because a motion pursuant to Rule 12(b)(6) tests the formal sufficiency of the plaintiff’s statement of a claim for relief, as opposed to the merits of such a claim, motions pursuant to Rule 12(b)(6) must be read in light of Fed. R. Civ. P. 8(a), which sets forth the requirements for pleading a claim. 5A Wright & Miller Federal Practice & Procedure § 1356, at 294-96. Rule 8(a) states in pertinent part that “[a] pleading which sets forth a claim for relief, ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief... .”

{fn4} In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.

Osborn v. United States, 918 F2d 724, 729-730 n.6 (8th Cir. 1990) (citations omitted).

[¶8]  Although defendant does not explicitly state whether its Rule 12(b)(1) motion presents a facial or factual attack, the distinction can be determined from defendant’s argument. The basis for defendant’s argument is derived from the allegations set forth in plaintiff’s complaint. Therefore, defendant’s motion presents a facial attack in which case the plaintiff’s complaint will not be dismissed unless it appears beyond doubt that she cannot prove any set of facts in support of her claim which would entitle her to relief.

DISCUSSION

[¶9]  The doctrine of sovereign immunity provides that the United States cannot be sued unless it gives its consent, and this consent defines a court’s jurisdiction to hear a particular case. United States v. Sherwood, 312 US 584, 586, 61 SCt 767, 769, 85 LEd 1058 (1941). Pursuant to the Tucker Act,

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

28 USC § 1491. In addition, the district court does have concurrent jurisdiction to grant monetary relief on claims under $10,000. See 28 USC § 1346(a)(2). See generally United States v. Mitchell, 463 US 206, 212-18, 103 SCt 2961, 2965-69, 77 LEd2d 580 (1993) (recognizing that while the Tucker Act constitutes a waiver of sovereign immunity it does not standing alone create any substantive right enforceable against the United States for money damages).

[¶10]  Plaintiff’s claim is essentially one against the United States for the payment of damages in the amount of $35,000 plus interest. Because the claim is in excess of $10,000, it is within the exclusive jurisdiction of the United States Court of Federal Claims. See Mullally v. United States, 95 F3d 12, 14 (8th Cir. 1996); Charles v. Rice, 28 F3d 1312, 1321-23 (1st Cir. 1994); Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F2d 668, 674-75 (8th Cir. 1986); State of Minnesota by Noot v. Heckler, 718 F2d 852, 857-58 (8th Cir. 1983); Sellers v. Brown, 633 F2d 106, 107-08 (8th Cir. 1980); Polos v. United States, 556 F2d 903, 905 (8th Cir. 1977); Maxy v. Kadrovach, 696 FSupp 425, 429 (W.D. Ark. 1988).

[¶11]  Plaintiff alleges that jurisdiction of this court arises under 28 USC § 1331 and FEPCA.5. It is well settled that 28 USC § 1331 does not provide a waiver of sovereign immunity for award of monetary relief. See generally United States v. Perry, 706 F2d 278, 279 (8th Cir. 1983) (“in the absence of a waiver of sovereign immunity, this statutory provision [§ 1332] affords no jurisdictional grounds.”); Gochnour v. Marsh, 754 F2d 1137, 1138 (5th Cir. 1985); Alamo Navajo v. Andrus, 664 F2d 229, 233 (10th Cir. 1981); and Beller v. Middendorf, 632 F2d 788, 790 (9th Cir. 1980). Plaintiff is seeking review under 28 USC § 1331, rather than review under 5 USC § 702 of the Administrative Procedure Act (APA). Even so, the 1976 amendment to the APA providing for review of agency action clearly does not waive sovereign immunity as a bar to actions requesting monetary relief against the United States. See 5 USC § 702; Bruce v. United States, 621 F2d 914, 918 (8th Cir. 1980) (“It is now well established that the Administrative Procedure Act, 5 USC § 702, does not provide an independent basis for subject matter jurisdiction.”); and Califano v. Sanders, 430 US 99, 97 SCt 980, 51 LEd 2d 192 (1977) (APA is not an independent source of federal jurisdiction).{fn5} See Plaintiff’s Amended Complaint at ¶ 3. However, “the use of [either] of these statutes to entertain a claim and to grant a judgment for damages greater than $10,000 would infringe on the exclusive jurisdiction of the Court of Claims.” Polos, 556 F2d at 905 n.5 (citing Carter v. Seamans, 411 F2d 767, 771 (5th Cir. 1969)) (noting that the Tucker Act supplies jurisdiction for claims for money damages against the United States only in the Court of Claims and additional waiver of sovereign immunity may be found in the Back Pay Act, 5 USC § 5596). See also Weeks, 797 F2d at 675 (citing Marcus Garvey Square, Inc. v. Winston Burnett Construction Co. of California, Inc., 595 F2d 1126, 1132 (9th Cir. 1979); DSI Corp. v. Secretary of Housing and Urban Development, 594 F2d 177, 180 (9th Cir. 1979)) (recognizing that waivers of sovereign immunity other than the Tucker Act should not apply when the United States is the real party in interest); Mitchell v. United States, 930 F2d 893, 896 n.3, 897 (Fed. Cir. 1991) (determining that service member’s suit for back pay falls within Claims Court’s Tucker Act jurisdiction and does not lie in district court); Nero v. Cherokee Nation of Oklahoma, 892 F2d 1457, 1464-65 (10th Cir. 1989); Com. of Mass. v. Secretary of H.H.S., 816 F2d 796, 799-800 (1st Cir. 1987); Spectrum Leasing Corp. v. United States, 764 F2d 891, 895 n.8 (D.C. Cir. 1985); Clark v. United States, 691 F2d 837, 839 (7th Cir. 1982). But see Ward v. Brown, 22 F3d 516, 520-21 (2d Cir. 1994) (finding that the Back Pay Act provides an independent waiver of sovereign immunity to vest jurisdiction in the federal district court). Therefore, plaintiff’s attempt to build subject matter jurisdiction in this Court are unavailing, and her claim shall be dismissed for lack of jurisdiction.

[¶12]  The Court is cognizant of its authority pursuant to 28 USC §16316. 28 USC §1631 provides as follows:

  Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.{fn6} to transfer this matter to the United States Court of Federal Claims to cure want of jurisdiction if such transfer is found to be in the interests of justice. See Weeks, 797 F2d at 676 (remanding a case in which the district court failed to consider the option of exercising its discretion to transfer the case instead of dismissing it outright); Polos, 556 F2d at 905-906 (remanding a case in order for the district court to transfer the matter to the United States Court of Federal Claims). However, this Court declines to exercise its authority to transfer in the interests of justice because the United States Court of Federal Claims would most likely dismiss the action based on the Civil Service Reform Act of 1978 (CSRA), Pub.L. 95-454, Oct. 13, 1978, 92 Stat. 1111. See Mullally, 95 F3d at 14 (finding that a transfer would not be in the interest of justice because the Court of Federal Claims would most likely dismiss the claim).

[¶13]  In 1978 Congress overhauled the civil service system through enactment of the CSRA which prescribes the protections and remedies available to federal employees for personnel actions or injuries sustained in the context of personnel actions. See 5 USC §§ 1101-05, 1201-22, 2301- 05, 7501-14, and 7701-03; Lindahl v. OPM, 470 US 768, 773, 105 SCt 1620, 1624, 84 LEd2d 674 (1985) (recognizing that the CSRA “comprehensively overhauled the civil service system”). Because the remedies available to federal employees under the CSRA are exclusive, the CSRA bars suit for money damages under the Tucker Act. See United States v. Fausto, 484 US 439, 453, 108 SCt 668, 677, 98 LEd2d 830 (1988) (concluding that the CSRA repealed “the judicial interpretation of the Back Pay Act-or, if you will, the Back Pay Act’s implication-allowing review in the Court of Claims of the underlying personnel decision giving rise to the claim for backpay.”). See generally Schweiker v. Chilicky, 487 US 412, 108 SCt 2460, 101 LEd2d 370 (1988) (barring of money damages under Bivens); Bush v. Lucas, 462 US 367, 103 SCt 2404, 76 LEd2d 648 (1983) (barring of money damages under First Amendment claim); and Premachandra v. United States, 739 F2d 392, 394 (8th Cir. 1984) (barring of money damages under FTCA).

CONCLUSION

[¶14]  After reviewing the arguments presented by both parties, this Court finds that it lacks jurisdiction to reach the merits of plaintiff’s claim. Furthermore, it would not be in the interests of justice to transfer this matter to the United States Court of Federal Claims because said Court would most likely dismiss the action based on the CSRA. Accordingly, it is hereby

[¶15]  ORDERED that defendant’s motion to dismiss (Docket #6) is granted. A judgment of dismissal shall be issued forthwith.



United States v. Gay, 1997 DSD 2

UNITED STATES OF AMERICA,

Plaintiff,

v.

ROYCE GAY,

Defendant.

[1997 DSD 2]

United States District Court

District of South Dakota - Western Division

CR96-50078

MEMORANDUM OPINION AND ORDER

DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE

Filed Jan 13, 1997

RICHARD H. BATTEY, Chief Judge

NATURE AND PROCEDURAL HISTORY

[¶1]  On September 19, 1996, defendant was indicted for possession of controlled substances with the intent to distribute, a violation of 21 USC § 841(a)(1). Defendant filed a motion to suppress all evidence seized as a result of a search of defendant’s residence on or about August 7, 1996, as well as information obtained from defendant by the pretrial services officer and information contained in the alcohol and drug evaluation obtained at the request of the defendant’s attorney and submitted to pretrial services. The motion was referred to Magistrate Judge Marshall P. Young who held a suppression hearing concerning the motion on November 6, 1996. Magistrate Judge Young’s findings and recommendations are that the motion be denied. See Docket #25.

FACTS

[¶2]  On August 6, 1996, Sergeant Floyd Wilcox received a citizen’s complaint from defendant’s former father-in-law, Larry Bettelyoun, indicating that defendant had recently received a large shipment of marijuana which he was selling from his house (Tr. 64-65).

[¶3]  On the morning of August 7, 1996, Officer Peter Plenty Bulls of the Oglala Sioux Tribe Public Safety Commission was approached by Caroline Bettelyoun at the police department on an unrelated matter concerning a domestic dispute (Tr. 8-9). She sought his assistance in the retrieval of her grandchild from defendant’s residence because her daughter Carrie Bettelyoun, defendant’s girlfriend, and the defendant were fighting (Tr. 9-10). Officer Plenty Bulls agreed to accompany Caroline to defendant’s residence in an attempt to keep the peace (Tr. 8-10).

[¶4]  Officer Plenty Bulls followed Caroline to defendant’s residence which was a trailer whereupon she knocked on the door (Tr. 9). Defendant opened the door and Caroline advised him that “I came to get my grandchild because you are fighting.” (Tr. 9-10). Officer Plenty Bulls testified that defendant said “okay” and turned into the residence so they followed (Tr. 9). Officer Plenty Bulls followed Caroline into the trailer without stating his purpose for being there (Tr. 10-11). They did not ask permission to come into the trailer; however, there was no protest or objection to their entering the trailer (Tr. 10).

[¶5]  Upon walking into the trailer, the officer was in between the kitchen and the living room (Tr. 12, 25). He immediately detected a strong odor of pot or marijuana (Tr. 12). He did a visual search for signs of a disturbance and observed what appeared to be broken dishes or cups on the kitchen floor (Tr. 12, 29). He further observed on the kitchen table in front of him an ashtray with some cigarette butts, which he suspected to be marijuana (Tr. 13). He confirmed that it was marijuana by picking up one of the cigarette butts and smelling it. Id. Thereafter, the officer questioned defendant about the marijuana and informed him that he was under arrest for possession of marijuana (Tr. 14, 28).

