STATE of North Carolina v. Matthew EDWARDS, Jr.
Lacy H. Thornburg, Atty. Gen. by Alfred N. Salley, Asst. Atty. Gen., Asheville, for the State.
Loflin & Loflin by Thomas F. Loflin, III, Durham, for defendant-appellant.
We granted defendant's petition for discretionary review limited to the following two questions: (1) whether the trial court erred in permitting a police witness to read into evidence the search warrant and supporting affidavit in this case; and (2) whether the trial court erred in requiring defendant to proceed to trial with insufficient notice when his case was not on the trial calendar. After considering the first question, we find reversible error and remand for a new trial. We therefore find it unnecessary to reach the second question.
*509 Pursuant to a search warrant, Durham police officers found over 200 grams of a white powder containing cocaine in the right-hand duplex located at 819 Arnette Avenue, Durham, North Carolina, on 30 July 1982. Eight people, including defendant, were in the house at the time. The name on the utilities bill was not defendant's, but a cable television receipt bore the name "Matthew Edwards." The state presented no evidence that defendant leased or owned the premises. Investigating officers found various materials in the kitchen often used in the cocaine trade, including scales, corners of small plastic bags, twist ties, scissors, and playing cards. One of the empty plastic bags lay open in the sink in soapy water. Officers testified that these items and techniques are virtually exclusive to the local cocaine trade. When arrested, defendant was wearing a bathrobe. Some white powder observed on the front of the robe was later determined to be cocaine, and $550 was found in the robe's pocket.
The state also offered in evidence the contents of the affidavit used to obtain the search warrant. This evidence tended to show that a confidential source considered reliable by B.H. Millan, a Durham police officer, contacted Officer E.J. Kolbinsky, an investigator in the Department's Organized Crime Division, during the week of 25 July 1982. The confidential source informed Officer Kolbinsky that defendant Matthew Edwards, Jr., also known as "Steelbottom," had a large quantity of cocaine in his residence, identified as the right side of a duplex at 819 Arnette Avenue, Durham. Shortly thereafter, while under surveillance by Kolbinsky and another police officer, the confidential source entered the right-hand duplex at 819 Arnette Avenue and returned, stating that he or she had purchased cocaine from a man known to him or her as Matthew Edwards, Jr., and that Edwards had a "large quantity" of cocaine on the kitchen table. The state introduced the affidavit into evidence by permitting the affiant, Officer Kolbinsky, to read it verbatim to the jury, over defendant's objection.
We conclude the trial court committed reversible error in permitting the witness to read the entire search warrant affidavit to the jury.
State v. Spillars, 280 N.C. 341, 352, 185 S.E.2d 881, 888 (1972). In Spillars the affidavit in question contained hearsay statements indicating defendant's complicity in another crime without showing that he had been convicted of that crime. We said: "[T]he effect of admitting the search warrant and affidavit into evidence was to allow the State to strengthen its case by the use of obviously incompetent evidence." 280 N.C. at 353, 185 S.E.2d at 889. We concluded in Spillars that the error was reversible.
Spillars was based on our holding in State v. Oakes, 249 N.C. 282, 106 S.E.2d 206 (1958), in which we found that the trial court reversibly erred in admitting a peace warrant and the supporting affidavit the victim, defendant's wife, made two days before defendant shot and killed her. We held that the warrant and affidavit constituted improper hearsay statements and precluded defendant from confronting or cross-examining the witness. Despite the trial court's jury instruction limiting the purpose of the peace warrant's introduction, the error was held to be reversible. State v. Oakes, 249 N.C. at 285, 106 S.E.2d at 208.
In later cases we have followed consistently the decision in Spillars. We held in State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975), that the trial court committed reversible error by admitting into evidence without restriction the complaint and warrant *510 for defendant's arrest. The arrest warrant and complaint strengthened the state's case with incompetent hearsay evidence and denied defendant his right to confront witnesses against him.
Thus in Spillars, Oakes and Jackson, this Court held the error in admitting similar affidavits at trial was reversible. These cases treated the error as one of constitutional dimension because the effect of it was to deprive defendant of his constitutional right to cross-examine and confront witnesses against him. Such errors are reversible unless "harmless beyond a reasonable doubt." N.C.Gen.Stat. § 15A-1443(b). The burden is upon the state to demonstrate that the error was harmless under the statutory standard. Id.
We cannot say here that the state has demonstrated beyond a reasonable doubt that the error was harmless. Although the case against defendant was relatively strong, the evidence that defendant knowingly, constructively possessed a quantity of cocaine necessary for a trafficking conviction was entirely circumstantial; and there were seven other people present at the time of defendant's arrest. The hearsay evidence contained in the affidavit was also quite devastating to defendant. It permitted the state to show through the hearsay statements of some unnamed informant that defendant on a previous occasion had a large quantity of cocaine in his residence and sold some of it to the informant.
The state argues the affidavit was offered properly to show the background of the raid which resulted in defendant's arrest and the trial court admitted the evidence solely for this purpose and not for the truth of the matters stated therein.
Because of the extremely damaging nature of the admitted hearsay statements, we reject this contention. In Oakes a limiting instruction to the jury failed to cure the error in admitting a similarly damaging affidavit against defendant because "... the whole was before the jury, and it is feared that the impression was not so easily removed from the minds of the jurors." State v. Oakes, 249 N.C. at 284-85, 106 S.E.2d at 208.
We conclude defendant must be given a new trial. We therefore reverse the decision of the Court of Appeals and remand the case to that court for remand to the Superior Court of Durham County for further proceedings consistent with this opinion.
BILLINGS, J., took no part in the consideration or decision of this case.


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Eusocial insect colonies form superorganisms, in which nestmates cooperate and use social immunity to combat parasites. However, social immunity may fail in case of emerging diseases. This is the case for the ectoparasitic mite Varroa destructor, which switched hosts from the Eastern honeybee, Apis cerana, to the Western honey bee, Apis mellifera, and currently is the greatest threat to A. mellifera apiculture globally. Here, we show that immature workers of the mite’s original host, A. cerana, are more susceptible to V. destructor infestations than those of its new host, thereby enabling more efficient social immunity and contributing to colony survival. This counterintuitive result shows that susceptible individuals can foster superorganism survival, offering empirical support to theoretical arguments about the adaptive value of worker suicide in social insects. Altruistic suicide of immature bees constitutes a social analogue of apoptosis, as it prevents the spread of infections by sacrificing parts of the whole organism, and unveils a novel form of transgenerational social immunity in honey bees. Taking into account the key role of susceptible immature bees in social immunity will improve breeding efforts to mitigate the unsustainably high colony losses of Western honey bees due to V. destructor infestations worldwide.
