Appellees who sought to become candidates for local office in the Texas Democratic primary election challenged in the District Court the validity of the Texas statutory scheme which, without write-in or other alternative provisions, requires payment of fees ranging as high as $8,900. Appellees claimed that they were unable to pay the required fees and were therefore barred from running. Under the Texas statute, the party committee estimates the total cost of the primary and apportions it among candidates according to its judgment of what is 'just and equitable,' in light of 'the importance, emolument, and term of office.' The fees for local candidates tend appreciably to exceed those for statewide candidates. Following a hearing, the District Court declared the fee system invalid and enjoined its enforcement. Appellants contend that the filing fees are necessary both to regulate the primary ballot and to finance elections. Held: The Texas primary election filing-fee system contravenes the Equal Protection Clause of the Fourteenth Amendment. Pp. 140149.
(a) Since the Texas statute imposes filing fees of such magnitude that numerous qualified candidates are precluded from filing, it therefore falls with unequal weight on candidates and voters according to their ability to pay the fees, it must be 'closely scrutinized' and can be sustained only if it is reasonably necessary to accomplish a legitimate state objective and not merely because it has some rational basis. Pp. 140144.
(b) Although a State has an interest in regulating the number of candidates on the ballot and eliminating those who are spurious, it cannot attain these objectives by arbitrary means such as those called for by the Texas statute, which eliminates legitimate potential candidates, like those involved here, who cannot afford the filing fees. Pp. 144147.
(c) The apportionment of costs among candidates is not the only means available to finance primary elections, and the State can identify certain bodies as political parties entitled to sponsorship if the State itself finances the primaries, as it does general elections, both of which are important parts of the democratic process. Pp. 147149.
Carter v. Dies, D.C., 321 F.Supp. 1358, affirmed.
John F. Morehead, Plainview, Tex., and Pat Bailey, Austin, Tex., for appellants.
A. L. Crouch, Fort Worth, Tex., and Joseph A. Calamia, El Paso, Tex., for appellees.
Under Texas law, a candidate must pay a filing fee as a condition to having his name placed on the ballot in a primary election. 1 The constitutionality of the Texas filing-fee system is the subject of this appeal from the judgment of a three-judge District Court.
After being denied places on the Democratic primary ballots in their respective counties, these appellees instituted separate actions in the District Court challenging the validity of the Texas filing-fee system. Their actions were consolidated, and a three-judge District Court was convened pursuant to 28 U.S.C. 2281 and 2284. Appellee Jenkins was permitted to intervene as a voter on his claimed desire to vote for Wischkaemper, and appellee Guzman and others were permitted to intervene as voters desiring to cast their ballots for Pate. On April 3, 1970, the District Court ordered that Wischkaemper and Pate be permitted to participate in the primary conducted on May 2, 1970, without prepayment of filing fees. 3 Following a hearing on the merits, the three-judge court declared the Texas filing-fee scheme unconstitutional and enjoined its enforcement. 4 321 F.Supp. 1358 (N.D.Tex.1970). A direct appeal was taken under 28 U.S.C. 1253, and we noted probable jurisdiction. Dies v. Carter, 403 U.S. 904, 91 S.Ct. 2208, 29 L.Ed.2d 679.
Under the Texas statute, payment of the filing fee is an absolute prerequisite to a candidate's participation in a primary election. There is no alternative procedure by which a potential candidate who is unable to pay the fee can get on the primary ballot by way of petitioning voters, 5 and write-in votes are not permitted in primary elections for public office. 6 Any person who is willing and able to pay the filing fee and who meets the basic eligibility requirements for holding the office sought can run in a primary.
The threshold question to be resolved is whether the filing-fee system should be sustained if it can be shown to have some rational basis, 18 or whether it must withstand a more rigid stancard of review.
In Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court held that Virginia's imposition of an annual poll tax not exceeding $1.50 on residents over the age of 21 was a denial of equal protection. Subjecting the Virginia poll tax to close scrutiny, the Court concluded that the placing of even a minimal price on the exercise of the right to vote constituted an invidious discrimination. The problem presented by candidate filing fees is not the same, of course, and we must determine whether the strict standard of review of the Harper case should be applied.
The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. 19 However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). Texas does not place a condition on the exercise of the right to vote, 20 nor does it quantitatively dilute votes that have been cast. 21 Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971)With Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.
Unlike a filing-fee requirement that most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system gives it a patently exclusionary character. Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support. The effect of this exclusionary mechanism on voters is neither incidental nor remote. Not only are voters substantially limited in their choice of candidates, but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system. To the extent that the system requires candidates to rely on contributions from voters in order to pay the assessments, a phenomenon that can hardly be rate in light of the size of the fees, it tends to deny some voters the opportunity to vote for a candidate of their choosing; at the some time it gives the affluent the power to place on the ballot their own names or the names of persons they favor. Appellants do not dispute that this is endemic to the system. This disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause, and there are doubtless some instances of candidates representing the views of voters of modest means who are able to pay the required fee. But we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.
Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be 'closely scrutinized' and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.
Appellants contend that the filing fees required by the challenged statutes are necessary both to regulate the ballot in primary elections and to provide a means for financing such elections.
The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976; Williams v. Rhodes, 393 U.S., at 32, 89 S.Ct. 5, 21 L.Ed.2d 24. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections. 22 Although we have no way of gauging the number of candidates who might enter primaries in Texas if access to the ballot were unimpeded by the large filing fees in question here, we are bound to respect the legitimate objectives of the State in avoiding overcrowded ballots. Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies. Jenness v. Fortson, 403 U.S., at 442, 91 S.Ct., at 1976.
There is no escape from the conclusion that the imposition of filing fees ranging as high as $8,900 tends to limit the number of candidates entering the primaries. However, even under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1350, 1 L.Ed.2d 1485 (1957); Smith v. Cahoon, 283 U.S. 553, 567, 51 S.Ct. 582, 587, 75 L.Ed. 1264 (1931). To say that the filing-fee requirement tends to limit the ballot to the more serious candidates is not enough. There may well be some rational relationship between a candidate's willingness to pay a filing fee and the seriousness with which he takes his candidacy, 23 but the candidates in this case affirmatively alleged that they were unable, not simply unwilling, to pay the assessed fees, and there was no contrary evidence. It is uncontested that the filing fees exclude legitimate as well as frivolous candidates. And even assuming that every person paying the large fees required by Texas law takes his own candidacy seriously, that does not make him a 'serious candidate' in the popular sense. If the Texas fee requirement is intended to regulate the ballot by weeding out spurious candidates, it is extraordinarily ill-fitted to that goal; 24 other means to protect those valid interests are available.
Instead of arguing for the reasonableness of the exclusion of some candidates, appellants rely on the fact that the filing-fee requirement is applicable only to party primaries, and point out that a candidate can gain a place on the ballot in the general election without payment of fees by submitting a proper application accompanied by a voter petition. 25 Apart from the fact that the primary election may be more crucial than the general election in certain parts of Texas, 26 we can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations in order to avoid the burdens of the filing fees imposed by state law. Appellants have not demonstrated that their present filing-fee scheme is a necessary or reasonable tool for regulating the ballot.
In addition to the State's purported interest in regulating the ballot, the filing fees serve to relieve the State treasury of the cost of conducting the primary elections, and this is a legitimate state objective; in this limited sense it cannot be said that the fee system lacks a rational basis. 27 But under the standard of review we consider applicable to this case, there must be a showing of necessity. Appellants strenuously urge that apportioning the cost among the candidates is the only feasible means for financing the primaries. They argue that if the State must finance the primaries, it will have to determine which political bodies are 'parties' so as to be entitled to state sponsorship for their nominating process, and that this will result in new claims of discrimination. Appellants seem to overlook the fact that a similar distinction is presently embodied in Texas law since only those political parties whose gubernatorial candidate received 200,000 or more votes in the last preceding general election are required to conduct primary elections. 28 Moreover, the Court has recently upheld the validity of a state law distinguishing between political parties on the basis of success in prior election. Jenness v. Fortson, supra. We are not persuaded that Texas would be faced with an impossible task in distinguishing between political parties for the purpose of financing primaries.
We also reject the theory that since the candidates are availing themselves of the primary machinery, it is appropriate that they pay that share of the cost that they have occasioned. The force of this argument is diluted by the fact that candidates for offices requiring statewide primaries are generally assessed at a lower rate than candidates for local office, although the statewide primaries undoubtedly involve a greater expense. 29 More importantly, the costs do not arise because candidates decide to enter a primary or because the parties decide to conduct one, but because the State has, as a matter of legislative choice, directed that party primaries be held. The Stae has presumably chosen this course more to benefit the voters than the candidates.
Appellants seem to place reliance on the self-evident fact that if the State must assume the cost, the voters, as taxpayers, will ultimately be burdened with the expense of the primaries. But it it far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process. It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern. Without making light of the State's interest in husbanding its revenues, we fail to see such an element of necessity in the State's present means of financing primaries as to justify the resulting incursion on the prerogatives of voters.