[¶6]  At approximately 9:39 a.m., Officer Plenty Bulls used defendant’s telephone to call the dispatcher to request a criminal investigator (Tr. 14-15). Thereafter, defendant’s mother, Colleen Bettelyoun, arrived at the trailer (Tr. 16, 28-29, 54). Defendant started to clean up a broken dish in the kitchen, whereupon the officer told him to stop (Tr. 29). Defendant then picked up several roaches from the ashtray on the table, ran outside, crushed them, and threw them away (Tr. 30, 63). Defendant was handcuffed and placed in the police car (Tr. 31). The officer went and retrieved two of the roaches from the porch area on the ground. Id.

[¶7]  Sergeant Floyd Wilcox arrived on the scene shortly thereafter (Tr. 15, 32). At approximately 10:25 a.m., Criminal Investigator Lloyd Wilcox of the Oglala Sioux Tribe Public Safety Commission also arrived (Tr. 16, 54, 58). Officer Plenty Bulls apprised the other two officers about the situation as it existed at that time including his detection of the strong marijuana odor, the marijuana butts in the ashtray, defendant’s sweeping of the domestic dispute evidence, and defendant’s attempt to throw the roaches outside (Tr. 55, 59-62). Sergeant Wilcox also advised C.I. Wilcox of the August 6, 1996, tip that defendant had received some marijuana (Tr. 55, 65).

[¶8]  Officer Plenty Bulls’ police log entry at 10:25 a.m. states, “Lloyd is here, he said we have probable cause to search the residence, we are in the process of doing that now.” (Tr. 33) (Hearing Exhibit 9). Officer Plenty Bulls testified that this statement meant that they were going to apply for a search warrant, that they did not search the residence other than a “sweep” search (Tr. 33). Before the application for a search warrant was undertaken, the officers reentered the trailer and conducted a “sweep” search to discover (1) the whereabouts of defendant’s girlfriend Carrie Bettelyoun; (2) whether the propane was turned on in the trailer; and (3) additional evidence (Tr. 19, 34, 36, 65). They observed seven marijuana cigarette butts and some marijuana particles and seeds in the wastebasket (Tr. 36, 58, 78). Officer Plenty Bulls testified that during the sweep he just looked, and he did not touch or move any items (Tr. 34). However, C.I. Wilcox testified that he opened up a kitchen cabinet door, found a brown paper bag which he opened, and discovered a large amount of marijuana in two baggies (Tr. 37, 56, 77). He then closed the bag placing it in its original place and shut the cabinet door. Id.

[¶9]  Next, C.I. Wilcox called Stanley Star Comes Out, a Criminal Investigator with the Oglala Sioux Tribe Public Safety Commission, from defendant’s residence in order to obtain a search warrant (Tr. 22). C.I. Wilcox testified that he advised C.I. Star Comes Out about the Plenty Bulls’ observations, including the marijuana cigarette butts, and also the fact that he believed there was a large amount of marijuana in the house, based upon what he was told and what he observed (Tr. 66-67). Although C.I. Wilcox told C.I. Star Comes Out about the baggies of marijuana he discovered in the closed cabinet, the search warrant affidavit signed by C.I. Star Comes Out only references the marijuana cigarette butts and not the large amount of marijuana found in the kitchen cabinet (Tr. 69-70).

[¶10]  At approximately 11:38 a.m., after the “sweep” search and the discovery of the two baggies in the kitchen cabinet, Carrie Bettelyoun was located (Tr. 35, 68). She signed, as a co-resident, a consent to search the house (Tr. 18, 56, 68). However, no search was apparently conducted pursuant to her consent (Tr. 18).

[¶11]  Chief Judge Pat Lee of the Oglala Sioux Tribal Court signed a search warrant based upon the affidavit filed by C.I. Star Comes Out (Tr. 47-48). The search warrant was executed at approximately 1:35 p.m. and the items found in the inventory, Exhibit 11, were secured (Tr. 22, 76). The first item in the inventory is the seven marijuana butts which were found in a wastebasket by Officer Plenty Bulls (Tr. 76) (Hearing Exhibit 11). The second item, marijuana cigarette butts seized and residue, were found outside the house by Officer Plenty Bulls after they had been tossed there by defendant. Id. The third item, the brown Hardware Hank’s sack with the baggies of marijuana, was observed in the kitchen cabinet by C.I. Wilcox prior to the search warrant. Id. The other items contained in the inventory including the float, marijuana cigarette, sandwich baggies clamps, address book, pipe, key, safe, contents, and money, were found in the search pursuant to the search warrant. Id.

[¶12]  At the suppression hearing, three exhibits were received pursuant to the defense claim of violation of defendant’s Fifth and Sixth Amendment rights when he talked to the pretrial services officer and underwent an alcohol and drug evaluation (Tr. 79). On the pretrial services notice to defendant which he signed, defendant indicated that he did not wish to have a lawyer during his interview. See Docket #22 (Exhibit #4). The other two exhibits are authorizations by defendant to release information to the pretrial services officer and to release confidential information on drug or alcohol abuse programs. See Docket #22 (Exhibit ##5, 6).

STANDARD OF REVIEW

[¶13]  The Eighth Circuit Court of Appeals has set forth the following procedure for a district court to undertake when reviewing a magistrate judge’s findings and recommendations.

Once a proper objection is made to a magistrate judge’s finding, the district court must review that finding de novo. Taylor v. Farrier, 910 F2d 518, 521 (8th Cir. 1990); 28 USC § 636(b)(1). “In conducting [de novo] review, the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.” Branch v. Martin, 886 F2d 1043, 1046 (8th Cir. 1989).

Jones v. Pillow, 47 F3d 251, 252 (8th Cir. 1995). Upon review of the suppression hearing transcript and consistent with the following discussion, the Court accepts Magistrate Judge Young’s recommendation to deny defendant’s motion to suppress.

DISCUSSION

[¶14]  Defendant has filed a motion to suppress the following items: (1) all evidence seized as a result of a search of the defendant’s residence on or about August 7, 1996; (2) information obtained from defendant by the pretrial services officer in violation of his Fifth and Sixth Amendment rights; and (3) information contained in the alcohol and drug evaluation obtained at the request of defendant’s attorney and submitted to pretrial services, also in violation of his Fifth and Sixth Amendment rights.

[¶15]  A.  SUPPRESSION OF EVIDENCE

[¶16]  1.  INITIAL ENTRY

[¶17]  Defendant contends that Officer Plenty Bulls’ initial entry into defendant’s trailer was unjustified; thus, the plain view doctrine is inapplicable and there was no probable cause or basis for a search warrant. It is well understood that “‘[T]he Fourth Amendment has drawn a firm line at the entrance to the house.’” United States v. Vance, 53 F3d 220, 221-22 (8th Cir. 1995) (quoting Payton v. New York, 445 US 573, 590, 100 SCt 1371, 1382, 63 LEd2d 639 (1980)). Law enforcement may not cross that line absent a search warrant unless there is consent to the search, search incident to a lawful arrest, or exigent circumstances. United States v. Selberg, 630 F2d 1292, 1294 (8th Cir. 1980). Magistrate Judge Young determined that the initial entry into the trailer was justified under both the consent and exigent circumstance exceptions to the warrant requirement.

[¶18]  Law enforcement may search an area if they obtain a voluntary consent from someone possessing adequate authority over the area. United States v. Chaidez, 906 F2d 377, 380 (8th Cir. 1990). Furthermore, “a voluntary consent need not amount to a waiver, consent can be voluntary without being an ‘intentional relinquishment or abandonment of a known right or privilege.’” Id. (citations omitted). The proper test for voluntariness is “whether the totality of the circumstances demonstrates that the consent was voluntary.” Id. The prosecution has the burden of proving voluntariness by a preponderance of the evidence. Id. “‘The touchstone of the Fourth Amendment is reasonableness.’” United States v. Sanchez, 32 F3d 1330, 1335 (8th Cir. 1994) (quoting Florida v. Jimeno, 500 US 248, 250, 111 SCt 1801, 1803, 114 LEd2d 297 (1991)). Thus, if it was reasonable for Officer Plenty Bulls to have concluded that defendant voluntarily consented to his entry into the trailer, the search passes muster under the Fourth Amendment. Sanchez, 32 F3d at 1335. Under the totality of the circumstances, this Court finds that the officer reasonably concluded that defendant voluntarily consented to his entry.

[¶19]  Officer Plenty Bulls accompanied Caroline Bettelyoun to defendant’s trailer to keep the peace. There was no evidence presented at the suppression hearing indicating that at the time Officer Plenty Bulls entered the trailer, he had any prior knowledge or reason to believe that defendant was involved in illegal drug activities, as to draw an inference that the officer was there for any ulterior motive. The evidence only indicates that Sergeant Wilcox had knowledge concerning the tip from Larry Bettelyoun from the previous day (Tr. 64-65). When Caroline, accompanied with Officer Plenty Bulls, knocked on defendant’s door, defendant opened the door and Caroline advised him that “I came to get my grandchild because you are fighting.” Officer Plenty Bulls testified that the defendant said “okay” and turned into the residence so they followed. See United States v. Shabazz, 883 FSupp 422, 426 (D. Minn. 1995) (citing United States v. Turbyfill, 525 F2d 57, 59 (8th Cir. 1975)) (defendant’s opening of a door constituted an implied invitation to enter); United States v. Donlon, 909 F2d 650, 655 (1st Cir. 1990) (determining that defendant’s opening of a screen door equated to permission to enter).

[¶20]  Officer Plenty Bulls’ testimony further indicates that defendant was fully aware that the officer was with Caroline since he was standing next to her at the door (Tr. 12). Although Officer Plenty Bulls did not specifically state his purpose for being there, defendant knew that they were there to get the child from Caroline’s initial statement to defendant. While it is also true that the officer did not specifically request permission to come into the trailer, defendant left the door open, said “okay,” and there was no protest or objection to either of them entering the trailer. See generally Shabazz, 883 FSupp at 427; United States v. Armstrong, 16 F3d 289, 295 (8th Cir. 1994) (apprising suspect of his right to refuse to consent to search, although important factor in determining voluntariness of consent, is not required for consent to be voluntary). Furthermore, there is no evidence that threats, show of force, or restraints were employed by the officer. Therefore, under the totality of the circumstances, this Court finds that the officer reasonably concluded that defendant voluntarily consented to his entry.

[¶21]  The Court further finds that in addition to defendant’s voluntary consent to enter, the officer had a right to enter under the exigent circumstances exception to the warrant requirement. According to the Eighth Circuit Court of Appeals, exigent circumstances exist “when law enforcement officials have a ‘legitimate concern for the safety’ of themselves or others.” Vance, 53 F3d at 222 (citing United States v. Antwine, 873 F2d 1144, 1147 (8th Cir. 1989)). See generally Selberg, 630 F2d at 1295; Mincey v. Arizona, 437 US 385, 392, 98 SCt 2408, 2413, 57 LEd2d 290 (1978) (“Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.”). A reasonable warrantless entry is justified when there is a reasonable fear of harm. Vance, 53 F3d at 222 (citations omitted). The evidence of record supports the conclusion that Officer Plenty Bulls’ entry was justifiable on safety of others grounds.

[¶22]  On the morning of August 7, 1996, Officer Plenty Bulls was approached by Caroline Bettelyoun at the police department concerning a domestic dispute. She sought his assistance in the retrieval of her grandchild from defendant’s residence because her daughter Carrie Bettelyoun, defendant’s girlfriend, and the defendant were fighting. Officer Plenty Bulls agreed to accompany Caroline to defendant’s residence in an attempt to keep the peace. The officer had a legitimate concern for the safety of the grandchild, as well as for Carrie Bettelyoun who was reportedly fighting with defendant, and Caroline Bettelyoun who was attempting to retrieve her grandchild. It was not unreasonable for the officer to follow Caroline into defendant’s trailer in order to keep the peace.