Honey bee, Apis spp., colonies can be regarded as superorganisms, in which cooperating individuals in overlapping generations support functions comparable to those of cells in a multicellular organism1. Such cooperation can foster the survival of parasite-infested colonies via social immunity2,3, e.g. social analogues of encapsulation4 or fever5. However, social immunity might be inefficient if parasites shift host species such as in the case of the ectoparasitic mite Varroa destructor, which originally infested the Eastern honey bee A. cerana, and now infests the Western honey bee, A. mellifera, at a global scale6. There is general consensus that this ubiquitous mite, together with the viruses it vectors6, is the main biotic factor threatening A. mellifera colony survival, because infestations usually result in colony death within 2–3 years6,7,8,9. This is due to the exponential growth of mite populations sustained by developing worker brood throughout the year and seasonal male brood6. In sharp contrast, infested colonies of the original host, A. cerana, are surviving. Among several potential resistance traits of A. cerana6, the apparent absence of mite population growth in association with worker brood is likely to be most significant10. Other A. cerana populations naturally infested with different mite species and haplotypes also appear resistant to the ubiquitous invasive V. destructor Korean haplotype infesting sympatric A. mellifera in Asia11. Social immunity2 is likely to play a major role as resistance mechanism; for instance, adult honey bee workers cooperate to detect and remove worker brood infested by this mite, thereby interrupting its reproduction6,12. The trigger of this hygienic behaviour by workers is based on signals from infested brood13 and/or by cues from the parasite14, on the ability of workers to detect this information as well as on their response thresholds11,15,16. The ability of A. cerana workers to perform hygienic behaviour towards V. destructor-infested brood is greater than that of the new host, A. mellifera17. However, the mechanisms underlying this major resistance trait of A. cerana are unknown. In particular, the crucial role of mite-infested brood in inducing this behaviour has not yet been fully investigated, since all previous studies have been performed in the presence of adult workers, thereby confounding the respective roles of signals/cues, of detection abilities and of response thresholds, which may all contribute to efficient hygienic brood removal.
Here, we took an alternative approach to address the apparent gaps in our understanding of the mechanisms underlying the principal resistance traits of the original host of V. destructor, A. cerana. The traditional approach to dealing with complexity is to reduce or constrain it. Here, we experimentally reduce the complexity of our system by excluding one level (adult workers), thereby allowing for the first time to distinguish between the effects of brood and adult workers in the hygienic behaviour. By monitoring the development and survival of mite-infested honey bee brood of A. cerana and A. mellifera colonies in both the absence and presence of adult workers, we separated the respective roles of the developing brood from that of adult nestmates in the resulting hygienic behaviour. We hypothesised that the brood of A. cerana is more susceptible compared to A. mellifera, thereby providing the basis for a more efficient removal behaviour by adult nestmates. A higher susceptibility of infested or wounded worker brood associated with efficient hygienic behaviour in adult workers is expected to reinforce the social immunity of a honey bee colony infested by brood parasites or pathogens and may contribute to colony survival.
We infested 314 worker larvae from 6 colonies in one population of A. mellifera and from 4–5 colonies in each of three distant populations of A. cerana. For infestations, we used the invasive Korean haplotype of V. destructor18. Wax combs containing infested and non-infested control brood cells were placed in an incubator mimicking hive conditions for optimal brood development19. The cells were opened one day prior to the expected emergence date of the adult bees and the developmental stages of the individuals were recorded20.
The data shows a striking difference in the effect of parasitism between A. cerana and A. mellifera. The development of A. mellifera worker brood infested by V. destructor was similar to the non-infested controls. In contrast, in the three A. cerana populations, we found a higher frequency of individuals at early developmental stages in infested worker brood than in control brood (Fig. 1; Supplementary Fig. S1). Overall, the development of infested individuals was significantly delayed in A. cerana compared to A. mellifera (one-way ANOVA on log-transformed values with a Dunnett’s post hoc test using A. mellifera as control group, df = 3, F = 7.2, p = 0.003, Fig. 2). Whenever we observed larvae or pre-pupae (earliest developmental stages) one day prior to expected emergence, most of them were decomposed and were obviously dead (Fig. 1).
Figure 1: Mite-infested brood (above row) and control brood (bottom row) from an A. cerana colony (Phatthalung, Thailand).
Individuals were removed from their cells one day before emergence was expected. Most infested individuals stopped development at the larval and prepupal stages and died, Photo by Paul Page.
Figure 2: Delay in brood development calculated as the difference in number of developmental stages (x axis) separating infested brood from non-infested (control) brood in three populations of A. cerana and one of A. mellifera (y axis).
The average developmental delays within were compared by using a one-way ANOVA on log-transformed values combined with a Dunnett’s post hoc test using A. mellifera as control group. Values represented are means ± 1 S.E.M. ***P < 0.001.
In the presence of workers, and even when assuming an equal ability of both honey bee species to detect signals triggering hygienic behaviour as well as equal response thresholds towards them, this observed difference in brood susceptibility is likely to elicit an earlier and more frequent production of such signals, ultimately leading to more efficient removal behaviour and overall enhanced social immunity. In order to test this hypothesis, we subjected larvae of both species to a benign wounding and either placed them in an incubator to monitor their development or back into their colony of origin. A. cerana brood died more quickly and in greater proportions than A. mellifera in incubator conditions (Log-rank Mantel test, df = 1, Chi2 = 12.8, p < 0.001, Fig. 3a; Supplementary Fig. S2) and in colonies, A. cerana workers removed the wounded brood significantly more and faster than A. mellifera (Log-rank Mantel test, df = 1, Chi2 = 67.8, p < 0.001, Fig. 3b). These results indicate that A. cerana brood was affected faster and to a higher degree by wounding than A. mellifera and that wounded brood could be detected by workers for a more efficient hygienic removal. The higher proportion of brood removed by the workers in the colonies compared to our estimate of brood death in the incubator (Fig. 3) is likely due to the sensitivity of workers to dysfunctional individuals that could have survived in incubator conditions. Nonetheless, a benign wounding of A. cerana larvae appears to be sufficient to yield a reaction analogous to apoptosis in multicellular organisms. Given the use of a sterile pin for the pricking, these results also allow the exclusion of secondary pathogens commonly carried by V. destructor6 in the mortality observed.
(a) Mortality of wounded brood in A. cerana and A. mellifera developing in an incubator. The survival status of larvae pricked with a sterile glass-pulled needle and of control larvae was monitored every 12 hours during three days; (b) Removal of wounded brood in A. cerana and A. mellifera colonies. Larvae pricked with a sterile glass-pulled needle and controls were exposed to workers and their removal via hygienic behaviour was monitored every 12 hours during three days. Brood mortality and removal rates were compared with log-rank Mantel-tests. Values are means ± 1 S.E.M. **P < 0.01.
Hence, the significantly higher susceptibility of mite-infested brood of the original host of V. destructor leads to more efficient hygienic behaviour, thereby providing a basis for honey bee colony survival to parasitism and constituting an additional resistance trait of the original host of this parasite. Our results provide a most parsimonious explanation for the striking differences in the impact of infestations by the invasive Korean haplotype of V. destructor mites between the Western and the Eastern honey bee species. Brood susceptibility could also contribute to colony survival to V. destructor mite infestations in naturally resistant A. mellifera populations6,21,22,23,24.
Our counterintuitive result shows that susceptible individuals can benefit the superorganism, which goes against the common assumption that ‘strong’ elements of a social entity are required to ensure group survival. We here show that ‘weak’ elements can contribute to the strength of a social ensemble. This provides empirical support to theories on the adaptive value of suicide or high death rate in social insects25,26, thereby constituting a social analogue of apoptosis, a mechanism preventing the spread of infections by sacrificing parts of the whole organism27,28. Given the high number of individuals in a honey bee colony, some individuals can be (and are commonly) sacrificed without compromising the survival of the group29 and even promote colony survival by hindering further infestations30. Such altruistic suicide of immature individuals is a novel form of transgenerational social immunity in honey bees. Irrespective of the actual pathogen, the observed social apoptosis is most likely a fundamental defence mechanism of social insect colonies to combat diseases.
Mitigating the elevated losses of managed Western honey bee colonies, A. mellifera, experienced globally8 is crucial to ensure the sustainability of their valuable pollination services towards agriculture31 and ecosystem functioning32. If A. mellifera populations are to show variation in brood damage linked to V. destructor infestation or other diseases, a breeding concept based on brood susceptibility could be implemented. This might increase the efficiency of breeding programs and thus help alleviate the global losses of managed honey bees due to this parasitic mite and other brood diseases.
