Charles YANG, Petitioner–Appellant v. Tom ROY, Commissioner of Corrections, Respondent–Appellee.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges. Daniel Aaron Christians, argued, Minneapolis, MN, for Appellant. Robert D. Goodell, argued, Anoka, MN, for Appellee.
A Minnesota jury found Charles Yang guilty of twelve counts of murder. After appealing the verdict to the Minnesota Supreme Court, Charles Yang filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging violations of his Sixth Amendment Confrontation Clause rights during his trial. The district court1 denied the petition with prejudice and on the merits. With jurisdiction under 28 U.S.C. § 2253, we affirm.
On February 3, 2005, a pool hall fight between the largely Hmong gang “Menace of Destruction” (“MOD”) and a group of Tibetan men resulted in two men killed and four wounded. The sequence of events is set out in greater detail in the district court opinion, but the following describes the facts as relevant here. Earlier that day, MOD members made hostile comments to some of the Tibetans in the parking lot of a pool hall in Columbia Heights, Minnesota. That night, at least one of the Tibetans confronted one of the MOD members in the pool hall. A fight began inside the hall, but both groups soon ran out the back door and into the alley nearby. The district court found that at least twelve and possibly twenty gun shots were fired. Once the gunfire started, police officers came quickly to the pool hall, and some stopped a car that was leaving the area. MOD member Sai Vang was driving the car, with petitioner Yang in the passenger seat and Yang's brother Grogan Yang (also an MOD member) in the back seat. Police found two guns under the driver's seat and a .357 Magnum Smith and Wesson under Yang's seat, with six empty bullet shells. Yang acknowledged that he, too, was a member of the MOD gang and had been at the pool hall that night. A subsequent search of Yang's home uncovered .357 ammunition in his bedroom.
Yang was charged with aiding and abetting first-degree premeditated murder (two counts); aiding and abetting first-degree premeditated murder for the benefit of a gang (two counts); aiding and abetting attempted first-degree murder (four counts); and aiding and abetting attempted first-degree murder for the benefit of a gang (four counts). At trial, three witnesses testified against Yang based on conversations with him while in the Anoka County Jail. Other prosecution witnesses included Vang (the driver of Yang's car) and Xee Lor, both of whom were also MOD members and were also charged with twelve felony counts. Vang's and Lor's plea agreements allowed them to plead guilty to lesser offenses, and they accordingly expected shorter sentences than if they had gone to trial. The plea agreements also required them to testify at Yang's trial.
The Minnesota trial judge prohibited defense counsel from cross-examining codefendants Vang and Lor about the number of months by which their sentences would be reduced based on their plea agreements; he permitted cross-examination into the percentage of reduction, if the parties could agree on percentages to use. No such agreement was reached. Although the district court denied Yang's federal habeas petition, the court granted a certificate of appealability on the issue of whether Yang's rights under the Confrontation Clause were violated by the limit on his counsel's ability to cross-examine Vang and Lor regarding the extent to which their sentences might be reduced in exchange for their testimony against Yang.
In reviewing a habeas petition, we first evaluate whether the state court ruling at issue was contrary to, or an unreasonable application of, clearly established law as reflected by the holdings, not the dicta, of Supreme Court decisions at the time of the relevant state court decision. 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this context, “contrary to” means that the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law. Id. at 405. A ruling is an “unreasonable application of” Supreme Court precedent if the state court identifies the correct governing legal principle but unreasonably—rather than simply erroneously or incorrectly—applies that principle to the facts of the prisoner's case. Id. at 409, 413. “In other words, the state court's application might be erroneous in our independent judgment without being ‘objectively unreasonable.’ “ Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir.2004) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). We presume that the state court's factual determination is correct unless Yang rebuts it with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
If Yang's Sixth Amendment rights were violated as a result of the Minnesota court's decision, he must also demonstrate that the error was prejudicial, meaning that it had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotation omitted). “A ‘substantial and injurious effect’ occurs when the court finds itself in ‘grave doubt’ about the effect of the error on the jury's verdict.” Toua Hong Chang v. Minnesota, 521 F.3d 828, 832 (8th Cir.2008) (quoting O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1992)). “ ‘Grave doubt’ exists where the issue of harmlessness is ‘so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.’ “ Id.
A defendant has the right under the Sixth Amendment's Confrontation Clause to elicit enough facts about a witness' “possible biases, prejudices, or ulterior motives” to let the jury assess witness credibility. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). “[T]he exposure of a witness' motivation in testifying is a proper and important feature of the constitutionally protected right of cross-examination.” Id. at 316–17. “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited in engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors ․ could appropriately draw inferences relating to the reliability of the witness.’ “ Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Davis, 415 U.S. at 318). Even so, this right is not unlimited: a defendant is guaranteed “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). The trial judge “retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. We take these considerations into account when assessing Yang's claim that the state court violated his Sixth Amendment rights.
In affirming Yang's verdict, the Minnesota Supreme Court relied on two Minnesota decisions regarding two codefendants that applied this line of cases. In State v. Greenleaf, 591 N.W.2d 488 (Minn.1999) and State v. DeVerney, 592 N.W.2d 837 (Minn.1999), the Court considered the impact on defendants' Sixth Amendment rights when the trial court limited the extent to which their codefendant Martin was cross-examined about his plea agreement. Martin's plea agreement provided that he was required to testify truthfully at Greenleaf's and DeVerney's trials and that he would receive a sentence ranging from 163 to 244.5 months. Greenleaf, 591 N.W.2d at 502. The trial judge did not allow Greenleaf's counsel to question Martin about the exact number of months by which his sentence could be reduced, but the judge “did not prohibit Greenleaf from cross-examining Martin regarding every other aspect of the plea agreement, including the percentages by which Martin's sentence could be reduced.” Id. Mindful of Fensterer's admonition that “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination,’ “ the Minnesota Supreme Court found that the trial judge was correct to be “concerned that a recitation of the number of months of confinement Martin could serve might mislead the jury regarding the number of months another defendant, if convicted, might be confined.” Id. (quoting Fensterer, 474 U.S. at 20). Since “[i]t is for the court to sentence, and not the jury,” the trial court had “properly prevented the jury from speculating about possible sentences.” Id. The Court reached the same conclusion in codefendant DeVerney's appeal. DeVerney, 592 N.W.2d at 845.
Based on Greenleaf and DeVerney, the trial judge ruled that Yang could not ask Vang and Lor about the specific number of months by which their sentences might be reduced. Although Yang was permitted to ask them about the percentage reduction, there was no such percentage explicitly included in their plea agreements, nor could defense and prosecution counsel agree on one. Tr. 795–804, No. 11–177, ECF No. 5 Ex. 4. Yang was thus unable to elicit information that would quantify Vang's and Lor's anticipated sentence reductions. He was, however, allowed to ask Vang about the charges that had been brought against him; those to which he ultimately pled guilty; and whether he was satisfied with the plea agreement. Id. at 1777–79. On direct exam, Lor testified, unprompted, that he had taken a “32 years plea agreement” with the state; when asked whether he agreed “to plead guilty to a lower count of murder ․ to take advantage of less time in jail” and whether he “believed [the plea agreement] was a good deal” for him, he answered in the affirmative. Id. at 1843. On cross-examination, Yang asked Lor whether, as part of his plea agreement, Lor would be able to serve his sentence for the charges arising from the pool hall incident concurrently with a sentence for unrelated charges; Lor again said yes. Id. at 1888. Lor was also cross-examined as to the charges he originally faced and those to which he pled guilty in the plea agreement. Id. at 1893. The Minnesota Supreme Court held that the trial court did not err in limiting cross-examination: “the jury had sufficient information about [Yang's] codefendants' plea agreements to assess their credibility,” since “[t]he jury knew that the codefendants received considerably less jail time in exchange for their testimony .” State v. Yang, 774 N.W.2d 539, 553 (Minn.2009).
In evaluating the Confrontation Clause implications, we are concerned that “the accused should [be] able to contrast the original punishment faced by the witness with the more lenient punishment contemplated by the plea agreement.” United States v. Walley, 567 F.3d 354, 360 (8th Cir.2009). This contrast, however, need not be in the form of a particular number attached to the sentencing benefit received by a testifying codefendant. In Walley, we evaluated on direct appeal the claim that the district court improperly limited the defendant's ability to cross-examine a cooperating witness, Brandon Pender, about the possible sentence he was facing. During direct examination, Pender admitted that he was testifying pursuant to a plea agreement with the government and that he hoped to receive a reduced sentence as a result of his testimony. The district court did not allow cross-examination about the forty-year maximum sentence Pender faced or the five-year mandatory minimum sentence he could avoid only if the government filed a substantial-assistance motion. Instead, the district court allowed inquiry into whether Pender was “facing the possibility of a significant sentence in this case.” Id. at 359. Given the information the jury had about Pender's cooperation plea agreement, we were “not persuaded that evidence of Pender facing a ‘five-year sentence’ rather than a ‘significant sentence’ would have given the jury a ‘significantly different impression’ of Pender's credibility.” Id. at 360 (citing Van Arsdall, 475 U.S. at 680).