Since the State has failed to establish the requisite justification for this filing-fee system, we hold that it results in a denial of equal protection of the laws. It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts. By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice. These salient features of the Texas system are critical to our determination of constitutional invalidity.
Carter also failed to have his application notarized and to have it accompanied by a statutory loyalty affidavit. Since appellees Pate and Wischkaemper were in all respects eligible to be candidates in the primary except for their failure to pay the filing fees, Carter's participation in this appeal is superfluous and we need not decide whether the additional defects in his application deprive him of standing to attack the constitutionality of the filing-fee system.
The order provided that their ultimate liability for the fees would depend on the outcome of this action. Preliminary relief was not granted to Carter because of his noncompliance with requisites for candidacy unrelated to the challenged filing fees. See n. 2, supra.
The specific provisions held unconstitutional are those listed in n. 1, supra.
Texas law does permit the names of independent candidates to appear on the official ballot in the general election if a proper application containing a voter petition is submitted. The number of eigible voters required to sign the petition varies from 1% to 5% depending on the office sought. For district, county, and precinct offices, candidates must obtain the signatures of 5% of the eligible voters with a ceiling of 500 signatures. No person may sign the application of more than one person for the same office, and no person who has voted in a primary may sign the application of a candidate for an office for which a nomination was made at such primary. Art. 13.50, Tex.Election Code Ann. (1967).
No fees are assessed against candidates in general elections.
Art. 13.09(b), Tex.Election Code Ann. (Supp.19701971). Write-in votes are permitted for the party offices of county chairman and precinct chairman in the general primary but not in the run-off primary. Ibid.
Former Art. 13.08c (repealed, Acts 1967, 60th Leg., p. 1932, c. 723, § 77) permitted write-in votes in primary elections and provided that if a write-in candidate in the first primary either received a majority of the votes or was one of the two highest vote getters in a race in which no candidate received a majority of the votes, he could not be the party's nominee in the general election or participate in the run-off primary, unless and until he paid the filing fee he would have been assessed had he originally sought a place on the primary ballot.
Art. 13.08, Tex.Election Code Ann. (Supp.19701971).
Art. 13.08a, Tex.Election Code Ann. (Supp.19701971). This provision is applicable to Members of Congress.
The $6,300 fee required of appellee Wischkaemper, for example, amounts to 32% of the $19,700 annual salary for County Judge in Tarrant County. Similarly, in the May 2, 1970, Democratic primary, candidates for five county offices in Ward County were assessed $6,250 for a filing fee; this fee represented 76.6% of the $8,160 annual salary for four of these offices; for the fifth office, that of County Commissioner, it represented 99.7% of the annual salary of $6,270.
Assessments in excess of $1,000 appear to be common in many Texas counties, and assessments exceeding $5,000 are typical for certain offices in several counties. Filing fees for judgeships seem to run particularly high. Persons seeking to run in the May 2, 1970, Democratic primary for the office of District Judge in Tarrant County were required to pay $8,900 in order to have their names appear on the ballot.
It should be noted, however, that amounts not needed to finance the primary are refunded to the candidates, and that in some counties refunds tend to run as high as 50% or more of the assessed filing fee.
It is not clear from the face of the statute why candidates from counties having populations between 650,000 and 900,000 must pay more than candidates from counties of larger sizes.
An additional provision requires that candidates for State Representative from districts encompassing either eight or nine counties must pay $25 per county as a filing fee. Art. 13.08a, Tex.Election Code Ann. (Supp.19701971).
Persons seeking nomination in a senatorial district constituting exactly two counties must pay a filing fee of $200.
Art. 13.15, Tex.Election Code Ann. (Supp.19701971). Candidates for Justice of the Court of Civil Appeals are also required to pay their filing fees to the chairman of the state committee, at the rate of 5% of one year's salary. Ibid.
Art. 13.08(4), Tex.Election Code Ann. (Supp.19701971).
Appellants ask the Court to reconsider the scope of Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed 987 (1944), in which the Court held that the action of the Democratic Party of Texas in excluding Negroes from participation in party primaries constituted 'state action.' See also Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); cf. Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932). Appellants contend that not every aspect of a party primary election must be considered 'state action' cognizable under the Fourteenth Amendment. But we are here concerned with the constitutionality of a state law rather than action by a political party and thus have no occasion to consider the scope of the holding in Smith v. Allwright, supra.
The Act provides that it is to go into effect only if '(1) the Supreme Court of the United States does not dispose of the appeal (in this case) . . . before January 1, 1972; or (2) the Supreme Court of the United States affirms or refuses to review the judgment of the district court in the aforesaid case . . .' (§ 7(b)). The Act expires of its own force on December 31, 1972, at which time the prior law goes back into effect.
Although the Act has gone into effect due to the absence of decision by the Court on this appeal before January 1, 1972, the change in the law does not render this case moot. The effect of the 'contingent, temporary law' enacted by the Texas Legislature is to suspend enforcement of the strict filing-fee requirement during calendar year 1972. Since enforcement of the filing-fee requirement under the prior law was permanently enjoined by the court below, that injunction would continue to have force and effect after December 31, 1972. Furthermore, there is a continuing controversy with respect to appellees' obligation to pay the filing fees for participation in the Democratic primary held on May 2, 1970. The order of the District Court allowing appellees Pate and Wischkaemper to run in the primary without payment of fees stated that they would be liable for the fees if they did not ultimately prevail in this action. See n. 3, supra.
We take note of the fact that in Johnston v. Luna, 338 F.Supp. 355 (ND Tex.1972), the same three-judge court that issued the injunction appealed from in this case declared the new law unconstitutional and enjoined its enforcement. Our attention is confined to the case before us, and we intimate no view on the merits of that controversy.
See Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 425426, 81 S.Ct. 1101, 11041105, 6 L.Ed.2d 393 (1961).
Cf. Turner v. Fouche, 396 U.S. 346. 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970); Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed 497 (1944).
See Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
See Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
The Texas Election Code provides that no person shall be nominated at a primary election for any office unless he receives a majority of the votes cast. In the event that no candidate receives a majority, a runoff election is held between the two candidates receiving the highest number of votes. Arts. 13.03, 13.07, Tex.Election Code Ann. (1967).
Cf. Harper v. Virginia Board of Elections, 383 U.S., at 684685, 86 S.Ct., at 1091, (Harlan, J., dissenting).
Cf. Turner v. Fouche, 396 U.S., at 364, 90 S.Ct., at 542.
Appellants stae that Texas requires only the signatures of 1% of the eligible voters. Although this is true for offices voted for statewide, the candidates for local offices in this case would have had to obtain the signatures of 5% of the eligible voters up to a maximum of 500 signatures. Moreover, only those persons not voting in the primary would have been eligible to sign a nominating petition. See n. 5, supra.
See Carter v. Dies, 321 F.Supp. 1358, 1363 (N.D.Tex.1970) (Thornberry, J., concurring).
Cf. Harper v. Virginia Board of Elections, 383 U.S., at 674, 86 S.Ct., at 1085 (Black, J., dissenting).
Art. 13.02, Tex.Election Code Ann. (1967).
This would be a different case if the fees approximated the cost of processing a candidate's application for a place on the ballot, a cost resulting from the candidate's decision to enter a primary. The term filing fee has long been thought to cover the cost of filing, that is, the cost of placing a particular document on the public record.


text:
Judge Greg N. Stivers referred this matter to Magistrate Judge Lanny King for resolution of all discovery issues. (Docket # 11).
Defendant, the United States of America (the “United States”), filed a Motion for Leave to File Contribution Claim against Co-Defendant, the Estate of Frank Rosario (“Rosario”). (Docket # 33). Rosario filed his Response (Docket # 35) and the United States filed its Reply (Docket # 36). This Motion is now ripe for adjudication. For reasons detailed below, the United States' Motion is GRANTED.
Background This case arises from a boating accident that occurred on August 21, 2015, on the Ohio River in McCracken County, Kentucky. After dark that evening, Rosario operated his boat down the river and over Dam 52. The boat capsized and drowned Rosario and three of his passengers. On August 17, 2016, the administrators of the estates of the three drowned passengers filed suit against Rosario and the United States. (Docket # 1). Both defendants filed Answers to the Complaint. (Dockets # 8, 10). Rosario asserted a crossclaim against the United States. (Docket # 10). At that time, the United States did not assert any crossclaims against Rosario. (Docket # 8).
On March 21, 2017, this Court entered a scheduling Order, which provided, among other things, that all amendments to the pleadings must be filed by July 1, 2017. (Docket # 18). Following a settlement conference held on October 17, 2017, the United States reached a settlement with the Plaintiffs. (Dockets # 28, 29). On December 4, 2017, Judge Stivers entered an Agreed Order of Partial Dismissal, and dismissed, with prejudice, the Plaintiffs' causes of action against both Rosario and the United States. (Docket # 32).