[¶23]  2.  Plain View Doctrine

[¶24]  In United States v. Hughes, 940 F2d 1125 (8th Cir. 1991) the Eighth Circuit set forth the following three-prong test for a valid plain view seizure:

(1)  “the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,” (2) the object’s incriminating character is immediately apparent, and (3) the officer has “a lawful right of access to the object itself.” Horton v. California, 496 US 128, 136-37, 110 SCt 2301, 2308, 110 LEd2d 112 (1990).

Id. at 1126, 1127 (quoted in United States v. Hatten, 68 F3d 257, 260 (8th Cir. 1995)). The purported plain view seizure of the marijuana cigarette butts in the ashtray meets all three requirements.

[¶25]  First, as previously set forth, Officer Plenty Bulls’ initial entrance into the trailer was lawful. Second, the incriminating nature of the evidence was immediately apparent. Upon walking into the trailer, placing him in between the kitchen and the living room, the officer immediately detected a strong odor of pot or marijuana. He did a visual search for signs of a disturbance and observed what appeared to be broken dishes or cups on the kitchen floor. He further observed on the kitchen table in front of him an ashtray with some cigarette butts, which he suspected to be marijuana. He confirmed that it was marijuana by picking up one of the cigarette butts and smelling it.

[¶26]  Third, Officer Plenty Bulls had a lawful right of access to the ashtray on the kitchen table. At the suppression hearing, there was no evidence presented that the officer opened containers or otherwise engaged in an unlawful search to discover the marijuana cigarette butts in the ashtray. The kitchen table with the ashtray was immediately to his right when he first stepped into the trailer doorway, as there was no divider between the living room and the kitchen areas (Tr. 25-26). Thus, the ashtray was clearly in plain view. Therefore, this Court concludes that the plain view seizure of the marijuana cigarette butts was valid and obtained in accordance with defendant’s Fourth Amendment rights.

[¶27]  However, the evidence seized during the sweep search was not pursuant to a valid plain view seizure. At the time of the sweep search, defendant was already arrested, handcuffed, placed in the patrol car, and probably on the way to the jail. It was not unreasonable for the police officers to reenter the trailer to turn off the propane in the trailer and to determine the whereabouts of defendant’s girlfriend Carrie Bettelyoun in light of the previous report that she had been fighting with defendant. Thus, any evidence that the officers inadvertently came across while searching for the propane shutoff or for Carrie Bettelyoun would be justifiable under the plain view doctrine. See generally Coolidge v. New Hampshire, 403 US 443, 465-66, 91 SCt 2022, 2037-38 (1971). However, C.I. Wilcox clearly did not inadvertently discover the baggies of marijuana when he opened up a kitchen cabinet door, found a brown paper bag which he opened, and discovered a large amount of marijuana in two baggies. Hughes, 940 F2d at 1126-27. The discovery of the seven marijuana cigarette butts in the wastepaper basket fails under the same analysis. The purpose of the officers’ reentry was to search for the propane shutoff and Carrie Bettelyoun, not for additional evidence prior to the arrival of a search warrant.

[¶28]  3.  Search Warrant

[¶29]  C.I. Wilcox called C.I. Star Comes Out in order to obtain a search warrant. C.I. Wilcox testified that he advised C.I. Star Comes Out about Officer Plenty Bulls’ observations, including the marijuana cigarette butts in the ashtray, and also the fact that he believed there was a large amount of marijuana in the house, based upon what he was told and what he observed. Although C.I. Wilcox told C.I. Star Comes Out about the baggies of marijuana he discovered in the closed cabinet, the search warrant affidavit signed by C.I. Star Comes Out only references the partially smoked marijuana cigarette butts and not the large amount of marijuana found in the kitchen cabinet. See Docket #22 (Exhibit #1) (Affidavit for Search Warrant). Chief Judge Pat Lee of the Oglala Sioux Tribal Court signed a search warrant based upon the affidavit filed by C.I. Star Comes Out. After a review of the affidavit for the search warrant, the Court concludes that there was sufficient probable cause for Judge Pat Lee to issue the warrant.1 As noted by Magistrate Judge Young, the marijuana cigarette butts in the ashtray, plus Larry Bettelyoun’s tip the previous day, formed the basis for the officers’ determination that there was sufficient probable cause to request a search warrant.{fn1} Therefore, the items which were discovered in the search pursuant to the search warrant which include the float, marijuana cigarette, sandwich baggies clamps, address book, pipe, key, safe, contents, and money were validly seized by law enforcement.

[¶30]  4.  Inevitable Discovery Doctrine

[¶31]  The government contends that the evidence discovered during the sweep search, which includes the two baggies of marijuana in the kitchen cabinet and the marijuana in the wastebasket, falls under the doctrine of inevitable discovery. As stated by Judge Wollman, “[t]he inevitable discovery exception to the exclusionary rule articulated in Nix v. Williams, 467 US 431, 440-50, 104 SCt 2501, 2507-12, 81 LEd2d 377 (1984), allows the government to show by a preponderance of the evidence that the evidence seized would have been discovered in any event by lawful means. Id. at 444, 104 SCt at 2509.” United States v. Halls, 40 F3d 275, 276 (8th Cir. 1994). The Court finds that the government has shown by a preponderance of the evidence that the marijuana in the kitchen cupboard and the wastebasket would have been discovered in any event during the lawful search pursuant to the search warrant.

[¶32]  Officer Plenty Bulls’ initial entry was lawful based upon consent and exigent circumstances, and the marijuana cigarette butts in the ashtray were lawfully seized under the plain view doctrine. These marijuana cigarette butts formed the basis for probable cause for the search warrant. As set forth by Magistrate Judge Young, the fact that the officers were applying for a search warrant and did not mention the unlawful search of the kitchen cabinet in the affidavit for the search warrant set in motion a search warrant that would have inevitably discovered the marijuana in the cabinet and wastebasket. See Vance, 53 F3d at 222; Murray v. United States, 487 US 533, 541-44, 108 SCt 2529, 2535-36, 101 LEd2d 472 (1988). Accordingly, defendant’s motion to suppress evidence seized at defendant’s trailer is denied.

[¶33]  B.  PRETRIAL SERVICE INTERVIEW

[¶34]  Defendant contends that the initial interview conducted by the pretrial services officer violate the defendant’s Fifth Amendment rights against self-incrimination or his Sixth Amendment right to counsel. On the pretrial services notice informing him of his rights which defendant signed, defendant indicated that he did not wish to have a lawyer during his interview. See Docket #22 (Exhibit #4). Defendant suggests that Minnick v. Mississippi, 498 US 146, 111 SCt 486, 112 LEd2d 489 (1990), precludes the government from any additional contact with the defendant where the defendant has invoked his right to remain silent and right to counsel. However, explicitly exempt from Miranda’s coverage are those “questions to secure the ‘biographical data necessary to complete booking or pretrial services.’” Pennsylvania v. Muniz, 496 US 582, 601, 110 SCt 2638, 2650, 110 LEd2d 528 (1990) (citations omitted); United States v. Reyes, 908 F2d 281, 287-88 (8th Cir. 1990) (inquiry about suspect’s name and other routine questions not interrogation because information elicited only for purposes of obtaining pretrial release). Based on the foregoing, defendant’s request to suppress information obtained from defendant and contained in the pretrial services bail report is denied.

[¶35]  C.  PENNINGTON COUNTY ALCOHOL AND DRUG EVALUATION

[¶36]  Defendant requests that all parts of the Pennington County Sheriff’s Office City/County Alcohol and Drug Program Evaluation dated October 10, 1996, except those portions submitted as an exhibit at the pretrial detention hearing on October 16, 1996, be suppressed. Defendant contends that the evaluation was obtained at defense counsel’s request and was inappropriately released by the Pennington County Sheriff’s Office to the US Probation Office without the consent of defendant or defense counsel or without notice to them, in violation of defendant’s Fifth and Sixth Amendment rights.

[¶37]  On September 24, 1996, defendant signed both an “AUTHORIZATION TO RELEASE INFORMATION TO PRETRIAL SERVICES OFFICER” and a specific “AUTHORIZATION TO RELEASE CONFIDENTIAL INFORMATION (DRUG OR ALCOHOL ABUSE PROGRAMS) UNRESTRICTED COMMUNICATION.” See Docket #22 (Exhibit ##5, 6). The authorization to release information to the pretrial services officer included medical records, as well as psychological and psychiatric records. Moreover, the specific release authorized the release of confidential information on drug or alcohol abuse programs unrestricted communication. Accordingly, defendant’s request to suppress the Pennington County Drug and Alcohol Evaluation is denied.

CONCLUSION

[¶38]  Based upon the above discussion, defendant’s motion to suppress must be denied. Officer Plenty Bulls’ initial entry was lawful based upon consent and exigent circumstances. Having established that the officer had a right to be in the trailer, the plain view seizure of the marijuana cigarette butts in the ashtray on the kitchen table was appropriate under the plain view doctrine. This discovery formed the basis for law enforcement to obtain a search warrant based on C.I. Star Comes Out’s valid affidavit of probable cause which did not include reference to the marijuana discovered in the kitchen cabinet during the sweep search. The search pursuant to the search warrant would have resulted in the discovery of the two marijuana baggies in the kitchen cabinet and the marijuana in the wastebasket even if law enforcement officials had not already been alerted to their existence. In addition, information obtained from the initial pretrial service interview and that from the Pennington County Drug and Alcohol Evaluation was lawfully obtained pursuant to the pretrial services notice and the authorizations signed by defendant. Accordingly, it is hereby

[¶39]  ORDERED that the Magistrate Judge’s findings and recommendations are accepted to the extent they are consistent with the above discussion and defendant’s motion to suppress (Docket #16) is denied.



United States v. Van Brocklin, 1997 DSD 3

UNITED STATES OF AMERICA,

Plaintiff,

v.

DARRELL DEAN VAN BROCKLIN;

Travis Edward Atterberry; Lawrence Kermit Pyatt,

A/k/a Kermit Lawrence Pyatt; and Susan Kay Hastings,

Defendants.

[1997 DSD 3]

United States District Court

District of South Dakota - Western Division

CR. 94-50067

MEMORANDUM OPINION

APPROVING FINDINGS AND RECOMMENDATIONS

Filed Jan 15, 1997

RICHARD H. BATTEY, Chief Judge

PROCEDURAL BACKGROUND

[¶1]  Pursuant to 28 USC § 636(b)(1)(B), this case was referred to Magistrate Judge Marshall P. Young for the purpose of submitting to the Court proposed findings and recommendations for the disposition of this case. On October 17, 1996, Magistrate Judge Young filed findings and recommendations relating to the claims of Thomas and Frances Buczek, James and Holly Van Brocklin, Arlan and Jean DeJong, and Keith and Marcia Moon. (Docket #641).

[¶2]  Claimants claim an interest in the property pursuant to a Proposal and Acceptance agreement signed by the claimants and John Charlson on behalf of Custom Craft Home Center, Inc. (Custom Craft). Claimants also believe that they have a possessory interest in the property involved in this claim involving four townhouses located in Lawrence County. They also claim they have an equitable interest based upon the material and labor furnished.

