Daniel Fabricio ROSERO v. Lisa BLAKE.
Kathleen Murphy, Raleigh, for plaintiff-appellant. Sally H. Scherer, Raleigh, for defendant-appellee. The Sandlin Law Firm, by Deborah Sandlin, Raleigh, on behalf of the North Carolina Academy of Trial Attorneys, amicus curiae.
The questions presented for review are whether the North Carolina common-law rule that custody of an illegitimate child presumptively vests in the mother has been abrogated by statutory and case law and whether that presumption violates the federal and state Constitutions. We conclude that the common-law rule has been abrogated by statute, and accordingly, we reverse the decision of the Court of Appeals.
The parties to this action are the natural parents of Kayla Alexandria Rosero, born 20 March 1996. Following brief sexual encounters between the parties in 1995, plaintiff, Kayla's father, moved to the state of Oklahoma, where he resided at the time of Kayla's birth. Kayla's mother, defendant, resided at all times in North Carolina with Kayla and Kayla's two older, half brothers. The parties were never married to each other.
Upon being informed of Kayla's birth, first by defendant and then by the Wake County Child Support Enforcement Agency, plaintiff submitted to a blood test, which proved that he was Kayla's father. Plaintiff acknowledged paternity on 3 March 1997 by signing a “Father's Acknowledgment of Paternity” prepared pursuant to N.C.G.S. § 110-132(a), and an “Order of Paternity” was subsequently entered pursuant to the acknowledgment. Plaintiff agreed to and began providing support for Kayla without a court order. Plaintiff has never legitimated Kayla pursuant to N.C.G.S. § 49-10 or sought a judicial determination of paternity as provided for in N.C.G.S. § 49-14.
Kayla continued to reside with defendant in North Carolina but visited regularly with plaintiff and his wife in Oklahoma. Defendant maintained a relationship with Clea Johnson, the father of her other children, and Kayla also became close to Johnson, calling him “daddy Clea.” Defendant worked rotating shifts at a local medical facility, and as a result, Kayla often spent nights and weekends with defendant's mother and grandmother. Defendant's mother worked at the day care attended by Kayla.
Kayla's visits with her father in Oklahoma consisted of long weekends. Defendant flew with Kayla to meet plaintiff in Oklahoma, facilitating the minor child's visits with her father. On three or four occasions, Kayla visited with her father two weeks at a time. Plaintiff also visited Kayla in North Carolina and kept in contact with her through telephone calls and other correspondence.
On 22 March 2000, shortly after Kayla's fourth birthday, plaintiff initiated the present action for primary custody of his minor child, alleging that awarding him custody was in her best interest. Defendant answered plaintiff's allegations and filed a counterclaim for primary custody. According to defendant, she should retain primary custody, as it is in Kayla's best interest to remain in North Carolina and in the environment to which she had become accustomed. Four and one-half months after initiating the custody proceeding, but prior to a hearing, plaintiff and his wife moved to North Carolina and continued regular visits with the child.
Upon hearing testimony and arguments from both parties, the trial court awarded primary custody to plaintiff. In an order entered 2 January 2001, signed nunc pro tunc 12 December 2000, the court concluded that, although both parents were fit and proper, it was in Kayla's best interest that she be placed in plaintiff's primary custody. The court found support in its conclusion in the stable and structured life provided by plaintiff and his wife, a person with whom Kayla had developed a loving relationship. The trial court noted that, in contrast to the environment created by plaintiff, defendant's social life and work schedule created a “hectic household” that did not meet the child's needs for stability and consistency. Defendant appealed the order for permanent custody.
During the pendency of defendant's appeal, plaintiff took physical custody of Kayla, and in turn, defendant filed a motion for a protective order with the trial court. The trial court denied the motion for a protective order.
On 21 May 2002, a divided panel of the Court of Appeals reversed the trial court's order awarding custody to plaintiff and remanded the case for a new hearing consistent with its opinion. Rosero v. Blake, 150 N.C.App. 251, 563 S.E.2d 248 (2002). The Court of Appeals began by concluding that the trial court did not err in refusing to grant the protective order. Id. at 254, 563 S.E.2d at 251. Relevant to our review, the Court of Appeals further concluded that, in awarding custody to plaintiff based upon what was in Kayla's best interest, the trial court ignored the common-law presumption that custody of an illegitimate child should be awarded to the mother, absent a showing that she is unfit or otherwise unable to care for the minor child. Id. at 260, 563 S.E.2d at 255. Judge Ralph Walker concurred in part and dissented in part with a separate opinion. Judge Walker found no error in the trial court's application of the best interest of the child standard because it was his belief that the common-law presumption in favor of the mother had been abrogated by statute. Id. at 262, 563 S.E.2d at 256 (Walker, J., concurring in part and dissenting in part). Judge Walker also concluded that the case should be remanded for more detailed findings, as the trial court's findings were not supported by competent evidence. Id. at 266, 563 S.E.2d at 258 (Walker, J., concurring in part and dissenting in part).
The case is now before this Court pursuant to plaintiff's appeal of right based upon Judge Walker's dissent and plaintiff's petition for discretionary review of an additional issue allowed by this Court.
We find it appropriate to begin with a brief background into the common-law presumption giving rise to plaintiff's appeal. Under early North Carolina common law, an illegitimate child was nullius filius, meaning that the child had “no father known to the law, no distinction being made between a reputed father and an admitted father.” Allen v. Hunnicutt, 230 N.C. 49, 50, 52 S.E.2d 18, 19 (1949). Thus, custody of an illegitimate child was to be presumptively awarded to the mother unless she was deemed unsuitable. See, e.g., Jolly v. Queen, 264 N.C. 711, 713, 142 S.E.2d 592, 595 (1965); Browning v. Humphrey, 241 N.C. 285, 287, 84 S.E.2d 917, 918-19 (1954); In re Shelton, 203 N.C. 75, 79, 164 S.E. 332, 334 (1932). This well-established presumption in favor of the child's mother could be rebutted by the putative father only if he proved that “the mother, by reason of character or special circumstances, is unfit or unable to have the care of her child and that, for this reason, the welfare, or best interest, of the child overrides [the mother's] paramount right to custody.” Jolly, 264 N.C. at 714, 142 S.E.2d at 595. The presumption dates back to pre-America England, where “[b]etween the father and the mother ․, the latter seems to have the prior claim; for if the father obtain[ed] the custody surreptitiously, the king's bench w[ould] make him restore it.” Moritz v. Garnhart, 7 Watts 302, 303 (Pa.1838) (citation omitted). The mother's paramount right to custody was based upon the “frequent doubt as to the child's father, and [the fact] that the mother, nearest in interest and affection to the child, w[ould] best promote its welfare.” Wall v. Hardee, 240 N.C. 465, 466, 82 S.E.2d 370, 372 (1954); see also Moritz, 7 Watts at 303 (“Though [a child born out of wedlock] be not looked upon as a child for any civil purpose, the ties of nature are respected in regard to its maintenance.”).
The North Carolina General Statutes provide that common law, “which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, [is] hereby declared to be in full force within this [s]tate.” N.C.G.S. § 4-1 (2001) (last amended in 1778). Thus, because the common-law presumption recognizing a preference for maternal custody of an illegitimate child had not been abrogated, a putative father was on unequal footing with the mother unless he had the child statutorily legitimated either through a legitimacy proceeding as provided for by N.C.G.S. § 49-10 or through subsequent marriage to the child's mother pursuant to N.C.G.S. § 49-12. See N.C.G.S. § 49-11 (2001) (“The effect of legitimation ․ shall be to impose upon the father and mother all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue, and to the same extent as if said child had been born in wedlock․”).
In 1955, this Court held that a putative father was a “parent” as defined by North Carolina's general custody statute in effect at that time, N.C.G.S. § 50-13 (1950) (repealed 1967), and therefore had a right to maintain an action for custody of his illegitimate child under that statute.1 Dellinger v. Bollinger, 242 N.C. 696, 699, 89 S.E.2d 592, 594 (1955) (“Certainly [N.C.G.S. § 50-13] is sufficiently broad and comprehensive to include this proceeding which is a controversy respecting the custody of a child.”). Although a putative father could maintain an action for custody under N.C.G.S. § 50-13, this Court confirmed, as late as 1965, that to be awarded custody, the putative father must still overcome the common-law presumption for awarding custody in favor of the mother. In Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965), a mother sought to retain custody of her illegitimate child under circumstances remarkably similar to those existing in the present case. The father in Jolly had held his illegitimate child out as his son, had cared for the child, and had provided for him. However, the father failed to have the child legitimated.
In this case [the putative father] has taken no steps to legitimate the son whose custody he now claims. Therefore, under our intestacy laws, the child cannot inherit from his father or his father's relatives. Should [the putative father] die, [his wife], of course, would have no legal obligation to the boy. The child and his lineal descendants can take “by, through and from his mother and his other maternal kindred, both descendants and collaterals, and they are entitled to take from him.” G.S. 29-19. Should [the mother] and her husband desire that he adopt the [child], [the father's] consent would be unnecessary. The child's domicile is that of his mother․ The only legal right which the boy can enforce against his putative father is provided by Gen. Stats., ch. 49, art. I.[ 2] But this article is not primarily to benefit illegitimate children but to prevent them from becoming public charges.
Jolly, 264 N.C. at 715, 142 S.E.2d at 595-96 (citations omitted).
a judge might find it to be in the best interest of a legitimate child of poor but honest, industrious parents, who were providing him with the necessities, that his custody be given to a more affluent neighbor or relative who had no child and desired him. Such a finding, however, could not confer a right as against such parents who had not abandoned their child, even though they had permitted him to spend much time in the neighbor's home. In other words, the parents' paramount right to custody would yield only to a finding that they were unfit custodians because of bad character or other, special circumstances. So it is with the paramount right of an illegitimate [child's] mother.