On February 20, 2018, the United States filed the present Motion for Leave to File Contribution Claim against Rosario. (Docket # 33). The United States requests this Court to allow it to file its contribution claim now that the Plaintiffs' claims were dismissed with prejudice against both the United States and Rosario.
Under Federal Rule of Civil Procedure 13(e), the Court may “permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.” Fed.R.Civ.P. 13(e). The standard applicable to amendments under Rule 15 is used to determine whether leave to file a counterclaim under Rule 13(e) should be permitted. Hi-Lex Controls Inc. v. Blue Cross and Blue Shield of Mich., 11-12557, 2013 WL 228097, at *1 (E.D. Mich. Jan. 22, 2013) (citing Kuschner v. Nationwide Credit, Inc., 256 F.R.D. 684, 689 (E.D. Cal. 2009); see also Magnesystems, Inc. v. Nikken, Inc., 933 F.Supp. 944, 947 (C.D. Cal. 1996) (“Courts have considered Federal Rule 13 in conjunction with Federal Rule 15, applying factors to consider for leave to amend to counterclaims.”)).
Federal Rule of Civil Procedure 15 (a) provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a). Rule 15 reinforces the principle that cases should be tried on their merits rather than the technicalities of pleadings, and therefore assumes a liberal policy of permitting amendments. Inge v. Rock Financial Corp., 388 F.3d 930, 937 (6th Cir. 2004) (citations omitted) (internal quotation marks omitted). The Sixth Circuit has identified several factors that may support the denial of a motion to amend: undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment. ABCCO, L.L.C. v. Mich. Reg'l Council of Carpenters Fringe Benefit Funds, 10-14303, 2011 WL 13221052, at *2 (E.D. Mich. Apr. 26, 2011) (citing Wade v. Knoxville Utilities Bd., 259 F.3d 452, 458-59 (6th Cir. 2001)). Delay alone, regardless of its length, is not enough to bar the amendment if the other party is not prejudiced. Id.
In this case, none of the above factors are present to support a denial of the United States' Motion. The United States' claim for contribution arises from the same transaction or occurrence as the claim(s) alleged in the Plaintiffs' case in chief. Additionally, the claim for contribution did not accrue until after the United States settled with all of the Plaintiffs and when the Plaintiffs were dismissed from the case with prejudice. See Leonard v. Dorsey & Whitney Ltd. Liab. P'ship, 553 F.3d 609, 611 (8th Cir. 2009). Further, there was no undue delay in the United States' request. After the United States settled with all of the Plaintiffs in December 2017, the United States attempted to reach a settlement with Rosario and informed Rosario that it may pursue a contribution claim.
Rosario contends that if the United States is permitted to pursue its contribution claim against the estate of Rosario, it will, at best, end up with an uncollectible judgment. Rosario asserts that he had no liability insurance applicable to the accident, he owned no real property, and his personal property consisted of a nine-year old Chevrolet van and his personal effects. However, at this stage, the futility analysis is whether the United States has a cognizable contribution claim against Rosario rather than whether the claim for contribution is ultimately recoverable.
A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss. Moore v. Hopkins Cty., Ky., Civil Action No. 4:17cv-00039-JHM, 2017 U.S. Dist. LEXIS 113008, at *8 (W.D. Ky. July 19, 2017). Under admiralty law, non-settling defendants (i.e. the United States) retain their right of proportionate contribution, which they may exercise against other non-settling defendants. Becker v. Crounse Corp., 822 F.Supp. 386, 395 (W.D. Ky. 1993). Both wrongful death and survival actions are available under admiralty law. See Billingsley v. Alberici Constructors, Inc., 5:13-CV-00084-TBR, 2014 WL 1248019 (W.D. Ky. Mar. 25, 2014); Anderson v. Whittaker Corp., 692 F.Supp. 764, 773 (W.D. Mich. 1988), aff'd in relevant part by 894 F.2d 804 (6th Cir. 1990). The United States has met its burden in showing that its contribution claim would not be futile.
Rosario argues that the addition of a contribution claim multiplies the issues that are left to be resolved. Rosario asserts that if the United States is permitted to assert a contribution claim against Rosario, evidence will have to be submitted to the Court as to the damages in each of the five claims asserted by the Plaintiffs, and there will have to be an apportionment of fault between the United States and Rosario as to each of those claims. Rosario fails to cite any case in which the court found that a contribution claim would be disallowed because it complicated a case. Additionally, whether a claim will complicate a case is not one of the factors that a court considers when determining whether to allow an amended counterclaim.

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2-1319. State political subdivision land; control and eradication of noxious weeds; failure by political subdivision to control; payment of costs. (a) (1) The cost of controlling and eradicating noxious weeds on all lands or right-of-ways owned or supervised by a state agency, department or commission shall be paid by the state agency, department or commission supervising such lands or right-of-ways from funds appropriated to its use; on county lands and county right-of-ways, on township lands and township right-of-ways, on city lands and right-of-ways by the county, township or city in which such lands and right-of-ways are located, and from funds made available for that purpose; on drainage districts, irrigation districts, cemetery associations and other political subdivisions of the state, the costs shall be paid from their respective funds made available for the purpose.
(2) If the governing body of any political subdivision owning or supervising lands infested with noxious weeds within their jurisdiction fails to control such noxious weeds, the county shall provide 15 days' notice to the political subdivision directing such political subdivision to submit a plan and timeline for controlling such noxious weeds to the board of county commissioners or control such noxious weeds. If the plan and timeline is deemed unacceptable, the board of county commissioners shall notify the political subdivision of requested changes to its plan and timeline required for the board of county commissioners to approve such plan and timeline. If the political subdivision fails to control such noxious weeds or fails to submit an accepted plan and timeline within such 15 days' notice, the board of county commissioners shall proceed to have official methods for the control and eradication used upon such lands, and shall notify the governing body of the political subdivision by certified mail of the costs of such operations, with a demand for payment. The governing body of the political subdivision shall pay such costs from its noxious weed fund, or if no such fund is available, from its general fund or from any other funds available for such purpose. A copy of the statement, together with proof of notification, shall at the same time be filed with the county clerk, and if the amount is not paid within 30 days, such clerk shall spread the amount upon the tax roll of the political subdivision, and such amount shall become a lien against the entire territory located within the particular political subdivision, and shall be collected as other taxes are collected.
(b) All moneys collected pursuant to this section shall be paid into the county noxious weed eradication fund, or if the noxious weed program is funded primarily through the county general fund, such moneys shall be paid into the county general fund. If the noxious weed program is funded from more than one source, all moneys collected pursuant to this section shall be paid into each source in proportion to its contribution to the noxious weed program.
History: L. 1937, ch. 1, § 6; L. 1957, ch. 7, § 5; L. 1976, ch. 6, § 1; L. 1979, ch. 5, § 1; L. 1991, ch. 4, § 1; L. 1999, ch. 154, § 29; L. 2004, ch. 101, § 30; L. 2018, ch. 77, § 11; July 1.


When wearing by persons not on active duty authorized.
Religious apparel: wearing while in uniform.
Issue of uniform without charge.
Wearing of insignia of higher grade before promotion (frocking): authority; restrictions.
Wearing of insignia of higher grade before appointment to a grade above major general or rear admiral (frocking): authority; restrictions.
2011—Pub. L. 111–383, div. A, title V, §505(a)(2), Jan. 7, 2011, 124 Stat. 4210, added item 777a.
1996—Pub. L. 104–106, div. A, title V, §503(a)(2), Feb. 10, 1996, 110 Stat. 294, added item 777.
1992—Pub. L. 102–484, div. A, title III, §377(b), Oct. 23, 1992, 106 Stat. 2387, added item 775 and redesignated former item 775 as 776.
1987—Pub. L. 100–180, div. A, title V, §508(b), Dec. 4, 1987, 101 Stat. 1087, added item 774 and redesignated former item 774 as 775.
1968—Pub. L. 90–235, §8(1)(B), Jan. 2, 1968, 81 Stat. 764, added item 771a.
"(a) DLA Notification.—The Secretary of a military department shall notify the Commander of the Defense Logistics Agency of any plan to implement a change to any uniform or uniform component of a member of the uniformed services. Such notification shall be made not less than three years prior to the implementation of such change.
"(b) Contractor Notification.—The Commander of the Defense Logistics Agency shall notify a contractor when one of the uniformed services plans to make a change to a uniform component that is provided by that contractor. Such a notification shall be made not less than 12 months prior to any announcement of a public solicitation for the manufacture of the new uniform component.
"(c) Waiver.—If the Secretary of a military department or the Commander of the Defense Logistics Agency determines that the notification requirement under subsection (a) would adversely affect operational safety, force protection, or the national security interests of the United States, the Secretary or the Commander may waive such requirement."
"(a) Establishment of Policy.—It is the policy of the United States that the Secretary of Defense shall eliminate the development and fielding of Armed Force-specific combat and camouflage utility uniforms and families of uniforms in order to adopt and field a common combat and camouflage utility uniform or family of uniforms for specific combat environments to be used by all members of the Armed Forces.