[¶3]  The townhouses which are the subject of this action were constructed on land acquired by Custom Craft from Darrell Van Brocklin and Cheryl Van Brocklin. Custom Craft was a corporation of which Darrell Van Brocklin and Cheryl Van Brocklin owned fifty percent and John and Cather Charlson owned fifty percent. It is the interest of Darrell Van Brocklin that the government seeks in this forfeiture arising out of Darrell Van Brocklin’s multiple convictions. See Deposition of Cheryl Van Brocklin, Ex. 10, July 30, 1996, Docket #602.

[¶4]  Petitioners were given notice of their right to object to the findings and recommendations. According to the Eighth Circuit Court of Appeals, “[O]bjections must be timely and specific to trigger de novo review by the District Court of any portion of the magistrate’s report and recommendations.” Thompson v. Nix, 897 F2d 356, 357-58 (8th Cir. 1990). On October 28, 1996, objections were timely filed to the findings and recommendations regarding Custom Craft, Thomas and Frances Buczek, James and Holly Van Brocklin, Arlan and Jean DeJong, and Keith and Marcia Moon. (Docket #658). On November 6, 1996, the government filed its response to the claimants’ objections. (Docket #662). Therefore, a de novo review is triggered by this Court pursuant to 28 USC § 636(b)(1). In performing a de novo review of the record in this case, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” See id.

[¶5]  The issue is whether the Proposal and Acceptance creates a valid, binding contract between Custom Craft and the prospective homeowners. Applying South Dakota law, the magistrate judge stated that for a contract to be valid involving the sale of land it must satisfy the statute of frauds. To satisfy the statute of frauds the agreement must “contain all material terms and conditions of the oral agreement between the parties.” The magistrate judge noted that at the hearing the parties who testified stated that “the Proposal and Acceptance did not define the terms of the agreement between the prospective homeowners and Custom Craft but instead was prepared to assist Custom Craft in obtaining construction loan financing from Norwest Bank.” There was otherwise no building contract as such. Magistrate Judge Young stated that South Dakota does not recognize a statute of frauds exception for part performance. The magistrate judge concluded that “[b]ecause the Proposal and Acceptance was not a valid contract between the parties defining the terms and conditions of the construction of the townhouses and because there is no consideration and no meeting of the minds, it is my finding and recommendation that it does not create a valid lien against the premises.” It was also pointed out by Magistrate Judge Young that petitioners may be entitled to mitigation after the sale of the property if the “sweat equity” of the petitioners which arose after the filing of the lis pendens by the government increased the value of the premises.

FACTUAL BACKGROUND

[¶6]  Custom Craft obtained four construction mortgages so that it could build four townhouses for its employees, James Van Brocklin, Keith Moon, Thomas Buczek, and Arlan DeJong. Norwest Bank has a first mortgage on each townhouse. The claimants completed a form entitled “Proposal and Acceptance.” These documents were completed in order to provide documentation so that Custom Craft could obtain financing for the proposed townhouse project. (TR 18:5-19:5; 23:22-24:1). The Proposal and Acceptance of Thomas and Frances Buczek was dated November 5, 1993. The Proposal and Acceptances of James and Holly Van Brocklin and Arlan and Jean DeJong were dated November 4, 1993. Keith and Marcia Moon’s Proposal and Acceptance agreement is undated.

[¶7]  In June of 1993, ground was broken on the townhouse project. (TR 9:20). Two months later, on August 18, 1994, Darrel Van Brocklin was indicted. Claimants were employees of Custom Craft and the government seeks forfeiture of Van Brocklin’s interest in Custom Craft. The claimants testified they were aware of Darrell Van Brocklin’s indictment. Four days later, on August 22, 1996, the government filed a lis pendens on the four townhouses. The claimants admit they had actual notice of the lis pendens. Actual notice not withstanding they would have received constructive notice pursuant to South Dakota Codified Laws Ch. 5-10. Despite actual notice of the filing of the lis pendens all the claimants continued to expend money and time in the preparation of the townhouses. Prior to the time of the filing of the lis pendens, the Moons had expended $500, the DeJongs had expended $798.40, and the Buczeks had expended $713. Following the filing of the lis pendens, the Moons, DeJongs, and Buczeks expended $12,009.66, $14,256.12, and $17,485.57, respectively.

[¶8]  Keith Moon testified that the townhouse project came about when he worked for John Charlson. At the time of the project, Charlson was a shareholder in Custom Craft. (TR 7:21-25). Charlson had told Mr. Moon that if he wanted to build his own home that he could do it at Custom Craft’s cost. (TR 8:1-2) It was several years later before Mr. Moon could proceed with the townhouse project.

[¶9]  According to Mr. Moon, the project started with the foundation work. (TR 9:23-25). The Moons were not responsible for pouring the foundation. (TR 10:20). Mr. Moon testified that the townhouse owners built all the aerial walls for the foundation work and did all the coating on the structures. (TR 9:23-25). Mr. Moon testified that his arrangement with Custom Craft was that he and his wife were supposed to do the “painting, trim work, carpet and vinyl, putting in the cabinets, and the dirt work, and things similar to these.” (TR 10:7-12).

[¶10]  Mr. Moon stated that the Proposal and Acceptance Agreement was “written so the bank for appraisal purposes [would] know what’s included in the project and what is not.” (TR 18:5-19:5). Mr. Moon said that the materials were Custom Craft’s obligation and any labor above $65,000 was Mr. Moon’s obligation. (TR 19:9-20:5). Exhibit 4, the Performance and Acceptance Agreement signed by the Moons and Charlson, states that “we propose hereby to furnish material and labor.” Mr. Moon explained that the materials and labor furnished by Custom Craft was for the sum of $65,000 but admitted the agreement, Exhibit 4, did not specify what items or labor were considered to be above the $65,000. (20:2-5).

[¶11]  The Moons are claiming a total of $12,509.66. (Exhibit 1). According to Mr. Moon, $500 of that was expended before August 23, 1994, the date the government filed the lis pendens on the four townhouses involved in this claim. (TR 11:6-10; see also Exhibit 8). The $500 included $100 for the foundation coating, $200 for building design, and $100 for legal paperwork. (TR 11:12-20). Mr. Moon testified that the expenses listed in Exhibit 1 were not performed while he was an employee of Custom Craft. (TR 13:21-14:11). Moon also stated that the $500 in expenses was on behalf of the entire project and not just his townhouse individually. (TR 14:16-24).

[¶12]  The Proposal and Acceptance signed by Charlson and the Moons is not notarized and does not contain an accurate legal description. (TR 12:22-13:1). The Moons did not pay any down payment at the time the agreement was signed. (TR 13:2-5). According to the Proposal and Acceptance Agreement, “Payment [was] to be made as follows: during construction and final at closing.” (Exhibit 4). No payment was made by the Moons during construction. (TR 16:5-24). Mr. Moon testified that the closing of the townhouse never occurred. (TR 13:12-14). He stated that the Proposal and Acceptance was “written to give the bank a figure to develop a long-term financing loan ...” and was not written to define the parties’ responsibilities in the project. (TR 23:22-24:1). He stated that Exhibit 4 defined what would be included in the project upon completion. (TR 24:6-10). Mr. Moon testified that he considered the Proposal and Acceptance a binding document that he was going to buy this particular piece of property. (TR 25:1-3).

[¶13]  Mr. Moon understood that Darrell Van Brocklin was a shareholder in Custom Craft and president of the company. (TR 15:8-12; 25:23-26:9).

[¶14]  Arlan and Jean DeJong also built one of the four townhouses at issue. Mr. DeJong was also employed by Custom Craft at the time the Proposal and Acceptance was signed. (Exhibit 3). Both the DeJongs testified at the hearing. The DeJongs claim that they have expended $15,054.52 on the townhouse project. (TR 30:22-23; see also Exhibit 7). Prior to the filing of the lis pendens the DeJongs spent $798.40 and after the filing $14,256.12. (TR 30:17-21). The $798.40 was expended on the following: $653.40 in a loan commitment fee; $45 for a credit report; and $100 for labor. (TR 30:24-31-2).

[¶15]  Mrs. DeJong testified that she did not believe the construction of the town homes would be affected by the Van Brocklin indictment. (TR 32:1-4). She stated that the loan relating to the loan commitment fees was never closed because of the filing of the lis pendens. (TR 32:12-15). According to her, the DeJongs do not have any record ownership in the townhouse. (TR 32:16-18). However, they have claimed an interest in the property. (TR 33:2-7). The basis for the DeJongs’ claim, according to Mrs. DeJong, is reflected in Exhibit 3, the Proposal and Acceptance agreement signed by the DeJongs and Charlson. Mrs. DeJong stated that there was no contractual agreement which clearly indicated that it was her and her husband’s responsibility to complete the basement’s foundation and coating work. (TR 33:12-20).

[¶16]  The DeJongs moved into the townhouse on December 27, 1994. (TR 35:3-6). The DeJongs made $600 monthly payments to Custom Craft to cover the interest on the construction loan which Custom Craft had with Norwest because Custom Craft could no longer make those payments. (TR 35: 13-25). The first payment of $600 was made to Custom Craft on March 24, 1995. (Exhibit 7). The last payment was made on January 9, 1996, directly to Norwest.

[¶17]  Mr. DeJong testified as follows regarding the agreement between Custom Craft and the DeJongs:

Well, Custom Craft -- this is a standard contract that we wrote that listed what we were to receive, the building as it would be completed. And to keep costs down besides buying the materials at cost, it was agreed that we do -- this is basically a verbal agreement; we would do much of the construction work ourselves, finishing; I did a little bit of framing, but basically installed carpet, painting. A lot of this work and some of this work like the finishing of the coatings on the cement work, the subcontractors simply subtracted that much from what he charged Custom Craft, and so this was a verbal agreement just to keep the costs down.

(TR 38:9-20). The DeJongs did not make any down payment at the time they signed the Proposal and Acceptance. (TR 39:23-25). Mr. DeJong testified that he was aware that there was a lis pendens filed which affected the title to his property. (TR 40:22-25). Mr. DeJong stated that Exhibit 3, the Proposal and Acceptance, did not define the terms of his agreement with Custom Craft. (TR 41:4-7). He stated that his testimony would be similar to Mr. Moons’ that some items in the agreement were items that the employees were required to perform on their own time. (TR 41:8-10).

[¶18]  Frances Buczek testified that $713 was spent prior to the filing of the lis pendens. (TR 43:6-10). The $713 included the following: $413 for a loan application fee; $100 for building the basement window frames; $100 for coating the foundation; and $100 for construction cleanup. (TR 43:17-19). Mrs. Buczek testified that $600 monthly payments were first made to Custom Craft for interest on Custom Craft’s loan with Norwest. (TR 44:16-24). She stated that later they started making the payments to Norwest. (TR 44:16-24).

[¶19]  Counsel for the Buczeks also stipulated that the answers of Mrs. Buczek would be similar to those of the other claimants regarding the Proposal and Acceptance between the Buczeks and Custom Craft. (TR 46:7-12; see also Exhibit 2).

[¶20]  Neither James nor Holly Van Brocklin testified at the evidentiary hearing.

STANDARD OF REVIEW

[¶21]  The Eighth Circuit Court of Appeals has set forth the following procedure for a district court to undertake when reviewing a magistrate judge’s findings and recommendations.

Once a proper objection is made to a magistrate judge’s finding, the district court must review that finding de novo. Taylor v. Farrier, 910 F2d 518, 521 (8th Cir. 1990); 28 USC § 636(b)(1). “In conducting [de novo] review, the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.” Branch v. Martin, 886 F2d 1043, 1046 (8th Cir. 1989).

Jones v. Pillow, 47 F3d 251, 252 (8th Cir. 1995). The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 USC § 636(b)(1) (emphasis added). In assessing this matter, this Court has performed a de novo review which included consideration of the actual testimony of the hearing transcript and any exhibits presented at the evidentiary hearing.