Id. at 715-16, 142 S.E.2d at 596.
It is against this background that we consider the dispositive issue for which plaintiff appealed of right to this Court: Whether the North Carolina common-law rule that custody of an illegitimate child presumptively vests in the mother has been abrogated by statutory and case law. Concluding that the presumption no longer exists as law in this state, we reverse the Court of Appeals' decision to the contrary for the reasons stated below.
There is no question that the landscape of our law governing child custody, the rights of unwed fathers, and the rights of illegitimate children changed dramatically beginning shortly after our 1965 decision in Jolly. In 1967, our General Assembly repealed all prior statutes governing the custody of minor children and enacted N.C.G.S. § 50-13.1 to -13.8, a statutory scheme under which all child custody actions are now to be brought. Ch. 1153, secs. 1-2, 1967 N.C. Sess. Laws at 1772-77; see also Oxendine v. Catawba Cty. Dep't of Soc. Servs., 303 N.C. 699, 706, 281 S.E.2d 370, 374 (1981) (noting that although section 50-13.1 is contained within that portion of our General Statutes governing divorce and alimony, its application was not to be restricted to custody disputes within the context of separation or divorce). N.C.G.S. §§ 50-13.1 to -13.8 were enacted “to eliminate conflicting and inconsistent custody statutes and to replace them with a comprehensive act governing all custody disputes.” Oxendine, 303 N.C. at 706, 281 S.E.2d at 374. When enacted, N.C.G.S. § 50-13.2 directed the trial courts to award custody based upon what “will best promote the interest and welfare of the child.” Ch. 1153, sec. 2, 1967 N.C. Sess. Laws at 1772 (adopting the text still contained in N.C.G.S. § 50-13.2(a), (b)). Significant to our discussion here, the legislature further amended N.C.G.S. § 50-13.2 in 1977 to provide: “[B]etween the mother and father, whether natural or adoptive, there is no presumption as to who will ․ better promote the interest and welfare of the child.” Act of June 8, 1977, ch. 501, sec. 2, 1977 N.C. Sess. Laws 582, 582-83 (amending subsection 50-13.2(a)) (The relevant portion of the current version of the statute provides the following: “Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.”).
Upon and after the establishment of paternity of an illegitimate child pursuant to G.S. 49-14, the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother.
Soon after the enactment of and subsequent modifications to sections 50-13.1 to -13.8 and sections 49-14 to -16, our appellate courts acknowledged the legal consequences that followed therefrom. Notably, a 1974 decision by the Court of Appeals indicated that the common-law presumption for awarding custody of illegitimate children to their mothers had been abrogated. In Conley v. Johnson, 24 N.C.App. 122, 210 S.E.2d 88 (1974), the Court of Appeals affirmed a trial court's award of visitation of an illegitimate child to her father based upon what was in the child's best interest. The trial court in Conley found that the plaintiff, who alleged that he was the child's father and had been previously ordered to pay child support in criminal court, was indeed the child's father and was “a fit, suitable and proper person to have reasonable visitation privileges.” Id. at 123, 210 S.E.2d at 89. The mother appealed.
The Court of Appeals in Conley acknowledged that the mother's challenge to the trial court's award of visitation was based upon common law that dictated that an illegitimate child's father was not entitled to visitation unless visitation was consented to by the mother. Id. The court, however, citing Dellinger, 242 N.C. 696, 89 S.E.2d 592, and N.C.G.S. §§ 50-13.1 to -13.2 and 49-14 to -16, noted its belief that the common law had been abrogated by case and statutory law. Conley, 24 N.C.App. at 123-24, 210 S.E.2d at 89. The Court of Appeals concluded that the illegitimate child's father was entitled to all rights, duties, and obligations as was a parent under North Carolina statutes governing custody disputes. Id. at 124, 210 S.E.2d at 89-90. The court reasoned that if the father would be entitled to custody under section 50-13.1, surely he would be entitled to visitation. Id. at 124, 210 S.E.2d at 90.
In addition to those legislative changes acknowledged by the Court of Appeals in Conley, our General Assembly has continually enacted and modified legislation to establish legal ties binding illegitimate children to their biological fathers and to acknowledge the rights and privileges inherent in the relationship between father and child. These provisions operate even where the father acknowledges paternity but fails to have his child judicially legitimated or to seek a judicial determination of paternity. See, e.g., N.C.G.S. § 7B-1111(a)(5) (2001) (providing that parental rights of an illegitimate child's biological father cannot be terminated where the father has established or acknowledged paternity based upon any one of four enumerated methods); N.C.G.S. § 31-5.5 (2001) (entitling afterborn illegitimate children to devises under biological father's will); N.C.G.S. § 49-12.1 (2001) (allowing the putative father to legitimate his biological child, born to a mother married to another man, thus rebutting the well-established presumption that the child is the offspring of the other man); N.C.G.S. § 97-2(12) (2001) (granting “acknowledged” illegitimate children benefits pursuant to our workers' compensation laws); N.C.G.S. § 143-166.2(a) (2001) (including illegitimate children in the definition of “dependent child” for the purpose of allowing them to receive death benefits if their fathers were employed as North Carolina law enforcement officers, firemen, or rescue squad employees).
The above-noted statutory changes to our family-law jurisprudence follow or are reflective of many decisions from this Court and the United States Supreme Court. These decisions acknowledge that, absent a showing that the biological or adoptive parents are unfit, that they have otherwise neglected their children's welfare, or that some other compelling reason exists, the paramount rights of both parents to the companionship, custody, care, and control of their minor children must prevail. See, e.g., Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 2064, 147 L.Ed.2d 49, 61 (2000) (recognizing that “the Due Process Clause [of the United States Constitution] does not permit a[s]tate to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made”); Caban v. Mohammed, 441 U.S. 380, 392-93, 99 S.Ct. 1760, 1768-69, 60 L.Ed.2d 297, 307-08 (1979) (holding that gender-based law that allowed a child's unwed mother to withhold consent to adopt the child but did not allow the same as to the child's father violated the Equal Protection Clause); Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 1215-16, 31 L.Ed.2d 551, 562 (1972) (concluding that there was a violation of an unwed father's due process rights where he had custody of his child after the mother had died and the child was taken from him without a hearing on his fitness); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (holding that “[i]t is cardinal with us that the custody, care and nurtur[ing] of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”); Owenby v. Young, 357 N.C. 142, 144, 579 S.E.2d 264, 266 (2003) (affirming that biological and adoptive parents have a constitutionally protected liberty interest in the care and custody of their children); Adams v. Tessener, 354 N.C. 57, 66, 550 S.E.2d 499, 505 (2001) (holding that in a custody action between natural parents and grandparents, grandparents were properly awarded custody because natural parents' conduct was inconsistent with their protected right to care for the child); Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (holding that due process afforded the parents of minor children a superior right to custody of that child in dispute between parents and nonrelatives where the parents have acted consistent with their constitutionally protected status); Petersen v. Rogers, 337 N.C. 397, 402-03, 445 S.E.2d 901, 904-05 (1994) (recognizing parents' constitutionally protected right to custody, care, and control of their children); cf. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (striking down involuntary sterilization law because it violated fundamental rights to marriage and procreation).
In light of the changes in our laws governing familial relationships, we conclude that the Court of Appeals improperly relied upon Jolly v. Queen. The relationship of the father in Jolly to his illegitimate child was governed by the strict common-law doctrine of nullius filius, dictating the presumption that custody of illegitimate children vested in their mother. The Court in Jolly refused to sustain the trial court's findings as to what was in the illegitimate child's best interest, where the child was not entitled to inherit from the father or his father's relatives and could be adopted without the father's consent. Jolly, 264 N.C. at 715, 142 S.E.2d at 595-96. As such, the Court was forced to look upon the father, not as a parent entitled to a legal relationship, but as a stranger who wished to take in an unrelated child and raise him as his own.
Since Jolly, the General Assembly has modified those statutes governing intestate succession and adoption discussed therein, such that the restrictions imposed upon an unwed father's estate and his right to consent to an adoption no longer exist. Unlike the child in Jolly, illegitimate children today are entitled to inherit from their fathers and his relatives, and their fathers would be entitled to inherit from them, even though they have not been legitimated. N.C.G.S. § 29-19(b)(2), (c) (2001); see also Estate of Lucas v. Jarrett, 55 N.C.App. 185, 188-89, 284 S.E.2d 711, 713-14 (1981) (noting that there was a change in section 29-19(b), the statute governing intestate succession where a child is illegitimate, since the decision in Jolly ). Additionally, the consent of illegitimate children's fathers who acknowledged paternity would now be required for their adoption. See N.C.G.S. § 48-3-601(2)(b) (2001). Further, in contrast to the father in Jolly, illegitimate children's fathers, including plaintiff, now benefit from the provisions of N.C.G.S. § 110-132(a), providing another method for formal acknowledgment of paternity, and other statutory provisions establishing legal ties between illegitimate children and their fathers, even though they may not have pursued legitimation procedures.