"(3) the Secretary of Defense grants an exception based on unique circumstances or operational requirements.
"(6) prohibiting the continued fielding or use of pre-existing service-specific or operation-specific combat uniforms as long as the uniforms continue to meet operational requirements.
"(d) Registration Required.—The Secretary of a military department shall formally register with the Joint Clothing and Textiles Governance Board all uniforms in use by an Armed Force under the jurisdiction of the Secretary and all such uniforms planned for use by such an Armed Force.
"(e) Limitation on Restriction.—The Secretary of a military department may not prevent the Secretary of another military department from authorizing the use of any combat or camouflage utility uniform or family of uniforms.
"(1) In general.—Not later than 60 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense shall issue guidance to implement this section.
"(D) to ensure that all new combat and camouflage utility uniforms and families of uniforms achieve interoperability with all components of individual war fighter systems, including body armor, organizational clothing and individual equipment, and other individual protective systems."
Pub. L. 111–84, div. A, title III, §352, Oct. 28, 2009, 123 Stat. 2262, related to policy on ground combat and camouflage utility uniforms, prior to repeal by Pub. L. 113–66, div. A, title III, §352(g), Dec. 26, 2013, 127 Stat. 743.
The words "Except as otherwise provided by law" are inserted to give effect to exceptions in other revised sections of this title and to provisions of other laws giving such organizations as the Coast and Geodetic Survey and the Public Health Service permission to wear military uniforms under certain conditions.
(a) Except as provided in subsections (b) and (c), when an enlisted member of an armed force is discharged, the exterior articles of uniform in his possession that were issued to him, other than those that he may wear from the place of discharge to his home under section 772(d) of this title, shall be retained for military use.
(3) if he would be otherwise without funds to meet his immediate needs, he may be paid an amount, fixed by the Secretary concerned, of not more than $25.
(c) When an enlisted member of the Army National Guard or the Air National Guard who has been called into Federal service is released from that service, the exterior articles of uniform in his possession shall be accounted for as property issued to the Army National Guard or the Air National Guard, as the case may be, of the State or territory, Puerto Rico, or the District of Columbia of whose Army National Guard or Air National Guard he is a member, as prescribed in section 708 of title 32.
1988—Subsec. (c). Pub. L. 100–456 struck out "the Canal Zone," after "Puerto Rico,".
(g) An officer or resident of a veterans' home administered by the Department of Veterans Affairs may wear such uniform as the Secretary of the military department concerned may prescribe.
(2) Members of any other organization designated by the Secretary of a military department.
10:1393 (words before 1st semicolon of 1st proviso of 1st par.).
10:1393 (15th through 18th words after 1st semicolon of 1st proviso of 1st par.).
34:389 (less 1st and 3d sentences).
10:1393 (words between 3d and 4th semicolons of 1st proviso of 1st par.).
10:1393 (words between 2d and 3d semicolons of 1st proviso of 1st par.).
June 3, 1916, ch. 134, §12 (words before 4th semicolon, and words after 7th semicolon, of 1st proviso of 1st par.; and last proviso of last par.), 39 Stat. 216; July 9, 1918, ch. 143, subch. XVII, §10 (last proviso), 40 Stat. 892; June 4, 1920, ch. 228, §8, 41 Stat. 836; June 6, 1942, ch. 382, 56 Stat. 328; May 24, 1949, ch. 139, §15(b) (last proviso), 63 Stat. 91; July 6, 1953, ch. 180, §1, 67 Stat. 140.
34:399d. R.S. 1256 (1st sentence).
772(f) 10:1393 (words between 8th and 9th semicolons of 1st proviso of 1st par.). R.S. 1457 (less 1st and 3d sentences); May 5, 1950, ch. 169, §14(f), 64 Stat. 147.
10:1393 (last proviso of last par.).
10:1393 (words between 7th and 8th semicolons of 1st proviso of 1st par.).
Apr. 16, 1947, ch. 38, §207(j), 61 Stat. 50; as redesignated (i); Aug. 7, 1947, ch. 512, §434(d), 61 Stat. 882.
10:1393 (words after 9th semicolon of 1st proviso of 1st par.).
10:1393 (words between 1st and 2d semicolons of 1st proviso of 1st par., less 15th through 18th words).
June 21, 1930, ch. 563, §2; restated Aug. 4, 1949, ch. 393, §12, 63 Stat. 559; July 6, 1953, ch. 180, §2, 67 Stat. 140.
In subsections (a), (b), (d), (f), (g), (h), (i), and (j), the rules stated in the corresponding clauses of the first proviso of the first paragraph, and the last proviso of the last paragraph, of 10:1393, are restated to make positive the authority of the persons described in those subsections to wear the uniform prescribed for the appropriate organization or activity.
In subsection (c), the words "bear the title", in 34:43g(i), applicable only to retired officers of the Navy Nurse Corps, are made applicable to other retired officers, to make explicit what has heretofore been implicit, that a retired officer may continue to bear the title of his retired grade.
In subsection (e), the words between the second and third semicolons of the first proviso of the first paragraph of 10:1393 are omitted as superseded by 10:1028b and 34:399d, which authorize the wearing of the uniform by members who are discharged honorably or under honorable conditions. The words "when authorized by regulations prescribed by" are substituted for the words "occasions authorized by regulations of".
In subsection (f), the words "while portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production" are substituted for the words "any person from wearing the uniform of the United States Army, Navy, or Marine Corps, in any playhouse or theater or in moving-picture films while actually engaged in representing therein a military or naval character".
In subsection (g), the word "resident" is substituted for the word "members", since the word "members" related to members of the now disbanded National Home for disabled volunteer soldiers to which were admitted "members" of an organization called the "Disabled Volunteer Soldiers". The words "veterans' home" are substituted for the words "national home for veterans", since there are now no "national homes" administered by the Veterans' Administration.
In subsection (h), the words "authorized and" and "for wear during such course of instruction" are omitted as surplusage. The word "naval" is omitted as covered by the word "military". The words "Army, Navy, Air Force, or Marine Corps" are substituted for the words "military or naval authorities". The words "that armed force" are substituted for the words "such military or naval authorities".
In subsection (i), the words "Air Force school" are substituted for the words "Air Force advanced flying schools or Air Force service schools". The words "in such manner" are omitted as surplusage.
For information regarding constitutionality of certain provisions of this section as enacted by act Aug. 10, 1956, see Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation, Appendix 1, Acts of Congress Held Unconstitutional in Whole or in Part by the Supreme Court of the United States.
1996—Subsec. (h). Pub. L. 104–201 inserted before period at end "if the wear of such uniform is specifically authorized under regulations prescribed by the Secretary of the military department concerned".
1989—Subsec. (g). Pub. L. 101–189 substituted "Department of Veterans Affairs" for "Veterans' Administration".
1985—Subsec. (c). Pub. L. 99–145 struck out provisions relating to a retired officer of the Navy Nurse Corps.
The authority vested in the President (1) by section 125 of the act of June 3, 1916, 39 Stat. 216, as amended by the first section of the act of July 6, 1953, 67 Stat. 140, and (2) by section 2 of the act of June 21, 1930, 46 Stat. 793, as amended by section 2 of said act of July 6, 1953, to prescribe regulations authorizing occasions upon which the uniform may be worn by persons who have served honorably in the armed forces of the United States in time of war is hereby delegated to the Secretary of Defense so far as it pertains to the uniforms of the Army, Navy, Air Force, and Marine Corps, and to the Secretary of Homeland Security so far as it pertains to the uniform of the Coast Guard.
(B) an educational institution having a regular course of military instruction, and having a member of the Army, Navy, Air Force, or Marine Corps as instructor in military science and tactics.
(2) The uniform prescribed by a military society composed of persons discharged honorably or under honorable conditions from the Army, Navy, Air Force, or Marine Corps to be worn by a member of that society when authorized by regulations prescribed by the President.
(b) A uniform prescribed under subsection (a) may not include insignia of grade the same as, or similar to, those prescribed for officers of the Army, Navy, Air Force, or Marine Corps.
(c) Under such regulations as the Secretary of the military department concerned may prescribe, any person who is permitted to attend a course of instruction prescribed for members of a reserve officers' training corps, and who is not a member of that corps, may, while attending that course of instruction, wear the uniform of that corps.
10:1393 (words between 4th and 7th semicolons of 1st proviso, and 2d proviso, of 1st par.).
10:1393 (last proviso of 1st par.).
June 3, 1916, ch. 134, §125 (words between 4th and 7th semicolons of 1st proviso, and 2d and last provisos, of 1st par.), 39 Stat. 216; June 4, 1920, ch. 228, §8, 41 Stat. 836; Sept. 15, 1951, ch. 402, 65 Stat. 323; July 6, 1953, ch. 180, §1, 67 Stat. 140.
In subsection (a), the word "mark" is omitted as surplusage.