Adult V. destructor female mites were collected from drone and worker brood of A. mellifera colonies. We used the same colonies as mite sources to infest both species at each location. Batches of 10–20 collected mites were kept on 15–20 A. mellifera adult workers in plastic cages for at least two days, thereby mimicking the wandering stage of mites prior to reproduction in honey bee brood cells6. The invasive K1 (Korean) V. destructor haplotype was confirmed on a mite subsample (N = 146) using standard methods20 by comparing mitochondrial DNA sequences to references deposited in GenBank (V. destructor Cox-1 gene 458 bp fragment; Korean haplotype, accession number AF106899.1)18. Infestation experiments were performed in six colonies of A. mellifera in Chiang Mai (Northern Thailand; N 18°48′13″ and E 98°57′22″, A. mellifera can only survive in the northern part of the country) and on five, five and four colonies of A. cerana in Chiang Mai, Phatthalung (Southern Peninsular Thailand; Khuan Khanun, N 7°44′57″ and E 100°00′03″) and Samui island (N 9°32′05″ and E 99°58′28″), respectively.
V. destructor mites reproduce on honey bee brood developing within the wax cells of host nests. They enter these cells just before they are sealed with a wax cap by workers6. In A. mellifera combs, we mapped the positions of cells containing uncapped larvae at the appropriate stage (L5 larvae) on transparent sheets and reintroduced the comb into its colony of origin for natural capping by the workers to occur. Experimental cells were then selected among those that were capped within 6 hours and subsequently used for infestations20. Such infestations do not limit mite reproduction33,34. We partially opened the capping of selected cells using a razor blade edge and assigned one of two treatments: (1) infested cells: a single adult V. destructor female mite was introduced into the cell by using a fine paint brush and (2) control cells: the opening was only lightly brushed without introducing a mite. In both cases, the cell capping was then resealed.
In A. cerana, natural wax combs are not built on wooden frames so they cannot be placed back into their colony of origin to be capped naturally. Thus, the cells used for these experiments were identified based on a visual assessment of larval developmental stage and when possible of partial capping of the cells. Infestation (1) or sham treatment (2) was performed as above for A. mellifera, but the cells were capped with a layer of paper tissue. This layer of paper was sealed to the cell walls with the use of a pre-heated nail head.
For each colony, we used approximately the same number of infested and control cells, which varied from 8–45 and 9–46 respectively, depending on the number of L5 larvae available at the beginning of each infestation experiment. Once the infestations were performed, we cut out the portion of comb with the infested cells and suspended it in an incubator at developing brood conditions, i.e. 34.5 °C and 70–90% RH. Whenever field conditions did not allow us an access to a laboratory incubator, we used a portable incubator connected to a 12 V battery and yielding identical temperature and humidity conditions in order to store the combs. Apis cerana and A. mellifera workers display the same developmental periods before capping: 3 days from egg to larva followed by 6 days of molting larval instars (L1 to L5). After capping occurs, however, their preimaginal stages differ by one day, as A. mellifera workers need 12 days of pupation to fully develop into an adult, while A. cerana workers only require 11 days until bee emergence35. We thus opened the experimental cells one day before the expected emergence date and reported the developmental stage of the opened brood as well as its survival status. We recorded the developmental data as follows: larva, pre-pupa, white-eyed, pink-eyed and purple-eyed pupae were considered to be immature stages of development (stages 1–5), whereas yellow-thorax, grey-winged, grey-thorax, grey-abdomen pupae and adults were defined as mature stage (stage 6) based on the developmental pattern observed in the control at the time of cell opening.
We used data from cells containing brood that was not affected by chalkbrood infection, by wax moths or by involuntary crushing of the comb. In addition, we only considered artificially infested cells that showed a clear sign of infestation, i.e. the occurrence of feces or the presence of a V. destructor mite in the cell, and that were not naturally infested by either Tropilaelaps spp. or local Varroa spp. mites, prior to the experiment.
We ranked each individual from 1 (larva) to 6 (mature), depending on its developmental stage at cell opening. Within each replicate, we calculated an average developmental stage for infested and control cells separately and subtracted the former from the latter, in order to obtain a mean developmental delay per colony. All residuals were normally distributed within populations and the variance was homogeneous between populations. We then compared the average developmental delays within each species and each location by using a one-way ANOVA on log-transformed values combined with a Dunnett’s post hoc test and A. mellifera as the control group. Statistical calculations were performed using Systat software (version 13).
Further analyses were performed with generalized linear models (GLMs) applied to the same developmental stage dataset with colony as random factor and using the lmer function from the package lme436. Response variables were the frequencies of control and infested individuals at each stage in each colony. They were modelled with Poisson error distributions. Statistical tests were performed in R software (R version 3.2.2)37 and are summarized in the Supplementary Table S1.
We used 5 colonies of Apis mellifera and 5 of Apis cerana kept in Langstroth hives in an apiary at Zhejiang University, Hangzhou (China) for the larval wounding experiments. On the combs of both species, we identified cells by mapping brood at the L5 stage, as described above. We then replaced the comb into the colony for capping by the workers to occur and identified the capped cells 6 hours after the mapping. We used a fine pulled-glass capillary with a diameter similar to that of the V. destructor mite chelicerae (Ø = 50 μm) to wound the larvae by pricking, simulating the wound induced by V. destructor mites feeding on the bee larvae38,39. We inflicted wounding by pressing the tip of the capillary against the cuticle until it gave way. We sterilized the needle with ethanol before each use and replaced it anew for each colony tested. Two experiments were conducted in each species in order to quantify the susceptibility of larvae towards wounding, firstly in the absence of workers and secondly in their presence to compare the removal of wounded brood by workers, i.e. hygienic behaviour.
(1) To measure the susceptibility of wounded larvae, we pricked 30 freshly capped larvae and instead of resealing the wax capping, we removed it and closed the cell with a transparent gelatin cap, allowing for the observation of brood development40. As a control, we opened 15 freshly capped cells and sealed them with a gelatin cap without pricking the larvae (controls for the effect of pricking) and we left 15 cells non-manipulated (controls for the effect of gelatin cap on larva survival). We then placed the comb into an incubator at developing brood conditions, i.e. 34.5 °C and 70% RH, and checked the experimental cells every 12 hours during the next three days. At every check, we reported the survival status of the brood in the cells. We considered a larva dead when it turned black and deflated or when it did not stretch in the cell as is typical for the transition to pre-pupal stage. We opened the non-manipulated cells after 72 hours to identify the final state of larvae/pre-pupae.
(2) To measure the hygienic removal of wounded larvae, we opened 30 freshly capped cells and gently pricked the larvae inside of them. As a control, we opened 15 cells without pricking the larvae (positive controls). Wax caps of cells with pricked and non-pricked larvae were then resealed. As a control for the effect of cell opening on removal by workers, we mapped an additional 15 cells that we did not manipulate (negative controls). The comb was then replaced into its original colony and the experimental cells were checked every 12 hours during the next 3 days. At every comb check, we reported the number of mapped brood cells that had been cleaned out by the workers of each species during an interval, i.e. brood removal.