Moreover, we disagree with the Court of Appeals' majority that the vast changes to the law discussed above indicate only a patchwork of abrogations to the common law such that the presumption for awarding custody of an illegitimate child is still the law in this state. The majority reasoned that the differences between sections 110-132(a) and 49-14 support its conclusion that the presumption still exists, even where a father acknowledges paternity via section 110-132(a) and embraces his role as the illegitimate child's father. See Rosero, 150 N.C.App. at 258-59, 563 S.E.2d at 254. Unlike the Court of Appeals, we find the divergent purposes underlying the article in which N.C.G.S. § 110-132(a) is contained, to provide child support, and N.C.G.S. § 49-14, to determine paternity, irrelevant. The legislative intent of the comprehensive statutes addressing child welfare should be the paramount consideration. See Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998) (noting that this Court construes multiple statutes governing a single subject in pari materia to effectuate legislative intent and “to harmonize them into one law on the subject”). Given the changes to our General Statutes discussed supra, the effects of acknowledging paternity, a judicial determination of paternity, and legitimation proceedings are similar: The illegitimate child is able to inherit by and through the father, the father is able to inherit from his child, and the father's consent is needed for adoption.
We also note that the Court of Appeals' majority found support for its conclusion in the distinction between the high standard for establishing paternity judicially under section 49-14, that is, by clear and convincing evidence, and the complete lack of standards for acknowledging paternity in section 110-132(a). Rosero, 150 N.C.App. at 259, 563 S.E.2d at 254-55. The majority further found it significant that acknowledgment under the version of section 110-132(a) appearing in the 1999 edition of our General Statutes could be rescinded, while a judicial determination of paternity was absolute. Id. According to the Court of Appeals, these distinctions indicated that a father acknowledging paternity under section 110-132(a) was not on equal footing with the father who had received a judicial determination of paternity. Thus, the court reasoned, the maternal-preference presumption still applied to the detriment of the father who acknowledged paternity under N.C.G.S. § 110-132(a). Id. at 260, 563 S.E.2d at 255. Again, we disagree. Although section 110-132(a) does not provide for even a modicum of proof of paternity, it does require, in both the current version and the version in effect for this case, that the child's mother affirm that the acknowledging father is, in fact, the natural father. Such a requirement prevents a man from “simply declar[ing] his paternity of a child unilaterally and easily fil[ing] for a court order approving his acknowledgment and agreement to support.” Durham Cty. Dep't of Soc. Servs. v. Williams, 52 N.C.App. 112, 117 n. 3, 277 S.E.2d 865, 869 n. 3 (1981). Furthermore, whether the affirmation of paternity can be rescinded is irrelevant. At the time custody is adjudicated, a father who affirms his paternity pursuant to section 110-132(a) and pays child support in conjunction with that affirmation is acting consistent with his right to care for and have control of the child. As with any custody determination, the arrangement arrived at by the trial court can subsequently yield to a modification based upon a substantial change in circumstances.
Given the legal relationship between fathers and their illegitimate children now existing by virtue of certain statutory enactions, we believe that the legislature's 1977 modifications to N.C.G.S. § 50-13.2(a) represent an express abrogation of the common-law presumption at issue in the present case. As noted supra, given the unambiguous 1977 modification, N.C.G.S. § 50-13.2(a) now provides that “[b]etween the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.” We are unpersuaded by defendant's argument that N.C.G.S. § 50-13.2(a) applies only to abrogate the so-called “tender years” doctrine, which previously provided that a mother had the superior right to custody of her young children. See Westneat v. Westneat, 113 N.C.App. 247, 251, 437 S.E.2d 899, 901 (1994). To determine whether N.C.G.S. § 50-13.2(a) abrogated the presumption at issue, we must examine its plain language. State v. Dellinger, 343 N.C. 93, 95, 468 S.E.2d 218, 220 (1996). “When the language of a statute is clear and unambiguous, there is no room for judicial construction, and the courts must give it its plain and definite meaning.” Lemons v. Old Hickory Council, BSA, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted). Neither section 50-13.2(a) nor the case in which the Court of Appeals held that the “tender years” doctrine was no longer applicable, Westneat, expressly provides that the statute abrogates only the “tender years” doctrine. There is absolutely nothing in the plain language of section 50-13.2(a) or Westneat that supports defendant's assertion. We therefore conclude that, by its plain language, the statute clearly abrogates the common-law presumption vesting custody of an illegitimate child in the child's mother.
Applying N.C.G.S. § 50-13.2(a) in such a manner is not only dictated by its plain language, but also ensures that the best interest of the child, illegitimate or legitimate, not the relationship, or lack thereof, between natural or adoptive parents, is the district court's paramount concern. For, as between natural or adoptive parents, “[t]he welfare of the child has always been the polar star which guides the courts in awarding custody.” Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998); see also Owenby, 357 N.C. at 146, 579 S.E.2d at 267. Several courts in our sister states have applied this same reasoning to find the common-law presumption for awarding custody in favor of the illegitimate child's mother no longer applicable, with varying degrees of consideration given to the method by which the father acknowledged or established paternity. See Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981) (noting that “the controlling consideration must be the interests of the child”); Cox v. Hendricks, 208 Neb. 23, 27, 302 N.W.2d 35, 38 (1981) (acknowledging and adopting the “clear trend in recent cases ․ to disregard the fact that a child was born out of wedlock in deciding custody disputes between natural parents”); In re Byrd, 66 Ohio St.2d 334, 338, 421 N.E.2d 1284, 1286-87 (1981) (recognizing that use of best interest standard, rather than the maternal-preference presumption, promotes equality between the right of legitimate and illegitimate children to be placed with the parent who would promote their best interest); see also Pi v. Delta, 175 Conn. 527, 530-31, 400 A.2d 709, 710-11 (1978) (concluding that although state statute provides that the mother of an illegitimate child was that child's sole guardian, custody should be determined according to what is in the child's best interest); Bazemore v. Davis, 394 A.2d 1377, 1379 (D.C.Ct.App.1978) (noting that in custody disputes between natural parents, the best interest of the child standard applies); Race v. Sullivan, 612 So.2d 660, 661 (Fla.Dist.Ct.App.1993) (holding that “[t]he shared parental responsibility law ․ is applicable to non-married parents” and that the best interest of the child standard applies as between non-married parents); In re Custody of Bourey, 127 Ill.App.3d 530, 533, 82 Ill.Dec. 852, 469 N.E.2d 386, 388 (1984) (noting that “the best interest of the child guides the decision, no matter what form the proceedings may take”); La Grone v. La Grone, 238 Kan. 630, 632-33, 713 P.2d 474, 476 (1986) (holding that “an unwed parent, whether mother or father, should be treated the same as any other parent for the purpose of determining custody” and that the best interest of the child standard should apply); Walton v. DeBlieux, 428 So.2d 937, 939 (La.Ct.App.1983) (holding that “[t]he criteria applicable in determining the custody of legitimate children are also applicable in determining the custody of illegitimate children”). But see Ex parte D.J., 645 So.2d 303 (Ala.1994) (per curiam) (concluding that maternal presumption for custody of an illegitimate child was still good law in that state); Taylor v. Commonwealth, 260 Va. 683, 537 S.E.2d 592 (2000) (holding that defendant's status as fiancée to the unwed father of the ten-month-old victim did not excuse the defendant's actions in assisting in the kidnapping of the child because the right of the father to immediate custody of the child was inferior to that of the mother). If the reasoning of the Court of Appeals in its 1974 decision in Conley v. Johnson was correct-that the common-law presumption in favor of the mother had already been abrogated by case law and the 1967 amendments to our General Statutes-there is no question that the presumption no longer exists in this, the twenty-first century.
The above-noted modification to N.C.G.S § 50-13.2(a) was an abrogation of the common-law presumption at issue in the present case. That abrogation, coupled with those changes to our General Statutes recognizing the legal relationship between parent and illegitimate child, establishes that an illegitimate child's father who has acknowledged or affirmed his paternity under section 110-132(a) and whose conduct is consistent with his right to care for and control his child, no longer stands as a third party in relation to his illegitimate child. We therefore hold that the father's right to custody of his illegitimate child is legally equal to that of the child's mother, and, as dictated by section 50-13.2, if the best interest of the child is served by placing the child in the father's custody, he is to be awarded custody of that child. Accordingly, in the present case, the trial court did not err in applying the best interest of the child standard.
As we have determined that the best interest of the child standard was properly applied in the present case, we must now review the trial court's findings of fact and conclusions of law in accordance with that standard. “In a custody proceeding, the trial court's findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.” Owenby, 357 N.C. at 147, 579 S.E.2d at 268. Our review of the custody order in the case at issue reveals that the trial court's findings of fact are supported by record evidence and that those findings, in turn, support the trial court's conclusions of law. We therefore affirm the trial court's order awarding custody of Kayla to plaintiff.
In conjunction with plaintiff's appeal of right discussed supra, this Court granted plaintiff's petition for discretionary review of an additional issue: Whether the common-law presumption that the mother of an illegitimate child retains a superior right to that child's custody violates the Equal Protection Clause of the United States and North Carolina Constitutions. Because we have determined that this presumption has been abrogated by statute, we need not address whether it violates plaintiff's rights under the United States and North Carolina Constitutions. See Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (per curiam) (noting that “the courts of this [s]tate will avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds”).
Because a mother's right to the custody of her illegitimate child is no longer superior to that of the child's father, the trial court properly applied the best interest of the child standard as between the parties to the present action. Furthermore, the evidence of record supports the trial court's findings of fact, which further supports the trial court's conclusion that awarding custody of Kayla to plaintiff was in Kayla's best interest. Accordingly, we reverse the Court of Appeals' decision and remand this case to that court for further remand to the District Court, Wake County, for reinstatement of the trial court's order.