In subsection (a)(2), the words "persons discharged honorably or under honorable conditions from" are substituted for the words "entirely of honorably discharged officers or enlisted men, or both, of". The words "Regular or Volunteer" are omitted as surplusage. The words "when authorized by regulations prescribed by" are substituted for the words "upon occasions authorized by regulations of".
1958—Subsec. (c). Pub. L. 85–355 added subsec. (c).
(a) General Rule.—Except as provided under subsection (b), a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member's armed force.
(2) if the Secretary determines, under regulations under subsection (c), that the item of apparel is not neat and conservative.
(c) Regulations.—The Secretary concerned shall prescribe regulations concerning the wearing of religious apparel by members of the armed forces under the Secretary's jurisdiction while the members are wearing the uniform. Such regulations shall be consistent with subsections (a) and (b).
(d) Religious Apparel Defined.—In this section, the term "religious apparel" means apparel the wearing of which is part of the observance of the religious faith practiced by the member.
A prior section 774 was renumbered section 776 of this title.
Pub. L. 100–180, div. A, title V, §508(c), Dec. 4, 1987, 101 Stat. 1087, directed the Secretary concerned to prescribe the regulations required by subsec. (c) of this section not later than the end of the 120-day period beginning on Dec. 4, 1987.
(1) A member who is being repatriated after being held as a prisoner of war.
(2) A member who is being treated at or released from a medical treatment facility as a consequence of being wounded or injured during military hostilities.
(3) A member who, as a result of the member's duties, has unique uniform requirements.
(4) Any other member, if the Secretary concerned determines, under exceptional circumstances, that the issue of the uniform to that member would significantly benefit the morale and welfare of the member and be advantageous to the armed force concerned.
(b) Retention of Uniform as a Personal Item.—Notwithstanding section 771a of this title, a uniform issued to a member under this section may be retained by the member as a personal item.
A prior section 775 was renumbered section 776 of this title.
(3) all other places under the jurisdiction of the United States.
774 10:1393 (less 1st and last pars.). June 3, 1916, ch. 134, §125 (less 1st and last pars.), 39 Stat. 216; Apr. 15, 1948, ch. 188, 62 Stat. 172; June 25, 1948, ch. 645, §21 (as applicable to §125 of the Act of June 3, 1916, ch. 134), 62 Stat. 864; May 24, 1949, ch. 139, §§15(b) (less last par.), 142 (as applicable to the Act of Apr. 15, 1948, ch. 188), 63 Stat. 91, 110.
The words "the Canal Zone, Guam, American Samoa, and the Virgin Islands as well as to * * * other" are omitted as covered by the words "possessions, and all other places under its jurisdiction".
1992—Pub. L. 102–484 renumbered section 775 of this title as this section.
1987—Pub. L. 100–180 renumbered section 774 of this title as this section.
Pub. L. 100–26 amended directory language of Pub. L. 99–661. See 1986 Amendment note below.
1986—Pub. L. 99–661, as amended by Pub. L. 100–26, amended section generally. Prior to amendment, section read as follows: "This chapter applies in the United States, the Territories, Commonwealths, and possessions, and all other places under its jurisdiction."
Pub. L. 100–26, §12(a), Apr. 21, 1987, 101 Stat. 289, provided that: "The amendments made by section 3 [amending this section and sections 1032, 1408, 1450, 1588, 2007, 2364, and 5150 of this title, and section 4703 of Title 20, Education, and amending provisions set out as a note under section 1006 of Title 37, Pay and Allowances of the Uniformed Services] shall apply as if included in Public Law 99–661 when enacted on November 14, 1986."
(a) Authority.—An officer in a grade below the grade of major general or, in the case of the Navy, rear admiral, who has been selected for promotion to the next higher grade may be authorized, under regulations and policies of the Department of Defense and subject to subsection (b), to wear the insignia for that next higher grade. An officer who is so authorized to wear the insignia of the next higher grade is said to be "frocked" to that grade.
(B) the Secretary of Defense has submitted to Congress a written notification of the intent to authorize the officer to wear the insignia for that grade.
(B) assume any legal authority associated with that grade.
(A) Seniority in that grade.
(B) Time of service in that grade.
(d) Limitation on Number of Officers Frocked to Specified Grades.—(1) The total number of colonels, Navy captains, brigadier generals, and rear admirals (lower half) on the active-duty list who are authorized as described in subsection (a) to wear the insignia for the next higher grade may not exceed 85.
(2) The number of officers of an armed force on the active-duty list who are authorized as described in subsection (a) to wear the insignia for a grade to which a limitation on total number applies under section 523(a) of this title for a fiscal year may not exceed 1 percent, or, for the grades of colonel and Navy captain, 2 percent, of the total number provided for the officers in that grade in that armed force in the administration of the limitation under that section for that fiscal year.
2011—Subsec. (b)(3)(B). Pub. L. 111–383 struck out "and a period of 30 days has elapsed after the date of the notification" after "grade".
2006—Subsec. (a). Pub. L. 109–163, §503(c), inserted "in a grade below the grade of major general or, in the case of the Navy, rear admiral," after "An officer" in first sentence.
Subsec. (d)(1). Pub. L. 109–163, §504(1), substituted "colonels, Navy captains, brigadier generals, and rear admirals (lower half)" for "brigadier generals and Navy rear admirals (lower half)" and "the next higher grade may not exceed 85" for "the grade of major general or rear admiral, as the case may be, may not exceed 30".
Subsec. (d)(2), (3). Pub. L. 109–163, §504(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "The total number of colonels and Navy captains on the active-duty list who are authorized as described in subsection (a) to wear the insignia for the grade of brigadier general or rear admiral (lower half), as the case may be, may not exceed 55."
2004—Subsec. (d). Pub. L. 108–375 added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.
2003—Subsec. (b)(3). Pub. L. 108–136 added par. (3).
"(A) During fiscal years 1996 and 1997, 75.
"(B) During fiscal year 1998, 55.
"(C) After fiscal year 1998, 35."
1997—Subsec. (d)(2). Pub. L. 105–85 inserted ", or, for the grades of colonel and Navy captain, 2 percent," after "1 percent".
Pub. L. 108–136, div. A, title V, §509(b), Nov. 24, 2003, 117 Stat. 1459, provided that: "Paragraph (3) of subsection (b) of section 777 of title 10, United States Code, as added by subsection (a), shall not apply with respect to the wearing by an officer of insignia for a grade that was authorized under that section before the date of the enactment of this Act [Nov. 24, 2003]."
Pub. L. 104–106, div. A, title V, §503(b), Feb. 10, 1996, 110 Stat. 294, provided that in the administration of former subsec. (d)(2) of this section, the percent limitation applied under that section for fiscal year 1996 would be 2 percent, rather than 1 percent.
(a) Authority.—An officer serving in a grade below the grade of lieutenant general or, in the case of the Navy, vice admiral, who has been selected for appointment to the grade of lieutenant general or general, or, in the case of the Navy, vice admiral or admiral, and an officer serving in the grade of lieutenant general or vice admiral who has been selected for appointment to the grade of general or admiral, may be authorized, under regulations and policies of the Department of Defense and subject to subsection (b), to wear the insignia for that higher grade for a period of up to 14 days before assuming the duties of a position for which the higher grade is authorized. An officer who is so authorized to wear the insignia of a higher grade is said to be "frocked" to that grade.
(4) the Secretary of Defense has submitted to Congress a written notification of the intent to authorize the officer to wear the insignia for that grade.
(d) Limitation on Number of Officers Frocked.—The total number of officers who are authorized to wear the insignia for a higher grade under this section shall count against the limitation in section 777(d) of this title on the total number of officers authorized to wear the insignia of a higher grade.


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Last week, the Supreme Court considered (yet again) whether there should be any constitutional remedy for outrageous and blatant partisan gerrymanders—specifically the Republican gerrymander in North Carolina and the Democrat gerrymander in Maryland. The two cases, Rucho v. Common Cause and Lamone v. Benisek, were heard back to back over a total of 2 hours and 11 minutes.
The central question at oral argument in both cases was not whether partisan gerrymandering was good or bad—everyone knows it is bad—the question was whether there is anything the Court can and should do about it. Most people think this a bit like asking whether there is anything the fire department should do when an arsonist is pouring gasoline on a schoolhouse. But to be fair to the justices disinclined to act, there are some thorny conceptual questions to address before the Court can take action against the politicians and mapmakers currently setting fire to our democracy.
The ability of politicians to choose their voters, rather than vice versa, is dramatically increasing. In 2016, only 40 of the 435 seats in the House were competitive, compared to 100 in 2010, when gerrymandering was already a problem. After the 2010 census, the problem of partisan gerrymandering intensified dramatically due of a perfect storm of increased computer power, better statistical models, and more granular and more reliable data on individual voters. If the Supreme Court fails to act in Rucho and Lamone, the number of competitive seats could drop even lower and our votes will mean less and less.