DISCUSSION

[¶22]  Claimants have listed five objections to the findings and recommendations filed by Magistrate Judge Young. Claimants’ objections are summarized as follows: (1) to the magistrate judge’s finding “distinguishing post lis pendens filing work from prior work;” (2) to his finding that claimants did not rely upon the Proposal and Acceptance; (3) to his finding that “[t]he townhouse claimants paid nothing, either as a down payment or during the construction phase as provided for in the Proposal and Agreement;” (4) to his finding that the oral agreements between the claimants and Custom Craft differed from the Proposal and Acceptance as to the items which Custom Craft was to provide in the construction of the townhouses; and (5) to his finding that claimants’ sweat equity was “invested after financing had been refused, rendering closing impossible.”

[¶23]  “De novo review of those portions of the magistrate’s report and findings to which a party timely objects is mandated by statute, 28 USC § 636(b)(1) ... .” Taylor, 910 F2d at 520; see also Jones, 47 F3d at 252; Belk v. Purkett, 15 F3d 803, 815 (8th Cir. 1994); Thompson, 897 F2d at 357 (stating, “If written objections are filed, the District Court shall conduct the required de novo review as to those portions of the magistrate’s report and recommendation to which objection is made”) (citing 28 USC § 636(b); Branch, 886 F2d at 1045-46). Therefore, this Court as required will perform a de novo review of the specific objections of the claimants.

I. REVIEW OF LEGAL CONCLUSIONS

[¶24]  This Court must first review the legal conclusions reached by the magistrate judge. After reviewing the legal conclusions, this Court will consider the objections made by the claimants and if those findings have any effect on the legal conclusions reached by this Court.

[¶25]  This Court must apply the applicable law when determining the issues in this case. Federal law is used when interpreting the meaning of terms in a federal statute, United States v. BCCI Holdings (Luxembourg), 48 F3d 551, 554 (D.C. Cir. 1995) (citations omitted), but in forfeiture actions, ownership of property is determined by state law. United States v. Lester, 85 F3d 1409, 1412 (9th Cir. 1996).

A. DID THE PARTIES INTEND THE PROPOSAL AND ACCEPTANCE TO BE A CONTRACT FOR THE SALE OF LAND?

[¶26]  The issue is whether the Proposal and Acceptance was a valid contract for the sale of land. Even if the Proposal and Acceptance is a valid contract, meaning that the four elements of SDCL § 53-1-21. Elements essential to existence of a contract are:

(1)  Parties capable of contracting;

(2)  Their consent;

(3)  A lawful object; and

(4)  Sufficient cause or consideration.{fn1} are satisfied, a court should not “create a contract for the parties which they did not intend.” Amdahl v. Lowe, 471 NW2d 770 (SD 1991). According to South Dakota law, if a writing is ambiguous parol evidence may be introduced to establish the intention of that writing when it was entered into by the parties. Delzer Constr. Co. v. South Dakota State Board of Transp., 275 NW2d 352, 355 (SD 1979). The issue of whether a contract is ambiguous is a question of law to be resolved by a court. Id. The intention of the parties is a question of fact to be resolved by the jury, the finder of fact. Id. (party had moved for summary judgment and the court held that what the parties intend under the contract is a question of fact for the jury). Given the posture of this case, this Court is the finder of fact. Therefore, this Court must first consider if the Proposal and Acceptance is ambiguous. If this Court concludes that the Proposal and Acceptance is ambiguous, then this Court must look to the intent of the parties when they entered into it. The Court cannot make a contract where none exists. The parties claiming a contract have the burden and responsibility to complete the contract according to the law of contracts. They have not met the burden here.

[¶27]  According to South Dakota law, a contract may be “ambiguous when ‘it is reasonably capable of being understood in more than one sense.’” Enchanted World Doll Museum v. Buskohl, 398 NW2d 149 (SD 1986). This Court finds that the Proposal and Acceptance may reasonably be understood in more than one sense. The Proposal and Acceptance is ambiguous in that it does not on its face clarify that it was an agreement for the sale of the townhouses.

[¶28]  As to the intent behind the Proposal and Acceptance, the testimony revealed that the agreement was created to provide the bank with a statement of what would be included in the finished product so that Custom Craft could obtain financing for the project. Mr. DeJong testified that the Proposal and Acceptance was “a standard contract that we wrote that listed what we were to receive, the building as it would be completed.” The testimony of the claimants was that the Proposal and Acceptance did not clarify the responsibilities between the claimants and Custom Craft. (TR 33:12-20; TR 38:9-20). Mrs. DeJong testified that “there was no contractual agreement which clearly indicated that it was her and her husband’s responsibility to complete the basement’s foundation and coating work.” Only one claimant, Mr. Moon, testified that he thought the Proposal and Acceptance created a binding document for the sale of the townhouses. (TR 25:1-3). Mr. Moons’ testimony regarding the Proposal and Acceptance is conflicting. Mr. Moon also testified that the Proposal and Acceptance was “written so the bank for appraisal purposes [would] know what’s included in the project and what is not.” (TR 18:5-19:5). Mr. Moon explained that the materials and labor furnished by Custom Craft was for the sum of $65,000 but admitted the agreement, Exhibit 4, did not specify what items or labor were considered to be above the $65,000. (TR 20:2-5). According to Mr. Moon, the agreement creates a binding document for the sale of land but the document is not binding as to the duties for which the agreement states that Custom Craft would be responsible. Given the testimony of the other claimants and Mr. Moon, the Court concludes that the intent of the Proposal and Acceptance was to create a document which would show what would be included in the finished product so that the document could be presented to a bank in an effort to obtain financing, not an agreement for the sale of real estate.

B. CONSIDERATION

[¶29]  This Court will discuss the issue of consideration since both plaintiff and claimants presented the issue and the magistrate judge’s legal conclusion was based in part on the fact that the claimants did not give any consideration to Custom Craft.

[¶30]  For the Court to be required to amend the forfeiture order, the standard which must be established by the claimants is set forth in 21 USC § 853 (n)(6) as follows:

(6)  If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that—

(A)  the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or

(B)  the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section;

the court shall amend the order of forfeiture in accordance with its determination.

21 USC § 853(n)(6) (emphasis added).

[¶31]  The applicable standard in this case is 21 USC § 853(n)(6)(B). In interpreting the meaning of 21 USC § 853(n)(6)(B) the Court in United States v. Reckmeyer stated as follows:

The legislative history of § 853(n)(6)(B) convinces us that Congress intended to permit general creditors who give value to the forfeited estate in an arm’s-length transaction to recover. We hold that general creditors who have a legal interest in the forfeited estate and who gave valuable consideration to the estate without knowledge of the potential forfeitability of the defendant’s assets may recover the value so conveyed under § 853(n)(6)(B).

Reckmeyer, 836 F2d at 207 (4th Cir. 1987) (emphasis added).

[¶32]  The government urges and the magistrate judge concluded that the contract between the parties did not satisfy the element of consideration. The South Dakota Supreme Court has established that a promise to pay constitutes consideration. State v. Murphy, 48 NW2d 225, 226 (SD 1951); See also Heinert v. Home Fed. Sav. & Loan Ass’n, 444 NW2d 718, 721 (SD 1989) (mutual promises are sufficient to constitute consideration). However, given that the intent of the Proposal and Acceptance was not to create a contract for the sale of land but to provide information to the bank for financing purposes, in signing the agreement the parties involved were not making mutual promises to each other for the sale of the townhouses. The parties did not have a “meeting of the minds.” See SDCL 53-3-3 (“consent is not mutual unless the parties all agree upon the same thing in the same sense”).

[¶33]  Another element required to create a valid contract is consent. See SDCL § 53-1-2. In Amdahl, one issue for the Court was whether the seller consented to the sale of 880 acres of land. Amdahl, 471 NW2d at 774. According to the court, “A party’s intentional conduct which constitutes a manifestation of assent will bind a party even though the party’s conduct does not truly express his or her state of mind.” Id. In Amdahl, the seller of the property had signed a statement to sell 880 acres. Id. The seller later attempted to argue that she intended to consent to the sale of 400 acres not 880. Id. The court in Amdahl concluded that the seller had consented to the sale of 880 acres. Id. The court noted, “Where, as here, the agreement describes the subject matter and the description does not admit of two meanings, the fact that one of the parties thought it was something else does not affect the contract.” Id. In this case as discussed above, the Proposal and Acceptance is not clear as to the meaning to the document. Also, the combined testimony of the claimants leads this Court to the conclusion that the intent of the Proposal and Acceptance was to state what would be included in the townhouses when they were finished so that Custom Craft could obtain financing for the project. The intent of the Proposal and Acceptance was not to create an agreement for the sale of land; therefore, the document did not create a binding document to sell the townhouses to the claimants. Given that the Proposal and Acceptance was not intended a contract for the sale of land, there is no consideration or consent creating a valid contract.

C.  STATUTE OF FRAUDS

[¶34]  SDCL 53-8-2 states, in part, as follows:

Contracts required to be in writing--Statute of Frauds. The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing: ...

(3)  An agreement for sale of real estate or an interest therein, or lease of the same, for a period longer than one year. However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate in case of part performance thereof; . ...

SDCL § 58-8-2 (1990). The South Dakota Supreme Court has stated as follows regarding the requirements necessary to meet the statute of frauds, “The writing referred to in SDCL [§ ] 53-8-2 need not be in one document, the writings may consist of disjointed memoranda or protracted correspondence. As long as the substance of the contract can easily be inferred from the various writings, the requisites of the statute are met.” Wiggins v. Shewmake, 374 NW2d 111, 115 (SD 1985). This Court must consider whether the Proposal and Acceptance is a sufficient writing to satisfy the statute of frauds.2. If there is not a contract (oral or written) for the sale of land, then it is not necessary for the Court to determine if the statute of frauds was met. The majority of the testimony at the evidentiary hearing regarding the oral agreements between Custom Craft and the claimants dealt with the fact that the oral agreements established who was responsible for what in the completion of the townhouses. Claimants did not testify that there were oral agreements which created a contract for the sale of land. However, it is apparent to this Court that claimants must have thought that they had a contract for the sale of the real estate or the claimants would not have continued to spend their own money in an attempt to complete the project. Therefore, this Court will consider if the writing, in this case the Proposal and Acceptance, is sufficient to satisfy the statute of frauds.{fn2}

[¶35]  First, this Court must look to federal law to determine what is meant by the term “interest” as used in section 853(n)(6)(B). The Fourth Circuit stated as follows when construing what Congress meant by “interest in the property:”

We begin with the “assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 US 1, 9, 82 SCt 585, 591, 7 LEd2d 492 (1962). The Supreme Court has held that the term “interest” “comprehends all forms of real and personal property.” Russello v. United States, 464 US 16, 21, 104 SCt 296, 299, 78 LEd2d 17 (1983). The Court referred with approval to Black’s Law Dictionary’s broad construction of “interest” as “‘[t]he most general term that can be employed to denote a right, claim, title, or legal share in something.’” Id. at 21, 104 SCt at 299 (quoting Black’s Law Dictionary 729 (5th ed. 1979)). Black’s Law Dictionary defines a “legal interest” as an “interest in property or in claim cognizable at law in contrast to equitable interest.” Id. at 805. Thus the term “legal interest” encompasses all legally protected rights, claims, titles, or shares in real or personal property.

Reckmeyer, 836 F2d at 205. Using the definition of interest set forth in Reckmeyer, this Court must consider whether the claimants have a “right, claim, title, or legal share” in the townhouses.