(1) To assess susceptibility to wounding, we counted the dead and surviving larvae in each species and at each time interval. (2) To compare hygienic removal of wounded brood, we counted the number of wounded brood removed by the workers of each species at each time interval. As the respective mortality and removal rates of the different controls were not significantly different for either experiment (log-rank Mantel test; susceptibility: A. mellifera, df = 1, Chi2 = 0.34, p = 0.56; A. cerana, df = 1, Chi2 = 0.0, p = 0.99; hygienic removal: A. mellifera, df = 1, Chi2 = 2.0, p = 0.16; A. cerana, df = 1, Chi2 = 1.0, p = 0.32), these data were pooled. The validity of our assays was confirmed by the control mortality being below a 15% threshold41. We then compared the mortality rates and wounded brood removal rates between bee species by means of log-rank Mantel tests.
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de Guzman, L. I., Khongphinitbunjong, K., Rinderer, T. E., Tarver, M. R. & Frake, A. M. A laboratory technique to study the effects of Varroa destructor and viruses on developing worker honey bees . J. Apic. Res. 52, 262–264 (2013).
Alix, A. et al. Environmental risk assessment scheme for plant protection products. EPPO Bulletin, chapter 10: Honeybees – Proposed scheme . Julius-Kühn-Archiv. 423, 27–33 (2010).
This research was supported by a Swiss National Science Foundation grant to V.D. and P.N. (31003A_147363), by the Vinetum Foundation to P.N., by the Fundamental Research Funds for the Central Universities to H.Z. and by Thailand Research Fund (BRG 5580013) to P.C. and by the Earmarked Fund for Modern Agro-industry Technology Research System from the Ministry of Agriculture of China (CARS-45) to F.H. We thank all the participating beekeepers for their assistance and in particular Weeraya Sommana and Weerapon Hounjam for their help in obtaining and keeping our colonies in South Thailand. Thanks also go to the Agricultural Technology Promotion Center (Economic Insects) Chiang Mai Province for access to their facilities, to Patrick Bischoff (Agroscope) for technical support on our portable incubator, to Ana Paula Machado for genetic analyses, as well as to Li Li and Zhendong Jiang for technical assistance in the larval wounding experiments.
V.D., P.N., H.Z. and P.P. conceived and designed the study; V.D., H.Z. and P.P. conducted the research with input from P.N., F.H. and P.C.; V.D., P.P., N.B., H.Z. and Z.L. performed the experiments; V.D., P.P. and L.Z. analysed the data; V.D., P.N. and P.P. wrote the manuscript with contributions from all authors.
Correspondence to Huoqing Zheng or Panuwan Chantawannakul.

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Messrs. Samuel H. Hays, John F. Nugent, and Pasco B. Carter for plaintiffs in error.
The case is before us on a motion to dismiss or affirm. The action of the court below which it is sought to review affirmed a judgment of the trial court entered on the verdict of a jury in a suit brought by the state for the use and benefit of O. W. Allen and two hundred and eighteen other named depositors of the Boise State Bank against Platt, a state bank commissioner, and the surety on his bond, for losses alleged to have been suffered by each of the individuals named as the result of alleged neglect of official duty imposed by the state law upon the bank commissioner. The wrong relied upon was his alleged misconduct in not closing the doors of the bank, and permitting it to continue business after he had discovered, as the result of an official examination, that the bank was hopelessly insolvent. The bill as a first cause of action fully set out the facts and stated the legal grounds relied upon to establish the loss and right of O. W. Allen to recover, and separate causes of action were then stated in favor of each of the two hundred and eighteen other depositors. There was an application to remove the case to the district court of the United States on the ground of diverse citizenship, the depositors named being citizens of Idaho, and Platt, the bank commissioner, being then a resident of California, and the Surety Company of Pennsylvania, which application was denied. After issue joined there was a trial before a jury and a verdict in favor of the plaintiff, the state, and against the defendants, 'on each and every cause of action set forth in the complaint herein, to and for the use and benefit of each of the parties named in each of the separate causes of action set forth in plaintiff's complaint.' And it was conformably adjudged 'that the said plaintiff do have and recover of and from the said defendants . . . for the [240 U.S. 136, 140] use and benefit of each of the following-named parties, the sums set opposite their respective names, to wit,' etc. No one of the amounts thus awarded to the plaintiff for the use of any one of the named persons equalled $3,000, but the sum of all the claims equalled $30,000. In affirming the judgment the court below held that the relief prayed was authorized by the state statutes, and that they also conferred authority upon the state to bring the suit as an express trustee for the use and benefit of the respective parties.
The Federal questions relied upon are, first, the alleged wrongful denial of the right to remove, and second, an asserted error committed by the court below in refusing to sustain a claim under the due process clause of the 14th Amendment.
The first is plainly without merit. Treating the state as the party plaintiff, it is not open to question that there was no right to remove. Stone v. South Carolina, 117 U.S. 430 , 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Missouri, K. & T. R. Co. v. Missouri R. & W. Comrs. (Missouri, K. & T. R. Co. v. Hickman) 183 U.S. 53, 58 , 46 S. L. ed. 78, 80, 22 Sup. Ct. Rep. 18. And if we were to accede to the contention made in argument that the state must be treated as merely a nominal party, and the right to remove be then determined by the citizenship of the individuals for whose benefit recovery was allowed, it would yet follow, since none of the distinct judgments in favor of any of the individuals are large enough to confer jurisdiction, that the court below correctly held that there was no basis for the right to remove. Woodside v. Beckham, 216 U.S. 117 , 54 L. ed. 408, 30 Sup. Ct. Rep. 367; Troy Bank v. G. A. Whitehead & Co. 222 U.S. 39 , 56 L. ed. 81, 32 Sup. Ct. Rep. 9; Rogers v. Hennepin County, 239 U.S. 621 , 60 L. ed. --, 36 Sup. Ct. Rep. 217. In fact, the correctness of these conclusions is made clear by the arguments advanced to the contrary, since they serve only to confuse and are destructive of each other. Thus, on the one hand, for the purpose of establishing the existence of diversity of citizenship justifying the removal, it is urged that the state must be treated as merely a nominal party, having [240 U.S. 136, 141] no interest, and as in no wise concerned in the judgment, and then upon the hypothesis that the state is eliminated, in order to establish a jurisdictional amount sufficient to remove, the award of distinct and separate amounts made by the judgment in favor of each of the distinct plaintiffs is wholly ignored, and it is urged that there is but judgment, which is in favor of the state, and which is composed of the aggregate of the distinct amounts.
Second. The proposition under the 14th Amendment relied upon is that, consistently with that Amendment, the state had not the power to put upon the bank commissioner the duty of closing the bank in case, on examination, it was found to be insolvent, since such authority, consistently with due process, could only have been exerted after judicial proceedings to ascertain the facts, and the awarding of relief accordingly. The pleadings leave it exceedingly doubtful whether the question thus urged was presented in either of the courts below, and it is, besides, obvious from the opinion of the court below that it considered that the only question raised under the Constitution of the United States was a contention that there would result a want of due process if the state statutes conferred upon an administrative officer the authority to liquidate the affairs of the insolvent bank without judicial proceedings. We say this because, in its opinion, the court observed that if that was the contention, it was irrelevant, as the statutes did not authorize liquidation except as a result of judicial proceedings, although they did impose upon the bank commissioner the duty, after he found a bank to be insolvent, to close its doors and prevent the further transaction of business until, in the orderly course of procedure, a judicial liquidation might be accomplished. But assuming, as it is now insisted in argument was the case, that the question relied upon was the repugnancy of the state statute to the due process clause of the 14th Amendment, because [240 U.S. 136, 142] power was conferred upon an administrative officer in the event of insolvency to close the doors of a bank without awaiting judicial proceedings, and that the observation on that subject by the court below was an adverse decision of such question, we think it suffices to state the proposition to demonstrate its want of merit. Noble State Bank v. Haskell, 219 U.S. 104 , 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487; Shallenberger v. First State Bank, 219 U.S. 114 , 55 L. ed. 117, 31 Sup. Ct. Rep. 189.