Not only do partisan gerrymanders reduce accountability in individual districts, they often lead to counter-majoritarian results state-wide. In the last election, Wisconsin Democrats received 205,000 more votes than Republicans, but won only 36 of the 99 available seats in the gerrymandered State Assembly. In another gerrymandered race in 2018, Ohio Democrats got nearly 50% of the vote but only a quarter of congressional seats. North Carolina is a virtually evenly divided “purple” state. Yet in 2018, where Democratic candidates won every statewide election on the ballot, Republicans won the 10 of 13 districts—just as their map makers promised them.
In Rucho v. Common Cause, Paul Clement tried to persuade the Court that there was no room for the Court to assess even such an extreme disregard for representing the will of voters. But as Justice Sotomayor crisply explained in the very first question of the day: “Mr. Clement, that ship has sailed in Baker v. Carr.” If racial gerrymanders and the unequal weighting of votes (the issue in the 1962 case of Baker v. Carr) are justiciable, it makes no sense to say that partisan gerrymandering is inherently non-justiciable.
Maryland’s 3rd Congressional district. Without the possibility of judicial review, there is no reason politicians will have to follow even the most basic intuitive criteria, such as contiguity. Non-justiciability amounts to a free-for-all.
Politicians around the country will use all the information in their voter files and all the tricks of big data to ensure that the will of the people is irrelevant to determining who represents them. As well as the 10:3 split in North Carolina, we should expect to see a 18:0 split in Illinois if the Court holds that partisan gerrymandering in non-justiciable—anyone who thinks Mike Madigan will care about traditional districting criteria (other than the mandatory one-person-one-vote requirement) if the courthouse door is closed to complaints about partisan gerrymandering is a fool.
The hardest question in partisan gerrymandering is how one can definitively say whether a district map or a statewide map is fair or unfair without simply relying on the fact that it fails to deliver proportional representation. Of course, proportional representation sounds appealing, but individual House members represent distinct geographic areas and are elected on a “first past the post” basis—both factors are likely to produce non-proportional outcomes from time to time, even without deliberate partisan bias.
Justice Alito: But, if you have 24,000 maps that satisfy all of the so-called neutral criteria that you put in your computer program, don’t you need a criterion or criteria for deciding which of the 24,000 maps you’re going to choose? And implicit in Justice Kagan’s comments is the idea, is it not, that you have to choose one that honors proportional representation?
To confirm our impression that proportional representation was the issue of the day, we broke the transcript in Rucho down into two word ngrams. Excluding the names of the justices, the most frequent 2grams (two-word ngrams) are illustrated below, with larger words being more frequent.
ScotusOA.com: Most frequent word pairings in Rucho v. Common Cause oral argument.
“Proportional representation” was mentioned 44 times in Rucho, whereas the next most common 2grams, “North Carolina” and “majority votes”, were mentioned only 14 and 11 times, respectively. Proportional representation was also the most common 2gram in Lamone v. Benisek, where it was only mentioned 12 times.
For all the angst over proportional representation, the quandary is overstated. The answer to the proportional representation question is surely that in a representative democracy with a constitutional guarantee of equal protection, we are all entitled to have our votes aggregated according to fair and reasonable criteria. A fair process will lead to something close to proportional representation in most cases, but not inevitably: respecting natural and political geography can lead to something different without violating the Constitution.
The Constitution does not guarantee proportional representation, but the Equal Protection Clause and First Amendment both require that district boundaries are drawn by a fair process, applying appropriate criteria. Partisan advantage, i.e., rigging the system in favor of your own team, cannot be one of those criteria.
Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?
Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.
Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.


§ 82-2 Issuance of permit.
§ 82-3 Renewal of permit.
§ 82-4 Display of information on bin.
Editor's Note: Former Ch. 82, Cats, adopted 4-9-1990 by Ord. No. 10-90, as amended, was repealed 5-23-2005 by Ord. No. 15-2005. See now Ch. 59, Animals and Rabies Control.
In accordance with N.J.S.A. 40:48-2.61, notwithstanding any other provision of law to the contrary, no person or entity shall place, use, or employ a donation clothing bin, for solicitation purposes, within the Borough of Madison unless the person or entity shall obtain a permit, valid for a period of one year, issued by the Borough Clerk, upon approval of the Borough Council, in accordance with this Chapter 82.
A zoning permit issued by the Madison Zoning Officer pursuant to § 195-30.5 of the Madison Land Development Ordinance.
The Borough Council shall not grant an application for a permit to place, use, or employ a donation clothing bin if it determines that the placement of the bin could constitute a safety hazard. Such hazards shall include, but not be limited to, the placement of a donation clothing bin within 100 yards of any place which stores large amounts of, or sells, fuel or other flammable liquids or gases.
The applicant shall pay to the Borough of Madison a permit fee of $25 to offset the costs involved in enforcing this chapter and N.J.S.A. 40:48-2.60 et seq.
The name and telephone number of the bona fide office required pursuant to § 82-4B of any entity which shared or profited from any clothing or other donations collected via the bin, and of any entities which may do so during the period covered by the renewal.
A statement, consistent with the information provided to the Borough of Madison in the most recent permit or renewal application pursuant to § 82-2A(2) and § 82-3B, indicating the manner in which the person anticipates any clothing or other donations collected via the bin would be used, sold, or dispersed, and the method by which the proceeds of collected donations would be allocated or spent.
The Borough of Madison shall receive and investigate, within 30 days, any complaints from the public about the bin. Whenever it appears to the Borough of Madison that a person has engaged in, or is engaging in, any act or practice in violation of § 2 of N.J.S.A. 40:48-2.61 or any provisions of this chapter, the person who placed the bin shall be issued a warning, stating that if the violation is not rectified or a hearing with the Borough Council is not requested within 45 days, the bin will be seized or removed at the expense of the person who placed the bin, and any clothing or other donations collected via the bin will be sold at public auction or otherwise disposed of. In addition to any other means used to notify the person who placed the bin, such warning shall be affixed to the exterior of the bin itself.
In the event that the person who placed the bin does not rectify the violation or request a hearing within 45 days of the posting of the warning, the Borough of Madison may seize the bin, remove it, or have it removed, at the expense of the person who placed the bin, and sell at public auction or otherwise dispose of any clothing or other donations collected via the bin. Any proceeds from the sale of the donations collected via the bin shall be paid to the Borough of Madison.
Demonstrates that he made a good faith effort to comply with the provisions of N.J.S.A. 40:48-2.60 et seq. and this chapter and all other applicable laws and regulations, or had no fraudulent intentions.


Present: IRELAND, SPINA, BOTSFORD, & GANTS, JJ.
Practice, Criminal, Assistance of counsel, Argument by prosecutor, Instructions to jury, Agreement between prosecutor and witness, Capital case. Constitutional Law, Assistance of counsel, Search and seizure. Search and Seizure, Automobile. Motor Vehicle, Seat belt. Probable Cause. Witness, Impeachment. Evidence, Exculpatory, Alibi.
INDICTMENTS found and returned in the Superior Court Department on March 29, 2005.
A pretrial motion to suppress evidence was heard by Daniel A. Ford, J.; the cases were tried before Cornelius J. Moriarty, J., and a motion for a new trial was heard by him.
BOTSFORD, J. A jury in the Superior Court found the defendant, Derrick Washington, along with two codefendants, Maurice Felder and Aaron Lester, guilty of murder in the first degree of Tyrone Lewis, Jr., and Adrian White [Note 1]; the jury also convicted the three of armed robbery of Lewis, unlawful possession of a firearm, unlawful possession of ammunition, and use of a firearm in the commission of a felony. [Note 2] Before us is the defendant's appeal from his convictions as well as his appeal from the denial of his motion for a new trial. The defendant claims that (1) his trial counsel was ineffective in failing properly to challenge the seizure of evidence at a traffic stop that culminated in the defendant's arrest, with the result that prejudicial evidence was erroneously admitted against the defendant at trial; (2) the prosecutor's impeachment of the defendant's alibi witness was improper; and (3) the trial judge erred in declining to instruct the jury in accordance with Commonwealth v. Ciampa, 406 Mass. 257 , 266 (1989) (Ciampa). We affirm the defendant's convictions and the denial of his motion for a new trial, and we decline to exercise our power under G. L. c. 278, § 33E.
1. Background. In Commonwealth v. Felder, 455 Mass. 359 , 360-366 (2009) (Felder), we considered the appeal of one of the codefendants from his convictions. The opinion in Felder sets out in some detail the events surrounding the murders of Lewis and White, as presented by the evidence at trial. See id. We summarize more briefly here the relevant facts as the jury could have found them.
clothes, walked downstairs, and let Felder into the house, along with Lester and the defendant. Felder had been in the house before, and Young also was acquainted with the other two men.