[¶36]  Under South Dakota law, in order for claimants to have a “right, claim, title, or legal share” in the townhouses the statute of frauds must be satisfied. South Dakota law requires that a valid contract for the sale of real property must satisfy the statute of frauds. See SDCL § 53-8-2. If the statute of frauds is not satisfied, the writing is not admissible for the purpose of enforcing the contract. Brauger v. Snow, 405 NW2d 643, 646 (SD 1987). The South Dakota Supreme Court has set forth what is required under the statute of frauds for a contract involving the sale of real estate:

The statute of frauds requires that contracts for the sale of land must not only be in writing and signed by the party who is to be charged, but the writing must contain all the material terms and conditions of the oral agreement between the parties. Boekelheide v. Snyder, 71 SD 470, 26 NW2d 74 (1947); Carpenter v. Murphy, 40 SD 280, 167 NW 175 (1918); Phelan v. Neary, 22 SD 265, 117 NW 142 (1908). To satisfy the statute of frauds, a memorandum for the sale of land must describe the land, the price, and the contracting parties; it need not detain the form or delivery of the deed, the time and place of payment, or any other matters. 2 A. Corbin, Corbin on Contracts, Section 499 (1950) (Corbin on Contracts). See Boekelheide, 71 SD at 475, 26 NW2d at 77; Phelan, 22 SD at 268-9, 117 NW at 144. The statute of frauds requires only the writing evidence the substance of the contract. Wiggins v. Shewmake, 374 NW2d (111), at 114 (SD 1985); Aamot v. Eneboe, 352 NW2d 647 (SD 1984); Drake v. Sample, 279 NW2d 685 (SD 1979). There is no fatal ambiguity if the contract terms are sufficiently certain to make the acts required of each party clearly ascertainable. Wiggins, 374 NW2d at 115.

Amdahl v. Lowe, 471 NW2d 770, 774-75 (SD 1991). It is not required that “[t]he memorandum ... embody the exact terms of the contract, ‘it is sufficient that the substance of a contract for the purchase of real property is inferred from the writing[.]’” Wiggins, 374 NW2d at 114.

[¶37]  In Amdahl, the court concluded that the memorandum contained a general description of the land, that the purchase price was described, that the parties were identified, and the memorandum “set forth the essential terms in sufficient detail to determine the obligations of each party.” The Proposal and Acceptance between the claimants and Custom Craft does not satisfy the statute of frauds because the acts required of each party are not clearly ascertainable. See Amdahl, 471 NW2d at 475. The claimants testified that the Proposal and Acceptance was an agreement telling the bank what would be included in the project once it was completed and not an agreement clarifying the duties of the parties. The testimony of the claimants at the hearing revealed that the parties had established oral agreements which determined the responsibilities between the parties. The claimants have not pointed to any writings which clarify the duties of the parties. The substance of the agreement regarding the duties of the parties is part of an oral agreement and no writings exist which clarify those duties. These duties are material to the writing because they are essential in establishing what is included in the $65,000 price set forth in the proposal and acceptance which was to be paid by the claimants.

[¶38]  The claimants also urge that the part performance by them creates an exception to the statute of frauds. The Magistrate Judge, relying on Werner v. Norwest Bank South Dakota, concluded that South Dakota does not extend the part performance exception to the statute of frauds. Werner v. Norwest Bank South Dakota, 499 NW2d 138, 141 (SD 1993). The court in Werner stated, “[T]his Court has not recognized ... that we extend statute of frauds exceptions to include part performance.” Id. (citing 73 AmJuR2d Statute of Frauds, § 408, at 36 (1974)). The court concluded, “that the actions by Werner were performed either subsequent to the alleged contract or without justifiable reliance, we find no reason to consider adopting the [part performance] exception at this time.” Id. The Werner case dealt with an agreement to loan money and whether it should have been in writing; it did not deal with the sale of real estate. Taken in context, the court’s statement in Werner may have only dealt with an exception of part performance as to the provision of the statute of frauds requiring a writing to enforce a contract involving an agreement to loan money.

[¶39]  In this case, claimants have requested specific performance of the townhouses. However, SDCL § 53-8-2 permits a part performance exception to the statute of frauds when an individual is requesting specific performance. In Skjoldal v. Myren, the South Dakota Supreme Court stated, “To constitute part performance, the facts relied upon must be unequivocally and, ordinarily, exclusively referable to the contract.” Skjoldal, 191 NW2d 809, 813 (SD 1971) (citing 81 C.J.S. Specific Performance § 54, p. 538). See also Austin v. Cash, 906 P.2d 669, 673 (Mont. 1995). As stated previously, the contract involved in this case did not clearly state the responsibilities of the parties. Therefore, any part performance by the claimants was not clearly expressed in the Proposal and Acceptance who would be responsible for what given that the parties had oral agreements designating their duties.

D. SPECIFIC PERFORMANCE

[¶40]  Under South Dakota law for specific performance to be permitted “the contract with all its material terms and conditions must be proved by evidence so clear and satisfactory the mind of the trial court as to leave no doubt of the agreement.” Skjoldal, 191 NW2d at 811. South Dakota law requires that an obligation may not be specifically enforced if the terms of the agreement “are not sufficiently certain, to make the precise act which is to be done clearly ascertainable.” See 21-9-2(6).

[¶41]  In this case, the precise acts of the parties are not clearly ascertainable. The claimants testified that the agreement did not clarify who was responsible for the performance of specific duties in the construction of the townhouses. Mr. Moon testified that the agreement was not specific as to what labor was considered to be over the $65,000 contract price. Claimants testified that oral agreements with Custom Craft established who was responsible to perform specific duties in the construction of the townhouses. Even after hearing the oral testimony of claimants, the Court is not certain as to who was required to perform which jobs and the magistrate judge concluded the testimony of who was required to perform what jobs conflicts with the duties listed in the Proposal and Acceptance. Specific performance could not be awarded in this case because the material terms and conditions of the Proposal and Acceptance did not provide evidence so clear as to leave no doubt in the mind of this Court.

[¶42]  In Sabow v. Hall, 323 NW2d 861, 863 (SD 1982), the South Dakota Supreme Court stated,

It is clear from these facts and circumstances that the parties did not intend the offer and agreement to purchase to be a final or complete agreement on the terms and conditions of sale. The offer and agreement to purchase is therefore not a contract upon which specific performance could be based.

Id. Given the testimony of the claimants at the evidentiary hearing, it is also clear that in this case the parties did not intend the Proposal and Acceptance to be the final terms of their conditions for sale. Claimants testified that it was not meant to define the agreements of the parties but was meant as a vehicle for Custom Craft to obtain financing for the project. Since the agreement was not meant to be a final or complete agreement, the Court may not award specific performance to the claimants.

[¶43]  The third reason why specific performance may not be permitted in this case is established in SDCL § 21-9-4. That statute states as follows:

Mutuality of remedy or full performance by plaintiff required for specific performance. Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.

SDCL § 21-9-5 (1987). In this case, neither party was able to fulfill their obligation and neither party is entitled to specific performance. Custom Craft was unable to convey title because of the filing of the lis pendens and the claimants were unable to obtain financing so they could not pay “the rest” of the money due to Custom Craft at closing. “Mutuality of remedy” is not present; therefore, claimants are not entitled to specific performance.

[¶44]  The court in Reckmeyer required both a “legal interest” and “valuable consideration” for a claimant to recover under section 853(n)(6)(B). Without a valid contract at law for the sale of land, a claimant does not have a legal interest in the property. The parties do not have a contract for the sale of real estate which satisfies the statute of frauds; therefore, claimants do not have an interest in the property as required by section 853(n)(6)(B).

II. REVIEW FACTUAL FINDINGS

[¶45]  Claimants object to the magistrate judge’s distinguishing between work done prior to and following the filing of the lis pendens.3. The lis pendens was filed by the government on August 22, 1994.{fn3} Whether the claimants performed the work prior to or following the filing of the lis pendens is irrelevant given the legal conclusion reached. If claimants do not have a legal interest in the property, then pursuant to 21 USC § 853(n)(6) the Court is not required to amend the forfeiture order; therefore, when work was done by the claimant is irrelevant. When the work was done by the claimants may come into play when determining if the claimants have any equitable remedies at a mitigation hearing.

[¶46]  Claimants’ second objection is to the magistrate judge’s conclusion that the claimants did not rely on the Proposal and Acceptance. In reviewing the record, that Court finds only one express statement that could constitute reliance on the part of any of the claimants involved. Mr. Moon testified that he considered the Proposal and Acceptance a binding document that he was going to buy this particular piece of property. (TR 25:1-3). This Court believes that the record is clear. If the parties had not relied on the fact that they had an agreement with Custom Craft for the purchase of the townhouses, the parties would not have extended the money which they extended during the construction of the townhouses. However, the claimants have not alleged that the parties’ reliance should estop the government from arguing that the statute of frauds and that therefore a valid contract did not exist between the parties.4. In concluding that the claimants relied on the fact that they believed they had a binding contract for the sale of real estate with Custom Craft, this Court in no way is implying that this reliance was justified. It is not necessary for the Court to consider that issue.{fn4} The fact that reliance exists does not change the legal conclusion reached by this Court. Reliance may also come into play if the Court had concluded that South Dakota recognized part performance as an exception to the statute of frauds.

[¶47]  Claimants’ third objection is to the magistrate judge’s conclusion that “[t]he townhouse claimants paid nothing, either as a downpayment or during the construction phase as provided for in the Proposal and A[cceptance].” The claimants argue that serious money was expended during the construction phase. Placing claimants’ objection in context, the magistrate judge stated,

The claimants argue that because Norwest Bank at the time of the loan was an innocent bona fide purchaser, the townhouse claimants should be entitled to the same treatment. The difference here is that the bank gave consideration of $65,000 per townhouse to Custom Craft for their note and mortgage. The townhouse claimants paid nothing, either as a downpayment or during the construction phase as provided for in the Proposal and Acceptance.

The magistrate judge’s statement related to the fact that the claimants had not paid any consideration to Custom Craft. Given the Court’s conclusion above, the claimants’ objection does not change the legal conclusion reached by this Court.

[¶48]  Claimants’ fourth objection to the findings and recommendations of the magistrate judge is an objection based on a factual finding and not a legal conclusion. The magistrate judge stated,

The testimony by the prospective homeowners was that the Proposal and Acceptance did not define the terms of the agreement between the prospective homeowners and Custom Craft, but instead was prepared to assist Custom Craft in obtaining construction loan financing from Norwest Bank. The homeowners testified that they had oral agreements between themselves and Custom Craft whereby they were to perform sweat equity, including providing carpeting, painting, trim labor, vinyl floor coverings, installation of cabinets, and dirt work.

The Proposal and Acceptance indicates that Custom Craft was to provide these items.

Claimants argue that the only conflict between the two agreements is that the agreement said “carpet.” However, the Court’s reading of the transcript reflects that there are additional conflicts which exist. Mr. Moon stated that he and his wife were responsible for the “painting, trim work, carpet and vinyl, putting in the cabinets, and dirt work.” However, the Proposal and Acceptance stated also refers to painted objects and trim of the doors. In addition, the Proposal and Acceptance that Custom Craft “propose[d] to furnish material and labor” in accordance with the specifications listed in the proposal. However, Mr. Moon testified that the labor above the $65,000 cost to Custom Craft was to be provided by the townhouse owners. Mr. Moon testified that this was not contained within the Proposal and Acceptance agreement. This Court concludes that conflicts did exist as to the agreement. This Court finds that conflict exists at least as to which party was to perform the carpeting, tile work, and painting. However, the extent of the conflict does not change this Court’s legal conclusion that the Proposal and Acceptance was not a binding contract for the sale of land under South Dakota law.