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Hall St. v. Mattel: Least necessary SCOTUS decision ever?
Hall Street Associates, L.L.C. v. Mattel, Inc., which the U.S. Supreme Court decided on Tuesday, provides a rather striking example of apparent attorney myopia leading to appellate courts ruling on issues that never should have been presented in the first place.
In many instances, agreements to arbitrate civil disputes are very good things. Arbitration tends to be simpler, quicker and cheaper than resolving disputes via formal litigation. Typically, parties to a contract who want to avoid litigation will include a provision in the written agreement to the effect that any dispute arising under or relating to the contract will be submitted to one or more private arbitrators, selected by the parties, for final and binding resolution.
Back in the day, courts were openly hostile toward private arbitration contracts, so much so that they regularly refused to enforce them. In 1920 the state legislature of New York passed legislation aimed at compelling judicial enforcement of such agreements. Congress followed suit in 1925 with the Federal Arbitration Act (“FAA”), codified at 9 U.S.C. §§ 1-16.
There’s at least one gargantuan risk inherent in arbitration, namely the risk of getting royally screwed over and having no recourse. Arbitrators’ decisions aren’t enforceable all by themselves. If the loser at arbitration refuses to comply, the winner can petition a court for an order confirming the arbitration award. At that point the arbitrator’s decision becomes a court judgment and is enforceable as such.
The FAA provides that a court “must” confirm an arbitration award unless grounds for vacating, modifying or correcting the award exist. 9 U.S.C. § 9. A court may vacate an arbitration award only if: “the award was procured by corruption, fraud, or undue means”; the arbitrator(s) exhibited “evident partiality or corruption”; the arbitrator(s) committed “misconduct” in the form of improperly refusing to postpone a hearing or refusing to consider relevant evidence; or the arbitrator(s) engaged in “other misbehavior” that prejudiced a party’s rights. 9 U.S.C. § 10. A court may “modify or correct” an award only if the arbitrators: were guilty of “evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award”; decided “a matter not submitted to them”; or issued an award “imperfect in matter of form not affecting the merits of the controversy.” 9 U.S.C. § 11.
Glaringly absent from the statutory grounds for vacating, modifying or correcting an arbitration award is any provision authorizing a court to correct an arbitrator’s errors of law and/or law application. As the courts have interpreted §§ 10 and 11, such authority is either nonexistent de jure or so ridiculously limited as to be nonexistent de facto.
Therein lies the crap shoot. All too many people who do arbitrations are blithering idiots, and even the very best can make egregious errors of law from time to time. In those cases, the aggrieved party most likely stuck with the arbitrator’s flat-wrong decision thanks to the FAA’s severely restricted rules of judicial review, which are binding on trial courts and appellate courts alike.
Hall St.‘s facts evidence nothing of what’s good about arbitration. Hall St. Associates owned property in Oregon that Mattel leased and used as a manufacturing facility. The lease, which apparently did NOT contain an arbitration clause, provided that Mattel would indemnify Hall St. for any damages arising from the failure of Mattel or predecessor lessees to comply with applicable “environmental laws”. A state agency discovered chemical contaminants on the property, apparently the result of activities conducted by Mattel’s predecessor lessees.
Mattel gave notice of lease termination in 2001. Hall St. responded by filing suit in an Oregon state court: (1) contesting Mattel’s right to terminate the lease; and (2) seeking indemnification for cleanup costs. Mattel removed the case to federal court. The issues were bifurcated and following a bench trial the court ruled in Mattel’s favor on the termination question.
The United States District Court for the District of Oregon may enter judgment upon any award, either by confirming the award or by vacating, modifying or correcting the award. The Court shall vacate, modify or correct any award: (i) where the arbitrator’s findings of facts are not supported by substantial evidence, or (ii) where the arbitrator’s conclusions of law are erroneous.
The stipulated standard of judicial review is much broader than that laid out in the FAA. The arbitrator’s findings of fact were subject to “substantial evidence” review, and the parties gave the court plenary power to vacate “erroneous” conclusions of law. That, in essence, is de novo review.
The arbitrator found for Mattel based on the rather boneheaded conclusion that the Oregon Drinking Water Quality Act, the applicable substantive law, wasn’t an “environmental law” for purposes of the lease’s indemnity clause because the statute dealt with human health as opposed to environmental contamination (as if the two were mutually friggin’ exclusive). The trial court, applying the parties’ agreed-upon standard of judicial review, vacated the award. The arbitrator issued a new award, this time for Hall St., based on the trial judge’s conclusion that the Oregon statute at issue qualified as an environmental law.
After much procedural wailing and gnashing of teeth, the U.S. Court of Appeals for the Ninth Circuit held that the parties’ agreement for expanded judicial review of the arbitration award was unenforceable. FAA §§ 10 and 11 provide the exclusive grounds for messin’ with an arbitration award, the Ninth Circuit ruled, and agreements purporting to expand those grounds to include review for substantive legal error are null. The court of appeals ultimately sent the case back to the trial judge with instructions to confirm the original arbitration award for Mattel unless statutory grounds for vacatur, modification or correction existed.
Did the Ninth Circuit Court of Appeals err when it held, in conflict with several other federal Courts of Appeals, that the Federal Arbitration Act (“FAA”) precludes a federal court from enforcing the parties’ clearly expressed agreement providing for more expansive judicial review of an arbitration award than the narrow standard of review otherwise provided for in the FAA?
After reading the lower court opinions and the cert order, I couldn’t help but ask myself, “How in the mule-fellating hell does this case have ANYTHING to do with the FAA?” After all, there was no arbitration clause in the lease, a fact that rendered irrelevant the FAA’s requirement that courts enforce arbitration agreements. And the stipulation to arbitrate came three years into a contentious and no doubt exceptionally expensive lawsuit, which pretty much forcibly buggers the public policy of encouraging quick and economical dispute resolution via arbitration.
More important, the parties agreed to arbitrate in the course of ongoing litigation and submitted the agreement to the court, which entered an order approving it. Under those circumstances, why isn’t the order approving the stipulation enforceable as a case management order per Rule 16 of the Federal Rules of Civil Procedure? The order approving the parties’ agreement also appears enforceable under the federal Alternative Dispute Resolution Act.
(1) Does authority exist outside the Federal Arbitration Act (FAA) under which a party to litigation begun without reliance on the FAA may enforce provision for judicial review of an arbitration award?
(2) If such authority does exist, did the parties, in agreeing to arbitrate, rely in whole or part on that authority?
(3) Has petitioner [Hall St.] in the course of this litigation waived any reliance on authority outside the FAA for enforcing the judicial review provision of the parties’ arbitration agreement?
SCOTUS ultimately decided only the issue originally presented to it, holding (6-3) that parties may not alter by agreement the grounds set forth in FAA §§ 10 and 11 for vacating, modifying or correcting an arbitration award. The Court punted on the supplemental briefing issues, shipping the case back for consideration of whether any non-FAA basis for enforcing the agreement exists and, if so, whether Hall St. waived its right to rely on any such basis by not raising it in the trial court.