In this case, the jury knew that Vang and Lor pled guilty to lesser charges and that both hoped for a lower sentence as a result. See Walley, 567 F.3d at 360. Yang argues, however, that the trial judge erred in forestalling specific inquiry into the percentage by which Vang's and Lor's sentences were reduced by virtue of their plea agreements. This, Yang asserts, violated his rights under the Confrontation Clause. Although the agreements did not include percentages, Yang contends that the trial judge could have estimated a percentage based on the sentences they potentially faced from the original charges. We find that this was not a realistic possibility. Under Minnesota law, a premeditated first-degree murder conviction meant a mandatory life sentence, which is inherently not a fixed number of months. Minn.Stat. Ann. § 609.185(a)(1) (2004). Calculating the sentences that Vang and Lor anticipated absent a plea agreement would be complicated by the fact that they faced multiple counts of murder, at least one of which was charged as a crime committed for the benefit of a gang and thus subject to different sentence calculations. See Minn.Stat. Ann. §§ 609.15(1), 609.229 (2004). More importantly, however, Vang and Lor had not been sentenced at the time they testified, so estimating their percentage reduction would have been little more than a guess. It is also unclear how defense counsel would have elicited this information from Vang and Lor themselves. In this case, permitting cross-examination based on conjecture likely risked confusing the jury, without giving the jury a “ ‘significantly different impression’ “ of the witnesses' credibility. See United States v. Baldenegro–Valdez, 703 F.3d 1117, 1123–24 (8th Cir.2013) (quoting Van Arsdall, 475 U.S. at 680). We find that the Minnesota Supreme Court's determination that Yang's Confrontation Clause rights were not violated was not an unreasonable application of Supreme Court precedent.
Even if the jury were left without enough facts to gauge Vang's and Lor's credibility such that Yang's Sixth Amendment rights were violated, Yang must show that the state court's error had a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623 (quotation omitted). The Supreme Court in Van Arsdall listed several factors for reviewing courts to use in assessing prejudice: “the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” 475 U.S. at 684. Since the Minnesota Supreme Court found no Confrontation Clause violation in Yang's case, it did not assess prejudice; the district court therefore did so de novo.2 We agree with the district court that the prosecution's case did not depend so much on Vang's and Lor's testimony that limiting their cross-examination was prejudicial to Yang.
Although their testimony was damaging to Yang, Vang and Lor did not provide enough material information to have a “substantial and injurious effect” on the jury's verdict. Brecht, 507 U.S. at 623. Vang testified that he only knew Yang had a gun that night when Yang joined him in the car after leaving the pool hall. He did not testify in detail regarding where Yang was during the altercation. Vang's most harmful statement was Yang's admission to him that Yang had fired several shots but did not know if any of them had hit someone. Lor's contribution was less substantive than Vang's. He testified that Yang was in the pool hall when the fight started and in Vang's car when it was stopped by the police. In addition, the credibility of both Vang and Lor was already suspect: Yang was able to show that some aspects of their testimony did not match the accounts they initially gave the police. Likely because of these credibility problems, the prosecution did not rely on either codefendant's testimony significantly during closing argument.
Moreover, the Minnesota Supreme Court relied in part on the trial court's jury instruction that it could not find Yang guilty “based on Vang's accomplice testimony unless it was corroborated by someone other than an accomplice.” Yang, 774 N.W.2d at 554. The Court found that Vang's testimony—“[s]pecifically, the events inside the pool hall, and Yang's admission when he entered the car after the shootings” that he had fired a gun several times—was, in fact, corroborated by “numerous witnesses,” including three jailhouse informants who had allegedly spoken with Yang while incarcerated with him at the Anoka County Jail. Id. While the informants may have had something to gain from testifying, how much their testimony should be discounted is a credibility determination left to the jury. Vang's statement that Yang had a gun at the pool hall was also corroborated by physical evidence: when the police searched Vang's car, there was a gun under Yang's seat, and police later found bullets of the appropriate size for that gun in Yang's bedroom.
Finally, as the district court acknowledged, Yang was charged with aiding and abetting two murders and four attempted murders. A conviction on these charges did not require the prosecution to prove beyond a reasonable doubt that Yang actually used the gun found under his car seat. “Active participation in an offense is not required”; rather, there must be “ ‘some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.’ “ Yang, 774 N.W.2d at 562 (quoting State v. Ostrem, 535 N.W.2d 916, 924–25 (Minn.1995)). The Minnesota Supreme Court found, and we agree, that “there was sufficient evidence to prove that [Yang] actively participated in the shootings of the Tibetans, and that he intended his presence to further the commission of these crimes.” Id. Even though Vang testified about Yang's admission that he had fired several shots, proving this fact was not necessary for him to be convicted. We find that the limits imposed on Yang's cross-examination of the codefendants did not constitute prejudice.
We affirm the district court's denial of Yang's habeas petition on the merits.
1. The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Steven E. Rau, United States Magistrate Judge for the District of Minnesota.
2. See Fry v. Pliler, 551 U.S. 112, 121–22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (holding that federal courts in § 2254 proceedings must “assess the prejudicial impact of constitutional error in a state-court criminal trial” under the Brecht standard, whether or not the state appellate court recognized and reviewed the error under the more rigorous “harmless beyond a reasonable doubt” standard set forth previously in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).


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J. Spoerhase, H.-C. Wirth · (r,p)-Centroid Problems on Paths and Trees · Theoretical Computer Science 410, 2009, p. 5128-5137.
J. Spoerhase, H.-C. Wirth · Relaxed voting and competitive location on trees under monotonous gain functions · Discrete Applied Mathematics 158 (4), 2010, p. 361-373.
J. Spoerhase, H.-C. Wirth · Optimally computing all solutions of Stackelberg with parametric prices and of general monotonous gain functions on a tree · Journal of Discrete Algorithms 7(2), 2009, p.256-266.
J. Spoerhase, H.-C. Wirth · An O(n(log n)^2/ log log n) algorithm for the single maximum coverage location problem on trees · Information Processing Letters 109(8), 2009, p. 391-394.
J. Spoerhase, H.-C. Wirth · Approximating (r,p)-Centroid on a Path · Proceedings of the 7th Cologne-Twente Workshop on Graphs and Combinatorial Optimization (CTW'08), 2008; http://ctw08.dti.unimi.it/CTW08-Proceedings.pdf .
J. Spoerhase, H.-C. Wirth · (r,p)-Centroid Problems on Paths and Trees · Tech. Report no. 441, University of Würzburg, Department of Computer Science, 2007, https://www.informatik.uni-wuerzburg.de/forschung/technical_reports/.
H.-C. Wirth · On the complexity of budgeted maximum path coverage on trees · Tech. Report no. 438, University of Würzburg, Department of Computer Science, 2007, https://www.informatik.uni-wuerzburg.de/forschung/technical_reports/.
J. Spoerhase, H.-C. Wirth · Relaxed voting and competitive location on trees under monotonous gain functions · Tech. Report no. 401, University of Würzburg, Department of Computer Science, 2007, https://www.informatik.uni-wuerzburg.de/forschung/technical_reports/.
H. Noltemeier, J. Spoerhase, H.-C. Wirth · Multiple voting location and single voting location on trees · European Journal of Operations Research 181 (2007), 654-667.
J. Spoerhase, H.-C. Wirth · A linear time algorithm for absolute optima under monotonous gain functions · Tech. Report no. 433, University of Würzburg, Department of Computer Science, 2007, https://www.informatik.uni-wuerzburg.de/forschung/technical_reports/.
I. Demgensky, H. Noltemeier, H.-C. Wirth · Optimizing cost flows by edge cost and capacity upgrade · Journal of Discrete Algorithms 2 (2004), no. 4, 407-423.
S. O. Krumke, H. Noltemeier, H.-C. Wirth, A. Ziegler · Budgeted maximum path coverage · Preproceedings of 21st IFIP TC 7 Conference on System Modeling and Optimization, Sophia Antipolis, France, 2003.
I. Demgensky, H. Noltemeier, H.-C. Wirth · On the flow cost lowering problem · European Journal of Operational Research 137 (2002), 265-271.