Once inside the house, Felder and Lester (collectively, codefendants), joined by the defendant, ordered Young at gunpoint to contact the victim Lewis, who, as Young knew, dealt in cocaine, and to ask him to deliver $400 worth of cocaine. Young did so, and when Lewis arrived, Young lured him into the house at the defendant's and codefendants' direction. Lewis in turn was forced by the defendant and codefendants to call his driver, the victim White, into the house. In an attempt to save his and White's lives, Lewis offered to arrange to retrieve $20,000 in cash from his girl friend, and to give it to the defendant and codefendants. Felder drove to Lewis's house to pick up the money, returned to Young's house, and split the money with Lester and the defendant. Despite having the cash in hand, the defendant and codefendants brought Lewis, White, and Young up to Young's attic, tied them up, and shot at them. Lewis and White died from gunshot wounds, but Lester's bullet missed Young, who pretended to be dead.
Young escaped from the house after the defendant and codefendants had gone. He ran to a neighbor's house, and the neighbor contacted the police at Young's request. Young was driven to the police station in the early morning hours of February 7. Young initially told the police he had been the victim of a home invasion by three masked intruders. While still at the police station that morning, he changed his story after the district attorney, in order to clear the way for Young to leave the Commonwealth, agreed to drop certain criminal charges pending against him. Young then told the police substantially the version of events to which he testified at trial, and identified the three codefendants as the assailants who shot the two victims.
The jury found the defendant guilty on two indictments charging murder in the first degree and the related armed robbery and firearm charges. He timely filed a notice of appeal from his convictions. While his appeal was still pending, he filed a motion for a new trial raising the issues addressed in Part 2. We remanded the motion to the Superior Court, where the trial judge denied it after a nonevidentiary hearing. The defendant timely appealed from the denial of the motion for a new trial, and the consolidated appeal is now before this court.
$6,720.49 in cash, on the ground that the money was found as a consequence of an unlawful exit order from the Honda in which he was riding, and a subsequent patfrisk. A judge in the Superior Court (motion judge) denied the motion following an evidentiary hearing. The issue presented by the defendant on appeal -- raised by the defendant for the first time in his motion for a new trial -- is whether trial counsel was ineffective in failing to argue that the State trooper never saw the Honda's passengers without seat belts while they were "riding" in the car, that he lacked probable cause to issue a citation, and that therefore he was unjustified in demanding identification -- without which, the argument goes, the trooper would not have discovered the arrest warrant for the defendant on a charge of murder. Pursuant to G. L. c. 278, § 33E, the court examines the defendant's claims of ineffective assistance of counsel to determine "whether there was error at trial and, if so, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Gaboriault, 439 Mass. 84 , 90 (2003), citing Commonwealth v. Wright, 411 Mass. 678 , 682 n.1 (1992). We find no error, and no ineffective assistance of counsel.
The defendant got out, and identified himself orally as "Derrick Washington." Maher had noticed a bulge consistent with a wallet in the defendant's right front pants pocket; as the defendant left the vehicle, the trooper observed that the bulge appeared to be a large amount of cash partly protruding from the defendant's pocket. Maher pat frisked the defendant, took the money from the defendant, and asked him to sit in the rear of the cruiser because it was a cold day. [Note 11] Thereafter, by running a warrant check from his cruiser, Maher discovered the arrest warrants for murder for the defendant and Lester. Maher requested backup and then arrested both men.
In denying the defendant's motion for a new trial, the trial judge concluded that the exit order and patfrisk were based on Maher's reasonable belief that his safety or that of others was in danger. He also concluded that where the trooper's observation that the defendant was not wearing a seat belt "followed closely on the heels of the stop," Maher could "reasonably suspect"
the defendant was riding in a vehicle without his seat belt fastened, in violation of G. L. c. 90, § 13A.
b. Discussion. The seat belt law provides that "[n]o person shall . . . ride [ [Note 12]] in a private passenger motor vehicle . . . unless such person is wearing a safety belt which is properly adjusted and fastened," with certain limited exceptions that do not apply in this case. G. L. c. 90, § 13A, inserted by St. 1993, c. 387, § 1. [Note 13] Persons over the age of sixteen are subject to a fine of twenty-five dollars if they violate § 13A. Id. A police officer generally has no right automatically to demand identification from a passenger in a motor vehicle, see Commonwealth v. Torres, 424 Mass. 153 , 157-158 (1997), but he may make such a demand if he intends to issue a citation for a seat belt law violation and has a valid basis to do so. See Commonwealth v. Goewey, 452 Mass. 399 , 405-406 (2008). While we agree with the defendant that probable cause is the proper standard to justify the issuance of a citation or warning for a violation of the seat belt law, G. L. c. 90, § 13A, we disagree that Trooper Maher lacked the necessary probable cause.
police officer's determination of a civil motor vehicle infraction. See G. L. c. 90C, § 3 (A) (2) (citation must be paid or contested in District Court). The finality of this action distinguishes it from actions that are merely preliminary to the police officer's further investigation. Contrast Commonwealth v. Torres, supra at 158 (reasonable suspicion required to commence interrogation of passengers regarding criminal activity or other suspicious conduct); Commonwealth v. Baez, 47 Mass. App. Ct. 115 , 118 (1999) (further investigation in form of measuring tint of window followed traffic stop for suspected violation of G. L. c. 90, § 9D). In this limited sense, issuance of a citation is more like an arrest than it is like an investigatory traffic stop, and thus probable cause is the appropriate standard. [Note 14] Cf. Commonwealth v. Stephens, 451 Mass. 370 , 385 (2008), quoting Commonwealth v. Santaliz, 413 Mass. 238 , 241 (1992) ("probable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense").
has violated the seat belt law, the defendant claims the officer must directly observe the violation while the passenger is riding, or otherwise reasonably infer the passenger had not been wearing the seat belt. The defendant concedes that an officer who had not observed passengers with their seat belts off while traveling might nonetheless reasonably infer a violation where the officer saw the passengers fastening their seat belts immediately after the car was stopped. He argues, however, that even a short lapse of time between a stop and a direct observation allows sufficient time to unfasten seat belts. Where, as here, Trooper Maher was not asked how much time had passed between the traffic stop and his approach, the defendant would have us draw no inference as to the use of the seat belt while the car was traveling, deeming it equally likely that the passengers had unfastened their seat belts after the stop as that they had not worn them while riding.
We accept the defendant's contention that he was not "riding" in Gonzalez's car at the time that Maher observed him without a seat belt. Nevertheless, although the record offers no quantitative measurement of time elapsed between the stop and Maher's observations of the passengers, it strongly suggests that negligible time had passed. [Note 15] In the circumstances, where the passengers were not wearing seat belts very shortly after the traffic stop, we conclude that Maher reasonably inferred that they probably had not been wearing them while riding in the car. See Commonwealth v. Cast, 407 Mass. 891 , 895-896 (1990) (probable cause exists in relation to probabilities and reasonable inferences).
fourth element, that witness was not asked by defendant to refrain from disclosing exculpatory information).
When pressed whether at any point she thought her information to be important, however, she then testified: THE WITNESS: "I would just say important as because I knew he was at my house the day before, I mean, watching the Super Bowl. But I didn't know it was that relevant to what had happened."
THE PROSECUTOR: "So you didn't think that that was relevant; is that your testimony?"
Meriweather later testified, without objection, that she made no effort to tell anybody in law enforcement about the information she possessed. In a sidebar conference with the attorneys before the closing arguments, the trial judge expressed doubt that the Commonwealth had satisfied the first Brown element, but he did not make any ruling on the subject. In closing argument, the prosecutor contrasted for the jury Meriweather's very general recollection of the 2005 Super Bowl game itself and events around that time with her "certainty" that the defendant was at her home until fifteen minutes after the game. In that context, the prosecutor posed this question to the jury: "And ask yourself, when did she tell anybody that?"
In this case, the parties disagree only about whether the prosecutor satisfied the first Brown element, "that the witness knew of the pending charges in sufficient detail to realize that [she] possessed exculpatory information." [Note 19] Hart, 455 Mass. at 238. The defendant argues that Meriweather expressly denied that she knew the defendant's presence in her home during the Super Bowl was relevant to the charges he faced, and claims there was no reason shown why she should have realized that the time of the game overlapped with the charged crimes. The Commonwealth argues that her testimony about whether her information was relevant, and about whether she contacted law enforcement, suggests that at some point prior to trial she realized that her information was relevant, yet did nothing.
it was not "that relevant." In the final analysis, however, we think it fair to conclude Meriweather understood the information she had was of significance to the defendant's serious criminal charges, and was potentially exculpatory. Her failure to approach law enforcement was therefore a proper subject for comment.
In any event, in her closing argument, the prosecutor made only the briefest use of this information in an argument whose main thrust was that Meriweather's memory was fallible, particularly in comparison to the clearer recollections of Lewis's girl friend. [Note 20] The rhetorical question challenged on appeal was no more than an offhand comment in the context of a more generalized attack on the accuracy of Meriweather's recollections of the evening. Accordingly, even if the Brown foundational elements were not satisfied, the prosecutor's question to the jury in her closing argument did not create a substantial likelihood of miscarriage of justice. See Commonwealth v. Montez, 450 Mass. 736 , 750 (2008) (isolated statement in closing argument, even though improper, did not create substantial likelihood of miscarriage of justice).