[¶49]  Once again, claimants’ fifth objection also fails to have any binding effect on the legal conclusion reached by this Court. Claimants object to the following statement made by the magistrate: “Indeed, the sweat equity was invested after financing had been refused, rendering closing impossible.” Claimants argue that financing was accepted, not rejected. Claimants’ financing was originally approved; however, after the lis pendens was filed financing was rejected. (TR 32:12-15). At least some sweat equity could have been performed prior to financing being refused, since the claimants testified to some “sweat equity” which was performed prior to the filing of the lis pendens. However, the relevant date is the date on which the lis pendens was filed. In addition, this objection is immaterial as to the conclusions of law reached by this Court.

CONCLUSION

[¶50]  Based upon the record in this case, this Court adopts the magistrate judge’s findings. This Court holds that the Proposal and Acceptance agreement between the parties did not constitute a contract to sell real estate. A valid contract creating ownership rights in the townhouses was not created since the writings involved failed to satisfy the statute of frauds. As stated elsewhere in this opinion, the Court cannot make a contract between the parties. At best this Proposal and Acceptance was a financing document. The arrangement between Custom Craft and the claimants, employees of Custom Craft, was an oral agreement coupled with part performance. The claimants have failed to meet the elements set forth in 28 USC § 636(n)(6)(B) by a preponderance of the evidence. Claimants have failed to establish an interest in the townhouses as required by section 636(n)(6)(B). Claimants are not entitled to specific performance under South Dakota law.

[¶51]  This Court has not yet addressed whether claimants may be entitled to an equitable remedy based on the dollars extended by the claimants in “sweat equity.” This Court agrees with the magistrate judge that if the “sweat equity” by the claimants increased the value of the property subject to forfeiture, claimants may be eligible to be reimbursed at a mitigation hearing following the sale of the property.



Berry v. Assembly of God, 1997 DSD 4

JACOB O. BERRY,

Plaintiff,

v.

ASSEMBLY OF GOD,

Defendant.

[1997 DSD 4]

United States District Court

District of South Dakota - Western Division

CIV. 96-5061

MEMORANDUM OPINION GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Filed Jan 29, 1997.

RICHARD H. BATTEY, Chief Judge

PROCEDURAL HISTORY

[¶1]  On July 31, 1996, plaintiff Jacob Berry filed a complaint against defendant Assembly of God. On October 7, 1996, Berry’s first amended complaint was filed and on November 6, 1996, he moved this Court to permit him to file a second amended complaint. The Court granted Berry’s motion to amend on November 15, 1996. Berry’s second amended complaint alleges that a previous pastor of the Assembly of God, Morris Conklin, delivered him to Satan. As a result, Berry stated that he has suffered loss of property, destruction of livestock, and legal problems occurring on Satanic feast days. Berry informed the General Council of the Assembly of God of his “delivery to Satan.” No action was taken by the defendant after the General Council was informed. Berry alleges negligence and/or willful misconduct on the part of Assembly of God. Berry claims that as a result of defendant’s action he has suffered intense mental anguish, emotional distress, loss of sleep, problems on the job, and problems in social relationships. Berry has requested actual damages of $85,000 and punitive damages of $9,915,000.

[¶2]  On October 31, 1996, Assembly of God moved this Court to grant summary judgment in its favor because (1) this Court does not have subject matter jurisdiction over this cause of action, (2) Berry has failed to state a claim for infliction of emotional distress, (3) Berry’s complaint is barred by the statute of limitations, and (4) his complaint is barred by the doctrines of res judicata or estoppel. On November 12, 1996, Berry filed his response to Assembly of God’s motion for summary judgment and his statement of material facts. On November 15, 1996, this Court entered an order that any amendments in Berry’s second amended complaint would apply to the Assembly of God’s pending motion for summary judgment.

SUMMARY JUDGMENT STANDARD

[¶3]  Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can “show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law.” In determining whether summary judgment should issue, the facts and the inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.

[¶4]  In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 US 242, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). The Supreme Court has instructed that “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to ‘secure the just, speedy, and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 US 317, 327, 106 SCt 2548, 2555, 91 LEd2d 265 (1986). The nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts,” Matsushita, 106 SCt at 1356, and “[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id.

[¶5]  The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 US 451, 468, 112 SCt 2072, 2083, 119 LEd2d 265 (1992) where the Court said, “Matsushita demands only that the nonmoving party’s inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision.” The Court expounded on this notion by reiterating its conclusion in Anderson that, “[s]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Eastman Kodak, 504 US at 468 n.14, 112 SCt at 2083 n.14 (quoting Anderson, 477 US at 248, 106 SCt at 2510). To survive summary judgment there must be evidence that “reasonably tends to prove” plaintiff’s theory; defendants meet the burden under Fed. R. Civ. P. 56 when it is conclusively shown that the facts upon which the nonmoving party relied to support the allegations were not susceptible of the interpretation which was sought to give them; only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Id. (citations omitted).

[¶6]  Finally, should there remain any doubt as to whether the courts continue to harbor any antagonistic feeling toward resolution of summary judgment motions, Chief Judge Arnold in City of Mt. Pleasant, Iowa v. Associated Elec. Co-op, Inc., 838 F2d 268 (8th Cir. 1988) laid such thoughts to rest. He stated that, “a trilogy of recent Supreme Court opinions demonstrates that we should be somewhat more hospitable to summary judgment than in the past. The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts’ trial time for those cases that really do raise genuine issues of material fact.” Id. at 273. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from the trilogy of Matsushita, Celotex, and Anderson). Under this trilogy, it is incumbent upon the nonmoving party, based upon the showing set forth by the moving party, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F2d 976, 979 (8th Cir. 1991).

FACTS

[¶7]  According to the Eighth Circuit:

To be material, the disputed facts must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 US 242, 106 SCt 2505, 91 LEd2d 202 (1986)... . The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law. Howland v. Kilquist, 833 F2d 639, 642 (7th Cir. 1987).

Holloway v. Pigman, 884 F2d 365 (8th Cir. 1989).

[¶8]  Even if you accept all the facts of the plaintiff as true, defendant believes that it is entitled to summary judgment as a matter of law. Viewing the facts most favorably toward the nonmoving party, the Court finds the facts as follows:

1.  In 1983, Berry lived in Newell, South Dakota and was a member of the Newell Assembly of God whose pastor was Morris Conklin.

2.  Berry had personal disputes with Conklin prior to 1983 which involved the rubbing of Berry’s hand when Conklin shook Berry’s hand after church services; the manner in which Berry’s foot was handled at Berry’s foot washing ceremony; and Conklin’s giving of canned goods to Berry as a gift.

3.  Berry was emotionally abused by Conklin’s criticizing him for wearing dirty jeans to church; Conklin accusing Berry of not paying a tithe; Conklin’s statement that Berry was not supported after a house fire; Conklin’s accusation that Berry did not take communion in the church; and Conklin’s statement that he did not care where Berry worked while Berry was having a difficulty finding a steady job.

4.  Under Conklin’s direction, families were ruined and the church membership ceased. Berry openly criticized Conklin. Berry called other members of the church inquiring about the problems he perceived to be taking place within the church. On May 1, 1983, Berry “cornered” Conklin with criticism of other members of the church. Later that same day, Conklin asked him to attend a meeting at the church.

5.  At this meeting on May 1, 1983, Berry was read the verse from I Corinthians 5:5. It was not until March of 1996 that Berry began to realize that the reading of this scripture played a vital role in causing Berry’s problems. Berry believes that the ex-communication ceremony was unjustified and that he was delivered to Satan by the reading of that scripture.

6.  After Berry was delivered to Satan, he subconsciously began to fear that bad things would happen to him, and that as a result of his delivery to Satan, bad things did happen to him.

7.  Berry stated that May 1 is “Satanic Feast Day” and that when the adverse events occur on that day Satan is “leaving his footprint ... .”

8.  Berry stated that the following events have happened on one of the four “Satanic Feast Days,” February 2, May 1, August 2, and November 1, and that the Assembly of God is responsible for them:

a.  Berry experienced fires which were connected to the satanic.

b.  Berry had to buy medicine for a cow that suffered from an infection.

c.  Berry had a land payment which was due on May 1, 1984.

d.  Berry had to enter prison on April 30, 1986, due to satanic deception.

e.  Berry harassed and assaulted a co-employee. As a result, Berry was subsequently imprisoned and a writ of habeas corpus was denied on April 30, 1994.

f.  Berry received a response from the Federal Court of Appeals on February 2, 1994.

g.  Berry received a letter from an attorney on April 30, 1994, which stated that the attorney would not represent Berry in a malpractice action against the attorney who “first mishandled Plaintiff’s assault case.”

h.  Defendant’s lawyer stated that the parties should get together and discuss issues in a letter dated February 1,1996.

i.  Berry receives defendant’s motion for summary judgment on October 31, 1996.

9.  In 1984, Conklin left Newell. Berry had no contact with Conklin after June 7, 1983, except when he called Conklin in March of 1996. It was during this conversation that Conklin admitted delivering him to Satan.

10.  According to Berry, the first time Berry complained about the actions of the Assembly of God was in 1984. At that time, Berry contacted the South Dakota District Council. The Assembly of God alleges that the first time he contacted anyone was in November of 1989. This dispute is not material given the Court’s decision in this case. Berry next complained in his letter to David Nelson dated November 15, 1989. The parties disagree as to whether the letter contains an allegation of “homosexual harassment.” The Court concludes that such a dispute is also not material to the issues of this case.

11.   Defendant alleges that Berry wrote to the General Council of the church in August of 1993 and that for several years prior to that Berry had no communication with the church or any of its members. Berry denies confronting the General Council of the Assembly of God until March of 1996. He stated that he could not have confronted the council as to the damages he suffered until that time because it was not until March of that year that he realized his delivery to Satan had caused his problems. The Court concludes that this factual dispute is not material given the conclusion reached by this Court.

12.  Berry previously filed suit against Conklin in this Court. Berry voluntarily dismissed the lawsuit out of fear.

13.  Defendant states that “Berry contends that he was a victim of spiritual forces, and therefore, the Church should have engaged in ‘spiritual warfare’ on his behalf.” Berry denies that “spiritual warfare” is part of the complaint. Given the decision of the Court in this case, this factual dispute is not material to the case.

14.  Berry has not received any medical care since 1993. Berry has not seen a psychiatrist or psychologist for any emotional abuse which he has suffered.

DISCUSSION

[¶9]  This Court will first consider if it has subject matter jurisdiction to hear this case. Assembly of God urges this Court that it is entitled to summary judgment because this Court does not have subject matter jurisdiction over this cause of action. Berry has alleged subject matter jurisdiction based upon diversity of jurisdiction and arising under jurisdiction. See 28 USC §§ 1331, 1332.

[¶10]  The First Amendment to the United States Constitution protects the free exercise of religious beliefs. US Const. amend. I. The Fourteenth Amendment applies the First Amendment to the states. See City of Rapid City v. Kahler, 334 NW2d 510, 512 (SD 1983). Given the religious affiliation of the Assembly of God, this Court is confronted with the issue of whether the First Amendment bars the Court’s subject matter jurisdiction. Bible Way Church of Our Lord Jesus Christ of Apostolic Faith of Washington, D.C. v. Beards, 680 A.2d 419, 427 (D.C. Ct. App. 1996). The First Amendment prohibits this Court from hearing cases which will entangle it in “matters of ecclesiastical cognizance.” See Serbian Eastern Orthodox Diocese for United States of America and Canada v. Milivojevich, 426 US 696, 708, 96 SCt 2372, 2380, 49 LEd2d 151 (1976); Watson v. Jones, 80 US 679, 727, 20 LEd2d 666 (1871) (court should accept decisions of church involving “questions of discipline, or of faith, or ecclesiastical rule, custom, or law”); Beards, 680 A.2d 419; Burgess v. Rock Creek Baptist Church, 734 FSupp 30 (D.D.C. 1990).