1. N.C.G.S. § 50-13 provided for a custody proceeding pursuant to a divorce. In 1949, the General Assembly amended the statute to include not only custody actions arising out of divorce proceedings, but also “controversies respecting the custody of children not provided for by ․ G.S. 17-39.” Act of Apr. 15, 1949, ch. 1010, sec. 1, 1949 N.C. Sess. Laws 1148, 1148. N.C.G.S. § 17-39, as found in the 1953 edition of our General Statutes, provided habeas corpus relief to determine custody where husband and wife were living separate and apart. 3 Robert E. Lee, North Carolina Family Law § 222 (3d ed.1963) [hereinafter Lee's Family Law]. Both N.C.G.S. § 17-39 and § 50-13 were repealed in 1967. Act of July 6, 1967, ch. 1153, sec. 1, 1967 N.C. Sess. Laws 1772, 1772.
2. At the time this Court decided Jolly, N.C.G.S. §§ 49-1 to -9 provided the exclusive remedy for collecting financial support for an illegitimate child. Pursuant to sections 49-1 to -9, a criminal action could be brought in the name of the state against a reputed father for his willful negligence to support his illegitimate child. 2 Lee's Family Law § 177. Violation of the statute was punishable as a misdemeanor, and, upon finding a violation, the judge was to set an amount of support to be paid by the father. Id. Any benefit to the child was incidental to the statute's purpose, which was to prevent illegitimate children “from becoming public charges.” Allen, 230 N.C. at 51, 52 S.E.2d at 19. Those same provisions, with subsequent modifications, still govern criminal actions for nonsupport of illegitimate children today. See N.C.G.S. § 49-1 to -9 (2001).
3. The Court of Appeals cited to a version of N.C.G.S. § 110-132(a) appearing in the 1999 edition of our General Statutes. Rosero, 150 N.C.App. at 259, 563 S.E.2d at 255; see also N.C.G.S. § 110-132(a) (1999) (amended 2001). The 1999 version of N.C.G.S. § 110-132(a) contained amendments from the 1997 session of the General Assembly, which included that portion of the statute that now allows for rescission. Act of Aug. 19, 1997, ch. 433, sec. 4.7, 1997 N.C. Sess. Laws 1275, 1285-86. Because the 1997 amendments did not become effective until October 1997, see ch. 433, sec. 11.3, 1997 N.C. Sess. Laws at 1316, it appears that the version cited by the Court of Appeals included the allowance for rescission and was not applicable to plaintiff, who acknowledged his paternity in April of 1997. Thus, the version of the statute contained in the 1990 cumulative supplement of our General Statutes is the version that we note as being applicable to plaintiff.
4. N.C.G.S. § 110-132(a), with recent additions underlined and omissions stricken, now provides:110-132. Acknowledgment Affidavit of paternity parentage and agreement to support.(a) In lieu of or in conclusion of any legal proceeding instituted to establish paternity, the written acknowledgment affidavits of paternity parentage executed by the putative father of the dependent child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the dependent child and filed with and approved by a judge of the district court in the county where the mother of the child resides or is found, or in the county where the putative father resides or is found, or in the county where the child resides or is found shall constitute an admission of paternity and shall have the same force and legal effect as a judgment of that court; and a paternity for the purpose of establishing a child support obligation, subject to the right of either signatory to rescind within the earlier of:(1) 60 days of the date the document is executed, or(2) The date of entry of an order establishing paternity or an order for the payment of child support.In order to rescind, a challenger must request the district court to order the rescission and to include in the order specific findings of fact that the request for rescission was filed with the clerk of court within 60 days of the signing of the document. The court must also find that all parties, including the child support enforcement agency, if appropriate, have been served in accordance with Rule 4 of the North Carolina Rules of Civil Procedure. In the event the court orders rescission and the putative father is thereafter found not to be the father of the child, then the clerk of court shall send a copy of the order of rescission to the State Registrar of Vital Statistics. Upon receipt of an order of rescission, the State Registrar shall remove the putative father's name from the birth certificate. In the event that the putative father defaults or fails to present or prosecute the issue of paternity, the trial court shall find the putative father to be the biological father as a matter of law.After 60 days have elapsed, execution of the document may be challenged in court only upon the basis of fraud, duress, mistake, or excusable neglect. The burden of proof shall be on the challenging party, and the legal responsibilities, including child support obligations, of any signatory arising from the executed documents may not be suspended during the challenge except for good cause shown.A written agreement to support said the child by periodic payments, which may include provision for reimbursement for medical expenses incident to the pregnancy and the birth of the child, accrued maintenance and reasonable expense of prosecution of the paternity action, when acknowledged as provided herein, filed with, and approved by a judge of the district court at any time, shall have the same force and effect as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. Such written affirmations, acknowledgments The written affidavit shall contain the social security number of the person executing the affidavit. Voluntary agreements to support shall contain the social security number of each of the parties to the agreement. The written affidavits and agreements to support shall be sworn to before a certifying officer or notary public or the equivalent or corresponding person of the state, territory, or foreign country where the affirmation, acknowledgment, or agreement is made, and shall be binding on the person executing the same whether he the person is an adult or a minor. Such The child support enforcement agency shall ensure that the mother and putative father are given oral and written notice of the legal consequences and responsibilities arising from the signing of an affidavit of parentage and of any alternatives to the execution of an affidavit of parentage. The mother shall not be excused from making such affirmation the affidavit on the grounds that it may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act involved in the conception of the child as to whose paternity she makes affirmation attests.N.C.G.S. § 110-132(a) (2001).


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Dr. Jon R. Rotzien is an Adjunct Professor at UTPB and President of Basin Dynamics, LLC in Houston, Texas. He received a Ph.D. in Geological and Environmental Sciences from Stanford University and a B.A. degree in Geology from Colorado College. Prior to his present positions, he was an exploration and appraisal geoscientist at BP. His expertise is the sedimentology and stratigraphy of deep-water depositional systems, basin analysis, and source-to-sink sediment transfer. Jon aims to solve key challenges in the exploration and production of petroleum, including reservoir presence and quality forecasting in frontier to mature basins. He has published peer-reviewed research papers and scientific conference proceedings pertaining to reservoir quality, sequence stratigraphy, petroleum geology, process sedimentology, basin analysis, and geophysics, and he teaches deep-water stratigraphy and petroleum geology field courses in the United States, France, Ireland, and New Zealand.
 Xu, C., J. Hamman, A. Brickell, and J. R. Rotzien, eds., 2017, Introduction to special section: Integrating multiscale and multidiscipline data: Interpretation, v. 5.2, p. 1–2.
 Donovan, A. D., T. S. Staerker, R. D. Gardner, A. Pramudito, M. Wehner, M. J. Corbett, J. J. Lundquist, A. M. Romero, L. Henry, J. R. Rotzien, and K. S. Boling, 2015, A sequence stratigraphic framework for establishing the chronostratigraphic relationships between the Woodbine and Eagle Ford groups along the outcrop belt and shallow subsurface in Texas: Journal of the Gulf Coast Association of Geological Societies, v. 4, p. 67–87.
 Marchand, A. M. E., G. Apps, W. Li, and J. R. Rotzien, 2015, Depositional processes and impact on reservoir quality in deepwater Paleogene reservoirs, US Gulf of Mexico: AAPG Bulletin, v. 99, no. 9, p. 1635–1648.
 Rotzien, J. R., D. R. Lowe, and J. R. Schwalbach, 2014, Processes of sedimentation and stratigraphic architecture of deep-water braided lobe complexes: The Pliocene Repetto and Pico formations, Ventura Basin, U.S.A.: Journal of Sedimentary Research, v. 84, p. 910–934.
 Rotzien, J. R., D. R. Lowe, P. R. King, and G. H. Browne, 2014, Processes of sedimentation and stratigraphic evolution of the Upper Miocene Upper Mount Messenger Formation, Taranaki Basin, New Zealand: Journal of Marine and Petroleum Geology, v. 52, p. 22–41.
 Ruleman, C. A., R. A. Thompson, R. S. Shroba, M. L. Anderson, B. Dreneth, J. Rotzien, and J. Lyon, 2013, Late Miocene-Pleistocene evolution of a Rio Grande rift sub-basin, Sunshine Valley-Costilla Plain, San Luis Basin, New Mexico and Colorado, in M. R. Hudson, and V. J. S. Grauch, eds., New Perspectives on Rio Grande Rift Basins: From Tectonics to Groundwater: Geological Society of America Special Papers 494, p. 47–73.

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The following contribution to our gene-patenting symposium comes from Christopher M. Holman, Associate Professor of Law at the University of Missouri Kansas City School of Law.
In 2005, the Supreme Court granted certiorari in Laboratory Corp. v. Metabolite Laboratories to decide the patent eligibility of a patent claim broadly directed towards the clinical application of a biological discovery. However, after the case had been fully briefed and argued, the Court dismissed the writ of certiorari as “improvidently granted.” Although the Court did not explain its action, I suspect that the decision to dismiss was based on the fact that the issue of patent eligibility had not been addressed in the lower courts, and thus was not ripe for resolution by the Supreme Court.
In 2012, the Court granted certiorari in Mayo Collaborative Services v. Prometheus Laboratories, an appeal from the Federal Circuit raising essentially the same issue as LabCorp. The difference this time was that the question of patent eligibility had been addressed squarely in the decisions below. In Mayo, the Supreme Court answered the question it had set aside in LabCorp, invalidating the claim and apparently constricting the scope of patent-eligible subject matter. The ultimate impact of Mayo on the patenting of innovation in the life sciences, particularly with respect to personalized medicine and diagnostics, awaits further development in the courts, but could be substantial.