S. O. Krumke, M. V. Marathe, D. Poensgen, S. S. Ravi, and H.-C. Wirth · Budgeted maximum graph coverage · Proc. 28th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'02), Lecture Notes in Computer Science, vol. 2573, Springer, 2002, pp. 321-332.
S. Fuhrmann, S. O. Krumke, H.-C. Wirth · Multiple hotlink assignment · Proc. 27th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'01), Lecture Notes in Computer Science, vol. 2204, Springer, 2001, pp. 189-200.
S. O. Krumke, M. V. Marathe, H. Noltemeier, S. S. Ravi, H.-C. Wirth · Upgrading bottleneck constrained forests · Discrete Applied Mathematics 108 (2001), 129-142.
J. Steffan, H.-C. Wirth · Reload cost problems: Minimum diameter spanning tree · Discrete Applied Mathematics 113 (2001), no. 1, 73-85.
D. Hauptmeier, S. O. Krumke, J. Rambau, H.-C. Wirth · Euler is standing in line. Dial a ride problems with precedence constraints · Discrete Applied Mathematics 113 (2001), 87-107.
H.-C. Wirth · Multicriteria approximation of network design and network upgrade problems · Ph.D. thesis, Institut für Informatik, Universität Würzburg, 2001, http://www.opus-bayern.de/uni-wuerzburg/volltexte/2002/284/.
I. Demgensky, H. Noltemeier, H.-C. Wirth · Optimizing cost flows by modifying arc costs and capacities · Proc. 26th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'00), Lecture Notes in Computer Science, vol. 1928, Springer, 2000, pp. 116-126.
S. O. Krumke, M. V. Marathe, H. Noltemeier, R. Ravi, S. S. Ravi, R. Sundaram, H. C. Wirth · Improving minimum cost spanning trees by upgrading nodes · Journal of Algorithms 33 (1999), no. 1, 92-111.
H. Noltemeier, H.-C. Wirth, S. O. Krumke · Network design and network improvement · ACM Computing Surveys 31 (1999), no. 3es.
S. O. Krumke, M. V. Marathe, H. Noltemeier, R. Ravi, S. S. Ravi, R. Sundaram, H. C. Wirth · Improving spanning trees by upgrading nodes · Theoretical Computer Science 221 (1999), no. 1-2, 139-156.
J. Steffan, H.-C. Wirth · On minimum diameter spanning trees under reload costs · Proc. 25th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'99), Lecture Notes in Computer Science, vol. 1665, Springer, 1999, pp. 78-88.
S. O. Krumke, H. Noltemeier, R. Ravi, S. Schwarz, H.-C. Wirth · Flow improvement and flows with fixed costs · Proceedings of the International Conference of Operations Research Zürich (OR'98), Operations Research Proceedings, Springer, 1999.
D. Hauptmeier, S. O. Krumke, J. Rambau, H.-C. Wirth · Euler is standing in line · Proc. 25th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'99), Lecture Notes in Computer Science, vol. 1665, Springer, 1999, pp. 42-54.
S. O. Krumke, H.-C. Wirth · On the minimum label spanning tree problem · Information Processing Letters 66 (1998), no. 2, 81-85.
S. O. Krumke, M. V. Marathe, H. Noltemeier, S. S. Ravi, H.-C. Wirth · Upgrading bottleneck constrained forests · Proc. 24th International Workshop on Graph-Theoretic Concepts in Computer Science (WG'98), Lecture Notes in Computer Science, vol. 1517, Springer, 1998, pp. 215-226.
J. Steffan, H.-C. Wirth · ANDI - Approximation Algorithms for Network Design and Network Improvement Problems · Tech. Report 202, University of Würzburg, Dept. of Mathematics and Computer Science, 1998.
S. O. Krumke, M. V. Marathe, H. Noltemeier, R. Ravi, S. S. Ravi, R. Sundaram, H. C. Wirth · Improving spanning trees by upgrading nodes · Proceedings of the 24th International Colloquium on Automata, Languages and Programming (ICALP'97), Lecture Notes in Computer Science, vol. 1256, 1997, pp. 281-291.
H.-C. Wirth · Modifikationen von Netzen bei mehreren Kriterien · Diplomarbeit, Institut für Informatik, Universität Würzburg, 1997.

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Filed under: Civil Procedure, Disclosure of Records. Location: Alabama.
The Alabama Supreme Court affirmed a trial court’s summary judgment order that held incident and investigative reports created by the Alabama Department of Corrections (ADOC) are subject to the state’s Open Records Act.
Beginning in October 2006, the Southern Center for Human Rights (SCHR) began seeking incident reports regarding assaults and murders of several prisoners at the Donaldson Correctional Facility (DCF). Following considerable haggling, in April 2007 the ADOC finally provided the SCHR with a summary of certain incidents.
The SCHR, representing six prisoners at DCF, along with Barksdale’s mother, filed suit under the state’s Open Records Act to compel disclosure of the documents. The trial court ordered production, allowing the ADOC to “redact sensitive information on a case by case basis if the [commissioner] reasonably believes the release of information will subject a person to specific threat or harm, or if the release will jeopardize a pending criminal investigation or the release will violate any state or federal law.” The ADOC appealed.
The Alabama Supreme Court found the Open Records Act entitles a citizen to inspect a “public writing” and a “public record.” The statute, § 36-12-40, Ala. Code 1975, is to be liberally construed in favor of disclosure.
The ADOC had a “blanket” policy of prohibiting disclosure of incident reports under the Open Records Act, and asserted a statutory exemption for investigative law enforcement records under § 12-21-3.1(b), Ala. Code 1975.
The Supreme Court disagreed with the ADOC’s argument that incident reports generated by prison employees were exempt from disclosure. Such exemptions must be narrowly tailored, the court said.
The plaintiffs conceded that I & I investigative reports were protected under § 12-21-3.1(b). Despite that concession, the court held that under previous precedent, such investigative reports were subject to disclosure when they contain information that cannot be obtained from other sources without undue hardship. Further, the Supreme Court found that ADOC incident reports are not similarly protected under § 12-21-3.1(b).
Deciding that the trial court’s order was proper and provided adequate protections, the Alabama Supreme Court affirmed the lower court’s ruling. See: Allen v. Barksdale, ___ So.3d ___ (Ala. 2009); 2009 WL 2997601.
Appeal from Montgomery Circuit Court (CV-07-900654).
*1 Richard F. Allen, in his individual capacity and in his official capacity as commissioner (hereinafter referred to as ?the commissioner?) of the Alabama Department of Corrections (?DOC?), appeals from a summary judgment ordering the commissioner to release certain reports regarding prison incidents to the Southern Center for Human Rights (hereinafter ?SCHR?) and Mary Barksdale. We affirm.
On October 30, 2006, SCHR sent a written request to DOC, seeking incident reports regarding assaults and murders of several inmates at Donaldson Correctional Facility. The request was pursuant to the Alabama Open Records Act, § 36-12-40 and -41, Ala.Code 1975. On November 14, 2006, SCHR again requested the reports from DOC. On November 17, 2006, SCHR requested the same reports and also sought reports on the assault of another inmate. On January 4, 2007, DOC responded to SCHR's requests. DOC stated that the information requested was part of an inmate's file and that inmates' files were not considered public records. In support of its contention that the records did not come under the purview of the Open Records Act, DOC cited Tarlton v. United States, 430 F.2d 1351 (5th Cir.1970), and an opinion of the Alabama Attorney General. (Op. Att'y Gen. No. 1979-328).
On March 15, 2007, SCHR sent a letter to the commissioner expressing concerns about the conditions at Donaldson Correctional Facility and relating 50 reports it had received from inmates regarding assaults and other crimes at the facility. SCHR also stated that blocking access to the reports, which it said involved a significant public-health crisis at the facility, might lead to litigation. On April 27, 2007, SCHR met with the commissioner. DOC provided SCHR with a summary of certain incidents from the facility but did not provide the records.
On August 6, 2007, 32-year-old Farron Barksdale, who suffered from schizophrenia, was sentenced to life imprisonment without the possibility of parole for the murder of two police officers. On August 8, 2007, Barksdale was transported to Kilby Correctional Facility. Several days later, Barksdale was found in his cell comatose. On August 21, 2007, Barksdale died. According to the record, the cause and circumstances surrounding Barksdale's death were unknown, and DOC employees had made comments to members of the media speculating on the cause of Barksdale's death.
On August 31, 2007, Mary Barksdale, Farron's mother, on behalf of her son, requested the incident report and other documents from the commissioner regarding Farron's death. On September 7, 2007, the commissioner denied the request, stating that the documents were part of the inmate's file and that there was an attorney general's opinion providing that unless there is a court order, no persons or agencies ?other than criminal justice types? should receive information from an inmate's file.