[¶11]  Long ago the United States Supreme Court held that courts should not “revise or question ordinary acts of the church,” including the excommunication from membership. Bouldin v. Alexander, 82 US 131, 21 LEd 69 (1872). A well-established rule of law is that “[c]ivil courts are bound to accept the decision of the highest judicatories of a religious organization of hierarchical polity or matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 US 696, 96 SCt 2372, 2382, 49 LEd2d 151 (1976). This does not mean that the church is above the law, but a court must take care to avoid a controversy which involves “‘religious doctrine and practice.’” Beard, 680 A.2d at 427 (quoting Burgess, 734 FSupp at 31).

[¶12]  The Court will first consider cases which have addressed the issue of whether the matter involved was one of “ecclesiastical cognizance.”

[¶13]  In Lewis v. Holy Spirit Ass’n for Unification, 589 FSupp 10 (D.C. Mass. 1983), plaintiff, a member of the church, alleged several claims against the church sounding in contract and tort, including torts of brainwashing and indoctrination. In considering the torts of brainwashing and indoctrination the court noted that “initiation procedures and conditions of membership in a religious organization are generally not subject to judicial review.” Id. at 12 (citing Turner v. Unification Church, 473 FSupp 367, 371 (D.C.R.I. 1978); United States v. Ballard, 322 US 78, 64 SCt 882, 88 LEd2d 1148 (1944); United States v. Seeger, 380 US 163, 85 SCt 850, 13 LEd2d 733 (1965)). The court stated that plaintiff may have intended to plead the tort of intentional infliction of emotional distress. Id. To prove the tort of intentional infliction of emotional distress, two elements that plaintiff must prove are that “defendant intended to inflict emotional distress or knew or should have known that distress would result to the plaintiff from its conduct [and] that the conduct was extreme and outrageous.” Id. The court concluded that plaintiff’s complaint failed to state a claim upon which relief could be granted for such a tort. Id.

[¶14]  In Beards, plaintiff accused defendant church of negligent failure to account for church funds. Id. at 423. The court concluded that it would only be permitted to address this issue if well-established accounting principles applied to the church. Id. at 427-28. The court determined that such well-established principles could only apply to the church if the principles were so universal that every church applied them and the church took it for granted that such principles should be adopted or the church had adopted such principles. Id. at 428. The court noted,

Accounting is an area riddled with major subjective decisions. When the entity in question is a religious society, those subjective decisions raise questions of internal church governance which are often themselves based on the application of church doctrine. For example: What should be the collection, tithing, or offering practices of the church? ... Who in the church establishes the spending priorities? Should the pastor have one or more discretionary funds? ... In each case, who makes the decision?

Id. at 429. The court found that the complaint did not allege that universally applicable rules of accounting applied to the church nor had the church alleged that it had adopted such principles. Id. at 428, 430. Therefore, the Court was unable to exercise jurisdiction over the matter given that it involved “ecclesiastical judgment.” Id. at 428, 430. The Free Exercise clause of the First Amendment prevented the court from hearing the claim. The court of appeals concluded that the trial court was in error in refusing to dismiss the negligence claim. Id. at 430.

[¶15]  In Burgess v. Rock Creek Baptist Church, the plaintiff alleged that the church terminated her membership against her will. Plaintiff sued for injunctive and declaratory relief that she was a member in good standing of the church and for intentional infliction of emotional distress which allegedly resulted from the church’s terminating her membership. Burgess, 734 FSupp at 31. The court in Burgess determined that in the Rock Creek Baptist Church’s determining who is and who is not a member is a matter of ecclesiastical cognizance. Id at 33. “‘The mere expulsion from a religious society, with the exclusion from a religious community, is not a harm for which courts can grant a remedy.’” Id. (quoting Grunwald v. Bornfreund, 696 FSupp 838, 840-41 (E.D.N.Y. 1988)). In concluding that the court was prohibited from adjudicating this dispute as to the termination of plaintiff’s membership, the court stated that it would be required to delve into matters of church policy, administration, and governance. Id. at 34. The court stated that it would be unable to determine matters of termination of church membership even if the termination had been “a simple mistake or arbitrary.” Id. The court held that determining such matters would violate the Free Exercise Clause of the First Amendment. Id.

[¶16]  The court in Burgess held that the “cloak” of ecclesiastical protection extended to plaintiff’s theory of intentional infliction of emotional distress. Id. The court concluded that the church’s “subsequent actions are so inextricably linked that— regardless of the legal theories upon which the plaintiff relies— for the purposes of the First Amendment analysis, the substance of her lawsuit infringes upon matters of ecclesiastical cognizance.” Id. Once a court is required to delve into “matters of ecclesiastical cognizance” any matters “inextricably linked” will also be barred as to subject matter jurisdiction based upon the First Amendment. See id. The Burgess court refused to hear the plaintiff’s claim of intentional infliction of emotional distress because it was “inextricably linked” to plaintiff’s action relating to her termination of membership by the church. Id.

[¶17]  In Paul v. Watchtower Bible and Tract Soc. of New York, Inc., 819 F2d 875 (9th Cir. 1987), the court held that plaintiff was barred by the First Amendment from bringing her claims alleging common law torts of defamation, invasion of privacy, fraud, and outrageous conduct. Plaintiff alleged that the intentional conduct on the part of the church resulted in emotional distress, alienation of affections, and harm to her reputation. The court held that “imposition of tort damages on the Jehovah’s Witnesses for engaging in the religious practice of shunning would constitute a direct burden on religion.” Id. at 880. The court stated:

Permitting prosecution of a cause of action in tort, while not criminalizing the conduct at issue, would make shunning an “unlawful act.” (“[T]he very essence of a tort is that it is an unlawful act.”). Imposing tort liability for shunning on the Church or its members would in the long run have the same effect as prohibiting the practice and would compel the Church to abandon part of its religious teachings. Were we to permit recovery, “‘the pressure ... to forego that practice [would be] unmistakable.’” The Church and its members would risk substantial damages every time a former Church member was shunned. In sum, a state tort law prohibition against shunning would directly restrict the free exercise of the Jehovah’s Witnesses’ religious faith.

Id. at 881 (citations omitted). According to the Ninth Circuit Court of Appeals, “A religious organization has a defense of constitutional privilege to claims that it has caused intangible harms— in most, if not all, circumstances.” Id. at 883. The court in Paul held that permitting the plaintiff to recover in tort for the intangible harms alleged would restrict the churches free exercise of religion; therefore, the causes of action alleged by the plaintiff were barred. Id.

[¶18]  Berry has failed to cite to any persuasive authority convincing this Court that this suit should not be barred by the First Amendment. Berry relies on Nally v. Grace Community Church of the Valley, 204 Cal. Rptr. 303 (Cal. Ct. App. 1984) (unpublished). The court in that case held that the clergyman or church was not barred from the “liability for intentional infliction of emotional distress caused by the nature or content of counseling simply because the counseling may have a spiritual aspect.” Id. at 307. The court went on to state, “The free exercise clause of the First Amendment to the United States Constitution ‘embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’” Id. (citations omitted). The court held that counseling fell within the latter category. However, a church’s policy on excommunication of a member would fall into the former category of “freedom to believe” which is an absolute bar under the First Amendment. The Court concludes that Berry’s reliance on Nally is misplaced.

[¶19]  Plaintiff also encourages this Court to follow the conclusions reached by the court in Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975). However, this case involves state action and its application to the First Amendment. A religious practice may be curtailed where “it involves a clear and present danger to the interests of society.” In this case, the religious practice at issue involved snake handling and because the state has the right to protect a person from injuring himself the court enjoined any party from “handling, displaying, or exhibiting dangerous and poisonous snakes.” Berry’s reliance on Swann is also misplaced based on the different application of the First Amendment in that case.

[¶20]  This Court holds that for it to consider the damages alleged by Berry in this case it would be required to delve into “matters of ecclesiastical cognizance.” Defendant sets forth several issues which would have to be addressed by this Court in order for the Court to resolve the matter before it. The defendant states that the Court would be required to resolve the following: “(1) whether there exists a church doctrine of ‘delivery to Satan;’ (2) whether such a doctrine was applied to Plaintiff in 1983; (3) whether this practice was ‘unjustified’ under the facts or church procedure; (4) whether the practice caused various injuries as alleged; and (5) whether Defendant could or should have acted to intervene to ‘reverse the curse’” When considering at least five of the issues which would need to be resolved by this Court, it is clear that the resolution would involve “matters of ecclesiastical cognizance.” Berry has alleged that all his problems are a result of his “delivery to Satan” which he now realizes occurred when Conklin read to him from 1 Corinthians 5:5 at the church’s excommunication ceremony. It has been a long-standing policy of the courts not to involve themselves in disputes involving the excommunication of members. The First Amendment bars involvement in such suits. To resolve the issues in this suit the Court would be required to consider whether the church’s policy of excommunication is unjust. Consideration of such an issue would require resolution of matters of ecclesiastical cognizance and resolution of such matters is barred by the First Amendment.

[¶21]  Due to his “delivery to Satan,” Berry alleges he has suffered loss of property, destruction of livestock, and legal problems occurring on satanic feast days. Berry also alleges negligence and/or willful misconduct on the part of Assembly of God. Berry claims that as a result of defendant’s action he has suffered intense mental anguish, emotional distress, loss of sleep, problems on the job, and problems in social relationships Following the persuasive reasoning set forth by the court in Burgess, this Court concludes that all claims alleged by the plaintiff are “inextricably linked” to plaintiff’s excommunication by the church and are therefore barred by the First Amendment. The Court would be unable to make a judgment as to damages for this plaintiff without making some judgment as to the actions by the church when it excommunicated the plaintiff. Analyzing the church’s policy on excommunication would invade matters of ecclesiastical cognizance; therefore, all claims of the plaintiff are barred based upon free exercise clause of the First Amendment.

[¶22]  Using the analysis set forth by the court in Paul, permitting this Court to hear Berry’s claim of negligence and possibly the tort of intentional infliction of emotional distress1 Given this Court’s conclusion, it does not need to reach an opinion as to whether or not Berry has stated a claim of intentional infliction of emotional distress.

{fn1} (considering the intangible damages which Berry has alleged) would place a direct burden on the Assembly of God’s practice of excommunication. See Paul, 819 F2d at 881. The church would be discouraged from performing the practice because of the potential tort claims which plaintiffs would be allowed to bring. This type of discouragement of religious practices would be a direct burden on the church’s right to free exercise of religion.

[¶23]  “‘The constitutional guarantee of the free exercise of religion requires that society tolerate the type of harms suffered by [the plaintiff] as a price well worth paying to safeguard the right of religious difference that all citizens enjoy.’” Burgess, 734 FSupp at 35 (citing Bible & Tract Soc’y, 819 F2d at 884). Regardless of the jurisdictional basis alleged by Berry, the constitutional bar to Berry’s suit prevents the Court from having subject matter jurisdiction over this matter. Even considering the facts most favorable to the non-moving party, defendant Assembly of God is entitled to judgment as a matter of law.2. Based upon the Court’s conclusion, it is not necessary for the Court to address the additional reasons set forth by the defendant for summary judgment.{fn2}



McLain v. Chater, 1997 DSD 5

MITCHELL MCLAIN,

Plaintiff,

v.

SHIRLEY SEARS CHATER,