5. G. L. c. 278, § 33E. We have examined the record of the convictions of murder in the first degree pursuant to our duty under G. L. c. 278, § 33E, and discern no basis on which to grant the defendant relief.
[Note 1] The jury found the defendant and his codefendants guilty under all three theories of murder in the first degree with respect to each victim. This court has affirmed the convictions of Maurice Felder. Commonwealth v. Felder, 455 Mass. 359 , 360 (2009). Aaron Lester's appeal from his convictions remains pending.
[Note 2] After the close of the Commonwealth's case, the judge entered findings of not guilty on indictments charging the defendant and his codefendants with armed robbery of Mark Young, Jr., and armed robbery of Adrian White. The judge also entered a finding of not guilty on an indictment charging Felder with larceny of a motor vehicle; the defendant did not face a comparable charge.
[Note 3] By the time of the defendant's traffic stop, Felder was already under arrest. Around 2 A.M. on February 7, police arrested Felder at a hospital in Palmer where he had presented himself for treatment of a gunshot wound. Felder had on him $7,103.85.
[Note 4] At the time of his arrest, Lester had $5,907 on his person.
[Note 5] By contrast, the Commonwealth offered forensic evidence at trial that linked Felder and Lester to the scene of the murders. Lester was a potential contributor to deoxyribonucleic acid (DNA) found on a pillowcase recovered from the attic. A swab from a stain, likely blood, found on the sidewalk outside the house matched Felder's DNA.
[Note 6] Trooper Sean Maher testified about the events of the traffic stop at the hearing on the motion to suppress; the motion judge specifically found him to be a credible witness.
[Note 7] Maher did not see the occupants as the vehicle first drove past him.
[Note 8] Maher testified at the suppression hearing that "this was all in one sequence. I walk up to the vehicle; asked [the driver] for license and registration; observed at the same time that these parties weren't wearing seat belts."
[Note 9] The motion judge found that Maher requested that the defendant get out of the car, as opposed to ordering him to do so. Because we conclude that the discovery of the arrest warrant was the inevitable result of the request for identification, we need not address the motion judge's finding that Maher communicated a request and not an order. See note 16, infra.
[Note 10] Maher testified at the suppression hearing that because the defendant was "acting nervous" and said he did not have identification on him, Maher wanted to obtain an oral identification from the defendant while the defendant was separated from the vehicle's other occupants. At trial, Maher further clarified that had the defendant told him a false name and date of birth in the presence of the other vehicle occupants, they would have heard the false identification, and so Maher would not have been able independently to confirm the defendant's identity through them.
[Note 11] Maher testified at the suppression hearing that after the defendant was seated in the back of the cruiser, Maher returned to Gonzalez's car and spoke with the back seat passenger, who produced a learner's permit identifying himself as Aaron Lester. Maher then returned to the cruiser.
[Note 12] We interpret "ride" to mean to "travel or become conveyed by a vehicle," in accord with its usual dictionary meaning. See Webster's Third New Int'l Dictionary 1952 (1993).
"No person shall . . . ride in a private passenger motor vehicle . . . on any way unless such person is wearing a safety belt which is properly adjusted and fastened . . . .
"Any person who operates a motor vehicle without a safety belt, and any person sixteen years of age or over who rides as a passenger in a motor vehicle without wearing a safety belt in violation of this section, shall be subject to a fine of twenty-five dollars. . . . The provisions of this section shall be enforced by law enforcement agencies only when an operator of a motor vehicle has been stopped for a violation of the motor vehicle laws or some other offense.
"Any person who receives a citation for violating this section may contest such citation pursuant to [G. L. c. 90C, § 3]. . . ."
G. L. c. 90, § 13A, inserted by St. 1993, c. 387, § 1. Section 13A was amended in 2008, but the amendment has no bearing on this case. See St. 2008, c. 225 (new seat belt exemption for riders in certain antique cars).
[Note 14] While suspicion of criminal activity supported by reasonable articulable facts may justify a brief detention to conduct a threshold inquiry, see Terry v. Ohio, 392 U.S. 1, 8 (1968); see also Commonwealth v. Bostock, 450 Mass. 616 , 619 (2008), police must have probable cause to justify actions that exceed the bounds of an investigatory stop and thereby amount to an arrest. See Commonwealth v. Borges, 395 Mass. 788 , 794 (1985). See also Florida v. Royer, 460 U.S. 491, 500 (1983) ("investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time"). Likewise, an officer's reasonable suspicion of a possible, but unconfirmed, motor vehicle violation sufficiently justifies an investigatory traffic stop in order to verify or dispel that suspicion. See Commonwealth v. Eckert, 431 Mass. 591 , 598 (2000) (reasonable suspicion driver was intoxicated would justify field sobriety tests); Commonwealth v. Baez, 47 Mass. App. Ct. 115 , 118 (1999) (reasonable suspicion windows illegally tinted). Issuance of a citation, however, exceeds the bounds of investigatory activity because, necessarily, at the point of issuing a citation, an officer's investigation has already concluded. Police action in issuing a citation is in this way similar to an arrest.
[Note 15] At the suppression hearing, Maher testified that he pulled over Gonzalez's car and saw the rear registration plate, then got out of the cruiser and approached the car without stopping to "call in" the registration plate number. As noted, see note 8, supra, Maher also testified that his actions in approaching the car and observing the absence of seat belts were "all in one sequence."
[Note 16] Pursuant to our authority under G. L. c. 278, § 33E, we may consider the other matters raised in the defendant's motion to suppress or his motion for a new trial, but we conclude that in this case, only the validity of the request for identification matters. As the Commonwealth and the defendant now agree, if the request for identification was valid, the inevitable discovery doctrine applies, and the cash in the defendant's pocket would have been discovered in a search incident to arrest, regardless whether there had been an exit order and patfrisk. Therefore, we do not address further the lawfulness of the exit order, if there was one, or of the patfrisk.
[Note 17] The defendant and the Commonwealth disagree on whether defense counsel objected to the claimed error at trial. The defendant points out that his counsel did contend prior to closing arguments that the prosecutor should not be allowed to argue in closing that Meriweather's credibility was impeached by her failure to speak to the police in a timely fashion. However, defense counsel thereafter did not object to the prosecutor's actual closing argument, nor did he request a curative instruction; error, if any, was therefore not preserved. "Failure to object to the closing and to ask for a curative instruction waives the right to claim error on appeal, limiting our inquiry to whether the prosecutor's statements are such that they create a substantial likelihood of a miscarriage of justice." Commonwealth v. Marquetty, 416 Mass. 445 , 450 (1993). See Commonwealth v. Johnson, 374 Mass. 453 , 458 (1978) (right to claim error on appeal waived where defense objected to statements after judge instructed jury instead of during, or at close of, prosecutor's argument).
[Note 18] Defense counsel's objection to this question was overruled.
[Note 19] The defendant concedes the other two Brown elements were satisfied. Meriweather testified that her son was the defendant's friend, and that she and the defendant's father were coworkers, suggesting she had "reason to make the information available" to authorities. Commonwealth v. Brown, 11 Mass. App. Ct. 288 , 296 (1981). She also testified that she worked for the Hampden County house of correction, implying she was "familiar with the means of reporting [information] to the proper authorities." See id. at 296-297.
[Note 20] The prosecutor suggested to the jury that for Lewis's girl friend, who would never again see the father of her children, the events of February 6, 2005, had great significance; Meriweather, the prosecutor implied, had less reason to remember that night, and less clear recollections of it, as evidenced by her failure to remember which teams were playing in the Super Bowl, or who won.
[Note 21] Where a Ciampa instruction is warranted, the following rules apply. A prosecutor may generally bring out on direct examination the fact that a witness has entered into a plea agreement and understands his obligations under it, but any attempts to bolster the witness by questions concerning his obligation to tell the truth should await redirect examination, and are appropriate only after the defendant has attempted to impeach the witness's credibility by showing the witness struck a deal with the prosecution to obtain favorable treatment. Commonwealth v. Ciampa, 406 Mass. 257 , 264 (1989). A prosecutor in closing argument may then restate the witness's agreement, but commits reversible error if she "suggests that the government has special knowledge by which it can verify the witness's testimony." Id. at 265. To guard against an implied representation of credibility, the judge must "specifically and forcefully tell the jury to study the witness's credibility with particular care." Id. at 266, citing United States v. Mealy, 851 F.2d 890, 900 (7th Cir. 1988). Where the jury are aware of the witness's promise to tell the truth, the judge also should warn the jury that the government does not know whether the witness is telling the truth. Commonwealth v. Meuse, 423 Mass. 831 , 832 (1996), citing Commonwealth v. Ciampa, supra at 264.
[Note 22] In reference to Young, the judge did instruct the jury that they could consider whether a witness expected favorable treatment from the district attorney's office in pending or future cases, or received any promises, rewards, or inducements, and, if so, whether they influenced his testimony. The judge then suggested Young's testimony should be examined with extra care and caution.