Professor Sarah Cole of Ohio State’s Moritz College of Law provides some interesting and incisive commentary on Hall St. here and here. Professor Cole opines — correctly, IMO — that Hall St. officially kills most nonstatutory bases for vacating an arbitration award mentioned in federal court decisions (“totally irrational,” “public policy” and “arbitrary and capricious”). She also has some interesting commentary regarding the fate of the Court’s [in]famous “manifest disregard” of the law dictum from Wilko v. Swan, 346 U.S. 427 (1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989).
For me, though, Hall St. is noteworthy not so much for the ruling but for how it got to SCOTUS in the first place. In moving to vacate the original arbitration award, Hall St.’s lawyers rode their best horse, namely the agreement allowing full review for legal errors. By way of opposition, Mattel rode its best horse, namely the argument that the FAA supplies the exclusive grounds for vacating an arbitration award. From that point on, everyone (courts and lawyers alike) focused exclusively on what the FAA does or doesn’t allow. The participants appear to have looked right past an argument that, to a procedure geek at least, jumps off the page and to my eye looks like a slam dunk for Hall St., namely that the court-approved stipulation is enforceable independent of the FAA per the ADR Act and Civil Rule 16.
Would the petitioner have won in the lower courts had its attorneys not developed FAA tunnel vision? There’s no way to tell, of course, but I suspect so. In that event, this case likely wouldn’t have aroused much interest from SCOTUS at all, certainly not the four votes worth of interest required for a grant of certiorari.
As matters now stand, though, there’s a substantial likelihood that Hall St. will lose. The lower courts are surely anxious to be done with this case, which renders Mattel’s chances of succeeding with a waiver argument on remand pretty damn good.
Lesson for n00b lawyers (all lawyers, for that matter): never let the other side dictate the terms of the debate. Analyze the issues. Look hard for alternative arguments. They’re there. If you can’t see any alternatives yourself, get help. Consider the alternatives thoroughly before rejecting them.
 I’m speaking here of real arbitration agreements, the sort reached as the result of arm’s length bargaining among parties of relatively equal strength. Arbitration clauses slipped into credit card agreements or insurance policies that the customer sees only after signing up are a whole ‘nother kettle o’ fish.


Present: DUFFLY, KANTROWITZ, & KAFKER, JJ.
Divorce and Separation, Pension benefits. Pension.
COMPLAINT for divorce filed in the Franklin Division of the Probate and Family Court Department on September 25, 1996.
A motion for clarification of the judgment of divorce nisi and a motion for entry of a domestic relations order were heard by Geoffrey A. Wilson, J.
Jack D. Curtiss for Frank C. Brower.
Wendy H. Sibbison for Sharon O. Brower.
KANTROWITZ, J. May a percentage of the husband's future pension benefits, based on the husband's earnings after the period of marriage, be included in the marital estate? We hold that, in the circumstances of this case, it may.
The husband appeals from (1) the denial of his motion for clarification of that part of the judgment of divorce nisi dividing his public pension; and (2) the allowance of the former wife's motion for entry of a qualified domestic relations order. More specifically, the husband argues the judge erred in approving a domestic relations order that followed a sample order issued by the Massachusetts Teachers' Retirement Board whereby the wife, as alternate payee, is to receive a percentage of his public pension upon his retirement based upon a calculation using his future compensation and years of continued public employment accrued after the date of the divorce judgment.
Background. The parties were married on July 8, 1973, and, after twenty-six years of marriage, the plaintiff, Sharon O. Brower, divorced her husband, Frank C. Brower. The judgment of divorce nisi entered on July 8, 1999. At the time of trial, the husband was fifty years old and had been employed as a public school teacher for over twenty-two years. [Note 1] His Massachusetts teacher's retirement pension was the principal marital asset. In dividing the pension benefits, the judge ordered that "[t]he Wife shall receive an irrevocable survivor beneficiary interest in and to 37.5% of the Husband's Massachusetts Teacher's Retirement benefit which had accrued as of July 8, 1999, commencing at the time of the Husband's retirement." Neither party appealed from the judgment.
In May, 2000, the wife, pursuant to the judgment, submitted a qualified domestic relations order to the court. [Note 2] The husband thereafter filed a motion for clarification with regard to the division of his pension benefits. His motion was denied and the court approved the domestic relations order. On appeal, he argues that the order is in contravention of a 1990 amendment to G. L. c. 208, § 34, which, he argues, limited the marital estate to assets "accrued during the marriage." [Note 3] He claims error in that the order calls for the use of the average of his three highest consecutive yearly salaries as of his actual retirement date, rather than as of the date of divorce, in determining the marital portion of the benefit. This, he claims, includes in the marital estate retirement benefits that will accrue after the marriage ended.
Discussion. We are guided by Moriarty v. Stone, 41 Mass. App. Ct. 151 (1996), where a similar argument was made concerning assets accrued prior to the marriage. "It is apparently the husband's position that the 1990 amendment evinces an intent on the part of the Legislature to exclude retirement-related benefits accrued prior to the marriage from the estate to be divided under § 34." Id. at 156 n.4. We disagreed and held that the statutory phrase "accrued during the marriage" did not prohibit a judge from including within the assignable estate that part of a spouse's pension or retirement benefits that accrued prior to the marriage. [Note 4] We see no reason why that analysis cannot be applied to the similar postmarriage assets at issue here. [Note 5] Baccanti v. Morton, 434 Mass. 787 (2001), buttresses our view. There the court addressed the related issue of the division of stock options. "The trial judge has discretion under G. L. c. 208, § 34, to decide whether an asset should be included in the marital estate based on the parties' joint efforts in acquiring that asset and should not necessarily be confined by the period of the marriage." [Note 6] Id. at 799.
Here, the judge was faced with a difficult determination. The actual value of the pension (which, as we have said, was the primary marital asset) depended on a number of variables that could not be determined in advance. The husband could retire in a day, a year, or a decade. He might remarry or die before reaching retirement. Given the present financial circumstances of the parties, a buy-out, while preferable, was not practical. See Early v. Early, 413 Mass. 720 , 726 (1992). Left with deciding whether, for purposes of asset distribution, the retirement benefit should be calculated at the time of the dissolution of the marriage [Note 7] or at the time of retirement, [Note 8] the judge's findings of fact indicate that he chose the latter. [Note 9] We cannot say this was improper.
"[I]n consideration of the one spouse [for]going the present enjoyment of the benefits, he or she will share in any increase in benefits that continued employment will produce, including increase in pension benefits and salary." In re Marriage of Hunt, 909 P.2d 525, 537 (Colo. 1995), quoting from Koelsch v. Koelsch, 148 Ariz. 176, 179 (1986), quoting from Koelsch v. Koelsch, 148 Ariz. 187, 191 (Ct. App. 1984). "[A] nonemployee spouse should be compensated for risk of forfeiture, delay in receipt, and lack of control over the timing of receipt of benefits." Hunt, supra at 537.
"Under G. L. c. 208, § 34, judges possess broad discretion to divide marital property equitably. . . . In reviewing a judgment pursuant to § 34, we look for express findings confirming that all relevant factors in § 34 were considered by the judge. . . . We also determine whether the reasons for the judge's conclusions are apparent in his findings and rulings. . . . We will not reverse the judge's conclusion unless it is 'plainly wrong and excessive.' " Dalessio v. Dalessio, 409 Mass. 821 , 830 (1991), S.C., 413 Mass. 1007 (1992), quoting from Redding v. Redding, 398 Mass. 102 , 107 (1986).