In Association for Molecular Pathology v. Myriad Genetics, history is in a sense repeating itself. The question presented is quite similar to that presented in LabCorp and Mayo – that is, the patent eligibility of patent claims originating in a biological discovery of clinical significance. The major difference is that LabCorp and Mayo involved process claims, while Myriad involves product claims directed to compositions of matter. As was the case in LabCorp, the Myriad appeal was, in my view, improvidently granted because the patent eligibility issue was not sufficiently developed in the lower courts. Although the Federal Circuit did decide the question of patent eligibility in Myriad, it did so without adequately construing the language of the claims, and as a consequence failed to delineate the scope of the claims. Without having laid this groundwork, it is impossible to make a principled determination of patent eligibility, because there is no clarity as to the subject matter covered by the claims and the sorts of products or activities that could potentially be infringing.
In part, the problem in Myriad stems from the unusual posture of the lawsuit. In most cases, patent litigation is precipitated by an allegation that one or more patent claims are infringed by some tangible product or activity. It is necessary to construe the scope of the claims in order to assess infringement, as well as claim validity. Both LabCorp and Mayo, for example, arose from a lawsuit filed by the patent owner raising specific allegations of infringement. In contrast, Myriad Genetics was literally dragged into the court by the ACLU and the Public Patent Foundation. In fact, many would argue that the lower courts should have dismissed the case for lack of any real controversy, given that none of the named plaintiffs face any real likelihood of being sued for infringing the challenged patent claims.
With no specific allegation of infringement, the lower courts resorted to speculation as to the scope of the claims. Not surprisingly, some of the statements made by the judges in the Federal Circuit decisions reflect a fundamental misunderstanding of the science, and the nature, of the claimed “isolated DNA.” The confusion was evident, for example, during oral argument before the Federal Circuit, when Judge Bryson asked the attorneys arguing the case whether whole genome sequencing would infringe the isolated DNA claims. The ACLU attorney said yes, Myriad’s attorney responded no, but in fact it seems clear that neither could answer the question knowledgeably because the scope of the claims had never been adequately construed. In fact, as Robert Cook-Deegan (Duke University) and I explained in an amicus brief we filed with the Federal Circuit, it seems highly unlikely that Myriad’s isolated DNA claims that are the subject of the current appeal would be found valid and infringed by DNA sequencing, in the unlikely event the claims were ever asserted in court.
Moreover, based on my empirical research on human gene patent litigation in the U.S., there does not appear to be a single example of a patent owner asserting in court that an isolated DNA claim is infringed by DNA sequencing, or for that matter any form of genetic diagnostic testing. The controversy over gene patents in recent years has been driven largely by wildly exaggerated assumptions as to the scope and impact of so-called “gene patents.” In fact, these sorts of patent claims have been around for decades, and the concern that they will impede research and genetic diagnostic testing remains largely unsubstantiated.
Unfortunately, in its recent patent decisions the Supreme Court has failed to follow Judge Rich’s maxim, largely ignoring claim construction and the significance of claim limitations. In Quanta v. LG Electronics, for example, the Court’s analysis focused repeatedly on the nebulous concept of a product “embodying” a method claim. In Mayo, the Court flipped this idea around, referring to patent claims as “embodying” research or natural laws. The same disregard for the language of the claims is evident in Bilski v. Kappos, another patent eligibility case recently decided by the Supreme Court. Explicit claim limitations, which define the boundaries of the subject matter covered by the patent, are given short shrift in this sort of analysis. Perhaps Justice Scalia is not the only member of the Court with little interest in “getting into the weeds of patent law” (referring to a statement, perhaps only half-joking, made recently by Scalia during oral arguments in Gunn v. Minton). But the devil is in the details: before declaring a patent claim to be patent ineligible, a court should construe the claim to the extent necessary to specifically identify the purportedly ineligible subject matter falling within the scope of the claim.
For years, unfounded assumptions regarding the scope of isolated DNA claims have led to exaggerated, and in my view unwarranted, concerns regarding their potential impact on research and medicine. For example, misinterpretation of a single journal article has led to a widespread and pervasive belief that twenty percent of human genes are patented in the U.S., and that as a consequence any research or diagnostic testing involving these genes inevitably results in patent infringement. Indeed, one of the Federal Circuit judges who decided Myriad appears convinced that patents claiming isolated DNA sequences threaten to block promising new technologies such as whole genome sequencing and multiplex genetic testing. In fact, when one reads the claims of the patents that form the basis for the myth that twenty percent of human genes are patented, as I have, it becomes readily apparent that few (if any) of these patents pose any substantial obstacle to these technologies.
For a variety of reasons, including the sequencing of the entire human genome that occurred over a decade ago, and the impending expiration of a host of so-called “gene patents” (including the patents at issue in this case), I predict that any policy concerns associated with these sort of isolated human DNA claims will only diminish over time. It seems unlikely to me that the prospective availability of isolated DNA claims will be particularly crucial for the next generation of biotechnology innovators. But they probably did play a role in providing an incentive for investment during the early days of biotechnology, and it is believed that thousands of patents containing claims of this sort have issued. I worry about the message the Supreme Court would be sending to innovators and investors if in deciding Myriad it in effect tells them that the host of patents that they have spent millions of dollars in obtaining over the last thirty years, and that probably have served as the basis for investment in the billions of dollars, have actually been invalid all along.

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§ 203-2 Findings; purpose; intent.
§ 203-5 Activities permitted by right.
§ 203-7 Standards for granting permits.
§ 203-10 Applicability; more restrictive standards to apply.
§ 203-11 Civil penalties; penalties for offenses.
This chapter shall be known as the "Wetlands Law of the Village of Buchanan."
Freshwater wetlands are invaluable resources for flood and storm control, fish and wildlife habitat, protection and provision of groundwater, recreation, pollution treatment, erosion control, environmental education and open space.
The preservation and maintenance of wetlands, water bodies and watercourses in an undisturbed and natural condition constitutes important physical, ecological, social, aesthetic, recreational and economic assets necessary to promote the health, safety and general welfare of present and future residents of the Village and of downstream drainage areas.
It is the intent of this chapter to implement the Freshwater Wetlands Act of the State of New York as presently contained in Article 24 of the Environmental Conservation Law, as the same may be amended from time to time, to the extent that said Freshwater Wetlands Act applies to property within the Village of Buchanan and to promote the public purposes identified therein and in this section by providing for the protection, preservation, proper maintenance and use of the Village's wetlands, water bodies and watercourses, by preventing or minimizing erosion due to flooding and stormwater runoff, by maintaining the natural groundwater supplies, preserving and protecting the purity, utility, water retention capability, ecological functions, recreational usefulness and natural beauty of all wetlands, water bodies, watercourses and other related features of the terrain and by providing and protecting appropriate habitats for natural wildlife.
The Board of Appeals of the Village of Buchanan.
The Board of Trustees of the Village of Buchanan.
The outer limit of the vegetation specified Subsection A of the definition of "wetlands" or of the land and waters specified in Subsections B, C and D of the definition of "wetlands" or of water bodies and watercourses or of the soils specified in Subsection E of the definition of "wetlands."
Any structure having a roof, self-supporting or supported by columns or walls, which is permanently affixed to the ground and intended for the shelter, housing or enclosure of persons, animals or chattel.
The Building Inspector of the Village of Buchanan.
The Code Inspector of the Village of Buchanan.
To fill, place, eject, discharge or dump any material but not including stormwater.
Soil, stones, sand, gravel, clay, bog, peat, mud, debris and refuse or any other organic or inorganic substance, whether liquid, solid or gaseous, or any combination thereof.
The Planning Board of the Village of Buchanan. In the event that no Planning Board has been created, the term "Planning Board" shall be deemed to mean the Board of Trustees of the Village of Buchanan until such time as a Village Planning Board is created.
The wetlands map prepared by the State of New York pursuant to Article 24 of the Environmental Conservation Law.
Anything constructed or erected, the use of which requires location on the ground or attachment to something having location on the ground. Included are swimming pools, parking garages and tennis courts, but not anything requiring only simple paving or surfacing of the ground such as parking lots, driveways or sidewalks.
The Village engineering consultant of the Village of Buchanan.
Any body of standing water which is not dry more than three months of the year as computed from the average of the last two consecutive calendar years and which, when wet, is customarily more than 500 square feet in water surface area.
Any body of flowing water flowing in an identifiable channel or course end which is not dry more than three months of the year.
Wetland trees, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other trees, including, among others, red maple, willows, black spruce, swamp white oak, red ash, black ash, silver maple, American elm and birch.
Wetland shrubs, which depend upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other shrubs, including, among others, alder, buttonbush, bog rosemary, dogwood and leatherleaf.
Emergent vegetation, including, among others, cattails, pickerelweed, bulrushes, arrow arum, arrowheads, reed, wild rice, bur reeds, purpose loosestrife, swamp loosestrife and water plantain.
Rooted, floating-leaved vegetation, including, among others, water lily, water shield and spatterdock.
Free-floating vegetation, including, among others, duckweed and watermeal.
Wet meadow vegetation, which depends upon seasonal or permanent flooding or sufficiently waterlogged soils to give them a competitive advantage over other open land vegetation, including, among others, sedges, rushes, cattails, rice cut-grass, reed canary grass, swamp loosestrife and spike rush.
Bog mat vegetation, including, among others, sphagnum mosses, bog rosemary, leatherleaf, pitcher plant and cranberries.
Submergent vegetation, including, among others, pond-weeds, naiads, bladderworts, wild celery, coontail, water milfoils, muskgrass, water weeds and water smartweed.