On September 20, 2007, SCHR, representing six inmates from Donaldson Correctional Facility, along with Mary Barksdale (the inmates and Barksdale's mother are hereinafter referred to as ?the inmates?), sued the commissioner, alleging that he was in violation of the Open Records Act for failure to comply with their request for certain documents. Specifically, the inmates asked for disclosure of all public records, including prison-incident reports regarding Farron Barksdale's death, an assault on inmate Michael Castillo at St. Clair Correctional Facility, and several stabbings, beatings, and deaths at Donaldson Correctional Facility, which were addressed in the complaint. On October 1, 2007, the inmates filed a motion for an injunction, compelling the commissioner to comply with their requests. In the motion, the inmates also sought certain investigative reports they were unable to obtain from any other source as provided for in § 12-21-3.1(c), Ala.Code 1975. On October 24, 2007, the commissioner filed a motion to dismiss, claiming State immunity, State-agent immunity, and discretionary-function immunity. He also argued the inmates failed to state a claim upon which relief could be granted. On October 31, 2007, the attorney general filed an amicus curiae brief in support of the commissioner's motion to dismiss. On November 7, 2007, the Alabama District Attorney's Association also filed an amicus curiae brief in support of the commissioner.
*2 On November 9, 2007, the inmates filed a motion in opposition to the commissioner's motion to dismiss. The trial court held a hearing, and on January 18, 2008, the trial court denied the commissioner's motion to dismiss.
On March 7, 2008, the commissioner filed his answer to the complaint. On April 18, 2008, The Huntsville Times newspaper filed an amicus curiae brief in support of the inmates. On July 31, 2008, the commissioner moved for a summary judgment. On September 15, 2008, the inmates filed a response to the commissioner's motion and a cross-motion for a summary judgment. In their summary-judgment motion, the inmates stated that the commissioner may, on a case-by-case basis, redact information from a document or withhold a document if the commissioner can show that release of the information would cause a specific threat to public safety. Both parties presented depositions and other materials in support of their respective summary-judgment motions.
On October 7, 2008, the trial court denied the commissioner's motion for a summary judgment and granted the inmates' summary-judgment motion. The trial court stated: ?[T]he records requested are ordered produced subject to [the commissioner's] retaining the right to redact sensitive information on a case by case basis if the [commissioner] reasonably believes the release of information will subject a person to specific threat or harm, or if the release will jeopardize a pending criminal investigation or the release will violate any state or federal law.? The commissioner appeals.
? ?A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ?substantial evidence? creating a genuine issue of material fact-?evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.? Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).?
?... Questions of law are reviewed de novo.?
Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006) (quoting Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994)).
*3 ?Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute. Provided however, registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state shall be exempted from this section. Provided further, any parent of a minor child shall have the right to inspect the registration and circulation records of any school or public library that pertain to his or her child. Notwithstanding the foregoing, records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation information concerning critical infrastructure (as defined at 42 U.S.C. § 5195c(e) as amended) and critical energy infrastructure information (as defined at 18 C.F.R. § 388.113(c)(1) as amended) the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public shall be exempted from this section. Any public officer who receives a request for records that may appear to relate to critical infrastructure or critical energy infrastructure information, shall notify the owner of such infrastructure in writing of the request and provide the owner an opportunity to comment on the request and on the threats to public safety or welfare that could reasonably be expected from public disclosure on the records.?
Section 36-12-41, Ala.Code 1975, a part of the Open Records Act, states: ?Every officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees thereof, and such copy is admissible as evidence in like cases and with like effect as the original writing.?
The Open Records Act does not define the term ?public writing.? However, in Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala.1981), this Court stated with regard to the Open Records Act that a ?public writing is such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status of such business and activities can be known by [the] citizens.?
?As used in this article, the term ?public records' shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer.?
*4 Although § 41-13-1 is included in title 41, which regulates the retention and disposal of public records, ?we doubt the Legislature intended to make a distinction between a ?public writing? and a ?public record.? ? Stone v. Consolidated Publishing, supra, 404 So.2d at 680. However, this Court has used the definition in Stone. See Ex parte Gill, 841 So.2d 1231, 1233-34 (Ala.2002); Birmingham News Co. v. Muse, 638 So.2d 853, 854 (Ala.1994); and Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989).
In Stone, this Court stated: ?Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of the government carried on efficiently and without undue interference.? 404 So.2d at 681. In Stone, we also stated that some records kept by public officials may not be within the purview of § 36-12-40, including: ?[r]ecorded information received by a public officer in confidence,  sensitive personnel records,  pending criminal investigations, and  records the disclosure of which would be detrimental to the best interests of the public.? Id. ?It is clear from the wording of § 36-12-40 that the legislature intended that the statute be liberally construed.? Chambers, 552 So.2d at 856.
?Section 36-12-40 is referred to as the Open Records Act (?the Act?). The Act ?is remedial and should therefore be liberally construed in favor of the public.? Water Works & Sewer Bd. of Talladega v. Consolidated Publ'g, Inc., 892 So.2d 859, 862 (Ala.2004). The Act provides, in relevant part, that ?[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.? ?No statute denies this right to inmates or felons.? Ex parte Gill, 841 So.2d 1231, 1233 (Ala.2002). The term ?public writing,? as the Court of Criminal Appeals recently acknowledged, ?has been interpreted to include judicial records.? State v. Martin, 4 So.3d 1196, 1201 (Ala.Crim.App.2008)(holding that trial exhibits are public records and that, therefore, a requester ?was not required to establish good cause before he was entitled to inspect the trial exhibits').?
In the present case, the inmates are seeking copies of records documenting incidents occurring inside the prison system. According to the deposition of Paul Yarbrough, director of the intelligence and investigations division (hereinafter ?the I & I division?) of DOC, corrections officers generally write incident reports that document anything that happens in a correctional facility. Incident reports may be written as a result of inmates gambling, a fistfight, an inmate failing a urine test, or a search of an inmate. More serious incidents, such as an inmate's death, may be forwarded to the I & I division. The investigation by the I & I division results in a report. Yarbrough testified that investigations by the I & I division are usually completed within 30 days of the day they are received. He stated that the I & I division investigated Farron Barksdale's death and that the investigation was still pending and had been pending for nine months at the time of the deposition. Yarbrough had been instructed by his counsel not to testify as to whether a report had been generated in the investigation of Barksdale's death. We note that there was evidence in the record indicating that certain serious assaults, such as stabbings involving inmates, were not investigated by the I & I division and that in those cases only an incident report was generated.
*5 The commissioner testified that no incident reports generated by employees of DOC are made available to the public. When asked if there was a ?blanket? policy prohibiting the disclosure of incident reports under the Open Records Act, he responded that it was DOC's policy not to release any incident reports.
We note that § 14-3-9(a), Ala.Code 1975, provides that corrections officers have a duty to report to the I & I division all violations of the law relating to prisons that may come to their attention. Section 14-3-9 further provides that, where applicable, the I & I division shall refer such violations to the appropriate district attorney.
?Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure.?
?[T]he party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them.? Chambers, 552 So.2d at 856-57.
We are mindful that this Court in Stone recognized a pending criminal investigation as an exception to the Open Records Act, and that in 1998 the legislature adopted § 12-21-3.1 as a statutory exemption.FN1 We note that there are numerous specific statutes exempting from public inspection certain records, including, but not limited to, juvenile and youthful-offender records, identity of Medicaid recipients, records of a banking board, hospital records produced by subpoena, probation reports (unless ordered released by a court), reports of certain diseases, and tax returns and financial statements. See, respectively, § 12-15-101 et seq., Ala.Code 1975; § 22-6-9, Ala.Code 1975; § 5-3A-11, Ala.Code 1975; § 12-21-6, Ala.Code 1975; § 15-22-53(b), Ala.Code 1975; § 22-11A-2, -14 and -22, Ala.Code 1975; and § 40-2A-10, Ala.Code 1975. However, we disagree with the commissioner that all incident reports generated by DOC employees are exempt from the Open Records Act under § 12-21-3.1(b).
 Headnote Citing References Headnote Citing References This Court made clear that in relation to the Open Records Act, the judicially created exceptions set out in Stone, supra, must be narrowly construed. See Ex parte Department of Transp., 757 So.2d 371, 374 (Ala.1999) (?The right of the public to inspect and copy a ?public writing? is broad and the exceptions thereto are narrow and limited.?); Chambers v. Birmingham News, 552 So.2d at 856 (holding that the exemptions set forth in Stone should be strictly construed). Although § 12-21-3.1 is a statutory exemption, it is nonetheless an exception to the Open Records Act and thus should also be narrowly construed. This conclusion is in keeping with the broad general policy of open government. The document reflecting the work of government belongs to the public, and, although exceptions to disclosure of such documents are necessary, any exceptions should be narrowly construed. In other words, the Open Records Act favors disclosure, and exemptions to that Act, including those created by statute, must be narrowly construed.