[Note 1] A pension valuation in the record states that "it appears" that the husband's employment in the public school system began "on or about 10/14/1971," but that he "appears to have left or taken a leave of absence, since he was reinstated effective 9/1/1976." The trial judge found that the husband had been employed as a public school teacher for between twenty-two and twenty-seven years.
"The Alternate Payee's Benefit shall be equal to thirty-seven and one-half percent (37.5%) of the marital portion of the Participant's benefit commencing at the time of the Participant's actual retirement. The marital portion of the Participant's benefit is the benefit the Participant would have received at his actual retirement date in the absence of this Order, determined using his highest consecutive three-year average salary at his actual retirement date, and using the benefit percentage specified in the Retirement Plan for the age at which the Participant actually retires and commences receiving his benefit, but using only his credited service under the Retirement Plan through July 8, 1999."
[Note 3] General Laws c. 208, § 34, as amended through St. 1990, c. 467, reads, in pertinent part: "Upon divorce or upon a complaint in an action brought at any time after a divorce . . . the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance" (emphasis added).
[Note 4] "The 1990 amendment left unchanged the language 'all or any part of the estate of the other.' The term 'estate' has traditionally encompassed all property to which a party holds title, whenever and however acquired, and includes property obtained by a party before marriage. . . . We do not think that, by amending § 34 to specify certain types of property included therein, the Legislature intended to alter the long-established definition of the 'marital estate' subject to division." Moriarty v. Stone, 41 Mass. App. Ct. at 156-157.
[Note 5] Our decision is not contrary to Kuban v. Kuban, 48 Mass. App. Ct. 387 (1999), or Daugherty v. Daugherty, 50 Mass. App. Ct. 738 (2001). In those cases we held that an employer's postmarriage contributions to an employee spouse's annuity fund (Kuban) or profit sharing fund (Daugherty) were after-acquired assets and not subject to division. Here, we are concerned only with the narrow issue of postmarriage salary enhancements used in calculating the nonemployee spouse's interest in the pension where a present valuation and distribution of the pension benefit is not feasible or equitable.
[Note 6] "[I]n those cases in which the division of [stock] options is contested, in order to determine whether and to what extent stock options may be included in the marital estate, the judge must determine if the options were given for efforts expended before, during, or after the marriage." Baccanti v. Morton, 434 Mass. at 799. "If the options were given for efforts expended before or during the marriage, they are part of the marital estate. . . . If, however, the options were given for efforts to be expended after the marriage, in order to include them in the marital estate, the judge must determine whether the options were nonetheless given for efforts attributable to the marital partnership." Id. at 799 n.7.
[Note 7] Calculating the value of the pension as of the date of divorce, called the "bright line" rule, "likens post-divorce pension enhancements to post-divorce earnings and characterizes all such increases as the separate property of the employee spouse." In re Marriage of Hunt, 909 P.2d 525, 532 (Colo. 1995). Such a rule has been approved in Shill v. Shill, 115 Idaho 115 (1988); Armstrong v. Armstrong, 34 S.W.3d 83 (Ky. Ct. App. 2001); Madrid v. Madrid, 101 N.M. 504 (N.M. Ct. App. 1984); In re Marriage of Rogers, 45 Or. App. 885 (1980); Berrington v. Berrington, 534 Pa. 393 (1993); Berry v. Berry, 647 S.W.2d 945 (Tex. 1983).
[Note 8] This approach, sometimes referred to as the "time rule" formula, incorporates the distribution of postmarital pension enhancements and "recognizes that post-divorce pension benefit enhancements defy easy categorization. Typically, there is commingling of effort undertaken during the marriage and after the marriage which together enhance the value of the future benefit. The employee spouse's ability to enhance the future benefit after the marriage frequently builds on foundation work and efforts undertaken during the marriage. Hence, the theory underlying the 'time rule' formula is called the 'marital foundation' theory." Hunt, 909 P.2d at 534. See Baccanti v. Morton, 434 Mass. at 801; Dewan v. Dewan, 17 Mass. App. Ct. 97 , 101 (1983), S.C., 399 Mass. 754 (1987); Brandt, Valuation, Allocation, and Distribution of Retirement Plans at Divorce: Where are We?, 35 Fam. L.Q. 469, 472-473 (2001).
As described in Hunt, 909 P.2d at 531, "The 'time rule' formula includes a marital fraction, sometimes referred to as a 'coverture fraction,' which determines the marital interest in the pensions." See Dewan, 17 Mass. App. Ct. at 101. The time rule formula has been approved in In re Marriage of Lehman, 18 Cal. 4th 169 (1998); Hunt, supra; Stouffer v. Stouffer, 10 Haw. App. 267 (1994); Hendricks v. Hendricks, 784 N.E.2d 1024 (Ind. Ct. App. 2003); In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996); Warner v. Warner, 651 So. 2d 1339 (La. 1995); Lynch v. Lynch, 665 S.W.2d 20 (Mo. Ct. App. 1983); Rolfe v. Rolfe, 234 Mont. 294 (1988); Gemma v. Gemma, 105 Nev. 458 (1989); Risoldi v. Risoldi, 320 N.J. Super. 524 (1999); Berry v. Meadows, 103 N.M. 761 (Ct. App. 1986); Olivo v. Olivo, 82 N.Y.2d 202 (1993); Welder v. Welder, 520 N.W.2d 813 (N.D. 1994); Woodward v. Woodward, 656 P.2d 431 (Utah 1982); Bulicek v. Bulicek, 59 Wash. App. 630 (1990).
" '[T]he award is typically a percentage . . . of that portion of the pension benefits attributable to the period of the marriage. The portion attributable to the period of the marriage is generally determined by multiplying the net pension benefit by a fraction [often called the "coverture fraction"], the numerator of which is the time period during which retirement benefits were accrued during the marriage and the denominator of which is the total period of accrual.' [Dewan, supra] at 101.
"The actuarial formula used in paragraph 5 of the Domestic Relations Order executed by the Court in this instance reflects this model by allowing the full benefit to accumulate until, and be calculated as of, the date of the Husband's retirement, at which point this sum is apportioned relative to the date of divorce" (emphasis added).
[Note 10] For example, "[p]ension plans come in many complex varieties and forms, including vested or unvested pensions, matured or unmatured pensions, defined benefit or defined contribution pensions, contributory or noncontributory pensions, etc." Hunt, 909 P.2d at 529-530.
[Note 11] Under G. L. c. 32, § 5, which governs the husband's pension, his annual retirement allowance is determined by multiplying three variables: (1) years of creditable service; (2) a percent (which increases with age, from a low of 1.5 percent at age fifty-five to a high of 2.5 percent at age sixty-five); and (3) the highest consecutive three-year average salary earned. In determining the wife's share, the judge altered the first factor by substituting for the total years of creditable service the number of years of service through the date of divorce; he left the other two elements unchanged. The husband argues that the wife's share should be further limited by factoring into the third element only his earnings as of the date of divorce.
[Note 12] While the judge purported to follow Dewan, 17 Mass. App. Ct. at 101, see note 9, supra, his methodology deviated in one respect from the Dewan formulation and the "time rule" formula (see note 8, supra): typically, the nonemployee spouse is credited only with the number of years of marriage during which the employee spouse was employed. Here, the judge did not limit the number of years of employment in the first element of the formula (see note 11, supra) to the couple's twenty-six years of marriage. (See note 2, supra, assigning the husband's "credited service under the Retirement Plan through July 8, 1999," to the first element of the three-part formula.) Thus, nearly two years of the husband's employment prior to the marriage (October 14, 1971, to July 8, 1973, but see note 1, supra), was not excluded by the judge. In this case, the number of years of employment prior to the marriage is relatively small compared to the total number of years of marriage. In other cases, the number of years employed prior to the marriage could be more significant. The husband here does not appeal from that aspect of the order, and we address it no further.