Lands and submerged lands containing remnants of any vegetation that is not aquatic or semiaquatic that has died because of wet conditions over a sufficiently long period, provided that such wet conditions do not exceed a maximum seasonal water depth of six feet and provided, further, that such conditions can be expected to persist indefinitely, barring human intervention.
Lands and water substantially enclosed by aquatic or semiaquatic vegetation as set forth in Subsection A of this definition or by dead vegetation as set forth in Subsection B, the regulation of which is necessary to protect and preserve the aquatic and semiaquatic vegetation.
The waters overlying the areas set forth in Subsections A and B and the lands underlying those in Subsection C of this definition.
A zoning district as specified in Chapter 211, Zoning, of the Code of the Village of Buchanan.
Chapter 211, Zoning, of the Code of the Village of Buchanan.
Any form of draining, dredging, excavation or removal of material, except removal of debris or refuse.
Any form of depositing of any material, such as but not limited to soil, rock, debris, concrete, garbage, chemicals, etc.
Erecting any building or structure of any kind, roads, the driving of pilings or placing of any other obstructions, whether or not they change the ebb and flow of the water.
Installing a septic tank, running a sewer outfall, discharging sewage treatment effluent or other liquid waste into or so as to drain into any wetland, water body or watercourse.
Any other activity which substantially impairs any of the several functions served by wetlands, water bodies and watercourses or the benefits derived therefrom as set forth in § 203-2 of this chapter.
The depositing or removal of the natural products of the wetlands, water bodies or watercourses by recreational or commercial fishing, agriculture, hunting or trapping where otherwise legally permitted.
Grazing, farming and harvesting of crops where otherwise legally permitted; provided, however, that any tillage of soil shall leave an undisturbed strip not less than six feet wide at the edge of any wetland, watercourse or water body to prevent erosion. With respect to any properties designated on the State Wetlands Map, the activities of farmers and other landowners in grazing and water livestock, making reasonable use of water resources, harvesting natural products of the wetlands, selectively cutting brush and timber, draining land or wetlands for growing agricultural products and otherwise engaging in the use of wetlands or other land for growing agricultural products shall be excluded from regulated activities and shall not require a permit under § 203-4 of this chapter, except that structures not required for the enhancement or maintenance or the agricultural productivity of the land and any filling activities shall not be excluded hereunder, and provided that the use of wetlands, water bodies and watercourses for uses other than those referred to in this subsection shall be subject to the provisions of this chapter. Each farmer or landowner who intends to conduct an activity described in this subsection which would otherwise be regulated shall notify the Planning Board, in writing, of his intention to engage in such activity, stating the approximate acreage to be affected, the general location thereof, the use or uses to be made of such land and the methods to be employed.
Gardening where otherwise legally permitted; provided, however, that any tillage of soil shall leave an undisturbed strip not less than six feet wide at the edge of any wetland, water body or watercourse to prevent erosion.
Operation and maintenance of such dams, retaining walls, terraces, sluices, culverts or other water control structures or devices as legally existed on the effective date of this section.
Public health activities as exemplified by orders and regulations of the Westchester County Department of Health. The Department of Health shall notify the Planning Board, in writing, of the proposed activity it will undertake.
Any actual and ongoing emergency activity as defined by the Board of Trustees which is immediately necessary for the protection and preservation of life or property or the protection or preservation of natural resource values.
The name and address of the applicant and the applicant's agent, if any, and whether the applicant is owner, lessee, licensee, etc. If the applicant is not the owner, the written consent of the owner must be attached.
A map showing the area of wetland, water body or watercourse directly affected.
A topographical and perimeter survey, hydrological computation, engineering studies and other factual or scientific data and reports as deemed necessary by the Planning Board to permit it to arrive at a proper determination.
In the case of applications affecting water retention capability, water flow or other drainage characteristics of any wetland, water body or watercourse, the Planning Board may require the inclusion of a statement of the area of upstream and downstream watersheds, impact analysis and information as to rainfall intensity in the vicinity for not less than a ten-year return frequency, together with approximate runoff coefficients to determine the capacity and size of any channel sections, pipes or waterway openings, together with plans for necessary bridges, culverts, stormwater or pipe drains that, in the opinion of the Planning Board, are needed to arrive at a proper determination on the application, consistent with the purposes of this chapter.
The applicant shall request a field determination of the affected area by the Village engineering consultant prior to mapping in Subsection A(1)(e). The Village engineering consultant shall submit a written report to the Planning Board on this determination.
Public hearing. No sooner than 30 days and not later than 60 days after the receipt of such application and publication of notice of application as required herein, the Planning Board shall hold a public hearing on any application submitted pursuant to this chapter. The Planning Board shall cause notice of such hearing to be published in the official newspaper at least 10 days prior to the date set for such hearing. All owners of record within 500 feet of the perimeter of the property shall be notified of the hearing by certified mail, return receipt requested, not less than 15 days prior to the date set for such hearing. The applicant shall be responsible for the mailing of such notices and shall file with the Planning Board an affidavit of mailing at or prior to the public hearing. All applications and maps and documents relating thereto shall be open for public inspection at the office of the Village Clerk. At such hearing, any person or persons filing a request for a hearing or a timely notice of appearance may appear and be heard.
Planning Board action. Within 75 days of the date the application is submitted or within 45 days of the date of any public hearing which may be conducted on said application, whichever period is shorter, the Planning Board shall render a decision to approve, approve with modifications or disapprove the issuance of a permit for the proposed activity. The decision of the Planning Board shall be made by written resolution stating the findings and reasons for such decision.
The applicant shall have the burden of demonstrating that the proposed activity will be in accord with the policies and provisions of this chapter.
In granting, denying or limiting any permit, the Planning Board shall consider the effect of the proposed activity with reference to the public health and welfare, fishing, flood, hurricane and storm dangers and the protection or enhancement of the several functions of the wetlands and the benefits derived therefrom as set forth in this section, irrespective of political boundaries.
The Planning Board may grant a permit, subject to such terms and conditions as it shall reasonably impose, upon finding that such activity is not contrary to the purposes of § 203-2 of this chapter. Said Board may also, in its discretion, permit any activity otherwise prohibited by this chapter to be done, except with respect to property designated on the State Wetlands Map or otherwise regulated by the state, provided that the Planning Board determines after investigation that to prohibit the activity would cause undue hardship to the property owner. In granting a permit, the Planning Board may limit the same or impose conditions or limitations designed to carry out the public policy set forth in this chapter. The Planning Board may require a bond, in an amount and with surety and conditions satisfactory to it, securing to the State of New York or the Village of Buchanan, as the case may be, compliance with the conditions and limitations set forth in the permit. The Building Inspector, with the concurrence of the Village engineering consultant, may suspend or revoke a permit if he finds that the applicant has not complied with any of the conditions or limitations set forth in the permit or has exceeded the scope of the activity as set forth in the application. The Building Inspector may suspend the permit if the applicant fails to comply with the terms and conditions set forth in the application.
Review of the determination of the Planning Board shall be within a period of 30 days after the filing thereof, pursuant to the provisions of Title 11 of Article 24 of the Environmental Conservation Law of the State of New York or pursuant to the provisions of Article 78 of the Civil Practice Law and Rules with respect to the properties designated on the State Wetlands Map or otherwise regulated by the state.
All applications for a wetlands permit shall be accompanied by a fee in accordance with the fee schedule adopted by the Board of Trustees.
The requirements of this chapter shall not apply to any work shown on construction drawings or improvement plans for subdivisions or site plans approved by said Planning Board.
Where this chapter is less or more protective of the environment than the Environmental Conservation Law of the State of New York or any local law or ordinance of the County of Westchester or the Village of Buchanan, the law or ordinance that is more protective of the environment shall prevail.
Any person who violates, disobeys or disregards any provision of this chapter shall be liable for a civil penalty not to exceed $3,000 for every such violation. Before assessment of the civil penalty, the alleged violator shall be afforded a hearing or opportunity to be heard before the Planning Board upon due notice and with rights to specification of the charges and representation by counsel.
The Planning Board shall also have the power, following a hearing, to direct a violator to cease violation of this chapter and, under the Board's supervision, to satisfactorily restore the affected freshwater wetland or watercourse to its condition prior to the violation, insofar as that is possible, within a reasonable time and under the supervision of the Planning Board.
Any civil penalty or order issued by the Planning Board shall be reviewable pursuant to Article 78 of the Civil Practice Law and Rules.
In addition to the above civil fine, any person who violates any provision of this chapter shall be guilty of a violation pursuant to the Penal Law, punishable by a fine of not less than $500 nor more than $1,000. For a second and each subsequent offense, the violator shall be guilty of a misdemeanor, punishable by a fine of not less than $1,000 nor more than $2,000 or a term of imprisonment of not less than 15 days nor more than six months, or both. Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense. Instead of these punishments, any offender may be punishable by being ordered by the court to restore the affected freshwater wetland to its condition prior to the offense, insofar as that is possible. The court shall specify a reasonable time for the completion of such restoration, which restoration shall be effected under the supervision of the Commissioner of the Department of Environmental Conservation or of the Village. Each offense shall be a separate and distinct offense, and, in the case of a continuing offense, each day's continuance thereof shall be deemed a separate and distinct offense.
The Planning Board shall have the right to seek equitable relief to restrain any violation or threatened violation of any provision of this chapter.
The Code Inspector or Building Inspector shall issue and post notices of violations of this chapter. In addition, by resolution, the Board of Trustees may direct the Code Inspector or Building Inspector to make such inspection and reports, initiate and take such court proceedings and perform all other actions as required by the Board of Trustees as may be necessary to enforce this chapter or to invoke penalties for its violation.