*6  Headnote Citing References Section 12-21-3.1(b) clearly exempts law-enforcement investigative reports and related material from public disclosure. In this case, the incident reports, which identify occurrences within a prison, must be compared to an investigative report prepared by the I & I division. An incident report documents any incident-from the mundane to the serious-whereas an investigative report by the I & I division reflects a close examination of an incident and a systematic inquiry and may lead to criminal prosecution. The commissioner's refusal to release incident reports to the general public is not protected by § 12-21-3.1(b). In contrast to an incident report, an investigative report produced by the I & I division would be protected by § 12-21-3.1(b), as the inmates concede. Even the legislature, in requiring under § 14-3-9 that certain crimes be reported to the I & I division and that the I & I division could then determine if the violation should be referred to a district attorney, did not consider all incident reports as synonymous with investigative reports.
In addition to certain incident reports, the inmates also seek certain investigative reports, and the trial court ordered that the requested records be produced. The inmates argue that although some investigative reports are protected from disclosure under § 12-21-3.1(b), the inmates are entitled, under § 12-21-3.1(c), Ala.Code 1975, to the investigative reports they have requested.
?(c) Under no circumstance may a party to a civil or administrative proceeding discover material which is not authorized discoverable by a defendant in a criminal matter. Noncriminal parties may upon proper motion and order from a court of record: Secure photographs, documents and tangible evidence for examination and copying only by order of a court imposing such conditions and qualifications as may be necessary to protect a chain of custody of evidence; or protect the prosecutors', law enforcement officers', or investigators' work product; or to prevent the loss or destruction of documents, objects, or evidence. Such discovery order may be issued by a court of record upon proof by substantial evidence, that the moving party will suffer undue hardship and that the records, photographs or witnesses are unavailable from other reasonable sources.?
The inmates argue that the investigative reports of the I & I division are completely unavailable to them without a subpoena and that the information contained in the investigative reports are unavailable by any other means because inmate victims are often unable to provide critical information including the dates, names of witnesses, names of perpetrators, and the punishment taken against the perpetrators. They argue that several witnesses to the incidents in the complaint as to which the inmates seek reports are unknown and unknowable except through the investigative reports. The inmates argue that they have limited access to information within the prison by any other means and that prison personnel are unlikely to make statements for fear of reprisal or potential legal liability.
?Undue hardship might include, among other things, the unavailability of a witness whose statement cannot be obtained from another source; the lack of access to patients who had given statements to the BSI investigators or the impossibility of obtaining the equivalent of those statements from patients because of a patient's physical or mental deterioration; the refusal of patients or hospital staff to make a statement to [the employee] for fear of reprisal by the hospital; or the refusal of patients or staff members or even former staff members to speak to [the employee] out of fear of self-incrimination.?
 Headnote Citing References Headnote Citing References Rather then respond to the inmates' argument regarding undue hardship under § 12-21-3.1(c), the commissioner argues that disclosure of all incident reports and all investigative reports is barred by § 12-21-3.1(b). Failure to argue an issue waives that issue and precludes its consideration on appeal. Boshell v. Keith, 418 So.2d 89 (Ala.1982).
*8 ?Q. Okay. In your responses to [the inmates'] interrogatories you state that, ?There are incidents where inmates and employees have been threatened due to incident reports being written or investigations being conducted.? Tell me about one such incident.
?A. That's just been told to me. I don't-I can't give you an incident.
?Q. Okay. So you're not aware-you are not aware of any such incident; is that correct?
?Q. Who-who told you that?
?Q. Okay. So your lawyers-and did they tell you about the specific incident or did they tell you that there were incidents that occurred?
?A. They just told me it happens from time to time.?
The commissioner, as the party refusing to disclose the requested records, had the burden of proving that the records sought are within an exception and warrant nondisclosure. His testimony does not support his contention that disclosure of the records impacts prison security. Moreover, the trial court's order allows the commissioner to redact information that would subject a person to specific threat or harm or if the release of the information will jeopardize a pending criminal investigation or violate any state or federal law.
?[t]here would also be a chilling effect on the investigative process by the correctional officers and the I & I division if they believed every incident report would be subject to public access under the Open Records Act. The investigative process would possibly not be as accurate or extensive as it is presently. Officers would not pursue leads with vigor as they do now. Also, officers would be less likely to fully and completely report an incident or the security measures they took to remedy an incident or breach in security. This would impact how a supervisor monitors the trends within his/her institution.?
(Commissioner's brief, pp. 26-27.) Suffice it to say, we find it hard to believe that a corrections officer would neglect his or her job because the public would have access to certain records reflecting actions of the officer as a government employee.
 Headnote Citing References Citizens are entitled to information regarding the affairs of their government. Alabama's Open Records Act first appeared in the 1923 Code of Alabama and represents a long history of openness. The Open Records Act is remedial and should therefore be construed in favor of the public. The statutory and judicially created exceptions generally protect an individual's privacy, the integrity of a criminal investigation, public safety and security, or privileged information. The exceptions to the Open Records Act should be strictly construed, because the purpose of the Open Records Act is to permit the examination of public writings and records. The trial court's order permitting redaction by the commissioner of any sensitive information in the requested records safeguards any interest the commissioner has in protecting inmates or DOC employees from a specific threat or harm. Accordingly, the judgment of the trial court is affirmed.
COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.
FN1. In Water Works & Sewer Board of Talladega v. Consolidated Publishing, Inc., 892 So.2d 859 (Ala.2004), Consolidated Publishing sued the Water Works Board of the City of Talladega and the custodian of its records to obtain certain records pursuant to the Open Records Act. The Board argued that because it was a public corporation, it was not subject to the Act. The trial court held that the Board was subject to the Act but that some of the records sought were excluded from Act because those records involved pending criminal investigations. Both parties appealed. This Court held that the Board was subject to the Act because it performed a municipal function and that the employees of the Board were subject to the Act. We went on to address whether certain records were properly excluded. This Court stated that it was unclear what records the trial court exempted from disclosure under the Stone pending-criminal-investigation exemption; however, the records exempted appeared to include documents not covered by § 12-21-3.1(b). We remanded the cause for the trial court to consider whether those documents were included in the documents exempted under § 12-21-3.1.


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The invocation of contractual arbitration provisions has long been considered an effective defense to class actions regarding a form contract. By invoking a contractual arbitration clause, defendants may obtain, at minimum, a stay of the judicial proceedings pending arbitration. See, e.g., 9 U.S.C. § 3. Furthermore, courts have dismissed an action when all of the underlying claims are arbitrable. See, e.g., Blair v. Scott Specialty Gases, 283 F.3d 595, 600 (3d Cir. 2002).
As the law evolves, many representative plaintiffs have sought to preserve class actions in the face of arbitration clauses. One argument contends that any arbitration provision requiring that a claimant pay part of the costs of arbitration is unconscionable because it limits the claimant's right of access to the arbitral forum, particularly when the costs of arbitration to each individual claimant have been shown to meet or exceed the recoveries available to the claimant. This article analyzes how arguments regarding the "prohibitive costs" of arbitration may pose a significant obstacle to the ability to invoke an arbitration clause as a defense to class actions.
The impact of a claimant's obligation to pay costs upon the enforceability of an contractual arbitration provision was addressed by the U.S. Supreme Court in Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000). In Randolph, the Court recognized that as "the existence of large arbitration costs could preclude a litigant ... from effectively vindicating her ... rights in the arbitral forum," a party's obligation to bear substantial arbitration costs could compel the invalidation of an arbitration agreement. Id. at 90-91. However, the Court emphasized that when "a party seeks to invalidate an arbitration agreement on the grounds that such an agreement would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs." Id. at 91-92.
Courts applying Randolph have held that the mere existence of language in an arbitration agreement requiring a claimant to share the costs of arbitration is ordinarily insufficient to demonstrate that these costs will be "prohibitive." See, e.g., Musnick v. King Motor Co. of Fort Lauderdale, 325 F.3d 1255, 1260 (11th Cir. 2003); Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549, 556 (4th Cir. 2001); but see Ting v. AT&T, 319 F.3d 1126, 1151 (9th Cir. 2002) (discussed infra). The preferred approach is to conduct a "case-by-case analysis that focuses, among other things, upon the claimant's ability to pay the arbitration costs, the expected cost differential between arbitration and litigation in court, and whether that cost differential is so substantial as to prevent the bringing of claims." e.g., Bradford, 238 F.3d at 556.