[Note 13] See, e.g., Daugherty v. Daugherty, 50 Mass. App. Ct. at 740-741, wherein the parties disagreed as to the date a profit sharing fund should have been valued -- the date of the separation, divorce, or property division trial. The court quoted Davidson v. Davidson, 19 Mass. App. Ct. 364 , 370 n.9 (1985), stating that "[w]e intend no suggestion of a rule fixing any of [the dates when marital property is identified], or excluding some earlier time in appropriate circumstances, e.g., the date of the separation of the parties, as determinative in identifying divisible property. We think the development of the law in this respect is best left to a case-by-case analysis." Daugherty v. Daugherty, supra.
[Note 14] We thus are not adhering solely to the use of one formula over another. See, e.g., Koelsch v. Koelsch, 148 Ariz. 176, 182-183 (1986); Cooper v. Cooper, 167 Ariz. 482, 488-490 (Ct. App. 1990). The ultimate consideration is fairness; whichever formula accomplishes that goal in a particular case is the formula that is preferable.
[Note 15] The wife's request for appellate attorney's fees is denied. The request contains no information as to the financial circumstances of the wife. That the lower court awarded fees to the wife in the amount of $3,800 to defend her interests against the husband's appeal does not compel a similar result here.


This matter is presently before the Court on Defendants' Motion for Leave to File Late Summary Judgment Motion. On January 9, 2006, the Court granted Defendants' Motion for Leave to File Late Summary Judgment Motion. In addition, the Court explained that the motion presents the question of whether Plaintiff's claim is barred by the decision in Heck v. Humphrey, 512 U.S. 477 (1994). Therefore, the Court ordered that it would hear oral argument that was "limited solely to theHeck issue." (Order, Jan. 9, 2006.) The Court has now decided to rule on the Heck issue without oral argument, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2).
It should be noted that Defendants attached their "Brief in Support of Motion to Dismiss Plaintiff's Claims" to their "Motion for Leave to File Late Summary Judgment Motion." As Plaintiff's Responses address both motions, the Court shall treat the Defendants' filing as such.
In their Motion to Dismiss, Defendants assert that because ofHeck, "Plaintiff's claims are barred by his nolo plea and the unchallenged conviction that resulted." (Def.'s Br. Supp. Mot. to Dismiss, 2.) On the other hand, Plaintiff argues that Heck is inapplicable here because the "Plaintiff's plea of nolo contrendre [sic] was not for the crime to which the Plaintiff confessed, but rather [to] a completely separate crime of accessory after the fact." (Pl.'s Br. Supp. Resp. to Def.'s Mot. to Dismiss, 4.) The Court agrees with Defendants and finds that the Heck case serves as a bar to Plaintiff's Section 1983 claims.
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
Heck, 512 U.S. at 486-87 (footnotes omitted). The Supreme Court further explained its holding as resting on the "`principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.'" Wilkinson, 125 S. Ct. at 1246 (quoting Heck, 512 U.S. at 486). The Supreme Court continued "that where establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction," a § 1983 action will not lie `unless . . . the conviction or sentence has already been invalidated.'" Id. at 1247 (quoting Heck, 512 U.S. at 481-82, 487) (citations omitted).
The United States Supreme Court seems to have been concerned that a plaintiff will use a Section 1983 action as a means to gain a speedier release from prison, rather than merely for the monetary damages sought by a Section 1983 claim. As the Sixth Circuit explained, "a finding of a constitutional violation in a civil suit could be given preclusive effect in a later habeas corpus proceeding, [so] prisoners could use § 1983 as an `end run' around the carefully-crafted exhaustion requirements of habeas." Schilling v. White, 58 F.3d 1081, 1083 (6th Cir. 1995). The Sixth Circuit also explained that "[i]f civil claims were allowed while criminal cases were pending, `there would be a potential for inconsistent determinations in the civil and criminal cases and the criminal defendant would be able to collaterally attack the prosecution in a civil suit.'" Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (quoting Smith v. Holtz, 87 F.3d 108, 113 (3rd Cir. 1996)).
While the Supreme Court may have been concerned about state prisoners using Section 1983 as a means to more quickly get out of prison, the Sixth Circuit has interpreted Heck's holding to not be solely limited to plaintiffs who are currently in prison. The Sixth Circuit has stated: "In fact, Heck applies as much to prisoners in custody (a habeas prerequisite) as to persons no longer incarcerated." Schilling, 58 F.3d at 1086. The Sixth Circuit explains that in Heck, the Supreme Court did not merely rest its analysis on preserving habeas corpus as the remedy to obtain a release from prison, but that it also "examined the common law of tort liability and concluded that proof of the illegality of a conviction is a necessary element of the § 1983 cause of action." Id. The Sixth Circuit continued, observing that "[u]nless that conviction has been reversed, there has been no injury of constitutional proportions, and thus no § 1983 suit may exist." Id. Thus, the Heck case as a bar to any Section 1983 case that implicates the validity of a conviction, when that conviction has not been successfully challenged.
Here, Plaintiff's conviction has not been reversed, set aside or expunged. In fact, Plaintiff states nowhere in his pleadings that he has successfully challenged his conviction. Plaintiff only gives one hint of such an effort to do so, when he states that he "is currently seeking to have the nolo contendre [sic] plea set aside." (Pl.'s Resp. ¶ 6.) Although Plaintiff does not provide further details about this effort, his statement serves to inform the Court that Plaintiff has not yet successfully challenged his conviction. As previously explained, Heck stands for the principle that a plaintiff "cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence."Wilkinson, 125 S.Ct. at 1248. Here, Plaintiff's conviction has not been previously invalidated.
Further, the Plaintiff seems to be using his Section 1983 action as a stepping stone to challenge his conviction. Plaintiff claims that he was "pressured" into entering his plea to the conviction because of the "constitutional, intentional and grossly negligent acts of Defendants" and his "false confession." (Pl.'s Resp. ¶¶ 4-5.) He states that "his claims from the incident are allowing his conviction." (Id. at ¶ 6.) His Section 1983 claim surely seems to be a challenge to the conviction itself, as it follows that a successful Section 1983 action would implicate the validity of his conviction. Judge Gerald Rosen of our Court has held that "the Sixth Circuit has recognized, in an unpublished opinion, that a challenge to a criminal investigation that leads to a conviction necessarily challenges the validity of the conviction, and thus falls within the rulings in Heck. Bell v. Raby, No. 99-72917, 2000 WL 356354, at *7 (E.D. Mich. Feb. 28, 2000) (Rosen, J.) In the case at hand, Plaintiff is challenging the conduct of the Defendants in their criminal investigation of the murder of Plaintiff's mother. Plaintiff asserts that such conduct and investigation lead to his conviction. Thus, Plaintiff's Section 1983 action falls within the confines of Heck, which therefore serves as a bar to Plaintiff's action because Plaintiff has not successfully challenged his conviction.
IT IS ORDERED that Defendants' Motion to Dismiss is granted.
IT IS FURTHER ORDERED that Plaintiff's Section 1983 claims (Counts 4, 5, and 6 of Plaintiff's Complaint) are dismissed without prejudice.
IT IS FURTHER ORDERED that Plaintiff's state-law claims are also dismissed without prejudice, as the Court has dismissed Plaintiff's constitutional claims and will consequently not exercise jurisdiction over Plaintiff's state-law tort claims.