text:
Michael Lowe, et al., Defendants.
Plaintiff's application for leave to proceed in forma pauperis [1');">10] is granted. The court orders the trust fund officer at plaintiff's place of incarceration to deduct $9.81');">1 from plaintiff's account for payment to the Clerk of Court as an initial partial payment of the filing fee and to continue making monthly deductions in accordance with this order. The court directs the Clerk of Court to send a copy of this order to the trust fund officer at the Dixon Correctional Center. Summonses, however, shall not be issued. Plaintiff's complaint [1');">1] is dismissed with prejudice for failure to state a claim upon which relief may be granted. Because plaintiff has not established a basis for federal relief, his motions for preliminary injunction [1');">11');">1] and for service of process at government expense  are denied. Plaintiff's motion for attorney representation  is denied as moot. This dismissal counts as one of plaintiff's three allotted dismissals under 42 U.S.C. § 1');">191');">15(g). Having brought this federal lawsuit, plaintiff remains responsible for paying the $350.00 filing fee. See 28 U.S.C. § 1');">191');">15(b)(1');">1); Sloan v. Lesza, 1');">181');">1 F.3d 857');">1');">181');">1 F.3d 857, 859 (7th Cir. 1');">1999).
Plaintiff Bryant H. Harvey, Jr., an Illinois prisoner, brings this pro se civil rights action under 42 U.S.C. § 1');">1983 concerning his encounters with correctional officer Lowe at the Dixon Correctional Center. Before the court are plaintiff's application for leave to proceed in forma pauperis, complaint for initial review, and motion for attorney representation.
Plaintiff has demonstrated that he cannot prepay the filing fee, and thus, his application for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1');">191');">15(b)(1');">1), (2), the court orders: (1');">1) plaintiff to immediately pay (and the facility having custody of him to automatically remit) $9.81');">1 to the Clerk of Court for payment of the initial partial filing fee and (2) plaintiff to pay (and the facility having custody of him to automatically remit) to the Clerk of Court twenty percent of the money he receives for each calendar month during which he receives $1');">10.00 or more, until the $350 filing fee is paid in full. The court directs the trust fund officer to ensure that a copy of this order is mailed to each facility where plaintiff is housed until the filing fee has been paid in full. All payments shall be sent to the Clerk of Court, United States District Court, 21');">19 South Dearborn Street, Chicago, Illinois 60604, attn: Cashier's Desk, 20th Floor, and should clearly identify plaintiff's name and the case number assigned to this case.
The court next considers plaintiff's complaint. Under 28 U.S.C. § 1');">191');">15A, the court is required to screen prisoners' complaints and dismiss the complaint, or any claims therein, if the court determines that the complaint or claim is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. See Jones v. Bock, 549 U.S. 1');">199, 21');">14 (2007); Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 201');">13). Courts screen prisoners' complaints in the same manner they review motions to dismiss under Federal Rule of Civil Procedure 1');">12(b)(6). Maddox v. Love, 655 F.3d 709, 71');">18 (7th Cir. 201');">11');">1).
A complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain statement must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The statement also must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face, ” which means that the pleaded facts must show there is “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When screening a pro se plaintiff's complaint, courts construe the plaintiff's allegations liberally. Erickson v. Pardus, 1');">1 U.S. 89');">551');">1 U.S. 89, 94 (2007) (per curiam). Courts also must “accept all well-pleaded facts as true and draw reasonable inference in the plaintiff['s] favor.” Roberts v. City of Chicago, 1');">17 F.3d 561');">1');">81');">17 F.3d 561');">1, 564 (7th Cir. 201');">16).
As an initial matter, Federal Rule of Civil Procedure 8(a) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” While a minor amount of surplus material in a complaint is not enough to frustrate the goals of Rule 8, unnecessary length coupled with repetitiveness, needless complexity and immaterial allegations are grounds for dismissal. Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 201');">13). The 52-page document submitted by plaintiff (composed of 1');">16 hand-written pages and dozens of pages of exhibits) does not comply with Rule 8 insofar as the allegations are rambling, contain many pages of immaterial information, and are composed largely of legal conclusions, making it difficult for the court to identify the basis for plaintiff's claims. See Lindell v. Houser, 1');">1033');">442 F.3d 1');">1033, 1');">1034 n.1');">1 (7th Cir. 2006) (“District courts should not have to read and decipher tomes disguised as pleadings.”). Indeed, the court had to scour the exhibits to the complaint for purposes of this screening order, which it need not do. Kadamovas, 706 F.3d at 844.
The court also discerns no basis for federal liability stemming from plaintiff's allegations. First, a prisoner is entitled to due process protections only when the conditions of his discipline impose an “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Connor, 1');">15 U.S. 472');">51');">15 U.S. 472, 484 (1');">1995). A short confinement in segregation, by itself, is not an atypical or significant deprivation in relation to the ordinary incidents of prison life. See, e.g., Lekas v. Briley, 405 F.3d 602, 61');">12 (7th Cir. 2005) (concluding that 90 days in segregation did not support due process claim); Townsend v. Fuchs, 522 F.3d 765, 771');">1 (7th Cir. 2008) (concluding that 59 days in administrative segregation did not support due process claim). Likewise, demotion to c-grade and loss of visitation privileges do not implicate a liberty interest. See Thomas v. Ramos, 1');">130 F.3d 754');">1');">130 F.3d 754, 762 n.8 (7th Cir. 1');">1997) (collecting cases); Hoskins v. Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005) (concluding that prisoner not entitled to process for discipline of two months segregation, loss of prison job, loss of privileges, and transfer). Because a procedural due process claim lies only where the penalty faced by a prisoner-plaintiff implicates a protected liberty interest, see Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005), neither a substantive nor procedural due process claim exists on the facts alleged by plaintiff.

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International Brotherhood of Electrical Workers v.
By peaceful picketing, the agent of a labor organization induced union employees of a carpentry subcontractor on a construction project to engage in a strike in the course of their employment. An object of such inducement was to force the general contractor to terminate its contract with the electrical subcontractor, who was employing nonunion workmen. The National Labor Relations Board found that the labor organization and its agent (petitioners here) had committed an unfair labor practice within the meaning of § 8(b)(4)(A) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, and ordered them to cease and desist.
Held: this finding and the order are sustained. See Labor Board v. Denver Building Trades Council, ante, p. 341 U. S. 675. Pp. 341 U. S. 695-706.
1. The actions complained of had sufficient effect upon interstate commerce to sustain the jurisdiction of the Board. P. 341 U. S. 699.
2. The findings demonstrate that the picketing was directed at the union employees of the carpentry subcontractor to induce them to strike, and thus force the carpentry subcontractor to force the general contractor to terminate the contract of the electrical subcontractor. Pp. 341 U. S. 699-700.
3. It was sufficient that an objective, although not necessarily the only objective, of the picketing was to force the general contractor to terminate the contract of the electrical subcontractor. P. 341 U. S. 700.
4. Section 8(c) does not immunize peaceful picketing which induces a secondary boycott made unlawful by § 8(b)(4). Pp. 341 U. S. 700-705.
5. The prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)(A) carries no unconstitutional abridgment of free speech. P. 341 U. S. 705.
6. The order issued by the Board in this case properly enjoined petitioners from exerting this pressure upon the electrical subcontractor through other employers, as well as through the general contractor and the carpentry subcontractor. Pp. 705-706.
The National Labor Relations Board found that petitioners had committed an unfair labor practice within the meaning of § 8(b)(4)(A) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, and ordered them to cease and desist. 82 N.L.R.B. 1028. The Court of Appeals ordered enforcement. 181 F.2d 34. This Court granted certiorari. 340 U.S. 902. Affirmed, p. 341 U. S. 706.
This is a companion case to No. 393, Labor Board v. Denver Building and Construction Trades Council (the Denver case), ante, p. 341 U. S. 675, and No. 85, Local 74, United Brotherhood of Carpenters v. Labor Board (the Chattanooga case), ante, p. 341 U. S. 707.
amended by the Labor Management Relations Act, 1947, [Footnote 1] when, by peaceful picketing, the agent induced employees of a subcontractor on a construction project to engage in a strike in the course of their employment, where an object of such inducement was to force the general contractor to terminate its contract with another subcontractor. For the reasons hereafter stated, we hold that an unfair labor practice was committed.
In December, 1947, the Giorgi Construction Company, a partnership (here called Giorgi) having its principal place of business at Port Chester, New York, contracted to build a private dwelling in Greenwich, Connecticut. The contract price was $15,200. Giorgi did part of the work with its own employees, but subcontracted the electrical work to Samuel Langer and the carpentry work to Nicholas Deltorto, the principal place of business of each of whom was also at Port Chester. Langer's subcontract was for $325.
of the Electricians Union. The only workmen then present were Deltorto and his two carpenters, each of whom was a member of Local 543, United Brotherhood of Carpenters & Joiners of America, A.F. of L., here called the Carpenters Union. Patterson informed Deltorto and one or both of his workmen that the electrical work on the job was being done by nonunion men. Deltorto and his men expressed ignorance of that fact, but Patterson, on the second day of his visits, repeated the statement and proceeded to picket the premises himself, carrying a placard which read "This job is unfair to organized labor: I.B.E.W. 501 A.F.L." Deltorto and his men thereupon stopped work and left the project. Deltorto promptly telephoned Giorgi, the general contractor, that his carpenters had walked off the job because the electrical delegate had picketed it. Patterson also telephoned Giorgi saying that Langer was "unfair" and that Giorgi would have to replace Langer with a union contractor in order to complete the job. He added that, if Giorgi did not replace Langer, he would not receive any skilled trades to finish the rest of the work.