Where courts have found the cost of arbitrating claims brought by members of a putative class to be "prohibitive," they have rendered an arbitration provision unconscionable. For example, the U.S. Court of Appeals for the Ninth Circuit recently held in Ting, supra, an arbitration provision requiring putative class members to share the costs of arbitration was unconscionable. The Court held that "parties who agree to arbitrate" are "entitled to basic procedural and remedial protections," including "the assurance that an individual 'need not 'pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitrators' forum.'" Ting, 326 F.3d at 1151 (quoting Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1485 (D.C. Cir. 1997)).
While few courts have echoed the Ninth Circuit's rigid view of fee-splitting provisions in arbitration clauses, some courts have refused to enforce arbitration clauses in the context of putative class actions on the grounds that the typical cost of arbitration to the class claimant would be excessive. A recent example is Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003), in which the U.S. Court of Appeals for the Sixth Circuit held that an arbitration cost of only $1,622 was "prohibitive." Id. at 669. While recognizing that "[i]n the abstract, this sum may not appear prohibitive," the Court examined the cost within the context of the underlying case of employment discrimination. Noting that the claimant must continue to pay for the "necessities of life in contemporary society despite losing her primary, and most likely only source of income," the Court held that as a claimant would be required to risk "one's scarce resources in the hopes of an uncertain benefit," it was likely that "a substantial number of similarly situated persons would be deterred from seeking to vindicate their statutory rights under these circumstances." Id. at 669-70.
While general attacks on the "prohibitive costs" of arbitration have met with some success in the class action context, the high standard of proof established by the Supreme Court in Randolph may limit their applicability. As demonstrated by the cases above, the ability to prevail on such an argument may depend upon the relative poverty of the class representative. A more effective approach has involved a comparison of the costs of arbitration with the relatively small recoveries available to class action claimants. Even minimal arbitration costs have been held to render an arbitration clause unconscionable when these costs have been found to approach or exceed the damages sought by each claimant in a class action. Courts have concluded that such a result would effectively leave each claimant without a remedy if the arbitration clause was enforced.
One of the earliest cases to reach such a holding was Patterson v. ITT Consumer Financial Corp., 18 Cal. Rptr. 2d 563 (Ct. App. 1 Dist. 1993), which concerned a putative class action regarding purportedly wrongful practices in the making and handling of loans by a finance company. The finance company filed a motion to compel arbitration based upon an arbitration clause in the loan contracts. While the claimants could obtain arbitration based solely on submitted documents without making a payment, claimants were required to make a prepayment of, at minimum, $850 in order to obtain a hearing before the arbitrator. The California Court of Appeals for the First District observed that "[t]he likely effect of these [arbitration] procedures is to deny a borrower against whom a claim has been brought any opportunity to a hearing ... unless the borrower has considerable legal expertise or the money to hire a lawyer and/or prepay substantial legal fees." Id. at 566. The Court noted that "[t]he latter is especially unlikely given the small dollar amounts at issue ... [i]n a dispute over $2,000 it would scarcely make sense to spend a minimum of $850 to obtain a participatory hearing." Id. at 566. Therefore, the Court determined that as the arbitration procedure at issue was "oppressive when applied to unsophisticated borrowers of limited means in disputes over small claims," the arbitration clause in the loan contracts was unconscionable and unenforceable. Id. at 566-67. The Patterson court's analysis was adopted by the Ohio Supreme Court in Williams v. Aetna Fin. Co., 700 N.E.2d 859 (Ohio 1998), in which the Court held an arbitration clause that was "virtually identical" to the clause under consideration in Patterson to be unconscionable.
In Leonard v. Terminix Intern. Co., L.P., 854 So.2d 529 (Ala. 2002), the Alabama Supreme Court considered whether an arbitration clause in pest control contracts operated to preclude a class action regarding the alleged violation of statutory requirements regarding the performance of such contracts. The representative plaintiffs argued that if the arbitration clause was enforced, the "small dollar value" of the plaintiffs' claim (less than $500) would make it unfeasible to submit the claim to arbitration, given the plaintiffs' obligation to pay approximately $1,150 per day in arbitration expenses, as well as the cost of retaining an attorney on an hourly basis. Id. at 535. As the plaintiffs were restricted "to a forum where the expense of pursuing their claim far exceeds the amount in controversy," the Court held that "by foreclosing the [representative plaintiffs] from an attempt to seek practical redress through a class action and restricting them to a disproportionately expensive individual arbitration," the arbitration clause was unconscionable and unenforceable. Id. at 539.
A recent Pennsylvania Superior Court ruling demonstrates that no arbitration fee may be too small to avoid a finding of unconscionability. In McNulty v. H&R Block, Inc., 843 A.2d 1267, 2004 PA Super 45, 2004 WL 351782 (Pa. Super. Ct. Feb. 26, 2004), the issue was whether a contractual arbitration provision could be invoked as a defense to a class action regarding fees charged by the tax preparation service H&R Block for the electronic filing of tax returns. The clause in question required the claimant to pay an initial $50 fee for the arbitration and to cover any costs in excess of $1,500.
Finding the arbitration clause unconscionable, the Court emphasized a previous holding that "if the costs associated with arbitration of a single claim would operate to preclude a claimant from pursuing a remedy, then the enforcement of the provision would be unconscionable." Id. at *5 (citing Lytle v. CitiFinancial Services, Inc., 810 A.2d 643, 667-68 (Pa. Super. Ct. 2002)). Observing that even the minimum $50 charge outweighed the individual damages at issue, the Court held that the case presented "a situation where the costs of arbitration, minimal though they may seem, work to preclude the individual presentation of claims." Id. Accordingly, the Court held that "the enforcement of the arbitration provision would work to deny the allegedly injured parties access to justice and is therefore unconscionable." Id.
As noted by the Leonard court, "the impracticality of pursuing a claim for a small amount of money at a cost in excess of the value of the claim is just as much an obstacle to the wealthiest member of society as it is to a pauper." Leonard, 854 So. 2d at 537. As the wealth of the representative plaintiff is not a factor, arguments based upon this "impracticality" may prove to be the most persuasive means of attacking the purportedly "prohibitive" costs of mandatory arbitration. Many consumer class cases concern individual awards that may pale in comparison to an ordinary allocation of arbitration costs to a plaintiff. In light of this practical reality, arguments regarding the economic infeasibility of pursuing individual claims through arbitration may constitute a powerful response to any attempt to invoke compulsory arbitration as a defense.
A viable response to this argument exists. By agreeing to cover or advance the entire cost of arbitration, defendants may quash arguments regarding the "prohibitive cost" of compulsory arbitration. See, e.g., Pitchford v. AmSouth Bank, 285 F. Supp. 2d 1286, 1296 (M.D. Ala. 2003). Corporate counsel may be well-served by considering whether this approach is in the best interests of their employer. While the costs of arbitration may be significant, they may be preferable to the costs of defending a large-scale class action.

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Bruns v. SFX Entertainment, Inc, et al.
John Bruns alleged that he was injured on June 28, 2002, while working as a “climber” repairing a cellular phone tower on the outside of the Jones Beach Theatre as an employee of Island Mobile. As Mr. Bruns was rappelling (descending) to the ground he claims that the climbing equipment failed causing him to fall to the ground. He claimed that he sustained significant fractures to his lower extremities requiring surgery, suffers from Reflex Sympathetic Dystrophy and is permanently and totally disabled.
Plaintiff commenced suit against the licensee of the building housing the theatre(which is owned by the State of New York), referred to as the “Clear Channel defendants,” the licensee of the cell towers affixed to the building, Crown Communications, the cell company on whose tower plaintiff was working, Nextel Communications, and a cleaning company which plaintiff alleged was engaged in power washing in the vicinity of where he fell, Sparkling Clean. At the close of discovery, each party moved for summary judgment.
Plaintiff sought summary judgment against Crown and Nextel on his Labor Law claims. Most notably, plaintiff argued that “the sole proximate cause of [his] accident was the failure of the defendants to provide [him] with adequate and necessary safety equipment. Crown and Nextel, in opposition and in support of their own motions, argued that the Labor Law did not apply, primarily because the plaintiff was engaged in “routine maintenance” work and not “repair” work.
even if power washing was being done, there was no proximate cause.
Nextel claimed that it played no active role in the plaintiff’s accident, had no supervisory control over plaintiff’s work and that plaintiff was engaged in “routine maintenance” rather than repair work, the latter of which is required to establish labor law liability. Nextel also argued that plaintiff was a recalcitrant worker and that his failure to follow the instructions of his supervisors was the sole proximate cause of his injury. Nextel submitted affidavit from plaintiff’s direct supervisor and a co-worker, both of whom stated that the supervisor instructed plaintiff not to rappel down the side of the theatre, and that plaintiff could have easily stepped up and over the wall after he completed his work.