No communication was had with Langer by either of petitioners. The next day, Giorgi recited these circumstances to Langer and the latter released Giorgi from the electrical subcontract, saying that he would step aside so that a union subcontractor could take over. He did no further work on the project. Giorgi informed Deltorto that the trouble had been straightened out, and the latter's carpenters returned to the project.
thereof is to force or require Giorgi Construction Co. or any other employer or person to cease doing business with Samuel Langer."
Petitioners asked the United States Court of Appeals, under § 10(f), [Footnote 4] to review and set aside that order. The Board answered and asked enforcement of it. With one judge dissenting, the court below ordered enforcement. 181 F.2d 34. We granted certiorari. 340 U.S. 902. See Labor Board v. Denver Building and Construction Trades Council, ante, p. 341 U. S. 675.
1. Petitioners contest the jurisdiction of the Board on the ground of the insufficiency of the effect of the actions complained of upon interstate commerce. The facts, which were found in detail in the intermediate report, approved by the Board, and upheld by the court below, are, in our opinion, sufficient to sustain that jurisdiction on the grounds stated in the Denver case, ante, p. 341 U. S. 675. In addition, the contractor and both subcontractors in the instant case had their principal places of business in New York. The performance of their contractual obligations on this project in Connecticut accordingly emphasizes the interstate movement of the services and materials which they here supplied.
the carpentry subcontractor, to force Giorgi, the general contractor, to terminate Langer's electrical subcontract.
3. The Denver case also covers the point that it was sufficient that an objective of the picketing, although not necessarily the only objective of the picketing, was to force Giorgi to terminate Langer's uncompleted contract, and thus cease doing business with him on the project.
4. The principal feature of the instant case, not squarely covered by the Denver case, is that there is no finding here that the picketing and other activities of petitioners were mere signals in starting and stopping a strike in accordance with bylaws or other controlling practices of the Electricians and Carpenters Unions. The complaint here is not that petitioners, like the Trades Council in the Denver case, themselves engaged in or called a strike of Deltorto's carpenters in order to force the general contractor to cease doing business with the electrical subcontractor. Here, the complaint is that petitioners, by peaceful picketing, rather than by prearranged signal, induced or encouraged the employees of Deltorto to strike (or to engage in a concerted refusal to perform any services for Deltorto) in the course of their employment to force Giori, the contractor, to cease doing business with Langer, the electrical subcontractor.
or encouragement of employees to engage in a secondary boycott. Petitioners contend that § 8(c) immunizes peaceful picketing, even though the picketing induces a secondary boycott made unlawful by § 8(b)(4). The Board reached the opposite conclusion, and the court below approved the Board's order as applied to the facts of this case which it recognized as amounting to "bare instigation" of the secondary boycott. [Footnote 6] We agree with the Board.
and persuasion. [Footnote 7] There is no legislative history to justify an interpretation that Congress, by those terms, has limited its proscription of secondary boycotting to cases where the means of inducement or encouragement amount to a "threat of reprisal or force or promise of benefit." Such an interpretation would give more significance to the means used than to the end sought. If such were the case, there would have been little need for § 8(b)(4) defining the proscribed objectives, because the use of "restraint and coercion" for any purpose was prohibited in this whole field by § 8(b)(1)(A).
provisions of § 8(c) can become applicable. If § 8(c) were given the effect which petitioners urge, it would limit § 8(b)(4)(A) so as to give the words "induce or encourage" a meaning in that section different than they have in § 303. We think that the words are entitled to the same meaning in §§ 8(b)(4) and 303.
b. The intended breadth of the words "induce or encourage" in § 8(b)(4)(A) is emphasized by their contrast with the restricted phrases used in other parts of § 8(b). For example, the unfair labor practice described in § 8(b)(1) is one "to restrain or coerce" employees; in § 8(b)(2), it is to "cause or attempt to cause an employer;" in § 8(b)(5), it is to "require of employees;" and in § 8(b)(6), it is to "cause or attempt to cause an employer." The scope of "induce," and especially of "encourage," goes beyond each of them.
which it forbade to be accomplished directly."
"It was the objective of the unions' secondary activities . . . , and not the quality of the means employed to accomplish that objective, which was the dominant factor motivating Congress in enacting that provision. . . . In these circumstances, to construe Section 8(b)(4)(A) as qualified by Section 8(c) would practically vitiate its underlying purpose, and amount to imputing to Congress an unrealistic approach to the problem."
(Emphasis in original.) Id. at 812.
The legislative history does not sustain a congressional purpose to outlaw secondary boycotts under § 8(b)(4), and yet, in effect, to sanction them under § 8(c).
d. We find no indication that Congress thought that the kind of picketing and related conduct which was used in this case to induce or encourage a strike for an unlawful object was any less objectionable than engaging directly in that strike. The court below, after finding that there was "bare instigation" here, rather than an appeal to reason by "the expressing of any views, argument, or opinion," traced the development of the doctrine that he who provokes or instigates a wrong makes himself a party to it. That court then reached the conclusion that it is "highly unlikely that, by § 8(c), Congress meant to abolish a doctrine so deeply embedded in our civil and criminal law." 181 F.2d at 39.
appropriately give way to the specific provisions of § 8(b)(4).
5. The prohibition of inducement or encouragement of secondary pressure by § 8(b)(4)(A) carries no unconstitutional abridgment of free speech. The inducement or encouragement in the instant case took the form of picketing followed by a telephone call emphasizing its purpose. The constitutionality of § 8(b)(4)(A) is here questioned only as to its possible relation to the freedom of speech guaranteed by the First Amendment. This provision has been sustained by several Courts of Appeals. [Footnote 9] The substantive evil condemned by Congress in § 8(b)(4) is the secondary boycott, and we recently have recognized the constitutional right of states to proscribe picketing in furtherance of comparably unlawful objectives. [Footnote 10] There is no reason why Congress may not do likewise.
"When the purpose to restrain trade appears from a clear violation of law, it is not necessary that all of the untraveled roads to that end be left open and that only the worn one be closed."
And see United States v. United States Gypsum Co., 340 U. S. 76, 340 U. S. 90.
MR. JUSTICE REED, MR. JUSTICE DOUGLAS, and MR. JUSTICE JACKSON would reverse the judgment of the Court of Appeals.
The complaint referred originally not only to the unfair labor practice here considered, but also to coercion in violation of § 8(b)(1)(A), and to threats of action addressed to other employers. Those charges were dismissed by the Board, and are not before us.
61 Stat. 148-149, 29 U.S.C. (Supp. III) § 160(f).
61 Stat. 142, 29 U.S.C. (Supp. III) § 158(c).
"They established a picket at the building project of Klassen. And they placed Klassen on a so-called blacklist and gave wide circulation of the fact among those particularly interested in the building industry, all for the purpose of compelling Klassen to cease doing business with Wadsworth. There is nothing in the language or legislative history of section 8(c) which indicates persuasively a Congressional intent to create an asylum of immunity from the proscription of section 8(b)(4)(A) for acts and conduct of that kind."
Labor Board v. United Brotherhood of Carpenters, 184 F.2d 60, 62.
Petition for certiorari was filed in this Court, and action on the petition was withheld pending decision of the instant cases. The United Brotherhood of Carpenters filed a brief as amicus curiae in connection with the hearings of these cases, and the petition of certiorari is this day being denied. post, p. 947. See also United Brotherhood of Carpenters v. Sperry, 170 F.2d 863, 868-869; Printing Specialties Union, 82 N.L.R.B. 271; Bricklayers Union, 82 N.L.R.B. 228; Local 1796, United Brotherhood of Carpenters, 82 N.L.R.B. 211; Dennis, The Boycott Under the Taft-Hartley Act, N.Y.U. Third Annual Conference on Labor (1950), 367, 382-386.
"1. To lead on; to influence; to prevail on; to move by persuasion or influence."
"1. To give courage to; to inspire with courage, spirit, or hope; to raise the confidence of; to animate; hearten. . . ."
"2. To embolden, incite, or induce as by inspiration, recommendation, etc., hence, to advise. . . ."
"3. To give help or patronage to, as an industry; to foster. . . ."
Webster's New Int'l Dict., Unabridged (2d ed.1945).
"SEC. 303. (a) It shall be unlawful, for the purposes of this section only, in an industry or activity affecting commerce, for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is --"
"(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) may sue therefor in any district court of the United States subject to the limitations and provisions of section 301 hereof without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit."
61 Stat. 158-159, 29 U.S.C. (Supp. III) § 187.
See Labor Board v. United Brotherhood of Carpenters, 184 F.2d 60, 62, cert. denied this day as No. 387, post, p. 947; Labor Board v. Local 74, United Brotherhood of Carpenters, 181 F.2d 126, 132, aff'd as No. 85, post, p. 341 U. S. 707; Labor Board v. Wine, Liquor & Distillery Workers Union, 178 F.2d 584, 587-588; Printing Specialties and Paper Converters Union v. Le Baron, 171 F.2d 331, 334-335; United Brotherhood of Carpenters v. Sperry, 170 F.2d 863, 868-869. See also, as to § 8(b)(4)(C), Douds v. Local 1250, Retail Wholesale Dept. Store Union, 170 F.2d 700, 701.
See Building Service Employees International Union v. Gazzam, 339 U. S. 532; International Brotherhood of Teamsters v. Hanke, 339 U. S. 470; Hughes v. Superior Court, 339 U. S. 460; Giboney v. Empire Storage & Ice Co., 336 U. S. 490.