Crown’s motion for summary judgment was based on the same theories as that of Nextel, although it did not argue the recalcitrant worker doctrine. It did, however, seek judgment on its cross-claims for contractual indemnification and breach of contract for failure to procure insurance.
Sparkling Clean argued the absence of authority to supervise or control plaintiff’s work (it was relatively clear that Sparkling Clean was not a viable Labor Law defendant) and the failure of proof.
Justice Rosalyn Richter dismissed the Labor Law 200 and common law negligence claims as against all defendants, focusing on the absence of actual supervision and control over the plaintiff's work. In this regard, the court noted that possessing general supervisory authority was insufficient to establish common law liability (Section 200 is merely a codification of common law negligence obligations.) The court also gave short shrift to the argument that the alleged power washing created a hazardous condition.
Most importantly, the court held that none of the Clear Channel defendants was not an "owner" as defined under the Labor Law, noting that none exercised any control or authority over the cell phone site - which the evidence shows the state had licensed directly to Crown.
In sum, the court dismissed all claims and cross-claims against the Clear Channel defendants and Sparkling Clean - and several of the claims against Nextel and Crown - leaving only the Labor Law 240(1) claims against those two entities. The court did, however, granted conditional indemnity on behalf of Crown against Nextel. Effectively, the case will proceed as a section 240(1) case against Nextel.
Steven H. Rosenfeld and Tara C. Fappiano represented the Clear Channel defendants.
Brookner v. New York Road Runners Club, Inc., New York Road Runners Foundation, Inc.
In Brookner v. New York Road Runners Club, Inc. New York Road Runners Foundation, Inc. and The City of New York, Justice Michael A. Ambrosio of the Supreme Court, Kings County, dismissed all claims against the defendants based on a release signed by the plaintiff, who claimed that he was injured while running in the 2004 New York City Marathon..
The court relied on Stuhlweissenburg v Town of Orangeburg et al., 223 A.D.2d 633, 636 N.Y.S.2d 853 (2d Dep’t 1996), wherein the plaintiff was injured when she slid into third base while playing softball at the Veterans Field in Orangeburg. The Town moved for dismissal based on plaintiff’s execution of a release. The Appellate Division, Second Department, in affirming the lower court’s decision, held that the plaintiff failed to submit evidence that that she paid a fee to the Town “for the admission to, or use of, [its] softball field.” The court also relied on Kapsch v. New York Road Runners Club, Index Number 10447/97 (Supreme Court, New York County, December 13, 1998) and Engelson v. Susan Komen Breast Cancer Foundation, Inc., et al, Index Number 121598/00 (Supreme Court, New York County, April 6, 2001), both of which held that the release signed by the plaintiff was not subject to General Obligations Law §5-326 since the plaintiff paid a fee to the defendant to participate in the marathon and not to Central Park.
Lastly on this point, the court noted that the legislative history of General Obligations Law §5-326 establishes that “it was a consumer protection measure based upon an assessment that members of the general public patronizing proprietary recreational and amusement facilities are commonly either entirely unaware of the existence of exculpatory clauses in admission tickets or membership applications or are unappreciative of the legal consequences thereof.” Owen v. R.J.S. Safety Equipment, Inc., 169 A.D.2d 150, 156, 572 N.Y.S.2d 390 (3d Dep’t 1991) citing Governor’s Bill Jacket L 1976, ch 414, § 1.
Plaintiff further argued that the waiver and release was unenforceable because defendants’ conduct rose to a level of gross negligence since the Road Runners Club allowed a record number of runners to enter the marathon, creating a hazardous and dangerous crowding condition. The court rejected this argument as well finding that plaintiff’s allegations did not rise to the level of gross negligence.
Steven H. Rosenfeld represented the defendants.
Judge Thomas Phelan, sitting in Supreme Court, Nassau County dismissed a lawsuit commenced by a patron who allegedly participated in a melee whereby a security supervisor employed by Sterling Mets, L.P. was struck in the head with a bottle and allegedly misidentified the patron as the individual who threw the bottle.
Peter DiMarinis commenced a lawsuit against Sterling Mets, L.P. d/b/a New York Mets and Robert Thompson, arising out of an altercation occurring at Shea Stadium on May 26, 2004. The plaintiff alleged that he observed an altercation between a group of fans and several of Sterling Mets’ security guards, including defendant Robert Thompson. The plaintiff further alleged that after leaving Shea Stadium that night, Mr. Thompson accosted and physically detained him and identified him to police officers as one of the patrons who assaulted Mr. Thompson while knowing that the identification was false. The identification lead to the plaintiff’s arrest and charges of felony assault in the second degree, however, on July 28, 2004 the charges against the plaintiff were adjourned in contemplation of dismissal. The plaintiff’s verified complaint asserted causes of action for false imprisonment, malicious prosecution, abuse of process and battery. Early in the litigation, the plaintiff voluntarily discontinued his battery cause of action.
Evidence demonstrated that: (1) the criminal action against the plaintiff resulted in an adjournment in contemplation of dismissal; (2) neither Sterling Mets nor Mr. Thompson commenced a civil or criminal proceeding against the plaintiff but rather simply cooperated with law enforcement; (3) neither Sterling Mets nor Mr. Thompson detained or arrested the plaintiff; and (4) neither Sterling Mets nor Mr. Thompson played an active role in the plaintiff’s arrest, rather, Mr. Thompson only provided information to the police.
Sterling Mets and Robert Thompson moved for summary judgment to dismiss the plaintiff’s verified complaint in its entirety. In opposition to defendants’ motion, the plaintiff made an unsubstantiated contention that Mr. Thompson’s identification was done “in bad faith” to purposefully misidentify the plaintiff because he took photographs of the altercation. The court granted defendants’ motion and dismissed all causes of action against Sterling Mets and Robert Thompson.
With regard to the plaintiff’s false imprisonment cause of action, the court held that there is no liability for only giving information to legal authorities who are left to use their own judgment whether an arrest should be made or criminal charges filed, citing to Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999). Further, “[a] plaintiff must demonstrate that the defendant ‘played an active role in the prosecution, such as giving advise and encouragement or importuning the authorities to act.’” Du Chateau v. Metro-North Commuter Railroad Co., 253 A.D.2d 128, 688 N.Y.S.2d 12 (1st Dep’t 1999). The court concluded that the evidence did not reflect any such active encouragement or importune by Sterling Mets or Robert Thompson to foster the plaintiff’s arrest or imprisonment by the police.
The court dismissed the plaintiff’s malicious prosecution cause of action because, among other things, in order to succeed on a malicious prosecution cause of action, the plaintiff must prove termination of the criminal proceeding in favor of the accused. In this case, the criminal proceeding against the plaintiff was adjourned in contemplation of dismissal and then dismissed. The court stated that “[t]ermination in favor of the accused is only satisfied when the case has been disposed of on the merits finding the accused innocent,” citing to Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765 (1983). Here, the court correctly stated that “[a]n adjournment in contemplation of dismissal is not the equivalent of a finding of innocence, and thus, it does not support a cause of action for malicious prosecution.” Champagne v. Shop Rite Supermarkets, 203 A.D.2d 410, 610 N.Y.S.2d 559 (2d Dep’t 1994).
Finally, the court held that the plaintiff’s abuse of process cause of action must be dismissed because by solely reporting a crime to police and giving testimony by Sterling Mets and/or Robert Thompson was not sufficient because they did not issue process nor use process “in a perverted manner to obtain a collateral objective.” Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999), quoting Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466 (1984).
Carla Varriale represented Sterling Mets, L.P. and Robert Thompson.
Israel v. Springs Industries, Inc. and Dundee Mills, Inc.
Magistrate Judge Robert Levy, sitting in the Eastern District of New York, has delivered a significant legal victory to a major textile manufacturing company, excluding a significant portion of the scientific testimony being presented by the plaintiffs in a products liability case against the corporation.
The defendants Springs Industries, Inc. and Dundee Mills, Inc. were sued by a boy and his family, who alleged that an incorrect label on a set of sheets severely exacerbated the child’s skin condition and allergy and led to severe medical problems for the boy.
To support their case, the plaintiffs retained three testifying experts. HRRV, representing the defendants, moved to exclude the experts’ testimony, and the motion was granted almost in its entirety.
Tara C. Fappiano and represented the defendants.
Magistrate Judge Levy held that the life care plan authored by the plaintiffs’ expert physiatrist was inadmissible since it was based on unreliable information. The plaintiffs’ expert economist had projected the damages for lost earnings and future costs of care to exceed $20 million. However, given the exclusion of the life care plan, the proffered economist had no basis upon which to calculate those damages. The testimony of the plaintiffs’ psychological expert was also excluded as to the issue of causation.
Fappiano added that she hoped the decision would encourage more manufacturers and their insurers to stand up to frivolous lawsuits and not settle out of court prematurely.
“We have seen this happen time and time again, where our clients are able to successfully defend themselves against litigation that rests on unsubstantiated expert opinions,” Fappiano said.
In Kasper v. The City of New York and Century Road Club Association, Justice Martin Solomon of the Supreme Court, Kings County, granted the motion for summary of judgment of defendant Century Road Club Association (“CRCA”), dismissing all claims against it, based on a release signed by plaintiff, who alleged to have been injured while participating in a bicycle instructional race sponsored by CRCA.
Plaintiff alleged that while participating in the bicycle race, he was caused to be injured when his bicycle struck a ditch in the roadway within Central Park. Prior to participating in this event, the plaintiff signed a USA Cycling, Inc. release and waiver, releasing the defendant CRCA from any and all liability arising out of his participation in the race. USA Cycling was not named as a defendant.
CRCA moved for summary judgment arguing that the plaintiff was precluded from commencing an action since he signed a release and waiver prior to participating in the event. In opposition, plaintiff argued that the release and waiver was void under General Obligations Law § 5-326, which generally voids exculpatory agreements entered into in connection with the payment to an “owner or an operator “ of a fee for admission to a “place of amusement and recreation.” The plaintiff further argued that he never released CRCA from liability since it was never specifically referenced in the release.
The court, in dismissing the action, held that the release was clear and expressed in unequivocal language the intent to relieve USA Cycling, Inc and its affiliates of all liability for personal injuries arising from its negligence. The Court further held that CRCA was in fact covered under the release since it is an affiliate of USA Cycling, Inc and affiliates are specifically referenced within the release.
Steven H. Rosenfeld represented the Century Road Club Association.
In Venduras v. Reebok Sports Club, Justice Marcy Friedman of the Supreme Court, New York County, dismissed all claims against the Reebok Sports Club. Plaintiff, as a condition of obtaining guest status at the health club, signed a release and waiver in which he released the defendant from any and all liability arising out of the plaintiff’s use of the facility. The plaintiff claims that he slipped and fell on a wet substance at the club.
The defendant moved for summary judgment arguing that the plaintiff was precluded from commencing an action since he signed a release prior to entering the facility. In opposition, plaintiff argued that General Obligations Law §5-326 rendered the release void as against public policy and that defendant failed to properly authenticate the signature on the release.
In granting defendant’s motion for summary judgment, the court found that General Obligations Law §5-326 did not apply since the plaintiff did not a pay fee to use the facility. (Citing Chieco v. Paramarketing, Inc. 228 A.D.2d 462 (2d Dep’t 1996); Stuhlwessenbrug v. Town of Orangetown, 223 A.D.2d 633 (2d Dep’t 1996)). The court also held that the plaintiff's attorney's affirmation, which challenged the authenticity of the plaintiff's signature, was not "based on personal knowledge of the facts [and] it is without probative value" (citing Zuckerman v. City of New York 49 N.Y.2d 557, 564 (1980)).
Steven H. Rosenfeld and represented the defendant.
In Angellilo v. Splish Splash, plaintiff alleged that as she was leaning against a fence surrounding the "Unfaithful" geyser attraction located at the Splish Splash Water Park, another patron "of substantial age" sat on the fence, causing it to collapse and the plaintiff to fall to the rocks below, sustaining injury to her shoulder, neck and back.
The plaintiff alleged that Splish Splash was negligent in the maintenance of the fence surrounding this attraction. Based upon the testimony of Robert Amoruso of Splish Splash, the park was not aware of any problems with the fence and Splish Splash staff were instructed to make sure patrons did not sit, stand or lean on fences. Splish Splash argued that it lacked the requisite notice, as no complaints had ever been made regarding the fence surrounding "Unfaithful". Further, we argued that the unidentified patron sitting on the fence was an intervening, superseding cause of the plaintiff's accident.
Plaintiff attempted to argue that there were defects in the fence which caused it to break. She attempted to obtain records for all wood purchased for Splish Splash over a seven year period; a request which the court deemed to be broad and excessive.
Justice Daniel Martin of the Supreme Court, Nassau County held that plaintiff failed to meet her burden of introducing a question of fact, denied the plaintiff's prayer for further relief (for non-party depositions) and dismissed the case.
Carla Varriale represented Splish Splash.
Alois v. Engel Construction, et al.
In Alois v. Engel Construction et al., the court granted summary judgment dismissing the third-party complaint against D'Aprile, Inc, a masonry subcontractor hired to perform work at a construction site in East Meadow, New York. In that case, the plaintiff, a laborer working for subcontractor Atlas Concrete, was injured when he slipped and fell on construction debris on a temporary ramp at the front entrance to a building under construction. The plaintiff filed suit against the owner of the location and the general contractor hired to perform construction thereat. Thereafter, the general contractor, Engel Construction, commenced a third-party action against multiple subcontractors at the project, including D'Aprile.
The third-party action by Engel Construction against D'Aprile was dismissed on the grounds that D'Aprile was not performing work at the location on the date of the occurrence, had not been working anywhere near the area of the incident and could not have created or contributed to the construction debris that allegedly caused the plaintiff's occurrence.
In Cycan v. Bullitts, Inc., et. al., plaintiff alleged that she slipped and fell on an icy condition in a parking lot, owned by defendant Port High Properties LLC. Defendant Salerno Bros. had an oral contract with Port High Properties LLC for the removal of snow from the parking lot. Defendant Bullitts, Inc. was a tenant at the subject premises.
The plaintiff testified that the incident occurred in the parking lot of the premises. Based upon the testimony of Joseph Canigiani of Port High Properties LLC, the responsibility of maintaining the parking lot, including snow removal was that of the landowner, Joseph Canigiani and Port High Properties LLC. As stated in a lease between Bullitts, Inc. and Port High Properties LLC., the only responsibility of Bullitts, Inc. was to shovel the sidewalk abutting the property. Bullitts, Inc. argued that it did not owe a duty of care to the plaintiff. In the alternative, the plaintiff argued that employees of Bullitts, Inc. negligently deposited snow from its sidewalk into the common parking lot.
The court held that it was clear that the landlord alone took responsibility for maintaining the common parking lot by hiring a plowing company. Therefore, Port High Properties LLC, not Bullitts, Inc., owed a duty of care to the plaintiff. The court also stated that the plaintiff failed to offer supporting evidence that employees of Bullitts Inc. negligently placed snow in the parking lot.
In Bernhardt v. The Morgan Contracting Company, the plaintiff claimed that she was walking on the sidewalk of the side entrance to the Medical Arts Pavilion at Staten Island University Hospital when she fell on an uneven portion of sidewalk. She brought an action against The Morgan Contracting Company alleging that the sidewalk had been negligently constructed.
In support of its motion for summary judgment, the defendant submitted evidence establishing that it was neither responsible for nor performed any work at the Medical Arts Pavilion or the sidewalks around the building, even though it had done work elsewhere at the hospital. Justice Marilyn Diamond stated that the plaintiff failed to submit any proof to support her claim that the defendant was in any way responsible for the condition of the sidewalk where she allegedly fell and, therefore, granted the defendant’s motion.
Tara C. Fappiano represented The Morgan Contracting Company.
In Scandale v. Bullwinkle's Family Food and Fun, LLC, plaintiff alleged that she slipped and fell on a "mushy hot dog bun" in the restaurant located at Bullwinkle's.
Plaintiff testified that she had been waiting for the table for over forty minutes before sitting down with her friends and their children. They had been seated for forty-five minute when the plaintiff attempted to exit the booth and slipped on a hot dog bun underneath the bench. The only responsibility the park had was to keep the restaurant and booth clear of debris. Due to the fact that the plaintiff had been seated in the both for a significant period of time, the porters were unable to clear debris from the booth where the plaintiff was seated. Further, plaintiff failed to demonstrate that the alleged hot dog bun was not from her meal. Therefore, we argued that Bullwinkle's had no notice of the allegedly dangerous condition and that plaintiff had failed to introduce evidence showing that said condition existed for a sufficient length of time such that Bullwinkle's employees were or should have been aware of it.
The Supreme Court, Suffolk County held that plaintiff failed to demonstrate that Bullwinkle's owed a duty to plaintiff and that the hot dog bun had been under the both for such a length of time that Bullwinkle's employees should have cleared it. The court also stated that the plaintiff failed to offer supporting evidence that Bullwinkle's employees were negligent and that the evidence she provided was not sufficient to defeat a motion for summary judgment.
Carla Varriale represented Bullwinkle's Family Food and Fun, LLC.

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